Publication Ban Notice

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

DATE: September 29, 2021 COURT FILE No: 20-0118

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

T.M.

Before: Justice Michael G. March

Heard: June 3 & 4, July 2, 16 & August 5, 2021

Reasons for Judgment released on: September 29, 2021

Counsel: Richard Morris, for the Crown Karin Stein, for T.M.

March, M.G., J. :

Introduction

[1] T.M. stands charged that:

a) between May 1 and June 30, 2016, he committed an assault upon R.G.,

b) on or about May 14, 2017, he committed an assault on R.G.,

c) between January 1 and January 8, 2018, he committed an assault on R.G.,

d) between August 29, 2016 and May 18, 2019, he committed a sexual assault upon R.G., and

e) between May 1 and May 18, 2019, he committed an assault on E.M.

[2] Originally, T.M. faced three additional charges. Those were dismissed following an application for a directed verdict at the close of the Crown’s case. R.G. had not offered any evidence over the course of the four days during which she testified to make out those offences.

[3] R.G. was the only witness for the Crown. T.M. solely testified in his own defence.

[4] The outcome of this trial, of course, turns on findings of credibility and reliability I must make in assessing R.G.’s and T.M.’s evidence applying a W.D. [1] analysis.

The Relevant Evidence

R.G.

[5] When R.G. testified on June 3, 2021, she was 26 years of age.

[6] She recounted that she started into a common law relationship with T.M. in 2015 when she was just 19.

[7] They had two children together, E.M., in 2016 and T., in 2018.

[8] Her relationship with T.M. ended in May 2019. R.G. asserted that she broke it off with him roughly two weeks before their planned wedding date of May 26, 2019.

[9] R.G. identified a couple of factors which led to the demise of the relationship. Firstly, she felt abandoned. T.M. would abruptly leave, go for drives and never return.

[10] Secondly, he showed little interest in couples’ counselling she had arranged for them.

[11] In addressing the assault which was alleged to have occurred between May 1 and June 30, 2016, R.G. recalled that she was walking up a flight of stairs. She fell forward. He had pushed her. However, at the time, she gave him the benefit of the doubt.

[12] He explained to her at the time that he had fallen up the stairs, which caused him to collide with her in a domino effect.

[13] Looking back on the incident, R.G.’s view of the incident changed. She reflected that T.M. was never truthful with her. He passed everything off as an accident.

[14] When she was pushed by him from behind, she landed on her belly. She was pregnant with E.M. She felt immediate discomfort and pain.

[15] She was not sure why T.M. had become upset with her to cause him to push her.

[16] She recalled that it was not until that spring of 2016 that T.M. had ever laid hands on her. Thereafter, over the course of the relationship, R.G. described her interaction with T.M. as stressful, scary and difficult.

[17] In hearkening back to the alleged assault from May 14, 2017, R.G. remembered that it was her first Mother’s Day. She testified that T.M. and she were going to visit his mother in Renfrew. She wanted breakfast at Tim Horton’s. T.M. took her breakfast sandwich from her and smashed it into her face. They had not even made their way out of the parking lot. She did not know exactly what prompted T.M. to become so angry on that occasion.

[18] She remembered that some of the cheese stuck to her face. She ended up not eating the sandwich.

[19] She reckoned that T.M. smeared the sandwich on her face due to the stress they were under as a result of constant arguing and moving.

[20] The assault alleged to have occurred between January 1 and 8, 2018 involved an argument over whether R.G. would have sex with T.M. Specifically, she remembered it occurred on New Year’s Eve.

[21] In short, he became angry when she informed him of her lack of interest. She attempted to walk away. She fell back on the bed as he obstructed her.

[22] He then held her left leg toward her right. She was almost in a fetal position. He used a closed fist to punch her on her left thigh above her tattoo.

[23] She sent a photo of the bruise the punch created to her friend roughly a week after the incident had occurred. She then deleted the photo because she was afraid T.M. would find it on her phone. He would not check it every day, but he did so often.

[24] She recalled that she told police that she had her eyes closed when he punched her. That is why she could not answer which hand T.M. used to deliver the blow.

[25] In recounting the sexual assaults alleged to have occurred between August 29, 2016 and May 18, 2019, R.G. described incidents where she would awaken to T.M. with his fingers in her vagina. It became a real issue for them. She stopped wanting to sleep with him. She could not recall the first time it occurred. However, she asserted that it did happen before she was pregnant with E.M. It continued while she was carrying him.

[26] She explained that it happened fairly frequently and at almost every residence in which T.M. and she lived. She would feel violated. She would cry and lay in bed.

[27] In terms of how often, she estimated the unwanted digital penetration of her vagina would occur once every month or two.

[28] She was not certain whether T.M. used one or two fingers when he engaged in this act. It always happened in the middle of the night. These incidents continued before and after the birth of her second son, T., as well. T.M. would stop when she awoke. Sometimes she would regain consciousness with him on his way to her vagina.

[29] Whenever it occurred, she would shift herself away from him. She would be upset. He would laugh and make light of it.

[30] R.G. stated that it got to the point where she would not sleep with shorts on. Instead, she wore jogging pants or leggings, but the material was still “stretchy”.

[31] She agreed that when she spoke to police about these nocturnal incidents of digital penetration of her vagina, she estimated that it happened more than five times. The touching of her vagina by T.M. while she slept became a norm in their relationship.

[32] When challenged, she was indignant that she was quite familiar with her own reality. She was not going to entertain the suggestion put to her that the incidents of digital penetration did not occur. She was not going to be subjected to psychology being used upon her by defence counsel. She had read T.M.’s lawyer’s bio on her website and knew about her background in psychology.

[33] She recalled further instances where T.M. forced sex upon her. She explained that sex was painful for her following her emergency C-section when E.M. was born. It could take up to a year for the skin to heal and the feeling to return. At times, she would ask T.M. to stop while they were engaged in the act of intercourse, but he would not.

[34] R.G. denied that on occasions where she did not wish to engage in sexual activity, she was upset by T.M.’s resort to watching porn and masturbating.

[35] She added that the sexual assaults were one of the hardest things for her to talk about. She wondered whether she had developed posttraumatic stress disorder. Although she was good at suppressing things, her memory did return to her on occasion “in chunks”.

[36] In testifying about the assault alleged to have been committed upon E.M. between May 1 and 18, 2019, R.G. characterized the incident as a “turning point”. It was no longer just her who was the subject of T.M.’s physical and emotional abuse.

[37] She recalled that her father, T.M. and she were seated at the dinner table. T.M. had arrived home from work a short while before. No more than five minutes into the dinner, E.M. peed his pants.

[38] T.M. reacted by picking him up with one hand. He brought their son into the bathroom/powder room. R.G. did not see what caused the injury to E.M., but she was able to observe two red marks on the outer part of his buttocks and one on his arm. She heard the noise and E.M.’s cry. It was not hard for her to connect the dots. She had followed T.M. to the bathroom to be sure E.M. was alright.

[39] T.M. called E.M. stupid and made him feel bad after making him sit on the stairs.

[40] R.G. placed the incident as having occurred within two weeks of their split, which she estimated was on May 19, 2019.

[41] She agreed that even though she went to police to give her initial statement in the two weeks following the incident involving E.M., she did not mention it to the interviewer, notwithstanding its significance as a “turning point”. As R.G. put it, “It’s not that it didn’t come to mind. My focus wasn’t to poke the bear. I was concerned for the safety of my kids.”

[42] R.G. scoffed at the version put forward to her by defence counsel, based on T.M.’s anticipated evidence, that T.M. came home to E.M. already having wet himself. He was not wearing a diaper. He was on the couch. T.M. then made efforts to clean his son up. R.G. characterized this suggested chain of events as almost humorous. She added that E.M. would always pee his pants when T.M. got home.

[43] R.G. explained that T.M. did not have much interaction with his sons, E.M. and T., for a long period following the breakup. Eventually, he did have supervised access visits with them.

[44] R.G. described T.M. as an absent father for two years, who did not pay child support as required.

[45] She testified that in the days following the separation, T.M. demanded that she put his clothes in pieces of luggage. Instead, she placed them in garbage bags and left them outside.

[46] On May 26, 2019, the day of their planned wedding, R.G. went to the police to give a statement about T.M.’s alleged criminal conduct over the course of their relationship. She explained that she only had a week to process years of trauma.

[47] As a result, she did not tell police about everything T.M. did to her. She reckoned that the police saw how afraid and nervous she was.

[48] She contended that T.M. ran from police for a week, during which time he cut off her TV and Internet.

[49] R.G. kept texts and voice recordings sent to her by T.M. to use in Family Court. She retained a lawyer to commence such proceedings within 24 hours following separation. Litigation is still pending between them.

[50] She stated that in giving her initial statement to police on May 26, 2019, the only time she had to prepare for it was during the drive from her sister’s place to the police station. She did not have time to gather the years of trauma. It took her time to come to the realization she had been “manipulated and gas lighted”.

[51] She agreed that only two incidents stood out in her mind on May 26, 2019 - one involving hand sanitizer being punched or thrown at her by T.M. - another involving his tearing her shirt off because she refused to have sex with him.

[52] R.G. agreed as well that she was asked on two separate occasions during that interview if there was anything else she wanted to tell police. She did not offer anything.

[53] She added that the interview was hurried because she had her sister and two toddlers waiting for her outside the door.

[54] She acknowledged that she did not tell police about the sexual assaults at her first opportunity. She did not say anything about what had happened to E.M., nor any of the other assaults she said she suffered at the hands of T.M.

[55] The reason she gave for neglecting to tell police about those incidents was because she did not feel she had any witnesses to confirm T.M.’s criminal acts.

[56] R.G. was aware that T.M. pleaded guilty in November, 2019 to the charge he faced for ripping her shirt. She was shocked by his decision to do so. She only learned of the outcome through the Victim Witness Assistance Program after he had “made a deal”.

[57] She knew that T.M. denied any sexual connotation to the assault.

[58] R.G. later met with Constable Howe, an officer with the Ottawa Police Service. After that meeting, she put her mind to creating a full account of the abuse she suffered at the hands of T.M.

[59] It was not until January, 2020 that R.G. then gave a further statement to the Arnprior OPP setting out the subject matter of the charges upon which T.M. was tried.

[60] R.G. bemoaned the fact that she gave up her career as a hairdresser to start her studies in early childhood education. She missed out on opportunities to go to Chicago and New York for shows because of T.M., she asserted.

[61] She testified she did not remember feeling jealous about T.M. being in the company of other women, or suspecting that he was cheating on her. She clarified that she knew he was being untruthful about contact with S.E., his former partner, but not cheating with her.

[62] However, R.G. added that she thought he was cheating with a girl, C., with whom he worked. R.G. saw a troubling, social media post of T.M. with C. R.G. was upset at the time, but later regarded it as a blessing in disguise. In retrospect, it was good fortune for her that he was on his way out and had another woman.

[63] On May 18, 2019, R.G. recalled that T.M. went to buy his wedding outfit. She sensed he was getting “cold feet”. He told her that he was worried the marriage would end in divorce.

[64] R.G. then texted T.M. to tell him it was over.

[65] Within 24 hours of the breakup, T.M. was posting pictures of C. and himself on social media.

[66] On May 26, 2019, R.G. told police she was very concerned about the constant messaging she was receiving from T.M. She did not return the 30 or so telephone calls that he had made to her.

[67] When referred to a transcript of the statement that she gave to police on May 26, 2019, R.G. was reminded that she appeared to be complaining to police that T.M. would not talk to her and had not responded to her. Nor had he asked about how their children were doing.

[68] Shortly after she gave her statement to police, he arrived one morning at her residence and threw cash at her. He said it was child support. R.G. considered it to be a control mechanism T.M. was attempting to exert over her. She thought he was there to bribe her.

[69] She added that T.M. controlled her bank account, told her what to wear and dictated who she could and could not see. She claimed that T.M. did not permit her to do anything on her phone. However, it was pointed out to her that T.M. would be away at work for extended periods of time leaving her the opportunity to do as she wished.

[70] R.G. confirmed that she told police that T.M. had threatened her sister; however, T.M. was never charged with an offence of that nature.

[71] R.G. conceded that between May 18 and 31, 2019, she had indeed had regular text exchanges and telephone calls with T.M. Part of the content of those discussions was the child support he would have to pay. Other times they were both upset and crying. As she put it, she had two young boys and no support.

[72] She denied that the exchanges between T.M. and her were intended to arrange an opportunity for him to see their sons. She insisted that he wanted to see her.

[73] R.G. agreed that T.M. offered to provide her with child support via E transfers. However, she was insisting that the monies be paid through the Family Responsibility Office. She would not agree to a change of his release conditions to allow for E transfers to occur. She added that he still only pays $80 per week.

[74] R.G. recalled once telling T.M. that she “hated him” so much. She stated that he abused her physically and verbally. He also cheated on her.

[75] Notwithstanding, R.G. maintained that she tried to be civil in the texts she sent to T.M. She did not want their son, E.M., to feel abandoned.

[76] Even now, R.G. testified, she still drives around looking over her shoulder. She considers T.M. to be scary and impulsive.

[77] R.G. added that T.M. tried to coerce her into getting back with him after she spoke to police.

[78] When it was suggested to her that she told T.M., “If you had not left, I would not have called the police”, R.G. answered, “I don’t think I said that.”

[79] R.G. denied any general intention of interfering with T.M.’s relationship with their sons. She allowed him to see the boys in 30 to 45-minute segments. However, she stated that T.M. had no ability to take care of children.

[80] She conceded that in a way, she controlled the dates upon which T.M. had access to their sons.

[81] On August 24 and September 7, 2019, two dates upon which T.M. had access to his children, R.G. confirmed that she called police on both occasions to complain that T.M. was breaching his release conditions.

[82] R.G. agreed that her father was to supervise T.M.’s visits with their boys; however, she hung around for those meetings.

[83] In October 2019, R.G. was aware that T.M. was charged with breaching his release conditions. Ultimately, those charges were withdrawn because, as R.G. attributed to the Crown’s characterization of them, “ . . . they were not so serious”.

[84] R.G. testified that T.M. could not even spend time in her presence without yelling at her. He also always had to bring people with him to the visits with their boys. He would show up early or show up late.

[85] She pointed out that T.M. would never call to arrange to get on a waiting list with the Supervised Access Centre.

[86] She described T.M. generally as a “crap dad”, who abused her. She declared he was still “MIA”.

T.M.

[87] When T.M. testified on August 5, 2021, he was 30 years of age.

[88] He runs his own framing business. He has been doing that type of work for five years approximately.

[89] T.M. recalled that he started into a relationship with R.G. in March 2015. He left on May 18, 2019. He told her, “I’m done.”

[90] He attributed the breakdown of their relationship to a lack of trust that R.G. placed in him. She frequently called him names out of jealousy.

[91] It came to a point that he did not see the “worth” in getting married.

[92] He had periodic visits with his sons, E.M. and T., thereafter. They were strained sessions. They tended only to be an hour long. R.G. imposed strict rules on how the access would be exercised.

[93] In reflecting on the relationship, T.M. recalled that there were good times, but there were also a lot of bad times.

[94] He would be given time limits for going to stores.

[95] She would block his family members’ ability to contact him and at times, disallow discussion with them.

[96] T.M. acknowledged that he did plead guilty on November 19, 2019 to an offence involving R.G. Consequently, he was placed on probation for a period of 18 months including mandatory attendance at a partner abuse response program.

[97] He was aware that R.G. often went to the police to complain about his conduct.

[98] He recalled R.G. specifically telling him, “If you didn’t leave, none of this would’ve happened”.

[99] T.M. recalled being charged in October, 2019 with breaches of his release conditions. He explained that he was getting scared because his visits with his sons were not going well.

[100] His new partner, S., and he went so far as to purchase baseball hats with security cameras in them. He also acquired dash cameras for their vehicles; however, the cameras, he conceded, captured no useful evidence.

[101] In addressing the assault alleged to have occurred between May 1 and June 30, 2016, where R.G. fell up the stairs, he denied that this incident ever happened.

[102] Equally, he denied that he ever squished a sandwich in R.G.’s face following a trip to Tim Horton’s on or about May 14, 2017.

[103] T.M. testified that he did not punch R.G. on the thigh between January 1 and 8, 2018 after throwing her on their bed. When the photograph of the bruise was shown to him, he agreed it depicted an injury to R.G.’s thigh above her tattoo, but he reaffirmed he did not cause it.

[104] T.M. categorically denied that he ever inserted his fingers in R.G.’s vagina while she slept over the course of their relationship. Nor did he ever force her to have sex when she told him it was painful. Whenever she did experience discomfort, he would stop.

[105] He explained that 9 times out of 10 in such a situation, he would leave the room and “take care of himself”, by which he meant, he would masturbate.

[106] T.M. also testified that he had never assaulted E.M. by forcefully placing him on a toilet seat. He did recall one incident shortly after he got home from work when E.M. was sitting in his underwear on the couch. His pee was everywhere. T.M. rinsed out E.M.’s underwear and explained to him that he cannot pee on the couch or in his pants. R.G., he stated, was distracted the whole time on the phone with someone.

[107] T.M. testified that he never became upset with his children for having accidents while potty training.

[108] Following his decision to leave the relationship, T.M. was aware that R.G. went to the police on May 26, 2019. He contended that all contact with her thereafter was necessary to obtain his belongings and toiletries. He also wanted to see his boys. He missed both her and them.

[109] T.M. reckoned that he worked too much and should have been home more. Sometimes he would work 12-hour days, but he would communicate via text message with R.G. when he did.

[110] He denied that he ever looked at her telephone to check on who she was contacting.

[111] T.M. testified as well that he never cheated on R.G. His relationship with C. did not start until weeks after he broke up with R.G.

[112] He attributed the breakdown of the relationship to R.G.’s jealousy. She thought he wanted to sleep with everyone in Cornwall including his former partner, S.E.

[113] On May 18, 2019, the day of their breakup, T.M. expressed to R.G. that he wanted to talk to her about emotions, and what their future would hold. Instead, she tried to seduce him.

[114] When R.G. found out about his relationship with C., she contacted C.’s boyfriend. The boyfriend then kicked C. out of their shared residence.

The Issues

[115] The issues for resolution in this trial require a classic application of the three-pronged test set out in W.D.

[116] Firstly, if I believe the evidence of T.M., I must acquit.

[117] Secondly, if I do not believe the evidence of T.M., but I am left in reasonable doubt by it, I must acquit.

[118] Thirdly, if I am not left in doubt, I must still ask myself, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt by that evidence in the guilt of T.M. for any of the offences with which he was charged?

[119] I shall apply this reasoning, of course, in assessing the relevant evidence as a whole.

Analysis

Do I Believe T.M.?

[120] T.M.’s defence is one of denial. The undertone of his evidence was that R.G. fabricated the incidents giving rise to his charges out of pure malice toward him. They did not occur. She is bent on impeding his relationship with his sons, and generally assassinating his character – labelling him a “crap” or deadbeat dad.

[121] Assessing denial is difficult for a trier of fact. There is little an accused who is subjected to fabrication can do other than to deny, and if possible, point to motives to fabricate on the part of the complainant. One may also look to whether the version of events told by the complainant, in a domestic context such as this, not only has the ring of truth to it, but does it make sense and stand to reason?

[122] As I regard T.M.’s evidence along these lines, there are few, if any reasons I can find to reject his denials.

[123] Turning my mind to the first alleged assault, the push up the stairs, I am compelled to consider R.G.’s own first impression of the incident. She herself wanted to give T.M. the benefit of the doubt. It was only in hindsight she began to question the possibility that it was an accident. If it happened at all, it was after careful consideration and aforethought on the part of R.G. that she told the Arnprior OPP about this incident and others, ones she failed to disclose to the Ottawa Police when she gave her first statement eight days after her breakup with T.M.

[124] I would have expected her memory of the incident involving E.M. to be first and foremost in her mind. It happened within two weeks of their separation. Yet she told police nothing about that act of violence on the part of T.M. If it was a “turning point” for her, I fail to understand why it would not have been something on the tip of her tongue to mention to police.

[125] While I appreciate there are a plethora of reasons why a woman may wish to delay disclosure of a sexual assault, if ever to tell about it at all, I do not understand why R.G. would not do so at first instance in this case when she spoke to the Ottawa Police. She told them about the ripped shirt incident, which, according to her evidence, had a definite sexual connotation. The nocturnal digital penetration of her vagina was far more invasive, and clearly, she was telling police about T.M.’s seeming unwillingness to take no for an answer when it came to the ripped shirt. T.M. clearly exhibited an aggressive response to her rejection of his desire. She was headed down the path of making T.M. out to be the type who had uncontrollable sexual urges. However, the vaginal touching incidents seem to have eluded her memory when asked by the Ottawa Police if there was anything else she wished to report.

[126] I cannot accept that her concern for her children in the care of her sister outside the police interview room door made her feel hurried, or caused her such stress that she could not recall other incidents of violence or unwanted touching she would have wished to relate to police regarding T.M. She went to the police with that specific intention in mind.

[127] The coincidence of R.G. going to police on the day she was to marry also gives me pause. I accept what T.M. said R.G. told him after he was initially charged with assaulting her by the Ottawa Police, namely “If you didn’t leave, none of this would’ve happened”. When the suggestion was put to R.G. that she had spoken words to that effect, her response was, “I don’t think I said that”.

[128] I was struck by the animus R.G. harboured for T.M. It was almost palpable when she gave her evidence – even from the CCTV room where she was situated in doing so.

[129] By contrast, T.M. gave his evidence in a credible, straightforward manner. He explained the extent to which hostilities had escalated between R.G. and him. She appeared to want him charged at every turn. She despised and berated him. She tried to hurt him and to deny him any relationship with their children. He pointed to malice on her part which appeared to ring true from the very evidence R.G. gave herself.

Does T.M.’s Evidence Raise A Reasonable Doubt?

[130] While I need not turn my mind to this branch of the W.D. test, I must emphasize that T.M.’s evidence raised more than a reasonable doubt. I believed him.

On The Basis Of The Evidence I Do Accept, Am I Convinced Beyond A Reasonable Doubt In T.M.’s Guilt?

[131] It is as well unnecessary, of course, for me to address this third branch of the W.D. test, having accepted T.M.’s evidence on the first one, but I am inclined to comment on why I have entertained reasonable doubts, and have not been convinced of T.M.’s guilt upon my assessment of all the relevant evidence. There are several reasons why.

[132] Firstly, the number of occasions on which R.G. testified that the digital penetration of her vagina occurred while she slept seemed to increase significantly from when she first spoke to the police about it. She told police it occurred more than 5 times. I would expect the total to be then in the range of 6 or 7. However, when she testified in Court, she had the frequency of these incidents occurring at a much higher rate since before the birth of E.M. and continuing through to the demise of the relationship over the course of a few years - much more than 6 or 7 times. I cannot pass this inflation of the numbers off to carelessness on the part of R.G. in giving her evidence.

[133] Secondly, R.G.’s claim that T.M. controlled her makes no sense. She was home to do as she wished while T.M. was at work. Granted she was saddled with the responsibility of raising children, and financially reliant to a large extent upon T.M., but she did have her own measure of independence, and support from her father and sister.

[134] Thirdly, she said her memory returned “in chunks”. I question the reliability of what sounds like recovered memory.

[135] Fourthly, R.G.’s evidence was inconsistent on her desire for contact with T.M. She said she still looks over her shoulder to this day because he is scary and impulsive. Yet she hung around to monitor his access, even though her father was present to ensure nothing untoward happened with her children. She reported T.M. to the police because he brought others along while he exercised his access. She said she did not want to “poke the bear”. However, this is exactly what she was doing.

[136] Fifthly, she was a woman who harboured resentment and hatred for T.M. She sacrificed her career for T.M. to raise their children. In return, she believed he cheated on her. As mentioned, her animus toward him was almost palpable.

Conclusion

[137] Some of what R.G. said T.M. did to her may be true. He was someone capable of losing his temper and ripping off her clothing. There can be no doubt in that.

[138] R.G. struck me however as a person who wished to recreate her memory of a most unhappy relationship. Her evidence belied a clear desire to cast T.M. in the worst possible light. In doing so, her credibility suffered. I lost almost all confidence in her ability to be an accurate historian.

[139] Accordingly, I must find T.M. not guilty on all charges.

DATED: September 29, 2021

March, M.G., J.

Endnotes

[1] R. v. W.(D.), 1991 SCC 93, [1991] 1 SCR 742

A trial judge might well instruct the jury on the question of credibility along these lines:

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.