Court File and Parties

COURT FILE NO.: 17-19636 DATE: 2020/03/02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – M.L.

Counsel: Caroline Thibault and Michael Boyce, for the Crown Ewan Lyttle, for the Accused

HEARD: December 2-6, December 9-11, 13, 2019- Reasons for Decision given orally February 18, 2020

Restriction on Publication

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

Reasons for Decision

A.E. LONDON-WEINSTEIN J.

Introduction:

[1] The complainant and the accused in this matter began their relationship in 2015 and moved in together shortly thereafter. They both had young children from prior relationships. The relationship was a volatile one and arguments were frequent. Both individuals abused cocaine and alcohol on a regular basis. The complainant maintains that the accused regularly physically and verbally abused her. The accused maintains that the complainant would continually berate and belittle him, and that he sometimes restrained her when she was assaultive but did not assault her. The accused maintains that the one time he hit the complainant in the eye in July was in response to her attacking him on the bed for not getting up to help with the children. The couple broke up after this incident where the complainant suffered a black eye during an altercation with the accused. The complainant created an elaborate plan to escape the accused by fleeing to her parents’ property in Prince Edward County. Her parents helped her prepare to escape without the accused knowing what was about to happen.

[2] One week after her escape, however, she returned to the accused with her child and moved in with him again, this time in a new apartment. The couple broke up that November. The accused says that he ordered her out of the house after she verbally denigrated his daughter. The complainant maintained that she left of her own accord because she could not take it anymore, although there were no other reported incidents of violence. Despite her purported fear of the accused, the complainant continued to voluntarily see the accused regularly after they were no longer living together.

[3] On February 20, 2017, she and the accused were celebrating his birthday. They consumed alcohol. They drove to a location on The Parkway to have consensual sex in her car. The complainant says she initially consented to sexual intercourse but that she stopped consenting when the accused began penetrating her anally. She says she did not consent to the vaginal intercourse after the anal sex either.

[4] Both the complainant and the accused testified in this trial. The accused also called a friend to testify as to events which occurred at the parents’ home when they were away. The complainant’s parents also testified, as did her friend. Police personnel involved in the investigation also testified. Mr. M.L. is charged with assault x 2, assault bodily harm, sexual assault, and with breaching his no contact provisions by contacting the complainant when prohibited from doing so by court order. The trial proceeded without a jury for 10 days.

Legal Framework:

[5] Both the accused and the complainant testified in this trial. Not surprisingly, the accused and the complainant had very different perspectives as to what transpired over the course of the relationship, and in particular what transpired on February 20, 2017, the date of the alleged sexual assault. This case focussed on credibility issues. The issue to be determined was whether the Crown had proven that these events occurred at all. There is no doubt that what the complainant alleges constitutes sexual assault. Sexual assault is an assault of a sexual nature such that the sexual integrity of the victim was violated: R. v. S. (P.L.), [1991] 1 S.C.R. 909. A person commits a sexual assault when, without the consent of another person, he applies intentional force in circumstances of a sexual nature to that other person, directly or indirectly. In this case, the complainant alleges that Mr. M.L. touched her without her consent in a sexual manner by penetrating her anally and by continuing vaginal intercourse after the anal sex in the absence of her consent. There is no issue that the complainant maintains that she did not provide consent. Consent is assessed subjectively and determined by reference to the complainant’s state of mind toward the touching, at the time it occurred: R. v. Ewanchuk, [1999] 1 S.C.R. 330. The Crown must prove, to demonstrate the requisite mens rea, that the accused intentionally acted and that he had to be aware of, or wilfully blind or reckless to, the victim’s lack of consent to the sexual act. There is no issue as to honest but mistaken belief in clearly communicated consent in this case. The issue is whether these events have been proven. The case turns on credibility assessments which I must make in determining whether, when I consider the whole of the evidence in this case, I am satisfied that guilt has been established beyond a reasonable doubt.

Issues:

Evidence of the Complainant:

[6] The complainant is 28 years old and holds a master’s degree in global affairs from the University of Toronto. She also holds a bachelor’s degree in international development and economics from the University of Ottawa. She has one son, D., who is eight years old.

[7] The complainant met the accused at the daycare where her son and his daughter S., who was the same age as D., both attended. The couple began dating and moved in together shortly thereafter, in July of 2015.

[8] The complainant was either in school or employed with the federal government over the summers during her relationship with the accused. The accused was employed as a stair finisher.

[9] The accused was unable to maintain regular employment during the relationship, although I accept that prior to meeting the complainant he had held a good paying job for a number of years.

[10] The complainant maintained that the accused would not get out of bed and did not finish jobs and got fired. The accused maintained that the complainant was unable to manage the two young children alone while he was working long hours. As a result, he left work frequently at her request and was eventually terminated.

[11] The accused lost his job in the fall of 2015, which sparked arguments. The complainant admitted that she participated in these arguments and sometimes precipitated them. The couple had a significant cocaine habit. They did cocaine in her car, in the washroom at Chapters, and on most weekends at home when the children were away.

[12] Prior to moving in with the accused, the complainant had always resided with her son at the home of her parents.

[13] The couple were living on Lassiter Terrace with the two children in the fall of 2015. Mr. M.L. had lost his job. The family was being supported primarily through the student loans which had been granted to the complainant. The couple both had their children with them during the week. On weekends D. would visit his grandparents and S. would go to her mother’s home. This left the weekends free for the complainant and the accused to drink alcohol and use cocaine.

[14] The complainant blamed her eventual isolation from her parents on her relationship with the accused. She testified that she would slowly but surely stop seeing her mom and dad and that this was a direct result of being with the accused. The complainant testified that the accused would make her think that her parents were not to be trusted and that there was no benefit in seeing them. She testified the only time she saw her parents was when she dropped off D. for them to babysit so she and the accused could “have the weekend off.” However, the complainant admitted she did not want her parents to know that she was using cocaine, although she said she thought they knew. Her parents, for their part, seemed genuinely surprised to apparently learn for the first time in this trial that G.S. had a cocaine issue in the past, and had a cocaine addiction at the time she was seeing Mr. M.L.. Both parents seemed to be of the view that her prior treatment for drug addiction was for softer drugs, such as marijuana. From their evidence, I infer that the complainant was concealing her cocaine addiction from her parents. I consider this to be relevant as it is an alternate and equally plausible explanation for the alienation from her parents which GS was experiencing when she was involved with Mr. M.L., as opposed to Mr. M.L. keeping her separated from her parents.

[15] The complainant testified that Mr. M.L. thought her parents did not like him and would question her regarding her conversations with her parents when she returned from visits. She therefore rushed her visits with her parents to avoid provoking a negative reaction from the accused when she returned home.

[16] From the period of January to March of 2016, the complainant testified she only saw her parents twice, aside from dropping off D. on the weekends.

[17] The accused was not able to maintain employment. Arguments were frequent, but physical abuse had not yet occurred.

[18] Toward the end of April in 2016, the complainant asserts that the accused became abusive for the first time. She testified the accused grabbed her and she fell into a door frame and got a bruise on her upper arm. She testified the accused did not push her and she fell into the door frame backwards. The complainant at the time thought that this incident may have been an accident. She denied using any physical force against the accused.

[19] In her evidence-in-chief, the complainant testified that at her birthday party on April 29, her mom noticed the bruise on her arm and asked her about it. The complainant did not want to worry her mother and so she said it was nothing and she could not recall how she received the bruise.

[20] The accused was at that time seated between her mother and herself. She loved the accused and did not think her mother needed to know that they had an argument which resulted in a bruise. The evening continued and the family ate dinner. A significant argument unrelated to the accused broke out between family members. The complainant described this argument as bantering between family members.

[21] In the car on the way home, the accused, according to the complainant, raised the issue of what she had said to her mother regarding the bruise. He advised her she should give her mother a concrete answer, instead of saying she did not know how she got the bruise.

[22] The complainant testified that her older brother made comments which were inappropriate, and she and the accused got up and left the dinner table. The discussion which provoked the argument had been about rape culture at the University of Ottawa.

[23] In cross examination, the complainant agreed that the argument regarding rape culture was not started by Mr. M.L.. His role had been to back up the complainant in the argument. She agreed this is something which a good boyfriend would do. She also agreed that Mr. M.L. had not done anything inappropriate at the dinner table. She agreed that she was angry at her parents and her brother and that the fight was severe enough that it could make any child not want to speak to her parents for a few weeks.

[24] The complainant claimed that she could not recall any other significant details regarding that night.

[25] However, on February 22, 2017, she typed a statement herself which she submitted to the police. She had sufficient time to write it and reflect on its contents. She testified that this statement was truthful and accurate and that she did not embellish the truth.

[26] In that statement, the complainant wrote that her mother had observed bruising on her arm and asked her about it. The accused overheard her mother and the complainant made an excuse about it to avoid his abuse when they left to go home.

[27] The complainant wrote that this triggered something in the accused and the discussion intensified to such an extent that the accused started screaming at the entire family and showed a side of himself never seen before. The complainant wrote that the accused threatened the family to the point of tears and ordered her to leave. This account of the birthday party was a completely different version of events than the complainant had testified to in this trial.

[28] Defence counsel pointed out the significant discrepancy between the statement and her evidence in cross-examination. When confronted with the discrepancy, the complainant agreed that Mr. M.L. had done nothing inappropriate. When confronted with her statement containing details about the accused apparent hysterics, the complainant claimed she could not remember.

[29] The complainant said she would not characterize her statement to police as a lie and claimed that she did not remember events correctly. When defence counsel pointed out that she had agreed that Mr. M.L. had done nothing wrong and wanted to leave, the complainant claimed she could not remember whether Mr. M.L. had done anything wrong.

[30] The complainant’s parents and the accused testified about the birthday dinner incident. Mr. M.L. had never attended the University of Ottawa as a student and, in fact, had not completed his high school education. I find as a fact that he was not involved in the genesis of the rape culture argument at the birthday dinner table. While I have a great deal of difficulty with Mr. M.L.’s credibility on other issues, I am free to accept some, none, or all of the evidence of any witness.

[31] I accept his evidence that he was supporting his girlfriend in this argument and that he wanted the argument to stop as it was in front of the children. I also find that the complainant’s father, S.S., took umbrage with the accused speaking up in defence of the complainant to her brother and that the father rebuked the accused in front of the entire family.

[32] In assessing the credibility of witnesses, there are matters in which it is understandable that evidence may be inconsistent or a witness may be honestly mistaken. However, there are matters where it is unlikely, due to the circumstances presented, that an honest witness would be mistaken. I find that the complainant would be unlikely to have been mistaken about how the argument at the birthday party transpired.

[33] The birthday party was an event being held in her honour. The entire family was present. The evening ended in a fight in front of the children which resulted in her leaving her own party. The significance of that event makes it unlikely that she could be honestly mistaken about the behaviour of Mr. M.L..

[34] I find there was a significant discrepancy between the complainant’s evidence in cross-examination regarding the accused’s conduct and her statement which she submitted to police that she typed herself. I find as a fact that the accused was simply supporting the complainant in her dispute with her brother and that he did not threaten the family to the point of tears.

[35] When confronted with the discrepancies between her evidence and the statement, the complainant claimed she could not recall if the accused had done anything wrong. I do not accept that she could not recall such a significant event, and I find that the complainant said that she could not recall in order to avoid admitting that her statement to police was untruthful.

[36] After the birthday party in April, the relationship between the accused and the complainant deteriorated. The complainant testified that the relationship never fully recovered from an argument which erupted on her birthday when she, the accused, and her best friend (Not E.N.) had gotten very drunk and done a lot of cocaine.

[37] After her birthday party, arguments escalated. In May and June of 2016, the complainant said that the accused would punch her in the arm. He would throw things at her. Finances were also a source of argument, as were the children.

[38] The family moved to Gatineau from their home on Lassiter Terrace. The complainant testified that the physical abuse became frequent after the move. She testified that the accused choked her and hit her in the leg so hard that she could hardly walk.

[39] The complainant testified that the accused threw a yogurt container at her in the car and there is still a stain on her car roof as a result. She further testified that he punched her in the upper arm area frequently.

[40] The Crown asked the complainant if she was ever violent with the accused. She responded, “[N]ot where I start it. In certain cases where I would run into another room or push him away, but that was someone is punching you or hurting you and you are defending yourself to run away somewhere else in the house.”

[41] The complainant said she could recall the yogurt flinging incident vividly as they were in the car and arguing and the children were present. The accused threw the yogurt at the complainant and punched her in the arm when she was driving. The car did not swerve as a result of the blow.

[42] Count three of the indictment particularized the assaultive behaviour as occurring between July 1, 2015, and February 20, 2017.

[43] At trial, the complainant disclosed new incidents for the first time. One of the newly disclosed incidents involved a trip to Mont Cascades water park.

[44] The complainant testified that she and the accused attended the park with the children. The complainant and the accused were drinking at the park. The complainant testified in chief, “I won’t lie, we had a few drinks when we went there and were both not necessarily completely sober. I know I drove and that is not good.”

[45] However, in cross-examination regarding her sobriety, the complainant said she did not think she was drunk because she was driving. She said she realized it was a bad idea to drink and drive, but she did not know if she was above the limit. She denied being able to recall telling the Crown that she was not necessarily sober in her examination-in-chief. The complainant is an intelligent woman with an advanced degree. I appreciate that she was probably nervous testifying in this trial, but I do not accept that she had forgotten her earlier evidence. I find that the complainant sometimes resorted to claims of memory lapse when she did not want to answer the questions posed directly.

[46] I find as a fact that the complainant confronted a woman who was present in the park with her child because the complainant thought the woman was “checking her boyfriend out.” The complainant admitted she gave the woman the finger, told the woman to “fuck off” and advised the woman to leave her man alone. The complainant said she could not remember if the accused had to physically restrain her to prevent her from fighting with the woman. She agreed her conduct was aggressive.

[47] When defence counsel suggested this incident depicted her ability to become aggressive for no reason, the complainant replied that “it happens to the best of us. It does.”

[48] She agreed that the accused wanted her to stop but said that she was only exhibiting the same type of jealous, possessive behaviour which the accused exhibited toward men who expressed interest in her.

[49] The complainant testified that when they got in the car the accused punched her in the arm. She was driving the car at the time. She could not recall if the punch impacted her driving. She could not recall if the punch left a bruise. She could not recall the words the accused used in the car or whether there was conversation.

[50] The distance from the water park to their home in Gatineau was about 15 minutes. The complainant testified that after the heated argument and the alleged punch, the accused fell asleep in the car before they arrived home. I find as a fact that the complainant confronted a woman in the water park who was with her child because she believed the woman was flirting with the accused. The fact that the woman had her child with her and the fact that the complainant had her son and the accused’s daughter with her did not deter her from angrily confronting a stranger. I find as a fact that the complainant and the accused had been drinking sangria, that the complainant was not sober, and that she started a fight with a stranger.

[51] This incident demonstrates to me that the complainant was capable of being aggressive and unpredictable in a public setting in the presence of children.

[52] According to the complainant, within a few minutes of angrily punching her and being embroiled in an angry argument, the accused fell asleep during the 15-minute drive home.

[53] The complainant also disclosed for the first time that the accused had punched her in the leg while in their home in Gatineau. The complainant said they were arguing, and she ran into their bedroom and curled up in a ball on the bed. The accused, according to the complainant, punched her in the hip area. She thinks she had a bruise but the pain felt as though it was emanating from the bone. She cried. She could not recall many other details as she said this was one of many instances of abuse and the details became jumbled over time.

[54] The complainant also testified that the accused strangled her when they were living in Gatineau. His hands were wrapped around her neck with such force that she hit the floor. He continued to strangle and choke her when she was on the bathroom floor. She could not recall how the incident ended, but she did not lose consciousness. She could not recall if she did anything to make him stop. When asked if she had any visible injuries from being strangled, she responded that she had a bump to her head.

[55] The complainant was asked whether anyone commented on her injuries during this time given that she was alleging a near constant stream of physical abuse. In response to this question, she testified that the accused would strategically injure her in areas of her body where the injuries would not be visible. She testified that the only visible injury was the black eye which she received on July 28. However, the complainant described a violent incident of manual strangulation with both hands by the accused who was physically superior in strength to the complainant. She denied she had visible marks on her neck after the strangulation. She could not recall if his hands ever left her neck. I find that even if no marks were left on her neck, this incident of manual strangulation, if it occurred, contradicts the complainant’s statement that the accused only targeted areas of her body which were not visible.

[56] Another incident that was referenced frequently in this trial was the incident in June 29, 2016, which occurred at the home of the complainant’s parents when they were out of town. Her older brother, his girlfriend, and the girlfriend’s best friend, N.D., were in attendance. A man named N.P. was also present.

[57] In her examination in chief, the complainant testified that she arrived with the accused and with her child, D., before 7:00 p.m. She was having a good time. The accused and the others went upstairs for a cigarette and she and her older brother remained downstairs chatting.

[58] The accused, according to the complainant, walked into the room and accused the complainant of talking about him behind his back. The complainant conceded she had a few drinks but insisted it was not nearly as much as her brother and the accused had.

[59] The complainant explained that her brother and the accused got into an argument which she tried to defuse. Both the accused and her brother were livid. The person known as “Little N.”, who was N.P., started to get involved in the dispute, according to the complainant. The complainant said she had to almost physically restrain Little N. He is the type of guy who would come after someone if they “mess[ed] with one of [his] boys”, according to the complainant.

[60] Despite the fact that a fight was brewing and she had to physically intervene with Little N., the complainant testified that she left to go upstairs for a cigarette.

[61] After the cigarette, she returned with K., who tried to calm down her boyfriend. The complainant tried to calm down the accused.

[62] The complainant testified that the accused then threatened her brother with an X-Acto knife. The accused, according to the complainant, wanted to leave and wanted her and D to leave as well.

[63] The complainant testified that she left with the accused and her son D. and drove to the home of C.B., who was a friend of the accused. In the parking lot near the home of C.B., the accused, according to the complainant, punched her in the arm.

[64] The complainant explained that, when they arrived, C.B. was still awake as his girlfriend was present. She said she might have had injuries, but she cannot recall them.

[65] In cross-examination, the complainant said that C.B. was never at her parents’ house at all. However, C.B. testified in this trial that he attended the home of the complainant’s parents on the night of the incident between the complainant’s brother and the accused. C.B. testified that the accused asked him to come and pick him up and he did so. I find C.B. to be a credible witness and I accept all of his evidence. I find as a fact that C.B. attended the home because the accused wanted to leave with him. C.B. testified that the accused was getting into his truck when the complainant came outside. The accused then went and got into the car with the complainant and they followed C.B. to his home. The complainant completely denied that this happened.

[66] I find the complainant’s version of this incident incredible. I accept that C.B. attended the house despite the complainant’s denial of the fact. I do not accept that she would not have been aware that he was present, especially since the accused left his friend’s vehicle to enter her car and they followed C.B. to his home.

[67] I also find it incongruous that the complainant would be practically holding back little N.P. to stop a physical fight breaking out, but then in the middle of that pending fracas suddenly leave to go upstairs to have a cigarette.

[68] Further, when the complainant gave her evidence in-chief, she failed to mention that her brother armed himself with an axe in the conflict with Mr. M.L.. This fact, which was quite salient, did not emerge until cross-examination.

[69] Further, the accused, the complainant’s brother, and the complainant attended Lafayette Bar to purchase cocaine which they consumed that evening. The complainant claimed in cross-examination that she could not recall if she attended. I find it incredible that she would not recall this incident. Mr. M.L. and her brother did not get along well. Mr. M.L. did not drive a vehicle. Mr. M.L. testified that the complainant came with them to purchase cocaine. I accept his evidence on this issue and I find as a fact that the complainant, her brother, and the accused went to Lafayette Bar to purchase cocaine. I find the complainant’s “memory lapse” to be an avoidance technique to avoid having to admit that she was involved in purchasing cocaine with her brother and the accused on the night in question.

[70] When defence counsel suggested to the complainant that she transferred money to pay for the cocaine, she said she did not recall going so she did not know. She said it was possible that she emailed the money, but she did not know for sure. I find this was something about which she would not likely be mistaken.

[71] Defence counsel pointed out that in her statement to police on March 1, 2017, she indicated that there was an email transfer of money which helped her pinpoint the date. However, she neglected to mention that it was for the purchase of cocaine.

[72] The complainant said she could not remember whether she told the police about the purpose of the money transfer.

[73] When defence counsel suggested that she and her brother got into another argument she said she could not recall. Nor could she recall whether the accused had to intervene in that argument. When it was pointed out to her that she failed to mention her brother retrieving the axe, she said she had no idea whether she had informed police regarding the axe. Again, I do not find that her memory was unreliable or that she could not remember these incidents, which were not minor details. I find that the complainant was feigning memory lapse to avoid answering direct questions by defence counsel.

[74] Despite not recalling whether she had told police about the axe, the complainant asserted that she thought that the accused brandished the X-Acto knife before her brother armed himself with an axe.

[75] Credibility evaluations are difficult for judges. We were not present at the time that these incidents were alleged to have transpired. We meet the witnesses briefly under circumstances in which most people feel somewhat out of their natural element. We have to evaluate whether we accept what is being said, and if so, by what margin; in other words, how much weight can we attach to evidence that we accept. One of the ways judges assess credibility is to compare what the witness is saying in the witness box to what they said on prior occasions, whether or not they were under oath: R. v. G. (M.), (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 8, leave to appeal refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times or from neglecting to refer to certain events at one time while referring to them on other occasions.

[76] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: R. v. G. (M.), at p. 8.

[77] The complainant failed to mention in her evidence in chief or in her police statement that her brother had armed himself with an axe during this incident. She also claimed to not recall if she was present when she, her brother, and the accused went to buy cocaine. She claimed that C.B. was not present at the house when he was present to pick up the accused. An honest witness, in my opinion, would not forget these facts.

[78] These factors were significant and important elements of what transpired on the evening in question. I find that the evidence of the complainant in regard to what happened during the incident at her parent’s home was replete with such critical omissions. She said she could recall transferring the money to her brother when she gave her police statement. It seems implausible to me that she could not recall when asked in this trial whether the money transfer was to purchase cocaine. I conclude she was not being honest when she said she could not recall.

[79] I also find it incongruous that the complainant insisted that the accused hated the police yet testified that he wanted to be a police officer but failed the English exam required to enroll in police foundations at Algonquin College. I also accept the accused’s evidence that he spoke to a neighbour, who was a police officer, when the Gatineau home was burglarized. The accused knew the neighbour was a police officer. If the accused despised police as described by the complainant, I do not believe he would have tried to become a police officer or gone over to speak to his neighbour about becoming one.

[80] Defence counsel suggested to the complainant that she was the intellectual superior of his client and that she lorded that fact over him. The complainant appeared to be well aware of what counsel was suggesting. When he suggested to her that she told his client that she could not believe he failed such a simple test, the complainant claimed to not recall whether or not the accused failed the test. I do not accept her evidence that she could not recall whether the accused passed or failed the test. The complainant testified she was supportive of the accused and that she encouraged him to take the test. It seems unlikely to me that she could not recall the outcome of the test. I find that she did not wish to admit that she knew he failed because she was aware that this admission may lend some credence to Mr. Lyttle’s theme which portrayed her as a person of superior intellect and education who behaved condescendingly to a person with less education and less intellectual capacity. I am not finding that the complainant behaved condescendingly to the accused. I am merely saying that I do not believe that she had no knowledge of him failing the test, and I find that she was aware of the tenor of counsel’s suggestion and wished to avoid that inference being drawn by the court.

[81] After the incident at her parents’ home where the complainant claimed that the accused punched her in the arm at C.B.’s home, there was an incident where the complainant sustained a black eye. She testified that the accused punched her in the eye when they were arguing over the lunches for the children. This argument took place at the home of the accused’s mother where they were staying with their children.

[82] The accused testified that the complainant was angry at him for not getting up that morning and helping get the children ready for school. He testified that the complainant assaulted him while he was sleeping, and he struck out at her and hit her in the eye.

[83] The complainant testified that prior to the accused striking her, the accused and the complainant were in a heated argument. She testified that tensions were high, and she knew it was bad. However, the complainant testified that

I must have said something that pissed him off like right off like I mean I am a tough girl. I am not I won’t let somebody and this probably why we would always butt heads I am not a girl who will allow a man to scream and do all these things…I as best I could I will, I won’t, I will stand my ground. I must have said something to offend him, but he slapped me across the face, an open hand slap into my eye and I nearly lost consciousness and it caused a bruise, a black eye and I ran to the washroom and it puffed up.

[84] I find this comment by the complainant describing herself as a “tough girl who would not let a man scream and do all these things” to be at odds with how she described herself as being a terrorized victim of the abuse of Mr. M.L.. At other points in the trial, the complainant depicted herself as someone who was cowed by fear of the accused.

[85] The complainant said after she was struck, she saw a bunch of stars and everything went black and she closed her eyes. She was in shock. She hit the blow-up mattress as she grabbed on to the bed. The complainant said the accused’s mother returned to the apartment on J[…] Crescent after a few minutes. The complainant covered her eye with makeup to conceal the bruise. She told the accused’s mother they had a fight but avoided any detailed questioning.

[86] She testified that she and the accused took the children to the summer daycare. At that point, rather than going to work, the complainant decided to go to Calypso water park with the accused for the day. The complainant testified it was her idea to go to the water park for the day. The complainant testified that the accused was sorry for her appearance and was “very much willing to brush it under the rug.” The complainant could not recall the conversation which led her to conclude that the accused was sorry.

[87] When the Crown asked the complainant what she thought about her decision to go to the water park the day she was punched in the eye by the accused, the complainant responded that this was a rational decision for her.

[88] She said that she did not want to be with a man who would do this to her, so they went to Calypso water park and had a really good time. She wore sunglasses to conceal her puffy eye.

[89] The injury to her eye was visible for a week or two after the incident.

[90] The complaint took a photo of the injury to her eye but she believed the accused deleted it from her phone when she reunited with him. She and the accused both shared passwords to their devices with each other.

[91] The next day she had lunch with her mother who noticed her black eye. The complainant advised her mother that the accused was abusing her. They arranged for her to flee to Prince Edward County.

[92] The complainant testified that she was frightened as she believed the accused had connections to organized crime. She testified he had threatened to burn down her family’s home. He made references to bikers and criminal connections according to the complainant. I allowed the evidence regarding organized crime to the extent it was probative of the state of mind of the complainant. It also explained the flight to Prince Edward County. As indicated, I find other evidence contradicted the complainant’s claim that she feared the accused. I weighed the evidence, along with all of the evidence at trial, including the evidence of the accused, to arrive at a determination in this case.

[93] The complainant testified that it had only been a year, but she had given everything to the relationship and did not want to accept it was over. She also had made a significant financial investment.

[94] For the first time, at trial, the complainant revealed that she had given the accused a false story about going to Lac St. Jean in order to throw him off the trail. In fact, she went to her parents’ property in Prince Edward County.

[95] The complainant testified that the accused texted her frequently during that week. She could not recall the content of the messages. She said that her phone broke or was lost and she did not have it anymore.

[96] She returned to Ottawa after being with her parents and D. for one week and immediately reunited with the accused. She was asked by the crown if she could remember where she slept the first night she returned to Ottawa. She could not recall.

[97] The complainant and the accused got an apartment of their own on J[…] Crescent. They remained together until they broke up in November. The complainant moved back in with her parents, although she testified that the accused was on his best behaviour and woke up every day with the children and was working very hard to keep her happy.

[98] The complaint said she knew in the back of her head that if he assaulted her once he would do it again and so she left, despite the fact that she acknowledged that the accused was working very hard to make things work between the two of them. The accused disputes this version of how the relationship ended. He claimed that he ended the relationship.

[99] The accused was upset when she returned to her parents’ home. She continued to meet up with the accused. She agreed in cross-examination that she attended at seedy hotels with the accused on a number of occasions. They did cocaine together in these hotels and drank alcohol. She did not advise police that she continued to see the accused after they broke up because she felt this was irrelevant. She claimed she could not recall if she advised her parents she was seeing him in these hotels. I do not accept her evidence on this issue and find that she would not have advised her parents of this fact as she knew her parents did not approve of the relationship and all that had transpired. I ascribed strict limits as to what areas the accused could cross-examine in relation to his contact with the complainant after the J[…] Street apartment. Please see my separate ruling on this issue. The accused was not permitted to cross-examine the complainant in relation to any purported sexual activity which did not form the subject matter of the index offence. However, the fact that the complainant continued to do drugs and alcohol with the accused, alone, was relevant to her assertion that she feared the accused. I find as a fact that the complainant voluntarily continued to see the accused socially after leaving the J[…] Street apartment which they had shared. Her parents, I find as a fact, were not aware that she was seeing the accused socially. Her father was of the view that she may have seen him to pick up or exchange belongings, but it was clear that the complainant concealed the fact that she continued to see the accused from her parents.

[100] In February of 2017, she met the accused on the Friday before his birthday. On his birthday on February 20, the complainant reluctantly agreed to see the accused. She was reluctant as it was a school night for her.

[101] The complainant said she did not recall if she told her parents where she was going. She said that she probably did not because they cringed at the idea of her seeing the accused. From the evidence of her parents, I infer that they were not aware that the complainant was continuing to see the accused after she left him in November, aside from formal meetings to pick up an item that may have been left behind in the move. I do not accept that the complainant could not recall if she told her parents. I am certain she did not based on the testimony on this subject which I heard from the parents.

[102] The accused did not drive, and so the complainant picked him up at his mother’s apartment. They went to the Wine Rack and bought a bottle of wine and then to the Old Dubliner pub in the Byward Market area. They kissed and flirted and had some drinks. They shared a pitcher of beer and had one or two shots.

[103] They drove to a secluded area off of The Parkway and had vaginal sex. The complainant consented to the sex initially but testified that the accused wanted anal sex, which she refused. Despite her refusal, the complainant said that the accused proceeded to engage in anal sex. Further, after the anal sex, he resumed vaginal sex for which he did not ascertain consent.

[104] The accused testified that they engaged in consensual vaginal sex. He denied having anal sex with the complainant, he denied having “doggy-style” sex with the complainant, and he denied that the complainant ever said no, or indicated anything other than consent.

[105] The complainant said she left her shirt on but removed her other clothes and they proceeded to have sex in the rear of the car.

[106] The complainant testified the sex began as missionary and proceeded to doggy style and then, without her consent, proceeded to anal sex. The sex got too rough and the complainant said she told the accused to stop. The complainant could not pinpoint at what point exactly the sex became too rough.

[107] The sex began to hurt as he was being too rough and she tried to calm him down and said, “chill out a little bit.”

[108] She said, “no and slow down relax.” She said, “you are really hurting me and you need to stop.”

[109] The accused, according to the complainant, did not respond in any particular way to her saying “stop”, she said. She recalled him continuing to say that he wanted to “put it in her ass please.”

[110] At trial, she testified, “I am like no. First of all it is in the car. So no. That is going to make a mess. And then no. You are going really hard and no.” He asked to put his penis in her rectum two or three times, she said. The complainant said she probably jumped and pushed him away and tried to push him away and he kept going. She said, “no and stop. That is enough I am done.”

[111] He eventually stopped the anal sex and reverted to vaginal sex again. She did not know how long she had sex. She did not consent to this additional vaginal sex. She did not think he ejaculated. She was 5’11’’ and had a slender build and he was much stronger than she was at the time. She had a cigarette in the back seat. She was not sure if he did too. She drove the car and then stopped it and said, “do you know what you just did? Do you know?” She said that the accused said, “no, no. I did not even come and I did not even enjoy myself, not fun for me either.” She then said to the accused, “M.L. I said ‘no’ multiple times, I was crying and you did not stop.” The accused said “yeah” but did not apologize according to the complainant. The complainant had a bruise on her leg but was not sure how she received this bruise. Given the fact that the complainant and the accused had both consumed alcohol and were having sex in the back of her car, I am not satisfied beyond a reasonable doubt that this bruise was inflicted as a result of any assaultive behaviour on the part of Mr. M.L.. The complainant could have simply bruised herself during the consensual sexual activity in the back portion of the car.

[112] She stopped in an east end neighborhood near Blair Street and she dropped him off. He was residing with his mom in her J[…] Street apartment. The complainant contacted her friend E.N. and told her what had happened. E.N. testified that the complainant told her she had just been raped by the accused. E.N. described the complainant as being very upset during the telephone conversation. The statement by the complainant to E.N. is a prior consistent statement. I did not admit it for the truth of its contents. I admitted this evidence only insofar as it provided an explanation for the complainant’s decision to wake her father. (It was her friend, E.N., who suggested she do so.) It provided insight into the complainant’s state of mind as E.N. confirmed that she was very upset.

[113] The complainant said she was hysterical and probably incoherent. She went into her house and locked the door. D. had woken up. As she was going to sleep, she heard a knock on her window. It was about 1:00 a.m. in the morning. The accused was at her door, she said. She opened her door. She did not want to wake up anyone.

[114] The accused said he had been kicked out of his mother’s place and was asking for her help, she said. She felt that he wanted her to pay for a hotel. In his evidence, the accused denied being kicked out of his mother’s house.

[115] Despite wanting to not wake anyone up, the complainant claimed that she was screaming. Neither of her parents heard screaming that night.

[116] The complainant went back inside and called E.N. again. She believed that the accused looked visibly upset because he had been kicked out and not due to the fact that she had accused him of sexual assault.

[117] She felt that the accused needed her help.

[118] The complainant woke up her father at E.N.’s suggestion. Her father, S., called the police.

[119] The complainant did not report her allegation of sexual assault at the time when police arrived at her house. An officer advised her that there was no timeline to report abuse. Complainants in sexual assault cases may report allegations of sexual abuse at any time. Late disclosure of sexual abuse, standing alone, should never be the subject of a negative inference: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275.

[120] I did not draw a negative inference from the fact that the complainant did not wish to immediately report to police what had transpired. I did not accept her statement to E.N. for the truth of its contents. The defence in this case did not suggest recent fabrication. The statement to E.N. was a prior consistent statement, and I admitted it only to explain why the complainant suddenly called her friend in the early hours of the evening after a period of estrangement, to confirm that she was upset, and to explain why her friend urged her to wake her father.

[121] The complainant claimed that her fear that the accused was involved with organized crime caused her to hesitate before reporting this matter to the police. However, she eventually went to a justice of the peace to make a report. She was advised that she had better report the matter to police.

[122] She provided a written statement to Constable Babin, who also testified in this trial.

[123] She admitted, that despite her purported fear of the accused, and the fact that her father had accompanied her to court to seek a restraining order against the accused, that she continued to have contact with the accused.

[124] The complainant said she mainly spoke to him by text and over the phone. She said she could not recall if she saw him in person. My view of it was that if she had seen the accused, this was something that she would remember, given all that had transpired.

[125] Some of the texts sent to the accused and emails related to her having to go to court because she had been charged with driving without insurance. The insurance for the car had not been paid. She sought out the accused because, according to the complainant, he had experience being in court. The accused has no criminal record. I infer that she was trying to suggest that the accused had prior involvement with the criminal justice system in order to prejudice him in the court’s eyes.

[126] The complainant, despite her claim that she wanted nothing to do with the accused and that she had contacted police by this point, contacted the accused because she said she needed something. Other times the accused would contact her and tell her that he loved her.

[127] The complainant knew that she had gone to the police at this point but said she did not want the accused to think that anything out of the norm had happened, so she continued to speak to him, she said. The complainant testified that she did not think that the accused knew she had reported him to the police, she wanted to know what was going on with him as she had no protection at the time, and she did not know what the police were going to do with the information she had provided.

[128] The email exchanges from this period have Mr. M.L. expressing anger at the break up, swearing by saying “Fuck” over and over again.

[129] The complainant testified that she did not actually need the accused’s help with the insurance as she took care of it herself, but she wanted some guidance and was alone. “He was there with me and he was the one who was supposed to pay the insurance at the time but we won’t get into that,” she said. Again, I infer that the complainant wanted the court to know that not only was the accused involved with crime, but he did not pay her insurance bill, despite this being his assigned responsibility. Both the complainant and the accused wrote to each other that they loved each other. The complainant testified that she loved the accused at this point. “Feelings do not go away just because I went to the police does not mean I stopped loving him.”

[130] During the period after the accused was charged with sexual assault, the complainant installed an app on her phone. She recorded every call she received. She received a series of calls during the period from March 27 to the early hours of March 28.

[131] The accused was on conditions not to have contact with the complainant during this time frame. The accused denied that it was him making these calls. The complainant testified that his voice sounded different and not like him but she was sure that it was the accused. I am satisfied from the content of the calls, which were made an exhibit in this trial, that it was Mr. M.L. who was making the calls. I accept that the complainant recognized the person as being the accused. I also accept her evidence that no one else would be calling her in that context despite the fact that there was a beeping noise in the middle of one of the calls. At one point the accused is asking to see the complainant “tomorrow.” The complainant says, “No M.L, I have a full day tomorrow.” The accused says that he needs to see her.

[132] The accused says he loves the complainant and she responds that she loves him too. He makes sexual comments, including wanting to have sex with the complainant, who he calls by her first name. I am convinced beyond a reasonable doubt from the context of the conversation and based on the fact that I accept that the complainant recognized the accused and that she was not dating anyone at the time who would speak to her in that manner, that it was the accused on the phone. I also note that the accused did not correct the complainant when she referred to him by his first name.

[133] The defence asserted that the complainant saw the accused after February 20. The complainant denied that she did.

Evidence of the Complainant’s parents and her friend E.N.

[134] The complainant’s father, S.S., testified in this trial, along with the complainant’s mother, W.V. Both were senior public servants with the federal public service. Both S.S. and W.V. were urbane, articulate, and keenly concerned about their daughter.

[135] S.S. find that his daughter was withdrawing from the family while she was involved with Mr. M.L..

[136] He testified that the relationship seemed to develop very swiftly, which concerned him as a parent.

[137] The complainant seemed to her father to be anxious to leave after dropping off D. She evolved from being an easy, smiling laughing person to a quiet, more curt and short tempered individual. She lost weight, and her hair appeared less healthy. He noticed a bruise on her arm, with three to four pressure points that appeared to be consistent with someone grabbing her by the arm. He noticed this bruise in April of 2016.

[138] S.S. believed the birthday dinner was in May of 2016. I find as a fact that it was at the end of April, based on the evidence of the complainant and Mr. M.L..

[139] S.S. said that he observed his wife asking the complainant about a bruise on her arm at the birthday party, and that his daughter brushed her mother off defensively. This reaction struck him as odd. Mr. M.L. was in the house. S.S. noticed the bruise on his daughter on the inside of her arm.

[140] His description of the birthday dinner differed from that of the complainant and Mr. M.L.. S.S. said it was his son N.P. and Mr. M.L. who were in a dispute which was growing larger. He did not mention that his daughter was involved in the argument. W.V., his spouse, said that she did not know what the argument was about. She testified that she noticed a bruise on her daughter and when she mentioned it, her daughter said, “why did you have to spoil it by asking about the bruise?” SS said he observed bruising on the arm and he heard his daughter telling his wife to leave it alone.

[141] He could not recall what Mr. M.L. said, but he noted his tone was derisive and mocking. He said Mr. M.L. wanted to get the last word and he turned to N.P. and said listen to your dad.

[142] S.S. rebuked Mr. M.L. in front of the entire family by telling him that to speak on his behalf to discipline his son was out of line. He said that he asked Mr. M.L. to step outside to discuss the matter. S.S. said that Mr. M.L. took the cake, the cake fell on the ground, and his daughter S. was screaming.

[143] He said that a parallel fight was going on between his wife and his daughter. He testified that Mr. M.L. ordered his daughter to leave.

[144] The complainant herself testified that the argument was between her and her brother, and that Mr. M.L. was not involved in the argument regarding the cultural climate at the University of Ottawa. I find that S.S. omitted to mention his daughter’s involvement and placed most of the blame for the argument on Mr. M.L..

[145] He did not see his daughter for several months after this disastrous birthday party. When she was home in May, he noticed bruises on her arms. His daughter became defensive.

[146] On July 28, 2016, he received a call from his wife regarding helping their daughter escape from Mr. M.L.. His daughter appeared genuinely fearful when he saw her. He and his wife took his daughter and her son to Prince Edward County for a week. Her cellphone was constantly dinging when they drove up to the property. He noted bruises on her body when they were at the beach. He had never seen his daughter so unfocused and unable to articulate a course of action. He took photos of bruises on his daughter’s body at this time. He observed bruising to her eye during this week as well.

[147] Ms. W.V. recalled that when she met her daughter for lunch on July 28, 2016 that she was wearing dark glasses. Her daughter said that Mr. M.L. hit her and hurt her very badly. They devised a plan of escape. She noted bruises on the upper part of her arm on the left side. She testified that she had a good relationship with her daughter but did not know that her daughter had a problem with cocaine, either in the past, or during her relationship with Mr. M.L.. Ms. W.V. and her husband both testified that they were invited to an aborted dinner party at her daughter’s home. The accused denied that this happened and described the menu. W.V., found that Mr. M.L. was controlling, and it was hard to reach her daughter. She saw bruises on her daughter’s arms and mentioned it to her daughter. She saw her daughter just four times in June and did not recall seeing injuries. She recalled the incident where Mr. M.L. said he had been to China, according to her. Ms. W.V. also recalled seeing her daughter’s eye being very puffy and swollen when she had lunch with her in July when she left Mr. M.L.. She also had a bruise on her arm. There were emails which were made Exhibit 1 in this trial, which demonstrated the planning which went into escaping Mr. M.L..

[148] S.S. described his daughter during this time frame as appearing downcast and despondent. He could not recall how he learned that she was returning to Mr. M.L..

[149] His daughter was fearful of going to the police and also did not feel that the justice system would serve her well, according to her father.

[150] S.S. testified that Mr. M.L., at one point quite early in the relationship, claimed that he had a connection of some type to the Hells Angels motorcycle club. Mr. M.L. denied saying this to S.S. This conversation would have occurred very early in the relationship between Mr. M.L. and the complainant. I believe that this conversation likely took place. This evidence corroborates the complainant’s claim that she feared what Mr. M.L. might do if she left him or reported him to the police. However, while there was some evidence that Mr. M.L. may have boasted about having crime connections, much of the complainant’s activity belied her claim that she feared Mr. M.L..

[151] For example, she testified that she was not the type of woman who would tolerate his yelling at her or doing certain things. She also continued to see him after they broke up. I find that she did this of her own volition and was not being forced to see Mr. M.L.. I also do not accept her evidence that she was only seeing him to keep track of what he was doing. I find that this was a fabrication by the complainant to attempt to explain why she continued to see Mr. M.L., although she claimed he frightened her. I also find that by agreeing to see Mr. M.L. in circumstances where she was isolated, and using cocaine and alcohol, that she was freely and voluntarily choosing to do so. While it is possible that the complainant feared the accused because of things he may have said, or things that he may have done in the relationship, there is also a body of evidence which contradicts that fear. I agree with the defence that the complainant freely chose to attend seedy hotels with Mr. M.L., where she consumed cocaine and alcohol, and that she was acting in the manner of someone who was not afraid of being alone with Mr. M.L..

[152] In November of 2016, the complainant left Mr. M.L. and moved in with her parents. In the early morning hours of February 21, 2017, S.S. was awoken by his daughter who said that Mr. M.L. was present. He called 911. The complainant appeared ashen and frightened.

[153] Police attended and suggested seeking a peace bond. They pursued a peace bond. In cross-examination, it became apparent that while S.S. was aware that his son had picked up an axe handle during the fracas at his home while S.S. and his wife were away, but he omitted this from the statement he submitted in the hopes of having a section 810 order issued.

[154] I also find that when S.S. indicated in his statement seeking a section 810 peace bond, that Mr. M.L. was attempting to conceal the complainant’s whereabouts from her parents when they were living together on J[…] Crescent, that this was not true. In fact, the grandparents continued to pick D. up during this time, almost every weekend. They were certainly aware of where their daughter was living.

[155] S.S. also denied describing his daughter as a socialite and balked at the suggestion in cross examination. His daughter denied that she was a socialite. However, the statement which he submitted seeking an 810 did indeed say that “The self assured, outgoing socialite became morose, paranoid and recoiled.”

[156] S.S. was evasive and non responsive at this point in the cross-examination and simply responded, “I know what I meant by it,” when counsel attempted to probe this inconsistency.

[157] When asked whether he was aware that his daughter was using cocaine, he did not respond, but said that cocaine use would not justify aggression and rape. Again, I found that S.S. was being non-responsive. S.S. also testified that he was not aware that his daughter had a prior addiction to cocaine for which she received treatment. He believed that she had received treatment for softer drugs.

[158] Her mother W.V. was also a very involved parent but was unaware that her daughter had received treatment for cocaine addiction as a teenager. She too noted her daughter becoming more distant when she was seeing Mr. M.L.. She was unaware that her daughter had a cocaine addiction while she was seeing Mr. M.L.. I note that the complainant believed that her mother must have known of her cocaine addiction. She also was not aware that her daughter was seeing Mr. M.L. in November and December. She was not aware that her daughter was going to see Mr. M.L. on February 20. She advised the court that the complainant told her mother that the accused followed her home. This left her mother with the impression that the accused followed the complainant home, without the context of knowing they had been continuing to see one another. She also was unaware that her daughter was seeing him in December of 2016. She was unaware that her daughter went to Calypso water park the day when she was struck in the eye.

[159] When defence counsel pointed out to S.S. that D. was being dropped off every weekend, which was contrary to the assertion in the 810 statement that he and his wife were not able to see their grandson and their daughter, S.S. was non responsive and said, “ I am not sure I intended what you just said. If you can produce a record of how often they came I would be happy to say that. That is your job not mine.”

[160] I find that S.S. suggested that he was unable to see his daughter and his grandson, when in fact, he saw his grandson on most weekends, and that his daughter would drop D. off, or be present when her parents picked D. up. It was an exaggeration to indicate that S.S. and his wife were not able to see their daughter and grandson. I also find that S.S. was not willing to admit that he had exaggerated and became quite defensive in cross-examination.

[161] It was also apparent that S.S. had no idea that his daughter was continuing to see Mr. M.L. well after they were no longer living together on J[…] Crescent. His impression was that they may have met up to settle bills that Mr. M.L. was supposed to pay but did not.

[162] Clearly, the complainant was concealing from her parents the fact that she was seeing Mr. M.L. socially, and that she was still in love with him. He was unaware that she saw Mr. M.L. on February 20.

[163] Officer Nicolas St. Pierre Babin attended the home of the complainant’s family on February 20, 2017. He found the complainant to be fidgety and restless. She was sobbing intermittently. She declined the offer of an ambulance. The complainant declined to give a statement.

[164] Ms. E.N. also testified in this trial. She is a friend of the complainant. She confirmed that the complainant called her on February 20, 2017 before Mr. M.L. came to her parent’s house, and that police were called to indicate that Mr. M.L. had sexually assaulted her. This is a prior consistent statement and not admissible for the truth of its contents. However, it was admissible to explain the complainant’s state of mind, as she was very upset after the alleged sexual assault. It also was admissible as narrative, as it explained why the complainant woke up her father, as E.N., advised her to wake him. Ms. E.N. had known the complainant for a long period of time and noted that she had withdrawn from the friendship and appeared isolated when she was involved with Mr. M.L..

Evidence of the Accused:

[165] Mr. M.L. is 29 years old and the father of S., his daughter, who is now eight. He has custody of his daughter by court order and for the last three years has been involved with a woman named P. Mr. M.L. began dating the complainant in late April or early May of 2015.

[166] He testified that the complainant had previously received treatment for her cocaine addiction, and that her parents were aware of this fact.

[167] Mr. M.L. met E.N. on a prior occasion at the home of the complainant’s parents.

[168] Mr. M.L. had worked at Accurate stairs for three years prior to his meeting the complainant.

[169] A few months after becoming involved with the complainant Mr. M.L. lost his job at Accurate Stairs. I agree with the Crown’s submission that while Mr. M.L. chose to leave his job to spend time with the complainant, this was his choice. He clearly blamed the complainant for the fact he lost his job, when in fact, he was the one who chose to leave the work site to spend time with the complainant.

[170] He and the complainant moved in together shortly after they began dating. They were living in a home on Lassiter Terrace, and Mr. M.L. had found a new job at Classic Stairs. His schedule can only be described as gruelling. He was at work by 8:10 a.m., where he worked until 5:00 p.m. He would come home for dinner and then return to work until very late in the evening, or the early morning hours.

[171] Mr. M.L. testified that the complainant could not handle being alone with the young children for so long on her own. I accept his evidence on this issue. The complainant herself conceded that on one or two occasions she went to his place of work and asked him to help with the children. I find as a fact that this schedule contributed to rising tensions in the home. I accept Mr. M.L.’s evidence that when he got home at 2 or 3 in the morning, the complainant would sometimes be waiting up for him, and that as a result of his long hours, a fight would erupt.

[172] The complainant initially denied ever assaulting Mr. M.L.. However, in cross examination she admitted to throwing a plate, although she denied she threw it at him, throwing a dining room chair, and while she claimed to not remember throwing either a mirror frame, or a picture frame which was a gift to her, I do not accept that she could not recall, and I find that she did throw that frame at Mr. M.L..

[173] I also heard evidence that because Mr. M.L. did not drive, the complainant would sometimes have to pack the kids up in the car and go pick him up for dinner, and then return him to the workplace. I agree with the defence that after living with her parents and her son, that moving out of that supportive familial environment to the home of Mr. M.L. with his long work schedule, and coping with two children, was stress inducing and very difficult for the complainant. The fact that Mr. M.L. and the complainant both were using cocaine and alcohol on a regular basis also contributed to the stress of the household.

[174] Mr. M.L. kept losing employment, for which he blamed the complainant. I find that while she wanted his help with the children, she also wanted him to remain employed. He admitted he never told her his job would be in jeopardy if he continued to leave work to be with her. He registered for Ontario Works. When he was receiving Ontario Works, he admitted he did not get up in the morning to help prepare the children for school. He blamed the complainant for his loss of employment, when in reality, he never advised her he might lose his job, and he kept missing shifts.

[175] He testified that the complaint would slap him and punch him with the outside of her palm, and that they engaged in heated arguments. He tried to avoid the arguments by leaving for a cigarette, but he testified that the complainant would prevent his leaving, and they would have a big argument.

[176] He admitted to restraining the complainant or pushing her in order to stop her from hitting him. He claimed that he never made a comment about being affiliated to the Hells Angels to the complainant’s father S.S. I do not accept his evidence on this issue, and I find the comment was made.

[177] The complainant’s parents testified about an aborted dinner party where they were given potato chips, and dinner was cancelled at the last moment. Mr. M.L. testified that he indeed had a dinner party. I am unable to determine which version of the dinner party was correct. Mr. M.L. provided details as to the evening, the complainant did not provide direct evidence on this point, and both parents said they attended but were told dinner was cancelled. Mr. S.S. was incorrect about the date of the birthday party, so his recollection of events may be less reliable. In the end, I am not able to make a determination.

[178] The parents did not recall the dinner where the complainant’s grandmother was present, as was Mr. M.L. and the complainant. I find the parents were mistaken. Mr. M.L. gave a very detailed recall of that dinner. He met the complainant’s grandmother, who was the French voice of Marge Simpson of the Simpsons television show.

[179] Mr. M.L. said the family mocked him when he said he played baseball against China. He made this comment in an effort to participate in the conversation relating to the complainant’s brother leaving for South Korea to teach. The parents denied making mocking comments, or that S.S. made a homophobic joke which offended his son.

[180] I find that Mr. M.L., like the complainant in her evidence, was eager to paint the other side in as negative a light as possible. For example, he was asked whether the couple saw the complainant’s parents regularly in the fall of 2015 going into 2016. He responded that they had been to their new place and the complainant could get drunk and do drugs whenever she wanted to. She was excited to get rid of her son so that she could come back home and do drugs right away and pick up liquor. I find Mr. M.L. was attempting to portray his former partner as a woman who preferred booze and drugs to caring for her son. This was evidence of animus on the part of the accused toward the complainant. It caused me to treat his evidence with caution. The complainant gave her evidence in a similar fashion, trying to throw shade on her former partner at every opportunity.

[181] I find that Mr. M.L. had a chip on his shoulder regarding the fact that the complainant’ s family are educated and well off people, and he is not. This may have coloured some of his interpretations of things which occurred during his interactions with the family.

[182] In regard to the birthday party incident, the accused denied that any comment was made about a bruise on the complainant’s arm. He described the dispute at the table as being between the complainant and her brother. He testified that he asked the complainant’s brother to be quiet. The father then rebuked him for speaking out of turn to the brother. He denied making anyone cry. The complainant gave a similar version of the evidence at trial. I accept Mr. M.L.’s evidence regarding the dispute at the table. However, I do not accept his evidence that there was no discussion in regard to the bruise on the complainant’s arm.

[183] I find that Ms. W.V. did make an observation regarding a bruise on the arm of the complainant. Discussion of this bruise was also overheard by SS, who also observed bruising.

[184] Mr. M.L. denied brandishing an X-Acto knife at N.P. during the summer incident at the home of the complainant’s parents when they were in Italy. I find as a fact that he brandished the X-Acto knife, but that he did so in response to the brother arming himself with an axe and the fact that it was two men against the accused. All of the men had been drinking, and the accused and N.P. had been using cocaine.

[185] I accept the accused’s evidence that he and the complainant and her brother went to purchase cocaine at a bar in Ottawa. The complainant said she could not recall if she went on this trip. I do not accept her evidence.

[186] I also accept the accused’s evidence that he left the house and went outside to wait for his friend C.B. to come and pick him up. I accept the evidence of C.B. that he attended the house to pick up Mr. M.L. after being called by the accused.

[187] I find as a fact that the complainant emerged from the house with D. in her arms and got into her car. They followed C.B. home. I do not accept the complainant’s evidence that the accused punched her in the parking area near C.B.’s home. I accept that C.B. drove ahead of them. The complainant claimed to not recall this at all.

[188] I find that the complainant drove to the bar. The accused described her as the most sober person. N.P. purchased the cocaine, and they split it three ways.

[189] He denied ever sexually assaulting the complainant and maintained that they had vaginal intercourse in the back seat of her car that was consensual.

[190] In regard to the July 28 incident, the accused denied that the complainant asked him to get up in the morning to help with the children, although she usually would make that request if he did not help. Mr. M.L. said that he was sleeping on his stomach and the complainant was on top of him and hitting him. He said he came to his senses and hit her back. He admitted he was angry and that he meant to hit her to make her stop hitting him.

[191] In his statement to police, Mr. M.L. denied ever seeing the complainant with a black eye. This was a lie. At trial he tried to justify this inconsistency by saying he saw the eye puffy and red but not black. I find that he was being dishonest, and understood the import of the question, but tried to explain an inconsistency.

[192] The Crown suggested that when the complainant disappeared the day after Mr. M.L. smacked her in the eye, he knew she left because of his violence. I find it bizarre that the complainant would go to a water park with the accused after she alleges that he struck her in the eye in the manner she described. When the crown asked her how she felt about her decision to go to the water park now, she said it was a rational thing for her to do. I cannot be certain that the incident on July 28 did not unfold in the manner described by the accused.

[193] I also accept his evidence that he did not speak to the complainant regarding a story about attending her aunt’s house in Lac St. Jean. That detail emerged for the first time at trial. It was not part of the plan that was testified to by the parents. I find the complainant embellished her evidence by inserting that detail into her recounting of events.

[194] I also find that in light of all the circumstances, the accused likely knew that the complainant left in July as a result of the events from the day before. The Crown suggested that the accused and the complainant made up a story about the eye injury because he knew he struck the complainant in the eye. The accused said it was an accident on both of their parts. However, the Crown pointed out that he agreed that he hit the complainant intentionally. The accused said they made up a story so his mother would not become concerned. I find that the accused was trying to minimize striking the complainant in the eye. However, I am not certain how the event unfolded, and, given my concerns about the credibility of the complainant, I am unable to make a determination as to what happened on that day in July.

[195] However, while I do not accept much of what the accused had to say, I do accept some of his evidence. Similarly, with the complainant, I find her to be neither reliable, nor credible in the main, but I do accept some of her evidence, and in other instances where it was corroborated by other evidence.

[196] In this instance, I am not able to find as a fact what happened on July 28. I accept that the accused struck the complainant. However, when I look at the behaviour of the complainant as a whole, I am unable to rule out that she may have lost her temper with him when he refused to get up to help with the children and struck him. I accept that the complainant was someone who was capable of behaving aggressively and that she had, in the past, assaulted the accused during conflicts. She admitted to throwing items at him.

[197] I am not able to conclude from her absence the next day, that events occurred in the manner described by the complainant. I am unable to conclude what happened, as I find the evidence of the complainant to be unreliable at times. I also find her to be not a credible witness.

[198] The accused and the complainant had concocted a story to explain the black eye to his mother, however, I do not find that this evidence could be used as evidence of a guilty mind. In my view, if the events occurred in the manner described by the accused, a mutual fight, where he hit the complainant in the eye after she hit him, this is not something that he would want to admit to his mother. It casts both the complainant and the accused in a bad light.

[199] After being separated for one week, and after her parents had taken measures to secure her secret escape and safety for one week in Prince Edward County, the complainant returned to live with the accused.

[200] I reject the accused’s evidence that he did not know why the complainant left or did not ask why when she came back. These were outright lies. I find as a fact that he knew she left because of his striking her in the eye. However, I am not able to conclude that the fight that they had that day was not one that was precipitated by the complainant. She may have felt that his striking her eye and leaving a visible injury was not acceptable, even if she had struck him first. I find it plausible that events may have transpired as described by the accused, which after reflection and a day at the water park, lead the complainant to decide to leave with her son.

[201] After one week, the complainant decided that she was ready to resume living with the accused, and shortly after returning to Ottawa, they moved in together.

[202] I also am not able to dismiss the accused’s version of how the relationship ended. The complainant testified that despite the fact that the fighting had ended, and things were much improved, she simply decided that the accused would never change and that he would one day hit her again. She left him but continued to see him.

[203] The accused testified that he asked the complainant to leave after she threw his daughter’s mitten in the garbage and said, “ why can’t you put your mittens on the way D. does?”

[204] When asked about this incident the complainant said it did not sound like her.

[205] The complainant had no explanation for what precipitated the suddenness of her decision to leave. When she was asked what types of things she and the accused would fight about, one of the first things she mentioned was mittens. It is possible that this is how the relationship ended.

[206] The accused testified that he continued to see the complainant, that they would go for car rides together, and that they went to hotels to drink and do drugs for some time after the complainant moved out.

[207] The Crown also suggested that the fact that the complainant told him her father gave her $4,000 for leaving the accused was evidence that she ended the relationship. There are problems with this assertion. This suggestion was not put to S.S. This is something which the complainant told the accused. The complainant may have told her father that she ended things with the accused. This does not make it true. The complainant, despite apparently collecting $4,000 from her father for presumably ending the relationship, was continuing the relationship and hiding it from her unwitting parents.

[208] The accused denied ever assaulting the complainant. He admitted to striking her once in self defence on July 28. He indicated that on other occasions he physically had to restrain her. I am not able to conclude that the bruises that were visible on her body by her parents were as a result of the accused assaulting, as opposed to restraining the complainant. Both the accused and the complainant were using cocaine and alcohol and had a tumultuous relationship. The complainant was capable of losing her temper, even in public.

[209] He also denied having anal sex with the complainant on February 20, 2017 and maintained that the vaginal sex was consensual.

[210] He could not recall many details of what was said. The Crown suggested that he had no indication of consent. However, the complainant testified that she consented to the missionary vaginal sex which the accused described. He denied switching to doggy style or requesting anal sex. He denied that the complainant told him to stop. He denied asking for anal sex. He denied that the complainant said no, that it would be too messy.

[211] The accused had no idea how the bruise on the complainant’s leg occurred. However, the complainant also was not clear as to how she may have received the bruise.

[212] The accused said they stopped at Silver City where he was dropped off and went to his mother’s apartment. His daughter was being watched by his mother that evening. They had purchased wine earlier in the evening. The accused testified that he forgot his in the complainant’s car.

[213] In his police statement, the accused testified that he left the complainant after the wine store. This was a blatant lie. In fact, he and the complainant later had consensual sex that evening, which the complainant said was followed by non-consensual sex.

[214] The Crown suggested that the reason the accused lied about this is because he knew he had committed a sexual assault, that this was consciousness of guilt.

[215] He also denied in his police statement that the complainant drove him anywhere, asserting to the officer that this made no sense. This was also not true.

[216] The accused testified that he could not have had doggy style sex in the back of the complainant’s car as it was too small. I do not accept his evidence on this issue.

[217] The accused also testified that he and the complainant were cheery happy people when the sex ended. He testified that his mother would be angry if she knew he was with the complainant but denied that his mother knew of the violence between himself and the complainant. No explanation was provided for why his mother did not want him with the complainant.

[218] The accused had no phone, he said, so when he was dropped off by the complainant, he realized he had left his wine in the car. He then walked to her parent’s place, which was 20 minutes away to retrieve the wine.

[219] He said that the complainant gave him the wine from her car, and he kissed her goodbye and then he left. I do not accept that the accused walked to the home of the complainant to retrieve a wine bottle. It was February and freezing on the evidence before me. The accused knew that he would not be welcome at the home. It was very late in the evening.

[220] Whatever transpired in the car that evening, it obviously troubled the accused enough that he walked back to the home of the complainant. I find the story about the wine bottle was contrived as a method of explaining his presence at the home in the wee hours of the morning.

[221] I do not accept that the accused’s mother would eject him from the home on his birthday. His daughter was with his mother. The evidence that I heard in this trial suggested that the accused’s mother was accommodating to her son. She gave up her bedroom to allow the couple to live with her.

[222] I am unable to determine whether the accused deleted photographs of the eye injury from the complainant’s phone. They each had each other’s passwords.

[223] The accused maintained that he continued the relationship with the complainant after the incident on February 20. This evidence is relevant only because the complainant maintained that she did not see him. In other words, it is what the complainant said about not seeing the accused after February 20 that was relevant, not whether she did continue to see him. The accused suggested several instances where he continued to see the complainant. They were specific in nature. The complainant was not sure if he had been there for D.’s swimming lesson. The complainant did contact the accused after she had made a complaint to the police in order to secure his help with an insurance problem.

[224] An email from the accused to the complainant on February 23 said, “I love you, fuck you, you don’t’ want to see me anymore come on fuck off GDNT.ass.”

[225] Another email on Feb 26 sent by the accused talked about the complainant moving on and forgetting about him and his daughter. “Just like that change boats,” he wrote. “Fucking hate you.”

[226] The complainant sent an email telling him to leave her alone. But on February 27, she wrote, “actually yeah, can you call me something I need to…”

[227] In her evidence, the complainant said this reference related to insurance.

[228] The accused testified that the complainant saw him holding hands with P. shortly after the February 20 incident. If accepted, this may have provided the complainant with a motive to fabricate. However, I do not accept his evidence on this issue.

[229] The accused also swore that he was not the person on the phone on March 27. He testified that he did not place these calls and that he would never jeopardize his child by contacting the complainant.

[230] In cross-examination, it was clear to me that in his police statement the accused was trying to deny ever being at the home of the complainant’s parents. This was not true. The accused provided a convoluted explanation regarding not being on the main road, which made zero sense to me.

[231] This is a case where credibility determinations are central to the outcome. If I believe the evidence of the accused, I must acquit. If I do not believe the evidence of the accused, but it leaves me in a state of doubt, I must acquit. Finally, if I do not believe the evidence of the accused, and it does not leave me in a state of doubt, I can only convict the accused if, when considering the evidence as a whole, I do not have a reasonable doubt: R. v. W.(D.), [1991] 1 S.C.R. 742.

[232] I do not accept all of the evidence of the accused, but I accept some of it. I accept that he tried to leave the parents home after the fight with N.P., and that his friend came to pick him up. This was corroborated by the evidence of C.B., whose evidence I wholly accept. I accept that the complainant was capable of violence and aggression, for example. In many other instances, I find the accused lied and was clearly caught out lying several times by the Crown in his cross-examination, particularly relating to his police statement versus his evidence in this trial.

[233] The ultimate result in this case turned largely on my assessment of the credibility of the witnesses and the reliability of their evidence. The Crown’s case against Mr. M.L. stood or fell largely on the basis of the credibility of the complainant. Her credibility was seriously impeached however, in more than one instance. I find her description of the birthday party in her self-created statement to police to be in stark contrast to her evidence in this trial, for just one example. The complainant claimed to not remember going to Layfette Bar to purchase cocaine during the incident at her parent’s home when they were in Italy. I find she lied to the court about this incident, and I do not believe her when she said she could not recall if she went to purchase the cocaine. She also denied that the accused called a friend to come and pick him up. I do not accept that she was simply mistaken about this fact. It would, in my view, have been impossible for her not to realize that C.B. was at the home to pick up Mr. M.L.. The complainant’s version of that incident made it sound as though C.B. were at home with his girlfriend when they arrived. I find as a fact that he attended to pick up Mr. M.L..

[234] At the end of the day, when I consider all of the evidence as a whole, I find that I am unable to be satisfied beyond a reasonable doubt of the guilt of Mr. M.L. in relation to all of the charges against him except for the charge of breaching his recognizance.

[235] I accept some, but certainly not all, or even most of the evidence of Mr. M.L.. In R. v. Thomas, 2012 ONSC 6653, Code J.’s approach to the W.D. analysis at paras. 22-24 was this: a trier of fact has three possible conclusions in a case of this nature: complete acceptance of the accused’s exculpatory account; complete acceptance of the Crown’s inculpatory account; or, uncertainty about which account to believe. In this case, I do not completely accept Mr. M.L.’s account and I am not left in a state of reasonable doubt by it. I do not however, accept the account of the complainant, or the other Crown witnesses. A criminal trial is not a credibility contest between the crown witnesses and the defence. I must not choose which side I believe. I must consider the evidence as a whole to determine whether I am satisfied of the guilt of Mr. M.L. beyond a reasonable doubt. At the end of the day I am left in a state of uncertainty as to the guilt of Mr. M.L. in regard to all of the charges except for the breach of recognizance.

[236] In regard to the breach of recognizance charge, the context of that call, the response of the caller to the name “M.L.”, the fact that I accepted the complainant’s evidence that she recognized the caller as the accused, and that no one else would be speaking to her at that time in such a highly sexualized manner, convinces me that it was Mr. M.L. on the phone and that when he testified that he was not the one calling, he was lying to the court. He was on a recognizance not to have contact with the complainant at the time. I find him guilty of the breach count and acquitted of all of the other counts on the indictment.

A.E. London-Weinstein J.

Released: March 2, 2020