Court File and Parties

Court File No.: 8368/21 Date: 2022-04-11 Ontario Superior Court of Justice

B E T W E E N:

HER MAJESTY THE QUEEN Marie-Eve Talbot, Counsel for the Crown

- and -

D. A. Kenneth G. Walker, Counsel for the Accused

Heard: December 6 and 7, 2021

Varpio J.

Reasons for Judgment

Overview

[1] During 2018 and 2019, the accused and the complainant had a romantic relationship. The accused is presently 60 years old, and he resided in Bruce Mines, Ontario during the relevant times. The complainant is currently 20 years of age and lived across the road from the accused. Given the foregoing, during the calendar year 2018, the complainant was 16/17 years of age while the accused was 56/57 years old. [1]

[2] The complainant alleges that, during the course of otherwise consensual conduct, the accused engaged in unwanted sexual activity including choking and other sexual acts. The complainant also alleges that the accused committed sexual assault at other times during the relationship.

[3] Shortly after the couple broke up, the complainant went to the police. In May of 2019, the accused was arrested and the matter came before me for trial in December 2021. The accused testified in his defence and effectively indicated that he did not engage in any non-consensual sexual conduct and, as a result, he is not guilty of the offence before the court.

[4] After consideration of all the evidence before me, I accept the complainant’s evidence and I entirely reject the evidence of the accused.

[5] Therefore, the accused is guilty of sexual assault.

Facts

Complainant’s Testimony

[6] The complainant was the only witness called by the Crown. She testified in a “rapid fire” fashion. Her testimony jumped between issues and concepts and was difficult to follow. She gave viva voce evidence and her videotape to police was admitted into evidence pursuant to s. 715 of the Criminal Code of Canada.

The Complainant’s Initial Testimony in-Chief

[7] The complainant testified that she has known the accused since she was six years old, when she and her family moved across the street from the accused in Bruce Mines, Ontario. The residences in question are separated by approximately thirty to fifty feet.

[8] The accused was like an uncle to her. The accused would visit her house approximately twice a month while she was growing up. The relationship evolved over time. The pair began speaking under the streetlamp in between their respective houses. These discussions began to occur in or around 2017. At this time, the complainant was depressed and was being bullied at school. She had been released from the CAAP Unit for a failed suicide attempt prior to the relationship becoming romantic. The complainant testified that she suffered from, and continues to have symptomology associated with, PTSD, depression and anxiety.

[9] When asked about the accused’s conduct during 2018, the complainant stated that he was physically, mentally and emotionally abusive towards her. The accused would tell the complainant that no one liked her, that her counsellor did not care about her wellbeing, and that her counsellors were simply being paid to do a job. The complainant testified that the accused told her that she was useless and he would control her mind as a result.

[10] The accused told the complainant that she attended school to “talk to guys”, as opposed to attending for the purposes of seeking an education. The accused also accused the complainant of cheating on him with others. If the complainant’s parents were away, she felt trapped inside her house. She felt stuck because, if she exited the house, she felt as though the accused would accuse her of wrongdoing.

[11] The relationship further evolved in 2018. The complainant lived with her father, mother and her sister. Her brother had recently moved out. The accused was living by himself. The complainant began to see and/or speak with the accused every day. The complainant testified that the accused could see the upper portion of the complainant’s parents’ house from his residence. When the complainant went downstairs, she would have to call the accused to let him know what she was doing. If she failed to call the accused, the accused would accuse her of wrongdoing. Sometimes, the accused would call her at three in the morning to find out what she was doing and, if the complainant did not answer, the accused would leave harsh voicemails.

[12] The complainant communicated with the accused via cellphone but her parents found out about the communication so she got an app that enabled her to text or speak via Wi-Fi.

[13] The pair saw each other in person at least five times a month. They would visit each other in the bushes where no one could see them. Sometimes the complainant would be on the road and the accused would be hiding behind a tree.

[14] The complainant advised no one that the relationship became romantic because she did not know what to tell anyone. Nonetheless, “people” knew about the change in the relationship and she had to lie about that fact.

[15] The accused threatened the complainant in December 2018 whereby he stated that, if the complainant told anyone about their relationship, the accused would hurt the complainant and her family.

The Complainant’s Video Statement

[16] On May 21, 2019, the complainant attended the OPP station in Thessalon where she gave a video statement. The video was delivered in a “stream of consciousness” and jumped between times and subject areas. The complainant’s video was admitted into evidence pursuant to s. 715.1 of the Criminal Code of Canada.

[17] The complainant testified that the accused would “hang out” with her father and that she developed emotions for the accused. The accused manipulated her and made her feel like she was going to have everything because he was always nice to her. This was especially important because she had just been released from the CAPP Unit.

[18] In early January 2018, the complainant went to the accused’s house for his birthday. The complainant initially said she went over to the house in January of 2020 but then indicated that it was 2018. She testified that “I have a very bad memory…” The complainant was 16 years old at the time. It was around 12:30 a.m. and the complainant’s parents were sleeping. She sneaked over to the accused’s house.

[19] In May or June of that year, the complainant testified that she was speaking with another male friend on this road. This male friend wanted a relationship and the complainant did not want one. The accused was somehow present during this conversation and the accused told the complainant to give the male friend “the fucking finger or you can fuck off”. The accused “looked at me drunk”. The complainant did not make this gesture to the male friend, she shook her head and she went home crying. The evidence regarding this conversation was not clear.

[20] The complainant then described an incident whereby the complainant was in the accused’s house. She was sitting on a chair with the accused and they were talking. He asked her to go to the bedroom, and she agreed. She testified that she was laying in bed when she indicated that “it hurts because I let my virginity be taken by someone who I don’t trust now”. From this statement, I infer that the complainant was testifying that the incident in question occurred after the commencement of the intimate relationship between the two. I also infer that “it hurts” means that recounting the incident caused her emotional pain. The complainant continued describing this incident by stating that the accused covered her mouth and pinned her leg down. The accused had both the complainant’s arms up above her head, and he smacked her across the face. The accused was “6/10” drunk and the complainant told the accused that what he did was “horrible”. The complainant did not specify any specific sexual act that occurred in this part of the video but the officer suggested to the complainant that the accused “forced” himself on her. The complainant did not correct the officer.

[21] As a result of the incident, the complainant went into a depression and began to fail at school. She felt trapped and the accused said nothing to her about the incident. She did not leave her house but she was too afraid to leave the accused.

[22] The accused told the complainant that she did not need her Grade 12 education and that she should get a designation to become a PSW so that she could take care of the accused.

[23] The complainant continued her stream of consciousness recitation of the accused’s actions whereby the accused allegedly cheated on the complainant. She also recited a number of other events involving the complainant’s friends as well as other emotional turmoil. The officer interrupted the complainant and told the complainant that the officer understood that the complainant and the accused were in a relationship and that the complainant had to lie about same.

[24] The officer then asked the complainant if there was only one non-consensual incident that occurred as between the two and the complainant replied: “There’s one time that I remember”.

[25] Next, the complainant indicated that there was an incident where the accused attempted to “go through the back door”. The complainant told the accused to stop, and he stopped. The complainant did not specify the meaning of “going through the back door”.

[26] The complainant then indicated that she had found underwear in the accused’s house that did not belong to her.

[27] The officer re-directed the complainant to the episode in the accused’s bedroom. The complainant testified that the incident occurred in the summer. She remembered that it was dark outside. She recalled going into the bedroom willingly, and that she was wearing baggy sweatpants, a tank top, a bra and underwear. The accused stated that it was getting hot in the bedroom. The bedroom was small and the complainant removed her clothes. She testified that she had some level of remorse for having removed her clothes. She was in her bra and underwear. The accused got on top of the complainant and began kissing her. The accused was wearing jeans with the fly undone. They began kissing. The complainant then told the accused to stop, that she did not want to be touched at that point. She consented to kissing, but not touching.

[28] The accused was intoxicated, and he grabbed the complainant’s leg. He got off the bed and took his pants off. He grabbed the complainant by the ankle and pulled her towards him. She believes that her ankle is still hurt from the episode. Their bodies were pressed together when he began moving up the bed. Her legs were being pushed up which caused her to feel hurt. He got his leg on top of her other leg and he pinned her leg down.

[29] He pinned her hands down and began kissing her while she was telling the accused to stop. He covered her mouth with his hand and he choked her.

[30] The accused ripped the complainant’s underwear off. The accused then inserted the tip of his penis into the complainant’s vagina at which point the complainant told the accused to get away from her. She began fighting and moving around. She kicked him off her. He did not ejaculate.

[31] The complainant then described the verbal abuse she suffered at the hands of the accused. He called her family negative names and the complainant testified that she would not allow the accused to impact her relationships with friends and family.

[32] The complainant’s testimony then jumped to an episode when the complainant stated that she saw her cat either enter or exit a silver vehicle. This was clearly a different episode although the timing of this episode was not clear at this point in the video.

[33] The officer redirected the complainant back to the discussion of sexual intercourse. The officer asked about episodes of strangulation. The evidence in this regard was difficult to follow. The complainant indicated that the accused had told her that he had a book that indicated that the complainant would achieve orgasm faster as a result of choking. He convinced her to engage in that act, even though she initially indicated that she did not want to. At that point, the following exchange took place:

OFFICER: But, he never touched you anywhere else that you – that you didn’t consent to where you told him to stop and he didn’t stop? Did that ever happen? Or... COMPLAINANT: Oh, he tried to go through the back door one night. OFFICER: Okay. and did he stop when you told him to stop or ... COMPLAINANT: No, I kicked him off of me. OFFICER: Okay. COMPLAINANT: Then he stopped. OFFICER: Okay. So, when everything was consensual until that point where he tried to do that and then you kicked him off and everything was good from then on? COMPLAINANT: Yeah. OFFICER: Okay. And when – when did that happen? COMPLAINANT: Again, when he was drunk.

[34] In the video, the complainant testified that she had told her mother everything about the relationship and that her mother had indicated that the complainant could continue to date the accused but that the complainant would have to leave the house. The complainant ended the relationship shortly thereafter. This exchange occurred a few days prior to the complainant attending at the police station.

[35] The complainant indicated that she was receiving a phone call from the doctor because she had to get tested as the accused had indicated that he had hepatitis or HIV.

[36] The officer began explaining the process of charging the accused and the complainant indicated that she just wanted the accused to leave her, her family and her animals alone.

[37] The complainant indicated that “this” has brought her closer with her parents.

Complainant’s Evidence In Chief, Post-Viewing of Her Video

[38] The complainant was asked by the Crown about the incident of “anal rape” described in the video. [2] The complainant indicated that the incident occurred in his bedroom. She stated that:

It started off consensual until he pulled out and then tried to go in my butt and I kicked him off.

[39] The incident occurred at night and the accused and the complainant were alone. He had been drinking. The complainant indicated that the accused was an alcoholic. He drank a beer in front of her, but she consumed no drugs or alcohol. No one else was present in the house. She estimated that the accused was a four or a five out of ten in terms of intoxication. The complainant testified that the pair were engaging in consensual, vaginal sex in the “doggie style” position. The accused pulled his penis out and attempted to put it in the complainant’s anus. She kicked him off, left his house, went to her home and she cried. The penetration lasted about 30 seconds but it felt longer.

[40] During the act, she said to herself, “What the heck…” She did not consent to being anally penetrated. During the act, she kept thinking, “What’s going on? What is going to happen? Am I going to be okay after this?” She was in shock at the time of the incident and felt betrayed and hurt. The complainant testified that the incident hurt briefly but that she did not suffer any injuries.

[41] The complainant testified that she did not tell anyone about the incident because she felt that the incident should be a secret. She did not want to say anything to anyone so as to hurt them like the incident had hurt her. She did not want her mother or father to hear about the incident. She was afraid.

[42] The Crown then asked the complainant to revisit what the Crown described as the “vaginal rape from July 2018”. The complainant testified that on a scale of ten in terms of intoxication, the accused was a six during the incident. The incident occurred in his bedroom, when it was dark outside.

[43] With respect to the choking allegations, the complainant indicated that the accused would “just wrap his hands around my throat and it’s like I couldn’t say anything, I couldn’t say no. Like, it was not consensual, but I couldn’t say no half the time because I couldn’t even breathe”. The complainant testified that 4-5 episodes of non-consensual choking occurred. The pair would be having consensual sex and the accused would choke her.

[44] The Crown redirected the complainant to the specific episode wherein she described the accused as pinning her down while her arms were up above her head. When her arms were free, he “went to the throat” and the complainant tried to push him off. The choking was excruciating and terrifying. She was able to breath for maybe ten seconds and “that was when he was done”. He was hesitant because he squeezed, then let go, then squeezed again. The incident felt like an eternity but probably lasted ten or fifteen minutes. She did not consent to sexual intercourse that night. The complainant indicated that there were other such occasions.

[45] During the event, she simply wanted the sexual conduct to end. She wondered if it would ever stop, that it was a “living hell”. She felt sick to her stomach and on the verge of tears at the time. Her vaginal area was very sore afterwards as was her throat. The throat was sore for at least 24 hours. Two choking episodes occurred after the “vaginal rape” allegation.

[46] The complainant did not report this incident because she did not know what to say, or who to tell.

[47] The Crown then took the complainant to the choking incidents. The complainant indicated that there were four or five choking incidents during 2018. The complainant testified that she never consented to being choked. He would squeeze her throat and then she would tell the accused to get off of her. During some of these episodes, the complainant thought she would die.

[48] The complainant testified that she told the accused that she did not consent to being choked during the incident of vaginal sexual assault and that two further incidents of choking occurred after this incident. The accused did not ask the complainant if she wished to be choked, and she felt very afraid during those episodes. Her throat would be sore afterwards.

[49] The Crown asked the complainant if she had reported any other incidents of sexual assault after she gave the video statement. The complainant testified that, after she gave her video statement, she had time to sit down and write out her statement which gave her time to think and summons the courage to write down what she remembered.

[50] The complainant testified about an episode whereby the pair were in the shower of the accused’s house. He had been drinking and she estimated his intoxication level as a three out of ten at that time. She was in the shower alone when the accused asked to come in. She was sitting in the shower as the accused entered. She was rinsing her hair after shampooing. She turned to grab the conditioner and he threw her forward and she hit the tap. It was a hard hit. It left a lump. He put his penis in her anus very hard. She looked down and saw a lot of blood. She was trying to stand up but did not want to fall. She got out of the shower after he was done. She ran home and she cried. The complainant believes the entire incident lasted five to ten minutes. The complainant said nothing during the incident because she was in shock. She did not consent to the anal penetration. During the incident, the complainant wanted to be dead so that she could be free. The transaction was exhausting as well as physically, emotionally and mentally painful.

[51] The complainant sought medical attention and the doctor told the complainant that she had a tear in her inner intestine. [3] As of the date of her testimony, the complainant still has pain in the area. The complainant saw the doctor after she gave her video statement, when she was being tested for HIV and such.

[52] The complainant also testified that she recalled an incident of oral sexual assault from December 2018. They pair were located on the accused’s couch in his residence. The complainant rated the accused’s intoxication as a five out of ten. The accused asked for a “blow job” and the complainant said no. The accused then asked if she would kiss “it”, the complainant rolled her eyes and said, “Fine”. She was sitting on the couch beside the accused and then she went to her knees to kiss his penis. He grabbed the back of her head and slammed her mouth down on his penis. She bit down. She felt badly about biting, but it was an instinctive reaction. The accused slapped her across the face. The entire incident lasted thirty seconds to one minute. The complainant did not consent to this conduct, and the accused smirked. The complainant did not return to his house after the incident unless it was necessary to do so in order to pick up her belongings, or for other such reasons. During the incident, the complainant was wondering what was going on, and she decided that she was “done”. She was slammed so hard into his penis that she still gets phantom pains in her throat.

[53] The Crown then suggested to the complainant that, in her video, the complainant told the police that the accused threatened to kill the complainant’s cat. The complainant testified that in or around September, the accused was drinking and he stated that he was going to kill the complainant’s animals, and her family, by breaking into her house and going into her room.

[54] The accused threatened the complainant at different times after the September incident. These threats took place on the phone in the context of the accused taking away the things that the complainant loved. The accused stated that she devoted too much attention to things other than the accused.

[55] The complainant testified that the accused would watch her through her window, and that he ultimately made the complainant paint the window black so that strangers could not watch her change clothes. The accused also watched the complainant “like a hawk” as the complainant went for walks or was outside of the residence. The accused would “pop up” as the complainant was walking outside. This watching behaviour occurred almost every day.

[56] The complainant testified that the accused was an alcoholic and that he was sober three days per week at most.

[57] During 2018, the complainant testified that her mental health suffered because she was depressed and was being bullied at school. She attempted suicide and, afterwards, her mental health began to improve. She told her mother and her brother about her relationship with the accused around this time.

[58] The complainant testified that, during her video statement, she was not sure what to do. She indicated that she felt scatterbrained at the time she gave the statement and that she also felt scatterbrained while giving her testimony.

Cross-Examination

[59] In cross-examination, the complainant testified that she did not know that her mother called the police in regards to the accused’s alleged treatment of her cats on May 21st, 2019. The complainant saw her cat run out of the accused’s house and get into a silver van. She was watching from a downstairs window in her residence. The complainant denied speaking with the accused at all on that date.

[60] The complainant agreed that the accused worked for her father cutting firewood and the like.

[61] The complainant testified that, during the relevant times, her parents’ friend roomed with their family.

[62] The complainant testified that the relationship started because the accused took interest in the complainant. She denied being in love with the accused but agreed that she was obsessed with him. He made it seem to be a privilege to be with him.

[63] The accused’s counsel asked the complainant if she took medication for depression in 2015, and she agreed that she did and that she stopped taking it because it was “red flagged” as a possible contributor to her suicide attempt. She denied that the medication or lack thereof contributed to any poor memory on her part although she stated that “[m]y bad memory is just because I have PTSD and all I can really remember is what he did to me those nights”.

[64] The complainant confirmed that the accused advised her that he suffered from multiple personality disorder, manic depression and schizophrenia. The complainant testified that the accused told the complainant that he was on welfare, as opposed to ODSP, for cognitive impairment. With respect to the accused’s mental ability, the complainant testified as follows:

Q. Well, you understand he’s a little slow. You would agree with that? A. I’ll agree that he’s – he’s not stupid, but he does have his moments. He is very cunning. Q. So, is the answer is you’re disagreeing with that? A. He’s not special. He might have moments where he acts like he’s stupid, but he’s not stupid.

[65] The complainant denied that she used narcotics but instead indicated that the accused had cocaine in his house and that he offered her same. She turned him down. The complainant was asked if the accused told her to stop doing magic mushrooms and she testified that it was in fact the accused who took magic mushrooms, and not her.

[66] The complainant denied that she watched the accused, followed him or took drugs.

[67] The complainant testified that the accused tried to end the relationship at one point but then took back his anger. The accused and the complainant continued to communicate after this juncture.

[68] The complainant agreed that she was angry with the accused because the relationship had cost her friendships, she was not doing well at school, her relationship with her family had suffered as a result and she believed that the accused was manipulating her. The accused also called the complainant names.

[69] The complainant agreed that she believed that the accused was sleeping with another young person. Further, she agreed that the accused had stated that he could “go to the Sault at any point in time and ...pick up a 16 or 17-year-old and no one would bat an eye at it”. She testified that she hates the accused because he held this attitude regarding their age difference.

[70] The complainant agreed that her second statement was quite a bit different from her first statement. In her second statement, the complainant stated that she wanted the accused in jail. This second statement appeared to be contained within a victim impact statement that she prepared. The complainant included the incident of oral sexual assault as well as the sexual assault allegation in the shower because she wanted write down her whole story.

[71] The complainant testified that, after charges were laid, she returned a ring to the accused’s residence. The accused had previously given her the ring.

[72] The complainant agreed that she weighted about 210 pounds at the time of the relationship. She testified that the accused was “freakishly strong”. She believes that the accused weighed approximately 150 pounds when they were together. She also testified that, by the time the relationship was over, she weighed 160 pounds.

[73] With respect to the incident of oral sexual assault, the complainant testified that she left marks on the accused. She did not hear the accused say anything, she only remembered being slapped across her face.

[74] The complainant testified that she was given a choice by her mother to end the relationship or to leave the house. The complainant denied that she made up the allegations of sexual assault so as to remain in the house.

[75] The complainant agreed that she kept the truth about her relationship with the accused from her family for over a year.

[76] The complainant denied lying to the court.

Re-Examination

[77] In re-examination, the complainant specified that the accused attempted to end the relationship in November or December of 2018.

The Accused’s Testimony

[78] The accused was the only witness to testify on his behalf. Prior to testifying, as is the normal case, he was asked to spell his name. He had difficulty spelling his name.

Examination In-Chief

[79] The accused testified that he is 59 years old and that he supports himself via ODSP and a pension. Prior to charges being laid, he lived across the street from the complainant and had lived at that address for a period of 19 years. The complainant lived across the street from the accused for 13 of those years. The accused began working for the complainant’s father by cutting firewood, working construction and the like.

[80] Through the years, the accused and the complainant talked with one another. On the accused’s birthday in early January 2018, the accused had friends over and the complainant brought the accused a birthday gift. He asked her to leave the residence. The complainant returned to the accused’s residence after everyone had left and they got to know each other. For the rest of 2018, they had a relationship. She would come over to his house mostly when her parents had gone to sleep, or on holidays. They spoke on the phone. She mostly called him. The complainant would come over to the accused’s house 3 or 4 times in a given week. She would come over late at night.

[81] In May 2019, the couple broke up. He did not like what the complainant was doing. She was talking about going to a party to do cocaine. She did mushrooms. The accused did not see the complainant doing drugs but he suspected that she used same. The accused had had previous girlfriends die as a result of drugs and he did not want another one of his girlfriends to die that way. The accused told the complainant about his concerns and his history.

[82] On May 16 or 17, 2019, he ended the relationship.

[83] A few days after the breakup, the accused had dinner with friends. A cat was at a friend’s residence. The cat did not belong to the accused or the accused’s friends. The accused took the cat and returned it to his residence. The complainant called the accused and asked what the accused’s friend was doing in his house. The accused said that it was none of her business and the complainant indicated that she would make the accused disappear. The cat stayed in the house overnight and he called the humane society. The next day, the complainant’s mother was on her front step yelling at the accused regarding the cat. The accused was arrested shortly thereafter. The accused could not specify the date of the cat incident, but testified that he did not threaten the complainant’s cat or the complainant’s mother’s cat.

[84] The accused then specified that the breakup date was May 17, 2019. He was certain of that date.

[85] He also testified that he did not sexually assault the complainant, did not threaten her and did not assault her in any way. He denied choking the complainant. He denied having anal intercourse with the complainant. He denied having non-consensual sexual relations of any sort.

[86] He remembered being arrested and being weighed at the police station. He weighed 109 pounds at that time.

[87] With respect to alcohol, the accused testified that he is not an alcoholic, and that he did not drink every day. He testified that he drank on Fridays, Saturdays and maybe Wednesdays. He had four or five drinks at a time. He would get “sort of drunk”, but that he never got drunk to the point where he did not know what he was doing. When the complainant was not with the accused, he was not drunk.

[88] The accused testified that the complainant was controlling and jealous. The accused was not jealous. The complainant would watch the accused as he came home and would call him as soon as he arrived.

Cross-Examination

[89] The accused testified that he has 35 children, and that he stopped having children at 30 years of age. He was in a committed relationship for 20 years and stopped having children as a result.

[90] The accused got to know the complainant when the accused started “hanging around” with the complainant’s father. He would see her in front of his house everyday, walking back and forth. Prior to their relationship, “they” used to refer to the complainant as the accused’s stalker. The accused spoke with the complainant’s parents about the stalking and the parents got upset. The accused did not go to the police in regards to same.

[91] The accused’s son was living with him during the course of the accused’s relationship with the complainant.

[92] At the beginning of the relationship, there was emotional bonding. The accused tried to support the complainant. She told the accused that she was 17, not 16 years old. The complainant’s age made a difference to the accused and the complainant did a lot of checking to see if the couple could be sexually active without breaking the law. She looked into this issue, not the accused.

[93] The accused disagreed that the complainant was in a volatile state during the relationship. She was young. They were waiting for the complainant to turn 18 so that they could get married.

[94] The accused did not know that the complainant was mentally ill until 2018. She did not share her situation and neither did her parents. He found out that she had PTSD and was depressive. He knew about the suicide attempt. The accused testified that he did not know whether to call the complainant’s situation as being “mentally unwell”. He had two brothers that had committed suicide. After further questioning, the accused agreed that the complainant was unwell.

[95] The accused testified that the pair planned on getting married right from the start. It made no difference to him since everyone referred to the complainant as the accused’s girlfriend.

[96] He thought that the age difference between the pair could make him a target and that he wanted to keep the relationship secret until they had a marriage license.

[97] He did not care that his ex-girlfriend knew about the relationship, since the ex-girlfriend’s friends were aware of same. The accused and the complainant were going to move away when she turned 19 to go live on the other side of Timmins. The complainant wanted to live in a trailer park. She wanted the accused to give up his rental.

[98] He was not worried that an older man could be in a relationship with a young woman like her, but he was concerned about appearances.

[99] The accused did not tell the complainant’s parents about the relationship, although the accused testified that they were aware of same in March of 2018, when they had him charged. [4] The complainant’s parents were not supportive, although he did not try to hide the relationship from them.

[100] The accused testified that during the relationship, the pair would speak 3 – 4 times per day, on the phone or on an app. She would walk past his driveway and stand and stare at his house. She would be obsessive about the accused. She would call first thing in the morning to see what he was doing, and then when she got home from school.

[101] The accused clarified that he saw the complainant everyday, but that they would not speak in person everyday. The accused recommitted to his evidence in-chief that the couple spoke in person 3 or 4 times a week. The accused then admitted that he told the police that the couple only saw each other 5 times per month in person.

[102] The Crown put the specific allegations made by the complainant to the accused and the accused denied same.

[103] The accused testified that he had a book about sex that the complainant had given him. He did not read it.

[104] The accused denied threatening to kill the complainant’s cats. He denied threatening to kill her family. The accused denied that the complainant’s attention to the cats bothered him. The accused denied watching the complainant. He also denied being jealous of the complainant’s supposed cheating.

[105] The accused agreed that he asked the complainant to put a blind up in her room but denied that it was to prevent others from seeing her. He testified that this would simply look better.

[106] The accused denied being in charge in the relationship. He did not tell her what she could and could not do. He did testify that he told her that he did not like her smoking marijuana. The accused denied that he told the complainant that she could not go to parties. The accused did not like it when the complainant mentioned “coke”, however.

[107] The accused also denied telling the complainant that he did not want the complainant to go to her father’s “office”, which was where her father and other men would go and smoke and “do whatever they all did in there”. Ultimately, the accused admitted that he did not like the complainant going to her father’s “office”.

[108] The Crown played the accused’s video statement that he gave to police upon arrest. In that statement, the accused told the police that he had told the complainant that she could not attend parties. Confronted with his own statement, the accused nonetheless indicated that he did not try to isolate the complainant during the relationship. He did not care who she went out with. He did not disapprove of her friends. The accused denied telling the complainant that she could not be around her friends. He may have called her friends “stupid bitches”, but he liked her friends. He did not mean it, he just did not like the complainant “smoking all over the place”, going out every night and being with drunk drivers.

[109] The accused denied that the complainant’s mental health declined during 2018, however the accused stated that there was a time in that year where the complainant thought that her mother was trying to poison her.

[110] The accused testified that he ended the relationship because he was tired of the complainant stating that she was going to sell drugs and the like. During his police statement, the accused appeared to indicate that the complainant ended the relationship. The accused clarified that he was drunk during the video. He is allergic to whiskey and had drunk whiskey just prior to giving the video statement. The accused’s friend had passed away just prior to the accused giving his video statement and the accused and other friends drank whiskey in mourning.

[111] The accused also denied telling the complainant that he could pick up any 16-year-old on the streets. The accused testified that he told the complainant that he could go to the Sault and pick up any woman he wanted but that he did not specify the age of the woman.

[112] The accused denied burning the complainant’s belongings after the breakup and he initially did not recall finding a letter that the complainant had written to him. He subsequently remembered seeing the letter and testified that it was not the kind of letter that he would want to leave lying around.

[113] When he was arrested for the matters before the court, the accused was walking home around 1:30 a.m or 2:00 a.m. He stopped to have a beer and put his feet in the ditch. He stood up when the police came by. He denied hiding from the police in the bushes.

[114] The accused denied being an alcoholic. He stated that he was an early morning drinker and preferred to drink by himself.

[115] The accused testified about a break-and-enter that occurred after his arrest.

[116] The accused admitted that he had a small, dated record that included a conviction for drinking and driving.

Re-Examination

[117] The accused testified that he has fathered 35 children with several women. He has slept with 750 women in his lifetime.

[118] The accused indicated that he is on disability for problems that include difficulties with numbers. The accused took a long time to complete his Grade 12.

Position of the Parties

[119] The accused submits that the complainant’s evidence was not worthy of belief. He points to the following issues:

a. She did not recall significant aspects of the alleged sexual assaults until she completed her Victim Impact Statement;

b. She had a motive to fabricate the allegations because her mother effectively gave her an ultimatum to break up with the accused or risk being thrown out of the house;

c. The complainant has an animus against the accused given her loss of virginity to him and his subsequent mental health disclosure; and

d. The complainant was argumentative and rambled in her testimony which, when coupled with the points referenced above, demonstrates that the complainant is not credible because she was trying to create a version of events to suit her desired outcome.

[120] The accused submits that his own testimony must be viewed within the spectrum of someone who functions at a relatively low level of understanding. The accused had difficulty spelling his name, claimed to have slept with 750 women and fathered 35 children. Therefore, while the nuances and subtleties of the case may have been lost on the accused, his flat denial of sexual assault is not affected by his inability to understand other aspects of the evidence.

[121] I should therefore find the accused not guilty.

[122] The Crown submits that the complaint was a credible witness who was worthy of belief. Her evidence must be viewed through the lens of someone who was still a minor when the incidents took place and who comes before the court as a relatively young person. The frailties in her evidence were limited and she gave credible evidence.

[123] The accused’s evidence, as per the Crown, is inherently untrustworthy given his outlandish claims and his internally contradictory evidence. Simply put, the accused was a bad witness.

[124] Accordingly, the Crown submits that the prosecution has met its burden and proven the accused guilty of sexual assault beyond a reasonable doubt.

The Law

Credibility Analysis

[125] R. v. W.(D.), [1991] 1 S.C.R. 742 is often quoted as representing the framework by which credibility is to be determined when an accused person testifies. In W.(D.) at para. 28, the Supreme Court stated:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[126] The W.(D.) analysis was synthesized for trial judges sitting alone in R. v. Dinardo, 2008 SCC 24 at para. 23:

The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.

[127] As a corollary to this jurisprudence, the trier of fact must be certain that they do not engage in a “credibility contest” as per R. v. Hull, [2006] O.J. No. 3177 (Ont. C.A.) at para. 5:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

Late or Incremental Disclosure in Sexual Assault Cases

[128] Late or incremental disclosure in sexual assault cases will not, standing alone, constitute a reason to diminish a complainant’s credibility. At para. 65 of R. v. D.(D.) 2000 SCC 43, a majority of the Supreme Court of Canada stated:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[129] In R. v. E.B., [2021] O.J. No. 6892, the Court of Appeal of Ontario re-affirmed that trial judges need to consider the explanation given by a complainant as regards incremental disclosure. At paras 38 and 39, the court stated:

As noted earlier, the appellant asserts that the trial judge erred in his assessment of the complainant's evidence by failing to consider that she lied to the police by not disclosing the fellatio and by lying about her cocaine use in her statement to the police and at the preliminary hearing. As to the former, the trial judge identified the reasons the complainant gave for her delayed disclosure of the fellatio as opposed to the forced intercourse: she was embarrassed and felt she could have avoided it. As to the latter, the trial judge also identified the complainant's explanation that she did not initially disclose her purchase and use of cocaine because she was ashamed about it, did not want her parents to find out about it and was afraid about the criminal law consequences. The trial judge addressed this issue at length in his reasons, noting that the complainant had lied at the preliminary hearing. He accepted the complainant's evidence about why she did not disclose her drug use. While the trial judge was obviously aware of the significance of lying under oath, and might have found that the falsehoods impacted her credibility and reliability, he did not do so. Instead, he found that these falsehoods were explained persuasively by the complainant and therefore did not impact the complainant's credibility or reliability on the central issues. He was entitled to accept her evidence and her explanation.

Childhood Recollections

[130] I must consider the manner in which a Court considers the evidence of witnesses who recall events that occurred in their childhood. The Supreme Court of Canada examined this phenomenon in R. v. R.W., [1992] S.C.J. No. 56. At para. 26, McLachlin J. (as she then was) discussed the principles that apply to the testimony of children:

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[131] In R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241, the Ontario Court of appeal discussed the impact of inconsistencies and the recollection of childhood events on the weighing of evidence at paragraphs 9 to 13:

First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 134.

Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134.

Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, [1962] S.C.R. 469.

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

Analysis

[132] Prior to making any findings, I wish to consider the evidence of the witnesses.

The Accused’s Testimony

[133] The accused, through counsel, submits that I ought to consider the accused’s intellectual abilities as it relates to his inconsistent or incoherent evidence. The accused submits that the accused’s evidential frailties are not indicative of dishonesty, but are instead simple consequences of his intellectual difficulties.

[134] I accept that the accused has intellectual issues. He had difficulty spelling his name for the record. He testified that it took a great deal of time to complete high school. He also appeared to indicate that he supported himself via ODSP, for which he was eligible as a result of his impairment. As a result, it is clear to me that the accused has trouble understanding some issues, although I have no medical diagnosis about the accused’s condition or any medical opinion about how his cognitive abilities may affect either his recollection of events or his ability to recount the past. Thus, as per A.M., I must consider the accused’s evidence in light of this reality.

[135] By way of contrast, however, the accused was quite specific with regard to certain aspects of his testimony. He gave evidence that was pointed, clear and seemingly relevant to the questions asked and relevant to the issues to be considered in this trial. For example, the accused claimed that he was not an alcoholic and that he did not ever drink to the point of losing control. He claimed that he drank three times per week, having four or five drinks at a time. This was a nuanced answer that indicates that the accused understood the ramifications of being referred to as an “alcoholic”. The accused’s intellectual ability, therefore, is not such that he cannot understand the nature of concepts and the application of facts to concepts.

[136] Even allowing for the accused’s intellectual abilities, the accused’s evidence was such that I must reject his testimony in its entirety for a number of reasons. First, the accused claimed to have fathered 35 children and to have slept with 750 women, despite having been in a committed relationship for 20 years. While it is possible that he may not be able to fully understand the mathematics of this evidence, his claims seem to be based in fantasy. As noted in the preceding paragraphs, the accused understands nuance and rudimentary numbers as evidenced by his responses to the Crown’s questions regarding alcohol consumption. I simply do not understand why the accused would give such testimony and, as such, I have serious doubts about the accused’s credibility.

[137] Second, the accused was entirely inconsistent with his testimony regarding who initiated the break-up. The accused initially told police that the complainant broke up with him, as he appeared to portray himself as a victim of a relationship that ended badly. He testified before me that he was the one who broke up with the complainant as a result of the latter’s possible drug use and partying. The fact that the accused gave specifics and rationales for each story means that the differences are not attributable to simple forgetfulness. Instead, the differences appear to suggest that the accused is tailoring his evidence to the situation that surrounds him.

[138] Third, the accused was confronted with the inconsistency he gave with respect to the number of times he saw the complainant in 2018. This disparity was not insignificant, as the accused’s version of how often he saw the complainant changed from five times a month to three or four times a week. This difference is meaningful and suggests that the accused does not remember how many times he saw the complainant and that he is guessing as to what actually happened, or is tailoring his evidence to suit his purposes.

[139] Fourth, the accused denied that the complainant was in a volatile state during the relationship, even though the complainant had recently been released from the CAAP Unit as a result of a suicide attempt. Equally, the accused testified that, during the relationship, the complainant believed that her mother was trying to poison her. This is not the kind of testimony that can simply be attributed to a lack of understanding by the accused. As noted earlier, the accused’s testimony regarding his drinking shows that he understands complicated concepts like alcoholism. Rather, the accused’s denial that the complainant was vulnerable during their relationship shows that the accused ignored the obvious and tailored his evidence to present a case that put him in the best possible light.

[140] Fifth, the accused indicated in his cross-examination that he did not attempt to control the complainant by preventing her from seeing her friends or attending parties and the like. In his statement to police, however, the accused indicated that he wanted to prevent the complainant from going to parties because he did not like her being exposed to drugs and other concerns. Again, this is a direct contradiction that is not capable of being explained away by the accused’s intellectual difficulties.

[141] Sixth, the accused indicated that any inconsistencies as between his testimony and his statement to police are attributable to the fact that he had a friend pass away shortly before he gave his video statement. Consequently, he drank whiskey with other friends in mourning prior to giving his video statement. His allergy to whiskey is why his police statement is flawed. This evidence is far too convenient to be believed and again causes me to think that the accused is attempting to explain away problematic testimony.

[142] Seventh, the accused denied telling the complainant that he could “pick up” any young person in Sault Ste. Marie. Rather, he testified that he told her that he could “pick up” any woman. I do not understand why this is a distinction that the accused would remember given the fact that he obviously had no problem dating teenagers. Again, this evidence causes me to think that the accused was putting his best foot forward rather than telling the simple truth.

[143] Taken individually, some of the accused’s answers and/or inconsistent evidence may not adversely affect the accused’s credibility in a meaningful way. The totality of that evidence, however, coupled with the accused’s ability to answer nuanced questions about alcoholism, make clear to me that the accused was trying to give a version of events designed to put himself in the best possible light. The mass of inconsistent and/or incredible evidence given by the accused is such that it can only be explained as an attempt by the accused to put himself in the best light, irrespective of the truth of the matter. Accordingly, and based on the seven issues identified above, I do not find the accused to be credible in the slightest and I reject his evidence entirely.

The Complainant’s Evidence

[144] Having rejected the accused’s evidence, I am therefore left only with the complainant’s evidence to consider when determining whether the Crown has met its burden in this case.

[145] Generally speaking, the complainant’s evidence appeared credible and trustworthy, although it had certain weaknesses which will be discussed later in these reasons. First, I note that the complainant gave a clear recitation of the events involving vaginal and anal sexual assaults. She described in detail the nature of the events in question, the positioning of the parties, the context of the interactions and how the events occurred. She testified that the injuries to her ankle, her throat/neck and to her anal area were caused by the sexual assaults. [5] She was not particularly challenged by defence counsel on these issues and I can categorize her evidence as being unshaken in this regard.

[146] Her evidence also featured specific recollections that one would assume a young adult would remember. For example, the complainant testified that her reaction regarding an anal sexual assault allegation was one of “What the heck?” which, given the complainant’s testimony, is the kind of reaction one can easily imagine her having when faced with a trauma. In a similar vein, the complainant’s testimony that she wanted to be dead during another episode of sexual assault also has the ring of truth when one considers that she was a young person who, at school, had been bullied to the point of an attempted suicide.

[147] Further, the complainant did not hide or diminish embarrassing and/or weak aspects of her evidence. For example, she was forthright about the fact that she suffered from mental health and other issues that led to a suicide attempt. Her evidence in this regard suggests that she was not hiding embarrassing features of her life story or was otherwise attempting to put herself in a good light. Rather, the complainant was open about issues that other people might try to hide from public view.

[148] The complainant was also open about the fact that she had a bad memory. This admission could, depending upon the circumstances, cause a trier of fact to question whether a witness or a complainant could remember a particular fact or event. In this case, however, the nature of the allegations levelled by the complainant would not necessarily be affected by poor memory. Put another way, one can imagine that a complainant in a certain situation may not remember a date, time or other detail associated with a sexual assault. By way of contrast, however, I cannot imagine that the complainant’s admittedly poor memory caused her to believe that an anal sexual assault occurred in the shower when it in fact did not occur at all. She remembered particular places, feelings, observations, and reactions and this unchallenged specificity has a powerful ring of truth. Thus, the complainant’s admission that she has a bad memory adds to her credibility because she appears to be making an admission regarding a subject area (her memory) that the accused submits actually hurts the Crown’s case.

[149] For his part, the accused submitted that the complainant’s evidence had numerous weaknesses and that I ought to find her incredible as a result. I disagree with the accused that the complainant’s evidentiary issues affect her credibility. First, it is clear that the complainant’s evidence was difficult to follow. She often rambled and jumped from subject-area to subject-area which made understanding her evidence more difficult. As noted in A.M., however, these issues must be considered in light of the complainant’s age, level of sophistication and other relevant factors. I must consider the allegation that the complainant was being controlled and abused mentally by a man forty years her senior. I find beyond a reasonable doubt that the accused in fact engaged in such abusive and controlling behaviour. The complainant testified that the accused would demean her, call her names and threaten to hurt her animals. The complainant also testified that the accused made her paint her window black to prevent others from watching her. As noted above, the complainant’s testimony was persuasive as regards the key aspects of her evidence. Further, the accused corroborated the complainant’s testimony when he admitted that he asked the complainant to paint the windows in question, although he denied the reasoning behind the request. The accused also admitted that he used derogatory terms to describe the complainants’ friends. These admissions by the accused effectively corroborate the complainant’s version of events that the accused was abusive and controlling. Therefore, I find beyond a reasonable doubt that the accused engaged in controlling and mentally abusive conduct as towards the complainant during their relationship. This fact helps explain why the complainant focussed considerable time describing emotional and psychological abuse in her video statement and in her testimony. When she went to the police to tell her story, the complainant was effectively breaking free of the psychological constraints that the accused had placed around her.

[150] Therefore, pursuant to A.M., when I consider the complainant’s youth, her lack of worldliness, her obvious mental fragility at the relevant times, and the fact that she was recalling events that occurred in a controlling and abusive relationship with a man forty years her senior, the complainant’s explanation that she felt “scatterbrained” while giving her video statement and while testifying makes imminent sense. The complainant’s “hard to follow” presentation of the evidence therefore does not affect her credibility in that it does not impact upon her honesty as a witness.

[151] I also take these factors into account when I consider the complainant’s occasionally gruff demeanor with defence counsel. Again, her youth, lack of sophistication, mental fragility and the fact that she felt controlled by the accused combine to explain the reason why the young woman occasionally lost patience with counsel.

[152] These same factors also inform my analysis of the complainant’s incremental disclosure of the sexual assault allegations. As noted in D.D. and E.B., delayed disclosure in itself is not necessarily problematic in sexual assault cases and I am required to consider the complainant’s explanation for same. As noted above, the complainant testified that, when she was giving her initial statement to police, she was feeling “scatterbrained”. This explanation is entirely understandable given the complainant’s youth, her mental health issues and the fact that she was disclosing allegations that flowed from an abusive and controlling relationship she had had with a man forty years her senior. The accused’s controlling demeanor also helps explain the complainant’s evidence that she gave further disclosure in her second statement. She testified that, when writing this statement, she took time to gather her thoughts and her courage to write the full version of events. This evidence resonates as one can easily imagine a teenager gathering themselves to surmount the accused’s control and give a complete version of events. I therefore accept that this combination of emotions affected the complainant’s ability to recall and recount specific instances of abuse during her initial police statement and, as such, I take nothing from the complainant’s incremental disclosure of sexual abuse.

[153] The accused also submitted that the complainant’s anger at the accused negatively affects the complainant’s credibility in that she was clearly upset at the accused for having taken her virginity. This phenomenon does not affect the complainant’s credibility. The courts often see honest complainants who are angry at those who visited horrors upon them. The courts also see complainants whose anger causes them to embellish their versions of events. Anger does not, therefore, necessarily correlate to dishonesty. I have nothing in the case to suggest such a correlation as regards the complainant. Accordingly, the fact that the complainant was clearly angry and frustrated with the accused does not materially affect my view of the complainant’s credibility.

[154] With respect to the fact that the complainant’s mother told her to break up with the accused or to move out of her house, nothing in this conversation suggests that the complainant had a motivation to go to fabricate a story for the police. The same holds true for the complainant’s concern for her animals as it pertains to the “cat episode”. Again, a complainant’s anger does not necessarily correlate to dishonesty and in this circumstance, the mother’s conversation and the “cat episode” do not materially affect my view of the complainant’s credibility because there is no evidence that the complainant gained an advantage by going to the police, as opposed to simply breaking up with the accused.

[155] The discrepancy regarding who was living with the accused at the time of the relationship was also minor. Whether her parents’ friend was living at her house during the relevant times has no bearing on the case before me. Further, the detail appears to be minor and immaterial to the complainant’s credibility.

[156] All tolled, therefore, the complainant’s evidence had a powerful ring of truth and, despite the obvious scattered presentation of her evidence, nothing regarding her testimony caused me to doubt the veracity of her recollections. The incremental disclosure of her version of events is understandable given her explanation, which I accept. She did not embellish situations or hide embarrassing facts about herself. She testified with raw honesty, and she gave a relatively coherent version of events, despite said scattered presentation and incremental disclosure. Her evidence was unchallenged as regards the specific allegations and the complainant did not resile from embarrassing or detrimental parts of her evidence. She thus gave her evidence in an honest and forthright manner.

[157] I accept the complainant’s evidence beyond a reasonable doubt as that evidence pertains to the sexual assault allegations before the court.

Conclusion

[158] When I consider all of the evidence before me, I accept the complainant’s evidence beyond a reasonable doubt as it relates to the allegations of non-consensual sexual conduct. Specifically, I accept that the accused:

a. Engaged in two instances of anal sexual assault, one where the complainant “kicked the accused off of her” when he tried to have anal sex, and another when he aggressively sexually assaulted her in the shower causing her to have pain and to have blood flow with the water;

b. Engaged in one count of vaginal sexual assault;

c. Engaged in four or five episodes of non-consensual choking during otherwise consensual sexual activity; and

d. Engaged in one episode of non-consensual oral sexual assault whereby she bit the accused’s penis.

[159] The accused is therefore guilty of sexual assault.

Varpio J. Released: April 11, 2022

Footnotes

[1] The Crown conceded that no sexual activity occurred between the pair while the complainant was 16 years old.

[2] The Crown referred to the incident as “anal rape”.

[3] The Crown indicated that the diagnosis by the doctor was tendered as narrative, that is, not for the truth of its contents. No medical evidence was tendered by the Crown to evidence this diagnosis.

[4] It would appear that the accused confused his dates, in that the accused was charged in March 2019, as opposed to March 2018.

[5] I note that the evidence regarding the intestinal tear was simply tendered as narrative. I therefore do not rely upon that evidence, but I do rely upon the complainant’s evidence that her anal area continues to hurt.