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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: December 9, 2019

Court File No: 17-1035

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

T.N.

Before: Justice Michael G. March

Heard on: November 19, 20, 2018; February 11, 2019; August 6, 7, 8, 9, 2019

Reasons for Judgment released on: December 9, 2019

Counsel:

Caitlin Downing — Counsel for the Crown

Michael Caroline — Counsel for the Accused

Introduction

[1] T.N. stands charged that on or about July 7, 2017, he did commit a sexual assault upon R.E.-S. contrary to section 271 of the Criminal Code.

[2] In its attempt to prove T.N.'s guilt beyond a reasonable doubt, the Crown called three witnesses, the complainant's father, B.E.-S., the complainant's friend, M.S. and the complainant herself, R.E.-S.

[3] T.N. elected to testify. He was the sole defence witness.

[4] At its root, this is a classic W.D. case.

The Relevant Evidence

B.E.-S.

[5] At the time of testifying on November 19, 2018, B.E.-S. was 56 years of age. He is employed by the Municipality of York Region.

[6] B.E.-S. described his relationship with R.E.-S. as "very close."

[7] He was aware that R.E.-S. had commenced a dating relationship with T.N. from the spring of 2017 to mid or early June 2017.

[8] On July 7, 2017, a Friday, B.E.-S. knew that R.E.-S. and T.N. had planned an overnight camping excursion to Algonquin Park. B.E.-S. and T.N. drove there in T.N.'s vehicle.

[9] Unexpectedly, B.E.-S. heard R.E.-S. return home relatively early on Saturday morning, July 8, 2017.

[10] He thought he heard his daughter call to him, "Dad?". He was half asleep in bed at the time.

[11] He stepped into the hallway outside his bedroom. From there, he could hear that R.E.-S. was having a shower.

[12] When she came out of the bathroom, he asked her if she was okay. She provided him with a curt response.

[13] He approached the opening to the bathroom doorway. She screamed at him to get out.

[14] It was clear to B.E.-S. that R.E.-S. was distressed and panicked.

[15] He remained in his daughter's midst. He needed to be there for her. He hugged her. She broke down sobbing.

[16] R.E.-S. could barely speak initially. B.E.-S. tried to comfort her.

[17] It appeared to B.E.-S. that his daughter was seeking from him some form of commitment not to respond with anger at someone else.

[18] B.E.-S. believed he made that promise. R.E.-S. then told him that T.N. had sex with her against her will.

[19] R.E.-S. explained that at no point in time while this was occurring did the topic of involving the police arise. He sensed that his daughter wished for the whole "thing" to go away. She had no desire to report it initially.

[20] He did not wish to pressure his daughter. He wanted to give her full control. Both were reeling at the thought of what had occurred.

[21] Ultimately, B.E.-S. called the police on his daughter's behalf three days later on July 11, 2017. In the meantime, R.E.-S. had spoken with her mother. Her parents had been separated for some period of time prior to July 2017.

[22] B.E.-S. clarified that his decision to contact police was motivated partly by his knowledge that T.N. had aspirations of becoming a police officer.

[23] Earlier, on July 8, 2017, at 5:50 PM, B.E.-S. had sent a text message to T.N. as follows:

[T.N.] I know you raped my daughter. You have a choice-you talk to me or the police. What's your choice?

[24] T.N. responded the same day with three texts as below:

I'll talk to you.

I'm at the courtyard Marriott on eglinton ave E and creekbank Rd if you want to come here or we can meet somewhere

I need to know [B.E.-S.] where do you want to meet to talk please don't get the police involved

[25] Later at 8:03 p.m., B.E.-S. texted to T.N.:

You made your choice clear, now I as R.E.-S.'s father I get to decide whether or not the police will be involved. You need to convince me that you understand that forcing yourself on my daughter as you did is something you accept responsibility for, and that you know how wrong it was. Do you know how much you traumatized her? If you try to play games with me, or try to suggest what you did was not a criminal act, then I will have no choice but to get the police involved. If you are straight with me, and I accept you as being able to man up for what you did, then I will talk to you.

[26] T.N. responded soon after with six texts:

Can we talk over the phone?

I understand what I did was wrong and was a criminal act and I'll never be able to take back what I did to [R.E.-S.] and I know I really traumatized her

I'm not trying to play any games here [B.E.-S.] I do take responsibility for what I did

I'll meet you anywhere and talk to you face to face because I hurt your daughter really bad and I know I won't be able to do anything to fix it and that's my fault

I'm at the courtyard Marriott on Eglinton ave E and Creekbank Road room 208 I'll be here until tomorrow 10 am If not I'll meet you anywhere you want

I fucked up really bad and I'll never be able to live it down or forgive myself and I'll understand if you don't want to talk to me face to face. I deserve everything that comes to me

[27] At 10:01 p.m., T.N. texted further to B.E.-S.:

I don't want to bother you but can you let me know if we are going to meet up and talk?

[28] Soon after, B.E.-S. texted twice to T.N.:

I'm going to think about it. It won't be tonight.

In the meanwhile don't you dare make any form of contact with [R.E.-S.]

[29] T.N. responded:

Ya I won't don't worry and I'm truly really sorry

[30] On Sunday, July 9, 2017 at 5:40 p.m., T.N. texted to B.E.-S. the following:

Hey Sir I know I'm the last person you want to hear from him and I know you said you're going to think about it but I was just wondering if I can get a minute of your time If so can you give me a call or let me know if I can call you

[31] On Monday, July 10, 2017 at 10:33 a.m., T.N. sent a text message to B.E.-S. stating:

I was just wondering if you've decided what you are going to do and [R.E.-S.] left some stuff at my place so was wondering if we can meet up so I can give it to you

[32] On Tuesday, July 11, 2017 at 3:33 p.m., T.N. texted to B.E.-S.:

I want to let you know that I e transferred [R.E.-S.] money and left a message saying I'll pay her back the rest when I get paid

[33] Later that day at 6:38 p.m., T.N.'s text to B.E.-S. read:

Hey Sir I just want to say that I know the situation we are in and you said you needed time to think about what you wanted to do. I just wish I can either talk to you in person or over the phone and if you decided after you want to get the police involved I'll go with you if that's what you want. I can't imagine how [R.E.-S.] is doing but I know for myself that it is killing knowing the fact that I hurt her so much and would never have her back in my live or even talk to her

[34] B.E.-S. explained in giving his testimony that T.N. had texted his daughter, R.E.-S., requesting that he be permitted to speak to him after T.N. dropped her off at home the morning of July 8, 2017. This essentially started the above text message exchange between T.N. and B.E.-S. R.E.-S. was present when B.E.-S. composed the texts to T.N. B.E.-S. wanted her to have some say and some choice in their content.

[35] B.E.-S. clarified that his purpose in texting with T.N. was to try to make sense of the situation. He wanted to know what T.N. was thinking. He wished to motivate T.N. to say what's what. He needed to understand if T.N. would accept responsibility. He knew from his discussions with R.E.-S. that T.N. was trying to keep things from escalating. B.E.-S. denied that he was attempting to exact a confession from T.N.

[36] When B.E.-S. told T.N. to talk to him or to the police, he reiterated that he had no plan at that point to actually contact the police. He was trying to engage T.N. B.E.-S. wanted T.N. to know how serious the matter was. He did not want T.N. to cover his tracks.

[37] B.E.-S. did not respond to any of the telephone calls made to him by T.N., although attempts were made.

[38] B.E.-S. added that he received an unusual telephone call from R.E.-S.'s friend, M.S., earlier on July 7, 2017. He believed that call was placed to him after supper around 8:00 p.m. He did not recognize the incoming number. He did not answer the call. He regretted deeply not having done so.

Cross-Examination of B.E.-S.

[39] Under cross-examination, B.E.-S. acknowledged that he told T.N. that he was a director in an administrative and management role working for the Municipality of York Region.

[40] B.E.-S. confirmed that he ran the first two texts that he sent to T.N. by R.E.-S. He let her look them over. He involved her in their composition.

[41] B.E.-S. agreed that he did not tell T.N. that he was giving any control over the content of the texts to R.E.-S.

[42] B.E.-S. acknowledged that the text offering to T.N. the choice to speak to him or the police placed B.E.-S. in control. B.E.-S. was in the driver's seat.

[43] B.E.-S. conceded that he wanted T.N. to put something into text format. He did not want to talk to T.N.

[44] If T.N. said nothing by way of text, B.E.-S. resolved he would have to go to the police.

[45] B.E.-S. added that he gave no deadline or timeframe to T.N. B.E.-S. pointed out as well that T.N. did not have to answer him.

[46] To B.E.-S.'s mind, T.N. made the choice to talk to him via text.

[47] B.E.-S. clarified that he did not promise T.N. that he would not go to the police.

[48] Rather, B.E.-S. was not convinced that T.N. would man up. T.N. may have chosen instead to engage in damage control.

[49] B.E.-S. agreed that ultimately, he chose to take the matter further when he involved the police.

M.S.

[50] At the time of testifying on November 20, 2019, M.S. was 22 years of age. She was studying at Ryerson University in Toronto. She was in her third year of film studies.

[51] M.S. had known R.E.-S. since grade 12 in high school.

[52] M.S. had never met T.N.

[53] On July 7, 2017, M.S. remembered receiving a telephone call from R.E.-S. around 9:00 p.m. To M.S.'s ear, R.E.-S. sounded scared. R.E.-S. was trying not to cry. Her voice was shaking.

[54] M.S. reassured her that everything was going to be okay.

[55] M.S. then heard a man's voice in the background. R.E.-S. responded with, "I'm coming".

[56] M.S. explained that in the four years that she had known R.E.-S., she was not the type to inconvenience people, or to ask others for help.

[57] In consequence of R.E.-S.'s call, M.S. tried twice to contact by telephone R.E.-S.'s father, B.E.-S. M.S. was not able to reach him.

[58] She then attempted to call R.E.-S. back. R.E.-S. did not answer either.

[59] M.S. did nevertheless receive a text from R.E.-S. explaining that she was making T.N. take her home.

[60] Under cross-examination, when shown the text exchange between herself and R.E.-S., M.S. agreed that the time she received the first text from R.E.-S. was 9:22 p.m. This allowed her to situate when she received the initial phone call from R.E.-S.

[61] M.S. confirmed that it was her belief that R.E.-S. did not want initially to tell anyone about the incident which occurred between T.N. and her in Algonquin Park.

[62] It appeared to M.S. that R.E.-S. was very upset at the time she placed the telephone call to her. There was a tremor or panic in R.E.-S.'s voice.

R.E.-S.

[63] The complainant, R.E.-S., was born August 30, 1998. At the time she testified on August 8, 2019, she was 20 years of age. She was in her fourth year at Ryerson University in Toronto.

[64] R.E.-S. confirmed that she is an acquaintance of M.S. In July 2017, they were good friends.

[65] R.E.-S. testified that her father, B.E.-S. and she are very close. She described him as one of her best friends. It has always been that way.

[66] She remembered that they often went to Algonquin Park when she was a child. She loved it there. She found it to be one of the most beautiful places in the world.

[67] R.E.-S. confirmed that she knew T.N. They dated for a period of time from late March or early April until late June 2017, when the relationship ended.

[68] T.N. was upset when she broke it off.

[69] She tried to redefine their relationship as friends. She felt badly for hurting his feelings.

[70] Prior to ending the relationship, she bought tickets for a trip to Cuba. At the close of the relationship, R.E.-S. realized going on the trip with him would not work. He became angry and emotional over this decision.

[71] T.N. inquired whether she would still go on an Algonquin Park pre-planned camping trip with him. The original notion of going to the park was hers. She considered it an excuse to go camping in any event, so she agreed they would.

[72] Consequently, on Friday, July 7, 2017, they left together for Algonquin Park. T.N. picked her up early at approximately 7:00 a.m. at her home where she was living with her father.

[73] The plan was to stay overnight on the Friday and return on Saturday afternoon or early evening.

[74] They drove straight to the park. T.N. was playing his music. They were chatting. As R.E.-S. put it, "It was lovely."

[75] R.E.-S. reckoned that they arrived at Mew Lake in Algonquin Park at 10:00 or 10:30 a.m. They set up the tent, which R.E.-S. had purchased at Canadian Tire.

[76] They then went for a hike to Bat Lake.

[77] R.E.-S. recalled that T.N. seemed to be quite happy on the hike. Upon their return to the campsite, they decided to change and to go swimming.

[78] R.E.-S. commented that she was careful not to undress in front of T.N. She just wanted some privacy. She wished to reinforce the idea that it was just a camping trip.

[79] After swimming, T.N. said that he was tired. He proposed that they take a nap. R.E.-S. answered, "Yes. Just a nap." T.N. agreed.

[80] R.E.-S. explained that T.N. had a pattern of persistence in his behaviour. She recalled that they had had two discussions about sexual intimacy in the week leading up to the trip to Algonquin Park. During the first one, she left it open that sexual contact was a possibility and could occur. A day or two later however, she made it clear to T.N. during the second discussion of the subject that there would be no sex.

[81] She believed that these conversations occurred in person. It appeared to her as though T.N. did not have any issue with her decision not to have sex during the camping trip.

[82] Notwithstanding, R.E.-S. acknowledged a trip to an intimate apparel retailer, La Senza, to purchase lingerie with T.N. in the days leading up to the camping trip. She linked this acquisition to T.N.'s birthday, and not to the trip itself. She re-emphasized to T.N. that there would be no sex during the trip. As she put it, "That's not on the table."

[83] R.E.-S. did not take the lingerie with her camping. She could not recall whether T.N. spoke to her about bringing the lingerie on the trip.

[84] Before going for the nap in the tent, R.E.-S. changed into tights and one of T.N.'s sweaters. She could not remember how T.N. was dressed for taking the nap.

[85] R.E.-S. zipped herself into her sleeping bag. T.N. asked if they could cuddle or "spoon." In response, she said she did not care if he wished to.

[86] R.E.-S. believed that they were each in a sleeping bag inside the tent. The space between them would have been a couple of feet, she estimated. She was not facing T.N.

[87] Before they fell asleep, R.E.-S. confirmed that he had not begun to spoon her.

[88] R.E.-S. did not recall how long she had been sleeping for, but she awoke to T.N. having his arm over her touching her vagina. Her pants were down. He was penetrating her vagina with his penis from behind as well.

[89] She remembered that she was still in the same position in which she fell asleep on her side.

[90] She could not remember if he got into her sleeping bag, or if he pulled her out of hers. She recalled that her shoulder and knees were still on the sleeping bag at least.

[91] When she awoke, T.N. was not saying anything. It appeared to her that he was attempting to be very quiet.

[92] When she realized what was happening to her, she said words to the effect of "stop" or "no"; however, she had to say it three or four times before T.N. ceased what he was doing. He responded with either "Seriously?" or "Are you being serious?"

[93] R.E.-S. confirmed that she said either "Yes" or "Stop," because T.N. then did stop immediately.

[94] After he did, R.E.-S. fell back asleep.

[95] She did not know if she pulled up her pants before she fell back asleep, or after T.N. called her to come outside. He was suggesting she should probably get up, because she had been sleeping a long time.

[96] R.E.-S. testified that when she woke up the second time and went outside the tent, T.N. told her he wanted to get more wood for the fire. It was her impression that he was behaving like nothing had happened.

[97] She did not talk to him about what had occurred inside the tent until he returned from the store with the wood, and started cooking veggie dogs.

[98] While pouring a glass of limeade, she told him, "Don't ever do that again."

[99] T.N. responded with either, "What?" or "Do what?"

[100] R.E.-S. was confused about why the incident happened, why he did what he did to her, and why he was acting the way he was.

[101] She felt scared. She did not want to be in the situation she was. She never thought it possible.

[102] She confronted T.N. with what he did to her. Then, as she put it, "He started losing it."

[103] He cried. He talked about what a terrible person he was. He told her he was so sorry. He was embarrassed.

[104] She comforted him. She told him he was not bad. She explained while testifying that in retrospect, it was so unfair of him to put her in that position.

[105] R.E.-S. and T.N. next went on a second hike. During that excursion, T.N. said to her, "I was just thinking with my dick."

[106] This comment angered R.E.-S. She could not understand how he could say such a thing.

[107] During the second hike as well, T.N. offered that she should just hit him. She refused. He commented that everything he did was wrong, and his parents' divorce was his fault.

[108] This upset R.E.-S. She was sick of hearing the types of things he was saying.

[109] She decided she did not want to be with T.N., but did not know what to do.

[110] Upon returning to the campsite, R.E.-S. went to the outhouse. While there, she called her friend, M.S. She did not want to tell M.S. about the incident in the tent, but she did want to have M.S. say to her that everything was going to be okay.

[111] R.E.-S. recalled that it was getting on to evening when she placed that telephone call to M.S. She ended the call when she heard T.N. asking her what was taking so long, and asking who she was talking to. He wanted to know if she had called her father, B.E.-S., and what she may have told him.

[112] R.E.-S. stated that she may have lied to T.N., and told him that M.S. had called her.

Voir Dire Evidence of R.E.-S.

[113] During a voir dire, R.E.-S. testified about what she told M.S. She was unsure as to how clear she was with her explanation. It was a short conversation. Basically, she said that she awakened to being assaulted.

[114] After the telephone call ended, R.E.-S. and M.S. texted one another. The nine pages of text exchanges was made an exhibit on the voir dire.

[115] R.E.-S. explained that she felt bad about making her problem M.S.'s problem.

[116] R.E.-S. communicated to M.S. that she was leaving Algonquin Park soon to head home. She told M.S. that her dad would be driving her. That was not true. T.N. would be.

Trial Testimony of R.E.-S. Continued

[117] Testifying on the trial proper again, R.E.-S. explained that T.N. agreed to sleep in the car initially. She did not want him in the tent with her again.

[118] She did not know why he changed his mind about their agreement as to the new sleeping arrangement, but she heard him open his car door and close it again. He asked her if she would mind if he slept outside the tent.

[119] However, he did not remain outside for long. He re-entered the tent and R.E.-S. began to experience a panic attack. She thought she was going to die. She needed to leave immediately.

[120] She recalled that her heart was beating quickly. She was shaking and afraid. She was having trouble breathing.

[121] She felt that she would not be able to get through the night at the campsite alone with T.N.

[122] R.E.-S. testified that she had no gaps in her memory as a result of the sense of panic she was experiencing. Nor did she have any difficulties with her vision. She maintained consciousness throughout.

[123] She reckoned that T.N. realized he did not have a choice. He would have to take her home. That is where she wanted to go.

[124] They settled on him bringing her to her father's place, and afterwards, to her sister's perhaps.

[125] They threw everything into the car. It did not take long to pack up. They made it fit, and they left in a hurry. The tent was not properly folded. It was partly in the back and protruded partly into the front. R.E.-S. commented that it acted as a good barrier between T.N. and her.

[126] She estimated that they left Algonquin Park at approximately 9:30 p.m. During the drive home, there was a huge electrical storm. The power was out everywhere.

[127] T.N. commented to her that he was going to run out of gas. He came up with the idea that if he found an O.P.P. station, the police might give him some gas. Ultimately, he found one, but the police did not offer him any fuel. They did nevertheless allow them both to stay in the police parking lot.

[128] R.E.-S. recalled that they spent a few hours there. She was not willing to sleep directly next to him again. She was not going to risk it.

[129] T.N. was still saying how sorry he was. He should turn himself in. However, it was obvious to R.E.-S. at the time of giving her evidence that this was, to her mind, a strategy he was employing.

[130] That night in the police parking lot, she told him not to when he offered to do so. She knew he wanted to be a police officer. She felt, if he did, he would ruin his life.

[131] On the way home in the morning, T.N. asked R.E.-S. to delete all communication she had had with him and his contact information. He just wanted her to forget about him, so they could move on with their lives.

[132] She believed as well that T.N. was intimating at self-harm. He told her, "I don't deserve to live." R.E.-S. remembered that during the second hike they took, he said he ought to throw himself off one of the precipices they came across.

[133] R.E.-S. recalled that they made it to her home at roughly 6:00 a.m. on Saturday, July 8, 2017. She simply threw all of her stuff on the lawn in haste getting out of T.N.'s car.

[134] Before leaving, T.N. asked her to give him a head start before she went inside.

[135] R.E.-S. did not expect her father and his girlfriend to be at home when she arrived.

[136] She let herself into her home. She called for her father. She then went straight to the shower.

[137] Along the way, she heard her father say, "Hey."

Voir Dire Evidence of R.E.-S. Continued

[138] During a voir dire, R.E.-S. testified that she got into the shower. She cried. When she got out, her father commented, "Hey, you're home early."

[139] She asked him to give her minute. Her nose was running. She was crying very hard and sank to the floor. Her father began holding her to comfort her. He was wondering whether T.N. and she got into a fight. She explained they had not.

[140] She proceeded to tell her father about waking up and being out of her sleeping bag. She related as well how T.N. cried and apologized for what had occurred. She explained that she recounted the incident in the tent for her father because she realized she was not going to be able to have this ". . . be something in my life."

[141] She remarked that her father got very teary when she did. He told her that it was not her fault. She did not do anything wrong.

[142] He told her that what T.N. had done to her was illegal.

[143] Later, he presented options to her. She started to weigh them.

Trial Testimony of R.E.-S. Continued

[144] Testifying again on the trial proper, R.E.-S. explained that she decided to contact police on July 11, 2017. Her rationale for doing so was that there could be other girls, if she did not take action.

[145] Hearkening back to the morning she arrived home, July 8, 2017, R.E.-S. recalled that there was a text she received from T.N. at 10:17 a.m.

[146] It read:

I know you don't want to hear from me or told your dad but I did promise you that I will message you if your dad want to hurt me lmk [let me know] and I'll meet up with him

[147] R.E.-S. explained that she did not respond to this message. She did not want to talk to him, or to open the door to further communication with T.N.

[148] R.E.-S. testified that she believed T.N.'s July 8, 2017 text meant that she did not want to hear from him. She probably told her father what had occurred. Additionally, she understood that T.N. was offering to allow her father to hurt him over what T.N. had done to her.

[149] R.E.-S. confirmed that up to that point in time (i.e. July 8, 2017), T.N. and her father had enjoyed a good relationship.

[150] R.E.-S. testified that she had no contact with T.N. following the July 8, 2017 text she received from him at 10:17 a.m. aside from his e-transfers to repay in instalments the money she had given to him for their planned trip to Cuba.

Cross-Examination of R.E.-S.

[151] Under cross-examination, R.E.-S. was shown three pages of texts between T.N. and her exchanged on or about July 2, 2017. On August 9, 2019, I ruled that T.N.'s counsel would be permitted to cross-examine R.E.-S. about prior instances of sexual activity she had engaged in with T.N. in order to provide essential context to the nature of the relationship they shared. I did so to safeguard T.N.'s right to make full answer and defence. Cross-examination on the unfolding of the relationship between R.E.-S. and T.N. from sexual to platonic, and back to sexual again, was necessary to offer fundamental coherence to T.N.'s narrative, should he choose to testify in his own defence.

[152] The text exchange from on or about July 2, 2017 read as follows:

T.N. - Are you going to be okay

R.E.-S. - Thank you for taking such good care of me. I love you!

T.N. - Love you too

R.E.-S. - And yeah I'm good. Just a little sleepy this morning

T.N. - Okay what was with you this morning

R.E.-S. - Oh that yeah I just wanted to make you feel good, that's all. Sorry I pushed it.

T.N. - No don't if you still feel the same way when I pick you up I'll do whatever you want me to do to you

Okay?

R.E.-S. – Okay [emoji kiss]

T.N. - I just want to make sure that's what you want

R.E.-S. - Thank you

T.N. - You know that I find you attractive no matter what and stuff

Do you still feel the same way you do this morning?

R.E.-S. - I dunno. I mostly feel tired, nauseous and embarrassed

T.N. – Okay

Well are you happy I didn't continue?

R.E.-S. - I don't know that I'm happy exactly but I'm not unhappy

T.N. - What do you mean

R.E.-S. - Like I don't wish we had continued but I also don't think it would have been bad

T.N. - Well if you still want it we can

[153] R.E.-S. recognized the telephone number to which one side of the text conversation was associated as hers. However, she testified that she was not positive if she received all of the texts. She did not recall them. She did not doubt their authenticity. However, she reminded the court that she had erased all texts except one from July 8, 2017.

[154] She conceded that it was very possible she did send the messages attributed to her. When she told T.N., "I love you," she was saying that in the context of the relationship they had. She expresses love to her friends frequently. She could not assist with the actual date the texts were exchanged.

[155] She recounted that the text discussion was prompted by the fact that she became too drunk at a party. T.N. was yelling at her in the car on the ride home. She did not want him to be mad at her.

[156] R.E.-S. confirmed that if she was at work when those texts were exchanged, she was fine. She was not drunk. Nor was she intoxicated in any way.

[157] She concluded that she was not denying that she sent the texts attributed to her. She may well have.

[158] She could not recall with any specificity what the sexual activity entailed when she commented in her text above, "Oh that." She agreed that she was likely speaking of sex in some form. However, it was not particularly memorable for her. T.N. and she had exchanged so many texts. She could not assume that she was pushing sex upon T.N. She may have tried to kiss him. She could not say. It was very possible the text was just about a kiss. Alternatively, it may have related to some other form of sexual activity.

[159] R.E.-S. could not remember the date that she reserved the Algonquin Park camping site for their trip.

[160] Further, on July 6, 2017, she could not say whether she went to T.N.'s residence. She agreed that there had been a mutual decision to acquire lingerie. It had a sexual connotation.

[161] She agreed that the date of the purchase was no coincidence. T.N. had his birthday coming up on July 8, 2017. They purchased the lingerie with the idea of having birthday sex.

[162] However, it was R.E.-S.'s belief that it would actually occur on his birthday after returning from Algonquin Park.

[163] She thought that she had told T.N. that she was not taking the lingerie with her camping.

[164] Furthermore, she thought T.N. understood that there would be no sex on the trip.

[165] In terms of the medications R.E.-S. was taking on July 7, 2017, she indicated that there was birth control and a SSRI [Selective Serotonin Reuptake Inhibitor]. The SSRI was prescribed for her depression and anxiety. She had been taking Ciprolex since she was 14 years of age. She had never been diagnosed with a bipolar condition.

[166] R.E.-S. agreed that she has depressive tendencies. She has scars from cutting herself, but she would not describe herself as a "cutter." M.S. would also have seen those signs R.E.-S. had from cutting herself.

[167] R.E.-S. did not deny that she harmed herself in this manner. She explained her motivation in doing so was to have a means to watch her body heal.

[168] R.E.-S. confirmed that her medications do make her dream, but not in an overly vivid manner. She has never been confused between dreams and reality.

[169] She explained her lack of specific memory, about what had occurred between T.N. and her on or about July 2, 2017 as mentioned in their text exchange, was attributable to the passage of time. She was adamant that she was not expecting any sexual activity to occur on July 7, 2017 in Algonquin Park.

[170] R.E.-S. agreed that T.N. and she engaged in sexual contact at her home on July 6, 2017. She acknowledged that a sexual relationship between T.N. and her existed at that time.

[171] However, on July 7, 2017, she was sure that no sexual activity occurred that morning right after T.N. and she set up the tent. She knew that they did not lie down or spend any real time in it before the first hike of the day.

[172] R.E.-S. confirmed that she was indifferent to any spooning which T.N. may have wished to engage in during the nap. She must have fallen into a deep sleep. She could not say for how long she had been sleeping, before she had her next memory of T.N. being behind her and penetrating her.

[173] She was sure that he did not ejaculate.

[174] She agreed that she was bothered by the fact that she was able just to go back to sleep after the incident of unwanted sexual contact had occurred.

[175] R.E.-S. agreed that there was no physical evidence to suggest sexual activity had occurred when she awoke. They were not loud. No one came to investigate from nearby campsites.

[176] She agreed that it was a "he said, she said" situation.

[177] R.E.-S. testified that T.N. did not want her to tell her father about the incident.

[178] She confirmed that she told the police that she was feeling both "spacey" and "shaky" when she gave her initial statement on July 12, 2017 about the incident in Algonquin Park. She used those words intending to mean that she was both confused and nervous. Her body had been through a traumatizing event. She was clarifying what she was feeling for police.

Re-Examination of R.E.-S.

[179] Under re-examination, R.E.-S. explained that she fell asleep very comfortably for her nap on July 7, 2017. She awoke to someone raping her.

[180] T.N. pretended at first it did not happen. Since then, he has been backtracking, even after acknowledging it had occurred.

[181] At the conclusion of the Crown's case, the defence conceded that the evidence heard during the voir dires was admissible not for the truth of its content, but as narrative, and as circumstantial evidence for assessing the complainant's credibility. Of course, the evidence cannot be used for any oath helping purpose as prior consistent statements.

T.N.

[182] At the time of testifying, T.N. was 25 years of age. He has lived in Canada his whole life. He has no criminal record.

[183] T.N. explained that he met R.E.-S. on an Internet dating website called Tinder.

[184] They began seeing one another in early April 2017. Their relationship ended in late May or early June 2017.

[185] They continued going to the gym together. It was R.E.-S.'s decision to break up. T.N. was okay with that.

[186] In explaining her reasons for the breakup, R.E.-S. told T.N. that he was homophobic. In addition, they were not seeing eye to eye.

[187] During the relationship and even after calling it off, they would stay at each other's places. It was during those times that he would see R.E.-S. taking her medication.

[188] On the first weekend of July 2017, a Saturday, T.N. recalled going to see the fireworks with R.E.-S. Thereafter, they went to the zoo and to T.N.'s friend's birthday party.

[189] According to T.N., everything between R.E.-S. and him was great that weekend. They got along well.

[190] On Sunday, July 2, 2017, T.N. recalled that R.E.-S. had too much alcohol to drink.

[191] After the party ended, they went to T.N.'s house. The following morning, they went to R.E.-S.'s place, so she could get ready for work.

[192] T.N. was shown the text exchange from on or about July 2, 2017. He was sure that the date they were actually texting was July 3, 2017.

[193] T.N. explained that the previous evening, R.E.-S. had pushed sexual intercourse on him. It was also that afternoon evening, somewhere between 3:00 and 5:00 p.m., that R.E.-S. and he booked a camping trip to Algonquin Park.

[194] They intended to stay only one night, July 7, 2017. The following day was T.N.'s birthday.

[195] During the evening on July 6, 2017, a Thursday, R.E.-S. and T.N. went together to an intimate apparel retailer, La Senza. As T.N. put it, "It was not planned." It was an impromptu shopping outing to purchase lingerie in order to spice up their sex life. Essentially, the lingerie was a prop.

[196] T.N. understood that the lingerie would be worn by R.E.-S. on the camping trip. They discussed this subject between them. She used it on the very night it was acquired, July 6, 2017. They proceeded to have sex upon returning home from shopping.

[197] The next day, July 7, 2017, they went to Algonquin Park on their camping trip.

[198] T.N. testified that he picked R.E.-S. up from her home in his Jeep. They then left for the park.

[199] They arrived at approximately 10:00 a.m. They unpacked. They set up the tent. Shortly after, they had sex inside it. It was nothing unusual. Everything seemed normal.

[200] They next went on a hike together. They were gone for a few hours. When they got back, they went swimming at Mew Lake.

[201] Upon returning to the campsite, T.N. suggested that they take a nap.

[202] There were two sleeping bags. Each had his or her own. They were still dressed when they got into their separate sleeping bags.

[203] T.N. refuted what R.E.-S. had to say during her testimony that she had made it clear to him there would be no sex during the camping trip.

[204] However, T.N. agreed with her evidence that he did ask her if they could spoon.

[205] T.N. was clear that they were both still clothed prior to napping. Any touching would have to occur over sleeping bags. He denied that he ever placed his hands under her clothing. Nor did he undress her. Their state of dress did not change the whole time they were in the tent for a nap.

[206] T.N. denied that he ever penetrated R.E.-S.'s vagina while she was sleeping. She did not have to tell him to stop. He maintained nothing happened.

[207] T.N. explained that it was hunger that woke him. It was not anything that R.E.-S. said to him.

[208] He testified that he had not eaten anything during the day. He exited the tent to start a fire. Another hour went by before he called to R.E.-S. to let her know that the food was ready.

[209] He sat in his chair. She sat across from him.

[210] He noticed that she was not her usual self. Her expression appeared different, as was her mood after she woke up. She was "high energy" at the beginning of the day. Then after she slept, she was lower.

[211] He asked her, "What's up?" He then heard for the first time that R.E.-S. was accusing him of having sexually assaulted her.

[212] T.N. responded that he did not know what she was talking about. He did not touch her.

[213] They continued talking. After a while, T.N. walked off. R.E.-S. went to the washroom. When she came out, she suggested that they go for another hike.

[214] T.N. denied that he ever approached the outhouse while R.E.-S. was in there.

[215] During the second hike they took on July 7, 2017, R.E.-S. said to T.N., "I still can't believe what you did."

[216] He asked her, "What are you talking about?"

[217] She then took off. He followed.

[218] T.N. maintained that while camping, he did not admit any wrongdoing on his part.

[219] He denied that he was ever crying.

[220] After they returned to the campsite from the second hike, R.E.-S. told him that she wanted to go home. After a period of time, T.N. agreed to drive R.E.-S. back to Toronto.

[221] During the drive home, T.N. explained that his car was running out of gas. It had made a "bing" sound to warn that his vehicle was low on fuel.

[222] T.N. and R.E.-S. travelled together to a gas station near their camp site. However, the power was out.

[223] T.N. explained that he remembered a friend, who was a police officer, had once told him that police stations have gas.

[224] He located an O.P.P. detachment, but he was told they could not provide him with any gas. At that juncture, R.E.-S. did not raise with the police that she had been sexually assaulted.

[225] The police suggested that they could stay overnight overnight in their parking lot or at Walmart. They stayed where they were at the police station.

[226] In the morning, T.N. located a gas station. R.E.-S. and he then drove back to her place after refueling.

[227] T.N. denied that:

a) she threw her stuff on the front lawn,

b) he sped away, and

c) he told her to remove messages from her cell phone.

[228] T.N. explained that he helped R.E.-S. unpack her things. He simply left thereafter.

[229] Later that day, he received a text from R.E.-S.'s father. Her father made him believe that he was in the driver's seat. He sounded like he was taking charge. Accordingly, T.N. testified that he told her father, B.E.-S., what he wanted to hear.

[230] T.N. clarified that he did not want any police involvement. T.N. was aware of what B.E.-S. did for a living.

[231] T.N.'s position about what had occurred in the tent between R.E.-S. and him did not change. He did say to B.E.-S., R.E.-S.'s father, what he wanted to hear, but it was not true.

[232] Ultimately, T.N. agreed to meet with B.E.-S., but he did not wish to wait too long before this occurred.

[233] A while later, Killaloe O.P.P. contacted T.N. He then surrendered himself at the police station.

Cross-Examination of T.N.

[234] Under cross-examination, T.N. confirmed that he purchased the lingerie on July 6, 2017 for the camping trip. He understood that the camping was to include sexual intercourse between R.E.-S. and him.

[235] They had had discussions about birthday sex. To T.N., birthday sex meant having intercourse when it was your birthday.

[236] However, T.N. could not remember whether the intercourse was to occur before or after the camping trip. He agreed that if R.E.-S. and he went on their trip on July 7, 2017, the sex would not be occurring on his birthday (i.e. July 8).

[237] Although the lingerie was purchased for the trip, T.N. agreed that he did not see it while they were camping. More specifically, he explained that he was not sure whether she had packed it or not.

[238] T.N. denied that R.E.-S. ever told him that there would be no sex while camping in Algonquin Park.

[239] Upon arrival in the park, T.N. recalled that they set the tent up. He was not certain but believed that the Bat Lake trail, their first hike together, was roughly 5 kilometres in length.

[240] When they returned to their campsite, they were both sweating. They decided to go for a swim. To put on her bathing suit, T.N. did not see R.E.-S. go into the tent. She was between his vehicle and the tent. He was near his car.

[241] It did not appear to T.N. that R.E.-S was hesitant to change in front of him.

[242] T.N. did not believe that he changed at all. He was still wearing shorts.

[243] Upon their return to the campsite from swimming, T.N. observed that R.E.-S. changed into tights and a sweater.

[244] T.N. agreed that taking a nap in the tent was his idea. He was exhausted.

[245] Once inside the tent, he asked R.E.-S. if he could spoon her. She told him she did not care if he did. To T.N., the act of spooning was for comfort. When they were together, they typically would spoon and cuddle.

[246] They napped in two separate sleeping bags. T.N. agreed that he put his arm around R.E.-S.

[247] He woke up and decided to make food. She slept longer than she had planned.

[248] When she came out of the tent, she had lower energy. Her moods, according to T.N., were characterized by either lower energy or higher energy.

[249] T.N. explained that R.E.-S. did not say right away that he had sexually assaulted her, but not long after, she accused him of having done so.

[250] T.N.'s first response was to say nothing happened. R.E.-S. nevertheless repeatedly told him that it had.

[251] As T.N. put it, "Her belief is her belief." It was out of his control.

[252] T.N. testified that when he dropped R.E.-S. off at her home, she had no real reason to be upset with him.

[253] T.N. believed that he arrived at R.E.-S.'s around 8:00 a.m. However, he was not paying any attention to the clock.

[254] He acknowledged that he sent a text to R.E.-S. on July 8, 2017 at 10:17 a.m., which read:

I know you don't want to hear from me or told your dad but I did promise you that I will message you if your dad want to hurt me lmk [let me know] and I'll meet up with him

[255] However, T.N. denied that he sent that message because he had sexually assaulted R.E.-S.

[256] He explained that he was sleep deprived. He was operating on four hours of sleep that day.

[257] T.N. agreed that he did Police Foundations courses in college. Those took him a year, or perhaps a few months, to complete.

[258] While enrolled in those courses, he learned some of the basics of the criminal justice system. He understood that police are responsible for investigating crimes, and laying charges.

[259] T.N. also acknowledged engaging in a text exchange with R.E.-S.'s father, B.E.-S., commencing July 8, 2017. This particular exchange occurred after he sent his text of July 8, 2017 at 10:17 a.m.

[260] T.N. denied that the texts were an admission that he had sexually assaulted R.E.-S., or that he had traumatized her.

[261] Generally, T.N. explained that he used B.E.-S.'s words to tell him exactly what he wanted to hear. T.N. claimed that his use of the expression "fucked up" was not inculpatory, but rather in response to B.E.-S. telling him, "you need to convince me." He conceded that he chose to use the words "fucked up."

[262] T.N. also confirmed that he authored the text to B.E.-S. on July 11, 2017 which read:

Hey Sir I just want to say that I know the situation we are in and you said you needed time to think about what you wanted to do. I just wish I can either talk to you in person or over the phone and if you decided after you want to get the police involved I'll go with you if that's what you want. I can't imagine how [R.E.-S.] is doing but I know for myself that it's killing knowing the fact that I hurt her so much and would never have her back in my live or even talk to her

[263] T.N. nevertheless maintained that he did not sexually assault R.E.-S.

[264] T.N. confirmed that he has never suffered a concussion, which has caused him to lose his memory.

[265] He explained that he was exhausted after the swim on July 7, 2017. He needed a nap. He further denied that fatigue has ever been the cause for him to experience memory loss.

[266] He denied he has ever been confused about reality.

[267] He surmised that if R.E.-S. believed in something that was not true, he cannot control that.

Re-Examination of T.N.

[268] Under re-examination, T.N. acknowledged that he used the expression "fucked up."

[269] He maintained that he said what he said in order to "convince" B.E.-S. not to go to the police. He thought it would stop B.E.-S. from going.

[270] He reaffirmed that he never told R.E.-S. that he had sexually assaulted her.

The Issues

[271] The evidence adduced at trial raises the following issues:

a) Do I believe T.N.'s account?

b) If not, does it raise a reasonable doubt?

c) If I do not believe it, nor does it raise a reasonable doubt, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt in T.N.'s guilt?

The Law

Inconsistencies

[272] In assessing the credibility of witnesses, I must, of course, pay close attention to any inconsistencies in the evidence they give. The Court of Appeal for Ontario commented at paras. 12 – 13 in R. v. A.M., 2014 ONCA 769, on this routine exercise of a trial judge as follows:

[12] …Inconsistencies 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.

Coerced Statements Made to Persons Not in Authority

[273] Coerced statements made by an accused to someone who is not in authority must be treated with caution. Often, depending on the circumstances under which the statements were made, little weight will be attributed to them.

[274] In R. v. Black, 2007 BCSC 1360, Parrett J. explained at paras. 64 -65 and 68:

[64] In approaching these statements it must be recognized that once they are found admissible and tendered they are simply another piece of evidence to be considered in the context of the evidence as a whole. The authorities support the proposition that where a statement is obtained by someone other than a person in authority by coercion or similar tactics, a jury should be told that (a) they should be cautious about accepting it; and (b) attach little weight to it . R. v. Hodgson (1998), 127 C.C.C. (3d) 449 (S.C.C.) and R. v. Wells (1998), 127 C.C.C. (3d) 500 (S.C.C.).

[65] The weight to be given a statement or a confession is a question of fact to be determined by the trier of fact after considering the manner in which the statement was obtained and all of the circumstances in which it was given. I have considered, in detail, the whole of the recorded statements made between the accused, members of the RCMP and his girlfriend.

[68] In my respectful view, the overall circumstances of these statements raise significant questions about their reliability. In the circumstances, they must be approached with extreme caution and there should be little weight afforded to them.

Prior Consistent Statements

[275] The existence of a prior consistent statement made by a witness cannot enhance his or her credibility. In R. v. Nault, 2019 ABCA 39, [2019] A.J. No. 122, the Alberta Court of Appeal held at para. 19:

[19] Prior consistent statements are viewed with caution because there is a danger in associating repetition with reliability. The fact that a witness has said something more than once does not make it more likely to be honest or accurate: R v Sylvain, 2014 ABCA 153 at para 74 (per Slatter JA, concurring); R v L(DO) (1991), 6 CR (4th) 277 at 309 (Man CA), rev'd , [1993] 4 SCR 419, 25 CR (4th) 285; R v Engen, 2011 ONCJ 814 at para 84 . Therefore, as explained by David M. Paciocco, "The Perils and Potential of Prior Consistent Statements: Let's Get it Right" (2013) 17 Can Crim L Rev 181 at 186, the common law has developed:

… two important rules that apply even where prior consistent statements are admissible pursuant to exceptions. The first is the "prohibited inference." Even where a prior consistent statement is admitted, "it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth." The second is the "rule against corroboration." Even where a prior consistent statement is admitted, it is an error to treat the prior consistent statement as corroborating the in-court testimony. [citations omitted]

[276] Notwithstanding, there are permissible and impermissible uses to be made of prior consistent statements. In R. v. Dinardo, [2008] S.C.C. 24, Charron J. at para. 37 offered the following:

[37] In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. The challenge is to distinguish between "using narrative evidence for the impermissible purpose of 'confirm[ing] the truthfulness of the sworn allegation'" and "using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility" McWilliams' Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45 (emphasis in original); see also R. v. F. (J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476).

The Burden of Persuasion, Credibility and Proof Beyond a Reasonable Doubt

[277] The onus of proving the guilt of the accused beyond a reasonable doubt remains on the Crown throughout the trial. This burden never shifts to the defence. Most certainly, disbelief of the accused's evidence does not lead to a finding of guilt. The totality of the admissible evidence must be assessed by the trier of fact to determine whether any reasonable doubt still exists regarding the accused's guilt in respect of any offence with which he or she is charged. If any reasonable doubt remains in connection with a charge, the accused, of course, is entitled to an acquittal on that particular count.

[278] In R. v. Johnson, 2011 ONSC 195, [2011] O.J. No. 317 (S.C.), Hill J. stated at para. 124:

[124] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.) v. The Queen, supra at 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore, (2004), 189 C.C.C. (3d) 526 (Ont. C.A.) at 527; R. v. H.(S.), [2001] O.J. No. 118 (C.A.) at para. 4-6 . The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.), at para. 9-17 .

Motive to Fabricate

[279] The defence never bears the onus of proving a complainant has a motive to fabricate. The fact it is not apparent does not mean it must not exist.

[280] In R. v. Batte, [2000] 49 O.R. (3d) 321, the Court of Appeal for Ontario elaborated on this concept at para. 121 as follows:

[121] What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

Analysis

T.N.'s Account

[281] I do not believe T.N.'s account for numerous reasons.

[282] Firstly, the crux of T.N.'s defence is that nothing happened. He did not touch R.E.-S.'s vagina with his hand. Nor did he penetrate her vagina with his penis while she was still sleeping. If she believes he did, she must have been dreaming or hallucinating. Ultimately, this was the position he took.

[283] While I appreciate and agree that T.N. has no control over R.E.-S.'s belief that she was sexually assaulted, he could control how he responded to that belief.

[284] At 10:17 a.m. on July 8, 2017, T.N. invites R.E.-S.'s father, B.E.-S., to hurt him. I do not accept that T.N. would be prepared to suffer potential bodily harm at the hands of B.E.-S. over a false allegation made by R.E.-S. against him.

[285] It makes no sense that if, in reality, nothing occurred of a sexual nature on the occasion in question, T.N. would risk what he was offering. There ought to have been no basis for T.N. to subject himself to any form of corporal punishment, if in fact he had not done anything wrong. He could have left R.E.-S. to continue along in her state of delusion.

[286] Instead, he initiates contact with R.E.-S. based on his promise to supposedly make amends by granting a licence to her father to harm him. He did not testify that he believed her father would not act violently toward him. He did not suggest that B.E.-S. was a passive, sophisticated man, who would not risk being criminally charged himself.

[287] Rather, T.N. was looking for a way to have street justice as opposed to proper justice visited upon him. That was his suggestion, not R.E.-S.'s, nor B.E.-S.'s. It was his preferred option. It was the act of a desperate man.

[288] Secondly, much to T.N.'s chagrin, although R.E.-S. may have been undecided as to whether she would tell her father about what had occurred in the tent in Algonquin Park, it was clear from the first text T.N. received from B.E.-S. that she had.

[289] Thereafter, in a series of text messages which T.N. sends to B.E.-S. on July 8, 2017 and the days following, T.N. is demonstrating a clear consciousness of guilt. He uses words such as "wrong", "a criminal act", "take responsibility", "hurt your daughter", "my fault", "fucked up really bad", "never be able to live it down", "never forgive myself", "deserve everything that comes to me", and "truly really sorry". Some of these words T.N. parrots and adopts from B.E.-S. Nevertheless, the majority are T.N.'s own words used to express his acknowledgement of the wrongfulness of his conduct.

[290] Thirdly, I reject T.N.'s explanation that he had no choice but to do what B.E.-S. dictated he must (i.e. speak to R.E.-S.' s father and say what he wanted to hear, or else the police would become involved). T.N. was well aware that even if he did give B.E.-S. everything he wanted, either R.E.-S. or B.E.-S. could still go to the police. His text of July 11, 2017 at 6:38 PM says as much. It read in part:

I just wish I can either talk to you in person or over the phone and if you decided after you want to get the police involved I'll go with you if that's what you want.

[291] The word "after" connotes a clear understanding on the part of T.N. that no matter what he says to B.E.-S., the option remains for R.E.-S.'s father to go to the police.

[292] Fourthly, I disbelieve T.N.'s excuse for authoring the texts he exchanged with R.E.-S. and B.E.-S. over the span of July 8-11, 2017. I find that T.N. was not simply saying everything B.E.-S. wanted him to say because B.E.-S. was taking charge, was coercing him and was demanding to hear certain things from him. Rather, T.N. knew his only hope was to persuade R.E.-S., or by extension her father, B.E.-S., not to go to the police.

[293] T.N. was well aware that he could not control what B.E.-S.'s belief was regarding what had occurred to her in the tent in Algonquin Park. T.N. was not so unsophisticated as to be incapable of realizing that fact. T.N. tried therefore to manipulate R.E.-S. and B.E.-S. into abandoning their choice, a choice he knew was theirs alone, whether to go to the police or not.

[294] Although there was an element of coercion to the texts authored by B.E.-S. seeking to exact a confession from T.N., they did not overbear T.N.'s will. T.N. had an option – a denial that what R.E.-S. said he did was true. However, T.N. in his own heart knew it was true. Only after police were contacted did T.N. begin to backpedal away from his written acknowledgement of criminal wrongdoing.

[295] Fifthly, I reject T.N.'s evidence altogether that he did nothing to cause R.E.-S. to believe that he sexually touched her while she was sleeping. I do so because I accept R.E.-S.'s evidence that T.N. was threatening to harm himself. I believe R.E.-S. when she testified that T.N. said to her, "I don't deserve to live". I find as a fact that T.N. persuaded her during the drive home from Algonquin Park to erase all communication and contact information she had for him.

[296] T.N. did all of this in a failed attempt to prevent R.E.-S. from sharing with anyone not what she believed happened to her in the tent, rather what he knew happened to her in the tent. Once she spoke to her father about what occurred, T.N. understood full well the jeopardy he faced, and the potential consequences he could suffer. Unfortunately for him, he failed to shut down what he tried desperately to avoid – the launching of a police investigation into his conduct.

Does T.N.'s Account Raise A Reasonable Doubt

[297] Having squarely rejected T.N.'s account, it cannot possibly raise a reasonable doubt in my mind.

On The Basis Of The Evidence I Do Accept, Am I Convinced Beyond A Reasonable Doubt In T.N.'s Guilt

[298] I am.

[299] I believe R.E.-S.'s account of what she says occurred to her while she slept in the tent she was sharing with T.N. in Algonquin Park. In essence, I found her evidence to be candid, forthright and compelling.

[300] I find as a fact that R.E.-S. placed a condition on her agreement to have a nap with T.N. As she aptly put it, it was to be, "Just a nap". That is why she zipped herself in her sleeping bag while fully clothed. T.N. was in his own sleeping bag as well prior to her falling asleep.

[301] I am persuaded that her credibility is in fact enhanced by her inability to say whether T.N. pulled her out of her sleeping bag, whether he got into hers or whether she even pulled her pants back up before falling back to sleep.

[302] Equally, I find that she was dismayed at her ability to fall back asleep even though she had been violated. What must be remembered is that R.E.-S. and T.N. shared an intimate relationship. Sexual intercourse had occurred between them on the day before they went to Algonquin Park together. It was not out of the ordinary for R.E.- S. and T.N. to engage in sexual activity.

[303] I accept however that R.E.-S. chose to set a limit on what T.N. could do to her in an intimate manner prior to napping. It was restricted to "spooning". I find that T.N. clearly exceeded what R.E.-S. gave him authority to do.

[304] Of course, a person who is unconscious or asleep cannot consent to sexual activity. I find that T.N. began touching R.E.-S.'s vagina, and penetrated her vagina from behind her with his penis while she was still unconscious.

[305] In so doing, he committed a sexual assault upon R.E.-S. He applied force to her person without her consent. He violated her sexual integrity by making physical contact with her in the manner that he did.

[306] I accept R.E.-S.'s evidence that she told T.N. to stop as soon as she became aware of what was occurring to her. Out of a misconceived notion based on their history together, T.N. likely believed he had a right to take certain sexual liberties with a sleeping R.E.-S. That is why in response to R.E.-S.'s commands in the tent on July 7, 2017 to stop, he asked her, "Seriously?" or "Are you serious?"

[307] Any reluctance on the part of R.E.-S. to acknowledge the full extent of the sexual activity T.N. and she engaged in on July 2 or 3, 2017 before she went to work does not detract from her credibility. She had been drinking to excess the night before. She could have been talking about a kiss or some other form of sexual activity. She was not trying to mislead the Court by refusing to confirm the full breadth of sexual activity in which T.N. and she engaged. It simply was not a memorable experience for her in the context of a sexual relationship she shared with T.N. over the course of months.

[308] I find that no pre-existing health condition nor drug affected R.E.-S.'s ability to accurately recall what happened to her of an unwanted sexual nature on July 7, 2017.

[309] R.E.-S. had no animus toward T.N. I believe her that when she said she was "spacey" and "shaky" to the police in giving her statement, she was attempting to express her state of confusion and nervousness over the realization of what had been done to her. She was saying what she felt.

[310] I find that R.E.-S. was initially reluctant to tell her father what had occurred in Algonquin Park while she was there with T.N. Indeed, I expect most young women would be trepidatious - not knowing how their fathers may react.

Conclusion

[311] I appreciate that no one except R.E.-S. and T.N. will know 100% for certain what occurred in the tent in Algonquin Park on July 7, 2017, but I find, having assessed the evidence as a whole as called at trial, that R.E.-S. was a credible and reliable historian in recounting what T.N. was doing to her when she awoke.

[312] I am near absolutely certain that she was being truthful and accurate in her account as to the relevant events. I have nowhere near the same confidence in the evidence T.N. gave. I know, of course, I am not to simply compare their accounts.

[313] On a considered assessment of all of the admissible evidence adduced at the trial, I am convinced beyond a reasonable doubt in T.N.'s guilt.

[314] Accordingly, I must find T.N. guilty for having committed a sexual assault upon R.E.-S. on July 7, 2017.

Dated: December 9, 2019

_______________________________

March, M.G., J.

Endnotes

1 R. v. W.(D.), [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.

2 See R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 43.