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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Reidel, 2021 ONCJ 365

DATE: 2021 06 30

COURT FILE No.: Region of Waterloo (Kitchener)

Information No. 20-349-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MICHAEL REIDEL

Before Justice C.A. PARRY

Heard on April 13 and 14, 2021

Reasons for Judgment released on June 30, 2021

Wood, K counsel for the Crown

Brock, T counsel for the defendant Michael Reidel

PARRY J.:

I. INTRODUCTION

[1]

Introduction

Michael Reidel stands charged with sexually assaulting C.D. on the evening of December 27/28 of 2019.

2Mr. Reidel acknowledges that he intentionally engaged in sexual intercourse with C.D. that evening. However, he contends that C.D. consented to engaging in sexual intercourse with him and communicated that consent to him, causing him to honestly believe that she had consented to engaging in sexual intercourse.

3The court must therefore determine whether the Crown has proven beyond a reasonable doubt the absence of C.D.’s consent. The court must also determine whether there exists an air of reality to Mr. Reidel’s claim that he believed C.D. was consenting, having regard to the statutory criteria that govern the availability of this defence. If there exists an air of reality to this defence, the Court must consider whether the Crown has disproven it beyond a reasonable doubt.

4For the reasons that follow, I conclude beyond a reasonable doubt that C.D. did not consent to sexual intercourse with Mr. Reidel. I also conclude beyond a reasonable doubt that Mr. Reidel did not believe C.D. consented to having sexual intercourse with him.

II. THE EVIDENCE FOR THE CROWN

[5]

The Evidence for the Crown

The Crown called two witnesses, C.D. and her fiancé, J.G. The Crown also relied upon Mr. Reidel’s admissions that he had intercourse with C.D. and that his semen was found on a tissue used by C.D. to wipe her vaginal area after the intercourse. To that end, Mr. Reidel acknowledged that forensic analysis of the tissue revealed the presence of his DNA, DNA which came from cells found in his semen. The Crown also relied upon phone messages left by Mr. Reidel on C.D.’s voice mail. Photographs of C.D.’s phone, coupled with the admitted evidence of the investigating officer, revealed that Mr. Reidel had left messages for C.D. at 11:52 a.m. and 2:37 p.m. on December 28, 2019.

6Mr. Reidel lived with C.D. and J.G. He rented from them. His rent garnered him the use of a bed in the basement recreation room of the house. He also had access to common areas in the house.

7The house is a back-split. It has four levels, including the basement. The basement level contained the recreation room, which contained some couches, a television, and Mr. Reidel’s bed. The alleged sexual assault occurred on Mr. Reidel’s bed. The next level above the basement contained the family room. The next level up contained the kitchen and living room. Stairs lead from the kitchen to the top level, which contained the bedroom shared by C.D. and J.G.

8C.D. and Mr. Reidel met in the fall of 2016 at a pool hall. C.D. acknowledged that they dated for a time, though the duration of that dating remains unclear. Whatever the duration of their dating relationship, C.D. purportedly continued to remain friends with Mr. Reidel, right up until the night of the alleged sexual assault. She shared an apartment with Mr. Reidel for a time, before the two went their separate ways. Mr. Reidel moved in with a friend and C.D. moved back in with J.G. At some later point, Mr. Reidel moved in with C.D. and J.G. All three of them then moved to another residence in September or October of 2019. This final residence is the residence they all occupied on the evening of December 27/28 of 2019. Despite C.D.’s acknowledgement that she dated Mr. Reidel previously, J.G. testified that he did not believe the two had ever dated.

9C.D. and J.G. owned three dogs and two cats. J.G. was not overly fond of the dogs. When he was home, C.D. typically put the dogs in the basement room where Mr. Reidel slept.

10On the evening of December 27, 2019, J.G. hosted a Christmas gathering for his family. He and C.D. asked Mr. Reidel to depart for the evening, so that the couple could spend some time alone with J.G.’S family. Mr. Reidel complied.

11C.D. and J.G. both testified that Mr. Reidel came home near the end of the gathering. C.D. testified that the last guest departed between 10:30 and 11 p.m. J.G. provided similar evidence, estimating that the last guest departed at about 11:30 p.m. According to C.D., Mr. Reidel briefly socialized with those gathered upstairs before retiring to the basement for the evening. J.G. testified that Mr. Reidel socialized with him and C.D. briefly following the departure of the last guest.

12Throughout the evening, C.D. consumed about six glasses of wine and one shot. She testified that Mr. Reidel provided her with the shot. She also testified that she consumed her last drink at about 11 p.m.

13J.G. testified that after socializing briefly with C.D. and Mr. Reidel, he went upstairs to sleep. According to J.G., Mr. Reidel retired to the basement at around the same time. He also testified that C.D. went to the basement to say goodnight to the dogs, which was her common practice. C.D. believed that J.G. remained in the family room when she departed to the basement. C.D. estimated that she departed for the basement at about 11:30 p.m. J.G.’S evidence suggests that C.D.’s departure to the basement occurred somewhat later, but he did not testify with precision on this point.

14According to C.D., she remained in the basement for about 1 ½ hours. On her evidence, she sat on Mr. Reidel’s bed, cuddled with her dogs, and engaged in conversation with Mr. Reidel. She testified that Mr. Reidel sat on the couch as they spoke. She disagreed that the two of them watched television together that evening, though it was not uncommon for her to watch television while cuddling her dogs.

15According to C.D., near the end of her time in the basement, Mr. Reidel got up from the couch and came over to the bed. She testified that Mr. Reidel pushed her down on the bed and started to touch her. She told him to stop, but he persisted. He touched her “boob”, her arms, and her stomach. He also attempted to remove her top. C.D. further testified that Mr. Reidel pulled her pants down three times. Each time, she pulled them up, said no, and asked him what he was doing. Ultimately, he was able to pull her pants down and engage in sexual intercourse with her. As this was occurring, she repeatedly told him, “No”, asked him “What are you doing?” and attempted to push him off. She testified that she eventually managed to push him and kick him off of her. She then immediately ran upstairs in search of J.G., whom she believed was still in the family room.

16C.D. found J.G. in bed, asleep. She declared that Mr. Reidel had raped her and told J.G. to eject Mr. Reidel from the house. The Crown relies upon these utterances as res gestae statements, to prove the truth of their contents and to prove C.D.’s emotional state. The defence conceded their admissibility for that purpose. C.D. also testified that Mr. Reidel had followed her up from the basement but did not pursue her past the foot of the stairs that leads from the kitchen to the bedroom level.

17J.G. confirmed that C.D. woke him in bed and declared that she had been raped by Mr. Reidel. He believed he had been in bed and asleep for about 20 minutes before she woke him, though he provided no reliable benchmarks for this hazy estimation. In any event, J.G. testified that C.D. was yelling, screaming, and crying. She was visibly upset. He further testified that Mr. Reidel had followed her upstairs. From the foot of the kitchen stairs, Mr. Reidel asked questions such as, “Why are you upset? Why are you all upset?” and “Are you okay? What happened?” J.G. got the impression that Mr. Reidel was attempting to portray himself as being unaware of what had just transpired. Meanwhile, C.D. persisted in her accusations. She went to the washroom across the hallway and she wiped her vaginal area with tissue, then showed the moistened tissue to J.G. and said, “Look, he just raped me.”

18C.D. was uncertain as to whether Mr. Reidel had ejaculated. However, she testified that she wiped her vagina to show J.G. the presence of semen and to convince J.G. that Mr. Reidel had engaged in intercourse with her. Thus, it would appear that despite some uncertainty at the time of trial, she possessed a subjective belief at the time of the incident that Mr. Reidel had ejaculated. According to J.G., he suggested putting the tissue in a ziplock baggie to preserve it as evidence. As it happens, they had left a box of ziplock baggies in their bedroom to bag items for an upcoming vacation. C.D. was less clear-headed about the thoughts and motivations behind the preservation of the tissue, but she nevertheless recalled placing the tissue in the baggie.

19According to J.G., C.D. remained extremely upset. She continued to yell and cry. J.G. also had to hold her back from trying to kick Mr. Reidel down the stairs. Consequently, J.G. ejected Mr. Reidel.

20During the commotion, either C.D. or J.G. placed a 911 call at around 1:09 a.m. The Crown tendered a recording of that call as evidence in the trial. The Crown relied upon the recorded utterances as res gestae statements to prove C.D.’s degree of emotional upset towards Mr. Reidel and to prove C.D.’s desire to have Mr. Reidel ejected. The defence again conceded the admissibility of these utterances for those purposes. In that call, C.D. can be heard yelling and screaming at Mr. Reidel. She can only be described as apoplectic. At times her words are unintelligible. At other times, she can be heard screaming words and phrases such as, “Get the fuck out… Get out…. Get out… get out…. Get out… you fucking….” At some juncture during the course of the ejection, she also told Mr. Reidel that the police were coming.

21According to both J.G. and C.D., Mr. Reidel departed the home via the garage, never to return.

22C.D. provided evidence that Mr. Reidel called her shortly after the incident. The evidence of photographs of her call logs, coupled with the evidence of Detective Shipp establish that Mr. Reidel called C.D. about 10 hours following his departure. The call was placed from a payphone at 11:52 a.m. on December 28^th. He placed a second call at 2:37 p.m. C.D. did not answer either call, so Mr. Reidel left messages.

23In his message left at 11:52 a.m., Mr. Reidel told C.D. that he was just calling to say that he apologized. In the message left at 2:37 p.m., Mr. Reidel said, “Hi it’s me. Just calling to see how you are. I want to talk to you in person. I guess I will just have to keep trying.” Other than the alleged sexual assault, C.D. could not conceive of any other transgression for which Mr. Reidel might offer an apology.

24In cross-examination, defence counsel suggested to C.D. that she twice visited Mr. Reidel in Listowel following the alleged sexual assault. She denied this suggestion. She also denied calling Mr. Reidel in December of 2020 to advise him that she was pregnant. She acknowledged that at some point in 2020, Mr. Reidel called her twice about retrieving his belongings. She answered the phone the on the first occasion and on the second occasion, she returned his call. According to her, the only subject she and Mr. Reidel discussed was the need for him to come with a police officer to retrieve his belongings.

III. THE EVIDENCE FOR THE DEFENCE

[25]

The Evidence for the Defence

Mr. Reidel testified in his own defence.

26He testified that he and C.D. had previously been romantically involved. He further testified that she often expressed ambivalence about her relationship with J.G. and repeatedly expressed a desire to move out and re-unite with Mr. Reidel. According to Mr. Reidel, C.D. could not make her mind up between a having a relationship with him and with J.G.

27Mr. Reidel further testified that on the evening of the alleged offence, C.D. was the sexual aggressor, not him. According to Mr. Reidel, C.D. joined him in the basement about 25 minutes after he had gone downstairs to watch television. She sat on the bed with her dogs and he sat on the couch. He testified that they chatted and watched television together. She wanted to have a Christmas drink with him, so he poured two shots. She then proceeded to drink both her own and his shot. He also testified that after they had talked a while, he wanted to go to sleep. He got up from the couch and told her that it was time for her to go to bed. Though she declined to leave, he crawled into bed and covered up. According to Mr. Reidel, C.D. was then all over him. She insisted on a kiss and initiated kissing. The two then mutually kissed. Then she started to rub his genitals and he rubbed her breasts in response. She then moved to the edge of the bed and told Mr. Reidel that she wanted him to make love to her. He explained that he has erectile dysfunction and finds it easier to have intercourse while standing. According to Mr. Reidel, she positioned herself in a manner that enabled him to engage in intercourse from a standing position. Mr. Reidel also testified that he then twice asked C.D., “Are you sure?”, to which C.D. replied in the affirmative. He asked her, he said, because she was engaged to J.G. They then engaged in sexual intercourse.

28While Mr. Reidel portrayed himself as slightly cautious about the sexual encounter, he did not, during his testimony in-chief, suggest he ever attempted to rebuff the encounter. He acknowledged in cross-examination, though, that he had told the police in his post-arrest interview, that he had told C.D., “No”. Mr. Reidel tried unsuccessfully to explain the discrepancy by testifying, “That’s why I asked her, ‘Are you sure?’” In his statement to police, though, he informed the police that he told C.D., “You know what. No.” right at the outset of her advances, which is a far cry from pausing to confirm she is sure about the infidelity she is about to engage in.

29According to Mr. Reidel, once they finished intercourse, C.D. informed him that she was going to go upstairs to get some water. She then departed. On his evidence, he then went back to the couch to watch some television, a decision which seems to run counter to his previously expressed intention to go to sleep.

30On Mr. Reidel’s account, he heard a bump and some crying and screaming about five minutes after moving back to the couch. Accordingly, he went upstairs to investigate.

31Mr. Reidel effectively confirmed that C.D. was extremely upset. He stood at the base of the kitchen stairs as she described. He saw her departing the bedroom as she described. He also confirmed that J.G. then ejected him from the house as he described. He also confirmed that as he was putting on his shoes in the garage, he could hear C.D. yelling at him to “get the fuck out.” At some juncture during her tirade, he also heard her say that she was calling the police.

32Despite his claim that C.D. had initiated and insisted upon the sexual encounter, and despite lacking anywhere to go or any means of easily getting there, Mr. Reidel complied without complaint or objection to his unceremonious ejection from the household in the middle of the night by C.D. and her alleged cuckold. He also purportedly possessed an astonishing lack of curiosity as to why C.D. would be calling the police at one in the morning. On his evidence, he did not realize he was being accused of rape. He implicitly suggested he did not draw any connection between his ejection and C.D.’s stated intention to call the police.

33According to Mr. Reidel, he walked from his Waterloo address to the Bridges Shelter in Cambridge, a distance of about 25 km. Upon discovering the shelter was closed, he called a friend and stayed with the friend. He subsequently moved in with another friend, T.C., on January 5, 2020. T.C. resided in Listowel.

34About 10 hours after having been forced to walk about 25 km through the night to a Cambridge shelter, Mr. Reidel placed a call to C.D. and left her a message. He explained that he apologized to her because she was engaged and he felt bad for having sex with her. He testified that he called her a second time and left a second message because he was worried about her and wanted to check up on her.

35Mr. Reidel purported to be unaware that the police were looking for him as he took up residency with T.C. in Listowel. He was arrested by police on January 17, 2020. After learning of his arrest, he told police, “This is all news to me.” On his evidence, he was unaware that C.D. had accused him of sexual assault until he was arrested.

36Mr. Reidel further testified that C.D. paid him a visit at his home in Listowel several days after his arrest. According to Mr. Reidel, C.D. had only recently returned from her week-long vacation with J.G. in Mexico. During that visit, Mr. Reidel sat with C.D. in her Jeep for about an hour. During that time, he asked her, “Why did you cry rape?” According to Mr. Reidel, he never received an answer.

37Mr. Reidel also testified that C.D. paid him a visit in Listowel on his 50^th birthday in March of 2020. She told him that she wished him a happy birthday and that she still wanted to be friends. According to Mr. Reidel, he never saw her again after that day.

38Although he did not see her again, Mr. Reidel testified that C.D. called him in December of 2020 to advise him that she was pregnant.

IV. ANALYSIS

[39]

Analysis

Mr. Reidel comes to this trial presumed innocent. He enjoys the benefit of that presumption throughout the trial. The Crown therefore bears the burden of proving Mr. Reidel’s guilt. To meet that burden it must meet the standard of proving the essential elements of the offence beyond a reasonable doubt. The Crown’s burden never shifts, nor does the standard of proof it must meet. In determining whether the Crown has met its burden, I must consider the entirety of the evidence. I remind myself that the standard of proof, “proof beyond a reasonable doubt”, falls much closer to a standard of absolute certainty than it does to a standard of proof on a balance of probabilities.

40Mr. Reidel has provided exculpatory evidence. Therefore, the burden and standard of proof in a criminal trial require that I acquit Mr. Reidel if, having considered the entirety of the evidence, I accept his exculpatory evidence pertaining to any essential element of the offence. Similarly, the burden and standard of proof in a criminal trial require that I acquit Mr. Reidel even if I do not entirely believe his exculpatory evidence but his evidence leaves me with a reasonable doubt. If it does, Mr. Reidel is entitled to an acquittal. Even if I entirely reject Mr. Reidel’s exculpatory evidence, I must take stock of the evidence I do accept and assess whether this evidence has established Mr. Reidel’s guilt beyond a reasonable doubt. If it does not do so, then the Crown has failed to meet its burden, and Mr. Reidel is entitled to an acquittal. Conversely, if the evidence I do accept establishes beyond a reasonable doubt that Mr. Reidel committed the essential elements of the offence, then I must convict. Approaching the analysis in the manner just described avoids treating the trial as a contest in which the court must pick a winner between two competing adversaries. The approach recognizes that uncertainty about the truth is a perfectly acceptable and just outcome in a criminal trial.

41Having outlined the burden and standard of proof that govern my assessment of the evidence and deliberations, I turn to an assessment of the evidence to explain why I reject Mr. Reidel’s exculpatory evidence and accept C.D.’s allegations against him beyond a reasonable doubt.

42I begin with an examination of the events following the incident.

43When considered in the context of the entirety of the evidence, C.D.’s immediate post-incident words, conduct, and demeanour, in my view, play a critical role in my ultimate findings. Mr. Reidel’s post incident conduct also proves crucial.

44C.D.’s words, conduct, and demeanour are admissible for the purpose of establishing her state of mind and emotional state in the aftermath of the incident: R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.); R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516. Those words, conduct, and demeanour can also be relied upon in assessing C.D.’s credibility: R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177.

45According to Mr. Reidel, C.D. calmly left the basement after their sexual encounter to get a drink of water. On his evidence, she did not become hysterical for about five minutes after her departure. Having considered the evidence of C.D., J.G., and the audio-recording of the 911 call, I reject this particular piece of evidence. Instead, I conclude on a balance of probabilities, at the very least, that C.D. woke J.G. in a highly distraught state and made allegations of rape immediately after she fled from the basement. In doing so, I would note that Mr. Reidel’s narrative implies that as C.D. delayed five minutes, she perhaps quietly reflected upon her infidelity before erupting into a contrived fit of tearful recrimination. I find it highly unlikely that five minutes of tranquility would have transpired before she erupted into fits of anguish and fury and repeatedly alleged that Mr. Reidel raped her. C.D. testified that she immediately fled the basement after escaping the sexual assault and woke J.G. and disclosed the rape while in a state of extreme duress. J.G. confirmed C.D.’s account of what transpired after she woke him. The 911 recording further corroborated the assertion that C.D. was in a state of extreme anguish around the time she woke J.G. Even Mr. Reidel confirmed C.D.’s apparent emotional state around the time of the 911 call. I find it far more likely that C.D. erupted into her fits of rage, fury, and recrimination immediately after the sexual incident, rather than five minutes later.

46I also conclude that, because C.D.’s post-incident words, conduct, and demeanour occurred so closely after the sexual incident, that the allegations of rape she made to J.G. in the aftermath of the incident may be used for the truth of their contents and to support her in-court testimony. In doing so, I rely upon the res gestae doctrine. That doctrine admits hearsay utterances offered for their truth in two situations: (1) declarations involving the relevant act; and (2) spontaneous explanations: R v. Sheri, 2004 CanLII 8529 (ON CA), [2004] OJ No 1851(C.A.). In my view, C.D.’s declarations satisfy both branches of the test. Under the first branch of the test, the words must be so inter-related to a fact in issue that they become a part of the fact itself. To qualify, the words must introduce the fact in issue, explain its nature, or form in connection with it in one continuous transaction. With the case at hand, C.D. fled from Mr. Reidel, woke J.G., and immediately announced she had been raped. In my view, her declaration introduced the fact in issue, explained its nature, and was inextricably intertwined in time and place to the incident in question. Furthermore, I conclude that her utterance arose from a startling occurrence or event: the sexual encounter that immediately preceded C.D.’s declarations. Therefore, I conclude that C.D.’s declarations of rape to J.G. are admissible for the truth of their contents. I should note that Mr. Brock conceded this issue when the utterances were first tendered by the Crown. He was correct to do so.

47I turn now to Mr. Reidel’s account of what transpired immediately after the sexual encounter. In my view, his account raises concerns about his credibility.

48First, I would note that Mr. Reidel contends that he went to watch television immediately after the sexual encounter. One must keep in mind that, according to his narrative, he ended up in bed with C.D. because he was tired and wanted to sleep. Indeed, he claims to have told C.D. he wanted to sleep and then got under the covers and rolled over. Yet after the relatively brief sexual encounter, he purports to have recovered from his supposed exhaustion and decided to watch more television. This incongruity causes me to distrust his initial claim that he entered the bed for the purpose of going to sleep.

49I also find Mr. Reidel’s account of his departure from the home troubling. On his evidence, he has engaged in a consensual act of infidelity with C.D. On his evidence, C.D. then immediately declared that she wanted him ejected him from the home in the middle of the night and declared that she was calling the police. He had nowhere to go and no money to get there, so he walked twenty-five kilometers to a Cambridge homeless shelter. On his evidence, C.D. perpetrated an extreme injustice upon him. And yet, he purportedly complied with the perpetration of this injustice without a word of complaint – and without a hint of curiosity as to why C.D. might invoke the assistance of the police to eject him. And to top it off, he called several hours later to offer an apology to the perpetrator of the supposed injustice. Mr. Reidel nevertheless asserts that he did not realize C.D. had made rape allegations until the police arrested him in January. In my view, Mr. Reidel’s evidence on this subject is simply not credible. Recall that Mr. Reidel testified that he was standing at the foot of the kitchen stairs as J.G. was in the hallway above contending with C.D. I appreciate that J.G. did not notice Mr. Reidel at the base of the stairs for an estimated five minutes after being awoken by C.D. However, J.G. also testified that he observed C.D. repeatedly yelling, “he raped me” at around the time J.G. also observed Mr. Reidel trying to follow C.D. up the stairs. According to J.G., C.D. was so upset that she wanted to kick Mr. Reidel down the stairs. J.G. had to hold her back. C.D. confirms making vociferous rape allegations. Given all of this evidence, I find as a fact that Mr. Reidel was at the base of the stairs leading up from the kitchen during the time-frame that C.D. repeatedly and loudly alleged that Mr. Reidel raped her. I also find as a fact that moments later both C.D. and J.G. came down to the kitchen for the purpose of ejecting Mr. Reidel and calling 911. I therefore find as a fact that Mr. Reidel knew he was the subject of rape allegations and knew that his ejection sprang from those rape allegations, and I reject his contentions to the contrary. I appreciate that, in the face of rape allegations, his continued presence was untenable, but after a briefly adopting an affectation of puzzled ignorance, he remained silent in the face of a horrific allegation. And then he meekly complied with an ejection that sprang from that horrific allegation. The circumstances begged for a protestation of innocence. An admission may be implied from a accused’s silence in the face of allegations made by others in circumstances where the accused could reasonably be expected to respond: R. v. Beauchamp, 2015 ONCA 260. I appreciate that courts should be cautious in drawing such inferences, because not everyone will react to a false allegation in the same manner: R. v. Stark (2004), 2004 CanLII 39012 (ON CA), 190 C.C.C. (3d) 496. However, on Mr. Reidel’s version of events, he was the subject of an abominable injustice, yet his own behaviour discloses no suggestion that he perceived the situation in that way on the night of his ejection. Instead, his silence and meek departure discloses an acceptance of the appropriateness of his ejection and the corresponding police complaint. Consequently, I infer that Mr. Reidel’s silence coupled with his unquestioning compliance with his ejection amounts to a tacit acknowledgment of the veracity of the very allegation that precipitated his ejection. His response to the explicit rape allegations, ejection, and 911 call constituted an admission by conduct, notwithstanding his fleeting protestations of puzzlement and ostensible concern. In my view, there exits no other reasonable inference from his conduct, particularly when considered in light of the apology he made 10 ½ hours later, which I will now discuss.

50Mr. Reidel’s phone message to C.D. about 10-½ hours after the incident and his subsequent ejection also severely undermines his credibility. In that message, Mr. Reidel apologized to C.D. Mr. Reidel explained that he was apologizing for his part in her infidelity. His evidence on this point lacks any credibility. Again, it must be kept in mind that, on his evidence, she initiated the sexual encounter. Then soon thereafter, she unceremoniously ejected him from the only place he called home. It was in the middle of the night in the winter. He had to walk many miles to a shelter. And to make matters worse, she had announced she was calling the police. On his evidence, she treated him abominably. And yet he called her to apologize for succumbing to her advances? Nonsense. I reject that contention entirely. His apology to her was an admission of guilt. It supports C.D.’s contention that he engaged in sexual intercourse with her without her consent.

51In addition to the post-incident words and conduct of C.D. and Mr. Reidel, two aspects of Mr. Reidel’s evidence cause me concern about his credibility. The first area of concern is his claim that he did not know on the night of his ejection that he was the subject of rape allegations. I have already considered and rejected this claim when considering Mr. Reidel’s post incident-conduct and need not discuss that claim again. Needless to say, his claim of ignorance did little to enhance my estimation of his testimonial credibility. The other area of concern involves what I believe to be a contradiction between his testimonial narrative and the narrative he earlier provided to the police. The overriding thesis of Mr. Reidel’s testimonial evidence was that C.D. initiated the sexual encounter and he acquiesced to her advances but paused to confirm that she was sure she wanted to commit the infidelity. At no point in his evidence in-chief did Mr. Reidel ever suggest he attempted by words or gesture to rebuff her advances. However, in Mr. Reidel’s prior statement to the police, he informed the police that he initially responded to the advances by saying, “You know what, no.” Mr. Reidel attempted to explain to the court that he conveyed the essence of that prior claim when he testified about asking C.D. if she was “sure.” His explanation lacked credibility. According to his testimony, his “are you sure?” question arose after he had already begun reciprocating the advances. It was a question posed mid-infidelity to confirm she wanted to go through with what they had already begun. He put a very different spin on the encounter in his police narrative than he did on his account to the court. I therefore consider his testimonial omission of his alleged refusal to constitute a contradiction, one which hurts his credibility.

52Mr. Brock submits that C.D.’s evidence should cause me concern about her credibility. He points to C.D.’s alleged post-incident contact with Mr. Reidel. He also submits that C.D.’s ejection of Mr. Reidel was inconsistent with her allegation of rape. He further argues that C.D.’s decision to wipe herself with a tissue was inconsistent with her allegation of rape. Finally, he submits that the conduct of a consensual infidelity gave her a motive to fabricate an allegation of rape against Mr. Reidel. With respect, I find none of these submissions persuasive. I will address each one below.

53Mr. Reidel places great weight upon his claim that C.D. visited him twice and called him once after the incident. C.D., for her part denies the visits or the phone call. Mr. Reidel describes the first visit as occurring in January, within days of his arrest. Curiously, the entirety of that hour and half visit allegedly occurred inside C.D.’s vehicle. His narrative of this encounter does not explain how he came to know that she had arrived at the residence or why either of them deemed it necessary for the visit to occur inside her car instead of inside of his residence. According to him, he asked her why she had “cried rape”, to which he never really received a response. One would have thought that the supposed false rape allegation might have consumed the majority of the conversation, but Mr. Reidel was only able to provide this small snippet of detail. Indeed, his entire description of this encounter was vague on details. Moreover, he never suggested that she ever acknowledged his allegation of fabrication. While I cannot discount entirely that this meeting or the subsequent one occurred, I am inclined to accept on a balance of probabilities that it did not. I remind myself here that I need not find each and every material fact to have occurred beyond a reasonable doubt. The criminal standard of proof does not apply to individual items or categories of evidence, but only to the final evaluation of guilt or innocence on the essential elements of the offence: R. v. Menard (1998), 1998 CanLII 790 (SCC), 125 C.C.C. (3d) 416. Having considered the evidence regarding the alleged visits by C.D., I accept on a balance of probabilities C.D.’s assertion that the meetings did not occur. Furthermore, I would observe that, even if I were to accept that the meetings did occur, I do not find that the meetings have any probative force. The fact that C.D. met with Mr. Reidel following a sexual encounter does not, in and of itself, establish that she consented to the prior sexual encounter. These two people knew each other for several years. They had dated. They had a history. The notion that C.D. may have felt the need to subsequently see Mr. Reidel after the incident does not assist me in determining whether or not C.D. consented to sexual activity with Mr. Reidel.

54Turning to Mr. Brock’s submission about C.D.’s ejection of Mr. Reidel, I find no contradiction between C.D.’s ejection of Mr. Reidel and her desire to make a police complaint. While I can certainly understand that some people might want to keep their assailant detained pending police arrival, I can also certainly conceive of some victims wanting their rapist out of their home and out of sight. C.D. testified that she wanted Mr. Reidel out of the house because he had just sexually assaulted her and she was upset. This response is entirely logical and does not undermine her credibility.

55I must confess, I am not entirely sure I understood Mr. Brock’s submission about the tissue. At one point, he asked the rhetorical question, “If she was in fact raped, why does she feel it necessary to provide evidence?” If that logic prevailed, rape-kits would become a thing of the past. To be fair, I think Mr. Brock was also attempting to suggest that her decision to wipe herself appears inconsistent with her testimonial uncertainty about whether Mr. Reidel had even ejaculated. Having said that, C.D. was distraught and emotional, and at one point testified to being unable to think clearly in the aftermath of the incident. Also, by wiping herself, she appears to have demonstrated a contemporaneous belief in at least the possibility of ejaculation. Her testimonial uncertainty cannot be equated with a contemporaneous discounting of the possibility of ejaculation. I therefore see nothing in her decision to wipe herself that is capable of undermining her credibility. Indeed, this piece of evidence logically fits and flows with C.D.’s narrative of the events.

56Mr. Brock contends that C.D. had a motive to fabricate, namely, her act of infidelity. I do not find merit in this submission. On the evidence before me, J.G. was entirely unaware of the sexual encounter until being awoken by C.D. There is no evidentiary basis for a conclusion that C.D. had any reason to believe J.G. would have ever found out about the incident, but for her disclosure. The allegation of rape served only to shed light on the encounter for which Mr. Brock submits C.D. sought to avoid responsibility. Absent a reliance upon long discarded rape myths, there is no evidentiary basis to conclude C.D. had a motive to fabricate.

57Having considered Mr. Reidel’s evidence within the context of the entire case, and having paid specific attention to C.D.’s evidence, J.G.’s evidence, C.D.’s res gestae utterances, C.D.’s immediate post-incident emotional state and behaviours, Mr. Reidel’s silence and compliant departure from the scene, Mr. Reidel’s rather prompt, recorded apology, and the highlighted frailties in Mr. Reidel’s evidence, I reject his claim that C.D. consented to the sexual encounter. I also reject his claim that he held any belief in her consent. His evidence leaves me with no reasonable doubt on the issue of consent or on the issue of his unlawful intent.

58Having considered C.D.’s evidence within the context of the entirety of the evidence, I found her evidence to possess an inherent narrative logic, to be supported by her own res gestae utterances at the time of the incident, to be consistent with her own demeanour and conduct at the time of the incident, to be supported by Mr. Reidel’s own inculpatory apology, and to be supported by the highlighted aspects of Mr. Reidel’s post-incident conduct, including his immediate and compliant departure from the scene, and his recorded apology. I accept beyond a reasonable doubt C.D.’s evidence that Mr. Reidel forced himself upon her and that he engaged in sexual intercourse with her, despite her unequivocal verbal denials of consent and despite her physical resistance to his attack. I further accept beyond a reasonable doubt that Mr. Reidel knew that C.D. did not want to have intercourse with him and knew that she was verbally and physically resisting him as he persisted in the sexual assault.

59I therefore find Mr. Reidel guilty beyond a reasonable doubt.