Court Information
Ontario Court of Justice
Date: September 18, 2020
Court File No.: Toronto Region
Parties
Between:
Her Majesty the Queen
— and —
David Bolton
Judicial Officer and Counsel
Before: Justice L. Feldman
Heard on: June 24, August 13, October 15, December 6, 2019, January 14, 2020
Reasons for Judgment released on: September 18, 2020
Counsel:
- K. Pitt — counsel for the Crown
- K. Zadorozhnya — for the defendant David Bolton
Judgment
FELDMAN J.:
Introduction
[1] David Bolton entered not guilty pleas to charges of Sexual Assault and Fail to Comply with Recognizance. It is alleged that Mr. Bolton forced vaginal and anal intercourse on his then spouse, Tanya Anakons, against her will. It is also alleged that subsequently while on bail, he contacted the complainant on Facebook, contrary to a term of his release.
[2] Ms. Anakons testified for the prosecution. Mr. Bolton testified in his own behalf. In addition, the defence called the complainant's ex-mother-in-law, Donalda May, to give evidence. I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.
The Evidence
Complainant's Testimony
[3] Tanya Anakons began a relationship with the defendant in September 2012. They dated for some time and were married in May 2014. In her examination-in-chief, the complainant testified that between March 2015 and August 2017, Mr. Bolton would have sexual intercourse with her during the night without her consent 2-3 times per month, although not every month. She says he attempted anal sex once or twice but was unable to penetrate her. However, in cross-examination she increased that to 10 times, attempts that led to occasional penetration. She says she experienced no pain and never spoke to him about these incidents.
[4] Ms. Anakons left the defendant in October 2017. The following January, she complained to a Justice of the Peace about being harassed by him. She says the justice suggested she tell the police about the sexual allegations. She did so the next day. She says she was the first to seek a peace bond, followed by the accused who did the same. That was not true. In court, they both consented to sign a peace bond.
[5] Ms. Anakons told the court that in breach of a non-communication order, following his arrest, Mr. Bolton reached out to her on Facebook to say he was sorry and still missed her.
Medical Evidence
[6] The defendant suffers from erectile dysfunction because of his dependence on insulin for diabetes, as well as medication for acid reflux and high blood pressure, although the complainant indicates his use of a ring allows him to remain erect for several minutes.
Inconsistencies in Complainant's Evidence
[7] There are a number of inconsistencies apparent in the complainant's testimony that arise in her cross-examination and that reflect both on her ability to recall and her reliability. For example, rather than once or twice, as she indicated in chief, she told the police that Mr. Bolton attempted anal sex about 10 times. She also informed the authorities that he penetrated her anus but claims not to recall saying that. She now says that happened.
[8] As well, Ms. Anakons did not tell the police she first left the defendant in October 2016 and moved in with her girlfriend, now wife, Ashley Fountain, she says, because they didn't ask, permitting an inference she chose to control the flow of information. She claims that after she left the second time, also for Ms. Fountain, it was Mr. Bolton who asked her back. There are emails from her to him that belie that claim:
Feb 2, 2017 (Tanya, 3:14 p.m.): Are you mad at me is that why you are not talking to me?
Feb 2 (Tanya, 3:26 p.m.): I really wish you would talk to me
Feb 3 (Tanya, 2:54 p.m.): Why you being like this I love our boys and wish you'd stop being mad at me and stop making the boys and I suffer. I love them so much I am going crazy
Feb 3 (Bolton, 3:08 p.m.): I told you they and I needed time Tanya they expect you to move back and I also told you that if you don't show for visits I will cut you off I have no legal obligation to let you see them you threatened me with court so go to court plus I told you I will contact you when ready and you keep pushing
Feb 7 (Tanya, 12:28 p.m.): Hey can we talk plz I'm sorry
Feb 7 (Bolton, 4:16 p.m.): I have been nice I have asked for you to not bother me, and that the boys need space I owe you nothing Tanya do you understand me I am been civil and respectful please leave me and the boys alone for now I said will contact you when I feel there is ready
Feb 7 (Tanya, 8:50 p.m.): I just wanted to talk to you about us that's all today when I seen you I just wanted to come and hug and kiss you I do miss you and the boys I'm being for real this time
Feb 7 (Bolton, 9:07 p.m.): Why the fuck you doing this shit Tanya for reals
Feb 7 (Tanya, 9:15 p.m.): Cause I mean it if you seen me today you could tell I wasn't happy I feel isolated here
Feb 7 (Tanya, 9:26 p.m.): I was happier with you but if you want me to leave you alone and not come home I will understand ok
Feb 7 (Tanya, 9:26 p.m.): I wanna come home right now
Feb 7 (Bolton, 10:39 p.m.): Why now?
Feb 7 (Tanya, 11:06 p.m.): Cause I know I did wrong and I wanna fix us
Feb 7 (Bolton, 11:13 p.m.): What is us?
Feb 7 (Tanya, 11:15 p.m.): You me and our boys
Feb 7 (Bolton, 11:21 p.m.): your something else Tanya I thought you were happy there and that you love Ashley
Feb 7 (Bolton, 11:32 p.m.): Say we worked on this what is supposed to happen when you become unhappy again your gonna find another way out
Feb 8 (Bolton, 12:27 a.m.): What's the real reason you wanna work this out?
Feb 8 (Tanya, 6:49 a.m.): Can we come home this morning?
[9] Implausibly, Ms. Anakons claims not to recall these emails while conceding the possibility they are accurate. It is improbable she would not recall exchanges of such significance. On this fact in issue, in speaking to a self-serving narrative that suggested it was the defendant who initiated their reconciliation, she was not straightforward with the court.
[10] She misled the court, as well, in suggesting it was she who first sought a peace bond. She knew it was otherwise. A recording of her attendance before Bourgan J.P. on December 14, 2017, indicates that she was put out that the defendant was telling others she was harassing him. She initially told the justice only that she feared for herself and his kids' safety when the defendant was drinking. She claims not to have mentioned the sexual assaults out of embarrassment.
[11] When told her information was insufficient for process to issue, she went away and then added non-consensual intercourse, but not anal sex, that she wrote occurred only during August and September. This is inconsistent with her testimony.
[12] The evidence also indicates it was Mr. Bolton who first sought a peace bond, apparently for harassment, to which the complainant responded by seeking her own. Ultimately, they both signed a peace bond. I don't accept that she consented to sign her bond in court during which she heard the conditions for the first time. That is not regular order.
Defence Witness — Donalda May
[13] Donalda May's son, Jason, lived with Tanya who bore him 3 children. Ms. May had custody of those children for 7 years. She maintained contact with the complainant.
[14] After she married Mr. Bolton, Tanya complained to Ms. May that she was unhappy with the lack of sex in her marriage. On the first day of trial, Ms. May told the court that Tanya came out of the courtroom and was critical of what was going on inside it. She was yelling and swearing, "that fucking bullshit, he is calling me a liar, where's that little prick. I'm going to fucking pound him". She had to be held back. Her behaviour indicated an angry and punitive demeanour.
Defendant's Testimony
[15] David Bolton is 45. He lives with his 5 children and his girlfriend. He confirmed that Tanya moved out in October 2016 to be with her current wife, only to return 4 months later the day after she asked him to take her back. She left again after 8 months.
[16] He sought a peace bond against her because he felt harassed and because on one occasion she drove her van directly at him. Once served, she followed suit.
[17] Mr. Bolton denies the allegations. He says Tanya initiated sex more than he did. He is limited by erectile dysfunction. He says she has never said no to him nor complained about non-consensual sex. He recalls 3 instances of anal sex.
Facebook Messages Evidence
[18] Mr. Bolton testified that the messages he is alleged to have sent the complainant were from a false account not created by him. P.C. Derek Tindall looked into this issue. The defendant has a Facebook profile under the name 'David Verne Bolton' with a picture of him in Indigenous regalia. It has a search history. By contrast, the subject messages were purportedly sent on a Facebook account under the name 'Dave Bolton'. No search results were found. The defendant believes Tanya created the account. It has been erased.
[19] Mr. Bolton gave inconsistent evidence regarding the timing of when he deleted the second account, at first testifying that it was done over a year ago, later conceding it was likely done after he was first charged. This would mean he had an opportunity to message Tanya prior to the breach charge. Still, the evidence of the accounts is unclear and uncertain.
Position of the Parties
[20] Mr. Pitt, for the Crown, submits that the court ought to view the complainant's shifting narrative and piecemeal disclosure regarding the substantive allegation in the context of her embarrassment and fear of the accused. As well, he says after she left, the complainant could not have had access to the defendant's devices. He suggests she was confused when she testified that she signed a peace bond without receiving any advice beforehand.
[21] Ms. Zadorozhnya submits that while Mr. Bolton was forthcoming in his testimony, Ms. Anakons' evidence was replete with inconsistencies and therefore unreliable. She says that on this evidence the Crown has not met the W.D. standard.
Conclusion
[22] It is likely Tanya was violated as she describes. However, the inconsistencies in her evidence and attempt to control the narrative in her dealings with the police bear on the reliability of her testimony. It is also open to be inferred that in her peace bond endeavour the sexual assaults were an afterthought attached to a second application for process given the comment of the justice that the content of her initial application was insufficient.
[23] Ms. Anakons was assertive in her testimony about the sexual assault as she was outside the courtroom. Mr. Bolton was firm in his denial of the allegations. On all the evidence, given the reliability concerns, I am uncertain what occurred as between the parties. In the result, the charge of Sexual Assault is dismissed.
[24] Regarding the charge of Fail to Comply, it is probable that the defendant communicated with Tanya, but the evidence that he sent her messages on the second deleted account is uncertain and leaves me in reasonable doubt that he sent them. That charge is also dismissed.
Released: September 18, 2020
Signed: Justice L. Feldman