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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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: 2022 04 29 COURT FILE No.: College Park, Toronto 21-75000573
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
A.M.
Judgment
Before: Justice B. Jones
Heard on: March 24, April 25, 26 and 29, 2022 Reasons for Judgment released on: April 29, 2022
Counsel: A. Linds, for the Crown S. Kelly, for A.M.
Jones J.:
Introduction
[1] A.M. is charged with the following offences stemming from events that occurred on October 9, 2020:
(1) Sexual Assault on K.J. contrary to Criminal Code section 271; (2) Mischief to K.J.’s property contrary to Criminal Code section 430(4); (3) Assault on K.J. contrary to Criminal Code section 266; (4) Sexual Assault on K.J. contrary to Criminal Code section 271; and (5) Threatening to cause bodily harm to K.J. contrary to Criminal Code section 264.1(1)(a).
[2] The Crown proceeded by summary conviction and his trial was conducted before me on March 24, April 25, 26 and 29, 2022. Before the conclusion of the Crown’s case, Mr. Linds invited me to dismiss count 4.
Crown Evidence
Testimony of K.J.
[3] K.J. is a student at the University of Toronto pursuing her bachelor’s degree in biophysics and public health. She resides in a 700 square foot one bedroom apartment in downtown Toronto.
[4] On October 9, 2020, she was at home, alone in her apartment. She was completing some schoolwork and unsure of her evening plans. A.M. contacted her via Facebook messenger at approximately 6 pm and asked if she wanted to meet for a drink at a local bar. She considered him a friend. She indicated she might attend there around 10 pm but did not set any firm plans.
[5] Several hours later she received a call from the lobby of her apartment building. It was between 8 and 9 pm. A.M. had attended at her building and wished to be let inside to see her. She granted him entry using the intercom system and he arrived at her apartment door. He banged loudly and when she opened the door she could immediately tell he was intoxicated. He walked right in and moved past her.
[6] K.J. was attired in grey shorts and a grey sweatshirt. She had not yet prepared herself to travel to the bar. She did not expect him to attend at her residence.
[7] He seemed to almost pass out on a couch in the living room. He rolled onto the floor and continued to act in an intoxicated manner. He refused her offer of food or water. Concerned about his well-being, she sent a message to his girlfriend, Ms. C.F., with whom she had a friendly relationship, using Facebook messenger. She asked C.F. to come and take him home and provided her address.
[8] She sat down on the couch to try and speak with him. He grabbed her by her hair and pulled her head down beside him on the couch. K.J. had long hair that went past her shoulders at the time. He would not release her when she asked him to let her go. He told her, “You like it, I know you like it.” She heard those words more than once. This lasted under a minute. It caused her pain and she became increasingly scared about what he might do next. She did not remember which hand he used to hold her head down.
[9] A.M. then asked about alcohol or drugs, and she told him she did not have any. He went to her bedroom and climbed on her bed. He rummaged through her night table and threw various items on the floor. She asked him to get off the bed as he was wearing his shoes.
[10] He pushed her into the bathroom which was located just across a narrow hallway from her bedroom. He held her against the vanity and put his hands underneath her sweatshirt. She asked him to stop. He replied, “I can touch you where I want to touch you.” His hands remained around her waist and underneath her sweatshirt. She tried to push his hands off but was not strong enough.
[11] At this point K.J. became concerned the situation was out of her control and might escalate with him touching her sexually or violently. A.M. removed his hands from her and returned to the kitchen where he continued to search for alcohol or drugs.
[12] He shook a bookshelf located next to the kitchen very hard in apparent frustration. K.J. kept telling him to leave. Most of her possessions on the bookshelf fell to the floor, including books, a laser printer, candles and pair of sunglasses. The items were damaged. She screamed out in shock. He called her a “psycho” and told her to calm down as it was just some books falling.
[13] One of the items that fell struck him on his foot causing it to bleed. She described this as “significant bleeding”, that was landing “all over the place.” She provided him with paper towels to stop the bleeding. He denied he had caused the accident and still would not leave.
[14] She contacted C.F. again via a social media app. A.M. took her phone from her and threw it across the room. She retrieved it and texted C.F. again. A.M. was continuing to yell at her. He told her, “You broke my foot you bitch.” At some point he retrieved the sunglasses that fell and threw them into a wall, causing them further damage.
[15] C.F. finally arrived at the apartment and sat down on the couch. She tried to mediate the situation. K.J. insisted that they leave immediately. At this point she had not been able to communicate to C.F. exactly what had occurred and why she was upset. A.M. denied he had done anything wrong to K.J. and continued to search the kitchen for alcohol.
[16] K.J. told him again there was no alcohol while they were both standing in the kitchen. A.M. raised one of his hands beside the side of her face as if he was going to hit her. C.F. inserted herself between them. K.J. told them both they needed to leave.
[17] C.F. took A.M. to the apartment door and he began yelling racial slurs at K.J. These were deeply hurtful to her. He also tried to throw items at her as he was leaving but C.F. stopped him. They finally left. K.J. estimated the entire incident lasted 20-25 minutes.
[18] She cleaned up the blood and tried to sort out her damaged possessions. She called her friends M.L. and B.L. They met at a bar around the corner from her apartment and she told them what happened.
Admissibility of Social Media Messages
[19] Mr. Linds introduced three sets of electronic messages during K.J.’s testimony. These messages were properly authenticated and met the criteria for admissibility required by section 31.1 of the Canada Evidence Act. The first set of messages constituted a brief Facebook messenger conversation with M.L. on October 9, 2020. It contained a photograph K.J. took of A.M. when he was on the floor in her living room. She sent it to M.L. at 8:38 pm. She clarified the photograph was taken within five minutes of him attending at her apartment. She also sent her a photograph of her damaged bookshelf with some of the books and other items on the floor around it.
[20] When presented with these messages, K.J. did not remember sending them to M.L. at the time indicated on the screenshot. She admitted her prior testimony was inaccurate as she originally only mentioned communicating with C.F. via Facebook messenger.
[21] The second and third sets of electronic messages were also obtained from Facebook messenger and were between K.J. and C.F. In these messages K.J. asked C.F. to come get A.M. and provided her address. She sent C.F. photographs to show her A.M.’s condition and the damage he caused to her apartment. The second set of messages included a symbol indicating that a two minute audio call occurred between 8:36 and 8:38 pm. This was when she spoke to C.F. about her attending to take A.M. home.
[22] The messages were presented via a screen capture that included an indication the two Facebook users could no longer communicate with each other, and K.J. explained following this incident they did not agree on the significance of what occurred and were no longer in contact.
[23] Mr. Linds sought to introduce a fourth set of messages between K.J. and A.M. These messages were sent a day or two after the incident. They consisted entirely of messages sent by K.J. to A.M. which detailed her recollection of what had occurred.
[24] No objection was taken by the defence to the admission of the first three sets of electronic messages. With respect to the fourth set, Mr. Linds submitted that the messages were relevant to establish they had been sent following the events that occurred on October 9, 2020, and they added some value as narrative evidence to fill in the chronology of events that ultimately culminated in K.J. reporting what happened to the police.
[25] Prior consistent statements are presumptively inadmissible. They violate the rule against oath-helping and trial judges must guard against the improper use of such statements and the inappropriate temptation to use “the mere repetition of a statement as a badge of testimonial trustworthiness”: see R. v. D.K., 2020 ONCA 79 at para. 35. As stated by the Court of Appeal in R. v. Khan, 2017 ONCA 114, leave to appeal refused [2017] S.C.C.A. No. 139, “consistency does not enhance credibility”: see para. 41.
[26] One exception to this rule permits the admission of prior consistent statements where they are “necessary” to understand the narrative of the Crown’s case, including its “chronological cohesion”: see R. v. Dinardo, 2008 SCC 24 at para. 37; R. v. F.(J.E.) at p. 476. This requires the statement to be “truly essential” for the trial judge to understand nuances in the narrative of events and how they may explain the actions of the complainant or another witness: D.K., supra, at para. 37; R. v. M.C., 2014 ONCA 611 at para. 91.
[27] I was not satisfied these messages met the requirements for admissibility under any form of the narrative exception to the general prohibition governing prior consistent statements and ruled them inadmissible. Ms. Kelly informed me she was not alleging recent fabrication and did not intend to rely upon them herself when cross-examining the complainant.
Cross-Examination
[28] In cross-examination K.J. was asked to clarify what A.M. said to her that she interpreted as a threat. She explained that his remarks in the bathroom were threatening, but also that he stated, “I’m going to break your head” when he raised his hand up next to her while they were in the kitchen. She did not mention this during her testimony in chief.
[29] She clarified she was physically in her kitchen when she sent an electronic message to C.F. for assistance initially. She was then confronted with her prior statement to the police which she provided on October 26, 2020. In that statement she told the investigating officer that she was “standing beside him beside the sofa” when this occurred. She acknowledged the apparent contradiction but explained that her apartment was designed as an open concept and there was little distance between the living room where the couch is located and the kitchen.
[30] Ms. Kelly presented K.J. with an image of a pair of damaged sunglasses. These were identified as the sunglasses A.M. broke. While she initially stated these were the only pair of sunglasses that were broken, she eventually changed her evidence and claimed that several pairs of sunglasses had been broken. They had been in a basket sitting on the bookshelf.
[31] She acknowledged that when A.M. confronted her in the bathroom and placed his hands on her waist, she did not perceive this as being done with any sexual intent. She did not believe he would take his actions any further but was nevertheless concerned about his conduct. Ms. Kelly also presented her with some electronic messages she sent to her friend M.L. shortly after these events occurred. K.J. accepted as accurate a copy of these messages wherein she also stated A.M.’s intentions did not seem sexual. These messages were made Exhibit 6.
[32] During her testimony in chief, K.J. was clear that A.M. never asked for C.F. to come to her apartment himself, but rather she chose to contact C.F. In cross-examination she was asked to explain a Facebook messenger message she sent to C.F. that evening which stated, “He wants you to come get him”. This was contained in Exhibit 3. She agreed she wrote this message and explained she had lied to C.F. in order to make it seem like the situation was not that serious. She did not want C.F. alarmed. But she maintained it was her idea to contact C.F.
[33] Eventually, C.F. arrived. K.J. remembered C.F. was present when A.M. uttered a threat to her and made the racial utterances as he was leaving.
[34] She denied the suggestions put to her by Ms. Kelly that she owed A.M. a bottle of Jamieson whiskey and $200, or that she misled him into believing there was alcohol or cocaine in her home. She further adamantly denied that the violence and threatening behaviour she experienced did not happen.
Testimony of C.F.
[35] C.F. had been friends with K.J. but after these events they stopped communicating. She identified her Facebook messenger messages with K.J. that formed Exhibit 3. When she received the message which stated A.M. wanted her assistance, she decided to travel to K.J.’s apartment building. She arrived there at approximately 8:49 pm.
[36] She made her way to K.J.’s unit where she noticed the door was slightly ajar. She located A.M. sitting on the couch. She asked K.J. if she was ok. She replied, “Yes”, but she wanted him to leave. They were both visibly upset. She and A.M. left together. Nothing was said before she left that was particularly noteworthy. She noticed that A.M. appeared to have consumed a few drinks earlier in the evening but she did not testify he was extremely intoxicated. She saw some blood on the floor in the apartment, but described it as being only a few drops.
Relationship Evidence
[37] During her examination in chief K.J. testified that she had been in a prior romantic relationship with A.M. and at one point offered up some very private details in a vague manner. After she made this statement, I asked counsel if they were intending to explore any prior relationship evidence between the parties. The defence did not file an application pursuant to Criminal Code section 276 and the Crown did not bring an application pursuant to the common-law principles articulated in R. v. Seaboyer: see also R. v. Barton, 2019 SCC 30 at para. 80, and R. v. Goldfinch, 2019 SCC 38 at para. 75.
[38] In Goldfinch, the Supreme Court noted that “[e]vidence of sexual relationships must be handled with care in sexual assault trials”: see para. 73. While evidence of a prior relationship may provide relevant contextual evidence depending on the particular issues that arise in a given case, a prior application by the party seeking to introduce this evidence is required before a determination can be made with respect to its admissibility and ultimate use, if any.
[39] As no application was brought, I ruled I would not consider any prior relationship evidence accordingly beyond the agreement of the parties that K.J. and A.M. had briefly dated and he had been to her apartment in the past.
Defence Evidence
Testimony of A.M.
[40] A.M. met K.J. in November 2019. They were familiar with one another. He had been to her apartment at least five times previously.
[41] He was working on October 9, 2020 at The Carbon Bar. Due to the implementation of COVID-19 regulations they were unable to remain open for patrons and he was no longer required that evening. He volunteered to leave work early. He contacted K.J. and made tentative plans to go out later to the Triple A bar which was in her neighbourhood.
[42] He did not have a phone plan and his mobile device therefore only worked when it had access to wi-fi. He arrived at K.J.’s apartment around 8:30 pm and had to contact her on the intercom system so she could grant him access to the building.
[43] Prior to leaving The Carbon Bar he had one or two beers around lunchtime and a shot of whiskey after 8 p.m. He had not consumed any other alcoholic beverages that day.
[44] K.J. invited him up to her apartment and told him she had a bottle of whiskey for him. She owed him this bottle as a result of a bet she lost earlier that year. When he arrived at the entranceway to her unit he removed his shoes and left them by the door. He noticed that K.J. was still in her pajamas which surprised him, as he expected they would soon be heading out.
[45] She told him to wait. He asked her if she had the bottle of whiskey she promised him but she did not. He admitted he found this frustrating but he was otherwise in a good mood. He realized he would have to wait for some time as she prepared herself for their evening out. In order to pass the time he attempted to remove a book he found interesting from her bookshelf. Unfortunately, as he removed the book, two other books were inadvertently dislodged and fell to the ground. One struck his left foot injuring his big toe.
[46] This caused him tremendous pain. He hobbled over to retrieve his shoes and then attempted to make his way to the couch in her living room. He took a cushion from the couch and placed it on the ground so he could use it for support. The photograph depicting him on the floor of the apartment contained in Exhibit 1 captures this moment.
[47] He was concerned about the injury to his toe. He decided to reach out to C.F., whom he considered a friend, for help. He was unable to reach her on his phone as she did not appear to be online and thus he could not reach her via the apps he commonly used. Instead, he asked K.J. to call her (as his phone did not have a service plan.) She contacted C.F. accordingly.
[48] He removed his sock to better inspect his foot and a few droplets of blood landed on the floor. It was not a large amount of blood.
[49] He denied taking part in any physical violence or threatening behaviour. He reviewed the photograph of the bookshelf which depicted it in much greater disarray than he described and stated he never saw it in that condition while he was present at the apartment.
[50] CF arrived within approximately 15 minutes and they left together.
Position of the Parties
[51] On behalf of the Crown Mr. Linds submits I should reject A.M.’s evidence. He was intoxicated that evening, the sequence of events he described was illogical, and the accepted social media evidence undermined parts of his narrative. A.M. was conveniently exaggerating the state of the injury to his toe to explain why the photographs were taken.
[52] By contrast, K.J. was a credible and reliable witness whose testimony aligns with common sense. She gave careful answers, thinking through her responses as she appreciated the solemnity of appearing in a court of law. She was not revealed to have been inconsistent on any important aspect of her testimony in chief. She answered questions directly and without any attempt to avoid providing truthful responses.
[53] She did not consent to any physical contact that evening. A.M.’s conduct in the bathroom constituted a sexual assault. Viewed objectively, the circumstances of this assault were of a sexual nature, considering the parts of her body touched and the words A.M. stated at the time. A.M. attempted to take advantage of her while in an extremely intoxicated state without care or regard for her personal autonomy.
[54] A.M.’s decision to shake the bookshelf and damage her property constitutes the offence of mischief, as the mens rea for that offence includes recklessness.
[55] Ms. Kelly submits that I should accept A.M.’s evidence. His evidence was logical and not diminished by cross-examination. He did not seek to undermine K.J. as a person and a former friend of his, but rather simply disputed the allegations of criminal behaviour. At a minimum, his testimony should leave me with a reasonable doubt.
[56] She further submits that K.J.’s testimony was not credible. She repeatedly deflected answering questions and engaged in avoidance tactics. When asked to explain why she was adding new and sometimes surprising details in cross-examination, she said she had not been asked about the subject area previously, even though she clearly had been. She would on occasion not answer a question directly when it was asked about the sequence of events that evening, and instead would offer up an unprompted critical remark about A.M.’s conduct or character. Many of her allegations appear to have been exaggerated. On key points, her testimony differed from that of C.F., including whether or not A.M. uttered a threat or made a racially disparaging remark.
Presumption of Innocence
[57] A.M. is presumed innocent. The Crown bears the onus of proving the case against him beyond a reasonable doubt see R. v. Lifchus.
Witness Testimony, Credibility and Reliability
[58] In R. v. W. D. (1991), the Supreme Court of Canada emphasized that criminal cases are not credibility contests. The court provided the framework for assessing witness testimony in cases that centre on the credibility of witnesses who have given different versions of the relevant events:
- If I accept the testimony of the accused he must be acquitted.
- Even if I do not believe the testimony of the accused, if I find I am nevertheless left with a reasonable doubt, I must acquit the accused.
- Even if the defence evidence does not leave me with a reasonable doubt, I must consider all of the evidence including the evidence adduced by the Crown when determining if the Crown has proven beyond a reasonable doubt all of the essential elements of the offences against the accused.
See also R. v. H.C., 2018 ONCA 779 at paras. 7-8.
[59] When assessing the testimony of witnesses in a sexual assault trial, it is vitally important that the court not apply inappropriate stereotypes. This applies to the testimony of both the accused and the complainant: see R. v. J.C., 2021 ONCA 131 at paras. 75-77. However, where the Crown’s case relies on the testimony of a single witness, the testimony of that witness must be carefully and critically reviewed in the context of all the evidence presented at the trial. Crucial to assessing the credibility of a witness is to consider the presence and significance of any inconsistencies with prior statements given during the course of the investigation or between her examination in chief and cross examination: see R. v. A.M., 2014 ONCA 769 at para. 12.
[60] It must always be remembered that there is no inviolable rule about how a victim of sexual abuse will behave: see R. v. D.K., 2020 ONCA 79 at para. 57.
Analysis and Findings
A.M.
[61] I found A.M. to be a credible witness. He testified that he knew K.J. well and attended at her apartment because they had plans to go out later that evening. His place of work was only a short distance from her residence. He had one or two beers at lunch and a shot of whiskey before leaving but did not consider himself drunk. He was 6’4” and 190 lbs and in his experience it would take much more alcohol to have that effect on him. I accept his testimony about his degree of intoxication.
[62] His testimony with respect to the events that occurred within K.J.’s apartment was coherent and logical. He admitted he expected she would be ready to head out for their evening plans and was somewhat frustrated that she was still in her sleepwear when he arrived. He expected she would have something for them to drink – including the bottle of whiskey she owed him from a lost bet – but she did not. He approached the bookshelf looking for something to read to occupy his time and after he selected a book one or two other books dislodged and fell on his foot causing the injury to his toe. This caused him considerable pain and he hobbled over to retrieve his shoes and then the couch area to attend to his injury.
[63] He had to sit himself down on the floor and retrieved a cushion to make himself more comfortable. This is confirmed by the photograph contained in Exhibit 1. He testified he was in considerable pain and that was why he lay on the floor. He was not seriously challenged on this aspect of his testimony in cross-examination and I find it is a plausible explanation for what is depicted in the photograph. The injury of his toe was also corroborated by a photograph contained in Exhibit 3.
[64] He knew he wanted to leave but he was unable to contact C.F. for help because his phone did not have a regular service plan. He asked K.J. to contact C.F. by calling her. This was confirmed by the messages K.J. sent to C.F. that it was A.M. who asked her to make that call.
[65] Importantly, his testimony was confirmed by C.F.’s testimony in all aspects after she arrived at K.J.’s apartment. Where there is confirmatory evidence of a witness’ testimony, that may impact the court’s credibility assessment, even where that evidence may not directly confirm or contradict the offences themselves: see R. v. J.B., 2022 ONCA 214 at para. 34. In this case, the confirmatory evidence of C.F. directly contradicts the Crown’s case on the threatening count and lends support to A.M.’s version of events more broadly.
[66] Some features of A.M.’s testimony caused me some minor concern. On his version of events, there was simply no persuasive explanation for why he and K.J. appeared visibly upset when C.F. arrived. Nevertheless, there is no onus on the defence to prove anything. He did not gratuitously call into question K.J.’s character at any point during his testimony. He did not dispute that they had been friends. He simply denied he verbally or physically assaulted K.J. at any point during his brief time at her apartment. I found him to be a credible and reliable witness. I accept his evidence that he did not sexually assault, assault or threaten K.J. I also accept his evidence that he did not intentionally damage any of her property.
K.J.
[67] I have serious difficulties with respect to K.J.’s testimony. While she generally answered questions clearly and responded directly to suggestions put to her in cross-examination, much of her testimony was characterized by repeated claims she could not recall details of the evening. This left some significant ambiguities in her evidence calling into question her reliability. Additionally, there were some significant inconsistencies between her testimony in chief and cross-examination, as well as with her prior statement to the investigating officers.
[68] She was unable to explain how or when A.M. removed his shoes when he entered her apartment. In the photograph of him lying on the floor that forms part of Exhibit 1 his shoes are off his feet and are located beside him. She testified this photograph was taken shortly after his arrival. This minor detail took on more significance when she testified that he then entered her bedroom wearing these shoes, and still had them on when the items fell off her bookshelf and injured his foot. The lack of any explanation for when or why A.M. removed his shoes initially and then placed his shoes back on his feet before causing mischief in her bedroom during this short time period was noteworthy. It does not seem logical to me that he would collapse on the floor with his shoes off for no apparent reason immediately after arriving at the apartment, then place them back on simply to walk over to her bedroom and stand on her bed.
[69] In cross-examination she was asked several questions about the electronic messages she exchanged with her friend M.L. She testified in chief that she had contacted M.L. after the incident, but not during it. This was inaccurate, as she acknowledged, and stated that she did not remember sending the messages at the time indicated on them.
[70] With respect to the messages she exchanged with C.F., K.J. deviated from her original testimony that she decided to contact C.F. on her own initiative. When she was confronted with the message that stated A.M. wanted her to contact C.F. she attempted to explain this inconsistency by stating that she lied intentionally to C.F. when she wrote that message. I am troubled by this change in her evidence and conclude she was not sure if it was her own idea to contact C.F. It calls into question her credibility to a degree and is yet more evidence of her lack of reliable, detailed memory of the events that allegedly took place. She ultimately accepted she did not remember whose idea it was to call C.F. when pressed on this point by Ms. Kelly.
[71] K.J. also embellished her testimony. She did not mention any explicit verbal threats to cause her harm during her evidence in chief, but when asked about this by Ms. Kelly she added a significant new detail that when he raised his hand beside the side of her face while she was in the kitchen he stated that “I’m going to break your head.” She explained this omission was due to the fact Mr. Linds did not ask her specifically about such a threat, even though his questioning clearly asked her to explain everything of significance that occurred that evening including what was said to her by A.M. I do not accept her explanation in this regard. Rather, I find she was willing to distort the truth of her testimony in cross-examination and add details she thought would make her version of events more compelling. Identified examples of embellishment are evidence of incredibility: see R. v. Kiss, 2018 ONCA 184 at para 52.
[72] She also described a considerable amount of bleeding that resulted from A.M.’s injury which was “all over the floor.” She felt compelled to clean this up immediately after A.M. left. Yet the photograph of his injury does not suggest it produced that much bleeding and the photograph of the bookshelf and the surrounding area shows no blood at all. Furthermore C.F. did not mention seeing any more than a few drops of blood on the apartment floor.
[73] Other features of her narrative also evolved or changed noticeably in cross-examination. She remembered that multiple pairs of sunglasses were damaged in addition to the pair she said A.M. threw across the room. She remembered the hoodie she had been wearing that evening and described it in detail, but then stated she did not remember it at all, and was unsure about that aspect of her attire. Whether she was standing beside him at the sofa when she texted C.F. or whether she was in the kitchen as she told the investigators was dismissed as irrelevant by her as her apartment was an “open concept” with little distance between these two rooms. But these details changed, noticeably, between the different times she answered questions about what occurred on this evening and I find she was careless with the truth.
[74] Her evidence also clashed dramatically with that of C.F. with respect to what did or did not occur after C.F. arrived at the apartment. C.F. testified clearly and in a straightforward manner. She did not hear any threats, or racial slurs, nor did she witness any aggressive or violent behaviour. This was a major contradiction with K.J.’s evidence. I accept C.F.’s testimony in this regard. She did not have any motive to lie as she was simply a friend of A.M.’s at the time of this incident and at the time of her testimony. She was called as a Crown witness and neither party suggested she was biased and tailoring her evidence for any reason.
[75] There were many times during her testimony that K.J. said she could not remember. Repeatedly, K.J. claimed that it was unfair to expect her to have a detailed memory of what happened to her over 18 months ago. None of these examples of frailties with her evidence, by themselves, would cause me to have doubts about her credibility or reliability. She testified she experienced verbal and physical abuse and she should, understandably, not be expected to have a flawless memory of each and every minor aspect of what occurred: see R. v. G. M.C., 2022 ONCA 2 at para. 38. Nevertheless, the quality of her memory of the events that occurred that night was problematic and I find generally not reliable. Certain aspects of her testimony were inaccurate when compared to the rest of the Crown’s evidence such as the timing of the electronic messages sent to M.L. and C.F.’s testimony about what did, or did not occur, when she was present in the apartment.
Conclusion
[76] Considering all of the evidence, I find the Crown has failed to prove the offences beyond a reasonable doubt. A.M. is therefore not guilty of all charges.
[77] I thank Mr. Linds and Ms. Kelly for the extremely efficient and professional manner with which they presented this case to the court.
Released: April 29, 2022 Brock Jones Signed: Justice Brock Jones