COURT FILE NO.: CR-19-50000633-0000 DATE: 20210225

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – D.J. Defendant

COUNSEL: Brad Demone, for the Crown Joseph Neuberger, for the Defendant

HEARD: January 18-22, 2021, at Toronto by Zoom Virtual appearance

Michael G. Quigley J.

REASONS FOR DECISION

[1] D.J. is charged with sexually assaulting B.B. D.J. denies that he sexually assaulted B.B. He has pleaded not guilty.

[2] The complainant and the accused both testified on this trial, as did one other witness, R.B., one of the complainant’s several sisters. Another of B.B.’s sisters, K.B., is the common-law spouse of D.J. R.B. lived across the hallway from her sister K.B. and D.J.

[3] The police synopsis of the offence and charge sets out the core of the allegation, but is deceptive in its simplicity. It states that:

The accused and his wife reside at [Apartment Number at a Municipal Street address], Toronto. The victim who is the sister in law of the accused rents a room in the same apartment. On July 17th, 2018 at approximately 02:00 am, the victim was asleep face down on her bed when she was suddenly woken up by something touching her private area. The victim thought that it was her dog and told it to go away. The touching then got harder at this point and the victim turned around and observed that the accused was standing naked beside her bed. The accused then jumped on top of the victim and started to push his penis into the victim’s vagina. The accused forcefully pinned the victim down to the bed with his hands pressing on her shoulders. The accused pulled the victim's pants down and continued to attempt intercourse despite the victim screaming no. The victim advised that she struggled with the accused for approximately 20 to 25 minutes. The victim was able to break free from the accused and managed to run from the bedroom to a safe location.

On August 19th, 2018 the victim attended 11 Division of the Toronto Police Service and provided a video statement to the Police.

[4] While this synopsis reflects the simple story of how the assault allegedly occurred, the evidence that emerged at this trial was considerably more complicated. As these reasons will show, there was other history between the parties stretching over some years that plainly played a significant role in the testimony of both the complainant and the accused. D.J. testified in his own defence. He totally denied the accusation made against him and testified the event simply never happened.

[5] Since both the complainant and the accused testified, the case must be determined based on the analytical methodology set out in the Supreme Court of Canada's decision in R. v. W. (D.) [1], and the numerous related cases that instruct trial judges how to approach the evidence in sexual assault cases like this.

Section 276 Application

[6] At the commencement of the trial, the defendant brought an application under s. 276 of the Criminal Code to admit certain prior sexual conduct evidence. The complexity and intertwining of their stories was one of the principal reasons I allowed that application to introduce evidence of specific prior sexual conduct that the defendant claimed occurred between himself and the complainant. There were also agreed areas of fact consented to as between the parties that explain a part of the historical context within which this offence is claimed to have arisen.

[7] Two important documentary items were admitted on consent under the defendant’s s. 278.92 application, an envelope from the Ontario government, and the letter setting out rental terms for B.B.’s occupancy of a bedroom at the defendant’s apartment. It is agreed those items are not “record(s)” within the meaning of s. 278.1 of the Criminal Code.

[8] On the application to determine the admissibility of other sexual activity pursuant to s. 276(2), the Crown conceded that the evidence meets the first stage of the test for admissibility, as set out in s. 278.93(2). The Crown also conceded that some of the evidence sought to be adduced, is admissible, namely three specific items: (i) that D.J. asked B.B. out on a date in or around 1985, and that the complainant “declined,” though the evidence suggested she may have accepted and then stood D.J. up; (ii) that B.B. was married for parts of the 35 year passage of time since 1985 during which she knew D.J., but that for a number of those years, she lived in a separate municipality some distance from D.J., about an hour-and-a-half’s drive away; and (iii) that D.J. became a common-law spouse to and had children with R.B.’s sister, K.B., and that the defendant and K.B. had been together for 32 years.

[9] However, the Crown argued that other prior sexual conduct evidence should be held to be inadmissible. That particular evidence is the defendant’s claim that he and his sister in law, B.B. had sexual intercourse at Wasaga Beach over the course of the Canada Day long weekend in July 2016, at a time when the applicant was still a common-law spouse to her sister, but when the sister, K.B., was not present on that weekend.

[10] I disagreed and ruled orally that the defendant could engage in very limited questioning of B.B. regarding that alleged sexual encounter, merely for the purpose of adducing evidence whether or not the complainant and the accused ever had a weekend sexual encounter at Wasaga Beach at that time, two years before the predicate sexual assault is alleged to have occurred on July 17, 2018.

[11] Permitting questions of a complainant’s prior sexual conduct is rare, and it is to be the exception rather than the rule. However, I found this to be an instance of specific sexual conduct (s. 276(2)(c)), that there would be no prejudice from me towards B.B. in the context of a judge alone trial (s. 276(2)(d)), and that the alleged event is specifically relevant to two issues at trial (s. 276(2)(b)), i.e. the statements and who made them and when, and the alleged pressure on D.J. from B.B. to sign papers to permit her to claim disability payments. These go to the defendant’s claim of fabrication, but neither of those has anything to do with the sexual nature of the conduct, and none is alleged.

[12] If this evidence were excluded, the defendant would be unable to actually put forward his story of what happened, and therefore be prevented from making full answer and defence, which in turn may assist to explain why B.B. conducted herself as she did after the alleged assault. That conduct is needed to make sense of his story of (i) her pressing him to provide her with the rental document that would permit her to improperly claim Ontario Disability Support Payments (ODSP), and (ii) to permit me as trier to evaluate the “you should have been the one” statements, who made them, and when. In summary, without at least the fact of the alleged Canada Day sexual conduct, there would be no ability for D.J. to advance his defence, because it would have no coherence without the alleged prior sexual conduct, the mere fact of the occurrence alone, to anchor it.

[13] The court makes the point in paragraph 21 of R. v. W.M., 2019 ONSC 6797, referring to paragraphs 65 and 66 of R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1:

21. Trial judges must be very cautious about admitting evidence of a prior sexual relationship for the purpose of providing “context:” Goldfinch, at paras. 65-66. Nonetheless, there will be cases where evidence of a pre-existing sexual relationship will be relevant. For example, in Goldfinch, the Supreme Court held that evidence of a sexual relationship may be relevant when the complainant has given “inconsistent statements regarding the very existence of a sexual relationship” or if it is truly fundamental to the coherence of the defence narrative. Evidence of an existing sexual relationship can also be admissible if the fact-finding process will be distorted without that information. [Emphasis added] [2]

[14] I found that the simple fact of the proposed sexual activity evidence was essential and necessary to be introduced here to permit the defendant to make full answer and defence, since it lies at the core of the defence narrative. Without this information I believe the fact-finding process would be seriously distorted.

Summary of Evidence

B.B.’s evidence

[15] B.B. was born in Newfoundland and grew up in Etobicoke. I believe she is now in her late 50s. She has two brothers and four sisters, and two dogs, a nine-year-old chihuahua named Sadie, and a four-year-old Yorkshire terrier named Darla. Both dogs were living with her at the defendant's apartment when these events allegedly took place in the summer of 2018.

[16] B.B. had been living with a roommate in an apartment sharing the rent of $800 per month, but they had a disagreement. The roommate left and B.B. could no longer afford to maintain it herself. She was looking for a government-sponsored accommodation, but that was problematic because of the two dogs, so she spoke to her sister K.B. She said that K.B. and the defendant offered a room. B.B. said they were both present in the apartment at the time it was discussed. She moved in and lived there in July 2018 paying $500 per month that they had asked for.

[17] B.B. did not see much of D.J. at all. He was away on the road a lot with his work, providing services related to setting up trade shows. K.B. worked the overnight shift. B.B. said she drove her sister K.B. to work most evenings for her 7 p.m. evening shift, but K.B. would come home on her own in the morning. B.B. was not working at the time she was living with K.B. and the defendant.

[18] The sexual assault is alleged to have occurred in the early morning hours of July 17, 2018. B.B. said that she took K.B. to work, walked her dogs, made some soup for dinner, took a shower and then went to bed. She said it was 11:30 p.m. or 12:00 a.m. when she retired for the night. Nothing untoward had happened until then. She said she had not communicated with D.J. Her dogs were in her room with her. They customarily slept on the bed with her.

[19] B.B. says she was in a sound sleep when she felt something poking at her “private.” She was lying on her stomach. Initially she thought it was one of her dogs. But when the poking did not stop, she turned her head and thought she saw D.J. standing beside the bed. Next she said he was on top of her. She said he was trying to put his penis into her. She said, “No don't! No don't!” He allegedly said, “You should have been the one! You should have been the one!” She claimed he kept saying that as she fought against him, but that she could not move. She said the assault lasted for 20 to 25 minutes, that he was on top with her lying on her stomach the whole time, and that she could not move because he must have been holding down her shoulders She fell off the side of the bed. He tried to grab her again. She elbowed him in the head and went out into the living room and he then went into his bedroom. And that was the end of it. There was no penetration and her pyjama bottoms stayed on, but were pulled down partly over her bottom.

[20] B.B. said that she told her sister R.B. the next morning in a phone call between 9:00 and 10:00 a.m. She was hysterical. She said R.B. came and got her. B.B. says that R.B. told her to call 911, but that she, B.B., did not because she was scared.

[21] Eventually, B.B. and R.B. did call the police together to report this incident, but that was not until just over a month later, on August 19, 2018.

[22] B.B. testified that the two dogs were not in the room with her while the assault was taking place. She said that the defendant had let the dogs out of the room before he started to assault her. The dogs had not barked or made any fuss or given any warning when D.J. allegedly entered her room and removed the two dogs so that he could assault her. She said he must have given them treats because they made not a sound at first, but then she said they were barking in the hallway while the assault took place. His actions removing the two dogs, putting them in the hallway, and then returning to her room and closing the door to assault her allegedly occurred in total silence. She did not awaken. Twenty minutes later, after she escaped, the dogs ran back into the room when she opened the door. She sat in the living room for half an hour smoking a cigarette, and then got dressed and went out of the apartment with her dogs.

[23] B.B. said she could not move out of the apartment after the assault, despite her fear, because the shelters would not take her with her dogs. She confirmed that the dogs were “yappy,” or at least the chihuahua Sadie was, and she also confirmed that both dogs could be “aggressive in protecting her.” As a result, she said she had no choice but to continue to live with her sister, K.B. and D.J. for another month.

[24] B.B. explained that she needed to tell K.B. what had happened, but could not bring herself to do it. She finally mustered courage and told her sister what had happened. She said K.B. was very angry and immediately went to another room to confront the defendant who she said was home at the time. B.B. testified that her sister K.B. later told her that D.J. acknowledged the assault to K.B., but B.B. said she was not present at that time.

[25] B.B had very little interaction with D.J. at any time after she moved in at the beginning of July 2018 until the assault is alleged to have taken place on the 16-17th. There were simply no interactions between the two of them. After the assault, again she said she had no interaction with the defendant and simply stayed in her room, apart from when she was trying to get him to give her a rental acknowledgement letter that she needed to give to her ODSP social worker.

[26] B.B. acknowledged that the defendant was very slight man, and only weighed about 125 pounds, but remained insistent that she was unable to move him while he was both holding her shoulders down, she said with his hands, and trying to remove her pants, also with his hands at the same time. B.B. also acknowledged that despite the attack and their physical fighting and her vigorous resistance having lasted a period that she said felt like 20 to 25 minutes, she did not sustain any physical injuries whatsoever, no scrapes, no bruises.

[27] In cross-examination, B.B. confirmed that K.B. was definitely home from work on the morning of the July 17, 2018, when B.B. called R.B. at 9 or 10 a.m. She admitted she knew K.B. was in the apartment but B.B. did not talk to her. Despite her evidence in chief that she was screaming and hysterical with R.B. on the phone, in cross-examination she varied her evidence to say, for the first time, that she was in her room and trying not to scream as she spoke to R.B. on the phone, because she did not want her sister, K.B., to hear her.

[28] B.B. said that she and her sister K.B. still had a good relationship for the days following these events. That was, at least, until the day that D.J. allegedly “came up with the story” that they had had an affair between them – that is between D.J. and B.B. – several years before. B.B. explained that when this story emerged, K.B. believed her husband. She believed that he had an affair with B.B.

[29] In any event, B.B. testified that her sister K.B. was very angry. She kept yelling that she wanted B.B. out of her house. Sometime later, their sister R.B., who conveniently lived across the hallway on the same floor of the apartment building, allowed B.B. to move in with her for a while, at least until all of this came out following the police report in August.

[30] The matter came to a head and was reported to the police on August 19. The story of how that report was made is important in the context of the evidence as a whole.

[31] B.B. said that while living with K.B. and the defendant, K.B. would not allow her to have guests in the apartment. However, B.B. was seeing a boyfriend, so they rented a motel room at a local motel so that they could "have some fun on weekends.” While she and this other man were staying there on the weekend of August 18, the tires on B.B.s vehicle were slashed on the Friday night by an unknown perpetrator.

[32] B.B. became frightened for her safety, believing it was the defendant’s daughter, Danielle, who had slashed the tires and that she was being threatened. Interestingly, the imprinted date of August 18, 2018 on the photographs places the time by which this damage had occurred, but B.B. did not report anything to the police until August 19.

[33] B.B. said that she was hysterical on that day. Sometime around late morning, she called her sister R.B. who was at her trailer at Wasaga Beach. She told R.B. to come and get her. She wanted R.B. to help her call the police. In her evidence, she said that day was very foggy, and she said that it was R.B. who had to initiate the 911 call, because she was incapable of speaking. The audio recording of that call does confirm that R.B. was the caller, calling for her sister, B.B, although B.B. then took the phone from R.B. and spoke to the police officer herself. I have listened carefully to the 911 call recording, and note as well that B.B.’s sister, R.B. gave her own testimony that is set out below about how events that day unfolded. It is evident that, while she was talking to the officer, R.B. was repeating exactly what B.B. told her to say.

[34] In addition to what actually transpired between B.B. and the defendant on July 17, 2018 and the days before and after, there are three other important subplot stories that are woven through the principal evidence. The first was the story of the initial meeting 35 years ago of the defendant and B.B., and the alleged affair in 2016. Secondly, there was the testimony about an event that occurred at a family gathering some years ago where B.B. made a revelation to her sister K.B.’s daughter Tracey. The third subplot which underlies the events of July and August of 2018 concerns B.B.'s need for a rent receipt to support her receipt of ODSP assistance.

[35] B.B. was asked about her history with D.J. going back to when they first met 35 years before, apparently in New Brunswick. She said that D.J. asked her out on a date three or four times, but that she was not ready and that he was not “her type”. However, she did confirm that she stood him up on one date when she did not show up, but claimed to have very little recollection relating to that.

[36] Eventually, the defendant took up a relationship with her sister K.B. three years later. The defendant and K.B. never married, but did live as common-law spouses for 32 years until their relationship ended recently owing to these events. During those three decades, as the agreed facts show, B.B. moved away and had her own life. She and the defendant only saw each other infrequently at family gatherings, for the following three decades.

[37] The defendant claimed that he and B.B. had an affair on the Canada Day weekend in 2016. When she was questioned about the Canada Day weekend, she said that the alleged affair with D.J. did not happen. She said they never had consensual sex once, much less twice over the weekend.

[38] B.B. did acknowledge in her evidence, however, that she had spent time at Wasaga Beach, staying in a trailer there, (although not trailers of family members because she could evidently be difficult as a guest), and that she was familiar with and remembered playing “ladderball” with others, including other family members. However, she did not think she was present on a Canada Day weekend that she could recall. That said, B.B. did acknowledge having been there on other weekends, or at least one other weekend, and that they had all played ladderball together. It was interesting that B.B. also specifically recalled that her sister K.B. was not there at Wasaga Beach on the weekend that she, B.B., was present, whenever that was.

[39] An earlier event that caused friction in the family related to K.B.'s daughter Tracey. Evidently, when D.J. and K.B. became involved with each other, K.B. was already pregnant by another man. D.J. and K.B. agreed that he would bring up the child in their relationship together as if it was his own. B.B. was the godmother, but she was insistent and told her sister K.B. that if Tracey ever asked her, she would feel bound to tell Tracey that D.J. was not her biological father. Ultimately, this happened at a family gathering. B.B. said it was when Tracy was 18 years old or so but I agree with D.J.’s evidence that she was much younger, 11 or 12, at the time, and that the revelation caused emotional pain in the family. What is undisputed, however, is that Tracy did not ask B.B. anything about whether D.J. was her biological father. Instead, B.B. appears from the evidence to have simply decided on her own, for no apparent reason, that it was important for her to tell Tracey that D.J. was not her biological father. Not surprisingly, D.J. was upset with her after that time, but B.B. thought that their relations improved with the passage of time, no doubt assisted by the fact that they saw very little of each other.

[40] It was suggested that her relationship with D.J. was not very good after that disclosure because she never apologized to him for making the disclosure. B.B. denied that D.J. was upset with her about that. Then, in seeming support for her position, out of the blue she volunteered that "he would pop into my apartment all the time,", i.e., that he was regularly visiting her when she lived with the other roommate before she moved into the apartment that D.J. shared with his common-law wife K.B. This was the first time this piece of evidence emerged.

[41] B.B. denied that D.J. had ever said that he did not want her living with them for very long, but she also acknowledged that he had concerns about what she might say to her sister K.B., while living in their apartment, and in his testimony D.J. mirrored this fear that B.B. would disclose the affair to K.B.

[42] Another subplot relates to B.B.'s need for a rent receipt because she was on ODSP. Evidently her social worker required her to produce a receipt substantiating the fact that she was paying rent. She said that she told K.B. that she needed a rent receipt, but her sister K.B. said it was the defendant's apartment so he would have to sign it. For his part, D.J. did not want to sign it. Ultimately that letter was signed and dated August 8, 2018 (Ex.2). B.B. said that he dictated to her what she should type and that it was his stipulation that the amount of $700 per month should be written in as the amount of rent, even though she was only paying $500 a month. Until that day, however, she said that D.J. would not provide her with the rent receipt and would not provide her with a reason he refused to provide the letter.

[43] Between July 17 and the 911 call made on August 20, 2018, B.B. said that the defendant was constantly hounding her to move out of the apartment. She said his demands started after the incident in July, but she did not know what particular day. When asked whether she and D.J. had engaged in a heated discussion about him providing the rental letter on July 16 in the evening, as D.J. stated in his evidence, B.B. said that she did not know if that was the day.

[44] B.B. told him she could not move out because of the two dogs. B.B. also denied the suggestion put to her that she and D.J. had had a heated argument about the rent letter on the night of July 16 and that he forcefully told her that he and his wife, K.B., wanted her out of the apartment, as D.J. stated in his evidence. B.B. denied that she got angry at D.J. because she said they never had the discussion. But B.B. did acknowledge that she did remember that they had disputes about her moving out and about the letter, and that she was getting anxious and increasingly unhappy because he would not provide it to her.

[45] I noted a brief but sharp change in her demeanour in responding to these questions. B.B. said she did not threaten to tell her sister K.B. about the affair. She said D.J. did not put boxes in her room to encourage her to move out and that there had been never any discussions about her moving out until much later. There was a sort of lilting cadence to her responses, that reminded me of a childish response, like “bet you can’t prove it?” though that was never said. It was the tenor of the response and its difference from other responses that stood out to me and made me question its truthfulness.

[46] When again challenged that later, on August 8, she had confronted D.J. to sign the rental letter or she would make his life worse, she denied it. B.B. denied that D.J. had given her an ultimatum in an August 19th phone call that he would throw her out of the apartment if she did not move out quickly. B.B. said the August 19 call related only to her tires being slashed.

[47] It was put to her that on August 19, he wanted her out of the apartment and so she decided to make up the allegation of sexual assault against him. She denied that suggestion and indicated that the assault had happened on July 17. She denied that she had made up the story or engaged in any fabrication.

[48] B.B. ended her testimony responding to questions about the timing of the 911 call, the report of that assault. When it was suggested to her that the only report of the sexual assault was made to police on August 19, 2018 the day after the tires were slashed, B.B. said she thought that they were different dates. She thought that she had called on one occasion relative to the sexual assault, and had called a subsequent time relative to the tires. However when she did call to tell the police about the sexual assault, she acknowledged that R.B. was with her and on the phone call talking to the police, but she did not know what date it was.

[49] Fortunately, the notes of P.C. Cawthorne from 1442 hrs., on August 19, 2018 indicate that it was on that day at that time that R.B. reported a sexual assault to police relative to her sister B.B. Ironically, however, as will emerge below, B.B. was also certain that it had been Detective Polok who told her early in August about D.J. allegedly fabricating the story of the two of them having had an affair, yet that was at a time when she had yet to speak to any police officer about the assault.

The defendant’s evidence

[50] D.J. commenced his testimony with a firm denial that he entered B.B.'s bedroom on July 17, 2018 and tried to sexually assault her. He testified the event never happened.

[51] D.J. is 61 years old, born in April 1959. He works in the tradeshow services business as a project manager and is frequently away from home for extended periods of time. He had been with his common-law wife, K. B. for 32 years until they split up over these matters. He and K.B. have two biological daughters and a third daughter Tracey. He is not Tracey’s biological father but he testified he has happily raised her as if she was.

[52] He first met B.B. in 1985 and indicated that he asked her for a date a few weeks later, but she skipped out on him and stood him up. He said he never asked her out again. After three years, he commenced his relationship with K.B. For most of the 32 years since then, he never saw her sister B.B. She had moved to Peterborough. He only saw her at family gatherings.

[53] D.J. said in his evidence on the voir dire that at the time of the affair with B.B. in 2016, he and K.B. were not getting along. Their work hours were conflicting. They were not getting along very well. She was working night shift, and he was away on the road much of the time, so they weren't seeing much of each other. In his trial evidence, he expanded that answer to include difficulties relating to financial matters and K.B.’s alleged physical infirmities.

[54] Crown counsel argued this was a significant inconsistency. It was not inconsistent, but rather just a more detailed answer. More importantly, D.J.’s moral compass may be questionable since he seemed to have no qualms about having cheated twice on the same weekend against K.B., although he said he felt remorse thereafter. In my view, looked at as a whole, I believe his real concern was the fear of having his conduct uncovered.

[55] D.J. explained that he had owned a trailer at Wasaga Beach for 29 years. It was located in a trailer park where other members of the family also had trailers. These included B.B.’s brother, her sister R.B. and her husband Jim, D.J., and another brother, D.B., all in the same trailer park.

[56] D.J. testified that on the Canada Day weekend in 2016, he and his two daughters had gone to their trailer at Wasaga Beach for the weekend. About 6 p.m. there was a knock on the door and it was his sister in law, B.B. His daughter answered the door and told him that B.B. was there. Evidently they were going to stay at Jim's trailer, but Jim would not allow B.B. to stay there. So they asked if they could stay in D.J.’s trailer. He was agreeable.

[57] They all played ladderball that evening with eight or nine teams. Once it got dark, they sat around the bonfire and then everyone went to bed, he said, except himself and B.B.

[58] After the others had left the firepit, D.J. said that B.B. said to him, “You were the one who got away,” and then she said, “We should have had that date.” D.J. said he responded, “We can have that date tonight.” She agreed, and he said they went into the trailer and had sex together. They had two sexual interactions that weekend, on the Friday night and again on Sunday.

[59] D.J. said that on the Monday morning of the holiday weekend everyone packed up to go home, but he said B.B. was grumpy and nagging again that morning, as he said, "her normal self." D.J. acknowledged that he had previously had un-cordial relations with B.B. going back some years before, but that on that Canada Day weekend, she had behaved differently and that that was what enticed his interest in her to have their affair. He also acknowledged it was because he and K.B. were not getting along and she was not there in any event.

[60] D.J. acknowledged that he was upset with B.B. from years before because B.B. had told his daughter, Tracey, when she was 11 or 12 years old, that he, D.J., was not her biological father. He was cross and could not understand why she would tell that to a young girl.. It was the first time that Tracey learned that news. D.J. was angry because he said that it was not her right to tell his daughter. After that he did not particularly like her and he said that she had a tendency of liking to try to hurt people. However, on the July 1 weekend she had been a different person. She had been acting differently and he had not seen her for a few years.

[61] I found D.J.’s evidence more believable than B.B.’s on this issue. First, if it had not taken place until Tracey was 18 or 19, life experience suggests she would already have known by then that D.J. was not her biological father. Parents do not tell their children such things until they are old enough to understand. But Tracey was hurt and did not understand when B.B. decided to tell her at a family gathering that D.J. was not her father, unprompted, and evidently for no reason. The defendant was hurt and bore some anger to her for some time, but said she was a different person on the weekend when he said the affair took place in 2016.

[62] After the weekend of their sexual affair, D.J. said he felt guilty and ashamed for having cheated on his wife. Not surprisingly, he acknowledged that he did not tell K.B. He also denied that he had ever “popped over” to B.B.’s apartment in Etobicoke, prior to her moving into the apartment that he shared with K.B.

[63] D.J. acknowledged that he was concerned about B.B. disclosing to K.B. that the two of them had had an affair. He said he came to realize that it would come out at some time, and that was the main reason he did not want to see her.

[64] Nevertheless, he remembered that B.B. had to leave her apartment that she shared with another woman after they had defaulted on their rent, and that B.B. then came to her sister, K.B., to ask if she could move in for a while until she could find a place to live. D.J. said that his wife, K.B., told B.B. that would be all right in June 2018. He testified that he was not present or involved in that decision and knew nothing about any agreement for the payment of rent between K.B. and B.B. He was concerned and did not want B.B. to move into their apartment because he was worried that the information about the previous affair would come out and seriously harm his relationship with K.B.

[65] When she moved in at the end of June 2018, B.B. brought the two dogs with her. D.J. said they were snappy dogs who barked a lot, at least the chihuahua. He said they were aggressive dogs. He said that he did not know that she was looking for another place to live but, as time passed, agreed that he and K.B wanted B.B. to leave. He said he brought boxes home for her to pack her things up to permit her to move out. He was trying to convey a message that B.B. was no longer welcome.

[66] D.J. was asked about the rent letter dated August 8, 2018. He testified that B.B. had been asking for the letter for some time. Apparently B.B. also had had a discussion with R.B. about it. He said that he had an argument with B.B. about the rent letter in the evening of July 16. When asked why he remembered that that was the date, he said simply because he knew that was the date.

[67] D.J. denied that he ever crept into B.B.’s room and tried to sexually assault her. He suggested that there was no way he could have done that, removed the dogs from her room and assaulted her, without the dogs making a ruckus and waking her up. However he admitted they had an angry discussion about the rental letter, but went their separate ways to bed. He said he got up the next morning and went to work. He denied that he ever tried to touch B.B. and was insistent that nothing had ever happened between them, apart from the affair in 2016.

[68] About a week later, D.J. said that he went up to the trailer, he thought perhaps on July 29. He went up on his own. While he was there, he got a call from K.B. She was very angry with him and told him that she had just found out that he had had an affair with her sister. She wanted him to come home. He went home on August 2 and they talked on that day. However, he denied ever telling anything to K.B. about any assault as claimed by B.B., or being confronted about an assault and admitting it to K.B.

[69] D.J. acknowledged that he admitted in his discussion with K.B that he had had the affair with B.B., after B.B. made the disclosure to K.B. But he said that that was not about a sexual assault on July 17 in the early hours, but rather about the affair on the Canada Day weekend two years earlier. After their discussion about the affair, he vividly recalled how K.B. became very angry with her sister B.B., angrier at her than she was at him, because her sister had had an affair with her husband. After that, K.B. was constantly yelling at B.B., swearing at her, and telling her she wanted her out of their apartment.

[70] When K.B. called him at the trailer to confront him, she told him that she had just found out from B.B. that he had had an affair with her. He waited until August 2 to go back and talk to K.B. because, as he said, there was no easy way to tell her about the affair, and he hoped that perhaps she would calm down over the next two days. However, he denied that he ever agreed or told K.B. that he had assaulted B.B. K.B. had not calmed down much, was very angry at him, and told him he would be sleeping from then on in the spare bedroom. Not surprisingly, the atmosphere in the apartment was tense, unhappy and not good. K.B. wanted B.B. to leave their apartment. During this time, he was trying to avoid B.B. but he wanted her to leave as well.

[71] D.J. admitted that he did ultimately sign the rental receipt letter. He told the court that B.B. came over and told him to sign it. He denied that he composed it, said he did not tell her to type it, and had nothing to do with its contents. He did not know why a figure of $700 rent would have been included in that receipt, but believed it might have something to do with the amount of B.B.’s ODSP payments. He testified that she told him that if he did not sign the letter she was going to go to the police and tell them that he had sexually assaulted her. She told him that she was going to have him charged for sexual assault.

[72] When asked why he signed the document, he admitted it was because B.B. was nagging him and he was worried that she would go to the police to make an accusation, even though he was insistent that he had never tried to have sex with her apart from the consensual affair he alleges took place.

[73] Matters came to a head on August 19. On August 18-19, B.B. was at the motel where she stayed with her boyfriend on weekends. D.J. had been planning to go to the trailer that day, at about 10 or 11 a.m. He said that he had a call with B.B. at 10:45 a.m. on August 19. He told B.B. that her sister K.B. wanted her to get out of their apartment, and that if she did not move out immediately he was going to throw her goods out of the apartment into the hallway. He said he was angry, loud, and fed up.

[74] As B.B. reported, her tires had evidently been slashed. She appears to have confronted him with that and made accusations, but D.J. denied having anything to do with those tires, or that he had asked anyone else to do it. He denied that his daughter Danielle had anything to do with causing damage to B.B.’s tires. He said he went to the trailer alone after that call because K.B was in Peterborough. The next thing that happened was that police knocked on his trailer door on August 21. They had a warrant for his arrest, so he turned himself in.

[75] After August 19, B.B. started living with R.B. across the hallway in apartment 412, one door away from his apartment. D.J. had to go and live with his brother. He was not allowed to go home. He concluded his examination in chief with the emotional acknowledgement that these events ultimately caused his wife, K.B., to leave him.

[76] D.J. agreed in cross-examination that he did not disclose to his wife between 2016 and 2018 that he had had an affair with B.B., acknowledged he was still concealing the affair from his wife up to and including the summer of 2018. He acknowledged that this was being untruthful and deceptive to K.B. in not disclosing the affair to her, but suggested it was no different from any other male who had cheated on his wife being dishonest and not voluntarily disclosing it, knowing the damage such a disclosure would cause. He was very worried that B.B. would tell K.B. about their affair and he acknowledged that he asked B.B. not to tell his wife, but said he knew she could not be trusted.

[77] D.J. said that B.B. had a predilection for causing trouble. He told the Crown that B.B. and K.B. never got along, and that B.B. was always stirring up “dirt” about other people. He said he was very surprised that K.B. had permitted her to move into their apartment, but he stayed out of the rental business because they were sisters. He said that B.B. was not paying any rent to him, and that his wife had told him not to sign the rental letter. He also acknowledged that he did not ask K.B. if her sister was paying rent. He simply chose to stay out of the matter.

[78] The altercation he said he had with B.B. on the evening of July 16 and early morning of July 17 was not the first time he said that B.B. had pressed him about the rental receipt letter, but he said that K.B. had told him not to sign it. In the July 17 fight, he said that he was frustrated and ticked off with B.B. He said that he grabbed empty boxes and banged on her door. The dogs were barking. She was yelling at him and he was yelling back that he wanted her out of their apartment.

[79] When asked, D.J. admitted that when she moved into their apartment the affair they had had was on his mind, but said he did not find her attractive and, in an odd response, said that he and his wife were back on track in their marriage, so why would he find her attractive?

[80] D.J. denied that the disclosure made by B.B. to K.B. at the end of July was about sexual assault. B.B. was angry with him because he would not sign the letter, but K.B. did not want him to sign the letter because B.B. would not move out of their apartment. D.J. said that B.B. told him that if he did not sign the letter she was going to go to the police.

[81] D.J. became confused, however, when it was put to him that during the voir dire he had testified that he only reason he signed the receipt was because he thought it would force her to move out. He did not remember saying that. He was unable to be certain what his reasons were, and these answers were contradictory. D.J. was also confused and had difficulty in his evidence keeping the relevant dates and what had happened on those dates straight, and consistent with some of his earlier evidence. On several questions, he would not accept what the Crown put to him as his earlier evidence.

[82] Counsel asked D.J. whether he felt badly because of cheating on his wife by having an affair with B.B. on the Canada Day weekend in Wasaga Beach? He confessed he felt badly on the Sunday that he had cheated on his wife on the Friday night, and felt worse that he then did the same thing again, cheating on his wife a second time. He confessed that he felt a lot of guilt, but did agree that it had not stopped him from cheating on his wife the second time on the Sunday of the Canada Day long weekend.

[83] D.J. concluded his testimony with a final firm denial that he sexually assaulted B.B., insisted that he and B.B. had had an affair that weekend in 2016, and that it was B.B. who told K.B. about the affair which led to K.B. confronting him. He denied that he had told his wife about the affair himself. In a final question, D.J. acknowledged that B.B. still lives just one door down the hall on the other side of the hallway from where his apartment is, as she continues to live with R.B. in apartment 412.

R.B.’s evidence

[84] R.B. is B.B.'s sister. She suffers from severe anxiety issues. Her anxiety was plainly visible throughout her testimony. R.B. confirmed that she knows the defendant, D.J., because he has been cohabiting with her sister K.B. for 32 years. It was initially expected that R.B. would testify as a witness for the Crown. However, at the lunch break on the day that she was to give her evidence, she told the Crown and the officer in charge that she now disagreed with certain things that she had previously stated. As a result, the Crown did not call her to give evidence, but the defence did.

[85] At the beginning of her evidence, R.B. was asked if she knew anything about an affair between her sister, B.B., and the defendant. She said she had learned about that affair. She testified that she learned about it from her sister B.B. on the day after B.B.'s tires were slashed, that is, August 19, 2018.

[86] R.B. was at her trailer at Wasaga Beach that weekend. B.B. called her about noon on that day. B.B. was crying and told R.B. that someone had slashed the tires of her car while she was staying at the motel with her boyfriend. She had taken photographs of the slashed tires. The photos are date stamped for August 18, 2018. B.B. wanted R.B. to come home to Toronto and to call the police on her behalf, because she said she was too upset to make the call herself.

[87] R.B. packed up and went directly back to the city. She got together with B.B. R.B. testified that B.B. said she had “something to tell her.” B.B. told R.B. that something had happened a few years before, up north at the trailer park. R.B. recalled B.B. attending at the trailer park only once in 28 years, but said that she did have a key to one of the family trailers. R.B. testified that B.B. also told her at that time, August 19, 2018, that something had also happened the previous month, on July 17.

[88] In reference to the July 17 occurrence, R.B. explained that B.B. had told her that she had been “up all night at K.B.’s with Dan, bickering about getting the rent receipt she said she needed to keep receiving her disability.” She was anxious for D.J. to sign certain rental receipt papers that she needed in connection with her disability payments, but he would not sign those papers. It was then that B.B. told R.B. that after she and D.J. had had their altercation, he tried to have forced sex with her.

[89] R.B. testified that the first time she learned of that allegation from B.B. was on August 19, 2018. She also went on to report, as noted above, that “something” had happened up north – nothing bad, she said – but B.B. told her that B.B. and D.J. had sex twice on a weekend in July 2016 when she visited, a weekend when R.B. was also at her trailer. R.B. explained that B.B. was not allowed to stay in her trailer, because she was a “troublemaker and a storyteller,” and R.B.’s husband did not want B.B. to be around.

[90] After they had the discussion about the events of July 17, and the earlier events at Wasaga Beach in 2016, B.B. told R.B. that she wanted her to call 911 to report the assault, so R.B. made the call. When the police answered the phone, it was R.B. who was describing the complaint of sexual assault on behalf of her sister B.B. but, according to R.B., it was B.B. who was telling her what to tell the police, what she was to say to the police over the telephone.

[91] R.B. explained in her evidence that B.B. was regularly and repeatedly concerned and talking about her need for a rental receipt in connection with her disability payments. R.B. told the court that during July and August 2018, given that she lived just across the hall, B.B. would call her and come to her house to visit most evenings while she lived with K.B. and D.J. R.B. said she was always upset because D.J. would not give her the receipt she wanted.

[92] R.B. also gave evidence about B.B.’s dogs. She said they were not nice dogs, “terrible” she called them: dogs who were totally protective of B.B. and at least one of which is claimed to have barked constantly. After these matters were reported to the police during the period of time when B.B. lived with her until October 2018, R.B. said the dogs were quite aggressive so she generally insisted that the dogs be caged. R.B. testified that B.B. moved out of her apartment in October 2018. She could not allow her to stay any longer because R.B.'s husband wanted B.B. to leave.

[93] In cross-examination, R.B. with pressed vigorously by Crown counsel, particularly given that she had ended up giving evidence for the defence, but she was adamant that she had called 911 on behalf of B.B. on August 19, 2018 and, more importantly, that she was repeating to the police officer exactly what B.B. was telling her to say about what had happened on July 17. R.B. was insistent that B.B. had never previously reported that accusation to her before August 19.

[94] Instead it was her evidence that the call that she had had with B.B. after July 17 did not relate to an assault, but instead related to the altercation that B.B. had had with D.J. relating to the rental receipt required for disability payment purposes. When asked, R.B. said she knew nothing about an alleged sexual assault against B.B. until August 19. She testified that that was the first time that B.B. told her about the assault

[95] It was interesting to me that, in her evidence, R.B. described being very upset about only learning of the July 17 allegation in late August. If B.B. believed that she was assaulted on July 17, R.B. questioned why had she not called to tell R.B. beforehand? On her evidence, the only thing that B.B. had told her about relating to July 17, at least until August 19, was the dispute with D.J. relating to the rental receipt. What upset R.B., she said, was that if she had known about an alleged sexual assault against B.B. at the time that it allegedly happened in July, she would have immediately insisted that B.B. move out of K.B.'s and D.J. apartment, and move in with her.

[96] R.B. said that she had spent many sleepless nights after August 19, wondering why B.B. had not told her about the July 17 incident beforehand when she was available and right across the hall to help. She was very anxious, could not understand and kept asking herself why B.B. had waited to tell her about the assault and had never said anything about it until August 19.

[97] R.B. remembered that the phone call to the police on August 20 was with Detective Polak. Crown counsel challenged R.B. about her story, but she was insistent she was telling the truth and that on the phone call on August 19 had simply been repeating to Detective Polak what her sister B.B., sitting in the background but whose voice can be heard, told her to say. That carried on during the early parts of the call until it appeared that R.B. was having difficulty understanding what B.B. was saying to her.

[98] Indeed, there is one point during that recorded call where R.B. can be heard turning to B.B. and asking "What did you say he did again?" That was seconds before B.B. took the phone herself, and continued on herself with the complaint to the officer. While R.B. did admit that B.B. had spoken to her on July 17, she remained insistent that was about the fact that B.B. was very upset because D.J. would not provide her with the rental receipt she required for disability payment purposes

[99] Again when pressed about the two phone calls, R.B. was certain that the first phone call had taken place on August 19, 2018, the 911 call during which she had reported the sexual assault on behalf of her sister, B.B.. The recording of that 911 call was entered at trial is as good as Exhibit 5. The Crown also introduced the August 20, 2018 transcript of R.B.’s call with Detective Polak as Exhibit 4. R.B. herself gave a police statement on August 20.

Analysis

Applicable Principles

[100] Where the accused testifies in his defence, as here, the Supreme Court of Canada's instruction in R. v. W. (D.) requires that if I believe D.J.’s evidence that the offence never happened, or it at least leaves me in a state of reasonable doubt, then I must acquit him. However, even if I do not accept his evidence and it does not leave me in a state of reasonable doubt, D.J. may be convicted only if I am satisfied on the rest of the evidence that I do accept, including other defence evidence, that Crown counsel has proven the elements of the offence beyond a reasonable doubt.

[101] Put differently, looking from the reverse perspective, if I am not sure that the offence occurred as the complainant described it on the basis of the evidence that I do accept, looked at within the context of the entirety of the evidence, then an acquittal must be entered. The reason is simple.

[102] Regardless of whether I accept or reject the evidence of the defendant, he cannot be convicted unless the remainder of the evidence that I do accept and believe, considered in the context of the entirety of the evidence and the absence of evidence, causes me to be sure that the offence occurred as the complainant described it. A conviction can only be entered where the trier is satisfied that the elements of the offence are made out beyond a reasonable doubt. The case law shows that I must consider the entirety of the evidence in reaching that determination.

[103] The Court of Appeal emphasized the point in R. v. Hull:

W.(D.) and other authorities … do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment. [3]

[104] Sexual assault cases frequently involve two competing “versions” of events. This case does not involve competing versions of a sexual event in that usual sense, but rather a claim by the complainant that she was sexually assaulted by the accused, and his testimonial rebuttal that the alleged event on July 17, 2018 never occurred. That said, apart from the evidence relating to the alleged assault itself, there were quite different stories told by the witnesses about the events that form the background and context for the assault that is claimed to have occurred.

[105] The key point is that whether the elements of the offence are proven to the criminal standard must take account of the entirety of the evidence. Nevertheless, as Doherty J.A. instructs in R. v. (D.) J.J.R.:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence [emphasis added]. [4]

[106] Those words require a contextual consideration of the evidence as a whole. The accused’s evidence is not viewed in isolation. Context is particularly important in a case like this, as it provides the background against which, and within which, I must evaluate the credibility and reliability of the evidence of the witnesses, and make findings of fact. Nevertheless, the corollary to the words quoted above must equally apply.

[107] Also relevant here are the principles to be followed in the assessment of a complainant’s evidence in a sexual assault case. I have reminded myself that there is no “expected behavior,” such as avoidance of the accused, that the court should look to or rely upon and compare to the behaviour of the complainant.

[108] The point is made in R. v. A.J.R.D. [5] The Alberta Court of Appeal allowed a Crown appeal from an acquittal in an intra-family sexual assault case where the trial judge acquitted on the basis that:

[A]s a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator.

[109] The Crown’s appeal was allowed when the Alberta Court of Appeal held that the trial judge erred by relying on impermissible stereotypes or myths about the behaviour of sexual assault victims in assessing the complainant's credibility and ultimately acquitting the accused. Specifically the court rejected reasoning that a victim of sexual abuse would necessarily demonstrate particular changed behaviour following a sexual assault such as avoiding the perpetrator. In many cases, that is simply not possible, but neither is it probative of the credibility of the complainant.

[110] Neither should complainants in sexual assault cases be tainted by the suggestion of a higher tendency to fabricate, another example of stereotypical thinking that has no place in sexual assault trials. Neither the law, nor judicial experience, nor social science research supports a generalization that complainants in sexual assault cases “have a higher tendency than other complainants to fabricate stories based on ‘ulterior motives’ and are therefore less worthy of belief.” [6]

[111] That said, I also accept defence counsel’s observation that there is a difference between arguing that a complainant would have or should have behaved in a certain way based on a comparison to an imaginary “real” victim, as opposed to talking about the plausibility of how this particular person behaved in the actual circumstances described. Assessing the coherency of a narrative based on testimony provided by the complainant herself and other evidence regarding the actual sequence of events or circumstances is a proper consideration when evaluating testimony. Stereotypes become a concern only when conclusions are not grounded in the evidence. [7]

[112] In this case, in reaching the decision I have, I have taken account of these instructions provided by appellate courts. However, none of these admonitions undermine the core principles relating to the determination of whether the case is made out to the criminal standard, and the manner in which a trier must go about assessing the evidence. I have reminded myself of the presumption of innocence, the burden of proof that rests exclusively on the Crown, and that proof beyond a reasonable doubt lies closer to a certainty than it does to a mere balance of probabilities. It requires that I be sure in my decision. I have also remembered that I may accept, some, all, or none of a witness’s evidence, a principle that affects my consideration of each of the witnesses in this case.

Analysis

[113] Crown and defence counsel both provided me with very helpful written briefs of closing submissions with case law authorities to support their respective submissions. The complexity of the evidence and how it interweaves in this case is plain from my recounting of the evidence above, but it also underscores and accounts for the fact that, between the two of them, I received almost 40 pages of written submissions.

[114] That complexity could have required even more extensive reasons than these to address each and every one of the conflicts, inconsistencies and bizarre elements in the body of evidence of each of the three witnesses on their own, much less to resolve the conflicts and inconsistencies in their evidence inter se. However, the decision in R. v. R.E.M. [8] shows that I am not required to address and resolve each and every one of the apparent evidential problems or conflicts.

[115] R.E.M. was a sexual assault case originating in British Columbia, where the accused was convicted at trial, but overturned on appeal for, among other things, alleged insufficient consideration of the defendant's evidence in the judge's reasons. The Supreme Court restored the trial decision, noting:

Nor did the trial judge’s failure to mention some of the accused’s evidence render the reasons for judgment deficient. The foregoing discussion of the law establishes that a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial. It is clear from the reasons that the trial judge considered the accused’s evidence carefully, and indeed accepted it on some points. In these circumstances, failure to mention some aspects of his evidence does not constitute error. [9] [Emphasis added]

[116] I have grappled with these facts constantly for the month that has passed since the end of the trial. The fact that I have grappled as I have with the evidence and what is said to have happened between B.B. and D.J., with the added varnish of R.B.’s evidence, may provide some insight to how my consideration of the evidence in its bits and as a whole, has been difficult and troubling, but has ultimately left me unsure that this assault took place as it was described.

[117] There was really only one live issue in this trial, and that was whether I am satisfied beyond a reasonable doubt on the whole of the evidence that the defendant sexually assaulted B.B. as she claims. There were also a number of subsidiary issues that affected my consideration of that main question. There are also the questions of the credibility and reliability of the evidence of the three witnesses.

[118] In my assessment, apart from credibility, the discrepancies in the evidence as a whole of the three witnesses showed issues of reliability in connection to the dates of various events, and the content of their answers. There were some internal inconsistencies in the evidence of all three, some more significant than others. There were a number of aspects of the evidence that seemed bizarre.

[119] Yet, at the same time, the testimony of each of the witnesses did have some elements that were either consistent with or that mirrored testimony given by the others. For example, both B.B. and the defendant agree that they knew each other for over 35 years. They agreed there had been some issues of dating. He said he asked her out and she stood him up. She said there were three or four offers of dates. He said only one. She admitted to having stood him up one time. He testified that she has stood him up once.

[120] Looking first at the evidence of the complainant relative to the alleged affair in the summer of 2016, the evidence of B.B. and the defendant, and also R.B. display elements of considerable consistency. The defendant gave his evidence about how the affair came to happen on the Canada Day weekend in 2016. It was one of very few occasions when B.B. came to the trailer park where family members had trailers. For her part, she testified that she knew about and acknowledged playing ladderball on whatever weekend it was that she attended Wasaga Beach, but could not remember the date. She confirmed R.B.’s later evidence that she could not stay at her sister’s trailer. R.B. confirmed that was so, because her husband, Jim, did not want B.B. around.

[121] B.B. acknowledged much of the situational fact and peripheral detail surrounding the 2016 Canada Day weekend as described in D.J.’s evidence. It plainly demonstrated she had been to the trailer park that summer at least twice, regardless of on which weekends. Moreover, B.B. and the defendant both confirmed that K.B., the defendant’s spouse, was not present on the weekends when each of them says they were in Wasaga Beach, even if they do not agree on what those dates were.

[122] When B.B. was asked if this could have been the Canada Day long weekend, she did not know but did not think it was a long weekend. However, she could not deny that it was the weekend in question when she went to Wasaga Beach. I note that while B.B. was asked in chief by the Crown about whether she was ever up at Wasaga Beach, she was not asked to give an account of what actually happened on that weekend she admitted to, other than everyone was playing ladderball, so while she denies the affair described in D.J. evidence, the only account of what events transpired comes from the defendant and parts of his account are corroborated by R.B. and the complainant herself.

[123] The rental receipt document was also clearly a source of dispute between B.B. and the accused. Both B.B. and D.J. accepted that she needed to receive it and that he refused to sign it. Both acknowledged that they had had altercations on that subject. The defendant says that one of those was on July 16, an altercation with B.B. about rent, and K.B. and the defendant wanting her to move out.

[124] In contrast, B.B. says there was no altercation that night, that she quietly went to bed and that the defendant assaulted her at 1:30 or 2:00 am. In her testimony, however, R.B. insisted that the call she had with B.B. the next day, at about 9:00 to 10:00 a.m. was not about D.J. having assaulted B.B., as B.B had said it was, but rather about his refusal to give B.B. the rental document and about his efforts to get her to leave.

[125] R.B. testified that B.B. was visiting her across the hallway most evenings during the summer 2018 period. She also testified that through most of the evenings during late July and the first half of August while B.B. was renting the apartment from K.B. and the defendant, the subject of the rent letter came up over and over. R.B. said it was raised often and angrily, by B.B, throughout that period.

[126] The Crown argued that B.B. gave the impression of a straightforward person who gave simple details in response to questions, and did not present an overly complicated account or one that might be considered calculating. He claimed that while emotional, she testified in a credible manner and gave a plausible and coherent account of the events in question. In the context of the entirety of the evidence, he also rejected that she was a vindictive person who would go to extremes to obtain a rental receipt. He insisted that she did not appear to possess the qualities that the defence ascribed to her. Regrettably, I find myself unable to be as generous in my assessment of B.B., or at least her evidence.

[127] Defence counsel contended that B.B. gave numerous incoherent and evasive answers when faced with problems in her evidence in cross-examination. He claimed she resorted to fabrications, such as claiming that D.C. Polok was the first person to tell her about D.J.’ “story,” the allegation that she had an affair with D.J. in 2016. The defence asserted that B.B.’s evidence about these events, and the timeframes she described, proved her testimony to be demonstrably untrue. He argued that her own evidence on this point showed that she knew it to be untrue at the very time when she said it during her testimony. Regrettably, as described below, the record also supports this contention.

[128] It was also telling to me that when cross-examined about the affair, B.B. stated for the first time that the defendant had regularly and randomly popped over to her apartment between the time of the affair and June of 2018, the time when she moved into the apartment shared by her sister K.B., and her common-law spouse, D.J. This would clearly have been an important fact for the police to know as conduct leading up to and preceding the alleged assault, but there is not a mention of it in her police statement.

[129] In contrast, in earlier statements, B.B. previously said she had seen virtually nothing of the defendant over the years except at family gatherings. She lived in a separate city, a couple hours drive away from Toronto. B.B. maintained this assertion of absence of contact in cross-examination, until she was pressed about the alleged affair, during the summer of 2016. Only then did this piece of evidence about him “popping in” regularly arise for the first time.

[130] Then there was the evidence of B.B.’s sister, R.B. Crown counsel asked me to disregard it in its entirety. He said it should be approached with extreme caution and rejected as unreliable. He argued her evidence in cross-examination was highly evasive and resistant, that she was aligning herself towards the defence, and that she had been impeached based on a “clearly contrary account” that she gave to police in 2018 that lacked much of the detail that she offered in her testimony some two-and-a-half years later.

[131] I reject this allegation, and will instead, as defence counsel did in his submissions, explain why R.B.’s evidence at this trial was truthful, despite its facial problems. I found that despite the obvious and plain disagreement of dates, R.B. provided comprehensible and understandable corrections to the earlier evidence, once looked at in its entirety. Frankly, she was a woman with significant anxiety and communication difficulties who had been pressured to serve as her sister B.B.’s mouthpiece in the initial 911 call to police. I have no doubt that the first time R.B. learned of the alleged assault by the defendant was not on July 17, as the Crown contends, but rather on August 19.

[132] Crown counsel asserted that R.B. had animus towards B.B. He says R.B. is presently upset with B.B. for not coming to see her husband while he was seriously ill in the hospital for 20 days. The Crown says R.B. feels wronged by this and that, as a result, it is reasonable to think “that these sentiments impacted [R.B.’s] present view of the matter and that she is no longer supportive of [B.B.]”

[133] However, it was never put to R.B. that she was so upset with B.B. that it would cause her to entirely change her testimony. Neither was there any evidence of collusion between R.B. and the defendant, as was seemingly hinted at by Crown counsel in a somewhat oblique way. The absence of evidence and failure to challenge those two witnesses must remove any claim of fabrication or collusion by R.B.

[134] I reject that R.B. was so out on the fringe of retributive anger that she would have fabricated her testimony due to a feeling of alleged wrong caused to her by B.B. In my view, if anything, R.B. showed in her evidence that she was very concerned for B.B. This is evident from her testimony about how upset she was as she thought back to how she would have supported B.B. more, and had her immediately come to move in with her, had she known about the alleged July 17 sexual assault at or about the time it is alleged to have happened. R.B. was very upset that she had not done more to help her sister, and it was plain to me that her statements about the alleged assault and when she first learned of it, were genuine, heartfelt, and a source of anguish for R.B.

[135] I acknowledge the significant facial conflict in her evidence relative to her police statement. I will address this claimed contradiction in the concluding paragraphs of these reasons. I could also see the discomfort and overwhelming anxiety that she displayed throughout her testimony. It was evident to me that her anxiety depressive disorder certainly affected the manner in which she delivered her evidence. However, I reject the suggestion that R.B. was either generally incredible or unreliable in her testimony.

[136] Finally, I turn to focus on D.J.’s evidence. Crown counsel argued that D.J’s evidence regarding an affair between himself and B.B. is not plausible, but I do not accept that argument for the reasons set out above. I consider it more likely than not that the affair did take place, as D.J. described it. I did not believe he was capable of making up a story of that sophistication only two days after the alleged assault, as claimed by B.B.

[137] Nevertheless, apart from the evidence relating to the Wasaga Beach affair, I approached the defendant’s evidence with caution, and was uncomfortable with a number of its aspects. There was a patina of dislike towards the complainant that was evident throughout much of his evidence. He described her as a nasty person. Always causing drama. Had done some malicious things in the past. He said she constantly hounded him and threatened him.

[138] Crown counsel argued that the critical manner in which the accused described B.B. should be approached with skepticism. I agree. It reflected poorly on him. However, the evidence of B.B.’s behaviour in disclosing to Tracey that the defendant was not her father displays unfeeling and hurtful conduct by the complainant that perhaps permits one to understand D.J. seeming dislike, unwillingness to trust B.B., and balances the scales to some extent. B.B., self-righteously and almost proudly, answered, “Why should I?” when asked whether she had ever apologized to D.J. for that revelation and the hurt it had caused.

[139] On the other hand, I found some of the defendant’s conduct relative to the rental to B.B and the rental receipt letter to be troubling. Many parts of this account of how it came to be that B.B. moved in and how D.J. behaved in the circumstances do not, at first blush, seem plausible or coherent. Despite the fact that he and K.B. appeared to share some disdain for B.B., he said he received no warning from K.B. that B.B. had been invited to rent a room from them. That did not make sense to me. It makes more sense that they would have talked about it.

[140] Despite how the defendant felt about B.B. and the negativity that he said she brought with her, and despite the secret burden of the 2016 affair, he did not say anything to his wife about B.B. moving in. Instead, he said, this was his wife’s sister, “So what could [he] say?”

[141] Crown counsel argued that the accused’s passive approach respecting the rental stands in contrast to his behavior during the alleged rental document fight on July 17. Despite not seeing B.B. during the first weeks due to work, he testified that they had an altercation about the rental receipt on July 17 and he told her to get out. Despite following along without saying anything about the situation and taking direction from his wife, he did not consult his wife and took it upon himself to tell her to get out.

[142] Yet there is another side and explanation to these difficulties as well. When he was confused about Crown counsel asking why he didn’t tell his wife about his problem with B.B. moving in with them, as my notes show, D.J. responded by stating something to the effect of “Oh sure, I will just tell my wife about the affair etc. It don’t make sense!” I agree with defence counsel that this was an authentic and reliable response that seemed truthful when looked at from the defendant’s perspective. Although I have no personal experience, I cannot imagine a married man who had been unfaithful to his spouse wanting the news to come out. This, in my view, coloured most of D.J.’s conduct and his answers to questions. It caused him to not disturb the boat when K.B. was around, because he could not afford to have the affair disclosed, but he would not have felt constrained that way when K.B. was at work.

[143] In cross-examination, it was repeatedly put to D.J. that he should have asked reasonable questions of his wife, such as “Is [B.B.] paying you rent?” Perhaps he should have, but from D.J.’s perspective, he made it clear that he did not want to be involved in any part of that discussion because of the risks of disclosure of the affair that would arise if he “poked the bear,” as defence counsel colourfully phrased it. He kept repeating “It’s [K.B.’s] sister!” What he was really saying, sotto voce, was that he was not going to tangle with that potential hornet’s nest.

[144] The fact that the apartment was leased to D.J. is irrelevant. All witnesses testified that K.B. also refused to sign a rent letter. We do not know, but can only surmise from the evidence of the others that K.B. herself was not entirely happy to have B.B. renting a room in her apartment. In cross-examination, D.J. was also asked “isn’t it fair” or proper that B.B. should receive a rent receipt since she paid rent? It was not clear to me how his opinion was relevant, but he insisted he had no knowledge of any rent being paid, so how could he say whether it was fair or not? Yet I accept the Crown’s position that he was uncomfortable and argumentative in response to this line of questioning.

[145] In assessing the credibility and reliability of D.J.’s evidence, it is important to note that D.J. was challenged in cross-examination on the truth about the affair, and was unshaken, but he does not appear to have been challenged on his denial of the sexual assault.

[146] I accept that D.J. was honest with at least parts of his testimony. He admitted having an affair with B.B. in 2016, but that is not a legal matter. Not surprisingly to me, he admitted that he withheld that information from his wife. I accept the defence position that he did not understand the questions about whether or not he “conspired” with B.B. to “deceive” his wife because he did not understand the words conspire and deceive. He simply admitted he did not tell his wife.

[147] I had difficulty understanding the point of this inquiry, when there was no evidence that could found an allegation of conspiracy. But I also found an inherent conflict in the theory that the Crown appeared to be pursuing. B.B. testified that D.J. never deceived anyone. She testified that he actually confessed to a full-blown sexual assault the moment he was asked about it by his wife, but I agree with the defence that was impermissible, unprovable hearsay in the absence of calling K.B. as a witness. Despite that, Crown counsel suggested that D.J. should not be believed on his own evidence because he admitted he did not confess anything and therefore he should be seen as deceptive. I am unable to accept this line of argument or that the one proves the other.

[148] D.J. gave convincing evidence about how he and B.B. came to engage in sexual activity on the Canada Day long weekend in 2016. Importantly, his evidence was not contradicted by the complainant in terms of her having actually attended the Wasaga Beach trailer camp. She acknowledged she was there in that place, if not that weekend, then certainly another. Apart from a denial and a reference to playing ladderball, I do not have her evidence of what actually transpired on the weekend or weekends she acknowledges having been at Wasaga Beach to consider contextually relative to D.J.’s testimony that was put into evidence.

[149] D.J. did not want B.B. to live in his home but he had no control over that event because it was between sisters. If he had raised an alarm or concern, from his perspective it would have created more problems. This evidence was not contradicted. Having moved into their home, he had little interaction with B.B. leading up to July 17, 2018 and the complainant agrees with that testimony. They also both agree that they only talked about B.B. wanting a rent letter that K.B. refused to provide to her.

[150] Having reviewed and commented on all of this evidence, it remains to determine in that context whether I believe the defendant that the event never happened, and even if I do not believe him, am satisfied beyond a reasonable doubt that the sexual assault did occur. I must look not only at the credibility of the narrative of the defendant and B.B. contextually with the whole body of evidence, but also taking account of the evidence of R.B. who is a sister to both B.B. and K.B.

[151] At the end of the case, when considered in the context of the whole of the evidence, there are three important issues in my mind that have caused me to be unsure that this sexual assault took place. Two of those issues arise out of B.B.’s evidence and one arises out of the evidence of R.B.

[152] These issues concern:

(i) the contradictions in the timing evidence relating to the reporting of the assault and B.B.’s interactions with D.C. Polok; (ii) the problem with the dogs and; finally (iii) whether R.B.’s evidence was truthful.

[153] On the first issue, B.B. acknowledged that there was only one report of the sexual assault. That was on August 19, 2018, the day after the tires were slashed. B.B. also testified, however, that she thought there had been two phone calls to the police, at different times, one relative to the slashed tires and another to report the sexual assault, but she was quite unsure. There is no record of two calls.

[154] When asked who she called, B.B. was clear that she had called the police. In fact, she said her sister R.B. was there with her in her living room as the call was made, but she also admitted that it was R.B., not her, who made the call, and who was the principal speaker on that call. B.B. was uncertain on what date she made the sexual assault report. However, the notes of P.C. Cawthorne establish that the assault was reported on August 19 at 2:42 p.m.

[155] Despite that irrefutable fact, in one of the inexplicable evidential conflicts that were present in this case, B.B. insisted in her evidence at trial that she had only learned early in August about D.J. confessing the alleged Canada Day weekend affair to his spouse, and her sister, K.B. It was at that time that D.J. allegedly told K.B. that it had been a weekend affair with her sister.

[156] B.B. testified before me that she thought that it was D.C. Polok who told her that D.J. had invented a story of the weekend affair at Wasaga Beach.

[157] I found this evidence problematic as compared to her earlier testimony, because there were two entirely different stories being presented. The evidence shows that the first time B.B. spoke to D.C. Polok was on August 19, in the second half of the 911 call intiated by R.B., and then in her statement to the police given later on the same day. The transcript shows that B.B. told D.C. Polak that the defendant made up his story of an affair with her two days after the assault.

[158] The exact language was as follows:

PC: Okay. Um, have you guys – the two of you ever had a sexual relationship? BB: No. And he came up with this story two days later that we did somethin’ on a weekend that I was up there. But the weekend he’s tryin’ to say, I wasn’t even there and there’s enough witnesses in the park to verify I was not there. PC: Okay. BB: I went up wanting - Wasaga Beach to the trailer. PC: Oh, trailer up at Wasaga Beach? BB: Yeah. PC: Okay. BB: He’s tryin’ to say we had a – like, a two-day affair or something. And the weekend I went up, that trailer was occupied that he said we did it in, it was occupied by the owner and her family members or whatever. PC: Okay. BB: So – and he’s tryin’ to say I did that just because I told on him what he did to me. PC: So, you told your – your other sister? BB: Yeah. I told her... PC: What... BB: ...what happened. PC: And what’s her name, sorry? BB: [K.B.].

[159] It is plain on the statement given by B.B. to D.C. Polak on August 19, 2018, that B.B. told the officer that D.J. had made up the story of the Canada Day weekend affair only two days after the alleged assault took place on July 17. But B.B. did not have satisfactory answers to deal with that situation, at least in my judgement.

[160] In cross-examination, B.B. responded to questions from defence counsel by saying that she only learned about D.J.’ having made up the story of an affair with her from D.C Polak, not from any other source

[161] The problem is that D.C. Polok could not have learned about D.J.’s allegedly concocted exculpatory story as described by B.B. until after August 19, when she gave her statement, as reflected in the transcript answers above. The reason is simple. B.B. never called the police before that date.

[162] Yet B.B.’s trial evidence explanation of the timing of the defendant’s alibi story of the affair arises in the evidence well before B.B. ever spoke to D.C. Polok. These two conflicting pieces of evidence relating to important matters of disclosure of the assault to the police, and alleged post-offence conduct by the defendant simply cannot co-exist.

[163] The second serious problem with B.B.'s evidence, in my view, relates to how the assault occurred, and in particular, her testimony relating to D.J. allegedly coercing the dogs with treats to vacate her room to permit him to perpetrate the assault but without making so much as a peep or bark to alert B.B. that someone was entering her room. Regrettably, it calls into question in my mind the plausibility of her description of the events as they transpired.

[164] B.B. agreed in her evidence that her dogs were unruly, could be aggressive, and did not like D.J. The chihuahua, Sadie, was likely to bite people and was protective of B.B. The other dog, Darla, did not bark much, but on the evidence of the defendant and R.B., both dogs were unruly.

[165] B.B. agreed they were bonded to and protective of her, would sleep regularly with her, and that they reacted to external stimuli like a person coming into the room. As dogs will customarily do, B.B agreed that Sadie and Darla habitually exhibited instinctual protective behaviour towards B.B. since she was their master, the hand that fed them, so to speak.

[166] Nevertheless, D.J. is alleged to have plotted to remove those two aggressive and protective dogs from the room, and to have used doggie treats to have achieved that goal silently, without barking and without waking up B.B. Further, inexplicably in my view, despite the fact that they did not know the defendant well, it is claimed that the dogs cooperated with him as if he were a dog whisperer, even though they were generally distrustful of others and protective of B.B, their master.

[167] B.B.’s statement to D.C. Polok on this point is reflected in the transcript of her August 19 statement:

BB: … I just elbowed him real, really hard and ran to the door and opened it. And my dogs come runnin’ at me. He let the dogs out before he did this. Yeah. PC: Um... BB: He let my dogs out o’ the room when he did this because he knew my older dog woulda bit him. PC: So, they were in the room with you? BB: Yeah.

[168] I find this explanation improbable and implausible taking account of the evidence of the complainant and the other two witnesses.

[169] Prior to July 17, 2018, at 1:30 a.m. according to B.B., she and the defendant had only a brief crossing of paths and very little interaction for the years leading up to moving in with K.B. and D.J. That was apart from and other than the spontaneous random evidence heard first in her cross-examination about the defendant stopping by on a few occasions to her home in Etobicoke. This statement contradicted her evidence in chief that she and D.J. had limited contact before she moved into the apartment and that, once she moved in, they only exchanged passing greetings as they each went about their own lives. There was nothing more, except for when B.B. agreed she was repeatedly asking for a rent letter.

[170] Further, according to B.B., from day one when she moved in, the defendant would not provide a rent letter for her to give to her disability worker. He refused and would not provide a reason. Thus, according to the complainant, and against that background, with no interactions, no prior history, and while B.B. was upset with D.J. for not cooperating with her about an important letter, he nevertheless was able to devise a plan to remove the dogs without awakening or disturbing or rousing her, and was then able to pounce on her in the early morning hours of July 17, 2018 while saying “you should’a been the one! You should’a been the one!” All just hours before his wife was due home from work.

[171] Perhaps D.J. had an unrequited romantic or sexual attraction to B.B. since their failed date in 1985, or perhaps it was the other way around. But the point is no real interaction ensued for 32 years, other than B.B. making him angry for hurting his stepdaughter when she decided, unprompted, to tell Tracey, when she was only 12 or 13 years old, that the defendant was not her biological father.

[172] Based on B.B.’s evidence, as confirmed by both the defendant and R.B., it is simply not credible to me that D.J. could have, (i) even opened the door to her room without causing the dogs to react in warning to her, or (ii) that he was then able to quietly and surreptitiously entice B.B.’s dogs out into the hallway, and (iii) go back into the bedroom without them and without barking, and (iv) then approach B.B. and start poking her private with his.

[173] Ironically we are cautioned against finding that persons will react in stereotypical ways, but what about animals, and dogs in particular? I do not allege that all dogs will act the same way when guarding their sleeping human master, the “alpha dog” of their pack who was B.B. in this case. However, my own life experience with dogs, tells me it is highly unlikely that D.J. could have removed the dogs that were attuned and devoted to B.B from B.B.’s room, regardless of the quality of the treats offered, without them warning her, making noise, and thereby alerting her to what she says D.J. was about to do. Perhaps not impossible, but exceptionally unlikely in my judgment and experience.

[174] B.B. also acknowledged that when she saw D.J., he was dressed. There was no evidence given at trial that suggested D.J. removed any of his clothing prior to allegedly jumping on top of B.B. while she lay on her stomach in her bed. She alleged that he used all his force to pin her to the bed, with his body and arms, (she demonstrated for D.C. Polok when she gave her statement). A serious struggle took place, and yet B.B. had no noticeable physical injury. She said D.J. was pinning her shoulders and legs the entire time with his hands as she fought him as strongly as she could, yet somehow he also managing to pull her pants down to the bottom of her buttocks. This struggle is alleged to have lasted for a full 20-25 minutes and yet, by the end, the defendant only managed to get her pants down just below her buttocks. That said, B.B. stated that D.J. was continuing to trying to “push” his penis into her vagina the entire time, even though her pants had still not been removed, and while it was unclear whether he was naked, at least below waist level.

[175] B.B. also stated that after she escaped from the bedroom where D.J. had tried to assault her, she hung out in the living room for over half an hour then drove around and came home just before 9:00 a.m. In cross-examination, she admitted that K.B. would have arrived home by then. Despite her earlier testimony in chef that she was hysterical, now in cross-examination she stated for the first time she was on the phone with R.B. but that she was stifling her hysteria and trying to be quiet so as to not wake up K.B. She had never before provided this seemingly important detail.

[176] I also was somewhat troubled by B.B.’s admission that her sister R.B. was home, across that hallway, throughout this time. I do not mean to engage in stereotypical thinking and am mindful that courts must be careful to ensure they do not suggest that a victim of sexual assault should behave in any particular way. However, with B.B.’s admission of being scared after she claimed the assault took place, it did surprise me that she did not simply cross the apartment building hallway to tell R.B. in person what had happened, especially given that K.B. was now home from work and sleeping, and B.B. did not want her to hear the revelation.

[177] Instead, B.B. asserted that she called her sister R.B. from the apartment where these events were unfolding, during a time she was allegedly hysterical, and told R.B. all of the details, but also – new fact – while being quiet, because she had to admit that K.B. was home by then. Given her earlier statement that she was screaming and said she actually thought R.B. would hear her across the hallway and through the walls, I was unable to make sense of this sequence of events or accept it as credible.

[178] It was more plausible in my view, given all of the evidence and how events unfolded from that point on that she called R.B. sometime in the morning around 9:00 or 10:00 a.m. upset about something K.B. and D.J. already knew about – not wanting to sign the rent letter.

[179] This scenario is consistent with R.B.’s evidence before me. That brings me to the third and final issue that causes me doubt. It is the impact of the evidence of R.B.

[180] Despite the problems with it, considering the witness and her interaction with the others, I find that R.B.’s evidence should not be rejected because I find that it is capable of belief and it is logical in the overall context. In response to my challenging question about the significance of R.B.’s evidence, however, I also agree with Crown counsel’s fair and candid answer to me that in order for the Crown to succeed in this case, R.B.’s evidence must be disregarded in its entirety. I am unable to do so.

[181] Despite the imperfections of the evidence, I have looked carefully at the transcript of R.B.’s interview of August 20, 2018, to establish that although her evidence seemed disjointed and impatient, evasive at times, it is capable of being believed and truthful. Despite Crown counsel’s claim that R.B. altered her evidence and was evasive, I am unable to reach that conclusion when I look carefully at her statement.

[182] R.B. testified that her sister, B.B., first told her about all of these allegations on August 19, 2018, the morning after B.B.’s tires were slashed. R.B. testified that she was so overwhelmed that she did not sleep all night before she spoke with the police, and gave her statement to D.C. Polok on August 20.

[183] One of the things that R.B. told us that she was thinking about all through that night, as mentioned above as well, was that she remembered getting a call from B.B. on July 17 when B.B. was very agitated. But R.B. was bewildered that B.B. did not tell her about any sexual assault the same day it allegedly happened.

[184] R.B. spoke to B.B. almost every day, but it stood out in her mind that when she had talked to B.B. on July 17, she heard nothing about any assault. R.B. also admitted in her testimony that during her statement she thought there was confusion about which day was being referred to.

[185] In the first sentence of the transcript, R.B. tells D.C. Polok:

Uh, my sister called me on July the 17th, uh, between nine and ten o’clock in the morning and she was hysterical.

[186] The next sentence, however, showed a change in direction. R.B. said:

And she had told me that D.J. tried to have sex with her or, uh, he tried to – he was just in some kind of mood, shape, whatever. I don’t know.

[187] These two sentences can be read differently. R.B. was upset and anxious. She was probably speaking quickly, as she did throughout her testimony. There are two possible meanings when looked at in the context of the rest of what she said. One interpretation is that R.B. was told about the assault on July 17. Alternatively, in my view, given the words that follow shortly thereafter, it can also be read that R.B. had received a phone call that day, and she was now being told by her sister B.B. that D.J. tried to have sex with her on that day

[188] It is a very short interview. When Officer Polak returns to ask exactly what she was told on July 17 specifically, R.B. did not hear his question. He first asks, commencing at line 22:

Um, so, when did she tell you?

[189] R.B. continued describing what she had been told, but without hearing the officer’s question. Then D.C. Polok interrupts her monologue and on pages 3-4 of the transcript the following exchange takes place:

P.C.: Um, how did your sister call – sound when she called ya at nine in the morning? R.B.: Pardon? P.C.: How did your sister sound when she called you? R.B.: Oh. Well, she’s still hysterical the same day she called me.

[190] R.B. testified that she had two phone calls with B.B., and that she was overwhelmed with the immediate events of August 19. R.B. did not hear the question from the officer. When she said “Pardon? effectively asking him to repeat the question, D.C. Polok did not repeat which phone call he was asking about. This is completely compatible with R.B.’s testimony that she was feeling anxious and, and in my view, there was confusion about which date was being referred to and on which date she learned about the allegations. Tellingly, R.B. answered the officer using the present tense. R.B. said:

Oh. Well, she’s still hysterical…. the same day she called me.

[191] R.B. clearly made a switch in this answer from the past to the present tense, and for the rest of the statement when she explains that B.B. had just moved in with her “yesterday.” In my view, the day R.B is referring to is August 19, not July 17.

[192] From the way R.B. recounted the allegations to D.C. Polok in her interview of August 20, it is clear that she was repeating verbatim what she had just been told. Her description of events is precisely what B.B. had testified to and presumably told police. B.B. gave her statement on August 19, 2018. R.B. testified that B.B. was telling her about the sexual assault on August 19, 2018. The evidence and the phraseology is almost identical, down to the smallest detail. All of these factors persuade me that it is much more likely that this was a story that R.B. had just been told, rather than something she was remembering from over a month previously. I have also noted that this timing explains why R.B. spoke with Crown counsel and D.C. Polok, the officer in charge, immediately before testifying and trying to clarify with the officer about when she learned about the sexual assault.

[193] R.B. confirmed that B.B. not only told her about the sexual assault on August 19, 2018, after R.B. drove back to the city at B.B.’s urging, but she was also told about the affair at the same time. This, again, was something that was shocking to R.B. because she remembered getting a call from B.B. on July 17 when nothing had been said, and she also remembered B.B. staying at Wasaga Beach in D.J.’s trailer in 2016. I accept that this would have been a momentous series of revelations, where R.B. was struggling to mesh her own recollections of those times with the new information she was receiving.

[194] It was only after things calmed down and she had a chance to talk to B.B. about how all of these things occurred that R.B. testified about asking B.B. what she did after the alleged assault.

[195] The 911 audio recording submitted by the Crown with the full content in evidence is important and supports these conclusions. The content of that call, the three voices, R.B., B.B., and the officer who answered the 911 call, demonstrates that at the time of phoning police on August 19, R.B. did not know what had allegedly happened the month before on July 17. This is a reasonable inference to draw since B.B. can be heard in the background telling R.B. the allegations step by step, and R.B. repeating it verbatim to the officer, until B.B. finally takes the phone and starts speaking with police herself.

[196] While on the call with the officer listening at the other end, R.B. can be heard turning to B.B. and asking her, “[W]hat did he do [B.B.]?” this evidence is plainly more consistent with R.B. being unaware of the sexual assault allegations at the time that call was made, and supportive of her evidence that she first heard the allegations on August 19, 2018, because she was unable on her own to give full details to the operator at the time of that phone call.

[197] When R.B. told the operator “I’ll never forget it,” she was answering a question about what date the assault was alleged to have happened. The comment is clearly only about never forgetting the date and has nothing to do with any contents of the phone call she received from B.B. on July 17. The 911 call shows that at that time on August 19, 2018, R.B. still did not know what the allegations were and had to be prompted by B.B. who then, frustrated, took the phone to tell the operator herself. The only thing R.B. said she would never forget was the date that B.B. was alleging the events took place.

[198] Thus, while R.B. was impatient and anxious in the delivery of her evidence, and notwithstanding the content of the recorded interview, I have found that R.B. is telling the truth. It was only at the lunch break on January 19 during the trial that R.B. again heard the 911 call in a meeting with Crown counsel and the officer in charge, and that led her to try to correct what she regarded as a misunderstanding of what she knew, and that revelation in turn caused the defence to call her to testify, rather than the Crown.

[199] The other aspect that supports R.B. only acquiring knowledge of the alleged assault on and after August 19, 2018, is her being upset that she did not help B.B. more, since she testified that she would have gladly allowed B.B. to come across the hallway and live with her, as B.B. ultimately did, if only B.B. had told her about the alleged assault closer to the time it allegedly happened.

[200] In addition to the credibility considerations I have addressed relative to each witness’s evidence, these three evidentiary problems disturbed me as I reminded myself that the evidence of a witness who is not careful with the truth while testifying may become suspect overall.

[201] I intend to conclude these reasons by referring to the decision of the Supreme Court in R. v. S. (W.D.) [10], because I find it closely captures my uncertainty at the end of this case. That case, S. (W.D.), was the first occasion on which the Supreme Court was called upon to consider a jury charge after it rendered its seminal decision in W. (D.) itself. Justice Cory clarified an aspect of his earlier decision in W. (D.), at paras. 23 – 24. At para. 23, he repeated part of the language from W.(D.) itself, including the three-step test, but then clarifies the point at para. 24:

Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown's evidence or that of the defence. To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other and yet on the whole of the evidence be left with a reasonable doubt. The effect of putting such a position to the jury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not be acquitted unless the defence evidence was believed. [Emphasis added]

[202] At the end of this case, in the entirety of the circumstances, I find that I am simply not sure on the whole of the evidence that these events did happen as B.B. described them. They may have, and as noted, I have found that there are elements of the evidence of all witnesses that are true, but I am not persuaded on the whole of the evidence that I do accept, that the Crown has proven the elements of this sexual assault beyond a reasonable doubt.

[203] As such, I am bound to enter an acquittal on this charge. This does not constitute a finding that he is not guilty, but D.J. will be acquitted simply on the basis that the charge is not proven under our law beyond a reasonable doubt.

[204] For the benefit of the complainant B.B., however, I wish to emphasize that this finding is a simple one. It is a finding that, in my view, the Crown has failed on the evidence adduced to discharge the very high evidentiary burden that is imposed upon it. It is not a finding that these events did not happen. It is a finding that I cannot be sure that they happened and so they are not proven beyond a reasonable doubt. I do understand this may be a difficult result for B.B. to accept, but I do hope that with the completion of this trial, she will be able to move on in her life.

[205] Finally, I am sincerely obliged to both counsel for the very thorough and professional manner in which they prepared and presented their cases on behalf of the parties, and in particular for their fulsome written closing submissions, which greatly assisted me in preparing these reasons.

Michael G. Quigley J. Released: February 25, 2021