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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Ontario Court of Justice

Date: 2022 07 14 Court File No.: Central East Region: Oshawa Courthouse: File # 2811-998-21-21987

Parties and Counsel

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.A.

Before: Justice Peter C. West

Evidence Heard on: May 17 and 18, 2022 Oral Submissions Made on: June 13, 2022 Reasons for Judgment: July 14, 2022

Counsel: Ms. Yorgiadis — counsel for the Crown Mr. M. Jacula — counsel for the defendant S.A.

Reasons for Judgment

WEST J.

[1] S.A. is charged with sexual assault, contrary to s. 271 of the Criminal Code of Canada, of B.T., his wife, on June 30, 2021. The Crown called two witnesses, the complainant B.T., and J.B., a friend of B.T. S.A. testified on his own behalf and two agreed statements of facts were filed, respecting P.C. Travis Rodgers and D.A., which obviated the necessity of both of these witnesses having to testify.

[2] As in any criminal case, S.A. is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[3] The onus remains on the Crown to prove S.A.’s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt. Of course the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt and the application of W. (D.) should not result in a triumph of form over substance. As Justice Cory reiterated in R. v. S. (W.D.), there is no “magic incantation.”

[4] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.); Avetsyan v. The Queen.

[5] As the Ontario Court of Appeal in R. v. Hull, noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[6] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[7] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant’s evidence but still not being sufficiently satisfied by the complainant’s evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus.

[8] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[9] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

[10] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman, is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” (see R. v. Wu).

[11] Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[12] These are the principles I must use in my assessment of the totality of the evidence led during S.A.’s trial.

[13] The facts in this case are relatively uncomplicated and ultimately the main issue to be determined is my assessment of the credibility and reliability of the witnesses who testified and whether considering the totality of the evidence led during this trial that the Crown has proven the essential elements of the offence facing the defendant beyond a reasonable doubt. For the reasons which follow it is my view that the Crown has failed to meet the burden of proof beyond a reasonable doubt and as a result S.A. is acquitted of the charge of sexual assault.

[14] I do not intend to go through all of the concerns I have respecting B.T.’s evidence, suffice it to say she often had great difficulty recalling specific details of the events leading up to her allegation. One of her frequent responses to questions put to her in cross-examination was “I don’t remember” or “I don’t recall.” In my view the frequency of this reflected detrimentally on B.T.’s reliability and credibility. B.T. often could not provide answers to simple questions about details one would have expected her to recall. On a number of occasions her evidence in chief, which she had testified to with certainty, significantly changed in cross-examination, such that her new evidence was completely inconsistent with what she had previously testified to. I also have similar concerns respecting J.B.’s evidence, which I found to be evasive on a number of occasions, as well as proven to be inaccurate to the point where in my view this demonstrated his being caught in an outright lie. J.B. on occasion appeared to have an agenda to portray himself and B.T. in the best possible light. When J.B. was challenged on his recollection of the events from January 29 to 30 he testified, “my memory is very, very vague, as a lot of matters were happening in my life right now.” He never indicated what these matters happening in his life were.

[15] On January 29, 2021, J.B., who was a mutual friend of B.T. and her husband, came to their house to hang out. J.B. had been S.A.’s mechanic and as a result they had become friends. J.B. was also dating and living with S.A.’s sister, Ms. A. The evidence disclosed that the two couples had spent time with each other at a trailer, at each other’s homes and they went out double dating together. J.B. and Ms. A. had apparently been having difficulties in their relationship. One of the first areas of discrepancy arose concerning who invited J.B. to come to the A. residence to hang out on January 29, 2021. The discrepancy was whether J.B. asked S.A. if he could come over to the A. residence to hang out or if S.A. invited him to come over to hang out or whether B.T. had invited him. Whoever invited him the fact remains J.B. spent the entire time he was at the A. residence with B.T. in the garage, talking, smoking cigarettes and drinking beer. He did not hang out at any time with S.A., not even when S.A. prepared dinner for everyone who was at the house. In Exhibit 4, which is an Agreed Statement of Facts relating to P.C. Rodgers’ evidence, who was the first officer that interviewed B.T. on April 9, 2021, concerning her allegations, his Report was included and the following is recorded:

B.T. informed police that on Friday, January 29, 2021, she hosted friends, J.B. and R.B. (approximately forty two years of age) at her residence of […], Bowmanville for drinks. B.T. advised that the parties were consuming beer in the garage while S.A. was inside the home sleeping. B.T. could not recall the exact time that R.B. and J.B. attended the home. B.T. informed police that R.B. was only present on the property for a short period time before proceeding back to his home address in Oshawa (exact address unknown at this time).

[16] It is my view this demonstrates it was B.T. who decided she wanted to have two of her friends, R.B., who was there in the afternoon but did not stay long, and J.B., come and spend time with her and she made the arrangements and I make that finding. This becomes important when considering other evidence respecting the relationship that existed between B.T. and J.B. on January 29/30, 2021.

[17] A further area of discrepancy related to how much beer had been consumed by J.B. and B.T. while they were together in the garage. It is my view both B.T. and J.B. were attempting to limit their consumption of beer, although both B.T. and J.B. agreed J.B. had consumed too much beer to be able to drive home from the A. residence and as a result, B.T. arranged for him to sleep on the couch in the living room down the hall from the master bedroom providing him with blankets and a pillow. B.T. testified the case of beer purchased by J.B. had 15 beer and all were gone by the end of the evening. J.B. did not agree with this. He testified he only consumed 6 or 7 beers but B.T. testified she only had 4 to 5 beers as she was not a heavy drinker. B.T. thought J.B. had at least 10 beers because none were left. S.A. testified he cleaned up the empty cans the next day and J.B. had brought a case of 24 plus 4 bonus beers and there were no unopened cans, but there were a few cans still half full.

[18] B.T. agreed that their two boys (M., age 8, and D., age 13,) were in the house, either playing video games or watching a movie with their father, S.A. The evidence disclosed that it was S.A. who was attending to his boys needs on January 29, 2021. S.A. testified he prepared dinner for everyone-chicken wings, which he got from the freezer in the garage. J.B. testified that S.A. came into the garage and got chicken wings from the freezer, which he then cooked for dinner. S.A. testified he got the boys to say good night to their mother before he put them to bed. B.T. did not recall that and thought she might have gone into the house to put the boys to bed but ultimately she agreed it was probably S.A. who put the boys to bed. In my view the evidence was clear that J.B. spent the majority of his time alone with B.T. in the garage. B.T. also told P.C. Rodgers’ that her husband was frustrated she was socializing with friends in his absence and he came into the garage on numerous occasions asking when she was coming to bed. The final time was at 4:30 a.m. when he came in and asked her again when she was coming to bed and she advised him she would be coming inside when they finished their last beer. S.A. testified he had gone to bed and was awakened by a loud bang around 4:30 a.m. He checked on the boys who were both sleeping and went into the garage where B.T. and J.B. were still sitting and drinking. He told them it was 4:30 and they should come into house and they told him they would finish their beer and come in and J.B. was going to sleep on the couch. B.T. agreed this is what occurred. She told P.C. Rodgers that S.A. left and went back to bed.

[19] The next discrepancy respected the period of time J.B. and B.T. spent together: either from early afternoon (2:30 - 3 p.m.) on January 29 until 2:30 a.m. on January 30 (J.B.’s evidence) or from 8 or 9 p.m. to 4:30 a.m. (B.T.’s evidence). On either version, B.T. and J.B. were together in the garage for at least 8 1/2 to 12 hours. It is my view the gathering probably started sometime in the afternoon on January 29 because R.B. was only there for about an hour in the afternoon according to all of the witnesses and both B.T. and S.A. make reference to the 4:30 a.m. occasion that S.A. last went into the garage and B.T. came to bed shortly thereafter. Both J.B. and B.T. testified in their evidence that S.A. was only popping into the garage on the odd occasion. S.A.’s evidence was that he was looking after the boys, making dinner, putting them to bed and then going to bed himself around 11 p.m.

[20] B.T. testified S.A. was already in bed when she came into the bedroom after 4:30 a.m., after she provided the bedding to J.B. in the living room. J.B. testified S.A. was still playing video games in the living room when he came in from the garage to sleep on the couch. J.B. testified he asked S.A. how it was going, S.A. said it was good. J.B. said he was going to stay over and sleep on the couch, so S.A. got up and went down the hall to the bedroom where J.B. said B.T. had already gone to go to bed. Both versions by B.T. and J.B. cannot be true. In fact, B.T. also told P.C. Rodgers on April 9, 2021, her husband had gone to bed earlier in the evening before she and J.B. were finished in the garage. I find S.A. was already in bed when B.T. went into the bedroom after getting J.B. settled.

[21] The evidence of B.T. and S.A. as to what occurred in their bedroom after B.T. got into bed is diametrically opposed. If the conduct of S.A., as described by B.T. was believed it would clearly amount to S.A. sexually assaulting her after she got into their bed. S.A.’s evidence provided a completely different version of events, which if believed would not amount to his sexually assaulting his wife. Their descriptions of what occurred are completely inconsistent and diametrically opposed. The total time for the incident described by B.T. was a matter of only a couple of minutes. S.A. described an argument occurring where he was asking about what she and J.B. had been doing in the garage. B.T. testified in her evidence there was no argument of any kind between herself and S.A., although she did tell P.C. Rodgers that she and S.A. had argued over J.B. prior to S.A. sexually assaulting her. Again, this is an inconsistency between her evidence at trial and what she told P.C. Rodgers.

[22] J.B. testified he overheard B.T. and S.A. having an argument during which he heard B.T. say “S., please stop.” In his testimony J.B. also said he heard B.T. say, “Enough is enough.” In cross-examination he agreed he did not include anything about overhearing B.T. say, “Enough is enough” in his email statement to Detective Whelan, which is dated December 10, 2021. When he was challenged about this he indicated he was a little nervous testifying as an explanation for why he added this. He was sure he heard B.T. say, “Please stop.” He was with B.T. in Niagara Falls when he wrote the email to Detective Whelan. He testified, “Jodi (Det. Whelan) called me and emailed me,” and he responded immediately. In my view J.B. reluctantly agreed his addition was inaccurate but in my view this was another example of his responses being evasive and untruthful. I would describe this as an example of J.B. deliberately manufacturing corroborative evidence to support B.T.’s allegations, despite his concession of not actually knowing what took place in the bedroom between B.T. and S.A.

[23] It was J.B.’s position B.T.’s comments were loud enough to wake him up from being asleep. I find it hard to believe, based on the evidence, that in fact J.B. had sufficient time to fall asleep. The difficulty I have with this aspect of J.B.’s evidence is that on B.T.’s evidence, S.A. had come into the garage around 4:30 a.m. and asked when she was coming to bed, she told him they had to finish their beers and cigarettes, S.A. left and she and J.B. finished their beer and cigarettes, at some point they went into the house, they had a discussion about J.B. sleeping on the couch, B.T. got blankets and a pillow for J.B. and set him up on the couch in the living room. S.A. was already in the bedroom asleep. B.T. testified she got ready for bed in the bathroom, changed out of her clothes, went into the bedroom, got into the bed where S.A. was already lying and then the two of them had a conversation. In my view it is a reasonable inference these activities would have taken some period of time, perhaps as much as 30 minutes. B.T. testified the sexual assault occurred within a minute or so of her getting into the bed. The sexual assault itself according to B.T. only lasted a couple of minutes and was not a very long period of time. The text messages initiated by J.B. in Exhibit 1 commence at 5:05 a.m. Of course J.B.’s evidence was that he began sleeping on the couch at 2:30 a.m., which is in conflict with B.T.’s and S.A.’s evidence. B.T. told P.C. Rodgers that S.A. came to the garage at 4:30 a.m. and suggested B.T. should come to bed, after which she described the sequence of events described above occurring. I have already expressed my view of J.B.’s evidence concerning S.A. still being up playing video games in the living room – this did not occur, nor did B.T. go to bed before S.A. In my view J.B.’s assertion of being awakened by B.T. saying, “Please stop,” is something he manufactured having regard to the evidence respecting the timing of the events after 4:30 a.m.

[24] J.B. texted B.T. as a result of hearing what he believed was an argument and B.T. saying, “S. please stop.” Exhibit 1 is a screen shot of a text conversation between J.B. and B.T. commencing at 5:05 a.m. This screen shot was provided to Detective Whelan by B.T. during her video-taped interview. I do not know if Detective Whelan saw the actual text conversation and took a screen shot or if B.T. only provided the screen shot to him. When B.T. testified in chief and initially in cross-examination she maintained Exhibit 1 was the full text conversation between herself and J.B. B.T. testified when she got in the bed she put her cell phone on a night table beside the bed. After the sexual assault S.A. left the bedroom and went into the kitchen, B.T. testified she believed he got a glass of water as she heard glasses tinkling. When he left she heard her phone sound and this was when she and J.B. exchanged texts. The following are the texts provided by B.T. to Detective Whelan, which appear to be a screen shot of J.B.’s phone 7053441021:

J.B. : You ok Heard the yelp for stop … ( worried emoji ) 5:05 a.m. ( B.T. ) Read 5:07 a.m. I’m ok J.B. : Good 5:07 a.m. ( B.T. ) Read 5:08 a.m. I’ll go outside if I have to ( female emoji ) J.B. : Ok ( B.T. ) Read 5:09 a.m. Or on the chair ( smiling/blushing emoji )

[25] B.T. identified the screen shot as something she took. Initially she could not recall when it was taken but then testified the screen shot was taken by her in January. The screen shot of J.B.’s phone, filed as Exhibit 1, ends with the text “or on the chair,” which B.T. testified was in the living room and it appears that the bottom of the circle surrounding this last message has been cut off at the bottom. This is significant because B.T. showed a text conversation exchange between herself and J.B. to P.C. Rodgers on a cell phone when she was interviewed on April 9, 2021, shortly after calling 911. P.C. Rodgers did not take a screen shot of the text conversation he was shown by B.T. but he wrote down the entire conversation he was shown and it contains two additional texts not provided to Detective Whelan in the screen shot marked as Exhibit 1. Both B.T. and J.B. in their testimony maintained Exhibit 1 was the full text conversation they had during the early morning hours (5:05 to 5:09 a.m.) of January 30, 2021, and no further texts were exchanged between them after what is on the screen shot. They both indicated they did exchange further text conversations after they awakened around 10:00 a.m. on January 30, 2021. Those text messages were not provided or shown to the police by B.T. and were not provided during the trial. However, this evidence was inaccurate and in my view misleading. When P.C. Rodgers was shown the text conversation he recorded the following two additional text messages in his Report, which was part of the Agreed Statement of Facts – PC Travis Rodgers (Exhibit 4) filed by the defence.

( B.T. ) Read 5:09 a.m. Literally ( J.B. ): ( male and female kissing emoji )

[26] The importance of these two additional texts relates to the reasonable inference suggested as to the nature of the relationship that existed between B.T. and J.B. on January 29 and into the early morning hours of January 30. Both B.T. and J.B. were adamant in their testimony that the screen shot provided by B.T. to Detective Whelan reflected the complete and only text messages sent by each during the early morning hours of January 30. It was only after they were each confronted in cross-examination with P.C. Rodgers’ notes of the text messages he saw and recorded in his Report on April 9, 2021, when he interviewed B.T. that B.T. and J.B. conceded there were other text messages not included in the screen shot. J.B. testified he had no memory of these two additional texts observed and noted by P.C. Rodgers. When J.B. was asked what he was trying to communicate to B.T. by posting a male and female emoji kissing, he said, “We were flirting obviously,” which he said was “mutual between us.” This in my view is completely contrary to and inconsistent with his evidence in chief respecting his relationship with B.T., as well as B.T.’s evidence respecting their relationship. A troubling question that arises given these two texts not being provided in the screen shot given to Detective Whelan by B.T. is whether other text messages were exchanged in the early morning hours of January 30 that were also not provided to P.C. Rodgers or Det. Whelan. In my view this raises serious concerns as to the authenticity and completeness of the text messages provided, as well as the weight the Crown submitted I should give to them as being corroborative of B.T.’s allegations of being sexually assaulted by S.A. after she went to bed. In my view little weight should be given to the text exchange between B.T. and J.B. as there is a reasonable inference available that B.T.’s comment, “S., please stop,” is equally consistent with S.A.’s evidence that B.T. said this to him during an argument over her relationship with J.B. and his telling her of his intention to go out and confront J.B. in the living room.

[27] Both J.B. and B.T. maintained their relationship did not develop into a romantic intimate relationship until at least two or three months after the alleged early morning hour incident on January 30, 2021. J.B. maintained in his evidence he and B.T.’s relationship did not become “tight” until mid May, he “did not start dating her until April coming into May.” Yet J.B. testified that he and B.T. met with S.A. on March 31, 2021, and told him they were dating, which is inconsistent with his evidence in chief on this issue. J.B. was then confronted by Mr. Jacula with a Facebook posting from January 7, 2022, where he changed his relationship status to “In relationship with B.T.” and a friend asked him on Facebook, “When did this happen?” J.B. responded on his Facebook page, “About a year ago.” J.B. agreed that these Facebook posts were accurate but he did not have an explanation for why he made this response if their relationship did not commence until April 2021. In my view J.B.’s inconsistencies on this issue significantly impair and diminish his credibility. There are many examples in J.B.’s evidence of his attempting to embellish or conceal the truth to the point where it is my view his evidence was misleading and completely inaccurate and not worthy of belief. This is one of those examples.

[28] B.T. continued to deny any relationship with J.B. until two or more months after January 30, 2021, despite the implication in the two texts not contained in Exhibit 1 but recorded by P.C. Rodgers. After recording the text messages in his notes P.C. Rodgers asked B.T. if she was in an intimate relationship with J.B. and although he noted she initially was hesitant to answer she finally responded that the two were currently “seeing each other.” B.T. then advised P.C. Rodgers that “her relationship with J.B. commenced almost immediately after the alleged sexual assault.” This was completely inconsistent with her original testimony in chief. In my view this reflects detrimentally on B.T.’s credibility. B.T. in her evidence denied that J.B. was living with her in her home after S.A. moved out. In cross-examination she ultimately agreed J.B. was staying at her house five or six nights a week but continued to maintain they were not living together or in a relationship. In my view there were multiple inconsistencies between her evidence in chief and in cross-examination. This is but one example.

[29] B.T. testified in chief she called the regular police line on April 9, 2021, although when Mr. Jacula produced a transcript of a 911 call made by B.T. on that date. She then conceded she must have called 911. The transcript produced by Mr. Jacula indicated the 911 call was commenced at 4:52 p.m. There are a number of things indicated by B.T. to the 911 dispatcher that she testified were not accurate, for example, saying the reason she was only now reporting the incident was because of her husband threatening her not to go to the police or telling the operator that her husband was bitter because they were in the middle of getting separated. In her testimony she indicated these and other pieces of information she told the 911 operator were inaccurate and not true, yet these are things she told the 911 operator.

[30] Constable Travis Rodgers was dispatched to conduct an initial interview with B.T. on April 9, 2021, and he arrived at her residence at 19:32 hours. P.C. Rodgers’ Report from his interview with B.T. was marked as part of Exhibit 4 on the trial. Initially it was B.T.’s evidence that she was alone during her interview with P.C. Rodgers but she then volunteered that J.B. was actually at the house that night and came out to the garage where P.C. Rodgers was interviewing her “for a few moments.” She testified P.C. Rodgers was there for over an hour.

[31] J.B. testified that B.T. never disclosed to him what she alleged S.A. had done to her on January 30 and as a result he had no knowledge of any kind as to what happened in the bedroom. In fact he testified B.T. refused to tell him anything about what happened in the bedroom on January 30. J.B. testified he had asked her but she refused to tell him. B.T. testified she never had any conversation with J.B. about what occurred in the bedroom that night. In fact, in chief she said, “I didn’t have any conversation with him or anyone else about what actually happened, even to this day.”

[32] The difficulty with both B.T.’s and J.B.’s evidence on this issue of whether J.B. was aware of the details of B.T.’s allegations is Exhibit 4, the Agreed Statement respecting P.C. Rodgers, which indicated that although Cst. Rodgers did not note J.B. was present during his interview of B.T. in his Report, it indicated he believed J.B. was present for the entire one hour interview he conducted with B.T. This was an agreed fact between the defence and the Crown and P.C. Rodgers was not challenged on his belief. B.T. agreed that she told this officer the details of what she alleged her husband had done to her after she went to bed in the early morning hours of January 30. Initially B.T. testified J.B. was not present but changed her evidence to say he actually was there for a few moments. When J.B. was confronted by Mr. Jacula concerning his being present during B.T.’s interview with P.C. Rodgers his evidence changed and he then conceded he knew B.T. was going to call the police on April 9, so he came over to support her and was there when she made the call. He agreed P.C. Rodgers was there for about an hour but he testified P.C. Rodgers asked him to go somewhere else so he left and came back but could not recall how long. When he came back the officer was still there. I do not believe J.B.’s or B.T.’s evidence on this issue in light of the Agreed Statement of Fact for P.C. Rodgers. J.B. then volunteered that B.T. showed the officer pictures of bruises to her legs and ankles; however, on the evidence presented there were no photographs of B.T.’s legs and ankles. This is a further example of J.B. manufacturing or making up evidence to support B.T.’s allegations. No photographs were filed on this trial showing bruises of B.T.’s legs or ankles and B.T. never testified she took photographs of such bruises.

[33] Both B.T. and J.B. testified about a meeting with S.A. on March 31, 2021, when they advised him they were together, which means on April 9 when B.T. calls 911 she and J.B. were clearly involved in a romantic intimate relationship and J.B. was present throughout P.C. Rodgers’ interview as indicated in the Agreed Statement of Facts, Exhibit 4. I do not believe B.T.’s or J.B.’s evidence on this issue and it is my view this is also detrimental to their credibility.

[34] B.T. was questioned about an incident involving her son D. that was alleged to have occurred on January 31, 2021, where she pushed D. against a wall by grabbing his neck and S.A. had to remove her hand from D.’s neck. B.T. admitted to pushing D. against the wall but denied having her hand around his neck, as well she denied S.A. had to remove her hand from D.’s neck. She did not recall if D.’s head struck the wall when she pushed him.

[35] B.T. was asked by Mr. Jacula if she had had any contact with police between January 30 and April 9, 2021, when she first called 911 about her allegations towards S.A., and her initial response was “I don’t recall.” Mr. Jacula then put to B.T. that P.C. Walker had in fact called her on April 5, 2021, to speak to her about an allegation made by S.A. of her assaulting him on April 4, 2021. It was only then that B.T. recalled P.C. Walker speaking with her about an allegation of her choking and pushing S.A. on the stairs at the house, which she denied. Mr. Jacula put to her that she told P.C. Walker she did not want to speak to him and read a portion of P.C. Walker’s notes to her, which supported his suggestion. B.T. testified she did not recall this. Mr. Jacula then asked her whether P.C. Walker had asked her about an earlier allegation by her son, D., from January 31, 2021, that B.T. had grabbed him by his neck and pushed him against a wall. She did not recall if P.C. Walker had raised this with her on April 5, 2021. B.T. agreed with Mr. Jacula that when she spoke to P.C. Walker on April 5 she did not mention the sexual assault allegation against her husband. B.T. testified prior to April 5 she was aware the January 31 allegation involving D. had been reported to the Children’s Aid. She then testified she did not recall when she learned of that. She confirmed though that she was aware that both of her boys, M. and D., had been spoken to at school on April 9, 2021, by a CAS worker. She did not recall whether the CAS worker called her that same day to speak to her about the allegation. She did not recall the time frames. The fact April 9 was a Friday did not assist her with her memory. She did not recall if she called the police to make her allegation against S.A. on the same day she was called by CAS about D.

[36] It is my view this evidence establishes a motivation on B.T.’s part to fabricate her allegation of sexual assault against S.A. It was clear to me that B.T. was being deliberately evasive in her answers concerning whether prior to her contacting 911 on April 9, 2021, to complain about S.A.’s conduct towards her from January 30, 2021, she had spoken to the police about anything. She finally conceded speaking to P.C. Walker on April 5, 2021, about her husband’s allegation against her from an incident he alleged occurred on April 4, 2021. She could not recall any of the details about her conversation with P.C. Walker, either about S.A.’s allegation against her of assaulting him on April 4, 2021, or whether P.C. Walker had spoken to her about an allegation she had assaulted her son, D. In re-examination B.T. testified she could not recall whether the CAS spoke to her about her son’s allegation before or after she called the police on April 9, 2021. On B.T.’s own evidence she knew CAS had spoken to her sons on April 9, 2021, at their school, and her call to 911 was clearly made after she had this information. In my view the timing of B.T.’s complainant on April 9, 2021, was clearly in response to S.A.’s allegation and the fact she was aware her two sons had been interviewed by a CAS worker on April 9 when they were at school. I find her 911 call was made after speaking to P.C. Walker on April 5, 2021 and her learning CAS had interviewed her sons at their school. The timing of a complaint in relation to an alleged sexual assault usually has no bearing on the veracity of that complaint; however, in the case at bar, the timing, in my view, is clearly related to P.C. Walker contacting B.T. and CAS speaking to both of her sons at their school. In my view it cannot be explained by mere coincidence. This evidence in my view establishes that B.T. had a motivation to fabricate her allegation of sexual assault against S.A. Considering the totality of the evidence I have serious concerns about this, which adversely affects B.T.’s credibility and in my view raises a reasonable doubt as to whether the incident as described by B.T. occurred.

[37] Exhibit 5 is an Agreed Statement of Facts where D.A. alleges his mother grabbed him by the neck with one or two hands and pushed him against the wall because of an uncalled for comment made by him to her. Further, he indicates his father had to intervene and grab his mother by her wrist to remove her hand from his neck. S.A. testified about this incident involving his son and advised B.T. he would involve the CAS if she ever did something similar in the future. It was his evidence he reported this incident to the police and the CAS after B.T. assaulted him on April 4, 2021. B.T. had testified about a bruise on her wrist from her bracelet when S.A. was allegedly holding her on the bed by her wrists. There was some suggestion she had taken a photograph a week after January 30, which showed a bruise to her wrist. It was S.A.’s evidence that he bruised her wrist when he grabbed it to remove her hand from D.’s neck. In my view D.’s Agreed Statement of Fact provides corroboration of S.A. having to grab B.T. by her wrist to get her to let go of D.’s neck and this being the cause of B.T.’s bruise on her wrist. If it ever existed.

[38] S.A. testified on his own behalf during this trial. In my view S.A. gave his evidence in a straightforward manner. He was not evasive in his responses to questions posed by the Crown and in my view responded in a fair manner. He did not become argumentative during his questioning but was calm and collected throughout. His explanation of trying to trust his wife respecting her friendship with J.B. and his wanting to believe her when she had advised him there was nothing going on between the two of them was reasonable but he admitted in both chief and cross-examination he had concerns because of a number of events that had been occurring. J.B. described hearing B.T. and S.A. arguing in the bedroom, although he did not know what they were arguing about. S.A. agreed that he and B.T. got into a verbal argument and he described the argument being about B.T. and J.B. and the exact nature of their relationship. S.A.’s description of how the argument started and developed to the point he was insisting he was going to go out and speak to J.B. and his ultimate decision not to confront J.B. as this would create a scene and wake up his sons in my view accords with common sense looking at the totality of the circumstances presented. B.T. maintained there was no argument between she and her husband. She was the one telling him to stop and S.A. was not saying anything. In fact, at one point in her evidence she testified she told him to stop a hundred times throughout the incident, yet J.B.’s evidence was he heard her say “S. please stop” once. In my view B.T.’s statement, “S. please stop,” could equally relate to S.A. threatening to go and confront J.B., who had consumed at least 10 beers and was not in any condition to drive. S.A.’s explanation of why he decided not to speak to J.B. makes perfect sense given the time of the morning 4:30-5:00 a.m. and the fact his two boys were asleep and would be awakened by the commotion and argument that very likely would develop between S.A. and J.B. I do not agree with the Crown’s interpretation of S.A.’s explanation. I did not find S.A. to embellish his evidence or have an agenda when he testified. I find S.A. was not shaken in his evidence despite a vigorous and pointed cross-examination by the Crown.

[39] As I have indicated, there are many areas in the evidence of B.T. and J.B. that cause me to have serious concerns about their credibility and reliability, which in turn adversely impacts the veracity and trustworthiness of B.T.’s allegations and any evidence provided by J.B. to corroborate or support B.T.’s evidence. There are two significant areas of concern, the first relates to what I find was a deliberate act by B.T. in taking a screen shot of the texts between J.B. and herself from the early morning of January 30, 2021, and excluding the two texts observed and recorded by P.C. Rodgers in his interview and set out in his Report dated April 9, 2021. Both B.T. and J.B. testified there were no other texts beyond what were contained in the screen shot provided by B.T. to Detective Whelan on April 15, 2021, when she provided her video-taped interview. When confronted by these two additional texts in P.C. Rodgers’ Report J.B. testified those two texts clearly demonstrated they were flirting with each other and the feeling was mutual between them. B.T. and J.B. did not provide any explanation for why these two texts were excluded. She continued to maintain in her evidence that her relationship with J.B. did not commence for two to three months after January 30, 2021. This was not what she told P.C. Rodgers, where she admitted her relationship with J.B. commenced almost immediately after the alleged incident. J.B. was also caught out by his Facebook posting and response to a friend in January 2022 that his relationship with B.T. started about a year earlier. As I indicated I have concerns about whether there were other text messages relevant to what occurred during the early morning hours of January 30 that were also excluded by B.T. It is my view that both B.T. and J.B. were caught out in lies respecting their relationship and I find they both deliberately misled the Court on this issue.

[40] The second significant area of concern was the timing of B.T.’s complaint to the police. I find her call to 911 was directly related to her being contacted initially by P.C. Walker on April 5, 2021, concerning an allegation made by S.A. about B.T. choking and assaulting him on April 4, 2021, as well as an incident from January 31, 2021, where S.A. alleged she had choked and pushed their son, D. B.T. claimed to have no recollection of her call with P.C. Walker, including whether he spoke to her about an allegation she had on an earlier occasion assaulted her son. Yet she knew on April 9, 2021, that her two sons were interviewed by a CAS worker at their school, and she could not recall if the CAS worker called her before or after she called 911 concerning her allegation against S.A. She also admits to pushing D. against a wall during an earlier incident where she was upset but denied grabbing his throat when she did that, yet D. maintained his mother did grab him by the neck and push him against the wall and his father had to grab her and remove her hand. D.’s evidence was not challenged as it was in an Agreed Statement of Facts, Exhibit 5. It is my view these events should have been very clear in B.T.’s memory given the proximity to her making the 911 call and I find her purported lack of memory was not genuine and demonstrated her evasiveness in directly answering questions that reflected poorly on her credibility. I further find her frequent complete lack of recall of events she was personally involved in or her inability to provide simple details about those events raised significant questions respecting the reliability of her testimony. As I found J.B. was prepared to make up things he believed would support or assist B.T.’s evidence: two examples were his new recollection of B.T. saying, “Enough is enough,” or his evidence that B.T. provided photographs of bruising to her legs and ankles caused by S.A., both which I find he created “out of whole cloth”. A further serious discrepancy in the evidence of B.T. and J.B. was their assertion that B.T. never told J.B. the details of her allegation against S.A., which P.C. Rodgers’ evidence from Exhibit 4 clearly demonstrated was an outright lie. I find that J.B. making up the fact B.T. showed photographs to P.C. Rodgers of her legs and ankles (which is complete fabrication) is further proof he was aware of her allegations either from being present when she was interviewed by P.C. Rodgers or from B.T. discussing them with him as this was part of her version of events first complained of on April 9, 2021.

[41] It is my view as a result of these concerns, many of which I have set out above, their evidence is unable to satisfy me beyond a reasonable doubt of S.A.’s guilt respecting the charge of sexual assault he faces. While there is no magic incantation in the assessment process set out by Justice Cory in R. v. W. (D.), I am also of the view that S.A.’s evidence, the majority of which I accept, also leaves me with a reasonable doubt, such that I am not satisfied of his guilt beyond a reasonable doubt. Consequently, considering the whole of the evidence the Crown has failed to prove S.A.’s guilt beyond a reasonable doubt and he is therefore acquitted of the charge of sexual assault.

Released: July 14, 2022 Signed: Justice Peter C. West

Cited Cases and Legislation

[1] R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). [2] R. v. S. (W.D.), [1994] 3 S.C.R. 521. [3] R. v. W. (D.), at p. 409, per Cory J. [4] R. v. Avetsyan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J. [5] R. v. Hull, [2006] O.J. No 311 (C.A.), at para 5. [6] R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). [7] R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56. [8] R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15.