Her Majesty the Queen v. C.H.

COURT FILE NO.: CR-18-103

DATE: 20210128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C.H.

Defendant

Natalie Thompson, for the Crown

David Crowe, for the Defendant

HEARD at Kingston: 7, 8, 9 and 10 December 2020

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

REASONS FOR DECISION

MEW J. (ORALLY):

[1] C.H. and J.E. are both 28 years old and have known each other since they were at high school together. Their relationship then was not romantic. However, they met up again in March 2016, at a mutual friend’s party, and started dating soon after that. By the late summer of 2016, J.E. was pregnant. She gave birth to a daughter, C., on 1 May 2017. C.H. is C.’s father.

[2] Throughout their relationship with each other, C.H. and J.E. lived at the homes of their respective parents. They never had a place of their own. Most nights of each week, however, they stayed together, either at C.H.’s parents’ residence or at J.E.’s parents’ home. The two homes were both located in Frontenac County, about a 30-minute drive from each other.

[3] The relationship, which was tempestuous at times, came to an abrupt end on 6 November 2017. On that day, J.E. went to the police and spoke to them about incidents that had occurred earlier that day. This led to charges of mischief, uttering threats and dangerous driving against C.H.

[4] Then, on 28 December 2017, J.E. provided a second statement to the police in which she made allegations against C.H. of physical violence, including sexual violence. As a result, further charges were laid against him for sexual assault causing bodily harm, sexual assault and assault. He was also charged with assaulting his daughter, C.

[5] At first the relationship between J.E. and C.H. was a happy one. C.H. was working for a roofing company. J.E. was preparing to start college in September 2016.

[6] However, from early on in the relationship J.E. became concerned about the amount of alcohol that C.H. consumed. As time went on, the relationship became, from J.E.’s perspective, more toxic. They had different sexual appetites, particularly after J.E. became pregnant. J.E. said that arguments often ensued if she did not want to have sex or C.H. had been drinking.

[7] The charges of sexual assault causing bodily harm (section 272(1)(c) of the Criminal Code), sexual assault (section 271) and assault (section 266) were presented by the Crown as global counts. This is a practice that sometimes arises where a number of single incidents occur over time. The incidents may, however, be collectively subject to a single count in the indictment if there is a pattern of conduct against a single complainant. The accused may be convicted on any one of the underlying incidents, provided that all of the elements of the offence charged have been proved beyond a reasonable doubt with respect to that incident.

The Evidence

[8] C.H. and J.E. both testified at trial. J.E. was taken through an essentially chronological account of her relationship with C.H., culminating in the incident on 6 November 2017 and J.E.’s subsequent disclosures to the police. I have organised my summary of the evidence based on the charges.

Assault (section 266)

[9] A number of separate incidents are said to support the charge that C.H. assaulted the complainant.

The Dresser Incident

[10] J.E. had gone to C.H.’s house at around 10 o’clock one evening. She was pregnant at the time. As they were lying in bed, J.E. was messaging a friend on her cellphone. C.H., who J.E. says had been smoking and drinking, was annoyed that she was using her phone. He said that the light was too bright. An argument ensued. Despite this, C.H. wanted to have sex. J.E. told him that she did not, and said that she was going to sleep on the couch. She was wearing loose track pants. She claims that while she was lying down in the bed, C.H. put his hands down her pants and touched her vagina, attempting to insert his fingers. She says that there was digital penetration. She tried to push his hands more firmly away to make it clear that she did not want to have sex. According to her, C.H. did not ask her if she wanted to have sex. He just tried to put his hands “down there”. She says that she was saying “No, I don’t want to have sex right now”. She was tired and wanted to go to sleep. Eventually, J.E. says that she sat up and was pulling C.H.’s hands away. She says he then ripped his hands up, against her vagina and skin. She then got out of bed to leave. As she made for the door, she says that C.H. stood in front of it, facing her and holding the door shut. When she went to grab the door handle, he pushed her away, saying, “No, you’re not leaving”. J.E. says that she told C.H. she did not want to fight. A tussle ensued over J.E.’s overnight bag. J.E. grabbed her keys out of the bag and tried to go around C.H. She says that he physically shoved her back into a dresser with two hands. She fell against the dresser, which hit the wall, making a sound. J.E. says that when C.H. pushed her against the dresser he said that he had not meant to. Immediately after this incident there was a knock at the door from C.H.’s mother. C.H. told her that nothing was wrong.

[11] J.E. says that she ended up going home that night. She was generally sore after the incident but not otherwise injured. When she tried to bring the incident up later, she says that C.H. said he did not remember it happening. She acknowledged that, prior to her testimony at trial, she had not previously disclosed that there was any sexual aspect to this incident and, in particular, that there was unwanted digital penetration.

[12] C.H. did recall the incident when he testified, albeit he remembers the incident differently. He does remember J.E. falling down but does not recall her grabbing her bag or hitting the dresser. He does recall that there was an argument, although he says that the reason for the argument was about a plan to go ice fishing. J.E., he says, became upset when C.H. could not tell her when or where they were going to go ice fishing. He agrees that he was calling her names and that she was getting up to leave. He says he did not try to prevent her leaving. But he confirms that he also got up. He says that J.E. then slapped him three times. After the second slap, he pushed her away from him. Quite hard. J.E. tripped on a laundry basket. But she did not hit the dresser. C.H. confirmed that his mother came to the door and asked if everything was all right.

The Woodpile Incident

[13] According to J.E., this incident occurred a couple of weeks after the Dresser Incident. It was in the fall of 2016 and she was about four months pregnant. However, C.H. recalls the Woodpile Incident as having occurred before the Dresser Incident.

[14] C.H. and J.E. had been out visiting friends. J.E. said that C.H. had been drinking and she could tell on the way home that the evening was going to end badly. She had asked C.H. not to smoke in the truck and this had led to an argument.

[15] According to J.E., by the time they arrived at C.H.’s residence she had already decided that she was going to leave and go back to her own home. However, she says that after getting out of the truck, C.H. blocked her way and that as she turned to go towards a different exit, he grabbed her arms. She says that she asked him not to grab her and told him that she thought it would be best if they just cooled off. C.H. did not want her to leave. Having been blocked at her first two attempts to leave, J.E. says that she was able to go through a door to the greenhouse. She made it into the greenhouse. C.H. was behind her telling her not to leave and that she was “fucking crazy” and that it was her fault. J.E. says that she pulled away from C.H. and that when she did so, he pushed her into a woodpile, which then collapsed. She cannot say whether he pushed her with one hand or two. The woodpile stopped her from falling fully to the ground. She acknowledges that C.H. also stumbled and caught himself on the lumber. J.E. had the keys to C.H.’s truck and got into it. She says that C.H. was trying to get into the truck himself to stop her from driving away. He hit the windows. J.E. said that she told him she was going to go, that they needed to cool off, and that she would come back in the morning. She drove away. She says that she called C.H.’s mother to tell her what had happened.

[16] J.E. was not injured as a result of this incident.

[17] J.E. acknowledges that she did not ask C.H. whether she could take his truck before doing so, and that he had told her that he did not want her to leave the property.

[18] C.H. acknowledges that he had been drinking that night. He says that maybe he had had a dozen beers. He denies that he tried to prevent J.E. from leaving when they got home. However, he claims that while he did tell her she could leave, he also told her that she could not take his truck.

[19] While there was in fact a lumber pile outside, C.H. does not recall having any physical contact with J.E. and does not recall anyone stumbling or falling. He acknowledges that he did try to prevent J.E. from taking his truck. He told her she would have to get a ride home. This, despite the fact that she was four months pregnant and it was cold and approximately 2:00 a.m. As a result of her taking his truck to go home, C.H. had to get a ride himself the next morning to retrieve his truck.

The Door Incident

[20] One weekend in September 2017 - after C.’s birth - J.E.’s parents had gone away for the weekend. She had remained at home so that she could do schoolwork, for which she needed their internet connection. C.H. had, according to J.E., gone out drinking with his friends. He then came over to the E. residence while J.E. was doing the dishes and the first thing he asked her was whether she was happy in the relationship. She says that from his tone she did not want to get into a deep conversation. She said they could talk about it in the morning. C.H. started to go upstairs. J.E. says that she asked him, “can you sleep it off on the couch and we’ll talk in the morning?” C.H. allegedly said no, he was going up to bed. J.E. said that she did not want to sleep beside him, knowing how it usually went. She followed him to the bedroom and said that she would get C. and go downstairs or sleep in her parents’ room. C.H. said that C. was his kid and he could take care of her. J.E. claims that C.H. pushed her out of the door, following which she says that she told C.H. she would sleep in her parents’ bedroom but to leave the door open. C.H. then shut the door and J.E. could hear C. in the room crying in her bassinet. J.E. felt she could not walk away and leave her daughter crying, so she opened the door and tried to get back into the room. She says that C.H. kept shutting the door on her arm, shoulder and chest. In the end, she was shut out of the room. She claims that C.H. was telling her that she was not going to take his kid.

[21] J.E. had a scrape on her arm as a result of this incident, but was not otherwise injured. She says she tried to have a conversation with C.H. about the incident the next day, but he told her he could not recall either the incident or the conversation.

[22] C.H. does not accept that there were times when he would get drunk and then not remember what had happened, although he says that there were two or three occasions on which J.E. told him that he had done certain things that he does not remember having happened.

[23] J. E.’s mother, [name redacted], testified that she and her husband had returned home on Sunday 17 September. When she went to unpack, she noticed that her bed had been slept in. She recalls her daughter recounting the Door Incident that had occurred over the weekend with C.H., and that he had been loud and violent. [Name redacted] observed that there was some damage to the door frame to her daughter’s room which had become loose with the nails showing. The door had not been damaged before they had gone away for the weekend.

The Door Handle

[24] A further incident occurred on 6 November 2017 – the day the complainant initially went to the police.

[25] As will be described in greater detail further on in these reasons, C.H. and J.E. had an argument that day following an early morning hunting outing. They had gone to a tree stand on the H. property. J.E. was upset with C.H. because she had arrived early in the morning expecting to go out hunting at first light but found C.H. still asleep and worse for wear as a result of a late night of drinking. After arguing, J.E. had walked back to the H. house; C.H. had come back in his truck. He arrived at the house first. J.E. went into the garage to get her belongings, with the intention of then getting her car and leaving. She says that C.H. came after her. She tried to lock the garage door behind her, but C.H. booted it open, smashing into J.E.’s hand and breaking off a fingernail, which started to bleed. She says that C.H. told her that he had not meant to smash the door into her hand. Their altercation continued after J.E. got into her car.

[26] C.H., who acknowledged that he was angry, yelling, tired, and a bit hung over, denies that the incident described by J.E. occurred.

Sexual assault (section 271)

[27] J.E. testified that there were multiple occasions of unwanted sexual activity. Typically, when she said that she did not want to have sex, an argument would ensue and result in either her acquiescing, C.H. forcing sex, or J.E. leaving.

[28] She said that on multiple occasions she would wake up to find C.H. trying to have sex with her. It would happen when J.E. was pregnant a few times each week when C.H. stayed over. She would wake up to him trying to put his hands or his penis into her vagina. She said that there would be no discussion. If she said “No”, he would continue. She would be dry, there was no lubrication, and no warm-up.

[29] These incidents continued after she had given birth.

[30] J.E. said that she simply accepted that this was how things were.

[31] C.H. does not recall any sex with the complainant being unwanted. While he acknowledged that on occasions J.E. would tell him that she was not in the mood, if she did so, nothing happened.

[32] He denies the allegation that he repeatedly woke her while having, or attempting to have, sex with her.

Stag and Doe

[33] J.E. recounted a night when they had been at a “Stag and Doe” party, followed by an after-party. J.E. was the driver. She was pregnant (in her third trimester). They did not get home until 5:00 or 6:00 a.m. She says that she just wanted to pass out and go to sleep. But, she says C.H. demanded sex. They had gone up to C.H.’s bedroom. C.H. did not want her to leave and she knew that if she did leave, she would have to explain to her parents why she had been out so late when she was pregnant and at university. She recalls C.H. trying to initiate sex. She was saying, “it’s six in the morning; I want to go to sleep; I’m exhausted; I’m sorry I don’t want to have sex right now”. C.H. allegedly responded that she was misleading him and making an excuse because she was mad about being out all night. C.H. persisted. He put his hands down J.E.’s pants saying things like, “Come on” and “It’s going to be good”. J.E. conceded that these were things that normally might work. She says that he tried to penetrate her with his fingers. J.E. does not know how many fingers. She says she was clenching her legs shut and trying to push him away, but he was still forcing his hand, partially penetrating her. She was dry. It was rough, and it hurt. C.H. was telling her to stop fighting him and to be a good girlfriend and have sex with him.

[34] J.E. conceded (in cross-examination) that her trial testimony about this incident was the first time that she had mentioned that there was unwanted digital penetration. She said there were lots of incidents that she had not elaborated on, and that she could have provided further information about. She repeated that C.H. would frequently awaken her by penetrating her with his fingers or his penis.

[35] C.H. does not recall this incident. He does recall going to a Stag and Doe while J.E. was pregnant and being out until five or six in the morning.

Pillow/Breastfeeding Incident

[36] J.E. recounted an incident which, she says, occurred in her bedroom. She and C.H. were in bed. C., who was about two months old, was with them and was laying beside J.E. who was breastfeeding. It was during the night. C.H. had been sleeping and woke up. J.E. says that he wrapped his arms around her and tried to penetrate her with his penis. There was no discussion. J.E. says that she said, “No - I’m nursing”. She did not want to have sex while she was nursing her daughter. She says that C.H. continued trying to enter her until eventually, C. had unlatched and J.E. had tried to put her in her bassinet. As she tried to get up to do that, she says that C.H. was pushing her down. He was trying to get inside her. J.E. says that C.H. did penetrate her, but not for long. She was squirming and saying to him that he should at least let her get C. out of the bed. Eventually, she managed to do so. She had just started to face him again and lay down. She says that C.H. did not wait until she was in a comfortable position and started trying to have sex. He was penetrating her, and she said it was really painful. He said that if she didn’t move and didn’t fight it wouldn’t hurt. J.E. says that she tried to get herself in a position where at least the angle wouldn’t be painful on her C-section. But, she says, C.H. would not wait long enough for her to do that. She was telling him to stop. He was telling her to shut up and be quiet. Although J.E. says that C.H. penetrated her for a few minutes, it felt like a long time. Eventually, she says, she was loud enough that C.H. knew that her parents would hear. C. started crying. C.H. got off of her and started getting dressed. He said he wanted to go to his parents’ house. It was 6:15 in the morning. At some point during all of this, C.H. grabbed a pillow off the foot of the bed and whipped the pillow at J.E. It smacked the wall and her shoulder.

[37] J.E. said that this episode was painful because she was not able to get into a position where her abdominal muscles were not engaged. There was no lead up. As she put it, “It was just ramming in there”. She says that she did not want to engage in any activity. She says that she tried to explain to C.H. that she was still in pain from her Caesarean section, that she described as “major abdominal surgery”. She was worried that she would not heal properly. She says that C.H. responded that the doctors had said that it would be only six weeks before she could have sex again, and that the restrictions would be lifting weights. The implication being that J.E. was using her C-section as an excuse.

[38] J.E. did not tell her parents about what had happened that night. She said it was embarrassing and really private information that she did not want them to know was happening to her. She said that not only would it have upset them, but they would have wanted to do something about it.

[39] C.H. does not recall the incident described by J.E. While he said there were times that J.E. would be feeding C. in bed and he would be lying behind her, he never tried to initiate sex when she was feeding C.

Hunt Camp

[40] After C.’s birth, when she was about three months old, J.E. and C.H. went to his family’s hunting camp for a weekend away. There is a 60-foot by 60-foot building on the property, with camper trailers on each side. The camp is about one kilometre from the road. C.H., in his evidence in chief, described how he and J.E. hung out, walked around and had “a couple” of drinks (beer), although he subsequently acknowledged that he drank about six bottles of beer. They played cards and darts. There was a discussion about having sex. J.E. says that pretty much as soon as sexual activity started, she regretted saying yes. J.E. said they had started having normal sex when C.H. said he wanted to tie her up. J.E. said that she responded, “Can’t we just enjoy this normal sex?” Based on a previous episode, she said that she knew C.H. had no respect for whether such sex was hurting or there was discomfort. But, she said, because they were at the hunting camp alone and C. was sleeping, she thought that it would be in her best interest to go along with it.

[41] C.H. said that part of their discussion about having sex that day included trying it while J.E. was tied up.

[42] C.H. got some rope. He wanted J.E. to be on her stomach so he could tie her legs and hands together. He told her that if she stopped squirming and went along with it, it would hurt less. J.E. was concerned about lying on her stomach because of her C-section, and with his weight on her, not being able to use her arms. Having tied her up, there was no further discussion about what was going to happen. C.H. attempted to have anal sex. J.E. said she asked him not to. She was clenched. He responded that he wanted to have anal sex because it was tighter, and it would feel good for him. She repeated that she did not want to. He continued on. According to J.E., C.H. was holding her hands and feet as they were tied. He ended up penetrating her until he finished. Ejaculating in her rectum. She said that when he started trying to penetrate her anally, she became really scared. He told her that if she stopped fighting and let it happen it wouldn’t hurt so badly. She estimates that the anal intercourse lasted for five to ten minutes. When it ended, C.H. went out to urinate. She was able to unravel the rope - which was not knotted. She was in pain. She went to the outhouse but could hardly sit on the toilet. Everywhere was in pain. Her incision hurt and her rectum was “shredded and bleeding”.

[43] C.H. acknowledges that he and J.E. had anal and vaginal sex at the hunt camp and that it lasted about ten minutes. He says that no force was used. Nor did J.E. give any indication that the sex was unwanted. After it was finished, he says he took the ropes off and then went to the washroom and “that was it”.

Necktie

[44] There had, according to J.E., been a previous occasion during which unwanted intercourse took place after she initially agreed to be tied up.

[45] J.E. was pregnant at the time. They were in his bedroom at his parents’ house. The incident started with what she initially described as regular, consensual sex, which had then become violent, with C.H. slapping her breasts and backside. She says that C.H. wanted to tie her up. J.E. agreed to it. She thought it would be better than what had been occurring up to that point. Before starting, C.H. did not say exactly what he was going to do or how he was going to do it.

[46] C.H. got a necktie from his closet. As C.H. tied her up and tied her hands tight, she started getting a feeling that she should not have agreed. He tied her hands together and her feet together. Initially, J.E. was lying on her back. C.H. wanted to flip her over. J.E. could not do that on her own with her hands tied. So, C.H. moved her onto her stomach.

[47] J.E. says that when he started to have sex, it was rough. She asked him to stop because it hurt. It was uncomfortable. When the position changed and she was on her stomach with her legs and arms tied together, he resumed vaginal sex. She claims that C.H. would not let her change positions to try and get comfortable. C.H. had said that it felt good, so he did not want to stop and ruin it for himself.

[48] J.E. said that she once again asked him to stop. But she was not able to get out of the tie. C.H. continued until ejaculation. He then got out of the bed, wiped himself off with a towel, and went to the bathroom. While he did this, J.E. was able to flip herself around and get the tie off. She claims that the only discussion that occurred during all of this was C.H. telling her that if she didn’t squirm it wouldn’t hurt and that, as C.H.’s girlfriend, she should like to do that. She says that he laughed that there was a big bruise on her backside from where he had been hitting it.

[49] C.H. does acknowledge that he and J.E. had sex while she was tied up with a necktie. He described this as a mutual decision. J.E. had, he says, shown him a picture of a sex swing on the Internet. They had consensual sex while her hands and feet were tied together. When it ended, C.H. says that he helped J.E. get untied and then he went to the washroom.

Mother’s Day Weekend

[50] When C. was two weeks old, J.E. and C.H. decided to go to Toronto for the weekend. It was J.E.’s first Mother’s Day. She thought it would be nice to get away – just the three of them as a family – to bond. On the journey, there was a discussion about sex.

[51] Before arriving in Toronto, they stopped at a store selling sex aides. J.E. bought some lubricant and (according to C.H.) a butt plug. J.E. said that she bought these items so that anal sex would be less painful. She said that she knew C.H. had no respect for boundaries. C.H. interpreted these purchases as part of the plan to have consensual sex.

[52] After arriving at the hotel, C.H. wanted to have sex. They went out to get some food and then came back and ate in the room. Once C. had gone to sleep, J.E. says that C.H. remarked that because J.E. had not given birth vaginally, she should be able to have sex. He said that the doctor had said that she could have sex again vaginally when she wanted to. And that J.E. had made him go two weeks without sex and that it was “killing him”. As she was hesitant about having vaginal intercourse, he said, “We can still have anal”. J.E. said she thought it was better to go along with it – it would cause less internal pain or damage. C.H. said he would go slow to see how it went.

[53] J.E. says that despite C.H. saying that he would go slow, as soon as he started to enter her rectum, he went as fast as he could. He did not ask her if she was okay. Even though she said, “no”, and “it doesn’t feel right”, and “it hurts”, several times, he continued going until he was done. J.E. was bent over on her knees and chest. It was too uncomfortable for her to lie down. C.H. was behind her pushing her head down by her neck with one hand and holding her hip with the other. She cannot say how long he was penetrating her for. He ejaculated inside her rectum. After he finished, he got up and went to the bathroom and cleaned himself up. J.E. says that there was bleeding through her vagina and rectum. C.H. brushed it off as just bleeding from the C-section. J.E. said that she agreed there was bleeding from the C-section, but that it had been disrupted from that event. The bleeding was enough that it was dripping. She was trying to get into the bathroom to avoid bleeding on the bed or the carpet. She tried to explain to C.H. that this is why she had not wanted to do what had just happened. She was in pain and scared about her incision opening. She said that she was not trying to punish him. J.E. says there was no penetration vaginally on this occasion.

[54] C.H. agrees that he had anal sex with J.E. on the Saturday evening of the Mother’s Day weekend in the hotel in Toronto. He says that lubricant was used and that there was no complaint by J.E. After they had anal intercourse, they had vaginal intercourse.

[55] On the morning of Mother’s Day, C.H. proposed marriage to J.E. She suggests that the proposal came at about 4 o’clock in the morning. She said that she was hoping things could work out. She believed that C.H. loved her and that he wanted to be with her and with C. There was no discussion about what had gone on the previous night. The proposal was not what J.E. had envisioned. But she thought that if he wanted to marry her that maybe there was a chance they could work things out. She accepted the proposal.

[56] C.H. described how, prior to leaving for Toronto, he had spoken to J.E.’s father and told him that he intended to propose. He was given J.E.’s grandmother’s ring to use as an engagement ring. He said that he proposed after they woke up on the Sunday morning and that J.E. was happy about the proposal. After she accepted, she took pictures which were posted on Facebook.

Sexual assault causing bodily harm (section 272)

[57] J.E. testified that there were numerous incidents of non-consensual anal sex which led to rectal bleeding. Such incidents occurred with increasing regularity starting about four months into her pregnancy. After C. was born, the incidents were less frequent, but still happened.

[58] There was a pattern. C.H. would want sex – anal sex – and J.E. would say “no”, hoping that he would listen. But she realised that it did not matter what she said. So she just tried to let it happen without clenching or squirming so that he could do it and it would be over. Bleeding after anal sex was a regular occurrence. And when J.E. had a bowel movement, it would re-open the cuts and she would bleed again. She did see her doctor, who thought the problem might be haemorrhoids or fissures. But she did not tell any doctor about the anal sex. To this day, she is conscious of bowel movements because that part of her anatomy has never really fully healed.

[59] J.E. recounted a particular incident in April 2017, during the ninth month of her pregnancy. She experienced what she described as a “huge gush of blood”. She ended up going to the hospital. When she was examined, her cervix was found to be intact, so J.E. says that she knew the blood must have come from her rectum. She had taken Metamucil regularly to make bowel movements soft. She went to the hospital in the evening. Earlier in the day, in the morning, there had been non-consensual sexual activity. J.E. testified that C.H. wanted to have sex. She was extremely pregnant. It was not comfortable. She says that C.H. said it was easier to have anal sex because it was quicker, and he could then go off to work. J.E. said that she knew there was no point in fighting it. If she closed her eyes and breathed through it, it was eventually done. But that day she noticed bleeding. And when she went to the bathroom that evening, it was bleeding and a bowel movement opened it even more. C.H. went with her to the hospital. But J.E. acknowledged that she did not share with the hospital staff the activity that occurred. She said she did not want to disclose that and have it escalate into something else. She just wanted to make sure that everything was all right with the pregnancy.

[60] This experience, she says, contributed to her hesitation after that to have anal sex.

[61] A doctor’s note of J.E.’s attendance at Kingston General Hospital on 5 April 2017 recalls that she presented with bleeding “?From hemorrhoids”. An examination revealed blood in the canal, dried blood in the vicinity of the anus, and visible external haemorrhoids. The discharge diagnosis was “bleeding internal hemorrhoids” and the recommended treatment included stool softeners and increasing fibre and fluids.

[62] C.H. said that before C. was born J.E. had told him that she had haemorrhoids. He believed that to be the cause of the hospital visit. He said he was never told that her bleeding was because of rough sex.

Assault on C. (section 266)

[63] Three separate incidents involving C. were recounted whereas any one of which, it was submitted by the Crown, would amount to an assault.

[64] According to J.E., right from the start, when C. would cry at night, C.H. would not get up. He would say that he had to work the next day. As J.E. would not be working, she should be the one getting up. She said that there never seemed to be a bond between C. and her father. C.H. was not patient when C. was crying or fussy.

“Poop Explosion”

[65] One day C. had what J.E. described as a “poop explosion”. When this occurred, she went upstairs to get the shower going so that they could wash C. off. C.H. was coming up the stairs with C. and yelling profanities. When he brought C. to J.E., he was screaming and holding her out. J.E. was trying to set the water temperature. C.H. was, according to J.E., so impatient that he was shaking. C. started peeing and he yelled at C., “you fucking little cunt”. C. would have been two to three months old at the time. He then held C. with his arms out, shaking her and not holding her head. J.E. says that she grabbed C. from C.H. She could not stand there and watch him escalate anymore. J.E. says that C. was terrified. She went from crying because she was upset to having what J.E. described as a look of fear in her eyes. Her head was rocked back on her neck. She did not have any physical injuries, however.

[66] C.H. recalls the incident. C. had pooped with sufficient enthusiasm that it had come out of her diaper, up her back, and over the couch. C.H. said that he and J.E. took C.’s sleeper off. He took her up into the bathroom and wiped her off with warm water and then passed her to J.E., who was in the shower. C. was then washed off. C.H. said that he was fine with what had happened. It was a normal baby poop.

[67] [Name redacted] recalls an occasion when the baby had an accident with poop. She heard her daughter and C.H. in the washroom cleaning off the baby and heard C.H. say, “There’s shit all over my hands”. [Name redacted] could hear that the baby was upset. She also heard C.H. apparently calling the baby a “cunt”.

Shower Incident

[68] On another occasion, J.E. was having a shower. C.H. had brought C. into the bathroom so that J.E. could wash her off. She was in the process of putting in her conditioner and C.H. was holding her. He had already undressed her and C. started to urinate. He was yelling, “hurry up”. C. started to scream. C.H. was holding C. under his arms as far away from himself as he could. There was no support for her head, which was hanging back. Mr. E. took the baby from C.H. She had not suffered any injuries and did not require medical attention.

[69] C.H. did not testify about this particular incident. More generally, however, he acknowledged that there were times that he would get frustrated and swear. But he denies having sworn at his daughter.

Shaking Incident

[70] [Name redacted] testified about an incident that occurred while her daughter was in the shower. She, her husband [name redacted] and C. were in the living room. C.H. was holding C. She was crying. C.H. initially bounced her on his knee in a manner which, according to [name redacted], who is a nurse by profession, was not the way to bounce a baby. The baby was crying harder and louder. C.H. had an agitated look on his face. Both [name redacted] and her husband noticed this. [Name redacted] described C.H. as then holding C. with his arms fully extended, his hands under C.’s armpits, shaking her backward and forward. [Name redacted] could see C.’s head going backwards and forwards. C.H. was getting more agitated because, according to [name redacted], he did not know what to do about the crying. C.H. then took the baby upstairs. [Name redacted] said to his wife, “You go”. [Name redacted] said that he remained downstairs to “maintain his cool”.

[71] [Name redacted] followed C.H. to the bedroom that he shared with J.E. There she observed C.H. standing at the end of the bed with C. in his arms bouncing her vigorously, her head unsupported and jarring back. C. was crying louder. [Name redacted] said that the look on C.H.’s face frightened her. She took C. and demonstrated to C.H. how he should be holding her and rocking her. She could see that C.H. was very angry. She also wanted to make sure the baby was all right. In her view, what C.H. had been doing was very close to shaking her. She laid C. flat on the bed, checked that she was moving her arms and legs, checked her reflexes and checked her spine. She said that she was very scared for the possibility of shaken baby syndrome.

[72] There were no visible injuries to C. as a result of this incident.

[73] C.H. recalled the incident and, in particular, [name redacted] following him up the stairs. But he denied having shaken C. or having acted inappropriately. He thought that [name redacted]’s intervention was simply to help him calm C. down. He testified that there was never a time when [name redacted] offered him advice on how to hold C. or how to support her neck and head.

Dangerous Driving (section 249(1)(a))

[74] This count arises out of the events of the morning of 6 November 2017. After J.E. had left the tree stand where she and C.H. had, briefly, been preparing to hunt, she walked back on foot towards the H. residence. C.H. followed her in his truck. According to J.E., C.H. drove his truck so close to her that he repeatedly bumped her, albeit at a walking pace, saying, “get in the fucking truck”. J.E. claims that the mirror of the truck hit her shoulder and that the bumper hit her back. She described these manoeuvres as nudging her with the truck. She says that she had moved over to the ditch beside the track when the mirror made contact with her.

[75] Throughout this event, J.E. claims that C.H. was revving his truck and yelling at her. Eventually, he just spun his wheels and drove off. J.E. continued on foot until she got back to the H. residence.

[76] C.H. agrees that he followed J.E. in his truck and asked her to get in. She said no. He drove alongside her. She would not get in. After a couple of minutes, C.H. drove off. He says that his vehicle never touched her. She arrived back at the house a couple of minutes after C.H. and their argument continued.

Uttering threats (section 264.1(1)(a))

[77] After C.H. and J.E. got back to the H. residence from the tree stand, their argument continued. I have already made reference to the Door Handle incident, which J.E. says resulted in her fingernail being broken. After that, J.E. went to her car. C.H. followed her. She got in. C.H. was banging on the car windows and telling her to get out so he could talk to her. He was trying to block her from leaving. J.E. claims that C.H. told her that if she did not get out of the car, he was going to smash every window in the car. He said that if she left, he would follow her to her parents’ house, shoot her and her parents and take his child. He said that he would come with his father.

[78] C.H. then banged on the hood of the car and dented it, about which I will say more shortly. J.E. got out of the car. Following an exchange concerning the dent to the car, C.H. again said that if she left and went home, he would be there within an hour and that his father would follow him and that she (J.E.) would be shot if she tried to stop him from taking C.

[79] J.E. said that she was very frightened. She says that C.H. was screaming at her. She knew that he had a gun there. She could hear and see how angry he was. She did not want to risk going to her parents’ house. She had hoped he was just trying to scare her.

[80] As previously mentioned, C.H. did acknowledge that he was angry, yelling, tired and a bit hung over. But he denies threatened her in any way.

Mischief (section 430(4))

[81] This charge arises from C.H.’s alleged denting of the hood of J.E.’s car.

[82] C.H. does not deny hitting the hood of the car with his hand. His explanation, however, is that J.E. was in her car and driving away. She had rolled down her window and was still yelling at him. C.H. says that he told her to get out to talk. She kept yelling at him. C.H. said that he walked away but that J.E. nudged towards him. He hit the hood of the car with his fist. He acknowledges that the car was damaged. He also confirmed that J.E. did not make contact with him using the car.

[83] After C.H. had damaged the hood of the car, J.E. told him, “I can’t hide that”. She denies that the damage to the car was provoked by her nearly hitting him with the car as he was walking back to the house.

Analysis

[84] In this, as in any criminal case, a person accused of a crime is presumed innocent. That presumption can only be displaced if the Crown proves the guilt of the accused person beyond a reasonable doubt.

[85] Proof beyond a reasonable doubt does not mean proof to a standard of absolute certainty. But proof beyond a reasonable doubt is a standard which falls much closer to absolute certainty than to probable guilt.

[86] Probable or likely guilt is not enough. I cannot find C.H. guilty unless I am sure that he committed the offence charged.

[87] In coming to a determination, I am required to consider all of the evidence - the oral testimony given by the witnesses as well as the photographs and other documents that were received into evidence and marked as numbered exhibits.

[88] There were, as there are in almost all trials, conflicts in the evidence and inconsistencies, some of them difficult to reconcile.

[89] Ultimately, the nature of the evidence in this case engages the analytical process established by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 which, applied to this case, requires me to ask and answer these questions:

a. Do I believe C.H.’s evidence? If I do, I must acquit him.

b. If I do not believe the evidence of C.H., but I am left in reasonable doubt by it, I must acquit him.

c. Even if I am not left in doubt by C.H.'s testimony, am I convinced beyond a reasonable doubt of the guilt of C.H. on the basis of the evidence which I do accept?

[90] I propose to follow the same order, in terms of charges, as I did when I reviewed the evidence. Before doing so, however, I offer a number of general observations.

[91] As was acknowledged during the course of submissions, C.H. does not claim to be the perfect man. He appears to have been unaware that his attitude and behaviour were pushing him apart from J.E. He was stubbornly unprepared to change his ways, particularly when it came to smoking, drinking and spending time with his friends. It was conceded that there was a certain self-centredness in C.H.’s approach to his responsibilities as a boyfriend/partner and a father. I would say that understates C.H.’s approach to things. He drank to excess. He refused to change. His concession to the repeatedly expressed concerns by J.E. and her parents about his drinking was to reduce his drinking when he was at J.E.’s home. He had a foul mouth – although J.E. was likely no angel in that department either – and I accept the Crown submission that C.H. is unlikely to have modified the language he used when casting insults at his daughter who, at the relevant times, would have been too young to understand him.

[92] The Woodpile Incident provides an example of what, in my estimation, typified the relationship between J.E. and C.H. This was one of the incidents when C.H. appears to have had a more complete recollection, in terms of detail. By his own account, he told J.E. that she could leave, but despite the fact that they were in a relatively rural location, it was two o’clock in the morning, she was four months pregnant, it was cold and she could not take his truck to get home. Why? Because if she took his truck, he would then have to get a ride himself the next day to get it. Apart from the obvious complete lack of consideration for J.E., who that evening, had driven C.H. home after he had, by his own admission, consumed about a dozen beers, his evidence that he told her she “could leave” is indicative of an attitude on his part that he had some sort of entitlement to tell her whether she should stay or could leave. While being a chauvinist is not a criminal offence, C.H.’s self-absorption permeated much of the evidence, both his own and J.E.’s.

[93] J.E. is criticised by the defence for only disclosing certain allegations and details for the first time during her evidence at trial. I will say more about that later when I evaluate the evidence relating to the various charges. But it is also alleged that she is strongly motivated by her desire to prevent C.H. from having access to C. Not only are there ongoing Family Court proceedings, but J.E. has, it is alleged, rebuffed all approaches and opportunities to facilitate C.H. having some contact with his daughter, who he has not seen since before the 6 November 2017 incident.

[94] Two letters to J.E., sent by email, from a family lawyer retained by C.H., respectively dated 21 December 2017 and 23 January 2018, went unanswered. The letters made reference to C.H.’s terms of release and the possibility of supervised access with C. J.E. claimed that she had not seen the December letter until a number of days after it was sent, and by the time the January letter came along, had been advised by a family lawyer not to respond.

[95] J.E. denied that she was opposed to C.H. having any access visits with C. But she acknowledged that she had initially suggested that such access should only take place under the supervision of her own parents, it being her view that C.H.’s parents were not suitable supervisors. She claims that she had proposed, through the medium of Children and Family Services (“CFS”), that supervised access could take place under the supervision of CFS if it was unacceptable to C.H. for such visits to be supervised by J.E.’s parents. She said that had heard nothing in response to that proposal which, she assumes, was communicated to C.H. by CFS.

[96] For his part, C.H. explained that his bail terms allowed contact with C. under the supervision of Children and Family Services or family members, but that contact with J.E. or her parents was prohibited. He said that he and his parents had asked about visits with C. under supervision of CFS but had been told by CFS that J.E. would not agree to that.

[97] The defence argues that J.E.’s evidence has been influenced by her animus towards C.H. and her desire to prevent him from having contact with his daughter, either now or in the future.

[98] I do not accept that argument.

[99] It is natural that a mother would want to protect her child. Her initial insistence that access visits be supervised by either her or her parents may not have been either realistic or feasible, but it was not malicious or contrived to gain some advantage. I am therefore not persuaded that J.E. had tailored, embellished or invented evidence to further whatever outcome she may wish to achieve in Family Court proceedings.

[100] I will turn, then, to the specific charges.

Assault (section 266)

[101] The allegations of assault on the person of J.E. are based on what have previously been described as the Dresser Incident, the Woodpile Incident, the Door Incident and the Door Handle incident.

[102] C.H. would be guilty of the offence of assault, contrary to section 266 of the Criminal Code, if, in respect of any of these incidents, the Crown has established beyond a reasonable doubt that:

a. C.H. applied force to J.E.;

b. C.H. intentionally applied the force;

c. J.E. did not consent to the force that C.H. applied; and

d. C.H. knew that J.E. did not consent to the force that he applied.

[103] I do not accept C.H.’s evidence concerning these incidents.

[104] He does not even recall the Door Incident, maintaining that even if he was drunk the night before, he would still have remembered the incident the next day if it had in fact taken place. And, in respect of the Door Incident, there is evidence, through [name redacted], of otherwise unexplained damage to the door frame of J.E.’s bedroom.

[105] With respect to the other incidents, C.H. does not deny that something happened. But I found his explanations either incomplete, unconvincing or both.

[106] Accordingly, employing the first limb of the W. (D.) test, I cannot resolve this charge on the basis that I believe C.H.’s evidence.

[107] The second limb of W. (D.) requires me to consider whether, if I do not believe C.H.’s evidence, I am nevertheless left in reasonable doubt by it. If so, I must acquit him.

The Door Incident

[108] It does not appear to be seriously disputed that C.H. has a temper which, at times, can be explosive. Similarly, by his own admission, he is prone to liberally use vulgar, and, I would suggest, often aggressive language. There is evidence, in relation to the dresser incident, from both C.H. and J.E., that whatever was going on was sufficient to cause C.H.’s mother to come to the bedroom door and ask if everything was alright. Both C.H. and J.E. confirmed that an argument was going on (she says it was precipitated because C.H. complained that her use of her phone was disturbing him; he says that she was annoyed at him because he was unable to tell her what the plans were for a proposed ice fishing trip), that he was calling her names, and that she was getting up to leave. Although he says he did not try to prevent J.E. from leaving, he confirms that he also got up. One is bound to ask why, if as he says, he was not trying to prevent her from leaving. He also acknowledges that he pushed J.E. away from him, but only after she had slapped him three times, and having done so, that rather than J.E. being shoved back into a dresser, she tripped on a laundry basket.

[109] I do not believe that C.H. got up from the bed, as J.E. was preparing to leave, to give her the opportunity to slap him three times. Rather, I accept the evidence of J.E. that C.H. got up in reaction to her attempt to leave and shoved her backwards into the dresser with sufficient force that it attracted the attention of C.H.’s mother, who then came to the door.

[110] Having so found, all of the constituent elements of the offence of assault have been proven beyond a reasonable doubt with respect to that incident.

[111] Before leaving that incident, I will address the concern which the defence raised about J.E.’s evidence at trial that the incident was immediately preceded by unwelcome sexual advances and touching on the part of C.H. J.E. had not mentioned this in previous accounts of the incident given by her. I was invited to conclude that her newly disclosed evidence was at best unreliable, and at worst manufactured. As I will discuss in due course, delays in the disclosure of evidence of sexual abuse or assault can occur for a multitude of reasons and it should not be assumed that such delay diminishes the believability or reliability of such evidence. In any event, whatever precipitated J.E.’s desire to leave, and C.H.’s attempt to stop or dissuade her, has no bearing on my conclusion that he assaulted her.

[112] For the sake of completeness, I will address the other incidents.

The Woodpile Incident

[113] The key distinction between the respective accounts of C.H. and J.E. about the Woodpile Incident is whether C.H. pushed J.E. into the woodpile, as she alleges, or whether there was simply an argument about her leaving, without any physical contact by C.H. with J.E.

[114] C.H. acknowledges that he tried to prevent J.E. from taking his truck to go home. Given that concession, I find myself unable to accept that he calmly stood by while she went ahead and took his truck anyway. I have already commented on the fact that he seemed to think it was appropriate to make J.E. make her own way home despite her being four months pregnant with his child, and it being two o’clock in the morning, rather than him suffering the inconvenience of having to retrieve his truck from her home the next day.

[115] J.E.’s account of that incident is both comprehensive and credible. I accept her evidence that, not only did C.H. push her into the woodpile, but that he then tried to get into the truck to stop her from driving away, and having failed to do so, banged on the windows. J.E.’s evidence that she called C.H.’s mother to tell her what had happened was not contradicted.

[116] [Name redacted] recounted how, in early December 2016, she and her husband had gone on vacation to Myrtle Beach. They phoned J. to check in with her on 11 December. She was upset and told them that she and C.H. had been at a house party, that C.H. had been drunk the night before and that J. had been the designated driver. J. told them that C.H. had insisted on staying at the party for longer than J. wanted and that they had then had an argument about him taking open liquor to the vehicle for the drive home. J. had told her parents that after arguing, she had come home to the E. residence and told C.H. not to come over.

[117] After [name redacted] had returned to Canada, J. told her that C.H. had pushed her into a woodpile on the evening that J. had spoken about on the telephone.

[118] [Name redacted]’s account of the telephone call she had with J. the day after the Woodpile Incident and J.’s subsequent disclosure to her, a few weeks later, that C.H. had pushed her into the woodpile, provides further support for the account given by J.E.

[119] Accordingly, I am satisfied that the Woodpile Incident also supports a finding of guilt on the assault charge.

The Door Incident

[120] C.H. does not recall the Door Incident.

[121] I am satisfied on the basis of J.E.’s evidence that it did, in fact, happen. J.E.’s own evidence about the event is supported by her mother’s subsequent observation that the door frame to her daughter’s bedroom was damaged that weekend.

Door Handle

[122] Finally, with respect to the Door Handle incident, it occurred as part of a series of transactions in a rapidly escalating argument. C.H. does not recall the incident as described by J.E., although he does acknowledge that there was a heated argument at the time and that he was angry, yelling, tired and a bit hungover.

[123] Again, J.E. has a far more detailed recollection. The Door Handle incident occurred not long after C.H. had, by his own admission, followed J.E. in his truck and asked her to get in. Their argument had continued after she got back to the house on foot. I accept as entirely plausible and accurate J.E.’s account that she closed a door behind her to prevent C.H. from following her and that he kicked the door open. He likely did not intend to break her fingernail or cause the precise injury she suffered. However, I am satisfied that he did apply force by kicking a door that J.E. had just closed and that she was likely still close enough to be struck by the door as he kicked it open, and that he did so intentionally. The facts of this incident too, therefore, support the charge of assault.

[124] Accordingly, there will be a finding of guilt on the third count on the indictment.

Sexual assault (section 271)

[125] As with the assault charge, the charge of sexual assault is presented as a global count. The incidents said to support this charge have been described earlier in these reasons as the Stag and Doe, Pillow/Breastfeeding, Hunt Camp, Necktie and Mother’s Day Weekend incidents.

[126] The allegations of sexual violence were not part of the original disclosure made by J.E. when she first went to the police. At that time, as part of the process of gathering information from J.E., a Domestic Violence Risk Management (DVRM) report was completed. J.E. says that a police officer filled out the form based on J.E.’s responses to questions. In response to a question about whether the subject (C.H.) had ever sexually assaulted J.E. or a previous partner, the “No” box was marked. When questioned on cross-examination, J.E. said that she was not sure if sexual interactions between partners would count. The questions arose in a section of the report dealing with the so called ODARA (Ontario Domestic Assault Risk Assessment) score. At the time of testifying at trial, J.E. said that she could not specifically remember being asked these questions. At another point during her testimony, however, she explained that the first time she reported to the police, the incidents of sexual violence were not on her mind. She was primarily concerned with her own safety, that of her family and of C. She “didn’t want to get into all of this other stuff”. She also said that she was in denial about it all happening.

[127] Not long after 6 November 2017, J.E. found out that she was once again pregnant. She says that this was a result of non-consensual sexual activity. She added that C.H. refused to wear condoms (although she was also on the birth control pill). She decided to terminate this pregnancy. C. was just six months old. J.E. was at university. She was on her own. She said that she could not add another child to the situation.

[128] J.E. told her mother about her pregnancy. [Name redacted] says that she berated her daughter for having become pregnant again. But she accompanied her daughter when she went for a termination, which occurred on 15 December 2017. [Name redacted] testified that after the abortion, it occurred to her that C.H. may have been abusive. She asked J. about that. It was then that J.E. told her that C.H. had raped her. It was 18 December 2017. [Name redacted] told her that she would have to tell the police. She also wanted her daughter to tell the police that she, [name redacted], wanted to report an incident of child abuse by C.H.

[129] J.E. confirmed that, with the encouragement of her parents and her counsellor, she reported to the police that C.H. had sexually assaulted her. She did so on 18 December 2017.

[130] C.H. has no specific recollection of the Stag and Doe or the Pillow/Breastfeeding incidents. Indeed, these incidents did not form part of J.E.’s disclosure to the police. C.H. and his counsel knew nothing of these allegations until J.E. testified at trial. Challenged about that during the course of cross-examination, J.E. responded that there were a lot of incidents that she had still not elaborated on. She said she could have provided many more examples. She said that C.H. would frequently awaken her by penetrating her with his fingers or his penis.

[131] To establish the guilt of C.H. on the global count of sexual assault, the Crown must prove beyond a reasonable doubt that one or more of the incidents that the charge is based on occurred. In addition to the elements of the offence of assault (the application of force to J.E. which she did not consent to and which C.H. knew J.E. did not consent to), the Crown must establish that the force that C.H. applied took place in circumstances of a sexual nature.

[132] By way of a general comment, it is now well established that courts should not assume that because a complainant delays in disclosing sexual violence, or because the complainant stays with the accused after sexual violence and thereafter succumbs to further unwanted sexual activity, that the complainant’s evidence should be regarded as unreliable.

[133] If one sets to one side, for the time being, the Stag and Doe and the Pillow/Breastfeeding incidents, C.H.’s evidence is that the other incidents all involved consensual sexual contact. Indeed, he says that he does not recall having any unwanted sex with J.E.

[134] In considering the first limb of the W. (D.) analysis in relation to the sexual assault charge, even taking C.H.’s evidence at its highest, it is that the sexual encounters in question started consensually and that he had no reason to believe that her consent was withdrawn. With respect to the Mother’s Day Weekend incident, for example, C.H. said there were “no complaints” and that it was “all consensual as far as I was concerned”. Of the Necktie incident, he said “she was fine with it”. Concerning the Hunt Camp incident, he said “she just went along with it”.

[135] Significantly, C.H. did not testify how or why he believed that J.E. had communicated her consent.

[136] When considering consent, whether to common assault or sexual assault, no consent is obtained where a complainant submits or does not resist by reason of the application of force (section 265(3)(a)); nor, in the context of sexual assault, can consent be given in advance – it must be present at the time when the sexual activity in question takes place (section 273.1(1.1)). Nor is consent obtained if the complainant expresses, by words or conduct, a lack of agreement to engage in the activity (section 273.1(2)(d)) or to continue to engage in activity which she initially consented to (section 273.1(2)(e)).

[137] Canadian law has clearly rejected as specious a defence of implied consent based on the assumption that unless a woman protests or resists, she should be deemed to consent: Regina v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 103; R. v. Barton, 2019 SCC 33, at para. 98. Furthermore, as Barton makes clear, a defence of honest but mistaken belief that a person has consented to sexual activity must be based on communicated consent: Barton, at para. 92. J.E.’s silence or lack of resistance do not connote consent.

[138] Against this backdrop of the applicable provisions and legal principles, C.H.’s generalised statement that he believed that all sex with J.E. was consensual, without more, could not form the basis for an acquittal on the sexual assault charge even if I completely believed him.

[139] With respect to the Hunt Camp, Necktie and Mother’s Day Weekend incidents, J.E.’s testimony conveyed concerns or hesitation, or even, so far as the Mother’s Day Weekend incident was concerned, a sense of resignation, the circumstances would not support a finding of no consent on her part to the initiation of sexual contact. On each of these occasions, however, J.E.’s testimony is that after consensual sexual activity started, she told C.H. to stop.

[140] During the Necktie incident, having agreed that C.H. could tie her up, after he had started to have intercourse with her, she says that she had asked him to stop because it hurt. C.H. had not, she said, given her a chance to get into a position where she could comfortably have intercourse with him. He refused to stop because he said he felt good and did not want to ruin it for himself. According to J.E., C.H. told her that if she didn’t squirm, it wouldn’t hurt and that, as his girlfriend, she should like to do that.

[141] With respect to the Mother’s Day Weekend incident, although J.E., by purchasing lubricant anticipated sexual activity, her evidence is that she was hesitant. She had given birth to her daughter less than two weeks previously. She had a Caesarean section scar that had not fully healed. According to her, when she expressed reservations about having vaginal intercourse, C.H. reasoned that they could have anal intercourse. I accept the evidence of J.E. that she agreed to anal intercourse because she felt it was best to go along with it and C.H. said he would go slow and would see how it went. But C.H. having entered her, and then proceeded with vigour, J.E.’s evidence was that she said “no”, “it doesn’t feel right” and “it hurts”, several times, to no effect.

[142] I accept J.E.’s evidence about this incident. She may have consented at the beginning, but she withdrew that consent.

[143] The fact that J.E. responded positively to C.H.’s marriage proposal a few hours after the Mother’s Day Weekend incident does not, in any way, negate her lack of consent to the continuation of intercourse once she had asked him to stop.

[144] At the hunting camp, too, I accept J.E.’s evidence that, having decided to go along with sex while being tied up, she withdrew her consent to sex when C.H. attempted to switch from vaginal sex to anal sex.

[145] In short, I am satisfied that on each of these occasions – the Necktie, Mother’s Day Weekend and Hunt Camp incidents – J.E. withdrew her consent to continued sexual activity. On each of these occasions, C.H. instead persisted with sexual intercourse. That is sexual assault. All three of these incidents are supportive of that charge. In the circumstances, I do not consider it necessary to go on to make findings on whether the Stag and Doe or Pillow/Breastfeeding incidents would also support a finding of guilt.

[146] For the foregoing reasons, I find C.H. guilty on the first count, namely that of sexual assault contrary to section 271(1)(c) of the Criminal Code.

Sexual assault causing bodily harm (section 272)(1)(c)

[147] This charge arises from an incident in April 2017 when, after what J.E. describes as unwanted anal intercourse one morning, she subsequently experienced a huge gush of blood, which resulted in her going to Kingston General Hospital to seek medical attention.

[148] To succeed in establishing the guilt of C.H. on this charge, the Crown must prove not only that there was a non-consensual sexual assault, but that the assault caused bodily harm.

[149] The medical staff at Kingston General Hospital diagnosed haemorrhoids. J.E. did not disclose that she had had anal intercourse. Perhaps, as she suggests, the fact that C.H. accompanied her to the hospital inhibited her from making such disclosure. Or perhaps, it was simply too awkward and embarrassing. But in the absence of definitive medical evidence, either in the form of a contemporaneous report, or at the very least, evidence that the complaints related by J.E. and the diagnosis from that evening could be consistent with the unwanted intercourse that she alleges had preceded it, I am left with sufficient doubt such that it would be unsafe for me to make a finding of guilt.

[150] Neither counsel in argument addressed the possibility that I could make a finding of the lesser but included offence of sexual assault in respect of the sexual encounter that preceded the trip to the hospital. In that regard, J.E.’s evidence was somewhat equivocal. While she said that there was a pattern of C.H. insisting on vaginal sex which would then switch to anal and continue even if she said “no”, it was unclear to me whether she had an explicit recollection that on the day in question she had withdrawn her consent to sexual activity. I am therefore left without the requisite degree of certainty to make a finding of guilt on either the charge of sexual assault causing bodily harm or the lesser but included offence of sexual assault.

Assault on C. (section 266)

[151] Three incidents were described which are said to amount to an assault on C. – the “Poop Explosion”, the Shower Incident and the Shaking Incident.

[152] C.H. acknowledged that he found parenting challenging. There were times that he would find it difficult to soothe C. When she kept on crying, he acknowledged that he would get frustrated. He admitted that when he got frustrated, sometimes he would swear, but denies that he swore around his daughter. He acknowledges that he would bounce her up and down, and that there were times when he would also be frustrated while doing it. But he vehemently denies harming or attempting to harm his child.

[153] Depending on the circumstances and context, jiggling a baby up and down on a parental knee may not amount to an application of force. Vigorously shaking a baby would. In some situations, there could be a fine line between the two.

[154] As I have already intimated, I do not believe C.H. when he claims that he did not aim vulgar language at his daughter. I also accept the evidence that his frustration was, at times, palpable, and that he may well have shaken or rocked C. more vigorously than was advisable. However, even if the vigour with which he rocked or shook her could properly be described as “force” for the purposes of section 266 of the Criminal Code, I accept C.H.’s evidence that he did not intentionally apply such force. In coming to that conclusion, I take into account the circumstances of the described incidents, each of which placed C.H. beyond his comfort zone and, seemingly, the range of his abilities to manage a young child. Accordingly, I am left in reasonable doubt as to his guilt on this charge.

[155] There will, accordingly, be an acquittal on the charge of assaulting C.

Dangerous Driving (section 249(1)(a))

[156] This charge requires the Crown to prove that C.H. operated his vehicle in a manner dangerous to the public. The charge arises out of what occurred after J.E. had left the tree stand on the morning of 6 November 2017. As she walked along the track back to the H. residence, she alleges that C.H. brought his moving vehicle into contact with J.E. as she walked along.

[157] Both C.H. and J.E. were angry at the time that this alleged incident occurred.

[158] I do not accept C.H.’s bald denial that there was no contact between his vehicle and J.E. He was driving alongside her as she walked, engaging her in conversation. In and of itself, this is foolish and potentially unsafe.

[159] The account that there was physical contact comes, of course, from J.E. She also says that C.H.’s operation of the vehicle forced her towards the ditch. But C.H. testified that there is no ditch beside that track. That strikes me as an important detail to be in dispute. It is not one that I can easily resolve based on the conflicting testimony of C.H. and J.E. It is enough to cause me to have reasonable doubt about other details of that encounter. I am not, accordingly, prepared to register a conviction on the dangerous driving charge.

Uttering Threats (section 264.1(1)(a))

[160] This charge also arises from the events of 6 November 2017 and, specifically, what happened when C.H. and J.E. got back to the H. residence following the tree stand argument. They were still arguing by the time they returned to the H. residence – him in his truck and her on foot.

[161] I am not convinced that C.H.’s acknowledgement that he was angry, yelling, tired and a bit hungover tells the whole story. There was, by both his account and J.E.’s, a heated verbal exchange. At some point, as I will discuss again in a moment, things became sufficiently heated that C.H. damaged the hood of J.E.’s car.

[162] C.H. testified how, the previous evening, he had sat up until the early hours with his father. He had been drinking whisky and, by his own account, was out in the garage between three and four in the morning, talking with his father.

[163] The Crown argues that, given this backdrop, it was not coincidental that when C.H. started to threaten J.E. later that morning, he told her that if she did not get out of the car, he was going to smash every window and that if she left, he and his father would follow her to her parents’ house, where he would shoot her and her parents and take his child.

[164] The elements of the offence of uttering threats are, firstly, that a threat to cause death or bodily harm is uttered or conveyed and, secondly, that the words are uttered with an intent to threaten. In determining whether the requisite mental element has been proved, it is necessary to consider the words used, the context in which the words were used or spoken and the person to whom the words were directed.

[165] I accept J.E.’s evidence that threatening words were used and that those threats included threats to harm J.E. and/or her parents and to remove C. These words – to the extent that they threaten to cause death or bodily harm to J.E. and her parents – would satisfy the first element of the offence. The context in which these threatening words were used was to dissuade J.E. from leaving. C.H.’s intent was to cause her fear that if she left, bad things would happen. This is more than C.H. being angry and yelling. He used threatening words and, by doing so, intended J.E. to feel threatened. Whether or not he intended to carry out his threat is immaterial.

[166] There will, accordingly, be a finding of guilt on the charge of uttering threats.

Mischief (section 430)(4))

[167] C.H. acknowledges denting the hood of J.E.’s car. Essentially, his only defence is that J.E. nudged the car towards him, the suggestion being that his striking of the hood was in some way defensive or in reaction to a provocation. But he also acknowledges that J.E. did not cause the car to make any contact with him.

[168] I do not accept C.H.’s explanation as to what happened. In my judgment, he slammed his fist down on the hood of the car in anger. J.E.’s comment that “I can’t hide that” was telling. It was likely a reference to the fact that although she could hide many other things that happened between her and C.H., presumably from her parents, this was something that she could not hide (particularly bearing in mind that the legal owner of the car was her father).

[169] I find C.H. guilty on the mischief charge.

Conclusion

[170] There will be findings of guilt on counts 2, 3, 5 and 7 of the indictment. C.H. is acquitted of the charges contained in counts 1, 4 and 6 of the indictment.

Graeme Mew J.

Handed down (orally): 28 January 2021

COURT FILE NO.: CR-18-103

DATE: 20210128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C. H.

Defendant

REASONS FOR DECISION

Mew J.

Handed down (orally): 28 January 2021