)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2091

CITATION : R. v.

Nkemka, 2013 ONSC 2091 COURT FILE NO.: 12-70000546-0000 DATE: 20130430 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – DONATUS NKEMKA Defendant )) )) )) )) ) ) Corie Langdon , for the Crown Brady Cunningham , for the Defendant HEARD: April 2-5, 9,11,12, 2013 Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada .

SPIES J. Introduction [ 1 ] At approximately 1 a.m. in the early morning hours of Sunday, November 7, 2010, following a night of partying and heavy drinking, the complainant G.C. was put in the backseat of an orange and green taxi by her friend Z.R., at the corner of College Street and McCaul Street in the City of Toronto. Although a formal admission was not made, the evidence is clear that that taxi was Beck taxi #182 and that it was being driven at the time by the defendant Donatus Nkemka. [ 2 ] Ms. C. has no memory of getting into the taxi and alleges that she awoke to find the taxi stopped and Mr.

Nkemka hovering over her and digitally penetrating her vagina with two fingers of his hand while she was lying on the backseat. Mr. Nkemka did not testify but his statement to police given several months after the incident, on April 12, 2011, at a time when he was only a person of interest, was admitted into evidence as part of the Crown’s case. Mr. Nkemka had a very different version of what transpired as he was trying to drive an inebriated female passenger to her home. He denied the allegations. It is his position that this passenger, now known to be Ms.

C., did not pass out in his backseat but rather had him driving in circles and was incapable of directing him to her home. He finally let her out of his taxi after driving around in circles for 40 minutes or so when she objected to him taking her to a police station. [ 3 ] Mr. Nkemka is charged with sexual assault. He re-elected trial by judge alone and pleaded not guilty. [ 4 ] At the outset of trial Mr. Cunningham brought a s. 276 application which I granted in part; see R. v. Nkemka , 2013 ONSC 2121 .

He also brought an application alleging a breach of his s. 7 Charter rights to stay the charge on the basis that the police failed to preserve an in-taxi video which he says would establish Mr. Nkemka’s innocence. That application was argued at the end of the trial along with the merits of the Crown’s case. It is agreed that the correct procedure is that I consider first whether or not I should acquit Mr. Nkemka and that it is only if I decide to convict him that I should first consider the stay application before making my finding of guilt. [ 5 ] The Crown called one of Ms.

C.’s friends who was at the party, C.K., but did not call anyone else who saw her at the party or the parkette where she went afterwards. I also did not hear from Z.R., the friend who put her in the taxi. The Crown did call Deidre Bainbridge, the sexual assault nurse who examined the complainant and, in addition, I received Ms. C.’s cell phone records for the material time which assist with pinning down times. Evidence was also called about the data produced as a result of the GPS system in the taxi Mr.

Nkemka was driving, through an expert witness, Aaron Neufeld, which both the Crown and Defence submitted supported the different versions of events as between Ms. C. and Mr. Nkemka as to how, where and when the taxi travelled. In addition, evidence was called about the in-taxi video and D.C. Elzinga testified about why she did not take steps to preserve it. This evidence is relevant to the s. 7 application. Evidence

The Party and the Complainant’s Level of Intoxication and Consciousness [ 6 ] On the night of Saturday, November 6, 2010, Ms. C. went out to her friend I.’s house party at M[…] Street in Toronto with a friend named E., arriving around 9-9:30 p.m. They were among the first to arrive. She and her friends were working at Club Monaco at the time. There were 30-40 people at the party, most of whom she knew as most of the guests were co-workers. [ 7 ] Ms. C. testified that she arrived at the party sober but she admitted that she started drinking right away and that she became intoxicated.

She could not say for certain the amount of ounces of alcohol that she drank but conceded it was a lot. Over the course of a few hours she believes that she had about five to six whiskey and cokes in cups the size of Dixie cups mixed 50/50, maybe three shots of straight vodka, two glasses of wine and three beers. All Ms. C. recalled eating was a slice of pizza at the party. [ 8 ] Ms. C. testified that she had consumed the same quantity of alcohol on other nights; probably somewhere between 10-20 times and that she had been drinking heavily for the majority of that year.

She said that she was usually able to handle her alcohol and would remain in a “cognitive state” but she also recalled about three prior occasions over the previous year when she had “blacked out” resulting in a similar loss of memory to what she experienced on the night in question. She said in the past she has smoked marihuana when she has drunk a similar amount of alcohol and that she has “blacked out” after smoking marihuana. She has had memory lapses lasting anywhere from two to four hours and sometimes for the entire night. [ 9 ] In her evidence in chief Ms.

C. said that she could remember everything that happened at the party up until the time she left the party and that it might have been 11:30 p.m. or 12:30 a.m. because it was the night of the Daylight Savings/Standard Time change. She said she experienced no blackouts at the party. In cross-examination, she testified that she also remembered walking up towards College Street after the party. After being taken to her statement to police, Ms. C. agreed that if the clock’s changed at 2 a.m. on the Sunday morning, she blacked out around 11:45 p.m. on the Saturday night. As Ms.

C.’s evidence in cross-examination continued, she began to modify this evidence. She said that her reference to 11:45 p.m. was when she was starting to “lose focus” and “not be as sharp” in terms of her memory. She testified that she believes she left the party to go to the parkette at about 12:30 a.m. She would not say she had blacked out for two to three hours; she thought she had blacked out only for an hour or two. Later in her evidence Ms. C. testified that she thought she was totally blacked out, i.e. unconscious for 45 minutes to 1½ hours but not two hours. [ 10 ] Ms.

C. admitted that when she spoke to police she did not remember leaving the party, being in the parkette or walking up to College but testified that she does recall that now. She admitted telling police that she blacked out before she left the party and that nobody realized it because they were all walking and talking. To explain this inconsistency Ms. C. said that in her police statement she was referring to the “process of blacking out” when her memory was “starting to go” at 11:45 p.m., as opposed to being “totally cognitive”.

She testified that after drinking heavily she might not remember events the next day for a certain period of time and then in a week or two or months later something would come back to her. [ 11 ] Ms. C. did admit that as of 11:45 p.m. she could not recall everything that had happened to her until she woke up in the taxi which she believes was somewhere between 1:45 and 1:50 a.m. She saw the time on her phone when she was walking to her friend, C.K.’s, place. She admitted that would mean she was blacked out for 2-3 hours.

She then said that she did not believe she left the party as early as 11:45 p.m. but that that was when “my consciousness started to be disarrayed”. [ 12 ] Ms. C. testified that she went outside to have a cigarette and saw about 20 people across the street in a parkette smoking and drinking. When she left the house she had formed no clear intention of leaving the party. She went to the parkette and started talking to friends named Colin and Desiree for about 10-15 minutes, trying to decide whether to stay or go. Ms. C. testified that she and her friends and others then started walking towards College.

The general idea was that they would go to College and then continue from there. She had no intention of going home but rather intended to continue partying. [ 13 ] At first Ms. C. denied the possibility that she went back to I.’s house after she was at the parkette but then she said it was a definite possibility that she had to so she could use the bathroom. However, she also stated that given how drunk she was she wouldn’t put it past herself that she may have urinated outside in the park although she did not recall that. [ 14 ] Ms.

C. said that she felt rather drunk as they were walking up to College and admitted everything was blurry but she said that she did not know she was about to pass out. Ms. C. testified that her friend Colin lit a joint; a marihuana cigarette, and she took a puff which she believes triggered her blackout. However she testified that she continued to walk up to College with Colin and other friends in twos and threes; physically she was walking by herself. She blacked out before they reached College.

She guessed that she was unconscious as she had no recollection or memory of what happened for a period of time after that. The Timing of Events and the Theory of the Crown [ 15 ] Salvatore Iaccio was qualified as an expert to give opinion evidence in the

interpretation of cell phone records and the operation of wireless networks. He provided records in response to a production order with respect to Ms. C.’s cell phone number, XXX- XXX-XXXX, which he then reviewed and extracted data from. He requested data concerning all calls made on that cell phone or received by that cell phone on November 7, 2010. He produced a spreadsheet entitled “Customer Usage Report with Towers”. It sets out whether or not Ms.

C.’s cell phone was the originating phone or the receiving phone, the duration of the call, the nature of the event; namely whether it was voice or text, and the cell tower used to receive or send the call. Given that each cell tower emits a signal for a 360° radius from the tower, and given the possibility of buildings blocking the signal, I found that the evidence as to which tower was used to send or receive the call not necessarily indicative of the area in which the cell phone was.

In any event the sector in which the cell phone could be was significantly large such that the information would not be of assistance. [ 16 ] Ms. C. testified that the number she used to call her boyfriend was XXX-XXX-XXXX and the number she used for C.K. was XXX-XXX-XXXX. There is no issue that calls to those numbers were made by Ms. C. just before 2:00 a.m. on the morning of November 7 th . These times were after the change in time due to Daylight Savings. With respect to the records of calls, the relevant information is as follows:

• Ms. C. called her boyfriend at 1:49:59 for 0 seconds • Ms. C. called C.K. at 1:50:57 for 474 seconds • Ms. C. called C.K. again at 2:02:46 for 8 seconds • Her phone was not used again until 10:24 a.m. when Ms. C. called a number that was not identified. During the course of the day Ms. C. made or received well over 100 calls. [ 17 ] As I will come to, Ms. C. testified that she made the calls to her boyfriend and then C.K. about two minutes after she left the taxi. Ms. Langdon’s position during the trial was that Ms. C. was in Mr.

Nkemka’s taxi between 1:00 to about 1:49 a.m. after the Daylight Savings time change. As I will come to, Ms. Langdon modified her position during closing submissions submitting that Ms. C. may have left Mr. Nkemka’s taxi earlier. [ 18 ] Ms. C. testified that she noticed that a call had been made on her phone at 1:48 or 1:49 a.m. on Sunday morning, November 7 th , that the number was unfamiliar and not a contact in her phone. The inference was that this call had been made by the taxi driver although she did say she knew for sure if it was made while she was in the taxi. When Ms.

C. was shown her phone records she could not recall the unfamiliar number and the only one that looked unfamiliar was the number called at 17:57 on the Sunday afternoon. There is, therefore, no evidence of any calls made by Mr. Nkemka on Ms. C.’s phone. The Two Versions of What Happened in the Taxi (

a) Ms. C.’s Account [ 19 ] Ms. C. testified that she has no recollection of getting to College and that the next thing she could recall was coming to in the backseat of the taxi. She did not know how she got into the taxi. She was lying on her back, completely horizontal, with her head behind the driver’s seat. One of her feet may have been up on the backseat and the other in the footwell behind the passenger seat. As she came to she saw a man “hovering” over her from his waist up and his fingers were in her vagina. According to Ms.

C. this man was squatting or kneeling in the back of the vehicle in the footwell between the middle to the passenger side of the vehicle. All of the doors of the taxi were closed. She denied that the driver was in the driver’s seat. As I have already said, these allegations must be against Mr. Nkemka who was the taxi driver who picked Ms. C. up. [ 20 ] Ms. C. said that she was wearing a dress, tights, boots and jacket. Her dress was pulled up and her tights were pulled down. She does not believe she was wearing underwear at the time. She was naked where the man was touching her.

She could not say if the man was using his left or right hand but said two of his fingers were inside her vagina. When asked specifically what fingers the man used she said his index and middle finger were inside her vagina and she remembers feeling movement from his fingers. She believes this is what jolted her to “come to”. Ms. C. has no recollection of the man inserting his fingers in her vagina and she does not know how long he was touching her before she came to. She did not consent to this touching. When she came to the man almost immediately removed his fingers.

She has no recollection of pain but did feel some discomfort. It felt very foreign to her and it took her a second to realize what was happening. In cross-examination she testified that she was fully conscious and that the physical activity of the man “was quite sobering”. She denied being in a blurry state. She felt fully conscious but would not say she was sharp or extremely focused; she felt like she had just woken up. Ms. C. admitted she might still have been a little bit “out of it” but said that she was conscious enough to realize what was going on. [ 21 ] When Ms.

C. came to, all that she could make out was that this man was somewhere between his 30s and 50s, black, that he had black or dark brown hair, had an average body build and she felt his eyes were spaced wide apart. She made no observation of whether he had facial hair nor of his height although she didn’t feel that he was particularly short; less than five foot seven or tall; greater than six feet. There was nothing distinctive about the man’s voice. She made no observation as to whether or not the man was wearing glasses.

She thought for a brief moment that he was an acquaintance of hers named Ben but then realized he was not. There was some light inside or outside the car through the front window and she saw light around the man resulting in a silhouette. She testified that she would not recognize the person who assaulted her again and no efforts were made to have her see if she could identify Mr. Nkemka in a photo line-up. [ 22 ] Ms. C. testified that she pulled her tights up, her dress down and asked: “Where am I?” The man said that she was at Carlton and Sherbourne which is where she was living at the time.

She looked out the windows, however, and realized that was not where she was. She saw a meter that was on inside the taxi and it was then that she realized that she was in a taxi. The meter had a fare displayed of $13 but it was not running because the taxi was parked. She did not see changes in the fare on the meter while she was looking at it. [ 23 ] The next thing Ms. C. asked the man was: “Where is my phone?” because she wanted to figure out the time. Ms. C. testified that the man reached into the front seat and passed her her phone. She rifled through her purse which she found in the footwell.

According to Ms. C. her phone was the only thing in the front seat. The man had moved out of the way and she opened the door and got out of the taxi. She believed that she got out of the taxi first but she wasn’t sure. After Ms. C. got out of the taxi she said a few things to the man. In particular she testified that she told the man that he was a “dirty nigger” and that “your mom should be ashamed of you”. The man did not respond. [ 24 ] Ms. C. testified that she did not pay the $13 fare. She believes she had $30 and possibly a debit card with her.

She testified that she has taken a taxi many times from where the party was to where she was living and that the ride would normally be 5-10 minutes long depending on traffic. The fare would, on average, be between $9 and $15; usually over $10 if on a Friday or Saturday night. [ 25 ] When Ms. C. got out of the taxi, she testified that she looked around and saw that she was not at Carlton and Sherbourne. She realized she was on Gerrard Street and that she was on a main street. The taxi was parked but she couldn’t recall if it was diagonal or parallel to Gerrard. Ms.

C. testified that she did not even know if it was parked on Gerrard but said that she was on Gerrard when she exited the taxi. Later in her evidence in chief Ms. C. said there was a definite possibility she was on Gerrard as she exited the taxi or that

she might have been on a side street perpendicular to Gerrard. She made no observations whether other vehicles were around or on the street. [ 26 ] The first light that Ms. C. saw after exiting the taxi was the light from a beer store sign that was quite high up about 12-16 feet away when she got out of the taxi. She thought she was close to the beer store on Gerrard which is located at 277 Gerrard St. E. near the intersection of Gerrard and Seaton Street. She also saw streetlamps on Gerrard. [ 27 ] Although Ms.

C. testified that she backed away from the taxi diagonally and then turned and walked away, in her evidence in chief she testified that she made no observations about the type of vehicle she had been in. As she backed away from the vehicle the driver stayed close to the taxi and made no attempt to follow her. She then saw him walking towards the driver’s side of the taxi. The only observations Ms. C. made were of the inside of the taxi; namely that there were black mats in the footwells. [ 28 ] It was put to Ms. C. that she could see that the vehicle was a van, not a car or sedan.

She responded that it was not what she saw but rather that she had felt she was in a vehicle that was elevated more than average and so she sensed she was in a van. She testified that upon exiting and backing away she didn’t think it was a van. She said she was conscious enough to see if the taxi was a van or car but didn’t take the time to do so. She was trying to leave as quickly as possible. Ms. C. admitted however, telling police that she believed the vehicle was a van and that she was quite surprised when one of her friends told her it was a regular car. [ 29 ] Ms.

C. also admitted telling police that she did not know how the man had enough room to squat in the backseat of the vehicle. She told police that as she came to it felt that she was more elevated than normal and as she backed away from the vehicle she saw it was a van. She added, however, in her statement to police that she was so out of it, it might have been a normal vehicle. When asked if this portion of her statement helped her refresh her memory as to whether the vehicle was a car or a van, Ms.

C. answered that for the majority she still feels the same way save on the video she said she noted that it was a van as she was walking away. She insisted that if she had taken the time she would have been able to distinguish whether it was a van or a regular car. She said she didn’t remember looking at the vehicle and her priority was to create some distance. She agreed, based on her statement to police, that perhaps she had observed that the taxi was a van. It was then put to her that she was not conscious enough to tell if the taxi was a van or a car to which she answered “OK”.

She denied that she was not conscious enough to tell if she was sexually assaulted or not. She did confirm again however, that it was possible that the assault occurred in a van. [ 30 ] In re-examination Ms. C. was asked what she meant when she admitted that she was not conscious enough to differentiate between a van or a car, that at the time she was not conscious enough to actually focus on the vehicle and that she didn’t take the time to focus on the vehicle and differentiate whether it was a van or a car. Ms.

C. responded that she used the term “level of consciousness” to refer to whether or not she was awake. She referred to the fact that she collected her belongings, tried to figure out where she was and was able to walk away without assistance in reference to her level of consciousness although she admitted that it was impacted by her level of intoxication. [ 31 ] Ms. C. testified that it was her understanding the driver of the taxi was to take her to Carlton and Sherbourne. I presume this is information she obtained from friends afterwards.

She lived close to that intersection, just north of Carlton; she could see the intersection from her front door. She admitted it is possible she couldn’t give the driver exact directions. She vacillated on what she may have told the driver. She denied the possibility of telling the driver to turn down a one-way street at first but then admitted it was possible. She testified she did not “feel” that it was possible for that to happen and said it “seemed” unlikely that she gave directions to go down a one- way street. She admitted, however, that she does not know what was or was not said to the driver. [ 32 ] Ms.

C. made a call on her phone to her boyfriend, who she lived with at the time, but he did not pick up. She made a note that the time was around 1:45 a.m. which is off the actual time of the call by almost five minutes. She then called her friend, C.K., whom she knew lived at Jarvis and Gerrard. She had a sense of urgency to contact someone she was familiar with. She testified that she made the calls about two minutes after she exited the vehicle. [ 33 ] Ms. C. was able to reach C.K. and asked her if she was home because she had also been at the same party.

She told C.K. that she didn’t exactly know where she was and then told her what had happened while she was walking to her apartment. When she got to C.K.’s place she called her so that she could come to the door to get her. Ms. C. testified that she told C.K. and her roommate what had happened and then went to sleep. She spent the rest of the night with C.K.. She did not call the police that night. [ 34 ] The next day Ms. C. testified that she was frantically trying to get hold of Colin so she could piece together how she got into the taxi.

Her boyfriend asked what was going on and she told him what had happened at about 4-5 p.m. that day. He suggested she call someone and they went to the hospital on the Sunday night. [ 35 ] When Ms. C. was asked whether she suffered any physical injury, Ms. C. very fairly said she could not say if it was from this particular incident but that when she was examined on the Sunday, the nurse found tears in her vagina. She had not felt any pain prior to going to the hospital. Emotionally she felt frustrated and not quite like herself.

She didn’t “feel comfortable in my own skin” and had a sense of unease and unsettlement. [ 36 ] Presumably as a result of my s. 276 Ruling, Ms. Langdon asked Ms. C. whether or not she had any “penetrative sexual activity” on the Friday, November 5 th . Ms. C. said that she could not remember but that she had a boyfriend. She testified that she had none on Saturday the 6 th and none before attending the hospital on Sunday November 7 th . In cross-examination however, Ms. C. agreed there could have been sexual activity that she didn’t remember but she denied that any occurred at the party.

She testified that she knew for a fact that she didn’t have sex at the party and denied the possibility that she didn’t remember some sexual activity if it had occurred at the party. Ms. C. was firm that there was no sex at the party and said that if she engaged in any sexual activity that night that it could only have been between her walking up to College and waking up in the taxi. She admitted, however, that lots of things could have

happened to her that she did not recall. [ 37 ] In the course of complying with the rule in Browne v. Dunn , Mr. Cunningham put what I presumed would be Mr. Nkemka’s defence to Ms. C. She testified that “I would say anything is possible before I came to”. Ms. C. even admitted that it was possible that she exited the taxi and entered or exited a second vehicle. (

b) Mr. Nkemka’s Account [ 38 ] Mr. Nkemka attended the police station at the request of Detective Constable Elzinga before he was charged with sexual assault. He gave his first statement on April 12, 2011. Mr. Cunningham conceded that the statement was voluntary and it was introduced as part of the Crown’s case. [ 39 ] The background information from the interview is as follows. Mr. Nkemka grew up in the eastern part of Nigeria. He came to Canada in 1991 and is now a Canadian citizen. His father brought him and his brother to Canada. He has 12 years of education. He is married and his wife is from Nigeria.

He has four children who at the time of the interview ranged in age from 2 to 7. His wife goes to school. Mr. Nkemka had been driving a taxi for 16 years. He was paying a fee daily to rent the taxi and always worked nights from 6:30 p.m. to 6:30 a.m. every day but Sunday. He had been driving taxi #182 by the time of the interview for about 10 months to a year. It was, therefore, the taxi he was driving at the material time. It is a Ford Taurus painted in Beck colours of orange and green and looked like a typical taxi with a light on top. Mr.

Nkemka told the officers that he did not switch his shifts with the driver who was driving in the daytime named Ali. If he needed someone to drive for him he asked Ali to find someone. Mr. Nkemka told police that Beck would not know who was driving the taxi on any particular day as that is a matter between the driver and the owner of the taxi. He told the officers that his taxi had GPS, that a camera was installed in his vehicle and that every time you open the door it takes a picture of the person. [ 40 ] Mr.

Nkemka was very respectful throughout the interview conducted by Detective Rob Thomas which lasted about four hours. At the outset of the interview, when Detective Thomas told Mr. Nkemka that he wanted him to explain what he thought the purpose of the interview was, Mr. Nkemka mentioned two outstanding police cases where he is the complainant. When he was told it was not those matters but rather a matter with respect to an incident that occurred on November 7, 2010 late on a Saturday night or early Sunday morning, Mr. Nkemka described an incident where a customer was refusing to pay.

When he ultimately was told by Detective Thomas that it was something completely different he seemed genuinely surprised. Detective Thomas then gave him the particulars of the complainant’s allegations. He was told that if he was the driver of the taxi he could be charged with sexual assault and was given his rights to counsel. After some discussion to ensure he understood his rights, given English was clearly not his first language, Mr. Nkemka decided to proceed with the interview without a lawyer.

When asked later in the interview after he was told the details of the allegations, he continued to be of the view that he did not need a lawyer although again, it took some time for Detective Thomas to satisfy himself that Mr. Nkemka understood he could be charged, the cautions and that he was waiving his right to a lawyer. [ 41 ] Mr. Nkemka initially responded that he didn’t “think” that he’d ever done this and he didn’t “think” that this had happened anywhere. He added that if he would do that he would know and remember and that he didn’t “think” that something like that had occurred.

Although at first blush this is an interesting choice of words for a denial, based on the interview as a whole, since English is not Mr. Nkemka’s first language, there were several times when Detective Thomas had to repeat himself to ensure that Mr. Nkemka understood what was being asked or what he was being advised. There was no suggestion by counsel that he needed an interpreter but because of this concern I have not placed any weight on his use of the word “think”. He was consistent throughout that he had not sexually assaulted Ms. C. [ 42 ] Mr.

Nkemka was asked to take his mind back to Saturday, November 6 th and tell the Detective what happened. He asked the Detective to give him an idea of where he picked him or her up. He was told McCaul Street and College Street. At that point there was a long pause. Mr. Nkemka then asked whether she was drunk and where she was going and was told it was Carlton and Sherbourne. He then asked if she was Chinese after another long pause and asked the Detective to confirm that she spoke fluently in English. At this point Mr. Nkemka seemed to have recalled Ms.

C. although he, of course, did not refer to her by name. [ 43 ] Mr. Nkemka told Detective Thomas that the woman was getting into the taxi; he thought with some of her group of friends and that if she was the lady she was “tipsy” but knew what she was doing. Mr. Nkemka said he was flagged down at exactly McCaul and College, on the southeast side. He couldn’t remember where he was coming from and he told the officers that he didn’t want to make a mistake. Three or four girls flagged him down and he thought they were all going to get in the car but the group of friends just put the lady in the car.

This group of girls asked him to take good care of their friend and told him that they had taken his taxi number. Mr. Nkemka stated that the woman’s friends told him to take her to Carlton and Sherbourne but as soon as he drove off, she told him to take her to Jarvis and Carlton. [ 44 ] There were many other people walking around. Mr. Nkemka couldn’t give any description with respect to the women except none were over 25 years old. The woman in question was from China, South Korea or Japan, i.e. Asian. She spoke clearly without an accent. She got in the passenger side of the backseat.

Clearly from the evidence of Ms. C. and the statement of Mr. Nkemka, he was the taxi driver who picked her up. [ 45 ] Mr. Nkemka told the officers that he then drove on College towards Carlton and when he got close to Jarvis and Carlton he was told by the woman to keep driving. As soon as he passed Sherbourne she asked him to take a right on a one-way street. He told her he couldn’t because it was a one-way street. She told him to take a right on the next street. The next street was one-way too and so the woman told him to go around.

He did so and he came back to one of the one-way streets and kept driving on it and ended up getting back to Carlton again. His statement is not clear but there is some suggestion that he did this a second time because Ms. C. asked him to go around a second time. [ 46 ] In any event when they got back to Carlton Ms. C. asked where she was and Mr. Nkemka said Ontario and Carlton and he was asking her where she lived. She said she didn’t know where he was driving and that he should go around again. At this point the woman told him that he had taken her the wrong way and she was not going to pay him.

He responded that she was directing him the wrong way and that he could not keep driving around because this was his busy time, namely 1 a.m. She still did not tell him where she was going.

There is some confusion as to where Mr. Nkemka stopped because when he reviewed the events a second time with the officers he told them that after he stopped the first time at Sherbourne and Gerrard the woman told him to drive and he went around again and stopped and said “you must pay me”. [ 47 ] According to Mr. Nkemka he went around again in the same route that he did before and this time he stopped near Sherbourne and Gerrard (which would make it the second not the first stop). He did not say, nor was he asked, if he turned the ignition off or for how long he was stopped. Mr.

Nkemka said that he asked the woman since she didn’t know where she was going to just let him take her to a police station. She said she was kidding and he said he was serious because the fare should be $10 and now the meter was going to $15. If she was going to feel that he was driving around he wanted her to tell him where to go or he was going to let her off there. She said if he did she wouldn’t pay him. He said “no” she must pay him and she responded that he had to take her where she was going. She said she was drunk and that he should take her where she was going. Mr.

Nkemka said he replied that that was why he picked her up and that it is his job but his problem was what was her destination. He asked what her address was. She said he was wasting her time. [ 48 ] In any event it is clear that Mr. Nkemka told the officers that he went around a second time. He kept asking Ms. C. for her address and where did she want to go and she said he was driving her around.

When he went around again (it’s not clear if this is the second or third time, but it must have been a third time based on the rest of the evidence) and got close to coming back to Carlton he said that he parked the car on Carlton. Again he was not asked if he turned off the ignition. He told the officers that he told the woman that if she didn’t want to pay him she should get out of the car and let him go and make money. She then said she wasn’t going to get out and that he must take her to where she was going.

He was asking her where she was going and she was cussing him and she told him that “she’s not a fucking taxi cabbie and stuff like that”. He told her to get out of the car or tell him where she was going so he could drop her. He told her “OK don’t pay me anymore”. [ 49 ] Mr. Nkemka told the officers that he was going around the area for a good 30-40 minutes. She’d say “it’s here” and then “no, it’s not here”. At some point Ms. C. fell asleep and then he corrected himself to say that she was lying down in the backseat when he was talking to her. When she lay down, her head was close to the other door.

When he saw that she had fallen asleep he stopped the car right away. When asked later at what point he saw the woman lying down in the car he said after she asked him to keep driving he noticed it and stopped the car. Mr. Nkemka stated that she was only lying down for 10-20 seconds that he could see. She was OK and communicating with him. If she had fallen asleep he would have taken her to the police station. [ 50 ] Mr. Nkemka couldn’t remember where he was when he first noticed Ms.

C. lying down and, in particular, if it was on Seaton or Ontario or “whatever”; it was one of those streets between Sherbourne and Parliament although it was not either of those particular streets. He then said it was a street off Gerrard and that he noticed she was lying down when he was north of Gerrard and one of the streets that end at Carlton but he had not yet reached Carlton. He did not know the name of the street. [ 51 ] Mr. Nkemka stated that once he stopped the car he called the woman but she didn’t answer.

He repeatedly told her to wake up and was tapping and hitting her shoulder while he was turned around but still seated in the driver’s seat. He later stated that he touched her on the head and asked her to wake up. When he tapped her head she didn’t wake up so he pulled her on the shoulder to wake her up. He kept “bugging” her shoulder. She asked him if he had taken her to where she was going and he told her to get out, not to pay him and that she lived around this area. She refused and so he said he was going to take her to the police station.

He started to move the car and as soon as he did so she told him to stop the taxi. He had only driven for a few metres before she asked him to stop. He stopped and let her out. She got out of the taxi, banged the door closed and called him an asshole. He left because she had already taken a lot of his time and went back to work. Nothing happened after that, he just kept working. [ 52 ] Mr. Nkemka told the police that he did not know where Ms. C. went. He estimated that she was in his taxi for about a half an hour. The meter ended at about $18. She never paid him any money. As the interview progressed Mr.

Nkemka said he couldn’t remember if the woman, in fact, did pay him something at the end. He thought maybe she said she would pay him $10 and he said “whatever”, just pay him but he could be mistaken. He was focused on her getting out of the taxi. He repeatedly denied ever getting out of the taxi himself. These denials continued even though he was asked if the police were to speak to witnesses would none of the witnesses tell the officer that they saw him getting out of the taxi. [ 53 ] Mr. Nkemka was specifically asked if he could tell Detective Thomas about this woman’s cell phone.

He then testified that when she wanted to go she checked and did not see her cell phone. He did recall that she said “Where’s my cell phone?” He looked at the backseat and he saw it and she took it. This was as she was opening the door. He testified that she picked it up and that he never touched it. He was asked if the police were to check the cell phone for fingerprints would they find his fingerprints. He said “no” and that he didn’t touch the cell phone. He was then asked by Detective Thomas if it was possible that he picked it up and gave it to her. Mr. Nkemka responded that he didn’t want to make a mistake.

He repeated that she asked where her cell phone was when she got out of the car and that it was in the backseat. He then said “her cell phone was beside me. I don’t know if it’s me who gave it to her, sir. I don’t want to lie.” He said, however, that the cell phone was definitely in the backseat when she was lying down. [ 54 ] When asked about the time of this event, Mr. Nkemka said it was on a Saturday night close to rush hour which is from 1 a.m. to 3 a.m. It would be after 1 a.m. not midnight; he settled on it being somewhere between 1 and 2 a.m.

He was not asked about the Daylight Savings change in time. [ 55 ] Detective Thomas told Mr. Nkemka that if somebody put their fingers inside a woman’s vagina they would be able to swab that vagina and hopefully collect DNA from it. He asked Mr. Nkemka if he would consent to their taking a DNA swab and told him that it would go to the Centre of Forensic Science and they would match whether or not his DNA was ever left inside this girl’s vagina. Without any hesitation Mr. Nkemka agreed. He was told it was a voluntary process and at this point D.C. Elzinga gave him formal instructions and cautions.

He still consented to giving a DNA sample. Again, he said he did not need to call lawyer. [ 56 ] After the DNA sample was taken, Detective Thomas came back into the room. He told Mr. Nkemka that he’d had a chance to go over all the evidence in this case including eyewitness testimony, a statement from the victim, speaking to other officers, and that there was no doubt in his mind whatsoever that Mr. Nkemka touched the complainant for a sexual purpose. What he didn’t understand was why he had done so. At this point the interview took a strange turn from my observation. The Detective started to do virtually all of

the talking, presumably in an effort to get Mr. Nkemka to capitulate and confess to the alleged offence. [ 57 ] Detective Thomas told Mr. Nkemka that seizing photographic images from the inside of a taxi was easy because every time the taxi door opened a photograph was taken. He made no comment as to whether that had been done in this case. [ 58 ] The Detective professed to have 25 years experience and stated he was only doing “this”, from which I took he was only taking statements. Although I do not understand the merit in long soliloquies from the Detective, whenever Mr.

Nkemka tried to respond he was immediately cut off and this occurred several times as soon as the Detective realized he was going to repeat his denial of committing the alleged assault. At no time did the officer let Mr. Nkemka speak and he would repeatedly go into these lengthy statements of his own. This must have been frustrating for Mr. Nkemka but he did not “break” when subjected to this type of questioning and soliloquies repeatedly. This took up about two of the four hours of the interview. [ 59 ] Eventually Mr. Nkemka suggested “why not us leave it this way…my DNA probably have taken …”.

I presume what Mr. Nkemka was saying is that the DNA analysis would determine whether or not he was innocent. He said that he didn’t know this lady and she didn’t know him and he was not going to say that she wanted to accuse him so that he’d get in trouble. When he tapped her it was not on the “bottom part”. When he went to say he didn’t come close to… he was cut off again by Detective Thomas who said once more that he knew that Mr. Nkemka had committed the alleged assault. Mr.

Nkemka did manage to get in a partial statement that it didn’t happen before he was cut off again and Detective Thomas told him he would rather hear nothing than for him to lie and say he didn’t do it. Certainly I cannot criticize Mr. Nkemka for not more aggressively responding to the Detective’s assertions and interrupting him. [ 60 ] Detective Thomas did make one good point when interviewing Mr. Nkemka and that was the fact that on the complainant’s theory he gave her her cell phone and must have known as a result she could phone police as she was walking away with it. [ 61 ] Mr.

Nkemka said the only way he was able to identify this woman was because she gave him a hard time getting out of the taxi. Eventually Mr. Nkemka told Detective Thomas that he didn’t want to argue with him about this and that’s why he “keeps saying I’m silent”. He said that anything that made him lose money “you don’t forget that”. At that moment you would be very angry. He also testified that he had been violated before and in that case he was going to call the cops. [ 62 ] At the very end of the interview Mr.

Nkemka said that the few times he had been violated, he had called the cops and been asked to drive the taxi to the camera downloading place. He stated anything in the camera stays for up to three days. In response to this Detective Thomas said they were not going to do that and that they would get the video through other means. When Detective Thomas asked Mr. Nkemka if he had the footage from his taxi that night was he saying that he would not see him at the side of the taxi, Mr. Nkemka said of course he was not going to see him.

Once again Detective Thomas responded simply by telling him that he was not telling the truth and that he would rather that he not say anything. He said the only reason he was there was to discuss why it happened not whether it happened. [ 63 ] Mr. Nkemka eventually responded that he was not a teenager that was going to accept what he didn’t do in order for him not to go to jail and not be punished. Clearly at this point Mr.

Nkemka believed that confessing to the assault would mean he would not be punished, no doubt because of Detective Thomas’ statements downplaying the seriousness of the alleged sexual assault and even suggesting that Mr. Nkemka was not at fault if it had occurred. When Detective Thomas urged Mr. Nkemka to resolve the matter to “bring closure to this young lady”, he responded that he believed Detective Thomas was “convicting me injustly (sic)”. There was a final push to have Mr.

Nkemka say that he was sorry or that it was a mistake and he didn’t mean it to happen and that he did not put his penis [the Detective clearly misspoke as that has never been the allegation] inside this woman. Mr. Nkemka responded “no sir there’s no way I’m gonna say it”. At that point the interview was finally terminated. The Evidence the Crown Relies on to Corroborate the Complainant (

c) Evidence of C.K. – The Friend [ 64 ] C.K. has known the complainant for four years and said they were pretty good friends through work. She attended I.’s party on M[…] Street. When she arrived Ms. C. was already there and when she left at about 1 a.m. Ms. C. was still at the party. I presume this was before the time change although that was not confirmed. [ 65 ] C.K. said that her observations of Ms. C. at the party were that she was getting gradually further intoxicated throughout the night. C.K. did not know how much Ms. C. had to drink.

She had had about 2-3 drinks and was pretty sober as she had to work the next day. When C.K. saw Ms. C. right before she left the party she said her words were slurry and she was “pretty intoxicated” at that point. She was walking but not in the straightest of lines. When C.K. left she said Ms. C. was outside the house walking towards the sidewalk with about three other people. She didn’t say if she was leaving or not. She was not making proper sentences or finishing her sentences. [ 66 ] According to C.K. there were no arrangements for Ms. C. to sleep over that night.

She received a call from her at around 2 a.m. based on the time she saw on her phone. She was not asked about the time change but said that she had been home for about an hour. C.K. testified that Ms. C. sounded confused, shocked and was slurring because of the intoxication and that she was trying to process what had just happened. She just kept saying “Oh my God” and that she needed to come over. She stayed on the phone with her as Ms. C. walked towards her house. This was for about five to ten minutes. [ 67 ] When Ms. C. arrived they went into the living room and Ms. C. told her what had happened.

From C.K.’s observations Ms. C. was still intoxicated and looked pale. It looked “a little like she was crying”. She was confused and still trying to piece things together. In cross-examination she admitted that it appeared as though Ms. C. did not fully know what had happened to her. She spent the night with C.K.. [ 68 ] In cross-examination C.K. admitted that Ms. C. had come over to her place to stay before, usually when she was out drinking. Sometimes they were out together. It would depend on where they were. It happened a few times that Ms. C. would come over after having been out drinking.

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d) Evidence of Deidre Bainbridge – The Sexual Assault Nurse [ 69 ] The Crown called Deidre Bainbridge who was the sexual assault nurse who examined Ms. C. Ms. Langdon stated at the outset that she was not tendering Ms. Bainbridge as an expert. I understood, however, that Ms. Bainbridge was going to be asked questions that would elicit opinion evidence concerning the possible causes of the injuries to Ms. C. and the age of those injuries because counsel had already made some inquiries of her in that regard for the purpose of the s. 276 application. Mr. Cunningham also wanted Ms.

Bainbridge to testify to these issues. In the circumstances, given the consent of both counsel and the fact that this was a judge alone trial, I permitted counsel to ask the questions they wished of Ms. Bainbridge. [ 70 ] Ms. Bainbridge was able to identify the sexual assault evidence kit forms that she had prepared with respect to her examination of Ms. C. on November 7, 2010. Ms. C. arrived at the hospital at 7:42 p.m. and Ms. Bainbridge’s examination finished at 11:30 p.m. She stated, however, that she had no independent recollection of this examination.

She completed the forms in her capacity as a nurse practitioner with the Women’s College Hospital Domestic Assault Team. She confirmed that the records recorded the forensic care that she provided to Ms. C. Given the circumstances of the making of those records, they were introduced as evidence of the past recollection recorded of Ms. Bainbridge and as an accurate record of her observations and findings at the time of her examination. Ms. Bainbridge was then asked questions to explain the notations that she had made and other areas explored by counsel. [ 71 ] Ms. Langdon reviewed Ms.

Bainbridge’s considerable experience as a registered nurse. Her training as a sexual assault nurse began in 1995. She became a nurse practitioner in 2001. She has been at the Sexual Assault Domestic Violence Care Centre of Women’s College Hospital for 22 years and her position has included Team Leader and Manager of the Centre. She is a professor at George Brown College for Forensic Nursing and some teaching at the University of Toronto for the Nurse Practitioner Program. [ 72 ] The complainant had no external injuries apart from the genital area. Based on Ms.

Bainbridge’s examination, she determined that the complainant had two tears in the posterior fourchette and introitus, which Ms. Bainbridge described as a tight band of tissue where the labia minora meet. She stated that her belief was the tear was the result of blunt force trauma that impacted that area and pushed the tissue past the point of resistance. The edges of the tear were irregular and were within the top layer of skin and as such did not require sutures. She did not note the size of the tear. She noted the tear because it was an abnormal finding. Ms.

Bainbridge also observed a tear at the lateral sulcus of the hymen and vestibule which she said was in the area surrounding the introitus where there is hymeneal tissue in an area between the hymen and the clitoris. She described this as a superficial tear that did not require medical intervention. [ 73 ] Ms. Bainbridge described where typically injuries occur as between consensual and non-consensual sex but in both cases the posterior fourchette is a likely location. She did say there might be more locations for non-consensual sex but was not asked about the injuries in this case. [ 74 ] Ms.

Bainbridge testified to what the literature says about the presence or absence of tears. She stated that the literature provides that one is just as likely to find a tear in women who have had consensual sexual intercourse as women who have had non- consensual intercourse. The frequency is the same although there were some studies that show the average number of tears to be more for non-consensual sexual intercourse. She said the literature provides that for consensual intercourse one is likely to see only tears whereas for non-consensual intercourse one would see more than tears.

The tear could be the result of a penis, fist, finger or object hitting the genital area. She stated that she could not tell what the blunt force trauma was in this case that caused the tears. If a woman fell onto an object and caused a straddling injury, that would tend to result in a laceration beyond the dermis requiring stitches. [ 75 ] Ms. Bainbridge testified it would be very uncommon to see three tears with consensual intercourse but that it was possible. Each tear was likely the result of separate force, i.e. a separate blunt force. Ms.

Bainbridge admitted that there could be multiple tears if there were multiple acts of consensual intercourse within a 48 hour period prior to her examination of the patient although she said these acts would have to be close together or there would be a difference in the appearance due to healing of the tears. If then within a few hours of that there was non-consensual intercourse, it could be difficult for her to tell. [ 76 ] Ms. Bainbridge also noted redness in the cervix which she said was non-specific and could be explained by a lot of things. It appeared that Ms.

C. had a yeast infection at the time although if the redness was caused by this she would expect it throughout the vaginal walls and would have noted that. Redness is a normal finding in young woman because their cells are thinner and the blood vessels are more obvious. [ 77 ] Ms. Bainbridge was asked about what the literature says about pinning down when an injury has occurred. She stated that resolution of genital injuries in women of reproductive age, because of their vascular and estrogen levels, is quite quick, within 48 hours. A tear would typically be resolved within 48 hours.

If an injury were very recent it would be moist and bloody in which case it would likely have occurred within 1-3 hours prior to the examination. If an injury was old it would exhibit yellow or white in the tissue at which point the injury would be close to healing. Based on what she observed the injuries in this case were beyond a couple of hours before the examination but less than 48 hours from it. Ms. Bainbridge admitted that she did not note the colour of the tears which is something she ought to have done and teaches other nurses to do.

She said if the tears were more healed the tissue would appear granulating and that it was very unlikely that she would not have noted that. (

e) Evidence of Aaron Neufeld – The GPS [ 78 ] Mr. Neufeld was qualified to give expert evidence in the area of wireless communication of information and control of messages to and from mobile devices or assets and in this case specifically the GPS system installed in the Beck taxis. He works for a company that is involved in installing these devices for taxi companies, commercial transport and rental vehicles and then tracking those assets for the customer. [ 79 ] A spreadsheet entitled “Event Detail” for Beck taxi #182 was prepared by Mr. Neufeld and it sets out the data that he extracted for this taxi for the period November 6, 2010 at 11:30 p.m. through November 7, 2010 at 2:30 a.m.

[ 80 ] Mr. Neufeld explained that the GPS sends certain information automatically every five minutes. The GPS chip in the device uses satellite time. The time on the Event Detail spreadsheet is when the message is received and Mr. Neufeld testified that the times set out in his report could be off by five seconds if there is a poor cell message which delays the system receiving the information. If the time recorded is off the satellite time by more than ten seconds the entry is highlighted. Mr.

Neufeld testified that there were no highlighted entries for the material time and so I conclude that the times in his report are accurate for my purposes. [ 81 ] The data shown on the Event Detail spreadsheet reflects the status of the vehicle the moment the data is sent in from the GPS device. For Beck taxis, the GPS devices were set up to send certain information automatically every five minutes when the vehicle ignition is on.

In addition the status of the vehicle is immediately registered as “Ignition On” when the ignition on the vehicle is turned on past the accessory position or “Ignition Off” when the ignition is turned off. If a vehicle is on but has not moved for two minutes an “Idle” alert is registered and this occurs every time the taxi is stopped for at least two minutes. When the status of the vehicle is shown as “Location” with a speed of “zero”, Mr.

Neufeld testified that the vehicle was either not in motion or idling for less than two minutes, or travelling less than a kilometre an hour such as stop and go traffic which results in the GPS seeing the vehicle as stopped. When the status is shown as “in motion” the vehicle was moving. [ 82 ] The information sent from the GPS includes the location of the taxi including the closest street address based on Google, the latitude, longitude and altitude of the taxi, and its speed and odometer reading. Mr. Neufeld did not know what the changes in latitude, longitude or altitude mean.

The odometer readings are as the crow flies not the actual distance travelled of the vehicle and Mr. Neufeld was not able to say how accurate this reading was with respect to this Beck taxi. The odometer reading in the data determined by the GPS, changes in increments of one kilometre; in other words, if the taxi moves less than one kilometre there will be no change showing in the odometer reading. According to Mr.

Neufeld, the speed shown on the Event Detail sheet is accurate to the actual speed of the taxi within ± 10% but this was his “best guess”. [ 83 ] A map was introduced recording the relevant GPS data locations from the Event Detail spreadsheet with the recorded times. Mr. Neufeld described “GPS drift” which might show a taxi to be in motion when that is not in fact the case, and the address has not in fact changed. This might mean a taxi is stopped for more than two minutes before an “Idle” alert is sent.

He described as well a phenomenon called “urban canyon” where large buildings obstruct a clear view of the sky which limits the number of satellites the GPS can lock into. This can also affect the accuracy of the results and as such the results and recorded addresses based on Google can only be considered accurate to within a hundred metres. Mr. Neufeld testified, however, that the fact that the various locations are actually on street addresses suggests that the data is accurate as opposed to subject to GPS drift. Mr.

Neufeld testified that to see the status of a vehicle as not moving, i.e. showing “Location” or “Idle”, but the address still changing is not uncommon and in fact is very common in big cities because of the urban canyon phenomenon. [ 84 ] Mr. Neufeld testified that there could be a delay in the information being transmitted from the taxi to their system in which case it would be highlighted on the Event Detail spreadsheet. The fact there is no highlighting in this case makes him more confident in the information as a whole being reliable. [ 85 ] A partial

summary of the Event Detail spreadsheet for the relevant timeframe for Beck taxi #182 on November 7, 2010, including comments based on evidence provided by Mr. Neufeld interpreting the data is as follows: Item # Time Status Speed Address Comment 33 01:02:40 In Motion 6.7 E 476 Yonge St. This entry was right after the change to Eastern Standard Time. The odometer was 112939. Presumably Ms.

C. was already in the taxi but for some reason, the time and location of her pickup at College and McCaul does not show on the Event Detail. 34 01:07:40 Location 0 512-516 Parliament St. ( This is north of Parliament and Gerrard) This was an automatic five minute signal and at this point the vehicle was stopped for some reason. The odometer was now 112940.

The vehicle must have been in motion and travelled east from 476 Yonge St. to this address which took five minutes. 35 01:12:40 Location 0 15 Central Hospital Lane ( This is a short street running North/South between Gerrard and College) This was another automatic five minute signal. Although the status shows the taxi as not moving, given the distance between this address and the previous address, the taxi must have travelled from 512/516 Parliament St. to 15 Central Hospital Lane in the intervening time.

36 01:15:45 Idle 0 173 Carlton St. (This is just east of Sherbourne) Given the distance the taxi must have travelled north on Central Hospital Lane to 173 Carlton St. The movement could not be attributed to GPS drift. At this point the taxi had been stopped for at least two minutes. 37 01:17:40 Location 0 173-179 Carlton St. In the time period from 1:15:45 to 1:17:40 the taxi is shown as either idling or not moving.

Given the distance it appears that the taxi was stationary with some GPS drift which accounts for the slight difference in the addresses. 38 01:22:40 Location 0 15 Central Hospital Lane This was an automatic five minute signal and at this point although the vehicle appears to have been stopped, given the distance between this and the prior address, it must have travelled from 173 - 179 Carlton St. to 15 Central Hospital Lane. The distance is too much to be accounted for by GPS drift.

This could have been by the vehicle driving south on Seaton St. or south on Central Hospital Lane. 39 01:26:34 Ignition Off 0 334 Seaton St . ( Just south of College) At this point the ignition on the vehicle was turned off. 40 01:39:36 Ignition On 0 334 Seaton St . As the vehicle had been turned off at 1:26:34, and does not turn on again for just over 13 minutes and given the address does not change, the vehicle must have been stopped around this address from 1:26:34 to this point, namely about 13 minutes. 41 01:44:16 Ignition Off 0 287-343 Seaton St.

This was just before an automatic five minute signal and at this point the vehicle could have been stationary in the prior five minutes, with the change in address attributed to GPS drift or the vehicle could have driven in a circle, come to a stop and the ignition turned off. 42 01:48:40 Ignition On 0 406-458 Ontario St. (Just north of Gerrard) This was just before an automatic five minute signal and the vehicle had been off since 1:44:16, i.e. over 4 minutes. The different address from the signal at 1:44:16 could be accounted for by GPS drift.

43 01:53:45 Location 0 425 Church St . The odometer was now 112941. Given the distance from the prior location the taxi must have travelled west to this location and was stopped at the time of the five minute signal for some reason. Clearly Ms. C. had been dropped off by this point. (

f) Evidence of Stephen Hall [ 86 ] Mr. Hall was the driver supervisor of Beck taxi at the material time. In that role he assists the police in their investigations and spends a lot of time tracking down locations of taxis based on information provided to him, using the GPS system. Mr. Hall was called as a witness primarily to respond to the Defence s. 7 application but he gave some evidence which I considered on the merits of the Crown’s case and so I will summarize his evidence here. [ 87 ] Mr. Hall recalled meeting with D.C.

Elzinga and another man for the purpose of trying to determine if a Beck taxi was involved in an incident. He believes that the officers contacted him the same day that he saw them. Mr. Hall had no recollection of speaking to anyone about this on November 9 th but said it was quite possible that he did. The officers were not able to provide him with the taxi number but they had a couple of locations that he used. Using times and intersections he is usually able to isolate an incident to a particular taxi.

In this case he was told the incident was between midnight and 2 a.m. and that the intersections were College and Spadina and Parliament and Gerrard. [ 88 ] Mr. Hall testified that he was unable to find a taxi at the pickup location but was able to find one at the destination location, which in his view was there for an abnormal amount of time. The information Mr. Hall gave to police was with respect to taxi #182. The information he obtained did not give information as to who was driving the vehicle. It probably took him a couple of hours to review the data and come to a decision. [ 89 ] Mr.

Hall recalled that the taxi appeared to sit in a laneway for 10-15 minutes which he found unusual. Mr. Hall testified that there are various locations known as “posts” specified by the company or the city or both, where taxis can sit until an order is received. There are posts all around Sherbourne and Carlton although he could not say where. They are usually on main streets or in a plaza. The address in this case where the taxi was stopped was identified as a laneway to his knowledge and did not have any posts. The taxi just seemed to be sitting there. [ 90 ] Mr.

Hall had no recollection as to whether or not police asked about surveillance cameras but that would not be unusual. There should be surveillance cameras in every taxi. He did not recall the length of the recordings. There are hard drives in the trunks of the taxis. He would be surprised if a recording would be available for more than two to three weeks before being copied over. After three weeks if asked, he would probably suggest it would be too late but that would just be a suggestion. [ 91 ] Mr.

Hall could recall times when the police were concerned about a particular taxi when he was asked to locate a vehicle and he would be able to do so, on a same day basis. Mr. Hall testified that they always cooperate with police. Analysis - Has the Crown Proven the Offence of Sexual Assault? Application of W.D. [ 92 ] The principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.) [1] apply, even though Mr.

Nkemka did not testify at trial, to the statement he gave to Detective Thomas, which was tendered by the Crown as part of its case, and contains both inculpatory and exculpatory statements. [2] As the Court of Appeal said in R. v. B.D. (at para. 114 ): Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the de2fence in the Crown's case , the trial judge must relate the concept of reasonable doubt to those credibility findings.

The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt… In that event, they must acquit. [Emphasis added] [ 93 ] For these reasons I conclude that if Mr. Nkemka’s statement to police leaves me with a reasonable doubt then he must be acquitted.

If his statement does not leave me with a reasonable doubt, I must still assess whether the Crown has proven Mr. Nkemka’s guilt beyond a reasonable doubt. However, in assessing the statement from Mr. Nkemka, I am entitled to consider it in the context of all of the other evidence. [ 94 ] The statement given to Detective Thomas by Mr. Nkemka was not given under oath and, of course, there was no opportunity for cross-examination although Detective Thomas repeatedly challenged Mr. Nkemka’s assertions that he did not commit the alleged assault.

Neither counsel provided any law with respect to how the exculpatory and inculpatory elements of this statement should be assessed. Paciocco and Stuesser in The Law of Evidence [3] clearly articulate the admissibility of the out of court exculpatory statements at p. 499:

If the Crown produces a statement made by the accused, however, it cannot edit the exculpatory part out and tender only the inculpatory material. The entire context of what was said must be admitted, and the entire statement will be available to the trier of fact as proof of the truth of its contents. [Emphasis added] [ 95 ] The Supreme Court of Canada affirmed this proposition in R. v. Rojas [4] and added commentary on how such statements should be weighed.

At issue in that case was whether it was appropriate for a trial judge to give the jury a “Duncan instruction”, [5] which states as follows: The incriminating parts of the statement are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight.

The exculpatory portion of the statement only need raise a reasonable doubt even if the jury does not believe it to be true, whereas an inculpatory statement can only assist the Crown's case if the jury is convinced of its proof beyond a reasonable doubt. [ 96 ] The Supreme Court of Canada held that trial judges should not give this instruction, but agreed that it was a correct statement of law. [6] I conclude in light of this authority that the exculpatory portions of Mr.

Nkemka’s out of court statement do not have the same weight as the inculpatory portions but that his exculpatory statements need only raise a reasonable doubt, in which case he is entitled to the benefit of any such doubt. [7] This is consistent with the principle in W.(D.) . Credibility Assessments (

a) G.C. [ 97 ] In many respects Ms. C. was a very fair witness. She readily admitted that because of her lack of memory for a period of time after she left the party that events could have occurred that she did not recall. In one significant area I do have a concern about the truthfulness of Ms. C.’s evidence. I found that her evidence changed in cross-examination as she tried to minimize the period of time of her memory loss.

She started to make distinctions about her cognitive level that I would expect she would have little ability to recall given the admitted amount of alcohol she consumed and she tried to redefine terms she had used before such as “blackout” to minimize the period of time of complete memory loss. [ 98 ] Most importantly however, is the problem with the reliability of Ms. C.’s evidence. First of all, I am concerned that her evidence has been influenced by her speaking to friends about the events at the party, in the parkette and even about getting into the taxi.

She testified that she spoke to people who were at the party trying to piece things together afterwards. She also thought back from times shown on her phone. That was a natural reaction given her memory blackout but does impact on the reliability of her evidence now particularly as I only heard from one person who saw her at the party. [ 99 ] I also have concerns that Ms. C.’s ability to accurately perceive and remember the events that she does recall was impacted by her level of intoxication. For example, although Ms.

C. testified that when she came to in the taxi, she “sobered” up quickly, that evidence is at odds with her failure to make any observations about the vehicle she was in save that it was a taxi, had black footwells and felt like a van. She told police she believed she had been in a van and presumably changed that evidence at trial because by then she knew the taxi was a sedan. Her explanation for the change in her evidence was not credible nor was her explanation for why she did not take the time to focus on the type of vehicle she had been in.

Given she backed away from the vehicle, given the light from the beer store and given her observations of what the driver was allegedly doing, I find it inconceivable that she would not at least be able to tell if the vehicle was a van, as she told police, or a regular car as she testified at trial. I would have expected that she would also be able to see the color of the taxi being green and orange. I find it likely that her inability to be accurate, assuming that she was wrong about the type of vehicle in which the assault occurred, was likely due to her intoxication.

In my view her level of intoxication impacted her ability to perceive and recall events that took place while she was in Mr. Nkemka’s taxi and thereafter. [ 100 ] In addition, whatever I determine the facts to be, Ms. C. was intoxicated enough that friends put her in the taxi and, on her evidence, she passed out in the back of the taxi at that point. Whether or not she was passed out or was still able to talk to Mr. Nkemka as he testified to, there is no doubt that she has a significant gap in her memory of the events that night.

Although she modified her evidence as to when she blacked out, clearly if she did not enter Mr. Nkemka’s taxi until 1:00 a.m. after the time change, that was somewhere between 1½ to 2½ hours after she blacked out and suffered a memory loss. Even on her evidence she has no memory for a period of time that is longer than the period of time she spent in the taxi. Two things flow from this.

First, this means that despite the memory loss, at the time she was able to be in the parkette and talk with friends, and walk without assistance and presumably continue to talk to friends until she got to College where she was put in Mr. Nkemka’s taxi. In other words, the fact she has no memory of a period of time before she entered the taxi does not mean that she was unconscious. Secondly, the memory loss means that any number of things could have happened to Ms. C. that she does not recall which could explain some of her injuries and even her sense of being in a van and being sexually assaulted. (

b) Donatus Nkemka [ 101 ] Although Ms. Langdon suggested that the fact Mr. Nkemka did not appear to know why he had been asked to come to the police station was contrived and self-serving, that was not my impression. He had not been given a reason by the police and, if he is innocent, it was reasonable for him to believe that it related to complaints that he had made about passengers. He seemed genuinely surprised when that was not the case and once he was finally given more details by Detective Thomas about the allegations, it seemed that he was sincerely trying to determine who was making the allegation.

If he is innocent, as he professed, there would be no reason for him to immediately come to the conclusion that he had been asked to come to the station because of an allegation by a passenger and, in particular, Ms. C. As for the fact Mr. Nkemka was then able to remember Ms. C. and a considerable amount of the detail of what he alleges occurred, I did not find that unusual either as on his account he had good reason to remember her. On his evidence he wasted 30 or more minutes driving her around. He did not think he had been paid any fare and if he had it was only $10.

Clearly from what he told the officers he had to work hard to make a living driving a taxi in order to support his family. [ 102 ] Mr. Nkemka’s account was essentially internally consistent although I am a little confused about the exact route he says he

followed as it was a little different when he was asked about it a second time. He may have simply misspoken when he referred to what I think is the second stop as the first. I am also unclear as to the number of stops. I do not find, however, that this impacts his credibility. Much of it has to do with the fact that Detective Thomas did not ask very many clarifying questions. In fact he seemed disinterested in any explanation that consisted of Mr. Nkemka denying the alleged sexual assault. Mr. Nkemka did make reference to specific streets and stops which, as Ms. Langdon points out, do not all match the GPS data.

However, he said that he was going around and around the streets between Gerrard and College and that is generally consistent with the GPS data. The fact that he remembered Ms. C. but not the precise route he took makes sense as on his evidence the details of the route would not be important. [ 103 ] I asked counsel whether or not I could consider the fact that Mr. Nkemka voluntarily and without hesitation agreed to give a DNA sample, particularly when Detective Thomas told him that if he had committed the offence the DNA would show this. Ms.

Langdon said that I should not rely on this evidence but neither counsel had any case law one way or the other. [ 104 ] With the help of my law clerk I had an opportunity to review some of the cases on this issue. The leading Ontario case seems to be R. v. Chisholm [8] , in which Hill J. thoroughly reviewed the case law and concluded, at para. 34, that an offer of bodily samples is not necessarily consistent with evidence of consciousness of innocence.

He further stated, at para. 35, that the admission of evidence of consciousness of innocence would be more compelling if it might assist in rebutting evidence that tended to show a consciousness of guilt. In reaching this conclusion, Hill J. relied on the reasoning of Braidwood J.A. in R. v. Richards [9] , in which he concluded at para. 26, “There may well be cases in which the conduct of the accused upon arrest is valuable evidence of innocence, and where it would be admissible on that basis, as an exception to the rule.

In my opinion, this is no such case.” Both Braidwood J.A. and Hill J. pointed out [10] that there have been cases where the accused voluntarily offered samples for comparative testing which turned out to provide very strong evidence against the accused. As Ducharme J. summarized in R. v. R. Q . [11] , whether an accused’s agreement to give samples is indicative of a consciousness of innocence will largely depend on the circumstances in which the offer of cooperation arises. Given these authorities, which I accept, I have not relied on Mr.

Nkemka’s willingness to give a DNA sample. [ 105 ] As for the explanation Mr. Nkemka gave of what he recalls happening when the complainant was in his taxi, his account is just as plausible as the complainant’s subject to my consideration of the evidence the Crown relies upon to corroborate her complaint which I will consider. As I must consider the statement of Mr. Nkemka in the context of all the evidence, I will do so, but at this stage I find that he appears on video to give what can be considered a credible and reliable account of what he recalled happened while Ms. C. was in his taxi. (

c) The Other Witnesses [ 106 ] Mr. Cunningham did not suggest that there was a credibility issue with any other of the Crown’s witnesses, including C.K.. I found her to be a credible and reliable witness although she did not have much recall about the night in question. There are reliability issues with respect to Ms. Bainbridge as she gave opinion evidence and yet was not called as an expert. There are also reliability issues with the GPS data set out in the Event Detail spreadsheet although there was no suggestion that Mr. Neufeld was not being honest and accurate in all of his testimony.

I find that these witnesses were truthful and the only issue is the reliability of their evidence. Findings of Fact [ 107 ] Ms. Langdon argued that Ms. C.’s demeanour after the alleged assault, as described by C.K., corroborates her evidence of the assault. No issue was taken with the fact that post-event demeanour of the complainant is admissible and the law is clear that it may be used to support a complainant’s evidence of a sexual assault. [12] [ 108 ] In this case, C.K.’s evidence was fairly vague as to how Ms. C. appeared.

She did not paint a picture of what I would consider a highly distraught emotional condition. Furthermore, the significant amount of alcohol Ms. C. had consumed and the fact that she had experienced a significant memory loss could also account for how she appeared and reacted. For these reasons I do not find this demeanour evidence of much assistance. [ 109 ] Ms. Langdon submitted that the evidence of Ms. Bainbridge also corroborated the evidence of the complainant. The first difficulty with this submission is that Ms.

Bainbridge was not qualified as an expert and the evidence the Crown seeks to rely upon is her opinion evidence as to what could cause the vaginal tearing she observed with respect to Ms. C. I do not see how I could rely on that opinion evidence without it being formally admitted as a fact by Mr. Cunningham or the Crown qualifying Ms. Bainbridge as an expert. [ 110 ] In any event, even if I consider the opinion evidence of Ms. Bainbridge, a

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