WARNING

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

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

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

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

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

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

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

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

Court Information

Ontario Court of Justice

Date: May 7, 2018

Court: Central East Region: Oshawa Courthouse File Nos.: 2811 998 16-22167 00; 2811 998 17-27013 00

Between:

Her Majesty the Queen

— and —

M.P.

Before: Justice Peter C. West

Heard on: January 29, 30 and 31, 2018; May 7, 2018

Oral Reasons given on: May 7, 2018

Counsel:

• Mr. N. Trbojevic — counsel for the Crown
• Mr. C. Da Cruz — counsel for the defendant, M.P.

WEST J.:

Introduction

[1] M.P. and C.C. began dating and became involved in a romantic relationship in November 2015 until their break-up at the end of October 2016. They had been friends for a number of years prior to becoming boyfriend and girlfriend. Ms. C.C. moved in with Mr. M.P. in the basement of his parents' house in the summer of 2016. M.P. suffers from a number of serious mental health issues, Bi-Polar Type II, ADHD (Attention Deficit Hyperactivity Disorder) and a generalized anxiety disorder. He was under the care of a psychiatrist at the time he and Ms. C.C. were dating and was prescribed the following medications: Wellbutrin, an anti-depressant; Vyvense, an ADHD medication; Colazepam, an anti-anxiety medication; Lorazepam, for panic attacks/anti-anxiety medication and Quetiapine, an anti-psychotic medication for Bi-Polar Type II, which included a bedtime sleep medication. At the time they were first dating Ms. C.C. had not been diagnosed with any mental health issues, although she and Mr. M.P. discussed regularly whether she suffered from depression and anxiety. During the summer of 2016, Mr. M.P. suggested, and Ms. C.C. agreed, they become involved in a therapeutic program, which was created by Mr. M.P. and fashioned on his own therapy that he received from his psychiatrist, which included talk therapy, and ideas and techniques Mr. M.P. read about on the internet with Ms. C.C. As I will discuss later in greater detail, it is my view the therapeutic program created and implemented by Mr. M.P. was anything but therapeutic, rather, it was destructive and damaging to Ms. C.C. and was demeaning and vicious in its outcome and effect. It completely deprived her of her free will and any consent Mr. M.P. may have believed Ms. C.C. gave was absolutely vitiated through his coercion and manipulation and was non-existent.

[2] After their breakup, Mr. M.P. was charged with five counts of assaulting Ms. C.C., which are alleged to have occurred during the period of June to October 2016, during the time period Mr. M.P. and Ms. C.C. were engaging in what has been described in the evidence as this so-called therapeutic program of behaviour modification.

[3] The main issue in this case is whether the assaultive behaviour alleged by Ms. C.C. was engaged in by her with her consent or whether her consent was vitiated by Mr. M.P.'s abusive behaviour towards her, through coercion and manipulation and consequently qualified as an intentional application of force by Mr. M.P. towards Ms. C.C. without her consent.

[4] It was the defence position that the therapeutic program, which involved "slap-bets," "pinning," safe words and "mind" exercises, where Ms. C.C. was verbally challenged by Mr. M.P. to make her tougher and therefore better able to handle any type of confrontation without being anxious or becoming depressed, were completely agreed upon by Ms. C.C. and consented to. It was also the defence position Ms. C.C. knowingly agreed to engage with Mr. M.P. in this therapeutic program. It was also an alternate theory of the defence that because of Ms. C.C.'s agreement to engage in the Therapeutic program that Mr. M.P. had an honest but mistaken belief in her consent and should be acquitted of the five counts of assault.

[5] It was the Crown's position this therapeutic program, created and implemented by Mr. M.P., may have initially been playful and consensual; however, as time went on and when Mr. M.P. was not properly taking his medications, where he was doubling or reducing his medications or where he was self-medicating with other illicit substances or when he was involved in a manic episode brought on by his illness and his failure to follow his psychiatrist's instructions concerning his medication, the assaultive behaviour he engaged in towards Ms. C.C. was not consented to or agreed upon and was an intentional application of force without her consent. In fact, it was the Crown's position Ms. C.C. specifically verbalized her lack of consent and her wish that Mr. M.P.'s behaviour stop. The Crown pointed to the texts in Exhibit 1 as proof Mr. M.P. was aware his therapeutic program, which included assaultive behaviour by Mr. M.P. towards Ms. C.C. crossed the line.

[6] A further issue which arose on a number of occasions during the evidence of Mr. M.P. related to defence counsel's failure to raise with Ms. C.C. many of Mr. M.P.'s assertions respecting Ms. C.C.'s behaviour, including assaultive behaviour by Ms. C.C. towards Mr. M.P. during the therapeutic sessions.

[7] A great deal of evidence was obtained from Mr. M.P.'s cell phone in the form of texts (181 pages were filed) and hours of audio-recorded conversations (a 34 minute conversation was played to Ms. C.C. although the Crown had originally intended to play an hour and 48 minute segment) between Mr. M.P. and Ms. C.C. As will be seen Mr. M.P. recorded these so-called therapeutic sessions between himself and Ms. C.C., which were seized from Mr. M.P.'s phone that was the subject of a search warrant. This evidence was not in dispute and the defence conceded these pieces of evidence were in fact obtained by the police technicians from Mr. M.P.'s cell phone and they were introduced with Mr. Da Cruz's consent. Mr. M.P. identified his voice on the recording that was played in court as well he agreed the texts identified in the 181 pages of texts as being sent by him, were in fact texts he sent to Ms. C.C.

Legal Framework

[8] In determining whether the Crown has proved Mr. M.P. assaulted Ms. C.C. on the five occasions alleged I must apply certain legal principles, which I will now describe.

[9] The Crown has the onus to prove the essential elements of these assaults facing Mr. M.P. beyond a reasonable doubt. Mr. M.P. is presumed to be innocent and he does not have to prove anything. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony.

[10] Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[11] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit Mr. M.P. if I accept his evidence denying he assaulted Ms. C.C. Even if I do not accept all of Mr. M.P.'s evidence I must ask myself if it raises a reasonable doubt concerning his guilt after considering it in the context of the evidence as a whole. If it does I must acquit. If I reject his evidence and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of his guilt beyond a reasonable doubt.

[12] A determination of guilt or innocence must not become a mere credibility contest between the Crown's witness and the defence witnesses. Such an approach erodes the operation of the presumption of innocence and defeats the standard of persuasion of proof beyond a reasonable doubt.

[13] I must assess the evidence of the Crown's witness and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses.

[14] I want to deal then with the first issue of whether the Crown has proven Mr. M.P. assaulted Ms. C.C. on five occasions by intentionally applying force towards her without her consent.

The Context of Mr. M.P.'s and Ms. C.C.'s Relationship

[15] Mr. M.P. was diagnosed with his mental health issues just before he began dating Ms. C.C. Several months prior to Ms. C.C. moving into Mr. M.P.'s parents' basement, her sister was diagnosed with a brain tumour and had a number of surgeries and hospitalizations. It was believed Ms. C.C.'s sister would not survive this tumour. This created significant stress for Ms. C.C., who was very close to her sister. Further, Ms. C.C. began to experience stress in her job as a paralegal with an immigration law firm. Ms. C.C. described how Mr. M.P. was having his own struggles with his mental health and how all of these things affected her health causing her to have to take a short term disability leave of absence from her work, which was related to her sister's illness, pressures at her work and her relationship with Mr. M.P.

[16] Mr. M.P. developed techniques to try to control behaviour, his own and Ms. C.C.'s and used the therapy he was receiving and his own research from the internet. They would stay up to all hours of the night talking and Mr. M.P. would record their "therapy" sessions. He began to slap Ms. C.C. to snap her out of what he told her was her exhibiting signs of schizophrenia. Initially the slaps were not hard but according to Ms. C.C., they became more and more forceful as time progressed. Mr. M.P. agreed the slaps escalated and the tone of their therapeutic sessions became darker.

[17] Mr. M.P. told Ms. C.C. he was smarter than she was, he showed her articles from the internet, which he told her mirrored her behaviour and she believed him. Mr. M.P. became more and more controlling of her, always calling her, wanting to know where she was, when she was coming home, sending push notifications on "Find My iPhone" and multiple texts, examples of which are reflected in Exhibit 1. He got her to do jumping jacks and weight lifting and other exercises, which Ms. C.C. testified exhausted her. She testified she cried all the time and he constantly belittled and demeaned her by calling her names, swearing at her and putting her down.

The Allegations of Assault by Ms. C.C.

[18] The five incidents of assault were described by Ms. C.C. as follows:

1. October 2016 — Forced breathing restriction and breast grab

The most recent assault was in October 2016, just before the final break-up, Ms. C.C. was doing jumping jacks and lifting weights at Mr. M.P.'s direction, she was exhausted, so she stopped and told him she could not continue. He told her she had to continue. When she said she couldn't Mr. M.P. grabbed her, pulled onto his lap and forced her face into the bicep area of his arm, such that she was unable to breathe. When he grabbed her to pull her into his lap, he grabbed her breast, which she testified caused a bruise. He then let her go and congratulated her for not crying.

2. Same night — Temple punch and forced cold shower

Later the same night she was doing exercises, again at his direction, she stopped and said she was exhausted and could not go on. Mr. M.P. put his arm behind her neck and pulled her towards him so they were closer than a foot apart, face to face. He then punched her with a closed right fist on her left temple. This caused her immediate pain, she felt light-headed and thought she was going to faint. He told her he had only used 60 percent of his strength and for someone with bipolar he had exercised amazing restraint, which she should be impressed with. She dropped to her knees because of the blow to the temple. She went into the bedroom to get an energy bar but again felt faint. Mr. M.P. was concerned she had a concussion and looked on the internet to determine the appropriate treatment. He told she needed to stay awake and take a cold shower. He grabbed her and brought her to the shower, fully clothed, turned on the cold water, put her into the shower and began to forcibly remove her clothes. Ms. C.C. described how Mr. M.P. began to have an anxiety attack himself because he thought he was going to have to take her to the hospital because of the possible concussion and the police would arrest him and he would get into trouble. He refused to allow her to exit the shower and insisted she put her hand on his chest to help calm him down, which she did.

3. "Navy seal training" — Pinning and slapping

Ms. C.C. indicated the third type of assaultive behaviour was where Mr. M.P. would have her sit in front of a mirror and fix her face with a smile and then he would say horrible, demeaning things to her, for example how ugly she was or how stupid she was, what she needed to fix and so on. This would go on for hours and she had to keep the same face. If she started to cry or wanted to get up he would not let her, ultimately he would grab her by her neck (with his fingers and thumb), push her onto her back on the bed and get on top of her, sit on her chest or pin her arms down with his legs so she could not get up. While he had her pinned to the bed he would slap her face. He called this "navy seal training" and Ms. C.C. described how this happened often, on an almost daily basis. Sometimes his slapping would cause her ears to ring. On one occasion he put his hand over her mouth as she was screaming for him to stop hitting her and he kept telling her to "submit." He would only let her up if she stopped struggling, stopped screaming and stopped telling him to stop what he was doing.

4. Sobey's parking lot — Public slapping

There was an incident where they were driving around at night and ended up in the Sobey's Grocery store parking lot in Pickering. He told her he wanted to make her not afraid of being abused. He told her he was going to beat the "shit out of her," started slapping her in the face and she was supposed to smile through the tears. The parking lot was located where there were a number of big box stores and the slapping started by the Walmart. He slapped her during this exercise up to 10 times. After each slap she was supposed to smile. Mr. M.P. was hitting Ms. C.C. while he was driving his car around the parking lot.

5. Bruise above eyebrow — September 3rd

The final allegation of assault was on one of the occasions when Mr. M.P. was doing the "navy seal training." Ms. C.C. ended up with a bruise above her left eyebrow. Her mom questioned her about the bruise and Ms. C.C. brushed it off. This happened on her sister's birthday, September 3rd. She brought it up with Mr. M.P. because he had promised he would never leave a bruise.

[19] Ms. C.C. testified she was always telling Mr. M.P. during the slapping, the "navy seal training," the pinning on the bed, the cold shower, not letting her sleep, that his therapeutic program was not working and it was too much for her and for him to stop. She testified she agreed to his slapping her under extreme duress. If she said she did not want him to slap her he would slap her harder.

[20] At some point during their relationship Ms. C.C. began taking Quatiapine, Cipralex, an anti-depressant and Lorazepam. At some later point she switched the Cipralex for Zoloft. This occurred because Mr. M.P. convinced her to attend the emergency where she was given medication to help her deal with her anxiety.

[21] Ms. C.C. agreed the "slap-bet" originally came from a TV game show and when they played video games, the person who won got to "slap-bet" the other, which was light-hearted and playful but this changed.

[22] Mr. M.P. believed she suffered from schizophrenia, although she did not believe this. He believed his therapies were helping her but she told him they were not. She testified she had to thank him for what he was doing or he would become upset with her.

[23] It was Ms. C.C.'s position that her agreement to let Mr. M.P. hit her was only because of being under duress, coercion and fear. She told him to stop many times. Mr. M.P. testified what he was doing to Ms. C.C. was therapy. She was unable to explain how she was feeling at the time as she was very confused by what Mr. M.P. did during these therapeutic sessions.

[24] Ms. C.C. testified she told the police she believed Mr. M.P. believed what he was doing to her by slapping her was helping her. He convinced her that he believed it was a good thing for him to hit her, she believed it was wrong but he believed it was a good thing, it had to be done and that she was the one who was out of control by crying all the time.

Mr. M.P.'s Evidence Concerning the Assaults

[25] It was Mr. M.P.'s position that he and Ms. C.C. had a healthy relationship for months and months before any talk of programs or diagnosis came up. He agreed he introduced his belief to her that she had schizophrenia. He believed she had been promoted in her job beyond her abilities.

[26] When asked in-chief if he ever pinned her to the bed or threw her onto the bed and sat on her chest or pinned her arms down he said: "I'm picking my words very carefully here so bear with me as I kind of collect my thoughts." Ultimately, it was his position that they mutually and consensually decided to start this program. It was a self-help therapy. There were always two main rules, "safety" and "trust."

[27] Early in his evidence in-chief he conceded that as time went on, "some of the more nasty, I'd say now in hindsight manic episodes started between both Ms. C.C. and I, which resulted in maybe some of the more unorthodox therapies." He described things ramping up to include the "slap-bet." In the beginning it was all fun and games and he testified Ms. C.C. was exaggerating the force used. "The pinning was the absolute most severe agreed upon I would say ending to a manic episode or a breakdown….yelling, screaming and crying, from C.C. for sure."

[28] Mr. M.P. saw the program as something to assist him because of his own mental health issues, he was struggling and dealing with manic episodes, seeing a psychiatrist and specialist regularly and he described the program as "this is me finding an implementation at home in a set of rules that I can follow that are going to benefit my own recuperation and my own therapy… that's how it was sold for lack of a better word…it started innocently."

[29] He agreed there was an exercise which involved Ms. C.C. sitting in front of a mirror and fixing her face with a smile while he berated her and belittled her. He agreed she would tell him she did not like this verbal abuse.

[30] He agreed the pinning escalated from being playful to something else but it was his position the pinning was consensual. He agreed the slaps were used as "a corrective measure." It was Mr. M.P.'s position the slapping during their therapeutic program was mutually consensual and was done by them both. Ms. C.C. testified the only mutual slapping was when they originally came up with "slap-bet" from a game show when they played video games, which was playful and light-hearted. Mr. M.P. did not recall an occasion where he slapped her so hard she complained it hurt her ear and caused it to ring. He did agree there would be feedback and they would have to "dial it back," and he referenced that when they were dealing with "something as obscure and as bizarre as a "slap-bet" being used in some kind of a therapy, you're going to have some tweaking to it…" As I will discuss in greater detail, when Mr. M.P.'s conduct towards Ms. C.C., in terms of the slapping, the pinning on the bed and the verbal abuse became "nastier," his explanation did not make sense. I agree with his description of the "slap-bet" being obscure and bizarre and it is my view the reason it needed to be tweaked was because it crossed the line into nonconsensual assaultive behaviour by Mr. M.P.

[31] Mr. M.P. denied Ms. C.C. ever complained about the force he was using against her. He testified she never said she no longer wanted to participate in the therapy. He testified he never was trying to control her, it was not a dictatorship. He denied preventing her from drinking water or eating food or sleeping and said she was trying to make him look like a "monster." As will be seen from the texts and the portion of the audio recordings played, his evidence was incorrect. In fact, Mr. M.P. admits (starting at p 103 and following of Exhibit) to deliberately engaging in abusive behaviour to control Ms. C.C. I will discuss this in greater detail later in my reasons.

[32] Mr. M.P. agreed he was not always taking his prescribed medication when he was dating Ms. C.C. He sometimes self-medicated with illicit drugs or took a lower or higher dose of his prescribed medications. He agreed he experimented with his medications.

[33] He also testified in-chief he had manic episodes where he knew how downright nasty he could get and how delusional he could get where there could be threats of suicide or threats of bodily harm.

[34] He did not recall Ms. C.C. ever telling him of any concerns of his abusing her physically. He denied ever receiving any texts from Ms. C.C. alleging assaults by him towards her, other than the punch to the temple. There were never any discussions by phone or in person with her about his assaulting her. It was Mr. M.P.'s evidence there were consensual conversations about exactly what was going to happen during the self-help therapies. He believed it was a natural escalation to snap each other out of a certain situation, if things were getting out of hand a light slap or a pin would be kind of their way of saying 'Okay, that's enough of that screaming and yelling.'

[35] It was his position when they were discussing the consensual use of physical force, "they were almost done in like a scientific, kind of partnership manner. Like we were figuring it out together." He did not recall her crying when she would agree to the physical force. Again, this is contrary to his admissions in the text messages.

[36] He recalled the jumping jacks and the temple punching scenario. He denied punching her in the temple. He agreed she was doing jumping jacks but he does not recall grabbing her and pulling her down so her mouth was against his arm and she could not breathe. He did not recall grabbing her breast, rather he recalled an embrace.

[37] With respect to the punch in the temple incident, Mr. M.P. testified this was a "slap-bet" where he hit her with an open hand slap. It was consensual. There was never any intention to cause her harm because safety was the number one rule. The slap was like any other slap he had used previously, although he agreed on this occasion she was clearly in distress. It was the only time this happened. She was panicked and she said he had given her a concussion. This was why he went on the internet which said don't let the person fall asleep and to give them a cold shower. This was why he led her to the shower. There was no physical altercation. He cannot recall if he tried to rip her clothes off. He was terrified for her and had his own panic attack. He did not force her to take the cold shower, rather, he testified it was him saying, "Please, while you're doing your thing and you're waking yourself up and you're practicing this consensual action of trying the cold shower to see if that's going to work, could you please help me calm down, 'cause I'm now worried just as much for your safety as now I am for mine." He did not recall her saying she wanted to leave the shower.

[38] Mr. M.P.'s explanation for the cold shower incident as just another incident of him slapping her as part of a "slap-bet" does not make sense. His belief Ms. C.C. had a concussion only makes sense if he struck her with a closed fist on the temple. As will be seen from the text messages Mr. M.P. admits there was an incident where she accused him of punching her in the temple, which he referred to as being "her ace in the hole." Again, as will be seen, his evidence on this issue was incorrect.

[39] Mr. M.P. said he never used force if she said no. He testified, "I definitely know at the beginning it was always very light and fluffy, and I think as the episodes got worse, the language definitely became now, in hindsight, something that I would never use today."

[40] Mr. M.P. denied pinning her to the bed and grabbing her throat or neck as Ms. C.C. described. He agreed he may have put his hand over her mouth because she was screaming. She was having a manic episode. It was a reaction by him to prevent her screaming from waking up his parents.

[41] He recalled going for rides with her and going to the Sobey's parking lot but denied ever saying he was going to "beat the shit out of her." He remembered the "slap-bet" and their discussion about what it would look like if someone saw either of them hitting each other. He agreed he did tell her to smile after he slapped her because they had agreed to engage in the same behaviour in the parking lot as they had been doing in the basement at his home.

Analysis

[42] If I believe the evidence of Mr. M.P. concerning his interactions with Ms. C.C. I must acquit him. It is his position any physical force he used towards Ms. C.C. was consensual and was part of a therapeutic program he initially had suggested but later in his evidence he testified they developed the program together and they agreed upon what was to occur.

[43] I do not believe Mr. M.P.'s denials or his evidence concerning the so-called therapeutic program because there were a number of serious inconsistencies disclosed in his evidence. First, the texts contained in Exhibit 1 reflect and demonstrate there were numerous earlier occasions where Ms. C.C. had confronted Mr. M.P. and told him she did not want to be hit or slapped or pinned to the bed. As I will discuss further, I find Mr. M.P. admitted in some of the texts to actually assaulting Ms. C.C. Second, some aspects of his evidence in cross-examination amount, in my view, to being completely implausible and incredible, his evidence concerning the cold shower is an example. Third, on numerous occasions during his cross-examination Mr. M.P. was evasive and unwilling to directly answer the questions put to him by the Crown. Fourth, I find as well that Mr. M.P.'s behaviour in the audio recording of the one therapeutic session the Crown played during Ms. C.C.'s evidence to be verbally abusive and provided a context which proved Mr. M.P. was assaulting Ms. C.C. without her consent and agreement because her will was overcome by coercion, duress and fear.

[44] In addition, it is my view the therapeutic program described by Mr. M.P. was completely of his own making, it was his idea based on his own psychiatric therapy and his research and any agreement by Ms. C.C. was vitiated as a result of what I view as duress and coercion by Mr. M.P. towards Ms. C.C., which resulted in her being afraid and manipulated. As I will discuss, it is for all of these reasons that I completely reject his evidence.

[45] Mr. M.P. agreed in cross that he frequently suffered from manic episodes where he experienced delusions of greatness, where he believed he was smarter than anyone else, including Ms. C.C., his doctors, and his parents. This would cause him to have an unending stream of thoughts, which was why he created the audio recordings. He agreed when he was unwell his thoughts were incoherent, irrational and not always logical. He agreed his memory would be imperfect after a manic episode. He agreed he could not recall if he had threatened to kill himself if Ms. C.C. did not return to the relationship after a break-up. He agreed this occurred because after a manic episode he would not be able to retrieve a reliable and accurate memory of the things he said or did. Mr. M.P. agreed there were occasions after those episodes he would not "be able to pierce the veil" to know what had occurred.

[46] It is my view Mr. M.P.'s initial candor in this area diminished when he realized his concessions affected how the reliability and accuracy of his evidence was viewed. I find he became very evasive in his answers later in his evidence, falling back on a recurring explanation of the fact that the events he was describing had occurred a year and a half before, so how could he possibly remember what he said or did. This was completely inconsistent with his earlier evidence.

[47] Another area I find Mr. M.P. was evasive and less than truthful was in respect of who came up with the idea of he and Ms. C.C. engaging in this so-called therapeutic program. Clearly at the beginning of his evidence in-chief Mr. M.P. conceded with his lawyer it was his idea and he sold Ms. C.C. on the idea. His evidence in this area changed where the therapeutic program was a joint decision, made together in partnership with Ms. C.C. to consensually agree to the use of physical force being employed during these therapeutic sessions. This, in my view, makes no sense, given it was Mr. M.P. who had had been diagnosed with mental health disorders and prescribed medications by his family doctors and later his psychiatrist shortly before he and Ms. C.C. started dating in November 2015. It was not until the summer of 2016 that this therapeutic program was first discussed and in my view it makes more sense that Mr. M.P. came up with the idea and sold Ms. C.C. on it. Mr. M.P.'s evidence flip flopped back and forth from being his idea where he persuaded Ms. C.C. to it being their joint decision.

[48] Another constant theme in Mr. M.P.'s evidence was his recognition that initially at the outset the therapeutic program was light-hearted and playful but it escalated and evolved into something much darker and inappropriate. Throughout his evidence in-chief he conceded in hindsight he would not have engaged in the later verbal abuse, the demeaning, nasty and foul language he used towards Ms. C.C. He conceded in this respect he went too far in the things he said to Ms. C.C. He also conceded in cross-examination on a number of occasions where the hitting and pinning behaviour escalated and had to be "tweaked" or scaled back, which in my view was an admission by Mr. M.P. of assaultive behaviour that crossed the line.

[49] Mr. M.P. agreed he never discussed with his psychiatrist the so-called therapeutic program he persuaded Ms. C.C. to become involved in with him. He agreed the therapeutic program they were engaged in would be seen by an outsider as bizarre, strange and weird, not normal psychiatric therapy. His technique of having Ms. C.C. sit in front of a mirror and fix a smile on her face as he berated and humiliated and demeaned her can only be described as abhorrent and despicable. Using physical force by way of a slap to snap someone out of a manic episode does not accord with common sense and in my view is completely outside the realm of normal psychiatric therapy. There is no logic in using slaps as a corrective measure to provide any therapeutic benefit to a person suffering from a mental health disorder.

[50] The one audio recording that was played during Ms. C.C.'s evidence can only be described as Mr. M.P. being degrading and demeaning towards Ms. C.C. His description of his verbal abuse reflected in that recording as "nasty" does not come close to reflecting how vile and despicable his language and comments were. It is my view his behaviour completely vitiated any free-will on Ms. C.C.'s part and any so-called agreement to physical force would have been obtained as a result of duress and coercion and fear. It is my view the exchange on the audio recording was extremely verbally abusive towards Ms. C.C.

[51] In cross Mr. M.P., for the first time, testified they also had a safe word, "submit," which could be used if a slap was too hard or to get one of them to stop yelling and screaming when involved in a manic episode. It is interesting to note Mr. M.P. could not recall Ms. C.C. ever using this safe word and was only able to describe his using the word to get Ms. C.C. to stop yelling or screaming during a session by telling her to "submit, to stop screaming." It is my view this was another area where Mr. M.P. was evasive in his evidence and the safe word "submit" did not make any sense in the context of why he testified it was created. Mr. M.P. testified he never really raised his voice but this was proven to be completely inaccurate and false by the audio recording and his use of capital letters in his texts, which he agreed conveyed those words were yelled at Ms. C.C. who was receiving the texts.

[52] Another area I find Mr. M.P. was evasive in his answers was respecting the use of the "slap-bet" during his so-called therapeutic program. Initially in-chief and in cross-examination Mr. M.P. agreed the "slap-bet" or slap was used to snap someone out of an episode but this changed later in his cross to no longer being a slap, rather it was now a touch or a caress of the neck or arm or grabbing Ms. C.C.'s hand and kissing her, all that mattered was the physical connection. In my view Mr. M.P. was entirely disingenuous and deliberately misleading when he gave this evidence as it was completely inconsistent with his previous evidence. When he was pressed on his previous answers he ultimately agreed the slaps got to the point of being "intense" and they were slaps. He also agreed the physicality of the slaps escalated over time and in the circumstances in which they were given.

[53] Mr. M.P. initially denied trying to control Ms. C.C. by using "Find My iPhone" and sending push notifications. However, when his texts in Exhibit 1 were shown to him he was forced to agree he had. He conceded "this was not his finest moment." It was during this area of cross-examination that Mr. M.P. realized many of these texts were sent when he was suffering from a manic episode. This supported the Crown's position that Mr. M.P.'s recollections of his behaviour was unreliable because he was unable to "pierce the veil" as a result of being in a manic episode. He did not recall what he said or how he acted.

[54] He denied he got angry with Ms. C.C. when she had his laptop and iPad after a break-up at the beginning of October 2016 or that he had threatened to come to her mother's house and disclose to her family all of her problems, if she did not return these items that very night. He was forced to concede in fact he had been very angry and threatened to do those things when portions of Exhibit 1 were shown and read to him.

[55] It was Mr. M.P.'s evidence Ms. C.C. never confronted him in texts or on the phone or in person and accused him of previously assaulting her. This evidence changed to Mr. M.P. testifying he could not recall if just prior to them breaking up for good she had accused him of assaulting her. This changed again to his being almost sure she did not.

[56] It is significant in my view that Ms. C.C., in fact, confronted Mr. M.P. with allegations of his assaulting her in her texts sent to him in October 2016.

[57] It was also significant that during Mr. M.P.'s angry texts threatening to destroy Ms. C.C. if she did not return his electronics immediately was his text where he wrote if she said "absolutely anything to do with abuse or assault, I will take you down with everything I have. I will make sure you are put away and sedated for as long as you need to keep your family safe." Mr. M.P.'s response when confronted with this text was he had no idea he wrote such things and this was clearly during a manic episode or he was not on the right medication. When the Crown confronted Mr. M.P. with this text he finally agreed Ms. C.C. must have accused him in a face to face meeting or on the phone of abusing and assaulting her, although he had no memory of her doing this. He agreed his texts were menacing and intimidating. Mr. M.P. testified these texts were "very disconcerting," he wished he had seen these texts before testifying but he ultimately conceded they proved how unreliable his memory was.

[58] Mr. M.P. agreed the pinning on the bed commenced as something playful, which was often a prelude to their engaging in sexual relations but it later escalated as well as something used during this so-called therapeutic program they were involved in. He agreed at one point that things, referring to the pinning, "got out of hand."

[59] He told Ms. C.C. in a text in October 2016 he had been experimenting with his medication as part of what he described as his "lucid dreaming training." He agreed it was clear from the texts this was not going well for him.

[60] In Exhibit 1, at the final break-up, October 21, 2016, Mr. M.P. texted Ms. C.C., "If you ever come after my family, you will ignite this war. You already fired the first shots by telling your victim tale to another human eliminating all trust." He could not recall the specifics of her threats. Again Mr. M.P. testified he believed he was in a manic episode and he was not on the medication he needed to be on, so he could not recall any of these texts. Initially he was attacking her but at p. 103 of Exhibit 1, he completely shifted gears and began to blame himself and admit his assaultive behaviour.

[61] "I absolutely helped you manifest a mental illness. I absolutely put you through hell. I did nothing for you. Absolutely the monster, I've never done anything nice, I've betrayed and berated you for hours and I've knowingly experimented and lied, I've never had the audacity to tell you about it. I have ruthlessly exploited in vivid gory detail all of your flaws just to make you cry. I tortured you with your past and made sure you cried as often as possible and I never reached out my hand or ever cared enough to attempt to help you. I let you struggle all alone. I'm the monster. When you were sick I cast you out of my house."

[62] Mr. M.P. testified during his cross-examination he wrote these texts because Ms. C.C. threatened to commit suicide and he was trying to appease her, yet nowhere in the texts does he say for her not to kill herself and nowhere does Ms. C.C. threaten to kill herself. I do not accept this evidence of Mr. M.P.. He did not assert this during his evidence in-chief but testified about Ms. C.C. threatening suicide for the first time in cross. His position was not put in cross to Ms. C.C. This was a recurring failing in the cross-examination of Ms. C.C. by Mr. Da Cruz. There were numerous instances in Mr. M.P.'s evidence, both in-chief and in cross, where allegations of conduct by Ms. C.C. towards Mr. M.P. were never put to Ms. C.C. to provide her with an opportunity to address and respond to these allegations against her respecting what Mr. M.P. would testify was her behaviour and actions towards him. This was a serious omission and based on the law in this area probably should be used as a factor when determining the weight to be given to Mr. M.P.'s evidence. Of course, as I have indicated I do not accept the majority of Mr. M.P.'s evidence, so it may not be necessary to address what I consider to be serious omissions.

[63] Mr. M.P. testified in cross he had not seen any of these particular texts before he testified, as his phone had been seized by the police and he did not remember writing them. I do not know where the truth of what Mr. M.P. alleged respecting his never being shown the 181 pages of texts between himself and Ms. C.C. in Exhibit 1 or never hearing any of the audio recordings he made on his phone, which were retrieved by the police technicians and admitted by his counsel into evidence. I was advised by both counsel the texts and audio recordings were part of the disclosure provided by the Crown. There was no doubt Mr. M.P. was extremely distraught and anxious concerning the texts and audio recording he had never seen or listened to.

[64] What is most significant and telling were a series of texts in Exhibit 1, pages 107 to 118, where Mr. M.P. told Ms. C.C. he was writing to her mother, P. and intended to send after Ms. C.C. reviewed them. This series of texts, in my view, is a complete admission by Mr. M.P. respecting his assaultive behaviour towards Ms. C.C. I accept Ms. C.C.'s evidence that she deleted these texts sent by Mr. M.P. to her mother from her mother's phone so her mother would not read them.

[65] The texts read as follows:

"Hi P., At no time was C. ever wrong. She is absolutely correct. I am guilty of first degree assault. I am a monster. I should be locked away in a hospital, or jail cell. There is no hope for me now. I will never bounce back. I am guilty of everything C. says. She would not lie. Especially to you P.. She is the most honest and hardworking woman I've ever met. And I fucked up by being a sick out of control monster."

[66] This text goes on for a considerable number of pages, which I am not reproducing. It ends with:

"I am guilty of multiple crimes. 1 possession of marijuana paraphernalia. 1 count of domestic abuse. 1 count of sexual assault without consent. Multiple counts of sexual harassment. I need to be locked up. I need to be put in a padded cell. I am 100% the worst person."

[67] At the conclusion of the text he told Ms. C.C. if he did not hear from her in five minutes he would send these texts to her mom, which he did. The final text contains another admission to P.:

"I would like you to press charges on me for battery and domestic assault. I have all the days and I have the audio recordings proving it was me of my own free will. I just want you to know this."

[68] He admits he is to blame for Ms. C.C.'s bruises.

"Every mark, every bruise was me. M.P. beats women."

[69] It is my view this series of texts was an admission by Mr. M.P. of his forcible application of force to Ms. C.C. without her consent.

[70] Mr. M.P. testified after being shown these text messages that he was clearly suffering from a manic episode when he was not properly taking his medications. He did not recall these texts. When Ms. C.C. told him "I have every right to call the cops. I should have after you punched me in the temple" Mr. M.P. responded "Keep your one ace in the hole," which in my view was also an admission by Mr. M.P. respecting the punch to Ms. C.C.'s temple. Respecting this allegation of assault Mr. M.P.'s explanation in his evidence did not make sense, he testified he had a panic attack and needed Ms. C.C. to press against his chest to calm him down because he was so concerned for her well-being. He had no recollection of how he led her to the shower or really what he did to her once he got her into the shower and turned on the cold water. His response demonstrated his knowledge he had punched her in the temple without her consent.

[71] At one point in Mr. M.P.'s text messages he told Ms. C.C. the recordings he had made of all of their sessions would prove he was not a "monster." When Ms. C.C. responded that the audio tapes would in fact prove he had assaulted her and he was the "monster," he responded then he would "just edit the recordings." This is another reason why I do not accept Mr. M.P.'s evidence. I find the one excerpt from the audio recordings played by the Crown clearly demonstrated how Mr. M.P. controlled and manipulated Ms. C.C.'s feelings and emotions by belittling and demeaning her. It also contained what I find was an admission by Mr. M.P. of his hitting Ms. C.C. during the so-called therapeutic sessions, as she described in her evidence. I will discuss the audio recording in greater detail later in my reasons.

[72] There are numerous occasions when Mr. M.P. testified during his cross-examination that he was reading these texts for the first time as he had no recollection of them. He testified it was as if the texts were written by another person, which was not him. He testified these texts were written and sent by a manic person. I find Mr. M.P.'s recollections of the incidents described by Ms. C.C. are unreliable because of his not taking his prescribed medication or doubling up or lowering his medications by experimenting with them or self-medicating with illicit substances. I also find based on his own evidence that he was often suffering from a manic episode when he was engaged in the therapeutic program, which he created and implemented.

[73] For all of the reasons I have just set out I reject Mr. M.P.'s evidence as it relates to his denials of assaulting Ms. C.C. I also find Mr. M.P.'s evidence does not raise a reasonable doubt about his guilt, when considered with the whole of the evidence in this case.

[74] I must therefore consider the evidence I do accept to determine whether that evidence convinces me beyond a reasonable doubt of the guilt of Mr. M.P. respecting the five incidents of assault testified to by Ms. C.C.

[75] It is my view the text messages I have referenced above, which were sent by Mr. M.P. in October 2016, corroborate Ms. C.C.'s testimony concerning the five incidents of assaultive behaviour by Mr. M.P. towards her. As I indicated above, it is my opinion these texts are admissions by Mr. M.P. of his assaulting Ms. C.C. without her consent. Further, and most significantly, the audio recording played in court clearly demonstrated how any consent by Ms. C.C. was completely vitiated by Mr. M.P.'s conduct and behaviour. Mr. M.P.'s demeaning, vulgar and belittling words towards Ms. C.C. in my view clearly overran her free-will through coercion, duress and fear. They can only be described as vicious, cruel and disgusting verbal attacks on Ms. C.C.'s character, physical appearance and intelligence.

[76] During the audio recording, Exhibit 3, (around the 12 minute mark) Mr. M.P. was upset with Ms. C.C. and said, "I fucking hate you when you fucking do that. I hate you with a passion. I could beat the fuck out of you." He agreed he heard himself say that. He agreed what he said was not therapeutic. Mr. M.P. continued in the audio recording (around the 14 minute mark) where he said, "Fix your life and get over fours." (referring to levels) "Fix your shit. Do I have to hit you?" Ms. C.C. again said, "No." Mr. M.P. agreed he did not really have any memory at all concerning the texts or the audio recordings. In my view these recordings and others from the 34 minutes played reflect an intense level of anger on Mr. M.P.'s part towards Ms. C.C., which supported her evidence of Mr. M.P. assaulting her when he would be extremely angry with her.

[77] The Crown read to Mr. M.P. one exchange from the audio recording that was played in court:

Mr. M.P.: "Do I have to hit you?"

Ms. C.C.: "No."

Mr. M.P.: "Are you sure?"

Ms. C.C.: "You don't."

Mr. M.P.: "You said that pretty quick. Should I?"

Ms. C.C.: "No, you shouldn't."

Mr. M.P.: "Why?"

Ms. C.C.: "Cuz I don't want you to."

Mr. M.P.: "Why? What kind of answer is that?"

Ms. C.C.: "Cuz I don't need you to hit me."

Mr. M.P.: "Don't hit my monkey. Ooo, Ooo. Does your consciousness care if you get hit? Have you been hit before?"

Ms. C.C.: "Yes."

[78] When the Crown suggested to Mr. M.P. that what Ms. C.C. was saying in that recording was she was telling him being hit by him was not okay, what did he have to say about that? Mr. M.P. answered, "It is a lot to process." I find this exchange clearly proved Ms. C.C. was not consenting to being hit by Mr. M.P. during these so-called therapeutic sessions.

[79] When Mr. M.P. was pressed he testified he did not do those things because he was not that person; however, it is my view the texts and audio recordings demonstrate he was in fact that person, he was the person described by Ms. C.C. who assaulted her without her consent.

[80] I found Ms. C.C. was fair and balanced in her evidence and did not attempt to embellish her allegations. She was not evasive in the manner she answered questions in cross-examination but rather, was fair, forthright and consistent. As I indicated above her evidence was corroborated and supported by the text messages Mr. M.P. agreed he sent to Ms. C.C. In addition, I find the audio recording played during Ms. C.C.'s evidence, in which she identified her voice and Mr. M.P.'s voice, provided corroboration of the demeaning, malicious and condescending behaviour Ms. C.C. described Mr. M.P. exercised towards her to overcome her resolve and free will. I find the so-called therapeutic sessions often occurred when Mr. M.P. was experiencing a manic episode. I further find that during these manic episodes Mr. M.P.'s memory was completely nonexistent and entirely unreliable. I have no doubt that Mr. M.P. committed the five assaults alleged by Ms. C.C. I accept Ms. C.C.'s evidence as being forthright and truthful.

[81] Consequently, considering the totality of the evidence I do accept, I am satisfied beyond a reasonable doubt the Crown has proven the five assault charges and there will be findings of guilt.

Released: May 7, 2018

Signed: Justice Peter C. West