WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

Ontario Court of Justice

Date: 2023 06 02 Court File No.: Pembroke 21-0639

Between:

HIS MAJESTY THE KING

— AND —

JG

Before: Justice J.R. RICHARDSON

Heard on: December 13, 14, 2022; February 1, 3, 2023 Defence Submissions Received: February 13, 2023 Crown Submissions Received: March 13, 2023 Defence Reply Submissions Received: April 3, 2023 Reasons for Judgment released on: June 2, 2023

Counsel: Caitlin Downing, for the Crown Kathleen Kealey, for the accused

RICHARDSON J.:

Introduction

[1] JG is charged with one count of sexual assault between February 21 and 23, 2021. The complainant CG is his former spouse.

[2] At the outset of the trial, the parties advised that date, jurisdiction, identity and the voluntariness of the JG’s statement to the police are admitted.

[3] This case involves the assessment of credibility and reliability and the W.(D.) formulation.

Evidence of CG

[4] CG is 32 years of age. She works as a Personal Support Worker. She and JG started dating in August 2011. They married in August 2013. They have one child who is now six years of age. At the time of the incidents, JG was a member of the Canadian Forces posted to Garrison Petawawa.

[5] The incidents in question happened between February 21 and 23, 2021. After the incidents, JG and CG continued to live “separate and apart under the same roof” until May 10, 2021. CG indicated that the actual separation date was February 23, 2021. She remembered this because they did their income tax the day before.

Summer 2020 – JG’s First Surgery and the Parties’ Separation

[6] The parties first experienced trouble in their marriage in the summer of 2020. In July 2020, the accused had surgery. As a result of the surgery, the accused had difficulty climbing the stairs in their home. CG advised that she slept in her bedroom in the home’s upstairs and the accused slept on a couch in the living room.

[7] In August 2020 they separated. CG and the child moved to Cornwall. She indicated that JG was very emotional about this, reacted in anger and tried to convince her to stay. They were separated for about a month. CG said that they “went their separate ways and started seeing other people”.

Late August 2020 -- Reconciliation

[8] CG moved back on August 27, 2020. She said that they wanted to try to work it out because of their son. She stopped seeing the other person she had been seeing.

[9] She had a conversation with JG in which he told her that he was also seeing someone else.

[10] CG decided to return after this conversation. She convinced him to work on things in the relationship.

[11] After she moved back in, CG slept in their bed and JG continued to sleep on the couch. CG indicated that they tried to sleep together but she was not ready to make “that kind of commitment” because she still thought they had things to work on.

December 2020 – “Psychosis Episode” and Another Round of Surgery

[12] JG had another round of surgery in December 2020. The sleeping routine remained the same except JG would sleep on another couch in the basement.

[13] She recalled that before his surgery JG decided to stop taking his anxiety medication. She did not know that he had stopped taking it. She said that she “woke up one morning and he was very proud of himself.” He said, “Go look at the basement and see what I did.” She went downstairs and saw writing all over the wall in his “man room.” There was a lot of writing about crypto-currency.

[14] CG said that it was odd and she was pretty shaken up by it. She called the crisis line. They told her that JG was having “a psychosis episode”. She convinced him to go to the hospital after their son got home from school. The hospital admitted JG overnight. He was released the next day.

[15] CG recalled that this scared and terrified her. She recalled shaking. She was afraid for her son’s safety as well as her own.

[16] After that incident, JG went back on his medication for a little bit.

[17] She believes that he finally stopped taking it by February 2021. She recalled that at some point he said, “I’m not taking this anymore.” She did not agree with this decision. She knew he had experienced childhood trauma. She said that he ignored her concerns and didn’t care about her opinion.

[18] After his December surgery, JG used hydromorphone and Tylenol for about a month. By February 2021, when the incidents took place, he had stopped using. She recalled that he used crutches after the surgery but she could not remember if he was still using crutches when the incidents took place in February 2021. She recalled that the accused could “hop or hobble around”.

The First Incident

[19] CG recalled that at some point during the day on February 21, 2021 JG decided that he did not want to be together any longer. CG said that for the remainder of the day she was in her own thoughts. She took care of their son. At about 7:00 she went to bed.

[20] At midnight or 1 am, she went downstairs to speak to JG about trying to work things out. He was in the living room playing video games. He seemed like he was in a good mood but was largely ignoring her. JG told her that he did not think that they were going to be able to work things out. This shocked CG. She did not know exactly what to think. She recalled crying. JG tried to comfort her by offering a hug. She pulled away. She did not recall anything else about the conversation.

[21] Defence counsel asked CG with respect to her evidence-in-chief that this discussion took place in the living room (on the main floor of the residence). Defence counsel suggested that CG told police that JG was in the basement during this conversation. CG stated that she remembered having one conversation in the basement with JG about breaking up, but it was not this conversation. She said that during this period JG would spend most of the day playing video games in the living room. At night he would go sleep on the couch in the basement.

[22] CG encouraged JG to come up to the bedroom. She believed that the first step in their trying to work things out was for him to “come back to bed”. She said that he agreed and shut off his video games and television.

[23] In cross-examination, she said that her expectation when she had this conversation with JG was to sleep in the same bed together to have a talk.

[24] Once in the bedroom, they got ready for bed. She was not wearing any nightclothes because she gets too hot. She recalled that she usually slept with the window open. She said that JG wasn’t wearing any clothes either.

[25] She said that she tried to get him to talk to her but he “pretty much shut me down” in the conversation. She said that her mood was neutral, and she was numb. She said that she was facing away from him, towards the wall. He was behind her laying on his side.

[26] CG was inconsistent about whether JG asked to have sex. In court, she indicated that there was no conversation about it. Defence counsel put to her that she told the police that JG asked to have sex when she gave her statement [1]. She did not remember saying this to the police but indicated that she agreed with the statement. When defence counsel asked her what she meant by this, she stated, “He asked to have sex and I said “no”. I wasn’t ready and I wanted to work on things.” This was very different from what she initially said.

[27] CG stated that at some point between 1:00 and 1:30, JG “tried to force” her “to do sexual things”. He did not say anything to her. He started fondling her breasts and buttocks. He grabbed on to her hips and rolled her on her back.

[28] When asked how she reacted, CG said “I believe I told him to stop.” She said that her tone of voice was annoyed and angry. It was loud enough for him to hear her. She did not believe that it was the right time for sex. She stated that she was not ready for that kind of commitment. She stated that they had not had sex since the previous June or July. She said that she told him to stop once or twice before he turned her on to her back.

[29] She did not believe that he said anything in response to her. “He just continued,” she said.

[30] She stated that he grabbed her right hip with his right arm. She believed that he was laying on his left arm. She told me that JG is “pretty strong”. When asked what she did, she stated, “I was in shock”.

[31] Once he turned her on her back, he got on top of her. His knees were slightly on hers. He was pushing his weight down. She could feel the weight of him on her shin and her kneecaps. She said that he held her down with his legs.

[32] He held her wrists with his hands. He started having vaginal intercourse with her.

[33] She tried to tell him to stop and get off. She said that she told him this a few times.

[34] When asked if she did anything, she said, “I might have tried to push my hands off him.” She stated again that he was very strong and she recalled that when they used to playfight, she was never able to push him off her.

[35] When asked if JG said anything, CG recalled that he said, “Oh it’s been so long.”

[36] She said, “I felt like I was stuck there. I couldn’t move or do anything. He just continued to rape me.”

[37] She stated that she was not “doing anything sexual in exchange. I was just like laying there.”

[38] She stated that he ejaculated inside her vagina.

[39] After he ejaculated, he got off her. They both went into the bathroom and washed up. She recalled that he washed in the sink. She washed in the shower. There was no discussion in the bathroom. She said that they were in the bathroom for about three to five minutes.

[40] They then went back to bed. She lay in bed and tried to sleep. She found it impossible to sleep because her “thoughts were running amuck”. She was in the same position. He was behind her.

[41] She tried to get him to talk again but he avoided the conversation. She recalled that he was annoyed that she was trying to talk to him again.

[42] Later in her evidence, the Crown asked CG if there was “any kissing”. She said that there was a little bit at the beginning. “I thought that was all there was going to be so I was ok with that.”

[43] JG initiated the kissing. The kissing took place before the intercourse but after he had fondled her and she was on her back. She recalled that he kissed her on the lips. She kissed him back because she thought that was all that was going to happen. She said that there were just a few kisses on the lips. She demonstrated short kisses. There was “no tongue or anything.” She believed that her hands were on his face.

The Second Incident

[44] Then between 5:00 and 5:30, he forced her to have sex again. He fondled her breasts and buttocks. He forced her hand on to his penis and “indicated with stroking what he wanted and expected.” After that he removed his hands. She continued for two or three seconds and then she removed her hand. She said he reached over with his right hand and grabbed her right breast.

[45] She recalled that he did not say anything. She did not expect this to happen. She said, “I was still numb from the first time. I think I swiped his hand and tried to push his hand away. I probably told him to stop.” She stated that there was no discussion about having sex prior to the accused initiating the touching.

[46] She pulled away and shoved herself toward the wall. After about thirty seconds to a minute, he grabbed her with his right hand, rolled her on her back, climbed on top of her and held her hands down by her wrists.

[47] She did nothing. Everything happened very quickly. She did not say anything.

[48] Ultimately, she said that she told him to “stop” three times. He did not respond and continued.

[49] She recalled that prior to ejaculating, he told her he wanted to ejaculate on her face. She told him, “Absolutely not.” He ended up ejaculating on her chest.

[50] CG was inconsistent about where he ejaculated. When she gave her statement to the police, she told them that he ejaculated while he was in her vagina.

[51] She tried once to shove him off. She repeated that he was stronger than she was. She recalled that she tried to push her knees up in a forward motion about half-way through this incident. He did not respond and just ignored her.

[52] In cross-examination CG stated that because of the way he positioned her knees on top of his, there is no way that she could close her legs or prevent penetration.

[53] In cross-examination, CG admitted that she told the police when she gave her statement that he forced her hand to stroke his penis first and then started touching her (in other words, the reverse of what she testified to in court). “I can’t always remember what happened when.”, she stated. “Both incidents happened.”

[54] She stated that the second incident lasted about five minutes.

[55] After it was over, she could not remember if she went to the bathroom and washed or whether she wiped the ejaculate off with a cloth. She does not remember what he did.

[56] She said that she tried to go back to sleep. She stayed awake until it was time to take their son to the bus-stop at 7:30.

[57] Later that day, they went and did their income tax. She recalled that they left the place where they did their income tax at about 11:00.

[58] Defence counsel asked CG whether at the time she characterized the incident as rape. “I didn't know what to think after the second incident. I was in shock and my thoughts were racing.”, she said.

[59] In cross-examination, CG also denied that she initiated the sexual activity. “That definitely did not happen.”, she said. She denied that JG asked her to have sex and she agreed. She denied initiating the second incident by fondling JG.

[60] She did not recall whether JG told her that he had pain in his leg or asked to switch positions.

[61] In cross-examination, she did not remember whether there was any mention of the use of a vibrator. When she testified later in the proceedings (still in cross-examination), she stated that she thought about the use of the vibrator on her way home after giving her evidence the previous day. She stated that JG asked if she wanted to use a vibrator and she said no. She repeated that there was no use of a vibrator.

[62] In re-examination, the Crown asked when the discussion about the vibrator took place. CG said that it might have been prior to the first incident or prior to the second incident. “I know there was a comment or question asked about it.”, she said. The Crown asked her where she was when the conversation took place. She said that she was pinned down and it was in the midst of the rape. She added that the vibrator was broken. She stated that the discussion about the vibrator took place when he first started penetrating her. The Crown asked CG if she remembered what words JG used. She stated, “If I wanted to get the vibrator or the toy. Something like that.”

[63] She did not remember whether JG asked her to switch positions to “doggie style”. Later in re-examination CG stated that “it was very possible” that JG asked to switch positions but they did not switch positions. She stated that she was never comfortable having sex with JG in anything but the missionary position.

[64] She denied wrapping her legs around him during the sex. She denied assisting him to insert his penis into her vagina.

[65] She stated that she did not voluntarily stroke his penis during the second incident. She denied that she told JG that she wanted to have sex again and stated, “I’ve missed you so much.” She proclaimed, “I did not indicate wanting sex either the first or second time.”.

[66] With respect to ejaculation, CG repeated that JG asked if he could ejaculate on her face. She stated, “I said no because it is disgusting.” She stated that he could have ejaculated on her stomach. She disagreed that he did that after asking her where to ejaculate. “I didn’t agree to that.”.

The Discussion of February 25

[67] They did not discuss the incidents until February 25. That day, JG decided to “end things.” They discussed why he wanted to end the relationship. During that conversation she stated, “Why did you use me for sex then?”. He replied, “That was me trying to fix the marriage.” She could not remember whether she said anything in response to this.

[68] The Crown asked CG why, in that conversation, she used the word “sex” instead of “rape” or “sexual assault.” CG stated that she didn’t know that it was a sexual assault until she was speaking to the police. In cross-examination she said that she always thought that this was a “rape”. She agreed that she used the words “Why did you use me for sex?”.

[69] Defence counsel suggested to CG that she used the words, “Why did you use me for sex?” because she felt betrayed that after engaging in consensual sex, he wanted to end the relationship. “I did not feel betrayed and I did not consent to sexual intercourse”, CG replied.

[70] Defence counsel asked CG whether she felt that, in general, during the relationship, she was able to voice her opinion. She stated that she felt ignored a lot. She stated that she sometimes felt like expressing her feelings was futile. Defence counsel put to her a portion of her statement where she stated that JG always did what he wanted. She then suggested to CG that given her evidence in court, he didn’t “always do what he wanted.” CG stated that by “always” she did not mean 100%. Although there is an inconsistency here, I do not believe much turns on it.

[71] CG stated that it was not a surprise to her that JG decided to end the relationship.

[72] Defence counsel referred CG to her statement to the police where she indicated that the date of separation was February 25, not February 23. CG stated that this was her suggestion because they did their taxes on February 23 wherein they indicated that they were still together. This is also not a major inconsistency.

The Report to the Police in May 2021

[73] CG gave a statement to the police in May after JG left their son unattended at the house. She did not know about this until she was driving home. Her neighbours told her that they saw JG leaving the house without their son. The neighbours said that he was gone for a while.

[74] She went to the police because she was looking for protection for her and her son. She did not intend to report the sexual assault but, “…everything came out once I started writing the statement.”

[75] She said that she went to the police because she didn’t feel that she and her son were safe. She had the December “psychosis incident” in the back of her mind. She said once she was at the police station, the police told her that she could not go back to the residence. She said she was distraught because all she and her son had were the clothes on their backs.

[76] CG agreed that JG would take their son when he went to visit his new girlfriend, KM. She indicated that she tried to be cordial when it came to parenting decisions, noting that “we were still under the same roof” and “we had a child around.” She stated that she didn’t agree to the boy going along right away and she wanted to wait until the summer. She said that JG did not like this. CG stated that one weekend, while she was working at Walmart, he told her did not care, and he took the boy with him to see KM. She stated that there was no custody order in place.

[77] Between the incidents in February and going to the police in May, CG stated that she did not take steps to avoid JG. Defence counsel suggested to her that she went to bed early to avoid him. She stated, “I don’t think so. I just went to bed.” Defence counsel then referred CG to page 72 of her second statement to the police, at which point she admitted to going to bed early to avoid JG. She agreed that at this point in February, she was trying to avoid JG.

[78] CG agreed that the plan was for their son to reside with CG’s parents while CG finished up her schooling over the approaching summer. She was required to have 325 hours of work completed by August. The boy was supposed to go with her mother and father while that was taking place. She said that JG had no difficulty with this arrangement. She denied that JG volunteered that the boy could stay with JG’s parents.

[79] CG confirmed that she reported the incidents in question to the police on May 8, 2021. She reported after she had contacted a Padre [2]. She recalled that she had contacted the Padre from the parking lot of the Pembroke Mall. She called the Padre to seek advice what to do. The Padre told her to call the police and call the Children’s Aid Society or else she would look bad as a mom. CG denied that she did not intend to report what took place to the police until the Padre told her to. “I intended to go to the police”, she stated. “I just wanted other advice.”

[80] In cross-examination, defence counsel asked CG whether the “trigger” for her going in and reporting to the police was the incident where JG left their son alone. She stated, “At that point in time there was a lot of stuff but that for me was the final straw.”

[81] Defence counsel asked CG if she asked JG for an explanation about leaving the child. CG stated that when she confronted him about it, he tried to deny it and then stated that he had “only” gone to get gas.

[82] She stated that he did not tell her that he was going to leave the child there. She stated that he asked her if it was okay for him to go to KM’s and watch the child on the video. CG stated that she told him “no”, and then messaged a group chat with her neighbours. She asked them to make sure that he did not leave. She stated that was when she found out that he had left earlier without taking the boy with him.

[83] CG also stated that a neighbour called the police. When she spoke with the police, CG told them that she thought that JG was going to North Bay. She denied that she was trying to get JG in trouble. She stated that she knew that he was required by the military to stay within a certain distance of the base due to the COVID-19 emergency.

[84] Defence counsel asked CG if she had previously promised that she would never disclose that JG was in North Bay to the military. She indicated that she communicated with JG by text that if asked, she would have said that he was “out of town”. She added that this was not in relation to the same incident that she ultimately reported to police on May 8.

[85] Defence counsel asked CG about her report that JG had been physically abusing their son by slapping him on the hands for chewing his fingernails. She recalled that the child had a hang nail which became infected. They took him to the hospital and he was prescribed an antibiotic. A couple of weeks later, she reported that she heard yelling and a “smack”. She walked in and asked what was going on. She recalled that she heard JG tell their child, “If you don’t stop chewing your nails, I’m going to have to start slapping your hand. Mommy will slap your hand.” CG stated that she said “No, I’m sorry I don’t abuse my child.”

[86] CG agreed that she did not go to the police about this incident. She explained that she had nowhere else to go and no choice but to stay in the house. She stated that, “There were a lot of incidents where things happened and I was scared to leave because I didn’t know what was going to happen. When I spoke to the Padre, I felt like I had to report it.”

[87] Defence counsel asked CG if she reported to the police that JG yelled and screamed at their son a lot. CG admitted this and stated that when she confronted him, JG accused her of being the one who called the police. She stated that JG did not believe her when she told him that it was someone else. She stated that his eyes “went pretty dark”. “I felt threatened”, she said.

[88] CG agreed that she complained to the police that JG was taking their son to see KM. She agreed that his decision to do so was not a criminal offence. She agreed that she told the police that JG never listened to anything she said, never respected her as a person and never respected her as a mother. CG stated that the word “never” was an overstatement, but she generally felt that way.

[89] Ultimately, she agreed that there have been numerous times since their separation when they have been able to work together to co-parent their son.

[90] Defence counsel suggested to CG that when she described the incidents in court, she was clear that JG used force. She suggested that “using force” was not the same as “manipulate”. JG agreed. With respect to the words that she used to describe the two sexual incidents when she went to the police, CG agreed that she used the word “manipulate” when she told the police about the sex. In her initial statement, CG stated:

In February, on the 22nd & 23rd, 2021, he manipulated me into sexual activities but then he ended the marriage February 23rd & claimed the sexual activities as him “trying” to fix the marriage. [3]

[91] When this was brought to her attention, CG stated that she made the wrong choice of words. “I don’t always know the very meanings of words in all different forms.” CG denied that she knew when she gave her statement manipulation and force were not the same. She explained this by stating that, “I learned about manipulation and abuse and a lot of different terms of abuse while I was going through school”. She stated that “manipulate” was not a word that she normally used. She also agreed with counsel that when the police officers asked her about it, she meant “force”.

[92] In re-examination about her use of the word “manipulate,” CG stated that her definition of “manipulate” was “someone who tricks you into doing something you don’t realize is happening at that moment.” The Crown further asked why she phrased it that way. CG stated that she had a lot of things going on. She did not understand. She was taking a college course, and she did not understand that exact meaning of the words that she was using. She stated “I did not know what word to use. I was in a vulnerable kind of moment.” The Crown asked, “Did you feel like he tricked you into having sex?” CG replied, “No. When I thought about it, it was definitely rape. If it wasn't I would not have gone to the police and made such a statement.”

[93] Despite this, CG’s evidence in cross was clear that she did not intend to report the sexual incidents to the police when she went there. She stated, “Not at first. Then I decided to go with it.”

Sleeping Alone and the Lock on the Bedroom Door

[94] Defence counsel suggested to CG that the decision to sleep alone was because she was not ready. CG disagreed. She stated that the decision to sleep separately after the surgery was a mutual decision.

[95] She agreed that there were a few occasions that JG asked her if he could come back to the bedroom. She said that she told him that she was not ready and he did not feel like he was making changes to the way that he was acting. She stated that she was also concerned that he would hurt himself or his wounds from his surgery would not heal and he would require further surgery.

[96] Between July 2020 and February 21, 2021, there were times that JG tried to come into the bedroom but CG always had a lock on the door. She said that he was “trying to make amends in the relationship and she was not having it because she did not notice any changes.” Despite this, CG denied intentionally locking him out of the bedroom. She stated that she felt safer with the door locked.

[97] She did not prevent him from accessing the bedroom to retrieve his property at other times - just at night.

Was He Still Having Difficulty Moving his Legs in February 2021?

[98] CG confirmed that JG was mobile and not using his crutches by February 2021. She did not recall that he ever complained about putting weight on his leg.

Family Court Proceedings

[99] CG agreed that JG and she are currently embroiled in Family Court proceedings. Those proceedings were launched in June of 2021. She stated that she was seeking child support, sole custody and supervised parenting. She agreed that the week prior to giving her evidence in this case was the first time that there was a request for spousal support. Up to that point, she had not sought it. She indicated that she recently changed lawyers. Her first lawyer stated that he was going to be bringing a claim for spousal support but did not. Her new lawyer has now brought that claim. She stated that her decision to change lawyers had nothing to do with this case.

JG’s Evidence

[100] JG testified in his own defence.

[101] JG is 34 years of age. He stated that he had no health issues. He stated that he was previously diagnosed with General Anxiety Disorder. He is now living near North Bay, Ontario. He works as a garbage and recycling collector.

[102] In his prior employment, he was a member of the Canadian Forces.

[103] He is now engaged to KM. He lives with her and her three children. They have been together since March 4, 2021.

[104] He is currently in the process of finalizing his separation to CG. CG and he have one child. He sees that child every second weekend. He drives back and forth from the North Bay area to Cornwall to see his child.

[105] He pays child support.

[106] He stated that CG and he married in August 2013. They separated in February 2021. He decided to separate. He stated that he first told CG that he wanted to separate on February 20 or 21.

[107] He stated that CG initiated their prior separation in August 2020. She ended up going to live at her parent’s place in Cornwall. He stated that this took him aback. He had surgery on July 27 and her decision to separate left him at home alone. He recalled going off his pain medication to assist with the separation by driving to Cornwall. He stated that CG also initiated their reconciliation later in August.

[108] There was talk of separating again in October 2020 but that did not materialize.

[109] After his surgery, he slept on the couch in the living room. He stayed there until he moved to the basement in February 2021. Before the surgery, he would sleep upstairs in the master bedroom with CG. He stated that there may have been the odd time when he resumed sleeping in the master bedroom but he did not fully resume sleeping there. “She said she wasn’t ready for that commitment at the time so I stayed back on the couch.”

[110] In December 2020, he had to have another surgery on the same leg. He described his surgery as a “femoral realignment.” He stated that in December, they had to go back in and remove a plate and add two more plates to his leg. He recalled that the surgery took place on December 18 or 20.

[111] With respect to sleeping on the couch, he stated that once he had recovered from his surgery enough to go up and down the stairs, he did not understand why he could not use the bed upstairs, other than CG’s discomfort.

[112] On February 19 or 20, he told CG that he “couldn’t do the marriage anymore.” He stated that he felt like they had grown apart. He also believed that she was still involved with another person. He recalled that she seemed taken aback when he told her. She was confused. He was not sure if she was relieved.

[113] He recalled that on the night of the incidents, she came down the stairs. He was on the couch in the living room. He was playing video games. She said that she wanted to talk things through. He did not recall what she actually said. He recalled that the conversation lasted about ten minutes. At the conclusion of the conversation, she asked if he wanted to come to bed.

[114] CG then went upstairs. He turned off his TV and his video game. He went upstairs. CG was in bed. She was nude. He proceeded to get undressed so that he was also nude. He climbed into bed.

[115] He recalled that he was laying on his right side facing the outside of the bed. She tried to talk to him about their marriage. She wanted to understand why he did not want to be in the marriage anymore. He told her that it was late. He asked if they could talk about it tomorrow.

[116] She persisted. At this point he turned on his back. She said that she missed him. She told him that she did not want their son to grow up in a broken home. She told him that she wanted to fix things.

[117] He recalled that they started kissing. She started touching him and he started touching her. He said, “Do you want to have sex?” She said, “Yes.” At this point, he climbed on top of her. She put her legs around his hips. She inserted his penis in her vagina. She grabbed it with her right hand.

[118] As they were having intercourse, his leg got sore and he asked to switch to doggie style. She agreed and grabbed his penis and inserted it into her vagina. He said that the pressure on his leg was unbearable. He asked to revert to the missionary position. They did and they continued having intercourse. He ejaculated inside her vagina. He went to get toilet paper to clean up. She went into the tub or the shower to do the same. He then went back to the bedroom and lay in the bed. She followed suit.

[119] He went to sleep. He fell asleep on his right side.

[120] He woke up to CG touching his testicles and stroking his penis. He asked her what was going on. She told him, “I missed you so much.” He asked her if she wanted to have sex again. She said, “Yeah, I do.” He asked her if she wanted the vibrator. She indicated that she did. He gave her the vibrator and she started to use it on herself. They kissed. She orgasmed. They had sex in the missionary position. He asked her if he could “give her a facial.” She said no and told him that was disgusting. He asked her where he should ejaculate. She told him to ejaculate on her stomach. During this encounter, the sex was all in the missionary position. She wrapped her legs around his hips.

[121] After he ejaculated, he went and got some toilet paper and gave it to her. He then returned to the bathroom. She also came into the bathroom. They cleaned up and then they returned to the bed.

[122] He believed that the first incident took place at about 12:30. The second incident took place at “five-ish”.

[123] He agreed that some details of the encounters are a little vague in his head.

[124] He stated that he was certain that he asked CG to have sex because he always did.

[125] He recalled that later that day they ended up going to do their taxes. There was no other discussion of separation until the day after when he called it off again. He stated that he had suspicions that she was still emotionally connected to another man. Accordingly, he could not remain in the marriage. He recalled that her reaction was “kinda shocked but also relieved at the same time.”

[126] He recalled that she told him, “You’re just using me for sex.” He told her that was not the case. He accused her of still being emotionally connected to another man.

[127] He stated that they continued to live in the matrimonial home until May 2021.

[128] He recalled that in April 2021, KM came to his house to take him to Ottawa for a vasectomy. He stated that CG was not fond of this idea.

[129] He recalled that there was conflict concerning their son in May which led to their separation. He stated that he left the residence for approximately ten minutes to go get gas in his vehicle. He had plans to go visit KM later in the weekend. He decided to go to the gas station. He intended to watch the baby camera on his phone. The boy was sound asleep. He recalled telling CG that he was going to watch the baby camera while he left to go to the North Bay area. He stated despite telling CG this, he did not leave the residence. He recalled that she arrived home at 9:30 or 9:45 that night. He was in his vehicle. He did not go to the North Bay area that weekend.

[130] He denied ever hitting the child on the hand. He stated that the boy frequently bit his nails. He recalled the boy had a hang nail and an infection. He stated that he removed the boy’s hands from his mouth.

[131] He denied preventing CG from leaving a room or leaving the residence. He denied ever threatening CG.

[132] He recalled that he was arrested on May 25 or 26. He was working half days due to his leg. His boss called as he was on his way home. His boss told him that the Sergeant Major wanted to see him. He surmised that the Sergeant Major wanted to see him because he was going to lose an extra allowance that soldiers in the field received and he needed to sign some paperwork about that.

[133] When he arrived at the Sergeant Major’s office, there were five police officers present. They arrested him for sexual assault. He said, “I was in shock and “mind blown”. I was completely distraught.”

Cross-Examination

[134] JG agreed that he had been on medication for anxiety during the marriage to CG. He indicated that he stopped taking his medication sometime in August 2020. At some point he went back on it. He estimated that he stopped using it in January.

[135] He agreed that there was an incident before his second surgery in December 2020 when he was writing on the walls in the basement. He denied that this was why he went back on his medication, but agreed that he went back on it after being assessed at the Pembroke hospital. He stated that CG thought that he was having a “psychosis episode”. He stated the doctor thought he should go back on it as well.

[136] He agreed that his basement writing involved crypto currency, the conversion of the financial system to a digital currency, and “something to do with Greek mythology.” He did not remember whether he had taken any drugs or alcohol. He stated that he wrote on the walls because he had tried to discuss putting their money into crypto. He did so to get his point across.

[137] He agreed that this was a pretty unusual episode and that he had not written on the walls since. He stated that CG was confused when she saw it. She became concerned for his mental health.

[138] He stated that he stopped taking his medication in January 2021. He was not on his medication in February 2021 or in May 2021.

[139] After his surgeries he was given hydromorphone for pain and some blood clot prescription. He was on the hydromorphone for a couple of days. He used up all his hydromorphone prescription and agreed that this would have taken him to about the end of January.

[140] He agreed that he did not have a clear memory of everything that happened during the February incidents but he was remembering to the best of his ability.

[141] He recalled the August separation. He did not recall discussing the separation in October or around Christmas of 2020.

[142] Crown counsel put a number of inconsistencies to JG between his evidence in court and his statement to the police.

[143] At page 6 of his statement, it is clear that he told the police that there was a conversation about the relationship being “done” at Christmas time. He stated that he did not recall saying that to the police and he did not recall that happening.

[144] There was a similar inconsistency at page 9 of the statement. He said his memory of what took place at Christmas time was vague. He stated that his memory would have been somewhat (but not completely) fresher in May 2021 than it was in court.

[145] At page 33 and 34 of the statement, he told the police that when he went upstairs to bed with CG, he was “probably” in the nude. He explained this by stating that he was distraught when he spoke to the police. He agreed that he now had a clear memory that he was nude. When asked whether he agreed that usually one’s memory gets worse, not better, with time, he stated, “No, that is how we used to sleep in the bed. Maybe I was confused on the question he was asking me.” Crown counsel then repeated the question and suggested that it did not confuse him, to which he agreed. She then asked, “In May 2021, you didn’t remember going to bed naked in February.” And JG agreed. Crown counsel continued, “Today you have that memory?” JG said yes.

[146] There was also an inconsistency with respect to whether he remembered that CG was naked when he went to bed. He told the police he did not remember. Two years later in Court, his memory was much clearer. He agreed with the Crown that he had somehow recovered his memory during the last two years.

[147] There was an inconsistency with respect to what time he recalled going to bed. In Court, his evidence was to the effect that they went to bed about midnight. He told the police that he went to bed around 10:30. When asked to explain this inconsistency, JG stated, “I was ballparking.” When the Crown suggested that he was “ballparking” in court, he stated “No, it is more of a certain answer.” The Crown suggested that this was “another recovered memory”. He agreed.

[148] There was a significant inconsistency between his evidence in court and what he said in his statement about having sex twice. JG agreed that when he spoke to the police, he told the officer that CG and he just went to bed. He agreed with the Crown that he gave a much more detailed description of what happened in court. He attempted to explain this by stating, “At the time the statement took place, I was under extreme stress and scrutiny. I hadn’t seen my son for 18 days.” He agreed however that he told the police about having sex with CG in the morning. He agreed that he was not under so much stress that he had forgotten about that.

[149] There was an inconsistency between what he told the police about CG touching him and the evidence he gave in Court. He agreed that when he spoke to the police he never told the police that he woke up to CG touching him. He also agreed that when he spoke to the police, he told them CG was on top of him, not vice versa. When asked to explain these differences he stated, “I was trying to come up with the facts. I was stressed. I was trying to get to my memory of what this is all about and what it is pertaining to.” The Crown stated, “Two years afterward, you now recall being woken up by her touching you?” JG replied, “Correct.”

[150] JG agreed that at no point did he tell the police anything about the use of a vibrator.

[151] JG agreed that at no point did he tell the police anything about asking CG (the second time) if she wanted to have sex again.

[152] JG agreed that he did not recall ejaculating at all when he spoke to the police, let alone ejaculating in CG’s vagina or on her stomach. He attempted to explain this by stating, “I have had quite a bit of time to think about it. I was under pressure at the time.”

[153] He agreed that he did not have any difficulty understanding the police when they were questioning him. He agreed that he was trying to give them a lot of details. He agreed that it was a “pretty fulsome” conversation and he talked at length with the officer about what he believed.

[154] JG agreed that when he spoke to the police (in May 2021) that there were some things about the February 2021 incident that were “so long ago it is a blur”. He explained that he was under a lot of stress. The Crown then suggested to him that when he was testifying he had more detailed memories about what took place than he had in 2021. JG agreed. He also agreed that testifying in Court was stressful. He agreed that “despite being essentially in the same stressful situation, now [he has] all these detailed memories.”

[155] JG agreed that he never told the police that CG grabbed his penis or inserted it in her vagina.

[156] JG agreed that he never told the police that CG told him that she wanted to have sex. He agreed that he told the police that if she said no, he would not have done it.

[157] JG agreed that at no point did he ever tell the officer that he asked CG to have sex. He agreed that he told the police that they started kissing and it progressed from there.

Analysis

[158] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

[159] In R. v. W.(D.), the Supreme Court of Canada instructed triers of fact to assess evidence in this way:

a) First, if you believe the evidence of the accused, obviously you must acquit.

b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[160] In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe R. v. Esquivel-Benitez. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a witness’ evidence do not necessarily mean that his or her evidence should be rejected R. v. J.J.R.D..

[161] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as he or she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence. R. v. Morrissey, R. v. HC. The credibility and reliability of a witness must be “tested in light of all the other evidence presented.” R. v. JJRD.

[162] In assessing each witness’s account of what happened, I have considered the account’s internal consistency, its consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.

[163] To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, their mental capability and limitations and their level of sophistication.

[164] Some inconsistencies are important; other less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern. R. v. Stewart.

[165] In order to find JG guilty of sexual assault, I must be satisfied beyond a reasonable doubt that:

a) JG intentionally applied force to CG.

b) CG did not consent to the force that JG applied.

c) JG knew that CG did not consent to the force that he applied.

d) The force that JG applied took place in circumstances of a sexual nature.

[166] Appellate courts have given trial judges the following instructions in assessing the presence or absence of consent:

a) If the sexual assault case involves a different interpretation of essentially the same events, trial judges should consider whether the complainant, in her mind, wanted the sexual touching to occur. Once she has asserted that she did not consent, the question is one of credibility. If the trial judge is satisfied beyond a reasonable doubt that she did not consent, the inquiry shifts to the accused’s state of mind R. v. Ewanchuck.

b) The accused may then establish that on the basis of her words and conduct, the complainant was consenting. Ewanchuck

c) The accused’s belief that the complainant was consenting cannot be reckless or willfully blind. Ewanchuck

d) Silence, passivity or ambiguous conduct is not consent. Ewanchuck

e) While it is open for a complainant to change her mind, the accused must make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there is a change of heart, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “no” is, at a minimum, reckless conduct which is not excusable. Ewanchuck

f) The complainant must agree to the specific sex act. Agreement to one form of penetration is not agreement to all forms of penetration. Agreement to sexual touching on one part of the body is not agreement to all sexual touching. R. v. Hutchinson Consent must be specifically renewed and communicated for each sexual act. It is not possible to give “broad advance consent”. R. v. Barton

g) Section 273.1 of the Criminal Code requires that the accused must take reasonable steps, in circumstances known to him at the time, to ascertain that the complainant was consenting. The reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say “no”. There is no catalogue of steps that constitute “reasonable steps”. Silence, passivity or ambiguous conduct is not a reasonable step. The more invasive the sexual activity and/or the greater the risk posed to the health and safety of those involved, the greater care is necessary in ascertaining consent. Greater care is also necessary where the parties are unfamiliar with one another and there is the risk of miscommunication, misunderstanding and mistake. R. v. Barton

h) Not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required to establish consent. R. v. Goldfinch

[167] When assessing the credibility of the complainant the court must be careful to not rely on impermissible myths and stereotypes under the guise of common sense and logic R. v. ARJD; R. v. Steele. For example, in this case, I take nothing from the fact that after the incidents, CG and JG continued to live “separate and apart under the same roof” until their final separation three months later.

The First Branch of the W.(D.) Analysis

[168] I do not believe JG. His evidence was rife with inconsistencies on material facts between what he told me in court and what he said to the police. I have described those inconsistencies in detail above.

[169] The Crown demonstrated that there were a number of times when he told the police that he did not remember something, only to have a better memory when testifying in-chief two years later.

[170] I understand that JG was under some stress when he gave his statement to the police. He had just been arrested for sexual assault. For him it was “out of the blue”. He also had not seen his son for a number of days.

[171] This might explain discrepancies about the time that he recalled the incidents taking place or whether he remembered that both he and CG were naked when they went to bed.

[172] While memories change and sometimes witnesses realise that something that they remembered occurring earlier is not correct, there were simply too many instances of changing memory for me to believe his account of what took place.

[173] He did not tell police that CG grabbed his penis and inserted it into her vagina.

[174] He did not tell police that CG told him that she wanted to have sex.

[175] He did not tell police that he asked CG to have sex the second time.

[176] He did not tell police that he woke up to CG touching him.

[177] What is the most damning statement, however, is what he did say to the police about how things unfolded: he and CG started kissing and “it progressed from there.”

[178] As I will set out below, that’s what happened in this case. JG relied on CG’s passivity and he proceeded to have intercourse with her without her consent and without an honest belief in communicated consent.

The Second Branch of the W.(D.) Analysis

[179] For essentially the same reasons, his evidence does not leave me in doubt.

The Third Branch of the W.(D.) Analysis

[180] Defence counsel indicated that there were inconsistencies in CG’s evidence that should lead me to have a doubt.

[181] There is evidence that she told the police that the date of separation was February 25 when in fact it was February 23. Although I find that her evidence is inconsistent on this point, I find that the inconsistency is with respect to a minor, peripheral detail. She was able to describe in detail what took place on February 23 and February 25. Nothing turns on this.

[182] There is evidence that when she gave her statement to the police (the May 25 statement), she told the police that JG asked for her consent to have sex which she denied. When she gave her evidence-in-chief, she led the Court to believe that he did not ask for consent and simply proceeded to have sex with her. When confronted with this inconsistency in cross-examination, she agreed that he had asked to have sex and she said no.

[183] I am not sure what to make of this. What is clear from the evidence is that JG persisted in having sex with her, not once but twice. On her evidence-in-chief, he did not ask. On her evidence in cross-examination, buttressed by her statement to the police, he asked but she said no. Either way, the encounter was not consensual.

[184] I find that at no point during the encounter did CG verbally indicate to the JG that she was consenting to sexual activity with him. As I have pointed out, he cannot rely on her passivity or lack of protest to carry on.

[185] The evidence is clear that CG wanted to engage JG on the problems with their marriage. She was upset that he told her that the relationship was over. She wanted to work on it. She did not want their child to grow up in a broken home. They had not slept together in some time. She felt that if he returned to the bedroom they could have a further conversation. When she tried to engage him in the living room, he ignored her and continued playing the video games.

[186] Clearly the JG took the invitation to go to the bedroom as an invitation to have sex.

[187] He asked if she wanted to have sex. She said no. He then proceeded to kiss her and touch her. She reciprocated the kissing. She did not complain about the touching until he rolled her over on to her back.

[188] He was not entitled to proceed to intercourse unless, by words or conduct, CG communicated consent to have sex to him.

[189] I accept her evidence that she did not verbally consent to sex with JG. She wanted to talk and work on their relationship. She was not ready for sex. This is consistent with her position since the parties reconciled the previous August.

[190] The act of engaging in mutual kissing is not conduct that is sufficient to amount to communicated consent to intercourse. Nor is the failure to complain during touching.

[191] In R. v. CC, my colleague Justice March concluded that the complainant’s consent to intertwining herself with the accused, placing her head on his shoulder and allowing him to touch her back did not amount to communicated consent by conduct to slide his hand under her shorts and touch her buttocks and anal area. Likewise in this case, CG’s consent (by conduct) to kissing does not amount to communicated consent to intercourse.

[192] A third inconsistency highlighted by defence counsel is the reversal in CG’s evidence about the use of a vibrator. During her first day of cross-examination, CG stated that she did not remember if there was mention of the use of a vibrator. When asked about this in re-examination on a later date, she stated that she had thought about it and JG asked her if she wanted to use one and she said no.

[193] I find that this does not significantly impact on her credibility. In the scheme of an invasive sexual assault involving forced penetration, a question about using a vibrator (which CG testified was actually broken) is something that would seem inconsequential.

[194] If anything, what this demonstrates is that in JG’s mind, the encounter was consensual. The only conclusion to draw from the fact that he asked her if she wanted to use the vibrator is that he wanted to enhance the sexual experience for CG.

[195] As I have pointed out, however, he was completely wrong in coming to this conclusion. There is absolutely nothing that CG said or did that should have led him to initiate intercourse. In this way, JG’s actions were reckless and willfully blind. He took the invitation to come to the bedroom, the mutual kissing and the lack of complaint about the touching as an invitation to engage in intercourse. He was not entitled to do so unless CG clearly and unequivocally communicated to him – by words or conduct – that she wanted to so engage. He did not take reasonable steps to obtain this clear and unequivocal communicated consent.

[196] Defence counsel submitted that the physical description of the sexual assault is implausible. I disagree. CG’s evidence is, essentially, that the accused was putting pressure on her legs, particularly but not exclusively, in the area of her knees in such a way as to render her incapable of resisting his penetration. There is nothing in how she describes this that is implausible.

[197] Defence counsel made a number of submissions regarding how CG characterised the incidents after the fact. She noted that the incidents were not reported until May. She noted immediately after, when confronted with the fact that JG wanted to end the relationship, she asked JG, “Why did you use me for sex then?” This, submitted defence counsel, belies a consensual encounter. Finally, it was submitted that later, she described JG’s actions as “manipulating” her to have sex. In CG’s mind, “manipulation” implies trickery but it does not imply forcing someone to do something against their will.

[198] I will now turn to these arguments.

[199] Delay in reporting does not, standing alone, result in a finding of credibility against the complainant R. v. DD. In this case, CG did not report the sexual assault to the police until three months after the fact. Even then, she did not go to the police to report the sexual assault. The evidence is that she went to the police because of the issue of JG leaving the child unattended. When she got to the police station, she just “went with it” in relation to reporting the sexual assault.

[200] Defence submits that what was a consensual sexual encounter became a non-consensual one when, once CG learned the marriage was over, “she very understandably felt betrayed and used.” [22]

[201] I agree that there is a danger in cases of this nature -- where the parties later separate and are ultimately engaged in family court proceedings -- for “revisionist thinking” on the part of complainants with respect to sexual encounters that took place at earlier times. There may be circumstances where there was, by words or conduct, communicated consent to a sexual encounter or where there was an honest but mistaken belief in communicated consent to a sexual encounter, which later, in the cold light of acrimonious family court proceedings and feelings of betrayal and hurt, become in the mind of the complainant, non-consensual encounters.

[202] This can be particularly difficult to root out. As Justice Major wrote in Ewanchuk,

Cases involving a true misunderstanding between parties to a sexual encounter infrequently arise but are of profound importance to the community’s sense of safety and justice. The law must afford women and men alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected. At the same time, it must protect those who have not been proven guilty from the social stigma attached to sexual offenders.

[203] This is why in Barton, Justice Moldaver made it clear that “the reasonable steps inquiry is highly contextual and what is required will vary from case to case.” He noted, “the threshold for satisfying the reasonable steps requirement will be elevated” in cases of “more invasive sexual activity and/or the greater the risk posed to the health and safety of all involved” and “where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings and mistakes.

[204] I must however, walk a fine line between this inquiry and the danger of descending into myth or stereotype. Although the nature of the analysis is “purposive” and “highly contextual”, there is no “long-term relationship exception” to the requirement of communicated consent or the honest but mistaken belief in communicated consent.

[205] This is essentially the ratio of the Supreme Court’s decision in R. v. Goldfinch, the so-called “friends with benefits” case dealing with the question of the admissibility of prior sexual history in a long term relationship. There Justice Karakatsanis stated:

Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent (Seaboyer, at pp. 613-16; Darrach, at para. 59; Barton, at paras. 91 et seq.). However, an honest but mistaken belief cannot simply rest upon evidence that a person consented at “some point” in the past: that would be twin-myth reasoning. By definition, the defence must rely upon evidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent was expressed.

[206] To return, then, to the question of whether this was a consensual sexual encounter and the complainant has engaged in “revisionist thinking” or whether this was an encounter for which there was no consent, I am mindful of the words of Justice Hogg of the Newfoundland and Labrador Court of Appeal in R. v. D.R.,

Victims of sexual assault in these situations often attempt to normalize the sexual activity so as to be able to continue to cope within the family or other close relationship. Victims young and old may experience confusion and conflict between their feelings of discomfort with the abuse and dislike of their abusers, and their feelings of love and trust for their abusers.

[207] On this score, see also the decision of Justice Jamal (as he then was) of the Court of Appeal in R. v. Rose.

[208] Having considered this issue carefully, I find that CG’s use of the words “Why did you use me for sex then?” and her initial use of the word “manipulate” to describe JG’s actions does not detract from my finding that JG was reckless or willfully blind when he proceeded to have sexual intercourse with CG.

[209] These words are explained perfectly by the ratio in DR. There was confusion and conflict in CG’s mind between her discomfort with what happened and her feelings of love for JG and her desire for her son to grow up in what she saw as a “normal” two-parent home. I find that at first, CG was willing to forgive what happened that night in an effort to salvage her marriage and have happy home for her son. Once it became clear, within a couple of days of the incidents, that her marriage was going to end and her desire to have a happy two-parent home for her son was not going to be realised, she continued to soldier on living with JG because it made the most sense for her and her son to do so.

[210] When she felt compelled to report what she saw as JG’s erratic behavior in relation to care of their son in May to the police, she also felt compelled to mention the incidents. From there, the police investigation focussed on the sexual assault incidents. Her surprise and frustration with the fact that the police told her that she could not return to live with JG and that they only had the clothes on their backs belies the fact that she did not think that telling the police what happened would start this process.

[211] CG’s conflict and confusion, and her willingness to forgive and try to move on for the good of the family does not render her account incredible.

[212] It does not make non-consensual sexual intercourse consensual, nor does it give rise to an honest but mistaken belief in communicated consent.

[213] Defence counsel also argues that CG’s use of the word “manipulate” with respect to JG’s actions comes from courses that she was taking as part of her training to become a Personal Support Worker, and thus tainted her view of what was a consensual encounter.

[214] I disagree. While there is evidence that CG has, through her education, become more sophisticated and live to vocabulary and issues of sexual assault since the incidents, I find that there is no basis to believe that has caused her to change her characterization of the incidents from consensual ones to sexual assault.

[215] In her mind, the incidents were always not consensual. She may have been willing to forgive and move on for the good of everyone, but that does not mean that the nature of the incidents were not sexual assaults.

[216] There will be a finding of guilt.

Released: June 2, 2023 Signed: Justice J.R. Richardson

Footnotes:

[1] See CG’s May 25, 2021 statement, page 86. [2] In some military families, “the Padre”, who is member of clergy, plays an important role with respect to life on base. It is not usual for the Padre to offer advice about life events, in addition to spiritual support. [3] CG written statement to police, May 8, 2021, page 5. [22] Defence submissions, paragraph 53.