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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2024 05 02 Court File No.: Pembroke 21-1020
Between:
HIS MAJESTY THE KING
— AND —
GS
Before: Justice J.R. Richardson
Heard on: November 2, 29; December 11, 19, 2023
Reasons for Judgment released on: May 2, 2024
Counsel: Lori Crewe........................................................................................... Counsel for the Crown Mark Huckabone......................................................................... Counsel for the defendant
Introduction
1GS and AH met and started their relationship when they were teenagers. They married and brought their son into the world in their mid-twenties. By the time they were 29, however, the relationship was irretrievably broken down. AH says that GS became angry and abusive towards her, and this made her want to end the relationship. GS says that AH was not faithful to him and started an affair with a mutual friend.
2In family law, much has been written about the challenge of dealing with parties who are caught in the trap of an acrimonious separation. The initial hurt and anger that is the product of the breakdown of a relationship – particularly where there are allegations of infidelity and abusive behaviour – is understandable. That said, it never ceases to amaze me how two people, who at one time professed great love for one another, who by all accounts successfully enjoyed a long-term relationship and who made the decision to bring a child into the world, can ultimately behave in such a vile way toward each other when their relationship comes to an end.
3The seeds of AH’s and GS’s troubles – which germinated into the ugly, noxious weed that this case is – was their foolhardy and stubborn decision to live separate and apart under the same roof after it was clear that the relationship was over. AH, who initiated the separation, chose not to physically leave the matrimonial home. To some extent, this is understandable as she operated a home-based business there; however, when this case arose, COVID lockdowns raged on and her ability to carry on her business there was severely limited, if not temporarily curtailed. Thus, if ever there was an easy time for her to physically leave, it was in the fall of 2020, when the circumstances of this case arose.
4GS, the wounded, jilted, angry spouse, refused to leave simply because it was his house. He reasoned that if AH wanted the relationship to end, she should be the one to physically leave the house. He also clearly felt that he had the moral high ground because of the allegations of infidelity. The Crown would later contend that GS’s intention in refusing to leave, and the way he carried on in the two months immediately following their separation, was to create an atmosphere so unpleasant that AH would ultimately feel forced to leave. To a certain extent, I agree with this contention.
5AH says that shortly before their separation, GS assaulted her in the bedroom of their son when she went to try to assist GS in comforting the boy, who was suffering a night terror. This, she says, was one of the main contributing factors to her decision to leave the relationship.
6She also says that GS sexually assaulted her on three occasions after she decided to end the relationship, and he frequently watched her while she was having showers.
7Consequently, GS is charged with the following offences:
a) sexually assaulting AH between 18 September 2020 and 6 October 2020 contrary to section 271 of the Criminal Code,
b) sexually assaulting AH on the 6th of October 2020 contrary to section 271 of the Criminal Code,
c) surreptitiously observing AH between September 18, 2020 and the 31st day of October, 2020, contrary to section 162(1) of the Criminal Code,
d) surreptitiously observing AH between September 18, 2020 and the 31st day of October, 2020, contrary to section 162(1) of the Criminal Code,
e) sexually assaulting AH between the 18th of September 2020 and the 5th of October 2020 contrary to section 271 of the Criminal Code, and
f) assaulting AH between the 1st day of July 2020 and the 31st day of August 2020 contrary to section 266 of the Criminal Code.
8GS denies these allegations. Through his counsel, he waged a full-scale attack on the credibility and reliability of AH.
9GS was originally charged with the first five counts. At the conclusion of the evidence in chief of the Crown’s first witness, AH, the Crown applied to add an additional charge of assault. Defence counsel did not oppose this, stating that he knew that the failure to add the charge in the first place was an oversight, and the defence was not taken by surprise. The charge was therefore added on consent.
10At the conclusion of the evidence, the Crown properly conceded that it could not, at law, prove the two voyeurism counts and invited me to acquit GS on those charges. Because the evidence in relation to these charges is important to the assessment of credibility and reliability in this case, despite the Crown’s withdrawal, I have discussed it at length.
The 278 Application
11Prior to trial, defence counsel brought an application to lead a police occurrence report dated January 6, 2021, in which AH allegedly told police that “there had never been a physical altercation between the two parties.” This application proceeded through both stages of the section 278 inquiry on consent.
Evidence of AH
AH – Examination-In-Chief – General Matters
12AH was born on April 23, 1991. She first met GS in 2007; they started a relationship in 2008 and married on September 17, 2016.
13AH works at home as a hair stylist. GS works as an estimator for a construction materials supplier.
14Their son L was born on February 15, 2017.
15AH testified that things in the relationship changed after L was born. There was a lot of anger and fighting about chores. She also reported the GS was a heavy drinker. She stated that when these things happened, she would run away and cry. She also alleged that he called her “stupid” and “a lot of misogynistic stuff.”
Cross-Examination of AH Re General Matters
16AH agreed that she gave a statement to the police on July 23, 2021. She agreed that she was telling the truth. She knew she had to be honest and detailed, and the police explained the consequences of being untruthful with her.
17With respect to the level of detail she provided to the police, AH stated that when she met with the police, they were focused on the main allegations before the Court. She had other allegations, which they did not get into, when she gave her statement because the police told her that she could disclose as much or as little as she wanted.
18She agreed that in the statement, she went through the allegations more than once, and she reviewed each separate incident. She agreed that she did not hold anything back. She agreed that at the end of the statement, the police gave her information about how to contact them if some new information came up. She agreed that she has not contacted them with new information.
19Defence counsel asked AH if she believed her memory of the incidents now was better than when she gave the statement. She stated that she believed her memory was “about the same”. There was some “to-ing and fro-ing” about whether she agreed with the prospect that people’s memory changes over time before she ultimately agreed that memory does change over time “for the little things.”
20She stated that she last watched her statement “months ago”, but she got a hard copy of her statement about three weeks prior to testifying. She stated that she read it thoroughly. Despite this, at one point in the proceedings, the Court recessed to allow AH to review her statements again.
21Defence counsel asked AH about the Police Occurrence Report on January 5, 2021, which was after the date of the allegations. In that report, the officer (Constable Price) noted that AH told police that GS and she never had a physical altercation in the twelve years they were married. AH disagreed that she told the police that. “I was not married for 12 years”, she said. Apart from that inaccuracy, AH explained that the January 5, 2021 call to the police occurred because GS did not return L as scheduled. AH stated that she asked GS where the child was, and he would not tell her. “I called the police to figure out where he was and they assisted me with going to get him”, she stated.
22AH agreed, however, that she did not tell the officer that there had been any sexual misconduct in the past “even though all of that had allegedly already occurred.”
23Defence counsel asked AH about the commencement of the Family Court proceedings. AH stated that she was not sure when those proceedings were commenced. She reiterated that the parties separated in 2020. She stated that GS started the Family Court process. She agreed that they both were represented by counsel in the Family Court proceedings.
24She agreed that in the Family Court documents, she did not allege sexual assault, physical assault, or voyeurism.
25She acknowledged that custody of the child was at stake.
26AH confirmed that she has a new partner, B. She stated that in the spring of 2021, B was charged with assaulting his ex-wife.
27She denied that she was ostracized by a friend group she shared with GS because she had taken up with B.
28AH testified that she told the police that she had been subjected to slander. When asked whether she agreed that this referred to her relationship with B, she stated, “I suppose”.
29AH acknowledged that B and she went to the police the same day in July 2021. She made her allegations about GS, and he made allegations against his ex-wife. They drove to the police station together.
30She agreed that after GS was charged, she made a number of complaints that he had breached his release order. She could not remember how many complaints she made.
31AH agreed that one of the things she was concerned about was a threat from GS that he would tell AH’s parents about her relationship with B.
32She confirmed that she told the police that GS was “known for drinking and driving”. When asked if she agreed that GS had never been charged for that offence, AH stated, “He’s lucky.” She denied making an anonymous complaint to police to try to get AH arrested for impaired driving.
33She agreed that she believes that GS made an anonymous complaint during COVID about her in order to get her salon shut down. “I have friends that told me he bragged about it.”, she said. She then added that she decided to shut her salon down when the health unit wanted to inspect it. She stated that she was travelling to clients’ homes during this time. Accordingly, there was no store front to be inspected. At around this time, she also moved out of the matrimonial home where her salon was located.
34AH acknowledged that she told the police that a new pair of her underwear was missing, and that she blamed GS for stealing them, even though she did not see him steal them.
35AH stated that GS’s employment was not affected by COVID. To the contrary, his workplace was “booming”.
The Night Terrors Incident and Its Aftermath – AH’s Evidence In-Chief
36AH stated that in the summer of 2020, her son had night terrors. He would cry and scream a lot in his bed. AH stated that while this was happening, neither her nor GS would get a lot of sleep.
37She reported that there was an incident sometime between the middle of July and August 2020 when GS went into the boy’s room and started pounding on the headboard. The noise from this woke AH up. She ran into the room and saw GS shaking the headboard of the boy’s bed with his right hand, and pounding the mattress with his left hand, in an apparent attempt to wake the boy to stop the night terror.
38AH reported GS was also screaming. AH stated that she gently approached GS and put her hand on his shoulder to let him know that she was there. She asked him to stop screaming because she was afraid that GS would scare the child. She said that she said, “I’m here. You need to stop screaming because you are scaring him”.
39At this point, GS started screaming at AH. He “got aggressive”, turned and pushed AH with his elbow into a dresser. As she described this in Court, AH demonstrated an elbowing motion. AH stated that GS also told her to “shut up”. She stated that he was also telling the child to “shut up”.
40She stated that his elbow contacted her torso between her chest and her belly button. She said that as a result of the contact, she hit the dresser and some water from a fish tank that was on top of the dresser splashed out of the tank. She was afraid the fish tank was going to spill. She said, “[GS] please get out.”
41She then laid down with the child until he stopped crying, calmed down and was able to fall asleep. She wiped up the spilled water with a bath towel that was already in the room. She said that there was not a lot of water there.
42At some point during the altercation, AH got a small scratch or red mark on her tricep and bicep area of her right arm. The scratch did not break the skin.
43GS went to the living room to play video games. He did not join AH in the primary bedroom for the remainder of the night.
44The next day, AH told GS that this was not acceptable and not to do that anymore. She could not recall what, if any, words he said in response. “I know I was ignored”, she said.
45AH testified that GS demonstrated similar anger before this incident, but this was the first time he laid hands on her. She stated that the status of the relationship in the summer of 2020 was “rocky”. She complained about GS drinking and being angry. She stated that he told her he did nothing wrong, and he ignored her.
46AH testified that this was one of the factors that contributed to her decision to leave the marriage. She stated that she threatened GS that she was going to leave the marriage several times.
Cross-Examination Re the Night Terrors Incident
47In cross-examination, AH agreed that GS was in the bedroom first. She denied that the child was completely beside himself once awoken.
48Defence counsel suggested that what AH told the police in her statement was different from what she said in Court in the following ways:
a) AH did not tell the police that she put her hand on his shoulder first. AH confirmed this.
b) AH did tell the police that she pushed him back after he pushed her. That detail was missing from her evidence in Court. AH acknowledged this.
49AH agreed that she told the police that there was wrestling on the floor with the boy. She also agreed that when this incident occurred, GS was in the process of giving the child medication. She disagreed however with defence counsel’s suggestion that she “tried to flip the situation where he was giving the child medication into an assault.”
September 18, 2020 – AH’s Evidence
50On September 18, 2020, AH texted GS to let him know that she “couldn’t do it anymore” and she “was done”. She stated that she texted him because his anger made her scared. “I wasn’t sure what I could be facing” she said.
51AH left the residence for a while and when she returned home, GS started yelling and screaming about how, “He was never going to get laid”. He also ranted “women are stupid”, and told her that she could not drive.
52AH testified that after the 18th of September 2020, even though she considered their status as “separated”, both GS and she remained at their house. She stayed in the primary bedroom. GS spent most of his time playing video games. He would sleep on the couch in the living room, or he would come to the primary bedroom to sleep.
53She was not comfortable with him coming to the primary bedroom. She asked him if he would stay in another room, so she could have the primary bedroom exclusively, because it had a new mattress that was easier on her back.
54They continued in this manner until November 1, 2020, when GS went hunting for a week.
55AH testified that she is a light sleeper.
The First Sexual Assault Allegation – AH’s Evidence
56At some point during the period before GS went hunting, AH was in the primary bedroom sleeping. She thought she was alone. She was wearing loose pajamas. She said that she felt the pajamas moving. She woke to GS’s hand in her underwear. His first and second fingers (pointer and middle finger) penetrated her vagina.
57She stated that his fingers were “not deep but definitely past the first digit” on his fingers.
58She screamed, “You need to stop right now”. She said that GS stated, “This is my house and I’ll do what I want.”
59She recalled that her pajamas consisted of a baggy t-shirt and a pair of stretchy, loose shorts. She was wearing underpants as well. She was sleeping on her back. The bed had a grey duvet comforter that was loosely over her on an angle. She recalled that the comforter was not tucked in.
60She stated that GS was on his hands and knees on the left side of the bed. His whole hand was in her underwear. She reiterated that she said, “What are you doing” and “You need to stop right now. This is not okay.” She reiterated that he said, “This is my house and I’ll do what I want. If you don’t like it, you can leave.”
61To this, she replied “[L] is here. This is not acceptable. You need to please leave.” She stated that at this point, GS laughed at her and walked away. There was no further conversation. “We avoided each other” she said.
Cross-Examination Re the First Sexual Assault Allegation
62AH agreed with the following points raised by defence counsel:
a) She did not tell the police that GS specifically touched her vagina.
b) She did not tell the police that GS was digging inside her vagina. “I didn’t think I needed to be that detailed”, AH said.
c) She did not mention these missing details when she went over the details with the police a second time.
d) She did not mention these missing details when she was given an opportunity to add further details at the end of the statement.
e) She did not call the police between the date of the statement and the date of trial to add these further details.
63AH disagreed with defence counsel’s suggestion that she did not tell the police that there was penetration. “They asked me if his fingers were inside me and I said um huh [indicating the affirmative]”, she stated.
64AH explained these omissions by indicating that the police did not ask her to go into detail.
65She did not tell police in her statement that GS was on his hands and knees when this incident took place.
66She did not specifically mention that GS’s hand was in her underwear. She reminded counsel, however, that she did make it clear that GS’s hand was in her private parts.
The October 6 Incident – AH’s Evidence
67She stated that this incident was essentially the same. She woke up to find GS on his hands and knees on the bed. “This time, his hand was much deeper”, she said. When she protested, GS told her, “This is my house. I’ll do what I want. You’re my wife. I’m used to this and it’s hard to get over.”
68AH recalled that before this incident, she had gone to her room. She was watching movies. She had a snack. She turned the television off and went to sleep. She was dressed similarly – in a loose t-shirt, pajama shorts and underwear. She was cuddled to a body pillow. She was on her back with the body pillow to her right.
69She stated that what woke her up this time was the penetration of her vagina. “It hurt. It was much more aggressive.”, she said. She later described it as “shocking pain because it was unexpected”. She denied that there was much in the way of lasting pain or discomfort.
70She stated that GS decided that he was not going to leave the room and he laid down beside her. She told him to stop and asked him, “What are you doing?”. She reported that he repeated the same thing, but added, “if you don’t like it, you can leave.”
71At this point, AH moved the body pillow from her right side to her left side so that it formed a barrier between them. She then rolled over to face the wall and tried to fall back to sleep. She recalled that she was crying.
72At this point, GS tried to pull her pants down from behind and force his penis into her butt. She recalled that she first noticed a fast tug at the back of her shorts, followed by a “pull down tug”, then wetness or a wet sensation on her “butt-crack”. “I reached back to say “stop”, and I felt his penis in my hand.” She told him, “This is no different.”
73She stated that he started to laugh, got up and left. Nothing else happened that evening. She got up and went to the bathroom to wipe off the area above her tailbone. She then returned to bed.
74The Crown asked AH if she discussed this with GS at any point. “I tried to.”, she said. “He just laughed at me, told me this is his house and he can do what he wants and if I don’t like it I can leave.”
Cross-Examination Regarding the Second Incident
75AH agreed with the following points raised by defence counsel:
a) she did not tell the police that GS touched her vagina,
b) she did not tell the police that GS penetrated her vagina,
c) she did not tell the police that GS’s fingers entered her vagina, or that they entered her vagina more deeply than the first incident,
d) she did not tell the police that she felt a wet sensation on her buttocks,
e) she did not tell the police that she saw or felt his penis, and it was erect,
f) she did not mention these missing details when she went over the details with the police a second time,
g) she did not mention these missing details when she was given an opportunity to add further details at the end of the statement, and
h) she did not call the police between the date of the statement and the date of trial to add these further details.
The Text Message and Recent Fabrication
76Crown counsel asked AH about a text message she sent to B on October 7, 2020. She confirmed that she sent the message. In it, the following exchange took place:
AH: I don’t know how much more I can handle being basically assaulted by [GS] anymore and I want to kiss you good morning and not just text.
AH: [redacted]
B: Did creepy [GS] show up again?? [angry emoji]
AH: Yes. I told him to fuck off twice and then he just got up and left to get ready.
B: That’s gotta be terrible for you. I think he is definitely pushing the boundaries.
77Defence counsel argued that he had not raised recent fabrication. I indicated that I would reserve on the issue and receive the text message as a lettered Exhibit. For reasons I set out below, I find that defence counsel has indeed raised recent fabrication and the text message will be entered as an Exhibit in the trial.
The Third Sexual Assault Allegation – AH’s Evidence
78AH stated that there was one other incident of sexual assault which occurred sometime between October 7 and 31, 2020. This was similar to the two previous incidents. She went to bed alone to watch a movie. She had her body pillow and she was sleeping. GS “walked in and proceeded to put his hand down my pants inside my underwear and penetrate my vagina with his two fingers for a third time”, she said.
79AH said that she was exhausted from this. She stated, “I am not going to take this any longer”. She stated she did not want to make a lot of noise because of their son. GS walked out of the room.
80AH recalled that she woke to GS’s fingers inside her body. “It was much deeper that time. I felt the blanket get tight with his knee pushed down on it.” She said that GS was “just laughing” and he told her again that he was going to do what he wants because it was his house. She stated that this time she could not tell if there was one finger or more than one. She thought that his fingers were a “little further in”, because “it was getting more aggressive.”
81She said she felt scared and like she was “not a person.” She did not discuss the matter with GS further.
82AH stated that this incident took place after October 7 but before October 31.
83After this incident, GS did not try again. He stayed in the other bedroom.
84AH left the residence during the COVID lock down in November 2020. She went to the home of her friend, CR. The child went with her.
Cross-Examination Regarding the Third Sexual Assault Allegation
85AH agreed with the following propositions put to her by defence counsel:
a) she did not tell the police that he penetrated her vagina with up to two fingers,
b) she did not tell the police that he was on hands and knees when the incident occurred,
c) she did not tell the police that he penetrated her vagina at all,
d) she did not mention these missing details when she went over the details with police a second time,
e) she did not mention these missing details when she was given an opportunity to add further details at the end of the statement, and
f) she did not call the police between the date of the statement and the date of trial to add these further details.
86AH admitted that she did not go and sleep in the third bedroom after any of the incidents of touching. She explained this by stating, "It was my bed." Defence counsel asked, "It was his bed too?” AH stated that the mattress in the primary bedroom was specifically purchased because of her back.
87AH denied that her testimony in Court was untrue. She also denied that she did not remember all the details that she testified about in Court.
The Voyeurism Incidents – AH’s Evidence
88AH explained that the main bathroom in the house has two doors. One leads to the hallway and the common areas of the house. The other door leads to the primary bedroom. Due to either a towel rack or damage to one of the joists in the floor, the lock on the bathroom door can be easily defeated.
89After September 18, 2020, GS often entered the bathroom and refused to leave, despite AH asking him to leave. AH complained that he would stand near the doorway and watch her in the shower through the curtain.
90She stated that this was a daily occurrence which took place between thirty and sixty times.
91AH also complained that he frequently entered the bathroom from the primary bedroom, sit on the toilet and pretend to pee. She became aware of this because her son would start to call for her, laugh or play with his toys. This made AH look to see what was going on. When she did, she observed GS standing there, laughing or smiling.
92She stated that this happened “at least a dozen times”.
Cross-Examination Regarding Alleged Voyeurism Incidents
93AH agreed that her son was usually involved. She stated that he would follow GS into the bathroom. She stated that she could hear the boy giggling through the curtain.
94AH stated that she felt intimidated by GS’s presence. “I talked through the curtain and asked them to leave”, she said. In response, GS laughed at her. She stated that her son was three years old and he was laughing at “whatever”. Defence counsel suggested that going into the bathroom when she was there, was “kind of like a game”. AH stated that she had no idea. She also advised that there were several occasions where her son was not present.
95Defence counsel asked AH why she had a problem with her son being in the bathroom with her. She stated that she came from a conservative family. The boy did not have to be in the room with her and he could go outside with his dad.
96At first, AH reiterated that these incidents occurred “almost every day”. Later in the cross-examination, AH stated that there were five or six incidents that “really creeped me out” where he would not listen and leave.
97AH stated that her routine during the period in question was to work “doing hair” during the day and then go to the gym or ride her bike, following which she would lock herself in her bedroom.
98Using a diary kept by GS, defence counsel asked AH about every day between September 18 and Hallowe’en. It is unnecessary to recount defence counsel’s questions and AH’s answers for every one of those days.
99Suffice it to say, AH did not remember her activities on the vast majority of these days. Defence counsel put to AH that according to GS’s diary, AH was usually out until the wee hours of the morning, if not the following day most of the days in this period. Ultimately, she agreed. She also agreed that on many of these days, she would often drop the boy off with GS before leaving for the rest of the evening. GS would be responsible for putting L to bed. GS would then get up and go to work early in the morning and L would be in her care.
100This evidence, if true, completely gutted AH’s evidence that the voyeurism incidents happened daily.
AH Moves Out – AH’s Evidence In-Chief
101AH testified that she moved out in November 2020 between the 15th and the 25th of the month. She recalled that GS was out of the house hunting for a period of seven days around November 1.
Questions from the Court
102I asked AH about GS’s regular hours of work. She stated that he usually left the house around 7:00 am and was home by 5:00 pm. She stated that he rarely worked on weekends. Occasionally, he would go in to do a quote, but this did not occur often.
Evidence of GS
GS In-Chief – General Matters
103GS is 33 years of age. He has worked for his current employer since May of 2012. His current title is project manager. He orders components and prepares material lists for the construction crew. He stated that he usually left the house at 7:30 and returned at 5:00 pm.
104With respect to AH’s work hours, GS stated that these varied. She set her own hours because she conducted her business at home.
105He stated that they bought their home in 2019. Over the Christmas holidays of 2019, he built the studio for AH to work in. He stated that he did not have any control with respect to who came or went from AH’s business, nor did he have anything to do with the business. He would occasionally assist with the bookkeeping at tax time.
106He denied making a complaint to the health unit about AH operating the salon contrary to the COVID rules. He denied telling anyone that he made the complaint.
107GS explained that the house he shared with AH had five bedrooms. Three bedrooms, including the primary bedroom, were upstairs. All of them were furnished and all had beds in them.
108Up to that point, GS had been sleeping in the same bed as AH in the primary bedroom. After September 18, he continued to sleep there “to prove a point that she was the one leaving.” “I shouldn’t have to move out of my bedroom. There was a couch. There was a spare room.”, he said.
109With respect to the lock on the door between the bathroom and the hallway, GS stated that it was a “normal bed and bath privacy lock”. He agreed that it was possible to defeat the lock by walking in a certain area of the floor outside the bathroom.
110GS testified that the house had two bathrooms, one upstairs and one downstairs. Only the upstairs bathroom had a working shower.
111GS believed that AH usually showered during the day. He only saw her take occasional showers in the evening. He added that she was not home most evenings.
112AH’s absences from the home started after September 18, 2020. He noted, however, that before September 18, 2020, it was not uncommon for AH to go to the gym in the evenings and he spent this time with their son. What changed on September 18, 2020 was what GS called “excessive” absences in the evenings.
113Up until September 18, 2020, GS thought the relationship was “going ok”. He stated that he was “blindsided” by the disintegration of the relationship. He added that he became suspicious that AH was seeing someone else. He ultimately narrowed the other person down to B, with whom she had dinner shortly after September 18. “I kinda put it together,” he stated.
114GS stated that B had been a member of the same circle of friends as AH and GS.
115GS stated that he commenced family law proceedings in January or February 2021. He stated that although these proceedings were commenced in January 2021, there was no mention of any allegations of sexual assault in any family law documents. That did not happen until AH went to the police in July 2021.
116GS denied that he had ever taken a pair of AH’s underwear.
117GS denied ever being charged with impaired driving. He stated that he was pulled over after an anonymous complaint, but he did not “blow over”.
Cross-Examination of GS Re General Matters
118GS agreed that he was “blindsided” by AH’s revelation on September 18, 2020 that she wanted a divorce. He agreed that he was told this by her at 4:00 pm that day.
119GS agreed that he was very upset when AH told him that she wanted the relationship to end. He repeated his evidence-in-chief that he was “blindsided by it”. He agreed that he was emotional. He disagreed, however, that he purposely did things, such as walking in the bathroom when she was showering or laughing at her when she objected to him doing so, to make her uncomfortable. “I wouldn’t say that there was any change to my routine”, he stated.
120GS disagreed that when his attempts to make her uncomfortable did not work, he escalated things. GS denied that he started coming into the bedroom while AH was sleeping. He disagreed that on at least three occasions, she woke up from a sleep to find him there. He denied that he penetrated her vagina on those three occasions.
121GS disagreed that even once AH left, he interfered with her business. He denied that he left her a pamphlet about COVID in her salon.
GS Evidence-In-Chief Regarding the Night Terrors Incident
122GS agreed that their son frequently had night terrors. He stated that “99 percent of the time”, he got up with the boy. When these incidents happened, he would try to soothe the child by picking him up and walking around with him. He would make louder noises to try to wake the child from the night terror. When asked if he yelled at the child, GS stated, “Not overtly yell, no”.
123GS stated that the night terrors were pretty common. They took place “almost every other night”. Sometimes, they would occur multiple times a night.
124GS stated that it was very rare for AH to get up and assist with soothing the child.
125He recalled one occasion when she did get up to assist. “The events she described didn’t happen” he said. He explained that he was taking too much time and probably woke AH in his efforts to get the boy settled. He admitted that he was frustrated, and when AH came in, he was “a little angry”. He left the room and AH dealt with the boy.
126GS stated that he left the room after AH told him to leave. He stated, “I was past the point of being frustrated with him, so I just left the situation”. To his recollection on the night in question, AH came in after he had been up with the boy three or four times.
127He could not recall whether he was holding the child when AH came in.
128He stated that he “does not remember” any contact. He denied ever pushing AH, laying his hands on her, or threatening her.
129GS agreed that there was a fishbowl in the room, but he does not remember the water ever spilling from the fishbowl.
130GS stated that they often had to hold the boy down to give him some medication. GS stated that this occurred because the boy was “three or four [years old] and doesn’t want to take it.”
Cross-Examination of GS Regarding the Night Terrors Incident
131GS agreed that there was a fishbowl or tank in L’s room that was located on a highboy dresser.
132He also agreed that after the incident in L’s room, AH asked him to leave.
133GS agreed that night terrors are extremely frustrating to deal with. The terrors themselves lasted between 10 and 20 minutes in duration. After each one, he was up for an hour trying to get the child calmed down. He also agreed that it was very difficult to wake L up when he was having a night terror. He agreed that on the night in question, this was the third time (or more) he had been up with the child over a four to five hour period. He agreed with the Crown’s assessment that he did not get much sleep.
134GS agreed that on the night in question, he was extremely frustrated. He did not think that he was shaking the bed while attempting to wake L. He repeated his evidence-in-chief that most of the time, he would pick L up and walk him around to try to wake him up as gently as possible. He stated that he rarely shook the bed.
135GS agreed, however, that AH told him that he was being loud and she asked him to leave.
136With respect to the distance between the dresser and the bed, GS stated that the two items of furniture were at least eight feet apart. He agreed it would have been possible to push AH. “It would have been a good shove”, he stated. “But I didn’t”.
GS’s Response to the Allegations of Sexual Assault
137GS denied ever touching AH in the manner she suggested. He denied telling AH that it was his house and he could do what he wanted. He stated that she never confronted him about any touching.
138He agreed, however, that he had previously “used that phrase” (“It is my house and I can do what I want”) during an argument “about something”.
139He specifically denied ever touching AH’s vagina in the manner that she alleged.
140With respect to the bed, he could not recall the exact date when it was purchased, but he estimated it was during the winter of 2019. He stated that the bed was purchased for both AH and him. In his view, they both owned it. He described it as a “normal king-sized bed”.
141GS agreed that the bed often had a body pillow that was between him and AH as they slept. He stated that he would occasionally cuddle the body pillow.
142GS denied ever touching AH without her consent.
GS’s Response to the Allegations of Invading the Bathroom
143GS denied ever trying to go into the bathroom when it was locked. He stated that the bathroom door was only locked when other people were visiting. It was never locked otherwise.
144GS specifically denied ever going into the bathroom when AH was showering. He also denied ever taking the child into the bathroom when AH was showering. He denied ever looking at AH when she was naked in the bathroom. He denied ever attempting to pull back the screen or curtain in the shower while AH was using it. He stated that AH never told him to get out of the bathroom. He specifically denied AH ever telling him to leave the bathroom because he was “creepy”. He denied ever laughing at AH while she was in the shower.
145He agreed that if he needed to use the bathroom while AH was showering, he would go use the downstairs bathroom. He could not, however, remember ever having to do this.
GS’s Evidence Re The Diary
146GS testified that he took notes after September 18, 2020 on the advice of his family lawyer. His notetaking lasted until AH moved out of the home in November. He usually made one entry per day. The notes set out times of contact with AH and AH’s daily activities.
147GS stated that he made notes daily. The only time he would make additions or deletions was when he fell asleep before AH came home. He would then note the pertinent details of AH’s comings and goings the next day.
148GS recalled that on September 18, 2020, he went home at about 4:00 after receiving a text from AH that “she was done”. He could not recall who was responsible for childcare.
149He stated that he did not speak to his lawyer until September 21, so his notes for the 18th, 19th and 20th were not made until after he spoke with his lawyer.
150He stated that the notes were prepared using the “notes app” on his phone.
151Although they were reviewed in intricate detail in the evidence, I am not going to review the notes day by day in these reasons. The notes generally establish a week-day pattern that accords with what I have already noted as the general routine in the household, namely that:
a) GS went to work at 7:00 or 8:00 am,
b) AH was responsible for childcare while GS was at work; she would also do some work in her salon,
c) GS would return from work at about 5:00 pm, and
d) typically, within an hour of GS returning home, AH would leave for the evening and often not return until later that night or early the next morning.
152The exceptions to this general routine are:
a) September 22, 2020 - GS did not have any memory of that day and there were no notes in his diary.
b) September 23, 2020 - GS did not note what time AH returned home.
c) September 25, 2020 - GS did not go home at the usual time; he went out with some friends, and when he got home at 11:00 pm, the child was still awake and GS put him down to bed.
d) September 26, 2020- (Saturday) - GS was home all day, but he could not recall whether AH was also at home. At some point, she left and did not come home until 11:30 pm.
e) September 27, 2020 - (Sunday) - GS went golfing in the morning, and AH left shortly after he returned, then she was out until about midnight.
f) September 28, 2020 - GS did not note whether AH went out that night.
g) September 30, 2020 - GS did not note whether AH went out that night.
h) October 1, 2020 - Normal routine except that AH returned home earlier than usual at about 8:15 pm.
i) October 3, 2020 - (Saturday) - GS did not work and he was not sure if AH was present. They had supper together and then AH left and came back at 8:00 the next day.
j) October 4, 2020 - (Sunday) - GS did not work, but he believed that they briefly crossed paths that day. AH left to go shopping in Kingston at 10:00 am.
k) October 5, 2020 - AH returned from shopping trip at 8:00 pm.
l) October 6, 2020 - AH returned home earlier than expected at 8:35 pm.
m) October 8, 2020 - GS noted that he started sleeping in the spare room. “My point wasn’t being proven so I moved to the spare room”, he stated.
n) October 9, 2020. - AH was at home that evening. GS stayed out until 9:30 pm.
o) October 10, 2020 - (Saturday) - AH left at 9:00 am. GS was at home and AH did not return until October 11 at noon.
p) October 11, 2020 - (Sunday) - AH took the boy four-wheeling as soon as she got home. She returned at 8:45 pm to drop the boy off and went back out until 1:30 am.
q) October 12, 2020 - (Thanksgiving Monday) - AH left for the day in the morning and returned home at 9:15 pm.
r) October 15, 2020 - AH was at home but stayed in her room most of the evening. He put the child down for bed. When he came out from doing that AH had left.
s) October 16 and 17, 2020 - GS was away for the weekend with his friends in Chalk River.
t) October 18, 2020 - (Sunday) - GS was away until early afternoon. He put his camper in storage. AH left at 7:15 pm and returned sometime after 1:00 am on the 19th.
u) October 19, 2020 - Both parties were at home. They had a two-hour conversation about division of assets.
v) October 24 and 25, 2020 - (Saturday and Sunday) - He did not make any notes.
w) October 29, 2020 - AH dropped L off with her mother for the day. She then went out. GS believed that she returned home and they were mostly likely both at the house that evening.
x) October 30, 2020 - Both parties were at home.
y) October 31, 2020 - He left to go hunting for the week.
153GS stated that he continued keeping the diary until the end of November when AH moved out of the house. His last diary entry was November 23, 2020.
Cross-Examination Regarding the Sexual Assault Incidents and the Diary
154GS stated that he started taking notes almost immediately after he received word from AH that she wanted to end the relationship. He stated that he took more detailed notes once he had spoken with his lawyer. He agreed that when he was making notes, he was recording what he thought was important. At the time, he did not think that it was important to record whether AH had taken a shower. He agreed that absent his notes, he has no specific independent recollection of what occurred.
155GS stated that most of the notes were taken as a result of text messages. He stated that AH and he did not have many face-to-face conversations. He usually made the entries in his journal before he went to sleep.
156GS agreed that there was an occasion sometime in November 2020 where he went to the police to discuss B trespassing at his residence. He stated that B was making frequent visits. He called the police to find out if he could keep B from attending. He stated that he did not want there to be any conflict. “I was looking for advice. It was an emotional time. It was more of a “stay away please” kind of thing”, he stated. He agreed that it was hurtful to have someone cheat on you and rub it in your face. He also agreed that he was dissatisfied with the police response which was essentially nothing.
157Crown counsel asked GS about his statement in-chief that he moved out of the primary bedroom on October 8, 2020 because he had not proved his point. He stated that when he made the remark, he was referring to the fact that AH, not him, chose to end the relationship. “Why should I have to leave my bed? If you want to leave, there is a spare room”, he said.
158GS agreed that there was nothing special about November 23, 2020 that made him stop taking notes of AH’s comings and goings other than that was the date that AH stopped regularly staying at the residence.
159With reference to GS’s evidence from October 6, October 7, October 15, GS disagreed with the Crown’s characterization that he was making it so uncomfortable for AH that she had to leave. “That’s her view”, he stated. “That was not what I was doing. It was obviously uncomfortable for everyone.”
160He agreed that he made a special note on October 15, 2020 that B’s truck was parked in the driveway. He said that his parents saw it and it upset them.
161He agreed that he was so fixated on AH’s relationship with B that he took notes. He agreed that he became more frustrated and angrier as the six-week period between September 18 and October 31 progressed. He agreed that he made assumptions regarding the nature of AH’s relationship with B. With respect to those assumptions, he stated, “He left his marriage on a Monday. She left hers on a Friday. They had dinner on Saturday. That’s a pretty good assumption.”
162GS agreed that throughout this period and after, AH and B were no longer included in their friend group.
163Crown counsel asked GS to go over his notes for October 6, 2020, which is one of the days that AH said that GS sexually assaulted her. GS stated that he noted that AH went to see a lawyer. He got home after 5:00 pm. She left and went to A’s house. She returned at 8:35 pm.
164He agreed that he skipped over a portion of his notes where he stated that she came home after seeing the lawyer and talked about, “How much she could fuck my life over.” “I realised the battle I was going to have.”, he stated. He agreed that he was frustrated, angry and upset. He knew that there were “big changes coming”. He was concerned about how much time he would have with L. He disagreed that he was concerned about losing his home. “Possessions don’t mean much to me. She was going to take my kid away from me”, he stated.
165He disagreed, however, that he escalated things and sexually assaulted AH. “I was frustrated, but to sexually assault someone when you are frustrated? Not going to happen.”, he said.
Re-Examination of GS
166GS stated that the family law proceedings with AH are still outstanding. They are to the point of setting a trial date. A parenting assessment is underway. At this point, pursuant to an Order that was imposed by the Family Court, he has parenting time with L every Wednesday overnight and every second weekend.
Examination-In-Chief of Constable Price
167Defence counsel called Constable Price, who was the officer who took AH’s report on January 5, 2021 regarding a dispute between AH and GS over L.
168Constable Price has been a member of the Ontario Provincial Police since November 4, 2016. She acknowledged knowing defence counsel for some time because she was a former student of his at the local community college. Crown counsel did not raise any conflict.
169On January 5, 2021, she was working general patrol. She was dispatched to a domestic call. The complainant was AH. AH told her that there was an arrangement between GS and her to pick up L at a residence on Pleasantview Drive at noon. AH complained that she attended and there was no answer at the door.
170Before Constable Price was able to speak with her, AH called police again to state that she had successfully made contact with GS. She stated that GS told her that he was called into work to deal with a client. He also told her that he had dropped off L at his parents’ address. He gave her permission to pick up the child at his parents’. AH complained that she was not satisfied with this arrangement because of tension between GS’s parents and her. Constable Price told AH to try to make attempts to come up with other arrangements. Apparently, the parties were able to work it out that he would drop the child off immediately after work, which was to take place within an hour.
171Despite the situation having been defused, Constable Price still wanted to speak to AH about the relationship. “I wanted to know if there was any physical contact”, she said. “She told me there wasn’t”, she added. She stated that she questioned AH if there was any history of physical violence. AH told her that there was no history. She also did not make any complaints of sexual misconduct.
172Constable Price filed a report about the results of her investigation including her discussions with AH. In that report, she noted all the information about her conversation with AH. She stated that because the call was classified as “a domestic”, police procedure is to always complete a Domestic Violence Report. AH declined to participate.
173Although it was a brief conversation, Constable Price said that there was no doubt in her mind that she asked AH about the course of the relationship. Upon completion of this report, she never had any further dealings with AH or GS.
Cross-Examination of Constable Price
174In cross-examination, Constable Price stated that she spoke with AH by telephone for probably 10 to 15 minutes. The specific question she asked was whether there had ever been any domestic violence or physical altercation.
Defence Submissions
175Defence counsel submitted that the Court should have serious concerns with the credibility of AH. He stated that her evidence that GS watched her in the bathroom between thirty to sixty times was mathematically impossible and exaggerated. He submitted that this case occurs against the backdrop of an acrimonious family law dispute where AH has motive to be untruthful.
176Defence counsel pointed out that AH did not raise the allegations in her initial Family Court materials. He also submitted that AH did not raise the allegations when she contacted police and spoke to Constable Price in January 2021.
177He argued that AH had a poor memory and made “huge additions” to her account of what happened from her original version to the police.
178Defence counsel pointed to the following omissions in her evidence regarding the night terrors incident:
a) AH testified that she put her hand on GS to let him know that she was there when she first went into the bedroom. There was no discussion of this in her police statement.
b) AH told police that she pushed him back after he pushed her. That detail was missing from her evidence in Court. AH acknowledged this.
179Defence counsel pointed to the following omissions in AH’s evidence regarding the first allegation of sexual assault, which he argued were core details as opposed to peripheral ones:
a) She did not mention anywhere that he was on his hands and knees as he approached her in the bedroom.
b) She did not tell police that his hand was inside her underwear.
c) She did not tell police that he was digging in her vagina.
d) She did not mention “slight penetration” to the police.
180Defence counsel pointed to the following omissions in AH’s evidence regarding the second allegation of sexual assault, which he also argued were core details:
a) She did not tell the police that he touched her vagina.
b) She did not tell the police that he penetrated her vagina at all, let alone “deeply”.
c) She did not tell the police that he was also on his hands and knees when this incident took place.
d) She did not tell the police that she felt a wet sensation on her buttocks.
e) She did not tell police that she felt his penis.
181With respect to the third incident, defence counsel pointed to the following omissions, which he stated were core details:
a) AH did not tell police that GS’s finger, or two fingers penetrated her vagina.
b) She did not tell police that he was on his hands and knees.
c) She did not tell police that he was “more aggressive” and his penetration went deeper.
182With respect to the evidence of GS, defence counsel argued that GS is “not perfect” and “had flaws”, but he was truthful and I should believe him and acquit. In the alternative, he submitted that GS’s evidence should leave me in doubt even if I do not believe him.
183Defence counsel argued that GS’s decision to stay in the bedroom after the relationship had broken down was unwise. He submitted, however, that there is a huge difference between an unwise decision and sexually assaulting AH.
184He pointed to the fact that GS adamantly denied touching AH in any sexually inappropriate fashion or watching her in the shower.
185He stated that GS was truthful in his description of the night terrors incident. He admitted that he was tired and frustrated and it was time for him to leave. “Anyone who has been a parent can understand”, Defence counsel argued.
Crown Submissions
186Crown counsel opened her submissions by conceding that the Crown had failed to prove the voyeurism charge and invited me to acquit GS on that count. I agreed to do so, given that the element of surreptitious observation required to make out that offence was missing.
187With respect to the night terror incident, Crown counsel urged me to find that GS became aggressive and struck AH as she said he did.
188With respect to the omissions in AH’s evidence concerning the three sexual assaults, Crown counsel argued that the quality of AH’s answers was very dependent upon the quality of the questions that were put to her by the police officer. She argued that “additional details” that AH testified to at trial were given in response to specific questions at trial that were not asked by the police. This, advocated Crown counsel, should not be detract from AH’s reliability and credibility.
189With respect to GS’s evidence, Crown counsel maintained that GS was upset and blindsided by AH’s decision to leave the marriage. He then set about a course to make it as uncomfortable as possible for her to continue to reside in the home. He proceeded to “go down a rabbit hole of bad behaviour to try to force her out.”
190Crown counsel pointed out that GS’s notes from October 6 to the point that AH could “fuck his life over” makes it clear that he escalated the conflict with AH and sexually assaulted her. Crown counsel argued that Exhibit 1, the text message, also corroborated that “something” happened the night before.
191Crown counsel alleged that GS’s evidence was not credible or reliable. His story changed when he was pressed for specifics. His notes were not reliable. They were recreated from text messages between him and AH. He agreed that he said that the house was his and he could do as he pleased. This is the same language that AH said he used when she confronted him about sexually assaulting her. This was part of a sustained campaign to make her leave the house.
192Crown counsel urged me not to rely on the two short telephone conversations AH had with Constable Price given AH’s evidence that she was under the impression that Constable Price was asking her about events that day or recent events. Crown counsel argued that AH’s primary concern was to ensure that L was returned to her care.
Analysis
The Issue of Recent Fabrication and the Text Message
193“Recent fabrication” arises when there is an allegation that a witness has, between the date of the incident complained of and the date that she testifies at trial, lied about the allegations: R. v. Stirling, 2008 SCC 10 at paragraph 5.
194The word “recent” in the concept is something of a misnomer. The fabrication need not be particularly “recent”: R. v. Stirling, supra, citing with approval R. v. O’Connor.
195In order to rebut an allegation of recent fabrication, the Crown is entitled to present evidence of the prior consistent statements of the witness. This is an exception to the general exclusionary rule with respect to prior consistent statements.
196This area of law is not new or novel.
197I was surprised when defence counsel stated that he did not believe that recent fabrication was in play, given that it was one of the main prongs of his defence which essentially was an all-out assault on the credibility of AH.
198For this reason, I have made the text message between AH and B from October 7, 2020 Exhibit 1.
199I will discuss the weight of it below.
The Law with Respect to the Assessment of Credibility and the Assessment of Evidence
200This case involves the assessment of reliability and credibility and the application of the principles in R. v. W.(D.).
201GS is at all times presumed innocent until such time as the Crown proves his guilt beyond a reasonable doubt.
202The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to GS. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.
203In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed triers of fact to assess evidence in this way:
a) First, if you believe the evidence of the accused, obviously you must acquit.
b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
204In R. v. Kruk, 2024 SCC 7, at paragraphs 59 through 62, the Supreme Court of Canada affirmed W.(D.) and had this to say about the linkage between the presumption of innocence, proof beyond a reasonable doubt and a trial judge’s task in assessing credibility:
The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence — a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119) — requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered (Osolin). Closely related to the presumption of innocence is the accused’s right to silence as enshrined in s. 11(c) of the Charter, which safeguards human dignity and privacy against processes or reasoning that would compel an accused person to incriminate themselves with their own words (R. v. Noble, [1997] 1 S.C.R. 874, at paras. 69-78).
Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72). Likewise, it is improper to discount the credibility of accused persons on the basis that, because they face criminal penalties, they will say anything to protect themselves. Though considering the possibility that the accused may have a motive to lie will not necessarily offend this rule, courts should be wary of going further and drawing the “impermissible assumption” that they will do so in all cases (R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14). Such reasoning is premised on a supposition of guilt and therefore offends the presumption of innocence (para. 12).
The presumption of innocence also restricts how credibility is assessed in cases of conflicting testimony between defence and Crown witnesses. The analysis of testimony must never be treated as a contest of credibility, and triers of fact need not accept the defence’s evidence or version of events in order to acquit (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 23; R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 757). The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).
Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W. (D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much — or all — of the accused’s evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused’s testimony, or does not know who to believe, the accused is entitled to an acquittal (J.H.S., at paras. 9-13; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19). Finally, where the Crown relies on circumstantial evidence to establish guilt, the trier of fact may only convict if guilt is the only reasonable inference from the evidence (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30).
205The law is clear that I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a Court can accept all, some, or none of a witness’ testimony.
206In considering reliability and credibility, the Supreme Court has also recently made it clear that, so long as a trial court does not engage in prohibited reasoning based on myths and stereotypes, it is not only permissible, but a trial judge is expected and required to rely on common sense and experience in determining issues of credibility and reliability: R. v. Kruk, supra, at paragraphs 72 and 73.
207Kruk also confirms the distinction between credibility and reliability. A witness who is credible, is not necessarily reliable. A witness may be sincere and credible, but their evidence may also demonstrate that their recollections are not reliable. Not every inconsistency, however, gives rise to the conclusion that a witness is unreliable. Some inconsistencies are important; others less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern: R. v. Stewart, [1994] OJ 811 (Ont. C.A.) at paragraph 27.
Do I believe the Accused?
208There are parts of GS’s evidence that I believe and parts that I do not believe at all.
209GS was severely hurt and wounded by allegations of AH’s infidelity. He did not take it well. I agree with the Crown that after September 18, 2020, he carried on in such a way as to make AH’s time in the matrimonial home as unpleasant and unpalatable as he could. I also agree with the Crown that he was of the view that since he was not the one who initiated the breakdown of the relationship, he should not be the one to leave the matrimonial home or the primary bedroom. These themes emerged “loud and clear” in his evidence. He admitted to saying – at some point – “This is my house. I can do what I want. If you don’t like it, you can leave”. He also admitted that he finally left the primary bedroom on October 8 after deciding that he was not going to make his point.
210In my view, this is fatal to the issue of whether I can believe him. GS was so wrapped up in his hurt and bitterness that he completely lost sight of the importance of moving on for the benefit of everyone, in particular L. His view was that AH had declared war on him by getting involved with B. His defence was, essentially, to entrench himself in the matrimonial home and to force AH out.
211The Assault Incident: I do not believe GS. When he was first asked about this during his examination-in-chief, his evidence was that he did not remember ever assaulting AH. Only when specifically asked if he assaulted her by his counsel in a follow-up question, was there a complete denial.
212As I said most recently in R. v. J.S., 2024 ONCJ 185, there is a significant difference between “I don’t remember” and “It didn’t happen”. “I don’t remember” is a neutral statement. It allows for the possibility that what is complained of happened as the complainant described and the accused simply does not remember it happening. It is much different than a complete denial.
213The Sexual Assault Incidents: Here GS did completely deny the incidents as AH described. With respect to the first two incidents, I do not believe his denials for the following reasons:
a) The evidence is clear that GS continued to sleep in the bed in the primary bedroom until October 8, 2020. Then, he left the matrimonial bed and started sleeping elsewhere because AH had not succumbed to the point that he was trying to make by continuing to sleep in the matrimonial bed. The coincidence between the timing of the October 6 incident and the sudden revelation that he was not making his point, so it was time to stop sleeping in the same room and the same bed as AH, is fatal to any belief I had in his denial.
b) On October 6, the only day that AH could tie to a specific incident, GS’s notes reflect the fact that she came home at 8:30 pm, which was earlier than usual. She had been to see a lawyer that day and he was concerned that she could “fuck him over”. In light of my other concerns about how GS took the news of the breakdown of his relationship with AH, I cannot, against this backdrop, believe his denial.
214The Bathroom Incidents: These incidents no longer form the basis of a charge, but I heard extensive evidence about them. They are critical to the credibility and reliability of AH and GS. The day-by-day review of GS’s diary in both his evidence and AH’s evidence makes it clear that there were a number of days where GS had the opportunity to invade AH’s privacy in the bathroom, but nowhere nearly as many as AH alleged. In light of GS’s stubbornness with respect to leaving the matrimonial bed and bedroom for the purpose of making his point that AH should leave, I do not believe his denials that he did not specifically go into the bathroom when AH was showering to make her feel uncomfortable.
Even Though I Do Not Believe the Accused, Does His Evidence Leave me in Doubt?
215For the reasons set out above, I am not left in doubt by GS’s evidence with respect to the assault.
216I am left in doubt, however, by his evidence with respect to the sexual assaults. Although I have assessed GS’s intentions negatively with respect to the first branch of the W.(D.) analysis, I was struck by the nature of GS’s denial when he was cross-examined by the Crown about the October 6 incident. He agreed that he was frustrated and upset about the separation and AH’s involvement with B. However, he also said, “I was frustrated, but to sexually assault someone when you are frustrated? Not going to happen.”
217This denial was never really shaken. Thus, although I do not believe GS’s account, the nature of this denial does leave me in doubt.
218For reasons I will set out below when I assess the balance of the evidence, I cannot find that I can reject GS’s denials on the basis of a considered and reasoned acceptance of the evidence of AH.
On the Basis of the Evidence I do Accept, Am I Satisfied Beyond a Reasonable Doubt as to the Guilt of GS?
219AH’s evidence was fraught with difficulty. I cannot find it credible or reliable.
220I start with this time-honoured and well accepted proposition: Late or incremental disclosure in sexual assault cases will not, standing alone, constitute a reason to diminish a complainant’s credibility. In R. v. D.D., 2000 SCC 43, at paragraph 65, Justice Major stated:
[T]here is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
221Missing Details in the Prior Statements Compared to Her Evidence in Court: Defence counsel has established that AH was not detailed in her statements to the police. Although she stated that GS sexually assaulted her and touched her private areas, she did not describe exactly how this took place. When confronted about this in her evidence, she cast blame on the police officer taking her statement, who told her to give as much or as little detail as she wanted. She explained that she did not know that she was required to give that level of detail.
222To a certain extent, I have sympathy for the Crown’s predicament and Crown counsel’s submission that the quality and completeness of AH’s answers in her prior statement depended upon the quality of the questions and completeness of the questioning.
223However, sexual assault is a serious crime. An allegation of sexual assault should be investigated in a serious and complete manner by trained and experienced police officers. The Court cannot be – and, with respect, the Crown should not be – an apologist for poor decisions made by the police at the investigation phase. The accused has the right to know the core details of what is alleged against him, so that he can prepare his defence. The failure to document core details at the earliest phase of the investigation, when memories are fresher, cannot be compensated for later in evidence in the courtroom.
224I agree with defence that the details that AH testified to in court are core allegations. This is not a case where these details were not provided because she was embarrassed, afraid, or feeling guilty. They also are not peripheral details. AH understood that what she was reporting was a crime. She went specifically to the police station to report this crime. This was not a situation where she did not know that what she was alleging was criminal. By not getting into those core details from the get-go, the police unwittingly have assisted defence in establishing that AH’s evidence is unreliable.
225The Failure to Report the Incidents to Constable Price on January 5: I accept Constable Price’s evidence without reservation. Whatever can be said of the other aspects of the police investigation in this case, Constable Price’s evidence was clear: she was keenly interested in the possibility that AH had suffered other abuse. She specifically asked AH about whether there had been any violence in the relationship and AH said that there was not. She also asked AH to answer questions in relation to a domestic violence screening report, and AH declined.
226AH’s explanation for failing to do so rings hollow.
227By January 5, AH was out of the house. She no longer had concerns for her safety. She did not hesitate to call police about the parenting time dispute. It was a golden opportunity to complain about these incidents. She did not. Her explanation for not doing so is not adequate. She does not explain the failure to disclose by suggesting that she was embarrassed, felt guilty, or did not understand that what she says happened was criminal.
228I do not accept AH’s evidence that she did not disclose then because she thought that Constable Price was only interested in what she had to say about the parenting time dispute, and she did not think that Constable Price was asking her about issues during her relationship with GS.
229The Failure to Make Any Allegations about the Incidents in the Family Law filings: Later in January, GS commenced Family Court proceedings. AH admitted that in her family law filings, which were prepared with the assistance of counsel, she did not allege any sexual impropriety on GS’s behalf. There is no explanation for this.
230How the Allegations Actually Came About: Given Justice Major’s reasoning in DS, I would be persuaded to overlook these earlier failures on AH’s part to disclose what happened to her if not for the evidence with respect to how and when she ultimately did disclose it. In my view, this is particularly damning. In July 2021, AH went into the police station to report what happened. She did so on the same day that B went into make allegations against his former spouse. They drove to the police station together. In my view, this implies some sort of joint decision to go to the police. There had to be discussions about it. It makes the report unreliable.
231Throughout the trial, I was treated to snippets of evidence about the wider effects of AH’s and GS’s separation. AH and B were expelled from the friend group. AH believed that GS was guilty of “slander” for telling people that she had taken up with B. B’s former spouse had apparently laid charges against B. GS called the police to complain about B attending at the house. AH called the police to complain about GS not returning the child on time.
232This is not a case where AH delayed coming forward because she was embarrassed, afraid, felt guilty about causing GS difficulty, or lacked understanding and knowledge of the fact that what she was reporting was a crime. She came forward as part of a joint process with B. It gives me reason to doubt the veracity of her evidence.
233The Evidence With Respect to the Shower Incidents Was Exaggerated: AH’s evidence with respect to the shower incidents was grossly exaggerated. At one point, she estimated that it happened 60 times, or was an everyday occurrence. Later, after she was confronted with suggestions about the evidence from GS’s diary, she said that there were really just five or six incidents that creeped her out.
234I cannot rely on her evidence. I do not doubt that there were probably occasions where GS interfered with her personal space, and he probably did violate her privacy in the shower. After all, his plan of attack was to get AH out of the house, but I cannot safely rely on her evidence, because it is so significantly exaggerated.
235AH was not a careful witness with the truth. This gives me cause to doubt the strength of all of her evidence.
236What about the text message? The Crown says that the text message between AH and B should assist me in overcoming the difficulties with her credibility, at least with respect to the October 6 incident.
237I disagree. If the text message were more detailed, and set out what exactly happened, I would be inclined to agree with the Crown and find that there was a reasoned and considered basis to accept AH’s version of what happened on October 6. However, the text message only refers to being “basically assaulted”. AH does not disclose any factual details, other than she told GS to “fuck off”. He then just got up and left for work.
238I do not know what AH meant by “basically assaulted”. I cannot find that this is corroborative of anything other than the fact that, as I have already concluded from my review of GS’s evidence, I think something happened between AH and GS on October 6. I cannot find beyond a reasonable doubt that the “something” was the sexual assault that AH described.
239Findings with Respect to the Assault Allegation: My problem with AH’s reliability and credibility also causes me to have a doubt with respect to the assault allegation. Although I do not believe GS’s evidence and I am not left in doubt by it with respect to this allegation, the problems with AH’s general reliability and credibility make me unable to conclude that I am sure GS assaulted her. I think GS was frustrated and exhausted from getting up with L for the third or fourth time that night for a night terror. I think that he may have taken this frustration out on AH and assaulted her with his elbow when she came to take her turn at getting the boy calmed down, but I cannot be sure. If I cannot be sure, GS is entitled to an acquittal.
Released: May 2, 2024 Signed: Justice J.R. Richardson