WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
CITATION: R. v. J.L., 2024 ONCJ 72
DATE: January 22, 2024
COURT FILE No: 20-1220
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-AND-
J.L.
Before Justice M. G. March
Heard on January 30, April 3, July 17, August 21 and September 27, 2023
Reasons for Judgment released on January 22, 2024
Ms. Goher Irfan……………...………………………..…Counsel for the Provincial Crown
Mr. Forest Poff-Smith..………………………………………………………Counsel for J.L.
Introduction
J.L. stands charged that between January 1, 2014 and December 31, 2018, he did commit a sexual assault upon K.M. contrary to section 271 of the Criminal Code of Canada (the “Code”).
For oral reasons given January 30, 2023, I dismissed an application brought by the defence under section 276 of the Code attempting to adduce evidence of the complainant’s prior sexual history, which was the not the subject matter of J.L.’s outstanding charge.
At the outset of the trial proper, J.L., through his counsel, admitted the span of dates over which the alleged offence could have been committed, the jurisdiction of the Court to hear the matter, and the ability of K.M. (now K.T. following a change to her surname) to identify him as the accused perpetrator of the sexual assault.
As with so many criminal trials, the outcome in this one will turn on an assessment of the credibility and reliability of the evidence given by all witnesses, be they called by the Crown or defence.
The Relevant Evidence
K.T.:
When K.T. gave her evidence on November 28, 2022, she was 32 years of age. She was on maternity leave from her employment with a local school board, where she is employed as an Early Childhood Educator.
K.T. is the mother of five children. J.L. is the father of one of them, her son, B.
K.T. and J.L. met over an online dating platform in either 2013 or 2014. After six months of seeing one another, K.T. became pregnant with B. just before Thanksgiving 2014. According to K.T., J.L. and she never cohabited. They always lived in separate homes. J.L. lived with his parents for the duration of their relationship.
K.T. recounted that J.L. began sexually assaulting her while she was pregnant with B. and “very sick”. On the first occasion it happened, J.L. told her one morning that, “The sex was really good last night.” He then laughed and kept going on about it. She asked, “I had sex with you last night?” She did not know what to do. She just “dropped it”.
On other occasions, K.T. would wake up during the night to J.L. with his “hands inside [her] vagina”. He would just be touching her and masturbating. She would be lying on her left side. He would be behind her. He would be fingering her, while he had his hand on his penis, stroking it up and down. She estimated that this type of event occurred more than 20 times.
Upon waking, she would be startled but could see what he was doing. She would get angry and make him leave her home. He would refuse. He would then tell her he loved her, and he wanted to stay. It was not until she threatened to call the police that he would leave.
She would also awaken repeatedly to him with his penis inside her while she was living on H. St. in Pembroke between March 2015 and December 2018. He would be on top of her. Her clothes would be either removed or pushed to the side. She would tell him, “Stop. Get off me.” He would not. She would try to push him off, but he was very heavy.
During one such incident, she told him to get off. However, he kept going for a couple of seconds more and ejaculated inside her. She had no idea what she was wearing before falling asleep, but she was naked when she awoke. So was he. He then got up and walked away.
She was pregnant with B. at the time. M. and C., two of K.T.’s older children, were also living with her then.
As K.T. put it, “He expressed satisfaction, and got up . . . just like nothing happened.”
K.T would tell J.L. after such incidents, “You can’t do that. You have to stop.”
J.L. would respond that he was sorry, and he would not do it anymore. A week or so would go by and he would comment, “Look, I’m getting better.” Then he would do it again. The pattern continued.
K.T. lamented, “Every time it played out like that.”
She explained that she remained in the relationship with J.L. because he kept telling her he loved her, and it would not happen again.
The last occasion of unwanted sexual touching occurred in June 2018. K.T. had been out to socialize with her sister, A.V. J.L. was caring for the children, B., M. and C.
At that point, in K.T.’s view, J.L. and she were no longer in a relationship. As K.T. described the situation, “It was no longer good”. They had separated in February or March of 2018.
K.T. fell asleep on a sectional couch in the living room of her home. She woke up to find J.L. performing oral sex on her.
She explained that she had been working earlier in the day, specifically a Friday. She estimated that she got off between 4:30 and 5:30 PM. J.L. was employed at a local sawmill at the time.
He came over before K.T. and her sister went out. She remembered leaving her home around 8 or 9 PM. She arrived back around 12:30 or 1 AM.
Upon arrival, she thanked J.L. for babysitting the children. He told her he wanted to go upstairs to say good night to their son, B. She fell asleep while waiting for him to come down.
She recalled that she had been lying flat on her back. Her left leg was hanging onto the floor. She had been wearing a dress. When she awoke, she realized her underwear had been removed.
K.T. stated that J.L. was holding her vagina open and licking it.
As she regained consciousness, her first reaction was one of panic. She exclaimed, “What the fuck!” She then told him, “Get the fuck out of my house.”
He just left. He did not say anything.
K.T. did not ever confront J.L. again thereafter about the unwanted sexual touching.
In terms of access to their son at the end of their relationship, J.L. started seeing B. every second weekend, but it did not go well. He then decided that he would only visit with B. for one to two hours maximum per week.
Whenever J.L. came over to visit, K.T. would leave. His access to B. always occurred at her home. He explained to her that he had no place else to take B.
Before K.T. spoke to police about the incidents in the summer of 2020, she disclosed to her sister, A.V., what had occurred and confided in her. A.V. was “like her best friend”. Ironically, J.L. would go to A.V. to complain to her about K.T.’s treatment of him.
K.T. also told her father, D.M., that J.L. had “raped” her. She told her brother the same as well.
K.T. elaborated that she went to police because during her next pregnancy with her daughter, E., the pressure on her body was causing her to have nightmares. She was feeling overwhelmed.
K.T. emphasized that she did not previously want to go forward with her allegations because J.L. and she were no longer together. She thought she could move on, but after the onset of the nightmares, it was just too hard.
She found herself waking up, screaming and crying. Her pregnancy was progressing with more vaginal pressure. She sought assistance from a female massage therapist, but she would get sweaty and shaky. As she put it, “I couldn’t do it anymore.”
Her decision to report the incidents to police coincided as well with J.L. attending at her home wishing to have access to B. Their child, K.T. stated, would cry, scream and shut the door in J.L.’s face. The boy did not want to go with his father.
Any communication between J.L. and K.T. at the time consisted only of texting. It was minimal. It strictly concerned B.
(Decision continues exactly as in the judgment…)
…
For the above reasons, I must find J.L. guilty of sexually assaulting K.M. (now K.T.) between January 1, 2014 and December 31, 2018.
I wish to thank counsel for their very helpful submissions.
DATED: January 22, 2024
March, M.G., J.
Endnotes
- R. v. W.(D.), 1991 SCC, [1991] 1 SCR 742 (see para 142)
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.