Court File and Parties

Court File No.: CR-20-99 Date: 2022/03/08 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Preston Proulx, Defendant

Counsel: Dana Peterson, for the Crown G. Clark, for the Defendant

Heard: January 24, 25 and 26, 2022

Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. These reasons have been anonymized to permit their publication.

Reasons for Decision

Ellies R.S.J.

OVERVIEW

[1] The defendant, Preston Proulx, is accused of committing four offences against his former girlfriend, B. W. The offences include sexual assault and forcible confinement. They are all alleged to have occurred in the early morning hours of March 12, 2019, when the complainant, Ms. W., agreed to allow the defendant to retrieve a new iPad and accessories that he had ordered when they were living together, but which had been delivered to her apartment after they broke up.

[2] The only two witnesses called at trial were the complainant and the defendant. While their evidence about the events of that day is similar up to a certain point in time, they give very different versions of what happened after that. The main issue to be resolved is credibility. Both the Crown and the defence agree that, if I accept the complainant’s version of events, the defendant must be convicted of all four offences.

[3] A subsidiary issue arises with respect to the use to be made of emails that were exchanged between the complainant and the defendant in the hours and days following the alleged offences.

EVIDENCE

Undisputed Evidence

[4] The complainant and the defendant are both from the James Bay Coast. They met through mutual friends.

[5] The complainant began living in North Bay in 2010. In 2011, she had a child with another partner. The defendant is about four years younger than she is. He had lived in North Bay for a period of time while he played Junior A hockey. He returned home afterwards, but his mental health deteriorated while he was there due to excessive alcohol consumption.

[6] It is not clear from the evidence when, but the defendant was flown to North Bay by air ambulance at some point, where he was hospitalized as a result of his alcohol consumption. The complainant invited the defendant to live with her when he was released from the hospital in May 2018. According to both witnesses, the complainant was instrumental in keeping the defendant sober while they were living together. Unfortunately, as I will come to, the defendant’s sobriety did not last.

[7] According to the complainant, the defendant moved out on or about February 19, 2019 (Family Day), after they had an argument about her relationship with her child’s father. The defendant testified that he moved out much earlier, in November 2018. This discrepancy has some bearing on my assessment of the evidence, as I will explain later in these reasons.

[8] It is clear from the evidence of both witnesses that the complainant had no intention of resuming her relationship with the defendant following the breakup. Both admit that the complainant had blocked the defendant’s phone number on her cell phone. The defendant says that he may also have blocked the complainant’s number. However, by March 12, 2019, at least one of them was having second thoughts.

[9] At the time of the alleged offences, the complainant lived in an apartment in a converted church. The church appears to consist of what must have been the former chapel as well as a building added to the back, perpendicular to the former chapel. The complainant’s residence was in the addition.

[10] There are two doors to the apartment. According to a photograph downloaded from the Internet and introduced by counsel for the defendant, the main door to the apartments appears to have been the main door to the chapel. That door leads to a parking lot which looks to have enough room for approximately ten vehicles. The entrance to the parking lot is off Charles Street, in North Bay.

[11] There is a second door to the apartments. This door leads directly to the building that I have described as an addition. Both exits are visible from the parking lot. It is important to note that both doors are usually locked such a key is required to enter through each. It is also important to note that the defendant had no key for either door at the time of the alleged offences.

[12] At about 1:00 a.m. on March 12, the complainant received a call on her cell phone from an unknown number. When she answered, she discovered it was the defendant, who admits that he used an app of some kind to conceal his number so that the complainant would answer the call.

[13] The defendant told the complainant that he wanted to talk about their relationship. He asked if he could come over to pick up his iPad and she agreed. He sent her an email at about 1:21 a.m. telling her that he was on his way and that she was “the love of [his] life”. He arrived at the complainant’s apartment building about 20 minutes later.

[14] This is the point in the evidence at which the testimony of the witnesses begins to diverge.

The Complainant’s Evidence

[15] According to the complainant, after she received the defendant’s email, she grabbed the package containing the iPad and went to meet him outside. She testified that she did that because she did not want the defendant to come inside. As she was exiting the entrance to the addition in which her apartment is located, she saw that the defendant was waiting at the main entrance. When he saw her, he came towards the entrance she had used to exit the building.

[16] The complainant testified that she gave the defendant the package when she got outside. She said that he then put the package down on the ground and began to tell her how sorry he was that they had broken up and how much he wanted to work things out. She was unable to remember what she said in response.

[17] The complainant testified that she wanted a cigarette. Because she was not allowed to smoke in the building, she kept her cigarettes in her car, which she had parked in a spot adjacent to Charles Street. According to the complainant, the defendant parked his truck in a spot adjacent to hers. She testified that she and the defendant went to her car, where she retrieved the cigarettes from the driver’s side. She said that she gave the defendant a cigarette and the two of them remained there, in between the vehicles.

[18] The complainant said that the defendant hugged her at one point while they were in the parking lot and that she could smell alcohol on him while he did so, which made her nervous. She asked the defendant if he had been drinking and he replied that he had. She testified that this made her nervous because the defendant had not been drinking while they were living together.

[19] The complainant testified that the defendant wanted to go into her apartment to discuss their break-up and that she told him she did not want him to go in. She said that, after she refused a second time, he became aggressive and upset. Although they were only a few feet apart, he began yelling and swearing. He accused her of having someone inside her apartment.

[20] According to the complainant, the defendant then tried to grab her keys. She testified that, although they were all on separate key rings, the keys for the outside door, the door to her apartment, a mailbox, and her car’s key fob were all attached together. The keys also play a role in deciding the main issue in this case.

[21] The complainant refused to give the defendant her keys. As a result, he shoved her face first into a snowbank behind her car. He then turned her over and tried to choke her while he attempted to get her keys. The complainant testified that he had his knee on her chest and a hand around her neck. She was unable to breathe and could not scream for help. She testified that the more she tried to escape the defendant’s clutches, the angrier he got. When she tried to scream, he threw snow into her mouth.

[22] The complainant testified that, ultimately, she gave up the keys so that the defendant would stop his assault. However, her car key fob had come off during the struggle and the defendant threw it away. He also took her cell phone but gave it back when she threatened to press charges. By then, according to the complainant, the defendant had the keys he needed to get in her apartment.

[23] The complainant testified that, following the struggle, they both looked in the snow for her car keys; however, they were unable to find them.

[24] After the aborted search, the defendant told the complainant that he wanted to go inside. She was unable to remember what she said in response or what entrance they used to get in but recalled that she was scared at the time. She said that the defendant led the two of them to one of the doors and used the key to get in. She could not remember which door.

[25] The complainant’s apartment was on the second floor of the building. To get there, the two of them had to walk past a number of other apartment doors. The complainant testified that she did not believe that the defendant needed to use the key to get into her apartment, as she had left the door unlocked.

[26] The complainant testified that, as soon as they got into her apartment, she tried to get out, but she was not successful. She said the defendant caught her before she could get to the door and flung her backwards. She tried to scream, but the defendant covered her mouth. He told her “if you try to scream, it will be the last thing you ever do”. She said this made her feel powerless and afraid for her own safety.

[27] From that point forward, the complainant was compliant.

[28] The complainant testified that she and the defendant remained in the living room for a while before the defendant told her to go upstairs with him, which is where her bedroom was located. Once there, the defendant sat the complainant on the bed and stood in front of her. He began to take his clothes off. The complainant told the defendant that she “did not want to do this”, meaning that she did not want to have sex. He replied, “Yes, you do because you’re a dirty whore and a slut.” The complainant testified that the defendant said that if she had sex with him, he would leave. She said that she felt she had no choice.

[29] After the defendant took his clothes off, he began to take the complainant’s clothes off. He first had her perform oral sex on him and he then did the same to her. He then got on top of her and “started to have sex” with her.

[30] According to the complainant, the defendant then wanted to go downstairs to the couch in the living room. Once there, the defendant sat on the couch and the complainant knelt on the floor to perform more oral sex upon him.

[31] The complainant testified that the oral sex stopped when she went to the bathroom to throw up. When she came back to the living room, she told the defendant that she could not engage in oral sex anymore because she had been sick. She could not remember what the accused said, if anything. She testified that they then went back upstairs to her bedroom and continued to have sex. Notwithstanding what the complainant had told the defendant shortly before, the defendant wanted more oral sex, but the complainant was unable to do so. He then performed oral sex upon her as she lay on her back on the bed. According to the complainant, the defendant at one point noticed that she was crying but continued performing oral sex on her.

[32] The oral sex gave way to vaginal intercourse at one point, with the complainant again crying and looking in the other direction. She testified that the defendant “wanted to do different positions”. At his direction, they began having anal sex at some point.

[33] The complainant testified that the sexual interaction ended after the defendant ejaculated while she was on her stomach and he was behind her. It is not clear from the evidence exactly what type of sex was taking place at the time.

[34] After the defendant ejaculated, he began to get dressed. The complainant got dressed, as well. The complainant testified that she walked the defendant out and locked the apartment door behind him. She could not remember if anything was said as the defendant left her feeling disgusted and ashamed of herself.

The Defendant’s Evidence

[35] Although he had been sober for about a year, the defendant had relapsed a few days before March 12, 2019. That night, he was drinking with a friend in Corbeil (a small community just south of North Bay). The defendant testified that he was very unhappy with himself as a result of the relapse, feeling as though he was right back to where he was before he left the hospital and began living with the complainant. He decided that he wanted to try to rekindle his relationship with her and used the arrival of the iPad and accessories as an excuse to see her. He admitted that he had had enough to drink and that he probably should not have been driving, although he thought he was “at the legal limit”.

[36] The defendant testified that when he got to Charles Street, rather than entering the parking lot, he parked on the road, facing Lake Nipissing. He said that he left his truck running, as he did not intend to stay.

[37] After he arrived, he saw the complainant coming out of the entrance to the addition. He said he met her halfway across the parking lot. The complainant was going to her vehicle to retrieve her cigarettes. The defendant testified that the complainant had both her phone and her keys with her. She used the phone as a flashlight when she went into her car to retrieve her cigarettes and then put it in her pocket. She kept the keys in her hand, according to the defendant.

[38] The defendant testified that after the complainant retrieved her cigarettes, the two of them stood together in about the middle of the parking lot and stayed there for about 15 to 20 minutes, sharing two cigarettes with one another and talking.

[39] The defendant denied that he ever took the complainant’s phone or keys from her while they were outside. Instead, he said that they began to get intimate. He said that they hugged one another and that, because it was getting cold, the complainant asked him to come inside to talk. He agreed and, according to him, he followed the complainant through the main entrance, which she unlocked by using her keys. Just as the complainant testified, when they got to her apartment door, it was unlocked.

[40] Importantly, the defendant testified that the complainant never brought his iPad and accessories in the parking lot. Instead, he said he found them on the table in the complainant’s apartment. He said he opened the box to see what was inside, to be sure that he had received the entire order.

[41] The defendant testified that there were empty cooler cans of “Somersby” on the table. I gather that this is an alcoholic drink. The defendant testified that the complainant offered him one but that he refused because his vehicle was running outside and, instead, had some water.

[42] According to the defendant, the complainant invited him to come further into the apartment, which he accepted. He took his boots off and went to sit on the couch in the living room, taking his water with him.

[43] The defendant testified that, after a period of time, he and the complainant stood up and began kissing one another. He said that she put her hands on his waist and guided him back to his seat on the couch. She told him to take off his pants, which he did. She then performed oral sex on him for about five minutes. The defendant testified that he concluded at that point that they were going to have sex that night.

[44] The complainant then took off all of her clothes and removed the defendant’s pants. He still had his shirt and jacket on, so he took his jacket off.

[45] According to the defendant, the complainant then led him upstairs to her bedroom where they had vaginal intercourse. He took his shirt off and the complainant told him to lie on his back while she got on top of him to continue intercourse. The defendant testified that this lasted about ten minutes before he ejaculated.

[46] The defendant testified that, after he ejaculated, he lay on the bed for a few minutes. According to him, the complainant was not satisfied and told him that she wanted more sex. He said that he agreed, but that he began oral sex on the complainant in order to allow him to “recover”. Once he recovered, he and the complainant went on to have sex in “multiple positions”. The defendant could not recall the order in which the couple changed positions, but testified that they did have anal sex because they had not done it in such a long time and the complainant wanted to engage in it. According to the defendant, he ejaculated a second time, after which they both lay there for about ten minutes talking.

[47] The defendant testified that, while he was on the bed, the complainant’s phone went off. He was curious who it might be because of the time of night. When he checked the complainant’s phone, he saw that another male had contacted her. He was unable to remember the male’s name.

[48] According to the defendant, this upset him, and he threw a “tantrum”. He was unable to recall what he said but testified the couple started to argue in a way that he felt put them right back to where they were before they broke up. He stormed downstairs and got dressed. He took the package containing the iPad and accessories and went to leave. All the while, according to the defendant, the two of them were arguing.

[49] The defendant testified that the complainant stood in front of her doorway and would not allow him to leave. When pressed, he said that he thought that this was because he had a habit of running from conflicts and the complainant wanted to keep him from doing so this time. While they were standing at the doorway, the defendant told the complainant to call the cops because he was drinking and he was going to hurt himself, something which he had tried to do before.

[50] The defendant testified that, in order to leave the apartment, he had to assault the complainant by pushing her into the closed closet. He left the apartment and got back into his truck. He testified that, although he was originally planning on going back to his own home, he went back to his friend’s place in Corbeil to continue drinking.

[51] The defendant denies that he ever refused to leave the complainant’s apartment or that the complainant agreed to have sex with him in order to get him to do so.

The Photographs

[52] At about 4:15 a.m. on the morning of March 12, the complainant took a series of photos of herself using her cell phone. She took other photographs of herself later that day, at about 6:10 p.m. These photographs were later themselves photographed by the police and those photographs have been introduced into evidence.

[53] The photographs show scratches, predominately on the right side of the complainant’s face. According to her, they also show swelling in her nose and her lips. She testified that these injuries were inflicted during the attack upon her by the defendant in the snowbank behind her car.

[54] In addition, the complainant took pictures of the snowbank the next day at about 12:34 p.m., photographs of which were also introduced into evidence. The complainant testified that the photos show the area which she was shoved by the defendant and where the struggle for her keys took place. The complainant testified that she found her keys the next day, I am assuming at roughly the same time the photographs were taken on the opposite side of her car.

The Emails

[55] Not long after the complainant began taking photographs of herself, the defendant began writing email messages to her. The one sent at 4:43 a.m. reads:

B., I have no excuse tonight. I need you to call the police. I need a reason to finally end all of this period. I don’t belong in this world, I’m pathetic and fed up with trying to think that I’m better.

Call the police in the morning, then call me to say they are coming. I need to know that they are coming to finally push myself over the edge.

You were the best.

None of this was ever your fault.

I love you B.,

Take care and move on. Become everything you ever wanted to be. Don’t ever hold my passing against yourself. This was never your fault. You were never the problem. You were always the greatest thing that can ever happen to me and anyone.

Goodbye Forever.

Forever & Always B. xoxo

Preston

[56] The complainant testified that after receiving this message from the defendant, she contacted the police. She did not tell them that she had been assaulted. Instead, she testified that she was concerned that the defendant would try to harm himself and so advised the police.

[57] At 5:33 a.m., the defendant sent the complainant another email, which read:

Why didn’t you bury me? The cops came and did nothing. I did more than enough to be behind bars. You don’t need to try and save me anymore. You made that clear.

[58] The defendant admitted that the police did not actually come to his friend’s home in Corbeil. Instead, he said they went to his own home address and were told by his cousin, who was staying with him, that the defendant was elsewhere. According to the defendant, the police called his friend’s cell phone and spoke to the defendant and his friend to ensure that the defendant would not hurt himself.

[59] In response to the defendant’s email, the complainant responded as follows, at 5:43 a.m.:

I didn’t ask for any of this. I didn’t ask for this night in hell. I just wanted to move on with my life instead I get beat up, forced to have sex with you and the inability to fall asleep without feeling like I can’t breathe, and needing to gasp for air. You don’t realize the trauma you put me through, otherwise you wouldn’t be doing this to me right. You’re sick Preston. You need to get help. Right now[.] You need to tell the cops yourself that you need help, and that you’re suicidal. You put me through enough tonight. So please, make one good decision tonight and turn yourself in or check yourself in to the hospital.

[60] The defendant sent one more email message to the complainant that day, at 6:04 a.m. The relevant portion reads:

Whatever happens don’t you ever fucking hold yourself for granted. Don’t ever believe any of this shit that ever said other than the good things. I told you B., I’m a liar. I had always found a way to hurt the people I cared about most in my life. Don’t ever allow yourself to be a victim of my personal problems.

[61] Although more messages were exchanged between the complainant and the defendant over the next several days, one message in particular was significant, for reasons I will come to. On March 15, at 12:46 p.m., the complainant wrote to the defendant in response to a message he had sent in which he told her he was getting help, included pictures of brochures and medicine, and asked her to get back together with him. The complainant wrote:

The only actions that I have work with right now is this one. And the events that took place after this.

You know what these pictures show me? That this is what happens when I give you a chance. Because that’s what I did. I didn’t HAVE to see you that night. I didn’t HAVE to come outside. I didn’t HAVE to listen to what you had to say. But I did. But look what that got me. Every day someone asked me what happened. I was too ashamed and embarrassed by the truth that I covered it with a lie.

[62] The email refers to two jpeg images being attached. The complainant testified that she attached two of the pictures she had taken of her injuries, although it is not clear which ones. After referring to the photographs, the complainant continued in her email:

I hope you look at these pictures and it’s an eye opener to what you have become in my eyes. I know our history. I know the things we did to one another but I don’t think I ever deserved this. And I will never forget the good things in our relationship and I think that’s exactly why I haven’t gone to the police myself as much as we both know I should.

[63] On March 21, 2019, the complainant did go to the police. The charges presently before me were laid as a result.

ISSUES

[64] There are two issues to be determined, one legal and the other factual:

(1) What use should be made of the emails? (2) Has the Crown met the standard of proof?

[65] I propose to deal with both issues at once in the context of my review of the evidence as a whole.

ANALYSIS

The Governing Principles

[66] The defendant faces four charges:

(1) assault, contrary to s. 266 of the Criminal Code (the “ Code ”); (2) forcible confinement, contrary to s. 279(2) of the Code ; (3) threatening death, contrary to s. 264.1(1) (a) of the Code ; (4) and sexual assault, contrary to s. 271 of the Code .

[67] It is the Crown’s obligation to prove each essential element of these offences beyond a reasonable doubt. The Crown and the defence agree that the offences will all be made out if I accept the evidence of the complainant as to what occurred in the early morning hours of March 12, 2019. The defence concedes that, even if I reject that evidence and accept the evidence of the defendant, the charge of assault is still made out based on the fact that the defendant used more force than was necessary when he shoved the complainant into the closet to make his exit from her apartment.

[68] This is a credibility case. The governing law is clear. I am free to accept some, all, or none of each witness’s evidence: R. v. Tillekaratna, 124 C.C.C. (3d) 549, 1998 CarswellOnt 1726 (Ont. C.A.), at para. 11. Where I accept the evidence of the defendant, he must be acquitted of the remaining offences. If I do not accept his evidence, but I am left with a reasonable doubt by it on any essential element, I must also acquit. Even if I am not left with a reasonable doubt by the defendant’s evidence, I must acquit him of any offence where I am left with a reasonable doubt about an essential element of that offence based on the rest of the evidence: R. v. W. (D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at p. 409; R. v. B.D., 2011 ONCA 51, at para. 96.

[69] The law is also clear that I must assess the credibility of each witness, not in isolation, but in the context of the evidence as a whole: R. v. Hoohing, 2007 ONCA 577, at para. 15; R. v. Hull, 2006 CarswellOnt 4786, [2006] O.J. No. 3177 (Ont. C.A.), at para. 5. To do that, I will address what I view as some of the more important aspects of the evidence, beginning with the date of the breakup and then moving to events occurring outside in the parking lot.

The Date of the Breakup

[70] This is a small thing, but when coupled with the other difficulties I have with the defendant’s evidence, it adds up. Moreover, exactly when the complainant and the defendant broke up is material, as I will come to explain.

[71] I do not accept the defendant’s evidence that he and the complainant split up in November 2018. I find it more likely that the couple split up in February 2019, as the complainant says. It seems unlikely that it would have taken from November to March or so for the iPad to be delivered; that the defendant would have left it at her apartment for that long, if it had been delivered earlier; or that he would have ordered an iPad to be delivered to the complainant’s address months after he left.

The Keys

[72] On behalf of the defendant, Mr. Clark asks me to pay particular attention to the complainant’s evidence about the keys. He submits that the complainant is being untruthful about the fight for the keys because she does not want to admit that she invited the defendant up to her apartment that night, in which case she would have been the one to open the locked outside door.

[73] Mr. Clark urges me to find that the complainant gave an inconsistent statement to the police about the keys. She testified during the trial that the defendant took her keys apart and threw away only the key fob for her car. As Mr. Clark submits, during the interview she gave to the police on March 21, 2019, the complainant did use the word “keys” (plural) which, if true, would have meant that there was no key to open the outside door of the apartment building. However, the complainant also told the police that the key that was thrown was the “key fob for my vehicle”. If there is an inconsistency, I do not see it as being a significant one.

[74] Nonetheless, I do agree that the complainant’s evidence about the keys is weaker than other parts of her evidence. It is hard to understand why it was not strengthened by simply producing the key rings. There is no evidence to suggest that they were no longer available and doing so would have gone a long way to buttressing this important part of the complainant’s evidence.

[75] However, the weakness in this part of the complainant’s evidence is made up for by strengths in other parts of her evidence.

The Photographs

[76] One of those other parts is the photographic evidence. This included photos of both the scene of the struggle for the keys and of the resulting injuries to the complainant. Those photos are consistent with the complainant’s evidence about the struggle. They show layers of frozen snow between layers of softer snow. The injuries are consistent with the complainant having her face shoved into those frozen layers.

[77] The defendant admits that the complainant did not look when he arrived like she did after he left. His evidence of how he shoved the complainant into the closet is not consistent with the injuries seen in the photos. It is also implausible that the complainant inflicted those injuries upon herself. Thus, there is no other explanation for them except for her evidence of the struggle in the snow. And there is no other explanation for the struggle in the snow than the complainant’s evidence that the defendant was after her keys.

[78] I find the complainant’s evidence about the struggle for the keys to be believable in the context of the rest of the evidence. It was the defendant who initiated contact with the complainant. The complainant had gone to the trouble of blocking the defendant’s number and the defendant went to the trouble of disguising his number to get through. That shows a certain degree of desperation, in my view.

[79] Both witnesses testified that the complainant had her cell phone with her. The complainant testified that, before the struggle, the defendant became aggressive when she refused to allow him to come up to her apartment and he asked her if there was someone in there. The complainant’s evidence about the defendant grabbing her phone at the same time as he grabbed her keys is consistent with this evidence and with other evidence given by both witnesses to the effect that they had each reviewed the contents of the other’s cell phone when they were suspicious of one another.

[80] As a final point about the photographs, I find it highly improbable that the complainant would have taken photos of a scene that she had “staged” on the very day of the assault as part of a plan to “frame” the defendant later. There is no evidence that she was motivated to do so at that point in time, or any point in time (see R. v. Jackson, 1995 CarswellOnt 3388, [1995] O.J. No. 2471 (Ont. C.A.), at para. 5). Indeed, the complainant had called the police hours before taking the photos, but told them only that she was concerned about the defendant hurting himself. I am satisfied that her failure to tell them she had been assaulted is explained by her concern for his well-being, as demonstrated by her actions in providing him with a place to live and to stay sober after his release from the hospital in 2018.

The iPad

[81] The defence submits that the complainant’s evidence about the iPad is not credible. Mr. Clark points out that the complainant never told us what happened to it after, as she alleges, the defendant put it on the ground outside in the parking lot. This is true. However, I am not sure she was ever asked about it. I can find no note of it in the examination-in-chief. All that was put to her in cross-examination was the defendant’s version that she left the iPad upstairs.

[82] In any event, I accept the complainant’s evidence about the iPad. It makes sense to me that the complainant would not want the defendant to come upstairs to retrieve it. There is no evidence she had ever tried to rekindle her relationship with the defendant, as he admitted he was trying to do that night. In fact, the evidence is to the opposite effect.

[83] And yet, it also makes sense that the complainant would agree to allow the defendant to pick the iPad up. Although it was early in the morning when the defendant called, the iPad was his and she was up when he did. The best way to get the iPad to the defendant and yet not make it look like she wanted to rekindle their relationship was to agree to allow him to retrieve it, but to give it to him in the parking lot.

The Running Truck

[84] I view the defendant’s evidence about the running truck in much the same way that the defence asks me to view the evidence about the iPad: as a significant flaw in the witness’s evidence.

[85] While it might be understandable that the defendant would leave his truck running when he first arrived at the complainant’s apartment building, it makes no sense that the defendant would leave his truck running if, as he says, the complainant invited him to come upstairs to continue their discussion about their relationship. Based on the photos of the building and the parking lot, the defendant and the complainant were not far away from the defendant’s truck when they were talking. On either version of the evidence, it would have taken the defendant no time to go and shut off the running truck before he went into the building.

[86] If, on the other hand, there had been a struggle for the keys and the defendant was anxious to get into the complainant’s apartment, it makes a lot more sense that the defendant would leave a late model truck running with the keys in the ignition in his haste to get inside.

The Offer of a Drink

[87] Like the date of the breakup, the evidence about the offer of a drink is a small thing but it, too, adds up.

[88] I reject entirely the defendant’s evidence that the complainant offered him a drink when he got into her apartment. This would be in direct contradiction to the evidence of both witnesses that the complainant was instrumental in helping the defendant maintain his sobriety. The defendant admitted in his testimony that the complainant had never offered him a drink before. It is unlikely that she would offer him one that night, especially after he had already been drinking.

[89] I also find it highly unlikely that the defendant would have refused such an offer, opting instead to have water, as he says. By his own admission, he had relapsed and had driven to the complainant’s place while he was likely impaired. Why on earth would he refuse a drink when he finally found himself alone with the “love of his life”, as he wrote to the complainant just before arriving? I find it implausible that he would.

The Emails

[90] I turn now to what I view as some of the most significant pieces of evidence weighing against the defendant’s version of what happened on March 12, 2019, and in favour of that of the complainant.

[91] The email messages introduced into evidence during the trial fall into two groups: those sent by the complainant and those sent by the accused. There is no issue that the emails were sent and received by the complainant and the accused, at the times indicated in each message. The real issue regarding the emails is the use to be made of them.

[92] The Crown urged me to admit the emails as narrative evidence. Narrative evidence is evidence which helps the judge or jury to understand how the charges came to be before the court: R. v. F. (J.E.), (1993), 26 C.R. (4th) 220, at p. 241. The defence did not object to the admission of the emails as narrative evidence and, therefore, they were admitted on that basis.

[93] As narrative evidence, the messages of the complainant are not admissible as proof of the truth of their contents. Their relevance turns on the fact that they were sent, not on their consistency with the complainant’s testimony: R. v. F. (J.E.), 1993 CarswellOnt 137, 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476. However, some of the messages are admissible for more than just their value as narrative evidence.

[94] First, one of the messages has evidentiary value as a contradictory statement made by the defendant. This is true of his message of March 15, sent at 8:12 a.m. In that message, he wrote that he couldn’t believe what he had done to the complainant the other night, saying that he “honestly just thought [she] would enjoy it all”, but that he was wrong. This cannot be a reference, as the defendant suggested during cross-examination, to the assault he perpetrated against the complainant as he was leaving the apartment. He never testified, nor would there be any reason on the evidence to believe, that he assaulted the complainant because he thought she would like it. Therefore, this message contradicts the defendant’s evidence about the consensual nature of the other events that took place in the apartment.

[95] Second, and perhaps more importantly, some of the emails contain admissions by the defendant. The admissions take two forms; one is direct, and the other is circumstantial.

[96] The direct admissions are found in the defendant’s messages sent immediately after he left the complainant’s apartment. At 4:43 a.m., he wrote that he had “no excuse” for what had happened that night and that the complainant should call the police. At 5:32 a.m., he wrote to ask why the complainant had not buried him (to use his term), admitting that he had done “more than enough to be behind bars”. The defendant testified that he was referring to having driven while being impaired. I do not accept that. Based on his evidence, the defendant had recovered his sense of lawfulness at the complainant’s apartment, choosing water over alcohol. I find it implausible that he would be filled with remorse for having driven while under the influence when, according to his evidence, he was likely more sober when he left the complainant’s apartment than when he got there.

[97] The next day, at 10:14 p.m., the defendant wrote to tell the complainant that he was “a complete mess” and that he would be turning himself in to the police the following Monday. This, too, is a direct admission by the defendant of unlawful behaviour. Exactly what unlawful behaviour he was admitting becomes clear when one considers the circumstantial admission.

[98] An admission may be implied from a person’s silence in the face of statements made by others in circumstances where that person could reasonably be expected to respond: R. v. Beauchamp, 2015 ONCA 260, at para. 247. In my opinion, this happened when the defendant failed to respond to the complainant’s message of March 15 at 12:46 p.m. In that message, she accused the defendant of injuring her when they were outside in the parking lot. She did that by including photos of the injuries she had sustained at the hands of the defendant. The defendant and the complainant had been corresponding since the incident and he had shown a willingness to accept responsibility for his actions, at least for a while. It is reasonable to expect, therefore, that the defendant would have denied the complainant’s allegations if they went beyond the scope of the actions for which he was willing to accept responsibility.

[99] And yet, he did not. He did not deny any of the complainant’s allegations. Instead, he attacked her for attacking him. He wrote, among other things:

It’s sad you want to be alone in life. You know what? Go after all your Quebec guys…Just promise me that this is the last time you will ever talk to me…You deserve to feel as shitty as I do.

[100] This response brings me to the last reason the emails are valuable as evidence beyond the narrative. In particular, the emails show two things about the defendant’s character.

[101] First, as the Crown submits, the emails demonstrate the defendant’s tendency to react angrily in the face of opposition. They demonstrate that the defendant was capable of going from contrition to confrontation within a short period of time. The emails lend support to the complainant’s evidence that the defendant became angry and violent when she refused to invite him up to her apartment.

[102] Secondly, the emails show the defendant’s willingness to bend the truth. For example, in an email sent on March 14 at 10:14 p.m., the defendant told the complainant that he had lost his job. He admits that he did not. In another message sent on March 15 at 12:06 p.m., the defendant wrote that he had “told them everything…they will charge me right now as long as you make the call”. In his evidence, the defendant said that he was referring in that message to the police and admitted that it was a lie.

[103] Indeed, the defendant admitted he was a liar in one of his messages. On March 12 at 6:04 a.m., he wrote “I told you B., I’m a liar. I had always found a way to hurt the people I cared most about in life.”

[104] I agree with that statement as it relates to the complainant.

CONCLUSION

[105] For these reasons, I reject the evidence of the defendant and accept the evidence of the complainant.

[106] Based on that evidence, I find the defendant guilty of all four counts on the indictment.

M.G. Ellies R.S. J.

Released: March 8, 2022