COURT FILE NO.: CR-19-7-125

DATE: 20191108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.M.

Defendant

Andrew Max, for the Crown

Fielding Burgoyne, for the Defendant

HEARD: October 28-31, 2019

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

SPIES J. (Orally)

Introduction

[1] P.M. stands charged with committing a sexual assault on N.D. in the City of Toronto on November 30, 2017, contrary to s. 271 of the Criminal Code. He also stands charged with committing an assault on N.D. contrary to s. 266 of the Criminal Code on November 15, 2017, and on the same date knowingly uttering a threat to her to cause her bodily harm, contrary to s. 264.1(1)(a) of the Criminal Code. P.M. re-elected to be tried without a jury. He pleaded not guilty to all charges.

The Issues

[2] I only heard from N.D. and P.M., who each gave very different versions of the alleged assaults. In addition, with the cooperation of defence counsel, the Crown filed various photos and videos on consent, as well as agreed statements of fact, which eliminated the need to call several witnesses and considerably shortened the length of the trial. N.D. and P.M. speak mostly French to each other, although they often break into English. As a result, a video with audio taken by N.D. on her cell phone was translated into English and on occasion they both obtained the assistance of interpreters while testifying. The videos taken by cameras in the apartment building do not have any audio.

[3] With respect to the alleged assault on November 15^th^, P.M. admits grabbing N.D.’s wrist without her consent, during an argument when he was trying to get her cell phone in order to stop her filming him. He denies the other assaultive behaviour alleged by N.D. on that date. As for the alleged threat, the words spoken by P.M. are caught on the video made by N.D. and so the issue is whether or not the elements of that offence have been made out.

[4] With respect to the alleged sexual assault, there is no dispute that N.D. and P.M. had intercourse on November 30, 2017 in her bedroom – the issue is consent. N.D. alleges being forced by P.M. to allow him to perform oral sex on her and to forced vaginal intercourse. P.M. alleges that the oral sex and intercourse were entirely consensual and that it was in fact N.D. who initiated having sex.

Background evidence and preliminary findings of fact

[5] N.D. and P.M. met in 2008. At that time N.D. was living in an apartment at M Avenue in the City of Toronto with her son. This is a low-rise apartment building that is set back from M Avenue on the west side. N.D. has lived in that building from November 2007 until the present. The main entrance of the building is accessed by a laneway between two houses on M Avenue. There are two unlocked doors at the entrance that lead into a small lobby. Inside the lobby are locked mail boxes for the tenants and a buzzer for each tenant that allows a visitor to buzz an individual apartment and speak to someone inside their apartment and if they consent, be allowed inside the building. The back of the building also has an entrance with a small lobby and that part of the building faces H Street. Tenants need a key to the building to access the inside of the building from both the front and rear entrance.

[6] N.D.’s apartment is a two-level apartment, which is on the third and fouth floor of the building. It has a kitchen and a dining/living room area on the main floor and a bathroom and two bedrooms on the second floor. There is one entrance on the main floor of the apartment - a metal fire door with a peephole. On the second floor of the apartment there is a second fire door entrance with a peephole, which leads directly into N.D.’s bedroom. Both doors open up into a hallway. There are entrances to two other apartments on either side of the second floor entrance close to N.D.’s unit.

[7] N.D. lives in the apartment with two children; her son from a former relationship who is now 14 years old and J., who she had with P.M., who is now six years old. J. is called “cookie” by his parents. N.D. testified that P.M. is behind in child support for J.. I considered this evidence only to the extent it was relevant to determine why she may have acted as she did on November 15^th^. P.M. testified that N.D. relies on him for money as she does not get any money from her older son’s father. From the evidence that I heard, P.M. will pay for clothing and other items for his son although N.D. does not always agree on how he spends the money.

[8] N.D. testified that she and P.M. have had an on and off again relationship from the beginning and that they never formally lived together. As far as she knew, P.M. has always had his own place. In 2008 they tried to get a unit together but P.M. would not sign the lease. P.M. confirmed that N.D. pays the rent for her apartment, that her name is on the lease and that his name has never been on the lease. At the time of the alleged assaults he did not have a key to the building or the apartment although N.D. testified she was not sure about this.

[9] According to P.M., he and N.D. did live together at various times. He testified that N.D. did not move into the M Avenue address until the summer of 2010 and he moved in to live with her in March of 2011 and he continued living there until sometime in 2016. This was not put to N.D. and had it been, I expect she would dispute this, although she did say that she and P.M. might live together for 60 days or so in the sense that P.M. “stayed” with her. According to N.D., after a period of time they always had a major breakup and P.M. would go back to his place and not show up for four or six months but eventually he would come back and say that he had realized his mistake. Although N.D. said that she did get mail for P.M. at her apartment, he told her that he lived on W Street in Toronto with a friend.

[10] In any event there is no dispute that N.D. and P.M. were not living together in 2017 or at the time of the alleged assaults. P.M. testified that at that time he was living in a rooming house in Brampton. N.D. denied knowing this and testified that in November 2017 she did not know where P.M. was actually living. She knew that he had a Mississauga or Brampton address but she thought that was just for his mail.

[11] N.D. referred to what she called “protocols” in her evidence. She testified that she made these protocols in order to keep P.M. away and out of the apartment. She said that he has a habit of showing up unannounced and she did not want him in the apartment. At other times she testified that if she does not let him into the apartment, he hangs around the building and then comes in later. N.D. also complained that P.M. does not leave when she wants him to. One protocol she testified about was that when her older son left the apartment he had to be sure that he had his key and he locked the door. I will come to some others.

Evidence with respect to the alleged assault and threat on November 15, 2017 and preliminary findings of fact

[12] There is a conflict in the evidence as to whether or not P.M. was with N.D. on the night of November 14^th^. Not much turns on this. N.D. testified that a couple of days earlier, P.M. had told her that he wanted to see J. but that he came to the apartment in the morning of November 15^th^. She remembered being furious when he arrived because he came early before J. came home from school, despite the fact he had said he was going to take J. to the park. She testified that she was “ready for a fight”. According to P.M. he spoke to N.D. on November 14^th^ and she told him that J. needed new winter boots. P.M. said that he told N.D. that he would pick J. up after school and take him to buy boots. P.M. testified that he did so and that he bought J. a pair of boots and three pairs of Jordan running shoes (“Jordans”). According to P.M., he had dinner with N.D. and the boys, did some homework with J. and then he and N.D. watched a movie and went to bed.

[13] When it was suggested to N.D. in cross-examination, that P.M. had spent the night of November 14^th^ at the apartment, she testified that she did not know that. She was not sure if he brought the boots and the Jordans the night before. N.D. testified that what she remembered was different from her statement and she did not know what that meant. She was not asked to clarify this, save that she said that what she testified to at the trial was from her memory. N.D. explained the confusion by stating that P.M. had done this twice to her in November. I did not take that evidence into account as he is not charged with a second assault. Later in her evidence N.D. testified that they were both getting dressed the morning of the 15^th^ and so I find that P.M. was with N.D. on the night of November 14^th^. As I have said, nothing really turns on this save perhaps to the reliability of N.D.’s memory about the events before this argument. She admitted that she had trouble remembering the beginning of the argument.

[14] Although there is no dispute that N.D. and P.M. had a big fight on the morning of November 15^th^, there is also a conflict in the evidence as to how the fight started. Again, nothing much turns on this save for how it might impact on my assessment of credibility and reliability of these witnesses. N.D. recalled that P.M. wanted to have sex with her and she “kind of escaped having sex with him”. She testified that they were both putting on their clothes upstairs and that when she refused to have sex, P.M. began to insult her and he was “vomiting out angry words” yelling at her that he would show her how he did not care about her or J. and that she would never see his face again.

[15] According to P.M. the fight did not start because of sex. He testified that on the morning of the 15^th^ he woke up and took J. to the school bus. Once he returned, he told N.D. that he was going to go out. She told him to wait while she took a quick shower so they could leave together. After her shower, P.M. testified that N.D. asked him for the receipt for the boots he had bought for J.. He testified that in the past when he gave N.D. the receipt she would return things that he had bought for his son and keep the money. He denied that she ever did this in order to exchange something for a bigger size. He testified that when he asked N.D. why she needed the receipt, she told him she wanted to get a bigger size for J.. P.M. questioned this and told her that the boots he bought were already a little bit big for J.. According to P.M., N.D. then started yelling at him when he told her why he would not give her the receipt.

[16] When it was put to N.D. that the fight was about the boots, N.D. laughed and denied this suggestion. She also denied P.M. saying he was not going to give her the receipt because he accused her of her returning items that he bought for J. and keeping the cash. According to N.D., it was P.M. who was going to return the boots and shoes and keep the cash because she refused to have sex with him. N.D. testified that this had happened before with even things such as milk or apple juice.

[17] When it was put to N.D. that she told P.M. that the boots were too small and that she wanted the receipt so she could get a larger size, N.D. admitted that she had a habit of doing that but she said that she did not do so on this occasion. She testified that if she did return something that P.M. had bought for J. that she would get something else for J.. She added that J. did not need three pairs of Jordans, all the same size, but he did need a lunch box. At one point in her evidence N.D. testified that it made no sense since the Jordans were all the same size - she had more important things that J. needed. N.D. admitted that she would sometimes exchange things P.M. bought for bigger sizes or things J. needed like T-shirts. N.D. also testified that P.M. does not pay child support and yet will buy his son three pairs of Jordans in all the same size. She said it was one thing for him not to pay child support but it was another thing to tell J. that here were his winter boots and then take them back. I did not consider the evidence of N.D. that P.M. did not pay child support as that was not relevant to my decision, save that it informed my decision as to why the fight started.

[18] The reason why the fight started however, is not important to the issue of whether or not P.M. assaulted N.D.. In any event, on this factual issue I prefer the evidence of N.D.. I can understand why she might be frustrated with P.M. buying three pairs of Jordans for their son, all the same size, given she was poor and J. needed other things. Had P.M. testified that N.D. asked for the receipt for the shoes that would have made sense. Given the time of year J. needed winter boots and so I find it unlikely that she was going to return them. I should add however, that although I prefer N.D.’s evidence on this point, I did not consider the fact that they may have had a fight after she refused to have sex with P.M. when I considered the charge of sexual assault and the issue of consent.

[19] The fight began in earnest once N.D. and P.M. were both downstairs. She testified that when they got to the bottom of the stairs P.M. was still yelling at her. When she was in the hallway she decided she wanted to record him on her cell phone so she could show it to P.M. so he could get a picture of himself “when he goes on a rant”. She wanted him to see how ridiculous he looked. According to P.M. he told N.D. to call or text him what size she wanted him to get and he was going to do the exchange himself. To this N.D. told him that she was going to tell everyone that he would buy stuff for his son and then take it back. He was very upset when he heard that.

[20] N.D. started filming P.M. on her cell phone when he was standing in front of the hall closet with the box of boots that he had bought for J. in his left hand. He was looking for the third pair of Jordans that he had also bought for J.. When P.M. looked back he saw that N.D. was recording him. He testified that he thought that N.D. was filming him so that she could show it to her mother. N.D. testified that she did not intend to use the cell phone video as evidence. She insisted that her intention was mostly to show the video to P.M. as it was so easy for him to come back and say that he had repented and understood now. She did not want to “call the cops on him”. She wanted to be able to tell him that if he came back she would show the video to family.

[21] On the video P.M. is shouting at N.D. in a very loud voice, particularly at the beginning and he constantly interrupts her and is not letting her speak. He is clearly very agitated and furious. On the other hand, N.D. seems very calm and is speaking softly for the most part, but at times she is louder and pleads with P.M..

[22] P.M. admitted that he never asked N.D. to stop filming him. He testified that even if he had done so she would not have stopped. He admitted that he tried to grab the cell phone right away and based on his evidence at some point he grabbed her wrist, forced the phone down and held her hand against her body. He admitted that she did not consent to this.

[23] A couple of seconds into the video the image becomes erratic and it is clear that the camera is moving. P.M. agreed with the evidence of N.D. that she had her phone in her left hand and that as he approached her to grab the phone, she had both of her arms stretched out and she was using her right arm to push him away. N.D. testified that she was blocking P.M. with her right hand because she did not want to get hit.

[24] Once P.M. saw that N.D. was filming him, N.D. testified that he reached for her phone to get it out of her hands. P.M. agree that this is what he did. N.D. testified that as P.M. moved towards her she backed away from him going through the entrance to the kitchen from the hallway and out the entrance of the kitchen into the dining room area. She ended up in the corner of the dining room between the white table and the dining room table by the bay window. Initially P.M. disagreed with this evidence but once he was shown the video he was forced to admit that this was the path N.D. went, with him following her trying grab the cell phone in her left hand.

[25] According to N.D., once P.M. backed her into the dining room she went between the white desk that is against the wall and the end of the dining room table. She testified that she ended up in the corner of the dining room, by the bay window. P.M. agreed that N.D. went along the edge of the white table but initially he testified that he did not think she got to the corner of the dining room. He said the distance between the white table and the end of the dining room table was just about a foot and that it is very heavy and they never move it, implying that N.D. would not have fit between them. P.M. eventually agreed that N.D. ended up in the corner of the dining room when he was shown the video again.

[26] There is no doubt that N.D. did back up in the way she testified to and that she ended up in this corner of the dining room given the video, which shows P.M.’s arm holding the box of Jordans over the white desk to one side and the computer on the dining room table and the far living room wall and floor lamp and the curtain on the bay window in the dining room and the air conditioner that is in the window. Shortly after this the video goes dark but the phone continues to record the audio.

[27] N.D. testified that in the corner of the dining room, P.M. grabbed her by the collar of her shirt and her bra and pushed her up against the wall. She was using both hands to block him and at this point had her hands crossed up by her neck to protect herself. She testified that she must have been between the picture on the wall of the dining room and the lamp that is on the white table when P.M. pushed her up against the wall. P.M. was grabbing her and pushing her over the white table and pressing down on her. She testified that she thought she was recording his jacket. N.D. testified that when the video goes dark that she believes at that point she dropped her phone. N.D. denied the suggestion that P.M. only grabbed her hand or that P.M. was holding her hand as opposed to her shirt collar.

[28] P.M. denied that N.D. was trapped in the corner. He testified that she is very strong and was using her right hand to push him back. According to P.M., if N.D. did not want him to grab her then he would not be able to. He denied that he could trap her against the wall. He agreed, however, that he was blocking her way out. P.M. testified that because he is taller than N.D., he was able to grab her wrist and pull the phone down. The phone was then between her jacket and her hand and that is why it went dark according to P.M.. His intention was to take the phone from N.D. so that she would not be able to film him. N.D. pushed him away and she kept recording. He came to get the phone again and grabbed her left wrist and pulled her hand down to keep the phone down.

[29] P.M. also testified that when he almost touched the phone N.D. pushed him away and she just “walked from there” around the kitchen side of the dining room table. He said that is when the screen went black and that N.D. still had the phone in her hand. He agreed however that it was not up to film him. He testified that once the phone was down he did not have his hand on her wrist anymore. He also said however that the whole time he was holding her hand down. In other words, while he was yelling at her and asking her if she wanted him to “lose it” he had his hand on her wrist. I find that on his own evidence he was holding N.D.’s wrist to keep the phone down. That does not mean that I do not accept N.D.’s evidence that at some point her cell phone fell to the floor.

[30] A transcript of what the parties said on the video was prepared in both French and English and the Crown and Defence agreed that it was accurate. When I listened to the video in my chambers during the course of the trial, I heard N.D. softly say “Get off me” twice before this statement appears in the transcript. I advised counsel of this as soon as I became aware of it. The English transcript appears below. There are italic annotations made by the person who transcribed the audio. My annotations are in italics and are underlined.

Translated English Transcript

P.M.: (Noises) ‘‘Where is the other one?... (Raises voice) Why are you filming me’’?

N.D.: ‘‘No!

P.M.: ‘‘Why are you filming me? Why are you filming me?’’… (Agitated noises)

N.D.: ‘‘No! … Because people are going to see how you... ’’ (Agitated noises)

P.M.: (interrupting) ‘‘No, why are you filming me? ...’’

N.D.: ‘No!’

P.M.: ‘‘Why are you filming me?’’

N.D.: ‘No!’ …. (Agitated noises)

P.M.: ‘‘You think you have the right to film me?’’

N.D.: ‘Yes'

P.M.: ‘‘If I am taking things that I bought, why are you filming me?’’ It is at about this point in the video where the image goes black and by this point N.D. is in the corner of the dining room.

N.D.: [says something I do not understand… ] (…Agitated noises ….)

P.M.: ‘‘Who are you messing with??’’ (agitated noises increasing, resembling an altercation) ‘‘You want to mess with me Nathalie?’’ (Agitated noises….)

N.D.: ‘‘Yes! No! You….’’

P.M.: (Noises … angry tone): ‘‘You, you know me??!! You know me?? … (Agitated noises) …

N.D. softly: “Get off me”

P.M.: You know me, [N.D.]? You want me to lose it on you? P.M. said this sentence in English. You know me?

N.D. softly: “Get off me”

P.M.: No, you know me? You want me to show you just how much I don't care about you now?’’ (… Agitated noises…)

N.D. murmurs: “Okay…Okay”.

P.M.: ‘‘No, you want me to show you that?... just how much I don't care about you now?’’

N.D.: ‘‘You always didn't care [P.M.]…You don’t understand!! You don’t understand!! You had…’’ (Interruption)

P.M.: ‘‘And why do I come here?

(N.D. tries to speak but is interrupted). Why am I here with you?’’ …. (N.D.: ‘‘because, because you want….’’ P.M. interrupts her and continues: ‘‘Why do I call you?’’ N.D.: ‘‘Because you want to use me’’.

P.M.: ‘‘Why am I going to do things with Michou’’ I think this last word is “you”as N.D. testified she did not hear the word Michou

N.D.: ‘‘You want to use me.’’

P.M.: ‘‘Use you how? Who are you?’’

N.D.: ‘Cookie’

P.M.: ‘‘No, tell me, who are you?

N.D.: ‘Cookie’

P.M.: ‘‘Use you how, [N.D.]?’’

N.D.: ‘‘And how!’’

P.M.: ‘‘You are poor. You have nothing! Don't you know that??’’

N.D.: ‘‘Hmm!’’

P.M.: ‘‘You have nothing, you are poor. What do you have? You don't have money. You have nothing! You are poor’’.

N.D.: ‘‘[P.M.]…I am poor…’’

P.M.: ‘‘So shut up…’’

N.D.: ‘‘I didn't need you…’’

P.M.: ‘‘You are not a woman I can use. You hear? Not you!’’

N.D.: Loudly ‘‘Get off of me!’’ (…. Noises…)

P.M.: ‘‘Use! Use!’’

N.D.: ‘‘Take Cookie's boots!’’

P.M.: ‘‘I can't use you. You are poor!’’

N.D.: ‘‘Take Cookie's boots!’’

P.M.: ‘‘I want to use you how, [N.D.]?’’

N.D.: ‘‘You take the boots that you brought. You put them beside the boots…’’

P.M.: ‘‘I want to use you how?’’

N.D.: ‘‘You came with boots…’’ (Interrupted)

P.M.: ‘‘Because you want to make a fool out of me. Every time I try to be friends with you, you want to make a fool out of me.’’

N.D.: ‘‘Leave me! Leave! Take the boots, take the Jordans, leave! Yes, a poor nobody! But you can take your boots.’’

P.M.: ‘‘Yes, you are poor!’’

N.D.: ‘‘Yes, poor, but you are going to take your boots. You are going to take the Jordans and you will leave. ’’

P.M.: ‘‘Use me! Use me!!’ Agitated noises…Come here!! Come sit down!’’

N.D.: ‘‘No!’’ (The recording ends)

[31] Neither N.D. nor P.M. were asked about her first two utterances of “get off me” that I heard. N.D.’s evidence is clear that at the point when “get off me” is heard loudly that P.M. was pressing down on her against the wall over the white table. She testified that she went from upright to leaning against the white table. She said that the whole time P.M. was talking to her, that he had grabbed her by the collar and was pushing her down and up against the wall and he was in her face yelling at her. He finally let go of her shirt and backed away from her but he was still yelling at her. N.D. testified that P.M. made her sit on a chair that was next to the plant in the corner of the dining room area. This chair is not shown in the photos.

[32] P.M. testified that after the “get off me” which N.D. said loudly, that he let go of N.D.’s hand. He admitted that he was still yelling at her and she knew that if she put the phone up he would come back. He testified that at this point N.D. put the phone behind her back. The argument continued and is caught by the audio of the phone. According to P.M., when N.D. tried to record again the phone fell and she put it in her pocket.

[33] According to P.M. after the video ended he went to leave with the boots but N.D. told him not to leave and that she did not want to let him go when he was upset. She offered to make him breakfast. P.M. testified that she told him that she had not been serious and she was laughing. They both left the apartment together. He still had the receipt but left the boots behind. N.D. was not asked about all of this evidence but she did say that at the end of the fight P.M. left the boots. No evidence was given about the Jordans.

Evidence with respect to the alleged sexual assault on November 30, 2017 and preliminary findings of fact

[34] On the night of November 29, 2017, N.D. testified that she went to bed at around 10:00 p.m. In the middle of a deep sleep she was woken by a sound and jolted out of sleep. She assumed it was the buzzer because it makes a loud sound inside the apartment and her phone was on silent or do not disturb mode. When she saw her cell phone, she saw that she had missed a lot of calls and she thought they were probably from P.M.. She then heard knocking on the upstairs fire door of her apartment, outside her bedroom. It was not that loud at the beginning. She called P.M. at this point on her cell phone and told him that she was not going to open the door. He was talking back and she was telling him “no”, that she was not going to open the door. She heard P.M. say in French “I hate it when you do this”. The knocking escalated and it got so hard that the frame of the door was shaking and N.D. wondered if P.M. was kicking the door with his feet. She thought he might come through the door and believed that he was getting angrier. She kept telling him “no”, that she was not going to open the door. After about the fifth hard knock she heard P.M. whisper “fuck” and she assumed he had hurt his hand or broken his phone.

[35] N.D. was not sure if she called P.M. before or after he was knocking on her door. According to P.M. when N.D. called him back, she told him that he should go back to the girl he had been with. He asked what girl she was talking about and told her he had heart palpitations and wanted to lie down. He thinks she then hung up the phone. According to P.M., N.D. would ask him about whether he was with another girl every time he would arrive at the apartment a little late. N.D. testified that she did not recall mentioning any other women to P.M.. She denied that P.M. said he could not go home because he lived in Brampton. She testified again that she did not know where he lived. She thought the Brampton address was just for mail. When it was put to N.D. that she was asking why he did not stay with whatever girl he was with, N.D. denied this and said that she did not care about any girl.

[36] N.D. denied that P.M. told her that he had no place to stay that night or that he had been out watching the Raptors game. In her mind, wherever he had been for the prior six months, he should go back there. He told her to open the door and she said “no”. She told him she was not going to open the door. They were not really yelling and they were also texting each other. N.D. testified that she was lying in her bed the whole time although she remembers sitting up once the door frame started shaking. Her two sons were asleep and did not wake up. N.D. testified that in the past they had had serious fights or P.M. would repeatedly hold down the buzzer and yet the kids would not wake up. She agreed that the children’s room is equally close to this fire door and that the noise was loud but insisted they did not wake up.

[37] N.D. said that she did not know the cameras in the lobby of the building were working so did not know she would have any evidence. That is why she did not call police at this point. She also said that she did not want to face two or three hours of police questioning without evidence. She did not see the benefit and did not believe that the police would protect her.

[38] P.M.’s version of what happened is somewhat different but not materially so. On the night of November 29^th^ P.M. testified that N.D. had been expecting him to come over earlier at about the time the kids returned from school but he did not leave Brampton until 5:00 p.m. and only got to Toronto at 7:00 p.m.. He realized there was a Raptors game on that he wanted to watch as he is a big fan. He went to watch the game at a bar called White Wing at Yonge Street and College Street in Toronto about 7:00 p.m.. The game finished just before 11:00 p.m. but as the Raptors won, and it was a very important game, he stayed in the bar until around midnight. N.D. testified that she did not recall expecting P.M. at all on the 29^th^. She thought he just called her that night. This is not an issue that I need to resolve.

[39] P.M. testified that at the bar he started feeling heart palpitations. He experienced these before and knew that if he found a place to lie down for less than five minutes that they would stop. P.M. said that he left the bar right away because he said he felt that he was “going to drop” and he testified that he walked very fast to M Avenue - a distance of 2.4 kilometres - in 10 minutes. P.M. said he could not take a cab because some of his money was for rent and the rest was for the French school and a winter jacket for J.. He also denied that he could have stayed at the bar. This evidence was incredible as I do not believe that P.M. would have walked quickly for 2.4 kilometres if he really felt that he was “going to drop”.

[40] P.M. testified that when he arrived at the building N.D. was watching television as the light was on in the kitchen and the TV was on. He was calling N.D. but she was not picking up. He suggested that she could see him coming but that seems hard to believe as her apartment begins on the third floor of the building. Furthermore, I do not believe that she was up that late given how early she had to get up. This was not put to her when she testified. In any event, P.M. testified that he called N.D. once or twice while he was standing inside the lobby of the main entrance. When he is seen on the video going outside of the lobby, P.M. testified that it was only for a moment to see if he could lie down outside somewhere. It was too cold outside so he came back into the lobby. He testified that he was calling his friend as well who lives on W Street but his friend was not picking up either.

[41] There is no dispute that P.M. followed another tenant into the locked part of the building. He testified that when he got to the first floor of the apartment he could hear N.D. going up the stairs. He testified he went to the second floor of the apartment because he could hear her walking up the stairs. He said he heard the steps once he was at the top door but that then does not explain why he did not knock on the living room door.

[42] Once P.M. was upstairs, outside the second-floor door to the apartment, he said that he only knocked softly a couple of times. P.M. testified that he did not want to make very much noise as he did not want to wake up the children. There are also apartments on either side nearby. The doors to those apartments also go straight into their bedrooms. P.M. testified that by this point it was almost 2:00 a.m. P.M. testified that he knocked on this door because then he knew he was “going straight to bed”. He said that N.D. came to the door and they were talking through the door. N.D. accused him of the fact that he was supposed to have been there at 5:00 p.m. and asked why he was coming at this time. P.M. testified that he told N.D. that his phone was dying. He said that she knew that there was a problem with it and if it died he could not turn it back on. N.D. said she did not care and at that point P.M. admitted that he said “fuck” and he went into the stairwell and slept there all night.

[43] Photographs of text messages on N.D.’s cellphone were entered into evidence. Chronologically they are as follows:

(a) There were missed calls from P.M. at 12:35 a.m., 12:38 a.m., 12:42 a.m., 12:46 a.m., 12:48 a.m., 12:49 a.m., 12:52 a.m., 12:53 a.m. in the early hours of November 30, 2017. P.M. testified that he actually called N.D. more than this and that he was calling N.D. every 30 seconds and so not all of the calls show on the photos of N.D. phone. He then suggested that she removed some of his calls from her call history. N.D. was not asked about this. I did not accept this evidence from P.M..

(b) N.D. called P.M. on her cell phone at 12:54 a.m. and they spoke for 2 minutes and 20 seconds. As I have already reviewed, what was discussed is in dispute save P.M. admits that N.D. told him that she was not going to let him in.

(c) At 12:59 a.m. N.D. sent a message to P.M. stating: “You think you can harass me!”.

(d) At 1:00 a.m. N.D. sent a message to P.M. stating: “I said GO Home”.

(e) At 1:01 a.m. N.D. received a message from P.M. that stated: “You don’t fucking care about me”.

(f) At 1:02 a.m. N.D. sent a message to P.M. stating: “I do. So please go home [P.M.].”

(g) At 1:02 a.m. N.D. received a message from P.M. stating: “Do you know why I called here now.”

(h) At 1:03 a.m. N.D. responded “[P.M.] stop manipulating me. I don’t feel safe with you.”

(i) At 1:05 a.m. N.D. missed a call from P.M..

[44] Notwithstanding how often P.M. said that he was calling N.D. (every 30 seconds) he would not agree that this meant she did not want him there. He said she would come downstairs eventually to let him in because she knew he had money. Even when she texted him to say he should stop manipulating her P.M. disagreed that she did not want him in the apartment. P.M. also denied that N.D. did not let him in to the building after she heard the buzzer because she did not want him there. He said that in his experience, when he would buzz N.D. she might not let him in at first but after a while she would come down and let him in. He also denied that he was waiting for someone come into the lobby to let him into the building as sometimes N.D. would come down and let him in. Although I accept that this may have happened in the past, in my view, P.M. was clearly not appreciating the reality of the fact that by her not responding, N.D. did not want him in the apartment. She was not asked about any of this but I am sure that if she ever let him into the apartment in these circumstances it was because she gave up on trying to keep him out. He was in fact trying to manipulate her that night.

[45] N.D. testified that the banging on her door stopped after a while and she did not believe there were any more text messages after that. She was not sure if she slept after that as she was very upset. Her alarm rang at 6:30 a.m. so she could wake up her eldest son. Once she was up she looked through the peephole of the door into the hallway to see if P.M. was there but did not see him. She made her son breakfast and lunch for school and was getting a bag together with her birth certificate and passport as her plan was not to go home after J. left for school. Her plan was to sneak out, drop J. off at the bus and go straight to find help to get a restraining order and new housing so she could move. After November 15^th^ N.D. testified that she had been looking for an apartment to move to. She was “very fed up with the cycle”. She referred to the cycle as being sometimes when she did not open the door to the apartment P.M. would wait for her in the laneway. If she opened the door, it was “business as usual” and if she did not, there might be some anger. She was not asked what she meant by this “cycle” and “business as usual” and I did not speculate about this or consider this evidence in making my decision.

[46] The video that shows the back entrance to M Avenue, shows P.M. leaving the building after he put a business card in the lock so the door would not lock. P.M. could not say what time it was but it was the early morning; P.M. estimated it was 5 or 6:00 a.m. He had awoken to a sound and wanted to go outside to smoke. After he had his cigarette he went back to the stairs and slept again. This is confirmed by the agreed evidence of J.M., a resident at M Avenue, who said that at approximately 7:00 a.m. that morning she saw P.M. in the stairwell of the building on the fourth-floor landing.

[47] When N.D.’s eldest son left for school, she made sure that the door to the apartment was locked. She testified that P.M. had “caught me one time” because her eldest son had not locked the door or she had to go back to the apartment for something. She would not leave the apartment without the key or she would leave from upstairs where the door locked automatically. N.D. testified that she did not have time to pack all of her toiletries because she got a text from the school bus driver saying the bus would be on time rather than five minutes late as per usual. She was in a rush and could not find her key to the apartment and so she had to leave the door unlocked when she left with J.. The video from a camera facing the lobby shows N.D. leaving the building with J..

[48] After sleeping some more, P.M. testified that he heard a noise and woke up and that is when he ran out the main entrance to see if he could catch J.. This can also be seen on the video. Shortly afterwards, both P.M. and N.D. can be seen on the video, returning to the building. N.D. testified that after she dropped J. off at the bus she started walking back to the apartment thinking about everything she had to do that day. She realized she had the keys in her coat pocket. She intended to go back to the apartment and grab her bag and lock the door. When she turned the corner she saw P.M. walking towards her. He asked her if he missed cookie. She told him that he had. According to N.D., P.M. told her that he was not feeling well, that he had not slept well and that he needed to lie down. She did not ask him if he had slept in the stairwell. According to N.D., P.M. told her that she would not believe what happened to him the prior night. N.D. told him to go to the hospital or the doctor. As they came into the lobby of the building she was still trying to convince him to do so. She admitted that it was possible that P.M. had told her he had had heart palpitations because he had had that before. She thought he had mentioned that he had just come out of the clinic. He was participating in a research study at the time. N.D. testified that she did not want P.M. to go up with her but she still needed to go upstairs to get her bag. P.M. seemed to have been traumatized by whatever happened and she assumed it was something serious. Eventually she opened the door and P.M. followed her inside.

[49] P.M. testified that he ran into N.D. as he was leaving the building as he wanted to see his son before he went to school. According to P.M., N.D. asked him where he slept and he told her that he had slept in the stairwell and that his back was hurting. He testified that N.D. told him that was not her intention but that he had come at 1:00 a.m. and that she asked him whether he was with a girl. He testified that was the discussion they were having as they walked back towards to the entrance.

[50] N.D. was not asked a lot of questions about what is seen on the video once she and P.M. came back towards the building. When it was put to P.M. that he was trying to pull N.D. towards the inside door and that she stopped, he testified that it was at this point that N.D. told him that she could not find her key and he put his hand on her pocket because that is where she always had her key. He felt something but it was not the key and he asked her to check her other pocket. According to P.M., he asked N.D. to go upstairs and he told her that he had to lie down and they went upstairs. N.D. denied that at this point P.M. was suggesting she had her keys in her pocket. She testified that she knew before she turned the corner that she realized that she had put her keys in her pocket. I note as well that the video shows P.M. putting his hand in N.D.’s pocket outside the door too.

[51] When it was put to P.M. that on the video N.D. can be seen pulling her hand out of his, he testified that he was the one who took his hand back. He testified that he let go of her hand once she started walking towards the door. However, he agreed he was leading the way and that he pulled her inside with his hand inthe top part of her pocket. P.M. denied that this whole time while we can see him and N.D. on the video, he was trying to convince N.D. to let him come in and he was trying to get her into the apartment. He denied that she was feeling unsafe. He said he was just touching her hand, not pulling her. According to P.M., if she wanted to she could have left to avoid him and then come back at a later time. He testified that they were still having a discussion about whether he had gone to another girl that night. He was trying to convince her that there was no other girl. P.M. denied that all of N.D.’s body language on the video shows that she is hesitating. He denied he wanted sex the night before or that morning.

[52] N.D. testified that once inside the building she saw her superintendent coming down the stairs with raised eyebrows as if he was wondering if she was sure she wanted to do this. She did not really explain this evidence nor was she asked about this in cross-examination.

[53] N.D. testified that when she got up to her apartment she was still thinking about whether there was a “way out of this”. She pushed her door open as it had been left unlocked and P.M. walked in. She told him to lie down and gestured towards the couch. P.M. however was grabbing her wrists and insisting that he had to tell her what had happened. She told him that she had somewhere to go and that he could sleep in the apartment. According to P.M. when they got to the apartment N.D. pushed the door open. She told him that she had made breakfast and asked him if he was hungry. He said “no” and that he wanted to lie down and that he would eat later. He went straight to her bedroom. When it was put to N.D. that she asked P.M. if he was hungry, she testified that it sounded like something she would do but she did not recall this.

[54] According to N.D., P.M. dragged her upstairs by her wrists. He was holding her so firmly that even though she pulled back she was not able to loosen his grip. She told him that she was not going to sleep with him. P.M. told her not to worry. He pulled her into the bedroom and told her to take off her jacket. He tried to take her jacket off but she said no and kept it on. She sat down on the chair in her room. P.M. tried to pull her off the chair but she was heavier this way for him to pick her up. She told him that she could not stay and that she had an appointment. P.M. was pulling her hand to have her come sit on the bed and she pulled back. She said “no I am not doing this”. P.M. told her to “come here” and that he just wanted to tell her what happened. She then went to sit on the edge of the bed. P.M. had undressed and was under the bedsheet.

[55] N.D. testified that she assumed P.M. was going to tell her a traumatizing story but the story that he told her had nothing to do with him and was not something she found relevant. In short, it was a story that at a friend’s birthday party P.M. saw that his friend’s wife was having sex with both her husband - his friend, and another man. N.D. asked P.M. why he was telling her this story and how had it impacted him and made him sick. She put her hands on the bed to get up and at that point she testified that P.M. put his hands under her thighs and somehow flipped her over and she rolled over in a ball and ended up parallel to him on the bed. She told P.M. again that she had to go and that she was “not doing this” and that she had an appointment. P.M. was holding her down and she tried to get off the bed. She kept trying to sit up and he kept pushing her down. She told him “we are not in Africa - we are in Canada and I have rights and I don’t want to sleep with you. I have the right to leave. I have somewhere to go”.

[56] According to N.D., P.M. pulled her pants off even though she was holding onto them and did not want them to come off. She was holding both sides of her underwear with clenched fists and he was trying to pull her underwear off. P.M. told her that she did not know how “hard” he was when he saw his friend’s wife’s vagina and so he had had to resist joining in. He told her that he really needed to have sex “right now”. P.M. was twisting her hands in order to open them so she would let go of her underwear. N.D. testified that she had stopped trying to sit up as her abs were tired and P.M. pushed her down onto the bed one last time as she was still holding her underwear. He managed to get her hands off her underwear and pulled off her underwear.

[57] At this point N.D. testified that P.M. tried to give her oral sex but she was closing her legs. He used his hand like a saw to push her legs apart and she was using her hands to push his head back to block her vagina. He kept demanding that she open her legs. He grabbed her right hand and flung it away from her legs and this caused pain in her wrist. She was still holding her legs together and he kept telling her to open her legs. He demanded this three times and the last time N.D. could see he was getting angrier and angrier. She was not sure what he was going to do and so she relaxed her legs so that he could preform oral sex. She did not want him to do that and said that it felt like someone was “poking my liver” and that it felt very weird. She said it was enough and he should stop, which he did.

[58] At this point N.D. was pulling P.M.’s hands away and she was trying to get herself off the bed. P.M. penetrated her vagina with two fingers and she said “ow” and told him to stop because he had scratched her. P.M. then took off his underwear and as he tried to pull off her shirt and bra she told him to stop because he was choking her. He told her to stand up and he pulled the whole thing off. She did not want him to take off her clothing but he insisted. After he took off N.D.’s shirt and repositioned her on the bed he forced her to have vaginal intercourse. When he began to penetrate her vaginally N.D. testified that she told him no again and that she did not have time and she had to go. N.D. testified that before vaginal penetration that she told P.M. that “this needs to stop” “this is not a relationship” and “this aspect of the relationship is over”.

[59] As he was having sex with her N.D. testified that P.M. was asking her to do various things such as kiss him, touch his bum and suck his lips. When P.M. asked her to do these things N.D. testified that she hated it and that she was going through the motions but her feelings were not genuine. She was wondering how long it would take and if she should fake a moan. She did not want to do the things he asked. She said that it felt like a “snake between her legs;” “like slime”. After she did these things P.M. pulled out and was massaging himself and then went back in and eventually it appeared to her that he climaxed and he pulled out. As soon as P.M. let go of her N.D. grabbed a towel off the door and went to take a shower.

[60] P.M. denied pulling N.D. up the stairs. He testified that he went upstairs to N.D.’s bedroom and he took all of his clothing including his underwear. He was completely naked and got into bed and put a bedsheet over him. He was lying straight on his back because his back was sore. About a minute later N.D. came upstairs. N.D. had a shirt and pants on but not a coat. She sat on the bed near his legs and they started talking. According to P.M. she asked him again if he was sure that he had not been with a girl the prior night and he said no. She then asked him to pick up J. after school. He said he would and that he would take him to swimming, which he had after school on Thursday nights. N.D. told him that J. could miss swimming this one time as she wanted him to get him a winter jacket. P.M. told her that he had money for J.’s French school, which he was going to pay for. She said that that was nice but told him that he really needed to get him a winter jacket. She then said she had to go to the Second Cup to read and drink her coffee.

[61] When it was put to N.D. that P.M. told her that he had brought money to sign J. up for the French program N.D. paused and she said: “ I almost don’t want to answer that question because I pay for everything”. She was asked the question again and she said “that’s what I call crap”. She then apologized to the Court.

[62] According to P.M. at this point N.D. said that because “we didn’t do it last night lets have “S.E.X.E.”. She spelled out the French version of the word “sex”, which he said was the way she always did it. In cross-examination P.M. added that before the comment about sex N.D. looked at his body. He said that she probably wanted “it” the night before. P.M. testified that he told her that he was going to be there that night and so he questioned why they would do it at this time. She responded that because he was “handicapped,” in the sense that his back was really hurting, it was not going to take long and that he would usually would take too long and that she had to go. She then took off her pants and laid down next to him and put her head on his shoulder. According to P.M. she rubbed the hair on his chest and stomach and she told him “I don’t have a lot of time so lets do it now so I can go to Second Cup”. They started kissing and engaged in oral sex of each other and N.D. told him to put one finger inside her vagina. They then had vaginal sex. He did not wear a condom and ejaculated inside N.D.. He testified they never used a condom. It was not as long as usual because he was very tired and N.D. said she did not have much time. According to P.M. afterwards N.D. said something like “for the first time Patou this is not an hour, it didn’t take too long”.

[63] In cross-examination when some of P.M.’s anticipated evidence was put to N.D., it was put to her that she told P.M. that since they did not do it last night that she said “let’s have S.E.X.E.”. To this she said “absolutely not”. She denied that they then proceeded to engage in consensual sex. She admitted that P.M. preformed oral sex on her but testified that it was not consensual. His inserting his fingers in her vagina was not consensual. She did not preform oral sex on P.M..

[64] According to N.D. after her shower she got dressed and P.M. was asleep. N.D. denied the suggestion that P.M. showered after the sex. She went downstairs, ate breakfast and tidied up the kitchen and left the apartment. She denied saying goodbye to P.M. - he was still in bed when she left. She was going to go to Toronto housing to see if they could move her and she knew she wanted to get a restraining order to have P.M. removed from the apartment. She was worried that if she did not get help to remove P.M. from the apartment that he would be living there for weeks until he got mad at her again and left in a storm.

[65] N.D. had missed the appointment with Toronto housing and so she went to Second Cup. While she was there her friend S called her and she talked to her for an hour around noon.

[66] According to P.M., after they engaged in sex, N.D. said that she was going to take a quick shower and that she was not going to go to the housing appointment, she had to deal with the fact that she was a few months late on her rent. She said that instead she was going to go to the Second Cup for a coffee and to read some stuff. According to P.M. he took a shower and then went back to bed to sleep. He woke up and it was almost 2:00 p.m.. He went to the kitchen, ate and then left the apartment.

[67] P.M. testified that when he was getting dressed and putting on his pants he could feel that something was not right. He said that he always puts his wallet in his back pocket with the open end facing down and that it felt different because it was the other way around. When he counted his money he realized that $400 was missing, which he testified must have been taken by N.D.. P.M. admitted that N.D. knew he could get into the apartment without her permission and that he would notice if someone took some of his money. He admitted that she would know that he would be furious and that he would be in the apartment later with her children.

[68] P.M. testified that he called N.D. from a payphone and she picked up the phone on the first ring. She was surprised because of the number and he explained that because his phone had died he had called her from a payphone. She queried why he did not call from the house phone and reminded him to get a winter jacket for J.. P.M. testified that he was going to pick J. up and that he wanted her to bring the $400 that she took back to the apartment. He testified that N.D. asked him what he was talking about. P.M. said he was late on his child support, implying that this might have been why N.D. took the money, but this was never put to her. According to P.M., N.D. then told him not to pick J. up anymore and that she would do it but he insisted that he would. N.D. then told him to be sure that when she got home he was not there and then she hung up.

[69] N.D. testified that P.M. called her two or three times. She ignored the first call from P.M. but then she had to pick up the other call because she had to answer the “where are you” question. She told him that she had not sorted out her housing situation. She either asked P.M. to pick up J. or she expected him to. She admitted that she expected he would take J. to her apartment as he had never taken J. to his apartment. She denied asking P.M. when they were upstairs to pick up J. and get him a winter jacket. In fact, she said it was highly likely that J. did not have swimming at this time. According to N.D. when she asked P.M. to pick up J. she had not yet talked to police.

[70] N.D. denied P.M. accusing her of taking $400 from his wallet and asking for the money back. She denied him telling her that he was going to wait for her at the apartment for her to bring the money back. She said that this did not happen at all and denied that is why she went to the police station. She did recall asking P.M. to pick up J. and take him to the apartment but she denied they talked about getting J. a winter coat.

[71] N.D. did admit that looking at P.M.’s wallet once before as she wanted to check his drivers license to see his age and address. When she put the wallet back in his pant pocket he realized that she had touched it and he yelled at her - he was furious. She felt doing this again would be a risk to her life and denied that she did it again as alleged by P.M..

[72] In order to get a restraining order N.D. thought she needed to have some evidence and she did not think she had any. By evidence she meant some sort of mark on her door. Her intention was that perhaps she could use the video from November 15^th^ to remove P.M. from her apartment. From the Second Cup she could see police headquarters and it dawned on her that a police station was right there and she could probably go to that station to get a restraining order. She went to police headquarters on College Street and when she told them what she wanted she was directed to go to the police station on Dundas Street, west of University Avenue. There she told someone she had someone in her house that she wanted removed. When asked if there was a sexual assault she said yes and she was told that another officer needed to speak to her.

[73] After picking J. up P.M. brought him to the apartment and N.D.’s older son buzzed them him. P.M. testified that there was no food so he ordered pizza for the boys. He was arrested before the pizza arrived. When police removed P.M. from the apartment they brought the boys to N.D. and the officer that she spoke to brought them all to Women’s College Hospital (“WCH”) where a sex kit was performed on N.D.. After that N.D. was told that she needed to go to 53 Division, which is the police station for her area. There she gave a lengthy videotaped statement to Detective Nair.

[74] On November 30, 2017, N.D. was examined and treated at the WCH for sexual assault. She was treated by a Registered Nurse (“RN”) who made the following findings:

a) N.D. suffered a 0.5cm tear below her vagina; and

b) There was a reddened area noted at the cervix.

[75] N.D. was asked about the tear below her vagina and said it was probably from P.M. fingers and his scratching her. This makes sense. This evidence does not assist on the issue of whether or not the sexual intercourse was consensual.

[76] The RN conducted an external genitalia swab and a vaginal swab on N.D.. The DNA profiles determined from those swabs have been interpreted as mixtures of two, including DNA attributable to N.D. and to a male, originating from semen. It is admitted that the male DNA profile originating from semen is that of the Defendant, P.M..

[77] Upon his arrest, P.M. had $430 cash in his wallet.

Evidence of events following the arrest of P.M.

[78] P.M. was released on bail on December 5, 2017. One of his conditions is that he is not to have any contact with N.D.. He cannot go to the apartment or anywhere he knows she will be.

[79] N.D. admitted that she knew that once P.M. was arrested on November 30, 2017 that he could not have any contact with her. She said that is what she wanted.

[80] N.D. was asked about a time when she ran into P.M. on the street. Although she did not agree that this event occurred in May 2018 - she remembered this date as after June 2, 2018, for reasons I will come to. She said that prior to June 2^nd^ she had not heard or seen P.M..

[81] What N.D. remembered about this occasion was that she was out with J. and she saw P.M. at a crosswalk. She testified that she said “cookie – look, that’s your dad”. She recalled that her son went to say “hi” to P.M.. She said she kept “calm and controlled” and did not “show fear”. She admitted that she might had told him that cookie missed him but she did not think she told him to come and visit. She knew that he had a restraining order. She denied that P.M. visited a few days later.

[82] P.M. also recalled the time when he saw N.D. and the boys. He was asked a leading question about the date and it was suggested to him that this happened in May 2018. He testified that he did not look when he heard his name but when he heard J. say “daddy” he did look back. J. told him that he loved him and missed him and he talked to him for a little bit. According to P.M., N.D. told him that J. missed him so much and that she knew he missed him as well. She suggested that he come to see J. because J. wanted to go to the park and she could not do that. She asked him to come home and not to be upset. J. asked him as well but he said that he could not. Two days later though he did go to the apartment and N.D. let him in.

[83] According to P.M. since May 2018 to early October 2019 he has been going to the apartment quite often because most the time he is the one who picks J. up from school. P.M. also testified that he has spent a few nights in the apartment. When he does he gets his son ready for school in the morning. Tuesday nights he takes him to swimming lessons and Thursday nights they play basketball at the YMCA.

[84] When N.D. was asked whether or not, with her blessing, P.M. had been coming regularly and picking up her son from the bus stop and taking him back to the apartment, she said that he did this in a “blue moon” but not regularly although he had brought J. to the apartment once. Because she did not want him coming to the apartment she asked him if he wanted to take J. to activities that he was enrolled in.

[85] N.D. testified P.M. often breached his bail conditions and the restraining order but if it was about their son J., she would suggest that he pick him up at the bus stop after school, feed him and take him to swimming or to the YMCA, whatever his program was. N.D. admitted that P.M. had been picking up J. from school and taking him to the YMCA and that he had been spending time with his son and that he called her to make these arrangements. She testified that when she sees it is P.M. calling, she picks up the phone and passes it to J.. She understood that by having this discussion with him he was clearly in breach of his bail.

[86] It was then put to N.D. that P.M. had been taking J. to the apartment and had spent the night. N.D. answered “to be honest, that is correct”. She said that that is why she did not agree with the May 2018 date. She recalled that on June 1^st^ she went to bed late because she had a horrible headache. One of her protocols is that as soon as she gets home, she locks the door and puts the chain on because she is not sure whether or not P.M. has a key to the apartment. She also puts a chair in front of the door. That night, because of her headache, she told the kids to turn off everything for her. At 5:55 a.m. she woke up and although her eyes were still closed, she felt a “presence” in her apartment. She opened her eyes and saw P.M. walking up the stairs. She asked him how he got inside, and he told her the door was open. At this point Mr. Burgoyne stopped asking questions about this incident. P.M. was not asked about this alleged incident.

[87] At this point in the cross-examination, Mr. Burgoyne put to N.D. that he had asked her before whether or not P.M. had come to the apartment and she had said “no”. N.D. responded that she was not sure what time frame he was talking about. He did not follow up on this but I do find that N.D. was providing information about her contact with P.M. post-arrest, incrementally – she was not being forthright in this area of her evidence.

[88] When N.D. was asked if P.M. had been to the apartment more than this one time i.e. June 2, 2018, N.D. said “yes”. She denied it was often though. She testified that after June 2^nd^ there might have been a time that P.M. came back to the apartment and that there must have been a time that happened after June 2^nd^. N.D. testified that she was going to call police on June 2^nd^ when she saw P.M. but was not asked why she did not. She admitted that she knew she could call police at any point.

[89] N.D. did not tell Detective Nair about these bail breaches by P.M.. She said that she did not know that she had an obligation to tell him that. When she was asked why she did not she said that she was “being merciful”. She went on to say that all of these years she had never “gone this far” and that she had always given P.M. chances. N.D. also testified that both the Crown and Detective Nair made it clear to her that nothing was to be discussed about whether she and P.M. had sex both in the past and the future.

[90] N.D. testified that after June 2^nd^ she thought P.M. stayed in the apartment for two to three days and that it was the “same thing over again”. She did not know what to do at that point except wait for the trial. She testified that on June 2^nd^ it was the same story of a sexual assault which again I ignored for the purpose of deciding the allegations.

[91] Towards the end of N.D.’s evidence she became very emotional and began to quietly cry. She testified that when “someone,” who I assumed was a reference to a friend or relative, said “Natalie you can stop this” or questioned if she really liked P.M. that that really hurt and she could not understand how they could say that. She wondered how they could not see how she was trying with the protocols and all the stress that she was under. She questioned how could they not see what she was going through? N.D. testified that she was trying to solve an “equation” in her mind where P.M. “stops” and “doesn’t go to jail and I don’t have to move and J. gets to see him”. She also went on to say that J. would be crying and asking for his father and saying that he needed him. When J. was crying she thought his heart was breaking and this broke her heart. She did not know how to stop this.

Analysis

The Law - R. v. W.(D.)

[92] I now turn to my analysis. Since P.M. testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1] apply. I must acquit P.M. if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^2]

[93] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of P.M., I am entitled to consider it in the context of all of the other evidence.[^3] However, I must remind myself that this is not a credibility contest.[^4] W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of N.D. to that of P.M..[^5] As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.[^6]

The Law - Domestic Abuse and Sexual Assault

[94] In considering the evidence of N.D., and in particular the evidence of the contact she has had with P.M. since his arrest, I have considered uncontroverted law that dispels the myths that a woman who is abused by her partner or is sexually assaulted that she will act in a particular way. Fortunately, those stereotypes have long been discarded by the courts.

[95] In R. v. Lavallee[^7], the court held:

Fortunately, there has been a growing awareness in recent years that no man has a right to abuse any woman under any circumstances. Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigation and charging policies all signal a concerted effort by the criminal justice system to take spousal abuse seriously. However, a woman who comes before a judge or jury with the claim that she has been battered and suggests that this may be a relevant factor in evaluating her subsequent actions still faces the prospect of being condemned by popular mythology about domestic violence. Either she was not as badly beaten as she claims or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it.

[96] In R. v. Seaboyer; R. v. Gayme[^8], the court reviewed the then popular myths regarding women who alleged they had been sexually assaulted and stated:

143 This Court has previously examined the application of myth and stereotype to women in the realm of the criminal law. In R. v. Lavallee, [citation omitted], this Court considered the negative impact of stereotypes about battered women and held at p. 890 that "[e]xpert evidence can assist the jury in dispelling these myths." L. Vandervort, "Mistake of Law and Sexual Assault: Consent and Mens Rea" (1987), 2 C.J.W.L. 233, at p. 258, note 43, suggests that, "[t]he criminal justice system can play a major role in the process of replacing "mythical" views of sexual assault, and the social definitions of sexual assault based on these myths, with views based on fact and the results of empirical studies.

[97] Finally as the Supreme Court of Canada said in R. v. D.D.[^9], just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons …react to acts of sexual abuse”. There is no inviolable rule on how people, who are the victims of trauma like a sexual assault, will behave.[^10]

[98] In this case the evidence that I heard of continued contact between P.M. and N.D., standing alone, does not give rise to an adverse inference against her credibility. It is, however, a factor that I must consider in assessing her evidence.

Assessment of credibility and reliability

[99] There were some differences in the evidence between N.D. and P.M. that could be explained by the loss of some memory of events due to the passage of time. Apart from that, there is no evidence to find that there could be any concerns with the reliability of their evidence. Although P.M. was at a bar for six hours on the night of November 29^th^, and it may be that he stumbled somewhat as he came into the lobby of N.D.’s building, given that he was able to stand in the lobby for a lengthy period of time, I do not conclude that he was drunk, certainly not so drunk that it would have impacted his memory of the events that night.

[100] There is however the question of the credibility of these witnesses which is the central issue I must determine in this case.

[101] Demeanour as a way of assessing credibility is now considered to be a poor indicator of whether or not a witness is telling the truth. That said, I find it is helpful to consider how responsive a witness is to answering questions of opposing counsel and whether or not their demeanour changes in cross-examination. In this case,both N.D. and P.M. were responsive to questions asked by both counsel and their demeanour did not change when they were being cross-examined - there was no sign of hostility. Accordingly, I did not find their demeanour to be of any assistance in assessing the credibility of their evidence.

[102] It was not suggested that N.D.’s evidence differed from her statement to police. Furthermore, her evidence was internally consistent. In many cases she made admissions, that for example, it was her habit to act in a particular way, a way suggested to her in cross-examination, but she would testify that on that particular occasion she did not act in that manner. She also often admitted that a suggestion made to her in cross-examination could be true. Her answers were responsive and they seemed very thoughtout. N.D. was a very fair witness in how she answered questions.

[103] Mr. Burgogne argued that every chance she had N.D. made a negative attack on P.M.. I disagree. It is true that she was firm in giving her evidence about the alleged assaults. She did not suggest however that P.M. was a bad father or that he should not see his son J.. In fact the dilemma she faces is largely because she does want P.M. to continue to have contact with J. but she wants that to happen in such a way that she is not forced to have contact with him.

[104] Another matter I must consider with N.D.’s evidence is that she was not that forthcoming with her evidence about her contact with P.M. after his arrest. I am not referring to the fact that she did not disclose this to Detective Nair or to the Crown. In fact, in that respect this demonstrates that she is not being vindictive or out to punish P.M. because of what she alleges he did to her. I have considered that in cross-examination N.D. was not always responsive to the questions asked about her contact with P.M. after his arrest, although I do not find that she deliberately gave false evidence. I appreciate that some of her reluctance might have been because she was concerned that her contact with P.M. undermined her evidence although this was not put to her. However, overall, I find that the fact this evidence was given somewhat incrementally was because she did not want to get P.M. into any more trouble with police than he already was. With respect to the allegations underlying the charges she was firm.

[105] Mr. Burgogne argued that he was not relying on the contact between N.D. and P.M. to suggest it was more likely that she consented to sexual intercourse, but rather to undermine her evidence that she feared P.M.. Although I agree that her conduct is a factor to consider, I must avoid making decisions based on myths or stereotypes of how a woman in these circumstances should behave. N.D. is a single parent. She is poor. She is getting no financial or other support from her older son’s father and it appears that she gets no or little help from her parents. She has a son who loves his father and unlike many mothers who might use their child to punish their former partner, she wants J. to see his father.

[106] In this regard, the law that I have set out is important. In fact, I could not say it better than N.D. did when she testified that she was trying to solve this “equation” as she called it. She does not want P.M. to go to jail and she wants him to have contact with his son but she wants to stop him from having unwanted contact with her. This is a dilemma that is impossible to resolve in the circumstances that she finds herself. How could she do this without having contact with P.M.?

[107] There is also the fact that N.D. went to police for a restraining order, not to report a sexual assault. This however is consistent with what she wanted. In my view, that does not mean that her alleged sexual assault should have less weight, particularly as we recognize that there is no invioable rule as to how a woman in these circumstances will act. N.D. was not asked about this but it seems reasonable to consider, given her evidence, that in her mind if P.M. was not able to enter the apartment the rest would follow.

[108] With respect to P.M., although he answered all of the Crown’s questions, when he was asked about the events during the fight on November 15^th^, he initially gave evidence that was more benign about his conduct and then Mr. Max had to take him to the video, at which point he would often admit that the initial suggestion made to him was in fact true; admitted that what N.D. had alleged is true. In other respects, as I will come to, P.M. gave evidence that defies belief. For these reasons I did not accept much of his evidence where it differed from the evidence of N.D..

[109] As I have reviewed, I heard evidence from N.D., when she was answering questions, typically in cross-examination, that P.M. was behind in child support payments, that there had been other sexual assaults and that P.M. had breached his bail conditions. P.M. himself volunteered that at the time he was behind in his child support payments. No objection or comment was made with respect to this evidence and I do not find that N.D. was trying to get this evidence on to the record to be vindictive. It always came out in a way that was responsive to a question asked. I must emphasize however that I did not consider any of this evidence in drawing any adverse inferences against P.M. with respect to his credibility or his conduct with respect to the alleged assaults.

Has the Crown proven beyond a reasonable doubt that P.M. assaulted N.D. on November 15, 2017?

[110] Even on P.M. own evidence, he is guilty of assault. It does not matter why the fight started. He admitted to attempting to take the phone from N.D. and in order to do so he admitted grabbing her wrist and taking her hand and pushing it down so she could not film him. This amounts to an assault but a review of the evidence is necessary to determine whether or not more force was applied by P.M. as alleged by N.D..

[111] As already stated, it was with respect to this alleged assault, that P.M. constantly downplayed what was happening. Were it not for the video and the short time it shows images inside the apartment he no doubt would have maintained his position. The video however, demonstrated that he was not being honest about what occurred as he was backing N.D. into the corner of the dining room. P.M.’s evidence that N.D. was not trapped in that corner was not credible. Given the narrow gap between the white table and the dining room table, N.D. had no where to go once she was in the corner, given the large dining room chairs in front of the window; along the wall next to the dining room table. P.M.’s evidence that N.D. simply walked out of that corner of the room and down the kitchen side of the dining room table away from him was also totally incredible. I do not accept that evidence. P.M. was clearly very upset and, in my view, he would not have let her do so without blocking her.

[112] The video evidence not only forced P.M. to accept the evidence of N.D. as being accurate, the strongest evidence is what N.D. can be heard saying three times: “Get off of me”. This language corroborates N.D.’s evidence that P.M. had grabbed her and was forcing her against the wall and the white table. She never told him to “let go” or “you’re hurting my wrist” or anything that is consistent with P.M.’s evidence.

[113] Considering all of the evidence I find that the Crown has proven beyond a reasonable doubt that P.M. assaulted N.D. in the manner that she testified to.

Has the Crown proven beyond a reasonable doubt that P.M. knowingly threatened to cause bodily harm to N.D. on November 15, 2017?

[114] The elements of the offence alleged of threatening to cause bodily harm to N.D. contrary to s. 264.1(1)(a) are set out in R v. McRae[^11] where the Supreme Court of Canada held that the essential elements of the offence that the Crown must prove beyond a reasonable doubt are the uttering of a threat to cause bodily harm and an intent to threaten.

[115] In considering whether or not threats were made, the relevant words spoken by P.M. are:

a) ‘‘Who are you messing with?...You want to mess with me [N.D.]?’’

b) “You, you know me?? (repeated three times)

c) “You want me to lose it on you? You know me?” At this point P.M. was pushing N.D. against the wall and/or the white table.

d) “No, you know me? You want me to show you just how much I don't care about you now?’’

[116] Whether particular words constitute a threat to cause bodily harm is an issue of law to be decided on an objective standard. The actus reus of the offence requires proof that a reasonable person, fully aware of the circumstances in which the words were uttered, would perceive them to be a threat of bodily harm. The Crown does not need to prove that N.D. was intimidated by the threat. The mens rea of the offence requires proof that the threatening words uttered were meant by P.M. to intimidate or be taken serioiusly. The fault element is subjective; a matter of P.M.’s state of mind.

[117] The first question then, that I must consider, is whether or not a reasonable person, fully aware of the circumstances in which the words were spoken, would have perceived them to be a threat of bodily harm.

[118] I have no doubt that a reasonable person would consider all of the words I have set out above to be threats.The fact that I have found that P.M. trapped N.D. in the corner of the dining room and the fact that he was shouting at her and clearly furious is all context in which to consider what was said. I find that the Crown has proven beyond a reasonable doubt that the words spoken, particularly in the context in which they were spoken, including the way they were spoken, would cause a reasonable person to consider them as a threat to cause harm and to instill fear.

[119] The question then is were these words a threat to cause “bodily harm” to N.D.? A threat to cause bodily harm is a threat to cause more than just a slight injury or brief pain. Bodily harm is any hurt or injury that interferes with a person’s health or comfort and is more than brief or fleeting, or minor in nature.

[120] As already stated, how N.D. perceived the threats is not the issue although her evidence in that regard is relevant. When P.M. asked N.D. if she wanted him to “lose it on you” N.D. testified that she took that to mean that he would unleash greater anger and violence on her. She thought he already lost it given what he had done to her to that point. When asked if she knew what P.M. was capable of, N.D. said that she understood that he would “show her” how much he could erase her from his memory and never show up for J..

[121] In my view, the Crown has proven that in considering all of the circumstances a reasonable person would consider these threats to be threats to cause bodily harm or as N.D. put it – unleashing further anger beyond what P.M. was already doing, which I have found was grabbing N.D. by her shirt and pushing her against a wall and grabbing her wrist.

[122] The final question then is has the Crown proven that P.M. meant that N.D. feel intimidated and take the words seriously. P.M. testified that when he asked whether or not N.D. wanted him to “lose it on you” he did not really know the meaning of those words. She had said it to him before and he thought it just showed her that he was very upset. Even if I accept that evidence, given the rest of what P.M. said, he was very angry and he was lashing out at N.D. and he clearly wanted her to feel that he could cause her further serious harm if she did not stop filming him.

[123] For these reasons I find that the Crown has proven beyond a reasonable doubt that P.M. knowingly uttered threats to N.D. to cause her bodily harm.

Has the Crown proven beyond a reasonable doubt that P.M. sexually assaulted N.D. on November 30, 2017?

[124] As already stated, there is no dispute that P.M. engaged in sexual intercourse and oral sex with N.D.. The issue is whether or not the Crown has proven beyond a reasonable doubt that he did so without her consent. Given the evidence of N.D. and P.M., the question of whether or not he honestly but mistakenly believed that N.D. consented to sex did not arise.

[125] In considering this issue I have the benefit of the conduct of the parties during the night of November 29^th^ and 30^th^ as well as the video that shows N.D. and P.M. outside the building and then inside the lobby after N.D. brought J. to the school bus early on the morning of November 30^th^.

[126] The evidence I have summarized of what occurred once P.M. starting calling and texting N.D. and then buzzing to get in the building and then knocking on the upstairs door to the apartment is largely not in dispute. Whether or not P.M. began to knock loudly or whether or not N.D. stayed in bed or got up and talked to him from her bed or through the door does not really matter. Although I appreciate the argument that on N.D.’s evidence the children or a neighbour would have awoken, there is no reason to doubt her evidence that the children had slept through worse before. What is clear is that P.M. was beyond persistent in trying to get N.D. to let him into the apartment and no matter what he did she refused to do so.

[127] P.M. testified on a number of occasions that N.D. was constantly questioning him about whether or not he had been with another woman. I do not believe that evidence and on this point I prefer N.D.’s evidence that she did not care if he was with another woman. The fact that she wanted P.M. out of her life (as opposed to J.’s life) was clear from how she responded to his efforts to get into the apartment and the protocols she spoke of that were intended to keep him out of the apartment. For these resons I do not accept the suggestion that he and N.D. were “making up” after a fight, as suggested by Mr. Burgoyne, once she appreciated that he had not been out the night before with another woman. I also do not accept his evidence that he might have reasonably thought N.D. might still give in and let him in. In my view, he had to know that he was not wanted in the apartment.

[128] As for the video of the interaction between N.D. and P.M. outside and inside the lobby, after she got J. to the school bus, although there is no audio, a lot can be inferred from the body language of both P.M. and N.D.. Once you can see both P.M. and N.D. coming from the direction of the bus stop, P.M. is walking ahead of N.D., towards the main entrance to the building. You can see N.D. stopping periodically - hesitating – and then walking again slowly in the same direction. They are talking but of course without audio I have only their evidence as to what they were talking about.

[129] Just outside the unlocked entrance doors, P.M. can be seen grabbing the pocket on N.D.’s coat and he leads her into the lobby. She is still hesitating. I do not believe his evidence that he was looking in her pocket for a key, based on what I can observe on the video. Based on the evidence of N.D., which I prefer, I accept that she had already realized that she had her keys.

[130] Once inside the lobby, P.M. kept reaching for N.D.’s hand and he held it briefly before she pulled it away. She was not moving forward. I do not accept his evidence that he was the one who pulled his hand away. This action is repeated and clearly P.M. is trying to maintain physical control over N.D.. He also pulled on her coat pocket a second time. At first P.M. was just holding N.D.’s hand but at one point he changed this so that he was gripping her hand with their fingers interlocked; a stronger grip. N.D. kept pulling her hand away.

[131] N.D. can be seen opening her mail box with a set of keys and P.M. grabbed her hand again. She was still not moving towards the entrance. N.D. pulled her hand away again and finally she walked behind P.M. as they went out of the view of the camera into the locked portion of the building.

[132] Based on these observations, it is clear to me that N.D.’s evidence that she still did not want P.M. in the building is true. Everything that can be seen of how she reacted to P.M.’s touch and direction makes this clear. All of this is consistent with her behaviour during the night and the protocols that she spoke of which were directed to keeping P.M. out of the apartment. The fact that she ultimately gave in and let P.M. inside is consistent with her evidence about the dilemma she faced when he wanted in. If she let him in she felt she had some control over the situation and if she did not, she did not know how angry he would get.

[133] As I have already stated N.D. was not asked why she did not ask for help from the superintendent when she saw him coming down the stairs. I do not know what she would have said if she had been asked why she did not ask for his help to escort P.M. out of the building. I would be speculating to find that N.D. could have asked for help from the superintendent. In any event I considered whether or not this evidence suggests that in fact N.D. did want P.M. in the apartment. Given the other evidence that I have it did not change my view that she did not want him in the apartment. I accept her evidence that P.M. persuaded her that he had been traumatized by something and that he was not feeling well and just wanted to lie down.

[134] I found the evidence of P.M. that it was N.D. who initiated sex to be a complete fabrication. Even though N.D. had relented and let him into the apartment that is a far cry from her suddenly wanting to gaze at his genitals and ask him for S.E.X.E and persist in persuading him to have sex with her even when he said he was tired and they could do it later. His evidence was simply unbelievable. It is contrary to everything that N.D. was doing in terms of protocols, not allowing him in the apartment even when he was harassing her in the middle of the night and her clear reluctance to let him in that can be seen on the video. There is no explanation for why she would go from trying to keep P.M. out of the apartment to suddenly wanting/demanding sex.

[135] For these reasons, I find that I do not believe P.M.’s evidence and his denial of the allegations of N.D., nor does it leave me with a reasonable doubt. I remind myself, of course, that this does not enhance the credibility of N.D. or make her evidence more likely to be true. I also appreciate that even if I believe N.D.’s evidence and prefer it to the evidence of P.M., that is not enough. I accept that in considering the charges in this case, that I must remind myself that this is not a credibility contest. It is not enough if I only prefer the evidence of N.D. to the evidence of P.M.. It is not enough if P.M. is probably guilty. Having rejected his evidence, I must not only accept N.D.’s evidence as true, but I must be satisfied beyond a reasonable doubt on the totality of the evidence that I do accept that her evidence has persuaded me beyond a reasonable doubt that she did not consent to the oral sex and vaginal intercourse with P.M..

[136] I turn then to a consideration of N.D.’s evidence. There is, of course, no obligation on P.M. to demonstrate that N.D. has a motive to fabricate her evidence. A motive to lie, however, is a relevant consideration in assessing her credibility. It is the Defence position that N.D. stole $400 from P.M. and that that is why she went to police to make these false allegations. First of all, I do not accept that N.D. stole any money from P.M.. She knew from past experience how angry he got when she just looked inside his wallet and this evidence was not challenged. Had she done what is alleged, there is no doubt that she would have known that P.M. would know immediately, once he got dressed, that she was the one who took the money. At the time she is alleged to have taken the money, the unchallenged evidence of N.D. is that she did not know if and how she could get a restraining order. More importantly, at the time N.D. is alleged to have stolen the money she would have had no way of knowing that when she went to police that P.M. would be arrested and removed from the apartment. In my view, she would not have taken the money and risked the consequences, believing that P.M. would be in the apartment with her sons once she was finished going to police.

[137] I have also considered the fact that N.D. asked P.M. to pick up J. and take him to the apartment. I agree this seems odd given she was trying to get a restraining order to keep him out of the apartment. However, she is a single mother and it does not seem that she gets any support from her parents. She mentioned her father picking up the children but that was not explored. Given that it seems that she had no one else to pick J. up, it is not surprising that she had to ask P.M. to do so. Her evidence that he had never brought J. to his place before was not challenged. N.D. was going to be late and was not able to pick J. up and it appears she had no other option but to ask P.M. for help. This is exactly the kind of conduct that the Supreme Court of Canada has directed that we not consider based on misplaced stereotypes of how a woman in N.D.’s circumstances should behave or not behave.

[138] I have already set out my reasons for finding N.D. to be a credible witness. Her evidence about how the oral sex and sexual intercourse proceeded was detailed and compelling. She did not waiver in cross-examination. Her refusal to have sex with P.M. was also consistent with the other evidence before me of the protocols, she established to keep P.M. out of the apartment, her refusal to let him into the apartment during the night and her clear reluctance to let him in on the morning of November 30^th^. All of this evidence, which I accept, persuaded me beyond a reasonable doubt that N.D. did not consent to having either oral sex or vaginal intercourse with P.M..

Disposition

[139] P.M. would you please stand.

[140] For the reasons I have given I find you guilty of Counts 1, 2, and 3.

Spies J.

Released: November 08, 2019

Edited Decision Released: November 19, 2019

COURT FILE NO.: CR-19-7-125

DATE: 20191108

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

P.M.

REASONS FOR JUDGMENT

Spies J.

Released: November 08, 2019

Edited Decision Released: November 19, 2019

[^1]: 1991 93 (SCC), [1991] 1 S.C.R. 742 [^2]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13 [^3]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). [^4]: R. v. J.H.S., supra at para. 9. [^5]: R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23. [^6]: R. v. H.(C.W.) (1991), 1991 3956 (BC CA), 68 C.C.C. (3d) 146 at p. 155 (BCCA). [^7]: 1990 95 (SCC), [1990] 1 S.C.R. 852 34, at para. 39, [^8]: 1991 76 (SCC), [1991] 2 S.C.R. 577 at paras. 141-143 [^9]: 2000 SCC 43, [2000] S.C.J. No. 44 at para. 63 {emphasis in the original} [^10]: D.D. at para. 65 [^11]: 2013 SCC 68