WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

Date: October 29, 2019

Court File No: 17-1054

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

M.J.

Before: Justice Michael G. March

Heard on: April 26, 2018, October 19, 2018, March 27, 2019

Reasons for Judgment released on: October 29, 2019

Counsel:

• Lauren Rock and Caitlin Downing — Counsel for the Crown
• Mark Ertel — Counsel for the Accused

Judgment

March, M.G., J.:

Introduction

[1] The accused, M.J., stands charged that between September 1, 2014 and September 30, 2015, he:

a) did break and enter a certain residence situated in Bonnechere Valley Township with intent to commit an indictable offence therein contrary to section 348(1)(a) of the Criminal Code ("the Code"),

b) did commit a sexual assault on A.O. contrary to section 271 of the Criminal Code, and

c) did by word of mouth knowingly utter a threat to A.O. to cause harm to A.O. contrary to section 264.1(1)(a) of the Criminal Code.

[2] M.J.'s trial proceeded before me over the course of three days, namely April 26, 2018, October 19, 2018 and March 27, 2019.

[3] The Crown called three witnesses, A.O., M.W. and G.G., in an attempt to prove M.J.'s guilt beyond a reasonable doubt.

[4] M.J. testified in his own defence and denied committing any of the offences with which he has been charged.

[5] I shall review the relevant evidence of each witness called at trial.

Relevant Evidence

A.O.

[6] The complainant, A.O., grew up in North Gower, Ontario.

[7] In terms of education, A.O. graduated high school. She received a college diploma qualifying her to be employed as a personal support worker. For a time as well, she studied at Carleton University.

[8] In or about January 2010, A.O. started into a common law relationship with M.W. The couple shared a rural residence in Bonnechere Valley Township, Ontario.

[9] A.O. left the relationship and moved out with their daughter, A., on Christmas Eve, 2014.

[10] The accused, M.J., lived alone on an abutting property over the course of the years that M.W. and A.O. were together. M.J. is a relative of M.W.

[11] M.J. would casually visit M.W. to have coffee with him. Occasionally, they worked and helped one another. Over time, A.O. came to know M.J. as a friend too.

[12] In the fall of 2014, A.O. was doing her laundry in the basement of her home. All of a sudden, M.J. was present behind her. He grabbed her. He put his hand up her shirt. He squeezed her so hard. He tried putting his hands in her pants.

[13] A.O. and M.J. struggled with one another. She felt overpowered. They moved in a circular manner. A.O. was trying to get M.J. toward the door.

[14] En route, A.O. and M.J. ended up against a pool table. She was attempting to speak very casually with M.J. thinking if she remained calm, M.J. would leave.

[15] To A.O., M.J. wanted to get her up on the pool table. She estimated that they were halfway upon it.

[16] They went over its back corner. Then they began going around and around it.

[17] A nearby heavy door was open. A.O. managed to maneuver M.J. toward it. She relied upon her personal support worker experience to accomplish this. He went out onto the deck, acted casual, lit a cigarette and laughed.

[18] He told A.O. that M.W. would never believe her if she told him what had just occurred.

[19] M.J. reminded A.O. that he has a big tractor and lots of land. He could dig holes upon his property where no one could ever find them. He added that the next time, he will have to bring a rope.

[20] A.O. believed that M.J. was saying he could bury her. No one would be able to find her because she does not have family in the area.

[21] M.J. left shortly afterward. A.O. had a shower. She then laid in bed and cried until M.W. and their daughter, A., came home.

[22] M.W. had gone to collect their daughter from the bus.

[23] A.O. told her counsellor of some three years at that point what had occurred. She also spoke to her lawyer's assistant in trying to decide what to do. She felt that she was receiving pressure from M.J.'s family not to call the police, and in particular, from M.W.'s Aunt M., who is M.J.'s adoptive mother.

[24] A.O. felt overwhelmed at the depth of the depravity to which she was subjected.

[25] She explained that she wanted to go to the police right away, but following discussions with her counsellor, she decided instead to keep her focus on her daughter and herself.

[26] A.O. needed all of her strength to leave the home she shared with M.W. in order to take their daughter, A., with her to a safe place.

[27] A.O. found an apartment as fast as she could. A. and she moved into it at Christmas time.

[28] A.O. never spoke with Aunt M. again after the incident.

[29] A.O. explained that when she left the home, she had to leave her German Shepherd and A.'s little horse, Kingy, behind. M.W. was left to care for the animals alone.

[30] M.W. ended up shooting the horse.

[31] A.O. believed that M.J. began a terror campaign against her after she left M.W. She felt that M.J. knew that she was not going to keep quiet about the incident.

[32] A.O. recalled that M.J. arranged for a municipal by-law officer to write a letter explaining that M.J. had the right to shoot her horse and her dog, if they went on his farm.

[33] A.O. explained that she tried to tell M.W. about the incident with M.J., but it just could not come out.

[34] A.O. confronted M.J. the day that M.W. got the letter from the by-law officer. She walked up the road. Her good friend, G.G., followed her. She found M.J. on his tractor in front of Aunt M.'s house.

[35] A.O. shook the letter at M.J. She asked him, "If you have the right to kill my dog and my little horse, what should happen to you?"

[36] It was clear to A.O. that M.J. wanted to obtain permission to shoot her guard dog. To her mind, M.W. shot Kingy out of fear that Kingy would spook M.J.'s big horses, and in doing so, would injure them. M.J. would then sue A.O. and M.W.

[37] A.O. also felt that M.J. wanted her guard dog shot, so that the next time he could come into her house. This was very clear to her.

[38] When confronted, M.J. turned "beet red" according to A.O. He then ran into Aunt M.'s house.

[39] A.O.'s motivation for going to the police with her complaint about the incident was to protect not just herself, but her daughter, and sisters and mothers in general. She added that the police had encouraged her to come forward as well, when she was ready to do so.

[40] Under cross-examination, A.O. clarified that M.W. received the letter in the mail. He showed it to her when he got home from work.

[41] A.O. estimated that the span of time between the incident involving M.J. and her in the basement of her home and receipt of the letter was a month and a half or so.

[42] She believed that she became aware of the letter in the fall of 2014.

[43] A.O. confirmed that she has a close relationship with her animals.

[44] In terms of the sequence of events, A.O. testified that she had told G.G. about the incident before the day that she went to confront M.J. accompanied by G.G. She believed she told G.G. of the incident in the fall of 2014.

[45] A.O. spoke also to a male police officer on March 25, 2015, the day Kingy was shot. She provided the officer with an account of what happened involving M.J. The officer encouraged her to come in to the station, but she was unable to do so.

[46] A.O. explained further that prior to the day she received the letter, her guard dog, Shadow, used to run loose. After the letter was received, the dog was always tied by the back door, blocking the way into her home which M.J. used to enter the day of the basement incident.

[47] When confronting M.J., A.O. could not recall the exact words that she used. She did articulate that M.J. came into her house, attacked her and now what should happen to him as a result. That was the sentiment of what she was yelling and screaming. She was driven by fear and anger. She was not going to live in fear anymore.

[48] A.O. vehemently denied that M.J. ever complained about her animals running loose until after his attack upon her. He did however complain about a previous dog she owned, Oscar. She confirmed that M.J.'s chief complaint about the dog was the problems caused when his horses were startled by it. On one occasion as well, M.J. put Kingy on a trailer after he caught him on or near his property. He called A.O. to ask her to come and retrieve her animal from him. However, A.O. insisted that M.J. was not bothered by finding Kingy roaming.

[49] A.O. maintained that there was no animosity between M.J. and her in spite of the problems with their animals, until he attacked her in her house.

[50] A.O. also recalled an occasion where M.J.'s dog and her dog engaged in a fight. M.J. informed A.O. that his dog would kill her dog, and that it was not a good idea for them to play together.

[51] A.O. explained that she did not receive support from M.W. when she told him about the incident with M.J. Instead, M.W. isolated himself. He did not want to communicate with her about it.

[52] When it was suggested to A.O. that she moved to her apartment at Christmas time in 2015, she initially rejected the notion. However, she went on to express confusion about the years. She was adamant nevertheless that she moved on Christmas Eve, and that Kingy was shot on March 25th.

[53] Eventually, A.O. conceded that 2015 may have been the year she moved into the apartment, and March 25, 2016 may have been the date that Kingy was shot. On that basis, the Crown sought leave and I granted an amendment to the time frame of the Information to expand the dates within which the offences were alleged to have occurred from Sept. 1, 2014 to Sept. 30, 2015.

[54] At the time of testifying, A.O. stated that she was close to M.W. still, and that G.G. was her best friend of some 19 years.

M.W.

[55] M.W. confirmed that he lived with A.O. in their rural residence for a period of about five years.

[56] M.J. resided roughly half a kilometre up the road from M.W.'s and A.O.'s home.

[57] M.J. would come to their property to plow snow, and occasionally to cut some trees.

[58] M.W. was clear that M.J. did not have permission to enter his home, nor did he have a key to the residence.

[59] According to M.W., M.J., A.O. and he always got along pretty well.

[60] There came a point in time, however, when A.O.'s attitude towards M.J. changed. After that, she did not want to see M.J. In turn, M.W. stayed out of M.J.'s way, and M.J. stayed out of M.W.'s.

[61] M.W. recalled that he learned of the incident involving M.J. and A.O. the day she went up to Aunt M.'s place. M.W. followed A.O. there.

[62] M.W. remembered as well that A.O. received a letter from a by-law officer stating that M.J. had permission to shoot the horse or the dog.

[63] A.O. told M.W. about the letter. He was uncertain if she showed it to him.

[64] M.W. believed that the letter from the by-law officer was received perhaps a year before A.O. went to Aunt M.'s place to confront M.J.

[65] M.W. did not think the letter had anything to do with A.O.'s account to him that M.J. had attempted to touch her in a sexual manner in their home.

[66] M.W. did not know whether M.J. had heavy enough equipment to be able to bury a horse on his property, although M.J. did have a tractor. M.J. did use the tractor to move the trees he cut.

[67] M.W. described the layout of his house. The downstairs or basement door did lead to the laundry room area. There was a pool table in that section of the house as well. The pool table was located in the recreation room where a spiral staircase went up to the main level. A hand-drawn sketch by M.W. of the layout of the basement area of his home was made Exhibit 1 on the trial.

[68] M.W. recalled that A.O. moved out of their residence on December 24th. In his view, she did so because she no longer felt safe in the home.

[69] M.W. reiterated that he first learned of the incident that occurred between A.O. and M.J. when she went to confront him at Aunt M.'s place. M.W. was not at all sure when the confrontation occurred. He could only be certain that there was no snow on the ground at the time.

[70] During the confrontation, it was clear to M.W. that Aunt M. was not going to take A.O.'s side.

[71] M.W. attributed to M.J. a comment that it was a situation of "he says, she says."

[72] A.O. then moved out roughly a couple of months later.

[73] In terms of A.O.'s behaviour, M.W. observed that she was more often upset, and the occasions where she got ". . . on his case" increased.

[74] M.W. did not remember many complaints about A.O.'s animals going onto M.J.'s property.

[75] However, M.W. did recall that Kingy was not castrated, so the horses belonging to M.J. would be disturbed by Kingy's presence.

[76] M.W. added that he would keep A.O.'s and his animals in as much as possible. They were not permitted to run loose.

[77] M.W. did not recall ever discouraging A.O. from going to the police with a complaint about the incident.

[78] M.W. was not sure whether Aunt M. ever called A.O. after the confrontation.

[79] Under cross-examination, M.W. could not recall whether G.G. was present or not when A.O. went to confront M.J. M.W. thought it was just A.O. and him there. It occurred in the summertime.

[80] Aunt M. came outside. A.O. was yelling. She was upset. Aunt M. may have been crying.

[81] M.W. explained that when A.O. was bothered by something, she could speak loudly.

[82] When squarely confronted, to M.W.'s mind, M.J. neither confirmed nor denied what A.O. said he did to her.

[83] On one occasion, M.W. did ask Aunt M. if she thought M.J. was capable of killing someone.

[84] M.W. agreed that A.O. was quite attached to her animals. She still has her German shepherd, Shadow.

[85] M.W. could not recollect whether he saw the letter from the by-law officer or not. He was certain, however, that one existed. Usually, A.O. would collect the mail when they lived together.

[86] It was A.O. who brought the letter to M.W.'s attention. She was upset by it.

[87] M.W. recalled receiving perhaps a few telephone calls prior to receipt of the letter about their animals being loose on M.J.'s property.

[88] A.O. would just go and retrieve them. She was not angered by the fact that she was being called to collect their animals.

[89] M.W. confirmed that A.O. told him some of the details about the assault which she said M.J. perpetrated upon her. M.W. thought that A.O. would have liked for him to have done more to address the situation. M.J. is M.W.'s cousin.

[90] M.W. was able to observe that A.O. would be bothered at the sight of M.J. She would grow angry, even more so, if M.W. interacted with M.J. She did not want M.W. to have anything to do with M.J.

[91] In re-examination, M.W. was asked why he would have inquired of Aunt M. whether she thought M.J. was capable of killing someone. M.W. explained that he thought everyone is capable of killing someone.

G.G.

[92] G.G. described his relationship to A.O. as a friend. He estimated that they have known one another for roughly 15 years.

[93] G.G. also knew M.J. They went to school together.

[94] G.G. was familiar with M.W. as well. His father and M.W.'s father were friends.

[95] G.G. recalled going with A.O. when she confronted M.J. about the letter from the by-law officer. G.G. understood that M.J. had been babbling about the dogs. G.G. felt that M.J. was going to shoot A.O.'s dog if it went on to his property. A.O. was upset by this.

[96] G.G. thought that only M.J., A.O. and he were present during this confrontation.

[97] G.G. understood that what A.O. said happened to her at the hands of M.J. in her basement occurred a year or two previously. To G.G.'s mind, the letter was the tipping point for A.O. She was determined to confront M.J. G.G. thus felt obliged to accompany her.

[98] G.G. thought that he learned of M.J.'s attempts to touch A.O. inappropriately the very day of the confrontation.

[99] G.G. described A.O. as hurting and crying when she told him about the sexual touching incident.

[100] G.G. could not recall M.J. saying anything when confronted by A.O. He did not have a chance. She was the one doing the talking.

[101] Under cross-examination, G.G. confirmed a particular sequence of events. A.O. received the by-law officer's letter. She next told G.G. about M.J.'s assault upon her in her basement. Together they then went to confront M.J. about the content of the letter.

[102] G.G. testified that he knew of Aunt M., but he has never met her.

[103] G.G. confirmed that M.W. was not present during the confrontation.

[104] In re-examination, G.G. allowed for the possibility that he learned from A.O. of the assault a week before the letter was received by her.

[105] G.G. further increased the span of time between the basement incident and the confrontation from a year or two, to two to three years.

M.J.

[106] At the time he testified on October 19, 2018, M.J. was 57 years of age. He lived alone on a rural property near Eganville, Ontario.

[107] M.J.'s property constitutes a 150 acre tract of land.

[108] Aunt M. has been M.J.'s foster mother since he was 15 years of age. Her property neighbours his and measures 209 acres in size.

[109] M.W.'s property also abuts M.J.'s and encompasses 33 acres.

[110] M.W. was, of course, Aunt M.'s nephew.

[111] M.J. described his occupation as a lumberman and a farmer.

[112] At or about the time the sexual touching incident is alleged to have occurred, M.J. had roughly 25 head of beef cattle, and 8 or 9 horses. He also owned a German Shepherd.

[113] M.J. confirmed that in 2015, A.O. lived with M.W. A.O. had a German Shepherd as well. She also owned a miniature horse.

[114] M.J. recalled that his cattle would go through the fences when A.O.'s dog roamed on his land. At times, he would have to go and herd the cattle if they escaped.

[115] Further, the pony was a stallion. As a strange breeding male, his mares would kick and smash the fences when the pony was around.

[116] Repairing fences was a serious bother to M.J. He would have to replace 2 x 6 posts and obtain new wire to contain his animals.

[117] M.J. complained many times to A.O. and M.W. about the havoc their pets caused for him.

[118] On several occasions, M.J. was required to catch the little stallion, put him in his horse trailer, and ask A.O. or M.W. to come and get him. M.J. would never be able to capture their dog.

[119] M.J. maintained that A.O. and M.W. never did anything to pen their animals.

[120] On the last occasion that M.J. complained about loose animals, he remembered that his toes were cut from a chainsaw accident. He was having trouble walking.

[121] He attended at A.O.'s and M.W.'s residence. A.O. answered the door. He told her, "This stops now." He was "pissed."

[122] M.J. could not recall how, if at all, A.O. reacted.

[123] He testified that he never went into the residence when A.O. was alone there.

[124] He denied that he ever tried to touch A.O. in a sexual manner.

[125] After confronting A.O. about the problem caused by her loose animals, he called the by-law officer and asked if a letter could be sent to A.O. and M.W. regarding the problem.

[126] The next time M.J. saw A.O., she was coming down the hill with G.G. M.W. was not with them. M.J. was at his mother's house. Aunt M. was 87 at that time. When M.J. testified, she was 90 years of age.

[127] M.J. walked outside the house. Aunt M. stood at the door.

[128] G.G. did not say anything. A.O. told M.J., "Nobody can do this to me. I'll get even with you."

[129] During the confrontation, A.O. mentioned the letter. She added, "It won't be no by-law officer. It will be the cops. I'll charge you with rape."

[130] M.J. walked away.

[131] M.J. admitted to his criminal record and it was marked Exhibit 2 on the trial. In 2010, he was convicted of sexual assault, and in 2011, forcible confinement. He has never been found guilty of a crime of dishonesty.

[132] He never spoke to A.O. again after their confrontation. He was unaware that she had moved away from the residence she shared with M.W.

[133] Under cross-examination, M.J. agreed that he has known M.W. for a long time. M.W. is one of his family members.

[134] M.W. himself has been living near M.J. for some 42 years.

[135] M.J. agreed that when A.O. first went to live with M.W., they were all friendly with one another.

[136] M.W. did not have animals prior thereto.

[137] M.J. explained that there were occasions when his horses would go on to M.W.'s property. However, he maintained his fences, because it was unacceptable for the horses to escape onto the road.

[138] A motorist could be killed in the event of a collision with one of the horses. Traffic along the road upon which M.W. and he live has increased over the years. M.J. did not want to be sued.

[139] For that reason, M.J. must have good fences.

[140] M.J. proclaimed that his animals rarely got out. It would happen perhaps once per year.

[141] M.J. denied that A.O.'s small dog, Oscar, ever ventured onto his property. He was unaware of A.O. owning a small dog. The miniature horse, Kingy, a stallion, did.

[142] M.J. believed it was in 2015 that he had the conversation in person with the by-law officer about how to prevent animals from wandering onto his property. M.J. was fixing his fence when the by-law officer arrived. Before leaving, the by-law officer agreed to send a letter to M.W. and A.O. about their loose animals.

[143] M.J. called the by-law officer because A.O.'s miniature stallion was chasing his mares around the 30 acre field. The stallion remained outside the fence. The mares were inside. They were scared and kicking at the fence with their back legs toward the stallion. They smashed the fence as a result.

[144] When this occurs, there is a risk of injury, of course, to the mares' legs. There is also the danger that the animals will escape their enclosure.

[145] Consequently, M.J. had had enough.

[146] M.J. testified that he has not seen a horse die in some 30 years. He would usually get rid of his horses before they died.

[147] He denied ever threatening to dig a hole in which to bury A.O. if she ever told anyone about how he came into her home, and what he tried to do to her in the basement.

[148] He vehemently refuted the suggestion that he ever attempted to have sex with A.O.

[149] He agreed that he was aware that A.O. and M.W. use the back door in the basement to get in and out of their residence. Accordingly, M.J. knew how to enter the residence. In fact, that was the door M.J. used to bang on when he confronted A.O. about her loose miniature stallion. He did not know or care if M.W. was home at the time or not.

[150] M.J. reiterated this was not the first time that he had problems with A.O.'s loose animals, both the miniature horse and the German Shepherd.

[151] M.J.'s toes were still injured at the time of going to confront A.O. at her door. He was not sure if he was still on crutches. He could barely walk. He was hobbling. It was not until the winter of 2017 that his toes were completely healed.

[152] M.J. testified that he usually visited the residence when M.W. was there.

[153] When A.O. came to confront M.J. at Aunt M.'s place, he did not know whether A.O. was in physical possession of the letter from the by-law officer. He did not see the actual letter. A.O. only told M.J. that she had the letter. She was very upset at the time. He denied that M.W. was present, but G.G. and Aunt M. were. Aunt M. was crying.

[154] M.J. could not recall what he said to A.O. when she accused him of having touched her sexually. He could not deny whether he actually said in reply to her allegation, "he says, she says."

[155] M.J.'s recollection was that there were no further problems with the stallion running loose on his property after the letter was sent to A.O. by the by-law officer.

[156] The next time, M.J. surmised, that there had been a problem with the stallion, the animal was dead in his yard. M.W. had shot the miniature horse.

[157] In total, M.J. estimated that he had been bothered by loose animals belonging to A.O. or M.W. for a period of approximately 6 to 12 months.

[158] M.J. denied that he only began to complain about A.O.'s and M.W.'s loose animals after he had attempted to sexually assault A.O.

[159] M.J. speculated that A.O. falsely accused him of sexually assaulting her because she was so incensed by the call he had made to the by-law officer to complain about her loose animals. The miniature horse was A.O.'s baby according to M.J. He understood the love a person can have for an animal.

[160] M.J. thought that A.O. was "bullshitting" about making a rape allegation against him.

[161] M.J. estimated that three or four days after he confronted A.O. about her loose animals on his property for the final time, she came to speak to him at Aunt M.'s place.

[162] M.J. agreed that he never told M.W. that he was against shooting the horse as the by-law officer suggested.

[163] M.J. confirmed that he has been in the basement of M.W.'s and A.O.'s residence in the past on one cold winter morning to have coffee with M.W. M.J. was thus aware of the presence of a pool table and a fish tank there.

The Violation of the Rule in Browne v. Dunn

[164] At the close of the defence case, and having heard submissions from Crown and defence counsel, I ruled that there had been a violation of the rule in Browne v. Dunn.

[165] In his evidence, M.J. attributed certain statements which ought to have been put to A.O. during cross-examination. They included:

a) "Nobody can do this to me."

b) "I'll get even with you."

c) "It won't be no by-law officer."

d) "It will be the cops."

e) "I'll charge you with rape."

[166] In fairness to the Crown, I permitted A.O. to be recalled to allow her to give evidence about the statements attributed to her, and upon which she had not been cross-examined.

A.O.'s Evidence in Reply

[167] A.O. testified that when she went to confront M.J. at Aunt M.'s place, she thought she had a letter from the by-law officer in her hand.

[168] She could not recall word for word what she said to M.J.

[169] Essentially, she was questioning what right M.J. had to shoot her animals if they wandered onto his property, after he had snuck into her home and sexually assaulted her.

[170] A.O. believed that she should be able to shoot M.J. if he came and tried to rape her on her property again.

[171] She denied that she was ever going to falsely accuse M.J. of rape. That incident had already occurred.

[172] A.O. confirmed that she had already spoken to her counsellor about the sexual assault perpetrated on her by M.J. She believed that discussion occurred a couple of days or within a couple of weeks after the assault. A.O. ended up in emergency surgery with an injury to her breast. She believed this occurred in October 2014.

[173] A.O. could not recall the date she received the letter from the by-law officer. It was produced and shown to her by Crown counsel. It was dated June 4, 2015. At the request of the defence, it was made Exhibit 3 on the trial.

[174] Under cross-examination, A.O. recalled that M.W. brought the letter home from work some days following June 4, 2015. It had been received in the mail, and would have taken some time for delivery.

[175] A.O. then testified that she moved out of the residence she lived in with M.W. on Christmas Eve 2015.

[176] She placed the sexual assault as having occurred in September 2014. She confirmed she was very sure about the timing of it.

[177] A.O. began to waver and was not sure about whether the letter was given to M.W. by the by-law officer in town, or whether it was delivered in the mail to him.

[178] A.O. confirmed that at the time she confronted M.J. with the letter, G.G. was with her. She believed that M.W. jumped in his van and went in the other direction.

[179] A.O. did not have a recollection of M.W. being present at the time she confronted M.J.

[180] She denied that she mentioned the word, "police," during the confrontation. She then reconsidered and said she could not be sure.

[181] The gist of what she was saying was that she was not going to live in fear and be a prisoner in her own head.

[182] When challenged about whether she used the word "rape", A.O. would not confirm or deny that she had. She explained that she could not say word for word what she had said. She did make it known to M.J. and to the others present what he tried to do to her.

[183] When reminded that she had earlier testified that the sexual assault may have occurred in 2014 or 2015, A.O. explained that she has PTSD. Under stress, she has difficulty with remembering the order and sequence of events.

[184] A.O. then oscillated between whether she moved out of the residence she shared with M.W. in December 2015 or 2016.

[185] In re-examination, A.O. confirmed that she did not do anything to refresh her memory as to dates prior to testifying. She denied that she reviewed any documents with her counsellor in order to situate events.

A.O.'s Evidence On Being Recalled

[186] In light of A.O.'s confused evidence concerning dates and chronology, Crown counsel sought the opportunity to recall A.O. The Crown wished to put certain records to her to allow her to situate the occurrence of critical events.

[187] Defence counsel, of course, was permitted an opportunity to cross-examine further on any such evidence given by A.O.

[188] When presented with the records kept by her counsellor, A.O. recalled that she did review them in the past with Crown counsel. A.O. confirmed that Crown counsel and she vetted the records. Some portions were blacked out.

[189] Under cross-examination, A.O. agreed that some eight months or so had passed between the sexual assault she alleged and the receipt of the by-law officer's letter.

[190] The blacking out of her records was done to maintain her privacy.

[191] A.O. was referred to her previous testimony when she estimated that the time span between the sexual assault and the receipt of the by-law officer's letter was a month and a half or so. However, she stated that she was confused about when the letter was received. She repeated that under stress, she has difficulty with dates and chronology.

[192] Ultimately, A.O. agreed that if the assault occurred in September or October 2014, and she did not move out until Christmas Eve 2015, she remained in the residence she shared with M.W. for over a year following the incident she said occurred in the basement with M.J.

[193] A.O. confirmed that she previously testified she got an apartment as fast as she could after the decision was made with her counsellor, that she would take herself and her dog out of the woods.

[194] A.O. then denied that she ever suggested she moved out a month and a half, or even three months after the sexual assault occurred. It was not until two Christmases after the assault that she moved out.

[195] A.O. maintained that she clarified the timeline when she was permitted to use pen and paper to figure out the chronology while testifying earlier in the trial.

[196] As to the sequence of events, A.O. recalled that:

a) she was assaulted,

b) she almost died,

c) she needed emergency surgery,

d) she talked to her counsellor,

e) she contacted her lawyer's assistant,

f) she felt trapped in her house,

g) the letter from the by-law officer arrived, and

h) she moved that Christmas.

[197] A.O. confirmed that the letter, she knew, was received in the spring, which she considered to be April to June.

[198] She was then reminded of her earlier testimony, that the span between when M.W. came home with the letter and the incident with M.J. in the basement, was a month and a half or so.

[199] A.O. ventured that she may have misunderstood the question when she gave her evidence during her examination-in-chief, or she was confused about her timeline.

[200] A.O.'s attention was then drawn to how she testified on an earlier occasion that both occurrences, the assault and receipt of the letter, occurred in the fall of 2014, but she explained that she may have misheard the question put to her by Crown counsel during her examination-in-chief.

[201] Further, A.O. agreed that when she gave her evidence that her miniature horse, Kingy, was shot on March 25, 2015, that was incorrect. It must have occurred on March 25, 2016, a date upon which A.O. was no longer living with M.W. at her former residence.

[202] A.O. confirmed that earlier in her evidence she had agreed with the suggestion that the confrontation with M.J. occurred in the fall of 2015. She knew that was wrong. All along, she was aware that her confrontation with M.J. happened in the spring (April to June). She then testified that she did not specifically remember being asked to confirm that the confrontation with M.J. happened in the fall of 2015.

[203] In re-examination, A.O. was clear that the letter was received after M.J. sexually assaulted her. Equally, she was sure that she had spoken to her counsellor about the assault before the letter was received.

[204] She confronted M.J. almost immediately upon reading the letter.

[205] A.O. moved out after its receipt.

[206] The miniature horse, Kingy, was shot after she moved.

[207] In 2014, A.O. spoke to her counsellor about the incident with M.J. in the basement.

[208] The letter from the by-law officer was received in the spring of 2015.

[209] A.O. moved out Christmas Eve of 2015.

[210] Kingy was shot March 25, 2016.

[211] A.O. was diagnosed with posttraumatic stress disorder in 2017.

Issues

[212] This is a classic W.D. case. The issues raised thus are as follows:

a) if I believe the evidence of M.J., I must acquit,

b) if I do not believe the evidence of M.J., but I am left with a reasonable doubt about the offences with which he has been charged, I must acquit; and

c) even if I am not left in doubt by the evidence of M.J., am I convinced on the basis of the evidence I do accept in the guilt of M.J. beyond a reasonable doubt with respect to any of the offences with which he has been charged.

Do I Believe M.J.?

[213] I do believe M.J.'s evidence that the incident complained of by A.O. never actually occurred.

[214] M.J. gave a straightforward account of why he confronted A.O. about her loose animals. It made perfect sense. As a farmer, he would have concerns for his own livestock breaking out of their enclosure.

[215] I find that M.J. was truthful when he spoke of A.O.'s animals roaming onto his land as a pre-existing problem for some 6 to 12 months, before he decided to involve the by-law officer.

[216] M.J. had to resolve the issue once and for all. He testified with clarity and consistency about what he did to inform A.O. he had had enough.

[217] He remembered the significant details of what he told A.O. and the physical condition in which he found himself at the time (i.e. cut toes from a chainsaw accident).

[218] He recounted vividly his meeting with the by-law officer and what he was doing at the time of the officer's arrival at his farm.

[219] He was able to recollect the full gist of what A.O. said to him when she came to confront him at Aunt M.'s place.

[220] M.J. was unshaken in cross-examination.

[221] He did not deny that he may have spoken the words attributed to him by a most unreliable witness, M.W., who claimed to be present, when the other Crown witnesses, A.O. and G.G., said he was not, namely that his response to A.O.'s accusation of sexual assault was to label it a "he says, she says" scenario.

[222] Given M.J.'s criminal history, it may well have been something he glibly stated to M.W. at some point in the past concerning A.O.'s allegation, but I am not at all persuaded that M.W. was in fact in attendance when A.O. confronted M.J.

[223] For these reasons, I believe M.J.'s denial of having ever sexually touched A.O.

Does M.J.'s Evidence Raise a Reasonable Doubt?

[224] M.J.'s evidence goes further than raising a reasonable doubt. It dispels any veracity, in my view, to the allegations made against him by A.O., and by extension, the Crown.

Am I Satisfied of M.J.'s Guilt Beyond a Reasonable Doubt Based on the Evidence I do Accept?

[225] Even though I need not do so, having accepted the evidence of M.J. upon consideration of the totality of the admissible evidence, I shall articulate some of the reasons why I am prepared to go farther and reject A.O.'s evidence. While I acknowledge that she is not unique for her difficulty in recalling dates in general, her testimony was fraught with inconsistencies. I shall point to a few examples.

[226] Firstly, in her evidence-in-chief, A.O. said that the span of time between the basement incident and the receipt of the bylaw officer's letter was a month and a half or so. When she was permitted to use the letter to refresh her memory of the exact date the letter was written, as well as her counsellor's notes for the timing of when she first disclosed the incident to another, it became apparent that a period of 7 to 8 months had elapsed between these two critical occurrences (i.e. the basement incident of September or October 2014 and receipt of the letter in June 2015).

[227] A.O. testified she knew that it was wrong to have agreed with Crown counsel's suggestion that her confrontation of M.J. occurred in the fall of 2014, because she was sure that it occurred in the spring. Yet she made no effort to correct this error.

[228] Secondly, A.O.'s evidence with respect to when she moved out of the residence she once shared with M.W. was internally inconsistent. In her examination-in-chief, she testified she left the Christmas Eve following the incident, some 2 to 3 months after the alleged sexual assault in the basement of that home. Following discussions with her counsellor, she stated that she obtained an apartment as fast as she could, and got out of the woods. Later in her testimony, she conceded that in reality she must have left the shared residence on Christmas Eve of 2015, some 14 to 15 months following the alleged sexual touching incident involving M.J.

[229] Thirdly, A.O. gave evidence that she did not mention involving the police when she went to confront M.J. at Aunt M.'s place. Subsequently, her evidence changed to not being sure she brought up the issue of going to the police when she went to discuss the by-law officer's letter with M.J.

[230] Fourthly, A.O. denied at first that she reviewed any documents to refresh her memory with respect to dates while testifying. Later, she agreed that she did so with Crown counsel in order to look over her counsellor's records and black out portions thereof.

[231] Having listened to A.O. testify over the course of 2 to 3 days, I am more than confident I can describe her as having a deep love for and attachment to her animals. I cannot discount the very real possibility of a motive to fabricate on her part concerning what she says happened in the basement of her former home.

[232] A.O. herself conceded that the problems with her animals running loose on M.J.'s property pre-existed receipt of the by-law officer's letter in June 2015. A.O. knew as well that M.J. may sue her for any harm caused to his animals as a result of hers roaming onto his farm. This knowledge may well have been acquired before her disclosure of the basement incident to her counsellor. I cannot rule out that A.O. was seeking a form of insurance from a monetary claim, should M.J. commence a civil proceeding against M.W. and her for any damages caused by her stray pets. Her threat to go to the police would have acted as a powerful deterrent to M.J. to abandon pursuit of any compensation from A.O. or M.W. given his criminal record for sexual assault.

[233] Furthermore, A.O.'s claim to have been hospitalized and to have almost died as a result of being sexually assaulted by M.J. has a resounding ring of embellishment to it. The Crown tendered no medical records to confirm what must have been a significant injury to her breast. Those records ought to exist and ought to have been put before the Court, were they to confirm what A.O. said happened to her at the hands of M.J. That absence of corroborative evidence creates a worrisome doubt in my mind as to whether an injury of the nature described by A.O. was ever suffered by her.

[234] Last but not least, I can safely conclude that A.O.'s miniature horse, Kingy, was shot by M.W. after receipt of the by-law officer's letter. A.O. would know why M.W. would have felt compelled to put the horse down. She would have blamed M.J. as the cause for the demise of her beloved animal.

Conclusion

[235] Upon a fulsome review of the relevant, admissible evidence and the reasons given above, I must find M.J. not guilty on all charges.

Dated: October 29, 2019

March, M.G., J.

Endnotes

[1] Browne v. Dunn

THE COURT OF APPEAL, ENGLAND – LORD HERSCHELL, L.C.

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

[2] R. v. W.(D.), [1991] 1 SCR 742

A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.