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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2016-06-08

Court File No.: Peterborough 15-1094

Between:

Her Majesty the Queen

— AND —

Christopher Robertson

Before: Justice S. W. Konyer

Heard on: April 18, 19, 20, 22 and 26, 2016

Reasons for Judgment released on: June 8, 2016

Counsel:

Mr. P. Scrutton — counsel for the Crown

Mr. J. Markson & Ms. K. Robertson — counsel for the defendant Christopher Robertson

KONYER J.:

INTRODUCTION

[1] Christopher Robertson is charged with sexually assaulting J.I. in the early morning hours of Saturday, January 24, 2015. The sexual assault is alleged to have occurred in Mr. Robertson's home in Peterborough. Mr. Robertson and J.I. had shared a taxi to his home after meeting at a local bar. Inside his bedroom, J.I. alleges that she was pinned down and sexually assaulted by Mr. Robertson while she repeatedly told him to stop. Mr. Robertson, who testified in his own defence, claims that he and J.I. engaged in consensual sex, and denies her allegations.

[2] Like any person charged with a criminal offence in our system of justice, Mr. Robertson is presumed innocent. There is no onus on him to prove his innocence, and he can only be found guilty of this offence if the Crown proves his guilt beyond a reasonable doubt. In other words, the law requires that I find Mr. Robertson not guilty unless I am sure of his guilt based on the evidence.

[3] I have heard two different versions of the events that occurred on the night of January 23 and early morning hours of January 24, 2015, primarily through the testimony of J.I. and Mr. Robertson. I have also heard testimony from Mary Waters, a nurse at the Women's Health Care Centre at the Peterborough Regional Health Centre, who examined J.I. on Monday, January 26, 2015. In addition, I have seen video footage from the bar where J.I. and Mr. Robertson met. Finally, I was provided, by way of an agreed statement of facts, with the evidence of numerous witnesses who interacted with them over the course of the night in question, and who interacted with J.I. over the following days and weeks.

[4] The only issue that I need to decide in this case is whether the Crown has proven beyond reasonable doubt that Mr. Robertson touched J.I. for a sexual purpose without her consent. In order to decide this issue, I will first set out the law as it applies to this case. Next, I will summarize the evidence heard at this trial. Finally, I will apply the governing legal principles to the evidence in order to determine whether the Crown has proven a lack of consent.

THE APPLICABLE LAW

[5] A criminal trial is not a simple credibility contest. The issue I must decide is not which of the two competing versions I prefer. Rather, I must decide only whether the Crown has proven Mr. Robertson's guilt beyond a reasonable doubt. It is not enough to convict if I conclude that Mr. Robertson probably or likely committed this offence. In those circumstances the law requires that I find him not guilty, since the Crown will have failed to prove his guilt beyond reasonable doubt.

[6] At the same time, proof beyond a reasonable doubt does not require proof to an absolute certainty. That is an impossible standard. A reasonable doubt is not one that is based on sympathy or prejudice. It is not a frivolous or speculative doubt, but rather one that is derived from the evidence or lack of evidence. The requirement that the Crown prove every criminal allegation beyond reasonable doubt in a public and impartial trial is a fundamental safeguard of individual freedom. In this case, to determine whether the Crown has met this onus, I must assess the credibility and reliability of the testimony of both J.I. and Mr. Robertson.

[7] Clearly, if I believe the testimony of Mr. Robertson that all sexual contact with J.I. was consensual, I must find him not guilty. Even if I do not believe his testimony, if it leaves me with a reasonable doubt when assessed in the context of all of the evidence I heard at trial, then I must find him not guilty. Further, even if I am not left with a reasonable doubt by Mr. Robertson's testimony, I must still go on to consider whether the Crown has proven the case against him beyond reasonable doubt on the basis of the evidence that I do accept.

[8] A person commits a sexual assault by touching another person in a sexual way without their consent, while knowing that the other person was not consenting or being reckless or wilfully blind to the absence of consent: see R. v. J.A., 2011 SCC 28, at paras. 23-24. Consent is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter": J.A., supra, at para 31. A person may consent to some forms of sexual contact and not others, and a person may withdraw their consent during a sexual encounter. Where consent is withdrawn, "the accused must halt all sexual contact once the complainant no longer consents": J.A., supra, at para. 41.

[9] In Mr. Robertson's case, the issue I must decide is whether the Crown has proven that he engaged in sexual contact with J.I. without her consent. J.I. testified that Mr. Robertson violently pinned her down and forcibly engaged in vaginal intercourse while she told him to stop. Mr. Robertson testified that he and J.I. engaged in a variety of consensual sexual activities, and denies that she ever expressed that she was no longer consenting to any of the activities. As the Supreme Court of Canada has noted, "[t]he parties' testimony is usually the most important evidence in sexual assault cases": see R. v. Esau, at para. 16. That comment is certainly true in this trial.

[10] It is therefore necessary to review the testimony of both J.I. and Mr. Robertson in some detail, as well as the other evidence that is relevant to the sole issue in this case – whether the Crown has proven that J.I. did not consent to the sexual acts forming the basis of the charge against Mr. Robertson. The evidence that I will review includes evidence about the conduct of both J.I. and Mr. Robertson prior to their meeting, their actions together at the bar where they met and at Mr. Robertson's home, and the actions of each of them in the aftermath of the alleged assault.

SUMMARY OF THE EVIDENCE

[11] Both J.I. and Mr. Robertson consumed alcohol with friends over the course of the evening of Friday, January 23 and into the early morning hours of Saturday, January 24, 2015, at which point they met at a bar called The J[…] in downtown Peterborough. They spent time together at The J[…] before going to Mr. Robertson's home in the west end of Peterborough, where the sexual assault is alleged to have occurred. Afterwards, Mr. Robertson drove J.I. home. Over the course of the next several weeks J.I. disclosed details of her encounter with Mr. Robertson to a number of friends, medical professionals and law enforcement personnel. I will now summarize the relevant evidence that I heard about these events.

i) Before going to The J[…]

[12] On Friday, January 23, 2015, J.I. had plans for what she described as a "girls' night out" with several old friends. A few of them started the evening at J.I.'s home, then moved to a downtown bar which was hosting a fundraiser for an acquaintance undergoing cancer treatment. J.I. was separated at the time, and her son was spending the weekend with his father. J.I. was involved in what she described as an "on and off" relationship with M.J., who was married to someone else. Their relationship is relevant because J.I. first disclosed the allegation of sexual assault to Mr. M.J., and the defence has argued that she had a motive to fabricate this allegation after Mr. M.J. found out that she'd had a consensual one night stand with Mr. Robertson.

[13] J.I. estimated that she drank three mixed drinks at her home, amounting to about half a "mickey" of rye. Her alcohol consumption over the course of the evening is relevant because she testified that she had large unexplained gaps in her memory of that night. It is beyond dispute that alcohol can affect memory, and that alcohol is known to impair judgement, decision-making, and can disinhibit behaviour.

[14] One of the friends who was at J.I.'s home that evening was S.J.. Although she was not called as a witness, the parties have agreed that Ms. S.J. "would testify that [J.I.] was receiving text messages on her phone. Ms. S.J. would testify that [J.I.] told her that one of those text messages said something like 'your lights are on, are you home?' Ms. S.J. and Ms. R. [the other friend present] laughed about how someone was watching the house. They asked J.I. who was texting her, and she responded 'I can't say', and then 'you both know him'." It is not disputed that it was Mr. M.J. who was texting with J.I. This fact is relevant to J.I.'s alleged motive to fabricate the allegations against Mr. Robertson – that she was covering up a consensual affair from a jealous lover.

[15] J.I. and her two friends went downtown around 9:45 p.m. They went first to a pub called R[…], which is located on the ground floor of a building that also has an upstairs dance bar called The J[…]. The fundraiser was being held at The J[…], but the group of friends went first to R[…], which is quieter, to await the arrival of other friends. They stayed at R[…] until about 11:30 p.m., during which time J.I. estimated that she had another three drinks of rye.

[16] After the remainder of their friends arrived, everyone went upstairs to The J[…]. They had to check their coats before entering the dance bar, a fact which will become important later. On entering The J[…], J.I. purchased another drink and danced with friends prior to meeting Mr. Robertson at about 1:00 a.m.

[17] Mr. Robertson is a police officer. He has been employed with the municipal police service in Peterborough for the last 26 years, since 1990. He testified that he spent the evening of Friday, January 23, 2015 when he was off duty with a friend named J.O.. They were at Gerti's, a restaurant in downtown Peterborough, from about 7:00 to 9:30 p.m. During this period Mr. Robertson consumed four twenty ounce glasses of draft beer. He and Mr. J.O. then went to the Gordon Best Theatre for about one hour, during which time Mr. Robertson consumed a bottle of beer. Next they went to R[…] Pub, where Mr. Robertson consumed a further beer and two drinks of vodka between about 11:00 p.m. and 1:00 a.m. At that time he went upstairs to The J[…] where he met J.I. At last call, he purchased a further drink for each of them.

[18] In cross-examination, Mr. Robertson insisted that he was certain about the details of his alcohol consumption this night. Although he agreed that there was no particular reason for these facts to be memorable, especially since he was not alerted to the sexual assault allegations until six weeks later, Mr. Robertson said that he was absolutely sure of the exact number of drinks he consumed. He explained that his certainty arose because he is "a numbers guy".

ii) At The J[…]

[19] J.I. testified that her memory is spotty from the time she arrived at The J[…]. She had a recollection of dancing with Mr. Robertson, of kissing him, and then of getting into a taxi with him after the bar closed. She was unable to say how they met, or to recall most of the details of the time they spent together.

[20] It is worth noting that J.I. completed a police foundations course at F[…] College in Peterborough, and then had a placement with the municipal police service in Peterborough for a number of months in […]. Mr. Robertson was a police officer employed by the same service at the time. After the placement ended, J.I. dated a police officer who was known to Mr. Robertson for about three months. At trial, J.I. testified that she did not remember Mr. Robertson when she met him at The J[…]. She said she did know that he was a police officer, but did not recall how she learned this fact. Mr. Robertson testified that he did not initially remember J.I., but eventually learned of their connection through conversation later in the night at his home.

[21] Surveillance video from The J[…] shows that J.I. was on the dance floor at 12:57 a.m. when Mr. Robertson first entered the bar. The video shows that J.I. grabbed Mr. Robertson by the arm as he walked by. For most of the next hour and a half until closing time, J.I. and Mr. Robertson are shown on video together on the dance floor. They danced together, often in a physically intimate manner described as "grinding", and they also kissed and embraced.

[22] Mr. Robertson testified that the dance floor was quite loud, and that he and J.I. did not have much of a conversation at The J[…]. He said that as he entered The J[…] and walked across the dance floor to the bar area, he felt a tap on his shoulder and his arm being grabbed, which is consistent with the video. He turned and was greeted by J.I., who he said was smiling and appeared to recognize him. Although Mr. Robertson did not recognize J.I., he has been a patrol and beat officer in Peterborough for over 25 years, and has appeared in media interviews regularly in connection with his duties as a police officer. He testified that he is often recognized by people he doesn't know. After he turned around, he was embraced by J.I., and so he decided to "go with it". He agreed that he found J.I. attractive. Although he had been in a dating relationship with another woman for about two months at the time, it was not a serious or exclusive relationship. Mr. Robertson did not consider his relationship status to be an impediment to dancing with a woman he did not know.

[23] Mr. Robertson agreed that he and J.I. engaged in very intimate physical behaviour on the dance floor of The J[…] shortly after they met. This included kissing, the "grinding" of their pelvic areas together, and fondling of one another's genitals over the clothing. Prior to arriving at The J[…], Mr. Robertson testified that he had consumed eight alcoholic beverages over the course of the evening. He denied, however, that his alcohol consumption had any significant disinhibiting effect on his behaviour, and that it was not a contributing factor in his decision to engage in such public behaviour with a complete stranger. He was not concerned about his reputation in the community or the status of his current dating relationship. Rather, as he described it, "I just rolled with it."

[24] S.D. is a bouncer who worked at The J[…] on the night of January 23-24, 2015. He knows J.I. from a time when they both worked in the bar/restaurant industry in Peterborough about twenty years ago. Though he had not seen her in about ten years, he recognized J.I. this night. He also knows Mr. Robertson as a police officer who often conducted "walk throughs" of the bar in uniform, and as a regular patron when off duty. He observed J.I. and Mr. Robertson dancing together for a significant period of time. At one point, he recalled that J.I. approached him and asked him whether Mr. Robertson was a nice guy. Mr. S.D. told her that Mr. Robertson was a police officer, to which she replied "yeah, I know".

iii) Leaving The J[…]

[25] Mr. Robertson agreed that he bought a drink for J.I. at last call. After handing her the drink, they separated. He then spoke to some friends apart from J.I. He testified that he left the bar alone and walked downstairs to street level. He did not have to wait in line to get his jacket from the coat check, as he knew the bar staff from his years as a beat officer, and they kept his jacket for him behind the bar so that he could avoid waiting in the coat check line at closing time. Mr. Robertson testified that he asked a doorman he knew to get him a cab, as it is notoriously difficult to obtain a taxi in Peterborough at closing time. At this moment, he again felt a tap on his shoulder. Again, it was J.I., who told him that she had access to a taxi.

[26] The surveillance video, however, shows that Mr. Robertson and J.I. left the bar together. It shows that Mr. Robertson passed a ticket, believed to be J.I.'s coat check claim, to an employee before they are seen walking together off camera. They are next seen outside the bar together, with J.I. now wearing her coat. When confronted with the inconsistency between his testimony that he left the bar alone and the video footage, Mr. Robertson offered no explanation and said that his recollection was different than what was shown on camera.

[27] Video from outside the bar shows that J.I. approached the front passenger side of a minivan taxi parked at the curb immediately outside the bar. After a conversation with the front seat passenger, J.I. opened the sliding rear door to the minivan. Mr. Robertson then entered the cab through this door, followed by J.I. herself.

[28] J.I. recalled there being a huge line at the coat check, which she described as a "dreaded" part of the night. She said that she did not have to wait in the line, but could not recall how she retrieved her coat. She believed that she was with Mr. Robertson at this time. She left the bar and heard a female voice call out her maiden surname. Most of the friends she was with that night were old friends from high school, and often called her by her former last name. The voice belonged to her friend C.S., who was sitting in the front seat of a taxi. Both J.I. and Mr. Robertson got in to share the ride.

[29] It is significant that the extensive video surveillance I have seen of both Mr. Robertson and J.I. contains no obvious display of intoxication by either of them. At all times they appear to dance, walk and move about without any obvious signs of difficulty with balance, gait or coordination. This is consistent with the agreed statement of facts containing the evidence of J.I.'s friends who were at the bar, as well as the evidence of the bouncer S.D., who knew and had an opportunity to observe both parties.

[30] J.I. testified that she had no recollection of the cab ride. The next thing she did recall was being inside Mr. Robertson's home.

[31] Mr. Robertson testified that once in the cab he assumed that J.I. would get dropped off at the same address as her friend in the front seat, and that he did not have any intention at this time of going home with J.I. The cab proceeded to Ms. C.S.'s home in southeast Peterborough, and he was surprised when only Ms. C.S. got out. At this time, he and J.I. both gave their addresses to the driver, and Mr. Robertson learned that J.I. lived only a short distance from him in the west end of Peterborough. It was decided that he would be dropped off next since his place was on the way to J.I.'s home.

[32] Ms. C.S.'s evidence, however, is that she discussed the order of drop-offs with J.I. inside the cab, and that it was agreed they would drop off Ms. C.S. first. On the way to her house, J.I. and Mr. Robertson were kissing in the back seat. When she "tried to give money to pay for the cab, [J.I.] said 'No, don't pay. We're gonna get it'."

[33] During the ride from Ms. C.S.'s address to his home, Mr. Robertson said that he and J.I. kissed and were "up close and personal." After pulling into the driveway, Mr. Robertson got out of the taxi to retrieve some cash from inside his house. He said he intended to pay for the ride to his home, and to let J.I. pay for the remainder of the fare to her home, which he knew was only a short distance away.

iv) At Mr. Robertson's home

[34] Mr. Robertson said he entered his home alone through the garage door and went to his bedroom to retrieve some cash. When he returned down the bedroom hallway, he was surprised, pleasantly, to find J.I. standing in his living room. He told her to have a seat and left to pay the cabbie. According to him, he was "game" to continue spending time with her and willing to see where things would lead.

[35] J.I. could not recall entering Mr. Robertson's home, and has only a fleeting memory of the time spent is his living room. She recalls being on his couch, and then remembers being picked up by Mr. Robertson and being carried down the hall towards his bedroom. Her next memory is of being pinned face down on a bed while Mr. Robertson's penis penetrated her vagina. She was in pain and could not move her arms. She told him repeatedly to stop, and pleaded with him not to ejaculate inside her. He continued having intercourse with her, telling her repeatedly how she "liked to be fucked". She felt an excruciating pain on the top of her right shoulder and heard him say "that's so they know you're mine". He then ejaculated inside her, got out of bed and told her "don't worry, I'm fixed."

[36] Mr. Robertson testified that he and J.I. had a conversation in the living room while seated on separate chairs. At some point she moved to his chair and sat down straddling him, and they kissed and fondled one another. She got off and performed oral sex on him while he sat on the chair. He suggested they move to the bedroom. When he stood up she jumped into his arms and he carried her down the hall. After using the washroom, she lay down next to him in bed. According to Mr. Robertson, they then engaged in a variety of sexual acts, all of which were consensual. According to Mr. Robertson, the sexual activity included intercourse in the position described by J.I., but without her arms or body being pinned or forcibly held in any way. He denied that she told him to stop, or that he used violence. He denied uttering the words attributed to him by J.I., did not recall seeing any bruising on her shoulders or back, and did not deliberately injure her. Mr. Robertson said that they engaged in consensual and pleasurable sexual activity, and that afterwards, they lay together talking for an hour or more.

[37] During the course of what he described as their pillow talk, they shared personal information. Mr. Robertson learned that she had once dated a police officer he knew. He told her that he was a police officer. They shared details of their own personal circumstances, including marital status and children. They both expressed an interest in seeing one another again, and J.I. provided him with her phone number, which he recorded in his cell phone (he would later discover that he had done so incorrectly, only recording 9 of the 10 digits of her phone number). At around 6:00 a.m., Mr. Robertson said he decided it was time to take J.I. home.

[38] There is a dispute between J.I. and Mr. Robertson as to whether she was wearing underwear when she left his residence. He says that she was, that he drove her home and parked in her driveway. She leaned over and kissed him, then slid over in the seat, undid his pants and performed oral sex before removing her own pants and underwear and straddling him in the driver's seat of his pickup truck. They had intercourse until she stopped due to discomfort caused by the seat belt apparatus digging into her knees. According to Mr. Robertson, she then put her pants back on and left the truck carrying her underwear in her hands. This evidence is important because M.J. found a pair of J.I.'s underwear a few hours later on a bench inside her front door.

[39] For her part, J.I. testified that she had no memory of the pillow talk described by Mr. Robertson. After the sexual assault, her mind was racing and she wanted to escape. She recalled using the bathroom after the assault, where she experienced diarrhea. She testified that she recalled being dressed as she went to the bathroom, but was unsure whether this included her underwear. She agreed that she had told the S.I.U. in an interview on February 14, 2015 that she was "positive" that she put her underwear on at Mr. Robertson's home. At trial she agreed that she must have worn the underwear at some point, because when it was found on the bench it had semen on it. At another point in this S.I.U. interview, she told investigators that "[a]pparently when I came in I threw my underwear; I didn't even put it back on, I threw it on – I have a deacon's bench in my front foyer; I threw it there."

[40] J.I. also recalled seeing a photograph of Mr. Robertson's daughter at some point, but could not recall any details of their conversation about this or any other subject. Exhibit 7 is a photograph of Mr. Robertson's bedroom. It shows that there are a number of framed photographs of his daughter on a dresser.

[41] J.I. recalled being driven to her home by Mr. Robertson in his pickup truck. When they pulled into her driveway, he told her to kiss him goodbye, which she did. She said her eyes then filled with tears and she left his truck and went inside her home. When asked whether she engaged in sexual activity with Mr. Robertson in the truck, she said that she had no memory of this occurring.

v) J.I.'s post-incident statements

[42] After being dropped off, J.I. went inside to her bedroom and slept. She was woken from her sleep a few hours later by M.J., who had a key to her house. In her examination in chief, J.I. said that they argued. She could not recall details, but knows that they were yelling and fighting, and that Mr. M.J. left angry.

[43] In cross-examination, she agreed that she knew Mr. M.J. felt "hurt" during this discussion. She told SIU investigators in an interview on February 14, 2015, that "I remember fighting with him because he knew I disappeared all night." According to an agreed statement of fact, Mr. M.J. would have testified that she became upset when he asked her what time she got home. Mr. M.J. said he wondered "why I didn't hear from her" and that he complained to J.I. that "I never heard from you all night". J.I. denied that there was any expectation that she would remain in contact with Mr. M.J. over the course of the girls' night out. She explained that because he was married they did not normally text one another during evening hours in any event. According to Mr. M.J., after he questioned her whereabouts, J.I. told him that he should leave, that he would hate her, and that she shared a cab with a guy and went in to his place for a drink. Mr. M.J. "didn't need details, I kind of knew, or assumed, what had happened, and I became very angry." He told her that their relationship was over, and he left. Mr. M.J. placed the time of this visit as around 8:30 a.m. on Saturday, January 24, 2015.

[44] The evidence of Mr. M.J. is that he subsequently received a text message from J.I., and returned to her home at about 10:30 or 11:00 a.m. He let himself in once again, and found J.I. crying in the shower. When she came out, he noticed marks on her body and asked her what happened. J.I. began sobbing uncontrollably, and "she just told me that it didn't – it didn't end well, it didn't, it didn't go like how it should have. Which I asked her about and she wouldn't tell me. She just said that there were some things that – that happened that she doesn't remember, she told him to stop, but he didn't. And that he marked her and said that he was putting her – his mark on her."

[45] As he went to leave her home for the second time that day, Mr. M.J. "noticed a pair of balled up underwear sitting on the bench inside the front doorway of her residence, and the underwear matched the colour of the bra that he had seen sitting upstairs in her bedroom…. [H]e observed the rest of her clothes upstairs on the floor of her bedroom, including her jeans, her bra, and he believes he saw a shirt there as well." Mr. M.J. then had a further conversation with J.I. "I said, you didn't even get dressed to come home. And she said no, she just wanted out of there. She wanted out of there so bad that she just grabbed her stuff and – and threw her pants on to get out, so."

[46] The evidence of Mr. M.J. is that he and J.I. discussed the events of the previous night to a limited extent. "She didn't tell me right away what – what had happened or who this person was and I – I know that I was asking about it, about it, and she was trying to block it out and – and just that it was a cop, that she had dated a friend of his and that he remembered her. There wasn't – there wasn't a lot of details about the night which she shared with me because she couldn't remember a lot of the details." Mr. M.J. further stated that J.I. made efforts to discover the details by speaking to the people she had been with at The J[…].

[47] J.I. testified that she had little recollection of the conversation between herself and Mr. M.J. when he saw her bruises, but that she was "sure it revolved around the fact that something happened with somebody." In cross-examination, she agreed that she told S.I.U. investigators that when she got out of the shower "he saw the mark on my back, lost it again, I don't remember again conversation, I just remember yelling and I don't know – I don't know what about, probably the fact that I just fucked somebody basically."

[48] At 11:08 a.m. that same morning J.I. communicated by text message with S.D., the bouncer and friend who had worked at The J[…] the previous night. She asked him "Is that a good guy?" and then wrote "Please tell me he isn't picking up all the time".

[49] J.M. is a friend of J.I., but had not been with her at The J[…]. She exchanged text messages with J.I. on Saturday starting at about 11:00 a.m. Ms. J.M. was not called to testify, but according to the agreed statement of fact filed by the parties, she does specifically recall during their text message conversation that morning that [J.I.] was texting about how she had bruising and that Mr. M.J. had come over that day and noticed the bruising and was disturbed. Ms. J.M. would testify that she couldn't follow everything that [J.I.] was saying by text, but gathered that there was a sexual encounter with a man the night before. [J.I.] told her that the man she had gone home with was divorced or separated, and had a daughter in university. Ms. J.M. would testify that she recalls [J.I.] telling her that she and Mr. M.J. had argued, and that after he was being supportive. Ms. J.M. would testify that she, Ms. J.M., believed at the time of their text messages that there was a relationship potential with the man [J.I.] went home with – that he was a "potential suitor."

[50] The text message conversations with Mr. S.D. and Ms. J.M. from the Saturday occurred at around the same time that Mr. M.J. returned to J.I.'s home and found her crying in the shower. Ms. J.M.'s understanding from her text conversation with J.I. that morning is that Mr. M.J. was being supportive. This is consistent with Mr. M.J.'s evidence after the sexual assault disclosure was made to him on his second visit to J.I.'s home.

[51] Following a pre-trial application, the defence was permitted to cross-examine J.I. on an instance of sexual activity with Mr. M.J. that occurred during his second visit to her home on the Saturday. The Crown consented to the application on the ground that this evidence was potentially relevant to J.I.'s credibility in that she subsequently attended a sexual assault clinic on Monday, January 26 where she expressed fears of having contracted a sexually transmitted infection (S.T.I.) as a result of the unprotected forced intercourse with Mr. Robertson. At trial, J.I. admitted to having unprotected sexual intercourse with Mr. M.J. on the Saturday. Mr. M.J. confirmed that they engaged in intercourse briefly but stopped because it "was totally wrong". It was argued that J.I.'s actions in engaging in unprotected sexual intercourse with Mr. M.J., a man she cared for, was inconsistent with her claim to have been fearful of having contracted an S.T.I. from Mr. Robertson.

[52] J.I. denied the suggestion that she had no concerns about S.T.I.'s. She said that she cared about Mr. M.J. and would not have purposely hurt him. After she attended the sexual assault centre on Monday, she did contact Mr. M.J. and advise him that he should also get tested for S.T.I.'s.

[53] J.I. had a text conversation with S.J., one of the friends who had gone to The J[…] with her, on Saturday evening shortly after 7pm. Ms. S.J. referred to the fact that J.I. was "dancing and having a great time" and then asks "So did u go home? You looked pretty cozy with that guy." J.I. responded by texting "Cozy guy. Fucking mistake there…. Fuck." Later, in an apparent reference to the fact that she and Mr. M.J. had been texting earlier in the evening, J.I. wrote "Guy texting earlier in night showed up here this morning. Not good. At all." In her testimony, J.I. explained that she did not disclose Mr. M.J.'s identity to her friends because of his marital status and her belief that at least one of her friends knew Mr. M.J..

[54] Shortly after 7:00 p.m. on Sunday, January 25, J.I. had a text message conversation with C.S., who asked J.I. if she was still recovering from Friday night. J.I. replied "No wonder don't do that all the time. Here is the selfie I took of us. Lmao". She then forwarded a photo to Ms. C.S. which apparently was all dark, having been taken incorrectly. J.I. then wrote "Lmfao. Slept all day and crashed last night." "Lmao" and "Lmfao" stand for "laughing my ass off" and "laughing my fucking ass off" respectively.

[55] J.I. had a face to face conversation with another friend, C.P., on Sunday, January 25 at their sons' hockey game. Ms. C.P. evidence is that J.I. told her she that she had gone out with friends, that the evening did not end well, that she had been bitten and had a mark on her back. Ms. C.P. called J.I. on the phone that same night, and was told that J.I. had been dancing at the bar with a man she knew "from back in the day" who was a police officer with a teenage daughter. They later had a sexual encounter that began with consensual sex but then turned rough. J.I. described being pinned down, said that she asked the man to stop, that the man bit her and said something about marking her as his, and that the man did not use a condom but told her "don't worry I'm fixed". At that point Ms. C.P. recommended to J.I. that she seek treatment for S.T.I.'s. Her evidence is that J.I. became very emotional as she described these events.

[56] J.I. said that she had no memory of telling Ms. C.P. that the sexual encounter with Mr. Robertson started consensually. She testified that she has never had a memory of engaging in consensual sex with Mr. Robertson at any point.

[57] On the morning of Monday, January 26, J.I. phoned the office of her family doctor and spoke to E.C., a receptionist. J.I. was emotional and sobbing, and said that during the course of a girls' night out on Friday that she had been sexually assaulted. She requested counseling and testing for S.T.I.'s. J.I. "described that something started out as consensual sex and that she changed her mind and begged him to stop." She was referred to the Women's Health Care Centre at the Peterborough Regional Health Care Centre.

[58] It was suggested to J.I. that her statement to Ms. E.C. that the sexual encounter with Mr. Robertson began consensually was inconsistent with her evidence at trial that she had no memory of any sexual acts other than being forcibly penetrated. J.I. did not deny making this statement to Ms. E.C., but said this was an inference she drew from what she was able to remember and piece together of the night in question, including the fact that she and Mr. Robertson were kissing in the bar and cab, and the fact that he carried her down the hall towards his bedroom.

[59] Mary Waters is a sexual assault nurse at the Women's Health Care Centre at the Peterborough Regional Health Care Centre. She examined J.I. on the afternoon of Monday, January 26. As part of her examination, she made notes and completed a number of forms, which were filed as part of Exhibit 1 as an agreed statement of facts. She explained to J.I. that all patients had a number of options, one of which involved forensic evidence collection, which is the preferred option if the patient wishes to make a police complaint. J.I. was adamant that she did not want to report the incident to police. Accordingly, Ms. Waters' examination focussed on medical treatment. As a part of that procedure, she obtained a history from J.I. about the reasons for her attendance. She recorded this information in order to determine the appropriate course of treatment for J.I.

[60] Ms. Waters testified that J.I. was extremely upset, crying a lot and wringing her hands. J.I.'s level of emotional distress is something that Ms. Waters recalls independently. She conducted a head to toe physical examination, and documented her findings on a chart. She noted abrasions to both knees, a small scratch below the back of her neck, two small abrasions to her upper back, and two areas of bruising on her shoulder blades. On the left shoulder blade she noted a 2cm light blue/green bruise. On the right shoulder blade she noted a 4cm x 2cm area of purple/green bruising. She is familiar with bruising left by bites and hickeys, and said that neither bruise on J.I. was caused by a bite or hickey. She also took photos of the injuries to J.I., but those photos did not turn out due to an equipment malfunction. J.I. testified that she did not have any visible injuries prior to the sexual assault by Mr. Robertson. Ms. Waters also documented that J.I. reported soreness and tenderness to palpation on each side of her lower back in the kidney area.

[61] As part of the examination procedure, Ms. Waters also recorded statements made by J.I. about the incident that led to her attendance at the Women's Health Care Centre. Under the heading "History", she wrote: "States she was out drinking with friends Fri night (Jan 23rd). They all had a lot to drink and became separated from each other. Ended up going home with a male acquaintance. Started out consensual then "turned bad". States he flipped her over on her stomach – forced her down with his left arm across her upper back – it hurt her – she told him to stop he didn't."

[62] Ms. Waters also documented responses given by J.I. to a series of questions under the heading "Sexual Assault History" on a pre-printed form. Under a heading "During the assault was there penile penetration of the victim's: Vagina, Mouth, Anus" there are two columns: "Attempted" and "Completed". Under each of these columns there are check boxes for "Yes", "No", and "Don't Know". Ms. Waters recorded J.I.'s responses as follows: vaginal penetration attempted and completed; oral penetration attempted and not completed; anal penetration not attempted. There are similar columns for digital penetration, marked "Yes" for vaginal penetration and "No" for oral and anal penetration. There are similar columns for penetration by a foreign object, all of which are checked "No" for vaginal, oral and anal penetration. None of the "Don't Know" boxes on the form were checked off.

[63] It was suggested to J.I. that the responses noted by Ms. Waters on this form mean that J.I. had a recollection of the nature of the sexual acts performed and not performed by Mr. Robertson upon her during their sexual encounter, which is inconsistent with her testimony at trial that she has no recollection of any sexual acts apart from the assault itself. J.I. insisted that she had no present memory of any other acts, and further that she has never had any such memory. She has never had any idea whether oral or digital penetration occurred. She denied that she would have provided responses to Ms. Waters consistent with the boxes checked off by Ms. Waters on the "Sexual Assault History" form.

[64] Ms. Waters also made note of J.I.'s self-reported alcohol consumption. She noted "20 rye and coke approximately over the course of the evening". As detailed earlier, J.I. testified to consuming approximately eight rye and cokes. When asked about this apparent inconsistency, she testified that she was attempting to make sense of her loss of memory on this evening. She would have told Ms. Waters that when she was younger she often went out with friends and consumed upwards of 20 rye and cokes (her drink of choice) with no effect on her memory, so she could not understand the loss of memory on this night when she consumed significantly less alcohol.

[65] Sometime in mid-February, J.I. had a conversation with J.M. over dinner at The Keg restaurant. J.I. had exchanged text messages with Ms. J.M. on January 24, detailed earlier. At The Keg, J.I. told Ms. J.M. that she had been sexually assaulted by a police officer, that she had memory loss but that the memories which did exist were disturbing. J.I. also told her that she had met her assailant twenty years ago when she dated another police officer. J.I. said that she was pinned down so that her arms could not move during forced sexual intercourse, and that her assailant uttered words to the effect of "now they'll know you're mine".

[66] On February 11, 2015, Cst. Nancy Vallenga, a member of the Peel Regional Police, was working at a career fair in Peterborough. By coincidence, she worked a booth next to a booth where J.I. happened to be working. They had conversation throughout the day. At the end of the day, J.I. disclosed to her that she had been sexually assaulted about two weeks previously by a Peterborough police officer. She said that they met in a bar and "after they took a cab to his house, things progressed, she said no, and he continued…. [J.I.] said the police officer was holding her hands behind her back, had her on her stomach and forced himself on her. [J.I.] said that it hurt her, and she remembered telling him "don't come inside me" repeatedly, but he finished and told her not to worry because he had been fixed. [J.I.] said that at some point he gave her a large hickey on her shoulder."

[67] It was suggested to J.I. that her statement to Cst. Vallenga that Mr. Robertson was holding her hands behind her back was inconsistent with her trial testimony that she recalls being pinned but could not say where her hands were at the time. J.I. said that what she told Cst. Vallenga was that she did not know if Mr. Robertson had her hands behind her back or if they were pinned under her body.

[68] On February 13, 2015, J.I. placed a telephone call to Deputy Chief Timothy Farquharson of the Peterborough Police Service. At trial, she explained that she had been given the name of another officer by Mary Waters to call in the event that she decided to make a police report. She decided to proceed with a complaint after speaking to Cst. Vallega, but her calls to the officer mentioned by Ms. Waters were not returned. Apparently, Deputy Chief Farquharson was known to a friend of J.I., who assured her that the Deputy Chief would take her complaint seriously.

[69] J.I. told Deputy Chief Farquharson on the phone that she had been sexually assaulted by Chris Robertson after meeting him in a bar. J.I. told him that "they went back to his place, and that the next "clear part" is that she was forced down with his knee on her back. One of her arms was forced up behind her back and she couldn't move the other arm…. [J.I.] said the next thing she remembers is he was penetrating her, and she was yelling get off me, and don't come in me."

[70] Deputy Chief Farquharson made notes of his conversation with J.I., which were filed on consent as part of an agreed statement of facts. A portion of those notes reads "[s]he said Chris left his 'marks on her so everyone would know she is his.' It was described to me as a large purple hickey on her upper back area."

[71] It was suggested to J.I. in cross-examination that her statement to Deputy Chief Farquharson about the placement of her arms during the sexual assault was inconsistent with her testimony at trial that she could not remember where her arms were while she was being pinned down. She responded that she could not remember making this statement to Deputy Chief Farquharson, and that she has no memory of Mr. Robertson pinning her down in the manner described in his notes.

[72] J.I. was interviewed by investigators from the Special Investigations Unit (S.I.U.) on February 14, 2015, the day after her conversation with Deputy Chief Farquharson. A search warrant for Mr. Robertson's home was then executed on March 3, 2015. J.I. was interviewed by S.I.U. investigators for a second time on April 16, 2015. The S.I.U. interviews of J.I. were recorded and transcribed, and J.I. was cross-examined at trial on a number of areas where it is claimed that her trial testimony is inconsistent with the statements she made to the S.I.U.

vi) Mr. Robertson's post-incident conduct

[73] Mr. Robertson testified that he was attracted to J.I., that he enjoyed the time spent with her on January 24, and that he was interested in seeing her again afterwards. He said that they discussed getting together again during a conversation inside his kitchen just before he drove J.I. home. She gave him her telephone number, which he entered into his cell phone.

[74] Mr. Robertson said he tried to contact her about a week later, but realized then that he had mistakenly only entered nine of the ten digits of J.I.'s phone number into his contact list. He entered the missing digit from memory and sent a text message to this number. Although it turns out his memory of the missing digit was correct, it was discovered during the course of the evidence at trial that Mr. Robertson had also incorrectly entered one of the nine digits that he did record. He received no response to the text message that he sent, which would not have been sent to J.I.'s phone in any event due to his error. Despite knowing where J.I. lived and worked, Mr. Robertson made no further efforts to follow up with her. When it was suggested to him in cross-examination that he did not pursue her because he knew that he had sexually assaulted her, Mr. Robertson responded that after receiving no response to his text message, he simply assumed that J.I. was no longer interested and wrote the affair off as a one night stand.

ANALYSIS OF THE EVIDENCE

i) Do I believe the testimony of Mr. Robertson?

[75] I will begin my analysis by considering the credibility and reliability of the only defence witness – Christopher Robertson. I begin here because, as I stated earlier, if I believe his testimony that he did not engage in sexual activity without J.I.'s consent, that is the end of the matter.

[76] Mr. Robertson testified in an apparently forthright manner. He has a good recollection of the events in question, including a detailed recollection of the precise number and nature of alcoholic beverages consumed over a period of several hours at a number of different locations. I agree with the Crown that his ability to recall such details, which would have been unimportant and unremarkable at the time, is strange, but I am not prepared to draw a negative inference as a result of the striking precision of Mr. Robertson's memory of these details.

[77] Mr. Robertson also testified in great detail about the variety, sequence and approximate lengths of time of the sexual acts that he and J.I. engaged in, as well as the details, location and order of their conversations afterwards. I am not prepared to draw a negative inference about his credibility based solely on the level of detail contained in his testimony, for it may be that Mr. Robertson simply has a good memory and a capacity for recalling seemingly unimportant details.

[78] Having said that, I am troubled by aspects of Mr. Robertson's evidence. He was as precise and certain in his testimony on other details – most notably that he left The J[…] alone after he and J.I. each separated to their own group of friends, and that he only ended up back together with her after she effectively pulled him into the cab. He repeated this sequence of events twice in his evidence with apparent certainty until confronted with incontrovertible video evidence clearly demonstrating that this testimony was untrue. There are only two reasonable possibilities – that Mr. Robertson was simply wrong about this sequence of events, or that he was attempting to mislead me about the true extent of his interest in J.I. at closing time. It is difficult to accept that Mr. Robertson was simply mistaken about these details, given his complete level of certainty and precision in all other matters. I find that his testimony on this point was deliberately misleading.

[79] I am bolstered in this conclusion by the evidence that I heard about the cab ride. J.I. left the bar with Mr. Robertson. He appears to have used his knowledge of bar staff to secure her coat without her having to wait in the "dreaded" coat line, and Mr. Robertson says he also sought the assistance of staff to secure a cab home. It is only pure chance that when they step outside together that J.I. was called to by a friend in a cab parked out front. Grateful for the ride, they got in the back seat together. In those circumstances, Mr. Robertson's claim that he "assumed" J.I. would get out of the cab at the friend's house makes no sense. J.I. left the bar with him, and they stumbled across this friend by chance. Further, the agreed upon evidence of the friend, C.S., suggests that the plan from the moment J.I. and Mr. Robertson entered the cab was that they would remain together once Ms. C.S. was taken home.

[80] The only reasonable conclusion I can reach from an analysis of this evidence is that Mr. Robertson was attempting to minimize the extent of his interest in J.I. The inescapable inference from the evidence as a whole is that he was clearly interested in her from the moment they met inside The J[…]. Nothing else explains why this 55 year old man, a 25 year veteran of the local police service, well known in the community and in this particular bar, himself involved in a dating relationship, would engage in such a public display of sexual attraction towards a virtual stranger. The only reasonable conclusion is that Mr. Robertson, disinhibited by the significant amount of alcohol that he had consumed, was very interested, sexually, in J.I. I find no fault in the fact that he felt such interest, which was clearly reciprocal between these two consenting adults. What is troubling is the extent to which Mr. Robertson sought to mischaracterize his interest during the course of his testimony. Doing so was deliberately dishonest on his part, and it leads me to conclude that I simply cannot accept his evidence at face value.

[81] This does not mean that his entire testimony is incapable of belief. For example, I do not draw any negative inference from the fact that Mr. Robertson made minimal efforts to communicate again with J.I. after January 24. Given the chance nature of their encounter and his testimony that he was involved with another woman, I cannot say that his decision to simply put their encounter down to a one time affair was unreasonable. Though his failure to take additional steps to track down J.I. through her address or known place of employment is consistent with a wish not to see her again after having assaulted her, it is equally consistent with Mr. Robertson's explanation.

[82] The fact that I have some reservations about Mr. Robertson's testimony does not mean that I reject it entirely, or that it is incapable or leaving me with a reasonable doubt that the sexual activity with J.I. was consensual. My findings simply mean that I must approach his testimony with caution. To determine whether I am left in a reasonable doubt, I must assess Mr. Robertson's testimony in the context of the evidence as a whole. I will therefore now turn to an assessment of the remaining evidence, most importantly the testimony of J.I.

ii) Does Mr. Robertson's testimony leave me with a reasonable doubt?

[83] As stated previously, the burden of proof in a criminal trial remains on the prosecution throughout to prove the case beyond a reasonable doubt. Where an accused testifies and denies committing the offence alleged, the Crown will not have met their burden if the testimony of the accused person, considered in the context of the evidence as a whole, leaves the trier of fact with a reasonable doubt. To determine whether I am left with a reasonable doubt by Mr. Robertson's testimony in this case, I must therefore assess his evidence, which I have discussed above, in light of all of the evidence I have heard. Since the crucial evidence against him is the testimony of J.I., I will focus this part of my analysis on her credibility and reliability as a witness.

[84] In assessing J.I.'s credibility as a witness, I place no weight on the issue of whether or not she engaged with further sexual activity with Mr. Robertson in his truck in the driveway of her home as described by Mr. Robertson. This is simply not relevant to whether he assaulted her earlier that morning. There is no script for how sexual assault victim's should behave, and it would be dangerous and irresponsible, in my view, to infer that J.I. is more likely to have consented to the earlier sexual activity because she engaged in consensual sexual activity in the truck. This sort of long-discredited myth has no place in the modern criminal trial. Since this issue has no bearing on my decision, I need not decide whether the activity described by Mr. Robertson in his truck actually happened.

[85] Nor do I draw any negative inference from the fact that J.I. apparently consumed a significant amount of alcohol on the night in question. J.I. is a responsible adult who made plans to go out with a number of friends on a weekend where she had no childcare responsibilities. She and her friends made arrangements for transportation so that no one would be in a position to drive while under the influence of alcohol. I accept the agreed upon evidence of the multiple witnesses who saw and spoke to J.I. that evening, that while she had consumed enough alcohol to display its effects, she exhibited no gross signs of intoxication. The video evidence also confirms the fact that she appeared to be mildly intoxicated at most.

[86] Furthermore, although I granted the defence application pursuant to section 276.2 of the Criminal Code to cross-examine J.I. on her sexual activity with M.J. later the same morning of the alleged assault, this evidence also plays no part in my decision. Although there is an inconsistency between J.I.'s fear of having contracted a sexually transmitted infection from Mr. Robertson as expressed to E.C. and Mary Waters the following Monday, this fear appears to have been brought into focus by her conversation with C.P. on the Sunday. At the time that she engaged in sexual activity with Mr. M.J. on Saturday their relationship was clearly strained by the events of the previous night, and it is not surprising that she would have sought comfort and intimacy with her partner. On the evidence, fear of S.T.I.'s was not her paramount concern at the moment (nor did it appear to be a concern of Mr. M.J.), and I do not draw any negative inference from the fact that they had unprotected sex, as was their normal practice.

[87] The defence argued that J.I. had a motive to fabricate the allegation of sexual assault in order to hide a consensual one-night stand from M.J. so that she could preserve her relationship with him. I have considered this argument and reject it. I accept J.I.'s evidence that Mr. M.J., as a married man himself engaged in an affair, would have had no right to demand fidelity from her. It was J.I. herself who disclosed the sexual encounter with Mr. Robertson to Mr. M.J., who would otherwise never have known. Further, if the allegation were a fabrication designed to absolve J.I. from responsibility, it makes no sense that she would leave Mr. M.J. with the impression that she voluntarily went home from a bar with another man for a consensual sexual encounter that turned bad.

[88] Although I have found there to be no air of reality to the alleged motive to fabricate, I am nevertheless troubled by inconsistencies between the evidence of J.I. and Mr. M.J.. In particular, J.I. was less than forthright about the true nature of their relationship at the time of this incident, and her denial that Mr. M.J. was expecting some communication from her during the course of the "girls night out" does not withstand critical scrutiny. She said that they do not normally text one another during evening hours because Mr. M.J. is usually with his spouse, yet on this night they were texting one another between 7:00 and 9:30 p.m., when she had friends over to her house prior to going to the bar. Also, the fact that he entered her home unannounced early Saturday morning and demanded to know her whereabouts the night before can only mean that, in Mr. M.J.'s mind at least, J.I. had "disappeared" the previous night.

[89] It is equally clear that J.I. appreciated how Mr. M.J. felt, for she tells him that he will be angry with her for what's she's done, and she acknowledged in cross-examination that she understood he would be "hurt" to learn she had been intimate with another man. I have no interest in passing judgment on the relationship between Mr. M.J. and J.I., but am left with the impression that she was not entirely candid with me in her responses to questions about this relationship. While this in no way means that J.I. is necessarily being untruthful on the issue of consent between herself and Mr. Robertson, I cannot ignore the fact that she was less than fully truthful on an important issue. As a matter of common sense, this raises concerns about the credibility of her testimony as a whole.

[90] Another area where I have concerns about the testimony of J.I. is her claim of memory loss. Throughout this trial, J.I. repeatedly answered questions about her activities on the date of the alleged assault and the following days by stating "I have no memory of that" or using similar words. I have been offered no logical explanation for a memory loss on her part. J.I. consumed a significant, though not overwhelming amount of alcohol over the course of several hours. She spent the night in the company of others who consumed similar amounts, all of whom appear to have a good recollection of the evening. Virtually every person who had significant contact with J.I. over the course of that night described her in similar terms – that she was under the influence of alcohol, but was still coherent, rational and did not display any obvious physical signs of extreme impairment. The extensive video which has been filed confirms this common opinion. No one had any concerns about J.I.'s condition or her safety. J.I. repeatedly expressed puzzlement at her loss of memory, stating that she had on numerous occasions consumed more alcohol without this sort of memory loss. The only reasonable conclusion I can reach is that there is no link between her alcohol use and the loss of memory.

[91] What is more troubling, however, is the evidence that J.I. has repeatedly, on numerous other occasions, told many other people that she had a memory of events that she denied having when she testified at trial. Hours after the events, she told M.J. that she shared a cab with a guy and went into his place for a drink. At trial, she said she had no memory of how or why she went inside Mr. Robertson's home, no memory of being asked in for a drink, and no memory of having a drink inside his home. During Mr. M.J.'s second visit Saturday morning, she told him that Mr. Robertson was a police officer, that she had dated a friend of his, and that he remembered her. At trial, she had no memory of having such a discussion with Mr. Robertson, though S.D.'s evidence is that J.I. was aware that Mr. Robertson was a police officer at The J[…].

[92] During her text message exchange with J.M. on Saturday, which would have occurred some five to eight hours after the alleged assault, J.I. said that her assailant was divorced or separated, that he had a daughter in university, and that J.I. considered him a "potential suitor". At trial, J.I. had no memory of learning these personal details about Mr. Robertson, nor did she recall describing him in such terms to Ms. J.M.. Later that weekend, she told C.P. that she knew Mr. Robertson from "back in the day", that he was a police officer and had a teenage daughter. J.I. told her that they started out having consensual sex that turned rough and became non-consensual. At trial, J.I. said she had never had a memory of consensual sex with Mr. Robertson.

[93] J.I. made similar statements about consensual sex turning non-consensual to E.C., the receptionist at her doctor's office on Monday morning. I appreciate that J.I. told me that these statements were likely a conclusion she drew after speaking to other people about her behaviour with Mr. Robertson at the bar and in the cab, but the details she goes on to provide to Mary Waters suggest otherwise. I accept that Ms. Waters took her duties seriously in recording the questions and answers provided to her by J.I. when filling out the sexual assault history forms. J.I. clearly told her that she had a recollection of specific consensual sexual acts that occurred between her and Mr. Robertson. Ms. Waters had the option of checking a box marked "Don't Know" if J.I. had expressed uncertainty. The only logical conclusion I can reach from this body of evidence is that J.I. does remember a good deal more about her encounter with Mr. Robertson than she was willing to disclose in her testimony. She related numerous personal details to others that could only have come from their "pillow talk" after sex, and denied having these memories at trial. She described a series of consensual sexual acts to Ms. Waters that are consistent with Mr. Robertson's testimony, and denied having any memory of these at trial.

[94] I am deeply troubled by J.I.'s testimony that she has no memory of sexual activity apart from a period of violent, non-consensual activity. Clearly, there is much that occurred over the hours she and Mr. Robertson spent together in his home that she claims not to recall, both before and after the period of sexual activity she described. J.I. testified that she remembers only bits and pieces of what occurred throughout their encounter, and she was unable provide a complete narrative. This loss of memory is inconsistent with statements made to numerous other people after the alleged assault. There are only two reasonable possibilities to explain these inconsistencies: either J.I. was not being truthful in her testimony on this point, which raises real concerns about her credibility in general; or she genuinely has no present memory, which calls into question the reliability of those memories that she does have.

[95] In R. v. Morrissey, the Ontario Court of Appeal explained the relationship between a witness' credibility and reliability in the following terms:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. [para. 33]

[96] I am unsure whether J.I. was being deliberately dishonest about memory loss, or whether her memory is simply unreliable. Either way, as a matter of common sense the concerns I have identified mean that I must be cautious about relying upon her evidence. Though I can believe some, none or all of what any witness tells me, the fact that I have found a witness' testimony to be unreliable about important issues dictates that I should be cautious when assessing the reliability of her evidence as a whole.

[97] The testimony J.I. did provide amounts to nothing more than brief momentary glimpses out of encounter that lasted for several hours from the time J.I. and Mr. Robertson met in the bar until he drove her home after the alleged sexual assault. I cannot place the alleged non-consensual sexual acts in any context based on J.I.'s testimony. Many of the memories she does have corroborate aspects of Mr. Robertson's testimony. Many of the details that J.I. disclosed to other people in the aftermath of this incident also corroborate aspects of Mr. Robertson's testimony and contradict her own testimony in important respects. It would, in my view, be unsafe to base a criminal conviction on the brief selection of memories presented by J.I. in her testimony in these circumstances. I must consider the absence of memory by J.I. along with testimony of Mr. Robertson that she consented to all sexual activity: see R. v. Esau, supra, at para. 20.

[98] The injuries to J.I. observed by Mr. M.J. and Ms. Waters do not assist me in determining whether J.I. withdrew her consent at some point during a sexual encounter with Mr. Robertson. The bruising observed by Ms. Waters in inconsistent with a mark made by Mr. Robertson's mouth, which is how it was described by J.I. to a number of people to whom she had no reason not to be truthful. The balance of the injuries are not explained by either the testimony of Mr. Robertson or the brief glimpses provided to me by J.I. In my view, it would be unsafe to draw any firm conclusions based on the marks seen on J.I. by witnesses.

[99] Therefore, despite my conclusion that Mr. Robertson was less than truthful in his testimony, I cannot wholly discount his testimony on the issue of consent. According, I am left with a reasonable doubt that J.I. withdrew her consent to sexual activity with Mr. Robertson.

CONCLUSION

[100] At the end of the day, it is impossible for me to determine where the actual truth lies in this case. I have concluded that Mr. Robertson was deliberately dishonest in much of his testimony, and I cannot believe his version of events. However, the testimony of J.I. was also either dishonest or unreliable in important respects. Although it is certainly possible, perhaps even probable, that Mr. Robertson continued to engage in sexual activity with J.I. after she withdrew her consent, and that he did so in the violent manner she described leaving the injuries seen on her body, I cannot be sure that this is so. I have a reasonable doubt that Mr. Robertson engaged in sexual activity with J.I. without her consent, and Mr. Robertson, like any accused person, is entitled to the benefit of that doubt. Accordingly, he is found not guilty.

Released: June 8, 2016

Signed: "Justice S.W. Konyer"