Court File and Parties

Court File No.: CR14-86 Date: 2017/3/8 Ontario Superior Court of Justice

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Between: HER MAJESTY THE QUEEN – and – James Norton

Counsel: Jason Pilon, for the Crown Michael Crystal and Terry Mazerolle, Counsel for the Accused

Heard: January 9, 10, 11, 12, 13, 18, 19, 20 and February 6, 7, and 8, 2017

Reasons for Judgment

Leroy, J.

There are seven parts to these reasons as follows: Introduction, General Background, Allegations and Defence, Collateral Witness summaries, Governing Principles, Discussion and Conclusion

Part 1 - Introduction

[1] Mr. Norton is charged with two counts of assault and one of sexual assault. The issue is credibility. The complainant, MP, asserts Mr. Norton assaulted her twice when she confronted him over infidelity. She says Mr. Norton sexually assaulted her during the two-week period between Christmas 2013 and January 8, 2014 by inserting his penis in her anus without her consent. Mr. Norton denies the assaults and says the anal intercourse was consensual.

[2] The Crown called three civilian witnesses: the complainant MP, her sister-in-law K and her daughter E. Mr. Norton and TV testified for the defence. The defence adduced transcripts of Facebook and texting communications generated by MP, K and Mr. Norton.

Part 2 - General Background

[3] MP is 41 and single mother to E age 18. In the early part of 2013, they resided in Calgary with the husband and father. There was a separation. MP’s father resided in Cornwall. He was hospitalized. MP and E moved to Cornwall to assist the father’s recovery. They resided in the father’s apartment when MP met Mr. Norton. The father was scheduled for discharge at about the same time.

[4] MP was and is not gainfully engaged outside the home. She said she suffers from anxiety and agoraphobia for which she takes Clonazepam. She said she generated income teaching music lessons.

[5] Mr. Norton is age forty-five. He is Mohawk of Akwesasne. He served in the United States military. He has some carpentry and mechanical training. When he met MP, he was working as a mechanic’s apprentice in Dorion. He was residing in a rental on Cornwall Island. He has family on the reserve. He shared MP’s interest in music.

[6] MP and Mr. Norton discovered one another on an Internet dating site at the end of October 2013. They decided to meet face to face after a month of on-line correspondence.

[7] This was one of three known dating site connections Mr. Norton pursued at the time. MP said she was seeking friendly companionship as opposed to a relationship. She was uncomfortable with sex outside marriage. She referenced tenets of her faith that forbade sexual relations before marriage.

[8] They met at a Tim Hortons in Cornwall on Thursday November 28th, 2013. They engaged sexually the next day. MP stayed over at Mr. Norton’s home on the Friday night and he stayed with her at her father’s apartment for the balance of the weekend.

[9] MP was soon enamoured of Mr. Norton’s charms. Their external circumstances aligned so MP could believe she had something meaningful in Mr. Norton. MP’s father was about to return home. His apartment was unsuitable for three or four occupants or MP’s piano and lessons. Her furniture was in limbo over a contract dispute with the carrier. Mr. Norton was in a dispute with his landlord and the hydro utility over the monthly hydro account payable for his home. The hydro was off and there was no heat. He had furniture.

[10] By early December, MP procured a rental on Bellamy. She believed she and Mr. Norton were in a couple-relationship before moving to Bellamy and understood they were discussing marriage. They moved pieces of Mr. Norton’s furniture into this residence on or about December 12, 2013.

[11] MP said she was surprised when Mr. Norton began staying at Bellamy. She denied offering an invitation. The Facebook communications belie both. Her Facebook communications beginning December 8th reflect a person smitten with Mr. Norton committed to cohabitation.

[12] In the first weeks of residence at Bellamy, things were pretty good. MP said she believed she was falling in love with Mr. Norton. Mr. Norton was effusive in his full appreciation of MP’s personal qualities. There was some suggestion they planned to get married. MP thought they had a date in mind. He said he reprised the Bruno Mars song “I think I want to marry you” as they arose on mornings he stayed over, but it meant no more to him than the overall sentiment expressed in the lyric.

[13] MP disclosed she had suspicions regarding Mr. Norton’s fidelity from the beginning. She caught him in lies, they made plans and he disappeared and when she called he replied by texting.

[14] E visited her father in Calgary between December 25, 2013 and January 8th, 2014. At some point, Mr. Norton said to E that “Sometimes I want to punch you in the face.”

[15] Mr. Norton left or was evicted from the Bellamy apartment in dramatic fashion on January 14, 2014. Both protagonists for their own reasons said their interest in a longer-term relationship had waned in the days preceding.

[16] MP reported to police on January 17, 2014 and charges were laid.

[17] Mr. Norton was arrested in front of the Bellamy apartment on January 26, 2014. He scheduled with MP to collect some of his things. MP notified the police who apprehended Mr. Norton when he drove up.

[18] MP tracked the vehicle owner to TV. When TV attended to collect her vehicle, she and MP spoke for approximately one hour in the Bellamy apartment. They discussed a variety of topics. TV recalls they discussed anal sex. MP denied any discussion with TV regarding anal sex.

Part 3 - The Allegations and the defence

1st Incident alleged

MP version

[19] MP and Mr. Norton were alone in the living room at Bellamy, early morning. They slept overnight on a blanket bed in front of the television. MP was first to awaken. She reviewed Mr. Norton’s cell phone text messages and discovered her relationship with Mr. Norton was not exclusive. She confronted Mr. Norton and observed he was angered that she breached his privacy. She said he grabbed her by the throat, squeezed and pushed her 1.5 meters into a chair. Her throat was sore for the remainder of the day.

[20] MP did not say how they normalized the fact of the twin relationship offences of infidelity and assault so they could move on. The tone of their Facebook communications did not change.

Norton version

[21] Mr. Norton agreed they had an argument over the infidelity inherent in the texts. He recalled the encounter occurred between 10:00 and 11:00 p.m. MP was watching a movie and he was asleep. His phone signaled a message – it was from a woman he was dating in Ottawa. He was surprised MP would breach his privacy by inspecting his phone messages. He would not inspect her phone records.

[22] This was not an exclusive relationship. In the forty-five or so days it lasted, he stayed overnight with MP approximately one-half the time. They had not discussed rent sharing or relationship exclusivity. He was not exclusive with MP.

[23] He said he recognized that MP’s feelings were hurt. She kept asking “why”. He did not have a good answer. He told her if this was a deal breaker then he would leave. He packed and went out to his vehicle. She followed and entreated him to return to the house. He observed her vulnerability, but could not explain this away in any satisfactory manner. He returned. On direct, he explained that in the end, he made the decision to take their relationship to a more exclusive level. He said he intended to break it off with the other woman, but when it came time could not do it. On cross-examination, Mr. Norton admitted this declaration was to appease MP.

[24] Mr. Norton denied the assault allegation. He was in flagrante delicto. He considered his choices were to leave the relationship or appease. He offered both.

2nd Incident Alleged

MP Version

[25] There was an incident of anal sex while E was visiting her father between December 25 and January 8. MP and Mr. Norton were alone at Bellamy, engaged in consensual vaginal intercourse.

[26] Mr. Norton wanted to change to anal intercourse. She told him “No, you know I don’t like that”. He repeated his desire in this respect and she declined several times to the point she lost interest in the sexual encounter. When she tried to move away, he put her on her stomach and re-entered her vagina. He then penetrated her anus. She said she was surprised and in extreme pain. When she cried for him to stop, he told her to shut up. He grabbed her hair and pushed her face into the pillow. She struggled to breathe and thought she was going to die. It ended when he ejaculated.

[27] In the aftermath, Mr. Norton gloated over her and said: “You let me rape you and could not stop me”. He instructed her to take a shower, he joined her and performed most of the cleanup. For the remainder of the day, he treated her as if everything was good.

Norton Version

[28] Mr. Norton presented a different tableau. MP told him her sexual experiences had been repressed and she was grateful for the opportunity of experimentation. She expressed interest in bondage, light spanking and anal intercourse. They had many open discussions regarding sexual options. MP, E and Mr. Norton went to Shoppers together. MP purchased suppositories and lubricant. As they were leaving, adults in the front seat and E in the back, MP said “we will be naughty when E is gone”. He changed that to she mouthed those words when confronted with the improbability of such an overt suggestion in E’s presence. They engaged in verbal foreplay daily as they grew the anticipation.

[29] They engaged in anal intercourse three times in the forty-five days of the relationship. On each occasion, MP instigated. She inserted suppositories the first time and applied lubricant to her backside and his penis the others.

[30] Mr. Norton recounted the second event of anal intercourse that occurred while E visited her father. MP applied a quantity of lubricant. Following anal penetration, she wished to apply more lubricant and did. He resumed. She asked him to hurry it up as she felt a bowel movement. He tried to go more quickly but she reached for a pillow and moaned. He observed that as discomfort and withdrew. He offered that his libido waned on hearing about prospects of a bowel movement. She enquired as to his withdrawal, he kissed her on the cheek and suggested a shower.

[31] They showered after sexual interaction. This was no different than any other time. He always allowed MP a few minutes private time in the washroom before joining her in the shower.

3rd Incident Alleged

[32] Mr. Norton said they engaged in consensual anal intercourse during the morning on January 14, 2014. That segues into the second assault charge. He recounted that after another event of consensual anal intercourse, he left his cell phone in the bathroom with MP so she could listen to music. A text from the other woman sounded around 11:00 a.m.

MP Version

[33] MP said that Mr. Norton asked her to check his phone for messages. She discovered the text. The message confirmed Mr. Norton’s ongoing infidelity. She suspected he wanted her to find it. Her emotions were confused. She was irked and felt used. She was paying for everything while he was carrying on the affair. On the other hand, MP testified to feelings of relief. She had been trying to find ways to motivate Mr. Norton to leave and this was the opening. He said he would pack his things and leave for good. She would not have to confront him about vacating the residence.

[34] She concluded Mr. Norton was taking too much time gathering his things. She suspected he was waiting for her to ask him to stay. He appeared angry. She determined to confront the situation and as they were climbing stairs demanded to know why he cheated on her. When he reached the last step, he turned toward her and grabbed her throat and squeezed for perhaps a few minutes. He lifted her so her feet were barely touching the step. His face showed rage. The physical manifestations of the assault included hand marks around her throat and difficulty speaking for a few hours. She retired to the basement when he released her.

[35] MP texted E asking her to come home early. She said E observed the bruising on her neck and scratches on her face. MP could not explain what caused the scratch. She told E she was waiting for Mr. Norton to leave. In response to E’s enquiry as who did it, she said Mr. Norton hurt her as he was taking too long to leave.

[36] MP and E determined to call E’s Aunt K. MP said she needed K’s help because Mr. Norton had just hurt her and she was afraid he would hurt her again if she asked him to leave. E observed that MP’s determination to evict Mr. Norton was waning over the hour or so between E’s and K’s arrivals.

[37] On cross-examination, MP denied an emotional response to learning of the ongoing infidelity. She had resolved the matter of his betrayal and it was not an issue.

[38] At one point in cross-examination, relative to the texts that K sent to Mr. Norton on the 14th/15th, MP denied having related the sexual assault assertion to K. Later, in the context of discussion regarding payment of the disputed storage fee, MP said she was unsure whether she told K about the rape on the phone before she arrived or on her arrival.

[39] MP made tentative feelers to a police officer she knew on the 15th of January 2014. She reported to police on the 17th. She said fear was her motivator. On the one hand, Mr. Norton was very nice in his communications, even offering to let her hold onto his furniture until hers was released. On the other, when she neglected to respond to his texts for a few hours, he threatened to arrange immediate collection with the assistance of family and police.

Norton version

[40] MP was devastated over the realization of his ongoing infidelity. She was hiccup crying, her eyes were red and she was hyperventilating. He said there was no assault. He packed his stuff. MP was on his heals the whole time. MP repeated the lament that she had given everything she could, but it wasn’t enough. He did not have a good answer. He told her that would be a subject for discussion if they hoped to reconcile. He had determined to end the relationship in the week or so before. He was uninterested in coping with MP’s psychological issues. It was over.

[41] The argument began around 11:00 a.m. He was out of the house by 2:30/3:00 when K arrived.

[42] He was trying to extricate himself gracefully. He was challenged with concerns over recovering his furniture. He thought everything was going as well as could be expected until E asked MP if she was OK. When Mr. Norton asked MP what that was about MP said he had put his hands on her to which he said “that is crazy - never touched her.”

[43] Everyone agreed that Mr. Norton was no match in a confrontation with K. Mr. Norton vacated the apartment to avoid any possible confrontation with K. Mr. Norton said he expected an all-clear call from MP after K’s departure that never came as K appropriated MP’s cell phone.

Admissions

[44] The parties agreed in accordance with ss. 655 and 275 of the Criminal Code there would have been a telephone conversation between MP and Erin Forseth during the evening hours in the first week of January 2014 in which MP would have discussed the nature of the first two allegations before the court.

[45] The protagonists exchanged the following Facebook communications on January 3rd and 4th:

MP to Mr. Norton: January 3 9:37 p.m. – I’m really getting worried…I hope everything is ok…it’s past 8:30 p.m. Mr. Norton to MP: January 4 2:54 p.m. – Oh no…didn’t realize I had a curfew. Mr. Norton to MP: January 4 2:54 p.m. – Your being silly. Mr. Norton to MP: January 4 2:54 p.m. – You can suck it dear!!!! MP to Mr. Norton: January 4 2:54 p.m. – Not when you’re not here.

Part 4 – Collateral Witness Summaries

E

[46] E’s memory and perception were sketchy. She was fifteen at the time. Her life was in turmoil. Her parents had recently separated and from her viewpoint remained conflicted. She and her mother moved from Alberta to Cornwall. She disliked the new school. E said she took little notice of Mr. Norton. He didn’t add value to her life. She did not know his full name. She did not characterize him as her mother’s boyfriend. She observed that her mother was attached to him but he was detached. He was there and not there.

[47] It is common ground that Mr. Norton directed the words “Sometimes I want to punch you in the mouth” to E.

[48] E’s recall is that the context for the statement was sarcasm rather than aggression. She recalls that the three were watching television. She was sitting on one side of her mother and Mr. Norton on the other. That stopped their conversation and they resumed focus on the television program. She does not recall her mother’s response to the statement.

[49] E could not commit to a timeline for this exchange. Her recall is that this was said in the early middle part of the relationship. She was pretty certain it was not said on January 14, 2014.

[50] Mr. Norton said those words were said on the 14th as he was leaving to get soda pop and snacks at the corner store. He said E drank the last soda in the house knowing that MP had a headache and pop assuaged the pain. He asked E to finish the dishes while he was out and she refused – he said the words. He recalled that MP was traversing the stairway with laundry at the time.

[51] Mr. Norton said his context for the comment derived from E. He said E was displeased with a teacher at school and had said she would like to punch the teacher in the mouth. No one was going to punch anyone – it was a rhetorical expression – a figure of speech.

[52] MP recalled that this conversation occurred one or two nights before the fourteenth. MP said this behaviour was a shock to her as she had never experienced anything like it. This was the genesis for MP’s determination to end the relationship. She agreed that E centered the breakdown of the relationship with Mr. Norton.

[53] When Mr. Norton said the words is unimportant. That they were re-constituted into a threat is material.

[54] E testified about her observations on the fourteenth of January. She left school early at her mother’s behest. When she entered the home, her mother told her that Mr. Norton had grabbed her by the neck. E observed a 3 – 4 inch scratch on her mother’s lower right jaw. She said it was red as if it was beginning to heal over. She did not observe hand marks on her mother’s neck. She talked with her Aunt K before Mr. Norton vacated the premises. She said it is possible she mentioned the statement Mr. Norton made to her about the punch in the mouth to K.

[55] She had arranged with K that K would text when she was ten minutes out. E did not tell her mother about the imminent arrival because her mother was reconsidering her decision to break it off with Mr. Norton. She wasn’t convinced her mother would stick to her guns.

K

[56] K is the complainant’s sister-in-law and E’s aunt. She resides in Montreal. K recalled having met Mr. Norton once during the celebration of E’s birthday party. She was unimpressed. K’s bias was firmly with MP and contrary to Mr. Norton.

[57] She said she received three telephone calls in ninety minutes on the fourteenth. The first sourced from E who told her she needed to talk with MP because MP was hurt and afraid. K instructed E to have the complainant call her. She said the second sourced from MP approximately 45 minutes later. She said MP was crying hysterically and hyperventilating and that MP told K Mr. Norton had raped her. K said the third call sourced from E who told her that Mr. Norton threatened to punch E in the mouth.

[58] K said she arrived at the apartment between 2:30 and 3:00 p.m. on January 14, 2014. K said by the time she was underway, she knew that Mr. Norton had threatened E – the punch in the face and sodomized MP without consent.

[59] She planned to surprise Mr. Norton and arrange an arrest on her arrival. MP thwarted that plan by alerting Mr. Norton to her pending arrival.

[60] K testified to observing bruises and finger marks all over MP including her neck, back, shoulder blade, wrists, upper arms and she felt a large bump on the back of MP’s head. That evidence does not correlate with MP’s narrative.

[61] In her statement to police, K vilified Mr. Norton. She characterized Mr. Norton, a person she met once in a social setting, as a sociopath in the statement.

[62] K said that when they adjourned to the bathroom, MP described how Mr. Norton slammed her against a wall to explain the bump on MP’s head and back bruising. K said that is when MP told her about the sodomy. K did not recount the private bathroom discussion and examination in her statement. That is not part of MP’s narrative. The investigating officer and hospital staff were unable to discern injury on January 17, 2014.

[63] K said that when someone threatens your family you do what you have to to protect.

[64] K said that when she observed the contusions she became angry. She determined to intervene and took control of MP’s cellphone. She did not take pictures of the contusions with the smart phone.

[65] K messaged Mr. Norton using MP’s cell phone on the fourteenth and possibly the fifteenth of January, 2014 as follows:

“Shame for you cause you had yourself a great woman who would have done anything for you. She’s an extraordinary woman with a big heart who deserves better as E does too. A bit too gullible and vulnerable and thinks she’s in love with your sorry ass but that’s why I came running when E told me this bullshit about wanting to punch her in the face . You don’t say that to a kid…You’re lucky she refused me calling the cops last night like I wanted to for your stupid threats to a kid… I just hope she never has to put up with any shit lies you try to tell her. I’m the one who had to listen to her cry all night you stupid fuckhead.”

[66] K threatened Mr. Norton – “Don’t harass them – the first place I drank beer was on the reserve – tread very carefully… Perhaps I was too subtle. I’m just sorry she told you I was coming and I couldn’t tell you all this to your fucking face!!! Remember what I said – tread carefully.”

[67] Mr. Norton responded in kind:

He wrote: Let’s address the most important first. I did say those words to E, but in a joking manner as she was joking with me as well. He alludes to the innocent context more than one time later on.

TV

[68] TV met Mr. Norton on the same Internet dating site in the same time frame he connected with MP and the other woman. Her affection for Mr. Norton sustains.

[69] She reported a hiatus in contact with Mr. Norton over December /January. They made contact January 19, 2014 and spent the night together at Mr. Norton’s mother’s home. Mr. Norton moved into her home on January 20, 2014. She lent her car to Mr. Norton on January 26, 2014 so he could collect his belongings. Her vehicle was abandoned on the street when Mr. Norton was arrested.

[70] She talked with MP after the arrest. MP reached out to TV as MP was curious about the ownership of the vehicle Mr. Norton drove to collect his belongings on the day of arrest. MP asked TV to call. When they connected, MP asked TV who she was. When TV responded that she was his girlfriend, MP declared “You can’t be because I am.”

[71] TV recounted that MP seemed to want to tell her that Mr. Norton had been arrested for assault. She did not mention sexual assault in the call. Knowledge of the arrest was a shocker to TV.

[72] TV attended to collect her vehicle on notice to MP who invited her into MP’s home. TV did not decline. She was curious. They talked for some time. MP reported assault and sexual assault.

[73] TV testified that MP was distraught and wanted to talk about the failed relationship. She said that MP considered she and Mr. Norton were in a lifetime relationship that included marriage and child or children. MP said Mr. Norton told her he wanted to marry her. Learning of Mr. Norton’s infidelity upset and confused her.

[74] She said MP expressed ambivalence about anal sex. On the one hand the fact of anal sex was depicted as long-term relationship exploration. On the other, she said MP expressed shame and upset as that was not something good girls do. TV said that MP could not recall if she rejected Mr. Norton’s overtures regarding anal sex or not. TV said that MP described how after the event Mr. Norton took her to the shower and was kind. MP said she was crying in the shower and Mr. Norton asked her why. MP said she was ashamed.

[75] TV observed MP to be in a fragile emotional state. She said she was uninterested in hearing about the particulars of her boyfriend’s sexual adventures with a past girlfriend, but felt that interrupting MP’s narration was unsafe for MP. TV said she told MP at one point she did not want to hear this and the conversation had gone in the wrong direction.

[76] In the course of the visit, MP said she received news from the hospital confirming she was not pregnant and was not afflicted with an STD. That reassured TV.

[77] It was not a one-sided conversation. TV disclosed she had a daughter, she is a cancer survivor and she had experienced domestic violence and other pieces of personal information appropriate to the context. She said the context for disclosing experience with domestic violence was response to MP’s own disclosures regarding marital domestic violence.

[78] TV served as Mr. Norton’s surety. They lived together for eleven months. On or about January 2, 2015, after a night of drinking, TV and Mr. Norton argued over TV’s flirting and Mr. Norton assaulted TV. She reported to police, his bail was revoked, he was charged, Mr. Norton accepted responsibility and pled out.

[79] TV said MP contacted her a few times after this meeting. TV said she learned of the other woman from a group text authored by MP the next day. TV said MP contacted her early in January 2015 enquiring about the circumstances of the separation. She said there were other communications. When MP asked TV to attend a seminar in January 2016, TV instructed MP to sever contact. MP agreed on cross-examination that it is possible she contacted TV on other occasions.

Part 5 - Governing Principles

[80] Mr. Norton is presumed innocent unless and until Crown counsel proves his guilt beyond reasonable doubt. This presumption stays with him throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Mr. Norton does not have to prove anything. My task was to determine whether all the evidence has proved these offences beyond a reasonable doubt.

[81] The burden of proof beyond reasonable doubt applies only to the trier’s final evaluation of guilt or innocence. The standard of proof beyond reasonable doubt does not apply to the individual items or separate pieces of evidence in the prosecution’s case, but rather, to the whole body of evidence upon which prosecution relies to establish guilt – R. v. Bouvier (1984), 11 C.C.C.(3d) 257 (ONCA), affirmed, [1985] 2 S.C.R. 485, R. v. Menard, [1998] 2 S.C.R. 109.

[82] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to absolute certainty than to proof on a balance of probabilities.

[83] Credibility and reliability are different. Credibility has to do with the witness’ veracity, reliability with accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence. Credibility is not a proxy for reliability; a credible witness may give unreliable evidence; R. v. C.(H.), [2009] ONCA 56 – per Watt J.A., R. v. Morrissey (1955), 22 OR (3d) 514.

[84] I can believe some, none or all of a witness’ testimony.

[85] The assessment of evidence includes consideration of benchmarks of reliability and credibility such as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency and consistency with other evidence, the availability of other sources of information and context – the significance of the event to the witness at the time it was perceived. The trier can use the demeanour of a witness as part of the assessment of a witness’ credibility. The existence of a motive to fabricate is germane to a witness’ credibility.

[86] One valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness said on other occasions whether on oath or not. Inconsistencies on minor matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness…But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The judge is then placed in a dilemma of trying to decide whether or not it can rely on the testimony of a witness who has demonstrated a carelessness with the truth – R. v. G.(M.) (1994), 93 C.C.C.(3d) 347 – per Justice Galligan J.A.

[87] Where the defence calls evidence, the determination of guilt cannot reduce to a credibility contest. The burden of proof is always on the Crown regardless of what evidence the defence provides, fails to provide or chooses not to provide and never shifts to the accused. If I believe the defendant’s evidence on an element of the offence or am not sure about that evidence, I must acquit. If defence evidence fails to raise a reasonable doubt about any element of an offence, the burden of proof remains on the crown and the process requires a determination whether Crown evidence in light of all the evidence has proved each element beyond reasonable doubt.

[88] An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence that is accepted is as much an explanation for the rejection of an accused’s evidence as is rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence – R. v. D.(J.J.R.), [, 2006] O.J. No. 4749 (Ont. C.A.) para 53.

[89] There is no inviolable rule about how victims of trauma will react. Reactions vary. The timing of the complaint is one factor to consider in assessing the complainant’s credibility. Delays in disclosure must not be used to support an adverse inference against the complainant’s credibility. In considering whether a complainant acted after the incident in a manner consistent with her story, the trier can consider, among other factors, the complainant’s state of mind, age and level of maturity, sense of confidence and composure and the relationship between the complainant and the accused – R. v. D.(D.), [2002] 2 S.C.R. 275.

Essential elements of the offences charged

Sexual assault

[90] The external circumstances of sexual assault include touching, sexual nature and absence of consent. The mental element in sexual assault has two components: the intention to touch and knowledge or recklessness of or willful blindness towards lack of consent – s. 271 CC. The act is admitted.

[91] No consent is obtained when the complainant expresses by words or conduct a lack of agreement to engage in the activity or the complainant having consented to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity. – s. 273(1)(2).

[92] Corroboration is not a prerequisite for conviction – s. 274. This is a case without corroboration.

Part 6 - Discussion

[93] Do I believe the defence? Does defence evidence raise reasonable doubt? If not, does the crown evidence I accept persuade me beyond reasonable doubt of the essential elements of the offences charged?

[94] The defence is that the assaults did not occur and the anal intercourse was consensual.

[95] The question of whether the complainant had a motive to falsely accuse the accused and, if so, how that should affect her credibility, is squarely before the court.

[96] Mr. Norton presented as computer age Lothario.

[97] Two of the women Mr. Norton charmed near the end of 2013 testified. Both think they fell in love with him and believe/believed he with them.

[98] Infidelity tends to inflame relationship dynamics. The realization that one has been deceived in love can engender a pinnacle of emotion and the urge to exact retribution.

[99] The complainant was a recently separated single mother living in a new city willing to risk what might come from a web-based dating site. K described her as gullible and vulnerable. MP believed she had uncovered her lifelong partner in Mr. Norton. Her feelings were never reciprocated. The disparity crystallized on January 14, 2014.

[100] The evidence of criminality derives solely from MP. The credibility and reliability of her evidence has to be tested in the light of all the other evidence.

[101] MP, three years after these events, determined to present as passively reflexive to Mr. Norton’s initiatives towards her. She made disingenuous statements directed at defusing the motive inherent in the backdrop of the scorned party. For example she said:

1. Mr. Norton pushed this relationship on her and she was concerned he had fallen for her after the one meeting. She was looking for friendship as opposed to a couple relationship. The Facebook communications reveal, if anything, she was besotted and pleading for his company within the first days. Mr. Norton, in the context later learned of being in the company of another woman, was attentive but non-committal in his responses. Mr. Norton knew MP’s perspective and manipulated her, but was not pushing a significant relationship. He gave enough to keep her on the line without being responsive.
2. She was surprised when Mr. Norton moved into the Bellamy apartment uninvited. MP perceived that Mr. Norton actually moved in. The reality is that Mr. Norton made an appearance of moving in. Both E and Mr. Norton depict his residential circumstances as there and not there. He was there half of the time. The Facebook communications reveal that MP would have been surprised and disappointed had Mr. Norton not made a show of moving there. There were clearly other discussions regarding furniture that belie her “surprise” assertion. Two weeks after the first face to face meeting, MP considered them to be in a couple relationship. She interpreted the lyric to a Bruno Mars song literally.
3. She was uncomfortable with sexual relations outside of marriage, citing religious tenets. This representation is incongruous with her actions. MP and Mr. Norton participated in regular consensual sexual intercourse beginning the day after their meeting.
4. She immediately internalized the fact of Mr. Norton’s infidelity and the end of the relationship on January 14. Her upset was a manifestation of fear for safety. Aside from Mr. Norton’s testimony regarding MP’s emotional state and the reasons for it and TV’s recounting of what MP told her weeks after, K who brought a Machiavellian “do what she had to for family” to her testimony reported how K had to listen to MP crying all night as the result of his shit lies.

Collusion

[102] Mr. Pilon argued that the discrepancies in testimonies of the Crown witnesses, regarding the events of January 14, 2014, contraindicate collusion. As disparity in individual versions increases, concern for collusion reduces.

[103] I understand the argument in the context of assessing the admissibility of similar act evidence across counts and victims where the collusion concern is the possibility that the complainants in sharing their stories with one another, intentionally or accidentally, allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing.

[104] Here, Mr. Norton and MP are the only actors in the criminal acts alleged. The issue is whether motive to exact retribution for infidelity influenced discussion between MP and K. K and MP spent hours together when MP was in crisis on the 14th and possibly the 15th of January. The text in which K adverts to the threat and lies alludes to an overnight. K fabricated evidence of observed injuries. She agreed with the postulate that when it comes to family anything goes.

[105] She said she urged MP to report the threat to the police. She lit into Mr. Norton over the threat to E and the lies inherent in his philandering. Someone elevated the sarcastic rhetoric that E conceded was the purport of the threat into a true threat. Neither of Mr. Norton nor E characterized the words as threat. I have to conclude the allegations of assault and sexual assault were not communicated to K before she texted Mr. Norton. K lacked restraint. She was incensed by news of a threat and of philandering. Had she been advised, she would have adverted to those crimes in the texts.

[106] The inference from this is that K fabricated the injury evidence subsequent to sending the texts. MP and E testified to K’s strong will. K said she urged MP to take affirmative action. When K counseled MP the likelihood is that MP listened.

Recent Fabrication

[107] Mr. Pilon submitted that the fact of the call to Mr. Forseth during the first week of January 2014 wherein the complainant discussed the nature of the first two allegations denudes the assertion of recent fabrication he argues is central to the defence theory of the case.

[108] Prior consistent statements offered to rebut an allegation of recent fabrication have probative value where they illustrate that the witness’s story was the same before the motive to fabricate arose. Given that Mr. Norton was absent from the Bellamy apartment for at least overnight on the January 3rd and MP and Mr. Norton continued to engage in communication foreplay into the afternoon of the 4th, this conversation took place in the period January 5th – 7th, 2014, a week or so before the 14th.

[109] The task of unpacking a relationship retrospectively is impossible. I can’t be sure a jilted lover’s reconstruction wasn’t a nascent percolating work in progress when MP called Mr. Forseth. This conversation occurred at day 37 or 38 of a 45-day love affair for one and diversion for the other. MP suspected ongoing infidelity throughout. She said she suspected Mr. Norton wanted her to discover the incriminating text on the 14th. Her suspicions had to weigh on her mind.

TV

[110] TV was credible. She withstood vigorous cross-examination. Her bias was with Mr. Norton, but my observation is she was careful to answer truthfully. Mr. Pilon argued that delays in her responses were indicators undermining her sincerity and reliability. That said, Mr. Pilon correctly in my view refrained from suggesting fabrication or distortion on her part. True to her duty, TV reported the domestic assault on January 2, 2015.

[111] I accept that when she met TV at Bellamy MP remained distraught over the ending of the relationship. I accept that MP and TV discussed a whole range of life topics including the anal intercourse and infidelity and MP was unable to state she had not consented to anal intercourse. When TV departed after this conversation her concerns for assaultive behaviour were ameliorated to the point she agreed to serve or continue to serve as Mr. Norton’s jailer.

[112] I accept that MP solicited TV after the first meeting.

Norton/MP

[113] Mr. Norton denied the charges before the Court. He gave his story. It isn’t unassailable, but it doesn’t have to be.

[114] Mr. Norton is not a sympathetic character. It is fair to conclude that deception in matters of sexual relationships is his craft. He evades discussion about rent contribution or relationship exclusivity. If those discussions don’t occur he retains, at least in his mind, plausible deniability. In short order he persuaded MP and TV, two intelligent women, to financially support his lifestyle.

[115] Mr. Norton said that when MP confronted him over the other woman for the first time his options were to leave or appease. He said he agreed to take the relationship with MP to a more exclusive level – he did not say exclusive. It makes sense that MP would accept that commitment at that stage of the relationship. The angry response attributed to Mr. Norton fails to resonate.

[116] On direct, Mr. Norton attempted to present a kinder patina to his intentions when giving the more exclusive undertaking to MP. On cross-examination conceded the undertaking was given to appease. He said twice that when confronted with an angry partner he retreats. It is correct he did not retreat when he assaulted TV but ironically the circumstances there were reversed. In that situation he was feeling the rejection. If anything the difference harvested on cross-examination reinforced the Lothario context he brings to his relationships.

[117] E discerned the differences in their perspectives on the relationship. Her mom was committed to Mr. Norton but he was there and not there. For Mr. Norton, this was a good deal – he could come and go as he pleased, the sex was good and MP paid the way. He was not desperate for a relationship with a particular woman. He was knowingly insensitive to MP’s sensibilities.

[118] When the prospect of other women in Mr. Norton’s life first arose, MP was of the view they were exclusive to one another. She was happy. Mr. Norton was spending time in her home. She had some of his furniture. They enjoyed each other’s company. She was thinking he is the one for me. Mr. Norton said that they had not discussed exclusivity. They discussed sexual preferences while so engaged and obviously such matters as using his furniture in her apartment. It was not unreasonable for MP to think exclusivity was implicit and did not require discussion.

[119] So when MP learned of the other woman, human experience suggests she would have experienced a range of emotions. Of the two, she is the one who would be angry, hurt, afraid of loss, betrayal and general angst. What seemed so good seemed to have been sundered in the seconds it took to read the message. Of the two, she had reason to be upset.

[120] Mr. Norton was not positioned to engender righteous indignation. He was superficially invested in the relationship. His take on the situation resonated. He was caught with his hand in the cookie jar. He said he offered to leave. He said he allowed MP to talk him back and he placated by making an empty promise to take their exclusivity to a higher level. That seemed to work.

[121] As regards the sexual assault, Mr. Norton’s narration regarding discussion about breaking the chains of MP’s sexual inhibition could be true. It is agreed they discussed anal intercourse. They don’t agree on the terms of agreement. They do not agree to the frequency. I do not understand the juxtaposition of Shoppers’ evidence relative to the first incident of anal intercourse Mr. Norton described. Why would MP say or mouth the words “we will be naughty when E is gone” when E did not leave until December 25, 2013, a date subsequent to the first incident as narrated by Mr. Norton. As regards the shift in narrative from she said the words to she mouthed the words Mr. Norton could have been improvising on the go.

[122] Regardless, the issue is not whether MP consented to anal intercourse on two other occasions. It is whether she consented on the occasion before the court when E was visiting her father. We will never know what really happened. I accept MP did not enjoy the experience. Mr. Norton agreed with that aspect. I accept MP was embarrassed for having engaged in a sexual act she considered something good girls do not do. Lingering, is concern for reconstruction of the nature of events on learning she submitted to acts she did not enjoy with a man she trusted at the time but was playing her on all levels.

[123] As regards the assault alleged on January 14th, 2014, again that he would be angry at MP when he was the party with his hand in the cookie jar does not resonate. As it turned out he had places to go and did. Human experience suggests it would be MP who was hurt and confused. The same perspective that makes me uncomfortable with MP’s particulars of the first assault alleged pertains here.

Part 7 - Conclusion

[124] Mr. Norton has to be acquitted of these charges. I have significant reservations regarding the veracity of MP’s allegations. The evidence as a whole leaves me in doubt of the veracity of MP’s allegations. She is a gentle but gullible person who was poorly treated by the accused. Her world was rocked on January 14, 2014. She discerned the sham that was the relationship. Her effort to misdirect the court relative to her role in the formation of the relationship and her sensibilities through the forty-five days was disconcerting. Her sister-in-law had significant influence. K fabricated evidence. That K had opportunity to influence MP to retrospectively modify the detail of recent events is a significant concern.

[125] Mr. Norton’s testimony was not compelling. He improvised. I believe TV and her evidence directed at MP’s inconsistent statement. I accept MP made a prior inconsistent statement going to the heart of the sexual assault to TV. MP did not confirm she did not consent. She said Mr. Norton was kind and caring in the aftermath of anal intercourse to TV and to the court said he gloated about his power over her. Those inconsistencies raise issues about her commitment to the truth and tainted the credibility of her testimony across the counts.

[126] In the end having regard to the W(D) structure I tend to believe the defence or at least am unsure of Mr. Norton’s guilt in large part because I do not have confidence in the truth of the claims advanced by MP against Mr. Norton.

[127] The charges are dismissed.

The Honourable Mr. Justice Rick Leroy Released: March 8, 2017