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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

CITATION: R. v. R.P., 2024 ONCJ 240

DATE: March 28, 2024

COURT FILE No: 20-1542

O N T A R I O C O U R T OF J U S T I C E

B E T W E E N :

HIS MAJESTY THE KING

-AND-

R.P.

Before Justice M. G. March

Heard on August 8, 2022, January 25 and 26, February 17, April 17, May 31, June 5, 28 and 29, July 27 and October 18, 2023

Reasons for Judgment released on March 28, 2024

Ms. Teresa James……………...……………………………Counsel for the Provincial Crown

Mr. Mark Huckabone..………………………………………………………Counsel for R.P.

March, M.G., J. :

Introduction

1R.P. stands charged that between the 28th and 29th of November, 2020, he did

a) commit a sexual assault upon H.J., and

b) unlawfully confine H.J.

contrary respectively to sections 271 and 279(2) of the Criminal Code of Canada (the “Code”).

2At the outset of the trial on August 8, 2022, the Crown withdrew a charge of kidnapping against R.P.

3Thereafter, R.P., through his counsel, went on to admit the dates of the alleged offences, the jurisdiction of the Court to hear the matter, and the ability of H.J. to identify him as the accused perpetrator of a sexual assault upon her, as well as the person who allegedly confined her.

4R.P. and H.J. are members of the Canadian military. Over the course of a few months in the fall of 2020, they worked in the same place at Garrison Petawawa, H.J. as a trainee and R.P. as her ‘on the job’ (“OJT”) Coordinator.

5Their relationship later became an intimate one. It ended quite badly a few days after a night of drinking at the home of a mutual friend, K.G.

6As with so many criminal trials, the outcome of this one too will turn on an assessment of the credibility and reliability of the accounts given by H.J., K.G. and R.P. on the night in question.

The Relevant Evidence

H.J. :

7When H.J. began giving her evidence on January 25, 2023, she was 22 years old. At 18, she enlisted in the military and was sent to St. Jean, Quebec to do her basic training. Before arriving at Garrison Petawawa in the spring of 2020, she had been briefly posted to Borden, ON.

8She described her trade in the military as an “electronic/optronic tech” (“EO Tech). Essentially, she is responsible for maintaining the electronic and optical components of various types of military equipment.

9At the time of providing her testimony to the Court, she had a “spouse”, with whom she had been for the past two years. She had also been promoted to the rank of corporal. She was as well a member of the Royal Canadian Dragoons tasked primarily with working on light armoured vehicles.

10Her brother, G.J., was also an EO Tech in the military. He lives in nearby Renfrew, ON, and is also stationed at Garrison Petawawa. She resided with him when she first came to the Pembroke/Petawawa area, where his then home was at the time of his sister’s arrival.

11H.J. recalled that she first met R.P. in the summer of 2020. She was placed on her initial rotation as a trainee under his limited direction within the Royal Canadian Regiment. He was a corporal. She was then a private.

12She explained that his responsibility was to check on her “books” to make sure she was making progress with her professional development. His role was supervisory in nature. However, he was not responsible for assigning her work tasks. That duty fell to Mcpl. S., who was also present in her “shop”.

13H.J. described R.P. as someone who knew her brother, G.J. Through him, they became friends. On occasion, they would hang out at her brother’s house.

14H.J. offered that she became aware R.P. was married with kids.

15One day, R.P. pulled H.J. into his office. He asked her if she was trying to seduce him. She denied she was. She knew of his “situation”.

16She was crying while this conversation occurred. He told her that he was suffering from anxiety as well.

17Shortly thereafter, he invited her out for coffee. As H.J. put it, “It kinda got weird.” It escalated to what she would call “an affair”.

18After three straight days of going for coffee, the intimacy commenced between them. She placed this as happening in the fall of 2020. It was what she referred to as “fraternization”. She added that it was “frowned upon” for members of the military to be in a relationship with someone in your workplace. As a result, they did not tell anyone about their relationship. R.P. warned her that it would ruin their careers if someone were to find out.

19H.J. lamented that she had tried to end the relationship with R.P. on several occasions over the course of the few months it lasted. She told him it was not “good” for her. He would agree and then she would receive a long text from him professing his love for her. He would explain to her how he could not simply turn off his feelings for her.

20It seemed to H.J. that she could not end the affair. She did not have any choice in the matter.

21She gave evidence that she was new to Petawawa. R.P. was really the only friend she had. She knew another military colleague, K.G., with whom she would chat occasionally on Facebook, but they did not socialize outside work.

22R.P. and K.G. were friends as well. She was aware that K.G. was single and lived with his pet dog.

23She had only been to K.G.’s house on one occasion - the very night the material incidents occurred. R.P. and she had broken off the relationship and he was being “super supportive”. They agreed to hang out at K.G.’s place on Saturday, November 28, 2020.

24R.P. picked H.J. up at her brother’s residence. They drove in R.P.’s truck to K.G.’s. She recalled that K.G. was in the backyard cooking burgers upon their arrival.

25Together, they had a few beers and smoked some weed. She brought the cannabis with her.

26They went inside to eat. Afterwards, they moved into the living room where they played video games. They were seated on an L-shaped couch with her at the short end, K.G. in the middle, and R.P. to his right.

27Later, they played a drinking game called King’s Cup. By H.J.’s reckoning, they all drank “quite a bit”.

28At one point, R.P. began inching closer - pressing his leg against her. To avoid this, H.J. moved up closer to K.G. She had her head on a pillow. K.G. rubbed her shoulder and back stating, “Awww . . . you’re so drunk.”

29R.P. then texted her trying to embarrass her by commenting, “You don’t know what you’re doing. You’re gonna end up in bed with K.G.”.

30H.J. could not remember whether she replied to R.P.’s text. They did not speak with one another. All three remained in each other’s presence in the same room together.

31R.P. then insisted that he was going to take her home because she was going to do something she would regret. She told him, “No.” She was fine. K.G. was not going to do anything to her. She did not want to go home.

32While K.G. was out of the living room and in the bathroom, R.P. began to yell at her, “You don’t know what you’re doing. I’m going to take you home.”

33When R.P. suggested he may leave, she questioned whether he should. She believed he had a lot to drink. He replied that he had stopped drinking a while ago.

34Upon K.G.’s return, the two men pulled her off the couch and brought her to the back door of the residence. R.P. carried her “bridal style” to his truck. He had one arm under her shoulders the other under her knees.

35She slumped down to the floor because she did not want to go. R.P. told her to get her coat and shoes on. H.J. put her shoes on by herself. Both men helped her with her coat.

36At one point, R.P. told H.J., “You are my responsibility. I have to take you home.”

37In K.G.’s presence, H.J. responded that she wanted to stay. However, K.G. did not say or do anything, although he was equally concerned about R.P. possibly driving in an impaired state.

38Outside the residence, R.P. was complaining to H.J. that she was embarrassing him – carrying on as she did with K.G. in front of him.

39When they were both seated inside R.P.’s vehicle, he began screaming at her. He was complaining that he was risking getting a “DUI” because of her.

40H.J. was just crying. She wanted to jump out of the vehicle, but she figured if she got out, he would just chase her down. She told R.P. that she wanted to die.

41When asked by Crown counsel whether she had her cell phone on her person during this sequence of events surrounding her departure from K.G.’s house, she acknowledged she did.

42R.P. headed toward her brother’s place, but then he took her down a road she did not recognize. They happened upon a RIDE¹ program. R.P. saw it and tried to avoid it by turning around.

43H.J. recalled that police did interact with R.P. in his truck after stopping him. She did not look in the officer’s direction. She thought that only one officer came to the driver’s window of his vehicle.

44R.P. exited and went behind the police vehicle “to do a breathalyzer”. H.J. remained in his truck. She thought he would “blow over”. She believed that he drank more alcohol than she did. She was surprised when he passed the test, and the officers let him leave.

45At this point, she explained that she “just froze”. She did not tell police about what had happened. She was in “panic mode” and did not know what to do.

46Thereafter, R.P. drove to the parking lot of a pet grooming business near where H.J.’s brother lived. R.P. stated, “I can’t take you home to your brother.”

47H.J. told him, “Let me out. I did this to myself. I’ll be fine.”

48R.P. replied, “I don’t trust your mental state. No. I’m going to drive you back to K.G.’s house.” He continued to chastise her about how she only thought about herself, and how she almost got him arrested.

49H.J. reiterated that she did not unlock the front passenger door to R.P.’s truck. She figured that if she tried to escape, he would just grab her.

50Upon their return to K.G.’s house, he put his arm around her and guided her to the guest room upstairs. She did not see K.G. again at that point. She assumed he had fallen asleep on the couch or had gone to his room.

51While with R.P. in the guest bedroom, she sat on the bed and took her sweater off. She was crying. She recalled that R.P. took his sweater off as well.

52They were next to one another. R.P. told her that she touched his penis. She did not remember doing that. Later in her testimony, she remembered telling him she had not. That is when he got on top of her.

53He began kissing her. He told her how hard it was not to have sex with her at that moment. He began feeling her up, by which she meant he was touching her breasts using his hands. She laid there like “a dead fish” while he dry humped her. All the while, they remain clothed. His penis was nevertheless making contact with her vagina.

54She believed the interaction lasted for 2 minutes. She waited until he stopped. She did not do or say anything.

55Later, he tried to spoon her. She moved further away. Eventually, she fell asleep.

56She had told him earlier that she just wanted to go to sleep. She did not want him to kiss her or to touch her. She did not remember him saying anything in reply.

57She got under the covers. She was wearing leggings and a T-shirt, but no bra. He was wearing jeans and a T-shirt. She did not ever recall him taking his clothes off.

58He woke her up every hour until morning came. He was trying to make her drink water. He would cuddle and kiss her while doing so. He told her he was scared she was going to die.

59She went to the bathroom, and he stood outside while she went in. This happened again on at least one other occasion. Both times she did not see K.G. anywhere around. Nor did she call out for him.

60In the morning when it was light out, she got up and put her sweater back on. She told him she remembered what had happened. He answered that he could not believe he had to babysit her. He thought she was going to die. That is why he was kissing and cuddling her.

61She said nothing on the ride home to her brother G.J.’s place. Again, she did not see K.G. before they left in the morning.

62R.P. did not get out of his vehicle upon arrival at G.J.’s. She entered as he was backing his vehicle out of the driveway.

63When asked by her brother’s partner how the evening was, H.J. told her it was fine. She then had a shower, laid on the floor for an hour and sobbed.

64In terms of her level of intoxication, H.J. believed she had six beers while at K.G.’s place. They smoked marijuana, one joint, perhaps half a gram, upon arrival. She recalled that she had also been consuming cannabis earlier in the day some hours before R.P. picked her up. By the time she left K.G.’s, she described herself as “pretty drunk, maybe a little sick, but not blackout”.

65She assumed that R.P. and she would simply stay the Saturday night of November 28, 2020 at K.G.’s house with one of them sleeping on the couch.

66The next day, Sunday, November 29, 2020, R.P. and H.J. began texting one another. He told her she knew that he would never do anything to hurt her.

67On the Monday, November 30, 2020, while at work, they went out for lunch together. H.J. had previously backed into the downspout of the eavestroughing at her brother’s house. They picked up a replacement part at a hardware store to fix it.

68During the drive, R.P. tried to hold H.J.’s hand. He repeated that he would never hurt her. She was “super flinchy”. She would not hold his hand.

69She explained that she went to the hardware store with him because they had preplanned the errand. She added that her anxiety was “so bad”. She could not even order food for herself.

70After work, he called her. He talked as though nothing had happened between them.

71She told him she was “not comfortable” around him. He made her feel as though she was overreacting.

72The next day, Tuesday, December 1, 2020, he asked to speak with her over lunch about what had happened. They drove to his house and sat in his driveway. Again, he told her he would never hurt her, but no one else would put up with her “mental issues”.

73When they returned to the workplace, H.J. could not stop crying. R.P. sent her home for the day after he texted with her boss, Mcpl. S. Her boss was aware of her history of having panic and anxiety attacks.

74In her head, she was thinking her relationship with R.P. was never going to end.

75She forgot her gym bag at work. R.P. hurt his hand in the shop, but he offered to drop it off to her. While he was at the hospital, H.J. asked him if he wanted her to bring him some food, but she testified she was not being genuine with that offer.

76Later, when R.P. arrived at her brother’s house with her gym bag, he walked into her bedroom and professed his love for her. He asked for another chance.

77She told him no and she walked him to the door. He tried to kiss her. She was crying when she told him there were not going to be any more chances. He still wanted “just one more kiss”.

78She nevertheless promised him that she would “think about the relationship”.

79When her brother, G.J., arrived home, he asked why the door was locked. She started sobbing and “word vomited” the whole story to him. He advised her to text R.P. and to tell him she would have him charged with harassment if he tried to maintain a romantic relationship with her. Only texts for work purposes would be permissible between them.

80R.P. reacted with a flurry of his own texts. In one of them, he mentioned her rank calling her “Pte. J.”. He told her in another that she would have to report half an hour early for physical training the next day. H.J. told R.P. via text that she spoke to her boss, Mcpl. S., and he confirmed that she would not have to go to physical training until 8 AM as per normal. She added that she did not feel comfortable being alone with R.P.

81H.J. believed that R.P. was using his rank to pressure her into answering him. He was also claiming to do a “welfare check” on her. She had never received such an order before. Being new to the military and afraid of superior rank, she thought this was an abuse of power. She was becoming increasingly aware that one of them would have to be moved from the current workplace.

82The next day, Wednesday, December 2, 2020, she reported for personal training at 8 AM. After speaking with her boss, Mcpl. S., and another Mcpl., R., she understood that she was being moved for her own good. She had no objection to it.

83The last time she heard from R.P. was via text. He told her he hoped she would get the help she needed. She then “blocked” him from being able to send her any more texts.

84The following day, Thursday, December 3, 2020, she spoke to the military police after her regular therapy session with Warrior Support. She then provided a written statement to police. Later, she was contacted by the National Investigative Service (“NIS”). She was interviewed by its members and gave to NIS all her text messages exchanged from November 27 to December 3, 2020 between R.P. and her. She did not have any contact at all with R.P. after she met with the military police.

85When asked by Crown counsel about her recollection of the evening of November 28, 2020, upon a review of her text exchange with R.P., H.J. did not remember “rubbing” K.G., nor “cuddling” him.

86She did tell R.P. the next day, November 29, 2020, that she was still hungover.

87She explained that she continued to see R.P. for a few days following the incidents at K.G.’s house because she felt guilty about breaking off the relationship. She thought they could just be friends.

88At the same time, H.J. never thought R.P. could or would ever leave her be. He would text her to that effect.

89During her examination in-chief, H.J. admitted to being dishonest with R.P. while texting on Monday evening, November 30, 2020. H.J. raised the subject of nonconsensual sexual touching. She texted to him: “ . . . when I told you I didn’t want it, it honestly scared me, every time I thing (sic) about it I want to cry”.

90R.P. responded with: “Really [H.J.] you know id never hurt you”.

91H.J. followed up with: “It has nothing to do with that . . . So when stuff like that happens it gives me anxiety.”

92R.P. replied: “Ok but u know thats not me.”

93H.J. agreed and answered: “Yes”.

94R.P. reinforced his point by exclaiming: “And I’d never ever do that im not a dirtbag u know that right.”

95Again, R.P. concurred with: “Yes”.

96H.J. testified that R.P. never shared with her his memory of what happened in the guest bedroom of K.G.’s house.

97Under cross-examination, H.J. confirmed that she voluntarily participated in the affair she had with R.P. She denied that she ever was attempting to seduce R.P. They were “just jokes” that she shared with him, and that she would have sent to anyone.

98H.J. explained that many of her texts were intended to get R.P. “to back off”. However, she agreed that when R.P. told her he loved her, she did not say that she did not love him too. To the contrary, she told him she loved him, but that was a lie.

99She admitted that one of her worst texts to R.P. was: “ . . . down the road when we are both doing better we can try again”, which she wrote on November 27, 2020. She did not mean it. She was not thinking clearly. She realized she gave him false hope by sending that type of text.

100Further, when she shared with him that she was falling in love with him, she stated that that was also a tactic intended to break off the relationship with R.P.

101She conceded that she fell so far into the lie, she was choosing to communicate to R.P. the opposite of what she was truly feeling. For example, she did not love him, but she told him she did repeatedly. She told him she missed him, when she did not. She thanked him for all he had done for her, when she believed he had not done anything for her. She described him as a “great man” and thanked him for being so, when he was not.

102After the seventh occasion upon which she tried to end the relationship, she recognized it was time to be truthful with R.P., but she was not. Instead, she could not bring herself to tell him she wanted no further communication or association with him. She never said to him, “Don’t text me; don’t call me.”

103When they went to K.G.’s house together on Saturday, November 28, 2020, she believed that R.P. and she were just friends at that point. She was still trying to end the affair.

104Over the course of their relationship, H.J. acknowledged that she was a daily cannabis user. She was also taking a prescription drug, mirtazapine. She was aware that she was not to drink alcohol while using the drug, but she did.

105While at K.G.’s place, she described herself to her cousin, C.H., via text at 6:45 PM on November 28, 2020 that she was “way to[o] fucking high”. She confirmed as well that she was way too drunk, when squarely asked by defence counsel about her level of intoxication.

106An hour later, when R.P. texted her to ask if she was okay, H.J. answered: “Yeah just fucked up”. When R.P. followed up with the query: “OK should I be worried”, her response was: “No just don’t let anything bad happen to me”. Despite this answer, H.J. testified that she was not someone who needs protection from others when she is drinking. Rather, when she is that high, she just wants to “veg out”.

107She affirmed for R.P.: “I’ll be fine as long as no one touches me”.

108She nevertheless conceded that her request not to let anything bad happen sounded more like an appeal to R.P. to “watch [her] back”.

109Later in the evening at 10:09 PM, R.P. suggested via text that H.J. was “kinda cuddling [K.G.]”. As a result, R.P. contemplated going home. H.J. responded that she was not trying to cuddle K.G. She was just sleepy and drunk.

110R.P. persisted that he was worried about her, and he wanted to cuddle her. H.J. responded that she did not want to, and she apologized for her unwillingness to be intimate with him. She testified that she was feeling guilty and is “a people pleaser”.

111He then advised her that he should drop her off at home. She resisted and told him she wanted to stay and hang out. She was good. She was having fun. She is an adult and capable of taking care of herself. She was sobering up. She was watching a movie. She assured him that K.G. would never hurt her.

112Her last text message to R.P. on Saturday, November 28, 2020, was sent at 10:44 PM. She denied cuddling K.G. after R.P. accused her of doing so. She communicated to him that she intended to finish the movie and then go to sleep.

113She agreed she was not discouraging in any way R.P.’s texting, nor telling him to stop messaging her on the night in question.

114The next text message she sent to R.P. was not sent until 4:21 PM the next day, Sunday, November 29, 2020. He had earlier sent to her that day a “goodbye letter” via text at 9:29 AM. He then followed up with several texts thereafter expressing his desire to have “a real talk about the bullshit” she put him through last night and his concern about her welfare. She told him: “I’m okay”.

115She agreed that she did not say she was upset or angry about what he did to her the previous night. She did not tell him to stop communicating with her. She did not tell him that he felt he was harassing her. She told him she was hung over. That was the truth.

116She acknowledged that she agreed to meet with him the next day, Monday, November 30, 2020. They did not change their plans to buy a replacement waterspout for her brother’s eavestroughing. She testified it seemed odd to ask him for help in the wake of having been sexually assaulted by him.

117They took their lunch hour together. Their friendly banter continued via text that day. H.J. agreed she was not feeling bothered or harassed. Nor did she suggest to R.P. that she felt violated.

118She did not tell him she wished their communications to cease. Nor did she tell him she did not love him. To the contrary, she indicated her desire to help R.P. with his feelings and getting over her.

119On Tuesday, December 1, 2020, at 4:18 p.m., R.P. texted H.J. to say: “I’m serious by the way - my days are way better with u”. She responded: “I’m glad”.

120When cross-examined about whether she was actually glad, she said she was not. She did not mean it.

121She went on to explain that she was not really given a choice in the relationship she shared with R.P. He was “manipulative”. He had a way of making her feel guilty about things, so that she would want to apologize for what made him upset.

122At 9:14 PM, H.J. sent a text to R.P., which read as follows:

“This is your first and final warning. If you do not stop messaging, calling me or talking to me at work about anything other [than] work it will be harassment.”

123H.J. confirmed that she had never communicated anything like a warning to R.P. before. It was the first text she sent to him telling him to stop communicating with her.

124She reiterated that they both had told each other that they love each other. She added that she thought she did love R.P., but she felt trapped. It was kind of like “Stockholm syndrome”, but not quite that extreme.

125Fundamentally, H.J. acknowledged that she voluntarily had an affair with R.P. He was “super nice” and “sweet”. He treated her well when they were together. However, when she was alone, she felt guilty about the adultery.

126H.J. was aware that R.P. was not her immediate supervisor. That was only so when it came to “OJT”. She was clear that her own boss, Mcpl. S., told her she did not have to do anything with R.P. in future.

127Despite the half a dozen or so breakups, H.J. testified that she agreed to go to K.G.’s on the Saturday night, November 28, 2020. She knew that she intended to smoke marijuana and drink alcohol while there. However, she was adamant that she did not think it would be a precursor to getting back together with R.P. She figured that because K.G. would be there, she would be safe.

128She did not believe that K.G. knew about the affair between R.P. and her.

129K.G. was the most senior military member amongst the three of them at the Saturday, November 28, 2020 get-together. However, he was shy, mousy, and shorter and slighter in build than R.P.

130H.J. acknowledged when she gave her written statement to the military police, she mentioned that she was drinking alcohol, but not that she was smoking marijuana. Nor did she admit to smoking cannabis when she was later interviewed by NIS.

131Additionally, she did not tell police about how her use of antidepressant medication was contraindicated with alcohol consumption.

132She conceded that she told police she had 6 tall boys and possibly a Bud Light. She agreed that this was the equivalent to 9 regular beers she had drunk in addition to the marijuana she consumed and the prescription medication she had taken.

133She recalled that she was wearing a T-shirt she did purchase from Walmart that read: “This guy needs a beer”. It also had a “two thumbs up” insignia upon it.

134H.J. acknowledged it was her suggestion to play the King’s Cup, drinking, card game. She was aware that as the game progressed, she was becoming more and more impaired by alcohol. She probably drank the most of the three participants.

135She felt that she was “pretty drunk” at the time the game was played. She agreed it was not a wise idea to be drinking alcohol while taking her prescription medication. However, it did not take much for the intoxicating effect of marijuana to flush out of her system.

136By the time she laid down on the couch, she was in “rough shape”. Earlier, while she was sitting on the couch, R.P.’s leg was touching hers. She moved away.

137She told K.G. that she was sitting beside him to avoid R.P.

138She did not remember if K.G. asked to rub her back. She did not ask him to do that. He rubbed it without her consent.

139When confronted about the expected version of events that K.G. would give when he testified, and specifically that he would testify that she touched him without his consent, making him feel uncomfortable, she agreed that she did not ask if she could touch him.

140She reiterated that she did have her cellular phone on her person. She was sending texts over the course of the night. It was working and she did not text her brother, or whomever, to notify that she was in a predicament. Nor did she ever think to call a cab.

141She agreed that R.P. announced in the presence of K.G. his intention to take her home. K.G. was reluctant to see R.P. leave, because he believed R.P. had been drinking. R.P. assured him he could drive.

142H.J. was certain at this juncture she informed K.G. she did not want to leave. Nevertheless, both R.P. and K.P. participated in forcing her to leave. She “believed” they pulled her up off the couch. She later slumped to the ground at the door. They then helped her to put her coat on.

143In terms of how she described her exit from K.G.’s house to the military police, she conceded that it is possible she misdescribed what occurred. She acknowledged that she was “drunk and high”. It was not memory loss on her part due to the passage of time. She simply was not completely sure how she got to K.G.’s back door to leave.

144As she put it, “I was stressed out and upset when I gave my statement to the police.”

145She was not certain if she told both R.P. and K.G. that she did not want to go while she was being escorted to the exit. It was possible she did not say anything, because she was impaired. Indeed, she added that she did not think K.G. would go along with allowing her to leave if she did not want to. She believed that K.G. would have helped her.

146When carried “bridal style”, she went limp in part to resist R.P, and in part due to alcohol and drug consumption. She acknowledged that being carried is better than being dragged. She did need assistance.

147Indeed, even if she told police that on the way out of K.G.’s house, she told him that she did not want to leave, she was not certain that she had in fact expressed her disagreement with leaving.

148Furthermore, she was not sure how she got off the couch or to the back door. Nor was she sure what she said after she got up from the couch on the way to the back door and before she arrived at R.P.’s truck.

149At no point did she tell K.G. that she felt afraid or uncomfortable, even though he was the type of person who would act if she needed help. She did not verbalize anything to him or R.P. that she did not want to leave.

150She acknowledged that over the entire time frame during which she was at K.G.’s house until she went home the following morning, she did not use her phone to call a friend or text someone for assistance. Nor did she call 911, her brother, or her brother’s partner.

151She agreed that her cell phone had email, text and telephone capabilities. She did not make any calls for assistance. She did not attempt to cry out or indicate her distress to anyone.

152She agreed that she had been in R.P.’s truck many times in the past. She did not tell him he was taking her against her will, nor that he was confining her. She recalled telling police that she could not really walk on her own. She was too drunk. She was feeling dizzy and sick.

153She understood that the doors to R.P.’s truck lock automatically when it is set in motion. She could have opened them. However, she hastened to add: “You never know what to do in those situations”.

154She recalled R.P. yelling at her in his vehicle. She had been suicidal in his presence before. He took her to see someone at that time for medical assistance. When she threatened to jump out of his car, he appeared concerned. She did not ask to be let out prior to threatening to jump. She was “really suicidal”.

155She acknowledged that she may have touched K.G. inappropriately earlier in the evening. She remembered R.P. telling her she was disrespecting him, and getting herself into a mess with K.G.

156She believed R.P. was bringing her home. She had no recollection of stopping at a convenience store, while R.P. went inside. She did not recall if she was left inside his running vehicle.

157Accordingly, she agreed she did not seek help from the store clerk, nor call 911 while R.P. was gone, nor cause a scene to get help from police. Simply put, she had no memory of stopping if they indeed had.

158She was too drunk and high to drive – even to walk without assistance.

159When they stopped at the parking lot of the pet grooming business, she remembered telling him, “I fuck everything up. I wish I was dead.” It was a short distance from her brother’s house. She did not remember him putting a hand on her or grabbing her to prevent her from leaving, but she did ask him if she could.

160She told the military police in giving her formal statement that she hoped he would get an impaired, when they were stopped at the RIDE program. If he had, she would be free.

161With R.P.’s decision to return to K.G.’s place, H.J. acknowledged that she did not tell him she did not want to go there again. She did not recall seeing K.G. again, but it was possible she did. She did not know where K.G.’s bedroom was. Again, she did not call anyone to seek assistance, nor did she understand why she did not call a cab to go home.

162As H.J. put it, “I was tired of making my problems other people’s”.

163She did not know how long they were at K.G.’s place before they went into the guest bedroom together. She did not object to doing so.

164She remembered R.P. helping her to drink water. She drank it because she was dehydrated and disoriented.

165She laid on the bed, as did R.P. Her leggings remained on, her T- shirt as well. R.P. remained clothed too.

166She was falling asleep, and he would wake her up to drink. Even though she told police she was staring at the wall all night, that was not accurate.

167It was drawn to her attention what, in fact, she had earlier said to police about her inability to sleep. In the transcript of her statement given to police, she explained as follows:

“The whole night I just stared at the wall hoping he’d fall asleep, so I could run downstairs to tell [K.G.], but he never fell asleep.”

168She acknowledged that she could have called 911 at points during the night. She agreed she had the opportunity to text K.G., but did not.

169She recalled that he told her she touched his penis. She did not remember doing that.

170She told him not to kiss her. He did not use his tongue, but he was sucking on her neck. She just laid there and cried. She let him do whatever. She laid there and let it happen. She did not push him away. She did not tell him to leave the room.

171She remembered he touched her right breast at the beginning of their night together in the guest bedroom. She did not know how long the touching lasted. To her, it felt like an eternity. It was very spontaneous.

172He “dry humped” her. It did not go on for the whole night when he was waking her up to drink water, but he would kiss her on those occasions. The kissing was unwanted.

173Further, when she wanted to go to the bathroom, he did not prevent her, but he would stand outside the door. She did not tell the police about that. She forgot.

174She did not remember how many times she went to the bathroom during the night. She did not know if it was five to ten times, or if there were times when she was left to go unaccompanied by R.P.

175Defence counsel referred her to another portion of the transcript of her statement to police where she said:

“I kept going to the bathroom when I thought he was asleep. He would ask me where I was going.”

176She had knowledge thereafter that there were some occasions when he remained in the bedroom and she could have gone downstairs. She agreed she could have called K.G., her brother, the police or another friend from the bathroom, where she could have had a private conversation, but she did not.

177Lastly, she agreed that in the lead up to Saturday, November 28, 2020, the night she spent at K.G.’s place, she was “getting high a lot”. On the quality of her recollection of material events, she explained that she remembered the main things between blackout periods. She did not know that the possible side effects of drinking alcohol while taking mirtazapine was memory loss and blackouts.

178She was clear in giving her evidence that she was not upset about being removed from the workplace where she had been assigned with R.P., notwithstanding on an earlier occasion, when she complained about being harassed by a coworker, he was the one who had to leave the unit.

179When she spoke to her boss, Mcpl. S., on Wednesday, December 2, 2020, she did not mention that the harassment she was feeling at the hands of R.P. had a sexual component to it. She conceded that it was relevant, but added:

“You know how hard it is to talk about that kind of thing?”

180When confronted about what R.P.’s version of events would be, if he testified regarding the night spent at K.G.’s place, she denied that:

a) she kissed him while they were in the guest bedroom,

b) there was only one such kiss,

c) he did not put his hand on her breast, and

d) he did not “dry hump” her.

181H.J. reaffirmed that she did not have any recollection of touching R.P.’s penis. Nor did she remember him going to sleep on the couch downstairs.

182Under re-examination, H.J. reflected that she must have been in the parking lot with R.P. at the pet grooming business when she spoke of “fucking things up”, and how she “may as well kill [herself]”. When she brought this up, he did not offer to take her to a hospital or to Warrior Support, nor in the days following.

183She did not remember trying to open R.P.’s truck door while the vehicle was moving.

184Further she recollected him telling her that she was his responsibility, and he was not letting her walk home to her brother’s because it would not be good. G.J. would be “pissed”.

185She was certain that she did tell him she wanted to leave while they were in the parking lot, but she did not remember trying to exit his vehicle.

186She explained as well that she was terrified after issuing the “first and final warning” to R.P. when she arrived at work the next day, Wednesday, December 2, 2020. To her, it seemed the decision to move her had already been made. Her bosses, Mcpls. S. and R., were in an office waiting for her. She was informed she was moving back to 2 Service Battalion.

187The following day, Thursday, December 3, 2020, in the new workplace, she told her bosses about the sexual aspect of her relationship with R.P., after receiving assurances from them there would be no impact on her career. She then went to the police because she had not done anything wrong.

G.J.:

188When H.J.’s brother, G.J., testified on May 31, 2023, he had been a member of the military for 12 years. Like his sister, he is an EO Tech. He is seven years her senior.

189By age 19, G.J. was stationed at Garrison Petawawa. He was not sure when H.J. enlisted, but he recalled her coming to live with him in the spring of 2020. She stayed until January 2021.

190G.J. also knew the accused, R.P. Their paths had crossed during their military careers. They had a friendship. They would play pool together and visited occasionally at each other’s houses. G.J. hired R.P. to plow his driveway.

191G.J. and R.P. were still friends when H.J. moved to Petawawa. Indeed, G.J. understood R.P. to be his sister’s boss while she was on OJT.

192G.J. never saw R.P. and his sister going out to socialize. He did not think he ever asked R.P. if he was in a relationship with H.J. They have never spoken about what happened to H.J.

193G.J. described his sister as suffering from “bad anxiety”. If she were “freaking out”, she would go to R.P. and he would calm her down.

194During the summer of 2020, G.J. and his spouse asked H.J. if there was more to the relationship she had with R.P. She denied that there was until she broke down and told G.J. the evening that the “first and final warning” was issued.

195At the time she disclosed the affair to him, they were in the kitchen together. He could tell something was bothering her. She looked scared. She had a full breakdown. He has seen her in the past range from “hyperventilating” to having a “full on panic attack”. He wanted to help her.

196He was aware that. R.P. brought H.J. to get professional assistance for her mental health. G.J. did not consider himself to be “really good at the whole consoling thing”.

197G.J. understood that H.J. needed help because she had tried to break off the relationship on her own. Every time she did, R.P. would “pull her back into it”. G.J. could see it in his review of the text exchange as between them.

198After the warning was issued, R.P. began “blowing up her phone” - sending H.J. “pretty crazy” text messages and trying to call her. He referred to her by her rank. He was a corporal. She was a private. He wanted her to report to his office at 7 AM. This was earlier than what she would normally have to report for physical training.

199G.J. advised his sister not to answer. He told her, “Don’t message no matter what”.

200G.J.’s spouse and he recommended to H.J. that she should go to the police. She believed she did so the week after the “full and final warning”.

201At the time H.J. was involved in a relationship with R.P., G.J. knew his sister liked to smoke marijuana. He had concerns about her level of consumption, but he took no steps to have it addressed. She was “not a big drinker”.

202In hearkening back to when his sister went with R.P. to K.G.’s place, G.J. thought that the original plan was for his spouse or him to pick her up. Neither did. G.J. thought that H.J. texted his spouse to say that she was okay, and she would spend the night at K.G.’s place.

203G.J. did not know when she returned home the next day.

204Under cross-examination, G.J. confirmed that on more than one occasion, his sister had lied to him about whether she was involved in a relationship with R.P. G.J. and his spouse were simply acting “on hunches”.

205G.J. was not aware of when his sister, H.J., began to have struggles with her mental health, or whether she was taking any medication to address the condition. He knew she was seeing a therapist. R.P. appeared to be the layperson upon whom she relied for support in this regard. Indeed, G.J. remembered going to R.P.’s home on one occasion to discuss H.J.’s mental health. G.J. appreciated what R.P. had done for his sister.

206G.J. was not aware of any threats his sister made to kill herself during the night she spent with R.P. at K.G.’s place. Nor did G.J. know that R.P. and H.J. had gone to lunch in the days following their stay at K.G.’s house, nor that R.P. had visited H.J. in G.J.’s home thereafter.

207G.J. agreed that H.J. had been somewhat “selective” in deciding which texts to show to him before the “first and final warning” was delivered to R.P.’s.

208G.J. was aware of a prior complaint his sister had made about a co-worker, who was then removed from the workplace. However, to G.J.’s understanding, it was a nonsexual matter.

K.G. :

209When K.G. began giving his evidence on May 31, 2023, he had been in the military for almost 14 years. His trade was as a “vehicle tech”. His unit was 1 Royal Canadian Regiment.

210He offered that he lives alone. He knew R.P. as a co-worker. They had a relationship outside of work, but they did not hang out “that often”.

211K.G. recalled an instance where he invited R.P. over to his place. R.P. brought. H.J. with him. They had never been to his house before.

212In terms of their rankings at that time, K.G. was a Mcpl, R.P. a Cpl., and H.J. a Pte. K.G. explained that he had no supervisory role over H.J., whereas R.P. was under him in the direct chain of command.

213K.G. was not aware of any rules respecting who can socialize with whom in the military. The culture he came to know was that you keep your personal life at home and your work life at work.

214K.G. remembered that he met H.J. in the workplace. He thought it was just a few days before he invited R.P. to a barbecue at his house. R.P. asked the day of the barbecue if he could bring H.J. with him.

215K.G. described R.P. as “a close buddy at work”. K.G. understood that R.P. was helping her “with her mental state”. K.G. did not ask R.P. who she was to him or why he wanted her along.

216K.G. and R.P. had spoken before at work about H.J.’s mental state. K.G. understood that R.P. was trying to help her and trying to find help for her. Indeed, K.G. knew that, on one occasion, R.P. had taken H.J. to see a clinician.

217Before he hosted the barbecue at his house, K.G. recalled an occasion where H.J. came to speak to him “on the floor” to inform him she was not feeling well. It was random. He told her to go see someone about her mental health.

218On the evening of the barbecue, K.G. thought that R.P. arrived with H.J. around 6 PM. K.G. was having a beer outside. He believed that H.J. was drinking too. R.P. had one. To K.G.’s recollection, no one was using marijuana.

219When the food was ready, they went inside and ate. H.J. and K.G. continued drinking. R.P. was still on his first. K.G. seemed to recall that H.J. had brought a six pack with her.

220After they finished eating, they sat around on his couch, a U-shaped sectional, to watch a movie and to play video games. R.P. was on his right side. H.J. was between them.

221H.J. and K.G. began smoking marijuana out of a bong, which belonged to K.G. R.P. did not partake.

222At a later point in time, H.J. stopped playing video games. R.P. and K.G. continued.

223K.G. believed that H.J.’s level of intoxication was much higher than his. She was behaving in an incoherent manner. She was slurring her words and mumbling. He did not bring it up with her, nor discuss her state with R.P.

224K.G. went upstairs to go to the bathroom. He was feeling intoxicated too. When he returned downstairs, R.P. and H.J. were getting ready to leave. There had been no prior discussion about his guests leaving.

225R.P. was helping H.J. get her shoes on and things together to go out the front door. She was wobbly, having trouble standing and falling into walls.

226K.G.’s understanding was that R.P. intended to take her home. K.G. had no concern about R.P.’s state of intoxication, nor H.J.’s while in R.P.’s company.

227K.G. testified that he had no issues with H.J. that evening, other than some unwanted touching. She was rubbing her hands on his chest and using her feet to touch his legs. He explained that he had an injury on his chest, and she was asking him if it felt better. He added that it did not. When squarely asked by Crown counsel about his comfort level with what was occurring, he confirmed that H.J. and he are both adults.

228After this happened, K.G. got up from the couch and moved to the other side of R.P. K.G. could not articulate why he did that. He did not say anything to either H.J. or R.P. about why he moved.

229K.G. stated that R.P. was present in the room to see what H.J. was doing to him. He believed that R.P. was giving him a look of consternation at the time he was being touched by H.J. R.P. looked as though he did not approve, but both K.G. and he did not discuss between themselves what had just happened.

230Nevertheless, K.G. felt that R.P.’s mood changed thereafter.

231As R.P. and H.J. exited, she had her arm around his shoulder, and he had his arm around her waist. K.G. did not assist in holding her up. He was simply following them along to the parking lot. R.P’s truck was only roughly 20 feet away. K.G.’s was closer. only some 10 feet from his door. He was going to it to retrieve his telephone charger.

232K.G. did not see them get into R.P.’s truck. He returned to his house where he sat and watched TV. He consumed more cannabis. His memory of the evening ended there.

233He recalled waking up in his bedroom upstairs. He got up to take his dog outside. When he did so, he did not see R.P. or H.J. at all that day.

234A few days later, H.J. texted him to say, “Something happened”. She did not mention that she was being harassed, nor that she had been sexually harassed or assaulted. He told her via text he would follow up.

235The next day, he asked R.P. about what had occurred between H.J. and him. K.G. received R.P.’s “side of the story”.

236K.G. testified, “I didn’t do anything”. He did not speak further to H.J. again, nor text her.

237The military police contacted him shortly thereafter. They asked him to provide a statement. He obliged.

238It was only “after the fact” that K.G. learned of the intimate relationship which existed between R.P. and H.J. It was R.P. who told him about it.

239K.G. confirmed that he was never alone with H.J.

240Under cross-examination, K.G. acknowledged that he gave his statement to police on Friday, December 4, 2020. He said to the police, “She told me she wanted to crash her truck into a tree.”

241K.G. accepted that he had received a text from H.J. a couple of years ago regarding her mental health. However, he simply did not remember the details of it while testifying, but it probably was something like what he told police she had said to him at the time. There were other random texts as well which he would get from H.J. to the effect of: “Hey, what’s up?”, and “I’m feeling lost.”

242He did not do anything about the situation because he believed R.P. had already taken H.J. to see someone for help with her mental health.

243K.G. was not aware of any medication that H.J. was taking at the time to assist her.

244Regarding intimate relationships in the workplace, K.G.’s understanding was that it was permissible as long as one partner was not a “direct subordinate” of the other. He agreed there were probably rules and regulations that govern such conduct.

245Hearkening back to H.J.’s and R.P.’s moods when they arrived at his house for the barbecue, K.G. recalled them being “fine, happy, and joking”.

246Once they were at his place, K.G. noticed that H.J. was drinking steadily. He was too, whereas R.P. was sober.

247K.G. described his state and H.J.’s as “a bit drunk and a bit high”, but comparatively, he was much better off than she was in terms of their sobriety.

248He agreed that smoking marijuana through the mechanism of a “bong” delivers a “tougher punch”.

249He went on to state that he did nothing to invite any touching from H.J. He characterized himself as “a bit of an antisocial person”. He agreed that he did not tell H.J. not to touch him in the manner she was. Nor did she ask him if she could touch him as she was doing.

250He explained that she extended her feet out to make contact with his leg. He did not recall ever saying to her, “Oh you’re so drunk.”

251He denied that he laid hands on her at any point. He did not touch her, but for maybe a leg graze. He simply moved away from her. He did not try to snuggle up to her or lie beside her.

252His interpretation of R.P.’s demeanour upon witnessing H.J. touching him was that R.P. was “disappointed in her”.

253K.G. stated that if he believed H.J. were unsafe, he would have done something to help her. She never suggested to him that she was fearful. She did not indicate that she was uncomfortable or in any danger. She did not tell him that she did not want to leave, nor did her body language convey that she was resistant to leaving his home. He did not hear her say, “I don’t want to go”.

254She was unsteady on her feet and stumbling, but she did not express any desire to stay at his home. If she had, K.G. would have let her. He pointed out that, in fact, he had two spare bedrooms.

255He did not try to persuade R.P. and H.J. to stay. In short, K.G. had no problem with them leaving.

256If R.P. and H.J. returned to his home after they left, K.G. did not hear them. He thought his 130 lb. Italian mastiff breed of dog would have let him know if someone were at his door.

257He reiterated, if they came back to his house, he was not aware they were there, even though his bedroom is located “two strides away” from the upstairs guestroom.

258In terms of the closeness of the relationship K.G. had with R.P., as opposed to H.J., K.G. offered that he talks to R.P. all the time, whereas he would say the occasional hello to H.J. at work.

259K.G. noticed that H.J. tended to follow R.P. around “like a shadow”. He pointed out that R.P. is in charge of all OJT’s in the shop.

260Under re-examination, K.G. clarified that he checked on R.P.’s work because R.P. is in his section. Insofar as H.J. may have been a distraction for R.P., K.G. offered that, so long as R.P. got his work done, he had no problem with the attention H.J. paid to him.

261Regarding the post-barbecue conversation R.P. had with K.G., K.G. confirmed that at that point, R.P. disclosed that he was involved in an intimate relationship with H.J.

Cst. Erin Corriveau:

262When Cst. Corriveau testified on August 5, 2022, she had been a member of the Ontario Provincial Police for roughly 16 years.

263On November 28, 2020, she recalled that her fellow officer, Cst. Bittner, and she were in full uniform with a marked cruiser conducting a RIDE program, when they pulled R.P. over in his vehicle at 11:26 p.m. on Len Hopkins Drive in Petawawa. R.P.’s vehicle was approaching the RIDE stop, but then turned around, which raised the suspicions of the officers.

264As a result, the officers pursued the vehicle to check on the sobriety of its driver – later determined to be R.P. Cst. Corriveau demanded that he provide a sample of his breath into an approved screening device. He did so and it produced a “minimal reading”.

265Cst. Corriveau was uncertain about the presence of a passenger. If there was one, she did not ask the person to identify himself or herself.

266Under cross-examination, Cst. Corriveau indicated that she could not recall if there was a female passenger in R.P.’s vehicle with him when he was pulled over. She would be watching the movements of all occupants in R.P.’s truck to ensure nothing untoward was occurring and no one was in danger. If she noticed any sign of distress, she would have investigated further. She saw nothing to give her any concern.

267She added that as a police officer, she is trained to look for and recognize dangerous situations, but nothing stood out for her.

268If she had any concerns, she would have made more notes in her duty book.

269Assuming there was a female passenger in the vehicle with R.P., she would have spent roughly 20 minutes on the side of the road waiting for R.P.’s sobriety to be checked before he was permitted to leave the scene of the traffic stop.

270Cst. Corriveau was able to confirm that R.P.’s blood alcohol concentration at the time of the stop was 26 mgs. of alcohol in 100 mls. of blood. She added that this reading is below the “Warn” range and very near sober.

R.P.:

271When R.P. began giving his evidence on June 5, 2023, he was 34 years old. He first joined the military in June 2006. He holds the rank of corporal. He is known as a “vehicle tech” in his trade. He is assigned to the maintenance building of 1 Royal Canadian Regiment at Garrison Petawawa.

272He is married. His wife and he have three children aged 15, 14 and 11.

273He is also Indigenous with full status. He practises to this day some of the traditional ways.

274He is well acquainted with his direct superior, K.G., as a coworker and a vehicle tech as well.

275R.P. was also the OJT facilitator within his unit. H.J. was a “QL4” or trainee EO tech in his shop. He was responsible for overseeing and tracking her progress in accomplishing various tasks and gaining “certificates”, as she learned the practical skills of her trade.

276Even though Mcpl. S. was “her boss” and responsible for signing her certificates, R.P. maintained that, strictly speaking, she was not in his chain of command. Notwithstanding, at the material time, he was a corporal, and she was a private.

277R.P. believed that “fraternization” was permissible amongst military members while in garrison, but not “on course”.

278R.P. recounted that H.J. and he became friends after she was assigned to his unit on an OJT rotation. Initially, he would find her drifting towards his area of the floor and he would tell her to return to her own. He later acquiesced and began an intimate relationship in October 2020 with her, after she had been on the job in his shop for roughly two months.

279At that point in time, R.P. was residing with his parents. His wife and he had separated. He was feeling depressed. He was helping H.J. to cope with her mental health struggles as well. On two separate occasions, he brought her to Warrior Support to seek help for her.

280Thereafter, as R.P. put it, “It went from there.” To his mind, she pursued him. She told him, “I want to be with you”. In the beginning, he asked her to stop, but after a while, he gave in. He stated he had no concern about an affair with someone of lesser rank.

281He did not tell his wife about it. He did not think the relationship with H.J. was going anywhere. He was embarrassed.

282When questioned about his awareness of the extent of H.J.’s mental issues, R.P. testified that she was suicidal and had a plan in place for killing herself.

283On that occasion, R.P. brought H.J. to Warrior Support. He spoke to a fellow corporal in the reception area. R.P. gave the corporal “trouble”, because he was reluctant to allow H.J. to see a clinician. Ultimately, the corporal relented and, to R.P.’s knowledge, H.J. was allowed to speak with a qualified mental health professional.

284R.P. went on to explain that he has buried four of his close buddies at 1 Royal Canadian Regiment. Consequently, he takes matters of mental health very seriously.

285Thereafter, R.P. would occasionally take H.J. to counselling. She had “bad anxiety”. She would have panic attacks multiple times per week. She would freak out and be unable to continue working on the floor.

286He knew she was taking some form of antidepressant/antianxiety prescription medication. She asked him to provide her with reminders so that she would take it regularly. He believed the medication contained a warning as to side effects if combined with the consumption of alcohol.

287R.P. found he was helping H.J. with her mental health constantly. She would follow him around “like a puppy dog”. If she needed support, he would offer it, but as he stated, “I’m not a psychologist”.

288He believed the relationship they developed stemmed out of her “suffocation” of him. She was around him so often, it became comfortable for him.

289R.P. added that he was nevertheless responsible for his own actions. In retrospect, it was not “a wise idea to have a relationship with a person with mental health difficulties”.

290Eventually, they would hang out, make plans, share meals and talk of moving in together. He believed he fell in love with her. He thought she loved him too. They told each other they did regularly, if not daily.

291On the other hand, there were breakups as well. The relationship was very much “off and on”. On at least two occasions, R.P. remembered, he tried to end the affair. On others, she initiated it. When she did, R.P. responded to her that it would not be an easy thing for him to accept. They were in a relationship. He loved her and cared for her. It was not going to be easy.

292On Friday, November 27, 2020, R.P. received a text from H.J. informing him that, after a session with her therapist, she believed it was a bad idea for her to be in an intimate relationship of any sort. He asked for confirmation from her that they were “done”. She told him they were. It was the only way she could heal.

293Initially, R.P. appeared to accept H.J.’s decision, but he felt “hurt” and was still “very attached” to her. He would miss her.

294She texted to him that she would miss him too. She ventured that “down the road when we are both doing better, we can try again”.

295R.P. testified that he was both surprised and heartbroken. They had been in each other’s company the night before. He did not understand.

296Later, his dismay turned to upset and anger. He told her she was too immature for a serious relationship. He was struggling and lashing out. He wanted stability.

297The next day, Saturday, November 28, 2020, after a telephone conversation together, they decided to hang out. It was agreed that R.P. would pick H.J. up and take her to K.G.’s place with him.

298R.P. explained that the “breakup status” had not changed when he went to collect H.J. at her brother’s house around 5 PM. He still wanted to be around her. He commented that she had acted like nothing happened. They were always “on the fence, off the fence”, but he was hoping they would get back together.

299They arrived at K.G.’s place around 5:20 PM. As she entered his vehicle, she took a 24 pack of Busch beer with her, he thought. He brought a 12 pack of Miller with him to K.G.’s place.

300There were only the three of them, K.G., H.J. and him, at the barbecue. R.P. recalled that they joked about what was written on H.J.’s T-shirt, something to the effect of: “Ready for the night”. R.P. added that he had not been around H.J. before when she was drinking.

301R.P. emphasized that he is a “social drinker”. He did not intend to spend the night at K.G.’s. He did not know what H.J.’s plans were, nor her “end play”.

302Upon arrival at K.G.’s, R.P. described her as “super giddy”. He had seen her under the influence of marijuana on at least 15 prior occasions. He recalled that when she got into his truck at her brother’s place, she commented that she just came in from smoking one. He did not know if she had been drinking alcohol too.

303In terms of the extent of his relationship with H.J.’s brother, G.J., R.P. indicated that G.J. had been to his place 5 or 6 times. Equally, G.J. had been a guest at R.P.’s place as well. When R.P. and G.J. visited with one another, seldom was H.J. around.

304Over the course of the relevant time frame, November 28-29, 2020, R.P. was driving a Dodge Ram Eagle pickup truck. He noted that the automatic door locks would engage at roughly 40 km/h, but notwithstanding, if you use the interior handle, the doors can still be opened. In other words, you cannot lock a person in.

305He estimated that on greater than 50 occasions in the past, H.J. had been in his vehicle.

306At K.G.’s house, and as arranged prior to arrival, hamburgers were on the menu. While in the backyard preparing them, H.J. and K.G. shared a marijuana joint. R.P. did not partake in it, but he did have a beer.

307H.J. and K.G. were drinking beer too. By the time the burgers were ready, they were on their second or third one. R.P. assessed both as being “buzzed” and having a good time.

308Later, they played video games and thereafter watched a movie. In the midst of doing so, R.P. gave evidence that H.J. made him promise he would not let anything happen to her. He assured her he would keep her safe.

309Over the course of playing video games, R.P. stated that he was sober. He perhaps had grabbed a second beer. He noted that there were four cans in front of H.J. on the coffee table. He thought that K.G. was on his fifth or sixth.

310He observed that H.J. was on her phone the entire night. She was also getting a bit drunk.

311She then suggested that all three of them play a card, drinking game called King’s Cup. The punishment for a misplay by one of the participants is to chug from one’s container of alcohol.

312R.P. explained that he does not enjoy overdrinking. He was being cautious during the game. H.J. and K.G. were not. They were drinking significantly more than he was. However, while playing King’s Cup, R.P. did not have any concerns for the wellbeing of either H.J. or K.G. They were all just having a good time.

313While seated on the couch in K.G.’s living room, R.P. remembered that H.J. was in the middle, he was to her right, and K.G. to her left.

314R.P. added that it was “the worst night of [his] life”. For that reason, he remembered vividly what had occurred. He has had nightmares since its occurrence.

315At one point, R.P. saw H.J. sticking her left hand up K.G.’s shirt and feeling his chest. K.G. was moving around trying to nudge her away.

316R.P. saw H.J.’s hand on K.G.’s bare skin as she lifted his shirt. She was rubbing his chest and ribs. While she was doing so, K.G. gave R.P. a look of dismay. The rubbing went on for what R.P. estimated to be roughly two minutes before K.G. got up and moved closer to him on the couch.

317R.P. did not hear any conversation between H.J. and K.G. before she touched him.

318When K.G. went to the bathroom, R.P. spoke to H.J. about what she was doing to K.G. R.P. had earlier texted her about rubbing K.G. and “getting [herself] into a big mess”. He told her she was “trashed”.

319Earlier in the evening, she had texted to R.P. that she was “just fucked up”. R.P. asked if he should be worried about her. She replied, “No just don’t let anything bad happen to me.”

320R.P. offered if she wished for him to take her home. She responded, “I’ll be fine as long as no one touches me”.

321She denied that she was trying to “piss [R.P.] off”, or that she was trying to cuddle K.G. R.P. testified that he was wondering if it was a game she was playing to try to make him jealous. R.P. elaborated that he was being “firm” and “direct” with H.J. He was “hurt” by her conduct. He contemplated leaving.

322R.P. appreciated that he did not have control over who she was interested in. Yet it was hard for him to watch H.J. touching another man.

323He went on to explain that he felt as though he was caught between a rock and a hard place. The person he loved and cared for, he believed, was going to get herself into trouble. She was “sexually assaulting someone”. He was torn. He felt he had a duty to her and to his best friend, K.G.

324He told K.G. upon his return from the bathroom that H.J. and he were heading out. She needed help.

325K.G. expressed some concern about R.P.’s ability to drive. R.P. had no concern in that regard. He felt clearheaded. He only had two alcoholic beverages the entire night.

326To R.P.’s mind, H.J. was in full agreement to leave. She did not express any lack of desire to leave. She was unsteady as she made her way to the door. She asked for help in getting her boots on. K.G. assisted her with her coat.

327R.P. guided her, but he did not carry her outside. She walked on her own, although she was stumbling. He had a hand on her elbow steering her to his vehicle. R.P. denied that he dragged her, carried her or picked her up in a “wedding carry” to bring her to his vehicle.

328What she was saying to him while they walked was “mumbly”. She was in no condition to drive. She could barely “operate her own legs”.

329K.G. accompanied them part of the way to his own vehicle to retrieve his telephone charger.

330Once at R.P.’s truck, H.J. joked that he had her back. She opened the front passenger door. She grabbed the overhead handle to assist herself with getting into the vehicle. He then closed the door behind her and walked around to the driver’s side.

331At no point did R.P. tell H.J. that she could not leave his vehicle. He explained that the doors can be opened while the vehicle is moving. It is possible for a person to jump out.

332R.P. was intending to bring H.J. home. Along the way, he offered to stop at a store to get water for her. She accepted. Specifically, R.P. recalled that she wanted “Dasani” brand.

333Accordingly, he stopped at the Circle K convenience store on Petawawa Boulevard, a well-lit area with twelve gas pumps and LED lighting.

334R.P. added that he parked right in front of the store and left the vehicle running. The keys to his truck were in the ignition. Again, he never told her that she could not leave his vehicle. He was not concerned about leaving H.J. in his vehicle notwithstanding her state of intoxication.

335While inside the store, he purchased three or four bottles of water and an energy drink for himself.

336Upon his return to the vehicle, H.J. told him she was sorry. She “fucks everything up”. She was playing a game on her phone with alien figures called “Among Us”.

337When he resumed driving, R.P. explained that he mistakenly drove up a road in the direction of where he used to live. He turned onto Len Hopkins Drive and saw the RIDE program. He denied that he was trying to avoid it.

338He noted that there were two police officers staffing the RIDE stop, one male and one female. They both approached his truck. The female went to his driver’s side, the male to the passenger side. R.P. saw the male officer speak to H.J. She did not express any concern to the policeman.

339After breath testing, R.P. was told he could leave. He estimated that he was detained at the roadside for roughly 20 minutes. Once on their way again, R.P. stated “the obvious” to H.J. He said, “You see how much drama you are causing.”.

340Shortly after that, R.P. testified that H.J. “attempted to kill herself”.

341Just prior, H.J. was asking R.P., “How could you love me? I’m fucking crazy. I wish I were dead.”

342R.P. estimated that while he was travelling at 80 km an hour in his truck, H.J. tried to jump out. The front passenger door flew completely open. He slammed on his brakes and pulled on her seatbelt, so she could not get out of his vehicle.

343He turned into the parking lot of a pet grooming business near where H.J.’s brother lived. He consoled her. He told her nothing was worth killing herself for. He was traumatized. He wanted to prevent her from hurting herself.

344He went on to explain that he did not know if her brother, G.J., would be home. Given his uncertainty, he asked H.J. if she would like to return to K.G.’s place. She agreed.

345The return drive to K.G.’s was quiet. H.J. voiced no opposition. By this point, R.P. estimated it was close to midnight. He reckoned almost 90 minutes had elapsed between the time when they initially left K.G.’s and then returned to his home - what with the driving time itself, the stop at the convenience store, the RIDE program, and the period spent in the parking lot.

346After parking his truck, R.P. opened the door for H.J, and thereafter noted that she was walking a lot better. He hooked his arm into hers to assist her with balance. She was still “stumbly”.

347Upon arrival at K.G.’s door, R.P. was able to see that K.G. was passed out on his couch. Once roused from his slumber after a minute or so, K.G. opened the door for R.P. and H.J. K.G. then guided them upstairs to a guest bedroom. He then went to his own bedroom.

348R.P. could not recall any conversation upon their return. Indeed, he believed that nothing was said.

349In the guest bedroom, R.P. testified that his intention was to have H.J. go to sleep, and to assist her by giving her water when she needed it. He did not think they would be “sexual”.

350He sat on the bed. She needed help sitting down and drinking water. He offered to sleep downstairs, but she told him she needed help. As a result, he stayed.

351She was fully clothed in bed wearing a light coat without shoes. He remained dressed as well. R.P. made no effort to disrobe her.

352Thereafter, R.P. described H.J. as laying in a double bed with her head on a pillow. She asked him to help her get her coat off. He did so. She then crawled back under the blankets. He thought it was getting close to 1 AM by that point on Sunday, November 29, 2020. She remained under the blankets. He was on top of them.

353For the most part, R.P. recalled H.J. being “pretty quiet”. They had never slept in that bed before.

354R.P. gave evidence that he did not know if H.J. was wearing a bra under her shirt.

355When asked if he attempted to kiss her while they were in bed together, he replied he did not. She put her hand on his thigh. She then sat up and kissed him. He did not pull away.

356She kissed him on the lips. She did not try to use her tongue. He described what could be characterized as a simple peck that H.J. gave to him. It lasted only a second. He did not touch her breasts, nor comment on them. In response, he told her, “We’re not doing this.”

357On occasion, H.J. would get up to go to the bathroom. R.P. estimated that she did so four or five times. He asked her if she needed help on her first trip, but he did not accompany her on any of them. She went alone. K.G.’s bedroom was just three feet away from the bathroom.

358Periodically, he would put his left hand behind her back to help her with sitting up. This happened four or five times as well. He would give her water to drink. “Every single time” he offered it to her, she said, “Yes”.

359On at least one instance, R.P. went outside K.G.’s residence to smoke a cigarette or two.

360He vehemently denied grinding his penis against her vagina while both were clothed. At no point in time in the guest bedroom did he touch her “private areas”. He made no sexual advances upon her that night at all.

361Around 2:30 AM, he reckoned, he had passed out. He awoke to H.J. having her hands on his “male parts”. He thought she was about to perform oral sex upon him. He pushed her off him. She did not ask if he wanted it. He did not.

362He testified that he told the police about her attempt at performing fellatio upon him when he gave his statement. He explained that he just woke up to it. She had her hand on his penis moving her head toward it. In describing specifically his actions in response, he said he pushed her forehead away. She asked, “What the fuck?”

363He went downstairs and slept on the couch.

364In reflecting back on H.J.’s state of sobriety, or lack thereof, R.P. felt that she was “100% too intoxicated” to engage in sexual activity with him. He reiterated that is why when she tried to kiss him, he said, “We’re not doing this”.

365At approximately 7 AM on Sunday, November 29, 2020, R.P. woke up and told H.J. that she had to pack up her stuff. He was taking her home. They did not see K.G. that morning.

366During the drive, R.P. yelled at H.J. for what she had done to him and reminded her of some of the events from the previous evening. She answered, “I fuck everything up”.

367They did not see each other again that day after he dropped her off.

368On the Monday, November 30, 2020, R.P. recalled attempts by H.J. to “submerge” herself in conversation with his colleagues and him on the floor. He was “still pissed off”. She was acting as if nothing happened. She was joking around. She asked for his help while working on the turret of an armoured vehicle. He did not know what to think.

369They went to lunch together that day at a fast-food restaurant, either Wendy’s or Harvey’s. They did not talk much about the weekend’s events. To R.P., H.J. seemed totally fine. They did not see each other that Monday evening.

370The next day, Tuesday, December 1, 2020, H.J. appeared off to R.P. She was struggling with “past demons”. He injured his hand at work and had to go seek medical attention. She had already left for the day. She forgot her duffel bag and asked if he would drop it to her later that day. He did so en route to the hospital.

371At 3:07 PM, she offered to bring him food while he was waiting to be seen by a doctor.

372It was later that Tuesday evening at 9:14 PM that R.P. received the fateful, “first and final warning” text from H.J. When he read it, he described himself as being in “such shock”. He did not believe that anything he did to H.J. could properly form the basis for a harassment complaint.

373He explained that he regretted sending a text at 3:46 AM on Wednesday, December 2, 2020 ordering H.J. to attend at his office at 7:15 AM. He did so because he is “old-school”. He wanted to fix the problem if he could. He wanted to make sure that she was okay, knowing her history of “mental instability”. He intended to do a “welfare check” on her.

374He reflected that in hindsight, if he had his time back, he probably would not have gone about things the same way.

375That Wednesday, he became aware that their superiors, then Sgt. B.B., Mcpl. S. and Mcpl. R., began looking into what had occurred between H.J. and him in their private lives. After a noon hour “hearing” their superiors had with her, H.J. was ordered back to her own unit.

376R.P. believed that he did speak to then Sgt. B.B. at the time about the nature of his relationship with H.J., but he received no punishment for it.

377When R.P. went to work on Thursday, December 3, 2020, H.J. was no longer present in his workplace. He thought that the ultimate decision to move her was made by then Sgt. B.B.

378Under cross-examination, R.P. confirmed that he was still married in November 2020. His wife and he separated earlier near the end of August of that year, and for a period, continued to live together under the same roof. He explained that they were trying to make the impact on their children as minimal as possible.

379He did not tell his wife about H.J. He did not want to hurt her. He kept the affair from his family.

380He added that his relationship with H.J. stemmed out of something he did not expect to have occurred.

381In February 2021, he reconciled with his wife and came clean. By that, he meant that he told her about his outstanding criminal charges relating to H.J. He did not tell her about the “first and final warning” text. Nor did he show his wife the exchanges which took place between H.J. and himself in the lead up to receiving it on December 2, 2020.

382He recounted that he received a call from the military police around 11 PM on December 4, 2020. He attended at the detachment and gave a statement about the events giving rise to his charges.

383At that time, he shared with his wife that he had been asked by the military police to attend at the detachment, and that H.J. has mental health problems. He told his wife as well that H.J. claimed he sexually assaulted her, but in truth, she sexually assaulted K.G. and him. He did not provide his wife with details. It was “just broad” what he said to her.

384His wife, he testified, was furious about the affair and the sexual assault allegations.

385R.P. remained living with his parents for a few months after giving his statement to police.

386In terms of the chain of command at the workplace, R.P. explained that his immediate superior was Mcpl. K.G., and above him, then Sgt. B.B., whereas for H.J., her immediate superior was Cpl. Z., above him, Mcpl. S, and then Sgt. B.B.

387R.P. was H.J.’s OJT Coordinator. He would make sure that the OJT’s in his shop would get their “trackers” done. This consisted of checking preprinted forms which had to be ticked after each component of the OJT’s training was completed. He explained that basically, his role was to act as “an administrator, or a liaison”.

388He added that his primary function was to perform the duties of a “vehicle tech”. His secondary responsibility was to be the OJT Coordinator. He explained that it was ultimately Mcpl. S.’s duty to find out why any of her trackers were not ticked off.

389R.P. agreed that although he was not in H.J.’s direct chain of command, he did have influence over her as a higher ranking member of the military. However, he would not “jack up” H.J., or in other words, berate her for any reason. If R.P. was unsatisfied with her performance, he would go to Cpl. Z. or Mcpl. S. to complain.

390R.P. recounted that H.J. often spent more time in his area than her own. She would be around him a lot. She was a very “flirtatious” person. She would start conversations and joke around with other OJT’s on the floor distracting them from the task at hand. It could be “annoying and disruptive” at times. Coworkers took notice and it made for some discomfort in the workplace.

391He agreed it was appropriate for him to inform her chain of command about this and he did speak a few times to Cpl. Z. and Mcpl. S. on the subject. However, it was up to her own section to sort that out.

392R.P. denied that he had any input into her progress reports or “PER’s”. Nor did he have any involvement with the person responsible for filling those out.

393R.P. did not believe there was anything wrong with him entering an intimate relationship with H.J. After they began the affair, he did not think he spoke to her again about being “flirtatious” and “distracting” in the workplace.

394He described himself as a “blunt and open” person in the way he speaks. He had two types of conversations with H.J. at work. Publicly, he would question her as to whether she had something else to do, but in private conversation, he would explain how she could be distracting to his “guys”.

395He acknowledged that he kept from his coworkers the intimate nature of the relationship he was having with H.J. He explained that he is a “private person”.

396He denied that he was secretive about their relationship because he knew it was improper as her OJT facilitator to be involved with her.

397R.P. stated that he was familiar with formal rules governing military members’ conduct called Defence Administrative Orders and Directives (“DAOD’s”). He knew how to look up DAOD’s when the need arose. Generally, he was aware that personal relationships amongst military members can be “frowned upon”.

398Prior to commencing his relationship with H.J., he did not consult DAOD 5019-1 governing “Personal Relationships and Fraternization”. Nevertheless, he agreed he had an obligation to comply with the DAOD’s. He acknowledged as well that his affair with H.J. met the definition of “personal relationship,” as set out in DAOD 5019-1.

399He strongly disagreed that his relationship with H.J. was a “distraction”’ which negatively impacted his unit’s operational effectiveness.

400Under subpara. 4.2(c), (d) and (e), he acknowledged that he ought not to have been involved in any aspect of H.J.’s “individual training or education”, “duties or scheduling for duties”, and “documents or records”. However, he denied that H.J. was his trainee. In his opinion, as the OJT Coordinator, DAOD 5019-1 did not apply to their relationship. She was in the EO Tech section. Although he was involved in her program, she was part of the ansel trades, and not a Vehicle Tech like he was.

401Furthermore, H.J., or any other trainee, would be free to refuse to show him her “trackers”. He squarely denied that he was involved in her education and training. Most of the time, he testified, she was not in his section and he pushed her towards Mcpl. S.

402If he had input into her documents and records, he acknowledged he ought to have notified his chain of command as to the nature of their intimate relationship. Indeed, he brought to the attention of her superiors her “deficiencies”.

403While R.P. appreciated the need for a fraternization policy within the military, he felt it had no application to him. He had never come across a situation where the OJT Co-ordinator had a relationship with a trainee. He denied that he did not tell his immediate superior, Mcpl. K.G., about his affair with H.J. because he knew it was wrong to be in a “personal relationship” with her.

404R.P. disagreed that his “personal relationship” with H.J. had a “negative effect on the security, cohesion discipline or morale of [his] unit” as set out at para. 5.1 of DAOD 5019-1, notwithstanding the “distraction” she caused from time to time. Strictly speaking, R.P. asserted, H.J. was not part of his unit.

405R.P. realized that under para. 5.2 of DAOD 5019-1, H.J. and he would have to be separated if they were involved in an “adverse personal relationship”. He did not want to see that happen. He added that she was just posted temporarily to his unit for a period of three months. He was not worried about being separated from her because she would be gone after her term with his unit had come to its completion in any event.

406He emphasized that he was sympathetic to H.J.’s mental health condition. He was aware of her suicidal ideation. As he put it, “I kicked down doors for her.”

407Regarding his relationship with H.J.’s brother, G.J., R.P. recounted that they served together in Latvia in 2018 going into 2019. They were friends. R.P. met her once or twice at G.J.’s place before H.J. and he began dating.

408Before commencing their relationship, R.P. was aware of H.J.’s bizarre behaviour. He had spoken to G.J. about it. G.J. came to him to discuss her panic attacks at work. R.P. was present for one of them. G.J. also went to R.P.’s house to talk about H.J. hitting on him at work as well.

409R.P. showed G.J. the texts she was sending to him. She would not stop. R.P. asked G.J. to intervene. The next day H.J. had another panic attack at work.

410G.J. came to see R.P. a second time after H.J. threatened self-harm. R.P. placed this around the end of August 2020. He told G.J. that that is why he brought her to Warrior Support.

411R.P. agreed that he kept from G.J. the nature of the relationship he went on to commence with H.J. R.P. explained that he never intended to be in a dating relationship with her. It simply evolved into it. He allowed it to occur, but looking back on how it developed, he felt worn down by her constant texting and the attention she paid to him.

412When challenged by Crown counsel on this point, he conceded that as much she encouraged an intimate relationship between them, he did as well. However, he did not “press” her. That word connotes “forceful”. As R.P. put it, “That’s not me.”

413He agreed he had ample opportunities to end the relationship. He took them on occasion, but always went back. He could have and should have asserted himself and walked away.

414He had regrets. He was married with children, but those factors were insufficient to put a halt to the affair with H.J. Simply put, he wanted to be with her.

415He was aware that in addition to her mental health difficulties, H.J. was an avid cannabis user. She told him it helped her to cope with her anxiety. He did not know her to be a big drinker. Prior to the evening they spent at K.G.’s, he had never seen her drink.

416R.P. could see it in H.J.’s eyes when she had been smoking cannabis. Also, the way she talked changed. Sometimes she could be “super, happy-go-lucky”. Other times, she was “a mess.” One of the reasons R.P. wanted to break up with H.J. was her behaviour while under the influence of marijuana.

417On the evening of Saturday, November 28, 2020, R.P. acknowledged that H.J. and he were broken up. He was “okay with it”. They agreed to be friends, but he knew they were not capable of it. He was hopeful the relationship would resume.

418The day before, Friday, November 27, 2020, H.J. overheard K.G. and R.P. discussing plans to get together for a barbecue. She thought it would be fun. R.P. claimed he did not want her to come.

419He picked her up at her brother’s house the next day. Together, they travelled in R.P.’s truck to K.G.’s house.

420While there, they all played video games and watched movies. They then played King’s Cup. H.J. was doing “a lot of drinking and smoking” – K.G. too.

421They were having a good time and getting along until, as R.P. put it, “Things went off the rails for me when she began touching K.G.”. She put her hands up his shirt and began rubbing and caressing his chest. She rubbed his feet as well. By this point, she was very intoxicated.

422K.G. moved away from her. He did not tell H.J.to stop when she was touching him, but he gave R.P. a look which R.P. interpreted to mean, “I don’t like this.”

423She continued by also rubbing her foot on his leg. R.P. considered what H.J. was doing to K.G. as a sexual assault. It was “terrifying” for R.P. to watch.

424Notwithstanding, R.P. did not call her brother, G.J., to come collect her. Nor did he call the police to report what was occurring.

425K.G. eventually got up off the couch to go to the bathroom. Again, he gave R.P. a look of “What the fuck!”.

426R.P. denied that he was jealous. Instead, he described himself as “a bit hurt”. H.J. and he had just broken up. He still had feelings for her. She was crossing the line.

427He reiterated that he had promised to look out for her. He was not to let anything bad happen to her. He would have asked anyone behaving as she was to stop. If they did not, he would have contacted the military police.

428R.P. spoke later with K.G. about the incidents of that evening, specifically H.J.’s touching of him. R.P. told K.G. he was there for him as a support. R.P. saw what happened. He did not suggest that K.G. should call the police. Nor did R.P. speak to G.J. about his sister’s behaviour, as he had in the past.

429When H.J. and R.P. left K.G.’s house, she was “drunk”. She was not able to get her own coat or shoes on. She needed help. R.P. described her as being “extremely intoxicated”. Her head was bobbing. Her speech was incoherent.

430R.P. maintained that in driving her to her brother’s house as he had initially intended, he made a wrong turn off Petawawa Boulevard on to Black Bay Road. He did so out of habit to go toward where he used to live. That is how he encountered the RIDE program.

431When he was released from the police stop, he returned to Petawawa Boulevard. He was driving 80 km/h when H.J. tried to jump out. She flung the door open while telling him, “I fuck everything up. I wish I weren’t alive.” R.P. commented, “She forgot luckily that she had her seatbelt on.” He was able to grab her and pull her back inside.

432R.P. stated that she did not know if G.J. would be home. R.P. thought that maybe his wife and he were away “house hunting”. Crown counsel reminded R.P. that H.J. was able to get G.J.’s wife to agree to take care of her dog. R.P. maintained nevertheless that he was not sure whether G.J. and his wife would be home that night.

433R.P. denied that he was worried at all about G.J. knowing that he was still hanging out with his sister.

434R.P. agreed that earlier in the evening while still at K.G.’s place, he texted H.J. to tell her, “You’re hot.” He did so, he agreed, even though his relationship with H.J. was supposed to be at an end. He stated he did it “playfully” because she was on her phone. However, he did agree that he was flirting with her.

435He explained that he was planning on staying the night at K.G.’s. He told H.J. that. She told him she would “play it by ear”, but he assumed still that she would have someone come to get her, or she would cab it home.

436R.P. claimed that he would not have cared if H.J. chose to leave K.G.’s house to go home.

437Through reference to his texts, Crown counsel reminded R.P. again what he had said to H.J. while they were at K.G.’s place early in the evening, namely “ . . . I just want you to have a good time.” R.P. then conceded that he was seemingly more content if H.J. stayed.

438Later however, he did become annoyed with H.J.’s antics. That is why he texted to her, “Don’t make me babysit you, [H.J.]”. Notwithstanding, he denied that his tone was changing and that he was becoming angry.

439Despite her state of intoxication, he did not call her brother, G.J., or a cab for her. Instead, he felt responsible himself for getting her home. However, he maintained it was her choice as to how she wanted to get herself home.

440R.P. agreed that H.J. was telling him via text, “I’m good”. By this, she was telling him she did not need his help.

441When he texted to her, “I dunno it’s hard”, he conceded that his feelings were hurt. It appeared to him that reconciliation was not in the cards. Worse still, H.J. seemed more interested in K.G. than in him. That is why he commented to her, “And I want to cuddle u so bad but ur kinda cuddling [K.G.] so I may leave and go home.”

442By “cuddling”, R.P. described H.J.’s conduct in that moment of leaning over toward K.G. with her head touching his side. R.P. acknowledged that H.J. texted to him clearly that she did not want to cuddle him. Again, R.P. maintained that what he was witnessing H.J. do was not making him angry.

443He agreed that H.J. was clearly communicating to him that she wanted to stay at K.G.’s to hang out and to have fun. Pointedly she told him, “No I’m responsible for me and I’m good.” He acknowledged as well that he never texted K.G. to tell him that he was “terrified” or “traumatized” by what H.J. was doing to him.

444When R.P. texted to H.J., “Ur literally going to drive me crazy”, he explained that she had clearly crossed the line with her behaviour, which he considered to be a sexual assault upon K.G. R.P. was exasperated. That is why he texted to her, “Why are you doing that?”. He followed up with: “Nvm (nevermind) [H.J.]. You don’t clearly fucking get it.” It was at that very point, R.P. testified, that H.J. began rubbing K.G.’s chest, and later used her feet to touch his leg.

445R.P. agreed that he described H.J.’s conduct in one of his texts as: “Ur all over [K.G.] rubbing him”. In R.P.’s view, she was sexually assaulting someone right in front of his face.

446In his evidence, however, R.P. denied that he was asking H.J. why she was flirting with K.G. R.P. disagreed that H.J. in her reply text to him was explaining that K.G. was just trying to be nice to her. To R.P.’s mind, she was “delusional” and “drunk”. She was so intoxicated, she did not know what she was doing.

447R.P. remained steadfast in his denial that he was getting angry by what he was witnessing. Rather, he described himself as being “hurt” by H.J.’s behaviour toward K.G.

448In describing his intentions in giving his statement to the military police, R.P. testified that he was “trying to be truthful”. He agreed that at times he was “reserved”, not wanting to answer their questions.

449He agreed that he used the words “sexual assault” when he spoke to the police. He told them something to the effect of: “If anyone was sexually assaulted that night, it was me and K.G.”

450R.P. conceded that in her texts, H.J. was clear with him. She did not want to go. She repeated, “I’m good.” She told him, “No I’m having fun”, when he was trying to urge her to leave with him. When he accused her of “cuddling [K.G.]”, she squarely told him, “No I’m not. I’m going to watch this movie, then go to sleep.”

451In spite of the words she chose to express her feelings and intentions, R.P. could see otherwise. She was, as he testified, “zombied” on the couch. She was periodically in and out of consciousness. Her eyes were closing momentarily, but then would open again. She was having trouble talking.

452When Crown counsel suggested to R.P. that H.J. was no danger to herself, him or K.G., R.P. retorted that she was a danger to K.G. He was a victim of sexual assault.

453R.P. went on to explain that when K.G. returned from the bathroom after leaving to get away from H.J., K.G. was still shaken. Although he was intoxicated, he was still capable of processing. To R.P., K.G. appeared “pale”. His eyebrows were raised with a look of confusion on his face. His mouth was open. He was overthinking things.

454R.P. was trying to help K.G. by removing the perpetrator, H.J. R.P. did not intend to stay on sentry duty all night, if H.J. passed out on the couch.

455When challenged by Crown counsel that he brought the perpetrator back to the home of her victim, R.P. countered that she had just tried to commit suicide. He had a duty to preserve life and to hydrate her, even if ultimately what he did was the “wrong call”.

456R.P. agreed that he had other options. He could have taken H.J. home or to the hospital. He could have called an ambulance. He could have taken her to his parents’ home where he was then living. Alternatively, he could have simply stayed in his truck with her.

457He was adamant that he did not return to K.G.’s house with H.J., because he wanted privacy and a place to engage in sexual activity with her.

458He conceded that he did tell her earlier he wanted to cuddle with her. He also wanted to rekindle the relationship with her if he could. He surmised that he would rather have her cuddle him than see her sexually assault someone else.

459R.P. maintained that he reasoned with H.J. and she agreed that she should just go home with him. He insisted that he could “reason” with an intoxicated person.

460His original intention was to take her home to G.J. and to tell him about what had happened.

461R.P. changed his mind about bringing her home when she tried to jump out of his truck. To his mind, she could not be trusted to be left alone at her brother’s house.

462If she was with him at K.G.’s place, she was not going to commit suicide. R.P. would also be able to keep K.G. safe too. R.P. would be able to watch over them both.

463Crown counsel challenged R.P. that if he was really concerned about H.J.’s mental health, he would have brought her for professional help. Instead, he wanted to be alone with H.J. R.P. responded what the Crown was attempting to attribute to him was completely wrong.

464When he gave evidence about the next morning, Sunday, November 29, 2020, R.P. stated that H.J. could not remember the events of the previous night, specifically how she tried to jump out of his truck and what she was doing to K.G.

465He did not bring her to Warrior Support, but he did want her to contact her counsellor.

466He explained that as a member of the military, he has a duty to his fellow soldiers to protect her. He disagreed that he was deciding for H.J. what was in her best interest. He was merely being persuasive in getting her to leave K.G.’s the night before. He assisted her in getting her clothing on. He was in shock trying to process what had just occurred. The decision to return to K.G.’s was made after she had sobered up to some degree. She herself agreed to return to K.G.’s.

467He conceded that he did not check at her brother’s residence to see if anyone was home.

468He claimed that he asked H.J. after she tried to jump out of his truck if she wanted to go to the hospital. She declined. R.P. recalled her telling him, “I don’t want to fuck my career.”

469Through the course of the night spent at K.G.’s, R.P. stated he was helping to sober H.J. up by giving her water and letting her sleep.

470Upon his return to K.G.’s, R.P. acknowledged that he did not ask K.G. if he minded having the perpetrator return to his residence. R.P. added that the plan was for him to return in any event. Once he arrived back, it was clear to K.G. that he had H.J. with him. However, it was true that he did not ask for K.G.’s permission to bring her inside again.

471R.P. explained that over the course of the night, he was worried that H.J. may have overdosed. She was “spinning and dry heaving”. He had monitored members of the military in the past in that condition. Nevertheless, he maintained that it was her decision to return to K.G.’s.

472R.P. estimated that he stayed awake 99% of the time that night. Due to exhaustion, he passed out for a brief period. That is when she sexually assaulted him. He awoke to her hand on his penis.

473He thought she had been sleeping for approximately an hour. He checked his phone when he went downstairs to sleep on the couch. It was 2:30 AM.

474R.P. conceded that he was in no position to monitor H.J. after he went downstairs. He agreed that the potential existed for H.J. to regurgitate and die. If he remained in bed with her and heard her choking, he was sure he would have woken up to help her. Again, he denied that his decision to return to K.G.’s had anything to do with seeking out “alone time” with H.J.

475In describing the kiss which H.J. gave him while she was sitting up to drink some water, R.P. recalled that she touched his leg, leaned in toward him and kissed him. That was something she typically did, but not what he was expecting.

476Crown counsel drew R.P.’s attention to an affidavit he had sworn on December 19, 2022 in support of a pretrial application to permit his lawyer to cross-examine H.J. about their prior sexual history. R.P. agreed that he spoke in the affidavit of a “pattern” followed by both H.J. and him as a prelude to sexual activity. However, he maintained that the kiss was unexpected at that point in time from H.J.

477R.P. maintained that he resisted this intimate advance from H.J. He told her words to the effect of: “You’re too drunk. It’s not going to happen.”

478R.P. clarified that the touching of his leg and the unexpected kiss to his lips delivered by H.J. preceded him passing out.

479R.P. remembered her waking up some 20 minutes after she kissed him and fell asleep. He reiterated that H.J. went to the bathroom three or four times, but he never accompanied her. He was able to see from his vantage point on the bed in the guest room where she was going. However, he denied that he was ensuring she was not going into K.G.’s room.

480Other than waking up for water and going to the bathroom, H.J. was sleeping while R.P. was still in the guest bedroom with her. He emphasized that he was simply looking out for her welfare. He was not watching her “like some creep”.

481In describing the mechanics of how H.J. was able to access his penis, R.P. explained that he was wearing a snap button at the waist of his pants. He did not lie down when he passed out. He was leaning against a wall. His underwear were down. He wears boxers which have a slit or pocket in them to allow the penis to pass through in order to urinate without having to take them down. H.J. was leaning over him. She had managed to expose his penis through the slit of the underwear.

482She had her hand on his penis when he awoke and was moving her mouth toward it. He “swung her”, “pushed her off” of him and went downstairs. He pulled up his pants and shorts as he was leaving the bedroom. He went to the couch. He did not go back to the bedroom to check on her well-being thereafter.

483He was in and out of a state of sleep for the balance of the night. He did not know why he did not just go home. He agreed that the correct thing for him to do would have been to call the police.

484Around 7 AM, he went upstairs to tell her what had happened and that he was taking her home. He wanted her away from him and to forget about what had occurred. He had “no clue” why he did not simply leave her to make her own way home. He agreed that the fastest way for him to create space between them was for him to have left her there.

485He recalled that she was showing signs of sobering up. She was able to care for herself. He did not ask her if she wished to take a cab. The only option they discussed was for him to drive her home. During the trip, he told her he was “done” with her. She had no recollection of what she had done to him. He gave her more of the details along the way.

486R.P. offered that he was embarrassed and in shock. He was mentally not in the right place to tell her brother, G.J., about her suicide attempt and the fact that she had sexually assaulted two people.

487As R.P. put it, “If I was in the right frame of mind, I would’ve gone to the police and had her ass arrested immediately.”

488He estimated that he sent her his “goodbye” text some two hours after dropping her off.

489R.P. stated that typically he will not impede anyone’s freedom of movement, but if H.J. had gone into K.G.’s room, he would have put a stop to it. He added that K.G.’s room and the guest bedroom were merely six feet apart.

490R.P. confirmed that he told police that she sexually assaulted him. As he put it, “I didn’t ask her to fucking wake me up jerking me off.” He agreed that he did not tell police that she tried to put her mouth on his penis. He explained that he was interrogated between 11 PM and 5 AM. He was tired.

491He reiterated that his penis was exposed, and her hand was already touching it when he regained consciousness. He did not wake up while she was unzipping his pants and manipulating his boxers. He agreed that he had earlier testified that he would have woken up if he heard H.J. regurgitating.

492R.P. conceded as well that he did not tell police he left the guest bedroom right away after she touched his penis. To the contrary, he said he “pushed her over”. He told her to drink some water, to wait an hour and to continue to hydrate herself.

493R.P. also did not correct the officer interviewing him when he suggested that H.J. was merely “flirting” with K.G., and more accurately point out to police, that she was sexually assaulting him.

494Overall, R.P. felt that, because he is male and was telling the officer about what had occurred, the police did not believe him.

495When it was suggested to him by Crown counsel that H.J. was truly drunk and that she was not feigning to be so, R.P. agreed. However, it was then pointed out to him that he told the police interviewer that he “thought maybe she [H.J.] was putting on a show”.

496When challenged about getting the sequence wrong for when he purchased water for H.J., having told the police he bought it after she tried to jump out of his truck, R.P. was certain that he bought it before. He reckoned that he was confusing and jumbling things under stress while speaking to the police.

497He agreed that after texting his “goodbye letter” to H.J., it was the not the best way to end the relationship - to text her less than half an hour later - suggesting that they needed to have “a real talk”. He explained that he was no longer annoyed with her at that point. He was looking for an apology for having been sexually assaulted by her the night before.

498When R.P. was not getting a response from H.J., he denied that he was pulling rank on her by suggesting he needed to do a “welfare check” on her. Nevertheless, he agreed that he was not worried about her health when he dropped her off at her brother’s house. R.P. explained that in that moment, when he was insisting on the “welfare check”, his “mindset was messed up”.

499He acknowledged that eight hours after saying his final goodbye, he was wanting to have contact with H.J. again. Indeed, he was insisting upon it. He explained it, he was not in control of his feelings.

500R.P. maintained that H.J. claimed she did not remember any of the events of the previous night, such as sexually assaulting K.G. in front of him, trying to jump out of his car, and sexually assaulting him in the guest bedroom. R.P. conceded that she never apologized for any of those things.

501In spite of what H.J. supposedly had put R.P. through the previous night, he was texting to her that she was “amazing” and “someone [he] cared so much about”. Still, he explained, he wanted to be her friend.

502He acknowledged that his entreaties to her were inviting contact from her. They were far from a final goodbye.

503Although he believed he was deserving of an apology from her, it was he who was telling her he was sorry for what happened the previous night. She hoped that she could forgive him.

504When pressed that instead of getting an apology, he agreed that he gave one, he attempted to explain himself by testifying, “I was in a diminished mental state.”

505Despite his claim to have been “traumatized” watching his ex-girlfriend touching his best friend, within a day later, R.P. was offering to be her “bestie”.

506He offered that he did not understand his behaviour himself. It was an “emotional roller coaster”.

507By Monday, November 30, 2020, R.P. was pleading with H.J, “Don’t leave me.” She asked him what he meant by that. Their relationship had not resumed. He never did answer as to what he meant. Instead, he responded with a question, “Ya what u think I mean.”

508R.P. testified that he was not sure whether he was testing the waters to see if he could resume an intimate relationship with H.J. Time had taken its toll on his powers of recall. As he put it, “It was 3 years ago.”

509Later at 8:34 p.m. that evening, R.P. texted H.J. to say:

“ . . . I’m sooooo sorry I let this happen and I was literally rocking you most of the night in my arms making sure you were okay and hydrating you so please don’t think I took advantage of you or anything like that I wouldn’t. Like I’m still in love with you, [H.J.].”

510However, in his testimony, he acknowledged that he was not really “rocking” her in his arms. He would simply rock her upward to give her water and let her back down again. He did not believe that his use of the word “rocking” was intended to convey to H.J. that he was comforting her the entire night.

511The following day, Tues., December 1, 2020, R.P. was again seeking “cuddles” from H.J. He testified that he did not remember sending a text at 4:09 PM to her asking for them. He explained that he was on pain medications at the time, but he agreed on a fair reading of the text, he was the one who wanted them. She did not.

512When he texted to her that he felt distraught without her, as if somebody had stolen something from him and he wanted it back, he was making her feel “pressured”. However, he denied that he was the type of person who cannot take no for an answer.

513He did nevertheless acknowledge that he was the one pressing to keep her engaged in texting with him.

514When he received her “first and final warning” text, he explained that he was “not clear in the sense of where it was coming from”.

515Even though he had testified at length earlier as to how he was not her superior, he agreed that he sent a text to her within five minutes of receiving the “first and final warning” claiming to be her “boss”. He explained that as a corporal to a private, he was wanting an answer. In the military, as he put it, “harassment is a huge ordeal”.

516His intent upon doing the welfare check, he conceded, went without any attempt to contact her brother, G.J., or her proper chain of command. He maintained nevertheless that he “just wanted to make sure she was okay”.

517In one of his texts to her shortly after receiving the “full and final warning”, he referred to her by her rank. Notwithstanding, he insisted that he was not attempting to use his authority within the military over her to compel her to do what he wanted her to do. He stated, “All I wanted to do was figure out what was going on.”

518At 3:46 AM on Wednesday, December 2, 2020, he texted to her that she was to report early to his office the next morning at 7:15 AM to receive a “verbal warning”. He was issuing to her “a lawful command”. It was an order. He testified he was intending to get her direct superior, Mcpl. S., involved when they met. R.P. described his mental state as “kind of freaking out”.

519R.P. acknowledged that his text of 3:46 AM did not mention to H.J. that she would not be meeting alone with him, or that he intended to have Mcpl. S. present in his office as well.

520Further, he agreed that it was in fact H.J. who involved Mcpl. S., not him. Notwithstanding, he denied that he was threatening her, or forcing her to talk to him about why she felt harassed. He claimed he was simply trying to “nip things in the bud”.

521When R.P. was contacted by Mcpl. S., he apologized to H.J. for upsetting her, and he promised he would back off completely. He denied that he was blaming her for escalating the situation.

522R.P. disagreed that he was avoiding in the copious text exchanges he had with H.J. any discussion about what happened in the guest bedroom at K.G.’s house in the early morning hours of Sunday, November 29, 2020. He conceded he did not tell Mcpl. S. what she did to him after her superior became involved. R.P. only got into those specifics when he spoke to police on December 4, 2020.

B.B.:

523When B.B. testified on July 27, 2023, he had been a member of the military for 21 years. He held the rank of Warrant Officer, but at the time the material events occurred as between R.P. and H.J., he was a Sergeant.

524B.B. was a member of 1 Royal Canadian Regiment and was assigned to the same shop where R.P. and H.J. worked. B.B. was the highest non-commissioned member on the floor of the workplace.

525B.B. indicated that he noticed some flirtatious behaviour between R.P. and H.J., but he was not 100% sure of whether there was anything to it. Workplace relationships are not usually a problem or “a big deal”. It was not enough of a concern for him to speak to R.P. about it.

526B.B. added that he never socialized with H.J., but he did on occasion with R.P. Rank, he pointed out, does not mean anything when members of the military are on their personal time.

527B.B. was not aware that an issue had arisen between R.P. and H.J. until it was brought to his attention by Mcpl. S. To B.B.’s understanding, H.J. was feeling harassed by R.P.; however, B.B. was not aware that there was a sexual component to any previous interactions between R.P. and H.J., nor any hint of kidnapping or confinement of H.J. by R.P. If there had been, B.B. would have involved the military police.

528To determine a means of response, B.B. called in Mcpls. S. and R. to consult with them. It was informal. It did not lead to findings being made. It was by no means a hearing. The notion of R.P. and H.J. having had an affair was never raised. Nevertheless, it was decided that H.J. would simply return to her home unit. Her rotation as an OJT trainee was nearing its end in any event.

529B.B. did not speak directly to H.J., nor did he ever. The decision to move her back to her unit was not to be regarded as punishment. He asked her direct superior, Mcpl. S., to pass that message along to her.

530B.B. explained that there was no possibility of moving R.P. He was posted to 1 Royal Canadian Regiment.

531To B.B.’s recollection, within an hour of his meeting with Mcpls. S. and R., the matter became more serious. It took on a sexual overtone. It had to be brought to the attention of the military police. The internal inquiry ended and B.B. stepped back to allow the military police to do its own investigation.

532Under cross-examination, B.B. acknowledged that H.J. was of a lower rank than R.P. She was a private. He was a corporal. R.P. was also her OJT Coordinator.

533In terms of B.B.’s awareness of an OJT Coordinator’s duties, he testified they included:

a) knowing where OJT’s are assigned to work,

b) transmitting information to the OJT’s emanating out of the OJT Centre, and

c) passing information up and down the line of the chain of command.

534When prompted by Crown counsel, B.B. acknowledged that the OJT Coordinator must also ensure that the OJT’s “book” is kept and filled out properly. At the conclusion of the OJT’s rotation, the Coordinator must see to it that the OJT has completed all the job requirements expected of him or her.

535However, R.P. in this role was not expected to “sign off” on the book. It would have to be brought up to B.B. or a Section Head for final approval. R.P.’s role as Coordinator was secondary in that regard.

536B.B. denied that he had a friendship with R.P. They shared an interest in fishing and had gone on a couple of trips together. R.P. also drove B.B. to work for a while when the latter was without a vehicle.

537B.B. acknowledged that he has not seen H.J. since she ended her rotation with his unit.

538He was aware of the adage amongst service members: “If the military wanted you to have a spouse, it would have issued you one.”

539An awareness of an intimate relationship having existed between R.P. and H.J. would not have concerned B.B. B.B. did not believe that R.P.’s role, as her OJT Coordinator, had any bearing on her military career.

540When shown Ex. 2, the Defence Administrative Order and Directive 5019-1, B.B. claimed he was familiar with it. He disagreed however that R.P. and H.J. were “superior” and “subordinate”. B.B. considered them more as “peers”.

541He agreed nevertheless that if R.P. told H.J. to report to work early and changed her regular time for doing so for personal training, R.P. would be exceeding his authority. R.P. would do likewise if he insisted on having answers given to questions he posed, or on doing a “wellness check” on her.

542Indeed, it was in consequence of that exact scenario of events that Mcpl. S. brought the matter involving R.P. and H.J. to B.B.’s attention.

543When shown texts exchanged between R.P. and H.J. regarding R.P.’s orders to H.J. regarding the above events, B.B. confirmed that R.P. had overstepped his bounds as H.J.’s OJT Coordinator in texting with her as he did.

544B.B. added that if the nature of the relationship between R.P. and H.J. had come to his attention earlier, he would have done something about it. B.B. “had an issue” with R.P.’s behaviour toward H.J. B.B. regarded R.P.’s conduct toward H.J. as an abuse of his authority over her. B.B. would have taken the matter further up his chain of command, if he had been in the know, and if the military police had not become involved.

545From a work perspective, B.B. opined, H.J. was not getting into any trouble for having had an affair with R.P. as a married man.

546B.B.’s decision to send H.J. back to her unit was the “best and fastest way” to create a safe space between R.P. and her. She was about to finish her rotation at 1 Royal Canadian Regiment in any event.

The Issues

547I must apply a W.(D.)² analysis to the evidence adduced at R.P.’s trial. Clearly, the credibility of both R.P. and H.J. must be carefully assessed. Their reliability as historians for significant past events, although secondary, is worthy of some comment as well.

548Essentially, in applying the law, I must acquit R.P. if I believe his testimony regarding the incident in question after I assess the evidence as a whole.

549If I do not believe him, but his evidence raises a reasonable doubt upon my assessment of the evidence in its totality, I must also find him not guilty.

550Even if I do not accept the evidence of R.P., nor does it raise a reasonable doubt, I must still be satisfied of his guilt beyond a reasonable doubt based on the evidence which I do accept, if I am to convict him of any offence with which he was charged.

The Law

551Recently, the Supreme Court of Canada hearkened back to the fundamental principles of law to be applied in every criminal trial in R. v. Kruk 2024 SCC 7. The Court held:

59The 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).

60Various 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).

61The 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).

62Reasonable 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).

552Later, the Court reminded trial judges of their roles in assessing the credibility of witnesses in the following passages:

72It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.

73In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31; R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).

81Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621).[4] With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.

553In presiding over criminal trials over the past several years, I can observe and comment with the utmost confidence that the above three paragraphs of Kruk encapsulate and do justice to the arduous task faced by trial judges in criminal courts across Canada day in, day out. Truer words could not have been spoken by the highest court of our land.

554In R. v. Barton 2019 SCC 33, Moldaver J. set out the elements of the offence of sexual assault. He also addressed squarely the legal meaning of consent in an intimate partners context. He wrote:

87A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched” (R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 42).

88“Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.[6] It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract. Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57).

89Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).

90For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” (ibid., at para. 47).

555In R. v. Singh [2016] ONSC 3136, Fairburn J., as she then was, set out the elements to the offence of unlawful confinement at paragraphs 58 to 60 as follows:

58The actus reus of an unlawful confinement involves a person being “coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire” for a “significant period of time”: Pritchard, at para. 24; Mullings, at para.96; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 46; R. v. White, 2014 ONCA 64, 305 C.C.C. (3d) 449, at para. 51, leave to appeal ref’d [2014] S.C.C.A. No. 500; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont.C.A.), at pp. 473-75, leave to appeal to S.C.C. ref’d [1985] S.C.C.A. No. 118; R. v. K.M., 2016 ONCA 347, at para. 18.

59While the subject of an unlawful confinement needs to be restrained, this need not be done through the application of physical force or touching. While this is one way in which to commit the actus reus of the offence, it is not the only way. A person may also be coercively restrained by subjecting them to “threat, intimidation or the imposition of fear”: R. v. Kemath, 2010 MBCA 18, 251 Man.R. (2d) 191, at para. 55. As Monnin J.A. held in Kematch, at para. 55: “Preventing a person from leaving a place by threatening him with a gun if he moves, is an example of a person being physically restrained by non-physical, psychological means.”

60As for the mens rea of an unlawful confinement, it is a general intent offence: R. v. Bottineau, [2007] O.J. No. 1495 (S.C.), at para. 48. The Crown need only establish that the accused intended to deprive the victim of freedom of movement: K.M., at para. 18; R. v. S.J.B., 2002 ABCA 143, 312, A.R. 313, at para. 41. No specific or ulterior intent is required: R. v. E.B., 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal ref’d [2011] S.C.C.A. No. 445.

Analysis

Do I believe R.P.?

556I do not believe R.P.’s evidence for several reasons. I shall elaborate why.

557Firstly, in his testimony, R.P. placed a great deal of emphasis on H.J.’s mental health difficulties. He described her at times as being a “mess”. By contrast, he attempted to paint himself as her ‘knight in shining armour’. He did not succeed.

558Upon my review of the whole of the evidence, I find that R.P. was instead using H.J.’s loneliness, emotional vulnerability, and lack of self-confidence to his advantage at almost every turn. He preyed on her need for affirmation that she was a worthy and deserving individual. A full review of their text exchange between November 27 and December 3, 2020, makes this plain.

559On my interpretation of those communications, H.J. comes across as a young woman lacking in self-esteem, struggling with anxiety and depression, but yet so eager to please. R.P. exploited that willingness on her part. He capitalized on her weaknesses and used them for his gain. If anyone was “suffocating” the other, it was him doing exactly that to her.

560Secondly, R.P. tried to pull rank at the end of their affair. He was desperate. He was losing her. He feared she may make a formal complaint about his treatment of her. His order that she attend a meeting with him was a failed attempt at reasserting his influence and power over her.

561His claim that he was not her superior was contrary to the tenor of many of the final texts he shared with her. After he received her “first and final warning”, he flexed his muscles as much as he could. He referred to her by her inferior rank, addressing her as “Pte. [J.]”. Again, he was seeking to impose his will over her. Fortunately for H.J., she was learning finally, with her brother G.J.’s assistance, to stand her ground.

562B.B, as R.P.’s superior, concluded as well that R.P. exceeded his authority by ordering H.J. to attend work early, insisting on answers being given to his questions, and purporting to conduct a “wellness check” upon her.

563I find that R.P. did his utmost to persuade H.J. in the dying days of their relationship to change her mind and continue in the affair. He told her he loved her and cared for her. When she tried to break off the relationship, he pointed out to her that it would not be easy for him to let her go, even if that is what she really wanted. In a nutshell, R.P. was tenacious. He was never going to let up on her. H.J. legitimately at times felt powerless.

564Thirdly, I resolutely disbelieve R.P. that his memory of his evening spent at K.G.’s barbecue is vivid because it was the worst of his life. His recollection of the events which unfolded could hardly have been more self-serving. He knew H.J. was intoxicated by alcohol and drug. K.G. was almost equally so.

565R.P. looked to influence and shape their memories and perceptions of what did in fact occur. When H.J. texted to him hinting that she believed something untoward had occurred, he assured her he was not a “dirt bag”. He was also quick to contact K.G., to my mind, to see if he could enlist him over to his side.

566Fourthly, R.P. completely exaggerated what H.J. was doing to K.G. on the couch in his living room. In my view, it was not a sexual assault. Rather, it was a display of disinhibited, impulsive behaviour on H.J.’s part. It never amounted to an invasion or interference with K.G.’s sexual integrity. To characterize it, as R.P. did, as a sexual assault was ridiculous. In reality, it was nothing more than “cuddling”, as R.P. described it himself in his texts. At its highest, it was silly, drunken flirting by H.J. with K.G.

567I do not accept R.P.’s evidence that if he saw anyone, male or female, touching another person the way H.J. was pawing at K.G., R.P. would have called the police. Rather, I conclude R.P. was exaggerating or embellishing in his evidence what H.J. was doing to K.G. For his part, K.G. was not nearly as offended by H.J.’s conduct as R.P. was. Unlike R.P., K.G. did not come close in his evidence to considering himself a “victim of a sexual assault”.

568Fifthly, I fully reject R.P.’s claim that he was not jealous watching H.J. put her hands up K.G.’s shirt, caress his chest and rub her foot on his leg. R.P. claimed he was only “a bit hurt” by what he saw her doing. To the contrary, I find R.P. was extremely angry at what he was witnessing. He yelled at H.J. when K.G. was out of earshot in the bathroom. R.P. continued to berate her during the drive away from K.G.’s residence in his truck. I find that R.P. was more than angry, he was furious with H.J.

569Sixthly, I do not believe that R.P. was unaware of H.J.’s state of dress or undress, specifically whether she was wearing a bra or not, after they returned to K.G.’s place and entered the guest bedroom together. On R.P.’s own evidence, he helped her take off her coat. He was within inches of her bosom to do so, and able to see exactly what she was or was not wearing. He was still powerfully attracted to her by his own admission. He had told her that she was “hot” in one of his earlier texts that evening. He considered it his promise to care for her. I cannot accept that he was not paying extremely close attention to what she was wearing. Indeed, he even remembered what was written on her T-shirt.

570If anyone was inclined in that moment to crave intimacy, it was R.P. H.J. and he were officially broken up, but he wanted to cuddle. He was the one more inclined to seek a kiss, or a caress of her breasts. He was the one most interested in physical contact with her. He was the one wishing to test the waters to see how far H.J. would go down the path of reconciliation and intimacy that night.

571I point out as well that she was neither unconscious, nor an automaton. She was by no means incapacitated. In my view, R.P. was more than willing to take what H.J. would offer, notwithstanding her impaired state.

572Seventhly, I thoroughly reject his claim that he awoke to H.J. initiating the performance of fellatio upon him. I come to this conclusion not based on any mythical belief that a man would never refuse such an offer from a woman. Rather, I make this finding upon an assessment of R.P.’s account of what he supposedly did in response to H.J.’s attempt to give him oral sex. He testified he abruptly pushed her away and left her alone in the guest bedroom. He went to sleep on the couch. I do not believe him.

573To do so would have been contrary to his previously stated intention to look after her, hydrate her, generally care for her, and prevent her from self-harming and/or asphyxiating. That danger, he acknowledged under cross-examination, still existed. She remained, according to him, “100% too intoxicated”. Earlier, he had described her as “spinning and dry heaving”.

574Furthermore, I cannot accept that R.P. was ever in a “diminished mental state”. He knew exactly what he wanted. He was madly in love with H.J. – indeed, completely smitten with her. He went to KG’s barbecue hoping that she would spend the night with him, and they would have “alone time”. Even though she allowed herself to become somewhat inebriated and incoherent, he desired as always to be with her. His claim that he wanted to be away from her for trying to perform oral sex on him was, in my view, simply untrue.

575I also find that R.P. was inconsistent in how he described what H.J. did to him while he was sleeping. He told police in giving his statement only about how she was holding his penis when he awoke. He did not mention to police how she was moving her mouth toward his penis. To my mind, his failure to provide that important detail severely impacts his credibility in a negative vein.

576His believability is further strained by the fact he did not fidget or stir while H.J. was, in her uncoordinated, drunken state, unzipping his pants and negotiating his penis through the slit of his boxers to gain access to it. All the while, he did not awaken. R.P., on his own evidence and Cst. Corriveau’s, was virtually sober. He was not passed out or an insentient being.

577Nor did R.P. tell police he left the guest bedroom immediately after H.J. exposed his penis and tried to perform fellatio upon him. R.P.’s failure to mention the prompt action he took in response is not something a person concerned with the whole truth would leave out.

578Furthermore, if events had unfolded as R.P. would have this Court believe, he would have appreciated his rejection of her advances, at a time when she was self-loathing and entertaining thoughts of suicide, would likely have rendered her in an even more troubled mental state than she already was. Yet, according to him, he was so offended by what she had just done to him, he was prepared to leave her unwatched.

579Eighthly, R.P. knew of H.J.’s mental health history. He testified he took suicidal ideation seriously. Yet when he dropped her off at her brother G.J.’s place, he did nothing to warn him about her precarious emotional state, even though G.J. and he had had those types of conversations previously. If R.P. was as concerned about H.J. as he claimed, he would have wanted eyes on her still to ensure she was no longer considering self-harm, or he would have taken her elsewhere, to a counsellor or a clinician, as he had done in the past.

580R.P. instead chose not to speak to G.J. about his sister and the continued need for scrutiny of her, that Sunday morning, November 29, 2020, when R.P. dropped her off at home.

581Ninthly, and perhaps most significantly, I fully reject R.P.’s evidence that “he just wanted to make sure” H.J. was “okay”, when he was ordering her as her “boss” to attend work early the day after receiving her “first and final warning”. Instead, I find he was looking to gauge her intentions and to attempt to dissuade her from speaking to her superiors about recent events. His intentions were far more manipulative in nature. He did not want her to disclose to anyone the full scope and nature of their relationship.

582For the above reasons, I cannot and do not believe R.P. about what he testified happened of a sexual nature in the guest bedroom of K.G.’s house.

Does R.P.’s evidence raise a reasonable doubt?

583Part of the evidence given by R.P. which I do accept, is his denial that he carried or forced H.J. into his vehicle. I believe him when he says she offered no opposition to his suggestion to leave K.G.’s house. She may have been reluctant, but she was not compelled, in a physical or psychological sense, to go with R.P.

584What I can conclude most assuredly is that H.J. was quite intoxicated. It was time for her to leave. If anything, R.P. was fulfilling his promise not to let anything bad happen to her by taking her home.

585I believe him that he was originally intending to take H.J. back to her brother’s house. The plan changed after he picked up water for her at the Circle K store. He noticed she was mentally capable still of playing a game on her phone when he returned. If she sensed she was in any danger, or being held against her will, she had the means to call, text or email for help. She chose not to.

586Later at the RIDE program, the perfect opportunity arose for her to obtain assistance to get away from R.P., if she needed to. She did nothing to avail herself of it.

587Upon his release from the traffic stop, R.P. continued to criticize and chastise H.J. about the drama she was causing. I accept his evidence that her response was to question her own conduct, to conclude for herself that she “fucks everything up”, and to then threaten self-harm.

588R.P. was the source of support for H.J. in her time of crisis. He could be “super nice”. Her brother, G.J., in his own testimony, described himself as “not good at the whole consoling thing”.

589In sum, I readily entertain a reasonable doubt about whether H.J., either agreed to, or acquiesced in, R.P.’s suggestion to leave, and then later return to K.G.’s place. I believe R.P. that K.G.’s home was where he was intending to spend the night in any event.

590She could have left K.G.’s home after she entered the guest bedroom with R.P. as well, if she truly had wanted to.

591For this reason, I must acquit him on the unlawful confinement count.

592I find, of course, that his evidence does not raise a reasonable doubt about whether he sexually assaulted H.J. for the reasons I have set out above in squarely rejecting his evidence, as it touches upon that offence.

On the basis of the evidence which I accept, am I satisfied beyond a reasonable doubt in the guilt of R.P.?

593On my review of the evidence as a whole, I am not at all persuaded beyond a reasonable doubt that R.P. sexually assaulted H.J. by:

a) kissing her,

b) caressing her breasts, or

c) grinding his penis against her vagina while they were both clothed.

594There are number of reasons why I cannot accept the testimony of H.J.

595My assessment of the credibility and reliability of the account she gave of material events which transpired in the guest bedroom leaves me unsettled and unsure as to what really happened. Let me explain.

596I do not believe H.J. that she was “bridal carried” by R.P. at any point in time. Nor do accept her testimony that K.G. played any role in ejecting her from his household.

597In this regard, H.J.’s testimony was internally inconsistent. She stated she was grabbed off the couch by both R.P. and K.G. At the same time, she testified that K.G. would have intervened and prevented R.P. from removing her from the home, if she vocalized any opposition to leaving. K.G. would have allowed her to stay.

598While I accept that a few of her texts to R.P. demonstrate an unwillingness on her part to leave, after R.P. suggested they should, I find that H.J. must have, at a minimum, acquiesced to the idea of departing with him.

599A critical component of the texting between H.J. and R.P. on November 28, 2020, at K.G.’s place took on the tenor of ‘R.P. - protect me and take care of me, please’. She gave R.P. to understand that he was to “watch her back”. It was not open to H.J., in retrospect and in the face of such communication, to complain about what he then did in his judgment to ensure she would be taken care of. The action R.P. took to get her out of K.G.’s home was his way of discharging his duty and keeping his promise to her.

600I also disbelieve H.J. when she says that she was “in panic mode” and “just froze” at the RIDE program they encountered after they left K.G.’s house. She was not so intoxicated to be unaware of her surroundings. She appreciated what she needed to do, if she felt she were confined in any way against her will by R.P.

601I find that Cst. Corriveau would have helped H.J. at the drop of a pin, if H.J. had so much as hinted at the slightest distress, by being left with R.P. to drive away from the police stop in his truck.

602H.J. did nothing to help herself, because she chose not to. She was content, of her own volition at that point, to have R.P. drive her home, or to do what ultimately happened, return to K.G.’s place.

603I specifically reject H.J.’s evidence that she made no attempt at escape because, if she did, R.P. would just grab her. He surely would not have been stopped her from exiting his vehicle in the presence of police.

604It must be remembered that H.J.’s desire to leave the vehicle, on her own evidence, pre-existed R.P.’s change of mind about dropping her off at her brother’s residence.

605It is troubling to me as well the failure on the part of H.J. to seek any form of assistance via text or email from K.G., her brother, G.J., or whomever, if she was made to feel uncomfortable in any way by R.P.’s conduct.

606I base this finding by no means on any unfounded notion regarding how a sexual assault victim is supposed to act. Those opportunities to seek help existed, on her version of events, well before anything of an unwanted, sexual nature was done to her by R.P.

607Most significantly however, under cross-examination, H.J. acknowledged that she was lying to R.P. on important matters of the heart. She was prepared to give him false hope that they could rekindle their relationship. She offered that they could “try again” when they were both doing better. Her text to that effect was sent just a day prior to their attendance at K.G.’s barbecue. In doing so, she conceded she was being dishonest. All the while, her real desire was to be rid of R.P.

608H.J. was the woman who told R.P. too she missed him, when she did not. She told him he was a “great man”. That declaration was untrue as well.

609It is difficult as a result to believe H.J. on critical components of what she testified happened to her in the guest bedroom. Although honesty would have been harder, H.J. simply could not muster the courage to tell R.P. that she wanted to end the relationship between them. It betrayed, in my view, a slight state of ambivalence as to the future of their affair in her own mind.

610In sum, by texting to R.P. things she did not mean, H.J. demonstrated an unsettling capacity for deceit. She was not a woman of her word.

611I make little of H.J.’s lack of recollection of having touched R.P.’s penis. It was by no means the intended act of fellatio R.P. attributed to her, and about which he testified. I find nothing like that happened.

612On a much smaller note, I disbelieve H.J. on her evidence that her offer to bring R.P. food at the hospital, while he was seeking treatment for his injured hand, was not genuine. I find she would have gone to him with food, if he had asked.

613She further lied to her own brother, G.J., too about the nature of the relationship she shared with R.P., even though she had been pointedly questioned by his spouse and him about the full extent of what was going on between R.P. and her.

614Although H.J. may have had reason to be dishonest with her sibling, for example, embarrassment or regret for having engaged in an affair with an older married man, at that vulnerable point in her young life, she was clearly prepared to mislead G.J., her sister-in-law and R.P., when, to tell a lie in the moment, would meet her needs. I cannot therefore safely rely on the evidence of a witness such as H.J.

Conclusion

615Crown and defence counsel adduced much viva voce evidence referring both H.J. and R.P. to their exchange of texts between November 27 and December 3, 2020. To the extent that they were proffered for a legitimate purpose, such as

a) drawing to the Court’s attention a prior inconsistent statement,

b) offering a reflection on the mental state of either H.J. or R.P.,

c) undermining the reliability of one or the other’s evidence due to their state of intoxication, or

d) demonstrating the power imbalance between them as members of the military of differing ranks,

they were admissible pieces of evidence. Otherwise, the texts spoke for themselves. Where H.J. or R.P. tried to put a new interpretation to what they meant, I gave that testimony zero weight.

616On another note, I am compelled to pause and reflect on how the texts are testament to a generation where electronic exchanges of spontaneous thoughts or feelings are preferred over face-to-face dialogue. It is sad.

617Having reviewed all the evidence adduced at R.P.’s trial, I conclude that what H.J. alleged the accused did to her – unlawfully confining her and sexually assaulting her - could have happened. I simply cannot be sure it actually did.

618For all the above reasons, I must find R.P. not guilty of sexually assaulting and unlawfully confining H.J. between November 28 and 29, 2020.

DATED: March 28, 2024

March, M.G., J.

Endnotes:

A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

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.

Footnotes

1. 1RIDE [Reduce Impaired Driving Everywhere] is an acronym used by police services in Ontario to describe a sobriety monitoring program begun in 1977 to randomly stop motorists in order to ensure they are not operating a vehicle while impaired by alcohol or drug to any degree.
2. 2R. v. W.(D.), [1991] 1 SCR 742 (see para 143)