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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. E.B., 2022 ONCJ 414
DATE: 2022 09 08
COURT FILE No.: Hamilton Information No. 19-5183
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
E.B.
Before Justice J.P.P. Fiorucci
Heard on January 18, 19 and 20, 2022
Reasons for Judgment released on September 8, 2022[^1]
N. Flynn................................................................................................. counsel for the Crown
G. Read..................................................................................... counsel for the accused E.B.
FIORUCCI J.:
INTRODUCTION
[1] E.B., the accused, and K.R., the complainant, were in a relationship for approximately five years. The relationship ended on May 26, 2019, when K.R. discovered that Mr. E.B. had another girlfriend. On May 29, 2019, K.R. provided a statement to police which resulted in Mr. E.B. being charged with having sexually assaulted K.R. on two separate dates. The first sexual assault is alleged to have occurred in February of 2019 and the second on May 26, 2019, the last day that Mr. E.B. and K.R. were together.
[2] Mr. E.B. entered not guilty pleas to both sexual assault charges. The Crown’s case consisted of the testimony of K.R. and of a registered nurse who examined K.R. on May 28, 2019. The Crown also filed photographs that the nurse took of bruises that K.R. attributed to the May 26th incident. Mr. E.B. testified at the trial.
OVERVIEW
[3] Mr. E.B. and K.R. met via the internet. In July of 2014, they began a relationship. K.R. lived in Hamilton. Mr. E.B. lived in Peterborough. It was customary for Mr. E.B. to visit with K.R. and her children every other weekend. In 2019, when Mr. E.B. would visit K.R. at her apartment in Hamilton, he would sleep on a bed in the living room with her. K.R.’s children would sleep in the two bedrooms of the apartment.
[4] K.R. and Mr. E.B. agree that, on the relevant date in February of 2019, they engaged in consensual anal intercourse in the living room of K.R.’s apartment when K.R.’s children were at school. K.R. says that she revoked her consent by telling Mr. E.B. to stop, but he disregarded her withdrawal of consent and continued to anally penetrate her. Mr. E.B. testified that he stopped anally penetrating K.R. immediately when he heard her crying. He says that prior to hearing K.R. crying, there was nothing to indicate to him that she had withdrawn her consent to anal sex. The couple’s relationship continued after this incident in February of 2019.
[5] K.R. claims that during consensual vaginal intercourse at her apartment on the night of May 25th and into the early morning hours of May 26, 2019, Mr. E.B. became aggressive and pinned her down with his hands saying that he wanted to try something new. K.R. says that she did not consent to being pinned down but consented to what happened next, Mr. E.B. digitally penetrating her. However, K.R. says that she told Mr. E.B. to stop digitally penetrating her when he continued putting more fingers into her vagina and it became very uncomfortable. According to K.R., Mr. E.B. did not stop but instead laughed and then put his whole fist inside of her vagina. Mr. E.B. testified that the consensual vaginal intercourse happened on the Friday night, May 24th and that no sex happened on May 25th into the morning of May 26th. He denied the complainant’s allegations that he pinned her down, digitally penetrated her and put his whole fist into her vagina.
LEGAL PRINCIPLES
The Crown’s Burden of Proof
[6] The accused is presumed innocent, and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus.[^2] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
[7] It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
Elements of the Offence of Sexual Assault
[8] A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea.
[9] The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent.[^3] The mens rea consists of the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched".[^4]
[10] "Consent" is defined in s. 273.1(1) of the Criminal Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter",[^5] and it must be freely given.[^6] This consent must exist at the time the sexual activity in question occurs.[^7]
[11] Individuals can revoke their consent at any time during the sexual activity.[^8] Section 273.1(2)(e) of the Criminal Code states that no consent is obtained if “the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity”.
[12] In R. v. Barton, the Supreme Court of Canada explained that, for the actus reus element, the focus is on the complainant’s state of mind:
Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).[^9]
[13] In R. v. J.A., the Supreme Court of Canada held that “Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point”.[^10]
[14] In R. v. J.A., the Court addressed the mental element of the sexual assault offence in the following passage:
A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity. However, as discussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence. For instance, the accused cannot argue that he misinterpreted the complainant saying "no" as meaning "yes" (Ewanchuk, at para. 51).[^11]
[15] Recently, in R. v. H.W.,[^12] the Ontario Court of Appeal addressed the overlap between the mens rea requirement and the defence of honest but mistaken belief in communicated consent. The Court said this about the mens rea stage of the analysis:
The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus then shifts to the accused's mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, that lack of consent: Barton, at para. 87.[^13]
[16] In R. v. H.W., the Court said the following with respect to the defence of honest but mistaken belief in communicated consent, and the limits placed on the defence, including the limits in s. 273.2 of the Criminal Code:
48 The defence requires that the accused had "an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct": Barton, at para. 91 (emphasis in original). From a practical standpoint, the principal relevant considerations are the complainant's behaviour which is said to have involved communication and the "admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent": R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at para. 44 (emphasis in original); Barton, at para. 91.
49 The defence is limited both by the common law and by provisions of the Code that tightly restrict "the range of mistaken beliefs an accused may lawfully hold about the complainant's consent": G.F., at para. 1; J.A., at para. 24. As a result, "[n]ot all beliefs upon which an accused might rely will exculpate him": Ewanchuk, at para. 50.
50 For example, mistakes as to what amounts in law to consent - for example, a mistaken belief that "no", or silence, or lack of resistance, meant "yes" - do not engage the defence: Barton, at paras. 98-100.
51 Moreover, s. 273.2 of the Code imposes additional restrictions on the applicability of the defence. It provides that a belief in consent that arose in certain ways will be unavailing. It imposes a precondition of reasonable steps to ascertain consent - "no reasonable steps, no defence": Barton, at para. 104. And it requires evidence of words or conduct by which the complainant expressed consent. Section 273.2 provides:
It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from
(i) the accused's self-induced intoxication,
(ii) the accused's recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
52 An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to it. If there is no air of reality to the defence, it is not left with the jury. If there is, the onus is on the Crown to negative the defence. If the Crown fails to do so, the accused is entitled to an acquittal. The Crown might disprove the defence by, for example, proving beyond a reasonable doubt that the accused did not take reasonable steps to determine whether the complainant was consenting or that the accused's mistaken belief was not honestly held: Barton, at paras. 121-23.[^14]
[17] In R. v. H.W., the Ontario Court of Appeal pointed out the extensive overlap between the mens rea requirement and the defence of honest but mistaken belief in communicated consent, since both address the accused’s perception of consent “against the backdrop of no such consent actually having been given by the complainant”.[^15] The Court rejected the Crown’s argument that, where the defence of honest but mistaken belief in communicated consent was not available to the accused, the accused could not have a non-culpable mental state and the mens rea element should be treated as satisfied. Zarnett J.A., writing for the Court, stated:
In my view, the lack of perfect symmetry, even at a theoretical level, underscores that as a legal matter, the knowledge element is part of the mens rea and thus the Crown's burden, independently of whether the defence of honest but mistaken belief in communicated consent is available to the accused.[^16]
[18] In R. v. H.W., on the evidence, the parties agreed that if the jury was satisfied that the complainant had not consented to the sexual activity, there was no air of reality to a defence of honest but mistaken belief in communicated consent. The Ontario Court of Appeal found that the trial judge did not err by instructing the jury that the Crown had the burden of proving the knowledge element. However, “having decided to instruct the jury as to the Crown's burden on the knowledge element, the trial judge was required to ensure that the jury considered only evidence that was relevant to that issue, in a way that inoculated them from legal error”.[^17] Therefore, since the defence of honest mistake was not available, the trial judge had “to ensure that any evidence of [H.W.’s] mistaken belief in consent was removed from the factual mix the jury considered on this issue, so as not to allow an unavailable defence in through the back door”.[^18] Zarnett J.A. stated:
Jury instructions in a case where there is no air of reality to the defence of honest but mistaken belief in communicated consent must be equally clear, but in such a case, the clarity required is that evidence of the accused's mistaken belief in consent is not to be considered at all when the jury determines whether the accused had the necessary mens rea. The provisions of the Code that limit the defence of honest but mistaken belief in communicated consent do not cease to apply to an assertion of a mistaken belief in consent that does not meet the requirements of the defence. The Code is clear. Any belief that does not meet the requirements of s. 273.2 of the Code is not a defence - it is not exculpatory.[^19]
[19] In R. v. H.W., the trial judge erred by instructing the jury to consider all the evidence on the question of whether the knowledge element was proven, including “references to [H.W.’s] evidence that he interpreted the complainant looking and smiling at him, and standing and turning around, as her invitation to him to engage in vaginal intercourse with her, causing him to have no doubt that this was what she wanted, and to infer that she was consenting”.[^20] The error the trial judge made was to invite the jury “to consider evidence of a mistaken belief in consent which the parties agreed would not have exculpatory effect because there was no air of reality to the defence of honest but mistaken belief in communicated consent that could be based on that evidence”.[^21]
Timing of the Complaint and Motive to Fabricate
[20] A sexual assault complainant’s failure to come forward at the time of the events must not be the subject of any presumptive adverse inference.[^22] In assessing the credibility of a complainant, “the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case”.[^23] Standing alone, a delay in disclosure will never give rise to an adverse inference against the credibility of a complainant.[^24] The existence of a potential motive to lie is a relevant consideration in the assessment of credibility.[^25]
[21] In a case where the accused’s theory is that the complainant fabricated her allegations due to a precipitating event, the trier of fact is entitled to consider the delay in disclosure in assessing the complainant’s credibility but must do so “with caution and avoid falling into the trap of stereotypical thinking”.[^26]
The W.D. Framework:
[22] In this case, Mr. E.B. testified. He provided evidence that was exculpatory. I am required to consider and apply the framework enunciated in R. v. W.(D.),[^27] which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused’s evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused’s evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
[23] I can accept all, some or none of a witness’s evidence.[^28] A criminal trial is not an inquiry into what happened or whose case is stronger, and it is not a “credibility contest”.[^29] I must determine whether the Crown has proven the specific criminal allegations it has made beyond a reasonable doubt.
[24] The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation.[^30]
ANALYSIS
The Timing of K.R.’s Complaints and Issues Regarding her Credibility
[25] Mr. E.B. visited with K.R. and her children on the last weekend in May of 2019. On the evening of Saturday May 25th K.R. and her children had a birthday celebration for Mr. E.B.. On the morning of May 26th, Mr. E.B. was getting ready to return to Peterborough. He left his cell phone in the living room of K.R.’s apartment when he went to the washroom. K.R. saw a text message come in on Mr. E.B.’s phone. She did not recognize the sender of the text but understood it to be another woman. This led to what K.R. described as a “heated discussion”. K.R. admitted that she was very angry and was yelling. K.R. told Mr. E.B. to pack his things and “get the fuck out”.
[26] On Monday, May 27th, K.R. went to see her doctor. According to K.R., she went to her doctor to seek medical attention for the soreness to her vagina and to be tested for sexually transmitted infections, since she had learned that Mr. E.B. had been sleeping with someone else.
[27] On Tuesday, May 28th, K.R. attended McMaster Hospital to have an internal examination done. Laura Smith, a registered nurse at the Sexual Assault/Domestic Violence Centre at the hospital conducted the examination. On May 28th, K.R. called the police to make a report and on May 29th, she provided a statement to the police detailing her allegations regarding the February 2019 and May 26, 2019 incidents.
[28] At trial, K.R. was not asked why she did not report the February 2019 incident earlier. K.R. testified that Mr. E.B. said he was sorry for hurting her during the anal sex, and she “just let it go at that point”.
[29] K.R.’s delay in reporting the February 2019 incident is only one circumstance to be considered in the factual mosaic of the case and in the assessment of K.R.’s credibility. In this case, Mr. E.B. asserts that K.R. fabricated her complaints regarding both incidents because she felt betrayed when she discovered that he had another girlfriend.
[30] Both counsel asked K.R. about communication she had with Mr. E.B. after he left her apartment on May 26, 2019, and Defence counsel asked her about a threat Mr. E.B. says she made to him to ruin his life. I find that K.R.’s responses to these questions were evasive, inconsistent and less than forthright, which has led me to approach her allegations of sexual assault with caution.
[31] In examination-in-chief, K.R. acknowledged that she communicated with Mr. E.B. via text messages and phone calls after he left her apartment on May 26th. When Crown counsel asked K.R. what she said to Mr. E.B. in the phone calls, she replied, “I don’t remember”. When Crown counsel asked K.R. whether she had ever discussed with Mr. E.B. what had happened between them, she again replied, “I don’t remember. I -sorry”.
[32] During cross-examination, K.R. admitted that she was very angry on the morning of May 26th because she had just learned that Mr. E.B. had another girlfriend. She acknowledged that she had communicated with Mr. E.B. on May 26th and possibly on May 27th. When Defence counsel first asked K.R. whether, when she called Mr. E.B. on May 26th and 27th, she was expressing her anger at Mr. E.B. for having another girlfriend, K.R. replied: “I couldn’t tell you what I said. I don’t recall”. I find that K.R.’s initial responses to questions about the content of her communications with Mr. E.B. were evasive and less than forthright. She initially took the position that she could not recall whether she was expressing anger at Mr. E.B. for having another girlfriend.
[33] However, when pressed by Defence counsel, K.R.’s evidence changed, and she accepted the possibility that she was making the phone calls to confront Mr. E.B. about the other woman:
Q. Can you recall the reason for making the phone calls was because you were basically – you wanted to confront him about his having another girlfriend? Or even if you don’t know the words….
A. That could have been….
Q. Sorry?
A. That could have been part of it.
[34] Later in the cross-examination, K.R. finally conceded that she was confronting Mr. E.B. about having another girlfriend because she was angry:
Q. But you do agree that no report was made to the police until the morning of the 28th, right?
A. You’re right.
Q. And in the meantime you had been confronting J.[^31] about his having another girlfriend, correct?
A. Yes.
Q. And that was because you were angry at him for that, right?
A. Yes.
[35] K.R.’s initial reluctance to acknowledge that she was confronting Mr. E.B. about the other woman in their communications on May 26th and 27th is concerning. She continued to be evasive when Defence counsel asked her about the threat to ruin Mr. E.B.’s life.
[36] Mr. E.B. claims that, during his communications with K.R. after he left her apartment on May 26th, K.R. threatened to ruin his life and told him that he would never see his children again. Crown counsel made much of the fact that Mr. E.B. testified that these threats were made by text message but when confronted with extractions from his phone, there were no text messages which contained the threats. However, Mr. E.B. pointed to other text messages which alluded to his claim that K.R. had made the threats in a phone call. Mr. E.B. said that he was mistaken when he testified that the threats were made by text message as opposed to on the phone. I accept his evidence on this point.
[37] The following exchange occurred between Defence counsel and K.R. on the issue of whether she threatened to ruin Mr. E.B.’s life:
Q. Did you….
A. The 28th I met with the police.
Q. Yes, I know, but we’ll get to that. Did you threaten to ruin his life?
A. I don’t know. I don’t know what I said to him.
[38] K.R.’s response to Defence counsel’s inquiry on this point provides me with an additional basis to approach the remainder of her evidence with caution. If K.R. did in fact make the threat, I find it implausible that she would not know or recall that she made it. If she did not make the threat, I would expect that she would have unequivocally denied making it in no uncertain terms when questioned by Defence counsel. I find that K.R. was being less than forthright in her response to Defence counsel on this issue. I accept Mr. E.B.’s testimony that the threat was made, which provides some support for the Defence theory that K.R. was motivated to fabricate the sexual assault allegations against him because of the animus created by K.R.’s discovery of the other relationship.
[39] In the following exchanges, Defence counsel put to K.R. the suggestion that Mr. E.B. stopped responding to her texts and calls and that this was an additional and related motivation for K.R.’s decision to call police when she did:
Q. And was there a point, at least by the 28th, that he would not answer any of your texts or telephone calls any longer?
A. I had blocked all numbers and communication, so I wouldn’t have known.
Q. Okay, because my – so, let me get it right; you were initiating texts and phone calls to him.
A. And he responded back for the first day.
Q. And maybe even the next day?
A. I don’t know. I couldn’t honestly tell you. I don’t remember when the communication stopped totally.
Q. Did you….
A. The 28th I met with the police.
Q. And I suggested to you that he was the one who stopped those communications from you, although I think you said you blocked him, right?
A. I blocked him everywhere, yes.
Q. All right. I want to suggest to you that the reason you went to the police to make the report on the 28th is only because he wasn’t giving you the satisfaction of an admission of being, say, morally wrong for having had another girlfriend, being involved with another girlfriend while he was apparently still involved with you. I’m going to suggest that; what do you say?
A. I don’t believe so.
[40] K.R.’s response, “I don’t believe so” is less than unequivocal, notwithstanding her subsequent denial of Defence counsel’s suggestion that her criminal complaints were false and motivated by her anger and betrayal over Mr. E.B. having another girlfriend.
[41] Therefore, on the issue of her communications with Mr. E.B. after he had left her apartment on May 26th, K.R.’s evidence evolved from not remembering what she said to him, to acceptance of the possibility that she might have called him to confront him about the new girlfriend, to admitting that she was confronting him about it. Furthermore, as stated, I found K.R.’s response to the claim that she threatened to ruin Mr. E.B.’s life less than forthright. Again, these frailties in K.R.’s testimony have led me to approach her allegations of sexual assault with caution.
Findings Regarding Mr. E.B.’s Testimony:
[42] Crown counsel argued that I should reject Mr. E.B.’s evidence due to various inconsistencies that arose in cross-examination. I find that none of these inconsistencies were on material points and that the cumulative effect of the inconsistencies did not lead me to have concerns about the credibility or reliability of Mr. E.B.’s evidence on material issues related to the sexual assault allegations.
[43] For instance, in examination-in-chief, Mr. E.B. testified that he arrived in Hamilton on Friday May 24th. Crown counsel confronted Mr. E.B. with a Presto Pass transportation record showing that, in fact, Mr. E.B. arrived in Hamilton on Thursday May 23rd. This is not a material inconsistency. I note that K.R. also testified that she believed Mr. E.B. arrived on the Friday and left on the Sunday. This did not affect K.R.’s testimonial credibility and does not affect Mr. E.B.’s.
[44] During cross-examination, Mr. E.B. stated that he could not recall taking the bus on May 25th. Crown counsel directed Mr. E.B. to the Presto Pass records which showed a fare on the Hamilton Street Railway bus at 8:18 p.m.. Again, this is an insignificant detail that is in no way related to the material aspects of the allegations, and something about which a credible witness could be mistaken.
[45] Crown counsel pointed out that Mr. E.B. did not recount in his examination-in-chief that K.R. received a phone call from Mr. E.B.’s mother on the morning of Sunday May 26th yet, during cross-examination, he admitted that this call did in fact happen. Again, Mr. E.B.’s failure to mention the call from his mother to K.R. in-chief was not a material omission or inconsistency in his evidence. It was an insignificant detail in the context of what occurred that morning, which was the discovery by K.R. of the text message from another woman, resulting in a heated discussion and K.R. kicking Mr. E.B. out of her apartment.
[46] I find that Mr. E.B. gave his evidence in a forthright manner. There was nothing in the substance of his evidence or the way he testified that caused me to disbelieve his evidence.
February 2019 Allegation of Sexual Assault
[47] K.R. testified that the February 2019 incident occurred on the bed in the living room of her apartment. Mr. E.B. had arrived at her apartment early that day which allowed them to have some alone time, since K.R.’s children were at school.
[48] K.R. stated that the physical contact between her and Mr. E.B. “started with just kissing and cuddling and then one thing led to another”. When Crown counsel asked K.R. to explain what that meant, K.R. said, “the clothes were taken off and we began to have sex”.
[49] K.R. and Mr. E.B. both testified that the sex included anal sex, which began consensually. However, neither Mr. E.B. nor K.R. gave evidence about how K.R. communicated her consent to the anal intercourse.
[50] K.R. and Mr. E.B. gave divergent accounts of what happened during the consensual anal intercourse and how it ended, although there is some overlap in their respective descriptions of the event.
[51] K.R. initially described the incident to Crown counsel as follows:
Q. I’d like to direct your mind back to February, the month of February 2019.
A. Mm-hmm.
Q. Did anything happen during that month between you and Mr. E.B. that brings you to court?
A. The one time we were in bed about to have intercourse, he had done something and I had asked him to stop and he wouldn’t. The only reason why he did was because I managed to manoeuvre myself into a position that he had no choice.
[52] In the following exchange with Crown counsel, K.R. explained how she told Mr. E.B. to stop anally penetrating her and how the anal penetration ended:
Q. Okay. All right. And as this sexual contact commenced, were you – where were you and where was Mr. E.B.?
A. On my bed. I was with – what I had asked him to stop from was I was on my stomach.
Q. Okay.
A. And he would have been above me.
Q. Okay.
A. And on top.
Q. All right. And can you describe for me what it was that you asked him to stop doing?
A. He had put himself in my anus and was rather forceful with that. And when I said it was hurting, he wouldn’t stop.
Q. And did you want him to stop?
A. Yes.
Q. Did you communicate that lack of consent?
A. I told it was hurting and wanted him to stop, yes.
Q. And with what tone of voice did you use to tell him to stop?
A. By that point I was crying.
…… Q. So, how did that affect your tone of voice?
A. It was muffled.
Q. And when you say ‘crying,’ what physically were you doing?
A. I was shaking on my stomach and crying.
Q. When you told him that it was hurting and to stop, what reaction or what did Mr. E.B. say or do, if anything?
A. He didn’t react, he just continued doing what he was doing.
Q. And how far – in terms of his positioning, would he have been in a position to hear your words?
A. Yes, he would have.
Q. And physically, did you do any – what did you do?
A. I squirmed enough that I was able to turn on my side.
Q. And what did Mr. E.B. say or do when you did that?
A. He ended up just laying down.
Q. Now, when you described him entering your anus, with what part of – what did he enter your anus?
A. With his penis.
Q. And was any condom used?
A. No.
Q. Was there any ejaculation by Mr. E.B.?
A. At that day, no.
Q. And how did you feel as a result of what had happened?
A. I was upset.
Q. How did this incident end?
A. When I squirmed and he laid down. That was it.
[53] K.R. said that after this incident she laid on her side on the bed crying, with Mr. E.B. “cuddled up right behind” her. K.R. testified that Mr. E.B. said he was sorry for hurting her and she “just let it go at that point”.
[54] In cross-examination, K.R. reiterated that she told Mr. E.B. to stop the anal intercourse because it was painful and that he would not stop. According to K.R., the anal sex ended when she changed her body position.
[55] Defence counsel asked K.R. how long the consensual anal intercourse lasted and for how long Mr. E.B. continued to anally penetrate her after she told him to stop:
Q. Just so I’m clear, if we could get a bit of information. The anal intercourse that you described as being painful and then expressing pain and wanting it to stop, how long did it occur for before you said, “It’s painful,” or, “Stop,” or both things?
A. Not even a minute.
Q. Okay. And how long do you say it continued after you expressed in a way that he could at least hear that it was painful and to stop, how long after?
A. A couple of minutes.
[56] Defence counsel asked K.R. questions about her revocation of consent to the anal sex in the following exchange:
Q. I think you said that when you told him to stop, you used a voice that was muffled, a muffled voice, am I correct?
A. I was crying, yes.
Q. You were crying and you actually used the words, if I’m not mistaken, that you….
A. Yes, I was – I was face-down on my bed, so, yes.
Q. A muffled voice. So, I presume your face might have been in a pillow or something?
A. No, it was turned to the side.
Q. Mm-hmm. Is it conceivable that because you had a muffled voice with your face turned away that he might not have been able to hear you?
A. I don’t know.
Q. Okay. Well, it came to an end, and do I understand that when it came to an end – did he apologize for having caused discomfort?
A. Yes, he did.
[57] Mr. E.B. testified that he stopped anally penetrating K.R. as soon as he realized she was crying. Mr. E.B. set out his version of what occurred during the February 2019 incident in the following exchange with Defence counsel:
Q. Okay. Tell us about what happened.
A. So, we decided to engage in anal intercourse. I was on top of her. When I entered her, it was fairly forceful. And at that point she wasn’t making any movements or noises, so….
Q. Sorry?
A. No, she wasn’t making any kind of gestures or anything, so I was unaware of anything that she may have been feeling discomfort. And then when I realized that she was having discomfort, I stopped immediately and apologized to her for what had happened.
Q. Okay. So, tell us about when you realized that she had experienced or was experiencing discomfort? How did you realize that? What things were occurring that were happening or being said or both that you could learn this, and tell us about that.
A. Well, she was pretty much face-down, so she was very muffled, and then when she turned her head sideways and I could hear that she had been crying, I stopped.
Q. She had what?
A. She turned her head sideways, so I stopped because she was crying.
Q. Okay. And when you say you stopped, exactly what did you do?
A. I moved away from her, she had ended up laying on her side, I laid behind her and comforted her because of the pain that she was in.
Q. All right. And her evidence, and again just over-simplify it, but I want to put it to you so I get your answer, her evidence was that although she told you to stop and so forth, that you in spite of that persisted until you were ready to stop. What do you say about that?
A. That is incorrect. I stopped as soon as I realized that she was in pain and discomfort.
Q. All right. And you tried to comfort her. She had testified that you had apologized, is that accurate?
A. Yes, that is accurate.
Q. Okay. And why did you apologize?
A. Because I felt bad that she was hurt by it.
Q. Had you intended to cause her pain or discomfort or hurt?
A. No, I did not intend to hurt her in any way.
Q. And to be perfectly clear, did you intend to continue after you realized that she did not want to continue?
A. No, I didn’t. I did not.
Q. And to be perfectly clear, did you continue after you realized that she did not want to continue?
A. No, I did not.
[58] Crown counsel asked Mr. E.B. why he entered K.R.’s anus forcefully. He replied that “it was not meant to be forceful, as I was entering I was – had more pressure than I assumed I had”. The following exchange then occurred between Crown counsel and Mr. E.B.:
Q. And you don’t dispute that your actions hurt her, you heard her crying, right?
A. Correct.
Q. Right. And you acknowledge that she had her head turned, you were in a position to hear her crying and any noises that she made, right?
A. At that point I was not.
…… Q. You acknowledge that she had her head turned while she was – her body was faced down on the bed, right?
A. Eventually her head was turned, yes.
Q. Yes. And you don’t dispute that you were over top of her and behind her as you entered her anus, correct?
A. In the position we were in, yes.
….Q. Okay. And the way that the anal sex ended was that she changed her body position and went on her side, correct?
A. No, that is not correct.
Q. She ended the sex by squirming out from you, correct?
A. No, that’s not correct.
Q. Your evidence is that you could hear her crying, right?
A. Yes.
Q. While your penis was in her anus, correct?
A. And I stopped.
Q. You were able to hear her crying from that position, right?
A. Yes.
Q. Right. And you would be equally able to hear any noises she made from that position, right?
A. Yes.
Q. Right. And she told you to stop because it was hurting, correct?
A. I did not hear that at the time.
Q. Okay. So, your – is it your evidence you just pulled out because you heard her crying or did you hear her say, “Stop,” and then immediately pull out after she said, “Stop?”
A. When she turned her head and I heard her crying, I pulled out.
Q. Okay. So, did you ask her, ‘Why are you crying?’ ‘Are you okay?’ You didn’t say anything like that?
A. When I pulled out, as I said, I confronted – I comforted her and asked her if she was okay and apologized.
Q. And you apologized because you knew that your actions were hurting her, right?
A. I apologized because I felt bad for what had happened.
[59] According to Mr. E.B. the anal sex did not end by K.R. changing her body position but rather by him consciously stopping. He agreed with Crown counsel’s suggestion that the consensual anal sex became non-consensual:
Q. Either way, you agree with me that what started out as consensual anal sex, you agree with that, right?
A. Yes.
Q. Turned into a no consent by [K.] because she was in pain, right?
A. And when it became non-consensual, I pulled out. Immediately.
[60] The parties agree that the anal sex began consensually. K.R.’s initial consent, however it was expressed, was linked to the sexual activity in question, anal sex.
[61] Section 273.1(2)(e) of the Criminal Code provides that no consent is obtained where “the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity”. As Martin J.A. of the Alberta Court of Appeal stated in R. v. A.E.: “‘Stop’ means stop immediately, as do expressions of pain and unwillingness to continue”.[^32]
[62] However, the Supreme Court of Canada has stated that, “the only question for the actus reus is whether the complainant was subjectively consenting in her mind” and that, “[t]he complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established”.[^33]
[63] It is clear on the evidence of both K.R. and Mr. E.B. that, at some point, K.R. withdrew her consent to the anal sex because it was painful. However, on the evidence presented in this case, and based on my findings of fact which I will detail below, it is difficult to decipher precisely when it was that K.R. withdrew her consent to anal sex. That is, it is difficult to determine the exact point at which K.R. in her mind wanted the anal sex to stop. During her cross-examination, K.R. stated that the consensual anal intercourse lasted “not even a minute”.
[64] Although the complainant is not required to express her revocation of consent for the actus reus to be established, the complainant’s communication of her revocation of consent is relevant to the mens rea element of the sexual assault offence.[^34]
[65] K.R. testified that she told Mr. E.B. that the anal sex was hurting and that she wanted him to stop, in a muffled voice as she was crying and shaking on her stomach. According to K.R., the anal sex continued for “a couple of minutes” after she expressed to Mr. E.B., in a way that he could hear, that she wanted him to stop and that it was painful. In cross-examination, K.R. answered, “I don’t know” when Defence counsel asked if Mr. E.B. might not have been able to hear her because she had a muffled voice with her face turned away.
[66] Mr. E.B. testified that he was on top of K.R. and “when I entered her, it was fairly forceful”. He went on to say that, at that point, K.R. wasn’t making any movements or noises or “any kind of gestures or anything” that would indicate to him that she was feeling discomfort. Mr. E.B. described how K.R. was face-down, and very muffled, but when she turned her head sideways, he could hear that she had been crying. According to Mr. E.B., when he heard K.R. crying, he stopped anally penetrating her immediately because he realized it was causing her discomfort. Mr. E.B. was not asked how long the anal sex lasted before he noticed that K.R. was crying and, therefore, stopped.
[67] Crown counsel submits that, when Mr. E.B. entered K.R. “fairly forceful”, it was incumbent on him to take reasonable steps to ascertain whether K.R. was continuing to consent. I have considered Crown counsel’s submissions regarding Mr. E.B.’s evidence that when he entered K.R. “it was fairly forceful” and his statement: “it was not meant to be forceful, as I was entering I was – had more pressure than I assumed I had”.
[68] On the totality of the evidence, I cannot find that the point at which Mr. E.B. says he entered K.R. “fairly forceful” was when he first penetrated her anally. If it was, on K.R.’s own evidence, she continued to consent to the anal sex, even if her consent lasted for “not even a minute”. In this circumstance, the actus reus of the offence would not be made out at the point of Mr. E.B.’s “fairly forceful” anal penetration of K.R..
[69] If Mr. E.B.’s “fairly forceful” entry of K.R. occurred at some point after his initial penetration of K.R., on the evidence, it is impossible to determine when that was and, again, whether it resulted in K.R. wanting the anal sex to stop.
[70] The only finding I can make in relation to the actus reus of the offence is that, at some point during the consensual anal sex, it was painful for K.R., and she subjectively wanted the anal sex to stop. It was at that point that the actus reus of the offence crystalized. It did not require K.R. to express her revocation of consent. To be clear, I accept K.R.’s testimony that, although the anal sex started consensually, at some point, she wanted Mr. E.B. to stop. I cannot make a finding of fact as to when that occurred relative to the point in time at which Mr. E.B. believed he entered K.R. “fairly forceful”.
[71] The central issue in this case is whether the Crown has established the mens rea element of the offence. Although the complainant is not required to express her revocation of consent for the actus reus to be established, if a particular sexual act commences with the consent of the complainant and the same sexual act continues without the complainant, who is conscious throughout the sex act, expressly telling the accused to stop, or there being any “expressions of pain and unwillingness to continue”, the accused may not know that the complainant wants the act to stop or that she has withdrawn her consent.
[72] K.R. and Mr. E.B. gave divergent accounts of how the consensual anal sex progressed and how it ended. I have outlined above my credibility concerns regarding K.R., which cause me to approach her testimony pertaining to the alleged sexual assaults with caution. K.R. is a complainant who delayed reporting the February 2019 incident until May 2019, after she discovered that Mr. E.B. had another girlfriend, which angered her and caused her to threaten to ruin Mr. E.B.’s life.
[73] The delay in reporting coupled with the potential motive to fabricate false allegations and my finding that K.R. was evasive and less than forthright in portions of her evidence, lead me to find that I cannot rely entirely on K.R.’s account of the February 2019 incident. I reject K.R.’s testimony that the anal sex continued for “a couple of minutes” after Mr. E.B. would have heard her ask him to stop and that the anal sex only stopped because she was able to change her body position and squirm away. K.R.’s portrayal of the incident as one in which Mr. E.B. persisted with the anal sex for a couple of minutes notwithstanding her clear indication to him that it was painful and that she wanted him to stop is difficult to reconcile with K.R.’s testimony that Mr. E.B. said he was sorry for hurting her.
[74] I find that there is an air of reality to the defence of honest but mistaken belief in communicated consent. Although there was no evidence led on the trial regarding how K.R. communicated her consent to participate in anal sex, there is no dispute that she did consent, and that Mr. E.B. acted on that consent by anally penetrating her. The character of the sex act never changed from anal sex to some other sex act.
[75] I have considered the provisions of s. 273.2 of the Criminal Code which define “a variety of circumstances that will negate the assertion of an honestly held but mistaken belief in consent”.[^35] Again, this has required me to consider Mr. E.B.’s testimony that when he entered K.R., “it was fairly forceful”. I note again that I am unable to place along the continuum of the consensual anal sex the point at which Mr. E.B. says he entered K.R. “fairly forceful”.
[76] I recognize that there will be no air of reality to the defence of honest but mistaken belief in communicated consent where the evidence shows that the accused was reckless or wilfully blind as to whether the complainant consented, or in this case, as to whether the complainant was continuing to consent.[^36] There will also be no air of reality to a claim that the accused honestly but mistakenly believed that the complainant was continuing to consent where the accused does not take reasonable steps in the circumstances known to him at the time to find out if the complainant was withdrawing her consent.[^37]
[77] The circumstances that were known to Mr. E.B. at the time were that K.R. consented to participating in anal sex. I accept Mr. E.B.’s evidence that he did not intend to hurt K.R. when he anally penetrated her. I also accept Mr. E.B.’s evidence that after he entered K.R. “fairly forceful”, K.R. wasn’t making any movements or noises or any kind of gestures or anything that would make him believe that she was feeling discomfort. I take from this that nothing he heard or observed at that time caused Mr. E.B. to believe that K.R. was withdrawing her consent to the anal sex.
[78] Mr. E.B.’s use of the words “fairly forceful” in his testimony does not lead me to find that he realized the risk that K.R. may no longer be consenting but persisted in his conduct despite the risk. To the contrary, his evidence, which I accept, establishes that, based on what he heard and observed at the time, he did not perceive a risk that K.R. was not consenting.
[79] The act of anal sex, by its very nature, entails the application of force with the penis in the anus. Mr. E.B.’s testimony leads me to conclude that, until the complainant turned her head sideways and he could hear her crying, there was nothing that made him believe that there was a risk that K.R. wanted the anal sex to stop, or in other words, that she wanted him to stop applying the force she had agreed for him to apply. I find that nothing known to Mr. E.B. at the time made him suspect that he needed to inquire whether she was continuing to consent. Furthermore, I find that a reasonable person, aware of the circumstances known to Mr. E.B., would not have taken further steps before continuing with the sexual activity.
[80] I pause here to note that the application of the legal test for the defence of honest but mistaken belief in communicated consent to the evidence in this case has led me to attempt to parse out with precision each of the steps along the continuum of the anal sex to determine if there was a point in time when Mr. E.B. was reckless or wilfully blind or should have taken reasonable steps to ascertain whether K.R. was withdrawing her consent.
[81] However, this was likely a very brief interaction between Mr. E.B. and K.R. I have accepted Mr. E.B.’s evidence regarding K.R.’s behaviour after he anally penetrated her. In essence, Mr. E.B. heard or saw nothing which would indicate to him that K.R.’s consent was withdrawn until K.R. turned her head and he observed her to be crying. Up until that point, Mr. E.B. honestly believed that the consent which K.R. had communicated to him was continuing. When he noticed K.R. crying, which he took as an expression of pain and unwillingness to continue, Mr. E.B. immediately stopped the anal penetration and apologized for having hurt K.R.. The Crown has failed to prove the mens rea element of the offence in relation to the February 2019 incident of anal sex.
May 2019 Allegation of Sexual Assault
[82] K.R. testified that, in the early morning hours of May 26, 2019, during consensual vaginal intercourse, Mr. E.B.’s mood changed. According to K.R., Mr. E.B. became very aggressive and pinned her down with one hand on her left arm and his other hand on her right breast. K.R. said that she did not consent to being pinned down and when she asked Mr. E.B. why he was pinning her down, he said he wanted to try something new. When K.R. asked him what that was, Mr. E.B. did not say anything, but started putting his fingers inside her vagina which “didn’t bother” K.R..
[83] K.R. described what happened next as follows:
Q. Okay. What happens next?
A. He continues putting more and more fingers inside of me. It becomes very uncomfortable. I did ask him to stop.
Q. And how did you do that?
A. By telling him it hurt and to stop.
Q. And what tone of voice did you use?
A. I was not happy, so very tense.
Q. Was he able to hear you tell him that it hurt and to stop?
A. Yes.
Q. And what did he say or what – how did he react to that?
A. He laughed and then proceeded to put his whole fist inside of me.
Q. And when you say ‘inside of me,’ where inside of you?
A. In my vagina.
[84] K.R. testified that she felt excruciating pain in her vagina and “shot up and managed to get over onto [her] side as quickly as possible”, which resulted in Mr. E.B.’s fist coming out of her vagina. Mr. E.B. then curled up on his side of the bed like nothing had happened. K.R. claimed that she was terrified because she didn’t think Mr. E.B. would ever hurt her. Mr. E.B. and K.R. stayed in the same bed until the morning.
[85] That morning K.R. discovered the text message from Mr. E.B.’s new girlfriend and kicked him out of her apartment after a “heated discussion” during which she was very angry and yelling. According to K.R., after Mr. E.B. left her apartment, she smashed a bottle of his cologne and then laid on her bed and sobbed.
[86] Defence counsel cross-examined K.R. about the cause of her emotional condition after Mr. E.B. left her apartment on May 26th:
Q. So, if I suggested that he had left his medicine and that wallet behind, what would be your evidence?
A. Not that I’m aware of. The only thing that I knew was left, and I smashed it, was cologne.
Q. The cologne, right. And that’s because of your anger at his having another girlfriend?
A. It was my anger from the whole weekend but, yes, that helped, too.
Q. Well, yeah, but the thing that really made you very angry that morning and made you lose your temper and get angry at him was because you had discovered that he had another girlfriend.
A. Yes.
[87] K.R. saw her doctor on Monday May 27th. According to K.R., she saw her doctor to have testing done for sexually transmitted infections, and because of the pain in her vagina. K.R. said that she couldn’t sit because of the pain and had to lie on her side. She could not lie on her stomach or on her back. K.R. claimed that the pain in her vagina lasted just over a week and when she would go to the bathroom and wipe, there was some bleeding. This bleeding lasted four or five days. She was not menstruating at the time.
[88] The Crown says that K.R.’s allegations regarding the May 2019 incident are corroborated by the evidence of Laura Smith, a registered nurse who examined K.R. on May 28th. Ms. Smith photographed two bruises which K.R. attributed to being pinned down by Mr. E.B., one on her left upper forearm and one on her right breast. Photographs of the bruises were made exhibits at the trial. Ms. Smith also testified that she conducted a speculum exam on K.R. and saw “a small amount of dark red blood” at the base of K.R.’s cervix.
[89] When Crown counsel asked Ms. Smith to describe what she meant by a small amount of blood, Ms. Smith said: “[i]t was a small amount, so I did not note that there was blood all inside of her vaginal opening. I just noticed it towards the base of her cervix”. The following exchange occurred between Crown counsel and Ms. Smith:
Q. Were you able to ascertain where that blood was coming from or any injuries it was associated with?
A. No, I didn’t.
[90] Ms. Smith went on to say, “I didn’t notice any bleeding exterior as well” and, “[s]o, it wasn’t like it was coming out of her body when I assessed her”. For the reasons I outlined above, K.R. was a witness who I found to lack credibility, and who had a motive to fabricate false allegations. The small amount of blood Ms. Smith observed at the base of K.R.’s cervix is of negligible corroborative quality. K.R. claimed that Mr. E.B. put his entire fist into her vagina causing excruciating pain. Ms. Smith did not testify that she observed injuries or trauma to K.R.’s vagina and could not associate the blood to any such injury. No expert evidence was tendered to relate the blood Ms. Smith observed to trauma, or a tear or a direct injury to the vagina. I also reject K.R.’s evidence that Mr. E.B. caused the two small bruises depicted in the photographs filed.
[91] Mr. E.B. denied the May 26th incident in its entirety. In fact, he testified that on that weekend in May, the couple only had consensual vaginal intercourse on Friday May 24th and that nothing sexual happened between them on Saturday May 25th into the early morning hours of Sunday May 26th. Mr. E.B. denied that he became aggressive with K.R., that he pinned her down, or that he inserted his fist into her vagina as K.R. alleged.
[92] I believe Mr. E.B.’s denial. I found him to be a forthright, thoughtful, and credible witness. As I explained above, the inconsistencies that Crown counsel raised in his evidence did not individually or collectively cause me to doubt the credibility or reliability of his denial. Mr. E.B. is entitled to an acquittal on the May 2019 sexual assault charge.
CONCLUSION
[93] I find Mr. E.B. not guilty of both charges of sexual assault.
Released: September 8, 2022
Signed: Justice J.P.P. Fiorucci
[^1]: On August 12, 2022, I found Mr. E.B. not guilty of both counts of sexual assault on Information No. 19-5183 and advised the parties that written reasons would follow. These are my written reasons.
[^2]: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
[^3]: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 (S.C.C.), at para. 25; R. v. J.A., 2011 SCC 28, at para. 23; R. v. Barton, 2019 SCC 33, at para. 87; R. v. G.F., 2021 SCC 20, at para. 25.
[^4]: R. v. Ewanchuk, supra, at para. 42.
[^5]: R. v. J.A., supra, at para. 31.
[^6]: R. v. Ewanchuk, supra, at para. 36.
[^7]: R. v. J.A., supra, at para. 34; R. v. Ewanchuk, supra, at para. 26.
[^8]: Section 273.1(2)(e) of the Criminal Code; R. v. J.A. supra, at paras. 40 and 43.
[^9]: R. v. Barton, supra, at para. 89.
[^10]: R. v. J.A., supra, at para. 3.
[^11]: Ibid, at para. 24.
[^12]: R. v. H.W., 2022 ONCA 15.
[^13]: Ibid, at para. 46.
[^14]: Ibid, at paras. 48-52.
[^15]: Ibid, at para. 68.
[^16]: Ibid, at para. 81.
[^17]: Ibid, at para. 86.
[^18]: Ibid, at para. 86.
[^19]: Ibid, at para. 90.
[^20]: Ibid, at para. 99.
[^21]: Ibid, at para. 103.
[^22]: R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 (S.C.C.), at para. 63.
[^23]: Ibid, at para. 65.
[^24]: Ibid, at para. 65; R. v. Brown, [2005] O.J. No. 3578 (Ont. C.A.), at para. 13.
[^25]: R. v. Francois, 1994 CanLII 52 (SCC), [1994] S.C.J. No. 66 (S.C.C.), at para. 13; R. v. L.(L.), (2009) 2009 ONCA 413, 96 O.R. (3d) 412 (Ont. C.A.), at para. 44; R. v. B.(R.W.), [1993] B.C.J. No. 758 (B.C.C.A.), at para. 28; R. v. W.J., [2015] O.J. No. 2346 (Ont. S.C.J.), at para. 82; R. v. Taylor, [2011] O.J. No. 1910 (Ont. S.C.J.).
[^26]: R. v. Brown, supra, at para. 17; See also R. v. Crampton, [2004] O.J. No. 3161 (Ont. C.A.).
[^27]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.).
[^28]: R. v. H.(S.M.), 2011 ONCA 215.
[^29]: The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at pg. 35.
[^30]: Ibid, at pg. 47.
[^31]: Mr. E.B. went by the name J. and K.R. would call him J..
[^32]: R. v. A.E., 2021 ABCA 172, at para. 31, aff’d [2022] S.C.J. No. 4 (S.C.C.).
[^33]: R. v. J.A., supra, 2011 SCC 28, [2011] 2 S.C.R. 440 (S.C.C.), at para. 37; R. v. Barton, supra, at para. 89.
[^34]: R. v. A.E., supra.
[^35]: Prosecuting and Defending Sexual Offence Cases, Second Edition, Daniel Brown and Jill Witkin, Emond Montgomery Publications Limited, 2020, Toronto, ON, Chapter 14, p. 425.
[^36]: Section 273.2(a)(ii) of the Criminal Code.
[^37]: Section 273.2(b) of the Criminal Code; R. v. A.E., [2022] S.C.J. No. 4 (S.C.C.), at para. 2.