WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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

Court: Ontario Court of Justice

Date: 2016-06-29

Court File No.: Brampton 14-12151

Between:

Her Majesty the Queen

— AND —

C.P.

Before: Justice J.M. Copeland

Heard on: January 25 and 26, February 5, and May 3 and 4, 2016

Reasons for Judgment released on: June 29, 2016

Counsel

R. Prihar — Counsel for the Crown

S. Hinkson — Counsel for the defendant C.P.

Decision

COPELAND J.:

Introduction

[1] C.P. is charged with one count of sexual assault and one count of unlawful confinement. The incident giving rise to the charges occurred on September 27, 2014.

[2] The complainant, E.H., lives nearby the defendant. Their daughters attend the same school. The Crown's case consisted of the evidence of Ms E.H.; the evidence of her then boyfriend, D.M., primarily in relation to Ms E.H.'s demeanour in the time immediately following the alleged offences, as well as in relation to some communication with the defendant soon after the alleged offences; and a series of text messages between Ms E.H. and Mr. C.P. the day after the alleged offences, which Crown counsel argues constitute admissions by Mr. C.P. that he committed the offences. Mr. C.P. testified in his own defence and denied the allegations. Thus, the case turns primarily on my assessment of the credibility of the Crown and defence evidence in light of the Crown's burden to prove the charges beyond a reasonable doubt.

The Burden of Proof and Credibility

[3] The starting point in a criminal trial is that the defendant is presumed innocent. The Crown bears the burden to prove the charges beyond a reasonable doubt. The reasonable doubt standard applies to the assessment of credibility of evidence. Thus, the court must not approach the assessment of credibility as a contest of whose evidence the court believes more. To do so would be inconsistent with the Crown's burden to prove the charges beyond a reasonable doubt. Rather, the court should follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. If the court believes the defendant's evidence, he must be found not guilty. If the court does not believe the defendant's evidence, but it leaves the court with a reasonable doubt, he must be found not guilty. Finally, even if the defendant's evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown's case proves the charges beyond a reasonable doubt.

[4] In relation to the credibility of the defence evidence, in the event that court does not believe the defence evidence and is not left in a reasonable doubt by it, that in itself does not mean the Crown has proven its case. The court must still consider under the third branch of W.D. whether the Crown's case proves the charges beyond a reasonable doubt.

[5] In assessing the evidence, the Court should consider all of the evidence together, rather than assessing individual pieces of evidence in isolation. The court can accept some, none or all of any witness' testimony. For example, if some parts of the testimony of a defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at para. 11.

[6] The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

[7] If, after careful consideration of all of the evidence, the court does not know who to believe, this constitutes a reasonable doubt and the court must acquit: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 10-12.

[8] Pursuant to s. 274 of the Criminal Code, corroboration is not required in order to find an allegation of sexual assault proven beyond a reasonable doubt. The complainant's evidence alone can be the basis to find an allegation of sexual assault (or another offence) proven, if found to be sufficiently credible and reliable to meet the reasonable doubt standard of proof.

[9] As I have indicated, this case turns on my findings of credibility. If I believe the defendant's evidence, or I am left in a reasonable doubt by it, then I must have a reasonable doubt that the Crown has proven lack of consent beyond a reasonable doubt. If I believe Ms E.H.'s evidence in the context of all of the evidence beyond a reasonable doubt, and the defendant's evidence does not leave me with a reasonable doubt, then the Crown will have proven lack of consent beyond a reasonable doubt. The versions of events of Ms. E.H. and Mr. C.P. are sufficiently different as they relate to consent or lack of consent that mistake is not realistically in issue. On Ms E.H.'s evidence, she clearly told the defendant to stop. Counsel for the defendant agreed that sexual talk preceding the sexual contact (if I believe the defendant's evidence or am left in a reasonable doubt by it on the issue of what preceded the sexual contact) could not provide a basis to find an honest but mistaken belief in consent on the part of the defendant. And I agree with Crown counsel that the defence could not point to any basis for an honest but mistaken belief in consent, apart from the defendant's version of events – which takes me back to the issue of credibility. Thus, honest but mistaken belief in consent is not a live issue in this trial. The only live issue is whether the Crown has proven its version of events, including lack of consent, beyond a reasonable doubt, or whether the defendant's evidence leaves me with a reasonable doubt, in particular as it relates to consent.

Overview of the Evidence

[10] I will briefly summarize the evidence of each witness, as well as the text messages in order to provide context for my assessment of the evidence. This summary primarily addresses the evidence given by each witness in examination in chief. I will address issues raised in cross-examination of each witness in the section of these reasons where I outline my assessment of the evidence.

The Evidence of Ms E.H.

[11] Ms E.H. testified that on the afternoon of September 27, 2014, she went to her daughter's school to pick her up after an overnight basketball game. When she arrived at the school, Mr. C.P., whose daughter was also on the team, was there picking up his daughter. Ms E.H. did not know him and had never spoken to him before.

[12] They engaged in conversation at the school. As Ms E.H. recalled, they talked about the girls' basketball team, about Mr. C.P. possibly coaching the girls in basketball, and about what each of them did for a living. Mr. C.P. told Ms E.H. that he did landscaping. She made a comment about her lawn being a mess, and needing cutting. He offered to lend her his lawnmower. She declined the offer.

[13] During the conversation, Mr. C.P. offered to take his daughter and Ms E.H.'s daughter for basketball practice. Ms E.H. suggested that the girls exchange numbers. Since neither girl had a cell phone, they swapped numbers on Ms E.H.'s and Mr. C.P.'s phones. Ms E.H. put Mr. C.P.'s number in her phone under the name "C.P.". Ms E.H. then took her daughter home.

[14] Once at home, Ms E.H. talked to her daughter about the game and then was doing laundry. Then she heard a loud noise outside like a lawnmower. She looked out, and saw Mr. C.P. cutting her lawn with a lawnmower he had brought with him. It was less than an hour after they had left the school. Ms E.H. testified that she had not been expecting Mr. C.P. to come to her house. She went out and said that he did not have to do that, but thank you. She went in and got him a glass of water, as it was hot out.

[15] Ms E.H. testified that she did not recall all the conversation while Mr. C.P. was mowing the lawn, but that they talked about personal stuff, life. He mentioned he was married. He asked if she was in a relationship, and she said she was. He mentioned a woman named Brenda who he had really liked. Ms E.H. testified that at first she thought it was a friendly conversation.

[16] Mr. C.P. completely mowed the front yard. He then started in the back, but Ms E.H. told him that he really did not have to do the back yard. At some point Mr. C.P. said to Ms E.H. that she reminded him of Brenda because she [Brenda] was beautiful and she [Ms E.H.] was attractive. Ms E.H. responded by saying, thank you.

[17] At some point Mr. C.P. went into the garage. Ms E.H. thought he went to put something away or get something out. She went in to see what was taking so long. She asked what he was doing. Mr. C.P. looked like he was tying his shoelace. He got up and walked towards her. She was near the door out to the backyard. He grabbed her by the waist and upper body and pulled her towards him so their chests were touching. She could not remember everything he said. He said that he wished he was able to do this with his wife. Ms E.H. told him to stop, but he did not do so.

[18] Ms E.H. could not remember the order of the various events in the garage.

[19] When she had gone into the garage, the garage door was open a little bit, about two feet. At some point after Mr. C.P. grabbed Ms E.H., she tried to open the garage door to expose what was happening. She was pressing the button to open the garage by the door at the side of the garage that goes into the house. Mr. C.P. was holding her by the neck with one hand and kept saying that this was all he wanted to do, to hold "her" like this. Ms E.H. did not know who he was referring to. When she tried to open the garage door, there was a struggle over it. He pushed the button to put it back down. She pressed it to put it up. This went back and forth. She was saying, "stop, let me go". Ms E.H. was ultimately unsuccessful opening the garage door and it ended in the closed position.

[20] Ms E.H. was scared. Her daughter was in her home, and she did not want her daughter to feel scared. She felt like something was wrong with the defendant, and felt she would be safest if she tried keep him calm. She said, "it's ok, I'm not mad at you, everything will be fine". He picked her up under her arms or around her waist and lifted her off the ground, which she believed he did because she was trying to get away. As she was sliding back down she could feel he had an erection. She kept telling him to stop, and that her daughter was home.

[21] At one point during the incident in the garage, Mr. C.P. bent down to tie Ms E.H.'s shoelace. She was trying to move away, and he held her by her hip. As he was getting up, he bit her on her vagina area over her clothes.

[22] Ms E.H. said to Mr. C.P., "my daughter is home and how would you feel if she saw you doing this to me, her mother". He then let her go. She backed away to the back door to the garage. She went out into the backyard. Mr. C.P. was still in the garage. She picked up a shovel and a gardening fork for her safety, although she did not use them.

[23] Mr. C.P. came out into the backyard. She was still holding the shovel and fork and told him not to come near her. He asked her about some bricks in her backyard and if he could have them. She said that she did not care, just take them and go. He wanted to go through the garage because it was closest to where his car was parked. She told him he was forgetting his gloves. He said he would come back tomorrow. She said, "no, you need to take your stuff and go".

[24] Ms E.H. testified that the time in the garage felt long to her, but said it was minutes, not hours. She felt violated and very scared.

[25] After Mr. C.P. left, she called her boyfriend, D.M.. She was crying and told him what had happened. He came to her house. She was still in the garage. She felt "stuck" after the incident. When Mr. D.M. was at her house, Mr. C.P. called on her cell. Mr. D.M. answered and spoke to him, and told him not to call back, not to come to Ms E.H.'s house, and not to be seen around her house.

[26] Mr. C.P. sent her some text messages, she believed the next day. A series of text messages between them was entered into evidence, and is discussed below at paragraphs 35-37. In relation the texts from Mr. C.P. talking about the two of them having a relationship and moving in together, Ms E.H. testified that they had not had any conversation when he was at her home about starting a relationship. Ms E.H. showed the texts to Mr. D.M..

[27] Ms E.H. testified that she did not call the police on September 27, 2014 because she did not know what to do and she was shocked by the situation. She and Mr. D.M. discussed whether she was going to make a report to police. Ms E.H. made a report to police on September 28, 2014. Mr. D.M. attended with her and also made a statement to police.

The Evidence of D.M.

[28] D.M. was involved in a romantic relationship with Ms E.H. at the time of the alleged sexual assault, but they ended their romantic relationship in 2015, before either of them testified in this trial.

[29] Mr. D.M. testified that around 2:00 p.m. on the afternoon of September 27, 2014, he had had a telephone conversation with Ms E.H. about the possibility of him coming over to her home before he started work at 7 p.m. They did not confirm for sure that he would come, but he testified that Ms E.H. had said to him that she wanted to see him before he went to work.

[30] On his way to work at about 5:15 p.m., Mr. D.M. went by Ms E.H.'s home. He noticed that the grass had been cut and that the gate to the backyard was open. He made a U-turn to park in the spot on the street near her house he would usually park in. He saw a vehicle there that he had never seen before. When he saw the vehicle he thought Ms E.H. had someone over, so he decided to leave and continue on to work. He called Ms E.H. from his car as he was driving, but she did not answer.

[31] Ms E.H. called Mr. D.M. on his cell phone about 10 minutes after he left her home, while he was on Highway 401 close to the airport. She asked him where he was. He said he was on his way to work. She said: "Come back now. Turn around. I want to see you right now". Then she started to describe something that had happened to her, and said several times that she had been violated. Mr. D.M. testified that Ms E.H. did not sound like herself on the phone.

[32] Mr. D.M. went to Ms E.H.'s home. It took him about 15 minutes to get there. When he got there he found Ms E.H. crouched on the floor in the garage in a stooped position with her head on her knees. He testified that she seemed unlike herself, "out of it", timid and a little bit confused. She told him what had happened and told him the defendant's name. Mr. D.M. was trying to get her to stop being so afraid, and to see if she had any physical injuries (he saw none).

[33] Mr. D.M. also testified that while he was at Ms E.H.'s house that evening, her cell phone rang. She said it was Mr. C.P. (apparently based on the phone display). Mr. D.M. answered the phone. He called Mr. C.P. by name, and told him not to come around Ms E.H.'s home any more, not to even drive on her street, and to leave her alone. He testified that the defendant responded: "There's nothing going on. Everything criss" (meaning, everything is ok).

[34] Mr. D.M. and Ms E.H. had some discussion that evening about the possibility of her making a report to police (apparently inconclusive). The next day, Mr. D.M. saw some of the text messages between Ms E.H. and the defendant. That evening, Ms E.H. said she wanted to make a report to the police because she was afraid Mr. C.P. was going to come back. Mr. D.M. took Ms E.H. to the police to make a report, and he also gave a statement to police.

The Text Messages

[35] A series of text messages between Ms E.H. and Mr. C.P. from the day after the alleged sexual assault were entered into evidence. In the texts Ms E.H. several times describes aspects of the sexual contact between them the previous day, including describing it as an "attack", saying she told him to stop, but he continued, asserting that she did not consent to it or invite it, and asking why he did it. Mr. C.P.'s responses included:

• "True you didn't give me any invitation. But as I was talking your vibe and everything about you reminded me of how I fell in love with Brenda. Just someone I was able to talk to someone who listened! And to be perfectly honest if you are the woman I think you are then… Fuck it I'm ready to risk it all and I'm not happy you're man is too busy to make your home look good. All that aside for a moment I saw you ad [sic] my woman and how I would love you and make love to you. I am extremely sorry if I disappointed you or made you feel violated please forgive. Really sorry about that because hopping [sic] for us to be life long friends. Now that I reflect I was really selfish! Sorry!"

• "I know you don't know me but I'm a good man! After spending the little time with you yesterday I realized that I don't have to be unhappy. And I need to make a chang [sic] in my life and relationship. This and what happened or what I did woke up. Ya.. I hope you can forgive me I really had no bad intentions at all! Sorry"

• In response to a text from Ms E.H. in which she described feeling violated by Mr. C.P.'s actions, and closed with "I feel like my daughter is the one who saved me from you raping me to the fullest", he responded: "Whoo. No way I would never never never do that at all. I really didn't think this through at all. I thought you felt for me some what! Ok sorry my hand or up."

• In response to a text from Ms E.H. in which she said she had tried to open the garage door, and he attempted to close it back, and then she said "And even then you still picked me up face to face, so that I could slide down to feel your erection. Why?", Mr. C.P. responded: "Straight up to make you have a flimsy of if I was your man would be like! You didn't invite"

• "I know I'm hitting you with a lot right now and you are still upset with my behaviour yesterday but please just think about it".

• "E.H. from the bottom of my heart I sincerely apologize for violating you! You know two nights ago I prayed and ask God to give me a sign if I should stay or leave this situation. And yesyerday [sic] I got the answer I needed"

[36] In addition, in the texts after Ms E.H. has repeatedly described the sexual contact as being non-consensual and forced, and after she has told Mr. C.P. that he cannot call her, he sends numerous texts suggesting that they can have a relationship, and he would leave his wife, and eventually they could move in together.

[37] In addition, after Ms E.H. has clearly requested in the text messages that Mr. C.P. leave her alone and not call her, he continues with the text messages about the possibility of a relationship, and moving in together, and then suggests that he would like to have one of his female friends call Ms E.H..

The Evidence of Mr. C.P.

[38] Mr. C.P. testified that at around 12:30 p.m. on the afternoon of September 27, 2014, one of his daughters, who was in grade 10, called and said she was at school and asked him to pick her up. She had been away at an overnight basketball tournament. He drove to pick her up at the school.

[39] When he arrived at the school, his daughter was standing with one of her teammates (who turned out to be Ms E.H.'s daughter). He did not know the other girl's name, but had previously seen her in the neighbourhood. He suggested to his daughter that they offer the other girl a ride home. His daughter told him the girl's mother was coming to get her. Mr. C.P. suggested that the girl call her mother, and if she had not left or was far away, he could drive her home. He gave the girl his phone to make the call to her mother. She called and then said her mother was on her way.

[40] The other girl was in grade 9, and very tall. Mr. C.P. had coached basketball and other sports, and suggested that his daughter and the other girl practice together. The girl's mother arrived, Ms E.H.. She walked over and introduced herself. Mr. C.P. realized that he had seen her before dropping off a younger daughter at the same school that one of his younger daughters attended. But they had never spoken before.

[41] Mr. C.P. and Ms E.H. had a discussion about their daughters' basketball. Ms E.H. was smiling and said they thought she knew Mr. C.P. from somewhere. They had a discussion about where he went to school and sports, and possible mutual acquaintances. They talked about where they had each grown up. They had a discussion about her house, and that the lawn was a lot of work and needed cutting. He offered to lend her his gas lawn mower. He then suggested that the two girls exchange phone numbers, and later his daughter could bring the lawn mower over. They did not exchange phone numbers at that time, but he said he would drop the mower off later. Ms E.H. complained about the work of maintaining her lawn and talked about some work she wanted to do on her patio. Mr. C.P. told her he had started a landscaping business on the side of his regular job. He offered to help whenever her brother was ready to do work on her patio. Ms E.H. asked for a card. He did not have one. Ms E.H.'s daughter had Ms E.H.'s cell phone out, so she put Mr. C.P.'s name and number in her phone. Mr. C.P. said he and Ms E.H. were getting along well, and she did not seem in a rush to leave. They talked at the school for about half an hour.

[42] Ms E.H. and Mr. C.P. then each left in their vehicles to drive their daughters home. They were driving in the same direction, and every time he would get close to her vehicle, she would speed up. They kind of started to race (I note that I understood this evidence of the "race" as just a game, and not as evidence, for example, of unsafe speeds). His street is accessible from her street. He knew a shortcut to access it. She took a different route. He arrived at her street first, and then saw Ms E.H. arriving in her car. He put his hand out the window and did a fist pump, to say, "I beat you". Ms E.H. called him on his cell a few minutes later to say that someone had almost hit her as they were driving, and that was the only reason he beat her. They talked on the phone for a few minutes, and she reminded him about bringing the lawn mower.

[43] He arrived home, put the lawnmower in his vehicle and drove to Ms E.H.'s house. The grass was very high, and he thought it would be difficult to cut, so he began mowing the lawn. He had been mowing it for 5 to 10 minutes when Ms E.H. came out. They had a discussion about mowing the lawn, and he asked if she had a tool to pull weeds. She went to get it. When she came back they talked. Ms E.H. said she did not know why she moved. She complained about her nosy neighbours. She said she used to have her mother living with her, but her mother cramped her style. At some point Ms E.H. asked what his wife would think if she saw his car parked in her driveway. After some further discussion, Ms E.H. went inside, and Mr. C.P. continued mowing the lawn. At one point she came out to bring him a glass of water, and then went back inside.

[44] Just as he was finishing the front lawn, Ms E.H. came out. He pushed the lawnmower towards her and said that she and her daughter could take care of the back. Ms E.H. dropped her shoulders and made a hand gesture which he described as meaning, "oh, really". He then agreed to do the back yard, but said he could not stay long. Ms E.H.'s daughter was in the house.

[45] In the back yard they began discussing their relationships – his with his wife, hers with Mr. D.M.. At one point Ms E.H. raised whether his wife would be concerned with his vehicle in her driveway, and asked him to move his car. He moved it to the street. The discussion about their relationships continued, including that Mr. D.M. was married, but separated, although he had not yet listed his house to sell it.

[46] Mr. C.P. testified that the conversation became more intimate, and Ms E.H. asked how often he had sex. He said he was lucky if he got it once a month. She expressed surprise and said she could have sex every day, and that she was "really a nympho" in high school. She said she had been a good track athlete in high school, but because of men and sex, she got pregnant had messed up her track career. He testified that the sexual conversation continued, including conversation about sexual positions, and what kind of women Mr. C.P. liked, and oral sex.

[47] Mr. C.P. testified that at some point Ms E.H. was weeding and bent down about 6 feet in front of him and her bottom was in his face. He said, "you really shouldn't do that". She turned her head and shook her bottom and said, "you behave yourself". They then both stood up. She came over to him and said there was something on his face, and brushed it off. He said: "Wow, there's a lot of sexual energy between us. Do you feel that?" She responded: "Do you want me?" He said he had things he had to do, and went to take the bags of weeds and tools into the garage. Ms E.H. followed him into the garage.

[48] After he hung up the tools, he turned, and Ms E.H. was right in front of him. He put his hands on her shoulders and spun her towards the door (with her back to him). He said: "We're gonna have so much fun right now if you were my woman". She then pushed her bottom into his groin area. He hugged her and put his hands around her stomach. She put her hands over his. She then spun around to face him. They hugged each other, and caressed each other. They went over to the wall opposite the tools. She turned around from him and then turned back. They were backed up towards a little fridge or freezer in the garage, about 3 feet high. He lifted her up onto it with his hands on her waist. She was then sitting on the freezer. She wrapped her legs around his calves and pulled him towards her. He hugged her. She said, "we have to stop, I don't want my daughter to catch us like this". They stopped. He took her hand and helper her off the freezer. He said, "we're not doing anything, but if she comes, just walk towards the door". Ms E.H. took a couple of steps toward the centre of the garage. He then lifted Ms E.H. by the waist and said, "If I were your man we'd have so much fun". She said, "shh, my daughter, and my neighbours are nosy", and "no, no, I can't get caught doing this". She said quietly, "D.'s coming, D.'s coming". He understood her to be concerned that Mr. D.M. would catch them in the garage. He said they would hear D.'s car if he pulled up, and said he would go look.

[49] Mr. C.P. walked to the garage door and looked out the window in the door. He did not see anyone or any cars. Ms E.H. said, "let's go and look beside your car". She pressed the garage door to open it. He pressed the button to close the garage door because his penis was erect and he felt he could not go out like that. He said this and was joking about taking deep breaths to stop his erection. Ms E.H. said, "right". Then he noticed that her shoelace was untied, so he bent down to tie it. He felt Ms E.H. rubbing his head. She pulled his head into her groin. He nibbled at the inside of her thigh. He also nibbled at her vagina (over her clothes). She was rubbing his head and bringing it into her groin area.

[50] At this point the garage door was open 2 ½ to 3 feet. He said to Ms E.H., "let's go". He stood up and they started walking to the back of the garage. He pressed the garage door. It started going up. He asked her how to close it. She said all you have to do is keep your finger on it. When the garage door was up he saw a neighbour pulling into her garage and she made eye contact with him.

[51] He went to the back yard, where Ms E.H. was waiting. He said, "Don't you just want to be hugged sometimes?" She responded, "Yeah, but you can't be my man". He said, "Let's go". As he walked out, Ms E.H.'s hand brushed across his penis.

[52] They sat in the back yard and started talking about some extra interlocking brick patio stones she had. He had done some work with the same stones a month earlier, and had not had enough. He asked if he could have the extra ones she had. She went into the garage to get a bag. He put the bricks into the bag and took them out to his car. As he did that he noticed a car creeping towards him on the street, with a black man driving. He went back to the backyard. He told Ms E.H. that he had seen a car outside when he had gone out with the bricks, and he was not sure if it was him or not (D.). Ms E.H. looked concerned and told him he should take his lawn mower. At the same time Ms E.H. picked up her phone to make a call. He heard her say, "where are you?". Mr. C.P. indicated by a gesture that he was leaving. As he was leaving he saw a spot of grass he missed. He mowed it and then took the mower and left.

[53] Mr. C.P. testified that at the time he left his perception was that he had had an amazing interaction with Ms E.H.. He denied that he forced himself on her. He denied that he stopped her from leaving the garage.

[54] He went home, and got changed to run an errand to get a fishing license at Canadian Tire. He tried to call Ms E.H. on his cell twice and got no answer. He called again from Canadian Tire. A male answered, and told him not to come to Ms E.H.'s again and not to drive down her street. Mr. C.P. testified that he responded, "I don't know what you're talking about". He said the man responded (in Patois) to the effect of, "you go on and play the fool, and see what happens to you". Mr. C.P. responded, "Everything's criss man" (meaning, everything is ok).

[55] He testified that later he texted Ms E.H. around 11 p.m. to the effect of, "hey, are you OK?" She responded, "yes, everything is fine". He responded, "cool, I'm going to bed early because I'm taking the girls fishing in the morning". She responded, "enjoy your day fishing" (none of these texts were entered into evidence).

[56] Mr. C.P. gave evidence in relation to the texts entered into evidence from the day after the alleged sexual assault. In general he said that he understood that Mr. D.M. was upset because he had mowed Ms E.H.'s lawn, that he thought Mr. D.M. was with Ms E.H. and seeing the texts. Mr. C.P. testified that by his various statements in the texts he was trying to take responsibility for what happened in order to protect Ms E.H. from Mr. D.M.'s reaction. He testified that he was shocked when he was contacted by police that night.

Assessment of Evidence in This Case

The Evidence of Mr. C.P.

[57] I do not believe the evidence of Mr. C.P. and his evidence does not leave me with a reasonable doubt. My concerns with his evidence relate primarily to three areas. 1) His explanation for the apparent admissions of knowing that Ms E.H. did not consent to the sexual contact which he made in the text messages strains credulity. In the context of his limited acquaintance with Ms E.H., his explanation that he was trying to protect her makes no sense. 2) There were numerous inconsistencies in his evidence. 3) In light of his very limited acquaintance with Ms E.H., I find his evidence of a consensual sexual encounter in her garage unbelievable.

[58] I will deal first with his explanation of the text messages. I find that the text messages entered into evidence between Mr. C.P. and the complainant the day after the alleged offence clearly contain admissions by Mr. C.P. that he knew that Ms E.H. had not consented to the sexual contact. In the texts, she repeatedly accused him of sexually assaulting her. As outlined above, Mr. C.P. repeatedly responds by saying he was sorry he made her feel "violated", the he was "really selfish", that she did not invite the sexual contact, and that "I sincerely apologize for violating you". Although there are portions of the texts where Mr. C.P. says he "had no bad intentions", the picture that emerges from the texts as a whole is that Mr. C.P. was sexually interested in Ms E.H., and on the previous day allowed his sexual interest to govern his acts and he did not heed her contrary wish not to have sexual contact.

[59] Mr. C.P.'s explanation for these admissions in the text messages was that he thought Ms E.H.'s boyfriend was reading her texts, and for that reason by agreeing that he had sexually assaulted Ms E.H., Mr. C.P. was trying to protect her from her boyfriend getting angry at Ms E.H. because he and Ms E.H. had a sexual encounter, and he was just "playing along". I find that Mr. C.P.'s evidence in this regard is unbelievable, and it does not leave me with a reasonable doubt. The context in which he makes the claim that he was trying to protect Ms E.H. is that he had met her for the first time the previous day. I simply do not believe, or have a reasonable doubt, that anyone would admit having committed a sexual assault in order to protect someone he had just met. Admitting having committed a sexual assault is a very serious thing, and I do not believe that anyone's chivalry goes that far.

[60] Further, Mr. C.P.'s explanation that he thought Ms E.H.'s boyfriend was reading the texts and he was trying to protect her by admitting that he had sexually assaulted her is inconsistent with the content of the texts read as a whole. In some of the later texts Mr. C.P. talks about him and Ms E.H. moving in together. These texts are quite inconsistent with the assertion that he was trying to protect Ms E.H. when he admitted sexually assaulting her. Texts suggesting that Ms E.H. and Mr. C.P. move in together would surely have had the opposite effect on Ms E.H.'s boyfriend.

[61] For these reasons, I reject Mr. C.P.'s explanation of the meaning of the text messages and why he sent them. I find that the texts are admissions that he knew that Ms E.H. did not consent to the sexual contact, and are apologies for wrongdoing. I reject the defence argument that the texts are consistent with them having had a good interaction the day before. No reasonable reader would read these text messages as indicative of a good interaction between Ms E.H. and Mr. C.P. the previous day.

[62] I turn next to my second concern with the defendant's evidence, the inconsistencies in his evidence, in particular between his statement to police and his trial evidence. Counsel for Mr. C.P. conceded that his statement to police was voluntary. Some of the alleged inconsistencies argued by Crown counsel are minor, and as a result I do not accept all of the alleged inconsistencies argued by Crown counsel as significant. But some of the inconsistencies are significant, which I will now review.

[63] In his evidence at trial Mr. C.P. testified that during the sexual encounter, Ms E.H. said something about being concerned that her boyfriend was coming. Mr. C.P. testified that he said to her, "we'll hear his car if he pulls up." However, when describing this part of the interaction to police, he said that after the complainant said she was concerned that D. was coming, he just backed away, and he did not tell police he said anything. In addition, in his trial evidence, Mr. C.P. testified that when he went out to put the patio bricks in his car, he saw a car which he thought was Ms E.H.'s boyfriend's car, and he went back to the garage and he told Ms E.H. that he had seen her boyfriend's car. However, in his statement to police, when Mr. C.P. described taking the patio bricks out to his car, he did not say that he saw a car he believed to be Ms E.H.'s boyfriend's, and he did not say that he told Ms E.H. he saw a car he believed to be her boyfriend's.

[64] In his evidence at trial, Mr. C.P. testified that when he said to Ms E.H., "sometimes you just want to be hugged, right", she responded, "But, you can't be my man, can you." In his statement to police regarding this part of the interaction, Mr. C.P. said that Ms E.H.'s response to his statement, "sometimes you just want to be hugged, right" was, "I know, right".

[65] In his evidence at trial, in relation to the portion of the incident where Mr. C.P. nibbled at or bit Ms E.H.'s vagina over her clothes, he testified that she pulled his head towards her groin and rubbed his head. In his statement to police, he did not say that she pulled his head towards her groin, but only said that she rubbed his head.

[66] In his evidence at trial, in relation to the sexual statements he said the complainant made, Mr. C.P. testified that she said she likes to have sex every day. In his statement to police, he told police that she said she likes to have sex once a week.

[67] Each of these inconsistencies, if standing along, might not necessarily be seen as a major inconsistency. But taken together, they show a pattern of inconsistencies which I find troubling. I find it troubling because of the number of inconsistencies, but also because together they show a pattern of the defendant ramping up his version of events from the time of his statement to police to his trial evidence in order to try and show the complainant as more interested in sex generally, and more interested in sex with him specifically in his trial evidence than in his police statement. Similarly, the inconsistencies outlined at paragraph 63 above show a significant expansion of his story in regard to the complainant's alleged concern about her boyfriend finding them together, an important aspect of the defendant's evidence of a purported motive for the complainant to lie about whether she consented to the sexual contact.

[68] I have considered the defendant's evidence that his statement to police was given late at night, and he was stressed and tired. Counsel agreed that I could take the times on the statement to police as accurate (the statement was filed only for the purpose of allowed me to following the cross-examination on alleged prior inconsistent statements more easily). The statement was taken between approximately 2:50 and 4:50 a.m. on the night of September 28/29, 2014. So it was late at night. I accept that the defendant found it stressful that he had just been arrested and taken into custody in relation to an allegation of sexual assault. However, the number of inconsistencies, and the nature of those inconsistencies leads me to reject that they are a result of the defendant being tired and stressed.

[69] I have not canvassed all of the alleged inconsistencies in the defendant's evidence raised by Crown counsel. Some of the alleged inconsistencies relied on by Crown counsel were not inconsistencies between things the defendant said to police, and things he said at trial, but rather were things he omitted to tell police in his statement to police. An example of this is that Crown counsel's argument that Mr. C.P. never said before his trial evidence that the Sunday texts were incomplete. Crown has not shown on record before the court that Mr. C.P. was even asked about the texts in his police interview. I have not relied on matters which fall in the category of things Mr. C.P. omitted to tell police in his statement, as opposed to inconsistencies, because doing so would improperly slide from using inconsistencies in the defendant's evidence to assess credibility to using his pre-trial silence on an issue to assess credibility. The latter is not permissible: see R. v. C.G., 2016 ONCA 316. However, where Mr. C.P. told police about a particular aspect of the interaction with Ms E.H., and his evidence at trial includes information or statements that were not in his statement to police about that particular aspect of the interaction, that is not an issue of pre-trial silence, but of inconsistency.

[70] My third concern about the defendant's evidence is that, in the context of the text messages and the inconsistencies I have outlined, I find the defendant's evidence of the alleged sexual encounter unbelievable. On his evidence, the complainant, who he had just met that day, and whose daughter attended the same school as his daughter, had intimate sexual conversation with this man she had just met, and consented to a sexual encounter in her attached garage, during the day while her 14 year old daughter was in the house, within hours of having met him. Although I find this story extremely unlikely, that in itself would not be enough to reject it. It does happen that people engage in sexual encounters after knowing each other only briefly. But when the unlikely circumstances of the defendant's version of events are combined with the text messages and the inconsistencies in the defendant's evidence that I have outlined, it is simply unbelievable. I find that I do not believe the defendant's evidence and I am not left in a reasonable doubt by it.

[71] I do not I accept the defence argument that the level of detail in the defendant's evidence speaks to his credibility. I do not think this follows, particularly given the inconsistencies I have outlined. However, I do find that the extent of the personal information that the defendant was aware of about Ms E.H. (which was clear as it was put to Ms E.H. in cross-examination by defence counsel) does corroborate the defendant's evidence that there was some level of personal conversation between the defendant and Ms E.H. which preceded the physical contact. In particular, I refer to things such that Ms E.H. grew up in Scarborough, that she had been a promising track athlete, that she got pregnant and it ended her track career, that she regretted moving to Brampton, that her mother had lived with her for a time and cramped her style. I will address the issue of the personal conversation further in relation to Ms E.H.'s evidence.

[72] But although I accept that there was personal conversation between the defendant and Ms E.H., I do not accept his evidence about the alleged intimate sexual conversation between them.

[73] The sexual statements that Mr. C.P. testified the complainant made prior to the incident raise both legal and factual issues. Mr. C.P. testified that in the lead up to the sexual encounter, Ms E.H. made various statements about how much she liked sex, that she was a "nympho in high school", and that she liked to have sex every day. Ms E.H. denied making these statements.

[74] In terms of legal issues raised by this evidence, I admitted this evidence from Mr. C.P. and allowed cross-examination of Ms E.H. on the alleged statements without a s. 276 voir dire on the basis that the statements were admitted as part of Mr. C.P.'s narrative of events of the incident at issue, and not for the truth of their contents, and thus were not evidence of prior sexual conduct. My ruling limited the use of the evidence and was clear that the alleged statements by Ms E.H. were not admissible for the truth of their contents. And I note that allowing the statements for the truth of their contents, for example to draw the inference that she was more likely to have consented because she really enjoyed sex, would be impermissible under s. 276 of the Criminal Code, because such use would rely on a prohibited inference about the complainant's alleged sexual character.

[75] In terms of the factual issues raised by this evidence, I do not believe the defendant's evidence that Ms E.H. made these sexual statements. As noted above, I accept the defendant's evidence that Ms E.H. told him various personal things about herself. But the sexual statements that the defendant attributed to Ms E.H. are of a different and much more intimate nature. I do not believe that Ms E.H., having just met the defendant, had such intimate sexual conversation with him.

[76] Rather, I find that the defendant's assertions about the alleged sexual statements by Ms E.H. are part of a misguided attempt by him to suggest that Ms E.H. was the type of person who would engage in this type of sexual conversation with someone she had just met, and was also the type of person who would engage in the type of sexual encounter the defendant claims occurred with someone she just met. That sort of reasoning is not open to the court in light of s. 276. I note that in making these comments, I do not intend to impugn counsel's motives or conduct. When a defendant chooses to testify, counsel works with the version of events that his client tells him. As noted above, I ruled that the statements about sex attributed to Ms E.H. by Mr. C.P. were properly admissible since they were allegedly made during the incident at issue in the charges.

[77] Crown counsel argued that I should draw an adverse inference against the defendant's credibility because, she argued, portions of the defendant's version of events were not put to the complainant in cross-examination. I reject this argument by Crown counsel, and my findings in relation to the defendant's credibility do not rely on the Browne v. Dunn argument. First, Crown counsel was wrong regarding some of the things she argued were not put to the complainant in cross-examination. To give one example, it was put to the complainant in cross-examination that there were texts missing from Saturday (see transcript of February 5, 2016, pp. 2-6). But beyond that, I find that the defence did sufficiently put its version of events to the complainant in cross-examination. It was clear from the cross-examination of the complainant that the defence was challenging her evidence of non-consent. And I find that defence counsel put to the complainant in great detail the defendant's version of events. Based on the decision of the Ontario Court of Appeal in R. v. Quansah, [2015] ONCA 237, I find that the defence did sufficiently raise its version of events in the cross-examination of the complainant, and there is no basis to draw an adverse inference. Defence counsel is not obliged to put every little detail of the defence version of events to a witness: see Quansah, at para. 81.

[78] For all of these reasons, I do not believe Mr. C.P.'s evidence and it does not leave me with a reasonable doubt. I turn then to whether the Crown has proven the charges beyond a reasonable doubt under the third branch of the W.D. analysis.

The Evidence of Ms E.H.

[79] There were many positive aspects of Ms E.H.'s evidence from a credibility perspective. She was consistent in her evidence about the nature of the alleged sexual assault. Although she said she did not remember the order of events, she clearly articulated the various acts that occurred. Ms E.H. remained consistent in her evidence in relation to the alleged sexual assault through a rigorous cross-examination.

[80] But her evidence was not without its flaws. In her examination in chief, Ms E.H. gave very limited evidence about the personal nature of the conversations with the defendant that day (I refer to information about her life, not to the alleged sexual statements, which the complainant denied throughout her evidence); although she did agree that there was personal conversation.

[81] However, in cross-examination when defence counsel asked her about a number of specific areas of personal conversation they had, it appeared that the personal conversation was more extensive than it seemed from Ms E.H.'s examination in chief. She agreed in cross-examination that their discussion included: the fact that she grew up in Scarborough; that she had a brother named Anthony; that she used to run track; that she complained that the property of her home is large and the lawn is hard to upkeep; that Mr. C.P. told her he had looked at her house prior to her buying it and he commented on the rooms being small; that he said her lawn was kind of crazy; that she said it takes a long time to mow her lawn with an electric mower; that when she arrived at her street after leaving the school and Mr. C.P. arrived there first he raised his fist out the window as if to say he had beaten her in a race; that she called him on his cell phone after to complain that someone had cut her off; that he told her about problems he was having in his marriage; that he told her about an ex-girlfriend who had died; that he complained about his sex life with his wife; that he complained about black women in general; that he asked her if she was involved in a relationship, and she said she was; that she told him that her boyfriend was separated but still living in the same house as his wife; that she told him that her boyfriend was supposed to put his house up for sale in August, but had not done so; that she complained about men; and that she told him that her mother used to live with her.

[82] I find that when Ms E.H. was cross-examined about each of these areas, she freely admitted discussing these things, to the extent she had a specific memory. At times she said she did not remember some of the specific areas of discussion suggested to her, but she agreed that it was possible they discussed certain things.

[83] The defence argues that Ms E.H. was intentionally minimizing the personal nature of her interaction with Ms. C.P. prior to the alleged sexual assault, in order make it sound less like the type of interaction that would lead up to a consensual sexual encounter. He argues that this reflects adversely on her credibility.

[84] I have considered this argument. I do not accept it. Although Ms E.H. did not go into great detail in her examination in chief about her conversation with the defendant, she did say in her examination in chief that she discussed personal matters with the defendant, and gave a few examples, but said she did not recall all of the conversation. Further, as I have noted, she was forthcoming in cross-examination when various other areas of discussion were suggested to her. Considering all of her evidence, I accept her evidence that she did not remember all of the details of what she discussed with the defendant. I reject the argument that in her evidence she was trying to minimize the nature of the personal discussions they had.

[85] Similarly, in Ms E.H.'s examination in chief, it was left somewhat unclear how long the defendant was at her home. In terms of the events she described that occurred, her evidence during her examination in chief left the impression that it was a relatively short time that the defendant was at her house. However, I do note that in her examination in chief she testified that she had gone to pick up her daughter at the school in the early afternoon, that Mr. C.P. came to her house less than an hour after that, and that he left her house around 5:30 p.m., which suggests a longer time.

[86] In cross-examination, it became clear that prior to the alleged sexual assault, the defendant had been at the complainant's home for a number of hours. Ms E.H. agreed that he had come to her house within about 10 minutes after 1:36 p.m. She estimated that they were in her backyard together for an hour and a half.

[87] Defence counsel argued that Ms E.H. did not satisfactorily account for what occurred during the time the defendant was at her house, and argued that I should find her not to be credible for this reason.

[88] I do not accept this argument. Ms E.H. was open about the fact that she did not recall all of her conversation with Mr. C.P., and that she did not recall the order in which the various acts alleged to constitute the sexual assault occurred. She was not with the defendant the entire time he was at her home. For much of the time that he was in the front mowing the front lawn she was not with him, although she went out to give him a glass of water. Her narrative of the events at her home is coherent and logical. She was consistent in her description of the various acts constituting the sexual assault. I do not find that her inability to account for every minute of the time tells against her credibility.

[89] Counsel for Mr. C.P. argued that the fact that Ms E.H. went into the garage immediately prior to the alleged sexual assault when the defendant was in there tells against her credibility, because in his view there was no reason for her to go into the garage, unless she was interested in Mr. C.P.. I reject this argument. Ms E.H. repeatedly and consistently testified that the reason she went into the garage was because the defendant had gone in to put something in there, tools or grass clippings, and he was taking a long time, so she wanted to see why. I find this explanation logical and believable.

[90] I have considered the defence argument that Ms E.H. had a motive to fabricate the sexual assault in order to protect her relationship with Mr. D.M., which would be damaged if she admitted a consensual sexual encounter with Mr. C.P.. Considering all of the evidence in this case, including Ms E.H.'s evidence, Mr. D.M.'s evidence about the state she was in when he came to her house after she called him, and the text messages, I reject the argument that Ms E.H. fabricated the sexual assault in order to cover up for Mr. D.M. that she had had a consensual sexual interaction with Mr. C.P..

[91] I reject the defence argument that the fact that Ms E.H. did not call out for help is inconsistent with her evidence that the defendant sexually assaulted her. I also reject the defence argument that her not running reflects adversely on her credibility. People can react in different ways to a sexual assault. A complainant in a sexual assault trial is not automatically unbelievable because she did not cry out or raise a "hue and cry". In saying this, I am not suggesting that a trier of fact should uncritically accept any evidence a complainant gives about why she reacted the way she did without any scrutiny. A trier of fact must scrutinize the evidence and the complainant's reaction in the context of all of the evidence. In this case, I agree with Crown counsel that Ms E.H.'s explanation for not crying out or running was believable and reasonable. She said she did not yell or call out because she was afraid, felt frozen, and felt she would be safest if she tried to calm defendant down. This is believable and reasonable. She also said she did not want her daughter to see them. This is also reasonable and believable. Not that every person would make the same choice. But I find that the evidence that she did not cry out or run does not impact adversely on her credibility.

[92] For all of these reasons, I find that I believe Ms E.H.'s evidence. I turn now to considering the rest of the evidence led by the Crown and whether the whole of the Crown's case convinces me beyond a reasonable doubt that Mr. C.P. sexually assaulted Ms E.H..

The Evidence of Mr. D.M.

[93] I believe the evidence of Mr. D.M.. He was consistent in his evidence throughout a thorough cross-examination. Mr. D.M. clearly explained what it was about Ms E.H.'s demeanour that seemed unlike her, and why it was out of character and indicated to him that she was in a significant level of fear and distress. I note as well that Mr. D.M. testified that he and Ms E.H. ended their romantic relationship in 2015. Although this does not completely remove the possibility that he would be motivated to tailor his evidence to favour Ms E.H., it significantly reduces that concern. In any event, I find that he was a credible witness.

[94] I have considered the defence position that, in essence, Ms E.H. was putting on a show of fear and distress for Mr. D.M. to cover up having had a consensual sexual encounter with the defendant. In the context of all of the evidence, I reject this argument.

[95] Mr. D.M.'s evidence provides some confirmation for Ms E.H.'s evidence in light of her level of emotional distress when she called him and he came to her home within a short time after the alleged assault.

The Text Messages

[96] As noted above, a series of text messages between Ms E.H. and Mr. C.P. the day after the alleged sexual assault was entered into evidence. Crown counsel relies on Mr. C.P.'s statements in the text messages as admissions that he committed a sexual assault on Ms E.H..

[97] I note that because the text messages are an exchange between Ms E.H. and Mr. C.P., they contain statements by both Ms E.H. and Mr. C.P.. Ms E.H.'s statements in the texts are only admissible as context to understand the meaning of Mr. C.P.'s statements in the texts. For example, when she alleges in one of the texts that he just started rubbing himself on her and being sexual, and that she did not consent to him touching her, and he responds (in part): "True you didn't give me any invitation…. I am extremely sorry if I disappointed you or made you feel violated please forgive…. Now that I reflect I was really selfish", as the trier of fact I can use her texts as context to draw inferences about the meaning of his response. However, her texts cannot be used as prior consistent statements (indeed, neither can the statements that Mr. D.M. testified about where he said Ms E.H. described that had happened with Mr. C.P.). Her texts are not admissible for the truth of their contents, or to bolster her credibility: R. v. Warren, 2016 ONCA 104 at paras. 11-13. But they are admissible as context to assess meaning of Mr. C.P.'s apologies in the text messages.

[98] I find that the text messages are compelling evidence of admissions by Mr. C.P. that he knew that Ms E.H. had not consented to the sexual contact. Although there are portions of the texts where Mr. C.P. says he "had no bad intentions", the picture that emerges from the texts as a whole is that Mr. C.P. was sexually interested in Ms E.H., and on the previous day allowed his sexual interest to govern his acts and he did not heed her contrary wish, which she expressed, not to have sexual contact.

[99] As outlined above, I reject Mr. C.P.'s evidence that he sent the texts as part of a plan to protect Ms E.H. because he believed her boyfriend was reading the texts.

[100] In addition to finding that the text messages constitute admissions on the part of Mr. C.P. that he committed a sexual assault on Ms E.H., I find that the text messages show a state of mind on the part of Mr. C.P. the day after the sexual assault which supports the complainant's evidence that he forced a sexual encounter on her despite her indicating that she did not want it. In the text messages Mr. C.P. is unwilling to accept Ms E.H.'s stated desire that he not contact her. And also in the text messages, one day after having met Ms E.H., and in the face of her clear statements in the text messages that she did not consent to the sexual contact the previous day, Mr. C.P. is texting her pushing the idea of a relationship, and in the future moving in together. In the circumstances, the content of these texts seems like a fantasy and unrealistic on the part of Mr. C.P.. This aspect of the texts is also consistent with Mr. C.P. pushing what he wanted, and disregarding Ms E.H.'s stated desire not to have contact.

[101] I have considered the defence argument and the evidence of Mr. C.P. that there are some texts missing from the ones entered into evidence. There is some support for this assertion besides the defendant's own evidence. In cross-examination, Ms E.H. agreed that texts were sent between her and the defendant on Saturday, the day of the alleged sexual assault, and that there were no texts from Saturday in the package of texts entered into evidence. She testified that she could not recall what those texts said, and she denied deleting them. She also said that some texts may be missing from Sunday, but denied she had deleted anything. Although the defendant testified that the texts from Saturday evening were to the effect of him checking to see if she was OK, and her saying that everything was fine, the defendant was unable to shed light on the content of the possibly missing texts from Sunday. Nor did the defendant suggest that texts were missing in relation to the texts where he made statements which I have found are admissions that he knew the sexual contact was not consensual. On the record before me, I accept that there may be texts missing from the package of texts filed in evidence. But I find that the texts in evidence are sufficiently complete and reliable for me to draw the inference that Mr. C.P. made statements in the text messages which constitute admissions that he committed a sexual assault on Ms E.H..

[102] As I have outlined above, I do not believe the defendant's evidence, and it does not leave me with a reasonable doubt. I find that the Crown's evidence persuades me beyond a reasonable doubt of the defendant's guilt on the third branch of the W.D. analysis. As I have outlined above, I believe Ms E.H.'s evidence. Her evidence was not without its flaws, as I have addressed above. But her evidence must be considered in the context of all of the evidence. I find that the text messages sent by Mr. C.P., when read in the context of the texts of Ms E.H. that he was responding to, are admissions that he knew that Ms E.H. did not consent to the sexual contact. I find that Mr. D.M.'s evidence as to the state of fear that Ms E.H. was in when he attended at her house also provides some confirmation for her evidence. I find that the evidence in the Crown case taken together persuades me beyond a reasonable doubt that Mr. C.P. is guilty of having committed a sexual assault against Ms E.H..

The Unlawful Confinement Count

[103] Neither Crown counsel nor defence counsel made distinct submissions on the unlawful confinement count. I find that the Crown has not proven the intent required for unlawful confinement beyond a reasonable doubt. A conviction for unlawful confinement requires a finding that for any significant period of time, the complainant was physically restrained contrary to her wishes so that she could not move about from place to place, and a finding that the accused intended to confine the complainant: R. v. K.M., [2016] ONCA 347 at para. 18; R. v. Gratton (1985), 18 C.C.C. (3d) 462 at pp. 473-75 (ONCA). The Crown must prove an intent on the part of the defendant to confine the complainant.

[104] I accept Ms E.H.'s evidence based on the credibility findings I have already outlined. But I find that her evidence is not sufficient to persuade me beyond a reasonable doubt that the defendant intended to confine Ms E.H.. I reject the defence argument that the fact that the complainant did not run should lead me not to find the unlawful confinement charge proven. But I note that, for example, the defendant's action in bending down and tying the complainant's shoe seems inconsistent with an intent to forcibly confine her, since it would have given her an opportunity to run.

[105] Further, as noted above, I have found that the text messages contain clear admissions by the defendant that he knew that Ms E.H. did not consent to the sexual contact. The text messages in this regard are an important factor in my finding that the sexual assault count is proven beyond a reasonable doubt. However, the texts do not contain anything that amounts to an admission of unlawful confinement.

[106] In some cases the act alleged to constitute confinement will be clear enough that the intention can be inferred from the act alone. I do not find that the evidence in this case allows me to find beyond a reasonable doubt that the defendant intended to confine the complainant.

[107] For these reasons I find that the Crown has not proven the unlawful confinement count beyond a reasonable doubt.

Conclusion

[108] For all of these reasons, I find that the Crown has proven the charge of sexual assault beyond a reasonable doubt. I find that the Crown has not proven the charge of unlawful confinement beyond a reasonable doubt. I find Mr. C.P. guilty of sexual assault. I find Mr. C.P. not guilty of unlawful confinement, and that count is dismissed.

Released: June 29, 2016

Signed: Justice J. M. Copeland