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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 01 19 COURT FILE No.: Pembroke 21-1028

BETWEEN:

HIS MAJESTY THE KING

— AND —

NL

Before Justice J.R. Richardson

Heard on February 8; 24; 27; March 3; June 9; 23, 2023

Reasons for Judgment released on January 19, 2024

Counsel: Caitlin Downing, counsel for the Crown Adrian Cleaver, counsel for the accused

Introduction

RICHARDSON J.:

[1] NL is charged that he did, on or about the 7th day of August 2021, commit sexual assault on KL, contrary to section 271 of the Criminal Code and mischief, contrary to section 430(4) of the Criminal Code.

[2] KL says that in the dying hours of her marriage to NL, he attended at the matrimonial home and sexually assaulted her. He then urinated, spilled beer and dumped apple sauce in the basement.

[3] NL believes that KL and the investigating officer, who he insisted was corrupt, “set him up.” He denies the allegations.

[4] The Crown elected to proceed by Indictment. NL elected to be tried before this Court.

[5] This case involves the application of the W.(D.) formulation and the assessment of credibility and reliability.

Examination in-Chief of KL

[6] KL is 41 years of age. NL is her husband. She has two children, a daughter M, who is six years old and a son H, who is four years old. KL has been on disability since August 2020. Before going on disability, KL worked full time.

[7] KL and NL were married on August 20, 2015. They have been separated since the events allegedly took place. Prior to separating, the family resided in a single family home in Beachburg. KL stated that she purchased the house before the relationship with NL began. She stated that the relationship started on June 8, 2013.

[8] The parties intended to move to another residence in Laurentian Valley Township, which was owned by NL’s parents. NL’s parents offered the house to them in May 2016 when they were first expecting M. They were supposed to move into the house in the fall of 2020. There was some plumbing and roofing work that needed to be completed before they could move in.

[9] The parties first separated in December 2020. NL moved out. They then reconciled and NL moved back into the Beachburg home between mid-May and mid-July 2021.

[10] When the parties first separated, the children stayed in Beachburg and NL had access. There was an agreement concerning his involvement with the children where the children went to NL’s parents’ residence on Wednesday afternoons and NL would then return them after supper. If there were other times when he wanted the children, the parties worked it out.

[11] KL advised that NL moved out in mid-July 2021 because his behavior had become erratic. She complained that he was verbally abusive and she no longer wanted to continue the relationship under those circumstances.

[12] After they separated, NL returned to the house when she was not there. He collected his belongings the last week of July while KL, M and H were away camping. He then returned again on Saturday, August 7, 2021, which was the day of the incident.

[13] About two weeks before the incident, KL broke the baby toe in her right foot. A couple of days before the incident, on Tuesday August 3, (in evidence she said that the injury took place on the Tuesday right after the long weekend) she broke her ankle.

[14] After KL broke her ankle, the two sets of grandparents took turns watching the children because KL was ordered to have bed rest for the injury to her ankle.

[15] On August 7, 2021, the children were with KL’s parents. KL stated that the children were going to stay with them while she recuperated from her broken ankle. She stated that NL was aware that the children were at her parents due to her limitations. She also stated that the NL’s parents and her parents worked out a schedule for the kids while she was off with her ankle.

[16] KL stated that there was no intention to have the children returned to her on August 7. She could not bear weight on her ankle. The children were active and she was in no position to care for them. It was anticipated that this was going to last for the next couple of weeks until she had an appointment with an orthopedic surgeon.

[17] Until then, there was “no solid plan” for the return of the children. It would all depend on how KL was feeling.

[18] On August 7, 2021, NL was supposed to arrive for dinner (between 6:00 and 7:00 pm). He had told KL that he wanted to talk about things and she agreed. He did not ultimately show up for dinner. KL went to bed. NL arrived much later in the evening. She estimated that he arrived at about 9:30 or 10:00.

[19] When NL arrived, KL was laying on the couch in the living room where she had temporarily set herself up while she was recuperating. She was sleeping or watching TV while she prepared for bed. She explained that the Beachburg house is a split-level ranch-style home and the bedrooms were downstairs. Given her injury and the fact that she was on crutches, it was easier for her to remain in the living room, which was on the upper level.

[20] She recalled that when NL arrived he seemed out of sorts. She stated that he usually came in and greeted her in a friendly manner and asked her about her day. On August 7, he was “grouchy” as though “he was riled up about something”.

[21] She was in quite a bit of pain and she really was not up for talking.

[22] NL started talking about the state of the marriage. He told KL that she needed to be “all in or all out” of the marriage. He stated that he was not willing to waste any more time. KL reiterated that she was not interested in continuing the relationship if he was going to be verbally abusive to her around the children. She stated that she did not want the children growing up believing that is how a man should speak to a woman.

[23] KL stated that NL was “very firm with his words”. It seemed to her that he had put some thought into what he was going to say to her.

[24] She stated that he disregarded her views completely. He approached her on the couch. Initially, she thought that he was going to comfort her and give her a hug, but then he grabbed her wrists and held them over her head. He started to speak aggressively and tell her his demands about how the relationship was going to go. She recalled that his voice was not raised. He was adamant that she was going to hear what he had to say, and she would be continuing in the relationship on his terms.

[25] Although he had grabbed her hands firmly and she was restricted in her movements, she was not hurt. She felt the pressure from him over her whole body. She was lying on her back. She stated that they were “belly to belly, chest to chest and face to face”.

[26] She recalled that she was wearing pajamas which were essentially shorts or pants and a tank top. He was wearing a workshirt and workpants.

[27] She stated that he tried to kiss her. She stated that this was also typical of how he would attempt to calm her down. She asked him to stop and said that she was not interested. She told him that she did not want to continue the relationship because of his verbal abuse and erratic behaviour.

[28] She stated that he did not accept what she had to say. He continued to try to kiss her or escalate things by being intimate and she was not interested. She turned her head to the side to avoid him. She stated that after she did this, he tried harder to kiss her. He told her that she was either going to be with him and make the marriage work or he would make her life hell.

[29] He grabbed her breasts. She believed that he was trying to initiate foreplay. She tried to squirm away. He grabbed her butt. She was still not interested and told him no. She recalled that he tried to close a curtain that was behind the couch. She continued to resist. She stated that he grabbed her right breast and left butt cheek.

[30] She recalled that at one point her leg was between his legs. She asked him if she had to knee him to get him to stop and get off. He laughed in her face and told her to, “Go ahead and try it and see what happens.”

[31] After a few minutes, he got off her. He told her that he was going to have a shower and he would be back. He told her to get ready for him.

[32] She recalled that when he sat up, he sat on her ankle. She cried out in pain. He pushed harder. She told him that he was hurting her and she asked him to get off. He said, “There is always something wrong with you.”

[33] When he got up to go to the shower, he took her cell phone and her crutches and placed them on the other side of the room.

[34] While he was in the shower she tried to get herself together and pull the curtain open. She stated that even though NL had taken her cell phone the house phone was there. She tried to call his parents to ask if they could help her. She reasoned that she could not call her parents because they had the children.

[35] She stated that she was agitated and upset when she was on the phone with NL’s mother, LL. She was also “in disbelief”. She stated that she had never seen him act this way or have “this type of rage” before.

[36] She thought that he could not hear her while he was in the shower, but he must have heard her because he came out of the shower and rejoined her in the living room.

[37] KL stated that LL asked her to put on the speaker phone. LL did not believe what KL told her was happening.

[38] KL stated that NL also appeared to call an escort on his cell phone and discuss an encounter involving him, KL and the escort.

[39] KL said she begged LL to come and get NL. Meanwhile, NL appeared to be on the phone with the escort. He told KL that she was going to need earplugs once the escort arrived, that he was going to have a good time and pay her good money. He discussed “the type of girl that he was going to get” and what he was going to do with her. He said that the escort would do things that KL would not.

[40] LL told KL that what was happening was not really happening. She refused to speak to NL and she refused to come and get him. She told KL that she needed to “lighten up”. She told KL that she needed to laugh more and questioned KL on when the last time she laughed was.

[41] This made KL feel completely helpless and distraught. She could not drive because her ankle was broken. KL told LL that she intended to call the police. LL told her that if she did, she would no longer have their family’s support. They would not help with finances or with the children. She said that LL then hung up on her.

[42] By this time, NL was standing a couple of feet away from her. He was still trying to call the escort but the call did not go through. He told her he was going to have a shower and when he came back she was going to have sex with him.

[43] While he was in the shower, she went and got her cell phone in case he took the other phone away.

[44] When he finished the shower he came back over to the couch. He was wearing a navy towel. He started to initiate sex again. He tried to pull the curtain but he could not hold the towel and the curtain at the same time. He began masturbating with his other hand. He put his penis in her face and was waving it around and telling her to suck it. She told him “no” and waved him away.

[45] He told her to, “Suck it” and stated, “You know you want it.” She began to cry because he was not listening. He got more in her face and told her to cry harder because it was really turning him on. He was going to get off in her face.

[46] He continued to make comments about the state of their marriage. He told her that she needed “to play ball” or he would make her life hell. He threatened to take the children away from her. He told her he would cut her off financially. He said that he was going to force the sale of the home.

[47] Eventually, he stopped and went downstairs. He told her he was going to go to their room “and finish himself off”. He told her that he was going to cum on the sheets and the comforter.

[48] He started telling her about relationships that he had with other women, things that he had done with them, that he had then come home to be with her and been intimate with her after being intimate with the other women.

[49] He told her that she had “tasted other women’s pussy juice off his dick” and she “licked their ass off him.” He gave her specific dates and times when this happened. He told her that he had been with other women throughout their entire relationship, including their wedding day and the day both children were born.

[50] He told her that he did all this because KL “didn’t fuck, didn’t suck and was a shitty wife.”

[51] Finally he told her that he had made it all up to upset her. He told her that he wanted to have a relationship and continue being a family.

[52] She said that she recorded part of the conversation and gave the recordings to the police.

[53] KL testified that NL told her that he was pouring a drink on a bed, dumping beer on her son’s laundry and urinating on the floor. He told her that he was going to leave her with a nice mess to clean up. She recalled hearing the sound of liquid being poured. She stated that when she went downstairs, the next day, the bed was stained.

[54] She stated that NL remained in the home overnight and then left early the next morning. He told her by text to go down and clean up the piss. She stated that the laundry was wet and she could smell beer. She stated that he had smeared apple sauce, Vick’s Vaporub, eyedrops, and hand lotion on the wall. She also smelled pee. He had thrown toilet paper in the spots to show her where it was and it was discoloured.

[55] KL stated that she had not been down in the basement for a couple of days and no one else had been there.

[56] There were two or three empty tall boy cans of beer there. KL stated that NL brought those with him and he started drinking within a few minutes of getting home.

[57] KL took some photos of the damage in the basement. She identified Exhibit 1A as a photo of a liquid substance that has saturated a paper towel or tissue.

[58] She identified Exhibit 1B as an empty beer can. Scattered on the floor near the beer can are potato chips.

[59] She identified Exhibit 1C as a pile of her son’s laundry. The Roots sweatshirt in the laundry is stained with a dark-coloured substance. KL identified that substance as apple sauce. She stated that she did the laundry over the August long weekend (the weekend before the alleged incident) while the children were with NL at his parents’ residence.

[60] KL identified Exhibit 1D as a lid from a Rubbermaid tote. There is an empty beer can visible in the upper centre of the photograph and empty apple sauce packaging in the lower left of the photograph. She stated that this was located near the pile of her son’s laundry.

[61] KL identified Exhibit 1E as the wall in the master bedroom. The dark smudges on the wall are apple sauce.

[62] KL identified Exhibit 1F as another photo of the same wall. This photo shows a curtain on the left of the photo. The curtain is also stained with apple sauce.

[63] KL stated that none of this damage was done when she was last in the basement, which was before the injury to her ankle on Tuesday, August 3.

[64] She complained that when he left the next morning, he also took away her engagement and wedding rings, which she had left the previous morning on a shelf in the living room. She told me that he “taunted” her with them and said that there was nothing that she could do about it. She stated that he laughed at her when he she cried for him not to take them. She stated that he also took some items from the garage. He told her that he would back that evening. He stated that he would return with his father and take out the air conditioning. He told her to enjoy the air conditioning while she could. He stated that they were going to fix the marriage. He would be back the next night and pick up where he left off.

[65] KL called the police around 8:30 or 9:00 a.m. She stated that she was physically and mentally exhausted from what had happened the night before and she did not want to be in that situation again. She said that she was trying to figure out if she had any rights as a joint homeowner to restrict him from coming to the house. Otherwise, she was considering making arrangements to stay elsewhere.

[66] KL stated that NL messaged her and reminded her about “the piss on the floor” that needed to be cleaned up. He continued to make comments that she found upsetting. She stated that the texts also led her to believe that he would back later that night.

[67] She also told me that she had discovered that her car keys were missing.

[68] She called the police non-emergency number to inquire about what she could do to restrict him from the home. She stated that the dispatcher prompted her to provide more information about what happened the previous evening. After she provided this information, they dispatched Constable Graveline.

[69] KL advised that she did not personally know Constable Graveline, but she knew who he was. His sister was married to one of NL’s best friends. When KL spoke with Constable Graveline, she disclosed this connexion to him and he told her that it did not matter. She stated that he reassured her that he had to do his job even if it meant arresting his uncle, cousin or brother. She stated that she was very clear that she was not seeking any kind of intervention from the police. She simply wanted to know what she could or could not do to move forward and avoid another confrontation with NL that evening.

[70] She stated that Constable Graveline informed her that he had a duty to act because her complaint fell under the police domestic mandate. He insisted that she attend at the police station within the hour. She stated that she made arrangements to get herself to the police station in Petawawa and she gave a statement.

[71] Crown counsel asked KL why she did not bring up the sexual assault allegations in the text messaging exchange. KL stated that she was not sure why she would. She only responded to what was sent to her. She did not initiate the conversation. She stated that she was still reeling from what happened the previous evening and she was trying to figure out what to do about it.

[72] Crown counsel asked KL whether she believed that the incident on the couch constituted a sexual assault when she called the police. KL stated, “No. I didn’t know what sexual assault was. I watch American t.v. and it is different than Canadian law. I was under the impression that it took considerably more to be considered that”.

Cross-Examination of KL

[73] In cross-examination about the text messaging, KL agreed that NL was often vulgar and crude in text messaging.

[74] She stated that although NL was at times loud and verbally abusive, he had never been loud and abusive to this extent.

[75] She also agreed that this was the first time that he had ever laid hands on her.

[76] She disagreed with the suggestion that the major sticking point in the relationship was the fact that she owned the Beachburg house and it was purchased before marriage. She stated that her major sticking point was his infidelity. She did not want him coming back to the house because he had left the relationship.

[77] She agreed that they had intended to move to another house on the farm property in Laurentian Valley Township. They were doing some renovations there but the renovations stopped when he chose to leave the marriage and be with someone else. They had moved some belongings over there and stayed overnight but they had not formally taken up residence there. There were some plumbing issues that prevented them from moving in.

[78] KL stated that NL told her that he intended to move his new girlfriend and her children into that house. KL stated that she became aware of the relationship with the new girlfriend between December 2020 and March 2021. She stated that she later became aware that the relationship had been underway for about a year.

[79] KL stated that the previous evening NL had invited her to go to the drive-in and she had declined. She stated that on the night in question NL was aware that the children were not there. She stated that she had been texting both NL and LL. They had told her that they were not able to take care of the children because they were haying and making preparations for NL’s brother’s wedding.

[80] Defence counsel asked KL if LL was “a confidante”. “No, she was my mother-in-law” she said matter-of-factly. She stated that she spoke with LL later in the evening before the incident, sometime after 10:00 p.m. She recalled that they talked about the wedding, haying and some of the animals on the farm.

[81] She stated that she asked LL if NL was at home. LL told her that NL was upstairs at the residence and had been there all night. She denied that LL told her that NL was snoring. She stated that she would have challenged LL on this because she was still receiving text messages from NL when she telephoned LL.

[82] She complained to LL that she had received “very disturbing” messages from NL. LL told her that she and NL should seek counselling. She agreed that some of the messages that KL received from NL were inappropriate. She stated that this conversation would have lasted at least an hour.

[83] KL stated that she has a financial interest in equipment and animals on the L farm.

[84] KL later clarified more about the conversation on August 6 (the night before the incident). She stated that she shared some of the lewd and crude text messaging with LL. She stated that LL’s previous advice to her was “to keep an eye” on NL and “spot check” where NL was. She stated that she did not feel that this was the best way rebuild trust with NL. KL stated that she felt that LL was the only resource she had.

[85] With respect to the text messaging about the rings, defence counsel established that KL told the police that the rings were upstairs on a bookcase in the living room in front of the couple’s wedding picture. He further established that she told police that NL took the rings without even talking to her. She agreed that this was not accurate. She reiterated that there had been a conversation about the rings before he took them. If NL testified that there was no conversation about the rings, she disagreed with this.

[86] Defence counsel put it to KL that the call with LL on the evening in question happened at 9:38 pm. She stated, “If that is when the call was, that’s when it was”. She agreed that the call took place after NL arrived in the home. Defence counsel suggested that KL did not complain to LL about NL’s behaviour at all. KL completely disagreed and reiterated her previous evidence in-chief.

[87] KL agreed that she did not tell LL that NL had assaulted her. When defence counsel asked her why she omitted to tell LL this, she stated that when she had complained to LL about things that NL had done in the past, LL “brushed it off” and was “not supportive.” Defence counsel then asked, “Why call her at all?” KL replied, “I didn’t know what else to do.”

[88] KL did not recall whether LL told NL that he needed to go for counselling.

[89] She agreed that when she called LL, NL had not yet gone to the shower. She stated that “things escalated after me reaching out for help.”

[90] She disagreed that NL was wearing shorts when he returned. She reiterated her evidence in-chief that he was wearing a navy towel that did not wrap all the way around him.

[91] Defence counsel suggested that the beer that was brought was for KL, not NL. He also suggested that NL preferred “hard liquor”. KL stated, “He prefers beer just as much”. She disagreed with the suggestion that the beer downstairs was her beer. She stated that she was “absolutely sure” about this.

[92] Defence counsel challenged whether it was possible for someone other than NL to have caused the damage downstairs. He suggested that it was possible that the children did the damage and she did not notice it before. KL disagreed. She stated that the children ask when they need food and the applesauce stains were at a height that they could not reach. She added that her son just turned three and her daughter turned four and half. They were unable to open a container of apple sauce on their own.

[93] She disagreed that the liquid on the flooring was caused by flooding. Although there had been some flooding in the basement during previous spring, there was no flooding in the area of the liquid. She noted that they remediated the flooding by vacuuming it and they replaced the flooring with a kind of flooring that allows any water to flow under it.

[94] Defence counsel asked KL why she didn’t call 911. She stated that she did not consider it an emergency. She called to find out how to restrict access to the home and whether it was legal to change locks. She answered the dispatcher’s question. She could not be sure if the dispatcher transferred her to Constable Graveline or if he called her back.

[95] She disagreed with the suggestion that she and NL sat with Constable Graveline at the wedding reception for Constable Graveline and NL’s best friend.

[96] Defence counsel suggested to KL that she had NL charged in order to restrict his access to the home. KL stated that at the time, she was not aware of the fact that if NL were charged he would not be permitted to come to the residence. She stated that she was very clear with Constable Graveline that she did not want NL charged. She stated that she was very concerned for NL’s well-being.

[97] She agreed that she had post-secondary education in psychology. She reiterated that she did not realise that NL’s alleged behaviour constituted a sexual assault.

[98] Defence counsel asked, “He didn’t sexually assault you did he?” KL replied, “He did. Now that it was explained to me.” She stated that she realized that this was a sexual assault about a month or so afterwards when she was having counselling through the local women’s shelter. She added that she continued to speak to the Crown and tell them that charges or jail time were not in NL’s best interests.

[99] She elaborated that she came to the awareness that what NL had done was a sexual assault sometime in September or October 2021. She stated that she met with Mr. Lalande (the Acting Crown Attorney) and told him that she was not recanting her statement but she did not support the charges. She stated that she told the Crown that NL “needed help, not jail time.” KL also indicated that she called Constable Graveline and told him that she did not support the charges and would not be providing more evidence. “I did not want any more drama. I wanted the relationship to be over due to retaliation on the family side of things”, she said.

[100] She stated that all she wanted when she called the police was for the police to speak to him and have him stay somewhere else. She agreed with defence counsel’s suggestion that the OPP domestic violence policy intervened.

[101] With respect to the police response, KL stated that Constable Graveline came to the home within a couple of days of her report. He toured the entire home. He did not, to her knowledge take any photographs. She stated that other than the urine, which she cleaned up, she had left everything downstairs as it was.

[102] Using a text message where NL asked KL “R the kids there”, defence counsel put to KL that when NL came to the house on August 7, he did not know the children were not there. KL disagreed. She stated that he knew from previous conversations that the children were not present. She also denied that he asked her if the children were there when he arrived on August 7 and he went to look for them in the bedrooms.

[103] Defence counsel asked KL about one of the conversations with NL that she recorded. I listened to the recording and the following can be heard:

NL: unintelligible KL: No, I said no. I don’t want to be with you. You’re dirty and disgusting. Leave me alone. NL: unintelligible KL: You’re not going to be staying here. NL: unintelligible KL: You’re not staying here. NL: unintelligible KL: No, you’re not. NL: unintelligible KL: I already told you. I’ve tried to talk to you about it. I’ve tried to talk to your parents. The only step I have left is the police. So that is what I will do. NL: unintelligible KL: and a lawyer

[104] Defence counsel suggested to KL that in the last line she stated, “I’m the lawyer”. KL disagreed and stated that in the last line she stated, “and a lawyer”. Having listened to it several times, I agree that the sound is muffled, but I find that she stated, “and a lawyer”.

[105] She stated that she threatened him in this fashion because of what he was doing in their home and to her over a period of hours.

[106] She agreed that she did not tell NL that he had sexually assaulted her. She stated, “I did tell him to stop. I didn’t tell him I was interested. I waved his penis out my face”.

[107] With respect to her statement in the recorded conversation that, “I’ve talked to your parents”, she agreed that she did not tell LL that NL sexually assaulted her. She stated that LL never gave her the opportunity and proceeded to blame her for all of NL’s problems. With respect to whether she had ever spoken with NL’s father, she stated that LL would not let her speak to the father.

[108] With respect to her statement in the recorded conversation that, “I’ve tried to talk to you about it”, she denied that she was referring to his decision to come to the house and stated that she was referring to his behaviour. She disagreed that she went to the police because he was coming to house. She stated that her decision to contact the police had nothing to do with him coming to the house and everything to do with what he did when he was at the house that evening.

[109] Defence counsel put to KL an Affidavit which KL swore as part of their family law proceedings in December 22, 2020. Although she was self-represented, she had the assistance of someone who is a lawyer in drafting the document. KL agreed that the affidavit was detailed. At paragraph 42 of the Affidavit, KL stated, “I admit I don’t understand why the applicant was charged with sexual assault on the basis of my statement.” This would seem to be inconsistent with her statement earlier in her evidence that by her October meeting with the Acting Crown Attorney, she understood that what she was alleging was a sexual assault.

[110] Defence counsel asked KL about her ankle injury. She stated that the surgery took place on August 20 or 23. She saw the doctor on August 9. She stated that the pressure that NL put on her ankle contributed to her injury. She stated that the fracture to her ankle was in place when she returned from the hospital after suffering the injury but before the incident with the accused. She stated that after the accused put pressure on her ankle, the orthopedic surgeon told her that there had been movement in her fracture. She had to have surgery where a plate and six screws were inserted. She stated that she was currently in more pain on a daily basis than she was at the time of the injury. She stated that she also suffered nerve damage.

[111] When asked whether she had any photographs or medical reports that would verify her complaints, she stated that she did but no one asked for them. She stated that she did not contact the police to report that there was further damage to her ankle from what she initially reported.

Re-examination of KL

[112] In re-examination, KL indicated that the children were never left downstairs unattended. She stated that there was a camera to watch what was happening in the basement that allowed her to go upstairs to start supper or use the bathroom.

[113] She reiterated that while she was off with her ankle, her parents cared for the children because she was unable to.

[114] Following re-examination, I asked KL if she was still involved in family litigation with NL. She stated that nothing was resolved and they were still working from a consent order granted by the Family Court last year. She added that the Office of the Children’s Lawyer is now involved.

[115] She frankly told me that, “All of this heartache and headache could have been avoided.” She lamented that she did not have the support of his family. She added, “I was very clear that I didn’t want charges. I was told that was what I had to do.”

Constable Graveline

[116] Constable Graveline has been a police officer since 2006. He stated that he did not know either of NL or KL prior to investigating this matter.

[117] He stated that he came to be involved on August 8, 2021 at about 7:45 am when he was dispatched to this call. When he was initially dispatched, he was told that the call involved harassment and ongoing issues as a result of a separation.

[118] He stated that he called KL back just before 8:00 am and he was on the telephone with her until about 8:30 during which he received more details. He stated that initially, there was no complaint of a sexual assault. He stated that KL’s main concern was their separation. KL did not want to report a criminal offence.

[119] He asked her to attend at the detachment and give a statement. She arrived at 10:37 am. He took a statement until just before noon. As a result of KL’s statement, Constable Graveline formed grounds to charge NL with sexual assault and mischief.

[120] He could not recall whether KL specifically told him that she did not want to proceed with charges. There were, however, other conversations where KL told him that she did not want to proceed. He stated that KL told him that it was a “personal matter” and she thought that the police would come and consult with them as a couple and discuss what was happening.

[121] Constable Graveline stated that apart from a general warning when she completed her statement, he never warned KL about charges of perjury or public mischief.

[122] He stated that when he was taking her statement, it did not appear to him that KL understood that if she disclosed evidence of criminal offences, he would proceed with charges against NL.

[123] The officer stated that that KL’s biggest concern after the charges were laid was the stress caused by the non-communication term that was part of NL’s release order. She complained that they were unable to proceed with anything financial or property related.

[124] Constable Graveline received screen shots of text messages of the conversation between KL and NL. He left it to her to send those screen shots to him, rather than take the screen shots himself because he thought it was “more convenient”. He received screen shots from August 1, 2, 4, 5 and 8 on August 15. He stated that he disclosed these text messages as part of the initial disclosure to the Crown’s office.

[125] On August 18, 2021, he received a call from KL. She told him that she did not support the charges and what took place was a private incident which was “very upsetting”. She told him that she would not be providing further evidence including text messages from August 3, 6 and 7. She complained that the situation was “a nightmare”. She stated that she called the police because she had no one else to turn to. She thought the police would sit down with NL and talk to him. She requested that NL’s conditions be changed so that he could have contact with the children.

[126] He found out that there were more text messages on the first day of trial. He stated that he recalled that KL told him in 2021 that she could not send him additional text messages because his mailbox was full.

[127] He stated that he did not remember taking any steps to confirm that he had received all of the text messages.

[128] The Crown provided Constable Graveline with copies of emails enclosing text messages for August 6, 7, 8, 2021. Although these emails were sent by KL to Constable Graveline’s email address in the same way as the previous messages, he had no recollection of ever receiving them.

[129] This oversight was discovered on February 6, 2023, when KL sent the text messages to the Crown directly.

[130] I note that a great deal of time was spent litigating the later disclosure of the text messages because defence counsel brought an application that the Crown not be permitted to use them as evidence because of late disclosure. Given the way in which the trial unfolded, defence counsel later abandoned that application.

[131] I was surprised at Constable Graveline’s lack of follow-through with respect to the text messages. He should have collected the text messages from KL’s phone himself rather than rely on her to send them to him. It should have been apparent to him that the text messages were not complete. I did not have a strong sense that he even reviewed the text messages that he did receive.

[132] Defence counsel acted appropriately in bringing the application and later reasonably determined that, given the passage of time and how the trial unfolded, it was appropriate to abandon the application.

[133] Constable Graveline stated that NL turned himself in to police at 4:36 in the afternoon on August 8. NL gave a statement until approximately 4:51 pm. Constable Graveline read NL his rights to counsel and caution before he gave the statement. The officer stated that NL told him that he would “just do it” when he was read his rights to counsel and that NL understood the caution. NL was arrested at 5:04 pm. He was then again given his rights to counsel and caution.

[134] The voluntariness of the statement was not contested.

[135] Constable Graveline described NL’s demeanor as argumentative. He was unwilling to listen or allow someone to speak. He stated that their interaction was “just a shouting match” with NL and LL in the parking lot of the police station. Constable Graveline stated that LL accused him of not listening and not investigating. Constable Graveline finally ended the conversation at 5:20 pm by providing NL with his release documents. There was an argument about whether NL would sign the release documents before he ultimately relented and signed them He stated that NL demanded that the officer drive him to the Beachburg residence to pick up a car.

[136] The officer then called KL to discuss a property exchange which included the car. KL stated that she needed the car. He stated that when he called NL to explain this, there was “another blow up on the phone.” He ultimately met NL and LL at a parking lot to discuss this further and Constable Graveline tried to broker an agreement where a third party would attend at the residence to pick up NL’s property. This resulted in another argument between NL, LL and KL with the officer in the middle.

[137] He stated that he had another conversation with LL on August 10. This conversation was initially about whether KL and her daughter would be able to attend a wedding. During this conversation both NL and LL accused Constable Graveline of knowing KL. Afterwards, they wanted to speak to his supervisor.

[138] Defence counsel asked Constable Graveline more questions about this in cross-examination. He said that KL “may have” asked him if he felt that he could take the case because he knew of her through his sister. He did not make any note of it and he did not recall her saying it.

[139] Defence counsel proceeded to suggest that Constable Graveline’s sister and KL went to school together. Constable Graveline stated that he did not know. He also did not recall sitting at the same table as KL and NL when his sister got married. Constable Graveline denied ever working with NL’s father, or attending a hunt camp where NL was present in 2013 or 2014. “I don’t hunt”, the officer stated.

[140] Constable Graveline stated that he was present for another meeting between KL, the Acting Crown Attorney and a representative of Victim Witness Assistance Program on February 18, 2022. At that meeting, KL indicated that she was not willing to testify and she was not supportive of the sexual assault charges. She felt that NL was unwell. She stated that she called the police for support and she was not aware that the charges were going to be laid. She did not support him being charged. She complained that LL interfered and was manipulative. She requested to be able to speak to NL to discuss the end of their marriage.

[141] In cross-examination, Constable Graveline stated that his notes of this meeting were also not provided for disclosure until the eve of trial.

[142] Constable Graveline stated that he did not know that the notes would provide evidence to support the charge. I was quite surprised that an officer of Constable Graveline’s tenure did not understand the basic Stinchcombe obligation to disclose all information with respect to a case that might be relevant, regardless of whether or not it contained evidence which support the charges he laid.

[143] Defence counsel asked Constable Graveline about the house where the incident took place. He stated he believed that he had been in the residence once. He stated that he did not have notes of that attendance. He did not remember what he did when he went there. He stated that the photos that were disclosed were also received from KL.

[144] After a break in the evidence, in re-examination, the Crown established that Constable Graveline located further notes involving the case from August 10, 2021. Those notes included a reference to the officer attending the residence. According to his notes, he visited the residence that day at about 3:30 pm. He did a walk through. He described the purpose of his visit as a “follow up”.

[145] Although he testified that he did not recall going inside the residence twice, he stated that he went back in the residence at about 4:19 pm after speaking with KL over the telephone. He noted, “Basement cluttery. Saw two rolling rock. Apple sauce on the wall. Urine cleaned up. Basement floor is chipboard. Talked about CFSA."

[146] He could not offer any explanation as to why his notes of this visit were not disclosed before trial. He again stated that he relied on KL to send photos of the basement scene as opposed to taking his own photos.

[147] I was surprised with Constable Graveline’s carelessness. Like text messages, photos of alleged damage in a mischief case should not be left to the complainant to make and send to police. I also do not understand why at least two sets of notes that were relevant to the case were not disclosed to the Crown (and ultimately, to the defence) previously. In cases of this nature, where the assessment of the case boils down to the application of the W.(D.) formulation and where the credibility and reliability of all the witnesses is obviously the main issue, the failure to thoroughly investigate and disclose the fruits of that investigation, can have significant repercussions. Constable Graveline should have been more diligent.

[148] I also find his failure to be more careful in noting what KL told him about the possibility of knowing her and NL through his sister and his sister’s husband is troublesome.

[149] Policing an area with a small population like Renfrew County can pose significant difficulties for someone like Constable Graveline, who apparently has some roots and other family in the area. When it has been suggested by the parties that he is investigating that he might know of them through family or friends, he should be taking careful notes of these suggestions.

[150] These concerns made Constable Graveline an easy target for NL who alleges that Constable Graveline and KL conspired to make up the allegations against him. Although later in these reasons, I will completely dismiss that argument, the failure to note with exactitude allegations about the nature of the prior association no doubt fanned the flames of this argument.

[151] Although Constable Graveline’s efforts to investigate and prepare the Crown brief in this case fell far short of what I would have expected from an officer of his experience in a case of this nature, I do not find that the possibility that he casually knew of KL or NL through his sister interfered in any way with his investigation. It was clear that he had no recollection of KL, NL and LL ever raising the possible connexion with him. Only when the nature of the possible connexion was made clear to him by counsel, did he seem to understand why someone might be concerned about it.

[152] What interfered with his investigation was simply a lack of diligence, not the fact that his sister was connected to the parties.

Evidence of DT

[153] DT is KL’s mother. She recalled that in August 2021, KL injured her ankle. Due to the injury, she stated that KL was essentially bed-ridden.

[154] She stated that during this time, care of the children alternated between both sets of grandparents. The children stayed with their grandparents and they would go back and forth to see their mother. She stated that the children were not returned to KL’s care until after KL’s cast was removed. She was not sure of the date.

[155] In cross-examination, DT agreed that there was a birthday party for her grandson H on July 31. Both KL and NL were there. NL’s parents were not there. She stated that the children stayed with KL after the birthday party. She also stated that KL suffered the injury to her ankle about “a week or so” after.

[156] She recalled that KL telephoned her to tell her that she was hurt and needed someone to take her to the hospital. DT recalled that her husband went and took KL to the hospital. DT stayed with the children at her house in Pembroke.

[157] She agreed that she and her husband took them out to visit her after she returned from the hospital for an afternoon. The children did not stay overnight. She recalled that they all stayed in the house and visited and played with the children. NL was not there.

The Text Messaging

[158] A lot of KL’s (and later NL’s) evidence centred around the text messaging records between them on August 6, 7 and 8, 2020.

[159] The Crown sought to introduce copies of text messages between the parties before and after the incidents. The Crown sought to introduce these text messages as evidence going to the accused’s motive to commit the offences and as part of the context or narrative.

[160] I ruled that the introduction of the text messages was not contrary to R. v. Seaboyer.

[161] The content of the text messages from NL, which defence counsel candidly admitted are lewd and crude, are potentially highly prejudicial and potentially run afoul of rules which prohibit the Crown from entering evidence of bad character.

[162] There is the added argument that the text messages from KL are inadmissible as they offend the rule against prior consistent statements.

[163] Text messaging can also be admissible to rebut the allegation of recent fabrication. As the trial unfolded, particularly through the evidence of NL, it became clear that he was alleging recent fabrication on the part of KL. In fact, a central theme of his evidence was the allegation that KL and the investigating officer conspired against him by making these false allegations. As such, the text messages are admissible in order to rebut that allegation.

[164] Text messaging can also be used to cross-examine an accused person on his version of events at trial. In this case, the Crown made extensive use of the content of NL’s text messages for this purpose.

[165] Finally, defence counsel resorted to some text messages from the day before the incident, August 6, 2020, in cross-examination. The Crown then sought to canvass all of the text messages from August 6, 2020 in re-examination. I indicated that, in the interests of time, I would hear the evidence and if I had concerns with admissibility, seek further submissions from the parties and if necessary, disabuse myself of what I heard.

[166] There was one other controversy with respect to the text messages. The Crown was late in disclosing them due to the lack of diligence by the investigating officer in ensuring that the Crown brief was complete. Defence counsel then brought an application that the Crown ought not to be permitted to use the text messages on the basis that they were essentially disclosed at the last minute and therefore constituted an unfair surprise. Later in the trial, when the amount of time that it was taking to complete the case muted the element of unfair surprise, defence counsel abandoned this application.

[167] In R. v. P.C. 2023 ONCJ 434 at paragraphs 261 to 269, I embarked on a lengthy analysis on the tension in the law with respect to the use of text messaging as prior consistent statements, which are normally not admissible, as evidence of narrative and to rebut allegations of recent fabrication. I essentially repeat and rely on that analysis here.

[168] In this case, the accused’s text messages are admissible as a reflection of his state of mind at the time of the incident. Given that the accused testified, the Crown is free to use them writ large to cross-examine him. As discussed, his text messages are often “lewd and crude” and they might be seen as evidence going to the accused’s bad character. Although the lewd and crude nature of the text messages is highly prejudicial, their probative value with respect to the accused’s state of mind has a direct bearing on his mens rea to commit the sexual assault.

[169] The complainant’s text messages are admissible to rebut the allegations of recent fabrication and the accused’s theory that the complainant and the police officer fabricated the allegations.

[170] Her text messages are also admissible to assist in understanding the narrative, including the evidence of what happened the previous evening, the conversations with LL about which the complainant testified, and the nature of the accused’s attendance at the home on the date of the incident.

[171] Finally, her text messages are admissible as circumstantial evidence supporting her credibility: see my discussion of this in P.C., supra, and R. v. Khan 2017 ONCA 114.

The Content of the Text Messages

Exhibit 6 – the Text Messaging Between KL and NL between August 6 at 2:55 pm and August 7 at 7:12 pm

[172] The text messaging between the parties on August 6 and into the early morning hours of August 7 is ugly, lewd and crude. Although it was entered into evidence as part of Exhibit 6, during the Re-examination of KL, it does not assist me in any way and I have ignored them.

[173] There is one message from NL at August 7, 2021 at 12:19 am where he states, “I’ll be sllepin at my house tomorrow night.” This evidence is directly admissible on the issue of NL’s intention to go to the Beachburg house later that evening.

[174] On August 7, 2021 at 12:19 pm, KL texted NL: “Are you wanting the kids this weekend?”

[175] NL replied, “R u going to fuck me U can make this easy or hard its up to u U can move ur stuff to the upstairs im going to live down stairs till the house sells

[176] KL replied, “No….”

[177] NL replied at 12:33, “No i’ll be there tonight its my home to If u don’t fuck me its going to be gell [1] [k] Its up to u if u want this to go smoothly Let me know how you want this to go Ill be home later tonight.

[178] There was a short reply from KL, the content of which does not matter.

[179] NL then replied at 12:39, “Im coming home tonight it can get a lot worse Im staying at my home I can legally stay at home till the divorce is settled if u don’t like it u can stay some were else [K]

[180] There was further back and forth argument between the parties about whether NL would return to the Beachburg house to sleep or sleep in the Laurentian Valley house or whether KL could go stay with her parents.

[181] At 12:51 pm, NL stated, “….u don’t like sleep in the car I don’t care im sleeping in my bed have a nice day.”

[182] At 1:06 pm, NL stated, “My home it [the address of the Beachburg home] Im not like I said it all up to u [KL] im staying in my home till it sells ok have a nice day im busy.”

[183] At 7:00 pm, NL stated, “I can get worse ill be home soon Do u want me to pick u up anything”. KL replied, “I don’t want to see you. It’s too hard.”

[184] At 7:07 pm, NL stated, “Im coming home. Every guys treated u like shit lol What do u want me to pick u up This is all ur fault all u had to do was fuck and clean and cook but u couldn’t Its not my fault u cant have sex or make meals.” KL replied, “You have no need to be here.”

[185] At 7:08 pm, NL stated, “Ya its my home r u going to fuck me If u don’t fuck me this is going to be hell Im staying at my home till the house sells If u don’t fuck me the house is going for sale”.

[186] This evidence is directly admissible on the issue of NL’s intention, if not his insistence that he would go to the Beachburg house later that evening. This evidence is also directly admissible on NL’s desire to have sexual relations with KL and KL’s refusal. I agree with the Crown that NL’s ultimatum to KL is to have sexual relations with him and if she did not, he was going to make her life miserable and refuse to leave the matrimonial home. This evidence also pours cold water all over NL’s insistence in his evidence that he went to the home to see his children. I find that he did not go there for that purpose. His only purpose was to seek sexual relations with KL and to torment her.

Exhibit 3 – The Text Messaging Between KL and NL Between August 7 at 7:13 pm and August 8 at 8:44 am

[187] This text messaging was originally entered by the Crown as part of KL’s examination in-chief as going to narrative. As I have indicated, as the case unfolded, it has become clear that the text messaging is also admissible to rebut the allegations of recent fabrication, and to assist me in assessing the credibility of KL. It is also admissible as going to motive and mens rea of NL with respect to his intention to attend the Beachburg home, have sexual relations with KL, urinate on the floor of the basement of the Beachburg home and take KL’s wedding rings.

[188] There was a brief period between 7:10 pm and 7:22 pm where NL apologized for his other texts and expressed a desire to move forward positively. Even then, there is one exchange where NL is still clear that he intends to return to the Beachburg home: At 7:18 pm, NL texted, “…What do you want me to grab im dleepin in my bed tonight I love u [K] Can we now get back to our normal life or is it going to get worse if we split im going to make it hell”

[189] When KL rebuffed him and instructed him at 7:22 pm, to “Leave me alone. We are over.”, NL returned to his previous tack.

[190] At 7:28 pm, NL texted, “Ok fine u want it this way u want to have it over ill stay at my house you cant U put out and get along with me or the house and everything else is gone where r u going to go [k] Without me ur ficked what r ur parents going to gove u money if ur not going to fuck im hiving u 0 money and living at the house nothing u can do about it So either fix this marriage or go through hell Its up to u Ull owe me about 50000 to walk away from that house Where r u going to get 50000 mm So suck it up cunt and put out Hoarded mess as is would sell in a week.

[191] As the argument raged on between NL and KL through text messaging, at 8:04 pm, NL texted, “Ill be home soon honey”.

[192] There is one text message at 8:47 pm where NL stated, “R the kids there… Ok see u soon my WIFE”.

[193] That is the last text message before the incident took place. As I have pointed out, this evidence confirms that NL was fixated on attending at the Beachburg home the evening or August 7. He was also fixated on having sex with NL. He made it very clear that if she did not agree to have sex with him, he would make the separation difficult. There is no other conclusion to draw from such statements as, “…if ur not ging to fuck I’m giving you no money and living at the house and there is nothing you can do about it. So either fix this marriage or go through hell” and “So suck it up cunt and put out.”

[194] At 7:17 am on August 8, NL wrote, “Ur wedding ring is along beacburg rd”. There is then a further exchange between KL and NL about the wedding ring.

[195] At 7:31 am, NL texted “Fix our marriage u get ur shit in order give me 2 more kids…. …Ill be home tonight have a nice day”.

[196] At 7:36 am, KL stated “I have nothing to say to you. I’ll be contacting a lawyer tomorrow”.

[197] At 7:38 am, NL stated, “U might want to go clean that piss up”

[198] At 7:51 am, NL texted, “…U getter go clean that piss up lol R u happy ull never see that ring again lol Ull never see that ring again. Its aalong beachburg rd maybe ull find it lol”

[199] At 8:10 am, NL texted, “Lol Yes ur usless wife u cant cook u cant clean ur a horrible mother and u cant fuck See u tonight my shitty wife….”

[200] I find that these text messages make the following propositions clear:

a) NL told KL that he took the wedding ring and threw it along the side of the road; b) NL urinated in the basement and he left without cleaning it up. c) NL intended to return to the Beachburg home the night of August 8. d) NL wanted to have sexual relations with KL in order to “fix” their marriage and produce two more children. e) KL threatened to contact a lawyer. This is consistent with the verbal recorded conversation the previous evening.

[201] Any reasonable person in KL’s position would have taken these statements as a clear indication that NL intended to return to the residence the evening of August 8 to torment her further.

[202] This is exactly how the text messages assist me in assessing her credibility. Shortly after 7:00 am on the morning of Sunday, August 8, 2021, when she is injured in her home and after being tormented by NL the night before, her only goal is to do something to prevent him from returning to the matrimonial home that night to torment her more.

[203] Most of the evidence of the torment comes out NL’s own mouth in the text messaging. In this way, as I have pointed out, the text messaging is as much or more so independent evidence of NL’s motive, intentions and mens rea, as it is evidence which assists me in assessing KL’s credibility and evidence which rebuts recent fabrication.

Examination in-Chief of NL

[204] NL is 37 years of age. He works as a toolmaker. He also works on his family’s farm.

[205] He stated that on August 7, 2021 he helped his father bail hay. He stated that when they are “haying”, he often works a 14 to 16 hour day. After he finished working, he intended to go see his children, have a swim with them, and talk with KL about their marriage and take the children back to his parents’ home.

[206] He stated that there was talking and texting throughout the day. He was shown the text messaging and he admitted being the author of the text messages. When asked whether the text messages were “not particularly nice”, he stated “Some of the words I used were not very good.”

[207] He explained that he spoke with KL at around 10:00 am and after lunch. He stated that she left him a voice mail that she could not handle the children. She asked him to call back and get the children. He explained that he believed that KL would have used the landline at her residence because cellular reception there is not very good. He stated that the conversation lasted about ten minutes. He was sure that he heard the children in the background. He stated that he could hear the TV and it sounded like cartoons were on.

[208] He stated that he ultimately got to the residence at about 9:00. He had not had anything to drink. He denied purchasing alcohol on the way. He stated that he quit drinking New Year’s Eve of 2020.

[209] He stated that he sent KL texts as he was approaching the residence. He had not had dinner. He had not eaten since lunch.

[210] When he got to the residence, he entered through the carport and the front door. He stated that KL was awake. He stated that he had last stayed there earlier that week.

[211] KL was on the couch about 16 feet away from him. He stated that they had an argument about where the children were and about their marriage.

[212] By the time he got there, he was too tired and exhausted to have dinner.

[213] When he went to take a shower, he noticed that the children’s training potty was full of urine. He decided to leave it until the next morning. He said that his shower lasted twenty minutes to half an hour. He changed into some shorts that he had brought with him for the purpose of swimming with the kids.

[214] He denied grabbing KL or getting on top of her.

[215] When he got out of the shower, KL was on the phone with his mother (LL). The phone was “on speaker”. They were talking about the fact that KL refused to get help with their marriage. They also talked about the fact that the children were with DT and her husband (“the other grandparents”). He stated that this conversation lasted a couple of minutes.

[216] He stated that he said that he was going downstairs to go to sleep. He reiterated again that he was exhausted. He complained of the extreme heat while haying. “I was beat” he told the Court.

[217] He denied masturbating in front of KL.

[218] He denied encouraging KL to have sex with him. He denied waving his penis in her face.

[219] “The closest I got to her was 16 feet away”, he said.

[220] He denied taking her cell phone or the crutches.

[221] He stated that he went to bed and he did not continue with any conversation with KL.

[222] Defence counsel showed him the photos. He denied causing any of the damage in the photos.

[223] He stated that the next morning, he got up at 5:00 am. He denied going upstairs and having a conversation with KL. He stated that he put on a clean shirt. He was still wearing the shorts that he donned after the shower the night before. He grabbed his stuff from the nightstand, which included two wedding rings.

[224] Outside, he grabbed some gas cans and a small ladder. It was his intention to get gas for the lawnmower. He needed the ladder to work on the hay bailer.

[225] He stated that he believed KL was still upstairs lying on the couch. He did not see her or speak to her. He denied taking the wedding rings from upstairs. They were downstairs. He took them because he realized that the marriage was over.

[226] He denied throwing them out on the road, which is what he told KL by text message. He stated that he believed he still had the rings.

[227] He stated that his text message to KL “about the piss” was referring to the urine in the children’s training potty.

[228] He stated that he went to the farm and bailed hay.

[229] NL reported that he met Constable Graveline several times before. His first recollection of meeting him was at his brother-in-law’s hunt camp in 2013. He stated that Constable Graveline’s father and his father worked together. He stated the Constable Graveline told him some stories about his dad. He stated that he met Constable Graveline again the next year and they had a similar conversation. NL also recalled meeting Constable Graveline’s children. He stated that he knew Constable Graveline’s sister because she is married to his best friend of twenty years. He recalled sitting with Constable Graveline at the head table at the wedding reception.

[230] NL stated that although he works seven days a week, his kids mean the world to him. He stated that when he gets mad, he “blows off the handle verbally”. He denied ever being physical. He again stated that he quit drinking in 2020.

[231] He complained that KL drinks to excess.

[232] He stated that on the night in question, he was going to bring her chips and pop. He did not do so because she did not wish any.

[233] He stated that when he was arrested, he was confused and worried about his children. “I can get loud”, he said. He added, “I guess I was loud”.

[234] He again denied sexually assaulting KL. He also denied the mischief.

Cross-Examination

Taking the Wedding Rings

[235] In cross-examination, NL stated that he took the rings because he thought the marriage was over.

[236] Crown counsel asked NL about a statement that he gave to Constable Graveline in which he stated that he did not take the wedding rings. NL stated that he did not trust Constable Graveline because “he’s a dirty cop”. He added that KL knew him. He stated that he believed that Constable Graveline has told people where RIDE programs are. He then stated, “They are my rings. I gave it to her. I bought them.” When Crown counsel suggested that they were gifts, he stated, “They are my rings as well.” He testified that he was afraid that Constable Graveline would steal the wedding rings. He stated that he thought Constable Graveline would get a search warrant to get the wedding rings. He stated that he believed that they were somewhere in his mother’s house.

[237] The Crown returned to this area later in cross-examination. This time, NL stated that he was “half asleep” and he “just took the rings”. When asked if he intentionally or accidentally took them, he stated, “I intentionally took them because the marriage was over.”

[238] Crown counsel asked NL if he had KL’s permission to take the rings. He did not answer the question. Instead, he stated that KL told him that the marriage was over. He stated, “She could have said that she was done with the rings”. He then stated that, “She said I was a disgusting pig, the marriage was over and she didn’t want her wedding rings. Yeah, she said it.”

[239] Referring to the text messages where NL told KL that he threw them out on the roadway, he stated, “No, I wouldn’t litter like that.” He admitted to lying to KL when he told her that he threw them out on the road. When Crown counsel asked if he was trying to hurt KL, he stated, “She said I wanted to give them to my daughter. I was a religious person when I was younger and it is bad luck to give them to her.” Crown counsel persisted, “But then you taunted her about the rings?” Instead of answering the question he stated that there “was lots of taunting back and forth.”

[240] At this point, NL looked at Crown counsel and asked, “Are you here to torture me more? I've missed my daughter's birthday. This has been hard on me.”

[241] Crown counsel then specifically put the content of the text messages relating to throwing the rings out on the side of the road to NL. He stated, “I don’t know what I was thinking.”

[242] Crown counsel then specifically put NL’s statement to Constable Graveline where he stated that all the rings were still at the house. Crown counsel stated, “You lied to Graveline when you told him that all three rings were still at the house?” NL repeated that he did not want his daughter to get them and he did not trust Constable Graveline.

[243] Crown counsel asked NL what he meant when he said, “I don’t have them.”. NL stated, “I meant I don’t have them on me.” At this point, NL finally relented and stated, OK. OK. I lied about the rings. Can we just move on?” What is clear, however, is that not only did he lie about the rings, but he tried to suggest to Constable Graveline that KL was lying about the rings in order to have him charged. When asked to explain this, he stated, “I was worked up at this point.” He also stated, “I wasn’t referring to the rings at that point.”

Constable Graveline’s Integrity and Allegations that He Did Not Do a Thorough Investigation

[244] The theme of Constable Graveline being “dirty” and being involved with KL to “set up” NL was evident throughout NL’s evidence. He also stated that he was worried for his safety as soon as Constable Graveline called him. He stated that he was worried for his job because he has a job that requires security clearance. When Crown counsel asked him to elaborate further about how this could impact his safety, NL stated, “My job is my safety.” He stated further, “I was afraid him [Constable Graveline] and KL had something going on.”

[245] Crown counsel asked NL to elaborate what he meant by this. NL stated, “Because he told me that the incident happened.” He stated that days later he and his mother raised Constable Graveline with Constable Graveline’s supervisor and they were ignored.

[246] When Crown counsel asked NL about being concerned that Constable Graveline was impartial, NL stated that he did not understand what “impartial” meant. He went on to add that he did not think that the officer was doing his job. He admitted to telling Constable Graveline’s superior officer that he was worried about a conspiracy between Constable Graveline and KL.

[247] For example, he complained that Constable Graveline did not take fingerprints from the beer cans and the apple sauce containers in the basement. He also believed that the officer should take DNA to compare to the urine. He accused Constable Graveline of laughing at him when he left the station after trying to give a statement.

[248] NL admitted that despite being afraid of Constable Graveline, he attended and gave a statement.

[249] He agreed that Constable Graveline asked him what his version of events were. He disagreed with the suggestion that Constable Graveline was “investigating” as opposed to charging him. He agreed that Constable Graveline seemed polite during the statement and added that when he was on video the officer was polite. Outside the station, however, he stated that officer was impolite.

[250] “I didn’t trust him”, he stated. “He didn’t investigate proper”. He also accused Constable Graveline of not taking a proper statement from LL.

Denial of having an Argument with KL

[251] In cross-examination NL agreed that he and KL had an argument about where the children were located and the state of their marriage on the date in question. Crown counsel then put it to him that in his statement, he told Constable Graveline, that everything was “normal” and “nothing serious” had occurred. To this he stated, “I believe I told him we had an argument.” He then added, “I was heat exhausted and I was tired” when he spoke to the police.

[252] Crown counsel asked NL if he was hoping to reconcile on the day in question. “I was trying to make something out of it and figure out the mess”, he stated. He then complained again about being tired. He stated that he wanted to make it work for his children. He stated that it was a stressful day. He was worried about his children. He complained of being “exhausted” and “ready to pass out” from “working 16 hours in the heat.” “I was done fighting and arguing”, he stated.

Whether or Not NL Urinated on The Floor, Smeared Applesauce and Dumped Beer

[253] Crown counsel asked NL about text messages he sent to KL on August 8, 2021 where he told her that, “U might want to go clean that piss up.” And, “You getter go clean that piss up lol.” NL stated that he was referring to the urine in the children’s training toilet. He did not admit that he was the one who urinated.

[254] Crown counsel then asked NL about recordings that KL made of him from August 7. The Crown asked NL whether he remembered having a discussion with KL where she yelled at him not to pee on the floor and complained that it was disgusting. NL stated that he did not remember and alleged that the recording took place while he was in the shower. He then stated that by that point, KL and LL were on the phone. He stated that he went to bed. Later he stated, “I’m under extreme stress. When I get a chance to sleep, I’m out.”

[255] When Crown counsel directed him to a male voice on the recording, he stated, “I’m not sure I’m the guy on the phone.” He then stated that he was in the shower and that was why his voice was muffled. He then stated, “She made it up because I never heard it.”

[256] When Crown counsel suggested to NL that other than KL, he was the only person there that evening, he incredulously stated, “Someone could have come through the door and up the stairs. My hearing is bad from driving equipment for 30 years. Someone could have come in the house that night.”

[257] Crown counsel suggested to NL that he peed on the floor in the basement to humiliate KL and make her clean it up. “No I did not”, he stated.

[258] He agreed that he believes that the allegations regarding the apple sauce and the beer were false. He agreed with the suggestion that KL did that to set him up. He stated that he did not see any apple sauce on the walls, and he did not see spilled beer when he was downstairs before he left on August 8.

[259] Crown counsel then directed NL to the statement he gave to Constable Graveline. In that statement, the officer asked NL about pouring beer, peeing and apple sauce. NL stated, “That was all there, probably from before.” NL explained this inconsistency by stating that he had been working “in the heat” when he gave the statement to Constable Graveline. He added that he was suffering “severely from heat stress” and he was upset because the officer was not doing his job. He stated that the children routinely make messes throughout the house. He stated, “Now I realise when I see the evidence of these pictures that was not there. I was confused. I was in shock.”

NL’s Insistence that he went to the Residence to See His Children and Whether he stayed there between August 3 and 7

[260] Crown counsel challenged NL on his evidence in-chief that he attended at the residence to see his children. Given that it was approaching dark, if not dark when he arrived at the residence, Crown counsel asked NL if he would have gone for a swim with his children in the dark. NL replied that there were big lights in the back yard. Crown counsel suggested that the children were too young – three and four and half – to be up swimming that late. NL disagreed. He said that the children were extremely active. He stated that given KL’s injury to her ankle, “They would have been up and ready to go.” He also stated that it was a way for him to clean up from working all day.

[261] He went on to state that he “had no idea” that the children were with their maternal grandparents. He alleged that he heard them on the phone when he and KL had an argument earlier that day.

[262] He disagreed with the Crown’s characterization that he went to the residence in order to have a confrontation with KL. He disagreed with the Crown’s characterization that a visit with the children was a pretense for doing so. Crown counsel asked, “You knew she didn’t want you there?” He stated, “It was still my home. I can go to my home.”

[263] NL agreed that he did not stay at the house the night before (August 6). He disagreed that he did not stay there because KL did not want him there. He stated that he was too tired from “wrenching on stuff” (working on equipment). Otherwise, he stated that he would have gone because it was his home.

[264] He disagreed that he moved out of the residence at the end of July and was staying with his parents. He stated that he could not afford the rent at his parents’ residence. He stated that he did not move out of the residence where KL was until he was told to do so by Constable Graveline.

[265] He could not remember if he stayed with his parents on August 5.

[266] When asked by Crown counsel whether he stayed at the residence KL was at between her injury to her ankle and August 7, he stated, “I believe so”. In order to assist him with is memory, Crown counsel asked, “You spent nights there when she was on the couch injured?” Instead of answering the question, NL offered that KL fell on the stairs quite a few times and was purposely trying to injure herself to avoid going back to work in order to avoid a conflict with her manager. Finally, he stated he could not recall whether he stayed there August 3 or 4. He stated that he stayed there at some point during that week because he had to get clothes.

[267] The Crown then returned to the issue of the presence of the children between August 3 and 7. Now NL indicated that he did not know whether the children stayed there at night. He surmised that his in-laws had a hard time controlling the children and he guessed that the children “probably” stayed there. Although he insisted that he stayed there at some point between August 3 and 7, he could not recall if he saw the children there when he did. He offered that he called “lots” on the phone and he could hear them in the background on the phone.

What He Meant by Fix the Marriage and “Balls Deep” and Whether He Wanted to Have Sex

[268] Crown counsel asked NL what he meant by text messages to NL on August 6 at 11:31 pm, 11:45 pm and August 7 at 12:19 am when he used the expression “balls deep”. NL stated that he was not sexually attracted to KL and he could have been referring to being “balls deep” in a piece of equipment, something being up with the cows on his farm or something being up with the children. He denied that this was a reference to sexual activity with KL.

[269] He admitted to lying to KL about involvement with other women.

[270] NL denied that his text messages to KL on August 7, 2021 at 12:26 pm (“R u going to fuck me”), 12:33 pm (“If u don’t fuck me its going to gell [k]”) and 7:08 pm (“Ya its my home r u going to fuck me”) made it clear that he wanted to have sex with KL.

[271] He denied that he threatened KL that there would be repercussions if she did not have sex with him. “That’s not what I meant. I don’t recall. I didn’t mean it that way.”, he said.

[272] NL stated that he was in a bottomless or snowball verbal argument with KL. He told the Crown, “I was exhausted at that point. I don't know how to answer you. I'm not good with words. I didn't threaten her. I know it sounds like that but that wasn't what I meant.” NL did not state what he did mean by those words.

Evidence of LL

[273] LL is 57 years of age. She does not have a criminal record. She works for the same employer as NL and has done so since 2009. She lives with her husband in Laurentian Valley Township. They have two farms.

[274] She stated that NL has been staying with her since the day he was charged. Prior to that he was living in Beachburg with KL and his children H and M.

[275] She stated that KL woke her up in the early morning of Saturday August 8 by calling her. They had a conversation which lasted for more than two hours. She stated that KL yelled at her and complained that there was an “orgy going on” in KL’s house. She stated that KL started talking about sexual things. LL stated that she asked KL where the children were. She also stated that she knew that NL was sleeping at the farm. She believed that this was the case because she walked out to the kitchen and saw NL’s truck in the yard. She then said that she could hear NL snoring upstairs.

[276] She stated that the call ended at 2:30 am. They got up early the next morning. NL was at home when she got up. That day, they did some work on two of their properties. She saw NL on and off that day. He came home for lunch.

[277] She recalled getting a text message from KL asking if she and her husband wanted to take the children. She said KL told her that she was not able to reach NL. She recalled telling KL that she would check in after lunch.

[278] LL believed that the children would be returning home to Beachburg at about noon that day. She said that she discussed seeing the children with NL at lunch. He told her that he was going to take the children for an evening swim and put them to bed. KL was “laid up”. She surmised that this conversation occurred during a later lunch – probably around 1:00 pm – because they work until the hottest part of the day and use the lunch hour as an opportunity to get out of the sun.

[279] She believed that NL came home before going to Beachburg. She thought that this occurred between 6 and 8 pm. She recalled that they had a further conversation about seeing the children in Beachburg. He reiterated that he was going to take them for a swim and complained of being tired from working.

[280] LL stated that KL called her sometime between 8 and 10 pm. She recalled that KL phoned her from the Beachburg land line. The conversation lasted for fifteen or twenty minutes. KL told her that there was orgy going on. It was a repeat of the earlier call. There was yelling on the phone at the start of the conversation.

[281] She stated that she asked KL to put the phone on speaker so that NL could take part in the conversation. She stated that KL told her that NL was in the shower. She stated that the orgy talk stopped. She asked where the children were and she was told that they were at their maternal grandparents.

[282] She recalled that NL was part of the conversation. His voice was very clear in the first part of the conversation. She claimed that she could hear his footsteps and he was yelling. His voice was changing and it sounded to her like he was going downstairs. She said that NL told her he was going downstairs. KL told her that she could not go downstairs because of the pain in her foot.

[283] LL remembered telling NL and KL that they needed counselling. She said that NL agreed to it but KL did not answer that part of the conversation. She stated that KL did not tell her that NL had assaulted her. She said that she asked KL “those hard questions” if she was suicidal, hurt or needing help. She stated that KL did not ask her to come and get NL. She believed that he was going to sleep. She denied that KL told her that NL was out of control. She denied that KL said anything about calling the police.

[284] Defence counsel asked LL if she told KL that if KL called police, she would be cut off from the family. LL’s answer was odd. “That’s a hard question to answer”, she stated. “I have healthy boundaries.” When defence counsel followed up and asked “What did you say?”, LL stated, “I didn’t want to be abused.”

[285] She stated that in August 2021, NL was not drinking. “I think [NL] was making a firm decision on alcohol” she stated. Defence counsel asked how long before August 2021, NL had stopped drinking. Instead of answering the question, LL looked at me and stated that she had always been an advocate for sobriety. She then stated that the discussion did not really come up.

[286] She recalled that NL and KL drink beer. She has seen KL drink at social gatherings. She did not recall what brand of beer KL drank.

[287] She recalled taking NL to the police station the next day. She recalled meeting Constable Graveline to whom she first referred to by his first name. She stated that NL was concerned right away that Constable Graveline knew him and he wanted a different officer. She stated that NL also wanted Constable Graveline to go to the house and see it for himself.

Cross-Examination of LL

[288] LL stated that she had a close relationship with NL. She sees him regularly.

[289] She denied ever counselling him about the use of alcohol. She denied that he has ever struggled with how much alcohol he consumed.

[290] When Crown counsel asked LL if she told KL that she would make her life difficult if she called police, LL stated, “I believe KL was telling me that I wouldn't see my grandchildren anymore.”

[291] Referring to the telephone conversation, Crown counsel asked, “She wanted you to remove NL?” LL stated, “She wanted me to fix her problems”. When Crown counsel pressed, she again denied that KL called her and asked her to come get NL and said that she would have retrieved him if she had been asked to do so.

[292] She stated that KL was threatening her for medication for help with the pain in her leg. “I won’t do that”, she stated and she started to cry. She then complained of missing seeing her grandchildren.

[293] She stated that while KL was nursing her ankle, she and the maternal grandparents “were working together” to help look after the children.

[294] She stated that she did not think that the children were spending any time with KL in Beachburg during the day. LL believed that they were staying with both grandparents. She believed that NL returned to Beachburg at night to spend time with the children. He was looking after them because she could not. Despite this, she also stated that there were definitely times when the children would have sleepovers with their maternal grandparents. She also stated that sometimes they would split the grandchildren up between grandparents.

[295] She stated that she did not notice anything irregular about NL’s consumption of alcohol. If anything caused a change in his consumption of alcohol it was “toddlers and sleep deprivation.” She was not aware of any decision he made to stop drinking. She told me that she was a big advocate of MADD (Mothers Against Drunk Driving) and she is a mental health advocate where she works.

[296] LL agreed that from her perspective, KL and NL were still in a relationship until the police got involved. She believed that NL was still trying to make the relationship work. She did not believe that KL was open to counselling. She described this revelation which she said came out in the phone call with KL as “a shock” and “the highlight of my life.”

[297] She stated that from her perspective both KL and NL needed help. They had issues with the two young children and they needed help. She suggested that COVID also played a factor.

[298] She described KL’s demeanor during the phone call as “real”. “What she was telling me was real for her”, she stated.

[299] She agreed that she had difficulty with Constable Graveline. She stated that she went to the police station and offered to give the officer her phone to corroborate her evidence that when KL called her, NL was sleeping at the farm in Laurentian Valley. She stated that the officer did not take a statement from her. She stated that on the following Monday (August 9) she followed up with Constable Graveline’s manager and told him or her that this investigation had not been looked at properly. She offered that if it had been looked at properly, “We wouldn’t be here right now.”

[300] LL recalled that she spent an hour talking to Constable Graveline at the station. She recalled that he asked her if NL drank to excess. She stated that she did not know what that question was all about. She stated that Constable Graveline asked her about drug use. She told him that NL did not do drugs. She offered that she did not know whether KL used drugs or not.

[301] LL admitted that she and NL have talked about his feelings and needing help. She denied that they talked about what happened on the evening in question. She stated that she has told defence counsel what she knows. She confessed to trying to jog her memory with her phone. She stated that she has not gone back and checked her calendar.

[302] When Crown counsel pressed on why LL needed to look at her phone, she stated that she needed to calm herself down more than anything.

Re-Examination of LL

[303] LL stated that she last saw NL drink wine at Easter.

Submissions for the Defence

[304] Defence counsel argued that the Court should disregard certain “notions” that NL had concerning Constable Graveline other than to note that KL expressed some concern about the connexion with Constable Graveline as well.

[305] Defence counsel also stated that NL’s text messages were vile, crude and demeaning. That should not, however, translate to a finding of guilt. As defence counsel aptly put it, “Being a crude lout is not a criminal offence.”

[306] He argued that it was clear that KL did not want NL returning to the Beachburg residence. Her first option to keep him from returning was to tell him not to come. This she tried to do but it disregards the fact NL had the right to be at the home because it was a matrimonial home. Her second option was a family court action, but that could not take place immediately. Her third option was to have him charged with an offence.

[307] Defence counsel argued that KL chose the third option.

[308] Defence counsel added that once KL made her statement to the police, she tried to revoke it from the moment she made it. She also had at least two meetings with the Crown where she indicated that she did not want charges laid.

[309] The evidence is clear that KL did not know what constituted a sexual assault until at least a month or two after she gave her statement to the police. Only after discussions with the Crown or VWAP did KL understand that what she told Constable Graveline formed the basis for allegations of sexual assault.

[310] Even then, submitted defence counsel, KL stated in a lengthy and detailed family court affidavit in December 2021 that she did not understand why NL was charged with sexual assault.

[311] Furthermore, KL’s conversation with LL on the night in question does not support the complaint of a sexual assault. She wanted LL to come and pick him up so that he would not be present in the house.

[312] With respect to NL’s evidence, defence counsel argued that LL’s evidence supports NL’s belief that the children would be present when he got to the Beachburg residence on the day in question. He also stated that the passage of time makes it plausible that children knocked over the training potty and put the apple sauce on the wall in the basement during a visit when KL was unable, by virtue of being confined to the upstairs of the residence, to supervise them.

[313] Defence counsel argued NL’s version of events was coherent and logical and made sense. He was steadfast in his denials. On the other hand, there were several discrepancies in the evidence of KL.

Submissions for the Crown

[314] Crown counsel stated that KL was not a vengeful former spouse who was out to get NL. She minimized the sexual assault. That does not mean that what she said happened did not happen. Crown counsel argued that KL was distraught and upset about NL’s behaviour. This, she submitted, makes her evidence credible and reliable.

[315] Crown counsel argued that KL avoided opportunity to present NL in a negative light. In contrast, NL believes that KL was trying to “frame him”.

[316] The photos, texts and recordings all corroborate KL’s version of events. In this regard, the Crown submitted that pursuant to J.J.R.D., I can reject the accused’s version of events on the basis of a considered and reasoned acceptance of all the evidence.

[317] Additionally, the Crown argued that KL was unshaken in cross-examination and there were no material inconsistencies.

Analysis

[318] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

[319] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed triers of fact to assess evidence in this way:

a) First, if you believe the evidence of the accused, obviously you must acquit. b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. c) 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.

[320] In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe: R. v. Esquivel-Benitez, 2020 ONCA 160. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected: R. v. J.J.R.D. at paras. 46-48, leave to appeal to SCC refused.

[321] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence: R. v. Morrissey, [1995] OJ 639 (Ont. C.A.) at paragraph 33. R. v. HC [2009] OJ 1979 (Ont. C.A) at paragraph 26. The credibility and reliability of a witness must be “tested in light of all the other evidence presented.”: R. v. J.J.R.D., supra, at paragraph 46.

[322] In assessing each witness’s account of what happened, I have considered the account’s internal consistency, its consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.

[323] To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, the mental capability and limitations and their level of sophistication.

[324] Some inconsistencies are important; other less so. 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 which is a cause for concern: R. v. Stewart, [1994] OJ 811 (Ont. C.A.) at paragraph 27.

[325] In order to find NL guilty of sexual assault, I must be satisfied beyond a reasonable doubt that:

a) NL intentionally applied force to KL. b) KL did not consent to the force that NL applied. c) NL knew that KL did not consent to the force that he applied. d) The force that NL applied took place in circumstances of a sexual nature.

[326] In order to find NL guilty of mischief, I must be satisfied beyond a reasonable doubt that NL obstructed, interfered with, or interrupted KL’s use and enjoyment or operation of property.

[327] It was not seriously argued that the act of urinating, spilling beer and apple sauce in a matrimonial home constitutes mischief to the other party’s use and enjoyment of that home.

[328] With respect to the first branch of the W.(D.) analysis, I do not believe NL. His evidence was shrouded in a conspiracy theory that did not exist. He earnestly believes that KL, in concert with Constable Graveline, fabricated her complaint, when it is patently obvious that this is not the case. He believes that because KL has an undergraduate degree in psychology she knows how to “play the system” to her own benefit.

[329] The exposure of his lie with respect to the disappearance of the wedding rings is most telling. He took the rings. He lied to Constable Graveline when he was confronted about taking the rings.

[330] He also lied to Constable Graveline when he told the officer that there had not been an argument with KL on the date in question.

[331] When confronted with these lies, he tried to minimize them by stating that he did not trust Constable Graveline and that he was mentally and physically exhausted from working in the heat while haying.

[332] He accused KL of staging the spilling of the urine on the floor and the smearing of the apple sauce in an effort to set him up. He testified that none of that damage was there when he left the residence. When he gave his statement to Constable Graveline, however, NL stated that all of that was there. In the text messages, however, he admonished KL to clean up the “piss”.

[333] When these inconsistencies were brought to his attention, he minimized them and again stated that he was exhausted from working in the heat. He also stated that he was upset because Constable Graveline was not properly investigating. He was shocked and confused.

[334] He insisted that he was going to the house to see his children and swim with them in a backyard blow-up pool at 9:00 at night after he had worked haying all day. He could not point to any specific time when he was at the Beachburg residence when the children were present between August 3 and 7. The text messages, which he admits to sending, make it clear that he was intent on confronting KL about the issues in their marriage and he wanted to have sex with her. There is only one text message where he asks if the children are there.

[335] In short, there is absolutely nothing about NL’s evidence that I believe.

[336] Nor do I believe much of what LL told me. Although she attempted to be more balanced in her assessment of the problems in the marriage of KL and NL, she blindly took her son’s side in endorsing his conspiracy theory involving Constable Graveline. She found it necessary to tell me that she was an advocate for mental health at work and she also supported “Mothers Against Drunk Driving” which I took as an attempt to present herself in the best possible light. She accused KL of wanting to end her relationship with her grandchildren when there was no evidence of this. She also accused KL of threatening her for drugs when there is absolutely no evidence of that.

[337] There is one part of what LL told me that I do believe but it does not assist NL. She told me that it sounded to her that KL was “living” what she was telling her. She also stated that it sounded like KL was describing an orgy. This evidence supports KL’s evidence about her conversations with NL while he was downstairs in the matrimonial home on August 7.

[338] With respect to the second branch of W.(D.), I find that there is nothing about NL’s evidence that might reasonably be true.

[339] Having found NL’s account of what took place so incredible, it is also impossible for me to find that, notwithstanding the fact that that I do not believe him, the long path of lies and inconsistencies in his evidence might somehow still have a reasonable glimmer of truth. It is completely incongruous with my findings from his evidence.

[340] Finally, I also reject the evidence of NL based on my considered and reasoned acceptance of the evidence of KL, which I discuss in greater detail below. As Justice Doherty wrote in R. v. J.J.R.D. at paragraph 53:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[341] In this case, there is conflicting evidence which I accept. That includes the evidence of KL and DT, the text messaging, the recording and the part of LL’s evidence that I do accept which I highlighted above.

[342] With respect to the third branch of W.(D.), I agree with the Crown that KL’s evidence was credible, reliable and compelling. She purposely resisted any attempt to cast NL in a bad light even though the evidence is clear that he treated her abominably.

[343] She did not wish charges to be laid. She advocated with the police and the Crown to not have charges laid. It was her view that this was a private matter and that NL was mentally unwell. She did not want her family to get caught up in the machinery of the justice system that she unwittingly set in motion when she told Constable Graveline what happened.

[344] Like many who are experiencing intimate partner violence, she called the police because she wanted the violence to end and she wanted some distance between herself and the accused.

[345] That did not mean that she wanted charges laid.

[346] She wanted the police to do something to separate her from NL so that he could not come and torment her again, which is something he promised he would do in the text messaging. She just wanted the police to talk to him and tell him not to go back to the residence.

[347] In this regard, the taking of the wedding rings is important evidence. I find that NL purposely took the wedding rings and then lied to KL about throwing them out on the roadside in order to make good on his threat that he intended to return and that if she did not have sex with him, he would make her life hell.

[348] I find that KL did not initially understand that her call to the police and disclosure of the couch incident and the urine and apple sauce would set in motion a piece of machinery that she could do little to stop. Unlike many in this situation, although she tried to persuade the Crown not to proceed and was clear in her evidence that she did not support the charges, she did not recant.

[349] I am not at all surprised that KL thought that she could call the police for support and help. I am not at all surprised that she was surprised when they proceeded to lay charges. Unfortunately, many people in our society believe that the police are there to provide counselling and support and “talk some sense” into folks without laying charges. Unfortunately, many people in our society also assume that if they do not want charges to proceed, their wishes will be honoured.

[350] In my view, KL told the truth.

[351] I am not in the least surprised that KL did not believe that NL committed sexual assault when he put his penis in her face and when he grabbed her breasts and buttocks in order to commence sexual relations. I am not surprised that she held firm to this belief as late as December 2021 when she swore the affidavit in family court.

[352] Like many people in our society, despite her education, KL has an uninformed view of Canadian law with respect to the meaning of sexual assault. She admitted as much when she stated that she watches a lot of American detective fiction on television.

[353] In my view, her ignorance with respect to basic understanding of what constitutes sexual assault also reflects how pervasive myth and stereotype about sexual assault is in Canada today. Like many, KL did not understand that sexual assault is touching for a sexual purpose without communicated consent. She did not understand that the threat of such touching, which is evident from NL’s decision to put his penis in her face is also assaultive behaviour. Like many, she does not understand that not only does “no” mean “no” but only “yes” means “yes”.

[354] KL’s ignorance does not make NL’s behaviour any less reprehensible.

[355] If anything, her ignorance makes her credibility and reliability in relation to what happened in her home on August 7, 2021 even more compelling. It demonstrates how profoundly absurd NL’s belief that KL complained to the police and staged the damage in the house to “set him up” is. It demonstrates how patently absurd NL’s belief that KL conspired to set him up with Constable Graveline is.

[356] I find that NL sexually assaulted her by shoving his penis in her face and grabbing her breasts and buttocks in an attempt to commence sex. He did so without her consent.

[357] I find that NL purposely peed on the floor, flung apple sauce on household effects and spilled beer in order to interfere with KL’s use and enjoyment of the matrimonial home and for the vile intention of tormenting KL because she told him that she did not wish to remain in the marriage and because she did not wish to have sex with him that night.

[358] There will be a finding of guilt on both counts.

Released: January 19, 2024 Signed: Justice J.R. Richardson

[1] It seems obvious that this is a typo and the word is intended to be “hell”.