WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
J.M.-F.
Before Justice J.P.P. Fiorucci
Heard on November 3, 2025
Reasons for Judgment released on December 18, 2025
Claire Sweeny..................................................................................... counsel for the Crown
Lauren Wilhelm.................................................................. counsel for the accused J.M.-F.
FIORUCCI J.:
Overview
1The accused, J.M.-F. and the complainant, G.H., began dating in February 2021. They have a four-year-old daughter together. The relationship ended on December 22, 2024, but the accused and the complainant continued living in the family home together with their daughter.
2On February 12, 2025, the complainant left the home with their daughter and did not return. On February 14, 2025, she told the accused that the relationship was over. The accused wanted to see his daughter, but the complainant withheld access to the child. The accused called the police. When the police contacted the complainant on February 15, she told them she had safety concerns but made no complaint of wrongdoing against the accused.
3The accused hired a lawyer who sent the complainant a letter, on February 18, which set out the accused’s concerns about his daughter’s safety and not knowing his daughter’s whereabouts. The accused’s lawyer threatened legal action if the complainant failed to confirm the child’s location and enter a parenting time arrangement with the accused.
4On February 23, 2025, the complainant called the police and told an officer that the accused had raped her. During this call, the complainant mentioned that she had received a letter from the accused’s lawyer about an impending motion in family court. On February 27, the complainant provided a formal statement to police, in which she said that the accused “came from behind and had sex with me”.
5The accused was charged with sexual assault. The Crown proceeded by indictment. The accused elected to have his trial in the Ontario Court of Justice and entered a not guilty plea. The complainant was the only Crown witness. She testified about an incident of forced vaginal intercourse that occurred on the night of December 11 into the early morning hours of December 12, 2024. The accused was the lone defence witness. He denied having sex with the complainant on this occasion and denied that he ever sexually assaulted her in the manner she described.
6These reasons explain why I am left in a state of reasonable doubt about the sexual assault allegation made by the complainant, which mandates that I find the accused not guilty of the charge.
Legal Principles
7The Crown bears the onus of proving each and every element of the offence charged beyond a reasonable doubt. The accused carries no onus to prove or disprove anything. He is presumed innocent of the charge. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not enough for me to believe that the accused is probably guilty or likely guilty of the offence. Probably guilty or likely guilty does not meet the standard of proof beyond a reasonable doubt and must result in an acquittal. Although the Crown is not required to prove the charge to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than a balance of probabilities.
8The accused testified and denied committing the offence. I must apply the framework set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. First, if I accept the accused’s exculpatory version of events, when I consider his evidence in the context of all the evidence, I must acquit him. Second, even if I reject the bulk of the accused’s evidence, some elements of his evidence may raise a reasonable doubt, or I may simply conclude that I do not know whether to believe the accused’s testimony or not. In either circumstance, the accused is entitled to an acquittal: R. v. S. (J.H.), 2008 SCC 30, at paras. 10 – 12. At this second stage, if, after a careful consideration of all the evidence, I am unable to decide whom to believe, I must acquit: R. v. S.H., 2016 ONSC 4492, at para. 39, aff’d 2021 ONCA 41. At the third stage of the analysis, even if I am not left in reasonable doubt by the evidence of the accused, I still must determine whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
9Although the W.(D.) analysis refers to three steps or stages, the overriding consideration is whether the evidence as a whole leaves me in any reasonable doubt about the accused’s guilt: see R. v. Thomas, 2012 ONSC 6653, at para. 24. The W.(D.) analysis ensures that my verdict is not based on a choice between the Crown evidence and the defence evidence: see R. v. A.J.K., 2022 ONCA 487, at para. 22. Exculpatory evidence is not limited to defence evidence. It can also arise from the Crown’s case: R. v. B.D., 2011 ONCA 51, at para. 114.
Analysis
Analysis of the Complainant’s Evidence
10I start with my analysis of the complainant’s evidence. I have significant concerns about the complainant’s credibility and the reliability of her testimony. I have identified several aspects of the complainant’s evidence which have led me to find that it would be unsafe to rely on her testimony to ground a conviction.
11The complainant testified in-chief that the relationship ended on December 22, 2024, but the couple continued to reside with their daughter in the family home. The accused and the complainant would sleep in the master bedroom and their daughter slept in the next bedroom.
12The complainant testified that on the night of December 11 or the early morning hours of December 12, 2024, the accused woke her up in their bed. When Crown counsel asked how the accused woke her up, she replied, “I felt my pants being pulled down”. According to the complainant, she said “no” to the accused and rolled over. After about a minute, the accused “came in from behind”, pulled her pants down and penetrated her vagina with his penis from behind. The complainant said that her body tightened up, she clenched and was crying into her pillow.
13In-chief, the complainant explained that when the accused first woke her up, she was on her back, had her left arm up and her left leg was up a bit. She said she felt the accused trying to get her leg down, but he was probably having difficulty and that’s when she woke up and said “no” and rolled over onto her right side. In-chief, the complainant testified that the accused did not say anything to her when she awoke to him removing her pants. She just remembered grunting noises when he penetrated her.
14When she was asked again by Crown counsel whether the accused said anything to her during the entire time, the complainant said that she could not recall. She also could not recall whether she said anything to the accused, saying that she was “just in shock”.
15The complainant testified that she did not want to have sex with the accused. She said the penetration lasted three to four minutes and ended with the accused ejaculating in her. She went into the bathroom crying. When she went “pee”, it hurt and burned. According to the complainant, she stayed in the bathroom for a couple of minutes with her head in her hands, in disbelief that someone that she once loved and trusted did that to her. The complainant returned to the bed and cocooned herself in the blankets so “he couldn’t get me again”. The accused was not in bed when the complainant returned from the bathroom.
16Defence counsel’s cross-examination of the complainant exposed frailties in her evidence, including inconsistencies between the complainant’s evidence-in-chief and her police statement regarding how the sexual assault started, a potential motive to fabricate tied to the timing of her disclosure of the sexual assault, and the complainant’s failure to provide to police the full text message exchange that occurred between her and the accused on December 12, 2024. The text messages the complainant did not give to the police contradicted the claim she made during her examination-in-chief that she did not respond to the accused all day because she was really upset with him about the sexual assault.
17A further inconsistency arose when the complainant reported a new allegation of sexual assault for the first time during cross-examination. I will begin there. The complainant spoke with the police on three occasions prior to the accused being charged: on February 15, 2025, when the police called her regarding the accused’s complaint that she had taken their daughter and was withholding access, on February 23, 2025 when she called the police and made an allegation of rape for the first time, and on February 27, 2025 when she provided her videotaped police statement and made the same allegation.
18During cross-examination, when defence counsel asked the complainant whether she had told the police everything they had to know and had not left anything out, she said, “to my knowledge, yes”. The complainant then agreed with defence counsel that, a week before the trial, she had met with Crown counsel and the officer in charge for trial preparation and that she had read the transcript of her February 27 statement. The complainant also agreed that, at that time, she was provided with an opportunity to let Crown counsel, and the detective, know if she had left anything out. She confirmed that, at that time, there was nothing she had to add or change to her statement.
19However, as defence counsel pressed on and questioned the complainant about the fact that the relationship did not end after the incident she alleged happened on December 11 or 12, but rather on December 22 because of an argument unrelated to any sexual misconduct by the accused, the complainant made a new allegation of sexual assault. The following exchange occurred between defence counsel and the complainant on this issue:
Q. And you were provided an opportunity to let [Crown counsel] or Detective Barron know if there was anything that you’d left out?
A. Yes.
Q. And there was nothing that you had to add or change, right?
A. Yes.
Q. Because otherwise, you would have taken the opportunity to tell [Crown counsel] or Detective Barron, right?
A. Yes. It’s overwhelming, though.
Q. You had nothing to add or change?
A. There’s a lot that’s gone on between him and I.
Q. If you had something to add or change to your statement, you would have told the officer and the Crown attorney, correct?
A. Yes.
Q. Now, let’s talk about the timeline of you contacting police. The allegation you’ve talked about today took place in December of 2024, right?
A. Yes.
Q. It wasn’t reported at the time?
A. No.
Q. Nor did it cause you to end the relationship?
A. It did eventually.
Q. Well, you ended the relationship you say on the 22nd of December, right?
A. Yes.
Q. And your decision to do so was because on that day you had an argument in which you say Mr. M.-F. took your child out of your arms?
A. Yes. After he hid my keys.
Q. In any event, the argument wasn’t about this alleged sexual assault?
A. It started from a different sexual assault. Another one he did the day before that on the 21st, the morning of the 21st.
20The Crown and defence filed an agreed statement of facts, Exhibit 5 on the trial, which confirms that the complainant did not report any criminal offence with an offence date of December 21, 2024 to police. The central issue in this case is credibility. The fact that the complainant spoke with police on at least four prior occasions and made no disclosure of a sexual assault that occurred on December 21, yet made this allegation for the first time in cross-examination is a material inconsistency. It is significant that the complainant made this allegation for the first time when defence counsel suggested that the relationship had ended on December 22, not because of sexual misconduct by the accused, but because of an argument over the accused taking their daughter from her arms. At first, the complainant appeared to agree with defence counsel’s suggestion, adding that the accused also hid her keys. However, she then went on to make the new allegation of sexual assault that she said happened a day earlier. In essence, the complainant claimed for the first time during cross-examination that the relationship ended on December 22, 2024, at least in part, because of sexual misconduct that occurred a day earlier. This material inconsistency struck a significant blow to the testimonial credibility of the complainant especially considering the other frailties in her evidence which I will now go on to discuss: see R. v. S.G., 2022 ONCA 727, at paras. 20-23.
21The complainant testified in-chief that she was sleeping on the night of December 11 into the early morning hours of December 12 when she awoke to the feeling of her pants being pulled down. She agreed with defence counsel that she wanted the Court to infer from her in-chief testimony that she was solidly asleep and woke up because the accused was pulling her pants down. Furthermore, when Crown counsel asked the complainant whether the accused said anything to her when he woke her up and was removing her pants, the complainant’s response was: “No. He made, like, I just remember grunting noises when he penetrated me”.
22Defence counsel then confronted the complainant with her February 27, 2025 police statement which contained a much different account of how the sexual assault began. In her February 27 police statement, the complainant made no mention of waking up to the accused pulling down her pants. In fact, she did not mention her pants at all in this statement. Instead, when the detective asked her whether the accused woke her up, she replied, “Yeah, yeah, he-yeah, yeah, like, he was waking me and I was, like, ‘What are you doing?’, he’s like, ‘Come on’, and, like, pushing himself on me. And I was like, ‘No, I’m sleeping, like, I’m sleeping’, like, I turned over so he wouldn’t, and he came from behind”.
23In the following exchange with defence counsel, the complainant acknowledged the inconsistency between her police statement and her in court testimony and attributed it to the “multiple scenarios” she was dealing with when she gave her police statement “because she went into another one right after”:
Q. What you suggest to Detective Barron is that he comes in and is sort of saying, ‘Come on, wake up,’ right?
A. Yeah.
Q. That he’s trying to rouse you, not that he’s immediately touching you or pulling your clothing off, correct?
A. Correct.
Q. And in fact, nowhere in that statement do you say anything about pulling your clothing off, do you?
A. No.
Q. A pretty big difference, isn’t it?
A. I think I was wrapped up in my head about every – telling the detectives everything. Because there was multiple scenarios.
Q. You were wrapped up in your head about telling the detectives everything because there was multiple scenarios?
A. Because I went into another one right after.
Q. So, you didn’t tell the officer a truthful, accurate, detailed narration of this event because you were thinking about something else?
A. I guess so, it looks like it.
Q. He asked you a direct question, right?
A. Yep.
Q. And you gave him a direct answer, didn’t you? Didn’t you?
A. Yes.
Q. And the direct answer was not, ‘He started pulling my pants off while I was still asleep.’ Is it?
A. No.
Q. That’s much more serious what you’ve told the court today than what you told the police, isn’t it? Right?
A. Yes.
24This inconsistency in how the complainant described the beginning of the sexual assault in her police statement versus how she described it in her evidence in-chief is a material one which pertains to a matter of substance, the very criminal act the accused is alleged to have committed.
25I have considered the explanation the complainant appeared to advance for this inconsistency, and I find that it was not credible. She attempted to explain the inconsistency by saying, “I think I was wrapped up in my head about every – telling the detectives everything. Because there was multiple scenarios”. She went on to say, “[b]ecause I went into another one right after”. It is difficult to decipher the complainant’s explanation for the inconsistency, but I infer from her testimony that she is alluding to the fact that, when she spoke with police on February 27, she was dealing with multiple scenarios including the sexual assault that she says happened on December 21. It is difficult to accept that the inconsistent version of the December 11 or 12 incident the complainant gave the police on February 27, 2025 is in some way attributable to confusing that incident with the December 21 incident which the complainant did not mention to police on February 27, or at any time prior to her cross-examination at trial.
26The complainant provided the police with a screenshot of text messages she received from the accused after she went to work on December 12, 2024. The screenshot the complainant provided to police is Exhibit 1 on the trial. It shows a message received from the accused at 10:26 a.m. on December 12 which says, “I enjoyed fondling your dumper last night :)”. At 2:42 p.m., the accused sent the complainant the following messages: “Wowwy! Your day must have been super busy! I know you loves it lol Call me later, bitch I miss your phat tits”.
27When Crown counsel asked the complainant about the 10:26 a.m. message, she said it was disgusting and that she did not know how to respond because she was really upset with the accused from the night before. She went on to say, “that’s why I didn’t respond to him all day”. The complainant said that “fondling your dumper” to her meant that she and the accused had sex and “I guess from behind, ‘dumper’ meaning your butt and he’s trying to be funny about it”.
28When asked in-chief about the 2:42 p.m. message the accused sent, which said her day must have been super busy, the complainant stated:
I – I believe he knew what he did was wrong and I was upset and I wasn’t messaging him back. He was trying to be funny. But – and I wasn’t responding, I wasn’t giving him that satisfaction. I didn’t want to argue, I was still trying to interpret what happened and what my next step was to do because I didn’t want this to continue or to happen again.
29Therefore, during her examination-in-chief, the complainant portrayed December 12 as a day during which she was angry with the accused because of the sexual assault that occurred the night before and ignored him by not messaging him back.
30Defence counsel’s cross-examination on this issue dealt yet another significant blow to the complainant’s testimonial credibility. The complainant agreed with defence counsel that she was absolutely certain that the sexual assault took place in either the late hours of December 11 or the early morning hours of December 12. The complainant testified that the text messages and call logs she provided to the police assisted her in determining the exact date that the incident occurred. She said, “I knew it was mid-December and then when I found the text messages, I knew for certain the dates”.
31The following exchange then occurred between defence counsel and the complainant:
Q. And you say that because of the message that you’ve been shown this morning, the ‘fondling my dumper’ message, right? You're nodding your head; you have to give a verbal response.
A. Yes.
Q. And you say this because, as you’ve told this court, “I was not responding to him all day,” or, “I didn’t talk to him all day.” Is that your evidence?
A. Yes.
Q. You didn’t speak to [J.] all day long?
A. I spoke to him that evening and I told him, I confronted him.
Q. Okay. And other than that call that evening, you ignored him, right?
A. Yes.
Q. Ignored his calls, ignored his messages until that call in the evening that you’ve just made mention of?
A. Yes.
Q. And once again, you’re as certain about that as anything else?
A. I’m positive.
Q. I’m sorry?
A. I’m positive that’s when I told him.
Q. That wasn’t my question. My question was are you positive you ignored him all day as you’ve already testified to this court that you did?
A. I believe I spoke briefly earlier in the day with him, there was a short conversation, but it was just to let him know, like, I was okay and alive, but it was a quick phone call.
Q. And that’s it?
A. Yes.
Q. Other than that, you were back to ignoring him all day as you categorically said in your evidence in-chief?
A. Yes.
Q. You provided that screenshot to police, right?
A. Yes.
Q. And you provided it to police because you wanted to be believed, right?
A. Yes.
Q. And you think that that message supports your evidence, correct?
A. Yes.
Q. And you provided your call logs because you say that supports your evidence, correct?
A. Yes.
32The complainant denied defence counsel’s suggestion that she misled the police by only providing messages from December 12 that painted a picture of her ignoring the accused all day which supported her claim that he had sexually assaulted her. However, defence counsel then confronted the complainant with the complete record of her text message exchanges with the accused on December 12, which is Exhibit 3 on the trial.
33The complainant claimed that she did not provide the police with all the text messages from December 12 because she did not think they were relevant. Defence counsel countered by suggesting that she did not provide the complete record of text messages because they did not support her assertion that she ignored the accused all day. The complainant replied, “I did while I was at work”. Therefore, the complainant’s evidence changed from ignoring the accused all day to ignoring him while she was at work.
34The complete text message chain from December 12 also contradicts the complainant’s claim that she was upset with the accused that day. As the following exchange between defence counsel and the complainant demonstrates, the couple even exchanged mutually affectionate messages that day:
Q. These messages don’t demonstrate any level of anger or upset by you other than being frustrated about dirty dishes, right?
A. Yes.
Q. In fact, over the course of these messages we see some expressions of warmth or affection, right?
A. Yes.
Q. 4:34 p.m. in response to him giving you a compliment that you’re beautiful inside and out, you reply, “Aww, thank you,” with a heart smiley face emoji?
A. Yes.
Q. That’s not consistent with what you’ve told the court about how upset you were and ignoring Mr. M.-F., is it?
A. I was trying to play it cool and calm because I didn’t – I didn’t know what – how to act or believe until I spoke to him.
Q. Well, trying to play it cool and calm is different from your evidence about ignoring him, right? Yes?
A. Yes.
Q. You share a laugh at 4:42 p.m., page three, about the Elf on the Shelf? Right?
A. Yes.
Q. You’re texting, “Ha ha ha,” with a laughing face?
A. Yeah.
Q. So, you said a moment ago the only expression of frustration or anger or upset of any kind from you in these messages is the next messages about the air fryer and the dirty dishes, right?
A. Yes.
Q. And in fact, when you’re expressing your frustration about the dirty dishes, you begin that text by affectionately calling Mr. M.-F. ‘babe.’
A. Mm-hmm, yes.
Q. Right? Nothing in these messages demonstrates a) that you’re ignoring him, right?
A. Mm-hmm.
Q. It also doesn’t justify your belief that he’s acting like he’s done something wrong, does it?
A. Not yet. I didn’t want to say it through text.
Q. It doesn’t justify the belief you shared with the court that he was acting like he did something wrong, right?
A. Okay.
Q. Well, does it or doesn’t it?
A. I don’t know.
Q. This complete picture, Ma’am, I’m going to suggest is just normal banter between the two of you about your kid and your day and the ins and outs of daily life, isn’t it?
A. Yes.
35It is difficult to accept the complainant’s claim that she did not believe these additional text messages were relevant and thus did not provide them to the police. She acknowledged that the reason she provided the texts she did to the police was to support her assertion that she did not respond to the accused’s messages all day. The complete record of text messages from December 12 shows that the complainant did communicate with the accused and the texts do not support her claim that she was angry with him.
36Similarly, the screenshot of the call logs, which is Exhibit 4 on the trial, together with the complete record of the text messages shows that the complainant not only text messaged the accused on December 12, but also called him. Again, the complainant agreed with defence counsel that she provided the screenshot of the call logs to police to support her assertion that she ignored the accused all day.
37However, the call logs show that the complainant placed three outgoing calls to the accused over the course of the day. Ultimately, in cross-examination, the complainant acknowledged that the call logs and complete record of text messages did not support her claim that she ignored the accused all day:
Q. Now, looking at the call log, again we can’t tell the times but we can tell that your calls to [J.] come in between missed calls from him, right?
A. Yes.
Q. You’re not ignoring him, you’re playing phone tag, right?
A. Yes.
Q. And if you look at that text log again, we can actually tell from some of the text messages when some of these calls might have been placed. Because if you have a look at that text document, there’s three messages from [J.] where he’s saying things like, “I will call you back.”
A. Yeah.
Q. So, there’s one at 3:43, right?
A. Yes.
Q. Where he says, “I’ll call you back,” which means there must have been a call from you that he missed before that…
A. Yes.
Q. …right? One at 4:23, “I’ll call you later, I’m in the middle of some training,” which means you must have called him again in between 3:43 and 4:23, right?
A. Yes.
Q. And then one again at 4:30 saying, “I’ll call you back,” right?
A. Yes.
Q. So, again indicating that you must have called him again between 4:23 and 4:30, right?
A. Yes.
Q. Not ignoring him, are you?
A. No.
38In the following exchange with defence counsel, the complainant again concedes, although reluctantly, that her in-chief testimony was discredited by the full record of the text messages that she did not provide to the police:
Q. Your entire memory of this event is predicated on a text message and a representation about ignoring your partner all day that simply isn’t true.
A. I was scared.
Q. “I was scared” is not an answer to the question I just asked you. Is your entire memory of this allegation, as I suggested a moment ago, predicated on a text message and a representation about ignoring him all day that simply isn’t true?
A. No.
Q. Did you lie to the police about ignoring him all day?
A. I did ignore while I was at work.
Q. ‘All day,’ Ma’am, that’s what you said to this court. ‘I was really upset already from the night before and that’s why I didn’t respond to him all day.’ Right?
A. Yes.
Q. Not, ‘while I was at work,’ that’s not what you said, is it?
A. No.
Q. ‘All day,’ leading us to believe that you were so upset about what you say happened that you couldn’t even bring yourself to call or text et cetera, right?
A. Yes.
Q. And as we’ve seen from the messages that you didn’t share with police, that simply wasn’t the case.
A. Yes.
39There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave: R. v. D.D., 2000 SCC 43, at para. 65. A failure to demonstrate avoidant behaviour or a change in behaviour must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons react to acts of sexual abuse: R. v. D.D., 2000 SCC 43, at para. 63; R. v. A.R.D., 2017 ABCA 237, at para. 42, aff’d 2018 SCC 6, at para. 2; R. v. A.B.A., 2019 ONCA 124; R. v. G.H., 2024 ONCA 523, at para. 20.
40In this case, I am not making a finding that the complainant is less credible because she failed to ignore the accused. However, what is relevant, and what diminishes the complainant’s credibility, is the stark inconsistency in her account on this issue. She claimed in her evidence-in-chief that she did not return the accused’s messages because she was angry about the sexual assault. The call logs and the text messages produced by the defence reveal that she did not ignore the accused, a fact she was ultimately forced to admit during cross-examination.
41At the time of trial, the complainant and the accused were still involved in family court proceedings, in which they continued to litigate the issue of the accused’s entitlement to parenting time. Defence counsel advanced a theory that the complainant had a motive to fabricate the sexual assault allegation to gain an advantage in the family court case. In doing so, defence counsel cross-examined the complainant about the timing of her disclosure of the allegation.
42A delay in disclosure, standing alone, does not give rise to an adverse inference against the credibility of a complainant. In assessing the credibility of a complainant, the timing of disclosure of an allegation or allegations is simply one circumstance to consider in the context of all of the evidence: R. v. S.G., 2022 ONCA 727, at para. 43; R. v. D.D., 2000 SCC 43, at para. 65. The timing of disclosure is not irrelevant to credibility. A delay in disclosure can undoubtedly damage a complainant’s credibility, particularly when disclosure is made coincident with the impetus of a motive to fabricate: see R. v. J.M., 2018 ONSC 344, at para. 67, rev’d on other grounds at 2021 ONCA 150.
43The complainant’s first disclosure of the sexual assault was on February 23, 2025, five days after receiving a letter from the accused’s lawyer. The letter said that the lawyer was instructed to bring an urgent motion to return the child to the accused’s care if the complainant failed to confirm the child’s whereabouts and confirm that parenting time with the accused would commence immediately. The letter from the accused’s lawyer, which is Exhibit 2 on the trial, also said that the complainant was not entitled to hold a child hostage from their parent as a bargaining tactic while negotiating parenting terms and that such conduct would not be looked upon favourably by a judge hearing the matter.
44When the complainant spoke with the police officer on February 23, she referenced the letter she had received from the accused’s family law lawyer. Initially, the complainant denied defence counsel’s suggestion that one of the factors motivating her to go to the police was the letter from the accused’s lawyer about the impending motion in family court. However, she then said, “it was one of the factors but there was multiple”.
45On February 24, the complainant was served with an urgent notice of motion in which the accused was seeking parenting time. The complainant acknowledged that she filed an affidavit to oppose the accused’s application, wherein she stated that the abuse recently escalated to sexual violence when the accused raped her while the child was home. She agreed with defence counsel that the allegation she was referring to in her affidavit was the incident that she says occurred in the late hours of December 11 or early morning hours of December 12, 2024. The complainant also agreed with defence counsel that the issue of parenting time remains outstanding in the family court proceedings and that she is using the sexual assault allegation as one of the reasons the accused should not have the parenting time he is requesting.
46The timing of the complainant’s disclosure coincided with the commencement of family court proceedings by the accused seeking parenting time with their daughter. The complainant agreed that she relied on the sexual assault allegation as a basis to oppose the accused’s request for parenting time.
47I am not relying on the myth or stereotype that complainants in sexual assault cases have a higher tendency than other complainants to fabricate stories based on “ulterior motives” and are therefore less worthy of belief: R. v. A.G., 2000 SCC 17, at para. 3; R. v. Kruk, 2024 SCC 7, at para. 36. On the record before me, there exists a potential motive to fabricate which accompanies the delay in disclosure of the allegation. While I am not making a conclusive finding that the complainant fabricated the sexual assault allegation to gain an advantage in the family court proceedings, in the circumstances of this case, I find that the potential motive to fabricate provides a further basis to approach the complainant’s claim that she was sexually assaulted with extreme caution. The circumstances include the delay in disclosure and the other frailties I have identified in the complainant’s evidence, which affected her credibility.
Analysis of the Accused’s Evidence
48In this case, I chose to review the complainant’s evidence first and identify the frailties in her evidence which caused me to doubt the credibility of her claim that the accused sexually assaulted her. I will now move on to assess the accused’s evidence in the context of the totality of the evidence.
49The accused testified that on December 11, 2024, he returned home from work, probably after midnight. In examination-in-chief, when defence counsel asked him what would have happened when he got home, the accused said, “[w]hen I got home I would have taken a shower, had a little something to eat, gotten in bed with [G.], snuggled her, watched something on my phone maybe, and then gone to sleep”.
50When defence counsel showed the accused the text message he sent on December 12 that said, “I enjoyed fondling your dumper last night”, he testified that this message was “referring to snuggling [the complainant] the night prior and touching her butt”. The accused testified that, on December 11 into the early morning hours of December 12, 2024, there was no vaginal intercourse whatsoever. He denied that he had sex with the complainant without her consent in the manner she described in her testimony.
51Crown counsel suggested to the accused that December 11 was unremarkable, and that therefore, it was difficult for him to recall exactly what happened that night. He agreed. He said, “I don’t remember the finer details of that evening, no”. The following was an exchange between Crown counsel and the accused regarding his ability to recall the details he recounted in his testimony:
Q. Okay. Why is it that you remember that night in particular?
A. It was – well, this night was brought up, I mean, it was few months later but not so long ago that I couldn’t remember the, like, vaguely what happened that evening.
Q. Okay. So, why don’t you tell me what you actually remember happening that night?
A. For sure. I went home, I took a shower, I made some food, I got in bed, I snuggled [the complainant], watched something on my phone, I went to sleep.
Q. How did you snuggle her?
A. This same way I normally do. Like, spooning, curling in there, hugging her on the bed. That’s snuggling her.
Q. Okay. And that’s what you actually recall happening on that night?
A. Yeah.
52Crown counsel submits that I should reject the accused’s evidence about what happened when he returned home from work because it defies common sense that he would be able to remember specifically what happened on a night that he admitted was unremarkable. Crown counsel says that the accused’s testimony would have been more believable had he said that this is probably what happened because it was what normally would happen.
53First, I note that the accused made concessions about the limitations of his memory. He acknowledged that he could not recall the finer details of that evening and that the complaint against him was not made so long after the date in question that he could not remember vaguely what happened. He also said that he snuggled the complainant that night the “same way I normally do”.
54Furthermore, the accused tied his memory of having snuggled the complainant to the text message he sent the morning of December 12. He testified that the message, “I enjoyed fondling your dumper last night”, referred to having snuggled the complainant and touched her buttocks the night before. The accused’s evidence is plausible. The complainant was cross-examined about this message by defence counsel:
Q. And the message, the ‘fondling your dumper’ message, quite literally, if we were to take those words at their literal meaning, it’s about touching your butt.
A. Mm-hmm.
Q. Right? Right?
A. Yes.
Q. It’s not about sex.
A. It would be, yes.
Q. No, no, you want us to believe it’s about sex but that message does not say, ‘It was great having sex with you last night,’ does it?
A. I know that’s what he meant, though.
Q. Does it say anything about sex?
A. No.
55Therefore, even the complainant ultimately acknowledged that the text message did not say anything about sex and the accused’s testimony that it referred to having snuggled the complainant and touched her buttocks is consistent with the literal meaning of the words contained in the text message.
56Crown counsel cross-examined the accused about his message “Wowee, your day must have been super busy” and suggested that he sent the message because he had not heard from the complainant all day. The accused agreed, which I find to be another example of the accused making an appropriate concession. Crown counsel suggested that this message and another message he sent at 5:17 p.m. which said, “Okay, it seems like you’re stressing out. We can talk later when you’re not in the middle of stress”, demonstrate that he was picking up on the fact that the complainant was not behaving normally and was stressed about the non-consensual sex that happened the night before. The accused disagreed with Crown counsel and again denied that he sexually assaulted the complainant.
57Crown counsel submits that the accused’s unwillingness to admit that these messages demonstrate that communication between the couple was not normal that day should cause me to reject his evidence. I decline the Crown’s invitation to do so. I note that when the complainant was confronted with the entire record of the text message exchanges between the couple that day, she too was forced to agree with defence counsel’s suggestion that the text messages were “just normal banter between the two of you about your kid and your day and the ins and outs of daily life”.
58I accept the accused’s evidence that, on the night of December 11 into the early morning hours of December 12, he did not have sex with the complainant and did not sexually assault her as she alleged in her evidence. There was nothing in the substance of the accused’s evidence or the way he testified that caused me to doubt his credibility or the reliability of his evidence.
Conclusion
59Having considered the accused’s exculpatory account in the context of the totality of the evidence, I find that I believe his denial. He must therefore be acquitted of the charge. My acceptance of the accused’s evidence is sufficient to dispose of the charge. However, as I stated in these reasons, I have significant concerns about the credibility of the complainant and find that her evidence is not sufficiently credible to meet the burden of proof beyond a reasonable doubt under the third branch of W.(D.).
60The accused is found not guilty of the charge of sexual assault.
Released: December 18, 2025
Signed: Justice J.P.P. Fiorucci