WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
CITATION: R. v. T.M., 2019 ONCJ 61
DATE: January 29, 2019
COURT FILE No: 16-0870
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HER MAJESTY THE QUEEN
-AND-
T.M.
Before Justice Michael G. March
Heard on December 21, 22, 2017, March 5, 6, 7, 8, 9, 16, 28,
May 18 & July 20, 2018
Reasons for Judgment released on January 29, 2019
Caitlin Downing……………………………………………………….Counsel for the Crown
Joshua Clarke….…………………………………………………….Counsel for the Accused
TABLE OF CONTENTS
Heading
Page No.
Introduction
5
The Charges
5
Summary of the Relevant Evidence – Crown Witnesses
6
N.P.
6
K.P.
7
D.H.
10
S.P.
12
K.F.
15
M.M.
22
Defence Witnesses
41
T.M.
41
L.B.
70
Defence Expert – Dr. Fedoroff
76
Dr. Douglass
80
Crown Expert – Dr. Cramer Bornemann
80
Issues
88
N.P.
89
K.P.
89
S.P.
89
K.F.
89
M.M.
89
Law
90
Analysis
96
Issue 1: Is T.M. NCR-MD for the sexual assault on N.P.?
96
Issue 2: Do I believe T.M. that the sexual activity with N.P. was consensual?
99
Issue 3: Does T.M.’s evidence raise a reasonable doubt?
100
Issue 4: What evidence do I accept and does it convince me that T.M. sexually assaulted N.P.?
100
Issue 5: Should T.M. be found NCR-MD for sexually assaulting K.P.?
101
Issue 6: Should T.M. be found NCR-MD for sexually assaulting S.P.?
103
Issue 7: Do I believe T.M.’s account that when he touched K.F., it was not for a sexual purpose?
105
Issue 8: If I do not believe T.M.’s evidence, does it nevertheless raise a reasonable doubt?
107
Issue 9: On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt that T.M. sexually assaulted K.F.?
107
Issue 10: Is T.M. NCR-MD for five distinct sexual assaults committed upon M.M. because he was, on each occasion, in a parasomnic state?
108
Text Messages
113
February 26, 2016
113
April 25, 2016
114
May 5, 2016
114
November 16, 2015
115
Issue 11: Do I believe T.M.’s account that he did not assault M.M.?
116
Issue 12: If I do not believe T.M.’s evidence, does it raise a reasonable doubt as to whether he assaulted M.M.?
117
Issue 13: On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in T.M.’s guilt that he assaulted M.M.?
117
Issue 14: Has the Crown proven beyond a reasonable doubt that T.M. committed the offence of mischief to a dwelling house?
117
Conclusion
117
Endnotes
119
Introduction:
Introduction
Sexsomnia, text messages and nights of wild, youthful abandon are the loose themes of this trial which spanned some eleven days. The accused, T.M., (“T.M.”) and his former common law partner, one of the complainants, M.M. (“M.M.”) met when they were mere teenagers. They were together in a relationship for some nine years afterwards.
The couple worked hard to build a life together. They started a business. They had two children, a daughter Tx. and a son, J.
However, things went awry in 2013, shortly after the birth of their son. T.M. began to exhibit curious nocturnal behaviours. M.M. would awaken to being touched sexually. She would confront T.M. He did not always acknowledge an awareness of his conduct. Yet, on occasion, he did.
Their relationship did not end well. T.M., in fact, was the first to make a report to the police. He told the authorities M.M. drove dangerously. She had almost injured him. She tore off in her truck, before he had any real opportunity to recoil from the passenger window, into which he had leaned to speak to her. However, when police came to investigate this incident, they learned of a much darker history according to M.M. The tables turned. T.M. ended up being charged with a litany of offences, including alleged sexual assaults upon four other women, K.P., N.P., S.P. and K.F., in addition to M.M.
The Charges:
The Charges
- T.M. stands charged with the following offences:
a) one count of sexual assault on N.P. alleged to have occurred between January 1and December 31, 2012 contrary to s. 271 of the Criminal Code (the “Code”);
b) one count of sexual assault on K.P. alleged to have occurred between January 1and December 31, 2013 contrary to s. 271 of the Criminal Code (“the Code”);
c) one count of sexual assault on S.P. alleged to have occurred between May 1 and Aug 1, 2014 contrary to s. 271 of the Code;
d) one count of sexual assault upon K.F. alleged to have occurred between January 1 and October 1, 2015 contrary to s. 271 of the Code;
e) one count of sexual assault on M.M. alleged to have occurred between September 1, 2011 and October 31, 2015 contrary to s. 271 of the Code;
f) four counts of sexual assault on M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 266 of the Code;
g) one count of unlawfully confining M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 279(2) of the Code;
h) one count of assault on M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 266 of the Code;
i) one count of mischief by wilfully damaging the dwelling house of M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 430(4) of the Code.
- In written submissions made November 13, 2018, the Crown indicated it would not pursue a conviction on the unlawful confinement charge.
Summary of the Relevant Evidence
Crown Witnesses:
N.P.:
Summary of the Relevant Evidence
N.P. was a close, lifelong friend of M.M.’s sister, K.F. In April 2012, N.P. drove to T.M.’s and M.M.’s residence in XX. N.P., K.F., M.M. and T.M. all went to a bar together. All agreed that they had a lot to drink. All were intoxicated by alcohol.
N.P. and K.F. returned to the residence before M.M. and T.M. N.P. went to sleep on a couch in the living room almost immediately upon arriving home. She believed it was between midnight and 1:00 a.m. when she fell asleep.
N.P. awoke to a man lying beside her. He was rubbing his beard against her face. He was grunting her first name in her ear. Prior to that evening, N.P. had never met T.M. She told him to leave her alone. She didn’t know who he was at the time. He complied. N.P. fell back asleep.
N.P. awoke again – this time to yelling. She heard M.M. ask, “What did you do to her?” She didn’t see anyone on the couch with her. She did realize soon after that her blanket had been removed and her pants were down. She pulled them up and pretended to be sleeping. N.P. was worried she would be accused of having consented to sexual activity with T.M.
N.P. fell back asleep. She awoke yet again to T.M. with his hand up her shirt. She felt fingers on her breast. She thought it was T.M.’s right hand. His face again was making contact with hers. He was repeating her first name. He touched her face as well.
N.P. got off the couch. She told T.M. to “fuck off.” He did nothing – meaning he remained in her presence. She went to the room where K.F. was sleeping. She couldn’t rouse K.F. She then drove home. She estimated she left at 5:00 a.m.
K.P.:
K.P.
In February or early March 2013, K.P. was snowboarding one day in C. with her then boyfriend, D.H. Around the time that the hill closed – roughly 4:00 p.m. – D.H. and she went to M.M.’s and T.M.’s home in XX. Plans were made by all to go drinking at a mutual friend’s place, T.T.
K.P. recalled having a beer at the ski hill around 1:30 or 2:00 p.m. Much greater consumption occurred at T.T.’s over games of beer pong and listening to music. It was a “hang out session” of some four hours duration. K.P. estimated she and the others arrived at T.T.’s at 7:00 or 7:30 p.m. She consumed at least nine Bud Lite. She described herself as “aware,” but “intoxicated.”
K.P. did not mince words. She testified that when she went out at night at that time, she tended to overdo it and drank heavily. This occurred every other weekend.
She remembered that D.H. drove her back to M.M.’s and T.M.’s place from the ‘get together’ at T.T.’s. T.M. and she had positive interactions earlier in the evening. He was already home when K.P. arrived. He was sitting on the couch playing video games. K.P. sat down to talk with him for a bit. She fell asleep.
She could not remember if D.H. went straight to bed on arrival in the spare room.
K.P.’s recollection was that T.M. was awake when she drifted off. He was a body length away from her sitting upright. She awoke to D.H. exclaiming, “What the hell!” He was at the bottom of the stairs – roughly 2 ½ feet away. She then felt a rubbing sensation on her vagina. She sat up quickly. She told him to stop. T.M. said, “Sorry.” He backed away. T.M. was now within a sitting position from her. K.P. went upstairs with D.H. She told him she was sorry he had to see that. Both were shocked at what had occurred.
K.P. believed T.M. most likely used his left hand to touch her private area. At the time, K.P. was wearing a grey sweater and black spandex pants.
The next morning, K.P. called and told M.M. about the incident. M.M. was upset. She confronted T.M. T.M. apologized. There was no discussion between M.M. and K.P. about going to police.
To K.P.’s mind, T.M. made a mistake. She hoped M.M. and he could work things out. K.P. remembered T.M. was embarrassed by his conduct. He had no explanation for why it occurred. Nor did he make any excuse. He did say he had too much to drink.
K.P. had no discussions with K.F., S.P. or N.P. about what T.M. did.
K.P. did not believe T.M. was asleep during the touching of her vagina over her clothing. His eyes were open. The T.V. was still on. She did not notice what he was doing with his other hand. He was not touching himself.
K.P. agreed that she accepted the apology offered by T.M. She did not go to police. For her, the matter was over. She only reported the incident after M.M. asked her to back her up.
K.P. never wanted to come to court. She did not write down shortly afterwards the details of the incident. Indeed, she struggled at times to remember the night’s events. She admitted to confusing some of the details in giving her statement to police in the spring of 2016.
She became involved in the investigation only after T.M. called police on M.M. In providing background information to an officer, M.M. kind of dropped K.P.’s name.
K.P. further recalled that she had had three to four beer before going to the ski hill. She had one there. She had approximately nine at T.T.’s. In total, she had fourteen or fifteen beer over the course of several hours. She would not have driven. She readily conceded she was intoxicated, but not “falling over” drunk.
K.P. did not believe she took a cab back to M.M.’s and T.M.’s home, but it was possible. The end of the night K.P. described as “a bit of a blur.”
M.M. is K.P.’s cousin. K.P. described herself then in 2013 as a “party girl” along with M.M.’s half sister, K.F. On the other hand, she described M.M. differently – not a “bar star.” K.P. characterized M.M. as someone who liked to dance and have fun. She paced herself, but she did drink and smoke marijuana.
K.P. did not believe she consumed any more alcohol after she returned to M.M.’s and T.M.’s following the get together at T.T.’s. Nor did K.P. think that she smoked a joint at that point, but she conceded she very well could have. Equally, she could have shown D.H. to the spare bedroom. She maintained he did say, “What the hell” or “What the heck” when he came downstairs.
K.P. denied that D.H. confronted her the next day about what occurred on the couch. She suggested he was mistaken. The incident, she offered, did occur four to five years earlier. She believed T.M.’s apology was sincere. She just wanted M.M. and T.M. to move on with their lives and their family.
K.P. vehemently denied that what occurred with T.M. on the couch was consensual. T.M. was her cousin’s partner. K.P. agreed she apologized to D.H. not because she was behaving like a “ho,” but because she is Canadian. She is naturally apologetic is what I took her to mean.
K.P., at the time of being touched, did not look at T.M. for a long period of time. She confirmed he said, “Sorry” right away, or “Sorry, I thought you were M.M.”
In the years after the incident, K.P. was made to feel uncomfortable by T.M. She was running a lot. He would comment on how her butt looked in tight shorts. She started to distance herself from M.M. and T.M. as a result. K.T. also did not want to make T.M. feel uncomfortable either. M.M. and T.M. had two children together. K.P. did not want to cause any drama.
K.P. was firm in her belief. She was confident T.M. knew what he was doing when the incident happened. It was without her consent.
D.H.:
D.H.
D.H. recalled that same evening five to six years previous in giving his evidence. He testified that he was involved in a three to four month relationship with K.P. He believed he met T.M. for the first time the day of the incident, which brought him to court. K.P. and he did not keep in contact since the occurrence.
That night D.H. remembered going to bed with K.P. at M.M.’S and T.M.’s home. D.H. believed K.P. was still with him when he fell asleep. He woke up to her absent from the bed. He went to get a drink of water. He saw K.P. and T.M. on the couch. D.H. was upset. He poured himself some water and went back to bed. He did not say anything.
D.H. recounted being at T.T.’s place earlier in the evening along with T.M., M.M., K.P. and two others. All were drinking. D.H. knew he had reached the point of intoxication.
When D.H. saw K.P. and T.M. downstairs on the couch together, he believed she was on her back with T.M. on top of her. D.H. was not able to see what they were doing, or where T.M.’s hands were.
D.H. was able to make out that their heads were at the same end of the couch. Both appeared to be clothed. Neither spoke. T.M. seemed awake and somewhat upright. D.H. could not determine whether K.P. was awake.
D.H. was angry. He had been “with” K.P. that night.
D.H. acknowledged he was drunk. If he had to render an opinion on K.P., he would have put her as a “little bit intoxicated” too. He assumed that when he went to get some water, he was still somewhat under the influence of alcohol.
When he poured himself some water from the dispenser on the fridge, he did not look back to the couch as he went back to bed. He did not hear any noise. Again, he did not say anything as he passed by.
D.H. did not recall if anyone was with him when he woke up in the morning. He did not know where T.M. was. He believed K.P. simply drove in her car, and they left M.M.’s and T.M.’s place.
He had a conversation with K.P. about the night’s events. He did not remember what K.P. said. He never talked to T.M. about it.
D.H. did not think K.P. and he saw each other romantically after the incident.
D.H. was trying to be quiet when he went downstairs. When he looked into the living room, he described T.M. as “straight armed.” He was lying with his full body horizontal to K.P. It was just his torso, which was above hers, as if he were doing a push up.
D.H. did not remain to observe or study their movements. He was frustrated and mad.
He did not remember K.P. returning to bed for the rest of the night. Nor did he recall taking his truck to T.T.’s place earlier in the evening before ending up at M.M.’s and T.M.’s house. D.H. agreed that it was possible T.M. drove him to get K.P.’s car at T.T.’s place the next morning. However, he added, “Anything is possible.”
D.H. did not remember how much time he spent with K.P. the next day. The incident he witnessed at M.M.’s and T.M.’s residence did not end their relationship. As D.H. put it, “Things weren’t going that great.”
D.H. thought nevertheless that what he saw happening on the couch was consensual. Yet he never really talked about it with K.P.
S.P.:
S.P.
S.P. has known M.M. as a friend since 2007, when both were living in North Bay. By extension, S.P. has known T.M. for almost as long. M.M. and T.M. were dating when S.P. first met M.M.
S.P. explained that M.M. and she were really close. They lost touch after what T.M. did to her. S.P. thought the incident occurred in 2013 in the springtime in M.M.’s and T.M.’s home, although it could have been as late as 2014. T.M. had just opened his shop. M.M. was running a daycare out of the home.
S.P. was living at the time with her parents in North Bay. She went to visit friends in the XX area. She stayed with M.M. and T.M.
S.P. recalled that one evening during her stay, they ordered pizza. She drank about three beer. She felt sober. She did not recall how much M.M. had to drink. S.P. did not even know if T.M. drank.
S.P. believed that M.M. went to bed first. She was not sure when T.M. decided to retire for the night. When S.P. went to bed, there was no one else up.
At the time, she was wearing a black T-shirt and shorts. She awoke to T.M. in bed with her. He was rubbing her breasts and vagina underneath her clothing. He was using both hands. He was behind her – facing her back.
She recalled that the blankets were still over her. She was tense and curled into a ball. She could not say anything. She could not get the words out. T.M. said nothing either.
When she curled, T.M. forced his hand down her shorts to penetrate her. He pushed his fingers inside her vagina.
S.P. tried to push his hands away on more than one occasion. He grabbed one of her hands and placed it on his genitals. He was wearing a T-shirt and boxers.
S.P. tried to pull his hand away. T.M. continued to try to feel her and get her to touch him. Twice he tried to put her hand on his private area. She explained his fingers were no longer inside her when he grabbed her hand.
T.M. was lying directly behind her. There was no space between them. She remained balled up.
Eventually, he left. She estimated that ten minutes or so went by from the time he first touched her until he left. Over that period, he continued to grope her. She froze. She said nothing. She could not go anywhere. She remained cocooned after he left.
She believed it was early morning when this incident occurred – perhaps 6:00 a.m. Eventually, she got up and started packing her things. She put everything in her car. She waited for M.M. to awaken. She came downstairs with T.M. a while later, and they got ready to go for breakfast.
S.P. did not tell M.M. what had occurred. S.P. was petrified. She explained that she blamed herself at first. She just could not understand why it happened.
S.P. got in her car and left. She swore to herself she would never speak to anyone she knew in XX about it. That way, she would not have to deal with it.
She did not tell M.M. about the incident until after she learned through a mutual friend that T.M. had been arrested. S.P. could not remember if she reached out first to M.M. or vice versa. S.P. explained to M.M. that T.M. forced himself upon her. S.P. apologized for not coming forward beforehand.
S.P. never discussed the incident prior to that conversation with M.M. Nor had S.P. been told of anything untoward that had happened to M.M. or any other woman. S.P. never spoke to T.M. about the incident.
S.P. recounted that it was dark in the room where she was sleeping. A sheet covered the window. Very little light could enter. Still it was sufficient to permit S.P. to see that T.M.’s eyes were open. She could not recall any expression on his face.
S.P. could not remember if there was a T.V. in the room where she was sleeping. She sensed she had been sleeping for hours before T.M. entered the room. When she awoke, she was facing the wall. The door to enter the room was behind her.
She felt hands on her body. She glanced around to see T.M. She probably turned away because she was in shock. She only saw him momentarily.
S.P. remained in a ball for almost the entire incident. She remarked that T.M.’s gestures became more aggressive to force the touching to continue. She did not recall turning around to watch him leave. She could not recall if T.M.’s head was off the bed or pressed against it while he was behind her.
K.F.:
K.F.
K.F. is the older sister of M.M. They are very close. K.F. has no other siblings. She has known T.M. for the entire time that M.M. and he had been together – some eight or nine years.
K.F. has lived with M.M. and T.M. on two separate occasions. The first time was in 2013 to 2014 for the better part of a year. The second time was for four to five months in 2015. She stayed in a bedroom off of the addition in the back of the main part of their house, where M.M. ran her daycare.
Near the end of her second stay, K.F. was sleeping when she felt something touching her. She saw T.M. crouched down with his hand on her leg.
K.F. explained that she typically wears pyjamas or tights to bed. This night was not any different. When she awoke, she was on her back. She was still covered with blankets. T.M. was a foot away from her when she awoke.
She recalled that he touched her on her left leg, mid-thigh over top of her pyjamas. She did not know which hand T.M. used to make contact with her.
She jumped out of bed. She was very blunt with T.M. “What are you doing?” she asked. He apologized. He was awake.
K.F. was aware of “incidents” – presumably of a sexual nature – when T.M. had been drinking. On this night, he was sober.
T.M. told K.F. he was sorry. He was worried he could not get aroused. K.F. recalled him saying, “I’m just afraid I can’t get it up.” He was extremely apologetic.
T.M. asked K.F. not to tell M.M. over the next couple of days. K.F. did not for some time afterwards. K.F. had her own reason for doing so. She explained that this was not the first such incident. T.M. had had wandering hands before.
For K.F., it was as though a switch went off. She began to think about whether T.M. was inclined to predatory behaviour. She told him in the days following – “This ain’t right.” She asked T.M. if something happened to him as a kid. Her concern was to get help for him.
K.F. did not believe T.M. was sleepwalking. He did not appear surprised to be in K.F.’s room. After she awoke, she went to the kitchen and T.M. followed. He told her, “Sorry, sorry.” Again, he pleaded with her not to tell M.M.
After the incident, K.F. started sleeping at the front of the house on the couch. She did not want such an incident to be repeated. She tried to avoid T.M. as much as possible. They did not talk about it further, but she believed he understood the reason for her change in sleeping arrangement.
Through her employee assistance program at the Royal Bank of Canada, K.F. arranged for counselling sessions for M.M. On the way to the first session, M.M. told K.F. about what happened to their cousin, K.P. Then K.F. opened up to M.M. about what happened to her. K.F. had to explain why she did not tell her sister immediately, and why she was sleeping on the couch.
K.F. thought that T.M. had grabbed K.P.’s bum. She wondered what she would do if T.M. acted inappropriately toward his daughter.
K.F. testified that she has known N.P. her whole life (i.e. since she was four or five years old). She described their relationship as though they were sisters. However, the last time they were together, K.F. was not impressed with N.P.’s behaviour. K.F. explained that N.P. can get really anxious, hyper and defensive. There is no hatred between them; they now just enjoy their space.
K.F. recalled going to Exciters with N.P., her dad, his girlfriend, M.M. and T.M. Before closing time, N.P. tripped down some stairs. She did not fall; the stairs were steep, but K.F. acknowledged that N.P. was not sober. K.F. was upset that they were asked to leave.
K.F. and N.P. went home in a cab. K.F. slept in a room where there was a crib and a bed. She believed N.P. went to sleep on a couch in the back room.
K.F. did not awaken till morning. N.P. was gone. K.F. noticed she had missed calls and messages from N.P.
K.F. was upset N.P. had left and driven home – perhaps in an impaired state. N.P. explained that she tried to wake K.F. when ultimately they were able to speak with one another. N.P. told K.F. she tried to rouse her, but could not. Eventually, N.P. disclosed to K.F. what had occurred. K.F. knew at some later point N.P. talked to M.M.
K.F. asked N.P. not to report to the authorities that she woke up to T.M. on top of her. K.F.’s motives were the same in not reporting anything T.M. did to her. T.M. was her sister M.M.’s partner.
K.F., N.P. and M.M. eventually did talk. In time, K.F. told N.P. what had happened to her. Their concern was what would happen to M.M.’s and T.M.’s children.
K.F. related that she did not ever discuss with K.P. what happened to her. K.F. explained that K.P. and M.M. are close. K.F. and K.P. are not.
K.F. never discussed with S.P. either what happened to her. K.F. was aware that S.P. helped out M.M. and T.M. after their son, J., was born.
Over the periods that K.F. lived with M.M. and T.M., K.F. has never been aware of any tendency on his part to sleepwalk. Nor did she ever hear T.M. sleeptalk. She only heard of those claims after he was charged. Neither M.M. nor T.M. ever disclosed to K.F. such phenomena.
K.F. denied that the state of her bedroom when she lived with M.M. and T.M. was a disaster. The night of being touched by T.M., K.F. did not think M.M. was home. K.F. believed it occurred in the wee hours of the morning. She did not know if it was the night M.M. went with another male to collect auto parts in the U.S.
When K.F. awoke to being touched by T.M., she could not recall if he removed his hand, or if she moved it for him. She did not hear him enter the room. She did not describe herself as a heavy sleeper.
K.F. did believe that her T.V. was still on. She agreed she did not mention that fact to police. However, she did not recall being specifically asked that question. She denied she was testifying according to an agenda she set for herself to support her sister.
K.F. agreed there was no light on when T.M. entered her room. However, she explained that 80% of the time she fell asleep with the T.V. on.
K.F. recalled that she was covered with a comforter or blanket. She does not like sheets.
K.F. felt T.M.’s hand on the outside of her thigh, not on its inner aspect. She could feel his fingers, but there was no shaking motion he used. It was more of a petting nature. It was not a waking gesture. It was brief, but gentle – like a caress.
In the statement K.F. gave to police on May 27, 2016, she indicated that the lights and everything were off, when T.M. put his hand under her blanket. She maintained there was some light.
Further, she indicated to police that T.M. was “rubbing” her leg. K.F. explained however that it was a rub in the manner of a borderline caress. K.F. conceded she may have used profanity to repel T.M. She reacted instinctively. She knew what T.M. was doing.
A five page text exchange between K.F. and T.M. was made Exhibit 14 on the trial. The texts read:
T.M.: “M.M. is working on hers and well we all know I have a few too
I know i have a prob its embarrasing
Frig i can’t really talk about with you
I dunno
K.F.: It could be more embarrassing for you and your family if you do nothing
T.M.: Can you keep it quiet please i dont want people to know im afraid it will affect my business and that scares me right now
Ya but im afraid this is gonna cost me my family i dont think M.M. wants anythin to do with me
K.F.: Then we need to do something to make sure it doesn’t
T.M.: Im afraid its too late i have screwed up too many times and i have to suffer the consequences now
K.F.: That depends on you
Your kids need their father and tom one day you’ll get the wrong person and yours T.’s and J. slide will go down with it
Well I can have a couple
T.M.: lol ok sounds good it would be nice to see ya and chill
I wanna appologize for everythin K. i feel terrible for putting u in that situation. Know that im getting help and i hope u can understand the suspicions i had about that guy. I dont want u to be uncomfortable around me i am a good person just been through the meat grinder for years. I really am sorry for everythin
K.F: plans tomorrow
Where are you
T.M.: So the night i went in ur room was the night M.M. slept with S. i knew it when she came home her eyes were glass like she had been crying which i asked if she was cryin said no i asked her if there was anythin she need to tell me and she said no went to bed. I think thats why i did what i did K. it was wrong and i realized right away i think i said i dunno wtf im doin here
Ok lol srry
I knew that night she did it
Srry I went in ur room
K.F.: Ok but the other times with other people
T.M.: Yes drunk i changed thay
K.F.: Ok let ya talk about it later
Let’s sry
T.M.: Kk
K.F.: Talk later
T.M.: Kk
K.F.: K good night
T.M.: Night”
K.F. believed the messages were composed fairly close together. The texts make reference to keeping it quiet. K.F. likened this to asking her not to say anything, which T.M. asked on more than one occasion. K.F. wanted to make things better for T.M. and M.M.
It was as well pointed out to K.F. that she did not tell police that T.M. said he was afraid he couldn’t get it up. K.F. surmised that there was a lot she did not tell police in her statement. However, she believed that T.M.’s comment to that effect had to do with his relationship problems at the time with M.M. He believed she was having an affair with S.B. K.F. denied she was embellishing her evidence to assist her sister.
In respect of the incident involving T.M. and N.P., K.F. denied any suggestion that N.P. was extremely intoxicated prior to leaving the bar. N.P. came back to K.F. after slipping on the stairs.
K.F. did not downplay her alcohol consumption. She testified she was asleep the minute her head hit the pillow. She was a heavy sleeper that night after the bar. Typically, she would awaken when T.M.’s and M.M.’s children came into her room and called her name. K.F. maintained T.M. did not do that when he came to her room.
K.F. was clear that N.P. did not leave her cellphone. She left instead a Blackberry tablet. K.F. returned it to N.P. via interoffice courier. K.F. was adamant that all three women, K.F., N.P. and M.M. spoke about the incidents afterwards involving T.M. and N.P. However, life went on. They all tried to move on from it. It was an emotional time for K.F. M.M. is her baby sister.
K.F. denied any plotting against T.M. He needed help. They wanted any problem he had corrected. K.F.’s outlook was that T.M. was like her brother. He was the father of her niece and nephew. She never labelled him as bad, nor wanted him away from them.
K.F. regarded T.M. not as an angry or mean person. Rather, when T.M. opened up to her that he had a problem and it was embarrassing, she likened this to an epiphany for her. His problem had led to more than one incident – not an isolated event. It was ongoing. T.M., to her mind, was afraid of losing everything. It was clear that T.M. was not talking in his texts about financial or anger problems.
M.M.:
M.M.
M.M. met T.M. at a ringette game in 2007. They began to cohabit soon afterwards. Two children were born of their union, a daughter, Tx., on […], 2010 and a son, J., on […], 2013. T.M. was the primary breadwinner for their family. He is a […]. Together, in April 2014, they opened a shop. M.M. did the reception and bookkeeping work. They separated in October 2015, but reconciled in March 2016, when T.M. agreed to go for counselling. However, the relationship ended in May 2016 for good.
M.M. and T.M. continued to live together in their home in XX. They established a 50-50, shared parenting, week about arrangement. They took turns sleeping on either the couch or the bed.
On May 24, 2016, M.M. had plans to go to a wake. She expected T.M. would care for their children. She drove to T.M.’s friend’s house where, upon her arrival, he told her he was not able to watch the kids. M.M. drove off.
T.M. later reported the incident to police. She believed T.M. had told police she tried to run him over. At 9:30 or 10:00 p.m., police showed up at M.M.’s door. They were going to permit T.M. to collect some of his belongings to vacate their shared residence. After T.M. did so, M.M. asked to speak to one of the attending officers, Cst. McGrath. M.M. decided she would tell the authorities about the many relationship problems she had been experiencing with T.M. over the past several years.
M.M.’s chief complaint was that T.M. would touch her inappropriately while she was sleeping. She recalled that these problems she was having with him appeared to develop at the time she was pregnant with J.
These nocturnal interruptions of her sleep were happening so often that M.M. felt completely exhausted. She expressed her frustration to T.M. She was running a home daycare. She needed her sleep.
T.M., she explained, would try to remove her clothing. He would touch both her vagina and anus. He would try to perform oral sex upon her. M.M. estimated this was happening as frequently as two to three times per week.
M.M. described how she would awaken from a deep sleep to find her pants down, and T.M. with his face between her legs. On other occasions, he would be trying to rub his penis between her legs.
In terms of their pattern, M.M. recounted that she would go to bed first. T.M. would stay up later playing video games. Typically, she wore a tank top and pyjama bottoms to bed. T.M. usually wore just boxers. She slept on the left side of the bed, and T.M. on the right.
M.M. testified it reached a point where it seemed that T.M. was trying not to wake her. He would lie directly beside her. He would pull her pants down and put his fingers inside her. Sometimes she would awaken before they were off, but other times, they would be completely off.
T.M. would put his penis through the fly hole of his boxers. He would then try to force his penis into M.M.’s vagina or anus. Usually, M.M. would wake up to these efforts. It was hard not to, M.M. explained. However, on a couple of occasions, M.M. awoke to find fluids in or around her vaginal or anal region. She believed this to be T.M.’s semen.
On the second occasion she noticed this, M.M. asked T.M. about it on her way to work. T.M., she testified, admitted to having ejaculated on her while she slept. This occurred between 2014 and 2015 after J. was born.
M.M. explained she had woken up to feeling sore in her private area. She could smell the semen. T.M. told her he was sorry. He promised he would not do it again.
Usually, these nocturnal transgressions would be visited upon M.M. when she was not having sex with T.M. as often as he would like, or as often as they had in the past.
M.M. described T.M.’s movements as slow and careful. She explained to him that she would be more willing to have sex with him before she went to bed. She did not want to be woken up after she fell asleep.
This type of behaviour exhibited by T.M. persisted over roughly a three year period. Every time it happened, M.M. would tell T.M. how she felt violated. She was supposed to feel comfortable having sex with her spouse. She did not.
She warned T.M. if he did not stop, she would leave him. She did on occasion move to the couch. She did not end the relationship earlier because T.M. was her partner. He is the father of her children. She wanted to give him the benefit of the doubt, to seek counselling and to speak to his mother. However, he kept it up. It did not stop.
T.M. and M.M. tried counselling after their separation in October 2015. It did not help. M.M. felt that T.M.’s view, which he repeatedly passed along to her, was that she was not having sex with him as often as he needed it.
When T.M. and M.M. reconciled in March 2016, M.M. recalled that the nocturnal activity was not as frequent. She estimated it happened perhaps four times. The last two, she remembered, occurred on May 4 and May 14-15, 2016. Her memory as to the dates was assisted through text message exchanges they had.
On May 4, 2016, M.M. could not recall who went to bed first. She did recall that neither T.M. nor she were drinking. She woke up to her pants half way down and T.M.’s fingers inside her vagina. She was lying on her left side with T.M. directly behind. She could not be sure which hand he was using. She surmised it was his right one. His arm was up, around and over her. She told him to get off of her. She wanted to sleep. He said he would stop. He rolled over. However, M.M. awoke again an hour later to T.M. touching her. He had tried to get her pants off. He was carefully pulling them down. She got up and went to the couch.
M.M. explained that her pyjama pants are not particularly tight in the waist. It was not difficult to remove them, even if pulled lightly.
She recalled he had both hands at her waist. He was not saying anything. He was pulling her pants down.
To M.M., T.M. appeared awake. He was careful doing what he was doing. As M.M. put it, “He had to be awake.” She concluded he was certainly conscious when his fingers were inside her. As soon as she told him to stop, he did. He listened. After this second occurrence, M.M. pulled her pants tight and got out of bed. She went downstairs. T.M., she says, acknowledged what he had done the next day.
They discussed what he was doing through texts. He agreed that what he did was wrong, and that he needed to get help. He explained he was not comfortable with his counsellor. M.M. suggested he should find someone else. Otherwise, he would be wasting his time.
On May 14, 2016, M.M. recounted that she was going out for an evening with the girls. She first went to her friend, S.B.’s house. T.M. drove her there. M.M. and S.B. then decided to go to a party.
T.M. became upset as time lingered on and M.M. was not returning home to XX. They were exchanging texts. M.M. was growing frustrated and annoyed herself. She did not want go to home. M.M. felt that T.M. was jealous. He knew the stag party was being held for the brother of a man, Jeff, who M.M. was seeing during the fall and early winter of 2015 – 2016 while T.M. and M.M. were separated.
M.M. did not arrive home until 4:30 a.m. on May 15, 2016. She had been drinking vodka through the evening and night. She believed she stopped drinking around 1:00 a.m. She sobered up quickly with the tension between T.M. and her.
M.M. intended to sleep on the couch. T.M. prevented her from doing so. He wanted her to come up to bed. She finally agreed.
Before going upstairs, T.M. accused M.M. of not being honest, using cocaine and smoking marijuana. M.M. did not believe she had used drugs at all that night. This argument lasted twenty minutes.
M.M. testified that when they went to bed, all she wanted to do was sleep. She told T.M. to stay on his side of the bed. He agreed he would not touch her.
M.M. awoke at what she thought was 6:00 a.m. T.M. had his fingers inside her. M.M. could not remember if her pyjamas were off. He may have just gone underneath. He was calling her a “cunt.” He said he had been checking to see if she had cheated on him.
With this, M.M. believed she got out of bed. She knew her kids would be getting up soon in any event.
A few days later on May 18, 2016, M.M. recalled an occasion where she was trying to get into the shower. It was approximately 9:00 p.m. The children were sleeping. M.M. was wearing only a towel.
M.M. asked where T.M. had been. He told her he had a smoke with Jessica. M.M. asked if he had taken her last cigarette. T.M. said he had not. M.M. was wondering what T.M. and Jessica were discussing. She was annoyed that T.M. was speaking to Jessica about their relationship issues, while she was not allowed to talk to Jeff.
M.M. then attributed to T.M. insults about how Jeff had his penis in her vagina. Suddenly, M.M. testified, T.M. delivered four quick punches to her vagina. She slapped T.M.’s face to stop him.
The punches, she said, hurt her, but did not knock her to the floor. She pushed T.M. out of the bathroom, she thought. She had told him to get out and leave her alone.
T.M. punched the door after it was closed. It dislodged a mirror attached to the inside of the door. The mirror fell and broke.
M.M. took a photograph of T.M. cleaning up the mess. His hand is depicted in the photo. M.M. thought that around the time of T.M.’s arrest, she would have found the photo on her phone. The handwritten date on the back of the photo was May 15, 2016 at 9:30 p.m. Seeing this notation on the back of the photo corrected M.M.’s recollection of when this event occurred. She acknowledged it must have happened on the date she wrote.
M.M. testified that the mirror on the door was there when they moved into the home. T.M. is the sole owner of the home.
In reflecting upon the incidents where T.M. would touch her while she slept, M.M. recalled that there were several texts in which he acknowledged what he was doing. His acts were motivated out of anger. She was not giving him the sex he needed.
She discussed the incidents with her friend, J.S., her sister K.F., her cousin, K.P., but she never told her parents.
M.M. recounted that K.F. told her about T.M. coming into her room and touching her when M.M. and K.F. went to counselling in October 2015. M.M. noted as well that K.F. used to sleep in the spare bedroom downstairs, but later moved to the couch. M.M. did not understand why K.F. would sleep there when she had a queen bed available to her otherwise, especially when K.F.’s belongings remained in the spare room.
M.M. testified that she later spoke to T.M. about the incident involving K.F. He became very emotional. He apologized to both K.F. and M.M. M.M. acknowledged that she had been unfaithful around the time of the incident with K.F.
M.M. also recalled the incident involving N.P. and T.M. She thought the incident occurred in 2014. A group had gone out to Exciter’s bar for her father’s birthday. T.M. and she were definitely intoxicated. She assessed N.P. and K.F. to be equally so.
N.P. and K.F. left the bar early. They returned to T.M.’s and M.M.’s residence, where they all were earlier. M.M. estimated T.M. and she arrived home an hour after N.P. and K.F. did.
M.M. testified that N.P. was asleep on the couch. At some point, M.M. walked into the living room to find T.M. with his hands up N.P.’s back underneath her shirt. N.P. was passed out. M.M. thought N.P. was lying on her stomach. He was mumbling. He told N.P. he loved her. Their heads were within a foot of one another. Both were clothed. M.M. retrieved her camera to record what was occurring. M.M. told T.M. to leave N.P. alone.
M.M. did not remember any lights being on at the time of discovering T.M. and N.P. on the couch together. The recording she took depicted hardly anything. T.M. could be heard saying, “I love you.” N.P. said nothing. She was passed out.
M.M. asserted that T.M. was awake when he was touching N.P. He stopped when M.M. told him to leave N.P. alone. He got up and followed M.M. to bed. M.M. added that she was quite upset to see what she did. At that point, T.M. appeared quite intoxicated to M.M.
M.M. did not know when T.M. went back downstairs. She had fallen asleep. She estimated it was between 2:00 a.m. and 6:00 a.m.
M.M. received a call from N.P. around 7:00 a.m. M.M. believed N.P. had spoken to K.F. about the night’s event. M.M. surmised that K.F. persuaded N.P. to call her.
M.M. asked N.P. if she had sex with her partner, T.M. N.P. told her she did not think so.
M.M. spoke to T.M. afterwards. He became very emotional. He cried. He told M.M. that they needed time apart. T.M. appeared sober to M.M. when they spoke.
M.M. corrected her dating of the incident. She knew it occurred before her son was born, thus before or around 2013.
M.M. testified as to her recollection of the incident involving T.M. and K.P. She remembered meeting D.H. briefly. She recalled the gathering at T.T.’s. She believed that they were all at his place for a few hours till 1:00 or 2:00 a.m. Upon leaving T.T.’s, she was aware that K.P. and D.H. returned to her home. K.P. told M.M. what had happened to her at T.M.’s hands the next day or a couple of days later.
M.M. confronted T.M. about it. He was upset. He apologized. He did not want M.M. to leave him. Both K.P. and K.F. encouraged M.M. to give T.M. the benefit of the doubt. Neither were vengeful toward him. M.M. believed she told K.P. about what was happening between T.M. and her in their relationship. M.M. thought that their relationship problems were starting around that time as well.
In recounting her friendship with S.P., M.M. explained that they met through her friend, S.L. In turn, M.M. and S.P. became good friends.
M.M. spoke of a weekend where S.P. came to visit her family in 2014. M.M. had some clothes belonging to S.P. afterward. They did not have any contact from 2014 to 2016. They did not talk at all. S.P. deleted her on Facebook.
M.M. then received a suggestion from L.B., a mutual friend, that she may want to get in touch with S.P. M.M. gave L.B. her telephone number. M.M. heard from S.P. a couple of days later.
S.P. told M.M. that T.M. “raped” her. S.P. did not give M.M. any details. Prior thereto, M.M. had no idea what had happened to S.P. M.M. had already made her report to police. M.M. thus suggested that S.P. could speak with Cst. McGrath if she wished.
M.M. did tell S.P. about the inappropriate touching, which M.M. herself had endured over the years. M.M. suggested T.M. needed help. S.P. in reply did say that T.M. was the reason she had not been in touch in a couple of years.
The messages exchanged between M.M. and S.P. were screenshot and turned over to police by M.M.
About the incident itself, M.M. remembered having an evening at home and some drinks that T.M., S.P. and she shared. None of them were intoxicated. T.M. and M.M. went to bed. M.M. did not remember T.M. leaving their bed.
When S.P. left XX to return home to North Bay on a Sunday morning, they all went to Jim’s restaurant for breakfast beforehand. S.P. did not seem “off.” M.M. recalled a joke being made, and S.P. was quiet after that. M.M. did not hear from S.P. for two years afterwards.
On May 24, 2016, when M.M. was contacted by police about T.M. coming to collect his belongings, she did give Cst. McGrath names. M.M. believed she gave K.P.’s, K.F.’s and N.P.’s names to police after she was told charges would be laid.
M.M. was shown a reproduction of a Facebook Messenger exchange between T.M. and her on February 26, 2016. It read as follows:
“M.M.: Just afraid of you having dreams or something by accident. I’m sorry to think that way
T.M.: No M.M. she is my daughter
M.M.: Sometimes you touched me and didn’t know it though
T.M.: What I was doin to u was wrong and out of anger
M.M.: I dunno I’m sorry
T.M.: Cuddles make me feel better
M.M.: I just want to protect them. It’s an instinct
T.M.: U need not worry
M.M.: Just try to get her to sleep in her own bed next time
I hope not
T.M.: I’m not as fucked up as u think I am
M.M.: I’m just afraid you will be sleeping and not realize
T.M.: No not gonna happen
M.M.: Which might not be your fault ok sorry
T.M.: No not the case
M.M.: Ok
T.M.: I was aware of what I was doin to u I was angry and it was wrong of me to do that to you
M.M.: You acted so much like you were sleeping
T.M.: I know I’m sorry it was not right
M.M.: I dunno I’m scared I’m sorry.
T.M.: Holy fuck stop it ok
M.M.: Sure. I’ll just shut my brain off
Night T.
T.M.: M.M. I love my kids they are my world nothin is gonna happen to them I can assure u that I would never jeopardize their safety or do them any harm ok
M.M.: Good
Night”
M.M. explained that she was concerned T.M. would touch their daughter, Tx., inappropriately if she remained in bed with him. On February 26, 2016 T.M. had Tx. in his care. He took a photo of her in the bed with him. The photo prompted the Facebook exchange which became Exhibit 7 on the trial.
A series of undated text messages from T.M. to M.M. was shown to her. They stated:
T.M.: Im sorry for all the damage i have caused you, i feel terrible
I want things to be good
From this day forward i will make a better effort and stop doin shit.
I love you and i really want this to work badly
I am really gonna try hard from this point forward to better control my sexual impulses. Im gonna appologize in advance if u wake up and im not beside you. Srry im such a sexual person but i need to respect ur space and take care of business on my own. Just know that im very sexually attracted to you and i always want to be intimate with you. Ill try hard and if we can be more intimate with each other i feel like we will be able to conquer this with ease. Srry that the intimacy is a big part of things for me i know you love me and i know that if we stick together we will both live a very happy life filled with love and good memories. I love you always M.M. you are my true”
At the time these texts were sent, M.M. and T.M. were seeing counsellors individually and together. They both had seen M.M.’s doctor as well about their relationship problems.
A further series of messages from T.M. was shown to M.M. sent November 16, 2015. They are reproduced below:
“T.M.: You know when we started dating i told you how i like it every day i dont understand how you think just shutting me out all the time is gonna help the situation
You dont get it im horny all the time if this is gonna get better i have to get some much needed attention i feel neglected
Like fuck we havent had sex for ovee a month how can you expect that i dont want to do it with you like come on
Im a horny person why cant you accept that like you used to and give me some attention that im seeking
Like this is the most insane fuckin shit all i need is for you to fuck me like you did when we met thats the solution to all this bullshit
You keep me happy in bed all thesr problems go away
I dunno how you cant see this
I have needs to and they”
M.M. clarified that “it” meant sexual intercourse. “Problems go away” signified the end of T.M. touching M.M. in her sleep. M.M. confirmed that she made no alterations to the text messages she received from T.M.
On May 5, 2016, T.M. messaged M.M. as follows:
“T.M.: M.M. plz slow down don’t leave me again, I can’t lose you again. You want me to stop this shit I will, I swear on the kids it will not continue. I’ve been tryin super hard to be better at home with the kids and with helpin around the house and u even said that I was makin a better effort. Plz be patient with me I know u have given me chances but honest to god I want my family to stay together. I need you to be part of my life I don’t think I would have the drive to continue without you. I love you M.M. very much so please rethink this ok I can change I have only had one session at therapy and we didn’t really get into much with her. I’ll admit I need help yes, but please don’t abandon me again I need ur support to get through this ok. I’m fucked up ‘cuz of what T. did to me and C. and I’m sorry that as a result I’m now hurting you. I swear to god please don’t leave I will make a better effort ok I can’t live my life without you, ur the love of my life.
I’m sorry I’m really damaged inside and fucked up mentally and now I’m affecting you. I’m really sorry M.M. I don’t know how to deal with this issue. The therapist told me to watch porn but like fuck it takes me hrs to do my thing. I swear I’ll try hard to stop this shit, I really need ur help with this. Without you I have no one to support me or be there for me as I battle this demon inside me. Plz take some time to think, don’t leave I can get better and I’m certainly goin to try I need ur support M.M.”
In terms of their evidence, M.M. confirmed that the home T.M. and she lived in together was solely owned by T.M. M.M. believed that a mechanism existed to put her on title. A lawyer was contacted to achieve this, but it never happened.
M.M. explained that T.M. was not a heavy drinker. It was unusual for her and T.M. to drink during the week. Once a month, M.M. would go out for a night with her girlfriends. Anything above four drinks and M.M. would feel intoxicated. T.M., she reckoned, was the same. He would be feeling the alcohol at four drinks as well.
M.M. denied any hard drug use. She admitted to trying them in 2012. She did not like them. She did not go back to using them.
M.M. confessed to having an intimate relationship with S.B., an individual connected to T.M.’s […] business. M.M. testified she always had receipts for cash paid to S.B. When pressed in cross-examination, she acknowledged she did not have receipts for almost $10,000 paid by her to S.B.
M.M. conceded that T.M. and K.F. would butt heads when they lived together from July 2014 to August 2015 approximately. M.M. was not aware of any sexual incident between T.M. and K.F. at the time. It was not until the counselling sessions in October 2015 that M.M. learned what had occurred from K.F.
M.M. agreed that she knew little, if anything, directly about what happened to K.P. M.M. went to bed. She saw nothing herself.
M.M. acknowledged that her recollection from the night at Exciters was that N.P. and K.F. had a lot to drink.
M.M. was clear. She thought T.M. was awake when she saw him touching N.P. on the couch in the living room. She had no recollection of T.M. being asleep on the couch with N.P. She thought he was conscious.
M.M. concluded that T.M. must have gone back downstairs to N.P. after he followed M.M. to bed. She deduced this having spoken to N.P. over the phone the next morning. M.M.’s first instinct was to record T.M.’s behaviour. She was already beginning to grow suspicious of him. She described T.M. as “incoherent” and “out of it” during the recording session. He was not responding. He was “not fully present.” This state, M.M. opined, was brought on by alcohol intoxication. She did not believe T.M. was sleeping, because he was talking to her. She conceded, however, she could not see his eyes.
Needless to say, M.M. was disturbed by what she was witnessing. She wanted T.M. to leave N.P. alone. She did not remember grabbing and squeezing his testicles to force him to stop. She did not tell T.M. at the time that their relationship was over.
M.M. did not deny that she could have been passed out in her daycare office prior to witnessing the incident involving T.M. and N.P. on the living room couch. She denied that she called T.M. a “scum bag.” She was steadfast that what she saw was not consensual. She stated when challenged, “You can’t give consent when you’re sleeping.” She did confirm that she asked N.P. if she thought she had sex with T.M. N.P. said, “No!” N.P.’s account led M.M. to believe that N.P. awoke to T.M. touching her. N.P. estimated she awoke around 5:00 a.m. to T.M. touching her. The touching, in M.M.’s opinion, was nonconsensual.
M.M.’s impression was that N.P. did not want to deal with the situation. M.M. denied that she offered to support N.P. in any way if N.P. wished to go to the police. M.M. filed the incident away and forgave T.M.
M.M. recounted that S.P. came to visit her a couple of times in 2014. She confirmed that S.P. did tell M.M. that T.M. “raped” her, but gave no further details. S.P. explained that she got the help she needed and moved on. M.M.’s reconnection with S.P. a couple of years later came about because M.M. gave a mutual friend her telephone number to pass along to S.P.
M.M.’s recollection of the incident involving S.P. was that T.M., S.P. and she had a few glasses of gin and tonic. T.M.’s nocturnal transgressions had already begun by 2013 when M.M. estimated S.P.’s visits occurred. M.M. did not warn S.P. of the risk. As M.M. explained it, she did not think T.M. would behave that way toward anyone else but her. It was then pointed out to her that the incidents involving K.P. and N.P. would have already happened. M.M. did not deny this.
M.M. testified that S.P. told her – after they resumed contact. “I hope you never have to see my statement.” M.M. maintained that she really has no idea what happened to S.P. M.M. could only assume one thing.
MM. did recall joking about a threesome before they all went to bed. She could not remember in which order they all retired for the night. S.P. is a lesbian. M.M. clarified that neither she nor T.M., to her knowledge, has engaged in a threesome. M.M.’s best recollection was that T.M.’s incident involving S.P. occurred in June 2014.
M.M. denied that there was any excessive alcohol consumption. She could not say with any certainty how much alcohol T.M. had to drink.
M.M. maintained that T.M.’s nocturnal transgressions against her were occurring at their peak at a frequency of two to three times per week. While she was pregnant, she did not want sex. This was a problem for T.M. She was running a home daycare and getting up at 5:30 a.m.
M.M. had told T.M., that if he wanted sex, he should try to engage her before she fell asleep. There came a point, however, where M.M. felt that T.M. was not trying to wake her, and wanted her to remain sleeping.
M.M. recalled that T.M. often worked late. He would do side jobs. As a young couple, they needed the money.
M.M. described herself as a deep sleeper. She reckoned T.M. was a very good sleeper himself. He liked to have sex when he went to bed because it helped him sleep. Generally, they went to bed together at the same time around 10:00 or 11:00 p.m. but on occasion, T.M. would stay up playing video games. She wore loose fitting clothes to bed. T.M. just wore boxers.
When T.M. and M.M. separated initially in October 2015, M.M. had just learned of the incident involving her sister, K.F. That was M.M.’s tipping point. M.M. could tolerate her relationship issues, but not when they extended to her sister.
By March 2016, M.M. was open to reconciling to see if they could sort out their problems. They were going to counselling individually and jointly. Counselling did not begin until T.M. resolved to tackle the problem. The tone of their conversation at the time was in the vein of T.M. trying to win M.M. back.
T.M.’s admission to penetrating M.M.’s anus came, she thought, during a period of separation. She surmised she was upset in the morning. He likely asked her why. She was not angry. She was not rubbing it in his face. He was apologetic.
T.M.’s problem according to M.M. began to manifest itself in a pronounced manner in 2013. M.M. could not recall the first time it occurred. If he woke her, there was no problem. However, the fact was, to M.M.’s mind, he did not want to rouse her. She would wake up to being violated where no consent was given. There was a pattern emerging. It started slowly, but increased to two to three times per week. She had no recollection of any incident occurring prior to 2012. However, when she was pregnant, he would not want to wake her because he knew what her answer would be. From 2007 to 2012, he would awaken her. There was no problem.
Post 2012, M.M. would wake up in the middle of the night to T.M. sexually touching her. She wanted to find a solution. She wanted their relationship to work, but she could not figure it out. There were times even when she would have consensual sex with T.M. before falling asleep only to wake up later to being inappropriately touched. If it happened multiple times, she would leave their bed.
M.M. would put an end to T.M.’s touching by telling him to stop. He would immediately. He would mumble something and roll over. Periodically, he would be upset by her having shut it down. She denied that T.M. ever responded with words to the effect of, “This is what you get,” or “I’ll show you.” She did agree however that she was becoming exasperated with the situation.
M.M. agreed that she did research on the internet to try to understand T.M.’s behaviour. However, she did not investigate parasomnia or sexsomnia until much later. To M.M., that would not have made sense. T.M. was fully admitting to his conduct the next day saying things such as, “Yes, I know it’s wrong,” “I’ll stop,” and “I won’t do it anymore.”
One of the counselling suggestions was that T.M. should just masturbate. T.M. was open to whatever ideas when M.M. and he were separated.
M.M. only became aware of sexsomnia after T.M. had been criminally charged. She learned that this was a phenomenon the defence was looking into. M.M. discounted this possibility. She explained that she would on occasion pretend to be sleeping to see how far T.M. would go. When she would resist, he would roll over and pretend to sleep. Sometimes he would keep his eyes closed. Sometimes he would move away. M.M. would never allow him to take it to the point of inserting his fingers in her vagina, or performing oral sex upon her.
In terms of the actual counts of sexual assault T.M. was facing, M.M. explained that she could not recall the dates for the first two. However, May 4 and May 14-15, 2016, she remembered very well. She could resort to her text messages to find the actual dates.
Regarding the May 4, 2016 incident, M.M. believed T.M. was awake because it seemed to her as though he wanted her to stay sleeping. She conceded she did not see his eyes prior to pushing him off of her.
Regarding the May 14-15 2016 incident, M.M. confirmed that her relationship with T.M. was rocky at that point. There had been physicality and jealousy issues.
While on her ‘girls night out,’ M.M. estimated she had four to five doubles of vodkas between 6:00 or 7:00 p.m. and 1:00 or 2:00 a.m. By the time she returned home at 4:30 a.m., she was “pretty sober.”
T.M. wanted to fight. She wanted to go to bed. She gave up trying to go to sleep on the couch. She agreed to go to bed with T.M., but only if he let her sleep. She told him to promise to stay on his side of the bed. He promised he would. However, she awoke to his fingers inside her. He called her a “cunt.” He told her he had been checking to see if she had had sex.
M.M. was adamant that she put a stop to what T.M. was doing to her. She was “pissed.” Not often did T.M. call her a “cunt.” She was surprised by it. She knew T.M. was definitely awake at the time.
M.M. strongly disagreed with the suggestion put to her that T.M. was in a parasomnic state for the majority of the incidents when he sexually touched her. She pointed out that he admitted what he was doing and it was wrong. She agreed that at times, messages can be delivered that the sender does not mean. Indeed, it was possible that T.M. might say things to make her feel better, or to try to get back with her. It was also possible that he did not want to do these things to her and that is why he was sorry.
The February 2, 2016 text exchange (Exhibit 7) was shown again to M.M. She agreed that T.M. would never deliberately sexually assault his daughter, Tx. She conceded that she was asking T.M. to take precautions. She allowed for the possibility that he may not have been in control of all situations where she was sexually touched by him. However, she was sure that his use of the word “angry” referred to how he felt when she would not have sex with him.
Regarding the May 15, 2016 incident, M.M. was consistent that there were four very quick punches delivered by T.M. to her pubic area. She was wearing the towel, so his fist would have contacted it first. The punches were forceful enough to hurt. She slapped his face in response. She did not remember if she knocked his glasses off.
Regarding May 24, 2016, M.M. did not think T.M. was leaning into her vehicle when she sped off. He was standing on the sidewalk at the time. She could have run over his toe. She fully agreed she was frustrated with him because he had reneged on his promise to look after the kids. M.M. knew that the police would show up at her house that night.
When the police did come to her door, she was told of potential criminal negligence and dangerous driving charges. She then decided to speak to Cst. McGrath after T.M. left. She also provided a written statement. A few days later, she provided an ‘in person’ interview at the police detachment. In the interim, she spoke to her sister, K.F. and K.P., but not N.P. or S.P. She agreed that she brought up N.P.’s name to Cst. McGrath.
Over the entire course of their relationship, M.M. has never seen T.M. sleepwalk or sleeptalk. Nor had he or his family members ever disclosed a history of his doing so to her. She did concede that she has woken up to him masturbating a few times. However, M.M. has never believed that T.M. was sleeping when he sexually touched her. Nor did T.M. ever say that he was asleep when M.M. and he attended counselling together about their issues.
Defence Witnesses:
T.M.:
Defence Witnesses
T.M. lives with his current partner at the residence he previously shared with M.M. in XX. He is solely on title. He is an […] by trade. He was fully certified in 2010. He began running his own business in April of 2014. His new partner, L.B., works with him there doing the bookkeeping and appointments – essentially fulfilling the role M.M. once did.
T.M. cares for his two children, Tx., age 8, and J., age 5, on a week about basis with M.M. In spite of his criminal charges, this arrangement appears to have worked out well.
Since childhood, T.M. has had problems with sleeping. He would toss and turn trying to fall asleep. He would talk in his sleep. He recalled these were ongoing issues throughout his childhood. Several people have commented to him about these behaviours they have witnessed.
T.M. estimates he gets between five and six hours of sleep per night. Ideally, he would like to have eight to feel rejuvenated for the next day.
T.M.’s current understanding of his difficulties with wakefulness is that he suffers from sleep apnea. He understands that he stops breathing during sleep on average nine times per hour.
T.M. has one sibling, a brother, who always talked in his sleep too. They shared a room from the time they were toddlers. T.M. frequently observed this phenomenon in his brother.
T.M. is aware that he has had a handful of sleepwalking incidents as a child. He would wake up, but not in his bed. More recently, when he was still living with M.M., he began to have nighttime incidents too.
T.M. recalled meeting M.M. when he was 19. In February 2007, they started dating. It was common for them both to drink and party on weekends. When their daughter was born in 2010, he drank far less. He restricted that activity to special gatherings and birthdays. It became much less of a regular occurrence.
Usually, T.M. would only drink beer. He could easily drink a dozen standard bottles over the course of an evening. He would commence drinking at dinner time, and it would progress to bedtime. If he was partying, the drinking might continue to 1:00 or 2:00 a.m.
At present, T.M. does not consume alcohol at all. He followed his doctor’s suggestion, and has stopped drinking altogether.
T.M. is a regular user of marijuana. He smokes this drug daily. He has used it throughout his relationship with M.M. T.M. and she started using near the beginning of their time together as a social activity with friends. He found it helped him to fall asleep as well.
Around the Christmas season of 2015, he stopped smoking marijuana. However, later into 2016, he started using the substance again. He still relies on it as a sleep aid. He will smoke half an hour or an hour before bed. If he does not, it can take him an hour or two to fall asleep.
In early 2017, T.M. did seek medical assistance for his sleep issues. His family doctor made a referral for him, but it did not pan out. Thereafter, he sought out the assistance of Dr. Fedoroff.
T.M. attributes his sleeplessness to worries about work. He is meticulous in performing his duties. He was inclined to working long hours. At night, his mind would turn to any possible oversights in performing his duties.
T.M. met M.M. through her friend, S.L. They made plans to attend a ringette game. They did and the relationship progressed rapidly thereafter. By February of 2007, they were renting together a two bedroom apartment in XX. They lived in another apartment and with M.M.’s father in the years following. T.M. noted in passing that there were adultery issues throughout their relationship.
When he acquired their house in September 2011 in XX, T.M. described their relationship as being on a high. M.M. opened her home daycare. He was working for a car dealership in town. They had settled nicely into their routines.
Regarding the incident with N.P., T.M. recalled that it occurred before his son was born. He believed the time of year to be spring of 2012. N.P., K.F., M.M. and he began having drinks at his home around 6:30 p.m. They were getting ready to go to a local bar, Exciters. He estimated that he had four or five beer before walking to the bar at 11:00 p.m. He was not paying attention to the level of consumption for anyone else. He believed they all walked together.
T.M.’s recollection was that the four of them met up with M.M.’s father and his girlfriend at the bar. At some point, N.P. and K.F. left before M.M. and he did around last call.
T.M. and M.M. spent their time at the bar mostly with her father and his girlfriend. He had met N.P., but they were not really acquainted. He did know that she drove a Dodge Avenger. He told her he could help her if she ever had any trouble with it.
When M.M. and he arrived home, there was no flirting between N.P. and him. He had little recollection of what he drank at the bar. He was so intoxicated by the time they decided to leave that he did not know where the coat check was.
M.M. and he, T.M. thought, took a cab home. It was a short drive of five to ten minutes to get to his house. When they arrived, he told M.M. he was going to get ready for bed and he would wait for her. He went straight up. He believed M.M. was getting blankets for N.P. and K.F. As he went upstairs, he would have to pass by the living room to get to the bedroom. He believed the only light on in the main floor would be in the kitchen.
He did note that N.P.’s car was in the driveway. He expected she was in the house.
He waited upstairs for 20 minutes to half an hour for M.M. She did not come up. He went downstairs to look for her. He noticed along the way that there was a person on his couch. He could not tell if it was N.P. or K.F.
He found M.M. on the floor at the rear of the house in the daycare area passed out. He suggested she should come upstairs for a “quicky” before bed. He believed that M.M. mumbled to him – “Go bug, K.” He followed M.M.’s instruction. He assessed himself as heavily intoxicated at this point.
He laid down on the L-shaped couch in the living room and fell asleep. He believed he was on one half, N.P., who he later recognized, was on the other half. Their heads met at the corner.
T.M. explained that his intention was to wait for M.M. to go to bed. He woke up to M.M. screaming at him. She had hold of his testicles. She told him, “It was over. They were done. Stay on the couch. Do not come to bed.”
M.M., T.M. testified, kept her grasp on his testicles for “a good 15 seconds” – squeezing them. He felt very uncomfortable. It was quite painful what she was doing to him.
T.M. asked M.M., “What’s going on?” The only response he got was “We’re done.” She went to bed. He stayed on the couch and fell back asleep.
T.M. was not sure how long he was sleeping for, but to his surprise, he woke up to someone performing oral sex upon him. He asked, “What’s going on?” N.P. lifted her head and asked him, “Isn’t this what you wanted?”
T.M. laid there and let N.P. continue what she had been doing. After a few minutes, N.P. took her pants off. T.M. and she had sexual intercourse in a few different positions, but for most of the time, he remained seated on the couch.
T.M. wondered how he could have sex still. He speculated whether he was numb to the pain. The sex, he testified, continued on for 90 minutes to two hours. He could not recall whether he was falling asleep with her on top of him. He did recall being “in and out.”
N.P. asked if he was going to have an orgasm. He told her he was too intoxicated to climax. N.P. asked him to ejaculate in her mouth. T.M. explained that he was so drunk he could not even come close to that point.
T.M. estimated that N.P. left his home at 5:00 a.m. She asked him not to say anything to M.M. N.P. was K.F.’s friend. K.F., of course, is M.M.’s sister.
After N.P. left, T.M. fell back asleep on the couch. K.F. came to ask him later where N.P. was. All he said was that she left. M.M. got up shortly after this.
T.M. believed that N.P. told M.M. later that he touched her. When questioned by M.M. and K.F. about that, T.M. told them he could not recall doing so.
T.M. never told M.M. the truth about what, he testified, had happened between N.P. and him. He went along with the “assumption” made that it was alcohol related.
T.M. denied that he ever saw any video footage of what he was doing with N.P. He confirmed that M.M. did verbally confront him with it. The incident was left in the past. No suggestion was made to him to seek out counselling or treatment. M.M. was soon after pregnant with their son, J. He was born […] 2013.
Regarding the incident involving K.P., T.M. pointed out that they always got along. He was not sure whether it preceded or came after the incident involving N.P. He recalled meeting D.H. before going to T.T.’s place. K.P., D.H., M.M. and he all had drinks together in T.T.’s garage. They took a cab back to his place.
Upon arriving home, M.M. went upstairs and got the bed ready for D.H. and K.P. He stayed downstairs. D.H. and K.P. went upstairs. K.P. came back down a while later. T.M. asked if she wanted to smoke a joint. They both fell asleep thereafter.
T.M. believed he had six to ten beer at T.T.’s place. He thought K.P. had already been drinking before she consumed more at T.T.’s. T.M. assessed himself as “definitely intoxicated” that night. He may have smoked a joint or two at T.T.’s as well.
T.M. explained that it was not uncommon for K.P. and him to share a joint. When they fell asleep, they were seated together on the L-shaped couch – he was on the portion which did not have its back against the wall.
When T.M. woke up, K.P. was gone. He was “pretty sure” she had gone to bed. He woke up in the morning in his bed beside M.M.
They all got up at roughly the same time. They took T.M.’s truck to retrieve their vehicles left at T.T.’s. D.H. did not say anything, nor did K.P. He discussed the ‘incident’ with K.P. a day or two later.
He believed all were feeling the effects of the alcohol the morning after.
When discussions about the incident occurred, T.M. explained he did not understand what happened. He felt badly; however, he had no recall of having touched K.P. inappropriately. He denied that M.M. and he talked about any pattern of behaviour he was exhibiting.
Regarding S.P., T.M. recalled seeing her regularly before his daughter, Tx. was born in 2010 – less so afterwards. He did recall a visit she made to his place one weekend in 2014.
He remembered a ‘stay at home’ evening on this occasion when S.P., M.M. and he, perhaps others as well, were drinking in the den. He believed they smoked some marijuana too.
He recalled M.M. joking about a threesome – if she ever engaged in one – she would want S.P. to join in with T.M. and her.
He went to bed with M.M. around 1:30 a.m. When he got up the next morning, S.P. had her things packed. She, M.M. and he went to Jim’s for breakfast. Everything seemed fine.
T.M. had absolutely “no recollection” of going into S.P.’s room where she was sleeping in his home. He first learned of the allegation made against him in July 2016.
Regarding K.F., T.M. recalled that she would come to live with M.M. and him whenever K.F. was in and out of relationships.
The room she stayed in at his house in XX was quite small. In the room was a bed and a filing cabinet. T.M. did recall as well that K.F. brought a 42” T.V with her. The room was used otherwise as office space for the daycare.
Over time, as K.F. lived with M.M. and him, the room became messier. There was clothing everywhere. That was T.M.’s understanding of why she moved to the couch to sleep near the end of her stay with them. T.M. placed K.F.’s arrival with them in the winter of 2014 going into 2015. She left in October 2015.
T.M. figured that the incident involving her occurred four of five days prior to M.M.’s birthday in July. He was working that day and caring for the kids. M.M. went to Ogdensburg, N.Y., where they had a P.O. Box. M.M. went with S.B., a male business associate of T.M.’s.
By 8:00 p.m. that evening, T.M. was wondering what S.B. and M.M. could be doing. He spoke to K.F. about it. She fluffed it off. She thought he had nothing to worry about.
At 10:30 or 11:00 p.m., M.M. arrived home. Her eyes were glossy. T.M. confronted her about having an affair with S.B. She denied it. They left it at that.
T.M. was still pondering the possibility. He walked to K.F.’s room. The door was not fully shut. He went in and tried to wake her. He startled her. Her reaction scared him too.
T.M. could not recall if the T.V. was on when he entered the room. It was dark. If the T.V. were on, T.M. thought there would be more ambient light.
When T.M. entered the room, she was on the bed facing the wall. He took three steps to get to the bed, he figured. It was only four feet from the door.
He put his hand on her leg. He believed it was above the blanket. He likely used his left hand based on their positioning. He was slightly hunched over.
T.M. knew he frightened K.F. She jumped up right away. She asked what was going on. He told her he was sorry. He did not mean to bother her. He denied there was any discussion about erectile difficulties he was having.
He left the room and walked to the kitchen. K.F. followed. She got a drink of water. He apologized multiple times.
T.M. was insistent that his only purpose in touching K.F. was to wake her. He was not trying to touch her genitals or come on to her.
When the exchange of texts passed between K.F. and him (Exhibit 14), he explained that the “prob” he was talking about were his issues he was having at night. M.M. would tell him about them the following day. He would have no recollection of them. He simply took M.M.’s word for it. He felt M.M. ridiculed him for them.
He did ask K.F. to be quiet about things. XX is a small town. He did not want people to think negatively about him. It could affect his business. It would impact his family.
His reference to “screwed up” and “suffer consequences” was directed to the possibility of being criminally charged.
He apologized for startling her. He regretted a lot of things. When he texted K.F. that he was sorry for going into her room, he thought, as did K.F. and M.M., that alcohol was the catalyst for his nocturnal episodes. He thus curbed his drinking considerably.
Regarding his spouse, M.M., T.M. testified that he was only made aware of the problem after his son, J., was born. The day following an episode, M.M. would ask if he remembered what happened. He would always tell her no. He felt bad. He believed that an apology was required. He did not understand the reason for his behaviours.
Typically, the subject would be raised by M.M. as they got out of bed. It reached a point where those conversations were taking place a couple of times per week. Stress, he considered, was a contributing factor.
T.M. tried to be careful. If he wanted to initiate sexual contact with his wife, he made sure she was consenting. However, M.M.’s anger and frustration grew.
He noticed her attitude changed around the time of opening his business in 2014. When M.M. commenced counselling with K.F. in October 2015, after approximately three sessions, M.M. told him she did not love him anymore. It was post-separation around that time (October 2015) that their discussions about his nocturnal behaviours began. They lived under the same roof till January 2016, then she moved to her father’s.
T.M. recalled that neither M.M. nor he wanted their children to grow up in a broken home. He felt vulnerable. He was willing to do whatever to get M.M. back.
M.M. and T.M. did experiment with anal sex a handful of times over the course of their relationship. He seemed to recall an occasion where M.M. was asking him questions about one instance. He thought they were in his truck. She was asking him aggressively about the subject. He may have “spit it out” to end the conversation.
In terms of counselling, T.M. could only remember attending a few sessions. He believed that M.M.’s and his shared view was that it was not helping their relationship. He did try to improve his communication with M.M. Sex did not come up very much. As for the nocturnal events, he felt he was almost in denial. He was not certain that what he was told was happening actually was.
When shown Exhibit 7, the discussion via Facebook Messenger about their daughter, Tx. on his bed, T.M. explained that M.M. and he never promoted co-sleeping with their children. He intended to move her back to her room after he went to bed. Nothing untoward would happen to Tx. When asked to explain his statement, “I’m not as fucked up as you think I am,” T.M. testified that he felt he was a “pretty average guy.” There was something going on that he did not understand. When questioned about his comment, “I was aware of what I was doin to u I was angry and it was wrong of me to do that to you,” T.M. added that at this time of separation, he was willing to say or do anything to get back together with M.M. That is what he came up with at the time.
When referred to Exhibit 8, a series of texts he sent to M.M., T.M. explained that he was trying to reassure her that the nocturnal incidents would stop. He reckoned he must have sent those texts in April or May of 2016. He was speaking of his willingness to go downstairs to the couch to prevent things from happening.
When specifically asked about his comment, “Just know that im very sexually attracted to you and I always want to be intimate with you,” T.M. opined that M.M. was always trying to push him away. He wanted M.M. to kiss him and to do things with him. He wanted to make plans together with her. T.M.’s further sentence, “I’ll try hard and if we can be more intimate with each other, I feel like we will be able to conquer this with ease,” he surmised he still did not understand what was driving his nocturnal behaviour. He wanted M.M. to know he was going to do whatever he had to do to solve the problem.
When Exhibit 9 was shown to T.M., he did not deny his frustration in composing those series of texts. He did question their date [Nov 16, 2015 as M.M. attributed to them]. However, he did not deny the content. He does have needs. He is a horny person. He was seeking more attention from her.
He pointed out that he did tell M.M. about how he liked to have sex at the outset of their relationship (i.e. daily). When he wrote these text messages, he was aware of the multiple affairs M.M. was having. He did not feel good about their situation. Between October 2015 and March 2016, there was no intercourse between M.M. and him.
T.M. went on to explain that when he started dating M.M., he was 19 and in his prime. By the end of their relationship, M.M. never wanted to do it.
When asked what he was intending to communicate by his statement, “Like this is the most insane fuckin shit all i need is for u to fuck me like you did when we met that’s the solution to all this bullshit,” T.M. testified that he may not have necessarily meant what he said. It was a stressful time for him. He did not know what to do to correct things.
T.M. was referred to a text exchange from April 25, 2016. A message from M.M. read:
“I don’t like how you lick me when im asleep and then try to pretend your sleeping. FYI That probably has a big part of why I haven’t been comfortable.”
T.M. responded with:
“I know. I’m srry my sex drive is retarded.”
T.M. explained that it was “pretty clear” that he wanted to please her sexually. In April 2016, he still could not comprehend the nighttime incidents. He was trying to communicate to M.M. his position.
In person, he would tell M.M. he did not understand what was happening. In that text, he was trying to come up with an explanation. Again, T.M. thought that if they were “more intimate,” for example, holding hands, cuddling and kissing, it would make things easier in their relationship.
On May 5, 2016, T.M. and M.M. exchanged the following by way of text messages:
“M.M.: I told you next time you do it I’m gone. I also told you that I’ll be charging you. Does any of that matter. You fucking made the choice to do it. So in my eyes you really don’t want this to work
T.M.: Ok i understand, u wont find a better man than me for one. And ya im woeking on my issue but i need to feel loved and important if this is gonna work
M.M.: Doesn’t seem like it will
T.M.: U show zero affection for me like wtf
M.M.: Doesn’t work that way. Your in your own mind and I’m tired of you putting he blame on me. It is NOT my fault that I am being assaulted
T.M.: No its not its my fault
M.M.: So you had to of known that if you continue at some point I will walk
T.M.: But can u try harder to pull throufh on some of the things that were buggin me.
M.M.: In my eyes were over
T.M.: Ya its been that way for years
M.M.: Well lets just mutually agree here and be fair with each other
I’m done fighting
Stop hurting me. I won’t hurt you. I’ll put my bedroom downstairs and we will figure everything else out.
T.M.: Ok but i want us to be together
I want this to work
Srry im so fucked up
M.M.: It’s not going to work
Sorry I shouldn’t have come back. We should have had more time apart… We rushed into t
The longer I stay the longer it will take me to get where I want to be
T.M.: No lets sleep apart for a while till i get my issue under control
I want our family together
Ok look i love you but i have a problem
M.M.: Ya ill just put my happiness aside. Great
I know you have a problem
I’m sick of dealing with it
T.M.: This problem i need ur help with too
Well no reason why u cant be happy with me
M.M.: Not happy at all. Haven’t been since we got back together because you haven’t stopped
T.M.: Ok well i need ur help to get passed this
M.M. I think I need to move out sooner than later. And I think the kids need to live with me until you fix your problem
T.M.: M.M. bear with me, dont give up so easy
I really want this to work
M.M.: I warned you 100 times for fuck sakes
T.M.: Plz bear with me i will stop
Dont leave me, i dont think i can live without u so plz I need help to get through this
I know you have given me alot of chances but my feelungs for u are real plz don’t break my heart again i want to solve this ok
Just be patient with me and we can get through this ok i only talked to my councellor once
I need ur help to get through this plz
I will conquer this i need time, plz don’t leave i need u to be patient”
When M.M.’s comment that she may “…need to move out,” was drawn to T.M.’s attention, he acknowledged her motivation for doing so was prompted by his nocturnal conduct.
On May 14 going into May 15, 2016, the following text exchange occurred between T.M. and M.M.:
T.M.: U ok
Hello I’m freakin out here, worried sick about you
M.M.: Hey I’m so sorry my phone died
T.M.: Where the fuck are u
M.M.: I’m gunna stay at Sarah’s house ok they’re going to drive me home
T.M.: I can’t believe you
M.M.: K I’m coming
I was Pukin sorry
T.M.: Oh ok
Well I’ve been ballin my eyes out all night
Money is on the counter
M.M.: Cheech is gunna drive me
T.M.: Wtf
I’m very disappointed”
T.M. explained that when M.M. arrived home between 5:30 and 6:00 a.m., her eyes were dilated. He asked her whether she had been using hard drugs. She was offended.
T.M. explained he had not been drinking the night before on May 14. He did likely smoke a few joints to ease his worries about M.M. He did not recall her asking, “What the fuck are you doing?” after they went to bed. There was no discussion of what M.M. had been doing while out with her friend, S.B. at the stag party. T.M. did add that when incidents occurred, he would always wake up to M.M. punching or kicking him.
The next day, May 16, 2016, T.M. recalled being outside throwing a ball around with his children. He knew that M.M. was on her phone. She thought it was with Jeff, a man he believed she had been sexually involved with while they were separated. He learned that the stag party M.M. had attended a few days earlier was for Jeff’s brother.
Later in the evening, the kids were in bed. M.M. was going to shower. T.M. needed to urinate. He confronted her while in the bathroom about Jeff. He asked her to block his number. She did not want to. T.M. then said words to the effect of: “You won’t because you like having his cock inside you.”
With that, M.M. slapped him in the face. She punched him two or three times in the back of the head. He slammed the door behind him as he exited the bathroom. He acknowledged breaking the mirror on the other side of the bathroom door as a result.
He did not call police on M.M., nor had he on previous occasions when she was physically violent with him. As T.M. succinctly put it, “She’s the mother of my kids.” This bathroom incident essentially defined the tone of where their relationship was at that point.
On May 17, 2016 after a counselling session, M.M. told T.M. she did not love him anymore. He agreed with her. Over the course of the following week, T.M. discussed separation with M.M.
At pages 104 to 109 of Exhibit 10, this text exchange occurred between T.M. and M.M. on May 22, 2016:
“M.M.: You need to move out
Do not tell her to fucking text me
T.M.: K
M.M.: You shot yourself in the foot. I don’t feel sorry for you at all. I can’t be mad.
T.M.: Wtf
M.M.: I’ll just do everything in my power to protect my kids
T.M.: Ok well please don’t call the police on me, I want to be involved in my kids’ lives
M.M.: Fuck off
T.M.: Omg
M.M.: Doesn’t feel good does it
T.M.: I just want us to go our separate ways ok can we come up with an agreement
M.M.: Fuck off
Why the fuck did you give her my number
T.M.: So ur just gonna lock me up no matter what
M.M.: Ttyl
T.M.: Great
Why the hell cant I have some happiness
M.M.: You can. Bye
Hope you get raped in the ass and feel what I did
T.M.: This isn’t the way to deal with things
M.M.: Leave me alone please.
T.M.: Ur goin to therapy talkin about my issue instead of ur anger and all ur other problems
Don’t lock me up
M.M.: It’s fucked me up big time. Leave me alone
Spend time with your children. Enjoy the time you have. Ttyl
T.M.: Go ahead blame me in all this I dunno how it can make you happy to try and put me behind bars, I am a good guy you and I have just been on a path of destruction since we met. So I dunno how you think locking me up is gonna be better for anyone in this family but again you don’t care about me so what difference does it make all you really want is everything that I have worked so hard for us to get.
M.M.: If you took responsibility for your sickness and issue we wouldn’t be here right now. You’re a sex addict and a rapist
And you can’t be helped. I tried to give you 100 chances
T.M.: You don’t care about me
I’m not a sex addict
M.M.: Not now that’s for sure.
Yes you are you always have been.
T.M.: I went months without when you left the first time
M.M.: Congratulations.
T.M.: Locking my up solves nothing
M.M.: Leave me alone
Prove to me your issues is fixed then
T.M.: Ok I can
M.M.: Be fair to me and I’ll try to work with you T. but my counsellor will be notified. What she does after that is out of my control.
T.M.: Omg
I’m not the monster you make me out to be
M.M.: You are you fucked me up so bad T.
T.M.: All I want is to be loved and happy
M.M.: And fuck me as long as I’m sleeping. Especially in the ass
T.M.: You haven’t given me that since before Tx. was born
M.M.: Right.
I’m busy. Bye T.!”
In interpreting this discussion, T.M. maintained that he was still trying to figure out his situation. He did not want to go to jail. M.M. made him feel terrible. He did not understand what was happening.
On May 24, 2016, T.M. was at a friend’s house. He had started to casually see another woman. There was added tension between M.M. and him because of this.
M.M. pulled up on the street outside his friend’s house. He went out to speak with her. He placed his arms inside the truck. Their children were inside the vehicle.
T.M. watched M.M. stomp on the throttle. She floored the gas pedal. He reckoned he had a second to step back. He managed to do so.
He went back to his friend’s house to discover his cell phone was not working. Many of their accounts from service providers were linked.
In consultation with his mother and apprentice, T.M. decided to contact police to assist with retrieving some belongings from his house. He provided some background information to police about his need for assistance. He did not want M.M. charged.
Prior to T.M.’s arrest, he was staying with his mother. L.B. is his new partner. They met shortly after his release on bail, and on June 16, 2016, they became boyfriend and girlfriend.
M.M. told L.B. about his charges almost immediately upon starting into a relationship with her. He did not provide her with the details. He did let her know he had been charged with sexual assault.
At the end of June 2016, L.B. started to sleep over with T.M. at his mother’s residence. Within a month or two, they began experiencing nighttime episodes as well. L.B. would ask T.M. if he remembered doing this or that. He then realized there was “…something going on.” The frequency of the incidents began to increase with time.
L.B. told T.M. about an occurrence where he got up in the night. She did not know where he went. He added, however, that it was not very often he walked in his sleep.
T.M. explained that things still happen at night, but L.B. and he are taking preventive measures. They have two comforters. T.M. wraps himself in one so it is not easy to get his arms out. She will put pillows between them.
L.B. and T.M. began discussing what to do. He believed it was sometime around September 2016 that he tried to obtain a referral to a sleep specialist.
It was through his legal counsel that T.M. was put in touch with Dr. Fedoroff. He began meeting with Dr. Fedoroff in May or June 2017. They met quite a few times leading up to the start of his trial in November 2017.
He also attended for a sleep assessment. Ultimately, he was prescribed with a CPAP T.M.e. He has begun using it. T.M. explained he wants treatment. Dr. Fedoroff gave him a list of do’s and don’ts. L.B. and he have also been taking measures on their own.
T.M. believed that his sleep apnea causes him to stop breathing nine times an hour for on average 45 seconds. He received a regimen to follow from his sleep doctor if he is consuming alcohol or marijuana.
The sleep doctor, Dr. Douglass, advised T.M. to smoke a joint before coming in to be assessed. T.M. had explained he typically uses marijuana as a sleep aid. Additionally, he needs something at night to deal with stress. Dr. Douglass as well gave T.M. a list of sleeping pills not to take in order to avoid harm or fatality.
T.M. also recalled that Dr. Fedoroff asked him to undergo phallometric testing. T.M. complied. His road map forward is to continue using the CPAP T.M.e, and to search for other options to assist him with sleeping.
T.M. did not see Dr. Douglass until November 2017. He has not been back since November 29, 2017, when a CPAP T.M.e was prescribed. The CPAP T.M.e was only to be used for a trial period of seven days. He does use the CPAP T.M.e “pretty much every day.” T.M. has not been back either to see Dr. Fedoroff since their last meeting in December 2017. Other than using a CPAP T.M.e, T.M. does not have a continuing treatment plan or any ‘follow up’ scheduled with a treating physician.
T.M. testified that the stress of criminal charges hanging over his head has taken a toll on him. In the preceding three months to giving his evidence in March of 2018, he was having difficulty getting “good sleep.”
He sleepwalked a handful of times, he estimated, as a child. He was not aware of any significant problem he experienced since adulthood with sleepwalking. M.M. never mentioned witnessing this form of behaviour in him. L.B. mentioned only one such instance. Indeed, he conceded, it was possible he had just gone to the bathroom that particular night, when L.B. noticed him missing from their bed.
At the time T.M. began his relationship with L.B. in June 2016, he could not recall any unusual nocturnal conduct on his part over the course of the first six weeks or more. L.B. did tell him however in August 2016 that he had pulled out her tampon one particular night while they were in bed together. She did mention as well witnessing other behaviours. T.M. would touch her or touch himself roughly twice a week. Almost every night, L.B. would see him flail or jerk his arms. T.M. remarked that in the last months, these phenomena are not as pronounced. He still does touch her, or himself, just not as often.
As an example of his nocturnal pattern, T.M. offered that L.B. would tell him he had his hand on his genitals, or he was talking in his sleep, or he was touching her, or he was flailing in his sleep. In the three months previous to testifying, he estimated these behaviours manifested themselves perhaps ten times.
T.M. believed he first heard of “sexsomnia’ from M.M. He thought this was in April 2016. She was trying to identify possible causes for his behaviour. He did not take the subject very seriously. He described himself as ‘almost in denial.’ He accepted as truthful what M.M. was telling him he was doing.
Later, L.B. and he researched the phenomenon and they realized “…this is what’s going on.” He placed this discovery sometime in the fall of 2016. He then went to see his family doctor. Eventually, he saw Dr. Fedoroff in June of 2017. Months passed, however, before he ever met with Dr. Fedoroff following the recommendation of his lawyer.
T.M. hearkened back to times when he would wake up to M.M.’s punches and kicks in the middle of the night. She would ask him, “What are you doing?” He figured this was occurring two to three times per week as early as 2012 and 2013.
When asked about the incident involving N.P., T.M. recalled no real interaction with her at Exciters bar. K.F. and she were dancing mostly. They were only there for about an hour, before N.P. was kicked out.
Upon M.M.’s and his arrival home, he went straight up to bed. He really did not notice who was sleeping on the couch. He may have mentioned to M.M. he would wait for her upstairs, but she never arrived. After half an hour, he went looking for her. He found her passed out in the daycare area of their home.
He acknowledged she had no pillow, no blanket and was fully clothed. He tried to rouse her to have a ‘quicky,’ but he could not wake her. He did not try to help her up. He did not take her to bed. He did not find her a pillow or blanket. He did not put her on her side for fear she would vomit and asphyxiate. He walked away from her. He explained that he was too intoxicated to think or do otherwise.
He believed he did try to wake K.F. up at M.M.’s suggestion. He thought she was lying on her back on the couch in the rear part of his home fully clothed. After a long period of reflection while testifying, T.M. remembered that he did nudge K.F.’s shoulder, or called her name, but not to have a ‘quicky’ with her. He thought he left the room where K.F. was because she told him she was trying to sleep.
He then went to the living room where N.P. was on the L-shaped couch. She was fully clothed. He believed she was wearing a plaid buttoned up shirt and jeans. She was clearly asleep and likely intoxicated to T.M.’s recollection. He laid down on the couch too. He did not try to wake her. He denied that he was still thinking about having a ‘quicky.’ He did not touch her.
T.M. confirmed that he woke up to M.M. grabbing him by the testicles. She was squeezing them. He was still lying on his back.
M.M. was yelling at him and calling him names. She told him, “That’s it, we’re over.” She said, “Stop” as well. He believed that N.P. was still in the same position lying on her back asleep.
T.M. conceded that M.M. and he had had a nice time at Exciters. They were at a good point in their relationship. He loved her a lot. He wanted to make the relationship work with her. She was the mother of his child, T. Yet he did not follow her to bed. He did not fight to keep the relationship alive with her that very night. Instead, he did what she told him to do. He stayed on the couch. He just wanted her to cool off. He fell back asleep, and awoke to N.P. performing oral sex upon him.
T.M. agreed that he had little interaction with N.P. prior to this particular night at the bar. There had been no flirtation, no romantic discussion and no talk of sexuality between N.P. and him. Out of the blue, T.M. awoke to this overt sexual advance upon him he did not expect.
He agreed he did not ask N.P. to stop. He did not push her away. M.M. and he had enjoyed a long period of fidelity from September 2007 to the spring of 2012.
T.M. attributed a lack of thought and reserve on his part to his degree of intoxication. He imagined that N.P. was comparably as drunk as he was.
He thought she initiated sexual intercourse. He accepted her proposition. The sexual activity continued for roughly a couple of hours with him mainly sitting on the couch and N.P. on top of him.
The sexual activity ended with N.P. asking T.M. to ejaculate in her mouth. He wanted her to experience orgasm. She told him she had already on a couple of occasions. He was incapable due to his state of alcohol, and periodic passing out.
In a way, he felt N.P. took advantage of him while he was drunk. He did concede, however, that he was a willing participant.
Eventually, it just stopped. She did not want to be around when M.M. got up, T.M. figured. N.P. left. He went back to sleep and put his pyjamas back on, he thought.
When K.F. woke up looking for N.P., he believed K.F. called N.P. to ask why she left. He surmised N.P. must have told K.F. or M.M. that she awoke to him touching her. He told M.M. he did not recall what happened. He agreed that this was a lie. He apologized to M.M. He felt badly about knowing what really occurred, but not so badly to tell the truth.
Regarding K.P., T.M. thought that she fell asleep first on the couch upon their return from T.T.’s, but he could not be sure. He essentially passed out from all the alcohol he drank at T.T.’s, and the marijuana smoked upon his return. His evidence changed from when examined in-chief and cross-examined. In-chief, he testified that when he woke up, K.P. was no longer on the couch. In cross-examination, he could not recall waking up to K.P.’s presence or absence. His evidence then progressed from not thinking she was there when he woke up, to remembering she was not there. He did recall waking up on the couch while it was still nighttime. He then went up to bed with M.M.
After K.P. called M.M. to tell her she [K.P.] had awoken to T.M. rubbing her vagina, he remembered being confronted by M.M. about whether he did that. T.M. immediately told M.M. he did not remember such an event. He had no explanation for why it happened. He did not think K.P. was lying. He thought it was as a result of his drinking. At the time this incident occurred, he agreed he did not see a doctor or a counsellor. He did, however, seriously curb his alcohol consumption after his son was born in 2013. He disagreed with the suggestion he could not control his sexual impulses. He maintained he did not rub her vagina intentionally. He simply could not recollect the incident. He denied taking advantage of K.P. while she slept.
Regarding S.P., T.M. acknowledged having a conversation about a threesome before everyone went to bed. He did not dispute what S.P. said about his conduct with her when he came to her bed was non-consensual. His estimate was that he drank a half dozen beer that night, and possibly more.
T.M. explained that he went through his usual routine of turning off the lights and locking doors. He believed S.P. had just shut her door. There was no lock on it. He then went up to bed. When he woke up the next morning, he was beside M.M.
He had no memory of walking to her room, getting into bed with her and digitally penetrating her. He did not believe that S.P. lied in giving her account of what happened to her when he came into the bedroom where she was sleeping. T.M. again simply did not recall doing so.
To arrive at the spare bedroom where S.P. was sleeping, T.M. agreed that he would have to leave his bed upstairs, walk to the top of the staircase, turn 180 degrees, descend some 10 to 18 steps, walk past the living room and dining room and arrive at the door to the spare bedroom. In total, he would traverse some 60-70 feet to get there.
Regarding K.F., T.M. explained that he has known her since 2008 or 2009 as M.M.’s sister. They hit it off well and have been friends for a long time. They have periodically lived under the same roof for months at a time.
In the summertime of 2015, K.F.’s room at T.M.’s house in XX became unliveable. There was clothing all over the floor and in laundry baskets. The room was too full of her belongings. T.M. commented that he still has boxes of hers. It is also around this point in time that she started sleeping on the couch. T.M. did not link his nighttime visit to her room with her decision to sleep on the couch in the living room. He did, however, agree that her decision to do so postdated the incident during which he touched her leg in her bedroom.
On the night of T.M.’s visit to K.F.’s bedroom, M.M. and a person T.M. did business with, S.B., had gone to the U.S. border town of Ogdensburg, N.Y. to collect auto supplies. She returned quite late at night, perhaps 10:30 or 11:00 p.m. T.M. had been sharing with K.F. his suspicions that M.M. and S. B. were having an affair since October 2014.
T.M. raised with M.M. this fear he had that she was being unfaithful to him. She denied it. She laughed it off. Her red face and glassy eyes she attributed to fatigue. T.M. was quite emotional and upset. He did not believe her. M.M. retired to bed.
T.M. stayed in the den. He was crying. He thought he remained there until midnight or 12:30 a.m. Somewhere in the course of the next half hour, he went into K.F.’s room. The door was not fully closed. He pushed it open. He could see she was sleeping on her right side facing the wall. Her T.V. was on. When he entered, he did not know if she was sleeping. He wanted to wake her to talk about M.M. He did not think he rubbed her leg. If he did, it was more in the nature of trying to awaken her. He put his left hand on her left thigh. He thought he did so over the blanket. He did not know if she was clothed. She woke up startled. He apologized.
She jumped up. He apologized again. He went to the kitchen. He just went through to get upstairs to bed. He knew K.F. was now up and walking around. He continued to apologize before ascending, but he denied that he spoke to K.F. about his concerns M.M. was having an affair that very night, or the next day. He did not want to talk about it. He believed he first spoke to K.F. on that subject at T.T.’s place when they were there to celebrate M.M.’s birthday.
When T.M. was confronted with what he texted to K.F. about the incident on February 21, presumably 2016 when M.M. and he were separated, he wrote, “It was wrong”. T.M. explained that he simply meant that he should not have gone into K.F.’s room. It was her personal space. When asked why he would text, “I think I said I dunno wtf I’m doin here,” T.M. clarified that he did not know if he actually said that to K.F. in her room or not. He was distraught and in a state of shock. He was not intending to touch K.F. intimately to punish M.M. He agreed he did not compose in his text on February 21 to K.F., I just wanted to wake you up.
Regarding M.M., T.M. agreed that one of the counselling recommendations made for him was that he should watch pornography regularly and masturbate in order to decrease or eliminate the number of nocturnal incidents. He did masturbate regularly, but he was not into pornography. He agreed he did not want to do everything he could to eliminate or reduce the nighttime occurrences. He vehemently denied that he chose to sexually assault M.M. rather than strictly follow his counsellor’s advice. The focus of the counselling in any event, he pointed out, was to improve communication between him and M.M.
Of the four incidents M.M. alleged she was sexually touched by T.M. from March to May 2015, T.M. agreed he did not believe she was fabricating their occurrences. He just did not recall them, because he was sleeping.
In addressing the May 24, 2016 incident when M.M. came to ask him to care for their children, T.M. agreed she may not have intended to hurt him. She was upset. He was not struck. He was able to get out of the way although he did maintain that the potential for serious injury remained.
When T.M.’s attention was drawn to page five of Exhibit 10, in essence his apology to M.M. for being so sexual, and her complaint that she did not like to be licked while asleep and his pretending to be asleep when caught, he agreed he did not protest and declare he was in fact sleeping. Nor did he clarify that he had no memory of such incidents. However, he did disagree that he touched M.M. on purpose in a sexual manner.
T.M. agreed that the more than 150 pages of texts which comprise Exhibit 10 predominantly concerned his sexual needs, and complaints about not getting enough from M.M.
At pages 4 to 6 of Exhibit 10, T.M. disagreed that the sequence discussed was an act of consensual sex between M.M. and him, and that later she fell asleep only to be awakened to his performance of oral sex on her. He maintained that he did not understand what was happening whenever she complained of waking up to being sexually touched.
T.M. agreed that none of his texts to M.M. suggested a failure to understand. Instead, he spoke of his intention to try harder to control his sexual impulses, to leave their bed if he must and his apologies for being such a sexual person.
When confronted about whether he felt entitled to sex everyday with M.M., T.M. testified he did not know. He would enjoy sex every day, but it did not mean he was so entitled.
At pages 48 to 49 of Exhibit 10, M.M. squarely asked T.M., “How can I love someone who violates me every single night?” T.M.’s response was:
“Ya i understand but u fail to understand how i feel. You give urself away sexually with ease to other men but not me. It upsets me and makes me insecure as fuck. Lets sleep apart until you can start bein more affectionate and appreciative of me. I need u to make me feel wanted and desired. Right now i feel as if u dont give a fuck. In my eyes you have given up and dont care to try and step it up on ur end. That makes me angry and resentfull and results in me bein disrespectful towards you. Im srry but you need to try harder to make me feel special again.”
T.M. agreed under cross-examination that M.M. was talking about the nocturnal incidents. He conceded he did not say, in response, I do not understand what is happening. He did not take immediate steps to see a doctor. He did not speak of addressing the problem through counselling. He agreed that his reference to M.M. being “more affectionate and appreciative” equated to having sex with him.
T.M. maintained that in spite of these texts, he did not understand what was going on with him. Only verbally did he ever express to M.M. his lack of understanding at the causation for these nighttime occurrences – never by text.
Regarding the May 14 to 15, 2016 incident, T.M. vehemently denied he had tried to put his finger in M.M.’s vagina to determine if she had cheated on him. However, he did not disagree that he was extremely upset to learn that M.M. was at a stag party, where her former lover, Jeff, was going to be instead of simply having a “girls night out,’ as he was led to believe.
When challenged about understanding clearly what he was doing, when M.M. and he were communicating over Facebook Messenger on February 26, 2016 and he wrote:
“What I was doing to u was wrong and out of anger”
T.M. disagreed. He maintained, as always, he did not comprehend what he was doing.
L.B.:
L.B.
L.B. described herself as T.M.’s common law spouse. They knew each other as kids. T.M. came into her life again on June 10, 2016. At the time, she was working […] in Kanata, but living with her mother in XX.
L.B. knew T.M. and M.M. had separated. She knew that T.M. had two children. She was aware T.M. had been criminally charged, but did not know with what.
L.B. and T.M. began dating on June 16, 2016. They now live together at his home in XX. They have been there since May 15, 2017. Prior to that, T.M. and she lived with his parents. T.M. and she slept together on a pullout couch.
At the end of June 2016, T.M. opened up about the nature of his charges. They did not want to keep secrets between them. He told L.B.’s parents too.
T.M. spoke to them about how M.M. tried to run him over. She accused him as well of doing things to her in her sleep. L.B. does not believe T.M. is guilty.
L.B. was clear that in her time with T.M., he has shown himself not to be a habitual drinker. He does like to smoke a small joint of marijuana before bedtime. He does so routinely. It helps him sleep.
L.B. is typically the first to go to bed. She retires usually between 11:00 and 11:30 p.m. Often they go together. Their bed has fitted sheets, two comforters and two pillows. She explained that it is easier for her to sleep that way if T.M. has leg jerks. He likes as well to cocoon himself in a blanket.
L.B. recalled the first nocturnal incident sleeping with T.M. in June of 2016. It was minor. He was touching her between her legs. She thought initially he was just trying to initiate sex.
A major incident occurred however in August 2016. T.M. pulled her tampon out. He did so in one swift motion. Beforehand, he was sleeping, snoring and his eyes were closed. When he removed the tampon, he left it between her legs. She thought of waking him, but was worried to do so. She did not want to scare him.
When L.B. told him about the tampon incident, he asked her to repeat herself. He did not remember doing it. He broke down crying.
They talked about getting him help. They spoke with a Dr. Morrison in December 2016. They thought she would make a referral. They contacted the Royal Ottawa Hospital in early 2017. She thought it was March or April 2017 before he could see someone about the problem.
L.B. recalled incidents of violent leg or knee jerks. Other times, there were instances where T.M.’s arms would be flailing, or he would elbow her. On occasion, she woke up to find T.M. masturbating while he slept. If her skin was exposed, he would rub himself on her leg, or dry hump her. On another occasion he walked in his sleep after their return to his house in XX. She could hear him downstairs. This was not unusual – to hear him downstairs that is – due to his stress level.
In the morning, L.B. asked what he had been doing. He did not know he had been out of bed.
Occasionally as well, L.B. would hear T.M. talking in his sleep. One time he yelled “Stop!” She noticed instances before he began using his CPAP T.M.e where he would stop breathing while sleeping. She estimated this occurred two to three times per week before usage of the CPAP. Very rarely do these phenomena occur now. The nocturnal stirrings began, L.B. reckoned, when T.M. and she got together. They just did not know what they were.
There were three nights when L.B. and T.M. did not sleep together. He decided to sleep elsewhere. Neither were happy about it, but they had to do it to function. L.B. explained that she needed to sleep, but did not like waking up without T.M.
They began to research sexsomnia and discovered it was no different than a broken foot. L.B. was certain it was a medical disorder. They investigated the nature of T.M.’s condition after the tampon incident in August 2016.
L.B. confirmed she has met with Dr. Fedoroff. She has not read his report. She offered that, as T.M.’s surety, she has to be with him everywhere he goes. She would thus sit in on his sessions with Dr. Fedoroff, except when the doctor was doing things with T.M. She confirmed that Dr. Fedoroff did ask her questions. T.M. would be present when he did.
L.B.’s understanding of T.M.’s treatment plan is the use of a CPAP T.M.e. She did not believe Dr. Fedoroff was opposed to T.M.’s use of marijuana.
Dr. Fedoroff indicated that he could give T.M. medication to aid his sleep. However, there are certain negative side effects associated with their use, if a person suffers, as T.M. does, with sleep apnea.
L.B. recalled that the nocturnal incidents began to occur almost instantly when T.M. and she began sleeping together at his mother’s place in June 2016. At first, it was light touching – his torso against her back – what she dubbed “dry humping.” They did not sleep naked together in the beginning. T.M. would wear boxers. She would wear pyjamas. Initially, she thought he was just trying to initiate things.
The incidents themselves could occur sporadically through the night. She did not believe they happened within the first hour or two of T.M.’s sleep. The touchings or jerkings manifested themselves at least a few times a month. L.B. did not consider them shocking. She would wake up, roll over and go back to sleep. Alternatively, she would nudge T.M. awake. She figured he was just wanting to have sex. He would apologize for disturbing her sleep.
When she was kicked or hit by his arm, L.B.’s impression of his reaction was that he did not realize what he was doing. At times he would be behind her. She is a light sleeper. She would just push him away. Other times, she would roll over and cuddle in with him.
She believed he was sleeping. She did not check. Due to her research into sexsomnia, she believes now it was possible he was sleeping. Before she thought he was awake and trying to initiate sex.
At the rate of a few times per week or per month, L.B. would wake up to T.M. masturbating. She could not be sure of the frequency. It was a long time ago. He would be wearing his pyjamas laying on his back with his hands below his waistband. She would roll him over. She did not know for sure if he was sleeping, when he was rubbing against her from behind.
The tampon incident occurred when they were camping at her friend’s place. Both T.M. and she went to bed at the same time. T.M. was on her right. She was not sure exactly how she or he were positioned. She felt him touch her inner thigh. It was possible that either he rolled away while holding it, or she rolled away. He was snoring. He does every night. She woke up to being touch. She immediately got out of bed when the tampon was pulled out. She did not look at T.M. She went to the bathroom.
L.B. picked up the tampon. She went to the bathroom long enough to clean herself up and to put another tampon in.
When the tampon was initially pulled out, she did not call out. She did not strike him. He was snoring. She knew he was sleeping.
She did bring a towel back with her to clean the sheets. She was not concerned it would happen again. It was, however, definitely time to get T.M. help.
L.B. emphasized that T.M. has never done anything to hurt her. She is not afraid of him. She added that she was more than “welcoming” if menstruating.
She agreed the removal of the tampon was an invasive act by T.M. She was shocked by it. She did not want it to happen again. She took no preventive measure to avoid a repeat of this conduct, because she was not worried about T.M.
L.B was challenged that she did not give any evidence that asserted she has woken to T.M.’s face between her legs when he was awake or asleep.
L.B. agreed that she did not testify during her evidence in-chief that she has woken up to T.M. digitally penetrating her, or performing oral sex upon her. She understood those acts to be the bases for his charges. She explained she did not understand the importance of listing every type of activity he engaged in. Most commonly, it was leg flailing or arm jerks. She agreed that she has never woken to T.M. successfully digitally penetrating her vagina. In L.B.’s view, the tampon incident was the catalyst for getting help for T.M.
L.B. clarified that her research into “sexsomnia” did not really start until T.M. saw Dr. Fedoroff in the spring of 2017. However, she has not read articles Dr. Fedoroff recommended about the symptoms. She did understand that mixing marijuana and alcohol has an effect on the condition, as does fatigue. L.B. understood that sexsomnia may result where there is a disruption in sleep. The person does not achieve ‘REM’ sleep. The sexsomniac will feel drowsy and lack focus the following day. L.B. observed these symptoms in T.M., after she experienced a nocturnal episode with him.
L.B. denied that she has looked at and read Crown disclosure. She has not seen any witness statements, nor Crown Synopses. T.M. has not told her what M.M., K.F., S.P., K.P. or N.P. said in giving their evidence, or generally in making their allegations.
L.B. related that she worked for a modest wage at […] prior to going to work for T.M. If T.M. goes to jail, she will be out of her new job as his business assistant. She was strongly of the view T.M. has been wrongfully accused.
Outside of use of a CPAP T.M.e, L.B. was unaware of further steps T.M. can take to avoid his nocturnal episodes. Since he began use of the T.M.e, she very rarely observes any sexsomnia type behaviours. He sleeps through the night.
When Dr. Douglass prescribed a CPAP T.M.e for him in December 2017, T.M. acquired one the next day. He used it immediately. L.B. did not recall occasions where he did not use it.
L.B. explained that she took photos of instances when T.M. would be violently masturbating in the bed next to her. They would, for example, be watching T.V. He would fall asleep first. Then he would on occasion firmly grip his erect penis and rapidly jerk it. L.B. thought he would hurt himself, he would do it so vigorously. By the time she could take a photo, it would be less so. Two photos of T.M. masturbating were filed as Exhibit 24 A and B taken March 3, 2017 at 10:48 and 11:01 p.m. Another photo was taken April 7, 2017 at 12:06 p.m. L.B. took the photos, she stated, because T.M. wanted to see for himself what he was doing. T.M. and she came up with the idea of taking the photos before any meeting with Dr. Fedoroff.
L.B. confirmed that T.M. has not during one of his nocturnal episodes:
a) moved barricading pillows away;
b) exited the bed to come around to her side; or
c) crouched or kneeled down by her bedside.
- In terms of L.B.’s efforts to wake him, she would try to shake him. It was hard for her to know because of their frequency, but she believed she had a 50% success rate in rousing T.M. She has called his name out to wake rouse as well, or turned on the lights. She has never yelled at him, hit him or violently shook him to awaken him. She has never believed he pretended to be sleeping when experiencing a nighttime incident.
Defence Expert – Dr. Fedoroff:
Defence Expert – Dr. Fedoroff
The Crown challenged the credentials of Dr. Fedoroff to offer opinion evidence on the condition of ‘sexsomnia.’ The Crown conceded that Dr. Fedoroff was an eminently qualified forensic psychiatrist, but because sexsomnia is a subset of parasomnias (i.e. sleep disorders), his education and experience in diagnosing such a condition was lacking.
I disagreed and gave an oral ruling permitting the defence to lead opinion evidence from Dr. Fedoroff as to whether T.M. had sexsomnia, and whether T.M. was likely in such a state at the time he was alleged to have committed the sexual assault offences with which he has been charged.
Dr. Fedoroff confirmed that T.M. was referred to him by his defence counsel. Dr. Fedoroff made an appointment for T.M. to see him. T.M. filled out an online questionnaire before his first attendance with Dr. Fedoroff. T.M. came in to meet with Dr. Fedoroff on approximately five separate occasions. T.M. also underwent phallometric testing.
Following a review of extensive materials1 and after numerous examinations/interviews conducted by Dr. Fedoroff of T.M., Dr. Fedoroff opined that T.M. has sexsomnia. Dr. Fedoroff was clear, of course, that he could not answer the ultimate question of whether the condition (i.e. ‘sexsomnia’) existed at the time T.M. was alleged to have committed the sexual assault offences.
Dr. Fedoroff’s diagnosis of sexsomnia was his “best” opinion, which he arrived at through a review of the materials, his assessment of T.M. and his partner, L.B., the input he received from Dr. Douglass which confirmed another sleep disorder (apnea) and comparisons of T.M.’s symptomology to other known cases where sexsomnia was diagnosed.
Dr. Fedoroff explained that sexsomnia is a parasomnia. It has certain characteristics that can be seen on an EEG, if it is captured during a sleep study. The condition however does not manifest itself every night.
Sleepwalking and sleeptalking are some of the more commonly known forms of parasomnia. T.M. had a history from childhood of exhibiting these behaviours. His partner, L.B., confirmed for Dr. Fedoroff her relatively recent observation of such conduct in T.M.
In Dr. Fedoroff’s view, any disruption in one’s usual sleep architecture can trigger a parasomnic episode. Alcohol is known to affect sleep. The literature on marijuana’s impact, if there is one, is quite sparse according to Dr. Fedoroff. Additionally, sleep apnea, which Dr. Douglass recently diagnosed for T.M., is a sleep interrupter as well.
As a phenomenon, sexsomnia normally occurs outside of REM sleep. Dreams occur during REM; however one’s muscles are paralyzed when in a dream state. Dr. Fedoroff explained that this is nature’s way of preventing us from acting out our dreams, and harming ourselves.
Dr. Fedoroff confirmed that one can have one’s eyes open and still be dreaming. A person with sexsomnia can perform tasks carefully. Dr. Fedoroff hearkened back to a reported legal case where a person was able to put on a condom while asleep.
Dr. Fedoroff offered that sexsomnia is not related to sex drive. Complexity in behaviours is not a reason to rule out sexsomnia.
A person with the condition can sleepeat, and for example, negotiate their way to his or her kitchen. Leaving a room where one is sleeping is not inconsistent with sexsomnia, especially if the person is familiar with the room to which she or he wishes to go.
Dr. Fedoroff confirmed that acts of vaginal and anal intercourse have occurred when a person is asleep. Sexsomniacs can also engage in sexual acts upon themselves.
Dr. Fedoroff pointed out that T.M. did not respond to an audiotape of a man sexually assaulting a sleeping woman during phallometric testing. This finding was consistent with T.M.’s claim he is not attracted to sleeping women.
Dr. Fedoroff did allow for other possible explanations for T.M.’s alleged behaviour in relation to certain complainants. T.M. could have been simply drunk and disinhibited. Alternatively, T.M. could have been in a state of ‘confusional arousal’ – a condition where a person is partially, but not completely awake. Such a person is not aware of where they are, or who they are with. They act, but they are not doing so with an operating mind.
When the factual scenario M.M. testified to – the nocturnal episode where she said that T.M. had his fingers in her vagina, she asked what he was doing, and he responded that he was checking if she had sex with another man – was put to Dr. Fedoroff, he agreed that this incident sounded like T.M. was acting voluntarily. Dr. Fedoroff’s view was that this was not a sexsomnic act. However, he did point out that sleepwalkers can come up with explanations for what they are doing. They confabulate. Dr. Fedoroff added that he did not know which was the case in this instance.
When asked about Dr. Cramer Bornemann’s Will Say, a copy of which was provided to Dr. Fedoroff before he testified, Dr. Fedoroff disagreed that sexsomniacs cannot travel a distance from where they are sleeping to perform relatively complex acts. In Dr. Fedoroff’s view, neither complexity of behaviour, nor alcohol are reasons to exclude sexsomnia.
Dr. Fedoroff explained that the best ‘smoking gun’ evidence to confirm or rule out suspected sexsomnic behaviour is a video recording of it. Dr. Fedoroff seemed to recall that T.M.’s former partner made such a recording, but he did not have the opportunity to observe it.
Dr. Fedoroff acknowledged in cross-examination that he did not know how often T.M. would sleepwalk as a child. If he had asked, or if he had been told, Dr. Fedoroff would have included it in his report. History of the patient is important to know. However, Dr. Fedoroff opined that parasomnia can develop at any time in one’s life.
Dr. Fedoroff pointed out as well that stress can be a catalyst to parasomnia, as can exhaustion. Again, anything which interferes with sleep architecture can be a trigger. Dr. Fedoroff pointed out as well that the deterioration of T.M.’s relationship with M.M., which T.M. dated to June of 2012 when his son was conceived, caused him severe stress. This coincided with the first manifestations of nocturnal episodes.
Dr. Fedoroff confirmed that it helps to know how much a person had to drink if they are claiming to have experienced a sexsomnic episode. Dr. Fedoroff would want to know if the person were intoxicated. A sexual assault can occur if the person is simply intoxicated. Additionally, asking the person himself how much he had to drink does not always produce the most reliable evidence.
Dr. Fedoroff agreed that the focus of his assessment, supplemented by Dr. Douglass’ report, was based on the sleeping pattern of T.M. at the time their examinations were conducted and findings were reached. Dr. Fedoroff conceded that the focus was not on T.M.’s sleeping patterns when the offences were alleged to have been committed. However, Dr. Fedoroff did note that each of the alleged sexual assaults in question seemed to have unusual sleep patterns for T.M.
Dr. Fedoroff maintained that he did address the possibility of malingering on T.M.’s part. He conducted the Paulhus Deception Test as he typically does. T.M. scored above average on both the impression management and self-deception sub-scales of the test.
Dr. Fedoroff was aware that there was no objective evidence of a parasomnia from Dr. Douglass’ sleep study upon T.M. Dr. Fedoroff agreed that one can have sleep apnea without a parasomnia. Most of the corroboration of sexsomnic symptoms, Dr. Fedoroff stated, were coming from L.B., T.M.’s current partner.
Lastly, Dr. Fedoroff confirmed that he did not consider a dissociative disorder as a possible explanation for T.M.’s symptoms.
Dr. Douglass:
Dr. Douglass
On consent, the reports of Dr. Douglass were filed as Exhibit 22 and 23. Dr. Douglass diagnosed T.M. with Obstructive Sleep Apnea Syndrome (i.e. mainly hypopneas). However, no objective evidence from the Sleep Study conducted on T.M. were noted to corroborate the self-reported history of parasomnic activity at home, witnessed by L.B.
Further, Dr. Douglass’ findings showed that T.M.’s degree of sleep disturbed breathing was moderate. Its effect would be worse when drinking alcohol. The alcohol could make hypopneas longer or more frequent.
In terms of treatment, Dr. Douglass prescribed a home trial of auto-CPAP (continuing positive airway pressure). Depending on T.M.’s feedback, he was prepared to issue a final prescription for CPAP use.
Crown Expert – Dr. Cramer Bornemann:
Crown Expert – Dr. Cramer Bornemann
The defence took no issue with Dr. Cramer Bornemann’s expertise in the field of sleep disorders (i.e. parasomnia/sexsomnia, as well as sleep apnea).
Dr. Cramer Bornemann is certified in sleep medicine by the American Board of Sleep Medicine. He is currently the Director of Sleep Medicine Services at Olmstead Medical Centre in Rochester, Minnesota. As part of his private enterprise, Sleep Forensic Associates, he has been a consultant for the defence, and law enforcement communities in over 350 cases over the past 11 years. Roughly 110 of those cases resulted in published court decisions. Dr. Cramer Bornemann estimated that 75% of the cases he worked on were for the defence – the remaining 25% for the prosecution.
In order to render a medical assessment/opinion on this case, he reviewed, like Dr. Fedoroff, copious materials2.
Dr. Cramer Bornemann explained that 100% of the work he undertakes involves sleep. ‘Sexsomnia,’ he described, is a subset of parasomnias. Ten to fifteen percent of his work would involve the investigation of parasomnias. He has been qualified by courts of law in the past as an expert in sleep disorders.
The opinion Dr. Cramer Bornemann reached in this case was based primarily on his review of transcripts of evidence earlier given in the trial by Crown and defence witnesses, including Dr. Fedoroff. His global, objective view of the evidence, from a medical perspective, was that it was grossly inconsistent with a finding of sexsomnia. Dr. Cramer Bornemann, to be clear, did not share Dr. Fedoroff’s opinion that sexsomnia was at the root of T.M.’s nocturnal behaviours, and gave rise to the numerous sexual assault charges he is facing.
Dr. Cramer Bornemann pointed out that three of the incidents (those involving N.P., K.P. and S.P.) were instances where significant amounts of alcohol were consumed by T.M. Dr. Cramer Bornemann considered it to be a “false presumption” that alcohol can be a trigger to parasomnic activity. Additionally, in the vast majority of the instances, T.M. was described by the complainants as “awake.” Last, but not least, Dr. Cramer Bornemann explained that sexsomnia or ‘confusional arousals’ are most typically confined to the bed, or in close proximity to the bed, where the person in such a state would engage in sexual activity with another nearby person.
Dr. Cramer Bornemann likened parasomnias to a switching error as one passes through the phases of REM and NREM sleep. Typically, a person would traverse through four to six of these cycles per night. When switching errors occur, a person can sleepwalk or sleeptalk without memory or awareness of it. Primal behaviours may be exhibited. Sexual behaviour is primal. Sexsomnia can result.
The phenomenon manifests itself in brief, non-complex movements. Sexsomnia is, in essence, a ‘confusional arousal.’ Often it is confined to the bed where the sexsomniac is already. Touching sexually another person close by is the most common occurrence. A sexsomnia episode can progress to sexual intercourse. However, sexsomnia is infrequently a multi-step process.
As a disorder recognized by the International Classification of Sleep Disorders (2016)3, sexsomnia is a NREM parasomnia characterized by:
a) recurrent wakings;
b) inappropriate responses;
c) no dream imagery;
d) event amnesic; and
e) lacking a better explanation through substance use or any other recognized disorder.
In the majority of occasions, Dr. Cramer Bornemann explained, sexsomnia occurs in the first third of the sleep cycle. There are no objective tests to confirm a parasomnia, or by extension, sexsomnia. Nor do objective tests exist for confusional arousal. To diagnose the condition, one must look to ancillary information such as individual self-reporting and family history.
Dr. Cramer Bornemann pointed out that sleepwalking is more prevalent in childhood. It affects 12-30% of children. It subsides with maturation of the brain. By adulthood, its frequency reduces to 3-7%. If one has no history in childhood, it is unlikely to develop later. If it does, one has to be skeptical.
Dr. Cramer Bornemann reviewed Dr. Fedoroff’s assessment of T.M. including the Sleep Study done by Dr. Douglass. Dr. Cramer Bornemann pointed out that a sleep study done months or years after the relevant events is not helpful. It will not be supportive of any findings. Such a study might rule out other disorders (e.g. nocturnal seizures), but its value is very limited otherwise.
Dr. Cramer Bornemann did not refute the finding of Dr. Douglass that T.M. suffers from Obstructive Sleep Apnea Syndrome. However, Dr. Cramer Bornemann explained that an apnea hypopnea index (AHI) of two per hour, as T.M. exhibited, is regarded as normal. That frequency is not impressive. Greater than 10 or 20 would be. An AHI of seven is where clinically one begins to worry. Then there is an increased risk of:
a) high blood pressure;
b) coronary artery disease; or
c) irregular heart rhythm.
An AHI of two is unlikely to have an impact on the development of any of the above conditions. Health insurers in the U.S. will not provide a CPAP T.M.e where the patient’s AHI is that low.
Treatment recommendations made by Dr. Cramer Bornemann for those diagnosed with sexsomnia would include avoidance of being near children when sleeping. If the patient has a sleep apnea, he would want that treated too. Medications are also an options.
Dr. Cramer Bornemann disagreed with Dr. Fedoroff’s decision to recommend a ‘post hoc’ sleep study. Clinical testing at a stage so temporally removed from the incidents in question have little worth. Dr. Cramer Bornemann likened it to ordering cardiac testing for a person who does not have a cardiac condition.
Dr. Cramer Bornemann would have preferred to see interviews of the complainants conducted. Further investigation of this nature would allow for a check on consistency between T.M.’s account and those he allegedly touched while in a disordered state.
Sleepwalkers will appear in an altered state. T.M.’s complainants said he was awake.
Dr. Cramer Bornemann was clear. The number of complainants was a significant factor in the formation of his opinion. Typically, sexsomnia is a rare phenomenon which materializes in isolated episodes. There has never been an occasion where it has been diagnosed over this many individuals.
Of the five complainants, T.M. was under the influence of alcohol with three of them (N.P, K.P. and S.P.). M.M. testified generally that T.M. was conscious in respect of the incidents involving her. There can be no doubt that he was awake when he touched K.F.
Sexsomnia, Dr. Cramer Bornemann propounded, is often a culmination of behaviours which started in childhood. Yet M.M., in spite of her nine year history with T.M., did not observe any sleepwalking on his part. The nocturnal incidents arose only after her pregnancy with their son, J., when M.M. was not interested in sex. T.M.’s nighttime sexual touching of M.M. then began happening, according to her evidence, at a frequency of two to three times per week. Dr. Cramer Bornemann viewed such behaviour by T.M. as “goal directed” as opposed to primal.
M.M. believed T.M. was awake because he was meticulous not to rouse her from slumber. She would feign sleep, and he would still engage in the same type of sexual touching. His acts were not isolated. They were repeated and patternistic. They did not disclose a spectrum of different activities.
In addressing T.M.’s involvement with K.P., Dr. Cramer Bornemann pointed out that T.M. had a significant amount of alcohol to drink in the lead up. He passed out. One cannot diagnose sexsomnia in such a case. Alcohol and drug consumption are barriers to a definitive finding of sexsomnia.
When pressed however, Dr. Cramer Bornemann acknowledged that there is contrary opinion amongst the scientific community as to whether alcohol can trigger sexsomnia.
Ultimately, Dr. Cramer Bornemann did concede that T.M.’s touching of K.P. could have been consistent with primal behaviour. It constituted a short and simplistic interaction with K.P.
Regarding T.M.’s involvement with S.P., Dr. Cramer Bornemann emphasized the use of alcohol, and the lack of proximity between where T.M. was and where S.P. was sleeping. Further, S.P. thought he was awake. Dr. Cramer Bornemann was of the view that a duration of 20 minutes for the entire incident, as S.P. estimated, seemed unusual.
To illustrate the significance of proximity, Dr. Cramer Bornemann used the example of a dog one observes lying on the floor clearly in a state of sleep, but he chases, bites and growls nevertheless. Those near to the dog would be far more vulnerable to contact and/or harm from the animal than those at a distance.
Under cross-examination, Dr. Cramer Bornemann clarified that alcohol intoxication, not simply alcohol use, precludes a diagnosis of sexsomnia. The international consensus in sleep medicine, he elaborated, focusses on whether the phenomenon is “…not better explained by substance use.” Dr. Cramer Bornemann asserted that there is no evidence of a connection between alcohol use and the onset of a parasomnic episode.
Dr. Cramer Bornemann was clear that he did not wish to refute the clinical judgment made by Dr. Douglass that T.M. has sleep apnea. Where the difference of opinion between Dr. Douglass and Dr. Cramer Bornemann arises is in how to interpret the data the sleep study produced. Dr. Cramer Bornemann continued to question the value of the evidence of the sleep study where it is conducted so long after the events in question.
Overall, Dr. Cramer Bornemann agreed that parasomnias are not uncommon. Three to seven percent of adults experience parasomnia. Some may only have one episode in an entire lifetime. The incidents occur when sleep pattern is interrupted. Often there is a family history. Chewing, swallowing, biting, locomotion and copulatory behaviours are all possible manners in which they can manifest themselves. Indeed, one can be capable of locomotion and copulatory behaviour. Dr. Cramer Bornemann went on to add though that it is possible to exhibit a series of complex behaviour when one is in a sexsomnic state, but as the level of complexity rises, so does the unlikelihood that the person was in a parasomnic state.
A hallmark of scientific verification for proving a theory, Dr. Cramer Bornemann agreed, is replication. The contention of Dr. Cramer Bornemann, shared by many of his colleagues in the international community that alcohol is not a parasomnic trigger, was a theory which has not been replicated.
Dr. Cramer Bornemann distinguished some parasomnias from confusional arousals. Examples of parasomnias are sleepwalking, sleepeating and sleepdriving. Confusional arousals, on the other hand, are defence posturing, kicking, punching, or sexual acts confined to the bed or sleeping area with another proximate person. It is possible for a confusional arousal to transmute into a parasomnic act. Dr. Cramer Bornemann offered the example of sleepeating beginning as a confusional arousal with chewing where the person then gets out of bed and sleepwalks to obtain food.
Consequently, Dr. Cramer Bornemann confirmed that a person can be asleep and cook food. So too can a person drive a vehicle, but the route taken must be very familiar to him or her (e.g. the route to work which a person has driven for the past five years). The same person would not be sleepdriving an 18 wheel transport truck if typically that is not a vehicle she or he would drive. The behaviours exhibited would have to be part of a routine the person follows. Where the behaviours deviate from the routine, one should become more skeptical.
Dr. Cramer Bornemann went on to agree that sleepwalking within one’s house could be routine. However, he disagreed pulling down panties, in the manner T.M. did, as testified to by M.M., would be routine, since M.M. spoke of the meticulous manner in which T.M. was doing it. Dr. Cramer Bornemann did nevertheless concede that pulling down panties is not an overly complex act. Nor would performing oral sex on a person be complex. Nor would inserting fingers into a woman’s vagina be intricate.
Dr. Cramer Bornemann explained that he would have expected some variety in T.M.’s behaviour, however again, he confirmed sexsomnic behaviours can be repetitive.
Further, Dr. Cramer Bornemann agreed that a person can have their eyes open and be in a sexsomnic state. A person can perform tasks that appear to be complex. A person can respond to questions.
Dr. Cramer Bornemann acknowledged that there is no link between the frequency of sex one is having and the onset of sexsomnia. Nor does libido affect the likelihood of sexsomnia manifesting itself.
Dr. Cramer Bornemann did allow for the possibility of a person engaging in sexsomnic sleepwalking. However, he felt such an event would be rare. It would be far more common for the person to, for example, fall asleep watching T.V., sleepwalk to bed, then the movement of the bed partner may trigger sexual behaviour in the person. Dr. Cramer Bornemann emphasized that the person had a reason to be in that room and continue their sleep. Dr. Cramer Bornemann was skeptical that T.M. would sleepwalk to a room where he did not usually sleep, as was the case with S.P.
A confrontation or an inquiry of the sexsomniac, Dr. Cramer Bornemann agreed, can interrupt the behaviour. Subliminal suggestions cannot be made of the sexsomniac. The sexsomniac speaks without awareness.
Dr. Cramer Bornemann reiterated that his consideration of all five complainants’ and M.M.’s claim to the high frequency of nocturnal episodes involving her would make T.M.’s claim for being in a sexsomnic state unprecedented. Dr. Cramer Bornemann did nevertheless concede that sleep disorders can go on for a long time.
Dr. Cramer Bornemann did not dispute that a parasomnic event, although more likely to occur in the first third of one’s sleep cycle, can happen in any part of the sleep cycle.
Last but not least, Dr. Cramer Bornemann agreed that a psychiatrist with significant training in sleep and using the DSM V can make a diagnosis of sexsomnia. When asked if he disagreed with Dr. Fedoroff’s opinion, Dr. Cramer Bornemann clarified the Dr. Dr. Fedoroff and he have different opinions. Dr. Cramer Bornemann considered Dr. Fedoroff’s opinion to be valid, but different from his.
In summary, Dr. Cramer Bornemann explained that in taking a global view of the complainants’ accounts and in drilling down, he could not attribute T.M.’s actions to either complex sleep behaviours or confusional arousals. At the end of the day however, Dr. Cramer Bornemann agreed that some of the incidents could be explained by parasomnias.
Issues:
Issues
- The evidence in its totality, as chiefly posited by the defence, raises the following issues for resolution:
N.P.:
a) Is T.M. not criminally responsible on account of mental disorder (“NCR-MD”) for sexually assaulting N.P. because at the time he commenced sexual activity with her he was in a parasomnic state?
b) Do I believe T.M. that the sexual activity he knowingly engaged in with N.P. was consensual?
c) If I do not believe T.M.’s evidence, does it raise a reasonable doubt as to whether the sexual activity with N.P. was consensual?
d) On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in T.M.’s guilt that he sexually assaulted N.P.?
K.P.:
e) Is T.M. NCR-MD for sexually assaulting K.P. because at the time he did so he was in a parasomnic state?
S.P.:
f) Is T.M. NCR-MD for sexually assaulting S.P., because at the time he did so he was in a parasomnic state?
K.F.:
g) Do I believe T.M. that when he touched K.F. in her bedroom, it was not for a sexual purpose?
h) If I do not believe T.M.’s evidence, does it raise a reasonable doubt as to whether the touching of K.F. was for a sexual purpose?
i) On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in T.M.’s guilt that he sexually assaulted K.F.?
M.M.:
j) Is T.M. NCR-MD for sexually assaulting M.M. on five distinct occasions, because at the time he committed the acts, he was in a parasomnic state?
k) Do I believe T.M. that he did not assault M.M. on or about May 18, 2016?
l) If I do not believe T.M.’s evidence, does it raise a reasonable doubt that he assaulted M.M.?
m) On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in T.M.’s guilt that he assaulted M.M.?
n) Has the Crown proven beyond a reasonable doubt the offence of mischief, where the undisputed evidence is that the property in question, a dwelling house, was not owned by M.M., and is not a property in which she holds any legal interest?
Law:
Law
- R. v. Chase (1987), 1987 CanLII 23 (SCC), 2 S.C.R. 293, remains for more than three decades the leading case on what constitutes a sexual assault. At para. 11, McIntyre J provided the following commentary:
“Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.”
As recently as last month, the Court of Appeal for Ontario was citing Chase with approval as its authority for how to determine whether an assault is considered sexual or not (see R. v. Anderson, 2018 ONCA 1002).
Where a defence of sexsomnia is raised, as clarified by Doherty J.A. in R. v. Luedecke, 2008 ONCA 716 at paras. 2 and 3, the trial judge must ask himself the following questions:
a) Were the respondent's actions involuntary?
b) If the respondent's actions were involuntary, were they the product of a mental disorder, thereby rendering him NCR-MD?
The first question goes to the respondent's culpability. If the respondent's actions were involuntary, he could not be convicted. The second question addresses the proper disposition to be made if the respondent's actions were involuntary. If his involuntary actions were the product of a mental disorder, a finding of NCR-MD was the appropriate verdict. However, if the actions, while involuntary, were not the product of a mental disorder, an acquittal simpliciter was the appropriate result. Persons found NCR-MD are subject to the provisions of Part XX.I of the Criminal Code, R.S.O. 1985, c. C-46. Orders made pursuant to those provisions can impose significant long-term restrictions on an individual's liberty. Persons who are acquitted simpliciter are not subject to any further proceedings or restrictions.
- Doherty J.A. goes on to explain at paras. 6 and 7:
“[The sexsomniac] personifies one of the most difficult problems encountered in the criminal law. As a result of his parasomnia, he did a terrible thing, he sexually assaulted a defenceless, young victim. The reason for his conduct -- automatism brought on by parasomnia -- renders his actions non-culpable in the eyes of the criminal law. That very same explanation, however, makes his behaviour potentially dangerous and raises legitimate public safety concerns. An outright acquittal reflects the non-culpable nature of the conduct but does nothing to address the potential danger posed by the respondent's condition. The Canadian criminal law responds to the public safety concerns by treating almost all automatisms as the product of a mental disorder leading not to an acquittal but to an NCR-MD verdict. That verdict acknowledges that the accused committed the prohibited act but is not criminally culpable. An NCR-MD verdict also permits an individualized post-verdict dangerousness assessment of the accused leading to a disposition tailored to the specifics of the individual case. On a proper application of the principles developed in the Canadian case law, the respondent's automatism is properly characterized as a mental disorder and should have led to an NCR-MD verdict.
I would stress, however, that an NCR-MD verdict is not a medical diagnosis of the respondent. No one suggests that he is mentally ill. The criminal law uses the concept of mental disorder very differently than the medical profession. The concept of a mental disorder in the criminal law is used to describe those accused who have committed criminal acts but because of some abnormal mental state are unable to conform their behaviour to the dictates of the criminal law. A determination that an accused suffers from a mental disorder is more a reflection of the need for a further inquiry into the dangerousness of that accused than it is an assessment of his or her medical condition.”
- In R. v. B.M., 2018 ONCJ 582, West J. provided a thorough, yet concise review of the law governing automatism and involuntary acts. At paras. 130 to 132 of the decision, West J. wrote:
130In R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No. 27, at paras. 171 and 180, the Supreme Court held the law presumes an individual’s acts are voluntary. This presumption is rebuttable. Therefore, because a claim of automatism amounts to a claim that the conduct of a person charged was not voluntary, the defendant bears the burden of rebutting the presumption of voluntariness on a balance of probabilities (see also R. v. S.H., [2014] O.J. No. 1890 (C.A.) at para. 64).
131In a recent case, R. v. Desrosiers, [2017] O.J. No. 2295 (OCJ) at para. 51, Justice Gage summarized the principles to be derived from R. v. Stone, supra, which I adopt:
Automatism is defined as "a state of impaired consciousness, rather than a state of unconsciousness, in which an individual, though capable of action, has no voluntary control over that action." (Stone, para. 155)
In cases involving claims of automatism the burden is on the defence to prove involuntariness on a balance of probabilities. (Stone, para.179)
Initially the defence carries the burden of establishing a proper foundation for the defence of automatism by asserting the claim of involuntariness and providing the court with psychiatric or psychological evidence that the assertion is plausible assuming that a factual scenario advanced by the accused that identifies some evidence from which a jury could reasonably infer that the accused acted in a state of automatism. (Stone, paras. 169 and 187)
With respect to the weight to be attached to expert opinion on this issue the court notes: "If the expert testimony establishes a documented history of automatistic-like dissociative states, it must be given more weight than if the expert is simply confirming that the claim of automatism is plausible." Whether there is a documented history of prior episodes or not the trier of fact should be mindful that the value of the opinion is very much dependent on the accuracy and reliability of the account of the events provided by witnesses including the accused. (Stone, para. 186)
Evidence of a documented history of automatistic-like dissociative states will assist the defence in satisfying the initial burden. The more similar the pattern of dissociation is with the current claim the more persuasive the evidence will be on the question of involuntariness. ((Stone, para. 189)
Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy eyed, unresponsive or distant immediately before, during or after the alleged involuntary act will be relevant to the assessment. (Stone, para. 190)
A motiveless act will generally lend plausibility to the accused's claim of involuntariness and conversely a motive to commit the crime will reduce plausibility. The court should examine whether or not the crime in question is explicable without reference to the alleged automatism. (Stone, para. 191)
If the defence satisfies the initial burden of demonstrating on a balance of probabilities that the defence is plausible the issue may be left to the jury. It is then up to the jury to determine if, as trier of fact, it is satisfied that based on the evidence that it accepts the defence is established on a balance of probabilities. In the context of a judge alone trial the presiding judge performs both functions. (Stone, para. 192)
If the trier of fact is satisfied that automatism is proven then the further step of determining if the automatism established is mental disorder automatism as opposed to non-mental disorder automatism. (Stone, paras. 193-199)
132A recent decision by Watt J.A. in R. v. S.H., supra, also provided a comprehensive review of the burden and standard of proof where automatism is asserted by the defence, see paras. 60-72. Justice Watt held that the term “burden of proof” is used in two senses in cases of automatism (at para. 65):
The first, often described as the "evidentiary burden", refers to the obligation of a party to adduce evidence sufficient to warrant consideration of an issue by the trier of fact. The second, referred to as the "legal burden" or "persuasive burden", describes the obligation of a party to prove or disprove the fact at issue. Both apply to claims of automatism. As a matter of general principle, the legal burden follows the evidentiary burden. This is so for automatism: Stone, at paras. 173 and 182.
- I am also guided by the very sage direction offered by Moore J. in R. v. Hartman, 2018 ONCJ 899 , where she wrote at paras. 242 to 251:
“ASSESSMENT OF EVIDENCE
242The importance of sufficient reasons has been set out in many cases, including, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, R. v. Dinardo,
2008 SCC 24, [2008] S.C.J. No. 24, and R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52. I recognize that I am not required to set out in detail each and every fact considered, or every legal principle that guided me in making my decision. However, setting out a number of these principles will assist the parties in understanding how I approached my responsibilities.
243I may accept some, all, or none of any witness’s evidence. It is not an “all-or-nothing” situation. I may also apply less or more weight to various aspects of the evidence. (R. v. M.M., [2018] O.J. No. 4284 (S.C.J.). This is especially important when one considers inconsistencies. There will be some inconsistencies that are significant, and others that are less so.
244Although my task is limited to determining whether or not Mr. Hartman is guilty of sexual assault or whether he is not criminally responsible, credibility and reliability are still important considerations in this case.
245Assessing credibility is a difficult task, and a significant responsibility. (R. v. Gagnon, 2006 SCC 17, [2006] S.C.J. No. 17; R. v. B.W., [2009] O.J. No. 4094 (S.C.J.). In R. v. B.W., supra, the Court describes this as follows, at paragraph 31, “[t]he assessment of credibility is often the primary and the most daunting task that the trier of fact faces in a criminal trial, involving determinations of the truthfulness of witnesses and an assessment of their reliability.”
246Credibility involves an assessment of whether the witness is being truthful. Reliability, on the other hand, refers to whether the witness is accurate in how he or she remembers and recounts the evidence.
247In assessing the evidence of the witnesses, it is important that I do not approach it as a choice or contest between the evidence of the Crown witnesses and the evidence of Mr. Hartman, or in fact between any of the witnesses at all. (R. v. Ing, [2013] O.J. No. 98 (O.C.J.).
248While I must not approach the evidence in an either/or manner (and of course must be mindful of the fact that I am not required to accept all of the evidence of any given witness), I am entitled to compare the evidence of the witnesses. At paragraph 88 of R. v. Ing, supra, the Court stated that, “[e]xperience tells us that one of the best tools to assist in determining credibility and reliability is the careful and repeated testing of the evidence to see how it "stacks up", so to speak. In other words, how does a witness' account stand in harmony with the other evidence, while applying the appropriate standard of proof.”
248The Court must also not judge the evidence of Mr. Hartman more harshly than the evidence of the other witnesses. His evidence is to be considered as part of the evidence as whole. (R. v. Ing, [2013] O.J. No. 98 (O.C.J.). As stated in R. v. Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 (C.A.), at paragraph 15, “the proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation.” Thus, when I consider Mr. Hartman’s evidence, I will do so as I consider it alongside the evidence of the other witnesses.
249Where witnesses gave statements, or as in the case before me, testified previously, it is important to consider the following passage from R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (C.A.), at paragraph 23:
250Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.
251I have kept each of these principles at the forefront as I considered the evidence in this case.”
Analysis:
Issue 1: Is T.M. NCR-MD for the sexual assault on N.P.?
Analysis
Applying the Luedecke approach, I must first ask myself if T.M.’s conduct in relation to N.P. was voluntary. There appears to be some consensus in N.P.’s, M.M.’s, and T.M.’s own evidence that T.M. initiated physical contact with N.P. She heard the rustlings of someone – a man who was lying beside her. He rubbed his face against hers, and grunted her first name in her ear. M.M. walked into the living room to hear T.M. mumbling and telling N.P. he loved her. T.M. testified he fell asleep on the L-shaped couch with his head near N.P.’s at the corner. His next conscious memory is waking to M.M. yelling. She had hold of his testicles.
Dr. Fedoroff could, at best, offer a general opinion that, having:
a) reviewed extensive materials,
b) interviewed T.M. and L.B., and
c) consulted with Dr. Douglass,
he could safely conclude that T.M. has sexsomnia.
Dr. Cramer Bornemann differed in his opinion and disagreed that T.M. could be diagnosed with sexsomnia.
Having assessed the evidence as a whole, I cannot find that T.M.’s actions in relation to N.P. – to commence sexual activity with her and to continue it thereafter – were involuntary and consensual respectively. I reach this finding for several reasons.
Firstly, T.M. stated that he wanted to have a “quicky” with his partner, M.M. after they returned from the bar. Sex was clearly on his mind. When he ultimately located M.M. in the daycare, he knew N.P. was present in his home. He saw a female on his living room couch on his way downstairs to look for M.M. He knew it was either K.F. or N.P. on the couch. He knew both were likely intoxicated, since they had been, a short while earlier, thrown out of Exciters for being drunk.
When he gave up on his hope of having sex with M.M., by leaving her to sleep on the floor in the daycare area of their home, he agreed, after a long pause in his evidence, that he acted on M.M.’s direction to go bug K.F. There was perhaps a developing realization on his part that his reason for doing so would be called into question.
Secondly, I am not at all satisfied that T.M. ever went to find K.F. Instead, he chose to lie on the couch, as he contended, simply to await his partner, M.M. This claim makes absolutely no sense. T.M. had his own bed to which he could easily return. Instead, he stopped along the way, and voluntarily positioned himself near N.P.
Thirdly, I find that T.M.’s desire to have sex did not quickly dissipate upon leaving M.M. to sleep on the floor. Indeed, when M.M. awoke, she found T.M. making advances upon N.P. M.M. was understandably outraged.
Fourthly, Dr. Fedoroff in his evidence was clear to limit his general opinion as to his sexsomnia diagnosis for T.M. Dr. Fedoroff was quite candid and correct in pointing out that he could not answer the question of whether T.M. was in a sexsomnic state when he engaged in any of the activity forming the subject matter of his outstanding sexual assault charges. Indeed, Dr. Fedoroff at the outset conceded that an explanation for many of T.M.’s behaviours in question could be attributed to sexual disinhibition brought on by alcohol consumption.
I am persuaded that T.M.’s state – as described by M.M. as “out of it,” and “incoherent” and “not fully present” – appears, at first blush, to have some of the trappings of parasomnia. However, M.M. was clear. She was describing T.M. in a state of intoxication by alcohol – not in an impaired state of consciousness. She did not believe T.M. was asleep. He was talking to her. Having listened carefully to her evidence and observed her demeanour, I find that M.M. was relating that T.M. was responding to her questions and comments she made to him as soon as he knew his conduct in relation to N.P. had been discovered by his then common law partner.
I place no great weight on M.M.’s decision to record the event. She did not purposefully discard or destroy the “smoking gun.” I accept what she said about the low level of light in the living room. Clearly, she was shocked by what she was witnessing – an act of infidelity committed by T.M. while she was in a nearby room. She likely did wish to capture the event, and I do find her evidence credible that the video, due to a lack of lighting, depicted hardly anything. She did confirm that T.M. could be heard to say, “I love you” on it, but without video, this audio recording would have little to no value.
In my view, what M.M. saw was the beginning of T.M.’s advance on N.P. Once caught, T.M. stopped what he was doing. He followed M.M. upstairs. N.P. could hear the arguing from the couch. T.M. then made a conscious decision to return to the couch with N.P. after M.M. fell back to sleep. I am not persuaded at all that T.M.’s conduct toward N.P. was involuntary. Even if I did accept the defence argument that his conduct started in a parasomnic state and morphed into a consensual sexual encounter between N.P. and T.M., which I do not, I find as a fact that T.M. did go back downstairs to N.P. on the couch. That choice was calculating on T.M.’s part. T.M. knew what he was doing. He wanted to have sex with N.P.
Issue 2: Do I believe T.M. that the sexual activity with N.P. was consensual?
Issue 2: Do I believe T.M. that the sexual activity with N.P. was consensual?
I do not. I reject T.M.’s account of what occurred with N.P. for several reasons.
Firstly, T.M. testified that once M.M. found him on the couch with N.P., M.M. was enraged. She squeezed his testicles forcefully. It makes no sense that he physically would be capable of engaging in sexual intercourse with N.P. for hours afterward – with N.P. on top of him – exerting pressure on what is a tender area for a male at the best of times.
Secondly, T.M. wanted to preserve and somehow repair his relationship with M.M. after what she witnessed she saw occurring between N.P. and him on the couch. Surely, he would have been motivated to follow her and stay with her, but for his continued designs on N.P. I do not accept his evidence that he stayed on the couch near N.P. and fell back asleep.
Thirdly, he agreed that he had little interaction, and not the slightest in the way of romantic exchanges with N.P. earlier at the bar. That he would awaken to a virtual stranger, N.P., performing oral sex upon him is pure fantasy, especially when N.P. knew that his partner was likely sleeping in a room upstairs. The vigour and duration of the sexual attention N.P. paid to T.M. must have created some noise. That T.M. would expose himself to being caught in the throes of passion with N.P. is most incredible. A consensual sexual event, as T.M. described it, did not happen.
Fourthly, T.M. is very capable of deceit. When confronted in the morning by K.F. and M.M. about his knowledge of why N.P. was no longer in the house when they awoke, he agreed he lied to them about what he knew regarding N.P.’s decision to leave. He told them he did not remember anything of a sexual nature happening between N.P. and him. T.M. knows full well the value of a lie when it suits his purpose.
In summary, I find T.M.’s evidence about his level of recall regarding the commencement of his interaction on the couch with N.P. and his account of the sexual activity with her thereafter wholly incapable of belief.
Issue 3: Does T.M.’s evidence raise a reasonable doubt?
Issue 3: Does T.M.’s evidence raise a reasonable doubt?
- It does not. For the reasons I have articulated in rejecting T.M.’s evidence, I adopt them in concluding that I am not left in a state of reasonable doubt by his evidence.
Issue 4: What evidence do I accept and does it convince me that T.M. sexually assaulted N.P.?
Issue 4: What evidence do I accept and does it convince me that T.M. sexually assaulted N.P.?
I accept N.P.’s evidence about what she felt and remembered about T.M. touching her in spite of her level of intoxication. She did not attempt to downplay her impairment by alcohol. She agreed that she was passed out. However, the snippets of recollection she does have are clear and convincing for me as trier of fact.
N.P. heard T.M. grunt her name. She felt his beard on her face. She discovered her pants down. She felt T.M.’s hand on her breast – whether wearing a bra or not.
I find that N.P was truthful in testifying about how she was touched by T.M. for a sexual purpose.
I find that the commencement of T.M.’s sexual advances upon N.P. were witnessed by M.M., when T.M. was conscious and aware of what he was doing.
I am absolutely sure, in assessing the whole of the evidence relating to N.P., that the Crown has discharged its burden of proving T.M.’s guilt beyond a reasonable doubt. I must find T.M. guilty of sexually assaulting N.P.
Issue 5: Should T.M. be found NCR-MD for sexually assaulting K.P.?
Issue 5: Should T.M. be found NCR-MD for sexually assaulting K.P.?
Defence counsel was clear in his submissions that the evidence made out “…some type of sexual misconduct with [K.P.] on the couch to which she did not consent.” The only issue is whether T.M., at the time the misconduct occurred, was in a parasomnic state.
While it is true that K.P. did not have much more than a brief opportunity to discern whether T.M. was awake, it did not prevent her from making that determination. I would expect that almost everyone who awakens to being sexually touched, especially by someone who is not his or her sexual partner, has but a second or two to realize what is occurring before the conduct of the perpetrator ceases. No one, of course, can consent to sexually activity if he or she is asleep.
It is clear that K.P. was intoxicated at the time she fell asleep. She likely smoked marijuana as well with T.M. before dozing off.
When she awoke to D.H.’s exclamation “What the hell!”, she felt T.M.’s hand rubbing on her vagina. T.M. was sitting closer to her than where she remembered he had been when she initially fell asleep.
According to K.P., T.M. was apologetic in the moment. He stopped what he was doing right away. K.P. did not believe he was sleeping. She described his eyes as “awake.” Indeed, he apologized to her again the next day. He may have said, “Sorry. I thought you were M.M.”
On the other hand, T.M. testified that K.P. and he both fell asleep on the couch. When he awoke, K.P. was no longer present on the couch. Under cross-examination however, he was unclear initially about whether K.P. was with him on the couch when he awoke. Eventually, he resolved the inconsistency by stating he believed she would have gone to bed. He did not remember the events as testified to by K.P. Indeed, he told K.P. and M.M. the next day that he did not remember what happened, but he did not believe K.P. would lie about what happened.
Again, Dr. Fedoroff’s evidence about this event cannot particularize whether at the time T.M. rubbed K.P.’s vagina, he was in a state of parasomnia, confusional arousal or disinhibition through intoxication. I am thus unable to find that T.M. has met the burden of proving on a balance of probabilities that his behaviour in relation to K.P. was involuntary. Each of the three conditions can explain what occurred. No single one carries the day and satisfies the legal burden on the defence that, on a balance of probabilities, T.M.’s conduct has been demonstrated to be involuntary.
In my view, K.P.’s account of the incident has the clear ring of truth. T.M. would be apologetic in the moment, and embarrassed the next day. He was caught touching his partner’s cousin’s private area. K.P. was content, as was T.M. and M.M., to chalk the incident up to drinking. That appeared to be the consensus at the time for explaining T.M.’s behaviour. Other concerns prevailed. K.P. did not want this event to end M.M.’s and T.M.’s relationship.
In objectively assessing the evidence as a whole in respect of the incident involving K.P., I simply am not satisfied that T.M. has proven on a balance of probabilities that his conduct (i.e. the rubbing of K.P.’s vagina) was involuntary. Furthermore, I reject T.M.’s evidence that he had no memory of the incident. When he is confronted by M.M., he does not say, “I must have been sleeping,” and/or “I thought it was you [M.M.] I was touching.” That ought to have been his explanation, if it were true. It was not.
The testimony of D.H. does not give me pause where it conflicts with K.P.’s. D.H. thought he saw something. His opportunity to observe what was happening on the couch between K.P. and T.M. was fleeting. D.H.’s relationship with K.P. was nearing an end in any event. He never bothered to seek an explanation from either K.P. or T.M. His account of what he saw does not detract in my mind what I accept as a clear and cogent series of events which K.P. remembered, not perfectly, but quite convincingly nevertheless.
On a comprehensive assessment of the evidence regarding K.P., I find that the Crown has proven beyond a reasonable doubt T.M. sexually assaulted K.P.
Issue 6: Should T.M. be found NCR-MD for sexually assaulting S.P.?
Issue 6: Should T.M. be found NCR-MD for sexually assaulting S.P.?
Defence counsel, quite properly again, conceded that S.P. was an honest witness whose account of the incident should be believed. The position taken by the defence is that T.M. ought to be found NCR-MD, because at the time he engaged in a sexual encounter with S.P., it was without her consent, but he was in a parasomnic state.
Again, I must point out that Dr. Fedoroff did not particularize his opinion on T.M.’s state of consciousness in respect of the allegations made by S.P. He certainly did allow for a series of complex behaviours to be undertaken by a parasomniac. Sleep eating and sleep driving are all known phenomena which a person in an involuntary condition can execute. However, as explained by Dr. Cramer Bornemann, sexsomnia typically manifests itself in brief, non-complex movements. Usually, it is confined to the bed where the sexsomniac is already sleeping. A sexsomnic episode is rarely a multi-step process.
In her evidence, S.P. recalled drinking only a moderate amount of alcohol the night before the incident with T.M. occurred. She probably had three beers. When he came into the room in his house where she was sleeping, she was facing the wall. She turned around to know it was T.M. She believed he was awake because his eyes were open. He did not say anything. He groped her chest and genitals. He was behind her. She curled into a ball. She tried to push his hands away. He grabbed her hand and put it on his genitals. He kept trying to get her to touch him.
S.P. recalled that his gestures became more aggressive when she tried to repel his advances.
T.M. remembered having six beers the night before. M.M. went to bed first and he followed. Their bedroom is upstairs. The room where S.P. was sleeping was downstairs. T.M. testified that he had absolutely no recollection of entering S.P.’s room and touching her. He was not suggesting that S.P. lied about what happened between them. He knew it was not consensual.
On an assessment of the whole of the evidence relating to S.P., I cannot find that the defence has met its burden of proving the acts T.M. engaged in with S.P. were involuntary. I come to this conclusion for several reasons.
Firstly, I accept Dr. Cramer Bornemann’s opinion that as a general rule, the more complex the acts, the less likely it is that the person in question is in a sexsomnic state. Here, T.M. would have been required, while in an involuntary state, to:
a) exit the bed without waking M.M,
b) negotiate the hallways and stairs,
c) enter a room typically he would not associate with sleeping,
d) navigate his way to the bed where S.P. was sleeping in the dark,
e) lift her blankets,
f) position himself behind her,
g) retreat from the room after 20 minutes, and
h) return to his own bed without waking M.M.
At a minimum, that would be several steps, three of which c), d) and f) could hardly be considered rote or routine behaviours which T.M. would perform.
Secondly, T.M. was reacting aggressively to S.P.’s attempts to prevent herself from being groped. The reaction, to my mind, betrays a conscious determination to achieve what T.M. was setting out to do, namely to obtain some form of sexual gratification from S.P.
Thirdly, T.M. is putting S.P.’s hand on his genitals. In other words, he is inviting a reciprocated and consensual form of sexual activity. Such conduct is far more likely to be the product of an operating mind.
Assessing the evidence as a whole of T.M.’s conduct in respect of S.P. as I must, I find that I have not been satisfied on a balance of probabilities that he was in an involuntary state when he entered S.P.’s room, and touched her as he did. Accordingly, I must find T.M. guilty of sexually assaulting S.P.
Issue 7: Do I believe T.M.’s account that when he touched K.F., it was not for a sexual purpose?
Issue 7: Do I believe T.M.’s account that when he touched K.F., it was not for a sexual purpose?
At its core, T.M. contends that when he entered K.F.’s bedroom and touched the middle part of her thigh, he was simply trying to wake her. The touching thus had no sexual connotation. It was the type of touch one resorts to in order to get the attention of another individual. It is akin to tapping an unsuspecting person on the shoulder. No assault occurred because there is implied consent on a societal level to this type of behaviour. Alternatively, the force applied is ‘de minimis’ and therefore does not attract criminal liability.
T.M. placed the timing of this incident in July of 2015. K.F. thought it occurred some months later into October of 2015. Where there is no disagreement is the timing of a text exchange between T.M. and K.F. on February 21, 2016. The first message of the series sent by T.M. to K.F. read:
“I wanna apologize for everythin [K.F.] I feel terrible for putting u in that situation. Know that im getting help and I hope u can understand the suspicions I had about that guy. I don’t want u to be uncomfortable around me I am a good person just been through the meat grinder for years. I really am sorry for everythin.”
- T.M.’s texts to K.F. continued as follows:
“So the night I went in ur room was the night [M.M.] slept with S.B. I knew it when she came home her eyes were glass like she had been crying which I asked if she was cryin said no I asked her if there was anything she needed to tell me and she said no went to bed. I think that’s why I did what I did [K.F.] it was wrong and I realized right away I think I said I dunno wtf im doin here
Ok lol srry
I knew that night she did it
Srry I went in ur room.”
- K.F. responded with:
“Ok but the other times with other people”
- T.M.’s response to that text from K.F. was quite telling. He wrote:
“yes drunk I changed thay”
I reject T.M.’s evidence that he simply touched K.F.’s leg to wake her for several reasons.
Firstly, T.M. reflected on putting K.F. in a “situation,” one for which he felt “terrible” and was “getting help.” He does not want her to be “uncomfortable” around him. The language he chooses belies a simple apology for rousing a person out of slumber and startling her.
Secondly, he acknowledged the wrongfulness of his conduct. He came to a sudden realization of its moral blameworthiness. His second text from February 21, 2016 was an explanation for his licentiousness with his common law partner’s sister, K.F. T.M. was seeking ‘pay back” for M.M.’s infidelity. It was his way of getting some form of revenge. However, he had an epiphany in the moment that K.F. did nothing to deserve such treatment. That is why he thinks he said, “I dunno wtf im doin here.”
Thirdly, the mention by K.F. to “…other times with other people” was a reference to incidents T.M. readily appreciated. His response demonstrated that he understood K.F.’s concern, and he assured her that his problem has been addressed -
“yes drunk I changed thay”
Issue 8: If I do not believe T.M.’s evidence, does it nevertheless raise a reasonable doubt?
Issue 8: If I do not believe T.M.’s evidence, does it nevertheless raise a reasonable doubt?
- It does not. For the reasons I have rejected T.M.’s evidence, I find as well that they apply equally in failing to raise a doubt in my mind about the sexual nature of his touching K.F.
Issue 9: On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt that T.M. sexually assaulted K.F.?
I am.
Indeed, I am so convinced in spite of K.F.’s sudden recall in giving her evidence that T.M. spoke of his possible erectile dysfunction when he tried to justify his conduct. I seriously doubt he said anything of the sort, but it matters little. A sexual assault is an assault which has a sexual or carnal context to the reasonable observer. I accept as solidly proven that T.M. entered K.F.’s room, knelt beside her and touched her on her thigh underneath her bed covers. I find he rubbed her thigh as though caressing or petting it. Indeed, his texts from February 21, 2016 plainly acknowledge the sexual context of the intrusion into K.F.’s room and the touching of her, when the exchange is read as a whole.
Accordingly, I must find T.M. guilty of a sexual assault upon K.F.
Issue 10: Is T.M. NCR-MD for five distinct sexual assaults committed upon M.M. because he was, on each occasion, in a parasomnic state?
Issue 10: Is T.M. NCR-MD for five distinct sexual assaults committed upon M.M. because he was, on each occasion, in a parasomnic state?
It is a difficult to discern exactly what the five separate incidents of sexual assault were, which the Crown alleged in the Information before the Court, and upon which T.M. was tried. Counts 1 to 4 allege sexual assaults to have been committed by T.M. upon M.M. between March 1 and May 25, 2016. Count 5 alleges a sexual assault committed by T.M. upon M.M. between September 1, 2011 and October 31, 2015.
It was clear from the evidence of M.M. that sexual assaults were occurring at an alarming rate. For a span of three years, at a frequency of two-thirds of the time per week, T.M. tried to remove M.M.’s clothing and touch her vagina or anus, according to her, while she slept. However, the incidents the Crown focussed upon were:
a) an occasion between mid-March and May 4, 2016 where she awoke, having gone to bed some hours earlier, to T.M. performing oral sex upon her. Her pyjama pants or yoga pants were pulled down. They were at her ankles or off completely upon waking. She pushed or kicked T.M. away. He apologized. He told her he would stop doing it;
b) an occasion again between mid-March and May 4, 2016 where M.M. alleged that she awoke in their bed to T.M. rubbing her vagina with his penis. She wore the same type of clothing to bed. Her evidence then changed to not remembering if he was rubbing his penis on her. She could not recall if her pants were down. What she appeared to be sure of was that his hands were touching her vagina. The contact he was making was not above her clothing. She could not recollect if upon waking she was lying on her back, or her left side. She told him to get off of her. He did right away. He rolled over and went to sleep. M.M. could not remember if she rolled over and went to sleep in the bed herself, or if she went to the couch;
c) an occasion on May 4, 2016 where M.M. went to bed around 10:00 p.m. She awoke at approximately 2:00 a.m. T.M. had his fingers in her vagina with her pants half-way down around her knees. He was lying behind her with his arm up and over her legs. M.M. was not saying anything or making any noise. She believed she told him to stop and leave her alone. T.M. said he would. She fell back asleep; however, she awoke a few hours later to him attempting to do it again. He had his two hands at the waist of her pyjama pants trying to pull them down. M.M. knew T.M. was awake because of how carefully he was in his attempt to get them down. He stopped upon her command to do so. He did not appear confused at the time. The next day, he apologized, acknowledged it was wrong and indicated he would seek counselling;
d) an occasion on May 14-15, 2016 when M.M. went for a ‘girls night out.’ She first went to her friend S.B.’s before going to a stag party. She drank over the course of the night roughly four double vodkas. T.M. was at home caring for their children. Between 1:00 – 2:00 a.m. on May 15, 2016, he began to get upset at M.M. for not being home yet. He was also annoyed that Jeff, the man she had been seeing during their separation some months earlier, was also at the party. She returned home at approximately 4:30 a.m. She wanted to sleep on the couch. She knew their children would be up soon. T.M. prevented her from sleeping there. He kept asking her to come to bed. Eventually, she agreed upon receiving T.M.’s promise to leave her alone. She awoke at roughly 6:00 a.m. to T.M.’s fingers inside her. He called her a “cunt” and accused her of sleeping with Jeff. He told her he was checking to see if she cheated with Jeff. They discussed the incident further via text messages the next day; and
e) an occasion or occasions where she would awaken to T.M. trying to put his penis in her vagina. Usually, she would be facing away from him. He would be behind her. He would have his boxers off or have his penis sticking through them. She normally would wake up to the force of his penis on her vagina or anus. Some mornings however she would wake up feeling sore. There would be fluids in or around her vagina or anus. The second time this occurred, she confronted T.M. and he admitted to ejaculating on her. He apologized. Her best estimate of when this happened was after she became pregnant with their son, J., because she no longer felt like having sex with him at the frequency they did before.
The defence does not vigorously contest M.M.’s credibility. Instead, and quite appropriately, her reliability is questioned due to the passage of time, and on occasion, her ability to recall and perceive events. Her ability may have been compromised at times through alcohol consumption. The crux of the defence is that T.M., on the occasions mentioned above, was afflicted by a mental disorder. He was incapable of appreciating the nature and quality of his acts at those specific times because he was in an involuntary, parasomnic state.
I must therefore ask myself if the defence has satisfied me on a balance of probabilities that T.M.’s actions, on the above occasions, were involuntary.
I am not so satisfied for a number of reasons.
Firstly, I must point out again the shortcoming of Dr. Fedoroff’s opinion is that it does not assist me in determining whether T.M. was in an involuntary condition in respect of the occasions above where M.M. testified she was sexually assaulted by T.M. On the one occasion where the specifics of the allegation are put to Dr. Fedoroff, the incident where T.M. was checking to see if M.M. had sex with Jeff, Dr. Fedoroff’s evidence was, “…that sounds as though he [T.M.] was doing that voluntarily…like not a sexsomnia act.”
Secondly, to be very clear, the diagnosis of sexsomnia made by Dr. Fedoroff a year and a half or more after the last of the occasions mentioned above does not mean that T.M. was in a parasomnic state at those times. At best, Dr. Fedoroff’s opinion simply confirms T.M.’s claim to being in an automatic state is plausible. In his written report dated November 29, 2017, Dr. Fedoroff said as much. He wrote:
“Of course, the ultimate question of whether T.M. was unaware of his sexual activities due to sexsomnia is for the trier of fact to determine. From a psychiatric perspective, sexsomnia and confusional arousal secondary to intoxication from alcohol and marijuana are both possibilities. However, the family and personal history of parasomnic disorder makes sexsomnia a viable diagnosis.”
Thirdly, Dr. Fedoroff did not conduct interviews with T.M.’s family members, for example, his mother or brother, to corroborate T.M.’s account of a history of sleepwalking or sleeptalking. Dr. Fedoroff knew that T.M. scored high on the Paulhus Deception Scale. Confirmation of past parasomnic states such as sleepwalking or sleeptalking witnessed by those who knew T.M. as a child would have been helpful in assisting the defence with meeting its burden. That evidence was lacking. M.M., of course, witnessed no incidents of sleepwalking or sleeptalking in T.M. during the course of their nine year relationship. Nor did K.F. in spite of her extended stays with T.M. and M.M.
Further, any corroboration or reliance placed by Dr. Fedoroff on L.B.’s accounts of what she observed T.M. doing is highly suspect. L.B. was far from an independent witness. Her desire to say whatever to support the defence theory of sexsomnia was patent. I do not question L.B.’s love for and commitment to T.M. However, her bias reduces her evidence to near valuelessness.
Fourthly, Dr. Fedoroff’s basis for reaching a diagnosis of sexsomnia for T.M. did not appear particularly rigorous. He testified:
“…when people come in and they say that I think I have sexsomnia, that often is enough.”
With respect, given this forensic psychiatrist’s knowledge that his patient was facing criminal charges involving five different complainants, I would have expected a more ‘in depth’ inquiry into the possibility of malingering, especially in light of T.M.’s high scores on the Paulhus Deception Scale.
Fifthly, in respect of the above occasions where T.M. is said to have sexually touched M.M., it can hardly be described as a motiveless act. T.M.’s conduct could be explained by way of a strikingly obvious reason – sexual gratification.
Sixthly, I do not believe T.M.’s evidence that he admitted to anally penetrating M.M. simply to put an end to the conversation when he was being challenged by her about it. To do so would not have ended the issue, it would have exacerbated it. I fail to see how admitting to penetration on a grander scale – penal versus digital – would appease M.M. in any possible way.
For these reasons, I find that T.M. has not met his legal burden of persuading me on a balance of probabilities that he was, at the time he sexually touched M.M. on the above occasions, in an involuntary state. I find to the contrary that his acts were conscious, and at times, quite calculating. His intent was to violate the sexual integrity of M.M. when she was unconscious. I must therefore find him guilty for the sexual assaults upon M.M., with which he has been charged.
Text Messages:
Text Messages
- The defence argues that the text messages authored by T.M., or exchanged with M.M., were in some ways unhelpful in determining whether the nocturnal incidents were manifestations of sexsomnia or not. I disagree. What T.M. expressed in many of his texts demonstrated both a keen awareness of what he was doing to his partner, M.M. and a consciousness of his guilt. I shall provide but a few examples.
February 26, 2016:
- During their period of separation from November 2015 to March 2016, T.M. and M.M. agreed to a ‘week about’ arrangement to care for their children. While their daughter, Tx. was with T.M., he sent a photo of her in his bed. M.M. was concerned. She allowed for the possibility that what T.M. had told her before – that he was sleeping when he touched her sexually – could have been true. T.M. erased any doubt M.M. had about that critical issue when he stated –
“What I was doin to u was wrong and out of anger.”
When pressed by M.M. and told about her maternal instincts driving her desire to protect her children, T.M. reiterated,
“U need not worry…I’m not as fucked up as u think I am…”
When M.M. implored T.M. to take precautions – ensure their daughter is put into her own bed because M.M. was afraid he would be sleeping – not realize – and it might not be his fault, T.M. assured her,
“No, not the case…I was aware of what I was doin to u I was angry and it was wrong of me to do that to you.”
M.M. responded with:
“You acted so much like you were sleeping.”
T.M. answered:
“I know I’m sorry, it was not right.”
- Clearly, this Facebook exchange occurred before four of the five sexual assaults were committed by T.M., but his capacity for deception and his acknowledgement of the wrongfulness of his conduct are patent in what he said to M.M.
April 25, 2016:
- On April 25, 2016, M.M. texted to T.M.:
“I still don’t like how you lick me when I’m asleep and then try to pretend you’re sleeping fyi”
T.M. answered:
“I know I’m sorry my sex drive is retarded”
- Again, there is an acknowledgment of the ruse played out by T.M., and an attempt at explaining his conduct.
May 5, 2016:
- On this date, M.M. expressed to T.M. how she is at her wits’ end in dealing with T.M.’s unwanted sexual advances at night. She states:
“How can I love someone who violates me every single night. One that is not a good feeling. Two I need my fucking sleep. I’m resentful towards you because you’re the reason I’m grumpy in the morning.”
T.M.’s response was:
“I understand but you fail to understand how I feel. You give yourself away sexually with ease to other men but not me and it upsets me and makes me insecure as fuck. Let’s sleep apart until you can start being more affectionate and appreciative of me. I need you to make me feel wanted and desired. Right now, I feel as if you don’t give a fuck in my eyes. You have given up and don’t care to try and step it up on your end. That makes me angry and resentful and results in me being disrespectful towards you. I’m sorry but you need to try harder to make me feel special again.”
- T.M.’s use of the words, “…results in me being disrespectful to you” can mean only one thing. M.M. had just accused him of “violating her every single night.” His disrespect equates most certainly to an acceptance of responsibility for the nightly violations. However, he again looks to excuse his behaviour. He wants M.M. to step it up and try harder. The cure in T.M.’s opinion to his problem is simple. M.M. needs to have more frequent sex with him.
November 16, 2015:
- If there can be any doubt as to T.M.’s belief in the solution to his problem, one need only look to what he wrote on November 16, 2015 at or near the beginning of the trial separation M.M. and he embarked upon:
“You know when we started dating I told you how I like it every day. I don’t understand how you think just shutting me out all the time is going to help the situation. You don’t get it. I’m horny all the time. If this is going to get better, I have to get some much needed attention. I feel neglected like fuck we haven’t for over a month. How can you expect that I don’t want to do it with you? Come on I’m a horny person. Why can’t you accept that like you used to and give me some attention that I’m seeking. This is the most insane fucking shit. All I need is for you to fuck me like you did when we met. That’s the solution to all this bullshit. You keep me happy in bed all these problems go away. I don’t know how you can’t see this. I have needs too.”
Issue 11: Do I believe T.M.’s account that he did not assault M.M.?
Issue 11: Do I believe T.M.’s account that he did not assault M.M.?
A few days following M.M.’s attendance at the stag party, she was in the bathroom of the home she shared with T.M. Tension between them was still high. He admitted to having a cigarette with Jessica, a friend of his in whom M.M. suspected T.M. had a romantic interest. M.M. mentioned the hypocrisy of his anger at her attending a party where Jeff might be, while T.M. saw no problem in socializing with Jessica.
M.M. testified that T.M. spontaneously punched her four times in quick succession in the vaginal area. She slapped him in the face and pushed him out of the bathroom. He slammed the door upon leaving the bathroom. In so doing, the mirror hanging on the inside of the door became dislodged, fell and broke.
T.M. denied striking M.M. in the vaginal area. He admitted to circling M.M.’s vagina with his hand while taunting her about how she enjoys having Jeff’s cock inside her. M.M. slapped him in the face in response.
T.M. agreed he left the bathroom and following his exit, with the door closed, he punched it three times. The mirror fell and broke as a result.
In assessing T.M.’s account, I cannot reject it. It sounds reasonable. T.M. did not attempt to cast himself in an all too favourable light. Indeed, the behaviour he described was quite vulgar and boorish, but it was not assaultive. His evidence indeed sounded and likely is quite truthful in recounting this event, as I weigh it against the backdrop of M.M.’s. Accordingly, I shall find T.M. not guilty of the assault upon M.M.
Issue 12: If I do not believe T.M.’s evidence, does it raise a reasonable doubt as to whether he assaulted M.M.?
Issue 12: If I do not believe T.M.’s evidence, does it raise a reasonable doubt as to whether he assaulted M.M.?
- Having believed T.M.’s account, it suffices to say it exceeds simply raising a reasonable doubt in my mind. I find his evidence credible regarding what happened in the bathroom between March 1 and May 25, 2016.
Issue 13: On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in T.M.’s guilt that he assaulted M.M.?
Issue 13: On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in T.M.’s guilt that he assaulted M.M.?
- I am not.
Issue 14: Has the Crown proven beyond a reasonable doubt that T.M. committed the offence of mischief to a dwelling house?
Issue 14: Has the Crown proven beyond a reasonable doubt that T.M. committed the offence of mischief to a dwelling house?
I have no doubt T.M. caused damage to the mirror. He was angry and reckless in doing so. However, I accept his evidence that he is the only person on title as the owner of the home in question. M.M. conceded in her evidence that the mirror on the bathroom door was there when T.M. and she moved in.
I have no other evidence before me which the Crown can point to in order to make out the offence of mischief. Consequently, T.M. will be found not guilty.
Conclusion:
Conclusion
So much of the evidence I relied upon in convicting T.M. for the majority of his charges was generated by him. His texts were damning. They constituted admissions of guilt. I carefully analyzed the plain and ordinary meaning of the words he used in countless messages sent to M.M. mainly, but to K.F. as well.4 I do not for a second believe that T.M. was prepared to say or do whatever in order to appease M.M., and win her back. He was not putty in her hands. He did not simply give in to what he believed she wanted him to say merely because he believed it is what she wanted to hear.
T.M. knew that when the relationship was finally over, M.M. had compelling evidence against him. He set off on a path to find a justification for his uncontrollable sexual urges. Indeed, at times, and in spite of the valiant and able efforts of his defence counsel, I often felt I was witnessing attempt after attempt of driving a square peg through a round hole. It just will not work – ever.
T.M. is guilty of the following:
a) Counts 1 to 5 for having committed sexual assaults upon M.M. contrary to s. 271 of the Code;
b) Count 9 for having committed a sexual assault upon K.P. contrary to s. 271 of the Code;
c) Count 10 for having committed a sexual assault on K.F. contrary to s. 271 of the Code;
d) Count 11 for having committed a sexual assault on N.P. contrary to s. 271 of the Code;
e) Count 12 for having committed a sexual assault on S.P. contrary to s. 271 of the Code.
- He is not guilty of the following:
a) Count 6 for allegedly assaulting M.M. contrary to s. 266 of the Code;
b) Count 7 for allegedly committing mischief to the dwelling house of M.M. contrary to s. 430(4) of the Code; and
c) Count 8 for allegedly confining M.M. without lawful authority contrary to s. 279(2) of the Code.
- I shall hear from Crown and defence counsel on next steps toward sentencing.
DATED: January 29, 2019
The Honourable Mr. Justice M. March
Endnotes:
1 1. SBC Intake documents 2. Referral package, dated April 4, 2017 a. Letter from Joshua Clarke, dated April 4, 2017; April 6, 2017 b. Letter from Joshua A. Clarke, dated May 16, 2017 c. Email correspondences between Mr. Clarke, Dr. Fedoroff, and Eleanor Riley (May 16, 2017 to May 17, 2017) d. Occurrences e. Information f. Recognizance of Bail dated September 15, 2016 g. Promise to Appear dated July 18, 2016 h. General Occurrence Report dated May 24, 2016 i. Case file synopsis dated July 18, 2016; July 19, 2016; May 26, 2016 j. Interview Report dated June 10, 2016 k. Witness Statement of N.P. dated May 24, 2016 l. Notebook Disclosure, dated May 25, 2016, to June 1, 2016 m. Witness Statement of K.P. dated May 24, 2016 n. Witness Statement of S.P. dated July 5, 2016 o. Audio & Video Interview Caution dated July 5,