Publication Ban Warning
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
Court File and Parties
Court File No.: CR-21-15505 Date: 20220427 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – J.M. Defendant
Counsel: Frederick Stephens, for the Crown Sevag Yeghoyan, for the Defendant
Heard: April 19, 20, 21, 22, 2022 in person
Justice C. Verner
Endorsement
1J.M. stands charged with sexually assaulting his former wife K.B. on two separate occasions and threatening her on a third. The complainant testified that after their relationship ended J.M. forced intercourse on her twice and once threatened her with death.
2After she testified, the threatening count was amended without objection to reflect her testimony that the threat was not committed in the Town of Scugog, but instead in the Town of Whitchurch-Stouffville.
3J.M. testified that all of the allegations were completely false. There was no issue of consent. The Defence framed the issue as to whether the complainant fabricated the allegations altogether. The complainant and J.M. were the only two witnesses who testified at trial.
Background
4J.M. and K.B met in 2012. At that time K.B. had a 4-year-old daughter named M.B. from a former relationship. J.M. and K.B. married in September, 2014 and they had a daughter of their own M.M. on May 25, 2016.
5When M.M. was born, the couple agreed that although J.M.’s mother would not come to the hospital to see the baby, the couple would take the baby to see her paternal grandmother when M.M. was two weeks old. However, when the day came to take M.M. to meet J.M.’s mother, K.B. did not want to go. J.M. offered to take the newborn to see his mother without K.B.. K.B. would not let J.M. take M.M. without her, since she did not trust J.M. to watch his mother, who was addicted to pain medication, with their baby. Both parties became extremely upset. Police were contacted. K.B. alleged that J.M. was attempting to “kidnap” their daughter. No charges were laid. J.M. ended up going to his mother’s home alone.
6In the summer of 2017, K.B. and J.M. got into another heated argument. K.B. wanted J.M. to leave the home. He refused to go. K.B.’s family came over and asked him to leave. He still refused to go. K.B. called police. The police told K.B. that they had no authority to force J.M. to leave the home he was living in. K.B. was disappointed with the inaction of the police. She took her two daughters and went to stay with her brother. She stayed for less than two weeks before returning to live with J.M..
7According to J.M., K.B. sent him photos via text message in mid-January 2018, which showed burns on their daughter’s hands. M.M., who was not yet two years old, had put her hands on a hot wood stove and had a line of blisters across her fingers. According to J.M., K.B. was home alone with M.M. at the time. The photos were made an exhibit at trial. K.B. was equivocal as to whether the photos depicted her daughter’s hands. She had no memory of her daughter being burnt. However, she admitted that items in the background of the photos appeared familiar and she did not deny the possibility that they were her daughter’s hands and that she may have forgotten about the burns. I accept J.M’s testimony that those were in fact M.M.’s hands.
8On January 31, 2018, the couple had a third significant disagreement. The complainant testified that J.M. was pushing her up against a counter in their kitchen while she was pregnant with twins. He pushed her very hard. She was eight weeks pregnant. Although it had not been confirmed at that point that she was pregnant with twins, she “knew in her heart” that she had twins at that time. According to the complainant, she “tapped” J.M. on the face to let him know to back up.
9When J.M. was asked about this incident. He testified that the complainant had her hands around his throat, hit him in the face, kneed him in the groin, threatened him with death and that she swiped a number of his expensive electronics off of a desk and onto the floor. He also testified that she threatened to call police and allege a false assault.
10J.M. was the one who ended up calling police. According to J.M., he called police to prevent her from making a false report of assault. K.B. corroborated his testimony that he was the one who called police and his testimony that he was not seeking to have her charged with criminal offences when he did. She further testified that J.M. asked the 911 operator to send specific police officers and she believed the operator fulfilled his request, since she recognized the officers who came that evening from the incident in the summer of 2017.
11Despite J.M.’s wishes, the complainant was charged with mischief, threatening and assault. The complainant testified that the police brought her to a police station and held her for five hours in a cell. She testified that at the station, she made a statement to a police officer, in which she said that J.M. had been abusive and had “forced himself on” her during their relationship. J.M. was never charged with any offences. After being held for five hours, the complainant was released with the condition that she was not to have any contact with J.M. pending her trial.
12That day, January 31, 2018, was the date of the final separation between J.M. and the complainant.
13After the complainant was released from the police station, she and her two daughters moved in with her brother. For the first few weeks, the complainant abided by her condition not to contact J.M. directly and the couple communicated through the complainant’s mother. They arranged for M.M. to live with the complainant during the week and to stay with J.M. from Friday to Sunday. The complainant’s mother did all of the pick ups and drop offs during that period.
14The Children’s Aid Society (the CAS) was notified as a result of the children being involved in the January 31, 2018 incident. During the investigation, K.B. told the CAS worker that her daughter M.B. had been “molested” by J.M.’s nephews. In particular, she told the CAS worker that J.M.’s nephews, who were younger than M.B., cornered M.B. in a basement in December, 2017 and asked her to show them her vagina. To the disappointment of K.B., the CAS did not take any action as a result of the allegations.
15In February, the complainant decided, without consulting or informing J.M. to have an abortion. J.M. was not even aware that K.B. was pregnant with twins, until after the abortion.
16After complying with her release order for a number of weeks, the complainant, who wanted to resume a relationship with J.M., started to talk to him directly. J.M. and the complainant started to do the pick ups and drop offs themselves. Around that time, J.M. convinced authorities to withdraw the charges. On April 13, 2018, the complainant entered a peace bond which allowed her to communicate directly with J.M., so long as she ‘kept the peace’.
17When M.M. returned home to the complainant one Sunday after a weekend with J.M., she told the complainant that J.M.’s 10-year-old nephew (who was one of the nephews who had cornered the complainant’s other daughter M.B.) touched her inappropriately. Specifically, the complainant testified that M.M. told her that J.M.’s nephew had kissed her vagina.
18According to the complainant, when she told J.M. about the incident involving M.M. and his nephew, J.M. became angry and accused her of fabricating the allegations. She interpreted his actions as taking his “nephew’s side” over his “daughter’s side”. His response was the “last straw” for her. That day, she contacted the CAS, the police and a lawyer. She had no confidence the authorities would do anything to protect M.M.. She intuitively knew that the CAS would close the case without taking any action. She was correct. They did so in April of 2020, if not before.
19According to both parties, up until the spring of 2019, they had a pleasant parenting relationship. They did not have a formal parenting schedule, but pursuant to an informal agreement J.M. saw his daughter on weekends. However, in the spring of 2019, the complainant met her now fiancé D. and, according to J.M., everything changed on that day. The complainant was no longer pleasant or reasonable with him. He testified that the complainant and D. kept M.M. in their care and refused to allow J.M. any parenting time for a number of weeks. J.M. was forced to bring a motion in family court in order to resume his weekend visits. He now has M.M. on weekends as he did before.
20The complainant disclosed the allegations that are before the court to D. This was the first time she disclosed them to anyone.
21D. introduced the complainant to his criminal lawyer, Lawrence Liquornik, who also did family law. By early 2020, the complainant had retained Mr. Liquornik to represent her in her family law proceedings. D. told Mr. Liquornik about the allegations, and the complainant testified that it was this lawyer who encouraged her to report her allegations to police. 1 According to her testimony, Mr. Liquornik suggested that it was not good timing to make such allegations in light of her outstanding family law issues. She was not asked to explain, nor did she offer any further detail as to why her lawyer thought it would be bad timing.
22The complainant testified that she would not have disclosed the allegations if it was not for the advice of her counsel. However, with his advice, she went to the Oshawa police station to make a report. They directed her to report the allegations in Port Perry. On a later date, namely March 3, 2020, she went to the Port Perry police station and reported the allegations that are now before the court.
23The family court proceedings are still outstanding.
The Complainant’s Allegations
Count One
24As noted above, the complainant started communicating directly with J.M. in early spring 2018 and the parties started doing the drop offs and pick ups themselves around that time. One Friday, in the spring of 2018, according to the complainant, when she dropped their daughter off at the door to J.M.’s third floor apartment, he met her at the door. He told her to wait there as he took two-year-old M.M. into her crib in her room. The crib was against the wall immediately beside her bedroom door. He left M.M.’s door open a crack. He went to the front door and asked the complainant if she wanted to have sex multiple times and multiple times she refused.
25She could not remember how exactly she got to his bedroom, but she deduced that he must have pushed her or dragged her there. She remembered struggling. On route to his bedroom, they passed by M.M.’s door. She said that as she was passing the door, she noted that M.M. had a tablet in her hands.
26Once in J.M.’s bedroom, the complainant continued to struggle and fight him “really hard”. She knew he wanted to penetrate her from behind, so she kept trying to turn and face him. Despite her struggles, he pushed her face first onto the bed, such that she was bent with her legs over the end of the bed. He held her bent arm up high on her back, which was quite painful. She continued to struggle and used her one free hand to try to keep her pants up. She told him “no”, but she did not raise her voice as she was conscious of their daughter in the next room. He said, “This is happening” and used his free hand to get her pants down. At one point, she kicked him in the chest area and broke free from his grasp momentarily. However, he was able to quickly grab her arm again. She feared he was going to break her arm. She struggled as he got her pants down, as he got his pants down, as he spit in his hand for lubrication and as he penetrated her vaginally from behind. After he penetrated her, she went limp. She did not believe that he ejaculated in her.
27She could not remember the details of whether they wiped or cleaned themselves off after the assault, nor did she remember the details of them putting their pants back on. She remembered that as she left out the front door, he said “sorry”. Thereafter, she acted as if it had never happened.
Count Two
28The complainant testified that J.M. sexually assaulted her a second time in the fall of 2018. One Sunday, after a weekend visit, he brought M.M. back to the complainant’s house. He ran up the stairs quickly with M.M. and put her in her crib. He ran back downstairs and asked the complainant if she wanted to have sex. After she said “no”. He said, “This is happening” and threw her over his shoulder. He started up the stairs towards her bedroom. She grabbed the railing and she almost fell off his shoulder. He said, “That was close” and chuckled.
29J.M. then carried her into her bedroom. He threw her face down on her bed. He held her bent arm up high on her back. She struggled as he pulled down her pants, as he pulled down his pants and as he penetrated her vaginally from behind. She went limp after he penetrated her. As she noted, the two assaults were very similar in nature.
30She could not remember the details of what happened after he penetrated her. After he left, she acted as if it never happened.
Count Three
31The complainant alleged that in the summer of 2019, J.M. told her that if she got between him and M.M., he would “kill” her. The threat scared her. However, she did not explain why she was fearful or what she believed he may do. She did not remember anything else that was said during that conversation. She did not remember what led him to make that statement. She did not describe what was going on between them around that time, nor did she describe his tone of voice as he made the threat.
J.M.’s Testimony Regarding the Allegations
32J.M. testified that all three allegations were false. He testified that he never had sex with the complainant from behind while holding her arm up high on her back. He testified that he was never kicked in the chest by the complainant. He never had sex with her after she said “no”. He never said “sorry” after sex. He never carried her up a set of stairs over his shoulder. He never threatened the complainant. And he never said that he would kill her if she got between him and M.M.. According to J.M. the allegations were all fabricated.
Analysis
A. The Sexual Assault Allegations
The Legal Principles
33With respect to the alleged sexual assaults, the two witnesses gave diametrically opposed versions of events. One of them is not telling the truth. However, my job is not to assess which one of them is being truthful. Instead, I must assess whether I find the complainant’s evidence proves the allegations beyond a reasonable doubt. The appropriate approach to evidence in such cases was articulated by Cory J. in W. (D.), [1991] 1 S.C.R. 742 as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
34Although I must acquit if I believe the accused, I cannot consider his testimony in isolation. His testimony must be considered in light of the evidence as a whole and even if his testimony has no apparent weaknesses on its face, it is still possible that his evidence will not raise a reasonable doubt in the context of the case as a whole. Justice Doherty applied this principle in the following passage of R. v. J.J.R.D. (2006), 218 O.A.C. 37:
The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
35This principle from J.J.R.D. is particularly relevant where, as in the case at bar, the accused has given a blanket denial to the allegations.
Application of the Principles
(i) The Complainant’s Testimony
36In the case at bar, I found that the complainant came across as genuine. She was emotional periodically throughout her evidence and needed several breaks to continue. Both counsel noted that she was not careful in answering the questions. She answered the “gist” of the questions, but was not necessarily accurate in her details. I generally found her to be believable.
37Through his counsel, J.M. asked me to find that the complainant was evasive. However, I did not find her to be evasive. The one example of evasiveness that counsel pointed to was the complainant’s testimony regarding whether she “reported” to a police officer on January 31, 2018 that J.M. had forced himself on her. She denied that she “reported” that he forced himself on her, but agreed that she “shared” that information with the officer. She later explained that she differentiated “reporting” the allegations, from simply informing the police about them. This distinction in her mind explains what may have appeared to be evasiveness.
38J.M. also asked me to find that the complainant’s explanation for the delay in disclosing the allegations was implausible. She testified that she did not come forward with these allegations earlier, because she knew that J.M. was smart and persuasive and she did not want to be “up against him” in court. J.M.’s counsel pointed out that she had not hesitated to report physical abuse by J.M. in the past. He argued that she was therefore clearly lying when she testified that she did not report these allegations out of fear of being “up against him” in court. However, I cannot find that her explanation was a lie. The decision to disclose physical assaults is very different from the decision to disclose sexual abuse. She may very well have weighed the relevant factors differently in assessing whether to disclose the sexual abuse.
39J.M. asked me to find that the gaps in the complainant’s testimony were such that it rendered her testimony incredible. However, I find that she gave quite a bit of detail with respect to the logistics of the assaults, and I also find that the gaps that she did have, were consistent with her evidence that she was intentionally trying to forget these events. As she repeatedly said, she had no need to remember the details as she had no intention of disclosing the allegations before she spoke to her family lawyer in 2020.
40J.M. asked me to find that her evidence was internally inconsistent. However, I found quite the contrary, that despite the fact that the complainant was not being careful with her evidence, she maintained the same story and same details throughout her testimony. The only prior inconsistency that was put to her, was the fact that prior to cross-examination, she had never mentioned that J.M. spit in his hand for lubrication. To be clear it was not an inconsistency, but an omission in her statement to police and in her evidence in chief. I do not find that omission to be significant. Notably, the first time she was asked about lubrication was in cross-examination. It is quite possible that the fact J.M. spit in his hand had escaped her memory, but that when Defence counsel asked her specific questions about lubrication, the questions jogged her memory.
41Although I do not agree with many of J.M.’s submissions regarding the potential weaknesses of the complainant’s testimony, I do agree that there were some issues with the Crown’s case, including:
(i) The plausibility of the complainant’s evidence that while she was struggling on route to J.M.’s bedroom, knowing he was trying to “rape” her, she saw M.M. holding a tablet through the slats in the crib; (ii) The plausibility of her evidence that on January 31, 2018, J.M. asked the 911 operator to send specific police officers to their home; (iii) The plausibility of her evidence that she did nothing more than “tap” J.M. on the face on January 31, 2018, yet she was charged with multiple offences and held in custody for five hours while pregnant; (iv) The plausibility of her evidence that she told police on January 31, 2018 that J.M. was abusive and had forced himself on her throughout their relationship and yet no charges were laid against him; and, (v) The plausibility of her evidence that she has no memory of serious burns on her daughter’s hands, when her daughter was less than two years old.
42I will now address each of the five problematic areas individually.
43First of all, I find that the complainant’s version of the first sexual assault is weakened by her evidence as to whether her daughter was holding a tablet. In chief, the complainant testified that J.M. came to the door that day, took M.M. to her crib and gave M.M. a tablet. The complainant further testified in-chief that she had little memory of how she got from the front door to J.M.’s bedroom. In cross-examination, she was asked how she knew that J.M. gave M.M. a tablet, since she could not have seen M.M. from the front door of the apartment. The complainant explained that she saw M.M. sitting with a tablet on route to J.M.’s bedroom, which would mean that she saw M.M. holding a tablet through the slats in the crib at a very tight angle to the door, all while she was struggling to avoid being “raped”. This evidence was somewhat inconsistent with her earlier evidence that she had little memory of what happened between the front door and J.M.’s bedroom. It also meant that J.M. left M.M.’s door open a crack, knowing that he was about to have intercourse – with or without the complainant’s consent – in the next room. Although, this aspect of the complainant’s testimony is possible, the way the evidence came out in cross-examination made it somewhat unlikely.
44Second, the complainant testified that when J.M. phoned police on January 31, 2018, he requested that the 911 operator send specific officers. She further testified that the operator adhered to his request and sent the officers that had dealt with a previous dispute. Although, it is quite possible that the same officers responded on two different occasions, I find it at least somewhat implausible that he would have asked for the same officers to attend and that that request would have been complied with.
45Third, she testified that while pregnant she was held in a cell for five hours, charged with assault and asked to enter a peace bond before the Crown would withdraw the assault charge, when all she did was tap J.M. in the face when he was the one pushing her hard against the kitchen counter. To be clear, she did not say that was all she did, but she implied that it was. When asked if J.M. had any injuries from that incident, she responded, “Not that I recall. No”. However, she admitted that there were photos of injuries on him in the disclosure she received in relation to that assault charge. She did not mention in her testimony doing anything to his property.
46When J.M. was asked about the same incident, he testified that the complainant assaulted him and left him with minor injuries; that she threatened him; and that that she swiped a number of his expensive electronics off the end of a desk and onto the floor. The complainant’s version of events regarding what led to her arrest does not correspond with how she was treated by police. J.M.’s version of events is much more plausible and puts the complainant’s testimony on this issue into question.
47Fourth, I find it unlikely that she told a police officer that J.M. had been abusive and had forced himself on her during their relationship, and yet she was charged with multiple offences and he was charged with nothing.
48Fifth, I also found her evidence that she had no memory whatsoever of the burns on her daughter’s hands as problematic. The photos that were entered as an exhibit reveal that their daughter suffered serious burns. Although it is possible she has no memory of those burns from four years ago, it seems likely that they are serious enough burns on a one year old girl that a mother would remember.
49It is the combination of these five implausibilities, that puts the complainant’s credibility somewhat into question. I add that I found it somewhat troubling that the complainant claimed that one aspect of her testimony was completely true. When Defence counsel implied in a question that she had intentionally burned her daughter’s hands, she abruptly responded, “100% this never happened. I will do a polygraph if you need me to. That never happened. [J.] is lying.” I do not put much weight on this response, as the allegation of child abuse clearly and understandably upset her. However, to the extent that she fiercely emphasized that one aspect of her evidence was true and in that area J.M. was lying, it did make me question whether the other aspects of her testimony were equally credible.
(ii) A Possible Motive to Fabricate
50In addition to the weaknesses in her testimony, the Defence also raised the issue of a possible motive to fabricate. Although the Defence need not prove such a motive, evidence of a possible motive is a relevant factor in assessing whether the Crown has proven the allegations beyond a reasonable doubt (R. v. L.L., 2009 ONCA 413).
51I agree with the Defence that the timing of the disclosure suggests that the complainant may have disclosed the allegations to assist her with her family law proceedings regarding parenting time. The complainant repeatedly and strenuously emphasized in her testimony that she had serious concerns about J.M.’s nephew being around M.M. and for that reason, she was concerned about J.M.’s parenting time. The allegation involving J.M.’s nephew had already been investigated and rejected by authorities. She therefore could not rely on that allegation to protect M.M.. Moreover, the complainant had made allegations of non-sexual wrongdoing by J.M. himself, which had not assisted her in preventing J.M. from having parenting time. Thus, it is possible that she fabricated the allegations to assist her with her family law issues.
52It was notably when she was discussing these family law proceedings with a lawyer that she decided to report that she had been sexually abused by J.M.. If she was successful in proving such allegations, J.M. would likely be sent to custody for a lengthy period of time, which would clearly assist in protecting M.M. from J.M.’s nephew. In other words, the timing and circumstances of the disclosure of the abuse support a finding that she had a motive to fabricate.
53Crown counsel pointed out that the complainant testified that she had a motive not to report the allegations. In particular, the complainant emphasized that she feared “going up against” J.M. in court. However, although there was evidence that she had a motive not to fabricate, that evidence does not detract from the evidence that there was indeed a possible motive to fabricate. (R. v. L.L., supra at para. 45).
(iii) Summary of My Findings with respect to the Complainant’s Evidence
54In summary, I found that the complainant came across as genuine. For the most part her testimony was believable. I did not find her to be evasive, nor did I find there to be significant inconsistencies in her testimony and finally, I did not find the gaps in her memory to impact her credibility. On the other hand, there were some areas of her testimony that came across as implausible or that were suspicious in how they came out in cross-examination. In addition, the circumstances of her disclosure support a finding that she had a motive to fabricate.
(iv) J.M.’s Testimony
55Turning now to J.M.’s testimony. I start out by noting that genuine is not a word I would use to describe his demeanour. He was stoic and matter of fact. He showed little emotion. He was extremely well prepared and came across as somewhat rehearsed. However, when he was responding to what had to be unexpected questions in cross-examination, he had the same demeanour. I therefore find that J.M. was simply being very cautious in his answers and intentional in his language. This is not surprising given the serious nature of the allegations that are before the court and the potential consequences of those allegations.
56J.M. was clear and consistent in his denial of the alleged offences. He was not shaken in cross-examination. Crown counsel suggested that he went on tangents in many of his answers. However, I simply found him to be saying his thought process out loud and adding facts that he believed may be relevant. Crown counsel himself did not suggest that J.M. was being evasive. In the end, there were no significant inconsistencies or weaknesses with J.M.’s evidence. However, as pointed out by the Crown, in providing what was essentially a blanket denial, there was little to cross-examine on and not much detail that he had to keep straight.
Conclusions Regarding Counts One and Two
57If I had to say which of the two witnesses I believe, it would not be an easy task. The complainant came across as believable, she testified over two days and was consistent in her evidence throughout, but there were some plausibility issues with her testimony and she had a motive to fabricate. J.M. came across as less genuine and he had few details to keep straight, but there were no significant weaknesses with his evidence. In short, I am not sure which one of them is telling the truth. However, that is not my task. In fact, when it is unclear after a reasoned analysis, which of the parties I do believe, it is clear what the verdict must be.
58I have a reasonable doubt as to whether J.M. sexually assaulted the complainant and I therefore find J.M. not guilty on counts one and two.
B. The Threatening Count
59Now, with respect to the count of threatening, the Crown must prove that J.M. threatened the complainant with death and that he either intended that the death threat would be taken seriously, or intended to intimidate the complainant through that threat. (R. v. McRae, 2013 SCC 68 at paras. 17-23). The circumstances surrounding the threat are significant in assessing whether the Crown has proven the required intent.
60In the case at bar, I know very little about the surrounding circumstances. If I believe the complainant, I know that J.M. threatened over the phone that he would “kill” the complainant if she got between him and M.M. and I know that the threat scared her. However, I do not know what lead to the threat, nor do I know his alleged tone.
61I note that people often use the expression “I will kill you if you do x” to convey that they would be very angry if the other person did “x”, rather than as a threat per se. During oral submissions I used an example of a male angrily yelling during an argument, “I will kill you if you give my football tickets away”. In my example the declarant was not intending for the death threat to be taken seriously, nor was he intending to intimidate. He was simply trying to convey that he would be very upset if the football tickets were given away.
62I would need further detail than that given by the complainant in her testimony before I could conclude beyond a reasonable doubt that, assuming the complainant is telling the truth, J.M. intended to be taken seriously or intended to intimidate when he made the threat of death.
63Moreover, I note that both parties recognized that the complainant was not careful in the details of her testimony. I found her evidence regarding the threat to be particularly imprecise. Thus, even if there was some evidence upon which to prove intent, I would not be able to find that the alleged threat was in fact made.
64I therefore find J.M. not guilty on count three.
Justice C. Verner Released: April 27, 2022