WARNING

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

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

486.4 Order restricting publication — sexual offences.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

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

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

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

(2) Mandatory order on application.

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

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

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

486.6 Offence.

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

Court Information

Ontario Court of Justice

Date: March 5, 2020

Court File No.: Central East Region: Oshawa Courthouse 18-45566-00

Between:

Her Majesty the Queen

— AND —

C.G.

Before: Justice Peter C. West

Heard on: December 18, 19 and 20, 2019

Reasons for Judgment released on: March 5, 2020

Counsel:

Ms. D. Portolese — counsel for the Crown

Mr. S. Fraser — counsel for the accused C.G.

WEST J.:

Charges

[1] C.G. was charged with the following offences in respect of C.P.:

i) Sexual Assault, section 271 of the Criminal Code of Canada;

ii) Assault, contrary to section 266 of the Criminal Code of Canada;

iii) Forcible Confinement, contrary to section 279(2) of the Criminal Code of Canada; and

iv) Utter forged document, (Manulife Financial Home Line of Credit) between March 1 and March 31, 2018, contrary to section 368(1)(a) of the Criminal Code of Canada.

[2] The Crown elected to proceed summarily in respect of the four charges before the court.

[3] At the outset of the trial, Mr. Fraser advised that C.G. would plead guilty to the charge of utter forged document because he signed Ms. P.'s signature on the Manulife Financial Home Line of Credit and used this document as if it was genuine thereby committing the offence. Mr. G. was not prepared to admit however that he coerced or misled Ms. P. to get her to provide documents or to sign certain documents or that she signed documents as a result of any duress exerted by Mr. G. It was Mr. G.'s position Ms. P. was fully aware why he needed her to provide documentation to Manulife and she was aware he signed her name to the document and provided her consent. Mr. Fraser indicated the facts respecting the signing of this document would be presented in the evidence of the witnesses and whether Ms. P. signed under duress or coercion would have to be a finding by the court at the conclusion of the case. As a result no facts were provided after Mr. G. entered his plea of guilty, following the plea inquiry.

[4] The Crown called C.P. and C.G. testified on his own behalf. At the conclusion of the evidence the Crown requested the charge of forcible confinement be dismissed, as the evidence did not support proof of that charge beyond a reasonable doubt. At the conclusion of the evidence Mr. Fraser advised he wanted to provide submissions in writing. The court acceded to his request. Written submissions were received from both counsel.

Preliminary Legal Principles

[5] This was a relatively uncomplicated trial where the two parties gave diametrically opposed positions. C.P. described a single incident of assault involving Mr. G. grabbing her upper arm as she tried to walk around him, which caused a red mark to her upper right arm/bicep. This incident occurred on an evening in March 2018. In addition, Ms. P. described numerous incidents of sexual assault, which involved Mr. G. grabbing Ms. P.'s buttocks over her clothes, grabbing her breasts, both clothed and unclothed when she would getting ready to breast feed their daughter or when she finished and grabbing her vaginal area, over clothes. All of these incidents occurred between January 3, 2018 and June 16, 2018, culminating with one instance of unwanted sexual intercourse. It was Mr. G.'s testimony that he never grabbed her breasts. He denied any incidents of his "dry-humping" Ms. P. from behind. He admitted to kissing and hugging her and his hand would move to her buttocks but he testified she never told him to stop or complained about it. He denied grabbing her crotch area. It was Mr. G.'s evidence the one occasion they had sexual intercourse was consensual.

[6] As in any criminal case, Mr. G. is presumed innocent until proven guilty. The court has reminded itself that it need not firmly believe or disbelieve any witness and that it can accept all, some or none of a witness' testimony. The court has also reminded itself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[7] The onus remains on the Crown to prove C.G.'s guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. The court recognizes that the rule of reasonable doubt applies to the issue of credibility. Accordingly, the court must acquit the defendant if it accepts his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If the court rejects his evidence, or it does not leave the court with a reasonable doubt, the court must go on to ask whether the evidence that it does accept convinces it of the guilt of the defendant beyond a reasonable doubt.

[8] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.

[9] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[10] The court must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[11] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if the court has a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed.

[12] The court has also reminded itself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, the court has also reminded itself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

The Law Respecting Digital Evidence: Text Messages

[13] The defence and Crown took no issue with the introduction of the text messages sent between the complainant, Ms. P. and Mr. G. The issue of authentication of the digital evidence was not raised by the defence as an issue to be determined. It was accepted by both counsel that the electronic documents, the text messages, were what they purported to be (see section 31.1 of the Canada Evidence Act). Ms. P. identified the text message screen shots as coming from her cell phone.

Findings of Fact Respecting the Circumstances Under Which C.G. Uttered a Forged Document

[14] As indicated earlier in these reasons, C.G. at the outset of the trial pleaded guilty to the charge contrary to section 368(1)(a) of the Criminal Code of Canada. Mr. G. admitted he signed C.P.'s name on the application he made to Manulife Financial respecting a home line of credit in connection with the mortgage he had in respect of his property at Oshawa, Ontario. He also admitted he dealt with or acted upon Ms. P.'s signature as if it was genuine when he presented it to the Manulife Financial representative. However, it was his evidence that Ms. P. knew he was signing her name to the application and further that Ms. P. knew she was a co-applicant on the application to increase Mr. G.'s home line of credit and would potentially be responsible for any shortfalls should they occur.

[15] It was Ms. P.'s testimony that she was completely unaware of the real reason Mr. G. signed her signature on the original application or of the potential financial consequences that could flow from her being a co-applicant. It was her understanding, as explained to her by Mr. G., that Manulife Financial was requesting her financial information and for her to sign certain documents because she and Mr. G. were living in a common law relationship and they had a newborn daughter together. In cross-examination Mr. G. conceded there was no urgency for the documents to be signed and he could have brought them with him when he joined Ms. P. and their daughter in Florida.

[16] Ms. P. provided Mr. G. with a letter from her employer, some of her pay stubs and her CRA Notice of Assessment from her 2016 tax return because Mr. G. told her Manulife needed to see these documents because she was residing in the house. It was her evidence she was never shown any documentation until the summer of 2018, after she and Mr. G. were separated. Manulife Financial only provided her with documentation concerning her being a co-applicant because of the police involvement in August-September 2018. Her name was not removed by Manulife from the documentation respecting the home line of credit, as a co-applicant, until she got a lawyer involved, which was at the beginning of 2019.

[17] It is the court's view based on the totality of the evidence on this issue that Mr. G. clearly kept Ms. P. in the dark as to the potential financial consequences of her being a co-applicant. The original application form was provided to Manulife according to Exhibit 4 on April 13, 2018. It has Ms. P.'s signature on a photograph of the signatory page, which is dated in April 2018. This was the documentation provided to Ms. P. in the summer of 2018 by Manulife, after she had gone to the police. On the totality of the evidence the court finds that C.G. did everything he could to make sure Ms. P. did not read the documentation.

[18] In Exhibit 4 there is reference to the fact C.P. was a co-applicant (p. 2 of 5) yet at a later point in the document (p. 4 of 5) the application indicated in a note:

"C.G. will receive a separate copy of disclosure documents. C.P. has requested not to receive a separate copy of disclosure documents."

Just above this note the application indicated the following:

Cost of Borrowing – Separate Disclosure Documents

As a co-applicant, you have the right to receive a separate copy of disclosure documents. Please be advised that you will automatically receive a separate copy of disclosure documents unless you have indicated otherwise. Disclosure documents will be sent to all borrowers at the address(es) provided in this application. This may include statements, renewal agreements, documents outlining the terms and conditions of the product and any other documentation that shows the cost of borrowing. The consent will carry through renewals or amendments, if applicable….

In the court's view this note is significant as this is the document Mr. G. signed Ms. P.'s signature on, as Ms. P. was vacationing with their daughter in Florida. The court finds this note demonstrates that C.G. told Manulife that Ms. P. did not wish to receive a copy of the application. This was the document in which he signed her name when she was in Florida. Mr. G. only sent her the signature page showing how he signed her name in a text, Exhibit 2. There is no date on these texts messages from Mr. G. to Ms. P. Ms. P. believed Mr. G. texted her Exhibit 2 in April 2018 when she was in Florida. Mr. G. agreed with this in his evidence. There is the date of March 15, 2018, above the signature of Mr. G. and the purported signature of Ms. P., however, what this date referred to was not explained.

[19] An interesting text from Mr. G. to Ms. P., which is part of Exhibit 2, is a question asked of Ms. P. by Mr. G.: "What's you're (sic) occupation"? A further document relating to the home line of credit is Exhibit 10, which, according to Mr. G., was prepared by him and Ms. P. in preparation for a representative of Manulife attending their house in April 2018, after they returned from Florida (Mr. G. joined Ms. P. and his daughter after he signed her name on the Manulife application) for documentation to be signed. Ms. P. testified none of the writing or printing in this document was done by her. It was suggested by Mr. Fraser that all of the information pertaining to Ms. P. was written or printed by her in preparation for this meeting. Ms. P. denied this and pointed to the fact that the length of time noted in Exhibit 4 that she was in her current job position (+10 years) was incorrect, as she had not been with her current job for 10 years, which was written under the company name and her position. In the court's view it is also significant that this part of the application lists Ms. P.'s occupation as a "sales representative," which would have been the information Mr. G. was looking for when he signed Ms. P.'s name on the application for the increase in his home line of credit.

[20] Further, Exhibit 10 does not contain any signatures of Mr. G. or Ms. P. and only provides financial and employment information about each of them. The document is also missing the first page and the fax header has a date of 01/13/2015, which does not make sense given this documentation was being prepared in 2018. Exhibit 10 was presented by the defence to Ms. P. in cross-examination and it was suggested to her to be the information she provided to the Manulife representative, who Mr. Fraser suggested was Robin Royer, although this did not refresh Ms. P.'s memory and she denied writing any of the information. Mr. G. was shown what ultimately became Exhibit 10 (It was originally marked as Exhibit A, as Ms. P. said she had never seen the document and did not fill out anything on the document.) by Mr. Fraser, who asked him if Ms. P. had anything to do with this document. Initially Mr. G. testified Ms. P. had nothing to do with this document. However, when he was directed to p. 005 he testified this page was filled out by Ms. P. in the kitchen counter but he later testified she may have not filled it out in his presence. He testified he recognized her handwriting/printing. At a later point in his evidence in-chief he told Mr. Fraser that C.P. also filled out the information on p. 004 of Exhibit 10. This document also has the fax header at the top of each page, which indicates a date in January 2015 and the fax cover sheet is missing. As a result, the court is unable to determine, on the evidence before it, whether this document was the document presented to the Manulife representative in April 2018, as part of the "final process," as suggested by Mr. Fraser, or whether this was a document prepared by Mr. G. and sent by him in a fax to Manulife.

[21] It is the court's view Mr. G. was particularly evasive when he testified in cross-examination on the issue of exactly why Ms. P. needed to sign the Manulife documents and provide her personal and financial information. He continually referred to her as being a guarantor and not a co-applicant but when he was confronted with the Manulife documents that clearly indicated Ms. P. was a co-applicant he said that Manulife told him she was a guarantor. The court finds Mr. G. did not want Ms. P. to see or read the Manulife documentation, which is evident from Exhibit 4, noted above and from the July text exchange discussed below. There was no need for Mr. G. to sign Ms. P.'s name on Exhibit 4 as he conceded in cross, he could have brought the Manulife documentation when he joined her in Florida, where she could have read what she was affixing her signature to. There was no urgency or rush in getting the document signed.

[22] Mr. G. admitted he had signed Ms. P.'s name on the Manulife application and the court is also satisfied beyond a reasonable doubt that he kept Ms. P. in the dark as to the potential financial obligations and risk this put her in. The court does not accept any of the evidence given by Mr. G. on this issue because of the text message exchange between Mr. G. and Ms. P. in July 2018, Exhibit 3, after Ms. P. had separated from Mr. G. The court has no doubt Ms. P. had no idea as to any of the financial implications to her because of Mr. G.'s application to Manulife Financial, where he forged her signature and presented it as being genuine. In Exhibit 3 Ms. P. was requesting a copy of the documentation that Mr. G. had signed. Throughout the text exchange Mr. G. maintained her signature was on the documents only because she was living at the house. He told her to get her lawyer to request the documentation from Manulife as he would not provide it to her. He did tell Ms. P. that her name was not on the deed to his house, which was true. Mr. G. maintained in his texts to Ms. P., "My mortgage has nothing to do with you", "Manulife will tell you the same thing." When she texted, "Okay I don't want Manulife to have me on the line any longer," Mr. G. responded, "You're not on it!!!! How many times do I have to explain that," but this was completely untrue.

[23] The court views Mr. G.'s texts as admissions by him respecting the Manulife documents. In terms of Ms. P.'s texts, they are not being considered for their truth as her texts are prior consistent statements. In R. v. Nwoko, [2019] O.J. No. 2020, at para. 24, Schreck J. held:

24 Prior consistent statements of a witness are presumptively inadmissible: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. However, this rule is subject to a number of exceptions. The recognized exceptions that potentially arise in this case are the following:

(1) Prior consistent statements as circumstantial evidence;

(2) Recent fabrication;

(3) Prior consistent admissible hearsay;

(4) Prior consistent statements that provide context for admissible statements;

(5) Pure narrative;

(6) Narrative as circumstantial evidence.

See D.M. Paciocco, "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181, at p. 182.

[24] Ms. P.'s texts in July 2018, when she and Mr. G. are separated and she is requesting he provide the Manulife documents she had signed, provide a compelling narrative and context to the testimony she gave in court that she had no idea what she had signed or its implications. Further, Mr. G.'s responses corroborate her testimony that Mr. G. had told her she only had to sign the Manulife documents because she was living in the house. She was not on his mortgage, his mortgage had nothing to do with her and Manulife would tell her the same thing. Of course, this was not true as the documents disclose Ms. P. was at risk, if Mr. G. defaulted on his payments, and Manulife could look to her for reimbursement.

[25] Consequently, the court finds the aggravating circumstance alleged by the Crown respecting this charge has been proven beyond a reasonable doubt and will be considered in determining an appropriate and fit proportionate sentence.

The Charge of Assault

[26] Mr. G. was also charged with assaulting Ms. P. in March 2018 when Mr. G. returned from a music concert. According to Ms. P., he was angry and upset with her because of an argument they had before he left to go to the concert. Ms. P. had initially agreed to go to the concert and then decided she was not comfortable with leaving their daughter for such a long period of time. As a result Mr. G. asked a friend of his to go with him. Ms. P. changed her mind and said she would go to the concert and she got upset when she learned Mr. G. had already found someone else to go with. She conceded in cross-examination she had hidden the tickets for 30 minutes and then gave them back to Mr. G. This caused an argument, which continued throughout the night in texts between the two of them. When Mr. G. returned home around 2 a.m. he went into the master bedroom, where Ms. P. was with their daughter and turned on the light. This led to the two of them arguing in the bedroom.

[27] Mr. G. and Ms. P. have slightly different versions of what occurred after this argument started. Mr. G. testified he left the bedroom, walking past Ms. P. and he did not touch her in any way. Ms. P. initially said when Mr. G. came into the bedroom, she was already awake and was standing up out of bed to saying he could have awakened her by turning on the light and they started to argue. She conceded it was possible she was standing because she had more to say to him and was still angry about him not taking her to the concert. She conceded she was still angry with Mr. G. when he came home. Ms. P. testified she started to walk around Mr. G. to leave the bedroom and he grabbed her upper arm with one of his hands a prevented her from leaving. Ms. P. demonstrated how her upper arm was grabbed and she reached with her right hand and grabbed her left upper arm.

[28] A photograph was introduced, which was dated on May 30th and showed a slight red mark to Ms. P.'s upper right arm. The concert was agreed to have taken place on March 13, 2018. Ms. P.'s explanation for the date on the photograph was she was not very good with technological things as she had deleted the photograph from her phone but it was still on her computer from the iCloud and she copied it at some point to her phone to provide to the police. When the court asked Ms. P. why she grabbed her left upper arm when she demonstrated how Mr. G. grabbed her arm, she said she made a mistake and she is right-handed. The issue of the date on the photograph was attempted to be addressed through investigation by Crown and defence and the matter was adjourned to January 8, 2020 to be spoken to. No further evidence was led concerning this issue, as counsel advised their investigation had not resulted in any explanation for the May 30th date being on the photograph. As a result the court is left with uncertainty as to whether Exhibit 1, the photograph of the slight redness on Ms. P.'s right upper arm was caused between March 1 and March 31, 2018 or some other incident.

[29] It is the court's view that although it might be suspicious an incident described by Ms. P. could have occurred, the court is not satisfied beyond a reasonable doubt as to Mr. G.'s guilt on the charge of assault. Consequently, this charge will be dismissed.

The Law Respecting Sexual Assault

[30] The elements of the offences charged are not disputed by counsel and therefore, the court intends to only briefly address the essential elements of the two offences charged.

[31] Sexual assault requires the Crown to prove the following essential elements beyond a reasonable doubt:

i) That the defendant intentionally applied force;

ii) the complainant did not consent to the force that the defendant intentionally applied;

iii) that the defendant knew that the complainant did not consent to the force that he intentionally applied; and

iv) that the force that the defendant intentionally applied took place in circumstances of a sexual nature.

[32] The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature, the fact that sexual assault is a general intent offence, and the requisite elements of the offence: R. v. Chase, [1987] 2 S.C.R. 293, at para. 11 [Chase]; R. v. Jarvis, 2019 SCC 10, [2019] S.C.J. No. 10, at paras. 50, 124-125; R. v. Ewanchuk, [1999] S.C.J. No 10. The test outlined in Chase is still the focus in most sexual assault trials:

…The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. [Citations omitted.]

[33] Section 273.1 of the Criminal Code provides:

(1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purpose of sections 271, 272 and 273, where

a) The agreement is expressed by words or conduct of a person other than the complainant;

b) The complainant is incapable of consenting to the activity;

c) The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

d) The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

e) The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained.

[34] The honest but mistaken belief in communicated consent is found in section 273.2 of the Criminal Code, which provides:

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

• (a) the accused's belief arose from

o (i) the accused's self-induced intoxication,

o (ii) the accused's recklessness or wilful blindness, or

• (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

• 1992, c. 38, s. 1

[35] This section was amended on December 13, 2018, which is after the offence dates alleged in this case. In the court's view those amendments would only apply to offences committed after the date of the amendments being assented to and therefore do not apply to this case.

[36] Recently in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at paras. 121-122, the Supreme Court has set out the requirements respecting a defence of honest but mistake of communicated consent pursuant to section 273.2(b):

121 An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to the defence. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent. This Court recently confirmed that where there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent, the defence of honest but mistaken belief in communicated consent must not be left with the jury (see R. v. Gagnon, 2018 SCC 41). A number of provincial appellate decisions, including the Court of Appeal's decision in this case, have reached the same conclusion (see e.g., Cornejo, at para. 19; R. v. Despins, 2007 SKCA 119, 228 C.C.C. (3d) 475, at paras. 6 and 11-12; R. v. Dippel, 2011 ABCA 129, 281 C.C.C. (3d) 33, at paras. 22-23 and 28; R. v. Flaviano, 2013 ABCA 219, 368 D.L.R. (4th) 393, at paras. 41 and 50, aff'd 2014 SCC 14, [2014] 1 S.C.R. 270; C.A. reasons (2017), at para. 250).

122 Accordingly, if there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent, then the defence of honest but mistaken belief in communicated consent has no air of reality and must not be left with the jury. This threshold analysis serves an important purpose: it keeps from the jury defences that lack a sufficient evidentiary foundation, thereby avoiding the risk that the jury might improperly give effect to a defective defence. As such, contrary to what occurred at trial in this case, 8 the air of reality test should not be ignored.

Analysis

[37] As indicated at the beginning of these reasons this is a case involving a consideration of the principles espoused in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) given Ms. P.'s and Mr. G.'s versions of the sexual relations between them are diametrically opposed. Therefore, if the court accepts the evidence of C.G., it must acquit him. Even if the court does not accept his evidence the court must go on to consider whether his evidence raises a reasonable doubt after considering it in the context of the evidence as a whole. If so, the court must acquit him of the charge of sexual assault. If the court rejects his evidence, or it does not leave the court with a reasonable doubt, the court must go on to ask whether the evidence that the court does accept convinces it of his guilt beyond a reasonable doubt.

Complainant's Evidence Regarding Sexual Assault

[38] Ms. P. described how the birth of her daughter in January 2018 was induced, her daughter was born by the doctor using forceps and the doctor had to cut her because at one point her daughter was not breathing and they had to get her out quickly. She testified this resulted in her having stitches from her vagina back to her anus, which was very painful. The stitches actually dissolved after two weeks or so but the pain lasted for months. Ms. P. described how after the baby was born she was in a lot of pain "down below" and she was not interested in having sex with Mr. G. and she told him this. They were very happy about their daughter's birth but things began to change after the baby was born. She was breast-feeding and she described her "boobs" being engorged, red and very sore. As a result of breast-feeding her daughter every two to three hours she described her breasts being exposed repeatedly and Mr. G. would see this and would grab them with his hands. This caused her pain and she told Mr. G. to stop but he kept doing it. Ms. P. said he did not care if she was in pain and he would laugh and say to her: "I'm just kidding." She described it got to the point he told her it was his right to do this to her. She would tell him she did not feel comfortable with him touching her breasts and that she needed her space, she was sore and in pain. He would look at her and say, "We're in a relationship and it was his right." When he would try to grab her breast she would push his hand away and tell him, "No, I don't want you to do that."

[39] On a couple of occasions he would come up behind her and grab her vagina, over her clothes or he would "dry hump" her. She was in a lot of pain and told him to stop because it hurt and she was sore. She was also upset with him because he often did these things in front of their daughter. She described how Mr. G.'s behaviour got to the point all she could do was say "No." She never asked him to touch her in the ways he did.

[40] Mr. G. denied grabbing Ms. P.'s breasts after their daughter was born and denied grabbing her from behind and "dry humping" her as Ms. P. alleged in her evidence. He testified the only sexual things he ever did to Ms. P. after their daughter was born was to try and show his affection for her by hugging and kissing her on occasion and sometimes he would lower his hands to her butt and touch it. He testified Ms. P. did not object to this show of affection. Ms. P. disagreed with the suggestion this was all Mr. G. did of a sexual nature to her after the birth of her daughter. She did agree there were times she would hug Mr. G. back when he hugged her but she hoped the hug would not last very long and that he would stop touching her. She testified there were numerous occasions when his touching was very different from a hug and she did not appreciate it.

[41] Ms. P. testified Mr. G. started to tell her, about two weeks after the birth, that he needed sex, he was dying. On a scale of 1-10 she described her pain from the birth as being at a level of seven or eight. If he grabbed her vagina her pain level went up to a nine. When he was pushing his penis against her bum when he would "dry hump" her from behind she would turn around and push him away and tell him she needed time to herself. When she would tell him no, Mr. G. would tell her they could do something else sexual. She would tell him she was not ready and try to explain the pain she was feeling. Ms. P. felt that all Mr. G. wanted from her was for her to care for their daughter and when she was not doing that she had to please him sexually and she told him she was not willing to do that. Ms. P. could not recall exactly when Mr. G. on two occasions tried to "dry hump" her. The first time was February or March when she was doing the dishes and the second incident was May or June when she was in a closet getting some clothes.

[42] Ms. P. said Mr. G. kept telling her he needed sex and any other man would have cheated on his wife by this point. She went to see her gynecologist around six weeks after her daughter was born.

[43] On the day Mr. G. had intercourse with her she remembered him asking for sex and pestering her and she described feeling she had no choice but to go up to the bedroom with her daughter, who she put into the bassinet. She did not recall how her clothes came off, if she took them off or if Mr. G. did. She lay on the bed and he got on top of her. She remembered telling him she did not feel comfortable because their daughter was right there in the room. She did not want to do it but she felt she had no choice. If she did not go through with it, he would continue to push and he was not going to stop. He had removed his clothing except his shirt and boxers. She testified she felt numb. She remembered him putting his penis inside her vagina and saying, "No, it hurts. I'm in pain," and he said, "It won't take me long." She had this overwhelming feeling she just had to go along with it but she kept saying, "No, I'm in pain," but he just continued until he ejaculated and then walked away like it was nothing.

[44] Ms. P. testified she told him to stop immediately after he put his penis in because it caused her pain. She did not remember how many times she told him to stop but it was more than once. In cross-examination she did not agree she willingly participated in the intercourse for most of it until it became very uncomfortable for her and she told him to stop. She testified in cross-examination that Mr. G. physically forced himself inside her, she did not do anything to assist him by spreading her legs or lifting her legs up. She maintained in cross-examination that she told him "This hurts" or, "Ow, you're hurting me" at the time the intercourse started. As soon as the intercourse started she told him to stop because it hurt, she was in pain, she told him this on more than one occasion.

[45] Mr. Fraser suggested to Ms. P. that in her police statement she never said she told Mr. G. "It hurt, it hurt" and she responded she did tell the officer, "No, I'm in pain." Mr. Fraser then produced two portions of transcript from Ms. P.'s police statement where she did not use the phrase, "It hurt, it hurt," however, in these two portions of transcript she did tell the officer she told Mr. G. to stop because it was painful for her, which in the court's view is essentially the same and there is no inconsistency or contradiction between her testimony and her statement. Ms. P. testified Mr. G.'s response was "It will be quick, I need this." The officer asked her if she told Mr. G. that it was painful while he was doing it and she answered in the affirmative, as seen in the video, Exhibit 8. At a later point she told the officer after she told Mr. G. it was painful he said to give him "like one more minute kind of thing" and then he ejaculated.

[46] Ms. P. did not agree with the suggestion Mr. G. stopped "pretty much right when she said stop" by indicating he was done anyway. She did not agree with the suggestion she never told Mr. G. to stop having intercourse with her. She agreed Mr. G. did ask her after he was finished if it hurt her but this was not the first time she communicated that it was hurting her. She could not recall if Mr. G. asked her prior or during the time he had intercourse with her. She kept saying to him that it was hurting. She agreed in her statement she did not tell the officer she told Mr. G. to stop multiple times. She testified she had a really hard time talking to this male police officer she had just met for the first time about what happened with Mr. G. Ms. P. did not agree with Mr. Fraser that Mr. G. asked if he could have one more minute she told him "Okay, but hurry up." Ms. P. testified she felt she did not have a choice when Mr. G. asked for one more minute, as he was on top of her. She did not try to push him off. Ms. P. described Mr. G. as harassing her frequently to have sex with him after their daughter was born.

Motive to Fabricate

[47] Mr. Fraser cross-examined Ms. P. on a series of texts in July 2018 between Ms. P. and Mr. G., when they were separated, where Mr. G. told her that he was going to get a lawyer and was going to let a judge decide on the issues of custody. She responded to this text with: "Yeah, $200,000 later we will have a discussion." It was suggested to her that she was not eager for Mr. G. to get a lawyer but Ms. P. indicated this was incorrect. She wanted Mr. G. to get a collaborative lawyer, where they could go for counselling and mediation but Mr. G. was not interested in doing that. The court does not see the texts put to Ms. P. by Mr. Fraser as establishing she had a motive to lie about his sexually assaulting her. The text exchange was over Ms. P. giving only limited access to Mr. G. of their daughter and his expressing if he did not get more access he was going to have to hire a lawyer.

[48] It was Ms. P.'s evidence that after they separated Mr. G. threatened he would take their daughter away from Ms. P. by kidnapping her. Ms. P. volunteered in cross-examination that he told her that he was going to tell the police she had assaulted him and he had a picture to prove it, which was untrue. She did not go to the police to get there before Mr. G., in fact, she told the police in her statement Mr. G. had made this allegation to her. He also told her he was going to apply to family court to try to get custody of their daughter but she testified she was sure that was not likely to happen. It was the court's view from observing and listening to Ms. P.'s evidence that there was no basis or foundation to the defence allegation that she had a motive to lie and fabricate false allegations against Mr. G. As will be discussed later, it is the court's view the text messages in Exhibits 5, 6 and 7 also demonstrate why there is no basis for Mr. Fraser's submission.

Accused's Evidence Regarding Sexual Assault

[49] It was Mr. G.'s evidence he knew that it was going to be at least six weeks before he would be able to have sexual intercourse with Ms. P. He testified he was present for the delivery and saw how Ms. P. was "ripped" and he understood she "would be tender in that area." He testified Ms. P. told her the doctor medically cleared her but he was not present when this occurred. Mr. G. testified Ms. P. told him she was still a little sore and tender, so Mr. G. said he waited another three to four weeks after she was medically cleared. He testified he "maybe raised that question again, if she was okay, if everything was fine, if we can possibly do something with each other." Mr. G. testified he maybe asked Ms. P. about having sexual intercourse from the time their daughter was born until when it happened, "three times,… maybe four times." He denied harassing her to do things of a sexual nature. It is the court's view the three portions of text message exchanges between Ms. P. and Mr. G. demonstrate the falsity of Mr. G.'s evidence respecting his desire to commence sexual relations with Ms. P. The court will discuss the text messages in greater detail later.

[50] On the day they had sexual intercourse Mr. G. testified he "may have asked C. if – if she was feeling like maybe she – like, we wanted to do something together. Ms. P. indicated that we would be – we would try it out to see, I guess, how it would feel, because this would have been the first time – the first time Ms. P. and I would be having intercourse after [their daughter] was born." According to Mr. G.'s testimony in-chief, Ms. P. did not express any apprehension or reluctance about the prospect of having sexual intercourse. In the court's view these two statements are inconsistent with each other as the first comment by Mr. G. clearly indicated Ms. P. was apprehensive and concerned about whether she would experience pain during intercourse. The court will address this in more detail later in these reasons.

[51] Mr. G. testified he did not remember 100 percent what time of day it was, possibly on a weekend and probably in the middle of the afternoon in their bedroom, as the time when they had sexual intercourse. According to Mr. G., they discussed it and Ms. P. was in agreement to "try to have intercourse." Again, Mr. G.'s evidence is internally inconsistent.

[52] Mr. G. described Ms. P. walking upstairs in front of him, she was holding their daughter and he followed them into the bedroom. He testified in-chief, "She looked fine. She was in agreement." They went into the bedroom, she put their daughter in the bassinet and began to take off her clothes, according to Mr. G. The bassinet was close to the bed. He had not threaten her or apply any duress on her to get her to go into the bedroom. She lay on the bed and he got on top of her, "missionary position." She did not attempt to push him away. He did not recall if she said anything to him as to what they were about to do. This is inconsistent with his evidence in cross-examination.

[53] When he first started intercourse he testified Ms. P.'s reaction was "she was not sure how it was going to feel." According to Mr. G., Ms. P. said to him, "Just go gentle. Go easy," because, according to Mr. G., she did not "know how – if any pain would have occurred during intercourse." This comment attributed to Ms. P. by Mr. G. was not put to her in cross-examination by Mr. Fraser, which should have been done pursuant to Browne and Dunn. This was not raised by the Crown at the time, however, it would of assistance to know what Ms. P.'s evidence was as to whether this was something she said before the intercourse commenced. Mr. G.'s testified as a result of what Ms. P. said to him before he commenced intercourse he was "gingerly and cautiously entering her, to – to ensure she was not going to be in any deal (sic) of pain." She did not say anything to him to get him to stop. The intercourse ended when Mr. G. ejaculated. She never told him it hurt during the time he was having intercourse with her. Mr. G. did not provide any evidence respecting the suggestions Mr. Fraser put to Ms. P. concerning her participating until just before Mr. G. finished before saying for him to stop or that Mr. G. asked if he could have one more minute and she told him "Okay, but hurry up."

[54] In response to Mr. Fraser asking him, after he was finished, whether Ms. P. said it was unpleasant or perhaps a painful experience, Mr. G. said, "I – I don't recall her saying anything that it was – it was painful. Yeah, I don't – I don't – like, let me think, yeah, I don't – recall her saying anything that it was – it was painful for her or anything like that." He then testified he believed he "asked her how she felt or just how she was feeling, because it was obviously her first time having intercourse after [their daughter] was born" but he did not provide any response by Ms. P. in his testimony. In the court's view Mr. G.'s evidence of not recalling anything said by Ms. P. or him asking her how she felt after he finished having intercourse with her does not accord with common sense and logic given her repeated expressed concerns about intercourse being painful or hurting her from the time of her daughter's birth until he had intercourse with her for the first time. It was Mr. G.'s evidence that after intercourse was done he just recalled getting dressed and maybe he picked up their daughter and took her downstairs but he really did not recall even doing that. Further, this lack of memory on his part does not ring true having regard to Mr. G.'s comments and responses in the text messages.

Text Message Evidence

[55] Despite there being no date stamp on the text exchange in Exhibit 6, it is the court's view these texts are clearly written and sent between Mr. G. and Ms. P. before the occasion Ms. P. and Mr. G. engaged in sexual intercourse sometime seven to ten weeks after their daughter was born. Mr. G.'s comments at the outset of the texts, "Can we please have some sex soon," "I'm dying," and "Ive (sic) never had to ask ever lol," were not indicative of joking in the court's view despite the "lol" addition at the end of the third comment. Ms. P.'s "Lol" in the court's view was sarcastic. Mr. G. in his cross-examination attempted to explain away these and other comments as his sense of humour or him joking with Ms. P.; however, when the Crown put to him a later comment that this was "Longest [he] had never not had sex" and that "[she] was being selfish," Mr. G. said he did not recall those texts – they may have had a conversation like that – but he did not know when those texts were sent. This is another example of Mr. G. being evasive as he had Exhibit 6 in front of him and the comment about it being the "Longest [he] had never not had sex" was at the bottom of the first page.

[56] On the second page of Exhibit 6 the texts read as follows:

Ms. P.: I have enough going on with taking care of [their daughter] and myself

Mr. G.: I have nothing going on

Mr. G.: We need it

Ms. P.: I don't need to go, I don't need sex

Ms. P.: You need it

Mr. G.: So you needed it before but now you don't

Mr. G.: You contradict yourself always

Ms. P.: I do not need sex

[57] These text exchanges, coupled with the earlier texts referenced above, clearly demonstrate in the court's view Mr. G.'s predilection and desire for sex because he has not had any sex, he has never had to ask for it before, this is the longest he has ever not had sex and he has nothing going on. These sentiments are completely inconsistent with his evidence in-chief and in the court's view detrimentally affect his credibility.

[58] Ms. P. testified the text exchange in Exhibit 5 occurred after Mr. G. had sexual intercourse with her and caused her pain:

Mr. G.: Well I'll say what you say to me….

Ms. P.: It's been 7 weeks, I've had stitches and given birth with large metal tongs being placed up my vagina. I have tearing and it hurts.

Mr. G.: Again….we can do other things

Ms. P.: I'm not going to have sex in pain

Mr. G.: But you are selfish and say I don't get anything

Ms. P.: You say that then you shove your penis up there and I sit in pain

Ms. P.: Well I don't get anything

Mr. G.: Well as you say we all make sacrifices

Ms. P.: I get to be in pain

Mr. G.: You could give me head but you don't care

Ms. P.: Well I made a huge sacrifice to my body by having a baby

Mr. G.: I made a huge one too

Mr. G.: Bc you don't try

[59] The comments and responses by Mr. G. in Exhibit 5 are completely inconsistent with his testimony and reflect someone who views sexual relations with his partner as his right – something he expects to happen when he requests it. Even if these texts were sent before the intercourse occurred as submitted by the defence, in the court's view these texts were admissions by Mr. G., which are entirely consistent with Ms. P.'s evidence in court of Mr. G. demanding sex from her on a frequent basis. His comments when Ms. P. told him about how she hurts and is in pain and is not prepared to engage in sexual relations "in pain," Mr. G.'s response, "Again…we can do other things." When these comments were put to Mr. G. in cross-examination he said, "This – well, this is a conversation between C. and I. And, if you – well, I – I – yes, I – I said things like this. And, again, I say things in a lot of – a joking manner. If you look at the second page…" In the court's view, given the context of the conversation, Mr. G. was being evasive and not answering the question put to him that "Not giving into his desire [Ms. P.] was being selfish." He never answered that question. Further, Mr. G. said in-chief he was not harassing Ms. P. to have intercourse and sex, which is completely inconsistent with his evidence in cross and his text messages.

[60] The Crown pressed Mr. G. and alleged, "It was unfathomable to him that Ms. P. would not have sex with him" and this bothered him. He responded, "I – well – it didn't bother me per se like if – Ms. P. didn't want to have sex, I'm – I'm going to ask to see if she's ready or if she's willing, but I believe Ms. P. and I only had intercourse after [their daughter] was born twice." (The defence did not bring a section 276 application during this trial and as a result the court is not considering Mr. G.'s comment. This was not put to Ms. P. by the defence because an application was not brought.) His answers in cross-examination are contrary to his earlier evidence in-chief that he did not frequently ask Ms. P. for sex. In the court's view these texts put a lie to his evidence in-chief evidence.

[61] The Crown questioned Mr. G. on his evidence in-chief that he waited three to four weeks after Ms. P. was medically cleared before he even asked for sex, to which Mr. G. said he believed they possibly could have had intercourse was another month after she was medically cleared because she said she was still in pain. The Crown then asked why Mr. G. told the court in-chief he was certain he never even asked Ms. P. for intercourse until three or four weeks after she was medically cleared. In the court's view Mr. G.'s response to the Crown's question was very telling: "Well, I – I can't remember every conversation that I had with Ms. P. I may have asked her a couple of weeks after, two or three weeks, I'm not 100 percent sure or that could have been the time when we actually had intercourse." When Mr. G. was pressed on his answer in-chief being inaccurate, in the court's view this was a further example of where he was evasive and attempting to deflect.

[62] The Crown finally put to Mr. G. that he was demanding sex from Ms. P. even before Ms. P. was medically cleared and would not take no for an answer. He testified he was not demanding anything. It is the court's view Mr. G.'s comments and responses in the texts in Exhibits 5 and 6 clearly demonstrate that Mr. G. was demanding sex from her. He told her she was being selfish when she told him she was still in pain from the birth of their child. He told her they could "do other things." When she told him he shoves his penis up there and she is in pain he told her, "well, as you say we all make sacrifices." In the court's view these texts by Mr. G. provided corroboration that Ms. P. experienced pain during the intercourse and provided evidence from which an inference could be drawn that Mr. G. did not care if it caused her pain or not. Ms. P. then told him about her sacrificing her body to give birth to their daughter and Mr. G. responded, "I made a huge one too." The final comment by Mr. G. in a text, "You could give me head but you don't care," is in conflict with his testimony where he said he was referring to doing sexual things together, when it is clear in the texts he was referring to Ms. P. doing sexual things to satisfy his sexual needs. In the court's view it is the comments and responses by Mr. G. in his texts, which provide corroboration of Ms. P.'s testimony. The inconsistencies between Mr. G.'s testimony and what is contained in his text messages detrimentally and adversely affect his credibility and reliability.

[63] Exhibit 7 were a series of texts introduced by the Crown (sent around and on July 11, 2018 when Ms. P. and Mr. G. were separated). The Exhibit 7 texts are as follows:

Mr. G.: We haven't had one C. and that's all bc of you

Ms. P.: Oh, blame me, that's fine.

Mr. G.: C. we don't have one

Mr. G.: I can't even touch you!!!! That's not on me

Ms. P.: You mean you can't grab my boobs and ass whenever you want….yeah that's right, you can't do that.

Mr. G.: No C.

Ms. P.: Yes C.G. That's what you do. In front of [our daughter] too

Mr. G.: No C.

Mr. G.: I grab your bum bc it's the only way I can show affection bc we do nothing else

Ms. P.: Deny it all you want but it happens and I've said many times "no" and you continue to do it and say you're allowed as if you have the right to grab me

Mr. G.: I won't touch you anymore

Ms. P.: Oh well there's a reason I don't

2018-07-11, 10:34 AM

Mr. G.: I don't care C.

Mr. G.: I've been dealing with it for a year and a half

Mr. G.: It's a very nice feeling to feel everyday

Ms. P.: More of a reason to be separated then if you've been feeling that way for a year and a half. It's not like we were officially together and planned this C.G. so I don't know why you are so surprised by this

Mr. G.: The feeling is you never wanted to even be with me or care C.!!!!

Ms. P.: Okay that's your feeling. If I didn't then I wouldn't have moved in

[64] In this text exchange Mr. G. was saying to Ms. P. that they did not have a sexual relationship for a year and a half, which would be from the time shortly after she became pregnant. It was his position this was solely because of her. Mr. G. complained he could not even touch Ms. P. He denied her allegation concerning his grabbing her "boobs and ass whenever he wants," although in his testimony he admitted he grabbed Ms. P.'s "buttocks" when he was kissing and hugging her after their daughter was born. Again, Mr. G. was complaining they did not have a sexual relationship because of her not wanting him to touch her. It is the court's view when Mr. G. told Ms. P. that he wouldn't "touch [her] anymore," he was admitting he had previously engaged in that behaviour.

[65] The court is not using Ms. P.'s comments and allegations in the texts in Exhibits 5, 6 or 7 for the truth of their contents, however, they do provide context for Ms. P.'s emotional state in the period after the birth of their daughter in January 2018, and after she left Mr. G.'s residence in June 2018. The fact Ms. P. was upset has probative value. As Justice Schreck pointed out in Nwoko, at para. 30, "It is well established that a trier of fact is entitled to rely on a complainant's post-event emotional state as confirmation of her allegations: R. v. J.A.A., 2010 ONCA 491, [2010] ONCA 491, 261 C.C.C. (3d) 125, at paras 17-8, rev'd on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397, at para. 33." All of Ms. P.'s text messages are admissible as part of the narrative and as further circumstantial evidence of Ms. P. being upset.

[66] More importantly, Mr. G.'s text messages are admissions by him through the comments and responses he sent and can be utilized to assess his credibility and reliability and compare with his testimony. As discussed above his texts in many instances are in direct conflict and are inconsistent with his testimony. In the court's view they adversely affect his credibility and reliability. It is also clear that Mr. G. was upset with Ms. P. because for "a year and a half" he had been dealing with her position that she did not want him to touch her.

Credibility Assessment

[67] In the court's view Mr. G.'s testimony was disingenuous and calculated to deflect criticism away from himself. His memory was quite selective and he recalled very little of Ms. P.'s conversations with him concerning her pain and discomfort as a result of the difficult birth and delivery of their daughter, which he testified he witnessed. In fact, the court found Mr. G.'s evidence to be internally inconsistent and unbelievable respecting this issue. An example of this was Mr. G.'s evidence of being present at the birth and observing first hand how difficult it was for Ms. P. because she was "ripped" in that area, yet he could not recall anything of what she said to him after this concerning her continuing pain, discomfort and her concerns about them engaging in intercourse. Mr. G. later in cross-examination indicated Ms. P. did express reservations and concerns about having intercourse but according to Mr. G., she said she would try. In the court's view Mr. G. was deliberately being vague in his recollections and often attempted to minimize this issue. As indicated above Mr. G. was often evasive in the manner he answered the questions put to him by the Crown.

[68] Further, his evidence was completely inconsistent and contrary to the text messages he sent or responded to with Ms. P. in Exhibits 5, 6 and 7. Ms. P. testified the text message conversation set out in Exhibit 5, between herself and Mr. G., occurred seven weeks after she gave birth to her daughter, this was specifically referred to in her text and was sent after they had intercourse. In the court's view the comments and responses by Mr. G. do not make sense if the intercourse had not taken place. As indicated above it is the court's belief the text messages in Exhibit 6 were sent prior to the occasion intercourse occurred. Mr. G. was not asked any questions about his text messages contained in Exhibits 5 and 6 during his evidence in-chief. Mr. G.'s evidence was that the intercourse occurred somewhere between nine and ten weeks after Ms. P. gave birth compared to Ms. P.'s evidence it occurred around seven weeks after. In the court's view this timing difference is not significant and is a further example of Mr. G. deflecting criticism away from himself by attempting to give the impression he was concerned and sympathetic about Ms. P.'s condition. In the court's view throughout his evidence Mr. G. had an agenda to come across as sympathetic and understanding towards Ms. P.'s on-going difficulties with pain and discomfort.

[69] Further, his evidence that he was certain he did not ask Ms. P. if they could engage in intercourse until a month after she saw her doctor because she was complaining she still experienced pain changed during his cross-examination. The court finds on the whole of the evidence Mr. G. was not concerned about Ms. P.'s physical condition. The text messages in the court's view demonstrate all Mr. G. was concerned about was when he was going to be able to have sex with Ms. P. His only concern was when Ms. P. would give into his demands for sex and, if not intercourse, it was his position they could do other things, she could "give him head." In the court's view the inconsistency between his testimony and text messages he sent when the events were occurring or had occurred reflect serious deficiencies in Mr. G.'s credibility and reliability.

[70] As a result of the findings above, the court does not accept Mr. G.'s denials of grabbing Ms. P.'s breasts when she would be breast-feeding or grabbing her vaginal area over her clothes when he came up behind her or grabbing her from behind and "dry humping" her on two occasions. Further, the court does not accept Mr. G.'s evidence as it relates to the occasion he had intercourse with Ms. P. Further, his evidence does not raise a reasonable doubt after considering it in the context of the evidence as a whole.

Consent and the Defence of Honest but Mistaken Belief in Communicated Consent

[71] Mr. G.'s position as to whether Ms. P. consented to the one instance of intercourse was that they discussed it before they went up to the bedroom and she agreed to have intercourse with him. She never said no just before he started and she never told him to stop once he had started. For the reasons indicated above the court does not accept Mr. G.'s evidence on this issue and the court does not have a reasonable doubt when it considers it in the context of all of the evidence led at this trial.

[72] The court must therefore go on to consider whether the evidence the court does accept satisfies it beyond a reasonable doubt of Mr. G.'s guilt. The court found Ms. P. to be a forthright, strong and credible witness. Her evidence flowed logically. She provided her evidence in a straightforward manner and the court did not believe she was being evasive when she was answering Mr. Fraser's questions. She did not become argumentative despite a vigorous and pointed cross-examination by Mr. Fraser, rather she gave her evidence in a calm and measured manner. Her evidence was internally consistent throughout. Further, Mr. G.'s comments and responses in his text messages with Ms. P. in Exhibits 5, 6 and 7 provided corroboration of her evidence in court relating to the fact Mr. G. was repeatedly placing demands on her to have sex after their daughter was born. The court found Ms. P. to be a credible and reliable witness. She was not shaken in her evidence despite a vigorous and forceful cross-examination. Consequently, the court accepts her evidence as it relates to the instances of Mr. G. grabbing her breasts or grabbing her vaginal area over her clothes when he would hug her from behind or the two occasions he came up behind her and "dry humped" her. The court finds these were occasions Mr. G. was attempting to get Ms. P. to engage in sexual relations despite her repeatedly telling him she was not interested in sex and she was still experiencing pain, tenderness and discomfort from the birth and delivery. The court is satisfied beyond a reasonable doubt those events occurred in the time period set out in the information.

[73] The remaining sexual activity engaged in by Mr. G. is when he had sexual intercourse with Ms. P. in their bedroom. Mr. Fraser raised in his written submissions that Mr. G. had an honest but mistaken belief in the communicated consent by Ms. P. to engage with him in having intercourse because she had affirmatively communicated her consent through her conduct of voluntarily going upstairs ahead of him, taking off her clothes and laying on the bed. Ms. P.'s evidence was she gave into Mr. G.'s repeated demands for sex because she felt she had no choice but to acquiesce, so she went upstairs to their bedroom, she did not recall if she or Mr. G. took off her clothes but she did get on the bed on her back after her clothes were removed. She also testified she tried to convey to him she really did not want to have intercourse by saying she was not comfortable because their daughter was in the room but Mr. G. proceeded to put his penis in her vagina. It may have been that Mr. G. honestly believed Ms. P. was consenting to their engaging in intercourse when she walked upstairs and ended up on the bed without her clothes. On her evidence she testified she did not want to have intercourse but felt she had no choice and she did not voice this to Mr. G. prior to him commencing intercourse. However, the court has no doubt she had previously expressed concerns and apprehensiveness to Mr. G. about whether this would cause her pain. The court does not accept Mr. G.'s testimony that they discussed having intercourse and she simply agreed. In the court's view Mr. G.'s evidence on this issue was inconsistent and ultimately he agreed in cross-examination that Ms. P. had voiced concerns about whether it would hurt her and cause her pain. The court accepts Ms. P.'s testimony that as soon as Mr. G. began having intercourse with her she immediately told him to stop because it hurt and was causing her pain. At that point Mr. G. should have immediately stopped what he was doing but he continued until he ejaculated.

[74] As discussed above Mr. G.'s evidence was internally inconsistent and he was evasive when testifying about Ms. P.'s pain and discomfort caused by the difficult birth of their daughter. The court has no doubt on the whole of the evidence that Ms. P., after the birth, continued to experience considerable pain and discomfort. The court finds Mr. G. was completely aware of this situation as reflected in the comments and responses in his texts, where he expressed his frustration and anger with Ms. P. because she did not want to have sexual intercourse with him as a result of this circumstance. Mr. G. testified several times during his evidence that Ms. P. was concerned about whether intercourse would be painful and cause her discomfort and had communicated this to him. For the longest time she refused to have intercourse with him because of the pain she was still experiencing and because of her concern that having intercourse would cause her more pain and discomfort.

[75] Consequently, in the court's view, there was an obligation on Mr. G. to take reasonable steps to ensure that Ms. P. was in fact continuing to communicate consent to have intercourse. There must be an air of reality to this defence. Mr. G. testified in cross-examination that Ms. P.'s consent to have intercourse was premised on her saying she was prepared to try it out, to see if it caused her pain. Given the consent he said he received from her, it was incumbent on him to continue to ask her if the intercourse was causing her pain, which he did not do. As already indicated above Mr. G.'s evidence on this issue was equivocal and his memory was extremely selective. The court accepts Ms. P.'s evidence that as soon as Mr. G. put his penis in her vagina she told him to stop because it was causing her pain. The court finds Mr. G. did not stop, he deliberately ignored her request and chose to finish. The court accepts Ms. P.'s evidence that Mr. G. told her, "It will be quick, I need this," and told her it would only be a minute and shortly after saying this he ejaculated. He did not accede to her withdrawal of consent. The court is satisfied the Crown has proven beyond a reasonable doubt Mr. G. sexually assaulted Ms. P. as she did not consent to his continuing to have intercourse with her because it hurt and was painful and as a result, she immediately told him to stop.

Verdict

[76] As a result there will be a finding of guilt and conviction registered on the charge of sexual assault over the period January 2018 to June 2018.

Released: March 5, 2020

Signed: Justice Peter C. West

Footnote

[1] Mr. G., at p. 31 of the transcript of his cross-examination on December 20, 2019 says, "Ms. P. is a sexual person." Again, there was no section 276 application brought by the defence and the court is not going to consider Mr. G.'s assertion that Ms. P. was a sexual person.