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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

ONTARIO COURT OF JUSTICE

DATE: 2018-06-27

COURT FILE NO.: Halton 1079/14, 1314/14 and 1605/15

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

K.G.

Before: Justice Stephen D. Brown

Heard on: April 4, 5, 6, 7, 10, 11, 2016, September 7, 2016, April 4, 6, 10, 26, 28, 2017, May 23, 2017, June 5, 6, 7, 8, 12, 19, 20, 21, 22, 28, 2017, July 13, 19, 20, 2017, August 21, September 5, 6, 2017, October 31, 2017, November 1, 14, 15, 2017, December 21, 2017, and April 13, 2018 to be remanded for judgment

Reasons for Judgment released on: June 27, 2018

Counsel:

• Maureen McGuigan — counsel for the Provincial Crown
• Cathy Hoffman, Mark Miller — counsel for the Federal Crown
• Gary Grill and Elizabeth Bingham — counsel for the accused K.G.

Table of Contents

• Introduction
• Issues
• Evidence at Trial
  • A. Evidence of S.G.
  • B. Cross-examination of S.G.
  • C. Evidence of H.C. – Direct Examination
  • D. Ms. Hoffman's Examination in-Chief of H.C.
  • E. Cross-Examination of H.C. by Mr. Grill
  • F. Evidence of N.C., D.N. and D.P.
  • G. Evidence of K.G.
  • H. Evidence of C.S.
• ANALYSIS
  • a) The Expert Evidence
  • b) Expert Evidence - Law
  • c) Expert Opinion of Det. Cst. Fallis
  • d) Evidence of Detective Constable Fallis
  • e) The Expert Evidence re: BDSM
  • Evidence of Andrea Zanin
• The CDSA Charges
• CONCLUSION

BROWN J.:

Introduction

[1] This case began before me on April 4, 2016 as a preliminary hearing. After April 7th, 2016 events occurred which need not be detailed in this judgment but that caused the change of counsel at the time from Mr. Forte to Mr. Grill and Ms. Bingham. Ultimately the change in counsel necessitated a considerable delay in the proceedings as the disclosure in this case was voluminous. A further huge amount of disclosure was given to the defence a few weeks before the scheduled commencement of the proceedings which required a further adjournment of some trial days to enable Mr. Grill to review the disclosure.

[2] Mr. G.'s new counsel re-elected trial before me with the evidence heard at the preliminary hearing being applied to the trial proper. On September 7th, 2016 the re-election was formally done and the matter had been further pre-tried by the initial pre-trial judge, Justice Baldwin. Evidence commenced again on April 10th 2017 and continued until the conclusion of the trial. Mr. G., who had been out of custody at the commencement of the preliminary hearing, had been arrested on breach charges and was detained in custody in December 2016 and remained in custody until I released him on his own recognizance on December 21, 2017 when I gave a short oral judgment dismissing the Provincial charges against him and reserving my decision on the Federal charges.

[3] K.G. is charged with the following Criminal Code offences: Utter Threats x 4, Assault, Assault with a Weapon x 3, Assault Cause Bodily Harm, Forcible Confinement, Sexual Assault with a Weapon, Mischief, Possession of a Weapon for a Dangerous Purpose, Make Child Pornography and Voyeurism. He is also charged with Trafficking Cocaine, Production of Marihuana, Possession of Marihuana for the purpose of Trafficking and Possession of Cocaine under the Controlled Drugs and Substances Act ("CDSA").

[4] This trial hinges upon the credibility of the complainant, S.G., H.C. and C.S. and, of course, the defendant who testified in his defence and denied the allegations.

[5] On April 20, 2014, Mr. G. was arrested on the CDSA charges after S.G. called 911 and reported that he had a "grow-op" on his property.

[6] S.G. provided police with three statements after her 911 call; on April 20, April 29 and May 1, 2014. In these statements, S.G. alleged domestic abuse by Mr. G. S.G. also alleged in her statements that Mr. G. took a video of herself and H.C. engaged in sexual activity, without their consent, and that Mr. G. gave H.C. cocaine.

[7] As a result of these allegations, Mr. G. was re-arrested on May 2, 2014, and charged with the Criminal Code offences.

[8] S.G.'s three statements are before the Court in their entirety and form part of her testimony.

[9] In essence, S.G.'s evidence is that Mr. G. was in complete control of her life and dictated the nature of their sexual relationship.

Issues

[10] Credibility of the witnesses who testified before me at the trial is important to the outcome of this case.

[11] The qualification and weight given to expert evidence called in this proceeding has to be dealt with appropriately.

[12] The hearsay evidence of John Paul Bester will have to be examined and a determination made as to whether it is necessary and whether it can reach a threshold reliability to justify its introduction in this trial, and the weight that should be attached to it should it be found to be admissible.

Evidence at Trial

A. Evidence of S.G.

[13] The Crown's first witness was Ms. S.G. S.G. was immediately furnished with transcripts of her video statements given to police and the videos were played. In fact, the entire first day of these proceedings was dedicated to video playback while S.G. followed along in the typed transcripts.

[14] The following day, the Federal Prosecutor, Ms. Hoffman, commenced with calling P.C. Jason Caron to deal with the Federal charges against Mr. G.

[15] S.G. continued her testimony on April 6, 2016. The playing of her video statement to police constituted a significant part of the day. Documents, diagrams, examination and extraction reports, photographs, Facebook messages and a USB thumb drive were all entered as exhibits.

[16] S.G. agreed that the contents of the first video statement of April 20th, 2014, which was made Exhibit 1(a) where she was affirmed to tell the truth, was a true statement.

[17] The second video statement dated April 29th, 2014 which was made Exhibit 2(a) was under affirmation and also true.

[18] Similarly, the third video statement dated May 1st, 2014, Exhibit 3(a), was under affirmation and also true.

[19] S.G. is a high school graduate and is hoping to attend college in the near future. She has a daughter who was born on September 17th, 2010.

[20] She is "almost a 100 percent sure" she met the accused, Mr. G., on September 2nd, 2008. She was not enrolled in school at that time, but did go back in 2015 to finish high school. She would say she was maybe in grade 10 when she met the accused.

[21] The environment that she found herself in while with Mr. G. was not conducive to continuing school, so she did not attend school at that point in time. When she did go back, it was a school in Milton but she is not sure which one.

[22] From the time she met Mr. G. until the time the relationship between them ended, S.G. was not employed and had no independent income. She admitted to using non-prescription drugs prior to meeting him in the form of weed and "I dabbled in cocaine. I also smoked crack cocaine." She also had done ecstasy. All of these drugs were in her life prior to Mr. G.

[23] After she met the accused, she had used MDMA, ecstasy and she believes she did cocaine as well, but "not significantly." She agreed that she continued using marihuana when she knew Mr. G.

[24] S.G.'s child is currently living with her "basically full-time" and sees the accused every other weekend. (Subsequently Mr. G. was arrested on a charge of breaching his recognizance in November 2016 and was held in custody until I gave my oral reasons for judgment on December 21, 2017 concerning the Provincial charges and released him from custody on his own recognizance).

[25] S.G. had breast augmentation surgery twice, once before she had her daughter and once after. Both surgeries occurred when she was in a relationship with Mr. G. and he paid for those procedures.

[26] S.G. agreed that she called the police on April 20, 2014 and that she called from outside the home at the end of the driveway. She has only re-attended at that home once to collect her personal belongings since that time.

[27] Ms. McGuigan then narrowed in on April of 2014 with reference to the threats S.G. alleged Mr. G. made about her personally and also members of her family. S.G.'s independent memory of the accused's behaviour was a little "foggy" since it was two years ago that this had happened.

[28] Aside from certain physical events that S.G. had already testified about through her video statement, she recalled as well that she was punched in the back a couple of times by the accused while she was pregnant and going up the stairs. She does not recall why it happened but indicated that "there were certain incidents like that all the time...."

[29] She went on further to describe other physical events that flowed out in a comprehensive manner that were not mentioned in her video statement already:

Q. You said that he was physical all the time and that it was really hard to give honest answers and honest dates because there's so much of it and so many times it's happened. Are there any other - you've given us certain physical events already, other than those are there any other physical categories of physical actions by him on you that you can describe, even though I know you can't give dates, any other types of behaviours?

A. I remember when I was pregnant and I was going up the stairs he actually punched me in the back a couple of times. I can't give you exact details on why it happened but I remember just - there were certain incidents like that all the time and sometimes - like there was another time when I was in the kitchen and I was on the ground by the cupboards and he would punch me repeatedly just because I pissed him off somehow and that's I guess how he dealt with his anger, he would come after me, so....

Q. Okay.

A. And there was also plate throwing, different things would get broken because he'd be pissed off and shit like that, like all the time.

Q. Okay. Any other sort of physical acts by him appreciating you might not be able to give a date for any other stuff you can tell us other than what's specifically in the videos?

A. There was - there was other times that I've been in the dungeon downstairs tied up and I couldn't do anything about it. There was an incident where I was on the bed and I was tied up. I believe my hands and my legs were tied up. There was a pillow underneath me and like to prop up my, my butt and there was times like that that would happen that I didn't give consent to do anything and I'd be forced to be tied down and spanked with straps or whips. I'm not sure which ones at the moment but it was always something, so....

Q. Okay. You talked about climbing the stairs when you were pregnant and do you remember how pregnant you were, how far along you were?

A. I was pretty far along, I would say probably around the seven month mark.

Q. Had anything led up to that?

A. It was always different arguments. Always me saying something he doesn't like or doesn't agree with. I didn't really have my own opinion 'cause I wasn't allowed to, so it was always like some argument where I've said something that he doesn't like or said something disrespectful and he would - I believe I was - I was either in the basement or going up to the second level where the bedrooms were. I don't remember what set of stairs but I remember him coming after me and I kind of fell onto the stairs 'cause he - I don't know if he pushed me or if I just fell 'cause I was running up the stairs fast to get away from him and he actually punched me and I believe in the back, and I was like, "Are you - like are you 'f'ing retarded? Like I'm pregnant, you don't do that and I don't care, like..." I said, "You don't do that anyways but like I'm pregnant. Are you retarded, that's your daughter?"

Q. Did you know at that point you were having a girl?

A. I - yeah, I believe so.

[30] Ms. McGuigan asked about further incidents of choking other than what she had provided on her video statement and S.G. indeed said that that happened multiple times, but she could not provide specific details.

[31] The topic then moved to the non-consensual video of S.G. and H.C. where H.C. was "going down on" S.G. When asked by Ms. McGuigan to clarify what she meant by that she said, "I just mean oral sex." She believes both her and H.C. were unclothed at the time and that it was only herself, H.C. and Mr. G. who were present. H.C. received a freeze frame photo of the iPhone video taken by Mr. G., but she did not receive the video. When he tried to show S.G. the video, she "told him I didn't want to see it."

[32] She testified that in March of 2014 at 10464 S. Line there were assault and mischief events that involved the accused damaging her clothing and assaulting her. He poured a can of Red Bull on her clothing and damaged some of it by ripping the straps off things and breaking hangers. During this incident, she screamed, "Please don't wreck my shit, that's all I have." When asked to describe further what she mean by that, she indicated:

A. I was just, like I was literally like, when he started ripping at it I'd come at him and he kind of like - like I was like trying to block my clothes and he'd push me out of the way and then he came at me over on the other side of the bed...

Q. Right.

A. ...in the master bedroom. And I basically - like I got pushed down to the floor and I was screaming at him, "Please, please don't do that, like that's all I have, that's my clothes." And I, I love my clothes...

Q. Okay.

A. ...so I didn't want him to wreck them and I was screaming pretty loud.

Q. Did you have any other personal possession of any value other than the clothes at that point in your life?

A. I had some jewellery that he had gotten me. Like I had a necklace, I had two rings, a diamond bracelet; stuff of that nature.

[33] S.G. was asked if she had done anything physical to the accused when he was doing this to her clothing, and she said, "I might have blocked whatever he was doing trying to grab my clothes but I never pushed him or anything."

[34] Ms. McGuigan turned to the Taser that resembled an iPhone as mentioned by S.G. She said that Mr. G. had chased her around the house on S. Line with it multiple times but quite a while before their relationship breakdown on April 20, 2014.

[35] S.G. said that Mr. G. threatened her about a week or two before their trip to Panama that he would charter a boat, take her out to the ocean and get rid of her. This was said at the S. Line residence as well. She testified that when he said this, his voice was raised and he was angry. They were in a verbal argument when this occurred. The fight was over "the girl that we were going to take away with us." When the accused made this threat, S.G. indicated that she was scared and she believed he would carry through with the threat.

[36] In 2013 the accused threatened to get rid of her body in a swamp area or in the country and let the elements take care of her. When saying this, he was angry and aggressive.

[37] The Crown then turned to 2010 and referenced what she called "the Robinson fire." Mr. G. was not permitted contact with S.G. at this time because of an outstanding assault charge.

[38] S.G. began living in Brantford in November of 2010 and stayed there a year before moving back in November of 2011.

[39] While living in Brantford the accused was paying for her apartment and they were talking about her moving back in with him, "and we were gonna go on a trip to Mexico, and everything would be fine, and he would change." She indicated that the accused "basically" convinced her to get back together with him and "we'd be happy together, and it sounded good, so I decided to go."

[40] S.G. admitted that she was uncooperative with police in that instance because "we had talked prior to him being arrested, I guess, and he had told me not to go through with it, don't give them the video statement..." She abided by the accused's wishes and never got subpoenaed. She continued to have contact and conversation with Mr. G., as well as intimate relations, while the matter was still before the Court. Mr. G. also provided S.G. with a cell phone that he used to communicate with her.

[41] S.G. indicated that Mr. G. advised her that the November 2010 charges were stayed, but her belief was that there was a trial date set "'cause he said that things were getting – gonna get taken care of and we were gonna be able to move in together."

[42] She agreed she wrote a handwritten recantation letter because she wanted to be back together with him. She does not recall if the accused was with her when she wrote it, but she believed he saw it before she sent it to make sure 'it was okay.'

[43] S.G. said the letter she wrote was not truthful, but she wrote it because she wanted to move back in with him and she thought everything was going to be okay. She wrote the letter because Mr. G. advised her that "if you write a letter to the court that it will influence their decision and they might make a, a decision in our favour, I guess."

[44] When she made that earlier call to police, it was as a result of her being choked by Mr. G. She indicated that:

It was again an argument. I don't know if it was just me talking back I guess and just pissing him off. I don't – I'm not a 100 percent sure now of the reason…I just – I still remember it.

That was an incident that happened at the S. Line address as well.

[45] When asked about anything further she remembers about the incident, S.G. said:

I just remember him basically chasing me around the house and then up to the bedroom and the choking. I'm not sure if it happened more than once. I believe I passed out but - and then I got up and I ran out, and I was scared; like I thought he was going to kill me.

[46] S.G. was asked about her communications with Mr. G. prior to declining to give a statement:

Q. You made reference to speaking with him before you decided not to give a video.

A. Yes.

Q. Tell us how that would have happened?

A. I was at the police station and I was waiting to go in to do a video statement and I ended up using the payphone. There was like the, the doors in between at the Milton Police Station and they had a payphone there. And I ended up calling him on the cellphone and telling him "I'm at the police station, I don't know what to do. What should I do? Like give me advice. They want me to go in and make a video statement."

Q. Right.

A. He told me at that time, "Not to make the video statement, not to give them anything, tell them that you lied; that you're not going to through with the charges", and then, yeah.

Q. Okay. You described what he had done to you and calling the police; why did you call him at that point for advice?

A. Because I regretted my decision calling the police and I didn't want to go back down to Brantford with my parents and I - I guess I figured that things could be okay after that and I was dependent on him like for everything, so I was scared to go down and have nothing.

[47] When S.G. threatened to tell the police about the "Robinson fire," the accused indicated that he "would put me in the foundation of the house that he was going to build and yeah, get rid of my body like that. Nobody would be able to find me because I would be cemented in." He said this more than once over the phone. Again, he was angry, agitated and loud.

[48] In the November of 2013 dungeon room table incident, S.G. said the accused rubbed her vagina with his hand. She was telling him to stop and that she did not like it. He would have touched her more than once.

[49] The accused then texted her a very graphic and disturbing photograph of her buttocks after this incident with the caption "'I hope you learned your lesson' or something along those lines." This photograph is Exhibit 11(a). The actual text where he is alleged to have said "I hope that you learned your lesson" was never put into evidence at the trial despite extensive analysis of both S.G.'s and Mr. G.'s cell phones and iMac home computer. She did not think the photograph was being taken at the time because "I was too upset." She received this photograph by text when she was at the house because she was always at the house.

[50] When she saw the photograph, she indicated as follows:

A. I was pretty shook. Like, I, I didn't realize it was that, that bad, and then when you see it after it happens it's like – it's a reminder to, to stay in line basically.

Q. A reminder to stay in line.

A. Yeah.

[51] Ms. McGuigan then referred to Exhibits 19(a) through (d) which were taken from the same event as Exhibit 11. S.G. indicated she did not want photographs of her taken on that date. She was not sure if she knew photographs were being taken at that point because "I, I would have been focused more on everything that was happening to me rather than if he was taking pictures…." Needless to say, she would not have given permission to Mr. G. to take those pictures if she had known.

[52] Exhibit 19(a) is a photograph which depicted bleeding on the body of S.G. and she indicated that she probably would not have been aware that she was bleeding at the time "but I guarantee you he would have something about it because he would have liked that…That would have probably turned him on."

[53] S.G. indicated the marks on her buttocks would have lasted "a while. It would have probably have been a good, I would say three to four weeks before they were completely gone." Mr. G., however, did not want to leave marks on her body when they went to Panama.

[54] When this event occurred, she was in a significant amount of physical pain. "My ass was swollen and bruised everywhere, and even my legs." She indicated the bruising got worse after the picture and then it began to fade. She experienced pain sitting for possibly a week, maybe longer. She probably applied Polysporin to the injuries herself, but Mr. G. did not assist with that or administer any first aid to assist her.

[55] In describing the purpose of the table in the shop to Detective Constable Werner, Ms. McGuigan needed clarification for what S.G. meant by the terminology "slash/whip privates." She clarified as follows:

A. It would be by one of the whips that he had, either snake ship or – that's usually the one that he would use and he would have me in that position and obviously I'm exposed and he would ship in between my legs, like….

Q. Okay. And the implement that he's using is it stiff or flexible?

A. It's kind of both, like it's flexible on the end. It's, it's a whip, it's….

Q. Okay. And when you say "privates" what part of your body gets contacted in the manner that you've described?

A. It would be like the inside of my thighs, my vagina, anywhere in that area, depending on how accurate.

[56] Ms. McGuigan then referred to Exhibit 19(e) which was a photograph of a strap that Mr. G. used to hold the victim down by her lower back on the table. The following exchange occurred in regards to this particular photograph:

Q. In that particular photograph do you have a recollection of the events in it…

A. Yes.

Q. …specifically?

A. Yes.

Q. Okay. And do you recall if you knew the photograph was being taken?

A. I don't believe I did, no.

Q. Okay. Do you recall if you were asked if the photo could be taken?

A. No, definitely not.

[57] She had never seen that particular photograph before preparing for court. She was asked about the specific events that would have lead up to that photograph being taken and she explained:

I don't know if – it would have been I was tied to the table. I was – I was tied up by my, my hands and around my wrists and my, my legs to the table. I don't know if the strap was already across my back or if I had broke it from moving. I don't know what event that exactly was, it looks like it was before.

[58] Ms. McGuigan then turned to the handwritten letter of S.G. which was made Exhibit 27 in this proceeding. She believed she wrote it while staying at her parents' house after the police were called for the previous incident. She indicated that she probably would have discussed the letter with Mr. G. but not with her parents because they would not have agreed to it.

[59] When asked about other occurrences in the shop that were punishment, which totalled approximately 15 times, it was always just the accused and the victim. In the November 2013 incident, S.G. indicated that the force that Mr. G. used was "very strong force, like basically as hard as he could."

[60] Having to show S.G. again the graphic Exhibit 19(e), a bamboo cane and snake whip are visible next to her on the table. She knew what implement the accused was using on her because "It's the sensation, I basically – I know."

[61] The video was played for the Court at this time. I asked for the audio to be turned down because of its very nature, but then it had to be turned up again because there was a minor disagreement between Crown and defence about the audible words. When Mr. G. said on the video, "Do you want me to continue?" it was agreed that the victim nodded her head.

[62] S.G. said she would have known that the video was being taken, but was not sure if she was aware that photographs were being taken as well. It was only herself and the accused present in the room at the time.

[63] S.G. was asked more about the photographs that were taken:

Q. Do you have any recollection of whether or not you were asked if the photos could be taken?

A. I – he never asked me if photos could be taken. He just did it and I knew afterwards or I don't know if I knew during.

Q. Okay. Do you have any recollection if he asked you if a photo could be taken on that occasion?

A. He didn't ask, no.

Q. And did you have a belief about why photos or videos might have been taken during that occurrence?

A. Because he enjoys watching again afterwards.

Q. And what's the base of your belief that he enjoys watching these items?

A. Because he takes them and he does, he watches them again and again.

Q. Have you seen that?

A. I just know that he watches them. Why else would he take a video?

Q. Okay. Has he told you he watches them?

A. Yes, he's told me he watches them.

Q. Okay. Did he – has he told you why he watches them?

A. He gets off on that.

[64] She would also see videos on the accused's computer when she was at his house.

[65] When asked about the event depicted in the last three photos and video just shown to her where she nodded, S.G. indicated:

A. It's depicted that I said "yes" but it was only because I was made to say "yes" or else I would have got it worse.

Q. What do you mean "made to say 'yes'?

A. I was made to say "yes" by him. He would hit me, hit me, and then he would video it and get me to say "yes" so that he couldn't get in trouble for it. And then if I didn't say "yes" he would do something more severe. And if I did say "yes" he would continue with what we agreed to and it would be over with, so I was forced to say "yes" or else it would have continued and gotten worse….

[66] On that specific occasion, S.G. believed it was the strap that Mr. G. used to make the marks on her body, but then "it looked maybe like a whip as well because there the smaller welts." The bruises lasted a good week from this particular event and she does not recall if there was any blood from that.

[67] She was then shown photographic Exhibit 23 which was a picture of a white rope. S.G. indicated:

A. I believe that's probably on the bench and those were marks from a big rubber – he said it was a strap but I'm – it was some kind of a rubber, like off of a, I don't even know, maybe an old, like tire or something.

Q. And what location would the bench have been?

A. That's in the dungeon.

[68] S.G. was asked about other incidents in the shop that she had not said in her statement and she answered as follows:

That's basically the same, same thing every single time and it would have to be I'd have to go down, I would strip naked. I would get into position on that or – it was the table usually and I would get tied up. First he'd bind my hands and then he would tie me to the front of the table. I don't know where, underneath, but somehow he would tie me up so I couldn't move, stretched over top of the table and it would be basically the same thing. Things would change, like it depended on what I did. More severe would be whippings. Less severe would be the strap even though it was all the same to me.

[69] When questioned on the sort of things that she did that would warrant punishment, S.G. explained that if she had somehow thwarted a threesome and Mr. G. did not 'get off', then she would get punished. She would also get punished if she talked back to him or if she did not want to do something.

[70] In describing the punishment tools that would be used on her by Mr. G., S.G. described a bull whip, "where it's the basically the most extreme one you could use and it cuts every single time." She had experienced the bull whip multiple times. She also spoke of whips, straps and bamboo.

[71] In the November incident, Ms. McGuigan made reference to the accused touching S.G.'s vagina in an act of punishment and she indicated that it happened other times as well in the dungeon. He would make her say she liked what he was doing even if she said no. He touched her vagina most times when she got punished.

[72] Mr. Forte (who was Mr. G.'s counsel at the commencement of the preliminary hearing but was later removed as counsel of record for reasons that are not germane to this judgment) asked for clarification of the term "touch you" and the following exchange took place between Ms. McGuigan and the witness:

Q. When you were saying "touch you" again in the shop, were you speaking of what happened in November 2013 or something else?

A. That time and then also other times that it's happened.

Q. And those other times he touched you what was he doing, was it the same or different?

A. It was basically the same thing or he'd grab my ass or one incident in the dungeon he actually made me give him oral sex why [sic] I was tied to the bench and crying, and I could hardly breathe anyways. And he made it so I couldn't breathe more.

Q. Okay. And in the shop anything other than vaginal touching?

A. It was – no, it was usually just minimal down there.

[73] With each stroke of the strap, S.G. had to say "I'm sorry, sir" and then hug Mr. G. and apologize. She indicated the apology was not sincere, but she felt she had to say it because she did not want to be tied back down and punished.

[74] Mr. G. would make S.G. write out lists of punishments. He would tell her what to write, but he did not always follow the list and would do whatever he wanted. If she wrote a punishment down like "ten with the strap", even if she could not take it any longer and begged him to stop, she says the accused would continue to punish her anyway because she wrote it down.

[75] The door to the dungeon was always locked. It locked from the inside and the outside. Mr. G. would lock the door from the inside when they were in the room and her clothes would simply be put "wherever."

[76] Ms. McGuigan then produced for S.G. several pictures of the dungeon and she identified a table, an armoire, a padded wooden bench and a rack on the wall. More photographs depicted the basement area which consisted of the dungeon, a bathroom and a child's playroom.

[77] Upon the conclusion of Ms. McGuigan's examination in-Chief, S.G. indicated that she wished to speak to the Victim Witness representative, so the court recessed for her to do that.

[78] Upon resuming, Ms. McGuigan indicated that an "urgent" police investigation had now begun after S.G. brought something to VWAP's attention and the matter was, therefore, adjourned. It was after this that Mr. Forte was removed as counsel of record, subsequently replaced by Mr. Grill and Ms. Bingham.

[79] That adjournment of the preliminary inquiry lead to a lengthy delay in these proceedings as the defendant required considerable time to retain new counsel and for Mr. Grill and his assistants to get up to speed and cover an enormous amount of disclosure. This matter did not commence again until the defence re-elected trial before me and evidence continued on April 10, 2017, over one year since the last day of evidence on April 6, 2016.

[80] Ms. McGuigan continued her examination in-Chief of S.G. by filing and having her identify certain photographs, including photos of the table in the shop that was used, from her evidence, as a table that she was strapped to located in a separate building some distance from the house and used for BDSM activities that were "punishment" for various infractions that she had committed in the accused's eyes, such as ruining threesomes or some other behaviour that displeased him.

[81] Ms. McGuigan also took the witness to her police statements where she talked about her relationship with H.C.

[82] S.G. insisted that it was the defendant who, using her Facebook account that was on her cell phone as well as on his phone, discovered H.C. and sent the initial communications to her which lead to the relationship developing. Essentially he was posing as her to entice H.C. into a relationship. She stated:

Q. So the officer, Officer Henderson....

MR. GRILL: But I forgot the page.

MS. MCGUIGAN: Page seven.

MR. GRILL: Thank you.

MS. MCGUIGAN: Q. ...asked you the following: "How long has H.C. been around for? How long has she been in your relationship?" and your answer was, "Two months." He asked, "How old is H.C.?" and you answered:

She is 16, but when I'm, um, he has my Facebook on his phone as well because he doesn't let me have anything by myself. He has to know exactly what I am doing so he had my Facebook. So he ended up adding this girl randomly from Brampton and this was this H.C. girl. He started initiating the conversation with he – and blah blah blah like oh you should come out. We can take you out. We can go shopping, blah blah blah. She liked it and she said okay, let's go out. She thought she was talking to me the whole time and she also lied to me about her age. She told me she was 17 turning 18 and she later on told me she was 16.

Q. When you said "she later on told me she was 16", how much later on?

A. I honestly don't remember exactly. I'm, I'm not sure.

Q. Do you recall how the conversation came about in terms of her telling you she was 16?

A. No.

[83] She is not precise on when they learned that H.C. was only 16 years of age, thinking that it was a couple of months before her 911 call, but when they did find out the defendant said to her:

A. I just remember him saying, like, things like, like, after we found out what she – how old she was, he was saying, "Oh, we can't take any pictures or anything like that because I could get in trouble for that kind of stuff" and then, yeah, he just said we had to be careful, I guess.

Q. And was there a conversation about her actual age at that time?

A. Yeah.

Q. And what was her age believed to be then? What was the, the number that was mentioned if one was mentioned?

A. I believe it was when she, we found out she was 16.

[84] S.G. was referred to Exhibits 12(a) and (b) which are copies of Facebook print-outs showing communication between S.G. and H.C. and she stated that, although she may have sent a couple of comments, for the most part the messages were composed by the defendant posing as her.

[85] When asked about the Taser, S.G. indicated that she thought it was kept in a cupboard in the kitchen but she was not sure.

[86] She stated that the time she made her 911 call to the police she said that she "wanted to get out of there. I figured if I tried to leave he would do something".

[87] She stated that she was panicked and really scared when she made the 911 call.

[88] Ms. Hoffman then commenced her examination in-Chief of S.G. and established that the marihuana grow-op was located in the back of the shop and that she had last seen it a couple of weeks prior to calling 911. She described it as being behind a wall that looked just like cupboards but had a locked door concealed that lead into the area used for growing marihuana. She said that at the time she last saw it there were many plants that were about 3 feet high and that the defendant's workers, Kevin and Dave L. were bagging the marihuana. She said that she did not see them doing it, but they had done it before.

[89] She stated that in the past the defendant had helped bag the marihuana from previous grow-ops and that she assisted as well.

[90] She said that about 10 people would have known about the grown-op and that the defendant sold the marihuana to Adam S. for about $2,300 per pound.

[91] She said that the defendant had a padlock on the wooden cupboard and that the door for entry had a number code on it which she knew. Sometimes the defendant would bring up a pound of marihuana for her own use and put it in the freezer or the cupboard.

[92] She stated that she smoked marihuana with H.C. frequently and that she also did cocaine with her that was stored in a safe in the bedroom. She said that the defendant would sometimes get it and give it to H.C. and her, even bringing it to them in the dungeon.

[93] When he would set out a line of cocaine for them to do he would expect that H.C. would let him spank her. He would say that he would give her a little line so that he could then spank her afterwards.

[94] She identified Exhibit 4(k) as being a photo of cocaine from the police search which she says was found in the defendant's closet.

[95] On the second occasion that she and H.C. used cocaine it was done in the kitchen and she does not remember the defendant being present.

B. Cross-examination of S.G.

[96] Mr. Grill stated at the outset of his superb cross-examination just exactly what he was going to do. He said:

Q. Hello, S.G.

A. Hi.

Q. My name is Gary Grill. I'm representing Mr. G. I'm going to be asking you some questions.

A. Okay.

Q. Are you feeling okay today?

A. Yeah.

Q. Okay. We're probably going to be a couple of days in questioning and I will be as quick as I can. Of course the same thing applies, you need water or you need a break, just let us know.

A. Okay.

Q. And I'll, and I'll tell you quite generally right now where I will be going with my cross-examination so you know what's coming.

A. Okay.

Q. Is that fair?

A. Yes.

Q. Okay. I'm going to be through the course of my cross-examination suggesting you've lied about quite a bit and a number of things and I'll take them each one by one and suggest to you why you're lying and where I think you're contradicted.

A. Okay. That's fine.

[97] He then proceeded to do as he had promised.

[98] Mr. Grill commenced with the charge of assault that was laid against the defendant on November 10, 2010, which was about six weeks after the birth of her daughter. She had alleged that the defendant had choked her to the point where she passed out and that she was hit numerous times by him.

[99] When asked about what preceded the fight that night she stated:

A. I don't specifically remember what that fight was about, but it was probably me not doing something he wanted me to do which it generally was, whether it be he wanted me to do something with a girl and I wrecked it for him or things along those lines. It was always along the exact same lines or I'd be arguing with him and talking back to him and then he'd get mad because he couldn't handle it.

[100] Mr. Grill then read from the transcript of her call to 911 that night where she stated to the 911 operator that she had been fighting since one o'clock that afternoon. She said to the dispatcher:

Dispatcher #1: So what happened exactly?

S.G.: We've been fighting since like one o'clock cause I wanted to get a babysitter to go out tonight and he didn't want to and he was telling me that I was being unreasonable and I haven't been out in a while. And he's like no, we don't need a babysitter but his, his sister already volunteered to take her overnight. He's like no I don't want a babysitter overnight it was just stupid and I'm just like well why not it doesn't make any sense and I'm just kept bugging him about it.

[101] Further, when it was put to her that the defendant was on the telephone to her parents, she also did not recollect that until again she was directed to the transcript of the 911 tape where she was asked where Mr. G. was when she left the home. She indicated to the 911 operator:

He was upstairs and he was talking to my parents on the phone. They were on the line like the whole time I was talking to him and I was trying to tell them how unreasonable he was being and they're like yeah I know he was being really....

[102] She was then confronted with another inconsistency that showed that he had indeed called her parents to come pick her up because he could not take this anymore. She told him that she was not leaving the house. She had no sensible explanation as to why she would tell the defendant, as she declared to the 911 operator, that she was not leaving the house, yet she maintained to the investigators and in her evidence in-Chief that she was terrified of the defendant and thought he was going to kill her that evening.

[103] A further insight into Ms. G.'s motivation in the relationship is illustrated by this excerpt from the cross-examination:

Q. Hold on a second. What lifestyle did you love....

A. I liked the gifts, I liked the tanning, I liked the gym, I liked that stuff.

Q. Okay, you, in fact, you said you loved it, you love it.

A. Okay.

Q. Did you love it? Is that why you wanted to stay with him?

A. In the end, definitely getting things bought for me was the only thing that I cared about. I didn't care about him or anything of the relationship. It was over with so I was just trying to get what I could get at the end.

Q. Okay, well, again, I'm talking about 2010. When you told the police, "I want to get back together with him because I love the lifestyle and I'm used to how he treats me, I like how he treats me."

A. Yeah, because I did. What girl wouldn't like a guy to let them get their nails done and pay for all their stuff? Who wouldn't like that?

[104] When it was suggested to her by Mr. Grill that her parents did not support her, she stated that they did. It was then put to her:

Q. Okay, you'll – will you agree with me that your parents refused to support your claim that you had been assaulted on this occasion?

A. No. Definitely not.

Q. Did your parents tell you that they were on the phone, they knew exactly what happened and you were making it up and refused to support you?

A. No. That never happened. My parents would always support me through anything that they say and they believed what I said.

Q. This is what I allege you told to the police on that occasion when they wanted you to come back to 12 Division: "Why did the complainant return to 12 Division?" "She spoke with her parents who did not support her decision for contacting the police and insisted that she was the cause of the altercation." Did you tell that to the police?

A. I don't think so.

Q. Do you recall your parents saying to you back then, "S.G., we were on the phone the whole time. We know exactly what happened."

A. No.

[105] Mr. Grill had accomplished his first task of establishing that this witness would concoct a story of an assault and choking because she had wanted to go out six weeks after the birth of her child and the defendant wanted to remain in with their newborn and, as she had been arguing with him all afternoon about this, in exasperation he told her to leave the house and then he called her parents to come and pick her up.

[106] Again, her motives for wanting to get back with the defendant after the allegations were explored by Mr. Grill go to the detriment of her credibility. This excerpt of the cross-examination is illustrative of that:

Q. Okay. Would you agree with me wanting to get back together with Mr. G....

A. Yeah, after that and after...

Q. Let me just...

A. ...he said he was sorry.

Q. ...finish the question. Would you agree with me that your statement to the police that you wanted to get back with Mr. G. because you love the lifestyle that you, that "she lives with him and is used to how he treats her" is a very different reason than getting back with him because you're scared?

A. I wasn't trying to get back with him because I was scared. The reason – and I, I was scared too.

Q. Okay, so you – are you telling, are.....

A. I was saying what he told me to say to the police.

Q. Okay, so are you saying that wasn't true? Are you saying you only told the police that because he told you to?

A. You're just, like, you're making me, you're making me, like, confused about the whole entire situation. You're making me second guess things and I – it's not really fair. You're like beating around the bush and you're, you're just trying to screw with my head. I know exactly what you're trying to do and I don't appreciate it. You're just trying to make me out to look like a liar and it's not fair.

Q. No, but I told you that at the beginning that's what I'm going to do. That's, that's what I'm trying...

A. But you're....

Q. ...to do.

A. Yeah, you're trying to do that, but I know I'm not lying so....

Q. It's – and this is why I want to get you....

A. You're just trying to confuse me and make me say something I don't want to say. You know what? Can I just go for a break, please? I'm getting too frustrated and I don't want to....

THE COURT: Okay, we'll take a short break at this point.

[107] Upon resuming the testimony, Mr. Grill then moved on to what transpired after Mr. G. was charged and released on bail with a condition that he not have contact with Ms. G. from that incident. In my mind, Mr. Grill established that it was Ms. G. who had frequent contact with the defendant after his release in November starting in January of 2011. He also established to my satisfaction that S.G. went to the Milton home, uninvited, on March 4, 2011 and found out that the defendant's friends, Jim and Tracey Robinson, were living in the home as he had rented the top floor to them.

[108] She was extremely upset to find out about this and Mr. G. later arrived and told her to leave. She followed him in her car and forced him to stop and he stopped his car.

[109] Exhibit 37A is a video of this encounter on which you can hear how distraught and irrational she was and how she does not care if she lives or dies.

[110] In cross-examination she states about the video she was combative and made wild accusations that he burned down Jim and Tracey Robinson's home so that he could defraud their insurance company and that he had done similar things in the past. These I find to be wild accusations supported by no credible evidence and only existing in her own mind. She says he admitted to this prior to taking the video that is Exhibit 37(a). She stated:

Q. So that night when you arrive unannounced and find Jim and Tracy there, am I correct that nobody says to you, "By the way, K.G. burnt down our house" or K.G. admits to burning down their house on purpose to get insurance money?

A. That night, no, but later on he admitted to it. When we were in the parking lot he admitted to it which he didn't record in the video conveniently.

Q. So if I understand your testimony correctly, then, your upset in this video is about the fact that you know that K.G. has burnt down their house?

A. Yes, and he's lying to me about every single situation that's going on up in Milton and that's why he doesn't want me anywhere near there. We were looking at apartments up in Milton, but for some reason he didn't want me to come up there and be closer to him. He wanted me to stay at a distance in Brantford. Then I figured it out later that this is why, because he had a whole plan. He was getting $4,650 a month from them, from the insurance company to live at his house and rent out the top. The whole reason he did it is just for money and then he rebuilt their house.

[111] Mr. Grill then played a further video that was taken on the defendant's cell phone on March 27, 2012 that was made Exhibit 38A on the trial. In it Ms. G. can be seen to be screaming and acting hysterically during a trip in their van to Brantford where the defendant had been taking her to stay at her apartment because things were not working out after she had moved back into his home after the charges of November 2010 had been stayed. She is hysterical, jealous and making wild accusations against him. She accuses him of having stolen cars and having burned down houses and dealing in drugs. She said that she is saying this on the video so that he will not show it to anyone. I have considered it and used it in my assessment of her credibility, along with all the other similar videos that were put in by the defence.

[112] In Exhibit 38(a) she is virtually hysterical throughout the whole video that goes on for about 35 minutes. She is accusatory towards him and this certainly belies the position that she took in her evidence in-Chief that she was terrified of the defendant. When this does not work, she attempts to become manipulative and then finally apologetic.

[113] When it was suggested to her by Mr. Grill that this was indicative of the arguments that they frequently had, she disagreed. However, virtually all of the videos proffered by the defence, and there were numerous ones, indicate exactly that.

[114] S.G. was a frequent user of marihuana. She denied that she was a daily user. Mr. Grill showed her several postings from her Instagram and Facebook accounts depicting her smoking marihuana. She then said that it was because the defendant had given her the marihuana and tried to deflect the blame of her use on him.

[115] S.G. had been diagnosed as having Borderline Personality Disorder by a psychiatrist in 2011. She admits that she has trouble trusting people, has abandonment issues and that she had felt that the defendant had abandoned her many times in the past.

[116] She stated that she was prescribed medication, but that the defendant said that she did not need to take it, so she stopped. She admitted that she was self-medicating with marihuana to cope with anxiety and depression.

[117] Mr. Grill then took her through a series of questions that were designed to be calm and understanding of her use of marihuana to self-medicate. Ultimately it worked. On April 26, 2017 the following excerpt from the transcript illustrates this:

Q. Okay, and that's why when I suggested to you on the last occasion you were using it virtually on a daily basis that was indeed true?

A. Yes, sir.

Q. Okay, because I don't - like, I've got, I don't know, 50 different images from Facebook and, and Instagram that I can show you, but if you're admitting "Yes, I was doing it on the daily basis" I can leave it.

A. Can I just explain? Okay, so, yes, when I was with Mr. G., yes, I was doing it on the daily. It was provided for me. It, it was around so it was easily accessible and, yes, I was using it quite frequently and then, yes, I was still using it when I broke up with him...

Q. Okay.

A. ...because I got basically – I'm not going to say dependent on it because it's not a drug where you get dependent on it, but it relieved the anxiety and stress of the whole entire situation. So, yes, for a point in time after being with him as well I was using it.

[118] Mr. Grill then pointed out that in her police statement she said to the police that she used to smoke marihuana but did not now.

[119] After much evasiveness, this was put to her in cross-examination:

Q. Okay, so are you suggesting to us right now that when you said to Detective Constable Werner "I used to smoke", you meant, like, a week ago before – it, it was May 1 st and now it's – you left on April the 20 th . You meant, like, 10 days ago?

A. I'm not really sure what I meant at the time. I can't really go back in my memory and...

Q. Yeah.

A. ...dig that out, so....

Q. I know, but what I'm suggesting to you – and I want to be fair to you and I'll, I'll just leave it because I think the record is already clear. Both to Detective Werner and before His Honour on the last occasion, you were minimizing your marihuana use?

A. Well, at that point after things happened, yes, I was minimizing it. I didn't have access to it all the time, so, yeah, I was occasionally smoking.

Q. And when I suggested to you you were a daily user up until the time that Mr. G. was arrested, you disagreed with me, but today you agree you were a daily user, is that fair?

A. I didn't think I'd disagreed last time. I said I, I, I think I used it a lot. I said I had access to it all the time.

[120] She was then taken to an incident that occurred while she was staying at her parents' home after the current charges were laid against Mr. G. in April 2014. On June 24, 2014 her parents called the police on S.G. She was upset that her marihuana had been found and flushed down the toilet. The cross-examination on this issue went as follows:

Q. Ma'am, I'm going to suggest to you when the police arrived you were still yelling and screaming over the loss of marihuana.

A. No, I had gone upstairs.

Q. Okay. This is, like, I'm going to quote from you from a synopsis of that incident. You tell me if it's accurate or not, okay? "Police attended to the Grieve family home in response to a report that S.G. was yelling and screaming over the loss of marihuana flushed down the toilet by her brother."

A. I thought it was my mom, but, sure, it could've been my brother.

Q. "J. was...."

A. I'm pretty sure it was my mom.

Q. "J. was witness to the events and her mother's response but appeared unfazed. The report noted that during the entire interaction with S.G. she did not once attend or speak to the child. S.G.'s parents were present." Is that fair?

A. My parents were with J. and I ended up going upstairs like I said because I was pissed off. The off – and the officers were coming, so I just went upstairs.

Q. You know, it was, it was just a bit of marihuana, right? Do you think in retrospect today that your reaction was appropriate?

A. You know what? No. I really don't. It was pretty foolish of me to get that upset over marihuana when I shouldn't have even been smoking it in the first place. So, yes, in that situation I'm not proud of my reaction, no.

[121] Mr. Grill then played a video of S.G. being hysterically emotional over a marihuana plant that she was growing being tipped over or, as she says, ripped out by the defendant. This is in evidence as Exhibit 41A and it occurred on July 16, 2012. I have viewed this exhibit and it informs me as to the assessment of the credibility and reliability of Ms. G. in a negative way.

[122] Similarly, a video of S.G. taken on June 1, 2012 of her ranting over the lack of internet in the house also informs me. That is Exhibit 42A. It speaks to the concept that was laid in direct examination that Ms. G. was in fear of Mr. G. and would be afraid to do anything to oppose him. All of these videos show her to be aggressive, confrontational and fearless of him at the time of their making. This is considerably at odds from the testimony that she painted of her life with the defendant and that the Crown submitted in their closing submissions.

[123] A very negative video that impacted on me considerably was one that was a 19-minute video made of the witness by the defendant after she had been ejected from a club. It is Exhibit 43A and shows this witness to have a warped sense of reality and an unbridled hostility to the defendant when he does not agree with every wild comment that she makes about why she was wrongfully asked to leave.

[124] In cross-examination about that video, Ms. G. stated as follows:

A. I remember most of the events of the evening. I didn't remember him videoing me. I didn't remember yelling in the car. I remember the events of what lead up to that, yes.

Q. And your statements in the video, "This girl is fucking jealous of me", "She's obviously jealous of me because I'm way hotter", "I got kicked out because she's jealous of me" and "People are thinking this girl was too sexy for this bar", you still believe that today, that's the reason why you got kicked out?

A. Yeah.

Q. Do you....

A. I, I don't know if it's a hundred – like, maybe, yes, maybe she thought I was drunk because I went to the bathroom to go puke, but I didn't get sick and I explained to her when I came out. She followed me into the bathroom and she saw me in there. I didn't get sick. The other lady gave me water and then she walked out and I guess she went to go talk to her security people or whatever.

Q. So the dirty look that the woman gave you, you took that mean all those things, that this girl was too sexy for this bar, she's too sexy for me and I'm jealous of her? She didn't say those things to you, right?

A. I don't under – like, I don't really know how to answer that.

Q. She didn't say those things to you?

A. She did not say those things to me, but she was, like, watching me basically the whole night that we were in there and then, yeah, she did follow me into the bathroom and she didn't like me. I guess I assumed she didn't like the look of me because of how I was dressed. People were more or less dressed a little more classy than what I was wearing, so I just assumed she didn't like the look of me.

Q. Um....

A. And there was a lot of older people there rather than – I don't know what year that was, but I was pretty young then, so....

Q. You, you accused K.G. during the course of that conversation of taking the bar's side, agreeing with everyone in the bar, going against you, sticking up for them and agreeing with the "retards that kicked me out." You felt like K.G. had abandoned you, he had taken their side? A. I guess in a way, yes, if he took their side which at the moment I did. I agree – I don't know about abandonment. I was pissed off that he took their side and wasn't on my side.

Q. The manifestation of your emotions is not as a result of your consumption of alcohol, I'm suggesting to you. Sometimes you get like that even when you haven't had a single drink, yelling and screaming and upset and crying?

A. That incident there, yes, I had a few drinks, so that in, definitely influenced why I got pretty pissed off. I believe any time where I am sober and anything has happened where I have been yelling and screaming and almost to that point would be an incident leading up to it where he has pushed all the buttons he knows how to push and has gotten me to that point and then that happens.

Q. It, it, it seems to always come back to that, doesn't it? It's always Mr. G.'s influence that pushes you over the edge and it's always in some way, shape or form his fault?

A. I'm not saying everything is his fault. I'm just saying that he does know how to push my buttons and a lot of time any video – like, the videos that I have seen are all him pushing my buttons prior, him not recording what he's doing obviously and then recording my reaction afterwards, yes.

Q. Well, I, I'm going to suggest, ma'am, that by virtue of you just saying that, you're lying right now under oath. You know those things aren't his fault, he hasn't pushed your buttons, this is all you.

A. No.

Q. And I'm going to suggest, ma'am, that that's typical of you, you have a very easy ability just to lie...

A. No.

Q. ...when it suits you.

A. Absolutely not.

Q. I'm going to give you an example. You have a criminal record, right?

[125] This was a perfect introduction into what was another damaging blow to this witness's credibility. It involved a dangerous driving conviction that gave S.G. a criminal record. Dangerous driving is not a crime of dishonesty, so it normally would not factor into a credibility assessment. However, the circumstances surrounding it did. This lead to a very convoluted process where, because there had been no s. 278 application before the Court as the matter was touched on when this proceeding was only a preliminary inquiry, there had been rulings made by me that foundational questions would be allowed. When the preliminary inquiry got derailed and turned into a trial, a s. 278 application was required. Ultimately, it was brought and allowed by me in an oral ruling.

[126] I adopt the succinct and accurate submissions of counsel Ms. Bingham in her written submissions about this evidence.

[127] Ms. Bingham states in her written submissions at paragraphs 45-47 as follows:

S.G.'s evidence also demonstrated her history of lying to police, which diminishes her credibility. She agreed that she lied to the police when she was arrested for Dangerous Driving in 2013. She told multiple, detailed lies, including that she did not have a yellow ATV, that she was in the bathtub with her daughter when the incident occurred, and that there was another blonde woman with a daughter driving a yellow ATV on their property.

June 7, 2017 Transcript, pp. 35-45

Officer Robert Garland, who was with S.G. in the squad car when she was under arrest, gave testimony that provided further evidence of S.G.'s attempts to manipulate the police. S.G.'s demeanour was, by turns, upset and weeping, angry, then flirtatious.

August 21, 2017 Transcript, pp. 4-7

When confronted with her problems or short-comings, S.G. repeatedly blamed Mr. G. These exaggerations negatively impact upon her credibility. For example, S.G. testified that Mr. G. told her to lie to police regarding the Dangerous Driving incident. It is not clear when Mr. G. would have had an opportunity to do this. S.G. also said that Mr. G. is the one who got her into marihuana, and that he told her to stop taking her psychiatric medication.

April 10, 2017 Transcript, p. 104, l. 1-3

April 26, 2017 Transcript, p. 13, l. 6-9

June 7, 2017 Transcript, pp. 28-29

[128] Although she tried to run over charity bike riders with an ATV that she was driving that day, which is not an issue on the credibility analysis in this trial, what did strike me was that she was deliberate and manipulative and cunning in her dealings with the police and in her evidence at trial. She, during the course of that day, said that they did not own a yellow ATV (a lie), that she was with her daughter all that day in the house (a lie) and that she tried to suggest to the police that another woman who visited the neighbour's property could have been the perpetrator (a lie).

[129] The testimony of Officer Garland, who was the investigating officer in the ATV incident, was telling and helpful to me. I accept his testimony as truthful and honest and complete. When one looks at it in its entirety it shows, in my view, a manipulative woman who is a stranger to the truth. Ms. McGuigan says in her written submissions that at the time Ms. G. was afraid and concerned about being arrested so she may have told some untruths but asks me to dismiss that as a scared young lady who is trying to save herself in the moment and is resorting to obvious lies to the police to do so. She submits that at trial "she was under oath". I do not agree with Ms. McGuigan's submission in that regard.

[130] Turning to another area, S.G. had testified that Mr. G. had arranged for her to buy two grams of cocaine in London so that she and H.C. could use the cocaine for sexual favours in return for Mr. G. This was the day after her birthday party on March 25, 2014.

[131] Mr. Grill then confronted her with a series of texts between her and H.C. that were on her Facebook account in Exhibit 12B that suggested that she and H.C. had fantasies about doing lines of cocaine off each other's bodies. She resorted to her refrain that it was the defendant using her Facebook to communicate with H.C. about these fantasies while posing as her.

[132] During the cross-examination on this topic, S.G. stated that she never used cocaine with H.C. This is clearly contrary to the evidence that H.C. would give later in her testimony.

[133] Mr. Grill then focused on the Taser that the complainant had testified the defendant had used to chase her around the house and assault her with. He suggested that S.G. had purchased this in Panama on a vacation when she was out at a market with T.V. The Taser resembled an iPhone. Mr. Grill suggested that S.G. kept it in her purse constantly. She denied this. Mr. Grill then suggested that the Taser was with her in her purse when she was giving her statement to the police on April 20th 2014. She denied this. However, it was pointed out to her that during the initial search of the house that the police conducted pursuant to the search warrant, no Taser was located. After this search, Ms. G. was allowed access to the home to collect her belongings and it was pointed out to her that during a subsequent search of the house by the police on May 2, 2014 the police found the Taser in a shoe box in the closet. She disagreed with this suggestion, but I find it to be a credible one.

[134] Mr. Grill then moved to the issue of S.G. testifying that she was terrified to leave because the defendant had threated her and her family with physical harm or death if she went to the police.

[135] The following exchange then took place:

Q. And I'm going to suggest to you, ma'am, that you saying, "I was very scared of him because I was concerned about my safety and the safety of the family" isn't borne out by the various videos we have. You are threatening him on the videos themselves to call the police about all the things you were saying were his illegal doings. You weren't scared of him at all, correct?

A. That's in one case and if you look at the body language you can clearly see that I am scared of him.

Q. Okay, well, what sort of body language?

A. In that one video you showed...

Q. I....

A. ...in the back of the van, as soon as he told me "Get your hand off me" I jumped back. As soon as he yelled you could see me shake.

Q. Well, I'll play you some more videos in a second, but I want to be clear about what I'm suggesting to you. You were never scared of him at all. You had no problem threatening him on video that you were going to go to the police, correct? You've been threatening him to go to the police for very similar allegations since 2011, since 2012, grow-ops, hash, stolen property. The very same allegations you've made now in 2014 you were threatening him for years with, agreed?

A. I, I don't know.

Q. You don't know. Okay. Let's, let's play some videos and see if it refreshes your memory.

[136] My viewing of that video does not support her testimony at trial that she was shaking or "jumping back".

[137] During the playing of the video an objection was made by Ms. McGuigan that the video encroached on s. 276 issues and the matter was then put over to another day for argument about that.

[138] On June 6, 2017 I held that the defence was allowed to cross-examine the complainant about previous sexual conduct with the defendant and others because the Crown had lead detailed evidence of her and Mr. G.'s sex life with other individuals. I need not repeat here what I stated in that oral ruling, nor revisit the case law considered.

[139] After my ruling, cross-examination continued on June 7, 2017. Exhibit 18, which was the video played on the last court date when the s. 276 objection was raised, was again played.

[140] That video again is telling and hurts S.G.'s credibility. Given the position advanced by the Crown that the defendant largely controlled S.G. and given that she had testified that she was fearful of the defendant, this video does not support that. She is seen on the video yelling at Mr. G. constantly, calling him a 'freak' and appearing very emotionally unstable. She displays anger towards the defendant, as well as jealousy.

[141] Mr. G. states on the video that he constantly wants out of the relationship and that S.G. is free to leave. S.G. maintains on cross-examination that she is only acting as she was because he was videotaping her and she wanted him to stop, but that seems to me to be an unacceptable explanation that she is acting in that way just so that he will stop videotaping her. She threatens to call the police on him about his criminal behaviour and agrees in cross-examination that she had done this in the past.

[142] When S.G. was referred to the video of her being tied down and crying when Mr. G. videotaped it and asked her if she wanted him to continue and she nodded her head yes, the following excerpt of the cross-examination is illustrative of her threats to go to the police with videos of the marks on her buttocks:

Q. Okay. Okay, do you, do you accept that there's a point when the video starts where you say, "What are you doing?"

A. Probably because he was videoing me.

Q. Right.

A. Yeah.

Q. Okay, and do you remember your discussions with him afterwards about why he felt it necessary to videotape you consenting?

A. Yeah, because he would make me consent to it so then he wouldn't get in trouble.

Q. Do you remember why he felt the need to do that?

A. No, I don't.

Q. Because you threatened him. You said, "I've got pictures of my behind with welts on it and I'm going to go to the police and tell them..."

A. I don't believe that.

Q. "...you...." You don't believe it?

A. No.

Q. Well, either you did it or you didn't. Did you threaten Mr. G. with that....

A. I told him that day, "If you keep doing it, I'm going to go to the police."

Q. Did, did you....

A. And then if I say that, then he'll get worse.

Q. Did you tell Mr. G. during the course of your relationship that you were going to go to the police and show them pictures of your behind and say that it was not consensual and get him in trouble and charge him with sexual assault?

A. I guess I could've, but it would've been yes, because he's doing something I don't want him to do.

Q. Would you agree with me that that's the reason that Mr. G. felt compelled to videotape your consent because he was fearful you'd go to the police and allege it wasn't consensual?

A. He's fearful because he knows it wasn't consensual. He knows what he does.

[143] S.G. maintained in cross-examination that the defendant was controlling of her. She stated that he took the car keys away from her multiple times if he was angry with her. She also stated that she would be allowed to go out with girls without him but only because he wanted to have sex with the girls later. Mr. Grill showed her Exhibit 44, which is a picture of C.S. who testified for the defence later in the trial and whose evidence I believed.

[144] When she identified her, Mr. Grill then suggested to her that she was allowed to go out with girlfriends while Mr. G. stayed home and babysat his daughter. She stated:

A. I've done that if he would let me go out with one of the girls he wanted to sleep with and I would go out maybe once or twice, not very often, and most of the time we went out together.

Q. You've – K.G. has been home babysitting at night when you've gone out, correct?

A. When J. was put to bed, and I would put her to bed, there was one occasion where I remember going out with a girl named C.S. and we went to a bar in Guelph.

Q. C.S. the redhead?

A. Yes, but that was after she would give him a blowjob and then he would let us go out and that, that's what we had to do to get out of the house.

Q. Sorry. Are you suggesting that the only way that he would let you go out with C.S. is if she gave him a blowjob?

A. Not all the time, but the night when we wanted to go out and, yeah, go have a couple of drinks, that's what she had to do and we took her car, not his.

[145] Mr. Grill then showed her a picture of her and C.S. when they were out shopping at the Bramalea City Centre, and S.G. then became defensive and evasive in her testimony.

[146] Mr. Grill suggested that C.S. would be called at the trial and would testify that she never had sex with Mr. G.

[147] Her defensiveness is illustrated in the following lengthy extract:

Q. But you agree with me you went out on multiple occasions with C.S.?

A. We went out every once in a while, not multiple occasions, a bunch of different times.

Q. Um....

A. I was hanging out with her for a certain amount of time and then he got sick of her, so....

Q. Okay, what do you think of C.S.?

A. I don't – what do you mean?

Q. Well, she was your friend, correct?

A. She was somebody I could hang out with that wasn't him.

Q. Okay.

A. She wasn't my friend.

Q. She wasn't your friend?

A. No.

Q. She – didn't she have a daughter J.'s, around J.'s age?

A. She was a – I think she was the same age, yeah.

Q. Did, did she used to come over with her daughter so that her daughter and J. could play while the two of you....

A. Maybe once or twice.

Q. Okay, and did you ever go out with the four of you, that is to say, you, C.S. and your daughters?

A. A couple of times we went to the mall, yes. That's what I already said.

Q. That sounds like a friendship for, for....

A. It was somebody I could hang out with other than him.

Q. Okay.

A. I didn't get to choose my friends. If I was hanging out – I wasn't allowed to hang out with my friends from Brantford because that was a waste of gas and a waste of money because none of them are going to put out.

Q. Okay, but in, in terms of, of C.S., I just want to focus on her for a second. She was somebody that you can hang out who wasn't, as you say, K.G. You enjoyed her company, correct?

A. I didn't really have a choice. I was just happy that I got to go out and do something.

Q. Did you enjoy her company?

A. Sure.

Q. Did you think she was a good person?

A. No, I didn't really think she was a good person.

Q. You didn't?

A. No.

Q. How come?

A. She basically just wanted to hang out with us because she knew K.G. would buy her stuff if she did things.

Q. She had a, she had a husband, right?

A. No, she doesn't have a husband.

Q. She had a boyfriend, right?

A. She had a boyfriend that was an on-and-off relationship and a crappy one at that.

Q. You, you went out with her one night and met her boyfriend, do you remember that?

A. No.

Q. You don't remember ever meeting her boyfriend?

A. I'm not a hundred per cent sure.

Q. Okay, but apart from going out with your daughters, you'd go out clubbing, you'd go out at night with her one of those nights?

A. There was the odd occasion where, yes, I would go out with her.

Q. Okay, did, did, do, do you know C.S. to be anything but an honest person?

A. I don't know her that well. I never really got to know her that well.

Q. How many.....

A. She hung out for maybe a month or two and that was it. Maybe just a month. I'm not sure exact timeline. She wasn't around all the time. She wasn't somebody I could just call up.

Q. I plan to call her during the course of this trial.

A. That's fine.

Q. She won't – you don't think she's going to agree that she gave K.G. blowjobs so that the two of you can go out, right?

A. Probably not. I don't know. She could because, you know what? It happened. And if she wants to lie, she can. That's her prerogative, not mine.

Q. Okay, so if she comes to court and says, "That's ridiculous. I never had to give K.G. blowjobs to go out", you're saying that's – she's lying about that?

A. Yeah. She is.

Q. You say that you and C.S. were only friends for a few months?

A. I said I'm not a hundred per cent sure. I don't know if it was one to two months. I'm not a hundred per cent sure.

Q. Do.....

A. I don't think it was very long. It wasn't like a year or six months or anything I don't think.

Q. I'm going to suggest to you that C.S. has pictures of you and she on her phone from, dating back from at least August the 9 th , 2013 and pictures on her phone as late as February of 2014. August, September, October, November, December, January, February, maybe at least a friendship of seven months, is that fair?

A. I have no idea.

Q. You have no idea?

A. I don't know the timeline. Do you know how long ago that was?

Q. Do you disagree with that, with that assessment that you may have been friends with her for, for up to seven months?

A. I'm not sure. It's a possibility, I guess. I'm not sure.

[148] I found it necessary to include the above lengthy quote to illustrate what I find to be S.G.'s evasiveness in cross-examination and the animus that she shows to the defendant and C.S.

[149] In light of the evidence which came out later through C.S., which I found to be credible evidence, it paints a very different picture of her relationship with S.G. She testified that it was a relationship that S.G. had commenced and that, although she was friends with the defendant as well as S.G., she only engaged in sexual practices with S.G. exclusively. These included BDSM sessions where both S.G. and C.S. would take turns striking each other with whips and other implements. Furthermore, these activities occurred in the shed. A photograph shows C.S.'s behind that is significantly marked up by welts that she said S.G. inflicted on her on February 19, 2014. We can see in that photo that C.S. is in the shed bent over the defendant's car. This calls into doubt S.G.'s testimony that the shed was only used by her and the defendant when he wanted to punish her and that she never engaged in BDSM with anyone other than the defendant in the shed.

[150] Mr. Grill left this area and cross-examined S.G. on the incidents surrounding her arrest for dangerous driving. He painstakingly took her through the events of that day and her subsequent plea to the charge. He got her to admit that she told many lies to the police that day, that she tried to cast suspicion on another person and she then resorted to blaming her behaviour on the defendant who was not even there until after the arrest. I need not deal with this evidence by setting out every inconsistency that was revealed. I will deal with that later in my analysis, but I may say that again in this area her credibility was seriously eroded on cross-examination.

[151] Also, the evidence of Officer Garland, who testified for the defence, suggested that S.G. was at first hysterical and crying and then later became flirtatious with him. She asked the officer how old he was and stated to him that he looked much younger than his age.

[152] S.G. testified that she never used the website "Seeking Arrangements". She stated that it was the defendant that set up the account and paid for it and used it to meet girls posing as her. She similarly testified that she never used the email address "sandktogether@gmail.com" and would not admit that she sent any sexually suggestive emails under her name.

[153] Yet, two days after the defendant's arrest, she set up another "Seeking Arrangements" account seeking a "Sugar Daddy AND a Sugar Mommy.

[154] This is precisely the sort of arrangement that she purported to detest in her marriage to the defendant.

[155] It was put to S.G. that it was she who friended H.C. on Facebook and arranged to meet her. She denied this. Mr. Grill suggested that she probably never told H.C. that and that it was the defendant who had done this, to which she replied "yeah, I have told her that multiple occasions". H.C. in her testimony never recalls having been told this by S.G.

[156] S.G. admitted in cross-examination that the defendant let her have sex on other occasions with other men. For instance, at her last birthday party in March before Mr. G.'s arrest, she had sex with one of the male strippers that had attended the party.

[157] The following excerpt from this exchange illustrates but one example of S.G. being hostile to Mr. Grill:

Q. You've also suggested through the course of your statements and your testimony that K.G. would only – I want to be fair. Would K.G. allow you to have sex with other men?

A. There was an occasion where that happened, yep.

Q. Are you saying there was only one occasion?

A. I believe so, yes.

Q. Let me ask you a different question.

A. Oh, no, sorry, maybe two. Two times.

Q. Maybe more?

A. There was two times. I remember. I recall two different times where that was okay.

Q. Let me put it a different way. Whether it's one or whether it's 100, if you ever wanted to have sex with.....

A. That's a far stretch right there.

Q. No, no, the point is not that it was 100 or that it was one...

A. But you're going to...

Q. ...the point is that it doesn't....

A. ...throw that number out there to make me look bad, okay.

Q. No, S.G. That wasn't my intention.

A. I'm sure it wasn't.

Q. It's not and if you took it that way, I don't want you to take it that way. All I'm suggesting is that Mr., Mr. G. never prevented you from going off with other men or other women. If you wanted to, that was up to you.

A. Absolutely not. He would have to give me permission to whatever and if he was okay with it, he was okay with it. I'm sure he was getting something out of it afterwards.

Q. Fair enough.

A. Don't know what it was, but there was always a motive.

[158] S.G. admitted to being with another man when Mr. G. called the police to report her as a missing person.

[159] It is noted in her statement to the police on May 1st, 2014 she told the police that he would not let her sleep with other men and that there was only one occasion. When questioned about this the following occurred:

Q. And it was, it was quite an exaggeration, I suggest to you, and, and a lie when you said to the police that he wouldn't let you sleep with him and there was only one occasion. There was more than one.

A. At that time there was probably only one occasion because at that time it was – Brendan didn't come into the picture until later on, so, no, I wasn't lying.

Q. Ma'am, you're speaking to the police on May 1 st , 2014 after he's been arrested.

A. I don't know.

Q. Oh, okay.

A. I don't know what you're talking about with that.

Q. All I'm suggesting to you, ma'am, is you lied to the police.

A. No, I didn't lie to the police.

Q. You, you made it seem like Mr. G. was controlling about what you could do sexually, but that wasn't true.

A. Oh, yeah, it a hundred per cent was true.

Q. No. And you said he wouldn't let you sleep with other men except for one and that's not true.

A. I could've been thinking about what just happened.

Q. You could've been, but it wasn't true.

A. I'm not saying I lied. I could've made a mistake.

[160] Turning to the night that the complainant called the police, Mr. Grill suggested that she was upset because the defendant and H.C. did not want to have sex with a couple at a swingers club called The X Club who they met from Montreal when S.G. did.

[161] After showing her a picture of Exhibit 50A, which was a picture taken of her and H.C. in front of the Jaguar owned by the Montreal couple, the cross-examination went as follows:

MR. GRILL: Q. And the reason I, I showed you the photograph, ma'am, to see if it refreshed your memory about what the fight was about that night with H.C. and K.G.

A. I just remember it as being something I got mad at her for stealing the attention of whoever. I remember getting mad at her and being jealous, yeah.

Q. Okay. Well, I agree with you you became jealous of her later on in the night, but I'm going to suggest to you that that night you were upset because H.C. and K.G. didn't want to have sexual relations with that couple from Montreal and you were upset with them.

A. Absolutely not.

Q. Absolutely not.

A. I know that wouldn't happen.

Q. Tell us, how come that wouldn't happen?

A. I just know it wouldn't happen. He would never not want to have sex with somebody. He's not like that.

Q. Okay.

A. He's a pig. He'd have sex with as many girls as possible, so....

Q. What do you think about – what about H.C.? Do you think she's honest?

A. No. Definitely not. From text messages that I've had with her afterwards, hell no, she's not honest.

Q. Text messages you've had with her afterwards about what?

A. Lying about the video that happened and all that bullshit.

Q. What do you mean?

A. Saying that this video never happened, but yet I have text messages of her saying, "I'm so pissed off at K.G. for him videoing me doing this."

Q. So.....

A. She's a liar about a lot of different things, so, no, I wouldn't trust her. She's ridiculous.

Q. Okay, but I'm very interested about these text messages after the event. Did you have a text conversation with H.C. after K.G. was arrested?

A. A while afterwards, yeah.

Q. How long afterwards?

A. I'm not a hundred per cent sure. I had it in my old phone and I no longer have my old phone, so....

Q. Tell us, tell us what the conversation was about.

A. I'm not a hundred per cent sure. I'd have to look at my text messages. I'm pretty sure they're in an exhibit because I sent them to the police afterwards.

Q. Okay.

A. So we could look those up if you want. They'd be dated and timestamped and all that stuff because I'm pretty sure they're probably evidence.

Q. How long after Mr. G. was arrested did you have these conversations?

A. I'm not sure. I can't give you a date. I honestly don't know.

Q. Okay.

A. I'd have to look at the date on the text messages or it could've been Facebook messages. I'm not sure which.

Q. Okay, and you were suggesting that based on that conversation and those text messages she's clearly a liar. So what were those text messages about to make you believe she's clearly a liar about the video?

A. Saying that it never – or saying that, "I'm so pissed off about...." Oh, no, it was on my phone because she was texting me right when it happened and he was in the car. He came out from a mall somewhere. I don't know where the mall was. He came out and she's, like, "I'm so pissed off" because she saw a screen shot across the top that he showed a picture of something happening and sent it to one of his friends or something like that. I don't exactly remember because I need to see my texts that I text. I just remember along those lines it was something like that and she was all pissed off about the video. Then at a later date after all this happened, that is when she said that, "No, this video never happened", but I had proof that it did happen because she's saying, "I'm so pissed off that he made this video."

Q. I, I'm interesting about the later date.

A. I'm not sure what date it was, no.

Q. So you're saying at some later date after Mr. G. was arrested?

A. Yeah, saying that the video never happened. The police don't have the evidence because the video got deleted.

[162] She was clearly hostile with regards to H.C. in the above exchange, as well as the defendant. It is interesting to note that when H.C. testified she confirmed that S.G. was angry that night because she and Mr. G. did not want to have sex with the Montreal couple that evening but Ms. G. did.

[163] She indicated that H.C. had sent her a screenshot that she says H.C. sent her of the defendant filming her and H.C. having sex together which is the subject of the make pornography charge against him and the voyeurism charge. S.G. then said that this was sent to her and received on an old iPhone that she does not have any more so she does not have the image. She had earlier said that she saw the screenshot, but that there were no faces visible in it. She added that she knew her body and H.C.'s body, so she knew it was her and H.C. even though no faces were visible.

[164] S.G. testified that she found out about H.C.'s true age and that she was under 18 sometime early on. Mr. Grill suggested that she found that out at her own birthday party, but she denied that and said that that would have been convenient for the defendant. She was assuming Mr. Grill was going to ask her and suggest to her that the incident of the defendant allegedly videotaping them having sex was before the birthday party. This exchange was telling against S.G. and can be found on page 107 of the June 17th transcript.

[165] What Mr. Grill did establish was that when she found out about H.C. being 16 years of age she and the defendant had a conversation where he said to her that they had to be careful and not to photograph or videotape her in a sexual manner. S.G. agreed with that, obviously not knowing what was in Mr. Grill's possession.

[166] Having established that she knew at the very least that H.C. was 16 years of age, Mr. Grill produced a photo to her which was entered as Exhibit 52A and sealed:

Q. Okay, and I'm going to suggest to you, ma'am, that despite the fact that you knew that she was under age, you still took sexual pictures of her after you found out her age.

A. Definitely not.

Q. Okay, I'm going to show you a photograph that you took of her on March the 26 th , 2014 after your birthday party. You can return that to me. Do you want your monitor up?

A. No, I'm okay.

Q. That's a photograph that you took of H.C. on March the 26 th , 2014?

A. Definitely not.

Q. Do you see the photo – do you see the mirror behind her?

A. I don't.

Q. Do you want to get – do you want to, do you want to come closer or do you want us to put up your screen?

A. I can't see. I'll look. I don't really see anything.

Q. This photo was found on K.G.'s phone on Exhibit Number 4, image number 0563 taken on March the 26 th , 2014.

A. Okay.

Q. The, the person taking that photo, as you can see in the mirror, is not Mr. G.

A. So who do you think it is?

Q. I think it's you.

A. I don't think so.

Q. Did you have red leggings?

A. I did not have red leggings.

Q. Black top?

A. A lot of people have black tops.

Q. But that's you in the photograph, correct? That's...

A. I don't think so.

Q. ...you taking it?

A. No.

Q. Do you recognize the door? Do you recognize where that photograph was taken?

A. No, I don't.

Q. Was that.....

A. It doesn't look like my house at all.

Q. It's – I'm going to suggest, ma'am, that's a door in the house that you lived in with Mr. G.

A. I don't think it is. He didn't have any doors like that, I don't think.

Q. So you deny taking that photograph with Mr. G.'s phone of H.C. on March the 26 th , 2014?

A. That doesn't not – that's not my house. That doesn't look like my house.

[167] Despite her attempts to get out of this by saying that it does not look like her house and "we don't have doors like that", there is police video of the home that shows the identical door with the mirror in the video taken by the police during the execution of the search warrant. The extraction report indicates that this photo was taken on Mr. G.'s iPhone seized by the police at the time of his arrest.

[168] This I considered to be a clear attempt by this witness to mislead. Mr. Grill later corrected himself and said that the photo might have been taken March 22, 2014, but this makes no difference.

[169] In the June 12, 2017 transcript where the Crown was playing the video of the police execution of a warrant on May 2, 2014, which video is Exhibit 30, Mr. Grill stopped the playing of the video at the 10:03 mark to point out that the door with the mirror on it captured in the video is identical to the door that Ms. G. testified to was not in her house. It obviously is.

[170] Mr. Grill goes on. He says:

Q. And, ma'am, I'm going to suggest to you not only did you take that photograph which has now been marked as Exhibit 52A, 52A, the one I just showed you of H.C., but you administered at least in part the, the spanking as evidenced by the marks on her bum.

A. Definitely not. That's his thing, not mine.

Q. Did you just say that's his thing and not yours?

A. Mm-hmm.

Q. Are you saying that you never spanked H.C.?

A. I don't think I did, no.

Q. Are you saying that you never spanked other women?

A. I don't think I did, no.

Q. You don't think you did?

A. No.

Q. I'm going to.....

MR. GRILL: Can we go to this image now?

Q. I'm going to show you an image taken from Exhibit Number 4, image 6548, dated February the 20 th to February – February 20 th at 12:04 a.m.

MS. BINGHAM: This one?

MR. GRILL: Pardon?

MS. BINGHAM: This is the one you want?

MR. GRILL: Yes. Is that it?

MS. BINGHAM: Yep.

MR. GRILL: Q. Do you recognize that person, ma'am?

A. Yeah, that's C.S..

Q. I expect C.S. will testify that you administered that to her on February the 19 th , 2014.

A. That's fine, but I didn't.

Q. So you deny that?

A. Yeah, I deny it. He does that, not me.

[171] This is contrary to the testimony of both H.C. and C.S. who both testified that they engaged in BDSM activities with S.G. where she spanked or used whips or paddles on them. Exhibit 34 is a picture of C.S.'s buttocks.

[172] When Ms. G. was shown Exhibit 34, the following exchange took place:

MR. GRILL: Q. Here's the colour copy that we just showed you on the screen. This is Exhibit 34.

A. It's really funny how it's the exact same markings he liked to do to me, so....

Q. Okay.

A. On my legs, on my butt, the exact same strap, it's hilarious.

Q. When, when you were showed this by the Crown Attorney, my recollection is you thought that was you.

A. Exactly, because it's the same kind of marks that he did to me. I wasn't sure.

Q. Let me ask you this, then. Were you present?

A. How am I supposed to know that? I didn't even know if it was me or if it was her. I don't know.

Q. Were, were you ever present when C.S. and K.G. were involved in consensual BDSM?

A. I don't know.

Q. You don't know?

A. I don't know.

Q. Well, do you remember.....

A. That was a long time ago. I don't know.

Q. Okay, I'm going to suggest, ma'am, you know and you remember full well.

A. I can suggest whatever you want, but I don't know. I don't remember and I'm not going to lie, so....

MR. GRILL: Here's a photograph that my friends haven't seen, Your Honour. I expect C.S. to testify that this photograph was taken on February 19th, 2014.

Q. Do you recognize C.S. in that photograph?

A. I recognize C.S., yep.

Q. What else do you recognize in the photograph?

A. K.G.'s car.

Q. K.G.'s yellow Corvette?

A. K.G.'s car, yes.

Q. And do you recognize the location of that photograph?

A. Yeah, it's in the garage.

Q. It's in the garage.

A. Well, obviously the car is not going to be parked in the house, so....

Q. And do you – are you denying, ma'am, that you caused those marks to....

A. I am a hundred per cent, yeah. I know I wouldn't have done that.

Q. You wouldn't have done that.

[173] It is noted that C.S. later testified in the trial that it was indeed S.G. who put those unpleasant looking welts on her buttocks during a mutually consensual BDSM session.

[174] Exhibit 11A is a photograph that S.G. testified was texted to her which was taken by Mr. G. and that the photo was created on November 30th, 2013. She even testified that he emailed it to her the next day and asked her if she had learned a lesson.

[175] Mr. Grill then put to her what are Exhibits 55 and 56 and suggested that they were pictures of her and C.S.'s buttocks on November 30, 2013 where she inflicted the marks on C.S. and C.S. inflicted the marks on her. She disagreed with that and also disagreed with the suggestion that Mr. G. was in Marmora that night and it was just S.G., C.S. and their daughters who were at the house.

[176] Mr. Grill then briefly returned to Exhibit 52A which was a photo taken of H.C. by someone who was described a wearing red leggings. He then noticed on another computer monitor that they could have been pink leggings and asked her if she owned pink leggings and she admitted that she had.

[177] He then moved to the list that she wrote out, which is Exhibit 11B and is entitled "Spanking From Panama". She admits that it is in her own handwriting and says the defendant made her write it out. When it was put to her that she wrote it out herself and when she showed it to Mr. Griffith he said "Are you crazy? That's way too much. You could never sustain that", she disagreed with that suggestion.

[178] When asked about the "safe" words it was suggested to her that the safe words were "Mercy Mercy Percy". She said, "Those were words that he came up with and if I said them he would stop, but he never did."

[179] Mr. Grill then showed her the Exhibit 57A picture which is a picture of her taking a "selfie" of her buttocks that has strap marks visible. This exchange went as follows:

Q. This was a phone taken from Mr. G. upon arrest and it's going to be an image of you using his phone, I suggest, to take a selfie of your behind.

A. That would be my phone that I have in my hand. Yeah, I'm taking pictures of evidence.

Q. Are you saying that your phone was a black phone?

A. I had a black iPhone 5S.

Q. Okay.

A. Yeah.

Q. It was black?

A. Yeah.

Q. And you're saying that that's your phone?

A. That's my phone.

Q. I'm going to suggest to you, ma'am, that you're mistaken, that's his phone and you're using his phone to take the....

A. Absolutely not. I only had my phone.

Q. Okay. In any event, ma'am, the image was found on his phone.

A. So?

Q. When.....

A. He went into my phone all the time too.

Q. I'm going to suggest to you, ma'am, that you were taking this image of your behind because you were showing it off.

A. No.

Q. You were proud of the marks on your behind.

A. Absolutely not.

Q. Why are you taking a selfie of your own behind, then?

A. As evidence.

Q. As evidence?

A. As evidence.

[180] This exchange, in my view, speaks to two matters. Firstly, it pins her down on the fact that she took selfies of the marks on her caused by BDSM sessions which, in the case of Exhibit 57A were not extensive. Therefore, I question the need to have this photo taken as "evidence" as she purports to have done. It would show nothing more than minor BDSM results that she has agreed she consented to at times. Secondly, it raises the possibility that she did use Mr. G.'s phone to take images as this image was taken with his cell phone and it is a "selfie."

[181] When Mr. Grill moved to the area concerning whether or not she was involved in sexually explicit chats with anybody and her position that it was the defendant who did this, not her, she then stated:

Q. Okay, I, I thought you testified on many occasions that you would never be involved on your own in sexually explicit chats with anybody else. That was all K.G. Is that correct?

A. I'm not sure. This is going to be my answer from here on out because I'm sick of answering your questions, so....

Q. You're not sure.

A. I'm not sure. I don't know. I honestly don't know.

[182] She then answered "I don't know" to Mr. Grill's next several questions. A break was taken and when court resumed I questioned her and allowed her a several day break to continue her cross-examination because it was evident that she would not cooperate with any responsive replies that day.

[183] When S.G. commenced her evidence again on June 12, 2017, Mr. Grill asked her if she has ever threatened suicide and she replied that she has.

[184] With respect to jealously, Mr. Grill suggested that she suffered from intense jealously. He stated:

Q. The next thing I want to ask you about is issues of jealousy. Do you agree with me that during the course of your relationship with Mr. G. you've often expressed intense jealously in relation....

A. Justified jealousy, yeah.

Q. Pardon me?

A. Justified jealousy, yeah.

Q. Jealous of other women, of other people contacting him, ex-girlfriends, things of the like?

A. Yeah, justified jealousy.

Q. I understand, but, but in relation to other women?

A. I said yes, justified jealousy.

Q. And in relation to maybe ex-girlfriends you thought were contacting him?

A. Well, ex-girlfriends that were contacting him, but yes.

Q. And during the course of those arguments you would get visibly emotional, screaming and yelling and visibly angry?

A. Not necessarily screaming, more crying.

[185] Mr. Grill then played a video taken March 9, 2014 where she was screaming at Mr. G. about his ex-girlfriend who had sent him a text. I did not notice her crying in that video, just hurling insults and profanities at Mr. G. about his ex-girlfriend, calling Mr. G. an idiot and saying that she was 'way hotter' than his ex-girlfriend.

[186] Mr. Grill then suggested that S.G. was even jealous of her own daughter at times and that she would express it like, "How come she gets shoes and I don't get shoes"? To which she replied, "Maybe sometimes, yeah."

[187] Finally, Mr. Grill got Ms. G. to admit that on April 20, 2014 when she called the police nothing happened that night, no assaults or sexual assaults happened that evening, there had just been an argument and the defendant had then gone to bed.

[188] In re-examination, Ms. McGuigan asked if S.G. used the sandktogether@gmail.com to create a Facebook profile for anyone named Keith and she replied no and also stated that she did not use it to advertise to sell a steel building on Kijiji in 2014.

[189] Ms. McGuigan then questioned S.G. about the birthday party in March 2014. She was asked if she was using drugs that night and she replied that she thinks that she smoked some marihuana and "I drank a lot". She believed that there was only one female stripper scheduled to come that could not come, and of the two male strippers, she only recalled the name of one who was Brandon.

[190] S.G. identified the mysterious "Munroe" from Seeking Arrangements after she was referred to Exhibit 49, text number 653, which seemed to jog her memory. She thought it referred to a black woman named Samantha. When asked who might have been communicating with her, she thought it was the defendant, however she does remember herself communicating with her. She said that she had contact with Samantha on Facebook because the defendant wanted her to.

[191] She remembers going out for dinner with this woman, who she said was a model, a couple of times and going to a club with her. She says that this relationship turned into a sexual relationship. This would have been in 2013. Samantha met S.G.'s daughter.

[192] She was not sure how the relationship with Samantha ended.

[193] In re-examination by Ms. Hoffman, she touched on the rather vague evidence given by S.G.'s answer to Mr. Grill found in the transcript of April 26, 2017 at page 58 where, in relation to a question on cross-examination that "you never saw K.G. give H.C. any cocaine" and she replied "yes", she was asked to expand on that. She gave a vague response which was:

Q. Okay, and then the, the question goes on, "So let me just be clear about this. You do admit now that it was you and H.C. who got the cocaine in London. K.G. wasn't there. K.G. didn't buy it" and the answer was, "K.G. gave me the money to buy it."

A. Yeah.

Q. Okay. So the question, "You never saw K.G. give H.C. any cocaine?", "Yes", is – and, and what is your testimony about the "yes", if you can expand on what that "yes" meant when you answered Mr. Grill?

A. I believe that I saw him give it to her downstairs in the dungeon room and I'm pretty sure he – like, she – I don't know if it was him or her, but they – I remember her doing it off of, there was a – I don't know if it's, like, called an armoire or something like that down there. I'm pretty sure....

Q. So you're referring to the dungeon incident?

A. Yes.

Q. Okay.

A. I'm pretty sure. I'm, I'm, I might have – I'm not sure. You know what? I'm not going to say that because I can't remember.

Q. About what you were just about to say...

A. Yeah.

Q. ...or something.....

A. About, no, about what I was just about to say. I can't remember, so I'm not going to – I'm not going to say it because I don't know a hundred per cent.

Q. You don't know a hundred per cent what?

A. I was going to say I, I might have seen her upstairs in the kitchen do it as well, but I'm not a hundred per cent sure.

Q. Okay, so what you're not sure about is the kitchen incident?

A. Yes.

Q. Okay. All right, you, you, your hundred per cent sureness isn't relating to the dungeon incident of the cocaine? I'm not trying to confuse you. I'm just trying to have you clarify what the "yes" meant.

A. I think the "yes" meant to the dungeon incident, but I don't remember now. I think so. I'm pretty sure.

[194] This response only muddied the waters more as to whether S.G. is saying that she saw the defendant give H.C. cocaine or not and was not helpful in my analysis.

[195] This concluded the evidence of S.G.

C. Evidence of H.C. – Direct Examination

[196] H.C. was born October 24, 1997.

[197] In the spring of 2014 she was attending an alternate high school taking grade 10 courses and was not working. She was living with her mother and her grandfather in Brampton at the time.

[198] She said that she first met the accused and S.G. in the fall of 2013 around her 16th birthday. She had received a message from S.G. on her Facebook account that she was looking for a babysitter, so they arranged to meet and go shopping and then have her babysit. S.G. showed up with her daughter J. and took her shopping and then back to the defendant's house in Milton. She never, throughout the course of her relationship with S.G. or the defendant, discussed how S.G. came to find her on Facebook. She just assumed it was for babysitting.

[199] H.C. babysat J. that night while S.G. and the defendant went out to a club. They told her where there was alcohol in the house if she wanted some. They arrived home around 1:00 or 2:00 a.m. and they had been drinking, so they suggested that she stay over, which she did.

[200] On the next occasion that she came over she came to babysit, but when she got there they suggested that she go to X Club with them.

[201] H.C. recalls that before they went to the club there was some conversation with S.G. and the defendant on how she would get into the club. There may have been some conversation about fake I.D., but essentially the defendant told her to walk in with her shoulders back and act like she was 24, which was the age required to get into the club.

[202] She ultimately had no trouble getting in because the defendant had been a contractor who built the sex rooms in the club and they were lax with the rules with him.

[203] Once at the club the defendant bought H.C. quite a few drinks and she became tipsy. She was doing shooters with S.G.

[204] When they got home she was offered to sleep with them, but she slept on the couch instead. At first she indicated that she immediately went to sleep but later changed her testimony to say that she did not go to sleep but that the defendant asked S.G. to show her the dungeon in the basement. He accompanied them and asked S.G. to get on the table and started whipping her with different whips and showing her the marks they caused. He then asked H.C. to spank S.G. and she did so.

[205] They then went upstairs and she became sexually involved with S.G. The defendant asked S.G. to perform oral sex on H.C. and then having H.C. perform oral sex on S.G. He would as well pull out various sexual toys and tell H.C. how to use them.

[206] Both women were naked or just in their underwear but the defendant was fully clothed.

[207] This turned into a pattern with H.C., estimating that she went over about 20 to 30 times before it ended with her being arrested with Mr. G. in April 2014.

[208] Most of the times she would go over she would stay over with them and they would go out to clubs.

[209] H.C.'s evidence on this point is confusing because she seems to be mixed up about whether the first sexual contact happened on the second night or on another night.

[210] During these times she would smoke marihuana with S.G., as well as drink alcohol. Sometimes she would use cocaine with S.G.

[211] H.C. then says that the next significant event that she recalls is S.G.'s birthday party.

[212] She says that she was with them at least 5 to 10 times between the first sexual encounter with S.G. and the birthday party. She had sexual encounters with S.G. on these occasions and the defendant was there for a lot of the time.

[213] She recalls going to the dungeon with them and she would be on the table and the defendant and S.G. would each whip her. Sometimes whipping would occur upstairs in their bedroom.

[214] She never went to the shed until after the defendant was arrested.

[215] She indicated that S.G. would usually text her and ask her to come up.

[216] She recalls the defendant telling her about S.G.'s birthday party and how she should come. He said it was going to be a big party and he was having strippers there for S.G. It was going to be a surprise party.

[217] She remembers at the party she was drinking and that the strippers came and danced on her. She remembers meeting C.S. at the party.

[218] She is not clear on whether it was that night or a later night that she and S.G. went to the dungeon where she performed oral sex on S.G. and the defendant videotaped it. H.C. says that she was pretty drunk and a lot of it is pretty blurry, but she does remember seeing the defendant by the door to the dungeon with a phone. S.G. was on the table and H.C. was crouched down performing oral sex on her. She is "pretty sure" that the defendant was moving around to get different angles.

[219] She was asked about the videotaping and the following day, and she said:

Q. Okay. You said you weren't sure if he was videoing.

A. I wasn't – I couldn't see what he was doing on the camera, but holding it towards us for a long period of time when we're doing that, you kind of get the idea that something else is going on.

Q. Did you say anything to him about that activity?

A. No.

Q. Why not?

A. Because I was, I was really distorted that night. I was really drunk that night and the next morning I remembered right away and went through his phone and seen it and that's when I kind of said, like, "Hey, like, you know, like, why do have this?" He's, like, "Hey, you don't want to watch it before you delete it?" I'm, like, "No, not really" and then I deleted the video.

Q. Okay, so the following morning, were you still at their home?

A. I think so, yeah.

Q. Okay, did you use the word "breakfast"?

A. Yeah, we.....

Q. Tell us about that.

A. We went out to Cora's, I think, and we went.....

Q. And who's the "we" in terms of going out to breakfast?

A. Me, S.G. and K.G. went out for breakfast, went out to Cora's and.....

Q. Was J. there?

A. No, J. wasn't there.

Q. Okay, so you go to Cora's. What happens?

A. We order – me and S.G. order what we want and K.G. orders and I pick up his phone and I start going through his pictures and stuff just because I wanted to see what he had on his phone.

Q. Yeah.

A. And then I came across the video and I, like, showed him, I was, like, you know, like, "What is this?" and that's when he said, like, "Oh, like, it's, it's, like, the video", he said, "You don't want to watch it?" He said, "You don't want to watch it before you delete it?" or something and I said, "No, probably not" and deleted it right then and there and asked.....

Q. Who, who deleted it?

A. I did, and asked him if he had iCloud too just so that I knew that there wasn't another copy that he could virtually get back or send around or whatever he was going to do with the video.

Q. Right. Did he answer you?

A. I'm pretty sure he said something along the lines of, like – I'm pretty – it wasn't, it wasn't at breakfast that he said this, but I'm pretty sure it was some point later on in the day he was on the phone with David C. and he said something about, like, "Oh, that's why you send it to a bro" and, like, you know, "That's why you pass it on."

Q. So where were you when he was on the phone with David C.?

A. We were in his house in Milton. I was standing in the kitchen, I believe, and he was in the living...

Q. Okay.

A. ...room talking.

[220] She said she did not want to be videotaped and no one asked her if they could videotape her.

[221] She said she saw on his phone a blurry still image of her crouched down in front of S.G. She can't remember if there were any faces visible, but she did not think so.

[222] She spoke to S.G. about it later and she was shocked.

[223] She was shown some texts in Exhibit 25 from April 12th, 2014 between her and S.G. She testified:

Q. Okay, so the first one at 3:07:19 p.m., "Tell K.G. it's not right to take videos when we get back"?

A. Yeah, that was me telling her to tell K.G. that.

Q. Okay, the next one says, 3:07:20, "I'm pissed", you're saying you think that's S.G.?

A. I'm – I think.

Q. The next one again only a few seconds later, "I think he sent to someone too", "...sent it to someone too"?

A. That was me.

Q. You think that's you? Then at 3:24:48, "He would never send it to anyone if it is a video he's not like that"?

A. That was S.G.

Q. Did you believe that when she said that?

A. No.

Q. Why not?

A. Because I kind of – like, I heard the, I heard the remark that he made myself about, like, "Oh, that's why you send it to a bro" and immediately I'm just thinking he has it sent around to a bunch of people and there's no deleting all of it because now it's just sent around.

Q. Okay, do you recall – did you have any further discussion with K.G. after those texts?

A. I don't remember whether we did or not.

[224] H.C. said in relation to Exhibit 52A, which has a capture date of March 22, 2014 at 7:12 p.m. and is the picture that shows her buttocks after a whipping, that S.G. wanted to take a picture of her after she had whipped H.C. in the dungeon. This is an important piece of evidence because it directly contradicts S.G.'s evidence that it was not taken by her and that she does not have a door like that in her house. It is obvious that S.G. was not being truthful when she denied taking this picture as she did in cross-examination. Although H.C. says she is not sure S.G. took it or if the defendant did, an examination of the mirror shows the person taking the picture with Mr. G.'s camera was not the defendant as it appears to be a female reflection in the mirror.

[225] She said pictures like this were taken "pretty often" and that S.G. or the defendant would take them. Similarly, H.C. took pictures of S.G. after BDSM sessions.

[226] H.C. said that between the birthday party and the defendant's arrest, the defendant decided he was going to get involved and asked for her and S.G. to do sexual things with him. H.C. said she felt uncomfortable about this. S.G. was present when H.C. gave oral sex to the defendant, which she agreed to do. She said she was going through a lot at home and they were giving her a place to stay.

[227] She said she was never sexually involved with the defendant when S.G. was not present, but was sexually involved with S.G. when he was not present.

[228] The night before the defendant was arrested, the three of them had gone to The X Club. By this point in time she had gone to that club at least five times with them.

[229] That night at The X Club, H.C. was drinking and got "past her limit". S.G. wanted to have sex with a couple that they had just met at the club that night, but H.C. did not want to. The defendant sided with H.C., and S.G. threw a "hissy fit" and got very upset that the defendant had sided with H.C.

[230] They all went home and H.C. went upstairs to sleep and she was "pretty sure" S.G. had remained on the couch. She can't remember if the defendant was asleep when she went upstairs.

[231] When she woke up the next morning she could not find S.G.

[232] When they could not find S.G. the next morning, she and the defendant were calling her name and called her on her cell phone and texted her.

[233] She was leaving with the defendant when the police stopped his car and arrested them both. She was taken to the police station but was released that day without charges. She had told the police about what she knew and she gave a videotaped statement to them under oath on May 6, 2014. She had not heard from S.G. before she gave the police a statement on May 6, 2016.

[234] She was then shown Exhibit 51 and changed her evidence to say that she had these conversations with S.G. between the arrest date and her statement date. She was trying to get information from S.G. about what had happened because she was curious about everything.

[235] She said that at this time she had loyalty to both S.G. and the defendant.

[236] She remained in contact with S.G. after she gave her statement. She thought that S.G. wanted to see her and have a drink, but then she received a Facebook message from S.G. saying, "I know that you're talking to K.G." and "You're a lying bitch".

[237] That was the end of their communications. She was blocked from S.G.'s Instagram, so she used her friend D.A.'s Instagram to see if she could access S.G.'s account as the defendant wanted her to get some pictures that S.G. had posted on Instagram showing S.G. smoking marihuana. He said he wanted these for the custody dispute in family court. H.C. got these and sent them to the defendant

[238] During the April 20th to May 6th series of texts in Exhibit 65 there are instances of Mr. G. suggesting that he and H.C. meet. She did meet with the defendant on at least 3 occasions at restaurants where he gave her money for her continuing cooperation. She also would have other meetings with him and he had her up to his house prior to his second arrest.

[239] Ultimately, her evidence was that they met shortly after the police raid and he showed her where the grow-op was in the back shed.

[240] She also said that there were 3 occasions where they met at a restaurant after he was placed on a recognizance to have no contact with her. On each occasion she would take a friend. She said that he was asking her to not say anything about the cocaine or the video and that he would give her money for doing so and that he did, indeed, give her money.

[241] He told her it would all work out and that he would take her and C.S. on a holiday after it was done.

[242] Ultimately, he used C.S. to contact her, to be a go-between and to arrange to get money to her. This was because he was arrested on the make child pornography charge and the trafficking cocaine charge involving her.

[243] H.C. testified that C.S. was very much involved in this scheme and would tell her what to say in court. She even went so far as to move very close to her and they would keep in touch regularly. She would hang out with C.S. frequently and they would smoke marihuana together and drink. She said the marihuana came mostly from C.S.

[244] She said that C.S. was in constant contact with her, including the weekend prior to her trial, and tried to contact her on her way to court when she was scheduled to testify.

[245] She said she was afraid of the defendant and was fearful of not cooperating with him. Mr. G. had mentioned something about the fellow dying who was taking responsibility by signing for him for the grow-op. This terrified her.

[246] Ultimately, she gave a statement to the police about this on the eve of her testimony in this trial and they took investigative steps to try to confirm this.

[247] She explained her flirtatious texts with Mr. G. after his first arrest and up to his second arrest as attempts to enable her to keep close to him so that he would not think that she was not cooperating with his attempts to get her to assist him in his trial as she had concerns for her safety. She gave extensive evidence about these meetings and about the money that she received, but at this point it is not necessary to set out that evidence in great detail as it was dealt with in Mr. Grill's cross-examination.

[248] The allegations that she made against both the defendant and C.S. were very serious and concerning.

D. Ms. Hoffman's Examination in-Chief of H.C.

[249] Ms. Hoffman established that when H.C. went up to visit Mr. G. with D.N. after his first arrest he showed them the grow-op in the back of the shed and she found that there were still some marihuana plants there. He encouraged them to take what they wanted, so H.C. then took some marihuana off one of the plants and smoked it later in the day. H.C. was unaware of marihuana in the shed prior to this first visit.

[250] H.C. was then questioned about the cocaine that S.G. had purchased when she and H.C. went to London around the time of the birthday party. She and S.G. drove out to London and S.G. went to a parking lot and made the purchase from a fellow by the name of Dean. She thought that she had purchased about 1 gram of it and that would have been worth about $80.

[251] They then drove back to the Griffiths' residence and started to do some cocaine there. On the first occasion it was upstairs in the master bedroom's ensuite bathroom. She said that she was pretty sure that K.G. was in the house when they did that.

[252] She said they usually did it in the bathroom. She would see the baggie come out of the defendant's safe. She would see S.G. get it out of the safe.

[253] H.C. recalled on the night of the arrest she had done some of that cocaine. It was in the safe and S.G. got it out and S.G. used it as well.

[254] She said that at this time in her life she was using cocaine. She described herself as not a heavy user, but she was using it at the time "more than social".

[255] She estimated that she had used the cocaine from the London purchase 4 or 5 times prior to the arrest.

[256] She stated that she never consumed cocaine in the dungeon.

[257] When she was asked if she remembered if the defendant had ever put the cocaine back in the safe, she replied:

Q. Do you specifically remember any occasions where K.G. brought cocaine back to the safe?

A. I think I remember one time that he brought it out from the safe actually...

Q. Okay.

A. ...and into the bathroom and put it out on the counter for us because S.G. liked to go a little bit overboard with it.

Q. Sorry, S.G. used to....?

A. S.G. used to go a little bit overboard with it.

Q. Okay, so just speaking about that occasion, what do you remember about that time that you, that you think K.G. took it out of the safe? Just.....

A. I remember me standing in the bathroom and him walking in with the bag and pouring some onto the counter for me and S.G. and then said, "There you go", like, "Have fun."

[258] She estimated that he had poured out at least one half of a gram on that occasion and there were two lines poured out.

[259] She said that the safe was in the defendant's closet and that S.G. knew the combination of the safe, but she did not.

[260] She then said that of the 4 or 5 times that they used cocaine after it was purchased in London, S.G. and her and the defendant would then go to the dungeon where she and S.G. would be whipped and would engage in sexual acts.

[261] She stated that she had a charge for possession of marihuana, but that it was in Peel Region and was dropped the week before she testified.

E. Cross-Examination of H.C. by Mr. Grill

[262] As Mr. Grill did with S.G., he commenced his cross-examination of H.C. by explaining to her what his road map was for her cross-examination and how he was going to suggest that she was lying about the alleged threats and bribes that she said Mr. G. did and about the nature of her relationship with Mr. G. throughout the time up until his first arrest, and then after his first arrest until his May 2, 2014 arrest.

[263] Mr. Grill at the end of the day showed to me in a concise and skillful manner that H.C. was a witness whose credibility and believability was shattered by this cross-examination and for the most part her evidence was plagued with inconsistencies, mistruths and was, on the whole, incredibly unreliable. She was hostile to the defendant and at one point made a physical gesture towards him that is commonly used to tell someone to "fuck off". She directed this gesture of flicking her hand under her chin and was seen by Mr. Grill doing so. When she was confronted with this by Mr. Grill her answers show both an animus against the defendant and also against Mr. Grill.

[264] The interaction between Mr. Grill and H.C. unfolded as follows:

Q. Okay, so can I ask you a question? When somebody takes their hand under their chin – and I'm making a motion right now and describing it for the record – and does this, a flicking of the hand across their chin towards somebody, what does that mean to you?

A. Flick off.

Q. Pardon?

A. Flick off. Flick off.

Q. Flick off? You can use the real word.

A. Fuck off.

Q. Is that what it means to you?

A. Yeah, that's what it means to me.

Q. When you finished testifying the last day you were here, when His Honour had left the bench and you were leaving the courtroom, you turned to Mr. G. and made that motion, correct?

A. I think it was more towards you, but yeah.

Q. Well, was it towards me or Mr. G.?

A. I think it was more towards you, I guess.

Q. Well, I'm going to suggest to you, you turned around and did it to Mr. G. and there are witnesses who saw you do it.

A. Mm-hmm.

Q. Agreed?

A. Agreed.

Q. Okay, because you're scared of what Mr. G. can do to you or people he would send to you, don't you think making that type of gesture to him would only enrage him more?

A. He's in a glass container right now.

Q. But you just finished saying he can get out.

A. Not right now.

Q. No, but eventually. Isn't that what your fear is and isn't that what you told the police officers?

A. Hopefully he doesn't eventually get out.

[265] I am able to put some weight on a witnesses' demeanor when testifying. In the context of H.C.'s evidence of how fearful she was of the defendant, her actions in and outside of court were inconsistent with that assertion. The following exchange is indicative of that:

Q. During the course of your examination in-Chief when the Crown Attorney was asking you questions, often times you would lean over the witness box and look over to Mr. G. and grin at him. Do you recall that?

A. I wasn't grinning.

Q. Why were you leaning over the witness box and looking over at him?

A. It felt like he was looking at me. I wanted to see if he was.

Q. You felt like it? You just had some feeling? Because you couldn't make eye contact with each other where you were.

A. You don't get feelings when someone's staring at you from behind you?

Q. Through, through the, through His Honour's bench, through wood?

A. He could see over top.

Q. Is that, is that your explanation as to why you would lean over the witness stand and look over at him?

A. Yes.

Q. I'm going to suggest to you, ma'am, that those are actions also inconsistent with you being fearful of him.

A. No.

Q. Okay. On – do you recall an afternoon on Monday June the 19 th , so that is – we're the 28 th today – nine days ago when you were testifying? Because I know you've testified over a few periods. And there was an occasion after court when you saw the paddy wagon leaving the courthouse in Burlington?

A. Yes.

Q. Do you remember that afternoon? Do you remember that I was in the hallway about six feet away from you? Your boyfriend was there?

A. I remember my boyfriend there, yeah.

Q. Do you remember what you said as the paddy wagon was passing?

A. Something along the lines of, "I hope he gets treated like shit in there."

Q. What you said was, "Bye, K.G.. Have fun being fucked up the ass."

A. Yeah.

Q. You said it pretty loud?

A. I didn't say it pretty loud.

Q. I'm going to suggest you said it because you wanted me to hear it and you wanted me to tell him.

A. No. Just because I - that's what I want to happen.

Q. You knew I was there six feet away from you, correct?

A. I know my boyfriend was there.

Q. Did you know I was there?

A. No.

Q. What, what, what made you hate Mr. G. so much that you would want him to be raped in jail?

A. Everything that he did to me and S.G.

[266] H.C.'s testimony was inconsistent and contradicted by other evidence. She demonstrated a pattern of inflating her stories. Her allegations regarding Mr. G.'s bribes and threats do not make sense on their face and were also inconsistent and exaggerated.

[267] Although demeanor plays some part in my assessment of H.C.'s testimony, her testimony was riddled with inconsistency. As with S.G., there were numerous inconsistencies in H.C.'s evidence. The three examples below are illustrative, but not exhaustive. They are taken from the written submissions filed by the defence and I accept and concur with them.

[268] First, H.C. testified that the night Mr. G. allegedly filmed her and S.G., she could see Mr. G. moving around at different angles and he was holding the camera towards them for long periods of time. However, in her statement to police she said that she "did not know the camera was out" and did not know he was recording.

[269] Second, H.C. testified that Mr. G. sent to her a still image from the video that she thought was of her and S.G. On cross-examination when it was suggested to her that this meant that the photo should still be on her phone, she immediately changed her testimony and said that the image might have been on S.G.'s phone or she might have looked at it on Mr. G.'s phone.

[270] Third, H.C. testified that she was not attracted to Mr. G. and she was scared of him after the arrest. However, her text messages with Mr. G. from after the arrest, marked as Exhibit 65, indicate that H.C. was initiating contact with Mr. G. and flirting with him. She sent him sexual pictures of herself and her friend, D.N.

[271] H.C. apparently went to a concert with Mr. G.

[272] In court, she made a "fuck off" gesture towards him and then said, "Bye, K.G.. Have fun being fucked up the ass" when the paddy wagon containing the defendant was leaving the courthouse one day.

[273] H.C.'s friend, D.N., testified that H.C. asked Mr. G. to whip her in the dungeon when they went to Mr. G.'s house after the arrest and that she believes H.C. and Mr. G. had sex on that occasion. None of H.C.'s actions, or the other evidence, are consistent with her being afraid of Mr. G.

[274] As the defence submits, and I concur, H.C. repeatedly inflated her testimony as she gave her evidence. For example, when testifying about the first night she spent at S.G.'s and Mr. G.'s house, she initially said that she went to sleep when they got home from the club. Then she said that Mr. G. asked S.G. to show her the dungeon that night. Then she said that she spanked S.G. that night at Mr. G.'s request.

[275] Similarly, H.C. initially testified that she and S.G. used cocaine together on multiple occasions. S.G. took the cocaine from the safe where it was kept and provided H.C. with the cocaine. After repeated questioning about who provided the cocaine, H.C. suddenly remembered one occasion where Mr. G. put out the cocaine in order to control S.G.'s use of it (which does not make sense in light of her earlier testimony about S.G.'s free access to the cocaine). H.C. then added that they would go to the dungeon after using the cocaine.

[276] I accept and incorporate into my decision the defence submissions found in paragraphs 60 to 65 of their written submissions.

[277] H.C.'s allegations regarding Mr. G.'s threatening and bribing her were inconsistent, contradicted by other evidence and do not make sense. She did not bring these allegations to the police until she was set to testify on June 12, 2017.

[278] It is difficult to summarize her evidence on this point because it was so confused. H.C. changed her testimony over the course of her evidence regarding: the order of the meetings; the dates of the meetings; whether Mr. G. gave her money at the meetings; and what Mr. G. said to her at the meetings. She claimed to have a photographic memory, but told police she had a horrible memory.

[279] For instance, when she first gave a statement to police, she said she only met with Mr. G. twice. In her testimony she said that there were more meetings. She initially testified that, at the first meeting with Mr. G., she was with her friend Ms. N. or her girlfriend, D.P. (who she did not mention to police). She was with another friend, T., at a meeting that took place after the meeting with Ms. P. The meeting with Ms. N. was after the meeting with Ms. P., but could have been before or after the meeting with T. She eventually testified that the order of the meetings was T., then Ms. N., then Ms. P.

[280] Further, H.C. initially said Mr. G. only gave her money on two occasions, then on three occasions, then on every occasion she met with him.

[281] She also initially testified that Mr. G. told her not to say anything about the video of herself and S.G. She later added that he also wanted her to "keep [her] mouth shut" about the cocaine, and then that he asked her to "try turning the case around on one of the cops."

[282] Beyond these inconsistencies, H.C.'s story about the threats and bribery does not make sense. She says that he told her the person who mysteriously died was the person who signed for the grow-op, but Mr. Bester was still alive as of the latest date H.C. gave for her meeting with Mr. G. and Ms. P. He died on August 26, 2016.

[283] Further, on H.C.'s version of events, Mr. G. killed, or arranged to have killed, someone who was cooperating with him. This defies logic. There is also no apparent reason why Mr. G. would arrange to have someone else give H.C. money when he also gave her money himself every time he saw her.

[284] The defendant confirms that he did give her money on several occasions after his arrest. The reason why he did so is that she was constantly asking for money and was always broke. This is born out by the texts seen in Exhibit 65. She had even asked the defendant if she could get her and her friend D.N.'s nipples pierced and sent him a pornographic picture of D.N.'s breasts who was clearly under the age of 18 at the time. This is the only exhibit that contains child pornography at this trial and H.C. herself created it. The other image of child pornography in evidence is the picture that S.G. took of H.C.'s marks after S.G. had administered a spanking to her.

F. Evidence of N.C., D.N. and D.P.

[285] H.C.'s mother, N.C., Ms. N. and Ms. P. all testified in support of H.C.'s story about Mr. G.'s bribes and threats.

[286] H.C.'s mother's evidence added nothing to H.C.'s story.

[287] H.C. clearly asked Ms. N. and Ms. P. to support her story. She contacted both of them before the police did. She sent photos of the text messages between herself and Mr. G., which the police gave her, to Ms. N.

[288] Ms. N. described her memory of the meeting with Mr. G. as "very, very, very, very not, not good." She did not remember anything about the conversation at the meeting. She did not remember Mr. G. threatening H.C. at this meeting.

[289] Ms. P.'s memory of her meeting with Mr. G. was similarly vague. She apparently "tried to not hear as much information as possible," despite her girlfriend's fear of the situation, because she was uncomfortable.

[290] Her memory was clear, however, on certain points that corroborated H.C.'s initial statement to police about these allegations: that the meeting was around Easter of 2016, that Mr. G. seemed controlling or possessive and that he threatened H.C. This, along with the lengthy pause in Ms. P.'s recorded audio statement to police, support the idea that H.C. was coaching Ms. P. in what to say and providing her with information as submitted by the defence.

[291] Despite this, Ms. P.'s evidence, in fact, contradicted H.C.'s in several respects. Ms. P. said that H.C. asked Mr. G., "Are you threatening me?" H.C. denied saying this. Ms. P. testified that she did not see Mr. G. give H.C. any money, although H.C. eventually said she got money from Mr. G. at each meeting. Ms. P. recalled Mr. G. saying that the guy mysteriously disappeared, not died.

G. Evidence of K.G.

[292] K.G. testified on the trial proper and the blended hearsay voir dire.

[293] He was called as the first witness for the defence. He is 47 years old and works as a contractor. He agreed that other women were involved in the relationship he had with S.G. as a result of her intimate interest in both women and men. He never forced her to get girls for him, nor did he bargain with her in order to get women. He was fine with her desire to be able to go out and party and have fun with girls.

[294] He was not bothered by the fact that S.G. had relationships with other people without him.

[295] Mr. G. practiced BDSM prior to meeting S.G., but then said that she showed some interest in it after seeing a few things and their practice of BDSM progressed from there.

[296] He said that they always had safe words when practicing BDSM and those words were "Mercy Mercy Percy." He explained that one "Mercy" would be to continue with the BDSM action, two "Mercys" meant that the person was still good, but if the person said "Mercy Mercy Percy", that meant that the actions needed to stop.

[297] He also testified that they would write lists of theme-playing or role-playing activities that would "almost be like a, a script of a play" of the things that S.G. would like within the context of BDSM.

[298] Mr. G. and S.G. attended a Kink Week festival in Jamaica in October 2008 where they participated in BDSM, bondage, spanking and the like.

[299] Turning to the video of S.G. being whipped or spanked by Mr. G., he indicated that he did not even remember taking the video until he saw it in court. He said he took the video because she was not saying the magical safe words and he wanted to have evidence that she consented to the actions they were involved in, so he turned his camera on to record her answer.

[300] Mr. G. testified that he was not at all in control of S.G. as she had testified to, and that she always had a car and money. She left the house every day and went to bars and clubs without him. It did not bother him that she did that, but he would only go out on a Friday or Saturday night.

[301] Mr. G. said that he started taking videos of S.G. when she was "getting out of control" in the hopes that she would look back on the video the next day and observe her own behaviour. He added that when he turned the video function on on his phone that S.G. tended to calm down. "Without it running, it was pretty hectic".

[302] Mr. G. never pretended to be S.G. on Facebook. He did not have his own Facebook account. If they did have contact with someone on Facebook together, that person would know exactly who they would be talking too because "there was no need to pretend" and "we were in an open relationship with everybody". He testified that he never had an Instagram account.

[303] He agreed to using the 'sandktogether' email account that S.G. had installed on his phone. That email address was used for "swingers and stuff" and was the email address that was provided to people at swingers clubs on the weekends.

[304] Mr. G. agreed that he and S.G. had a 'Seeking Arrangements' profile, but he never pretended to be anyone but himself on that website.

[305] S.G. would use his phone when she would lose or break her own. He could not recall how many times he had purchased her a new phone, but he did not want her to be at home with the baby without one. He would often give her his phone and he would have to use a co-worker's phone until he got another one for her.

[306] He never threatened S.G. with physical harm and never told her he was going to kill her. He had no knowledge of the break-in into S.G.'s uncle's house until she told him about it.

[307] He never cut, ripped or poured Red Bull on her clothes.

[308] He did not break her computer. He indicated, however, that S.G. had thrown her computer on the floor and that is why it broke.

[309] He never assaulted S.G. outside of consensual BDSM play.

[310] Mr. G. indicated that S.G. purchased a Taser in Panama because she thought it was "cool" and "needed it for protection for some reason". He testified that she kept it in her purse all the time because it looked like a regular cell phone. He never used it, nor did he ever threaten S.G. with it.

(i) 2010 Assault Incident

[311] Mr. G. and S.G. attended a swingers club on a Friday night in 2010 while his sister babysat their six-week-old daughter. They partied until 2:30 a.m. or 3:00 a.m. S.G. wanted to go out again the next night because Mr. G.'s sister had said that babysitting was no problem and she offered her services liberally. Mr. G. did not want to go out the following evening because the baby was so young and he did not want to take advantage of his sister's babysitting generosity.

[312] They attended back at their home and S.G. was "just crazy mad that [she] wants to go out". He proceeded to prepare a bottle of formula for the baby, but testified that S.G. dumped the bottle of formula out onto the rug while jumping up and down. He called her father for assistance because her father could sometimes calm her down. To the contrary, Mr. G.'s attempt to get S.G.'s father's assistance enraged her even more. She proceeded to the front door whereupon Mr. G. closed the door on her and locked it out of fear of her throwing something at himself inside the home, as she had done in the past, or at the baby. He left her pounding on the door outside while he tended to their child hoping that she would eventually calm down. Instead, she called the police and he was ultimately charged with assaulting her, which charges were subsequently withdrawn or stayed.

[313] Mr. G. completely denied S.G.'s and H.C.'s allegations of domestic and sexual abuse or that he took a videotape of S.G. and H.C. engaged in sexual activity.

[314] Mr. G. testified that he and S.G. engaged in consensual BDSM play. They were also part of the "swinging" lifestyle, which meant that they involved other parties in their sexual relationship. Both Mr. G. and S.G. voluntarily engaged in swinging and BDSM, and S.G. appeared to enjoy it. Mr. G. never assaulted S.G. outside of consensual BDSM play.

[315] Mr. G. testified that he was not present for the BDSM session that resulted in the injuries pictured in Exhibits 11A, 19A, 19B, 19C, 19D, 55 and 56. The Crown suggested that the photos of S.G., Exhibits 11A, 19A to D and 55, were taken on November 30th, 2013. Mr. G. testified that this session involved S.G. and a woman named C.S.. Mr. G. was at another property he owned in Marmora at the time those photos were taken.

[316] Other pictures, however, were the result of consensual BDSM play between Mr. G. and S.G. The video at Exhibit 18, IMG_2817.MOV, is an example of Mr. G.'s and S.G.'s BDSM play.

[317] Mr. G. did not take a video of S.G. and H.C. engaged in sexual activity. He did show them a screenshot of a pornographic video showing two women engaging in oral sex.

[318] Mr. G. did not own a Taser. S.G. purchased a Taser on a trip to Panama and usually kept it in her purse. Mr. G. never used the Taser or threatened S.G. with it. The Taser was not located until the second search of the house, after S.G. had returned to the house to collect her belongings.

[319] Mr. G. never threatened to hurt or kill S.G. or her family members, nor did he ever ruin or damage her clothes. He did not control her movements, and he never pretended to be S.G. online or by text.

[320] Mr. G.'s testimony that he did not own the Taser or threaten S.G. with it, that he did not threaten to hurt or kill S.G. or her family members, and that he did not ruin or damage S.G.'s clothes was not challenged on cross-examination.

(ii) Mr. G.'s Evidence Regarding the CDSA Allegations

[321] Mr. G. denied that he possessed or produced marihuana, and that he possessed or trafficked cocaine.

[322] Mr. G. testified that he rented the back part of his "shop," a shed-type structure on his property, to a friend, John Paul Bester, who he believed had a license to possess a substantial amount of marihuana. Mr. G. and Mr. Bester signed a lease, which is Exhibit 8, tab 3 on the hearsay voir dire, and Mr. G. saw Mr. Bester's licenses, which are at Exhibits 3 to 6 on the hearsay voir dire.

[323] Mr. G. testified that he helped Mr. Bester set up his grow-op, something he had done for other legal growers in the past. However, as far as Mr. G. knew, the grow-op was never operational. There was never any increased hydro consumption. Mr. G. knew that Mr. Bester was storing marihuana in the shop, and believed that what Mr. Bester was storing was within the limits prescribed by his license.

[324] Mr. G. denied that he ever had cocaine, or gave cocaine, to H.C.. S.G. and H.C. did use cocaine which they got from a friend in London.

[325] Mr. G. testified in a straightforward manner. He readily admitted when he misremembered something. For example, he originally thought that he, H.C. and S.G. left The X Club, a swinger's club, around 2:30 a.m. or 3:00 a.m. on the night before his arrest, April 20, 2014. When confronted on cross-examination with the fact that photos taken outside The X Club and S.G.'s 911 call were before 2:30 a.m., he simply agreed that he misremembered the time, without arguing or becoming upset.

[326] Mr. G. did not tailor his evidence to favour himself. For instance, he testified that he did not have his phone with him on November 30, 2013. When confronted by the Crown with text messages at Exhibit 114 that, she suggested, indicated he had his phone on November 30, 2013, Mr. G. did not make up a story or an excuse. He simply said that he could not recall the messages:

I don't remember making these text messages and I know when I was in Marmora. If, if the picture is correct on that such date, I don't know if these came in the right – I don't know. I just don't have no recollection.

[327] Mr. G.'s testimony was unchanged on cross-examination despite days of intensive cross-examination. His testimony was not without its flaws, nor was his character.

[328] He does have a criminal record which I can and do take into account in my assessment of his credibility.

[329] K.G.'s criminal record is as follows:

• November 24, 1988 - theft over X 2, suspended sentence and probation for 24 months;
• November 29, 1993 - possession of stolen property X 2, suspended sentence and probation for 2 years;
• May 23, 1994 - mischief over $1000, suspended sentence and 1 year probation;
• February 21, 2003 - fraud under $5000, suspended sentence for 18 months;
• February 24, 2017 - breach of recognizance X 2, 15 days pretrial custody enhanced to 23 days plus 7 days concurrent.

[330] It is obvious that Mr. G. has little regard for Court-ordered conditions. His breach of recognizance charges are related to the recognizance that he was released on for these charges.

[331] He freely admitted frequently breaching the no-contact clause in his recognizance when he was charged with assaulting S.G. in November 2010.

[332] Mr. G.'s propensity to frequently record S.G. on his iPhone is disturbing and in many ways repugnant.

[333] His lifestyle is unconventional and his attraction to much younger women is also disturbing.

[334] His answers to questions on cross-examination and the evidence that he gave that his workers were texting this "Munroe" woman and sending sexually suggestive pictures of S.G. to her borders on incredulous. It is likely that he may have indeed sent those texts himself and was not being entirely truthful in his evidence on that issue at trial. Yet, I cannot discount it entirely.

[335] In re-direct Ms. Bingham directed Mr. G. to the texts between S.G. and Munroe that seemed to have a kernel of truth in them. This exchange went as follows:

Q. Okay. And she suggested that it was you and not S.G. sending these messages and therefore also sending the message to the person we've been calling Munroe.

A. Yes.

Q. Do you remember that?

A. Yes.

Q. Okay, and the answer that you gave was that you didn't know who sent all the messages with Munroe, could've been S.G., could've been people you work with?

A. Yes.

Q. All right, I want to ask you in particular about one exchange in this exhibit and it's numbered in the exhibit 55 and 56. Do you see those messages?

A. Yes.

Q. The incoming message is "Does K.G. have a big dick" and the response is "not to big but good size for my little thing." Is, is this a type of message that you would send to a woman that you're interested in?

A. No.

Q. And why or why not?

A. Well, I would never say "not to big", I would say, "Yeah, I have a big...." I, I don't know. I wouldn't downsize. It's just not something I would say, no.

Q. Okay.

[336] But overall, despite its warts, his evidence was fairly credible and was not shaken on cross-examination. Although I do not except every scintilla of his evidence as truthful, he was, for the most part, forthright and direct in his evidence and I believed most of it.

H. Evidence of C.S.

[337] C.S. was an important witness called by the defence. Ms. Bingham was the examining counsel for the defence.

[338] At the time she testified she was 28 years of age and had a daughter who was around the same age as the defendant's and S.G.'s daughter.

[339] She was employed in the retail industry at the time.

[340] She met the defendant and S.G. through the website "Seeking Arrangements".

[341] She met Mr. G. after she met S.G., but she was primarily in a relationship with S.G.

[342] C.S. and S.G. engaged in BDSM play. The photos at Exhibits 11A, 19A, 19B, 19C, 19D, 55 and 56 were taken during a BDSM session in the shop on Mr. G.'s property in November 2013. Mr. G. was not present. Exhibits 11A, 19A, 19B, 19C, 19D and 55 are pictures of S.G. Exhibit 56 is a picture of C.S. C.S.'s memory of the exact date these photos were taken was refreshed by screenshots dated November 30, 2013 which she sent to Mr. G.'s counsel. They are Exhibits 121-127 in this trial. The photos at Exhibits 34, 53A and 54 are photos of C.S. after BDSM play with S.G. on a different occasion. C.S. testified that Mr. G. might have been there for the session that resulted in those photos, but she could not remember.

[343] The point is that these photos depict injuries caused by S.G., not the defendant, and this is evidence that I accept as factually true. As such, it contradicts the evidence of S.G. that she was not a willing participant in BDSM activities and that she did not enjoy it but only did it because the defendant made her. She denied that she did any BDSM with females in the garage, but C.S.'s evidence disproves this.

[344] I recognize that the photos put into evidence do not have metadata attached to them. C.S. thinks that she gave some of the photos to Mr. Forte, an earlier counsel for the defendant, but she was not certain of that.

[345] Ms. Bingham was allowed to re-open her examination in-Chief on November 14th, 2017. She put in through C.S. two emails dated December 20th, 2016 and attached screenshots from an email account belonging to C.S. which was sent to Mr. Grill. (Exhibits 121 to 127). C.S. said she guessed she was asked for any photos that might assist with this case, so she sent what she had. She said what she had done was taken a screenshot of it with the time and date stamp at the top so he could see when it was originally taken. She was not sure if the one of S.G. was taken on her phone or was sent it to her by S.G.

[346] These screenshots do not permit a determination of when the underlying image was taken or if it was taken on the device that took the screenshot. For the dates/times depicted in the screenshots, it is unknown from that aspect of the underlying file data the dates/times would come from or whether that data is intact from when the photo was taken in the first place.

[347] Nonetheless, I am not accepting Ms. McGuigan's theory that someone else had sent those pictures on C.S.'s email or that there was intervention by a third party associated with the defence.

[348] The fact that there was no actual metadata associated with the photos is less than ideal, but I am satisfied of the fact that screenshots show the respective dates that they were taken on.

[349] The Crown submits that C.S. tailored her evidence with respect to the "glossy" photos (Exhibits 44, 45, 55 and 56), the emails and attachments (Exhibits 121 to 127) tendered during her evidence in-Chief and reopened evidence in-Chief. This was done each time to provide an explanation for the lack of the original electronic photos and/or more data about them that would conveniently suit the circumstances of the moment and support the defendant's alibi.

[350] I do not see this as part of a sinister plot as Ms. McGuigan would have me accept on the Crown's theory.

[351] C.S. struck me as an honest and sincere witness just trying to do her best when recalling events that happened years earlier. That she at times was mistaken about dates or whether events took place before or after one another does not detract from my positive impression of her as a credible witness.

[352] Her evidence had the ring of truth to it. I did not sense that she was adapting her evidence to favour Mr. G., and I certainly reject the suggestion that she was in cahoots with him or one of his associates to funnel money to H.C. or to interfere with the evidence given at this trial by any witness.

[353] There is no evidence that C.S. has a criminal record. If she had one, I am certain that Ms. McGuigan would have questioned her about it and she did not.

[354] It will not be necessary for me to summarize any of the evidence further. Any relevant evidence will be referred to in my analysis which follows.

ANALYSIS

[355] A central issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.

[356] One, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed.

[357] The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, Mr. Justice Iacobucci stated:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if a trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed....

[358] In this case, the defendant has testified and called evidence. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.). There, Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed.

[359] The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence, but his evidence raises a reasonable doubt with respect to his guilt.

[360] Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.

[361] In assessing a witness's credibility and reliability, I must consider the witness's perception, memory and sincerity. I must consider the witness's ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. In assessing evidence of a witness, I try to listen carefully to their testimony and make observations of the witness while they are on the stand. I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.

[362] As a result, I do not place as much weight on a witness's appearance or demeanour on the stand than the analysis of their evidence. I prefer to apply a threefold test to the testimony of the witness. I look to see if the testimony is internally consistent, that is, does the evidence fit together and is one piece of their evidence consistent with another; secondly, is the testimony of a witness externally consistent, does it fit with other known or accepted facts, does it fit in with other evidence or testimony that is accepted or believed; finally, does the testimony have a ring of truth to it, does it stand the test of common sense.

[363] In short, the real test is in determining if the evidence of the various witnesses is credible the question is, is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place, and in those conditions.

[364] I can accept some, all, or none of a witness's evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.

[365] Though I may not aver to every witness who testified in this trial or to every exhibit filed or every submission made by the parties, it does not mean that I have not considered that evidence in arriving at my judgment.

a) The Expert Evidence

[366] The Crown tendered the evidence of D.C. Craig Fallis as an expert in the forensic examination and reporting on for computers, cell phones and other digital media. The Crown's position is that his expertise included the interpretation of file data gathered by extractions and examinations generated by the Cellebrite and BlackLight forensic analysis programs.

[367] The defence position is that D.C. Fallis' evidence on this area should not be admitted. D.C. Fallis is not a properly qualified expert in the interpretation of file data and, specifically, that he cannot opine on the meaning of the "captured" and "created" times matching in a Cellebrite report. Further, this evidence is not sufficiently reliable.

[368] A properly qualified expert is a necessary criterion for the admission of expert evidence according to R. v. Mohan, [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36. D.C. Fallis, by virtue of his limited training and experience, does not meet this standard with respect to the interpretation of file data.

[369] D.C. Fallis testified that he was qualified as an expert in two previous cases, neither of which involved cellphone analysis. He does not have an educational background in computers. He took one course in using the Cellebrite program, and that was the beginner's course, not the more advanced course. The majority of the course was not focused on the interpretation of data. He was unable to opine on the programming that made the Cellebrite program work. Further, he did not know the meaning of the "modified" and "accessed" times, which are listed along with the "captured" and "created" times in the Cellebrite reports.

[370] Ms. McGuigan's written submissions in this area were helpful to me and I will use those as a basis for my analysis.

[371] The defendant faces several charges with respect to his restraining and administering blows to S.G.:

• Count #6 - between November 1st, 2013 and November 30th, 2013 - assault with weapon - bamboo stick/whip
• Count #7 - between November 1st, 2013 and November 30th, 2013 - forcible confinement
• Count #8 - between January 1st, 2011 and October 31st, 2013, assault with weapon - bamboo stick/whip
• Count #11 - between November 1st, 2013 and November 30th, 2013 - assault cause bodily harm
• Count #12 - between November 1st, 2013 and November 30th, 2013 - sexual assault - weapon - bamboo stick/whip

[372] Because expert evidence has enhanced relevance to this subset of charges specifically, it will be discussed against the backdrop of the evidence about these events.

b) Expert Evidence - Law

[373] The Mohan principled approach was organized and restated by Justice Doherty in R. v. Abbey. The proffering party must satisfy the Court on a balance of probabilities with respect that the four criteria are met - relevance, necessity, the absence of any exclusionary rule and a properly qualified expert.

[374] Evidence must be logically relevant - the requirement is that the evidence has a tendency as a matter of human experience and logic to make the existence or non-existence of a fact more or less likely than it would be without the evidence. Legal relevance is not only logically relevant, but also sufficiently probative to justify admission. To be admissible, the evidence must both be legally relevant and also be sufficiently probative to justify its admission despite the prejudice that may flow from its admission.

[375] Expert evidence on an issue that a jury is fully equipped to decide without that opinion is unnecessary and should register a "zero" on the cost benefit scale.

[376] Expert evidence is not always the result of scientific enquiry. Scientific enquiry is not a condition precedent to the admissibility of expert opinion evidence. The proper question is whether the expert's work has permitted him or her to develop a specialized knowledge about the issue that is sufficiently reliable to justify placing the expert's opinion before the jury. Some factors, such as error rates, are not germane to some kinds of expert testimony.

[377] Justice Doherty offered a non-exhaustive list of questions that may assist with the reliability enquiry for expert evidence that is not the result of scientific enquiry. He noted that the goal is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigour that characterizes the practice of an expert in the relevant field.

c) Expert Opinion of Det. Cst. Fallis

(i) Introduction

[378] Exhibit 40A explains the seizures of phones and a computer from the defendant, and consent examinations of H.C.'s and S.G.'s cell phones and sets out the Court and Tech Crime Exhibit Numbers that correspond to each. Some items/extractions from these were filed by the Crown and some by the defence - some of these were prepared by counsel, and no objection was taken to that. For some items there are electronic versions of reports, printed versions of reports and print-outs of the photos to which they relate (for example - Exhibit 17, 18 and 19(a) through (h)). For certain extraction reports, the Tech Crime Exhibit Number is contained on the face page of the report, as well as in the description of the tendering counsel at the time. For others, the report does not contain this information and reference can be had only to the description of counsel at the time.

[379] During the evidence of several witnesses, various additional items were produced consensually from their current or past phones.

[380] Two Agreed Statements of Fact were filed with respect to technology issues - Exhibits 97 and 129.

[381] "Glossy" photos without date/time stamps were filed by the defence. The yellow sticky notes on the back of several of them were not adopted by any witness as having been written by them and, in the Crown's submission, are not part of the trial evidence.

[382] They are, however, the dates and the date range that is proffered by C.S., whose evidence I found to be credible and of much assistance to me in my analysis.

[383] The position (paragraph 32 of defence submissions) is that the photos at 11A, 19A to D, 55 and 56 appear to have been taken at the same time, and that the lighting, the implements on the table, the rope under the table, and the objects surrounding the table are the same.

[384] The Crown position is that Exhibits 11A, 19A to D and 55 were taken at close to the same time (all are S.G. photos). This is based on;

(a) the electronic data for 11A, 19A to D (there is only the screenshot of Exhibit 55 and nothing at all for Exhibit 56(a); and

(b) the content of the photos themselves.

[385] Indeed, based on both of these, the Crown says that the Court should readily infer that photos 11A and 19D are the same photo, and that it is possible that Exhibit 55 and Exhibit 19B are the same photo, just cropped slightly differently. Exhibit 19A, showing the worst injuries, is, according to the electronic data, taken approximately four minutes after the other photos for these events.

[386] The Crown position is that the Court will have to set this group of photos out next to each other and take a view directly. The Crown submits that the Court cannot conclude that Exhibit 56, the alleged photo of C.S. from November 30th, 2013, was taken at the same time as Exhibits 11A, 19A to D and 55. Exhibit 56 is very closely cropped to the body of the subject, unlike the S.G. photos where the viewer can see the table, background and implements. All that can be said is that it could be the same table and same type of rope. In Exhibit 56 you cannot see any of the background or the rest of room, barely any of the table surface, you cannot see any implements, and there is nothing particularly unique about the lighting. Photos 11A (found on S.G.'s phone - see Exhibit 28/29), and 19A to D (found on defendant's phone - see also Exhibit 17/18) are related to the defendant's alibi with respect to November 30th, 2013. The Court has before it data about these photos which was extracted by Cellebrite.

[387] I have examined those exhibits as suggested by the Crown and I am of the view that they are a photo of C.S.'s buttocks with whip marks on them, taken at the same time or around the same time as 11A, and 19A to D.

[388] The Crown's position is that there is a particular series of photos of S.G. that were taken on the defendant's (seized) phone on November 30th, 2013 and that one of them was later sent to S.G.'s phone. There are other photos for which the Court may make findings with respect to how they ended up on the defendant's phones, whether taken on them (and if so when) and/or sent to them (and if so when).

[389] It would assist the Court, in determining credibility, to have evidence independent of the civilian witnesses which can assist on (a) the issue of what photo/video was taken on what device, at what time and (b) whether a photo/video came to a device at a later time and in what manner.

[390] While this evidence does not alone determine who possessed a phone at a particular time, it can provide objective evidence which may assist the Court in supporting the evidence of a witness as to who had a particular phone at a particular time or in evaluating the credibility of the alibi evidence.

d) Evidence of Detective Constable Fallis

[391] The CV of Detective Constable Fallis was filed as Exhibit 98. He indicated that there were two additional courses in 2017 not included on his CV regarding android cell phones and physical extractions of them. On consent, he was qualified as an expert in the forensic examination and reporting on for computers, cell phones and other digital media. There was one contentious area where the Court's determination of his qualifications was blended with the trial evidence. The Crown's position was that this area of expertise includes the explanation and interpretation of file data gathered by the device extractions and examinations with the programs known as Cellebrite and BlackLight.

[392] Det. Cst. Fallis testified to the basic and fundamental nature of file data to his work; he deals with it every day. It is touched upon in every course he has taken. There is no course in metadata (data about data). That concept is fundamental amongst all of them, a fundamental property touched upon in all courses. Scenarios where a file is created elsewhere but turns up on a different device is something he sees frequently. Dealing with the transmission, downloading, storing of files created elsewhere, that is core to what he does with respect to the subject matter of his cases. Before he started taking forensic courses, as a citizen, he understood the concept of properties and data that could be found within that file. With regard to BlackLight and Cellebrite, he knows more than the average citizen would know about the interpretation of that data and how it is recorded. He is in the middle of the unit as far as seniority goes. His qualification courses are similar to his peers in his unit; the qualifications of other officers he collaborates would be similar.

[393] He explained that his Cellebrite course was in 2013. This is his primary tool for the analysis of cell phones. He uses this product daily. Updates to the software are frequent because product changes are frequent. To stay current, he goes to the website and understands what the updates are to the application. Taking ongoing courses in cell phones and cell phone technology also helps.

[394] He has access to forensic forums and other forensic investigators from whom he can seek assistance. He also has access to his own unit colleagues and can experiment with a device to see the effect of an action on file data, which is a tool he had used. He described another cell phone course he has taken since, which is a competitor to Cellebrite. Almost all of his cases are reflective of data and the information surrounding those files.

[395] BlackLight is a tool specifically for the examination of Mac computers. He has taken a course on its use. Examination of Mac computers is about five to ten per cent of his work. The same concepts of data about data, data about files, applies to that work.

[396] With respect to BlackLight and Cellebrite, the courses covered how to understand the headings under which file data is classified, how to understand it and the like. He has had occasion to apply that knowledge.

[397] As an example, Det. Cst. Fallis was referred to Exhibit 28, the consent examination report for S.G.'s phone. He explained the headings "metadata" and "additional file information", each of which relate to file information. The information under the "metadata" heading is information generated by the camera at the time the photo was taken. That information is put in there by the camera, by Apple. It is up to that company what it will include. The top half of the box, above the "metadata" section, is data that Cellebrite provides to him. The created/modified/accessed data would have been created by the operating system, when the operating system or the phone saw that file. So that is not necessarily information from inside the file but it's when it created the file, that was when the operating system produced those date/time stamps.

[398] Det. Cst. Fallis explained the UTC correction process (for Ontario). Where there is (UTC plus or minus zero) beside data, the UTC correction has not been applied, and either -4 or -5 would have to be applied in Ontario, -5 in standard time and -4 in daylight savings time. If the -4 or -5 is noted, the conversion has already been applied.

[399] Again looking at Exhibit 29 (the electronic version of 28), Det. Cst. Fallis advised that in the "metadata" section of the Cellebrite report on a photo, you will not see a UTC adjustment to the time. It will display the time and date setting at the time that the picture was taken. That is the time the camera embeds in the picture.

[400] With respect to the iMac (Macintosh computer), for any given file, the embedded data within that file will not change. What would change would be the program's ability to parse out what it finds in that file. There are circumstances where a file moves from device to device and information or "metadata" is lost. This could be accidental, incidental or deliberate by a person.

[401] With respect to the BlackLight report, file data about the photos or images is in some circumstances available in this HTML report. Looking at the second item down, IMG_1648.MOV, in the context of this video - "recorded date" means the date that the video itself was taken, on whatever device, that would be the date/time stamp that device had. Some do not have a recorded date. This could be because the device they were made on did not have that capability. Photographs in the BlackLight report - the terminology is "original date" - he understands that this is the terminology this program uses as the original date or the capture date the photo is taken; when it came into being as opposed to when it landed on, potentially, a different device. BlackLight is not providing a second "created date" for when these files landed on this computer. BlackLight is not reporting that data - it may be that it is not there or that BlackLight is not pulling it out.

[402] For Cellebrite, looking again at Exhibits 28/29, in the first image, 0908.jpg, the metadata indicates capture time June 2nd. 2014, 10:4:23 a.m. That is the date that was stamped into the picture when the camera took it. The information above, created, modified, accessed dates, those are created by the phone when the file is written to the device. When the metadata or the capture time is near to or identical within a couple seconds of the date that it is written to the phone, the inference can be made that the picture was taken with that camera. The amount of time between the time that the shutter took that picture and the time that it was written to the phone makes it not probable that it could have come from somewhere else. You have to also apply the UTC correction to the created time. The created/modified/accessed times are items that the operating system will use as it sees fit, what it modifies and how it modifies it. Generally what we see is that the created date is the date that that file is first written to that device. Both modified and accessed dates are proprietary. He cannot necessarily speak to how it has changed as they update their software.

[403] If the model of the phone being reported on matches the model of phone reported in the metadata, that increases the inference that the picture was taken with that device. There is no serial number that you can match, but it adds to the inference discussed above.

[404] If the model number is different, he would say the photo was not taken on that device. With respect to the "within a couple of seconds" explanation, he explains what the phone has to do to take, save, send and receive a photo, assuming it was saved instantly. He tried it in the office and it took ten seconds approximately and he was waiting for it. These were not formal controlled experiments. Speed could be affected by Wifi speed or image size, and he did not test with the specific devices from this case. He cannot give a definite number of seconds. There is no specific number, there is a range of what would be reasonable to expect and then, outside of that, it would be possible to infer it was sent from another device.

[405] Det. Cst. Fallis then applied this reasoning to several other of the Cellebrite report exhibits. Several of the photos had a file path that indicated they were received by text or SMS message. In one such case, under "additional file info" there was a phone number associated to it.

[406] He has not done any experiments to see what differences in metadata might show up if somebody upgraded their old phone and downloaded the old data onto their new device or if an image was sent from within the iMessage application versus taking an image with the camera application and sending it as a text.

[407] Ms. Bingham took two examples from Tech Exhibit 4, which was an iPhone 4S, in the form of Exhibits 99 and 100.

[408] Exhibit 99 for image 0574 had the camera model iPhone 4S, which does match the phone it was taken from (taking into account the UTC correction the dates/times match - 2014 dates).

[409] Exhibit 100, for image 0508, had the camera model iPhone 4, which does not match the phone it was taken from (taking into account the UTC correction the dates/times match - 2011 dates).

[410] Det. Cst. Fallis said that the explanation was that he infers this was caused by the phone having been backed up. That is an inference from his experience having looked at lots of these types of reports. There are limited areas where the inference he has discussed is not correct. There is no error rate and he cannot account for all the reasons the inference may not be correct.

[411] Ms. Bingham pointed out certain flaws and weaknesses in Det. Cst. Fallis' qualifications.

[412] D.C. Fallis testified that he was qualified as an expert in two previous cases, neither of which involved cellphone analysis. He does not have an educational background in computers. He took one course in using the Cellebrite program, and that was the beginner, not the more advanced course. The majority of the course was not focused on the interpretation of data. He was unable to opine on the programming that made the Cellebrite program work. Further, he did not know the meaning of the "modified" and "accessed" times, which are listed along with the "captured" and "created" times in the Cellebrite reports.

[413] Ms. Bingham also points out other factors in her written submissions such as D.C. Fallis' inference that if the "captured" and "created" times in the report match, the image or video was created on that device, is also not sufficiently reliable to meet the R. v. Mohan criteria.

[414] D.C. Fallis testified specifically that if the "captured" and "created" times are within a couple of seconds of each other, an inference can be drawn that the image or video was created on the device it was found on. This inference was based on his experience, from courses and from speaking with others.

[415] However, he was unable to say how many seconds would be too many to draw the inference that the image was created on that device. He conducted tests of this inference himself, but these were not scientific, controlled experiments. He could not say how often this inference would be wrong.

[416] Examples of this inference being wrong were put to D.C. Fallis on cross-examination at Exhibits 99 and 100. D.C. Fallis testified, "if the phone model is different, that, that picture was not taken on this device." However, in Exhibits 99 and 100, the "captured" and "created" times matched, but the phone make and model did not match.

[417] Without any indication of when this inference is true – that is, how many seconds difference makes the inference true or not true - or any sense of how often this inference is wrong, this limitation significantly limits the assistance that his evidence provides to me, but it can and will be attributed the weight that I give it.

[418] Ms. Bingham argues that the timestamps are of limited probative value even if I do accept that D.C. Fallis is qualified to give expert evidence about these issues, which I do. She argues three reasons for this, which I do accept.

[419] First, any and all of the timestamps in this case may fall within the error rate for D.C. Fallis' inference since the error rate is unknown.

[420] Second, the timestamps give no indication of who had the phone at the relevant time. Mr. G. testified that he did not take the photos at Exhibits 11A, 19A, 19B, 19C, 19D, 55 and 56. C.S. confirmed that Mr. G. was not present when those photos were taken. If those photos were taken on Mr. G.'s phone, then it must be that, as Mr. G. testified often happened, S.G. had his phone. In fact, one of the messages at Exhibit 115, which the Crown tried to suggest demonstrated that Mr. G. had his phone on November 30, 2013, actually indicates that S.G. had the phone, albeit on the morning of December 1. Message 1 reads: "Thanks you too going out for K.G.'s dads birthday, 85 if he ever gets out of bed lol xox."

[421] Third, the actual date the photos were taken is, in and of itself, only minimally relevant. Again, Mr. G. and C.S. both testified that Mr. G. was not there when the photos at Exhibits 11A, 19A, 19B, 19C, 19D, 55 and 56 were taken, whatever that date was. As I find the defendant and C.S. to be credible and reliable on this point, I prefer their evidence to that of either S.G. or H.C., both of whom I find to be not credible or reliable witnesses for the comments made in my summary of their evidence preceding this portion of the judgment.

[422] Therefore, under the Mohan and Abbey analyses, I find that D.C. Fallis is qualified to give expert evidence on the extraction of data from cell phones and computers and, although he is qualified to give opinion evidence regarding the interpretation of metadata from the captured cell and computer files, lessor weight is given to this. In the face of credible witnesses, I have given his evidence little to no weight, although I have considered it in my analysis.

e) The Expert Evidence re: BDSM

[423] Andrea Zanin was proffered as an expert witness by the defence with respect to BDSM practices and best practices. A blended voir dire was held as to her qualifications and her ability to assist the Court in this trial. Ms. Zanin's C.V. is Exhibit 119 filed on this trial and her report is Exhibit 120.

[424] The expert voir dire was blended with the trial. The defence proposes that the Court should permit and admit Ms. Zanin's expert opinion as to the following:

• what motivates persons to engage in BDSM
• the injuries in the photos and video
• the injuries that can arise from consensual activity
• the norms and "culture" of BDSM "culture"

Evidence of Andrea Zanin

[425] I rely on Ms. McGuigan's submissions in this regard as she has accurately set out most of the evidence of this witness.

[426] Photos were shown to Ms. Zanin by Ms. Bingham and she was asked to opine on whether or not the injuries were within the bounds of what she had seen in her experience as a BDSM practitioner and teacher. Ms. Zanin referred, in giving this evidence, both to her views on which kind of implements caused the marks and where the marks were on the body. (Before court, Ms. Zanin had seen some, but not all of the photos and video. She did not comment on these in the report because she was not asked to; it was not the topic of the report. She did not give counsel anything in writing about them.)

[427] When shown Exhibit 19A, Ms. Zanin was asked whether the bleeding was unusual to see. She indicated "this would be on the more severe end of the caning, but caning can draw blood absolutely. That's not - how would I put this - It's not, it's not common, but it's certainly not unheard of. A cane mark that draws blood means a very heavy cane stroke, a lot." She would stop short of that (applying a cane to the extent of drawing blood in this setting). As far as witnessing that live, herself, she would say probably once or twice, it is not that frequent. Implements other than a cane could draw blood in an impact play setting. A bullwhip could. She does not know what tools were used here.

[428] With respect to the pictures shown to her, as far as placement on the body goes, Ms. Zanin testified about the marks being focused on the fleshy part of the butt mainly, not being on either the tailbone or back of the knees, a few stray marks, fairly uniform, regular, and with a knowledge of a kind of technique. Some more extensive than others.

[429] Ms. Zanin testified in-Chief that one would have to spank pretty hard for marks to be lasting. Implements would be more likely to mark. Bleeding or breaking of the skin from spanking would be unlikely unless you are using something sharp like a cane, but it would not be impossible.

[430] Drawing blood should be discussed in advance and needs to be negotiated. Most "impact play" does not break the skin and it is not something that you would understand as expected in the same way as other activities, such as needle play. If they want skin to be broken, or if that is an okay thing, that should be discussed ahead of time. In certain circles, breaking of skin is stigmatized; in others, it is acceptable.

[431] She used the word "severe" in relation to Exhibit 19 because that would be on the high end for sure; it could lead to infection, scarring or emotional trauma on the part of a surprised recipient. If participants are using a cane, that is one of the few implements for which there is a higher risk of breaking the skin, so that would normally be discussed as part of the negotiation process. Someone who was not skilled in doing it would normally take precautions to not break the skin unless they knew it was okay ahead of time. As far as this sort of play goes, you can certainly avoid drawing blood if it is done in a particular way. The reasonably anticipated effects need to be part of the negotiation. It cannot be just the type of implement.

[432] When cross-examined, additional information was provided. Ms. Zanin has never testified in this manner or as an expert prior to this case. She is not aware of anyone else who has come to court to testify as she did. She is not part of a community or practice of people who do court-related work commenting on photos of injuries in this context. To be a non-medical person looking at a photo and explaining how the injuries were caused and what they are consistent with, that is new. She has never presented at a conference on the causes of injuries, published work on the subject or read publications on the issue in BDSM or medical literature.

[433] Ms. Bingham asked to address an issue in the absence of Ms. Zanin and advised the Court that she was not intending to rely on Ms. Zanin's opinion of specifically what implement caused the marks, but rather, in general, that the marks she observed were consistent with what she has seen as a BDSM practitioner. (Ms. Bingham is also not relying on Ms. Zanin's opinion about whether injuries were the same day or not or the time or age of any of the injuries).

[434] In continued cross-examination, Ms. Zanin indicated that during the course of her studies she never expected to be in court saying that these injuries were consistent with BDSM practice, and her gathering of experience over the years is not documented. She does not have access to a body of photos or anonymous data to rely on or that track the evolution of her knowledge. She has not kept statistics in terms of injuries to be able to explain it in that manner.

[435] The factors Ms. Zanin relied upon for her opinion as to whether or not injuries were consistent with BDSM were placement and what implement caused the mark. She is not equipped to assess anything further than that from the pictures. Much of what underlies the pictures and how the pictures came to be is completely invisible; there is no way for her to know.

[436] Ms. Zanin has a very different view of the limitations on consent from the legal standard the Court must apply and uses the term "injury" in a different manner than the Court would. She does not know what extent of injury would vitiate consent. She believes that only that activity which causes "permanent or debilitating injury would be out of bounds. As far as lasting or permanent, scars are not necessarily a bad thing, or seen badly. It is more about doing it on purpose and making sure it is wanted.

[437] She agrees that it is possible that there are some BDSM practitioners for whom breaking the skin is part of the attraction. She believes that for most practitioners there remains a confusion about the law or a sense that "the law doesn't get us anyway, so it is not really the standard by which most people are, are doing their play."

[438] She was once on a panel that led her to believe there was a gray area - that different lawyers interpret in different ways what is set out in the law. She believes that the legal standard should be consent. If she had her way, the legal standard would not be the thing that would make something legal or not, it would be consent and prior negotiation. Foreseeability of the injury would be relevant.

[439] She is an activist, both within her community and advocating for it. The term 'kink positive' is a way of getting away from oppressive frameworks that have prevented expression of this particular sexual conduct. That includes that the legal framework has been oppressive and a 'kink positive' activist would like to assist in changing that.

[440] Ms. Zanin has not done any clinical research with respect to motivation in the BDSM community. While there is clinical research on BDSM and in the area of psychology, Ms. Zanin has not read it "intimately". Her knowledge is based on personal experience and literature review. She agrees that in the practical realm a person's motivation may not be honestly stated and that a person may be the one doing the striking in BDSM play because they potentially (a) enjoy inflicting pain and (b) enjoy inflicting real injury, (c) enjoy photographing real injuries, and (d) viewing them later as the person who inflicted them.

[441] Further, Ms. Zanin agreed that a person could ally themselves with the BDSM community for reasons other than those she has listed, which she considers to be positive. You could be ill motivated and join the BDSM community for that reason exactly because you wanted to cloak non-consensual behavior and/or injurious behavior in the garb of positive and appropriate. Both of these are real and plausible motivations to say this is BDSM.

[442] Ms. Zanin in her report, which is Exhibit 120, on the first page states:

As a BDSM practitioner for my entire adult life, I concur with Healey's observation. The meaning of BDSM is slippery and always contextual. It is defined vastly differently depending on the field in which it is being considered-psychoanalysis, literature, law, medicine (particularly psychiatry and sexology), psychology, cultural anthropology, various stripes of feminist studies, BDSM and Leather communities themselves-and depending on the personal biases, theoretical frameworks and research interests of those conducting the inquiry. I do not believe myself to be unbiased, but as a sex-positive feminist and leatherdyke who is all to conscious of the ways in which "expert" discourses have functioned to marginalize members of sexual minorities throughout history, I take issue with any definition or investigations that does not take into account the experiences and vocabularies of those for whom BDSM is an enjoyable part of their lives.

[443] This causes me some concern about the impartiality of an "activist" being clothed in the cloak of an expert witness.

[444] There are no specific rules to be followed for someone to apply the label BDSM to what they are doing. There are multiple BDSM "communities", many, many hundreds of them. Each sub-culture is different. Individual practitioners may or may not adhere to community teachings on the subject. While there are teachings on the subject of consent, the practice of consent may not be as widely adhered to as the discourse.

[445] Much of BDSM play occurs outside public spaces and is unobserved. Lack of safe practice does not put someone outside the self-understood BDSM community; that would be more of an ethical question. There is no governing body, and no way to determine membership.

[446] Ms. Zanin does not think that substances should be consumed by BDSM practitioners (which is not necessarily everyone's opinion, though a common one). This is because she thinks that anything that compromises your ability to accurately feel or perceive what is happening with your body or to accurately perceive or understand somebody's communication presents an unnecessary risk factor. Furthermore, it interferes with the kinds of pleasure that many, if not most, people are seeking in BDSM. This applies to both those receiving and those giving blows.

[447] As far as substance use and BDSM, there are certainly a variety of opinions. When teaching, she would state her personal practice, but would not say it is a rule that needs to be followed by everybody in that level of strictness. She would tell folks that they need to make some active inquiry of the person to gauge their mental status if they have gauged anything. She does not consider it to be her job to regulate precisely what step on the path is right for any given person. There is absolutely a huge part of this community that is "live and let live" and that is reflected in how workshops are taught and how workshops are done.

[448] With respect to other impairing factors, sleep deprivation and compromised judgment would also be relevant. As far as emotional compromise, people need to discuss how they are feeling before they go into applying force. Emotions are harder to quantify than substances; it would be a risk factor.

[449] In terms of risk and power imbalance in BDSM relationships, it depends on the kind of power imbalance. Certainly there is a risk that something could be portrayed as BDSM but is really just the dominant person imposing their will on the weaker one. Lots of people practice BDSM for inappropriate reasons or use it as a way to cloak things that are not what she would understand as BDSM in spirit, even if they look like it on the outside.

[450] The Crown submits that Ms. Zanin's evidence ought not to be received as it is not sufficiently probative (neither legally relevant, nor necessary) and Ms. Zanin is not qualified to give the opinions she gave. Alternatively, only the portion of her evidence which describes BDSM activity generically should be accepted, but not her evidence with respect to the photos and video.

[451] The Crown asks the Court to consider the following:

• The fact that consensual (and non-consensual) activities involving spanking and striking with objects exists in the world is not in dispute
• The fact that safe words or advance communication (written or verbal) can be used with respect to such activities is not in dispute. In dispute is whether or not these were, in fact, used in the present case. Ms. Zanin cannot assist with this
• The fact the complainant herself and others who testified consented to certain activities is not in dispute. This is not a case where there is a single incident where the complainant says she would never consent to this type of activity
• With respect to the November 30th incident, to which most of the photographs relate, the defendant denies participating, and the "other suspect" Surman provided virtually no evidence either on knowledge of BDSM practice or implementation of same
• The defendant himself does not apply the BDSM norms or culture to which Ms. Zanin testified
• Evidence that other people elsewhere in the world have consented to certain activities does not make it more or less likely that the complainant consented (or not) in the circumstances described or that the defendant believed she did. Indeed, this evidence carries considerable risk of reasoning based on myths and stereotypes
• Evidence that others have engaged in consensual activities for particular reasons does not make it more or less likely that the complainant acted for those reasons. Indeed, this evidence carries considerable risk of reasoning based on myths and stereotypes
• The Court is well placed to decide issues of consent and disputed fact with respect to what individuals did or did not do
• Ms. Zanin's evidence amply establishes that there is, in fact, no meaningful body of external guidelines that the Court can apply to BDSM activities
• Ms. Zanin's evidence must be viewed with caution in light of her admitted activism and opinions
• Ms. Zanin's evidence establishes that testifying about photos in the manner that she did is without precedent. There is no community of practice with respect to this work and no peer review or quality control
• With respect to the photos, when the evidence the defence does not rely upon is removed, all Ms. Zanin has left to evaluate the photos with as regard to consistency with consensual BDSM is the placement of the marks

[452] Ms. Bingham, on behalf of Mr. G., submits that Ms. Zanin's evidence should be admitted and that she should be allowed to give expert evidence.

[453] The defence submits that Andrea Zanin's evidence satisfies the criteria set out in R. v. Mohan. It is relevant and necessary. She is a properly qualified expert in the principles and practices of BDSM. Her evidence on what motivates people to participate in BDSM and on the injuries in the photos and video at Exhibits 18, 19A, 19B, 19E, 19H, 23, 34, 54, 56 and 57A should be admissible.

[454] Ms. Zanin's evidence is relevant to show that a person could consensually engage in BDSM play that could result in injuries of the type seen in Exhibits 19A, 19B, 19E, 19H, 23, 34, 54, 56 and 57A.

[455] The comments of Justice Charron in R. v. K. (A.) are apposite:

The relevance of the evidence here is that it can provide the trier of fact with a more complete picture. For example, logic alone could lead the trier of fact to infer from the absence of timely complaint that no abuse has taken place. After all, if nothing untoward is happening to the child, it only makes sense that she makes no complaint. And, that may indeed be the case. However, what the expert opinion evidence can show is that there are other possibilities. Mr. Fair's evidence discloses that, for several reasons, it is not uncommon for a child victim of sexual abuse to disclose the abuse sometimes only years after it has occurred. This evidence can assist by simply alerting the jury to the fact that more than one inference can be drawn from the failure to disclose the abuse at the time it occurred. Therein lies its probative value.

[456] In this case, this Court could look at S.G.'s injuries and infer that no one would voluntarily agree to be injured in that manner. Ms. Zanin's evidence shows the other possibility – the "more complete picture" – that these injuries can arise from consensual activity.

[457] For similar reasons, Ms. Zanin's evidence is also necessary. BDSM is a practice with its own culture and norms. Its practices and norms are not a matter of common knowledge. If this was, for instance, a case of injuries sustained during a hockey game, the defence would want an expert to opine on the norms and rules of hockey and common injuries that could be sustained during play.

[458] The fact that the norms of BDSM are not written down anywhere, or that Mr. G., S.G. and the other involved parties may not have adhered perfectly to the rules all the time, does not mean that an understanding of the norms and rules is unnecessary to properly evaluate the evidence in this case.

[459] Further, because BDSM is a practice that can involve the deliberate infliction of pain and injury, this Court might naturally ask itself: Why would anyone consensually engage in these practices? Ms. Zanin's evidence provides a fulsome answer to this question.

[460] Ms. Zanin is a properly qualified expert. Her CV is Exhibit 119 in this trial. Her academic research centres on one branch of the BDSM community. She has years of experience as a practitioner, educator and writer in the field of BDSM. Her testimony demonstrated that she is extremely familiar with the academic literature and research in this field.

[461] Ms. Zanin also testified that the injuries shown in Exhibits 19A, 19B, 19E, 19H, 23, 34, 54, 56 and 57A and the video at Exhibit 18, IMG_2817.MOV, are consistent with BDSM play. This supports Mr. G.'s testimony that he and S.G. engaged in consensual BDSM play, as well as C.S.'s evidence to the same effect.

[462] After having considered all of the submissions of the defence and Crown, I am of the view that Ms. Zanin should not be qualified as an expert witness in the areas that the defence seeks to have her qualified. She displays a subtle but important bias and a danger that she is more an advocate than a non-biased and independent expert witness.

[463] Her evidence only assists me in a more generic fashion as a non-expert but someone who has had long-term involvement in the field of BDSM as a practitioner.

[464] Her evidence is only of limited assistance to me in this trial overall. That she has seen injuries similar to the ones in evidence through photographs and video in this trial that were consensually inflicted is of some limited assistance to me, but after hearing the other aspects of this trial, for instance, that S.G. and the defendant attended a BDSM workshop in Jamaica and how common these practices are, is something that I can glean from the evidence before me and that I can assess objectively and dispassionately.

[465] There is no real in contention in this trial that safe words are best practices in BDSM situations but that they are not always used. The fact that ideally people engaged in this activity should be alcohol and drug free but sometimes are not is not crucial to my analysis. S.G. does not assert that she was too intoxicated or incapacitated to engage in the activities that she did. She says simply that she did not engage in the activities that are at the heart of the Crown's case and gave no consent to have that force applied to her.

[466] That is an issue that can be determined by the examination of the credibility and reliability of S.G.'s evidence, which I have made clear I have great trouble accepting her as a credible and reliable witness at all. (see my summary of facts and comments on her credibility in that summary).

[467] As I have stated throughout this judgment, I reject her evidence as inherently unreliable and motivated by animus and an agenda. She was in no fear of the defendant despite the power and age imbalance. I have found as a fact that she was a willing participant in these activities, both with Mr. G. and others.

[468] For these reasons, I dismissed the Provincial charges on December 21, 2017 and ultimately released Mr. G. from custody. Any of the Provincial charges that depended in large part on accepting the evidence of S.G. or H.C. do not rise even close to the level where I would be confident in finding the defendant guilty of those offences beyond a reasonable doubt.

The CDSA Charges

[469] Turning to the CDSA charges, however, merit exists in some of those charges as they do not entirely rest for the most part on accepting the evidence of two witnesses who I have found to both have serious credibility issues.

[470] With respect to the possession of the small amount of cocaine (0.5 grams), it was found in Mr. G.'s closet by his shirts. Evidence exists that it was kept at times in his locked safe.

[471] With respect to the cocaine possession, Mr. G. maintains that S.G. and H.C. drove Dean B. back to London after her birthday party in order to purchase cocaine and that he had no part in the transaction or eventual use and storage of the substance.

[472] Mr. G. did agree, however, that the police located the cocaine in the upper closet where he had his casual shirts. He testified that S.G. had not used cocaine the whole time they were a couple except for this sole London purchase. This corroborates S.G.'s testimony that she did not use cocaine significantly during their relationship.

[473] Contrary to the complainants' evidence, Mr. G. denied wanting to control access to the drugs due to S.G.'s past addictions or to receive benefits from either woman. From the July 20, 2017 transcript, after several denials of putting cocaine back in the safe on prior occasions:

Q. And H.C. didn't know the combination to your safe, right?

A. No, I didn't tell her the – no, no I don't think so no.

Q. Just like the grow-op, you don't want H.C.to know too much yet?

A. Of course.

Q. Yeah. Because it could be – she'd be going to get your money or your cocaine, right, in this case?

A. Yeah, I agree.

Q. Or steal it, go and get your grow?

A. You, you never know. That's right.

[474] Evidence also exists that he knew that S.G. had purchased cocaine in London. Although I accept the evidence that the defendant had knowledge of and a degree of control over the cocaine, I reject the evidence that he would supply it or give it to S.G. or to H.C. for "sexual favours".

[475] However, the degree of knowledge and control that I am satisfied of is sufficient to find him guilty of the offence of possession of cocaine contrary to s. 4(1) of the CDSA. I find that he was in joint possession of the small amount of cocaine together with S.G.

[476] I do not find, however, that he facilitated or set up the purchase of the cocaine in London by S.G. She was entirely capable of obtaining money from him, without telling him what that money was going to be used for. She knew Dean B. and he had attended at her birthday party and it was before or shortly after her birthday party that she attended in London with H.C. to purchase 1 gram of cocaine for eighty dollars. It was Mr. B. who facilitated the purchase of the cocaine by S.G. from an unknown person in London.

[476] I find that it was S.G. who would retrieve the cocaine from either the safe or another location in the home and then jointly use it with H.C. That the defendant was aware that she was doing that is given. It was not necessary to "give" cocaine to H.C. as a vehicle to get her to perform sexual favours for him. It was common for S.G. and H.C. to ingest cocaine and then go to the dungeon where the defendant would whip or spank one or both of them. This, I find, sexually turned on not only the defendant, but also S.G. and H.C. as well. They were all willing participants in this activity and the defendant did not need to urge the women to engage in this type of behaviour.

[477] I would have no hesitation in finding S.G. guilty of the offence of trafficking cocaine contrary to s. 5 (1) of the CDSA were she charged with that offence, but I have a reasonable doubt that the defendant at any time committed the same offence.

[478] He, therefore, will be found not guilty of the count alleging trafficking in cocaine contrary to s. 5(1) of the CDSA.

[479] With respect to the possession of the small amount of cocaine (0.5 grams), it was found in Mr. G.'s closet by his shirts. Evidence exists that it was kept at times in his locked safe.

[480] The defence argues that the affidavit of John Paul Bester should be admitted for the truth of its contents. The affidavit is Exhibit 1 on the hearsay voir dire.

[481] Mr. Bester's affidavit is hearsay. It does not fall into one of the categorical exceptions to the presumptive inadmissibility of hearsay evidence, but it does meet the criteria of necessity and reliability set out in R. v. Khelawon and should be admitted on that basis.

[482] Since this is defence evidence, the hearsay rules should be relaxed to prevent a miscarriage of justice.

[483] Necessity is established by the fact of Mr. Bester's death. Mr. Bester's death certificate is Exhibit 8, tab 3 on the hearsay voir dire.

[484] There are also sufficient indicia of reliability to admit Mr. Bester's affidavit. Other evidence substantially corroborates the facts contained in the affidavit. Mr. Bester's efforts to move his licenses to Ontario are corroborated by the affidavit of J.C. Wooff, which is Exhibit 8, tab 4 on the hearsay voir dire. As will be discussed further below, the fact that he was using the shop to store, rather than produce, marihuana was corroborated by the testimony of the drug expert, D.C. Jay Kenzaki. This was all corroborated by Mr. G.'s testimony.

[485] Mr. Forte testified on the hearsay voir dire because at the time he was Mr. G.'s counsel. He interviewed Mr. Bester and put his words into the affidavit that he then commissioned. I found Mr. Forte to be a very credible witness. Mr. Forte's testimony provided further indicia of reliability surrounding the drafting and swearing of the affidavit.

[486] Mr. Forte took a copy of Mr. Bester's photo identification to confirm his identity. He met with Mr. Bester alone, without Mr. G. present. He advised Mr. Bester of his right to seek independent legal advice before swearing the affidavit and cautioned him regarding the legal consequences of swearing a false affidavit. Mr. Bester presented to Mr. Forte as forthright and truthful. He did not appear to be under the influence of any drugs or to have any mental disability.

[487] Mr. Bester's affidavit is critical to Mr. G.'s defence to the CDSA charges. It helps to "provide the clearest possible picture of what happened at the time of the offences" and should be admitted.

[488] Ms. Hoffman opposes the hearsay application to allow the Bester affidavit to be admitted and relied upon for the truth of its contents.

[489] She points to the recent hearsay case, R. v. Bradshaw 2017 SCC 35, threshold reliability concerns can be overcome if corroborative evidence shows the only likely explanation for the hearsay statement is the declarant's truthfulness or accuracy about the material aspects of the statement.

[490] The Crown argues in this case there are insufficient guarantees of inherent trustworthiness in the Bester affidavit to pass the threshold reliability analysis. An inability to cross-examine on significant concerns and other important issues should be considered. This list is by no means exhaustive:

• Mr. Bester at para. 5 claims all of the harvested AND unharvested plants. He had no license to grow in Ontario. Then at paras. 11 and 12 claims he never began production in the shop. This is extremely inconsistent and not borne out by the evidence before the Court.
• at para 10 he claims he applied to Health Canada to change his PUPL to the Griffiths property. Health Canada has no such document; they only received 4 identical letters from a lawyer May 8, May 16, May 27 and June 10, 2014. Never is the Griffith's specific property mentioned. No licenses were to be amended in any event after Sept. 30, 2013. Again, this is inconsistent.
• she states that it is unclear if he recognized the full legal implications/repercussions that may have flown from the affidavit; in fact wants all his "medicine" back.
• at para 13 quotes his prior MMAR amounts, not mentioning as of March 31, 2014 he was now only allowed to possess at any given time 150g cannabis (Allard)
• it does not mention letter from Health Canada sent to his lawyer's office dated Sept. 17, 2014 referencing the Allard injunction and reminding him his ATP is now 150g cannabis and no production licenses will be amended/renewed.
• at para 13 states he moved his product from Alberta to Ontario on "multiple trips". Mr. Bester's ties to Ontario are unclear, there is no corroborative evidence of trips back and forth from Alberta to Ontario. Counsel, Mr. Forte has a notation that Alberta was the "fixed address".
• He claims the police seizure amounts of cannabis are "relatively accurate" but does not explain why there are 26 kilos of total cannabis product when his ATP was then reduced to 150 grams. Even just considering the bud alone (minus stem weight) is still almost 8kg cannabis.
• the Affidavit is dated almost 2 years post-offence (February 26, 2016) and is not contemporaneous or spontaneous. It is in fact in contemplation of legal proceedings (there has been time for Mr. G. to give details to Mr. Bester).
• his mental state at the time of the affidavit cannot be explored; there is evidence he died from alcohol abuse just 6 months later (August 27, 2016) in addition to other health issues that were outlined in his application to obtain medical cannabis.
• there may be a motive to fabricate; H.C. and Ms. P. recall Mr. G. saying he got someone to sign for the grow-op; Mr. Bester was a cannabis activist. It is untested as to how far the passion extended and if he may have wanted to assist people charged with cannabis offences. Mr. Bester and Mr. G. were friends, and not adverse to each other in any way.
• Did Mr. Bester in fact "disappear" from Ontario in 2016 or somehow become unreachable to Mr. G. or others? Again, there is no ability to explore this issue.
• Mr. G. gave evidence that a man nicknamed "Problem" also came to his property and assisted Mr. Bester in the shop. Mr. Bester does not have another named designated producer in his Health Canada documents, he appears to be the only licensed producer (and again that is tied to the Alberta address).
• the alleged witness to the lease of the shop between the parties (Steve Sutherland) has not given evidence. There is no way to examine the circumstances of the lease. Neither the name Bester or Sutherland was put to the complainants in order to establish any corroborative/independent evidence of a relationship between Mr. G. and the Declarant.
• the Affidavit, though sworn, was neither audio or video-taped. It was not typed up verbatim. Mr. Bester had been asked "open-ended" questions in an approx. 1-2 hr. meeting. The answers were not challenged or in circumstances that may circumvent the need for cross-examination to test veracity.
• Mr. Bester has a criminal record which cannot now be explored in cross-examination to assess the Declarant's credibility

[491] Ms. Hoffman states that all of these issues are examples of the procedural and substantive reliability concerns that militate against the inclusion of the Affidavit into evidence.

[492] I am of the view that, despite the points that Ms. Hoffman argued as set out above that the hearsay evidence as set out in the affidavit should be allowed, as should the lease agreement signed between Bester and K.G., in my view this evidence is both necessary and reliable.

[493] It is true that the circumstances surrounding the taking of the affidavit at Mr. Forte's office were not videotaped or audiotaped, as pointed out by Ms. Hoffman during her cross-examination of Mr. Forte. However, I accept Mr. Forte's evidence that he did not do so because he fully expected Bester would be a witness at the preliminary hearing or the trial. He did not appear to be in poor health and there was no expectation that he would not be available to give evidence or be cross-examined at the trial.

[494] Mr. Bester had a criminal record, but it mainly consisted of assault and fail to comply convictions with only one theft under conviction from May 17, 2011 in Lethbridge, Alberta.

[495] In his affidavit Mr. Bester indicates that he entered into a rental agreement with Mr. G. to rent the rear garage area on the defendant's property to store and eventually grow medicinal marihuana in accordance with Bester's production and possession licenses issued to him by Health Canada on April 25, 2013 and valid through to April 25, 2014.

[496] Mr. Bester states in the affidavit that he applied to Health Canada on June 26, 2013 to change the address for the Personal Use Production License from Alberta to Mr. G. address in Milton. I note that there is no evidence of this and the only evidence of any correspondence with counsel for Mr. Bester and Health Canada (not Mr. Forte or Mr. Grill) occur after the arrest of the defendant on the CDSA charges.

[497] Mr. Bester's PUPL (Personal Use Production License) was capped at 1,071 plants (and 48,195 grams of dried cannabis), all of which could only be stored at that Alberta address.

[498] In Mr. G.'s shop, 2,268 harvested cannabis plants were counted (not including the less than 100 still in pots). Mr. Bester's license was set to expire 5 days before Mr. G.'s arrest as all licenses were only granted year to year (the face of the license sets out a renewal application was required 8 weeks prior to the expiry date—this became a moot point after the "Allard Injunction").

[499] Health Canada has no such renewal requests or other requests to change the grow location to an undisclosed Ontario address until after Mr. G. was charged (the first letter was dated May 8, 2014), despite what Mr. Bester stated in his affidavit. In fact, no licenses were able to be transferred or any terms amended after September 30, 2013.

[500] Mr. Bester's ATP (Authorization to Possess), which is not tied to a specific address, had been authorized for 6,600 grams. The total found in Mr. G.'s shop, 24 lbs. of "shake" and 34 lbs. of drying bud, was 58 lbs. or approximately 26 kilos of cannabis product (regardless of the THC levels), well in excess of the Bester ATP, even if the stem weight from the bud is deducted (1/2 the weight is 17 + 24 = 41 lbs or 18.6 kg or 18,600 grams).

[501] Further, on March 31, 2014 the cannabis licensing regime (MMAR) was fully repealed (in favour of the then MMPR regime) and had the effect of extending certain MMAR PUPLs due to the Allard injunction, but capped ALL ATPs at 150 grams of cannabis or 30x the daily dose, whichever is less (Mr. Bester's daily dose was 220 grams). Therefore, Mr. Bester's new legal ATP possession amount as at the date of arrest was only for 150 grams of cannabis. The case law is clear that non-compliance with the licensing regime (despite its confusion) would be a mistake of law, and not a defence.

[502] Ms. Hoffman submits that Mr. G. illegally produced cannabis plants on his property or, in the alternative, aided and abetted in Mr. Bester's illegal production. Whether a third party once had a license does not absolve liability. The suggestion that Mr. G. was unaware of the scope of the sophisticated grow operation defies common sense and the evidence at trial. On his own evidence, Mr. G. did not explore the above legal changes and how they may have affected Mr. Bester's license.

[503] In Mr. Bester's affidavit, he indicates in paragraph 13 that he did advise Mr. G. that he could produce over 1,000 plants indoors at any time, store up to 48,195 grams and possess 6,600 grams at any time, but he did not advise him of how much marihuana he would be storing at his garage unit. He was not aware of how much marihuana had been left from his previous grow-op in Lethbridge because he transferred it to the defendant's property over multiple trips and was actively using it for medicinal purposes. He does, however, agree that the police estimates are a relatively accurate account of the marihuana that he had stored there.

[504] Ms. Bingham submits the Crown's evidence does not establish the essential elements of the offence of production of marihuana beyond a reasonable doubt.

[505] First, there is not sufficient evidence of the actus reus – production of marihuana. There was equipment in the shop that suggested marihuana production was set to begin. This is consistent with Mr. G.'s testimony, and Mr. Bester's affidavit, that Mr. Bester was in the process of moving his marihuana production to Ontario. Mr. G. testified that he set up legal grow-ops for others, and he did the same for Mr. Bester.

[506] However, there was no evidence of increased energy consumption which, as D.C. Kenzaki testified, one would expect to see in an indoor grow-op. There was also no evidence of a hydro bypass. This is consistent with Mr. G.'s testimony that his hydro consumption never increased, so he never charged Mr. Bester for hydro.

[507] D.C. Kenzaki does state in his evidence that there are cases that he is aware of where there are hidden hydro bypasses, but it is apparent that these would be discoverable by the police if they chose to closely examine the premises. In this case, they did not search for a hidden hydro bypass, so to suggest that one existed is simply conjecture in my view.

[508] Further, the need for a hydro bypass is generally to avoid police suspicion by avoiding unusually high hydro consumption that could indicate marihuana was being grown in an inside location. That need would not exist if it was grown by someone with a valid authorization to grow marihuana. It is also to be noted that the lease that Mr. Bester signed with Mr. G. compelled him to pay 70% of any hydro consumption, thus obviating the need for the theft of hydro.

[509] Further, as the photos and video at Exhibits 4A-D and 6 demonstrate, there were very few green plants in the shop. Officer Jason Caron, who searched the grow-op, testified that "it looked like there was some, some bud but I don't think it's going to turn into a full plant where people are going to be able to harvest it and obtain some actual marihuana." D.C. Kenzaki testified that it was possible that the drying marihuana was grown somewhere else.

[510] Second, even if there was production of marihuana in the shop, the Crown has not proven beyond a reasonable doubt that Mr. G. was producing it, or that he even knew about it. Mr. G. testified that he did not think Mr. Bester was growing marihuana in his shop. As already stated, he did not notice any increase in hydro consumption and there was, in fact, no increase. Mr. Bester's affidavit states that he was not growing marihuana in Mr. G.'s shop.

[511] Mr. Bester, however, did apparently have unfettered access to the shop where the grow-op equipment was set up and the marihuana was stored. If indeed there was production of a grow-op in the month preceding his arrest, the absence of hydro consumption, together with the evidence of no hydro by-pass found, leaves me with a reasonable doubt and that the possibility existed that Mr. Bester had transferred the marihuana, including some plants that may have been still alive, from Lethbridge to Milton as stated in his affidavit.

[512] I do not discount the possibility that Mr. G. may have been operating a grow-op in the past before the Bester involvement

[513] It is Mr. G. who is interested in cannabis production and profits, though he may not use the substance himself. For example, the "Shane McNeil texts" further contradicts Mr. G.'s total denial of any prior or current involvement in the production of cannabis:

SM- [2011 chats] Hey did you get all your dope trimmed up yet"

Maybe next time I hitchhike to town K.G. you can sale me a ½ lb hey?

KG-What's your problem? Why u talking like a jackass

SM-[April 26, 2014 chats] Your out on bail

Omg

Is your bizzness over

KM- R u still in bizziniss ? I'll talk to you when I see you no more text please.

Yes I did the roof with the to amish guys I have half a day left & I'm done that house

[514] Ms. Hoffman submits that Mr. G.'s explanation that the latter discussion has nothing to do with cannabis defies belief. There would be no reason for him to be worried about discussing legitimate work with Mr. McNeil after his arrest unless "bizziniss" refers to cannabis. There is no bewilderment, confusion, or lack of understanding by Mr. G. during the exchange—they are exactly the tenor of what one would expect from a grower/seller who is again unhappy with the incautious words of a buyer one week after his arrest for drug charges.

[515] To that I note the problem with that submission is that it conflates texts that occurred in 2011 to texts that occurred after Mr. G.'s first arrest on the CDSA charges. The question "R u still in bizziniss" could be referring to the defendant's work as a general contractor, not the business that he may have been engaged in in 2011, some five years before.

[516] The evidence from H.C. that the defendant, after his first arrest on the CDSA charges but before his second arrest, took her and D.N. down to the grow-op and showed it to them, gave them plastic bags and told them to take as much marihuana as they wanted from plants that were left would support a trafficking conviction if I were to accept that evidence, which I do not for the following reason.

[517] Mr. G. admits that he took them to the garage where the grow-op was, but denies that he gave them marihuana, as H.C. testified. I accept his evidence on this point that he showed them not only the dungeon that day but also where the grow op equipment was.

[518] He simply could not have given them plastic bags and invited them to take as much marihuana as they wanted from the buds of plants that were still present and perhaps alive because the police had already executed the search warrant and seized all of the marihuana.

[519] In my view, it defies common sense that the police would execute a search warrant, discover a large amount of marihuana in the shed, arrest the defendant and charge him with numerous CDSA offences, yet leave 50 to 100 plants that would allow him to further traffic or cultivate marihuana in the very place that was alleged to have been the grow-op.

[520] The police evidence is that they seized the marihuana. I do not expect that they got every stem or stray piece of marihuana that was located there, but to suggest that they would leave full plants capable of harvesting defies belief for me. That is as well another indication of some unbelievable evidence given by H.C. at this trial.

[521] Further, the evidence of D.N. is of little assistance to me. She also says that there were 50 to 100 plants left when they visited the site, which was after his arrest on the drug charges and after the police had searched and seized the marihuana.

[522] Ms. N. does not recall that she or H.C. smoked marihuana that day and does not mention the defendant giving them bags and telling them to help themselves to as much marihuana as they wanted, which is contrary to the evidence of H.C. I would have expected that if he had done this and this indeed had happened, it would have been a memorable moment for Ms. N., yet she did not recall that at all.

[523] Again, am I to believe that the Halton Regional Police Service would be so incompetent as to obtain a valid judicial authorization to search Mr. G.'s property and execute that warrant on April 21, 2014, seizing some 2,000 harvested plants and leave 50 to 100 plants at the premises searched, knowing that the resident of that property, the defendant, would likely be released on bail, as he was, to be able to return and do what he wished with 50 to 100 plants? I think not.

[524] However, the difficulty that the defendant faces is that he was aware that there was no transfer of Bester's PUPL from the Alberta address to the defendant's address. PUPL licenses are address specific, and simply because an individual is allowed to produce marihuana at one address does not mean that they can do so at any address of their choosing.

[525] Mr. G., with his unfettered access to the shed where the marihuana was stored and drying, allows me to draw the reasonable conclusion that he was aware of the marihuana being stored there by Mr. Bester.

[526] It is a given that there were some 50 to 100 plants that were unharvested in the shed. I also accept that Mr. Bester's ATP was originally for 6,600 grams which could be possessed anywhere, and pursuant to his P.U.P.L. (Personal Use Production License) he could produce no more than 1,071 plants and store 48,195 grams of marihuana, but only at his Alberta address.

[527] As a result of not obtaining a transfer of location in his P.U.P.L, he was unable to store any cultivated marihuana at the G. property and, as a result of the Allard injunction, his ATP was limited to 150 grams, far less than the significant quantity found on the defendant's property.

[528] The defendant facilitated the storage of this large amount of marihuana by renting the premises to Mr. Bester. When Bester moved the large quantity of marihuana to the defendant's property he was in violation of his P.U.P.L. and it was stored there illegally. As Mr. G. facilitated the ability to store the product there, he is a party to the offence of possession of marihuana far in excess of the 150 grams that Mr. Bester was allowed to possess on April 20, 2014 and certainly far in excess of 3 kilograms.

[529] I am, however, not convinced that the Crown has proven beyond a reasonable doubt that the possession of such a large quantity of marihuana was for the purpose of trafficking.

[530] I am of this opinion for a number of reasons.

[531] Firstly, there is no credible evidence before me that Bester's possession of this amount of marihuana, that I find the defendant to have been a party to, was for a commercial or trafficking enterprise. Under Bester's PUPL he was entitled to possess and produce what even the police considered to be a very large quantity of marihuana. There was some evidence in the trial that he did not smoke most of this marihuana, but that he made most of it into a salve to apply externally to help medical issues that he had. For whatever reason, the regulatory agency at the time allowed an unusually large quantity of marihuana to be cultivated and possessed by Bester.

[532] Notwithstanding the significant cutback of this legal amount prior to the transfer of the product to Ontario by the Allard decision, his continued possession of that large quantity of marihuana, although in contravention of his license that once allowed slightly less than the amount found on the defendant's property, would suggest to me a continuation of what was a previously allowed pattern of possession and production of large quantities of marihuana for personal use. The amount seized from the defendant's property was not sufficiently large, considering Bester's previously legally allowed limits to suggest a commercial or trafficking purpose.

[533] Without expert evidence that that amount of marihuana found could indicate that it was possessed for the purpose of trafficking in relation to Bester's medical usage historically, I cannot be satisfied beyond a reasonable doubt that there was a commercial or trafficking element to the possession of Bester, of which the defendant was a party.

[534] It is a given that the defendant knew that Bester at one point was entitled to possess, store and produce a considerable quantity of marihuana for personal use.

[535] I find that while his ignorance of the law that was evolving at the time does not provide a defence to the illegal possession of the drugs found, it does not suggest that by allowing the storing of those large quantities of marihuana at his property that he was a party to possession for the purpose of trafficking in marihuana.

[536] It was the defendant's evidence that Mr. Bester would supply marijuana to S.G. It was not argued by Ms. Hoffman that if the defendant was in joint possession of Bester's marihuana and knew that Bester gave some of that marihuana to S.G., that he could be a party to the offence of possession for the purpose of trafficking. This evidence was not touched on in the Bester affidavit, no questions were put to S.G. about Bester supplying marihuana to her by defence counsel, and it arises solely from the evidence of the defendant.

[537] Although it would be a novel argument to consider, and a possible route to find a conviction to the defendant being a party to possession for the purpose of trafficking of marihuana I decline to consider that argument, as Ms. Hoffman did not raise it. It is clear on my findings that the defendant was in joint possession of a large amount of the Bester marihuana.

[538] It is also clear on his evidence that he knew that some of this marihuana was given and supplied to S.G. by Mr. Bester. Could it not be argued that his knowledge that Bester was supplying her with marihuana made him a party to the offence of possession for the purpose of trafficking? It was not argued and did not appear to be a theory of the Federal Crown at this trial so I will decline to address that possibility. This is not intended to in any way to be a criticism of Ms. Hoffman. She did a very professional, competent and thorough prosecution of the defendant in this case and is commended by me for so doing.

[539] The defendant will therefore be found not guilty of the offence of possession for the purpose of trafficking of marihuana, but guilty of the lesser and included offence of possession of marihuana.

[540] Although I have a suspicion that there may have been cultivation of marihuana being done by Bester, jointly with the defendant, I have a reasonable doubt in that regard.

[541] The Crown in these proceedings has not proven the s. 7(1) charge of production of marihuana beyond a reasonable doubt, in my view.

[542] I cannot discount the Bester affidavit and the defendant's evidence that the product discovered and seized by the police on April 21, 2014 was grown in Alberta and moved to the defendant's home for drying and processing.

[543] The 50-100 plants in pots found during the execution of the search warrant may have been harvestable, but the evidence on this is not clear.

[544] I am not satisfied that, although the facilities existed for the attempted continued cultivation of these plants, that those facilities were ever utilized for that purpose, particularly around the dates as set out in the information, being on or about April 20, 2014.

[545] Cultivation requires labour and attention to promote the plants' growth. It is a continuing offence, starting with the seeds being planted and continuing until completion by harvest or abandonment. It includes periods of deliberate inactivity where the crop is left to simply grow in conditions created for that purpose. Processing after harvest by curing, drying or other means is not part of cultivation, which is complete by that point.

[546] The fact that an unspecified number of those plants may have been capable of revival or cultivation to obtain a useable product does not get around my concern that there is no evidence that this process did or would or could have occurred during the time frame as set out in the information.

[547] The evidence lead at this trial was that the police thought that it was unlikely that these were viable plants. Many of them were brown or dead and even though there was some green on some plants does not, in my view, make them viable plants, nor point to anything more than the mere possibility of the ability to "cultivate" them. The police evidence, when looked at in its entirety, does not assist the Crown in this regard.

[548] Unfortunately for the Crown, the foundational evidence that exists about the active growing of marihuana on the property preceding the arrest relies solely on the evidence of S.G., who I have found is an unreliable and a manipulative witness and a stranger to the truth.

[549] I totally reject the reliability of her evidence and, therefore, I am left in