WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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

CITATION: R. v. Hill, 2023 ONCJ 116

DATE: March 3, 2023

COURT FILE No.: Central East Region: Oshawa Courthouse File #20-DV22782

BETWEEN:

HIS MAJESTY THE KING

Respondent

— AND —

ALLAN HILL

Applicant

Before Justice Peter C. West

Trial Evidence Heard on September 7, 8, 9, 12, 13, 28, 2022

Oral Submissions Heard on November 14, 15, and 21, 2022

Reasons for Judgment Dated March 3, 2023

Ms. M. Allan................................................................... counsel for the Crown

Mr. M. Capotosto.................................... counsel for the defendant, Allan Hill

WEST J.:

Introduction

[1] On December 7, 2020, Allan Hill was arrested and charged with the following charges:

1. Between the 1^st^ day of March 2020 to 31^st^ day of March 2020, at the City of Oshawa in the Central East Region Allan Hill did commit a sexual assault on JG;

2. Between the 1^st^ day of March 2020 to 31^st^ day of March 2020, at the City of Oshawa in the Central East Region Allan Hill did commit an assault on JG;

3. Between the 1^st^ day of March 2020 to 31^st^ day of March 2020, at the City of Oshawa in the Central East Region Allan Hill did commit an assault on JG;

4. On or about the 8^th^ day of May 2020, at the City of Oshawa in the Central East Region Allan Hill did commit a sexual assault on JH; and

5. On or about the 16^th^ day of November 2020, at the Municipality of Clarington in the Central East Region Allan Hill did commit a sexual assault on AS.

[2] The trial proper commenced on September 7, 2022, and the Crown called the three complainants, J.G., J.H. and A.S. as witnesses. Allan Hill testified on his own behalf. The main issues in the trial were whether the sexual contact alleged occurred and, if it did, whether it was non-consensual. Central to my decision is my assessment of the honesty and reliability of the complainants’ and the Defendant’s testimony.

[3] Most of the first day was spent dealing with the Crown’s application pursuant to s. 715(1) and s. 486.2(2) of the Criminal Code to permit the three complainants to testify by video having regard to two of the complainants moving away from the Regional Municipality of Durham and the third complainant providing a doctor’s letter detailing mental health issues. I allowed those applications after hearing oral submissions and considering counsel’s written factums. JG commenced her evidence after the afternoon recess. At the completion of the complainants’ evidence on September 13, 2022, Allan Hill completed his testimony in-chief and cross-examination was adjourned to September 14, 2022, due to illness of the Crown. Unfortunately, Mr. Hill was ill on September 14 and his cross-examination was adjourned to September 28, 2022, where his evidence was completed. Oral submissions were adjourned to November 14 and 15, 2022, but could not be completed on November 15, the trial was completed on November 21, 2022.

[4] I delivered my written reasons for judgment respecting the Crown’s Similar Fact Application [R. v. Hill, 2023 ONCJ 115] on February 17, 2023, allowing the application. These are my reasons for judgment respecting Allan Hill’s trial on the five charges set out above.

The Law Relating to R. v. W. (D.)

[5] As in any criminal case, Allan Hill 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.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). 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.

[6] The onus remains on the Crown to prove L.P.’s guilt beyond a reasonable doubt throughout this 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, or 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.

[7] The W.(D.) analysis was synthesized for trial judges sitting alone in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23:

The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.

[8] 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.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.

[9] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 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.

[10] 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.

[11] 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 conflicting versions from the defendant and the complainants, 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, supra.

Position of the Parties

[12] It is the defence position that I should not accept the evidence of the three complainants because of their strong animus towards Mr. Hill and their motive to lie. With respect to JG, Mr. Capotosto submits relationship ended because of incidents involving JG’s son, J., and Mr. Hill’s son. There never was a slap, Mr. Hill never called JG a whore in front of her son. Mr. Hill gave JG an ultimatum and she started packing her belongings. JG’s evidence respecting Mr. Hill contacting her and then coming to her apartment and forcing anal intercourse is completely made up and fabricated. Mr. Capotosto pointed to JG lying about what she the other two women told Allan Hill did to them. In his submission this was a significant lie, which seriously affected her credibility.

[13] The defence pointed to JG’s evidence as to the mechanics of the sexual assault being unbelievable. JG testified she could not get free because Mr. Hill’s hand was on the back of her neck and he was just bending over her. She did not have even a bruise or a scratch despite her struggling to get free. She testified she had soreness and pain in her bum and neck yet she did not seek medical attention. These were all circumstances to consider in assessing her credibility.

[14] Further Mr. Capotosto submitted JG’s delay in making a complaint to the police about Allan Hill and her explanation for why that occurred did not make sense. JG testified she was afraid of Mr. Hill because he told her if she complained he would kill her yet when JG went to Mr. Hill’s house with her friend just before she left she gave him the finger when he did not return the X-box. The defence submitted this demonstrated that JG was not afraid of Allan Hill at all and JG made this up.

[15] It was Mr. Capotosto’s submission that JH should not be believed because on her evidence she remained in Mr. Hill’s house for two days after she alleged her anally raped her. Mr. Capotosto argued this was not something someone would do after being sexually assaulted. JH told the police she had to get out yet she did not leave for two complete days. The defence submitted JH’s manner of leaving makes no sense. It was Mr. Capotosto’s position that JH stayed at the house because nothing happened in terms of Allan Hill sexually assaulting her. JH is a sophisticated professional women, it is difficult to believe she was truly afraid of Allan Hill but did not leave for two days. He argued if what JH said happened she would have found a way to leave when he was away at work or was asleep. Mr. Hill’s explanation made more sense that he was the one who broke up with her because they were two different people and he waited to Saturday morning as M. was there earlier.

[16] Further, when JH sent Facebook texts (Exhibit 1) to Allan Hill’s ex-wife, she did not say anything about Mr. Hill forcing anal intercourse on her. There was an inconsistency between her telling the police she told Michelle C. that Mr. Hill forced himself on her and the fact this was not something she actually said in the text messages. Mr. Capotosto argued it was not plausible that Mr. Hill would move straight into anal sex with JH, his doing this right off the bat is not plausible. Mr. Capotosto also argued that there were differences between her statement to police and her evidence in court respecting when Allan Hill first grabbed her by the back of her neck. JH had a belief that her relationship with Mr. Hill would amount to something and she was devasted when Allan Hill broke up with her. JH had bonded with Mr. Hill’s daughter. This is what created her animus towards Mr. Hill.

[17] Mr. Capotosto also submitted the reason JH went to the police in May 2020, to complain about Allan Hill sometime after texting Michelle C. and was to seek a peace bond because of her concern for her personal safety from Mr. Hill. Mr. Capotosto submitted this demonstrated there was no sexual assault because it did not happen and all JH was concerned about Mr. Hill’s erratic behaviour and trying to obtain a peace bond.

[18] With respect to AS, the defence submitted that Allan Hill asked AS if she wanted to try anal and she told him to stick it in. Further, Mr. Capotosto argued that AS was upset with Mr. Hill the next day because of what he was saying about her in the text messages they were exchanging – how he was accusing her of yelling and screaming at her kids and him when she was not doing that. Mr. Capotosto submitted this is what upset AS towards Mr. Hill, not what he did but what he said to her afterwards. Mr. Capotosto submitted that AS had animus towards Allan Hill as a result of the bad things he said to her. He argued that there were numerous areas of her evidence which was inconsistent with her statement to the police and that these negatively affected her credibility.

[19] Finally, Mr. Capotosto submitted Allan Hill’s evidence should be accepted or at least raise a reasonable doubt. There was no sexual assault of either JG or JH. The anal intercourse attempt with AS was consensual and he stopped as soon as she told him to. AS Mr. Capotosto argued the fact Allan Hill acknowledged this happened bolsters his credibility.

[20] The Crown submitted all three sexual assault charges were proven beyond a reasonable doubt. All three complainants were credible, consistent witnesses and were not shaken at all respecting their evidence of Allan Hill forcing anal intercourse on each without their consent.

[21] The Crown argued that JG did not lie when she testified none of the three women shared their stories concerning Allan Hill. The evidence demonstrates that all three women knew Allan Hill had sexually assaulted each of them but they did not know specific details of what occurred. The Crown argued that JG was fair in her evidence, she did not embellish it or try to make it more serious. JG volunteered that she gave Allan Hill the finger when he did not return her son’s X-box when she went to his house with her friend. This does not demonstrate JG is not afraid of him. Ms. Allan submitted there was no reason for JG to bring a friend with her if nothing had happened.

[22] With respect to JH, Ms. Allan submitted the various steps JH took after Allan Hill sexually assaulted her demonstrate her fear of Allan Hill, that she is terrified of him. She got a new security system, spoke to her neighbours all of which were not challenged by the defence. She reached out to Allan Hill’s ex’s. Ms. Allan submitted her texts with Michelle C. corroborates her fear of Mr. Hill. The defence never put to JH these were only text messages between Michelle C. and her. JH testified she thought she told Michelle C. that Allan Hill had forced himself on her. Ms. Allan asked if JH not sexually assaulted by Allan Hill and afraid of him why was her first question to JG, “Is he going to kill me?”

[23] Ms. Allan submitted JH’s decision to stay a couple of days demonstrates she is the professional, sophisticated woman the defence said she was. She planned a safety plan to leave over a couple of days. This is consistent with someone who is bright. She tries to go to the police but police were in lockdown because of COVID. The defence argument of motive to lie makes no sense that JH had pinned all of her hopes and dreams on future with Allan Hill. It was a 12 day relationship, which she thought might go somewhere but it did not. It was the Crown’s position it is ludicrous to think this educated, sophisticated woman would be so upset over breakup that she would be conspiring and colluding with the other women to make up sexual assault. The Crown argued the text, “You and your friend Steve are fucked”, was explained by JH as referring to the mistreatment of women. Steve had to know what kind of person Allan Hill was yet he set them up. The Crown argued that JH’s evidence was clear and consistent.

[24] Mr. Hill said his breakup with JH was calm and civil. No reason for her to be afraid of him. Mr. Hill testified he made no threats to JH, she was not upset with him, no arguments, there was nothing at all to explain JH’s intense fear of Allan Hill, which Ms. Allan submitted is corroborated by other witnesses.

[25] Ms. Allan pointed out that AS gave her evidence in a straightforward, consistent manner. AS’s anger and upset over what Allan Hill did was palpable. She was clear and consistent throughout that initially it was consensual to not consensual. AS describes Mr. Hill conduct upon seeing JG at school, he panics and is afraid she will see him. The Crown asks rhetorically, “Why was Allan Hill so worried about JG seeing him?”, because he knew he had sexually assaulted JG. He hid from JG because he did not want JG to say anything to AS about him.

[26] Ms. Allan pointed to how AS ended up speaking to the police. She went to her pain management clinic and spoke to her doctor who then had her speak to Amelia, the nurse practitioner. AS asked a question and she broke down crying for a couple of hours. AS convinced to go to Lakeridge Hospital to provide a sexual assault kit. The Crown submitted this flies in the face of a conspiracy or collusion between these three women. AS testified she had no intention of going to the police and was not challenged on this. The Crown argued the other women had been part of this Facebook group chat for several months and never went to the police. When the other two women heard that AS had gone to the police it gave them courage to do what AS had done.

[27] Ms. Allan submitted the defence had it all wrong, AS was not saying it was bad what he said, it was bad what he did and what he said about it. AS was upset that it was all her fault what he had done.

[28] AS telling Amelia she was confused demonstrates in the Crown’s submission how credible AS is. When said it was consensual until it wasn’t she was referring to having consensual vaginal sex with a condom and when the condom was no longer there it was not consensual. When Allan Hill continued by having anal sex with AS, that was also definitely not consensual. AS was very clear on this.

Finally, Ms. Allan argued that JG and JH had been meeting and talking on Facebook in this group chat for 7 months. No intention of going to the police. They had moved on; the group was there for support. However, when they met AS they realized Mr. Hill was going to continue to engage in what happened to them with other women. When they first met AS they did not go to the police, only after AS went to the police did they decide to go. They had known AS for only three days. The Crown submitted there was nothing in the evidence to support the notion they would lie to police and make up a story to get back at Allan Hill because of someone (AS) they first met three days before.

Factual Background of the 3 Allegations of Sexual Assault

[29] Resolution of the issues in this case requires that I first make assessments of credibility and determinations of fact. In so doing, I must instruct myself to adhere carefully to the instructions of W.D.

[30] The three complainants all dated Allan Hill during the period from December 2019 and November 2020 for differing periods of time. JG was involved in a relationship with Allan Hill from December 2019 until mid-March 2020. JH met Allan Hill at the end of April 2020 and they dated for approximately two weeks before the relationship ended. AS met Allan Hill in November 2020 and they dated for a period of approximately a week and a half.

(a) Evidence of JG

[31] JG met Allan Hill on Plenty of Fish in December 2019. They initially communicated by text and email and first met on December 15, 2019. The relationship moved very quickly and she moved into his house at the beginning of January 2020. In the beginning, JG described it as a great relationship, very lovey dovey, and romantic. She kept her place (an apartment) but moved many of her belongings to his house, even her cat. Her son, J., who was ten years old, also stayed at Mr. Hill’s house when he was with JG. Early in their relationship Mr. Hill introduced her to his daughter, M., who was also ten years old.

[32] Mr. Hill drank alcohol every day, he would wake up in the morning and pour himself a coffee mug of vodka and would continue during the day. He used marijuana every day and JG found out a few weeks into the relationship that he also used cocaine. This was something she observed. He was a functional drinker in that he could still do activities and speak without difficulty but usually by noon he would become more belligerent. She spoke to him about his drinking as he was also supposed to take mood stabilizers.

[33] JG described two incidents of assaultive behaviour committed by Allan Hill, which are reflected in the two charges of assault he is facing. I have already addressed the factual background of those offences earlier in these reasons and decided whether the Crown had proven the charges beyond a reasonable doubt. Following the second assault in March 2020, JG packed up all of her belongings that she could, although Mr. Hill would not let her take her son’s X-box, which had been the source of disagreements and arguments throughout their three months living together, put everything in her car and left his residence with her son.

[34] She arranged to go back the next day and pick up belongings she had not taken and her son’s X-box. She went with a friend for safety. Mr. Hill had left her belongings outside on the deck but he did not leave the X-box. She asked him where the X-box was and he did not respond, he was just filming her and her friend with his phone. She testified she gave him the middle finger at one point and then she and her friend left.

[35] She and Mr. Hill continued to communicate by text after this and he said she had really fucked up and hurt him and M. She did not remember all of the texts they exchanged with each other. She agreed he could come over to her house the third week in March. He said he wanted to talk and she agreed to see if they could work things out and she wanted to know why he had hit her.

[36] Mr. Hill came over and they kissed, which she testified was consensual. When he came over they went into her bedroom as her son was there and he would have heard them talking if they stayed in the living room. Mr. Hill then said he was going to make her pay for what she had done to him and M. She thought what he meant the sex was going to be a bit rougher than normal and they would try to work things out. In cross she testified she believed they were likely going to have consensual vaginal sex and that was “fine as long as [they] could try to, at least, work things out or part amicably or get [her] stuff back. Just try to end things on a good note.” He turned her around and bent her over her bed and grabbed her by the back of her neck. He then inserted his penis into her bum and he would not stop and get off of her, even though she told him repeatedly to stop what he was doing. She was wearing pajama pants with just an elastic waistband, no drawstring or buttons, they just pull up and pull down. He pulled her pajama pants down after he said he was going to make her pay for what she did. When he first started to put his penis into her anus she said to him, “No, don’t do that”, but he continued and penetrated her fully. She told him, “No, please stop” at least 50 times when he was doing it. She just kept saying it over and over but he did not stop and he continued for 4 or 5 minutes, until he ejaculated. JG testified that Mr. Hill knew she was not into anal sex at all. While he was doing this he had his hand on the back of her neck burying her face into the bed. He was squeezing almost like he was strangling her from the back. She was squirming underneath him trying to get out but the way he was holding her neck was causing her pain. When he ejaculated he said, “Now you’ve paid the price.”

[37] JG testified in cross-examination that when he told her as they going into her basement apartment that he was going to make her pay for what she did to him and M. she assumed he was going to have sex with her. She agreed with Mr. Capotosto’s question that even after Mr. Hill had slapped her and they had broken up she was going to have consensual vaginal sex with him. Sex was fine as long as they were trying to work things out or part amicably or she would get her stuff back, just try to end on a good note. His comment about making her pay was in the bedroom right before he took down her pajama pants.

[38] Mr. Capotosto suggested that JG did not wear pajama pants to bed and JG told him she still did at age 38. Mr. Capotosto then said he understood she was a practicing nudist and JG said, Not with my son in the house and, no, that is not part of my lifestyle anymore.” Mr. Capotosto continued to press this line of questioning until I raised with him that he had not brought a s. 276 application despite other applications he had brought pursuant to s. 276 and s. 278 provisions. The questioning did not go further and Mr. Capotosto, I believe, recognized his error.

[39] After Mr. Hill had ejaculated he said JG had paid the price. He then stayed for a while and was rubbing JG’s hair because she was crying. He asked if she wanted him to stay and she told him she did not want him there when J. woke up. She testified she didn’t want him to stay because she was scared and in pain. Mr. Hill was acting like nothing at all had happened. She had bruising and soreness as a result of his sexual assault. He left at this point.

[40] The next day JG messaged Mr. Hill for her son’s X-box to be returned to her. The X-box meant the world to her son and it would cost a lot for her to replace it. He asked if that was all she cared about and at that point she decided there was no point communicating with him any further, so she did not respond to him and that was the last time they spoke.

[41] In cross-examination JG agreed that many of the arguments that occurred between Mr. Hill and her were over her son’s behaviour. JG testified her son had mild ADHD and ODD, which he was diagnosed with. He was not in a special class or a special education assistant dedicated to him and did not have accommodation at his school. His diagnosis was mild and he was not prescribed medication. Initially Mr. Hill and J. got along but Allan Hill had problems with her son’s behaviour. He did not think she disciplined her son strictly enough. He thought J. should be locked in his room for hours. Sometimes as punishment JG would take J.’s X-box away from him until he earned it back. Mr. Hill did not think he had earned it back. JG agreed this was a source of arguments between her and Mr. Hill.

[42] JG testified she was aware Mr. Hill had been prescribed mood stabilizer and something else. She told Mr. Capotosto it could have been Abilify but she was not sure. She gave him a reminder from her phone every day for 8:30.

[43] JG described two incidents where Allan Hill assaulted her during their relationship together. The first incident involved Mr. Hill kneeing JG in her back when she was crouching down and cleaning up some dipping sauce that had spilled on the floor in the living room because he believed she had hurt his dog, a Chihuahua. The second incident occurred when her son had come back to Mr. Hill’s house after spending time with his father and Mr. Hill was upset with JG and he told J. his mother was a whore. J. defended his mother and Mr. Hill left them and went into the garage. JG followed Mr. Hill into the garage and got upset and angry with Mr. Hill for saying what he did to her son, “What the fuck are you doing? You know we don’t do shit like that in front of the kids.” He came across the garage, said to her she was nothing but a whore and smacked her across her face, which caused a cut to her lip. She bit her tongue but she said she did not blame that on Mr. Hill, this was her reaction when he hit her. As a result of this she decided to leave. Mr. Hill did not tell her to leave. It was when she was packing everything up that Mr. Hill took her son’s X-box and brought it into his daughter’s room. He said J. did not deserve it.

[44] JG agreed with Mr. Capotosto that Mr. Hill may very well have given her an ultimatum that day that she needed to address J.’s issues, although she did not recall that. Mr. Hill had said this to her on multiple occasions. Mr. Hill never said to her on the day he smacked her that if she did not address J.’s issues she had to leave. JG denied getting into an argument the day she left with Mr. Hill over her giving J. his X-box back.

[45] JG denied that Allan Hill broke up with her on this day because of an argument over her son. Mr. Hill could have told her after he smacked her to pack up her stuff as this was happening frequently at that time. She was not upset the relationship was over, she was upset he had smacked her. She did grab her son’s X-box to bring it with her but Mr. Hill grabbed it from her and put it in M.’s room. When Mr. Capotosto told JG she had not told the police that Mr. Hill took the X-box from her and kept it she said she probably didn’t because it did not seem to be relevant to the charges.

(b) Evidence of JH

[46] JH dated Allan Hill from April 25 to May 8, 2020. She was introduced by Steve R., who was a mutual friend and he suggested she should meet his good friend, Allan Hill and he exchanged their phone numbers to each of them. JH had dated Steve once six years before and they realized it would not work but they remained friends. The exchange of numbers was a week before JH and Allen Hill first met on April 25, when she went to his home and made him dinner.

[47] Initially they got along great as they had a lot in common, they were both single parents. The relationship after the first date moved very quickly and intensely, as Mr. Hill pursued her, constantly sending her messages, they continued seeing each other. She was working from home and the COVID pandemic had started, so she did not really want to be going out to date and meet guys at that time. Mr. Hill suggested since she was working from home why didn’t she just bring her laptop and some belongings to his house and work from there. As a result, within two or three or four days of meeting she was staying at his house, working from his kitchen. He was working nights at that point, a temporary arrangement but full-time hours. He would normally be awake at the start of her workday, she started at 8 a.m. so he would be there just off his night shift. He would usually be up until 9:30 to 10:00 a.m., when he would go to bed.

[48] He had started talking to her about moving in with him as he was financially strained. He had worked for TTC but was let go and had taken jobs through an employment agency. Within six days of dating he was talking to her about moving in with him to share costs and combine their incomes. She testified for her this was utter insanity as it was too quick, too soon. He was asking her to stay over at night and then to work from his house, as everybody was trying to stay in their bubbles because of COVID.

[49] When she started living at his house she observed he was regularly consuming alcohol. This was within the first week of dating. She had gone with him to the LCBO on two occasions and he would purchase a 60 oz. bottle of vodka and it would be all gone in two or three days. She questioned him about this whether it was atypical or typical behaviour for him, as if it was typical it would be a huge red flag for her. Mr. Hill became defensive as he did not see this as being an issue for him. He would mix the vodka with fruit juice. There was no one else drinking the vodka but him. He would drink in the morning and she believed he did this to take the edge off after working his night shift and he never seemed drunk or inebriated. He also consumed weed regularly and she tried it once with him but he would use it in the garage daily to get high. She did not have any ongoing conversations about alcohol or marijuana as it did not seem to be a huge red flag. She believed he was a high functioning alcoholic.

[50] Mr. Hill talked about his ex-girlfriends, JG and KW and talked about how they were both crazy.

[51] Mr. Hill had a daughter M. who was ten years old. She met M. four or five days into the relationship. She believed this was very early but they hit it off and she was a precocious, bright child and very endearing. M. would ask her dad if JH could come over for dinner and have a sleepover. There was a plan made for one day when JH would get to the house early to make dinner for everyone on a Wednesday, May 6, 2020, a week and a half into their relationship. When JH was about to leave her work she got called into an emergency meeting with the director of the company she worked for, which was in downtown Toronto. Mr. Hill kept calling her and saying why was she still at work because she was supposed to leave early. She described him becoming quite belligerent and hard to deal with. She finally finished work and went to get in her car to drive to Oshawa. She saw the low oil indicator light was on. When she went to check the oil level she dropped the cap into the engine and was unable to retrieve it. When she called Mr. Hill to tell him what happened and sought his advice for what she should do, he started freaking out with her.

[52] He told her she was not serious about their relationship, she didn’t love him, and she had ruined his day by making false promises to his daughter. He was trying to make her feel guilty for not leaving from her office earlier. There was a big argument over this and she finally decided she could not get to Mr. Hill’s house in time for dinner so she was just going to go home to her place. He was very upset and she felt she was unable to negotiate a solution with him because of that. The next day he apologized to her and reached out to her to discuss what happened. She was supposed to have gone over to his house on the Wednesday night. Mr. Hill asked her to come to his house that day, which was Thursday, May 7.

[53] She told him they had to discuss what had happened because his behaviour towards her was unacceptable. It seemed like they could work this out by talking about it, so she went to his house in the morning. He was getting off his night shift and was doing his usual routine of having a couple of alcoholic drinks to unwind and seemed absolutely fine. She told him she had a meeting around 12 noon or 1 p.m. Eastern Standard Time with her work and he wanted to have sex prior to her meeting. He was pestering her about this for about a half an hour and she was telling him she didn’t want to, it was unprofessional, but he was quite persistent so she agreed to have sex with him, which she believed would be vaginal intercourse.

[54] They were in bed engaged in foreplay, everything seemed to be going okay and then he wanted to do it “doggie-style” from behind. She had told him they could have sex but it had to be quick because of her meeting, as she had to clean up afterwards. So she got on all fours with him behind her and when they were in this position she noticed he was trying to penetrate her anally, which was not something they had agreed to before starting to have sex.

[55] JH testified they had spoken of this previously, a day or two before, when they discussed boundaries about sex and what her comfort level was versus what he was interested in and she told him there would be no anal sex. She told him maybe it might be something she would try in the future but there needed to be preparation and there needed to be mutual consent involved.

[56] When he tried to penetrate her anally she immediately said “No”. He grabbed her by the back of her neck and pushed her head down into the pillow and she became really uncomfortable and she kept telling him no. When she said no he told her, “Shut the fuck up.” He continued to penetrate her anally, multiple times. She was able to flip over and face him and she said, “No, like whatever you’re doing right now it needs to discontinue and stop right now”. It was like something triggered, there was a flicker in his eyes with a realization that she had said no and he was crossing a line. He got off and got dressed and then gave her a “look of disgust and pure filth” and he said she was a “sexual deviant” and she told him, “You think whatever you want but we’re not doing this.”

[57] He did not have the full length of his penis in her anus, maybe an inch or two. She testified she said “no” clearly and that he had to stop. She had a bit of soreness and pain but not enough to have to seek medical attention. She described feeling more shocked and dismayed, as someone she was beginning to trust and build a relationship with would cross that line. He called her a sexual deviant who liked to have rough sex and engage in other than normal sexual activities.

[58] In cross JH testified when she first felt him trying to penetrate her anally she said no, this was not what they had agreed on. They had discussed this a few days before when they were both lying in bed and talking about sex and what their boundaries were and she told him she was not going to do anal. She told him she was not saying never but there had to be provisions, there had to be agreement, it has to be consensual with conversation prior to trying it. Mr. Hill tried to put it in without any discussion with her. When she said, “No”, he told her to “Shut the fuck up” and then grabbed the back of her neck and pushed her face head first into a pillow. He tried to penetrate her multiple times. She was able to roll over and said to him, “What are you doing? This is not cool. This is not what I want, you need to stop now.” He got up, got dressed, he was disgusted and told her she was “basically disgusting”, she should be ashamed of herself and called her a sexual deviant. She believed he said these things to her to turn it around and blame her. She denied making this up.

[59] She had meetings to attend and he was asleep, so she continued working because he was not around. She stayed because she had brought dishes and personal belongings over earlier in their relationship when she made dinner and stayed over night. This occurred on Thursday and the next day was Friday. She believed his daughter came over that day and Friday was his last night working so she stayed over to gather her belongings to make an exit the next day on Saturday because she no longer felt comfortable or safe being involved with him.

[60] She was concerned about leaving on Thursday night because of how he could react given how upset he was from what happened on Wednesday and what he had done Thursday afternoon. She testified she was trying to formulate how to end this relationship without him throwing a tantrum and going ballistic. On Friday when Mr. Hill went to work she looked after his daughter and was basically childcare for him. This was the last night she stayed. M. was not there the next morning when she left with her belongings so M.’s mom either got her Friday night or Saturday morning.

[61] When she left it was very tense. He was awake still and had not yet gone to bed after he got home from work. He seemed off and very confrontational. She had decided she did not want him to come home to an empty house and then come chasing her down or he wouldn’t leave her alone. He was enraged, grasping the back of a chair as she was getting ready to leave. He was also sweating profusely. After she left and got to her home she barred her doors and looked into getting a better home security system. She spoke to her neighbours to be on the lookout if Mr. Hill was to come around her place. She blocked Mr. Hill on social media and her phone. She also sent a Facebook message to his ex-wife to try to see if he had done anything abusive to her in the past.

[62] JH was challenged in cross-examination as to why she did not leave on Thursday afternoon when Mr. Hill was sleeping, instead she stayed until Saturday morning. JH agreed she did not leave because Allan Hill was so upset after he attempted to have anal intercourse with her and she told him to stop. JH testified he was pretty confrontational and she just wanted to make peace and not leave until she had formulated a plan on how to get out of his house safely and get her belongings out without there being an altercation. When Mr. Capotosto questioned JH’s failure to use the opportunity to leave when Mr. Hill went to sleep after he had attempted anal intercourse with her, JH said the following: “I didn’t. I feared that if I had of start packing up my stuff that was in his house, it would probably enrage him and I wasn’t sure how he would react….I stayed there [Thursday night] because I was fearful that if he had returned and realised that my things were missing, I wasn’t really sure how he would react.”

[63] On Friday night she believed M. was there from three or four o’clock after she got out of school. JH decided to leave Saturday after Mr. Hill got home from work. She agreed she could have contacted the police after the incident to assist her but she did not. Earlier in their relationship she had found some medication bottles, one was for Abilify. She had been suspecting there was something related to mental illness on his part. She has a psychology degree and she knew the medication was an anti-psychotic mood stabilizing drug. The bottle was half empty. She believed it was expired medication, which caused her to believe he was not taking his medication as prescribed. She had brought it up to him.

[64] On Saturday morning she decided she was going to start packing up her belongings and tell him she was leaving. She wanted to establish a safe exit strategy to get out of his house so that he would not try to locate her after she left. She agreed she started to think about formulating a plan to leave his house on the first evening. After she left he called her three or four times, when she was driving and at her home. When she tried to bring something up he would get upset, his tone of voice would escalate, he would agitated and hang up on her. She agreed on the Saturday, May 9, 2020, after this she contacted Mr. Hill’s ex-wife, Michelle C., only a few hours after leaving Allan Hill’s house.[^1] She contacted JG the next day, May 10, because she did not believe Michelle C. was very interested in speaking to her. After contacting JG, they both reached out to Mr. Hill’s ex-girlfriend, KW, and all three women spoke in a three way chat. JH also attempted in May to speak with the police about Mr. Hill but she did not pursue this because the police station was closed because of COVID protocols and she had also made contact with JG and KW and they had created a Facebook group chat, which she testified evolved into a support group.

(c) Evidence of AS

[65] AS met Allan Hill on Plenty of Fish in November 2020.They exchanged phone numbers and began texting, emailing and talking to each other. Their first date, which she testified may have been on November 4, 2020, or somewhere around there, was meeting up with Mr. Allen and deciding he would take her for a motorcycle ride to Port Hope, although the defence pointed out she told the police it was Port Perry. AS indicated she always got those places mixed up and couldn’t remember exactly where they went. Mr. Hill got her a sweater and a helmet and they drove on his motorcycle to the town, they had a coffee, talked a little bit and then he drove her home.

[66] After meeting him that first time she went to his house on a weekend, met his daughter and then the next time he was at her house. She stayed over the first weekend at his house. She felt the relationship was very rushed, he wanted more than what she wanted as he was talking about the future, which she was not wanting at that time as she did not want to rush into things.

[67] In cross AS testified that earlier on the day Mr. Hill came to her house for dinner, he had picked her up from her doctor’s office, they were hanging out and then he drove her to pick up her son from his school. While they were there Mr. Hill all of a sudden slid down in the driver’s seat. AS asked him what he was doing and he said the woman on the sidewalk was JG, his ex-girlfriend, and he did not want her to see him. Mr. Hill had told AS about some of his ex-girlfriends and how they were crazy. AS’s son came out of the school and Mr. Hill drove him to AS’s home and picked up her daughter to go look at another apartment. After looking at the apartment they went back to her place for dinner.

[68] She had concerns early on about his drinking. Every time they were together she could smell alcohol on his breath. She would see him making drinks. He would become more loud, outgoing after he had been drinking. His drinking concerned her. The day he was at her house they were sitting in his car having a cigarette in the parking lot behind where she lived. She raised this concern with him. She told him she did not drink, and she as she would not tolerate somebody drinking. She did not want to date an alcoholic; her ex-partner was an alcoholic so she told him she was not comfortable with his drinking or being around anyone who drinks. He got upset, raised his voice and asked what had he done wrong. She tried to tell him he had done nothing wrong but alcohol was a problem for her. They were arguing about this in his car for about a half an hour and the conversation got a little heated with Mr. Hill yelling at her. She tried to explain she had been in a long term relationship where her partner was an alcoholic and she could not tolerate somebody drinking. He became very defensive, and aggressive in his tone of voice, saying he didn’t have a drinking problem but she told him every time they were together he was drinking. He finally calmed down and he had another cigarette and they reconciled to some extent.

[69] Mr. Capotosto suggested there was no discussion between AS and Allan Hill in his car about his drinking. AS said that was incorrect because she did speak to him about his drinking. It was suggested that AS drinks occasionally because on this evening that Mr. Hill was at her place she had one or two drinks. AS indicated that was incorrect as she did not drink alcohol. She lived with an alcoholic partner. She grew up in an alcoholic home and she does not drink or do drugs. AS was consistent on this issue throughout her evidence.

[70] After their discussion about Mr. Hill’s drinking they went back inside her home and AS started to prepare dinner. They had dinner with her kids, watched a movie and then she put the kids to bed.

[71] AS and Mr. Hill each showered after the kids went to bed. They then went into AS’s bedroom to have what she thought was to be vaginal intercourse. They were having consensual sex when he suddenly asked her to pull out sex toys, which she told him she was not comfortable with. They had talked about this before but there was no discussion on this night. He got upset with that. She was cross-examined on this as well and she indicated they talked about it previously and she may have said she had some sex toys but she was not comfortable bringing them out then with him. AS testified because of the previous incident at his place with the condom, when they were going to start having intercourse she watched him put the condom on.

[72] They were having consensual vaginal intercourse and he flipped her onto her stomach and she asked him to stop for a minute because they had an accident at his house where the condom had come off and she did not want that to happen again. She testified she wanted to make sure the condom was still on. He pulled out a little bit and when she turned, she saw it was no longer there. She told him to stop. She asked where it was and Mr. Hill told her what was the difference if they had an accident, it had come off before so why did one need to be used then. AS testified she consented to engaging in vaginal intercourse with Mr. Hill because he was going to be using a condom.

[73] In cross Mr. Capotosto suggested they had started having vaginal intercourse with her on her stomach and she said that was incorrect, it started with her on her back and then went the other way. It was also suggested she never saw there was no condom on Mr. Hill, which she said was also incorrect. It was still on when he flipped her over and when she asked him to check and she saw it was no longer on and she asked him where it was, Mr. Hill told her, “Well, what’s the difference if we had an accident before, why do I still need to use one?” She told him to stop because of this.

[74] AS said at this point Mr. Hill told her that he was “going to stick his dick in every hole in her body” and she told him “No, you’re not”, to which he proceeded to insert his penis into her anus. She asked him to stop but he pushed it in further. He said, “What the fuck is wrong with you” as he inserted it in farther and she asked him to stop again because it hurt. He continued to push it in further and she asked him a third time to stop. He finally pulled it out and she rolled over on the bed. He was upset and said, “What the fuck is wrong with you because you don’t like to do anything I like to do?” AS explained to him she was not comfortable doing that and he kept asking her what the fuck was wrong with her because she didn’t like anything he likes to do.

[75] AS described how she was shocked he would do that without consent and mad because it went from being consensual and they were getting along to something she was not comfortable with – one minute he was nice and then a totally different person the next. She was upset because he did that without consent, and then he asked her “What the fuck was wrong with her” because she was uncomfortable with anal sex and then proceeded to just get up and get dressed and leave. He never asked her if he could engage in anal sex with her. There was no conversation as to whether she was willing to do that at all in that moment. When he got home he sent her a text which said, “Thanks.” She did not speak with him again after this. This happened late November 16 to early November 17, 2020. He left her house around 1:00 and 1:30 a.m.

[76] AS testified in chief and cross that she and Mr. Hill had discussed previously what they were each into and what they were not into but they had no such conversation about that on this night. She did not agree to anal sex. She denied they had discussed that night engaging in anal sex. They had discussed it previously and she told him she was not comfortable with anal sex. In cross she testified they had talked about things they were into but there was no agreement to do anal sex on that night. Mr. Hill did not have any conversation with her about what he was going to do, he just did it.

[77] AS told the police there is a difference between being tempted and saying yes to something sexual but she never said yes to Mr. Hill. She denied there was conversation with Mr. Hill before he stuck his penis in her anus. He just did it and didn’t stop when she asked him to stop. AS testified she never agreed to Allan Hill having anal intercourse with her. AS made it very clear the only time she might have agreed to anal intercourse might have been after they had been seeing each other for some period of time, she might possibly be open to maybe trying new things but not in that moment. The moment she said stop he should have stopped, not put it in any further but he didn’t stop until she had told him to stop for the third time.

[78] Mr. Capotosto put to AS that where she said there was a difference between being tempted and saying yes, in her police statement, she was suggesting that she was tempted. She responded:[^2]

Not in that moment, no. Maybe if we were seeing each other down the line, I might be open to maybe possibly trying new things but, no, not in that moment.

[79] AS said after Mr. Hill finished what he was doing and rolled off her and asked her, “What the fuck was wrong with you? You don’t like to do anything I like to do.” They got into an argument because of what he said to her.[^3]

AS: There is a difference between being tempted to do things and actually doing them.

Q: Suggesting that you were tempted?

AS: No, I was not tempted. I did not want to do that.

Q: But you – why would you say that…

AS: And he started to and I asked him to stop, he should have stopped. The moment I said “Stop” he should’ve stopped not put it in further and then put it in further until, it couldn’t go any further. He should’ve stopped the first time when I said, “Don’t do that because it hurts, he should’ve stopped” not three times, first time. First time I asked him to stop he should’ve stopped not by the third time.

Q. So I'm going to make some suggestions to you and, again, you don't have to agree with it, I'm just suggesting. I'm suggesting that you were in the middle of that consensual vaginal sex. I'm going to suggest that Allan did not just pull his penis out of your vagina and put it in your ass without any conversation or without any warning?

A. That's incorrect.

Q. I'm going to suggest to you that just prior to that....

A. Well, I, I guess he said that he's going to stick his dick in every hole of my body, that was him suggesting that he's going to have sex with me anally. I guess that was his way of telling me that he's going to have anal sex with me.

[80] When AS gave this answer it was my view she was being sarcastic and she was saying that maybe Mr. Hill might have thought this was him asking her to do anal but she never said yes, she said no. AS made it very clear in cross-examination that she might very well be open to trying new things with someone she’s been dating long term but not after a week and not after she tells the person no. Allan Hill never asked her if he could engage in anal intercourse with her and she never told Allan Hill to “stick it in.” She never agreed and it took her three times saying “No, stop” for him to stop and roll off of her. AS agreed they text messaged each other for a day or two after he left but in those messages she clearly told him what he had done wrong.

[81] AS testified shortly after these events she went to her doctor’s office and spoke with “Amelia” the nurse practitioner. It was my understanding that the defence and Crown had the medical file from this visit but neither party indicated when AS saw Amelia. It was also my understanding that the sex assault kit from Lakeridge Health was also disclosed but again the date was never established by either party.

[82] When AS testified the sex she had with Mr. Hill was consensual and then it was not, she was referring to the fact that initially they were having consensual vaginal intercourse, he flipped her over onto her stomach and she asked to see if the condom was still on because of the previous occasion when the condom had accidentally come off and he pulled out a bit, she looked behind, saw his condom was no longer on and she told him to stop. He did not stop but said to her why did it matter if it was on or not when it had come off previously. This was when he made the comment about sticking his dick in every hole in her body and he then stuck his penis into her anus. She told him to stop three more times. Mr. Capotosto suggested that AS never told Amelia about Allan Hill engaging in anal sex with her without her consent. AS denied this and testified that Amelia got her to attend Lakeridge Hospital for a sexual assault kit to be conducted. Mr. Capotosto advised he was going to call Amelia as a witness but it was not until the defence case was in motion that he advised me he was not calling the nurse practitioner as a witness. The defence is clearly not required to call any witness and I cannot draw any adverse inferences from the defence not calling a witness; however, the only evidence I have on this issue of what was said by AS to Amelia comes from AS.

[83] In cross it was suggested by Mr. Capotosto to AS that Mr. Hill only touched her bum with his penis and when she said stop he did. AS said that was incorrect as Mr. Hill kept putting his penis in her anus until she told him the third time to stop and he rolled over and made the comment to her. AS testified Mr. Hill never asked her if he could do anal and she never told him to stick it in. That did not happen. She never told Mr. Hill she wanted to continue having sex after he stopped forcing anal intercourse, that did not happen. After he said what the fuck is your problem that she did not want to do anything he liked to do he left her place. Mr. Capotosto tried to suggest to AS that she and Mr. Hill had a lengthy argument after she repeatedly told him to stop and she responded:

A. I did not ask Allan to continue having sex with me after he just inserted his penis into my anus after I asked him to stop and definitely not after he did that, rolled over and then asked me, what the fuck is wrong with me because I did not enjoy him having anal sex with me. Three times, it took me three times for him to stop.

Q. But you continued arguing with him?

A. No, he got off and left after he said those things.

Q. I'm going to suggest that the time....

A. I'm sorry, my -- I -- from what I can remember my exact words were, I don't know what kind of other girls you've been dating or allow you to do those things so quickly but I am not that girl. Maybe in the future if I was dating somebody and in a long term relationship I might be open to certain things, but not after a week and I did not agree to let him insert his penis into my anus and it took him three times to stop. Took me three times to tell him to stop until he stopped and then rolled off of me, like he had done nothing wrong and then asked me what I -- what was wrong with me because I didn't want him doing those things to me. I was not comfortable with him doing those things to me. Three times, it took him. It took me three times for him to finally pull himself out.

Q. I'm suggesting there was a long argument there at the end?

A. There was not a long argument there, that was the argument and then he got dressed and left and messaged me when he got home saying thanks.

Evidence of Allan Hill

[84] Mr. Hill described his relationship of three months with JG as great, it was a honeymoon relationship. There were never any incidents, it was fine. They were a perfect couple. There was a text from an ex-boyfriend (Richard) saying JG cheated on Mr. Hill with him and she could possibly have an STD. JG told Mr. Hill this was not true and he had her back 100 per cent. He believed it was not true. He disagreed that he made JG get tested and testified they both decided because it was a new relationship they should both get tested and they did. He never called her a whore at any time. He never expressed any jealousy of her interacting with other gentlemen.

[85] Mr. Hill said JG had her own place but was staying mostly with him at his house, 95 per cent of the time. He described her son, J., as being a very angry child. He had behavioural issues. He described a number of incidents involving J. and his daughter M., which led to significant issues between them. This is what caused him to give an ultimatum to JG that she either had to get her son help or it was over between them.

[86] He testified their breakup occurred he believed on a weekend but he could not be certain of that. He believed M. was at his house but cannot be certain. He denied ever taking her phone for a period of time. He said he confronted JG about her son, probably in the garage away from the kids. He testified J. had been diagnosed and was supposed to be on meds but he was not because she did not want this. He testified JG would take J.’s X-box when he misbehaved but then she would let him have again after only a half hour or hour. He gave her the ultimatum she had to get J. help or she can leave. She was not happy but said she would leave and started packing her stuff.

[87] Mr. Hill described JG as hostile, not vicious at the beginning, just upset and angry. It was a heartbreaking breakup. She did not want to leave but he gave her the ultimatum and she did not want to leave either but he could not have her son around his daughter.

[88] He described the last thing that occurred was she grabbed her son’s X-box and Mr. Hill said to her, “I can’t believe that you would let this X-box destroy us” and she then said, “You want to see how much this X-box this means to me” and she smashed it on the ground in the hallway of his house and then she left. He testified the next time he saw her was the next day or the day after when she came to his house with a friend demanding he give her the X-box. He told her she had smashed it and he threw it out. She and her friend were getting belligerent so he took out his phone and started recording their interaction. He testified unfortunately he did not have the videos. Mr. Hill also said that JG’s friend called the police while they were there on the front step. He was just video-taping them and they finally left in their car. When Mr. Hill was asked what happened to his video he said when he was arrested the police took his phone and when it was returned three months later a lot of stuff had been erased, including this video he had taken.

[89] Mr. Hill denied there ever was an occasion he went to JG’s place after the breakup and then tried to penetrate her anally. In cross-examination Mr. Hill denied the reason she left his house was because he back-handed her in the garage. Mr. Hill said they had many discussions in the garage about her son and he agreed there was a discussion in this garage that ended their relationship. He described them both being upset and that they were upset that it had to end like it did. He denied hitting her.

[90] Mr. Hill denied he went to her place to talk things over after the breakup. Mr. Hill said in cross that JG may have wanted to get back with him but he was done. He did not recall if she actually came to him and said that but for him he was done. He denied going to her place. He denied going there and saying he was going to make her pay for what she did to him and M. He did not anally rape her and then say she had paid the price. She only came to his house to get back the X-box she had smashed.

[91] He agreed with his counsel he was an alcoholic. He mainly drinks when he gets home from work. He does have to have it every day but it does not affect him. It helps him unwind but he does need it every day. He is a happier person when he is on alcohol. When he is on alcohol most of his activities is not a problem for him. His ex-wife of 23 years could vouch for him that alcohol and his drinking was never an issue. When he was asked if JG brought up his drinking he said not to his recollection. He agreed he uses marijuana. He testified he used to use cocaine with KW but does not anymore. He only used it recreationally. He agreed he told JG about his relationship with KW and why he was so damaged. He was with KW for two years, police were at his house nine times and all nine times they took her out of the house which was why he had charges against her. In cross-examination Mr. Hill changed his position respecting his consumption of alcohol and began describing himself as a social drinker.

[92] Allan Hill had no memory of when he started dating JH, probably maybe a month or two after JG. It could have been around the time she said, April 25, 2020. He agreed it could have been about two weeks. They were introduced through a friend of his, Steve R. Mr. Hill did not know if his first date with JH was on a Saturday, it probably was but he did not think this would matter down the road so he never paid attention. He then testified he did not remember his first date with JH, he did not remember what they did, it could have been dinner or they went out but he had no idea. He then testified he believed their first date was on a Wednesday and he had his daughter on the Friday and she came over for dinner with them and spent the weekend. She spent the night on Friday and then stayed the whole weekend.

[93] When asked how the relationship progressed he said it was okay, they both could spot their differences. He described himself as being rough around the edges and she was an old lady so they did not click right from day one but they gave it a chance. They were two very different people but it was not a bad relationship at the beginning and it was not a bad relationship at the end, they were just two different people.

[94] He agreed he had invited her to stay over as she was commuting back and forth from Bowmanville and she was working online, so it made sense. He denied wanting her to move in and for them to combine their incomes. She started bringing stuff to his house, he was into motorcycles and his place was him living like a bachelor and he told her she was not going to change him but she started slowly bring stuff, nice towels, soap trays and changing pictures on his walls.

[95] He testified they had arranged for her to come over on Wednesday[^4] and she promised to have dinner with he and his daughter but she got stuck in the city because of car problems. Mr. Hill said he would not call what happened an argument. She did call and explained what was going on. She called around 2:30 or 3:00 and asked his advice on her car. He gave her his advice with his mechanical background and she did not like his answer and started “getting a little bit fussy about it. I mean if you’re not going to listen to my advice then why call me and she didn’t like that response and she hangs up.” The issue was something to do with her oil cap falling down behind her engine bay, and he told her to go to a Canadian Tire or automotive store to get a new oil cap. She wanted to take it to a shop. She phoned him back and asked what she should do. He was getting frustrated with her so maybe she thought he was angry. She was getting mad at him. He told her to go to a shop and then she texted him to say she was not coming over for dinner and that was how it ended.

[96] He could not recall if he got into contact with her or she did with him but they kind of reconciled, but he knew he was going to breakup with her because it was not working out. He had his daughter that week so he held off to Saturday to tell her. He repeated he believed the car incident happened on Wednesday and they started talking again on Thursday. His kid went home Friday night or Saturday morning so he broke up with her on Saturday. They probably spoke on the phone but he could not remember. At some point on Thursday she probably came over, it wouldn’t have been in the morning as he was coming home from work, so probably later in the evening, probably when his daughter was there.

[97] Mr. Hill denied having sex that day or anytime after that. JH had a good relationship with his daughter. M. really liked her and JH was good to her. Mr. Hill could not remember if JH stayed over Thursday and Friday night and looked after his daughter. All he knew was he broke up with JH on Saturday after his daughter went back to her mother’s. Even if she stayed over Thursday and Friday, he was not there as he went to work.

[98] Mr. Hill was asked if JH brought up that she had found a half empty bottle of Abilify and he said, “Okay.” He was asked if he had a prescription for Abilify at his house around this time and he said, “I’ve had lots of prescriptions, yes.” Mr. Capotosto asked again, “But do you have that prescription?” and Mr. Hill answered, “Yes.” When he asked again if he recalled if JH brought this up he said it was never mentioned to him.[^5] He agreed he was drinking around this time and using marijuana. He denied being upset with JH because she was not going to be there for dinner. He was just frustrated she was not taking his advice and kept calling and hanging up.

[99] When Mr. Hill was asked if he ever had sexual relations with JH he said, “Very minimal. I think we only had sex about twice in two weeks.” He never attempted anal sex with JH. He it was untrue he called her a sexual deviant because he did not know what “deviant” means. On the day he told her he was breaking up with her he may have expressed some emotion to her, probably just disappointment. He could not recall her coming back several times because she forgot to pack certain things of hers but she could have done that.

[100] In cross-examination Mr. Hill described his breakup with JH as being “very civil”, no upset, no anger, no threats. It was very “kosher”. There was no anger by either of them until she sent the text saying, “He and his buddy are fucked”. He agreed the breakup could be described as amicable, friendly even. She had no reason to be afraid of Mr. Hill. Nothing would explain her reaching out to his ex-girlfriends. It was his evidence there was nothing to explain JH being afraid of him. He agreed it did not make sense for her to change her security system or barricade her doors.

[101] He denied JH ever confronted him about his drinking. When the Crown asked him if he ever discussed anal intercourse with JH he said, “I don’t know if it came up or not, to be honest with you….I don’t remember if that happened or not, but I know there was no anal with her.” When the Crown asked if they had conversation about the sort of things they would and would not do he said, “Probably it may have come up. It may have not. I don’t know. I normally do talk to my girlfriends after starting off a relationship to know the boundaries. I mean, of course that conversation always come up.” When Mr. Capotosto asked for Mr. Hill to repeat the last part of his answer, Mr. Hill said, “About like where the boundaries are and what – what can happen and what cannot.”

[102] Mr. Hill agreed his relationship with JH moved very quickly. He agreed that JH had promised his daughter to make dinner and have a sleepover with. This did not happen because of her work delaying her and then her car trouble. He agreed he was frustrated and although he was not mad at JH, he was upset. He denied in the texts back and forth after JH told him she was not coming over that she did not love him or M. and that she thought she was too good her him. Mr. Hill then changed his evidence from his chief and testified he was not sure if the day she was coming for dinner was Friday night. He agreed he had no recollection of the day she came over after the day she got stuck in the city.

[103] When the Crown asked what happened when JH came over after not coming for dinner because of work and the car trouble, Mr. Hill testified for the first time, “Just basically we kiss and made up. There was nothing special. It was just kiss and make up, basically.” The Crown then asked if Mr. Hill and JH had sexual intercourse after they kissed and made up, he answered, “Probably not, because my daughter would have been there.” When the Crown indicated that his daughter would have been in school and pursued this further Mr. Hill said, “I just finished explaining that I don’t know what day it was. It could have been the weekend. It could have been a weekday. I don’t know what day this occurred on.” He agreed if it was a weekday then his daughter would be at school. He also agreed he did not have a specific recollection of whether or not he had any sexual intercourse with JH on the day she came to the house because he could not recall what day it was.[^6] He denied trying to anally penetrate JH and her telling him to stop. He further denied grabbing her neck and telling her to shut the fuck up and then anally raping her. He denied it took her a few days to leave his house as she needed to plan an exit strategy to ensure her safety from him. He agreed this was not true because there was no reason for JH to be afraid of him.

[104] Mr. Hill brought up JH contacting his ex-wife and indicating that maybe she was overreacting to support his position. The Crown then asked Mr. Hill, “And again you can’t think of anything that happened that would cause [JH] to go to the extreme of texting your ex?” He replies, “Yeah, KW. KW. This all goes back to KW to get her off her charges.” Mr. Hill testified KW went and found these three women and they all came up with the same story and “that just sounds a little fishy.”

[105] Allan Hill testified he met AS on Plenty of Fish. He did not know when he first met her. He did not agree he met her at the beginning of November as he still had his motorcycle out and they went for a motorcycle ride on their first date to Port Perry. He testified it was on a Wednesday.[^7] She came to his house on the Friday and stayed the weekend. His daughter M. was there that weekend.

[106] AS went home on Sunday. Mr. Hill had to work that week and they maybe had a couple of meet ups that week. He went to her house starting on the Friday. He testified he left on the Saturday morning at 2 a.m. from her house.

[107] The first weekend at his house was described by Mr. Hill as amazing but the next weekend it was like Jekyll and Hyde. He described her as a totally different person once she was in the comfort of her own home. The first weekend she was sweet, kind and very loving. The following Friday was just nothing but yelling, screaming, hooting, hollering, anger and rage. They broke up at 2 a.m. on the Saturday morning when he went home.

[108] He testified he had sexual relations sometime during the week when they had a couple of meet ups. He believed the first time they had sex was on the Monday when after he ejaculated he pulled out and saw that his condom had come off. He told her she was going to kill him because his “rubber” fell off and it was inside her. It was Mr. Hill’s evidence that she was not concerned about this at all. He told it was a medical emergency and she needed to go to the hospital if she could not get it out on her own, but she refused. This incident occurred at his place. She ended up going home and he kept texting her and finally after eight hours she texted him and said she got it out and for him not to worry about it. He thought there probably was one other time they met up, maybe around Wednesday. He was sure about Monday and Friday but not about another day in the middle of the week but it would have “been just her coming over to my house and hanging out.”

[109] Mr. Hill confirmed he raised J. with her on that occasion when they were sitting on his deck. She told him her son had a disability like J. and was around the same age. AS was from Bowmanville and he knew AS was in the same area as JG and this was why he was asking her about J. He testified AS and JG live about three blocks away from each other. He asked AS what school her son went to out of curiosity and she told him and said her son went to J.’s birthday party. Mr. Hill told AS he dated a girl whose son went to that school and he had the same disabilities as AS’s son. That was the end of the conversation.

[110] Mr. Hill testified he drove AS to pick up her son from his school on Friday and as they were driving up he saw JG standing there so he did a little slide down in his seat and drove by. He told AS, “Oh my God, that’s my ex-girlfriend” and AS was like, whatever. He told her he was going to park up the road so that she did not see him so there was no confrontation. He testified he let AS out of his car. AS had told him not to worry about it and he told AS he did not want any altercations or anything because as he said previously, he does not do drama. Mr. Hill testified he did not want JG to see his car or him so he drove down the street and parked. He waited for AS to get her son and join him. Mr. Hill could not recall if he dropped off AS’s son and then took AS and her daughter to look at an apartment or if he had done that before going to the school.

[111] Mr. Hill denied there ever was a conversation in his car with AS about his drinking alcohol. It was Mr. Hill’s position, why would AS be talking to him about his drinking when she was sitting there drinking with him. They had a late dinner with her kids and then watched a movie with her son. The daughter was not with them as she was upstairs with her boyfriend. Mr. Hill described AS’s son a very sweet, quiet boy.

[112] Mr. Capotosto then reminded Mr. Hill he had said AS was like Jekyll and Hyde at her place. Mr. Hill then said AS did nothing but yell, yell, yell, yell – she didn’t know how to talk in a calm a calm voice whatsoever. He said she was yelling at her kids, at him, whoever, her dog. Whoever she could yell at she was yelling at.

[113] Mr. Hill testified after the kids went to bed they both had showers and ended up in her bedroom. He thought it was probably around 11:30 or 12:00, maybe a little after. Mr. Hill described them kissing and making out and hugging and talking dirty. When Mr. Capotosto asked for Mr. Hill to tell me more about “talking dirty” he explained:[^8]

A. Just basically asking each other what they're into and what they like and sexual talk and just naughty talk. I mean typical dirty talk, I mean -- to get your boat floating, I guess, whatever you want to call it.

Q. Are you clothed?

A. No, we're both naked. We're just laying there making out, kissing, talking.

Q. And so take me -- tell me a bit more about this dirty talk, was anything particular -- do you remember anything particular was brought up?

A. Yeah, the anal thing was brought up.

Q. So we haven't heard your story [indiscernible] tell us what that means?

A. Well, basically, we were talking about what we were into and I asked her is it -- are you into anal, and she's like I've never done it but I'd like to try it and we're still making out and kissing at this time. There was no pause. It was just talking and kissing and making out and then it lead to intercourse.

[114] Mr. Hill indicated there was talk about sex toys at this time. Their dirty talk led them to having intercourse “missionary” at the beginning with a condom. Mr. Hill was asked if AS knew he put a condom on and he initially said she was facing him and it would be hard not to see if somebody is putting a condom on. Mr. Capotosto then asked if Mr. Hill knew AS was facing him when he put it on and Mr. Hill now said, “ I’m not a hundred percent sure, no.” Mr. Hill said they went through a number of positions and AS ended up on her stomach and they were still having dirty talk. According to Mr. Hill it was “typical standard dirty talk” but he did not recall the exact words. He said to some degree they were still talking about likes and dislikes.

[115] Mr. Hill said he was behind AS and he asked her, “So you want to try anal, do you want to do it” and “she’s like, ‘yeah, stick it in’. The “second the tip of his penis touched her butthole, she just bunched forward into the mattress and just started flipping out.” AS was not happy according to Mr. Hill and she said to him, “What the fuck are you doing” and he said to her, “What you told me to do.” Mr. Hill testified he rolled off her immediately.

[116] Mr. Hill testified AS was very upset and he did not know what she was upset about and he was telling her he just wanted to go to bed, he did not want to continue, he just wanted to go to sleep, the mood was ruined. He described this as “a whole lot of bad news” and he just wanted to go to sleep. Mr. Hill testified AS wanted to continue having sex but he did not want to have sex any more. AS was really upset that he did not want to finish because she was not done yet and she was not going to let him go to sleep. As a result he got up, got dressed and left to go home at 2:00 a.m. He knew the time because he looked at the clock in his car. When he got home he texted her, “Thanks.” She texted him the next morning and over the next two days but he did not want to have anything to do with her. He did not remember what she said in the texts because it did not matter as it was over, he was done with her.

[117] Mr. Hill said AS was screaming at him at the foot of the bed for almost an hour. It was Mr. Hill’s position he never asked her to have sex without a condom. When he asked he if she wanted to do anal he pulled his penis from her vagina and put it in. He testified there was no need for lubricant because of “personal lubricant” from the sexual intercourse. In cross Mr. Hill said AS was “standing at the end of the bed for a good half hour, forty-five minutes to an hour” saying, “What the hell’s wrong with you? Why can’t we keep going?” He told he was not in the mood and he just wanted to go to bed but she would not let him so he left.

[118] In cross-examination Mr. Hill testified he had recollection of his relationship with AS but could not give a timeline. It was his evidence he did not know after he was arrested in December 2020 that dates were going to be important. His relationship with AS was about a week and a half. He re-iterated how she was like Jekyll and Hyde, great the weekend she was at his place and then at her place yelling at her kids and at him.

[119] He testified that AS “was not yelling at him until the end” and it was about the sex thing before he left in the early morning hours. She had been very hard on her kids and the dog through dinner. When Mr. Hill was questioned about this difference in his evidence between his chief and cross he said it was all the same day. He agreed when she was yelling at everybody nobody was forcing him to stay. He agreed he stayed through dinner, watched a movie, despite all the yelling by her, they each had a shower and he stayed to have sexual intercourse with her. He testified he liked her up until she started flipping out on him after he attempted anal intercourse.

[120] Mr. Hill said they both had alcoholic drinks, two or three each. He agreed she had told him she grew up with an alcoholic parent and it was very unpleasant. She had told him his previous partner was an alcoholic and it was an unpleasant relationship as well. He did not agree that because of this she did not drink alcoholic drinks. Mr. Hill then testified AS used to be a junkie and had gone to rehab. When he was asked what AS told him he said, “She said, ‘I had a bad experience in the past and I used to be a junkie. I cleaned myself up, blah, blah, blah, blah, blah’.” She never told him alcohol was a problem for her and she would not be in a relationship with someone who was an alcoholic. This exchange followed this evidence:[^9]

Q. And then she went as far as to say that alcohol at all cannot be part of a relationship?

A. Nope. Well, how can say that when you’re sitting there having drinks with your new boyfriend? That’s not true at all.

Q. Right. Because if that were the case, she wouldn’t be drinking...

A. Exactly.

Q. ...with you. Right?

A. Exactly.

Q. That would mean you were making that up?

A. That’s right.

[121] Mr. Hill maintained that the first time they had sex his condom came off inside her and she had no concerns at all about that. She just went on with her day without any concern that she had a foreign object inside her body. She just texted him eight hours later and said, “Don’t worry babe, I got it out. There’s nothing to worry about.” She had gone home shortly after it happened and it was later in the day she texted him.

[122] The Crown suggested to Mr. Hill that because of the accident with the condom that happened previously, when they were having consensual sexual intercourse after their showers AS asked him at one point to stop and make sure the condom was still on and he disagreed. He said this was completed made up. He disagreed when AS saw the condom was not there she told him to stop. According to Mr. Hill there was a condom on the whole time and he took it off when he rolled off her and she wanted to keep going. It was completely false that he said to AS he was going to stick his dick in every hole in her body. It was completely false that he grabbed the back of her neck to hold her down and forced anal intercourse on her.

The Law Respecting Sexual Assault

[123] The elements of the offences charged are not disputed by counsel and as a result, I intend to only briefly address the essential elements of the offence of sexual assault which is the charge facing Allan Hill in respect of each complainant. In a case under s. 271 of the Criminal Code of Canada, the Crown must prove beyond a reasonable that the accused had the actus reus of the offence and the mens rea: R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at para. 87. The accused must have intentionally touched the complainant "knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched": Barton, at para. 87.

[124] Sexual assault requires the Crown to prove the following essential elements beyond a reasonable doubt:

i) That the defendant intentionally applied force;

ii) the complainant did not consent to the force that the defendant intentionally applied;

iii) that the defendant knew that the complainant did not consent to the force that he intentionally applied or was reckless; and

iv) that the force that the defendant intentionally applied took place in circumstances of a sexual nature.

[125] The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature, the fact that sexual assault is a general intent offence, and the requisite elements of the offence: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 11 [Chase]; R. v. Jarvis, 2019 SCC 10, [2019] S.C.J. No. 10, at paras. 50,124-125; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] S.C.J. No 10. The test outlined in Chase is still the focus in most sexual assault trials:

…The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. [Citations omitted.]

[126] The role of consent was recently defined in R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20, at para. 25:

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuck, at para. 42. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.

[127] In R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440,at para. 31, the majority held consent is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" and at para. 36, “consent must exist at the time the sexual activity in question occurs” It is my view the judgment of Chief Justice McLachlin clearly holds that a complainant has to be given the ability to decide, at each and every point of sexual activity, whether and on what terms she is willing to engage in the behaviour.

[128] In Barton, at para. 88, the Supreme Court, citing R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57, held:

…as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases"

[129] Section 273.1 of the Criminal Code provides:

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purpose of sections 271, 272 and 273, where

a) The agreement is expressed by words or conduct of a person other than the complainant;

b) The complainant is incapable of consenting to the activity;

c) The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

d) The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

e) 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.

(3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained.

[130] If the trial judge believes beyond a reasonable doubt that the complainant did not voluntarily agree to the sexual activity in question, or, withdrew her consent to engage in continued sexual activity, then the Crown will have proven the absence of consent.

[131] Sexual assault is a crime of general intent (R. v. Chase (1987), 1987 CanLII 23 (SCC), 37 C.C.C. (3d) 97 (S.C.C.) at para. 12). The mens rea of sexual assault is established on evidence of an intentional application of force with knowledge of a lack of consent.

Analysis

[132] This case is not a complicated one. The central issue is one of credibility and if I accept Allan Hill's version of events or if I reject his evidence but I am left with a reasonable doubt after considering it in light of the whole of the evidence I must acquit him. If my assessment is that neither of those two findings are available on the evidence I must then consider whether the evidence I do accept proves beyond a reasonable doubt Allan Hill’s guilt respecting the three allegations of sexual assault. It is clear from Mr. Hill’s evidence that his version of the three relationships he had with JG, JH and AS is the polar opposite of each of the complainants’ evidence. Each complainant is alleging that Mr. Hill sexually assaulted her by performing anal intercourse without her consent. Mr. Hill denies that this occurred in respect of JG and JH. Mr. Hill’s position with respect to AS is that anal intercourse occurred but it was consensual.

[133] I intend to deal with each sexual assault charge separately in determining whether the Crown has met their onus of proving Allan Hill’s guilt beyond a reasonable doubt. After making those findings I intend to consider what effect and weight the similar fact evidence, which I allowed on this trial has on those determinations.[^10]

[134] The Ontario Court of Appeal in R. v. JC, 2021 ONCA 131, [2021] O.J. No.1048 (C.A.) articulated two overlapping rules trial courts are to employ when assessing a witness' evidence in order to protect against stereotypical reasoning:

(a) The rule against "ungrounded common sense assumptions" and

(b) The rule against "stereotypical inferences"

[135] The first rule demands that judges must avoid "speculative reasoning that invokes "common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice": see para. 58. The second rule requires that "factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour": see para. 63.

[136] I will start by indicating that for the reasons which follow I do not believe or accept the evidence of Allan Hill nor does his evidence raise a reasonable doubt. There are several areas of his testimony which cause me serious concerns about his lack of forthrightness and honesty. His evidence was internally inconsistent in a number of areas between what he said in chief and in cross-examination and there were inconsistencies throughout his cross-examination. He was often evasive and argumentative during his testimony.

[137] He testified he did not need notes of the events that took place during his relationship with each of the complainants because he had a very clear recollection of them, yet it became very evident throughout his testimony, both in-chief and in cross-examination that he had very little recollection of much of his involvement with the three complainants. He initially said he knew what happened in all three of his relationships, one hundred per cent; however, throughout his evidence a common response to questions in chief or cross-examination was “Like I said I don’t remember.” This became a common refrain in Mr. Hill’s testimony and in my view was an attempt by him of not having to answer the question he was being asked.

[138] He did not know when his relationship with JH started or what they did on their first date. He did not know the dates his relationship with AS started. He agreed his relationship with JH lasted no more that two weeks and no more than a week with AS. He told his lawyer he did not think these types of things would matter at the time, so he never really paid attention to the details of the relationships. He agreed in cross-examination he had been arrested in December 2020 and all three women’s names were mentioned. He agreed that he knew in December 2020 the details of these relationships did matter.

[139] One example was Mr. Hill’s evidence in chief concerning his break up with JH, where he described an occasion where JH was supposed to come to his house on Wednesday night to make dinner with his daughter but she had car trouble and they got into an argument over car trouble she was having, as she did not want to follow his advice yet she continued calling for it. He was frustrated with her and he agreed JH might have thought he was angry, so she was getting mad with him. She finally texted him saying she was going home and not coming over. It was my view in chief Mr. Hill was trying to minimize what occurred as a result of JH being kept later at her work and then having problems with her car. He did not know if or when he contacted her or she contacted him after this argument but it was his evidence they kind of reconciled and she came over to his place the next day. He testified at that point he had decided he was going to break up with JH because the relationship was not working out. He had his daughter with him that week so he testified he held off to Saturday. He said he did not want to break up with JH in front of his daughter and he could not recall if his daughter went home Friday night or Saturday morning. He said he and JH talked on Thursday but he could not remember if it was in person or by phone. Mr. Hill testified JH probably came over at some point that day, but he did not know when. It was his position they did not have sex after she came over.

[140] When he was asked why he did not break up over the phone, Mr. Hill said he did not do break ups over the phone, as he was an adult and not a child. Mr. Hill was not sure if JH looked after his daughter Thursday and Friday nights when he worked but she must have. Mr. Hill could not recall if JH was at his home Friday morning when he got back from work. Mr. Hill described everything as being basic and calm as he knew he was breaking up with JH. His explanation for not remembering these days in more detail was because he really wasn’t paying attention at that point. He did not even recall if JH stayed over on the Friday night. He broke up with JH on the Saturday morning but could not recall when. In my view this was an area where Mr. Hill’s evidence changed and was inconsistent. He initially testified he could not remember if JH had slept over Friday night yet he seemed to realize he had just testified he did not do breakups over the phone, so he probably spoke to JH in person around 9 a.m. after he got home from work on Saturday. Mr. Hill then said she must have slept over because she packed up her stuff after he told her he was breaking up with her. When he told her their relationship was over he said she was a little shocked by it but she did not fight back at all. She packed up her stuff and left. He did not recall her coming back a few times because she forgot things. He did not recall holding the door open and saying to her “there’s the door.” According to Mr. Hill it was “a very civil break up.” He said he next heard from her a couple of hours later when she texted him and said he and his buddy are fucked. It is my view Mr. Hill was making up much of his version of what occurred as he was testifying.

[141] His lack of memory of his involvement with the three complainants was evident throughout his evidence in chief but became far more prevalent in his cross-examination. In his cross-examination relating to his break up with JH, Mr. Hill added that when JH came over the day after she had the car trouble they basically kissed and made up, which was completely new and was an addition to his evidence in-chief. He also said for the first time he was not sure if the car incident was on the Friday, when he had clearly testified in-chief it was on the Wednesday of that week and that JH came back to his house on Thursday and he did not break up with her until Saturday because his daughter was with him that week and he did not want to break up with JH when his daughter was there. This is a further example of how Mr. Hill throughout his evidence was selective and what I would call fast and loose with details of the events he was testifying to. In particular, Mr. Hill was fully aware of JH’s allegation that he sexually assaulted her on the Thursday after she came back to his house at his invitation when he testified in chief. He testified Wednesday was the date of the car trouble yet in cross-examination he tried to change it to Friday. This was a common feature of Mr. Hill’s evidence, which in my view seriously and detrimentally affected his reliability.

[142] When the Crown asked him whether after the kiss he and JH had sexual intercourse the following exchange occurred:[^11]

A. Probably not, no because my daughter would have been there.

Q. You’re daughter doesn’t go to school?

A. Yeah. But I just finished saying that I can’t recall the day, but my daughter – I know I had my daughter so we would not have been having sex with my daughter there.

q. Unless it was a weekday and your daughter was a school?

A. I just finished explaining that I don’t know what day it was. It could have been a weekend. It could have been a weekday. I don’t know what day this occurred on.

Q. But what I’m suggesting to you is – please listen – if it was a weekday during the day your daughter would be at school. Correct?

A. Yes. Correct.

Q. And you don’t have a specific recollection of whether or not you had any sexual intercourse with [JH] on that day because you don’t remember what day it was?

A. Correct.

[143] Again, it is my view this is an example of Mr. Hill’s selective memory and recall and an example of what I find is a serious inconsistency between his evidence from testifying in-chief to when he was testifying in cross-examination. In my view it is also inconsistent with his testimony that nothing sexual occurred between he and JH after the car incident prior to their break up. His evidence is that he cannot recall whether he and JH had sexual intercourse when she came to his house after the car incident, which he originally testified was on Thursday, I find this is a significant change and an inconsistency because JH testified that Mr. Hill pressured her to have sexual intercourse on the Thursday after she returned to his house and they had reconciled, which was just an hour before she had a Teams meeting with her work. It was during this sexual encounter that JH testified Mr. Hill had forced anal intercourse with her without her consent.

[144] The cross-examination continued:[^12]

Q. I’m going to suggest to you sir, that when she cancelled the plans with your daughter the night before, you did say those things and I’ll just read them out, “You don’t love me. You don’t love [M.]” and “You think you’re too good for me?”

A. That’s not true because…

Q. And…

A …why would – why would I have her back the next day if that’s what I thought?

Q. When she agreed to come back over the next day, you thought you’d teach her a lesson?

A. No, not at all.

Q. And after that there was some consensual foreplay, you then tried to penetrate her anally and she told you to stop?

A. Not true.

Q. And then you grabbed her by the back of her neck, you told her to shut the fuck up and you forcefully anally raped her, didn’t you?

A. Nope, not true.

[145] I found Mr. Hill to often be flippant in his answering questions in cross-examination. His evidence in-chief often changed when his evidence was challenged in cross-examination by the Crown. For example, all of the three complainants testified they became aware that Allan Hill was consuming alcohol on a daily basis. They would on many occasions smell alcohol on his breath, even in the morning after he came home from work. They described he would often have a coffee mug filled with vodka or vodka with fruit juice. At the beginning of his evidence in-chief Mr. Capotosto asked Mr. Hill if he was an alcoholic and he indicated yes he was. He testified he mainly drank alcohol when he came home from work to unwind, “having a glass of scotch just to unwind, but yes, I do need to have it every day.” When he was asked how he functioned on alcohol he said he was a happier person. He testified he had no problems doing most activities. He volunteered his ex-wife would vouch for him because he’s had alcoholism for years and his ex-wife of 23 years never had an issue with his drinking. He did not recall JG or AS ever raising his drinking as being an issue. He denied purchasing 60 oz bottles of vodka as JH testified he did when they went to the LCBO. In cross-examination Mr. Hill’s evidence about being an alcoholic changed drastically. Initially he agreed he was an alcoholic, but when the Crown asked him for how many years, he said, “Probably about five.” He agreed he drank alcohol daily and that was the case when he was dating the three complainants. He testified he would start drinking when he was done his workday and he disagreed with the complainants that he would wake up and have a drink. Initially in cross-examination he agreed that drinking daily can affect his memory and his ability to clearly recall events in the past.[^13]

Q. And you know that drinking alcohol on a daily basis can affect your memory? Right?

A. Yeah. Yeah.

Q. And your ability to clearly recall events in the past?

A. Yeah.

Mr. Capotosto interjected at this point just after his client gave those answers and asked if the Crown was asking for his client’s opinion on whether alcohol can affect memory. I told him this was cross-examination and I did not see anything wrong with the question and Mr. Hill had no difficulty answering the question as well.

[146] Ms. Allan then asked questions concerning Mr. Hill’s prescription for Abilify that he testified about in-chief. In-chief he testified:[^14]

Q. So [JH] said that she brought up to you that she found a bottle, a half empty bottle of Abilify?

A. Okay.

Q. Do, do you have a, a prescription for Abilify at your house around this time?

A. I've had lots of prescriptions, yes.

Q. But do you have that prescription?

A. Yeah.

Q. And do you recall her bringing up this prescription?

A. No, that was never mentioned to me.

Q. Were you drinking around this period of time?

A. Yeah.

[147] Ms. Allan cross-examined Mr. Hill about his use of Abilify:[^15]

Q. And I think you said the other day that you during the relevant time of these three women that you were on Abilify?

A. Probably briefly.

Q. Okay. And clearly your doctor would have said when you’re taking Abilify that you shouldn’t be using...

A. Yeah.

Q. ...alcohol or other drugs?

MR. CAPOTOSTO: Sorry. I just -- I recall my client’s evidence being that he had a prescription for Abilify. I don’t remember him saying that he was using it at the time. I don’t recall that evidence.

A. That's correct.

THE COURT: Well, I guess when you have a prescription you’re using…

A. Not necessarily. I don’t believe [indiscernible]. I have prescriptions all through my house. I have prescriptions of things all though my house. I stopped using them, but they’re still there.

THE COURT: All right. What was the question, Ms. Allan?

MS. ALLAN: That he as taking Abilify during his -- the relevant time with the three women. He said yes and then I said didn’t you...

A. No, no. I had -- I had a prescription.

MS. ALLAN: Q. Excuse me.

A. I had a prescription for Abilify. I had a bag full of anti-depressants. I don’t believe in anti-depressants but my doctor insists on them and I don’t believe in them. I have a shopping bag full of prescriptions. I could bring it in tomorrow. I don’t believe in anti-depressants but my doctor pushes it so yeah, they’re all kicking all around my house. I don’t believe in meds to cure things like that.

MS. ALLAN: Sorry, Your Honour. He had objected, so I’m not sure...

THE COURT: Well....

MS. ALLAN: And he has changed his evidence now.

THE COURT: I heard -- I heard the answer that he -- you asked if he was using during the time he was dating the three women and he said yes. And now with its changed because...

A. It’s not a change, Your Honour. It’s that I had it in my custody. It was in my home.

THE COURT: That wasn’t the question that was asked.

A. Well, I – I misread the question, Your Honour.

MR. CAPOTOSTO: I heard the question was that he was on Abilify, which has two different answers. It could be he had a prescription for it.

THE COURT: I – I don’t know that it has two answers but again, you know, Mr. Capotosto, let your client answer questions, please. Like, if there’s a problem with – I didn’t hear it the way that you’re saying you heard it and I wouldn’t have taken the question either asked the way that you just said or asked the way the Crown told me she put it differently. I see it as being the same thing, so please just let the questions be asked.

MR. CAPOTOSTO: Your Honour, just to rephrase my objection, I thought it was an unfair question. Ms. – Madam Crown put to my client, “I understand that – I think that you said during the relevant times of the three women you were on Abilify.” My client said no such thing. He agreed that he had a prescription for Abilify and that’s it. So it’s an unfair question.

THE COURT: I’m going – the transcript will reflect what the exact question was. We now have your client’s answer that he wasn’t using Abilify during...

A. I did have it in my custody but I was not using it.

MS. ALLAN: Q. You would agree that when you were prescribed the Abilify your doctor told you not to combine the Abilify with alcohol or other drugs, is that right?

A. Correct. Yeah.

[148] I have reproduced the entire exchange in cross-examination because in my view it demonstrates how Mr. Hill would change his answers so that they would be more favourable to his position. He clearly understood Ms. Allan’s first question in this exchange and told her, as he had told Mr. Capotosto in answer to a question that JH had found a half empty bottle of Abilify and whether he had a prescription for Abilify around his house at that time and he said he had lots of prescriptions and when he was asked if he had that one he replied yes. The Crown’s question was fair as she prefaced her question by “I think you said the other day that you during the relevant time of these three women that you were on Abilify.” I took Mr. Hill’s answer to Mr. Capotosto to imply he was taking Abilify when JH was at his residence. If Ms. Allan was incorrect he would not have answered her, “Probably briefly.” It is my view that Mr. Hill clearly had his own agenda when he was testifying. He finally agreed with Ms. Allan that his doctor had told him not to mix that medication with alcohol.

[149] However, his evidence respecting his drinking changed again in cross-examination.[^16]

Q. And you do agree that alcohol affects your ability to recall events. Right?

A. Not really, because I’m more of a social drinker. I come home from work at night and have a few drinks after work.

Q. Sir...

A. I don’t -- I don’t get hammered. I mean, yes, alcohol does affect the ability to remember but I don’t get to that point so no, it doesn’t affect my memory.

Q. So not five minutes ago you agreed that your daily alcohol use...

A. No. I agreed that...

Q. ...affects your ability...

A. I agreed that...

Q. ...to clearly...

A. ...recollect events.

A. Your question was that – if alcohol affects the memory and I said yes, that alcohol does affect the memory.

Q. No, I didn’t say that, sir. I said yours and you agreed. Now you’re changing that?

A. Oh, I’m sorry. I missed the yours part. I’m sorry.

MR. CAPOTOSTO: Sorry, Your Honour. I recall – and this is why I object – alcohol affects one ability’s to remember, like the universal you, not – I heard that it was alcohol can affect your memory but I didn’t understand that affects your memory.

A. That’s correct.

MS. ALLAN: I said your memory.

THE COURT: Well, again, if there’s a change, there’s a change. If there’s not, there’s not. It will be there.

A. I’m a social drinker. I come home after work and have a few drinks.

THE COURT: Sorry?

A. I’m a social drinker. I come home after work and I have a few drinks. I don’t come home and get hammered. I come home and unwind. It’s like an old-timer coming home and having a couple of glasses of scotch after a hard day at work. I mean, he’s not drunk after the fact and he’s not going to not remember things after a couple of glasses of scotch or whatever he prefers to drink.

[150] There are other examples in Mr. Hill’s cross-examination where his evidence concerning his alcohol consumption changed again. Initially he testified he would always have a drink after getting home from work to unwind but when Ms. Allan questioned him concerning the occasion he testified he heard his dog yelp when he was in the kitchen with JG and suggested he had been drinking then. He said he was not drinking because he had his daughter with him. This is the exchange that followed:[^17]

Q. So now you’re saying you didn’t drink when your daughter was there?

A. I’m sure I drank socially, but I’m not -- I’m not sure what your terms of drinking means.

Q. Drinking alcohol.

A. Maybe a – a glass of wine at dinner, something like that but no, not drinking.

Q. So how many drinks would you have had when you heard your dog yelp?

A. Probably none because it was before dinner.

Q. So now you’re saying you didn’t drink before dinnertime?

A. Not normally, not when I had my kid, no.

[151] At the beginning of his testimony Allan Hill was asked where JG was working when they lived together, he said, “She was working for an illegal trucking company….She worked as a trucking broker but it was all illegal.” When I put to Mr. Capotosto he had not put this allegation to JG, he responded that he just asked Mr. Hill where JG was working. It was my view Mr. Capotosto was completely taken by surprise by Mr. Hill’s answer; however, it is also my view this was another example of Mr. Hill having an agenda and he was clearly attempting to denigrate and disparage JG. This allegation made by Mr. Hill was never to JG by the defence.

[152] Allan Hill’s evidence respecting JG’s son, J., also changed between what he testified to in-chief and later in cross-examination. JG’s son, J. became the reason Mr. Hill said led to the break up of his relationship with JG. He described J. as a very angry child who had some sort of disability with behavioural issues. He told JG she had to do something about her son. According to Mr. Hill, J. was violent and Mr. Hill described how he used to kick, punch, swear and push JG to the ground and he did the same thing to his daughter. He changed this in cross-examination where he testified J. would only bully M. He denied saying that J. kicked, punched, swore, pushed his daughter to the ground because if J. had done that then he would have ended the relationship right then. J. was a bully. His daughter was terrified of him. J. was never properly punished and disciplined for his behaviour by JG. He said he gave JG an ultimatum, it was either get J. help or JG had to leave because he could not have his daughter around that. JG got upset as she was J.’s parent and she told Mr. Hill she was leaving and she packed her stuff.

[153] In JG’s evidence and Mr. Hill’s evidence J.’s X-box played a major role in their disagreements about J. JG would take it away from J. for a period of time if he did something he should not do. Mr. Hill testified JG always relented and allowed J. to get the X-box back far too soon. On the evidence this X-box was very important to J. and had been an expensive purchase for JG. Mr. Hill testified when JG was getting ready to leave after packing up her belongings he said to her he could not believe she would let this X-box destroy their relationship. He testified that JG then said to him, you want to see how much this X-box means to me, and she then smashed it to the ground in the hallway at the front door. Mr. Hill testified the X-box was smashed to pieces, it was in a million pieces. After doing this JG left. Mr. Hill agreed that JG would have known the X-box was smashed into a million pieces because according to him she was the one who smashed it.

[154] He said the next time he saw her she came to his house with a friend and they were at his front door demanding the return of the X-box. Mr. Hill testified that he told her she had smashed the X-box and he threw it away. JG became belligerent towards him so he pulled out his cell phone and began recording JG and her friend. When Mr. Hill was asked where the video was that he recorded he said the police seized his phone and when it was returned to him a lot of stuff on his phone had been deleted, so he was not sure where the video went. In cross-examination Ms. Allan said that Mr. Hill was aware from disclosure the police never went through his phone before it was returned to him in a sealed envelope. He maintained it was deleted. The Crown also put to Mr. Hill that while he was video-taping JG and her friend they called the police to complain about Mr. Hill not returning this X-box to JG and he agreed that this occurred but it was JG’s friend who was making the call. I do not believe Mr. Hill’s evidence about the X-box. There is no doubt this X-box was a source of conflict between Mr. Hill and J.G. but I also accept JG’s evidence that this X-box was extremely important to her son, who suffered from some form of developmental or learning disability and I find it completely unbelievable that JG would smash her son’s X-box. It was Mr. Hill who believed JG’s son was not being disciplined properly respecting this X-box and who would get into arguments with JG because she was too lenient with J. In my view this was a made up story by Mr. Hill, which he further embellished in his testimony about video-taping JG and her friend and that this video was deleted by the police from his phone. Mr. Hill also testified he did not know what happened to his phone or where it was.

[155] When he was asked in-chief what J. had done to cause his decision to give JG an ultimatum, Mr. Hill could not recall when it occurred or what J. had done. The following exchange related to when J. had done something that led to Mr. Hill giving JG an ultimatum.[^18]

Q. So had J. done anything that day?

A. Probably not that day but the night before. There would've been an altercation the night before for me to actually do the breakup on the Saturday morning which would've made sense 'cause my daughter would've been there the night before on the Friday. So something probably happened the Friday night, I can't recollect what but there was something every day with J. so who knows.

[156] He described how JG packed up her belongings. Initially he said she was hostile when she was packing, upset and angry but then he said it was not anything violent and that it was a heartbreaking breakup. Mr. Hill testified JG did not want to leave but he had given the ultimatum. This was a further example of Mr. Hill being inconsistent in his evidence. His evidence about not recalling what incident involving J. occurred that resulted in his making the ultimatum changed during his cross-examination. When Ms. Allan was questioning him that he could not recall the incident involving J. that caused him to give JG the ultimatum he testified for the first time he believed it was the knife incident. When the Crown indicated that he was changing his evidence from what he had said earlier Mr. Hill said he was “assuming it was the knife incident” as “it happened at the end of the relationship, so it was probably the knife incident”.

[157] I do not accept Mr. Hill’s evidence respecting the final night of his relationship with AS where he testified while he and AS were engaged in consensual foreplay and then vaginal intercourse they were having dirty talk, “just typical standard dirty talk,” he could not “remember exact words that were said,” he was behind her and said to her “you want to try anal, do you want to do it” and “she’s like, yeah, stick it in.” They had been dating, on both of their evidence, for less than a week. She had spent a weekend at his house, during an occasion they had consensual vaginal intercourse where his condom had come off inside AS. It was Mr. Hill’s evidence that AS was not concerned about this at all and he had wanted to take her to the hospital. AS describes this incident very differently. They saw each other again on November 16, 2020, when Mr. Hill drove her around, they end up at her house for dinner with her children and then they watched a movie. However, it was Mr. Hill’s evidence that she was completely different on this day, he described how she was like Jekyll and Hyde, the weekend at his house she was all sweet and amazing and loving but now she was just yelling and screaming, at her kids and at him. He described how mean and horrible she was acting and behaving.

[158] Yet it was Mr. Hill’s evidence after the movie was over and the kids went to bed, he had a shower and she had a shower and then they went into the bedroom for sex. Initially in his evidence in cross-examination he testified AS was just yelling and screaming at her kids and the dog and she did not start yelling at him until they were having sex, but he changed this to her yelling and screaming at him was through dinner and the movie, as well as at her kids and the dog, yet he stayed to have sex with her.

[159] The inconsistencies in his evidence concerning this first time he spent time at her house with her kids and his description of this Jekyll and Hyde change in her personality and in her attitude towards him and her kids causes me to completely disbelieve that in those circumstances he would suggest during consensual foreplay and vaginal intercourse that all of a sudden he would suggest they engage in anal intercourse. This in my view does not make any sense and is completely unbelievable. Particularly given AS’s evidence that she told him she would not do anal sex.

[160] Further, his evidence continued that “the second his penis touched her butt hole, she bunched forward into the mattress and just started flipping out.” According to him she was not happy. He testified she was saying to him, “What the fuck are you doing?” and he said, “Exactly what you told me to do,” except her comment implies she had no idea what he was going to do and had not in fact consented. He testified she was very upset and he did not know what she was upset about, which also does not make any sense as he knew exactly what she was upset about because her upset occurred after, on his evidence, he attempted anal intercourse and she said to him, “What the fuck are you doing?”.

[161] He testified as a result of her outburst his mood was ruined, so he just wanted to go to bed to sleep but on his evidence, AS wanted him to continue having vaginal intercourse with her. Again, this is completely unbelievable and implausible and even more so because it was his evidence that she was screaming at him at the footboard of her bed for almost an hour. He testified she was screaming at him, “What the hell is wrong with you? Why can’t we keep going? What’s wrong with you?” I do not believe Mr. Hill’s evidence as to his description of what occurred in AS’s bedroom on November 16 into November 17, 2020.

[162] Throughout Mr. Hill’s evidence whenever there was an issue raised by his counsel by way of objection, Mr. Hill tried to become part of the discussion despite my advising him on a number of occasions that when Mr. Capotosto made an objection, it was an issue to be addressed by counsel and myself as the judge, he had to sit quietly. I told him this several times; however, I believe Mr. Hill saw his counsel’s objections as an opportunity for Mr. Hill to become involved in the fray and it was clear to me that he enjoyed being argumentative. I also believe he was trying to manipulate what was occurring. He often became argumentative with the Crown and with the Court. I finally had to make it abundantly clear to Mr. Hill that if Mr. Capotosto made an objection he was not to become involved and to remain quiet. It was my view that Mr. Hill’s profuse apologies each time he engaged in this behaviour was entirely disingenuous and insincere. On another occasion Mr. Hill, who had no difficulty hearing and answering the questions being asked of him by his lawyer, suddenly advised he was unable to hear Ms. Allan’s questions because of a hearing problem he said he had. It was my view that Mr. Hill was at different times trying to manipulate or control how his questioning was proceeding, particularly when the Crown’s questioning became what I would describe as close or vigorous and difficult to answer.

[163] Mr. Hill testified that his break up with JH was civil and amicable. JH would have no reason to be so afraid of him that she would go to the extreme of reaching out to his ex-wife or his ex-girlfriends. There was nothing to explain why she changed the security system in her home or barricaded her doors. He said this did not make sense. Yet the defence introduced the texts from JH to Mr. Hill’s ex-wife, asking if her fear that Mr. Hill was going to hurt her was justifiable. Further, after texting his ex-wife she also reached out to JG, one of Mr. Hill’s ex-girlfriend’s that he had told her about and she testified she also went to the police to try to get a peace bond or restraining order.

[164] When the Crown was cross-examining Mr. Hill about JH texting his ex-wife, Michelle C., who was a stranger to her, as to what could have caused JH to go to the extreme of texting his ex-wife, he said it all went back to KW to get her off her charges. The Crown put to Mr. Hill that KW was only facing one charge of criminal harassment, which related to an inadvertent call. Mr. Hill maintained it was KW who put these three women up to his charges because she, KW, could not in her field of work have a criminal record. He testified KW would try to get off of her charge anyway possible. According to Mr. Hill, it was KW who reached out to all these girls and got in contact with them. He agreed he had no personal information about his allegation and that this was what someone else had told him. It is my view that Mr. Hill’s allegation can only be described as bizarre and has no support in the evidence I have heard in this trial. KW did not contact any of Mr. Hill’s girlfriends that he dated after her. As I described above, it was JH who first sought out, Michelle C., Mr. Hill’s ex-wife, and she then contacted JG, because she felt Michelle C. was putting her off, which led JH and JG to contact KW. They formed a Facebook group chat, which communicated for about 7 months with each other to provide support to each other but no complaints were made to police by these three women. It was not until AS sought out JG and was brought into this Facebook group chat, after she had gone to her pain management doctor’s office, spoke to the nurse practitioner and then attended Lakeridge Hospital to have a sexual assault kit completed and then two days after being introduced to the three women (JG, JH and KW) was the first to make a report to the police complaining about Allan Hill sexually assaulting her on November 26, 2020. A day later the other two women went to the police. Mr. Hill’s allegations towards KW can only be described as vindictive and bizarre.

[165] As a result my findings and my assessment of Allan Hill’s evidence, I do not accept Allan Hill’s evidence and when I consider his evidence in the context of the totality of the evidence, I further find I am not left with any doubt whatsoever by his evidence as I find for the most part his evidence is incapable of belief. I must therefore go on to consider the evidence as a whole and ask myself whether on the basis of the evidence I do accept, whether I am convinced beyond a reasonable doubt of the guilt of the accused, Allan Hill.

[166] I must now turn to consider the evidence of the three complainants, JG, JH, and AS, which I have outlined above. I have included in those outlines my summaries from my judgment on the Crown’s Similar Fact Application delivered on February 17, 2023, at paragraphs 23 to 50 and have added additional evidence I needed to provide for the trial proper. I intend to deal with each complainant’s evidence separately to determine whether the Crown has proven beyond a reasonable doubt the sexual assault charge Allan Hill faces in respect of each. After considering each of the complainant’s allegations separately, I will determine what, if any, weight I will give the similar fact evidence I determined is admissible.

[167] I found JG to be a credible, forthright and consistent witness who was not shaken despite a very vigorous cross-examination. I have already determined from my detailed review of her evidence as well as the other two complainant’s (JH and AS) evidence, that JG did not lie concerning the discussions she had with the other two complainants involved in the Facebook group chat. She clearly testified she had been told that the other two women had been sexually assaulted by Allan Hill but they had not provided specific details of exactly what they alleged Mr. Hill had done to each of them. Similarly, I found that JG had also advised JH and AS that Allan Hill had assaulted her and sexually assaulted her but did not provide any details. This was confirmed by the other two complainants. I have found as part of the Similar Fact Application that the three complainants evidence was not inadvertently tainted by any of the information they were privy to. As I discussed in my Similar Fact judgment, the caselaw is clear that the issue is collaboration or collusion leading to concoction, contact between witnesses is not the issue. Further, in this case the way in which contact between the three complainants occurred is completely explainable and understandable and in my view accords with common sense and everyday experience.

[168] Despite a very forceful and vigorous cross-examination, JG’s evidence in my view was always responsive to the questions asked and she was not evasive. JG was not argumentative or combative, even when dealing with sensitive issues. She did not embellish her evidence and there were certainly opportunities for her to do so; however, in my view her evidence was fair and not exaggerated. I appreciate that the absence of exaggeration in her testimony, as with the absence of inconsistency, "cannot be used as a makeweight in favour of a complainant's credibility": see R. v. J.L., [2022] O.J. No. 1551 (C.A.), at para. 12; and R. v. Alisaleh, 2020 ONCA 597, [2020] O.J. No. 4004 (C.A.), at paras. 16-17. Yet these remain relevant factors when assessing her testimony.

[169] I found she was careful in not overstating her interactions with Mr. Hill and she often conceded the obvious. An example of this can be seen in the defence questioning JG about her son’s X-box, which was clearly on the evidence a source of conflict and arguments between JG and Allan Hill. JG testified that when she was packing her and J.’s belongings Mr. Hill took the X-box from her and put it in his daughter’s room and told JG that her son did not deserve it. Mr. Capotosto told JG the officer told her to tell the truth and she agreed and said she did tell the truth. Mr. Capotosto said the officer told her to be detailed, yet she did not tell him about Mr. Hill taking the X-box. JG said the officer had told her to describe what happened with the allegations, the abuse she suffered and she did provide details of that. The defence then suggested JG told the police Mr. Hill took the X-box from her two days after she left when she returned to pick up some of her belongings that were still at his house and Mr. Capotosto read her a passage from her police statement:

So I went with my friend, Shannon, to get the stuff and he was videotaping from the door so I went and got the stuff. He wouldn't give me back half of what he said he would. He took my son's Xbox and said I was never getting it back, like, probably five or six hundred dollars’ worth of stuff.

[170] When I compare her evidence in Court with her police statement I do not see any inconsistency as submitted by the defence. JG in my view was including the X-box in the property she went with her friend to retrieve and she brought her friend for safety in numbers because she was afraid of Allan Hill. Mr. Hill corroborated this as he testified when JG returned to pick up her belongings she had a friend with her, who was calling the police because of Mr. Hill was not returning JG’s son’s X-box.

[171] Mr. Capotosto in his submissions submitted that in court JG testified Mr. Hill came over to her house to repair their relationship but she did not say this to the police, which is not an accurate recounting of JG’s statement, where she said in her police statement: “A couple of days later, he messaged me and said, ‘You don’t know how much you fucked up, like I really miss you….I really wanna talk to you, like I really wanna work things out.” In my view there was no inconsistency between her police statement and her evidence in court. She was consistent throughout her evidence.

[172] I found JG to be honest and straightforward in her evidence. Her description of Mr. Hill and her communicating after the incident in the garage where he back-handed her across the face and she left, accorded with the nature of the relationship she described she had with Mr. Hill. They had been living together for three months, they had been having difficulties in their relationship because of disagreements between them respecting how lenient she was with her son and how strict Mr. Hill believed she needed to be. It was JG’s evidence she believed maybe they could work this out, maybe they could part amicably and Mr. Hill would return the X-box. Mr. Hill’s version of the events that led to the breakup in my view does not make sense. It is his version that JG and he had a major argument over J.’s X-box, he basically told JG to get J. the help he needs or the relationship is over. According to Mr. Hill JG was always giving in to J. She would take away his X-box but then let him have it back and J. was not learning how to behave appropriately. It is my view that Mr. Hill’s description of JG smashing J.’s X-box in response to his comment to her that she was going to let the X-box destroy their relationship is completely unbelievable. This X-box was clearly a possession of her son that was extremely important to him, JG described the X-box as something that meant the world to her son. It makes absolutely no sense for JG to smash it. Further, when the evidence of JG coming to Mr. Hill’s house with her friend and she is requesting Mr. Hill return the X-box, is added to the whole of the evidence, it is my view Mr. Hill’s evidence about JG smashing her son’s X-box is totally fabricated.

[173] Another aspect of JG’s evidence which supports her credibility is why she ultimately decided to go to the police to file a complainant against Allan Hill. Mr. Capotosto submitted JG’s delay in filing a complaint should adversely affect her credibility; however, late disclosure in sexual assault cases will not, standing alone, constitute a reason to diminish a complainant's credibility. At para. 65 of R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, a majority of the Supreme Court of Canada stated:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. 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. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[174] JG did not go to the police in March 2020 after she said Allan Hill had anally sexually assaulted her because she was afraid of him as he threatened her and she just wanted to move on with her life. I do not find Mr. Capotosto’s submission that because JG gave Mr. Hill the finger when he would not give her back the X-box persuasive at all. Her friend was with her when she did this and in my view it reflects nothing more than frustration and upset towards Mr. Hill not returning the X-box.

[175] JG, after being contacted by JH on May 10, 2020, did not go to the police at that time either, as she testified she and JH and KW formed a Facebook group chat, which she testified provided support for all three women and none of them went to the police. It was only as a result of AS first approaching her at her son’s school and telling her that she too had been abused by Allan Hill that JG decided she had to go to the police to report what Allan Hill did to her otherwise he would continue his behaviour in the future with other women. I find JG’s answer to be truthful and genuine.

[176] AS’s evidence respecting JG’s reaction when she first approached JG at the school, in my view, is also corroborating of JG’s fear of Allan Hill. Although JG believed AS approached her in May or June 2020, this was clearly a mistake made by JG, as JH testified JG only introduced AS to her and KW in the Facebook group chat three days before JH went to the police on November 27, 2020. AS testified she told JG they had someone in common and JG asked, “Who?” and AS said, “Allan Hill”. AS described JG spinning around looking to see if Allan Hill was there and she asked AS “Are you here with him?” AS said, “No,” and JG asked, “Are you sure he’s not here?” AS said, “Yes, I’m sure” Then JG asked if they were dating. AS said they were dating, they were talking and seeing each other and she told JG from the look on her face, “He is not a very nice person.” JG replied, “You should run, he’s not a nice person.” JG asked if Allan Hill hurt her too and AS said yes. They exchanged phone numbers and JG asked if she could add AS to a group chat because there were other victims. AS said JG could add her. AS testified she was only involved with the other three women (JG, JH and KW) for a few days before she went to the police. In my view JG’s response demonstrates she was still afraid of Mr. Hill nine months after she had been anally sexually assaulted.

[177] Considering the totality of the evidence, for the reasons I have indicated I do not accept the evidence of Allen Hill denying JG’s allegation of his anally sexually assaulting her. Further, I am not left with a doubt by his evidence due to these same reasons and as a result of my assessment of his evidence in the context of the evidence as a whole of the other evidence which I do accept, that being the evidence of JG, which I accept as truthful and accurate that I have no doubt this sexual assault occurred and as a result I find Allan Hill guilty of the charge of sexual assault respecting JG.

[178] I found JH to be a credible and articulate witness. She was not argumentative or combative and provided her evidence in chief and cross-examination in a clear and consistent manner. There were no inconsistencies in her evidence and I will address a number of inconsistencies alleged by the defence, which in my view were not inconsistent at all.

[179] JH knew and dated Allan Hill for approximately two weeks. Their relationship moved forward extremely quickly, as in the case of JG and AS. It was the beginning of the pandemic and JH was staying over at Mr. Hill’s house within the first few days of their relationship and was working at her job online during the day when Mr. Hill was sleeping. She was there for the two weekends prior to May 6, 2020, during which Mr. Hill was not working those days from 10 p.m. and returning to his house in the morning. They spent those two weekends together.

[180] One of Mr. Capotosto’s submissions was it was not plausible that Mr. Hill would go straight into anal sex on the Thursday, May 7 afternoon, implying somehow that this was not something that Mr. Hill would do with JH the first time they had sex. JH testified that on May 7, she and Mr. Hill were engaged in consensual foreplay and she believed they were going to have vaginal sex but Mr. Hill stuck his penis into her anus instead. JH did testify in cross-examination that a few days prior to this Thursday she and Mr. Hill had discussed boundaries in terms of sexual activity while they were lying in bed and she had told him that she was not interested in anal sex, although maybe they might try new things with agreement, if there were parameters put in place and it was consensual and had been discussed prior. Mr. Hill could not recall if he had this discussion with JH but this was something he routinely did with women he was just starting to date. JH was not questioned by either the Crown or Mr. Capotosto as to whether Mr. Hill and she had sex prior to this occasion on May 7. There was no s. 276 and or s. 278.93/94 application brought relating to sexual activity which may or may not have occurred between Mr. Hill and JH prior to May 7. Mr. Capotosto did bring out in-chief from Mr. Hill that his sexual activity with JH prior to May 7, 2020, was very minimal, and he thought they only had sex about twice in those two weeks and he said he had never attempted anal sex with JH.[^19] I do not find this submission by the defence to be persuasive as it goes directly to whether I believe Mr. Hill’s account, which I have indicated I do not.

[181] Further, this submission is completely inconsistent with what Mr. Hill testified occurred between he and AS on November 16/17, 2020, where, as Mr. Hill testified, after having had sex only once with AS before that date, he engaged in foreplay and vaginal intercourse with AS on November 16/17 and out of the blue asked her if she wanted to engage in anal intercourse. When one adds in that AS testified that she and Mr. Hill had a conversation at some point about what they were each into sex-wise, she had told him she was not into anal sex, although maybe after a period of time, with discussion, planning, agreement and planning she might be prepared to try some new things.

[182] The defence submitted that JH should not be believed because she remained in Mr. Hill’s residence for two days after she claimed to have been anally sexually assaulted. Mr. Capotosto argued on the evidence it was clear that JH could have left Mr. Hill’s residence when he went to bed after coming home from work in the morning on the Friday or she could have left when he went to work on Thursday and Friday nights. Mr. Capotosto submitted this conduct was not what someone would do who had been sexually assaulted – they would want to leave when he was not there. Mr. Capotosto argued this should raise questions and cause concerns as to JH’s truthfulness concerning her allegation that Mr. Hill had forced anal intercourse with her on Thursday around 12 noon before her meetings. He submitted her staying in Mr. Hill’s house for two days was not logical and her manner of leaving made no sense as JH was a sophisticated professional woman. He argued it was difficult to believe if she was truly afraid of Allan Hill she would not leave for two days [See also para. 15 above]

[183] It is now well-known to the court that victims of abuse react and respond differently to the situation that they are in. There is no typical behaviour that can be relied upon in situations of domestic abuse. It is dangerous for the court to rely on stereotypical behaviour as to how an individual is or is not likely to behave while experiencing domestic violence or after being sexually assaulted to make assessments about their evidence. In fact, reliance on such stereotypical behaviour to assess credibility is prohibited. Appellate authority has made it clear that courts should not rely on stereotypical views about how victims of sexual assault would or would not behave to assess credibility and to do so is a reviewable error of law. (See: R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833 and the cases cited, including R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, aff’g 2017 ABCA 237, [2017] A.J. No. 746).

[184] I find that JH provided an explanation for why she did not leave Allan Hill’s house as soon as Mr. Hill went to sleep or when he went to work on Thursday night and similarly on Friday during the day and when he went to work Friday night. She was trying to allow Mr. Hill to cool off and calm down, as she was very concerned as to whether he would hurt her in some way if she just left and packed up her belongings. Further, on the evidence in-chief of Mr. Hill himself, JH was at her house on Thursday and Friday nights because his daughter was with him and JH was providing childcare while he was working. As I discussed above this was another area where Mr. Hill tried to change his evidence in cross-examination where he testified he was not sure if his daughter was at his house those days or not.

[185] Another piece of evidence which I believe corroborates JH’s fear of Allan Hill is the Facebook text messages (Exhibit 1, filed by the defence) between JH and Mr. Hill’s ex-wife, Michelle C. JH sent the first message just two hours after she left Allan Hill’s residence. She did not know Michelle C. and had never met her. JH tells Michelle C. that she “just ended it [her relationship with Allan Hill] and I’m feeling pretty terrified. I don’t mean to drag you in to this but I’m really worried I might need to contact the police.” The texts go on from there talking about her concerns over Mr. Hill’s drinking and the fact he may have mental health issues. In my view these messages corroborate JH’s fear of Allan Hill and provide a clear and believable explanation for why she did not immediately leave his house after he anally sexually assaulted her. It is my view and I find these text messages are prior independent corroboration which is supportive of JH’s decision not to immediately leave.

[186] Mr. Hill testified in cross-examination that there was no reason for JH to be afraid of him as he had not done anything to her, he had not threatened her, their breakup was civil with no difficulties. It is my view that JH’s texts to Michelle C. put a lie to Mr. Hill’s evidence he was the one who broke up with JH and that the breakup was civil with no issues. JH certainly had issues because within two hours of leaving she was contacting Mr. Hill’s ex-wife trying to investigate if her fear was real.

[187] JH did not believe that Mr. Hill’s ex-wife was really interested in assisting her. She testified she felt Michelle C. seemed pretty distant in the texts and that she was “giving minimal feedback and minimal response” to JH. In cross JH testified she had a gut feeling what Michelle C. was saying to her was said in order to protect Michelle C. and her daughter (M.) or Michelle C. had closed that chapter of her life and wanted to move on. As a result JH decided to contact Allan Hill’s two previous girlfriends, JG and KW and this was exactly what she did. She testified she first contacted JG on social media because Michelle had seemed disinterested and didn’t want to be part of the conversation with her. JG testified the first question asked by JH was “Is he (referring to Allan Hill) going to kill [her]”. JH testified she knew of the other two women because Mr. Hill told her about them, he said they were crazy and had cheated on him and KW was even charged by the police. In my view JH contacting JG demonstrates a continued concern and fear by JH of Allan Hill, even after she was reassured by Michelle C. she had nothing to be worried about. Further, JH tried to contact police about Mr. Hill but was referred to the Courthouse because of COVID lockdowns and ultimately did not pursue that avenue. She testified the Facebook group chat became a kind of support group for the three women, JG, JH and KW and none of them pursued making a complaint to the police.

[188] The inconsistency alleged by Mr. Capotosto between JH’s police statement and her testimony in court concerning whether Allan Hill pushed JH’s head into the pillow before he first attempted anal intercourse or after his first attempt in my view is a complete non-issue and there is no inconsistency. Mr. Capotosto submitted what he said was an inconsistency signified a carelessness with the truth over the act of sexual assault JH alleged. I find that JH was in fact completely consistent in what she told the police occurred when Allan Hill pestered her to have sex prior to her Teams meeting online until she gave in, it commenced with foreplay, Mr. Hill asked if they could do it “doggie-style” from behind so she moved to being on all fours. She then noticed he was attempting to penetrate her anally and she told him no and he grabbed the back of her neck and tried multiple times while holding her neck and pushing her face into the pillow. Her description in her police statement that was read to her is very similar and in my view is consistent with her evidence she gave in chief and cross-examination.

[189] It was submitted by Mr. Capotosto during his argument respecting the Crown’s Similar Act Application that JN and JG did not file a complaint with the police alleging Mr. Hill anally sexually assaulted them until they had spoken to AS and that both JH and JG had appropriated what AS alleged Allan Hill did to her and concocted their own story.[^20] In fact, both JH and JG were cross-examined on this theory of the defence and they each emphatically denied this suggestion. JH testified she had decided initially to move on with her life, she was afraid of what Mr. Hill might do if she complained; however, after becoming aware that Mr. Hill was continuing to abuse woman because of AS, she realized she could not continue to do nothing and she decided she had to go to the police and this is what she did. It is my view that this explanation by JH as to why she did not initially go to the police to complain about Mr. Hill anally sexually assaulted her is completely understandable and believable.

[190] Finally, Mr. Capotosto submitted JH was devastated by Allan Hill breaking up with her as she had bonded with his daughter. He argued this provided her a motive to lie about Allan Hill. Mr. Capotosto’s submission is not born out by the evidence. JH thought her relationship with Mr. Hill might work out and she testified she was encouraged by this; however, after Mr. Hill anally sexually assaulted her, after she had told him earlier she did not want to engage in anal sex, she had no interest in pursuing her relationship with him. Her conduct in contacting Michelle C., trying to speak to the police in May, only to be frustrated by the COVID lockdown and then connecting with JG and KW where they created a group chat, which became a support group for her, puts a lie to this submission. I find if JH was devasted by anything it was that a man she was beginning to trust and see the possibility of a future with would commit this horrendous sexual assault on her. I accept JH’s evidence that she was devasted by what Allan Hill did to her by sexually assaulting her. Her conduct for seven months not pursuing any legal action against Mr. Hill also speaks volumes against the defence position that she had a motive to lie and fabricate and concoct a story against Mr. Hill.

[191] I find an absence of any evidence of a motive to lie respecting JH, although I cannot find no motive may exist at all. This is; however, relevant evidence in assessing a witness’ credibility. (See R. v. Gerrard, 2022 SCC 13, [2022] S.C.J. No. 13; R. v. A.R., [2022] O.J. No. 192 (C.A.), at para. 7, and R. v. Ignacio, [2021] O.J. No. 475 (C.A.).) JH had no reason to fabricate her allegations against Mr. Hill. Of course, I must caution myself as to the limited uses of this evidence as described by the Supreme Court in R. v. Gerrard and in R. v. Ignacio. I make a similar finding of an absence of evidence of a motive to lie respecting JG and AS, although I recognize I cannot find no motive may exist at all. It is relevant evidence in assessing their credibility.

[192] Considering the totality of the evidence, for the reasons I have indicated I do not accept the evidence of Allen Hill denying JH’s allegation of his anally sexually assaulting her on May 7, 2020. Further, I am not left with a doubt by his evidence due to these same reasons and as a result of my assessment of his evidence in the context of the evidence as a whole of the other evidence which I do accept, that being the evidence of JH, which I accept as truthful and accurate that I have no doubt this sexual assault occurred and as a result I find Allan Hill guilty of the charge of sexual assault respecting JH.

[193] AS testified in a straightforward consistent manner throughout her evidence. She was clear both in chief and cross-examination that the sexual activity she was involved in with Mr. Hill on November 16/17, 2020, began consensually until it wasn’t, when he stuck his penis in her anus without any consent or forewarning or discussion. She never waivered in this description. Mr. Capotosto put to AS it was during their sexual activity that night that Mr. Hill had the discussion about anal sex and whether she was okay with him doing it. It was AS’s evidence this conversation occurred before and she told him she was not into anal sex. In cross examination she testified she did not think it happened the night they were having vaginal intercourse but if they did she did not tell him to stick it in. AS testified there was no conversation about anal sex that night when Allan Hill was having vaginal intercourse with her and she told him to stick it in. That did not happen, she never agreed to anal sex.

[194] AS’s evidence did not change, her evidence in chief was consistent with her evidence in cross-examination. I found her evidence to be compelling and straightforward. Her answers were thoughtful and there were occasions where she corrected them when she realized she had been mistaken. Despite a lengthy cross-examination, which at times was vigorous and pressing, AS remained calm, she did not become argumentative and her answers were always responsive to the questions being asked.

[195] Mr. Capotosto tried to argue that AS was not upset about what Mr. Hill did to her in terms of his attempting anal intercourse with her, rather, it was his position that she was upset about what Mr. Hill said to her and what he said about her. Mr. Capotosto referred to AS’s statement where she told the officer it was really bad what Mr. Hill said to her. It was Mr. Capotosto’s position that the issue for AS was not the sexual assault, rather, the issue was what Mr. Hill said, which was really bad. He referred to her agreeing with his suggestion that she believed what Allan Hill said to her was ‘really bad.” It is my view this submission is nonsensical and illogical and I do not accept Mr. Capotosto’s characterization of AS’s evidence. In my view she believed what he did to her was really bad and what he said about it was bad as well. Throughout AS’s evidence she consistently maintained that what Mr. Hill did to her (anally sexually assaulting her) and what he said afterwards to her (what was her problem that she did not want to do anything he liked) were connected. AS testified both in chief and cross that she was upset about what he did to her and what he said after when he tried to say it was all her fault. It is completely understandable and believable that she would be upset, even angry about both. The following exchange was how AS responded to this suggestion by Mr. Capotosto:

Q. So I suggest to you that what you're saying there it's really bad what Allan said to you, not what he did to you but what he said to you that's what you're stating there?

A. Sure, we're 30 -- yeah, yeah but what he said to me

Q. What really hurt you...

A. Okay.

Q. ...with Allan Hill wasn’t anything he did to you, it's what he said to you after you guys broke up?

A. It's the whole thing. It's what he did to me and then the things he said afterwards where he made it seem like it was no big deal. So after being sexually assaulted and then having someone ask me, what the fuck is wrong with me because I'm not into anything that he's into, I think that's pretty bad.

[196] It is important in my view that AS dated Allan Hill for just under two weeks (November 4 to November 16/17, 2020). It was Mr. Hill’s evidence that AS was the only complainant of the three complainants that he attempted to have anal intercourse with, after receiving her consent. It was his evidence that after engaging in foreplay and vaginal sex he flipped AS onto her stomach and asked her if she wanted to do anal and she told him to stick it in. It is revealing that in his evidence in chief Mr. Hill testified during their sexual activity there was “dirty talk” between them, which he testified was to “get their boat floating”. Yet despite being asked what he meant by “dirty talk” on a couple of occasions by Mr. Capotosto, all he was able to indicate was that the anal thing was brought up. When he was asked to provide more detail as to what was said that was “dirty talk” all he could say was “same thing just typical standard dirty talk. I don't – I can't remember exact words that were said. I mean not the whole conversation just typical dirty talk.” Mr. Capotosto never asked AS about whether there was “dirty talk” between she and Mr. Hill during the foreplay and vaginal intercourse leading up to Mr. Hill attempting anal intercourse. It is my view this is another example of Mr. Hill making things up as he was testifying.

[197] I found Mr. Hill’s evidence respecting how he obtained AS’s consent to engage in anal intercourse to be completely incredible and unbelievable. Firstly, on his evidence he and AS had had sex on one prior occasion, when his condom had come off and it had stayed inside of AS. Secondly, AS testified she and Mr. Hill had discussed a few days previously what the boundaries were and what they each were into and were not into. AS testified she told Mr. Hill she was not into anal sex. She was not challenged on this. On her evidence she had told him she might later on in their relationship be interested in trying out new things as long as there was prior discussion, planning and agreement. She was not challenged on this either. Mr. Hill agreed there was such a conversation, although he testified anal sex was also discussed with AS on this night. Thirdly, AS testified she asked to see if Mr. Hill was still wearing the condom at one point during their consensual vaginal intercourse. There is significant disagreement between Mr. Hill and AS over whether AS did this.

[198] AS testified because of the earlier incident where Mr. Hill’s condom came off during vaginal intercourse accidentally she watched Mr. Hill put the condom on before they started having vaginal sex with her lying on her back. Mr. Hill agreed he put the condom on before he commenced vaginal intercourse, they were both naked facing each other lying side by side on the bed. Initially he said she would have seen him do this because he did it in front of her but later in chief he said he was not 100% sure she saw him put it on. AS testified she asked Mr. Hill to stop after he had flipped her onto her stomach and started having vaginal intercourse with her. He stopped and pulled out a bit and she looked behind and saw there was no condom and she told him to stop and asked where the condom was. Mr. Hill testified AS never told him to stop so they could check to see if the condom was still on after Mr. Hill changed their respective positions.

[199] It is my view that given what happened previously it was reasonable for AS to request Mr. Hill to stop when their positions changed to make sure his condom was still on. It was Mr. Hill’s evidence after he changed positions and was engaging in vaginal intercourse from behind AS, this was when he asked if she wanted to try anal and she said, “Yeah, stick it in.” I do not believe or accept Mr. Hill’s evidence respecting this. This was not the kind of discussion, with planning and agreement AS testified she had indicated to Mr. Hill a few days before this that might cause her to change her mind and agree to try something new. Further, their relationship at most was just under two weeks along. Mr. Hill’s evidence does not accord with common sense given the discussions AS had with him that were not challenged in any way by the defence.

[200] Further, it was Mr. Hill’s evidence that when the condom came off previously and remained inside AS he told her she should to go to the hospital. AS was asked if Mr. Hill said this to her and she said he did not. Mr. Hill then testified AS told him she did not care about this condom being stuck inside her and was not concerned about it at all. AS was not asked about Mr. Hill’s evidence as to her lack of concern about this condom apparently stuck inside of her. She was not asked if she got it out or when, although Mr. Hill volunteered in cross-examination she called him eight hours later to tell him she got it out. I had allowed Mr. Capotosto to pursue this area in cross-examination over the objection of the Crown as the issue of the condom getting stuck arose during AS’s evidence in chief. However, Mr. Hill’s evidence concerning the condom and AS’s lack of concern was completely contrary to what she testified to in chief and cross. It was her position that she believed the condom came off by accident and she readily agreed Mr. Hill expressed concern about what happened and had apologized to her. As a result of this incident she testified this became a concern for her during this next occasion she and Mr. Hill engaged in vaginal intercourse. This was why when Mr. Hill during the vaginal intercourse changed positions by flipping her from her back onto her stomach, removed his penis and then reinserted it from behind into her vagina she asked him to stop to make sure it was still on. I accept AS’s evidence on this as being both logical and in accordance with everyday human experience. She had good reason to be concerned because of the prior incident. I have significant concerns that many of Mr. Hill’s assertions in the evidence (some of which I have just outlined), relating to what is in my view the most important area and period of time of this trial were never put to AS, so that I would have her response to Mr. Hill’s accusations towards her and his characterization of her conduct. I do not accept Mr. Hill’s evidence respecting his seeking AS’s consent before he put his penis into her anus.

[201] AS testified after she told Mr. Hill to stop having vaginal intercourse with her when she saw the condom was gone, Mr. Hill said to her why did it matter as it had come off previously. Before she could respond AS testified Mr. Hill then stuck his penis into her anus. When she told him to stop he pushed it in farther and she told him to stop three more times but he did not and he only stopped when she was able to get out from under him. It is my view AS’s comment to Mr. Hill, which he agrees with, “What the fuck do you thinking you are doing?” puts a lie to Mr. Hill’s evidence about his asking if he can try anal and she said, “Yeah stick it in”. According to Mr. Hill, “the second his penis touched her butthole, she just bunched forward into the mattress and just started flipping out.” AS, according to Mr. Hill, was quite upset but he did not know what she was upset about. It does not make any sense why Mr. Hill did not know what AS was upset about, as on his evidence he had just received consent to try anal sex. I find AS was clearly upset because Allan Hill did not discuss anal intercourse with her and did not get her consent in advance. There was no planning, he just tried to stick it in on his own initiative.

[202] A further unlikely and bizarre part of Mr. Hill’s evidence relates to AS’s conduct after she was flipping out and asking him what he thought he was doing by trying to have anal sex with her. Mr. Hill testified that after AS flipped out she was yelling and screaming at him from the foot of the bed for an hour or at least forty five minutes that she wanted to continue having vaginal sexual intercourse because she was not done yet. It was his evidence that he told her the mood was ruined and he just wanted to go to bed. It was his evidence that he remained in her bedroom for this period of time repeatedly saying he was not in the mood and wanted to go to sleep until he left. AS testified after she asked what he thought he was doing, Mr. Hill got upset with her saying, “What the fuck is your problem, you don’t want to do anything I like to do.” Mr. Hill’s evidence on this is completely implausible and I do not accept it.

[203] AS’s conduct after she said Allan Hill anally sexually assaulted her is completely inconsistent with her wanting Mr. Hill to continue having sexual relations with her. I do not believe this occurred and I do not accept Mr. Hill’s evidence on this as it is completely inconsistent with someone who has flipped out because the person she was engaged in vaginal sex has suddenly stuck his penis into her anus without her consent. Mr. Hill’s evidence in my view is something he has made up, which makes absolutely no sense.

[204] It is my view that AS’s actions after this incident occurred also supports her evidence. AS went to her doctor’s office after the incident because of soreness and pain from what occurred and while speaking to the nurse practitioner she testified she broke down crying and then spent several hours there. She left her doctor’s office and went to Lakeridge Hospital to have a sexual assault kit performed. Based on the evidence in this trial I find there is a reasonable inference AS went to her doctor’s office during office hours on November 17, 2020, or at the latest the very next day, November 18, 2020. Mr. Capotosto argued I should find that nothing was found as a result of AS undergoing a sexual assault kit because no evidence was led by the Crown about the testing. The plain fact is I do not have any evidence respecting the sexual assault kit other than from AS and the fact she went to Lakeridge Hospital and subjected herself to that medical examination, which is intrusive and invasive of her personal privacy. It is my view her willingness to attend to have that testing performed supports her testimony that she was sexually assaulted by Allan Hill. It is another piece of evidence to add to my assessment of AS’s credibility. I am also aware that as a result of speaking to the nurse practitioner at her doctor’s pain clinic she not only went to have a sexual assault kit performed, and she also went very shortly after that to file a complaint with the police about Mr. Hill’s conduct towards her.

[205] Further, AS sought out JG because of an incident where Allan Hill had taken AS to pick up her son from his school. While they were waiting in his car, Mr. Hill saw JG and slid down in the driver’s seat to hide from her. When AS asked him why he was sliding down in his seat he advised that the woman on the sidewalk was his ex-girlfriend, JG, and he did not want her to see him. AS knew of JG because Mr. Hill had told her about JG and KW as two of his ex-girlfriends he described as being crazy and who had cheated on him. This was something Mr. Hill had done with each of these three women (he told JG about KW; he told JH about KW and JG and he told AS about JG and KW). On an earlier occasion Mr. Hill had questioned AS about whether a boy named J. attended the same school where he son went. She did not understand why Mr. Hill was asking about this boy J. at the time. Mr. Hill told her J. was the son of one of his ex-girlfriends. As a result of Mr. Hill sliding down in his seat AS made the connection between his earlier inquiry.

[206] AS also asked her son to point out J.’s mom at her son’s school sometime after Allan Hill had sexually assaulted her because she had made this connection that J. was the son of his ex-girlfriend, JG. I have described AS’s evidence respecting her approaching JG in paragraph 175 above. It is my view that AS’s action in contacting JG and joining the Facebook group chat also supports her credibility.

[207] At the end of Mr. Capotosto’s cross-examination of AS he suggested after Mr. Hill tried to have anal sex with her she was yelling and screaming at him for a long period of time demanding that he finish having sex with her as she was not done. It is my view her response to his suggestion is compelling and I believe truthful.

Q. I'm going to suggest that you were upset but you wanted to continue having sexual intercourse with Allan even after that?

A. That is incorrect.

Q. Allan did not want to continue having sexual intercourse with you?

A. I did not ask Allan to continue having sex with me after he just inserted his penis into my anus after I asked him to stop and definitely not after he did that, rolled over and then asked me, what the fuck is wrong with me because I did not enjoy him having anal sex with me. Three times, it took me three times for him to stop.

Q. But you continued arguing with him?

A. No, he got off and left after he said those things.

Q. I'm going to suggest that the time....

A. I'm sorry, my -- I -- from what I can remember my exact words were, I don't know what kind of other girls you've been dating or allow you to do those things so quickly but I am not that girl. Maybe in the future if I was dating somebody and in a long term relationship I might be open to certain things, but not after a week and I did not agree to let him insert his penis into my anus and it took him three times to stop. Took me three times to tell him to stop until he stopped and then rolled off of me, like he had done nothing wrong and then asked me what I -- what was wrong with me because I didn't want him doing those things to me. I was not comfortable with him doing those things to me. Three times, it took him. It took me three times for him to finally pull himself out.

Q. I'm suggesting there was a long argument there at the end?

A. There was not a long argument there, that was the argument and then he got dressed and left and messaged me when he got home saying thanks.

[208] Considering the totality of the evidence, for the reasons I have indicated I do not accept the evidence of Allan Hill denying AS’s allegation of his anally sexually assaulting her on November 16/17, 2020. Further, I am not left with any doubt by his evidence due to these same reasons and as a result of my assessment of his evidence in the context of the evidence as a whole of the other evidence which I do accept, that being the evidence of AS, which I accept as truthful and accurate that I have no doubt this sexual assault occurred and as a result I find Allan Hill guilty of the charge of sexual assault respecting AS.

Weight and Use to be made of Similar Fact Evidence

[209] I also rely upon my findings and discussion respecting whether there was advertent collusion between the three complainants as a result of the Facebook group chat they were part of at different points in time or whether inadvertent tainting occurred as a result of becoming aware of others who were alleging similar sexually assaultive conduct against Allan Hill. I determined and found there was no advertent collusion between the three complainants. This was as a result of my findings that the Crown had satisfied me on a balance of probabilities that JG, JH and AS had not colluded together and their individual stories were not inadvertently tainted as a result of their interaction together on the Facebook group chat. I rely upon my reasons set out in my Judgment admitting the Similar Fact Application, R. v. Hill, 2023 ONCJ 115, dated February 17, 2023. I adopt its reasons for the purposes of this judgment.

[210] It is my view that the evidence of each complainant (JG, JH and AS), which I have accepted for the reasons indicated above proves beyond a reasonable doubt Allan Hill’s guilt in respect of each count of sexual assault. The similar fact evidence of each complainant in my view reinforces the credibility the other complainants and is probative to the live and material issues of credibility of the complainants' accounts in relation to whether the offences occurred, the actus reus, and rebuttal of defences including denial and fabrication. I find that the evidence of each complainant bears a sufficient number of striking similarities which cannot be attributed to coincidence. In arriving at this conclusion I have considered the following circumstances and similarities between the three complainant’s accounts:

• All three women describe Allan Hill moving the relationship forward very quickly, a very early introduction to his daughter, and inviting them to move in with him;

• All three women describe becoming aware early in the relationship that Allan Hill had issues concerning his consumption of alcohol and that he used marijuana regularly;

• When Allan Hill is confronted about his drinking he becomes upset and confrontational;

• All three women describe discussions initiated by Allan Hill as to what sexual activities they are comfortable or uncomfortable participating in, for example, use of sex toys, anal intercourse;

• All three women advised Allan Hill they were not comfortable about certain sexual activities at an early point in the relationship and in particular, all three indicated they were not okay with anal sex, but maybe after the passage of time where the relationship had developed and further discussion and mutual agreement and preparation had occurred, they might be comfortable;

• All three women describe an occasion(s) where an argument occurred during the relationship, Allan Hill becomes upset and angry with each of the complainants, he makes offensive, pejorative comments against them, there is a breakup or breakdown in the relationship and then Allan Hill initiates the possibility of reconciliation;

• All three women describe during this attempt at reconciliation some form of consensual sexual activity occurs, during which Mr. Hill makes a derogatory comment and either flipped them onto their stomach from their back or if they were already on their stomach engaging in vaginal intercourse, he then engaged in anal intercourse without prior discussion or agreement, during which he grabbed the back of their neck and forced their face into the bed or pillow to prevent them from moving or stopping the anal intercourse from continuing; and

• All three women describe how despite saying “No” and repeatedly telling him to stop, he would continue until he had completed the act or they were able to get out from under him.

[211] I find the similarities outlined above provide a connectiveness, that rises above equivocal or generic detail, between the allegations of JG, JH and AS, which afford probative value on the issues identified.

[212] The evidence of each complainant is therefore admissible as evidence of other acts of discreditable conduct of the accused. I have weighed the probative value and determined that it outweighs any prejudicial effect. As I indicated it is my view the evidence of each complainant reinforces the credibility of the other complainant’s evidence and I consider it for that purpose.

Two Assault Charges Alleged by JG

[213] I have not addressed the two assault charges faces Mr. Hill respecting JG up to this point and I do so now. I am relying on my findings of credibility respecting JG and my assessment and findings of Allan Hill’s credibility referred to in detail above, as well as my assessment of each charge as set out below.

[214] The first allegation of assault involved Mr. Hill’s Chihuahua dog, which was described as a six month old puppy. Both JG and Allan Hill testified about an incident involving this little dog and their versions of what occurred could not be further apart.

[215] JG described an incident where she was in the living room of Mr. Hill’s house crouching down and cleaning up some dipping sauce from Pizza Pizza that had spilled on the floor. The dog was across the room walking by and Mr. Hill thought JG was abusing the dog. He came running into the living room and shoved his knee into JG’s back where her kidney is. He said to JG, “What the fuck are you doing?” and then yelled at her that she had hit the dog and that’s why the dog was barking. She described the dog being 10-15 feet away by the window. Mr. Hill then went into the garage after doing this to JG. This did not cause any bruises but she could feel it under her skin and she was peeing blood for two days. JG testified she had problems with kidney stones and Mr. Hill was aware of this.

[216] JG described not talking to him for at least a day but she continued residing in the house. She told him he had caused her to pee blood and she said he did apologize for that. She thought maybe he did think she had abused his dog so she decided to give it another shot.

[217] Mr. Hill denied any incident occurred where he kneed JG in her back where her kidney is. He described a completely different incident involving the dog, where he and JG were in the kitchen and his daughter and JG’s son were in the living room. He testified they were probably prepping a meal, although he could not recall, and they heard the dog yelping so he went into the living room. He testified he could tell by the look on his daughter’s face that something had happened. When he asked what was going on his daughter said that J. had been trying to pull the dog’s tongue out of its mouth. As a result J. got sent to his room and his X-box was taken away, as he was grounded for his actions. Mr. Hill said this incident was towards the end of their relationship.

[218] JG testified there never was an incident where it was alleged J. tried to rip Mr. Hill’s dog’s tongue out of its mouth. This never occurred and J. would not do anything like that to a dog. JG agreed there were occasions where J. was grounded and his use of his X-box were curtailed but this was never done for injuring the dog. As discussed earlier in my reasons, J.’s X-box was a source of friction for Mr. Hill and JG. Mr. Hill did not believe JG was stern or tough enough with J. and JG advised him J. was her son and she determined how she was going to discipline him.

[219] When the Crown was cross-examining Mr. Hill about his version of the dog incident and was asking whether J. had bite marks from grabbing the Chihuahua’s tongue, he conceded there were no bite marks. When the Crown asked if the dog had claws, Mr. Capotosto objected arguing relevance yet it was my view he had raised this version of events and Ms. Allan’s cross-examination was proper. Mr. Hill agreed to his awareness J. did not have any scratches. I also did not hear of any injury to the Chihuahua that required Mr. Hill to take the dog to a veterinarian.

[220] I have no supporting evidence respecting either version of events respecting this Chihuahua. JG testified she had a problem with kidney stones and that she was peeing blood for two days, yet she did not seek medical attention. Maybe her recounting of what she said occurred is true. Mr. Hill says it did not occur. Mr. Hill’s version is equally incredible and implausible but maybe it occurred. I am mindful of the admonishment of a trial not becoming a credibility contest between two witnesses; however, not being certain that something occurred leads to a conclusion of there being a reasonable doubt respecting this event. As a result, I must dismiss this charge of assault facing Allan Hill.

[221] The second charge of assault relates to an incident where it was alleged by JG that Mr. Hill took her cell phone because of his concern she was involved with someone else. JG testified he found a number of emails from former boyfriends from back in 2014 and 2015 on her cell phone. He became jealous of her and this was also a theme respecting some of the male persons who worked at her office. He kept her phone for four days looking through it for emails, texts and calls with these former boyfriends, until he finally gave it back to her as she had begged him to give it to her so she could get in contact with her son to find out when he was coming back from his father’s place to Mr. Hill’s house to be with her. This was in the middle of March 2020, the second week sometime. When J. came back to Mr. Hill’s house he could hear JG and Mr. Hill arguing and when J. came in to where they were Mr. Hill told him, “Your mommy is a whore.” JG testified her son came to her defence and said, “No, you’re wrong, my mommy’s not a whore, that’s really mean for you to say.” Mr. Hill stormed off angry and went into the garage.

[222] JG followed Mr. Hill into the garage and she indicated in-chief she was angry with him and she said to him, “ Why would you say that? You know we don’t fight in front of the kids.” She also told him, “What the fuck is wrong with you.” JG admitted she was not very nice to him for saying what he did to her son. While she was expressing her anger to him, Mr. Hill walked towards her in the garage and told her she was nothing but a whore and smacked her across her face with the back of his hand. His hand struck her on the right side of her bottom lip. She was standing when he did this and she lost her balance and fell to her knees. There was a cut on her bottom lip that was bleeding. She was shocked by what he did. She believed she bit down on her tongue when this happened and did not blame Mr. Hill for that injury.

[223] She went back into the house with Mr. Hill, who was throwing her clothes from the dresser onto the bed, which was a regular routine when he got mad at her or they had an argument. This time she packed her bags with her clothes and other belongings. She packed everything she could in her car and then left with her son. Mr. Hill would not let her take J.’s X-box when she was packing things up. It was this incident that JG testified caused her to pack up her belongings and move out of Mr. Hill’s house with her son, J.

[224] Mr. Hill testified in-chief he never called JG a whore and he never slapped her in the garage. He described JG as being loud, although she was never physical or violent or anything but she could be a “firecracker.” She would argue with him and it was usually over her son, J. Mr. Hill testified he never hit JG and this was not the reason she left the relationship.

[225] Mr. Hill describes a different reason for JG leaving and ending the relationship. He described a number of incidents involving J. and his daughter M. As a result Mr. Hill testified he gave her an ultimatum that she needed to get J. help or she had to leave because he could not have his daughter around J. He testified JG told him fine she was leaving and she started packing her stuff. Mr. Hill could not really recall when this ultimatum occurred, he thought it was the weekend, “but [he] can’t be certain on that.” He could not be certain if M. was there but 99 percent sure she was there. When asked if J. did something the day he gave JG the ultimatum, he testified “probably not that day but the night before….something probably happened the Friday night” He could not recall what the incident the night before was, “I can’t recollect what but there was something every day with J. so who knows.”

[226] During cross-examination Mr. Hill agreed he did not remember the incident that led to him giving JG the ultimatum but when the Crown started to press him on this two things occurred: the first was all of a sudden Mr. Hill said he was having trouble hearing Ms. Allan because he was very hard of hearing, he said he was deaf in one ear and he had perforated ear drums, which abruptly stopped the flow of the cross-examination. The second was he suddenly recalled the incident, which led to his ultimatum, after agreeing he did not remember what the incident was, and now saying it was the knife incident. When he was cross-examined further he conceded he was “assuming it was because of that….So it was probably over the knife incident.” In my view these sudden changes in his evidence, which occurred frequently,[^21] lead me to believe Mr. Hill was often making things up as he was testifying. It is my view this detrimentally affected his credibility and reliability.

[227] Another change in his evidence from chief to cross related to his description of J. kicking, punching, swearing and pushing his mother, JG, and that J. did the same things to his daughter, M. In cross he would not agree with his evidence in-chief and was only prepared to say J. bullied his daughter without providing any descriptors of what J. was supposed to have done towards M. Later in cross-examination Mr. Hill said there may have been a few scuffles but J. would not beat M. up in the corner, “it wasn’t like abuse towards her”, “it was like brother and sister – because they got – they were close right off the bat. They used to play video games.” It is my view this evidence was completely inconsistent with Mr. Hill’s main theme that J. was constantly misbehaving towards his daughter and that M. was terrified of J.

[228] The knife incident is another occasion where Mr. Hill’s evidence was fluid and changeable. In-chief he testified the knife incident occurred when J. and M. were “horsing around in the kitchen which was all fun and games and all just playing around” to J. pulling a butcher knife that he saw with his own eyes, J. trapped his daughter in the corner of the kitchen, holding a butcher knife, with a 12 inch blade, the biggest in the kitchen, very close to her. He testified he de-escalated the situation and took the knife away. This happened before the incident he described with the dog’s tongue, midway through the relationship about a month and a half in. The relationship ended mid-March, which would be a month and a half after the knife incident; however, in cross, Mr. Hill said the knife incident probably happened the night before he gave JG the ultimatum. Again, Mr. Hill’s evidence constantly changed and in my view it was often inconsistent with what he originally testified to and what he later said in cross-examination.

[229] JG agreed there were disagreements between Mr. Hill and her respecting her son J. and how she disciplined him. She agreed he may very well have given her an ultimatum at different times but he did not give her an ultimatum on the day she decided to end the relationship because of him slapping her. I found JG to be a credible witness throughout her evidence. She did not become argumentative and she was consistent in her evidence throughout in-chief and in cross-examination. She also was fair when suggestions were put to her respecting things that Mr. Hill may have said to her concerning J. and his X-box. She was prepared to concede things put to her by the defence. Her evidence respecting the X-box never changed. It was Mr. Hill’s evidence that he confronted JG about their relationship was ending because of the X-box. At that point she was holding the X-box and he testified she said, “You want to see how much this X-box means to me” and she then smashed it into “a million pieces” by throwing it on the ground.

[230] When JG was confronted with Mr. Hill’s allegation that she smashed the X-box, her response to Mr. Capotosto was that Mr. Hill was videotaping her friend and her when they went to his house to get the X-box, this was her response: “No, I asked Allan for the X-box when I was leaving the house that day. He said, ‘No, J. doesn’t deserve it, it’s M.’s and then I asked for – him again when I went to go get my stuff, which he probably has on video.” JG had no idea that Allan Hill would later testify that the video he took of JG and her friend was destroyed by the police when they had possession of his phone from seizing it before they returned it, yet she told Mr. Capotosto if the video Mr. Hill took of her and her friend was played one would see her asking for the X-box to be returned. She denied smashing it and in my view Mr. Hill’s evidence respecting JG destroying her son’s X-box makes no sense and is completely unbelievable given JG’s son’s feelings towards this video gaming system, which according JG was quite expensive. I do not accept Allan Hill’s evidence respecting JG smashing her son’s X-box. In my view this is completely absurd and implausible.

[231] I do not accept Mr. Hill’s evidence respecting his denial of slapping JG and his explanation for their breakup. I find his evidence surrounding his explanation is inconsistent on many different levels and as a result I find he is not credible. Further, his frequent indication of not recalling things but later when challenged in cross suddenly remembering them I find his evidence is not reliable. Considering his evidence with the totality of the evidence relating to this charge his evidence does not leave me with a reasonable doubt. I accept the evidence of JG as to the reason for her breakup with Mr. Hill, which involved him slapping her with the back of his hand in the garage after he had made a derogatory remark about JG to her son. I have no doubt that Mr. Hill had some issues with JG’s son and how she disciplined him, although once again his evidence respecting J.’s behaviour towards his daughter was inconsistent and contradictory when one compared his chief and cross. JG’s evidence was given in a straightforward, consistent manner. She was responsive and fair to the questions she was asked in chief and cross. She did not attempt to embellish her evidence and was not argumentative with counsel.

[232] Considering the totality of the evidence I find the Crown has proven this charge of assault beyond a reasonable doubt and there will be a finding of guilty.

Conclusion

[233] I have found Allan Hill guilty of the following offences

(a) Count 1: sexual assault in respect of JG;

(b) Count 3: assault of JG

(c) Count 4: sexual assault of JH; and

(d) Count 5: sexual assault of AS.

[234] Count 2 is dismissed.

Released: March 3, 2023

Signed: Justice Peter C. West

[^1]: In my Similar Fact Judgment, dated February 17, 2023, at paragraph 80, I discussed Exhibit 1, which were the text messages filed by Mr. Capotosto between JH and Michelle C. One of the issues raised by the defence related to JH telling the police in her video-taped interview that she told Michelle C. that Allan Hill had “forced himself on her.” In the text messages presented by the defence this is not something that was present; however, when Mr. Capotosto presented the text messages to JH he referred to them as the “text messages we have”, which concerned me because as I indicated these text messages were not authenticated in any way by the individual who received them through Facebook, as being all of the text messages she received from JH. Further, it was never put to JH that the text messages in Exhibit 1 were in fact all of the texts JH and Michelle C. exchanged.

[^2]: AS transcript, September 9, 2022, at pp. 125.

[^3]: Ibid., pp. 125-126.

[^4]: Allan Hill transcript, September 13, 2022, at pp. 62-66.

[^5]: Allan Hill transcript, September 13, 2022, at pp. 67-68.

[^6]: Allan Hill transcript, September 28, 2022, at pp. 46-47.

[^7]: November 4, 2020 was a Wednesday.

[^8]: Allan Hill transcript, September 13, 2022, at pp. 80-81.

[^9]: Allan Hill transcript, September 28, 2022, at pp. 62-63.

[^10]: Judgment on Similar Fact Application by Crown, February 17, 2023.

[^11]: Allan Hill transcript, September 28, 2022, at pp. 46-47.

[^12]: Allan Hill transcript, September 28, 2022, pp. 47-48.

[^13]: Allan Hill Transcript, September 28, 2022, p. 5.

[^14]: Allan Hill Transcript, September 13, 2022, pp. 67-68.

[^15]: Allan Hill Transcript, September 28, 2022, pp. 6-

[^16]: Allan Hill Transcript, September 28, 2022, pp. 8-9.

[^17]: Allan Hill Transcript, September 28, 2022, pp. 30-31.

[^18]: Allan Hill Transcript, September 13, 2022, p. 46.

[^19]: All Hill Transcript, September 13, 2022, at p. 69.

[^20]: In my Similar Fact Judgment, dated February 17, 2023, at paragraph 101, I discussed the Crown’s submission that this defence theory that JG and JH upon hearing AS’s story of Allan Hill forcing anal intercourse on her they then concocted their own allegation of a similar sexual assault required acceptance of AS’s allegation of Allan Hill anally raping her as being accurate and truthful.

[^21]: See my discussion and assessment of Allan Hill’s evidence above at paragraphs 136-165.