COURT FILE NO.: 43/15 DATE: 2017 02 27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – A.R.

Counsel: R. Fetterly, for the Crown C. Hunter, for the Accused

HEARD: September 15, 20, 21, 2016, January 9, 10, 11, 12, 2017

REASONS FOR JUDGMENT

Publication of Any Information Tending to Reveal the Identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada

Woollcombe J.

Introduction

1A.R. is charged on a ten count indictment with three counts of assault, two counts of uttering a threat to cause death or bodily harm and six counts of sexual assault. The offences are all in relation to his former spouse, L.R., although the two death threat charges also relate to their baby, C.R., and one of the death threat charges also relates to J.S., L.R.’s mother.

2Each of the counts alleged relates to one particular incident. The dates of the allegations are from May 1, 2012 to August 31, 2013. The complainant disclosed some of the allegations to police well after the last incident alleged. She provided a first videotaped statement to the police in February 2014. In it, she spoke about having been assaulted and threatened. She gave a second videotaped police statement later in 2014. In this statement, she made allegations of sexual assaults.

3At trial, the Crown, Mr. Fetterly, adduced evidence from the complainant and her mother. L.R. testified over several days about the assaults, threats and sexual assaults. Her mother’s evidence confirmed some of the details about the relationship between the accused and complainant. In addition, she confirmed having witnessed one of the threats and one of the assaults.

4In addition, Mr. Fetterly tendered photographs of text messages between the complainant and accused. During the trial, it became apparent that there existed additional, undisclosed text messages between the parties that had not been produced to A.R.’s counsel. These were ultimately produced and many of them were tendered as exhibits by the defence. The text messages provide some additional context to the relationship between the accused and complainant and in some instances are said by the Crown to contain admissions by the accused of having committed the offences alleged. The defence disputes the significance of most of the accused’s apologies in the texts.

5The issue to be determined is whether the Crown has proven the essential elements of each of these offences beyond a reasonable doubt.

Relevant Factual Background

6By way of background to the offences, the accused and complainant met in 2000 while they were in high school in North York. They dated for ten years and began living together in 2009, at which point they moved into a home that they had purchased together in Orangeville. They were married on May 16, 2010. The accused was employed at the Hockley V.[…] Resort doing audiovisual work. The complainant did not work.

7L.R. testified that when she looks back, she thinks that there were red flags in her relationship with A.R. from before the time they moved to Orangeville. She said that there were physical, verbal and sexual assaults before moving to Orangeville, though these do not form part of the allegations.

8At the time of the allegations, L.R. was five foot three and a half inches tall and weighed about a hundred pounds. A.R. was five foot five inches tall and weighed more than her. She described him as stronger than her by far.

Relevant Legal Principles

9The parties agree generally about the relevant legal principles.

10The accused is presumed innocent of all of the charges. This presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts. The accused is not required to testify and I draw no inference from his decision not to do so in this case.

11I remind myself of the well-known meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is a doubt based on reason and common sense and flows logically from the evidence or absence of evidence. It is not enough for me to believe that the accused is probably or likely guilty of any particular count. However, I recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. The standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I must consider all of the evidence and be sure that the accused is guilty before I can be satisfied of his guilt beyond a reasonable doubt.

12While there are multiple counts before me, there has been no similar fact application made by the Crown. This means that each count must be considered separately and that the evidence on one count may not be used to bolster the evidence on another count.

13Finally, I remind myself that the text messages sent by the complainant to the accused may not be used by me as prior consistent statements that buttress her credibility. That is not the purpose for which they have been tendered. However, they are relevant as narrative and to rebut allegations of recent fabrication: R. v. D.F.S., 1999 ONCA 3704, [1999] O.J. No. 688 (C.A.); R. v. L.B., 1997 ONCA 3187, [1997] O.J. No. 3042 (C.A.).

Analysis

14In order to assess the issues before me, I must consider the credibility of each of the witnesses. I will then review each of the counts charged, setting out the relevant evidence, arguments of counsel and my conclusions.

Credibility

15This case turns largely on the credibility and reliability of L.R.

16It is the position of the defence that L.R.’s evidence cannot be relied upon because she was incredible and unreliable. The defence describes her evidence as having been evasive and unresponsive. It is said that she did not take responsibility for her role in the arguments between her and the accused and that she frequently injected into her evidence gratuitous negative comments about the accused. The defence submits that some of her evidence lacked an air of reality and that she was prone to exaggeration. It is argued that she tailored the text messages that she initially handed over to the police and that this shows that she is unreliable. Finally, it is argued that the timing of her disclosure to the police is suspicious.

17The Crown’s position is that the court should rely on the evidence of L.R., confirmed to some extent by that of her mother, to find the accused guilty. The Crown acknowledges that some of L.R.’s evidence was not responsive, but submits that she was not being evasive. Rather, it was clear that she had real difficulty in speaking about the sexual assault allegations and that she explained some of the reasons why. The Crown accepts that at times L.R. injected into her responses to questions comments about matters that she had not been asked about. The Crown also agrees that her mother, J.S. frequently provided unresponsive answers that were intended to reflect negatively on the accused. However, he submits that both of them provided critical details and that the evidence of each complimented and confirmed the other, leading to proof of the offences beyond a reasonable doubt.

18Numerous arguments made by the defence as to why the complainant and her mother were not credible or reliable witnesses. I will address the significant arguments advanced by counsel about credibility and reliability.

19First, much was made by the defence about the fact that L.R. did not initially turn over from her phone all of the text messages between her and A.R. There was significant cross-examination of L.R. on this issue and an adjournment of the trial so that the defence could thoroughly assess the impact of the “new texts” on its case.

20It was L.R.’s evidence that while she and the accused were struggling in their relationship, she moved the texts between them into a saved folder. She kept them because she thought that they would help him later when he sought the assistance of a counsellor. She testified that she kept the texts that she thought were relevant, although she always acknowledged that there might be texts that were missing. These texts were photographed by her and provided to the police well after she made her allegations in February 2014.

21As I have indicated, it became clear during the trial that there were, in fact, many additional text messages between them on her phone that had never been provided to the police. Ultimately, L.R’s phone was examined and numerous further texts were produced to the defence. Many were filed as exhibits.

22The complainant testified that she made an error in thinking she had produced all of the texts to the police initially.

23I am not persuaded that there is anything nefarious in L.R. not having produced all of the text messages initially. Some context is necessary. There are hundreds of communications between these two. Sometimes there were more than a dozen messages sent in a single day. In my view, it would be easy in these circumstances to lose track of them, to fail to save all of them, and not to know, years later, whether all of them had been saved or not.

24Furthermore, having compared what was initially produced with what was subsequently produced, to the extent that I am able to do so, I cannot conclude that there was any sort of intention to mis-lead or deceive on the part of L.R. Frankly, both sets of texts reflect fighting between the two of them. Neither one of them appears in a particularly favourable light in any of the texts. I cannot conclude on the basis of what was, and was not, initially produced that there was anything calculated about L.R.’s manner of providing the texts or in her evidence about them.

25I also do not accept the defence position that the complaint changed her evidence inappropriately to cover herself when she was shown the new texts. My understanding of her evidence was that when she initially testified, she thought that she was doing so on the basis of all of the texts and communications being before the court, although she often said that she thought that there might have been additional communications between them. When confronted with additional information contained in texts, she appeared to me to accept that the new texts refreshed her memory as to what the particular context of their arguments had been. The complainant’s evidence about the fight that she and the accused had about the Lysol being used near the baby’s bottles is a good example of an instance in which I do not accept the defence position that her evidence upon seeing the new texts suggests that her earlier evidence was deliberately false or mis-leading.

26I also do not accept the defence position that an adverse inference should be drawn against the complainant because she testified that she kept the texts to assist with the accused’s counselling, and yet she never shared them with a counsellor or made any efforts to do so when the opportunity was said to present itself. The complainant was asked about these issues and I accept her explanation for not sharing the texts. She saw a crises counsellor with the accused once. She knew that the accused was worried about what she said to the counsellor. She was never alone with the counsellor. She said, and I accept, that this was not a good opportunity to share the texts and she so did not do so. I find that her decision not to track down the counsellor after this meeting to share the texts does not undermine her evidence as to why she kept them.

27Similarly, it is not surprising to me that when the complainant met with the accused’s family on January 7, 2014, she did not share the texts with them in order to try to ensure that the accused received counselling. This was a very difficult and stressful family meeting. While the complainant could have shown the accused’s family the text exchanges that had taken place to demonstrate that he needed counselling and was having mental health struggles, I am not prepared to conclude that her decision not to do so undermines her evidence as to why she kept the texts in the first place.

28In terms of exaggeration, I do not agree with the defence position that the reliability of the complainant’s evidence is undermined because she exaggerated her fearfulness about the accused. The defence refers to the December 2013 neck stroking incident as support for its argument.

29The complainant described an incident in December 2013 in which she and the accused were talking in their bedroom. They were not arguing and he was not angry. She said that the accused stroked her neck. He said things like that he loved her. She testified that he spoke to her in a tone that she found sarcastic and that she believed that he meant the opposite. She felt he was saying, effectively, that he could strangle her if he wanted to do so. While it was suggested to her that there was no threat and no reason to perceive this as a threat, she disagreed.

30This incident needs to be placed in context. By that point, according to the complainant, the accused had squeezed her neck to the point that she could not breathe (in May or June 2012) and had put his hand around her neck and squeezed her as he raped her (in August 2013). Viewed in that context, I do not accept that her evidence revealed a tendency to exaggerate and to interpret innocuous conduct as threatening. I see a legitimate reason for her to have been fearful in this situation.

31I accept that the complainant often appeared flat, was frequently unresponsive, often had trouble answering questions and needed many breaks to compose herself sufficiently to answer questions, both in-chief and under cross-examination. However, when she was being asked about the alleged sexual assaults, she testified that she found it really hard to talk about them. She described the experience as “a visual thing” that was “like a movie” playing over in her head. Her emotional responses to being asked about the sexual assaults appeared to me to be genuine and not in any way feigned or exaggerated.

32I also draw no negative inference against the complainant for the timing of her allegations. The suggestion made by the defence is that the accused decided to leave her in January 2014 and that it was only when she received his response to her family law application in February 2014, and learned that he wanted a divorce, that she decided to go to the police. I take it that the suggestion is that her allegations are somehow seeking retribution against him. While not made directly, implicit in counsel’s questioning about the “suspicious timing” of the reporting, is an allegation of recent fabrication.

33I do not accept this position. It appears to be true that A.R. decided that the relationship was over before L.R. had accepted this. Indeed, it appears as though she continued to want to find a way to repair the relationship in early 2014. However, there are several reasons why I cannot conclude that she made false allegations to the police as some sort of retribution.

34First, it is significant that the text messages, which existed before she went to the police, contain statements by the complainant alleging many of the same things that she reported to the police. They allege physical assaults, including the mule kick on the stairs, choking, and threats. These texts rebut any allegation of fabrication in response to the accused seeking a divorce.

35Second, it seems to me that if the complainant had really wanted to retaliate against the accused, she would have proceeded quite differently. She could have provided the text messages, which confirmed her story and included admissions on the part of the accused, to the police in February 2014. She did not do so. She also could have made the much more serious allegations of sexual abuse in February 2014. She did not do so. I draw no inference from the timing of the complainant’s allegations to the police.

36The defence further submits that the complainant’s evidence about the sexual assaults should not be accepted because, unlike with respect to the physical assaults and threats, they are never mentioned in the text messages.

37The Crown acknowledges, correctly, that the sexual assaults are never mentioned in the text messages. L.R. testified that she never texted about them because she was afraid that the accused would show them to other people and that they would be used against her. This did not make much sense to me. I accept the defence position that this explanation was troubling.

38That said, I accept that the complainant is a private person and that speaking about the sexual assaults more directly was and it very difficult for her. She testified that in her texts, when she referred to the physical and emotional assaults, in her mind she was incorporating the sexual assaults. I accept this explanation as reasonable.

39The defence also points to two incidents that it is submitted demonstrate bias on the complainant’s part against the accused. First, there was an incident in the summer of 2014 when L.R. showed A.R.’s father a photograph of him consuming alcohol taken off Facebook and suggested that he was in breach of his bail. She also called the Crown’s office about his bail restrictions. It turns out that there was no such bail condition. Second, L.R. said that she saw a bruise on her daughter’s leg after A.R.’s first supervised access with her, and then took her daughter to both the doctor and the police. Ultimately, she agreed that the bruise could not be from the visit.

40I accept there are competing explanations for L.R.’s conduct in these two incidents. It certainly appears that she wanted to try to ensure that A.R. got into trouble for the alcohol consumption. In relation to the bruise, she seemed to me too ready to see A.R. as having been the cause, and again appears to have been prepared to pursue an allegation against him, at least initially. I am not satisfied, however, that these two incidents reveal such a bias on the part of L.R. against A.R. that I cannot accept her evidence. They do demonstrate the need to be careful in assessing her evidence.

41The defence also suggests that the complainant’s bias and unreliability may be seen from the fact that she would not acknowledge the role that she played in their arguments, something said to be apparent from their text exchanges.

42I agree with defence counsel that L.R.’s perspective about the fighting between her and the accused seems to be that everything was his fault and that she was blameless. I agree that in the text messages she berated the accused, often repeating the same issues over and over. In her evidence, she did not seem to take any responsibility for the fights.

43I take from this that the complainant lacked insight into the extent of the marital issues that they were having and that her perspectives were not always, when viewed objectively, fair or correct. However, this does not lead me to reject her evidence. Rather, it reinforces for me the need to approach her evidence with particular care.

44Finally, the defence submits that the complainant’s evidence, when compared with that of the accused’s cousin F.D. (who testified for the defence) in relation to the events of January 7, 2014, reveals that the complainant is not credible and exaggerates.

45Some context is needed to assess this argument.

46It was L.R.’s evidence that A.R. stayed at their home over Christmas 2013. When they went to visit a friend on January 2, 2014, L.R. said that A.R. threatened to shoot her mother in front of other people. This allegation is not the subject of a charge. After this, L.R. said that she stayed with her parents for a few days. On January 5, 2014, they drove her home.

47L.R. said that on arrival at home, she noticed that certain things were missing including paintings that A.R. had done and “collectibles”. She asked him about them and he did not want to answer. She described A.R. as agitated and angry. He wanted to leave and got a bag of items and put them into his car. He could not leave because her parents were blocking his car in the driveway.

48J.S. also testified about this. It was her evidence that when they returned to the home, there were multiple air fresheners that had been sprayed and she believed that A.R. looked and sounded stoned on weed. She told him that she would not move her car because she did not want him driving.

49At some point, A.R. called his mother, who telephoned the police. They attended and spoke with both A.R. and L.R. separately. A.R. ended up leaving that night. This is the date of their separation.

50Two days later, L.R. went to A.R.’s parents’ home, where he was staying. A meeting took place that included L.R., A.R., his parents and his cousin F.D.

51According to L.R., they discussed the things that were going on and the fact that she wanted A.R. to get help. She said that everyone ganged up on her. She said that she told them about the violence and about the mental health issues. She said that she asked A.R.’s cousin if he would pay for counselling for A.R. as A.R. had previously told her that he would. F.D. denied that he had ever committed to this.

52L.R. said that she left pretty late. She had asked her parents to meet her and pick her up. As she got ready to leave, she said that A.R. and his cousin started putting on their shoes and coats. She told them not to come with her. She walked to the nearby school and said that they followed her. She told them to go away and started to run. At the school, she saw a janitor and then got into her parents’ car.

53L.R. said that the text messages between them on January 7 confirm her evidence. In the text to her, A.R. said that he walked after to make sure she was safe. She responded that she had told him not to follow her and that his father knew that she felt threatened. He responds that he is sorry she felt that way.

54F.D. also testified about the meeting at the home and about following L.R. after. He testified that he is relatively close to A.R. He had never observed any mental health issues and said he had never discussed paying for counselling for A.R. He did not see L.R. and A.R. much over this time period and described them as “pretty private”. He had no knowledge of A.R.’s mental state at the time. He knew nothing about A.R. thinking the world was ending, talking about aliens or about his marriage.

55F.D. explained that he went to the home of his aunt and uncle because his mother called him and told him that L.R. would not leave. He understood that she had been there for two or three hours. Under cross-examination, he said that he was not sure she had been asked to leave. When he arrived, he said that his aunt and uncle, A.R. and L.R. were sitting at the kitchen table. No one filled him in on what the conversation had been about. L.R. was sobbing and repeating over and over that she wanted A.R. to come home. He said that she never said she wanted counselling for A.R. He said that he let her talk for about an hour and then told her it was best that they separate. All she said over the hour was that she loved A.R. and wanted him back – which he thought she had said a thousand times. He said that she did not ask him to assist with counselling for A.R. After two hours, he told her she should leave.

56According to F.D., he offered to drive L.R. home and she declined his offer. He did not offer to walk with her. He did not think she had a lift home and described her as looking suicidal. He and A.R. followed her down the street towards the school, where she was headed. He did not see a janitor there. He saw her get into a vehicle.

57F.D. made no notes of the evening and agreed that he was testifying from his memory. In my view, while no doubt well-intentioned, F.D. was not a very reliable witness. He had no context or background of the situation from which to assess the conversation that night. I cannot accept his evidence about the scope of the conversation at his aunt and uncle’s home. It is inconceivable to me, given what was going on, that L.R. would not have discussed the issue of A.R.’s mental health issues, his violence and him having counselling. While F. D. is likely correct that L.R. wanted A.R. to return, there was much more to the conversation that evening that he appears to have forgotten or been unaware of.

58But, more importantly, F.D.’s evidence confirmed L.R.’s evidence that A.R. and he followed her that night. She testified that she did not want them to follow her and was scared by them. Given the tense conversation at the home, I accept that she did not want them pursuing her. I accept that she was fearful of the two of them pursuing her. While A.R. and F.D. may have perceived that they were offering her a kindness, her perception was, in my view legitimately, different. I cannot conclude that this incident is an example of L.R. exaggerating or being unreliable.

59In relation to the complainant’s mother, I agree with the defence that there are aspects of her evidence that were troubling. She has obvious and pervasive animus towards the accused. She often used the questions she was asked to gratuitously make negative comments about the accused. This tendency detracts from her overall credibility.

60However, I found that in a number of important respects, the evidence of J.S. in relation to the threat that she heard and the assault that she witnessed the accused commit in relation to L.R. was reliable. Her evidence was remarkably similar to that of her daughter, but not identical. Each recalled different details, details that complimented and added to the evidence of the other, thereby providing some confirmation.

Assessment of the various counts

61With those comments about credibility generally in mind, I turn now to the specific allegation made in each count in the indictment in chronological order.

Count 5: Sexual assault on L.R. between July 1 and 31, 2011

62L.R. described the first sexual offence as having occurred in July 2011 at their home. A.R. called her into the bedroom and she went in and sat on the edge of the bed. He was standing at the foot of the bed. She could not recall what he was wearing other than that he had been dressed. They talked, although she could not really recall what it was about other than that it had not been out of the ordinary. She was sitting on the edge of the bed and he was standing.

63L.R. said that A.R. pushed her down onto the bed and flipped her so that she was face down. Under cross-examination, she said he had pushed with both hands. He grabbed her by the hair and pushed her face down. She felt his knee or elbow on her back. He put a condom on. She did not know where it had come from. She described smelling the latex and hearing the sound of it before he put it on. The accused then took her bottoms off with one hand and was positioned behind her. He never let go of her hair. He penetrated her vaginally, continuing until he ejaculated.

64The complainant said that while this was going on, the accused was calling her names including “bitch, “whore” and “slut”. She did not know for certain how long this incident lasted, explaining that she had not been conscious of time, and that it probably felt longer than it was.

65L.R. said that after the accused was done, she slid down off the bed and said, “You raped me, you raped me”. He stood looking down at her and said that if she kept saying that, he would kill himself. She stopped saying it and he left the room.

66After this, the complainant said that she was in the kitchen and that A.R. came in and made what she described as a “fake pout face” to her. She said that she was still upset but that she knew he wanted her to smile so she did. He winked and smiled and left the room.

67L.R. testified that she was stunned by this incident, but not shocked. They did not discuss the incident after. However, when she later talked with him about his physical abuse, she included in her mind this sexual abuse.

68It is the defence position that the complainant’s recollection of detail was so absent as to make her version of events unreliable. She did not remember what day of the week it was, why she thought it had been July, what the time of day was, what the accused was wearing, what sort of pants she wore and whether the accused dressed or not before leaving the room.

69I agree with the Crown that the complainant’s evidence about this incident establishes beyond a reasonable doubt that the accused sexually assaulted her.

70I do not find it surprising that the complainant does not recall details like what day of the week it was, what time it was or what the accused was wearing. It is of significance that she recalls details that make sense – the sound and smell of the condom, the names she was called, the manipulative threat of the accused after, the “pouty” face and the accused’s obvious attempt to make her smile and move on. I found the complainant’s description of what happened to be appropriately detailed. I found that she was largely consistent about the details of this incident under cross-examination.

71In my view, notwithstanding the care that must be taken in accepting the complainant’s evidence as set out above, I find that her evidence about this incident is credible. I find the accused guilty of sexual assault in relation to this incident.

Count 1: Assault on L.R. between May 1 and June 30, 2012

72The first physical incident described by the complainant occurred in their home in 2012. This incident is alleged to have occurred before the birth of their daughter on November 9, 2012.

73L.R. testified that she was a few months pregnant and that she and her husband were in the basement discussing his drug use. She said that he had been using a lot of marijuana and that they were arguing about her allegation that he was using drugs more recently. She was not certain if he was stoned.

74L.R. testified that A.R reached his arms out and put his hands around her neck and squeezed. He applied enough pressure that she said she could not breathe. He then let go and she had to catch her breath and then went to another room. L.R. testified that she did not consent to being touched in this way. She neither reported to police nor sought any medical treatment. She did not think she had suffered any injuries.

75There are text messages between L.R. and A.R. that the Crown submits are referable to this incident. In a text sent by L.R. on April 26, 2013 at 8:02, well after the time of the allegations, she sent a text message saying:

U r trying to twist things and trying to justify ur actions and behaviour. Tell me something…What did I do when I was pregnant and u strangled me and left marks on me? What did I do then huh? U gonna try to blame me for that too?

76When she was asked about this text under cross-examination, she testified that if she referred to bruises in her text that meant that there had been a mark on her neck. She explained that when she spoke to the police, and when she testified in-chief, she had not recalled, specifically, that there had been a mark left during this incident but that the text reminded her that there had been a mark.

77The defence submits that L.R.’s evidence about this incident was sparse and that there were many things she could not recall, including the date and specifics of the conversation immediately before the alleged strangling. Counsel also pointed out that she could not initially recall if there had been bruising. Further, counsel points to the gratuitous comments made by the complainant about the accused’s drug issues at the time. Finally, the defence says that there is no proof that the accused received or acknowledged the complainant’s text about this incident.

78Having carefully reviewed the transcript of the complainant’s evidence about this incident, and bearing in mind my general conclusion respecting her credibility, I accept her evidence about this incident.

79I accept that there are details that the complainant does not recall. However, in my view, they are minor and not the sort of things one would expect her to remember. I am not troubled by the fact that the complainant said under examination-in-chief that there were no marks left but then adopted, under cross-examination, that there had been marks. If anything, her evidence reveals a lack of exaggeration in that she was not prepared to say that there were marks until her memory was refreshed by her more contemporaneous text message.

80Further, while the complainant did comment on the accused’s drug issues, she did so in direct response to a question about what was happening at the time. I do not view her evidence as embellished or exaggerated or intended to improperly impugn the accused.

81I accept that the complainant’s evidence proves beyond a reasonable doubt that she was assaulted on this occasion in the basement in the manner she described.

Count 6: Sexual assault on L.R. between July 1 and 31, 2012

82L.R. described a second sexual assault that she said occurred in July 2012, about a year after the first sexual assault. They were in the bedroom of their home, standing beside the bed, on the accused’s side of the bed talking. She said that A.R. then pushed her towards the bed and sort of spun her so that she was face down on the bed. She did not recall what he was saying. He pulled her bottoms down and then tried to insert his penis in her vaginal area.

83L.R. explained that she was pregnant at the time and that the accused was only partially successful at inserting himself in her vagina. She slid her stomach off the bed. She told him to stop. She said that A.R. was angry and grabbed her by the hair and started smashing her head on the mattress over and over. She said that it hurt but that she did not have any injuries.

84The accused left the room. L.R. then got up and went down to the kitchen where he was standing by the dishwasher. She asked him what his problem was. There were a stack of dishes on the counter that needed to be loaded into the dishwasher. He began smashing them on the counter and throwing them at her. As pieces of dishes were thrown at her, she tried to shield her stomach.

85She then left the room and locked herself into the bathroom. She described herself as crying and as having difficulty breathing. She said that A.R. was pounding on the door yelling and that she told him to leave her alone.

86Counsel for the accused again submits that the complainant’s evidence is generically similar to the sexual assault that she described in 2012. I do not agree. There are a number of respects in which the incident is different: the complainant was pregnant, the complainant slipped away from him and there was the dish-smashing incident after rather than the pouty face and wink.

87Counsel for the accused also suggests that L.R.’s evidence was evasive. Having heard her testify and now had the opportunity to review the transcript, I do not agree. I found her evidence to be responsive, compelling and credible.

88I am satisfied beyond a reasonable doubt that this sexual assault took place in the manner described by the complainant and find the accused guilty in relation to this count.

Count 2 Utter threat to L.R., C.R. and J.S. between December 1, 2012 and January 31, 2013

89The next non-sexual incident was in December 2012 or January 2013. The accused and complainant’s daughter, C.R. was born in […] 2012. Following her birth, the complainant’s mother, who lived in Toronto, spent considerably more time at the couple’s home in Orangeville.

90This allegation needs to be put in the context of the accused’s very unusual behaviour at the time, as described by both the complainant and her mother.

91It was the complainant’s evidence that in December 2012, the accused thought that the world was going to end. She said that he had an obsession with aliens and reptilian creatures and “all that kind of stuff”. She testified that he also started telling her about hearing voices and referred to himself as having a “good A.” and a “bad A.”, which she took as indicative of some sort of a split personality and caused her to believe that he had a major mental health issue. She wanted him to seek professional assistance.

92L.R.’s mother, J.S., confirmed this to some extent. She said that she observed the accused talking about what she described as “anonuki” aliens and that he heard voices and had a demon inside him. She also testified that he spoke about the world ending.

93L.R. said that this incident took place when she was in her home, along with her mother, baby daughter and A.R. She was back and forth between the kitchen and living room and her mother was in the kitchen.

94While she was talking with A.R., he told her that he wanted to kill her and her daughter and her mother. She believed that her mother heard this as her mother said something like, “what”.

95L.R. testified that the threat made her feel scared and that after this, there were a number of text messages between her and A.R.

96The complainant’s mother. J.S. also testified about this incident. It was her evidence that one day while she was sterilizing the baby’s bottles in the kitchen, her daughter went into the living room where she had a conversation with the accused. J.S. heard the accused say, “I want to kill you, C.R. and J.S.”. She testified that L.R. responded, “What did you say?” and he repeated the threat. This ended with the accused stomping off to the bedroom.

97J.S. said that this made her nervous because the accused seemed to be acting strangely and erratically.

98In addition to the evidence of L.R. and her mother, I have been provided with copies of text messages between the parties in the period between January 30 and February 2, 2013.

99On February 1, 2013, text messages were exchanged between L.R. and the accused including the following:

L.R. 1:20 p.m.: It really hurts me feelings!!! I cant even ask u shit without u treating me like shit Accused 1:21 p.m. Ok ok ok I am sorry. I am sorry. I am a jerkface!!!! Accused: 1:41p.m. Once again I am a jerkface. I am sorry my love!!!!

100There are then messages between them from early the next morning:

L.R.: 2:57 a.m. Even though u hurt me physically and emotionally and mentally I still worry about u. Have the courtesy to answer me please Accused: 2:58 a.m.: I am at the resort sleeping under a table on some drape L.R.: 3:00 a.m. Are you staying there all night???? Accused: 3:01 a.m.: Yeah. For everyone’s sake tonight. L.R.: 3:02 a.m. Honest u r staying there all night??? Accused: 3:06 a.m.: I would rather just sleep on the floor here and reflect on what I am and what I have said. Really let it sink in .

101L.R. testified that she took this to be an acknowledgement by A.R. of what he had done to her. L.R. testified that when she referred to A.R. hurting her “physically, emotionally and mentally”, this encompassed everything he was doing to her including sexually.

102The texts continued with the following texts from the accused:

Accused: 3:13 a.m.: Just what is said, peoples actions, my thoughts. I am snapping… Accused: 3:14 I want to see everyone live long happy lives. I really don’t care about myself anymore. L.R: 3:15 a.m. I don’t understand Accused: 3:15 a.m. I have lost all hope. That is it, I have lost all hope.

103L.R. testified that she understood from these messages that A.R. was “losing it”. She thought he was suicidal. She was cross-examined as to why she didn’t call the police to intervene and explained that she did not even think about it and that A.R. wanted to limit what she said about him as he feared that he would be locked up.

104In the texts, A.R. went on to describe himself as “the cancer”, which she took to be an acknowledgement of the problem on his part. He said that he would tell everyone about “the real me”, which L.R. took to mean that he would tell his family that there were things going on. She did not think his family was aware of his issues at that time.

105In a later text, A.R. told L.R. that “I am sick”. She testified that she knew that and that she was trying to tell him and that she wanted him to get help. She specifically told him that mental illness is not a joke and that he needed help. L.R. testified that A.R. did agree to get help. In terms of help, L.R. said that originally, A.R. went to a walk-in clinic. He later went to see a crisis counselor at the hospital.

106Later in the same night, the texts continued:

Accused: 3:48 a.m.: I am going to sleep. Accused: 3:51 a.m..: Sleep. I am going to sleep here under this table. Ok L.R.: 3:56 a.m.: I don’t even know how u can sleep after what u say and do Accused: 3:58 a.m.: I just want you to know before I close my eyes. I really truly hate who I am, I hate what I become and say. I am not A.. It is very scary being alone in my head right now because I a [sic] not possessed. I feel the pain that I caused to you. Your mom I cannot say the same thing about. I will not be speaking to her if and when I do so her. I hate myself L., I fucking hate myself, I deserve nothing but all the pain that I cause to everyone.

107In one of the texts that followed, A.R. said, “I need to be saved. I hope that I can be saved. I just cant bear to live with this other side. I want to kill him. It is the only way.” L.R. testified that he had talked about good A. and bad A. and that she thought this was a reference to the demon within him.

108There followed some discussion between them in which L.R. urged the accused to get help for what she described to him as his mental illness. He asked if she wanted him to come home and she said that he needed to promise to get help and to take “meds”. L.R. testified that A.R. was prescribed medication twice but that he had not wanted to take it and had not filled the prescriptions.

109She said that when he came home he needed to be able to “discuss normally” and that he could not pretend that nothing happened. He said that he planned to come home the following day at 6: p.m.. The following then took place:

L.R.: 4:19 a.m.: A. u said really bad stuff to us both and threatened us both u r at fault not her u cant b that way Accused: 4:20 a.m.: Yeah. L.R.: 4:21 a.m.: Yeah what?? Accused: 4:22 a.m.: I am not coming home then. Goodnight. I will say I love you and C.R. even I know that you think that there is no love in me. There is. There is so much. L.R.: 4:22 a.m.: I wish I could see and believe that Accused: 4:23 a.m. I know I know its there in this side of me. Not that other person. How can it be. Fucking evil demon L.R.: 4:24 a.m.: U told me you don’t for either of us and that u don’t want her or love her either and that u want to kill us all!!! Accused: 4:26 a.m. Not C.R.. I never said C.R. but that was evil to say and I am can say nothing but that was evil. Not me saying those things.

110L.R. believed that this was A.R.’s acknowledgment of having made threats. She texted him that he said that he did not love C.R. and that he wanted to kill both of them. His response was “I cant remember that at all I cant at all. My god please believe me. I AM SO SORRY”.

111L.R. responded that A.R. could not continue to abuse her physically and mentally and emotionally and that she could not let him continue to threaten her. She expressed fear that he was going to hurt her and C.R. and made clear that it was her view that he had to stop using weed. The next morning, A.R. texted that he was sorry, loved everyone and would go to the doctor. L.R. understood from his texts that he had agreed to go to see a doctor.

112The defence concedes that the accused should be found guilty of this threat. The basis for the concession, as I understand counsel’s position, is that there is confirmation in the texts.

113Counsel comments, at the same time, that there was exaggeration on the part of both the complainant and her mother because both testified that the threat terrified them but they appear to have done nothing as a result. Counsel says that if they were really terrified, they would have called the police or J.S. could have suggested that L.R. leave.

114While I understand why counsel would suggest that it would have made sense for L.R. or her mother to have called the police, I am mindful of the evidence that J.S. gave about this under cross-examination. She said that L.R. would not have wanted her to do so. This is certainly consistent with the reaction that L.R. had to her mother’s suggestion that she was going to call the police on January 7, 2014. J.S. also testified that L.R. was a “grown woman” and that she could make her own decisions. As surprising as that reaction to the accused may be, I am not persuaded that J.S. was embellishing her fears in respect of the accused.

115I am satisfied beyond a reasonable doubt on the basis of the evidence the accused should be found guilty of uttering a death threat in relation to L.R., C.R. and J.S.

Count 7: Sexual assault on L.R. between February 1 and March 31, 2013

116L.R. described a sexual assault that she said took place in March 2013. She was in the kitchen with the baby. A.R. asked her to go to the kitchen. She put the baby in the playpen and went to the kitchen. A.R. was there with a chair pulled out from the table. His bottoms were off and he was wearing a condom.

117L.R. described how A.R. pushed her down onto the chair so that one knee was on the chair. He was behind her. He grabbed her by the hair and pushed her head down. He took her bottoms off and began to have sexual intercourse with her. During this he called her names like “bitch”, “slut” and “whore.” She told him to stop and that he was hurting her. She said that he was being very rough and that she was still tender from C.R.’s difficult birth and her subsequent stitches. She confirmed under cross-examination that this was their first act of sexual intercourse since the baby’s birth in November.

118L.R. said that A.R. was slapping her “extremely hard” with his hand, mostly on her bottom. Throughout this she told him to stop, that he was hurting her and that she needed to go because C.R. was crying. He did not stop and ejaculated. When he was finished, he said “that was great” and threw her clothes at her. She put them on and went to the baby.

119They did not discuss this incident after.

120It is the defence position that there are too many details that L.R. could not provide for her evidence to be credible. Again, in my view, the details that the complainant could not provide, such as the actual date, time of day, where the accused was before and what he was wearing are not the sorts of details that the complainant would be expected to recall about an incident that took place four years ago. There are important details that she does recall: that this was their first intercourse since the baby, that the accused was slapping her and calling her names and that the baby was crying.

121I accept her evidence about what happened in the kitchen. In my view, the evidence establishes beyond a reasonable doubt that this sexual assault occurred.

Count 8: Sexual assault on L.R. between March 1 and 31, 2013

122The next sexual assault described by L.R. occurred in March 2013. She said that she was in the kitchen facing the stove with the burner on. A.R. pushed her over and pulled down her bottoms. He started to have sexual intercourse with her and she told him to stop, asked what he was doing and told him that the burner was hot. He continued. When asked under cross-examination what he was doing with his hands, she was able to recall that he had been grabbing her and feeling her body all over.

123The only thing she could think of to say was, “do you want to get me pregnant? This caused A.R., who was not using any protection, to stop. He said “fuck” and it was over.

124L.R. testified that she did not consent to this.

125Again, the defence asserts that there are too many details absent for this evidence to be reliable. Counsel also submits that the complainant had to be asked three times whether the accused was grabbing her arms and had to be asked eight times if she was angry. I take the position of the defence to be that the complainant was being evasive because she was not being truthful.

126It is important to note that each of the sexual assaults described by the complainant have important distinguishing features and details that the complainant recalls. This one is the incident in which she thinks she was cooking as the stove was on and was hit. It is also the incident in which the accused was not wearing a condom and so she was concerned about the possibility of becoming pregnant again.

127I listened and watched carefully when L.R. testified. In addition, I have carefully reviewed the transcript of the complainant’s cross-examination about this incident. I agree that the complainant’s answer to whether she was angry has elements of being evasive in that she repeatedly said that she was upset, rather than answering whether she was angry. She tried to explain that she understood her feelings to be different from anger and more upset. Having watched and heard her, however, I am not persuaded that she was being anything other than truthful, although perhaps not as direct as she might have been.

128I accept the complainant’s version of events about this sexual assault and find that the evidence establishes the accused’s guilt on this count beyond a reasonable doubt.

Count 3: Assault on L.R. between April 1 and 30, 2013

129L.R. described the next non-sexual incident as occurring in April 2013. The text messages suggest that this incident took place on April 11, 2013.

130L.R. testified that A.R. had come home and went downstairs. She went down to see what was going on. When she went into the basement bathroom, he was on the toilet fully clothed and appeared to be asleep. She asked him what was going on and he became angry. She said that he shoved her as he left the bathroom and went upstairs.

131L.R. testified that she followed the accused upstairs, asking him what was going on. She testified that she thought he was “possibly high”. As she pursued him up the stairs, he kicked backwards in what she referred to as a “mule-kick”. He hit her in the stomach with his right leg. She stumbled and fell.

132L.R. described the kick as extremely painful, explaining that it landed on her right side where her gallbladder is located. She had learned the week before that she had a gall stone. A.R. was aware of this too as he had gone with her to the hospital.

133L.R. said that when she was kicked, her mother was standing at the top of the stairs with her baby. Her mother asked if she was ok, and asked why A.R. had done this. He responded, “I don’t care” over and over.

134J.S. provided very similar evidence to that of L.R. about this incident. She described having been in the kitchen when the accused came home. L.R. was upstairs with the baby. The accused went straight to the basement. After about an hour, J.S. asked L.R. to check on the accused. L.R. left the baby with her and went downstairs, into the bathroom and closed the door. J.S. heard her ask if he was ok, but did not hear a response.

135J.S. said that all of a sudden, the bathroom door flew open and the accused came up the stairs. L.R. was following him saying, “please, please please”. J.S. was standing at the top of the stairs. She saw the accused pull his leg up towards his chest and kick back hard towards L.R. He knocked her back down the stairs.

136J.S. was asked whether this could have been accidental and was clear that from her perspective it was not. She described the accused as calm and serene and said that he had no look of remorse and appeared to have a look of satisfaction on his face.

137J.S. said that she was terrified and wondered if L.R. had broken her neck as she was at the bottom of the stairs. J.S. asked her if she wanted an ambulance and asked if she was ok. J.S. turned to the accused and told him to check if L.R. was alright. She said that he sat there with a calmness and sereneness and said “I don’t care”. J.S testified that she was shocked and called him “worthless” and said he was not a man. He then “shot upstairs”.

138L.R. testified that after she got up, she went upstairs. A.R. was at the front door of the house. He grabbed the sides of both of her arms and threw her on the floor. She described it as forceful and said that she fell on her shoulder and back. A.R. then left the home and was gone for some time.

139According to J.S., after A.R. went upstairs, she went to the living room with the baby. The accused then came down to the main floor. By that point L.R. was also on the main floor at the front door. The accused’s back was to the front door and L.R. was begging him “please, please, please”. J.S. watched as A.R. picked L.R. up and grabbed her by the arm and threw her down on the ground.

140L.R. testified that after A.R. left, her mother wanted to call the police but she begged her not to do so. J.S. confirmed this. She told her daughter that if she could not call the police, she would call A.R.’s mother. She did so.

141After this incident, the complainant and her mother discussed the fact that A.R. had knives and weapons. L.R. said that they were under the bed and in the closet. She asked her mother to take them because she did not want them in their home. While A.R. had never used any of these weapons against her, she testified that she was concerned because A.R. had pointed them out to her.

142J.S. testified that while she told her daughter that she was giving the weapons to a friend to store, she took them to her cottage.

143The accused and L.R. separated after this incident and lived apart until July, 2013. However, they continued to communicate through text messages, spoke on the phone and met together outside the home.

144Texts between L.R. and A.R. from April 10 to 18, 2013 have been filed.

145Initially under cross-examination. L.R. testified that she did not recall what happened earlier in the day of this incident. There is a text from A.R. to her at 4:58 in which he says, “I am very sorry”. This was prior to the assault on the stairs. She could not recall what it was in relation to.

146Under cross-examination, L.R. said that the accused had been spraying cleaner and that it got onto the nipples of the baby’s bottles. She agreed that it was possible that she called the accused a “dumb-ass”. Initially, she could not recall when this had happened. Ultimately, she appeared to agree that it was earlier in the day on April 11. She denied that she left out from what she initially provided to the police all of the texts from earlier that day, texts said by the defence to paint her in an unflattering light.

147The texts that L.R. says are referable to the kick begin later that evening. In a text from L.R. to A.R. on April 11, 2013 at 9:53 p.m., she tells A.R. that, “U hurt my shoulder arm hand back and my stomach ribs and boob really bad, u almost knocked me down the stairs. There is no trust…” She sent a further text about him hurting her at 11:30 p.m. At 6:41 a.m. on April 12, 2013, he responded:

L.R. I am really sorry for hurting you - I am very sorry. Believe me I am!!! My mom heard from your mom that you were not feeling or sick so just to let you know that I have your health card so my parents will drop it off at your dads house this morning. I am sorry once again.

148She responded to him with a lengthy text. At 10:26 a.m., he again said that he was sorry. There are numerous messages between them, including one in which L.R. told the accused that she was scared for her safety and the safety of her baby and asked whether he would kick her again. The accused responded that L.R. had punched him in the head and called her horrible names for spilling Lysol while he was cleaning and that she was verbally abusive to him. She responded immediately and denied having ever hit him.

149Text messages between L.R. and A.R. from the period between April 23 and 26, 2013 were also filed. At one point, L.R.’s comments include, “And im trying to give u another chance even after u kicked me, all the physical emotional mental abuse…” She testified that this was a reference to the kicking on the stairs incident.

150Texts between them in the period between May 5 and 12, 2013 have been filed.

151In a text dated May 12, 2013 at 9:11 p.m. from L.R., she refers to the fact that when A.R. acts like a “crazy man like today yelling and screaming”, she does not have hope. She encourages him to talk calmly about their issues. She testified that it seemed likely that they had met that day. He apologized to her at 9:16 p.m., and she responded that she did not want to be afraid to be alone with him.

152Later, L.R. asked him whether he enjoyed hurting her and making her hurt. She testified that she did this because he was not showing her empathy. A.R. responded, “I am in hell. I am losing all. I am sorry L.. I am sorry for every shit fibre of what makes me me.” He asked her to pray for him.

153There are also text messaged between them in the period between May 19 and 21, 2013. Again L.R. tells him that hurting her and “doing bad stuff” is not helping and she asks what happened to him being nice. He responds he is sorry for saying certain things.

154It is the position of the defence that because they are both prone to exaggerate and because both are lacking in credibility, the evidence of the complainant and her mother about the incident on the stairs does not prove that the accused assaulted L.R. The defence agrees that there are references to L.R. on the stairs in the text messages, but said that there is no express admission by him of having hurt L.R. in the manner alleged.

155I am satisfied that the evidence of J.S. confirms the evidence of L.R. as to what happened on the stairs and in the front hall. Despite her animosity towards the accused, I am persuaded that J.S. accurately described what she witnessed on the stairs. I cannot conclude that the two of them fabricated this incident after. The contemporaneous text messages from L.R. to the accused about him having kicked L.R., and his responses, which I find are admissions by him of responsibility for having kicked her and hurt her, confirm, in my view, that neither L.R. nor her mother made this up at some later point. I accept their very similar accounts of the assaults, both on the stairs and at the front door. I am satisfied that as L.R. followed him up the stairs, A.R. mule kicked her with his right leg causing her to stumble backwards down the stairs. I am also satisfied that in the front hall, the accused threw L.R. down. I find him guilty of assault in relation to this incident.

Count 4: Utter threat to L.R. and C. R. between July 1 and 31, 2013

156L.R. testified about an incident that occurred in July, 2013 around the time their daughter was baptized. She said that she woke A.R. at around10:00 a.m. and that he was yelling and angry. In the kitchen, while she held her baby in her arms, he threatened to murder her and their daughter.

157L.R. said that she repeated what he had said loudly and was yelling as she hoped that neighbours would hear. She described herself as being terrified. A.R. ended up leaving.

158Text messages between them over the period between July 1 and 19 were filed. In a message of July 1, 2013 at 1:35 p.m., she says:

U treat me like crap. Say horrible things to me. Make me cry. Lay your hands on me. Choose everyone else over me and C.R.. Say you are going to murder us. All because at 10 am I wanted u to wake up and spend time with us for a change instead of just being in the same house. U said U would change. I hoped u would. U terrify me a. with ur instability. And then u run out on us to top it all off.

159His 8:00 p.m. response was “I have been a horrible asshole. I am deeply sorry to you and everything I said was uncalled for I am sorry…” He also said “I want the bubble to be just the three of us”. It was suggested to L.R. under cross-examination that A.R. had wanted the three of them together and that they had repeatedly argued about the presence of her mother. L.R.’s evidence was that her mother was not living with them and that A.R. did not want her to live with them. L.R. said that she mother would come to help her and come when she was afraid and then would leave.

160The next day A.R. texted L.R. at 10:21 a.m., “I am a fuck I am a scum I am sorry…”

161The defence makes two submissions about this count. First, it is argued that the complainant’s evidence lacks an air of reality because while she claimed to have been terrified, she did nothing and did not call the police. Second, the defence submits that the apology from the accused was six hours after the complainant’s accusation and cannot be said to be in response to it.

162I accept L.R.’s evidence that A.R. threatened to kill her and the baby on July 1, 2013. I also find that his text to her was an admission to having made the threat she had described earlier. There are no intervening messages. Further, I am not persuaded that L.R.’s decision not to call the police makes her evidence incredible. It is clear to me that she continued to hope that their marriage could be saved. She knew that calling the police would not assist their marriage. I find her evidence credible and reliable. A.R. will be found guilty of count four.

Count 9: Sexual assault on L.R. between August 1 and 31, 2013

163L.R. testified about an incident in August 2013, around the accused’s August 8 th birthday, in the bedroom of their home. She put the baby down for a nap and was going to take a nap herself. The accused called her into the bedroom, where he was standing at the end of the bed. She sat on the edge of the bed and they talked. Neither one was angry.

164L.R. said that in the bedroom, A.R. took his penis out of his pants and was waving it around. She could not recall what kind of pants he wore. She told him that she was tired. She perceived that he was then angry and he pushed her back onto the bed, put his left hand on her neck and put on a condom. She did not know where he got the condom from. He took her pants and underwear off and started to have sexual intercourse with her with his hand around her neck squeezing. She told him to stop and that he was being loud and would wake C.R. He put his other hand over her mouth, covering her mouth tightly. She could not breathe and shut her eyes as she did not want to look at him.

165She then opened her eyes and saw that A.R. was staring at her. She could not describe how long this incident was but said that it felt like it was forever. A.R. was yelling at her and she felt the spit flying from his mouth. She could feel his sweat dripping on her. L.R. could hear the baby crying from her room. He finished and then left the room.

166The defence position is that this never occurred. Counsel submits that there are many details that the complainant does not recall, details that she should remember.

167I have reviewed L.R.’s evidence in examination and chief and cross-examination. I do not think that the details L.R. could not recall were significant ones. Like the other incidents, she remembered the things that were unusual or significant – the squeezing of her neck, the spit flying from the accused’s face, his sweat dripping on her. While she clearly struggled in court to testify about this incident, I found her evidence as to what happened credible, her emotion to be a genuine response to having to describe a traumatic incident, and note that there were no inconsistencies in her evidence under cross-examination.

168I find the accused guilty of sexual assault in relation to this count.

Count 10: Sexual assault on L.R. between August 1 and 31, 2013

169L.R. described a second incident of sexual assault in August 2013. On this occasion, she had put the baby down for a nap and was laying on her bed with her eyes shut. She described herself as half awake and half asleep. A.R. came into the room. The next thing she knew he was on the bed and was grabbing her by the hair and pulling it. He put his penis in her mouth.

170L.R. said that she could not breathe or yell. The only thing she could think of to make A.R. stop was to bite down on his penis. She did so. He then stopped and asked what she was doing. He said “great, now I have to jack off”. She responded, “good”. He walked around and then stopped and stared at her. She testified that from his look, she thought he was going to kill her.

171I accept the complainant’s evidence about this sexual assault. While there are details she cannot recall, I find that they are not about significant matters. Once again, she provided unique evidence about this particular incident. She recalled important details – the penis in her mouth, her response of biting down, and the accused’s response that he would need to “jack off”. She was not inconsistent about anything of significance under cross-examination. The accused will be found guilty of count ten.

Conclusion

172The accused will be found guilty on all counts.

Woollcombe J.