Court File and Parties

COURT FILE NO.: CR-16-3818-0000 DATE: 20170720 Oral Decision: July 20, 2017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen – and – D.K.N. Accused

Counsel: Craig Houle, for the Crown Kevin Shannon, for the Defendant

HEARD: May 30, 31, June 1, 2, 2017

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, R.S.C. 1985, c. C-46, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

JUSTICE C. M. BONDY:

A. Background

1) Introduction

[1] The accused, D.N., was charged with four offences contrary to the Criminal Code, R.S.C. 1985, c. C-46.

[2] The first three offences arise from the same fact situation. They are assault contrary to s. 266 of the Criminal Code, sexual assault contrary to s. 271(1), and choking with intent to enable or assist himself to commit an indictable offence contrary to s. 246(a). All three offences are alleged to have occurred on or about July 6, 2008, and all three are alleged to have occurred as against the complainant, K.B.

[3] The fourth was theft of a bicycle with a value not exceeding $5,000 contrary to s. 344(b) of the Criminal Code. The bicycle allegedly stolen belonged to K.B. This charge was withdrawn at trial at the request of the Crown and with the consent of the defence.

[4] As of the time of trial D.N. and K.B. were both approximately 52 years of age.

[5] K.B. and D.N. met in 2001. Their relationship progressed quickly over the next few months and ultimately became romantic. Although the two did not move in together, D.N. would often come to K.B.’s house for dinner and then spend the night. Although D.N. never received mail at K.B.’s house, he would sometimes stay for a week or more at a time. Although K.B. was unable to say with certainty, she did suggest that he may have stayed there for up to eight months at one time. In any event, the two spent a great deal of time together.

[6] D.N. testified that there was a period of time between 2001 and 2006 when the two had no contact whatsoever. That timeframe is more fully considered below in the context of the quality of D.N.’s evidence. D.N. also described the relationship as being on again off again.

[7] During the relevant timeframe, K.B. was living in Windsor, Ontario, with her then nine or ten-year-old son. They lived in the main floor of a two unit duplex. She described the unit as having three bedrooms, a living room, a dining room, two bathrooms, a kitchen and a basement.

[8] In examination-in-chief, K.B. testified that she slept in the bedroom next to the dining room, her son slept in the second bedroom, and the third bedroom was used for storage. She acknowledged in cross-examination that her friend Robert used to stay in the third bedroom from time to time. K.B. described Robert as a “coach surfer”. K.B. however denied a defence suggestion that Robert used to deal drugs from her home.

[9] The events giving rise to counts one, two and three are alleged to have occurred in K.B.’s home.

[10] D.N. and K.B. both testified that the two had ended their relationship on June 8, 2008. The versions of events surrounding that breakup given by each are irreconcilable. The differences in those versions of events are important to the assessment of both D.N. and K.B.’s evidence as to the events of July 5 and 6, 2008, and accordingly are more fully considered below.

[11] In K.B.’s version of events, D.N. entered her house sometime in the late hours of July 5 or early hours of July 6, possibly using his key. Once in the house D.N. physically assaulted K.B., choked her, and then the following morning had sex with her. According to K.B., although she took part in the sex it was her evidence that her consent was not voluntary. K.B. said that she participated out of fear because of the assault that had taken place that night. These events are more fully considered below.

[12] K.B. reported the matter to the police by calling 911 at approximately 10:00 a.m. on July 6, 2008. She was examined at the sexual assault treatment centre on July 6, 2008, and she gave a video statement to the police the following day on July 7, 2008.

[13] In D.N.’s version of events, he was not even at K.B.’s house on July 6. D.N. maintains that an unidentified third party assaulted K.B. D.N. testified that he had consensual sex with K.B. on July 5, which was the source of his DNA found in K.B.’s vagina.

[14] In any event, D.N. was not finally arrested on these charges until October 6, 2015. According to defence counsel, the police had not made any serious attempts to locate D.N. A preliminary inquiry was held October 21, 2016.

2) Admissions

[15] The defence admits identity and jurisdiction. The defence also admits the results of Exhibits 1 and 2. Exhibit 1 is a report regarding a forensic DNA analysis of semen found in a vaginal swab taken from K.B. on July 6, 2008. The report was completed by the Centre of Forensic Sciences (“CFS”) (“the first report”). Exhibit 2 is a report regarding a forensic DNA analysis of semen taken from D.N. on the authority of a warrant on October 6, 2015. That report was also completed by the CFS (“the second report”).

[16] The second report concludes that D.N. cannot be eliminated as a suspect and that the odds are one in 140 trillion that it is not D.N.’s DNA which was found in the vaginal swab taken from K.B.

[17] During the course of the trial, D.N. acknowledged specific parts of a criminal record. To be clear, it was D.N. who put those convictions in issue. He did so on several occasions for several different reasons. Once D.N. had put the convictions in issue, I did at the request of the Crown consider them for purposes other than those put forth by D.N. Those uses are more fully considered below.

3) The theory of the defence

[18] There were two elements to the theory of the defence.

[19] The first was that K.B. and D.N. had consensual sex in the afternoon of July 5, 2008, when he had come over to make arrangements to pick up his nephew’s dog. As said above, the defence maintains that this sex explains why D.N.’s DNA was found in K.B.’s vagina when she was examined on the afternoon of July 6. K.B. acknowledged that D.N. may have come over on July 5 to discuss the dog but steadfastly denied they had consensual sex at that time.

[20] The second element was the defence position that someone other than D.N. had assaulted K.B. The defence argues that K.B. was trying to “pin” the beating on D.N. because she was angry about the events surrounding the June 8 breakup. Defence counsel suggested that K.B. was unhappy because she was not successful in having charges “stick” to D.N. relating to what she described as a prior assault that had taken place on June 8.

[21] K.B. denies having sex with D.N. on July 5, and she denies that she reported D.N. to the police, and testified against him at trial, to get back at him for the events of June 8, 2008.

B. Evidence

1) The Crown evidence

a) The witnesses

[22] The Crown called four witnesses.

[23] The first was the complainant, K.B.

[24] The second Crown witness was Suzanne Porto. Ms. Porto is a “sexual assault treatment nurse examiner” at the “Sexual Assault Treatment Centre” at the Metropolitan Campus of Windsor Regional Hospital. Ms. Porto met with K.B. at approximately 1:30 p.m. on July 6. She made observations as to K.B.’s injuries and committed those observations to a “body map”, took photographs of them, and conducted the necessary procedures to complete the “sexual assault evidence kit”.

[25] The third Crown witness was Constable Peter Burke (“Constable Burke”). Constable Burke is a police officer with Windsor Police Services and was the acting lead investigator in this matter. Constable Burke was dispatched to K.B.’s residence at 12:12 p.m. on July 6 and arrived shortly thereafter. He was the first police officer to arrive at the scene. He interviewed K.B. at the scene, arranged for transportation to the Sexual Assault Treatment Centre, arranged for a safe house for K.B. when she left the hospital, and attended at the safe house the following day to take a video statement.

[26] The fourth Crown witness was Constable Ryan Jones (“Constable Jones”). Constable Jones is also a police officer with Windsor Police Services and was the forensics officer in this matter. Constable Jones took photographs of the scene and collected evidence such as bedding and clothing. Although biological materials were found on the items collected, they were not tested and were accordingly of limited evidentiary value in these proceedings. Constable Jones was also responsible for sending the relevant parts of the sexual assault evidence kit and D.N.’s DNA sample to the CFS.

b) Introduction

[27] I reiterate that there had been a falling out between K.B. and D.N. on June 8, 2008.

[28] D.N.’s nephew’s dog was however still at K.B.’s home. In examination-in-chief, K.B. testified that on July 5 she had asked her mother to negotiate for D.N. to come and pick up the dog. That was because she and D.N. were no longer talking. When asked in examination-in-chief whether she had spoken to D.N. at any time earlier that week, K.B. replied that she could not recall. In cross-examination, K.B. acknowledged that she may have spoken with D.N. on July 3 but could not recall with any certainty.

[29] In cross-examination, K.B. acknowledged that she had testified at the preliminary inquiry that D.N. had come to her house on the morning of July 5 and that she had discussed the issue of the dog directly with him. K.B. also acknowledged that she had not at all mentioned her mother at the preliminary inquiry.

[30] K.B. candidly acknowledged that she may have in fact met with D.N. that day. It was her evidence that she simply could not remember. In other words, K.B.’s evidence as to those events was less than clear.

[31] In any event, it was K.B.’s evidence that on July 5 she had arranged for her son to go for a sleepover and that she had gone to a neighbourhood bar. That was so neither would be home when D.N. came to retrieve the dog. It was K.B.’s evidence in chief that she believed that D.N. had a key to the back door of the house. As a result, he could let himself in to retrieve the dog and its belongings. To be clear, she did however acknowledge that she could not remember with certainty whether D.N. did have a key. Consistent with that evidence, during the initial investigation K.B. told the police that she had been attempting to retrieve D.N.’s key to her house for approximately three weeks as of then. Again, K.B.’s evidence was less than clear.

[32] According to K.B., she left for a local bar at around 6:00 p.m. on July 6. In examination-in-chief, she said that she had three or four beers with some friends from the neighbourhood and returned home somewhere between 9:30 p.m. and 10:00 p.m. In cross-examination, K.B. acknowledged that she could have under-estimated the number of beers that she drank that night but denied that it could have been as many as eight to ten. K.B. also acknowledged that she may have begun drinking that day before she went to the bar.

[33] Constable Burke was asked if he had observed whether K.B. had been drinking. He testified that she may have been, but that he had no notes as to her sobriety, or the possibility of alcohol or drugs playing a part in what happened. Constable Burke said that he would have made notes if he had formed the opinion that enough alcohol or drugs had been consumed by her to have been a factor in the events underlying these charges. Constable Burke acknowledged a recollection of having seen beer bottles at K.B.’s home.

[34] K.B. recalled that upon her return from the bar, the back door was unlocked. K.B. could not recall whether she had locked it when she left. In any event, she did notice that the dog and all of the dog’s belongings were gone. There was no one in the house.

[35] K.B. said that she had something to eat and went to bed by approximately 11:00 p.m. As said above, she could not recall what she was wearing that night, nor could she recall if she had locked the door. As a result, the issue of whether or not D.N. had a key to the back door was not a critical factor in her version of events. Before long, K.B. fell asleep.

c) D.N. enters K.B.’s home

[36] K.B. testified that sometime after she fell asleep she was awakened by D.N. pulling her hair. She could recall a loud gruff voice, but could not recall precisely what had been said. K.B.’s hair had been pulled hard enough that clumps of hair had been removed from her head.

[37] K.B. testified that D.N. then physically pulled her out of the bed and into the dining room. There he called her a “cunt”, and a “whore”, and a “crack whore”, and a “nigger lover”. The last expression was in reference to K.B.’s friend Mr. Taylor, who is black and who D.N. accused K.B. of having an affair with. Mr. Taylor is more fully considered below.

[38] D.N. then cupped his hands over K.B.’s ears and applied pressure, he slapped her with his hands, he choked her with his hands, he grabbed her by the face under the chin causing her dental appliance to pierce her cheek, he grabbed her hair again, and he pushed her around. It was K.B.’s evidence that she did not fight back because she did not want to aggravate him any more than he already was. K.B. did not call out for help because she knew that there was no one home upstairs and as a result, no one would hear her. K.B. estimated that the conduct continued for a couple of hours or maybe less, but that it felt like forever.

[39] According to K.B., D.N. calmed down after some time.

[40] D.N. then went into K.B.’s bedroom, got in bed, and told K.B. to come to bed. K.B. testified that she complied out of fear. K.B. said that she was “scared, “sore”, “tired”, and worked up trying to figure out if “this was surreal”. The reliability of this evidence is more fully considered below.

d) The sexual assault

[41] Once in the bedroom, D.N. fell asleep in something less than an hour. After D.N. fell asleep, K.B. went to the bathroom to look at herself in the mirror. Although she did not turn the light on, there was enough light from the window for K.B. to see that her face was swollen and bruised and that there was blood from the puncture wound to her cheek. After a minute or two, K.B. went to the living room.

[42] It was her evidence that she stayed in the house because she had nowhere else to go. K.B. also testified that she did not know where her cell phone was, and she was worried that if she left the house, her son would come home and be alone with D.N. She was afraid of what might happen to her son.

[43] After some time D.N. woke up again. He ordered K.B. back to bed and she complied. K.B. said that she was “scared” and that she “lied there all night trying to cry without making noise”.

[44] There was some suggestion by the defence that K.B. may have actually first gone to the living room and then after D.N. was asleep returned to her own bed where he was sleeping without D.N. having told her to do so. That evidence is more fully considered below.

[45] In any event, according to K.B., D.N. woke up the next morning and took her head and put it to his penis. He was quiet and she did not say anything. K.B. said that she knew what he wanted because D.N. liked to have sex in the morning and in the past their sex had often begun in this way.

[46] K.B. said that she just wanted to get it over with and get him out of her house so she “sucked his penis until it got hard”. D.N. then turned K.B. to her back, got on top of her, and had vaginal sex with her. D.N. continued until he ejaculated inside K.B.

[47] It was K.B.’s evidence that this was not something that she wanted to do. K.B. however acknowledged that she did not communicate that verbally.

[48] Once the sex was over K.B. went to the kitchen and made coffee. The two drank the coffee and smoked some marijuana together. D.N. then got dressed and left. That was about one and a half to two hours after the two had had sex. On the way out D.N. said that he “loved” K.B., but made no effort to apologize. K.B. did not say anything to D.N. because she did not want him to start all over again.

[49] K.B. then stripped the bed, changed into her “Mickey Mouse jeans”, and sat on her porch having a cigarette. The Mickey Mouse jeans are further considered below. Her friend Mr. Taylor happened by. K.B. said to Mr. Taylor “I took shots for you”. K.B. explained that by that she meant that she had taken punches for Mr. Taylor. Mr. Taylor told her that if she did not report the matter to the police he would turn his back on her. As a result, K.B. called 911.

[50] Constable Burke was the first to arrive. K.B. testified that Constable Burke brought her to the Sexual Assault Crisis Centre at Metropolitan Hospital.

[51] K.B. was examined and photographed and a sexual assault evidence kit including vaginal swabs was completed.

[52] The results of the testing of those vaginal swabs are contained in Exhibit 1, which is referred to above.

e) The injuries

[53] K.B. testified to a foot injury, a knee injury, swollen eyes, a hoarse voice from being choked, ears that felt like they were “on fire”, and ribs on her right side that were hurting. The photographs in exhibit “A” depicts two black eyes, bruising to the chin, a bruised lower lip, and bruising on both arms, both legs, her torso, and behind her ears. K.B.’s hearing was impaired for several months after the fact as a result of her injuries. There were also a number of abrasions. K.B. identified herself as being the individual in each of the pictures, identified each of the injuries as having been to herself, and identified each of the injuries as having been inflicted by D.N. on the night in question.

[54] Ms. Porto also gave evidence as to the injuries that she had observed on K.B. at the Sexual Assault Treatment Centre. They included,

• right upper arm bruising;
• petechiae and bruising to much of the centre and right neck – painful;
• scattered numerous bruises with scratched areas to the left torso;
• left buttock bruising;
• right upper back bruising;
• right elbow bruising;
• right posterior ear bruising;
• bruising to pinna and earlobes;
• scattered large and small red and purple bruising along interior left arm;
• left ear bruising;
• right eye conjunctival redness, bruising, and edema;
• right cheek bruising and edema;
• right temple bruising;
• left eye bruising, edema and redness;
• upper and lower oral mucosa, bruising, painful, with punctures x 3;
• left chin and frontal chin area bruised, edematus, painful, with the puncture wound on the underside of the chin area;
• posterior scalp, raised painful redness areas x 3.

[55] Constable Burke gave a similar description of K.B.’s injuries.

[56] K.B. received treatment from various medical specialists in the months following the incident.

[57] She continues to suffer the effects of her injuries today. When she turns a particular way K.B. feels like she is “frozen” or “in labour”. She continues to have headaches.

[58] K.B. also continues to suffer from depression and post-traumatic stress disorder. To be clear, both of those conditions pre-existed these particular injuries but, according to K.B., they were exacerbated by the injuries received on July 6, 2008. K.B. continues with treatment through the sexual assault treatment centre for these conditions.

f) The events of June 8, 2008

[59] I reiterate that in cross-examination the defence questioned K.B. about the June 8 breakup between her and D.N.

[60] Defence counsel suggested that it may have been D.N. who brought an end to the relationship because he had had enough of her drug and alcohol use. K.B. acknowledged that D.N. may have said that to her on June 8.

[61] Defence counsel also inquired about the events which occurred on June 8 at the “Airport Motel”.

[62] K.B. explained that she had taken a cab to the Airport Motel to get away from D.N. She had called the police to report bruising in her chest area from where D.N. had been poking her earlier that day. K.B. also testified that this was not the first instance of physical contact between them during the course of the relationship.

[63] Although the police came and talked to K.B., charges were not laid. K.B. refused the offer for medical assistance made by the police officers at that time. She did however go to Hiatus House as was suggested by them. Hiatus House is a temporary shelter for battered women. Unfortunately K.B. was refused admission because she did not have her medications with her.

[64] K.B. acknowledged that she had been drinking that day. She also acknowledged that she had had enough that she could not pass a breathalyzer test.

[65] Prior to leaving this issue I would like to comment on the use to which I put this evidence.

[66] The defence introduced this evidence as well as evidence of a prior conviction of the accused for assaulting the complainant and a breach of a non-association order in relation to that conviction in order to demonstrate the complainant’s animus toward the accused. The defence introduced the evidence to support the proposition that K.B.’s assault had been administered by an unknown third party and that K.B. had attempted to “pin” the assault on D.N. in an effort to get back at him because the police had not laid charges after the June 8 incident.

[67] The Crown asked that I rely upon that evidence as part of the narrative. I make the following observations as to the caution which must be exercised in using such evidence as part of the narrative.

[68] Narrative may be used to give background to the story, to provide chronological cohesion, and to eliminate gaps which would divert the mind of the listener from the central issue. It may be supportive of the central allegation in the sense of creating a logical framework for its presentation. It however cannot be used as confirmation of the truthfulness of the sworn allegation: see R. v. J.E.F. (1993), 16 O.R. (3d) 1 (C.A.), at pp. 18-19.

[69] At para. 106 of the decision R. v. Taweel, 2015 NSCA 107, 367 N.S.R. (2d) 208, the Nova Scotia Court of Appeal adopts the following quote from Christopher Nowlin’s analysis in “Narrative Evidence: A Wolf in Sheep’s Clothing”, Part I (2006) 51 C.L.Q. 238; and Part II (2006) 51 C.L.Q. 271: “The idea that evidence can be admitted because it forms part of the ‘narrative’ or part of the story is a potentially dangerous one.”

[70] At para. 107 the following is quoted from the same source

...“narrative” evidence should be restricted to evidence that fills in chronological gaps in the Crown’s case. It should enable the trier of fact to understand why, from a purely chronological perspective, one germane event follows from another.

[71] Accordingly, evidence relevant to a relationship that in the end is only relevant to demonstrate that the accused is the type of person likely to have committed the offence is inadmissible: see R. v. Albert (1993), 12 O.R. (3d) 668 (C.A.), at p. 672.

[72] For these reasons I approach the Crown’s request with a great deal of caution.

[73] In this case the Crown maintains that the conduct sought to be introduced is so closely and inextricably mixed up with the history of the guilty act itself as to form part of one “chain of relevant circumstances”, such that, without the evidence, the case would be unintelligible: see R. v. Bond, [1906] 2 K.B. 389. It follows that the onus is upon the Crown to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception: see R. v. Handy, 2002 SCC 56, 2002 SCC 96, [2002] 2 S.C.R. 908, at para. 55; and R. v. L.B. (1997), 35 O.R. (3d) (C.A.), at p. 43.

[74] I find that the Crown satisfied the onus upon it in that regard.

[75] As was observed by Hill J. at para. 31 of R. v. S.B., [1996] O.J. No. 1187 (Gen. Div.), violence in the domestic context necessarily involves the complex dynamics and subtleties of the personalities of the individuals within the context of their individual and shared experiences, roles, and emotions. While on one hand admission of mere narrative can be abused, denying the trier of fact complete information runs the risk of presenting “an entirely sterile and antiseptic record devoid of the realities of the individual circumstances of the participants”: see R. v. S.B., at para. 32.

[76] Accordingly, notwithstanding this evidence may otherwise be inadmissible because it potentially relates to discredible conduct, I find it admissible as part of the narrative in the context of abusive behaviour in a domestic setting: see R. v. D.S.F. (1999), 43 O.R. (3d) 609 (C.A.), at pp. 616-17; R. v. Summerbell, [1996] O.J. 795 (C.A.); R. v. MacDonald (1974), 20 C.C.C. (2d) 144 (Ont. C.A.); R. v. Pheasant (1995), 47 C.R. (4th) 47 (Ont. Gen. Div.); and R. v. S.B. I find the evidence important to put the complainant’s evidence supporting the charges in the context of the overall relationship. That is because the evidence relates to an attitude and behaviour and excluding that evidence would leave the trier of fact with an incomplete and possibly misleading impression of the relationship: see D.S.F., at p. 616; R. v. MacDonald, at para. 35; R. v. D.S.F., at pp. 615-18; and R. v. S.B., at paras. 26-56.

[77] Prior to leaving the issue I would like to make it abundantly clear that I am aware that bad character is not an offence known to the law: see Handy, at para. 72. Accordingly, and notwithstanding that the evidence was introduced by the defence, I did not use it for that purpose or any other purpose than a description of the narrative. That is because I am aware of the evidence as to the events of June 8 and D.N.’s prior convictions for assaulting K.B. and for breach of a non-association order are somewhat prejudicial from the standpoint that they tend to paint the accused as a “bad person”.

2) The defence evidence

[78] D.N. was the only witness called by the defence.

[79] As can be observed from his evidence below, unlike K.B., D.N. professed a very vivid memory of the events that occurred during the relevant timeframe. He purported to recall significant detail as to matters such as time of day and what he had watched on television. That memory is further considered below in the context of the quality of D.N.’s evidence.

[80] D.N. said that he loved K.B. and that he had feelings for her son. Although he had never become a father figure to her son, he did spend time with him, often feeding him and sometimes taking him places.

[81] D.N. agreed with K.B.’s evidence that the relationship had ended on June 8, 2008. It was his evidence however that he had ended the relationship because of K.B.’s drinking and drug use. According to D.N., he woke up the morning of June 8, saw K.B. drinking an already opened beer that had been put back in the fridge, and told her, “I am out of here”. D.N. denied that there had been any other interaction with K.B. that day. He also denied having had the physical contact with K.B. which K.B. testified had resulted in bruising to her chest.

[82] In examination-in-chief D.N. initially stated that as of June 8 he “did not care about” K.B. anymore. His evidence regarding this issue morphed throughout cross-examination. The issue is considered further below in the context of D.N.’s credibility.

[83] In any event, in examination-in-chief, D.N. testified that he had moved into the garage of his friend, Jamie, on June 8 after the breakup. Jamie lives in Windsor, Ontario. He explained that the garage had been fixed up or converted to a living space. It was not clear whether that evidence was correct or not. That is because in cross-examination, D.N. testified that he had moved to Jamie’s house directly from his sister’s house at an unspecified point in time. This issue is more fully considered below.

[84] According to D.N., he did not see K.B. again until July 3. On that day he had stopped over briefly to thank her for not interfering with his probation by “making something up”. It was D.N.’s evidence that K.B. had done so in the past when he had been convicted of breach of a non-association probation order related to a prior assault of K.B.

[85] D.N. testified that the next time he saw K.B. was the morning of July 5 between 10:00 a.m. and 10:30 a.m. He had stopped by to make arrangements to pick up his nephew’s dog. According to D.N., shortly after he arrived K.B.’s mother came to visit. According to D.N., she would come over regularly to give K.B. money. D.N. denied that K.B.’s mother had been involved in brokering the transfer of the dog. According to D.N. the practice was that he would hide whenever K.B.’s mother came over so that she would not be aware of his presence. The reason for hiding was that K.B.’s mother would not give K.B. money if she knew that D.N. was there. That is because K.B.’s mother would expect D.N. to help financially. K.B.’s mother stayed for approximately 10 minutes.

[86] After K.B.’s mother left, K.B. gave D.N. some money and asked him to go to the beer store to buy six “Carling tall boys”. He complied.

[87] D.N. said that he returned to the house from the beer store at about 10:00 a.m. to 11:00 a.m. When he arrived, K.B. opened a beer and then spontaneously and without prompting asked D.N. if he wanted a “quickie”. D.N. responded that he did. The two went to the bedroom where according to D.N., K.B. gave him a “blow job” followed by vaginal sex.

[88] D.N. and K.B. then had a “quick beer and smoked a joint” and D.N. left for work.

[89] D.N. recalled having finished work at about 3:30 p.m. that day.

[90] D.N. also recalled that his friend Jamie returned home at about 4:00 p.m. to 5:00 p.m. After Jamie returned, he and D.N. drank beer. D.N. expressed a specific recollection of having consumed precisely one beer. In cross-examination, D.N. also initially stated that he recalled having gone to the neighbours and having a conversation, having showered, and having changed clothes.

[91] At about 6:30 p.m. to 7:00 p.m., D.N. and Jamie returned to K.B.’s house in Jamie’s pickup truck. According to D.N., he did not have a key to the house. As a result he called K.B.’s mother to ask for instructions. According to D.N., K.B.’s mother advised him that the door was unlocked and that he could go in the house to retrieve the dog and all of its belongings.

[92] D.N. and Jamie then returned to Jamie’s house.

[93] D.N. first got the dog settled, and then he and Jamie watched a NASCAR race. He testified the race began at approximately 8:30 p.m. to 9:00 p.m. and ended at around 12:00 a.m. to 12:30 a.m. Later in cross-examination, D.N. said that he had left Jamie’s house at about 11:30 p.m. to 11:45 p.m.

[94] D.N. professed to recall the time, location, and winner of the race he and Jamie had watched that night. That evidence is more fully considered below in the context of D.N.’s credibility. While watching the race, D.N. consumed another five or six beers. So including the beer that D.N. says he drank with K.B. that morning, and the beer that he says he drank at around 4:00 p.m., D.N. acknowledged having consumed seven to eight beers on July 5.

[95] D.N. then testified as to his whereabouts during the timeframe the events underlying these charges are alleged to have occurred. It was his evidence that his friend Jamie had a neighbour by the name of Pat. Pat had a daughter, Lisa, who had asked D.N. to babysit at her house, which is located in the Fountain Blue subdivision. That is approximately a 10-minute bicycle ride from Jamie’s house.

[96] Of interest, D.N. said that he recalled having taken a change of clothes with him to Lisa’s house because he did not have a shower at Jamie’s. I reiterate that earlier in cross-examination, D.N. expressed a definitive recollection of having showered at Jamie’s prior to going to K.B.’s.

[97] D.N. said that he did not meet anyone on his way to Lisa’s home or while he was there.

[98] D.N. acknowledged K.B.’s evidence to the effect that the two had seen each other at a McDonald’s between the time these events are alleged to have occurred and the date of trial. D.N. testified that he did not want to see K.B. or have a confrontation with her and so he left right away.

[99] Finally, D.N. testified that he was “shocked” when he was arrested in relation to these charges. According to D.N., he had no idea the charges existed prior to his arrest. D.N. steadfastly denied that he had assaulted K.B. on July 6 or that he had sex with K.B. on July 6.

C. Analysis

1) Introduction

[100] In the end I was left with two versions of events.

[101] The Crown maintains that D.N. entered K.B.’s home after she was asleep on the evening of July 5, pulled her from her bed possibly by the hair, choked her, and physically assaulted her. The Crown also maintains that D.N. slept at K.B.’s home that night and that on the morning of July 6 they had sex, which K.B. only participated in out of fear and therefore did not consent to.

[102] I reiterate that there are two components to the theory of the defence. The first is that D.N.’s DNA was found in K.B. because they had consensual sex on the morning or early afternoon of July 5. The second component is that K.B.’s assault had been administered by an unknown third party and that she was so angry that the police had not charged D.N. with assault on June 8 that she blamed D.N. for the July 6 assault to exact revenge.

[103] These two versions of events are irreconcilable and as a result both cannot possibly be true.

[104] That is not to suggest that this is a contest between which of those two version of events is more likely true. While it is impossible for both to be true, it is also possible that neither is true. In other words, this is not an either/or analysis: see R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 42.

[105] Rather, the issue is whether or not the Crown has proven each element of the three offences with which D.N. has been charged beyond a reasonable doubt.

2) The core issues

[106] The defence concedes that K.B. was assaulted by someone. Defence counsel acknowledged that in his words K.B. had been “severely beaten”. As a result, the central issue as to the charge of assault was whether or not it was D.N. who assaulted K.B. and, if so, whether she consented to the assault or whether it was so serious that she could not have consented.

[107] Similarly, the defence concedes that D.N.’s DNA was found in K.B.’s vagina. I reiterate the defence position is that the DNA was deposited during consensual sex on the morning of July 5 rather than on July 6 after K.B. had been assaulted. As a result, the central issues as to the charge of sexual assault are whether or not D.N. had sex with K.B. on July 5 and/or July 6, and if they had sex on July 6, whether or not she consented to that sex.

3) The legal principles

[108] As was observed by defence counsel, there is no obligation for the accused to prove anything. It is the Crown who has the obligation of proving each element of the offence beyond a reasonable doubt.

[109] A reasonable doubt is one that logically arises from the evidence, or the lack of evidence. Proof beyond a reasonable doubt is proof more than proof of probable guilt. However, a reasonable doubt is not a far-fetched or frivolous doubt. Nor is it a doubt based on sympathy. It is a doubt based on reason and common sense. To be clear, it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so: see R v. Lifchus, [1997] 3 S.C.R. 320, at para. 36.

[110] However, once an accused takes the stand, the evidence of the accused must be considered along with all the other evidence presented at trial. The proper approach in analyzing that evidence was set out as follows at p. 758 of the Supreme Court’s decision in R. v. W. (D.), [1991] 1 S.C.R. 742:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[111] The decision in W. (D.) does not describe three sequential analytical steps, but rather three distinct finding of facts that the trier of fact can arrive at when considering all of the evidence at the end of the case; namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”): see R. v. Thomas, 2012 ONSC 6653, at para. 23; and R. v. Edwards, 2012 ONSC 3373, 93 C.R. (6th) 387, at paras. 13-25. Accordingly, where there are credibility findings to be made on a vital issue, it is not necessary for the trier of fact to believe the defence evidence as to that issue in order to acquit; rather, it is sufficient if that evidence, viewed in the context of all of the evidence, leaves the trier of fact in a state of reasonable doubt as to the accused’s guilt: see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.

4) The quality of the evidence

a) The evidence of D.K.N

[112] I did not believe D.N. and I did not find D.N. to be a credible witness.

D.N.’s memory

[113] I reiterate that D.N.’s evidence as to his memory of the events in question was the opposite of that of K.B. D.N. professed time and time again to have a vivid recollection of the events in his life which occurred almost nine years ago on July 5 and 6 of 2008. That included details as to things such as time of day and what he watched on television.

[114] I did not believe D.N.’s assertion that he recalled details of the events of those days with the clarity he professed. There are several reasons for that conclusion. The first is that according to D.N.’s version of the facts, nothing eventful happened during that timeframe. In other words there was no reason for D.N. to remember things with the detail with which he professed to remember them. The second is that I found that his memory was one of convenience. Finally, I found his evidence internally inconsistent as to matters he professed to recall.

[115] The following are examples of those observations.

[116] The first is that D.N. expressed certainty that he had not seen K.B. at all between 2001 and 2006. Crown counsel pointed out that D.N. had been convicted of assaulting K.B. and with failing to comply with a non-association probation term in relation to her in 2003. D.N. then agreed that he had seen K.B. between 2001 and 2006. To be clear, nothing turned on whether they had seen each other between 2001 and 2006. The only reason I found this evidence relevant was in relation to D.N.’s professed detailed memory of the events of July 5, 2008. D.N.’s inability to recall having associated with K.B. during that five-year period stands in stark contrast to D.N.’s evidence as to his professed ability to recall precise details of events which occurred on July 5 and 6, 2008.

[117] The second is that early in his testimony, D.N. professed a specific recollection of having showered shortly after he arrived at his friend Jamie’s house in the late afternoon of June 5. Late in his cross-examination, D.N. testified as to the specifics of his bicycle trip to Lisa’s house. I reiterate that D.N. maintains that he could not have assaulted K.B. because during the relevant timeframe he was riding his bicycle to and staying at Lisa’s house. This evidence was a central feature of D.N.’s version of events. D.N. specifically recalled having brought a change of clothes. The explanation was that he had not yet showered that day. However, as said above, D.N. earlier in cross-examination expressed a specific recollection of what had occurred at his friend Jamie’s house earlier that evening. That recollection included D.N. having had a shower at Jamie’s house. This obvious discrepancy again stands in stark contrast to D.N.’s assertion as to a detailed and precise recollection of the events of July 5, 2008. In addition, it tends to support my conclusion that D.N. was making up much of what he said happened on July 5 as he went along in an effort to put distance between himself and the events underlying these charges.

[118] The third example is that in examination-in-chief, D.N. testified that he had moved into his friend Jamie’s house after the June 8 incident. I was left with the impression that he had moved directly from K.B.’s house to Jamie’s. In cross-examination, that proposition morphed. He then said that in the timeframe preceding June 8 he had actually been living at his sister’s house in Belle River. I found those two propositions irreconcilable. Again, nothing turns on where D.N. was living. The point I am making is that D.N.’s inability to even recall where he was living on June 8 stands in stark contrast to his professed hour-by-hour recollection of the events of July 5.

[119] The forth is when D.N. in cross-examination testified with certainty that the NASCAR race which he and Jamie had watched on TV on July 5 was held at the Brickyard in Bristol Tennessee. The Crown told D.N. that he had gone on the Internet and determined that the race that day had been the Coke 400 at Daytona. D.N. confessed that the Crown may be right. D.N. then professed a specific recollection of who had won the race. D.N. professed to recall that it was Kevin Harwich. Again the Crown suggested that according to the Internet it had been Kyle Busch. Again D.N. conceded that the Crown may be correct. To be clear, it does not matter whether the Crown was correct, and it doesn’t matter where the race was run, or who won the race. What matters is that D.N. professed a specific recollection that, when pressed, he admitted he did not have. I found that D.N. had deliberately misrepresented that recollection to the court in an effort to convince the court that he recalled other minutia within the relevant timeframe that were critical to his version of events.

[120] In conclusion, I did not believe D.N. when he testified as to a detailed and precise recollection of the events of July 5, 2008. Nor did I believe that many of the facts that D.N. purported to recall actually occurred. I concluded that much of what D.N. said about July 5, 2008 was simply made up as he went along.

The lack of harmony between D.N.’s evidence and his own evidence, the preponderance of evidence, and common sense

[121] I also found D.N.’s evidence internally inconsistent, and inconsistent with the preponderance of evidence at trial that I accepted. In addition I found that D.N.’s evidence often lacked common sense as to pivotal issues.

[122] The following are examples of some of the deficiencies in D.N.’s evidence which, when considered in the context of the totality of the evidence, I found fatal to his credibility.

[123] The first example relates to the June 8 breakup. In cross-examination, D.N. initially testified that he woke up that morning and observed K.B. drinking already open beers that had been put back in the fridge, presumably the night before. According to D.N., he told her that he was “out of here” because he had enough of her drinking. In other words, the termination of the relationship had been instigated by him and that event had been mundane and uneventful. D.N. also said that as a result of her alcohol use, as of June 8, 2008 he did not care about K.B. anymore. That assertion was a central plank of D.N.’s version of events. I found that evidence lacks harmony with the preponderance of evidence for several fundamental reasons.

[124] One reason it is that, as Crown counsel pointed out to D.N., he claimed to have had consensual sex with K.B. on July 5, and that consensual sex was inconsistent with an individual who had no feelings whatsoever for K.B. Once the apparent contradiction was obvious to D.N., his evidence significantly morphed and he then said that he was still in love with K.B., notwithstanding the breakup. I reiterate that as D.N. continued to consider the question, his answer went back and forth between not being in love, and then once again being in love. I concluded that D.N. was attempting to calculate which version of his feelings would be more beneficial to the proposition he was putting forth. When considered in the context of D.N.’s claim to an excellent memory, I found his waffling as to a simple issue such as his feelings for K.B. as of June 2008 consistent with a memory of convenience.

[125] Another reason is that once D.N. finally agreed that he still cared about K.B. and loved her, the Crown suggested that D.N. had left K.B. because he did not want her “falling into the funnel of alcoholism”. D.N. agreed. Crown Counsel questioned why if D.N. had left K.B. because of her drinking, and did not want her “falling into the funnel of alcoholism”, he would have willingly gone to the beer store on July 5 and purchased beer for her. D.N. did not resolve this obvious conflict in any meaningful way. It defies common sense that D.N. would have purchased alcohol for K.B. if the rest of his evidence as to his feelings for her and the reason for the breakup were true. Simply put, I did not believe D.N. when he testified that the June 8 breakup was a mundane and uneventful declaration by him that he was leaving K.B. as a result of her alcohol use.

[126] Another reason is that D.N.’s version of events lacks harmony with K.B. having left her own home to seek refuge at a motel, her report of an assault earlier that day to the police, and the police recommendation that she spend the night at Hiatus House, which as said above is a temporary shelter for battered women. I believe that evidence from K.B.

[127] In the end I concluded that the June 8 breakup was to a significant extent the result of the violence that D.N. had visited upon K.B. that day. That conclusion find support in D.N.’s own evidence to the effect that he attended K.B.’s residence on July 3, 2008 for the sole purpose of thanking her for not “messing up his probation”.

[128] Importantly, I also find that D.N. deliberately misrepresented the circumstances of the June 8 breakup in order to explain his assertion that he and K.B. had had consensual sex on July 5, 2008.

[129] The second example is that D.N. testified that K.B.’s crack cocaine habit was such that she did not have enough money to complete an anticipated move out of town. I found that evidence difficult to reconcile with his evidence that K.B. had regularly paid the $40 cab fare to get D.N. to and from his sister’s house in Belle River. I also found that proposition difficult to reconcile with his evidence that K.B. had paid for everything whenever the two were together, including housing, food, alcohol and the like.

[130] The third example is that in cross-examination, D.N. did his utmost to leave the impression that he had never actually moved into K.B.’s house. For example he denied that he had a toothbrush or a change of clothes at K.B.’s house. His explanation for the toothbrush was that there were several abscesses in his mouth and that he had to be careful brushing his teeth and so seldom did so. D.N. left the impression that whenever his teeth needed brushing, or he needed a change of underwear or other clothing, he would return to his sisters. That would require him to either arrange transportation through his sister or have K.B. pay for the $40 cab fare in each direction. That is an $80 price tag to return to Belle River to brush his teeth and change his clothes. I found that proposition defied common sense. To be clear, I am aware that D.N.’s evidence did morph somewhat once he comprehended the absurdity of the proposition he was putting forth. In conclusion, it does not matter whether D.N. ever brushed his teeth. What matters is the absurdity and inconsistency of his evidence in relation to simple straightforward questions such as this. I found that pattern consistent with an individual who was manufacturing evidence to suit what he perceived to be his needs at trial.

[131] As a fourth example D.N. initially denied having an alcohol problem. When the Crown put an alcohol related probation breech to D.N., he ultimately acknowledged that he did have a problem. I find that D.N. clearly misrepresented the answer to a very clear question. I am not suggesting that an alcohol problem makes D.N. any more likely to have committed the offences in question. I am only stating that his misrepresentation of the truth on such a simple issue negatively impacted his credibility.

[132] Also related to D.N.’s alcohol consumption is his acknowledgement of having consumed seven to eight beers on July 5 up to and including around midnight. To put that in perspective, he finished drinking shortly before when K.B. says that D.N. woke her up by pulling her hair. D.N. denied feeling any effects of that alcohol whatsoever. He said that he is five feet, eight inches tall and weighs 185 pounds. To be blunt, I have difficulty with the proposition that a person of D.N.’s size would feel nothing after consuming seven or eight beers through the course of the day, with five to six of those beers having been consumed within a three- to four-hour timeframe. I reiterate that D.N. had also began the day by “smoking a joint”. This is another example of evidence from D.N. that simply defies common sense.

[133] The fifth example is D.N.’s avoidance of K.B. and her son after the relevant timeframe. He did not make any attempt to text, email or have any contact whatsoever with either K.B. or her son subsequent to the relevant timeframe. Further, D.N. confirmed that he had seen K.B. at a McDonald’s between the relevant timeframe and the date of trial. It was his evidence that he did not want to see her or have a confrontation with her. As a result he left the McDonald’s right away. To be blunt, that evidence lacks harmony with D.N.’s evidence that on the last occasion they had seen each other they had consensual sex. Common sense dictates that if they parted on good terms, there would be nothing to have a confrontation over. Common sense also dictates that if the relationship had ended on such a tender note, K.B. would have been happy to see D.N. and not confrontational.

[134] To be clear, I am aware that there are at least two potential uses for the evidence of what D.N. did or did not do after the fact. One potential use is to demonstrate a guilty mind. There was no after-the-fact conduct application and so I made it clear to counsel at trial that I would not consider the evidence for that purpose. I have not done so. The other purpose is to impugn the accused’s credibility. As said above, I have used it for that purpose and that purpose only: see R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 39; R. v. White, [1998] 2 S.C.R. 72, at para. 26.

[135] The sixth example is that D.N. testified that when he and his friend Jamie returned to K.B.’s house to pick up the dog, there was no one home. D.N. said that he did not have a key and as a result he had called K.B.’s mother, who told him the door was unlocked. I find this scenario lacks harmony with D.N.’s evidence to the effect that he had had consensual sex with K.B. earlier that day and that K.B.’s mother was not involved in brokering the pickup of the dog. If the relationship was such that D.N. and K.B. had sex only a few hours before, it seems to me that D.N. would have contacted K.B. directly if he did not have a key. To the contrary, I find D.N.’s evidence that he contacted K.B.’s mother consistent with K.B.’s evidence that she had involved her mother in the dog transfer.

Conclusions as to the evidence of D.N.

[136] In conclusion, pursuant to the analytical framework set out in W. (D.), I did not believe the evidence of the accused, and that evidence, when viewed in the context of all the evidence, does not leave me in a state of reasonable doubt as to the accused’s guilt. Next, I must consider the extent of the Crown evidence I do accept, and whether on the basis of that evidence I am satisfied beyond a reasonable doubt of the guilt of the accused.

b) The evidence of K.B.

Introduction

[137] I begin by agreeing with defence counsel’s observation that K.B.’s evidence suffered from significant frailties.

[138] K.B. was clearly a poor historian and she knew it. I say that because both at trial and at the preliminary inquiry she regularly acknowledged an inability to recall details and peripheral facts in relation to the relevant timeframe. K.B. often prefaced her answers to questions by stating that her memory may not be correct as to her answers, and she often acknowledged that other possible scenarios put forth by the defence may be correct.

[139] I however also agree with the Crown proposition that the credibility and evidence of every witness must be assessed by reference to criteria appropriate to his or her mental development, understanding, and ability to communicate: see R. v. O.M., at para. 51; R. v. W.(R.), [1992] 2 S.C.R. 122, p. 134.

[140] In this case, K.B. attributed her inability to recall such details to several factors. One factor was the significant amount of time which had passed between July 6, 2008, when the offences are alleged to have occurred, and the date of trial. Another is her significant problems with alcohol and drug use, including in the past having smoked crack cocaine and both then and now being a regular user of marijuana.

[141] I find that the combination of these factors explains her inability to recall peripheral facts and details as at the time of trial, and as a result I find that the resulting impact upon the quality of her evidence relates to reliability rather than credibility.

[142] To that I would add that I found that the frailties in K.B.’s memory were not a product of a memory of convenience. I say that because K.B.’s poor memory applied equally to matters that would have been of assistance to her. For example in cross-examination defence counsel suggested that K.B.’s mother had come over while D.N. was at her house on July 5. K.B. candidly acknowledged she could not remember. Defence counsel asked if D.N. had at K.B.’s request gone to the downtown beer store and bought her six “Carling tall boys”. Again K.B. said that she could not recall but that it could have happened that way. It would have been easy for K.B. to simply deny these things happened but she did not. Again, I find these frailties related to reliability rather than credibility.

[143] Notwithstanding those shortcomings in her evidence as to peripheral facts and details, there was no suggestion that her evidence as to what happened to her on July 6, 2008, or who had done it to her, suffered from similar frailties. There was no evidence as to discrepancies between what she said at trial and what she told the police, or Ms. Porto, or what she said in her video interview, or what she said at the preliminary inquiry. Further, I found her evidence at trial as to what happened to her and who had done it to her to be clear, cogent, and unequivocal.

[144] As a result I was left with no reasonable doubt as to what it happened to K.B. and who had done it to her when I considered that evidence in the context of the totality of the evidence at trial, including without limitation the frailties in her evidence and the evidence of D.N.

[145] As to the impact of the frailties in K.B.’s evidence raised by defence counsel either in cross-examination and/or in argument, I make the following observations.

Memory related examples of frailties in K.B.’s evidence

[146] The first is that K.B. testified that the relationship began on Thanksgiving of 2000 or 2001. In her video statement K.B. said that the relationship had begun in the summer of 2001. I make the following observations about such discrepancies. They met 17 years ago. That was a long time ago. Further, nothing turned on the issue of precisely when they had met. K.B. was asked to explain this and other similar discrepancies. I reiterate she candidly acknowledged that her memory is not good. She also candidly acknowledged that the answers about peripheral matters such as this that she gave closer to the time of those events were more likely to be correct than her memory today. In her words, K.B. was going upon “recall” at the time of trial. I reiterate that was in stark contrast to D.N. Discrepancies in his evidence were necessarily considered in the context of his professed excellent and detailed memory.

[147] The second example is that K.B. testified in chief that she could not recall what she was wearing during the incident. At the preliminary inquiry K.B. had testified “I think I was wearing – I think I was wearing a T-shirt or maybe a nightgown, I think”. I find the difference between what she said at trial and what she said at the preliminary inquiry to be a distinction without a difference. It was clear that K.B.’s evidence at the preliminary inquiry was nothing more than a guess. She used the words “I think” three times during that very short response. In other words, K.B. did not know with any certainty what she was wearing either when she testified at the preliminary inquiry or at trial.

[148] The third is that K.B. testified at trial that D.N. had pulled her from the bed by her hair. In her video interview K.B. had left the impression that he may have pulled her out of bed by something other than her hair. Again, I find that not much turns on that distinction. There are several reasons for this. The first is that K.B. candidly acknowledged her lack of certainty. In cross-examination, K.B. said that she is “pretty sure” that he pulled her out of bed by the hair. In other words, K.B. again acknowledged a lack of certainty. The second is that several clumps of K.B.’s hair where clearly pulled out. Constable Burke testified as to “bald spots” on K.B.’s scalp where hair had been pulled out. Ms. Porto also testified to three such locations on K.B.’s scalp. I do not find it surprising that nine years later K.B.’s memory would be frail as to precisely when that hair had been pulled from her head during a sequence of events which she estimated may have continued for as long as two hours.

[149] The fourth is that K.B. testified that there was a puncture wound to her cheek as a result of D.N. having squeezed it against a dental appliance. Defence counsel pointed out to K.B. that she told the police that the puncture had occurred when D.N. struck her mouth. Again, I find this to be a distinction without a difference. I make the following observations in that regard. One is that K.B. candidly acknowledged that either answer could have been correct. I find that the bruising on K.B.’s face supports that evidence. Another observation is that both answers are potentially correct. I say that because Ms. Porto found three puncture wounds on the inside of K.B.’s mouth. One or more could have been caused by the squeezing and the other or others caused by the striking blow. Another observation is that both answers were clearly conjecture on K.B.’s part. I reiterate that K.B. said time and time again that she could not remember such details.

[150] The fifth is that K.B. testified in chief that much of the violence had taken place in the dining room. When questioned in cross-examination about whether any occurred in the bedroom, K.B. said “not to my knowledge”. Defence counsel pointed out that K.B. had left Constable Burke with the impression that much of the violence had taken place in the bedroom. I make the following observations about that apparent discrepancy. One observation is that Constable Jones testified that there was blood on the bed sheets. Similarly, Constable Burke testified as to an observation that the bed mattress was askew. In other words, some of the violence may well have taken place in the bedroom and K.B. may not have remembered that by the time of trial. Consistent with that observation, K.B.’s recollection in cross-examination that there had been no violence in the bedroom was qualified. Her uncertainty was made clear as it so often was throughout her testimony as to peripheral facts and details.

[151] The sixth is that in examination-in-chief, K.B. testified that D.N. had gone to bed first and then summoned her to bed in a forceful manner. Defence counsel read his own notes as to observations he had made regarding the July 7 video statement in that regard. He suggested that K.B. had then said that she had gone to the living room and laid on a mattress. After some time she heard D.N. begin to snore, and she went and joined him in her bed. I make the following observations as to that apparent discrepancy. One is that K.B. acknowledged having said that in her video statement. K.B. explained that if her evidence in the video statement differed from that at trial, then her video statement would be correct. She explained that is because she is now going “on recall”, and the video statement was made closer to the events she was attempting to recall. I found that proposition logical. Another observation is that for reasons that were not entirely clear, I did not see that portion of the video statement, or a transcript of the video statement, and accordingly did not have context for that particular answer. Another observation is that K.B. had also said in chief that she had gone into the living room after having left the bathroom. In both scenarios she had been in both the bedroom and in the living room. In other words, K.B.’s evidence was consistent as to what rooms she had been in that night. The inconsistencies were as to the precise sequence, and whether she had gone to the bedroom because D.N. had summoned her to that room or, in the alternative, whether she had gone to the bedroom on her own, out of fear for what might happen if she was not beside D.N. when he woke up the following morning as she suggested in cross-examination. I did not find that these discrepancies significantly impacted K.B.’s evidence, given their minimal nature, and the fact that they arose in the context of K.B. saying again and again that she was having a great deal of difficulty remembering peripheral facts and details.

[152] The seventh is that K.B. professed a recollection that she had stripped the bed, put the bedding on the basement floor, and changed into her “Mickey Mouse jeans”. She said that occurred after D.N. left the house and before Mr. Taylor had happened by. The photographs of K.B.’s basement confirm that there was a pair of Mickey Mouse jeans on the basement floor when Constable Jones took photographs later on July 6. For reasons that were not entirely clear, that photograph was not put to K.B. so that she would have had an opportunity to explain why the Mickey Mouse jeans were pictured on the floor: see Browne v. Dunn (1893), 6 R. 67 (H.L.) As a result it was unclear whether her recollection was mistaken, or if she had put that particular pair of Mickey Mouse jeans on and then taken them off again on July 6, or whether she had more than one pair of Mickey Mouse jeans.

[153] The eighth is that at trial K.B. said that D.N. had pushed her head toward his penis. In her video statement K.B. said that D.N. had asked her to “suck his penis”. K.B. acknowledged that it could have been the latter. Again, I do not find that much turns on this subtle distinction. Nine years have passed. It was clear from K.B.’s evidence that her mind was not then focused on what D.N. was saying or doing at the time, but rather on doing what she had to do to get him out of the house.

[154] The ninth is defence counsel’s suggestion that K.B. had deliberately hid clumps of hair in the garbage prior to the arrival of the police. K.B. could not definitively explain how the hair came to be in the garbage. K.B. did suggest that it may have found its way to the garbage in the process of her cleaning up the house. I find that nothing turns on her lack of explanation. There are several reasons for this. One reason is because it was K.B. who told the police that the hair was in the garbage. Similarly, when she found more hair under her bed a few days later, K.B. alerted the police to that find. I find that conduct is clearly inconsistent with a desire to mislead. Another reason is that K.B.’s suggestion that she may have put the hair in the garbage in the process of cleaning up is consistent with her evidence that she had cleaned up the blood in the house after D.N. had left but prior to making the decision to call the police. That was because she did not want her son to see blood in the house.

Other reasons the defence maintains that I should not believe K.B.

[155] Defence counsel maintains that several aspects of K.B.’s conduct defy common sense.

[156] For example, defence counsel asked why K.B. had not fled the house while D.N. slept. K.B. explained that it was the middle of the night and D.N. was in her home. Accordingly she had nowhere to go. K.B. also explained that the cast on the foot that she had broken approximately one week prior had impeded her mobility. K.B. also testified on several occasions that she was afraid of D.N. and did not want to do anything that night to make him any more angry than he already was. Finally, K.B. said that she did not want to risk her son coming home and being alone in the house with D.N. I accepted that evidence from K.B. I found it logical and consistent with the preponderance of evidence that I believed.

[157] As another example, defence counsel questioned why K.B. had “crawled into bed” with D.N. after he had assaulted her. In re-examination K.B. explained that she has been a battered woman all of her life and as a result she is “conditioned”. In her words, she did not want another beating and was worried that she would receive one if D.N. did not find her in bed in the morning. I believed K.B. I found that evidence consistent with the propensity of evidence that I believed at trial, and in particular when that evidence was considered in the context of the relationship between K.B. and D.N.

[158] As a third example, defence counsel questioned K.B.’s conduct after the fact. He questioned why K.B. had waited several hours to call the police after the incident in question. K.B. answered that she was “scared shitless” and that she did not know what to do. Again, I believed K.B. That response was certainly understandable when considered in the context of the photographic evidence, the evidence of Constable Burke, and the evidence of Ms. Porto as to K.B.’s injuries.

[159] As a fourth example, Defence counsel also asked why K.B. had not notified the police when several years later she saw D.N. in a McDonald’s. K.B. candidly stated that she had lost faith in the police given what she perceived as the lack of effort they had put into finding D.N. at that point in time. That proposition finds support in D.N.’s claim to have been unaware of the charges until he was arrested many years later. That proposition also finds support in defence counsel’s acknowledgement that the police had not been diligent in their pursuit of D.N. Again, I believed K.B. I found that explanation reasonable and consistent with the propensity of evidence that I believed.

[160] Prior to leaving the issue of K.B.’s conduct, I would add to my observations above that there is no inviolable rule as to how victims of trauma such as assault and sexual assault will behave. “Some will want to raise a hue and a cry, some will want to crawl into a hole and die.” The issue in each case is whether the particular complainant acted in a manner after the alleged incident which is consistent with her or his story: see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; and: R. v. T.E.M., 1996 ABCA 312, 187 A.R. 273, at para. 11. In this case I find that K.B. did.

Conclusions as to the evidence of K.B.

[161] In conclusion, I found that K.B. knew what had happened to her on July 6 and who had done it to her. I believed her evidence that she was assaulted, that it was D.N. who had assaulted her, and that she and D.N. had sex the following morning. I was left with no reasonable doubt as a result of that evidence when it was considered in the context of the totality of evidence at trial, including that of D.N. That was notwithstanding the frailties in her evidence referenced above.

c) The evidence of Susan Porto, Constable Peter Burke, and Constable Ryan Jones

[162] I found the evidence of Ms. Porto, Constable Burke, and Constable Jones to be both reliable and credible. Their evidence was internally consistent and consistent with the preponderance of evidence that I accepted.

5) The motives of the parties

[163] I reiterate that there are two components to the theory of the defence.

[164] The first is that D.N.’s DNA was found in K.B. because they had consensual sex on the afternoon of July 5. In support of that proposition it was D.N.’s evidence that there had been no hostility whatsoever between him and K.B. either on June 8 or at any time after that, up to and including the time of trial.

[165] The second component of the theory of the defence was that an unknown third-party assaulted K.B. The defence maintains that K.B. had a motive for lying to the police and telling them that it was D.N. who had assaulted her. The defence suggests that K.B. was so angry that D.N. had broken up with her, and that the police had not charged D.N. with assault on June 8, that she had blamed D.N. for the July 6 assault rather than telling the police who had actually assaulted her. The defence argued that proposition finds support in the 911 call because K.B. told the police that she had been assaulted the month prior, that D.N. had not been charged, that he was then on probation, and that she had not had a bath since she was sexually assaulted.

[166] I begin with the observation that I find nothing unusual in K.B. telling the police that this was not the first time she had been assaulted by D.N. Nor do I find anything unusual in K.B. telling the police that D.N. was then on probation or that she had not yet taken a bath. I find her disclosure that she had not yet taken a bath consistent with an awareness of the importance of maintaining the integrity of the evidence of the sexual assault.

[167] More importantly, I reiterate that I find the two components of the theory of the defence fundamentally incompatible with one another. That opposition can be seen in the context of D.N.’s own evidence. I find that it defies logic that K.B. would have consensual sex with D.N. on July 5 while continuing to harbour sufficient animus to falsely accuse him of these horrible crimes the very next day. When that evidence is viewed in the context of the totality of the evidence, including K.B.’s evidence as to the events of June 8, the June 8 report of domestic violence to the police, the June 8 police advice for K.B. to go to Hiatus House, D.N.’s evidence that he called K.B.’s mother rather than her when he could not get into the house on July 5, and all of the other evidence at trial I believed, it does not make sense that K.B. would have had consensual sex with D.N. on July 5 as he asserts. In other words, that assertion is not only illogical in the context of D.N.’s own evidence, it lacks harmony with the totality of the evidence that I accepted, and accordingly I did not believe it.

[168] For all of these reasons I conclude that K.B. did not have consensual sex with D.N. on July 5. That said, K.B. may have continued to be angry with D.N. about the events of June 8. Accordingly, I considered the evidence of both D.N. and K.B. in the context of that possibility.

[169] The Crown also suggested that D.N. had a motive for his conduct, including the assault of K.B. The Crown maintained that consistent with K.B.’s evidence, the June 8 breakup had been somewhat violent, and it was that violence that had brought an end to the relationship. In the Crown’s words, the “gravy train had come to an end”. D.N. would now have to buy his own food, pay for his own beer, pay for his own lodging at times when he would otherwise be at K.B.’s, pay his own cab fare, etc.

[170] The Crown also suggested that consistent with D.N.’s comment that K.B. was a “nigger lover”, he was angry that K.B. may have been sleeping with a black man after the June 8 breakup.

[171] I am aware that D.N. denied both of these assertions. Notwithstanding that denial, I found the assertions plausible and accordingly gave them some very limited weight in my consideration of the fact situation as a whole.

6) The potential defence of alibi

[172] As said above, D.N. maintains that immediately prior to the timeframe within which K.B. was assaulted he had gone to the home of Lisa. In other words, D.N. was somewhere else and accordingly could not have assaulted K.B.

[173] Defence counsel took the position that D.N.’s evidence was not intended to establish an alibi, but rather only to establish that it was not D.N. who assaulted K.B. That put me in somewhat of a difficult position because it is incumbent upon me to consider any defence which may be of assistance to D.N.

[174] As a result, I found myself on the horns of a dilemma. On the one hand I have an obligation to D.N. to consider any potential defence, and on the other defence counsel maintains that D.N. is not relying on the defence of alibi. As a result, defence counsel takes the position that D.N. had no obligation to do anything with respect to that defence. In the words of defence counsel, D.N. does not have to prove anything.

[175] I begin my analysis with the observation that an exception to the rule that the defence does not have to prove anything is engaged where a defence is raised on which the burden of proof is on the defence, for example, in an alibi defence: see R. v. N.L.P., 2013 ONCA 773, 305 C.C.C. (3d) 105, at para. 63; R. v. Witter (1996), 27 O.R. (3d) 579, at pp. 589-90; R. v. Dupuis (1995), 23 O.R. (3d) 608, at p. 620.

[176] In this case D.N. testified that he was at Lisa’s house. That evidence is clearly consistent with an alibi. That evidence is an explanation as to why D.N. could not have been at K.B.’s house during the relevant timeframe.

[177] D.N. testified that he was aware of the importance of Lisa’s evidence to his case, yet he had made no meaningful attempts to locate her. I reiterate that Lisa’s father Pat was Jamie’s next door neighbour. It follows the inquiry would have been quite simple. Prior to leaving the issue, I am aware that D.N. explained that he had heard several years before that Pat and Lisa had had a falling out and that Pat had not communicated with Lisa for some time. As a result he was unable to locate Lisa. I agree with the Crown proposition that if Lisa and her father in fact had a parting of the ways many years ago, the differences may have been resolved in the intervening years. Accordingly, I found D.N.’s representations as to his conduct difficult to believe because that conduct lacked common sense.

[178] Further, defence counsel candidly admitted that no effort had been made to tell the police where D.N. maintains he was at the time the crimes were committed. Had he done so the police could have investigated those assertions. The law requires the defence to disclose an alibi with sufficient time for the authorities to investigate. That requirement has been held to be an exception to the accused’s right of silence: see R. v. Cheng, 2012 ONSC 3491, at para. 21; R. v. P. (M.B.), [1993] 1 S.C.R. 555. The consequence of a failure to disclose is that the trier of fact may draw an adverse inference: see R. v. Cleghorn, [1995] 3 S.C.R. 175, at para. 4; Russell v. The King (1936), 67 C.C.C. 28 (S.C.C.), at p. 32.

[179] In the end, there was no evidence other than D.N.’s bald assertion to support the contention that he was at Lisa’s house during the relevant timeframe. As said above, I did not accept D.N.’s evidence in that regard. I found that evidence like much of D.N.’s evidence lacking in credibility.

[180] Accordingly, I resolved the dilemma with which I was confronted by not considering that evidence for purposes of an alibi. That is because I have satisfied my obligation to the accused to ensure the defence would not be of assistance to him.

[181] Once that obligation was satisfied, fairness required me to not consider the alibi for any other purposes except the issue of D.N.’s credibility. In other words, I did not draw any adverse inferences from D.N.’s failure to make a meaningful effort to find Lisa or from his failure to notify the police as to his potential alibi. That was required out of fairness because, as said above, defence counsel specifically stated that D.N. did not want to rely upon his evidence that he was on his way to and at Lisa’s house that evening as an alibi.

7) The defence of unknown third-party suspect

[182] The defence suggested that it was some unknown third party related to K.B.’s drug use that had assaulted her.

[183] I begin by reminding myself of the general proposition that the defence never has to prove anything. Further, the law is well established that relevant evidence concerning an unknown third party suspect will only be excluded where its prejudicial effects substantially outweigh its probative value: see R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 54. Further, any elevated risks of prejudice that arise when an accused seeks to introduce evidence of an unknown third party suspect do not require the accused to satisfy the same admissibility threshold as any other evidence: see Grant, at para. 53.

[184] Accordingly, such evidence is admissible where:

(1) the evidence is relevant to a fact in issue; and

(2) the probative value of the evidence is not substantially outweighed by its prejudicial effects.

[185] In this case, potential evidence as to a culpable third party would clearly be relevant. That said, I find that the probative value of this particular proposition is substantially outweighed by its prejudicial effects. That is because I find the proposition to be nothing more than a bald assertion.

[186] I say that for two reasons.

[187] The first is that there was no evidence as to who that third party might have been.

[188] The second is because there was no assertion by the defence or by anyone that the police investigation was negligent, other than a suggestion that the hair found in K.B.’s garbage and the blood found on her sheets belonged to someone other than K.B.

[189] Several witnesses testified as to clumps of hair being missing from K.B.’s scalp. K.B. identified the hair in the garbage can as her own. I have no difficulty concluding that evidence was correct.

[190] Similarly, the photographs clearly demonstrate that K.B. was bleeding. K.B. testified that at some point in time she had slept in her own bed. I reiterate that is where the blood had been found on the sheets. I have no reason to believe that was not K.B.’s blood on the bed sheets. There was no evidence to suggest that K.B. had ever defended herself against her attacker. It follows that any likelihood that the blood belonged to anyone but K.B. would be remote indeed.

[191] For all of these reasons I would exclude the evidence from consideration. Even if I am wrong as to prejudice significantly outweighing any potential probative value, I find the potential defence of an unknown third party suspect lacks an air of reality in that there is no basis upon which an acquittal could result from the defence based upon the evidence in this case: see Grant at para. 54; and R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70.

8) The charge of assault contrary to s. 266 of the Criminal Code

[192] “The offence of assault is committed when a threat is intentionally made to apply force to the person of another and there is the present ability to carry out that threat. Neither the degree of alarm felt by the person threatened nor the intent of the accused to carry out that threat are involved in the determination of the guilt of the accused.”: see R. v. Horncastle (1972), 8 C.C.C. (2d) 253 (N.B.C.A.), at p. 263.

[193] In order for me to find the accused guilty of assault, the Crown must prove each of these essential elements beyond a reasonable doubt:

a) that the accused intentionally applied force to the complainant;

b) that the complainant did not consent to the force that the accused intentionally applied; and

c) that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

[194] For the reasons above, I conclude that it was the accused D.N. who applied the force to the complainant which resulted in her injuries. I also found that the accused had done so intentionally. That is because the nature and extent of the injuries to K.B. are inconsistent with D.N. having injured her for example by accident.

[195] I also found that K.B. did not consent to the force that D.N. intentionally applied. There are two reasons for this.

[196] The first is that K.B. testified that the assault had gone on for quite some time and that she only wanted it to end. K.B. testified that the assault was quite painful. I believed K.B., and I found her evidence inconsistent with any possibility of consent. Further, I did not find that K.B.’s failure to “fight back” equated with consent. That is because I accepted her evidence that she had not done so because she “did not want to aggravate him more”.

[197] The second reason I find that K.B. did not consent is because a person cannot consent to serious harm. In order to vitiate consent serious harm must both be intended and caused: see R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, at para. 18; and R. v. Jobidon, [1991] 2 S.C.R. 714. Based upon the photographic evidence, the evidence of Ms. Porto, the evidence of Constable Burke, and the evidence of K.B., I find that the assault that the complainant endured resulted in serious harm. I also find that the harm was intended. I say that because I believed K.B.’s evidence to that effect. I also say that because of the extent of the injuries suffered by K.B. They clearly took place over an extended period of time. This is not a situation where one blow was struck and accordingly there is a possibility of accident or mistake. The injuries suffered by K.B. were the result of being struck many times in many places on her body.

[198] Finally, I find that the accused knew that K.B. did not consent to the force that he intentionally applied. I say that because I believed K.B.’s evidence that she had at one point said to D.N. “please don’t” and that the result had been “more fury”.

9) The charge of sexual assault contrary to s. 271(1) of the Criminal Code

[199] “The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C., 1985, c. C-46. The offence is comprised of an assault within any one of the definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated”: see R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 24; and R. v. S. (P.L.), [1991] 1 S.C.R. 909. “What elevates an assault to a sexual assault will depend on the circumstances of each case”: see R. v. V. (K.B.) (1992), 8 O.R. (3d) 20 (C.A.), at p. 23.

[200] The actus reus of sexual assault is established by the proof of three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. The first two of these elements are objective: see Ewanchuk, at para. 25. “Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement”: see Ewanchuk, at para. 41; R. v. Daviault, [1994] 3 S.C.R. 63.

[201] In order for me to find the accused guilty of sexual assault the Crown counsel must prove each of these essential elements beyond a reasonable doubt:

a) that the accused intentionally applied force to the complainant;

b) that the complainant did not consent to the force that the accused intentionally applied;

c) that the accused knew that the complainant did not consent to the force that the accused intentionally implied; and

d) that the force that the accused intentionally applied took place in circumstances of a sexual nature.

[202] For the reasons above I believed K.B. when she said that D.N. had intentionally applied force to her in that they had had sex in the morning hours of July 6, 2008. Given that the force consisted of oral sex and vaginal sex, I find that it took place in the circumstances of a sexual nature.

[203] As a result, I am left with the issue of whether or not K.B. consented and, if not, whether the accused knew that she did not consent.

[204] The Crown has the burden of proving beyond a reasonable doubt the absence of consent on the part of the complainant. The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see Ewanchuk, at para. 26; R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff’d , [1997] 1 S.C.R. 304; R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J.; and D. Stuart, Canadian Criminal Law, 3rd ed. (Thompson Carswell, 1995), at p. 513.

[205] Where a complainant consents to the force intentionally applied there is no assault. To be a valid consent requires two criterion to be satisfied. First, the consent must be given freely. For example it cannot be extracted by threats, violence, or the improper use of a position of authority. Second, the party consenting must appreciate the risks: see Criminal Code, s. 273.1; R. v. Stanley, [1977] 4 W.W.R. 578 (B.C.C.A.), at para. 71; and R. v. Maher (1987), 63 Nfld. & P.E.I.R. 30 (Nfld. C.A.).

[206] If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is established: see R. v. E.K, 2015 ABCA 46, 13 Alta. L.R. (6th) 286, at para. 53; and Ewanchuk, at para. 31.

[207] Applying those legal principles the facts of this case, I conclude that K.B. did not consent. That is not withstanding her participation in the two sexual acts which occurred that morning, oral and vaginal sex.

[208] That is because consent is stripped of its defining characteristics when it is applied to nonresistance or non-objection following an assault such as that endured by K.B.: see Ewanchuk, at para. 36. She testified that it was her perception that she had two choices, to comply or be harmed: see Ewanchuk, at para. 39. In the context of their relationship, and the assault that K.B. had received that night I accepted that evidence of K.B. It follows that the fact that K.B. actively participated in the sex does not equate with her subjective consent: see Ewanchuk, at para. 62.

[209] As to whether D.N. knew that K.B. did not consent, I find that any steps he may have taken to ascertain consent were woefully inadequate in the circumstances.

[210] In this case, sex had begun in the way that it had in the past between the accused and the complainant: see R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at para. 42. When viewed in isolation, that factor tends to weigh in favour of D.N. having a potential belief in consent.

[211] That said, the relevant circumstances include not only the sexual history as between the parties, but also the events immediately preceding the sexual act. In this case D.N. had to consider the very serious assault that I find he had administered to K.B. in the hours immediately preceding the sexual acts: see R. v. Paxton, 2016 ABCA 361, at para. 45. The creation of a situation such as this where K.B. had done nothing to defend herself throughout the physical assault which had occurred earlier that evening, had to inform D.N. that she may not consent to sex. I find that this specific situation created a heightened obligation on D.N. to ensure that K.B. was consenting to these particular sexual acts. The notion that an individual who had been assaulted as K.B. had been would freely consent to sex with the man responsible for the assault defies belief in a civilized country such as Canada, which has given constitutional protection to the dignity and worth of the individual. It follows that in these situations the most compelling evidence of subsequent unequivocal consent by the complainant is necessary to give the defence of honest but mistaken belief in consent an air of reality: see R. v. R.G. (1994), 53 B.C.A.C. 254, at para. 33.

[212] I find that D.N. did not take the necessary steps to ascertain consent in the circumstances of this case.

10) The charge of overcoming resistance to commission of offence contrary to s. 246 of the Criminal Code

[213] In order for me to find the accused guilty of overcoming resistance to the commission of an offence, the Crown counsel must prove each of these essential elements beyond a reasonable doubt:

1. Actus reus: the accused choked or attempted to choke the complainant.
2. Mens rea: at the time of the choking or attempted choking, the accused, a) intended to choke the complainant, and b) intended the choking to make the complainant incapable of resistance, and c) intended the condition induced by the choking to facilitate an assault.

See R. v. Meyers, 2016 SKQB 413, at para. 67; R. v. C.L.J.; R. v. J. (C.L.), 2010 ABQB 90, 20 Alta. L.R. (5th) 222, at para. 51, aff’d 2011 ABCA 176, 48 Alta. L.R. (5th) 395; R v Hill, 2010 ONSC 5150, at para. 18; and R v Brierley, 2009 ONCJ 483, at para. 38.

[214] Against those principles, I will review the evidence as to the various elements of the offence.

[215] I believed K.B. when she said that D.N. choked her. The evidence that K.B. was choked finds support in the photographic evidence of her injuries.

[216] I also have no reasonable doubt that D.N. intended to choke K.B. As said above, that choking had taken place in the context of an assault which had lasted an extended period of time. As a result, I found there was no reasonable possibility that the assault or that choking had occurred by accident.

[217] I did however have some difficulty with the proposition that the Crown had proven beyond a reasonable doubt that D.N. had intended the choking to make the complainant incapable of resistance and intended that condition to facilitate the assault. I say that because it was not necessary for D.N. to do anything to facilitate the assault. The clear unequivocal evidence of K.B. was that she did nothing to resist. There was no evidence to suggest any intention on the part of D.N. related to that choking other than his intent to injure K.B.

[218] As a result, I find that the Crown has failed to prove two elements of that offence beyond a reasonable doubt.

[219] Prior to leaving the issue I would like to make clear that I am not suggesting that it was okay for D.N. to have choked K.B. That choking clearly amounted to an assault and will be considered at the sentencing stage. I am only saying that the additional offence of overcoming resistance to the commission of an offence was not proven beyond a reasonable doubt.

C. Judgment

[220] For all the above reasons, I find as follows:

1. as to count one - guilty
2. as to count two - guilty
3. as to count three - not guilty

Original signed “Bondy J.” and made exhibit Christopher M. Bondy Justice Released: Oral Decision – July 20, 2017

COURT FILE NO.: CR-16-3818-0000 DATE: 20170720 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – D.K.N. REASONS FOR JUDGMENT Justice C. M. Bondy Released: Oral Decision – July 20, 2017