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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. Gadsby, 2026 ONCJ 220

DATE: April 15, 2026

COURT FILE No.: 23-21003717

BETWEEN:

HIS MAJESTY THE KING

— AND —

TERRY GADSBY

Before Justice Robert S. Gee

Heard on February 14, May 2, June 24, July 16, and December 11, 2025, January 28, 2026

Reasons for Judgment released on April 15, 2026

Sean Bradley....................................................................................... counsel for the Crown

Eric Angevine.................................................................................. counsel for the accused

Gee J.:

Introduction

[1] The accused, Terry Gadsby is charged with one count of sexual assault arising out of an incident that occurred on December 13, 2022. The complainant, E.S., who had turned 18 years old only six days earlier, that day attended a small outbuilding on River Road in Brantford, to receive a tattoo from the accused, Terry Gadsby, who was at the time, approximately 49 years old. According to the complainant, she sought the tattoo to cover self‑harm scars, and she asked the accused to do it as he had given her a tattoo a few months prior. The complainant alleged that while the tattooing itself occurred as expected, the accused initiated sexual activity immediately afterward, despite her repeatedly telling him “no,” “stop,” and “don’t touch me.” She stated that she did not consent at any time and felt frightened, confused, and unsure how to react. Following the incident, she returned home, showered, and later disclosed the matter to her mother. Forensic testing of her camouflage shorts, worn during the tattooing, later revealed the presence of the accused’s DNA in the crotch area, which the complainant said was consistent with having pulled the shorts back on immediately after the sexual act.

[2] This matter had a tortuous history. Evidence commenced on February 14, 2025. During cross-examination of the complainant, the defence sought to confront her with a series of text messages between her and the accused, several of which were from dates after the alleged sexual assault. No application by the accused to vet the admissibility of these messages had been made pursuant to s. 278.93 of the Criminal Code, prior to trial. The trial was then adjourned to allow such an application to take place and ultimately on June 24, 2025, some of these messages were deemed admissible.

[3] The evidentiary portion of the trial then recommenced on July 16, 2025, and the cross-examination of the complainant was completed. The accused chose to testify and began his testimony that day. During his cross-examination, he answered some questions inconsistent with points that had been agreed to in an agreed statement of facts (ASF), that had been drafted by defence and crown counsel prior to trial, reviewed with the accused by his counsel prior to trial, and read into the record at the start of trial. The issue was in the ASF he had agreed he made a particular statement to the police, that he now seemed to be disputing.

[4] This led to the accused then stating it was his intention to bring an application to resile from the ASF. The trial was again adjourned to allow him to do so. Deadlines for the accused to file such an application were set and when those deadlines were missed, extensions were granted. Ultimately an application was never filed and on December 11, 2025, the date set for the hearing of the application, the accused advised he was not resiling from the admission he made in the ASF. It would be his position at trial that he made the statement as agreed to in the ASF, it was just that he could not now recall making it and this would be a factor open to me to use when assessing his credibility.

[5] As a result, on January 28, 2026, the accused’s evidence was completed. After submissions, I advised the parties I would stand the matter down and try to craft an oral judgment that day, given this tortuous history. Notwithstanding my best intentions, I concluded it would not be fair to the parties to give judgment so quickly. Instead, I advised them of my bottom-line conclusion, that I would be finding the accused guilty. A date for sentencing was chosen, and I promised to provide written reasons explaining my finding on that day. These are those reasons.

Facts and Position of the Parties

[6] That sexual activity took place between the complainant and accused, is not in dispute. The issue in this matter is whether that activity was consensual.

[7] At the time of these events, the accused was significantly older than the complainant and had known her mother, C.S., for many years. The accused testified that he and C.S. had been romantically involved after high school, roughly three decades earlier, although he said this was a relatively short-lived, youthful relationship rather than a long‑term partnership. He stated that after the relationship ended, they remained acquainted over the years through occasional encounters and social‑media contact. The accused did not have sustained involvement in the complainant’s life during her childhood.

[8] His accounts varied as to when he first met her. In his police interview he said he had known her “since she was a baby,” whereas at trial he denied this and claimed he first encountered her when she was in her mid‑teens, around 15 or 16 years old, during a period when he was living near the family and learned that she was struggling emotionally, including engaging in self‑harm. Their direct communication increased as she approached adulthood, and the complainant contacted him about tattoos after seeing him at the mall and exchanging phone numbers. The complainant’s evidence was that aside from tattoo‑related discussions, she had no personal or close relationship with the accused and the agreement between them was she would pay the accused for the tattoo she received. The accused’s position is that the two of them agreed that the tattoo would be provided by him in exchange for sex.

[9] The Crown’s theory was that the complainant had made clear, both in person and in text messages, that she intended to pay for the tattoo with money and not sexual activity, and that the accused nevertheless proceeded with sexual intercourse against her will.

[10] The defence position in this case was that the sexual activity between Mr. Gadsby and the complainant was consensual and formed part of this informal exchange agreed to by both parties. The defence argued that there had been ongoing conversations, not fully captured in text messages that were discussed at trial, but allegedly occurring by phone, video chat, and in person, during which the complainant expressed interest in obtaining the tattoo. She had obtained an earlier tattoo from the accused and had not paid for that one, and it was the accused’s position he was not prepared to do the same for this one. That’s why he claimed this arrangement came to be, that they agreed that sexual activity would serve as payment because she did not have money. According to the defence, the complainant repeatedly “pushed” for the tattoo in the days leading up to the incident, contacting the accused persistently and urging him to complete it sooner rather than later. The accused maintained that although discussions fluctuated between money and sexual activity, by the time of the meeting on December 13, 2022, the complainant had agreed to exchange sex for the tattoo.

[11] The defence highlighted inconsistencies in the complainant’s testimony, including her initial claim to have blocked the accused immediately after the incident, which was contradicted by subsequent messages showing continued communication for several days. The defence also challenged her evidence about payment, noting that she gave varying accounts of whether she had $200, $300, or intended to e‑transfer money, and argued that her lack of funds and the accused’s prior unpaid tattoo supported the accused’s belief that sexual activity and not money, was the agreed form of compensation. The defence contended that the complainant’s actions after the incident, including walking with the accused, speaking to him on the bus, and continuing communication afterward, were inconsistent with her claim of non‑consent.

[12] Finally, the defence advanced the position that the complainant’s learning disability and difficulty recalling details affected the reliability of her account, leading to mistaken or reconstructed memories. In contrast, they argued that the accused’s version, though imperfectly delivered due to anxiety, poor recollection, and communication difficulties, aligned with aspects of the complainant’s own evidence and the surrounding circumstances. Overall, the defence maintained that Mr. Gadsby believed he had the complainant’s consent, and that at minimum, the accused’s evidence should raise a reasonable doubt as to whether the complainant voluntarily agreed to the sexual activity in exchange for the tattoo.

Analysis

[13] In this, as in all cases, the accused is presumed innocent, and the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a particularly high standard. It is a much higher standard than that of proof on a balance of probabilities which is the standard in a civil case. Proof beyond a reasonable doubt lies much closer to an absolute certainty than to a finding the accused is more likely than not to have committed the offence, which is how the civil standard of proof on a balance of probabilities is defined.

[14] In R. v. W.D., [1991] 1 S.C.R. 742, the Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives different version of events from the complainant or other witnesses.

[15] The framework, when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. It reminds judges that this is not a simple credibility contest. It is not proper for me to choose which side has the more believable version. The side that tells the better or more believable version, is not because of that, entitled to win.

[16] Also, if I do not believe a witness either entirely or on a particular point, it is not proper because of that disbelief, to simply conclude the other side’s competing version must be true or accurate.

[17] W.D. tells me to approach the case in this manner. First, I should ask myself if I believe the accused or any evidence presented at trial that is inconsistent with guilt. If I do, then the accused is entitled to an acquittal.

[18] The second part of the W.D. framework comes into play if I conclude I do not believe the accused or the evidence inconsistent with his guilt. If I do not, to remain focused on the Crown’s burden, I should ask if I am still left in a reasonable doubt by it. At this stage I must ask if there is a basis to reject this evidence outright. If I find that even though I do not accept this evidence, I am still unable to reject it as either untruthful or unreliable, then I would have to find I am left with some doubt. The accused is entitled to the benefit of that doubt and is again entitled to an acquittal.

[19] If I have found that I do not believe the accused or the other evidence inconsistent with guilt, and this evidence does not leave me with a reasonable doubt then the third part of the W.D. framework would be engaged.

[20] This part of the framework reminds me that even if I have not believed the accused’s evidence and have in fact rejected it in its entirety that does not necessarily lead to a finding of guilt. I must then ask myself if, based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I must be convinced of the accused’s guilt beyond a reasonable doubt based on the evidence I do accept.

[21] Although W.D. speaks of three sequential steps, it does not describe three analytical steps that a trier of fact must pass through, one at a time, in the order mentioned above. It describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused's exculpatory account ("step 1"), complete acceptance of the Crown witnesses' inculpatory account ("step 3"), or uncertainty as to which account to believe ("step 2"). These decisions are all made at the same time based on the same total body of evidence. The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence. See: R. v. Thomas, 2012 ONSC 6653 at para. 21 to 24.

[22] Applying these principles to this case, I find the complainant, E.S., testified in a straightforward, sincere, and compelling manner. Throughout her examination‑in‑chief and cross‑examination, she described the events of December 13, 2022, with a level of detail that strongly suggested a genuine attempt to recount a traumatic experience. She was unwavering in her account that she repeatedly told the accused “no,” “don’t touch me,” and “I don’t want this,” both before and during the sexual activity. Despite extensive cross‑examination, she did not retreat from those core assertions. Her description of the sequence of events, the folding down of the chair, the removal of her shorts and underwear by the accused, and the penetration that followed, remained coherent and internally consistent throughout her testimony.

[23] The complainant’s evidence was also corroborated in material respects by independent, objective evidence. Forensic examination of the camouflage shorts she wore on the date in question revealed the presence of the accused’s DNA in the interior crotch area, which is consistent with her evidence that immediately upon the accused finishing, she pulled her shorts back up. Furthermore, the Agreed Statement of Facts and the text messages introduced at trial substantiate her narrative regarding the circumstances leading to the tattoo appointment and the accused’s behaviour in the days preceding the incident. As well in those messages she explicitly rejects the accused’s suggestion that she give him “cuddles” which he agreed was his euphemism for sexual activity, in exchange for the tattoo.

[24] While there were some inconsistencies in the complainant’s testimony, for example, her initial belief that she had blocked the accused on social media immediately after the incident, later corrected when confronted with the relevant messages, and some uncertainty regarding whether she planned to pay for the tattoo by e‑transfer or in cash, these inconsistencies do not relate to the central question of consent. They are minor, peripheral matters, readily explained by her young age, her learning disability, and the emotional and cognitive strain she described in processing what had happened in the days following the incident. They do not detract from the clarity or reliability of her evidence on the material facts.

[25] That the complainant rode the bus back into downtown with the accused after the tattoo and that she continued messaging him for some time after, as well as the delay in reporting the incident to police does not undermine her credibility. She explained that she spent weeks attempting to understand and process what had happened, struggling due to her learning difficulties and emotional shock. When she eventually disclosed the incident to her mother, she did so after gaining a sufficient understanding to recognize the seriousness of what happened. Her explanation is entirely consistent with common patterns of delayed reporting observed in cases involving vulnerable complainants and does not impair the reliability of her testimony.

[26] In contrast, I found the accused, Mr. Gadsby, to be an unreliable and untruthful witness. His demeanour during testimony was marked by hostility, evasiveness, and frequent refusals to answer questions. He routinely digressed into irrelevant grievances, made accusations against members of the public present in the courtroom, and alternated between claiming not to recall key events and offering self‑serving explanations incompatible with objective evidence. His version of events shifted repeatedly. At various points he claimed the sexual act was pre‑arranged as payment for the tattoo, that it was not planned and “just happened”, that the complainant removed her own clothing, that he did not recall how her clothing was removed, and that he did not remember significant contextual details, including the position in which intercourse occurred. These contradictions went to the core of his narrative.

[27] The accused also contradicted his own earlier statements, including the contents of the ASF, to which he had previously stipulated after reviewing them with counsel. When confronted with these inconsistencies, he attempted to distance himself from the ASF by asserting that he did not remember making the statements. His police statement likewise contained assertions inconsistent with his testimony at trial, including his claim at the time that “nothing happened” and his assurance to the investigator that his DNA would not be found, an assertion later disproven by forensic examination. His explanations for these discrepancies were unpersuasive, often attributing them to frustration with the investigator or a desire to “just get it over with,” neither of which provides a rational or credible basis for the inconsistencies.

[28] Furthermore, the accused’s account was inconsistent with the documentary evidence, especially the text messages entered as exhibits. Those messages reveal that it was the accused, not the complainant, who repeatedly invoked the idea of “cuddles” as consideration for the tattoo, and who expressed dissatisfaction with the complainant’s refusal to engage in such behaviour. The complainant’s message indicating that “it’s not working like that” when he suggests “cuddles” in exchange for the tattoo, directly rebuts the accused’s suggestion that she had agreed to sexual activity in exchange for the tattoo. His attempt to explain this by claiming that the true sexual agreement occurred only on the phone, never in writing, strains credulity, particularly considering the extensive and detailed nature of the text exchanges that were preserved.

[29] Finally, his inability to recall basic aspects of the encounter, contrasted with the complainant’s clear recollection of the same events, further undermines the reliability of his testimony.

Conclusion

[30] Having considered the evidence as a whole, I do not believe the evidence of the accused. His testimony is marred by profound inconsistency, evasiveness, and a lack of internal coherence. Moreover, even if I did not reject his evidence outright, given all these problematic aspects of it, and then when assessed in the context of the evidence as a whole, including the complainant’s credible, and consistent account which was corroborated by the messages and DNA, it fails to raise a reasonable doubt. Finally, the remaining evidence, viewed independently of the accused’s testimony, proves beyond a reasonable doubt that the complainant did not consent to the sexual activity.

[31] Accordingly, applying the framework from W.D., I find that the complainant’s evidence is accurate and truthful, that the accused’s evidence does not raise a reasonable doubt, and that the Crown has proven the offence beyond a reasonable doubt. As a result, the accused is found guilty of the charge before the court.

Released: April 15, 2026

Signed: Justice Robert S. Gee