Court File and Parties
Court File No.: 126/17 Date: 2019/01/03 Ontario Superior Court of Justice
Between:
Her Majesty the Queen – and – B.A. Defendant
Counsel: Jennifer Moser, for the Crown Lakin Afolabi, for the Defendant
Heard: June 18, 19, 21, August 1, September 14, 18, 20, 21 October 26 and November 28, 2018
Reasons for Decision
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information that could identify the person described in this judgment as the complainant shall not be published in any document or broadcasted or transmitted in any manner.
Garson J.
Introduction
[1] B.A., the defendant, stands charged with a single count of sexual assault between August 1, 2013 and April 30, 2016.
[2] The defendant met D.S., the complainant, in 2013. They married in Lebanon and began living together with D.S.’s mother, I.S., and her two sisters in mother’s home in London. In February 2016, the couple moved into their own apartment. The complainant moved out of the apartment in May 2016.
[3] The complainant alleges that on several occasions after the marriage, the defendant forced unwanted sexual activity upon her and that she did not consent to much of the activity. The defendant admits that a number of sexual acts occurred during the marriage but insists that all sexual activity was consensual. Therefore, the main issue for determination is the presence or absence of consent by the complainant.
[4] These reasons explain the verdict that I have reached.
Background
The Relationship
[5] The parties met by phone in January 2013 and were introduced through the defendant’s Aunt U. At that time the defendant, who was living in Calgary, reached out to his Aunt U. and told her he was looking for a wife.
[6] The parties met in person in April 2013 when the defendant came to London and visited the complainant at her home with his Aunt U. and his Aunt U.’s daughter. D.S. testified that she felt obligated to say yes to his marriage proposal and the parties were engaged within four days of their first face-to-face meeting.
[7] An Islamic marriage took place in Canada in September 2013. The defendant, a painter by trade, moved to London in February 2014. At that time, D.S. was going into her third year at UWO studying to become a Registered Nurse. She was doing well in school and was involved in many extra-curricular and social activities and enjoyed relatively good health. Although the parties discussed her moving to Calgary, she was not accepted at any of the programs she wanted and was not prepared to downgrade her education. They ultimately decided that the defendant would instead move to London.
[8] The defendant lived with D.S. and her family in a separate room in I.S.’s house until their civil wedding in August 2014 in Lebanon. D.S. testified that the defendant pointed a gun at her while in Lebanon and threatened her. B.A. and D.S. remained in Lebanon for a month after the marriage and then returned to London. While living with I.S., B.A. paid $600/month for room and board and also contributed some additional food to the home. The parties began to share a bedroom next to a bedroom shared by I.S. and D.S.’s younger sister.
The Sexual Assaults – The First Incident
[9] D.S. testified that the first sexual assault occurred at the end of August 2014, in the shared bedroom. Prior to the wedding in Lebanon, the parties abstained from sexual relations.
[10] She told B.A. that she was tired when he tried to initiate sexual activity. He then grabbed her legs and began pulling her to the edge of the bed. He removed her bottoms and spread her legs apart. He engaged in rough and painful intercourse. He never said anything. She fainted afterwards. She testified that the incident was really painful in her vaginal area and lasted approximately thirty to forty minutes.
[11] During the incident, she screamed for B.A. to stop and get off her and yelled for help but no one else was home at the time.
[12] The incident ended when the defendant got up and left to go to the bathroom to ejaculate. The layout of the upstairs of the home provided for no direct access from the bedroom the parties shared to the bathroom and access to the bathroom required use of the hallway.
[13] After fainting, D.S. next remembered waking up in the presence of her mother, her sisters and B.A., wearing only her underwear and top. She testified that B.A. only ever removed her bottoms but never her top during sexual assaults.
[14] D.S. did not tell her mother or her sisters what happened on this occasion because she was too scared. B.A. had earlier told her that he could do whatever he wanted to her and that she was his wife and it was his right to have sex with her whenever he wants. B.A. suggested that he could take her somewhere yet she was not sure what this meant. He told her that she did not know how Lebanese people think when they get mad.
[15] D.S. described further incidents of unwanted sexual activity. These occurred approximately three to four times per month and involved mostly forced vaginal intercourse, although on some occasions, there was forced anal and oral sex.
September – December 2014
[16] D.S. testified about a specific incident that took place in Toronto at a hotel. She was asleep on her stomach and woke up to the defendant penetrating her anally from behind. He then turned her over and continued with vaginal intercourse. She told him to stop, said she was tired and did not want this to happen. He said nothing and continued.
[17] She also described multiple occasions of forced vaginal intercourse, sometimes taking place when her mother and sisters were home. She would often yell loudly for B.A. to stop and get off of her and would sometimes throw things off of her night table to try and get the attention of others.
[18] She testified that some sexual acts started as consensual but then became painful and when she asked B.A. to stop, he would not.
[19] D.S. contracted a sexually transmitted infection (“STI”) which she believes was from B.A. and was confirmed upon examination at the hospital. She was very angry at B.A. for giving her an STI and regretted her decision to marry B.A. but felt obligated to stay with him and thought she had no choice to leave him.
[20] By October 2014, D.S. was suffering from painful vaginal lesions and scratches and was told to abstain from sexual activity for one month. She also told the defendant that for medical reasons intercourse needed to be gentle. He did not accept this or change his ways.
[21] By November 2014, D.S.’s health began to deteriorate and she began losing significant weight, going from between 115-120 lbs. to a low of 93 lbs. She was also suffering headaches, significant anxiety and difficulty with concentration.
[22] She was advised by her family doctor on another occasion to abstain from sex for one to two weeks. She told B.A. this. He still proceeded to have unwanted sex with her during that time.
[23] She referred to many other occasions where sexual activity would start out as consensual and then became painful for her and she would ask B.A. to stop. He would not listen and would continue with unwanted sexual activity. She testified to ongoing vaginal lesions that made sexual activity very painful.
January – June 2015
[24] D.S.’s health continued to deteriorate over these next few months. The unwanted sexual activity also continued.
[25] D.S. began having suicidal thoughts. At one point, in March 2015, she ingested roughly thirty diet pills causing her mother to call 911 and D.S. to be taken by ambulance to hospital. She was admitted to hospital for a period of two months. During her admission, she was treated for anorexia, depression and anxiety. She was released from hospital in May 2015. The sexual assaults resumed shortly thereafter.
[26] D.S. described B.A. as extremely controlling, and often trying to isolate her from her friends and family. He told her no one cared for her. She was too scared to tell her family what was going on and acted normally when she was with his family for the same reason.
[27] When she would yell at B.A. to stop sexually assaulting her, he would often take his hand and cover her mouth. When her mother or sisters would inquire as to what was going on, she would not tell them anything because she was too scared.
June – December 2015
[28] The earlier described incidents continued between three and four times each month, D.S. testified that on each occasion B.A. would pull her to the edge of the bed, spread her legs open and engage in unwanted intercourse. He would cover her mouth if she tried to scream.
[29] Her response to these incidents was to often cry and hide her head under her pillow. She suffered pain in her pelvis and lower abdomen as a result of many of these unwanted sexual assaults.
[30] She described being hit by B.A. on her arms, legs, and stomach with closed fists during intercourse and being harshly bit by him inside her vaginal area and on her stomach, arms, ears, neck and legs. She suffered a lot of vaginal bleeding and made several trips to hospital emergency almost every week as a result.
[31] She also suffered from syncopy (fainting) which would often happen after the end of many of these sexual assaults.
2016
[32] The parties moved out of D.S.’s mother’s home sometime in February 2016 and into their own apartment.
[33] The sexual assaults continued at a similar rate of three to four times per month. They were now more violent and aggressive with more grabbing, biting, hair-pulling and pain.
[34] D.S. did not tell anyone, including her family doctor, about these sexual assaults, because she remained scared of B.A. Rather, she would often simply cry and hide her head under the pillow during the assaults.
[35] Her fear of B.A. made her want to stay on his good side and avoid making him mad. Accordingly, she would text him often, using terms of endearment like “I love you” because of her fear of him.
[36] While recovering from knee surgery in February 2016, D.S. described an incident about one week after surgery when she returned to her apartment after initially recovering at her mother’s house. B.A. propped her wounded leg on a night table as she was screaming in pain and had forced vaginal intercourse with her against her will.
[37] After her last exam in spring 2016, D.S. and B.A. went to a hotel in Toronto. She told him she was really tired as he attempted to penetrate her anally. He then grabbed her and flipped her over and had forced intercourse with her, despite her telling him to stop. This incident lasted approximately twenty to forty minutes.
[38] After this hotel incident, D.S. started to resent and hate B.A. and often stayed alone in a locked bedroom. However, he would take tweezers and unlock the door.
[39] She described a final sexual assault that occurred at their apartment one evening after she lost the key to their car. B.A. had to pay money for her to get a new key from the dealership. He was not happy. On that evening, he had forced intercourse with her by dragging her by her legs to the end of the bed, spreading her legs open and having unwanted intercourse. Despite her telling him to stop because it hurts, he continued with this assault. She identified this act as part of a pattern whereby B.A. believed he was entitled to have sex with her whenever she asked him for something.
[40] Shortly after this final incident, D.S. told B.A. she was leaving him. Her mother came to the apartment and she left in May 2016 with a few of her belongings. She acknowledged sending him a few Facebook messages after leaving but before going to police because she still cared for and respected him. However, she refused to meet with him alone after she left.
[41] She went to the police in June 2016 after an incident on campus and a meeting with her family doctor.
Her Medical Records
[42] No treating medical professionals testified as to the contents of the records.
[43] D.S. referred to a medical record dated October 3, 2014, which depicted a diagram. She testified that the letters “VT” next to the vaginal area depicted in the diagram referred to a vaginal tear. Records confirm that she tested positive in November 2014 for the herpes virus.
[44] Repeated visits to hospital emergency for abdominal back and pelvic pain along with blood and other vaginal discharge are recorded in February 2015.
[45] In September 2015, she underwent an operative procedure for endometriosis to address abnormal uterine bleeding.
[46] Problems with vaginal irritation and discharge are again recorded in January 2016.
The Islamic Divorce
[47] The parties each described three types of divorces available under Islamic law. Under the first type, the husband goes to the Imam and asks for a divorce. Under the second type, either party can request a divorce. The third type refers to situations of extreme circumstances such as physical cruelty or sexual abuse including the transmission of an STI. The significant difference between the three types of divorce lies in whether D.S. is entitled to the remainder of the dowry upon divorce.
[48] D.S. acknowledged receiving a $20,000 dowry from B.A. on the day of their Islamic marriage. She received $5,000 upfront. She believes she would be entitled to the remaining $15,000 if B.A. assaulted or otherwise mistreated her, consistent with the third type of divorce referred to above.
[49] Although initially pursuing the $15,000 dowry after leaving B.A. and seeking a divorce, D.S. decided not to continue to attempt to recover this money and has never received this money. Although she agreed that a lawyer sent a letter on her behalf asking for this money and that an Imam told her she was entitled to it, she has not pursued it further and has never received the $15,000.
Cross-Examination of the Complainant
[50] D.S. was extensively cross-examined. She admitted lying to a male clinical instructor at school who asked her about the causes of her bruising. She said she lied because she was scared to tell the truth.
[51] She denied abusing diuretics or diet pills (i.e. Lasix) and insists she was not cut off such pills by her doctor for abuse. However, she conceded that she was abusing water pills at the time of her hospital admission in an effort to starve herself because of comments B.A. made about her weight.
[52] She confirmed that B.A.’s controlling behaviour began after the marriage in Lebanon. She explained that she did not want to disappoint her family by seeking a divorce and therefore did not disclose any of these assaults to them earlier. She testified that in Middle Eastern culture, it is always the woman’s fault if they divorce.
[53] During her two month hospital admission, she described B.A. as “trying to look like the perfect husband”. He would often tell her she had to finish all of her food, and was often verbally abusive.
[54] She acknowledged finding dating sites on B.A.’s cell phone which allowed him to send money to women in exchange for pictures and conversations, and being upset about this.
[55] She explained that the reason she initially chose the third type of Islamic divorce was because she had spoken to the Imam and understood that because B.A. and his father were not agreeing to divorce and because of the assaults, controlling behaviour and STI, she was entitled to pursue this type of divorce and it would be an easier route for her.
[56] Initially, she retained a lawyer to pursue the $15,000 remaining dowry but decided she had no time to deal with this because of her busy school schedule. She later told her lawyer not to pursue this.
[57] She denied that other stressors in her life such as her mother and poor school performance were the reason she attempted suicide and was hospitalized for two months. She maintained that B.A.’s controlling behaviour and constant worry about her weight caused her to attempt suicide. She refused to accept that her mother was controlling her life and felt that B.A. prevented her from seeing her mother.
[58] She accepted that she lied to B.A. about her mother hitting her in an effort to please him. He was not fond of her family and told D.S. he did not want them around.
[59] She never complained to B.A. about the sexual assaults or physical abuse. She agreed that she would complain to him about her wanting to spend more time with him, as he was often out late and D.S. was suspicious of what he was doing.
[60] She admitted frequently texting B.A. that she missed him and wanted him to come home. She sent these texts because she was scared of him becoming mad or getting angry if she did not send such messages.
[61] D.S. would often try to cry out during the assaults in the bedroom hoping that her mother and sisters would hear and come knock on the door. She confirmed that they did in fact knock on the door a few times and that when this happened she and B.A. would get dressed and tell them nothing happened.
[62] She suggested that B.A.’s text message inquiries about whether she had eaten were an effort by him to get her to eat very little. This included texts from July 2015 where he told her she needed to eat unless she wanted to go back to hospital. She acknowledged that she lied all the time to the nurses in the hospital about what she was eating.
[63] She accepted that some sexual acts began as consensual but then became painful and she would tell B.A. to stop and he would not. She denied ever initiating sex. Rather, she tried to avoid it.
[64] She advised that B.A. would take her cell phone and send rude messages. She denied ever sending a text in 2016 near Valentine’s Day indicating that she tried to have sex with him and he did not want to.
[65] She referred to her medical records and a diagram indicating a vaginal tear (VT) or tenderness but accepted that the treating physician (Dr. Alija) made no recorded observation of a vaginal tear in his notes.
[66] When shown a series of messages using terms of endearment such as “miss u more”, “love u to the moon”, and “love u more”, she could not recall sending any of these and insists she would not use the letter “u” but would spell out the entire word properly. If she did send texts like this, she testified that it was to try to make B.A. change and be less aggressive.
[67] When shown an April 21, 2015 text discussing with B.A. if she felt any pain during or after sex, she denied replying “no pain no gain”. She was 100% certain she did not send this text and testified that it is culturally inappropriate to discuss such private matters this way.
[68] When shown an April 29, 2015 text sent from her to B.A. stating “ur never in the mood” she insisted that she would not spell your as “ur”.
[69] When shown a May 7, 2016 text sent from her phone to B.A. suggesting that if he’s a man and wants his wife he will come for her, she denied that it was her mother who sent this message and insisted she wrote this text and talked about herself in the third person.
[70] She insisted that B.A. never removed her top, only her bottoms, during sexual activity, despite being shown a statement where she had said that he made her lie on the bed naked. She explained that naked to her meant only her bottoms removed.
[71] She had no recall of B.A. texting her of concerns about pain during sex or texting him that things were painful for her after sex but not during.
[72] When confronted with a series of texts between April and July 2015 suggesting fighting or disagreements between the complainant and her mother, she denied that her mother ever kicked her out of the house and suggested that B.A. would often use her phone to send messages and that it was possible that many of these messages were sent by him. She denied ever being afraid of her mother despite texts from her phone suggesting she was afraid. She could not remember sending any of these texts.
[73] She agreed that she made messages up to cater to B.A.’s desires and make him happy. Many of the texts were simply an act to cater to his sociopathic and narcissistic tendencies.
[74] She agreed that she lied to B.A. about not wanting a divorce after the breakup in an effort to deceive him to come with her to see the Imam.
[75] She denied that it was her mother who forced her to get the divorce and then to pursue the $15,000, or that her mother was every physically abusive towards her.
[76] She agreed that her mother lied to B.A.’s father during a phone conversation when she said D.S. was at university and not present.
[77] She maintained that her mother had no access to her phone.
[78] She insisted that although she does not remember sending any texts to B.A. complaining about her mother, if she did it was because he was manipulative so she would make it appear that she was in conflict with her family to keep him happy.
The Complainant’s Mother
[79] I.S., the mother of the complainant was called as a witness by the defence after the Crown chose not to call her as a witness. She acknowledged having some health issues that can interfere with her memory.
[80] She recalled a perfect relationship with D.S. during D.S.’s marriage. I.S. does not get involved with any of her daughter’s education or marriage.
[81] Her evidence touched on a number of matters including:
(i) how the parties met;
(ii) the engagement and the dowry, including that D.S. only received $5,000;
(iii) that an Islamic divorce was obtained;
(iv) that D.S.’s weight, friends and grades all suffered after her relationship with B.A. began;
(v) that D.S. was attending either doctor appointments or going to the hospital on a weekly basis after the parties were married;
(vi) seeing bruising on D.S.’s shoulders, arms and legs on an almost daily or weekly basis since the marriage and never receiving any explanation as to the cause of these bruises and knowing that D.S. was hiding stuff;
(vii) D.S. being banned by B.A. from seeing her mother once the parties moved into their own apartment;
(viii) hearing screams of help from D.S. coming from the bedroom next to hers almost every few nights but being unable to gain entry because B.A. or furniture was blocking the door every time and then being assured by him that nothing is wrong and hearing nothing from D.S.;
(ix) on the few times that she was permitted entry into the parties bedroom, finding D.S. laying on the floor completely naked;
(x) that fainting episodes also happened outside of the bedroom; and
(xi) calling 911 after D.S. overdosed on diet pills resulting in a roughly two month stay at hospital for D.S. to deal with anorexia and depression.
[82] When shown a series of text messages sent from her phone to B.A.’s phone, I.S. was not able to remember sending any of these messages.
[83] Her initial positive feelings for B.A. changed for the worse after she learned that D.S. had contracted an STI. She described him as controlling and trying to ban D.S. from seeing her after they moved out of her home.
[84] She was shocked to learn that her conversation with B.A.’s father at the time of the separation had been recorded. When the recording was played back for her in court she insisted that a lot of things that B.A.’s father said at that time were not captured on the recording including:
(i) that his father and B.A. will not give D.S. a divorce; and
(ii) threatening I.S. and D.S. not to call the police.
[85] I.S. accepted threatening B.A.’s father that she and D.S. would take the matter to court if he would not agree to a divorce. She agreed that she lied about D.S.’s presence during the call because she did not want his father to know D.S. was there.
[86] She denied ever using D.S.’s phone to text B.A. despite being shown a text from her to B.A. asking (from her phone) for D.S.’s phone password.
[87] She agreed that the civil Divorce Order received by D.S. dated May 16, 2017 pre-dated the letter dated July 7, 2017 from D.S.’s lawyer to B.A. asking for $15,000 by some fifty-two days.
The Defendant
[88] B.A. testified with the assistance of an interpreter. He recalled many of the events in question much differently than either D.S. or her mother. He originally moved in with I.S. because she forced them to live there while D.S. completed her education.
[89] He described D.S.’s mother as controlling D.S. and forcing her to do things against her will, including using physical force to beat D.S. In support of this claim, the defendant relied on a series of text messages between April-June 2015 sent to his phone from D.S.’s phone talking about I.S. including text messages such as:
I just got beat up and slapped;
I just got in huge shit;
stay late at work please because we’re fighting like nuts and I don’t want you to see it;
B.A. I am officially homeless;
she kicked me out;
she doesn’t want to see my face anymore;
no matter what I do I get in shit;
mom yelled at me for going out;
I just got slapped for leaving your work clothes; and
usually getting yelled at and hit.
[90] Unlike the loving and supportive relationship that both D.S. and I.S. referred to, B.A. described D.S. as fearful of her mother. He insists he tried to protect D.S. from her mother and do things for her but he was not successful. He described his relationship with D.S. during their marriage as excellent.
[91] He repeatedly denied committing any physical or sexual assaults against D.S. She never complained to him about any type of assault. He attributed any bruising that may have been found on D.S. to her mother beating her.
[92] D.S. often asked him, sometimes three to four times per week, for ice cream and he would always comply with these requests because he wanted her to gain weight. He denied any link between getting her ice cream and later demanding sex from D.S. in return.
[93] He pointed to a string of messages from D.S. where she would often use terms of endearment such as:
miss you;
love you;
yes my heart; and
I miss ur cuddles.
[94] While D.S. was hospitalized for two months in 2015, B.A. brought her gifts including stuffed toys, clothes, jewellery, food and sometimes helped her shower. He visited her every day.
[95] He explained that a text he sent in April 2015 stating that he was her husband and allowed to touch her and do what he wants meant that as her husband he is permitted to touch her or give her a hug. He insisted that there was nothing sexual about this text.
[96] On April 21, 2015, B.A. specifically confronted D.S. on the issue of whether she does not like having sex a few times a week. He then indicated that he felt bad for her afterwards because she gets sore and tired for two days after sex, and he felt bad hurting her and making her sore and tired. D.S. responded that she did not care as long as she was with B.A. and texted “no pain, no gain”, and further texted that she felt pain after sex, not during. This text message exchange concluded with D.S. telling B.A. she loved him.
[97] B.A. acknowledged that there were periods of time when they abstained from sex including the STI diagnosis for D.S. and after her vaginal surgery for endometriosis. Other times, her doctor told her to abstain from sex and the parties also would not have sex when she was on her period. In a text exchange on May 20, 2015, D.S. informs B.A. that they cannot have sex for a month and he responded with “LOL”.
[98] He explained that sexual activity would only take place if they both agreed and that if D.S. was not in agreement, he could not force her to have sex.
[99] He described D.S. as often being completely naked during sex.
[100] He recalled D.S. abusing water pills in an effort to lose weight and believes her anorexia condition existed before he met her because she told him so. He denied ever shaming her for her body weight or telling her he would rather die than have a fat wife.
[101] He explained that I.S. impacted every aspect of their relationship from financial to sexual, to where they were able to reside. Towards the end of 2015, he explained that D.S. was becoming frustrated with living with her mother and sent the following texts to the defendant:
apparently I give myself those diseases to have an excuse to sleep…I can’t take this shit anymore;
I need to get out of this house; and
I’m at a point where I just want to die.
[102] B.A. denied ever sending himself text messages from D.S.’s phone or texting D.S.’s mother from her phone. He further denied ever pointing a gun at D.S. in Lebanon or threatening her.
[103] He also denied ever attempting oral or anal sex, as it would entitle her to the late dowry of $15,000. B.A. insisted that all sexual activity with D.S. was consensual and that if she said no to sex, which she did many times, he would turn over and go to sleep. D.S. would also initiate sexual activity and B.A. would sometimes turn it down if he was tired or sick.
[104] He did not oppose the civil divorce and claimed they are not Islamically divorced. He would not agree to an Islamic divorce because D.S. alleged he caused her harm and had to pay the late dowry and he denied this.
[105] He denied that D.S. ever fainted after sex, or that he ever barricaded the bedroom door to keep her mother out. He believed that D.S. mostly fainted after her showers and that he would call her mother to come help. This happened as often as four to five times a week.
[106] He referred to a text around Valentine’s Day of 2016 that he could only access from his phone as a Facebook message where D.S. texted him the following:
I try to have sex with you – you don’t want it
He acknowledged that this was only part of that text message and another part was missing that referred to D.S. trying to be cute and good during Valentine’s Day. He explained that this text was sent after D.S. approached him for sex and he said no.
[107] In cross-examination, B.A. explained that if the Islamic divorce were granted in his favour, he would be entitled to a return of his $5,000 and would not have to pay any more money.
[108] He denied ever seeing any bruises on D.S. When he told the police that he observed “like a rash, probably bites” on D.S., he was referring to bug bites and not bite marks from him.
[109] He maintained that the only time her body language regarding consent to sexual activity was of concern to him was the one time he saw an expression on her face and specifically texted her about it. Otherwise, sex did not appear to be uncomfortable for D.S.
[110] He insisted that he is before the court today because of I.S. Despite being shown emails where both D.S. and I.S. expressed love and affection for one another he was steadfast that their relationship was not a good one during the marriage. He accepted that D.S. and her mother cared about each other.
[111] He denied not being there for D.S. emotionally despite a text she sent him on March 20, 2016 suggesting he treated her like a punching bag and was never there for her. He described being in shock from a text D.S. sent him on May 17, 2016 where she refused to meet with him and suggested that she did not “feel safe”.
[112] He witnessed D.S.’s mother physically assault D.S. on two to three occasions involving I.S. hitting her with plastic hangars and her hands and pulling D.S.’s hair. These assaults would leave bruises. He accepted that he never told the police about any such bruising being caused by I.S.
[113] He agreed that D.S. texted him near the end of the relationship describing her mom as “everything to me”.
[114] He denied altering the Valentine’s Day 2016 Facebook message from D.S. where she texted him she wanted to have sex with him and denied that he made up this entry after the charge was laid. He accepted that the message also included D.S. saying she was trying to be cute and romantic on Valentine’s Day and she felt that he did not appreciate or like it.
[115] He accepted that sex caused D.S. to be sore and tired for a few days afterwards and that she told him this was normal. He agreed that he always ejaculated either in a condom or in the bathroom and not inside of D.S. in order to avoid the risk of pregnancy. He indicated that it was D.S. who longed for a child and tried to get pregnant by skipping the pill.
[116] He firmly denied ever grabbing, hitting or biting D.S. or being rough with her during sex. He disagreed that D.S. ever screamed for help during sex or told him to stop or get off of her. He never barricaded the bedroom door or told D.S.’s mother everything was alright. He suggested that fainting did not happen in the bedroom or after sex but in the shower which is why he would often accompany her to the shower to make sure she did not faint or fall. He testified that D.S. fell often after leaving the shower.
[117] He denied ever holding a gun or pointing a gun at D.S. while they were in Lebanon and never expressed an opinion that it was not a crime for a husband to force sex on his wife.
[118] Whenever the parties had a fight at D.S.’s mother’s home, he testified D.S. would stay in the bedroom and he would leave the home. He recalled on two or three occasions going to stay with his Aunt U. in London.
[119] He denied having a good relationship with D.S.’s mother and suggests that some of the messages where the defendant and D.S.’s mother appear to get along give a false or wrong message as to the true state of the relationship. He accepted that I.S. was sometimes supportive of the marriage and sometimes helped the parties. However, he was steadfast that she remains the reason why the parties are divorced and why he is in court.
[120] He did not speak negatively about D.S.’s weight and never said that he would rather be dead then have a fat wife.
[121] He is still fighting the Islamic divorce and maintained that he is not Islamically divorced.
A.H.
[122] The defence was permitted to re-open its case to call A.H.
[123] She was a neighbour and friend of I.S. after she moved to the same housing complex in 2016. She described being asked by I.S. to follow B.A. approximately fifteen to twenty times in an effort to catch him breaching his bail conditions. She felt I.S. was obsessed with B.A.
[124] She testified about seeing bruises on D.S. in 2017 and observing physical abuse by I.S. directly against D.S. on two occasions, one where she slapped her, and another, where she pulled her hair.
[125] She expected to testify earlier in the trial but did not attend. She explained that shortly before she was to attend, I.S. drove her car towards her while she was washing her car and came within eight inches of striking her. She spoke of a number of other incidents where either she or I.S. were involved in an altercation and one of them called the police. She was eventually warned by police to stay away from I.S. and her family.
[126] She confirmed a series of text messages between her and D.S. which she said reflected the on-going conflict between D.S. and I.S. These 2017 messages in May and June show D.S. getting in trouble with her mother and asking for A.H.’s help to calm I.S. down. A specific entry dated June 23, 2017 from D.S. reads: “she keeps hitting me”, and then goes on to indicate that D.S. got a “big Atleh” which A.H. believed to mean a big beating.
[127] On cross-examination, she resiled somewhat from earlier statements in her sworn affidavit that I.S. tried to injure or kill her and accepted that she was not trying to injure or kill her with her car. She acknowledged now being good friends with B.A. and attending at I.S.’s unit when specifically told by police to stay away.
[128] She agreed that she liked D.S. and described her as a good girl and I.S. as a good mother and provider.
Positions of the Parties
The Defence
[129] The defence denies that there were any sexual assaults and insists any sexual activity between the parties was consensual.
[130] They argue that the allegations are the result of I.S.’s controlling and manipulative behaviour over D.S. and that the motivation for these false allegations is financial gain, an Islamic divorce and payback for perceived earlier insults. Put another way, I.S. has put D.S. up to fabricating a story of repeated sexual assaults. The defence relies on a series of text messages portraying B.A. as a caring, loving and supportive husband and not as abusive or controlling.
The Crown
[131] The Crown counters that D.S. is a credible witness and that her evidence is corroborated by I.S. and her medical records. There are Facebook messages that clearly show positive feelings between I.S. and D.S. particularly towards the end of her relationship with the defendant. Simply put, the Crown argues there is clear evidence on at least one occasion where D.S. was sexually assaulted.
[132] The Crown portrays D.S. as a previously healthy, high-performing and engaged nursing student who after marrying B.A. and commencing a sexual relationship became anorexic, depressed, withdrawn and suicidal as a result of a controlling and physically and sexually abusive partner. The Crown also relies on certain text messages to argue that B.A. believes he could touch D.S. whenever he wanted.
The Law
Presumption of Innocence and Burden of Proof
[133] The defendant is presumed innocent of the charge unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.
[134] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It is also not proof to a level of absolute certainty. Simply put, it requires that I be sure that the defendant committed the offence.
Reasonable Doubt and Credibility
[135] In light of the evidence of the defendant, I must apply the principles established in R. v. W.(D), [1993] 1.S.C.R. 742, which provide as follows:
(i) If I believe the evidence of the defendant that he did not commit the offence, I must find him not guilty.
(ii) If I disbelieve his evidence but it nonetheless creates a reasonable doubt as to his guilt, I must find him not guilty; and
(iii) Even if I disbelieve him and his evidence does not raise a reasonable doubt, I can only find him guilty if on the evidence that I do believe and accept his guilt has been proven beyond a reasonable doubt.
[136] If I cannot decide who I believe at the end of the day, I must acquit. W.(D.) does not apply to each individual piece of evidence but only to the essential elements of the offence.
[137] When assessing credibility, I must examine both the internal consistency of a witnesses’ evidence as well as consistency of that evidence with other witnesses. I must apply the same level of scrutiny to all witnesses.
[138] I must be mindful of the plausibility of a witnesses’ account and any motive to fabricate or embellish. I must also take into account a witnesses interest in the proceedings and assess whether there evidence is corroborated or contradicted by other witnesses or other evidence. Although I may consider the demeanour of a witness, I must be careful not to place too much weight on this factor in light of an increasing recognition that factors such as gender, culture and individual traits may impact demeanour without affecting credibility.
[139] An honest witness may still be unreliable or have an imperfect or inaccurate recall of events.
[140] In cases of this nature, the credibility assessment is the central issue and ultimately informs the findings that determine whether the Crown has proven its case beyond a reasonable doubt or whether the evidence as a whole raises a reasonable doubt.
[141] Credibility is not informed by sexual reputation or prior or post-offence unrelated conduct.
[142] Credibility speaks to veracity and truth-telling while reliability speaks to accuracy and trustworthiness. A motive to fabricate or lie are relevant factors that I may consider.
[143] What I must not do is permit a criminal trial to turn into a credibility contest where I simply pick on version of events over another. To do so undermines both the presumption of innocence and the burden of proof placed on the Crown.
[144] Cultural issues loomed large in this case and I must be sensitive to and mindful of these issues.
Sexual Assault
[145] The offence of sexual assault requires proof of three elements:
(i) an intentional touching;
(ii) of a sexual nature;
(iii) in the absence of consent.
[146] Given that both parties admit to much of the sexual activity, I will primarily focus on the third element of consent.
[147] Consent is defined in s. 273.1(1) of the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question. Consent refers to the person being touched and to whether the person subjectively consented at the time. In other words, the absence of consent is reflected by whether the complainant, in her own mind, wanted the sexual activity in question to occur. The state of mind of the person being touched may be reflected in their words or behaviour at the time. There is no presumption of consent and no implied consent. Consent must be freely given.[^1]
[148] The Crown must establish that the complainant did not consent (the actus reus) and knowledge by the defendant, or being reckless or wilfully blind to a lack of consent (the mens rea).
[149] Honest but mistaken belief in consent is a defence to sexual assault. It requires the existence of sufficient evidence to conclude a lack of consent by the complainant. The defence has been codified in s. 265(4) of the Criminal Code and requires a belief by the defendant that consent at the time was voluntary and clearly communicated through the words or behaviour of the person being touched. The belief must be honest but need not be reasonable. The belief must be based on some evidence or some type of ambiguity and cannot be founded on the basis of a mere claim or assertion by the defendant. The Crown must disprove the defence, or put another way, must prove the absence of an honestly held belief by the defendant that the complainant was consenting.
[150] Section 273.2 of the Criminal Code places limits on the defence of honest but mistaken belief in consent by prohibiting its use as a defence where the defendant’s belief in consent arose from his own recklessness or wilful blindness or where the defendant failed to take reasonable steps in the circumstances at the time to ensure that person being touched was consenting. Put another way, would a reasonable person standing in the shoes of the defendant in the circumstances have taken any further steps before proceeding with the sexual activity in question?
[151] There must be evidence of consent through either clear words or clear conduct by the person being touched. Silence, passivity, ambiguity or lack of resistance do not equate with consent. The burden of proof never shifts to the defendant.
[152] The defence of honest but mistaken belief in consent must have an air of reality in order to be considered and is not often invoked since the majority of sexual assaults do not occur by mistake.
[153] In assessing reasonable steps, a quasi-objective approach is required. The first step is to assess any steps from an objective point and thereafter assess such steps in light of the circumstances known to the defendant at that specific time.[^2]
[154] Additionally, s. 265(3)(b) provides that consent to sexual activity may be vitiated by fear of the application of force to the complainant. In other words, a person who consents to sexual activity because of fear of physical violence is deemed at law to have not consented.
[155] Section 273.1(2)(e) permits a person who previously consented to engage in sexual activity to revoke or withdraw that consent at any time to continue to engage in the specific or other sexual activity.
[156] I must be careful not to subscribe to any of the judicially recognized myths and stereotypes regarding sexual assaults including that real victims report any sexual assault at the earliest opportunity and do not associate with the perpetrator after the offence. I must be wary of assumptions of how a victim of sexual assault typically or normally responds to such acts. I must keep in mind factors such as power imbalance, fear and coercion and how such factors, if they exist, affect the behaviour of the parties.
[157] Although I must avoid reliance upon, or drawing adverse inferences from, any of the myths or stereotypes, I must nonetheless apply the same level of scrutiny to the complainant’s testimony as I do to the testimony of other witnesses.[^3]
Discussion
Credibility Assessments
D.S.
[158] D.S. testified about a number of unwanted sexual acts. In fact, she concluded her testimony by stating that all sexual activity with B.A. was unwanted even though some may have begun as consensual but eventually became unwanted due to pain or lack of continuing consent.
[159] D.S. presented as a polite and respectful witness and appeared genuinely traumatized by these events. I felt very sympathetic for her in light of the obvious difficult times that she endured between August 2013 and April 2016. Her physical, emotional and psychological challenges must have been overwhelming to an otherwise high-achieving and outwardly successful young woman. She was continually in and out of hospital. There is little doubt that she went through a very traumatic and significant downward spiral in her life during this time.
[160] She seemed genuine in her belief that she did not want any of this sexual activity to occur. I accept that she sincerely believed that many of these events were without her consent. I also accept that many of these incidents subsequently led to significant physical pain and suffering on her part.
[161] However, her credibility assessment cannot stop here. I must also undertake a careful analysis of the reliability of her evidence which ultimately is of paramount concern.[^4] Her evidence that she did not consent to any of the sexual activity remains subject to assessment in light of the totality of the evidence. I have found a number of inconsistencies in her evidence, both internally and when contrasted with other evidence, that I must consider. Although I need not refer to every inconsistency, I must address the more significant inconsistencies.
[162] I find that the following areas of D.S.’s testimony constitute significant concerns or inconsistencies:
(i) Her insisting that there was never an occasion when she was fully naked and that her top always remained on despite her mother testifying that she observed her passed out on the floor of the bedroom on several occasions with no top on, apparently after some sexual assaults, and her own earlier statement where she had said B.A. made her lie on the bed naked, although she explained that naked meant only her bottoms removed;
(ii) Her evidence that she and her mother had a positive and loving relationship and that her mother never physically abused her despite a string of texts from her to B.A. and later to A.H., that she was beaten or hit by her mother;
(iii) Her evidence that B.A. hit her on her arms, legs and stomach with closed fists during intercourse and harshly bit her inside her vaginal area and on her stomach, arms, ears, neck and legs despite the lack of a single medical record confirming such bruising or bite marks and almost weekly trips to hospital for vaginal bleeding, pain and fainting;
(iv) Her evidence that she could not recall sending a number of texts using terms of endearment towards B.A. but if she did send them, it was because she wanted to make him happy and less aggressive;
(v) Her evidence that he constantly put pressure on her to lose weight and engaged in “fat shaming” despite being shown a series of texts where he encouraged her to eat and her own admission that she routinely lied to nurses in the hospital and to others about what she was eating when she was battling an eating disorder;
(vi) Her denial of ever sending text messages in either April 2015 or February 2016 discussing sexual activity and, on one occasion, acknowledging that she initiated such activity, despite being shown these texts;
(vii) Her testimony that many of the text messages she either could not recall or denied sending were possibly sent by B.A. in an effort to keep her divided and apart from her family; and
(viii) Her admission that she lied to B.A. about not wanting a divorce after the break-up to deceive him to come with her to see the Imam.
[163] I will have more to say about the reliability of her evidence as these reasons unfold.
I.S.
[164] Like D.S., I.S. had difficulty recalling many text messages that appear to be sent form her phone. She came across as a loving and concerned mother who seemed highly motivated to help D.S. in any way, yet also reluctant to have found herself in the witness box.
[165] She accepted that she lied to B.A.’s father about D.S.’s presence during a telephone call and that she threatened his father that she would take the matter to court if he would not agree to a divorce for his son.
[166] She insisted that she and D.S. enjoyed a perfect relationship and maintained that she does not get involved in her daughter’s education and marriage. I am not sure her actions, her text messages or D.S.’s texts support this proposition. At best, their relationship can be described as rocky, inconsistent, intense, and at times, confrontational. It was far from perfect at that time.
[167] I accept that she was genuinely caught off-guard in court when confronted with a recording of the conversation she had with B.A.’s father.
[168] Although I am not prepared to agree with the defence characterizations of I.S. as manipulative and vengeful, I do approach much of her evidence with caution for the following reasons:
(i) although she insists her relationship with D.S. was “perfect” throughout the marriage, the litany of text messages that I accept as accurate and as being sent by D.S., paint a clear picture of a mother who is in regular, and often heated, conflict with her daughter and who, at times, threatened her daughter with removal from her house and was verbally and/or physically aggressive and controlling towards her;
(ii) although testifying to seeing bruising on D.S.’s shoulders, arms and legs on an almost daily or weekly basis since D.S.’s marriage, these observations were never confirmed in any medical record filed notwithstanding that D.S. was going to the hospital on an almost weekly basis;
(iii) her acknowledged lie to B.A.’s father that D.S. was not present during their telephone conversation; and
(iv) her response to hearing screams in the bedroom next door for many, many months almost every few nights and after immediately responding and being unable to gain entry to the room, simply going back to bed with no follow-up or no further intervention, despite her knowledge that D.S. was “hiding stuff” from her.
[169] The fact that she was heavily involved and invested in many aspects of D.S.’s life and not afraid or reluctant to confront others when concerned for D.S.’s well-being makes her actions with respect to D.S.’s repeated cries for help even more difficult to comprehend or accept.
[170] I am mindful that she was reluctantly called by the defence as a witness after the Crown chose not to call her as a witness and the inherent challenges faced by the defendant in attacking the credibility of his own witness.
The Defendant
[171] B.A. testified with the assistance of an interpreter. He repeatedly denied committing any physical or sexual assaults against D.S.
[172] He withstood a lengthy cross-examination by Crown counsel.
[173] Although I am somewhat troubled by one of his text comments suggesting that D.S. was his wife and he can touch her when he wants to, as well as his characterization of their relationship as excellent, for the most part I accept his evidence.
[174] As I will discuss later, I accept his evidence on a number of issues where such evidence is directly contradicted by both D.S. and I.S.
A.H.
[175] I found much of her testimony irrelevant and almost distracting or collateral to the issues before me. I place little to no weight on the series of events that took place in 2017 between her and I.S. other than to conclude that each now has a strong dislike for the other.
[176] I do accept her evidence to confirm that D.S. did communicate with her in 2017 about on-going problems with her mother and about the fact that D.S. texted her that she got a big beating from her mother. I am mindful that such evidence is well after the alleged incidents before me and is of limited weight in that regard.
Applying The Legal Principles
(a) Evidence That I Do Not Consider or Afford Little Weight
[177] This trial lasted almost nine days. It need not have lasted this long. Much of the evidence presented and the cross-examinations conducted dealt with matters that preceded or came after the alleged events.
[178] What I must determine is what happened during the sexual activity and whether or not it was consensual. If not consensual, I then turn to whether B.A. intentionally touched D.S., knowing or being reckless or wilfully blind to her lack of consent, expressed either by her words or her actions.
[179] Accordingly, I wish to set out the following non-exhaustive list of factors that I either do not consider or place very little weight or reliance upon:
(i) Events that took place in Lebanon involving threats and the potential discharge of a firearm. Although admissible for purposes such as narrative or context, I rely on these events to the limited extent that they reflect a reasonable basis to explain any fears that D.S. may have had of the defendant;
(ii) The existence of an STI and the competing claims as to how D.S. contracted this. I found much of this evidence to be embarrassing for the parties and in light of the Crown’s position that it plays no role in the issue of vitiating consent, of little assistance to me;
(iii) The many, many hours spent describing in excruciating detail, the three types of Islamic divorce and whether the third type of divorce was the motive behind these allegations and whether or not the parties are in fact Islamically divorced. To be clear, I do not accept for a moment that these allegations are motivated by a desire to improperly secure an Islamic divorce;
(iv) The suggestion by B.A. that this whole matter was fabricated for a $15,000 dowry payment is utter nonsense. It is immaterial to me that the parties did or did not achieve this outcome and the evidence is clear that D.S. stopped pursuing her claim for this remaining dowry many months ago;
(v) D.S.’s virginity, although admissible through her own testimony as a physical fact[^5], and not as a sexual experience, is immaterial to the legal issues of consent or honest but mistaken belief in consent and of no assistance to me;
(vi) In the absence of a treating medical practitioner or qualified medical expert, I do not accept D.S.’s interpretation of the medical records filed with respect to her explanation of what the letters “VT” meant on an October 3, 2014 medical report. Although training to be a registered nurse and capable of telling me about her injuries, she was not in a position to speak to what the report writer intended these letters to mean; and
(vii) The presence of interactive dating sites that D.S. found on B.A.’s phone. It would be dangerous to draw a link between such sites and sexual assaults having taken place.
Consent
[180] If I look at D.S.’s subjective state of mind at the time of these alleged acts, it would appear that she was not consenting to the sexual activity in question and that all of the sexual activity, at least at some point during many of the acts in question, may have been unwanted.
[181] The only relevant time period that I examine to determine D.S.’s consent is at the actual time of the sexual touching. Her consent before or after these events is not directly relevant to whether she consented at the time of touching. She must consent to each and every sexual act in question.
[182] However, what is relevant is whether she consented at the time, but at some future point in time afterwards changed her mind. It is at this point that I return to the voluminous text messages filed.
[183] The Crown properly argues that I need only find that one of the many sexual acts complained of was not consensual to meet the test. The Crown points to the text exchanges on April 21, 2015 as evidence that shows that D.S. acted in a manner, on at least one earlier occasion where sexual activity occurred, that caused the defendant to believe that she was in pain.[^6]
[184] Notwithstanding D.S.’s claim that she was 100% certain that she did not send these specific texts as it was inappropriate to discuss sexual matters this way, the Crown nonetheless asks that I accept that these messages in Exhibit 14 were sent by D.S. I do and find as a fact that she texted those messages to B.A.
[185] Even if I get past the hurdle of D.S.’s adamant denial about sending these texts, I must look at this text exchange in the context of when it took place. In March 2015, D.S. is taken by ambulance to hospital and admitted for a period of two months for treatment for anorexia, depression and anxiety.
[186] Both parties testified that no sexual activity took place while she was hospitalized. When specifically asked if she does not like to have sex twice a week, she denies saying that and makes clear that she does not care as long as she is with B.A. She makes repeated reference to the phrase “lol” which I infer to mean laugh out loud. When specifically asked by B.A. if he is hurting her or if she gets sore or tired during sex, she replies “no pain no gain”, and thereafter clarifies that she felt pain after but not during sex.
[187] Although the Crown asks me to rely on this exchange as clear evidence that she was not consenting on an unspecified earlier occasion, these messages also confirm that:
(i) B.A. is expressing concern for whether she is sore during sex and whether sex is hurting her;
(ii) she clarifies for him that she is ok with pain and in any event, the pain comes after and not during sex; and
(iii) the tone of the exchange is friendly and positive. I note that at the end of p.112 of Part I of Exhibit #14 as part of this same exchange, and some ten minutes later, both parties express their love for one another and D.S. sends the text “xoxo”.
[188] I accept that D.S. suffered from vaginal pain as a result of sex and was in fact medically treated and operated on for issues arising in this context. I also accept that there were times when it was medically necessary for the parties to abstain from sex. I do not however, accept that consensual sexual activity could not take place as a result of such pain.
[189] I accept much of B.A.’s evidence. More specifically, I accept his evidence that:
(i) Other than the one occasion referred to above where her body language was of concern to him so he texted her about it, D.S. did not appear to be uncomfortable during sexual activity;
(ii) D.S.’s relationship with her mother was volatile, at times abusive, and fraught with disagreements, arguments and concerns;
(iii) He did not physically or sexually assault D.S.;
(iv) He complied with many requests from D.S. to bring her food (including ice cream) because he wanted her to gain weight;
(v) He did not author any of the text messages on D.S.’s phone that she denied or could not recall sending;
(vi) His text message response of “LOL” to an exchange on May 20, 2015 where D.S. informs him that they cannot have sex for a month coming after she had been hospitalized for two months during which the parties also abstained from sexual relations;
(vii) He never barricaded the bedroom door at I.S.’s house and that most of D.S.’s fainting spells occurred after her showers; and
(viii) He received a text from D.S. near Valentine’s Day in 2016 where she stated that she tried to initiate sex with him but he did not want to.
[190] The text messages, which I accept as facts, contradict much of D.S.’s testimony. Her explanations regarding many of these texts that she disagrees with or denies sending or cannot recall sending are both irreconcilable and illogical. Her testimony covered a range of explanations from “I did not send them”, to “I did send them but they were lies to make the defendant happy”, to “he took my phone and sent them to himself”. The cumulative effect of these varying and internally inconsistent explanations make them implausible and unworthy of belief in the context of the evidence as a whole.
[191] D.S. and her mother say they enjoyed an excellent relationship. The text messages clearly and repeatedly suggest otherwise. D.S. says B.A. was always mad, angry and controlling. The text messages suggest otherwise on at least some occasions. D.S. says B.A. made fun of her weight and pressured her to eat less and lose weight. The text messages suggest otherwise.
[192] Simply put, there are too many significant discrepancies, both internally within her evidence and externally when compared to other evidence, to safely rely upon much of D.S.’s testimony.
[193] There is no denying that D.S. went through a significant transformation in her mood, her happiness and her ability to cope after commencing to live with B.A. She endured significant mental and physical health struggles. However, on the evidence before me, I cannot say that the marriage was the only, or for that matter, the most significant contributor to these challenges or changes. There is clear evidence of significant other stressors in her life such as her mother’s controlling and aggressive behaviour and a significant decline in her academic performance. It is as reasonable to infer that her mother and the on-going conflict were as much responsible for her rapid decline as it is to infer that it was B.A.
[194] I disagree with the Crown’s suggestion that her evidence is corroborated by the medical evidence. The medical evidence confirms problems with vaginal irritation, discharge, and bleeding and an operative procedure to address such concerns. It does not link the cause of such concerns to unwanted sexual activity. The medical evidence also fails to corroborate D.S.’s claim of extensive bruising and aggressive and repeated biting.
[195] Although I.S. corroborates some aspects of D.S.’s testimony, I have already outlined my reasons why I am skeptical about much of I.S.’s testimony. She also contradicts D.S. on a number of significant issues including seeing her completely naked on the floor of D.S.’s bedroom with no top on and describing her relationship with D.S. as “perfect”.
[196] Simply put, by not accepting much of D.S.’s or I.S.’s evidence and accepting much of B.A.’s evidence, particularly where it conflicts with their evidence, I am left with a reasonable doubt as to the absence of consent with respect to the sexual activity in question.
[197] I return to the governing principles established in W.D. If I believe the evidence of the defendant, which I do, that he did not commit the offence, I must find him not guilty. Even if I disregard or disbelieve his evidence, the evidence that I do believe on the element of absence of consent does not prove his guilt beyond a reasonable doubt.
Conclusion
[198] For the above reasons, I find the defendant not guilty.
“Justice M.A. Garson”
Justice M.A. Garson
Released: January 3, 2019
Court File No.: 126/17 Date: 2019/01/03
Ontario Superior Court of Justice
Her Majesty the Queen – and – B.A. Defendant
Reasons for Decision
Justice M.A. Garson
Released: January 3, 2019
EXHIBIT A
B.A.M. so u don’t like to have sex twice week 11:16 PM
(D) 1 (226) 456-1057 Lol I didn’t say that albi 11:16 PM
B.A.M. Am asking u 11:17 PM
(D) 1 (226) 456-1057 I don’t care lol as long as I’m with u 11:18 PM
B.A.M. Bass I feel bad for u after 11:19 PM
(D) 1 (226) 456-1057 Why lol 11:18 PM
B.A.M. U get sore and tired for 2 days after 11:19 PM
(D) 1 (226) 456-1057 Loooool 11:19 PM
B.A.M. First I felt bad bec I hurting u 11:20 PM
B.A.M. Wa hala2 your getting sore and tired 11:20 PM
B.A.M. :( 11:20 PM
(D) 1 (226) 456-1057 Lol 11:20 PM
B.A.M. Poor baby 11:20 PM
(D) 1 (226) 456-1057 No pain no gain su7 11:20 PM
B.A.M. Lol 11:21 PM
B.A.M. So the last time you didn’t feel any pain 11:21 PM
(D) 1 (226) 456-1057 Lol 11:22 PM
B.A.M. What that mean 11:23 PM
(D) 1 (226) 456-1057 I felt pain after bass not during 11:24 PM
B.A.M. Oh I see 11:26 PM
B.A.M. T. baby am going to make sandwich u want one 11:27 PM
[^1]: See R. v. Ewanchuk, (1999) 1 S.C.R. 330 [^2]: See R. v. Alboukhari, 2013 ONCA 581 at para. 42 [^3]: See R. v. Greer 2009 ONCA 508 at para. 6. [^4]: See R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.) at para. 47. [^5]: See R. v. R.V. 2018 ONCA 547 at para. 78. [^6]: See Exhibit A which is a reproduction of p.111 of Part 1 of the text messages filed at Exhibit #14.