Non-Publication and Non-Broadcast Order

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

ONTARIO COURT OF JUSTICE

DATE: December 14, 2021 COURT FILE No.: 19-2601

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.M.P.

Before: Justice R.S. Gee

Heard on: October 6 and November 17, 2021 Reasons for Judgment released on: December 14, 2021

Counsel: J. Mociak............................................................................................... counsel for the Crown D. Henderson…............................................................................... counsel for the accused

Gee J.:

Introduction

[1] The accused, Mr. R.M.P. is charged with one count of sexual assault against the complainant, Ms. A.M. The encounter between them that led to the charge is alleged to have occurred on August 9, 2019. The Crown proceeded by indictment and the accused elected to have his trial before me in the Ontario Court of Justice.

[2] This was a relatively short and straightforward trial with only two witnesses. The complainant, A.M. was called by the Crown and the accused, R.M.P., testified on his own behalf. The evidence was confined to the interactions between the complainant and the accused on the day of the alleged sex assault, and the several days following. Much of what occurred over this time, was not in dispute.

[3] That a sexual encounter took place between the accused and complainant on the day in question, is also not in dispute. What I am left to decide in this case is if the Crown has proven beyond a reasonable doubt that this sexual encounter occurred as described by the complainant; that being unwanted and without her consent.

[4] The balance of these reasons will explain why I am satisfied that the Crown has proven the allegations made by the complainant beyond a reasonable doubt and that I find the accused guilty of the charge.

The Evidence

[5] The complainant testified she and the accused initially met in grade three, reconnected in high school and had been hanging out together nearly every day since March of 2019 when they ended up working at the same place.

[6] On the night before the incident, the complainant had been out drinking with several other friends. At approximately 4:00 am, she called the accused to pick up her and her friends as they were intoxicated. The accused did and they spent the night at his house.

[7] At approximately noon the next day, the complainant and the accused left his house so, with the help of the complainant, the accused could fix the brakes of an SUV he owned at his friend’s garage.

[8] After working on the brakes for some time, the complainant, who was hungover and not feeling well from the night before, told the accused she was tired. He told her she could have a nap in the back of the SUV. This particular SUV apparently had three rows of seats. The furthest row back was a bench seat and this is where the accused climbed in and laid down, on his back. He then told the complainant to come and lay on him. She said she didn’t want to lay on him, but he kept insisting so eventually she relented. She laid on top of the accused on the bench seat in the same position as the accused. He was on his back on the seat facing the ceiling and she was on top of him also on her back, facing the ceiling. They both testified they were laying in this unusual and uncomfortable position after entering the vehicle.

[9] Once they were in this position, according to the complainant, the accused used one hand to undo her jeans and then put his other hand down her pants and inserted his finger into her vagina. She stated as soon as he started to undo her jeans, she told him “no” and that she didn’t want to. The complainant stated the accused responded by saying it would be okay because he just wanted to have fun for a while. She continued to tell him no and that she didn’t want to and tried to stand up to leave. When she did, he grabbed her around the waist and yanked her back down. She continued to tell him no and he continued with his hand down her jeans.

[10] As he was holding her in this position tightly, she eventually stopped resisting and according to her “just laid there.” He made a remark to the effect “you're not wet for me yet” and when she did not respond he added “well we will get you there.” It continued like this until he eventually stopped and stated, “I'm done having my fun now.”

[11] When the encounter ended, the complainant stated she got out of the vehicle and the accused got out just after her. He went back to working on the brakes and she got back in the SUV, gathered up her phone and belongings, fixed her hair and tried to leave the garage quietly.

[12] The accused saw her leave and ran out after her. He caught up to her in the driveway, grabbed her by the arm and asked what was wrong. She ignored him and continued to walk away. They were in a rural part of the Six Nations Reserve where the roads are without sidewalks and have narrow shoulders. She continued to walk down the road in the direction of her house. The accused went back to the garage and came after her in his truck, a different one than the one he had been fixing. He pulled along beside her and continued to ask her what was wrong. She eventually responded by saying “you literally don’t know what’s wrong right now?” he responded by saying “I don't fucking know.”

[13] They continued on like this, her walking on the side of the road and him beside her in the truck, until a concerned motorist stopped in front of him to ask the complainant if she was okay and if she needed her to call the police or somebody for her. The complainant advised her she didn’t want her to call anyone.

[14] When the motorist stopped, the accused drove off and parked at a gas station at the next corner. He went inside the gas station and as the complainant got close, a friend of hers came out to ask if she was okay. She said she was and needed to clear her head so declined the offer of a ride. She continued walking toward home and now away from the gas station. The accused then ran down the road and caught up to her again. This time he began apologizing. He said he was sorry and didn’t know what was wrong with him and that he didn’t want to lose the complainant from his life. He tried to hug her and she pushed him away. She continued to walk home and he ran back to the gas station where his truck was. This was the last they saw of each other this day.

[15] The accused’s version of what happened once they entered the SUV is different. He agrees they entered after the complainant said she wasn’t feeling well. He agrees he entered first and laid down on his back, facing up on the bench seat. He also agrees the complainant laid on top of him on her back facing up too. From this point on, their versions diverge. He says he started to rub her belly and after a bit, he asked her if she was feeling better. She said she was so he put his hand on top of her breast over her shirt. They continued like this for about five minutes until she shifted to lay on her side then eventually, she shifted again to lay on her stomach. While on her stomach he hugged her and rubbed her back.

[16] She said she was getting uncomfortable so she laid on her back again and he started rubbing her stomach again. At this point the accused states the complainant reached under her and started to rub his penis over his shorts. He responded by using his hand to rub her vagina over her clothes. According to him, this continued for several minutes. As soon as it stopped, she sat up and moved to one of the bucket seats in the second row. He could tell she was upset so he asked her what was wrong. She didn’t respond so he got out and continued working on the brakes.

[17] Out of the corner of his eye the accused said he noticed the complainant leaving so he caught up to her in the driveway and asked what was wrong. She didn’t respond and kept walking. She was now on the road so he went back, got his truck, and followed her. He pulled beside her and continued to ask her what was wrong. She didn’t respond and eventually the concerned motorist pulled up to speak to the complainant and the accused drove off to the gas station. He waited at the gas station and when the complainant got close, her friend went out to talk to her. The complainant continued to walk away so the accused said he ran down the road after her. He caught up to her and when she again wouldn't speak to him, he said since she was upset, he said he was sorry, and gave her a hug. She remained unresponsive so he left, went back for his truck, and returned to finish working on the SUV at the garage.

[18] This was the last they saw of each other that day. The complainant did not report the incident to the police, and they next saw each other within a few days of this incident. The complainant’s sister had been hit by a car and a friend of the complainant told the accused of this. As a result, the friend and the accused came to the complainant’s house for support and comfort and they both stayed overnight.

[19] The next morning, the accused left to return to his house to get his PS4. The complainant stated when he returned, he was angry. The accused testified that while he was home his sister told him that the complainant had been seeing someone else unbeknownst to the accused. The complainant stated the accused was angry with her and confronted her about this. She admitted she had gone to a local Pow Wow with this other person but the accused had no right to be angry with her about it as she and the accused were not in a relationship.

[20] The two of them continued to argue over this until the accused got back in his truck to leave. The complainant states he was upset and said he was going to run the truck off the road and kill himself by hitting a tree. Despite everything that had happened she didn’t want him to do this so stood in front of the truck so he couldn’t leave. She then went and reached through the passenger window, removed the keys, and threw them away to stop him from leaving. Their friend that was there, heard the truck revving its engine and the commotion and had called the police. The police arrived and spoke to the complainant and it was as a result this interaction with the police that the alleged sexual assault incident was eventually disclosed.

[21] The accused version of what happened this day is different as well. He admits he stayed at the complainant’s after her sister was struck by the car. He also admits at some time the next day or so, he returned to his house. While at his house his sister told him the complainant had been seeing someone else. He states he then returned to the complainant’s house and asked her if this was true. She denied it and he said he asked her four times, very politely if she was seeing someone else. He states she denied it and became upset with him because he always believed his family members over her. The accused alleges the complainant responded to his polite questioning of her by “throwing a fit.” He says she began to yell and scream and pick up and throw items that were outside the house at the time. When she did this, he decided to calmly re-enter his truck and leave. According to him the complainant then crawled through the passenger window, removed the keys and threw them out the window. He stated he decided to get out of the truck and walk away and as he did so, the police arrived.

Applicable Legal Principles

[22] In order to secure a conviction in this case, the Crown needs to convince me beyond a reasonable doubt that the complainant did not consent to the sexual encounter inside the SUV and that the accused was aware that she did not consent. This means my assessment of the credibility and reliability of the evidence of the two witnesses will be determinative of the outcome of the case. If I am convinced by the evidence of the complainant, then findings that she did not consent to the sexual activity and the accused was aware of this lack of consent, are inevitable. If I were to believe the evidence of the accused, or if not believed, still have it leave me in a state of doubt, I would have to conclude the Crown has not proven the case and, acquit the accused.

[23] Making and articulating credibility findings is often the most challenging aspect of a judge’s duty. In addition to any physical or tangible evidence that may be presented there are also many intangibles and other impressions that go into the complex matrix when making credibility assessments. Articulating how these factors lead to a particular credibility finding can be a daunting task. The Supreme Court has recently recognized this in the case of R. v. G.F., 2021 SCC 20, as follows:

[81] As Slatter demonstrates, a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[82] Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.

[24] This case is no different. The challenge here comes from the fact there is no independent evidence, in the form of witnesses or otherwise to assist in the credibility assessment. Like noted above, this incident took place in private, with only the complainant and the accused present. As such, the case turns solely on the assessment of their evidence.

[25] As well, it should be mentioned, in this case it is the credibility of the witnesses that is germane. There was nothing that I concluded that would have impacted either witnesses’ ability to observe, recall, or recount the events accurately. Put another way, there was nothing that would cause me to believe they were incapable of being reliable witnesses. The defence pointed out the complainant acknowledged suffering from PTSD from some undisclosed past trauma and that she stated this could affect her memory. However, she also said this condition mostly affects her sleep and can cause nightmares but she said it had no effect on her memory of the events in this matter. Given her testimony and the lack of any other evidence presented on how PTSD can affect memory and perception, I find it is a non-factor in this case and did not detrimentally affect the complainant’s reliability.

[26] Much judicial ink has been spilled in discussing the interplay between credibility findings and the Crown’s burden of proof. Some more will be spilled here to try to reassure all involved in this case that I have done my best to apply the appropriate legal principles properly.

[27] First, it is always necessary to remain vigilant as to the Crown’s burden. In this, as in all cases, the accused is presumed innocent and the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a particularly high standard. It is a much higher standard than proof on a balance of probabilities which is the standard in a civil case. Proof beyond a reasonable doubt lies much closer to absolute certainty than to a balance of probabilities. See R. v. Lifchus, [1997] 3 SCR 320.

[28] In R. v. W.D., [1991] 1 S.C.R. 742, the Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives different version of events from the complainant or other witnesses.

[29] The framework when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. It reminds judges that this is not a simple credibility contest. It is not proper for me to choose which side has the more believable version. The side that tells the better or more believable version, is not by that fact alone, entitled to win.

[30] As well, if I do not believe a witness either entirely or on a particular point, it is not proper because of that disbelief, to simply conclude the other side’s competing version must be true or accurate.

[31] W.D. tells me to approach the case in this manner. First, I should ask myself if I believe the accused or any evidence presented at trial that is inconsistent with guilt. If I do, then the accused is entitled to an acquittal.

[32] The second part of the W.D. framework comes into play if I conclude I do not believe the accused or the evidence inconsistent with his guilt. If I do not, in order to remain focused on the Crown’s burden, I should ask if I am still left in a reasonable doubt by it. If I am, the accused is entitled to the benefit of that doubt and is again entitled to an acquittal.

[33] It is only after I have found that I do not believe the accused or the other evidence inconsistent with guilt, and this evidence does not leave me with a reasonable doubt that I should move on to the third part of the W.D. framework.

[34] This part of the framework reminds me that even if I have not believed the accused’s evidence and am not left with a reasonable doubt by it, that does not necessarily lead to a finding of guilt. I must then ask myself if based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I have to be convinced of the accused’s guilt beyond a reasonable doubt based on the evidence I do accept.

[35] Evidence of any witness, including that of an accused, can be rejected for many reasons. Some of the more obvious reasons are that the testimony given in court conflicts with statements made by the witness at prior times. This could be statements given to police, or things the witness said to others out of court. The testimony could be rejected because it changes as it’s given. For instance, when confronted with things in cross examination the testimony may change from what was given earlier. When the evidence defies logic or common sense, this is also a basis for its rejection.

[36] When the testimony of an accused does not have one of these flaws, it is still capable of rejection. This is what the Court of Appeal confirmed in R. v. J.J.R.D., [2006] O.J. No. 4749. In that case the Court stated an accused’s testimony can be rejected because it conflicts with other evidence that is accepted. Importantly, the accepted evidence relied on to reject the accused’s evidence can be that of the complainant. The court stated the principle in par 53 as follows:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[37] More must be said of some of these principles. Starting with W.D., the framework does not require me to assess the accused’s evidence in isolation and to proceed through the three steps in sequence. As Code J. said in R. v. Thomas, 2012 ONSC 6653:

[23] In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). See: R. v. Edwards, 2012 ONSC 3373 at paras. 13-25 (S.C.J.), where the authorities on this point are discussed at some length.

[24] Mr. Gold’s approach is unworkable in practice. A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

[38] What Justice Code in Thomas and the Court of Appeal in J.J.R.D., are stressing, is that the evidence of the accused, notwithstanding the wording of the three step process in W.D., is not to be assessed in isolation. The evidence of the accused, and all witnesses for that matter is to be assessed in the context of the evidence as a whole. That’s why, even though at first blush it may seem counterintuitive to the second step in W.D., the evidence of an accused can be rejected, even absent obvious flaws, simply on the basis of the acceptance of other evidence, including that of the complainant, so long as that acceptance is considered and reasoned.

[39] Something also needs to be said about making credibility assessments based on common sense and logic. Although it is permissible, one must be careful that, when assessing how anyone might or might not behave in any particular situation, that those findings have their root in the evidence presented in the case. Making generalized assumptions about how people will behave in any given situation is fraught with danger and, history has shown, were in the past routinely applied especially in cases of sexual assault. There was a time when it was taken for granted that a victim will always cry for help during a sexual assault, will always struggle mightily, will always immediately report the attack and would never associate with the abuser after the attack. If there was evidence that any of this did not happen, it was because the complainant was either lying or it was consensual.

[40] Thankfully, our current understanding of human behaviour, especially in the context of sexual violence is much more advanced. We now view these beliefs for what they are, myths. What we know now, and can say with certainty, is that there is no consistently predictable way a victim of sexual violence will react during the assault or behave thereafter.

[41] The Alberta Court of Appeal undertook a useful discussion of this kind of credibility assessment process in R. v. P.F.J., 2018 ABCA 322 as follows:

13 The trial judge was asked to draw inferences about the complainant’s credibility based on certain behaviours. The Supreme Court in R. v. Villaroman, 2016 SCC 33 (S.C.C.) at para 41 reiterated that inferences drawn from evidence must be assessed “in light of human experience and common sense”. There is a significant difference between assessing evidence in light of human experience and common sense, and relying on stereotypical myths. The latter is a form of impermissible reasoning and is the type of error committed in ARD, where the trial judge concluded that he “would have expected some evidence of avoidance” by the young complainant “as a matter of logic and common sense”, and that her lack of such behaviour was “significant enough to leave me in doubt about these allegations”. That reasoning was premised upon a stereotypical myth about how all sexual assault victims would behave and resulted in the conclusion that a failure to display such behavior rendered the complainant’s evidence of abuse less credible.

14 That type of stereotypical myth about sexual assault complainants is a form of prohibited reasoning and cannot be relied upon by triers of fact. However, triers of fact are entitled, indeed are required, to rely on common sense and human experience in assessing evidence and the credibility of witnesses, including reasonable assumptions about how ordinary people can be expected to act. That is what the trial judge did in this case. He declined to draw a negative inference about the complainant’s honesty from her behaviour because he recognized that there was an alternate explanation, that some behaviours could result from having been exposed to sexual abuse. That is not a controversial statement. In his weighing of the evidence, the trial judge decided not to draw any inference, positive or negative, from that behaviour, and he was entitled to come to the conclusion he did. Notably, he did not rely on the evidence of bad behaviour to bolster the complainant’s credibility, or to conclude that it made it more likely that she had been abused.

[42] What must be guarded against is reliance on labels such as “common sense” to mask what is really stereotypical thinking. I must caution myself against presuming I will know what a victim of a sexual assault will do in any given circumstance. Any findings I make need to have some supportive basis found in the evidence and should not be based simply on my own preconceived notions of human behaviour. The Ontario Court of Appeal discussed such a self caution in the case of R. v. J.L., 2018 ONCA 756 at paragraphs 46 and 47:

[46] The second basis for the trial judge's conclusion depended on an assumption about what a "young woman" will and will not do. As mentioned, the trial judge said: "I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity." In other words, the trial judge could not accept, or even have a doubt arising from, the appellant's evidence because the trial judge was of the view that young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge's assessment of whether, on the whole of the evidence, the Crown had proven the appellant's guilt beyond a reasonable doubt. I do not share the trial judge's view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.

[47] Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge's objective deliberation of the reasonable doubt standard. In R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99, at para. 75, Cromwell J.A. (as he then was) stated: "[A]ssumptions about the ways of the world appear to have contributed to the judge's failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt." Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge's reasoning, his finding of guilt was tainted by error.

[43] I mention these principles not only to demonstrate that I remained focused on the Crown’s burden, but that I am also trying to be careful not to delve into unsupported assumptions about the behaviour I would expect for either of the witnesses involved. It is important to remain vigilant about these principles in all cases but more so in this case because some submissions were made by defence counsel that could be interpreted as an invitation to engage in stereotypical myth type reasoning and comments regarding the manner of assessing the complainant’s evidence that could be viewed as problematic.

Applying the Legal Principles

[44] In applying these principles to the facts of this case, I will deal first with the comments made by defence counsel referred to in the previous paragraph. On more than one occasion, defence counsel made submissions that implied the testimony of complainants in sex assault cases is not held to the same standard as other witnesses or complainants in other types of cases. For instance, at one point when making submissions in relation to the credibility of sex assault complainants, counsel stated that he was mindful that “they're allowed some deference in assessment of credibility issues.” not long after counsel again stated he was “…mindful that the court give some latitude with respect to credibility of individuals who are involved in this sort of thing.”

[45] Comments like this are inaccurate. Testimony of complainants in sexual assault cases are not held to any different standard than any other complainant or witness. The law surrounding the assessment of the evidence of sexual assault complainants has not changed. What has changed is what was mentioned before. We now have a better understanding of human behaviour, especially as it related to victims of sexual violence. This has meant that we no longer take as a given the myths and stereotypical thinking that was once a hallmark of many sexual assault cases. The non-reliance on these myths, does not equate to a different standard.

[46] A further comment made by defence counsel that needs to be addressed was a comment made again in submissions as to how I ought to assess the complainant’s credibility. In this instance counsel said that he knew some allowance had to be made for “…not necessarily doing what would be logical in the circumstances” and by this he meant “…going over to hang out with the perpetrator for a day and a half” after the incident. When this issue was discussed later more directly, he acknowledged that he was:

“…mindful of the caselaw that says yes, when there’s sexual assault, sexual abuse, sometimes the abused goes back to the abuser, but that’s not an absolute. Some people have interpreted the caselaw to say, that I say not necessarily, I'd say you have to factor it in with other factors, but what’s going on in the circumstances, you make your judgment as to whether or not it impacts on their credibility. If I had my way, I'd say yes it does, the caselaw doesn’t seem to support it.”

[47] In his initial submission counsel said it was illogical for the complainant to interact with the accused after the incident. In the quote above he said caselaw seems to say that’s not an assumption I should make but at the end of his quote he seems to wish it was an assumption open to me. When writing this aspect of this decision I thought I should locate and quote some of the caselaw defence counsel said he knows is out there but he wishes wasn’t. However, I quickly decided that was unnecessary. I am still allowed to make credibility assessments based on common sense and human experience, I just must guard against those assessments being grounded in myths or stereotypical thinking.

[48] What I realized is that I do not need an appellate court to tell me that if I conclude a complainant must be lying because she went back to her abuser after the abuse, that I am relying on a myth and engaging in stereotypical reasoning. I don’t need a higher court to tell me that because my own human experience tells me on a daily basis that that is a myth. Everyday in this and other courts across the province, judges hear cases of sexual or domestic or other abuse where the victim has continued to interact or have a relationship with their abuser after the abuse occurs. What human experience has taught me, is that it is illogical to presume I know how a victim of abuse will react. Some will leave their abuser immediately, some won't. Some will report the abuse immediately, some won't. It is all dependant on the context and the circumstances of each case.

[49] In this case I can say that the fact the complainant continued to interact with the accused within the days following the alleged assault, did not in any way detract from her credibility. She and the accused had been friends for some time before the incident. Shortly after the incident she suffered another tragic and very traumatic event in her life when her sister was struck by a car. Not long after, she encounters the accused by and given what she is going through, I do not find it surprising she agrees to interact with him. As well, I would point out throughout this entire time, there are other friends with her and the accused, it is not a situation even where she is interacting with him alone. As such, her interaction with him after the incident has no impact on her credibility.

[50] In turning to the accused’s evidence, I find I do not believe him, nor has it left me with a reasonable doubt. When he testified, he did so in a calm and straightforward manner. He answered questions directly and without much hesitation. His evidence remained consistent through both direct and cross examination and there were no other inconsistencies exposed between what he said in court and what he may have said in police statements or to others outside court at other times.

[51] Standing alone and, viewed in isolation, there was nothing in his evidence that might lead to its rejection. However, as noted above, the assessment of the accused’s evidence is not to be made in isolation. His evidence is to be assessed in the context of the evidence as a whole.

[52] The evidence as a whole in this case, means the only other evidence heard, that being the testimony of the complainant. In relation to her evidence, I found her to have testified in an honest and straightforward manner. She was articulate and calm when testifying and her answers were responsive to the questions asked. At times she would take her time to answer questions of counsel, especially during cross examination. Defence counsel asked her why she did this and suggested she was trying to tailor her answers. Her response was that she was trying to get it right. This was the impression I got too, that she was a careful, honest witness who was trying to get it right.

[53] For both witnesses there were understandably, details they could not remember. This is not uncommon when testifying to events that have occurred some time ago. This case was no exception. The trial took place over two years after the events in question so some lack of memory, especially relating to minor matters or details is to be expected and I didn’t find either witness was trying to purposely deceive by claiming a lack of memory. In this regard for both witnesses if they said they couldn't remember something I accepted that.

[54] I am not rejecting the evidence of the accused simply because I believe the evidence of the complainant. This is a case though, where to a large extent the evidence of the accused is rejected based on my considered and reasoned acceptance of the evidence of the complainant as set out in J.J.R.D. I am rejecting the evidence of the accused because I find the complainant’s testimony as to what happened is true. I accept her version as true based on my finding that she is a credible witness who was telling the truth and in addition based on other areas of the evidence where both complainant and accused were in agreement, that has convinced me beyond a reasonable doubt the complainant’s evidence is what actually happened inside the SUV.

[55] The theory of the accused is that the complainant felt disrespected and upset by how the accused treated her both on the day of the incident and several days later when discussing her seeing another person. The argument is the accused did not show her enough kindness following the sexual encounter in the SUV. Instead of staying with her in the vehicle and making sure she was feeling better, he got out to continue working on the brakes and left her behind. This, the argument goes, caused her to feel disrespected and upset. Similarly, several days later when the accused confronted her about seeing someone else and when he wouldn't believe her denials, she again felt disrespected and upset. In order to get back at the accused, it was these two factors, plus needing an explanation for why she removed the keys from the truck and “threw a fit” that caused the complainant to concoct the sexual assault allegation.

[56] I do not accept this theory of the defence, because it is inconsistent in two important respects with the evidence presented at trial.

[57] What I find to be the most compelling evidence corroborating the complainant’s testimony is her demeanour immediately following the sexual encounter in the SUV. The complainant testified upon it ending, she got out of the vehicle followed by the accused. She then went back in, got her personal belongings, and tried to leave without being noticed. The evidence of the accused was clear on this point too, that when the encounter ended, the complainant got up, sat in one of the bench seats in the middle row of seats and was upset. He asked her what was wrong and when he didn’t get a response, only then did he get out of the SUV to continue working on the brakes.

[58] What is clear is that this evidence does not support the accused’s theory that the complainant became upset due his disrespect and inattention to her following the sexual encounter. His evidence makes it clear her upset was apparent even to him before he left the SUV to continue the work on the brakes and not only that, it continued long after his attention returned to her when he realized how upset she was.

[59] In this regard their evidence is consistent, they both testified that the complainant was upset as soon as the sexual encounter ended. This is further corroborated by her actions in walking a considerable distance to her home in a rural area, and by the fact her upset was noticeable enough for a stranger to stop to see if she needed assistance as well as her refusal to accept the help or apology of the accused. This demeanour of hers I find is inconsistent with a consensual sexual encounter taking place as described by the accused but is consistent with the non-consensual encounter described by the complainant. It is open for a court to use this evidence in this manner when appropriate and in this case, I find it is (see: R. v. P.R., 2014 ONCA 131, at paragraph 5).

[60] The other aspect of the defence theory inconsistent with the evidence relates to the so called argument they had a few days later after he confronted her about seeing someone else. The defence says the accused was calm throughout and the complainant “threw a fit” when he didn’t believe her denials. The complainant said it was the accused who became upset. I accept this. The complainant, on the evidence presented at trial had no reason to be upset by such an accusation or a disbelief in her denials. According to her, she and the accused were not in a relationship. The accused as well in his testimony confirmed this. He testified it was he who had asked the complainant to enter into a relationship with him but she had declined his advances. As such, were anyone to be upset about this, it is more likely it would be the accused than the complainant. They both acknowledged they were not in a relationship, she didn’t want to be in one, but he did.

[61] As such again I find that the defence theory that she would become so irate over his confronting her about dating another to be inconsistent with the evidence presented. Her testimony on this point though is consistent with the evidence and as such, I believe her on this point too.

[62] For the sake of clarity, I am not accepting the evidence of the complainant simply because I do not accept the accused’s theory for why she acted like she did. I accept her evidence and reject his for the reasons set out as above. The most compelling reason being her reaction and demeanour immediately following the sexual encounter in the SUV, upon which their evidence is consistent.

[63] As for the driveway incident several days later, although used by the accused as a means to bolster his attack on the complainant’s credibility, I find this attack misses the mark as well, and given the nature of their relationship, the evidence aligns with that of the complainant.

Conclusion

[64] It is for all these reasons that I have rejected the evidence of the accused. It is neither believed nor does it raise a reasonable doubt. I have considered his evidence carefully and in the context of the evidence as a whole. I have also carefully considered the evidence of the complainant and considered her evidence in the context of the entirety of the evidence and am convinced by it beyond a reasonable doubt. The incident in the SUV I find happened as she described and was not concocted, after the fact, to “get back” at the accused.

[65] It is on this basis that I find the Crown has proven the allegation beyond a reasonable doubt and a finding of guilt will be made on the charge.

Released: December 14, 2021 Signed: Justice R.S. Gee