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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
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-
J.C.
Before Justice M. G. March
Trial Evidence Heard on October 23, December 18, 2023, January 8, 9, 11, 15, & February 14 Counsel Submissions Heard on March 25, 2024
Reasons for Judgment released on July 17, 2024
Mariah Calamai……………………...……………………...Counsel for the Provincial Crown
Gavin Johnston……….………...……………………………………………….Counsel for J.C.
Introduction:
[1]. The accused, J.C., stands charged that between December 1, 2021 and March 31, 2022 in the Township of Laurentian Valley, Ontario, he did:
a) breach a condition of his probation by being within 100 m of any place where M.B., his former girlfriend, lived contrary to section 733.1(1) of the Criminal Code of Canada (“the Code”) – Count 1,
b) commit a sexual assault on B.D. contrary to section 271 of the Code – Count 2,
c) breach a condition of his probation by failing to keep the peace and be of good behaviour contrary to section 733.1(1) of the Code – Count 3,
d) commit a sexual assault on B.D. contrary to section 271 of the Code – Count 4,
e) commit a sexual assault on B.D. contrary to section 271 of the Code – Count 5,
f) commit a sexual assault on B.D. contrary to section 271 of the Code – Count 6,
g) in committing an assault on B.D., use a weapon, specifically a cell phone charger, contrary to section 267(a) of the Code – Count 7,
h) failed to comply with a condition of a release order by possessing a weapon contrary to section 145(5)(a) of the Code – Count 8,
i) in committing an assault on B.D., use a weapon, specifically a TV remote control contrary to section 267(a) of the Code – Count 9,
j) breach a condition of his probation by possessing a weapon contrary to section 733.1(1) of the Code – Count 10,
k) utter a threat to B.D. to cause bodily harm to her contrary to section 264.1(1)(a) of the Code – Count 11,
l) wilfully cause unnecessary pain and suffering to B.D.’s dog contrary to section 445.1(1)(a) of the Code – Count 12, and
m) commit an assault on B.D. contrary to section 266 of the Code – Count 13.
[2]. Through his counsel, J.C. admitted, at the beginning of his trial, the complainant B.D.’s ability to identify him as the accused before the Court. He also acknowledged the jurisdiction of the Court to hear the case against him. He conceded as well that he was bound by valid probation and release orders of the Court over the time frame for which his charges were alleged to have occurred.
[3]. On consent of the defence and at the Crown’s request, I amended the thirteen count Information before the Court during the trial to expand the period for two of the sexual assault offences in Counts 2 and 4 as allegedly having occurred between November 2021 to March 2022 to conform to the complainant B.D.’s evidence. I also deleted the surplusage, “by throwing it in a cage and not providing food and water” in Count 12 alleging a cruelty to an animal offence.
[4]. At the close of the Crown’s case, the defence brought an application for a directed verdict with respect to one of the sexual assault and one of the assault with weapon charges. On consent of the Crown, I granted the application.
[5]. During final submissions, defence counsel informed me, and the Crown agreed, that there was no evidence to support a conviction in respect of the alleged assault. Accordingly, I dismissed that charge.
[6]. J.C.’s trial proceeded, like so many others in this overtaxed, under-resourced jurisdiction, where sex assault trials are constant and unrelenting, over the course of eight, disjointed days.
[7]. As usual, the outcome of this case turns primarily on an assessment of the credibility and reliability of the witnesses called to testify.
The Relevant Evidence
B.D.
[8]. When B.D. began giving her evidence on October 23, 2023, she was 19 years of age and living in Almonte, Ontario.
[9]. She explained that she moved to the Pembroke area in 2021 where she resided in a two-bedroom apartment with another young woman, S.K. She had been studying at Algonquin College, but she dropped out and began working at Tim Horton’s.
[10]. While in Pembroke, she came to know J.C. through S.K. and other mutual friends. At that point, J.C. and S.K. were in a boyfriend/girlfriend relationship. Later, he broke up with S.K.
[11]. B.D. eventually moved out of the apartment in December 2021 and into a residence in Laurentian Valley Township, Ontario with J.C., and his roommate, M.H. She paid her rent to M.H. Roughly a month later, J.C. and she began to date.
[12]. B.D. testified that J.C. did not work. She described him as having “anger issues”, which she noticed two to three weeks into living at the same residence together. Notwithstanding, she thought that by dating him she could “smooth things over”.
[13]. As examples of his irritability and controlling behaviour, B.D. offered that if she wanted to hang out with her friends or see her family, she would have to “okay it” with him. During Christmas 2021, she only saw her family for a very brief period before J.C. came and picked her up.
[14]. If she complained about him taking her car and using her gas, he would get angry. She would end up giving him gas money to avoid a fight.
[15]. On occasion, he would yell at her and sometimes she would yell back. He would periodically throw things at her or kick her dog.
[16]. She lamented that when she lived in Pembroke, her social circle was small. It consisted mainly of J.C. and his friends.
The Phone Charger Incident:
[17]. B.D. testified that one time J.C. threw a charger block at her head as hard as he could. It did not hit her. She moved out of the way. It happened during the winter.
[18]. Later, he came into her room again and threw something at her head, but missed, as he was mumbling to himself. She then closed the door and locked it.
[19]. When she resumed giving her evidence on December 18, 2023; however, she stated that the phone charger hit her.
[20]. She recalled that M.H. and J.C. spoke and “got into a fight” over the charger being thrown at her. J.C. began “hitting walls”. Her anxiety “got bad” and she went outside for a walk.
[21]. B.D. could not recall any other incidents of physicality besides the phone charger. He only threw the charger and “other stuff’ a couple of times. There were, however, instances where J.C. threatened her.
Kicking B.D.’s Dog:
[22]. B.D. gave evidence that she has a dog named B. Her pet was only a couple of months old, a puppy, when she moved in with J.C. and M.H. She was solely responsible for caring for it.
[23]. She had a crate for the dog in her room. The puppy was not fully potty trained. From time to time, B. would stay under her bed.
[24]. On one occasion, she happened upon J.C. kicking her dog “as hard as he could”. He was wearing work boots at the time. He delivered the kick to B.’s side. On a scale of 1 to 10, she placed the kick as at a 7 or an 8.
[25]. The dog limped for the day thereafter. She noticed B. did not like men for a long time afterwards as well.
[26]. She also witnessed him kick a cat and abuse another dog in the household named A.
[27]. She remembered that it was at the end of December 2021 or the start of January 2022 when he kicked her dog. She was outside shoveling snow.
[28]. She stated that it was “constant abuse” to the animals after that.
[29]. She explained that she did not bring B. to the vet as a result of the kick. However, she did bring her dog for its regular shots.
J.C. Threatening B.D.:
[30]. B.D. testified that one day, while cooking around suppertime, after she found out she was pregnant, J.C. opened the knife drawer and said:
“I could take care of two of my problems now”.
[31]. His comment scared her. It made her feel really “worried” and “anxious”. He had already told her multiple times before that she should get an abortion.
[32]. In response, she told him what he had said was “not cool”. She took her food to her room and spent the night in the company of friends.
[33]. She went on to explain that she had taken a home pregnancy test a couple of weeks after February 19, 2022. She shared with J.C. the result.
[34]. On other occasions, more than a handful of times which B.D. was aware of, he had exclaimed to others and her:
“If I’m going back to jail, it may as well be for murder.”
[35]. B.D. could not remember any more threats other than the one involving the knife, and the times where J.C. brought up “murder” as the only way he would go back to jail.
Breaches of Probation and Release Orders:
[36]. B.D. was aware of a former relationship that J.C. had with M.B. Although B.D. never met M.B., J.C. told her M.B. and he had “a little girl” together.
[37]. B.D. also knew where M.B. lived. B.D. believed M.B.’s apartment was located above a pawn shop at the rear of the building on the main street in downtown Pembroke.
[38]. While B.D. and J.C. were a couple, they would often visit with their friends, R.F. and J.F., who resided in an apartment at the front of the same building. However, due to J.C.’s condition not to be within 100 m of M.B., R.F. and J.F. would come more often to B.D. and J.C.’s place to socialize.
[39]. Nevertheless, there were times when M.H. and J.C. would drive along the main street in Pembroke past M.B.’s apartment in violation of the 100 m radius J.C. was to respect in connection with her residence. J.C. would tell M.H. it was faster to take this more direct route. J.C. would then just “duck down”. M.H. would tell him when it was “all clear”. On a couple of these occasions, B.D. would be with J.C. and M.H. in the vehicle to witness what was occurring.
[40]. B.D. remembered that J.C. was enrolled in anger management as well, but he considered it “a joke”.
B.D.’s and J.C.’s Breakup:
[41]. A few days before she moved out of the residence she shared with J.C. and M.H., B.D. and J.C. broke up. As B.D. put it, “We both knew we were not together anymore.”
[42]. One of the events preceding B.D.’s decision to end the relationship involved J.C.’s treatment of a mutual friend, J.B. According to B.D., J.C. was to help J.B. after J.B. lost belongings and pets in a house fire. J.B. texted B.D. to tell her he was “still mad” about J.C. not showing up to assist him as promised. In response to being told what J.B. felt, J.C. said to B.D., “I don’t care.”
[43]. J.C. then began to drive erratically with B.D. in the car as his passenger. He stated again, “If I go back to jail, it’ll be for murder.”
[44]. B.D. recalled that J.C. almost put the car in the ditch.
B.D.’s Decision to Move Out:
[45]. In explaining how they came to share a room together, B.D. remembered that one day in mid-March 2022, she came home to the residence to discover J.C. had moved his things into her room. She was uneasy about allowing him to be in there with her. As she put it, “That was my safe space.”
[46]. J.C.’s unilateral decision to share a room with B.D. coincided with another woman, T., coming to live with them. B.D. thought J.C. would stay in the laundry room as a result of a fourth person now staying in the house (i.e. M.H., J.C., B.D. and T.).
[47]. On the day B.D. decided to move out, she texted her cousin to say she no longer felt safe in the home. She asked if he could come get her.
[48]. She then began packing her things; however, J.C. went into their room and locked the door. He said he would kill them if they went into his room. B.D. called the police as a result.
[49]. As she was leaving, J.C. got in her way. He was yelling at her. She was yelling back.
[50]. J.C. punched a hole in the wall next to her head. His hands came “pretty close” to her. She could hear it as it went by her and damaged the wall behind her. He also punched a hole in the dresser. He was still punching at it when she returned inside.
[51]. On the advice of her cousin and his girlfriend, B.D. did not go back in the house thereafter.
[52]. Their other female roommate, T., as B.D. put it, “heard everything.” She locked the door to her room. B.D. explained that whenever J.C. and she fought, T. would text her to ask if she was doing okay.
[53]. When the police arrived, they tried to speak to J.C., and they eventually enlisted M.H.’s assistance to reason with him.
Bonfire No. 1:
[54]. In reflecting back on the commencement of intimacy in their relationship, B.D. remembered attending a bonfire at J.C.’s and M.H.’s house before she moved in with them. She was drinking a lot, and as she put it, “over the limit I could handle”.
[55]. During the evening, J.C. was making advances on her. B.D. went along with it. They went to his bedroom and had sexual intercourse.
[56]. Beforehand, while laying in bed, B.D. told him she was “too drunk”. She did not want to have sex at that moment. She felt intoxicated and extremely drowsy. She could not walk straight. On a 0 to 10 scale of sober to inebriated, she placed herself at a 7.
[57]. He was drinking as well, but she was uncertain as to how much.
[58]. Candidly, she testified that she did not really remember parts of the night. Due to her alcohol consumption, there were gaps in her memory. She just woke up the next morning to discover that J.C. and she had had intercourse.
[59]. She was not sure how much she had to drink. She estimated it was more than 8 to 9 alcoholic beverages, because after exceeding that amount, she would “black out” or “pass out”.
[60]. She did, nevertheless, remember telling him that she was too drunk.
[61]. She did not recall what she was wearing when she went to his bedroom, but she did recollect that when she woke up the next day, she still had clothes on.
[62]. Upon awakening, she explained she was in no shape to drive her friends home, who had accompanied her to the bonfire. She was “hung over” and vomiting.
[63]. Her friends began to joke about J.C. and her having sex. She asked them, “Did we?” That is when J.C. showed her a used condom. B.D. gave evidence that she did not know whether to believe him or not. She was confused. She could not remember.
Bonfire No. 2:
[64]. About a week later, B.D. recalled that J.C. and she engaged in sexual intercourse again. On this occasion, it was only M.H., J.C. and her at the bonfire in the backyard of their house.
[65]. She explained that M.H. went inside early because he was sick. He did not want to be out in the cold.
[66]. B.D. remembered that she was more intoxicated than J.C. She reckoned that she had 9 to 10 alcoholic drinks, but she did not feel as intoxicated as the first time they had sex. On a 0 to 10 scale of soberness to inebriation, she placed herself at a 6 or 7. She stated she could nevertheless remember most of the night.
[67]. Notwithstanding, at one point, she ran to the bathroom to throw up. J.C. followed and stayed with her.
[68]. J.C. then initiated the conversation regarding sex. He told her he wanted it. She recalled she told him at least three times that she was too tired. She testified that she probably otherwise wanted to, but because she had been drinking, she did not. In response, he would say “come on” or “please”.
[69]. She began feeling scared and intimidated. She did not want to say no because she was in his home. She was just laying on her back. He got on top of her. As she put it, “I just caved”.
[70]. She saw him take a condom out of its package, but she did not know if he used it or not.
[71]. When she testified on January 8, 2024, she stated she remembered waking up to him just starting to have sex with her, and he showed her the used condom to prove he did it even though she did not want to.
[72]. She then explained that she had gaps in her memory because she drank so much, she blacked out and fell asleep. Later while giving her evidence, she corrected herself. She explained that she “got mixed up”. The used condom was involved on the first occasion they had sex after the bonfire.
[73]. After the second instance of nonconsensual sexual intercourse following a bonfire, she sat in the bathroom talking to her friend, E.D. She told her what had happened. B.D. ended up going to her friend’s place.
February 19, 2022 – The Pregnancy:
[74]. B.D. testified that she has a one-year-old child, J., who was born on [...], 2022. J.C. is his father. B.D. added that J.C. has other children as well, but he is not permitted to see them.
[75]. B.D. went on to relate that her pregnancy with J. was not planned. When J.C. and she had sexual intercourse, she always wanted a condom to be used. She was not on any other form of birth control. They both agreed to that type of contraceptive.
[76]. She believed that she conceived their son, J., on February 19, 2022. Earlier in the day, they had had a lot of arguments. Later, while they were in bed, he was playing games on his phone. He then began to look at videos of his other children. He told her he wanted to have kids with her. She responded that she was “too young”.
[77]. J.C. persisted and was not taking no for an answer. Eventually, he got on top of her. He was pleading with her that she engage in intercourse with him, and that she “give him a kid”.
[78]. B.D. agreed to have sex with him, but only if he used a condom. Otherwise, she was not interested.
[79]. He was on the left side of the bed facing his TV. She was on the right side. She did not feel as though she could leave.
[80]. Through the entire course of their relationship, she did not feel as though she could go. She was not talking to her parents at all at the time.
[81]. She felt exhausted after all the arguing. He got on top of her and started undressing her. She kept saying no, but he continued, and she “gave up”. She just “froze” because of her anxiety. She was scared, anxious and having panic attacks at that point.
[82]. He was not saying anything. He ejaculated inside her. She laid there until he got up to go talk to someone else in the house.
[83]. She was not sure if she had taken any nonprescription drugs that night. J.C. had obtained pain medication for her from his friend. She had a cyst that she needed to have lanced. It was painful.
[84]. When she did take the medication he obtained for her, she would feel drowsy and sleep more than normal for her over a period of two to three days thereafter. She was not sure when she last took that medication before February 19, 2022. She estimated it would have been three or four days prior. She also took medication once daily for her panic attacks, and a second type for whenever she was experiencing one. She could not remember the names of the medications.
[85]. She knew that J.’s conception occurred that night, but she was not sure specifically as to what time. She remembered that she had gone to bed because she had to work the next day. He had earlier moved all his things into her bedroom, because he had given his own room away to T. a week or so before.
[86]. For two to three weeks after the conception, she felt sick every day. She then took a test at her friend’s house. It indicated a positive result.
[87]. She told J.C. about the pregnancy later that day when she arrived home. He was happy and excited, whereas she was terrified. She communicated those feelings to him. She was still in a relationship with him at that point. However, she did not feel as though she was entitled to an opinion on what to do about her pregnancy.
[88]. B.D. felt as though she should move home with her parents, because she had no way to support a child. When she told J.C. this, he said he would try to take the child from her if she left.
[89]. B.D. stated that there was at present no family litigation underway. J.C. does not pay her any child support, nor has he requested any parenting time with J.
[90]. After February 19, 2022, B.D. testified that she felt “alone”, “terrified and anxious”. She was upset with herself for the “choices” she had made. She felt as though she should have stuck up for herself, but instead she froze.
[91]. She believed that the relationship she shared with J.C. lasted only a short while after the conception, maybe just another week or week and a half following the unprotected sex.
[92]. Nor did she think that they even had sex again afterwards. She distanced herself from him.
The Delay in Reporting the Incidents to the Authorities:
[93]. B.D. commented that she did not report what J.C. did to her immediately because his friends and he had told her that no one would believe her or listen to her. Although she moved out in March 2022, she ventured that she did not speak to the police until a couple of months later in May.
[94]. She explained that she only realized when she went home to her parents how wrong it was what J.C. had done to her. She did not speak up until she was living back in Almonte.
The Quality of B.D.’s Recollection:
[95]. When B.D.’s cross-examination began on January 8, 2024, she agreed with the proposition put to her by defence counsel that memory does not improve with time. Indeed, it begins to fade as time goes by.
[96]. She added that her anxiety affects her memory as well. She “zones out” during anxiety attacks. They cause her to freeze too. She has a “tough time” thinking and recalling accurately when she is anxious.
[97]. Of course, alcohol affects memory as well and can lead to blackouts. One can appear fully conscious and do something, but then not remember it at all.
[98]. She conceded that she was advised not to drink alcohol when taking her antianxiety prescription medication. She was taking daily her pills to prevent anxiety attacks during the period of December 2021 to March 2022, although she may have missed a day here and there. She did not discontinue use of the medication until she learned of her pregnancy around the end of February or the beginning of March 2022.
[99]. She acknowledged that she confused the first and second bonfire incidents in respect of when she was shown the used condom. On both occasions, she went inside to lay down on J.C.’s bed. He followed her and she could not remember much thereafter.
[100]. She could not recall having sex or wanting to. Nor could she remember the specific dates. She estimated that there was roughly only a week or two between the bonfires in question.
[101]. Overall, she agreed that it was fair to say that she was piecing things together and rationalizing to fill in the gaps. Anxiety, alcohol and the passage of time were the cause.
Bonfire No. 1:
[102]. B.D. confirmed that she was not living with J.C. and M.H. when she attended a bonfire at their home and later engaged in sexual intercourse with J.C. She agreed that there was no reason to head inside other than that the evening itself was coming to a close.
[103]. She did not know what her behaviour was like when J.C. and she were in the bedroom together. When he proposed having sex to her, she could have said “sure”. She knew who he was. Although she did not remember having sex with him, or wanting to, she agreed it was possible that, in the moment, she wanted to. She simply does not remember, and there are large gaps in her memory of the event.
[104]. She did not provide any details about the sexual act itself, for example, how long it lasted or the positions they assumed.
[105]. She was sure that they were joined in the room afterwards by his friend, J.F. and her friend, E.D. Their friends were making jokes about what J.C. and she had been doing.
[106]. She disagreed that J.F. left J.C.’s and M.H.’s home earlier than 6 AM. She believed J.F. could not leave until J.C.’s curfew had lifted and only then could J.C. drive J.F. home.
Bonfire No. 2:
[107]. Regarding the second instance of J.C. having nonconsensual sexual intercourse with her, B.D. acknowledged that she used the word “cave” when she testified on December 18, 2023, about acquiescing to sexual activity with him. However, while giving her evidence on January 8, 2024, she could not remember the conversation she had with him in the bedroom, or even if they had one. She could have said, “sure”, “fine” or “whatever”. In other words, it was possible he did ask to have sex with her, and she agreed. She had been drinking to excess.
[108]. Furthermore, she had no memory of any sexual acts in which they engaged on that occasion, or whether a condom was used.
[109]. She agreed her recollection of the event was “all over the place”. She explained that she had a lot going on in her life. She was trying to put things behind her or set them aside, so that they were not at the forefront of her mind. She adopted defence counsel’s suggestion that doing so likely caused her memory of the event to change.
[110]. She was reminded by defence counsel that she told police she went inside to care for her dog. However, she testified only about going inside to throw up. She maintained nevertheless that she went to the bedroom and passed out. Then, as she put it, “he went ahead with it”.
February 19, 2022 – The Pregnancy:
[111]. Around the time B.D. believed she conceived J., she remarked that J.C. had been quite affected by his friend J.B.’s struggles owing to the house fire. J.B. had lost not just property, but his animals as well.
[112]. After telling J.C. about how J.B. was upset with him for not showing up to assist him, B.D. described herself as “super anxious”. J.C. and B.D. were lying in bed together. He was playing on his phone looking at videos of his “other babies” that he was not allowed to see.
[113]. B.D. stated that J.C. wanted her to have his baby. He told her, “I want you to be pregnant.” He made no offer to “pull out”. He kept begging her. She told him no repeatedly. She replied she was too young. It would be “okay” if he used a condom to engage in sexual intercourse, but if he did not wear one, it was not. When she saw that he was not wearing a condom, she did not want to continue.
[114]. Defence counsel reminded B.D. that in her statement to police on May 17, 2022, she told the police interviewer that J.C. had offered to “pull out”.
[115]. B.D. gave evidence that he proceeded to have unprotected sex with her anyway. She was always saying she did not want to do it. Notwithstanding, he took her pants off. She believed her shirt stayed on. She froze in the moment from anxiety. She was laying on her back. He got on top of her in the missionary position.
[116]. The act of sexual intercourse only lasted until he “finished”. She believed it took longer than three to five minutes. She had asked him to please get off of her at the start, but halfway through, she just stopped talking.
[117]. Afterwards, she went to the bathroom sitting there with her dog. She cried, but during the intercourse, she felt “anxious”, “stressed” and “frozen”.
[118]. She offered that it was an extremely emotional day for him, but he was not screaming or yelling at her during the act itself.
[119]. Defence counsel reminded B.D. of what she said in her statement to police on May 17, 2022. When asked by the officer interviewing her who undressed who, she answered, “I got undressed myself.” She added that she thought it was just going to be “normal”. What she meant by “normal”, was that he would use a condom.
[120]. Further, she told the police interviewer, “So I just thought this would be another night. So, I was like, yeah, okay, well let’s do it.” When pressed by defence counsel that she had testified earlier that J.C. was “begging”, B.D. clarified that the “begging” was in reference to his request that she have his baby.
[121]. She also had no memory of J.C. screaming at her preceding or during the act of sexual intercourse itself. It was then drawn to her attention by defence counsel that she told police:
“He kept begging me and I kept begging him to stop. And eventually he just got mad and started screaming at me while he was on top of me.”
[122]. When probed further by defence counsel on the issue, she stated, “My memory is different today.” She added that she had told him nevertheless “a million times, no.”
[123]. On the issue of birth control, when the police interviewer asked her if she was on it between December 2021 and March 2022, B.D. answered that she could not recall the specific dates, but she was on it when she first met J.C. However, she was not sure when she stopped its use.
[124]. She could not remember any specific health issue she was having to cause her to discontinue its use. The problem was not always being able to afford it. She went to a clinic in Pembroke to have it prescribed to her.
[125]. When she became pregnant, B.D. thought that her due date would be November 18, 2022. She was sure that her conception date was February 19, 2022, because her son was born on [...], 2022. She believed she carried him for 41 weeks. She therefore disagreed with defence counsel’s suggestion that the dates did not “line up”. She carried J. longer than 40 weeks - the normal human gestation period.
[126]. She disagreed with defence counsel’s suggestion that J.C. was in such an emotional state about what happened to his friend J.B. that he was uninterested in having sex with her.
The Phone Charger Incident:
[127]. In revisiting what happened with J.C.’s phone charger, B.D. clarified that he blamed her for losing it. When she found it, she wished to deliver it back to him. She opened the door and threw it on his bed. She then took a couple of steps back and froze, because he was yelling at her.
[128]. He then “chucked” it at her and it hit her in the arm. She simply picked it up and left it at his door.
[129]. She acknowledged that when she gave her evidence on October 18, 2023, she said the charger missed her when he threw it at her. She agreed that she was remembering it differently while testifying almost three months later on January 8, 2024.
[130]. B.D. agreed that the relationship she shared with J.C. was a tumultuous one. He has “ a temper”, and she has “a bit of one too”.
Kicking B.D.’s Dog:
[131]. B.D. gave evidence that J.C. kicked her dog on several occasions, but the one which she specifically remembered and which she testified about as having happened, was in the lead up to Christmas 2021. She wanted to go home and spend time with her grandmother. J.C. refused to allow her to go if she did not help with shoveling snow.
[132]. He kicked her dog when he was coming inside. She remembered that the dog was just a small puppy, roughly two months old at the time. She denied that all J.C. did was simply guide the dog out of his way using his feet.
[133]. Equally, she agreed that if J.C. had kicked the dog hard, he would likely have hurt her. She was just a small dog at the time. She neglected to tell police that J.C. kicked the dog after they had been shoveling snow. He was wearing construction boots at the time.
[134]. She reemphasized that he had kicked the dog on multiple occasions, but the dog suffered no lasting injury. As B.D. put it, “she was fine”.
[135]. B.D. did not bring the dog, B., to the vet. B.D. only brought the dog to the vet on one occasion for her immunizations. B.D. never brought her there for an emergency visit. However, B.D. kept a close eye on her pet after the kick.
J.C. Threatening B.D.:
[136]. Under cross-examination, B.D. allowed for the possibility that when J.C. said he could stab her and take care of two of his problems right now, he did so jokingly. She agreed he had a “dark sense of humour”. However, at the time he said it, it did not sound to her like he was joking because of the topic he raised.
[137]. She believed that he said what he said as a “scare tactic” to intimidate her.
[138]. In describing the mechanics of what J.C. did, B.D. recalled that he opened the utensils drawer and touched the knife. As she put it, “He kind of put his hand on the knife and started to pull it out”. At the time he did this, he was on the same side of the stove as she was at the counter.
[139]. She agreed that she could not remember his exact words. Nor could she recall what they were talking about at the time before he said what he did. She acknowledged that she was suffering from severe anxiety at that point in time. She conceded to defence counsel’s suggestion that the anxiety could “colour her world”.
[140]. She was clear that he did not take it out and put the knife to her body. Nor did he leave it around.
[141]. Defence counsel then reminded B.D. what she said to police in giving her statement. She told police he “ . . . used to hold a knife to my stomach”.
[142]. She agreed that what she told police was different than what she had given in evidence in Court. She also acknowledged that if he had ever held a knife to her stomach, she would have remembered.
[143]. She confirmed that she essentially gave three differing versions with respect to the knife:
a) firstly, that he held it to her stomach,
b) secondly, that he held the knife up with the utensils’ drawer open, and
c) thirdly, that he only had his hand on the knife in the drawer.
[144]. Nevertheless, the threats, she maintained, were made.
Breaches of Probation and Release Orders:
[145]. Regarding the breaches of probation and release orders over the course of their relationship, B.D. confirmed that whenever they went by J.C.’s former partner M.B.’s apartment above the pawn shop on the main street in Pembroke, it was M.H. who was driving. By contrast, if J.C. were driving himself, he was careful about where he parked. He tended to park at the building across the road from the Giant Tiger outlet downtown.
[146]. When M.H. was the driver, he would, on occasion, take the main street. He insisted it was faster to get to his intended destination.
[147]. B.D. recalled several times when she was on the phone, once with J.C. and the other with M.H. She was driving behind them, but she did not recall the exact dates. However, she could see that J.C. was going within the radius he was not supposed to in passing by M.B.’s apartment.
[148]. She agreed with the suggestion put to her by defence counsel that her memory regarding these incidents was “poor”. However, B.D. was clear that J.C. would never violate his radius condition whenever he was the driver himself.
B.D.’s and J.C.’s Breakup:
[149]. B.D. testified that she could not recall the exact day that J.C. and she broke up. She believed it was more than a week or two before she moved out of the home that she was sharing with M.H. and J.C. However, she could not be one hundred percent sure. She denied that it was the day of the actual move.
[150]. She placed the timing of the end of their relationship closer to when she received a text from their friend, J.B. They said to each other that they were “done”. This happened before the car ride home when B.D. told J.C. about J.B.’s text, and his disappointment at J.C.’s failure to come help after the house fire.
[151]. Defence counsel then reminded B.D. of what she told police. In her statement, she indicated that they had “essentially broken up, but just not said it”. She agreed that what she indicated to police was different from her testimony in Court.
[152]. Nevertheless, she maintained that, upon arriving home, J.C. began yelling at her. She began gathering things from their room to move out. In one of her trips in and out, she stepped on one of his video games. He got mad.
[153]. He walked to the doorway of the bedroom. She pleaded with him to let her go. In response, he punched the dresser and a hole in the wall in that order, she believed. The punch to the dresser was delivered with such force that the snake tank placed upon it moved. He broke her dresser. She told him he was “an idiot”. It was then that he came over toward her and punched a hole in the wall.
[154]. Next, he ordered her out of their room and told her he would kill her, if she opened the door and came in again after she left it. Via text, her cousin advised her to leave the house and call the police. She did so.
[155]. She testified that she required the assistance of police because J.C. was “getting aggressive”. She needed the officers’ help to get her things out of their shared residence.
[156]. She explained that the day’s events brought back a lot of emotions for her. She was just a little confused trying to remember.
[157]. When police arrived at the house, he had locked himself in their room. She could not remember if she told the officers about him punching a hole in the wall. While they were on scene, she was “bawling her eyes out”.
[158]. She agreed that when she testified on an earlier date, she had said that J.C. punched a few holes in the wall. However, she acknowledged that in the moment, she could only remember the one punch to the wall beside her.
[159]. She recognized as well that the sequencing of which was punched first, the dresser or the wall, was different than when she had earlier given her evidence. She confirmed as well that she told police that he punched both his own dresser and hers, but while testifying, she could only remember him punching his dresser and the wall.
[160]. She agreed that each time she testified about the incidents, her evidence was changing regarding the events. She believed it could be due to her anxiety that she was remembering things differently. She did not recall being offered the assistance of Victim Services by the officers who attended on scene.
[161]. In an Agreed Statement of Facts filed as Exhibit 1 at J.C.’s trial, Crown and defence counsel set out the following admissions for the Court’s consideration:
a) a call to police for service was made on March 18, 2022 from B.D.’s, J.C.’s and M.H.’s shared residence, wherein the caller stated B.D. was attempting to move out, but J.C. was blocking her ability to do so,
b) the call for service also indicated J.C. had punched the wall beside B.D.,
c) Constables Trottier and Roddy were first on scene; Constable Russell attended later and had little further involvement,
d) the officers arrived on scene for the purpose of investigating a domestic occurrence,
e) the officers observed the residence to be in a state of disarray and damaged throughout; they saw holes in the wall of J.C.’s bedroom, but they could not ascertain when the holes were created,
f) Constable Trottier spoke to B.D. who was described as very emotional; however, the tension eased for all parties with the police arrival on scene,
g) at all times, police were bound by their domestic violence policies and had a duty to investigate the occurrence as such; they provided B.D. the opportunity to contact Victim Services, but she declined, and
h) J.C. and M.H. vacated the scene while B.D. packed up her belongings and left.
B.D.’s Reasons for Going to Police:
[162]. Even though J.C. and she did not get along well, B.D. acknowledged that she did ultimately decide to keep the child she had with him. She recognized that one of her primary duties as a mother was to make sure her son, J., was “safe, healthy and happy”.
[163]. In her statement to police on May 17, 2022, she wondered aloud whether “ . . . this would be enough proof, hopefully that he wouldn’t get custody”.
[164]. B.D. expressed this concern to police because J.C. had told her, “When I had this kid he was going to, no matter what, find a way to take it.” She affirmed for the police interviewer, that is “ . . . not really what I want”. She had no desire to allow J.C. the opportunity to meet their child after he was born. As she testified, she had just gotten out of a “rough situation” with J.C.
[165]. Nevertheless, she maintained that she did not make any of this up, nor was she lying at all. Her evidence was not designed to keep J.C. from seeing J.
B.D.’s Alcohol Consumption:
[166]. B.D. denied that she was an alcoholic or had any issue with alcohol over the relevant time frame. She explained that she worked a lot and could not drink “that much”.
[167]. She allowed that she did drink to excess during the bonfire events. However, she was not drinking on February 19, 2022, when she believed her son J. was conceived, nor the day she moved out of the residence she shared with J.C. and M.H., nor when she was driving downtown either behind the vehicle in which M.H. and J.C. were in, or while she was one of their passengers.
Re-examination:
[168]. Under re-examination, B.D. remembered that following the first bonfire where J.C. and she engaged in sexual intercourse, she remembered it beginning with J.C. putting his penis in her vagina. Penetration occurred, she insisted, but she could not remember their position.
[169]. She closed her eyes and woke up afterwards. She later learned what had occurred.
[170]. Regarding the second bonfire, she remembered getting out of bed running to the bathroom to throw up. This happened after J.C. and she had engaged in sex.
[171]. On both bonfire evenings, she was taking her anxiety medication and drinking alcohol. She identified the side effects of having combined alcohol with her prescription medication as fatigue and drowsiness.
[172]. As far as the instances where she was driving with M.H. and J.C. within a prohibited radius of M.B.’s apartment, she recalled that M.H. would suggest that it was faster to drive along the main street in Pembroke. In response, J.C. would suggest he could “duck down”. J.C. did not object to M.H.’s intention to drive the faster route.
E.D.
[173]. When E.D. testified on January 11, 2024, she was 20 years of age. She got to know B.D., she explained, while they were coworkers at Tim Horton’s in Pembroke. She believed they were employed together there for approximately 8 months from the latter part of 2021 going into 2022.
[174]. Later, they became friends and would “hang out”. After E.D.’s move to Sudbury, they stayed in touch by texting every “once in a while”, but she had not seen B.D. in roughly two years at the time she gave her evidence.
[175]. E.D. knew J.C. too, but not as well as B.D. E.D. met him through her friend, B.D., in what she believed to be November or December 2021.
[176]. E.D. recalled that B.D. and she went to his residence in wintertime while there was snow on the ground. They had a fire, drank a bit, and just hung out. This happened a few times.
[177]. B.D. drove her to one of the fires. J.C. was there as well with one of his friends. They were all drinking together. E.D. slept over and got a ride home in the morning.
[178]. The night before, they were all in J.C.’s room just hanging out on his bed. B.D. shared with E.D. some details of the relationship she had with J.C. It was E.D.’s understanding that it was a “complicated, on again off again” type. B.D. was “back-and-forth”. Sometimes she liked him, sometimes she did not.
[179]. B.D. did not disclose to E.D. any physical abuse of her by J.C., just emotional. E.D. emphasized that she would have remembered something drastic like if he had hit B.D.
[180]. Under cross-examination, E.D. seemed to recall that the name of J.C.’s friend, who was present at one of the bonfires, was “J.F.”. He was in J.C.’s bedroom with B.D. and her. E.D. thought J.F. drove home later with B.D. and her.
[181]. Defence counsel reminded E.D. that she had told police in her statement that she could not remember if J.F. stayed the night at J.C.’s place, but she did not think so. Nevertheless, she maintained, even though she agreed that memory does not improve with time, that J.F. was in the car with them when B.D. and she drove home in the morning.
[182]. She could not recall people that night making fun of J.C. and B.D. for having engaged in sexual intercourse with one another. She believed if that had occurred, it would have stuck out in her mind.
[183]. She agreed that she had seen B.D. drink before that bonfire night. Indeed, she had seen B.D. drunk on multiple occasions.
[184]. The night of the bonfire E.D. could only remember casual drinking. To her recollection, no one passed out, nor threw up.
[185]. Under re-examination, E.D. remembered that B.D. would have had more than just one or two coolers, but no shots.
J.F.:
[186]. When J.F. gave his evidence on January 11, 2024, he was 23 years old. He knew B.D. He remembered meeting her as a high school student in grade 9 or 10 in 2017 or 2018. They had a casual, good friendship. However, he had not spoken to her since she had ended her relationship with J.C.
[187]. J.F. also knew J.C. since grade 6. They went to the same elementary school together, but not the same high school. They were nevertheless good friends.
[188]. J.F. recalled that J.C. and he would hang out together along with B.D. in perhaps 2021 when J.F. had his “old car”. J.C. was living in a house outside Pembroke. J.F. would go socialize with him there and attend bonfires J.C. hosted. J.F. remembered three or four such occasions when B.D. was there, and once when E.D. was as well.
[189]. The time E.D. was present, J.F. remembered there was snow on the ground. B.D. was drinking coolers. J.C. was present too, of course.
[190]. J.F. recalled that he arrived at the bonfire in a taxi. He left around midnight after a friend had come to pick him up.
[191]. Earlier, he recalled that B.D. left the fire to go inside to bed, he assumed. J.C. and he remained at the fire. He thought that E.D. left before B.D. went to bed.
[192]. J.F. commented that he had seen B.D. drunk on a couple of prior occasions. On the night E.D. was with her at the bonfire, B.D. looked as though she had “a buzz on”. She “got tired” and went inside.
[193]. Around this point in time, J.F. recalled that his girlfriend was R.F. She lived above the pawn shop on the main street in Pembroke. A few times B.D. came to visit him there. J.C. would come also. When they did visit, J.F. would go down to the Giant Tiger parking lot to see them.
[194]. Occasionally, B.D. would share her feelings with J.F. about her relationship with J.C. She told him he could not take no for an answer. He was pushing when it came to sex. He also “whipped a phone charger at her head”, which he thought, happened near the end of their relationship.
[195]. J.F. added that he did not believe her. As he put it, “I know her. I know him.” J.F. simply wanted to be a good listener.
[196]. When J.F. learned that B.D. was pregnant, he described her as being “kind of on edge”. By that he meant she was nervous. However, J.F. felt that she grew to accept the fact and wanted to have the child.
[197]. Under cross-examination, J.F. placed B.D.’s level of intoxication at the bonfire, where she grew tired and went inside, at a 6 on a scale of 1 to 10. She was conscious and able to go to bed on her own.
[198]. J.F. clarified that J.C. was careful about going to meet up with him at his girlfriend R.F.’s place. As J.F. put it, J.C. never actually went to the residence.
[199]. On the occasions when B.D. spoke of the problems and her relationship with J.C., J.F. stated that this occurred when he would be working on his vehicle at J.C.’s residence. However, she did not tell J.F. about the phone charger incident until after her relationship with J.C. had ended. She came to J.F.’s residence to tell him about what had occurred.
[200]. J.F. explained that he took what she said with “a grain of salt”. She tended to exaggerate. By way of example, he said a “1” for most people would be a “5” for her.
[201]. J.F. was not certain, but it was possible that he knew she suffered from anxiety.
[202]. Under re-examination, J.F. confirmed that J.C. never came to his girlfriend, R.F.’s unit above the pawn shop. J.C. always met with J.F. in the Giant Tiger parking lot.
J.C.:
[203]. When J.C. began giving his evidence on January 11, 2024, he was 23 years old. He admitted to being on probation at the time he testified. He was not to have any contact with M.B., nor to be within 100 metres of her person.
[204]. He denied that he ever had contact with M.B. He stayed away from where he knew her to live above the pawn shop on the main street in Pembroke. He attended probation appointments nearby, but he would drive to the Giant Tiger parking lot and walk to them from there.
[205]. He maintained that he never drove down the main street of Pembroke unless he was with his friend and surety, M.H. J.C. explained that when he was out past curfew, he had to be in M.H.’s presence. The curfew was in effect from 11 PM to 6 AM.
[206]. J.C. added that whenever they went to Tim Horton’s in downtown Pembroke, it would be roughly 9 or 10 PM in the evening. Often, M.H. and he would not return home until 2 or 3 AM the next day. He would always be with M.H., so as not to breach his curfew.
[207]. J.C. recalled that on one occasion, B.D. may have been with them in M.H.’s vehicle. She would tell M.H. not to go along the main street because of J.C.’s conditions and the 100 metre radius he was to respect.
[208]. J.C. emphasized that he would say the same to M.H. about the route to be taken. As J.C. put it, he was scared and did not want to go back to jail.
Meeting B.D.:
[209]. J.C. testified that he met B.D. infrequently over the years at “car meets”. She was also the friend of a girl he was dating in 2021. After J.C. and that girl broke up, he began seeing B.D. romantically.
[210]. He pointed out that the situation between his old girlfriend and B.D., who had been roommates to that point, began to deteriorate. He therefore gave B.D. the option of moving in with M.H. and him. B.D. decided of her own volition to do so.
[211]. He denied that he ever dissuaded contact between B.D.’s family and her after she did.
The Phone Charger Incident:
[212]. J.C.’s memory of what occurred with the phone charger was quite different than B.D.’s. He thought he left it in her vehicle. She did not seem to care. As he put it, it was not hers, so she was not worried about it.
[213]. For the period it was missing, J.C. was “irritable”. Eventually, B.D. found it. She brought it to him and threw it on his bed. In turn, he picked it up and threw it across the room in a temper tantrum. He was in a “pissy mood”.
[214]. It hit his dresser at the end of his bed. It made the sound of a hard object against wood.
[215]. She was not in his bedroom when he threw it. She was in the hallway. It did not strike her.
Kicking B.D.’s Dog:
[216]. J.C. denied that he would ever harm an animal. There may have been occasions where he would have moved B.D.’s dog with his leg out of his way. It would consist merely of light shoving.
[217]. J.C. did remember an occasion where he wanted B.D. to assist him with shoveling outside. She had been outside most of the day doing it. She testified that he did not really go inside their shared residence at all that day. He had no interaction with the dog.
B.D.’s and J.C.’s Breakup:
[218]. J.C. remembered the day that J.B. texted B.D. to complain about his absence and his disappointment at him for not coming to help. J.C. stated again that he was in a “pissy mood” thereafter. He was extremely mad.
[219]. He drove home in his vehicle erratically. B.D. was with him.
[220]. When they arrived home, B.D. went into their room. He asked her politely not to damage his stuff.
[221]. After she left, he locked himself in the room. He needed to be alone to prevent himself from doing something he should not.
[222]. She tried to come back in the room. He put his body against the door to obstruct her attempt to enter.
[223]. She then went outside and called the police. Officers attended their shared residence. They took no action involving him.
[224]. He denied punching the wall beside B.D.’s head. However, he did agree that he punched his own dresser and broke both doors off it.
[225]. Regarding the state of the shared residence, he explained that his roommate, M.H., was a hoarder. Their house was an “absolute disaster”. M.H. had a bad temper and would punch the walls in the home too. Most of the holes in J.C.’s bedroom were made by M.H.
[226]. J.C. admitted he punched a hole in the wall of that bedroom, but that was long after B.D. had moved out of the residence.
[227]. He added that M.H. was not well the whole time he lived with him. M.H. was on dialysis due to kidney failure. He was not supposed to drink alcohol, but he did anyway. He had his “good and bad days”.
J.C. Threatening B.D.:
[228]. J.C. denied that he ever told B.D. that he would “stab her and take care of two problems”. Her evidence on that point was not true.
[229]. He explained that she was unsure about keeping the baby after she conceived J. He told her that it was her choice.
[230]. J.C. agreed that he did, at times, joke about saying, “If I go back to jail, it’ll be for murder.” He said it to many people while having drinks around the bonfire. He stated that he did have a dark sense of humour, because of how his life has gone. He allowed for the possibility that he did say it in jest to B.D. in casual conversation.
[231]. He emphasized that he never intended to threaten her, or anyone else, by saying it. It was in that moment just his “train of thought”.
Sharing a Room with B.D.:
[232]. J.C. settled upon the beginning of March as the time when B.D. and he began to share a bedroom. They discussed it beforehand. At first B.D. was a little “iffy” about it, but she did agree to it.
[233]. J.C. stated that he had to go to Hamilton to pick up T. to bring her back to Pembroke.
Bonfire No. 1:
[234]. J.C. testified that while he lived with M.H. at a residence outside Pembroke, they had bonfires “a lot”. They would have a couple of drinks together and invite friends over. It happened almost every couple of days.
[235]. J.C. remembered that E.D. and J.F. attended one near the end of November 2021. J.C. had been at Tim Horton’s earlier in the evening. He knew B.D. by that point because she had been living with his ex-girlfriend. He invited E.D. and B.D. to come over to his place. They agreed.
[236]. J.F. too stopped by J.C.’s house around midnight. J.C. was unsure if J.F. was dropped off by a friend or came by cab.
[237]. They all shared some drinks together in the company of M.H. as well, who stayed only momentarily to say “hi” before going back inside.
[238]. While at the bonfire, E.D. and B.D. said they were cold. They went inside. J.F. and J.C. remained at the fire for a while longer.
[239]. After he went inside, J.C. explained that B.D. told him she wanted to have sex with him. He agreed to it. He was unsure exactly about how the conversation went. E.D. was still inside the house at the time.
[240]. J.C. recalled that B.D. removed her own pants and underwear. He took his own off. She asked if he had any condoms. He stated he did. They proceeded to have sex in the missionary position.
[241]. J.C. realized that B.D. was drunk, but she told him she was “horny”. He was adamant that he did ask her if she wanted to have sex. She said yes.
[242]. The sexual intercourse, according to J.C., lasted two to three minutes. Later others came into the bedroom, and he told E.D. that she would have to wait until 6 AM for him to be able to drive her home.
[243]. J.C. recalled that J.F. slept until 6 AM. He woke him up. They all then got into J.C.’s car and he drove them home. He dropped E.D. off at her place at what he referred to as “college housing” by the Pembroke Memorial Centre hockey arena. He let J.F. out at the Giant Tiger parking lot.
[244]. J.C. remembered that he had only two or three alcoholic beverages. B.D. had four or five that he observed. He described her at that point as being “buzzed”.
[245]. He also denied that he ever showed her a used condom after the fact. He stated that would be “disgusting”. He did not do that.
Bonfire No. 2:
[246]. Nothing stood out for J.C. regarding a second instance of sexual activity with B.D. following a bonfire at his house. B.D. and he were intimate after quite a few.
[247]. As J.C. put it, it was hard to pinpoint any bonfire, which was out of the ordinary, because he had never forced sex upon B.D. He never badgered her into it.
[248]. On the use by B.D. of the expression of “caving” to his request to have sex, J.C. did not agree that he was being “pushy” with her. He would ask and if she said no, he was content to go on with his night.
[249]. He conceded there were occasions when she drank too much to the point of vomiting, but she would continue drinking thereafter notwithstanding. He denied that he ever had sex with her when she was passed out due to excess alcohol consumption.
February 19, 2022 – The Pregnancy:
[250]. J.C. recalled that on February 19, 2022, B.D. and he were going to go for dinner with her family. They did not engage in any sexual activity that day. He was not in the right frame of mind for it. He was heartbroken.
[251]. He explained that his friend, J.B., had gone through a life-changing experience. J.B.’s house had burned down. All that was left was the foundation.
[252]. J.C. had known J.B. since 2017.
[253]. Under cross-examination, J.C. indicated that his breakup with his former girlfriend, S.K., happened in November 2021.
The Beginning of the Relationship between J.C. and B.D.:
[254]. J.C. met B.D. through S.K. Both women worked at Tim Horton’s in downtown Pembroke.
[255]. To J.C.’s recollection, B.D. and he became friends in the fall of 2021 when S.K. and she were still roommates. B.D. got her puppy, B. around the end of October or the beginning of November 2021. It was about that time that B.D. and he started hanging out.
[256]. She started to come to bonfires he hosted at the house he shared with M.H. J.C. described himself as a “fire bug”.
[257]. There were lots of highs and lows in the relationship he shared with B.D. He described it as “rocky”.
Bonfire No. 1:
[258]. J.C. remembered that one of the bonfires she came to, she engaged in flirtatious talk with him. He could see she was showing signs of intoxication. She went into the house with her friend, E.D., who attended the ‘get together’ as well.
[259]. He realized “something could possibly happen” with B.D. She was in his bedroom with E.D. He knew she was drunk, but she did not tell him she was too drunk. To J.C.’s mind, she was looking to have sex. She had told him so. She had mentioned this to him before they all left from Tim Horton’s to head to his place.
[260]. J.C. was clear in giving his evidence that she did not specifically tell him she wanted to have sex with him, just that she wanted to party, drink and have sex.
[261]. It was later at the bonfire that she began to get “flirty” with him, and they were “hitting it off”. It was not until he went into his bedroom that he knew it was possible that “something could happen”.
[262]. At some point, E.D. left the bedroom. Even though J.C. knew B.D. was drunk, he still asked her if she wanted to have sex. As he put it, “Obviously, you ask. You need confirmation.”
[263]. He conceded he did not ask what type of sex she wished to engage in. Nor did he ask if she was feeling okay. He could not remember the specifics of the entire conversation they had before having intercourse. He did not write down what was said.
[264]. He recalled that he wore a condom, and they assumed the missionary position. He was gyrating above her.
[265]. He denied that he pushed her into having sex with him that night.
Bonfire No. 2:
[266]. J.C. could not recall B.D. vomiting before or after having sex with him. He recalled several occasions when she did so. As J.C. put it, “She liked to drink a lot.”.
[267]. He agreed that B.D. and he were in a relationship for a relatively short period of time. He could not remember any consequences flowing from the first time they had sex following a bonfire at his house.
[268]. He took the opportunity to have sex with her again thereafter, likely a short while after the first time, but she did not say at that point that it was not okay. Nothing bad happened. Every time they had sex, it was with her permission.
[269]. He conceded that, in general, he liked to get his way, but he never pushed her into it.
[270]. Eventually, B.D. moved in with M.H. and him. Throughout the month of January 2022, they were “just friends”. They did not become “exclusive” until Valentine’s Day (February 14, 2022). When pressed by Crown counsel that they were “friends who had sex”, J.C. agreed.
The Phone Charger Incident:
[271]. J.C. conceded that he is susceptible to mood swings. His emotions can turn on a dime. He has “a bit of a temper”, but he does not always get angry. It depends on the situation.
[272]. The incident involving his missing phone charger was an example of how he can become angry. He agreed that he did not have to behave as he did.
[273]. He indicated that he was inside his room with the door shut. B.D. was unable to see inside. She opened the door and threw his charger on his bed. He was having a temper tantrum and he threw it. There was nothing else within reaching distance of him. She would have been able to hear the sound it made afterwards.
[274]. J.C. added that he used to be quick to anger, but he has worked on this problem while on probation.
J.C. Threatening B.D. :
[275]. J.C. agreed that another occasion where he had a mood swing and grew angry was when he was supposed to help J.B. after the house fire, but he explained that he had not agreed to do it.
[276]. B.D. and he began sharing a room roughly a couple of weeks prior. After B.D. received J.B.’s text about J.C.’s failure to show up and assist, J.C. agreed he began to drive erratically. It was possible, he allowed, that she called him “an idiot”.
[277]. When they arrived home, M.H. asked him to help him with the washing machine. While J.C. was doing that, he went into B.D.’s and his bedroom to ask her to be careful. He could hear her stepping on things. At first, he tried to be polite, but later he grew angry.
[278]. He acknowledged that police were called because he punched a wall, but he did not know by whom. He denied he punched it beside her. He also punched his dresser with the snake tank on it.
[279]. He stayed in his room with the door closed after the police were called.
[280]. J.C. explained that most of the holes in the walls of his bedroom were put there by M.H. They were the only ones there the day the police came.
[281]. J.C. admitted he punched a hole in the wall of that bedroom, but that was long after B.D. had moved out of the residence.
[282]. He added that M.H. was not well the whole time he lived with him. M.H. was on dialysis due to kidney failure. He was not supposed to drink alcohol, but he did anyway. He had his “good and bad days”.
[283]. J.C. agreed that he had a dark sense of humour. It is “a thing”. It is not meant to be taken “literally” or “realistically”.
[284]. He said on numerous occasions, “If I go to jail again, it will be for murder,” or words to that effect. He said it as a joke. It was not directed at anyone. It was not intended to threaten anyone. He denied it was a threat he ever issued to B.D.
[285]. He estimated that he had said it 100 times, but then he retracted that assertion, and stated that was an exaggeration.
[286]. The first time he said it, B.D. laughed, but he could not provide any context for when he would have said it to her initially. Indeed, he could not remember any specific time he spoke those words.
[287]. He conceded that murder is not funny. He did not think it was when he thought about it seriously.
[288]. He stated that his memory is “not 100%”, but he did recall the “key parts”. He was testifying about events which had occurred years ago. It was hard to remember that far back.
[289]. He denied that he ever told B.D. he could “solve two of his problems at once”, or words to that effect. He did not say it while holding a knife. He did not think that that would be humorous. If he had, he felt it would be a direct threat to someone. It was not at all the same as joking about only going back to jail for murder.
The Pregnancy:
[290]. J.C. did not dispute that B.D. became pregnant with J. He ejaculated inside her vagina while he was not wearing a condom. He observed, “That’s how babies are made.”
[291]. He denied he knew if she was on birth control. He did not ask her, nor did she tell him if she was.
[292]. He agreed with the general proposition that condoms are used to prevent pregnancy and sexually transmitted diseases. However, he speculated that if he had been made aware she used birth control herself, he may have discontinued his use of condoms earlier. He quickly added that he was not sure if he even had that type of conversation with B.D.
[293]. He testified he had sex with her while unaware of whether she was using any form of contraceptive. They were not planning to have a child, but they entertained the possibility. They had conversations that if it happened, it happened. Those exchanges, he reckoned, could have occurred both before and after J.’s conception. He believed the child was conceived while he was in a relationship with B.D.
[294]. He conceded that prior to their discussion about the potential for having a child, he wore condoms whenever they had intercourse. He did not know when that conversation occurred, but it did happen.
[295]. It was not until near the end of their relationship that condom use was discontinued. It coincided with their knowledge that B.D. was pregnant. There was no point in using them any longer according to J.C.
[296]. They discussed abortion as well. He stated that B.D. was originally undecided about what she wanted to do when she learned that she was pregnant, but he offered that people change their minds. That is what he believed happened in her case.
[297]. He pointed out that he was not in control of whether she had an abortion. Ultimately, she decided to keep the child. He was “okay” with her decision.
[298]. He acknowledged that he had not commenced any family litigation. He had no relationship with J., even though he wanted to have one with him. He denied that his lack of effort in trying to see the child did not align with his attitude of “if it happens, it happens”. He explained that he is trying to fix his life first without adding “complications”.
[299]. He emphasized that he was dealing with his anger issues. He realized he needed help. He was doing the programs to get the assistance he required. He did not feel he could play a role in raising a child until he changed his own life for the better.
[300]. He conceded that J. was the product of vaginal/penile sexual interaction he had with B.D. However, she did not ever say she was not okay with it. He did not ever push her into having intercourse without a condom. He denied that she ever stopped resisting his desire to proceed with unprotected sex. It was never made a precondition by her.
[301]. J.C. was adamant that he did not have sex with B.D. on February 19, 2022. He described himself as “broken” that day. Tensions were running high after J.B.’s house had burned down. B.D. did not come into his room that night. Even though they were exclusively dating it did not mean they always had to share a bed. J.C. asserted, “Sometimes people need to be alone.”
[302]. He disagreed with the suggestion put to him by Crown counsel that he wanted to have sex to improve his mood. He simply did not want to have sex following news of the fire.
[303]. Further, J.C. could not remember an instance where B.D. insisted on condom use prior to engaging in sexual intercourse. He allowed for the possibility of the imposition of such a condition, but he simply could not remember it. Clearly, he offered, he likely did not wear one after J. was conceived.
[304]. He could not remember any discussion with B.D. about her being on birth control.
Breaches of Probation and Release Orders:
[305]. J.C. confirmed that he appreciated he was not to be at or near the pawn shop on the main street in Pembroke. It mattered not if he was on foot or in a vehicle. He understood that that was where his ex-partner lived. He was not to go there.
[306]. Nevertheless, he recalled three or four times when he was in a vehicle and in the vicinity of her residence. It was possible as well that B.D. was in the vehicle with him on one or more of those occasions, but he could not remember her being there. However, she could have been behind him in her own vehicle.
[307]. During those three or four occasions, J.C. told M.H. not to drive by his ex-girlfriend’s residence, but M.H. did not listen. He denied that when he did so he was also in breach of his curfew. He was allowed to be out past curfew in the presence of his surety.
B.D.’s Dog:
[308]. J.C. recalled that B.D.’s dog was only a couple of months old when B.D. moved in with M.H. and him. At that point in time, the dog was under 20 pounds, J.C. estimated. The dog’s name was B.
[309]. J.C. agreed that he did not take responsibility for B., nor did he feed her, nor walk her. However, as he put it, “The dog loved me.” B. particularly liked to go for car rides with him.
[310]. Occasionally, he would prevent M.H.’s dog, A., and B. from hurting one another by grabbing their collars and separating them. The dogs did not always get along.
[311]. J.C. conceded that there may have been times when he “lightly shoved” B. using his leg as opposed to his foot. He would nudge B. away while wearing construction boots. He wore them all the time. He was required to because he was “working construction”.
[312]. One day, he remembered being outside shoveling all day. He was not in a good mood because B.D. was not helping him. When he went back inside the house, he took his boots off at the door because it was wintertime.
[313]. If B. was in the bedroom with B.D., he may have shoved the dog out of the way using his leg, not his foot.
[314]. J.C. also allowed for the possibility that he may have stepped on B.’s foot by accident and the dog whimpered. If he did so, he sat and apologized to her, even though she is “not human”.
B.D.’s and J.C.’s Breakup:
[315]. On the day that B.D. called the police to assist her in moving out, J.C. maintained that he punched only his own dresser in his room. She saw him do that. The police did not.
[316]. He did not punch any other object that day.
[317]. Under re-examination by defence counsel, J.C. explained that when he drove his vehicle, he would normally take Mary Street on his way to Tim Horton’s in downtown Pembroke. It was a “full bypass” around his ex-girlfriend’s residence. It was a “rare occurrence” for him to follow any other route.
[318]. He also emphasized that he wished to be finished with his criminal court proceedings before he could even consider playing a role in J.’s life. He reiterated his desire to work on himself and to do his “programs”. He mused, “If I’m better, I can help my kids better.”
Defence Position
[319]. Defence counsel submitted that there is an important distinction between credibility and reliability. The complainant, B.D., may herself believe in what she tells this Court. It is her truth, but her accounts are largely unreliable due to her level of intoxication and the passage of time.
[320]. The defence drew my attention to the helpful passages penned by Molloy J. in R. v. Nyznik (2017) ONSC 4392 at paragraphs 15 to 17, where Her Honour, in her typical fashion, ably articulated the difference between credibility and reliability. Defence counsel exhorted me to take her approach to the analysis of the evidence commonly heard in sexual assault trials in the ‘he says she says’ scenario.
[321]. Defence counsel urged me also to be guided by the reasoning of Ducharme J. in R. v. J.R. (2006) ONSC, particularly on the issue of what to make of a complainant’s memory loss in a sexual assault trial, which he set out at paragraphs 18 and 19 of the decision. His Honour astutely concluded:
“Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.”
[322]. The defence argued as well that the Court should take a holistic view of the inconsistencies in the complainant’s evidence to assess whether the witness’s evidence is reliable.
[323]. Defence counsel contended that the desire of the complainant, B.D., as overtly expressed to police in giving her statement of May 15, 2022, compels this Court to assess a potential motive to fabricate on her part to exclude the accused, J.C., from her son J.’s life. As she put it to the officer, “That’s not what I want.” What was in her mind was the desire to keep J.C. completely away from J.
[324]. B.D. openly pondered whether she had given the police “enough proof” in having J.C. not simply charged with criminal offences, but to prevent him from exercising parental rights to J., who she believed, was fathered by J.C.
[325]. It matters not that J.C. took no step by way of family litigation to see J. He was candid that he needed to work on his anger before he could be of any assistance to his child.
[326]. Defence counsel also pointed out, of course, that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. In this case, however, B.D. was transparent about wanting to shut J.C. out of J.s life.
[327]. Regarding the alleged threats, defence counsel emphasizes that they were not intended to instil fear, nor to intimidate, nor to be taken seriously. His dark humour utterances about only going back to jail for murder were in jest.
[328]. In respect of the alleged breaches of probation for driving within the prohibited radius of his former partner, M.B., the defence argued J.C. never intentionally went within the ‘no go’ zone. He was not the driver. He was on those few occasions a passenger along for the ride with his roommate and surety, M.H. It was an involuntary act on his part. The actus reus and mens rea for those offences have not been made out.
[329]. Of course, if the Court finds he did not intentionally go where he was prohibited from going, and he did not commit any of the other offences still outstanding for which he has been charged, he cannot be found guilty of failing to keep the peace and be of good behaviour.
[330]. Regarding the assault with a weapon for throwing the phone charger, defence counsel submits the complainant’s evidence was inconsistent in material respects. At one point, B.D. says it hit her; at another, she says it did not. She also gave differing versions on how many times the charger was thrown at her.
[331]. In any event, the defence posits, J.C.’s testimony was believable that he simply threw the charger at his bedroom wall out of frustration.
[332]. The Court can safely draw the inference that, when J.C. threw the charger against his bedroom wall, immediately after B.D. delivered it to him and closed his door, it must have been the charger he threw, since it was the subject of their ongoing argument over where it could be and helping to find it.
[333]. Furthermore, if :
a) B.D.’s evidence is not believed beyond a reasonable doubt that the phone charger was thrown at her, or
b) J.C.’s evidence’s that he did not is accepted, or
c) his evidence that he did raises a reasonable doubt,
the charge relating to his breach of a release order for possessing a weapon must also be dismissed.
[334]. In connection with the allegation of the threat to stab her and solve two of his problems at once (i.e. being rid of B.D. and the baby she was carrying), the defence contends that B.D. was inconsistent on a detail about which an honest witness would not be mistaken. She told the police that the accused, J.C., held the knife to her stomach. At trial, she testified he had it out of the drawer pointed toward her, but not touching her.
[335]. Even if the Court were to believe the threat with the knife happened, which J.C. denied, it can be regarded again as an instance of his penchant for dark humour.
[336]. Regarding the first alleged sexual assault following the first bonfire night B.D. attended at J.C.’s place, she conceded herself that she possibly consented to the sexual intercourse. She has no clear memory of the exchange which took place between the accused and her because she blacked out in consequence of her alcohol intoxication. Her ability to accurately recollect what occurred was irretrievable for her.
[337]. Her shock and surprise at having had sex with J.C. after the condom was shown to her does not mean she did not freely agree to having sex in the moment. It is merely evidence of post-incident regret.
[338]. To the contrary, J.C.’s testimony on how consent was obtained was far clearer. She told him of her desire to drink and have sex before even arriving at his house. Further, he asked and she agreed to have sex with him when they were in his room.
[339]. In respect of the second bonfire, B.D. admitted she “caved”. In other words, she acquiesced, after some initial reluctance, to his request to have sex.
[340]. Commenting on the overall quality of B.D.’s testimony, the defence emphasized that B.D. could not even “keep straight” what happened at the first bonfire as opposed to the second.
[341]. In contradistinction, J.C.’s evidence was both credible and plausible. Whenever he desired B.D., he was careful to secure her voluntary agreement to engage in sexual intercourse with him.
[342]. On the occasion of B.D. becoming pregnant with J. as a result of unprotected sex with J.C., where she supposedly imposed the condition that he use a condom but he refused, the complainant was again inconsistent on a core allegation. She told the police she undressed herself expecting there to be a “normal” encounter, whereas at trial she testified to him undressing her. She also told police he promised he would “pull out”, but in her evidence at trial, she did not recall any such offer being made by J.C. until she was reminded by the defence of what she said to police. She then testified that she did not remember him making any such offer.
[343]. She also told the Court he was “begging” her to have unprotected sex with him, whereas she told police he was “yelling” at her to agree to no condom use and to have his kid.
[344]. To the contrary, the defence submitted, J.C. was unshaken in his evidence. February 19, 2022 was a highly emotional day for him when his friend, J.B.’s house burned down. He was in no mood to engage in any sexual activity that evening. He denied having sexual intercourse with B.D. at all on that occasion.
[345]. Equally credible, the defence argued, was his “laissez faire” attitude toward B.D. becoming pregnant. “If it happened, it happened” was the common view shared by both J.C. and B.D. There was no reason to reject J.C.’s evidence on that point.
[346]. Regarding J.C.’s explosive behaviour toward B.D. on the day she moved out, defence counsel characterized the complainant’s testimony as “ever shifting”. They were both in a highly agitated state. B.D. could not be consistent on the sequence of events on what was punched first, his dresser, her dresser or the wall, nor how many times he did so.
[347]. By contrast, J.C.’s evidence was much clearer. He punched his own wall, but on an earlier occasion than when she moved out.
[348]. Additionally, B.D.’s friend, E.D., did not dispel any possibility for recent fabrication regarding B.D.’s decision to go forward with her allegations regarding J.C. All B.D. told E.D. was that B.D. did not like the way J.C. treated her.
[349]. In respect of the cruelty to an animal charge, defence counsel pointed out that there was no noticeable injury to B.D.’s dog, B., notwithstanding she was forcibly kicked by J.C. while he was wearing work boots. B.D. saw no swelling on her dog. Nor did she believe it was necessary to take her pet to the vet. If the dog had not appeared fine to her following the kick, she would have brought her to see the vet. That did not happen.
[350]. To the contrary, J.C.’s testimony was far more believable. The dog loved him. He would take it for rides in his car. The worst that he would have done to the animal is brush it aside with his leg after a day of shoveling snow, when he was not wearing his boots because he had gone inside.
[351]. On the issue of the Crown’s similar fact application to have B.D.’s evidence considered across counts in respect of supporting the likelihood that the sexual assaults occurred as B.D. testified they did, defence counsel characterized it as “an illogical exercise in bootstrapping”. The number of complaints of a similar nature made by B.D. by their sheer quantity do not make them more credible or reliable.
[352]. In any event, the defence contended, to allow the complainant’s testimony to be used along that vein would be far too prejudicial to the accused, even if the Court were to consider the similarity of the complaints to have some probative value.
[353]. At its root level, defence counsel concluded, B.D.’s evidence was not just incredible, it was unreliable as well. The Court’s inquiry cannot end at whether she first said ‘no’ to J.C.’s requests to engage in sex. The Court must go further to determine whether, in the moment, her consent was legally obtained.
Crown’s Position
[354]. Crown counsel submitted that this is a W.(D.)1 case. The Court must thus take the usual, three-pronged approach to all the evidence called at J.C.’s trial.
[355]. The Crown argued that J.C.’s testimony could be rejected based on a “considered and reasoned acceptance of the evidence of the complainant, B.D.” (See R. v. J.J.R.D. (2006) ONCA.)
[356]. In other words, the complainant, B.D., spoke the truth in providing her testimony before the Court. While demeanour cannot be overemphasized, hers was indicative of candour. There may have been minor inconsistencies, but overall, her evidence was internally consistent. She was attempting throughout to be both honest and accurate.
[357]. By contrast, the accused J.C.’s testimony was illogical and internally inconsistent. His style in answering questions put to him by Crown counsel was combative.
[358]. Regarding the assault with a weapon charge, the Crown contended that the complainant was confused by defence counsel’s line of questioning regarding what occurred. The complainant, B.D., was clear that the charger was thrown only once and hit her. A second item may also have been thrown at her, which did not strike her. Accordingly, there was no inconsistency in her evidence regarding this incident.
[359]. With respect to B.D.’s state of sobriety or lack thereof, Crown counsel emphasized that B.D. was intoxicated following the bonfires at J.C.’s residence. On both occasions, she told him she was too drunk to have sex. Indeed, she blacked out after the first one, but she is nevertheless believable that she did not communicate her consent to engage in sexual intercourse with J.C.
[360]. E.D. and J.F. offered confirmatory evidence of her drunkenness. B.D. ought to be believed that she did not consent to the sexual intercourse, and that she was shocked to learn of the used condom.
[361]. Following the second bonfire, it matters little whether B.D. initially went inside the house to check on her dog, and threw up before or after the sexual intercourse occurred. They constitute collateral details. They may reveal minor omissions or inconsistencies in her evidence, but nothing turns on them.
[362]. Most importantly, J.C. took no reasonable steps to ensure he was obtaining her consent to engage in sexual activity.
[363]. Crown counsel also argued the threat of taking care of two problems while brandishing or holding a knife is made out regardless of whether or not the knife actually came out of the utensils’ drawer. Again, the inconsistencies in her evidence about the physical positioning of the knife are minor. The same Crown argument applies to the sequencing of events when B.D. was moving out on the issue of whether J.C. punched the dresser or the wall first.
[364]. The Crown urged me to accept that any inconsistency about how B.D. became undressed the night she believed J. was conceived, namely whether she did so herself or J.C. did it for her, is not critical. The core of her allegation remains the same. She believed it would be a “normal” night. However, she was very clear that she did not consent to unprotected sex, and J.C. ignored the condition she placed on her willingness to engage in sexual activity with her. He proceeded to force sexual intercourse upon her without a condom.
[365]. Equally, B.D. ought to be believed about her allegation that her dog was kicked on multiple occasions by J.C. She was asked to elaborate and recounted one specific instance where he did so after J.C. had been outside shoveling snow. That particular occasion stood out for her.
[366]. Crown counsel emphasized that B.D.’s desire to keep J.C. from seeing her son, J., was borne out of a legitimate concern for the boy’s safety. She was well aware of J.C.’s anger issues and explosive temper. The evidence adduced at J.C.’s trial discloses no motive to fabricate on her part.
[367]. Regarding the breaches or probation, J.C. has no reasonable excuse defence to the act of allowing M.H. to drive him down the main street in Pembroke on the way to Tim Horton’s when J.C. knew, from past experience, that M.H. may not avoid going within 100 metres of M.B.’s place of residence. J.C.’s offer to “duck down” was proof of his intentional failure to respect the boundaries placed upon him. Accordingly, he was breaching his probation by putting himself in the situation he did. He was also not keeping the peace and being of good behaviour in so doing.
[368]. On the issue of alleged sexual assaults in general, Crown counsel emphasized that the offence is made out where J.C. knew he had not secured B.D.’s consent, or was reckless about, or wilfully blind to securing her consent. The mens rea component of the offence is made out. If the Court accepts that B.D. said no, the actus reus of the offence is also established. B.D., Crown counsel contended, was entirely consistent and believable on the critical point that she did communicate her consent to J.C. There was no freely given, conscious agreement on her part to have sex with J.C. during any of the alleged occasions of sexual assault.
[369]. Further, J.C. offered no evidence that B.D. changed her mind, nor did he testify to any steps he took to ensure he had her voluntary agreement.
[370]. In arguing the similar fact application to have B.D.’s evidence of communicated lack of consent regarding the sexual assaults alleged to have occurred following both bonfires, Crown counsel conceded her application was an “atypical” one. However, this was no legal bar to this Court hearing and granting the application if persuaded the tests for its admission had been met.
[371]. Crown counsel was clear - the reason why similar fact evidence is presumptively inadmissible is because it invites propensity reasoning.
[372]. The Crown thus must show that the probative value of the tendered evidence outweighs its prejudicial effect. Citing the dicta of Paciocco J.A. from R. v. M.R.S. 2020 ONCA 667, the Crown argued the Court would be assisted by the reception of the tendered evidence on the application as follows:
“To be clear, things are different when assessing the credibility of witnesses who testify on multiple counts. The assessment of the credibility and reliability of a witness’s testimony on one count may properly inform the assessment of that witness’s evidence on any or all counts. However, the substantive testimony that a witness gives about one count cannot be used as affirmative evidence to assist in proving the accused is guilty of any other count unless a finding has been made that the similar fact evidence rule has been satisfied.”
[373]. The Crown identified the core issue for consideration was whether B.D. consented to sexual intercourse with J.C. following the bonfires. B.D. testified she did not. J.C. gave evidence that she did.
[374]. In essence, Crown counsel contended that both bonfire events were so similar that they inform the Court of B.D.’s state of mind when she was put in the exact same situation twice.
[375]. In R. v. Handy 2002 SCC 56, the Supreme Court of Canada offered the following factors for consideration in determining the strength of similar fact applications:
a) proximity in time,
b) similarity between the acts,
c) any distinctive features, and
d) any intervening events.
[376]. The Crown emphasized the close temporal proximity between the two bonfire evenings, and pointed out the following similar and distinctive features:
a) both transpired within several days of one another,
b) both occurred at J.C.’s residence in his bedroom,
c) both happened after the parties had been drinking,
d) both times B.D. went into the residence first, and
e) the two alleged sexual assaults involved penile penetration with both parties assuming the missionary position.
[377]. The Crown emphasized that, in a judge alone trial, the danger of misuse of the similar fact evidence grounded in moral or reasoning prejudice is highly unlikely.
[378]. Accordingly, Crown counsel invited the Court to consider both events together in their totality and not in isolation to determine whether the complainant, B.D., consented to the sexual activity which occurred following both bonfires. Relying on R. v. Eze 2022 ONSC 277, the Crown submits “as a matter of logic, common sense and experience, one sexual assault followed in succession in more or less the same place, by the same person on the same victim, may reasonably give rise to the inference that the accused did in fact commit that second sexual assault.”
[379]. The Crown conceded nevertheless that “if the Court finds that B.D. is not credible and/or not reliable such that her evidence raises a reasonable doubt, the similar fact evidence application becomes moot and an acquittal will follow.”
[380]. Turning to the W.(D.) test, the Crown characterized the accused’s J.C.’s defence as largely one of denial.
[381]. He was a volatile, angry person who liked to have his own way, and who came off as disingenuous when confronted with B.D.’s accounts of what he did to her. He made conscious choices to behave in the criminal manner he did. Overall, he was simply not credible.
[382]. On the second branch of the W.(D.) test, his evidence, when weighed against all other testimony called at his trial, the Crown argued, did not raise a reasonable doubt in respect of any of his outstanding charges. It ought to be rejected.
[383]. On the third branch of the W.(D.) test, B.D.’s evidence was wholly believable in its core aspects. Any inconsistencies were minor in nature. She came across as candid and open. She described herself as “flirty” with J.C., but she nevertheless clearly told him she did not want to have sex with him. She was too drunk. She did not attempt to deflect away from any of her memory gaps on what happened after she went into his bedroom. Her friend, E.D., and J.C.’s friend, J.F., were all in that bedroom at one point. Both E.D. and J.F. placed B.D. as significantly drunk on a scale of 1 to 10.
[384]. J.C. knew she was, as he put it, “horny”. He was also aware she was intoxicated, but he took no steps to ensure she was consenting to sexual intercourse.
[385]. B.D. had no motive to fabricate any of the events which give rise to J.C.’s charges.
[386]. On a fair interpretation of all the witnesses’s testimony called at J.C.’s trial, B.D. did not consent to any of the sexual activity forced upon her by J.C. She said “no”. He proceeded to have sex with her as he wished contrary to her clearly communicated opposition to it.
[387]. In respect of her use of the word, “cave”, Crown counsel urged the Court to find that she did not acquiesce to intercourse with J.C.; rather, she simply stopped resisting his attempts to carry through with the act.
[388]. No reasonable doubt is raised, Crown counsel contended, based on a hypothetical conversation which could have happened between J.C. and B.D. during their presence together in his bedroom.
[389]. Regarding B.D.’s pregnancy, J.C. agreed he used condoms all the time before she knew she was with child. It bolsters her credibility on her insistence upon the use of a condom on February 19, 2022, when J.C. insisted upon dispensing with it, because he wanted her to have his child.
[390]. J.C.’s contention that B.D. and he discussed, “If it [pregnancy] happens, it happens” rings hollow if abortion is also discussed between them as an option to terminate it. The decision not to use condoms thereafter is irrelevant. A woman cannot become any more pregnant than she already is.
[391]. Further, J.C.’s evidence is not credible that he was in no mood to have sex with B.D. on February 19, 2022, because he was so distraught in the wake of the house fire his friend, J.B., had just experienced. J.C. still had the energy and vigour to argue with B.D. that evening. He knew she was not ready to have a child. He foisted it upon her notwithstanding.
[392]. Overall, the Crown submitted, J.C.’s evidence was at times, “all over the map”. On the topic of birth control, his position evolved from:
a) there were no conversations about condom use,
b) next, if it happens, it happens,
c) then it was - maybe we did have discussions about condom use, and last
d) B.D. could not become any more pregnant than she already was, so why bother.
[393]. With respect to the assault with a weapon charge, Crown counsel urged the Court to convict because B.D. was clear that a phone charger was thrown at her and struck her. J.C. admits he threw one. There is no dispute it was thrown. The Crown submitted it was aimed in her direction. Even if it did not make contact with her, it had the potential to strike her, and a finding of guilt could be made by resort to s. 265(1)(b) of the Code.
[394]. Regarding the utter threat charge, the law has changed since the Clemente decision of the Supreme Court of Canada 1994. Later, in R. v. O’Brien, the Supreme Court held that it was no longer an element of the offence that the person who receives the threat need feel intimidated by it. It is the intention of the person who uttered the threat which must be assessed. In other words, the test is now whether the person who made the threat meant to intimidate the recipient by saying what he or she said.
[395]. J.C. was not joking, the Crown argued, when he told B.D. he would solve two problems at the same time while brandishing the knife. The only reasonable inference to be drawn is that he meant to intimidate her by saying what he did.
[396]. Lastly, on the cruelty charge, the Crown emphasized that the offence is made out where the evidence demonstrated that the animal suffered pain or injury. There is no need for confirmatory evidence from a vet. B.D.’s testimony that the dog whimpered and limped for a while is sufficient to make a finding of guilt.
[397]. The test of J.C.’s intention in kicking the dog must be objectively and subjectively assessed. He was wearing work boots. Objectively, he ought to have known he could hurt the puppy were his heavy boot to come in contact with the animal. Subjectively, he specifically intended to hurt the dog by kicking it, or at a minimum, was reckless in doing so.
Issues
[398]. I must apply a W.(D.) analysis to the evidence adduced at J.C.’s trial. Clearly, the credibility of all Crown and defence witnesses must be carefully assessed. Their reliability as historians for significant past events must be considered and determined as well.
[399]. Essentially, in applying the law, I must acquit J.C., if I believe his testimony regarding the incidents in question, after I assess all the evidence called at his trial.
[400]. If 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.
[401]. Even if I do not accept the evidence of J.C., 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 or offences with which he was charged.
The Law
Assessing Credibility and Reliability:
[402]. A couple of months ago, in R. v. R.P. 2024 ONCJ 240, I commented on how greatly assisted I was by the decision of the Supreme Court of Canada in R. v. Kruk, 2024 SCC 7 as follows:
- Recently, the Supreme Court of Canada hearkened back to the fundamental principles of law to be applied in every criminal trial in Kruk. The Court held:
[59] The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence — a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, 1986 CanLII 46 (SCC), [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 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 69-78).
[60] Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72). Likewise, it is improper to discount the credibility of accused persons on the basis that, because they face criminal penalties, they will say anything to protect themselves. Though considering the possibility that the accused may have a motive to lie will not necessarily offend this rule, courts should be wary of going further and drawing the “impermissible assumption” that they will do so in all cases (R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14). Such reasoning is premised on a supposition of guilt and therefore offends the presumption of innocence (para. 12).
[61] The presumption of innocence also restricts how credibility is assessed in cases of conflicting testimony between defence and Crown witnesses. The analysis of testimony must never be treated as a contest of credibility, and triers of fact need not accept the defence’s evidence or version of events in order to acquit (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 23; R. v. W. (D.), 1991 CanLII 93 (SCC), [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).
[62] Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W. (D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much — or all — of the accused’s evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused’s testimony, or does not know who to believe, the accused is entitled to an acquittal (J.H.S., at paras. 9-13; R. v. H. (C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19).
- Later, the Court reminded trial judges of their roles in assessing the credibility and reliability of witnesses in the following passages:
[72] It 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 CanLII 324 (SCC), [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.
[73] In 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).
[81] Assessments 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). 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.
- In 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.
[403]. In R. v. A.M. 2014 ONCA 769, the Court of Appeal for Ontario offered general guidance to trial judges tasked with assessing the credibility and reliability of witnesses’ evidence as follows:
[8] Several basic principles inform our decision regarding the trial judge's reasons for judgment.
[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R.
[10] Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.
[11] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469, [1962] S.C.J. No. 27.
[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies [page 540] may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.
[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No, 24, 2008 SCC 24, at para. 31.
[15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay, 1994 CanLII 8749 (BC CA), [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.), at p. 471 C.C.C.
The Meaning of Proof beyond a Reasonable Doubt:
[404]. In a very recent case I decided, R. v. McLaren 2023 ONCJ 92, I adverted, as I must, to the meaning of “reasonable doubt”. I had the following to say:
The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.
Recently, my colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning of reasonable doubt:
[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.
[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.
[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[42] Three years later, in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13 that:
In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.
Analysis
Do I believe J.C.?:
[405]. Overall, I believe the testimony of the accused, J.C. I find that he was not “combative”. Rather, he was incredulous at points coping with the reality that he was placed on trial for his outstanding charges based on what he clearly considered to be untrue, ridiculous allegations made by B.D.
[406]. I accept J.C.’s evidence that whenever he made his way along the main street in Pembroke in front of his former partner’s residence, he was in a vehicle which he was not operating himself. His roommate and surety, M.H., was the driver. M.H. was in control. J.C.’s options were limited. He could either be let out of the vehicle, in which case he would be in breach of his curfew, or he could “duck down” in the hope he would not be seen by his former partner, M.B., or the authorities. Whenever he drove himself, he took extreme caution not to infiltrate the 100 metre, ‘no go’ zone for the residence of M.B. B.D.’s evidence confirmed this.
[407]. I reject the Crown’s argument that J.C. was reckless or wilfully blind by refusing to get into a vehicle with M.H., when J.C. knew or ought to have known, after the first instance it occurred, that M.H. may drive straight down the main street in Pembroke again and past M.B.’s residence. I find on the evidence adduced at J.C.’s trial that M.H. only drove within the restricted radius on a few occasions. When he did, J.C. would not know of or be capable of predicting what M.H.’s intentions were until it was too late. The act of incursion happened not because J.C. voluntarily chose to put himself within the restricted area, the act occurred because J.C. was taken there. J.C. was not reckless, nor was he turning a blind eye to what he knew M.H. intended to do. To the contrary, I find that he expected M.H. to assist him as his surety in avoiding any breach of his release order and/or probation order. On very seldom occasions, M.H. did not do so through no fault of J.C.
[408]. Further, I accept his evidence regarding what he said he did with his phone charger. He threw it at his dresser, not at B.D., after she found it for him. It did not strike her. He was, as he put it, “in a pissy mood”. He was angry, but he committed no assault. I have no reason for rejecting or doubting what he says occurred with it.
[409]. Having accepted his evidence, it follows that he could not have breached a condition of his release by being in possession of “a weapon”.
[410]. I find his evidence more credible through his acknowledgement of his anger issues. He knew he needed help and he set about obtaining it. I do not believe B.D.’s assertion that he considered it “a joke”. Rather, I believe J.C.’s claim that he had to change his life for the better before he could play a role in parenting his children. He struck me as quite genuine when he testified on that point.
[411]. I believe J.C.’s testimony as well that he did not intentionally cause pain or suffering to B.D.’s dog. I find that J.C. was an animal lover. He liked B.D.’s dog and the dog liked him. He would take her pet for car rides. While he may have injured the dog accidentally by stepping on her when she was a puppy, he was remorseful for having done so. Whenever he moved the dog out of his path, he did so gently using his leg.
[412]. Furthermore, I believe J.C.’s evidence that he did not threaten to take care of two problems at once by stabbing B.D. in the stomach while she was pregnant. I have no reason for doubting that he left it to B.D. to decide whether to have an abortion or to keep the baby. I accept his evidence that it was her “choice”.
[413]. When J.C. proclaimed, “If I have to go back to jail, it’ll be for murder”, he was joking. The comment was not directed at anyone in particular. It certainly was not intended to intimidate anyone or to cause anyone to fear for their safety. Quite appropriately, he allowed for the possibility he said it directly on occasion to B.D. She, in turn, seized upon it, after she decided to end her relationship with J.C. She then used it to colour J.C.’s character as negatively as she could.
[414]. In essence, I accept J.C.’s explanation that he has a dark sense of humour. The things he says when he employs it are not to be taken “literally” or “realistically”. His boasts about solving two problems at once, killing someone who should walk into his room or not going back to jail except for murder are prime examples.
[415]. With respect to the first bonfire event which B.D. attended with E.D. at J.C.’s place, I find that J.C. gave a credible, straightforward account of what B.D. and he did before having sexual intercourse for the first time. He recalled the encounter happened near the end of November 2021. Earlier in the evening while the three of them were at Tim Horton’s in downtown Pembroke, he invited the two women over. They accepted.
[416]. Upon arrival at his home, they shared drinks together around the fire. J.C.’s friend, J.F. also came by around midnight.
[417]. At one point, B.D. and E.D. told them they were cold. The women went inside the house. J.C. and J.F. remained for a while longer at the fire.
[418]. I believe J.C.’s evidence that he had only two or three alcoholic drinks, whereas his best estimate was that B.D. had four or five. She was, as he described her, “buzzed”, but not inebriated.
[419]. J.C. went inside eventually. B.D. told him she was “horny”. She was in his bedroom. He was unsure how the conversation went exactly, but he did ask her if she wanted to have sex with him. She confirmed she did.
[420]. She went on to ask him if he had any condoms. He assured her he did. She took off her own pants and underwear. They proceeded to have sex in the missionary position. The act itself did not last long – only two to three minutes.
[421]. I believe J.C.’s denial that he showed a condom to B.D. as proof that they had had sex the evening prior. Neither E.D., nor J.F. had any recollection of this occurring.
[422]. Eventually, E.D. and J.F. came into J.C.’s bedroom with them. He told E.D. she would have to wait until 6AM, when his curfew ended, before he could drive them home. Later that morning, he took E.D. and J.F. home.
[423]. I appreciate that J.C.’s account is at odds with E.D.’s and J.F.’s as to how everyone returned home; however, I accept J.C.’s testimony on that point. J.C. came across as clear and accurate in his recollection of the event.
[424]. J.C. was skillfully cross-examined by Crown counsel. He did not waver. He was unshaken.
[425]. When pressed about knowing B.D. was drunk, he maintained that he still asked her if she wanted to have sex with him, and he received her confirmation that she did. At no point did she ever tell him she was too drunk. There was never a need to ask if she was feeling okay. She was somewhat drunk, but by no means incapacitated.
[426]. J.C. was clear. He could not remember all the specifics of the conversations he had with B.D. preceding their first sexual encounter. He was entirely credible in this regard. As he put it, he did not write it all down.
[427]. He convincingly denied that he forced himself upon her. She undressed herself. Her will was far from overborne by anything he did.
[428]. Regarding the second or subsequent bonfires B.D. attended at his house, again I accept J.C.’s testimony that he did not ever behave in an overly persistent or “pushy” manner by forcing B.D. to do what she did not want to do. I believe his evidence that he did not even recall an occasion where she would have “caved” to his request for sex. If she was not in the mood after he asked, he was content to go on with his night. Like virtually everyone, he liked to get his way, but I cannot reject his contention that he would respect B.D.’s wishes whenever she was uninterested.
[429]. I also believe J.C.’s clear memory that B.D. and he did not become exclusive partners until Valentine’s Day of 2022. Their intimate relationship was a relatively short one. His evidence was candid and convincing in the manner in which he described its nature. As he put it, “Nothing bad happened.” Every time they engaged in sex, it was with her permission.
[430]. I fully believe that J.C. did not ask whether B.D. was on any form of birth control outside of condom use. Simply put, he did not ask for and she did not volunteer to him any such information. A condom was used during their first sexual encounter. Condom use continued thereafter.
[431]. His contention, that if she had told him she was using her own type of contraceptive, he may have discontinued condom use earlier than he did had the ring of truth to it, as did his affirmation that he indeed had unprotected sex with her not knowing if she was on birth control. Life experience teaches us that teenagers and young people, such as B.D. and J.C., are not always careful and do not thoroughly think through the full-blown consequences of unprotected sex in the heat of the moment.
[432]. The evidence I accept in this case goes further. I believe J.C.’s testimony that the mutual agreement which B.D. and he reached was in fact, as he stated, “If it happens, it happens.” My confidence in this finding is not shaken by his inability to recall the exact date as to when they came to this understanding. To the contrary, his lack of recall enhances his credibility in my mind. It speaks to the nonchalant attitude naïve young people can from time to time adopt to demonstrate their commitment to one another and to seemingly solidify their bond.
[433]. My impression is that both J.C. and B.D. were unsophisticated and immature individuals. The prospect of B.D. becoming pregnant was considered by them, but the gravity of it actually materializing was lost on them. Not long into their short-lived relationship, they were both ambivalent about it occurring. Insufficient thought as to the enormity of the resolve required to raise a child together was not weighed by either to any great extent.
[434]. In sum, I believe B.D. initially made condom use a precondition to vaginal/penile intercourse between J.C. and her, but that rule was bent over time. I am absolutely convinced by J.C.’s testimony that condom use was abandoned completely between them after she learned she was pregnant.
[435]. Regarding the pregnancy, I also accept J.C.’s evidence that he was uninterested in sex on February 19, 2022, after learning about the house fire his close friend, J.B. had just experienced. J.C. was heartbroken. J.B. had lost everything. The actual date was significant for J.C. It stood out in his mind.
[436]. Once the reality of B.D.’s pregnancy and its ramification came into focus for J.C. and her, I accept his testimony that they discussed abortion as well. I believe J.C.’s assertion that he felt it was B.D.’s decision on whether to have one or not. For her own reasons, and after some natural trepidation on her part regarding how to support a child, she decided to keep the baby. Their mutual friend J.F.’s evidence supports her evolution in thinking on the issue of whether to have an abortion or to keep the baby. She settled upon the latter. Ultimately, that was her choice, as it ought to be.
[437]. J.C.’s failure to take steps to see J. after he was born through resort to Family Court is completely understandable. I venture the Family Court, quite appropriately, would await the outcome of a criminal trial where the putative father is facing charges of, amongst other things, sexually assaulting the mother, and where a pregnancy resulted, before ever considering issues of custody of and/or access to the child by the father. Sound, practical reasons exist for the Family Court to hold off until the conclusion of the criminal trial, and if a conviction were to ensue, until the sentencing was finished as well (see A.W. v. S.W., 2018 ONCJ 200 at paras 29, 30, 44 – 50, 58, 59, 61 & 65; Shoshi v. Vuksani, 2013 ONCJ 459 at para. 49). I do not see how it would be in the best interest of the infant child to compel the mother to share custody of, or allow access to, the father who may have threatened, assaulted, raped, traumatized and victimized the child’s mother.
[438]. As far as B.D.’s decision to move out of the house J.C. shared with M.H. goes, I accept J.C.’s testimony that he only punched his own dresser. It was a highly emotional day for both J.C. and B.D. Yet again, it was another manifestation of J.C.’s penchant for angry outbursts, but it does not necessarily follow that his volatile behaviour must have resulted in a criminal act. Fortunately, the explosive relationship he shared with B.D., who also had a role to play in its flashpoints, had come to an end. Police were on scene to assist on March 18, 2022. The officers who attended were aware of their domestic policies and duties to investigate. They saw fit to take no action that day other than to stand by and keep the peace.
If I do not believe the testimony of J.C., am I left in reasonable doubt by it?:
[439]. Suffice to say, J.C.’s testimony left me with more than a reasonable doubt. In general, and considered against the backdrop of all other evidence called at his trial, I believed him.
If I do not believe the testimony of J.C., and I am not left in reasonable doubt by it, on the basis of the evidence which I accept, am I convinced beyond a reasonable doubt in the guilt of J.C.?:
[440]. Given my belief in the testimony of the accused, he is entitled to an acquittal on all his remaining charges before me. Nevertheless, I feel dutybound to explain to the Crown why I could not believe in, nor rely upon the evidence of B.D.
[441]. I agree with defence counsel’s characterization of B.D.’s testimony as “incredible” and “unreliable”. I shall provide several examples.
[442]. Upon consideration of the whole of the evidence adduced at J.C.’s trial, I am left with the impression that B.D. wished to have a relationship with J.C. It was not forced upon her at all. She did not simply want to “smooth things over” with him after she moved into the home, which he shared with M.H. She wanted an exclusive, romantic commitment from him.
[443]. Over the relatively short-term relationship they shared, she grew to know the depth of his anger issues. This realization, in a sense, came too late. By this point, he had fathered her child. While J.C.’s rage continued to flare at times, she resolved not to allow him to assume any type of parenting role, likely for good reason. She then set about reconstructing much of their history together in a negative light to cast blame upon him. Consequently, her accounts of material events, as shared with police and later revisited at J.C.’s trial, were hard for her to hold together. Her credibility was demonstrably lacking as a result.
[444]. By way of illustration, she was inconsistent as to whether the phone charger hit her or not. The first day of giving her evidence during the trial, she said it did not. On a later date, she said it did. This was not a minor inconsistency. An honest witness should know whether an object aimed and thrown at him or her made contact or not. She ought not to have been unsure or mistaken about whether it did or not.
[445]. I can also infer that she must have forgotten what she told police about a T.V. remote control she alleged J.C. threw at her. Quite appropriately, Crown counsel invited me to dismiss this charge, at the end of trial, due to the absence of evidence emanating from B.D. on that particular alleged offence of assault with a weapon.
[446]. Regarding the dog, I do not believe what B.D. says J.C. did to her pet, B. She clearly loved B. enormously. Despite her modest means, if J.C. had kicked B. with the force B.D. says he did while wearing work boots, the dog would have suffered as a puppy at that time a far more extensive injury than it did. Yet B.D. stated she observed no visible contusion on the animal. Nor did B.D. see the necessity for a visit to the vet to have the dog examined, her modest means notwithstanding. To my mind, she either exaggerated or lied about the incident.
[447]. Equally, B.D. insisted that there were several occasions when J.C. kicked the dog, but there was but one solitary occasion about which she could testify and provide some detail. I would have expected more of them to have been etched in B.D.’s memory, but apparently, that was not the case.
[448]. With respect to the threats J.C. allegedly made to B.D., she acknowledged herself that J.C. had a dark sense of humour. When he stated the first time he would only go back to jail for murder, she laughed. I find that she knew he was being boastful or melodramatic. The same goes for when he spoke of taking care of two problems at the same time, or killing someone should they enter his room. She knew he was not intending to intimidate her or cause her to fear for her safety, nor her life, nor the wellbeing of anyone else. It was his way of expressing his frustration and upset. Although it was childish and inappropriate on his part, it meant nothing.
[449]. There was too a glaring omission in the evidence of B.D. When she spoke to police about the alleged threat of J.C. telling her he could take care of two problems at once, he put a knife to her stomach knowing she was pregnant. However, she neglected to mention this detail to the Court when examined by Crown counsel. She had to be reminded of this detail by defence counsel under cross-examination. I find this troubling. I would have expected this characteristic of the alleged offence would have been most salient in the mind of B.D. Considered in this light, I am not at all convinced that J.C., in truth, ever put a knife to the belly of B.D.
[450]. I find, in respect of the alleged breaches of probation for going within a 100 metre radius of M.B.’s residence, and thereby failing to keep the peace and be of good behaviour, that B.D.’s evidence in respect of those alleged offences was generally unreliable. She agreed her memory of those occasions was “poor”. However, what she was clear about was the care J.C. took when driving himself. He would not drive down the main street of Pembroke. It only happened when his roommate and surety, M.H., drove.
[451]. Further, when cross-examined about this alleged threat, B.D. agreed with the suggestion put to her by defence counsel that her anxiety could “colour her world”.
[452]. With respect to the first bonfire B.D. attended at J.C.’s home, I find as well that her evidence, at the most critical juncture, was unreliable. She was under the influence of alcohol at the time. She conceded that she was later passing out or blacking out, and as a result, there were gaps in her memory where she may have earlier given her consent to engaging in sexual intercourse with J.C. Accordingly, she had no direct evidence to offer on what discussion, if any, immediately proceeded engagement in the act itself, nor what positions J.C. and she assumed, nor how long it lasted.
[453]. It is particularly noteworthy that on her own evidence, B.D. did not remember the act of sexual intercourse as having occurred until after her friends joked with her about what happened, and J.C. showed her the used condom. Accordingly, I simply have no evidence from B.D., due to her level of intoxication, that she did not voluntarily agree to having sex with J.C. in his bedroom, even though she told him at the fire earlier that she was “too drunk”.
[454]. Regarding the second bonfire, B.D. stated herself that she “caved”. The Canadian Oxford Dictionary (2nd ed. - 2004) defines “cave” used as a verb to mean:
“yield or submit under pressure; give up”.
Had I not accepted J.C.’s evidence about all sexual activity between B.D. and him as being consensual, I would have entertained a sizeable, reasonable doubt about whether B.D. yielded or acquiesced to J.C.’s repeated requests to have sexual intercourse with him on this occasion. She gave in to his entreaties to have sex with him, even though at the outset she felt as though she was too tired and drunk. In other words, out of her own mouth, although initially disinclined, B.D. agreed to having sexual intercourse with J.C. Reluctant consent is still legal consent.
[455]. With respect to B.D.’s account of how she says she conceived her son, J., the major inconsistency in her evidence which causes me to seriously doubt her version of what occurred lies in how she came to be undressed. She told police it was a “normal” night. She got undressed herself. If sexual intercourse was to occur between J.C. and her, it would have to be with a condom.
[456]. To the contrary, she testified that J.C. forced himself upon her and took her pants off. On this particular evening, February 19, 2022, B.D. was not drinking. Surely, an honest witness would not be mistaken about how her pants were removed immediately prior to nonconsensual intercourse occurring without a condom, which resulted in a pregnancy, but apparently, B.D. was.
[457]. B.D. also forgot the offer supposedly made by J.C. that he would “pull out” before ejaculating if she allowed the sex to occur unprotected. Under cross-examination, B.D. had to be reminded of that detail she provided to police. Furthermore, it seems odd that any such offer would ever have been made by J.C. if he wanted to impregnate B.D., as she insisted, in her evidence, was his firm intention.
[458]. In a more general sense, I am left to ponder as well B.D.’s upset at the “choices” she made in the lead up to her pregnancy. That is the word she used to describe her emotions and feelings in coping with the reality of being with child. To my mind, it betrays to a certain extent a volition on her part and a regret at her past nonchalance to the possibility of becoming pregnant.
[459]. Furthermore, she was unsure when she ended her own use of birth control, but she knew it was after she met J.C.
[460]. At the core, I have difficulty relying on B.D.’s evidence after my overall assessment of it, due to her anxiety, her copious consumption of alcohol at times combined with the contraindicated use of prescription drugs, and the passage of time, given roughly two years had elapsed between when the material events occurred, and the dates over which she testified. As she conceded herself, the accuracy or her recollection regarding the incidents giving rise to J.C.’s charges were “all over the place”.
[461]. Nor can I reject outright that B.D. entertained a motive to fabricate. She did wonder aloud in giving her statement to police whether what she had told the officer interviewing her “ . . . would be enough proof, hopefully that he [J.C.] wouldn’t get custody”. That prospect was decidedly something she did want to have happen. Consequently, I find that B.D. was inclined to colour her past interactions with J.C. to cast him in a most unfavourable light. One example of this tendency on B.D.’s part was her testimony regarding how she told him “a million times no” when he would ask her for sex. Clearly, she was a person prone to exaggeration and embellishment from time to time. I find that at points her evidence was geared to preventing J.C. from ever seeing her son, J.
[462]. As well, B.D.’s friend, E.D., did not assist the Crown’s case by dispelling any notion of recent fabrication by B.D. All B.D. told E.D. about was J.C.’s emotional abuse, nothing physical. E.D. gave no evidence about teasing B.D. about having had sex with J.C. after the first bonfire, nor witnessing B.D.’s state of shock and surprise at learning of J.C.’s use of a condom with her.
[463]. Regarding J.F.’s testimony, a mutual friend of both J.C. and B.D., I place no weight, of course, on his assessment of B.D.’s credibility. Only I can pass judgment on the complainant’s credibility.
[464]. To a certain degree however, J.F.’s evidence does serve to dispel a notion of recent fabrication that a phone charger was thrown at B.D., and that J.C. had a tendency not to take no for an answer when he wished to engage in sexual activity with B.D. I find that J.C., like many young males, could be persistent and insistent in this regard. Of course, that is not to say that I ever came close to believing beyond a reasonable doubt that J.C.’s youthful zeal and lust led him to sexually assault B.D. The proof offered by the Crown at his trial fell well short of the high onus the Crown is expected to discharge.
[465]. I hasten to add that J.F. was able to confirm that on the bonfire night he attended at J.C.’s place where B.D. and E.D. were also present, B.D. was conscious and able to go to bed on her own.
[466]. All these inconsistencies and omissions in the evidence of B.D., and the conflicts between B.D.’s testimony and the evidence of the other Crown witnesses called at J.C.’s trial, as set out above, give me great pause, to say the very least.
Conclusion:
[467]. Given my findings above, I will not rule on the Crown’s similar fact application. As appropriately urged upon me by Crown counsel, it need not be determined by me, as it is moot.
[468]. For all the reasons set out above, I must find J.C. not guilty on all remaining counts before me.
DATED: July 17, 2024
March, M.G., J.
ENDNOTES:
1 R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742
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.