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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 02 05 COURT FILE No.: Pembroke 21-1590

BETWEEN:

HIS MAJESTY THE KING

— AND —

MG

Before: Justice J.R. Richardson

Heard on: May 10, 11, June 21, August 23, 2023 Reasons for Judgment released on: February 5, 2024

Counsel: Richard Morris.................................................................................... counsel for the Crown Celine Dostaler................................................................................ counsel for the accused

RICHARDSON J.:

Introduction

[1] MG is charged with two counts of sexual assault against KM. The first is alleged to have occurred between the 1st and 30th of June, 2007. The second is alleged to have occurred between the 1st and 30th of April, 2008.

[2] The Crown elected to proceed by Indictment.

[3] At the outset of the trial, the parties advised that jurisdiction of the Court and identification were admitted.

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

Evidence of KM In-Chief

[5] KM testified that she resides locally and was born and raised here. She is now 32 years old. In June 2007, she was 16. In April 2008, she was 17.

[6] In June 2007, KM was in Grade 11. She was working part-time at a grocery store and attending high school. She was residing with her parents.

[7] She met MG by messaging him through MSN Messenger. She met MG through a previous boyfriend, A. MG played hockey with A. KM knew that MG worked at a building supply store. He liked break dancing, was in to cars, and enjoyed hockey. She believed that he was 21 years old when they met.

[8] She recalled that on their first date, which occurred in April or May 2007, they sat in his parents’ van, ate fast food that they purchased from Wendy’s and talked.

[9] At some point after that, they ended up in a “committed relationship”. KM did not recall all the details. “It just progressed”, she said. They saw one another every couple of weeks.

[10] She recalled that in June 2007, her friends had a get together to celebrate the end of the school year. There were approximately ten people at the get-together which took place at a friend’s house.

[11] There was also drinking. KM was drinking Smirnoff Ice coolers. She does not remember how many she had to drink but she stated she had quite a few. She described herself on leaving the party as “definitely under the influence”.

[12] She recalled that MG was also drinking but she could not recall how much he had to drink. He also appeared to be “under the affects” of alcohol.

[13] She does not recall exactly how late she stayed at the party. She said that they were there for at least a few hours. She recalled that it was not dark when they arrived at the party but it was dark when they left. She believed that the party took place on a Friday.

[14] MG rented a hotel room for the night and he asked KM to stay with him.

[15] KM stated that she had an 11:00 pm curfew and her parents liked to know where she was. On the night in question, she told them that she was staying at a friend’s house.

[16] KM testified that she did not have any expectations of what the night would entail. She believed that she was just going to spend more time with MG.

[17] On leaving the party, they drove to a motel which she stated was at the intersection of Daniel Street and Eady Street in Arnprior. She testified that the motel is now called the Knight’s Inn. The party was on the other side of town. MG drove a blue Honda Accord. She did not notice any difficulties with his driving. It was just the two of them in the car. MG had checked into the motel before the party.

[18] She recalled that the room was on the same level as the street. On arrival at the motel they went right to the room, which was located to the left of the motel office, one or two from the end.

[19] She had brought a change of clothes, something to sleep in and some make-up.

[20] She recalled that the room had a very small bed, a tv and a bathroom.

[21] She did not believe that they had anything else to drink when they arrived. She said that they joked around and talked about the evening. There was no tension.

[22] KM stated that they started kissing and there was some petting. MG wanted to progress further and tried to undo her pants.

[23] KM stated that the petting was touching of private areas over the clothes.

[24] KM testified that she did not want things to progress further than the kissing and petting. She told him that she did not want things to progress further, but she could not recall the exact words that she used.

[25] MG stated, “Oh come on, it will be fun”. She recalled saying that she did not want to.

[26] She stated that ultimately they had sex. She did not recall how long after she initially said no that it proceeded.

[27] KM recalled that there was some discussion and they continued with the kissing and petting. “He was trying to convince me”, she said. She stated that she told him that she wasn’t ready and she did not want to. She could not recall how many times they went back and forth in this matter. “It was not a long process”, she said.

[28] KM stated that MG removed her pants. She said “no” again and tried to pull them back up. She was not able to do so because MG was on top of her. Her pants were around her ankles. She recalled that she was wearing jean shorts. She could not recall if she was wearing underwear. She stated, however, that once he was on top of her with her pants down, she had nothing covering her private area.

[29] She recalled that he was dressed in jeans and t-shirt. However, his pants “came off” after he got up to go to the washroom. When he returned from the washroom, he was dressed in a t-shirt and underwear.

[30] With respect to the timing of his trip to the washroom, KM stated that he went to the washroom after she said “no” and after he made his first attempt to undo her pants.

[31] When MG came back from the washroom, KM was still on the bed. She could not recall whether he sat up or lay down. She stated that there was conversation but she could not recall what it was about, nor could she recall much about the mood of the conversation other than it was “not confrontational”.

[32] KM could not recall her exact reaction when he rolled on top of her.

[33] Shortly after this, he put his penis in her vagina. She recalled that when this happened, he still had his underwear on. When asked how sure she was that his penis was inserted into her vagina, KM stated, “100 percent”.

[34] As this happened she was saying “no”. She could not, however, recall her exact words. She also could not recall whether MG had any verbal reaction.

[35] She stated that she had no recollection of saying “yes”.

[36] She could not recall how long this lasted. She explained that it was something she tried to block it out. She could not recall how things ended other than she remembered falling asleep. The last thing she remembered falling asleep was “feeling pretty awful”.

[37] She does not remember how long she slept. She recalled that they left the motel the following morning. It was daylight.

[38] They did not discuss the events of the previous evening. They went to McDonald’s for breakfast and then went home.

[39] She could not recall exactly what time she got home or whether she went to work that day.

[40] She stated that she continued the relationship for a couple of months and found out that she was pregnant. This caused some stress in the relationship. KM was confused whether or not she should proceed to term or terminate the pregnancy. She ultimately decided to proceed to term.

[41] Once she found out she was pregnant, the relationship ended very quickly. She could not recall who ended the relationship.

[42] They reconciled for a short while, no more than a couple of months and probably only for about a month, in order to try to work on things for the benefit of their child. She stated that this was a mutual decision.

[43] Ultimately, their son was born […], 2008.

[44] KM indicated that the boy lived with her until he turned 10.

[45] In April 2008, she and MG were “back together”. KM was living at her parents’ residence in Arnprior and MG was living with his parents in Pembroke. Despite the fact that she had described them as being “back together” she did not consider that they were “a couple”.

[46] She recalled that MG would visit for a few hours or spend the night.

[47] On the day in question, they were upstairs in her parents’ home in their son’s bedroom. MG wanted to have sex. KM stated that she did not want to and she said “no”.

[48] She recalled that this arose when they were laying on the bed. MG talked about wanting to work things out, wanting to be together and wanting to be sexually active. She stated that she wanted what was best for her son and she wanted to “give him a family”. She stated, however, that she did not want to be sexually active.

[49] She recalled that he just said, “Let’s just do it.” She was concerned because she was not even six weeks post-partum and she was not fully healed from childbirth. She explained that she had a small tear and she had received stitches. She was instructed by the medical team to abstain from sexual activity, keep the area clean and rinse it with a peri-bottle. She said that she was still in slight discomfort in the area.

[50] KM stated that she did not recall the details but she recalled that they had sex. She recalled that he was positioned behind her. She did not recall any conversation just prior to or during the act of sex, other than she told him that she didn’t want to have sex.

[51] In the immediate aftermath, she stated that she did not have much to say. She could not recall whether he spent the rest of the night or whether he went home.

[52] She stated that as a result of the sex, the tear re-opened and she bled. She could not recall how long the bleeding lasted. She recalled donning a pad. She did not need medical assistance.

[53] She stated that the area has never fully healed. There is no longer any bleeding. She described the area as having two flaps of skin that have never fully gone back together. She indicated that the area was less than half a centimeter.

[54] Emotionally, she recalled feeling completely worthless.

[55] She stated that her parents were on the main floor. Her infant son was in the room while the act took place.

[56] KM lived with her parents until April 2009. She then moved to CFB Borden with MG, who by this time, had joined the military. The relationship lasted until January 2010.

Cross-Examination of KM

[57] KM testified that her birthday was July 3, 1990.

[58] KM did not remember how the details of how she came to speak with MG when they first met. She did not remember if he was assisting her previous boyfriend A and trying to persuade her to get back together with A. All she remembered was wanting to meet him.

[59] Defence counsel suggested to KM that she agreed to go to the motel with MG in order to celebrate their first month of going together. KM stated that she did not recall. Defence counsel then suggested that she agreed to go to the motel to celebrate her birthday. She did not recall that either. She agreed with counsel that when you are sixteen years old, one month into a relationship was “an important milestone.”

[60] There was considerable cross-examination about what motel the parties went to. Nothing really turns on the proper name of the motel. KM identified the motel that they went to and described it. Nothing turns on which of several motels in Arnprior that motel now operates as.

[61] KM agreed that she made two statements to police. The first occurred on October 13, 2021 and she spoke to the officer by telephone. The second statement occurred about two weeks later. It was in person.

[62] Defence counsel put to KM that the motel room had two beds. She recalled only one. She did not remember whether there was a couch or the colour of the blankets. In my view, these are peripheral details.

[63] Defence counsel put to KM that when she spoke with the officer on October 29, 2021, she could not tell him exact details. KM stated, “It has been a while. I’ve tried to block everything out.” Defence counsel suggested to KM that that all she told the officer was that MG did not take no for an answer. KM stated, “I remember the next morning waking up and wanting to die.”

[64] KM agreed that she did not go into near the detail with officer that she did when she testified in Court. She disagreed with the suggestion that she did not remember the details. She stated that she “remembered some”. Defence counsel suggested that KM did not think that the details were sufficiently important to share with the police. KM stated that she was extremely uncomfortable sitting in a room with two male police officers. She also stated that they did not ask her to go into any great detail. She stated that she could not remember all the details because she was experiencing trauma.

[65] Defence counsel pressed and suggested that KM knew she was in the police station to discuss the details, such as information about what she was wearing. KM stated, “Not those details”.

[66] KM agreed that when she went to the police station she needed to be honest and tell the truth. She recalled that she was to give as much detail as she could remember. She stated, however, that she did not know exactly how much detail to give and “where the line was”. She agreed that she did not share with the police the exact words that were shared between her and MG.

[67] KM stated that she recently spoke to a friend about the incident. She stated that she wrote journals over the years where she talked about her feelings but she did not describe the details. She stated that she had not discussed the details with any counsellors.

[68] KM spoke to her mother after or shortly after the incident at the motel. She did go into detail with her mother. She told her mother where it happened, that she said no and that the sex was without her consent. She did not tell her mother how it occurred or what she was wearing.

[69] She also told her mother about the 2008 incident, shortly after it occurred.

[70] KM added that she had spoken to a few friends but she did not give any details. She identified WB and SO as friends she told about the incidents, but only after the charges were laid. She stated that she did not go into detail. She also told her present husband. He was present in Court when KM gave her evidence. She stated that hearing her discuss it in Court was the most that he had ever heard about it.

[71] KM agreed that the only real details that she shared with the police was that there was forced penetration and she felt like she could curl up and die the next day. She agreed that the details that she testified to in Court was the first time she went into detail with Crown counsel as well.

[72] KM denied the following suggestions made by defence counsel: a) that it was okay to have sex because she was ending her period. b) that she had a shower in order to remove a tampon or a pad. c) that after the shower, she lay on the bed naked and was kissing MG. d) that she wanted to have sex with MG and she consented to it.

[73] KM either did not know or did not remember if she told MG’s family. She did agree with the suggestion that she recently spoke to MG’s sister, CW and told her that there was non-consensual sex. She stated that she told MG’s sister before the charges were laid and before she went to the police.

[74] Defence counsel then focused on the April 2008 incident. KM did not remember telling the officer on October 13, 2021 that this incident happened about three or four weeks after she gave birth to her son. She did, however, remember speaking to the police on October 29, 2021 and telling them that it happened two or three weeks after giving birth.

[75] She agreed that she did not go to the doctor because she had already scheduled a six week post-partum check-up.

[76] KM stated that the April 2008 incident took place in the evening after supper. Her mother and father were both at home. She was not sure if they were sleep or awake. She stated that she did not make any noise or call for help. She stated that she said no but “not loudly”. She agreed that she knew that her parents were close by and would come to help her if she needed it. She agreed that she chose not to do so.

[77] KM stated that she was 17 when this happened. She had similar rules as when she was 16, including a curfew. She agreed that her parents wanted to make sure that she finished school and wanted what was best for her.

[78] Defence counsel suggested to KM that her parents did not allow MG to sleep in the home. KM stated that she did not “recall the exact rules that were set for that.” She disagreed with the suggestion that MG was not permitted inside except with adult supervision from either her mother, her father or their neighbours K and J. She disagreed with the suggestion that the only time that MG was allowed in the house was before their son was born. She disagreed with the suggestion that when MG came, he slept in his car or in a baseball field on I Street in Pembroke.

[79] KM maintained that after their son was born, MG was allowed in the home overnight. She agreed that he was working full-time at the building supply store. She was not sure if he was working for his father as well. She disagreed with the suggestion that he visited the house regularly in the first six weeks.

[80] With respect to parenting time arrangements, KM agreed that for the first ten years after they separated, they had joint custody and she had primary residence. She agreed that this situation was arrived at after a “battle” in court. She stated that they settled in mediation.

[81] KM could not recall if, through the family court process, she filed affidavits. She agreed with the suggestion that she never mentioned the sexual offences to anyone when she went to Family Court.

[82] KM could not recall if she knew that MG’s grandfather died after being struck by someone who was drinking and driving. She also could not recall if she knew that his cousin had a serious accident with someone who had been drinking and driving. When asked if given this history, she knew that MG was adamantly against drinking and driving, KM stated that she did not remember.

[83] KM stated that they broke up while MG was posted to CFB Borden. They broke up after he told her that he hit a girl in the private area. He told her that he had to do fourteen days of confinement for this under the military discipline system. Defence counsel proceeded to show KM a copy of MG’s military record which contains four convictions under section 90 of the National Defence Act for being Absent without Leave July 17, August 10, August 18 and August 28, 2009. The punishment levied was fourteen days confinement to barracks and a $400 fine (Exhibit 3). According to his official military record at least, MG was never charged with assault or sexual assault.

[84] With respect to the tear that that KM suffered during childbirth, KM could not recall the number of stitches she had. She recalled that they were dissolvable stitches but she could not recall how long it took for them to dissolve. She stated that there is a scar as a result of the tear and this incident.

[85] She was sure that the April 2008 incident happened within the six week post-partum period. She agreed with defence counsel that she saw the doctor on April 29, 2008 and that this was her first visit to the doctor after her son was born. She agreed that she did not mention the tear to her doctor. She could not remember if the doctor mentioned seeing the tear.

[86] Defence counsel asked KM about another visit which occurred on May 5, 2008. She stated that she did not recall the visit and she did not recall some aspects of the examination that the doctor performed. She agreed that the doctor checked her vagina and did not mention that “anything was out of place” or that there was a scar. She agreed that her doctor told her that everything was normal.

[87] Defence counsel asked KM about a visit to her doctor which occurred on May 29, 2008. She agreed that this visit was a routine follow-up but she could not remember the specific aspects of the doctor’s examination or any discussion about the tear or scarring.

[88] KM reported similarly with respect to visits to the doctor which occurred in June and September 2008.

[89] Despite this, KM told the police officer in her statement that the doctor would have noticed the tear and spoken to her about it. When defence counsel confronted KM about this, she stated, “I thought the doctor might have noticed it.”

[90] KM later said that she talked to her doctor about it at a later date and the doctor told her that the tear was normal. I note that medical records for KM for the period between March 2008 to September 27, 2008 were disclosed. It was apparent that there was nothing in the medical records discussing a tear or treatment of a tear. It was clear that when she was speaking about “later on”, KM was referring to some, unspecified point in time. KM also made it clear that she recalled discussing it with her doctor, even if the doctor did not make note of it in the medical records. In the portion of the statement that was put to her, KM added, that she did not tell her doctor how she got the tear.

[91] Based on this exchange, defence counsel asked KM about who decided on the time frame for the release of medical records. KM indicated that the officer filled out the form and she signed it. She didn’t recall any discussion about it.

[92] KM could not remember how long the tear bled for after the sexual assault.

[93] Defence counsel then cross-examined KM on her statement, where at page 3, KM stated that she bled for years and years but she did not go to the doctor about it. KM agreed that in her evidence in Court, she indicated that it healed quickly and did not bleed long. She noted that the tear would bleed when she had intercourse.

[94] Defence counsel then proceeded to ask KM about something that happened in 2021 where her son L was charged with criminal offences. KM indicated that MG called her to discuss a plan of action to call the Children’s Aid Society and determine how they could move forward before the police were called. KM indicated that MG essentially ignored their agreement and proceeded to call the police. This upset her because she wanted to be there for her son in the event that he was charged. She was upset that MG called the police “without me”.

[95] Defence counsel suggested to KM that her upset and disagreement about that was the reason she contacted the police to make her complaint about the incidents. KM disagreed. She stated that in the course of dealing with the police with respect to her son’s issues, the officer indicated that if there was something that happened to her, she could tell her story.

[96] KM stated that she did not want to lay charges. She was told to go in and give a statement.

[97] KM agreed that in 2007 she wore braces on her teeth. Defence counsel suggested that during the June 2007 incident, KM tried to give MG a blow job but he asked her to stop because her braces hurt him. KM stated that she could not remember.

[98] Defence counsel suggested that KM called MG and asked her to pick her up after she crashed her car in a ditch. She did not agree.

[99] Defence counsel also asked KM whether in 2019, she asked MG to lie on his tax return so that she could get the baby bonus. She did not agree.

Re-examination of KM

[100] Crown counsel asked KM some questions about her involvement with the investigating officer. KM stated that she did not recall the exact day she first spoke with the officer. She added that the statement took place over the phone.

[101] KM stated that the officer asked her to explain what happened. “It was meant to be a conversation” she said. She added that the discussion was “very broad”.

[102] With respect to how it came about that she gave her statement and reported the incidents to the police, KM explained that “another officer”, who was the officer who dealt with her son in Quinte West suggested that if she “was comfortable” KM should give a statement and “tell my story”. She elaborated that by “comfortable” she meant “if I felt like sharing”.

[103] KM recalled that prior to speaking with the officer, she received no instructions as to what she should say. She stated that she was not with the officer for a very long time before the recording began. She did not recall giving an oath or signing any documentation. She that she did not know what was expected of her.

[104] After being shown her statement by Crown counsel, KM made it clear that there was more than one incident where MG forced himself on her when she would end up having bleeding, swelling and discomfort, but she could not remember the specific details of those incidents.

[105] After being shown another part of her statement it was clear that the officer did not exactly press her for some details. In fact, in one place in her statement, the officer stated, “Okay, in terms of the assaults themselves, and obviously you don’t have to say anything more if you don’t want to answer, by all means don’t answer, was there ever any violence or threat of violence applied when those events were actually taking place?” KM stated that she took this to mean that she did not have to give “x amount of [which I take to imply “extensive”] details”.

[106] KM stated that she was uncomfortable discussing “sexual things” with the two police officers, both of whom were men. She stated, however, that they did not do anything that made her specifically feel uncomfortable. She stated that both officers were in the room for the interview.

[107] Crown counsel asked KM about the complaint against MG with respect to sexually assaulting a woman and being required to be confined to barracks. KM stated that the source of all this information was MG. She added, “I don’t recall all the details”. She did not receive information about his from anyone other than MG. She stated that there was more than one conversation and that the consequence of being confined to barracks occurred within a few months of her finding about the allegations.

[108] Crown counsel asked KM about the injury to her vagina. She stated that she no longer has issues as a result of that injury. The injury lasted a couple of years.

Evidence of SO

[109] The Crown called SO to discuss the disagreement that arose between the parties over L’s involvement with the Police. For reasons I have discussed below this evidence was not helpful.

Evidence of Constable Morganti

[110] Cst. Morganti was the Officer in Charge of the Investigation. He testified that he became a member of the Ontario Provincial Police in May 2021, which I note was about six months before KM made her report.

[111] Upon joining the police service, he received training at the Ontario Police College and Ontario Provincial Police Academy. He then started “on the road” in October 2021. His coach officer was Constable Brown.

[112] He stated that on the day in question, he was dispatched to a call made by KM. He did not receive many details of with respect to what she wanted to talk about. As a result of this, he called her on October 13, 2021. He then saw her in person on October 29, 2021.

[113] With respect to the October 29 meeting, Constable Morganti explained that he was told by Constable Brown a few days before that KM would be attending at the detachment to give a statement.

[114] He recalled that as part of his basic police training, he received some training in investigative techniques and how to deal with witnesses. He has not received specific training in dealing with sexual assault complaints. He had interviewed complainants and witnesses prior to this case, but only in relation to a motor vehicle collision or “incidents not as serious as this one.” This was his first formal, video-recorded interview.

[115] Constable Morganti recalled discussing the interview with Constable Brown. In order to prepare for the interview, he reviewed the General Report that he authored with respect to KM’s call on October 13.

[116] He stated that he did not make arrangements to have the statement sworn or affirmed. He indicated that later, in an unrelated investigation, he learned that this was a mistake. He stated that the OPP does not typically take sworn recorded statements for sexual assault cases unless the allegations take place in the context of an intimate partner relationship.

[117] Constable Morganti indicated that he discussed the interview after the fact with his coach officer. He could not remember receiving any specific pointers.

[118] With respect to the details, he indicated that he always tells the witness that they are about to do an interview and they should provide as many details as possible. They are told that they should tell the truth. He stated, “That is the preamble I give before hitting “record””.

[119] With respect to this interview, Constable Morganti stated that when he told KM, “You can say as much as you want”, he was trying to make her feel comfortable and not like she was being pressured or interrogated. He stated that he wanted KM to feel that this was a “safe conversation”.

[120] He stated that the recording was turned off when he discussed safety planning with KM. He did not take notes of the safety planning aspect of the conversation but he did fill out a form, which he referred to as the LE-239.

[121] Constable Morganti stated that he contacted KM after MG was arrested. After that, he met with her a few weeks before trial for interaction.

[122] He stated that his brief was reviewed by his Sergeant. He stated that he did not get any feedback from his Sergeant.

Cross-Examination of Constable Morganti

[123] With respect to the October 13, 2021 conversation, Constable Morganti called KM at 9:25 at night. He did not record the conversation. He took notes to describe the conversation that took place.

[124] Defence counsel asked Constable Morganti if KM made it clear that she did not want him to lay charges. KM gave many indications that she was hesitant to call the police in the first place. She told him that she “felt ridiculous” to even call the police but she was told that due to the seriousness of the crime, she should come forward.

[125] Constable Morganti stated that he did not tell KM that if she lied there could be repercussions.

[126] Defence counsel asked the officer about Exhibit 2, the Consent to Release Medical Records. He stated that the document was in his handwriting. He did not recall where he got the dates from, but surmised that he was probably trying to “bracket” a range of dates “to be sure that I didn’t miss any relevant information.” He did not remember getting any input from KM about the six-month period.

[127] I asked Constable Morganti whether he had any specific training with respect to sexual assault allegations. He stated that sex-related crimes were covered “in theory” at the Ontario Police College and then there is one day of instruction at the Ontario Provincial Police College where domestic violence cases are discussed.

Evidence of MG

[128] MG is 38 years age. He has a new partner. He has three children, LG who is his child with KM, AG and HG. AG and HG are children with his present partner.

[129] MG is a member of the Canadian Forces. He is posted to CFB Trenton. He has been a member of the Forces for 15 years.

[130] He stated that his grandfather was killed by a drunk driver before he was born. In 1997, his cousin was hit by a drunk driver. MG was 12 at the time. He stated that as a result of this experience, he does not drink and drive.

[131] He stated that LG was charged in relation to an incident involving AG. These allegations came to light on a Sunday while LG was spending the weekend with KM. He stated that he called the duty mental health through the military to find out what to do about it.

[132] He stated that he went to KM’s residence to pick up his son. He met with KM and informed her of the situation. He “gave her the plan” as to what they were going to do. This included to call the Children’s Aid Society and the police the next morning.

[133] The next day, after he took the children to school, they called the Children’s Aid Society. They called the OPP right after they hung up with the Children’s Aid. The police asked him to bring the boy to the station.

[134] MG stated that he had one record of disciplinary action from the military. He went AWOL in 2009. As a result of this, he was ordered to be confined to barracks for two weeks and he received a $400 fine. The record was filed as Exhibit 3.

[135] He denied ever telling KM that he punched another person in the groin.

[136] He stated that he first met KM in May 2007 when he was 21 years of age. She was 16. He was living with his parents in Pembroke and she was living with her parents in Arnprior. He met KM through his friend AB. They started dating June 15, 2007. He remembered that day specifically because it was just before her birthday.

[137] He stated that in 2007 he went to a motel with KM. He remembered the day as July 13, 2007. He remembered this because it was between her birthday and their “one month anniversary”. They were going to do “something special”.

[138] MG stated that he was a victim of sexual assault when he was young at the hands of a babysitter’s son and his friend. As a result of this, he has done counselling and treatment. This apparently happened when he was two. He stated that because of this, he knows that he always needs to make sure that there is consent before proceeding with any kind of sexual intercourse.

[139] He described the motel room where he met with KM. He stated that one parks the car outside and walks in. He recalled that the room had two queen sized beds and a tv. There was a bathroom in back. He recalled that the sheets had a floral pattern. He could not remember the wallpaper.

[140] He stated that the purpose of the motel visit was to celebrate their one month anniversary.

[141] He stated that when they were in the motel room, they sat on the bed and watched tv. They started kissing. He asked KM if she wanted to keep going. KM told him that she was on her period and asked him if that was ok. He said it was. She went to the bathroom and had a shower. He took off his clothes and got into bed. When KM was finished in the shower, she climbed into the bed and started performing oral sex on him. He recalled that he had to tell her to stop because her braces were pulling his hair out. She then got on top of him, inserted his penis in her and started riding him. They then flipped over and they continued to proceed to have sex. He asked her if she wanted him to finish on her or inside her. She told him inside her.

[142] After they had sex, he went to the shower because he had to get the blood, presumably from KM’s period, off him.

[143] After the shower, she went and had a shower. After her shower, they got back into bed, talked, watched some tv and ultimately went to sleep.

[144] He stated that at no time did she tell him that she did not want to have sex or that she was uncomfortable having sex.

[145] He insisted that there was no school party prior to the motel visit and he did not attend any party involving KM and her friends. He stated that this occurred approximately two or three weeks before the motel visit. He also stated that he was not there.

[146] He stated that KM called him after the party because she was “drunk in a ditch”. He drove down and picked her up and took her home. After dropping her off, he drove back to Pembroke.

[147] With respect to the April 2008 allegations, MG stated that he was not allowed to be alone with KM at her house. Either one of her parents or one of the neighbours had to be present. He reckoned that he only slept at her house once or twice. Otherwise, he slept in his car.

[148] He stated that he visited with his newborn son and KM about eight times. Those visits took place at his house in Pembroke. He (or his mother) would go to Arnprior to pick up KM and return to Pembroke.

[149] He denied that he was ever alone with KM in her home. He specifically denied having sex with KM in LG’s bedroom. He stated that when they were in LG’s bedroom, the door was always open.

[150] He stated that he and KM moved in together after he completed basic training at Camp Borden. He estimated that this took place in February or March 2009. He stated that between 2008 and 2009 they were “not officially” together but they spent a lot of time together. He indicated that he rarely went to KM’s home.

[151] He stated that LG moved in with him in June 2019. Shortly after that, he recalled getting an angry phone call from KM that she should call the Canada Revenue Agency and declare that the LG was not living with him so that she could keep the “baby bonus”.

Cross-examination of MG

[152] Crown counsel asked MG when KM moved in with him. He stated that his basic training at Camp Borden lasted about five months. She moved in with him part way through that. He stated that he lived in “the shacks” [1] at first but then he got a PMQ [2] and KM moved in with him then. He believed that this took place in March or April of 2009 or 2010.

[153] Crown counsel asked MG about the fact surrounding his convictions for being Absent Without Leave. MG stated that in 2009, he came home to look after KM and LG because they were sick. He stated that he reported this to his Master Corporal and his Master Corporal said, “Too bad”. He stated that he “took a plea bargain in order to deal with it.”

[154] With respect to the element of the record that stated that he was AWOL between the 10th and 14th of August 2009, he stated, that he “most likely” went home but he can’t remember why he was AWOL. He stated that he was not absent five full days but he agreed to this as part of the plea bargain.

[155] With respect to the element of the record that stated that he was AWOL August 18, 2009, he stated that he had a migraine headache. He stated that he did not report this to the base doctor because they were closed.

[156] With respect to the element of the record that stated that he was AWOL on August 28, 2009, he stated that he slept in. He could not specifically recall what day of the week that was.

[157] MG testified that he remembered July 13, 2007 very clearly. He stated that he paid by VISA but he does not have the receipt. He stated that he inquired with the motel for records, but they did not have a receipt either. He recalled bringing a change of clothes and he worked earlier that day.

[158] He stated that KM walked to the motel. He did not pick her up. He did not bring any food or drink with him. He reckoned that he checked in between 7:30 and 8:00. KM arrived between 8:30 and 9:00. The next morning, they checked out sometime between 10 and 10:30. He recalled that the motel check-out time was by 11:00.

[159] After they checked out they went to McDonald’s. He dropped KM off at the end of her street and went home.

[160] MG stated that he did not tell his parents where he was. He also stated that they did not ask. They did not keep track of him.

[161] He recalled that about a month and half after the motel incident, KM told him that she was pregnant. He testified that he believed that she was pregnant before their motel visit. He also testified that he was not convinced that he was the father of LG.

Re-examination of MG

[162] Defence counsel asked MG to explain why he thought that he was not LG’s father, given the evidence that KM was on her period when the first incident occurred. He stated that he believed that the bleeding was “implantation bleeding”. He learned about this when his present wife went through a similar experience.

Submissions of Defence

[163] Defence counsel argued that MG testified in an honest and straight-forward manner. She maintained that I should believe his denials of the allegations.

[164] Defence counsel argued that MG recalled a number of peripheral issues, including the specific day that the incident happened, going to McDonalds, check in time, check out time, the details of the oral sex that preceded the intercourse, the reason that the oral sex stopped, and the fact that KM was on her period.

[165] Defence counsel suggested that KM’s evidence was not reliable. It was not internally or externally consistent. She had a motive to lie. Her account that MG was disciplined in the military for sexually assaulting someone was wrong. She disagreed with how MG handled the situation involving LG in 2019. She did not mention the sexual assault during the family court proceedings.

[166] Defence counsel maintained that KM was not sufficiently detailed in her account of what took place when she spoke to Constable Morganti.

[167] Nor was she sufficiently detailed when she testified in Court.

[168] Defence counsel argued that her evidence concerning the vaginal tear was problematic. She was convinced her family doctor noticed it but this was not borne out by the medical records.

Submissions of the Crown

[169] Crown counsel argued that I should not believe the evidence of the accused for the following reasons: a) There is no independent evidence with respect to MG’s military record. In this regard, Crown counsel argued that I should prefer KM’s evidence about the nature of the military record because it came directly from MG. [3] b) His explanation with respect to KM’s period as being “implantation bleeding” and the putative denial of paternity of LG was “reverse engineering”. c) His evidence surrounding the details of the hotel room were generic details masquerading as specific ones. d) His evidence was entirely self-serving.

[170] Crown counsel argued that I should find the complainant credible and reliable for the following reasons: a) There was evidence that this was only the second time that KM had sex. She was a sexually inexperienced person. I note that this evidence came in because KM blurted it out. There was no Seaboyer application that would have allowed this issue to be raised. b) She was only 16 years old (or 17, if the first incident took place after July 3). It is unlikely that she wanted to have sex with MG. I note that here the Crown is relying on a stereotypical and mythological view that 16 year old girls do not want to have sex. This is faulty reasoning. I cannot consider it. c) It was highly unlikely that she would agree to have sex while she is menstruating. I raised this as being a stereotypical or mythological view with Crown counsel in his submissions. I note that the Ontario Court of Appeal has now decided in R. v. E.D.J-C 2024 ONCA 48 at paragraph 27 that: … the business of getting into the biological realities of menstruation to draw inferences about what sexual behaviour women would engage in is perilous business. Attempting to predict sexual behaviour for specific individuals based on generalizations about how women behave sexually during menstruation is too fraught with the risk of prejudicial judgment and too uncertain to yield appropriate inferences.

[171] Crown counsel argued that I should disregard the issues concerning the lack of medical evidence with respect to the tear. He maintained that this is entirely understandable. He also maintained that the suggestion that KM made her complaint “out of revenge” for MG’s handling of the incident involving LG. As I set out below, I agree with Crown counsel on these points.

Analysis

[172] 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.

[173] In R. v. W.(D.), [1991] 1 S.C.R. 742, 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.

[174] In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe: R. v. Esquivel-Benitez, 2020 ONCA 160. 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 complainant’s evidence do not necessarily mean that her evidence should be rejected: R. v. J.J.R.D. at paras. 46-48, leave to appeal to SCC refused, 2007 16771.

[175] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as 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, [1995] OJ 639 (Ont. C.A.) at paragraph 33. R. v. HC, [2009] OJ 1979 (Ont. C.A.) at paragraph 26. The credibility and reliability of a witness must be “tested in light of all the other evidence presented.”: R. v. J.J.R.D., supra, at paragraph 46.

[176] 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.

[177] 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.

[178] 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, [1994] OJ 811 (Ont. C.A.) at paragraph 27.

Do I Believe the Accused?

[179] No.

[180] I found MG’s evidence surrounding the issue of parentage of LG incredible. It invited me to wade into the prior sexual history of KM, without the benefit of the kind of detailed consideration that comes when defence brings an application under section 276 of the Criminal Code. It was a conscious attempt to suggest to me that KM was not chaste and therefore the incidents that she reported did not happen.

[181] I also find it extremely unlikely that MG would have contested custody or voluntarily agreed to pay support since the parties’ separation if he seriously contested paternity of the child.

[182] Likewise, I found that the defence theory that KM reported the allegations “out of revenge” for how MG handled the matter involving LG hard to believe. I find similarly with respect to the issue of the baby bonus.

[183] Similarly, I found that the evidence that MG gave about picking KM up when she was drunk in a ditch was simply an attempt to make KM look bad. It added nothing to the analysis in this case.

[184] Finally, I found it odd that MG could not recall why he was AWOL for partial days between August 10 and 14, 2009, but he specifically recalled being absent on August 18 due to a migraine headache and August 28 due to sleeping in.

Does the Evidence of the Accused Leave Me in Doubt?

[185] Yes.

[186] The story which unfolded from the accused has a ring of truth to it. Notwithstanding that I do not believe the accused for the reasons I have set out above, I cannot find that his story does not leave me in doubt.

[187] This case is about two very young people who established a connection while they were both living under the roofs of their respective parents.

[188] The common narrative about “sneaking out” to meet one another at a motel, whether it happened after a school party with KM’s friends, or whether it happened in order to celebrate one month of “going together”, or to celebrate KM’s 17th birthday, makes sense. The Crown asked me to consider the four to five year age difference between KM and MG and find that this altered the power relationship between them. That is not my sense. While I have no doubt that KM was extremely young and naïve, and may have found herself in a situation where she was “in over her head”, I find that MG was also young and naïve. In this regard, how they met is important – MG was a friend to KM’s former boyfriend. Despite the age difference, I find that they are more peers than anything else.

[189] I also cannot reject outright MG’s denial of the second incident. In making this finding, I am specifically not averting to the fact that as suggested by defence counsel, KM could have cried out and been heard by her parents or other such myths about how victims of sexual assault should behave.

[190] Even though I do not believe him, I cannot rule out that what MG told me happened is what actually took place.

Does the Balance of the Evidence Leave Me in Doubt?

[191] I completely reject any notion that KM reported in order to exact revenge for the Canada Revenue Agency baby bonus situation or because MG handled the situation with LG differently then they agreed it would be handled. This theory is nonsense.

[192] KM has obviously wrestled with what happened to her for a long time. The situation with LG merely gave her an opportunity to have contact with the police that she would not otherwise have had. She found what she saw as a sympathetic ear in the Quinte West officer. They encouraged her to come forward and tell her story and that is exactly what she did.

[193] Unfortunately, when she did come forward, her case was assigned to officers who do not have specific expertise in dealing with sexual assault cases. This is a glaring issue in this case, and with respect to the OPP’s response to sexual assault in general, that is extremely problematic. These cases are extremely sensitive and the complainants are extremely fragile. Their complaints should be investigated by someone who, with all due respect to Constable Morganti, is experienced in handling them and has taken specific training with respect to how to investigate them. This was not a case for a rookie police officer.

[194] I therefore do not fault KM for the lack of detail in her statement. As she stated in her evidence, she had never been through this before. She did not know what to expect. She also did not necessarily expect that charges would be laid. She impressed me as being an extremely introverted and shy person. She was embarrassed to talk about this. It must be remembered that she met MG, started a relationship with him and had her first child at the age of 17. What happened to her as a result of her relationship with MG changed the course of her life forever.

[195] Her reticence to talk about this with two male police officers is also understandable.

[196] The lack of confirmation of the tear in her medical records does not mean that she did not discuss it with her doctor. KM was also very clear to point out that even though she discussed the tear with her doctor, she did not discuss the reasons why that tear did not heal. None of this is surprising given my findings with respect to the sort of person she is and how what happened to her has affected her.

[197] Unfortunately, while I sympathize and empathize with KM, the combination of the passage of time and KM’s conscious efforts to block out what happened to her has made KM an unreliable witness.

[198] The problem of lack of detail goes well beyond peripheral details, such as the colour of blankets in the hotel room and whether it had two beds or one. KM either could not be specific or she did not remember the following issues: a) KM could not remember the subject matter of the conversation or the mood of the conversation before or after the sex in the motel. Similarly she could not recall the details of the conversation with MG after they had sex in the bedroom. b) KM could not describe the exact words that she said when she told him no during either episode of sex. c) KM could not say how long the sex in the motel room lasted. d) KM could not recall the details with respect to the sex in the bedroom. There was no evidence with respect to positioning etc. e) KM could not recall whether MG stayed the night or went home after the sex in the bedroom. f) KM was inconsistent in her evidence between her statement to police, in-chief, cross-examination and re-examination with respect to how long the vaginal tear injury plagued her. g) When confronted by defence counsel about the possibility that KM tried to give MG a blow job before the intercourse in the motel room, and had to discontinue because her braces were hurting him, KM could not remember.

[199] Thus, while I believe what KM told me is true, these significant issues with her evidence cumulatively do not permit me to rely on her evidence to the extent that it is safe to convict MG.

[200] I have a reasonable doubt and MG is entitled to that doubt. He is therefore found not guilty.

Released: February 5, 2024 Signed: Justice J.R. Richardson

Footnotes:

[1] I am aware from working in the Pembroke area for the past nine years that “the shacks” is military slang for the barracks on a military base.

[2] I am aware that PMQ is an acronym for “Private Married Quarters”, which is military housing for members of the Canadian Forces and their families.

[3] Given what I know about how the Military Justice System works (See R. v. Harrison, 2023 ONCJ 392 at paragraph 133 and following as well as the Deschamps Report, the Arbour report and other authorities cited there) I am very skeptical about the reliability and accuracy of Canadian Forces records and decisions in complaints involving sexual assault. However, the record that was filed as an Exhibit is admissible and it was open to the Crown to insist on formal proof at the time that it was entered into evidence. See Section 667 of the Criminal Code, as well as various sections of the Criminal Records Act and the National Defence Act.