R. v. C.I., 2021 ONCJ 43

Date: January 25, 2021 Information No.: 19-8672

Ontario Court of Justice (at St. Hamilton, Ontario)

Parties

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

C.I.

Counsel: Ms. R. Branton for the Crown Ms. L. Wilhelm for C.I.

Before: J.S. Nadel J.

An order has been made under s. 486.4 directing that any information that could identify the complainant, M.P., shall not be published in any document or broadcast or transmitted in any way.

Reasons for Judgment

Introduction

[1] C.I., currently 31, and M.P., currently 25, were in an intimate relationship. They lived together from near the end of 2017 until July 9, 2019, when M.P. left the home that they shared at […] Street in Hamilton. On August 4, 2019, M.P. approached the Hamilton Police Service to make a complaint about C.I.’s actions towards her. As a result of the investigation initiated by her complaint, C.I. was charged with the following counts:

[i] criminally harassing M.P., contrary to s. 264(3) of the Code, by repeatedly contacting her in the period from July 8, 2019 (sic) to July 12, 2019;

[ii] sexually assaulting M.P., contrary to s. 271 of the Code, during the period between December 1, 2017 and July 8, 2019;

[iii] assaulting M.P. with a rope, contrary to s. 267(a) of the Code, during the period December 1, 2017 and July 8, 2019;

[iv] assaulting M.P., contrary to s. 266 of the Code, during the period between December 1, 2017 and July 8, 2019; and,

[v] sexually assaulting M.P. using hot sauce, contrary to s. 272(1)(a) of the Code, during the month of October of 2018.

[2] In support of these allegations Ms. Branton called:

• M.P.;
• A.E., a tenant of […] St., during October of 2018;
• H.S., a tenant of […] St., during October of 2018;
• T.W., M.P.’s best friend and housemate for a time after July 9, 2019;
• A.C., a co-worker of both M.P. and C.I.; and,
• the recording of C.I.’s police interview.

[3] In addition, M.P., T.W., and A.C. produced or identified electronic correspondence received from and, in the cases of T.W. and A.C., that they exchanged with C.I. Finally, in addition to the recording of his police interview, a transcript of C.I.’s police interview was exhibited, to facilitate ready reference to the questions and answers in that interview.

[4] Identity was conceded as was the voluntariness of C.I.’s police interview. Last, I note that the need for any hearing to authenticate electronic documents was waived by the defence.

A Thumbnail Sketch of M.P.’s Complaints

[5] M.P. met C.I. by happenstance when they both lived in the same apartment building. They dated, quickly became a couple and moved in together. During their relationship M.P. believed that she had good cause to think that C.I. was being unfaithful to her. Those fears caused her to attempt to find proof by surreptitiously checking C.I.’s facebook account in October of 2018. That effort led to count five on the information which was referred to in this trial as the hot sauce incident and which is described in more detail later in these reasons.

[6] In addition to that count, M.P. alleged that C.I. forced her to engage in several acts of fellatio and multiple acts of intercourse over the course of their cohabitation. The forced fellatio would be initiated by C.I. when she was awake. The forced vaginal sexual intercourse would often be initiated when the couple went to bed – “We’re going to do this” – and sometimes it would be initiated by him while she slept. Regardless of the circumstance M.P. said that sex would occur without her consent. She alleged that both forced fellatio and forced intercourse occurred in the early morning hours after the hot sauce incident, too.

[7] In addition, she complained that C.I. would often whip her buttocks with his belt or with a rope, without her consent. She said that she would object and cry, but he would laugh at her, call her names and continue the assault. Eventually, she began to avoid disrobing in his presence as the sight of her in her panties or nude below the waist would incite that kind of behaviour by him.

[8] Finally, there was at least one discreet act of a choking nature independent of these other complaints and on one or two occasions he bit one of her buttocks leaving a bruise. All of these applications of force were non-consensual.

[9] The first count on the information, the charge of criminal harassment, relates to C.I.’s efforts to contact M.P. after she fled from their relationship on July 9, 2019.

The Submissions of Counsel

[10] Rather than reproducing a fulsome sequential review of the evidence, I propose to go directly to the submissions of counsel. During that review, I shall refer to the testimony of the witnesses or the exhibits, as required.

The Crown’s Submissions

[11] Ms. Branton began with a brief review of some of the law applicable to cases involving allegations of sexual assault; principles that caution against, among other things, erring by falling prey to myths and stereotypes. Ms. Branton began here because, to her ear, some of these mythical or stereotypical tropes had been hinted at during M.P.’s cross-examination. In addition, Ms. Branton was concerned lest Ms. Wilhelm voice concerns respecting the timing of the disclosure of the complaints as having some bearing on M.P.’s credibility. Ms. Branton was anticipating a defence submission that these criminal complaints were only initiated after an earlier attempt to have C.I. fired by their mutual employer failed. Additionally, the Crown was concerned that the defence might urge that M.P. is a woman scorned, a jilted lover seeking payback and hence incredible.

[12] The first case I was reminded of was R. v. D.D., 2000 SCC 43, [2000] S.C.J. 44 (SCC) at paragraph [65]:

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a 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 delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[13] Next, Ms. Branton reminded me of R. v. G.(A.), 2000 SCC 17, [2000] S.C.J. 18 (SCC) at paragraphs [2] and [3]:

2 This Court has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts' truth-finding function. …

3 Our Court has rejected the notion that complainants in sexual assault cases have a higher tendency than other complainants to fabricate stories based on "ulterior motives" and are therefore less worthy of belief. Neither the law, nor judicial experience, nor social science research supports this generalization. …

[14] Ms. Branton then highlighted the error of concluding against the credibility of a complainant who doesn’t disassociate from an abuser, an error identified and cautioned against in R. v. A.R.J.D., 2018 SCC 6, [2018] S.C.J. No. 6 (SCC):

1 The appellant was acquitted at trial of three sexual offences alleged to have been committed against his stepdaughter when she was between the ages of 11 and 16. A majority of the Court of Appeal of Alberta allowed the Crown's appeal. The appellant now appeals to this Court as of right.

2 We would dismiss, substantially for the reasons of the majority of the Court of Appeal. In considering the lack of evidence of the complainant's avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant's credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law. …

[15] Last, on this point, Ms. Branton referenced R. v. Seaboyer, 1991 SCC 76, [1991] S.C.J. No. 62 (SCC) where the court outlined several myths and stereotypes that might, consciously or not, infect a factfinder’s conclusions. Two were, in the Crown’s view, hinted at by certain lines of cross-examination: viz.; first, that women are fickle or full of spite, which provides the motive for their incredible complaints and second, that a woman could prevent any alleged assault if she actually wanted to by fighting hard enough to do so. [1]

[16] Ms. Branton made clear that she was not relying on “an absence of motive” to bolster the credibility of M.P. Rather, she submitted that the defence attempts to raise a motive to fabricate were not borne out by the evidence. The Crown submitted that M.P. credibly testified that C.I.’s faithlessness to her had no bearing on her police complaints or on her complaint to their mutual employer about having to continue working with him. The Crown’s contends that both defence allegations of a motive to fabricate these complaints are without evidentiary foundation and that neither suggestion had any bearing on the timing of M.P.’s disclosure to the police.

[17] In the Crown’s view, while M.P. did wish for C.I. to be fired, that was understandably and reasonably explained by the fact that M.P. was the victim of domestic violence at his hand and the fact that he was also her co-worker. Beyond that there was no probative value to her complaint to their mutual employer. There was nothing nefarious in that complaint.

[18] In support of that submission, Ms. Branton points to the limited factual disclosure that M.P. made to her employer about the extent of the domestic violence she alleged. The Crown submitted that if M.P. was pursuing some ulterior motive or purpose in making these complaints to their mutual employer then she would have expanded upon the complaints and told the employer about the “hot sauce” incident, which was the subject of much of the evidence, and which is thumbnailed below.

[19] Ms. Branton then turned to the subject of inconsistencies and submitted that none of the inconsistencies between M.P.’s evidence and the evidence of the two tenants of […] Street are matters of substance that ought to weigh against M.P.’s credibility or cause me to have a reasonable doubt about C.I.’s guilt for the “hot sauce” assault, which is the basis for count five in the information.

The Hot Sauce Incident

[20] Briefly stated, M.P. testified that in about mid-October of 2018 she tried to access C.I.’s facebook account to see if he was being unfaithful to her. When C.I. received a security notice of an attempted entry into his account, she lied to him and said that she had not been the culprit. When she finally admitted to having done so he got very angry with her. He became verbally abusive and then physically assaultive. He made her get naked, hog-tied her and forced hot sauce into her mouth and then taped her mouth shut with painters’ tape. As she tried to spit the hot sauce out the painters’ tape came off and what she spewed out got into her eyes. She managed to free her bonds and rushed naked to the only bathroom in the home. She was seen there by A.E. and H.S. to be in terrible pain, but she was not naked.

[21] While A.E. gave M.P. some cortisone cream to alleviate her burns, she and H.S. also forced C.I. to take M.P. to a hospital, failing which A.E. threatened to call the police to report the event. When C.I. and M.P. returned to […] M.P. was exhausted and in real discomfort. M.P. also had to work at a new job that coming morning. Despite her condition and need to sleep she alleged that C.I. forcefully made her fellate him and then forced her to submit to vaginal intercourse.

[22] There were inconsistencies among the evidence of M.P., A.E. and H.S. Crown submitted that any inconsistencies between M.P.’s recounting of that incident and the recollections of the other two were not material and do not strike at the heart of the allegations or the essential elements of count five. Further, any inconsistencies among the witnesses can be attributed to the passage of time from the event, which occurred in mid-October of 2018. Moreover, the event was very traumatic. It caused M.P. excruciating and literally blinding pain as the hot sauce got into her eyes and onto her skin. She appeared to have sustained a chemical burn, in H.S.’s view. [2]

[23] It is uncontroverted that she and C.I. subsequently left the house to go to a hospital. In these circumstances the Crown submits that details about when she got dressed to do so are inconsequential. In the Crown’s submission M.P.’s inconsistency about the state of her clothing is not an important element of her testimony. However, as I noted to Ms. Branton, the tenants were not in pain when they made their observations and so M.P.’s recollection of what seems to me to be a significant detail is wrong.

[24] In support of her position that not all inconsistencies need to be resolved, Ms. Branton referred to R. v. M. (A.), 2014 ONCA 769, [2014] O.J. No. 5241 (C.A.), where Justice Watt wrote at paragraphs [13] and [14]:

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

14 … A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[25] Ms. Branton urges that this nakedness issue is a peripheral matter, since M.P. was certain about what C.I. did in to her in their bedroom. While the court did not hear when she got dressed, that gap in recollection does not rise to the level of materiality, despite her statement to the police, made in August of 2019, in which she maintained that she was naked in the bathroom.

[26] In response to the obvious difficulty that I was having with this inconsistency during Ms. Branton’s submissions given the evidence of the two tenants, Ms. Branton reviewed several the observations made by those witnesses that were corroborative of M.P.’s evidence.

[27] A.E. testified that she and her spouse, H.S., were in their room opposite the bathroom on the second level of the house. They heard C.I. and M.P. arguing and involved in a commotion in their bedroom beneath them on the first floor for some time before A.E. heard M.P. screaming. According to A.E., they did not open their bedroom door for perhaps ten minutes despite the screaming. Hence, there were periods of time not accounted for in the tenants’ evidence and hence time for M.P. to get dressed.

[28] Madam Crown pointed to similar evidence given by H.S., of a domestic fight going on beneath them, but his recollection of time frames was inconsistent with that of his spouse. Nonetheless, both tenants were consistent in recounting blood curdling screams and the presence of burns to M.P.’s face.

[29] Ms. Branton’s position remained that not every inconsistency is material and this one is not. Further, not every inconsistency needs to be resolved by the court and this one need not be. Finally, and in any event, the time frames being testified to are unclear so there was time for M.P. to get dressed if she was wrong in saying that she ran naked to the bathroom.

[30] Importantly, the evidence of A.E. and H.S. about a domestic fight being overheard by them and their evidence of seeing M.P. injured and in pain in the bathroom is corroborative of M.P.’s testimony about what C.I. did to her.

[31] Equally importantly, their evidence does not corroborate any of the various versions of these events given by C.I. Their evidence of a domestic fight is inconsistent with C.I.’s police interview where he denied any domestic fights and where he denied forcing hot sauce into M.P.’s mouth at the […] Street address. Their evidence is also inconsistent with C.I.’s statement that the couple had willingly consumed hot sauce together at a different address. Finally, their evidence is inconsistent with C.I.’s alternative explanation given to A.C., via facebook messenger, that they were playing a game involving ropes and hot sauce at the […] Street address and that each willingly ingested hot sauce by their own hand.

[32] As noted by Ms. Branton, M.P.’s demeanour as witnessed by A.E. and H.S., is corroborative of her evidence that she had been assaulted with hot sauce and that evidence of demeanour corroborates her version of the events. In support of that submission Ms. Branton referred to R. v. R. (P.), 2014 ONCA 757, [2014] O.J. No. 757 (C.A.) at paragraph [5]:

5 … In particular, the trial judge found that when the complainant returned to her friends at the Subway restaurant following her brief visit to the appellant's apartment, she was in a state of upset and distress. It was open to the trial judge to conclude that the complainant's demeanor within minutes of the encounter at the apartment was entirely inconsistent with the appellant's claim that they had engaged in consensual sex and that when the complainant left his apartment she was not upset.

[33] Finally, before moving on to a review of the evidence, Madam Crown directed me to two final principles. Referring first to R. v. Hull, 2006 ONCA 26572, [2006] O.J. No. 3177 (C.A.) Ms. Branton very fairly cautioned me not to make this a credibility contest but to consider C.I.’s statement in light of the whole of the evidence:

5 W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[34] Second, Ms. Branton reminded me that while corroboration of M.P.’s testimony is not required, there is corroborative evidence respecting count five, (some of which has already been referred to), along with admissions made by C.I. that will be referred subsequently, which corroborates the assault with a weapon count, too.

The Crown’s Review of M.P.’s Evidence

[35] The Crown then moved to reviewing C.I.’s evidence at this point in its submissions. I feel that it is useful to set out the Crown’s submissions respecting M.P.’s evidence, and other evidence corroborative of her evidence, first. The Crown began that portion of its submissions with count five – sexual assault with a weapon – the hot sauce incident.

[36] Ms. Branton identified the elements of that offence as being: (i) the intentional application of force to M.P.; (ii) without her consent; (iii) that C.I. knew that what he was doing was non-consensual; (iv) that he did so in circumstances where he was not lawfully justified in law in doing so; (v) that his intentional application of force was of a sexual nature; and, (vi) that he used a weapon in the course of this application of force.

[37] Ms. Branton noted that the sexual nature of the hot sauce incident as described by M.P. assault is proved by admissions made by C.I., that the use of ropes with M.P. was a sexual act for him. Equally, if I accept M.P.’s evidence that C.I. forced her to take her clothes off, that too would satisfy the requirement to demonstrate the sexual nature of the assault. [3]

[38] The couple were in a relationship from a point in December of 2017 to July 9, 2019. During a portion of that time, they cohabited at […] Street in Hamilton, where they shared the only bathroom with other tenants. They had a private bedroom on the ground floor.

[39] I have provided a review of the hot sauce incident as testified to by M.P. above, beginning at paragraph [20]. It was a Wednesday in the middle of October and the day before M.P. was to start a new job with Garden Grove, a landscaping firm.

[40] As noted, M.P. denied being the person who tried to access C.I.’s facebook account. She said she denied doing so because she feared his reaction if she owned up to having done so. When she persisted in her denials the issue became very contentious between them. When she finally admitted to being the culprit C.I. became even angrier and abusive towards her.

[41] M.P. said that the abuse was initially verbal. He began with name calling but then began to denigrate her and she became very frightened. He said that she was isolated, that she had no where to go, that she was stuck there; that no one loved her and that she deserved to have her dog die.

[42] She said that her apologies had no effect on his anger and that he tied her up and forced hot sauce into her mouth.

[43] Ms. Branton submitted that M.P. gave a cogent and detailed account of her ordeal including the facts that C.I. began to force her to disrobe resulting in her submission to his demand. She described being forced to the floor, being held down by his foot on her back and having her ankles and wrists hog-tied together. While in this helpless state she was forced to ingest what was identified by H.S. as a habanero pepper hot sauce. Having had the sauce forced into her mouth C.I. then taped her mouth shut with green painters’ tape despite her struggles. C.I. ordered her to stop struggling. M.P. said, and I accept that testimony, that none of this was done with her consent.

[44] On M.P.’s evidence C.I. is a foot taller and 50 pounds heavier than her.

[45] M.P.’s evidence was that she was screaming for him to stop this attack without success. Her evidence on this point is corroborated to this extent, that both upstairs tenants heard a domestic argument and a commotion occurring beneath them before they heard M.P.’s agonizing screams.

[46] While the evidence about the shape of the bottle of hot sauce that C.I. used was not consistent among the three witnesses, (M.P., A.E. and H.S.), the Crown’s submission was that these variations of description are inconsequential. As noted later, Ms. Wilhelm takes a contrary view submitting that if the bottle’s neck was too narrow to accept a spoon, as the tenants’ evidence suggest then, a significant factual elements of M.P.’s version is contradicted. I disagree.

[47] I am of the view that the shape of the bottle is of no real consequence. That there was a bottle of very powerful hot sauce in the house is not contested. More importantly, I accept M.P.’s evidence that she was forced to ingest it by C.I. I believe her when she says that he forced a spoonful of the stuff into her mouth. I believe her when she says she tried to spit it out and that she was able to do so when the painters’ tape came off. I believe her when she says she spewed it everywhere and some got into her eyes and burned her skin.

[48] As Ms. Branton noted, this assault caused M.P. to experience excruciating pain. She cried out in anguish and her cries where heard by A.E. and H.S. A.E. said the only other time that she had heard such pain came from her own mouth when she suffered a broken wrist. M.P. said she cried out because the pain she was feeling was like being swarmed by bees.

[49] M.P.’s evidence is further corroborated by the two tenants who heard her in the bathroom trying to flush out her eyes with her head down in the bathroom sink near the faucet as described by H.S. Both tenants also saw how red, swollen and burned her skin looked and how she was having difficulty opening her eyes. There is no controversy about that, and their testimony is corroborative of M.P.’s.

[50] A.E.’s evidence is particularly damning in that she said C.I. did not appear to be very helpful to M.P. and that he only agreed to take M.P. to the hospital when she threatened to call the police if he did not.

[51] Contrary to the defence submission, (that the reason M.P. could not explain how she managed to free herself from her ankle bonds was because there were no ankle bonds), the Crown urges that while M.P. can’t say how she was able to free herself, she clearly did. The Crown’s point being that some lack of detail or precision of recollection is consistent with the traumatic nature of the event.

[52] In addition, a number of other elements of what M.P. described were confirmed and admitted to by C.I. in statements that he made to A.C., including that they did go to a hospital, that she felt too weak to walk the halls of the hospital and that he pushed her into the hospital in a wheelchair, and that they did not stay to be seen because M.P. wanted to go home.

[53] The Crown’s submission is that this sexual assault with hot sauce was a punishment inflicted by C.I. because M.P. had lied to him. I agree. First, M.P. testified that on the way home from the hospital C.I. asked her if she “had learned her lesson” and he exacted her commitment not to lie to him again. I accept that evidence. In addition, A.E. told me that as M.P. was trying to wash away her injuries in the bathroom, she heard C.I. saying things to M.P. like, “This is what you get” and “You deserve this.”

[54] While the evidence of the two tenants was not identical and diverged in several respects, they corroborate that an assault with hot sauce occurred.

[55] Most of this trial was taken up with the hot sauce incident but M.P. testified to a number of other sexual and other assaults committed against her by C.I., which Ms. Branton reviewed.

[56] M.P. said that when they returned from the hospital, she was very tired, still in pain and wanted to go to sleep because she was to start a new job the next morning. Despite her desire to do nothing but go to bed, C.I. forced her head onto his penis to make her fellate him and then he forced her to submit to sexual intercourse.

[57] She testified that on several other occasions he wanted to be fellated and she did not want to do so and on those several other occasions he forced her to. She described how he did that. He would straddle her by sitting on her chest area and then using his knees he would pin or lock her arms up beside her head and then force his penis into her mouth.

[58] In addition to these several acts of forced fellatio, M.P. said that he would often want to engage in sexual intercourse when she did not want to do so. She testified that this happened so frequently that she could not provide specific times or dates but that it was a fixture of their relationship.

[59] M.P. said that C.I. would often wake her up to have sex or would try to initiate intercourse as they went to bed. If she did not want to have sex and say no, he would not accept it. He would ignore it and say “No, we’re doing this” and then proceed to force her to submit.

[60] There was another form of regularly occurring abuse in their relationship that she described. M.P. testified that when she was only wearing panties or was naked below the waist, C.I. would often whip her with a belt or a rope. She objected to his doing so but he persisted despite her objections. His actions would often make her cry and she would cower away and sometimes curl up in a fetal position to avoid being struck. This kind of response amused him and made him laugh and he would call her a baby. This whipping behaviour became so frequent that she began to avoid getting undressed in front of him and would try to avoid him.

[61] As noted and quoted subsequently, C.I. effectively conceded behaving like this. These were sexual acts for him despite no intercourse occurring.

[62] M.P. identified one particular act of non-sexual assaultive behaviour that she recalled, when for no purpose that she could ascertain C.I. pushed her against a wall and squeezed her neck for about five seconds for no reason, while they were descending the stairs. This, she said, happened in May of 2019. While not admitting this specific incident, C.I. did email T.W. on July 10, 2019 at 6:31 p.m. This email is part of Exhibit 4. In it he wrote, inter alia, “…However, aside from a couple incidents that we have had, we truly did not have a physically abusive relationship. …” This admission is as least slightly corroborative of M.P.’s complaint of an assault level one.

Criminal Harassment

[63] This count is based upon C.I.’s repeated attempts to contact M.P. after she moved out without any prior notice to him on July 9, 2019. She said that her departure was prompted by an act of faithlessness to their relationship that she observed in real time on his facebook account, which he had left unlocked.

[64] Six emails that C.I. sent to her were Exhibited as No. 2. The few emails that he sent to her close friend, T.W. were Exhibited as No. 4. T.W. said that he contacted her up to 30 times via various media over a three-day period in his attempt to contact M.P.

[65] M.P. said that she received perhaps 100 telephone calls from him or from an unknown caller after she blocked his known number, again over a three-day period. She answered none of them.

[66] C.I. in his police statement conceded that his attempts to contact M.P. were excessive. Given the number of these contacts or attempted contacts and C.I.’s concession that his attempts to contact M.P. were excessive, the requirement to prove “repeatedly communicating” was easily proved, (although I do not make a finding that he actually called M.P.’s telephone number 100 times. In my view that is a number pulled out of the air. No actual record was apparently kept.)

[67] None of the written entreaties contained any harassing words or threats.

[68] M.P. testified that the reason she did not read any of the emails that C.I. sent to her was that she was afraid that if she read them she would be manipulated into being drawn back into a relationship; she feared reconciling with him and returning to the relationship.

[69] In Ms. Branton’s submission that fear was reasonable because, while M.P. did not say this, it ought to be understood that she did not want to reconcile because she was afraid of being subjected to further assaultive behaviour.

The Defence Submissions on the Criminal Harassment Count

[70] Ms. Wilhelm accepts that the volume of actual or attempted contact is sufficient to make out one aspect of the charge. That said, the defence submits that the Crown’s proof in two areas on this count fails. First, the evidence does not demonstrate to the requisite degree that C.I. knew or was he reckless about whether M.P. was being harassed by his attempted communications. Second, the evidence fails to sufficiently demonstrate that M.P.’s fears were reasonable.

[71] The defence says that those two issues must be viewed against the backdrop in which the attempted communications were occurring: viz., that M.P. left the home and the relationship without a trace; that that morning the couple woke up in a subsisting domestic relationship and when he left there was no hint that when he came home his partner would be gone. That is the backdrop against which the court must determine if the crown has made out his mens rea to the level required for a finding of guilt.

[72] Ms. Wilhelm stresses that the written exhibits demonstrate a lack of knowledge in C.I. about what was happening; about what was going on. Further, she points out that the communications are neither harassing nor threatening in their content. Rather, there are two aspects to them: first, inquiring about what is happening and trying to figure out what is going on; and, second, fearing the worst and making entreaties to reconsider and reconcile and take him back.

[73] It must also be born in mind that this was the second time that she had left him. On the first occasion, much like this, in January of 2019 he persisted in trying to communicate with her and he was successful in convincing her to give their relationship another chance. His efforts worked and they reconciled; she came home and unpacked her car and moved back in. So, the defence submits that that experience informs his knowledge of whether his efforts would be perceived as harassing or fear inducing.

[74] Given that prior experience this was clearly, at worst, an intention to reconcile and not to harass; that he did not intend or know that it would be perceived as harassing and he was not reckless about whether it would be viewed that way.

[75] While 100 calls would seem on its face to be harassing his intention has to be analyzed in the light of his previous experience in this relationship in not too dissimilar circumstances. Doing so, it is submitted must raise a reasonable doubt. Moreover, when he does get a clear indication from T.W. that it is over, he stops trying to contact M.P.; he stops trying to effect a reconciliation.

[76] This is not the kind of case where the police tell him his efforts are unwanted, where he is directed to stop and does not. And, this is not the kind of case where the contact or attempted contact is abusive, where it is patent that the contact is intended to be harassing and intended to evoke fear.

[77] Beyond that, the defence submits that there is no basis for a reasonably held subjective fear on M.P.’s part as a result of this attempted communication. Her evidence was clear; her fear was grounded in fearing that she would succumb to his entreaties and be manipulated back in to the relationship. She said so expressly. That is what she was afraid of. In the defence’s submission that is not the mischief aimed at by the section, fearing that she might get pulled back into a relationship she no longer wanted to be a part of.

[78] There were no threats of violence and no intimidating or harassing comments in these communications, despite their number. They stopped without police involvement.

[79] It is Ms. Wilhelm’s submission that the Crown’s theory of M.P.’s fear – a fear not voiced by M.P. when she was testifying – is too remote to ground culpability on this count. Bearing in mind the presumption of innocence I agree. On these facts, the fear required to be caused by the behaviour said to be harassing is too remote and too weak on a causal basis to meet the elements of the offence.

[80] For the reasons advanced by the defence, as set out in this section of these reasons, count one on the information is dismissed.

The Crown’s Submissions Respecting C.I.’s Evidence

[81] Ms. Branton noted that C.I.’s evidence is “littered” (sic) throughout the case in the form of his police interview, emails and other social media messages that were exhibited. Ms. Branton stressed that the information that he provided in these various forms was internally inconsistent when compared with what he said at other times. What C.I. said in his police interview is also inconsistent with other credible evidence, external to that interview.

[82] Given those inconsistencies the Crown submits that C.I.’s evidence ought to be rejected when the court undertakes the required W.D. analysis. [4]

[83] The Crown began this submission by pointing to four blanket denials that C.I. made in his September 9, 2019 police interview. [5] Those four blanket denials covered:

1. a complete denial of the hot sauce assault;
2. a complete denial of ever having taken M.P. to a hospital;
3. a complete denial of ever having whipped M.P.; and
4. a denial of recognizing the name of his tenant H.S..

[84] I note here that Ms. Wilhelm concedes that these four blanket denials are, based on the evidence, obvious untruths.

[85] While those were the items pointed to by the Crown as being inconsistent with other statements that C.I. made or inconsistent with other credible evidence, I have produced a more fulsome list of C.I.’s denials from that police interview. [6]

[86] On the Nature of Their Relationship

“As far as I understood, we had a good relationship the entire time.” (p. 6) “And she was a good part of my life, and I’m really thankful for that time together.” (p. 11)

[87] In contrast to the foregoing comments, C.I. emailed M.P. on July 10, 2019 at 8:32 a.m. and said:

“I’m sorry for anything I’ve ever done to you. You mean everything to me. I wish I could take back the harsh words that I said to you yesterday. … I have learned my lesion on how bad it is to have this “friend” in my life. I don’t want that or anybody else come in between us.”

[88] At 8:41 a.m. he wrote again saying, among other things:

“… I don’t want to continue down this bad path where I mistreat you, and tell you bad shit just because I’m feeling shitty inside. I feel shitty on the inside for completely different reasons than you. If I get stressed by you it’s like the cherry on top, and I’m not expressing those feelings constructively. …I want to make more of an effort in this relationship.”

[89] At 8:56 a.m. he wrote again saying, among other things:

“…There is more information that I want to share with you regarding my friendship that you don’t approve of. I’ll tell you everything you ask, as well as feelings that I have about it. …”

[90] On the Hot Sauce Incident

“As far as I’m aware, we had a good relationship. We never had any periods where we distrusted each other until the end. I don’t think she ever had any reason to not trust me. I don’t understand any – I can’t really comment further than that. I don’t under stand more of the detail. I … (p. 13) Q. And, you’re saying the hot sauce never happened? A. “No.” (p. 25)

[91] In a lengthy iPhone message sent by C.I. on July 11, 2019 at 8:34 p.m. he told T.W. that he did not think that he and M.P. had a physically abusive relationship although he admitted to being verbally abusive to her. He went on to add: “We did have an occasion which you know of that can be considered as abuse.” T.W. believed that was an admission of the October 2018 “hot sauce” incident that M.P. testified about.

[92] On the Only Admission of Using Hot Sauce

“That was when we were living a […] Road. I was given this hot sauce that was, like supposed to be a good hot sauce to try, and so we both tried it out. We tried it out a little bit. And she didn’t like it. I didn’t like it. It was the last time we ever tried it. And that was, I would say, maybe, maybe spring 2018 possibly. I think spring 2018. That was when, before we moved to […] Street.” (p. 27) “…We both had our own spoon in a little spoon, and we both ingested the spoon on our own accord.” (p.28)

[93] In another very lengthy iPhone message sent by C.I. to T.W. on July 10, 2019 at 6:31 p.m. C.I. said, among other things:

There was an incident that we ingested hot sauce together in a manner that was a bit more intense. I have apologized to M.P. numerous times as she was much more sensitive to the situation, and to this day haven’t made it up to her enough. However, aside from a couple incidents that we have had, we truly did not have a physically abusive relationship. …”

[94] On Using Force in Removing M.P.’s Clothing During the Hot Sauce Incident

“No. there was never force, never. … Never force in any of our interactions. We always had a good relationship.” (p. 13)

[95] On the Use of force in Hog-tying M.P. During the Hot Sauce Incident

“It’s not true. … Not ever happened.” (p. 14)

[96] On Putting Hot Sauce into M.P.’s Mouth and Taping Her Mouth Closed

“It’s not true.” (p.14)

[97] On Going to the Hospital

We didn’t go to the hospital. … Didn’t go to the hospital. We never … had this event. We never had a need to go to the hospital, except for in the beginning of our relationship, I got very sick.” “… That was the only time we spent time in the hospital together.” (p. 14 to p. 15) Q: And you never went to the hospital for treatment in regards to hot sauce? A. “No.” (p. 25)

[98] On Assault with a Weapon by Whipping M.P.’s Buttocks

“No. That’s not something that was ever an issue or ever happened.” (p. 15)

[99] C.I. said something markedly different to A.C. on July 14, 2019 when they engaged in an extended written exchange. During these exchanges C.I. said:

“Whipping was something that she was also bothered by. Specifically her ass. We spoke about it many times as if it’s something I liked, and was patient with her and put her feelings first. But I had to discover that ropes and whipping were a trigger. There had to be one experience to spark that for me to know. And she’s right. I used a rope and did that to her. This was something that was a problem at the mid point of our relationship, but after knowing M.P.’s sensitivity to rope, I gradually stopped bringing stuff like that into the bedroom”

[100] Later in their conversation the following admissions occurred [7]:

A.C.: Dude your saying these are sexual encounters but M.P. is specifically saying they aren’t….shes been pretty open with me what you guys do in the bedroom and shed adment that these times aren’t sexual….it was you letting your anger out in a flash of rage So. im. gonna ask you one more time….be open with me….I wont judge C.I.: This is exactly why I wanted to have our conversation in a safe place. It’s taking a big hit on me, but I feel myself overcoming the struggle. Im thinking more positively and looking towards the future Anything rope related is 100% sexual in nature for me The whipping didn’t involve penetration or sex, but to me it is a sexual thing. For some reason smacking or whipping her ass turns me on a lot

[101] Some Admissions Made by C.I. During These Communications

A.C.: So you didn’t say “I need to let me anger out” threw her onto the floor….put.your foot on her back….hog tied her and then poured hot sauce on her and sent her to the ER? She cried as she told me this C.I.: No not at all. It didn’t happen like that at all. To be honest I don’t want to share the negativity of what led up to that, but I need to because it help me understand (emphasis added) That entire experience was sexual in nature to me, but when I noticed that she was experiencing pain, everything stopped, I came to her aid and I even took her to the hospital, and not the worry of it they were to involve police over a scenario which was sexual in nature. (emphasis added) A.C.: So you weren’t whispering in her ear what to tell the nurse the entire time? C.I. … I don’t know what to believe man C.I.: To be honest, we got to the ER waited 15 or 20 minutes. We both started to feel better, and she said to just o home I was more focused on her getting better, than the risk of me being put in jail that night My actions after the fact were pure, and reflect that I do feel empathy What happened to lead up to that was there was a guy flirting with her for months, and I saw that things she was saying back were bothering me. I spoke up a couple of times about it, but I didn’t want to control the people she was talking to. One day she told me that she spent time with him and he was visiting her at work. This hurt me a lot. I closed up, closed the door and locked myself in the bathroom. A few hours later Mel came upstairs with some rope and some hot sauce At that point she came upstairs with both of those things, she also apologized and I was ready to talk about how I felt. We talked it out, and i felt stomped the issues that i had Then we went downstairs. That’s when we got into it, and for me it was sexual in nature. I started to tie her up with half hitches, because they come loose if you move your hands. She was not constrained, and could easily come out of the knots. In the past, I use different knots, and they would sinch up and cause pain. To add to the moment, I was saying things that let her know that I was upset. I was hurtful. I thin the most hurtful of all was me saying that her dog deserved more. What went from probably a more positive state, turned to a more negative state from my words. While saying my words, I filled a spoonful of hot sauce, ate it myself, then gave her a spoonful too. Me taking the hot sauce too made me stop saying the things I was saying, but the damage was already done with those words . Almost immediately M.P. spat out the hot sauce and it went everywhere (emphasis added) It went onto her face and all over my body. That is when she started to cry (emphasis added) Immediately, when she started to cry, I dropped everything, grabbed my shirt, a grey T shirt, and put water on it and put it on her face. We went upstairs together and I was trying to ease the burn. Maybe 20 minutes later I asked, or she asked to go to the hospital. I’m pretty sure it was me encouraging it, but I don’t remember exactly So we drove to the hospital. Holding hands, I told that I loved her and that I was upset, and that I didn’t mean for the hot sauce to hurt but with skin exposure in a sensitive area, of course it’s going to hurt . I pushed Mel in a wheelchair as quickly as I could to the ER After waiting for maybe 15-20 minutes. She decided she was feeling better , and I was too. We decided to ho home, and we actually had an amazing connecting night after that. We made love passionately and I held her for the rest of the night. I went into the next day thinking that we made things right together and that things were okay (emphasis added) It took months for her to eventually mention that the hot sauce night bothered her I didn’t realize it cause that much damage until later on I genuinely thought we squashed it and moved forward together

[102] On Forced Vaginal Intercourse Initiated While M.P. was Sleeping

“My libido’s very low. I have doctor proof that I can’t even maintain or achieve an erection. If you’d like to speak to my doctor about that, by all means, like it’s full transparency. That’s not even over the time in our relationship. I’d say 99 percent of the time, any sexual encounter was engaged by her. Never a time where I ever entered her forcefully. I, my libido was so low that I didn’t even consider going down that road, and even her frustration of trying to help me achieve an erection, she gave up numerous times, lots and lots of times, that it became an issue in our relationship about be not being able to fulfill her needs in that way.” (p. 15)

[103] On How Regularly the Couple Would Have Sexual Relations [8]

“Not even once a month; like I would say, if once a month, if that, if I could even get myself hard even for, like a minute or so. And this if, if that. And it’s really embarrassing. I mean, I know, I know. And it’s embarrassing to say. I’m a young man …, but it’s the reality of my body and, well, the chemistry in my body.” (p. 16)

[104] On Other Allegations of Assaultive Behaviour Against M.P.

“…we didn’t have any physical altercations. … None of it, none of it [happened]” (p. 17) That answer can be compared to what was quoted previously at paragraph [62]: “…However, aside from a couple incidents that we have had, we truly did not have a physically abusive relationship. …”

[105] On Not Recognizing H.S.

Q. … Who’s Harold? A. I’m not sure. Q. H.S.? A. I’m not sure. Q. Is he someone that lived with you guys? A. I don’t recognize the name. (p. 28) It should be noted that H.S.’s evidence was that he lived at two addresses as a tenant of C.I. He lived at the […] Road address with his spouse, (A.E.), and then they moved into […] Street as tenants of C.I. According to A.E., she and H.S. moved in to that address about a week before C.I. and M.P. moved in. In addition, H.S. car-pooled with C.I., albeit C.I. was always the driver. As conceded by Ms. Wilhelm, C.I.’s denial of recognizing H.S.’s name was an untruth.

[106] C.I.’s Response to a Portion of H.S.’s Statement

Q. So the question that was posed is, “Can you describe what you observed on October of 2018 between your old roommates, M.P. and C.I.” And he states that, “around 9:00 to 11:00, there was loud yelling. M.P. started screaming, and C.I. became aggressive and loud, telling her it’s her fault.” And he didn’t know what it was all about. “They were yelling about something over facebook. And she came upstairs, washing her face. She was screaming and crying, asking for help. … We helped her into a car, and C.I. took her to the hospital in C.I.’s car. In less than five minutes, they came back. So, I don’t think they even went to the hospital.” A. “I think this statement is something from somebody who is also trying to conspire to go against me. And I feel that this is inaccurate. And I don’t have any more comment on that.” (p. 29)

[107] On Who Lived at […] Street in October of 2018

A. The other two [rooms] were occupied by Patrick Park and Ryan Martin (p. 30) In my view, given the substance of paragraph [105], C.I.’s failure to name H.S. and A.E. as tenants of […] Street is an obvious lie by omission. As noted previously, A.E. and H.S. were tenants of C.I. at his […] Road property before moving into […] Street. According to A.E. they moved in first and C.I. and M.P. moved in about a week later. In addition, H.S. car-pooled with C.I. C.I.’s lies to the police were brazen.

[108] The Crown submits, and I agree, that C.I.’s four blanket denials in his police interview, (listed above at paragraph [83]), are inconsistent with M.P.’s evidence, inconsistent with the evidence of A.E. and H.S. about what happened at […] Street in October of 2018 and inconsistent with many other statements that C.I. made that have been detailed in the preceding review.

[109] A.E. testified that as a result of what she heard and saw in October of 2018 she wanted to call 9-1-1 but did not do so because she was C.I.’s tenant, was impoverished and needed a roof over her head. She feared being evicted by him if she called the police about what was happening that night. She only desisted from calling the police when C.I. agreed to take M.P. to the hospital. H.S. testified that he also insisted that M.P. needed to be taken to a hospital because she seemed to be suffering from a chemical burn.

[110] Additionally, when H.S. demanded an explanation for M.P.’s condition, C.I. tried to explain it away by saying that it resulted from a game that they had been playing. Similarly, M.P. testified that C.I. urged her to tell the medical staff at the hospital that her condition was the result of a game or a kitchen accident.

[111] The Crown’s position is that C.I. is not a credible source of information. It is the Crown’s submission that the contradictions in his accounts entirely discredit him so that any denials of culpability should be rejected when the court comes to the second branch of the W.D. analysis.

[112] His admission that he whipped M.P.’s buttocks, that she was not a consenting party to that behaviour and that he persisted in continuing to assault her with ropes is proof to the exclusion of any reasonable doubt on count three, assault with a weapon. As Ms. Branton noted, he admitted to whipping M.P. with ropes; he admitted that she did not want to be whipped; and, he admitted that he knew she did not want to be whipped. Yet he persisted in whipping her. The fact that he said that he stopped doing so gradually is not a defence. C.I.’s admission to multiple acts of whipping her with a rope is consistent with her evidence. His admission that he gradually stopped that behaviour is consistent with her evidence that to avoid being whipped she avoided being near him in a state of undress that would cause him to engage in whipping her.

[113] It is also noteworthy that his admissions about getting sexually excited by whipping M.P. is inconsistent with and puts the lie to his purported lack of libido.

A Discussion of the Hot Sauce Episode

[114] That there was a hot sauce incident is beyond dispute. C.I.’s lengthy discussion of it with A.C. proves that his denials about it to the police are flagrant lies. His statements to A.C. provide cogent corroboration of much of M.P.’s version of that event. C.I. corroborates that he tied her up, that he fed her hot sauce and that he took her to the hospital. In addition, his evidence about the nature of the event demonstrates that it was a sexual act, albeit also a punishing one.

[115] As noted in Chase the sexual nature of an assault can be objectively determined by considering a host of factors including what is being said while the event is occurring. By his own admission to A.C., (albeit subsequent to the occurrence), C.I. said that the entire act was sexual in nature to him. That it was an act of punishment is corroborated by him, too. He told A.C. that he said hurtful things to her including things about her dog, just as M.P. testified to. In addition, he confirmed to A.C. that this incident was preceded by a domestic argument.

[116] All of these elements corroborate significant aspects of M.P.’s evidence. In addition, the tenants’ evidence of hearing a domestic argument and a commotion downstairs before they heard M.P.’s screams confirms and corroborates her basic narration of the events. Moreover, the evidence of the tenants is inconsistent with C.I.’s tale of locking himself in the bathroom for an extended period of time and of M.P. coming up to the bathroom and bringing rope and the hot sauce with her as peace offering to him. She denied doing so and I accept her denial.

[117] This is not to say that I accept every element of M.P.’s evidence about this incident. As Ms. Wilhelm cogently argued, there one aspect of it that cannot have occurred in the manner described by M.P. I shall come to that submission in due course.

On Returning Home from the Hospital

[118] C.I. says that when they returned home, they had what he termed “an amazing connecting night after that. We made love passionately …” In my view C.I.’s statement is incredible. It is inconsistent with his libido comments from his police statement. Much more importantly his version of that sexual encounter is completely inconsistent with M.P.’s version, which I believe, not only because it rang true as I heard it but equally because it makes sense in all the circumstances.

[119] M.P. was in agonizing pain and needed medical attention because she had been abused by C.I. She received some relief from a cortisone cream that A.E. gave to her before she was driven to St. Joseph’s Hospital in Hamilton. [9] M.P. felt so weak that she had to be pushed down the hospital halls in a wheelchair. When the couple left the hospital after an uncertain period, (but which, I find, was much longer than the five minutes estimated by H.S.), she was tired, still in pain and she wanted to go to sleep.

[120] That she was tired, still in pain and only wanted to go to sleep is not surprising. M.P.’s evidence makes sense to me. She was still in the throes of recovering from the ordeal inflicted upon her by C.I. and she had a new job starting the next morning. Given these circumstances I accept her evidence that she did not want to engage in sexual relations with C.I. I accept her evidence that he forced her to fellate him and then forced her to submit to vaginal sexual intercourse.

[121] I reject his version of those events. I harbour no reasonable doubt about whether he is guilty of committing these two sexual assaults against M.P. when they returned from the hospital.

[122] In closing, the Crown submitted that C.I. corroborated many aspects of M.P.’s description of the hot sauce incident; viz.: that he began it by saying hurtful things to her; that he bound her with rope; and, that he spooned hot sauce into her mouth. [10] All of these admissions corroborate her evidence and enhance her credibility. While the Crown accepted that M.P. could not explain how she was able to extricate herself from her bindings, she clearly did. I note however, that if the answer is that she did so because she was bound with half-hitch knots on that occasion then that is consistent with C.I.’s admission of using that form of binding during this event. Ultimately, in the Crown’s submission, M.P.’s inability to provide that detail is excusable by the excruciating pain that she was suffering from in those moments. Indeed, the Crown submits that her lack of detailed recall of every specific of this traumatic event adds to her credibility.

The Submissions of the Defence

[123] Like Ms. Branton, Ms. Wilhelm began with a primer of legal principles: (i) that C.I. is presumed innocent; (ii) that the onus of proof is on the Crown; and, (iii) that the burden on the Crown is to prove guilt to the exclusion of any reasonable doubt. Ms. Wilhelm stressed that these principles are critically important when issues of credibility are at the forefront of the fact-finding process.

[124] Additionally, I am reminded that it is not the court’s job to solve a puzzle or act as a detective. Rather, my obligation is to determine if the Crown has met its onus to the requisite degree. Ms. Wilhelm reminds me of that principle because it is the position of the defence that there are unanswered mysteries in this case and as is often said, ‘the devil is in the details.’ [11]

[125] Acknowledging that while C.I. did not testify viva voce, she noted that many of his statements are still in evidence and as characterized by her those statements “cut both ways.”

[126] While candidly acknowledging the apparent difficulty of answering to the Crown’s case on the evidence reviewed, Ms. Wilhelm takes the position that there are aspects of the evidentiary record that ought to give the court pause for concern in assessing M.P.’s credibility and reliability despite the evidence that corroborates her testimony.

[127] Ms. Wilhelm submits that the question of what happened to result in her injuries and appearance remains an open one. It is the position of the defence that this is so despite the corroborative evidence of her injured condition. Hence, the issue of proof beyond a reasonable doubt still rises and falls on M.P.’s credibility and reliability, which must be considered when taken together with the weight to be given to the various statements from C.I.

[128] Simply put, it is contended that only the “aftermath” is corroborated but how that aftermath was arrived at relies on M.P.’s testimony. Ms. Wilhelm analogizes to a motor vehicle accident – the aftermath no matter how severe does not imply liability for dangerous driving.

[129] Ms. Wilhelm accepts that on the evidentiary record something took place that resulted in M.P. having hot sauce seep into her eyes and burn her skin. Nonetheless, counsel contends that both the how of what occurred and whether it occurred as a result of any lack of consent on M.P.’s part remain open questions.

[130] As an aside, Ms. Wilhelm reminded me that C.I. is not charged with sexual assault causing bodily harm. Notwithstanding, counsel notes that even when that is the charge before a court, the situation of intentionally causing bodily harm must be distinguished from situations where bodily harm is not intentionally caused but rather occurs as a result of an accident flowing from a consensual act that went awry.

[131] I agree with Ms. Wilhelm that issues in that vein are unnecessary to resolve given the counts before the court. [12]

The “Spectre” of Motive to Fabricate

[132] The defence disputes the Crown’s contention that it is relying on stereotypical or mythological reasoning to arrive at a presumptive conclusion that the complainant had a motive to fabricate her complaints.

[133] On the contrary, Ms. Wilhelm points to several matters firmly rooted in M.P.’s evidence to demonstrate the spectre of a motive to fabricate these complaints; viz.:

• (i) that the couple had an ongoing relationship both before and after the hot sauce incident in a similar fashion to that described in R. v. L.S., 2017 ONCA 685, [2017] O.J. No. 4586 (C.A.); [13]
• (ii) that M.P. believed that C.I. was once again being unfaithful to her, which was the cause of her leaving their relationship on July 9, 2029;
• (iii) that as a result of leaving this relationship, she did not want him to be employed by their mutual employer as his presence there would be uncomfortable to her; and,
• (iii) that, at a minimum, it was possible that her criminal complaint to the police was delayed and only occurred in that delayed fashion when her attempt to get him fired failed.

[134] Ms. Wilhelm expressly acknowledges the impropriety of stereotypical or mythological reasoning to arrive at a presumptive conclusion that M.P. had a motive to fabricate her complaints. Nonetheless, the defence contends that, despite the strictures against stereotypical reasoning, there are multiple inferences that a court can draw from the behaviour of the complainant and that the items bulleted above are not mythological or stereotypical allegations. Rather, they are rooted in the evidence given by M.P. so that the inferences submitted are reasonably available to be drawn.

[135] Counsel noted, for example, that the Supreme Court of Canada’s decision in D.D. does not stand for the proposition that delayed disclosure is never relevant or may never give rise to a negative inference. [14] Accepting that the mere fact of delayed disclosure in and of itself does not give rise to a negative inference, the fact of a delayed disclosure is something that a factfinder can consider when assessing whether a motive to fabricate has been demonstrated. The defence submits that M.P.’s disclosure can be fairly described as “delayed” and that the court can take that into account when considering whether proof to the exclusion of any reasonable doubt has been made out. It is the position of the defence that that same proposition applies when any behaviour that may feed into any mythological or stereotypical conclusion is under consideration. Provided there is an evidentiary basis for drawing an inference on a non-mythological basis fact patterns that may be misused are not precluded from consideration merely because of that risk.

[136] Put differently, reliance on pure stereotypes to draw an inference is impermissible but conduct that may be misused on the basis of stereotypes can still give rise to reasonable inferences if there is a factual basis in the evidence to permit the inference to be drawn. As noted earlier, Ms. Wilhelm points to Justice Doherty’s reasoning in R. v. L.S., 2017 ONCA 685, [2017] O.J. No. 4586 as an example of that principle in action.

[137] I accept and Ms. Wilhelm agrees that any findings of fact that I make and any reasonable inferences drawn from those findings must be rooted in the specific evidence at hand and must not be the product of impermissible reasoning based upon stereotypes or mythologies.

[138] On that basis the defence says there is a motive to fabricate on the facts of this case. But the defence submits that the court does not have to make a formal finding that M.P. had a particular motive to fabricate her complaints or even make a formal finding that there has been express fabrication by her.

[139] Rather, it is Ms. Wilhelm’s submission that there are aspects of the evidence that may give rise to a reasonable doubt in general or a reasonable doubt based upon deficits to the credibility or reliability of M.P. such that the Crown has failed in its burden of proof.

[140] Those evidentiary aspects include more than the bulleted items listed previously but they do include those items. As related by Ms. Wilhelm, ‘the ongoing relationship, the delay of disclosure and the circumstances under which disclosure is ultimately made gives rise to a spectre of motive (to fabricate). … Not once is there disclosure to anyone, not family or friends or police or work’ until after M.P. left on July 9, 2019.

[141] Ms. Wilhelm stressed that these complaints were said to be non-consensual and yet endured by M.P. even though hers was not a scenario where she was under the control of the C.I. either financially or in any other way. She had her own employment, her own vehicle, and she had family and a small group of friends so there was no suggestion that she was under the control of C.I. and unable to leave.

[142] At this point in Ms. Wilhelm’s submissions I interjected to observe that none of the foregoing submission was put to M.P. as a suggestion, so that she was not given the opportunity to provide her response to it. I queried whether I was being asked to draw an inference based upon what amounts to a stereotypical conclusion.

[143] I asked counsel if she was asking me to find that if all that was alleged had happened or was happening no reasonable person would accept being treated that way and would have left and since M.P. did not leave should I then conclude those things that she alleged did not happen?

[144] Counsel’s response was that that conclusion was correct but that drawing that inference was only part of what the defence was pointing to to raise a reasonable doubt. Despite only being part of the defence position Ms. Wilhelm agreed that that was what she was submitting asserting; that that conclusion was an available inference. Nonetheless, counsel appeared to concede that on the evidence other inferences were also available including that when something objectionable happened excuses for it were made or promises would be made to make up for it. Counsel acknowledged that inferences along those lines were also available. I pause to note here that M.P. did appear to be subjugated by C.I. He did say hurtful things to her by his own admission and worse things according to M.P. He told her that she had no where to go, that no one loved her, and she deserved to have her dog die.

[145] Ms. Wilhelm’s submission that while one might conclude that M.P. stayed in an abusive relationship because she loved him or there would be excuses or he would pull her back in, the court should have a doubt about that because of the alternative inference available when one looks at what counsel described as the “arc” of how things played out. [15]

[146] The defence submission is not just that she stayed and therefore the court should find nothing happened. The defence submits that its submission is more nuanced than that; that M.P.’s evidence is a product of multiple factors and not merely because she did not leave the relationship until July 9, 2029. It is not just a matter of her staying.

[147] For example, it is important to note what it was that prompted her to leave. What prompts her to leave is not some alleged abuse, not some alleged assaultive or aggressive incident. Rather, it is, as M.P. conceded, the fact that in the moment, in real time, she sees her suspicions about C.I.’s infidelity playing out. [16] It is his cheating that is the impetus to cause her to pack up and leave. It is not any of the alleged significant abuse leading up to that point. Ms. Wilhelm submits that contrast is stark and that should cause some doubt in my mind about M.P.’s credibility and reliability.

[148] Beyond that, the court must consider how things played out from there. It took just shy of a month, (from July 9, 2019 to August 4, 2019), before she attended at the police to make her first disclosure. The defence contends that this unspooling timeline ought to be a matter of concern. While the defence makes no complaint about the fact that M.P.’s initial disclosure is to friends and while the defence expressly accepts that there is nothing wrong, surprising or unexpected about that, her next disclosure is to her employer and not to the police.

[149] That disclosure sparks an investigation by the couple’s mutual employer that does not culminate in C.I. being fired. The defence suggests that the failure to get C.I. fired is what prompts her complaint to the police. The defence contends that both the sequence of those complaints and the substance of those complaints ought to raise the spectre of a motive to fabricate, which ought to raise a reasonable doubt about her complaints and a reasonable doubt about C.I.’s guilt.

[150] In my view several points need to be addressed here.

[151] First, as Ms. Wilhelm very fairly observed during her submissions, the actual timing of when M.P. learned from her employer that C.I. would not be fired and when she first went to the police is not clearly demarked in the evidence. There is no certainty as to the order of those events.

[152] Second, the complaint that M.P. made to her employer and the behaviour that the employer was investigating was not the assaultive behaviour that M.P. told the police about, i.e., the behaviour that is the subject of this trial. The evidence was that their mutual employer was investigating a work-related assault by C.I. on M.P. In her submissions Ms. Wilhelm suggested that the employer was also considering all of M.P.’s complaints both work-related and domestic. That was not the evidence. In my view that is made clear by C.I.’s comments about that workplace-investigation in his police interview.

[153] Third, while it is true that the mutual employer somehow obtained a copy of the exchanges between C.I. and A.C., how that happened was never identified with any clarity. M.P., T.W. and A.C. all denied giving that material to the employer. [17] A version of what became Exhibit 5 somehow got into the hands of Garden Grove on August 12, 2019.

[154] Fourth, it seems to me to be quite natural that M.P. would be concerned about having to work at the same company as C.I. given the termination of their domestic relationship regardless of her allegations made to the police.

[155] Despite these four points the defence urges that these complaints “come out of the woodwork” (sic) nine months after October of 2018 and only after M.P. believed that C.I. was being unfaithful to her, again. In Ms. Wilhelm’s submission, “So that’s what I say is the motive that should cast doubt on things. And you don’t have to find in fact that that was her motive but the existence of those features of the evidence are telling.”

[156] When I asked counsel what they tell, Ms. Wilhelm submitted that they tell against M.P.’s credibility, that they tell that at a minimum there is a spectre of a motive to fabricate her complaints.

C.I.’s Various Statements

[157] Noting that I can accept all, some or none of what a witness says, Ms. Wilhelm does not ask that I have a reasonable doubt about C.I.’s guilt based upon his denials of culpability in his police interview. The defence concedes that the police statement contains “untruths” that are contradicted by C.I.’s statements to others, especially to A.C. Indeed, Ms. Wilhelm conceded that, “It’s fairly obvious that those denials are false.” Specifically, the defence does not ask that C.I.’s blanket denials of four matters in his police statement be the basis for raising a reasonable doubt on the offences. Those blanket denials were that:

• there was no hot sauce assault;
• he never took M.P. to a hospital;
• he never whipped M.P.; and,
• he did not recognize the name of his tenant H.S..

[158] In an effort to mitigate C.I.’s lies to the police it was submitted that I could take judicial notice of the fact that people sometimes lie to the police while being interrogated because a police interrogation can be a terrifying experience. While I am far from certain that that is a proper matter for judicial notice, C.I. was clearly not terrified during his police interview. He was calm and sometimes smarmy. Near the end of the interview at page 41 C.I. says:

“… I believe I’ve said everything, and I commend you in your efforts. I know that it might not be the best of, opportunity for us to meet. However, you have a good head on your shoulders, and if we had met in other areas, Iike I think that I would like you.”

Far from being terrified, C.I. was being manipulative.

[159] Further, in order to buttress a claim to credibility of C.I.’s admissions to A.C., Ms. Wilhelm suggested that those comments could be analogized to a voluntary and spontaneous Edgaresque [18] response to being confronted with damning allegations. Ms. Wilhelm urges that a level of reliability and credibility is imbued in his responses to A.C. as they are somewhat spontaneous when being confronted with these allegations for the first time. Given that, those statements merit acceptance and ought to be available to raise a reasonable doubt. [19]

[160] Respectfully, the analogy is inapt. Moreover, it is inapplicable on the facts even if the analogy to Edgar was appropriate. The ratio of Edgar is reviewed by our Court of Appeal in R. v. Badhwar, 2011 ONCA 266 and I have footnoted that portion of Badhwar below [20]

[161] The evidence of A.C. is that his communications with C.I. about the hot sauce incident and about whipping occurred on July 14, 2019. C.I.’s comments and admissions were not spontaneous. Rather, they were induced by the importuning of A.C. Moreover, they were not made when C.I. was first confronted with allegations of assaultive behaviour. In my view that is clear from Exhibit 4, which contains his email exchanges with T.W. from July 10 through 12. [21] Hence, I am of the view that there is no proper analogy to Edgar and that principle does not apply on these facts in any event.

[162] Ms. Wilhelm urges that I should have a reasonable doubt about C.I.’s guilt, (at least on the hot sauce incident), based upon his characterization of that event as he described it to A.C. The defence contends that I need not reject everything C.I. says because he lied on significant points to the police.

[163] Rather, given C.I.’s credible characterization of the events to A.C. when taken together with the unreliability or incredibility of what M.P. alleges, (to be reviewed momentarily), together with the spectre of her motive to fabricate her complaints as discussed previously, I must find C.I. not guilty because this combination of assessments precludes me from being satisfied that the Crown has proved C.I.’s guilt to the exclusion of any reasonable doubt.

The Hot Sauce Incident Redux

[164] Ms. Wilhelm pointed to the one obvious allegation made by M.P. that is inconsistent with the evidence of both tenants that further adds to why the court ought to be cautious in accepting her version of the events. M.P. said that she was made to get naked, that she was bound while naked and that she somehow escaped her bonds while naked and ran naked to the bathroom. The tenants both say she was clothed but M.P. says she did not get dressed until she left for the hospital.

[165] Contrary to Ms. Branton’s submission, this is not a peripheral issue according to the defence. Notwithstanding that on the evidence of the tenants M.P. would have had time to get dressed, she was clear in her evidence that she did not do so. Yet, while the tenants varied on what M.P. was wearing, both were clear that she was wearing some sort of clothing and that she was not naked in the bathroom. They would have noticed has she been naked. While both tenants had reliability issues neither was incredible. Both tried to tell me the truth as they recalled it and I accept that M.P. was not naked in the bathroom when the tenants saw her there.

[166] Given that stark contradiction, the defence contends M.P. is not a reliable historian and that she is not a credible one either.

[167] Next, Ms. Wilhelm stresses that on M.P.’s evidence C.I. bound her intricately yet she had no idea how she got herself unbound, other than believing, despite her panic and fear, that she had the presence of mind to try and keep her wrists as far apart as she could while she was being bound, in the hope that she could create some slack in her bindings when C.I. was done trying her up. The defence urges that that could not have happened and that that explanation by M.P. does not ring true.

[168] Further, M.P. testified that she had no recollection of untying her ankles. Again, the defence contends that that strains credulity and that the proper interpretation of that lack of memory is that her ankles were never bound.

[169] Finally, Ms. Wilhelm points to A.C.’s evidence that at some unidentified time M.P. told him in a text that: [1] she was bound to a chair by C.I.; [2] that she was whipped during that incident; and, [3] that C.I. threw hot sauce into her eyes. Ms. Wilhelm tied A.C. to that recollection of such a text sent to him by M.P. beyond peradventure.

[170] Ms. Wilhelm submitted that these three striking details, conveyed by M.P. to A.C. – (being bound to a chair, being whipped during the incident and having hot sauce thrown into her eyes) – went to the heart of her complaint. I interrupted Ms. Wilhelm at that point to observe that at most they went to the specifics of how she came to be injured but that, even if A.C.’s recollection was correct, there was no resiling by M.P. from being bound by C.I. and while bound being forced to ingest hot sauce without her consent.

[171] I do not consider these contradictions to be of significance and, in my view, neither did A.C. As a result, I doubt that his recollection of this putative text was accurate. I arrive at that conclusion because in his correspondence with C.I. A.C. wrote as follows:

So you didn’t say “I need to let me anger out” threw her onto the floor… put.your foot on her back…hog tied her and then poured hot sauce on her and sent her to the ER? She cried as she told me this

Clearly, A.C. is recounting what M.P. told him about the hot sauce incident. That account accords well with her testimony. I do not mean to suggest that it is a prior consistent statement that offers any weight to her testimony. Clearly it does not. The point is that A.C. proffers it to C.I. without any apparent concern about any other inconsistent account from M.P.

[172] I also note that Ms. Wilhelm in her cross-examination easily demonstrated reliability issues respecting A.C.’s ability to recall when various things were said to him and whether they were said in person or via correspondence. Accordingly, I do not accept that A.C.’s evidence about having been sent a text by M.P. in which she described an inconsistent version of the hot sauce incident. I note further that she specifically denied having done so when that suggestion was put to her by Ms. Wilhelm.

[173] The defence contends that cumulatively the frailties in M.P.’s evidence, (set out in the preceding paragraphs of this section), poison M.P.’s credibility and ruin her as a witness. The defence submits that M.P. is an incredible witness, whose evidence cannot ground any secure finding of culpability to the exclusion of any reasonable doubt.

[174] Given that conclusion, C.I. has offered an alternative explanation for how the aftermath occurred, namely unintentionally and accidentally when the peace offering that M.P. brought to him was used and went awry. I reject that submission. That suggestion – that she brought him the hot sauce and rope as a peace offering – was put to her and she rejected it. I accept M.P.’s evidence that she never brought hot sauce and rope to C.I. Moreover, even on C.I.’s own attempt to characterize the hot sauce incident in an innocent fashion, if I was to credit his statement, he concedes that the event became an angry incident.

[175] Ms. Wilhelm correctly and importantly noted that even if I reject everything that C.I. has said that proves nothing. The onus is on the Crown to prove his guilt to the exclusion of any reasonable doubt and the position of the defence is that it cannot do so given the frailties of M.P.’s evidence.

Reasons for Judgment

A Self-charge on the Presumption of Innocence & the Onus & Burden of Proof

[176] This is a criminal prosecution. The onus of proof lies solely on the Crown to prove the guilt of the accused to the requisite degree. That burden is proof of guilt to the exclusion of any reasonable doubt. This onus of proof never shifts from the Crown to the defence. There is no burden on the accused to prove anything. C.I. is presumed innocent and he is entitled to the benefit of that presumption of innocence unless and until that presumption of innocence is displaced by admissible evidence that proves his guilt to the exclusion of any reasonable doubt.

A Self-charge to Avoid a Forbidden Line of Reasoning

[177] In R. v. Y.M., 2004 ONCA 39045, [2004] O.J. No. 2001 (C.A.) Laskin J.A. identified an erroneous approach to cases, like this one, where the credibility of the witnesses is starkly conflicted. That erroneous approach to the evidence and to the law causes a judge to follow a forbidden line of reasoning that fails to honour and properly apply the onus and burden of proof. In Y.M. the Court of Appeal found that the trial judge may have treated the matter like a credibility contest and rejected the accused’s evidence merely because he preferred and accepted the complainant’s evidence.

[178] Justice Laskin went on to explain that this reasoning is forbidden because it appears to shift the burden of proof onto the accused to explain away the complainant's evidence. I have not followed that forbidden path here. In my view there are cogent and very compelling reasons for rejecting C.I.’s statements.

[179] In W.(D.) Cory J. prescribed a three step formula for assessing evidence.

• First, if you believe the evidence of the accused, obviously you must acquit.
• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[180] Appellate courts demand that trial judges show they have considered W.(D.)'s middle ground; namely, whether the defence evidence in the context of the evidence as a whole leaves the trier of fact with a reasonable doubt. The law does not require the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 743, the trier of fact must acquit even if they do not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

[181] Accordingly, I instruct myself to avoiding that forbidden line of reasoning. I shall not approach this case by saying to myself, as the trier of fact, that if I accept the evidence of the complainant I must therefore reject the evidence of the defendant. This forbidden line of reasoning fails to honour the presumption of innocence and the burden of proof and insidiously shifts the burden of proof onto the defendant to explain away the complainant’s evidence.

[182] On the other hand, I am not to require the prosecutor to meet an unlawful burden that demands corroboration where the law does not require it. I charge myself in accordance with the governing principles as set out above and with the principles explained in R. v. Jaura, 2006 ONCJ 4157 and R. v. J.J.R.D., 2006 ONCA 40088, [22] and R. v. Hull, 2006 ONCA 26572 and many other cases.

[183] At paragraph [5] of Hull, the Court of Appeal clarified and to some extent thereby rationalized the Y.M. principle with Jaura and J.J.R.D. in the following words:

W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[184] I am also mindful of the need for care and caution where the case for the Crown is carried substantially by one witness.

Corroboration

[185] Corroboration, “as commonly understood, refers to evidence from a source other than the witness whose evidence is challenged which is capable of confirming the veracity of the evidence of the challenged witness.” (R. v. Bo Zou, 2017 ONCA 90 at para. [40].)

[186] This is not a child sexual assault case, yet the principle that corroboration is not required applies equally here. Nonetheless, corroborative evidence has been led in this case which significantly reinforces and confirms M.P.’s evidence both on the hot sauce incident and on her allegations of being whipped by C.I.

[187] I note further that corroborative evidence need not be corroborative of a material particular of the offences charged. Rather, evidence is corroborative if the evidence of the complainant which implicates the accused is corroborated in a material particular by other independent testimony. (See R. v. G. B., 1990 SCC 59 at paragraph [53])

[188] In assessing and weighing C.I.’s statements I want to make it clear that I have considered his statements while taking the evidence of M.P., T.W., A.C., A.E. and H.S. into account not, on the basis of a “credibility contest” in which I prefer M.P.’s evidence to C.I.’s. Rather, I assess C.I.’s testimony in light of the whole evidence, including the testimony of M.P. and the other witnesses. In carrying out this comparative assessment I recognize that one possible outcome of my assessment is that I may be left with a reasonable doubt concerning the guilt of the accused despite not accepting his evidence.

[189] Having done so, however, I reject the evidence of C.I.’s denials of culpability. As I do not believe and reject C.I.’s denials of wrongdoing, I must go on to ask myself whether, based on the evidence that I do accept, the Crown has proved the guilt of the C.I. to the exclusion of any reasonable doubt? The short answer is that it has, and I find C.I. guilty on counts two, three, four and five.

Conclusion

[190] I do not believe C.I.’s denials to the police. He clearly lied in that statement. His lies to the police demonstrate that he is incredible. That said, I accept aspects of a number of C.I.’s admissions when they are corroborated by the evidence given by M.P. or other witnesses.

[191] While Ms. Wilhelm did not submit that implied consent to a sexual assault is a principle known to Canadian criminal law, she contended that people can consent to do things they don’t enjoy and don’t like. That may be true as a generality but on the specific evidence in this case that observation has no application. That idea, that M.P. did not like eating hot sauce, did not like being bound by ropes or did not like being whipped by ropes but nonetheless consented to engaging in that behaviour at the behest of C.I. was never put to her as a suggestion in cross-examination and M.P. never said anything of the sort nor implied anything of the sort during her direct examination.

[192] When considering the admissions made by C.I., I do not accept the defence submission that there is a level of interpretation that must be applied to reading a conversation after the fact. In my view there is no ambiguity in the admissions made by C.I. In colloquy with Ms. Wilhelm I challenged her to show me some inuendo or ambiguity to his admissions regarding his whipping of M.P. Counsel accepted that C.I. acknowledged that M.P. was not a proponent of being whipped. Counsel agrees that if I accept M.P.’s evidence then the assault with a weapon count is made out. While it is true that a compete record of everything said between C.I. and A.C. was not secured by the officer-in-charge of this investigation and hence not tendered by the Crown, I cannot find that any lack of completeness modifies, ameliorates or otherwise reduces the effect of the admissions made by C.I. in Exhibit 5.

[193] On Count five, I find that C.I. was angry with M.P. for trying to access his facebook account. He vented his anger by punishing her. The tenants heard the couple arguing as M.P. said. They could not hear what was being said but I accept M.P.’s evidence of her description of the events save and except that I do not accept that she was naked when she left the bedroom to run upstairs to try and wash the hot sauce from her face and out of her eyes. When and how she grabbed some items of clothing I cannot resolve but I find that she must have done so. Whether C.I. used half-hitch knots or whether M.P. managed to extricate herself from more difficult knots is not a matter of substance. I accept her evidence that she was hog-tied by C.I. and that this punishment was a sexual assault from his perspective due to his use of ropes to bind her. Equally, the sexual nature of the assault, by making her get naked, is also objectively obvious.

[194] In my view the fact that M.P. could not recall untying or removing the bindings from her ankles is of no consequence. It must be remembered that she was in excruciating pain. Her cries of pain were clearly heard by the tenants. I pause once again to note that this was an act of punishment. M.P.’s evidence about C.I. telling her that she was getting what she deserved was corroborated by what A.E. heard and demonstrates that. [23]

[195] C.I. was sexually excited by whipping M.P. with a rope and he did so repeatedly by his own admission. That admission fully corroborates M.P.’s evidence on that matter. I therefore find him guilty of the assault with a weapon count.

[196] I do not accept the defence submissions that there is a spectre of a motive to fabricate that is demonstrated by any of the matters pointed to by Ms. Wilhelm. I do not accept counsel’s submission that M.P. was making anything up or making any thing worse than it was as she experienced it. None of those defence submissions cause me to have any reasonable doubt about C.I.’s guilt on any of the counts from two to five.

[197] I have laboriously outlined the internal and external inconsistencies in C.I.’s statements and shall not repeat that exercise.

[198] To conclude, I accept M.P.’s evidence about the hot sauce incident, other than that she ran to the bathroom naked. Additionally, I find that she was wrong when she believed that he momentarily was trying to stop her breath with a towel in the bathroom. In my view that was no more than an attempt, even if a rough one, to wipe away the hot sauce.

[199] I accept M.P.’s evidence that later, on the night of the hot sauce assault, when they returned from the hospital, he forced her to fellate him and forced her to submit to vaginal sexual intercourse. I have previously discussed her evidence in that regard and accept it. C.I.’s stated recollections are implausible to me and I reject them, and as set out previously, they do not raise a reasonable doubt in my mind.

[200] Equally, I accept M.P.’s evidence that on several occasions, C.I. mounted her torso, pinned her arms with his knees and forced his penis into her mouth. Similarly, I accept her evidence that he routinely forced her to engage in vaginal sexual intercourse when she did not want to do so either by waking her up when she was asleep or by insisting that she submit as they went to bed. I accept her evidence that these sexual acts were committed by him against her without her consent.

[201] Finally, I accept that on at least on one occasion C.I. committed an assault level one against her as described by her in her evidence. Moreover, while no particular incident was specified in his admissions to T.W., he effectively conceded to having done so.

Dated at Hamilton this 25th day of January

J.S. Nadel, (O.C.J.)

[1] That portion of the case appears at paragraph [141] and following in the version provided by Lexis Advance Quicklaw:

141 More specifically, police rely in large measure upon popular conceptions of sexual assault in order to classify incoming cases as "founded" or "unfounded". It would appear as though most forces have developed a convenient shorthand regarding their decisions to proceed in any given case. This shorthand is composed of popular myth regarding rapists (distinguishing them from men as a whole), and stereotype about women's character and sexuality. Holmstrom and Burgess, supra, at pp. 174-99, conveniently set out and explain the most common of these myths and stereotypes: 1.Struggle and Force: Woman As Defender of Her Honor. There is a myth that a woman cannot be raped against her will, that if she really wants to prevent a rape she can.

144 This list of stereotypical conceptions about women and sexual assault is by no means exhaustive. Like most stereotypes, they operate as a way, however flawed, of understanding the world and, like most such constructs, operate at a level of consciousness that makes it difficult to root them out and confront them directly. …

[2] H.S. was familiar with the hot sauce. He had seen it in the refrigerator of a prior home where he lived as a tenant of C.I. He described the hot sauce as being made from habanero peppers and said that ½ a millilitre of it was too much to take undiluted.

[3] See R. v. Chase, 1987 SCC 23, [1987] 2 S.C.R. 293 as annotated in Martins 2021 Annual Criminal Code. “The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: whether viewed in the light of all the circumstances the sexual or carnal context of the assault is visible to a reasonable observer.

[4] R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742. It does not suffice to merely repeat the jury charge pronounced in W. (D.) as a catechism. As noted by our Court of Appeal in R. v. A.P., 2013 ONCA 344 at paragraph [39]:

[39] The appellant nevertheless concedes that the trial judge identified the correct approach to be taken in such cases, which is that outlined in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, at p. 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. The appellant argues, however, that the reasons show that the trial judge did not properly apply that approach to the evidence in this case. I agree. Correctly setting out the W.(D.) approach is not determinative of the correctness of a decision – the critical issue is whether the reasons reflect its correct application: see e.g. R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 50-51. (emphasis added)

[5] The following list of statements is taken from Exhibit 6(a), the transcript of C.I.’s police interview. While Ms. Branton did not refer to each one that I have excerpted, this is a convenient place to set them out.

[6] The references - (p. x) - are to the transcript of the police interview, being Exhibit 6(a).

[7] I have quoted the exchanges as typed.

[8] Ms. Branton made clear submissions that sexual assault was a crime of violence and that libido or sexual satisfaction was not per se a necessary component of that crime.

[9] It is clear to me from M.P.’s evidence that that was the hospital C.I. drove her to. M.P. said that the hospital was on James Street, which is one of the two main north/south arteries that St. Joseph’s Hospital fronts on.

[10] He also admitted to A.C. that he had used other ropes in the past and he had bound her with them on prior occasions and that in doing so he had used knots that cinched up and hurt her.

[11] Sometimes attributed to Friedrich Nietzsche: “De Teufel steckim Detail”.

[12] In R. v. D.K., 2020 ONCA 79 Justice Trotter explained:

[23] … The trial judge blurred the distinction between (1) cases where bodily harm is caused during non-consensual sexual activity, and (2) cases where consent is vitiated through the intentional infliction of bodily harm. In the first category of cases, all the Crown is required to prove is objective foreseeability of bodily harm; in the second category, in order to vitiate consent, the Crown must prove the bodily harm was both caused and intentional: see R. v. Graham, 2019 ONCA 347, 377 C.C.C. (3d) 205, at paras. 23-27.

[24] This error may have been avoided had the trial judge first made a finding on the issue of consent. Defence counsel took the position that the sexual intercourse was consensual and that J.D.’s consent was not vitiated because her injury was caused accidentally. However, once the trial judge concluded that J.D. had not consented to any sexual activity with the appellant that night, an intent to cause bodily harm was not required for a conviction under s. 272(1)(c). Instead, the trial judge should have considered whether the harm caused to J.D. was reasonably foreseeable: see Hamish C. Stewart, Sexual Offences in Canadian Law (Toronto: Thomson Reuters, 2004) (loose-leaf updated 2019, release 36), at p. 3-74 And see: R v. Quashie, 2005 ONCA 23208, [2005] OJ No 2694 (C.A.) at paragraph [57]: “In order for bodily harm to vitiate consent, it must be shown that the bodily harm was caused to a complainant, and that the accused intended to inflict bodily harm on the complainant.”

[13] In L.S. the couple had consensual sex both before and after the alleged non-consensual event. Justice Doherty accepted that that fact was some evidence from which it a factfinder could conclude that the alleged non-consensual sex did not occur.

[14] See R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 at [65]

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a 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 delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. (emphasis added) And see R. v. Batte, 2000 ONCA 5751, [2000] O.J. No. 2184 (Ont. C.A.) at [145]

[145] The annulment of the law relating to recent complaint was a clear rejection by Parliament of the two assumptions underlying the common law doctrine. By repealing this judge-made rule, Parliament declared that it was wrong to suggest that complainants in sexual cases were inherently less trustworthy than complainants in other kinds of cases, and that it was wrong to assume that all victims of sexual assaults, whatever their age and whatever the circumstances of the assault, would make a timely complaint. Both assumptions reflected stereotypical notions which demeaned complainants (most of whom were female) and ignored the realities of human experience. It made no sense to suggest that all persons subjected to a traumatic event such as a sexual assault could be expected to react in the same way and make a timely complaint: R. v. W. (R.), 1992 SCC 56, [1992] 2 S.C.R. 122 at p. 136, 74 C.C.C. (3d) 134. Indeed, that assumption is now so obviously wrongheaded that it is difficult to believe that it was ever part of the accepted wisdom of the common law.

[15] Given the direct evidence provided by M.P., I did not understand counsel to be making a reference to R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 respecting the law of circumstantial evidence. Villaroman directs that, when assessing circumstantial evidence, the trier of fact should consider other possible theories and other reasonable possibilities which are inconsistent with guilt. The Crown may need to negative these reasonable possibilities, but it certainly need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused as other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, but not ones based on speculation. (See Villaroman at paragraph [37].)

[16] M.P. said that C.I. told her that he was going out for a job interview. He had left his facebook account unlocked. Rather than going to a job interview he was having an unfaithful conversation with another woman. I infer that C.I.’s cell phone was linked to his facebook account that was open on another device at home allowing M.P. to watch him conversing with another woman and then deleting his comments on his phone in real time to hide what he had been saying to this other woman.

[17] Neither side attempted to call any cogent evidence about how the employer came into possession of what became Exhibit 5 and no one from Garden Grove, the mutual employer, was called to give evidence.

[18] R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161 (C.A.)

[19] Ms. Wilhelm also pointed to A.C.s evidence that these comments were provided over approximately 30 minutes, which she submitted did not leave C.I. much time for reflection. I do not accept that submission. On the contrary, he had both the time and the opportunity to compose these responses.

[20] [17] Edgar stands for the proposition that “it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination”. The statement does not go in for its truth (unless it is otherwise admissible as original evidence) but “is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence”. (See Edgar at para. 72).

[18] The proposition of law stated in Edgar must be assessed against the factual backdrop of that case. In Edgar, the accused was literally caught by the police in the act of stabbing his girlfriend. At para. 76 of the decision, Sharpe J.A. described the statements that Edgar wished to have admitted into evidence as follows: The first two statements were spontaneous and made within minutes of the appellant’s arrest for murder. The appellant was in a highly agitated state and he had little time to think or to fabricate a story. While the third statement was made four hours after the arrest, it was made at a time when the appellant was in the hospital recovering from the injuries he had sustained in the altercation and the third statement was really a continuation of the first two statements. In my view, the appellant’s three out-of-court statements may fairly be described as statements made by an accused person upon his arrest and upon being first confronted with the allegation of murder. [Emphasis added.]

[21] Well prior to July 14, 2019, in Exhibit 4, T.W. accused C.I. of putting his hand on M.P., of cheating on her and tearing her down, repeatedly and time and again. As quoted much earlier in the body of these reasons C.I. admitted to a couple of incidents of assault against M.P. More particularly on Wednesday, July 10, 2019 T.W. wrote to him and asked, “Why can’t you own up to what you did! Octob? Hot sauce? Cheating on her, lying throwing her to the ground – own up to the abuse –"

[22] Leave to appeal refused, [2007] SCCA No. 69

[23] Perhaps a minor point but I note that C.I. did not rush upstairs with M.P. to immediately assist her in washing away the hot sauce that was burning and blinding her. Later, according to H.S. it was back in the refrigerator. An explanation for its presence back in the fridge is that C.I. took the time to put it back to attempt to hide what he had just done.