ONTARIO COURT OF JUSTICE

Date: November 12, 2020

Central East Region (Oshawa)

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

B.L.

Before: Justice F. Javed

Evidence Heard: February 11, 12, 13, July 31, October 7, 2020

Submissions: October 14, 2020

Reasons for Judgment rendered: November 12, 2020

COUNSEL

D. Slessor — counsel for the Crown

S. Samet — counsel for B.L.

PUBLICATION RESTRICTION NOTICE

A non-publication order in this proceeding has been issued pursuant to s.486.4(1) of the Criminal Code. By order of this court, any information that could identify the Applicant (B.L.) and the complainant (Z.R.) shall not be published in any document, broadcast or transmitted.

REASONS FOR JUDGMENT

F. Javed J.:

I. INTRODUCTION

[1] Overview

B.L. was tried on a ten-count information alleging various crimes of violence against his domestic ex-partner, Z.R. She claims that over the course of a relationship spanning from October 2017 to February 2018, she was in a controlling and abusive relationship with B.L. She says B.L. intimidated her with a knife and assaulted her. She also claims on one occasion he forced sexual intercourse upon her without her consent.

The Crown proceeded by indictment on all matters and B.L. elected to have a trial in the Ontario Court of Justice.

[2] Pre-Trial Application and Procedural History

The trial commenced with a pre-trial application launched by the defence seeking a ruling about whether electronic messages in possession of B.L. were "records" as defined by s.278.1 of the Criminal Code, which required an evidentiary hearing under s.278.92 or 278.94 of the Criminal Code. I delivered a bottom-line oral ruling followed with a written ruling which was delivered to the parties prior to the commencement of the trial in which I ruled that the electronic messages were not records that attracted a privacy interest on the part of Z.R. and therefore an evidentiary hearing was not required. The ruling was provisionally made subject to claims of relevance and objections to admissibility on other bases, if any.

Evidence was heard on February 11, 12 and 13, 2020. The Crown called Z.R. who testified in the courtroom without CCTV. After completing her examination-in-chief, the Crown sought leave to amend count 8 on the information to conform to her evidence as she claims the time frame of that specific allegation was December 25, 2017 to February 9, 2018. This amendment was made on consent.

Prior to Z.R.'s cross-examination, the parties agreed to call an out of town Crown witness (G.J.) to accommodate him as he was confined to a wheelchair. After confirming with the parties that doing so would not trigger the rule Browne v. Dunn (1893), 6 R. 67 (H.L.) and R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, I permitted Mr. J. to testify out of order. On February 13, Z.R.'s cross-examination was completed.

With the original trial estimate extinguished, the parties selected a continuation date of July 31, 2020. However, in March 2020, the courts shuttered due to the COVID-19 pandemic. Prior to resuming in July 2020, the defence brought a successful adjournment motion which was granted by a judicial colleague given the court's conflicting schedule. The matter was adjourned to October 7, 2020. In the interim, the court communicated with the parties by email to ascertain if additional trial time would be needed to complete the matter, mindful of the courts obligation to move the case forward efficiently. As part of my case management duties, the court ordered transcripts of the evidence. This was done to assist the parties in refreshing the evidence which had been delayed due to the COVID-19 pandemic.

On October 7, 2020, the trial resumed with B.L.'s evidence. The defence also called his mother, J.L. ("Ms. L.") whose evidence attempted to undermine the credibility and reliability of Z.R. including offering evidence that would have made some of the allegations improbable.

The matter was adjourned to October 14, 2020 for final submissions. During submissions, the Crown invited the court to dismiss count 3 which was formally dismissed. The dismissal means the court doesn't have to adjudicate guilt but the evidence with respect to count 3 remains available for the court to consider on issues of credibility and reliability. This was a difficult case. The issues in this case turn on an assessment of credibility and reliability. B.L. denied all the assaultive conduct alleged by Z.R. While his mother J.L. was never present for the alleged conduct, she testified in a manner that would suggest Z.R.'s account was not probable. She offered direct evidence with respect to Z.R.'s post-event demeanor and lack of injuries. I must determine if B.L.'s denials in the context of the evidence as a whole leave the court with a reasonable doubt about his guilt. There is no issue about the elements of the offences, which means if the court rejects the evidence of B.L. or is not left in doubt, the offences would have been proven. The case rises and falls on a credibility assessment and to a large degree on reliability. First, some legal principles that must guide my analysis.

II. LEGAL FRAMEWORK

(A) Reasonable Doubt & Burden of Proof

The Crown must discharge its burden of proving the offences beyond a reasonable doubt. This is a heavy burden. Reasonable doubt is a matter of common sense and human experience and must be grounded in the evidence. As a standard, it does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. Ultimately, in order to convict B.L. of any offence, I must be sure he committed the offence. If I am not sure, I must acquit.

There was no onus on B.L. to prove his innocence. The presumption of innocence means the burden remains with the Crown to prove his guilt beyond a reasonable doubt. In cases involving credibility assessments, the law requires that I apply the three-part test set out in W.D. v. The Queen, [1991] 1 S.C.R. 742 ("W.D."). B.L. chose to testify in this case. In simple terms, the W.D. doctrine requires me to resolve three questions:

1. Do I believe B.L.'s denials? If so, I must find him not guilty;

2. Even if I don't believe him, does his evidence when viewed as a whole leave me with reasonable doubt? If so, I must find him not guilty; and

3. Even if I reject B.L.'s evidence, based on the evidence, which I do accept, has the Crown proven its case beyond a reasonable doubt? If so, I must find him guilty.

(B) Domestic Relationships Context

Criminal trials involving allegations of assaultive conduct perpetrated by an accused on a domestic complainant can become challenging for courts because of the nature of the evidence that is adduced. It is not uncommon that in domestic contexts, an accused can be charged with various criminal acts allegedly committed over the life span of the relationship on the same information. Often, but not always, there is a triggering event which prompts a complainant to report the matter to the police which is met with the standard question by an investigator along the lines of 'is there anything else that you would like to report?'. Sometimes, this leads a complainant to allege other conduct outside the event that brought the complainant into the police station. This case was no different. Z.R. went to the police in February 2018 after what she alleges occurred between them in B.L.'s garage which was the triggering event ending their relationship. Specifically, she alleges B.L. burned her with a cigarette, assaulted her and brandished a knife in intimidating circumstances. These allegations make up counts 9 to 11 on the information which I will refer to as "the garage incident". She also alleged other criminal conduct which I have broken down into discrete incidents:

• (i) An incident when B.L. struck her resulting in her nose-ring being dislodged (December 1-15, 2017) [count 2];

• (ii) An incident involving B.L. stepping on her throat (January 1-31, 2018) [counts 4, 5];

• (iii) An incident involving non-consensual sexual intercourse (on or about January 28, 2018) [count 6];

• (iv) An incident involving B.L. throwing a cell-phone at her (December 1-15, 2017) [count 7]; and

• (v) An incident(s) involving B.L. possessing a knife for a dangerous purpose (December 25, 2017 to February 9, 2018) [count 8]. This last count was not particularized as specific conduct as Z.R. described a few incidents alleging B.L. kept a knife in his room and brandished it while tracing it on her stomach threatening to "cut out" a baby, on a different occasion tracing it on her vagina and on a different occasion placing a knife in her mouth.

It is not uncommon for a court to try domestic allegations together, which sometimes includes receiving evidence of other uncharged discreditable conduct to provide a coherent narrative. While discreditable conduct of an accused is presumptively inadmissible the Court of Appeal's decision in R. v. D.S.F., [1999] O.J. No. 688 is instructive on how courts should use this evidence if proffered. At paragraph 20, O'Connor J.A. held: "In cases involving allegations of physical and sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred". This case was no different in this respect because Z.R. alleged other assaultive and criminal conduct which does not form part of the allegations. The court was not met with objections with respect to admissibility including having to consider a cost benefit analysis based on prejudice. I have guarded against improper propensity reasoning and only used the evidence for proper purposes.

(C) Assessing Credibility and Reliability

A criminal trial which involves resolving a credibility dispute is notoriously difficult for a trier of fact especially in a two-witness case. As a matter of law, a court is entitled to accept some, all or none of a witness's testimony: R. v. Marin-Ariza, 2012 ONCA 385 at para. 18. A trier of fact must scrutinize the witness' evidence using a common-sense approach that is not tainted by myth, stereotype or assumption: R. v. Cepic, 2019 ONCA 541 at para. 2; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2.

There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness' evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favorable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying.

A court can also evaluate credibility based on the impression of a witness. One's demeanor while testifying can assist in evaluating credibility but it must not be given prominence in resolving a credibility dispute as it can easily be masked: R. v. J.A.A. 2011 SCC 17, [2011] 1 S.C.R. 628 at para. 14; R. v. Hemsworth, 2016 ONCA 85 at para. 45. Likewise, post-event demeanour or emotional state evidence is admissible and may be used to support a complainant's evidence of a crime: Murphy and Butt v. The Queen, 2 S.C.R. 603 at 617; R. v. Boss, 46 C.C.C. (3d) 523; R. v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9; R. v. Clark, [1995] O.J. No. 4036 (C.A.) at para. 7. For similar reasons, this kind of evidence must also be assessed with caution.

Further, the law creates a distinction between credibility and reliability. Credibility relates to the honesty of the witness' testimony. Reliability relates to the accuracy of the witness' testimony which engages a consideration of the witness' ability to accurately observe, recall and recount an event: R. v. H.C., 2009 ONCA 56, at para. 41. At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. A witness whose evidence about some factual matter is not credible cannot be relied on to establish that fact. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 526.

III. POSITIONS OF THE PARTIES

Ms. Samet in her written submissions argues the court can't confidently ground any convictions in the evidence of Z.R. because she was wholly incredible and unreliable. Ms. Samet argues her evidence suffers from several inconsistencies, both external and internal and when assessed from a permissible common-sense point of view, defies human experience and logic. Ms. Samet also argues the evidence of Z.R. is fraught with considerable and insurmountable reliability concerns and her memory can't be trusted by the court to ground any safe convictions. With respect to inconsistencies, the law provides that inconsistencies on minor matters of detail are to be expected and don't generally affect the credibility of the witness. However, where the inconsistency involves a material matter in which an honest witness is unlikely to be mistaken, the inconsistency "can demonstrate a carelessness with the truth": R. v. M.G., [1994] O.J. No. 2086 (C.A.) at para. 23. In R. v. Stewart (1994), 18 O.R. (3d) 509 at 519-520, Finlayson J.A. instructed that the trial judge should look at the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue. Ms. Samet anchors her credibility submissions on what she says are fatal gaps in Z.R.'s recollection, which together, makes reliability the paramount consideration: R. v. Norman (1993), 16 OR 295 (Ont. C.A.) at para. 47. She invites the court to enter acquittals on all counts either because of a reasonable doubt from B.L.'s denials or when considering the evidence of Z.R. as a whole.

Mr. Slessor on behalf of the Crown argues B.L.'s evidence should be rejected and is not capable of raising a reasonable doubt. Mr. Slessor also points to inconsistencies in his account, both internal and external as it relates to the evidence of his mother, Ms. L. Further, he argues B.L.'s explanations about his "incriminating" text messages exchanged with Z.R. when she was at the police should be rejected because they are tantamount to an admission of criminal conduct. Overall, he fairly admits there are problems in the evidence of Z.R. but says they are immaterial and should not cause the court to lose faith in her account. He says B.L. should be convicted of all counts.

Before I turn to my credibility and reliability evaluation, I will first provide a factual background for context. I may deviate from the order of counts in the information to accord with a coherent and chronological timeline to give effect to the arguments of the parties.

IV. FACTUAL BACKGROUND

The Background and Relationship

Z.R. and B.L. ("the parties") are a young couple who met on an internet dating application called "Hot or Not" on June 26, 2017. B.L. was 24 years old at the time of testifying and has no criminal record. They discovered they lived in close proximity to each other. Z.R. was working part-time at Wal-Mart in the photo lab as well at Goodlife Fitness while B.L. was working as a drywaller with his stepfather. B.L. testified during the time the parties were together he was working 5 days a week and worked full-time. Z.R. was living in a basement apartment with her ex-boyfriend while B.L. was living in his parent's home.

The parties began to date, and the relationship blossomed into an "exclusive" relationship in the fall of 2017. While dating, they would see each other in person and would communicate via text messaging and other social media platforms including Facebook Messenger. As noted earlier, Ms. Samet sought a ruling in advance of the trial seeking directions about some electronic messages in B.L.'s possession and whether they attracted a reasonable expectation of privacy on behalf of Z.R. necessitating an application under s.287.93 of the Criminal Code. She helpfully catalogued the proposed messages in bundles "A" to "K". I ruled they did not attract a privacy interest and did not require a formal application. The parties agreed the electronic evidence was admissible pursuant to the statutory framework in ss. 31.1 to 31.8 of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA"). As such, screen shots of the messages exchanged between the parties became exhibits 1 and 2 on the trial. Counsel conceded they met the admissibility hurdles in the CEA and were authenticated by both witnesses. Both parties waived the requirement of a voir dire. They were used to test the evidence of both parties.

Z.R. testified she met B.L.'s parents, Ms. J. and his stepfather in the fall of 2017. She had a good relationship with both parents which persisted even after B.L. was charged when she returned to their residence to retrieve her belongings. Ms. L testified she harbors no ill will towards Z.R.

The Pregnancy & Abortion

In October 2017, Z.R. discovered she was pregnant with B.L.'s baby. She notified B.L. by text message and testified she wanted to keep the baby, but B.L. told her he "would kill himself" if she did. She testified B.L. was not supportive of her decision and expressed this to her on several occasions. According to Z.R., B.L. had several mental health issues, something she briefly shared with his mother as well. B.L. acknowledged he had mental health issues but testified he was supportive of her decision to abort the baby.

On October 20, 2017, Z.R. had an abortion. On the weekend of the abortion, she stayed at B.L.'s parent's home. She testified she wanted to move out on the Sunday but didn't because B.L. forced her to stay. B.L. added that Z.R. was "sad a lot" because of the abortion and he was helping her work through it as she had her own mental health issues. He testified Z.R. confided in him that her mother had her committed to the Center for Addiction and Mental Health (CAMH) which in her words was "scary". This scared him as well because he too had mental health issues and worried he might end up there. They mutually decided to work on their relationship.

The Aftermath: B.L. Becomes Controlling

After the abortion, Z.R. moved in with B.L. at his parent's home and shared a bedroom with him. At some point, she was given a key to the L household which she continued to have right up until the date B.L. was charged with criminal offences. B.L. resided in a two-storey home with a garage. B.L.'s room was upstairs on one side of the house, while his parent's room was on the other side, 10 feet away. The parties bought a gecko as their pet. Exhibit 9 is a diagram of the room drawn by Z.R.

Z.R. testified after the abortion, the relationship began to sour. In particular, she said B.L. became jealous and controlling. She explained when she first moved in and was still working at Goodlife Fitness, B.L. got upset at her when she made an innocent comment about a person's "yoga butt". B.L. forbade her from picking up shifts at Goodlife, so she mainly worked at Wal-Mart in the photo lab. Ultimately, the Crown called a Wal-Mart colleague (G.J.) to testify about her conduct and purported observations of injuries after one of the incidents.

She explained another incident when she went shopping with a male friend, Z. B.L. found out about this and told her she couldn't shop with him anymore. He also prohibited her from seeing her friend K, whom he did not like because she had dated a friend of his, B.J. who had moved into his home in October 2017. Despite B.L.'s controlling ways, she remained in the relationship. B.L. denied being jealous or controlling. In fact, he said it was Z.R. who would get jealous of him talking to other girls. He explained in December 2017, the relationship was rocky because of the abortion, their mental health issues and the lack of time they were spending together because of his long work hours which would keep him out of the house. He confessed to infidelity.

The Triggering Event

On February 9, 2018, Z.R. moved out of B.L.'s residence after she learned he cheated on her. She went to her friend's K's house and testified B.L. forced her to come back to his home by repeatedly calling her. She testified he sent her a message with a picture of his arm which had been cut, stating he was going to hurt himself. As a result, she returned to his home where the parties had an interaction in the garage.

The parties presented diametrically opposed versions of what happened during the garage incident. Z.R. alleges the parties began to talk about their failed relationship in his garage which accelerated into a physical altercation with B.L. arming himself with a knife and pointing it at her while she was on the ground and burning her face with a cigarette, in addition to other violent conduct.

B.L. acknowledges there was an interaction in the garage but says it was limited to a verbal conversation with the parties talking at length about their failed relationship. He says his mother entered the garage on two occasions during the interaction. Ms. L. testified she didn't see anything consistent with a physical altercation and didn't see any purported injuries on Z.R. According to her, the parties appeared to be talking and nothing more.

After the garage incident, Z.R. did not leave and instead went inside the residence where the parties continued to argue in the bathroom. She stayed overnight in B.L.'s bedroom. Two days later, she attended at a police station after speaking with a friend. She explained she was hoping to get a restraining order against B.L. but was "a mess" and instead was told by a police officer to reduce to writing her grievances with B.L. She agreed. There's no evidence of a restraining order being secured. She went home and began drafting an email about B.L.'s alleged criminal conduct and on February 11, 2018 and attended at the police station and met with Detective Constable Otterbein of the DRPS and provided a videotaped statement where she provided details of the allegations on the information. In cross-examination, she denied fabricating the allegations because she was upset that B.L. had cheated on her.

While at the police station, she testified B.L. kept sending her text messages. Exhibits 1 and 2 are screen shots of the text messages which reveals a one-way conversation for approximately 2 hours with B.L. apologizing profusely and begging her. The tenor of the messages reveals a desperate person begging for Z.R. to respond to his repeated messages. She never does. As a preview, B.L. pleads with her that "he will get help" and "don't do this to my family". B.L. explained these messages were not admissions of criminal conduct but rather related to his belief that Z.R. might try to have him involuntarily formed under the Mental Health Act. He testified Z.R. knew he had mental health issues and was scared he would be institutionalized in a hospital, something the two of them had previously discussed and she had threatened to do. Mr. Slessor used the messages as fodder for cross-examination to suggest he was apologizing for the assaults during the garage incident and says this is compelling incriminating evidence. I will review that submission below.

Z.R. testified about a series of incidents, with some forming part of the criminal allegations. However, some incidents did not result in criminal charges but were lead as part of completing the narrative pursuant to the principles in D.S.F., supra. With the garage incident being the catalyst or triggering event to the police statement, I will summarize all of the incidents below in chronological order.

The Nose Ring Incident (Count 2)

Z.R. described the "first incident" [her words] involving losing her nose-ring during an assault in B.L.'s bedroom. Ms. Samet argues Z.R. was completely unreliable about this event including not being sure as to when it occurred. Z.R. testified on or about January 13, 2018, thus after the abortion when B.L. was jealous and controlling, she was supposed to attend a male friend's birthday party. She was laying down on B.L.'s bed and B.L. was standing at the side of the bed. He took her cellphone and began to scroll through it. He got upset at her and backhanded her in the face knocking her nose-ring loose. He proceeded to get on the bed and began to push and pull her hair. She was able to crawl to the edge of the bed and secured her nose-ring and placed it on a white side table. In cross-examination, Z.R. admitted she told the police this incident occurred on November 17, 2017 but later changed her position after speaking with G.J. and her friend A, the girlfriend of C, the friend celebrating the birthday.

B.L. denies backhanding Z.R. at any point. Indeed, he took the position he was never home alone with Z.R. from December 2018 to February 2018 and his mother was always home. He testified he never assaulted Z.R. – ever.

The Throat Incident (Counts 4, 5)

Z.R. described a second incident involving B.L. placing his foot on her throat. In examination-in-chief, she was unsure about the date of this allegation. She testified the parties were laying down on his bed when B.L. pulled her over his body and threw her on the hardwood floor. He got up and proceeded to step on her throat with his barefoot while pulling her arms upwards. While doing this he uttered: "Today you die". In response, she began to stab her fingernails in his leg to pull his leg off her throat. B.L. told her to get up, but she couldn't as she was dizzy. In cross-examination, Z.R. admitted she told the police B.L. "picked me up and carried me and I landed on the floor". She explained she meant to say B.L. lifted her with his arms, not the literal meaning of carrying her off the bed. She stated her neck was sore, she had trouble swallowing and didn't take any photographs or report any injuries.

B.L. categorically denied this event, testifying it would be impossible for him to do so as the walls in his home are thin and the floor is creaky. He added sound travels very well in his home and any semblance of noise would be heard in the whole house and his dog would "go crazy". Ms. L. supported this evidence.

The Knife to the Pelvic Area

Z.R. described a third incident where B.L. used a knife and applied it to her pelvic area. She testified she was laying topless in B.L.'s bed when B.L. got on top of her and began to trace a knife on her bare skin. She explained B.L. used to hide a knife in between the cushions of a small couch in his room. When he reached the area of her pelvis, he began to apply a little pressure and said "We can cut it out of you" or something to that effect. She believed B.L. was hoping to get her pregnant again as he wanted to have a baby with her. In cross-examination, Z.R. added that B.L. brought this knife into his bedroom after his friend B.J. began to stay with them in early November 2017 and it was the same knife he would later use on her vagina during a different incident.

B.L. denied this incident, stating he didn't keep a knife in his room, let alone his couch. Again, he added his mother was always home when they were home.

The Unwanted Sexual Intercourse (Count 6)

Z.R. testified about an event sometime in January 2018 when B.L. had non-consensual sexual intercourse with her. In examination-in-chief, Z.R. was fuzzy about a lot of these details but offered the following. She explained they were laying down on his bed and B.L. asked her for sex. She told him No, as she was tired. She was facing the wall and B.L. was behind her. B.L. proceeded to slide off her underwear and tried to have vaginal intercourse from the rear by placing his hands on her thighs and prying her legs apart. She kept repeating "No" but he refused. She began to resist by struggling. This action resulted in some noise, so he ordered her to the ground. He stood up but she refused to get up. As a result, he pulled her off the bed by her ankles. She ended up on the ground and on her knees. She testified B.L. began to penetrate her vagina with his penis from behind. She explained she was trying to push him off but couldn't. After the intercourse, B.L. asked for a blowjob and raised his hand stating: "Don't use teeth". She didn't want to give him oral sex but obliged out of fear and began to perform oral sex. B.L. issued an ultimatum, stating "swallow or in you" or "in your mouth or your pussy" or words to that effect. B.L. continued with sexual intercourse and before he could ejaculate, she was able to push him off. In cross-examination, Z.R. admitted she never told the police B.L. issued an ultimatum during the incident.

B.L. denied having unwanted sexual intercourse with Z.R. during this occasion. He repeated his evidence that his home has thin walls, his mother was always home, and he had no area rugs in his room and Z.R.'s complaint would have caused considerable noise. In particular, he said January 28th was a happy not violent occasion.

The Ripped T-Shirt

Z.R. testified about another incident involving violence which is uncharged conduct. She explained she was wearing a favorite t-shirt of a music band (System of a Down) when the parties began to argue in B.L.'s room. She was sitting on the floor of the bedroom while B.L. was sitting on a chair. He became angry and began to pull at the neck of her shirt while also pulling her. The resulted in the t-shirt tearing in three areas. She took off the ripped t-shirt and B.L. forced her to throw it in the garbage. She obliged but without telling him, moved it to the laundry hamper. In cross-examination, Z.R. confirmed while she told the police this incident occurred on January 13, 2018, she remains unsure and could not recall when it occurred. Further, she admitted she was unsure if B.L. was standing or sitting during the pulling and pushing.

B.L. denied ripping Z.R.'s t-shirt. He confirmed she owned a t-shirt of this variety and wore it, but he last saw it in January 2018, and it was whole. He never saw it in a torn state in his home and would have known if it was torn because his mother does their laundry. Ms. L. supported this evidence.

The Incident Involving Tracing Z.R.'s Vagina with a Knife

Z.R. described another incident on January 28, 2018 when the parties were laying on B.L.'s bed. She testified they were naked when B.L. made her bend over and began to trace a knife that he kept in his bedroom around the opening of her vagina. While doing so, he uttered: "If I can't have you, no one else can". In cross-examination, Z.R. admitted she couldn't recall when this event took place and was fuzzy on some details. She acknowledged not telling the police about this "significant" event. She explained: "I was a mess when I went in there" and "I wanted to get out of there" implying the police station.

B.L. categorically denied this incident as well repeating his evidence that he was never alone in the house with Z.R. He testified he didn't take any time away from work in January to February 2018. He offered a counter narrative testifying that Z.R. was taking night classes and was scheduled to start school on January 29th. That same day, she had dinner with his whole family and they had a quiet and "happy" night. Prior to going to school, Z.R. left a note for him on his desk stating: "I can't wait to see you". This was tendered as Exhibit 8 and found by Ms. L. during her cleaning.

The Incident Involving Placing a Knife in Z.R.'s Mouth

Further, Z.R. testified there was another incident involving a knife. She explained sometime between December 2017 and February 2018, B.L. placed a knife in her mouth and asked if she was going to be a good girl. He began to pet her hair and smiled at her. She agreed to be a good girl as she was afraid. In cross-examination, she explained her mouth was partially open and she felt the knife in the back of her mouth but was not sure if it touched her throat. She acknowledged telling the police the knife was "inside" her throat but said she meant inside of her mouth.

B.L. categorically denied this incident as he didn't keep a knife in his room.

Z.R.'s Injuries

Z.R. testified B.L. would "often" apply force to her neck in order to have her listen to him. She could not recall the frequency but said her neck was often suffering from discomfort. Further, her eyes would be "darker" from being struck with his backhands. She would try to conceal the facial injuries. She added she took pictures of her injuries but B.L. deleted them.

B.L. testified he never caused any injuries to Z.R. He added that Z.R. always had dark bags under her eyes because she always slept in for work. Her nose was never cut and never looked crooked as she maintains. Indeed, he testified his parents would often see Z.R. as she lived in the house for months and his mother would have been able to observe any injuries. He explained on one occasion, his mother and Z.R. got a facemask which involved placing product on their faces. Nobody saw injuries.

The Garage Incident (Counts 9-11)

Z.R. explained in great detail what she said transpired in the garage on February 9, 2018 after she decided to leave his residence after finding out he was cheating on her. She explained B.L. begged her to return and she obliged. She drove to his residence and parked on the driveway. He tried to open her driver's side door but she locked it. He quickly moved to the passenger side door and tried to enter but she was able to exit. She said he reached into the car and took her phone, keys and cigarettes.

B.L. appeared angry and went into the garage. She followed because he had her personal items. B.L. closed the garage door and turned off the interior garage lights. She said the garage was dimly lit with natural lighting coming from the garage door windows. B.L. still had her cellphone and began to scroll through it which was the norm. She had a newer model iPhone while his was older. She explained B.L. would often use her phone to search the internet and she believed, review her text messages which she didn't delete.

B.L. increasingly got angry and demanded why she left him. This sparked a verbal altercation. B.L. moved to the back of the garage and lit a cigarette. He proceeded to grab her hair and burned the left side of her face, under her lip and then again on her forehead above the eyebrow. She testified this left burns left marks on her face which were photographed by the police two days later, on February 11th. The Crown tendered these as Exhibit 1: 1-11.

After the burning, B.L. pulled her head towards his knee and pushed her down to the ground. She ended up on the floor of the garage which was very cold given the time of year. In cross-examination, Z.R. admitted she told the police "he kneed me in the face" but in the courtroom she said his knee didn't make contact with her face. This incident did not cause any injuries.

Further, B.L. proceeded to sit on top her of stomach while she was laying on the ground and began to scroll through her phone which was still in his possession. While doing so, he grabbed a knife from a work bench which was nearby and began to make stabbing motions. She stated that as he got angrier, he brought the knife lower towards her stomach gesturing he would strike her, but never did. She was able to grab the knife to prevent any striking. In cross-examination, Z.R. was challenged on her evidence and admitted she told the police B.L. got a knife during the garage incident from a couch, not a work bench. Further, she admitted leaving out that B.L. was making "stabbing" motions with the knife and going "lower and lower". In re-examination, she said the police never asked what if anything, B.L. was doing with the knife.

Z.R. explained B.L. was referencing messages on her phone that she had exchanged with his friend B.J. and her friend K whom B.L. didn't like. B.L. had previously prohibited her from speaking with K. She stated while in the garage, B.L. sent a text message to another friend, J, pretending to be Z.R. threatening to "gut him" as he was getting angry. In cross-examination, she admitted not telling the police these additional details.

At some point, B.L. got off her stomach and she was able to get off the garage floor and began to lean against a wooden plywood box. B.L. continued to read messages on her phone and then proceeded to "backhand" her in an upwards fashion striking her nose and lip resulting in her head hitting a plywood box. She said the backhand hurt but did not cause a visible injury. She could not recall if B.L. was still holding a knife. In cross-examination, Z.R. said she didn't know if she suffered any injuries to her head or scalp even though it hurt. She didn't point this out to the police two days later when they took photographs of her lip and forehead: Exhibit 1.

Z.R. testified B.L. continued to waive the knife in the garage and began to make stabbing motions. She was wearing sweatpants and he proceeded to slice her sweatpants near the knees. The knife did not make contact with her skin. She attempted to grab the knife, but he pulled back. She said the stabbing motion left her pants frayed with holes in them from the knife. In cross-examination, Z.R. confirmed she suffered no injuries to her hand despite grabbing the knife. She admitted she never told the police she tried to grab the knife. Further, she took photographs of the sweatpants and didn't give the sweatpants or the photographs to the police during her statement. In fact, she didn't produce either until a preparation meeting with a Crown Attorney some 18 months later before B.L.'s trial. After this meeting, she was directed to take the items to the police which she did: Exhibits 4, 5. Ms. Samet complains about the timing of these photographs. In re-examination, Z.R. said the police never asked her for the sweatpants during her statement.

Z.R. testified after her pants were cut, both parties heard noises coming from inside the house as they were still in the garage. She thought about screaming for help from his parents, but B.L. told her "she would be dead before they come out" or something to that effect. As a result, she got scared and remained on the floor, quiet. B.L. still had the knife in his hands.

Eventually, B.L. used the knife to stab a vertical wooden support beam that was in the middle of the garage. She said this action resulted in him injuring his pinky finger which began to bleed. She began to apologize and was begging for him to stop but he continued yelling about her leaving him. At some point, he began to hyperventilate. She said her nose began to run so B.L. ripped a piece of his shirt that he was wearing and gave it to her. She explained he was wearing a long sleeve shirt with a tank top underneath. In cross-examination, she disagreed he was wearing a Roots Canada t-shirt depicted in Exhibits B1 and B2. She added B.L. also broke a chair but admitted she did not give this evidence in-chief. Further, the defence tendered photographs of the garage which were taken by J.L later, as Exhibits 15-21. Z.R. denied the suggestion put to her that the state of the garage in Exhibits 15-21 was the same as the date when she was allegedly assaulted by B.L.

Z.R. testified she was able to get off the cold floor and sat on a storage bin in the back of the garage. This conflicted with her evidence in cross-examination in which she maintained she remained on the ground and didn't know if B.L. pushed her down. At some point, B.L.'s mother opened the garage door and asked B.L. "Where is Z?". She responded: "Hi I'm over here". B.L. yelled at her to go back inside and she obliged. She left the garage light on, but B.L. shut it off. In cross-examination, Z.R. admitted she didn't ask his mother for help at this point even though she had an opportunity to do so. She agreed the burn marks on her face would have still been visible at this point. Z.R. added his mother returned to the garage a second time and threw a pack of cigarettes on the floor as the parties were not allowed to smoke inside the house.

Z.R. said the verbal argument in the garage continued. While B.L. was going through her phone, she accused him of being gay as was speaking to an unknown male on Facebook. She said this made B.L. angry and he proceeded to send threatening text messages to her friends, K and B.J. pretending to be her. Eventually, the argument ended with them agreeing to go inside. They also agreed to visit K and B.J. up north in Carnarvon.

Z.R. testified the parties proceeded upstairs to B.L.'s room. She could not recall if she saw or interacted with B.L.'s mother. She stated she "convinced" him that she needed to use the bathroom before they left, and he obliged. She explained that earlier in the day when she found out by his infidelity, she got angry and "trashed" his bedroom by spilling water from a bong on a stuffed animal of his, which she threw in the garbage: Exhibits 6, 7. She also left him a note stating: "Fuck you". She took the stuffed animal into the washroom hoping to clean it. B.L. discovered his room got trashed and got upset. He followed her into the bathroom. She stated the parties stayed in the bathroom all night and didn't make it to Carnarvon but did go to a gas station for smokes.

B.L. provided a very different account of the interaction in the garage. To some extent, his evidence was supported by his mother on some issues. I will review her evidence in greater detail when discussing my findings, but to offer a contrasting view, B.L. testified after he came home from work on February 9, he saw that his room had been "trashed" with drawers pulled out, clothes strewn everywhere and a note left which said "Fuck you, I know you did it". He proceeded to call Z.R. on her cellphone. He learned she was at her friend K.'s house and she was instantly "mean" to him. He asked her to come back home so they can talk. She agreed. He saw her pull into the driveway and went outside. Z.R. was still upset stating "don't fucking touch me or I'll drive through the house". Worried about their safety, he took her car keys and they went into the garage.

B.L. testified while in the garage, he closed the garage door because it was cold outside. He did not dim the lights. Z.R. sat on a blue recycling bin underneath the landing. Z.R. began to accuse him of cheating on her because other girls were messaging him. He said they began to talk about their relationship to "resolve things". While speaking, his mother opened the interior door to the garage and took out the recycling and dumped it. She spoke briefly with them, including Z.R. and asked if they wanted to come inside. They responded they were still talking so she left.

After his mother left, they continued to talk. B.L. denied accusing her of cheating and taking her phone. He didn't raise his voice and instead they continued to talk and he apologized for cheating on her, stating he was stressed out because his uncle passed away. His mother returned to the garage and this time threw a pack of cigarettes into the garage. B.L. told her to go back inside and she obliged. They continued to talk but that's it. He denied assaulting or threatening her with a knife. He denied being armed with a knife or stabbing a wooden beam. He also denied cutting her pants or even being cut himself. He also denied ripping his t-shirt to give to Z.R. as she maintains because he was wearing a long sleeve Roots shirt, not an undershirt. His mother took a photograph of the shirt he was wearing: Exhibits 12, 13. He said the parties went inside and fixed a snack in the kitchen. They spoke to his mom in the living room and went upstairs. Z.R. apologized to him for trashing his room. They both cleaned the room and took the garbage out. Ultimately, the night ended with them going out to buy gas and smokes.

B.L. testified the following day (February 10th), it was a Saturday and he was not working. He was home with Z.R. Earlier in the day he ran some errands but otherwise it was a lazy uneventful day. He explained this was the day that his mother offered to do a clay mask with Z.R. Nobody saw any injuries on her face during the masking.

The Cellphone Incident (Count 7)

Finally, Z.R. testified about a final incident involving B.L. throwing a cellphone at her. In the timeline, she said this incident occurred after the garage incident even though the information alleges it occurred between January 29 and February 9, 2019. She explained the two were in his bedroom when B.L. took her iPhone 6Plus and began to search the internet for a diagnosis for his anger. He told her he believed he had a borderline personality disorder and wanted her help. She refused which made him angry. As a result, he threw her iPhone at her hitting her torso stating: "You're a horrible person". In cross-examination, Z.R. admitted she didn't tell the police about this incident in her email statement to the police. B.L. denied throwing a cellphone at Z.R.

Z.R. Attends at the Police Station

On February 11th, the parties woke up and B.L. helped clear the snow off her car as she was getting ready to go to work. He learned Z.R. was crying in her car and "not feeling good". He learned she deliberately hurt herself at work and was not okay. He later learned she was going to the police station, but he thought it was because she was angry at him for cheating on her and she was going to have him committed to a mental health institution. He "freaked out" and began to incessantly text her because he didn't know what was going on.

Z.R. also testified the relationship with B.L. was not always assaultive and was sometimes "good". While she wanted to leave, she wasn't permitted because B.L. wouldn't let her. After the alleged violence, she continued to stay with B.L. because he threatened to harm himself and she was scared he would follow through.

Z.R.'s Contact with B.L. After His Arrest

After B.L. was charged with criminal offences, Z.R. continued to contact him over Snapchat because she learned he was trying to take screen shots of their conversation and she tried to delete the conversations. Further, she admitted dropping off a letter to his house believing it would not be an issue as he would read it at some point. She admitted she wrote "I know you never meant to hurt anyone". She acknowledged knowing she wasn't allowed to communicate with him given his bail conditions.

Z.R. testified after she went to the police, she discovered that the contents of her cellphone had been wiped. She believed this was done by B.L. because he had access to her account. B.L. admitted wiping her phone but said he did it because he was logged in to several personal accounts on her phone including his banking accounts and was concerned she would pretend to be him to get back to him for cheating on her.

V. FINDINGS AND ANALYSIS

Assessment of B.L.'s Evidence

Ms. Samet argues B.L.'s denials of criminal conduct, both charged and uncharged as alleged by Z.R. is credible especially when viewed in context of the evidence of his mother. She argued the evidence of Ms. L was free of any taint or bias and provides some objective proof that rebuts the account of Z.R. on material issues including her purported fear while living in their home, whether B.L. kept a knife in his room as she was involved in cleaning it, the improbability or implausibility of violent acts in his bedroom when she was always home and her account of the events in the garage when on the account of both of them, she walked in to the garage on two occasions. The law requires a trier of fact to test the credibility and reliability of the account against when and where it took place to determine if it was implausible: R. v. R.H.A, [2000] OJ No. 2610 (C.A.). With respect to B.L.'s desperate text messages, Ms. Samet says any admissions are vague in their content. There is no smoking gun admitting criminal conduct, and at their highest, he admitted to causing issues in their failed relationship. They do not support the Crown's burden of proof.

Mr. Slessor says the court should reject the account of B.L. and his mother who he said were in "lockstep" with each other on material issues. He says it is not unusual that a mother would want to protect her son and her evidence was tailored to suit this purpose. He urges me to reject her evidence as contrived. Alternatively, if the court were to accept her evidence, the evidence of B.L. and his mother are inconsistent on key points which leaves B.L. with a clear window of opportunity to commit the criminal acts which were all done in private. He urges the court to reject the hollow explanations for his desperate text messages which he says was a feeble attempt to avoid Z.R. divulging what he did to her over the course of their relationship.

I return to the legal framework which must guide my analysis with the observation that a credibility evaluation is notoriously difficult for a court to undertake where the alleged acts occur in private outside of the view of third parties. As a matter of first principles, B.L. started the trial with a clean slate. He is innocent until his guilt is proven beyond a reasonable doubt. The W.D. framework serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests: R. v. J.H.S., 2008 SCC 30 and R. v. C.L.Y., 2008 SCC 2. The W.D. framework applies to the Crown's burden of proof on all essential elements of the offences including proof of identity, date and jurisdiction.

Courts have instructed that in applying the W.D. methodology, courts have to keep in mind it applies not only to instances where the defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown's case, for example, where the Crown tenders a statement by a defendant which is in part or in whole exculpatory: R. v. B.D., 2011 ONCA 51, at para. 105. In this case, I have to carefully assess what B.L. said in his text messages to determine if it has any exculpatory and/or inculpatory value.

Further, in considering the first two steps of the W.D. analysis, the evidence of B.L. must be considered in the context of the evidence as a whole, including the complainant's evidence. Justice DiLuca in the decision of R. v. Theriault 2020 ONSC 2825 helpfully reviewed these concepts and stated (at paras. 28-29) "the assessment is not simply whether the defendant's evidence standing alone and without context is believed or leaves a reasonable doubt: R. v. Carriere (2001), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, and R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont.C.A.). The second step of the W.D. analysis emphasizes the point that credibility assessments in a criminal case are not dichotomous. In other words, there is a third alternative between complete acceptance and complete rejection of a defendant's evidence: R. v. Edwards, 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20".

In the final analysis and perhaps to put it more simply, a court can only convict a defendant of a criminal allegation if the court is "sure" the defendant committed the criminal act. If the evidence as a whole, leaves a court unsure of this conclusion, for whatever reason(s), the law directs the accused must be found not guilty or risk a wrongful conviction. A verdict is not based on a visceral or gut feeling of a trier of fact. It must be based on a full and fair consideration of admissible evidence.

I now turn to my findings of fact and credibility evaluation.

Overall, I cannot point to any endemic factors of both Z.R. and B.L. that cause me to have a more favorable impression of either witness. Both presented as polite and emotionally fragile. This is unfortunate because it's clear mental health issues permeated their lives and in their short and fractured relationship. No doubt issues relating to abortion and infidelity would have aggravated their mental health concerns. Regardless, I have analyzed their evidence through this lens mindful that both are young and fragile. They were both imperfect witnesses. While B.L. was more evasive than Z.R., it is also because he was challenged in a probing but fair cross-examination by a skilled prosecutor in Mr. Slessor. In the end, B.L. withstood a tough cross-examination except for his evidence about the text messages which deserves closer scrutiny. Likewise, Z.R. withstood a more methodical and fair cross-examination which spanned several days which effectively exposed her vulnerability as an unreliable witness. There is no doubt Z.R. has difficulty recalling things. This may explain why Ms. Samet focused almost exclusively on her weaknesses as opposed to the strengths of her client's denials. Their weakness may be attributed to mental health issues, but I simply don't know. My task is to critically assess their evidence to determine if it assists the Crown in meeting their heavy burden of proof.

In view of the W.D. framework, I propose to analyze the evidence of B.L. first. If I believe his denials or am left in reasonable doubt by them, I must find him not guilty. As noted above, B.L. denied any criminal conduct taking the position Z.R.'s allegations are false, fueled by her mental health issues and jealousy. Of course, there is no legal onus on him to prove a motive on her part to lie. The burden remains on the Crown to prove he committed the alleged acts.

Findings on B.L.'s Evidence

After considering the evidence as a whole, I have arrived at the following findings with respect to B.L.'s evidence.

First, I reject his evidence he was not controlling or jealous towards Z.R. In my view, he clearly was but at the same time, I cannot rule out that Z.R. wasn't equally jealous but less controlling. Context is important. This was a young and fragile couple. There is one glaring example of B.L.'s jealousy. Z.R. testified he disliked her good friend K. He denied disliking her but in a text to Z.R. he wrote in clear terms "I fucking hate K." When Z.R. asked why, he wrote "we'll talk about it tonight" and "but I don't think so". In cross-examination he explained this message was because he didn't want K. in his house. This explanation makes no sense. His choice of words couldn't be clearer. He was never forced to be her friend and didn't have to hate her to prevent her from coming to his house. In my view, B.L. was clearly insecure.

Second, B.L. testified he was never alone with Z.R. during the course of their relationship from November 2017 to February 2018. The import of this evidence, if true, is that it might make her account of repeated abuse less probable although not impossible. This evidence has to be considered in context with the evidence of his mother who testified she had a clear recollection of being home every evening in December to February as she's a "homebody". She would run her errands, if any, during the day and would want to be home with her husband and family when they arrived home from work in the evening. She was clear she "never" left the house in the evening. In cross-examination, she was tested on this evidence and remained firm in her position that she had a recollection of never going out during November 2017 to February 2018. She was confident in her answer because B.L. was employed with her husband who would be the only person to drive him home from work. While Ms. L withstood a tough cross-examination, there was one aspect of her account which was a bit troubling. When questioned about her memory of being home, she gave an answer that was not responsive to the question including a comment her son was never home alone with Z.R. I tend to agree with Mr. Slessor that this potentially shows some bias but after careful consideration of all her evidence, I accept her explanation that she took the question the wrong way and remained firm in her evidence as to why she was confident that she was home every night. While it is somewhat unusual for somebody to be able to know for sure if one was home, years later, it is rational if it arises from a pre-existing and defined habit of doing something, such as being home in the evening. This way, it is not unusual to the point of being incredible. In any event, I found Ms. L credible in other areas of her evidence because she did concede it was always possible her son was home alone during the day if she was out running an errand.

I found B.L. to be internally inconsistent and evasive on this point, and on the whole of the evidence, I cannot find as a fact that B.L. was never alone with Z.R. from November to February which would make the account less probable. In cross-examination, he maintained his mother never went out at night but at the same time conceded, after repeated questioning that she would have to leave the house to run errands such as shop. When asked to reconcile his evidence in-chief that she never left the house he explained he thought he was being asked if she left for long periods of time. In my view, his answers were internally inconsistent and only came around to the logical answer that of course his mother was never truly home all the time. Related to this, B.L. gave evasive and sometimes contradictory evidence about his work schedule to rebut the suggestion that he was never alone with Z.R. when his mother wouldn't be home, while running errands. First, he said he would work every day from 5-6 am to 5-6 pm but later conceded some days he wouldn't work, due for example to bad weather. Second, when the Crown pointed out to him that it would be impossible for him to know his full work schedule from December and January 2018, B.L. appeared to agree with this reasonable proposition only to later insist he still knew he was never alone with Z.R. based on her work schedule. This makes no sense and shows a deliberate effort on his part to create distance towards a window of opportunity where he would be alone with Z.R. and engage in a criminal act in private.

My finding with respect to the above simply means there were opportunities for B.L. to be in a private setting with Z.R. but this isn't conclusive proof that he did in fact commit the acts as alleged. Many, if not all of the acts alleged by Z.R. were done in private and inside the home so even if others were inside the home, it doesn't remove the evidence of opportunity. This finding takes on greater importance when I discuss the specific counts including some of the conduct in the bedroom.

Third, B.L. testified he did not keep a knife in his room nor one in the garage. On the whole of the evidence, I find as a fact that he probably didn't keep a knife in his room largely because of the evidence of his mother who was not challenged on this point. Ms. L was clear she was the person who cleaned the house including her son's bedroom. It was her habit to clean in the couch and she found many things but never a knife. She did not shy away from saying she found drugs but never a knife. This finding is not determinative because of course she could not say if her son had secreted a knife in his room at all times, but it must be assessed in the context of all the evidence.

Fourth, I have considered Mr. Slessor's argument with respect to the defendant's text messages which he says are tantamount to admissions of criminal conduct. This is a challenging submission because there is no smoking gun. B.L. never apologized for specific criminal conduct and I must assess all of his utterances, and the context in which they were sent. I am not permitted to consider just one or two. B.L. took the position he wasn't apologizing for criminal conduct but instead didn't know why she was at the police station and was scared she was going to have him involuntarily committed to a mental institution – something they had discussed in the past. In his words, he "freaked out" and sent a barrage of desperate pleas to stop her from sending police to his door who might remove him against his will in a strait jacket. This occupied a significant part of the Crown's cross-examination for good reason. I propose to review some of this evidence before I address my findings.

B.L. agreed he wiped Z.R.'s phone on the day of his arrest. He was challenged on why he did so with the Crown suggesting to him he did it because he didn't want the police to see potentially incriminating messages. B.L. explained he wiped the phone because his passwords were pre-inputted in her phone and it was easier to take this step as opposed to logging into every account and changing his password. This is not an unreasonable explanation in the context of a person who has some mental health issues. He also confirmed that Z.R. had an iPhone and the contents of her phone, absent any passwords, would be backed up to the cloud, which is also a rational response. In other words, him wiping the phone may not forever wipe the contents of her phone because the cloud would keep it, just not the log-in information.

B.L.'s text messages begin approximately at 12:14 pm and end at 2:34 pm. That is over two hours of content and not one message is inculpatory in so far as admitting committing a specific criminal act. In other words, he never uttered the words, such as 'I'm sorry for sexually assaulting you or threatening you', as examples. While I don't propose to review all the texts below, I will offer a random sampling to get a flavor of what he was trying to convey. B.L. wrote things such as:

• Please I'm begging you,
• I'll do anything, I'll get help, I'll get admitted,
• Don't do this to my family
• Please understand I'm sick and I'm going to get help
• You don't have to love me, I'm so sorry
• Why are you at the police station
• I won't do anything, I promise, I need to go to the hospital
• I lied about so much
• Mental illness isn't a thing
• I'm coming to the police station to turn myself in and face whatever I have to.

B.L. testified the tenor of his messages was directed at concern for Z.R. who he learned earlier in the day had cut herself at work. When challenged as to where he showed concern for her in the messages, he said it was in earlier messages which are not before the court. I find this explanation incredible because if that was his true concern, surely it would occupy some space, even if fleeting in two hours of texts. It does not appear anywhere. In my view, it's clear the only implication of the texts is self-worry. He was concerned about himself and only himself. He admitted being dishonest with her when he said "She [his mother] knows I'm a monster she hates me please". He explained this was in relation to his infidelity and his mental health issues but also admitted lying about speaking to his mother about both these issues. Indeed, it would appear Ms. L was in the dark about her son's mental health issues which is odd for someone who spent as much time as she did with her son.

Further, he was also asked about the following message which the Crown says is close to a smoking gun if not one:

"How could you do this to me"

"But not to your ex who tried to kill you in another country"

"I thought you loved me"

B.L. acknowledged that the above reference was in relation to an assault perpetrated on Z.R. by an ex-partner that he was aware led to no charges because Z.R. decided not to report the matter to the police. Mr. Slessor suggested his explanation that she was trying to get him committed to a hospital didn't make sense when his text was in relation to a former partner who tried to kill her, and she protected him. B.L. maintained he wrote it because of his fear of being committed. Respectfully, this makes very little sense. In my view, it is a reasonable inference that arises from all the texts that he was worried about himself, worried that she was the police station and that she was potentially treating him differently from an ex-abuser. In furtherance of this, he added he was prepared to "turn himself in" [to the police]. He said he didn't want the police to attend at his home to forcibly remove him. I have trouble accepting this because the extent of self-concern is not consistent with his purported fear. Clearly, he was worried about something. It's simply unclear what.

For my purposes, I have to be satisfied that the inference the Crown asks me to draw, namely his concern for self-preservation was rooted in protecting himself against criminal charges that he knew he committed. Determining the relevance of post-incident conduct evidence "is necessarily a case-by-case, 'fact-driven exercise'": R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108, per Martin J. (dissenting, but not on this point). In this case, B.L.'s text messages, when viewed as a whole leave room for doubt that he was apologizing for committing criminal acts especially where the texts are bundled up with repeated pleas that he will get help, references to mental health, a comment of being a "monster" and "they'll kill me". Despite my reservations of the bizarre, rambling and incredible nature of B.L.'s evidence, I have a doubt that he was confessing to crimes and instead was in the midst of a mental health episode.

I am fortified in this view based on my findings emanating from the garage incident which was proximate in time to the police attendance. In other words, the repeated pleas for help must be viewed in context of the triggering event which Z.R. says was the garage incident. The evidence establishes she was pursuing a restraining order which somehow changed into criminal conduct spanning months of alleged abuse. There is no other evidence of another intervening event before the police report which might suggest something else happened that led Z.R. to the police station with the exception of him throwing a cellphone at her which is not as serious as the garage events. The context of what happened in the garage is important context for B.L.'s text messages because it offers a window as to what was in the minds of the parties.

B.L. testified there was no criminal conduct during the garage incident as he had confessed to infidelity, Z.R. was visibly upset and the two ended up staying at his house overnight before Z.R. went to the police two days later. In addition, the garage incident is also the only incident in which the evidence of both B.L. and Z.R. can be tested against a third party, namely B.L.'s mother who was present for some aspects of it. On the evidence of both, she entered the garage on two occasions and was in a good position to assess demeanor and injuries. While she wasn't in the garage to rebut the specific claims, in my view, her evidence on key points was not impeached. My only basis to reject her evidence, if I were to, is a concern she came to court to lie on her son's behalf. I cannot arrive at that finding of fact.

B.L. denied committing any assaultive conduct in the garage. While I have some concerns about his credibility, I cannot be sure about his guilt on these counts because of a global assessment of the evidence. Without considering Z.R.'s evidence, which I will address below, I arrive at a doubt based on an acceptance of Ms. L's evidence who I found to be credible.

Ms. L testified she had a clear recollection of the events on February 9th because her mother's birthday was on February 7th. I accept her evidence she saw B.L.'s bedroom which was ransacked including a stuffed animal which was torn. This is consistent with the evidence of both B.L. and Z.R. I accept she heard B.L. open the room and ask "What the fuck" suggesting he had no idea what happened and why. The implication of the above evidence is Z.R. was clearly upset at B.L. for something. I cannot rule out B.L.'s evidence that he had admitted cheating on her and this was her response.

Further, Ms. L testified she saw her son and Z.R. in the garage because she entered twice. The first time she saw Z.R. seated which is consistent with B.L. who said she was seated on a blue recycling box and he was leaning on an old stove which was later removed from the filed photographs. She said Z.R. appeared "normal" with a winter coat, black toque, dark jogging pants. Her eyes were not swollen and she wasn't crying. This contradicts the account of Z.R. who said B.L. burnt her hair with a cigarette. She testified she "chatted" with her and walked past them. She did not say there was a sign of struggle or anything untowards. She went back inside and lit a fire and went back to the garage. She said they were standing at the same position which also contradicts the account of Z.R. She said B.L. asked her to leave, which is consistent with both accounts. Again, there's no evidence of anything unusual.

Importantly, Ms. L said she saw the parties enter the residence and saw them at the bottom of the stairs. She recalled them going out, which is consistent with B.L. who said they went out for gas and smokes. She recalled they were laughing. I accept she had a good point of observation and didn't see any injuries, no burn marks, and no torn pants. She testified B.L. was wearing a Roots shirt which she later photographed. While it's possible he was also wearing an undershirt, I find it unlikely that she wouldn't see him with a bloody finger when he entered the residence. Fundamentally, I accept Ms. L's evidence she didn't see any tears in Z.R.'s pants as she washed them (Exhibit 12), held them to dry where she would have seen a tear and even turned them over to Z.R.

In my view, my acceptance of Ms. L's evidence on the above points materially contradicts the account of Z.R. on significant points and calls into serious question about what she says happened in the garage. It creates a disturbing cloud of doubt on her purported facial injuries, her torn sweatpants when she clearly had them in her possession for some time before she turned them over to the police and her evidence that he readily used a knife to threaten her, which was his alleged tool of intimidation on earlier occasions. Even if I can't trust what B.L. said he didn't do, I can't also trust what Z.R. said he did do which leads me to a clear path of acquittal on counts 9-11. In my view, it would be unsafe to convict B.L. of any count during the garage incident. On step two of the W.D. analysis, the Crown has not proven the garage incident and counts 9-11 are dismissed. Turning next to the remaining counts.

Assessment of Z.R.'s Evidence

Counts 2, 4, 7 and 8 all involve assaultive conduct of varying degrees while count 6 is an allegation of sexual assault. A common theme in all the counts is Z.R.'s evidence that they all occurred in B.L.'s bedroom where they were alone. Unlike the garage incident, there is no evidence from a third party. This makes a credibility evaluation more challenging. Ms. Samet focused her submissions on alleged weaknesses in the account of Z.R. even though her client was clear in his denials. Mr. Slessor also pointed to the evidence of Mr. Johnston who testified about seeing Z.R. after an incident in which she presented with injuries and a demeanor suggesting she was assaulted.

I propose to address the above counts together in light of their common feature of conduct allegedly committed in private. I'm mindful there is no defence being advanced for the sexual assault allegation based on consent or mistaken belief in consent. B.L.'s position is he never sexually assaulted her against her will on the specific occasion she alleges. It isn't lost on the court that the parties clearly had consensual sex which lead to her pregnancy, but this doesn't factor into my analysis because the law requires B.L. to secure communicated consent every time he had sex with Z.R. It is entirely irrelevant that they were in a relationship as partners.

For largely the same reasons and enunciated above, I simply cannot place any confidence in B.L.'s denials. Having said that, on step two of W.D., his rejected evidence may be capable of raising a doubt because of the implication of my conclusion on counts 9-11, namely that Z.R.'s account was seriously undermined in material ways suggesting she was not being truthful. However, I'm reluctant to paint her evidence with a broad brush of not being credible for all purposes because as stated above, I can accept some all or none of a witness' evidence. Guilt or innocence is not an all or nothing proposition. I'm inclined to proceed to step 3 of W.D. and carefully assess her evidence on these counts to see if it has the ability to overwhelm his denials as permitted by the analysis in J.J.R.D., supra. Stated differently, I will consider if a reasoned and considered acceptance beyond a reasonable doubt of Z.R.'s evidence on these counts is capable on its own as a reason to firmly reject the denials of B.L. and find him guilty of some or all of the counts.

General Observations About Credibility and Reliability

Z.R. presented as a calm and emotionally fragile witness. Ultimately, she admitted she suffers from mental health issues prompted by abuse suffered by her mother which his unfortunate. However, this did not prevent her from cobbling a narrative for the police to which she said was complete and accurate. As noted, she was not aggressively challenged in cross-examination and the evidence in-chief was fair with open ended questions. For some reason, she recalled very little, answered "I don't remember" often and could not explain why she couldn't recall things. It is not lost on the court that if what she said is true, she may have been traumatized and perhaps that trauma held her back, but this was never explored. Or it could be that she used her faulty memory as a crutch to avoid telling the truth. As I will explain, she had a difficult time recalling events and key dates which is somewhat concerning as the allegations are not that dated. The couple had been together for approximately 3 months before she went to the police in February 2018 and was asked to memorialize her recollection with an email which she did. She didn't keep drafts of that email but this show she turned her mind to the events without proving an interview on the spot. This not a case where years had passed before she was tasked with recalling events which might explain some gaps in one's recollection. In the end, she presented as a very sincere witness, but it would be legal error to treat her sincerity as a hallmark of credibility without testing the reliability of the evidence as well: R. v. Slatter, 2019 ONCA 807, [2019] O.J. No. 5073 (C.A.) at paras. 61–64.

Ms. Samet's core submission is that Z.R.'s account of any assaultive conduct is not credible because she had a motive to lie as she learned B.L. had cheated on her to which he confessed, setting off the garage incidents, her evidence is internally and externally inconsistent on material points, she was wholly unreliable in recalling key events suggesting a carelessness with the truth and any external evidence, including the evidence of Mr. Johnston does not assist to confirm her account. I will evaluate these claims below.

Findings on Control and Motive

First, it was argued Z.R. went to the police in February because B.L. had confessed to infidelity which made her very angry so much so that she "trashed" his room. It was argued this provided some motive to make up the allegations and lie. As a matter of law, there is no onus on the Crown to prove B.L. had a motive for his alleged crimes but equally there is no onus on the defence to disprove motive or to prove that Z.R. had a motive to lie: R. v. Bartholomew, 2019 ONCA 377, [2019] O.J. No. 2371 (C.A.). In Bartholmew, Trotter J.A. reminded at para 23: "Therefore, in this context too, there is a "significant difference" between absence of proved motive and proved absence of motive: L.L., at para. 44, fn. 3. The reasons are clear. In R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 (C.A.), Rowles J.A. explained, at para. 28: "it does not logically follow that because there is no apparent reason for a motive to lie, the witness must be telling the truth." This point was made in L.L., in which Simmons J.A. said, at para. 44: "the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate" (emphasis added). See also R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-109; and R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 93.

In this case, I find the evidence is unclear about a motive viewed from both perspectives. The most I can make of the timing of the police complaint is a firm finding that it had something to do with her learning about his admitted infidelity and less to do with alleged violence. To this end, I agree with the defence that Z.R. was inconsistent on her purported desire to leave the residence. In chief, she testified she wanted to leave "every day" after the abortion (October 2017) but in cross-examination admitted wanting to come back to the residence. Indeed, there is evidence to suggest she was working part-time throughout, had access to a vehicle and made a decision to come back to the residence on her own. She had ample opportunity to not return but chose to. Accordingly, any suggestion she went to the police because she was so overwhelmed with fear cannot be true.

Related to the above, while I found as a fact that B.L. was controlling in so far as limiting her contact with friends and in particular male friends, I am not prepared to find as a fact that Z.R. perceived this behavior as controlling to the point of paralyzing her movements. In my view, a more reasonable inference is both parties were insecure and with their mental health issues didn't know how to cope with this insecurity. I agree with the defence that Z.R., despite her evidence she was "controlled" by B.L. left sticky notes expressing her love and devotion for him. This is evident in some of the text messages as well but without a doubt her note that Ms. L found in her son's room on January 29, 2018 offers no room for doubt when she wrote to B.L. "I can't wait to come home and see you [heart emoji] "Get ready to cuddle, xo" [which I know to mean hugs and kisses]: Exhibit 8. I do not find that Z.R. feared for B.L. which might explain why she stayed in an abusive and controlling relationship. The law recognizes there are various reasons domestic complainants may stay in abusive relationships and my finding that Z.R. stayed in the relationship for months after alleged abuse is not the same as concluding the events never took place. Rather, I have simply found that her evidence he was controlling to the degree it prevented her from going to the police earlier in the relationship is not credible when viewed as a whole.

In DD, supra, Major J. writing for the Supreme Court held:

… "[R]easons for delay are many and at least include embarrassment, fear, guilt, or lack of understanding and knowledge. 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 delayed disclosure standing alone will never give rise to an adverse inference against the credibility of the complainant (My emphasis)."

To be clear, I am not making a credibility finding against Z.R. based on any delayed disclosure which has been abrogated. I have simply assessed the timing of the complaint against her evidence that she wanted to leave since October 2017 but chose February 2018 and her evidence she was controlled by him. While this doesn't rise to proof of a motive to fabricate, it does undermine her credibility on the above two points.

Second, Ms. Samet says Z.R. was remarkably unreliable in several respects in relation to all counts which seriously undermines her credibility as a whole. It bears repeating that credibility and reliability are different concepts. Credibility deals with the honesty of a witness while reliability deals with accuracy of a witness. Both are factual determinations. Credibility is not a proxy for reliability. A credible witness may provide unreliable evidence which standing alone may not be sufficient for the Crown to meet their burden of proof: Morrissey, supra at p. 526. Cases that turn on reliability concerns are often those involving child witnesses or witnesses who might not have the full capacity to recall and recount events. This does not apply in this case because Z.R. testified as an adult, albeit an emotionally fragile one. In Slatter, supra, at para. 119, the Court of Appeal considered the suggestibility of a witness when assessing reliability, which too is not a concern in this case because Z.R. gave a statement after having time to reflect on what happened and Ms. Samet's cross-examination was not aggressive where Z.R. ended up agreeing with every suggestion put to her. Rather, it was methodical and revealed differences, omissions and inconsistencies. I propose to examine these alleged complaints in her evidence with respect to the individual counts.

Counts 9-11: The Garage Incident

As noted above, the denials of B.L. when viewed in context of Ms. L's evidence are capable of raising a doubt about what happened in the garage. Ms. Samet says there are reliability and credibility problems which arise in the evidence of Z.R. as it relates to these counts. I do not propose to address every submission but I will focus on the main ones that support my conclusion she was not reliable on these counts:

(1) I find Z.R. was more than just mildly upset prior to the garage interaction which is evidenced by her "trashing" B.L.'s room, spilling bong water on top of a stuffed animal, which she tore, and tearing notes in his room;

(2) I find Z.R. was not reliable as to whether B.L. in fact scrolled through her phone which was the reason according to her, he got upset. In cross-examination, she admitted she assumed he looked through it but didn't know for sure;

(3) I find Z.R. was inconsistent on whether B.L. told the police that B.L. sent a threatening text message to a friend stating he was going to "gut him". This message was never retrieved and could not be confirmed;

(4) I find Z.R. was inconsistent on whether B.L. was waiving a knife in the garage. In her earlier statements, she never said he was "waiving" the knife around;

(5) I cannot be satisfied B.L. burned her face with a cigarette. Ms. L saw her twice in the garage and didn't see any burn marks. She saw her again in the house and didn't see any injuries. Z.R. herself acknowledged she didn't have any visible injuries then testified "I don't know". The photographs in Exhibit 1 taken two days later do not confirm this evidence because they reveal scars but not fresh burn marks;

(6) I find Z.R. was inconsistent on whether she was kneed in the face. In chief she said B.L. pulled her head "towards his knee" which is inconsistent with her police account where she said his knee made contact with her face;

(7) I find Z.R. was inconsistent on whether B.L. made a stabbing motion with a knife towards her stomach. She did not say this in two prior statements, a significant omission which goes to credibility;

(8) I find Z.R. was not credible or reliable about whether she was backhanded with her head hitting a plywood in the garage resulting in her nose "leaking". Ms. L never saw her with a leaky nose, never saw B.L. with a bloody pinky finger;

(9) I find B.L. did not break a chair in the garage. Not only did Ms. L not see a broken chair, this is something that would have made some noise which wasn't detected by Ms. L;

(10) I can't be satisfied B.L. brandished a knife which Z.R. said was a regular kitchen knife. She said she grabbed it from him, which as a matter of logic would reasonably result in some form of injury. Indeed, she agreed after a probing cross-examination, B.L. "cut her hand". There was no evidence of an injury to her hand. I agree she was evasive on this point while saying she was trying grab it away from him, she also said she wasn't using a lot of effort. The point of injury is also rebutted by Ms. L who said the following day (February 10th) she applied a beauty facemask with her and saw no visible injuries; either from the burning, cutting or alleged backhand;

(11) I do not find her sweatpants were cut during this occasion. Ms. L was credible in her account that she laundered them and never saw cuts because she dried them for her and examined them before she turned them over.

Count 2

Count 2 alleges an assault between December 1 to 15, 2017. It is my view that recollection of a first and last incident in a relationship where they may be other criminal acts would stand out in the mind of a complainant. As a matter of logic, what starts and ends the criminal conduct are reliable bookends and would help one's mind to situate the events. It may be more understandable for a person to forget what happened in between the bookends, but the first and last would be reliable anchors. In this case, Z.R. testified about the garage incident then she was asked by Mr. Slessor about the first incident in time. The evidence was as follows:

Q. Okay. Do you recall the first incident that happened in time that you told the police about?

A. Laying in his bed.

Q. Okay. And do you remember approximately when that was …

A. No.

Q. .. or something that happened you were supposed to go to around then?

A. No.

Q. Sorry?

A. Yes, I do.

This prompted Z.R. to explain the nose-ring incident which she said was at the time of her friend C.'s birthday. She testified she couldn't recall when this incident took place. After refreshing her memory from an email she wrote to the police, she said the nose ring incident happened when B.L. allegedly backhanded her on the left side of her face while they were in his room. This allegedly happened on January 13, 2018. It was accompanied with her favorite t-shirt being torn.

The Crown called Mr. J who testified he was a co-worker at Wal-Mart. He testified he was very close to Z.R. and said towards the end of October he noticed a change in Z.R.'s demeanor. On January 14, 2018, he noticed some bruising around her left eye which resulted in Z.R. offering an explanation of a self-inflicted injury. In cross-examination, he acknowledged she had dark circles under her eyes, and he didn't see any injuries to her nose which might be consistent with a nose-ring being dislodged. While this may support an eye injury, it does not support her account that she had a cut on the bridge of her nose which she said was visible and would be more prominent.

It is clear that the first incident which stood out in her mind as the nose-ring incident according to Z.R. did not happen between December 1 to 15 in 2017 as set out on count 2 of the information. That said, count 4 on the information does allege an assault from January 1 to 31, 2018 which might help the Crown but equally, count 5 alleges a death threat with the same time-frame suggesting counts 4 and 5 occurred on the same date. Accordingly, I am not prepared to "fit" Z.R.'s evidence of this incident into count 4. But there's a stronger reason not to do this because according to her, this was the first incident in time which is inconsistent with counts 4 and 5 because counts 1, 2 and 3 all allege criminal conduct from November to December 2017. In R. v. Sadeghi-Jebelli, 2013 ONCA 747, the Court of Appeal affirmed the principle that when the Crown charges an accused with an offence, and particularizes the way the offence was committed, it must prove the offence as particularized in the charge, citing McLachlin J. (as she then was) in R. v. Saunders, [1990] 1 SCR 1020 at 1023. Laskin J.A. added (at para. 24) this principle is grounded in fairness. " Particulars permit 'the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial". See R. v. Côté, [1978] 1 SCR 8 at 13. This principle is subject to an exception for "mere surplusage", or information in the indictment that is not essential to the offence, but that exception does not apply here. See R. v. Vézina, [1986] 1 SCR 2 at para. 49". I have considered whether the time and or date of the offence is mere surplusage and in my view it is not. B.L. was entitled to know what the specific assault was and when it was allegedly committed so he could mount a defence. In this way, it is essential to Z.R.'s allegation of repeated abuse and it was the first event in a series of many she alleged: R. v. B. (G), [1990] 2 S.C.R. 30 at paras. 44-45. Z.R.'s evidence of the first incident might conform with counts 1-3 except the Crown invited count 1 to be withdrawn and count 3 to be dismissed leaving count 2. The Crown did not seek to amend the time-frame of this count to conform to her evidence which was requested (and granted) with respect to count 8. This is further proof it was essential to Z.R.'s account. Since Z.R.'s evidence does not comport with the particularized time-frame in count 2, this count must be dismissed because the date of the offence, an essential element, was not proven. Given this result, I need not scrutinize Mr. J.'s evidence. While I found him to be credible, it did not provide any sound confirmatory evidence of an injury especially because he acknowledged that sometimes, Z.R. had dark circles under her eyes. I have seen photographs of Z.R. taken in February 2018 (Exhibit 1) and she is a woman with dark complexion. Unlike a person with lighter-toned skin, it is not evident to me any markings under her eye would reasonably lend one to conclude they were invariably from the application of force. Thus, apart from the problem of proof arising from the date of the offence, the evidence as a whole also is not capable of firmly concluding beyond a reasonable doubt that B.L. backhanded her on the left side of her face resulting in her nose-ring being dislodged. Nor can I be satisfied her t-shirt was torn on this date because she was ultimately unclear when this happened which might be a different path to a conviction. Indeed, I accept Ms. L's evidence that she did the couples' laundry and never saw a torn t-shirt of this variety. Either way, the evidence is weak and insufficient.

Counts 4 and 5

Counts 4 and 5 allege an assault and uttering a death threat between January 1 to 31, 2018. Z.R. explained this incident as the next ones in time when B.L. allegedly stepped on her throat, applying pressure and uttered: "Today you die". In examination in chief, Z.R. was asked about when this occurred with Mr. Slessor asking her are there any other incidents that happened after the first event in January but before February which prompted her to provide the above evidence. In my view, this too suffers from the same fate as count 2 for the following reasons.

First, there is no reliable evidence as to when this incident took place. Z.R. testified it happened after the first incident but that's all. The evidence was:

Q. And you indicated to him, "one day we were laying in bed"

A. Yes.

Q. And you indicated to him, "I was laying on the left side, he pulled me over top of him, and then on the floor and he stepped on my throat".

A. Yes.

Q. Okay, So, that is a specific recollection that you had?

A. Yes.

Q. And do you – you don't recall when that happened?

A. No.

Q. You don't recall what month that happened in?

A. I don't know.

Second, Z.R. was inconsistent on key points including:

(i) In chief she testified B.L. was shouting at her to get up but she did not say this during her videotaped statement;

(ii) In chief she said B.L. sat on a chair after the event, but never mentioned this during her video statement;

(iii) In chief, she said B.L. "grabbed and pulled" her over top of him and onto the floor but in cross-examination she said B.L. "picked her up and carried her" and she landed on the floor. She denied this was inconsistent, but it is a subtle difference which is important because of the way she would have landed on the floor.

Third, Z.R. had several gaps in her recollection on the following points:

(i) what if anything started the alleged incident;

(ii) when during the day it happened;

(iii) what the parties were wearing at the time given her evidence of using fingernails in his legs;

(iv) how high B.L.'s foot was off the ground before it was placed on her neck;

(v) how long it was on her neck;

(vi) what foot he used;

(vii) who else was home that day (if anybody was home) or if the door to his bedroom was open or shut;

(viii) if she had any redness, bruising or marks on her neck.

I find the gaps viewed as a whole undermine her reliability and credibility because Ms. L was not impeached on her evidence that Z.R. had dinner with the family and never saw Z.R. experience trouble swallowing as she claims. While I disagree that Ms. L would have also heard any loud thumping, the evidence didn't go that far. I agree as well that the absence of medical evidence or injuries in the circumstances where a very serious incident akin to choking might be expected and adds to the gaps in the account. For the above reasons, I cannot be sure of Z.R.'s account and counts 4 and 5 will be dismissed. Turning next to count 6, the sexual assault allegation.

Count 6

Count 6 alleges a sexual assault on or about January 28, 2018. The evidence on this count is somewhat odd because Mr. Slessor had to remind her that she had claimed B.L. sexually assaulted her. She didn't have any memory of it until she was reminded. She went on to explain "sometime" in January 2018, B.L. proceeded to have sexual intercourse against her wishes and forced her to perform oral sex with an ultimatum. She later said it was January 28th. Ms. Samet raises the same reliability concerns.

First, as a matter of human experience and logic, a sexual assault allegation is perhaps the most serious and traumatic event even in the context of alleged repeated abuse. Ms. Samet says Z.R. failed to recall significant aspects of this allegation which are relevant to a consideration of her credibility: R. v. Roth, 2020 BCCA 240, 2020 B.C.J. No. 1333 (BCCA) at para. 125. She pointed to (i) a failure to recall who was home on the date of the incident, (ii) what she or B.L. were wearing prior to the allegation, (iii) why she was tired, (iv) how her body was positioned relative to B.L. (v) what underwear she wore and how it came off, including if B.L. used one or two hands, (vi) what B.L. said to her prior to the allegation, (vii) how much force B.L used to push her to the floor, (viii) if she was injured by being pulled on to the floor, (ix) what hand she used or what part of the body she touched to push him off to end the allegation. Finally, Ms. Samet says Z.R. doesn't recall how a pillow was brought for her comfort, including conceding that she may have obtained one herself.

Second, Ms. Samet argues Z.R. was inconsistent on key areas. She pointed to one material area including her evidence in chief when said B.L. gave her an ultimatum with respect to oral sex: "Swallow or in you". Z.R. admitted she did not recount this during her videotaped statement to the police. In the circumstances, I don't view this as a material inconsistency, but I do agree with Ms. Samet that it's concerning Z.R. had to review her email she was provided by the Crown prior to completing her cross-examination. She was being cross-examined and while the Crown didn't participate in this, it shows a lack of confidence in her account and a desire, perhaps to appear credible.

Third, I find as well that the account as described by Z.R. suffers from implausibility in view of what happened before and after the event. In particular, I accept the evidence of Ms. L that the family were celebrating Z.R.'s start of school on January 29th and on January 28th she cooked a big meal and delivered food to B.L.'s room. Z.R. recalled "one time" receiving food in the bedroom which I find was January 28th, the same date of the alleged sexual assault. This would put Ms. L in the home on that night and while I don't know because Z.R. couldn't say when the alleged assault took place, I cannot accept that her being pulled to the floor of the room by her ankles would not have resulted in some noise. While I don't have specific evidence of height and weight of the parties, both are full size adults not akin to children. Ms. L was not impeached on this point because she said she never heard any unusual noises akin to a thump or never saw Z.R. with an injury that evening or demeanor to suggest something terribly traumatic happened.

Given the reliability concerns I have with Z.R.'s evidence including her poor recollection of events, I am not satisfied that her evidence on this count overwhelms B.L.'s denials following J.J.R.D. There is no basis for me to reject the denial when viewed in context of the evidence as a whole. I did not evaluate Z.R.'s credibility based on impermissible myths or common-sense propositions. Rather, I've evaluated her credibility based on a full consideration of her reliability concerns which doesn't give me confidence in her account that I require to be sure B.L. is guilty of this offence. The reliability concerns were "too wound up with the evidence on other counts to be logically separable": R. v. D.T. [1998] O.J. No. 1583 (Ont. C.A) at paras. 11-12. Turning next to count 7.

Count 7

Count 7 alleges the offence of assault with a weapon, namely a cellphone committed between January 29 to February 9, 2018. I note that the Crown previously invited count 3 which also alleged an assault with a cellphone to be dismissed. That count was particularized as occurring between December 1 to 15, 2017. I tend to agree with Ms. Samet that the evidence on this count is weak because the time of the offence is an essential element that must be proven beyond a reasonable doubt and has not: B. (G.), supra at paras. 44-45. Z.R. testified B.L. threw a cellphone at her torso but was unclear about when it happened. The garage incident also involved a cellphone and was on February 9th but her account didn't involve an assault with the cellphone. At its highest, B.L. was scrolling through her cellphone. Further, Z.R. was silent on a cellphone being "whipped" at her on this date.

Further, she testified about another occasion which possibly also took place in the garage when B.L. had her cellphone and was scrolling it to look up a diagnosis for his mental health issues and anger. He asked for her help and she told him "I can't help you". He got angry and whipped it at her stating: "You're a horrible person". In cross-examination, she admitted she never memorialized this event in her email statement which she provided the police and said was a true and accurate reflection of what happened. After stating she had drafts of earlier emails, she readily admitted she could not remember if this cellphone incident was included on earlier drafts and then later said No. Further, she failed to mention this incident during her videotaped statement to the police only two days later. Ms. Samet is right that in isolation this might have been a minor oversight on her part, but when viewed in context of why she even drafted the email because she was "a mess" when she first went to the police, her omission in two accounts is problematic and impacts her credibility. I do not have any confidence in her account that B.L. "whipped" a cellphone at her from January 29 to February 9, 2018. Turning next to the final count, being count 8.

Count 8

Count 8 involves an allegation of possessing a weapon, namely a knife for the purpose of committing an offence under s.88(1) of the Criminal Code from December 25, 2017 to February 9, 2018. The Crown's theory of liability of this count is that B.L. used a knife as a tool of intimidation against Z.R. While the information was not particularized about a specific event involving a knife, there are three paths to a conviction. First, the general allegation that B.L. would keep a knife in his bedroom as a tool of intimidation, second, the more specific allegation that B.L. used a knife on her bare skin while touching her vagina and third, by inserting a knife in her mouth. Ms. Samet argues all three routes suffer from the same reliability and credibility concerns. I agree.

First, I found as a fact that Ms. L's evidence viewed in conjunction with B.L.'s denials of keeping a knife in his room were credible. She cleaned his room including his couch and never came across a knife. This is not to say B.L. could have secreted it for a temporary timeframe without his mother knowing, and only bring it out when he wanted to use it but it is some direct evidence it was not hidden in the couch as Z.R. claims and circumstantial evidence that he would not normally keep it hidden.

Second, I agree there exist important inconsistencies in Z.R.'s account. In chief, Z.R. explained B.L. had her bend over on the bed and used the knife he would keep in his couch to trace it on her vagina. However, in cross-examination, she never told the police he made her bend over or that he traced it on her vagina. Both critical details. She agreed providing a "full account" but also didn't add it came to her buttocks. Z.R. explained her memory would not have been better in February 2018 when compared to February 2020 at the time of testifying, some two years later. With respect, this makes little sense. I do not know if Z.R. suffers from some capacity issues which impacts her memory as no evidence was called on this point but as a matter of human experience, memories fade over time. They do not usually get better. Regrettably, if her memory only got better, it wasn't presented as such in the courtroom.

Third, I agree as well Z.R. was unreliable with respect to a knife being in her mouth. In cross-examination she admitted this incident only happened once which removes any possibility for confusion with another incident. In chief, she testified she could not recall if this happened after January 28th and "it could have happened before that" which means she had no firm memory of when it occurred. She had no recollection of what occurred before the knife ended up in her mouth how B.L. got on top of her and what happened after except B.L. taking it out. She said the knife was "in my mouth" which was different from what she told the police that it was "inside her throat". The knife was pressing against her tongue and she was moving her head while the knife remained inside her mouth. Z.R. drew this knife depicted in Exhibit 10. It is a substantially sized knife with a pointed blade. Z.R. testified she had no discomfort in her mouth and no injuries. In my view, this account is most bizarre especially because she admitted she was moving her head around while a knife was inside her mouth. I cannot be sure this event took place to find B.L. guilty of a crime beyond a reasonable doubt.

Respectfully, the account of Z.R. which spanned criminal conduct from almost the inception of the relationship in October 2017 to the end in February 2018 was riddled with unreliable evidence. Even after not having any confidence in B.L.'s core denials on the first step of the W.D. test, on the second step of W.D. his denials were capable of raising a reasonable doubt when I consider all the evidence, including the evidence of Ms. L and Mr. J. That would have been enough to end the legal analysis, but I have gone further and considered the third step of W.D. to determine if a reasoned consideration of Z.R.'s evidence beyond a reasonable doubt was on its own capable of assisting the Crown in meeting their burden. There is simply no rational basis to arrive at a guilty verdict on one or more counts given the reliability concerns which pervaded all the counts in this short time-frame. Z.R.'s evidence could not carry the Crown's burden. In the end, this means the Crown has not met their heavy burden of proof on any counts and the law compels me to dismiss all counts.

VI. CONCLUSION

In conclusion, this was a difficult case. I would like to be clear that the legal result in this case does not mean I have disbelieved Z.R.'s allegations in their entirety or that I believe B.L. is innocent of the charges. It simply means I concluded the Crown didn't meet their legal burden of proof based on the evidence of two emotionally fragile witnesses, both of whom suffer from mental health issues. It is improper for a court to wonder why an emotionally fragile person would put herself through the ordeal of a criminal trial if there was no truth to any of the assertions. It is also improper to reason a witness must be telling the truth despite imperfections in the evidence. Both might be logical questions to a member of the public but are improper ones for a court because they reverse the burden of proof by placing an onus on B.L. to prove his innocence. Criminal cases are not decided on this basis because it undermines the rule of law.

In the very end, on this record, I simply can't be sure that B.L. did what Z.R. claims he did to her. Accordingly, all remaining counts will be dismissed.

While it is evident this domestic relationship is over, the court can only hope it doesn't scar any future healthy relationships for either party. The court implores both parties to get help in the community for their mental health issues.

I would be remiss if I didn't thank counsel for their professionalism and advocacy in this challenging case. In particular, the litigation took a pause during the COVID-19 pandemic when the court shuttered. As a result, the court ordered transcripts of the evidence to assist all parties in arriving at a fair result. The court is particularly grateful for counsel's focused submissions.

Released: November 12, 2020

Signed: Mr. Justice F. Javed

FOOTNOTE

[1] The information originally charged B.L. with 11 counts. On May 8, 2019, the Crown (not Mr. Slessor) invited the court to withdraw count 1 which was formally withdrawn. With the dismissal of count 3, this leaves a total of 9 counts to adjudicate.