WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

ONTARIO COURT OF JUSTICE

CITATION: R. v. D.R., 2018 ONCJ 518

DATE: 2018·07·25

BETWEEN:

Her Majesty the Queen

— and —

D.R.

Reasons for Judgment at Trial

D. Slessor ............................................................................................. Counsel for the Crown

K. Mitchel-Gill ................................................................................ Counsel for the Defendant

Felix J.:

I. Introduction. 4

II. Analysis. 5

A. Introduction. 5

1. Credibility and the Criminal Burden of Proof 6

2. Motive and the Context of the Relationship. 7

3. Credibility. 7

4. The complainant’s demeanor at trial 8

5. Reliability as distinct from credibility. 8

6. Historical allegations. 9

7. Objective corroboration. 10

8. Delayed disclosure. 10

9. The defendant’s flat denial 11

III. The Allegations. 11

A. Count 1 – Assault: April, 2005 to December, 2005. 12

1. Dresser Incidents. 12

2. Pulled Down Stairs. 12

3. Bear hug. 13

B. Counts 5 & 6 – Sexual Assaults: March 2006 to June 2006. 13

C. Count 7 – Sexual Assault: September 25, 2017. 13

D. Count 9 – Sexual Assault: February to March 2013. 14

E. Count 10 – Forcible Confinement: January 2004 to July 2017. 15

I. Introduction

[1] The defendant is charged with a number of criminal allegations of assault, sexual assault, and forcible confinement arising out of a domestic relationship with his former spouse – S.W. The defendant is alleged to have committed a series of criminal offences covering a timeframe commencing in 2004 and ending in 2017. A multitude of criminal allegations were captured in an Information alleging assault, sexual assault and forcible conferment.

[2] There were two witnesses at trial – the complainant, and the defendant. The complainant testified in support of the specific criminal acts committed by the defendant. Her testimony satisfied the essential elements of each offence. The defendant testified and denied culpability.

[3] The central issue at trial was the credibility and reliability of the complainant and defendant. The lion share of the allegations concerned historical events many years in the past. There were no independent witnesses to the events. There are no photographs of injuries. There are no medical records. There were no admissions made by the defendant. In short, there is no independent evidence to corroborate either version of the events.

[4] Overall, notwithstanding the thorough submissions of defence counsel, I found the complainant to be a credible witness on some of the allegations. A finding that the complainant was credible means that I believed her evidence on some of the allegations. She presented as a sincere and truthful witness in my view. I believe that she has been through much in the relationship with the defendant. Certainly her characterization of the relationship as one where the defendant was controlling and abusive resonates with me.

[5] Simple belief in the complainant’s credibility does not end the analysis in a criminal trial. The analysis does not end with an endorsement of the complainant’s credibility. I am obligated to assess the totality of the evidence with the criminal burden of proof in mind. Were the test a balance of probabilities, the civil standard, I would find in favour of the complainant’s evidence on some of the allegations. But this is a criminal trial. The prosecution must prove the case to the criminal standard. That is, proof beyond a reasonable doubt. Any doubt must be resolved in favour of the defendant

[6] As I have indicated, I found the complainant to be a credible witness. I believe she did her best to tell the truth, she was honest, she was sincere. But, there were two overarching factors that eroded the foundation for a criminal conviction: (1) reliability concerns permeating the complainant’s testimony; and (2) the approach mandated by W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)]. I will explain in this judgment why notwithstanding the sincere effort by the complainant to relate the details of what happened to her, reliability concerns impacted the strength of the complainant’s evidence. I will explain how the criminal burden of proof and the principles pronounced in W.D. require an acquittal.

[7] The defendant is found not guilty.

II. Analysis

A. Introduction

[8] This is a case purely dependent on the assessment of credibility and the application of the criminal burden of proof. I have a positive obligation to explain how the credibility and reliability issues were resolved: R. v. Vuradin, 2013 SCC 38, at para. 11; and R. v. Dinardo, 2008 SCC 24, at para. 26. With this task in mind, I will not labour with minute detail about each of the allegations except as is necessary to address the larger credibility determinations. As indicated at the outset, the complainant’s evidence adequately addressed the elements of each offence. The defendant denied the allegations. I will focus on the task of explaining my analysis of credibility and reliability rather than simply repeating the testimony at trial.

[9] Prior to addressing my findings on each criminal allegation I will address the following factors:

1. Credibility and the criminal burden of proof;

2. Motive and the context of the relationship;

3. Credibility;

4. The complainant’s demeanor at trial;

5. Reliability as distinct from credibility;

6. Historical allegations;

7. Objective corroboration;

8. Delayed disclosure; and,

9. The defendant’s flat denial.

1. Credibility and the Criminal Burden of Proof

[10] I have considered a number of all-embracing principles relating to credibility and the criminal burden of proof.

[11] First, as in every criminal prosecution the Crown must prove the defendant’s guilt beyond a reasonable doubt. If there is a reasonable doubt it must be resolved in favour of the defendant.

[12] Second, I am guided by W.(D). where the Court endorsed the following analysis concerning credibility and the criminal burden of proof: (1) if you believe the evidence of the accused, obviously you must acquit; (2) if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; (3) even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the accused’s guilt.

[13] Third, a court may believe all, none or some of a witness’ evidence: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; and R. v. Abdallah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.), at paras. 4 – 5.

[14] Fourth, a court is entitled to accept parts of a witness’ evidence, reject other parts, and determine the appropriate weight accorded to different parts of the evidence: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44

[15] Fifth, a determination of guilt or innocence must not, devolve into a mere credibility contest between two witnesses or a choice between competing prosecution and defence evidence. This approach would negatively impact the presumption of innocence and the criminal standard of proof beyond a reasonable doubt: W.(D.), at p. 409; and Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp.85-87.

[16] Sixth, having regard to the principles in W.D., mere disbelief of the accused’s evidence does not equate to criminal liability. It is an error to move directly from mere disbelief of the accused’s evidence to a positive finding of guilt: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); and R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

[17] Finally, after considering the totality of the evidence at trial, if I am unable to decide whom to believe, this state of mind translates into a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, at para. 12; and R. v. Austin, 2006 CanLII 39077 (ON CA), [2006] O.J. No 4660 (C.A.), at para. 20.

2. Motive and the Context of the Relationship

[18] The complainant and the defendant were in a relationship for over 13 years. The relationship was tumultuous and there were various difficulties. The couple attempted to work on the difficulties. Ultimately the relationship ended from the perspective of the complainant in July, 2017.

[19] On October 3, 2017 the complainant reported the allegations to the police. She explained to the police that she had attended a courthouse to obtain an emergency custody order with respect to the children. While it was not filed as an exhibit, I am aware that the complainant had a prepared written list of allegations with her when she attended the police station. This list was used by her to assist with providing a statement to the police.

[20] The defense position is that the complainant has fabricated the allegations. The allegations are simply untrue. The precise motive for this position is unclear, but I am mindful that the defence need not prove a motive for fabrication. I am also mindful that the absence of evidence supporting a motive to fabricate does not mean there is, in fact, no motive to fabricate: R. v. L.L., 2009 ONCA 413, at para 44.

3. Credibility

[21] It is quite evident that the complainant has been through challenging circumstances in her relationship with the defendant. I found the complainant to be articulate and careful as a witness. She answered questions directly and completely to the best of her ability. She would pause, consider the question, and provide a thoughtful answer to questions asked. I believe that she did her best to articulate the circumstances around the events leading to criminal charges. Testifying in court about these events was very trying for the complainant. That being said, there were significant reliability concerns with her evidence.

[22] I generally accept the prosecution’s submissions about the complainant’s credibility. There was ample opportunity for her to amplify the specifics of the allegations or fabricate answers rather than admit she had no memory of a portion of the incident. In addition, while the complainant provided additional detail at trial some of that information was adverse in interest (e.g., kicking the defendant in the face). Finally, I accept that the complainant was a young woman at the outset of the relationship and she was covering 14 years of her life. These were some of the considerations I relied upon in finding that the complainant was largely credible.

[23] The defendant was clear and articulate. He presented as a confident and direct witness. He also answered questions completely and thoroughly. He did not seek to evade questions and was able to articulate his disagreement with concepts put to him in cross-examination. At the end of his testimony, there was no basis to reject the evidence of the defendant.

[24] Where the evidence of the defendant is not rejected, the only sanctioned basis to support criminal liability would be a “considered and reasoned acceptance beyond a reasonable doubt” of the complainant’s evidence pursuant to the analysis in R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No 4749 (C.A.). The reliability concerns I have with the complainant’s evidence does not support such an approach.

4. The complainant’s demeanor at trial

[25] I acknowledge the observations made by defence counsel about the demeanor of the complainant. At times she fluidly exhibited a range of emotions and presentations. While I am entitled to examine demeanor I must be cautious in drawing conclusions from demeanor alone. I cannot say that this presentation made the complainant incredible or credible. I have not given this factor significant weight.

5. Reliability as distinct from credibility

[26] In R. v. C. (H), 2009 ONCA 56, at para. 41, Watt J. explained the difference between credibility and reliability:

41 Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at 526.

[27] I find there to be significant reliability concerns with the complainant’s evidence. Her ability to access her memory and communicate her memories was substantially impaired for several reasons.

[28] First of all, I recognize that this may be largely as a result of the historical nature of many of the allegations. The finer details understandably escaped the complainant on all of the historical allegations.

[29] Second, the complainant at times articulated impediments to her ability to answer questions. She described accessible “pictures” of events. She used phrases such as “memory blocking” or other terminology suggestive of the suppression of memories. Her subjective view was that the suppression of memories was related to post traumatic stress disorder and trauma. This expressed phenomena was also tied by the complainant in some way to insights developed in therapy and counseling. The reliability concerns around the complainant’s evidence peaked when she revealed the process by which she accessed memories in relation to count 9.

[30] Third, I do not have a good understanding of the interaction between the blocked memories and the ability of the complainant to recall events. I acknowledge that expert opinion evidence is not admissible for the singular purpose of showing the witness is telling the truth or for general purpose oath-helping. But there is no expert opinion evidence to assist me with evaluating the memory-related phenomena articulated by the complainant: (See for example R. v. MacIsaac, 2017 ONCA 172, at paras. 59-60). “Memory-blocking” and its impact on the reliability of the complainant’s memory is not susceptible to the doctrine of judicial notice. I am unable to rely on the expressed therapeutic rationales articulated by the complainant. So I must evaluate this concept based on my experience and common sense. I do not completely understand the mechanism of “memory blocking” described by the complainant. But I believe the complainant was describing the cumulative impact of traumatic episodes on her memory. I also know that a significant period of time has elapsed since the majority of these incidents occurred. So perhaps memory blocking is a mechanism for dealing with getting on with life and coping with these past events. Whatever the actual mechanism, this is at core a serious reliability concern.

[31] Finally, in addition to the reliability concerns associated with accessing memory, the complainant testified that particularly concerning the assault allegations (around being dragged down the stairs) she had memories available and accessible to her that she did not communicate to the police: (See 3:13 PM Digital Record of Proceedings, July 5 2018. )

[32] In sum, the complainant’s memory appeared to be highly compartmentalized and subject to blockages because of the traumatic experiences and other reasons provided by her therapist. The mechanism by which she suppressed and accessed memory was not clear to me. This translated into a significant reliability concern, notwithstanding my general view that she was largely credible.

6. Historical allegations

[33] Leaving aside the reliability issues associated with the complainant in particular, objectively speaking, there are the reliability considerations that are always present when dealing with historical allegations. Most of the allegations date from many years ago. Most reasonable persons would acknowledge that as time passes, memories fade.

[34] It is unclear to me whether the passage of time alone impacted the reliability of the complainant’s evidence given the comingling the “memory blocking” issue and the passage of time since the events occurred. At times the complainant simply could not provide detail around a particular allegation. Whether this was because of memory blocking or the passage of time is not apparent to me. Whatever the cause, it remains a reliability concern.

7. Objective corroboration

[35] There is no legal requirement for corroboration of a complainant in a criminal case. In this case, I have found the complainant to be largely credible. Absent the reliability concerns her evidence is worthy of believe on many of the allegations. But, where serious reliability concerns are present corroboration can assist.

[36] There is no corroborative record of injury or medical information to assist. There are no objective witnesses. No photos of injuries. No medical records supportive of injury. No other record documenting the events. While the complainant referenced certain emails sent to the defendant’s mother, I expect the prosecution position was that those emails were inadmissible absent a clear allegation of recent fabrication.

8. Delayed disclosure

[37] There is no question that the majority of the allegations were not disclosed at the time of the event. There is no evidence that she reported the incidents to the police. There is no evidence that she reported the incidents to anyone. I can obviously see that years have passed in relation to the majority of the allegations and for a significant portion of that time the complainant continued to have contact with the defendant.

[38] The complainant provided a multi-faceted rationale for the delayed disclosure. I largely accept those explanations even though I have some reservations about her testimony asserting that the defendant controlled her telephone every time she went to call 911 given this aspect was not explained to the police until October 7th. I must also acknowledge that her testimony that her father, a police officer, counseling that she should never call the police concerned me.

[39] I do not require expert evidence to appreciate the cycle of domestic violence and abuse. The impact on the self-esteem of complainants. The choices that complainant’s make. Any criminal lawyer or criminal judge is well aware of the fact that complainants delay disclosure often. At times the delayed disclosure is not a logical decision. I do not need expert opinion evidence to understand the dynamic of a domestic relationship – a dynamic that is an everyday occurrence in these criminal courts. There is no archetypical domestic violence complainant. There is no model or standard that a complainant must meet. There is no rulebook I can consult to detect a supposedly normal or appropriate complainant reaction. Everyone deals with challenging circumstances in different ways.

[40] Having regard to the complainant’s evidence and my credibility findings I am quite certain that the dynamic of the relationship between the complainant and the defendant was controlling and abusive. I am not disturbed by the complainant’s delayed disclosure in this case. That being said, delayed disclosure had some impact on the reliability assessment of the complainant.

9. The defendant’s flat denial

[41] The defendant’s testimonial response to the majority of the allegations is a clear and simple denial. This does not give the Court an extensive opportunity to critically examine the defence position due to the lack of detail provided. On the other hand, given the historical nature of the majority of the allegations and the sparse detail provided, there is little more that the defendant can address.

[42] If the defendant’s position is that an event alleged to have occurred ten years ago did not happen, his evidence may also suffer from reliability concerns associated with the passage of time. He may not be able to recruit fine detail about events from many years ago. This does not make him incredible either.

[43] I note that both the complainant and the defendant were able to provide much more detail about the more recent allegations. The defendant’s evidence must be analysed with a view to all the evidence in the case and the case to meet. Where there are sparse details concerning historical events that he disputes, what more can he say? The defendant cannot be criticized for providing a flat denial to the majority of the allegations. With these central credibility issues in mind I will now turn to each allegation and explain why I acquitted the defendant notwithstanding my finding that the complainant was credible.

III. The Allegations

A. Count 1 – Assault: April, 2005 to December, 2005

[44] The Crown articulated this count as covering several allegations of assault that I have labeled “dresser incidents”; “pulled down stairs”; and “Choking against the dresser”; and “Bear hug”.

1. Dresser Incidents

[45] The complainant described being pushed against a dresser in the bedroom and being choked with both hands. The defendant flatly denied this incident. It is unclear to me if there was one such incident or several.

[46] There are reliability concerns associated with the fact that little of the surrounding circumstances were articulated by the complainant. For example, she could not remember what precipitated the assault, what happened after, whether anyone else was home, and whether she received any injury. The complainant testified that she did not think the matter was significant enough to go to the hospital. She testified that if there were no broken bones the matter was not significant enough to go to the hospital. She did not contact the police.

2. Pulled Down Stairs

[47] The complainant testified that the defendant chased her and bodily pulled her down the stairs. The defendant flatly denied any such event occurred.

[48] Once again, there are reliability concerns given the lack of detail provided by the complainant concerning this incident. She could not specify when this occurred during the day or even the time of year. She could not recall what precipitated the assault. If there was an argument she could not recall why. She did not seek medical attention or contact the police. She could not remember if she had injuries associated with being pulled down 14 stairs.

[49] At trial, additional credibility and reliability issues surfaced. For the first time the complainant described two circumstances where she was pulled down the stairs – not one. This is notwithstanding that her prepared written list of incidents referenced only one circumstance where she was dragged down the stairs. The second incident was alleged to be at a different address. The complainant also added details at trial that she had not told the police. She testified that she was on the couch at first and was chased by the defendant as she tried to flee. She also maintained that she had kicked the defendant in the face while he was dragging her down the stairs. The complainant testified that talking to her therapist assisted her with providing more details concerning these incidents. Finally, she speculated that the assault caused the early delivery of her second child.

3. Bear hug

[50] The complainant testified to an incident where the defendant assaulted her by “bear-hugging” her to the floor. The complainant testified that she bit the defendant breaking the skin on his arm. She testified that the defendant took photographs of the injury she caused and told her that if she ever reported him to the police they would not believe her because he had photos of injuries she caused. The defendant testified that this simply never occurred. He never bear-hugged the complainant. She never bit him. She never injured him. He did not take pictures. He did not threaten her with the use of the photos.

[51] There are reliability concerns associated with the complainant’s evidence. This recount was not communicated to the police by the complainant in her statement. It arose at trial for the first time as a fresh allegation. The complainant has been cross-examined on portions of her statement. I have considered only those portions adopted in evidence. Those portions give me a good sense of the expanse of the statement. The complainant had ample opportunity to provide this allegation to the police.

B. Counts 5 & 6 – Sexual Assaults: March 2006 to June 2006

[52] The complainant provided details of two sexual assaults within weeks of each other represented by counts 5 and 6.

[53] The complainant testified that the defendant removed her pants and engaged in forced sexual intercourse. The complainant was unable to explain the clothing she was wearing, the circumstances leading up to the sexual assault, any words uttered by the defendant, whether she communicated to the defendant during the incident, or whether she was able to fight back. The complainant testified that the two crimes, separated by weeks, were quite similar. The only prominent change was the positioning of furniture in the bedroom. The defendant denied any circumstance of forced sexual intercourse in their relationship.

[54] I have reliability concerns with the complainant’s evidence. She testified at trial for the first time that after the sexual assault the defendant patted her head or stroked her hair and told her that she liked it. This had a deleterious impact on her self-worth. This is a significant detail in a historical allegation particularly because of the way that it made the complainant feel. It was not part of her statement to the police. Her trial testimony was inconsistent with her police statement. In her police statement her position was that the defendant confessed to the crime and apologized. Whether this conflict is resolved by the fact that there were two sexual assaults alleged is unclear to me.

C. Count 7 – Sexual Assault: September 25, 2017

[55] The complainant testified that during a car ride after having a discussion about the relationship the defendant reached out and grabbed her breast for approximately one second while driving. The defendant testified to similar circumstances but for the assertion that he did not touch her breast – he touched her shoulder during a heated discussion to gain her attention.

[56] Both the complainant’s and the defendant’s version of events leading up to this allegation are similar. Furthermore, both witnesses provided great detail perhaps given the recency of the event as compared with the other allegations. After dropping off a child, the two went to the complainant’s store to discuss their relationship. There was a discussion within the store during which the complainant alleged that the defendant tried to touch her arm. This was a charged conversation associated with the demise of the relationship and the revelation that the complainant would no longer participate in counseling with the defendant. The defendant described being emotionally upset during the return car ride. The complainant denies this was so. The complainant could not recall if she told the defendant he was pathetic and to stop crying but she acknowledged there was emotional upset.

[57] The complainant acknowledged that the defendant had an irritating habit of non-sexual physical touching to regain the attention of a person who he was speaking with and that it would get worse during an argument. Given the context of the circumstances, I do not reject the defence position that he tapped the complainant on the shoulder rather than her breast. I agree with the defence submission that the circumstances around the return car ride and the testimonial content of the defendant’s perspective could provoke a state of doubt that the touching occurred. Even if I was to find that the touching occurred it would be difficult to completely discount the possibility that it was accidental (i.e. devoid of criminal mens rea). In the end, I cannot decide as between the version of events provided by the complainant and the version of events provided by the defendant. Doctrinally, this is reasonable doubt: S. (J.H.), at para. 12.

D. Count 9 – Sexual Assault: February to March 2013

[58] The complainant testified that the defendant gained unauthorized entry to her residence and sexually assaulted her by digital penetration. The defendant denied this occurrence.

[59] I have serious reliability concerns about the complainant’s evidence on this count. The reliability concerns provoked credibility concerns as well. The complainant testified in examination in chief about this event in a straightforward manner. During cross-examination, the manner in which this incident was disclosed became clear. When the complainant attended the police station on October 3rd she did not communicate this allegation to the police. The complainant testified that she had no accessible memory of the specific allegation. She testified that she buried these memories and speculated that this was her way of coping with the circumstances. She was not able to put into words the mechanism by which the memories were buried or how they might be accessed. After leaving the police station the complainant had no accessible memory of this allegation until she communicated with her brother in law by text (see the exhibit). The text communication makes clear that the complaint relied upon her brother-in-law to furnish detail and refresh her memory of this allegation. She thereafter reported the matter to the police in a subsequent interview.

[60] These bald circumstances alone objectively admit of obvious reliability concerns. In addition, it was concerning that the disclosure circumstances were not illuminated during direct examination, but cross-examination.

[61] It is clear that the words expressed by the complainant were accessed thanks to the text message from her brother in law. The physicality of the event was represented by a “picture” in her mind that she could access. During direct examination the complainant seamlessly blended both her accessible memory of the physical part of the incident and the things that were said during the event notwithstanding she was dependent on her brother in law for the verbal content. In the text message itself, the complainant explained to her brother in law that she had blocked out the memory of the incident. At the time she sent the text message she did not possess a memory of the incident except that something “bad” had occurred. Yet, at some earlier time period the complainant had presumably provided the details of the incident to her brother in law. It was only during cross-examination that these details became clear.

[62] The complainant’s testimonial account differed to a degree from the refreshed memory content in the text message from her brother in law. More concerning with respect to reliability is the complainant’s testimony that she could not recall if she verbally told her brother in law that she was “pretty much raped”.

[63] The complainant flip-flopped on whether her children were witnesses to the sexual assault. Notwithstanding her lack of certainty she did not address the potential that her children witnessed the terrible incident. Given the experiences described by the complainant and the struggles with PTSD, trauma, and mental health concerns one would expect her to be highly sensitive to vicarious trauma. Finally, in testifying on this incident the complainant relied upon an email interaction with the defendant’s mother about this incident and indicated that she had provided the email to the police. Given the approach of the defence during cross-examination, I am reasonably confident that if the Crown had such emails they would have been utilized at trial. The evidence of the complainant concerning this count demonstrated the peak of the reliability concerns and negatively impacted her credibility.

E. Count 10 – Forcible Confinement: January 2004 to July 2017

[64] This broad count refers to numerous allegations involving the defendant confining the complainant to a room or a bathroom at various residences throughout their relationship. There is some overlap between this count and the allegations of assault captured by count 1. The complainant explained that this would occur particularly during arguments and could last as long as hours. The complainant had no recollection of whether she disclosed this to anyone prior to speaking to the police.

[65] As this allegation is somewhat interwoven with the assault allegations represented by count 1 the same reliability considerations are at play. In addition, one of the incidents was associated with a claim by the complainant that a door jamb was damaged and repaired by her brother in law. This corroborative evidence was not available at trial. The defendant testified that there were times in their relationship where the complainant no longer wanted to argue and he did. He conceded that at times he might have followed her around the house or into a bathroom. He never confined her by using physical force, locking the door, or any other means.

[66] I have a reasonable doubt.

Released: July 25, 2018

Signed: “Justice M.S. Felix”