Court File and Parties

COURT FILE NO.: CR-16-6604 DATE: 2018/10/22

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen – and – JS

Counsel: Stephen Donoghue for Her Majesty the Queen Michael Spratt for JS

HEARD: May 28, 29, 30, 31, June 1 and July 10, 2018 (at Ottawa)

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.

AMENDED reasons for decision

The text of the original REASONS FOR DECISION RELEASED on SEPTEMBER 13, 2018 was corrected on October 22, 2018 and the description of the correction is appended.

o’bonsawin J.

Background

1At the time of the incidents, JS was a Geospatial Engineer with the Canadian Armed Forces. He is currently thirty-eight years old. AG is a school teacher. She met JS through the school community; he was a parent of one of the children she had taught. They began dating in July 2015 and in October 2015, JS moved into AG’s apartment. They then moved into a rental house in December 2015 where they resided until June 3, 2016. Since JS had filed for bankruptcy, AG was the primary on the lease. Both JS and AG described their relationship as difficult, marked with highs and lows. There were highs at the beginning of the relationship and increased lows at the end of the relationship. There were issues about finances, both were dealing with mental health issues, and JS was dealing with issues regarding custody of his two children from a prior relationship. At some point, both were prescribed medication to treat their mental health issues. In addition, in March 2016, JS came home and told AG that he had been diagnosed with leukemia.

2JS is charged with the following:

1. between the 1st day of December in the year 2015 and the 31st day of January in the year 2016 at the City of Ottawa in the East Region did commit an assault on [AG], contrary to section 266 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“CCC”);
2. on or about the 3rd day of June in the year 2016 at the City of Ottawa in the East Region did commit an assault on [AG], contrary to section 266 of the CCC;
3. on or about the 3rd day of June in the year 2016 at the City of Ottawa in the East Region did commit a sexual assault on [AG], contrary to section 271 of the CCC;
4. on or about the 3rd day of June in the year 2016 at the City of Ottawa in the East Region, did, in committing an assault on [AG], carry, use or threaten to use a weapon contrary to clause 267(a) of the CCC;
5. on or about the 3rd day of June in the year 2016 at the City of Ottawa in the East Region, did, by word of mouth, knowingly utter a threat to cause death or bodily harm to [AG], contrary to sub-section 264.1(2) of the CCC;
6. on or about the 3rd day of June in the year 2016 at the City of Ottawa in the East Region, did, by word of mouth, knowingly cause [AG] to receive a threat to cause death or bodily harm to an individual or individuals known to her, namely, [NR], [PM], [LM1], [HM] or [LM2], contrary to sub-section 264.1(2) of the CCC;
7. on or about the 3rd day of June in the year 2016 at the City of Ottawa in the East Region, did, by word of mouth, knowingly utter a threat to kill or injure an animal, the property of [AG], contrary to sub-section 264.1(3) of the CCC; and
8. on or about the 3rd day of June in the year 2016 at the City of Ottawa in the East Region, did commit a sexual assault with a weapon on [AG], contrary to sub-section 272(1) of the CCC.

3At the commencement of the trial, the Crown and the Defence agreed to the following:

• the voluntariness of JS’ video-taped statement to police is admitted;
• AG’s medical records from the Civic Hospital can be admitted; and
• the date, jurisdiction and identity are admitted.

4At the end of the trial, JS’ counsel advised that with the exception of the sexual assault counts in the indictment, specifically counts #3 and 8, there is evidence to support the other counts in the indictment and convictions are invited on counts #1, 2, 4, 5, 6 and 7.

5The Crown called three witnesses to testify: AG, NR and police officer Paddye McGill. The Defence called two witnesses to testify: JS and AN.

Position of the Parties

The Crown

6The Crown argues that JS should be found guilty on all eight counts.

7The Defence concedes that JS is guilty on six of the eight counts set out in the indictment. The Crown has proven JS’ guilt on the remaining two counts of sexual assault (count #3) and sexual assault with a weapon (count #8).

8The account provided by JS should not be believed or leave this Court with any reasonable doubt as to his guilt on the counts of sexual assault. JS’ evidence was problematic given the implausibility of some aspects.

9JS testified to a very heated exchange between himself and AG, at which time she was considering ending their relationship and threw clothes and hangers at him. JS then grabbed AG by the throat, pushed her across the bedroom, and threw her onto the bed where they continued arguing. According to JS, within seconds, there was a 180 degree change in AG’s mindset and she consented to sexual activity with him. It is implausible that AG would consent to sexual activity so soon after the frightening exchange between herself and JS.

10The Crown submits that even more implausible was JS’ initial description of the events: in his interview with police, JS claimed that AG initiated the sexual interaction by “ripping her clothes off” and saying “[l]et’s have sex.”

11When JS gave his statement to police, he had not been told the details of the allegations against him. Yet during that interview, he claimed he did not hold the knife to AG’s knees, throat and armpits. It is thus implausible that JS would be able to respond during his police interview to allegations that he put a knife to various parts of AG’s body unless he had actually done so. In addition, it is implausible that JS would threaten to cut off AG’s fingers and cauterize them with a frying pan, rather than her breasts, given the events he described.

12The Crown argues JS’ evidence was problematic given its inconsistencies. JS was inconsistent when he described who initially suggested sexual activity. At trial, JS claimed he initially suggested sexual activity with AG. However, during his interview with police, JS claimed it was AG who initially suggested sexual activity.

13JS was also inconsistent when he described how AG’s neck was cut. During examination-in-chief, JS claimed that the cut to AG’s neck was caused by his fingernail since he did not feel it could have come from anything else. However, during cross-examination, he acknowledged it was possible that the cut was caused by the knife when he was putting it to AG’s throat.

14JS was inconsistent when describing his “perfect recollection” of the events. During examination-in-chief, JS claimed that he had a “perfect recollection” of the events. However, during cross-examination, he acknowledged he did not have a photographic or eidetic memory, and conceded that he did not have a “perfect recollection” of the events.

15The Crown argues on the basis of the balance of the evidence which this Court should accept, it should be convinced beyond a reasonable doubt by the evidence of JS’ guilt. The balance of the evidence came principally from AG and her evidence should be believed because she provided a very plausible account of the events of June 3, 2016; she was very consistent in her account of the events; her testimony was corroborated by other evidence; and, her demeanor while testifying added to her credibility.

16The Crown submits that for the evidence regarding count #3, AG testified to two separate non-consensual sexual assaults committed by JS on June 3. That morning, AG awoke at approximately 5:50 a.m. JS put his arm over her, she was not comfortable, and moved away. JS did not respond well and followed her to the closet. He grabbed AG by the throat and pushed her onto the bed. He then got on top of AG and put his hands around her throat. AG was terrified and crying. JS sexually assaulted AG by putting his penis inside her and thrusting 10-12 times until he ejaculated. AG did not do or say anything to suggest she wanted to engage in sexual activity at that time.

17With regards to the evidence relating to count #8, the Crown argues that shortly after JS re-entered the bedroom carrying a knife, he pointed it aggressively towards AG. JS got on top of AG on the bed. JS told AG that if she said anything she would regret it. He put the knife to different parts of her body, including her eye, her ear, her throat, her breasts, her wrist, her pelvis, and her ankle. AG was terrified, crying, and pleading “no”. JS sexually assaulted AG again by putting his penis inside her vagina, thrusting inside her, and ejaculating inside her. AG did not want any of this, but was too terrified to fight back. AG did not consent.

18The Crown puts forward that in the alternative, if this Court believes JS’ account or is left with a reasonable doubt concerning his guilt, JS is nevertheless guilty of count #3 (sexual assault) but concedes he would be not guilty on count #8 (sexual assault with a weapon). AG did not consent to the sexual activity described by JS, even on his version of events. Although JS claimed AG consented to the sexual activity, he conceded in his evidence that he could not testify to what was in AG’s mind at the time of the sexual activity. AG was clear in her evidence that she did not consent to any sexual activity with JS on June 3. She was sexually assaulted by JS.

19The Crown further argues simply because JS’ evidence is believed, or leaves this Court with a reasonable doubt as to how events unfolded, AG’s evidence concerning her subjective state of mind at the relevant time is not necessarily rejected, as the Court may accept some, none, or all of any witness’ testimony.

20The Defence asks this Court to infer AG consented to the sexual activity with JS given her lack of words and actions. JS described those words and actions: AG did not say “no” to sexual activity; she removed her clothes; and, she actively participated after it began. The Crown submits however that consent should not be inferred from these factors. Silence cannot equate to consent. AG’s actions of undressing and participating in sexual activity are explained by the context of the situation and specifically by JS’ threatening conduct rather than by genuine consent provided by AG. Evidence of JS’ threatening conduct towards AG include the heated argument between JS and AG; and JS was frustrated and upset. JS grabbed AG by the throat, squeezed her throat, pushed her to the bed, threw her down onto the bed, and got on top of her. JS is bigger and heavier than AG. Their heated argument continued while JS was on top of AG. JS then suggested that he and AG have sex. AG never verbally said “yes” to sexual activity.

21The Crown argues that in the alternative, if this Court finds AG consented to sexual activity with JS, the “consent” is vitiated by JS’ threatening conduct. Consent to any assault, including a sexual assault, may be vitiated where the complainant submits or does not resist by reason of threats or fear of the application of force to the complainant pursuant to s. 265(3)(b) of the CCC. Furthermore, JS acknowledged in his own evidence that his behaviour leading up to the sexual activity between himself and AG was threatening. AG testified repeatedly that she was terrified throughout the sexual activity with JS.

22Finally, the Crown submits that if this Court finds there was no consent to sexual activity, the defence of honest but mistaken belief in consent is not available to JS. Honest but mistaken belief in consent is not a defence to a charge of sexual assault where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting, pursuant to s. 273.2(b) of the CCC. JS failed to take reasonable steps to ascertain whether AG consented to sexual activity. AG’s failure to expressly say “no” to sexual activity with JS cannot be viewed as a reasonable step taken by him.

The Defence

23The Defence, for its part, argues that the analysis must begin by considering first principles: JS is presumed innocent. The onus rests upon the Crown prove that JS is guilty. The Crown must prove each element of the offence beyond a reasonable doubt. This is a very high onus and rests much closer to absolute certainty than a balance of probabilities. If this Court believes that JS is likely or probably guilty, then he must be found not guilty.

24The Defence called evidence in this case. As such, the Court must be mindful of the tenets set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 (also see: R. v. M.(J.) (26 February 2018), Cornwall, 3911-998-16-C1018, (OCJ)). If this Court believes the testimony of JS, he must be found not guilty. Even if this Court does not believe the testimony of JS but is left with a reasonable doubt of his guilt, he must be found not guilty. Even if JS’ testimony does not leave this Court with any reasonable doubt as to his guilt, the Court may only find him guilty if, based on the evidence that is accepted, it is satisfied of his guilt beyond a reasonable doubt.

25The Defence submits that JS’ evidence should not be discounted simply because he is the accused (R. v. B.(L.), 13 O.R. (3d) 796). In addition, there is no burden on the accused to show why AG would make a false/unreliable statement (see: R. v. M.(A.W.), [1993] O.J. No.901 (C.A.) and R. v. Nimchuck, [1976] O.J. No. 1258). AG’s evidence must be both credible and reliable. These are separate criteria.

26The Crown must prove its case beyond a reasonable doubt. In a case like this, one that is founded on the evidence of the complainant, the Crown must prove the credibility and reliability of that evidence beyond a reasonable doubt. Evidence may be credible but not reliable, or a doubt may exist even where evidence is found to be both credible and reliable.

27With regards to the evidence in this case, the Defence argues that much of it is not substantially in dispute. The only area of dispute relates to the sexual activity. AG and JS gave vastly different versions of the sexual activity.

28The defence is simple; the version of events provided by AG did not occur and this Court cannot be satisfied beyond a reasonable doubt of her credibility or reliability. JS was credible and his evidence should be accepted.

29JS testified that the sexual activity was consensual. The Crown did not challenge his version of events. The Crown focused on consent in relation to JS’ evidence. The Crown did not suggest that he was lying or that his memory was unreliable. JS’ evidence about the circumstances of the sexual activity was largely unchallenged in cross-examination. JS was unshaken in cross-examination and his evidence should be accepted, especially since it went largely unchallenged. To the extent that there were inconsistencies in JS’ evidence, these were not of the magnitude that would require this Court to dismiss his evidence entirely. JS also fairly conceded these contradictions and his answers to them were entirely appropriate and logical.

30JS provided a video-taped statement to police. The Defence argues this exculpatory statement is admissible for the truth of its contents. The video statement is also consistent with JS’ evidence in court. Following the Ontario Court of Appeal’s decision in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, the police statement is also admissible as an exception to the general rule excluding prior consistent statements. Since the Crown did not object and the video statement was entered into evidence, there is no need to review this argument any further.

31JS’ statement to the police was provided immediately following the allegations, he made a statement shortly after arrest, he was not provided with any information prior to making the statement, and he exposed himself to cross-examination. Consistencies between JS’ police statement are relevant when examining his credibility. His evidence was consistent with the physical evidence. JS made fair concessions. He also made statements against his interest and accepted responsibility for that which he was guilty of in both his statement to the police and his evidence in court. JS was fair to AG; he did not minimize his actions or unduly criticize her. His answers were responsive. In addition, the Defence argues that in many aspects, JS’ evidence was corroborated by AG.

32This Court cannot take judicial notice of how a couple should act. JS explained the context of the relationship, including the context of the consensual sexual activities. JS’ evidence was also supported by AN’s evidence, which at the very least, raises a doubt about AG’s evidence. JS’ evidence should be accepted or at the very least raise a reasonable doubt. Furthermore, there was no evidence of a lack of consent in JS’ evidence. The onus rests with the Crown to prove lack of consent beyond a reasonable doubt. There is no evidence to support that AG did not consent to sexual activity. In short, it is implausible that there is a lack of consent in these circumstances. Certainly, the Crown has not disproved consent beyond a reasonable doubt.

33The Defence submits that consent is proven in this case and not disproven beyond a reasonable doubt: AG took her clothes off; JS suggested sexual activity and she did not say no. There is no evidence that AG was in fear. The sexual activity was consistent, both the acts and the manner of consent, with other occasions when the couple had sexual activity in the past and AG was an active participant.

34JS and AG have dramatically opposed stories about the sexual activity. This Court should not splice together these versions of events to construct a third narrative. Simply, if this Court accepts JS’ evidence or is left in doubt by it, there must be an acquittal. With regards to AG’s evidence, the Defence contends that JS accepted much of her evidence. The main area of disagreement relates to the sexual activity on June 3.

35The Defence also argues that it is dangerous to overly rely on demeanor evidence (R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675). AG admitted to experiencing memory issues as a result of her medication. Stressful situations resulted in improper processing of information. This raises doubt with respect to AG’s reliability. AG had issues with her memory leading up to the very incident in question; she did not remember how she ended up on the bed or the time in between leaving the closet and ending up on the bed. AG was inconsistent in her evidence, demonstrating some doubt with her memory regarding the events of the sexual activity. Specifically when the knife was produced, she testified: “I don’t know if he got the knife before [or after] he told me to take my clothes off”. In court, AG testified she said “no”, shook her head, said “no” and was crying during the sexual activity. However, AG had a different memory when she spoke with the police; she said that she pretended to enjoy having sexual activity with JS. These are not collateral or insignificant issues with AG’s memory and reliability. They directly relate to the substance of the only issue in dispute in this trial.

36The Defence further submits that AG may truly believe that the version of events she testified to occurred. This was a stressful situation. JS assaulted her, threatened her, and acted inappropriately. There was a dispute about money. This was certainly not a perfect relationship, but that is not the issue to be decided.

37Given the above issues with AG’s evidence, it is simply not reliable or credible. She could have filled in the blanks between the two fights. She could have “made that part up” or misremembered. This Court may even accept most of what AG said but still have a doubt based on the other evidence.

38The Defence argues that the medical evidence does not corroborate AG’s account; rather, it is instead consistent with JS’ evidence. One might even expect more significant injuries to AG’s neck given the manner in which she says she was choked.

39With regards to AN’s testimony, his evidence was delivered in a straightforward manner and should cause serious doubt about AG’s credibility and reliability. AG told him while discussing the allegations that she “made it up”. AN did not take notes or have a verbatim recollection, but this conversation was something that stood out in his mind. He did not embellish or overstate his evidence. He is not a close friend of JS and he said he does not owe JS anything. AN asked his supervisor for advice about how to proceed and explained his actions. He was clear that when AG said the words “made it up”, this was not in relation to the Crown’s speculation of AG saying things like “he will say I made it up”. AN was clear that AG said this in relation to herself and in relation to the allegations. This is highly concerning and AG’s recollection and explanation of this disclosure is problematic. In addition, AN was not shaken in cross-examination. This evidence is the embodiment of reasonable doubt.

40Finally, the Defence submitted that standing alone, AG’s evidence does not meet the exacting standards required to prove an offence beyond a reasonable doubt. This is even more so when AG’s evidence is evaluated alongside the other evidence, particularly JS’ testimony, police statement and AN’s evidence. As such, JS, on any branch of the W.(D.) test, is entitled to an acquittal with respect to the sexual assault allegations.

Evidence

41JS and AG both gave similar evidence with regards to the December 2015-January 2016 incident. It was late at night when JS was driving back from a party. AG was a passenger in the vehicle. They were having an argument and their voices started to rise. The volume of their voices continued to increase and JS was getting angry. AG was getting nervous. At one point, JS pulled the car over and they were yelling at each other. He hit the steering wheel four to five times and threw his fist out to the right and hit AG’s arm. JS used enough force to make AG’s arm ache and she had a large bruise following the impact, which lasted for a week and a half to two weeks. During the trial, JS agreed that this incident occurred as described by AG.

42The relationship between JS and AG did not improve. Between December 2015-January 2016 and June 2016, another incident occurred. The couple had pulled up in front of a bank and were having an argument about finances. JS felt that AG was not listening to him. JS used a talking rock in certain situations. This process confirmed it was the turn of the person who held the object to talk. During this incident, JS used a loonie. JS wanted AG to take the loonie in her hand. AG did not feel that she had to hold the loonie and JS became frustrated. JS grabbed AG’s hand and closed it around the coin. AG fought and she was able to let go of his grasp. Both gave similar evidence regarding this event and during the trial, JS agreed that this incident occurred such as described by AG.

43JS and AG also both gave similar evidence regarding the events that led to the June 3 incident. JS and AG were going through a difficult period in their relationship and had not been sleeping in the same bed. On a couple of previous occasions, AG and JS discussed wanting to press the reset button on their relationship and return to a clean slate. They had gotten into another argument on June 2 regarding the renewal of AG’s license plate stickers. When AG went online to renew them, there were outstanding fines in the amount of $525. After further investigation, she was advised that these fines had been incurred by JS. She confronted JS which led to an argument. Their versions differ a bit about what was said but the crux of it was that they argued because JS had incurred fines and there were issues surrounding the payment of those fines.

44On the evening of June 2, JS was upset and begged AG to give him another chance. He asked her for compassion and respect. JS asked her to share their bedroom that night. She agreed. JS and AG then watched a movie and ate popcorn. Afterwards, JS went to a friend’s place and AG went to bed.

45I will review the evidence of AG and JS, more particularly regarding the events of June 3 since this is where they differ.

46I summarize AG’s evidence as follows:

• AG is currently medication free. However, she did not have a clear memory of some parts of the events on June 2-3. She stated that “[m]inor details of certain conversations would elude me, concepts and major events were still intact”. She wrote things down to help her memory. A medication change could make the little details disappear but not provide memory loss. AG’s last medication change was in March.
• The next thing AG recalled was the alarm going off at 5:45 a.m. on June 3. Her dog was in bed with them. JS rolled over and put his arm over her. She was uncomfortable with the affection he was showing her and she moved away. AG was not comfortable with spooning and cuddling.
• AG then got up and went to the closet to get her clothes for work. JS followed her into the closet and asked her if the relationship was over. He wanted a definitive answer, a “yes” or a “no”. AG told him “fine it is over, it is done.” AG was asked on cross-examination if she had thrown clothes at JS and she responded “no.” JS became very upset, put his hands on both sides of her and pushed to get his clothes in the closet. She objected to being pushed by him. JS responded that because they were no longer friends or in a relationship, he no longer had to treat her with respect. AG then left the closet and JS followed her.
• AG ended up on the bed but she did not recall how she got there. Her head was off of the bed and she was on her back. She could not recall if they said anything from the closet to the bed. JS was on top of her, his legs were on either side of her body and his weight was on his knees. JS pulled AG’s hair where the neck meets the skull and pulled her head backwards with one hand and it hurt her. He pulled her hair at least three times.
• While JS was on top of AG, he told her if she wanted to know what abuse was, he would make sure she knew what it was. He then proceeded to strangle AG with both of his hands around her throat. AG could not talk or breathe. She did not recall how long JS held her neck. While he was strangling her, JS told her to look into his eyes and she saw an intense blue. “I was not actually looking, I was just doing what I was being told to do to make it end.” JS then punched AG on her left cheek just under her eye. He used enough force to leave slight bruising and made it ache.
• When he was on top of her, JS told AG that she had treated him horribly and that a dying man deserved love and respect; he was God’s gift to her and she was spitting in his face. His tone was very angry, passionate, and intense. AG was not able to get free of JS’ hold on her. AG was “absolutely terrified” and she was “bawling”.
• Afterwards, JS told AG to get up and take her clothes off. She was scared and got up. “I was afraid if I did not, it would get worse”. JS then told her to get back on the bed and she followed his order. JS got on top of AG, spread her legs and put his penis inside of her. It was fairly quick; ten to twelve thrusts and he was finished. She was not certain if he ejaculated inside or outside of her.
• AG did not consent to this sexual activity. “I did not want to do it, I was doing what I was told, he told me to get on the bed, I was crying I think, I was shaking my head and I just wanted him to stop”. During the sexual assault, she shook her head repeatedly. It was very clear to her that this demonstrated to JS that she was not interested. She did not remember if she said “no” while JS was sexually assaulting her. She did not recall if JS said anything to her when he was sexually assaulting her.
• After the sexual assault, JS got up and left. AG did not recall seeing him leave the bedroom. She got up, dressed, and got ready for work. While AG was still in the bedroom, JS came back and was holding in his hand a large knife with a black handle with straight bevels on the edge. JS was shaking the knife aggressively and was pointing it at AG. She clearly recalled that JS had the knife before her clothes were off. She took her clothes off. AG ended up on the bed again and JS was over top of her with the knife. He touched her with the knife after her clothes were off.
• JS told AG that if she said anything to anybody, she would regret it. He then put the knife on different parts of her body and told her what he would do if she told someone what he had done. JS put the knife to her eye and told her how easy it would be to remove it. He brought the knife to her ear and told her he would cut it off so no man would ever want her. He then brought it to her throat and told her how easy it would be to cause her pain; to her breasts, and threatened to cut them off and cauterize them with a frying pan; to the veins in her wrist, and told her it would be easy for him to cut them open; to her pelvis she did not recall what he said; and, to her ankles, at which point he said that he knew exactly what to do to cut her tendons to cause her pain without causing permanent damage. The knife made contact with AG’s throat and directly touched every part of her body as JS went through each of them.
• Furthermore, JS told AG that the least she could do was to give him some love before he died and she had to pretend to love him. When he spread her legs and put his penis inside of her, JS told AG to pretend. He kissed her and she pretended and kissed him back and kissed his arms. AG pretended that she enjoyed it. She did not know where the knife was at this point. At this time, AG was shaking her head and crying. She did not want any of it. She was terrified as to what would happen if she said “no”.
• In addition, JS told AG that if she talked to anyone, he would “kill my mom, leave my dad alive because he had a good head on his shoulders seems like a decent guy, kill my sister and niece but keep her husband alive to be rid of her, [NR] and her children but leave her husband alive because he seemed like a decent guy, he was threatening to slit my dog’s throat open”. NR is AG’ friend, PM is NR’s son, LM1 is NR’s daughter, HM is AG’s sister, LM2 is HM’s daughter and AG’s niece. AG was pleading and crying and at one point, JS told her to take off her clothes again. She was terrified. She said “no”. She pled for her dog’s life. JS then proceeded to sexually assault her again. JS ejaculated inside of AG. He told her to get up, get dressed, and go downstairs for breakfast.
• It was suggested to AG during cross-examination that JS pushed her, she fell on the bed, he suggested they have make up sex, and that she took off her clothes and had consensual sex. AG disagreed.
• AG felt numb, she did not know what to do, she was terrified that JS would hurt all of the people he had listed so she got up, got dressed, and went downstairs for breakfast between 7-7:15 a.m. AG was crying when she got into the kitchen, JS told her to shut up, stop crying, and that nothing had happened. AG sat down and they ate breakfast. This was a blur to her. She did not recall what she ate for breakfast. During cross-examination AG confirmed that they played a game of cribbage together.
• JS drove AG to work. During the drive, AG felt numb and she “could barely figure out what was going on, [she] was shocked”. To her, JS did not seem fazed at all as though nothing had gone wrong that morning. JS told her to call him to pick her up and then they could go get her licence plate stickers renewed. When AG left the car, JS told her that he deserved a kiss and she gave him one because she was too terrified not to do so.
• AG arrived at work sometime before 8:00 a.m. She went directly into the women’s washroom, locked the door, texted NR to tell her that she was at school and would not be teaching. She cowered in a corner of the washroom shaking and bawling. AG did not recall how long she stayed there. At one point, NR knocked on the door. AG unlocked it and NR got down onto the floor and held her. AG kept telling NR that she had to ensure her kids were safe because JS told her if she talked to anyone, he would kill a list of people including NR and her kids. AG was scared for NR and her kids’ lives.
• Somehow, NR got AG out of the washroom; some other teachers walked down the hall with her and brought her to the Vice-Principal’s office. He handed AG a phone and then she talked to the 911 dispatcher for a couple of minutes. AG told the dispatcher who she was, where she was, and gave a description of what had happened, her car, and JS.
• A police officer arrived and she pointed out the cut on AG’s throat. AG had not noticed this cut until the police officer pointed it out to her. AG does not recall what she and the police officer discussed. An ambulance took AG to the Civic Hospital and the police officer met her there. AG was admitted to the domestic assault wing and she was examined head to toe by a registered nurse and a physician. AG told them what had happened. They did a rape kit, checked her cheek and throat and sent her for an MRI to ensure there was nothing serious with her throat. In addition, photographs of AG were taken at the hospital. AG was then released and the police officer brought her to the police station on Elgin. At the station, AG was interviewed. The police officers noticed a slight discoloration on her cheek and strangulation marks and took photographs of her throat and cheek.
• During cross-examination, AG confirmed that during a walk with her dog, she discussed the facts of what happened with AN but never told him that she had made it up.

47I summarize NR’s evidence as follows:

• NR is an early childhood educator. She has been friends with AG for ten years. NR knew JS because he was dating AG.
• NR interacted with AG and JS during their relationship. In January 2016, NR went over to their house. She noticed a bruise on AG’s shoulder. JS told her that he had hit AG because they were having a verbal argument. She did not recall his demeanor when JS told her this.
• NR worked with AG. She recalled that she had received a few text messages from AG and that she was in school but would not be teaching. AG asked NR to go see her in the bathroom closest to their classroom as soon as she arrived at school. NR’s gut told her something was wrong and she ran to the bathroom, knocked on the door, and could hear AG sobbing. NR told AG it was her and to let her in. AG let her in and NR noted that AG was on the floor crying hysterically. AG kept asking her if she and her children were all right and telling her that she had to keep them safe. AG was huddled up in the fetal position rocking back and forth. NR then yelled for help. The Vice-Principal arrived and helped them essentially carry AG to his office. AG could barely walk.
• In the office, AG was sobbing. AG was trembling and kept saying the mantra to make sure NR’s kids were safe. The Vice-Principal then called the police officer linked to the school and he called 911.
• NR did not even think that AG knew that 911 was being called at the time. AG was in fetal position on the chair and sobbing. Then AG’s cell phone rang when they were all sitting there, it was JS calling her. AG told them if she did not answer it, he would know there was something wrong and he would be angry. AG did not end up answering the cell phone.
• NR also noticed a bloody scrape on AG’s neck.
• The police arrived and the Vice-Principal took over. NR was asked to return to her classroom.
• NR was not cross-examined by the Defence.

48Police Officer Paddye McGill “McGill” testified as follows:

• McGill has been with the Ottawa Police Service for three years.
• At approximately 9:00 a.m. on June 3, 2016, she received a dispatch to attend to a school. She was met by the Principal in the lobby area and attended his office where she located AG under the desk, shaking violently, quite upset. AG had been on the phone with a police call taker at the time. After McGill introduced herself, she asked AG to take a couple of deep breaths. AG then came out and they began talking.
• McGill noticed swelling along the left side of AG’s face on her cheek. AG was crying and upset about what had happened. There was also a slight scratch to the centre of AG’s neck. Given McGill’s experience, she believed that AG was in shock. Notwithstanding, AG was able to remember the events vividly.
• McGill advised other police officers there were grounds to arrest JS for assault. She also told the dispatcher that they required medical assistance and an ambulance arrived. AG was transported to the Civic Hospital to undergo assessment and McGill accompanied her. They arrived at the Civic at around 10:15 a.m. AG was seen by medical staff. After the nurse arrived, McGill left AG. Following AG’s tests and assessments, McGill transported her to the police station. They arrived at 5:31 p.m. Photographs were taken of AG. She returned to the lobby where her parents were waiting for her and McGill told her that a detective would come and meet with her.
• McGill was not cross-examined by the Defence.

49After the evidence of AG, NR, and McGill, JS’ video statement to police was played in Court. I summarize the relevant portions of his statement as follows:

• “[S]he and I started going downhill in terms of depression, moodiness, uh, she had to take the whole month of March off from work from the School Board, because she was having some suicidal thoughts so I suggested it was her meds because my mom was on similar meds” (p. 16).
• With regards to the incident in January “I whacked her on the arm and I … I’ve had girlfriends whack me on the arm. I’ve whacked girlfriends on the arm … I didn’t look at it as a violent act, but I guess to her it was, so I guess it could be perceived as that. So, I guess, I apologized, moved on” (p. 17).
• With regards to the incident with the looney, JS explained: “You hold the looney and when you’re done talking, give me the looney or whatever, and I just kind of put it in her hand and closed her hand and whatever, and she’s like, “Ow” I’m like, “What?” She said, “You’re squeezing it too hard.” And apparently, a couple of days later, she’s like wearing a tensor bandage and said that I squeezed her arm so hard. And I’m like, “Okay.” I guess I must have” (p. 31).
• With regards to June 3, he stated: “… then yesterday, it was…like I said, these fights are just kind of going on and on, but there was no physical after that. Uh, then we were trying it again as a girlfriend/boyfriend just to try…because we had broken up. Trying to live, uh, what’s the word that’s used, ‘cohabitate’ I guess, and I honestly told her the other day, I said, “I can’t. I’m looking at a person that I love and you…you want to be my friend.” I said, “I can’t live like this…we’re two different things. So, either you want to try it again just to see where this goes, or I gotta move out, cuz it’s ... I don’t know for me emotionally I just, I couldn’t do that. I can’t be a friend with my lover” (pp. 17-18).
• “So, she said, “Well, okay, we’ll give it one more shot.” Whatever. And we lasted for a couple more days and I guess it was…three days ago…maybe four days ago, that we decided to do it. … We were giving each other the space we require” (p. 18).
• They had been sleeping in separate beds for about three weeks.
• “I’m in the process of a potential medical release with the military” (p. 18).
• When asked if JS has any other medical conditions, he responded that he has ADHD, some cortisol problems in the past, and intrinsic factor which is his inability to retain vitamin B12. At the end of the police interview, when specifically asked if he had cancer, JS told the police officer he had leukemia.
• On June 3, JS and AG watched the movie Seven Psychopaths and he then went to visit Patrick, a neighbour who lived two doors down. They ate steak together in the middle of the night.
• He “spooned [AG] the rest of the night … Just kind of fell asleep with my arm around her” (p. 25).
• The next morning when they woke up, they argued about their relationship. “where it got out of control is when she came, gave me a push and this is where I apologize, and again, I…I…I was not intentionally trying to do anything. But, but, it was like pushing made my head feel threatened so I immediately, just kind of grabbed right at her throat and pushed her down on the bed and said, “Don’t push me.” And I said it really loud to her. … So I’m still kind of draped over her. But I’m not pushing on her. I’m not hitting her. I’m not smashing her. Because I realized like, “Whoa, what the f…” … kept going back and forth in terms of her screaming insults at me and me screaming insults at her … I’m a big guy. So I mean, I might, I guess I appear threatening when I’m yelling” (p. 28).
• JS was further asked if he choked AG and/or squeeze her throat at all. He responded: “It was a little bit of squeeze, yeah. Because she was like I said, when she was [throwing] stuff at me and coming at me (inaudible) and so when she went to shove me … she had shoved me right here … not at the throat. She got close, just right here. And she pushed back and so … we were right beside the bed and so that’s my … my immediate reaction was I came forward and I grabbed her by the throat and pushed her down on the bed and said, “Don’t” and I kind of pushed with a little bit of pressure and then stopped. … [S]he didn’t look like she was coughing or choking and then when I stopped, she wasn’t coughing or choking. Her face wasn’t turning red and she wasn’t flailing any limbs or anything” (pp. 55-56).
• They fought a bit more then “it was a switch because she went into that whole, the makeup mode, I guess and then she said, “You know what…let’s …” She starts ripping her clothes off…“Let’s have sex.” So, I’m like sure, of course I’m going to have sex, man (laughs) … this is awesome … maybe this is reconciliation right? Awesome” (p. 28).
• “Well I guess ripping might not be a thing but she was just … the words I was using in our thing is I said, “Why can’t we just let our love grow. And why do we always have to argue and blah, blah, blah. And then, I was like, “You know, like, whenever we’re good we’re good and every time we’re bad, we’re bad.” And I’m saying things like that and then she’s like, “Well fine, then let’s just let our love grow. Like, come and make love to me, now, then fine, fine. Let’s do this.” And I’m like, “Okay, let’s do this … let’s make love. Why not?” Like, it’s the logical to me, right? […] Usually we … everything’s good after that” (p. 36).
• “[I]t’s been a few times where we’ve had sex after an argument or whatever and then we just say, “Well, fuck this argument and fuck everything. Let’s just fuck each other.” You know and we’re even using those words … we’ve had angry sex quite a few times … you know, at least…at least we angrily have sex and then say, well you know…what were the words she always used? She says, “Sometimes you need to make love and sometimes, you need to fuck.” (pp. 36-37).
• “My words were I said, well, why don’t we just fucking get it over, so we can actually, you know, move on, because it always works before, and blah, blah, blah, so I had … I had given the idea […] And then she said, “Fine, then let’s just fucking do it.” So, she removed her clothes. I didn’t rip them off. I didn’t even touch her … to do anything to start it. She, herself, took her own clothes off. She herself, laid down on the bed herself. And then I proceeded to do my thing” (p. 38).
• “I mean, what guy doesn’t like sex. I don’t know right? I don’t know, and so, we had sex, and again, and again, just before we were done having sex though, I mean she was all just kind of looking off somewhere else, and I was just like … you’re not even pretending to fucking enjoy this, so [forget] it…” So, I just got up and I was like, “Never mind.” There was no point finishing that (inaudible) why did she say, “Let’s have sex.” And then she’s just sitting there, looking off all pissed off…I’m like, well what the fuck did I just do?” (p. 29).
• “Well, I didn’t hold her down during sex. … I didn’t hit her during sex. … I was kissing her on the lips. I was playing with her hair. I was missionary style on top. … [S]he seemed to be kissing me back. … [H]er tongue was in my mouth. She was kissing me back. Her hand was grabbing my butt and then back of my leg and she was thrusting as much as I was thrusting and so, it wasn’t as if she was, for I guess a lack of a better word, and horrible guy’s nightmare is she wasn’t pulling the starfish on me or anything. … You know, not just lie there and taking it crap. … Spacing out as if, you know she was not enjoying what she was having. She was reciprocating I guess is the best word I could use. … She wasn’t saying “Stop.” She wasn’t saying, “Get off.” She wasn’t saying, “I don’t like this.” So what am I supposed to think? Of course, I’m going to continue” (pp. 39-40). When JS saw that AG was no longer enjoying having sex with him, he stopped. He ejaculated inside of her.
• “We only had sex the once … we’re doing it and then stop for a second and we’re having a quick conversation, but I didn’t pull out, if that’s what you’re referring to, and then we continued some more, so to me that’s considered one … session of sex, even though I guess because [we] kind of stopped for a second, it could be considered two” (pp. 43-44).
• Then JS told AG he was going to make her breakfast. He was still steaming mad. At breakfast, they said grace together, she ate her breakfast, and they played a game of cribbage.
• “… [W]here the potential knife bullshit comes in was when we were down in the kitchen. We’re getting our … lunches ready and stuff, and chopping veges. I had a knife in my hand, and she comes in and I’m just like blah, blah, blah, blah, blah, blah, and shaking and telling her the same thing. I’m moving out today. I’m so friggin pissed off and you’re always friggin playing with my emotions and blah, blah, blah and I’m not freaking holding a knife to her knees, and throat and (inaudible) and armpits or whatever. I’m not … I’m not … telling her … I’m going to have to kill you” (p. 29).
• When asked if he specifically put the knife on AG at all, JS responded “no”.
• With regards to the mark on AG’s neck that was consistent with a knife, JS stated “No, I put my hand there on her, but I … I didn’t touch her with the knife. I didn’t honestly. That, like … wow, okay, no … I … like I said, I waved it in front of her … I was … I was angry. My voice was high. I was probably saying, you know, “I don’t fucking like this and that.” But no” (p. 47).
• When asked if he put the knife on AG and moved it around her body, JS responded: “Well I didn’t necessarily do what like you were saying but like was saying, when I was waving it around, I got really friggin close, so I [may] have put it like … I don’t want to you know […] [l]ike, I may had put it like here … like, I …I may have placed it there and went, blah, blah, blah and I’m yelling at her or whatever, but I didn’t like I say, I wasn’t … I don’t recollect me intentionally doing the act you’re saying but, but in my head, I could see myself getting extremely close and pushy, while holding that knife” (p. 48).
• “I’m getting really nervous here, because I’m not … I’m not saying either or … like I’m honestly saying that I don’t remember the act of me going and place a knife on somebody but I’m also not saying it’s impossible either. We were both very pissed off. I’m waving this knife around in my hand” (pp. 48-49).
• When asked if he put the knife to AG’s throat, he stated: “Well, I’m pretty sure, because I must have…I know I was really close to her … I was definitely holding the back towards her and the pointy side towards me, like the sharp side this way, and the blunt side that way. I know that for a fact” (p. 49).
• During this time, he said to AG: “I’m so pissed at you, I could kill you.” I used those words but I … I did not say I’m going to do this. Because…cuz, face it, I’m not going to kill anyone” (p. 50).
• JS was specifically asked about a comment that he made to the effect of wanting to cut off AG’s breasts. JS responded: “No, no, no. I never said that at all. No, I did not friggin say anything about her friggin breasts getting cut off or whatever. I simply said to her, like I said, “I am so angry with you, I could kill you.” And what other comment did I use? I said, I think I commented about her fingers. I said I’ll chop off your fingers … or something, just something stupid. Like I don’t even know what I was saying. I was just so pissed off. Oh, I’ll chop off your fingers and I’m sure I didn’t say her breasts. I’m sure I didn’t say her breast. I’m sure I said her fingers. I’m sure of that” (p. 51).
• When JS was asked about cauterizing, he responded: “Oh, I said, if …I said, and to make sure that there’s no bleeding I can take a frying pan and cauterize your fingers together or whatever. Again it was just some thought that I had from a movie and somebody doing the same thing and it was more of like a … emphasis to my point of how I was so mad. I was just like, you know, if you’re going to … like obviously cauterizing any kind of wound is going to friggin hurt, right and it was just like, I said, that’s what I said … “That’s the fucking pain I’m feeling right now emotionally.” And I think I called her a bitch at that point. And then I said, “You friggin bitch.” You know. I shouldn’t have called her that because she’s not … she’s not a bitch at all” (pp. 51-52).
• JS was also asked about the fact that he was going to kill certain people in AG’s life. JS said: “No, I didn’t use the word, “kill” I said, can you imagine if … so and so disappeared from your life, how you would feel.” And again, it was me emphasizing to her … how things can be taken out of context … don’t they? … I was naming some people who were very important to her. And it’s the same kind of feeling that I’m feeling when you’re ripping yourself out from my life and I was explaining to her how her actions and her words about me have affected other people’s persona of me … I never used the word, kill” (p. 53).
• JS did not punch AG in the cheek but he punched her in the chest when he got up. JS stated that he wanted to see the book AG wrote things in because he wanted to see what bad things she has written about him. They wrestled for the book and she fell to the ground (p. 55).
• JS then drove AG to school and she kissed him goodbye. AG told him that she forgot to make her lunch and asked him to pick her up at 11:15 a.m. so that they could go to the DMV to get her new plates. When AG went to renew her plates online, she realized that JS had $325 worth of parking tickets. JS told AG that he did not have the money at that time. JS told AG he would pay them next payday. She was not very comfortable with that option but ended up by telling him that she would put it on her Visa (pp. 45-46).

50JS also testified during the trial. Since there is much duplication between his statement and his evidence at trial, I will only add the necessary evidence as follows:

• JS is currently unemployed and has been released by the Canadian military. Veteran Affairs wants to send him back to school at Lakehead University, however, he is unsure if he wants to switch to the engineering field or remain in geomatics.
• JS is residing with his parents in Thunder Bay and he has been in a relationship with a new woman.
• JS heard AG’s testimony regarding the incident in the car in December/January and he agreed with her evidence. In addition, he also agreed with her evidence regarding the incident with the loonie.
• On June 3, during the argument in the bedroom, JS was fending off shirts and hangers that AG threw at him from the closet. He did not fear her.
• When JS pushed AG by the throat, she ended up on the bed. He was frustrated and wanted her to stop throwing things at him.
• When shown the photograph exhibits of AG’s neck, JS explained that the bruises probably came from his hand on her neck and the scrape from his fingernail.
• JS and AG agreed to have sex as per their pattern. The sexual activities were consensual. JS knew so because AG reciprocated everything. They had sex twice which ended with them just talking in a better tone. They resumed having sex but AG looked away and was distant which led him to conclude she was no longer interested in having sex. JS ejaculated and stopped having sex with AG within ten seconds. JS was frustrated and told AG “if you are not going to enjoy this, at least come down for your fucking breakfast”. He felt ashamed since this is no way to talk to somebody.
• JS then got up and went to make AG’s breakfast. When AG came downstairs for breakfast, they continued their argument.
• When asked if he has “perfect recollection of exactly what was happening in that kitchen”, JS replied “I feel that I do”.
• JS did not have a knife in the bedroom. He did not trace it down AG’s body. He did not make threats towards her in the bedroom. He did not threaten her family. JS was frustrated and said “how would you feel if so and so were not in your life.” He said that he was not holding the knife. He did not threaten to use the knife to cut off AG’s breasts. He said that he would use the knife to cut off her fingers. He had no intention to follow through on the words that he said.
• Having a fight, having sex, having a fight, and playing cards was not unusual in JS and AG’s relationship.
• During his police interview, JS felt fear and anxiety.
• JS confirmed that he assaulted and threatened AG. However, he did not sexually assault her.
• JS did not have his hands around AG’s neck and she was staring into his eyes. JS’ eyes are brown or hazel, not blue.
• During cross-examination, JS confirmed that he was told he was being arrested for domestic assault, uttering threats and possibly sexual assault. He was not provided with the details of the allegations. JS was only provided with a couple of little details about the simple assault but no details about the sexual assault. He was not provided with any information about tracing certain parts of AG’s body. JS has not spoken to AG since the incident of June 3. JS felt he was guilty on some charges but not the charges of sexual assault.
• During his cross-examination, JS agreed that it was possible that when he had the knife up, it was possibly touching AG’s neck. In addition, it was possible the knife made contact with AG’s neck area. He did not see the mark on her neck at any time during the morning of June 3.
• During cross-examination, JS agreed he should be found guilty of the incident in the car when he hit AG’s arm, on the count of assault with a weapon, and of uttering threats to AG, her family, and her dog.
• JS also agreed that when he had grabbed AG by the neck, he squeezed because he needed enough grip to get her from the closet to push her down on the bed. He agreed that his behaviour could be perceived as threatening. Within a minute, JS suggested having sex to AG. She responded by taking her clothes off aggressively.
• JS did not ask AG any questions to confirm that she wanted to have sex with him. He was not concerned that AG was feeling threatened seconds earlier. He perceived her taking her clothes off as consenting to have sex with him. He took no steps to ensure AG was consenting to having sex with him.
• After they had sex for the first time, they had “pillow talk” about whether or not they should reconcile. AG was “on the fence” about reconciling and JS was frustrated and a bit upset throughout this sexual activity. For the period of under five minutes of “pillow talk”, JS did not remove his penis from AG’s vagina. There was no verbal discussion about having sex a second time.
• Downstairs, JS agreed he was still a bit frustrated and upset when he started making lunch for AG.

51After the close of the Crown’s case and at the end of JS’ evidence, his counsel brought a s. 276 CCC application. I permitted JS to proceed with his application and ordered his counsel to provide a proper written Application as per s. 276.1 of the CCC. I excluded the public as required by ss. 276.1(3) of the CCC and heard arguments. In his Application, JS sought an Order permitting his counsel to ask him questions about any prior occasion of sexual activity between he and AG where consent was communicated in a non-verbal manner by AG. In the interest of justice and in order to permit JS to adduce evidence that was necessary to make full answer and defence, I granted the order permitting JS’s counsel to ask JS questions limited to any prior occasions where AG’s consent was communicated in a non-verbal manner and permitted the Crown a right to recall AG if he chose to do so. I provided oral reasons for this decision.

52JS was re-examined by his counsel. JS testified that consent to sexual activity between him and AG was mostly communicated by action and non-verbal communication. Typically, he did not ask AG verbally if she wanted to engage in sexual activity. In addition, their sexual activity on June 3 was consistent with their past sexual relations. When JS saw non-verbal communication that AG did not want to continue having sex, he stopped. AG did not appear to be frightened during their sexual activity.

53Lastly, I summarize AN’s evidence as follows:

• AN is currently employment in the Canadian Forces as a pay clerk in Human Resources.
• AN never testified in a criminal trial like this matter before.
• AN does not have a criminal record.
• AN met JS at group therapy in the hospital and previously, he lived two doors down from JS. AN and JS car-pooled to group therapy, shared their experiences, had lunches just the two of them and at times with their families and were Facebook friends.
• The last time AN saw JS was a couple of years ago.
• AN also knew AG since he had met her at the dog park. He considered AG his dog park friend.
• AN was aware of the relationship between JS and AG. JS had told AN that he was going to dinner with his son’s teacher.
• AN had hung out with both JS and AG once to help them move into their townhouse.
• AN had seen on Facebook that JS had posted that his relationship had come to an end. At that point, AN did not know anything more about it.
• Two years ago, JS messaged AN and told him about the allegations against him. JS told him about the sexual assault allegations, something to do with a knife and he did not recall further details.
• AN knew that AG’s allegations of sexual assault against JS had something to do with the breakup of their relationship.
• During the summer of 2016, AN saw AG at the dog park and she told him her “version of the story”. This conversation took place after he received the details from JS. AN remembered he asked AG about the incident and she told him her side of the story. He did not remember all of the details. She told him that the military paid for her to move out of the house and the words “I made it up” came out of her mouth. AN thought that AG was talking about her allegations against JS. This really stuck out for him, he was shocked when AG told him “I did not think that she would say that to me, she knew that [JS] and I were friends and it shocked me.” AN later talked about it to his sergeant at work because he was not sure what he should do with this information. He did not report it to anyone. “Life goes on, I had not seen both of them for a long time, out of sight out of mind”.
• One year ago, JS messaged AN. AN told JS about his discussion in the dog park with AG.
• Since his discussion with AG, AN has only seen her once more in the dog park.
• AN said that he did not know JS, the latter owed him nothing and he would not go to a courtroom and lie. In addition, AN was not told what to say or do in Court.
• During cross-examination, AN confirmed that he did not feel uncomfortable asking AG about her being sexually assaulted by JS. A lot was said during his discussion with AG. She controlled much of the discussion. Their discussion lasted 10-15 minutes. He was not able to provide the context of when AG made the comment that she had made it up. When AG was asked if it was possible AG said to him: “I hope no one thinks that I made this up”, he responded at first that he did not hear her say that and then he agreed with counsel that it may be possible that AG said that. AN did not report this conversation to the police.

54AG was not recalled as a witness.

55In addition to the oral evidence, four exhibits were tendered into evidence:

• Exhibit 1 - a set of photographs taken by Detective Leduc on June 3, 2016;
• Exhibit 2 - a set of photographs taken at the Civic Hospital on June 3, 2016;
• Exhibit 3 - the CD and transcript of JS’ interview by Detective Riopel on June 4, 2016; and,
• Exhibit 4 – AG’s medical records created by Nurse Wilzer from the Civic Hospital.

56The photographs in Exhibit 2 show a red mark on the middle of AG’s front neck in addition to an approximately 3cm long vertical red linear mark. Furthermore, photographs show a red mark on the middle of AG’s front left cheek.

57The photographs in Exhibit 1 show a red mark on the middle of AG’s front left cheek. These photographs, taken at the police station, show a red oval mark in the middle of AG’s front throat in addition to the red linear mark. It provides a better view of the oval mark.

58Exhibit 3 consists of the Physical Examination Form filled out by Nurse Wilzer at the Civic Hospital upon her examination of AG at 1:00 p.m. on June 3, 2016. The Form lists the following information:

• tenderness 3/10 to AG’s front left side in the area between her breast and shoulder, no obvious injury or abrasion noted;
• a red abrasion and tenderness to palpation on left cheek;
• a 3 cm linear cut with redness and inflammation to the front left side of AG’s neck; a 3x2 cm red abrasion in the centre of AG’s front neck; and an area on AG’s front right side of her neck that was swollen and tender to palpation;
• AG’s labia majora and minora showed no lacerations or abrasions, redness throughout; her posterior fourchette and introitus had three abrasions posterior fourchette at 6-7 o’clock; her vagina was normal; her cervix was round and smooth; no injuries noted exterior to the anus and rectum; the left and right vaginal walls were normal and there was a small amount of white discharge; and,
• In a drawing of the vaginal area, it is noted 4/10 tender to palpation and abrasions 2x1 cm and 1x0.5 cm.

59The Injury Diagrams noted tender 4/10 to palpation in the front-centre of AG’s neck.

Applicable Law

60With regard to the s. 271 of the CCC count #3, sexual assault, in order to find JS guilty, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

1. that JS intentionally applied force to AG;
2. that AG did not consent to the force that JS applied;
3. that JS knew that AG did not consent to the force that he applied; and
4. that the force that JS applied took place in circumstances of sexual nature.

61With regard to ss. 272(1) of the CCC count #8, sexual assault with a weapon, in order to find JS guilty, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

1. that JS intentionally applied the force to AG;
2. that AG did not consent to the force that JS applied;
3. that JS knew that AG did not consent to the force that he applied;
4. that a weapon was involved; and
5. that the force that JS applied took place in circumstances of a sexual nature.

62In this matter, the Crown argues that as per ss. 265(3)(b) of the CCC, JS did not obtain AG’s consent. Sub-section 265(3)(b) reads as follows, “[f]or the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (b) threats or fear of the application of force to the complainant or to a person other than the complainant”.

63In addition, the Crown argues that ss. 273.2(b) of the CCC applies in this matter. Sub-section 273.2(b) reads as follows: “[i]t is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge where, (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.

64I will turn to the review of the applicable case law in this matter.

65During this trial, there were contradictory versions of events regarding the sexual activity between JS and AG on June 3. Consequently, I must evaluate the evidence as per the instructions at para. 28 of R. v W.(D.):

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

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

Third, 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.

66The Court can accept all, a part, or none of a witness’ evidence. Inconsistencies do not automatically lead the Court to dismiss the witness’ evidence. Even if there are inconsistencies in the evidence, the Court can accept the witness’ evidence above all reasonable doubt.

67The accused does not have the burden of explaining the complaints against him (see: R. v. S.(W.), [1994] 18 O.R. (3d) 509 (C.A.)). In addition, the accused does not have the burden of showing that the complainant had a motive to fabricate evidence (see: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 48 and 53).

68In R. v. B.(L.), the ground of appeal dealt with whether or not the trial judge erred in attributing to the appellant a motive to lie as a reason for disbelieving his evidence. The Court of Appeal for Ontario allowed the appeal and concluded as follows:

7 The impugned passage in the trial judge’s reasons in this case, in my opinion, goes beyond the permissible consideration of the accused’s interest in being acquitted, as one factor to be taken into account when weighing his testimony. It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur [emphasis added].

69In R. v. Nimchuk, the Court of Appeal concluded that the trial judge had committed an error when he found the accused guilty of fraud. The trial judge found that in order to acquit the accused, he had to conclude that the complainant “framed him” which led to placing the burden of proof on the accused. The trial judge appeared to think that he was faced with a choice between two alternatives, to accept the testimony of the accused, and to conclude that the complainant had framed him or to accept the complainant’s testimony, which required conviction. The Court of Appeal concluded that there was a third possibility: “if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (para. 7).

70In the Court of Appeal’s decision in R. v. M. (A.W.), [1993] O.J. No.901 (C.A.), one of the grounds of appeal related to whether or not the trial judge failed to appreciate that he did not have an obligation to make a choice between believing the complainant or the appellant. The Court of Appeal concluded as follows:

2. Although a lack of motive to lay a false charge or give false evidence is a proper matter to be considered in determining the credibility of a person making the charge or giving the evidence, there is no burden on an accused to prove a motive or an explanation for a complainant making such a charge or giving such evidence. The reasons of the trial judge indicate that he was placing the burden on the appellant to prove that the complainant was attempting to falsely convict him, or in the words use in Nimchuk, supra, at p. 210, “framing him”. He erred in so doing [emphasis added] (para. 28).

71In R. v. M. (J.) (26 February 2018), Cornwall, 3911-998-16-C1018, (OCJ), Justice Kinsella reviewed the fundamental principles. A criminal trial is not a credibility contest between the accused and the complainant (para. 24). Justice Kinsella also reviewed W.(D.). and provided the following at para. 26:

The case of W.D. is essential in reinforcing the fundamental principle that an accused cannot be found guilty simply because the court prefers the evidence of the complainant. As noted by the Court of Appeal in R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210:

It is elementary that a complainant’s credibility cannot be established by assuming the accused’s guilt. Nor can an accused’s evidence be rejected simply because the evidence of a complainant is accepted. W.(D.) precludes this “either/or” approach to the assessment of credibility. Instead, under the third step of W.(D.), the trial judge must ask whether, although she may not believe the accused’s evidence, a reasonable doubt arises on the whole of the evidence that she does accept (at para 42.).

72In R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210, the Court of Appeal upheld a decision in which the trial judge relied on, in part, the complainant’s tearful demeanor and tone of voice at certain parts of her testimony. The Court of Appeal stated the following:

It is well-established that testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility: see e.g., R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201 (Ont. C.A.), at para. 112. In this case, the trial judge provided cogent reasons as to why he viewed the demeanour of each witness, at specific points in their testimony, as significant. Moreover, demeanour was only one of many factors considered by him in his assessment of each complainant’s credibility and reliability (at para. 34).

73Furthermore, the Court of Appeal dealt with the issue of demeanor evidence in R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675. In this matter, the trial judge attached considerable weight to the complainant’s demeanor. The Court of Appeal stated as follows:

85 … It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

89 I agree with the suggestion contained at the conclusion of the Court’s analysis in the State Rail Authority decision that it is important for trial judges to bear in mind that, to the extent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations as demeanour evidence.

74Moreover, the case law confirms that while demeanor is a relevant factor in a credibility assessment, demeanor alone is a notoriously unreliable predictor of the accuracy of the evidence provided by a witness. In addition, demeanor alone is not sufficient to convict when there are significant inconsistencies and conflicting evidence in the matter (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 OR (3d) 1, at para. 66).

75With regards to the issue of consent in a sexual assault matter, this Court was referred to R. v. Ewanchuk, [1999] 1 S.C.R. 330. The following passages from Ewanchuk are helpful regarding the issue of consent:

26 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.

36 To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding the complainant’s ostensible consent or participation. As enumerated in s. 265(3), these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective.

37 The words of Fish J.A. in St-Laurent c. Québec (Juge de Cour du Québec) (1993), [1994] R.J.Q. 69 (Que. C.A.), at p. 82, aptly describe the concern which the trier of fact must bear in mind when evaluating the actions of a complainant who claims to have been under fear, fraud or duress:

“Consent” is . . . stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will.

38 In these instances the law is interested in a complainant’s reasons for choosing to participate in, or ostensibly consent to, the touching in question. In practice, this translates into an examination of the choice the complainant believed she faced. The courts’ concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s. 265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force.

39 The question is not whether the complainant would have preferred not to engage in the sexual activity, but whether she believed herself to have only two choices: to comply or to be harmed. If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established. The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant's claim that she consented out of fear, the approach is subjective.

40 Section 265(3) identifies an additional set of circumstances in which the accused’s conduct will be culpable. The trial judge only has to consult s. 265(3) in those cases where the complainant has actually chosen to participate in sexual activity, or her ambiguous conduct or submission has given rise to doubt as to the absence of consent. If, as in this case, the complainant’s testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused’s perception of the encounter and the question of whether the accused possessed the requisite mens rea [emphasis added].

76In addition, the following passage from R. v. M.L.M., [1994] 2 S.C.R. 3, is also helpful regarding the issue of consent:

2 The Court of Appeal allowed the appeal from conviction on the ground that the decision of the trial judge was unreasonable and could not be supported by the evidence. In our opinion, taking into account all of the circumstances including the evidence of the complainant which was accepted by the trial judge, we are of the view that there was evidence upon which a jury, properly instructed and acting judicially, could reasonably convict. The trial judge was in the same position. The majority of the Court of Appeal was in error in holding that a victim is required to offer some minimal word or gesture of objection and that lack of resistance must be equated with consent [emphasis added].

77With regards to the defence of mistaken belief, the Defence relies on R. v. Knox, 2017 SKCA 8, [2017] S.J. No. 30. The Court of Appeal for Saskatchewan summarized the law on this issue as follows:

74 The law with respect to cobbling together portions of the evidence to create a defence was recently summarized in R v Williams, 2013 ABCA 110:

[13] L’Heureux Dubé J. warned us that often one cannot cobble or splice together two diametrically opposed accounts of the facts, to create evidence of honest belief in consent. Then the issue is credibility, not mistaken belief: R. v. Park, supra (paras 19, 25). The two accounts here of what happened when the complainant was lying down on her couch were irreconcilable.

75 In R v Park, [1995] 2 S.C.R. 836 (S.C.C.), L’Heureux-Dubé J., on behalf of the majority, addressed the question of whether a defence of mistaken consent should be put to the jury where the stories told by the accused and the victim are diametrically opposed:

[26] To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused’s conduct demonstrates recklessness or wilful blindness to the absence of consent. On the other hand, courts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent.

76 In R. v. Esau, [1997] 2 S.C.R. 777, Major J., for the majority, adopted this approach and reiterated the key issue is whether it is possible to cobble together another coherent version of the facts from the stories that are diametrically opposed and the other evidence:

[16] The parties’ testimony is usually the most important evidence in sexual assault cases. In Osolin, supra, there was debate whether, if the parties’ testimony were “diametrically opposed”, the defence of mistake should be put to the jury. In the present case, not only was the testimony not “diametrically opposed”, but even on a slightly stricter test, the parties’ stories may be “cobbled together” in an entirely coherent manner. In Park, supra, L’Heureux-Dubé J. stated at para. 25:

... the question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, a reasonable jury could cobble together some of the complainant’s evidence and some of the accused’s evidence to produce a sufficient basis for such a defence. ... Put another way, is it realistically possible for a properly instructed jury, acting judiciously, to splice some of each person’s evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent?

Assessment of the Evidence

78I begin by assessing the witnesses’ evidence starting with AG’s evidence. She gave her evidence in a forthright manner. She cried at times during her testimony. She began by testifying about the incident in the car and the incident with the loonie. AG’s version of events was corroborated by JS. In addition, NR also corroborated AG’s evidence when she testified that in January 2016, when she went over to AG and JS’ house, she notice a bruise on AG’s shoulder. JS told her that he had hit AG during an argument.

79The Defence attacked AG’s capability to remember the details of what occurred on June 3. I find that overall, she provided sufficient details. AG did not recall how she got from the closet to the bed or exactly when JS had the knife. These issues do not go to the core issue of whether or not AG consented to the sexual activity. She testified that at times, minor details of certain conversations would elude her but concepts and major events were still intact. A medication change could make the little details disappear but not provide memory loss. This evidence was not contradicted. In addition, she could not recall if they said anything from the closet to the bed. Given the circumstances, it is not unreasonable that she could not recall how she got from the closet to the bed and or exactly when he had the knife. AG clearly testified that JS came into the bedroom and had the knife at the beginning of the sexual assault on the bed when he touched the various parts of her body.

80The Defence points to a contradiction in AG’s evidence regarding the colour of JS’ eyes. AG testified that when JS first had her on the bed from the closet and was strangling her, he told her to look into his eyes and she saw an intense blue. JS testified that his eyes are brown or hazel. Although an inconsistency, this evidence does not detract from her overall evidence regarding her fear and the sexual activity with JS.

81After pushing AG in the closet, JS, by his own admission, grabbed her by the neck, squeezed her neck and pushed her from the closet onto the bed. The Crown characterized JS’ actions as a “choke slam”. JS choked AG and slammed her on the bed. AG testified that JS also pulled her hair and punched her on the left cheek with enough force to leave slight bruising and it ached. He then strangled her with both of his hands on the bed until she could not breathe or talk, AG testified that JS told her to get up and take her clothes off. She was afraid it would get worse if she did not listen to his directives. Although she did not say “no”, AG testified that she did not consent to the sexual activity. She was crying and shaking her head. After the sexual activity, JS left and AG got up, got dressed and got ready for work. I accept AG’s version of these events.

82McGill testified that she noticed swelling along the left side of AG’s face on her cheek. In addition, photographs 8162 to 8166 taken at the hospital (Exhibit #2) and photographs 8871 and 8872 taken at the police station (Exhibit #1) show an oval red mark on the middle of AG’s neck. In addition, AG’s medical evidence on the Physical Examination Form notes a red abrasion tender to palpation on her left cheek, she had a swollen neck on the right side and was tender to palpation. This external evidence corroborates AG’s evidence that JS punched her on the left cheek and grabbed her by the neck.

83Afterwards, JS returned to the bedroom with a knife while AG was still there. AG testified that he was pointing it at her, she took her clothes off. After they were on the bed, JS’s knife then made contact with her throat. JS directly touched certain parts of her body with the knife. NR testified that she noticed a bloody scrape on AG’s neck. McGill also testified that she noticed a slight scratch to the centre of AG’s neck. Photographs 8163 and 8164 taken at the hospital (Exhibit #2) show a red vertically linear mark, approximately 3cm long, located in the front-centre of AG’s neck. In addition, the Physical Examination Form notes a 3 cm linear cut with redness and inflammation on her neck. This external evidence corroborates AG’s evidence that JS put the knife to her neck.

84During the second incident of sexual activity, AG testified that JS told her to pretend to like it. AG pretended to do so by kissing him back and kissing his arms. However, she was still shaking her head and crying. She was terrified of what would happen if she said no. It is important to note that JS admitted that when he was yelling at AG, she could have perceived it as being threatening.

85AG testified that when she arrived to school, she was cowered in a washroom and was shaking and bawling. In addition, NR testified that when she entered the washroom, AG kept telling her that she had to ensure that her kids were safe because JS told her if she talked to anyone, he would kill a list of people including NR’s children. NR testified that when she arrived at the washroom, AG was sobbing. She was on the floor crying hysterically and was repeating the mantra to NR to ensure that she and her children were safe. McGill also testified that when she arrived at the school, she found AG under the desk; AG was shaking violently and was quite upset. In her experience, she believed that AG was in shock. Notwithstanding this, AG was able to remember the events vividly. This evidence was not contradicted.

86The Defence questioned AG about her discussion with AN in the dog park. She confirmed that she discussed the facts of what happened with AN and that he was a mutual acquaintance of hers and JS’. AG testified that she never told AN that she made up the allegations against JS.

87The Defence argues that AG’s version of events did not occur and this Court cannot be satisfied beyond a reasonable doubt of AG’s credibility and reliability. I disagree. When providing her evidence, AG was forthright, her evidence was consistent with external evidence and she was not shaken in cross-examination. In addition, aspects of her testimony were corroborated by the evidence of physical injury.

88When I review AG’s evidence as a whole, which is corroborated by external evidence, I accept her evidence. I find her to be a credible and reliable witness.

89I will turn to JS’ evidence. JS agreed with AG’s testimony about the incidents in the car and the loonie.

90There were quite a few inconsistencies in JS’ testimony. JS testified that on the morning of June 3, when AG shoved him in the closet, his head felt threatened and his immediate reaction was to grab AG by the throat with a little bit of squeeze and pushed her down on the bed. He stated that he may have appeared threatening when he was yelling.

91During his police interview, JS said that AG initiated the sexual activity. However, during his testimony, he said that he had initiated the sexual activity with AG. During his interview, he told the police officer that he had pushed AG on the bed by the neck, they then argued on the bed, and she proceeded to “[rip] off her clothes” and said “[l]et’s have sex”. Afterwards, when the police officer pressed him about ripping her clothes off, JS conceded “ripping might not be a thing”. Instead, he stated that they decided to “let their love grow”. During his testimony, JS said that within a minute he had grabbed AG by the neck and threw her onto the bed. He may have sounded threatening when he was yelling at AG. AG then got up, took off her clothes and initiated sexual activity. I reject his version of these events.

92JS testified that AG consented to having sexual activity because she removed her clothes herself, he didn’t rip them off, she laid herself down on the bed, she kissed him back, her hand was rubbing him and she was thrusting. “[S]he wasn’t pulling the starfish on me or anything”. AG did not tell him “[s]top”, “[g]et off” or “I don’t like this”. JS further testified that when he thought she was no longer enjoying having sex with him, he stopped, but not before he ejaculated inside of her. I reject JS’s evidence on this point.

93After I granted the s. 276 CCC application, and in response to questions, JS testified that in the past when he and AG had engaged in sexual activity, consent was mostly communicated by action and non-verbal communication. JS typically did not ask AG verbally if she wanted to engage in sexual activity. Their sexual activity on June 3 was consistent with their past sexual relations. However, it is important to note that JS did not testify that it was common for him to physically assault or threaten AG during their past sexual activities.

94With regards to the knife, I do not accept JS’ evidence. He testified that he had a “perfect recollection” of what happened in the kitchen. It is clear from his cross-examination that he did not have “perfect recollection”. During his police interview, he testified that he was chopping vegetables when AG came into the kitchen. He was “pissed off” and shaking the knife at her. “I’m not freaking holding a knife to her knees, and throat and (inaudible) and armpits or whatever”. During cross-examination, JS agreed that he did not know details of the allegations of sexual assault made against him by AG. He had not been provided with information that it was alleged he had traced her body parts with the knife. However, he talked about putting a knife to AG’s body parts without having known the details of these allegations. In addition, during his cross-examination, JS conceded that his knife could have made contact with AG’s neck.

95When JS was shown the photographs of AG’s neck, he conceded that the bruises were probably from the result of his hand on her neck. I reject his testimony that his fingernail could have caused the cut on AG’s neck and that she may have injured her cheek when they were struggling for the book. This evidence is not consistent with the overall evidence.

96The Defence argues that JS’ evidence was unshaken in cross-examination. The Defence also argues that JS’ evidence went largely unchallenged by the Crown. I disagree. JS was cross-examined about the contradictions and inconsistencies between the evidence provided in his police statement and the evidence presented during the trial and more specifically about the circumstances surrounding the sexual activity between him and AG on June 3. The Defence argued that any inconsistencies in JS’ evidence were not of a magnitude that would require a Court to dismiss his evidence entirely. I disagree. For example, there were contradictions in JS’ testimony about who initiated the sexual activity, when he had the knife and what he did with the knife. When I review his inconsistencies and contradictions, I do not accept JS’ version of events regarding the sexual activity between him and AG on June 3.

97JS told police that he did not say to AG that he would cut off her breasts and cauterize them. Rather, he told the police that he said that he would chop off AG’s fingers and cauterize them. I reject this evidence.

98Based on the material inconsistencies in JS’ police statement and his testimony at trial, I do not accept his evidence regarding the sexual activity between him and AG on June 3.

99With regards to the other witnesses called by the Crown, there is nothing that leads me to believe that NR and McGill are nothing but credible witnesses. Their evidence was unchallenged by the Defence.

100With regards to AN, he and JS attended group therapy together, they car-pooled together, shared their experiences, and had lunches together. At one point AN testified that he did not know JS, JS owed him nothing, and he would not lie for him. AN said that he was shocked when AG told him that she “made it up”. However, it was clear that when AN testified, he tried to minimize his relationship with JS. His own words contradicted his assertions. During his testimony, AN said “I did not think that [AG] would say that to me, she knew that [JS] and I were friends”.

101AN also testified that he talked to his sergeant about AG’s alleged comments to him. However, he confirmed during cross-examination that he did not report it to police. His explanation was: “Life goes on, I had not seen both of them for a long time, out of sight out of mind”. Overall, I reject AN’s evidence.

102I now turn to the three steps in W.(D.). First, I do not believe the evidence of JS regarding the sexual activity on June 3. Second, I do not believe the testimony of JS and I am not left in reasonable doubt by it. Third, even if I am not left in doubt by JS’ evidence, on the basis of the evidence that I accept, I am convinced beyond a reasonable doubt by the evidence of JS’ guilt with regards to counts #3 and #8. I do not accept JS’ evidence regarding the sexual activity between him and AG on June 3. Not only is AG’s evidence credible, it is corroborated by external evidence as discussed above.

103I also reject the defence of mistaken belief. JS testified that in the past, when he and AG engaged in sexual activity, she did not provide verbal consent. However, as explained earlier, I do not accept JS’ evidence regarding the sexual activity that took place on June 3. I am not left with any reasonable doubt. For example, JS grabbed AG by the throat and pushed her onto the bed. During his testimony at trial, JS agreed he was threatening, yelling and he testified that within one minute, AG jumped up, took off her clothes, and said “[l]et’s have sex.” I find that this is not what JS referred to as incidents where he and AG had “angry sex” in the past; this was sexual assault within the meaning of s. 271 of the CCC. The same can be said with regards to the second incident of sexual activity. Fearing for her safety and the lives of her loved ones, AG went along with the sexual activity. More specifically regarding the second sexual activity, JS had just assaulted AG shortly beforehand, he came back with a knife, threatened to cut off her various body parts and threatened to kill some of her family members, friends and her dog. I want to be clear, AG’s actions did not constitute consent to have sexual activity with JS. Silence does not equal consent in this case. I find that the passage in Ewanchuk applies to this matter: AG “did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear”. I accept AG’s evidence that she was in fear for her safety and the safety of her loved ones. She was too terrified to fight back.

104Overall, based on all of the evidence as a whole, I am convinced beyond a reasonable doubt that JS is guilty of counts #3 and 8.

Conclusion

105Based on the invitation by the Defence and JS’s admission of guilt during his testimony, I find him guilty on charges #1, 2, 4, 5, 6, and 7.

106Based on my findings regarding the overall evidence with regard to the charge s. 271 of the CCC count #3 (sexual assault), I find that the Crown has met its burden and has proved beyond a reasonable doubt that JS is guilty this count. The Crown has proved beyond a reasonable doubt that JS intentionally applied force to AG, AG did not consent to the force that JS applied, JS knew that AG did not consent to the force that he applied and the force that JS applied took place in circumstances of a sexual nature.

107Based on my findings regarding the overall evidence with regard to s. 272(1) of the CCC count #8 (sexual assault with a weapon), I find that the Crown has met its burden. The Crown has proved beyond a reasonable doubt that JS intentionally applied force to AG, AG did not consent to the force that JS applied, JS knew that AG did not consent to the force that he applied, JS used a weapon, more specifically a knife, and the force JS applied took place in circumstances of a sexual nature.

Justice M. O’Bonsawin Released: October 22, 2018

Appendix

The following was added to page 1:

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.