ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN —AND-MUSTAFA URURYAR Before Justice M.A. Zuker Heard on February 1,2, 3, April 11, May 3 and 24,2016 Reasons for Judgment released on July 21, 2016 Ms. J. Lofft Ms. E. Bristow counsel for the Crown counsel for the defendant, Mustafa Ururyar M.A. ZUKER, J.: PART I THE FACTS - Examination In-Chief by Ms. Loffi [1] Mandi Gray has been a student at York University, a grad uate student. She began her master’s degree in the Fall of 2013 and then in the Fall 2014 started her PhD. She was teaching in the Department of Social Scie nce, a Criminology class, but is a graduate student in sociology. She first knew the accu sed or first met him in mid-January, on or about January 16, 2015. Mr. Urur yar was also a graduate student from a different department, but also a first year PhD student. His area was the Department of Political Science, also at York Universit y. [2] In addition to being a graduate student, Ms. Gray was a teaching assistant and in the student union. She met the accused at the first union meeting that she attended. They met at the CUPE office at the Universit of y Toronto, in downtown Toronto. After the union meeting everybody said that they were going to be going out. She decided to join along because the friend that brou ght her to the meeting invited her to come out with everybody. L —2— Mr. Ururyar came in towards the end of the meeting that evening and then [3] came over to the bar with them. Ms. Gray saw him a number of times before the events on the night that resulted in these proceedings. Some friends, also from York University, were going out to Victory Café and [4] so she decided to meet up with them there. It is a small bar/café near Bathurst and Bloor in Toronto. There was some people from CUPE. They had won the strike vote that day that would allow them to go on to strike. It was kind of a mixture between a union get-together but also people just from class socializing. She went to the Victory Café and had a couple drinks with her colleagues. And then she texted and asked Mr. Ururyar if he wanted to come out. She did not provide those texts, but she knew she asked him to come out. He was sick but eventually, he did show up at the Victory Café, along with everybody else that was there, probably 1015 people. The meeting time was probably around 8:00 or 8:30 p.m. Alot of mutual friends were present at Victory that evening. She didn’t expect him to show up because he had told her that he was sick [5] and was going to stay home. She remembers saying: “Hey, like, I’m here, if you want to come.” And then he said he was sick, and then he changed his mind and showed up. He showed up around 9:00 p.m. They were having beers. Before he arrived, she probably had one or two. She was surprised as he kept saying he was sick and he wasn’t going to come and then he changed his mind at the last minute. She was socializing with the people she knew and he was kind of socializing at another table with the people that he knew from Political Science and the union. They were talking. They were at different tables. She remembers him asking her not to touch him in public, which was off-putting and surprising to her. It’s not that she was hurt but before it wasn’t an issue if his girlfriend knew about them. Before that night, he was like touchy in public but, then, that night he said he didn’t want her to touch him in public because he didn’t want his girlfriend to find out, again, never an issue prior to that date. Ms. Gray and her friend Lacey wanted to go out. Mr. Ururyar indicated [6] some of the union people were going to head over to Paupers, just at Bloor and Bathurst area, very close by the Victory Café. She settled up her tab, maybe one more beer before she paid and then they walked over to Paupers. She had maybe three, four beers. She had arrived at the Victory Café at around 7 and then left around 10 or so. At Paupers, Ms. Gray became friendly with several people. It was mostly Lacey. She knew Mr. Ururyar. She knew Lacey the best because she met her in her first year at York in her Masters. At Paupers, Mandi was tipsy but this was not a complete loss of control, just having fun and being silly drunk with her friends. But not out of control or falling over. At Paupers she continued to drink beer. Most of the night she was sitting at [7] a booth, socializing with people she had recently met through the union. Lacey was there and Mr. Ururyar was there. He did not have much interaction or much conversation with either of them at the bar. It was mostly talking with people that —3— were also there because of the CUPE strike vote. They stayed until the lights came on, until closing, about 2:00 or 2:30 in the morning. “Like, I asked ‘cause I was drinking a lot, I asked Mr. Ururyar if I could spend the night over at his place and like I said and then he said that he was sick, so I could sleep over but he wouldn’t have sex with me which I thought was totally weird thing to say, but I kind of just wanted somewhere safe to sleep. — — So, I said “Okay”, and then I remember I just went, like it didn’t really like phase me, I just thought it was kind of an odd thing for him to say. But I just went and sat back down and didn’t really talk to him much for the rest of the night. And then when the lights came on, because I had made plans to crash over at his place....” They left and were going to get something to eat but nothing was open. [8] They continued walking up to Bathurst and Bloor, outside of Honest Eds. Mr. Ururyar kept asking Lacey to come home with them. He kept pushing her to keep drinking. He was adamant that she come back and drink. This was strange because he wasn’t drinking all night, he was sick, he wasn’t feeling well. Ms. Gray did not remember seeing him have a beer the entire night. She [9] wasn’t interacting much with him that night.. Maybe she didn’t see him drink. She thought it strange because all of a sudden he was so adamant that Lacey come home with them. His apartment was small. It would be weird for Lacey to come back with them, especially because it was 2:30 in the morning and she was just ready to go to sleep. “And she kept like saying no. She’s like: “No, I don’t want to”, but he kept pushing and like asking her and, and then I could tell she was uncomfortable and I felt uncomfortable but I didn’t think too much of it at the time. And then, then a cab came and she hopped in and as soon as the door closed, that’s when everything really took a turn for the worst. Q. Okay, so she when you say she hopped in the cab, that’s Lacey you’re talking about? — A. Yes, Lacey hopped in the cab.” [10] Lacey got in the cab and then at that moment the tone of voice of Mr. Ururyar changed and, at first Mandi was caught off guard by it. He was angry. He articulated his anger to her. —4— “First, the anger began because he said that I was unable to meet his sexual needs and that he wanted Lacey to come home with him and I, because he wanted to have sex with both of us. And Q. What was your reaction to that? A. I was really caught off guard and confused because that was not a conversation that the three of us had had. I noticed that he was really adamant asking her to come back to his place but it wasn’t explicitly stated that it was he wanted to have sex with both of us and it was really confusing to me. And then the anger began to escalate and he said things that I was an embarrassment, I was embarrassing myself, I was a drunk, I was needy. He just really like began to tear away any sense of like self-esteem that I had at the beginning of that night. Q. Okay. And did this take place while you were still standing on the street or were you headed somewhere? it began as soon as Lacey got in the car A. Yeah, we were about like you, you’re not trying hard enough to please me we began walking towards his apartment sexually and then I because, like I said yesterday, I had asked if I could crash at his place.” — — [11] The anger just kept escalating. “A. His tone of voice just started to get harsher and more blunt and direct and saying things about me to make me feel like I had done something wrong and I started to believe it, and it was like I knew this person and then after that moment of Lacey leaving, he turned into somebody that I had never seen before, I had never encountered and it was like everything about him completely changed. I didn’t even recognize who he was and like, I felt so small.” She thought she must have done something terrible. She was conflicted [12] and confused. There wasn’t a lot of dialogue. It was mostly him talking to her. She was confused and mostly quiet. She does not believe she challenged any of it. He kept going. It just kept getting harsher both in terms of his tone of voice but also the things he was saying about her. They didn’t have a conversation about it, yet it was like an expectation that wasn’t being communicated, with her or Lacey. No conversation. She didn’t talk to him the entire night, so she wasn’t sure where this person who was needy was coming from and it was all very confusing to her. —5— “I’m a person that once I go inwards, right and I don’t express when I’m feeling hurt or sad or angry. I’m more of an introvert in that way, so I just internalized it all and I just took it. I don’t remember responding.” — “It was just like, oh, you’re just like all the other women, in reference to another particular women (sic) that he had a sexual relationship with. You’re just a slut, you’re just like, all these derogatory terms.” — In her head, Ms. Gray didn’t want anything to do with Mr. Ururyar after this [13] night. She didn’t want to be friends with somebody that’s going to call her the names and treat her like that in a physical relationship. “We got to his place and after being talked down to, I don’t know how long the walk is but, it’s a pretty good walk. I remember just like, I was just like, I just was no longer was present. I just like, because I was just hearing all these terrible things about how horrible I am and how much of a drunk and a slut I am, I just wanted to go to sleep. I just wanted to wake up and like, move on with my life without this person in my life. And we got to his place and I was just ready to go, to crash ‘cause like obviously the night didn’t have a good end to it and I was just exhausted and tired and ready to go to sleep.” At Paupers she spent about $40. She didn’t eat anything so she assumed [14] she spent about $40 on beer. She didn’t remember if she purchased a beer for anybody else. “Obviously, I was intoxicated enough to seek out somewhere else to sleep because I felt vulnerable in Vthat I didn’t feel comfortable catching a cab by myself because I knew, I knew that I was vulnerable. I was intoxicated.” “I remember just feeling like, well, like a little dizzy, a little tipsy and like, as we were walking and like, I think the alcohol also helped in terms of just like completely numbing me, like emotionally when I was being talked down to.” At Mr. Ururyar’s residence, you go up a set of stairs, a house converted into [15] an apartment building. You walk up the stairs and then there’s a kitchen, a washroom and the bedrooms. She assumed it was three bedrooms. She did not recall seeing or talking to anybody else when she was there, the early morning hours of January 31, 2015. —6— “A. From what I remember, I ended up in his room. I was sitting on his bed and again, that verbal aggression began to escalate. I remember feeling really scared because this is somebody that I had never seen. I had never seen that kind of anger. I hadn’t it was like, I thought I must, I must have done something like really badly to deserve this and I began getting scared. I don’t know like, if it like, I just felt like a very real threat of potential physical violence in that moment and I remember being scared and I remember just completely like, just sitting there and taking it because I was like, I just hated myself so much in that moment. Like, he had destroyed any self-esteem I had, I was like, I don’t care, I just want to die right now because this hurts so bad.” — — “I thought that was a friend or like a decent human would say all these horrible things about me and they must be true and I, Ijust, I hated myself, so I just he just continued and he continued the verbal aggression and that, yeah.” - “I remember the last thing he said to me was this is the last time I’m ever going to fuck you and you’re going to like it and that has stuck with me every day for the last year. And that’s the last verbal conversation that I remember between the two of us.” [16] They went right to his room. His aggression continued. “I don’t think I could even describe it if I wanted to of (sic) terms of like how his entire physical body just changed and his tone of he voice. It was like a person I didn’t even recognize, like I he wasn’t that wasn’t the person that I knew. He wasn’t met before had never someone I person. It was like, it was like and it was just totally confusing to me because I just didn’t know what to make of any of it. — — But no, it was just yeah, it was just a continuation of what was happening on our walk, in terms of you’re a drunk slut, I don’t like you, I don’t want anything to do with you, you’re needy. Yeah, my girlfriend’s going to find out, you are yeah, just continuing the same few lines about me. — — Q. Okay. And then what happened? A. Okay, so then he said what I had said earlier. And the next thing I remember is, okay, I was sitting on the corner edge of his bed and he was standing up looking down on me when he was talking down to me, like literally talking down to me. And I don’t remember him taking off his clothes or how that happened, I was —7— not an active participant in that. He grabbed me by the back of the head and pushed his penis into my mouth. Q. Okay. And what — and then what? A. It just continued and you know at that moment, I’m like first of all, I hate myself. I just, I’m intoxicated, I have no ability to fight back and I, like I said, that threat of physical violence was very present and I was like, I would rather take this than the risk of physical violence because I don’t know what this person is capable of. And I know if I comply with this, I know how this is going to go or I thought I knew how it would go. It was just like, I just like, I just stopped caring and I just let it go the way whatever, I was just, I just didn’t care anymore — 9 Q Didyouconsenttothat A.No. Q. So, you said he grabbed you by the back of the head? A. Yeah, and he pushed my like he pushed and like the back and like, then he just like pushed his, himself into my mouth and I was like whatever, I’ll just, I’ll just comply because I don’t know what the repercussions of me saying no will be. — Q. Okay. And then did he ejaculate? A. Atthattime,no. Q. Okay, so what happened next? A. I don’t know when that ended or how long that lasted for. I kind of checked out of my physical being. I just, I just went with the motions just to get it over with quick as possible. And then I, I don’t know, I think he pushed me onto the bed. I’m pretty sure that must have happened because I and then he started having sex with me and I just laid there.” — “Right before he grabbed my head. That’s what he said to me and I remember like him saying that and I was like: “Like, we’re having sex now. Like, what this isn’t how you have sex with somebody”, but I was so scared, I was like, yeah, I didn’t know what else to do, so I just went along with it.” — —8— “I guess it stopped whenever he was ready to finish. I don’t know how long it lasted. Like I said, I kind of just completely checked out of my physical being, just ‘cause Ijust, I couldn’t be present in that.” “I just like was in the fetal position, like crying so much. And like, I don’t cry often, like I don’t cry very often so when I cry like, you know you did something really bad.” “And he just like totally blew it off and just like went to sleep, no big deal. Like, it was yeah. And I — Q. Do you remember whether he said anything to you? A. I think he told me to like be quiet, or something along those lines. And I just passed out, I was just so exhausted and tired and like, I just like like I said, I just like wanted to die in that moment. I just didn’t want to live like that. I didn’t want to feel that way and I just didn’t care about myself anymore and I just passed out. — Q. What is the next thing you remember? A. Oh, I woke up because I could feel him masturbating next to me and I was so mad. I was so mad because he knew I went to bed crying last night, the night before, sorry. He knew [went to bed crying the night before and I was just so confused, like what about this situation is like good for you. And he noticed that I was awake and he went and again, put his hand on the back of my head and tried to like push my head back onto his penis. But I was feeling a little bit, I was much more sober at that point, I had slept for a few, for a bit and I just said: “No, like I’m not doing this.” She got, up, she put on her pants and she left his apartment. lt’was about [17] 9:00 in the morning. She was waiting for the streetcar to go home, at College and Bathurst and she texted her friend and told her what happened. That was at about 9:45. According to Ms. Gray, when he grabbed her head in the morning, they were still in the same bed. There was no verbal communication. “I just said: “No, I’m not doing this”, and I got up and like, I left and I didn’t say bye, I didn’t say anything.” V Ms. Gray went home. She slept for a few hours. She woke up feeling [18] conflicted and confused. She felt like he must have misread something. She didn’t know what she was thinking or like what she wanted from him, but she texted him and said: “Last night was really fucked up.” “And he responded to me: oh, okay.” And that was the last they both communicated to each other. —9---[19] She again stated that she didn’t spend a lot of time with him that evening. He was sober from her best guess. [20] state. She gave evidence that she just turned inwards and went into a depressed [21] On February 1st, 2015 she was encouraged to report. She decided that maybe she wouldn’t report but, at least she should go to the hospital and do the forensic test just in case she changed her mind. She went to the Women’s College hospital. It was closed. She then went to Mount Sinai and met with the forensic nurse, or sexual assault nurse. She agreed to move forward with the kit. She would make up her mind later about what she wanted to do with it, but just to have the collection of that evidence. She was accompanied by her friend Lydia. She then went home and decided late Sunday evening that she wanted to get the kit done. By the time she finished up, it was about midnight. Monday morning came and she was supposed to go into work to T.A. February 2. She stated that she didn’t know what would happen if she reported to the police? Both of them were graduate students. How that would impact her career? She called her graduate program director and asked her for advice. She also called the union. She was worried as Mr. Ururyar was an executive of the CUPE local at the time. “I just said: “One of the executive members of CUPE raped me on Friday night and I don’t, I need to know how you’re going to deal with this if I report to the police ‘cause I’m really scared of this person.” [22] She called non-emergency and the police dispatched two officers to her apartment that evening. She waited a few hours and they showed up. She gave her statement that same night. The officers came, they took their initial statement and then they took her to 14 Division. She met with Detective Chuck Barry and his colleague and she did a KGB statement. The text she had from Mr. Ururyar was the last communication she had with him. Examination In-Chief by Ms. Bristol [23] “Q. Mr. Ururyar, did you have sex with Mandi Gray the morning of January 31st, 2015? A. ‘Yes, I did. Q. Do you believe the sex was consensual? A. Yes, there’s no doubt in my mind.” — 10 — The accused is a PhD student in Political Science at York University and a [24] th 16 teaching assistant there. He and Ms. Gray met at a union meeting on January of 2015. He had a girlfriend on January 30, 2015. Her name isAlison. She was living in Montreal. They had been together.just short of three years at the time. It was an open relationship. They had agreed that during the time that they were living in different cities, it would be okay if they saw or slept with other people. It was supposed to become monogamous again in April of 2015, when Alison was going to move back to Toronto. It ended up becoming monogamous immediately after he was charged. He told Alison that Ms. Gray had made an allegation of sexual assault [25] against him. He was innocent. He saw Ma. Gray on January 30, 2015 at Victory Café around 9:00. A few of his friends and colleagues had gone there after their strike vote on campus. They were going to have some drinks. He decided to go home because he wasn’t feeling a hundred percent. He then got some texts from Ms. Gray saying that she wanted him to come to the bar and then they would have sex afterwards. “Q. Okay. And was it your intention to have sex with Mandi that night? A. Yes. I was going to — I thought that we could do it, yeah.” He had a beer at home before going to Victory Café. At Victory Café he [26] had a beer there. There were a number of people, mostly from the Political Science and Sociology Department, about 15 to 20. He sat next to her when he arrived at the bar. They talked. They flirted. At one point in the evening, she began to grope his leg. She was rubbing her hand up and down his leg inside. It made him feel uncomfortable. He didn’t want to show that sort of affection in public. He was there with his friends and colleagues and he didn’t think it was appropriate. He quietly asked her to stop. He stated she had a beer when he arrived and he thought she ordered one more before they left. They went to another bar called Paupers, after about an hour, hour and a [27] half. Mr. Ururyar, Ms. Gray, and her friend Lacey and a few other people, maybe 5 or 6, mostly from the Political Science Department walked about 15 to 20 minutes to Paupers. They took their seats. They ordered drinks. Ms. Gray and Mr. Ururyar sat next to each other in a booth with maybe 4 or 5 other people. They were talking, having a good time. She again began to grope Mr. Ururyar leg’s underneath the table. This time it was a bit closer to his genitals, it was the inner thigh, upper thigh. Again, it made him uncomfortable. He asked her to stop again. They stayed there until closing about 2:45, 2:50 a.m. He had 2 to 3 beers. She ordered the I beer when they arrived later in the evening. He saw her with another beer in her hand, at least 2. They weren’t sitting close to each other or standing close to each other for most of the time at Paupers. He left with Ms. Gray, her friend Lacey, his friend Indigo and a mutual friend Gazem. They started walking west from the bar towards — 11 — Bathurst. At one point, Indigo and Gazem left. He invited Lacey to come over to his place. “A. Ah, I just said: “Do you want to come over and have a drink with us, with Mandi and I?” Q. And what was Lacey’s response? A. She was thinking about it, she was on the fence. Ah, butthen she eventually decided that she didn’t want to and she hailed a taxi .“ At Victory Café, we arranged she would come over to his place. She said [28] that she wanted to come over and he said sure. “Q. Did you have any conversation with, ah, Lacey or Ms. Gray about having a threesome that night? A. Ah, no. No.” At one point in the evening, he said his friend Gazem came up to him and [29] said that Ms. Gray was planning a threesome with him and another person, and the thought of a threesome crossed his mind after that. He stated he met up with Gazem a couple days later and she asked him if he was still seeing Ms. Gray and she also asked how the threesomewas? He said that he wasn’t seeing.Ms. Gray anymore and the threesome did not happen. After Lacey left, they started walking towards Mr. Ururyar’s place. The walk [30] to his place is about 15 to 20 minutes, just south of College, along Bathurst. Q. “Walk. Was there any conversation between yourself and Ms. Gray during that walk? A. Yeah, I expressed disappointment that Lacey didn’t want to join us and then Mandi said that Mandi asked: “Am I not enough for you?” -- And I said: “Yes, you are.” And we kind of held I put my arm around her waist and she put her arm around me and we walked down the street.” — He gave evidence that they talked about the weather and the upcoming [31] strike. He stated Ms. Gray said that she was looking forward to coming over and having sex. He said that he would try but couldn’t promise he would be able to, physically. He wasn’t reeling a hundred percent. He was still recovering from a cold that he had all week. As they were walking home, they were not arguing. Their voices were not raised. He was not angry. Ms. Gray seemed to be buzzed to him, — 12 — under the influence of alcohol, but not to the extent that she didn’t have control of herself. “She was you know, I guess rosy cheeks, urn, happy, urn yeah, seemed to be having a good time”. She was not slurring her words. She wasn’t intoxicated beyond previous occasions that they were together. He wasn’t. ,. His apartment was on the second floor. When you walk in, there’s a kitchen [32] and there’s a couch there as well. And that’s the common space, no real living room. There’s a washroom on the right hand side and on the left, there’s a hallway that leads to three bedrooms. His bedroom is situated as the first one on the left. He had two roommates. [33] “Q. Now, describe what happened, ah, when you arrive at your apartment with Ms. Gray? A. We walk in, I lock the door behind us. Mandi goes into my room, I follow her. We get undressed, ah, and we get into bed.” “Q. What size bed did you have? A. A queen size. Q. And can you describe the position of your bed in your room? A. It’s on the right hand side when you, sorry, it’s on the right hand side when you walk in. Urn, the right side of the bed is along the wall, as well as the headboard. -- Q. Okay. And you said that you got undressed. Did you help each other get undressed? A. No, we undressed ourselves. Q. And did you tell Ms. Gray to get undressed? A. No. Q. Did Ms. Gray tell you to get undressed? A. No, she didn’t. Q. And do you recall what Ms. Gray was wearing after she got undressed, if anything? A. lthinkshewas still wearing hertanktop, urn, but I’m not sure if she was wearing anything else besides that. Q. What about yourself? Were you wearing anything at all? — 13 — A. I was wearing a long sleeved shirt and long underpants. Q. Okay. And, ah, so that you got under the covers. Who got under the covers first? A. Mandi got under the covers first. Q. And, so, where was she positioned in the bed? A. She was on the right side, along the wall. Q. And where did you end up going? A. I was on the left, the side closest to the middle of the room. Q. Okay. Was there any lights on in the room at the time? A. Ah, there was at first the main light and then I switched it off and turned on the lamp next to my bed. And I eventually switched that one off too. Q. Do you recall when you switched that one off? A. I think it was after we’d undressed already. Q. Okay. And so, describe what happened, ah, while you were in your bedroom? A. Ah, after we were in bed, Mandi moved towards me to kiss me and I moved away. Q. And why did you move away? I moved away because I wasn’t very A. Ah, I said that, ah, happy about how she had behaved at the bars, ah, in regard to the groping and I told her that. And I said that I wanted to end the relationship because it seemed like we weren’t compatible. It seemed like we didn’t have the same -- .....“ He said his girlfriend was going to be moving back in April. So I told her [34] that we should just be friends. She began to cry and she apologized. “I tried to console her and I apologized for making a big deal of the groping and I, yeah, I you know, just held her and tried to, I touched her arm and her back. Q. And anything else happen? A. Ah, she turned a little bit and then we started to kiss. — 14 — Q. Did you lean in to kiss Ms. Gray? A. Ah, we leaned in towards each other. Q. And what happenednext? A. Ah, we were kissing and then we started to touch and then I rolled over on to my back and she got on top of me and she pulled my pants down and I took my shirt off and she began to perform oral sex. Q. Did you touch Ms. Gray at any point while she was doing this? A. I was touching her arms, her breasts, her shoulders and her head. Q. Were you touching her in any forceful manner? A. No. Q. Was there any conversation or anything said during this time? A. After maybe a minute or two, ah, I think I said: “Do you want me inside of you?” And she said: “Yes.” And then Ithink I said, I asked her to turn and she did and she got onto all fours and we had sex in that position. Q. When you say in that position, what to? -— what are you referring A. It’s, I guess it would be referring to the doggie-style position. Q. Okay. And,ah, were you ever on top of Ms. Gray? A. No, I wasn’t. Q. Did, urn, did you ejaculate that night? A. Yes, I did. Q. Were you using a condom? A. No. — 15 — Q.. We had not been using a condom for the last few times that we’d been together. Mandi said that she was keeping track of her cycle Q And what, if anything, happened, urn, after you had sex 9 A. After we had sex, we got back under the covers and (think we were sort of cuddling and spooning. Q. Did you notice if Ms. Gray was crying at any point? A. No, I did not. Q. Did, ah, you ever say to her that it had tobe the last time? A. I think I said that before we started having sex, ah, I said that this should be the last time that we sleep together or sleep in the same bed. Q. And why did you say that? A. Ah, because I didn’t want her to I just wanted to be honest and say you know, that ah, I didn’t want this to continue, our relationship to continue. —- Q. Did you believe that the sex was consensual while you were engaging in intercourse? A. Yes, I do. Q. And why did you think that? A. All of the sex acts that took place were mutual. We were both participating in them, the kissing, ah, the oral sex and the intercourse. Q. Was there any indication to you that Ms. Gray was not enjoying herself? A. No, there wasn’t. Q. Was there any indication to you that she did not want, ah, she wanted you to stop? A. No. Q. Did Ms. Gray cry at all during intercourse? A. No, definitely not. — 16 Q. Did you ever get an impression that Ms. Gray was unhappy or not enjoying herself? A. No, I didn’t get that impression. Q. Did you ever feel that Ms. Gray was non- responsive to your actions? A. No. Q. Did you ever get the impression or see Ms. Gray’s eyes closing or appear that she was passing out?” Mr. Ururyar stated that he woke up around 10 a.m. Ms. Gray was standing [35] at the foot of the bed already dressed. She had her parka on and her boots and dark pants. She was looking angry. She felt used. He said he never tried to push Ms. Gray’s head onto his penis in the morning. Later that day he got a text from Ms. Gray a couple hours later and the text read: “Last night was really fucked up.” Q. Anddidyourespondtothat? A. I responded saying: “Okay.” Q And when you got the text message from Ms Gray, what was going through your mind at the time’? A. Urn, my mind, I thought that she was referring to me making a big deal of the groping and, ah, breaking up with her before we had sex Q Was there anything else that was going through your mind? A No” A. Ah, after I didn’t hear back from her for a few days, I texted her saying that I was sorry, urn, for how the night progressed. Q. And what did you mean by that? A. I was referring to, you know, me getting annoyed and upset about her groping me and saying that the relationship was over, but then proceeding to have sex anyways. Q. Was there any other reason why you were apologizing? A. No. — 17 — Q. And had you spoken to Ms. Gray since then? A. Ah, no, I have not.” Mr. Ururyar gave evidence that he saw his roommate Phil that afternoon. [36] Phil’s room is behind his bed, behind the headboard. After a couple weeks, after he wascharged, Mr. Ururyartalkedto Phil aboutthecharge. Afterhewascharged, he was suspended as a teaching assistant and suspended from coming to campus on most days. He first learned that the police were looking for him on the morning of th 5 February j He noticed that he had a number of missed calls from the same phone number. He called the number back and Detective Stephen Barry answered the phone and he said that Ms. Gray had made allegations of sexual assault against him. He was stunned and speechless. He didn’t know what to say. The last time that he observed Ms. Gray drinking alcohol was around last call, around 2 a.m. He had sex around 3:30 a.m. He didn’t have very much to drink that night. [37] “Q. Okay. Was there any doubt in your mind whether or not the sex was consensual? A. No, there’s no doubt in my mind. Q. And can you describe all the reasons why you believe that? A. Well, beginning at the text message in the evening when she said that she wanted me to come to the bar and then we would go and have sex. And then at Victory Café, we arranged for her to come over to my place, ah, and on the walk home, she also said. she also expressed wanting to have sex when we got back to my place. Um, and then when we started kissing, she then got on top of me to perform oral sex and then she got into a position for us tohave intercourse. —- Q. Okay. Did you force Ms. Gray to perform any of those sexual acts? A. No,notatall.” Cross-Examination by Ms. Bristol [38] “You were a social worker prior to grad school? A. I worked at Elizabeth Fry. Society of Manitoba as a reintegration worker. — 18 — Q: Okay. And, in particular, you’ve worked with women who were survivors of sexual violence, correct? A. Yes. Q. Okay. And you’ve also worked with and perhaps this is the same workplace, but you’ve worked with female prisoners who have experienced sexual assaults, correct? A. This is correct, yes.” On January 16,2015 ata union meeting, she first encountered Mr. Ururyar. [39] They walked over to the next bar, to Victory Café. There were about 6 to 7 people who were there that night. At Victory Café, they all split a pitcher from what she recalls. Afterwards [40] they went to another bar. A lot of the people were new to her, a lot of them went over to Hurricanes on Bloor, that includes Mr. Ururyar. They walked there. They were just talking about their program of study, making small talk with someone she just met. The evening progressed. She thought the person was interesting and seemed really genuine and nice and they continued drinking. [41] “Q. What was the impression that you got after speaking with these women?” [42] “Q. When you say didn’t seem to add up, what do you mean by that? A. I don’t know if I can repeat this without and saying something that someone else said to me.” “A. Well, I’ll just say it and you can stop me if it doesn’t work. So, this [43] woman confronted me in the bathroom and they, they (sic) said; “Just be careful, he’s a misogynist asshole and I had a sexual relationship with him and it ended really badly. So, just be careful.” The first night she met him, she found out he had a girlfriend and she did [44] thi, 6 j to her knowledge, the confront him about that later that evening. On January relationship with Mr. Ururyar’s girlfriend to her knowledge, was an open relationship. [45] “Q. Okay. Now, I’m going to suggest to you that Mr. Ururyar never made any mention of his girlfriend finding out about your relationship or being upset that his girlfriend was going to find out? A. On what day? Q. Onanyday? A. I would disagree with that statement. — 19 — Q. Okay. And when did he tell you that his girlfriend was or he was upset about his girlfriend finding out about your relationship? — A. The first day I started questioning how open the relationship was, was the time when I was over at his place and he was talking to her on the phone and he made it very clear that I couldn’t talk, I couldn’t be there. And then again, on the night in question it was his girlfriend was moving there and oh yeah, and his girlfriend was coming, moving to Toronto and yeah, that was a few days prior to the night, sorry, that he asked me if I would continue to sleep with him, but make it a secret so that his girlfriend wouldn’t know.” — [46] “A. No, no, the first night on January 16th, when I directly confronted him and asked “Do you have a girlfriend?”, would be the first time. And then he communicated that he did have a girlfriend but, it was an open relationship. Q. Okay. And then the second time was when you were at his apartment? A. Yeah, we were just hanging out and she called and he don’t remember the specifics of it but, I know he like blatantly told me to quiet down ‘cause he was on the phone with her, which I thought was yeah, it was just odd.” —- — [47] “Q. Okay. And, so, the third time that happened, I believe you said he had asked you to keep things secret?” [48] “A. Okay. I don’t remember the specifics, what date it was but, I remember he was over at my apartment and he asked me if I would continue the relationship when his girlfriend moved to Toronto, but I would have to like keep it a secret and I wasn’t into that. But it never—I don’t remember reaching aconclusion in regards to that conversation at all.” [49] “Q. I believe you said he brought it up on January 30th, 31st, 2015, right? A. Yes. Q. Okay. So, would that be the fourth time? A. lguessso.” tf,, [50] On January 30 2015 Mr. Ururyar got really angry with her. He was worried that Alison would find out about them and that people at the bar were questioning him on their relationship status and that it would get back to his girlfriend. Ms. Gray didn’t know why the union would care, everyone slept with everyone in that union. — 20 — P.rior to going to Victory Café, she was home all day by herself. Around [51] 8:00 or 8:30 she went to Victory Café. There were people from Political Science present but she wasn’t at the table with them. She was at a table with people she knew but there were also people there that she didn’t know. They were associated with York. Mr. Ururyar came later. MS. BRISTOW: “Q. And, so, I’ve shown you a copy of some text [52] messages. Do they reflect text messages that you sent and received between yourself and Mr. Ururyar that day, on January 31st?” MS. GRAY: “A. Yes, these are the text messages.” Q. Okay.” “Q. And, so, at 7:55, there’s a text message that’s going from your phone to Mr. Ururyar’s phone, correct? MS. GRAY: A. This is correct. Or Q. Okay. And that text message says: “I’m at Victory Café Victory. Come drink and then we can have hot sex.” Is sorry: that correct? ...“ “... A. Yeah. Q. Okay. A. I said that. Q. Okay. And Mr. Ururyar says: “I’m pretty tired”, in response? A. Yes. Q. Okay. And another text message from Mr. Ururyar saying: “And still sick”, at 7:57:? A. Yes. Q. Okay. And then a text message from yourself at eight p.m.: “Okay, sure. Get some rest. Have a good night.” Correct? A. Yeah. Q. Okay. And then: “It’s so boring here, you’re not missing anything”, 8:15—sorry, 8:18 p.m.? A. Yes. Q. Okay. And Mr. Ururyar responds: “Oh, why?.At 8:19 p.m.?” — A. Yes. 21 — V Q. And at 8:23, you send a text message saying: “Weird vibe, I think I’ll go home soon, lol.” V A. That’s correct. Q. Okay. And then, at 8:26 p.m., Mr. Ururyar responds: going to come in a bit.” Correct? Correct? “I’m A. Yes. Q. Okay. And then your response, at 8:31 is: “Oh, miss me that much, jk.” A. Yes. Q. Okay. And then at— the messages go on afterwards, but you can’t see the rest of the message that you sent, correct? A. Yeah, correct. V Q. Okay. VVV V Exhibit number 1 B): Series of text messages identified. Produced and marked. Ms. Gray gave a statement to the police on February 2nd. V V V [53j “Q. Okay. But you didn’t make any mention of that text message that you sent asking Mr. Ururyar to have hot sex that night, correct? V A. I didn’t think it was relevant to him raping me. V V V V Q. You didn’t think it was relevant at all for the police to know that or sorry, for Mr. you had asked Mr. Ururyar to come over Ururyar to come to Victory so that you could have hot sex later? — A. I also mentioned to you that as soon as I got home that morning, I deleted him out of my phone. I deleted all the text messages and I removed him from my facebook, so I didn’t want to say anything that I couldn’t back up with any evidence because I didn’t, I couldn’t recall exactly what was said that evening. So, no, I, I couldn’t even remember what I had said in those text messages until you just showed them to me today.” V He said he was sick and tired. She was under the impression that there [54] sexual activity taking place that evening. was no — 22 — [55] “Q. You didn’t advise them that you had invited Mr. Ururyarto have hot sex that night, did you? A. I, I told you [don’t, I didn’t remember ‘cause I didn’t have the text messages. Q. I think that’s a very convenient mismemory (sic), Ms. Gray.” [56] She had 3 or 4 beers. [57] “Q. Okay. And, so, you told the police you had three beers, you’d agree with me that your recollection of how much you drank was three beers, not three to four, correct? A. Yeah, I, yeah, I guess.” MS. BRISTOW: And, so, I’m turning to page 19 of 24, of the interview with [58] Mandi Gray on February 2nd, at 22:47 hours. Q. And just at the third paragraph, it says: “Gray”, I’m reading the fourth line. It says: “I had three beers at Victory Café for sure.” [59] “Q. The question from Detective Barry says: “How much, how much did you have to drink at the bar?” Did I read that right? A Yeah Q. Okay. And then your answer says: “I don’t remember. I was trying to figure that out. I know at Victory Café, I had, I’m trying to think, I had three beers at Victory Café for sure. Urn, and then I I was like trying to, I was trying to figure it out. I was trying to think I spent $40 at the other bar, of (sic) beer but I’m not entirely sure. I’m also on medication too, so it doesn’t mix well, like with alcohol so I get really I didn’t intend on drinking that much and yeah, I think that’s (sic) was how intoxicated I was.” Did I read that correctly? — — A. Yes. Q. Okay. And you statement? — that was truthful when you provided that A. Yes.” [60] “Q. Okay. Now, you had testified that, yesterday, that Mr. Ururyar had asked you not to touch him, correct? A. Yes. — Q. Okay. And you were Ururyar, correct? —- 23 — because you were touching Mr. A. I don’t recall that. Q. Okay. So, you think that Mr. Ururyar just randomly said “Don’t touch me”? A. Like I said yesterday, I was confused because I didn’t know where that was coming from, but I just complied and I said okay. Q. Okay. I’m going to suggest that you were touching Mr. Ururyar at Victory Café? Do you agree or disagree? A. Um, like touching how, like? Q. You Were rubbing his arms? A. I don’t recall that. Q. You were rubbing his inner thigh? A.. How? Like, I was sitting down and he was sitting at a different table. Q. But you did say that you were sifting at the same table at one point? A. Yeah, when he told me not to touch him and I said okay, and I wasn’t rubbing his thigh while he was asking me not to touch him because I respect people when they tell me not to touch them. Q. You were rubbing his inner thigh. and that’s before he told you not to touch him? A. I don’t recall that taking place.” “Q. You were flirting with Mr.. Ururyar that evening? A. Aside from those text messages, I don’t recall this flirting. Q. So you told Mr. Ururyar: “Let’s have hot sex’, and then you just ignore him for the rest of the evening? A. Like I said, I didn’t ignore him. I was just sifting with my friends and he was sifting with his friends and then we had that brief interaction where he asked me not to touch him and, so, we interacted but not, not like flirting.” — 24 — “Q. And when you asked Mr. Ururyar at Pauper’s to stay over at his place, he said: “Okay, but we aren’t sleeping together”? That’s your evidence, right? A. That’s correct.” Ms. Gray met Lacey in first year of her Masters, the fall of 2013. She was [61] th 30 and she attended Paupers with her. She had also at Victory Café on January spent the night at Mr. Ururyar’s place where she has never been to Lacey’s apartment. [62] “Q. Okay. And you didn’t think to ask Lacey you know, I’m uncomfortable going home by myself in a cab, maybe would you mind if I stay over at her (sic) house, or at your house? -- A. Yeah, I could have done that and I wish I did. Q. But it didn’t cross your mind at all, correct? yeah, no, I didn’t. I had asked him and he A. No, it wasn’t lives close by, within walking distance. I’ve slept there before and I didn’t think it was a big deal. —- Q. And the reason you didn’t ask Lacey is because you wanted to fulfil your text message and have hot sex with Mr. Ururyar, correct? A. No, because I respected when he said he was tired and sick and he indicated he didn’t want to touch me and he didn’t want to have sex with me that night... Q. You say.... and I respected that and I just wanted to go home and A. sleep somewhere.” ... “Q. Now, in your statement to the police, you advised them that yourself and Mr. Ururyar hung out once in a while, correct? A. I think, yeah. Q. Okay. You didn’t want him as your boyfriend though, right? A. I did say that in my statement and that is correct. — 25 — Q. Okay. You advised the police that Mr. Ururyar tended to message you daily and want to hang out, correct? A. Can I see that?” [63] MS. BRISTOW: “Q. And Detective Barry says: “Okay, so, between now and January 16th, have you been in a relationship with hirri?” “Like it, it’s like a physical relationship. Like I have slept with him a couple times and like, I don’t know. In the beginning, he was like really, like nice and like always wanted to be around me and then like, after that, like the first week, then it just started like I would only like see him occasionally. So, like it was, it just changed, it shifted really quickly. So I guess, yeah, a relationship broadly defined, I guess though.” “Ms. Gray testified that she no longer has her text messages. I do. I have the entire two week text message relationship between Ms. Gray and Mr. Ururyar. In these text messages, it’s, in my submission, quite clear that it is not Mr. Ururyar who is saying he always wants to be around her and messaging her and what she wants to do, if she wants to hang out. It’s quite the opposite.” “Q. Having had an opportunity now to review the text messages, do you agree with me that the correspondence seems more that you are the one who’s wanting to hang out with Mr. Ururyar more frequently than he’s asking you to hang out. Do you agree or disagree? [64] MS. GRAY: “A. I think we’re making relatively equal efforts. Q. But the questions of “Do you want to hang out?”, “What are you doing tomorrow?” are all coming from you, correct? A. I would have to read these again and count them but, I, I don’t think that’s a fair assertion, no. Q. Okay. Well, let’s go through them. A. Okay. Q. Now, starting with January 19th, Monday, January 19th, it’s your first message to Mr. Ururyar and it says: “Hey, it’s Mandi, what are you up to?” Correct? Q. Okay. And then there’s some correspondence from Mr. Ururyar: “Not much, just got home from soccer. You?” Correct? — 26 — A. Yes. Q. Okay. And he says: “I was waiting for you to text me”, with a smiley face at the end? A. Yes. Q. Okay. And he also says: “I have to prepare some sort of lesson for my classes tomorrow”, correct? A. Yes. Q. Okay. You respond: “Also working, not going that well. What time you have classes tomorrow?”, correct? A. Yes. Q. Okay. And Mr. Ururyar: “11:30 and 5:30, a couple of office hours from 1:30 to 3:30”, correct? A. Yes. Q. And you respond with: “Busy. You? Well find some time to hang out with me this week.” Correct? And you have a, I think it’s a blushing smiley? A. Yes. Q. Okay. And Mr. Ururyar’s response is: “Yeah, I want to. I got much more work done when I was at your place anyways.” Right? A. Yes. Q. Okay. And then your response is: “Yeah, come over this week. I have lots to read also.” Correct? A. Yes. Q. Okay. And so that’s one of the messages I’m assuming you would describe as you’re both equally trying to hang out, correct? A. This is correct. — 27 — Q. Okay. Now, the next page, Mr. Ururyar says: Wednesday night, I’m free on Thursday.” Right? A. Yes. “I can do V Q. Okay. And then you respond: “Yeah, sure. I have class until 5:30 Wednesday but, I don’t have anything until 2:30 on Thursday.” Right? A. Yes. V V Q. Okay. Now, the next correspondence that you guys have is not until Tuesday, January 20th at 9:12 p.m.? A. Yes. Q. And Mr. Ururyar says: “I have a soccer game tomorrow at 11:30 so I don’t know if it will work. I am free tonight though, I’m leaving York now. I understand it it’s too short notice though.” Did I read that right? A. Yes. V Q. Okay. And you say: “Yeah, okay. Want to come over.” Right? V V A. Yes. Q. He says: “Yes, I will come.” Right? A. Yeah. Q. Okay. And then you respond: “If the LCBO is open in Loblaws (sic), you should bring me a king can and I will love you forever.” Right? A. Yes. Q. Okay. And you say: “Haha, okay.” Or sorry, he says: “Haha, okay.” V — 28 — A. Yes. Q. Okay. And you say: “Where are you?” Correct? A. Yeah. Q. Okay. Me just flipping the page. You say, or sorry, he says, in response to where are you: “Walking from St. Clair station. Sorry it took so long, LCBO is closed.” Right? A. Yes. Q. Okay. And you say: “K, see you soon.” Right? A. Mm-hmm. Q. And he asks you what your house number is and you respond? A. Yeah. Q. Okay. Then, he messages you on January 21st, on Wednesday, at 1:39 p.m.? A. Yes. Q. And he says: “Still in the meeting. Are you done tabling. If there is nobody to take over for you, you could bring the table ipads . . Sorry: “... bring the table, ipads and other stuff back to the office.” Right? A. Yes. Q. And your response: “Gazem(ph) said she will wait for you.” Right? A. Yes. — 29 — Q. Okay. He says: “Did I leave my water bottle at your place? It’s not there if it’s not there, I’m afraid I lost it on transit.” —- Right? A. Yes. Q. And then your response is: 1 will look. What are you doing? Are you at the underground?” Correct? A. Yes. Q. Okay. His response: “No, I went home. I might have stayed if I knew you were still around. Oh, well.” And, that’s what he said, right? A. Yes. Q. Okay. And then your response: “I have class every day, 2:30 to 5:30. You going to soccer or you want to hang out?” Right? A. Yes. Q. His response: “Soccer has been cancelled, so sure. Do you want to come over and watch a movie or do you prefer your place?” A. Yes. Q. Okay. And your response: “Do you want to come to my place? I’m just on my way home from school and I need to do a couple of things. Is that okay?” A. Yes. Q. His response: “My roommate Haley has apparently clogged the toilet with toilet paper so my place might not be a great idea. Yeah, that’s fine.” Right? A. Yes. 30 — Q. And then he continues: “I will do so. I’ll go to campus to do some tabling tomorrow and then I’ll come to your place, stay the night and head back to campus for my Friday morning class.”, right? A. Yes. Q. And you say: “Cool. Hahaha. Guess who came and saw me when I was tabling?” A. Yes. Q. He, Mr. Ururyar says: “Oh God.” And you reply: “You are right, he is an arrogant asshole. How was the meeting anyway?” Correct? A. Yeah. Q. And then Mr. Uwryar: “Really bad, it was a lot of BS and the appointed media spokespeople, not ones I wanted. Most of the meeting was an argument about how much power the bargaining team has in relation to changing the membership bargaining proposals.” Right? A. Yes. Q. And you say: “Ah, fuck that shit.” Correct? A. Yes. Q. And this is all still from Wednesday, January 2 1st, correct? Ururyar says: “Haha”, in response to “fuck that shit”. And you respond: “I just got home, what a long day.” And Mr. Ururyar says: “Yeah, too damned long.” Right? A. Yes. — 31 — Q. And you say: “Yeah, can’t wait to cuddle it up.” And Mr. Ururyar says: “Ah, I know, me too.” And you respond with: “I’m already in bed.” A. Yes. Q. Okay. Mr. Ururyar says: “Sounds comfy. Any sign of my bottle?” Right? A. Yes. Q. And you respond: “Yeah, come. I don’t see it in the kitchen or my room, so I don’t think it is here.” Right? A. Yes. Q. Okay. He says: “Fuck, that bottle was expensive.” Mister— or, sorry, you respond with: “That’s the worst.” Mr. Ururyar says: “I wish I was there eating pizza instead of eating carrots.” Right? A. Yes. Q. Then you say: “We can have a good meal tomorrow night. Maybe I will cook you dinner if it’s a good day, 101.” Right? A. Yes. Q. Okay. And Mr. Ururyar says: “You would spoil me?” A. Yes. Q. “You would spoil me.” And you respond: meals today at York, the worst.” A. Yes. “Sure, all three — 32 — Q. You (sic) respond: “Oh, yeah, that’s bad. It’s the main reason I left. I could have stayed to work but I didn’t want to eat there. However, as a result, I forgot to get a book I need to read on my Friday class, at by admin (unintelligible).” — Correct? A. Yes. Q. And you say: “You can grab it tomorrow.” A. Yes Q. With a question? Right? A. Yes. Q. Okay. “I’m just trying to think of a good....” And this is still Wednesday, January 2 1st. And you reply or sorry, Mr. Ururyar replies: “Yeah, I don’t really need to go to the campus for any other reason though. I might just try to download a copy. They seem to have enough at people tabling, so I could stay home.” — Right? A. Yes. Q. And your response: “Haha, didn’t you tell me you were you are coming tomorrow to table. If it’s at library, I can grab it for you.” — Right? A. Yes. Q. Okay. Mr. Ururyar responds: “Reflections on the Revolution in France DC1 50B95. That would be great however, I have found the E-book copy too, so it’s not essential.” Right? A. Yes. Q. And then you respond: “It’s up to you”? A. Yes. — 33 — Q. Mr. Ururyar responds wfth: “Well, I have twenty pages in an hour, I think I could go faster if I had the book” Right” A Correct Q. And then we go into January 22nd, correct? A. Correct. Q. Okay. MS. LOFFT: Not quite. Oh, yeah, that’s right. Sorry. MS. BRISTOW: And that’s January 22nd, 7:47 a.m. Q. You respond to Mr. Ururyar saying: “K, I’ll grab it this morning”? A. Yes. Q. Okay. Mr. Ururyar says: “Thank you. I have a sore throat, still want me to come?” Right? A. Yes. Q. Okay. And you respond: “Do you want to?” Right? A. Yes. Q. Mr. Ururyar says: “Yes, you won’t blame me if you get sick too?” Right? A. That’s right. — 34 — Q. And you say: “I think it is toolate for that. I will take my hippie • medicine and I will be fine.” Right? A. Yes. Q. Okay. What hippie medicine are you referring to? A. Oil of oregano. Q. And January 22nd, continuing on, he says: “Haha, okay.” V Right? A. Yes. Q. And your response: “My weekend starts today at five p.m.. Then you want to come over and read books?” A. Yes. Q. And he says: “Yes, I do.” A. Yes. V V Sorry, you say: “I woke up this morning Q. “1 woke up” as well.” this morning, .... -- sick A. Yes. Q. And you say: cCanyou text me the book and call number again?” A. Yes. Q. He responds: “Reflections of the Revolution in France by Edmund Burke, DCI5-B95”? A. Yes. V Q. And you reply: “1968 or 1973 publication?” A. Yes. V Q. And you reply, as well: “I was going to get them both but 1968 barcode is missing, so 1973 it is.” Right? 35 — A. Yes. Q. And his reply: “That’s perfect, thanks so much.” Right? A. Yes. Q. And then, and I can go through the text messages if you want but there’s some conversation after that about the printers not working and such? Correct? A. That’s correct. Q. Okay. And after the printer discussion, Mr. Ururyar says: “Geez, well, you’re almost done. What time should I come?” Right? A. Mm-hrnm. Q. Okay. A. Yes. Q. And your response: “I will text you when I leave campus. I have no plans so whatever works for you.” Right? A. Yes. Q. Okay. And then Mr. Ururyar says: “Shall I get some beer or snacks?” Okay? A. Yes. Q. Okay. And you say: “Yes to both, white beer for me.” Right? A. Yes. Q. Okay. And then you say: “K, I should be home in about 25 minutes”, and that’s January 22nd at 5:25 p.m.? — 36 — A. Yes. Q. Okay. And then Mr. Ururyar says: “Leaving my place now”. Right? A. Yes.” EXHIBIT NUMBER IC): Series of text messages read into the record. Produced and marked. And, so, you had advised that you do MS. BRISTOW: Q. AU right. [65] recall giving your statement to the police, right? “Q. And sorry, I’m not saying the exact words or the words that you said exactly. I’m just looking at page nine of twenty-four, and again, Detective Barry says: “Okay, so between now and January 16th, have you been in a relationship with him?” And your response is: “Urn, it’s like ...“, The transcript says it’s a typical relationship but my friend and I have agreed that, and correct me if we’re wrong, but in your statement you say physical relationship, not typical relationship, is that right? A. I would have to review the video again. Q. And, so, perhaps we’ll skip over that A. But I’ll agree with both. I’ll agree with that assertion, yes. like it’s a physical relationship. Like I have slept Q. Okay. So: with him a couple of times and like I don’t know, in the beginning, he was like, really like nice and always wanted to be around me. And then like, after that, like first week, then it just started “... .. . The first night Ms. Gray met Mr. Ururyar, on the 16th, she was under the [66] impression that it was just like they were going to hang out that evening and then that would be it. But, the next day, he wanted to continue hanging out with her. That was never her expectation but he seemed like a nice guy, he seemed interesting and then they ended up hanging out for that entire weekend. [67] him? “Q. You don’t recall a second time Mr. Ururyar asking you to stop touching A. That’s correct. — 37 — Q. I’m going to suggest to you that you were flirting with Mr. Ururyar at Pauper’s, correct? A. I would reject that statement as incorrect. Q. You were touching Mr. Ururyar in inappropriate spots at Pauper’s? A. What? Can you identify how I was touching him? Q. You were touching his upper thighs? A. Well, no. Q. And Mr. Ururyar at Pauper’s, when you first got there, you were sitting at the same table, correct? -- A. I don’t remember having him sit at the table with me. Q. You were sitting next to each other, weren’t you? A. I don’t recall that.” It was probably around 2:30 by the time that they left Paupers with Mr. [68j Ururyar and her friend, Lacey. Ms. Gray and Lacey and Mr. Ururyar began walking west on Bloor towards Bathurst, approximately a 3 to 5 minute walk. When the three of them left Paupers they were looking for food. Nothing [69] was open so they continued on. Ms. Gray walked to Mr. Ururyar’s apartment at the time at College and Bathurst. [70] “Q. And during that walk, Mr. Ururyar was getting increasingly angry, right? A. Correct. Q. Okay. And he was yelling at you on the walk, right? A. Yes. Q. Okay. So, with a raised voice, right? A. Yes. Q. Okay. And that all started after Lacey left in the cab, correct? A. Yes. Q. Okay. Now, before Lacey left in the cab, Mr. Ururyar, you say he was asking Lacey if she wanted to come over, right? — 38 — A. Yes. Q. Okay. How many times did he ask her? A. I recall the first time it being kind of a suggestion, hey you should come over and keep drinking. It must have been more than once because I know after he repeated it, and I don’t know how many times, I thought that it was kind of strange that it just the persistent nature of his requests while we waited for her to get a cab and she said no, she didn’t want to. She wanted to go home. — Q. You also asked her if she wanted to come for a drink, correct? A. I don’t remember asking her that. Q. But it’s possible that you did? A. It’s a possibility. you agree with me that it’s Q. And, so, it’s possible that inviting was Ururyar Lacey to come over to possible that Mr. continue the evening? Correct? — A. I would assume that was what his intention was, yes. Q. And your, you had all gone to go get food but failed, correct? A. It was a suggestion, yeah. Q. Okay. So you didn’t know if Mr. Ururyar was inviting Lacey over to have some food and drink at his apartment, right? A. I don’t know what his intention well, I didn’t know what his intention was when he was asking her until the car door until she left. — — Q. And Mr. Ururyar, you didn’t hear him mention anything about sex to Lacey, correct? A. Not that I was a witness to.” [71] “Q. And, so, the reason why you thought it was uncomfortable or it made you uncomfortable that he was inviting Lacey over is because you were jealous, right? A. I don’t think it was jealousy, it was just strange that like, his apartment is really small. In terms of logistics, I didn’t know — 39 — where we would all hang out and it was really late. It wasn’t jealousy. Have you let me reword that. Q. It’s not unreasonable ever gone to somebody’s house after the bar to just hang out? — A I have, yes, in the past Q Okay So, you’d agree with me it’s not unrealistic to invite somebody over after the bar to hang out Right? A No, but how adamant he was, was what was off-putting, I think, to me and yeah Q And how is it that you made the determination that Lacey was uncomfortable? A. I could tell in her tone of voice and she kept asserting that she wanted to go home and I was like, ‘Okay, I’ll help you get a cab.” Like, it wasn’t a big deal but he kept pushing the issue and she kept reiterating no and it was just a really strange encounter. Q. You remember that in great detail, right? You’ve provided a lot of detail to us today? A. Right.” I’ll be honest, I’ve had conversations I’ve also “A. Yes. And Lacey [72] with Lacey about it, what happened so that might have assisted my memory as well. I won’t deny that. — — Q. Who else have you talked to about the specifics of this incident? A. Mostly just Lacey about that occurrence, that was it. I haven’t talked to anybody else. My therapist, that’s it. Q. You’ve never talked to anybody else other than Lacey about— and your therapist, about the specifics of January 30th and 31st? A. That’s correct. Q. Okay. You’re not that close with Lacey, right? A. No, but I was trying to make sense of what happened. Q. Well, what does Lacey have to do with what happened at Mr. Ururyar’s house? —40— A. It has a lot to do with why he had the impression that we were going to go back to his place and have sex, all three of us. So, I asked her if something had occurred at the bar that I was not a party to. And I had that conversation with her.” [73] “Q. You were disappointed that the second week of your relationship with Mr. Ururyar he was showing a lot less interest in you? Correct? A. I think it was mutual.” [74] “Q. And, so, why were you angry with him?” “A. Okay. So, this one night we went out and he was being really grumpy [75] the entire night and I he was sick, remember, he was sick. And he was just being so miserable, I didn’t know what his problem was. And then, so he told me he was going home and I had a bunch of stuff at his place, so I was like: “Okay, I’m going to come with you. I’m going to grab my stuff and then I’m going to go back out with my friends.” — [76] “Q. And, so, the Saturday was January 24th, Friday was January 23rd, do you know which date that was on? A. I don’t recall if it was a Friday or a Saturday. Q. And, so, on that occasion, Mr. Ururyar had joined you and your friends that evening? A. Yeah.” “Q. Okay. And what belongings of yours did you have at Mr. Ururyar’s [77] house? A. Just like a backpack with some things in it. And then we went out ‘cause the bar was near his apartment, so I just left them there ‘cause I wasn’t going to carry a backpack with me down College Street. V Q. Okay. And, so, after you left Mr. Ururyar’s apartment the second time, to grab your things, did you take your backpack with you?” On Saturday, January 24th they went out and then we didn’t text again until [78] the Tuesday the 27th. “Q. Okay. And you message Mr. Ururyar and say: “Hey, what’s up?” A. Yeah. — 41 — Q. And he responds: “Just eating a late dinner. Still recovering from a cold. You?” Right? A. Yes. Q. And then you say: “Same. Are you feeling better? Miss you.” Right? A. Yes. Q. And then Mr. Ururyar says: “I’m feeling slightly better.” Right? A. Yes. Q. And your response: “Good. Take care of yourself. Heard the meeting today was dramatic as per the usual.” Right. A. Yes. Q. And then he responds saying: “Thanks. It wasn’t that bad, I thought but maybe I’m just getting used to it. I miss you as well.” A. Yes. Q. And then your response is: “Let’s make up”, Right? Yes.” [79] “Q. Okay. And you’d agree with me you’d taken cabs by yourself before, by that time, right? A. Yeah, but previously, I had a really negative experience in a cab just a couple weeks prior on my way back from Pearson Airport and I was really apprehensive because of that really awful experience.” [80] “Q. And lwantto return to the evening of the 24th when Mr. Ururyar joined your friends. You described an incident where you went back to Mr. and you Ururyar’s apartment to get your belongings, right?” — 42 — [81] “A. I just thought it was like he wasn’t taking my needs into consideration and I don’t think it was uncomfortable, it was just like why are you disregarding what I’m asking you.” “A. Okay, so, how it went down was we went he went into his we went [82] into his room or he went into his room. 1 was there and then he like, he started watching porn, didn’t like ask me or anything, just put it on, started watching it and then he just wanted to have sex with me right in that very moment. And I indicated that like, I like either, like it wasn’t like I just wasn’t at that place and then he got angry at me and was like: — — -- “Well, I don’t want to fuck you anyways”, or something along the lines. And then I was, I was annoyed at him for being so like, just not taking my needs into consideration. And, so, I left and I was like, I don’t need this, like, I’ll go home or not, sorry, I’m not going to go home, I’m going to get my belongings and like leave, because that’s not the type of sexual interaction I was interested in having. - Q You were just there to pick up your belongings in any event, right? A. Correct. Like he was, he was not feeling well and wanted to go home and go to bed or whatever he wanted to do. He was in a bad mood. Q. And how long were you there before you decided to leave? A. Oh, maybe fifteen minutes. Q. Do you recall what time of day this was? A. Yeah, it was the evening, like, maybe around like nine or ten o’clock maybe.” [83] “Q. All right. Now, taking you to January 31st, 2015, you get to Mr. Ururyar’s apartment after Pauper’s. Do you recall who walks in the door first, yourself or Mr. Ururyar? A. I don’t recall. He has a key so I would presume he did. Q. Okay. Are youwearingacoat? A. It was quite cold so yes, I would have been wearing a coat. Q. Were you wearing shoes or boots? A. I don’t remember my footwear of that evening. —43— Q. Do you recall taking it off? A. No. Q. Do you recall taking your coat off? A. No. Q. Okay. Do you recall where you put your coat or where your coat was? A. When I woke up in the morning? remember. Actually, no, I don’t Q. Okay. When you woke up, you weren’t wearing your coat though, right? A. That’s correct.” [84] - “Q. Okay. When you woke up, you were just wearing a bra and tanktop? Yes. Q. Okay. And you don’t remember taking your pants or your underwear off, correct? A. Correct. Q. So, it’s possible that you took them off yourself, correct? A. I, yeah, it is I don’t I recall I don’t I know I didn’t take my underwear off but, I could have possibly taken my pants off. — —- —- — Q. But when you gave your statement to the police, you said that you didn’t remember taking your pants or your underwear off, right? A. I guess it’s like I, I did not want to have sex with him so there would be no reason for me to take off my underwear, and that’s why I’m adamantly rejecting this suggestion that I would have taken off my underwear. I might have taken off my pants, it’s common for me to sleep in my underwear and a tanktop but, I often don’t sleep without panties on, so that’s why I reject that statement. —44— Q. Well, I A. It would be out of character for me to sleep without underwear on.,, [85] “Q. I’m just asking you whether or not you recall telling the police that you don’t remember taking your pants or underwear off? Do you want to see the statement? A. Yeah, no, I understand that I said that. I just I didn’t go into great details that I usually, if I I just didn’t go into the details of my reasoning of why I would reject that. But yeah, I don’t remember the exact moment in which my pants or my underwear came off. If it happened with I don’t remember a timeline of when that occurred. — — — Q. Okay. But I’m not asking you about a timeline, I’m just saying I’m asking you about whether you recall giving a statement to the police and saying: “I don’t remember taking off my pants and underwear”? — A. Okay, yes. Q. Okay. And, so, it’s safe to say, you’d agree with me, that you don’t recall taking off your pants or underwear? It’s possible that you could have taken off your underwear and pants yourself? A. I mean, I guess it’s possible but like I said, taking off my underwear myself is like a very low possibility. Q. You don’t remember, right? A. Yeah, you’re right. I, I all I’m going off of is knowing myself and yeah, I don’t like have the, a detailed memory of that occurrence. — Q. And you also don’t remember Mr. Ururyar taking off his pants or taking off his clothes?” [86] “Q. So, again, it’s possible that you could have even taken his clothes off? A. I -- there’s no way that I would have done that. Q. But you don’t remember, right? A. I was not an active participant in that interaction in any way. —45— Q. But you don’t remember, right? A. I remember that I had no part in that. I’d like to reread that exact statement, please. Q. And well, I we’ll go up and give you, your statement. It’s on page 15. And, so, Detective Barry, about halfway down the page, on page 15, says: “So, did he get undressed?”, referring to Mr. Ururyar. And your response: “I’m just thinking, yeah, he did. He must have because when I woke up, his clothes were next in the bed and I don’t remember like every I vaguely remember things: But I remember when he did that to me, he wasn’t wearing like underwear or pants, so he must have been.” — —- — Did I read that right? A. That’s correct. Q. Okay. And, so, you’d agree with me that you didn’t remember Mr. Ururyar taking off any of his clothes, right?” [87] “Q. But you didn’t tell the police that, that you didn’t take off his clothes, correct? A. So, am I supposed to go through everything when I talk to the police. I didn’t take off his clothes, he didn’t take I don’t know if he took off his clothes or when he took off his clothes there. —- Q. So, you have no recollection whatsoever how Mr. Ururyar’s clothes came off? A. I was not involved in his clothes coming off.” [88] “Q. You remember the walk home with Mr. Ururyar to his apartment, it was a very uncomfortable experience, right? A. Yeah, I guess uncomfortable is the word to use, sure. Q. Did you say comfortable or uncomfortable. A. Uncomfortable. Q. He was screaming and yelling at you, right? A. I wouldn’t use the word screaming but he had a raised tone and voice with me, one in which it was a very angry it was angry, yes. — —46— Q. And I think you defined it as verbal aggression, right? A. Correct. Q. Okay. You remember Mr. Ururyar was angry for you not pursuing Lacey in coming over, correct?” [89] “Q. Okay. You remember Mr. Ururyar getting angry at you about people coming forward and asking him about your relationship with Mr. Ururyar? A. Apparently, yes. Q. Okay. You remember him getting upset with you about his girlfriend finding out about your relationship, right? A. Ew,yeah. Q. You remember arriving at Mr. Ururyar’s apartment, right? A. Vaguely. Q. You remember going straight to his room, right? A. Yes. Q. You remember that Mr. Ururyar didn’t wear a condom, right? I’m sorry, you just have to A. Yes. Q. Thank you. You remember crying prior to having sex, right? A. No. We -- I cried after the rape took place.. Q. Now, when you were describing the way that Mr. Ururyar had sex with you, I believe you said he was he grabbed the back of your head? — A. Correct. Q. And can you just show us again? A. Like . ... [90] “Q. Okay. So you’re grabbing with your right hand, you’re grabbing hold of a ponytail or a bun at the back of your head? A. Yeah, I don’t know what hand he used. I just know that it was, like I said, I was sitting on the bed and he was standing up talking — 47 — down to me. He said what he said and then, and then he like, pushed my head onto his penis and I don’t know what hand he used. I just, I could feel that and I felt it going into my mouth and yeah. Q. Okay. So, with either the right hand or the left hand but not both hands? A. Not both hands. Q. Okay. And in the morning, when you woke up, you said that Mr. Ururyar did the same thing in pushing, trying to push your head onto his penis, right? A. Correct. Q. Do you recall if Mr. Ururyar was wearing any clothing at that tIme? A. I don’t recall what he was wearing. Q. You said that you texted a friend of yours after you left Mr. Ururyar’s apartment in the morning, correct? A. That’s correct. Q. Who did you text? A. Mylene.” [91] “Q. And when you woke up in the morning, how was Mr. Ururyar positioned? A. Like I mentioned, I could feel movement next to me whiôh like woke me up and he was masturbating and I was confused. And then he saw that my eyes had opened and then he pushed my head and I was able to and I said no, and I got up and I left. — Q. Well, how was Mr. Ururyar positioned? standing, laying down? Was he sitting, A. He was laying in his bed. Q. Okay. And were there covers on, no covers on? A. I don’t remember. — 48 — Q. Could you see his penis? A. Yes. Q. And, so, were there no covers on or did you have the covers over your head? A. I guess there would have been no covers then. Q. And where were you positioned when you woke up? A. I woke up, like lying like he was sleeping on, I guess the left hand side. If I was like looking at the bed, he was on the left hand side and I, like when I said I was crying in the fetal position, I cried I fell asleep like in that fetal position facing the wall. —- — Q. Okay. So the [92J — and it’s a queen sized bed, right?” “Q. And, so, you were facing the wall when you went to sleep? A. I don’t remember, that’s how I woke up but, I, I would assume so. Q. Okay. And, so, when you wake up, when you open your eyes, your eyes are facing the wall, right? A. Yeah. Q. Okay. A. And I moved over ‘cause I felt movement and that’s when I saw him masturbating and I was confused. Q. And, did Mr. Ururyar force your head with one hand or two hands? A. I don’t recall. Q. And when Mr. Ururyar forced his, tried to force your head onto other than the head in the hand, did you his penis, did you come into physical contact with him? — A. What do you mean? Q. Did your mouth touch his penis? A. No, I he wasn’t pushing hard. Like, it was more of a, like it wasn’t, I don’t know how to best describe it but, it was not an aggressive push. It was kind of just like oh, you’re awake, I’m —- — 49 — going to, I’m going to give you this suggestion that you need to give me a blow job, which I was really, like I said, confused about because I went to sleep crying and I thought a decent human would ask me if I was okay when I woke up the next day. And I was able to come to and I was sober at that point and 1 just got up and I, yeah, and I left. So, it wasn’t, like it wasn’t there it wasn’t a lot of physical force but it was enough that I was uncomfortable. It wasn’t, like it wasn’t very it wasn’t a lot of physical force but it was enough that I was uncomfortable with that gesture and it was not a welcomed gesture at all. -- -- — Q. And did you have to climb over Mr. Ururyar to get up? A. From what I remember and like, this is a year ago already, I remember, I think I just got up at the end of the bed. My clothes were at the end of the bed, I put them on and I just got out of there. Q. Did you have any conversation with Mr. Ururyar? A. I said something to affect and I think this is in my police statement so I might need to reread it for verbatim, but I said: “No, I’m not letting you do this to me again.” Or: “No, I’m not doing this.” Q. And what was Mr. Ururyar’s reaction? A. He didn’t care. It didn’t seem to phase him one bit. Q. I’m going to suggest to you that that never happened in the morning? Mr. Ururyar never forced your head or tried to lead your head towards his penis? A. Well, then, like was he masturbating next to me?” [93] “Q. I’m going to suggest when you woke up, you got dressed right away and you could tell Mr. Ururyar was still sleeping, correct? A. No.” [94] “Q. And I’m going to suggest to you that when you woke up and put your you were glaring at Mr. Ururyar as you took your purse and left, right? on, coat A. I was probably glaring at him because I was so angry. Yes, I could see myself doing that. Q. You didn’t say a word to him in the morning, correct? —50— A. No, like I said, I said: “No, you’re not doing this to me”, or something to that affect.” His bedroom is the first one on a long hallway. She didn’t know if the other [95] was open or closed. But she did hear some “rustling” around in the morning. [96] Ms. Gray agreed that $40 on beers would be about four beers. So, the $40 was approximately four drinks that she had, maybe less depending on if you bout one for a friend. In total that night, she had maybe 7 beers. She was sitting at a booth with some friends just talking, she was not slurring. She was coherent: It was not a situation in which she felt embarrassed about. She was not embarrassed about anything that happened that night at Paupers or at Victory Café. If she had to guess, it was as early as 7:00 p.m.. when she arrived at. the [97] Victory Café. She saw the accused with a beer at one point. He was standing next to the bar at Paupers when she went over and asked him if she could crash at his place. That’s the only time she remembers seeing him drinking. When she arrived at Mr. Ururyar’s apartment on January 31st, he was still quite angry with her, a-very aggressive tone. It wasn’t yelling. It was really scary but it wasn’t yelling. It was really aggressive but she wouldn’t classify it as yelling or screaming. [98] “Q. Do you recall telling the police that he was yelling? A. Yeah, can I take a read at that statement again, please? Q. Of course. And, so, page 14, at the top of the page, Detective Barry says: “Okay, so where did where were you, to start with, in the apartment when you’re in it?” —- And your response: “We walked in and then we just like walked right into his room and I was just sitting on his bed. And I remember I was just sitting on his bed and like, he must have been standing up and like, he was like yelling at me and like, really mad at me. And like, I was just like why don’t you, why don’t you go to sleep. But yeah, and I’m yeah.” —- [99] “Q. I’m going to suggest to you that when you entered that room, Mr. Ururyar’s room, that you took your clothes off, right? A. I took my clothes off? Q. Right? A. Urn, no, that’s not what I said in my statement. Q. You got under the covers, correct? — 51 — A. No, like I said, I was sitting on the bed. I was just sitting on the bed and he was standing. It wasn’t that we got in the room and I got undressed and under the covers. Q. I’m going to suggest that you got under the covers and moved to the side closest to the wall, right? A. That’s not what I just said. Q Do you agree or disagree with me? A. I disagree with that statement. Q. Now, Mr. Ururyar also got undressed, right? A. I don’t — like, I said, I don’t, I don’t recall witnessing that. Q. He got under-the covers next-to-you, correct? A. No.” [100] “Q. And you leaned in to kiss Mr. Ururyar? A. We did not kiss once that night. •Q. You agree ordisagree? A. I disagree. Q. I’m going to suggest to you that Mr. Ururyar leaned back when you leaned in to kiss him? THE COURT: Sorry? - - - MS. BRISTOW: I’m going to suggest that Mr. Ururyar leaned back when she leaned in to kiss him. MS. GRAY: - - A. No, because we never kissed and I never tried to kiss him. Q. I’m going to suggest to you that Mr. Ururyar told you: “I don’t want to have sex”? Right? - A. I wish he said that. He did not say that, I mean. Q. Mr. Ururyar told you: “I want to end this relationship”, right? — 52 — A. No, he said: “I’m going to fuck you and you’re going to like it.” And that’s what he said to me, as I said in my statement. Q. And he told you that— Mr. Ururyar told you that he didn’t think that the two of you were compatible, correct? A. Yeah, he didn’t articulate any of this in words to me. Q. And Mr. Ururyar had expressed embarrassment as to the way that you were acting at the bar with him, correct? A. Yes, he articulated that he was incredibly embarrassed about my actions because I was a drunk slut and he made that very clear when I was sitting on his bed and he was standing above me, not next to me in the bed. And màdé it very clear that he thought I was an embarrassment, a drunk and a slut and he wanted nothing to do with me. Yes, he made those things very clear.” [101] “Q. You told him: “I don’t really know what the big deal is”, A. Like where, in his apartment? Q. Right. A. There wasn’t any dialogue. It was him calling me names. There was no dialogue. I didn’t say anything. Q. You didn’t say a single word in his apartment? A. No.t.that I can recall. Q. I’m going to suggest to you that Mr. Ururyar was not yelling at you? A. Okay. Well, like I said, there was I said it was aggressive verbal tone but, I don’t know what, like if yelling like, I don’t think yeah, he it was I’ll call it yelling. It wasn’t— it was not, it was not a dialogue. It was not a conversation, it was him telling me. It was a very, very it was intimidating and scary conversation. It wasn’t even a conversation. I don’t even want to use that word. It was him demonstrating his dominance and aggression. — — — — — — Q. I’m going to suggest that Mr. Ururyar didn’t display any anger towards you whatsoever that evening? Correct? —53— A Then, I don’t know why he would have apologized to me in those text messages you showed me earlier in which he stated he was angry. Like, yeah, he was angry. I, yeah, he was angry. He was very angry. I’ve never there are very few circumstances in my life in which I’ve seen somebody that angry. — Q. Mr. Ururyar never says in his text messages that he’s angry, right? A. Can you read the very last one to me, please? Q. I’ll let you see them. Mr. Gray reading, silently A. Okay, yeah, you’re right. He didn’t say he was angry. Upset.” [102] “Q. And to be fair to you, the text messages or the text message reads, that he sent: “I’m sorry that things went as they did.” [103] MS. BRISTOW: That is Thursday, February 5th, 11:52 a.m.. MS. LOFFT: Thursday, February 5th, eleven fifty — I don’t have that. Q. And that’s fine, we’ll get to that but I just want to make sure that it’s clear what the message is so that the court understands what the message is that you sent. Or that he sent. It says: “I’m sorry things went as they did. I shouldn’t have said and done of the things that I did. I was upset and felt wronged by you, but that does not excuse my mistakes.” And that’s what the text message says, right? [104] “Q. I’m going to suggest to you that, and Mr. Ururyar will have an opportunity to explain what that textmessage is about, but the argument that happened or the issue that happened on January 30th was not Mr. Ururyar sexually assaulting you, it was that he broke up with you... A. But there was Q. ... .... and then you had sex? A. Broke up with me?lt was not relationship, I was not one — yeah, we’ll agree that that ....“ [105] “Q. The, I know you can’t answer as to what’s in Mr. Ururyar’s head but, I’m going to suggest that what the disagreement that Mr. Ururyar was referring to is not —54— you being raped by him, it’s that he broke up with you and then proceeded to have sex with you afterwards? A. Sorry, I’m just trying to process this question. I, after that night, I, I don’t know in terms of breaking up. Like, it wasn’t a conversation. Like, he made it very clear that he wanted nothing to do with me and, like to be quite honest, it’s like why would I want somebody in my life that treated me that way either.” [106] “Q. Mr. Ururyar told you: “My girlfriend is coming and, so, this relationship is finished”, right? A. That’s not exactly what he said. Q. Well, what did he say? A. He said it could continue as a secret. Q. I’m going to suggest to you that’s not what he said, he broke up with you and you began to cry? A. No. When? When did I cry? Q. Before you had sex? A. No. Q. And when you first got to Mr. Ururyar’s apartment, you got into the bed and when he(sic) leaned in to kiss him, he said: “No, this relationship is done, I don’t want to be with you anymore”, and you began to cry? A. Like I said earlier, I’m not a person that cries often and I would not cry if he broke up with me. No, that’s not what happened. Q. Then Mr. Ururyar tried to console you when you were crying, right? A. He never consoled me once that entire, that entire experience. He did nothing to comfort me or make me feel better. Q. And as he was trying to console you, “we both leaned in and began to kiss”, correct? A. There was no kissing that took place that night. Q. And then you got on top of Mr. Ururyar, correct? — 55 — A. No. Q. And you began to perform fellatio, correct? A. No. Q. And then you moved to get on your hands and knees, correct? A. What? No. Q. And Mr. Ururyar got up and began to have sex with you from behind, correct? A. Him and I have two very different experiences ‘cause I don’t recall any or none of this happens. — Q. Mr. Ururyar did not use a condom, right? A. That’s correct. Q. And you inserted Mr. Ururyar into your vagina, correct? A. No. Q. And the reason you had no concern with Mr. Ururyar not using a condom is because you had told him you were keeping track of your cycle, correct? A. I do that, yes. Q. And you had told Mr. Ururyar that, correct?” [107] “Q. And how do you feel that Mr. Ururyar was controlling of you? A. His needs came first in every two.of us. — in interactions between the Q. And can you give us some examples, what you mean by that?” [108] MS. GRAY: Yeah. So, yeah, that’s a good one in terms of him telling me “don’t touch me”, for example which was never a conversation. It was not in relation to me, I hadn’t touched him. I hadn’t groped him at the bar, as you had suggested yesterday. It kind of came out of. the blue, “don’t touch me.” That is one example of his kind of mentality in terms of his entitlement to me and other women. [109] “Q. Now, after Mr. Ururyar raped you, you did not go straight to the hospital, you went home, correct? —56— A. That’s correct. Q. Okay. But what you did do is speak to your friend about your not being sure of you consenting to sex, correct? A. I have the text messages here that you can read out, if you would like, of exactly what I said? Q What you told the police is that you weren’t sure A. I said I can read out the text messages, I have them. I said to her: “Last night and this — ....“ THE COURT: Well, perhaps we can geta bit ofa time sequence here, in terms of when you went home and when all these MS. GRAY: Yeah. THE COURT: ... transpired. MS. GRAY: Sure. MS. BRISTOW: And the message that I’m referring to is what my the complainant has testified in regards to leaving Mr. Ururyar’s apartment. — Q. And I believe it was about 9:45 a.m., that you sent a text message saying: “I don’t think I consented to sex?” A. Yeah, and I’m saying I have the text messages and I reviewed I said them last night, and I said: “Last . .. .“, THE COURT: That’s February the 1st? MS. GRAY: Yeah. MS. BRISTOW: January 31st, I believe. “Q. I’m sorry, continue. A. Yes, so I texted my friend Mylene as I was waiting for the streetcar at College and Bathurst, and I said to her: “Why do I meet abusive psychos?”, And she responded: “What happened?” And I said: “Last night, Mustafa fucked me and I didn’t want to.” And then I did say that day: “I don’t know what it is. I didn’t consent but I didn’t not consent...” referring to my not saying no explicitly. “I don’t know what to do”, is what I said to her. -- — Q. And do you have — 57 — you said you have those text messages? A. Yeah, they’re in my purse, printed out.” MS. GRAY: So, on January 31st, 2015, at 9:43 a.m., I texted Mylene Eniscensio (ph): “Ah, why do I meet abusive psychos?” At 9:47 a.m., she responded: “What happened?” I responded: “Mustafa is a psycho and I woke up and I know he fucked me and I didn’t want to since he yelled at me and talked down to me for fifteen minutes.” At 10:10 a.m., she writes: serious.” “Are you okay? That’s fucking And I responded: “Yeah, I’m just really fucking mad. I woke up and he tried to push my head to give him a blow job.” She responds: “What the fuck? What an asshole.” I said: “I know.” And she says: “Is he still there?” I responded: “I don’t even know what to do. No, it was at his place, I just got home.” And she says: “Did.you bitch him out?” I said: “No, what’s the point? He’s just turns it around and makes it turns it around into my own fault.” — V She responds: “Wow, he’s a manipulator.” I said: “I know he is. I don’t want to know him anymore.” She says: “I don’t think it’s healthy for you to see him again.” And I said: “His girlfriend can have him.” She says: “Honestly” And I say: “I don’t think so. Every time he sees me, he just gets more abusive.” — 58 — She says: “He may say and do nice things time to time but what you just told me, he’s not respecting you at all.” And 1 said, and this is what I responded to the police is: “Like, if you don’t consent to sex but you don’t not consent, I don’t know what that is.” She responds: “That’s rape, for real.” And I said: “Ugh, I know you’re right. Ugh.” She says: “I think you’re in denial right now and you want to think that it’s not, but it is.” And she says: “Were you drunk?” And I said: “I just feel like shit. I was blackout drunk pretty much. All I remember is him yelling at me for being a drunk, for being needy, that everyone knows about us and it’s all my fault, etcetera. And I just remember thinking, just kill me or fuck me and get it over with because it’s easier than listening to this.” And she responds: “Mandi, that’s serious. The fact that you were blackout drunk, that you were thinking of those negative thoughts about yourself and the fact that he was yelling at you. I’m your friend and I love you but I think you need to stay away from him and remember you deserve better or you’ll be walking down a dark path if this doesn’t change.” Then, at 10:32 a.m., I responded: “I know it’s true. It just sucks because that means not going out with a lot of people. It just happened we were at the same bar. You know why he was so mad, he said I didn’t try hard enough to get someone to have a threesome. He was trying to get my friend over and he was mad that I didn’t get her to try to come over. Like, why would I do that?” And she says: “It is, and I really do hope you stay away from him I know it’s easier said than done.” And I write: “Yeah, I know but I don’t even want to be around him at all.” And she says: “What the fuck. Wow. I can’t believe what a jerk he is.” — 59 — I said: “I know.” He’s just viewing you guys as objects so he can get his sexual desires.And that’s scary he freaks out if he doesn’t get it.” Or: “... when he doesn’t get it.” And I said: “Yup, he’s a psycho.” She says: “He is.” I say: “I’m so mad. I don’t even know what to do but I guess there’s not much other than block and delete his contact info. I’m glad I’m going on vacation, I think that will help.” At 10:40 a.m., she responds: “Yeah, I think that will help too. You can clear your mind of him.” And I said: “Yeah, what a relief. So many psychos I encounter. And I honestly get it.” She says: “It might be easy to text or call and see him because you feel lonely but what’s the point if you feel even worse after. Yeah, man, I can’t believe how abusive and manipulating he is.” I said: “I mean it’s one thing to be a jerk, but it’s another to fuck me when I’m upset and I don’t want to do it. Like, our relationship was fun for a week and then it stops being fun but I just thought he was having a bad day. But this is confirmed that he’s a miserable woman-hater.” She says: “Exactly.” And I said: “Like the last two weeks have been miserable. He’s always in a bad mood. I stopped texting him and everything. It got to be too much.” She says: “Yeah, he’s a psycho and I think he’s taking advantage of the situation.” And then it continues on in unrelated conversation.” [110] “Q. So, just in regards to one of the messages you read out, you specifically say, “Like, if you don’t consent to sex but you don’t not consent to sex, I don’t know what that is”, right? V — 60 — MS. GRAY: A That’s correct and that was in my reference to I didn’t explicitly say no, as I had indicated to the police when they asked me Q. Okay. And, so, you agree that you didn’t—you did not say no? A. I’ve never denied that I didn’t verbalize my non-consent.” [1.11] “A. No, and I recognize the discrepancy in the term blackout drunk but I just meant I was really intoxicated and it was not the proper terminology to use, I recognize that. But, I wasn’t blackout drunk, I was just really intoxicated.” Text messages of January EXHIBIT NUMBER 2: marked. EXHIBIT NUMBER 3 Interview with Ms. Gray Produced and marked. — — st, 31 2015. Produced and Monday, February nd 2 2015. [112] “Q. Now, after you had some conversation with your friend, you still waited almost a day and a half to go to the hospital, is that correct? MS. GRAY: A. That’s correct. Q. Okay. And even after the hospital, you still weren’t sure whether or not you were going to make a report to the police, correct? A. That’s correct.” After that she spoke to the same person that she had spoken to in the [113] morning. She called my mom Monday morning and told her that she was going to go report but didn’t articulate the details of the assault. [114] “Q. But you still waited until February 2nd, you know, you called in the afternoon, I believe, to report him? A. Yeah, and my justification or not justification, aside from the obvious not wanting to proceed through the judicial system for obvious reasons, as well, as I didn’t know how the school would respond if I reported to the police. So, I wanted to make sure that I made an informed decision that if charges were pressed, what that would mean for my future as a PhD student at York University. I wanted to know because I was fearful, like how the university would handle it before I proceeded — 61 — wfth charges. So, I waited because it was the weekend, obviously nobody was in their office or around. So, I called the I called my Graduate Program director and the CUPE office, as I mentioned to you yesterday, before making an informed decision. I think that, yeah, I wanted to have all the information before I proceeded. — Q. So, based on what was going to happen at school was going to be your decision on whether or not you wanted to report a violent rapist? A. Well, I also wanted to take into consideration the impact on my career if nobody was going to do anything and the way I saw it was, I just didn’t know if all my work in my PhD was going to be thrown away over this incident and I really needed time to think that through. Q. So, your career was more important than getting violent rapist off the streets? A. I’m sorry what? Q. You wanted to know how this was going to impact your career if you reported this to the police, so I’m suggesting to you that your career was more important than getting a violent rapist off the streets? A. I would not [115] MS. LOFFT: I’m actually going to object to that question, Your Honour, on the basis that it asks of the witness first of all, it assumes facts that are not in evidence and so, the reality is that it’s notthe responsibility of the victim to clean up the streets, number one. — Number two, it’s the question is I just basically believe it’s unfair. I mean, you know, the accused is sitting here having had and the information will reflect he was released from the station — — -- ...“ [116] “Q. So, my suggestion is that it was more important to find out what was happening with your career.... MS. GRAY: A. That, I did take my career into 1 consideration but another consideration I had was how the university would deal with it in — 62 — terms of the safety of other women on campus. And as you would know, I’ve done a lot of activism in ensuring that women in his department are aware that he has been charged with sexual assault. So, I would in fact, reject that, that it was more my career has been more important because if anything, I’ve done more damage to my career than I have good through all of this. — Q. And how have you done more damage to your career? A. Well, I’m a public rape victim, first of all challenging a multimillion dollar corporation, York University for their complete failure in the circumstance and I’m in academia. I mean, I don’t think that’s a selling feature for my career.” [117] “Q. I’m going to suggest the reason why you waited almost three days to report this incident is because you wanted to have time to think about your story, correct? A. Think about it? Of course, I was thinking about it. I was thinking about I was in denial, like most victims of sexual assault are. I was trying to figure out how this person who was seemingly nice to me at times could turn into such a violent individual with very little reason or yeah, like, of course, I was thinking about it. I Was thinking about all the options and what this process would be like for me. I don’t think that is unusual. — -- Q. I’m going to suggest that trying to think about how you can assert revenge on Mr. Ururyar for breaking up with you for his girlfriend? A. Sorry, it’s just so absurd to me. I would never destroy my life or someone else’s life and put everything on hold for an entire year for someone I had known for. two weeks.. It’s just, it’s yeah, no, that is completely false.” — [118] “Q. Yet, you felt safer going to Mr. Ururyar’s house rather than going home, correct? A. And I also said yesterday that I had no self-esteem and at that point, I just didn’t even care. I was just existing that I completely disassociated, disassociated from the realities.” [119] “Q. So, as soon as the cab door shut and Mr. Ururyar first got angry with you, you didn’t walk away at that point, right? A. No, and I’ll have to regret that for the rest of my life. — 63 — Q. Now, at that point, your self-esteem was still fairly high, correct? A. Yeah. Q. But you didn’t think he’s been angry with me before, this is don’t want to go home with this person, right? — A. I didn’t think he would rape me.” [120] “Q. I never suggested that anything was your fault. A. Okay, you’re right, I should have gone home. Q. I’m not saying that you should have gone home. I’m not putting words in your mouth, I’m saying that you didn’t go home? A. I did not go home, that’s been established. Q. Now, you felt your self-esteem had been worn down by the time you got to Mr. Ururyar’s house, right? — A. Yes. Q. But despite that, at no point during that twenty to thirty minute walk did you make any attempt to flag someone down, call a friend do anything to get yourself away from Mr. Ururyar, correct? or A. No, I don’t recall any of that. Q. You still felt safer going to Mr. Ururyar’s house rather than calling Lacey and saying there’s a problem, right? A. I thought he was I didn’t think he would escalate to that extent. I thought I could go to his place and sleep, like I’ve said before. angry, Q. He was verbally aggressive, berating you, yelling at you, screaming at you in the middle of the street ahd you didn’t think that I mean, there was already fear in your mind, you didn’t think that it would be a wise decision to get out of there while you could? -- A. At the time, I can’t recall what I was thinking but it was also, as we’ve said, it was January, it was extremely cold, I spent all my V — 64 — it’s like, money at the bar, TTC was done for the night. Like I it’s harm reduction. It’s picking the lesser of two potential shitty situations. — Q. You had a phone though, right? A. Yeah, I had a phone. Q. You could have called someone? A. I could have. I could have done a lot of things. Q. You had literally just left Lacey a few moments ago and you didn’t call her back or call her? Right? A. Yeah, I did not call Lacey. Q. Instead, you chose to go home with somebody who was berating you, angry and yelling at you? A. You are absolutely correct.” [121] “Q. I’m going to suggest that Mr. Ururyar did say: “It’s top bad Lacey didn’t come over”, correct? A. He was disappointed that Laöey didn’t come over, yes. Q. And your response to him was: “Aren’t I enough for you?” Correct? A. As I said yesterday, I don’t recall ever saying those words. Q. And Mr. Ururyar responded with: “Yes”, and grabbed your hand and you were holding hands on the walk home? A. No, we never held hands. We did not have any physical interaction on that walk home.” [122] “Q. I’m going to suggest to you that you were the only one that thought that Mr. Ururyar was trying to have a threesome with you and Lacey? A. He explicitly stated that to me, as soon as she got in the car, that he wanted to have a threesome and I wasn’t able and then I didn’t try hard enough to get her to come home with us. Q. As you mentioned, there was no discussion about a threesome with either yourself or yourself and Lacey and Mr. Ururyar, correct? — 65 — A. Yeah and that’s why it was so surprising. Q. And the reason why it’s so surprising is ‘cause it didn’t happen that way, right? A. Yeah, and Lacey’s here, you can ask her. Like, it’s not it was never a conversation and that’s why it was so surprising.” — [123] “Q. You testified to some extent what happened during the sexual encounter. You said that he grabbed your head and put his penis in your mouth? A. Yes. Q. Where were your hands when he did that? A. I don’t recall. Q. Where were his hands when he did that? A. As I said yesterday, I remember one hand on the back of my head and I don’t know where the other hand was. Q. You didn’t pull away? A. No, like I said I felt that I had to just comply because I was really scared. Q. He didn’t tell you that you had to comply? A. No, but it was very much apparent that that was expected. Q. And something you assumed? A. It was the perceived threats or perceived fear and whether the actualities of physical violence were possible was a very real experience in that moment. And I thought that him having sex with me, raping me would be easier than being beaten up. Q. And you said that he’d never beaten you up before though? A. No, but I’ve also never seen him that angry. Q. I’m going to suggest you were actually moaning during the incident, correct? A. No. Q. Where were you positioned when Mr. Ururyar grabbed your head and forced his penis in your mouth? — 66 — A. As I said yesterday, I was sitting on the edge of the bed and he was standing up. Q. And how were you sitting, did you have one leg upon the bed, two legs A. No, just like a regular sitting position. Like this. Q. Like sitting in a chair? A. Yeah. Q. Okay. Did you move at all? A. While he forced me to give him a blowjob? No. Q. How long did that last? A. I don’t remember. Q. One minute, two minutes? A. I don’t know. Q. Five minutes? Ten minutes? A. I don’t know. Q. You have absolutely no idea? A. It wasn’t up it was— it wasn’t ten minutes. I wouldn’t say it was long because he to have sex with me and I don’t think that would be a reasonable time frame but, yeah, I don’t know. Afew minutes, give or take. — Q. And was Mr. Ururyar sitting or standing? A. I told you he was standing. Q. Completely upright on both legs? A. I think so, yes. Q. Was he crouching at all? A. I don’t know. — 67 — Q. Ishe.... A. I had a penis in my mouth, I don’t know how and he shoved his penis in my mouth.” [124] — I was sitting “Q. Were the lights on at the time? A. I don’t know. Q. You couldn’t tell if it was bright or dark in the room? A. It wasn’t in terms of my memory of that event, I don’t remember all the specifics of whether the lights were on or how he took off his pants that night.” — [125] “A. He was pushing the back of my head onto his penis so, he was moving his hand. Q. Any other movement? A. I don’t know. Q. How long was it before he pushed you onto the bed? A. Pushed me, like I was sitting on the bed. So you mean like Q. Or push you back onto the bed? A. I don’t like I said, I don’t remember, I don’t recall how long that lasted but it was immediately after like, that he took his penis out of my mouth and he began having sex with me. — Q. Was Mr. Ururyar making any noise at this point? A. I don’t recall. Like I said, I completely dissociated. Q. Where did Mr. Ururyar push you onto the bed? A. Like, just like so I was lying down on my back. Q. Howdidhepushyou? V A. Like it wasn’t, like I don’t recall how the like, I remember the movement but I can’t describe like exactly where his hands went to push me back. Like, I was sitting and yeah, — Q. Was it one hand or two hands? A. I don’t recall. — — 68 — Q. You don’t recall if it was a open fist or a light tap or a violent push? A. Like I said, like I it was enough to push me back and for me to know what was next but it wasn’t anything that left any bruises on my upper body. — Q. You didn’t fight back in any way, right? A. No. Q. Did he hold you down? A. Well, he was on top of me and he’s obviously heavier and stronger than I am So, I, like I said, I just complied because, because what else was I going to do? Q. But he I understand that Mr. Ururyar is bigger than you, but did he specifically take his hand and hold you down in any way? — A. He was on top of me.” [126] “A. You want to know where his hands are? I don’t know. Q. Was Mr. Ururyar kneeling on the bed at all? A. I don’t know. Q. How long did the sexual intercourse last?. A. I don’t know. Q. You said that he don’t know? —- do you recall that he did ejaculate or you A. I don’t know. Q. Were there any other positions that you had sex in? A. No. Q. So, just where Mr. Ururyar was lying on top of you? A. Yes. Q. Were your feet dangling over the edge of the bed? A. No. — 69 — Q. So, at some point do you move up further on the bed since you were sitting on the bed when he you were performing fellatio? — A. Yeah, I guess it must have been some sort of movement. I don’t know. I, yeah. Q. Okay. But all Mr. Ururyar did was push you back onto the bed, right? AYes Q. So, you would have moved up yourself, so your feet were no longer touching the ground, right? A. I don’t know.” [127] “Q. Is this the type of thing that you would talk about with your therapist? A. Yeah. Like I was going to a sexual assault therapist at Women’s College Hospital, so yes. Q. Is it the type of—- I don’t want to know what the conversations are that you had with your therapist but, is the type of thing that you would provide detail about the specific assault? A. Not in a trajectory of like a timeline in which you’re presenting but, bits and pieces depending on the day I was I’m continuing going on a weekly basis. And every day or every time I can be triggered by different things that trigger different memories, whatever, and we’ll focus on whatever I decide that day. — Q. Of course, over the last year, thinking about this, this occurrence, you’re trying to figure out what really happened, right? A. No, I’m confident in knowing what happened. It’s more working through my own self-blame for, like you said, knowing that this person was verbally aggressive, angry and abusive and I continued to spend time with this person and trying to make sense of my choices. Q. Trying to figure out if you did consent to sex, right? A. No, I’ve been very clear from day one that I did not consent. I know and I’ve admitted that I didn’t explicitly say no but I know I did not I was not an active participant in the sexual assault. — — 70 — Q. Now, I appreciate that you do have the text messages that you sent your friend in the morning, but what you did tell the police is that you weren’t sure if you consented, right? A. I, well, I was trying to paraphrase the text messages and that’s the one that stood out in my mind. So, I apologize that I couldn’t recall verbatim the text I sent immediately after I woke up after being raped. Q. Well, it was your choice to paraphrase and specifically say I wasn’t sure if I consented to sex, right? A. And on multiple occasions I offered to present the text messages to Detective Chuck Barry and he didn’t take them. I present and I’ve said on numerous occasions that I have text messages and nobody has wanted them. So, I could have presented them, yes but it wasn’t because I was withholding them. I offered them up.” — “Q. I’m not suggesting that you were withholding the text messages. I’m, [128] and I appreciate that you brought them today but what I’m suggesting is that in your statement to the police, what you said to them was that you weren’t sure if you consented to sex, right? A. Can I — can you reread the statement, please? Q. Of course. MS. BRISTOW: And so, it’ll be on page 18, that I’m looking at. It’s a long interview. To be fair, we can read the whole paragraph. Q. So, it starts at the bottom of page 17, and Detective Barry says: “Okay, so what happened in the morning?” And your response: “In the morning, I remember I woke up because like, I, I, I could feel him masturbating and I’m like, like fuck. Like don’t, like I didn’t know he would do that. I didn’t know, like I didn’t have a good time. Like, I didn’t enjoy that. I went to sleep crying, like why. And then he noticed that I was awake and he looked at me and then he took my hand and pushed me into the penis ...“ onto the penis and I just, that’s when I said ‘no, I’m not Or: doing this.” “... — 71 — “I felt like I had, like when I was really drunk before, I felt like I had no control over my body. Like I just, like, felt like, like I would just like, I couldn’t I don’t even know what the right word is. Like I just, I felt like I had no power, like to move. Like I could just lie there and that’s all I could do with that moment. And I’m like no, I’m sober, I can get up. I can leave now because it’s daylight. I can go home.” — So I just said now .. .“ - “And it’s supposed to be no. I’m leaving or I’m ready to leave there. I was leaving and I talk I didn’t say anything to him. He didn’t say anything to me which, like I don’t, I don’t know and I just got up and I left and I took the TTC home. “... -- And I’m like, I didn’t really, I guess 1 didn’t really, I didn’t, gosh, I don’t know if it’s denial or what. I told my friend, she was here, and I just was like, I don’t know why, I think I have I don’t think I consented to sex last night and, and, and I didn’t really like, I didn’t. — It’s not that I didn’t think it was, you know, I just didn’t know what, I just didn’t know what to make of it and like I say, I still don’t.” And you sigh. Right? Did I read that right? A Yeah, that’s what I said to the police Q. Okay. I’m going to suggest to you that the reason why you. said that to .the. police, given that you’ve already told them that you, or you advised Detective Barry that you had the text messages, the reason why you said you weren’t sure if you consented to sex is because you weren’t in fact sure whether or not you had consented to sex? Correct? A. Well, I was just giving a synopsis of the conversation I had with my friend and she was there with me at the police station, so I figured they could potentially speak to her if they wanted to know exactly what I said and I had the text messages. So, I was, yeah, it was just a brief synopsis of my conversation with her, but I am, like I said in the text messages, it before that, it was this not, it was this like in trying to replay the events of that night to try and identify what I could have possibly done to even suggested that there would be sex occurring between the — — 72 — two of us, given the conversation I had with him, given that he had indicated he was sick and he was tired and then his anger.” Ms. Gray had spent the night a couple of times at his place. There was a [129] couch in Mr. Ururyar’s kitchen. The couch is in the middle of the kitchen and as his place was really small, they hung out in his room. [130] “Q. Okay. Now, after Mr. Ururyar raped you, you just went to bed in his bedroom, right? A. Yeah,l—yeah. Q. Okay. And didn’t make any attempt to move to the couch in the kitchen, right? A. I made no attempt to move to the kitchen. Q. I’m going to suggest that you wanted to sleep in his bed that evening, right? A. I would disagree with that statement. Q. I’m going to suggest that the reason why you wanted to sleep in his bed is because you got exactly what you wanted, your hot sex? A. Sorry, no. No, I did not get any hot sex that night. Q. That’s what you had intended to get at the beginning of the night, correct? A. At 7:00, it was an idea that I presented that was turned down and, so, I slept there under the impression that I was crashing somewhere safe. Q. Well, and you said that Mr. Ururyar had advised you that he was too tired and sick to have sex, right? A. That’s correct, so I was under the impression that we were not having sex that night.” [131] “Q. And, so, I’m going to suggest to you that just because Mr. Ururyar said that he was tired and sick, you knew that there was a possibility that he might change his mind, right? A. Yeah, that’s always a possibility, I suppose. — 73 — Q. Okay. So, originally he said no to your hot sex comment because he was tired and sick, right? A. That’s correct. Q. I’m going to suggest to you that he ended up changing his mind and expressed that to you later on in the evening, right? A. When later on are you suggesting this? Q. When you were back at his apartment? A. That’s incorrect. Q. Now, you said that you didn’t make any attempt to move to the couch in Mr. Ururyar’s apartment. You also didn’t make any attempt to leave his apartment after he had fallen asleep, correct? A. After I fell asleep? Q. He had fallen, Mr. Ururyar had fallen asleep? A. I don’t remember when he fell asleep. Like I said, I was in the fetal position, just trying to make sense of everything, crying and I passed out and it was late, three or four in the morning, it was extremely cold out, I spent all my money and I, yes, as I articulated before, I could have moved to the couch but I didn’t. Q. Despite you not having any money, like I said, there’s still people that you could have called? Correct? A. Yeah, I could have called somebody. Q. Could have called 911? A. I could have, yes. Q. But you didn’t? A. You’re right, I didn’t. Q. You just laid in bed all night next to the person who violently raped you? A. Yes, and that’s a very common experience for women.” — 74 — [132] “A. Detective Chuck Barry was very adamant that I implied my consent when I drank alcohol and went to his apartment and he told me that charges might not be laid because I implied my consent because of my alcohol intake.” Q And was that during your videotaped statement? A. It was immediately after the video statement and he called me a week after I did the statement on a Friday night while the charges were still pending and he told me the Crown attorneys weren’t sure if charges were going to be laid because I, they said I implied my consent. And I challenged him and said that’s actually not a legal defence. And then he hung up the phone and said he would get back to me. And then he emailed me and said that charges had, in fact been laid and that was my experience with the Toronto Police in reporting. So, as you can imagine, this hasn’t been a great experience for me.” [133] “Q. Sure. And so, I’m looking at the first day, February 1st, 2016 and it’s in your in-chief on page 79, just at the bottom. MS. BRISTOW: And, if I could approach? Q. You write, or say: “I missed one other piece. Like I said, ‘cause I was drinking a lot, I asked Mr. Ururyar if I could spend the night over at his place and like, I said and then he said that he was sick, so 1 could sleep over but he wouldn’t have sex with me which I thought was a totally weird thing to say but I kind of just wanted somewhere safe to sleep so I said, ‘okay’. -- And then I remember Ijust went, like it didn’t really like phase me, I just thought it was kind of an odd thing for him to say but I just went back...” I went and sat back down and didn’t really talk to him Sorry: much for the rest of the night. And then when the lights came on, because I had made plans to crash over at his place....” “... Is that — did I read that correctly? A. Yes. Q. Okay. And you testified under oath on February 1st, as well, to what I just read, correct? Ururyar said: “Okay, you can sleep over, I’m sick but I’m not — 75 — going to have sex with you”, correct? A. Yes.” “Q. Okay. And you’d agree with me that it wasn’t actually out of the blue because you had texted him earlier saying you wanted to have sex with him, correct? A. Yeah, and then he said he didn’t want to and, so, yeah. Q. And, in fact, he said “you can sleep over but I don’t want to have sex with you tonight”, so it wasn’t really odd that he said that, it was somewhat in response to your asking him to come over or to go over and have sex with him, correct 9 A. I guess. I don’t know, it was much it was hours later and we had already had that other conversation so I guess, I don’t know—I can’t remember exactly-what I thought at that moment. — Q. Now, I’m going to suggest to you that you were thinking about having a threesome with Mr. Ururyar on January 30th 31st, sorry, 2015, correct? — A. No.” [134] “Q. So, I’m going to suggest to you that you thought Lacey would be into having a threesome that night, correct? MS. GRAY: A. No. Q. And I’m going to suggest to you that you even told your friend Gazem that you wanted to have a threesome with Mr. Ururyar and Lacey that night, correct? A. I’ve never spoken with Gazem about my sex life, ah, outside of in direct relation to things that happened between myself and him and then her and him, so no. Q. Now, you’d agree or you agreed that the relationship between yourself and Mr. Ururyar was somewhat casual, correct? A. Yes. Q. Okay. And I’m going to suggest that back at Mr. Ururyar’s apartment on the night in question, while in bed you leaned in to kiss him, correct? —76— A. No. THE COURT: Sorry? MS. BRISTOW: Q. You leaned in to kiss him? MS. GRAY: A. No. Q. And Mr. Ururyar told you he didn’t think it was a good idea to sleep together, correct? A. He never said that. Q. At that point, I’m going to suggest that you had a conversation with Mr. Ururyar at his house about ending the relationship between the two of you, correct? A. There was no conversation.” [135] “Q. And, so, when I asked you about Mr. Ururyar having a conversation with you about ending the relationship, I’m going to suggest that this occurred prior to you having sex but while you were sitting on the bed? MS. GRAY: A. Like I said, it wasn’t a conversation and there was no dialogue. Q. And, so, again, prior to having sex with Mr. Ururyar, I’m going to suggest that Mr. Ururyar tried to break things off and it caused you to cry, correct? A. No. Q. And it caused you to cry, I’m going to suggest, is because casual just wasn’t enough for you, correct? A. I have been very clear that I never expected a relationship with him from the beginning, so, no. Q. And I’m going to suggest that you were crying at Mr. Ururyar’s apartment while in the bed and he began to try to console you, correct? A. I was crying because he raped me. — 77 — Q. And this is, I’m going to suggest, prior to you having sex with Mr. Ururyar that he was trying to console you and he was rubbing your back while you were crying? A. He — I was crying after he rapes me. Q. And Mr. Ururyar, while he was consoling you, you both leaned in to kiss, right? A. We didn’t kiss once that evening. Q; And I’m going to suggest that as you’re both kissing, Mr. Ururyar advises you this has to be the last time, correct? A. He said: “This is the last time I’m ever going to fuck you”, and then he rapes me.” [136] “Q. And I suggest that when Mr. Ururyar told you that this was going to be the last time, that you didn’t believe that he was trying to mislead you in any way, correct? A. What do you mean? Q. Mislead you in thinking that he wanted to continue a relationship with you? A. Well, I made the decision not to continue a relationship with him after that There was no conversation, aside from that thing he said before he rapes me and then I am the one that never spoke to him again, despite as you demonstrated that he texted me to apologize after the fact. And I never had further contact with him, so if anything, I ended the relationship by not communicating with him. Q And I’ll suggest that you wanted to have sex with Mr Ururyar one last time, correct? A. I reject that statement. Q. I’m going to suggest that you didn’t think Mr. Ururyar was taking advantage of you, did you? A. Sorry, what? Q. You didn’t think that Mr. Ururyar was taking advantage of you, did you? A. At that moment or overall? — 78 — Q. At that moment? A. Well, I just articulated that I would make the assumption that being raped is taking advantage of somebody’s body and state of mind. Yes, I would argue that he did take advantage of me. Q. I suggest that you were the one that pulled Mr. Ururyar’s pants down, correct? A. I reject that statement. Q. And that you gave him oral sex consensually, correct? A. Not consensual. Q. And I’ll suggest that in the morning, you changed your mind about being okay with that being the last time that you’re having sex with Mr. Ururyar, correct? You have to. A. No. Q. And I’m going tO suggest you felt embarrassed, correct? A. Embarrassed about? Q. About the fact that Mr. Ururyar was rejecting you? A. Urn, no, I didn’t feel embarrassed about that. I felt more embarrassed and shame that, that somebody would do that to me but I wasn’t upset because I felt rejected by him. Q. You agree that he did reject you, correct? A. Well, I don’t know what you mean, how he rejected me. Yeah, he told me: “This is the last time I’m going to fuck you.” Sure, if we want to call that rejection, let’s call that rejection. Q. Okay, so he told you that he was maintaining his relationship with his girlfriend and didn’t want to be with you anymore, correct? A. That’s not how I remember it. Q. How do you remember it? — 79 — A. Well, like I’ve already articulated, days before he asked me if we could continue our relationship as a secret and I don’t never said yes, ‘cause I wasn’t interested in that. — And then furthermore, he was really fixated on this idea that she was going to find out, that I’ve already talked about which I thought was surprising because it had never been an issue up until that point. So, it wasn’t a matter of I want to be with my girlfriend and not you, that wasn’t what it was. It was my girlfriend’s going to find out. So, no, I think those are two different things. Q. And I’m going to suggest to you that after that evening, you held a grudge against Mr. Ururyar, correct? A. For obvious reasons, yes. - Q. And this was going to be perfect for your agenda, correct? A. Agenda? Q. Your agenda to show how the criminal justice system doesn’t work for sexual assault victims, correct? A. Why would I waste two years of my life demonstrating that? No, I reject that.” [137] “Q. And you testified that in the morning, Mr. Ururyar tried to force you to give him oral sex again, correct? A. That’s correct. Q. And that time, you had the courage and strength to say no, correct? A. I was also sober and it was daytime so I was able to get home. Q. Okay. And you also had the courage and strength to say no at that point, right? A. Yes, Q. Now, it’s obviously still pretty traumatizing that this man who raped you just tries to force you to give him oral sex again, correct? — 80 — A. Yeah, I was mad. Q. And that’s something that you’re certainly never going to forget, correct? A. What do you mean? Like Q. You’re not going to forget this traumatizing experience. A. Well, I guess you don’t understand how trauma works because that’s not what happens. Q. Well, I’m asking you if you’re going to forget that traumatizing experience? A. Well, I’m not going to forget the experience of being raped but I can’t remember exact details because as I’m moving forward in I’m kind of putting it my therapy process. I’m slowly,, like it’s behinds (sic) me. So, I can’t, it’s been so long, I haven’t been thinking about it. —- So, I don’t know what you want me to say. Yeah, I remember that happening to me but ‘I don’t remember every exact detail of how it happened. Q. Do you remember when you first noticed that Mr. Ururyar was masturbating? A. I didn’t I noticed it because I felt it next to me. Q. And did you turn your head to see? A. And then when I opened my eyes and he saw my eyes were awake, he started pushing my head onto his penis. Q. Did you turn your head to see? A. Yeah, I don’t remember. I think, I must have THE COURT: I’m sorry, is this in the morning? MS. BRISTOW: Yes.” [138] “Q. How was Mr. Ururyar laying? A. He was laying on his back. Q. Okay. And, so, was his head about the same point as your head was? —81— A. I don’t remember. I don’t think so. I think well, I don’t know actually. I’m not even going to answer that. I don’t know. —- Q. Okay. So you don’t know if he was moved up, sitting up on the bed? A. I don’t know. Q. You know if the covers were pulled down all the way? A. I don’t know. Q. Do you know if they were pulled down part way? A. I don’t know. Q. Do you know if Mr. Ururyar’s pants were completely off or if they were still up? - A. He wasn’t wearing pants because I remember seeing them on the floor when .1 left. Q. Do you know what hand Mr. Ururyar was using? A. To masturbate? No. Q. Do you know what hand he used to force his head on your penis? A. It’s the one that he wasn’t touching himself with. I don’t know. Q. So, you don’t have any recollection if it was the right hand or left hand? A. I don’t know. Q. Sorry, that was ‘1 don’t know”? A. I don’t know. Q. How did you get to manoeuver out of the situation? A. How did I move out of the situation? Q. Manoeuver out of the situation? A. I said “No”, and then [got up and left. Q. Well, how did you get up? Did you have to climb over him? — 82 — A. No, like I said before, I got off at the end of the bed. Q. Well, where were your clothes? A. On the floor. Q. Where on the floor? A. I don’t know. Q. Were they at the end of the bed, at the top of the bed? A. I don’t know. Q. Scattered around the room? A. I don’t know. Q. How long did it take you to get dressed? A. A couple minutes. 0. What were you or sorry, did you see what Mr. Ururyar was doing while you were getting dressed? —- A. Nothing, he was just laying there. Q. Was it (sic) still masturbating? A. I don’t remember. Q. Mr. Ururyar, while you were getting dressed, I’m going to suggest that he asked you if everything was okay? A. He’s never asked me if things were okay. Q. He offered correct? — said, “Do you want to stay and have breakfast?”, A. No. Q. Okay. And you told Mr. Ururyar that you felt used, correct? A. No, the last communication I had with him was when I texted him and said: “Last night was fucked”, and he responded: “Okay.” And we never spoke again. We did not speak that morning. We didn’t speak after he raped me. — 83 — We did not speak at his apartment aside from me sitting on the bed and him raising his voice at me. There were no there was no conversation, aside from that text message, after he raped me. And then I said “No”, and then I left. That was like the only few things I said to him.” -- [139J “Q. Okay. And similarly, I’m going to suggest that you’d be relieved if Mr. Ururyar was acquitted, correct? A. I won’t be unraped, so I don’t think it’s really relevant to me. I did everything I was supposed to but what he’s done has already been done. So, I can’t say whether I’ll be relieved. I won’t be happy, I can tell you that ‘cause I still had to live through all this. So; I don’t know, maybe you could.rephrase your question. Q. Well, I’m going to suggest that similar to your opinion on Mr. Ghomeshi’s acquittal, that you’d be relieved if Mr. Ururyar was acquitted because it would help to support your position that the criminal justice system doesn’t work, correct? A. Well, I think we need to contextualize that statement by every single legal professional I’ve talked to up until this point, including my therapist at Women’s College Hospital, have told me that the likelihood of any “justice” is highly unlikely. So, if I keep being told that by people who are working within the system, I can understand why I would start to believe that to be true, yeah. Q. So, you expect that Mr. Ururyar is going to be acquitted, correct? A. I can’t say what I expect. My case isn’t the same as this case their cases. It’s not the same matter so I can’t say what I’m expecting or not expecting. That was for one particular incident of historical sexual violence and I articulated that and that wasn’t in relation to my own experience. That was in relation to a specific case. — Q. Now, I’m going to suggest that you don’t expect that Mr. Ururyar is going to be found guilty and that you know that all the evidence of the sexual assault comes from you, correct? A. I am very well aware that I am a large part of evidence.” [140] “Q. I’m going to suggest that you’ve been lying about what happened that night and that’s why you think that it’s possible Mr. Ururyar may be acquitted, correct? —84— A. I don’t lie. No. Q. And I’m going to suggest that the real reason why you think Mr. Ururyar might be acquitted is because you had consensual sex with him on January 31st, 2015? Correct? A. No. Q. And, at no point did Mr. Ururyar force your head onto his penis, correct? A. That’s incorrect. Q. And, at no point did Mr. Ururyar force you to have intercourse 9 with him, correct A Incorrect Q That sex was a hundred percent mutual on January 31st, 2015, correct? A. Incorrect.” Re-Examination by Ms. Loift “I just want to clarify your memory and whether or not, in particular whether [141] or not you can say exactly how much you had to drink. But what is your actual memory of what you had to drink that evening as clear or unclear as you may express it? A. Yeah, I, like, the specifics. -- six or seven beers, I, yeah. I can’t remember Q. But, and so, are you able to say exactly? A. I can’t say exactly how much alcohol I consumed. Q. And--okay. MS. LOFFT: Could 1 see Exhibit Ic), please. Q. Ms. Gray, you did have an opportunity to look at what’s been marked as Exhibit 1-3—Ic) at this trial, which appears to be a text message exchange between you and the accused, is that right? A. Yes. — 85 — Q. And you also said that you had deleted the chat history from your own phone, is that right? A. Yeah. Q. So, you see these messages that start on Monday, January the 19th at 10:44, is that right? A. Yes. do you believe that there were messages Q. Right. And I before that, like from the 16th until the 19th? — A. There were no messages, he had he didn’t have my phone number up until that initial message ‘cause we had just met that weekend. — Q. Okay. So, do you think that this chat history essentially is all of the messages exchanged between yàu and Mr. Ururyar? A. Yeah, I’m confident in that statement. Q. Okay. That’s now, in looking at because this, looking at the last page, so this I want to clarify as well too, because you were asked some questions about the message that you sent to Mr. Ururyar after these events, correct? — — A. That’s correct. that the Q. Okay. And I see on this last page that there’s you messages from are in, they’re kind of a grey colour, right? —- A. Yeah. Q. And then the message from him are on the right hand side and they are in blue? A. That’s correct. Q. And that’s the way the messages are set up? Like, this came from his phone, right? A. Yeah. Q. Okay. A. And we both had I-message on I-Phone and then I changed my phone number which is why the last one’s in green ‘cause I — 86 — Q. This is what iwant to A. Yeah.” MS. LOFFT: “Q. Okay. You were asked some questions by Ms. Bristow about the accused’s clothing back at the apartment. It was suggested to you a number of times that you might have taken his clothes off because you didn’t remember how his clothes came off. And if I could clarify please, whether or not, and I appreciate your answer was you don’t remember how his clothes came off, but do you have a recollection of whether or not you personally were involved in removing them? A. I, to the best of my knowledge, I, and my experience, I wasn’t an active participant in anything that occurred from me sitting on the bed until I left the next day. So, I don’t remember how his clothes came off, at what point they came off. I can say with some level of certainty I didn’t participate in that, but I don’t have the recollection to make that a linear kind of time line. Q. Okay. You were asked a number of questions about the tone of his voice from the walk home, from outside Honest Eds down south to the College near College where this took place. —- A. Yeah. Q. And to, and there was a discussion of whether or not it was and I would like you to clarify aggressive versus yelling or please, whether or not that tone of voice or the basic tenor of his, urn, comment or statements, whether it differed from the time it first became bad to you continuing through the walk and into the events in the apartment or was it the same or was there an ebb and flow to it? — A: Urn, I’d say that it progressively got worse as we continued walking and it was a very aggressive tone and it was really, it was really scary to me because I don’t know how to make sense of it. But it was like I no longer recognized that person or the tone of their voice or what they were saying and it was like a really, just totally odd. — 87 — So it did progressively get more aggressive and forceful, not necessarily like yelling and screaming, but the aggression and tone was present and getting more forceful as the walk progressed.” “A. Yeah, I was offered Plan B at the women’s [142] Hospital nurse and that is to, in case you’re pregnant, it. — by Women’s College Q. So, it’s a post-activity contraception, is that fair? A. Yeah, emergency càntraception. Q. Right, emergency contraception. And just this morning you were asked a number of questions about this comment of the accused, about it being the last time. And to clarify, please, as best as you can remember it, appreciating that your evidence is that it was before the sexual activity, is that correct? A. Yeah, right before he shoved his penis in my mouth. Q. And what is your best memory of what the words are, or please tell us, please, if you don’t remember the actual words? A. It was: “This is the last time I’m going to fuck you and you’re going to like it”, something to that affect. Q. Okay. And you were also asked it was suggested to you this morning that you were embarrassed the next morning when you woke up and you began to describe, to clarify your feelings really. And I’m going to ask you please, to expand on that please. — A. How I was feeling in the morning? Q. Yes. A. Urn, at first I was really, really angry not only because I know he saw me fall asleep crying, he knew I was crying and then to wake up to have him masturbating next to me and then to just assume, without having any conversation about or anything about what had happened, I was really upset. I was, And that’s when I texted my friend and I just needed things and really about just really, good not yeah, yeah, feeling really confused which is why I texted him for I don’t know why, in the moment I thought maybe there was a slight chance he I missed he was going to apologize to me. -- — -- -- — 88 — I don’t know why I decided to text him that one last time. I just thought there must be something I’m missing here, and then when he responded just really cold, like he didn’t care, Ijust felt I kind of went into depression for a few days and then just like yeah, just not a good time for me. -- Q. Okay. Were you ever confused about whether or not you consented to that sexual activity? A. There was no confusion. I didn’t consent. I think the only thing that I was just really a lot of self-blame because I didn’t clearly articulate no, so I think that was it, but I knew that that wasn’t a consensual activity, It was just that, along with all the shock of the events that took place that maybe I felt that I must have done something and that was kind of where the confusion stemmed from, not whether or not I consented.” Cross-Examination by Ms. Lofft “Q. Um, Mr. Ururyar, how many other girls were you involved with at the [1431 same time? A. Not -- just my girlfriend and Mandi. Q. So when you say you that your relationship with Alison was an open relationship, what did that, ah, what did that mean in the course of the whole relationship? — A. It meant that we were free to see other people while we were living indifferent cities.” [144] “Q. Urn, and but other than Mandi, how many other girls were there? A. There were four others. Q. And that was from the period of time that you arrived in Toronto at York University, is that right? A. Yes, September2013. Q. Okay. And your relationship with Alison began, I thought you said around 2012 or 2013? A. No, that’s when it became an open relationship. We had already been together for two and a half years at that point. —89— Q. Okay. Urn, and lgatherfromwhatyou’vesaidthatthroughout the time that you were with Mandi, you made it clear to her that you had sort of your girlfriends in Montreal, is that right? A. Yes, I did. Q. And did you also make it, ah, known to your friends and colleagues that you had a girlfriend in Montreal? A. Yes, and I also made it known to at least some of them that it was an open relationship. Q. Isn’t it true that in fact, you didn’t want your girlfriend necessarily to know about your relationship with Mandi Gray? A. No, I did not mind if she knew.” [1451 “Q. And the gathering, for instance, that happened on the night beforeyou went back to, ah, your place on January 31st, was a mixture of your colleagues and Mandi’s colleagues, am I right? A. At Victory Café, yes, it was. Q. And then later on at Paupers, isn’t that right? A. No, at Paupers, I believe it was just Lacey that was Mandi’ colleague. Everyone else was pretty much from the Political Science Department, my Department.” [146] “Q. So you’re sitting next to her and she put, you’re saying that she put her hand on your leg, is that right? A. That’s right. Q. In a context of colleagues geffing together for drinks, right? A. Yeah. Q. Right? Where there’s nothing, there’s o reason why you would be concerned about your colleagues finding out that you had a sexual relationship with Mandi Gray or not, right? A. That’s right.” [147] “Q. Well, tell us what it was. You said it -you said later at Paupers it was closer to your groin area, but at Victory Café, it was just on your leg? A. Well, my thigh, my upper thigh, yeah. — 90 — Q. Your upper thigh? A. Yeah. Q. Airight, so your upper thigh was attacked in what way, please? A. I think this line of questioning is inappropriate. Q. You see the gentleman seated to your right? A. Yes. Q. He’s the judge. Do you understand that? A. I understand that, yes, but if the tables were turned and someohe had told you thati was groping them, you wouldn’t be pursuing this sort of questioning.” [148] “Q. So, when you say it was more than that, you’ve used the pejorative word groping, please explain what you mean by that word and what exactly you’re talking about? MR. URURYAR: A. As far as I know groping is defined as touching someone without their consent and you know, in an area that is close enough to I guess the sexual area. Q. And you’re talking about your thigh? A. Yes.” “A. It wasn’t longer than ten seconds, but it was more than a couple [149] seconds. Q. And, urn, did you and did you lean over and whisper to her that she needed to stop that? — A. That’s right. Q. And even though, urn, so, at this point, in your mind, I’m going to suggest to you that what you were thinking in terms of Mandi was that the entire evening would likely culminate in sexual activity? Isn’t that right? -- A. Yes.” [150] “Q. Was there so there was something about your relationship with her that you didn’t want the rest of the world to see, is that fair? — — 91 — A. No, it’s just my practice was to not show displays of affection.” [151] — not to have public “Q. What— can you tell us exactly what you said? A. I simply said: “I — please don’t touch me.” Q. Anything else? A. As far as I can remember, that was it. Q. And what did she say? A. Urn, I think she just said “Okay” and she moved her hand. Q, Right. Arid, ah, and were you sifting next to each other for the entire time at the Victory Café? A. Ah, yeah. For the most part, yes. Q. Okay. Well, for the most part and the entire time are two different things. A. Yes. For the most part, not the entire time. Q. So, at what point were you not sitting next to Mandi at the Victory Café? A. When I went to order my drink, urn, and then maybe, I think a little bit later I went to talk to someone else for a little bit. But, for the most part, I was seated at my I was at my seat which was right next to Mandi’s. — Q. And isn’t it true that you were actually talking to other people, other than Mandi at the Victory Café? A. Yeah, well, they were also seated near me too, so.” [152] “Q. Alright. So maybe we’re not understanding each other. I’m suggesting to you that you can’t tell us exactly how much she had to drink?Do you agree? A. That is correct, yes.” [153] “Q. Okay. So, urn, and you recall pretty clearly receiving a text message from Mandi at 7:55 that night, saying: “I’m at Victory, come drink and then we can have hot sex”, right? A. That’s right. — 92 — Q. I’m suggesting to you that from that moment, that was your plan? A. Sorry? Q. Once you received that text, you figured that was your plan for the evening? A. Ah, yeah, I thought that’s, that was our plan, yes. Q. Okay. Pardon me? A. Yes, I thought that was our plan. Q. Alright. I’m suggesting to you that it was actually like given that you don’t know what was in Mandi’s mind at that point, I’m suggesting to you that that was your plan, though, from 7:55 on? -- A. I don’t see how it could be just my plan when she’s the one proposing that we do that. Q. I’m asking about you, though? I’m suggesting to you that it was your plan starting from 7:55 and receiving that text that you’re going to have hot• sex with Mandi whatever, no matter what happened? A. No, not no matter what happened. If we were both feeling up to it, yes. I wasn’t sure that I was urn, which is why I didn’t give a completely affirmative and absolute answer. Urn, I just simply said: “Okay, I’ll come to the bar.” [1541 “Q. Well, you had to be kind of cajoled, right? Don’t you agree? A. I didn’t have to be cajoled, but I was, I was enticed by her message, yes.” MR. URURYAR: Her message to come to the bar and to then go have sex. and in fact, you responded at MS. LOFFT: Q. So, and when 8:26: “I’m going to come in a bit.” Right? — A. That’s right.” [155] “Q. Okay. And then you recall getting a text from Mandi at 9:07? MS. LOFFT: And I’m looking at what’s been marked as Exhibit I c). — 93 — A. Yes, she says: “Are you coming?” Q. So you — it was after nine by the time you got there, right? A. I received that message as soon as I walked into the door of the bar. Q. Ah, do you know what time it was that you left for Paupers? A. I believe it was around 10:15, 10:30. Q. So, it sounds like you spent most of the evening at Paupers? A. That’s right. Q. Urn, and you said it took you fifteen to twenty minute to walk to Paupers from the Victory Café? A. Around that, yeah. Yeah, around twenty minutes, give or take five. Q. Around twenty minutes, even though it’s a distance of about maybe two hundred metres, do you agree? A. No, it’s Q. Three hundred?” [156] “Q. Okay. So, did you talk about your distressing, ah, groping event with Mandi on the way from Victory Café to Paupers? A. No. Q. Urn, did you she mention it to you? A. No. Q. Okay. And was it repeated after the initial few seconds that her hand was on your leg? A. At Paupers, yes. Q. No, I mean, was it repeated before you got to Paupers? A.No. Q. Okay, so and, at that point, was it still in your mind that the evening was going to end in hot sex? — 94 — A. Ah, I thought it might. I wasn’t sure. Q. Okay. Urn, is it possible that you said to Mandi that, ah, when she suggested staying over at your place that you said: “Yeah, but I’m not going to be we’re not going to be having sex”? — A. No, I didn’t say that. Q. ‘Cause what is in your mind is that you’re looking forward to hot sex at the end of the night, is that right? A. No, if— it was just her saying that she wanted to come over and I said yeah. V and of course, it was tied to the earlier text Q And are you message that was still operating in your mind as the plan, isn’t that right? — A. Not directly, I don’t think. I can’t remember exactly what I was thinking at that moment, but, yeah, I don’t know. Q. Was there some other reason why you didn’t want anyone else to see Mandi touching your leg at Victory Café? V A. I just didn’t think that that’s the kind of behaviour that I wanted to exhibit in front of my friends and colleagues. with putting her Q. Your the woman that you’re sleeping hand on your leg, that’s the behaviour you’re talking about right? — A. Yes. Q. Okay. Urn, did you hold hands on the way from Victory Café to Paupers? A. I don’t think so. We were walking right next to each other, but I don’t think we were holding hands. Q. Because you did say that later when you left Paupers, you, ah, you had your arms around each other, I think? Is that right? A. I believe we did, yes. Q. And then you said you walked arm in arm from, ah, Bathurst and Bloor down to where your place was, near Bathurst and College, is that right? A. Yes. — 95 — Q. Urn, well, isn’t that the same kind of, ah, manifestation of physical affection as the leg touching? A. No, I would say it’s quite different. Q. lnwhatway? V V A. Well, it’s non-sexual. Q. Ah, I see, but A. I could walk, I could walk with my arm around my friend who I’m not sleeping with.” [157] “Q. And what— and your plan was still, despite being annoyed with Mandi I think for the leg touch, right? Is that your evidence? A. I wasn’t really annoyed after the first time. I was a bit annoyed after the second time. Q. Okay, so, but you later came to sort of deliver that as the reason for breaking up with her, isn’t that right? A. Yeah, that was one of the reasons, yes. Q. But isn’t that the reason that you say that you gave her? V A. I didn’t think we were compatible in terms of interests.” [158] “Q. Well, it made you go out to the bar? You described it that way, you said you were enticed by it? V Yeah, it was one, I would say the major reason, the deciding factor I went. But I had been invited earlier too, by other people.” [159] “Q. Airight. And at what point did the second leg incident happen? A. It was very close to the beginning of the evening at Paupers. Q. Airight. And you said that you were sitting next to Mandi? A. Yes. Q. And who else was sitting at the table? A. Ah, Paul, Gazem, Gregg and maybe Lacey, I’m not sure. Maybe one other person, Graham. Yeah, Graham was sitting there.” V V — 96 — LA. Well, ah, not even that. At Victory, it was I guess pretty even, urn, [160] maybe slightly weighted for Poly/Sci, but at Paupers, it was certainly way more Poly/Sci than Sociology. Q Okay And were there people? —- were these other people also union A. Well, yeah, pretty much all the PhD students are part of the union because we’re all employed as teaching assistants. Q.. Yeah, but didn’t you have a role in the union? A. I was on the executive committee, yes.” [161] “Q. Alright. SO, the.Paupers incident then, at what point did this—-did the groping, as you call it, occur? A. I can’t give you an exact time but I think it was very close to when we first got there. Q. And you were seated at the table, is that right? A. At the booth, yes. Q. At the booth. And this happened under the table, is that right? A. Yes. can you tell us whether or not you Q. And as far as you see it? could people thought other — A. Urn, they probably couldn’t. table. It was well underneath the Q. They probably could or could not? A. They probably could not. Q. Okay. And, ah, again and you said that this one was closer to your groin area, is that right? — A. Yes. Q. And what did you do about it? A. Again, I justsimply asked her to stop. Q. And what happened? — 97 — A. She did. Q. Right. So, and yet you harboured some bad feelings obviously about that, urn, activity, isn’t that is that fair? — A. I was annoyed by it and yeah, it did stay in my mind but it wasn’t something that I had bad feelings about or malicious feelings about. Q. Well, I’m going to you—-okay, you were annoyed, but you don’t want to say angry, right? You weren’t angry? — A. I wasn’t angry about it, no. Q. Alright. And, in fact, I mean, did she not behave, even on your story, completely reasonably by stopping when you asked her to stop? A. Urn, I’d say the first time yes, but, ah, the secondtime, I mean if she’s going to if you ask someone to stop and but then they do it again a few minutes later, it’s not really stopping, is it?” —- [162] “Q. Airight. Did you ever have a one on one conversation with her throughout that entire evening, whether at the Victory Café or at Paupers? A. Yeah, one on one in the sense that we were talking to each other and it’s very loud at the bar, so there wasn’t anyone else really that could really hear what we were saying. Q Ah, and did you take that opportunity to say you know, I think your behaviour was so disrespectful, like trying to touch my leg in public?” [163] go. “A. No, I wásn’t.l was, I tried, Ijust, you know, tried to let it go, like I did let it It wasn’t something that I was harbouring.” [164] “Q. Okay. This conversation that you claim that you had with Gazem, where did that take place? About... A. That was Q. About the threesome? A. That was also when I was seated at the booth, yeah. Q. Seated at the booth with Mandi? 98 — A. No, she had, ah, moved friend Lacey at the bar. — — she was hanging out with her Q. So Mandi wasn’t there? A. Not at the time, no. Q. Okay. And who else was present? A. There were a few other people sifting in the booth. I think Paul and Gregg were still there. Q. And.... A. On the other side. Q. And tell us exactly what you say Gazem said to you? A. She came up to me and said: “Did you know that Mandi is planning a threesome with you and someone else?” Q. Okay. So, came up to you while you were seated in the booth? A. Yes. Q. Came up and sat down next to you? A. Yeah, I think she sat down. Q. Well, you think she did or she did? A. Well, I was sifting near the edge, so she may have been stranding but I, she may have been sitting, I’m not sure. Q. Airight. And, ah, what did you make any observations of whether or not she appeared to be under the influence of alcohol? -- A. She didn’t seem to be beyond any sort, you know, reasonable limit of influence. She seemed to be okay. Q. Airight and this must have have flabbergasted you? — this statement from her must A. Yeah, it was surprising. Q. And you must have immediately sort of, ah, investigated that to see if, if indeed that was true? A. No, I didn’t investigate it. — 99 — Q. So, what did you say to Gazem? A. Ah, I just said: ‘Oh, that’s interesting, I didn’t know that.” Q. And did Gazem tell you or did whom the plan was? A — what the plan was and with No, she didn’t specify Q Urn, well, are you just guessing then that it might have been Lacey? A Ah, no, I didn’t assume who it was Urn, I’d never guess that it was Lacey I thought it might be because that was really the only friend that Mandi had at the bar, it seemed like a really close friend anyways 9 Q Well, how did you know it wasn’t with another man A Well, we had talked earlier in our relationship about maybe having a threesome with another woman.” [165] “Q. Urn, okay. So, then did you get up and actually go ask Mandi about it? A. No, I didn’t. Q. Did you ask Lacey about it? A. No. Q. So, it was just sort of floated out there by Gazem as some kind of exciting thing to you? A. I didn’t really take it, ah, you know, for absolute truth, what Gazem said, but yeah, I would, the thought of a threesome did cross my mind after she said it to me. Q. And did it become in fact, more than crossing your mind, did it become a little bit prominent in your mind? A. No. Q. And wasn’t it exactly what was on your mind as you left the bar with, as it happened, Mandi and Lacey? A. It wasn’t prominently on my mind, no. — 100 — Q. Urn, and how well did you know Lacey? A. I’d just met her that evening.” [16] “Q. When Mandi asked to stay at your place overnight, that, I think you told us that was at the Victory Café, is that right? A. Yes. Q. And, urn, now is your evidence that you, that you told her that you might not be able to, or that you didn’t want to be intimate with her that night or your evidence is that didn’t happen? A. No, I didn’t say that at Victory Café. On the walk home after she said that she wanted to have sex, I said that I couldn’t promise anything because I wasn’t a hundred percent feeling physically up to it. Q. Even though one of the main reasons why you were out at all was because of that text message about hot sex as a prospect, isn’t that fair? A. That was a reason, yes. Q. And tell us again please, who else was with you when you left the Paupers? V A. Indigo and Gazem.” [167] “Q. Because you pretty much closed out Paupers, right? A. Yeah. I think the Shwarama place nearby might have been open late, urn, and there’s always McDonalds. Q. When Lacey got in that cab, I’m going to suggest to you that the prospect of the threesome that was in your mind, ah, evaporated? Is that true? A. Well, yeah, as when she got into the cab, yeah, the prospect of a threesome of course, was no longer was a prospect. Q. And I’m going to suggest to you at that point that you became, um, unhappy about that? A. No, I did not. 0. Indifferent? V 101 — A. Yeah, I would say indifferent. Q; And did you talk to Mandi at that point about like, ah, like Lacey’s gone home, I thought we were going to have a threesome, something like that? A. No, I just said it’s too bad she didn’t want to join us for a drink. Q. Alright, but that really wasn’t what you had in mind, was it? A. No, that’s but that is what I had in mind at the time when I invited her over.” — [168] “Q. So which is it, they both wanted to continuethe evening or you thought all three of you wanted to continue the evening? A. Ah, they were talking about it. I was sort of walking behind them and that’s when I thought, okay, I’ll invite Lacey as well. Q. Oh, I thought you were walking together with Mandi? A. Well, we were. I was walking right behind them.” “Q. And I’m going to suggest to you that you, urn, expressed your [1691 disappointment to Mandi on the walk home? A. Yeah, I did. V Q. But what you were unhappy about was the fact that Lacey wasn’t coming home with you and Mandi to have that threesome that you thought you were going to have? A. No, that’s not true. Q. So you were indifferent about that? A. Yeah, more or less. Q. Urn, and then when you got to your and I’m going to suggest to you that you were frustrated at least, do you disagree? — A. I disagree. Q. Okay. On the way home, you heard Ms. Gray talk about how you spoke to her and, urn, expressed displeasure with her, called her names, I’m going to suggest to you that you did do that? A. Notatall. V — 102 — Q. I’m going to suggest to you that at that point you had a very dim view of Mandi? A. No, I did not.” [170] “Q. And, urn, you’ve told us and we’ve heard that your apartment was, could be called like a flat in a house, is that A. Yeah.” [171] “Q. Okay. So, and was Phil in your program? A. No, he was not a university student. Q. He wasn’t a student. Did you ever socialize with him? A. A couple of times, yeah. Q. And by going out for drinks or dinner or parties? A. Yeah, we went out for drinks and dinner with my, with the roommate who lived there before, the one who introduced me to Phil, just for me to get to know Phil a bit better. Urn, and we went to the same birthday party once as well, and I think we had drinks maybe one other time, but I’m not sure. Q. Okay. And did you that apartment? — did your girlfriend come to visit you at A. Yeah, she had been a couple times. Q. And did Phil know your girlfriend? A. I think so. I think they had met, yeah. Q. And do you know whether there were times when she was at your apartment and you weren’t there and maybe Phil was? A. Maybe. Probably not though. Q. Okay. And when did you stop living with Phil? A. Ah, in April of 2015.” “Q. Mr. Ururyar, doyou recalltheargumentthatyou hadwith Mandi abouta [172] week before January 31st? A. I think you’re probably referring to the one where, ah, we were at her place, is that the one you’re talking about? 103 — — Q. When the when you were watching porn on the TV and said to her: “I don’t want to fuck you anyways”? — THE COURT: ldon’t want to? MS. LOFFT: “Fuck you anyways.” MR. URURYAR: A. No, I do not recall that. That is not what happened. Q. Did you ever say that to her in the course of an argument? A. Absolutely not. Q. And why do you say that with such vehemence? A. I’m hot saying it with vehemence, I’m saying it with to make it absolute. I never said anything like that to her during the course of our relationship. — Q. Well, did you say to her, ah: “This is the last time I’m ever going to fuck you”? A. No, I have never said that to her. Q. Do you recall the argument, an argument that you had with her when you were watching porn on TV or on a, it’s probably not a television but when you were watching filmed pornography? A. It was not an argument. We came over to my place. Q. Yes. A. We started to have sex. I failed to maintain an erection, I suggested we watch some porn to help me out. She said: “Okay”. I connected my laptop to my television. We tried again. Again, I failed to have sex with her and then she basically left without a word. Q. And are you and did the two of you, urn, not communicate positively with each other following that interaction? — V A. We didn’t communicate for a day, I believe and then two days later, I believe she texted me and apologized. — 104 — Q. Do you recall what date that was? A. I think January 27th. I could be off though. Q. Airight, I’m going to show you an exchange of text messages from Exhibit ic). And, Mr. Ururyar, you can look at that. A. Thank you. Q. There’s no apology on January 27th, do you agree? A. She asked: “Let’s make up”, with two question marks. I would consider that as close to an apology as it can be without actually saying I’m sorry. and do you agree with me that it’s also consistent Q. But it’s with her being angry at you, and, as is you being angry at her? — • A. I wasn’t angry at her. I was actually puzzled after after I failed to have sex the second time, I said: “Let’s watch some TV or let’s watch the Daily show for a bit and them maybe later, I’ll be feeling up to it.” -- V And she just left. She didn’t say anything. Q. So.... A. So, I wasn’t angry at her at all.” “A. I think she meant that she was sorry for leaving abruptly, urn, and that [173] she wanted to make up. Q. Because your evidence, I believe is that there was no argument, am I right? A. There was no argument, but she the way she left with such haste and without speaking to me, that implies anger of some sort or unhappiness or discontentment or however you want to put it.” — [174] “Q. Okay. On the, urn, the time that you went, that you first met Ms. Gray, that right? When you first that also happened to be also at the Victory Café, interacted with Ms. Gray on January 16th? urn, yeah. Yeah, that is correct. We did sort of A. That is exchange glances at the union meeting before and smiles, but verbal interaction, that was at Victory Café the first time. — — 105 — Q. And that was because the union meeting was close by the Victory Café, isn’t that right? — A. Yeah, it was at the U of T campus, near the Art Gallery on Bloor, or Museum. I’m not sure which it is, Museum or Art Gallery on Bloor, sort of at Bay, that’s Q. Okay. So, urn, and would you describe that behaviour as a mutual flirtation? A. Which behaviour? Q. At the union meeting? Exchange, as you put it exchanging glances? A. Yeah, I would say that’s somewhat flirtatious. Q. And then, ah, did you also have a few drinks at the Victory Café that night? A. Yes, we did.” [175] “Q. Becoming mutually flirtatious as opposed to not being mutually flirtatious at first? A. Yeah, on the walk to Hurricanes, most,of the group took the subway and then I said that I was going to walk and then Mandi said that she would walk as well. So, it was just the two of us walking to Hurricanes and we were flirting on the way there. Q. And I understand that there were other people that you knew at Hurricanes as well, isn’t that right? A. Yeah. Well, the people who took the subway, we saw them there. They got there a bit before us, obviously. Q. And was Gazem one of those people? A. Ah, yes, she was there.” [176] “Q. In fact, you had had a previous intimate relationship with Gazem, isn’t that right? MR. URURYAR: Your Honour, is that — yes. Q. And in fact, you had intimate relations with Gazem after you were with Mandi Gray, isn’t that right? — 106 — A. No, that is not correct. Q. And are you aware that Gazem spoke to Mandi in the washroom and basically warned her about you? A. I was not aware of this. Q Okay Urn, would you describe your relationship with Gazern as being cordial at that point or not cordial? A. At that point, not very cordial but it becarne so in the couple days afterwards, immediately. would you say there were some bad Q. So it appeared feelings between you and Gazem at that point, especially coming from her side as far as you knew? — A. Yeah, there seemed to be-, yes. and was your relationship with Q. Urn, so when you, ah Gazem going on at the same time as your relationship or the casual relationship you were having with Mandi Gray? — A. No, definitely not.” [177] “Q. At the Victory Café when you were— when Ms. Gray touched your leg, okay, and what, did you scream? A. No, I did not scream. Q. Did you yell? A. No, I did not yell. Q. Did you push her away? A. No, of course not. Q. Did you get up and leave? A. Ah, I don’t think so, no. Q. Ah, hmm, what do you mean by you don’t think so? Do you have a specific memory or not? A. I certainly remember her groping me. I don’t remember getting up in the immediate aftermath but, ah, I did get up at some point, I know for sure.” — .107 — [178] “A. Yes, it did and I asked her to stop and she did, so there was no reason to get up and leave. Q. And yet, still you continued to have this plan that you would be having sex with this woman at the end of the night? A. It wasn’t a firm plan I my mind, I’ve waited willing to see where things went. I wasn’t a hundred percent set on having sex with her no matter what It was going to be depending on how we were both feeling about it. — Q But then right’? — but you definitely continued to talk to her, is that A. Sure, yes. Q. Urn, and not only that but you even went together with her and other people to a second location, isn’t that right? A. Yes, I did. Q. Where, on your evidence, she touched you without your consent once again, isn’t that right? A. Yes, shedid. Q. And the second time that it happened at Paupers? A. Yes. Q. Did you. scream? A. No, I did not. Q. Did you yell? A. No, Idid not. Q. Did you fight back? A. No, I did not. Q. Did you push her away? A. No. Q. Did you get up and leave? A. No, I did not. — 108 — Q. Did you go home? A. No, I did not. Q. Did you tell anybody? A. No. Q. Ah, do you recall interacting with Lacey at Paupers? A. Yeah, I believe we did briefly.” [179] “Q. Isn’t it actually true that you and Mandi spent very little time in each other’s company at Paupers? A. Ah, relatively little, yes. Q. But you were trying your hardest to have contact with Lacey, do you agree? a. little bit more A. No, I wasn’t trying.” [180] “Q. Ah, well, of all the people then, why would she be the one you would want to ask to your place for drinks? A. It was just the three of us at that time. If Indigo and Gazem had stuck around, I would have invited them too. Q. Now, are you denying that you were thinking about a threesome at that point? A. Not at the time that I extended the invitation. The only time I thought about a threesome really was when Gazem mentioned it. to me. Q. I’m going to suggest to you that, that in fact, having a threesome was the only thing you were thinking about at that point? A. No, it was not. Q. And, in fact, was it not a bit of an obsession of yours? A. No, it was not an obsession. Q. And did you not think that you were close to achieving that, ah, that threesome? A. No, I did not consider it when I invited Lacey over.” — 109 — [181] “Q. So, you’re saying that you were disappointed that she wasn’t joining you for drinks and that it had nothing to do with the vanishing prospect of the threesome? A. That’s right.” [182] “Q. So you were indifferent as to whether or not there would be a threesome that night? A. That’s correct. I wasn’t even sure I was feeling up to having sex with Mandi, so I the prospect of a threesome was not something that was weighing heavily on my mind. — Q. So, but it generally? — and yet, you’re so willing to continue the evening A. Yes.” t183] “Q. Well, while you were talking about union matters and the weather, at what point did continuing the party come up on the walk? A. It didn’t come up. It the only thing that came up was Mandi saying that she wanted to have sex when we got home and then I said that I would try but I couldn’t promise that I would be physically capable. — Q. At that point, did you talk about your disappointment with the vanishing threesome? A. No. Q. Urn, isn’t it true that you expressed your, I’ll call it your lack of regard for Mandi’s behaviour at the two bars that evening, to her? A. I did not express that on the walk home. Q. Isn’t it true that you felt that? A. No, I didn’t. It wasn’t at the front of my mind on the walk home. Q. In fact, isn’t it true that you felt contempt for Mandi? A. No, I did not. Q. Urn, it and is it your do you deny that you were insulting her and making disparaging comments about how much she had been drinking and what she had been doing that evening? — — — A. I deny that completely. her behaviour. 110 — I simply said that I didn’t appreciate Q. And was that on the street on the walk home?” “Q. And then when you got, urn, was the place quiet when you arrived [184] home? A. Yes, itwas. Q. Was it dark? A. Urn, well, not — yeah, before I turned on the lights, yes. Q. Yeah, before you turned the lights on. A. Yeah. and because you did say that it was impossible for Q. So is you to tell whether anybody else was home? — A. I couldn’t say for sure, that’s right. Q. And wouldn’t that be just pretty much par for the course in terms of your three roommates? A. Urn, no, they generally have their doors closed when they’re at home and asleep. And when they weren’t home, if they were out late at.night, their doors would usually be open. That was usually how it went. Q. So, what my question is really related to your, urn, that you’ve said the three of you were close, right? A. We were not.” “A. It wasn’t really a conscious decision. I think we just, we went into the [185] apartment and we got undressed and we got into bed. So I guess the, [guess we weren’t in the mood for Q. For what? A. For partying. Q. And then was it at that point that you told her, after you were undressed in bed, under the covers, did you choose that moment to tell her that you did not appreciate her behaviour earlier in the evening? — 111 — A. Yes, it was after she had tried to kiss me when we were in bed. Q. Okay. So, but even on your evidence, you say your plan, according to what you’re saying right now is that you’re aboutto engage in a mutually consensual sexual activity? That’s your evidence, am I right? A. It was after we had had some conversation, yes. But it wasn’t a plan at that point. I said that I would try and if I was physically able, I would. Q. Okay. Again, I’ll ask the question again... A. Yeah. Q. ... in case you’re having a little bit of trouble with it? A. Yeah. Q. Okay. A. Okay. Q. So, I’m suggesting to you that when you went home to your apartment A. Yes. this is and I’m just asking you to confirm that this is your Q. evidence, okay. You each took off some clothes, if not all of your clothes, right? ... — A. Right. Q. You got into bed under the covers, right? A. Right. Q. Okay. And what I’m going to suggest to you that you were thinking at that this point, that what was going to follow was going to be an attempt at least at a mutually consensual sexual activity? Do you agree? -- A. I thought so at first, yes, but I, after she moved in to kiss me, at that point I thought that, urn, it wasn’t a very good idea to do it, to have sex. — 112 — 2 Q So you changed your mind A. Yes, 1 did. Q. So, which you’re entitled to do, right? A. Yes. Q And, ah, and it’s at that point that you told her what? Don’t 9 What? kiss me A No, I just said that I don’t think we should sleep together we have compatible anymore because I don’t think we’re interests and I brought up the example of her behaviour at the bar Urn, her groping me at the bars — Q. Okay. That was, urn, so you told her you didn’t think that you should sleep together because she had twice she had touched your leg at the bars that night, is that right? A. Yes, and I also said that, that my girlfriend would be moving to Toronto in April so it would be better to end the relationship sooner rather than later and just be friends. Q. Okay, but you’re suddenly struck by the memory of your girlfriend when you were under the covers... A. Ah, no, it just ....“ [186] “Q. And do you deny that having a threesome was a sort of long held, ah, sort of fantasy of yours? A. It was something that Mandi and I had discussed. It was not something that I was obsessed about. Q. Okay. I’ll ask the question again. Do you deny that you, not Mandi, do you deny that you had a harboured fantasies about having a threesome? -- A. No, I don’t deny that. Q. I’m going to suggest to you that the prospect was very enticing to you when you heard Gazem talk about it? A. It was somewhat enticing but again, it’s a third party, it’s hearsay so I didn’t take it seriously.” -- — 113 — [187] “Q. No, at any point, is what you’ve told us? You said you didn’t speak to her about it at any point? That’s my understanding of what you said? A. Earlier in our relationship, we had talked about it when we were at her place, but that’s it. Q. No, that evening, I mean. When Lacey was in the cab, when she left with the car, on the walk home? You’ve told us you didn’t not only did you not express frustration about not having a threesome, you’ve said that you didn’t speak about it at all? — A. That’s right.” [188] “Q. Okay. And now, I want to know why you didn’t talk to Mandi about it either with Lacey or even if nol with Lacey, after Lacey left? Why did you not talk to her about it? A. Because we were talking about other things and she Q.l.... A. ... she had left, so there was no point in dwelling on it.” [189] “Q. And then when you and again, I’m going to suggest to you that when you got under the covers with Mandi, if you could just determine for us please, the time that you decided you no longer wanted to be in this relationship? — A. I think it was around that time that we were undressing and getting into bed. Q. ‘Cause it wasn’t when she touched your leg at Victory Café, right? A. No, that was not at the point. That was not the point where I wanted to end the relationship, yes. Q. And it wasn’t at Paupers? A. That’s right. Q. And it wasn’t when you were walking with Lacey, right? A. That’s right. Q. And it wasn’t after Lacey left, or was it? A. Ah, no, it still wasn’t. —114— Q. And then so, once you decided you didn’t want to be in a relationship of any kind with Mandi, urn,.... A. I said we could still be friends. Q. So, at that point, you got out of the bed and put the rest of your clothes on? A. No, I didn’t get out of bed and put my clothes on.” “Q. Okay. But I’m asking about you and Mandi on your evidence, under the [190] covers about to engage apparently in a mutually consensual sexual act? Okay, that’s your evidence, right? That’s what was going on, or not? A. No, it’s so, she tried to I said: “No”, and — — she leaned in to kiss me and then Q. Okay. A. ...thatledto—thatledto... Q. CanI.... that led to the discussion and then when she got upset, that A. led to sex eventually. ... Q. Alright. But my question was, before she leaned in, before Mandi, as you say leaned in to kiss you? A. Right. Q. Okay. Urn, you were lying in bed? A. Yes. Q. Having taken your clothes off, right? At... A. I was wearing Q. ... . least some of them? A. I was wearing my underpants and undershirt. Q. Under the covers? A. Yes. Q. Right? And, ah, with a woman that you’d been previously intimate with, right? — 115 — A. That’s right. Q. With a woman that you received a text message earlier saying that there could be some sexual activity later, right? A. Yeah.” [191] “Q. That’s not what I’m suggesting to you. I’m not suggesting you were thinking only of that, but I’m saying there was a consistent expectation, if sometimes it was at the back of the mind it might have been, but certainly this was the expected course of the evening for you? A. There was never an expectation.” [192] “Q. Mandi under the covers, some of her clothes off, lights off, in bed? Do you not agree that at that point, it was I’m not saying it’s an expectation, but what appeared to be about to happen in your mind at least was that you were going to be engaging in a mutually consensual sexual activity? -- A. I wasn’t sure at that point. I still wasn’t sure. Q. Okay. Well, you had had, on your evidence, you said there was a conversation on the walk home about Mandi wanting to have sex. A. Yes. Q. ... and you gamely offering to try? A. Yes, that’s right. Q. Right. So, isn’t this the point where that would start to take place? A. Yeah, but at that point, I felt like I couldn’t even try. Q. So, um, and when you say that Mandi leaned in to kiss you, you were done? Is that your evidence, you’re like no A. Yes. this is not happening. Okay, so at that point, you got up out Q. of the bed? ... A. I did not get out of the bed. Q. Oh, at what point did you get up out of the bed? A. I did not. — 116 — Q. Oh. Okay, so, and at that point, you say that you and when I describe itas a bolt of lightning type of thought, it’s like up and to that point, were you having thoughts about breaking up with Mandi throughout that evening? — A. Not throughout that evening but in the aftermaths of our last, I guess couple, you could call them arguments, the night where she left without saying a word, um, after those events, yes, I, I started having thoughts about ending the relationship Q. Okay. Well, isn’t it true that the relationship between you and 9 Do you agree with that 9 Mandi was hardly a grand love affair A Urn, maybe wasn’t very romantic but we did see each other quite often during the course of the two weeks and we did exchange text messages almost every day. Q. Yeah, it was like you know messages, right? -- we have most of the test A. Yes.” [193] “Q. Urn, and I notice when I’m looking at Exhibit IC) that there aren’t any between the 16th and the 19th of January? Does that mean that there weren’t any? A. Ah, that’s right.” [194] “Q. And I’m going to suggest to you that, that in this history, there is nothing in any of these text message that suggests that your relationship with Mandi was anything but casual? A. Ah, yes, that is true.” [195] “Q. ... no, like, ah, there’s no expressions of endearment, correct? A. There are a couple. There’s, urn, an occasion I think where we both say “I miss you”, and I think there’s another occasion where she says, “Oh, you want to see me that much”. There’s a couple instances of things like that, urn, but not, yeah, not overly romantic, I would say. In fact, if you didn’t know the history, it would Q. Exactly. even it might even look like two colleagues, do you agree? — A. Ah, no. No, it would not.” — 117 — [196] “Q. And you’re mentioning that because you know that there’s nothing in your text history that confirms your story which is that Mandi was essentially so anxious to have a real relationship with you? A. I don’t think there is explicitly in the texts. There might be, I don’t I haven’t memorized them a hundred percent. But, urn, yeah, those types of feelings were not conveyed via text, yes. — Q. I’m going to suggest to you that those types of feelings were not conveyed to you at all? A. Ah, there were a couple of occasions. Q. I’m going to suggest to you that she really wasn’t that interested in you? A. That, I don’t know. I mean, that’s, that’s something you’d have • to ask her.” [197] “Q. I’m going to suggest to you that it was very much unusual for her to you say that she was crying, I’m suggesting to you that that wasn’t— crying over the demise of the relationship, that’s your evidence, right? — A. I don’t know why she was Q. That’s what you think? A. I don’t know why she was crying exactly. It might have been because I made a big deal of the groping. It might have been because of the end of the relationship. Urn, but I don’t know for sure which one.” [198] “Q. Airight. And that’s after she leaned in to kiss you? A. Yes. Q. And did you put your hand up or push her away? A. No. Q. And did you immediately launch into your sort of, I guess difficulties with her behaviour earlier that evening? A. I think she asked why I leaned away or something along those lines and then that’s why, that’s when I went, ah, that’s when I started to talk about her groping me at the bar, because it was — 118 — kind of similar where I had said no to her groping me and 1 had said no to her coming in to, you know, towards me to kiss me and it, that’s why that came back into my mind. you’re saying that when you were partially Q. It was undressed, under the covers with Mandi — A. Yes. Q. ... ah, and she leaned in to kiss you? A. Right.” [199] “Q. So, in a way, I guess you’re saying that she was assaulting you by leaning in towards you to kiss you? [200] now. “A. No, I didn’t think of it as assault at the time and I don’t think I do, even - Q. Well, you’re likening it to, as you say, the groping incident in the bar? A. Yeah. Well, that was different. I think she might have had I wanted to kiss her once we were in reason to believe that she bed. Um, but and even at the bar, she might have had reason to believe that I wanted to be groped, but, ah, maybe not so much the second time that she groped me. — Q. Okay. And again, just to go back to your frequent use of the word grope. You’re talking about her hand on your thigh, right? A. The upper thigh and inner thigh, yes. Q. Right. I think that — let’s just talk about Victory Café. A. Okay. Q. The first time, right? A. Right. Q. For a matter of seconds, her hand on your thigh A. Yes. Q. ... right? A. She was moving it up and down. — 119 — Q. And, ah, did anybody else say anything? A. Ah, as far as I know, no.” [201] “Q. Were Mandi? — and were you embarrassed about your relationship with A. No, I was not. Q. Were you embarrassed to be touched by Mandi? A. I was embarrassed to be engaging in that kind of behaviour in public. It had nothing to do with Mandi in particular. Q. Urn, had you been shocked by such events before? A. Yeah, I think there were a couple of occasions with other people that, you know, similar things have happened and I’d simply asked them to stop. Q. Okay. So, urn, sothen doyouthinkthatwasthefirstthingthat you brought up with Mandi after you told her or after you leaned away or turned away when she tried to kiss you, on your evidence? A. Yes, that’s right. Q. And you said it how? What words did you use? A. I think I said that: “I didn’t like you groping me at the bars, even though I’d asked you twice to stop.” I think I said something along those lines. Q. Okay. But on your, even on your evidence, she touched you once, you asked her to stop, she did and then she touched you again? A. Yeah. Q. And you asked her to stop and she did? A. That’s right. Q. So what do you mean by even though I asked you to stop? A. Ah, I mean, I’m referring to the first time where I ask her to stop and then she does it again... Q. Okay, so .... —120— A. ... later. Q. And, urn, did you notice Mandi’s reaction to what you said? A. Yeah, she appeared confused. She didn’t seem to understand whyit was a big deal.” [202] “Q. So, what did you say in — what did you say then? A. Ah, I think I just said that it was a big deal and urn, I think I said something along the lines of we should end this relationship, we shouldn’t, ah, this should be the last time that we sleep in the same bed together. Q. Okay. So, is your evidence that you never said this will be the last time we’ll have sex? A. Ah, no, I didn’t mention sex in particular, no. Q. Okay. So, urn, your explanation then was, it was a big deal? That was your explanation? A. Yes. Q. Okay. Did you elaborate on that? A. Ah, no. As far as I can remember, no.” [203] “Q. And I’m going to suggest to you that the day she did leave your apartment without talking to you is because of your insistence on watching pornography and then having sex with her right after that? A. No. The pornography was something that we agreed to, urn, after I failed to maintain an erection the first time that we attempted to have sex. Urn, and then when I failed the second time, ah, that’s when she, ah, collected her things and she went back, urn, yeah, she left. Q. And did the pornography involve, ah, a threesome? A. No, I don’t think so. Q. You don’t think so? A. Ah, pretty sure it didn’t, yes.” — 121 — “Q. Okay, so, ah, when was the next time that you saw Phil after the [2041 morning of January 31st? Or after Mandi left, on the morning of January 31st? A. I believe I saw him that afternoon.” I think he was in the kitchen and I was in [205] “A. So I think he was getting there getting something. That’s what I think. — Q. And did you talk to him about Mandi at that point? A. No. Q. Urn, was that before or after you got the text from Mandi? [206] A. Ah, I think it was after.” [207] “Q. I know you said that there was no protection used that night when you had intercourse-with Mandi Gray, correct? A. Correct. Q. And, urn, and you said that Mandi told you that she keeps track of her cycle, is that right? A. That’s right. and is that because that was a Q. And you know that conversation that you had that night? — A. No, it was a few nights previous.” [208] “Q. And, so, you, I guess assumed that she was, ah, keeping track of her cycle or you just didn’t think about birth control? A. No, I assumed she was keeping track of her cycle. Q. So.... A. And it was still. Q. And in the past, you’d been confident that, ah, she would not engage in activities unless her cycle allowed for her not to be in jeopardy of getting pregnant? A. Yes, that’s right.” [209] “Q. And I’m suggesting to you that the reason for that however, is that she was not given an opportunity to, I guess be, ah, keep track of her cycle that night because you just took unprotected sex from her that night? — 122 — A. No, that is absolutely not true. Q. And you are fully aware that she wouldn’t have engaged in unprotected sex if her cycle was at the wrong point? A. She would have told me, yes.” just to clarify what you said about the [210] “Q. And again, urn, just to go conversation that Gazem, or it was not really a conversation was it? You said that this woman Gazem came up to you and told you or advised you that Mandi was planning a threesome with you and Mandi and Lacey, right? — A. She didn’t specify Lacey. Q. But, did you make that assumption? A. No, I didn’t make any assumption. Q. Okay. And, um, I imagine that was a pretty unusual event for you?. A. Ah, yeah, it was.” [211] “Q. Um, and is it your evidence that you remained calm through all of these events? A. Yes. Q. Um, although of course you made no effort to extricate yourself from the situation? A. How should I have done that? Q. You did not at any point get out of the bed A. No. Q. ... for instance? Or sleep on the couch? A. No, I did not do that. Q. OraskManditoleave? A. No, I didn’t ask her to leave. Q. Or like, or even basically even dis-invite her? A. Ah, no, I did not do that. — 123 — Q. And is it your evidence that, ah, this, the first thought or that that you really weren’t going to engage in sexual activity the was when she leaned in to kiss you? — A. That’s right. Q. So you agree then with, ah, with Mandi that there was no affectionate kissing or anything like that before the bed? A. Not before the bed but later on when we were in bed, there was foreplay. Q. Later on when you were in bed after your sexual activity, you mean? A. No, no. Prior to the sexual activity, after talking. Q. No, I’m talking about before she leaned in to kiss you? A. Yes, and there was conversation that followed her leaning in to kiss me and then there was foreplay and then there was oral and then there was intercourse. Q. I’m going to suggest to you that the reason why you were able to ejaculate that night is because you were in fact expressing your contempt for Mandi Gray? A. No, I did not have contempt for her. Q. I mean, telling someone this is the last time and you’re going to like it? A. I did not say those things.” [212] “Q. On your evidence, you must have been extremely confused that she was angry in the morning? A. Ah, somewhat but I thought I knew, I thought it was because I had made a big deal of the groping and that I’d ended the relationship, but then we had sex anyways. I thought she was angry about that. Q. Okay, but I think we already discussed what the big deal was and the big deal was just simply mentioning it, right? A. Mentioning what? Q. The groping, as you call it? — 124 — A. Yeah, I mentioned it and I, that was an example that I gave of us not being, I guess on the same wave length, not wanting the same things from the relationship.” [213] “Q. Okay. So, then when she sent that text message that said: “Last night was really fucked up”, at 1:27 in the afternoon, right? And do you remember whether you saw that message right away? A. Ah, yeah, it was I saw it maybe a few minutes after it was sent. I was in the kitchen when I read it.” — = “Q. So, twenty, um, like not quite half an hOur later you responded: “Okay”, [214] right? V A. Yeah. That’s right. Q. Right. So, you had a little bit of time to think about what your response would be, right?” [215] “Q You didn’t take the statement: “Last night was really fucked up”, as sort of a, as her expecting some kind of response from you? V A. I thought she was going to explain more. It wasn’t the first time that I’d received a sort of, a text message that wasn’t totally clear, but then she would eventually explain either in person or via text. V Q. Oh, well, what are you talking about? We have all the text messages here. So I’m handing you Exhibit 1C). A. Sorry.” [216] “Q. Okay. So your evidence is her saying “Let’s make up”, to which you responded “Sure”, is the same thing as her saying “Last night was really fucked up”? It’s the same kind of message? V A. It’s not quite the same, no. But it’s similar in that it doesn’t have context. Q. The context, Mr. Ururyar, don’t you agree comes from what happened before? A. Yes Q. That’s what context is, right? A. What happened last night, yes. V V — 125 — Q. Right. And when you got the message that said “Let’s make up” and you responded “Sure”, you knew exactly what she was referring to, did you not? A. I thought I knew, yes, but she doesn’t make it clear in the text message.” [217] “Q. And after five days, you sent the message: “I am sorry things went as they did. P shouldn’t have said and done some of the things I did. I was upset and felt wronged by you, but that does not excuse my own mistakes.” A. That’s right. Q. You sent that message, right? A. Yes, I did. Q. And did you know from your end whether or not she received that? A. I wasn’t sure. I doubted it because of the colour of the text message. It was green, rather than blue, so I was fairly sure that she didn’t actually receive the message. Q. Alright. So A. But she might of just not had an internet connection at the time or the phone might have been off. So I wasn’t a hundred percent sure either way. Q. But on your evidence, you really haven’t talked much about being upset at all? A. Myself? Q. Your evidence of that evening, you A. Yes.” [218] “Q. So, when you said thethingsldid.” — you said: “I shouldn’t have said and done some of A. Mm-hmm. Q. What were you referring to specifically? A. Well, I said that I didn’t want her to grope me and 1 said that I didn’t think — 126 — Q. Well, what’s wrong with that? A. Well, it was, I guess could come off as kind of mean. Q. Okay. What else? A. Urn, and then I broke up with her which is you know, an action, so that’s what I was referring to. Q. But break up with what? You weren’t in a relationship? A. Well, when I say break up, I mean break off sleeping together anymore. Q. And then you said: “I was upset and felt wronged by you”? A. Yes. Q. Right? And what, what does that mean? A. Well, I’m referring to the groping again. Q. Okay. So, all.this upset is from the groping?” [219] “Q. To, and so the wronging was a, I’m going to suggest to you, even on your own evidence, a fairly casual and brief touching in a bar that stopped as soon as you said stop doing that? A. No, I don’t agree with that.” [220] “Q. Isn’t it more true that you were a lot, you were extremely cautious about what you might want to apply because you knew that you got carried away and raped Mandi Gray? A. No, that was completely false. Q. Because you were annoyed with her? Do you agree you were annoyed with her? A. Yes, but I did not rape her. Q. And more than annoyed, you were actually incredibly angry that she essentially blew your chance for that threesome that you’d always dreamed about? A. No, that is completely wrong. —127— Q. And on top of that, you also had the added wrinkle of being a little bit worried about what your girlfriend might think of your activities, isn’t that right? A. No, that was not a concern.” Re-Examination by Ms. Bristow [221] her? “Q. Have you ever slept in a bed with a woman and did not have sex with A. Yes, it has happened.” MS. BRISTOW: Okay. “Q. At any point, in the early morning hours of January 31st, 2015, did you feel in your mind that Ms. Gray had changed her mind about wanting to have sex with you? MR. URURYAR: A. No. Q. My friend had asked you some questions about, ah, your conversation with Lacey about continuing the party. What did you mean by party, or continuing the party? A. Urn, I wasn’t exactly sure. I thought we could go over to my place and have maybe one more drink and just chat, hang out. Q. Does continuing a party, urn, to you, does it only relate to drin king? A. No. Q. Would continuing a party relate to just hanging out and talking? V A. Yes.” [222] “Q. Did continuing the party in this particular circumstance, urn, at all relate to having a threesome? A. No, it did not. —128— Q. Do you recall how long it was between the time that you left the bar, ah, and were speaking with Ms. Gray and Lacey and the time that Lacey entered into a cab? A. 1 think it was somewhere between five and ten minutes. Probably closer to five. Q. Okay. Did you have any opportunity after ask Lacey about having a threesome? — during that time to A. No, I did not.” [223] “Q. In terms of, urn, the breakup or what you call a breakup with yourself and Ms. Gray, when is the first time that that, the thought of breaking up with Ms. Gray crossed your mind? A. The first time was, ah, nearly a week before, ah, the 31st, my relationship when I mentioned my girlfriend and that our soon. When she got end point some at with Mandi would have to upset about that, that is when I thought that it may be best to end the relationship sooner, rather than later. —- Q. And sorry, I didn’t hear the last part. A. Sorry, urn, I thought it might be best to end the relationship sooner rather than later after that. Q. And what made you make the decision to breakup with Ms. Gray on January 31st, 2015? I just realized that we didn’t want the same A. Urn, mainly, it things from the relationship and that we weren’t compatible. Ah, so I decided that at that point that the relationship should end.” — [224] “Q. Did you feel at any point that you were overreacting to, to not wanting Ms. Gray to touch you the way that she did? A. Yes, and that’s why I sent the text apologizing. Q. When you were back at your house with Ms. Gray, did you have an issue with her kissing you at any point hen? A. At first, yes, urn, because I thought it would lead to sex and I didn’t think it would be a good idea to have sex because I thought our relationship should come to an end. But we did the eventually, ah, begin kissing, before having sex. — — 129 — Q. And, at that point, did you have an issue with it or were you just going along with the motions? A. No, I didn’t have any issue with it at that point, no.” Alison Moore [225] — Examination In-Chief by Ms. Bristol Q. And where do you live? A. Vancouver, although I lived in Montreal for two years previously. Q. Okay. And when did you begin living in Montreal? A. August2013. Q. Untilwhen? A. June2015.” PART II -THE LAW [226] Mustafa Ururyar is charged with sexual assault. The formal charge reads: on or about the 31st day of January, in the year 2015, in the City of Toronto, in the Toronto Region, did commit a sexual assault on Mandi Gray, contrary to s.271 of the Criminal Code of Canada. To find the accused guilty of sexual assault, the Crown must prove each of [227] the essential elements beyond a reasonable doubt: I. That Mr. Ururyar intentionally applied force Ms. Gray; ii. That Ms. Gray did not consent to the force that Mr. Ururyar (intentionally) applied; iii. That Mr. Ururyar knew that Ms. Gray did not consent to the force that (intentionally) applied; and iv. That the force that Mr. Ururyar (intentionally) applied took place in circumstances of a sexual nature. If the Crown has not satisfied the Court beyond a reasonable doubt of each [228] essential elements, I must find Mr. Ururyar not guilty of sexual assault. these of —130— [229] If the Crown has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find him guilty of sexual assault. [230] The application of force may be direct. The force applied may be violent. To be an assault, the accused must apply the force intentionally. The word “intentionaII’ refers to state of mind when he applied the force. “IntentionaIIy’ means “on purpose”. To decide whether applied force intentionally, I have to consider all the circumstances surrounding the application of force. [231] If I am not satisfied beyond a reasonable doubt that Mr. Ururyar intentionally applied force to Ms. Gray I must find Mr. Ururyar not guilty. [232] If I am satisfied beyond a reasonable doubt that Mr. Ururyar intentionally applied force to Ms. Gray, the next question is one of consent. [233] Consent involves state of mind. It is the voluntary agreement to do what he did in the way in which he did it and when he-did it. [234] Just because the complainant, Ms. Gray, may not resist does not mean that she consented to what happened. Consent requires knowledge on part of what is going to happen and a decision by Ms. Gray without the influence of force, threats, fear, fraud to let it happen. [235] If I have a reasonable doubt whether Ms. Gray consented to the force that (intentionally) was applied, I must find the accused not guilty. If I am satisfied beyond a reasonable doubt that Ms. Gray did not consent to [236] the force that Mr. Ururyar (intentionally) applied, I must proceed. The Crown must prove beyond a reasonable doubt that Mr. Ururyar knew [237] that Ms. Gray did not consent to theforce that was (intentionally) applied. To “know” something is to be aware of it, at the time you do it. V [238] Am I satisfied beyond a reasonable doubt that Mr. Ururyar was actually aware that Ms. Gray did not consent to the force that Mr. Ururyar (intentionally) applied? [239] Am I satisfied beyond a reasonable doubt that Mr. Ururyar was aware that there was a risk that Ms. Gray was not consenting to the force that Mr. Ururyar. applied, but Mr. Ururyar went ahead anyway, not caring whether Ms. Gray consent or not? Am I satisfied beyond a reasonable doubt that he knew he should inquire [240] whether Ms. Gray consented to the force that Mr. Ururyar (intentionally) applied, but did not make the inquiry because he did not want to know the truth about Ms. Gray’s —131-— consent? In other words did Mr. Ururyar deliberately fail to inquire about Ms. Gray’s consent even though he knew that there was reason to do so? [241] To prove that Mr. Ururyar knew that Ms. Gray did not consent, the Crown does not have to prove each basis of knowledge. [242] To determine Mr. Ururyar’s state of mind he knew about Ms. Gray’s consent or lack of it, I must consider all the evidence. I must consider their words and conduct before, at the time and after Mr. [243] Ururyar (intentionally) applied force to Ms. Gray. [244] If I have a reasonable doubt that Mr. Ururyar knew that Ms. Gray did not consent to the force that Mr.. Ururyar (intentionally) applied, then I must find Mr. Ururyar not guilty. Section 271 of the Criminal Code creates the offence of sexual assault. [245] Sexual assault is both a crime itself and an essential element of the more serious offences for which ss. 272 and 273 provide. In the second paragraph, the offence is divided into four elements: i.application of force; ii.absence of consent; iii. knowledge of absence of consent; and iv. circumstances of a sexual nature. Where the accused raises consent as a defence, it is critical to understand [246] that there is no onus on the accused to prove the defence, rather the burden is on the Crown to negate it. It is the accused’s state of mind. The Crown may establish this element by proof of actual knowledge, recklessness or wilful blindness. Knowledge of the absence of consent is the essential element of the Crown’s case which any claim of apprehended consent relates. See R. v. Lutoslawski, [2010] 3 S.C.R. 60. V Sexual assault does not require proof of an improper of ulterior purpose. [247] See R. V. Ewanchuk, [1999] 1 S.C.R. 330. The external circumstances of sexual assault include, V touching; sexual nature; and absence of consent. —132— The mental element in sexual assault has two components: The intention to touch; and Knowledge, or recklessness, or wilful blindness towards lack of consent. An assault that is sexual in nature does not always appear hostile in the [248] same way as an ordinary assault. Hostility may arise from lack of consent. See R. V. Litchfield, [199314 S.C.R. 333. Sexual assault is a crime of general intent. The test is objective. All the circumstances surrounding the relevant conduct are relevant to the issue whether the conduct was of a sexual nature and violated sexual integrity. See R. V. Litchfield, supra. Sexual assault does not require sexuality or sexual gratification. SeeR. v. V(K.B.), [1993] 2 S.C.R. 857 affirming (1992), (3d) 65 (Ont. C.A.). Sexual assault includes an assault with the intention of having sexual [2491 intercourse with the victim without thatpersofts consent, or an assault made upPn victims for the purpose of sexual gratification. See R. v. Alderton (1985), 17 C.C.C. (3d) 204 (Ont. C.A.). The real issue in this case is whether the events alleged to form the basis of [250] the crime as charged took place. The Crown must prove beyond a reasonable doubt that the events alleged in fact occurred and that Mr. Ururyar was the person involved in them. It is not for Mr. Ururyar to prove that these events never happened. If I have a reasonable doubt whether the events alleged ever took place, I must find Mr. Ururyar not guilty. I must not decide whether something happened simply by comparing one [251] version of events with another, and choosing one of them. I have to consider all the evidence and decide whether I am satisfied beyond a reasonable doubt that the events that form the basis of the crime charged in fact took place. Mr. Ururyar has plead not guilty. He is presumed to be innocent of the [252] crime charged. The presumption of innocence means that Mr. Ururyar starts the trial with a clean slate. The presumption stays with him throughout the case. It is only defeated if and when the Crown satisfies the court beyond a reasonable doubt that Mr. Ururyar is guilty of the crime charged. It is the Crown who must prove the guilt of Mr. Ururyar beyond a reasonable doubt, not Mr. Ururyar who must prove his innocence. See R. v. Lifchus, [1977] 3 S.C.R. 320. The phrase, “beyond a reasonable doubt, is a very important part of our [253] criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. — 133 — [254] It is nearly impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly h ig h. [255] Reasonable doubt is the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to the presumption of innocence. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. [256] Consent, for that matter the absence of consent, is a state of mind, Ms. Gray’s state of mind towards conduct at the time and in the circumstances in which the sexual activity took place. Only Ms. Gray’s actual state of mind matters. Consent has nothing to do with Mr. Ururyar’s state of mind, or for that matter anybody else’s state of mind. Consent is Ms. Gray’s voluntary agreement to take part in the sexual [257] activity that Ms. Gray said happened to her. [258] If the court believes the accused’s evidence that he did not commit the offence charged, I must find him not guilty. [259] If after careful consideration of all the evidence, the court (cannot) decide whom to believe, I must find Mr. Ururyar not guilty (because the Crown would have failed to prove Mr. Ururyar’s guilt beyond a reasonable doubt. [260] Even if the court does not believe Mr. Ururyar’s evidence and it leaves me with a reasonable doubt about guilt, (or, about an essential element of the offence charged. I must find him not guilty (of that offence). [261] Even if the evidence does not leave the court with a reasonable doubt of guilt, (or, about an essential element of the offence charged. I may convict him only if the rest of the evidence proves his guilt (of it) beyond a reasonable doubt. See CoryJ in R. v. W(D.), [1991] 1 S.C.R. 742. [262] The principle of reasonable doubt applies to credibility but also the standard of proof that the Crown must meet. It is enough that in the context of all the evidence, the conflicting evidence leaves a reasonable doubt about the accused guilt. [263] Assessments of credibility depend on context. Whether Mr. Ururyar’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt about Mr. Ururyar’s guilt. [264] The purpose of W.(D) is to ensure that triers of fact understand that a judgment must not be based on a choice between evidence, but on whether, based on the whole of the evidence, the trier of fact is left with a reasonable doubt about guilt. See R. v. Y (C.L.), [2008] 1 S.C.R. 5 — 134 — Where there are two irreconcilable versions of events in connection with [265] W.(D.), I should not convict automatically if I find Ms. Gray’s testimony more credible than the accused’s evidence. See R. v. Avetysan, [2000] 2 S.C.R. 745. [266] W(D.) is again fundamentally limited by its preoccupation with credibility. In cases where credibility is not an issue, there is no need for a W(D.) analysis. See e.g. R. v. Daley (2007), 226 C.C.C. (3d) 1. [267] In R. V. Randall, 2012 NBCA 25, Richard J.A. noted that exculpatory statements by the accused adduced at trial should not be treated the same way as testimony given during trial proceedings. Specifically, at para. 26: To be clear, R.S.L. does not stand for the proposition that an accused’s out-of-court statement must be given the same weight as an accused’s testimony. It may; but that is a question for the trier of fact considering the entire circumstances, including the fact the statement was not made under oath and its author was not subjected to cross-examination. R.S.L. simply stand for the proposition that reasonable doubt can be found as much in evidence adduced by the prosecution as it can in that adduced by the defence. The Ontario Court ofAppeal has also confirmed the applicability of W(D.) to [268] any defence witness, defence evidence in general, and evidence adduced by the Crown that is favorable to the defence. See R. v. D.(B.), (2011), 266 C.C.C. (3d) 197. Blair J.A. for the Court at para. 101, described this as a frailty in the judge’s [269] charge which could have been remedied by adding that if the jury was left in doubt they should acquit. He concluded that 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 defence 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: Challice. In that event, they must acquit. — — The W(D.) instruction applies not only to the accused’s testimony or to [270] evidence directly adduced by the defence, but to any evidence that might raise a reasonable doubt. — 135 — The governing principle again is that the burden of proof is borne by and [271] never shifts form the Crown to prove each and every essential element of the offence beyond a reasonable doubt. It is an error for the trier of fact to convict on the basis of disbelieving the [272] defendant without considering whether the evidence in context still gives rise to a reasonable doubt. In R. v. D.(J.J.R.) 2006, 215 C.C.C. (3d) 252 (Ont. C.A.), Doherty JA. [273] upheld a lower court decision in which a judge who did not disbelieve the defendant, nonetheless found him guilty of sexually assaulting his daughter on the basis both of the credibility of the complainant’s evidence and it corroboration in diary entries from the time of the alleged assault. At para. 53, Doherty J.A. writing for the Court found: The trial judge rejected totally the appellant’s denial because stacked beside [the complainant]’s evidenàe and the evidence concerning the diary the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as I a rejection based on a problem identified with the way the accuse d testified or the substance of the accused’s evidence. This acknowledges the value of the complainant’s evidence as a tool for [274] evaluating the accused’s credibility without shifting the burden of proof. This was articulated byWattJ.A. in R. v. T.S., 2012 ONCA 289, at para. 79 as follows: as a matter of law, reasoned acceptance of a complainant’s evidence is a basis upon which a trial judge can reject the evidence of an accused and find guilt proven beyond a reasonable doubt. A reasoned and considered acceptance of the complainant evidence is as much as explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused’s own testimony. - . A trial judge articulates clear reasons for finding the complainant’s evidence [275] credible, in light of the evidence as a whole, and either states or obviously applies the principles of W(D.). See, for example: R. v. Binnington (2005), 202 C.C.C. (3d) 364 (N.S.C.A.); R. v. L. (R.) (2002), 162 O.A.C. 275 (C.A.); R. V. Tzan7n (2005), 201 O.A.C. 183.. — 136 — The Supreme Court of Canada decided in M.(M.L.), [1994] 2 S.C.R. 3 that [276] the failure to offer some minimal word or gesture of objection should not always be equated with consent. Non-consent for the purposes of the actusreusis measured by whether the [277] complainant in her own mind wanted the sexual activity to take place. See R. v. Ewanchuk, supra. A Complainant’s words and behaviour may be evidence that confirms or [278] contradicts her state of mind. There is no presumption of consent and no doctrine of implied consent. Non-consent for the purposes of mens rea may be measured by the communication of a “yes” by words or conduct. There is no doctrine of implied consent based on passivity or historical [279] relationship between the parties. Consent must be contemporaneous and cannot be given in advance for touching that occurs when the complainant lacks capacity. See J.A., [2011] 2 S.C.R. 440. A belief in consent must be a belief that consent was voluntarily and [280] affirmatively communicated by the words or conduct of the complainant. A belief that passivity or a law,of objection is consent is a mistake of law, not a mistake of fact that can provide a defence. An accused does not have to testify to assert a belief in consent, but the air [281] of reality must come from something in the evidence, not just a bare assertion by counsel. [282] An accused must believe consent is voluntary, not procured by fear or threats (otherwise may amount to wilful blindness) It is an error of law to put to a jury a defence which lacks an air of reality. [283] See R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3. th) 4 ( 478, (1993), 86 C.C.C. In R. V. Osolin, [1993] 4 S.C.R. 595, 109 D.L.R. [284] (3d) 481, at para. 198, Cory J. provided the following definition of air of reality: The term “air of reality” simply means that the trial judge 198 must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted. If the evidence meets that test then the defence must be put to the jury. This no more than an example of the basic division of tasks between judge and jury. ... [285] In R. v. Cinous, supra, at paras. 53-54, the court said the following: 53 In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by — 137 — the accused to be true. See Osolin, supra; Park, supra. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witness, or of Crown witnesses. It can also rest upon the factual circumstances f the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. See Osolin, supra; Park, supra; Davis, supra. 54 The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. See Finta, supra; R. v. Ewanchuk, [199911 S.C.R. 330. The trial judge does not make determination about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. See R. v. Bulmer, [1987] 1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should be ultimately decide the issue. The Supreme Court dealt with the “air of reality” in two recent cases: R. v. [286] Gauthier, 2013 SCC 32 and R. v. Cairney, 2013 SCC 55. Mr. Justice Major went on to confirm that the defence of ‘mistake of fact’ [287] applies to sexual assault charges at para. 42: 42 However, since sexual assault only becomes crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convincing individuals who are morally innocent: seeR. V. Creighton, l993CanLll6l (SCC), [1993]3S.C.R. 3.As such the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless or wilfully find to, a lack of consent on the part of the person touched. See Park, supra, at para. 39. An accused may challenge the Crown’s evidence of mens rea by asserting [288] an honest but mistaken belief in consent. What is the meaning of consent in the context of an honest but mistaken [289] belief in consent? In Ewanchuk, supra, Major said the following at para 48-49: — 138 — 48 There is a difference in the concept of “consent” as it relates to the state of mind of the complainant vis-à-vis the actus Reus of the offence and the state of mind of the accuse din respect of the mens rca. For the purposes of the actus Reus, “consent” means that the complainant in her mind wanted the sexual touching to take place. 49 In the context of mens rea specifically for the purposes of the honest but mistaken belief in consent “consent” means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accuse. This distinction should always be borne in mind and the two parts of the analysis kept separate. — — [290] Justice Major also described the limitations on this defence at para. 52: 52.-. .An accused -who,- due to wilful blindness or recklessness, in fact consented to the sexual believes that a complainant activity at issue Is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified Criminal Code, s. 273.2(a)(ii). ... There must again be an air of reality to this defence. The mere assertion of [291] apprehended consent (or honest but mistaken belief) will not suffice. (See R. v. t) 4 ( 641) The air of Osolin, supra; F?. V. Bulmer, [19871 1 S.C.R. 782, 39 D.L.R. reality may arise from a combination of the complainant’s evidence, the accused evidence or circumstances surrounding the offence. (See R. v. Esau, [1997] 2 th) 4 ( 662). S.C.R. 777, 148 D.L.R. One of the more important decisions of the Supreme Court is R. v. [292] Sansregret, [1985] 1 S.C.R. 570. The basis of that decision was that the accused was wilfully blind to the complainant’s non-consent. In R. v. Esau, supra, [1997] 2 S.C.R. 777, McLachlin J. described wilful [293] blindness as follows at para. 70: 70. The term wilful blindness conhotes a deliberate avoidance of the facts and circumstances. It is the legal equivalent of turning a blind eye, of not seeing or hearing what is there to hear or see. It is the making of an assumption that the complainant consents without determining whether, as a matter of fact, the complainant consents. Blindness as to the need to obtain consent can never be raised by an accused as a defence... [Emphasis in original.] . . . In R. v. L. v. I.E.B., 2013 NSCA98, the accused was charged with sexual [294] assault and was acquitted at trial. The Court of Appeal held that the trial judge failed to conduct the “reasonable steps” analysis pursuant to s. 273.3(b), making an error — 139 — of law. A new trial was ordered. Orland, J.A. made the following comments at paragraphs 38-45: 38 Honest but mistaken belief in consent is a way of negating mens rea. As is evident from this passage in Robertson, the defence does not place a positive burden on the accused to ôall evidence, It can be satisfied by evidence from the Crown, including that of the complainant: see also R. v. OsoIin, supra, [1993] 4 S.C.R. 595, at pp. 686-687. However, as a practical matter, in the absence of other evidence in support, the defence of honest but mistaken belief in consent may be difficult to put into play when, an accused does ot testify: R. v. Park, [1995] 2 S.C.R., at para. 21. 39 As I have indicated, the judge’s decision to acquit clearly relied on this defence. The air of reality test applies to all defences, including honest but mistaken belief in consent: R. v. Cinous, 2002 SCC 29, at para. 57. Whether an air of reality to a defence exists is a question of law, and subject to the standard of correctness: Cinous at para. 55. 40 In applying that test, a trial judge considers the totality of the evidence: Cinous at para. 53. When reviewing the totality of the evidence to determine whether an air of reality exists for an honest but mistaken belief in consent, a judge must ask whether there is sufficient evidence to show that the accused honestly believed that the complainant communicated consent by words or conduct to engage in the sexual activity in question: Ewanchuk at para. 4649; R. v. J.A at para. 48. A belief based solely on silence, passivity or ambiguous conduct will not provide a defence: Ewanchuck at para. 51; R. v. Dippel, 2011 ABCA 129, at para. 13. There must be evidence that the accused held an honest belief at the outset of the sexual activity: Dippel at para. 17. The absence of resistance only one of the factàrs to be considered: R. v.Esau, supra, at para. 22. 41 It appears from his decision to acquit that the trial judge decided that there was an air of reality to the defence of honest or mistaken belief in consent. In order to dispose of this appeal, itis not necessary that I determine whether or not, based on the evidence before him, such an air of reality existed. As will be seen, even assuming that it’did, the judge erred in law. — 140 — (b) Statutory Definitions of Consent 42 The appellant was charged with sexual assault contrary to s. 271 of the Criminal Code. The Crown submits thatthe judge erred in law in his interpretation of consent under ss 265, 273.1 and 273.2 of the CrIminal Code. In order to dispose of this ground of appeal, I need consider only the last of these: 273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where, (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or The accused did not take reasonable steps, in. the circumstances known to the accused at the time, to ascertain that the complainant was consenting. 43 In R. v. Cornejo (2003), 179 OAC. 182, Abella, J.A. (as she then was) described the purpose of s. 273.2: 21 The purpose of these provisions is to ensure that there is clarity on the part of the participants to the consent of the other partner to sexual activity. The legislative scheme replaces the assumptions traditionally and inappropriately associated with passivity and silence Someone in Mr. Cornejo’s circumstances takes a serious risk by founding an assumption of consent on passivity and non-verbal responses as justification for assuming that consent exists. -- - V 44 Even if the judge could be taken to have properly found an air of reality in this case, he failed to consider the limitation in s, 273 .2(b) that the accused must have taken “reasonable steps, in the àircumstances known to the accused at the time, to ascertain that the complainant was consenting”. It is an error of law to fail to conduct the reasonable steps analysis. See Dippel at para. 15; R. v. Malcolm, 2000 MBCA77, at para. 8 and para. 31-36; leave to appeal to SCC refused, [2000] S.C.C.A. No. 473; and Cornejo at para. 18-19, 30 and 35. — 141 — 45 With respect, the judge’s reasons do not include any analysis of the evidence to establish that the respondent took reasonable steps, based on what he subjectively knew at the ascertain consent. His failure to conduct such as an analysis amounts to an error of law. [295] According to the majority in R. V. Hutchinson, 2014 SCC 19, the Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was not “voluntary agreement of the complainant to engage in the sexual activity in Question” under s. 273.1(1) and it requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. If the complainant consented, or her conduct raises a reasonable doubt about the lack of voluntary agreement to the sexual activity in question, the second step is to consider under ss.265(3) and 273.1(2) whether there are any circumstances that may vitiate.the complainant’s ostensible consent or participation. The approach of the majority was to interpret voluntary agreement to the [296] “sexual activity in question” in s. 273.1(1) to mean that the complainant must subjectively agree to the specific physical act itself (for example kissing, petting, oral sex, intercourse, or the use of sex toys). The approach in this case is consistent within the ordinary meaning of s. 273.1(1) and the scheme of the Code and R. v. Cuerrier, [1998] 2 S.C.R. 371 and R. v. Mabio, 2012 SCC 47. Here the “sexual activity in question” was sexual intercourse and the complainant voluntarily agreed to it. Effective condom use is a method of contraception. Protection against sexually transmitted disease is not a sex act. Submissions by Ms. Bristow MS. BRISTOW: “So, I’ll begin, Your Honour, with an introductory overall [297] comment about Ms.Gray’s evidence which I hope will animate everything else I have to say about particular categories of her testimony. Ms. Gray’s(sic) herself, has reasonable doubt that Mr. Ururyar acted without her consent or a belief in her consent. I take from Exhibit 3, the interview of Ms. Gray on February 2nd, 2015, at page 18. And quoting: “And I’m like, I didn’t really I guess I didn’t really, I didn’t, gosh, I don’t know if it’s denial or what. / told my friend, she’s here and I just like, I don’t know why I think I have, I don’t think I consented to sex last night and, and I, and I didn’t really, like I didn’t. It’s not that I didn’t think it was, you know, / just didn’t know what, I didn’t know what to make of it. And like I say, / still don’t.” — —142— “I hadn’t groped him at the bar as he suggested yesterday. It’s kind of [298] kind of came out of the blue, “Don’t touch me”. — “Ms. Gray would like you to believe that Mr. Ururyar, once he got to Vicotry [299] Café, that she spent very little time with him and he, unprovoked tells her not to touch him. She vehemently denied touching or even flirting with the man that she had just asked for hot set and sent a message saying “miss me that much?”, when he decided to come. “Third area is the absence of an application of force. Almost needless to [300] say at this point, there were no confirmatory injuries. Despite there being no threats during the twenty to thirty minute verbal aggression, no history of violence, Ms. Gray says that she complied with Mr. Ururyar putting his penis in her mouth because she thought she had no choice but to comply. Did she think that Mr. Ururyar wouldn’t be deterred by her not wanting to have sex Why didn’t she pull away the moment he took his pants off, or even the moment that he put his hand on her head or when he pushed her back onto the bed” [301] “Ms Gray was an active participant in the sexual act” “None of this drinking, in my submission, managed to lower her inhibitions, [302] even an iota.” “The walk home where Mr. Ururyar just repeated over and over that she [303] was a drunk slut, she was embarrassing herself, she was needy and that she didn’t please him sexually, however when it gets to the alleged sexual assault, there are a lot of “I don’t knows.” “The.most remarkable thing about Ms. Gray’s lack of precision is that in the [304] morning, when she is sober and now able to respond to Mr. Ururyar’s advances, Ms. Gray still does not recall any details.” “Why would you text the man who raped you saying: “Last night was [305] fucked up?”, if what you meant are, “Are you going to apologize for raping me?” In both of these passages, Ms. Gray acknowledges that there may have been a miscommunication that led Mr. Ururyar to thinking that she wanted to have sex.” “Ms. Gray says that she wanted to delete everything about Mr. Ururyar out [306] of her phone, but she does save the text messages from her friend Mylee which she did produce in court, text messages speaking specifically about Mr. Ururyar.” “Further, in terms of not wanting to say anything that she couldn’t back up [307] with evidence. Well, much of what the whole sexual assault complaint was about, her statement to the police about what happened at Mr. Ururyar’s house is all information that she would have not been able to corroborate with actual hard evidence.” V — 143 — [308] “The fifth category that I’d like to go over with Ms. Gray’s evidence is what in my submission is her political agenda.” [309] “I submit that Ms. Gray only decided that she wasn’t going to have consented to what happened at Mr. Ururyar’s apartment sometime well after she already had consented, whether it was out of regret or self-loathing from her impulsive acts, revenge for feeling rejected or jumping on opportunity to take down a womanizer and further her career. Her motivation cannot make her own consensual acts non-consensual. I submit that this is a chess game for Ms. Gray, not about truth telling.” [310] “During the night, Mr. Ururyar head about the possibility of a threesome and that thought did cross his mind.” [311] “And Mr. Ururyar’s evidence was that Ms. Gray got upset and began to cry. And then as Mr. Ururyar consoled her, they simultaneously leaned in to kiss and Mr. Ururyar advised that this had to be the last time that they would be together. Ms. Gray climbed on top of him, performed fellatio and voluntarily got on all fours as they proceeded to have consensual sex, on Mr. Ururyar’s evidence. The next morning [312] “That Mister Ms. Gray had climbed on top of Mr. Ururyar and performed fellatio and then voluntarily got onto all fours as they proceeded to have consensual sex. The next morning, Ms. Gray left in haste.” — Submissions by Ms. Loift “At 7:55: “I’m at Victory, come drink and then we can have hot sex.” So [313] that and her evidence about being not exactly sure when she arrived, but she thought it was around eight or 8:30. Guess what? She’s five minutes away from being exactly correct. The text message she sends at 7:55 p.m., about which we’ve heard a great deal, is delivered when she’s already there.” — “And her evidence was that they sat at different tables. And she did say [314] that for some reason he said to her that he didn’t want her to touch him in public and she was surprised by that and thought it was an odd request. And her response, she said, “I was like, whatever.” Testimony about the alcohol consumption; she said she had three or four beers at Victory Café and then they moved on to Paupers around ten. And while at Paupers, she asked the accused if she could sleep over and, and he said “Sure, but we’re not going to have sex.” And she said that she thought that was a totally weird thing to say.. — 144 — And she also testified that they stayed until closing, left together with her friend Lacey and she said that Mr. Ururyar changed as soon as her friend left in the cab, when the accused became suddenly angry and it became clear to her that based on his words, that he was mad at her. She was not pleasing him. And, and she says that she decide on the walk home, when she was sort of experiencing this behaviour from Mr. Ururyar, that she didn’t want really to continue the relationship with him. She was going to stay at his place. She testified that she was she testified about the sexual events, that she continued to be berated, talked down to, called a slut and a sloppy drunk and an embarrassment and all of that was in front of his friends.” — [315] “In other words, who knows what the union people thought but what the accused was saying to her is, in front of everyone, “you’re embarrassing”, “you’re sloppy” and all kinds of things that just apparently increased in vehemence, vitriol and intensity right up until the instant of the assault where he expressed his final disregard for her by, and need to be pleased by grabbing her head and having her perform fellatio right after saying what really amounts to “I’m angry with you, I’m so annoyed with you, you’re worthless but I’m going to fuck you and that you’re going this will be the last time and you’re going to like it.” All for him. — Pulls her head towards him, fellatio, pushes her down on the bed and has [316] intercourse with her, without her consent. Did she fight back? No. Did she scream and yell and say no, you mustn’t, you’re violating me, this is my integrity we’re talking about here, I haven’t consented? She did none of those things. “And the next morning and also, she was extremely clear on turning over [317] into a fetal position and crying herself to sleep. And the next thing that she recalled was waking up in the morning to the sensation that Mr. Ururyar was masturbating in the bed next to her, which she thought was pretty callous and surprising, given what had taken place the night before. — And she was sober, correct. She was clear headed, yes. And then he grabbed her head again, in a less forceful manner and she’s like no, not going to do this now. And, so, yes, in the morning it was what should happen was much more clear to her. She got up and she left.” -- [318] “She did not she was not weeping with disappointment as she lay in bed while Mr. Ururyar explained to her, again straight out of that B movie script and yet, who would believe it? That’s what makes them B movies, is that people watch them and they think -- — 145 — wow, that would never happen. He was telling her after he undressed and got into bed next to her, you know, we’re just not compatible. Ijust feel that we have different interests and moving forward, it’s not going to work out for us. And, at which point, the female is meant to weep and perhaps plead in the ideal B movie script, and then he consoles her as he knows best which is delivering his physical presence to her which apparently she wanted. That is what is not believable. She was cross Ms. Gray was cross-examined at length by my friend and despite valiant efforts, really there were no significant inconsistencies in her testimony.” — [319] “Question: “Okay. And then your answer says ‘I don’t remember. I was trying to figure that out. I know at Victory Café I had, I’m trying to think. I had three beers at Victory Café for sure. Urn, and then I was trying to, I was trying to, I was trying to figure it out. I think I spent $40 at the other bar on beer, but I’m not entirely sure. I’m also on medication too, so it doesn’t mix well, like with alcohol, so I get really and I didn’t intend on drinking that much and yeah, I think that’s how intoxicated I was.” — [320] So, she was challenged on that sort of alleged inconsistency, but it’s not an inconsistency. She never said that. [321] Now, and then she was also challenged on her texting her friend about being blackout drunk and she, in fact, acknowledged that that was that she was not, I guess a textbook definition of blackout drunk, which might mean not remembering anything at all. That was something that she said to her friend and she said that she agreed that she shouldn’t have used that term.” -- — “Consistent, reliable, credible, from one statement to the other, throughout [322] the lengthy cross, in-chief, at all times she was intoxicated, not falling down, not blacking out technically. But. it’s also in keeping with the words that she says come from the accused on that walk home about her being drunk and sloppy drunk, and so forth.” “What did occur is that her assertion from her evidence in-chief through to [323] the conclusion of her lengthy cross-examination was that she made a decision to have nothing further to do with him and once she sent that final text message and received that “okay” response on the morning of the event, she deleted her text conversation with him so that and that means a number of important things.” — [324] “This is the and her behaviour in deleting the entire chat history is one hundred percent consistent with someone who has been violated in the way that she described.” — —146— [325] “Page 7. And in the midst of his answer, at line 1, he says: “I decided to go home because I wasn’t feeling a hundred percent and then I got some texts from Mandy saying that she wanted me to come to the bar and then we would go and have sex afterwards.” Question: “Okay. And was it your intention to have sex with Mandy that night?” Answer: “Yes, I was going to —- I thought we could do it, yeah” And then he, and he does agree that he was enticed by that prospect. And in cross- examination, this is the exchange on this point during cross-examination, Volume V, May 3rd, page 44, beginning at line 3. Question: “Okay, ah, but still let’s go back to that night and youre still operating with the text message right at the forefront of your brain. I’m going to suggest to you that you’re going to have hot Answer: “No, I Question: .. ....“ sex with Mandy Grey?” Answer: “Ah, I don’t think that’s fair. I don’t think you can, like a text message,that just doesn’t everything you do that evening, that’s not going to be predicated based upon one text message.” — Question: “Well, it made you go out to the bar. You described it that way. You said you were enticed by it?” Answer: “Yeah, it was one, I would say the major reason, the deciding factor, urn, I went.” Question: “Okay, but you didn’t make any mention of that text message that you sent asking Mr. Ururyar to have hot sex that night, correct?” Answer: “I didn’t think it was relevant to him raping me.” Question: “You didn’t think it was relevant at all for the police to know that you had asked Mr. Ururyar to come over, or sorry, for Mr. Ururyar to come to Victory so you could have hot sex later?” Answer: “I also mentioned to you that as soon as I got home that morning, I deleted him out of my phone. I deleted all the text messages and 1 removed him from my facebook. So, I didn’t —147— want to say anything that I couldn’t back up with any evidence because I didn’t I couldn’t recall exactly what was said that evening. So, no, I couldn’t even remember what I said in those text messages until you showed them to me today.” — [326] “There was no attempts to hide anything and what was it really?” [327] “This text history is unremarkable. It reveals exactly the type of relationship that Mandi Gray described; casual, friendly.” [328] “And my summary of her evidence is that she said I don’t remember those exact details. I can tell you what happened to me and what was going on but I cannot tell you where his right hand was. I cannot tell you where his left foot was at that time. The and that is not the same as a vulnerability or an inconsistency.” -- [329] “She also said during her testimony that she only became a selfdescribed activist in this area after she gave her statement to the police, after the event, after she also spoke to her friend on the morning that it happened, after she we.nt to the Mount Sinai Hospital and had the invasive rape kit done and after she gave her statement to the police. And it’s all there in that answer: “It wasn’t my intended agenda but it has become a part of her life.And that, so it’s not enough that she has to reject defence suggestion, she also has to now explain why she speaks up the way surely she’s entitled to speak up.,, ...“, [3301 “Ms. Bristow goes one step further and says, at page 29, line II: Question: “Okay, and similarly, I’m going to suggest that you’d be relieved if Mr. Ururyar was acquitted, correct?” Answer: “I won’t be un-raped, so I don’t think it’s really relevant to me. I did everything I was supposed to but what he’s done has already been done, so I can’t say whether I’ll be relieved. I won’t be happy, I can tell you that because I still had to live through all this. So, I don’t know. Maybe you could rephrase your question.” Question: “Well, I’m going to suggest that similar to your opinion on Mr. Ghomeshi’s acquittal, that you’d be relieved if Mr. Ururyar was acquitted because it would help to support your position that the criminal justice system doesn’t work, correct?” Answer: “Well, I think we need to contextualize that statement. —148— Every single legal professional I’ve talked to up until this point, including my therapist at Women’s College Hospital, have told me that the likelihood of any justice is highly unlikely. So if I keep being told that by people who are working within the system, I can understand why I would start to believe that to be true. Yeah.” [331] “So, then my friend moves to well, then, she’s a spurned women out for revenge on the man who spurned her.” [332] “It’s not supported by Ms. Grey’s evidence and, by the way, it isn’t particularly supported by the accused either because he does not describe a relationship of any permanence or affection or investment either. [333] “WelL, look at these text messages, Exhibit 2. Minutes after Ms. • Grey left the accused’s apartment, what she says, first of all, not that she’s weeping and sad. She says, at 9:43: “Ah, why do I meet abusive psychos?” Answer: “What happened?” “Mustafa is psycho and I woke up and I know he fucked me and I didn’t want to...” “So, minutes after she leaves Mr. Ururyar’s apartment, she says that. She [334] relates a narrative that is consistent with what she told the police two and a half, two days later and it’s consistent with her evidence in court. There was no thinking about her story, there was no getting her story straight because her story was there from minutes after this occurred. And in terms of the ambiguity and the confusion around her consent, as she clearJy stated in court, she was not confused about whether or not the sex was consensual. Shewas however, conflicted about what she was going to do about it or what she should do about it or even was she perceiving it correctly. What she was clear about from the outset, it appears that she averted to the fact that she was aware that she did not actively say no. But what she says minutes afterwards, “I didn’t want it.” “I didn’t want it.” And the question that has to be asked of the accused is did he there’s no air of obtain her consent? There was absolute reality to any, or even a suggestion of honest but mistaken belief in consent because, on the accused’s story, she was an active not just an active participant, but she was the participate initiator.” — — —149— [335] “And that when they got into bed, he took his clothes off, he got under the covers and he took that moment when she initiated the kiss, she leaned into kiss him and he was like, oh, now’s the time because I’ve already decided super annoying at the pub, at both pubs, he says that the event happened twice, that she touched his leg at the first place, the Victory Café and then she touched his leg again at Paupers. He’s like super annoyed about that. That was, as he put it disrespectful. We’re not compatible. And then she, shrinking violet that she is, was obviously crushed by this disclosure and wept. And then he consoled her.” [336] “And then, but that is, that’s his own testimony. His own testimony. You want to talk about things that don’t make sense. Here we are, under the covers, taking the clothes off, you’re just too annoying. You’re just too aggressive here, I don’t, you know, and then, and then of course, he, his comforfing instincts take over and they lean in together and kiss each other and then she climbed up on top of him. Again, she is the aggressor. She’s the aggressor. And he was so reluctant, he didn’t even want to.” [337] “Page 24, beginning at line 9. Question: “I’m going to suggest the reason why you waited almost three days to report this incident is because you wanted to have time to think about your story, correct?” Answer: “Think about it? Of course, I was thinking about it. I was I was in denial, like most victims of sexual thinking about assault are. I was trying to figure out how this person who was seemingly nice to me at times could turn into such a violent individual with very little reason.” — “Question: “I’m going to suggest that trying to think about how you can [338] assert revenge on Mr. Ururyar for breaking up with you for his girlfriend?” Answer: “Sorry. It’s just so absurd to me. I would never destroy my life or someone else’s life and put everything on hold for an entire year for someone I had known for two weeks. Yeah, it’s completely false.” So that motive is rejected. It doesn’t exist.” Right after the description of, that Ms. Grey indicates that she felt that she [339] needed to take the emergency contraception, Plan B, which is consistent with her not having had consensual unprotected sex with Mr. Ururyar the night before because, as she said, she used keeping track of her cycle as a method of birth control. And then Ms. Bristow said to her, at line 18: — 150 — Question: “You were satisfied that you got the hot sex that you wanted, correct?” So, again, now she’s still being held to the hot sex promise. Answer: “That was not hot sex. There was no sex that took place.” Question: “And when you left Mr. Ururyar’s in the morning, you were quite disappointed that Mr. Ururyar had broken up with you, correct?” Answer: “No.” So, she’s really denied it so many times and consistently throughout.” “She doesn’t say I’m not sure whether I consented-or-not She-says-I don’t [340] know why it happened. She says she didn’t consent. She says I don’t think I told her I don’t think I consented to sex last night. And then she reiterates that she’s not sure exactly what happened and how that happened.” - “What she expresses concern clearly is about the fact that she didn’t [341] articulate her non-consent.” “In re-examination, Ms. Grey was asked about, was asked again about the [342] confusion issue. In other words, what exactly was she confused about when she articulated that to her friend and then related that to the police. In Volume IV, April the 11th, page 47, line 27: Question: “Okay, were you ever confused about whether or not you consented to that sexual activity?” Answer: “There was no confusion. I didn’t consent. I think the only thing, that I was really just a lot of self-blame because I didn’t really articulate no. So I think that was it. But I knew that that wasn’t a consensual activity, It was just that along with all the shock of the events that took place, that maybe I felt that must have done something and that was kind of where the confusion stemmed from. Not whether or not I consented.” “My friend would like you to see it as voluntarily producing inculpatory [343] evidence. That’s not what it is, is it? Because what is that tex. But this, and this is from Volume V, May 3rd, line page 114, and he recalls receiving that message from Ms. Grey in, you know, in the afternoon. The, “last night was fucked up”, and his response, — — 151 — I’m going to suggest to you was cautious. And at the top of page 114, question: “So, 20, like not quite half an hour later, you responded ‘okay’, right?” Answer: “Yeah, that’s right.” “Question: “And isn’t it true that you were abtually kind of trying to go pretty carefully ‘cause you fully knew what had taken place the night before?” Answer: “No, it wasn’t a matter of being careful in that regard. I just didn’t want her to feel like I was dominating the conversation or anything like that.” Well, that’s a very strange answer to someone who texts “last night was really fucked up”, on his evidence that it really doesn’t apply. But he just leaves it at that. So, he just says twenty-five minutes later, ‘okay’. And then, he waits. He doesn’t hear anything and five days later, after hearing nothing from her, he sent his final message. Page 117, Volume V, line 5. “And my friend who says that six or seven, you know, beers at their most is [344] not enough to be really that drunk, in Ms. Gray’s evidence, they were pints. That’s kind of a lot of beer and she said she also was on medication, she was intoxicated. “How it’s expressed is at the nub in this case because Mr. Ururyar’s position [345] is he gets under the covers after taking his clothes off, she makes a sexually aggressive move and then he, at that time, quietly asserts that they’re not compatible and they have different things in mind. And her narrative is that he was angry, she was drunk, she made Vsome bad decisions, she went to his place and he expressed after expressing contempt for her the whole way there, he expressed theultimate contempt, “I’m going to fuck you and you’re going to like it.” And that’s what he did. - “The evidence of the roommate, Mr. So, is really of no moment because [346] presumably presented because he was in the room right next door and there was he suggestion made to Ms. Grey that if she had if there had been yelling the way that she described, which she later sort of clarified and expanded upon and said that there was, yes, there was raised voices, there was some what you might call yelling but more, it was a more aggressive tone of voice. — The sort of implicit in that suggestion is that this roommate might have heard it and didn’t. But then the roommate testified that he never really hears anything because he’s used to sleeping in a — 152 — room with extremely loud noise right at the window. evidence is really of little value to you. So his The evidence of Ms. Moore is similarly of little value. Not only is she in a position where she fully makes it clear to the court that she believes everything that her fiancee says, but that you know, as far she’s concerned, he’s never lied to her, it was an open relationship but they didn’t discuss details. None of that is really in dispute, but it’s Mr. Ururyar’s evidence that doesn’t string together because he puts Ms. Grey as the sexual aggressor and that is mutually exclusive of being confused about whether or not consent took place, which the defence is also asserting on an alternative basis. MS. BRISTOW: “We have just a few points of re- examination, Your [347] Honour.” “The reason why I say that there’s no insignificant inconsistencies in terms [348] of the physical element of the sexual assault is that Ms. Grey couldn’t remember anything and, in my submission, that was intentional.” “The submission in terms of the intoxicatIon was that it was only in terms of [349] the extent that she wouldn’t have been blackout drunk and, in my submission, not able to consent.” “In terms of her demeanour in the courtroom and, in my submissions, her [350] demeanour showcased the argument that I’ve made on previous occasions that she wasn’t taking the process seriously.” THE COURT: “But again, if the submission is that Ms. Grey was the [351] aggressor, then we’re not worrying about consent.” [352] MS. BRISTOW: “Correct, if you believe Mr. Ururyar’s evidence.” [353] MS. BRISTOW: “Right. But if you don’t believe his evidence, just based on Ms. Grey’s evidence, in my submission, there is enough there to raise a reasonable doubt as to whether or not there was an honest but mistaken belief in consent, just based on what Ms. Grey said happened. And, so, one, in terms of the hot sex text, again, it wasn’t in terms of trying to say well, you’re promiscuous, so obviously that’s what you wanted. But you have to take into consideration all of the things that would have happened that night. So, for instance, that text, her evidence of asking Mr. Ururyar if she could spend the night.” — 153 — “And, so, and then didn’t now, I’m not saying that she had to, but she did [354] not say no or protest or you know pull away when, on her version of events, Mr. Ururyar put his penis in her mouth. — So, all of those taken into consideration together, and then again, the admission by Ms. Grey that it was possible that she would have moved up the bed when intercourse happened because he only pushed her back on the bed. So, all of that when you look at her evidence, in my submission, is enough to raise a reasonable doubt, as, just on her evidence whether or not there was an honest but mistaken belief of consent.” “Question: “So you have no curiosity about who he was about what he [355] was kind of up to while he wasn’t with you?” - [356] Answer: “I mean, we agreed not to talk about it. It wasn’t a matter of whether or not w&d be leaving our current partnership for somebody else, then obviously it would be an issue. But besides that, it didn’t really seem to be something that would matter.”” “In terms —just two more brief points. In terms of when my friend had read [357] out a passage about Mr. Ururyar not liking drunk girls or not finding them attractive, I think it would be appropriate to give context as to how that question came about.” “We also have to keep in mind the fact that this happened on January 31st [358] of 2015 and evidence from both Mr. Ururyar and Ms. Grey was that it was a very cold night. My friend had asked Mr. So some questions about whether or not he keeps his window open or if he can hear traffic. What, unfortunately was not asked to Mr. So is whether or not his window was actually opened on the night of January 31st, 2015.” History Evidence of a victim’s sexual behaviour and sexual predisposition ordinarily [359] is inadmissible. The “hot sex” text falls short of making anything apparent. The “hot sex” text can be read in many ways. If anything, Mr. Ururyar’s made his alleged guilt more likely, as perhaps providing a stimulus for his later alleged assault. The text messages do not prove that the complainant engaged in sexual [360] behaviour or misbehaviour or prove Ms. Gray had a sexual predisposition. Evidence is relevant if: (a) it has any tendency to make a fact more or less [361] probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. If interaction occurred it was not an invitation to have sex with her without consent. —154— Where an accused belief is based on patterns of conduct in a relationship, [362] care must be taken to consider whether this gives rise to a belief that Ms. Gray, e.g. was consenting or merely that she would consent. What can we imply as a result of a pre-existing relationship. The use of sexual history to support belief is greatly limited post-Ewanchuk. [363] The term “sexual activity” is not defined by the Criminal Code. What conduct falls within, and what conduct falls beyond, that definition? [364] In R. v. Zachariou, 2015 ONCA 527, the complainant alleged that she was sexually assaulted by two men. The accused’s defence was that the sexual activity was consensual and that the complainant agreed to a menage a trois. In examination in-chief, the complainant stated that she was not interested in “threeway” sex. The appellants alleged that months earlier, she told Zachariou she was interested in “threesomes,” kissed him and invited him and his girlfriend, (she was also her friend), to her home. The accused wanted to examine her about this. The trial judge held that the prior discussion about threesomes constituted [365] “prior sexual activity” and dismissed the application on the basis that its significant probative value did not outweigh its substantial prejudicial effect. The court of Appeal upheld the 276 ruling, including the finding that the discussion in which the complainant talked about being involved in a threesome was sexual activity. “Sexual activity” can be comprised of any activity which the evidence [366] establishes was done for a sexual purpose. It need not involve the touching of body parts. It need not be an “invitation” to touching. See R. v. J.I., 2015 ONCJ 61. The trial judge denied a 276 application (defence said proposed evidence went to her credibility (the ease to which she fabricated and was interested in sex) and the improbability that the complainant was sexually assaulted twice in a similar way). The trial judge further stated that the exclusion of evidence with respect to a [367] complainant’s sexual past was necessary as it had little or no probative value, and it could very well have the effect of deterring complaihants from reporting sexual assaults against them. The Court held in R. v. Beilhartz, 2013 ONSC 5610 that prior cuddling and [368] holding between the accused and the complainant was not “sexual activity” and not excluded by s. 276. However, the prior incident where the complainant took the accused’s hand and put it on her breast was clearly “sexual activity”. In R. V. Darrach, (2000] 2.S.C.R. 443 the Supreme Court noted that the [369] evidence of a complainant’s other sexual activity will rarely be relevant to support a denial that sexual activity took place (paras. 58 and 59) Such will rarely be relevant to establish consent because such a determination is only concerned with the complainant’s perspective. — 155 — As Justice Gonthier noted when explicitly stating 276 applies to non [370] consensual sexual acts, such evidence can equally defeat the purposes of the legislation by distorting the trial process when it is used to evoke stereotypes that a) women where were assaulted must have deserved it and b) are unreliable witnesses. Further, such evidence could deter people from reporting sexual violence. Credibility [371] We are all “experts” on human behaviour but some matters of behaviour fall outside common knowledge or require correction of stereotypes. It is difficult to distinguish between common knowledge and specialized knowledge in this context. Delayed disclosure is not a matter of common sense. See R. v. G.G., [372] [1977] O.J. No. 1501 (CA): “no court in Canada has gone as far as to state that a trial judge may take judicial notice of the fact that delay is common in cases of childhood sexual assault”. However, delayed disclosure is also a matter of common sense. See R. v. [373] D.D., [1998] O.J. No. 4053 (CA) (aff’dat (2000)148 C.C.C. (3d) (SCC)): “In permitting Dr. Marshall to testify, the trial judge did a disservice to the jury He underestimated its capacity to understand this behaviour and to make a judgment based on the juror’s collective knowledge of the behaviour of children and adults.” [374] In terms of judicial fact finding based on literature, see R: v. L.(WK), [1991] 1 SCR 1091. “It is well documented that non-reporting, incomplete reporting, and delay in reporting are common in cases of sexual abuse”. [375] Common sense is about the things we know that we know. The “uncanny ability to distinguish between the genuine and the specious”. See R. V. Pappajohn, [198012 S.C.R. 120 at 156, per Dickson, C.J. “Whata person remembersand how they are likely to remember and the manner in which the human memory works by reconstruction or suggestion or otherwise are everyday matters well within the knowledge ofjuries”. See R. v. Fong, [1981] Qd. R.90 at 95 (Q.C.C.AJ. See also R. V. Perlett, [2006] O.J. No. 3498 (C.A.), R. v. M.(B.) (1998), 130 C.C.C. (3d) 353 (CA.) and R. v. Francois, [1994] 2 S.C.R.827 at 840: “It was open to the jury, with the knowledge of human nature that it is presumed to possess, to determine on the basis of common sense and experience whether they believed the complainant’s — 156 — story of repressed and recovered memory, and whether the recollection she experience in 1990 was the truth”. Per McLachlin J. (as she then was) There is always the risk that common sense dressed up as science will [376] attract superordinate weight. “There is also a concern inherent in the application of [the necessity] criterion that experts nOt be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial becoming mothering more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.” See R. v. Mohan, [1994] 2 S.C.R. 9. There is of course informal judicial notice, common sense, common [377] knowledge, experience and formal judicial notice, fact(s) clearly uncontroversial, notorious, beyond any reasonable dispute or debate, indisputable, generally accepted or capable of immediate and accurate demonstration by resort to accessible sources of indisputable accuracy. When do issues of fact become questions of law? There exists no [378] presumption that all victims of sexual abuse will disclose the abuse immediately (R. v. D.(D.) (2000), 148 C.C.C. (3d) 41 (S.C.C.) at para.59, 63) The permissible scope of judicial notice varies according to the issue under [379] consideration. The closer a fact approaches the dispositive issue, the more a court would insist on compliance with the stricter criteria for judicial recognition. A court may take judicial notice of acts that are either: So notorious or generally accepted as not to be the subject of debate among reasonable persons; or Capable of immediate and accurate demonstration by resort to readily accessible force of indisputable accuracy. “Social fact” are non-adjudicative facts that relate to the factfinding process. “Legislative facts” are non-adjudicative fats that have to do with legislation or judicial policy. There may be greater scope for judicial notice in connection with both “social fact” and “legislative facts”, but a judge must still determine whether the alleged fact would be accepted by reasonable people who had properly informed themselves on the subject as not subject to reasonable dispute for the purpose for which it is to be used. It must also be kept in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition of the issue. See R. v. Spence, [2005] 3 S.C.R. 458. What constitutes “common knowledge” is to be judged by what is common [380] knowledge in the community where and when the case is tried. In R. v. Zundel — 157 — (1987), 31 C.C.C. (3d) 97 (Ont. C.A.); leave to appeal refused (1987) 1 S.C.R. xii, judicial notice may be taken, not only of evidential facts, but also facts in issue. A judge has a wide discretion concerning the matters of which s/he will take judicial notice and may take judicial notice of matters which s/he cannot be required to notice. The decision of the House of Lords on 23 October 1991 in R. V. R. found [381] “that in modern times the supposed marital exemption in rape forms no part of the law of England.” [1991] 3 W.L.R. 767. The House upheld the decision in the same sense by a five-member division of the Court of Appeal (Criminal Division), which had held, in a judgment delivered by Lord Lane CJ, that “the husband’s immunity no longer exists. We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.” [1991] 2 W.L.R. 1065, 1074B-C. [382] The principle that a woman or man should enjoy the unchallenged right to sovereignty over her or his own body appears to be so self-evident as barely fo need stating. Coercion should be seen as the antithesis of love, as well as of sex. A man who forces intercourse has broken the very trust and mutual respect that ought to exist. Whatever the difficulties, actual or imagined, the criminal law should as a general proposition at least aim to demonstrate and to delineate what conduct is or is not to be tolerated. Society no longer tolerates the medieval idea of a woman signing away her rights over her own body. [383] An alleged victim may find herself in the unenviable position of having to struggle or fight to sustain injuries in order that she may incur protection from the law. This is ludicrous and contrary to the way in which victims behave when attacked. It was Blackstone who wrote that: [384] “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into the of her husband: under whose wing, protection, and cover, she performs everything Commentaries (1765), I, 442 ...“ The idea that a woman or man is chattel is deeply revolting to modern [385] thinking. There are many misguided cänceptions of what constitutes a ‘real’ rape or • [386] how a “real” victim of sexual violence should behave (i.e. scream, struggle to the utmost and report immediately. No matter how sophisticated the law is, any allegation that derogates from the stereotype is likely to be approached with a degree of suspicion. • — 158 — [387] There may well be an unrealistic expectation as to how ‘real’ victims should behave. Blame the complainant for the attack where she/he was seen as behaving foolishly or inappropriately. Sexual violence is an intolerable intrusion into the most personal and [388] private rights of an individual. Sexual violence includes a continuum of conduct that includes sexual assault, and non-forcible sex acts. Sexual assault includes but is not limited to intentional and unwelcome touching. Consent is informed, freely given and mutually understood. If physical force is used there is no consent. A victim’s non-conformance with behavioural stereotypes should not impact the way we evaluate the complaint. The following factors, standing alone, are not dispositive in determining a victim’s credibility: delayed reporting, the victim’s emotional state (e.g., whether a victim appears calm versus emotional or visibly upset), the victim’s lack of resistance. Affirmative consent means the common element of a voluntary or freely [389] given agreement to engage in sexual activity. A lack of protesior resistance does not indicate consent. Consent to sexual activity should be consciously or knowingly given. Affirmative consent is affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in sexual activity. The definition of consent must, at a minimum, recognize that a) consent is a [390] freely given agreement to sexual activity; b) a person’s lack of verbal or physical resistance, or submission resulting from the use or threat of force does not constitute consent; c) a person’s manner of dress does not constitute consent; d) a person’s consent to past sexual activity does not constitute consent to future sexual activity; e) a person’s consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another; f) a person can withdraw consent at any time; and g) a person cannot consent to sexual activity if that person Is unable to understand the nature of the activity or give knowing consent due to circumstances. Consent can be given by words or actions, as long as those words or [391] actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. There are a host of complex issues involved with sexual and gender-based [392] violence. There is a need to appreciate the interplay of power, gender, and sexuality. See generally Lundy Bancroft, Why Does He Do That? Inside the Minds of Angry an.d Controlling Men (2003); Susan Brownmiller, Against Our Will: Men, Women and Rape (1993); Susan Estrich, Real Rape (1988). Why many people who experience domestic violence, choose not to report their abuser or choose not to cooperate with official efforts to hold abusers accountable, how domestic violence complainants can experience peer stigmatization and victim responses to trauma. — 159 — See Rebecca Campbell, Emily Dworkin & Giannina Cabral, An Ecological Model of the Impact of Sexual Assault on Women’s Mental Health, 10 Trauma, Violence & Abuse 225 (2009). We are often faced with the dynamics of counter-intuitive victim responses [393] to trauma, memory fragmentation and delayed recall, uncooperative victims, and the interplay of power/gender sexuality. See e.g. MattJ. Gray & Thomas W. Lombardo, Complexity of Trauma Narratives as an Index of Fragmented Memoiy in PTSD: A Critical AnalysIs, 15 AppI. Cognit. Psychol. Si 71-SI 86 (2001). Affirmative consent means affirmative, conscious, and a voluntary [394] agreement to engage in sexual activity. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a casual relationship between the persons involved, or even past sexual relations between them, should never by itself be assumed to be an indicator of consent. Ellen Pence and Michael Paymar’s training manual, which grew out of a [395] treatment program for batterers in Minnesota is entitled Power and Control: Tactics of Men Who Batter (1986). Pence and Paymar treat violence as a form of control and explicitly reject theories that focus on “some flaw in the abuser, the victim, the relationship, or all three. Id. At 64 83. - Women who resist types of control that have general societal acceptance [396] (for example, women who resist traditional roles in their lives) may evoke less sympathy by those who hold traditional values. If women are hurt for resisting domination, it may also be more difficult to explain the nature of the struggle in court simply because so many aspects of domination may appear normal and are subsumed under the label traditionalism. We need to understand the pressures of the legal system and create solutions that change cultural consciousness as well as law. Violence is a way of ‘using power’ in a relationship, an effort to control the [397] woman who is the recipient of the violence. The conception of battering is about power, rather than about incidents of violence or about the psychology of women who experience violence. Men want to direct and determine how their partner behaves, and the way they do this is through violence. They use violence to dominate, control, and force the women to conform to what they want. The question “why didn’t she leave” is actually an objectifying statement [398] that asserts that the woman did not leave. Asking this question often makes actual separations disappear. Law assumes, pretends, the autonomy of women. “Why didn’t she leave?” implies the woman could have left. We need to challenge the coercion of choices, reveal the complexity of experience and struggle, and recast the entire discussion of separation in terms of violent attempts at control. — 160 — [399] Acquaintance rape is forced, manipulated or coerced sexual intercourse by a friend or an acquaintance. It is an act of violence, aggression and power. [400] As often happens in cases of disputed sexual assault trials, there are two stories with vastly different implications for whether there was or was not consent. On the one hand, the accused believed this is a non-issue, and even an invitation. [401] For her part, Ms. Gray reported to the police that she felt she had been raped and that she had done nothing to convey consent. She supposedly did nothing to protest or stop his advance. Her only reaction was to stiffen. Where escalation to sexual intimacy might be expected to proceed differently than such contexts as dating, it reflects several failures of communication common to many cases involving disputed sexual interactions. First, there may be an honest disagreement: the male thinking the female was interested and had no objection, whereas she actually was not interested and the sexual advances were unwanted. Second, there was no direct explicit communication: either of what the male wanted and intended to do, or of what the female wanted or did not want him to do. Third, the male relies on indirect indications of interest, such as talking and assigning him the role of “boss,” and the lack of expression of non-consent. Fourth, relying on gradual escalation of intimacy, proceeding until when (or if) he received a ölear refusal. Fifth, the complainant relied on non-verbal behaviour to convey her nonconsent: and, unfortunately on non-verbal behaviour (i.e., “stiffening”) that could possibly be interpreted as excitement rather than discomfort. And, this ambiguous indicator may not occur until after the deed was done. [402] Disputed cases of sexual assault often involve deliberate and knowing violations of the victim’s unambiguous non-consent. But determining consent is not always an easy task. Despite the obvious risks of misunderstandings, initial communication of [403] sexual desire often occurs through non-verbal cues such as eye contact, escalating physical proximity, suggestive movements, or non-sexual touching, which then may progress to more explicit sexual touch, passionate kissing, undressing and so on. Explicit verbal requests to engage in sexual activity may well be less common, as are verbal requests for clarification or refusal of sexual advances. Sexual communication is further complicated by the tendency to [404] communicate refusal through indirect means: one of the most common being the failure to resist. Lack of resistance to sexual advances could have very different meaning for the two interacting individuals. It might be reflect reactions such as shock, confusion, shame, fear of repercussions of refusal,, and others. [405] Mutual alcohol consumption is not a sign of sexual intent or consent. When sexual assault is alleged, both parties are asked to recount a wealth [406] of detail: such as details of the relationship and interactions leading upto the event — 161— in question; specific behaviours and statements made during the event; emotions, reactions to and interpretations of the others’ behaviours and statements; their own intentions, subjective thoughts, and much more. Many such details become important only in hindsight, may not have been attended to at the time, and therefore may never be encoded into memory. Moreover, though the exact manner in which consent or refusal was conveyed is crucial in legal contexts, memory tends to be for the gist of what happened, rather than the exact details; and this is particularly true for memory conversation. What is most likely to be remembered is each party’s version of the gist of the events, and their general reactions to and interpretations of their own and the other’s actions. To complicate matters further, human memory is reconstructive in nature, [407] and not only fallible, but malleable and susceptible to suggestions and bias Memories of past events also tend to be distorted so they line up with one’s beliefs about oneself, others, or how things work in general. Is consent implied once a certain point is reached (such as when the [408] complainant has agreed to go to the accused’s apartment, or talk about sexual topics), and have unwanted sex because they feel they have given up the right to refuse by such behaviours? Some may engage in sex for fear they will be raped if they don’t participate [409] voluntarily. It is important to understand the unique dynamics, distinct emotional [410] trauma, and realities of sexual assault. Because many assaults are committed by someone who was formerly [411] trusted, many victims/survivors do not label their experience as being a sexual assault or rape. There are a number of reasons for individual delay or the failure to report [412] sexual assault, including that they: - — — — — — — Do not see the incidents as serious enough to report Are not clear that a crime was committed Do not want family to know Fear act of retaliation Fear of police treatment Lack of proof about the incident See Antonia Abbey et al., The Relationship Between the Quantity ofAlcohol [413] Consumed and the Severity of Sexual Assaults Committed by College Men, 18(7) J. — 162 — of Interpersonal Violence 813 (July 2003) (“Asmall amount of alcohol eases tension, a large amount removes inhibitions, and a still larger amount prevents the potential victim from resisting the aggressor.”). What makes someone a perfect target in the context of alcohol-facilitated [414] sexual assaults may make that person a poor witness in any ensuing proceedings due to his or her inability to remember part or all of what happened. One of the more challenging (and ever-present) issues to evaluate in sexual [415] assault is the question of consent. Sexual assaults may involve alcohol consumption by one or both parties. Frequently, parties to. an incident will have limited or no memory of the events in question, and the court will be required to obtain and evaluate information provided by other witnesses or other corroborating evidence. Asking “Do you want to have sex with me?” is not even enough. It should be the responsibility of both intimate partners to clearly give [416] consent for each sexual act, and for each time the sexual encounter occurs. Talking with one another while engaged in sex need not seem like a “cold shower.” It’s intimate. And having “hooked-up previously and had a satisfying sexual experience does not automatically mean a follow-up sexual encounter is acceptable. Too often, we have preconceptions, and misconceptions, about how we [417] believe a person who has been sexually assaulted should behave. Why, they ask, did s/he wait to report the assault? Why did s/he first say that s/he didn’t want to take any action, but now says s/he does? Why does s/he describe events in a piecemeal fashion, rather than in a neat chronology? Why does s/he come forward. and state that s/he now remembers more about an event that s/he didn’t tell us in her interview with the police? Understanding responses to sexual assault is critical for those whose [418] expectation of “normal” responses to a traumatic event may not be evident in an individual complainant. For example, a delay in reporting, which is not uncommon in sexual assaults, may be misconstrued and interpreted as the victim not being truthful and lying about the attack. See Patricia L. Fanflik, “Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive ?“ (National District Attorneys Association, 2007), p. . Additionally, those who have experienced sexual assault 9 develop varying coping strategies that not only differ by individual by may also differ within the same individual by day. “[\f]ictim reactions are often scrutinized because of the variability of behaviours. For example, a victim might appear very attentive and cognizant at one point in time and then appear apprehensive or preoccupied at another, leading some observers to question the creditability of the victim.” Fanflik, at p.14. When presented with a report of sexual assault that involves alcohol, there [419] may be the initial presumption that the complainant was intoxicated and later regretted what happened, rather than thinking that what happened was an assault. —163— In many sexual assaults, only two people, the complainant and accused are [420] present for the incident at issue, and it may be difficult to reach a conclusiOn on the issue of consent based solely on the accounts of the parties. Technology offers many more opportunities to uncover contemporaneous [421] information, and even documentation, regarding an assault. Text and voicemail messages exchanged between the parties before, during and after an event are often highly relevant and assist in explaining the parties’ perspectives. It is highly unlikely that a single piece of evidence, standing alone, will be dispositive, and it is important not to overlook the existence of objective evidence that might be used to assess whether a complainant had the ability to consent and did in fact consent. The court is the sole judge of the credibility of the witness. We should give [422] the testimony of each witness whatever degree of belief and importance we reasonable believe it is entitled to receive. If there are conflicts in testimony, it is our function to resolve those conflicts and determine where the truth more likely than not lies. We may believe everything a witness says, or only part of it, or none of it. Often it may not be what a witness says, but how the witness says it that might help in determining whether to accept the witness’s version of events as believable. [423] A witness may say something that differs from what he or she has said on another occasion. In that event, does a contradiction exist, and, if so, whether that contradiction is meaningful to evaluation of the witness’s credibility? In deciding whether a contradiction has any impact of a witness’s credibility people sometimes forget things. Therefore, is a contradiction the result of an innocent lapse in memory or/and intentional falsehood, and that may depend on whether the contraction has to do with small fact or an important fact? [424] We are entitled to draw inferences from the evidence. Inferences are sometimes called circumstantial evidence. Drawing inferences is something we do every day. We make small steps in reasoning in which we take some known information, apply life experience to it, and draw a conclusion. Findings It was of obvious need to review the evidence of the accused, Ms. Gray, [425] both in-chief and in cross-examination and re-examination. [426] To begin with, on January 30-31, 2015, Mr. Ururyar had a girlfriend. We heard from her. Alison is her name. [427] To begin with, on January 30-31, 2015, Mr. Ururyar had an open relationship with his girlfriend Alison. —164— To begin with, on January 30-31, 2015, Mr. Ururyar was on his fifth [428] “additional” girlfriend since the summer of 2013, about an 18 month period. This was with the complainant Mandi Gray. I exclude Alison from the five. V To begin with, on January 30-31, 2015, Mr. Ururyar had a casual [429] relationship with number five, the complainant. To begin with, on January 30-31, 2015, Mr. Ururyar had an apparent [430] interest in the having a threesome, this according to his girlfriend Alison, and his then friend, Mandi Gray, according to Gazem (a former friend). To begin with, on January 30-31, 2015, Mr. Ururyar had been a graduate [431] student, a colleague of Ms. Gray at York University. V V To begin with, on January 30-31, 2015, Mr. Ururyar had ended or was [432] ending his relationship (may have been number four) with the woman known as Gazem. V To begin with, on January 30-31, 2015, Gazem and Ms. Gray had known [433] each other. They were basically acquaintances. Prior to January 30, 2015, Ms. Gray and Mr. Ururyar knew each other two [434] weeks, only two weeks. How they met has been described. Their relationship during the two weeks is arguably reflected in the text between them. “I never considered him my boyfriend, nor did I want him to be my boyfriend or anything. I just enjoyed his company for the time being.” (page 10 of the Interview with the police on February 2, 2015. V V The famous or infamous text sent by Ms. Gray to Mr. Ururyar at 7:55 p.m. [435] on January 30, 2015 “to come drink and then we can have hot sex”, was the subject of much discussion and interpretation. Mr. Ururyar was not feeling well that day (January 30, 2015) and in fact, that [436] was not the only time he hadn’t felt well but between the Victory Café, Paupers he managed to find his way out of his apartment door and arrived at the Victory Café In between Ms. Gray consuming some 7 or 8 beers from about 8:00 p.m. on [437] January 30 until when they were kicked out of Paupers at closing time, at about 2:30 a.m., on January 31, 2015 and Mr. Ururyar having a few beers after arriving at the Victory Café at about 9:00 p.m., the story from Mr. Ururyar’s perspective begins in earnest. Firstly, no doubt about it let the hot sex begin. He was very much inclined [438] and he would try his best but, he wasn’t sure he would be up to standards. —165— As if to awaken him from anything that might dissuade him otherwise, Mr. [439] Ururyar gave evidence that Ms. Gray personally assaulted him. Yes, assaulted him, groped him, in fact at the Victory Café. That upset him as he has testified, and according to Mr. Ururyar, Ms. Gray again, again sexually assaulted him at Paupers, another upsetting event he told us and this again as a consequence of Ms. Gray’s aggressive, although not non-stop behaviour. Mr. Ururyar, the possibility of sex later that evening presumably being [440] stimulated somehow by Ms. Gray, at the Victory Café it never happened. Then a booth at Paupers, groping him under the table, it never happened. In spite of these attacks on his person according to Mr. Ururyar, they walked [441] from the one bar to the other with others and then they finally left Paupers past closing time where upon Lacey (Ms. Gray’s friend) grabbed a cab and went home. According to Mr. Ururyar, he and Ms. Gray then walked 20 30 minutes again happily arm in arm from Paupers to his residence talking about the weather. According to him Mandi asked “Am I not good enough for you?” And he said “yes, you are”. It was very disappointing to Mr. Ururyar that Lacey did not join them to his place as described by Ms. Gray. She has reflected on Mr. Ururyar’s anger and tone of voice on the walk. — Two supposedly happy people, a relatively newly formed albeit number five [442] for him, admittedly a relatively casual relationship as I find, on their way to his place most possibly to have sex, if he was up it. Why not? Lots of drinking, at least by Ms. Gray, happy students, positive [443] strike vote, and who knows what else to come? They arrived at his place, got into bed according to Mr. Ururyar, got under [444] the covers, and what happens? Ms. Gray, according to Mr. Ururyar moves to kiss him. He says he moved away. Sexual assault number three appears. A normal inclination by Ms. Gray? A sign of affection? Some might even call it foreplay? The first step to sex? And then of course we heard according to Mr. Ururyar what he said to Ms. Gray. Ms. Gray, if not crushed may have felt rejected and hurt it would appear [445] from the evidence of Mr. Ururyar. She starts to cry, soothing words an apology by him, apparently are exchanged, then sexual assault number four committed by Ms. Gray, obviously, if not unexpected on Mr. Ururyar, “pulling down his pants and performing oral sex on him”. For Mr. Ururyar this was consensual sex, better, given how aggressive Ms. Gray had been all evening. And, and this should be the last time they would sleep together. He was up to it, it seems, and Ms. Gray’s aggression never, never, stops. His description is vivid. Before you know it, it was the morning. Ms. Gray leaves to go home. , — 166 — According to Mr. Ururyar, Gazem had mentioned to him at Paupers that Ms. [446] Gray might be interested in a threesome. He had been interested in such ideas,, we know that. Was this before grope number two, after grope number one? We are not sure. He is not sure. [447] Mandi, Lacey, and Mr. Ururyar add up to three except of course, three minus one, if you are serious and really want a threesome equals zero. The taxi went and the threesome went with it. [448] Mr. Ururyar gave evidence that coincidentally just a few days after January 31, 2015 he was asked by Gazem how the threesome went? He said he told Gazem it never happened. That’s what he tells us. [449] Mr. Ururyar, it would appear, at least to Mr. Ururyar, had been victimized by• Ms. Gray, he, the victim of her àbsessive, aggressive sexual and assaultive behaviour including, apparently according to Mr. Ururyar, going so far as desirous of a threesome. According to Mr. Ururyar and Gazem the messenger, Mandi was interested in a threesome. That is what Mandi may have been planning? Did Mandi encourage Lacey to come to Mr. Ururyar’s place? No. Did Mandi discourage Lacey Was Mr. Ururyar upset that Lacey, according to him, from coming to his place? did not come back to his place for drinks with Mandi? According to him, No. . [450] Mr. Ururyar gave evidence as we heard that once back at this place he was quite upset with Mandi. What a disappointment? I tell you NOT to grope me (touch me in public). You say, OKAY and instead you are even more aggressive groping me again, a second time. I tell you we are done, and why we are done and you cry. “We are no longer compatible”. Alison is moving back from Montreal he says in April 2015. Did that ever [451] stop him before? Have to keep these things hush hush, Alison might find out, as if he cared. Devoted to Alison, when and where? How? Tears are supposedly flowing but that doesn’t stop Mandi. She even apologizes to him, he tells us. Kisses according to Mr. Ururyar she pounces, even later and ready for sex with him doggie style. [452]’ This causal relationship has incredibly gone out of control. It is all over but he tell his counsel, consensual sex with Mandi, the aggressor. Mandi in bed with Mr. Ururyar according to him, his clothes mostly on. [453] What’s the rush to take off his clothes? Mandi only wearing a tank top, he thinks. The accused wearing a long sleeved shirt and long underpants. Mandi under the covers first. She tries to kiss him. He moves away. You are bad (he is thinking). He is not, not happy with her behaviour. He admonishes her. We are not compatible. It is over. Mandi apologizes and cries. He says he tries to console her, he holds her. He touches her arm and back. “We lean into each other. We kiss. He rolls on his back. She pulls down his pants, removes his shirt and begins oral sex. He asks — 167 — her. Do you want me inside of you? Yes, doggie style no condom. Was he tired? Just wanted to sleep? Maybe upset? Maybe angry? Maybe all of the above. Reject Mandi (he did it). Tell her off (he did it). We are done (he said it). In any event, sex they had according to Mr. Ururyar, coupled with Mandi’s [454] aggressiveness. Think about it, positive emotions feel so good. Rejection usually hurts, at least initially. Before allof this of course, as indicated, he tells Mandi this is the last time for us. His version, and I stress his version, without reality. It never, never happened. The most intimate relationship may, may be, the one between your head [455] and your heart but Ms. Gray according to Mr. Ururyar reacted differently. Didn’t matter to Mandi what he said or did, we are going to have sex. According to him no heartbreak, no broken heart. Mandi’s motto, according to Ms. Ururyar, let’s do it. Such a story, scenario we heard from Mr. Ururyar from beginning to end [456] begs credulity, a feeble, feeble attempt in hindsight that is unbelievable and incomprehensible. [457] It never happened this way. None of it. The groping never happened. Did Ms. Gray grope him. No. That was not [458] the nature of their relationship. That was not Ms. Gray. Groping incident number two at Paupers. Did it happen? Illogical, and [459] why? Based on what? Ms. Gray couldn’t keep her hands off him? She couldn’t wait to grab him? She didn’t even spend much of the evening’ near him, let alone grope him at each bar. What a picture painted by the accused except a false picture and in between the groping, how about a threesome? Mandi and Gazem, Gazem and Mr. Ururyar, Mr. Ururyar, Mandi and [460] presumably Lacey. Another obscene fabrication. Hot set never equated with a threesome to Ms. Gray. We don’t even know what the phrase “hot sex” means. Mandi approaching Gazem to speak to Mr. Ururyar. Why? Were not [461] Gazem and Mr. Ururyar basically done as a couple. Mandi knows how to speak. Never happened. Speaking to Gazem after January31 about the threesome, never happened. Lovey, dovey on the way home, never happened. Attacking Mr. Ururyar [462] under the covers in bed, never happened, again a great illusion or delusion of Mr. Ururyar but also a joke. A fabrication, credible, never. I must and do reject his evidence. I do so without hesitation. To quote McLachlin, J. (as she then was) on the [463] credibility of a witness in R. v. Marquard, [1993] 4 S.C.R. 223, at para. 49: — 168 — “Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis.” [464] “The test must reasonably subject the story to an examination of its consistency with the probabilities that surround the current existing conditions”. See Fatyna v. Chorney, [1952] 2 D.L.R. 354. Reasons relating must also, of course be provided by a trial judge. See R. v. Sheppard, 2002 S.C.C. 26, [2002] 1 S.C.R. 869 and R. v. Braich, 2002 S.C.R. 27, [2002] 1 S.CR. 903. The reasons must explain why the decision was reached by establishing a [465] logical connection between the evidence and the law on the one hand and the conclusion on the other. See R. V. R.E.M., 2008 S.C.C. 51 at para.41 and R. v. Lifchus, [1997] 3 S.C.R. 320. Our assessments of plausibility depend upon our sometimes very modest [466] store of personal or learned experience. The beyond a reasonable doubt standard is linked to the presumption of [467] innocence. This was identified in R. v. LIfchus, supra (1997), 1997 CanLIl 319 (SCC), 118 CCC (3d) 1, by Mr. Justice Cory of the Supreme Court at para. 27:, in the following language: First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to If the all criminal trials: the presumption of innocence. presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. ... The Court in Lifchus defined the expression “beyond a reasonable doubt”, at para. 39, as follows: The term “beyond a reasonable doubt” has been used for a very long time and is part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must • not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. See also R. v. Starr, 2000 S.C.C. 40 (CanLll), 147 C.C.C. (3d) 449, at para. 242 per lacobucci, J.: —169— In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. [468] The wle of reasonable doubt applies to the credibility issue. In R. v. WD., supra, 1991 CanLIl 93 (SCC), 3 CR (4th) 302, at para. 10, the Supreme Court of Canada sets out the appropriate instructions on the issue of credibility. [469] In R v. White, 1947 CanLll 1 (SCC), 89 CCC 148, at page 151, the Supreme Court held that: The issue of credibility is one of fact and cannot be determined by following a set of rules that are suggested to have the force of law. Mr. Justice Estey observed: The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct and demeanour in determining the question of credibility. [470] The defence submits that this is a “classic” WD. (referring to R. v. W(D.), supra, 1991 CanLIl 93 S.C.C., [1991] 1 S.C.R. 742) situation and that this Court should not simply prefer one version of the events to the other, but rather focus on whether it is possible that the accused testimony is true so his testimony capable of belief? He argues that it is that it is internally consistent and while it is opposite to that of the complainant there is no other objective evidence which discredits the defendant’s testimony other than it being at variance to the complainant’s testimony and therefore there is no reason to reject it. Counsel submits at the very least, that there is a reasonable doubt raised and thus the accused should be acquitted. [471] This is a case where credibility is the primary issue. It is, as the accused argues, a “W.D.” situation, R. v. W(D.)., supra, the application of the principle of proof beyond a reasonable doubt where credibility is the central focus are many sexual assault prosecutions thIs is such a case. [472] The Crown of course has the burdeh of proof and that onus remains with the Crown throughout the trial, It never shifts. The burden is to establish proof —170— beyond a reasonable doubt. It is not necessary for me to again recite the test articulated by Justice Cory in WD., supra. The caselaw make it clear that a case of this nature is not a credibility contest between witnesses. That would erode the operation of the presumption of innocence, seeR. V. L.H., 2007 CanLil 13703 (ON SC), [2007] O.J. No. 1558 and ignore the concept of reasonable doubt. It is not about whose evidence is more consistent nor does accepting the complainant’s testimony end the inquiry. [473] In this case the central focus is around the second step of the W.D. analysis, because in the first analysis I am not prepared to simply believe the accused’s testimony. To make that determination of whether the accused’s testimony should be believed it is necessary to evaluate it relative to other evidence, including the testimony of the complainant. Of course to “believe” something means “to accept [it] as being true”, see the Canadian Oxford Dictionary. Even if I do not believe or accept as true the accused’s testimony does it [474] raise a reasonable doubt? Can the accused’s testimony be rejected, because it is not capable of belief? [475] The point of W.(D.)’s first question is not to isolate the accused’s testimony for assessment, but to ensure that the trier of fact actually assesses the accused’s credibility, instead of marginalizing it as a lockstep effect of believing the Crown witnesses. [476] There must be a specific assessment of the accused testimony and a determination of whether it is capable of being believed, or disbelieved or rejected, and whether, at the end of the case, the Crown has proven the allegations beyond a reasonable doubt. If the incident occurred as the complainant described it was clearly without [477] consent and no air of reality exists for any mistake about consent. Ms. Gray did not communicate there was consent. This does not end the inquiry, and simply because I find the complainant’s [478] testimony compelling, is not determinative of the matter. I listened and reviewed the accused’s testimony several times. His evidence is at total variance with that of the complainant. See e.g. Mr. Justice Binnie, “Judicial Notice: How Much is Too Much?” in Alan W. Bryant, Marie Henein and JanetA. Leiper, Law Society of Upper Canada Special Lectures 2003, The Law of Evidence (Toronto: Irwin Law, 2004). [479] Even “if I do not believe the testimony of the accused but am left with reasonable doubt by it, I must still acquit.” Again any judgment must not be based on a choice between the accused’s [480] and Crown’s evidence, but on whether, based on the whole of the evidence, the court is left with a reasonable doubt as to the accused’s guilt. See R. v. C.L. Y, 2008 S.C.C. 2. — 171 — Mr. Ururyar denies he sexually assaulted Ms. Gray. Consent is therefore [481] not an issue and more importantly Ms. Gray’s historical text, even if alleged by Mr. Ururyar, may well be irrelevant. Further since (it never took place) consent is a non-issue, there is no factual [482] foundation, if argued, of any defence of honest, but mistaken belief in consent, although this defence was not advanced at trial. See supra, R. v. Ewanchuk, [1999) I S.C.R. 330, at paras. 41-49. Reference is made to Ms. Gray’s lack of memory at the initiation of sexual [483] activity under the covers. It is argued that Ms. Gray has little memory of being under the covers, etc. with Mr. Ururyar on January 31, 2015. Therefore, how could she give evidence as to her not being an active and willing participant?. His own evidence should be accepted since there was no one else there. His evidence, he submits, was therefore unconträdicted. Unanswerable testimony as an evidential submission is not the law. Consent again is a non-issue. According to the accused, Ms. Gray Was the aggressor virtually throughout the evening and early morning. Ms. Gray has lapses in her memory, but her evidence, as I find, is credible and trustworthy. Ms. Gray specifically remembered what Mr. Ururyar did to her as soon as they returned to his place and when she sat on his bed. The interaction with Ms. Gray as he argues never occurred. He says he never sexually assaulted her. I reject Mr. Ururyar’s evidence. I cannot accept his evidence. His evidence [484] about Ms. Gray’s behaviour the evening of January 30, 2015 and the early morning of January 31, 2015 does not raise any reasonable doubt in my mind. On all the evidence, I am satisfied that they went into his bedroom, Ms. Gray sat on his bed and he took advantage of her. I have assessed the significance of any inconsistences in Ms. Gray’s [485] testimony. I believe Ms. Gray, notwithstanding any inconsistencies which I find are minor, and of no consequence in this court’s accepting her evidence. See R. v. Francois, [1994] 2 S.C.R. 827 at 836 and R. v. W. H., 2013 S.C.C. 22 at para. 32, [201312 S.C.R. 180. The mere existence of internal inconsistencies in the testimony of a witness or inconsistencies between witnesses is not itself determinative of the credibility of the witness or the accuracy or reliability of their testimony. Mr. Ururyar was well into the idea of sex the evening of January 30, 2015 [486] and January 31, 2015. If it could be a threesome that would be even better. Mandi Gray was the wounded one, intoxicated, alone and vulnerable. It was Mandi Gray the accused chose to rape. This was not a bad dream. And on top of that Mandi is blamed, blamed because there were no symbols that it had not just been a bad dream unless there was a reminder from the hospital in her drawer. The court was constantly reminded, told, as if to traumatize the helplessness, the only one we can believe is Mr. Ururyar, because she, she Ms. Gray, cannot remember. What a job and a real bad one, trying to shape the evening. We must not createa culture that suggest we learn that rape is wrong through trial and error. —172— How can you prove it? You don’t remember. He knows you don’t [487] remember. He is going to write the script and he did. Testimony incomplete, memory loss, etc. etc. And, of course, typically, no dialogue in the story. One full sentence by Ms. Gray? What is it? No power, no voice, defenceless. [488] To listen to Mr. Ururyar paint Ms. Gray as the seductive party animal is nothing short of incomprehensible. He went or tried to go to any length to discredit Ms. Gray, if not invalidate her. Such twisted logic. [489] Despite considerable research and publications in professional and popular journals concerning rape, [rape] myths continue to persist in common law reasoning. See Sarah Ben-David & Ofra Schneider, Rape Perceptions, GenderRole Attitudes, and Victim-Perpetrator Acquaintance, 53 Sex Roles 385 (2005). [490] There is no demographic profile that typifies a rapist. There is a danger of stereotyping rapists. When the accused is a friend of the victim and uses that relationship to gain, and then betray the complainant’s trust; there may be a need to be informed in order to recognize and understand the accused’s predatory behaviour. [491] No other crime is looked upon with the degree of blameworthiness, suspicion, and doubt as a rape victim. Victim blaming Is unfortunately common and is one of the most significant barriers to justice and offender accountability. Victim blaming can be expressed in several ways: victim masochism (e.g., she enjoyed it, wanted it), victim precipitation (e.g., she asked for it or brought it on herself), or victim fabrication (e.g., she lied or exaggerated). See Sarah Ben-David & Ofra Schneider, Rape Perceptions, Gender Role Attitudes, and Wctim-Perpetrator Acquaintance, 53 Sex Roles 385, 386 (2005). [492] Without consent, “No” means “No”, no .matter what the situation or circumstances. It doesn’t matter if the victim was drinking, out at night alone, sexually.exploited, on a date with the perpetrator, or how the victim was dressed. No one asks to be raped. The responsibility and blame lie with the perpetrator who takes advantage of a vulnerable victim or violates the victim’s trust to commit the crime of sexual assault. Rape is an act of violence and aggression in which the perpetrator uses sex [493] as a weapon to gain power and control over the victim. It is too common to redefine rape as sex and try to capitalize on the mistaken believe that rape is an act of passion that is primarily sexually motivated, It is important to draw the legal and common sense distinction between rape and sex. There is no situation in which an individual cannot control his/her sexual • [494] urges. See Barbara E. Johnson, Douglas L. Kuch & Patricia R. Schander, Rape Myth Acceptance and Sociodemographic Characteristics: A Multidimensional Analysis, 36 Sex Roles 693, 696 (1997). Sexual excitement does not justify forced —173— sex and a victim who engages in kissing, hugging, or other sexual touching maintains the right to refuse sexual intercourse. Rapists do not rape because they want to have sexj many rapists also may have partners with whom they engage in consensual sex. We must not confuse sex with sexual violence and aggression. Most adult [495] rape victims do not have any non-genital injuries from sexual assaults. See Callie Rennison, supra, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, Bureau of Just. Stat., U.S. Dept of Just. (2002) (assuming that every rape victim suffers injury from the commission of the rape and referring to victims who suffered additional injuries in addition to the rape itself). [496] Rape is a life-threatening event and victims make split-second decisions about how to react to sexual viçlence in order to survive. Some victims respond to the severe trauma of sexual violence through the psychological phenomenon of dissociation, which is sometimes described as “leaving one’s body,” while some others describe -a state of “frozen- fright,” in which they become powerless and completely passive. Physical resistance is unlikely in victims who experience dissociation or frozen fright or among victims who were drinking or using drugs before being assaulted. Kimberly Lonsway, Joanne Archmbault & David Lisak, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, 3 The Voice, Nat’l DistrictAttorneysAss’n Newsletter, 8 (2009) available at http://www.ndaa.org/publlcations/newsletters/the voice vo 3 no 1 2009.pdf. To a rape victim, a threat of violence or death is immediate regardless of [497] whether the rapist uses a deadly weapon. The absence of injuries might suggest that the victim failed to resist and, therefore, must have consented. The fact that a victim ceased resistance to the assault for fear of greater harm or chose not to resist at all does not mean that the victim gave consent. Each rape victim does whatever is necessary to do at the time in order to survive. [498] Victims of sexual assaults respond in various ways, including the manner in which they report incidents, if at all. Many victims choose not to report their victimization because they believe that it is a private or personal matter, fear the defendant, or believe the police are biased against them. Callie Rennison, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, Bureau of Just. Stat., U.S. Dept. of Just. (2002). [499] As far back as the Magna Carta, it was recognized that judges should have a good knowledge of the law. This knowledge extends not only to substantive and procedural law, but to the real life impact of law. As one scholar put it, law is not just what it says; law is what it does. See Robert A. Samek, “A Case for Social Law Reform” (1977), 55 Can. Bar Rev. 409 at 411. Sustained efforts to maintain and enhance judging are important elements of judicial diligence. —174— The cycle of violence conforms to the Walker “cycle theory of violence” [500] named for clinical psychologist Dr. Lenore E. Walker, the pioneer researcher in the field of the battered wife syndrome. Dr. Walker first described the cycle in the book The Battered Woman, (New York: Harper Colophon Books, 1979). In her 1984 book, The Battered Woman Syndrome, 2nd ed. (New York: Springer Publishing Co., 2000). Dr. Walker reported the results of a study involving 400 battered women. Her research was designed to test empirically the theories expounded in her earlier book, “The tension reduction theory states that there are three distinct phases associated in a recurring battering cycle: (1) tension building, (2) the acute battering incident, and (3) loving contrition. During the first phase, there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name-calling, other mean intentional behaviours, and/or physical abuse. The batterer expresses dissatisfaction and hostility but not in an extreme- or maximally explosive form. The woman attempts to placate the batterer, doing what she thinks might please him, calm him down, or at least, what will not further aggravate him. She tries not to respond to his hostile actions and uses general anger reduction techniques. Often she succeeds for a little while which reinforces her unrealistic belief that she can control this man . . [501] The tension continues to escalate and eventually she is unable to continue controlling his angry response pattern. “Exhausted from the constant stress, she usually withdraws from the batterer, fearing she will inadvertently set off an explosion. He begins to move more oppressively toward her as he observes her Tension between the two becomes unbearable” (Walker, 1979, withdrawal. page 59). The second phase, the acute battering incident, becomes inevitable without intervention. Sometimes, she precipitates the inevitable explosion so as to control where and when it occurs, allowing her to take better precautions to minimize her injuries and pain. . . . “Phase two is characterized by the uncontrollable discharge of the tensions [502] that have built up during phase one” (Walker, 1979, page 59). The batterer typically unleashes a barrage of verbal and physical aggression that can leave the woman severely shaken and injured. In fact, when injuries do occur, it usually happens during this second phase. It is also the time that police become involved, if they are called at all. The acute battering phase is concluded when the batterer stops, usually bringing with its cessation a sharp physiological reduction in tension. This in itself is naturally reinforcing. Violence often succeeds because it does work. Battered women do not enjoy abuse, do not provoke it and do not have [503] psychopathology, Indeed, battered women have no psychological profile (at least before they are abused). Being female is what makes a woman vulnerable to being 175 — — abused. There is no way to predict which women will become victims except by knowing the abusive history of their lovers. It is, of course, true that the assessment of the credibility of a witness is. [504] more of an “art than a science”. The task of assessing credibility can be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. It has been held that “[t]he issue of credibility is one of fact and cannot be determined by following a set of rules.” See White v. The King, 1947 CanLIl 1 (SCC), [1947] S.C.R. 268. It is the highly individualistic nature of a determination of credibility and its dependence on intangibles such as demeanour and the manner of testifying that leads to the well-established principle that appellate courts will generally defer to the trial judge’s factual findings, particularly those pertaining to credibility. V Neither the parties nor the informed and reasonable observer should be led [505] to believe by the comments of the judge that decisions are made based on generalizations. It is important that judges be aware of the social reality that support decisions based on an examination of the objectives of the legislation before him or her. One statement of the content and purpose of this doctrine is outlined in Varcoe v. Lee eta!. (1919), 180 Cal. 338, 181 P.223, at page 226: that the matter be one of “The three requirements common and general knowledge, that it be well established and authoritatively settled, be practically indisputable, and that this common, general, and certain knowledge exist in the particular jurisdiction all are requirements dictated by the reason and purpose of the rule, which is to obviate the formal necessity for proof when the matter does not require proof.” . . . — — As Edmund M. Morgan noted in “Judicial Notice” (1944), 57 Harv. L. Rev. [506] 269, at page 272: V V must be assumed to have a fund of general the judge information, consisting of both generalized knowledge and knowledge of specific facts, and the capacity to relate it to what he has perceived during the proceeding, as well as the ability to draw reasonable deductions from the combination by using the ordinary processes of thought. That fund of general information must be at least as great as that of all reasonably well-informed persons in the community. He cannot be assumed to be ignorant of what is so generally accepted as to be incapable of dispute among reasonable men.” “... ... V Supra paragraphs 500-506, see Children’s Aid Society of Toronto v. C. [507] (S.A.), 2005 ONCJ 274, Zuker, J., upheld on appeal at 2005 CanLIl 43289 (ON SC). In some cases one may be able to equate judicial experience with judicial notice. — 176 — I Know Why the Caged Bird Sings [508] Rape in the case of Maya Angelou, is used to reflect the suffering of her race, and to Maya Angelou a bird struggling to escape its cage, trying to understand and respect both her body and her words. Virginia Woolf suffered from what she called “looking-glass shame”, an aversion to seeing herself in mirrors. How do we understand our own sufferings, with what words and to what ends? [509] Going to Women’s College Hospital, then Mount Sinai Hospital, waiting, 48 hours? 72 hours to go to the police? Is too long ever too long? Does pain have a time limit? With or without all the texts, Mr. Ururqar raped Ms. Gray. We don’t need the “missing” text to know this. Crying in those early morning hours of January 31, 2015 and being in a fetal position. This evidence I accept. Rape it surely was. The experience of rape invades not only the body but the mind of its [510] victims. Dissociation kicks in, often with great efficiently. And often there is a desperate wish by the victim to please the rapist, a desperate hope that the rape will end and maybe just maybe, I will survive. Often rape victims become their own legal advocates, one opportunity perhaps for retribution. Call it what you want. But one thing very therapeutic is for us to find creative outlets for our pain. In Japanese, the word “trauma” is expressed with a combination of two [511] characters: “outside” and “injury”. Trauma isa visible wound, suffering we can see, but it is also suffering made public. We are here to deal with realities. Victims of abuse, in fact often do not [512] disclose it, and if they do, it may not be until a substantial length of time has passed. See R. v. D.D., supra, [2000] 2 S.C.R. 275. Let us not stereotype victims of rape, particularly with the very much discounted doctrine of recent complaint. The Court has reviewed Ms. Gray’s police interview on Monday evening, [513] February 2,2015. For much of our history, the “good” rape victim, the “credible” rape victim [514] has been a dead one. When someone takes control of you and pushes their penis into your mouth, what can you do? It is frightening and shocking. That was Mr. Ururyar. Mandi Gray was intoxicated on January 31, 2015 and typically could have been disassociated from herself as she stated. This I accept. Who can, who should remember the details of a rape? Is it wrong to cry if you were raped? Unlikely. Ms. Gray was very credible [515] and trustworthy. Ms. Gray stated that she did not participate in anything from the time of sitting on Mr. Ururyar’s bed until leaving the next morning. I accept her evidence. Of this, there is no doubt. The possibility of being pregnant, plan B. Rape it was. No confusion. No uncertainty to this Court. Ms. Gray was raped by the accused. — 177 — [516] Mandi Gray remembered what was important on January 31,2015 and she is right. Asking her to remember the details is ridiculous. The accused grabbed her hair, as she has vividly described. He pushed his penis into her mouth and then intercourse followed. That happened. A nightmare. [517] Who. do we often blame for being raped? We blame ourselves. Ms. Gray wanted an apology from the accused. She did not want to believe Mr. Ururyar had raped her. Who would. How could the accused possibly rape Ms. Gray? He was supposedly sick. How did he have the strength to rape her, we are asked? Was he not anticipating consensual sex? Yes, but Mr. Ururyar was so angry, so, so angry, that he took power and control over Ms. Gray and violently raped her.. [518] “BERRY: So, so as, as he, as he was yelling at.you, and you sat on his, on his bed, what happened then? GRAY: Urn, I (Sighs) I know like, like I think that, woke up, but I know like, or like intercourse started, like when he like pushed my head on to his penis and made me give him blow job. And I was like whatever, I’m just gonna comply with this because this person is really mad, and I am really intoxicated, and I don’t know I don’t know I didn’t know what to do and yeah. a — — BERRY: So, so were you — were you dressed at this point or? GRAY: Urn, I don’t remember. I woke up and I was just in a bra and a tank top, so maybe that’s what I was wearing, I don’t don’t remember for sure. Urn, I don’t remember taking off my pants or my underwear.” (Pages 14 and 15 of Statement) — And he knew he raped her with his vague subsequent apology. Text by [519] Mandi (See Exhibit IC) on January 31, 2015 at 1:27 p.m. “Last night was really fucked up”. Response by Mr. Ururyar at 1:53 p.m. “OK”. And then finally on the final text message sent by him on February 5, 2015 at 11:52 a.m., “I am sorry things went as they did. I shouldn’t have said and done some of the things I did. I was upset and felt wronged by you but that does not excuse my own mistakes.” (See Exhibit IC) [520] Ms. Gray was raped on January 31, 2015. It is not about verbalizing. Mr. Ururyar came to the bar(s) for “hot sex” but maybe, just maybe he [521] would be too sick. He was the ultimate game player, pushing to Ms. Gray and then pulling away from Ms. Gray. Ms. Gray becomes the slut for the night because the angry, angry accused wanted to seize on the opportunity of having a threesome and Mandi Gray had ruined it. Ms. Gray did not encourage Lacey to come to his apartment on his pretext of having a drink. Ms. Gray could not meet his sexual needs. He told her that. I accept he told her that. She was vulnerable. She was scared. He pounced. Forget the condom. I am in power. I am in command. He 4. 178 — I — said to her and I agree, “this is the last time I am going to fuck you, this is the last time... and you are going to like it”. Power, power, power. He was the boss and he loved it. The rape, the sleep, and the waking up. Enough was not enough for Mr. [522] Ururyar. Ms. Gray sees him masturbating, his wanting sex again. This time, sober, less tired, Ms. Gray left his apartment. Not again. To quote Ms. Gray (see page 8 of her statement): - “said no, I’m not doing this again. And urn 1,1, I got up and I put on my clothes, and he like didn’t say anything to me, urn, and I didn’t say anything to him, and I, I just I left his apartment. And like I was talking to the officer that came to my, my apartment and I looked through my text messages because I texted my friend as soon as I left, who was waiting here, and I texted her at 9:45 in the morning. So I think that was like as soon as I got on the street car, so Ileft around like 9:40 uh, in thamorning forrnhis place and went home, so yeah.” — V “Uh, in the morning, I remember I woke up because like 1,1, I could feel him like masturbating and I’m like, like fuck, like I don’t— like I didn’t know like why he would do that. I didn’t know like I didn’t have a good time, like I didn’t enjoy that. I, I went to sleep crying, like why. And then he noticed that I was awake, and then he looked at me, and then he took my hand and pushed me unto the penis and I just and that’s when I said no, I’m not doing this. Urn, I felt like I had like when I was really drunk like before, I felt like I had no control over my body. Like I just like felt like, like I would just like I couldn’t urn I don’t even know the right word is. Like I just— I felt like I had no power like to move. Like I could just lie there and that’s all I could do within that moment. And I’m like no, I’m sober, I can get up and I can leave now because I it’s daylight, I can go home. So I just said now I’m, I’m leave I’m ready to leave there. I was leaving and I talk 0 I didn’t say anything to him. He didn’t say anything to me, which like I don’t I don’t know. I and just got up and I left and I, I took the TTC home.” (Pages 17 & 18, Statement of Mandi Gray, February 2, 2015) — — - — — — — — V There is a context for Ms. Gray’s behaviour. The myths of rape should be [523] dispelled once and for all. We cannot perpetuate the belief that niceness cannot coexist with violence, evil or deviance, and consequently the nice guy must not be guilty of the alleged offense. Nice people supposedly don’t rape. This is not society’s image. The accused knew Ms. Gray. And if you don’t remember jjçj when you know you don’t remerñber, he, Mr. Ururyar,- is going to get to write the script. Ms. Gray did remember. Everything, of course not. What happened to her, yes. — 179 — [523] The Crown has proven its case beyond a reasonable doubt. [524] I therefore find Mr. Ururyar guilty of the charge before the Cot Released: July 21, 2016 Signed: