CITATION: R. v. Bourdon, 2016 ONSC 5707

COURT FILE NO.: CR-14-0188-00

DATE: 2016 Sept 30

ONTARIOO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RENE RONALD BOURDON

Accused

Andrew Scott, for the Crown

Mary Cremer, for the Accused

HEARD: March 18, 19, 23-27, April 28, 29, May 11-15, Nov 23, 25-27, 30, December 1, 2, 3, 14-18, 2015, March 14, 15, 29-31, April 1, 4 and June 13-16, 2016.

Tranmer J.

TRIAL DECISION

TABLE OF CONTENTS

I. PUBLICATION BAN .................................................................................................... 1

II. THE CHARGES ........................................................................................................... 2

III. THE EVIDENCE .......................................................................................................... 7

1. Cell Phone Numbers ............................................................................................ 7

a) Sgt. B. Brooker ................................................................................................. 8

b) Rebecca O’Grady........................................................................................... 10

c) Kristi Jackson.................................................................................................. 12

d) Detective Constable Frawley....................................................................... 18

2. Perry Grey ............................................................................................................. 22

3. M.B. ........................................................................................................................ 27

4. E.C. ........................................................................................................................ 73

5. September 25, 2012 ............................................................................................ 87

6. Additional Follow up by Kingston Police Sgt. Brooker ................................. 88

7. Kenneth McMurray .............................................................................................. 90

8. Stephen Chester ................................................................................................. 93

9. John McCauley ................................................................................................... 94

10. Dr. Mayer .............................................................................................................. 94

IV. LEGAL PRINCIPLES ............................................................................................... 94

V. THE COUNTS IN ISSUE ....................................................................................... 104

VI. COUNT 2 – TERRITORIAL BOUNDARIES ....................................................... 105

Analysis and Decision ...................................................................................... 107

VII. COUNT 9 - PERSONATION.................................................................................. 110

Analysis and Decision ...................................................................................... 117

VIII. COUNT 10 – SEXUAL ASSAULT, August 5, 2012 .......................................... 123

Analysis and Decision ...................................................................................... 129

IX. COUNT 11 – SEXUAL ASSAULT, August 30, 2012 ......................................... 137

Analysis and Decision ...................................................................................... 139

X. SUMMARY OF DECISION ..................................................................................... 143

I. ORDER: BAN ON PUBLICATION

An Order restricting publication in this proceeding under ss. 486.4(1) of the Criminal Code was made and shall continue. This section of the Criminal Code provides:

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

a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347

In addition,

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

TRIAL DECISION

II. THE CHARGES

[1] Rene Bourdon was subject to a Long Term Supervision Order (LTSO) and to the Rules of the Portsmouth Community Correctional Centre (PCCC) in Kingston. He was also bound to comply with instructions given to him by a parole officer respecting any conditions of his LTSO in order to prevent a breach of any condition or to protect society.

[2] The Long Term Supervision Certificate (LTSC) had a start date of November 8, 2005 and an expiry date of March 6, 2014. (Ex. 1).

[3] The LTSC read in part, as follows,

LONG TERM SUPERVISION CERTIFICATE

Name: BOURDON, Rene

FPS: 602987D

LTSO Start Date: 2005/11/08 Expiry Date: 2014/03/06

CONDITIONS OF LONG TERM SUPERVISION AND ACKNOWLEDGEMENT:

I fully understand and accept the conditions of my long term supervision (attached), any special conditions noted below or attached and any instructions given by my parole supervisor in respect to any condition of my release. I understand that if I violate them, my long term supervision may be suspended. I also understand that failure or refusal without reasonable excuse to abide by the conditions of the long term supervision order is an offence under 753.3(1) of the Criminal Code of Canada.

753.3 (1) An offender who is required to be supervised by an order made under paragraph 753.1(3)(b) and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Special Conditions

OTHER

1. Disclose any and all contact to your parole supervisor regarding females with whom you associate or attempt to associate.

Must abstain from drugs other than prescribed medications and over-the-counter drugs taken as recommended by the manufacturer.

Abstain from use of alcohol.

OTHER

1. Not to own, access, or possess pornography.

2. Possession of a cellular telephone will be permitted providing it does not have the capability of taking photographs, and providing it is used with a plan that provides detailed monthly billing in order that your parole supervisor can monitor your calls.

3. Not to have any access to the Internet or possess any computer that has Internet capabilities.

TO RESIDE AT A SPECIFIC PLACE

Must reside at a community correctional centre or a community-based residential facility approved by the Correctional Service of Canada.

I understand that the long term supervision certificate is the property of the parole board and must be delivered on demand of the parole board or of my parole supervisor.

Signed: Rene Bourdon May 24, 2012

Released offender – signature Date

CONDITIONS OF RELEASE

(Long Term Supervision Order)

The conditions that the parole board is deemed to have imposed in respect of any offender released on long term supervision are that you:

(a) on release, travel directly to your place of residence, as set out in your release certificate, and report to your parole supervisor immediately and thereafter as instructed by your parole supervisor;

(b) remain at all times in Canada within the territorial boundaries fixed by your parole supervisor;

(c) obey the law and keep the peace;

[4] The Applicant signed that LTSC. He was permitted to reside at PCCC pursuant to the LTSO and that Certificate.

[5] Mr. Bourdon is charged on a 12 count indictment with the offences of breaching his long term supervision order (LTSO) and committing offences while subject to the conditions of his long-term supervision order. The offences are alleged to have occurred during July, August and September 2012, while he was residing at the PCCC.

[6] Mr. Bourdon pleaded not guilty to the charges. The trial proceeded before me sitting without a jury. The Crown began its case on March 18, 2015. A number of witnesses were called through 2015 in relation to Charter issues.

[7] Counsel agreed that, subject to my decision on the Charter issues, that evidence was to be included as part of the trial evidence.

[8] My Charter decision is dated April 5, 2016. (R. v. Bourdon 2016 ONSC 2113).

[9] The Crown called additional evidence commencing in November of 2015 and into April of 2016 with respect to the substance of its allegations against Mr. Bourdon.

[10] The defence did not call evidence. The defence subjected the Crown witnesses to rigorous cross-examination.

[11] The Crown filed written submissions on June 7, 2016 in respect of all counts.

[12] The defence filed written submissions on June 13, 2016, the date scheduled for final oral submissions on the trial.

[13] In her written submissions, Ex. 1 on Submissions, and in court together with her client on June 13, 2016, defence counsel conceded that the evidence, including that set out in the Written Submissions of the Crown, Exhibit 2 on Submissions, proved the guilt of Mr. Bourdon in respect of counts 1, 12, 3, 4, 5, 6, 7 and 8. I agree that the evidence proved beyond a reasonable doubt that Mr. Bourdon is guilty of those counts. Mr. Bourdon was found guilty of those offences and convictions were registered against him.

[14] These offences were for breaches of the conditions of the LTSO as follows:

Count 1: Without reasonable excuse, fail to disclose any and all contact to his parole supervisor regarding females with whom he associates or attempt to associate, namely M.B..

Count 12: Without reasonable excuse, fail to disclose any and all contact to his parole supervisor regarding females with whom he associates or attempts to associate, namely E.C..

Count 3: Without reasonable excuse, fail to comply with the LTSO, namely not to own, access or possess pornography, in relation to the contents of a smart phone found hidden in Mr. Bourdon's waistline on September 25, 2012.

Count 4: He was in possession of a cell phone, on September 25, 2012, that had the capability of taking photographs and it was not used with a plan that provided detailed monthly billing in order that his parole supervisor could monitor his calls.

Count 5: Without reasonable excuse, he had access to the Internet and was in possession of a computer that had Internet capabilities namely the smart phone found on his person on September 25, 2012. It was not admitted that he accessed the Internet.

Count 6: Without lawful excuse, he failed to obey the law and keep the peace.

This count is conceded based on the convictions on the other counts that were conceded.

Count 7: Without reasonable excuse, failed to abstain from drugs other than prescribed medications and over-the-counter drugs taken as recommended by the manufacturer.

This concession is that Mr. Bourdon breached this condition by trading, selling and providing gabapentin to others; by consuming marijuana with Ms. M.B.; by purchasing and consuming crystal meth with Ms. M.B.. This concession accepts Ms. M.B.’s evidence in this regard as credible and reliable. So do I.

Count 8: Without reasonable excuse failed to abstain from the use of alcohol.

The defence concedes the evidence of Ms. M.B. that on September 8, 2012, Mr. Bourdon consumed alcohol with her. As set out in the Crown submissions, which the defence accepts, Ms. M.B. testified that Mr. Bourdon brought Jägermeister to her residence, and mixed it in the red aluminum bottle that he had previously brought to the Econo Lodge.

[15] The remaining Counts 2, 9, 10 and 11 remained in dispute between the parties and the issues were advanced in their written submissions which I have identified and in oral submissions commencing June 13, 2016. Those Counts are as follows.

Count 2: Without reasonable excuse, fail to remain at all times in Canada within the territorial boundaries fixed by his parole supervisor.

Count 9: Fraudulently personate “Ali” with intent to gain advantage for himself, namely sexual intercourse.

Count 10: Commit a sexual assault on M.B., on August 5, 2012.

Count 11: Commit a sexual assault on M.B., on August 30, 2012.

III. THE EVIDENCE

1. Cell Phone Numbers

[16] The undisputed testimony and the cell phone records confirm who used what cell phone number and when, as follows,

1. [phone number 5805] This cell phone number was used by Mr. Bourdon throughout the relevant time frame and was attached to his flip phone. This cell phone was the only one that was authorized by his parole supervisor. Mr. Bourdon disclosed the records for this cell phone to his parole supervisor and reported who was connected to the telephone numbers disclosed on the records.

2. [phone number 0801] This cell phone number was used by Ms. M.B. in her INQ phone until about August 30, 2012. At that time, she gave the phone which contained a SIM card to Mr. Bourdon, who said he was going to give it to Ali. Mr. Bourdon gave her a new iPhone cell phone with the number [phone number 9221]. Ali began to use cell phone number 0801 on about September 1, 2012 and continued to do so up until September 25, 2012. On September 25, 2012, Mr. Bourdon was searched by police upon his arrest and was found to have hidden in the waistline of his pants, a cell phone which had the cell phone number 0801. That phone had never been disclosed to his parole officer and was not authorized by his parole supervisor.

3. [phone number 0242] This cell phone number was used by Ali, up until about September 1, 2012.

4. [phone number 9221] (9221) This cell phone number was used by Ms. M.B. in her new iPhone given to her by Mr. Bourdon after about August 30, 2012.

[17] Ms. M.B. did get the INQ phone back, but she cannot recall how. At that time, it did not have the SIM card in it. She gave it and her iPhone to the police and consented to them searching them. The uncontradicted evidence is that transferring the SIM card from one phone to another transfers the telephone number from the first phone to the second phone.

[18] The uncontradicted evidence is that Ms. M.B. and Ali communicated only by text messaging. There was no other manner of communication between them.

a) Sgt. B. Brooker

[19] After the arrest of Bourdon on September 25, 201, Sgt. Brooker continued the police investigation which included the following steps in relation to the cell phones relevant to this case.

[20] On October 18, 2012, he received a telephone call from the owner of U[…]. He met with her and she turned over to him, a Rogers envelope addressed to Mr. Bourdon showing his address as U[…]. He took possession of the envelope, secured it at KPD and seized it pursuant to the warrant. After he seized it, he read the contents, which identified an account 669412892 in the name of Mr. Bourdon. (Ex. 8). This account number is the same as on Exhibits 9(a), (b), (c).

[21] On October 22, 2012, he attended before a justice of the peace to swear 2 warrants, one for the 2 phones of Mr. Bourdon being held at PCCC and one for the Rogers document that he had received from the owner of U[…]. The 2 phones were the one that Mr. Bourdon had handed to Correctional Office Golemiec on September 25, 2012, the authorized Samsung flip phone [phone number 5805], and the unauthorized Samsung smart phone found hidden down the front of Mr. Bourdon’s pants.

[22] Ex. 5 is the ITO for the warrant for both phones. In his testimony, the officer adopted the contents of the ITO as truthful and accurate.

[23] With the warrant, he retrieved the 2 phones from PCCC. (Ex. 6A,B,C Samsung flip phone and Ex. 7A,B,C smart phone).

[24] On November 2, 2012, the owner of U[…] contacted him again about three more Rogers envelopes addressed to Mr. Bourdon at that address. These were turned over to the officer, who then seized them pursuant to a warrant. Ex. 9(a) and (b) are identical, showing the same account number as Exhibit 8, with an outstanding balance of $560.01 addressed to Mr. Bourdon at that address with respect to a wireless phone number, [ phone number 9221], in the name of M.B.. The invoices are dated October 3, 2012.

[25] Ex. 9(c) is an invoice dated September 3, 2012 for the same account addressed to Mr. Bourdon at U[…] for the same telephone number and for Ms. M.B.. It welcomes Mr. Bourdon to Rogers and indicates that this is his first bill with the balance owing of $113.41.

[26] On this date, he also met with Ms. M.B. and received her signed consent to search her INQ telephone that had phone number [phone number 0801] (Ex. 10A and B) until August 30, 2012.

[27] On November 13, 2012, at approximately 2:45 PM, he observed the contents of the INQ phone being examined by Detective Constable Frawley.

[28] As of February 4, 2013, he had done a production order to Rogers for the telephone numbers, [phone number 9221] and [phone number 0242]. He had to reissue these production orders and received a reply to these on February 5.

[29] Also, he had done production orders for the 2 telephone numbers, [phone number 5805] and [phone number 0801] and had received responses on December 7, 2012.

b) Rebecca O’Grady

[30] She is a security analyst with Telus.

[31] She identified Exhibits C and D as records for 5805, registered owner Rene Bourdon, and 0801, registered owner M.B..

[phone number 5805]

[32] The registered owner is Mr. Bourdon with a North Bay address. Service started July 3, 2012. The records cover the timeframe July 15, 2012 at 9 AM until September 25, 2012 at 23:59 PM. There was an address change on October 18 2012. The prior address had been B[…] Road, Kingston.

[33] In order to set up the account, the registered owner had to identify himself and go through a credit check, which involved a credit card, MC 524337……3622, Exp. 09/14. Data was included in the plan, but there was a data block on the plan, which would have been put on at the registered owner's request. Only the registered owner can place that block and if he does it by phoning in, he requires the PIN #. With the block on, it cannot access Internet.

[34] This device had no SIM card.

[35] Ex. K are call details. Ex. L are text details.

[36] She explained how a message could be typed on 5805 and sent to itself, p. 6 Ex. L, and then forwarded on to another phone, p.9, Ex. L. “Fwd” would not necessarily appear on the receiving phone.

[37] Ex. C became Ex. 53, the Telus records for 5805.

[phone number 0801]

[38] The registered owner is M.B.. This is a pay-as-you-go phone. Service started on June 30, 2011. This phone had a SIM card and it could access the Internet. By removing the SIM card from this phone and inserting it into a second phone, the second phone would take on this phone number.

[39] Ex. M is call details. Ex. N are text messages.

[40] Comparing Ex. L, 5805, p. 12 with Ex. N, 0801, p.4, shows 5805 (Mr. Bourdon’s cell number) sending a message to 0242 (Ali’s cell number) (at 16:10:12) and then 0242 sending the message to 0801 (Ms. M.B.’s cell number) (at 16:35:54) on July 29, 2012.

[41] There were no calls from 0242 to 5805.

[42] 5805 called 0242 only twice, p. 4, August 25, 9secs. And p. 5, August 30, 2secs.

[43] 0242 called 0801 15 times, Ex. M, p. 3. All but three of these calls were unanswered and sent either to voice message or to Telus to be saved as a message. The other three were of 4 seconds 2 seconds and 3 seconds duration and terminated at 0801.

[44] There is a record that on July 16, 2012, someone named René called from another telephone number to top up 0801. Approval would have been required from M.B., who did approve.

[45] Ex. D became Ex. 54, the Telus records for 0801.

c) Kristi Jackson

[46] Ms. Jackson is the manager of lawful access response at Rogers. She testified as to cell numbers [phone number 0242] and [phone number 9221] and their communication with cell sites.

[47] 0242 was the original phone number that Ali used to contact Ms. M.B. up until about August 30, 2012.

[48] 9221 is the new cell iPhone given to Ms. M.B. by Mr. Bourdon on about August 30, 2012.

[phone number 0242]

[49] Ex. O are the Call Detail Records for 0242 from July 15, 2012, 9:00 AM until September 25, 2012, 11:59 PM.

[50] As at the date that these records were pulled, namely after September 25, 2012, the billing name is Rene Bourdon, with a North Bay address. The username is Steve Porter at the same address. The phone was active since July 19, 2012. One prepays for time on the phone. No identification is required to set up such an account, and no credit check is necessary. The people who can change the account are Rene Bourdon and Steve Porter. They could do so by calling in and simply giving the postal code for the address.

[51] The records show that on August 3, 2012, the billing name and address, and the user name and address were changed. The old billing name of Steve Porter was changed to Rene Bourdon, and the old user name of Rene Bourdon was changed to Steve Porter.

[52] The device using this phone number had a SIM card, all Rogers telephone accounts have one.

[53] One can take the SIM card from his phone and put it into another phone, in which case, the second phone would take on the 0242 telephone number.

[54] This account can allow internet access. It is unknown whether it accessed the internet.

[55] These records begin on July 19, 2012, the date of activation of the number. This is the day after Ms. M.B. and Mr. Bourdon had their first dinner together and talked about their “mutual friend” Bishop (Ali).

[56] The records show that on July 19, 2012, a credit card was rejected. The card ended in 3622. These are the same last numbers as Mr. Bourdon’s card used on August 5.

[57] Ex.58 is a power point that demonstrates how a cell phone will communicate most often with the closest cell site.

[58] It is admitted that PCCC is at address B[…] Road. On Ex.59, close cell sites are shown at Kingston West and Kingston City. There is also a cell site called Queens University, West Campus, at 2 Mowat Avenue.

[59] 840 Princess Street, Kingston, Ontario is the Econo Lodge Motel. It is near cell sites Kingston City and Kingston Downtown.

[60] 1484 Centennial Drive is where Corcan is located. Cell site TM21G is adjacent to that address. This is the Hwy 401/38 cell site.

[61] Ex. O, p. 1 and 2, shows 0242 communicating through cell sites Kingston, Bath and Millhaven and Kingston West over a time frame of four minutes on July 19, 2012. Ms. Jackson described this as an anomaly for the use of the different cell sites. It is unlikely that the phone was moving, as in a car. These communications with these different towers could be the result of lake affect, and do not necessarily indicate that the phone was moving.

[62] Ex. O, p. 6, July 21, 1:03:37 AM, shows a text 0242 to 0801 using Kingston City cell site. There is a corresponding text in Ex. G, p. 8, where Ali texts to Ms. M.B., “Im comming in Kingston ill be there around 4pm.”

[63] At p. 10, July 21, 2012, 2:42:58 PM, is a text 0242 to 0801 using Queen’s University West Campus cell site. There is no evidence that Ali was physically present in Kingston that day.

[64] At p. 10, July 21, 2012, 2:54:18 PM, 0242 uses the Queen’s University West Campus cell site. At 5:09:33 PM to 5:10:02, the Kingston City tower is used by 0242. In corresponding texts in Ex. G, p. 9, Ali explains that he has to go back to Toronto, but Ms. M.B. and Mr. Bourdon should go out together that night anyhow. There is no evidence that Ali was physically in Kingston on that day, or, indeed, on any day.

[65] Ex. 61 shows the Queen’s University West Campus, the Kingston, and the Kingston West cell sites.

[66] Ex. O, p. 11 to 13 is for July 26, 2012. 0242 texts 0801 at 1:20:12 AM through Queen’s University West Campus. There is no evidence that Ali was physically in Kingston at that time.

[67] On July 29, p. 14, 3:03:55 AM, 5805 texts 0242, which then texts 0801. At 3:05:33 AM, 5805 texts 0242. After that, 0242 texts 0801 and after that, there is back-and-forth between 0242 and 0801 until 3:13:03. Even though there are different local towers communicated with, it is not likely that the phone is moving. There is no evidence that Ali is in Kingston on that day.

[68] Pages 15 and 16 of Ex. O are texts between 0242 and 0801 for Thursday, August 2. The cell site being used is Highway 401 and 38, the one adjacent to Corcan (Ex. 60). Corcan is where Mr. Bourdon worked in Kingston. 0242 is communicating with 0801 from 10:00 AM up until 4:16 PM.

[69] August 5, 2012 is the date of the Econo Lodge incident. The texts for that day cover pages 17 through 26, from 12:00:19 AM to 11:30 PM. They are primarily between 0801 and 0242. At 16:31:49, Ali texts “on my way roads are bad.” At 4:50 PM 0242 sends a text to 5805 and then again at 5:02 PM and 5:05 PM and 5:42 PM. After that, the texts are between 0242 and 0801. The only cell sites used during that timeframe are the Kingston, Kingston West, Queen’s University West campus and Kingston downtown. These texts include Ali texting at 20:01:21 that “looks like they will let me go hopefully around 9pm” and at 21:36:56 “ok they r letting me out but I got to go to rene s uncles …. with him until the situation is delt with.” Ali is explaining why he did not arrive at the Econo Lodge in Kingston.

[70] Ms. Jackson testified that between 12:00:19 AM, p. 17, and 12:50:14 PM on August 5, p. 21, it is possible the phone device 0242 was at PCCC.

[71] At p. 21, 2:02:08 to 4:35:38 PM, it is possible that 0242 was at the Econo Lodge. There is a fairly strong assumption that the phone is closest to Kingston Downtown cell site.

[72] In Ex. O, at p. 22, between 5:42 PM and 6:42 PM, it is possible that the device was at Econo Lodge even though it used Kingston Downtown and Queen’s University West campus cell sites.

[73] At p. 27, on August 19, commencing 2:08:03 AM to p. 33, 4:31:06 AM, 0242 and 0801 are communicating through the Kingston cell sites. This corresponds with Officer Knight texting Ms. M.B. that Ali was jumped and is going to hospital

[74] At p. 34, August 29, between 10:25 AM and 2:49 PM, 0242 communicates with 5805 several times and 0801 communicates with 0242 using the Corcan adjacent cell site. At 9:09 PM the Amherstview cell site is used by 0242, and then 0242 goes back to using Queen’s University West campus in Kingston West cell sites. This is the night Mr. Bourdon drove Ms. M.B. to E.C.’s home in Amherstview.

[75] The number of text messages sent or received on 0242 is 2277, since it was activated on July 19, 2012.

[76] The number of text messages between 0242 and 0801 between July 19 and September 25 are 1622. This is approximately 40 every day on average as Ms. M.B. did not have 0801 after August 30, 2012. Ali texted on 0801 after August 30, 2012.

[77] The only cell sites ever used in this time frame by 0242 are the local Kingston cell sites. This is significant because the evidence is that Ali lived in Toronto, and was never in Kingston, and that on one occasion, he texted to say that he was leaving Toronto on the train and then that he would have to stop in Belleville.

[78] Ex. 63 is the Rogers phone records for 0242. (Ex. O are excerpts).

[phone number 9221]

[79] As of the date the records were pulled after September 25, 2012, the billing name was Rene Bourdon with the North Bay address, and the username was M.B. with the same North Bay address. This phone had been active since August 29, 2012, the date that M.B. says the accused gave it to her. It was cancelled December 5, 2012.

[80] Exhibit 57 shows that the initial address was PCCC. Then it was changed to U[…]. Then, on October 18 the address was changed to the North Bay address.

[81] This is a regular customer account which requires identification verification when the account is opened. The person would require three pieces of identification plus a clean credit file. This phone was activated by Rene Bourdon.

[82] Ex. P are excerpts from Ex. 64, the call detailed records for 9221 from August 29 to September 25, 2012.

[83] The first text from 5805 to 9221 on August 29 at 9:10 PM utilized the Amherstview cell site. At 10:09 PM, 0242 communicates with 9221 through the Amherstview cell tower. This is consistent with the testimony of Ms. M.B. that she spent that night with Ms. E.C. at her home in Amherstview. This is consistent with the records for 0242 showing at 9:09 PM usage of the Amherstview cell site. Also, in Ex. G, p. 74, Ms. M.B. texts Ali to use her new phone [phone number 9221].

[84] On August 31, Ex. O, p. 36 and 37, 0242 uses the Highway 401/38 cell tower then Kingston West and then Kingston Downtown from 6:38 PM up to 8:44 PM. There is no evidence that Ali was in Kingston that day. This is the day after Ms. M.B. had sex with Mr. Bourdon so that Ali would have surgery.

d) Detective Constable Frawley

[85] Detective Constable Frawley, a member of the Kingston police, was accepted by the court as a qualified expert in computer forensic examination and cell phone examination and analysis. The defence did not dispute his qualifications in that regard.

[86] He examined the contents of 4 cell phones, Mr. Bourdon's authorized flip phone, the unauthorized smart phone found hidden in the waistline of Mr. Bourdon on September 25, 2012, Ms. M.B.'s INQ phone and her iPhone.

[87] He examined and analyzed the first two cell phones pursuant to a search warrant that was not challenged by the defence. Ex. 36. He examined Ms. M.B.'s phones with her consent.

Mr. Bourdon’s authorized flip phone – Number 5805

[88] This phone had no SIM card. From this phone, he was only able to extract the contacts. Ex. 37, Tab 2. It did not have camera capability.

Unauthorized cell phone found hidden in Mr. Bourdon’s waistline – Number 0801

[89] This phone had a SIM card. The report concerning the analysis of this phone is found at Ex. 37, Tab 3. The SIM card permits access to the Internet. The telephone number for the phone is one of the characteristics of the SIM card. This SIM card could be used in another phone with the same carrier, in which case the 0801 phone number would then be attached to the new phone. This phone could acquire video and pictures. It could access the Telus version of the Internet including Google search and Facebook. It could also do text messaging and multimedia messaging, which would include text as well as pictures and videos.

[90] The officer testified that the charger in Ex. 6a with the flip phone and the charger in Ex. 7a with this phone would both charge either phone.

[91] The call logs demonstrate that this SIM had previously been in another phone. The officer determined that this same SIM card had previously been in Ms. M.B.'s INQ phone.

[92] The call logs show that on September 21, 2012, 5805 called this phone. They show that on September 25, 2012, Ms. M.B.'s iPhone 9221 called this phone. They show that on September 25, 2012 Ms. M.B.'s iPhone SMS messages this phone and says “Ali answer me back. I think Rene is going back to jail. He came here and he was followed.” The SMS messages from 9221 begin September 14, 2012 as shown in the In Box. The SMS messages sent information shows messages sent to 9221 commencing September 13, 2012.

[93] The officer also reported on the extracted data images from this phone. He showed photos that would have been received with a text or an SMS message. He demonstrated that one of the photos was taken by an INQ mobile camera on July 10, 2011. This photo was brought into this phone, the unauthorized waistline phone, through the use of another memory card, for example, the same SIM card found in the unauthorized waistline phone on September 25, 2012. At page 51 of Ex.37, Tab 3, photo line 44, there is a photo of M.B. taking a picture of herself using her INQ phone on January 22, 2012. The officer testified that that photo was transferred to the unauthorized waistline phone by the same SIM card. Photo 57 is a photo taken by M.B. on her INQ phone on July 31, 2012.

[94] The officer demonstrated that video shown on this phone is also seen on the INQ phone, and also that some of the pictures shown on this phone are seen on the iPhone.

[95] He was unable to determine whether the unauthorized waistline phone had accessed the internet. His examination suggested to him that it had not accessed the internet. He could not determine whether it had a plan to permit it to access the internet.

INQ

[96] This phone could not be examined because there was physical damage to it. It did require a SIM card, although there was not one in it at the time that it was examined.

[97] The officer made three videotapes of the contents of this phone. Ex. 43. Hard copies of the contents are found at Ex. 41, Tab 2. There were 33 videos on the phone. There were 101 pictures on the phone. He testified that the videos and photos appeared to have been created on the INQ. There are two photographs of Mr. Bourdon, taken by the INQ on August 28, 2012.

[98] He testified that there were 119 messages in the inbox. The messaging incorporated both text messaging and multimedia messaging. He also took screenshots of the contents of the sent messages which were sent to 5805 and to 9221.

[99] The officer demonstrated that the INQ used to have the 0801 phone number and therefore the same SIM card that was found in the unauthorized waistline phone on September 25, 2012.

[100] He testified that the SIM card that worked in this phone would also work in the unauthorized waistline phone, as they were both Telus phones.

Ms. M.B.’s iPhone

[101] The officer also examined and analyzed Ms. M.B.'s iPhone. He prepared four reports from the data extracted from this phone, MMS contacts and notes, Ex. 37 Tab 6, relevant chats, Ex. 37 Tab 5, SMS timeline, Ex. 41 Tab 1 and user taken pictures and videos, Ex. 37 Tab 7. These reports are contained collectively in Exhibit 42.

MMS contacts

[102] He showed 7 contacts in his report including “Ali My Love” for 0801 and “Ali Shauve” for 0242 plus ali.shauve@facebook.com and Rene Bourdon for 5805.

[103] In his report, he included 66 out of 104 MMS messages. These are a form of text messaging that includes pictures, videos or sound.

[104] His report also showed messages sent by 9221 to 0801 on September 23, 2012 and on September 2nd and 3rd, 2012, which included pictures.

Relevant chats

[105] He included 6 of 190 iMessage chats in the report in Ex. 37. He demonstrated a chat between 9221, the iPhone, and 0801. The iPhone contact list referred to 0801 with the reference “Ali My Love”. 9221 sent movies in this chat on September 22, 2012.

SMS timeline

[106] The iPhone SMS messaging starts on August 29, 2012, and runs to October 18, 2012.

[107] He demonstrated a message from 0801 to this phone, 9221. He demonstrated a message from 9221 to 0242 known as “Ali Shauve” in the iPhone contacts on August 29, 2012.

Pictures and videos user taken

[108] He found 431 images and 25 videos. He demonstrated that a photo taken on the iPhone on September 2, 2012 was sent via MMS message to 0801 about 8 min. later. There were other examples of this being done.

[109] He concluded that the unauthorized waistline phone communicated with the iPhone through messaging, pictures and videos.

[110] He also concluded that the iPhone and the INQ phone communicated with each other.

2. Perry Grey

[111] Mr. Bourdon’s statutory release began on September 23, 2011. Although Mr. Jansen was his initial intake parole officer, Mr. Grey became his parole supervisor after one or two weeks.

[112] His sentence under the LTSO began January 9, 2012. Ex. 1, the LTSO, is dated May 24, 2012, and is signed by Mr. Grey and Mr. Bourdon. It is not the initial document but a replacement because Mr. Bourdon lost the original one.

[113] Mr. Grey met with Mr. Bourdon on January 9, 2012. They reviewed the conditions of his LTSO, “he is well-versed in his conditions. He knew exactly what his conditions were.” They argued about the cell phone before Mr. Bourdon was authorized by his parole supervisor to have a cell phone. Mr. Grey authorized Mr. Bourdon to have one cell phone only. It was a flip phone with number [phone number 5805]. Mr. Grey had no knowledge of Mr. Bourdon using any other phone or cell phone number. As a required condition in the LTSO, Mr. Grey required Mr. Bourdon to provide to him the detailed phone billing records and to identify the people with whom he was in contact and whose numbers appeared on those records. Mr. Bourdon wrote the names of the people on paper adjacent to their numbers, Ex.17 to 22.

[114] In those detailed telephone records for 5805 disclosed by Mr. Bourdon to his parole supervisor, Ms. M.B.’s phone number 0801 appears only once, in Ex. 22, July 11, 2012. These records span July 11 to August 10, 2012. Mr. Bourdon did not identify her with that number in his written notes to Mr. Grey as he did for other persons.

[115] The excerpts of text messages received by Ms. M.B. at 0801 from 5805, between July 11 to August 10, 2012, Ex. G, demonstrate many texts each day. Although Mr. Grey testified that he was overwhelmed by the volume of information that Mr. Bourdon provided to him, clearly the extent of the relationship with Ms. M.B. was not included in such disclosures, although mandated by his LTSO. It is significant that on July 25, 2012, Ali texts Ms. M.B. concerning Mr. Bourdon “just text him his parole officer monitors his calls.”

[116] Mr. Grey testified that Mr. Bourdon wanted the alcohol condition removed. He also wanted the wording concerning female contact changed. He submitted that request to the NPB.

[117] No changes to the conditions of his LTSO were ever made.

[118] They had conversations about the consequences of breaching his conditions. Mr. Grey told Mr. Bourdon that the onus was on him. If a breach occurred, it could be a criminal charge instead of an automatic revocation.

[119] With respect to the females with whom he associates or attempted to associate condition, Mr. Grey told him that he would not be concerned with a simple “hi” in the hall. Mr. Grey told him that any relationship or friendship or progress into a relationship had to be reported. By way of example, Mr. Bourdon reported on May 18, 2012, a contact with “Deb” at the Frontenac Mall. Mr. Grey told him that if that relationship changed from a simple “hi”, Mr. Bourdon needed to tell him immediately. Ex.15 is a letter dated May 22, 2012 from Mr. Bourdon to Mr. Grey reporting the contact.

[120] With respect to the standard conditions “territorial boundaries”, Mr. Grey instructed Mr. Bourdon that he would have to stay within the Kingston city limits. He was told that he could only leave the Kingston city limits with a travel pass. Mr. Grey was very specific with Mr. Bourdon asking him to be very specific about where he was signing in or out to. It was explained to him that the consequences of breaching the territorial boundaries would be a criminal charge. Mr. Grey agreed that he did not discuss the specific limits, but merely told Mr. Bourdon he was confined to the City of Kingston limits. Mr. Grey agreed that that description was pretty vague. It was demonstrated that Mr. Bourdon would have no experience with what the city limits of Kingston were. Mr. Grey agreed that Mr. Bourdon would be dependent on him to orient him as to the limits of the City of Kingston.

[121] Mr. Bourdon reported another female contact to him named M.B. in late July. Mr. Grey instructed Mr. Bourdon that he was to have phone contact only with her. Her name came up again on September 10. Mr. Bourdon did not know her last name. Mr. Bourdon said she went to Narcotics Anonymous. Mr. Grey told him that he was not to have her in his car. Mr. Grey said to him that it would be permitted for him to go to the coffee shop with her if the Narcotics Anonymous group was going there. Mr. Grey told him that he could only be in a public area with her. He was not permitted to be at her residence.

[122] At p. 90 in the Offender Management System (OMS), Mr. Grey made an entry for September 19 that he met with Mr. Bourdon. Mr. Bourdon disclosed the female contact. Mr. Grey noted that Mr. Bourdon was to only communicate with her in public or at Narcotics Anonymous until he did a Community Assessment. There is no note identifying this female person, however, Mr. Grey recalls this to be a reference to M.B.. The note references a female at Narcotics Anonymous. Mr. Grey agreed that it is odd that he did not name the female person in this note. He agreed that it is “real important to identify the female contacts with respect to supervising Mr. Bourdon.”

[123] Mr. Bourdon brought her name up again on September 21. Mr. Grey said that he would meet with her the following week to conduct the necessary Community Assessment (C.A.). Mr. Grey said that she was not to be in his car and they could only be any public place to gather. Mr. Bourdon said that he did not know where she lived. The C.A. would involve Mr. Grey meeting with her and discussing Mr. Bourdon's history, asking about the nature of their relationship, where it was headed and where it had been. After such a C.A., Mr. Grey would establish how and where contact could occur. Until that was done, Mr. Bourdon was not allowed to visit her at her residence. There is a note in the OMS confirming this meeting.

[124] On September 21, Mr. Grey was told by another parole officer Golemiec that he saw what he thought to be Mr. Bourdon’s car at an address on U[…] Crescent. That parole officer did not know the exact address. On September 24, the parole officer and Mr. Grey drove by the address. Mr. Bourdon's car was not there at that time.

[125] As of September 24, the address at U[…] Crescent had not been reported to Mr. Grey by Mr. Bourdon. He knew of it only to the extent that the other parole officer had pointed it out as where he had previously seen Mr. Bourdon’s car. It is undisputed that Ms. M.B. resided at this address.

[126] Mr. Bourdon talked to him about M.B. on September 24. Mr. Bourdon wanted him to do the C.A. that day at noon. Mr. Grey said that he couldn't and told Mr. Bourdon to tell her to contact him. Mr. Grey told Mr. Bourdon that he could not be with her anywhere except in a public place and that she was not to be in his car and he was not to be at her residence. Mr. Bourdon said he did not know where she lived.

[127] The OMS entry for September 24 is that he and Mr. Bourdon again spoke about M.B.. Mr. Bourdon wanted Mr. Grey to do a CA.

[128] The C.A. was set up for September 25, 2012 at Tim Horton’s.

[129] Mr. Grey noted in the OMS that Mr. Bourdon was not to be with M.B., other than in a public place, that she is not to be in his car and he is not to be at her residence. There is no note that he told Mr. Bourdon about the information he had received from the other parole officers that he had been seen in the company of females or from officer Golemiec. In fact, on September 24 he notes in the OMS, “no new contacts other than M.B.” and that he had no concerns.

[130] Mr. Grey testified that prior to September 25, he did not know where M.B. lived or that she could not drive even though the CA was arranged to take place at a Tim Horton's close to her home. He said that she phoned him on September 24.

[131] On September 25, 2012, at U[…], Mr. Grey asked M.B. about her relationship with Mr. Bourdon and how long she had known him. She said he had been to her home 10 times or more. Mr. Grey wanted to know if there had been anything sexual between them. She said there was nothing sexual, that they were just friends.

[132] Mr. Grey noted in the OMS for September 25, p. 92, that she advised him that she met Mr. Bourdon, “June or July… through her boyfriend Ali… Met at Narcotics Anonymous… There to bring her lunch.”

3. M.B.

[133] She was born […], 1993. She was 18 years of age in the summer of 2012. When she was living in Kingston in 2012, she was a Crown Ward receiving financial assistance from the CAS. At the relevant time, she lived at U[…] Crescent. As of that date, she may have had her grade 9 education.

[134] She began using Crystal meth when she was 15 years of age. She became addicted. However, by the time she was living in Kingston, she had been clean for 9 or 10 months.

[135] She met Mr. Bourdon at the Frontenac Mall in the middle of July or so. He approached her and asked her for a light outside the mall. She gave him one and he told her that he was new in town and starting up a business. He asked for her number and she gave it to him because he was looking for friends and he looked like he needed a friend.

[136] She had an INQ prepaid Telus cell phone in her name, number [phone number 0801]. It was red and black with the sparkly “little kitty” sticker on it. She identified exhibits 10A and 10B as her phone.

[137] Very soon after meeting Mr. Bourdon, her mind started changing about him. He was very persistent in calling, leaving voicemails and texting, in such a “short period of time for someone I just met.”

[138] Ex. G contains excerpts from her cell phone number 0801, which was used by Ms. M.B. until about September 1, 2012. At p. 1, is a text dated July 16, 2012, that she received from Mr. Bourdon within days of their first meeting. She cannot recall if there was any prior communication. She eventually agreed to go for dinner with him at the Kingston Center, “the Panda”. The dinner was on July 18, 2012. She learned that he was a resident at a halfway house, that his charges were drugs, and that they knew someone mutually. She knew of a male person named Bishop through her ex-boyfriend. They had been in jail together. Mr. Bourdon told her that he was best friends with Bishop, like an adopted brother. She had seen Bishop while with her boyfriend at a bus stop on Centennial Drive, in Kingston

[139] At Ex. G, p. 4, July 19, is the first text from Bishop using [phone number 0242]. This is the very next day. At Ex. G, p. 5, July 19, she responds to Bishop by text. Bishop indicates that she and Mr. Bourdon should be more than friends. She testified that her texts in response were to set the record straight by stating: “impossible.” “Rene and I are not or will ever date.” She had no romantic intentions with Mr. Bourdon, “absolutely not.” Her feelings in this regard never changed.

[140] She continued to text with Bishop, and came to know that his name was Ali. Bishop was just a nickname.

[141] The relationship with Mr. Bourdon continued because Ali asked her to give Mr. Bourdon a chance as a friend. The three of them were to go bowling on July 21, but Ali was unable to show up. He lived in Toronto. She and Mr. Bourdon went to the Cloverleaf Bowling Lanes, across from the Kingston Center. Ali texted to say that his fiancé’s mother was having a heart attack. Ali encouraged her to go bowling with Mr. Bourdon without him.

[142] She had a Facebook page and Ali asked to be a friend. She went to his page, and saw a picture of a man lifting weights. She testified that she thought that the person could have been the person that she had seen at the bus stop, in regard to complexion and height.

[143] She testified that she saw that Mr. Bourdon used a black flip phone, with a phone number ending 5805. He used this phone to text her. She also saw that he had a silver, same style, flip phone which he kept in his car on the driver’s side.

[144] In the text message found at Ex. G, p. 12, July 25, she tells Ali that she is not pleased with the interaction between Mr. Bourdon and her. She thinks that Mr. Bourdon thinks there's a potential for being more than just friends. She told Ali that Mr. Bourdon: “Just doesn't interest me.” In her testimony, she described her relationship with Rene Bourdon at this point as acquaintances. Over time, they became friends.

[145] Also over time, she became more than friends with Ali, “romantic feelings were developed”. One night, Ali told her that he was no longer in love with his fiancée and that he liked her. The feeling was mutual. He told her that he, Ali, had left his fiancée.

[146] He asked her to send pictures and videos of herself to him, including sexually explicit photos. She did so. At Ex. G, p. 14, on July 27, she sent pictures to him and he responded, “a pic and a girl”. To her, this meant, “I was his girl”. This is when the more intimate relationship began.

[147] She would text Ali from the time she got up in the morning until she went to bed, all of the time.

[148] She said that she was pretty much with Mr. Bourdon together all of the time.

[149] She testified that one of the first things she and Mr. Bourdon did together was go to NA meetings. He picked her up at her house and they would go in his car.

[150] They would also hang out at her house, initially, not often, but within a few weeks after they had met, it would be almost every day. He told her that he and Ali had known each other since they were young. Mr. Bourdon’s family took Ali in. He told her that he and Ali were best friends. Ali was like an adopted brother to him.

[151] Sending pictures to Ali became a regular occurrence. She hesitated when asked to describe what type of photos. She said they were sexually explicit photos of her not clothed. He sent her two photos and a video. She testified that in the video, there was a clear picture of someone masturbating, but she could not see who. One of the pictures was very dark also. It appeared to be of genitals. One photo was of him standing in front of a mirror without any clothes. It was very clear. She thought it was very similar to the person she had seen at the bus stop.

[152] She asked him to send more pictures to her. She did this all the time, but these were all he sent. His excuses included no camera, phone broken, light not good. She also recalled seeing some modeling pictures of him. These photos were clearly, professionally done. The person in that picture looked similar to the person in the mirror photo.

[153] On about July 31, Ali and Ms. M.B. were planning to meet face-to-face for the first time. When asked what the plan was, she said, initially, she could not recall, “think we were going to rent a room in a motel.”

[154] On July 31, Ali texted her to bring a blindfold, a gram of weed and book a room at the Super 6. This is the first night that they were going to be together physically and intimately. She testified that they were now in a romantic relationship. When asked how she could become romantically involved through texts, she replied, “He was the one, he was everything I wanted him to be. I loved him.”

Sexual Assault – August 5, 2012

[155] August 5, 2012, is the date of the hotel incident. She testified that Mr. Bourdon picked her up and drove her to the hotel. When testifying the next day, she corrected herself. She took a cab to the Econo Lodge, picking up Mr. Bourdon on the way. The room was in her name because he was a parolee. She had no criminal record. She signed for it. His credit card number was written on a piece of paper. She identified her signature and initials on page 3 of Ex. 4, the hotel paperwork from Econo Lodge. Mr. Bourdon brought candies, fruit and whipped cream.

[156] She testified that they got there at about 12:30 PM. This accords with the hotel paperwork. Ex. 4.

[157] Mr. Bourdon mixed juice in the bathroom out of her sight. He mixed it into a red aluminum bottle. She identified this as Ex B, which he had left at her house on a later occasion when he was drinking alcohol, Jägermeister. “The exact bottle”. The red aluminium bottle was later marked as Ex. 48. She drank a cup of it. He did not drink any. She thought it was juice because he told her it was. It had been in a Crystal Light type package. They also had some fruit. They went outside where she took about four puffs of a joint which she had rolled. She could not keep her eyes open. She felt very heavy, very slow and very lethargic. She had never felt like that on that amount of marijuana. Her vision and hearing were foggy and very impaired. She went back to the room, laid down on the bed that they had been playing cards on and she immediately fell asleep over the covers.

[158] She believes she slept for about seven hours. She woke up on several occasions and felt like someone was pressing up against her breasts, bum and vaginal area. Someone was tracing her vaginal and breast areas as if with an index finger and rubbing. This was over her clothing except for her breasts where there was some touching under her bra.

[159] She would become awake and aware but her body could not move. She thinks she woke up about five times. On one occasion that she woke up she was wearing the blindfold. Ali had messaged her and told her to put the blindfold on. Mr. Bourdon offered to help, but she did it herself. One time she shouted out, “Rene Rene!”, but he did not respond.

[160] Near the end, when she was waking up, she knew someone was touching her breasts and rubbing over and under her clothes. She decided to let it happen and then catch whoever it was. She said, “What are you doing”. No response. “Rene, what are you doing?” No response. She took the blindfold off and he was standing to the left of the bed in the corner and smoking. He was an arm’s length away from her. No one else was present. She asked him, “why did you do that.” He said he was trying to grab her phone, which was by her foot.

[161] There was no further discussion between Mr. Bourdon and her that night. It was awkward. He stayed a little longer. He left to sign in for 10 PM. Before he left, he took a photo of her. He said that Ali wanted a photo. She was just laying there on her bed. He took the photo with his phone.

[162] At some point during the incident, she was awake enough to go on a “texting spree”. She texted Ali and a couple of other people.

[163] She testified that she did not consent to any of the touching, rubbing or pressing, “absolutely not.”

[164] Her testimony is confirmed by the text found at Ex. G, p. 24 to 28, August 5, that she did not know which hotel she was going to until she received this message at 11:27:07, from Ali, “The motel is on princess st Its called EconoLodge.”

[165] At Ex. G, p. 26, August 5, at 8:00 pm, is a text message to the effect that Ali has been arrested and he thinks they are going to let them go around 9 PM. Ali texted later that he was released into the custody of Mr. Bourdon’s uncle.

[166] Throughout this time, 8 PM until 9:43 PM., she was half awake and half asleep. She felt very heavy and she felt impaired.

[167] She messaged S., who came over to the hotel. The texts show this. They smoked more weed and then went for a drink. She still felt heavy, slow. She told S. that something happened, but she didn't specifically name Mr. Bourdon. She said that someone was touching her. She said that she did not specifically name Mr. Bourdon to S. because it had to be obvious that it was Mr. Bourdon.

[168] The Crown asked her why she did not report this to the police. She spent the night in the hotel and went back to her home the next day. She texted Ali what had happened. Ali made what she thought was a good point that if she was that messed up then it was likely that Mr. Bourdon with all the medications that he was on was messed up too. Ali also made the point that it could have been another friend who had come by who had touched her.

[169] In the text messages in Ex. G, 11:30 pm, at p. 92 on August 6, she tells Ali that Mr. Bourdon touched her at 9:00 – 9:20, not long before he left.

[170] The text messages of August 6, 13:06, confirm that she is feeling like Mr. Bourdon is guilty, but she was hesitant because Mr. Bourdon and Ali were close, like brothers. Ali texts her, “did you tell anyone please don’t”.

[171] Ali laid out his recollection of the events of that night. For everything that she said, he had a reason why it happened. She became furious. He asked if it was touching or feeling. She got defensive.

[172] By the end of the text conversation with Ali on August 6, she was feeling sorry for Mr. Bourdon. Ali convinced her that because of her accusations, Mr. Bourdon had become suicidal. Mr. Bourdon had had the weed tested and the doctor told him it was laced, so he had no control.

[173] On August 7, Ali texted her that he had spoken to the doctor. The weed was bad. Mr. Bourdon is suicidal.

[174] She did not consider calling the police. Ali texted her that Mr. Bourdon and another guy tried to smoke the same stuff and felt different. It was laced. So Mr. Bourdon did not know and couldn't be held accountable. In addition, Mr. Bourdon was upset and she did not want her accusations to cause him to take his life.

[175] On August 9, Ali texted her that Mr. Bourdon had five mild heart attacks because of the stress due to the bad weed, but he did not know it because he was high. She learned from Ali what had happened to Mr. Bourdon. He had smoked more of the weed later with another guy. He felt sick and had the heart attacks. He was pretty stressed because of her allegations. The impact on her of this information, was that she knew how messed up she had been, and believed that the weed was laced, and she assumed it must have been worse for Mr. Bourdon. As a result of Ali’s texts, she concluded that “he wasn't technically responsible for his actions,” i.e. touching her at the hotel. Her texts to Ali at Ex. G, p. 40, 02:28 AM confirm her testimony.

[176] Therefore, she decided that she had to talk to Mr. Bourdon, that he really needed a friend and that she would try to help him through the state he was in. She could not recall if she texted Mr. Bourdon, but Ex.G, p. 41, 12:02 to 12:03, August 10, 2012, shows that she did and said that they would work through it as friends, that he was not responsible for his action.

[177] On August 19, someone who identified himself to her as Officer Knight used Ali’s phone number to text her that Ali has been jumped by a gang and had suffered a broken arm, and a slight concussion.

[178] On August 21 at 11:00 pm., Mr. Bourdon texted her that Ali was in a semi-coma. The nurse said he wanted a picture of her. She sent two. She understood that there was pressure on his brain from when he had been jumped. The doctors had missed that he was suffering from internal bleeding. She believes that the picture she sent was not sexually explicit. She tried to send it straight to Ali, but he was not getting it, so she sent it to Mr. Bourdon to send on to Ali.

[179] On August 21 into the 22nd, Mr. Bourdon texted her that the nurse was saying that Ali wants a picture of her whole body. Ali has suffered a stroke and requires surgery. Dave is a good friend of Ali and was using Ali’s phone to text to her about this information. Ali had done cocaine, which triggered the internal bleeding. Ali had to be taken to hospital because of his bleed in the head. M.B. felt terrible. “I couldn't think of losing him”.

[180] From midnight to 1 AM, August 22, Dave texted that the nurse said that they have his head open and the doctor has just started. These are the text messages that lead up to M.B. getting the crystal meth and smoking it with Mr. Bourdon at the Legion later that day.

[181] On August 22, she and Mr. Bourdon smoked crystal meth because she learned that Ali was ill. She arranged to buy it and he paid for it. He drove her to pick it up. He had two little puffs through a pipe. They did this because there were complications with Ali. He went into the hospital. Mr. Bourdon was stressed and said he was going to get high. Because she was in recovery, she tried to talk him out of it. Mr. Bourdon said he could not get through the night without getting high. She tried to resist, but then she gave in. What she smoked was quite a bit for her because she'd been clean. They smoked in the parking lot at the Legion. He wanted to join the dart league. She smoked some before they went into the Legion and then again afterwards. He only smoked before they went into the Legion. They joined as members. Within the first hour of smoking, they talked about the hotel night. He brought the subject up. He asked her if he really did it. She said yes. He said wow he was really sorry. He was surprised. He told her that he didn't remember anything and that he was really messed up.

[182] On August 23, Mr. Bourdon texted with her to confirm that he did use the crystal meth. “It was good and I liked it.” He also said in that text, “I just finished a joint.”

[183] She testified that following her relapse on this day, she would use crystal meth on a regular daily basis. She did it because she was a recovering drug addict and she was emotional over Ali’s surgery and medical issues. It was easier to use than to come down. She said she used it again with Mr. Bourdon at least 5 times, but that he did not always smoke it. She cannot recall another specific instance where he did smoke the drug.

[184] On August 25, Mr. Bourdon texted to her that Ali got her a ring. Two hours later Ali texted that he got her a ring. She testified that he was expressing how much he cared for her and that she made him happy. “We became engaged”. She accepted the ring.

[185] Also on August 25, Ali texted to her: “I want the 3some and he is the only one I can trust.” She disagreed to doing a threesome with Mr. Bourdon. This topic had originally been brought up when she was high. She said it made her angry that Ali would include Mr. Bourdon. She texted to Ali that she would do a threesome, “I would, but not with Mr. Bourdon.” She freaked out that he would suggest Mr. Bourdon, of all people. She texted, “Sorry but no I will NOT do it with him Rene. Absolutely not.” That night Ali went back into the hospital.

[186] On August 25 around 11:00 pm, Mr. Bourdon texted her that Ali was off the machine, but can't talk. Dave snuck his phone into him so that he could at least text. Ali had to go to Michigan for treatment. She understood that Ali was bleeding from the nose and the head. Dave texted her from Ali’s phone at 23:26:01. She says in the text to Mr. Bourdon, “I caused all of this. From what I said”, meaning with respect to the threesome talk. Telling Ali that she would not do it with Mr. Bourdon, caused Ali, in her mind, to become very stressed and to bleed requiring that he be hospitalized. “I hated myself because I was the cause of all that.”

[187] On August 27, she texted Ali that she took some of Mr. Bourdon’s gabapentin pills last night. Mr. Bourdon had told her that the high was similar to weed. At 5 PM, she asked Mr. Bourdon to bring her some more pills and he brings them to her 10 minutes later.

[188] On August 29, Ali texted about E.C. and wanted a picture. He wanted to make magic for Mr. Bourdon and Ms. E.C.. She had known E.C. for about a month at this point. They are no longer friends. Ali was asking M.B. to help hook Mr. Bourdon up with Ms. E.C.. Later that day, Mr. Bourdon drove M.B. to E.C.’s home in Amherstview for the two girls to have a sleepover.

[189] Mr. Bourdon became friends with E.C.. The three of them hung out at NA and a couple of times at M.B.’s house. They would grab a coffee at Tim Horton’s, located at Clergy and Princess Streets.

[190] On August 30th, Ms. M.B. was given a new phone from Mr. Bourdon and Ali. She was told by Mr. Bourdon that Ali wanted her to have a new phone and Mr. Bourdon went out and got it. It was an iPhone, with phone number [phone number 9221]. Mr. Bourdon brought it to her house for her. She thought it was registered under Rene. She said that she gave her old phone, the INQ phone with number [phone number 0801], to Mr. Bourdon to mail to Ali.

Surgery in Exchange for Sex with Mr. Bourdon – August 30, 2012

[191] On August 30 at 1:00 AM, Ali texted her that he was afraid to have the third surgery. Ali asked her to sleep with Mr. Bourdon so that he would have the surgery. She understood that he needed surgery for his head, and that if he didn't have it, he would die. She told him that she will do it if that's what he wants. She testified that love doesn't come around in her life too much and she would do anything. “At that point I was willing to do anything.” Ali texted that he couldn't make her do that. But he said that the surgery could be the following night. Ali texted her that she needs to tell Mr. Bourdon that she will do it and then he will take the surgery. Ali texted, “if it doesn't happen. I'm gone”. The next thing that happens is, that Mr. Bourdon texted her, saying that he just got a call from the hospital because Ali agreed to take the surgery. She texted Mr. Bourdon that, “him and I have a deal”. Mr. Bourdon asks, what deal? She texted, “you and I are going to fuck.” Mr. Bourdon protested and said he cannot do it. She told him that she made a deal with Ali “he would have the surgery if I had fucked you to repay him”. Mr. Bourdon was reluctant, but she told him that there was no time for jokes. He had to decide. Mr. Bourdon asked her when it was going to happen, “I will only if you want.” She told him it will happen tomorrow, meaning later this day, August 30.

[192] She understood that Mr. Bourdon had paid for Ali’s surgery, a total of about $20,000. She thought that Mr. Bourdon had saved the money used to pay for the surgery. He was working in a program for parolees. Both Ali and Mr. Bourdon told her that Mr. Bourdon had businesses and Mr. Bourdon’s father had businesses. Ali told her that he did not want Mr. Bourdon to pay for the surgery because Mr. Bourdon had already done so much and had given up so much. By this, he meant Mr. Bourdon’s freedom, he was wrongfully convicted and was suing the police. Ali told her all of that.

[193] She was asked how she felt about Ali at that point. She said that she was heartbroken, “I couldn't imagine the person I loved… He was everything to me and everything I wanted him to be”.

[194] As of August 30, 2:42 AM, she was still using her old phone number 0801 and texting Ali at 0242. The plan to have sex with Mr. Bourdon so that Ali would have the surgery was made by text while she was spending the overnight at E.C.’s. She told E.C. about what was going to happen and why. E.C. told her not to do it. In fact, she told E.C. that she would not do it because she didn't want to be looked at differently and she didn't want Mr. Bourdon to be looked at differently by E.C..

[195] She said that at this point, E.C. and Mr. Bourdon were acquaintances, not friends.

[196] The morning of August 30, 2012, she left E.C.’s and took the bus from Amherstview to her house. She was planning on going through with the plan. She had a couple of glasses of wine. She said she could not be sober for the encounter with Mr. Bourdon. The wine relaxed her. She did not do any drugs. He came to her house. He did not do any alcohol or drugs.

[197] She laid out the guidelines to him. He listened and she assumed that he agreed. She said that he was not to touch her. She told him that it was strictly to be vaginal penetration with his penis.

[198] She was naked from the waist down, lying on her floor. He tried to touch her vagina with his fingers. She took his hand away and asked him what he was doing. He did not respond. His hand or fingers did not penetrate her vagina.

[199] He tried to perform oral sex on her by putting his head down near her vagina. She asked him what he was doing. She pushed him away with her hand and shin. She told him that that was not agreed upon.

[200] He penetrated her and vaginal sex occurred on her living room floor. A condom was used. She believes that he ejaculated. It lasted about two minutes.

[201] There was no other touching.

[202] She went to the bathroom and when she came out he was folding the blanket and crying. He said he felt terrible for doing that to his best friend (Ali). She assured him that it was not his fault. He got dragged into it. She pointed out that she didn't give him much choice. It was the only way that Ali would take the surgery was if she slept with Mr. Bourdon. She testified that she told him: “I wasn't taking no for an answer”.

[203] She was asked by the Crown whether she ever had any romantic intentions with Mr. Bourdon. “Absolutely not”.

[204] She was asked whether she ever wanted to sleep with Mr. Bourdon. “Absolutely not”.

[205] She was asked whether, but for the issue concerning Ali, she would have slept with Mr. Bourdon. She replied, “No”.

[206] She was asked whether she consented to him touching her vagina with his fingers. “No”.

[207] She was asked whether she consented to the attempt at oral sex. “Absolutely not”.

[208] After this sexual encounter, they went outside for smoke. They picked up apples and she walked into his car. He became affectionate, close to her. Before he left, he asked for a hug. She gave him a hug.

[209] They communicated later that day. She felt it was not appropriate to hug anymore. He was now texting to her new phone. She had given him her old INQ phone 0801 before he left after the sex. She understood he was going to send it to Ali because his phone was broken. The INQ had a SIM card in it which went with the phone to Mr. Bourdon to be shipped to Ali. She left the photos on it.

[210] In a text, Mr. Bourdon told her that he only had sex with her because Ali wouldn't have surgery and she asked him to do it. She told him that he had nothing to do with it, that he got dragged into it. She told Mr. Bourdon that she couldn’t do the physical contact, hugging, or anything with him in the future, and never to speak of it again.

[211] On August 30 at 3:00 AM, nurse Becky texts her using Ali’s 0242. Ms. M.B. texts “You type the same way Ali does.” The nurse said that Ali had his surgery. He lost blood, but he was good.

[212] On September 1, Ali was using 0801 to text to M.B. at 9221, her new iPhone.

[213] On September 4, 01:48 AM, Ali texted her, that he's going to be there Saturday. He would like to celebrate with her and Mr. Bourdon. They were planning for the night that Ali is coming. She was going to get Jägermeister for her and Ali. Mr. Bourdon paid for it because she was not 19.

[214] From September 6 into September 7, Mr. Bourdon wanted crystal meth and her to get it, and to do it with Ali. Ali wanted to do it one last time. She was trying to quit again, but she agreed to do it one last time. They were trying to arrange to get the drug for Saturday. On Saturday, September 8, 2012, Mr. Bourdon came over to her house and they both drank the Jaeger while waiting for Ali to come. He was mixing his in his red aluminum bottle. He had more to drink than she did. Ali did not arrive. He had been arrested apparently. After they had a few drinks, they went somewhere in his car and smoked some crystal meth. She had most of it, but he had more than he had ever used before. They had gone to her friend’s house to get it.

[215] On September 12, Ali was in the hospital. His doctor texted her using Ali’s number, now 0801, she using number 9221, saying he was able to hold his food and he was producing blood. He was planning to move to Kingston to be with her on the following Saturday.

[216] On September 15, Ali texted her that he was leaving on the train at 4:47 PM. He told her to go ahead and drink. Mr. Bourdon was with her at her house. Ali did not arrive.

Ali has died

[217] On September 16 at 07:22, Mr. Bourdon texted that he was coming over to her house. He arrived crying and using a cane. He needed to tell her something: ALI HAD DIED. Ali had been in Belleville at a gas station, in the bathroom and he died. They both cried their eyes out.

[218] At Ex. G, p. 89, September 17, is a text that she is lead to believe Ali made intending, that if he died, it would be given to her. She understood it was being sent by Mr. Bourdon’s uncle using Ali’s phone number, now 0801.

[219] On September 17, she texted Mr. Bourdon “you and I will never be more than friends.” She told him that because in his final note, Ali told her that he wanted her to be with Mr. Bourdon and give him a chance. Mr. Bourdon had asked what she thought about that.

[220] She was coming down from the meth and was extremely emotional. She felt like she had lost the perfect person. She became suicidal. She told Mr. Bourdon that she was going to donate her organs. At Ex. H, texts excerpts from 5805, p. 13, September 19, are texts that confirm that she was going to go to the hospital and Mr. Bourdon telling her that Ali is alive and in witness protection. She testified that Mr. Bourdon sent a ton of texts saying he had good news, telling her to get off the phone with her friend. ALI IS NOT DEAD. He was in the witness protection.

[221] She resumed her relationship with Ali. She still had never met him. She had no other communication with him other than text.

[222] On September 25, she was sleeping in the living room of her home when Mr. Bourdon came down through her landlady's residence. She had told him never to do that. She was very angry. He bought her poutine. A couple of minutes later Sgt. Brooker came to her door with Perry Grey, his probation officer. She did not tell them the truth when questioned about Mr. Bourdon. She was vague because she knew the circumstances between him and the police. Given his lawsuit against the police for being wrongly convicted, she thought he was being harassed, in trouble for no reason.

[223] After 12:52 on September 25, she texted Ali about Mr. Bourdon’s arrest.

[224] She has never heard from Ali since.

[225] She believed Ali to be a real person.

[226] Her belief in this did not change until she spoke to Mr. Bourdon’s father the next day. He had come to get Mr. Bourdon’s car. She asked him how to get in contact with Ali. He asked, “Who?” She said “Your adopted son Ali?” He replied, “That is bullshit I don't know an Ali.”

[227] She then called the parole officer and told him a lot of the stuff that she should've told him previously, such as that she had not been truthful with him the day before. She did this because reality had set in. She now believed that Mr. Bourdon was impersonating Ali. So she informed the parole officer about the Econo Lodge, the sexual encounter.

[228] The Crown asked her how she felt when she came to this realization. She teared and needed a moment to compose herself. She was genuinely upset for the first time during her testimony. “I felt destroyed. Nothing seemed real in my life for the last few months.”

[229] She testified that during the summer, she had requested to speak to Ali on the phone and that she tried to call him quite often. He either made up excuses or just didn't pick up. She understood that after one of his surgeries where he was on life support and tried to remove the machine, he damaged his voice. After that he was insecure about his voice.

[230] With respect to the marijuana that she had smoked with Mr. Bourdon at the Econo Lodge, she used some of it again that evening with her friend S. and then again on August 8. On those two occasions there was no reaction such as the one she had earlier in the day on August 5, when she first smoked it with Mr. Bourdon. Ali explained in the texts that it could have been cut on a table with some cocaine and that's why she reacted as she did the first time.

[231] The cross-examination dealt with matters such as how eager Ms. M.B. was to give her phone number to Mr. Bourdon, a complete stranger at the outset. It dealt with such matters as to how ludicrous the whole Ali scenario and drama surely appeared to Ms. M.B.. It also dealt with suggesting that Ms. M.B. played along with what she knew was a ridiculous situation because she enjoyed taking risks. She was also cross-examined as to why she did not report the alleged sexual assaults to police and as to how she could continue a friendship with Mr. Bourdon after the August 5th incident. The cross-examination also challenged her evidence as to her condition at the Econo Lodge on August 5th.

[232] Within 30 minutes of meeting him by chance at the Frontenac Mall she gave him her phone number. It was put to her that that was a pretty short period of time for her to give out her phone number. She replied that she felt it was appropriate in the circumstances. She was asked the question a second time and agreed. She agreed that that gave him an avenue to contact her at a later date. It was pointed out that she gave him her correct number. She is aware that in circumstances where she wants to bow out without being rude she could've given a false number. She's done that before. She agreed that that would give him the opportunity to contact her in the future. She agreed, but said that it was within boundaries, although she did not say these to him. She didn't expect it to lead to the frequency of texting that she then experienced from him. She agreed that it indicated that she was agreeable to being friends. She said she was indifferent as to whether she made new friends or not.

[233] She did not think that he was picking her up. She said that she told him she had a boyfriend and that she was only interested in being friends. He said the same thing. It was pointed out to her that they really had nothing in common. Nor did they speak of anything in common at this first meeting. She said he'd asked for a lighter, they were both smokers. She did not think that he was hitting on her.

[234] She agreed that in giving her phone number to him, she understood that there would be future contact, to get together, to get to know each other as friends.

[235] On July 17th, 22:23, the texts show that they're planning to meet for dinner. It is pointed out that this is within days of meeting a stranger. It was put to her that the friendship was developing quickly. She said it was not a friendship. She said that events were happening “not quickly, averagely.”

[236] While at dinner with him on July 18, she thought there was more to his story. It was put to her that she did not buy his story that he was in town to start a business. She said it was not so much the business issue, just that there was something else that he was not telling her. At the dinner, she learned that he was living in a halfway house. It was put to her that therefore she knew that he was not in town to start a business. She said that she knew tons of people who faced obstacles but were still able to be successful. She said she did not think that because he was in a halfway house he would not be able to start a business. It was put to her that she knew at that point that he was not starting a business. She testified that it did not cross her mind.

[237] At the dinner, he told her that he had been convicted of criminal offences.

[238] It was put to her, that at the dinner he told her that he had been convicted of sexual offences. “Absolutely not.” In chief, she said he told her the convictions were for drug offences. It was put to her that he told her that he disagreed with the convictions. “Absolutely not”. It was put to her that he told her that he was appealing. “No”. It was put to her that he told her that he was suing the police. “No”.

[239] Ex. G, p. 4, 17:13:34, on July 19th is the first text that she received from Bishop. She agreed that this started her entire relationship with Ali. She said that Ali was why her relationship with Mr. Bourdon started. It was pointed out to her that she knew absolutely nothing about Bishop except that he had a criminal record, had been in jail with her boyfriend and lived in the halfway house across from Frontenac Mall. She agreed that it was because Bishop told her to that she decided to continue her relationship with Mr. Bourdon. She added, “I did not know what Bishop's convictions were.”

[240] It was put to her that she was taking the word of the stranger who was nothing to her. She agreed. It was put to her that it was ridiculous to take the word of the stranger. She said, “No. When someone reaches out, where I was in my life and our talk at dinner, I felt I could help Rene.”

[241] It was put to her that all of this sounded pretty risky. She said she didn't think so. It was put to her that she likes to take risks. She answered it depends on what type.

[242] Defence counsel then listed all of the things that she and Ali did not talk about or know about each other. The first was whether or not Ali worked. She said she knew that he did, he told her that Mr. Bourdon helped him start a business in Toronto. They invested together. The text at Ex. G, p. 4, July 19, 17:31:42 from Ali stated to her: “He has a lot of money He help me to open a store” is proof of her testimony.

[243] Defence counsel suggested that she did not know where he lived in Toronto. With respect to his biological family, her answer was that she knew that he had come from a destructive family and that Mr. Bourdon’s family had taken him in. Mr. Bourdon and he were like adopted brothers. I note that there is a text where one of them refers to the other as “bro”. She testified that they talked mostly about Mr. Bourdon. She could not recall messaging about world events or politics. She said that she did come to know that his last name was Nadam. But she learned this while playing a matching game with Mr. Bourdon.

[244] It was pointed out that, from the Facebook pictures, the 2 pictures that she received from him in the video, she could not identify the person shown to be the person that she saw at the bus stop. She agreed that the best she could say was they were similar. She testified, however, that she did not see why he would send her pictures of someone else. She agreed that she was only guessing that the Facebook picture was the same person she had seen at the bus stop. It was put to her that she didn't care if the person shown on the Facebook was the same guy as at the bus stop because she liked what she saw on Facebook. She disagreed. She disagreed that because she liked the look she was content to go along. “I was content that it was his picture”.

[245] It is pointed out that she sent many photos to Ali. As it progressed, these included explicit sexual photos. She agreed. On July 27, Ali texted her to send dirty pictures. This is 8 days after his very first message to her. It was put to her that now she is sending pictures of herself to a stranger. In fact, by now he is saying “a pic and a girl… Wonderful day”. At this point, 8 days, she is his girlfriend. She says there has been a significant exchange with him during that time. “He was everything that she wanted him to be”. “He was no longer a stranger to me”.

[246] It was put to her that she knew that this was very risky behaviour. They had not met. He was sending her pictures. She agreed to be his girlfriend. Her response was that they texted all day, every day and that it did not seem risky, to her.

[247] The modeling photos sent to her by him were professionally done. She said that modeling photos can make the person look different than in real life. She said it was very possible that it was the same person that she had seen at the bus stop.

[248] It was put to her that she was falling in love with professional photos, and she knew it. She replied, “No. You do not fall in love with muscles. You fall in love with the person.”

[249] Ex. G, p. 16, 17, July 31, 01:58:37, Ali texted Ms. M.B. “see if I can come down this Sat r Sun.” This was to be her first in person meeting with Ali and they were going to have sex. She was asked how between July 19 and 31 (12 days, through text only), it had turned into a romantic relationship with him. She responded, “He was the one, everything I wanted him to be”. It was put to her that she knew nothing about his background. She replied no. It was put to her that she knew nothing about how he supported himself. She responded no. In both cases, meaning that was not correct. It was put to her that she knew nothing about his biological family. She disagreed. It was put to her that the only thing she knew was that he had spent time in jail and had a criminal record. She disagreed. It was put to her that all she knew about him was that he was just a good-looking guy. “Absolutely not”. It was put to her that she knew nothing about him and that she was okay with that. “Absolutely not, I was open to meeting him because I knew quite a bit about him”.

[250] It was put to her that this was a risk, to meet for the first time face-to-face in a hotel room. She responded no, they spoke a lot daily. She agreed. There was an element of the unknown. It was put to her again that she must have realized that this was “risky”, “not risky at all?” She responded that, she'd seen him (at the bus stop, not introduced, not speak) but hadn't met him face-to-face, yet.

[251] She was asked whether she did not consider it odd that for this very first meeting, Ali asked her to bring a blindfold, condom and weed. She replied yes, but that they had not discussed that she would wear it when he walked in. She thought that it was meant for later in the night. She did not agree that it was not romantic. It was put to her that surely this seemed like a Colossal Joke? She replied no. It was put to her that she was taking a risk but that it was okay to take a risk because she found it exciting. “Yes, to meet the person who was perfect.”

[252] At Ex. G, p. 64, August 25, 00:07:05. Mr. Bourdon texted her: “He got you a ring….You know what that means. He is madly in love.” That is the day that she got engaged. From July 19 to August 25, is 1 month, 6 days. They had never met face-to-face, never spoken on the telephone, only by text. It was put to her that she didn't even know the sound of the voice of her own fiancée. She agreed, but said that was not that unusual. “Today texts are our letters”. It was put to her that that was risky behaviour but she was okay with it. “I agreed to be engaged to the perfect man. Everything I wanted him to be, he was.” It was put to her that she knew nothing about him, she said she did… He was charming, although he had a bit of a history he deserved a second chance, “he made me feel special”.”

[253] It was put to her, “did you create a fictitious character for yourself”. “Absolutely not”. You are having a fun summer? “I lost my sobriety. My clean time. Because of all of this”. “You are content to keep the status quo with Ali because you are having a heck of an adventure?” “Absolutely not”.

[254] On August 25, 16:32:48, Ali texted: “3some with Rene… only 1 I can trust”. Later on, the very same day that he and she become engaged, he asks her to do a 3some with Mr. Bourdon. She said that she was very angry when he first proposed Mr. Bourdon (although apparently not at the suggestion of a 3some).

[255] She agreed that he did give her an ultimatum that if she did not sleep with Mr. Bourdon, he would not have his surgery. But she said that was an ultimatum of life and death. “My thoughts were very much on him and his life.” “Once Ali and I finished talking, it was the only possible way I could save him. I didn't give Mr. Bourdon a choice!!!” She denied that she was engaging in “crazy behaviour”.

[256] She was asked whether it did not seem odd to her that the man she loved was demanding that she have sex with someone else. She responded, “of course I did. Mr. Bourdon said no when I asked. Ali was adamant that the only way he'd have the surgery is if I did it. It took time for me to convey this to Mr. Bourdon. It was put to her that she didn't give Mr. Bourdon a choice. “Rene didn't want to, but he was understanding. It was needed to save a life. I couldn't walk away. He was going to die if I walked away. How could I? This is not about a 3some. It is his life to repay Mr. Bourdon who paid for his surgery. His life was in my hands.” This demonstrates the depth of her belief and commitment to the existence of Ali as a real person who needed surgery. She believed the scenario was real, that she had no choice but to do it to save a life, and she also believed that she had to convince Mr. Bourdon to do it, that he was reluctant. She believed that Mr. Bourdon had used the money that he needed to appeal his convictions to pay for Ali’s surgery. She believed that Ali felt he had to pay back Mr. Bourdon.

[257] It was put to her that she was still doing drugs during the summer of 2012. She replied, No, “I did not relapse on to Crystal meth until after I had met Mr. Bourdon.” She acknowledged that she still had her contact for weed and that she smoked weed fairly regularly during the summer. “I don’t deny that.”

[258] On August 2, she texted Ali that she is going out to a bar. It is put to her that she was drinking a lot that summer also. She responded that that was not correct. She denied that she drank a lot that summer.

[259] Ali asked her if she is “bringing some booze for Sunday. Do you have any?” Answer: “I don't have any. Not old enough to buy”.

[260] On August 3, she texted “I went to beach got drunk”. She responded that she remembered that day. She went to the quarry. She had one cooler. It was extremely hot and sunny out and she got drunk. It was put to her that she was partying and getting drunk. She said she got drunk due to the weather.

[261] She was further cross-examined that during the relevant time she was smoking a lot of weed and getting drunk and partying often. She admitted to smoking weed, but denied that she was drinking a lot. She said that when she smoked or used meth she did not drink.

[262] It was put to her that when she smoked weed, she liked to drink. “No, I don't. I am not a huge drinker at this point in time. My form of partying was using crystal meth and with that I did not drink.”

[263] It was put to her that Ali told her to book the room, and that she did it. (Just like she got the blindfold, pot, and condoms that he told her to get). She testified: “No, I did not book the room. I signed for the room because it was put in my name.” I note that the text of August 5 at 11:27, Ali told her where the hotel was, “the motel is on Princess Street. It’s called the Econo Lodge.” She testified that until then she did not know where it was.

[264] It was pointed out that during the August 5th hotel incident, Ex. G, p. 108, 109. August 5 13:20:53 to August 6 14:00:40, it is seen that she is texting with R.. She had told him that Ali was coming to town.

[265] At 15:05:05, Ali texted her to wear the blindfold when he comes into the room. She did not respond to this message, but testified that she knew about the request.

[266] From 15:56:56 to 16:28:25, there are 4 texts with the landlady re the cat.

[267] From 16:31:49 to 16:52:27, she texted back and forth with Ali. In these, it is confirmed that Ali told Mr. Bourdon to wake her up, she was sleeping, he couldn't wake her. Ali texted her that Mr. Bourdon said he doesn't feel well either.

[268] From 19:15:54, is a one-half hour of texting back and forth with R. again.

[269] It was put to her that there is no mention that she cannot move in any of these texts. She responded, “not at this point”, but at Ex. G, p. 27, 20:03:35 and at 20:50:08, August 5, she texted Ali “I almost fainted. That stuff is weird.”

[270] It was suggested to her that she was tired because she had been smoking and drinking all afternoon. She responded, “No, I had 4 puffs and no alcohol.”

[271] She had said in chief initially, that it was at this point, August 5, 16:59:06, that she last felt Mr. Bourdon touch her although she had finished that answer with “I am not certain”.

[272] It was pointed out to her that this is 5 PM and that she had testified that Mr. Bourdon had a sign in time of 5 PM and that he never missed a sign in. Furthermore, she had testified that he did not have his car. The texts show that they took a cab to the motel. It would be a 10 min. drive to the halfway house. He'd have had to take a cab or the bus. It is put to her that it would be impossible for him to sign in if he was still at the motel at that hour. “Looks like it. My memory is not good for that night and I'm not good with times.”

[273] At Ex. G, p. 92, on August 6, at 23:32:56, she texted to Ali that Mr. Bourdon touched her between 9 and 9:20 PM. This is what she had told the crown, in chief. It was suggested to her that she testified that when she looked at the clock, she saw that it was 923pm. It was put to her that that was a pretty exact number. She tied that to a photo having been taken of her by Mr. Bourdon. It is pointed out to her that she did not use that precise time in this text message. It was put to her that she was making that time of 923 up at trial. She responded, no, that she thought she had said it in a statement. This was confirmed in re-examination, where she testified that she tied down that time, “there was a photo taken of me at 9:23 PM.”

[274] It was suggested to her that since 8:03 PM, she had been waiting for S.. She replied, “No”. It was suggested to her that she was making plans to go out with S.. She said that she was not waiting for S..

[275] After S. messaged that she is at Will’s, M.B. messaged to S. that she's “just waiting for someone. I'll text you later and we can go from there.” M.B. testified that at that time she was waiting for Ali.

[276] It is put to her that “she is in the process of potentially entertaining a notion of going out with S..” M.B. responded that she had a friend with her, Will. Will went to the bar and S. came to the motel. They rolled a joint and smoked it and then went over to the bar.

[277] It was suggested that this was inconsistent with spending the first meeting and first intimate encounter with Ali. She responded that a few minutes at a bar was not going to hurt in view of the fact that S. was with Will, and she could bring Ali, 1 drink and then back to the room.

[278] Q: “You're open to the potential plans with S.?” “Yes”.

[279] It is put to her that , in all of the circumstances of having almost fainted, being touched by Mr. Bourdon, Ali coming to meet for the first time and for sex, it is odd that she continued to plan to party with S.. She responded that, No! One drink, not a party. It was put to her that she had more than one drink that night. She responded, no.

[280] It was put to her that the texts show that S. came into town specifically to see M.B.. M.B. replied, “No, her parents got into a fight, and she texted to say that therefore she was coming into town.” After she got to town, 1 hour later, she was at her friend, Will’s, and messaged, “I want to drink (mentions this for the first time). We should go to Tommy's.” On my reading, the texts support M.B.’s testimony as to how this meeting developed.

[281] In my opinion, it cannot be said that there was any prior planning put into getting together with S. to party and drink.

[282] Cross-examination disclosed three contradictions in Ms. M.B.’s testimony.

[283] M.B. said S. did not bring weed to motel. The texts indicate she did.

[284] M.B. said she and Rene drove to motel. The texts say cab.

[285] M.B. testified initially that 4:26 PM was the last touch.

[286] There was no evidence of prior inconsistent statements to police or during the preliminary inquiry. She did change her statements of September 25 to Mr. Grey and Sgt. Brooker, after her conversation with Mr. Bourdon’s father.

[287] With respect to the hotel incident, it was pointed out that she was in text conversation with three people Ali, R. and Wilson. It was suggested that she was thinking very clearly. She responded, no, that her mind was still foggy.

[288] It is put to her that she never asked R. or Wilson to come keep her company. She responded that Wilson is in Toronto, and that if one knew R., one would know there was no point in asking for his help, even though during the texting he had expressed that he continued to care for her. She said he cared about a lot of people, “I wasn’t that special.” This point is the whole key to the Ali relationship. She testified that, “Ali made me feel special.”

[289] At Ex. G, p. 29. 13:06, she and Ali were texting with respect to the hotel room events. They argue over what occurred. It is put to her that she was told that “Rene is potentially suicidal.” She testified, “No, he was suicidal.” It is pointed out to her that she did not report the incident of August 5th to the police. She explained, as she had in chief, and as the texts show, that Ali had asked her not to. Ali explained Mr. Bourdon's health, Mr. Bourdon was suicidal. She was convinced that he was down on himself for what he'd done, when he was not in control of his actions, because he too was messed up on the weed. This is why she did not go to the police.

[290] It is pointed out that she continued to get close with Ali and that she continued her friendship with Mr. Bourdon. She responded that over the course of time they grew closer. The whole suicidal thing got to her, the fact that he was not in control of his actions. She gave in.

[291] It was put to her that she would never continue as a friend with Mr. Bourdon if he had in fact touched her. She responded, perhaps that would be, if Ali had not asked her to be friends with Mr. Bourdon and to not tell anyone. She believed that Mr. Bourdon was drugged too.

[292] It was suggested to her that she continued her friendship with Mr. Bourdon because she didn't believe that he drugged her or touched her. She responded, no, it was because Ali asked her to be friends with him. It was pointed out to her that this was a person, Ali, who she had never talked to, seen or date in person. She responded, “I caught Rene touching me, Ali asked me to cut Rene some slack, he's on medication, the weed was laced, “I imagined what it must have done to him”, given how it affected me.

[293] On August 19, 02:08:03 to 02:41:00, Officer Knight texted her using Ali’s phone. Ali had been jumped. He was in the hospital. Police thought it was self-defence. Three people had been charged. It is pointed out to her that she suggests he take “anger management”. It was put to her that that response indicates that she knew that this whole exchange was crazy. She responded that she thought it was weird, the officer texting her on Ali’s phone. He was on duty. She thought he should call her.

[294] She texted Mr. Bourdon and told him that Officer Knight informed her that Ali had been jumped by three people.

[295] It was put to her that she didn't believe this at all. She responded that when she heard that Ali was in the hospital, she took it more seriously.

[296] It was put to her that she was telling the officer to call her because she didn't believe any of this. She responded that the officer told her that they did not want any phone records. It was gang related. Police had called his lawyer.

[297] On August 21, Ali was in a hospital, in a semi-coma due to complications from being jumped two days earlier on the 19th. Dave, who she understood to be a friend of Ali, was using Ali’s phone to text. It was put to her that Dave was using the same single method of communicating with her as Ali did, not call, not use his own phone. She responded, yes, but “Dave was a friend of Ali. I found it strange he did not call, but he kept me up to date. Dave apparently had been with him and picked him up after he'd been jumped. I appreciated that.” She believed that Dave had taken him to the hospital.

[298] It was put to her that she had nothing to confirm the identity of Dave. She responded, yes “only what Ali or Rene told me”.

[299] It was put to her that Dave had not texted that he was with Ali and had taken him to the hospital. “No Rene did”.

[300] It was put to her that it must've seemed odd to her that even though Ali was suffering from a brain bleed, he was still able to communicate to her through Dave. She responded, “Not at the time.” “It was quite believable.” “Ali, Dave and Rene were all talking to me.”

[301] It was pointed out to her that she knew, as of August 22, through Dave, that Ali had had a stroke, couldn’t see properly and has pressure in his head. It is put to her that she was left with the impression that Ali could barely function. She responded, No, he was coherent and could function. He couldn't speak, and couldn't see properly. It was put to her that this whole scenario was very dramatic, and that it just didn't make sense. She responded, “It didn't make sense, but luckily I had Dave and Rene.”

[302] Ali dictated a text for Dave to send to her. “Angel face … I don't want to die without having a chance of a 3some…. ” He wanted a picture of her. It is put to her that this must've sounded fishy given that she knew he couldn't see properly. She responded, “I assume the picture was for when he woke up.”

[303] It was put to her that she must have thought that this whole thing was ridiculous. She responded, “No, he had a 50-50 chance of dying, I was very much in love with him.”

[304] It was put to her that given that he was in such a serious medical situation, she knew his request for a 3some was a charade. She responded, No at this point she found it odd but she was not going to judge a person she loved who was on his deathbed. She did not know it was the charade.

[305] It was put to her that she played along with it because she thought it was funny. She responded, “This was the person I loved. I did not think it funny at all.”

[306] It is pointed out to her that she texted: “you are still making me laugh a 3some”. It is put to her that she felt flattered. She responded no, she was heartbroken. She would do nearly anything to be able to talk to him again.

[307] It was put to her that when she said he was making her laugh, she knew this whole thing was insane. She responded, no, she was laughing that his last request was for a 3some in the face of all of his medical conditions.

[308] She agreed to it.

[309] It was put to her that in the face of the questionable medical evidence she knew it was a charade and yet she agreed to at 3some. She responded no.

[310] On August 22, 01:21:12, Dave and Mr. Bourdon wanted to get high. She had been 10 months clean and she talked to them about not doing it. She said that that was her weak spot so they went to get high. “I relapsed under the stress of Ali’s condition and the influence of Dave and Rene.”

[311] It was put to her that on August 22, she knew that the surgery was a farce and she was using it as an excuse to get high. She responded, “No. I resisted. I did not encourage it”.

[312] It was pointed out to her that there's no indication that she insisted on going to the hospital to be with Ali for his surgery. She couldn't recall. It was put to her that it does not appear that she insisted that Mr. Bourdon take her. She said it did come up, but Dave was there. Mr. Bourdon couldn't necessarily leave because he was a parolee with restrictions.

[313] It was put to her that she made no effort to locate the hospital and be there because she knew that there was no surgery going on. She responded no, Mr. Bourdon and she were together. They cried when things went on with Ali. There is a text on August 25 from Mr. Bourdon: “send him somewhere in Michigan.” This confirms her testimony that she knew he was somewhere in Michigan, on August 25.

[314] It was put to her that she simply used the surgery as an excuse to get high. She responded, “Why would I destroy 10 months that I worked really hard to achieve.”

[315] On August 30th, Ali was in hospital. He needed more surgery. Mr. Bourdon had been paying his medical bills. Ali was refusing to have more surgery because he does not want Mr. Bourdon to pay any more medical bills. Mr. Bourdon had already paid about $20,000. It is put to her that Ali told her all of this. She responded that it was either Ali or Mr. Bourdon.

[316] Ali said that he would have the surgery if she slept with Mr. Bourdon, as payment for his surgeries. She said he was adamant.

[317] It was put to her that she knew that Mr. Bourdon was working at Corcan for minimum wage. The point being, how could he possibly afford to pay $20,000? She responded, no. He was also a businessman and he had helped Ali, start a business. It was put to her that by the end of the summer of 2012 she knew that Mr. Bourdon could not pay $20,000 for medical bills. She responded that with all of the businesses that he was involved in he could. They did not discuss where he got the money from.

[318] It was pointed out to her that within 5 days of becoming engaged to Ali, her fiancé was telling her that he was refusing to have surgery if she did not sleep with Mr. Bourdon. It was put to her that it is ridiculous that he would do that to her. She testified that she was doing crystal meth, which impaired her morals, common sense and judgment. It didn't make sense, but someone's life was in her hands.

[319] It was put to her that she agreed to have sex with Mr. Bourdon “because the whole situation amused her.” She responded, no.

[320] It was put to her that her fiancé was acting like a child and that she knew “this whole thing was a big act.” She responded, “I see that today. Then, I couldn't fathom that someone that I cared for that someone would manipulate someone… .”

[321] It was put to her that at this point she didn't even know where he was. She responded that he was in Michigan. (See text reference at Ex. G, p. 68 from Mr. Bourdon, as of August 25). “Rene assured me with updates as to his progress.”

[322] It was put to her that she knew she was taking a risk that Ali would not go through with his part of the deal and have the surgery. She responded, no “Ali didn't want to take more money from Mr. Bourdon.”

[323] It was put to her that she knew that Ali could change his mind. She said she thought that he wanted to have the surgery. She did not agree at all that he could change his mind. “I believed that if I had sex with Mr. Bourdon. He’d have the surgery and he did.”

[324] It was put to her that sex with Mr. Bourdon was not as girlfriend boyfriend. She agreed that that was correct, “not even as friends. It was an arrangement that Ali requested to save his life.” Yes, Mr. Bourdon was a friend, but that is not why she had sex with him.

[325] When she first told Mr. Bourdon about the deal to have sex with him, he said no. She went back to Ali and told him and he said that is the only way that he would have the surgery. So she went back to Mr. Bourdon and told him again. She agreed that she “persisted” with Mr. Bourdon to have sex because Ali “persisted” that that was the only way he would have the surgery.

[326] On August 30, she texted Mr. Bourdon: “Him and I have a deal.” “You and I are going to fuck.” It was suggested to her that she was “commanding” that he do this. She responded no. In using that wording, she was making it as least personal as possible.

[327] It was pointed out that she decided that it would happen “tomorrow”. “Yes, I wanted to get it over with as soon as possible.”

[328] Mr. Bourdon asked if she was sure, and she was. “Yes, someone's life is in your hands. I wanted Ali to have the surgery.”

[329] It is pointed out that she decided it would happen after he finished work.

[330] It was pointed out to her that she made the personal decision to go through with it. She agreed that she made the decision, “but it was inspired by Ali.” “I persisted with the plan because I was confident that Ali would have the surgery as a result.”

[331] It was pointed out that Ali didn't want the surgery. He didn't want to take any more money from Mr. Bourdon. Therefore, she was convincing Ali to do something that he didn't want to do. “He wanted the surgery but he did not want to take Mr. Bourdon’s freedom away. The money was to fight the courts and fight the police” with respect to the wrongful conviction. The texts at Ex. H, p. 19 from Mr. Bourdon (5805), on August 30th, at 00:49 AM: “my freedom. My appeal that I was winning to clear my innocent. I had it won. I cancelled it and got the money from my lawyer I had one more month to trial and it was a guaranteed win,” confirm her testimony that Mr. Bourdon would lose his freedom, i.e. lose his chance to overturn the wrongful convictions.

[332] It was pointed out that between the time she struck the deal, when she was at E.C.’s, and E.C. told her she would think differently about Mr. Bourdon, and that it would be gross, and then while she was at home before it happened, she had lots of opportunity to decide against it, to change her mind.

[333] She responded, that she thought that in fact she told Mr. Bourdon just to pretend and to tell Ali that they had done it, but not go ahead with it. She said that she immediately got a text from Ali saying that he would know if they did that. The texts at Ex.H, p. 20 and Ex.41, Binder 2, p. 9 to 10, confirm her testimony.

[334] It was pointed out that she decided where to have sex. She decided the type of sex. She decided what wouldn't occur. When she told him to stop with his hands he stopped. She stopped his attempt at oral sex, “he tried to persist but I nearly kneed him in the face”.

[335] On September 6, 23:16:03 into September 7, she and Mr. Bourdon were planning for the weekend. She thought that “high” meant weed, turned out it meant ice. She did not want to use it but they all agreed that it would be one last time. She testified that in a sober perspective this wouldn't make sense, but it did because she was under the influence of Crystal meth.

[336] She repeated that she was not thrilled about using crystal meth for the occasion. But Mr. Bourdon wanted to do it one last time.

[337] It was put to her that this was an excuse for her to do her drug of choice and party. She responded, no, if that were the case, why would it take so much to persuade her?

[338] On September 7, 01:25:45, Mr. Bourdon texted to her, saying it looks good for tomorrow, but Ali was arrested again. She and Mr. Bourdon were in the throes of partying at her house. This was because, Ali told her to do so while waiting for him. She and Mr. Bourdon are drinking and they did crystal meth in his car.

[339] It is put to her that surely she must have suspected that this was just some crazy charade. She said it might have if she was the only one in it, “but I always had Rene to explain.” “I accepted what Rene assured me.”

[340] With respect to September 15, Ali texted her he was going to get onto a train at 4:47 PM.

[341] He did not show up.

[342] It is put to her that she now expected that he would not come. “I always was reassured by Mr. Bourdon.” “My concerns would go away.”

[343] She agreed, as she had testified in chief, that Mr. Bourdon told her to tell the parole officer that they only meet at NA, not to say that he had been to her house, not to tell that they had hung out, other than at NA. She agreed to doing this. She added that she was going to say that she would only meet the parole officer if Mr. Bourdon was present and she was not to let him ask her what she knew about the convictions.

[344] She agreed that she was prepared to lie to the parole officer. She said she was prepared to do this because Mr. Bourdon was innocent and he would be penalized if it was found out that he'd been hanging out with her. He’d be breached for something of which he was innocent.

[345] She agreed that she had no intention to tell the parole officer that she had sex with Mr. Bourdon. She agreed that she was not going to tell the parole officer about the hotel incident. She said that Mr. Bourdon would have been penalized although he was not in control of his actions. They'd both been drugged.

[346] It was put to her that she wanted the parole officer to authorize her continued relationship with Mr. Bourdon. She answered yes, when she understood his charges were not true.

[347] She agreed that she was prepared to lie to the parole officer in order to let the relationship continue.

[348] She agreed that Mr. Grey and Sgt Brooke asked her on September 25th how long she had known Mr. Bourdon, whether he had been to her house before, and she responded 10 times over the last month. They asked if there was anything sexual and she told them no. They asked about whether it was only a friendship and she said yes. She told them that he had told her about his criminal convictions. She told him that they had gone to NA meetings. She told them nothing about Econo Lodge or that she had been drugged there. “I still thought Mr. Bourdon was innocent. He was suing the police with respect to his wrongful convictions. I believed he was innocent.” She agreed she told them nothing about being touched or about pictures or a blindfold.

[349] It was put to her that she lied about the sex because she did not want Mr. Bourdon to get into trouble with his parole officer. She responded, yes, had I known that he was rightfully convicted of sex offenses I would've changed my thoughts. “I thought he was in a lawsuit with the police because he was wrongfully convicted.”

[350] It was put to her that when she was asked if they had a sexual relationship she said to them, “absolutely not. We're just friends”. She said that she said something like that. Her initial reaction was to protect Mr. Bourdon because he had told her that he was wrongfully convicted. “Sex with Mr. Bourdon was a payment to save Ali’s life.”

[351] It was put to her that on September 25 she concluded that Mr. Bourdon was impersonating Ali. She said that it was not until his father did not appear to know who Ali was. This was when the father came for the car the next day. It was then that she first came to believe that Mr. Bourdon was impersonating Ali.

[352] She testified that she told E.C. that Mr. Bourdon was pretending to be Ali after she had spoken to Mr. Bourdon’s father. She was not cross-examined on any texts that showed otherwise or contradicted her testimony on this.

[353] It was put to her that when she concluded that Mr. Bourdon was impersonating Ali, she became upset. She responded, “Upset did not describe it. Furious, did not describe it”. This was someone that she had protected. “To have such a sadistic nature. That's why I cried yesterday (in court, at the end of the day). It was hard to find that out.”

[354] It was suggested to her that her conclusion about Mr. Bourdon impersonating Ali, caused her to regret her friendship with Mr. Bourdon and having sex with him. “Absolutely, being manipulated, violated by someone I trusted.”

[355] In re-examination, with respect to the cross-examination that it was she who booked the hotel, with which she disagreed, she was referred to Ex. G, p. 12, August 3, 2012. Ali to M.B., 00:25:23 “the hotel is on princess st Rene said it is book.” She understood that Mr. Bourdon had booked the hotel for Ali and her. At Ex. G, p. 24, August 5, 11:27:07, Ali texted to M.B. “the motel is on princess st… its called Econo Lodge.” This is the first she knew which hotel they were going to. This text confirms her testimony.

[356] With respect to the cross-examination concerning the 9:23 PM time at the hotel and the suggestion that she made it up, she was reminded that in cross examination, she had said that she actually had stated that time in one of her police statements. She reviewed her statement to police of October 2, 2012 and at page 37, her memory was refreshed that that is when she had told that time to the police. She testified that she got that time before Mr. Bourdon had left the room. She testified that he took a photograph, she looked at the clock, it was 9:23 PM and he left within a couple of minutes.

[357] Ex. 11a and b is the letter and envelope mailed November 8, 2012 that she received from a Ceaser. It describes things that only Mr. Bourdon, Ms. M.B., Ms. E.C. or the police would know. She interpreted the reference to “friend” to mean Rene.

[358] This letter tells Ms. M.B. that Bishop is real and that Mr. Bourdon did not pretend to be Bishop. It says Bishop is a liar and lied to her. Bishop threatened Mr. Bourdon and told him to lie to her. It says that on September 25, 2012, Bishop went to her apartment and left “the cell phone in a bag and left it at your door outside and left.” It says that Bishop stole the cell phone from “the friends car”, and “later he realized the cell phone was and it had some old pictures of yours. Bishop kept the cell phone.” The letter says that the friend did own a business and that his father lied to her concerning Bishop. It tells her that her accusation against her friend is irrational and outrageous. “Your friend would never pretend to be Bishop.” The letter says that the friend did many good things. It warns her about charges for false information and perjury and lying to a parole officer and police. It warns her that texts to drug dealers can be found. It references specific texts in which the deal for sex with Mr. Bourdon is made. It quotes her words in texts to Mr. Bourdon: “you and me are gonna … that’s the deal I made….”

[359] Excerpts from the Ceaser, Ex.11(a) are as follows:

11(a)

Ceaser … Bishop’s ex-friend … because of what he did to you …

I’m writing this letter only to tell you about Bishop. …

Bishop told me things when I saw him, and I heard what is going on with your male friend, and what you said about him pretending to be Bishop. That is redicules because it was’nt your male friend, it was Bishop. …

He is a compulsive liar, he uses people, he plays with peoples heads, and ruins there lives. …

Bishop loves to lie and pretend to be someone he isn’t, because he wants people to like him more and think that he is the shit. …

He lied to you when he told you that your friend’s parents raised him and he was like a brother to your friend. …

Bishop lied to you…

Bishop threatened your friend, He told your friend that if he wouldn’t lie for him, He would report him to his Parol Officer for doing bad things, for breaching his conditions and other things.

On Monday, September 24, 2012, Bishop told your friend that he was going to break up with you, because he was going away.

Your friend told him to tell you the truth about everything, and that he was breaking up with you.

On Tuesday, September 25, 2012, Bishop went to your apartment, and he knocked on your door early in the morning to see you and to talk to you.

You didn’t answer your door so Bishop left you a note and the cell phone in a bag and left it at your door outside and left.

…he went to see your friend. When he say your friend, they went for a coffee and Bishop saw a cell phone on the side of the passenger seat of your friends car. Your friend went in the store to use the washroom and Bishop took the cell phone and later he realized that the cell phone was yours and it had some old pictures of yours. Bishop kept the cell phone.

Your friend did not lie to you when he told you that he use to own a business and that he sold it to his parents because he was loosing his store.

Your friend wants to open a store again and his father lied to you concerning Bishop and everything els, because he was very upset at Bishop, and upset about his son was arrested.

His mother called you the next day…

I got to tell you that the only person in the wrong is Bishop. He is the one who caused all of this, I know this cause he has done it to other people.

Your accusation against your friend is irrational and outragious. Your friend would never pretend to be Bishop. …

What would he gain for pretending to be Bishop? …

When you were with your friend, and you got a text from Bishop, did you see your friend sending it to you? (Not Bishop!)

When you sent Bishop a text, did you see your friend with Bishop’s cell phone? Did you hear it ring?

…you should also be truethful and accept responsibility for lying as well. …

Charges can be layed for false information and for perjury etc, etc.

Text messages can be fascinated can it! The contents of a text message can be save, printed on a paper with the time date and the telephone #, it can also be sent to your email and printed out on paper.

A phone bill can also provide information on all incoming and outgoing calls with the time and date.

If some one lied to a parol officer or police officer because they were very upset and mad at someone for lying to them and proof can be proven; that person has committed perjury.

A text message could reveal that someone has texted a (person) drug dealer so that they could purchase some street drugs.

Another text can reveal that someone sent a text telling a person that you and me are gonna…and “that’s the deal I made.”

Or a text revealing that a person sent a text saying “that’s the deal I made so he can take the surgery.”

[360] By admission of the parties, Ex. 65, fingerprints on this letter belong to Andrew Carlo. Carlo and Mr. Bourdon resided on the same range at Kingston Penitentiary from October 11, 2012 to November 13, 2012.

[361] From the content of the letter, Carlo’s fingerprints and the evidence from Mr. McMurray, which I accept for the reasons given later in these Reasons, I conclude that Mr. Bourdon is the author of this letter.

[362] Taken together with this evidence, I conclude in similar fashion, as a strong, reasonable and logical inference, that Mr. Bourdon authored the friends-with-benefits letter sent to Ms. E.C. (Ex. E, p. 6-7, 25-28, September 13th), purportedly written by Sera with whom he said he had a friends-with-benefits relationship.

[363] For the Reasons set out below, I conclude without hesitation that Mr. Bourdon impersonated Ali. Taking all of this together, I also conclude without hesitation that Mr. Bourdon authored Ali’s note on 0801 on his dying that was sent to Ms. M.B. (Ex. G, p. 89, September 17).

4. E.C.

[364] She was born […], 1993. She was 18 years old at the relevant time.

[365] She moved to Kingston when she was 17 or 18 years of age and moved in with her mother at an address in Amherstview, 43 Astbury. She did not know anyone other than her mother, and her boyfriend and kids, except for a couple of relatives.

[366] She moved here to get better help with her drug addiction to opiates than was available to her in PEI. She began methadone treatment and attending Narcotics Anonymous meetings within two weeks of getting to Kingston. From her testimony, it is clear that she wished to overcome her addiction and she was committed to doing so, particularly in accordance with the direction from Narcotics Anonymous.

[367] She went to Narcotics Anonymous as often as she could get a ride, sometimes every day of the week.

[368] It was there that she met Ms. M.B.. This was within a month of moving to Kingston. Ms. M.B. was the first friend that she had in Kingston. The two of them would hang out together at the Tim Horton's on Princess Street. People from the Narcotics Anonymous meetings would go there after the meetings to hang out and talk.

[369] Ms. M.B. introduced her to Mr. Bourdon, as her best friend, at Narcotics Anonymous. This was towards the end of July. The introduction took place during a smoke break at a meeting. He offered her a ride home that first night. This introduction took place within a month of her starting at Narcotics Anonymous.

[370] Ms. M.B. suggested that the three of them hang out together.

[371] The three of them would hang out at Narcotics Anonymous and also before and after the meetings. She began to text with him. They exchanged telephone numbers.

[372] Narcotics Anonymous encourages those who attend to trust everyone who was there and in particular, those people who have more years of recovery. Such people are considered mentors to people like Ms. E.C. who are just beginning their recovery. Ms. E.C. was looking for friends who were in recovery, and succeeding.

[373] She remembered the first ride that she got from Mr. Bourdon. She sat on a hornet. He later texted her to say he was sorry about that, something to the effect that she got stung because “you're too sweet.” Her testimony on this is proven in the texts.

[374] Ms. M.B. and Mr. Bourdon became her circle of friends. They seemed like healthy and positive people. In particular, she looked up to him, because he had succeeded for a number of years with his recovery. She aspired to do the same.

[375] It developed that he would pick up M.B. and her prior to the meetings. Sometimes he would pick her up first and then they would go to Ms. M.B.’s house where they might have to wait for her to get ready. He would either pick her up at her address in Amherstview or at a shop halfway. She described his car as smaller, two-door, silver, with a sticker on one side, 2 to 3 feet long. When they had to wait for Ms. M.B. to get ready, they would sit in his car in her parking lot.

[376] She identified 2 text contacts with him from pages 1 and 2, and from page 3 of Ex. E (excerpts from his flip phone - 5805). She described him as having this flip phone which he used regularly. She also testified that on one occasion, she saw that he had a number of different phones in his car. He showed them to her. She saw him use only the one flip phone.

[377] She had no money at the time and he would pay for her cab fare. This was expensive between Kingston and Amherstview.

[378] With respect to the text on p.3 of Ex. E, she recalled that occasion exactly. He picked her up at her mother's home in Amherstview. He had picked her up there before. She is not sure why she had to tell him the address on that occasion.

[379] She testified that as of September 4, 2012, the date of this text, she had not known him for a full month yet. She considered him a good friend.

[380] He told her that Ms. M.B.’s recovery was slipping, that she was involved in speed again. He suggested that Ms. E.C. and he hang out without Ms. M.B.. They would go in his car and park at different locations, usually where there were docks, and boats, secluded areas in Kingston. This would be after dark and after meetings. They would have a coffee and talk. He said with respect to his previous charge that he was framed. He was like a mentor to her and talked to her about how to succeed in her recovery. Sometimes they would talk for a couple of hours. They would also hang out on days when there was not a Narcotics Anonymous meeting.

[381] She testified that she was just really, really good friends with him. She was not attracted to him other than that she admired his success in recovery. She looked up to him for his recovery success. “Absolutely not” otherwise, such as romantically.

[382] Although Mr. Bourdon reported E.C.’s name to Mr. Grey on September 5th, that was the extent of the information given by Mr. Bourdon as to their contact. No Community Assessment was ever arranged or conducted.

[383] She knew about Ali, as Mr. Bourdon’s best friend, who lived in Toronto. He was Ms. M.B.’s fiancé although she had never met him, only texted with him. Ms. M.B. told her about Ali. She also talked to Mr. Bourdon about Ali. There was always some drama going on about Ali.

[384] Ms. M.B. showed her pictures of Ali. The pictures were on Ms. M.B.’s cell phone. She did not know anything about Ali until after she had met Mr. Bourdon.

[385] Mr. Bourdon called her one time on the telephone when Ali died. He also called her when Ali was arrested and in jail.

[386] She testified that he came to her house to pick her up, but he never went inside her house. One time, they went to the neighbour’s to see a litter of new puppies. He offered to buy her one. They cost $600.

[387] She confirmed that Ms. M.B.’s cell phone was red and black. This is the phone that Ms. M.B. had for most of the time that they were friends. Ms. M.B. told her that he smashed it and he gave her a brand-new iPhone with a plan. She could not recall the color, but saw Ms. M.B. use it. She was not sure which phone had the pictures of Ali on it.

[388] Mr. Bourdon told her that Ali lived in Toronto, was his best friend, was Ms. M.B.’s fiancé, and that he had introduced Ms. M.B. to Ali. Mr. Bourdon also told her that Ali had been attacked at his residence by five or six men. This required hospitalization and surgery. The first surgery was done in the States. It did more damage than repair. Ali had to come back to Canada to fix that surgery. Both Mr. Bourdon and Ms. M.B. told her this story, but it was mostly from Ms. M.B.. One time when she was at her house, M.B. found out how sick Ali was from a text. Ms. M.B. spoke to Mr. Bourdon on the phone. Ms. M.B. addressed the caller as Rene. She went hysterical because apparently there were complications from the first surgery.

[389] It seemed to her that Ms. M.B. really loved Ali. This seemed odd to her because they had never met. At the time of the attack and the surgeries and complications, Ms. E.C. was worried that Ms. M.B. was going to relapse.

[390] Mr. Bourdon talked about Ali in person and by text quite a bit.

[391] At Ex. E, page 23 to 25, September 12, 2012 are texts between Mr. Bourdon and Ms. E.C. concerning Ali being mad and leaving the hospital. She recalls these texts because she was getting extremely annoyed that she was getting pulled into this matter.

[392] After Ms. M.B. told her about what happened to her with Mr. Bourdon at a hotel, she stopped hanging out with Mr. Bourdon.

[393] She testified that Mr. Bourdon asked her many times to become “best friends-with-benefits”, meaning good friends having sexual intercourse with no strings attached and no relationship. She declined because she was not interested in that with him, but she didn't want to hurt his feelings, so she tried to be honest and polite. She told him, words to the effect, “maybe later when I'm stronger”, and “not now, I have got to focus on my recovery.” She testified that she was not ever interested in that relationship with him. He would respond by making a counter offer. He asked more than once. She testified that there was one occasion when he forwarded to her a text from another woman with whom he'd had such a relationship. That text said he was a good man. The texts confirm her evidence on this.

[394] At Ex. E, pages 26 to 28, September 13, 2012 is an example of Mr. Bourdon telling her that he had a friends-with-benefits relationship with another woman. Ms. E.C. pointed out, in a clear sophisticated, focused response, that this text was not about Mr. Bourdon and her, but about his situation.

[395] One school morning at about 7 AM, she received a telephone call from Mr. Bourdon. He was with Ms. M.B.. Ali had died. Mr. Bourdon said that Ms. M.B. was not doing well. He was concerned she was going to use. It sounded like he was trying to stay calm for Ms. M.B.. Although he did sound upset, maybe in shock. They wanted her to come over. She said, no, because she needed to take care of herself. It would not be good for her to be around Ms. M.B. if she was going to relapse. Plus, Ms. E.C. couldn't miss school. She testified that both of them seemed hysterical. Ex. E pages 8 to 9, September 16, 2012 are the texts that relate to her checking up on them concerning Ali’s death. Ms. E.C. thinks that this is the day that Mr. Bourdon called her at 7 AM, or it could be the day after.

[396] With respect to the text at Ex. E, p. 10, Sept 16/12: she testified that his reference to “I would take a big chance and risk me getting seen” is a reference to his parole officer who was getting suspicious. Mr. Bourdon had gotten into trouble because he had been seen driving with M.B. in the passenger seat. Mr. Bourdon told her about this, but she's not sure about the exact date. At Ex. E, p. 4, Sept. 11/12 is the text in which he tells her that if a parole officer calls, she can say that she knows him, and that they talk about Narcotics Anonymous and that he sees her at Narcotics Anonymous and they go to Tim Horton’s for coffee, but “you can't tell him that we hang out and that I gave you rides. Before I do, my parole officer needs to meet you first. He allowed me to talk to you, go to Narcotics Anonymous and he allows me to meet you guys at Tim’s.”

[397] The next thing that occurred was that she went to a Narcotics Anonymous meeting and M.B. and Mr. Bourdon were not there. She got at text from Mr. Bourdon, saying that he was going to leave and go to Brazil. He had a home and family there and wanted a fresh start. She texted him to say that before he went, he should pick her up and they could go for a coffee and talk. She testified that she knew that they had relapsed. He had told her, after Ali had died, in person before a meeting in his car outside of Tim Horton’s. He explained that Ms. M.B. had gotten some speed and that she had already relapsed. Ms. M.B. offered Mr. Bourdon some and he used with her. He said, “Years, I just flushed down the toilet.”

[398] She left the meeting early and he picked her up. Leaving early was something she never did. They sat outside the meeting for a while and then she saw that the whole back of his car was packed with all of his belongings. She thought that he was ready to leave. He was crying and very upset, his best friend just died. She said let's go get a coffee.

[399] They went to Tim Horton’s, and then he drove her to a secluded area, the regular place, where there were boats and docks, in Kingston. They talked for two hours. He told her that he had been framed on his charges. He talked about Ali’s death, and that there was nothing here for him. She said that she was extremely vulnerable, she was trying to get clean, she was just a kid, she was facing a “humongous” challenge. “He manipulated me in the very worst way.” She wanted to help her friend. He had been good to her. He helped her with her recovery. He was mentoring her. She asked herself, “What can I do to make this better for him?” So she offered up the only thing that she could. He'd been asking her over and over again. She offered that she would have sex with him if he would stay and not give up. He agreed. His whole demeanor changed like this solved everything for him.

[400] The text at Ex. E, p. 13, September 17, 2012, occurred after this discussion. She was really sad that he was going to leave and that he would be throwing his recovery away. Narcotics Anonymous taught them that they had to go to meetings. They were really good friends. She knew that she would be losing his help for her recovery. He was her mentor. She felt sad for Ms. M.B. too.

[401] She pointed out that he manipulated her to bring this topic of sex up.

[402] She said that they planned when it would happen, the next day after the meeting. He drove her home that night.

[403] The next day he picked her up for the meeting and also Ms. M.B.. At the meeting, he said he didn't feel too good so they could get out early. The three of them went to Tim Horton’s where Ms. M.B. got her tea, she got an apple cinnamon tea, and he got something. They dropped Ms. M.B. at her house. They drove to Amherstview and looked for about 20 or 30 minutes for a spot to park. She was having significant second thoughts, but then she thought she was just being paranoid, that nothing was wrong, she was just helping a friend. She thought she was being a good person.

[404] They found a spot in a school parking lot. She thought it was an elementary school. It was very dark. They had sexual intercourse in his car. Afterwards, they sat there and had a cigarette and then he drove her home.

[405] Afterwards, “I was bothered to say the least by this.” During the intercourse, soon into it, she didn't want to be doing it. However, she felt if she had spoken up, it would have been rougher. “So I just laid there like a dead whale.” “I was disgusted. I felt like I was being raped all over again.”

[406] The next day he texted to ask if they could continue doing it. He said it relieved him of all of his stress over Ali’s death. She absolutely did not want to do it. It did not feel like a consensual romantic encounter. She told him, no, she couldn’t, too much for her PTSD, flashbacks. She didn't want to be mean to him or to be rude, but she said no. She kept saying no. He would not take no for an answer.

[407] The text at Ex. E, p. 17 to 19, Sept. 19/15 is the day after she had sex with him and she explains that she can't do it anymore. She mentions her prior traumatic incident, and flashbacks and that it's really hard for her to deal with all that.

[408] She continued to see him. There was no more sex.

[409] When she next heard about Ali, he was alive, suddenly. She thought that none of that made any sense and that there was something definitely wrong.

[410] She did believe that Ali was a real person, when Ms. M.B. and Mr. Bourdon told her about him. But then the pictures were weird, and that made her think. She also thought it was odd that Ms. M.B. had a fiancé that she had not met. At the end, she questioned herself as to whether this was a real person.

[411] She was asked in examination in chief:

a. Q. At the time that you had sex with Mr. Bourdon, did you believe that Ali existed? A. yes, I still believed that, but I had significant suspicions, things didn't add up.

b. Q. if you had known that Ali was not a real person, would you have had sex with Mr. Bourdon. A. I can't testify to that, because I am in a completely different place now than then, and if I answered. I don't think it would be a fair answer.

[412] The texts at Ex. E, pages 29 to 30, September 23, 2012, relate to Mr. Bourdon wanting to get together with her that night. She says she can’t go out because she has too much school work. She says he can come to her house for a smoke. He did come over that night. She testified that no one else in her home smoked so they sat outside on the front porch for a cigarette. He was there for 15 to 20 minutes.

[413] There was no more communication from Ali after Mr. Bourdon was arrested.

Cross examination

[414] Prior to her addiction to opiates, she used ecstasy. She also used cocaine.

[415] Her addiction started at age 12. In the summer of 2012, she was 18 years of age and would have turned 19 years in November.

[416] Ms. M.B. explained to her a large part of Mr. Bourdon’s background, his previous charges. Ms. M.B. told her that he had a criminal record and past convictions for sexual assaults. She said that he also told her about his criminal background. In re-examination, she said that he told her about his criminal background. In re-examination, she said that he told her that a woman accused him of raping her. It was on video. He said it was not a rape, but that she went to the police and said that it was. He told her that the conviction was under appeal.

[417] Throughout the whole time period that she understood that Ms. M.B. was engaged to Ali, Ms. E.C. understood that the only communication and relationship between Ms. M.B. and Ali was texting. They never talked on the phone.

[418] She said that she found that sort of relationship with a fiancé “very odd”, but she did not want to be “too judgmental.”

[419] She did not think the photos of Ms. M.B.’s fiancé looked real. She raised her suspicions with Ms. M.B., but diplomatically. She told Ms. M.B. that the pictures did not look real. Ms. M.B. insisted that that was her fiancé. Ms. E.C. thought the pictures looked fake, but she wanted to believe so as not to hurt her friend.

[420] “I did not think Ali was fake at the time. I just thought the pictures were fake.”

[421] She testified that she thought there were “pieces being left out… What they told me did not sound normal.” With respect to Ali’s death, she did not think that Ms. M.B.’s reaction or concern was “completely irrational,” as suggested by defence counsel, “He was her fiancé. She was genuinely upset.” This was even though it made no sense to Ms. E.C. to fall in love over texts.

[422] She testified that she did not think that Ms. M.B. was overreacting. She would check up on Ms. M.B.. “I did not think her reaction was disproportionate. He was her true love. I’m not anyone to judge her. It was very clear that she loved him very much. I was upset for her, but I had my own opinion.”

[423] Ms. E.C. agreed that she made the decision not to go to Ms. M.B.’s to support them regarding Ali’s death. She did not want to risk her recovery by going where there were drugs.

[424] The texts at Ex. E, page 12, Sept 17/12 show Mr. Bourdon texting: “I'm going to Brazil.” She responded, “Seriously Rene?" It was put to her that she did not seriously believe that he was going to leave. She responded that what she meant to say was, are you really going to leave. It was put to her that she thought it was “pretty ridiculous”. She responded, “No, I was worried about him”. It was put to her a third time that this going to Brazil, those words were ridiculous. She responded, “No it was pretty justified, his best friend just died”. “He fell apart, it seems, when Ali died”. Before that he was very stressed out.

[425] With respect to her text: “what can I do to make you stay”, she explained that she wanted to support him and find a way to make him change his mind.

[426] It was put to her that when he pulled up after she left the meeting early, she didn't think he was going to leave. She replied: “I absolutely did think he was going to go. He had his whole car packed. 150% believed he was leaving.”

[427] It was put to her that she could not think that he could leave the halfway house. She said that she did not know those rules or if he snuck out, “I truly believed he was going to leave”. She said that the car seat in the back was usually empty. She testified that, “I thought he was going to drive to Brazil in that car.”

[428] It was put to her that he never told her that he had a house in Brazil and relatives. She testified that he did do that.

[429] She testified that it was she who brought up the topic of friends with benefits when they parked at the water that night. He had mentioned it many times. “I felt it was the only option I had, I could help him.”

[430] The texts at Ex. E, page 13, Sept 17/12, 9:00 PM are after the discussion at the water where she offered to have sex with him. In these messages, she is pursuing the topic of having sex the next day. The discussion spans over two hours. She acknowledges that there is a lot of thought put into it by her.

[431] On September 18 at 3:30 PM, p. 16, he texts to ask if they can have sex later. She replies, “Yes, we definitely can.”

[432] On the evidence, it is clear that she only offered to have sex with him to keep him from leaving, to make him stay.

[433] It was after Mr. Bourdon had been arrested that M.B. found out that Ali was not real and M.B. said that Mr. Bourdon had impersonated Ali. At that point, M.B. believed that Mr. Bourdon was Ali. It was put to her that M.B. was very angry and upset when she told Ms. E.C. that Ali was not real. She replied, “No she was devastated.

[434] Ms. E.C. testified, “I thought that he (Ali) was a real person but I thought that pieces of the story were being left out.”

Re-Examination

[435] Without a question being asked, she volunteered that she recalled being asked the question about consenting to the sex. She said that she had answered that she had consented to the sex, but that she did so because she was under extreme manipulation. She was extremely vulnerable.

[436] In my opinion, Ms. E.C. was an impressive witness. There was no evidence of any prior inconsistent statement, for example, statements to the police or her testimony at the preliminary inquiry.

[437] There were only two perhaps inconsistences:

(i) he did not tell her he had been sexually assaulted – a text suggests he may have. She denied it.

(ii) did not know a Chris – a text suggests she did . She testified that she could not remember.

These are minor, collateral points of no consequence.

[438] Her testimony was thoughtful yet non-hesitant in her responses. There were no long pauses prior to responding.

[439] She answered the questions asked.

[440] She did not challenge or question counsel. She was polite and respectful. She was not emotional or dramatic.

[441] Despite the unusual evidence concerning Ali, and Mr. Bourdon leaving for Brazil, her testimony is in harmony with preponderance of probabilities which a practical and informed person would find reasonable in the circumstances, which included being a vulnerable 18 year old former drug addict, struggling to maintain her recovery. The texts between Mr. Bourdon on 5805 and her cell phone confirm her testimony, for example, about Mr. Bourdon’s requests to be friends-with-benefits and the letter from a woman, Sera, whom he said he had such a relationship (Ex. E, p. 26-28, 6-7).

[442] Ms. M.B. and Mr. Bourdon were her only friends. They influenced her daily. She demonstrated a good memory, for example, she testified on a topic and then she is referred to the texts which confirm her testimony. Her answers are not self-serving, for example, with respect to the question: Would you have had sex with Mr. Bourdon if you knew Ali was not a real person?

[443] I accept her testimony that she was committed to her recovery and to her school work. I accept her testimony that she looked up to Mr. Bourdon for his success at recovery, as her mentor.

[444] I have no hesitation in finding her to be a credible and reliable witness.

5. September 25, 2012

[445] I have already detailed in the Charter decision dated April 5, 2016 the facts of September 25, 2012 which led to the arrest of the accused on a suspension warrant.

[446] Briefly, the accused was located by parole officers Grey and Jansen, correctional officer Golemiec and police officer Brooker, at U[…]. This address was unknown to his parole officer and it was a location that he was not authorized to be at. In addition, he was found there in the apartment of M.B., whose name was reported by the accused to his parole officer and with whom the parole officer was going to meet later that day, but at that point, he had been instructed by his parole officer that he was only to be in public places with her and that she was not to be in his car or at her home. The accused had told his parole officer, previously, on two occasions, that he did not know where she lived.

[447] Although the accused had turned over to the correctional officer when asked, his keys, wallet and the authorized cell phone (the flip phone 5805), it was not until after he was arrested and during a patdown search by the police officer that the unauthorized cell phone (0801) was discovered concealed in his waistband. At quick glance, it appeared to have camera capability and to be a smart phone.

[448] The parole officers did a cursory examination of the unauthorized cell phone back at PCCC in the course of fulfilling their parole officer duties and responsibilities, and observed a photo of a woman’s vagina, a photo of M.B. naked, these in the course of swiping the phone screen, and a connection to the Internet when they typed a word into Google. This led them to conclude that the unauthorized cell phone had camera capability, contained pornography and could access the internet.

6. Additional Follow Up By Sgt. Brooker

[449] Following his involvement in the arrest of Mr. Bourdon on September 25, 2012, Sgt. Brooker continued his police investigation, part of which included the following.

[450] On September 26, 2012, he received an email from Officer Perry Grey that informed him that Ms. M.B. was alleging a sexual assault. He told Officer Grey to tell Ms. M.B. to call the police. She filed a complaint that day.

[451] On September 27, 2012, he received copies of the signout sheets from Corcan, Ex. 2 and for Mr. Bourdon at PCCC, Ex. 3.

[452] On October 16, 2012, he received and read the report of Office Rathbone concerning the statement made by Ms. M.B.. He then attended at the Econo Lodge motel where he received certain documents that indicated that on August 5, 2012, M.B. stayed in room 105, which was paid for by a MasterCard in the name of Rene Bourdon. (Ex. 4)

[453] By mid-October 2012, Sgt. Brooker had information that Ms. M.B. had also given a video statement to another Officer Thompson.

[454] On November 15, 2012, he spoke to Ms. M.B. who turned over to him an envelope containing a letter that she had received at her home. She said it was from Ceaser. She had no idea who that was. The stamp indicated that it had been posted November 8, 2012 from postal code L8E 5A8. He seized the documents and asked Officer Moore at KP to test for fingerprints (Ex. 11A and B (photocopy)).

[455] On January 31, 2013, he took a sworn video statement from E.C., 2:44 to 3:51 PM.

[456] She then took him to a parking lot of a church off Briscoe Street. She pointed to a southwest corner of that lot. She said she had been this parking lot with Mr. Bourdon. The Mount Carmel School is on the opposite side of the street.

[457] Ex. 13 is a document prepared by the Commissionaire at PCCC used to monitor the coming and going of residents. On the last page, it lists as of July 16, 2012, the residents of PCCC and their phone numbers.

[458] Sgt. Brooker explained a four-page excerpt from Ex. 3 which is the sign in/out book maintained by the Commissionaire for the residents. It shows that Mr. Bourdon had a curfew of 2200 and a mandatory sign in at 1200 and 1700. For August 5, 2012, it shows that Mr. Bourdon was signed out between 1700 and 2140. This evidence supports Ms. M.B.`s testimony.

[459] For September 25, 2012, it shows Mr. Bourdon signed out to Corcan for work at 7:45 AM. There is no further entry.

[460] On February 12, 2013, he received from Modern Taxi, a taxi printout for fares on August 5, 2012, Ex. 12. This shows that on August 5, 2012, at 16:29, Mr. Bourdon’s phone 5805 called Modern for a pickup at the Econo Lodge. It also shows that at 17:08, same day, Mr. Bourdon’s phone 5805 called Modern for a pick up at PCCC. This evidence supports Ms. M.B.’s testimony.

7. Kenneth McMurray

[461] There is an admission that Mr. McMurray and Mr. Bourdon resided at PCCC from September 11, 2012 to September 27, 2012 and again in segregation at Joyceville Institution cells 111 and 109 from September 28, 2012 to October 3, 2012.

[462] Mr. McMurray first met Mr. Bourdon at the Hamilton Correctional Center. They were friends.

[463] As a result of their suspensions, Mr. McMurray and Mr. Bourdon were each held at Quinte Regional Detention Centre (QRDC) pending being transferred to Joyceville Institution. They were held in a holding cell together at QRDC, and transferred together. They spoke about their reasons for being back in custody.

[464] They were each housed in segregation at Joyceville Institution with Mr. Bourdon placed in the cell next to and right of Mr. McMurray's. They could communicate to each other through notes passed in the back of library books, or passed during yard and verbally through the windows in their cells.

[465] At yard, they were separated by a chain link fence because Mr. McMurray was classified medium security, and Mr. Bourdon maximum-security. But they could talk to each other through the fence and pass written notes to each other.

[466] Mr. Bourdon wanted Mr. McMurray to read notes to a female through a three-way telephone call with Mr. Bourdon’s father. Mr. McMurray kept some of the notes given to him by Mr. Bourdon. The notes in part sought to explain that Mr. Bourdon's father had lied to the female, and that Mr. Bourdon was telling the truth and further that the female had the right to remain silent and not talk to police about Mr. Bourdon. The notes provided the telephone number for Mr. Bourdon's father and for the female.

[467] The notes also indicated Mr. Bourdon telling Mr. McMurray that he wanted to have a relationship with Mr. McMurray. In view of the totality of the evidence that Mr. Bourdon’s interest was in having sex with women, Ms. M.B. and Ms. E.C., I find that the strong and reasonable and logical inference is that Mr. Bourdon is trying to manipulate Mr. McMurray, who is gay, to help him by offering to date him.

[468] The notes also indicated that the female lied and used his phone to deal drugs.

[469] Mr. McMurray did not telephone Mr. Bourdon’s father or the female, although he tried to lead Mr. Bourdon to believe that he had.

[470] These notes are filed as Ex.50-1 to 50-7. Excerpts from the letters are as follows:

Ex. 50-1

Rene did not pretend to be Ali. Ali wanted Rene to lie to you for him and Rene didn’t want to. Ali told Rene that if he wouldn’t that he would break with you. Rene didn’t want him to break up with you because you already said that you would harm yourself. Rene’s Mom left you a message that yes they do know Ali and Rene’s Dad lied to you. … Rene told you the truth about his charges… He even had proof that he has a Appeal. He brought the papers to your house to show you. He told you about his Lawsuit that he has against the Hafeway house in Hamilton… He didn’t lie. ….

Ex. 50-3

Rene’s parents are mad @ Ali for lying to them and to you and Rene. … His Mom did tell you that they know him and that her Husband Lied to you when you ask if he knew Ali because her Husband was mad at Ali. Ali is upset at you because he thinks that you may of told things to the police about Rene when he got picked up… Ali wants you to tell them (cops) that you don’t want to speak to them and that you are getting a lawyer. … Remember your rights in that they can’t force you to speak. They will scare and lye to you. ….

Ex. 50-4

Like I told you earlier I don’t care if you don’t want to help me. But please don’t lie to me. Just say you want or don’t want to. …. I would to be out and I want us to try it out. Please say yes. … So what do you wanna do. Should we try it out. And what are we gonna do about helping me since you are in a better situation and that I’ve help you …

Ex. 50-5

… I don’t want her to go against me and lie to them about me and to give them more things about me. I need her on my side to help me. …. My other phone that she is using … She texts a lot of shit that I can now prove what kind of character she is and every text to Ali and Ali to her on my iPhone that I got for her. I also have all text to Ali and Ali to me on my phone. … They won’t believe her. Her credibility want be good!! Theres a lot more. I’ll tell u tomorrow. Remember all I need is the phone #. … I like you and I want to try it out. Lets date. Lol ☺

Ex. 50-6

Pierre Bourdon, [phone number 0033]. My lawyer: Dawn Quelch

Ex. 50-7

Telephone # [phone number 9221]

Cross examination

[471] It was put to him that it was improbable that the guards would permit him and Mr. Bourdon to pass notes back and forth while they were in segregation. He denied that and said that this occurred. The notes are proof that it occurred.

[472] It was vaguely suggested to him that although he indicated he did not want to become involved, the very first thing he did when he returned to PCCC was discuss the notes with the other inmates and then with Correctional Officer Golemiec. It was vaguely suggested to him that in doing so he was seeking some favour or benefit from authorities, for example no criminal charges in the cancellation of his suspension locally.

[473] He was not cross examined on his videotaped statement or his testimony, if any, at the preliminary inquiry.

[474] He could be viewed as a Vetrovec witness, but the notes, which he says are in Mr. Bourdon’s handwriting, are reliable proof of his credibility.

8. Stephen Chester

[475] The defence concedes that Mr. Bourdon traded, sold and provided gabapentin to others. Ms. M.B. testified that he provided her with gabapentin. Texts confirm this.

[476] Mr. Chester testified that he bought gabapentin from Mr. Bourdon, approximately 6 times. He provided details as to how much it cost. The texts between Mr. Bourdon and Mr. Chester confirm his evidence.

9. John McCauley

[477] Mr. McCauley was a resident at PCCC and worked at Corcan with Mr. Bourdon. He testified that Mr. Bourdon asked him if he could get some Valium or sleepers for him. The texts between them appear to confirm this. He did not provide either Valium or sleepers to Mr. Bourdon.

10. Dr. Mayer

[478] He testified regarding the effects of Valium and sleeper type drugs. He testified as to the absorption rate of a person taking Valium or sleepers.

[479] He also testified as to the elimination rate for alcohol as well as for marijuana and crystal meth and cocaine.

[480] He gave some evidence about the use of gabapentin and its affect on a person.

IV. LEGAL PRINCIPLES

1. PRESUMPTION OF INNOCENCE

2. BURDEN OF PROOF

3. REASONABLE DOUBT

4. THE W.(D) PRINCIPLE APPLIES

5. ASSESSING THE EVIDENCE AND CREDIBILITY

6. R V. DD PRINCIPLE

7. POST OFFENCE CONDUCT

8. RECENT FABRICATIONS

9. SENT TEXT MESSAGES

1. PRESUMPTION OF INNOCENCE

[481] Every person charged with an offence is presumed to be innocent, unless and until Crown counsel has proven his/her guilt beyond a reasonable doubt.

[482] The presumption of innocence means that Mr. Bourdon started the trial with a clean slate. The presumption stays with him throughout the case. It is only defeated if and when Crown counsel has satisfied the Court beyond a reasonable doubt that Mr. Bourdon is guilty of the crimes charged.

2. BURDEN OF PROOF

[483] The person charged does not have to present evidence or prove anything in this case, in particular that he is innocent of the crimes charged.

[484] From start to finish, it is Crown counsel who must prove the person charged guilty beyond a reasonable doubt. It is Crown counsel who must prove Mr. Bourdon’s guilt beyond a reasonable doubt, not Mr. Bourdon who must prove his innocence. The Court must find Mr. Bourdon not guilty of the offences unless Crown counsel satisfied the Court beyond a reasonable bout that he is guilty of them.

3. REASONABLE DOUBT

[485] The phrase, “beyond a reasonable doubt”, is a very important part of our criminal justice system.

[486] A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[487] “An effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities – something less than absolute certainty is required and that something more than probable guilt is required.” R. v. Starr 2000 SCC 40, 2000 2 SCR 144.

[488] If, at the end of the case, after considering all the evidence, the Court is sure that Mr. Bourdon committed the offence, the Court should find Mr. Bourdon guilty of it, since the Court would have been satisfied of his guilt of that offence beyond a reasonable doubt.

[489] If, at the end of the case, based on all the evidence or the lack of evidence, the Court is not sure that Mr. Bourdon committed the offence, the Court should find him not guilty of it.

[490] The onus remains at all times upon the Crown to prove the guilt of the accused beyond a reasonable doubt. There is no burden or requirement on the accused to prove anything.

4. THE W. (D.) PRINCIPLE APPLIES

[491] The Supreme Court of Canada in R. v. W. (D.) 1991 93 (SCC), [1991], 1 S.C.R. 742, has directed that the court shall find the accused not guilty, firstly, if the court believes the testimony of the accused; secondly, if the court does not believe the testimony of the accused, but is left with a reasonable doubt by his evidence; and thirdly, even if the court is not left in a reasonable doubt by the evidence of the accused, but on the basis of the entire evidence, including the accused and defence evidence, the court is not satisfied beyond a reasonable doubt by the evidence of the guilt of the accused.

[492] The court is not to simply choose either the evidence of the prosecution or the evidence of the defence. Rejecting one does not mean one must accept the other. The stark alternatives of believing one side’s evidence over that of the other excludes the possibility of being unable to resolve conflicting evidence and thus being left in a state of reasonable doubt on whether the Crown has proven the case. The issue is not which of two versions is true, but rather on the whole of the evidence, whether the Crown has proven the guilt of the accused beyond a reasonable doubt.

[493] The W. (D.) principle applies in this case because there is some evidence which is favourable to the accused which has been identified by the defence and by me in these reasons.

[494] In the recent case of B.D., 2011 ONCA 51, the accused did not testify. Blair J.A. held that the W. (D.) instruction applies, no matter what the source of the exculpatory conflicting account (B.D., supra at para. 114):

What I take from a review of all of these authorities is that the principles underlying W. (D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt…

[495] The W. (D.) instruction should be integrated into the trial judge’s reasons and into the jury charge, when dealing with the elements of the offences charged and the elements of any defences raised by the evidence, provided there is conflicting evidence somewhere in the trial record raising issues of credibility in relation to these elements. From Applying the W. (D.) Framework: What has Changed? Code, J. May 2011.

5. ASSESSING THE EVIDENCE AND CREDIBILITY

[496] No evidence, whether favouring the Crown or the defence, should ever be assessed in isolation when determining credibility. The first and third steps in W. (D.) are closely related because acceptance of a powerful Crown case that proves guilt beyond reasonable doubt (at step 3) is a perfectly good reason for completely rejecting the accused’s exculpatory account (at step 1), and vice versa. As Doherty J.A. put it, speaking for the Court in R. v. D. (J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.):

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[497] “Accordingly, it should be made clear in your reasons, and in instructions to the jury, that steps 1 and 2 in the W. (D.) formula are only to be undertaken in the context of considering all the other conflicting evidence. R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.).” from Applying the W. (D.) Framework.

[498] I have also considered the decision of the Ontario Court of Appeal in R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 (Ont. C.A.) at paras. 5 and 8.

5 W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

8 As this court said in R. v. Boyce, 2005 36440 (ON CA), [2005] O.J. No. 4313 at para. 3:

[T]rial judge are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the context of the trial.

[499] In R. v. MG, 1994 8733 (ON CA), [1994] 93 C.C.C. (3d) 347 (Ont. C.A.), the Court of Appeal held that the most valuable means of assessing the credibility of crucial witnesses is to examine the consistency of their evidence. Inconsistencies on minor matters or matters of detail are normal and to be expected. Where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth. The court must then decide if it can rely on the testimony of a witness who has demonstrated carelessness with the truth. The totality of the inconsistencies is also an important consideration in order to assess whether the witness’ evidence is reliable. What is important is the significance of the inconsistency.

[500] The court may accept all, part or none of the evidence of the witness. A trier of fact is entitled to accept parts of the witness’ evidence and reject other parts and similarly, the trier of fact can accord different weight to different parts of the evidence that the trier has accepted. R. v. A.F., [2010] S.C.J. No. 44 at para. 65.

[501] The test must reasonably subject the witness’ story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. (See Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)).

[502] When it comes to assessing credibility, what O’Halloran J. said, for the majority of the B.C.C.A., in Rex v. Pressley (1948), 1948 353 (BC CA), 94 C.C.C. 29 at p. 34, is helpful. He said, and I paraphrase: The judge is not given a divine insight into the hearts and minds of the witnesses appearing before him or her. Justice does not descend automatically upon the best actor in the witness-box. The most satisfactory judicial test of truth lies in the harmony or lack of harmony of the testimony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case.

[503] On this point, I also consider the principle set out in R. v. MacIsaac 2015 ONCA 587, [2015] O.J. No. 4538 (Ont. C.A.):

46 It is open to the trial judge to draw inferences that reasonably and logically flowed from the facts established by the evidence. … R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 530-531.

[504] Justice Thorburn’s decision in R. v. Chauhan 2014 ONSC 5557, [2014] O.J. No. 4654 (SCJ) is also relevant at p. 10.

39 The court must be satisfied of two things beyond a reasonable doubt: (1) that a complainant is a credible witness, and (2) that her account is reliable. (R. v. J.W., 2014 ONCA 322, 316 O.A.C. 395 at para 26.)

40 Credibility is the witness' willingness to tell the truth. Reliability is the accuracy of the witness's testimony. Accuracy is affected by the witness's ability to accurately observe, recall and recount events.

41 A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. (R. v. Morrissey, 1995 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (CA) at para 33.) The reliability of the evidence is what is paramount. (R. v. Norman (1993) 1993 3387 (ON CA), 16 O.R. (3d) 295 at para 47, 87 C.C.C. (3d) 153 (C.A.) at para 47.)

42 Parts of a witness' evidence may be accepted and others rejected. Some parts may be more important than others. While a guilty verdict may be founded on the evidence of a single witness, a determination of guilt must not devolve into a credibility contest between two witnesses. Such an approach undermines the presumption of innocence and the requirement of proof beyond a reasonable doubt. (R. v. Vuradin, 2013 SCC 38 at para 21, [2013] 2 S.C.R. 639.).

44 In order to find that a complainant was drugged, there need not be conclusive expert evidence to corroborate the complainant's assertion that she was drugged. Drugging can be established by the Complainant's evidence alone. (R. v. Fleming, 2007 ONCA 808, [2007] O.J. No. 4562 at para 4; R. v. Bell, 2007 ONCA 320, [2007] O.J. No. 1725 at para 35; R. v. L.G., 2007 ONCA 654, [2007] O.J. No. 3611) and (R. v. Vant, 2010 ONSC 2474 at para 174, [2010] O.J. No. 2623.)

45 It is not necessary to establish the precise drug given, the precise dosage, or exactly how or when the drug was administered. Nor is it necessary, where a joint venture is established, to identify who administered the drug. However, the party asserting the claim must establish that "the only reasonable inference to arise on the evidence is that a drug had been administered." (R. v. Jorgge, 2010 ONSC 6272 at para. 210).

6. R v. DD PRINCIPLE

[505] Also relevant to this case is the principle set out by the Supreme Court of Canada in R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44, at para. 65.

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

7. POST OFFENCE CONDUCT

[506] In this case, the Crown submits that I can consider the evidence of Mr. McMurray and the notes Ex.50-1 through to 50-7 tendered into evidence through him and the Ceaser letter, Ex.11, received by Ms. M.B. in the mail, as post offence conduct by Mr. Bourdon.

[507] The Crown also submits that the texts sent August 6 – 10 by Ali offering innocent explanations for the touching on August 5 could also be considered post offence conduct.

[508] In this regard, I have considered the law as set out in R. v. Hall 2010 ONCA 724, [2010] O.J. No. 4603 (Ont. C.A.).

130 The significance of post-offence conduct evidence and the proper approach to such evidence by a jury, including the rejection of the traditional label, "consciousness of guilt", was explained by the Supreme Court of Canada in R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385. The court adopted the following succinct explanation of the logical significance of post-offence conduct by Weiler J.A. from R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.):

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.

131 However, the problem with post-offence conduct evidence is that it is often at best equivocal, and as the court stated in White at para. 22, "susceptible to jury error". Evidence of post-offence conduct is not evidence of the commission of a crime or its planning, which a jury can assess to determine the facts of an event and the identity of the perpetrator. Rather, it is evidence of what someone did after an event, which proves nothing directly, but from which the jury is asked to conduct a psychological analysis of what a person logically would or might do in given circumstances.

132 The court in White observed that the label "consciousness of guilt" should not be used for two reasons. First, the label reflects a conclusion of guilt before any analysis or weighing of the available inferences from the conduct. Second, it suggests that this evidence is a special category, rather than just a piece of circumstantial evidence to be weighed with all of the other evidence.

133 The Supreme Court in White went on to reject the defence position that the criminal standard of proof beyond a reasonable doubt, which applies to the ultimate verdict, should also be applied to evidence of post-offence conduct. The court reiterated the basic proposition that the criminal standard of proof applies only to the final determination of guilt or innocence and not to individual items of evidence, including post-offence conduct evidence. Therefore, the jury does not first determine beyond a reasonable doubt whether the Crown's interpretation of the impugned post-offence conduct is the correct one before considering that evidence in the context of all the other evidence. It may be only in the latter context that the jury can fully and properly assess the significance of the accused's conduct. As stated by the court at para. 57, it is "preferable simply ... to leave evidence of flight or concealment evaluated, but somewhat at large until the final stage of putting all the evidence together and seeing if it proves the case beyond a reasonable doubt."

136 The trial judge must provide a clear cautionary instruction to the jury against drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct. The trial judge must also instruct the jury that "they should reserve their final judgment about the meaning of the accused's conduct until all the evidence has been considered in the normal course of their deliberations": White, at para. 57.

137 As noted by the court at para. 21, post-offence conduct evidence is like other pieces of circumstantial evidence that may be subject to competing interpretations. To meet the circumstantial evidence test, "[it] must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion."

138 However, it is unlike other pieces of circumstantial evidence in a very significant way. Other circumstantial evidence, such as the classic example of wet ground in the morning, need only be consistent with a conclusion that a certain fact occurred, e.g., that it rained overnight. That fact might be an important piece of the Crown's case. But it is just one piece that, together with others, may prove guilt beyond a reasonable doubt. The difference with post-offence conduct circumstantial evidence is that, to be evidence that meets the circumstantial evidence test, it must be consistent only with the ultimate conclusion of guilt. It is the requirement of meeting the test for circumstantial evidence that creates the impression of a tautological analytical exercise by the jury. That is why it is so important for the jury to assess the post-offence conduct only as part of its ultimate assessment in weighing all of the evidence at the stage of determining whether guilt has been proved beyond a reasonable doubt, rather than treating it as a separate category.

8. RECENT FABRICATION

[509] The defence alleges that Ms. M.B., in failing to tell authorities on September 25, about the two sexual assaults, August 5 and August 30, her complaints on September 26 and thereafter, are recent fabrications.

[510] Evidence of prior consistent statements of a witness may be admitted in rebuttal of an allegation of recent fabrication. Such evidence could include Ms. M.B.’s disclosure to S., her texts to Ali about what she said happened on August 5, and her statement to police in October 2012 about the time of the last touching.

9. SENT TEXT MESSAGES

[511] Since submissions were made in this case, the Ontario Court of Appeal has upheld the application judge’s ruling in R. v. Marakoh 2016 ONCA 542,

... Once the [text] message reaches its intended recipient ... it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender (paras. 2 and 85).

[512] This principle renders admissible the texts received by Ms. M.B. and by Ms. E.C.. It is important that Ms. M.B. consented to police searching her iPhone with number 9221, and her INQ phone.

V. THE COUNTS IN ISSUE

[513] I will now deal with the counts and issues requiring a decision by his Court.

Count 2: Without reasonable excuse, fail to remain at all times in Canada within the territorial boundaries fixed by his parole supervisor.

Count 9: Fraudulently personate “Ali” with intent to gain advantage for himself, namely sexual intercourse.

Count 10: Commit a sexual assault on M.B. on August 5, 2012.

Count 11: Commit a sexual assault on M.B. on August 30, 2012.

VI. COUNT 2 – TERRITORIAL BOUNDARIES

Position of the Crown

[514] The LTSO, Ex. 1, provides that as a statutory condition Mr. Bourdon must “remain at all times in Canada within the territorial boundaries fixed by your parole supervisor.”

[515] The Crown submits that it has proven that Mr. Bourdon breached this condition in two ways. Firstly, it submits that in travelling to Amherstview, in particular to Ms. E.C.’s residence, he breached his parole officer’s instruction that he remain at all times within the City of Kingston limits. Secondly, he breached his parole officer’s instruction that he not attend at the residence of Ms. M.B..

[516] The Crown relies on the authority of R. v. Matte, unreported, Masse, J., OCJ, December 10, 2010, for the proposition that where the parole officer’s instruction is incorporated by reference into a condition of the LTSO, a breach of that instruction becomes a breach of a condition.

[517] On the first point, the Crown submits that the evidence proves that Mr. Bourdon knew that Amherstview was outside the city limits of Kingston because he sent a text to Ms. E.C. asking, “what's the town again?”, and a further text, “I would take a big chance and risk me getting seen”, in going to Ms. E.C.’s residence at her request.

[518] The Crown points out that the evidence establishes that he was at Ms. E.C.’s residence on August 29, September 4, September 18, September 23 and on another occasion when they visited puppies at a neighbour’s.

[519] On the second point, the Crown points to the evidence of parole officer Grey that he instructed Mr. Bourdon not to be at Ms. M.B.’s residence. Mr. Bourdon told him that he did not know where she lived. The evidence is that he was at her residence on a number of occasions, including August 30, September 8, September 16 and on September 25 when he was found there by the authorities and arrested. He was not signed out to her residence. Mr. Bourdon coached Ms. M.B. on what she could and could not say to the parole officer at the community assessment meeting.

Position of the Defence

[520] The defence does not raise any issues of credibility on this count.

[521] The defence agrees with the law as set out in Matte.

[522] On the issue of being in Amherstview, the defence submits that the instructions given by the parole officer to remain within the limits of the City of Kingston were too vague and too lacking in detail, in particular with respect to Mr. Bourdon, whose only connection to Kingston was as an inmate at PCCC, whose access to the community was restricted. The defence submits that there is no proof beyond a reasonable doubt that Mr. Bourdon had the necessary mens rea to breach this condition. She submits that the two text messages referred to by the Crown are ambiguous and could reference for example, a suburb, or a breach of another condition, for example, contact with a female.

[523] On the issue of being at Ms. M.B.’s residence, the defence submits that this is not a breach of the territorial boundary instruction/condition, but rather a breach of the reporting contact with a female condition. The instruction was for the purpose of protecting Ms. M.B., not restricting a geographic location in the submission of the defence.

[524] The defence submits that it is not the address at U[…] that is being restricted, rather it is the female contact that is being restricted, for the purpose of ensuring her safety. The defence submits that attendance at her residence is a breach of the report female contact condition and not of the territorial boundary condition.

Analysis: Count 2

(i) Attending in Amherstview

[525] What is important on this issue is the instruction given by parole officer Grey. He testified that he instructed Mr. Bourdon that he must stay within the City of Kingston limits. Mr. Grey testified that Mr. Bourdon knew that. He required a travel pass to attend in Toronto or Hamilton. The only way he could leave the Kingston city limits was to have a travel pass. Mr. Grey testified that in April of 2012, he had a discussion with Mr. Bourdon when he was found not to be at work and not signed out to be elsewhere. He also testified that when he first met with Mr. Bourdon, Mr. Bourdon was well-versed in his conditions. He knew exactly what his conditions were.

[526] He also testified that the specific boundaries of the City of Kingston were not discussed with or identified to Mr. Bourdon. He agreed that was a pretty vague description. He agreed that Amherstview was a short drive from PCCC. He agreed that Mr. Bourdon had no knowledge of the City of Kingston and that he was never allowed to go out and randomly explore Kingston by himself. In particular, he agreed that where the city limits are a drive of about 10 km it may not necessarily be clear to a person that they're no longer within the city limits. He agreed, “if you're not from this city, it may not be so clear…”, that you've left the city limits as you drive into Amherstview. He agreed that it was not made clear to Mr. Bourdon the distinction between the general downtown core and the greater City of Kingston.

[527] With respect to whether there was any evidence on the record as to a noticeable delineation signifying a change from the city of Kingston to Amherstview, the Crown pointed to the re-examination of parole officer Grey, where he said that there is a sign on Bath Road which says Amherstview, and one for Kingston on the way back to the city.

[528] On the basis of the evidentiary record, I am left with a reasonable doubt that the Crown has proven this breach. In coming to this conclusion, I have of course considered the two texts referred to by Crown counsel but they do not persuade me beyond a reasonable doubt.

(ii) Ms. M.B.’s Residence

[529] In accordance with the authority of Justice Masse’s decision in Matte, I find that parole officer Grey’s instruction to Mr. Bourdon to not attend at Ms. M.B.’s residence is incorporated into the territorial boundary condition.

[530] Section 134.2 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, provides that the offender shall comply with any instructions given by his parole supervisor respecting any conditions of his LTSO in order to prevent a breach of any condition or to protect society. Section 3 provides that the protection of society is the paramount consideration for the service in the corrections process.

[531] Mr. Grey instructed Mr. Bourdon that he was not to be at Ms. M.B.’s residence. Mr. Bourdon told him that he did not know where she lived. That statement was not true.

[532] “Territorial” is defined in the Oxford English dictionary as “relating to the ownership of land or relating to a territory or area.” Black's Law Dictionary defines “territorial” as “having to do with the particular geographical area.”

[533] In my opinion, the plain meaning of “territorial boundaries fixed by your parole supervisor” includes an identified residence which is a geographical area. Parole Supervisor Grey testified that he was very specific with Mr. Bourdon, asking him to be very specific about where he was signing in or out to in the logbook. He told Mr. Bourdon that the consequences of breaching the territorial boundaries condition would be a criminal charge.

[534] The reality is that Mr. Bourdon was severely restricted by the territorial boundaries instruction/condition. He could only travel to and from places authorized by his parole. Parole Supervisor Grey specifically prohibited Mr. Bourdon from attending at Ms. M.B.’s residence. Mr. Bourdon, on all the evidence that I accept, was there on many occasions.

[535] It may be that this instruction served to enforce the female contact condition as well, but for these reasons, I find that it was an instruction to prevent a breach of the territorial boundaries condition.

Decision: Count 2

[536] For these reasons, I find that the Crown has proven beyond a reasonable doubt the breach of the territorial boundaries condition in regard to Mr. Bourdon attending at the residence of Ms. M.B. on more than one occasion.

VII. COUNT 9: PERSONATION

Position of the Crown

[537] The Crown submits that the cases require proof beyond a reasonable doubt that Mr. Bourdon was representing himself as a person who is a real person, that he did so with intent to gain advantage for himself and that it was Mr. Bourdon who is doing the personating.

Ali is a real person

[538] The Crown agrees that it must prove that Ali is a real person.

[539] The Crown points to the evidence of Mr. Grey and Sgt. Brooker and the PCCC records that show Ali Showbeg was a resident while Mr. Bourdon resided there.

[540] Ex. 18, Mr. Bourdon’s detailed phone billing records for March 25, 2012, show “Ali Shauve (Bishop)” in his writing as one of his contacts, with the same telephone number as on the PCCC records for Ali Showbeg ([phone number 8977]).

[541] There is a message to Ms. M.B. on July 19, 2012, “Ali Shauve wants to be friends on Facebook.”

[542] The Crown submits that this proves that Ali is a real person.

[543] The Crown submits that Ms. M.B. met a real person at the bus stop. That person knew her ex-boyfriend “nines”. They were inmates at PCCC together. Mr. Bourdon refers to “my bro Bishop” to Ms. M.B..

The Advantage

[544] The Crown submits that it is a subjective inquiry that Mr. Bourdon acted with intent to gain advantage for himself. In response to the defence position that this inquiry must be done on an objective standard, the Crown submits that in any event that standard too is met.

[545] The Crown submits that the evidence proves beyond a reasonable doubt that Ms. M.B. had no interest in any form of sexual, or even romantic or affectionate relationship with Mr. Bourdon at any time, even after Ali dies and encourages her to do so in his final note to her. He submits that the evidence proves that the only reason she agreed to a specific form of sex with Mr. Bourdon on August 30 is because of “the deal” she made with Ali. The deal was that he would have his surgery paid for by Mr. Bourdon and sex is how Mr. Bourdon would be repaid. The Crown submits that Mr. Bourdon as the author of the Ali texts, and through his own participation, manipulated Ms. M.B. to this belief and agreement. The Crown submits that the evidence proves that this is the only basis upon which Ms. M.B. agreed to sex with Mr. Bourdon, and that it is only through his personation and his intention that he gained that advantage.

Mr. Bourdon is the author of the Ali texts

[546] The Crown submits that the court must consider Ms. M.B.’s situation as alone, a recovering addict, no support or family, fighting against relapse and 18 years of age. Mr. Bourdon was 35 years old. Her source of friends was apparently Narcotics Anonymous.

[547] The Crown submits that the evidence overwhelmingly proves beyond a reasonable doubt that Mr. Bourdon was the author of the Ali texts. The evidence includes:

1. Ali’s first contact phone was activated on July 19, 2012, which is the same day that he first contacted Ms. M.B.. This is the day after Ms. M.B. and Mr. Bourdon had dinner. The original user name was Mr. Bourdon. This was later changed to show him as the billing name at his parents’ address in North Bay;

2. There are two phone numbers used on Ali’s 0242 phone that match contacts on Mr. Bourdon’s authorized flip phone, namely Ginette and Amanda;

3. There is a call made on Ali’s 0242 phone on July 31, 2012 to the CIBC banking phone number shown on Mr. Bourdon’s detailed billing records, Ex. 18;

4. Kristi Jackson, manager of lawful access response at Rogers, testified that Ali’s phone 0242 never connected with a cell phone tower west of Bath/Millhaven. This is despite the fact that Ali texted that he lived and worked in Toronto;

5. She also testified that oscillations of signals for that phone were consistent with the user at the time being at Econo Lodge and at PCCC;

6. The unauthorized phone that was found hidden in Mr. Bourdon’s waistline on September 25, 2012 had the same phone number ending in 0801 that had been used by Ali to text since about September 1, 2012;

7. Although the evidence is that there were 10,507 texts between Ali and Ms. M.B. commencing July 19, 2012, after Mr. Bourdon's arrest on September 25, 2012, she was unable to ever again reach Ali by text;

8. The evidence is that Ali used Ms. M.B.’s old cell phone, an INQ, for a short time after she had given it to Mr. Bourdon in exchange for him giving her a new I phone;

9. There are examples in the text message records showing Mr. Bourdon sending a text message to the Ali phone which was then forwarded on to Ms. M.B. so as to look at her as if it had originated with Ali;

10. The text messages demonstrate that there are occasions when Mr. Bourdon says to Ms. M.B. verbally or in a text that he has just heard from Ali with no corresponding texts from Ali;

11. There is evidence showing a cell phone contact with the Amherstview tower by Ali’s 0242 phone on August 29 during the evening that Mr. Bourdon drove Ms. M.B. to Ms. E.C.'s residence for a sleepover. There is no evidence that Ali was in town;

12. There is an example on August 29 of the Ali 0242 phone connecting with a tower near Mr. Bourdon's workplace at Corcan;

13. There are examples where Ali and Mr. Bourdon play off each other to Mr. Bourdon's advantage, for example, Mr. Bourdon is interested in having a friends-with-benefits relationship with Ms. E.C., but she is resistant. Ali texts her to tell her that that can work. Another example is when Ms. M.B. proposes to Mr. Bourdon that they not go through with “the deal” and not to tell Ali. She soon receives a text from Ali telling her that he will know if she does not go through with the deal; a further example is where Ms. E.C. accuses Mr. Bourdon of lying to her. She soon receives the text from Ali, assuring her that Mr. Bourdon is not lying to her; and

14. The general tenor of all of the texts by Ali is to put Mr. Bourdon in a favourable light, to get pictures sent to Ali, to get Ms. M.B. in a hotel room with Mr. Bourdon alone or to have Ms. M.B. have three-way sex with Mr. Bourdon and ultimately to go through with the deal for sex with Mr. Bourdon. Another example is when Ms. M.B. discloses to Ali that Mr. Bourdon touched her without consent at the Econo Lodge. Ali quickly offers up innocent explanations for such conduct.

[548] The Crown also asks the court to consider the evidence of Mr. McMurray and the letters that were provided by him as either authored by or dictated by Mr. Bourdon.

[549] The Crown also asks the court to consider letter received by Ms. M.B. from Ceaser, which contains details which could only been known by Mr. Bourdon, Ms. E.C. or herself. Fingerprints taken from that letter match those of an inmate who was incarcerated on the same range as Mr. Bourdon.

[550] The Crown submits that the evidence provided by Mr. McMurray and the Ceaser letter are admissible evidence of Mr. Bourdon continuing with the personation.

Position of the Defence

[551] With respect to this count, the defence raised no issues of credibility.

[552] The defence advanced was in respect of the two legal issues, namely, 1. Ali is a real person; and 2. The Advantage.

[553] The defence made no submissions with respect to the issue of whether Mr. Bourdon is the author of the Ali texts. When asked by the Court on her position on this issue, defence counsel submitted that “the evidence is significant in that area.” She confirmed that if the court were to find that Mr. Bourdon was the author of the Ali texts, then her only submissions with respect to Count 9 are as I have identified as 1. and 2. above. Defence counsel confirmed that she agrees that the court can look at all of the texts in determining whether personation is made out.

[554] The defence confirmed that the case law that is relevant to this count is as set out in R. v. Jahanrakhshan [2013] BCJ No. 844 (BCCA) and R. v. Hetsberger [1980] O.J. No. 419 (Ont. C.A.).

Ali is a real person

[555] The defence points out that Ms. M.B. could not recall when she met Bishop at the bus stop, that she was never introduced to him, that she never spoke to him or even said as much as “hi”. She testified initially that Ali did not tell her his last name, but then corrected herself to say that eventually he did. She never testified as to what he said his last name was. She testified that Mr. Bourdon told her Ali’s last name was Nadam. She submits that proof of the person’s first and last name is important in proving that the personated person was a real one.

[556] She further submits that in this case, physical appearance is important, but Ms. M.B. gave no physical description of the person she saw at the bus stop. Ms. M.B. could not identify the person shown in the couple of photos reportedly of Ali as the person that she saw at the bus stop. She submits that there is no proof beyond a reasonable doubt linking the photographs to the person at the bus stop. Defence counsel submits that this is very important because the Crown has to prove that the person being personated is a real person.

[557] Defence counsel further submits that there is no evidence as to the physical appearance of Ali Showbeg.

[558] Defence counsel submits that the court cannot assume that Ali Showbeg is Ali Shauve or Nadam, or the person at the bus stop.

[559] Defence counsel says that the Crown must prove beyond a reasonable doubt that Ali, personated author of the texts, is a real person and that the evidence does not do so.

The Advantage

[560] The defence submits that the sheer act of obtaining sexual intercourse does not amount to an “advantage” at law.

[561] Defence counsel agrees that the word “advantage” is to be given a broad meaning.

[562] Defence counsel submits that the decision in R. v. Boyle 2005 BCCA 537, para. 5, is authority for the proposition that the purpose of s. 403 is to prevent individuals from assuming the identity of someone else with the intention of gaining an advantage which the individual would not otherwise be enabled to obtain. The defence submits that the cases of Jahanrakhshan, Hetsberger and Boyle set out the law relevant to this count. She concedes that there is no case that holds that “advantage” must be assessed on an objective standard.

[563] Nevertheless, she submits that this court should assess whether Mr. Bourdon intended to gain an advantage on an objective basis. She submits that Mr. Bourdon's subjective belief that obtaining sexual intercourse with Ms. M.B. was an advantage is not enough. That determination must be made on an objective standard. She submits that sexual intercourse may be the subject of pleasure to Mr. Bourdon, but it does not improve his position on an objective standard. It does not improve his living circumstances, his community privileges or his LTSO conditions. She points out that in fact doing so jeopardized his position.

[564] In reply to this submission by defence, Crown counsel points out that s. 403 clearly indicates that everyone with intent to gain advantage for himself, and thus it is Mr. Bourdon’s subjective intent and belief that is relevant. The Crown notes that that is a harder standard to the Crown to prove beyond a reasonable doubt than an objective standard. The Crown submits that in any event, viewed from an objective standard, Mr. Bourdon intended to and achieved an advantage to himself which he would not otherwise have achieved as a result of the personation.

ANALYSIS: COUNT 9

Ali is a real person

[565] The evidence conclusively proves that Ms. M.B. knew that her ex-boyfriend “nines” knew a real person named Bishop from jail. She knew that Bishop had been in a halfway house across from the Frontenac Mall. She and her ex-boyfriend “actually physically saw Bishop at the bus stop”, once or twice. Her ex-boyfriend spoke to Bishop on those occasions, although she did not and was not introduced.

[566] Mr. Bourdon learned about this at their first dinner on July 18, 2012. “Somehow we stumbled upon someone and we both knew named Bishop. I knew him, I knew of him, I didn't know him. However, Rene was actually best friends and I guess you could say an adopted brother with him.” At the same dinner, Mr. Bourdon learned that she “had a friend who was actually very acquainted with Bishop and her name was Cindy and he wanted to know more about her or what her name was…”.

[567] Later that evening after the dinner, Mr. Bourdon texts that he just finished talking to “my bro Bishop”. She reminds him that her mutual friend with Bishop is Cindy. She also tells him to tell Bishop that Bishop might know her if he says that she is “nines girl”.

[568] The next day, July 19, 2012, in the first e-mail from Bishop to Ms. M.B., Bishop texts, “it's Bishop Rene’s friend.” She reminds him that she met him at the bus stop, “I was nines girlfriend.” Bishop also wanted to know if she still spoke to Cindy.

[569] Eventually, Bishop told her that his name was Ali, “whereas Bishop was his nickname.” “I later knew him as Ali and that's what I felt more comfortable calling him.”

[570] In texts sent by Ali to Ms. M.B. on July 19, 2012, he speaks as if he knows “nine” and Mr. Bourdon.

[571] Also on July 19, she received a Facebook notice that “Ali Shauve wants to be friends on Facebook”. On July 25, on Facebook, she is told “Ali Shauve to you it’s Bishop”. She responds “so this is your real name.”

[572] Ali texts to her on July 25, that he knows parole makes it hard for Mr. Bourdon from his time “at the house.”

[573] On July 27, Ali texts, “ever since I saw you with nine I liked you.”

[574] The arguments raised by the defence, in her submissions and in her cross-examination of Ms. M.B., that the Crown has not proven Ali to be a real person, do not detract from the fact that there was a real person who was seen by Ms. M.B. at the bus stop. She knows that that person was in jail with her ex-boyfriend, that he was in a halfway house across from the Frontenac Mall, that he would know her as nines girlfriend and that they had a mutual friend named Cindy.

[575] I find that it has been proven beyond a reasonable doubt that that was the person that Mr. Bourdon was personating, the real person seen by Ms. M.B. at the bus stop. The evidence leads to the inescapable conclusion that that was Mr. Bourdon’s intention. Although Mr. Bourdon filled in details of Ali’s life, clearly from what he learned from Ms. M.B. at their initial dinner, he knew that she knew a real person that she had seen at the bus stop.

[576] The evidence that Ali Showbeg was a resident at PCCC who had the same phone number as noted by Mr. Bourdon in his detailed phone bill records under the name “Ali Shauve (Bishop), is further proof, to that which I list below, that Mr. Bourdon was the author of the Bishop/Ali texts. (Exhibits 13 and 18).

The Advantage

[577] I accept the law as set out in Hetsberger, para. 7 and in Boyle at para. 5, “with the intention of gaining an advantage which the individual would not otherwise be enabled to obtain.”

[578] It is proven beyond a reasonable doubt that Ms. M.B. had no interest or intention whatsoever in a relationship with Mr. Bourdon that involved affection, or hugging or sex. She made that clear at the outset, on July 19, 2012 in a text to Ali, “Rene and I are not or will ever date”. She testified, “Bishop had indicated, that Rene and I should be more than friends and I was setting the record straight that that was not possible. Q. Did you ever have any romantic intentions with Mr. Bourdon at any point? A. Absolutely not”.

[579] She testified that although she agreed to three-way sex with Ali, she would agree to doing so with her best friend, a female. She became upset and refused when Ali tried to insist that it be with Rene.

[580] Ms. M.B.’s testimony, which is confirmed by her texts, demonstrates conclusively that the only reason that she agreed to have sexual intercourse with Mr. Bourdon is so that Ali, who was now her fiancé, everything she ever wanted in a man, would undergo life-saving surgery. He did not want Mr. Bourdon to have to pay for the surgery because that would deprive Mr. Bourdon of money to fund his appeal to gain his freedom from being wrongfully convicted. The sex was the only way that Ali could repay Mr. Bourdon for paying for the surgery.

[581] She set very specific limits on the sex act that she would permit. It was an arrangement. It was never as a boyfriend/girlfriend situation. She used the word F-U-C-K to make it as least personal as possible. She wanted to get it done and over with as soon as possible. She had some wine because there was no way she was going to engage in sex with Rene sober. She made it clear that she didn't want any additional sexual activity other than regular vaginal sex. He wasn't even allowed to touch her with his hands.

[582] She made it absolutely clear following the limited arranged sexual intercourse on August 30, “once he became affectionate and starting acting weird, it did add a new element and then I told him that, you know, in regards to hugging and stuff like that we shouldn't anymore”.

[583] Even after Ali died and left a note to her encouraging her to be with Rene, she told Rene that they would be no more than friends. “I believe what he said but you and I will never be more than friends.” (Text: Sept. 17, 2012).

[584] All of this evidence confirms the “Why”, Mr. Bourdon texted as Bishop and Ali, which I find for reasons that I set out below, to Ms. M.B.. It was the only way that gained him what he wanted, namely, sex with Ms. M.B..

[585] The evidence proves conclusively and beyond a reasonable doubt that Mr. Bourdon personating Bishop and Ali in text messages intended to gain an advantage that he could not otherwise obtain, namely sex with Ms. M.B.. It is clear that subjectively he wanted and intended that result and that subjectively he found that to be an advantage to him. He was not otherwise going to secure sex with Ms. M.B.. I find as a strong, reliable and logical inference arising on all of the evidence that his professed reluctance to partake in “the deal” was only a ruse to alleviate any suspicions Ms. M.B. might have.

[586] In my view, this essential element of s. 403 is proven beyond a reasonable doubt on the evidence in this case.

[587] Even if as defence counsel maintains, the determination must be made from an objective standard, I find that that objective standard is also met beyond a reasonable doubt. Objectively viewed, sex with Ms. M.B. that was not otherwise available fits the definition set out in both Hetsberger and Boyle.

Mr. Bourdon is the author of the Ali texts

[588] I agree with defence counsel that the evidence is “very significant” that Mr. Bourdon is the author of the Bishop/Ali texts.

[589] In addition to the evidence which I have listed in paragraphs 547, 548 and 549, as identified by the Crown which I accept as proven beyond a reasonable doubt, there is the detailed monthly billing records in Mr. Bourdon's handwriting referencing “Ali Shauve (Bishop)”. Ex. 18.

[590] Ms. Jackson’s testimony is that there was no Bishop or Ali who was ever connected with phone number 0242.

[591] Ms. Jackson’s testimony connects Mr. Bourdon to both 0242, Ali’s phone, and to 9221, Ms. M.B.’s new phone. Both are Rogers accounts, set up using Mr. Bourdon’s name and his parents’ address.

[592] It is significant that there was never any verbal communication by Ali in respect of significant matters such as the engagement and ring, his serious health issues, his arrest and his astonishing recovery from death, or Mr. Bourdon’s arrest.

[593] Ali texted her on August 5, 2012, to say that he was in Belleville. There is no corresponding cell tower signal.

[594] It is also significant that when Ali is in a serious situation, other persons use his phone to text, not call, for example Dave, the police officer, Officer Knight, the nurse “Ali wants a pic”, Nurse Becky, and the doctor.

[595] The evidence connects Mr. Bourdon to the Ceaser letter. I have also considered the letters referred to in Mr. McMurray’s evidence. This evidence, together with the Ali texts offering innocent explanations for the touching at the Econo Lodge, has been considered in accordance with the principles set out in Hall.

[596] The evidence conclusively proves beyond a reasonable doubt that Mr. Bourdon is the author of the Bishop/Ali texts.

Decision on Count 9

[597] For these reasons, I find Mr. Bourdon is guilty of Count 9.

VIII. COUNT 10: SEXUAL ASSAULT, ECONO LODGE, AUGUST 5, 2012

Position of the Crown

[598] The Crown submits that the authorities hold that this court can find that Ms. M.B. was drugged on this occasion, on the basis of her testimony and without the necessity of expert evidence. Defence counsel agrees. So do I.

[599] The Crown submits that Ms. M.B.’s description of Mr. Bourdon mixing a drink of Crystal Light like powder into the red aluminum bottle while in the bathroom is credible, and that the description of her symptoms is consistent and credible.

[600] He points out that she had a high tolerance for marijuana and that the suggestion that the marijuana was laced with something comes only as a result of that suggestion being made by Ali after the fact, in an attempt to keep blame away from Mr. Bourdon.

[601] The Crown submits that this court should be satisfied that Ms. M.B. was drugged by Mr. Bourdon and that the alleged nonconsensual touching while she was under the influence of that drug proves a sexual assault beyond a reasonable doubt.

[602] The Crown asks me to consider the testimony of Mr. McCauley about being asked to obtain valium or sleepers for Mr. Bourdon. That testimony is confirmed by text messages. However, I can place no weight on this evidence on the issue of whether Mr. Bourdon intended to or did in fact drug Ms. M.B. because there are other inferences that reasonably and logically flow from this evidence, for example, that Mr. Bourdon wanted the drugs for pain, to help sleep, or simply as a not fully recovered addict. In any event, he was unable to obtain those drugs prior to August 5.

[603] The Crown submits that, although Ms. M.B. did have text message conversations with persons between 2 PM and 9 PM that day, during which time she said she was in and out of sleep, there are significant gaps in her texting consistent with her testimony as to her symptoms. I note that at 3:05 PM, 5 PM, 8:01 PM, 8:30 PM and 9:36 PM which are during these gaps, Ali is texting her on 0242. This supports her testimony that she was in and out of sleep, because it could only be during such times that Mr. Bourdon, who was in the room with her, could text her as Ali without being detected.

[604] The Crown points out that in the relevant time period she speaks about being tired, just kind of laying here half awake and half asleep and almost fainting.

[605] The Crown points out that while Ms. M.B. was challenged on cross-examination that it was in fact she who booked the hotel, the texts prove that she didn't know the name of the hotel until she was told by Ali.

[606] The Crown points out that her evidence as to when Mr. Bourdon left the hotel is confirmed by the taxi records, with respect to the 5PM sign in.

[607] The Crown points out that Ms. M.B. testified that she only caught Mr. Bourdon touching her once. He suggested that she did not embellish or exaggerate her testimony or accuse Mr. Bourdon of any more serious conduct. Her accusations are confirmed in her e-mails to Ali. The Crown submits that because of the defence raising the issue of recent fabrication by Ms. M.B. as to this assault occurring, such evidence can be used to rebut that submission.

[608] The Crown submits that the efforts by Ali to provide innocent explanations for such alleged conduct, this court having found that Mr. Bourdon is the author of those texts, are supportive of Ms. M.B.’s credibility and reliability as to this assault.

[609] The Crown submits that the principle in the DD case answers the defence submission that Ms. M.B.’s credibility should be doubted because she failed to report this assault or the August 30 assault to the authorities, Mr. Grey and Sgt. Brooker, on September 25 or sooner. He further submits that in any event she has provided explanations, namely that she was convinced by Ali that the weed was bad and that Mr. Bourdon was affected too and so upset by his conduct that he was suicidal to the point that she agreed that he was not responsible for his actions, “wasn't technically responsible for his actions” (Text Aug. 9, 2012). She explained that this was why she continued her friendship with Mr. Bourdon. She further explained that on September 25, 2012, she believed that Mr. Bourdon was innocent of the charges that he had been convicted of and that he was in a lawsuit with the police over it. For these reasons, she was distrustful of the police on that day. She felt that he was just being harassed and getting into trouble for no reason. On that date, her initial reaction was to lie to protect Rene because of her belief that he was innocent of the charges and that he had been wrongly accused and convicted.

[610] The Crown also asks the court to find that the two apologies offered by Mr. Bourdon can be taken as admissions or confessions to the sexual assault that Ms. M.B. alleges. One of these apologies is contained in a text of August 10. The other is an in person apology in the car on August 22, as testified to by Ms. M.B.. In my view both of these apologies are ambiguous and it would be unsafe to take them as confessions to the criminal act alleged.

Position of the Defence

[611] On this count, the defence submits that the court should not find Ms. M.B. to be a credible and reliable witness and to reject her evidence concerning an assault on August 5, 2012 at the Econo Lodge.

[612] The defence submits that Ms. M.B.’s failure to report this assault, and also that of August 30, to parole officer Grey and to Sgt. Brooker on September 25 at the time of Mr. Bourdon's arrest strongly supports its position.

[613] The defence submits that at the point in time that she reported these assaults to authorities on September 26, she had motivation to lie. She admitted that as a result of Mr. Bourdon’s father telling her that he did not know of Ali, she became beyond furious, beyond upset. Then she called authorities.

[614] The defence also points out that despite what the defence characterizes as “tremendously upsetting, shocking” assaults upon her, she maintained her friendship with Mr. Bourdon.

[615] The defence points out that she remained willing to lie to the parole officer about her relationship with Mr. Bourdon in order to protect him and maintain their friendship despite these assaults and despite knowing that he had been convicted of sexual assault offences.

[616] The defence submits that there was no power imbalance as between Mr. Bourdon and her, so as to influence her decision in this regard.

[617] The defence alleges recent fabrication in respect of the allegation that she was drugged and that she was sexually assaulted.

[618] The defence submits that reasonable and logical inferences other than drugging flow from the evidence. Defence submits that Ms. M.B. was a regular user of marijuana during that summer. The defence submits that she downplayed her alcohol consumption. The defence submits that she had relapsed into her addiction for Crystal meth. Any of these problems, or a combination would account for the symptoms that she described as having suffered on August 5.

[619] With respect to the unwanted touching on August 5, defence counsel submits any such misconduct would be horrific to her. The defence points out, however, that no mention is made of this in the multiple text discussions that Ms. M.B. is involved in that day, for example with R., S. and her landlady during the relevant time. The defence submits that there are many texts, and that they demonstrate coherence in the conversations and use of fine motor skills. This is inconsistent with the symptoms that Ms. M.B. described. The defence submits that she does not describe her symptoms in those texts.

[620] The defence submits that Ms. M.B. was inconsistent in her testimony as to the timing of the last touching, saying firstly that it occurred around 5 PM, but then changing her testimony to place it between 9 and 9:20 PM.

[621] I have already dealt with the apology evidence and the McCauley evidence. I agree with the defence that such evidence is ambiguous and could lead to other reasonable and logical inferences.

[622] The defence also submits that the allegations made by Ms. M.B. concerning August 5 are inconsistent with her going out and partying with her friend S. later that evening and with returning to sleep alone in that hotel room for the night.

Crown Reply

[623] The Crown submits that there was a power imbalance and coercion influencing Ms. M.B. to be untruthful with the authorities on September 25. She was manipulated by the Ali texts, and by Mr. Bourdon to believe that there was an innocent explanation for August 5 and further, that because of his lawsuit he was simply being harassed by the police. The manipulation is demonstrated in the those texts that she sends to Ali and in Ali’s texts.

[624] Although Ms. M.B. demonstrated that she was capable of making decisions in the summer of 2012, the texts demonstrate the overwhelming influence of the Ali texts, coupled with the in person influence of Mr. Bourdon.

[625] The Crown submits that the evidence does not support the defence submission that Ms. M.B. abused alcohol prior to the August 5 incident and that she did not relapse into using Crystal meth until August 22. He points out that her evidence is that she was a regular user of marijuana and had a high tolerance for it and furthermore, the marijuana used on August 5, came from her regular supplier.

[626] The Crown points out that in regard to the timing of the last touching on August 5, that testimony came at the end of a long day and included her testimony that she was not certain. She refreshed her memory in that regard and indicated that the last touching occurred between nine and 9:20 PM, “I can't be exact but it wasn't long before he left”. This is consistent with the statement that she gave to the police in October 2012 fixing the time at 9:23 PM.

ANALYSIS - COUNT 10

[627] The issue on this count is the credibility and reliability of Ms. M.B. as a witness.

[628] It can be fairly said that her testimony in 3 main areas could give rise to serious concerns. These areas are:

1. She fell in love with, was engaged to, was going to marry, he was everything she ever wanted, texted all day and night with, yet never met and never spoke to a person she believed to be real;

2. She would make a deal with that person to have sex with Mr. Bourdon in order to repay Mr. Bourdon for using his money to pay for this person’s surgery, money that Mr. Bourdon was using in a lawsuit to prove that he was wrongfully convicted; and

3. She believed that Ali could die, yet three days later he could be alive again.

[629] This testimony could appear to be hard to believe in the everyday experiences of most people.

[630] However, I find without hesitation that Ms. M.B. is a credible and reliable witness on the basis of firstly, her testimony, secondly, her testimony is supported by that of Ms. E.C., thirdly, her texts confirm her testimony, and finally, Mr. Bourdon’s texts on 5805, and as Ali on 0242, then 0801 confirm her evidence. Even in the absence of this latter evidence of texts sent by Mr. Bourdon or by Ali, I find Ms. M.B. to be a credible and reliable witness.

Ms. M.B.’s Evidence

[631] Her evidence must be considered in context.

[632] At the relevant time, she was young, alone, without any family or friends for support, except Ms. E.C., Mr. Bourdon and Ali, attending Narcotics Anonymous as a recovering drug addict, struggling to overcome her additions. She continued as a regular user of marijuana, and relapsed, under Mr. Bourdon’s influence, to using crystal meth.

[633] She admitted to falling in love with a person, willing to have sex with, becoming engaged to, and concluding he was everything she wanted her man to be, having seen him only briefly at a bus stop and then only communicating by text. Despite the fact that he promised to meet her in Kingston, and he always failed to make it to Kingston, giving unusual excuses, and although he never asked her to visit him in Toronto, she admitted that she believed and loved him.

[634] The Modern Taxi receipts, Ex. 12, confirm her evidence about Mr. Bourdon being at the Econo Lodge and leaving at 5 PM to sign in, and then returning.

[635] Mr. Bourdon’s telephone records, Ex. 53, show a call on August 5, 2012, at 9:28:16 PM to Amey’s taxi confirming her evidence as to when he left the Econo Lodge.

[636] The contents of the Ceaser letter, Ex. 11a and b, supports her testimony.

[637] She explained that she believed what Ali and Mr. Bourdon told her because, “I agreed to be engaged to the perfect man. Everything I wanted him to be. He was charming, although he had a bit of a history he deserved a second chance”. “He made me feel special.” This is the key. She testified that her ex-boyfriend R. did not make her feel special.

[638] She testified that she texted Ali all day every day. This is confirmed in the number of texts, 10,507 in 60 days.

[639] She candidly admitted that when Mr. Bourdon's father said that he did not know Ali, she felt, “upset did not describe it… Furious did not describe it”.

[640] She did not allege more serious misconduct by Mr. Bourdon on either August 5 or August 30.

[641] She admitted that she did not tell S. the name of the person who touched her. It would have been easy for her to say that she had told her and thus avoid the cross examination on that point.

[642] She did not claim to be drunk in preparation for the August 30 sex.

[643] She admitted that she made the August 30 arrangement with Mr. Bourdon. She told him he was going to do it. She persuaded him to do it and she told him when and where. She took ownership of those arrangements. Her texts confirm her testimony in this regard.

[644] The defence concedes her credibility with respect to Count 7, concerning Mr. Bourdon's consumption of marijuana and Crystal meth and with respect to Count 8 concerning his consumption of alcohol on September 8.

[645] There was no evidence of Ms. M.B. giving a prior inconsistent statement or testimony. The one reference to a prior police statement confirmed her testimony that on August 5, at the hotel, Mr. Bourdon last touched her at 9:23 PM.

[646] I find that the only reasonable and logical inference is that Mr. Bourdon drugged her on this occasion. She admitted that she got the weed from her usual supplier. I accept that she had never had such a reaction. I accept that she was not under the influence of alcohol or crystal meth.

[647] I consider the principles set out in DD in considering the defence submission concerning her failure to report both alleged sexual assaults to the authorities earlier or on September 25. I consider she lied to Officer Grey and Sgt. Brooker on September 25. I note that she did disclose to her friend S. and to Ali, the latter is confirmed in her texts. I accept her explanation for not reporting earlier and for lying to the authorities on September 25. She had been convinced that Mr. Bourdon was innocent of his charges, that he was suing the police and this was just harassment by the police.

[648] I note that Ms. M.B. did not describe either sexual assault as shocking, tremendously upsetting or horrific. It was the defence that used those words to characterize those assaults. She described the incidents in a matter-of-fact manner without such characterization. It was learning of the deception on September 26 that she characterized as devastating.

[649] She admitted to carrying on her friendship with Mr. Bourdon, despite what she thought he had done to her on August 5th.

[650] I have considered that Ms. M.B. was mistaken as to how they got to the Econo Lodge and whether S. left weed in her hotel room. These are minor collateral matters.

[651] I have considered that Ms. M.B. told the police in her statement in October of 2012 that the last touching occurred at 9:23 PM. This confirms her revised testimony and the time is also confirmed in her texts to Ali. This evidence rebuts the defence position of recent fabrication as to the timing of the last touch.

[652] Given Ali’s (Mr. Bourdon) interest in sex involving Mr. Bourdon and Ms. M.B., and Mr. Bourdon’s interest in sex with Ms. E.C., and the evidence that it was not Ms. M.B., I conclude that it was Mr. Bourdon, who booked the night at the Econo Lodge, coupled with telling Ms. M.B. to bring and wear a blindfold, leads me to the inescapable conclusion that Mr. Bourdon intended some form of sex with Ms. M.B. in that room that night. There is no other reasonable and logical inference to be drawn.

[653] The evidence concerning the cell tower contact by 0242 on the evening of August 29, 2012, confirms her testimony that Mr. Bourdon drove her to E.C.’s that night.

[654] As I have stated in para. 603, Ali texts to her during the gaps in her texting. Such evidence confirms her testimony.

[655] As a witness, she was responsive. She answered directly the questions asked of her. She was not evasive.

[656] Her testimony was internally consistent and consistent with the other evidence.

[657] She admitted to conduct that showed her in a bad light or that was against her interest, including that which I have listed.

[658] There was no drama or theatrics in her testimony. She was not unduly or inappropriately emotional.

[659] She did not testify as to more egregious conduct by Mr. Bourdon on August 5 or August 30, although she could have.

[660] There was no evidence of prior inconsistent statements or conduct.

Ms. E.C.’s Evidence

[661] As I have stated, I find Ms. E.C. to be a credible and reliable witness.

[662] She was convinced that Ali was a real person.

[663] She believed Ms. M.B. that she truly fell in love with and became engaged to Ali through texts only. She believed Ms. M.B. loved Ali.

[664] She too was manipulated by Mr. Bourdon through his deception into offering sex to him.

[665] She was convinced that Ali died and then came back to life.

[666] Ms. E.C.’s evidence supports Ms. M.B. as a credible and reliable witness.

Ms. M.B.’s Texts

[667] She immediately texted Ali about Mr. Bourdon touching her. This weighs against recent fabrication.

[668] Her testimony that she would not have had the limited sex act with Mr. Bourdon on August 30, but for the deal arranged between Ali and her, is confirmed by the reaction demonstrated in her texts to Ali’s suggestion of a threesome to include Mr. Bourdon, and the references in her texts as to her having no interest whatsoever in any form of affectionate or hugging or sex relationship with Mr. Bourdon, even in the face of Ali’s death wish.

[669] I accept her description of her symptoms. They are confirmed to some extent in her texts including, “I must have woken up like 6 or 7 times.” It is fair for the defence to point out her apparent coherence in her texts. But she does text about her symptoms, “just tired…”, “I almost fainted that stuff is weird”, “laying here half awake, half asleep.”

[670] As I have noted, although she texted during the time that she said she was under the influence, there are significant gaps in her text messaging. Significantly, it is during those gaps that Ali sends texts. It is reasonable to infer that Mr. Bourdon (author of the Ali texts) could only text to her as Ali while she was asleep or unconscious as she described.

[671] I have considered the evidence of Ms. M.B. going out with S. afterwards. I accept that that plan developed and was not preplanned. The texts between S. and her confirm Ms. M.B.’s testimony on this, “hey, what are you up to tonight. My parents just lost it. So I’m coming to town.”

Mr. Bourdon’s and Ali’s Texts

[672] I find that the series of text messages sent by Ali offering innocent explanations for the touching that she complained of, starting with Mr. Bourdon was simply reaching for her phone, to speaking to the doctor confirming that the weed was laced, Rene attempting suicide that he was so upset causing her to believe that he “wasn’t technically responsible” is an admission by the author of those texts, Mr. Bourdon, that the touching occurred as she alleged.

[673] Ms. M.B.’s credibility and reliability is further reinforced by the manner in which the Crown conducted its examination in chief of her. She was first asked questions to which she provided the answers. Subsequent references to the texts would confirm her testimony. One example of this is when she testified that she told Mr. Bourdon not to say anything to Ali about having sex as arranged for August 30. She wanted him to pretend that they did it, but to not do it. She testified that shortly thereafter, she received a text from Ali warning her that he would know if they did not go through with the deal.

[674] Ali’s texts in this regard also influenced her not to report the incident to police. She was lead to believe that it was not Mr. Bourdon’s fault.

[675] She thought that Ali was in Michigan for the surgery. This is confirmed in the texts.

[676] Although challenged on it by the defence, she testified that she did not book the August 5th hotel room. Her testimony is confirmed by the texts from Ali.

[677] While it strains credibility that her fiancé would ask her to bring a blindfold to the very first occasion when they would meet in person and ask her to wear it when he came into the hotel room, as testified to by her, the texts confirm that he asked her to.

[678] I find that there was a power imbalance held by Mr. Bourdon over Ms. M.B.. I accept her evidence that Mr. Bourdon in person constantly, and in combination with his texts and Ali’s texts, influenced her conduct and allowed Mr. Bourdon to maintain a control over her, and to keep the deception alive. She testified, “I always had Rene to explain,” “I was always reassured by Rene…”, “My concerns would go away.”

DECISION – COUNT 10

[679] I have no hesitation in finding Ms. M.B. to be a credible and reliable witness. I fully accept her evidence as to Mr. Bourdon sexually assaulting her on August 5, 2012.

[680] I find him guilty of Count 10.

IX. COUNT 11 - SEXUAL ASSAULT, AUGUST 30, 2012

Position of the Crown

[681] The Crown submits that the deal for sex, namely, that that is how Ali would repay Mr. Bourdon for the money used for his surgery is proven in the texts, no matter how incredible the story sounds.

[682] The Crown points to the evidence that I have already summarized that confirms that Ms. M.B. had no interest whatsoever in any form of affectionate or sexual relationship with Mr. Bourdon.

[683] The Crown submits that Ms. M.B. would not have had sex with Mr. Bourdon but for the deal.

[684] The texts confirm Ms. M.B.’s testimony that Mr. Bourdon was initially reluctant, but that she persuaded him and further that Ali warned her not to pretend that they did it, after she suggested that to Mr. Bourdon.

[685] The Crown submits that these texts clearly show the combination of the texts and Mr. Bourdon, working towards the common goal.

[686] It is to be noted that this plan was conceived after Ms. M.B. thoroughly rejected Ali’s suggestion of a three some to include Mr. Bourdon.

[687] The Crown notes that Ms. M.B. described setting the limits of the sexual act. She did not embellish the amount of alcohol that she consumed in advance, saying she was under the influence, but not drunk.

[688] The Crown cited the case law for the authority that with Ms. M.B. specifically indicating at the outset as to what sexual conduct she agreed to, Mr. Bourdon could not go beyond what she consented to. He cannot test the waters, outside of the boundaries specified, without Ms. M.B.'s specific consent. The defence does not disagree with this statement of the law. The Crown also relies on s. 265(2)>(b) of the Criminal Code and R. v. Edgar, 2016 ONCA 120.

[689] The Crown points out that the evidence of Ms. M.B. is not contradicted. Furthermore, she did not embellish the evidence, agreeing that there was no force or violence and that he did not restrain her. Furthermore, she agreed that he did stop when she stopped him.

Position of the Defence

[690] The defence submits that the apprehension of imminent harm, as was found in Edgar is absent in the present case and therefore, this incident as described by Ms. M.B. does not amount to sexual assault. The defence submits that in the absence of sexualized violence, control, and confinement as was the case in Edgar, there is no sexual assault. (Edgar, para. 13).

[691] It is the submission of defence counsel that what pushed an indecent act in Edgar to sexual assault is Mr. Edgar using the victim as the object of his masturbation. I would say that that is not the reasoning of the Ontario Court of Appeal in Edgar. Their reasoning is set out in paragraph 13, 14, 15 and 16.

[692] The defence submits that because there was no terrifying sexualized atmosphere, verbal threats or forcible confinement in the present case, this does not amount to sexual assault.

[693] Defence counsel submits that because the facts in the present case do not meet the Edgar test there should be an acquittal on this count.

[694] The defence further submits that for the reasons defence advanced in respect of count 10, the court should find that Ms. M.B. is not a credible or reliable witness in regard to the alleged sexual assault on this date.

ANALYSIS - COUNT 11

[695] For the reasons that I have already given in connection with Count 10, I find that Ms. M.B. was a credible and reliable witness. In addition to those reasons, I find that her credibility and reliability find support in her testimony, that of Ms. E.C., Ms. M.B.’s texts and the texts of Mr. Bourdon and Ali. Even without the latter texts, I accept her evidence as to what occurred on August 30.

[696] In addition to the reasons that I gave under Count 10 for finding her to be a credible and reliable witness, there are additional reasons specific to Count 11.

Ms. M.B.’s Evidence

[697] She admitted that she agreed to the arrangement “that Ali requested in order to save his life”. It was not as boyfriend or girlfriend or even as friends. She wanted it done and over with as quickly as possible. She specified to Mr. Bourdon that it was to be vaginal sex only. She kept her shirt on. It was done on the floor – not in bed. She told him he could not use his hands, “he wasn't even allowed to touch me with his hands.” She told Mr. Bourdon that they were going to F-U-C-K to make it as least personal as possible. She was not looking for anything romantic, in this, or at any time, with Mr. Bourdon.

[698] The evidence is conclusive that she wanted no other affectionate or touching or sexual relationship with Mr. Bourdon at any time, even despite Ali’s death wish that she do so. The evidence is conclusive that she only agreed to this single sex act as a result of being persuaded that it was the only way to save Ali’s life.

[699] She made admissions against her interest. She admitted that she had time to think about fulfilling the deal. She drank some wine to brace herself. She did not claim to be drunk. She admitted that she decided on the details and the when, where, how. She admitted Mr. Bourdon was reluctant, but that she gave him no choice.

[700] She did not embellish what occurred that she did not consent to. She did not complain that the vaginal penetration by him was non-consensual. She admitted that he stopped after she told him to.

[701] She admitted that he used no threat, force or restraint.

Ms. E.C.’s Evidence

[702] Her testimony as to how Mr. Bourdon manipulated her into offering him sex, is striking similar to his manipulation of Ms. M.B. into offering him sex.

Ms. M.B.’s Texts

[703] The texts she sent to Mr. Bourdon confirm her evidence about the deal.

Mr. Bourdon’s and Ali’s Texts

[704] These too support her evidence about the deal made, including her testimony that she told Mr. Bourdon to pretend it occurred, and receiving a text from Ali that he would know if they did that.

[705] The texts confirm her testimony that Mr. Bourdon gave up his “freedom” to pay for Ali’s surgery, his ability to win his appeal against his wrongful conviction.

[706] The texts show Mr. Bourdon injected urgency into fulfilling the deal when he texts Ms. M.B. “I got a call from the hospital telling me that they just called the doctor because Ali agreed to take the surgery … right now.” August 30, 2012, 2:20:36 AM.

[707] I accept her testimony that he attempted to touch her vagina with his fingers. She told him to stop and he did so. It was extra contact that she did not want. She testified that she made it clear to him that she didn't want any additional sexual activity. He tried to perform oral sex on her. She stopped him and when he tried to proceed, she kneed him in the face and he stopped.

[708] Such conduct by Mr. Bourdon constitutes sexual assault on the authority of R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, and R. v. Ewanchuk 1999 711 (SCC), [1999] 1 S.C.R. 330. He must have her prior unambiguous consent before embarking on sexual activity that was not consented to and which was, in fact, specifically prohibited in advance.

[709] I reject the submission by defence counsel that a sexual assault requires circumstances of sexualized violence, control and confinement. The terrifying situation in Edgar is not the only circumstance in which a sexual assault can occur. The decision in Edgar specifically describes another situation in which a sexual assault can occur namely, “a person's act or gesture, without words, force or any physical contact can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of... offensive contact that affronts the person's sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault.” Para. 10.

[710] Mr. Bourdon's conduct falls into this definition of sexual assault and that under s. 265(1)(b). His conduct was offensive contact that affronted Ms. M.B.’s personal integrity.

DECISION – COUNT 11

[711] For these reasons, I find that the Crown has proven beyond a reasonable doubt the essential elements of the offence of sexual assault arising from the incident on August 30.

X. SUMMARY OF DECISION

[712] For these reasons, I find Mr. Bourdon guilty of all of these Counts 2, 9, 10 and 11 that were in issue.

Honourable Mr. Justice Gary W. Tranmer

Released: September 30, 2016 (delivered in writing)

CITATION: R. v. Bourdon, 2016 ONSC 5707

COURT FILE NO.: CR-14-0188-00

DATE: 2016 Sept 30

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RENE RONALD BOURDON

Accused

trial DecISION

Tranmer J.

Released: September 30, 2016 (delivered in writing)