Court File and Parties

Date: June 28, 2019

Information No.: 17-908

Ontario Court of Justice (at Brantford, Ontario)

Between:

Her Majesty the Queen

and -

G.B.

Counsel:

Mr. M. Dean for the Crown
Mr. J. Ayoola for the accused

Before: Nadel, J.

Reasons for Judgment

An order has been made under s. 486.4 directing that any information that could identify the complainant, CL, shall not be published in any document or broadcast or transmitted in any way.

The Allegation

[1] The Crown alleges that on October 15, 2016, during the exercise of access to their infant daughter, V., GB raped the complainant, CL. CL did not raise this allegation until January 26, 2017, after GB's lawyer wrote to her complaining that she was denying GB access to their infant child.

[2] As a result of CL's complaint GB was tried on an information alleging that on or about the 15th day of October in the year 2016 at the City of Brantford he committed a sexual assault on CL contrary to s. 271 of the Criminal Code of Canada. The Crown proceeded by indictment on an information sworn on April 3, 2017. GB elected to be tried in the Ontario Court of Justice and pleaded not guilty.

[3] His trial took place over the course of three days. CL testified on December 3, 2018. GB testified on February 22, 2019 and submissions were made on May 6, 2019. The complainant and the accused were the only witnesses called; however, among other exhibits, screen shots of photographs and text messages obtained by CL from her computer, without police investigation, were filed.

[4] The Crown alleges these screen shots are bona fide depictions of injuries inflicted on CL by GB. The Defence contends the screen shots and the text messages referring to the bruises shown in the photographs are forgeries mocked up by CL using her computer graphics skills. Contrary to what CL swore to, GB never sexually assaulted her, never caused any bruising to her, never received any imagery of those bruises from her and never texted her about those bruises. The first time that he ever saw the pictures and texts in question was after they were disclosed to his counsel.

The Complainant – A Brief Biography

[5] CL was 40 when she testified in December of 2018. She was born in China and came to Canada in 2002 where she married DL that same year. They had twin daughters, Vi. and A. in 2006. She and her husband ceased sexual relations in 2013. Despite that they remained living under the same roof with DL occupying a self-contained apartment in the basement of the home that they lived in.

[6] CL gave birth to a third daughter, V., on May 26, 2016. GB is her father.

[7] She first met GB in November of 2006 when she was hired by the company that he was then working for. Initially they were simply co-workers although they eventually became friends. Their employer sold, installed and maintained large video display equipment and CL's job included creating digitally altered photographs showing what the company's equipment might look like when installed and functioning. The two became closer still after Christmas of 2010 and began lunching together. CL explained that after her marriage broke down she and GB began to have an intimate relationship.

Conflicting Evidence Regarding Terminating the Pregnancy

[8] CL testified that she and GB ceased to be intimate after she told him she was pregnant. She believes that she told him in October of 2015 and V. was born on May 26, 2016. She said that at first he did not believe that she was pregnant and when she showed him her pregnancy test results he initially disputed being the father and ultimately suggested that she have an abortion.

[9] In November of 2015 CL went back to China for some weeks to visit her family and when she returned they met. GB was pressuring her to have an abortion. CL testified that she was insistent upon having the child and GB stopped contacting her after that meeting. She was fine with that as she intended to have the child by herself and raise it by herself.

[10] She had no contact from GB until March of 2016 when he emailed her after apparently seeing a Christmas picture that she had posted on Facebook, which showed her being pregnant. CL did not respond to his email.

[11] He persisted in trying to contact her through text messaging and email but she did not respond and he ultimately resorted to phoning and asking for her at her office. (I infer that they no longer worked for the same firm by this point.) She said that she felt that she had to respond to his calls to prevent him from repeatedly calling her at work. As a result they met in March of 2016.

[12] She agreed to meet with him at a donut shop. At this meeting he showed her a list of his demands as the biological father of the child including naming the child. She described his attitude as very demanding. Because of his attitude she walked out of that meeting.

[13] He asked for a second meeting and his attitude had become "softer" and they came to some agreements. While they did not totally agree on the child's name they agreed that he would be with her when she gave birth in a hospital. As agreed, GB took CL to the hospital and was present when she gave birth to their daughter.

[14] The foregoing narrative was based upon CL's direct evidence. In cross-examination Mr. Ayoola put an excerpt from a text message exchange that she had with GB to her. Counsel suggested that this excerpt demonstrated that she was the one who was threatening to abort her pregnancy.

[15] That brief portion of an email conversation was initially entered as Exhibit "A" because: (i) it was merely an excerpt taken out of context from some larger communication; (ii) defence counsel did not attempt to have CL authenticate it by reference to a tiny photograph or some Chinese characters that appeared on the document; and, (iii) because CL did not concede that she was involved in this exchange. When Mr. Ayoola specifically asked her if she sent those texts, CL answered, "I don't remember I said that."

[16] Subsequently, GB authenticated that excerpt and much more during his testimony and this brief excerpt became Exhibit 8a. This excerpt, set out below, was from a longer chain of text messages exchanged on October 3, 2015, according to GB.

No I'm not doing any of that I'm just trying to get this resolved

It is resolved. You stay out, don't be scared by child support, I won't ask for, I may not even keep it… Regardless you have nothing to worry about. Let's leave like that.

Nope. I will sue for custody as well

Again you may have nothing to sue for

[17] The foregoing brief exchange is part of an extended text-conversation between CL and GB on October 3, 2015 spread over 12:44 P.M. to 4:05 P.M. according to Exhibit 8b. The complete sequence is much more extensive than the brief excerpt put to CL during her cross-examination. This extended exchange was identified by GB and filed as Exhibit 8b and is reproduced below as spelled by the participants (but to reduce the space required I have not utilized the paragraphing employed by them):

SX I would accept. No Song

I guess we're going to have issues

One thing you have to get used to is compromising if we are doing this together

Exactly compromise you were insisting on picking up Chinese name And I had no intention of altering it I thought you said you're doing ultrasound today

Chinese name is not an official name, I need to have say in the legal name.

You do X.

Today is too windy. Also I think the later the better when it comes to ultrasound

Yep nothing has changed you are there, I am here you made plans last night and that you change without tell me You need to come out and talk

And you said yesterday you were not going to pressure me???

I'm tired of being the other guy

I talked about the plan and timing of things yesterday, which we agreed on.

You change your mind on things I can change my mind on things

I send you a link about ultrasound, read first

I'm reading it won't change how I feel about what's going on le. Being left out and being the other guy

I don't have two guys, you are the only one I can come to. That's why I need your support regardless

Yeah well I don't see that you live there with another person and I live some-wheres else you treat me like a mushroom, have me in the dark and feed me bullshit

If that's all you can say after all these things I have been through, I don't think it's worth arguing about. Please do everyone a favour, leave me along. I may or may not have this child in the future. But either way, you are free of responsibilities.

I feel DL should be a part of this as well. It impact him

He will have to. I just can't deal with the stress right now at this early stage.

It seems that we have come to an impasse We need a little help to get over this bump Tomorrow I will invite DL into the conversation to help this to move along

All you are doing now is pressuring me

You call it pressure I call it resolving things it's just a difference of semantics

I already said I'm not forcing any responsibility on you. Can you please leave me alone

Nope

It is my right to ask not to be bothered and handle it myself.

Not bothering you I'm gonna have a talk with DL I was just letting you know of my plans

I have asked you for help and support, all you do is pressuring and threatening me. I should have known better and not to be involved with you.

No I'm not doing any of that I'm just trying to get this resolved

It is resolved. You stay out, don't be scared by child support, I won't ask for, I may not even keep it… Regardless you have nothing to worry about. Let's leave like that.

Nope. I will sue for custody as well

Again you may have nothing to sue for

Not interested in being behind the scenes, an non-person I've play that part for most of five years I am a person with feeling of loneliness and emotions I NOT! be silenced any more

Never forced or threatened you to be with me Love and trust is gained, not forced

Just be upfront and completely plain Me and DL are getting together tomorrow

Do as you wish. But if you dare to harass my children I will have the police involved

Are you insane

Are YOU insane

I'm only meeting with DL Not with the family

Anyone comes to my property cause the disturbance of my children's lives, regardless you or DL is going to have to deal with the police

Not coming to your door, just sent him an email

I've already known how much a coward you are, just confirmed As I said, any disturbance caused by anyone, that person has to deal with the police, your email will be kept as an evidence

Just waiting on his reply

[18] During his evidence in this area GB testified that "just after we discovered that we (sic) were pregnant and we were kind of working out the bugs in our …". Clearly he was about to say "in our relationship" but he stopped himself from doing so and paused at length. He then continued "…how we were going to deal with the pregnancy while she was still married and living with her husband. …"

[19] CL initially maintained that it was GB who was urging her to terminate this pregnancy. She said that his urging of her to have an abortion occurred when they met face to face. In addition, she explained that her comments implying that she was considering terminating her pregnancy were an attempt to make him leave her alone because she feared if she had the child his presence in her life would ruin it.

Access Arrangements Leading to the Allegation – the Complainant's Narrative

[20] CL said that she and GB did not have a clear plan regarding his access to their daughter. She expected him to come and visit the child at her home in Ancaster where she lived with her twin daughters, since their father lived in a self-contained basement apartment in that home.

[21] GB worked in Burlington at that time, although he lived in Brantford. That made dropping by for visits to the child convenient as he had to travel past Ancaster from Burlington to go home. However this arrangement ended after one of the twins complained that GB had pushed her and caused her to bump her head. As a result that child's father, DL, did not want GB coming to that home any further. [I note parenthetically that CL was not challenged on this complaint. Nor did GB deny it during his testimony.] So beginning in August of 2016 CL started to take V. to GB's house in Brantford, where she would stay overnight with V. two or three times a week.

[22] GB had a three-bedroom house. He slept in the main bedroom and used one as an office. CL and V. shared the third bedroom during these access visits. That arrangement lasted until October 15, 2016.

[23] CL said that it was very difficult to stay in his house. He has been living alone for many years and she felt that he was very difficult to deal with. He set all house rules. As she explained it, she couldn't do "this or that or even adjust the temperature but in the meantime [GB] asked [her] to share half the house expenses because V. and [CL] stayed there". On one occasion CL dropped some baby powder on his rug and he got upset and she decided that she would much rather stay in her own house "and take care of V. properly."

[24] So, she tried to talk to him about it and on the 14th of October, 2016, she told him that she could not stay there with V. any further. [I note once again that CL was not challenged by Mr. Ayoola on any of this. GB did not expressly deny any of this either, although he maintained, (as related below), that CL lived with him almost all of the week until December of 2016.]

October 15, 2016

[25] CL testified that on the morning of the 15th while she was sleeping GB came to her room "and he forced to have sex with me without my consent." She described the events in this way:

"I was in bed and he come in the bed as well and he held me down and took off my underwear and wanted to have sex with me and I said no but he didn't stop."

[26] At this point CL paused for a long time and had to be prompted by the Crown to continue and the examination in-chief continued as follows:

Q: When he comes in what is he wearing?

A: I don't remember.

Q: When you said he forced sex do you mean penetration?

A: Yes.

Q: Can you give us an idea of how long the penetration lasted for?

A: I don't know how long it was.

Q: What was going thru your mind?

A: I feel ashamed.

[27] CL was then able to give the following narrative description of the event:

"At the beginning he was holding me down with his hands. I'm trying to remember the details. At the beginning he came in and I was already lying down and when I saw him I know his intention and I tried to sit up and he holds me down by his hands. And he puts a hands (sic) around my neck and then he put his mouth around my neck and he use his one hand hold down my two hands – and he use another his hands to take off my underwear. I said NO."

[28] Her examination continued:

Q: Did you say it more than once?

A: Yes. When I said no I was saying I do not want to have sex with you.

Q: Does he say anything to you?

A: He did not respond to my No. I know he said something during that time I don't remember exactly what when that happen or after it happen.

[29] CL explained that GB told her that he thought that it was wrong for her to stay in his house overnight while not having sex with him. He said that after she told him "No" but she could not remember if he said it during the act or right after he stopped assaulting her.

[30] She said that she does not believe he wore a condom and she does not think that he ejaculated. However, he did stop the attack when their infant daughter, V., awoke in her crib and started crying. She added that that is the time he said it although she can't remember it clearly.

Subsequent Events According to the Complainant

[31] CL was unaware of what GB did afterwards. She got dressed, cleaned up, got her things together and drove back to her home.

[32] When she got home she saw bruises on her "neck" (sic). So she took two selfies of them, one on each side of her upper torso below her collarbone, and sent them to him that day along with a message that said something like, "do you really want people to see the bruise on my neck?" She said that GB responded to her communication by texting back that he didn't do it on purpose.

[33] CL said that she suspected she might be marked from the attack because "I saw a few people looking at me funny and when I get to my house I went in the bathroom and saw the bruise on my neck." CL was not questioned by either counsel about what she wore home or how anyone might be able to see below her collarbone given that it was mid-October and given that she drove home from GB's house.

Screen Shots of Bruises and Text Messages

[34] Mr. Dean showed CL a screen shot of a photograph that she identified as being a "selfie" of the front of her upper torso taken on October 15, 2016 after she returned home. Because it was a selfie CL wasn't clear about whether the photo was in a mirrored format, that is to say a format in which left and right are transposed. Regardless, CL identified the screen shot as being of her, taken by her on that date. She said that it was one of two photos that she took of herself that day and that she sent them to GB on that date. The picture was duly entered as Exhibit 1. CL said that she was able to retrieve and download this photograph to her computer and that the exhibit is a screen shot of that download.

[35] It should be borne in mind that the position of the Defence is that this screen shot was created by CL using her computer graphics skills. The Defence contends that it is a forgery and not a picture of anything authentic at all. It is merely a headless torso mocked up by CL and is of no probative value, aside from demonstrating the deceitfulness of her allegations.

[36] Because of that position I will take the time to describe the exhibit in some detail. The image shows what I first took to be the upper right back of the person depicted with a large red bruise of various hues near the slope of the shoulder of the subject. Nothing in the image suggests the rise of a breast and no nipple is visible in the image despite the large expanse of flesh depicted. CL said that she took this picture of the front of herself that day. The subject is wearing a pinkish coloured garment that is visible to a small extent around the subject's neck and shoulder and some black hair is visible on the shoulder of the subject adjacent to the subject's neck. A few faint skin moles or at least darker dots of skin can be made out on the subject's skin.

[37] As noted above, CL identified Exhibit 1 as a cached selfie of her upper front right torso showing her collarbone area. Although she said it was the right side of her torso she found it confusing to identify whether this was the right or left side of the front of her body because she understood that the camera could transpose sides in a selfie. She apparently did not produce a cached version of the cell phone selfie of the other bruise to the police. In any event no screen shot of a download of the second selfie of her other bruise was entered into evidence.

[38] To the left of the image portion of Exhibit 1 is a listing of the following "File Information":

IMG_9809.JPG – Photos

File Information

Filename: IMG_9809.JPG

Date: Saturday, October 15, 2016 12:48 PM

Size: 5 MB

Dimensions: 1836 x 2448

Shot: 1/30 sec. f/2.2 4.14mm

ISO: 40

Device: Iphone SE

Folder Path: C:\Users[…]\Pcitures\iCloud

Source: This PC

Location: [blank]

[39] Some further information is required to appreciate her evidence and the Defence position about it. CL testified that she took this photo and another and sent them to GB in an exchange of text messages. She testified that subsequently, on a date not detailed in the evidence, she deleted all of her text messages to GB. However, three of her devices, her cell phone and two iPads, were "synchronized" with an iCloud storage system. That synchronization programme meant that whatever she did or received on these devices was automatically backed up and stored on this storage system.

[40] As a result, when she eventually made her complaint to the police, she was able to retrieve the selfies of the bruises that GB inflicted upon her during his rape of her along with the text exchange in which she sent GB a photograph of each of her bruises. That is how these items came to be available to be exhibited, although the date on which Exhibits 1, 2 and 3 were retrieved by her was not provided. Nor, as I have already noted, was a screen shot of the second selfie with the File Information of a bruise exhibited.

[41] Exhibit 3, which is the same image depicted in Exhibit 1 displays a bruise on CL's torso along with some texts exchanged between her and GB. CL said it and Exhibit 2, an image of the other bruise, were sent to GB on October 15, 2016 and received by him on that date. To repeat, in an attempt to clarify, Exhibit 3 is an image of the bruise in Exhibit 1 and a continuation of the text messages the couple exchanged that commences on Exhibit 2, which displays the other bruise that CL said GB inflicted.

[42] Exhibits 2 and 3 purport to be sent by CL to GB at […]@hotmail.com which was the address that he conceded that he maintained in October of 2016. He said that he was partial to a brand of jeans called "Guess", which explains the name.

[43] Mr. Ayoola raised some questions about these two exhibits. First, while CL testified that she sent both of these photos in an exchange of text messaging with GB on October 15, 2016, both exhibits ostensibly appear to have been sent on October 23, 2016, based upon that date appearing in a recent contact list that I will attempt to describe next. On the left-hand side of the exhibits is an index or listing of what would appear to be recent text contacts that CL had with a number of different individuals. Both Exhibits 2 and 3 bear a notation "[…]@hotmail.c... 10/23/16 Attachment: 1 image." Next, prior to the image of the bruise appearing on Exhibit 2 is a series of lines of the letter Y in brackets, ["(Y)"], which is repeated multiple times over seven and a half lines containing 20 repeats of that symbol per full line. Neither CL nor Mr. Dean could offer any explanation for why those symbols appeared in Exhibit 2.

[44] Strangely, CL was not asked by either counsel to account for the discrepancy in the date that the image appears to have been transmitted, according to its face, (if that date was a discrepancy.)

[45] The text messages exchanged in these two exhibits proceed as follows:

Exhibit 2:

This is the first time you're seeing it

That is all the text that appears on Exhibit 2 and there is no punctuation by GB. I infer that GB did not commonly use punctuation while texting as it is often missing from his texts in Exhibit 8b, which he conceded that he authored. The point being that it is not clear whether "This is the first time you're seeing it" is a question or a statement.

Exhibit 3, (which contains the image that is contained in Exhibit 1), proceeds as follows:

Same question

No. Didn't you see it this morning?

Yes I did see it and I said to "S." wait for the scream But it never happened

You have to be careful with a baby around

What do you mean

You really want people to see the bruises? They are too big to hide.

It wasn't done purposely

[46] It is clear to me that these messages must be part of a longer exchange. The comment in Exhibit 2, (This is the first time you're seeing it), is dangling and out of context. It is likely that the texted words "Same question" which commences the messaging in Exhibit 3 is a continuation of the comment from Exhibit 2. As noted "This is the first time you're seeing it" may be a question without the question mark. It is, of course, possible that it could be a statement requiring a period rather than a question mark. The problem is that this was not clarified by the Crown through the witness. Regardless, CL said that these two exhibits comprise the whole of the texts exchanged between them on October 15, 2016. I do not accept that both because of what I refer to as the dangling content of Exhibit 2 and because of the unexplained lines of (Y)s that appear above the picture that was sent with the transmission.

[47] This is a matter of major importance, in my view. As noted earlier, only CL and GB testified viva voce. There was no independent evidence called about the investigation of this allegation. While CL was interviewed by two police forces, no police evidence was called. CL maintained control of her computer. She was the only source of information and control over the provenance of these three exhibits. Given the dangling nature of the text message in Exhibit 2, I am surprised that the Crown did not seek to have her produce the whole exchange, as there must have been more to it prior to the words "This is the first time you're seeing it".

[48] While I had a concern that Mr. Ayoola breached the rule in Browne v. Dunn by failing to expressly put the suggestion to CL that she had created these exhibits out of whole cloth, Mr. Dean took the position that this position was sufficiently put to CL. Hence, he did not seek any relief for a breach of the rule by, for example, having CL recalled to speak to the express suggestion of forging these exhibits.

[49] In addition to the discrepancy that Exhibit 1 purports to have been taken and sent on October 15, 2016 while Exhibits 2 and 3 purport to have been sent on October 23, 2016, there are several other matters that the Defence raises to contest the authenticity of these three exhibits.

Differences in Exhibit 3 and Exhibit B of Exhibit 5

[50] Exhibit 3 shows the recipient of the photo and text exchange to be "[…]@hotmail.com". That same photo is included as an exhibit in an affidavit that CL filed in her custody/access dispute that was going on, and may still be proceeding, in the Unified Family Court in Hamilton. This is a proceeding initiated by GB in which CL is the Respondent. In an affidavit filed by her in that proceeding sworn on March 27, 2018 she included the same photo and text message exchange as contained in Exhibit 3 in this trial. But, in the version exhibited in that affidavit, the recipient is shown as "G." not as "[…]@hotmail.com". The Defence points to this variation as another indication that the exhibit is a forgery. That affidavit was filed as Exhibit 5 in this proceeding.

[51] Beyond this difference in the name of the recipient, there are other differences between the versions of this photo and its accompanying text messaging. In the version filed as Exhibit B to CL's affidavit in the family law proceeding the index of recent contacts is completely different from the people CL was communicating with in Exhibit 3 as I have attempted to display below. That index of recent contacts in Exhibit B does not contain any recent contact with GB. Based upon CL's testimony the implication is that she accessed this stored picture using her backed up files in the iCloud storage. The further inference, based upon her testimony and from a comparison of Exhibit B to Exhibit 3 is that in order to obtain a screen shot of the photograph, it is downloaded to the current page of her text-messaging application and hence the difference in the indices between the two forms of the photograph.

[52] What I am calling an index of recent contacts is a column on the left-hand side of both exhibits, headed by the word "Messages". To the left of that word is the word or part of the word "Edit" and to the right is a symbol for writing a message; i.e., the symbol being a piece of paper with a poised pencil on it.

[53] In addition to the differences in the index of recent contacts in the message column, the image in Exhibit B of Exhibit 5 shows the date of October 15, 2015 and the time of 12:53 P.M. Recall that according to what I'll term the embedded information in Exhibit 1 that photograph purports to be taken at 12:48 P.M. on October 15, 2015. CL testified that she sent it to GB that day and so a sent time of 12:53 P.M. corresponds quite well to that scenario. This is one of the pieces of evidence that convinces me Exhibits 1, 2 and 3 are genuine and not forgeries as contended by GB.

[54] With that explanation, I shall attempt to reproduce, to the extent that I can, the indices of recent contacts that appear in Exhibit 3 and in Exhibit B of Exhibit 5:

Exhibit 3 in this trial	Exhibit B of Exhibit 5 in this trial
L.M. Thursday Sure	{cut off} found it cuz E. gave it to m…
tacos Thursday How do I battle u	+1(289)[…] … 9/17/17 Httpp://[…]
+1(289)[…] … Thursday	+1(289)[…] … Thursday
+1(905)[…] 9/3/17 Attachment: 1 Location	+1(905)[…] 9/3/17 Attachment: 1 Location
[C.R.]… Thursday Attachment: 1 Video	[...]@gm... 8/29/17 Seeeee tyyyfee
[...]@gm... 8/29/17 Seeeee tyyyfee	{symbols I can't duplicate} 8/1/17 {a kind of smiley face}
[...]@hotmail.c... 10/23/16 Attachment: 1 image	+1(905)[...] 10/21/16 Dad said the money transfer went in
	+1(416)[…] 7/29/17 Chinese symbols I cannot reproduce
	[...]@gmail... 10/21/16 Hi C. can u please send me the Harley Quinn costume
	MARSBARS 7/27/17 Nvm
	+[…] 10/21/16 Disliked https://youtu.[ ...]
	Y.S. 6/26/17 Thx

[55] CL testified that she deleted all of her text messages with GB between the time Exhibit 3 was sent to him and when it was retrieved by her for inclusion as an exhibit in her family law affidavit. At that point she changed her file name for him to simply "G.". Despite that testimony, the Defence contends there are further reasons for rejecting her evidence about the bona fides of Exhibits 1, 2, 3 and Exhibit B of Exhibit 5. Those further reasons result from a video of the complainant and V. that she sent to GB on October 19, 2016, just four days after the alleged attack.

The Video

[56] During CL's cross-examination Mr. Ayoola played a short video of V. making noises while sitting on CL's lap. CL thought it amusing and she conceded that she sent it to GB on October 19, 2016 at 4:46 PM. Some portions of CL's upper torso are visible and the visible portions of her visible skin do not demonstrate any observable bruising of the sort seen in Exhibits 1, 2, 3 and 5B. The Defence submits that the lack of any visible bruising in the video proves or at the very least ought to raise a reasonable doubt about the authenticity of those exhibits. CL's, (and the Crown's), response is first, that the areas of bruising in the exhibits are covered by the baby's head, which is likely why the remnants of those bruises are not visible. Moreover, in addition to the baby's head CL's hair also impedes any view of the remnant of those bruises. More importantly, the portion of her skin shown in the video, [from which several screen shots were taken, enlarged by the Defence and filed as exhibits], is not the portion sporting the bruising in Exhibits 1, 2, 3 and 5B. And finally, the bruises were inflicted on October 15th in the morning of that day and this video was taken more than four days later, in any event.

Other Purported Irregularities in the Exhibits

[57] GB described himself as a jack-of-all-trades in the area of information technology, although he doesn't write code. Neither he nor CL were qualified as experts but each had admitted facility with many aspects of IT.

[58] During his direct examination GB said Exhibit 1 was "supposed to be a screen shot of an ipad", implying that he doubted its authenticity. Using a video-monitor in the courtroom he displayed an enlargement of Exhibit 2. He pointed to a portion of hair at the shoulder line in the enlarged photo that showed an auburn tint. He testified that he never knew CL to colour her black hair and this, he felt, was a problematic issue with the exhibit. Additionally, the bit of clothing shown in Exhibit 2 appears to be yellow while Exhibit I displays salmon-coloured clothing. Finally, he said that Exhibit 5B purports to have been sent on October 16, 2016. I disagree with this complaint about the date.

[59] I have looked closely and that photo displays a transmission date of October 15, 2016.

[60] Equally, in my view, the "problematic" colour aspects identified by GB are no more than artifacts of reproduction, as a result of the camera that took the photographs and/or as a result of the devices displaying them, and/or the printer that printed them. Moreover, all of these concerns are likely exacerbated by enlarging them for display on the courtroom monitor. That said, I should note that the colour of the bruising in Exhibits 1, 2, 3 and 5B is also subject to these same caveats, especially given the lack of any expert evidence in this proceeding.

[61] As I have noted before, no evidence of any expert examination of Exhibits 1, 2 or 3 or Exhibit 5B was called by either side. Additionally, despite the Crown being satisfied that defence counsel sufficiently complied with Browne v. Dunn fairness dictated that these specific "problems" (sic) with the exhibits ought to have been put to CL when she was testifying.

[62] Be that as it may, Mr. Ayoola did put a more significant challenge directly to CL when dealing with Exhibit 1. He suggested to her that the embedded digital information in a digital photograph, which I have detailed above at paragraph [38] under the heading File Information, was malleable and could be altered. CL testified that it could not be altered to her knowledge. At that point Mr. Ayoola had GB display that exhibit on a monitor and he (GB) then proceeded to alter the ostensible date when the photograph was taken so that the image on the screen no longer displayed October 15, 2016 and a different date was displayed.

[63] That demonstration was surprising to me, as I had thought, until then, that this kind of embedded information was not alterable. More importantly, CL exhibited what I accept and find to be genuine surprise that the date embedded into the digital photograph was alterable.

Access after the Allegation According to CL

[64] CL did not want to stay at his house anymore so GB started coming to her home again but that arrangement faltered because her twins would hide in their room if he came and she couldn't come up with a better plan.

[65] The exercise of access by GB became a constant negotiation and at some point GB promised that there would be no repeat of the events of October 15 but CL would not allow him to come to her home in Ancaster and she refused to return to his home in Brantford.

[66] Some days GB would take V. by himself for a few hours and she would pick her up from his house in Brantford. She said that she did stay over one night after the events of October 15th but was not able to clearly explain what circumstances led to her doing so. The best she could say was that she "must have had something to discuss with him, that's probably the reason I stayed there – in my room."

[67] GB had V. on December 30th or 31st and CL had to pick her up at his home. After doing so she said she emailed him telling him that she would no longer let him come to her home and she would not come to his home either. She testified that she recommended a supervised access exchange and "basically if he want he can find a lawyer to deal with me." GB did so.

[68] In January she received correspondence from GB's counsel accusing her of denying him access, which blossomed into a family law application over custody. That was when CL brought her complaint of sexual assault to the police. She went to the police service in Hamilton, (which services Ancaster where she resided). That police service referred her to the Brantford police as having jurisdiction over the place where the allegation occurred.

Access According to GB

[69] GB did not speak to CL's allegation that he pushed one of her twins. Rather, he began by stating that "she moved in with me. Like on July 31st she moved in and I was happy. I had my daughter and her there living under my roof." As he described the events CL "just kinda showed up" shocking him. His evidence was that she started to move out in late December and the last day she lived with him was December 30, 2016. He said that,

"during that time, to me it seemed to be a sort of happy little existence. We were just kind of playing house. You know, me her and the little one. We'd do things, we'd go shopping, we'd go out, even one time we went to New Brunswick for like a seven-day vacation. We drove down there to meet some friends and family, my friends and family, and CL came along and the three of us went through New Brunswick and PEI, just visiting in-laws that live in the Maritimes."

[70] GB said that they left on October 5, 2016 and came back on October 12, 2016.

[71] GB said CL and V. stayed with him in Brantford four or five nights a week, based primarily on her husband's schedule. If her husband was working an afternoon shift that ended late in the evening then on those nights CL would sleep in Ancaster with her twins and V. But if his shift ended by seven o'clock CL would go to Ancaster to receive her children from school and then come back to Brantford to stay the night. GB said that CL was on maternity leave and therefore had flexibility in setting her schedule.

GB's Denials

[72] Asked by his counsel about CL's specific allegation that GB pinned her hands down and had sexual intercourse with her, GB stated, "that's absolutely false." He went on to add that, "any time we've ever had sexual relationships it was always consensual." He also testified that, "she moved in with me. Like on July 31st she moved in and I was happy. I had my daughter and her there living under my roof. So that would just make no sense for me to sort of destroy that by having unconsensual sex with her. It just makes no sense at all."

[73] When specifically asked if he received Exhibits 2 and 3 GB denied ever receiving them and denied ever having the text message conversation with CL that appears in those exhibits.

GB's Evidence Regarding October 15, 2016

[74] GB said that he did not know if CL was present at his home on October 14 into the 15th. He continued that having "just come back from a vacation [CL] was spending a lot more time at her house because she was away from her kids for close to a week, including a weekend, so she could have very well have been at home at that night. I don't seem to recall that because we got back on the 12th, actually really late on the 11th probably around 11 o'clock on the 11th."

[75] GB's position appeared to be that CL was living with him and their daughter as a family – that "during the day [CL] would go home and receive [her twins] from school, even when [her husband] didn't work late he'd work until at least 5 o'clock. She would go there because she was on maternity leave and pick up her kids at school at 3:30, 3:00 o'clock, whenever school went out and then when her husband came home she would come into Brantford and spend the night."

[76] While GB agreed that she and V. slept in their own room he implied that CL did so as a convenience to herself and out of consideration to him: viz. "during this time she was still breast feeding so she would be getting up in the middle of the night to feed the baby and she didn't want to disturb me because I had to work the next day so she would stay in the other room with V. and make it easier to breast feed."

[77] When GB was pressed by Mr. Dean about whether CL was at his home on the night of October 14, 2016, GB stated that he did not know. He said, "like I said earlier we were gone for such a long time that I can only imagine that she stayed at her Ancaster house." Despite his testimony that CL stayed over at his home four or five nights a week he said that he did not keep a schedule or log of when she came so that he could not be certain of the days that she actually stayed over at his home in Brantford.

[78] After confirming the answer that GB gave in-chief that he did not sexually assault CL, Mr. Dean asked him specifically whether he had a "sexual interaction" with CL in or around October 15, 2016 and his answer was, "I wouldn't remember. It's over two years ago. And once again, I don't keep a log of my events or when she came and gone."

[79] In response to the suggestion that his relationship with CL changed after October 15, 2016 as he never had a sexual relationship with CL ever again, he responded, "Really? Nah, I don't think anything changed. Nothing changed in that relationship until mid-December."

[80] Once again, Mr. Dean put the specific suggestion that GB forced sexual intercourse on CL on the morning of October 15th, to which GB answered:

"I'd have to say no because once again, there's nothing special about those days. And I don't keep records of the time that CL and I were together and I expect she wasn't even there on the weekend once again because of the fact that we were gone so long."

[81] Mr. Dean continued:

Q: And just so the question is perfectly clear did you have sexual intercourse and I'm not framing it in any way, did you have sexual intercourse with CL on October 15, 2016?

A: I don't recall.

Q: And when you say you don't recall do I take your position would be you might have or you might not have you just don't know.

A: As I've said a few times I don't believe she was even there, so if she wasn't there there's no way we could have had sexual relationships on October 15, 2016.

[82] Mr. Dean then turned to Exhibits 1, 2 and 3 and suggested to GB that he did in fact receive the pictures of the bruising sent to him on October 15, 2016. GB made no response for a lengthy period causing me to prompt him to answer by asking him if he had any response to that suggestion. His answer was, "you're entitled to your suggestion but I didn't get it." For reasons that I shall try to explain, I am of the view that that was not a truthful answer.

[83] GB said that shortly after their Maritimes trip CL reverted to their "regular schedule." CL brought V. to his home almost every night until mid-December when CL began to spend more time at her house. Even then she would leave V. with him. He said that for "the last two weeks of December it was actually a ping-pong thing where V. would stay with him one night and with CL one night -back and forth for almost two weeks until December 30th." That was the last time he saw V. He added that this charge was designed by CL to deter him from getting more access time with his daughter.

The Submissions of Counsel for GB

[84] The Crown has failed to discharge its burden of proof that GB had non-consensual sexual intercourse with CL on October 15, 2016.

[85] Her testimony that Exhibits 1, 2 and 3 originated from her iPhone was not corroborated by any police evidence. Indeed, she conceded that she was told by policing authorities that they recovered nothing from her cell phone when she tendered it to them.

[86] The imagery in the exhibits merely displays a headless torso and nothing in those images proves the bruises in them were the result of any sexual activity. More importantly, these images have not been shown to be images of CL.

[87] GB demonstrated that images can be manipulated. He did so when he changed the date of October 15, 2016 that the Crown submits is imbedded into Exhibit 1. Likewise the variations in Exhibit 3 and Exhibit 5B show the screen shots have changes to them and those changes are part of the imagery of these exhibits. Additionally Exhibit 1 purports to be taken on October 15, 2016 and CL testified it was sent on that date yet Exhibits 2 and 3 say they were sent on October 23, 2016.

[88] All of these differences demonstrate that CL manipulated the content of these exhibits through the use of her professional skill set to do so. In the result, the court ought to find that she created these exhibits and therefore they are neither authentic nor do they have any integrity.

[89] Additionally, CL's testimony was riddled with statements that call her credibility into issue as outlined below.

[90] CL said that "S." was GB's nickname for their child. That, Mr. Ayoola says, is not correct. Just look at Exhibit 7, the child's birth certificate. That proves "S." is formally part of her actual name and not a nickname. I am of the view that this submission is of no moment and does not detract from CL's credibility. It is a commonplace that a nickname can include one of a person's given names.

[91] Exhibit 8b shows CL threatened to abort her pregnancy and not GB as claimed by her.

[92] An examination of the stills, (Exhibits 10 and 11), taken from a video that CL sent to GB on October 19, 2016 show no bruising on her, which calls her testimony and the imagery that she provided about those bruises into question.

[93] CL agreed that when she first spoke to the Hamilton police service she did not provide them with the "specific" date of her allegations; i.e., did not tell them this event occurred on October 15, 2016. So, Mr. Ayoola contended that if she was not specific with the police then how can the court rely upon her evidence now? He urges that this is particularly significant given the variation of dates between October 15th in Exhibit 1 and October 23rd in Exhibits 2 and 3.

[94] Leaving the variations of date between Exhibits 1 and 2 and 3, for the moment, I note that I am unable to assess the significance of CL's initial purported lack of specificity to the Hamilton Police as I simply do not know what she said to them or what they asked her.

[95] Further, Mr. Ayoola submitted that she admitted that she told the police that she had told no one about this alleged attack until she spoke to them but she then contradicted herself and said that she did speak to two lawyers about her complaint. This is another cause for concern about her credibility.

[96] Finally, Mr. Ayoola submitted that CL's testimony that she had weak English language skills is an incredible piece of evidence given that she took university course-work in English, and given that she worked as a receptionist in Canada. Having seen and heard her testify there is little to this complaint against her credibility. CL does not use indefinite articles correctly. Likewise she does not properly distinguish between the singular and the plural. She had a distinct accent that identifies her as not being a native and idiomatic speaker of the English language.

[97] Mr. Ayoola submitted that CL was a witness who was ready to shift her position depending on the situation when confronted with contradictions or inconsistencies. Moreover, the discrepancies in the exhibits call the veracity of this allegation into question. This is especially so since these exhibits were never analyzed by any police service.

[98] The Defence contends that there is a clear motive for initiating this allegation. CL would do anything to ensure that custody of V. does not go to GB. This can be seen by her comments about aborting her pregnancy and most importantly by the timing of this allegation, which originated after GB sought to obtain access to his daughter.

[99] In sum, there is no corroboration of this complaint, no medical report confirming the existence of these bruises, no medications taken for this alleged attack, and no timely complaint made. Applying W.D., a verdict of not guilty must be rendered.

The Submissions of the Crown

[100] Mr. Dean submitted that I ought to reject the defence contention that CL created the imagery and the texts shown in Exhibits 1, 2, 3 and 5B. He said there was no real challenge to her evidence, despite the fact that she did not attend upon a doctor after she was assaulted.

[101] The Crown invited me to treat GB's evidence with caution for two main reasons. First, the Crown submits that CL's technical skills are a red herring because GB admitted that he had the same skill set as CL. (I fail to see the logic of that submission.) Second, GB admitted that the two text message addresses shown in the exhibits were his and yet despite that he denied receiving the photographs or authoring the texts in Exhibits 1, 2, 3 or 5B.

[102] Mr. Dean asks me to reject GB's denials that he did not receive these images or take part in the messages they contain and to reject GB's denials of culpability and therefore find him guilty. In the Crown's submission GB's denials were ambiguous. Mr. Dean submits GB was not definite in his denials and at best he testified that he did not recall any such incident. To be fair, however, I note that GB clearly stated that he never engaged in non-consensual sex with CL.

[103] Mr. Dean made the following responses to Mr. Ayoola's submissions:

the Defence complaint about CL's vocabulary is insignificant;
the Defence complaint about a lack of recent complaint is contrary to law; but, in any event, the question, "have you told anyone?" implies family or friends not counsel;
moreover, it makes sense that having approached counsel, a client would be advised to contact the police as the behaviour complained about is relevant to the issue of GB's fitness to exercise access so that the timing of her complaint is not suspicious;
the comments CL made in Exhibit 8b are not relevant to her credibility but given the tenor of that exchange they are understandable as explained by her; namely, as an effort to keep GB out of her life;
it is her torso in the exhibits – they are the kind of photographs, without a full body orienting shot, that a novice seeking to document an injury would take.

[104] In the Crown's submission all of these explanations are reasonable in context so that accepting them would not amount to an exercise of uneven scrutiny of the complainant's evidence as compared to GB's.

[105] All of that said, the Crown had no explanation for why the date October 23 appears in Exhibits 2 and 3 rather than October 15, the date when CL said she took the photographs and sent them to GB. Notwithstanding, Mr. Dean urges that I ought to accept CL's evidence that she took the photographs on October 15th as shown in the embedded File Information in Exhibit 1; and, that she sent them to GB on that date as noted in their exchange of texts from that day.

Mr. Ayoola's Reply

[106] This is not a contest about who one believes. The possibility or even the probability of guilt is not sufficient. The accused need not prove his innocence. There is no onus of proof on the accused. The Crown's case is of insufficient weight and clarity to entitle the court to conclude the allegation has been proved to the exclusion of any reasonable doubt for the reasons detailed previously.

Discussion and Judgment

[107] I find GB not guilty of sexual assault. I have a reasonable doubt about whether the events of October 15, 2016 were non-consensual. Moreover, there is no lesser but included offence that has been proved to the exclusion of any reasonable doubt.

[108] I find that GB caused the bruising displayed in Exhibits 1, 2, 3 and 5B and that that bruising amounts, if barely, to bodily harm. Notwithstanding, there are two reasons why a conviction for the offence of assault causing bodily harm is unavailable. First, the wording of the information precludes such a conviction. Second, for reasons that I shall explain, I have a reasonable doubt that the evidence demonstrates that GB had the mens rea for that lesser offence. Finally, given my conclusion that I have a reasonable doubt about whether the contact between GB and CL was non-consensual and given that I have a reasonable doubt about whether it has been proved that GB had the mens rea for assault causing bodily harm, I am of the view that a conviction for the offence of assault level one is also not available. My reasons and reasoning is set out next.

Credibility of GB

[109] GB swore that he did not receive Exhibits 2 and 3 and that he did not send or receive the text messages set out in those exhibits. I do not believe him. I reject that evidence as I shall explain. As a result of rejecting his denial of receiving the pictures and participating in the text messaging disclosed by Exhibits 2 and 3 I do not repose trust in or accept his testimony. I find his denials respecting his receipt of and participation in Exhibits 2 and 3 to be untruthful. In the result, I reject his denials of culpability for committing a sexual assault upon CL and those denials and his evidence do not raise a reasonable doubt as to his guilt in my mind.

[110] Nonetheless my rejection of his denials, and indeed of most of his evidence so far as his relationship with CL is concerned, does not mean that I must accept the complainant's evidence holus bolus. I do not for reasons that I shall outline.

Authenticity of Exhibits

[111] For now I simply note that the Defence theory is that Exhibits 1, 2, 3 and 5B are hoaxes or forgeries, which CL created to ensnare GB. I do not accept that. I simply do not believe it. That contention is implausible. There were and still are too many ways and means to expose such a hoax for that contention to be credible. Those ways and means include back-tracking CL's text messaging contacts along with the risk of exposure by police, forensic or other expert examination, which her production of these exhibits could reasonably and foreseeably be subjected to.

[112] While I am satisfied that Exhibits 1, 2, 3 and 5B are authentic and genuine they do not "prove" CL's allegation of sexual assault is true. Nor am I satisfied that Exhibits 2 and 3 set out the complete exchange of text messages between GB and CL from October 15, 2016. In that regard I note the following observation made by Justice Cromwell in R. v. J.M.H., 2011 SCC 45 at paragraph [32], "… that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond a reasonable doubt."

Sources of Reasonable Doubt

[113] My reasonable doubt about whether GB touched CL sexually and on a non-consensual basis as charged arises from a number of different sources, including all of the following ones. These pieces of evidence, absences of evidence or questions arising from the evidence are not provided in any ordered fashion. I do not intend to suggest that one topic or item is more important than another. I am merely trying to verbalize, as best as I can, why the evidence called in this case has not convinced me to the exclusion of any reasonable doubt that GB has been proved guilty.

[114] CL's description of the event is a sketch in many respects. Her complete description of the events is set out above at paragraphs [25] to [30].

[115] She testified that people were looking at her strangely on her way home and surmised that they had been reacting to the bruising that GB inflicted upon her. However, it was mid-October and she was driving. It is difficult for me to understand how anyone would have had the opportunity to see these bruises in those circumstances.

[116] CL controlled the copies of the documents that she produced for the police. There was no independent police examination of her devices, other than her cell phone from which she had deleted her texts to GB. The digital picture of the second bruise, with the File Information about that photograph was never tendered in evidence.

[117] She was contradicted by her own prior texts to GB about who was suggesting that she abort her pregnancy. This only became apparent when she was confronted with texts that GB had saved and was able to retrieve; i.e. Exhibit 8b.

[118] She said nothing in her October 15, 2016 text exchanges with GB about having been sexually assaulted. Nor did she suggest or imply that anything that occurred between them was non-consensual; i.e., Exhibits 2 and 3. She made no complaint in that exchange about any assault and merely said, "You have to be careful with a baby around".

[119] While she testified that she produced the complete exchange of text messages from that day with him I do not accept her evidence in that regard. In my view that cannot be the case. What CL produced to the police begins with GB saying in Exhibit 2, "This is the first time you're seeing it." That has to be part of a longer text message or a response to something that CL did not produce to the police. Likewise, the first words from GB in Exhibit 3, which is part of the same text message exchange as Exhibit 2 were, "Same question". I have serious doubts that CL was being truthful when she testified that she had reproduced and provided the whole exchange of messages between them from that date.

[120] The series of what I'll call the symbol "(Y)" repeated for eight lines at the top of Exhibit 2, which CL could not explain, also causes me to believe that a part or parts of this exchange of text messages is not complete.

[121] While I understand that people can react to trauma differently, CL's complaint was that she was sexually violated and left GB's home after this event. In light of what she alleged it is hard to understand why she would reconnect with him to send him a video of their daughter on October 19, 2016. It must be recalled that CL is a person who was prepared to threaten police intervention when that suited her purposes, as disclosed in Exhibit 8b.

[122] Despite alleging that she was raped by him she conceded that she slept over at his house on at least one other occasion after this allegation. Her explanation for doing so being that she must have had something to talk to him about.

[123] The timing of the complaint coming as it did only after she received a "lawyer's letter" alleging that she was denying GB access to their daughter is another matter that weighs in the balance towards reasonable doubt.

[124] Despite the fact that CL does not speak idiomatic English, these bruises are not on her neck and she clearly knows the names for the parts of a human body. She said that GB put his mouth on her neck and caused these bruises but the pictures do not show bruises on her neck.

[125] The manner of her evidence and the intangibles that can raise a reasonable doubt which cannot be verbalized also play a part in my conclusion.

[126] While these are some of the reasons that have caused me to have a reasonable doubt about whether GB sexually assaulted CL as she alleged I have no doubt that GB applied force to her on October 15, 2016 and that application of force, even if it may have been consensual, occasioned bodily harm to her.

Bodily Harm and Mens Rea

[127] While I have a reasonable doubt about whether GB engaged in non-consensual sexual intercourse with CL on October 15, 2016, I have no doubt that he caused the bruises to her. Whether they are bite marks or "hickeys" is not clear. Despite that I accept her evidence that GB used his mouth on her body on that occasion and caused the bruises to her and that she took pictures of those bruises.

[128] Further, I am satisfied those bruises meet the definition of bodily harm, if only barely so and at the lowest end of the spectrum of bodily harm. (See R. v. Moquin, 2010 MBCA 22.)

[129] To repeat, I am of the view that GB is not liable to a conviction for the offence of assault causing bodily harm for causing these bruises for two reasons.

[130] First, that offence is not an included offence based upon the wording of the charge of sexual assault as set out in this information.

[131] Second, given the evidence adduced by the Crown, I have a reasonable doubt that GB had the mens rea for the offence of assault causing bodily harm, as I shall explain momentarily.

[132] Finally, given that I have a reasonable doubt that he committed the offence of assault level two, I am also of the view that he is not liable to be convicted of assault level one as an included offence of sexual assault because of my reasonable doubt that his contact with CL on October 15, 2016 was non-consensual.

[133] Exhibit 3 was tendered by the Crown as part of its case-in-chief. In that exhibit GB had a text message exchange with CL in which he referred to the bruises saying: "It wasn't done purposely". In my view what he was saying was that he did not mean to cause those bruises; that he did not cause them or create them on purpose. In these circumstances a conviction of assault causing bodily harm is unavailable.

[134] Before one can be convicted of assault causing bodily harm the risk of causing bodily harm must be objectively foreseeable. (See R. v. L.P., [2003] O.J. No. 251 at paragraph [15].) Arguably "biting" during the throes of passion risks causing bodily harm on an objectively foreseeable basis, though that is not necessarily the case, especially where skin is not broken. That said, inflicting a "hickey" would not meet the test of a risk of objectively foreseeable bodily harm, in my view.

[135] While CL testified that her bruises were the result of GB putting his mouth on her "neck" (sic), she admitted under cross-examination that she used the word "bite" because that was the best word she could come up with given that English was not her native tongue.

[136] While the risk of bodily harm must be foreseeable, R. v. Quashie at paragraph [57] holds that in order for bodily harm to vitiate consent it must be shown that bodily harm was caused to a complainant and that the accused intended to inflict bodily harm on the complainant.

[137] Given the statement of GB in Exhibit 3, ("It wasn't done purposely") I have a reasonable doubt that GB intended to inflict bodily harm on CL. In addition, given CL's language deficits her use of the word "bite" to describe what GB did causes me to doubt that GB's placing his mouth on her body foreseeably risked causing bodily harm to her.

[138] In the result I find GB not guilty as charged.

Electronic Document Evidence

[139] While the foregoing is all that is necessary for this judgment I propose to comment on the electronic document evidence adduced in this case.

[140] To begin with, neither counsel referred to the provisions of the Canada Evidence Act. Those provisions deal with the authentication and therefore potential admissibility and ultimately the integrity of electronic document evidence systems used to produce such evidence as was adduced in this case. Had counsel done so, the complaints made by the Defence would have been properly focused and the Crown may have been in a position to respond to a number of issues about those documents that were left unanswered.

[141] The testimony of CL about the provenance of Exhibits 1, 2, 3 and 5B met the low threshold of "some evidence" that the document being tendered is what it is purported to be. (See R. v. Hirsch, 2017 SKCA 14 at paragraph [18].)

[142] The Defence complaint raised that some copies of the documents were not identical is answered by G.B. Butler J.'s judgment in R. v. Hamdan, [2017] B.C.J. No. 986 (S.C.) which holds that an electronic document need not be identical to the digital file.

[143] The most contentious issue respecting the electronic documents in this case is the question of whether the Crown had established the integrity of the documents, particularly in the face of the Defence contention that they were forgeries. That issue falls to be decided, at least in part, by recourse to sections 31.2 and 31.3 of the Canada Evidence Act. Given the result that I have arrived at, (albeit with reliance upon aspects of these electronic documents tendered by the Crown and authenticated by the complainant), this question does not require a definitive answer. Nonetheless, given my reliance on Exhibits 1, 2, 3 and 5B I offer the following justification for that reliance.

[144] No formal evidence was called to establish the integrity of the electronic document systems by which the electronic document exhibits came to be created. Moreover, little evidence was called about the provenance of these documents. The evidence that was called came from CL and that evidence has been detailed previously in this judgment. Even with the paucity of any direct evidence of the integrity of the electronic document system from which the contested exhibits derive, there is some circumstantial evidence that provides proof of the integrity of the electronic document system that was used to create, store and permit access to the items so created and stored.

[145] There were a number of aspects of the evidence that caused me to rely upon Exhibits 1, 2, 3 and 5B which I shall attempt to outline.

[146] First, GB's admission that he exchanged the text messages with CL that were entered as Exhibit 8a and especially 8b. The nature and tenor of the exchanges there, seem similar to the messages exchanged in Exhibits 2 and 3 (and 5b).

[147] CL did not dispute the integrity of the lengthy exchange of text messages comprised by Exhibit 8b.

[148] GB's name "[…]" is the name he appears under in Exhibits 2 and 3 and CL explained why she styled the file she accessed later as "G".

[149] CL's evidence that she had synchronized her various electronic devices to automatically get backed-up on iCloud, a remote storage system, explains why she was able to access materials that she sent to GB after she had deleted them from the internal storage system of some of her electronic devices. An automatic back-up system to protect digitally saved information by saving it in more than one place or on more than one computer drive, for example, is a commonplace occurrence. I believed her about that.

[150] Likewise, deleting files from the internal storage system of a device, (or computer drive), while retaining those same files elsewhere, is an equally commonplace occurrence.

[151] Relying upon demeanour alone is an unsafe basis upon which to make a finding of credibility. Nonetheless, it can be relied upon in conjunction with other evidence. In this case when the Defence demonstrated to CL that the date October 15, 2016 that she believed was indelibly embedded in Exhibit 1 could be changed, CL was genuinely surprised. She said that she did not know that such a change could occur. I watched her reaction to GB's demonstration and found that her astonishment was genuine.

[152] I have no doubt that it is CL's torso displayed in Exhibits 1, 2, 3 and 5B. It is her physique and whether they are moles, age spots or freckles, a close comparison of these exhibits to Exhibits 10 and 11 show a similar display of skin spotting.

[153] GB made an issue of the name "S." That is how he referred to his child in Exhibit 3.

[154] Ultimately, I return to my analogy of The Man Who Never Was. I believe much of what CL testified to. I therefore find Exhibits 1, 2, 3 and 5B to be genuine and not forgeries. It makes no sense to me that CL could be so devious as to create these exhibits and pick the date of October 15, 2016 to include in them and yet be so dumb as not to recall that she sent a video on October 19, 2016 that would or at least could prove these items were forgeries, if they were forgeries.

[155] Consequently I am satisfied to the exclusion of any reasonable doubt that CL took the photographs of herself, that GB got the photographs from CL and that he engaged in the text messages contained in those exhibits. His denial of having done so demonstrates that he is incredible and unworthy of belief.

Dated at Brantford this 28th day of June, 2019

J.S. Nadel, OCJ

R. v. G.B., 2019 ONCJ 563

Case Summary