WARNING

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 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: October 6, 2020

Court File No.: Ottawa 19-DV4754

Between:

Her Majesty the Queen

— and —

G.E.

Before: Justice P. K. Doody

Heard: August 11, 12, 13, September 2, 3, 2020

Reasons for Judgment

Released: October 6, 2020

Counsel

Robert Thomson — counsel for the Crown

Dominic Lamb and Jonathan Nadler — counsel for the defendant

Eric Granger — counsel for the complainant

Decision

DOODY J.:

Overview and Issue

[1] The defendant and complainant were engaged in consensual sexual intercourse on the morning of February 4, 2018. After they had been doing so for a period of time, the complainant told the defendant that she wanted to stop.

[2] The complainant has testified that after she said this, the defendant continued to engage in intercourse. The defendant denies this. He testified that they both mutually stopped as soon as the complainant said she wanted to stop.

[3] The defendant has been charged with sexual assault.

[4] There is no question about whether the complainant consented to the sexual activity before she said she wanted to stop. She has testified that she did. Nor is there any question about whether the defendant had an honest, but mistaken belief that the complainant had communicated consent after she said she wanted to stop. He has testified that he stopped immediately after she said she wanted to stop.

[5] Both parties agree that the only issue is whether the Crown has proven beyond a reasonable doubt that the defendant continued to engage in sexual activity with the complainant after she said she wanted to stop. If so, the defendant is guilty. If not, the charge must be dismissed.

How I Must Decide This Case

[6] If the complainant's evidence that the defendant continued to engage in sexual activity after she said she wanted to stop is accurate, the defendant is guilty. If the defendant's evidence that he stopped as soon as she said she wanted to stop is accurate, he is not guilty. There is very little evidence confirming or contradicting the testimony of either the complainant or the defendant. It will be necessary for me to consider all of the evidence when assessing each of their evidence.

[7] However, this trial is not a credibility contest. The issue is whether the Crown has proven that the defendant did not stop engaging in sexual activity when the complainant asked him to.

[8] The presumption of innocence requires that I decide this case in a particular way, set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. If I accept as accurate the defendant's evidence that he stopped when asked, I must acquit. If I do not accept that that evidence is accurate but, after considering all of the evidence, I am left in a state of reasonable doubt as to whether he stopped when asked, I must acquit. Even if I am not left with a reasonable doubt by the defendant's evidence, I must consider whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt that he is guilty.

[9] If I do conclude that I do not accept the defendant's evidence as true and that it does not leave me with a reasonable doubt after considering all of the evidence, I must not allow my disbelief to factor into my analysis of whether, on the balance of the evidence, his guilt has been proven beyond a reasonable doubt.

[10] The W.(D.) analysis ensures that I do not treat the fact-finding exercise as a choice between the evidence of each of the defendant and the complainant to determine which is more likely to be true. If I did that, I would not be applying the bedrock principle that an accused person can only be convicted if the evidence establishes beyond a reasonable doubt that he or she is guilty.

[11] I must consider both the credibility and reliability of the evidence. They are not the same. Credibility is about a witness' intention to give truthful evidence. Reliability is about the accuracy of the witness' testimony, even if he or she is honestly trying to tell the truth. Reliability engages consideration of the witness' ability to accurately observe, recall, and recount events in issue. Credibility is not a proxy for reliability – a credible witness may give unreliable evidence. (R. v. H.C., 2009 ONCA 56 at para. 41; R. v. Morrisey (1995), 22 O.R. (3d) 514 (C.A.) at p. 526; R. v. Slatter, 2019 ONCA 807 at para. 60)

[12] A witness' credibility is enhanced if there is evidence from a source other than the witness that materially confirms or supports his or her testimony. Credibility is diminished if there is such evidence that is incompatible with the testimony.

[13] One of the most valuable means of assessing a witness' credibility is to determine whether he or she said something at another time which is inconsistent with the evidence given at trial. (R. v. M.(A.), 2014 ONCA 769 at para. 12) The converse is not true. Repeated assertions by a witness that a particular thing happened does not make it more likely that it did. If a witness said one thing on one occasion, however, and a contradictory thing on another occasion, one of those versions is wrong because they cannot both be true. Where a witness has been inconsistent about a key fact, I am unable to accept that the evidence given in court is true unless I can find that there is a rational basis for concluding that that statement was true and the other statement was wrong. (David M. Paciocco, "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment" (2017) 22 Cdn. Criminal LR 31 at p. 67)

[14] Occasional inconsistencies on peripheral matters are less likely to be important. Honest people can make mistakes about what was thought to be unimportant at the time it occurred. Even minor inconsistencies, however, can show that the witness is careless about the facts she or he provides to the court. And the more inconsistencies, even peripheral ones, the more likely that my confidence in the result can be undermined. (Paciocco at p. 67)

[15] Where a witness is inconsistent about something that, realistically, would not be forgotten, it is likely to play a large part in credibility evaluation. (Paciocco at p. 68) To put it another way, where an inconsistency involves something about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which a trial judge should be concerned. (R. v. G.(M.) (1994), 93 C.C.C. (3d) 347 at p. 354 (Ont. C.A.); M.(A.) at para. 13)

[16] A witness' credibility is enhanced when he or she shies away from apparent exaggeration or minimization, admits unflattering or personally difficult facts, or credibly acknowledges the weaknesses in his or her evidence. The witness' credibility is diminished when they answer "strategically" – by not directly answering the questions asked, and trying to control the narrative. (Paciocco, p. 68)

[17] I must consider whether the evidence is plausible – whether it accords with "common sense" based on the judge's "experience of human affairs". In some cases, however, it is dangerous to conclude that a witness' evidence is not credible because the judge believes that a person would not act that way. Frequently such a conclusion is based on incorrect assumptions about how a person would act. This danger is particularly acute in sexual assault cases, where the "common sense" applied by the judge may "mask reliance on stereotypical assumptions". It is wrong to rely on pre-conceived views about how sexual assault victims would behave. (R. v. Cepic, 2019 ONCA 541 at para. 14)

[18] Demeanour includes things such as the witness' posture and "body language", whether he or she makes eye contact with the lawyer posing questions, and whether he or she pauses before answering. These things can be dangerous to use in judging credibility. Courts have learned that the experience of being a witness affects different people differently. Some may appear nervous because they are simply nervous about speaking in public, or because the process is strange to them, or because they are very concerned about how they and their evidence are viewed. These things are not necessarily incompatible with a desire to give truthful evidence. If a witness is hostile to the questioner, however, or shows an abrupt change in attitude when one party is questioning him or her as opposed to the other, it may be more reasonable for the court to draw inferences about credibility. (Paciocco, p. 17)

[19] As I have said, reliability is a different concept from credibility. Reliability is concerned with whether a witness is able to have observed the things about which he or she is testifying, remember what has been observed, and communicate those observations accurately. Memory issues can be raised directly as a result of admissions made by the witness or from evidence of other witnesses. Concerns about memory can also arise from internal inconsistency. While inconsistency may arise because the witness is attempting to mislead, it may also be a symptom of unreliability.

[20] I do not have to accept, reject, or have a reasonable doubt about all of the evidence of these two key witnesses. I may decide to accept, reject, or remain uncertain about all or some of the evidence of each of them. The greater the concern I have about the credibility or reliability of either of them generally, however, the less likely it is that I will accept their evidence on a particular point.

Evidence of the Complainant and Defendant About the Sexual Activity on February 4, 2018

[21] The complainant testified that she had slept the night before in a bedroom across the hall from the bedroom in which the defendant had slept. She had been co-sleeping with the infant daughter of her and the defendant.

[22] She testified that early that morning, the defendant asked her repeatedly to have sex with him. She said that she felt a lot of pressure from him to agree. She agreed that ultimately she did consent to engage in sexual activity.

[23] She said that after they had started to engage in sexual activity, she was lying facedown sideways on the bed, with her feet just touching the floor. The defendant was behind her leaning over her, penetrating her vagina from the rear. She expressed a desire to stop. She testified that when she did so, the defendant said something along the lines of "just another minute". He then continued to thrust into her. The complainant testified that as she pushed herself up, the defendant was still thrusting into her.

[24] When asked how many times he penetrated her after she said she wanted to stop, she said "a couple, enough to realize that this is – this is not stopping, um, at which point I had to push myself up and off the bed." Later in the examination in chief, when Crown counsel returned to this subject, she was asked what she meant by "a couple". She replied, "I think it was two or three times. I was not counting."

[25] She described the defendant's demeanour after she stood up as frustrated and a little angry. She said she then left the bedroom, went downstairs to get a drink, came back upstairs and went into the baby's room where she had been sleeping.

[26] She testified that later that day, she left the house where she, the defendant, and their baby had spent the night and went to her parents' house.

[27] The defendant testified that he awoke between 5:30 a.m. and 5:45 a.m. on February 4. The complainant had awoken as well. He had slept in a bedroom across the hall from the room in which she had slept with the baby. He testified that they had a brief discussion in the area around the hallway between the two bedrooms. The baby was awake.

[28] The defendant testified that he asked the complainant to have sex with him. He could not recall any specific details of what was said, other than that he asked her more than once in what he described as "an endearing, sort of lovey way trying to be flirty and get her in the mood." He testified that the complainant was "not really into the idea" because it was early and the baby was awake. After a short discussion, he understood that she would only consent to have sex with him if the baby went to sleep. He went downstairs and the complainant went back into the room with the baby.

[29] He testified that after he had been downstairs for a little while, he received a text message from the complainant which he interpreted as her inviting him to come upstairs to engage in sexual intercourse with him because they had a window of opportunity, the baby having gone to sleep.

[30] He went upstairs. He met the complainant in the area around the hallway and the doors to the two bedrooms and the bathroom, which were close to each other. He said that he and the complainant engaged in foreplay, embracing each other and kissing. The complainant told him that it needed to be quick. They moved to the bed and continued the sexual activity, which escalated to sexual intercourse, first with him on top of her and then with her lying facedown across the bed with her feet on the floor. He testified that he entered her from the rear.

[31] He testified that after between 5 and 10 minutes of intercourse, the complainant said that they needed to stop. He said that they immediately mutually stopped. He said that he pulled back and the complainant moved up a bit and moved forward. He testified that he did not have sexual intercourse with her after she said she wanted to stop. He said that the complainant repositioned herself on the bed; they talked about something which he could not recall; and then he got dressed.

Analysis

[32] I cannot conclude that I accept the defendant's evidence that he stopped immediately after the complainant said she wanted to stop. The main reason I cannot do so is that I cannot completely reject the evidence of the complainant. However, the defendant's testimony was not significantly weakened in cross-examination. I have concerns about the reliability and credibility of the complainant's evidence. After considering all of the evidence, including the evidence of the defendant, I have concluded that the Crown has not proven beyond a reasonable doubt that the defendant continued to engage in sexual activity after the complainant said she wanted to stop.

[33] The defendant was cross-examined at length. Text messages between him and the complainant were put to him with the suggestion that they were contradictory of his evidence and confirmatory of the complainant's. The defendant's evidence, in my view, was not significantly affected by the cross-examination. His evidence was, with one or two exceptions, consistent with statements made by him in texts sent on the day of the alleged assault and the days following. He was not evasive in his responses. He answered questions clearly. His evidence was not inherently incredible.

[34] Much was made by both the Crown and the defence about a series of text messages between the complainant and the defendant between 6:17 a.m. and 6:20 a.m. on February 4. Crown counsel submitted that these text messages showed that the complainant was not enthusiastic about engaging in sexual activity that morning, and that this bolstered her credibility and diminished the defendant's credibility. Defence counsel submitted that they showed that the complainant was enthusiastic, with the opposite result.

[35] In my view, the text messages are confirmatory of the defendant's evidence. They do show that the complainant was concerned about waking the baby, as both the complainant and the defendant testified. They do not, however diminish the defendant's credibility. In any event, the issue is not whether the complainant was enthusiastic about having intercourse with the defendant. She acknowledges having consented to intercourse.

[36] The text messages are as follows:

Complainant at 6:17:08 a.m.: Come if you're coming [followed by emoticons of a soldier in a bearskin hat, two drums, a trumpet, bowling balls, and a man juggling]

Defendant at 6:18:43 a.m.: The only person cumming in the next few minutes is you [followed by emoticons of an eggplant and a peach]

Complainant at 6:19:28 a.m.: Baby is sleeping

Complainant at 6:19:35 a.m.: If you wake her I'll skin you

Defendant at 6:19:54 a.m.: Ok you start with my [followed by an emoticon of an eggplant]

Complainant at 6:20:01 a.m.: No

[37] The defendant testified that he received the text from the complainant shortly after he went downstairs. He interpreted the emoticons as having sexual connotations. He said that the drums referred to "banging" and the trumpet to "blowing". The bowling ball with pins was a reference to "coming down my alley", and the juggler playing with balls was a reference to playing with testicles. He responded with an overtly sexual message with emoticons of an eggplant, symbolizing an erect penis, and a peach, symbolizing a woman's buttocks. He testified that his message, in which he suggested that the complainant "start with" an eggplant, was a suggestion that she engage in fellatio, and that he interpreted her response "no" as a rejection of that suggestion, not a rejection of sexual intercourse.

[38] The complainant did not recall sending or receiving the text messages. She testified that she had never used the emoticons of the soldier, drums, bowling ball and pins, trumpet or juggler in a sexual way. This was acknowledged by the defendant. She testified that her message "come if you're coming" accompanied by those emoticons was not sexual in nature. She said that none of the texts she sent were sexual in nature, unlike those from the defendant which were.

[39] The defendant acknowledged that he had never used the emoticons in the 6:17 text message in a sexual way, although he understood when he read them that that was the complainant's intent. In my view, it is reasonable that the defendant would have viewed that message as an invitation to engage in sexual activity. This is especially so given the context of the discussion the defendant said that he had with the complainant a few minutes before in which she had said that she was not interested.

[40] The emoticons are, if not necessarily sexual, at least indicative of a positive attitude by the complainant to the defendant coming back upstairs. They look like a parade. They are not negative or a message that she does not want to see the defendant. The combination of the words "come if you're coming" with the emoticons are quite the opposite. And the complainant acknowledges that she did consent to the sexual activity which took place thereafter. The eggplant emoticon at 6:19:54 a.m., telling the complainant to start with the defendant's penis (the eggplant having been acknowledged by the complainant to be a symbol for a penis) is more likely to be a reference to starting the sexual activity with the complainant dealing either orally or manually with the defendant's penis than to sexual activity of another kind. The complainant's response "no" is, when considered with her text message of 6:17, more likely to be a rejection of that activity than a rejection of sexual activity of any kind.

[41] These messages, in my view, are confirmatory of the defendant's evidence that the complainant changed her mind after her initial discussion with him, and had decided to engage in sexual activity with him, although she wanted it to be quiet so the baby was not awoken. My conclusion is strengthened by the complainant's acknowledgement that she did consent to sexual intercourse.

[42] The defendant testified that he may have said, at some point during the sexual intercourse, "I am almost there". When asked specifically if he said those words after the complainant told him to stop, he said that he did not. He repeated that he stopped as soon as she asked him to.

[43] Crown counsel submitted that it only made sense that these words, if spoken by the defendant, must have been said after the complainant told him to stop, and that this was evidence that the defendant did continue. I do not accept this submission. First, there is no evidence that the defendant did say those words. The complainant testified that his response to her request to stop was something along the lines of "just another minute". The defendant denied saying anything of the sort. He did not admit to having said "I am almost there", just that he may have. Crown counsel's submission has no evidentiary foundation.

[44] In any event, I do not accept the premise that, because there is no reason for the defendant to have said them at any other time, these words, if spoken, must have been said after the complainant asked the defendant to stop.

[45] The complainant testified that one of the things that the defendant said to her in an attempt to have her consent to sex that morning was that he would get a prostitute if she did not agree to have sex with him. The defendant initially denied ever saying that to the complainant. He was then confronted with a text message he had sent her at 6:55 a.m. on February 6, 2 days after the alleged assault, in which he wrote, "What I said about a prostitute was completely wrong although I'd never ever do that it was not a good joke and those types of things I will no longer say." He then testified that he guessed that he had said something about a prostitute, but he was certain that he had not said it on the morning of February 4. He testified that the statement he made in the February 6 text message was about an argument he had had with the complainant on the evening of February 4 or on February 5. This inconsistent evidence diminishes his credibility somewhat.

[46] Crown counsel submitted that the iMessages the defendant sent to the complainant in the two days after the alleged assault were effectively admissions that he had assaulted her. The following two messages are examples.

[47] On February 4 sometime after 12:17 p.m. the complainant wrote to the defendant:

I feel uneasy about this morning like I need our home to be my safe place where I don't feel pressure or added stress like. I know you just love me and want to show me in a sexual way but I really need you to think of my heart and what I've been through and maybe not push so hard. [redacted portion] And I just didn't want to this morning. And not because anything was wrong or I didn't think it would be good I just didn't want to and that has to be okay with you. I understand saying no might make you feel upset and I've been trying to make it more of a priority lately because I know you need it but my answer isn't always going to be yes and I need salesman [defendant's name] to quiet his voice and I need amazing husband [defendant's name] to just be compassionate with me and understand it's not you.

[48] After some short messages dealing with other things, the defendant wrote:

I just want you to know that if you read this in the night that I'm not mad at you I'm just sad that you felt the way you did it was never ever in a million years my intention. I'd die for you and nugs so to be the one who's hurt you I feel so so so sad I try hard to be the best for you and to give you everything and to love you and compliment you and be sexually attracted to you and make you feel good the last thing I want is you to feel the way you do it hurts me and caused me in [ sic ] fear that I hurt you to get super distant and weird but my deepest feeling is one of hurt that I made you sad and feel pressure I honestly had intent to do that if only you could see inside my heart you'd know for sure that I just love you and am extremely attracted to you at all times on amount of sex could satisfy me enough to want you I'm sorry if you feel that is a negative thing I honestly just am so into you everything you do is sexy and amazing and it's cuz I love you that I always want to be connected and around you and spooning cuz I just love you that's all it's pure passion I have for you at all times and I just never meant to hurt you I love you I hope if you read this in the night you'll understand and love me too Xo

[49] Crown counsel submitted that by his apologies, the defendant was admitting that he had assaulted the complainant. I do not accept that submission. The defendant testified that he was attempting to assuage the complainant and retain her affections. He was apologizing for what the complainant saw as pressure from the defendant to have sex with him that morning. He did not admit that he did pressure her. In cross-examination, he denied that he was in any way referring to not stopping when the complainant asked him to.

[50] The complainant clearly felt that the defendant was pressuring her to have sex that morning. She testified to that. I accept that evidence. The defendant characterized what he was doing as lovingly and endearingly attempting to convince her to have sex with him. Both could well honestly hold those views. The complainant testified that she did consent to the sexual intercourse until she asked him to stop. The question of whether the defendant's attempts to convince the complainant to have sex with him was inappropriate is not something I have to decide to determine whether he is guilty of the sexual assault with which he is charged.

[51] The iMessages are consistent with the complainant being upset about what she perceived as undue pressure. They are not consistent only with the defendant having sexually assaulted her, or with the defendant having admitted to doing so. The complainant did not accuse the defendant of sexually assaulting her or of continuing after she told him to stop. The defendant did not admit to doing so. The text messages are not admissions by the defendant that he committed the act with which he is charged.

[52] I have significant concerns about the complainant's evidence.

[53] She was a difficult witness. Her attitude in cross-examination was distinctly different than it was in examination in chief. She did not give clear answers to the questions put to her, often responding with information not asked for. She had to be asked the same question a number of times to get an answer.

[54] She gave evidence before me about the key issue – whether she was certain that the defendant continued after she asked him to stop – which was inconsistent with what she had sworn to in the statement she gave to the police in January 2019. She testified before me that she was certain that the defendant continued to thrust. In her sworn statement to the police, she said:

I think he like continued to thrust because I remember like you know like bumping into him as I was standing up.

[55] She denied that there was any inconsistency between that statement and her evidence at trial.

[56] She gave other inconsistent evidence which also raises concerns about her credibility. She testified that the sexual activity occurred "shortly after" the 6:20 a.m. email. She then testified that she did not remember the time it occurred, and the most she could say was that it took place between 6:20 a.m. and 9:20 a.m., when she sent a text to the defendant saying "made it".

[57] These things raise concerns about her credibility.

[58] She had very limited memory of the morning of the alleged assault, which raises concerns about her reliability. She does not remember:

• sending the text messages between 6:17 and 6:20 a.m.;
• how she got from the bedroom in which she slept to the bedroom where she had intercourse with the defendant;
• how the sexual activity between her and the defendant was initiated;
• the words she used when she told the defendant to stop;
• if there was any conversation between her and the defendant when she was standing up and pushing herself away from him after she told him to stop;
• what time she left the residence that day;
• whether she communicated with the defendant before leaving the residence; and
• whether she or the defendant left the residence first.

[59] My concern about the reliability of her evidence is heightened by her sworn statement to the police in which she said "I think he like continued to thrust", which suggests that she was uncertain at that time about whether he did continue. That is the very act with which the defendant is charged.

[60] I have concerns about the evidence she gave the police. She provided the police with copies of text messages between her and the defendant starting at 9:20 a.m. The first message was the one I have referred to in the preceding paragraph. She printed those messages, and gave the police a hard copy.

[61] She did not, however, provide to the police the messages between 6:17 a.m. and 6:20 a.m., which immediately preceded the 9:20 message. Those messages were, as I have explained, at least on their face, consistent with a consensual sexual encounter and inconsistent with her being pressured into sexual activity to which she did not freely consent.

[62] She testified that she did not see the messages between 6:17 and 6:20 when she was reviewing her messages on her phone before printing them off. That is very hard to believe, especially when one considers that the purpose of printing the messages was to support the allegations she was taking to the police. I would have thought that she would have closely reviewed all the messages from that day and made a considered decision about which to include and which to exclude.

[63] She gave other evidence which, in my view, is extremely unlikely. She testified that she could not be sure what she meant when she sent "made it" to the defendant at 9:20 a.m., saying she was unsure if she had left the house by then. She professed to be unsure when the sexual intercourse had taken place other than that it was between 6:20 and 9:20, even though she had texted "come if you're coming" and responded to sexual communications from the defendant at 6:20.

[64] I also have concerns about the timing of the allegation of sexual assault being made to the police.

[65] I recognize that victims of sexual assault will respond differently. Some will make an immediate allegation. Others will wait. Others will never disclose. There are many reasons for delay, including at least embarrassment, fear, guilt, and a lack of understanding and knowledge. As the Supreme Court of Canada recognized 20 years ago in R. v. D.D., 2000 SCC 43 at para. 65:

In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[66] The timing of the allegation of sexual assault by the complainant is, however, concerning because it could relate to a motive she had to make a false allegation.

[67] The complainant and the defendant separated in September 2018. The complainant would only allow the defendant to have access to their child for 5 hours a week, and only if the access was supervised by his mother.

[68] On January 8, 2019, the complainant was served with an application by the defendant, issued out of the Superior Court, in which he was seeking joint custody of their child. On January 11, 2019, the complainant called 911 to report that she did not feel safe. A police officer attended at her door later that day. She gave him a 13 page typed statement which contained a number of allegations against the defendant. On January 28, 2019, she gave a sworn statement to the police in which she made the allegations which form the basis of the charge before me. The defendant's access to the child was further restricted by his bail conditions. She continues to defend against the defendant's application for joint custody.

[69] Three days before the evidence was to commence in this trial, the complainant served an offer to settle the domestic litigation. The offer changed her position from sole custody to custody shared between the defendant and the complainant.

[70] The complainant denied any relationship between the timing of the initial allegation and the defendant's commencing his application for joint custody. She denied any relationship between the timing of the commencement of this trial and her offer to settle.

[71] It is always difficult to deal with an allegation of a motive to fabricate. The evidence is admissible on the issue of credibility of a complainant. (R. v. Jack, 2017 ONCJ 426 at para. 36; R. v. Lutete, 2014 ONCJ 11 at para. 53; R. v. M.B., 2019 ONCJ 349 at para. 26; R. v. P.(A.), 2011 ONSC 2716 at para. 103) However, a similar motive could be ascribed to any complainant who had, in fact, been assaulted by her partner and had a legitimate reason to seek to deny him access or shared custody. Furthermore, as the Court of Appeal has recently held, a misplaced emphasis on motive overlooks the fact that motive is, at best, a secondary consideration, and offers limited assistance to either party when sexual offences are at issue. (R. v. M.S., 2019 ONCA 869 at para. 16)

[72] What sets this case apart from many in which such an allegation is made is the the timing of the initial allegation and of the offer to settle. The initial allegation had the effect of giving the complainant leverage in the dispute which the defendant had just commenced. And the offer to settle was made just before the trial, when that leverage could potentially disappear.

[73] My decision does not rely on this factor. I recognize that it is of limited assistance.

[74] For the reasons I have set out, apart altogether from the timing of the allegation, I am satisfied that the Crown has not proven beyond a reasonable doubt that the defendant continued to engage in sexual intercourse with the complainant after she told him to stop.

[75] The charge is dismissed.

Released: October 6, 2020

Signed: Justice P. K. Doody