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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 01 30 Court File No.: Halton Info # 1211210 2495

Between:

HIS MAJESTY THE KING

— AND —

S.J.

Before: Justice Jennifer Campitelli Heard on: December 4, 5, and 11, 2023 Reasons for Judgment released on: January 30, 2024

Counsel: Renee Mahoney, counsel for the Crown Robert Kraska, counsel for the accused S.J.

CAMPITELLI J.:

[1] At the commencement of his trial, S.J. plead guilty with respect to Count #6, #7, #8 and #9 on the information, which is before the court. An agreed statement of fact was filed as Exhibit #2 relative to those counts. The crown withdrew Count #5, which resulted in S.J. proceeding to trial with respect to the following counts. That he:

(1) Between the 7th day of September in the year 2015 and the 9th day of September in the year 2015 both dates inclusive at the Town of OAKVILLE in the said Region, did commit a sexual assault on M.B. contrary to Section 271 of the Criminal Code

AND FURTHER

(2) that S.J. between the 7th day of September in the year 2015 and the 9th day of September in the year 2015 both dates inclusive at the Town of OAKVILLE in the said Region, did in committing an assault upon M.B. cause bodily harm to him contrary Section 267 (b) of the Criminal Code

AND FURTHER

(3) that S.J. between the 7th day of September in the year of 2015 and the 9th day of September in the year 2015 at the Town of OAKVILLE in the said Region, did commit mischief by willfully damaging without legal justification or excuse and without colour of right property to wit cell phone of M.B. the value of which did not exceed five thousand dollars contrary to Section 430(4) of the Criminal Code

AND FURTHER

(4) that S.J. on or about the 18th day of May in the year of 2021 at the Town of OAKVILLE in the said Region, did commit an assault on M.B., contrary to Section 266 of the Criminal Code

Factual Background

[2] S.J. and the complainant, M.B., were involved in an intimate partner relationship at the time of the alleged offences. Sometime between September 7, 2015 and September 9, 2015, M.B. alleges that S.J. pushed her from behind while the pair were in the kitchen area of their shared residence in Oakville. The impact caused M.B. to fall forward and hit her head on a kitchen cabinet. As a result, she sustained an injury to her forehead, which the defence concedes rises to the level of bodily harm. However, the defence takes the position that S.J. was acting in self-defence and that M.B. was, in fact, the aggressor in the alleged altercation.

[3] M.B. further alleges that the injury she suffered to her forehead, caused her to lose consciousness. When she woke up, S.J. was digitally penetrating her vagina, which was sexual contact that she had not consented to. S.J. denies any sexual contact taking place. He also disputes that M.B. was unconscious at any point in time throughout their interaction.

[4] With a view to the May 18, 2021 allegations, the complainant alleges that she and S.J. became involved in an altercation related to a text message he received late in the evening, after he returned home from work. Ultimately, M.B. alleges S.J. assaulted her in the kitchen area and in the primary bedroom of their home. Again, S.J. strongly denies these alleged assaults ever took place.

Guiding Legal Principles

[5] Given that S.J., the defendant, has provided evidence, the framework set out in R. v. W.(D.), [1991] S.C.J. No. 26 applies. Specifically, the test outlined at paragraph 28:

(1) If I believe the evidence of S.J., obviously, I must find him not guilty;

(2) Second, even if I do not believe the testimony of S.J., but I am left in reasonable doubt by it, I must find him not guilty;

(3) Finally, even if I am not left in doubt by the evidence of S.J., I must ask myself whether on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of S.J.

[6] In turning my mind to the analysis I must engage in, I have also reviewed the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. In that article, Justice Paciocco helpfully breaks down the W.(D.) principles into five analytical points:

(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.

The Incident Alleged to have Occurred between September 7, 2015 and September 9, 2015

The Evidence of M.B.

[7] M.B. provided her evidence in a straightforward and candid manner. She became somewhat confused about peripheral details surrounding the actions she engaged in relative to the lease agreement for the property located at [Address 1], Oakville, on the date of the alleged incident. However, it must be remembered that September 2015 is more than eight years ago now, and I did not find M.B. was trying to be evasive or mislead the court in providing her evidence in this area rather, these peripheral details were simply not clear in her mind. I do not find that M.B.’s uncertainty surrounding these peripheral details adversely impacted her credibility, or the reliability of her evidence overall.

[8] At the time of the alleged offences, S.J. and M.B. had purchased a property located at [Address 2] in Oakville. While under cross examination, M.B. recalled driving some items back and forth to that property on the date of the alleged incident. She remembered the pair were still residing at [Address 1], and it was her evidence that she utilized her own vehicle to move items back and forth. M.B. maintained, even when pressed under cross examination, that she was never in S.J.’s vehicle for that purpose.

[9] M.B. testified that while she was washing up at the sink area of the [Address 1] property, S.J. “came round”. M.B. recalls he was “ranting and raving because he had a mortgage of $400,000”. It was her evidence that she believed S.J. wanted her to sell and not lease the [Address 1] property, because that is what they had discussed previously. It was M.B.’s evidence that their interaction in the kitchen was a result of the stress S.J. was experiencing as a result of having the $400,000 mortgage. M.B. testified that he was “yelling” while she was “washing up” at the sink, and then he pushed her from behind. M.B. recalled that the force S.J. applied to her back with his hands caused her to fall forward and strike her head on the kitchen cupboard. It was M.B.’s evidence that she was “unconscious” after that on the floor. M.B. also pointed to a scar on her forehead while she was providing her evidence and indicated that the impact against the cupboard had caused a deep cut on her forehead, and she remembered a significant amount of blood on the floor as a result of her injury. However, M.B. did not seek any medical attention.

[10] M.B. testified that when she woke up from being knocked unconscious she was “naked from the waist downward” and S.J. was “finger fucking” her without her consent. She described this as taking two fingers and thrusting them in and out of her vagina. She recalled S.J. stated “I thought that would wake you up”. M.B. remembered that she told S.J. to “fuck off” and “get out”, and that he complied and left their residence at that point in time. It was M.B.’s evidence that she was not able to call anyone for help, as S.J. has smashed her phone on the kitchen floor; however, I heard no direct evidence with respect to S.J. performing this act.

[11] Despite being unclear with respect to peripheral details, I found M.B.’s evidence specifically related to the incidents alleged to be detailed and consistent. Moreover, M.B.’s evidence was corroborated by the evidence of S.J. in critical areas. I found M.B. to be a credible witness and her evidence connected with September 2015 incident to be reliable.

The Evidence of S.J.

[12] S.J. was not an impressive witness. He provided evidence that I find was internally inconsistent and at times, completely unbelievable. His evidence was confusing and illogical. Moreover, when S.J. was pressed for detail while under cross examination, I find he became extremely evasive and at times, even combative. I did not find S.J. to be a credible witness, nor did I find his evidence to be reliable.

[13] S.J. agreed that an altercation did take place between himself and M.B. between September 7, 2015 and September 9, 2015. However, S.J. portrayed M.B. as the aggressor. He testified that on the day of the alleged incident, the pair attended their property at [Address 2] in Oakville. Initially, he recalled the pair were in a celebratory mood; although, it was his evidence that a confrontation began while they were travelling back to the [Address 1] property when the reality of the situation set in. Particularly, as it related to finances. His evidence was consistent with M.B. in that he remembered being anxious about the mortgage connected to the purchase of the [Address 2] property, and that was an aspect of the conflict. His evidence also aligned with M.B. in that he testified that the altercation became physical in the kitchen area of the [Address 1] property.

[14] However, on S.J.’s version of the events, the pair were involved in an argument when M.B. lunged toward him and began slapping him on either side of his head and his ears. S.J. described this conduct by M.B. as “getting beaten” by his wife. He recalled grabbing M.B.’s wrists, turning her around and pushing her away from him. At that point, S.J. testified that M.B. stumbled forward and hit her head on a kitchen cabinet. It was his evidence that M.B. was not rendered unconscious at any point. S.J. initially described being worried about his safety after he had turned M.B. away from him and explained that he was trying to get M.B. to stop hitting him. However, he then agreed that M.B. was no longer hitting him once he had successfully turned her around.

[15] I found S.J. became extremely evasive when asked to describe what he could see in front of him at the point in the altercation where he testified that he had M.B. turned away from him, but before he pushed her. Eventually, after much back and forth, he agreed he could see the window above the kitchen sink in front of him, which seemed objectively reasonable in the circumstances. On my review, I found this aspect of S.J.’s evidence troubling, as he appeared to be intentionally distancing himself from the area where both parties agree M.B. struck her head.

[16] S.J. was pressed under cross examination regarding what options he had available to him when he described pushing M.B. away for his safety. Within this exchange, S.J. admitted that he could have “ran out the door”. In fact, S.J. admitted that pushing M.B. was something he chose to do “instead” of leaving the residence. This admission served to completely undermine his previous evidence.

[17] When reviewed in its totality, I found S.J.’s description of the confrontation, which lead to M.B. striking her forehead on the kitchen cabinet unbelievable. To be clear, I completely reject S.J.’s evidence that M.B. lunged at him and began striking him on either side of his head and his ears.

[18] Turning now to the alleged sexual assault, S.J. adamantly denied digitally penetrating M.B. while she was unconscious and lying on the kitchen floor. S.J. testified that after M.B. struck her head on the cabinet, she fell back on to the kitchen floor, got up and yelled “get the fuck out of my house”. S.J. recalled that M.B. threw her cell phone at him, and he left the [Address 1] residence immediately.

[19] When asked questions regarding the purchase of a replacement iPhone in re-examination, S.J.’s evidence was very troubling. He abruptly stated, in reference to M.B., “when she woke up, when she woke up”. He then quickly corrected himself by stating, “when she got up from the floor, she threw the cell phone at me as I was leaving. Sorry. That was…”.

[20] I approach the demeanour of any witness with the necessary caution, realizing that individuals all experience the court process very differently. However, when S.J. provided this evidence to the court, I found his reaction very telling. As he sat before me, S.J. appeared to catch himself after twice stating that M.B. “woke up”. Clearly, this utterance was inconsistent with his previous evidence and corroborative of M.B.’s evidence on this point. I found his subsequent apology followed by a complete loss for words to be equally telling. S.J. was visibly shaken.

[21] I do not believe S.J.’s evidence, that M.B. remained conscious throughout the alleged incident. I also reject his specific denial of digitally penetrating M.B. while she was unconscious on the kitchen floor.

Analysis

[22] I have considered S.J.’s evidence within the context of the complete evidentiary record, which has been placed before me. I do not believe S.J.’s evidence related to the incident alleged to have occurred in September of 2015. I find his evidence was riddled with internal inconsistencies and he was intentionally evasive when pressed for detail surrounding some of the more contentious aspects of his interactions with M.B. This adversely impacted his credibility and the reliability of his evidence overall.

[23] I find S.J. provided evidence that was intentionally misleading and unbelievable. Simply put, I did not find his evidence to be truthful. I do not accept S.J.’s evidence, nor am I left in a reasonable doubt by it.

[24] However, my analysis is far from over. Even though I do not accept S.J.’s evidence, nor am I left in a reasonable doubt by it, I still must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt of S.J.’s guilt.

[25] I find M.B.’s evidence related to the September 2015 incident to be both credible and reliable and I accept it. Despite being unclear with respect to peripheral details, I find M.B.’s evidence specifically related to the allegations to be detailed and consistent. Moreover, I find S.J. corroborated important aspects of M.B.’s evidence, which enhanced her overall credibility. M.B. recalled the sequence of events and the dialogue exchanged between her and S.J. at critical moments. Her evidence was believable and flowed logically. I accept it.

[26] Prior to carrying my analysis forward, I think it is helpful for me to review the findings of fact I have made based on the evidence, which I have accepted on this evidentiary record. I have made the following factual findings:

(1) I find that between September 7, 2015 and September 9, 2015, S.J. and M.B. became engaged in a conflict with respect to the financial obligations surrounding their purchase of the property located at [Address 2], Oakville;

(2) I do not find that M.B. “lunged” at S.J. as he described, slapping him on either side of his head and ears;

(3) Rather, I find that S.J. pushed M.B. with both hands at a time when he was located behind her. He applied force to M.B.’s person, which caused her to fall forward and strike her head off a kitchen cabinet at the property located at [Address 1], Oakville;

(4) In striking her head on the kitchen cabinet, M.B. suffered a deep cut to her forehead;

(5) I find that M.B. was then rendered unconscious and fell to the kitchen floor;

(6) While M.B. was unconscious, I find S.J. inserted his fingers into her vagina and began thrusting them in and out as she described;

(7) I have not come to any finding of fact with respect to how M.B.’s cell phone became damaged.

[27] I have concluded that when S.J. inserted his fingers into M.B.’s vagina while she was unconscious on the kitchen floor, he did so for a sexual purpose. I find that M.B. did not consent to this digital penetration.

[28] Moreover, I have concluded that when S.J. pushed M.B. from behind, he intentionally applied force to her person, and he did so without her consent. I find the impact of this force caused M.B. to fall forward and strike her head on a kitchen cabinet. On behalf of S.J., Mr. Kraska has conceded that the deep cut M.B. sustained to her forehead, when she made contact with the cabinet, rises to the level of “bodily harm”.

[29] Neither party disputes there was damage caused to M.B.’s iPhone. However, with a view to who caused that damage, I do not find I have a sufficient evidentiary basis to conclude it was S.J.

The Incident Alleged to have Occurred on May 18, 2021

The Evidence of M.B.

[30] Consistent with my previous findings, M.B. presented as a credible witness in providing evidence related to the May 18, 2021 incident. However, I did not find her evidence with respect to these allegations to be reliable. It was riddled with internal inconsistencies and inherent implausibility. Although I find M.B. was attempting to be truthful, her evidence presented with frailties, which impacted its ultimate reliability.

[31] M.B. testified that S.J. arrived home from work close to 11:00 p.m. on May 18, 2021. She recalled when he entered their home, he didn’t acknowledge her, so she went upstairs to watch the news. It was M.B.’s evidence in-chief that S.J. attended upstairs shortly after she did. As the pair lay in bed, and close to midnight, M.B. testified that S.J. received a notification on his cell phone. M.B. remembers S.J. telling her it was the Weather Network, which she did not believe. Ultimately, M.B. recalled the pair became engaged in conflict surrounding the nature of the notification S.J. received.

[32] It was M.B.’s evidence that S.J. became very angry and said things like, “who do you think you are”, “you don’t have a right to ask me”, and “get out of my house”. M.B. testified that she tried to remove herself from the situation by going into the backyard to have a cigarette. She recalled that angered S.J. even further, as he was yelling at her about her smoking. The pair went back inside the residence, where M.B. alleges that S.J. pushed her once with his hands, without her consent, in the kitchen area.

[33] At this point, M.B. recalled going back to the primary bedroom, and S.J. following behind her. It was her evidence that the conflict continued and eventually, she attempted to retrieve her phone from the bedside table. Initially, M.B. testified that S.J. grabbed her phone before she was able to retrieve it, so she “went” for his phone. At this point, M.B. described S.J. as obtaining her phone and throwing it at her. Saying “call the police”, “call the cops”. When pressed under cross-examination, the sequence of events surrounding this struggle over cell phones appeared to change. M.B. then testified that S.J. grabbed her phone right out of her hand, and eventually threw her phone; however, she no longer suggested S.J. threw her cell phone at her. Rather, she recalled him throwing her phone on “the floor or on the bed”. I found the inconsistencies present in this area of M.B.’s evidence troubling. It is also noteworthy that when M.B. provided her statement to the police, when these events would have been fresh in her mind, she described her recollection as “a little bit blurry”.

[34] M.B. testified that while the pair were struggling on the bed, S.J. pushed her, and she ended up falling on the floor. She recalled that S.J. was over top of her, on his knees, holding her down. It was M.B.’s evidence that S.J. had one hand on her shoulder and his other hand on her throat. She remembers thinking at that point, “oh my god, I’m going to die”. According to M.B., she pushed S.J. off her, and she remembered him falling backward and rolling. It was at this point, that she was able to escape. When pressed while under cross-examination with respect to how she was able to successfully push S.J. off her, notwithstanding there was a significant weight differential between them, I do not find M.B. was able to provide a plausible explanation. Particularly, given it was her evidence that S.J. was holding her down at that point in time, with one hand on her shoulder and the other on her throat.

[35] M.B. testified that after she pushed S.J. off her, she was able to escape the residence.

The Evidence of S.J.

[36] Consistent with his previous testimony, when providing his evidence with respect to the May 18, 2021 allegations, I found S.J.’s evidence troubling. It was inconsistent, farfetched and illogical. When pressed while under cross-examination, S.J. became evasive and confrontational. I did not find not find S.J. to be credible with respect to his account of the May 18, 2021 events, nor did I find his evidence to be reliable.

[37] S.J. testified that he returned home from work on May 18, 2021, had a drink of water, attended the primary bedroom and took a shower. His evidence was consistent with M.B. in that both parties described a conflict initiating between them over a notification he received on his phone. S.J. admitted that the exchange became heated and he asked M.B. to “get the fuck out”.

[38] It was S.J.’s evidence that M.B. began to pack her things, while he remained in the bed with his hands crossed across his chest. When pressed under cross-examination, S.J. became extremely evasive; however, he acknowledged that he moved his hands briefly to show M.B. the “finger” a few times. However, he maintained that other than gesturing to M.B. three or four times, he remained in bed, with his arms folded across his chest throughout the entire argument that ensued. This, notwithstanding, he had testified previously that his polish heritage resulted in him talking with his hands when he became animated. On my review, I found this aspect of S.J.’s testimony to be nonsensical.

[39] S.J. denied pushing M.B. in any fashion. He also denied kneeling over her and holding her down with one hand on her throat. It was his evidence that M.B. packed her things and left the house while he remained under the covers.

Analysis

[40] I do not believe S.J.’s evidence related to the May 18, 2021 allegations. I find his evidence was inconsistent, illogical and nonsensical. Moreover, he became extremely evasive, which ultimately adversely impacted his credibility and the reliability of his evidence overall. To be clear, I do not accept S.J.’s evidence, nor am I left in a reasonable doubt by it.

[41] However, my analysis is far from over. Even though I do not accept S.J.’s evidence, nor am I left in a reasonable doubt by it, I still must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt of S.J.’s guilt.

[42] I was troubled by M.B.’s evidence related to this incident. She was inconsistent in her account of the sequence of events surrounding the struggle she described over her cell phone. I also found her evidence related to successfully pushing S.J. off her person, while he held her down with one of his hands on her shoulder and his other hand on her throat inherently implausible. In particular, due to their relative body positions at that time, and the weight differential, which existed between them.

[43] Ultimately, although I found M.B. to be a credible witness who was attempting to be truthful, I did not find her evidence related to the May 18, 2021 incident to be reliable.

Conclusion

[44] In the result, S.J. entered pleas of guilt to Count #6, Count #7, Count #8 and Count #9 prior to the commencement of his trial. Following my review of Exhibit #2, I now make findings of guilt relative to those counts.

[45] Further, I find S.J. guilty with respect to Count #1 and Count #2. However, I find him not guilty with respect to Count #3 and Count #4.

Released: January 30, 2024 Justice Jennifer Campitelli