COURT FILE NO.: 17-RA19540, 18-SA5054,

and 18-SA5091

DATE: 2021/12/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

D.B.

Applicant

Carl Lem, for Her Majesty the Queen

Daniel Howard, for the Applicant

HEARD: April 29, May 1-3, 13, 14, 16-17, 21, and 23-24, August 27-29, and September 3-6 and 9-11, 2019; January 16-17 and 22-24, and March 2-3, and 10, 2020; and January 7, March 29, and October 4-7, 2021 (In person and, subsequent to March 13, 2020, a hybrid of in-person and by videoconference)

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

REASONS FOR JUDGMENT

corthorn j.

Introduction

[1] In 2017 and 2018, four women informed the Ottawa Police Service (“OPS”), that they had each been the victim of one or more sexual assaults by D.B. The alleged assaults occurred in the years spanning 2001 to 2017.

[2] In summary, the women allege that the sexual assaults occurred as follows:

EI – On May 1, 2005 and October 10, 2017;

KA – On September 5, 2016;

KJ – On a date between June 1 and August 30, 2016; and

DO – Repeatedly between January 1, 2001 and October 13, 2017.

[3] Each of the women alleges that the assault or assaults involved choking. Three of the women also allege that D.B. threatened them or a member of their respective families.

[4] For each of the women, D.B. was a source of crack cocaine (“crack”). The manner in which the women compensated D.B. varied from one woman to the next. For example, it is undisputed that two of the women at times traded crack for sex with D.B.

[5] As another example, DO is D.B.’s spouse. At times, D.B. dealt drugs from DO’s apartment. In that setting, DO relied on D.B. for crack for free (i.e., without having to pay for it monetarily).

[6] D.B. denies that he sexually assaulted any of the women. He maintains that any sexual activity in which he engaged with the women was at all times consensual; he includes sexual encounters that involved choking. D.B. also denies uttering threats.

The Evidence

[7] Each of the complainants gave evidence at trial. The other witnesses called by the Crown were Cst. Marc Denis and Det. Nguyen (both with respect to EI and 2005), Tracie Parr (the registered nurse by whom EI was seen in October 2017), and Detectives Helen Grus and Theresa Kelm (two investigating officers from the OPS).

[8] D.B. chose to testify in defence of the charges against him. The only other witness called by Defence Counsel was Catherine Salter. Ms. Salter has been a friend of D.B.’s for many years.

[9] An Agreed Statement of Facts was filed. It addresses a DNA sample taken in October 2017 from EI’s clothing and an attendance by KA at the office of her family physician in September 2016.

[10] In September 2019, a count-to-count similar fact evidence application made by the Crown was granted in part. For the oral reasons given, I made the following ruling: “The evidence of KJ, KA, and EI is admissible on a count-to-count basis with respect only to the 2016 and 2017 incidents described, in support of the inference that D.B. has a propensity to sexually assault women who are drawn to him, and therefore accessible to him, as a result of their respective dependency on crack cocaine” (“the SFE ruling”).

[11] Before reviewing the evidence, I address the framework for the court’s determination on the charges D.B. is facing.

Analytical Framework

[12] D.B. is presumed to be innocent of all of the charges against him.

[13] It is not incumbent upon an individual charged with an offence to assert their innocence through either their own evidence or other evidence called on their behalf. D.B. had the right not to call any evidence. He chose to testify and call other evidence.

[14] For a finding of guilt to be made, the Crown must prove the specific charge beyond a reasonable doubt. That is a heavy burden to be met. It is intended as such to prevent the conviction of innocent persons.

[15] It is not sufficient for the Crown to establish possible, probable, or likely guilt. A reasonable doubt is neither far-fetched nor frivolous. Reasonable doubt does not involve proof to an absolute certainty or proof beyond any reasonable doubt, which is often impossible: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 231. The standard of beyond a reasonable doubt is, however, much closer to a certainty than it is to the civil balance of probabilities standard. In summary, for a finding of guilt to be made, the court must be sure that the offence was committed.

[16] The court is entitled to believe all, none, or some of a witness’ testimony: R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at pp. 836-837. The court must carefully consider the credibility and reliability of a witness’ testimony, in light of all of the evidence before it. Credibility relates to the witness’ veracity; reliability addresses the accuracy of the witness’ testimony.

[17] I have considered the credibility and reliability of the testimony of each of the witnesses. My assessment of credibility and reliability takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years ago.

[18] I am mindful of inconsistencies and contradictions in the testimony of any witness. However, perfection in the testimony of witnesses is not expected and may be suspect.

[19] Consistency is an element of truthful testimony. Minor inconsistencies are also an element of truthful testimony.

[20] Contradictions within a witness’ testimony and those demonstrated through consideration of the witness’ prior accounts of events are important considerations. A meaningful tool in assessing the reliability of an individual’s testimony is to review the consistency of that person’s account, either over time or within the context of their evidence in chief and in cross-examination: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 12, citing R. v. G.(M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390.

[21] Significant inconsistencies or contradictions are treated much differently than are minor ones. They can, in some circumstances, result in a witness’ testimony being rejected in whole or in part. For example, an inconsistency which involves “something material about which an honest witness is unlikely to be mistaken, { } may demonstrate a carelessness with the truth about which the trier of fact should be concerned”: A.M., at para. 13, citing G.(M.), at p. 354.

[22] An inconsistency that relates to a peripheral issue may not have a significant impact on the witness’ credibility. If, however, the witness’ account contains many inconsistencies on a range of peripheral issues, such inconsistencies could fatally undermine the overall reliability of the witness’ evidence.

[23] If the witness’ testimony is internally contradictory, incoherent or simply implausible it is open to the court to find that the witness is not worthy of belief on specific topics or more generally.

[24] D.B.’s denial of the alleged events does not give rise to a duty upon the court to decide whether his or the complainants’ respective accounts of events is the most truthful, plausible, and accurate. The outcome in this matter is not determined on the basis of a credibility contest between D.B. and the witnesses called by the Crown.

[25] With D.B. having testified, the outcome in this case is determined on the following basis:

• If D.B.’s denial is believed, he must be acquitted;

• If I do not believe D.B.’s evidence, but his evidence leaves me with a reasonable doubt, he must be acquitted; and

• Even if I am not left in doubt by D.B.’s evidence, only if the evidence I accept is sufficient to establish D.B.’s guilt beyond a reasonable doubt is a finding of guilt made: R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at p. 758.

[26] I recognize that the potential exists for D.B. to be acquitted on some of the charges and found guilty on one or more of the other charges.

[27] In closing, Defence Counsel did not submit that D.B. should be acquitted on the basis of the first part of the three-part W.(D.) analysis. Defence Counsel asked the court to acquit D.B. on all charges based on either the second or the third part of the W.(D.) analysis.

[28] The Crown submits that the outcome turns solely on the third part of that analysis. The Crown asks the court to convict D.B. on all but three of the counts (count nos. 3, 5 and 6).

[29] It is not necessary for the court to review the first part of W.(D.) in any detail. When reviewing the evidence, I consider the second part and, where necessary, third part of W.(D.) to determine the outcome in this matter.

[30] Before turning to the evidence, I will review the elements of the offences with which D.B. is charged.

The Offence of Sexual Assault (s. 271(1))

[31] Section 271 of the Criminal Code does not define sexual assault. In their recent decision in R. v. R.V., 2021 SCC 10, 402 C.C.C. (3d) 295, at para. 51, the Supreme Court of Canada stated that a person commits sexual assault “by applying force intentionally to another person, directly or indirectly, in circumstances of a sexual nature”. The application of force can mean any form of touching: R.V., at para. 52.

[32] Sexual assault is a physical assault of a sexual nature. Whether the assault is sexual in nature is determined based on an objective standard – not on the subjective perspective of the accused. The nature and quality of the act is to be examined objectively: R. v. Marshall, 2017 ONCA 801, at para. 52.

[33] The question of whether the touching was of a sexual nature and violated the complainant’s sexual integrity is answered by looking at all of the circumstances surrounding the alleged assault: R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, at p. 345. At p. 302 of the decision in R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, McIntyre J. held that the factors to be considered in answering that question include,

• the part of the body that was touched;

• the nature of the contact;

• the situation in which it occurred;

• the words and gestures accompanying the act; and

• all other circumstances surrounding the conduct, including threats that may or may not be accompanied by force.

[34] In addition to establishing that the accused committed the act of sexual assault, the Crown must show that the accused intended to touch the complainant (the mens rea component of the offence): R. v. Ewanchuk, 1999 711 (SCC), [1999 1 S.C.R. 330, at para. 41; R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at para. 74.

Choking to Enable Sexual Assault (s. 246(a))

[35] Section 246 deals with means used to overcome resistance and provides as follows:

Every one who, with intent to enable or assist himself or another person to commit an indictable offence, (a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance … is guilty of an indictable offence”.

[36] The offence is made out if it is established beyond a reasonable doubt that the accused did any of the acts described for a purpose identified therein.

Sexual Assault Causing Bodily Harm (s. 272(2))

[37] Section 272(2)(c) provides that “[e]very person commits an offence who, in committing a sexual assault, … causes bodily harm to the complainant”. Bodily harm can include both physical and psychological harm: R. v. Bernard (1985), 1985 3558 (ON CA), 18 C.C.C. (3d) 574 (Ont. C.A.).

Aggravated Sexual Assault (s. 273(2))

[38] Pursuant to s. 273(1), “[e]very person commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.” Section 273(2) identifies that the commission of aggravated sexual assault is an indictable offence and prescribes the sentences to be imposed depending on the nature of the aggravated assault.

Uttering Threats (s. 264.1(1))

[39] Section 264.1(1) sets out the offence of uttering a threat:

Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

[40] There is both an actus reus element and a mens rea element to this offence. The actus reus is made out if a reasonable person in the circumstances in which the words were uttered would have perceived those words to be a threat of the types of harm listed above. The words uttered will be considered objectively in the context or circumstances in which they were spoken. The test is whether the words used would convey a threat of harm to a reasonable person. The pre-utterance conduct of the accused is relevant to whether the complainant’s fear of harm is reasonable.

[41] The mens rea element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove that the accused intended to carry out the threat: R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at para. 18.

D.B.’s Evidence

[42] Defence Counsel acknowledges that there are credibility and reliability issues with D.B.’s evidence. With respect to the latter, for example, Defence Counsel points to D.B.’s heavy drug use during the relevant years.

[43] With respect to D.B.’s credibility, there can be no denying D.B.’s extensive criminal record. That record includes more than 40 convictions related to breaches of court orders. Defence Counsel asks the court to consider that those convictions stem from a life of addiction; they are said not to reflect an individual who chronically disrespects the justice system.

[44] Defence Counsel asks the court to conclude that some of the evidence of other witnesses is “potentially corroborative” of aspects of D.B.’s evidence. Defence Counsel includes in that category some of the evidence of the complainants.

[45] With respect to the second part of the W.(D.) analysis, I find that D.B.’s evidence does not leave me with a reasonable doubt. I deal first with general concerns about D.B.’s credibility and reliability.

[46] D.B. commenced his testimony in September 2019 and concluded it early 2021. There were breaks in his testimony from September 2019 to the first quarter of 2020, and again from the first quarter of 2020 to January 2021.

[47] The majority of D.B.’s evidence was given in September 2019, January 2020, and March 2020. The delay of the trial from 2019 to 2020 was due to the fact that D.B. dismissed his former counsel (for the first of two times) in September 2019. The further delay from 2020 to 2021 was due to the suspension of court operations because of Covid-19. Some of the delay was also caused by the time understandably required for Defence Counsel to become familiar with the file, once retained.

[48] In 2019, while represented at trial by his former counsel, D.B. waived his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms to a trial within a reasonable time.

[49] Approximately two years passed between the date on which this trial commenced and the date on which D.B. completed his testimony. When D.B. testified it was more than 14 years since the first of the sexual assaults specifically identified by the complainants is alleged to have occurred. It was approximately two or three years since the other sexual assaults specifically identified are alleged to have occurred and between two and 18 years since the sexual assaults described by DO are alleged to have commenced.

[50] There is no reason for the delays described above to have an impact on the court’s approach to the assessment of D.B. as a witness. The passage of time does not change the truth.

[51] D.B., on the other hand, allowed the passage of time to have an impact on how he gave evidence. At times, and specifically during cross-examination, D.B. was pre-occupied with potential inconsistencies in his testimony. For example, D.B. expressed concern about the potential to give inconsistent answers with respect to the following subjects:

• The point in time during 2016, that KA became angry and ceased communicating with D.B.;

• What method of communication KA used in 2016 to accuse D.B. of having HIV – in-person, text, or another method; and

• How D.B. learned in the fall of 2016 that KA was angry with him.

[52] The extent to which D.B. was pre-occupied with both the potential to give and the significance of inconsistent answers is demonstrated by his responses with respect to (a) when, prior to being arrested in October 2017, he last spoke with KJ, and (b) the months in early 2017 during which he was incarcerated.

[53] I deal first with D.B.’s final conversation with KJ before his arrest in October 2017 on the first of these charges. The following questions and answers are from pp. 20 and 21 of the transcript of D.B.’s evidence on January 7, 2021 in cross-examination:

Q. Regarding [KJ]. Is it accurate to say that the last time you talked with her was around the end of September 2017.

A. Well I would – I would like maybe to explain a few things that are problematic for me. I just want to say that my memory when you give – when you give evidence on different days that are quite far apart. You know when – when the days aren’t one after another. When they’re not consecutive. So sometimes I – I would [Indiscernible] but I have a lot of problems with responding directly to some of the questions asked of me. Because it’s been like sixteen months of this. And as I said everything was – well like, the dates were separated. In time. For many different reasons. So, just that, like, maybe can – maybe can not be clear because I’m having difficulty responding – when responding about questions about the past. Without familiarizing myself with the transcript.

Q. Let’s just focus on one question at a time though, D.B.

A. Yes.

Q. And you’ve always understood the importance of telling the truth when you testify, right?

A. Yes. That’s why I’m trying to explain in greater detail why it’s hard for me to answer directly. To answer a question directly when perhaps the answer will be contradictory with another answer. Maybe by just one word.

Q. So, if the truthful answer is that you don’t recall then that’s the answer you’re supposed to give, right?

A. Yes, thank you.

Q. That’s – that’s not new to you though, you’ve known that that’s an acceptable answer, “I don’t recall.”

A. Yes, thank you. That’s the answer that I wanted to hear. That is the answer I will give then when I’m not certain.

Q. But you’ve – you know – you knew that already though, didn’t you? That if you’re not sure you can say you’re not sure

A. Yes, I said, three, four, maybe five times that I’m not sure. On certain questions. But he has continued to ask me the same question.

Q. And your duty is to give a truthful answer, right?

A. Yes.

Q. And the truth does not depend on what you said earlier about something.

A. Well if he asks me a question that reflects on my evidence before, then I’m not sure.

Q. Do you – I’m – I’m suggesting to you, and just give us your truthful answer.

A. Yes.

Q. The last time you talked with [KJ] was around the end of September 2017.

A. Yes, that’s it.

Q. And the reason for that is because it was at that time that your phone stopped receiving calls, right? To that number.

A. Well yes, it was from the moment I was arrested. A week before.

[54] I turn next to D.B.’s evidence when cross-examined about his period of incarceration in early 2017. By the time D.B. was cross-examined on this point, his criminal record had been entered as an exhibit. In addition, his former counsel had, as part of examination-in-chief, taken D.B. through his criminal record and the early 2017 incarceration.

[55] The following extract is from p. 59 of the transcript of D.B.’s evidence on March 10, 2020:

Q. Now, then we go to January 2017, D.B., and we’ve heard that you were in custody between sort of January, February, March 2017 and released in early April 2017, correct?

A. January 4th to I think it’s April 4th. I’m not too sure. Again, that’s – you probably have that. I give Mr. Guertin some, some entry and release and the date more accurate.

Q. Sure, I mean – but that’s approximate. Approximately early January to approximately early April, that’s correct.

A. I don’t know, sir, I don’t want to – this is my problem right now. When I come up with a certain time precise and I’ll get shaken and maybe my credibilities get put to the test all the time, so I prefer me approximate. It was – it was first week of January because my birthday is January 1st and whatever in April. I think it was the last when I got released.

[56] D.B. was this pre-occupied about potential inconsistencies, despite understanding that it was acceptable for him to respond with “I’m not sure” if that was his truthful answer. He was also aware that he should not guess at an answer. Last, he knew that he could ask for clarification of a question if he did not understand its meaning.

[57] I classify D.B.’s pre-occupation with inconsistencies as part of his demeanour while testifying. I appreciate that caution is to be exercised when considering demeanour evidence: R. v. MM, 2016 ONSC 5027; and R. v. D.M., 2016 ONSC 7224. However, as Roger J. noted in R. v. Lennox, 2019 ONSC 5703, at para. 16, “demeanour evidence is not irrelevant, and the way that a witness testifies, such as unanswered questions, challenging counsel, and run-on and unresponsive answers, may also be prudently considered by judges in their assessment of witnesses in conjunction with their assessment of all the evidence”.

[58] I find that there was a difference between the character of D.B.’s testimony in examination in chief and that of his testimony during cross-examination. D.B. was generally direct and substantively responsive to questions posed by his former counsel. By contrast, D.B. was frequently non-responsive when cross-examined. D.B.’s answers in cross-examination were, at times, rambling or equivocal and sometimes both.

[59] There are two specific areas of concern with D.B.’s testimony which, although not related to the substance of the allegations, cause me concern as to his credibility. The first area is D.B.’s evidence with respect to his family members. The fourth question posed of D.B. in examination in chief was: “Is your family still around?” D.B. responded with, “No, they all pass away.” He continued by confirming that his three sisters, two brothers, mother and father were all deceased.

[60] During cross-examination, D.B. twice referred to the death of his mother, and the date of her death, as something about which he could be certain.

[61] First, at p. 88 of the March 2, 2020 transcript, D.B.’s response in cross-examination with respect to negotiating with EI on October 10, 2017 included the following: “A lot of – a lot of little things are hard to remember three or four years after that; especially, if they were not really big. If my mom died, I could tell you which year she died, and which – which – which date. About negotiating with mis (ph) – [EI], I’m not sure, sir.”

[62] Second, I refer to p. 24 of the March 10, 2020 transcript. D.B. said, “My mom die a certain day at a certain year, my dad die a certain year, a certain month, so I remember those things 100 percent sure. I remember certain things like that.”

[63] Later in cross-examination, D.B. testified that he has a sister, still alive, who works for the Federal Government. When presented with his inconsistent prior testimony, D.B. denied that his evidence in examination in chief had been false; stated that he had no reason to lie about the subject; and referred to his earlier evidence as a “mistake”.

[64] At para. 13 of their decision in A.M., the Court of Appeal for Ontario highlighted that an inconsistency on a material point, and about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

[65] The death of a family member is not something about which a witness who is trying to be truthful would make an error. I find that D.B.’s error in that regard is indicative of a lack of regard for the truth. Once again, although related to a peripheral matter, that error impacts negatively on my overall assessment of D.B.’s evidence and credibility.

[66] The second specific area of concern arises from D.B.’s evidence with respect to his decision to proceed with the trial on these charges in English. It was not until January 2021, when represented by Defence Counsel, that D.B. testified with an interpreter.

[67] When cross-examined with respect to his choice to proceed to trial in English, D.B.,

• acknowledged that his three most recent counsel, including both counsel in this matter and his counsel at trial in April 2017 on other charges, are Anglophone;

• testified that he was pretty sure that he had not, in this proceeding, ever been offered the choice of proceeding in English or French; and

• maintained that, in his 30 years of involvement in the criminal justice system, he had never been offered a choice of proceeding in English or French.

[68] To address D.B.’s evidence in that regard, the Crown played the audio recording from D.B.’s first appearance before a Justice of the Peace in October 2017 – following D.B.’s arrest in relation to the alleged sexual assaults against EI in 2005 and 2017. It is clear from the recording that the Justice of the Peace asked D.B. whether he wanted to proceed in French or English. D.B. responded, “English”.

[69] Even after hearing that recording, D.B. maintained that he did not “remember ever being asked clearly if [he] wanted to choose between French and English”. He did, however, ultimately agree that he had been given a choice of language in October 2017.

[70] I find D.B.’s testimony with respect to choice of language to be self-serving. Given the extent of D.B.’s involvement in the criminal justice system, it was nothing short of preposterous to suggest that he had never been given that choice. This aspect of D.B.’s testimony negatively impacts my overall assessment of him as a witness.

[71] I turn to a broader and significant concern with respect to D.B.’s testimony – his blanket denial of ever having non-consensual sexual encounters with any one of the four complainants. I find that D.B.’s evidence demonstrates a misapprehension on his part as to what was required from each complainant for consent to a sexual activity including, where relevant, choking.

[72] As a result, even if D.B.’s evidence with respect to consent, including the use of choking, is believed – which it is not – that evidence, discussed later in these reasons, does not support a defence to the charges arising from each of the alleged sexual assaults.

[73] In R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, the Court reviewed the requirements for consent. That review starts with reference to s. 273.1(1) of the Code. “Consent” is therein defined as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Citing Ewanchuk, at paras. 26 and 36, the Court emphasized that the freely given consent “must exist at the time the sexual activity in question occurs”: Barton, at para. 88.

[74] The Court continued, at para. 89, by emphasizing that, for the purpose of the actus reus, “the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant.” Also, at para. 89, the Court said:

Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent – plain and simple [Citation Omitted.] At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established. [Citation omitted.]

[75] In summary, there must be evidence of a concrete agreement to the specific activity at the time of the specific activity.

[76] I find that D.B.’s evidence does not support a finding that any one of the complainants consented by way of a concrete agreement to the sexual activity giving rise to the charges including, where relevant, the use of choking.

[77] At paras. 92 and 93 of Barton, Moldaver J. refined the defence of consent to that of “honest but mistaken belief in communicated consent.” As a result of this refinement, an accused cannot rely on prior sexual activities with a complainant in support of a belief in consent. Even prior negotiations between an accused and the complainant are irrelevant. “[A] belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact”: at para. 93.

[78] In addition, “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence”: Ewanchuk, at p. 356.

[79] I find that D.B.’s evidence does not support a finding that he had an honest but mistaken belief that any one of the complainants consented to the sexual activities including, where relevant, the use of choking.

[80] I turn next to D.B.’s criminal record. Defence Counsel acknowledges that D.B. has an extensive criminal record, including more than 40 convictions for breach of a court order in one form or another. Defence Counsel asks the court to conclude that the record, including those convictions, is driven by D.B.’s addiction and not by disrespect for the administration of justice. I am unable to reach that conclusion.

[81] D.B.’s record is prolific. It spans more than 30 years. It demonstrates continuous criminality, save and except where interrupted by periods of incarceration. The most recent conviction on D.B.’s record, filed as an exhibit, was in April 2017 for failure to comply with the conditions of an undertaking.

[82] The duration, nature, and recency of D.B.’s record – including because of the number of convictions related to disregarding court orders – are relevant considerations when assessing D.B. as a witness: R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at paras. 53-57.

[83] I find that the more-than-40 convictions for breach of a court order have a direct bearing on D.B.’s credibility: “their nature, number and close proximity [paint] a picture of an individual who [has] little regard for the rules of society and, in particular, an individual who has little or no respect for the administration of justice”: R. v. Gayle (2001), 2001 4447 (ON CA), 54 O.R. (3d) 36 (C.A.), at para. 81, leave ref’d [2001] S.C.C.A. No. 359.

[84] I also have specific concerns about D.B.’s evidence in relation to each of the four complainants and the incidents which form the bases for the charges against D.B. Those specific concerns are addressed in other sections of these reasons.

[85] Turning to D.B.’s evidence with respect to his sexual preferences and conduct when engaged in sexual activity, I note the following:

• Each of the four complainants alleges that at one time or another during an alleged sexual assault, D.B. grabbed their hair. In cross, D.B. acknowledged that he liked to hold onto women’s hair if they have long hair and it is in the way, including that he liked to pull on their hair; and

• Each of the four complainants alleges that during one or more of the sexual assaults they endured, they were choked by D.B. He acknowledged that he engaged in choking women during sex. D.B.’s evidence as to the frequency with which he engaged in choking is inconsistent. In cross, he testified that it “rarely happened”. I contrast that evidence with D.B.’s testimony on another occasion in cross that he had engaged in choking 40 to 50 times.

[86] I next consider the submissions made by Defence Counsel with respect to the impact of the complainants’ respective drug use on their credibility and reliability.

Drug Use and Credibility / Reliability

[87] It is undisputed that D.B. was a source of crack for each of the complainants. Each of them admits to being addicted to and a user of crack at the time or times of their respective involvement with D.B. For each of the complainants, their addiction spanned a number of years.

[88] Defence Counsel asks the court to conclude that, for each complainant, their addiction, the extent of their drug use generally, and their drug use at the time or times of the alleged sexual assaults negatively impact on the reliability of the complainant. In support of that request, Defence Counsel relies on the evidence of the complainants as to their respective drug use – both generally and on the date of the alleged sexual assault or assaults.

[89] For the following reasons, I am unable to reach the conclusion requested with respect to the complainants’ drug use. First, no expert evidence was called on behalf of D.B. with respect to a person’s ability to perceive and remember events that occurred while the person was under the influence of drugs. The court is not in a position to take judicial notice on this point.

[90] Second, for all of the complainants, other than DO, their respective evidence does not support a conclusion that either their perception or memory of the alleged sexual assaults was impaired because of either (a) the nature and extent of their addiction, or (b) their drug use on the date(s) of the alleged sexual assault(s).

[91] With respect to each of EI, KA and KJ, to reach the conclusion requested would require the court to engage in “speculative reasoning that invokes ‘common-sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice”: R. v. JC, 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 58.

[92] For example, KJ’s evidence is that on the date of the alleged sexual assault she had not taken any drugs prior to D.B.’s arrival at her apartment.

[93] As another example, KA’s evidence is that by the time D.B. arrived at DO’s apartment (where the sexual assault allegedly occurred), KA had come down from the crack she had shared with DO several hours earlier. KA’s evidence is that she was not impaired by drug use at the time of the alleged sexual assault. It is also KA’s evidence that in the years during which she used crack, she never had an experience in which she suffered memory loss or got so high that she could not remember what she had done.

[94] D.B.’s evidence is that from a tenth of a gram of crack, a person would remain high for between 15 seconds and 1.5 minutes. It is also D.B.’s evidence that when using, a drug addict remains generally aware of what is going on around them.

[95] There is evidence from at least two of the complainants (EI and KJ) that their drug use affected their perception of dates, times, and chronological order. They deny that their drug use affected their perception of events as they were transpiring. Their evidence in that regard is consistent with D.B.’s evidence as to the potential impact of drug use on an individual’s sense of time.

[96] In summary, my assessment of the credibility and reliability, generally, of the complainants, other than DO, is not negatively affected by their respective drug use. The impact of DO’s drug use on DO’s memory is discussed when I deal with count nos. 5 to 9.

The Evidence

[97] The events giving rise to the charges span the years 2001 to 2017. I start with EI, followed by KA and then KJ. I conclude with DO.

a) EI

[98] D.B. is charged with sexual assault in relation to events that occurred on May 1, 2005.

[99] D.B. is also charged with three offences in relation to events that occurred on October 10, 2017. The Crown invites an acquittal on the charge of uttering threats in relation to October 10, 2017. The Crown is pursuing a conviction on the charges of sexual assault and choking to enable sexual assault. Those charges fall within the scope of the SFE Ruling; the 2005 events do not fall within the scope of that ruling.

• May 1, 2005 – Count No. 1 (s. 271)

▪ EI’s Evidence

[100] It is not in dispute that on the night of April 30, 2005 into May 1, 2005, EI and D.B. were together in his room at a rooming house on Bay Street, in the City of Ottawa. EI and D.B. diverge, however, on the nature of their relationship at that time, the basis upon which EI was staying with D.B., and why she left the rooming house on the morning of May 1, 2005.

[101] EI acknowledges that her addiction to crack began before 2005. Her criminal record includes 10 convictions dating from 1995 to 2014. There are two convictions on “false pretenses” in 2005. There are four convictions for breaches of court orders, including failures to appear. The most recent conviction was in 2014 for theft under $5,000. There is an eight-year gap (back to 2006) between the most recent and preceding convictions.

[102] EI’s evidence is that in the spring of 2005, she was enrolled in an aesthetician course. She was unable to complete the course because she suffered a relapse of her addiction.

[103] During that relapse and in the two weeks prior to May 1, 2005, EI encountered D.B. while she was “working the streets”. EI describes that D.B. was taking her money and providing her with crack.

[104] In cross-examination, EI testified that she was staying with D.B. for approximately two weeks. Her evidence is that, during that time, she would turn tricks in D.B.’s room. She paid for her drugs with the money from those encounters.

[105] EI described a scenario in which D.B. would enter his room, tell EI’s customer that he was EI’s boyfriend, and rob the customer. In cross-examination, EI denied being in “cahoots” with D.B. in that regard. She acknowledged, however, that she acted on D.B.’s instructions to make sure that her customers’ pants were down – so as to give D.B. time to take the customer’s money. EI ultimately acknowledged that she was complicit in these robberies and that she accepts her responsibility in that regard.

[106] Defence Counsel points to this aspect of EI’s evidence as a negative factor in the assessment of EI’s credibility generally.

[107] I find that the suggested negative view of this aspect of EI’s testimony fails to take into consideration EI’s candour with respect to how she was earning a living at the time, the existence of the robbery scheme, and her involvement in it. This suggested negative view also overlooks the tone of the questions initially posed in cross-examination. I find that those questions have the potential to imply that the robbery scenario was something that would happen every time EI brought a customer to D.B.’s room. EI’s denial could reflect that context, as opposed to an absolute denial of any involvement on her part in the robbery scenario.

[108] I turn, then, to the events of May 1, 2005. EI described that she and D.B. began with consensual intercourse. During intercourse, when D.B. was on top of EI, he put both of his hands around her throat. EI described being choked to the point of almost losing consciousness. D.B. applied “quite a bit” of force; EI thought she was dying. The force used was “very strong”. EI was unable to speak while being choked. EI has a vivid recollection of this event, including a foul body odour from D.B.

[109] Prior to the choking, there was no conversation between EI and D.B. about whether or not he would choke her. After D.B. released his hands from EI’s neck he said, “A little bit more and [you] wouldn’t have woken up.”

[110] Once D.B. released his hands from EI’s neck, EI left the room, went to the bathroom, collected her things, and left the rooming house. After doing so she realized that she left her aesthetician’s case (worth approximately $500) in D.B.’s room. She called the police because she wanted to retrieve the aesthetician case.

[111] D.B. would not return EI’s belongings and she made no attempt to retrieve them before calling the police.

[112] The police arrived within 30 minutes to an hour after EI left the rooming house. EI’s evidence in that regard is in keeping with the evidence of one of the two OPS officers who attended – he was in the neighbourhood as part of his regular patrol of the area.

[113] EI’s evidence is that she did not contact the police very often in 2005. She was not inclined to call the police for several reasons. Those reasons included her prior experiences with the police – she did not believe in the police. Her evidence in that regard is in keeping with the evidence of other witnesses at trial. For example, KA testified that her anecdotal experience was that individuals in what she referred to as “the drug world” are not inclined to get the police involved in matters or turn to the police.

[114] EI’s evidence as to her interaction with Cst. Denis is consistent with his evidence in terms of his observations and inquiry about something else going on.

[115] EI did not tell and did not want to tell the police about the choking. EI identified five reasons why she did not tell the police about the choking: (a) she was not a rat back then, (b) she understood snitches would die on the street, (c) she was afraid of D.B. and his associates, (d) she just wanted her things and to be able to leave; and (e) she did not want to get lost in the system again.

[116] Once the police retrieved her aesthetician case, EI travelled to and remained in Cumberland. She found that she was unable to eat because she was unable to swallow. She had bruising to her neck. She did not seek medical attention.

[117] It was not until after the events of October 10, 2017 that EI disclosed to the police the events of May 1, 2005. EI’s explanation for the timing of her disclosure of the 2005 events includes that she began to experience flashbacks to 2005 when seeing a therapist in Kingston.

▪ D.B.’s Evidence

[118] D.B.’s evidence is that in the spring of 2005, EI asked him for a place to live. His evidence as to the nature of their relationship at that time is that he agreed to help EI by providing her with a letter in support of her entitlement to social assistance. He also agreed to let her stay with him in exchange for which he expected her to contribute to the rent for his room.

[119] D.B.’s evidence as to why EI left on the morning of May 1, 2005 is essentially that he asked her to leave because she failed to pay him her share of the rent for his room. D.B. testified that upon receiving a social assistance cheque, EI spent the money on crack and was not at the rooming house for three days. D.B.’s evidence is that when EI returned to the rooming house, they had an argument, and he asked her to leave.

[120] D.B. acknowledges that his memory of the events in 2005 is vague: “Lived at my house for a couple of weeks or a couple of days. It’s very vague. She didn’t come up with whatever she was supposed to pay the rent very vague, and then she left very vague again.”

[121] D.B.’s evidence is that he is uncertain whether he had a sexual relationship with EI at that time (but he admits it’s possible that he did). Despite his memory being “very vague”, D.B. is certain that he did not choke EI in 2005. In that regard his evidence is as follows:

• D.B. is uncertain when he developed the choking fetish. He attributes the fetish to a woman whom he saw for several months who was good at role-playing. D.B. estimated that he developed the fetish in the latter half of 2010; he also estimated that he developed the fetish in the last eight or ten years (2010 – 2012, based on date of testimony);

• His “little bit of a fetish – to ask” for choking did not exist in 2005;

• He does not think it was possible that he engaged in choking in 2005; and

• He admits to placing his arm, in a “V”-position around women’s necks during sexual encounters – as many as 40 or 50 times – but denies applying pressure or applying force in such a way as to deprive the women of air.

[122] D.B.’s evidence is that his nephew was staying with him for a few weeks in April and May 2005 – including overnight on April 30, 2005. The police observed the nephew in D.B.’s room when they entered to retrieve EI’s belongings. The nephew’s presence in the room by the time the police arrived does not negate the possibility that there were periods of time overnight, at a minimum, during which the nephew was not in the room.

[123] In any event, D.B. sharing his room with his nephew for several weeks is inconsistent with D.B.’s evidence of an arrangement whereby he was sharing the room with EI.

▪ Findings on Count No. 1

[124] D.B.’s evidence with respect to May 1, 2005 does not leave me with reasonable doubt. I accept EI’s evidence and find that the Crown has established, beyond a reasonable doubt, that D.B. (a) sexually assaulted EI on May 1, 2005, and (b) did not obtain EI’s consent to the choking on that date.

[125] The bases for the conviction on count no. 1 include the following:

• EI was frank about her personal history and criminal record. She did not attempt to falsely portray who she was at the time;

• EI acknowledged her role in the scheme concocted by D.B. to rob EI’s clients;

• EI’s account of the assault is detailed;

• In both chief and cross, EI was responsive to questions. Her manner of testifying did not change depending on who was posing the questions;

• EI’s evidence as to her level of distress on the morning of May 1, 2005 is corroborated by Cst. Denis. The officer’s evidence that he did not observe any injuries is not directly contradictory to EI’s alleged injuries; Cst. Denis acknowledged that he did not check for injuries;

• In terms of EI’s post-assault narrative and logical cogency, the decision not to report the sexual assault at the time is in keeping with EI’s personal history and circumstances as of May 1, 2005;

• EI had nothing to gain from reporting the May 1, 2005 sexual assault some 12.5 years later. It lends credibility to her description of the 2005 sexual assault that it is not identical to the sexual assault that she alleges occurred on October 10, 2017;

• D.B.’s evidence as to the benevolent nature of his relationship with EI is in stark contrast to much of his other more general evidence about his relationship with women over the years. A theme throughout much of that evidence is the tie between D.B.’s role as a crack dealer and his ability to rely on that role in exchange for sexual encounters;

• D.B.’s evidence as to the benevolent nature of his relationship with EI is also in contrast to his evidence in cross about how vague his memory is of his relationship with EI at that time;

• Also troubling about D.B.’s evidence as to the nature of his relationship with EI is his ability to recall specific details – like a letter in support of social assistance and EI liking Sunny Delight drinks – when contrasted with his repeated description of his memory of the period in and around May 1, 2005 as “vague” or “very vague”;

• There is inconsistency between D.B.’s evidence regarding his attempt to assist EI in finding City Housing and both (a) his decision to kick her out of the rooming house for failure to pay rent, and (b) his uncertainty as to whether, as of May 1, 2005, EI had been staying with him for two days or two weeks;

• There is also an inconsistency between D.B.’s uncertainty about whether EI had been staying with him for two days or two weeks and his evidence that he kicked her out when she did not return to the apartment for three days after receiving her social assistance cheque; and

• Last, D.B.’s evidence that he was sharing his room with his cousin is inconsistent with his evidence of an arrangement that required EI to pay rent because she was sharing a room with him.

[126] I turn next to the sexual assault which EI alleges occurred on October 10, 2017.

• October 10, 2017 – Count Nos. 2, 3 and 4 (ss. 246(a), 264.1(2), and 271(1))

▪ EI’s Evidence

[127] Both EI and D.B. describe meeting by chance on the morning of October 10, 2017, spending the day together, and ending up that evening at an apartment on Somerset Street. Their respective descriptions of how they spent their time together that day are, in large part, consistent with one another. To the extent that their evidence about their time together before arriving at the apartment differs – only differences that bear on my findings in this ruling are addressed.

[128] After May 1, 2005, EI did not see D.B. again until September 2017. Her evidence is that after a six-year period of sobriety in the intervening years, she experienced a relapse. By the latter half of 2017, she was once again using crack and struggling in her life.

[129] EI was panhandling on Bank Street, in Ottawa, in September 2017, when she again encountered D.B. She began to purchase crack from him. She estimated that in the weeks prior to October 10, 2017, she purchased crack from D.B. eight to ten times.

[130] At the same time, EI was living with her then boyfriend, J.T., on James Street. She left that residence in early October and found shelter at the Shepherds of Good Hope (“SGH”) on King Edward Avenue.

[131] On the morning of October 10, 2017, EI saw D.B. outside of the SGH building and began speaking with him. In summary, EI described the events of October 10, 2017 as follows.

[132] D.B. asks her to complete a delivery in the area for him, which she does. On her return to the SGH, D.B. asks EI if, in return for him giving her a 60-piece of crack, she will give him a blow job at the nearby home of someone he knew.

[133] EI accepts D.B.’s offer. In doing so, she does not expect that she will spend the day with him. Later that morning they go to the nearby home. D.B. gives EI a toke of crack that is less than a 60-piece. EI performs oral sex. After about five minutes, and without D.B. having ejaculated, the oral sex stops because he is concerned about children returning to the home.

[134] EI and D.B. remain together, travelling about the Byward Market, Vanier, and Centretown either on foot or by bus. As they do so, D.B. is dealing drugs. He provides EI with small doses of crack, in piecemeal fashion, throughout the day. For every toke that EI takes throughout the day, D.B. takes three tokes. By the evening, when they reach the Somerset Street apartment, EI has received a 60-piece worth of tokes.

[135] During the day there is one other location at which EI administers oral sex; in a basement apartment in Vanier. D.B. does not ejaculate on that occasion.

[136] When D.B. first proposes oral sex in exchange for a 60-piece of crack, he tells EI that he is not the same person that he was in 2005; he tells EI that he has changed. Believing that people are capable of change, EI takes D.B. at his word and believes that he is no longer aggressive. Throughout the day, EI finds that D.B. is completely different from how he was in 2005. She finds that he is laughing and joking; he is fine.

[137] By the evening hours, EI and D.B. make their way to the north end of Bank Street. At D.B.’s initiative they go to a Wind / Freedom Mobile Store, where D.B. addresses a problem he is having with his phone. They next go to a clothing store where D.B. purchases a black dress for EI and a pair of socks for himself.

[138] At D.B.’s initiative, they next go to a multi-storey apartment building on Somerset Street just west of Bank Street. The tenant is home and remains home while D.B. and EI are at the apartment.

[139] Shortly after they arrive at the apartment, D.B. asks EI to “finish off the blowjob”. EI begins to administer oral sex and, before D.B. ejaculates, she stops and tells D.B. that it is her turn to do a toke. At this point, D.B. falls asleep in a chair for about two hours. During this interval, EI does a couple of pushes on her crackpipe. EI describes herself as someone who does not talk much when she uses drugs. She has little conversation with the tenant while D.B. is asleep.

[140] When D.B. wakes up, EI is seated at one of the chairs at the table. D.B. approaches EI from behind and, with his right hand, grabs the back of her hair. EI thinks that D.B. is going to kiss her. Instead, D.B. spits down her throat and puts EI in what she describes as a “choke-hold”. D.B. wraps his left arm around her neck. EI is forced to the ground and lands on her stomach – on the floor of the apartment.

[141] D.B. hits EI with his right hand, which results in cutting her lip. D.B. keeps his left arm around EI’s neck and keeps her on the ground by positioning himself on top of EI.

[142] For three to four minutes, EI has difficulty breathing; she taps on D.B.’s left arm throughout, in the hope that he will release the pressure around her neck.

[143] EI tries to prevent D.B. from entering her by holding her legs and ankles tight together. She is unsuccessful. D.B. penetrates her vagina with his penis, eventually ejaculates, rolls off EI, and falls asleep. EI leaves the apartment a couple of hours later, after being asked by the tenant to leave.

[144] EI reports the incident to the police on October 13, 2017. From the Agreed Statement of Facts it is admitted that (a) the police seize the pants EI was wearing at the time of the incident, (b) a forensic analysis discloses semen on the interior crotch area of the pants, and (c) the semen is D.B.’s.

▪ D.B.’s Evidence

[145] In contrast to EI’s clear recollection that she had an agreement with D.B. to perform oral sex in exchange for a $60 piece of crack, D.B.’s evidence is replete with contradictions on that point. For example, in chief, D.B.’s evidence includes both (a) a denial of the existence of the specific agreement described by EI, and (b) that the purpose of going to the Somerset Street apartment was to get what he was “supposed to get” from EI.

[146] In cross, D.B. testified that (a) he and EI had an agreement for the exchange of crack for oral sex, (b) when at the SGH he offered EI a $40 or $50 piece of crack plus cash – perhaps $10 – in exchange for oral sex, and (c) there was no agreement that he would give EI crack for oral sex.

[147] D.B. gave contradictory answers as to whether EI performed oral sex at a third location during the day (near the Rideau River and Montreal Road).

[148] As to whose idea it was to have intercourse at the Somerset Street apartment, D.B. gave three different answers. In chief, his evidence was that he raised the possibility of intercourse, specifically because he had not climaxed during oral sex. He described asking EI if they could have intercourse and her consenting to the activity. In cross, D.B.’s evidence was that it was EI’s idea to have intercourse, in combination with an indication that he could not be sure who brought up the subject of intercourse. He acknowledged that, “It’s a little – it’s a little – it’s – it’s not really clear ... But it’s not clear, or if she offered to me if we – the way – the way we end up doing it, I cannot explain in detail … If it’s me asking her or asking me, or I’m not sure.”

[149] D.B.’s explanation for why the sexual activity was carried out on the floor of the apartment is that the tenant did not allow people in the bedroom because of prior damage. I contrast that evidence with the testimony of Det. Grus. She attended at the apartment on October 14, 2017. When she arrived, she observed two people exit the bedroom – neither of whom was the tenant.

[150] In chief, D.B. acknowledged that he placed an arm around EI’s neck during intercourse at the apartment. His purported reasons for doing so included (a) to prevent EI from sliding on the floor, and (b) as an element of submission in role-playing, a feature of the sexual activity that he was otherwise unable to explain.

[151] D.B.’s evidence in cross is that he must have had a conversation with EI about choking, because he did it. He was, however, uncertain about what conversation he had with EI before or during the sexual activity.

[152] Adding yet another layer of contradiction to D.B.’s evidence about choking EI on that occasion, and about choking generally, I point to the following series of questions and answers in cross:

Q. What is it about the choking that you enjoy?

A. I just see it on – on porn movie, and I seeing on other things. It’s a fetish.

Q. Your fetish though. A fetish that you enjoy?

A. Yeah.

Q. And I’m suggesting to you, you enjoy it because there is an element of control over the woman then, right?

A. I don’t – that’s what you’re saying. I don’t – I don’t – I don’t say it that way, but …

Q. How do you see it? Why do you like it?

A. Well, it was a turn on.

Q. Why?

A. I mean, maybe, like you said, maybe dominating the wo (ph) – woman, or maybe be the boss, or whatever.

Q. Okay. So that’s all I’m suggesting. So, you do agree with that?

A. Yeah.

[153] I also note that 2017 is at least five to seven years after one of the points in time by which D.B. estimated that he had developed a fetish for choking (between 2010 and 2012).

▪ Findings on Count Nos. 2, 3 and 4

[154] The Crown invites the court to acquit D.B. on count no. 3. The Crown submits that there is reasonable doubt that the specific words which EI recalls D.B. uttering during the sexual assault were intended as a threat. The alleged threat related to other men coming to the apartment to have their way with EI. I agree that the offence is not made out; D.B. is acquitted on count no. 3.

[155] D.B.’s evidence with respect to the events on October 10, 2017 does not leave me with reasonable doubt on count nos. 2 and 4. I accept EI’s evidence and find that the Crown has established, beyond a reasonable doubt, D.B.’s guilt on count nos. 2 and 4.

[156] Based on my general concerns about D.B.’s credibility, and the specific concerns discussed in this section of the reasons, I reject D.B.’s description of the sexual activity on the floor at the Somerset Street apartment. I reject any notion that he obtained EI’s consent to either the sexual activity or the choking. I find that D.B. used the choking in an effort to render EI incapable of resistance to the sexual assault.

[157] I prefer and accept EI’s evidence of the incident including that the sexual activity and the choking occurred without her consent. My reasons for accepting her evidence include the following:

• The arrival of EI and D.B. at the apartment building and trip in the elevator to the apartment can be seen on security video footage from the building (Exhibit 2). EI had not seen that footage prior to testifying. Her description of who they encountered on entering the building and what happened as they travelled in the elevator is consistent with the contents of that footage. That consistency speaks to the reliability of EI’s description of the events that occurred at the apartment building;

• EI’s memory of the events at the apartment building include vivid details from the sexual assault, such as her precise location on the floor of the apartment, her focus on the audible repetitive clicking sound from the tenant flicking his lighter, the telephone ringing, and specific words spoken by D.B. EI’s evidence about the assault it is not, as suggested by Defence Counsel, “murky”;

• There was no reason for EI to fabricate the presence of another person in the apartment – someone who could potentially be called as a witness;

• The injuries observed by Nurse Parr, who saw EI at the Ottawa Hospital on October 13, 2017, are consistent with the injuries that EI alleges she suffered as a result of the sexual assault; and

• EI gave a specific description of how she suffered the injury to her lip. Unprompted, she corrected D.B.’s former counsel when, in cross, he inaccurately recounted that description. I find that the injury was the result of the sexual assault and not, as suggested by the defence theory, the result of a burn from a crack pipe.

[158] I deal next with the allegation made by KA of being sexually assaulted, with choking, by D.B. on September 5, 2016.

b) KA

[159] The events giving rise to count nos. 12, 13 and 14 span 2016 and 2017. D.B. is charged in relation to a sexual assault, with choking, that is alleged to have occurred on September 5, 2016. Count nos. 12 and 13 relate to sexual assault with choking and fall within the scope of the SFE ruling.

[160] D.B. is also charged with uttering threats between April 1 and June 30, 2017.

• September 5, 2016 – Count Nos. 12 and 13 (ss. 272(2) and 246(a))

▪ KA’s Evidence

[161] KA alleges that she was sexually assaulted, with choking involved, by D.B. in the early morning hours on September 5, 2016, at DO’s apartment. D.B. denies having non-consensual sexual activity with KA at any time. He specifically denies that the incident described by KA occurred.

[162] By the late summer of 2016, KA’s life was in a downward spiral. A former teacher, KA was by then addicted to crack. She had fallen into what she described as the drug lifestyle and was living with her mother at the mother’s apartment.

[163] KA’s evidence is that in the summer of 2016 she was introduced to D.B. by one of her drug-user friends. KA began to purchase crack from D.B.; on occasion went with him to DO’s apartment; and knew DO in the context of their mutual use of drugs.

[164] KA testified that she found D.B. to be charming and interesting. Over the summer months they went out on a few dates. She denied “dating” D.B. KA’s evidence is that she had no illusions that she was the only woman with whom D.B. was sexually active. KA testified that the sexual activity she had with D.B. prior to September 5, 2016 was consensual.

[165] KA’s evidence is that her relationship with D.B. was centred around drugs; at times, they did drugs together.

[166] KA’s evidence is that the incident on September 5, 2016 occurred as follows. KA did not always like to use drugs on her own. In the early morning hours on September 5, 2016, she had been using drugs for several hours. She decided to go to DO’s apartment to share crack with DO.

[167] After sharing KA’s crack, the two women are sitting in DO’s bedroom talking. KA has, by this time, come down from the crack she smoked. D.B. enters the apartment, goes directly to the bedroom, grabs KA and places her in a headlock or chokehold, and drags her to the living room. There is no warning, including any verbal communication, from D.B. before he grabs KA and drags her to the living room.

[168] D.B. grabs KA’s hair and the left side of her neck with his left hand. At the same time, he pins KA’s face into the corner of the L-shaped couch, making it difficult for KA to breath and muffling KA’s pleas for D.B. to stop.

[169] KA is wearing a dress. D.B. pulls KA’s underwear down with his right hand. He sodomizes KA. She finds that the more she struggles, the more violent the incident becomes. KA recalls specifically some of the things that D.B. says during the incident. After KA gives up trying to resist, D.B. finishes the activity and abruptly leaves the apartment.

[170] After D.B. leaves, KA goes to the washroom. She discovers that she is bleeding from her rectum – a condition which continues for several days after the incident. KA observes semen mixed with the blood and concludes that D.B. ejaculated during the incident.

[171] KA remains briefly at DO’s apartment. The two women do not discuss the incident. KA is in a state of shock. She leaves the apartment and makes her way home. It is too painful for her to walk home. She has no money for a taxi and does not yet have the Uber app. She catches a bus home – having waited a long time for the bus because of Sunday service.

[172] For two reasons, KA does not initially report the incident. First, people involved in the drug lifestyle frown on involving the police in their affairs. KA’s evidence in that regard is consistent with the evidence of EI and D.B. With respect to the latter, D.B.’s evidence is that people smoking drugs don’t usually call the police.

[173] Second, KA is surprised by the violent nature of the incident and fearful of what D.B. might do if she reports the incident.

[174] Next in the chronology is KA’s attendance at the office of her family physician, Dr. Kilby. From the Agreed Statement of Facts, the evidence with respect to that attendance is as follows. KA attends the doctor’s office on September 15, 2016. She reports being sexually assaulted during the previous week but declines to be examined and does not discuss the details of the assault. At her request, she is tested for sexually transmitted diseases.

[175] The injuries which KA suffers as a result of the incident are a painful rectum, bleeding from the rectum, an inability to sit for several days, soreness in her shoulders (from being pressed to the couch), and a sore throat.

[176] KA does not communicate with the police until April 2017, when she sends a general email. In the intervening period, she begins to date J.S., whom she describes as a friend of D.B.’s. KA makes J.S. aware of her intention to report D.B. to the police; J.S. tries to talk her out of doing so.

[177] KA understands from J.S. that D.B. has put a “train-run” on her, with that term meaning arranging for KA to be gang-raped. The train-run is relevant to the charge of uttering threats and is addressed in the next section of these reasons.

[178] From the spring of 2017 to June 2018, KA vacillates about whether to proceed with a complaint to the OPS. In May 2017, after sending her initial email to the OPS, KA decides not to proceed with her complaint. After D.B. is arrested in October 2017, the OPS contact KA. She is still under the influence of J.S. and chooses not to proceed with the complaint. In November 2017, KA ends her relationship with J.S. She enters a rehabilitation program and becomes clean from drugs. In June 2018, KA decides to proceed with her complaint.

[179] KA’s cell phone records were a significant focus of cross-examination. The records identify a high volume of calls, at times, between KA’s cell phone and D.B.’s phone.

[180] KA’s explanation for the high volume of calls continuing between her phone and D.B.’s phone – specifically from April to October 2017 – includes the following. KA’s phone plan was paid for by her mother; the plan offered a significant amount of data and free long-distance calls. KA was generous in allowing others to use her phone. She was also without her phone for extended periods because J.S. or someone else had the phone. Both J.S. and the other individual knew and/or had reason to call D.B.; both individuals were part of the drug world.

[181] Defence Counsel asks the court to reject KA’s evidence with respect to the use of her phone in 2017 because it evolved as she continued to testify. Defence Counsel submits that the ‘evolution’ of KA’s evidence in that regard supports a conclusion that she was not being truthful.

[182] The Crown submits that KA’s evidence with respect to the use of her phone is explained by the fact that, prior to testifying at trial, KA had not been asked to consider the subject of her phone use. As a result, given more opportunity to think about her phone use, KA’s memory became more specific over time. I accept that explanation. I do so in part because of my overall impression of KA as a witness. I also do so because KA subsequently produced records from Bell with respect to the use (and theft) of her phone in 2017.

[183] KA’s evidence includes a description of the steps that she took in 2017 to address the excessive use on her phone and, in September 2017, to report her phone stolen. That evidence was given before KA obtained records from Bell in support of the timing and nature of her communication with Bell. I find that the Bell records are consistent with KA’s explanation as to who was using her phone from April to October 2017.

▪ D.B.’s Evidence

[184] D.B. testified that he took KA to DO’s apartment four times and took KA to another woman’s apartment once. His evidence is that each time he took KA to DO’s apartment, they engaged in sexual activity while there – including on the couch in the living room. His evidence is that DO remained in her bedroom, with her dog. She did so because that was where she was comfortable, and she had a television in the room.

[185] D.B. denies that the September 5, 2016 incident described by KA occurred. That denial is not, however, without some equivocation:

Q. So did you show up at [DO’s] place and find the two of them in [DO’s] bedroom together and you dragged [KA] out by the head in front of the couch and sexually assaulted her?

A. No, I never did that. I came to really – like I was saying earlier, it’s – I don’t get up on girl who try to stop or try to tell me to stop. I never get up on that. I never had – it never arouse me or anything like that. And even if it had – if I had at any time in my life ever maybe had, to talking like that, I’d be talking to the girl and making a business proposition with her. I did never – I never – I never and it never turned me on.

[186] D.B.’s equivocation, following an absolute denial, is yet another aspect of his testimony which contributes to my negative assessment of his credibility.

[187] Within a single series of questions in cross about what he recalled in terms of whether KA liked to be choked, D.B.’s responses included the following:

• He asked KA if he could choke and she said that she was not into it;

• He could not remember if he asked her whether he could choke; and

• He was not sure if she did not want to be choked.

[188] D.B.’s final response in that series was, “I believe, I’m pretty sure, if I remember clearly, she – she was not into it, and she said no.”

[189] D.B.’s evidence is that KA continued to be in touch with him by telephone and to purchase drugs from him in 2017. He testified that she continued to have contact with him from April 2017, after he was released from jail, to October 2017, when he was arrested.

[190] D.B. testified that KA came several times to the apartment on Bay Street in which he was living in the summer and fall of 2017. He testified that she did so on her own, with a female friend, and with J.S. The purpose of the visits to that apartment was to buy drugs.

[191] With respect to KA’s boyfriend, J.S., D.B. gave the following evidence. By 2016, D.B. had known J.S. for several years. He saw J.S. fairly frequently in 2016 and 2017. They were incarcerated together for four months, ending in 2017. D.B. acknowledged that, in the summer of 2017, he received telephone calls from and made calls to J.S.

[192] As to the possibility that he received telephone calls from KA after being released from jail in 2017, D.B.’s evidence was inconsistent. His responses ranged from estimating that 80 to 90 percent of the calls from KA’s phone were from her, to 70 per cent of such calls being from her and, ultimately, to a stated inability to provide a reliable estimate of that percentage.

[193] I reject D.B.’s testimony that he received calls from KA in the months from April to October 2017. My reasons for doing so include the following.

[194] First, in reflecting on why he made a mistake in chief when saying that all of his brothers and sisters had passed away, D.B. said: “I made it general. Sorry if I made it general.” D.B.’s approach to truth-telling, when it comes to something as simple as the number of his siblings who remain alive, causes me concern about his ability to be truthful about who was calling him in 2017 – let alone in terms of estimating a percentage of calls that he received from a specific individual.

[195] Second, I am also mindful of D.B.’s evidence about his historical relationship with J.S., J.S.’ activity as a drug dealer, and J.S. as a drug user. I find it far more plausible that the calls to and from KA’s phone were with J.S. and others than that they were with KA.

▪ Findings re Count Nos. 12 and 13

[196] I am satisfied beyond a reasonable doubt that on September 5, 2016, D.B. (a) sexually assaulted KA, and (b) used choking to enable the assault. I am also satisfied beyond a reasonable doubt that, in doing so, D.B. caused KA bodily harm (count nos. 12 and 13).

[197] I reject D.B.’s denial that the incident described by KA happened. I reject any notion that he obtained KA’s consent to the sexual activity, including choking. D.B.’s evidence does not leave me with reasonable doubt.

[198] For the following reasons, I accept KA’s evidence:

• I found KA to be an articulate, thoughtful witness;

• I found KA to be candid. She did not try to downplay the depths to which her life had spiralled in 2016 and 2017;

• KA was frank about the nature of her relationship with D.B.;

• KA’s evidence as to how she came to know DO is consistent with D.B.’s evidence on that point. KA’s evidence is also consistent with the evidence of both D.B. and DO that D.B. brought women to and had sexual activity with them at DO’s apartment;

• KA’s account of the sexual assault, including the choking, is detailed and cogent. She was not shaken on that account in cross;

• Turning to the narrative and logical cogency of KA’s post-assault conduct, I find that KA’s reluctance to involve the police in her life is in keeping with the evidence of others as to the reluctance of people in the drug world to communicate with the police;

• KA wavering about whether and when to contact the police is consistent with her primary concern being her physical health;

• That wavering is also understandable in light of the pressure that KA felt she was under from J.S. not to report the incident. That pressure is, in turn, consistent with Det. Grus’ observations from her visit at KA’s apartment in the fall of 2017; and

• By the time that KA decided to proceed with the complaint, she had left J.S., sought rehabilitation for her drug use, and left the drug lifestyle. It was after the opportunity for introspection and reflection that she decided to proceed with the complaint.

[199] I turn, for a moment, to DO’s evidence about KA. DO’s lack of specific memory of the sexual assault described by KA does not cause me to doubt KA’s account of the incident. Both DO and D.B. described that he brought many women to and had sex with them at DO’s apartment. DO testified that she would go to another room in the apartment while D.B. had sex with women.

[200] DO’s evidence is also that she was aware that D.B. liked to role-play during sex. Therefore, even if DO heard what might be considered to be sounds of a woman responding to aggressive or assaultive behaviour, she could not be sure that the sounds were not a matter of role-playing. DO chose not to insert herself into D.B.’s sexual relationships with other women.

[201] DO testified that she did not socialize with people in the manner described by KA (i.e., with someone coming over to smoke crack). As will be seen from my review of DO’s evidence, I find that her use of generalities is such that I reject her evidence on this general point. I accept KA’s description of how and why she came to be at DO’s apartment on the date of the sexual assault.

[202] In summary, KA’s descriptions of DO remaining in her bedroom while KA and D.B. were in the living room and of the lack of post-incident discussion with DO are both consistent with DO’s evidence as to how she handled situations of that kind.

• Uttering Threats – Count No. 14 (s. 264.1(2))

▪ KA’s Evidence

[203] This charge arises from KA’s understanding that D.B. had arranged a train-run to happen to her if she reported the sexual assault of September 5, 2016 to the police. The utterance of a threat in that regard is said by KA to have occurred between April 1 and June 30, 2017.

[204] KA’s evidence as to the circumstances in which the threat of a train-run was uttered is as follows.

[205] In the spring or early summer of 2017, KA learns that D.B. is residing in an apartment at 210 Bay Street. She sends a text to or telephones D.B. to set up a meeting with him at his apartment. KA goes to the apartment with a female friend – someone who is known to D.B. The two women travel to the apartment in an Uber.

[206] When KA sees D.B. at his apartment, D.B.,

• confirms to KA that he has let it be known in the community that he is prepared and willing to pay $1,000 for a train-run to be carried out on her, and

• tells KA that the train-run will not be carried out if she agrees not to pursue charges against him.

[207] During the conversation, D.B. laughs about the prospect of paying $1,000 for the train-run. At the conclusion of the conversation, D.B. tells KA that he has recorded their conversation. He laughs about having done so.

▪ D.B.’s Evidence

[208] D.B. denies that the meeting and conversation at his Bay Street apartment occurred as described by KA. One of the bases for his denial of uttering the threat of a train-run is that he would not have had the $1,000 to pay for it.

▪ Findings on Count No. 14

[209] I am satisfied beyond a reasonable doubt that both the actus reus and mens rea elements of the offence of uttering threats are made out.

[210] I reject D.B.’s denial that the subject of a train-run was discussed. For the reasons set out above with respect to KA’s qualities as a witness, I prefer and accept her evidence regarding the meeting at the Bay Street apartment, including the subject of the discussion.

[211] I find it to be entirely in keeping with D.B.’s lack of concern for the truth that he would be prepared to portray to KA that he had the potential to arrange for a train-run. The threat uttered falls within the scope of bodily harm included in s. 246(a).

[212] I also find that a reasonable person in KA’s circumstances as of the spring of 2017 would perceive the potential train-run as a threat of bodily harm. By that time, KA believed that others, including her then boyfriend, were aware of D.B. having discussed a train-run in the community. It would make sense to KA that her boyfriend would, as a result of the possibility of a train-run, be trying to convince her not to pursue charges against D.B.

[213] Whether or not D.B. actually intended to pay for the train-run to be carried out is irrelevant. His lighthearted manner during the meeting may have been in keeping with him knowing that it was unlikely that he would be able to fund the train-run. I find that he had no reason to believe that KA would take the threat of a train-run lightly – as anything other than a serious threat. I find that D.B. intended that KA take him seriously and that she be intimidated by the threat of a train-run.

[214] The timing of the meeting is consistent with KA communicating with the police in April 2017, deciding in May 2017 not to pursue the charges, and deciding only after D.B. is arrested to pursue the charges.

[215] I am satisfied beyond a reasonable doubt as to D.B.’s guilt on count no. 11.

[216] Next, I deal with the allegations made by the third complainant, KJ.

c) KJ

[217] KJ alleges that she was sexually assaulted by D.B. in her own home and that the assault included the use of choking. KJ does not know the precise date on which the assault occurred. She alleges that it happened between June 1 and August 30, 2016.

[218] D.B. admits that during sexual encounters with KJ he choked her. D.B.’s evidence is that any choking during their sexual encounters was consensual. He denies that the incident giving rise to these charges happened as described by KJ.

• June 1 – August 30, 2016 – Count Nos. 10 and 11 (ss. 271 and 246(a))

▪ KJ’s Evidence

[219] KJ’s evidence is that, in the summer of 2016, she was living at the same apartment building as DO. Access to KJ’s unit could be gained through at least one of the windows – allowing the person entering her unit to bypass the main entrance of the building.

[220] KJ’s daughter was killed in a 2014 bus accident. KJ testified that she did not recover from the death of her daughter. By the summer of 2016, she was depressed, using crack, and taking hydromorphone (for which she had a prescription).

[221] KJ came to know DO as one of her neighbours. Through DO, KJ was introduced to and learned that she could purchase crack from D.B.

[222] Each of KJ, DO and D.B. testified that DO’s apartment was a busy spot – with many people coming and going. Both KJ and D.B. described KJ’s apartment as a quiet spot where D.B. could cook his crack.

[223] In summary, KJ testified that she was sexually assaulted, with choking, by D.B. as follows. On a nice summer day, she places a call to D.B. to purchase drugs. She expects D.B. to deliver the drugs but does not know when he will arrive. When D.B. arrives, he enters through the window and has a man with him. KJ does not know the man and never learns his name.

[224] KJ and D.B. sit and talk in the living room; the other man is seated in a chair and appears to KJ to be out of it.

[225] KJ goes to her bedroom to retrieve something. When she turns around to return to the living room, D.B. is in the bedroom, standing so that his face is about 10 to 12 inches from KJ’s face. D.B. says nothing, grabs KJ’s hair, grabs one of her arms, and pushes her, face down, onto her bed. The front of KJ’s torso and the front of her thighs are pressed against the mattress.

[226] D.B. quickly removes KJ’s jeans and underwear, lowering them to KJ’s ankles. D.B. partially removes KJ’s t-shirt, with one arm out of its sleeve. D.B. removes KJ’s bra and uses it to choke KJ and to push on the back of her neck. D.B. grabs KJ’s hair.

[227] D.B. has control of KJ’s left arm because it is still in the T-shirt. KJ uses her right hand to grab the bra and lessen the force with which she is being choked. KJ screams out at D.B. to stop and physically struggles to free herself. D.B.’s power and level of violence escalates. D.B. eventually stops and tells KJ that the other man will have his turn with her. To KJ’s surprise, the other man does not come to her aid at any time.

[228] D.B. returns to the living room. KJ changes into a dress, returns to the living room, makes her drug purchase from D.B., smokes the drugs, and asks the men to leave.

[229] The injuries which KJ suffers as a result of the incident include a scratch and bruise to the left side of her neck (from the use of the bra as a choking device). She also experiences an aggravation of her back pain from pre-existing degenerative disc disease.

[230] KJ does not seek medical attention, nor does she call the police. Instead, the next day she confronts D.B. Her sense of betrayal is compounded by D.B.’s lack of memory and denial of the incident. KJ at some point tells DO of the incident, but in general terms only.

[231] KJ continues to have contact with D.B. after the incident. She does so because he is a convenient source of the drugs to which she is addicted. KJ is uncertain about whether she continues to have a sexual relationship with D.B. after the incident at her apartment.

[232] Some time later, two female police officers come to KJ’s apartment. Before the police provide any specific information as to why they are there, KJ surmises that they are there to speak to her about DO and that they know about the incident that occurred at KJ’s apartment. Unprompted by the police officers, KJ tells them that she was raped by D.B.

[233] Thereafter, KJ agrees to be interviewed by Det. Grus; KJ eventually decides to proceed with her complaint.

▪ D.B.’s Evidence

[234] D.B. testified that KJ was “pretty open” in terms of sexual activity. D.B. denies that any of his sexual encounters with KJ were “very aggressive … very strong or very rough”.

[235] For one or more of the following reasons, D.B. understood that KJ consented to the use of choking:

• KJ never made him understand that she was uncomfortable;

• KJ never said either “no” or “stop”;

• KJ never complained after an encounter that included choking;

• KJ never appeared to him to be in distress. She “always had a good smile in her face, and she always look like everything was okay”; and

• KJ did not verbally or physically show D.B. anything he believed to be a sign of panic or distress.

[236] I contrast that evidence with D.B.’s acknowledgement in cross that, in addition to never saying “no”, KJ never said “yes” to the choking.

[237] D.B.’s evidence is that, for the sexual encounters that involved choking, he would bend his arm into a “V” and place it around KJ’s neck.

[238] In summary, D.B. does not recall the incident which KJ described, does not deny that sexual encounters with KJ involved choking, and admits that KJ never said “yes” to the choking.

[239] D.B. is uncertain whether he recalls a conversation with KJ in which she confronted him about the incident. That uncertainty runs contrary to D.B.’s express concern about not being ‘labelled’ as a sexual assaulter within the community on the street. I find that if his concern in that regard were genuine and that he conducted himself in a manner so as not to be labelled a sexual assaulter, the confrontation by KJ would stand out to him.

[240] A better explanation for D.B.’s uncertainty about being confronted is that, even if he does remember it, he was indifferent to the incident and/or was operating under a misapprehension as to what is meant by “consent”.

▪ Findings on Count Nos. 10 and 11

[241] For the following reasons, I am satisfied beyond a reasonable doubt as to D.B.’s guilt on count nos. 10 and 11.

[242] I reject any notion that D.B. obtained KJ’s consent to the sexual activity, including the choking.

[243] I accept KJ’s evidence. I found KJ to be candid about the hardships she was enduring and her resort to drugs as a coping mechanism. She did not attempt to downplay her feelings for D.B. or that their relationship involved consensual sexual activity.

[244] I accept that KJ’s inability to pinpoint the date of the incident on which the charges are based is due to her loss of a sense of time following the death of her daughter and because of drug use. In the latter regard, KJ’s evidence is consistent with the evidence of the other complainants.

[245] There may be an inconsistency between KJ’s evidence at trial and the contents of KJ’s August 2019 statement to the police with respect to whether D.B. was expected or not expected by KJ at her apartment on the date of the sexual assault. I say “may” because KJ’s evidence at trial is that D.B. was “expected” because KJ had placed a call for drugs; he was, however, “unexpected” to the extent that KJ did not know precisely when D.B. would arrive.

[246] In her August 2019 statement, KJ said that D.B.’s attendance at the apartment that afternoon was not expected.

[247] As noted in the introductory portion of these reasons, the existence of a singular or even a few inconsistencies does not necessarily support a conclusion that a witness is either not credible or not reliable. The inconsistency, if it exists, on the point of “expected” versus “unexpected” does not lead me to conclude that KJ’s account of the events on the afternoon of the sexual assault is not to be believed.

[248] KJ’s description of the sexual assault is detailed and internally consistent. There was no reason for KJ to fabricate the presence of another individual in her apartment – someone who could potentially be called to give evidence.

[249] KJ’s sense of betrayal by someone she considered to be a friend is consistent with her confronting D.B. the day after the sexual assault. In the context of narrative (logical cogency), that betrayal is also consistent with KJ’s struggle during the subsequent months and year to come to terms with what happened and with her self-blame. It was not until presented with a direct opportunity that KJ chose to report the incident. By that time, more than a year had passed since the incident and D.B. was in custody.

[250] Defence Counsel submitted that inconsistencies in KJ’s evidence and her report to the police, in August 2019, as to the nature and extent of her post-assault contact with D.B. are significant and detract from the overall credibility of her evidence. I disagree. I find that the inconsistencies in that regard are in keeping with KJ’s admitted loss of sense of time. They do not, in any event, cause me concern with respect to the credibility of her account of the sexual assault.

[251] I reject the defence theory that KJ reported the incident out of a sense of revenge. There is nothing in KJ’s evidence to support a conclusion that she was motivated by revenge.

[252] Before concluding this section of my reasons, I wish to address the meeting between EI and KJ that occurred in the summer of 2020. The two women met in the laundry room of the building in which KJ was living. The meeting occurred after EI had testified and approximately one month before KJ testified.

[253] I reject the defence theory that the meeting resulted in tainting of KJ’s evidence. I accept KJ’s evidence that the meeting occurred by chance, because EI had been hired as a cleaner in the building. I also accept KJ’s evidence that, as soon as the two women realized that they were both involved in this proceeding, they brought their conversation to an end.

[254] Whatever the extent of the conversation between EI and KJ, including with respect to their involvement in this proceeding, there is no evidence that the conversation had any impact on KJ’s testimony. There is no evidence to suggest that KJ’s evidence at trial is materially different from any of her earlier accounts of the incident.

[255] I deal next with the allegations made by the fourth complainant, DO.

d) DO

[256] For several reasons, DO stands in distinction from the three other complainants. First, she and D.B. married in 1991. As of the dates on which this trial proceeded, they remained married. Count nos. 5 to 9 relate to D.B.’s alleged conduct during the marriage.

[257] Second, the allegations made by the three other complainants are based on discreet events. The allegations made by DO are based, in part, on what she described as an abusive marriage – at least for the 15 years prior to D.B.’s arrest in October 2017.

[258] Third, DO’s evidence does not fall within the scope of the SFE ruling.

[259] The Crown is pursuing a conviction on count nos. 7 and 8 (ss. 271 and 246(a)) and count no. 9 (s. 264.1). The Crown is inviting an acquittal on count nos. 5 and 6 (ss. 273(2) and 272(2)). I deal first with count nos. 7 and 8, then with count no. 9, and last with count nos. 5 and 6.

• Sexual Assault and Choking to Enable Sexual Assault – Count Nos. 7 and 8 (ss. 271 and 246(a))

▪ DO’s Evidence

[260] DO testified that she has been a drug user for decades. DO attributes her criminal record to her drug use. That record dates back to 1975, at which time DO was convicted of theft under $200. There is a 16-year gap in the record, with DO’s next conviction in 1991. From 1991 to 1999, there are 13 convictions; six of them are theft-related. Three convictions are for failure to abide by a court order, including failure to appear. The next and final convictions are in 2005 – one for theft under $5,000 and one for failure to appear. There are no convictions subsequent to 2005.

[261] DO acknowledged that she has difficulty with dates.

[262] DO’s evidence stands in contrast to that of the other complainants because much of DO’s testimony was about D.B.’s general patterns of behaviour throughout the marriage. DO testified that she was regularly sexually assaulted by D.B. during a 15-year period; she described the marriage during the last ten years prior to October 2017 as a nightmare.

[263] DO’s evidence is that one of the reasons why she permitted D.B. to have sex with other women in the apartment (i.e., as alleged by KA), was that because if he did so he would leave DO alone.

[264] DO testified that D.B.’s behaviour towards her escalated over time, with D.B. becoming generally more aggressive and the sexual assaults becoming more violent. In summary, DO’s evidence with respect to the sexual assaults she alleges she endured is as follows:

• The frequency of the assaults depended, at times, on the extent to which D.B. was able to have sex with other women – whether at DO’s apartment or elsewhere;

• There were times when D.B. sexually assaulted DO more than once in the same day;

• The non-consensual sexual activity included forced anal sex, forced fellatio (to the point of causing DO to vomit), choking (preventing DO from being able to breathe properly), and grabbing DO’s hair;

• The more that DO resisted D.B. or yelled, the more it appeared to DO that D.B. took pleasure from the incident; and

• The injuries DO suffered over time, as a result of the sexual assaults, include bruising to both her neck and her coccyx (from forced intercourse), difficulty swallowing after the incidents involving choking, and mental pain.

[265] DO recalled two specific sexual assaults. She acknowledged that she has difficulty with dates; she was unable to recall the dates of the two specific sexual assaults.

[266] DO’s evidence is that the final assault occurred when DO was in her apartment, standing at the kitchen sink doing the dishes. DO did not recall at which apartment this incident occurred. D.B. entered the apartment. D.B. appeared to DO to be angry because he did not have a “date” – meaning a woman with whom he would have sex.

[267] DO testified that D.B. asked her to be his date. She understood that to mean that D.B. was asking her to give him a blowjob. She refused and told D.B. to get away from her. D.B. then grabbed DO by the hair, took her to the bedroom, and forced her to perform oral sex to the point that she vomited into an empty coffee can provided by D.B. for that specific purpose.

[268] DO also testified about a second discreet sexual assault that occurred on one of her birthdays. This incident involved forced oral sex and vomiting into an empty coffee can. DO’s evidence is that the use of an empty coffee tin for that purpose is a feature of the sexual assaults that spanned 15 years.

▪ D.B.’s Evidence

[269] D.B. denies that he sexually assaulted DO. D.B. testified that the quality of the marriage deteriorated over time. His evidence is that during the most recent years of the marriage prior to his October 2017 arrest, he was not regularly at DO’s apartment – specifically the apartment on MacArthur Avenue.

[270] D.B.’s evidence is that for a “truly long time”, he and DO had an agreement that he could bring women to DO’s apartment to have sex with other women. In cross, with respect to the specifics of that arrangement, D.B.’s evidence is that DO rented the bedroom of the MacArthur Avenue apartment to tenants, and DO would sleep on the living room couch. Therefore, D.B.’s arrangement was directly with the tenant; he had the tenant’s permission to use the bedroom to have sex with women other than DO.

[271] D.B. testified that, in late 2016 and early 2017, DO rented the bedroom of the MacArthur Avenue apartment to Cathleen Salter. Ms. Salter testified at trial; her evidence is discussed immediately below. D.B. described Ms. Salter as a woman with whom he previously had a sexual relationship and with whom he is now a close friend.

▪ Findings on Count Nos. 7 and 8

[272] For the reasons that follow, I am left with a reasonable doubt as to D.B.’s guilt on count nos. 7 and 8.

[273] In addition to the general concerns about D.B.’s evidence, I add the following specific concerns about his evidence with respect to the allegations made by DO. First, D.B. attempted to minimize the amount of time that he spent at DO’s apartment on MacArthur Avenue. By contrast, he testified that “several times” Ms. Salter stayed with DO and, “[m]e too, I was there”.

[274] Ms. Salter’s evidence is that from October to December 2016 (i.e., before D.B. was incarcerated in January 2017), she saw D.B. at DO’s apartment at least twice a day. She did so even though she worked approximately 16 to 20 hours per week at a dry cleaner’s. Ms. Salter testified that “everybody knew” that D.B. would go to DO’s; people went there to wait for D.B. and purchase their drugs. Ms. Salter’s evidence is that D.B. also went to the apartment to sell drugs and/or “just to say ‘hi’” to DO or Ms. Salter.

[275] Second, D.B. relied on Ms. Salter’s tenancy as the premise for his use of the bedroom in the apartment to have sex with other women. D.B. identified Ms. Salter as one of the tenants with whom he had an arrangement to use the bedroom of the apartment. There is no evidence from Ms. Salter with respect to an arrangement of this kind.

[276] Ms. Salter’s evidence is that she shared an apartment with DO at three locations, the most recent location being the MacArthur Avenue apartment from October 2016 to March 2017. Ms. Salter testified that she and DO alternated sleeping in the bedroom and the living room – depending on whether Ms. Salter had to get up early to go to work.

[277] I find that Ms. Salter’s evidence does not support D.B.’s portrayal of him spending little time at DO’s apartment. Ms. Salter’s evidence that she did not observe some of the conduct as alleged by DO is of no consequence given that (a) she was not at the MacArthur Avenue or any other apartment 24 hours per day, and (b) she resided with DO at three locations for months at a time only.

[278] In addition, Ms. Salter acknowledged that she is “more for the defence side.” Ms. Salter acknowledged in cross that she declined an invitation to speak with the police as part of the investigation of these charges. Her explanation for declining was as follows:

I explained that I was uncomfortable. That I felt, because I am more for the defence side, talking to the police or working with the Crown, I didn’t think it was a very good idea … I was due to be on the witness stand and I just personally, I didn’t want to give any ammunition. If they – if there was something that they didn’t know that I knew I’d just as soon keep it to myself.

[279] Ms. Salter acknowledged that as of March 29, 2021, she had been in regular contact with D.B. since his incarceration – visiting him twice a week – until contact was limited because of Covid-19 restrictions. By March 29, 2021, Ms. Salter had been in touch with D.B. by telephone on a daily basis including in the period after which she learned that she would be a witness at trial.

[280] Ms. Salter’s evidence is that she and D.B. did not discuss what she would say at trial. Ms. Salter described the calls as a release valve for D.B., during which he could release his frustrations over what was happening. Ms. Salter denied that she and D.B. ever discussed the evidence at trial.

[281] In summary, I find that Ms. Salter’s evidence does not assist D.B. in his defence of the charges related to DO. In any event, her acknowledged bias and other aspects of her testimony not discussed in detail (e.g., the ‘alibi letter’) lead me to conclude that she is not a credible witness.

[282] There are several significant frailties to DO’s evidence. For example, DO used the phrase “24/7” in an effort to describe the frequency with which D.B. was at her apartment. DO’s description does not accord with D.B.’s lifestyle as described by the three other complainants – a lifestyle that includes D.B. moving about the city during daytime hours, frequenting the apartments of others, and utilizing KJ’s apartment as a quiet place away from the business of DO’s apartment.

[283] As another example, I consider DO’s evidence with respect to the frequency with which D.B. sexually assaulted her. In chief, DO testified that D.B. would sexually assault her “every day on every hour”. Her evidence also includes that the sexual assaults occurred up to eight to ten times per day and lasted “all day and all night”. None of those descriptors rings true in light of the evidence about D.B. moving about the city during daytime hours, frequenting the apartments of others, utilizing KJ’s apartment as a quiet place away from the chaos of DO’s apartment, and the chaos at DO’s apartment.

[284] DO testified that, over time, “a whole bunch of people” were present and witnessed D.B.’s sexual assaults of her. In cross, DO testified that she is not good with names and, as a result, is unable to recall the name of a single person who witnessed one of the alleged sexual assaults. Even if DO is bad with names, I find it implausible that she is unable to recall the name of a single person who was present for any one of the sexual assaults alleged to have occurred during the suggested 15-year period.

[285] In cross, and in quick succession, DO gave two different explanations for why she had cut her long hair short. DO initially testified that she did so because her mother had won a makeover prize. She then explained that was when she “took the opportunity” to cut her hair short – purportedly in an effort to avoid having D.B. grab her hair.

[286] In chief, DO testified that she was unable to isolate each incident of alleged non-consensual sex because she is “missing days” of her life and was so high, at times, that she did not know if she was coming or going and life becoming “one big, long day”.

[287] One cannot compare DO’s allegation of a blur of years of abuse with the discreet, traumatic events described by each of the three other complainants. In light of that blur, it is not surprising that DO did not recount the alleged assaults over time in the same way that the three other complainants each described discreet events. However, DO distinguished between the impact of her drug use and that blur on her ability to deal with time from their impact on her ability to recall what happened.

[288] That distinction between impact on ability to deal with time and impact on ability to recall what happened is, however, not sufficient to overcome my general concerns about DO’s credibility and reliability. After considering DO’s evidence, I am left with a reasonable doubt with respect to both the 15-year period and the two discreet events described. In summary, I am left with a reasonable doubt as to D.B.’s guilt on count nos. 7 and 8.

[289] I turn to count no. 9 – the charge of uttering threats to DO.

• Uttering Threats – Count No. 9 (s. 264.1(2))

▪ DO’s Evidence

[290] DO’s evidence is that from time to time D.B. threatened to (a) cut off her drug supply, (b) haunt her for the rest of her life, (c) kill her mother, (d) kill her “bastard son” or, when her son was younger, have him taken away from her, (d) beat her, and (e) teach her lessons by forcing her to do things he knew she did not want her to do. DO also testified that D.B. expressed to her that he wanted to bury her dead or alive. DO testified that threats of these kind were uttered when DO refused to do what D.B. wanted her to do.

[291] In cross, DO (a) testified that it never occurred to her to call the police about at least some of the threats because D.B. was just shooting his mouth off, (b) acknowledged that she never thought that D.B. would kill her, and (c) testified that she interpreted D.B.’s use of the word “bury” to mean that he would leave her without drugs.

▪ D.B.’s Evidence

[292] D.B. denied threatening DO in the manner in which she described.

▪ Findings on Count No. 9

[293] Ms. Salter denied ever hearing D.B. threaten DO. In cross, she acknowledged placing a 911 call to the police from DO’s apartment in which she reported that DO had been threatened by D.B. Ms. Salter’s evidence is that she did not personally observe the threat being made but was told by DO that D.B. had threatened her.

[294] Once again, including for the reasons set out above, Ms. Salter’s evidence is of no assistance to D.B. in his defence of this charge.

[295] For the reasons already given on count nos. 7 and 8, I am left with a reasonable doubt as to D.B.’s guilt on count no. 9.

• Aggravated Sexual Assault and Sexual Assault Causing Bodily Harm – Count Nos. 5 and 6 (ss. 273(2) and 272(2))

▪ Findings on Count Nos. 5 and 6

[296] The Crown invites an acquittal on each of these charges. On count no. 5, the Crown submits that there is insufficient evidence that D.B. wounded, maimed, disfigured or endangered DO’s life in the commission of a sexual assault. I agree and D.B. is acquitted on count no. 5.

[297] The Crown also invites an acquittal on count no. 6, submitting that there is insufficient evidence that D.B. caused bodily harm to DO in the commission of a sexual assault. I agree and D.B. is acquitted on count no. 6.

Similar Fact Evidence

[298] I am satisfied based on the individual evidence of each of EI, KA and KJ, as to D.B.’s guilt on count nos. 1, 2, 4, 10, 11, 12 and 13. The similar fact evidence is not required to support my conclusions with respect to those counts.

[299] Were I required, however, to consider the similar fact evidence, I would conclude that each of those three complainants testified to (a) their respective attraction to D.B., albeit not for the exact same reasons, and (b) their respective reliance on him, to some degree, as a source of the drug to which they were addicted. Their respective evidence on those points supports an inference that “D.B. has a propensity to sexually assault women who are drawn to him, and therefore accessible to him, as a result of their respective dependency on crack cocaine.”

[300] There is no connection between EI, KA and KJ – with the exception of the laundry room meeting between EI and KJ already addressed. Despite that overall lack of connection, it is unlikely that the similarities in their respective evidence is the result of coincidence: R. v. Arp, [1998] 3 S.C.R., at para. 64.

[301] Given the probative force of the similar fact evidence, it would serve to eliminate any doubt that might have otherwise existed with respect to the evidence of each of the complainants on its own. In summary, the similar fact evidence, if considered, would support a conclusion that the Crown has established beyond a reasonable doubt, D.B.’s guilt on count nos. 1, 2, 4, 10, 11, 12 and 13.

Disposition

[302] Before concluding my reasons, I wish to repeat the comments which I made at the conclusion of oral submissions. This trial was not without its logistical challenges – from delays encountered for any number of reasons to the technological challenges posed by the combination of a virtual and in-person hearing. All counsel throughout conducted themselves at a high level of professionalism and civility. The level of diligence required of both the Crown and D.B.’s current Defence Counsel to see this trial through to its conclusion was well above average. I am grateful to all counsel for their assistance throughout the trial.

[303] I summarize my findings as follows:

• With respect to EI, I find D.B. guilty on count nos. 1 and 2, not guilty on count no. 3, and guilty on count no. 4;

• With respect to DO, I find D.B. not guilty on count nos. 5 to 9;

• With respect to KJ, I find D.B. guilty on count nos. 10 and 11; and

• With respect to KA, I find D.B. guilty on count nos. 12, 13 and 14.

Madam Justice Sylvia Corthorn

Released: December 24, 2021

COURT FILE NO.: 17-RA19540, 18-SA5054,

and 18-SA5091

DATE: 2021/12/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

D.B.

Applicant

REASONS FOR JUDGMENT

Madam Justice Sylvia Corthorn

Released: December 24, 2021