WARNING The Court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE NO.: CR-19-32 DATE: 2021/03/12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J. R.

Counsel: Alexandre Simard, Counsel for the Crown Paul Lewandowski, Counsel for the Accused

HEARD: October 13, 14, 15, 21, 2020 and January 19, 20, 21, 22, 2021

Reasons for Judgment

leroy, j.

Introduction

[1] The Crown brought 29 counts against Mr. R. Counts one, two, three and twelve were withdrawn by the Crown. Mr. R was subject to two probation orders through the material time. Eight counts relate to s. 733.1(1) breaches of probation and are derivative to the seventeen substantive counts.

[2] Mr. R elected to not adduce evidence. The salient issue in this trial is whether or not on each of the substantive counts the credibility and reliability of the complainant’s narrative is sufficient to establish guilt beyond reasonable doubt and rebut Mr. R’s presumption of innocence.

Background

[3] The complainant, Ms. S age 37 has two children by separate fathers. Her marriage to David S broke down in late December or early January 2017. They began to live separately in different homes on May 14, 2017.

[4] Ms. S met Mr. R on April 14, 2017. They moved in together on June 1, 2017. Their relationship ended on October 30, 2017. At the material times, they resided in the open basement apartment of a home owned by Mr. R’s parents.

[5] Ms. S’s life at the time was complicated. Her daughter was struggling. According to her, Mr. S and Mr. R resented one another.

[6] Ms. S’s health issues include complex regional pain syndrome, fibromyalgia, endometriosis, vaginal prolapse post birth with repairs, depression, anxiety and PTSD since 2018. Through their six months together, Ms. S was on medication for pain management, anxiety and depression.

[7] Ms. S acknowledged she and Mr. R consumed cocaine, amphetamines and hydromorphone cocktails. At times, they insufflated these substances for a faster stronger effect. Mr. R supplemented her prescribed pain meds from street sources.

[8] Ms. S said that mixing cocaine and opioids enhanced her function.

[9] The allegations are that beginning on July 14, 2017 and on various dates up to and including October 30, 2017, Mr. R assaulted her, sexually assaulted her, assaulted her with weapons, namely a baton and knife, threatened harm and death to her, harm to her family and Mr. S, confined her and withheld and broke her cell phone.

Discrete incidents in chronological order

June 11, 2017

[10] Ms. S was in a single vehicle MVA on this date at 4:00 a.m. Her vehicle was disabled for the balance of their time together. Before that, Ms. S could come and go as she pleased.

July 14, 2017 – the M incident

[11] Count 7 as amended, namely assault contrary to s. 266 is associated with this incident.

[12] July 14 was the anniversary of Ms. S’s marriage to DS. Ms. S wakened at 10:00 a.m. to a conversation between Mr. R and Billy M who had accessed Ms. S’s emails and found one from Mr. S lamenting the separation.

[13] She said she had to relieve herself but was unclothed under covers. M recounted his version of Ms. S’s reputation in the town, basically advising Mr. R of her ill-repute as a woman of loose morals.

[14] Mr. R provided a gown so Ms. S could get to the washroom and a coffee. M left shortly after Ms. S joined them. Mr. R was upset because Ms. S expressed displeasure over M’s continued presence in her home. Ms. S was upset. She felt degraded and dehumanized by M’s slander.

[15] Initially, Ms. S denied anything came of this encounter and denied anything like physical altercation near that time. She was then allowed to refresh memory from the transcript of 2 days of preliminary hearing – day 1 – pages 48-54 and day 2 pages 14-33 and 38-47.

[16] After refreshing memory, Ms. S recounted a physical altercation on July 14, 2017. Mr. R was angry at Ms. S over M’s contentions. Ms. S tried to escape the situation, but Mr. R grabbed her and threw her on the bed. He placed a pillow over her face to muffle her.

[17] In the police interview, Ms. S depicted Mr. R’s assaultive actions as smacking, pulling her hair and application of the pillow over her face. Ms. S agreed that she does not have good recall of the particulars of the assault.

[18] Although Ms. S in the statement to police on October 30, 2017 recounted incidents of violence, beginning in June 2017, at trial, she was certain the July 14, 2017 incident was the first. She depicted their mutual response to this incident as shock as there had never been physical violence directed at her before this date. She observed that Mr. R appeared remorseful. He sat at the end of the bed. She, on the other hand, grabbed a screwdriver. She determined to prevent any physical contact with Mr. R that day.

[19] On cross-examination, Ms. S denied that the events of July 14 were the first; rather it was the first memorable one. She could not recall details of incidents before this date. In the police interview on October 30, 2017, she said the first time something went wrong was in June. Withdrawn Count One asserts to an assertion of sexual assault in the month of June 2017.

July 27, 2017

[20] Ms. S undertook the role of Mr. R’s surety on this date. She was sure she agreed to undertake that role in May. Ms. S denied putting up a $5K bond as part of the process until the document was placed before her. She said Mr. R blackmailed her into agreement to act as surety. He threatened the safety of her family if she declined. She said she told victim witness assistance about the blackmail. She denied lying to the probation officer, the Crown or Court.

[21] When she was asked why when she told the police on October 30 that things began to go wrong at the beginning of June, she overlooked blackmail in May she said she was overwhelmed that day. She explained there was too much information to recount in one session so close in time to a relationship ending with domestic assault.

August 2017 – anal intercourse

[22] The counts associated with this incident are:

4 – aggravated sexual assault – 273(2)(b) – the Crown acknowledged the injury evidence did not make this offence out but that it did make out the lesser included offence of sexual assault causing bodily harm – 272(1)(c) 5 – breach of probation – 733.1(1) 6 - breach of probation – 733.1(1)

[23] Ms. S said she told Mr. R in June 2017 that for medical reasons anal intercourse was not an option. Notwithstanding, on a date in August 2017 Mr. R insisted.

[24] Ms. S disclosed on re-direct that they purchased coconut oil as lubricant.

[25] Ms. S was naked. She has no memory of whether or not there was foreplay. Mr. R inserted his penis in her anus. Ms. S was crying from the pain and asked him to stop. She thought he instructed her to go with it and it would be okay. Mr. R did not stop when she asked. He went on for ten minutes.

[26] During the preliminary inquiry in November 2018, Ms. S said the penetration hurt but she tried to hide the pain. She said then she told Mr. R she was in pain; she did not recall his response.

[27] Ms. S said that as the result her bowel and bladder prolapsed, so she was unable to urinate or defecate. After a week, she and Mr. R went to Montfort Hospital where she was treated for a urinary tract infection with medication and for constipation with an enema. Curiously, Ms. S said she believed the hospital visit with Mr. R was July 17, 2017. The Montfort records disclose an attendance with Mr. R on October 5, 2017 for treatment of abdominal pain and vaginal bleeding.

[28] Ms. S acknowledged on cross-examination that she and Mr. R had been on a 2-or 3-day binge when this happened. They were consuming hydromorphone and Adoral (amphetamine). She said she would bet this happened during the second day as it was usual practice to supplement with alcohol on the second day of such binges. She denied the drugs muddled her mind or memory.

August 2017 – Ms. S’s son

[29] Ms. S’s son age 4 stayed with Ms. S at the R home for nine days in August. Mr. S’s daycare provider took a vacation hiatus and Ms. S volunteered. She said this happened before Mr. S learned of the abuse. Mr. R’s mother was excited to have a little one in the home. Ms. S was desperate to see her child.

[30] Ms. S acknowledged having emailed Mr. S as early as June or July where she depicted the incident with the pillow on July 14 expressing fear for her safety.

[31] She said that she did not think Mr. R would harm her son. That was met on cross- examination with the repeated reference Ms. S made to threats Mr. R made against her family and their interests should she leave, go to the police or CAS.

[32] Ms. S’s response was that was different. The threats were inchoate while she stayed with him, or before she reported to police or the CAS.

[33] Ms. S said Mr. R was very good with the boy except for a couple of times when Mr. R raised his voice and another when Mr. R confined Ms. S and the boy in the basement bar area.

September 6, 2017 – the School Incident –

[34] The Counts associated with this date are:

8 – assault with weapon namely a baton 12 - sexual assault – 271 - withdrawn by Crown in submissions 13 – breach probation – 733.1(1) 14 - breach probation – 733.1(1) 25 – knowingly utter a threat to cause death to Ms. S – 264.1(1)(a) 26 – assault - 266 27 – willful damage without legal justification or excuse, to wit cell phone – 430(4) 28 – utter threat to kill Ms. S – 264.1(1)(a) 29 – assault - 266

[35] September 6, 2017 was the first day of junior kindergarten for Ms. S’s son with Mr. S. The setting was the Chesterville Public school parking area. The parents viewed this as a special event, and both wanted to be part of it. Ms. S said she jumped out of the truck before Mr. R parked as she was overwhelmed on seeing her son, whom Ms. S said she had not seen for some time.

[36] There is an incongruency in that explanation given she had cared for the boy for nine days shortly before.

[37] Ms. S and Mr. S participated in the observance with the child. Ms. S said Mr. R, who was waiting in the vehicle became angry because he thought she was overly familiar with Mr. S. As Ms. S and S exited the school, she heard Mr. R honk the vehicle horn and begin screaming at her. He said she was going to pay for it and she was dead. Mr. R said he saw Mr. S kiss Ms. S and they were holding hands. Ms. S said neither were accurate. Ms. S quickly entered the passenger side of the vehicle and Mr. R squealed his tires as he pulled out.

[38] In Ms. S’s trial testimony and preliminary Inquiry testimony, she was clear there was no physical touching by Mr. R before she re-entered the vehicle passenger side. In her statement to police on October 30, 2017, she said Mr. R jumped out of the truck, grabbed her arm and pulled her into the truck.

[39] Once in the cab, Mr. R said she kissed S and called her a whore. He threatened to knock her teeth out with a baton because she kissed S. He said he was taking her to his grandfather’s property where no one could hear her screams. He pushed her against the passenger side door. He threw her phone containing the morning’s pictures on the passenger side floor breaking it into pieces.

[40] Once they arrived at the deserted house, Mr. R grabbed her by the throat and held her against a wall. He had a baton in his hand while he repeated the threat to smash her teeth out with it. He repeated the dirty whore reference and demanded that Ms. S take a shower to cleanse. She did under his watch. They returned home after an hour. From there they went to Ottawa.

[41] Ms. S said she was afraid for her life.

[42] On October 21, 2020, initially when asked about whether there was anything else to recount of the events of that day, Ms. S drew a blank. She said nothing she could recall. She was allowed the opportunity of refreshing her memory by reviewing the preliminary transcript, day 2 pages 64 – 67. Her memory of the event recounted during the preliminary hearing was not refreshed.

[43] Ms. S was unable to carry on during the afternoon of October 21, 2020. Ms. S explained that she was and is exhausted. Her mother was in palliative care and Ms. S was by her side when Ms. S was not testifying.

[44] The trial was adjourned to November 6, 2020. On November 6, 2020 the file was adjourned to January 19, 2021.

[45] On January 19, Crown counsel revisited the school incident. Ms. S said they stayed at the deserted grandfather’s house for two hours.

[46] They returned from Ottawa at 10:00 p.m. to honour Mr. R’s curfew constraint. They discussed the events of the morning. Mr. R apologized. Ms. S doubted the genuineness of the apology. She told him that what happened was not okay, there was nothing between she and Mr. S and Mr. R had ruined her son’s first day of school. Her fear had not subsided.

[47] Mr. R wanted to have sexual intercourse. He did not ask if she agreed. She did not want to have sex with him at the time. She was reliving the events of the morning in her mind.

[48] She did not say no. She said she was afraid to say no. She said that she laid on the bed and took it. She depicted it as “she was non-responsive.” Mr. R consummated vaginal intercourse.

September 20, 2017

[49] Mr. R was acquitted after trial in Cornwall of criminal charges on this date. To celebrate, they decided to get married. Mr. R proposed and Ms. S agreed. Mr. R purchased a ring and they attended a photo shoot.

End of September 2017

[50] The evidence is that Victims Services gave Ms. S a rescue line cell phone two weeks after the acquittal. The cover story known to police and suggested by VWAP was that Mr. S presented a danger to Ms. S’s safety, the theory being that account would assuage Mr. R’s curiosity as to why she had the phone in the first place.

[51] The result was that Ms. S told Mr. R Mr. S abuses her and she told Mr. S Mr. R abuses her. Ms. S was confronted about some of the details she provided to Mr. R – the wine bottle insertion in her anus, domestic violence and threats to bury her under the backyard above ground pool and confirmed them as true.

[52] Even though she was engaged to Mr. R, Ms. S wasn’t committed and continued to hold out for reconciliation with Mr. S. Mr. S was actively trying to assist in extrication. Ms. S said she stayed with Mr. R as long as she did for fear of reprisals against them all. She believed she would not make it out alive.

October 18 and 19, 2017 – the CAS/bathtub Incident

[53] The incidents alleged here account for counts:

9 – sexual assault contrary to s. 271 10 – breach 11 – breach

[54] Two workers from the CAS attended the R home in Finch. Both testified. They were concerned that Ms. S had missed a scheduled meeting with her daughter’s teacher. Ms. S’s daughter stayed with Mr. S while Ms. S lived with Mr. R. The daughter experienced distress over the marriage breakdown.

[55] The male worker went into the home with Mr. R; the female interviewed Ms. S in the workers’ car. Ms. S said Melissa the worker observed bruising on Ms. S’s arms and hands. Ms. S said that Melissa expressed concern for Ms. S’s safety, but Ms. S assured Melissa everything was fine and the bruising must have been the result of a fall.

[56] Melissa denied observing discernible marks or bruising and any discussion about them. Melissa confirmed offering to remove Ms. S from the residence in the moment together with demur from Ms. S.

[57] Ms. S said Melissa offered to drive her away in that moment; however, Ms. S was afraid of reprisal so agreed to schedule another meeting at the school.

[58] Melissa confirmed discussion of an escape plan. Melissa became part of the cover story for their attendances and police involvement; namely that Mr. S was abusive to spouse and children. Melissa confirmed police complicity in the cover story.

[59] Ms. S and Melissa rejoined the males. The male worker showed the group a text from Mr. S offering Ms. S escape the authenticity of which Ms. S denied. The worker did not recall what it was he said to or showed Mr. R whether in the basement when they were alone together or during the debrief in the driveway but did remember that Mr. R’s tone elevated in response. He observed that Mr. R answered for Ms. S, held his hand against her back through the debrief dialogue and clearly wanted the workers to leave.

[60] The workers left and Ms. S and Mr. R returned to the basement. Mr. R blamed Ms. S for the CAS visit. He was upset by the information about escape plans. Mr. R yelled at Ms. S about escape disclosures made by the male worker.

[61] Ms. S tried to calm Mr. R making the point that she did not have a cell phone as Mr. R had it. Mr. R pushed Ms. S twice and slapped her face with his open hand causing her to fall to the floor.

[62] Matters settled and they drove to Ottawa. Initially, Ms. S said the rest of the day was uneventful. The trial broke for the day. On return the next morning, Ms. S recalled another incident connected to the CAS visit.

[63] Ms. S and Mr. R returned home from Ottawa by 10:00 p.m. as that was Mr. R’s curfew and she was his surety. Ms. S wasn’t sure if what followed was the same night but was almost certain.

[64] Mr. R wanted to share a bath because Ms. S remained upset about Mr. R’s reaction to the CAS visit. He was acting nicer toward her. He represented that he wanted her to calm down before bed and get a good night’s sleep. It became apparent the attention to her emotional distress was subterfuge for his objective of sexual gratification in the tub.

[65] Ms. S said Mr. R undressed her as the tub filled. He told her he loved her, that he wanted sexual intercourse in the tub and assured her it would be a romantic event. Ms. S did not want to engage in sexual intercourse with Mr. R in the tub. She did not say no. She was scared to say no. She was scared for her safety one way or the other. He did not ask if she was okay with sexual intercourse.

[66] On cross-examination, Ms. S agreed that to a neutral observer her initial actions would be consistent with consent.

[67] Initially, Mr. R attempted the act in a prone juxtaposition lifting her torso out of the water while submersing her head with his arm over her chest and neck. Ms. S tried to escape. She told him to stop, asking if they could do it a different way or location. She was terrified of drowning. He complied and they reoriented to vertical congress. Ms. S’s back was against the shower wall. Injuries included bruising to her tailbone, spine and shoulder.

[68] She said that although she was not interested in sexual activity at the time, the bed would have been safer for her. Ms. S said she has a dread of drowning in general and Mr. R was apprised of this from other discussions.

[69] Ms. S said she cried throughout the ordeal. Mr. R did not ask why. When Mr. R finished, he handed her a towel, they went downstairs to bed.

October 30, 2017 – the separation incident

[70] This was early morning. The events depicted account for counts:

8 – assault with weapon namely a baton and or knife 15 – assault – 266 16 – assault – 266 17 – willful interrupt or interfere with lawful use of property – 430(1)(c) 18 - willful interrupt or interfere with lawful use of property – 430(1)(c) 19 – without lawful authority confine Ms. S – 279(2) 20 – harassing and threatening without authority directed at Ms. S causing her to fear for her safety and that of David S 21 – utter a threat to cause bodily harm to Ms. S – 264.1(1)(a) 22 – utter a threat Ms. S to cause her death – 264.1(1)(a) 23 – breach 24 - breach

[71] This was the last day of the S R relationship. Ms. S said it had not been going well and contextualized the situation as one where Mr. R had confined her since the beginning of July. She planned to escape the house early before Mr. R awakened. She arose early in the morning. She said she arose at 3 or 4 a.m. in the preliminary hearing. At trial, she thought it could have been around 5 a.m. She was gathering belongings in the basement including her car keys, cell phone and purse. Mr. R had the keys and cell on his side of the bed. Ms. S said she did not know where the keys and phone were when police arrived.

[72] Ms. S acknowledged consumption of a small amount of street drugs in addition to those prescribed. She acknowledged cocaine and denied alcohol.

[73] Her plan was to return to Mr. S in Chesterville. He had been communicating with her about escape.

[74] She said Mr. R withheld her phone and vehicle from July onward. Her use was sporadic and surreptitious. She believed that if she reached out for help harm would befall her family. Mr. R told her that if she called the police, he would do terrible things such as have someone kill Mr. S, harm her children, burn the S house down, harm the family pet and sabotage the S family vehicle – counts 17,18,20.

[75] He also said he would inform the police that she had deliberately set fire to the S home in the past, that he would contact her physician and disclose that Ms. S was selling her prescribed medications on the street and he would report child protection concerns in the S home to the CAS.

[76] Ms. S acknowledged that her vehicle was disabled on June 11, 2017 when she was in a single vehicle accident at 4:00 a.m. Mr. R did not obstruct or interfere with her use of the vehicle. She obtained the rental vehicle just before October 30. Count 17 is dismissed.

[77] The cell phone piece is confusing. Ms. S’s narrative is that Mr. R basically confiscated her phone much earlier, that she seldom had access and if she did, Mr. R monitored her communications. Ms. S acknowledged during cross-examination that the cell phone service was cut off some time in October for account arrears.

[78] That Ms. S had use of the phone on September 6 at the school and that Mr. R broke the phone in the truck that morning is incongruent with this representation. The mischief inherent in the broken phone is covered in count 27.

[79] On cross-examination, she agreed to possession of two cell phones. One was provided by victim services with the limited use of reaching out to them. During the last moments of testimony in chief, Ms. S said she texted Mr. S as often as she could to let him know the progress of the escape plan. Count 18 is dismissed.

[80] Mr. R awakened before she could escape and discerned her intentions. He appeared infuriated. He began yelling at her and pushed her a couple of times. She grabbed the car keys and her phone and ran for the stairs. He told her she was not leaving. Mr. R grabbed and pulled her back to the bed.

[81] While on the bed, he placed his knee on her stomach and his hands on her throat. On cross-examination, Ms. S said he placed his right knee on her chest. She was screaming so Mr. R placed a pillow over her face. Ms. S scooched out from under and he pushed her or she fell to the floor between the bed and wall. Ms. S noticed the house phone on the floor, dialed 911 and left it on so the operator could hear.

[82] On cross-examination, Ms. S denied that Mr. R grabbed her neck on the bed; rather it was he placed a pillow over her face, he did not hold her hands or legs down; rather he held her shoulders, he did not straddle her; rather his knee was on her sternum.

[83] During preliminary inquiry testimony, Ms. S said that Mr. R straddled her torso and held her down by her arms. There was no mention of the use of Mr. R’s right knee on her chest.

[84] When she stood, she was between the bed and wall. When she tried to get past Mr. R, he pushed her into the bookcase. She said that hurt. Mr. R’s father came down the basement stairs. She tried to rise as Mr. R pulled her a distance of two feet by her hair toward the bar. Mr. R’s father told Mr. R to let Ms. S go and told her to leave so the fighting would stop.

[85] In the police interview, Ms. S said Mr. R’s father came downstairs while Mr. R was on top of Ms. S on the bed. The father told Mr. R to get off and told Ms. S to leave because she was crazy to stay.

[86] Ms. S said she was wrong in the police interview in that Mr. R’s father did not see Mr. R on top of Ms. S on the bed.

[87] Mr. R’s father was angry, upset and confused about what they were doing. He returned upstairs after Mr. R told him he would look after it.

[88] When the father left the scene, Mr. R grabbed his baton and knife and threatened her with her life if she left him. He said you will never leave here unless you are dead. He threatened to drop her in the deep well on his grandfather’s property where no one would find her.

[89] During the preliminary hearing, she said he would hit her and knock her out. At one point, he said he would kill her.

[90] When Ms. S tried to rise, Mr. R pushed her down. The father returned to say the phone was off the hook. He then received a call to confirm police were on route. The standoff ended when the police arrived at around 8:30 a.m.

[91] Mr. R became contrite. He asked why she called 911. She was his surety. He begged her to not disclose. When Sgt. Youmelle told Mr. R to take it easy as she would return the next day, Mr. R accepted. He gave Ms. S a hug and said he loved her.

[92] Sgt. Youmelle noted that when he saw Ms. S for the first time, she was trembling and appeared terrified. That said, when Sgt. Youmelle accompanied Ms. S downstairs to gather the phone or phones, her medications, purse and keys he observed that the apartment was orderly, furniture in place. He did not see any broken glass.

[93] The police took photographs of her injuries at 11:00 a.m.

[94] Ms. S described the injuries attributed to Mr. R’s assaultive behaviour. Her back was sore from the collision with the bookshelf. She described contusions on her arms, face from being slapped, legs from being dragged after the grab on the stairs, on her neck from when he had his hands on her throat on the bed.

Applicable Principles

Base Principles

[95] An accused person is presumed innocent. The Crown bears the onus of proving the charges against the accused person beyond reasonable doubt. This is a high onus and one that does not shift. An accused person is not required to explain anything.

[96] A reasonable doubt is one that is not imaginary, far-fetched or frivolous. It cannot be based on emotion or prejudice; rather it has to be one that logically arises from the evidence or absence of evidence.

[97] A finding of guilt requires more than belief that Mr. R is probably or likely guilty. That said, proof beyond reasonable doubt is not proof to absolute certainty.

[98] The accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond reasonable doubt. Is the Crown’s evidence sufficiently compelling to remove all reasonable doubt?

[99] The process of assessing evidence requires careful consideration of all the evidence presented during the trial. Juries are instructed to use good common sense in the assessment process.

[100] Complainants are entitled to reliance on a system free from discredited myths, generalizations and stereotypes as to how a victim ought to respond and a judiciary whose impartiality is not compromised by biased assumptions, the list of which is almost endless.

[101] For example, there is no inviolable rule on how victims of trauma like a sexual or domestic assault will respond. Emotions that include embarrassment, fear, guilt or lack of understanding can drive the decision to disclose or not and the timing. In assessing credibility, the timing of the complaint is simply one circumstance to consider in the context of the case; Delayed disclosure and non-avoidance standing alone will never give rise to an adverse inference against the credibility of the complainant – R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65. The dynamics of understanding where the abuser fits into the victim’s life can be very complicated. It may not be the sensible response for the victim to avoid the abuser.

[102] Disclosure will often be incremental. In this case Ms. S cited the effect of the morning’s turmoil and the extent of the narrative she was processing as overwhelming to explain discrepancies and inconsistencies between the police statement on October 30 and subsequent statements.

Sexual Assault

[103] The essential elements of sexual assault include:

i. Actus Reus -whether there was contact (application of force) objectively of a sexual nature to which the complainant did not subjectively consent; and ii. Mens Rea -whether the accused intended to apply the force and knew the complainant was not consenting to the sexual activity.

[104] In R. v. Ewanchuk, [1999] 1 SCR 330, the Supreme Court definitively defined non-consent for the purposes of the actus reus as the situation where the complainant in her own mind did not want the sexual touching to take place. This enquiry is subjective at this stage and requires determination of what the complainant did or did not want. This stage of the enquiry does not entail a consideration of whether she adequately demonstrated her state of mind.

[105] The Supreme Court rejected the ideas of implied consent based on the relationship between the parties or any other factor as well as the premise that a complainant has an onus to object by words or conduct, since that would suggest women are in a constant state of consent to sexual activity unless they indicate otherwise.

[106] Evidence as to what the complainant said or did before and after the sexual activity is relevant to whether it makes it more or less likely that the complainant’s declared state of mind is true. Evidence of what she said or did before the alleged assault should relate specifically to her intention to have sex with the accused and recognize that people can change their minds at any time.

[107] The review of evidence of what the complainant said or did after the event should not fall into the trap of assuming that real victims of sexual assault will behave in a predictable stereotypical way.

[108] Passivity is not consent. Evidence that the complainant did not struggle or try to escape is not relevant since this inaction is equally consistent with non-consent as it is with consent. There is no requirement for resistance. There may be many reasons why someone who is being sexually assaulted does not resist.

[109] Consent is required for each incident of sexual contact.

[110] Fear of violence vitiates consent. A coerced consent is no consent. Ostensive consent is vitiated as a matter of law by threats or fear of the application of force to the complainant or to a person other than the complainant – s. 265(3)(b) of the Criminal Code. In practice, this translates into an examination of the choice the complainant believed she had.

[111] In R. v. Hutchinson 2014 SCC 19 p 4- 19, the Court confirmed the CCC two-step process for analysing consent to sexual activity. The first is to determine whether the evidence establishes there was no “voluntary agreement by the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented or her conduct raises a reasonable doubt about the lack of consent, the second is to consider whether there are circumstances that may vitiate her ostensible consent – s. 265(3).

[112] The question is not whether the complainant would have preferred not to engage in the sexual activity, but whether she believed herself to have only two choices: to comply or to be harmed. If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective – Ewanchuk - [39].

Sexual assault causing bodily harm

[113] Consent is not a defence to a charge of sexual assault causing bodily harm only in circumstances where the accused deliberately inflicted pain or injury upon a person that gave rise to bodily harm. For consent to be vitiated, the serious harm must be intended and caused. Where there is no suggestion that the accused deliberately inflicted injury or pain to the complainant, lack of consent is an essential element.

Considerations relating to the assessment of evidence

[114] Testimony has credibility problems if the witness is intentionally offering in whole or part false, exaggerated or minimized information. In contrast reliability is about honest mistakes.

Endemic credibility Factors

A reputation for untruthworthiness or a motive to mislead can be factored into credibility assessment as can demeanor in the witness stand. It is fact that Ms. S was complicit in the cover story to mislead Mr. R about the reason for the phone. There is no evidence of a motive to mislead by the complainant. That doesn’t mean there isn’t one.

Demeanor

[115] Before relying on demeanor, trial fact finders should think critically about how and why they are struck by the performance of a witness and should be humble in their ability to draw appropriate significance from how testimony is presented. The trier’s subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness.

[116] That was evident from counsel submissions.

[117] The Crown submitted that the complainant’s presentation of a broken, traumatized incapacitated person lent sincerity to her testimony. Ms. S is a traumatised, fragile and vulnerable victim. The Court should take notice that she was consistently late for court, at the beginning of the day and at the end of breaks. She talked about chronic pain, fibromyalgia, anxiety and PTSD. She apologized for inconsistencies on peripheral matters.

[118] The defence saw it the other way. She was not a balanced witness. The same testimonial features relied on by the Crown were cited as deficiencies. The complainant tended to wander off on tangents on every issue, she offered gratuitous explanations when none were asked for, she tried to anticipate questions (such as the gratuitous offering about the limited utility of the VWAP phone) and she asked for breaks when questions challenged the consistency and plausibility of her narrative.

[119] O’Halloran J.A.’ comments from Faryna v. Chorny, [1952] 2 D.L.R. 354 at pp. 356-7, 4 W.W.R. (N.S.) 171 (B.C. C.A.) are often referenced as guideline for assessing credibility. The real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[120] Evidentiary Content and Credibility assessment factors in various considerations that essentially permit a panoptic evaluation of testimony and includes:

• The plausibility of the evidence;
• Supporting or Contradictory Evidence;
• External consistency;
• Internal consistency – where there is an internal inconsistency about a key fact, the fact-finder will be unable to accept the witness’s testimony about this fact unless there is a rational basis for preferring the in-court testimony over the prior inconsistent account. In a judge alone trial, if internal inconsistencies are material or frequent enough, it can be legal error to rely on that witness unless the trial judge articulates a reasoned basis for doing so despite those difficulties. In contrast, occasional inconsistencies on peripheral matters, that is things not material in law to the outcome are less likely to be important. Honest people can err on secondary matters because they may not have been of sufficient interest at the time to observe or retain. Still when peripheral inconsistencies proliferate, confidence in the witness can rationally be undermined in its entirety.
• The balance of the evidence – Balance exists when a witness shies away from apparent exaggeration or evidence minimization or admits unflattering or personally difficult facts. A balanced witness answers the questions asked and does not attempt to answer strategically.

The reliability assessment factors in various considerations that essentially permit a panoptic evaluation of testimony and includes consideration of the complainant’s capacity make relevant observations given factors such as her emotional state or well-being.

[121] This will involve an enquiry into whether there are there endemic factors creating concern about the memory of the witness including credible evidence of intoxication?

Crown Position on the case

[122] The Crown position is that the issue for the Court is reliability. Ms. S was a credible witness.

[123] Ms. S’s narrative relates to events from three and one-half years ago. No one recalls day to day details that far back. The core of her evidence was unaffected by cross-examination.

[124] Ms. S recounted what she remembered citing the M event in July, the anal intercourse incident in July early August, the school incident on September 6, the CAS incident on October 18 and the breakup incident on October 30.

[125] This is a case about power and control. The relationship began in April. They were happy. They shared everything together. That by October the CAS and OPP were involved and concerned is important confirmatory evidence of ongoing domestic violence.

[126] Ms. S said she wanted to leave when the abuse began and she was abused daily.

[127] The inconsistencies in her evidence were on peripheral areas such as on October 30 – did he straddle her to keep her down or did he apply his knee to her sternum, or did he push her off the bed or did she fell from momentum

[128] Inconsistencies show her to be human. It would be wrong in these circumstances to conclude that inconsistency on peripheral aspects of the abuse means she is unreliable or incredible overall.

[129] Ms. S was consistent on the central aspects of her narrative.

[130] The cross-examination directed at the apparent inconsistency about her stated fear for the safety for her children threatened by Mr. R and her decision to take her 4-year-old son into the home for nine days in August is aimed at stereotypical myth of how victims are expected to respond to abuse and threats of abuse and to discount Ms. S’s credibility for this reason would be an error of law.

[131] Ms. S explained the difference in context. So long as she remained ostensibly loyal to Mr. R, S and the children were safe. Clearly Ms. S missed and loves her children.

[132] Incremental disclosure is a fact of life. Ms. S acknowledged that when she talked to police her disclosure was incomplete. She was overwhelmed by the quantity of information she had to give such a short time after the emotional confrontation that morning.

[133] Ms. S talked about how Mr. R became more and more aggressive over the six months. There is no contradiction to the threatening either quantitatively or qualitatively.

Anal intercourse

[134] The issues here start with whether her words and actions belie denial of consent on her part. If she is found to have granted ostensible consent was it vitiated by fear of harm. If not, did she suffer bodily injury. Is there evidence to indicate that Mr. R caused bodily injury deliberately?

[135] She expected that anal intercourse would have harmful consequence. She discussed this with Mr. R who responded with “you are always in pain what is the difference”. She said they bought lubricant at Costco with anal intercourse in mind.

September 6

[136] Defence did not challenge Ms. S on her narrative once she re-entered the truck. Mr. R destroyed her cell phone, threatened to knock her teeth out with the baton for kissing S, grabbed her neck, threatened to dump her in the well, called her a dirty whore and demanded she cleanse with a shower.

The bathtub/CAS – October 18

[137] Ms. S said she was not interested in sexual activity that night but participated. Was that initial consent vitiated by fear? Did she withdraw consent in the course of the interaction? If she did not indicate withdrawal of consent when her head was submersed in the water did fear vitiate consent. She repeated that she was afraid to refuse.

[138] When Mr. R tried intercourse in the prone position her head was submerged if not her face, she was fearful of drowning and told him to stop. She protested for ten minutes. She was not cross-examined on this aspect.

October 30

[139] The parts of her narrative about how Mr. R confined her when he awakened pinning her on the bed, pillow over her face, dragging by hair was unchallenged. The details of the dynamic of how Mr. R pinned her on the bed were variable – straddle versus right knee on her sternum. The threats to her life, to her family and the concomitant element of fear were unchallenged on cross-examination. The piece about the baton and the knife was unchallenged. The photographs depicted the early stages of trauma in the area of her neck, arms and legs. Sgt. Youmelle observed that Ms. S appeared terrified; that she was shaking.

Defence Position

Internal and external inconsistency

[140] The internal and external inconsistencies in Ms. S’s testimony are so frequent and material that confidence in what she says about anything has been substantially compromised.

[141] Ms. S recounted a sexual assault to the investigating officer on October 30 from June 2017. At trial, she was certain that the first incident of domestic violence and sexual assault coincided with the anniversary of the S marriage. The point is that if the July 14 incident is actually correlated to her anniversary with S, then how could Ms. S place the incident to an amorphous time in June when disclosing to the police on October 30, 2017.

[142] The 3rd party record is akin to Pandora’s Box. The parties don’t know what is in a record until it is produced. Here the records contradict Ms. S. Ms. S correlated her attendance at the Montfort to the incident of anal intercourse at the end of July beginning of August. The Montfort records reference an emergency visit on October 5, 2017. Ms. S referenced a pelvic organ prolapse related to childbirth in evidence. The Montfort records reference a vaginal prolapse related to childbirth surgically repaired. The emergency records reference abdominal pain and vaginal bleeding as symptoms for treatment on the October 5, 2017 attendance. Ms. S said she remembers something that did not happen. It is a contradiction from testimony that erodes Ms. S’s engendered tableau.

[143] Ms. S recounted a conversation with the female CAS worker during the CAS workers’ attendance to their home on October 18 in the worker’s vehicle addressing the contusions on her arm. The worker remembered the attendance and their ostensive purpose. She denied having observed contusions on Ms. S’s arms or discussing them during their conversation. The worker said she would have in the performance of her employment noted contusions had she seen or discussed them. The CAS record is reliable. It is a contradiction. Ms. S remembered a topic of conversation that was not discussed.

[144] Ms. S offered the detail about what it was the Senior Mr. R would have seen when he ventured down the stairs while the events of the morning of October 30 played out. In one version to the police officer on October 30, he would have seen them on the bed with Mr. R on top. In the other at trial, he would have seen Mr. R holding Ms. S against the bookshelf.

[145] When defence asked Ms. S to describe the action on the bed, she said Mr. R held his right knee on her sternum to keep her down. In preliminary inquiry testimony Ms. S depicted the holding action as one of straddling her between his legs. Mr. Lewandowski made the point that it is one thing to offer detail to persuade but when the detail changes it bounces back on the complainant.

[146] Ms. S alluded to the baton and knife as aspects of the October 30 series of charges. Counsel noted the police did not recover either from the home.

[147] In relation to the September 6 incident, Ms. S said that after Mr. R yelled at her – that she was going to pay for it and she was dead – she was confident in her memory of opening the door and stepping into the passenger side of the cab. In her statement to police on October 30, 2017, she said Mr. R jumped out of the truck, grabbed her arm and pulled her into the truck.

[148] Mr. Lewandowski submitted that Ms. S’s memory deficits regarding the allegation of sexual assault in June and on September 6 raise serious issues about reliability across all issues.

[149] As to Ms. S’s sincerity in testimony, it is concerning that the fact of Ms. S’s substance addictions and that the incident of alleged sexual assault causing bodily harm (anal intercourse) in the throes of an opioid/amphetamine binge was only disclosed on defence cross-examination.

[150] The evidence is that Ms. S communicated disturbing reports about Mr. R to Mr. S and she communicated disturbing reports about Mr. S to Mr. R. The reports about Mr. S included threat of burial under the pool as well as an obsession with anal sexual activity – the wine bottle.

[151] Ms. S’s response to assertion of duplicity was that she had to explain the VWAP phone she received two weeks after Mr. R’s acquittal. She attributed the stratagem as having been conceived by VWAP so Mr. R would not suspect.

[152] The defence argument is that the only way the stratagem could work was if Mr. R had not done any of the things she attributes to him. If Mr. R had done what she says he did, the ruse was empty of utility.

[153] Ms. S responded to suggestion on cross-examination to questions suggesting the information she provided to Mr. R about S was of the same pattern she attributes to Mr. R by taking the position that her reporting to Mr. R about Mr. S’s abuse was true.

[154] Ms. S was confronted about the apparent inconsistency between her stated fear for her safety – dump her in the well and the safety of her family as the result of Mr. R’s repeated threatening – burn the home, harm the pet, harm the children and Mr. S and her decision to look after her 4-year-old child during August for nine days in the R home.

[155] She said she understood those threats were inchoate only to manifest should she determine to leave Mr. R. She also said that her need for time with her child was existential.

[156] Defence argued that as Mr. R’s surety, Ms. S had the power in the relationship. All she had to do was make one call and he would return to detention. When the police arrived at the house on October 30, Mr. R was scared.

[157] Defence argued that Ms. S used trauma as safe haven to avoid hard issues. At one point, she reviewed thirty pages of preliminary inquiry transcript to refresh her memory on an incident of rape. The point of opportunity for review is to refresh, not create memory.

[158] The closing submission is that there are far too many problems in Ms. S’s narrative to rise to proof beyond doubt. At some point, the evidence becomes so tainted the concern is looseness with the truth and has to be rejected.

Balance

[159] Defence counsel challenged Ms. S’s testimonial balance. He observed that Ms. S’s perspective of the events of the six months she and Mr. R were in a relationship was infected by revisionism painting Ms. S as victim and Mr. R as unmitigated reprobate. From Ms. S’s view her voice in all that went on was silent. She bore no responsibility. Mr. R dominated in every way and that does not accord with life’s experience.

[160] An implication is that practices driven by good intentions while the relationship remained intact become corrupted by hurt and anger after relationship failure.

[161] Ms. S derided Mr. R when the opportunity arose as a drug dealer who could always obtain street opioids, cocaine and amphetamines. It wasn’t until cross-examination was it clarified that Ms. S was the beneficiary of Mr. R’s expertise. At the time this was happening one inference is that Mr. R procured the street drugs because that pleased his girlfriend, a person with chronic pain who felt she needed to supplement her prescribed medication regimen.

[162] Although the photographs ostensibly taken to depict evidence of assault were too soon after the event to do what was wanted the photograph of Ms. S sitting on the chair spoke volumes. She looked like a strung-out opioid addict. Subsequent evidence confirmed it.

[163] Ms. S lamented restrictions on her driving privileges when she was talking about the incidents of September 6, 2017. She explained that Mr. R drove her everywhere in his parents’ vehicle and she was not permitted independent operation. Until cross-examination Ms. S did not disclose the fact her car was disabled after she was involved a single car accident at 4:00 a.m. in May 2017. Nor did she mention that Mr. R’s licence was only re-instated in August 2017. Nor did she mention that in fact she did have independent access to the senior R vehicle for household shopping.

[164] Ms. S said that Mr. R restricted her use of her own cell phone and that he monitored her communication. That was a sore point on October 30. She neglected to mention that the cell phone account had been frozen by the provider for unpaid charges.

Discussion

[165] As the trier I can accept some, none or all of a witness’ testimony.

Sexual Activities and Consent – Preliminary comment

[166] Of the four counts alleging sexual assault the Crown conceded two were not made out by Ms. S’s testimony, those being count one alleging an incident in June 2017 and count twelve alleging an incident on September 6, 2017.

[167] Count four relates to a sexual assault involving anal intercourse in late July early August 2017. Count nine relates to the incident said to have happened in the bathtub on the same day as the CAS visit.

[168] That there were sexual activities on those two occasions based on Ms. S’s narrative is not controversial. The first issue is whether Ms. S’s present denial of consent to these events is sufficiently credible and reliable to take the next step in the analysis. That is, if preliminary consent is made out, whether such consent was withdrawn or vitiated by fear and coercion.

[169] There is no evidence upon which I could find that the accused took reasonable steps to ascertain consent other than Ms. S’s acknowledgement of cooperative engagement.

[170] On the issue of bodily harm and assuming for the moment preliminary consent I need to be satisfied of Mr. R’s intention to cause bodily harm and that he did in fact cause harm.

[171] I want to ensure that these reasons are distanced from inappropriate inferences from Ms. S’s activities and inactivities. Her reasoning for taking her son into the Mr. R home in August in the face of her allegations of hegemony does not draw negative inference as to the credibility and reliability of her allegations in that respect. Her explanation resonates.

[172] Although I appreciate the sentiment, I reject the submission that the noted inconsistencies and imbalance in her telling are basis for outright rejection of her testimony as a whole. Nor do I accept everything she said at face.

[173] With those preliminary comments in mind I will address the incidents individually.

The assault July 14, 2017 - M

[174] At trial, this incident was correlated to the S wedding anniversary date and David S’s text or email intercepted by Mr. R and M. That seemed a reliable connector to the timing of the incident. Ms. S has not demonstrated internal or external inconsistency as regards M’s presence in their apartment. An electronic message from Mr. S is plausible. We know nothing about the extent of the friendship between Mr. R and M so any inference as to how Mr. R might be influenced by M’s exposition is speculation. Ms. S testified to the humiliation in her predicament – in bed without night clothes, having to relieve herself and listening to M degrade her was upsetting.

[175] Her version for the Court at trial is that Mr. R did not take Ms. S’s side; rather he was upset when Ms. S shooed M out the door and by the intelligence offered up by M.

[176] In preliminary hearing testimony, Ms. S had not correlated this incident to the date of the anniversary; rather this took place in July in and around the anniversary date. She did not hear what M had said about her; rather she was asleep. M left of his own accord when she awoke. She said then that Mr. R was upset by M’s intelligence and the argument escalated.

[177] Although the dates were inconsistent which lead to fairly significant amendments to the indictment, the core elements of this incident are that this was the first incident of physical violence, it was near in time to the S anniversary, the email, M’s stimulus, Mr. R’s consequential ire, the ensuing escalation, the pulling on to the bed and the pillow over Ms. S’s face all of which are plausible and consistent.

[178] The shift in Ms. S’s story regarding the stage of the men’s conversation when she woke and how it affected her level of indignation is a balance issue. The difference in setting and Ms. S’s sensibilities is subtle but material gratuitous embellishment to enhance the perspective of Ms. S’s victimization.

[179] That said the modified perspective related more to the context for the argument than the assault and is as such peripheral.

[180] I accept that Mr. R assaulted Ms. S on July 14, 2017 contrary to s. 266. Finding of guilt on count 7.

Sexual Assault causing bodily harm July/August 2017

[181] There are issues with internal and external inconsistency affecting both the credibility and reliability of Ms. S’s evidence on this matter.

[182] Ms. S was consistent about having advised Mr. R of the birth related organ prolapse that had been surgically repaired. Anal intercourse was something they discussed. In none of her statements did Ms. S say that she did not consent or that her consent was coerced.

[183] In preliminary hearing testimony Ms. S offered spontaneously she did not want to make him upset. She told him that she was hurting but she tried to hide it. She did not recall his response if he responded at all.

[184] At trial Ms. S did not recall foreplay. After he penetrated, she said she asked Mr. R to stop. He responded with “Go with it, it will be okay.”

[185] The context for both versions is that a reasonable person observing their activity leading up to commencement of the engagement would conclude it was consensual. In one version Ms. S said she determined to carry it through despite the pain. In the other she said she communicated withdrawal of consent.

[186] Further, Ms. S has not said she held an honest fear of harm if she had not complied at the time.

[187] That she was intoxicated raises issues regarding the reliability of her state of mind and memory of what she was thinking. She guessed this would have happened during the second day of the three-day binge. Ms. S valued the drugs.

[188] I conclude that this was a case where Ms. S would have preferred to not engage in this activity. That said anal penetration does not just happen. It takes preparation.

[189] The evidence does not support the inference that Mr. R intended harm.

[190] Further, the Crown has not proven bodily harm, that is hurt or injury that interfered with Ms. S’s health comfort or psychological well-being. The harm must be something more than brief or fleeting or minor in nature. The Montfort records do not support Ms. S’s narrative. The emergency records reference abdominal pain and vaginal bleeding as the main complaints brought to their attention on the October 5, 2017 attendance. Ms. S did not attest to any need for follow-up treatment or repair.

[191] I am not prepared to find a correlation between anal intercourse and organ prolapse and its significance without reliable medical evidence on the subject.

[192] Ms. S said she went to emergency with Mr. R within a week of this event. She did not.

[193] In my view, the Crown has not proven counts 4, 5 and 6. Those counts are dismissed.

September 6, 2017 – school

[194] The situation progressed from July 14. Back then Ms. S’s experience was one off. The events alleged in the truck and in the deserted farmhouse after they left the school, if true, represent a paradigm change.

[195] The conduct attributed to Mr. R in July was consistent with a fresh romantic relationship between lovers afflicted with arrested development. This conduct in September if true was about jealous control.

[196] On the issue of balance, it is correct that Ms. S was inconsistent as to whether she re-entered the cab of her own volition or whether Mr. R grabbed her arm and forced her into the cab; however she was not inconsistent about what happened after. Given the inconsistency, if one of the assault charges relates to the parking lot assault there would have to be an acquittal – count 26 dismissed.

[197] This was an important day for the child’s parents. Mr. R was on the outside and the result was an exhibition of petulance. Dating back to July 14, he struggled with the issue of Ms. S’s fidelity. He knew of Mr. S’s reconciliation aspirations, Ms. S seemed to him to be sending mixed signals and on a purely emotional level that could be an existential threat to his self-esteem. The significance of this day to the child and his parents in that capacity could be lost on Mr. R.

[198] To Ms. S, this event was desecrated by Mr. R’s acting out. Whatever Ms. S’s actions were that triggered Mr. R’s indignation are unimportant.

[199] I accept Ms. S’s recounting of the events immediately after in the truck cab - the push and trashing of her phone - and the vacant farmhouse. Ms. S’s evidence on this series of offences was unchallenged. Ms. S’s narrative including the throttle, the threats – damage to her teeth with the baton for kissing S, death in the well, the dirty whore reference and shower are not fiction. There will be findings of guilt on counts 8, 13,14, 25, 27 and 29. Counts 12 and 28 are dismissed.

October 18/19 – the bathtub

[200] Something happened that day whether it was something the male CAS worker said to Mr. R in the basement or something said during the driveway debrief that raised the spectre of Ms. S’s infidelity in Mr. R’s mind. There was much going on. The CAS appeared at their door. VWAP had provided a safety phone for Ms. S. The cover story was lame. S was talking about extrication. Ms. S herself wanted out of the relationship.

[201] While the female CAS worker denied having observed or discussing the contusions on Ms. S’s arms that is peripheral to the main impetus which was to offer Ms. S opportunity for safe escape. Why Ms. S demurred is unclear and there is likely other drama aside from Ms. S’s stated fear of reprisal against her and her family to explain it. Both workers were concerned at the end of the meeting about how Mr. R escalated. That they were unwelcome there was patent.

[202] Ms. S was playing both sides. That she was ambivalent about carrying on with Mr. R is obvious as was her addiction to opioids and amphetamines.

[203] Mr. R would have discerned what was going on and would have been concerned. So when Ms. S says he blamed her for the extrication communications and intrusions by community resources in his life, it makes sense. That he yelled, pushed and slapped is undifferentiated from the M and school incidents. Ms. S’s reporting is plausible, consistent internally and externally.

[204] Ms. S said she did not want to engage in sexual intercourse in the tub. She did not say no. The encounter earlier in the day was fresh in her mind. She was afraid to say no. Mr. R did not ask her to communicate consent. She agreed that to a reasonable observer her initial presentation would be consistent with consent.

[205] Mr. R’s first efforts submerged Ms. S’s head into and nearly under the water. When she told him to stop and asked to change position or location, he complied by changing position.

[206] The issue is whether Ms. S’s assertion about her fear of consequences should she deny Mr. R’s overtures is sufficiently credible to vitiate the implication of consent inherent in her positive response to them. By then Ms. S had experienced Mr. R’s temper and assaultive response three times. He had struck her earlier in the day. The jurisprudence observes that the fear of consequence need not be reasonable. Ms. S said she has a morbid fear of drowning. She was in a bathtub full of water.

[207] I accept that in all the circumstances Ms. S’s fear of reprisal having regard to the choices she faced vitiated the ostensive display of consent inherent in her objectively observed actions. Mr. R is found guilty on Counts 9, 10 and 11.

October 30, 2017 – date of separation

[208] The Court has heard one side of this incident. When police came on scene Ms. S’s appearance was consistent with that of a person who had just been through a harrowing experience. The fact of the 911 call suggests a level of fear of injury. The attending officers and the photographs confirm early signs of bruising in the likely places – wrists, arms, legs and neck.

[209] Some of the inconsistencies in Ms. S’s recounting cited by defence are about matters that one would not perceive as those central to the allegations. What Mr. R senior observed or not would be far down the priority list. Same with whether Mr. R seized her purse that morning or the night before, whether she was pushed or fell between the bed and wall. I would not be able to accept Ms. S’s testimony on these issues were they essential elements of an offence.

[210] The throes of a fight are dynamic. A trained fighter will remember particular moves or techniques used in a fight. In the case at bar, recall relates to broad strokes. For what it is worth, an assault is the intentional application of force. The details are not what is the issue. Witnesses to fights, car accidents or almost any in-the-moment incident without instant replay are notoriously unreliable about what they perceive and remember.

[211] Rather Defence argues that the inconsistencies about whether

• On the bed, Mr. R straddled her body or weighed his knee on her sternum
• On the bed, Mr. R held her arms or shoulders
• He placed his hands around her neck or not

are inconsistent versions offered for persuasive effect and that she is inconsistent about them logically has to impact negatively on the assessment of her sincerity not only on these issues but across all of her testimony.

[212] That submission overlooks the fact of Ms. S’s injuries which are externally consistent with her narrative.

[213] There was an assault. I am satisfied that Ms. S’s purport was to escape that morning. Given that she remained in the basement until police arrived supports her contention about confinement. Without police intervention, Ms. S was unable to recover her phone, purse and keys.

[214] As to the threatening charges in counts 20, 21 and 22, particularly count 20, the slice of life depicted in Ms. S’s narrative is reminiscent of “Pulp Fiction”. The arrested maturity on display is disturbing.

[215] Ms. S observed that the threat to her and the family was a conditional one – “if you leave me or go to the police I will exact retribution.” Ms. S’s persistent theme about living in fear for her life, about being beaten with the baton or cut with the knife, the fear of death in the deep well on the grandfather’s property and about postponing separation for fear of reprisal against her family is catalyst for the decisions she made over those 6 months.

[216] Ms. S instigated much of Mr. R’s insecurity. She enjoyed the drugs but was dishonest about her commitment to the relationship. Though not in evidence one can imagine the many discussions they had about expectations. Mr. R was all in and she was not. It was an unhealthy hook-up. Mr. R was alert to Ms. S’s ambivalence.

[217] When the pot boiled over, Mr. R acted out with the words and actions that bring him to court: July 14, September 6, October 18/19 and 30.

[218] I am satisfied beyond reasonable doubt that Mr. R made the threats attributed to him.

[219] Accordingly, there will be findings of guilt on counts 15, 17, 19, 20, 21, 22, 23 and 24. Counts 16 and 18 are dismissed.

[220] To my counting, there are findings of guilt on counts 7, 8, 9, 10, 11, 13, 14, 15, 17, 19, 20, 21, 22, 23, 24, 25, 27 and 29.

[221] There are findings of acquittal on counts 1, 2, 3, 4, 5, 6, 12, 16, 18, 26 and 28.

The Honourable Mr. Justice Rick Leroy Released: March 12, 2021