WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
( b ) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2021 03 19 Court File No.: Hamilton Information No. 19-2960
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
M.G.
Before: Justice J.P.P. Fiorucci
Heard on: August 13 and 14, 2020 and January 11 and 14, 2021 Reasons for Judgment released on: March 19, 2021 [1]
Counsel: C. Hopkins, counsel for the Crown V. Singh, counsel for the Defendant, M.G.
FIORUCCI J.:
Introduction
[1] M.G. and D.A. were in an intimate relationship between approximately 2001 and the summer of 2004. In 2016, D.A. reported to police that M.G. had sexually assaulted her on or about July 29, 2001, their first date. She said that he forcibly vaginally penetrated her without her consent. The police charged M.G. with sexual assault.
[2] M.G. entered a not guilty plea to the sexual assault charge. At trial, the Crown called two witnesses, D.A. and her friend, C.I.. C.I. testified about conversations she had with D.A. in or around the date of the alleged offence.
[3] M.G. testified at the trial. He denied sexually assaulting D.A. on their first date. In fact, he denied that any sexual touching or sexual intercourse occurred on this first date. According to M.G., the date ended cordially, with merely a kiss.
[4] I must determine whether the Crown has met its burden of proving the sexual assault offence beyond a reasonable doubt.
Legal Principles
[5] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus [2]. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
[6] In this case, M.G. testified. His evidence was exculpatory. I am required to consider and apply the framework enunciated in R. v. W.(D.) [3], which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused’s evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused’s evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
[7] I must determine whether the Crown has proven the specific criminal allegation it has made beyond a reasonable doubt. Even if I do not accept M.G.’s exculpatory testimony, his evidence — viewed in the context of all of the evidence — may leave me in a state of reasonable doubt about his guilt. If it does, he is entitled to an acquittal.
[8] A criminal trial is not a "credibility contest". Even if I were to prefer the complainant's narrative to the one offered by the accused, it does not resolve whether I have a reasonable doubt about the accused's guilt. There are other options requiring acquittal, including "the legitimate possibility" that I am unable to resolve the conflicting evidence and am accordingly left in a reasonable doubt [4].
[9] The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation [5]. I can accept all, some or none of a witness’s evidence [6].
[10] The W.D. case “ does not describe three sequential analytical steps that a trier of fact must pass through, one at a time” [7]. As Code J. stated in R. v. Thomas:
A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence. [8]
[11] The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.
The Evidence
Background:
[12] M.G. first met D.A. when he was employed with a financial institution that was affiliated with a grocery store. M.G. worked in a kiosk attached to the grocery store. Sometime in 2001, D.A. attended with her parents at the kiosk to open a bank account. M.G. assisted with the opening of the account.
[13] D.A. started working at the grocery store a short time after she opened the bank account. M.G. and D.A. would see each other on days that they worked similar shifts. According to M.G., they would run into each other periodically and have brief encounters. M.G. testified that they began to discuss personal things like the fact that he was divorced and had three children and the fact that D.A. had just broken up with her boyfriend. M.G. was much older than D.A., who was in her last year of high school.
[14] One day, when M.G. and D.A. were speaking at work, D.A. mentioned that she was interested in seeing a certain movie but none of her friends wanted to go with her. M.G. and D.A. agreed to go see the movie together.
The Date:
[15] M.G. and D.A. went out on a date. Their respective testimony regarding what happened on their first date diverged significantly.
[16] D.A. claimed that M.G. picked her up late which made them miss the start time of the movie. M.G. told D.A. not to worry about her movie and that he had other plans. He told her to look in the back of the car. She saw a cooler in the back that had Mike’s Hard Lemonade in it.
[17] M.G. denied that he had a cooler of alcohol in his car when he picked up D.A. for the date. He testified that when he picked her up, she told him that she had a curfew of 10:00 p.m.. He suggested that they go somewhere to have a drink since there was not enough time to see the movie and have her home on time for her curfew. D.A. agreed and they stopped at an LCBO to purchase some alcohol. M.G. could not recall what type of alcohol they purchased.
[18] Both M.G. and D.A. testified that they went to a park where they sat and talked. Alcohol was consumed but their testimony differed regarding the quantity of alcohol consumed by D.A.. D.A. maintained that she drank enough to feel dizzy, unwell, and “woozy”. According to M.G., D.A. did not drink very much at all; “she had a few sips”. M.G. testified that he too had less than a bottle of whatever they were drinking.
D.A.’s Allegation of Sexual Assault:
[19] D.A. testified that once she became dizzy and woozy from the consumption of alcohol, she closed her eyes and took a deep breath to steady herself while sitting on a tree branch at the park. M.G. leaned in to kiss her, at which point she recoiled and said, “I don’t want that, don’t do that.” D.A. said she recoiled because the kiss was completely unexpected:
That’s not why I went out that day. I went out to see – my intention was to go see a movie as friends. It hadn’t occurred to me that if were (sic) to miss the movie I would be taken to a park and assaulted. It just – it wasn’t on my mind.
[20] According to D.A., after the unexpected kiss, she and M.G. continued drinking and talking and she started feeling worse. She closed her eyes again. This time, M.G. put his hands around her back and unhooked her bra. She said, “don’t” and was very adamant that this was “not behaviour [she] wanted”. D.A. testified:
When he had the bra unhooked, I said “close it, because I – don’t do that, just stop, don’t.” So, he did and he said, “Okay, okay, okay. It’s okay, it’s okay”.
[21] The drinking continued. D.A. remembered M.G.’s hands being out trying to steady her so she would not fall in the water. M.G. then said, “you know what, you’re – you look a little dizzy, let’s go sit down so you don’t, obviously, fall in the water”. D.A. said they then went back to the car.
[22] According to D.A., when they got back to the car M.G. reclined the front passenger seat all the way back and told D.A. to sit down. D.A. laid down and closed her eyes. She described what happened next as follows:
I sat inside the car, closed my eyes, and the next thing I realize, he is on top of me and with his weight he’s holding me down and undoing my pants. I was wearing black pants at the time. My hands were up by my shoulders trying to push him, couldn’t. And the whole time he was saying, “Shh, it’s okay, it’s okay, it’s okay, shh, shh, shh, shh.”
[23] D.A. remembered her pants being pushed down and the pain of being forcibly penetrated. When she was asked whether M.G. removed any of his clothing, D.A. replied:
I would expect that his pants were removed. I don’t remember if the shirt was removed.
[24] D.A. described the sexual assault in the car in the following exchange with Crown counsel:
Q. Were his – when you say that you were penetrated, what was penetrating you? A. His penis was in me. Q. And after that, what happened? A. So, after that, I remember struggling, I remember saying, “No, no, get off me, stop, I don’t want this,” and the whole time, “Shh, shh, don’t worry, it’s okay, it’s okay, shh, shh, shh.” And it just didn’t stop until he stopped. Q. How long did that last, if you can tell us? A. I – I don’t remember. It’s hard to say. Q. And you said it continued until he stopped? A. Yes. Q. Tell us how it ended. A. I – based on the sounds, I would expect that he had finished. Q. Do you mean that you expect that he ejaculated? A. Yes. Q. Okay. Was he wearing a condom? A. I believe so. Q. Did you consent to the penetration? A. Absolutely not. Q. After he finished, what happened then? A. He stepped out of the car, got his clothes on, I pulled up my pants, got myself kind of sorted, he came around to the driver’s side and got in and he said, “Are you okay?” I said, “No.” “Do you want to talk about this?” I said, “No, take me home.”
M.G.’s Denial:
[25] M.G. testified that the couple talked at the park, had a drink, and then he drove D.A. home at the end of the night. The night ended with a cordial kiss, either on the cheek or on the lips. M.G. denied any sexual intercourse or sexual touching whatsoever. He emphatically denied that he forcibly vaginally penetrated D.A. without her consent as she alleged.
Analysis
[26] Having considered the totality of the evidence, I am left in a state of reasonable doubt in this case. First, I have significant concerns about the credibility and reliability of D.A.’s evidence.
[27] Defence counsel did not object to the Crown calling C.I. to testify about conversations she had with D.A. in or around the time of the alleged sexual assault. On its face, the reception of C.I.’s evidence in the trial risked offending the general rule that prior consistent statements are inadmissible. However, Defence counsel chose to pursue a defence strategy that exposed inconsistencies between the evidence of D.A. and C.I. regarding their conversations about M.G..
[28] D.A. claimed that, when M.G. dropped her off at home at the end of the date, she ran out of the car, and ran upstairs to call her best friend, C.I.. According to D.A., when she called C.I., she (D.A.) was “very confused, very upset about what had just happened, explained the night’s events to C.I. and said, “I think I was just raped”. D.A. used the words “I think” when she spoke with C.I. that night because it was not a discussion they had at home and she (D.A.) had a very sheltered life. It was just not something she was prepared for.
[29] According to D.A., she told C.I. “exactly what happened” that night. The following exchange occurred between D.A. and Crown counsel on re-examination:
Q. Can you just explain to us a bit more, what does that mean when you say you told her everything, what exactly did you tell her? A. Sure, sure. So, I told her that I had gone out with this person, that we were supposed to see a movie, we didn’t, we ended up at this park, and everything that led up to and including the unwanted penetration. Q. And did you tell her specifically about the penetration? A. I did. I did.
[30] D.A. testified that, during this telephone conversation, C.I. agreed with her that she had been raped:
Q. And you spoke to her for a long period of time, and based on the conclusion of that conversation, [C.I.] told you, “Yeah, I think you were raped.” A. I did not come to that conclusion because [C.I.] told me. I posed to her – I said to her, “I think I was just raped,” which suggests that I already had some inkling that I was. Q. And your evidence is that [C.I.] agreed with you that you were raped. A. Based on what I had told her, yes. Based on the details I had told her, yes. Q. So…. A. She said, “Yes, that would be rape.”
[31] I find it difficult to accept D.A.’s testimony that she told her friend, “I think I was just raped”, and her evidence that this “suggests that [she] already had some inkling that [she] was”. If the events occurred at the park and in the car as D.A. described them, she would most certainly have known that she had been raped and would not need to have her friend confirm her inkling. I find D.A.’s explanation that she used the phrase “I think” because she had lived a very sheltered life implausible.
[32] Furthermore, C.I.’s testimony about her conversations with D.A. is inconsistent with D.A.’s testimony. C.I. testified that the telephone conversation she had with D.A. about D.A.’s first date with M.G. “was not immediately afterwards”, but she could not recall when the call happened.
[33] In examination-in-chief, C.I. confirmed some aspects of D.A.’s evidence. For instance, C.I. testified that D.A. called her after the first date and told her that they were going to a movie, or dinner and a movie, but D.A. had some drinks and felt woozy- “she (D.A.) didn’t feel right”.
[34] According to C.I., D.A. shared with her “that she thinks that some things transpired”. The following exchange then occurred between Crown counsel and C.I.:
Q. And what did you understand her to mean when she said she thought some things transpired? A. So, it was – that they were sexual in nature, but she did not specifically describe what in detail. Q. If you can, and I know it was a long time ago now, are you able to tell us exactly, using her words, what she told you about those things that were sexual in nature? A. So, her exact words to me were that she felt woozy, she was just going through the motions, and at that point in time I asked her, “D., like, was it consensual? Like, what happened?” So, but that’s the extent, even when I pushed her, that I’m aware of what happened. Q. And you said she told you that things were sexual in nature; did she say what sexual acts occurred? A. No, she did not. Q. And what was your response to that? A. I immediately said to her that she needed to report this and that I would take her, you know, as a friend to do so, and really pushed her on that.
[35] In cross-examination, Defence counsel put to C.I. passages from her original statement to Detective Candace Culp:
Q. And in terms of what exactly happened, and we’re referring to that same phone call, in terms of what exactly happened, you told Detective Culp, “She did not go into a lot of detail with me.” A. Yes. Q. Okay. And Detective Culp asked you, “Do you know if it was sexual contact or sexual intercourse? Did she tell you at that time?” I’m going to suggest to you your answer was, “No, she did not, she did not.” A. That is correct. Q. And then you were further asked by Detective Culp if you had any of the details of what happened and your answer was, “I don’t have the details, I was not privy to them, and she did not share them with me on that night, on that first night they went on their date.” A. Yes, that’s correct.
[36] Therefore, although C.I. testified in examination-in-chief that she believed the “some things” D.A. thought had transpired were “sexual in nature”, when Detective Culp specifically asked C.I. whether D.A. told her that it was sexual contact or sexual intercourse, C.I. responded, “No, she did not, she did not”.
[37] D.A. described her conversation with C.I. as a full discussion of the exact details of what happened on the first date, including the non-consensual penetration, which resulted in C.I. agreeing with D.A. that she had been raped. D.A. said the conversation happened immediately after she was dropped off by M.G..
[38] C.I., on the other hand, said that this hour and a half long conversation did not happen “immediately afterwards”. C.I. maintained that D.A. did not provide any details of what had happened even when C.I. “pushed her”. According to C.I., when D.A. told her that she was “just going through the motions”, C.I. was the one who asked “D., like, was it consensual? Like, what happened?”.
[39] Crown counsel argued that the issue on this trial was not whether sexual activity on the first date was consensual or non-consensual. M.G. denied that there was any sexual contact at all. Therefore, the Crown submitted that C.I.’s evidence that she had a conversation with D.A. about things that had transpired that were “sexual in nature” bolsters D.A.’s version of events.
[40] I reject the Crown’s submission. First, it is not clear from C.I.’s testimony what D.A. told C.I., and more particularly, whether D.A. told her that there was any sexual contact with M.G. on the first date. In fact, C.I.’s responses to Detective Culp’s questions suggest that D.A. did not tell her that there was sexual contact. From whatever D.A. told C.I., C.I. may have inferred that there was sexual contact and pressed her friend about whether it was consensual, but again, there is no clarity on what was discussed. What is clear is that D.A. and C.I. gave very different descriptions of what was purported to be the same conversation.
[41] There are other troubling inconsistencies between the evidence of D.A. and C.I.. D.A. claimed that she had no recollection of mentioning M.G. to C.I. prior to the July 29th, 2001 telephone call when she told her about the sexual assault:
Q. Okay. And your evidence is that prior to or on July 29th, 2001 you did not discuss M.G. with C.I., is that your evidence? A. That is my recollection, yes. I have – I have no recollection of mentioning him to [C.I.] prior to that day, the July day.
[42] According to D.A., she only spoke to C.I. about her interest in M.G. after the first date (ie. after the sexual assault). D.A. testified that “at the time of the incident [she] was not interested in him in that way”. However, at another point in her evidence D.A. acknowledged that she told C.I. that she had met someone at the bank. D.A. also testified that it was not her recollection that the July 29th outing was a date, but rather “just two people going to see a movie”. D.A. claimed that C.I. was not supportive of the relationship because M.G. was older and “because of what had happened”.
[43] C.I.’s evidence conflicts with D.A.’s evidence on this point. According to C.I., D.A. told her several weeks before the date that she had met M.G..:
Q. Was this the first time that you and her had talked about [M.G.]? A. No. She had told me several weeks before the date, the date that they went on, that she had met [M.G.] – so she banked at a President’s Choice Bank and at the Super Centre location at Guelph Line and Upper Middle in Burlington and she shared with me that she had met [M.G.], as [M.G.] was working there.
[44] Defence counsel further explored the conversations C.I. had with D.A. about M.G. before the date:
Q. Ma’am, when she spoke to you about [M.G.], let’s say the first time… A. Mm-hmm. Q. …she said to you, “Oh, I met this guy and he’s at PC Bank.” A. Mm-hmm. Q. Right? A. Mm-hmm. Q. Yes? A. Yes. Q. And she said, “You know, he’s kind of cute,” and you weren’t comfortable with that? A. So, she said, “I met a guy named M.,” and I asked her, “How did you meet him?” and she shared with me that he was the PC teller that was servicing, you know, helping her when she went to go do her banking. Q. And you didn’t approve of [M.G.], right? A. I – my – what I said to her was that I don’t think that you should be dating someone who is significantly older than you and I also don’t think that it’s professional that, you know, a banker who is currently working, when he was – he met you while he was working, so I don’t think that there – there should be some separation, that he shouldn’t be.
[45] C.I. testified that D.A. told her that she had exchanged contact information with M.G. before going on a date with him:
Q. And after that first discussion, [D.A.] phoned you and said that she had exchanged contact information with him and they were going to go out on a date. A. She said that they had exchanged information, but they had not had a date set yet. Q. But you told the detective, I’m going to suggest to you, that afterwards, after that first phone call when she introduces [M.G.] as a figure… A. Yes. Q. …that I’m going to suggest to you, you told the detective that, “Afterwards she phoned me and said they were going out somewhere.” Did that…. A. Yeah. Q. You recall that? A. Yes.
[46] D.A.’s testimony that she had no interest in M.G. before the first date and that she had not spoken to C.I. about him until after the date is difficult to reconcile with C.I.’s evidence on these points. They are not peripheral inconsistencies. D.A. characterized her interactions with M.G. in or around the material time of the alleged sexual assault in a much different way than C.I. remembered them. This contributes to my finding that it would be unsafe to rely on D.A.’s testimony to convict M.G. of sexual assault.
[47] In addition to the concerns I have identified with respect to D.A.’s evidence, I have considered M.G.’s evidence in the context of all of the evidence. There was nothing in the substance of M.G.’s evidence or the way he testified that caused me to disbelieve his evidence. I found M.G. to be a witness who did his best to recall what had occurred about nineteen years earlier. The essence of his evidence regarding the first date with D.A. was that they went to a park, had a drink, talked and then he drove her home at the end of the night. The night ended with a cordial kiss, either on the cheek or on the lips. He denied D.A.’s allegation of sexual assault.
[48] Crown counsel asked me to reject M.G.’s evidence on the basis that it lacked detail, especially when compared to D.A.’s testimony. The Crown pointed out that M.G. was able to recall the details of other events that happened during their three-year relationship, however, in contrast, details regarding their first date were sparse.
[49] The Crown submitted that it was particularly troubling that M.G.’s testimony lacked detail about the kiss that he said happened at the end of the date. For instance, M.G. could not say who initiated the kiss; whether it was he who leaned in to kiss D.A., or D.A. who leaned in to kiss him. Furthermore, M.G. could not say whether the kiss was on the lips or on the cheek. Crown counsel argued that, in his police interview with Detective Culp, M.G. implied that he kissed D.A. on the lips. His testimony at trial that the kiss may have been on the cheek was a change in his story and an attempt to put himself in a more favourable light with the Court. Crown counsel also pointed to the fact that M.G. could not recall D.A. asking him to kiss her and suggested that the kiss was not consensual.
[50] It is understandable that, with the passage of nearly two decades, M.G. might not recall the details of what was discussed at the park, or whether the kiss at the end of the night was on the lips or on the cheek. I did not view M.G.’s trial testimony that the kiss may have been on the cheek as materially inconsistent with what he told the police detective. Nor do I find that it was an attempt to minimize the kiss. Rather, as I have said, M.G. appeared to be doing his best to recall something that had occurred many years earlier. M.G. agreed with Crown counsel that he could not recall D.A. asking him to kiss her at the end of the date. I reject the notion that, therefore, the kiss was not consensual.
[51] It is not my task as the trier of fact to determine which of two versions of an event is true [9]. Rather my task is to assess the accused’s evidence in the context of the evidence as a whole to determine whether the Crown has met its burden of proving the elements of the offence beyond a reasonable doubt.
[52] Crown counsel urged me to rely on R. v. J.J.R.D. [10] to convict M.G. even if there is nothing in the substance of his evidence or in the manner in which he gave his evidence that would cause me to disbelieve his evidence. This is not a case in which I can outright reject M.G.’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” due to the credibility and reliability concerns I have identified with D.A.’s evidence and the conflicts between her evidence and the evidence of C.I.. M.G.’s testimony that the first date ended cordially with a kiss, his denial of the sexual assault, and the frailties in the Crown’s evidence, have left me in a state of reasonable doubt.
[53] I heard evidence from both D.A. and M.G. about the three-year relationship that followed the alleged sexual assault. The relationship evidence played no part in my decision to acquit M.G..
[54] The Crown brought a pre-trial application seeking to adduce evidence from D.A. about why she started and continued a three-year relationship with M.G. after the sexual assault that happened on their first date. The Crown abandoned its application when Defence counsel undertook not to cross-examine D.A. on this issue.
[55] Defence counsel honoured his undertaking not to cross-examine on the issue. However, during cross-examination, in response to an unrelated question from Defence counsel, D.A. volunteered the following explanation for starting and continuing a relationship with M.G. after the sexual assault:
…I’ve just done this with this man, which is incredibly out of character for me, I would not, for religious reasons, I would not sleep with someone or have sex with someone prior to marriage, so I thought, so, the premise was if I am in a relationship with this person, makes it less guilty, less abhorrent.
[56] Evidence that M.G. and D.A. had a relationship after the alleged sexual assault does not demonstrate that the sexual assault did not occur. As the Ontario Court of Appeal has cautioned, “[d]ifferent people will react differently to the same event” [11]. There may be many credible reasons why one who has complained of sexual abuse would continue a relationship with the perpetrator [12]. Recently, in R. v. J.C. , the Ontario Court of Appeal re-iterated that “ it is a myth or stereotype that a complainant would avoid their assailant or change their behaviour towards their assailant after being sexually assaulted, and it is an error to employ such reasoning [citations omitted]” [13]. However, in R. v. L.S. , the Ontario Court of Appeal held that it is open to the Defence to argue that the fact that the relationship did continue is evidence that the sexual assault did not occur [14].
[57] In his closing submissions, Defence counsel did not ask me to discount D.A.’s credibility because she began and continued a relationship with M.G. after the alleged sexual assault, nor did Defence counsel argue that the fact that the relationship did continue is evidence that the sexual assault did not occur. I have not used the evidence of the relationship between D.A. and M.G. for either purpose. On the facts of this case, and by implicit agreement between the Crown and Defence, it is a neutral fact.
Conclusion
[58] I find M.G. not guilty of the sexual assault charge.
Released: March 19, 2021 Signed: Justice J.P.P. Fiorucci
Footnotes
[1] On March 9, 2021, I found M.G. not guilty of the sexual assault charge and advised that written reasons would follow. These are my written reasons.
[2] , [1997] 3 S.C.R. 320 (S.C.C.) .
[4] R. v. Challice , [1979] O.J. No. 1301 (Ont. C.A.), at para. 38 .
[5] The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at pg. 47 .
[6] R. v. H.(S.M.), 2011 ONCA 215 .
[7] R. v. Thomas , 2012 ONSC 6653 , [2012] O.J. No. 5692, at para. 23 .
[9] R. v. T.A. , 2020 ONCA 783 , at para. 28 .
[10] R. v. J.J.R.D. (2006) , 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused 2007 CarswellOnt 3049 , 2007 CarswellOnt 3050 , [2007] 1 S.C.R. x (note), [2007] S.C.C.A. No. 69, 217 C.C.C. (3d) v , 239 O.A.C. 197 (note) .
[11] R. v. L.S. , 2017 ONCA 685 , at paras. 88 and 100 .
[12] R. v. E.C.S.P. , 2003 MBQB 93 , paras. 34-36 .