BACKGROUND

[1] The complainant, K.B., is now 39 years old and works as an executive assistant at a Toronto area software company. She had a romantic relationship of more than three years with the defendant, T.A., also 39, who was working as a deliveryman for Leon's Furniture and was the father of a 13-year-old son, with whom he did not reside but whom he saw regularly. The defendant lived in a basement "walk-out" apartment with two roommates and had a bedroom of his own. His apartment is where the key events in the case took place.

[2] The complainant was the only witness called by the Crown. She alleged that on October 19, 2017, a Thursday, when she visited the defendant's apartment to discuss an episode of what she considered infidelity on his part, he confined her as she was trying to leave, held her on his bed, choked her, and placed a knife to her throat while attempting to force intercourse upon her. The Crown relied on text messages between the complainant and the defendant in the hours following the encounter, along with photographs of her injuries and damaged clothing, to support her allegations.

[3] The defendant testified that there was a physical altercation between himself and the complainant but said that it was a mutual "tussle" over possession of his cell phone, not a sexual assault. The defence called an additional witness, V.K., the woman whom the defendant had recently been seeing and who received a phone call from the defendant and the complainant during the events at his apartment on October 19.

[4] The defendant is charged with six offences under the Criminal Code, R.S.C., 1985, c. C-46, arising from this evidence:

(1) Sexual assault with a weapon, contrary to s. 272(2);

(2) Assault, contrary to s. 266;

(3) Assault with a weapon, contrary to s. 267(a);

(4) Forcible confinement, contrary to s. 279(2);

(5) Breach of recognizance, contrary to s.145(5.1), based on having contact with the complainant, which was prohibited by an undertaking arising from an earlier charge;

(6) Choking to enable the commission of a sexual assault, contrary to s. 246(a).

[5] In an exchange with both counsel following the Crown’s opening statement, it was clarified that a conviction on count 3 for assault with a weapon would be appropriate only if the sexual dimension of the assault alleged in count 1 was not proved; it is essentially an included offence of the charge in count 1 repeated as a separate count. It was also clarified that the assault in count 2 and the forcible confinement in count 4 relate to the alleged dragging of the complainant into the defendant’s bedroom and the holding of her on the bed after she tried to leave the apartment. Count 6 relates to the allegation that the defendant choked the complainant to enable his attempt to force sexual intercourse on her.

[6] Crown counsel agreed in closing argument that the bundle of documents it filed, on consent, as Exhibit 1 in the trial, failed to establish that the defendant had entered into an undertaking prohibiting his contact with the complainant, as no undertaking was included in the exhibit. The Crown invited me to dismiss count 5, and I do so.

THE CROWN EVIDENCE

The Complainant’s Testimony

[7] The complainant testified that earlier in the week of the events giving rise to the charges, she appeared at the defendant's apartment unannounced, with a breakfast intended to surprise him. The complainant recalls this as a Monday, which would be October 16[^1]. She entered that morning without knocking and saw a woman, now known to be V.K., in his bedroom. The defendant came out of the bedroom, asking the complainant why she was there. An angry conversation followed.

[8] The complainant departed, she testified, in a state of anger and disbelief at the defendant's unfaithfulness. In her perception, though they may not have been in each other's company for some weeks—she was uncertain of this—they were very much a couple at that point. The complainant acknowledged strains in their relationship, saying that the defendant wished to meet her family and marry her, while she kept him at a distance because conflicts between them made her unsure of their future. The fact that she had a husband, from whom she was separated but not divorced, bothered the defendant. The defendant was, the complainant testified, on bail due to an assault against her on Toronto Island the year before. They had continued to see each other despite conditions which she understood prohibited him from contacting her. The complainant expressly denied that the relationship had already ended, or that she and the defendant were not a couple, on the date of this incident.

[9] The complainant and defendant remained in contact after the breakfast confrontation and discussed the terms on which the relationship could be salvaged. The complainant wanted to examine the defendant’s cell phone for text messages, the absence of which could confirm that his relationship with V.K. had ended. On the evening of October 19, she went back to his apartment for that purpose.

[10] The defendant allowed her to look through the WhatsApp application on his phone in his bedroom. She saw no signs of communication with V.K. and inferred that the majority of the messages in the application had been deleted. She then asked the defendant to delete the WhatsApp application from his phone in its entirety and reinstall it. She believed that doing this would restore access to at least 24 hours of deleted messages and provide her with the certainty she was seeking about the defendant's communications with V.K..

[11] The complainant testified that the defendant refused to delete and reinstall the app. She responded by saying, "forget this, I'm leaving," and walking toward the apartment's exit, a sliding glass door. Before she got to the door, the defendant grabbed her from behind, pulling her hair and her jacket. He said she was "not going anywhere" and dragged her into the bedroom and threw her onto the bed.

[12] At this point, the defendant got on top of her, straddling her with his legs, and began to strangle her with both hands around her throat. She found it difficult to breathe and she was not able to speak at all, though she did not lose consciousness.

[13] The defendant then began to take off her clothing, removing her leggings, and pulling at her top over her resistance. This caused her bra to break. The defendant then picked up an X-Acto knife, with a retractable razor blade, which had been on top of an item of luggage beside his bed. He brandished the knife at different points during the assault that followed, over a period that she estimated at 10 to 20 minutes. While holding the knife, he told her to remove her shirt, which she did. During the assault, he also rubbed her legs and rubbed the makeup from her face with his hands. He removed a wig from her head. During these events, the defendant took off his own clothing, leaving both of them naked on the bed. The blade of the knife, the complainant said, was at times in contact with her throat.

[14] The complainant testified that the defendant attempted to open her legs with his hands during this assault. She "squirmed" to resist him. She told him that he would have to cut her with the knife because she was not going to submit to his attempt to have intercourse.

[15] According to the complainant, the defendant stopped attempting to have intercourse and then decided to call V.K. The call occurred while he was still on top of the complainant, holding her down. The purpose of the call was to have V.K. confirm that her relationship with the defendant was over. He was holding the knife and the phone in his hands throughout the call, which took place over speaker phone so they could both hear it.

[16] In the call, the complainant testified, the defendant asked V.K. if the relationship was over and the complainant quizzed her about whether she and the defendant had used a condom during sex. She agreed in cross-examination that she may also have asked if the defendant had performed oral sex on V.K. The complainant agreed that she may have spoken aggressively, in a raised voice, and used profane language toward V.K. during the call. She accepted in cross-examination that she did not express fear to V.K. or describe the situation she was in with the defendant. The complainant did not tell V.K. that she and the defendant were broken up but agreed that the defendant referred to her at one point in the call as his "ex". V.K. said in the call that she had believed the defendant and complainant's relationship to be over. The complainant acknowledged a small contradiction between her trial evidence, where she said she and the defendant were on top of the bed covers, and her preliminary inquiry testimony where she could not recall their position.

[17] On the complainant's account, the call to V.K. marked the end of the defendant's violence against her. The two lay on the bed together, both still naked. He turned on the television and they watched it for an hour or two. Shortly before she left, the defendant performed oral sex on her. She testified that she did not welcome this and did not communicate consent to it, though she also did not say no to it when he asked her.

[18] In both her direct evidence and cross-examination, the complainant was questioned about her thoughts and feelings during the period following the phone call and before her departure. She explained that there had been other incidents of abuse during her relationship with the defendant and that over time she had learned that if she remained calm with him and did not fight back or become upset, he would relax and she would be able to leave peacefully. She said that at one point during the phone call, she had tried to leave and he had raised his X-Acto knife.

[19] The complainant was able to go home without further incident after the oral sex. She left at about 11:15 p.m. The defendant asked her to call him when she arrived home.

Text Messages on October 19-20, 2017

[20] When the complainant arrived home at 11:30 p.m., she sent a text message to the defendant: "Im home." He responded directly: "I called u why didn't u answer ... I asked for u to call [his nickname for her in the texts]." Her phone recorded that he had called her at 11:28 p.m., two minutes before her text to him.

[21] Her response was, "I wasn't near my phone ... Im tired." He said (in the first complaint of physical pain by either of them after the altercation), "I'm going to bed my neck hurts ... Goodnight." She answered, "Night," and then: "Do u feel bad?" to which he responded, "About"—apparently a question. She wrote "Never mind" and "Night” but 11 minutes later added, "Im upset ... Very upset." His answer, "About what now?" was the last text of the night.

[22] The text messages continued early the next day, October 20. They were all preserved in police photographs of the complainant's phone, which were entered as Exhibit 3. The verbal content of the exhibit is attached as an appendix to my reasons. I will discuss the exchanges in more detail later in my judgment but will summarize some of the themes in them here:

• When the complainant said that she was in pain, and the defendant twice more mentioned his pain, she said: "I didn't hurt u ... Its not the same" (5:28 a.m. to 6:03 a.m.).

• The complainant insisted that the defendant should repay her for her torn clothing and provided detailed information on the cost of her leggings, hoodie, and bra. He agreed that he would pay her back while stressing that he could not do so immediately (6:14 a.m. to 7:23 a.m.; 11:05 a.m., 5:08 p.m., 5:27 p.m.).

• The complainant made specific and repeated accusations about assaultive behaviour by the defendant, apparently referring to the night before. The behaviour included his beating her (9:11 a.m., 5:12 p.m.); choking her (5:37 a.m., 7:15 a.m., 4:53 p.m., 5:12 p.m.); destroying her things (7:15 a.m., 7:22 a.m., 7:24 a.m., 9:12 a.m.); leaving marks on her body (7:25 a.m.); holding a knife to her throat (5:12 p.m.); pulling off her hair (8:27 p.m.); and taking off her makeup (8:28 p.m.).

• The defendant did not respond to any of these assertions individually. After a series of accusations that he had choked her, hit her, and held a knife to her throat, almost 12 hours into the day’s exchanges, he texted “Smh [nickname] really.” “Smh” means “shake my head,” which I understand to be an expression of puzzlement or exasperation that is argued to be, in this instance, a denial of the complainant's claims (5:12 – 5:19 p.m.). At other times, he apologized or expressed regret for his conduct (5:31 a.m., 8:57 a.m., 11:05 a.m., 4:58 – 5:00 p.m.).

• Throughout the exchanges, there were expressions of anger or sadness from the complainant that the defendant did not love her and had mistreated her (7:15 a.m., 7:24 a.m., 7:26 a.m., 8:58 a.m. – 8:59 a.m., 9:11 a.m., 4:56 p.m.); that he had cheated on her (7:16 a.m., 9:11 a.m., 5:13 p.m.); and that he was not sorry for his misconduct toward her and did nothing to make up for it (8:57 a.m., 8:59 a.m., 9:11 a.m., 10 a.m., 4:56 p.m., 5:08 p.m., 5:19 p.m.).

• At some points the defendant expressed regret or contrition in response to the complainant's assertions about his behaviour toward her, while at other points he suggested that he had said or done all he could to make things right between them and was willing to do more in the future (9:08 a.m., 11:03 a.m., 11:05 a.m., 5:08 p.m., 5:27 p.m.).

• The complainant asked the defendant if his violent behaviour toward her the night before had been motivated by sexual desire and whether hurting her would "turn you on," since he had "wanted sex the whole time." He called this a "dumb ass foolish" question, explaining that he "wanted sex because I just wanted sex." When she asked, "Why did u want to Fuck me after … U hurt me", he answered, "Because I been wanting you duh hello ... Like wake up” (5:31 – 7:49 a.m.).

• In response to her questions about why the defendant desired her sexually even though she “looked like shit” and he had pulled off her hair and taken off her makeup, he answered, “You look sweet naturally” (7:27 – 8:29 p.m.).

• The defendant referred to things done by the complainant which caused him to react hurtfully toward her. When she wrote at 8:58 a.m. that he did not “respect me … or fear the consequences of your actions, u do it all to hurt me and u don’t care,” he answered at 9:08 a.m.:

Do you think of the things n don’t think of the consequences you know how I am as a person and try me all the time you know I can be crazy but yet you think telling me ur with some next man while ur at work and take it for a joke which isn’t cool [nickname] it just happened last night what the fuck can I make up when I’m at work n your at work think then your questioning my love yet you do nothing to show you love me … Look I’m not doing this all day.

At 11:03- 11:05 a.m., after the complainant wrote that the defendant did not feel sorry and never did anything to make up for his wrongs, he answered:

Do you make up for anything you do? Do you think it was appropriate to do a d say the things you know I would get pissed off at. Because you brought that on yourself if you know how I get why would you do that? I said sorry nothing else I can say or do other then get what ever but I said not right now so don’t try to force me just because.

Physical Evidence

[23] Two sets of photographs were tendered by the Crown to illustrate the injuries sustained by the complainant on October 19. The first set, in Exhibit 4, was taken by her the next morning and referred to in her messages that day to the defendant (8:55 a.m.). The second set, Exhibits 5A to 5G, was taken by medical staff at the hospital after she reported the assaults to the police on Sunday, October 22. The injuries are most vivid in the complainant's photographs taken within a half day of the events, but they can also be seen in the images from three days later, some of which hospital staff recorded as "old" injuries.

[24] The photographs capture a red mark on the complainant's right forehead; marks at several positions around her neck; and marks on her left breast, her right thigh, and her left hand. She testified that injuries were also visible between her thighs, though she did not photograph them.

[25] The Crown also filed as Exhibit 5H to 5T photographs of three garments worn by the complainant on the night of October 19. The most markedly damaged is a bra on which a strip of fabric holding the two cups together is split, making the garment unwearable. The complainant's top, apparently of a knit fabric, appears to be stretched around the neck opening, though this is not entirely clear. The leggings, which match the top, are obviously stretched and misshapen at the waist. They contain three holes (one visible on Exhibit 5R and two on Exhibit 5S) along with a torn label on Exhibit 5T.

THE DEFENCE EVIDENCE

Testimony of V.K.

[26] V.K. was called as a witness for the defence. She is 44 years old and the mother of four children. She had met the defendant through an online dating site several weeks before the breakfast intrusion, which she recalled. She stayed at his home overnight “plenty of times.”

[27] On the morning of the breakfast incident, V.K. was with the defendant in his bedroom when she heard a sound at the door. The defendant went out to see who it was. Though she did not see the complainant, she heard her muffled voice and took her to be yelling at the defendant in an upset and aggressive tone, using profane language, the details of which she could not recall.

[28] This episode surprised V.K.; she had been seeing the defendant for two weeks to a month by this point and believed that his relationship with the complainant was completely over. She wanted her relationship with the defendant to be "exclusive" and would not have remained in it if she knew he was seeing other people.

[29] V.K. also testified about the October 19 phone call from the defendant and the complainant. It began with the defendant saying the complainant wanted to talk to her. The complainant asked if she and the defendant were in a relationship and V.K. said they were. The complainant said to V.K. that she should "find your own fucking man" and spoke in a nasty and aggressive manner. She inquired about whether the defendant had performed oral sex on V.K. and told her that she and the defendant were not broken up.

[30] V.K. testified initially that the phone was in the complainant's possession during the call but agreed in cross-examination that she could not know who was holding it if it was being used as a speaker phone. She accepted that she had no idea what was going on in the room occupied by the defendant and complainant.

[31] V.K. eventually broke off her romantic relationship with the defendant but still remains close to him. She agreed that they had discussed the case and the defendant's version of what had occurred. This, however, had no effect on her own evidence.

The Defendant's Evidence

[32] The defendant expressed dissatisfaction with aspects of his relationship with the complainant, especially about her undissolved marriage, her unwillingness to let him meet her family, and what he claimed was a lack of truthfulness on her part. He did, however, want to marry her and said he loved her. They had an "off and on" relationship. During the period when the events in this case took place, he had been seeing V.K. for about two weeks, which mainly involved "just messaging" her.

[33] On the day the complainant came to his apartment with breakfast and found him with V.K., he was surprised. He considered his relationship with the complainant to have been ended. He dated the ending to the previous Sunday, October 15, when he, feeling the relationship to be in "bad shape", told her it was over.

[34] The defendant woke up that day when he heard "fidgeting" with the door and went outside to find the complainant in the apartment. She asked who was in the bedroom and, when he did not tell her, turned around angrily and walked out. He followed, asking, "where are you going, what's going on?" When he asked if she was going to leave the food she had brought, she answered, "fuck you.” He testified that the complainant asked him if he was cheating and wanted to "know everything" about V.K.

[35] According to the defendant, he spoke with the complainant after this incident about the terms on which she would be willing to get back together with him. She said that he would have to prove that he was not cheating and was not in a relationship with V.K. This meant she would have to see the text messages on his phone. He agreed, testifying that he would have done anything she asked. He explained that he was willing to resume the relationship, despite having broken it off himself, and despite the breakfast incident, because the complainant was open to reconciling and he loved her.

[36] When the complainant arrived on October 19, she insisted on looking at his phone immediately. She wanted to hold it, but he refused and held it himself while she looked through the messages. He was not prepared to relinquish the phone because he thought she would do "unnecessary things," like deleting applications. After her review of his WhatsApp messages, she wanted to go into the phone and "do more," but he said no. The app contained no messages between him and V.K., though he said they had communicated by that means. He had not deleted their messages but thought they must have been automatically deleted after being retained for a fixed time, about which he gave varying estimates. The complainant asked him questions about V.K., including their sexual practices and how long they had been together; he answered to the best of his ability, noting that he and V.K. had not been together for long.

[37] The complainant then insisted on phoning V.K. He said they had agreed that if he called V.K. and gave the complainant access to his phone, they could have “make up sex”. He made the call, on the speaker phone, and told V.K. the complainant was with him. The complainant wanted him to question V.K. but he told her to ask the questions. She asked V.K., among other things, about the nature of her sexual contact with the defendant.

[38] The defendant described the complainant as "pissed off" after this conversation, which confirmed the relationship he had with V.K. She was swearing. At this point, a "tussle" began over possession of the phone. The complainant believed that there were photos on the phone of his "privates," which had been sent to other women. The defendant did not want to let her look in his phone, though it contained no such photos.

[39] The defendant described the tussle as beginning while they were standing on the floor in the confined space of his small bedroom, raising the potential for injury. It included her jumping on his back, after which he threw her onto the bed. The tussle, he said, was mutual: "both of us" were fighting over the phone. At one point, however, the phone was on the bed. They were, by then, just fighting for no reason.

[40] The fighting ended and they calmed down. Lying on the bed, they spoke about V.K. and about their own relationship. They eventually took off their clothes. He performed oral sex on her and tried to perform intercourse but did not because she said no, and he was "not going to force myself on her." They lay there for a time and watched television. The defendant denied that he either used a knife or choked the complainant during the events of October 19. He said that while he used boxcutter knives at work, to open furniture boxes, he did not have one at home.

[41] The defendant testified in general terms about the text messages, explaining that when he said he was sorry he was apologizing for the tussling and fighting, and in response to her accusation of cheating. He felt the fighting did not need to have happened. He explained that he agreed to pay back the complainant for the damage to her clothing because she had liked the clothes and he cared about her.

[42] In cross-examination, the defendant accepted that the complainant was at one point going to leave the apartment and began to do so but then "came back on her own." He disagreed with the implications of the text messages put to him by Crown counsel, attributing all of the complainant’s assertions that she had been injured to the consequences of the mutual tussle, explaining his own promises to make amends by noting her fondness for the damaged clothing and his love for her, and denying that he agreed with passages which suggested his sexual arousal as the physical conflict was in progress.

LEGAL PRINCIPLES

The Approach to Factual Determinations

[43] The defendant is presumed innocent of the charges against him and retains that presumption until the point at which the Crown has satisfied me, as the trier of fact, that his guilt has been demonstrated beyond a reasonable doubt. Each element of the offence charged must be proven to that exacting standard by admissible evidence. The Crown’s burden of proof can be met only with evidence of sufficient cogency to leave me sure of the defendant’s guilt. While this level of proof is not to be equated with absolute certainty—a rarely attainable level of confidence in the assessment of past events—it is much closer to absolute certainty than it is to mere probability, the standard that governs a court’s determination in most civil proceedings.

[44] Because the defendant gave evidence, my assessment of his testimony must conform to the framework set out by the Supreme Court of Canada in R v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, which directs that a trier of fact consider whether testimony of the accused, and other evidence with the potential to exculpate him, is accepted; whether, if not accepted, it raises a reasonable doubt in light of all the evidence; and whether, if wholly rejected, the accepted evidence that remains proves guilt beyond a reasonable doubt. Although I will not approach fact-finding in the sequence set out in W.(D.), the approach to the issues that it directs has shaped my consideration of all the factual issues before me and my conclusion.

Adoptive Admissions by Silence

[45] The Crown argues in this case that the defendant can be taken to have accepted or adopted the accusations of assault levelled against him by the complainant in her October 20, 2017 text messages because he said nothing in his responses to contradict or refute the accusations. In support of that submission, the Crown relies on the comprehensive treatment of authorities in this area in R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, where Simmons J. A. said, at paras. 48, 52-58:

David Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2013), at para. 36.04, sets out the general principles relating to adoptive admissions by silence, in part, as follows:

An adoptive admission is a statement made by a third party in the presence of and adopted by D. There is only adoption to the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D's

i. words

ii. actions;

iii. conduct; or

iv. demeanour.

Assent may also be inferred from D's silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission.

The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue arises, the trial judge should first determine whether there is any evidence of assent or adoption by D, before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction. (Emphasis omitted)

In R. v. Eden, 1969 CanLII 329 (ON CA), [1970] 2 O.R. 161, [1969] O.J. No. 1570 (C.A.), Gale C.J.O. explained the principle this way, at pp. 163-64 O.R.:

The right of a trial Court to conclude that an accused adopted an inculpatory statement made in his presence rests upon the assumption that the natural reaction of one falsely accused is promptly to deny or assert his innocence. It follows that before such an assumption can be acted upon the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person involved by the statement to deny it. When the circumstances are such that the failure to protest can be attributed to some circumstance justifying such failure, the probative value of the failure to protest is lessened and may be entirely negatived.

In R. v. Govedarov, Popovic and Askov (1974), 1974 CanLII 33 (ON CA), 3 O.R. (2d) 23, [1974] O.J. No. 1837, 16 C.C.C. (2d) 238 (C.A.), Martin J.A. cited, at p. 278 C.C.C., Phipson on Evidence, 11th ed. (London: Sweet & Maxwell, 1970), at p. 767, for the more general proposition that:

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances be such that he could reasonably have been expected to have replied to them.

Martin J.A. repeated this basic formulation of the test in R. v. Baron (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173, [1976] O.J. No. 2304, 31 C.C.C. (2d) 525 (C.A.), at p. 187 O.R., pp. 539-40 C.C.C.:

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent.

In R. v. Warner (1994), 1994 CanLII 842 (ON CA), 21 O.R. (3d) 136, [1994] O.J. No. 2658, 94 C.C.C. (3d) 540 (C.A.), Griffiths J.A. expressed the test as follows, at p. 144 O.R., p. 549 C.C.C.:

Silence may be taken as an admission ". . . where a denial would be the only reasonable course of action expected if that person were not responsible": Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Markham; Butterworth's, 1992), at p. 286. In R. v. Baron . . . , Martin J.A. put the principle as follows at pages 539-40:

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent.

In Warner, Griffiths J.A. went on to hold that a trial judge should make a preliminary determination that some evidence of adoption exists before leaving the issue with the jury. Further, if the issue is left with the jury, the trial judge should instruct them that they must consider all the circumstances under which the statement was made before making a finding of adoption, stating, at pp. 144-45 O.R., pp. 549-50 C.C.C.:

Whether or not the silence of the accused constitutes an implied admission, depends on whether, in all of the circumstances, such an expectation [of a reply] is reasonable. The trial judge should determine in advance whether there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgment of responsibility.

Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury that it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true. In this respect, the jury must consider all of the circumstances under which the statement was made.

This court's most recent discussion of adoption by silence confirms the Baron formulation of the test. In R. v. F. (J.) (2011), 2011 ONCA 220, 105 O.R. (3d) 161, [2011] O.J. No. 1577, 269 C.C.C. (3d) 258, affd without reference to this point, [2013] S.C.J. No. 12, 2013 SCC 12, 293 C.C.C. (3d) 377, Rosenberg J.A. said the following, at para. 46:

There was sufficient evidence from which it can be inferred that the appellant adopted the statement about his supplying the Tylenol 3. Silence alone is evidence that the person adopted the statement, if the circumstances are such that the person could reasonably have been expected to have replied to them: R. v. Baron and Wertman. Given AS's evidence set out above, there was a foundation for finding that the appellant adopted the statement on the basis of silence. But, there was more; it was AS's evidence that they were all involved in the conversation about the Tylenol 3. . . . Evidence establishing on a balance of probabilities that he adopted the statement was sufficient to render it admissible against the appellant: R. v. Evans. (Citations omitted; emphasis added)

Finally, I note that in S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013), the authors recommend a cautionary approach to the doctrine of adoption by silence, at p. 7-137:

One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should [page595] respond in what are often extreme and unusual situations. Jury suppositions about how an accused "should" behave in such circumstances may be inaccurate. They should be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way.

[46] I have followed the approach that I distill from the authorities canvassed in Robinson and have considered whether an inference of adoption by silence is available as both a threshold legal question (whether there is evidence fit to be left to a trier of fact on the question) and a factual one(whether the inference should be drawn). I have also taken the recommended cautious approach to the question, aware that there may be many reasons for a person to hold their peace when faced with false allegations. In addition, I have considered both the admissibility and potential probative utility of the text messages keeping in mind the admonition in Robinson itself about the need for a sound factual record, at paras. 79-80:

In appropriate circumstances, an accusatory statement directed at an accused person may be sufficient to permit an inference to be drawn that the accused person could reasonably have been expected to respond. However, assuming a non-accusatory statement can be adopted by silence, evidence concerning the full factual context in which the non-accusatory statement was made is required to permit the trier of fact to draw an appropriate inference concerning whether the accused could reasonably have been expected to respond.

In this case, in the absence of evidence concerning the full factual context in which White's statements were made, I see no reasonable basis on which an inference of adoption by silence could have been drawn.

[47] While the Court of Appeal was addressing the claimed adoption of a “non-accusatory” statement, the importance of knowing enough about the factual context to found a safe conclusion seems a wise course in any case involving a purported adoption by silence. It is acknowledged that there were phone calls between the defendant and the complainant on October 20 of which there is no record and no recollection by the parties, making it important to be careful in drawing inferences from the texts themselves.

[48] Because the key allegations in the complainant’s testimony appear in her text messages to the defendant, it is also important to note that what she says in the messages cannot be used as evidence of the truth of the words written nor, in so far as it is consistent with her testimony, as confirmatory evidence: R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788 at paras. 36-40. The complainant, like the defendant, was questioned in cross-examination about alleged inconsistencies between her testimony and the messages, a routine and proper means of testing a witness’s credibility.

FACTUAL FINDINGS

Overall Credibility

[49] Neither the complainant nor the defendant has a criminal record nor anything else in their background, or in their manner of testifying, which would prompt immediate mistrust of their evidence. They each have strong feelings toward the other, which in both cases seem to be a mixture of residual affection, regret, anger and resentment. Nothing about their backgrounds, their attitudes, or their demeanour in court plays a significant role in my factual determinations.

[50] Sometimes, the credibility of a witness can be tested not by reference to the core of their testimony but by how they deal with matters that are not essential to the case but might tempt a witness to mislead or shade the truth. When the defendant shifted his account of how the WhatsApp application deleted stored messages—from 25 or 30 days initially to shorter periods that might make sense of his version of the dispute over the complainant wanting to examine his phone or delete and reinstall the app—I felt he was not being truthful. To put it charitably, his rapid changes in position on this point seemed to be improvised to meet the thrust of the cross-examination.

[51] I also found the defendant to be attempting to shade evidence in his favour regarding whether he was being unfaithful to the complainant in his relationship with V.K. He had met V.K. on a dating app. He testified that he "broke up" with the complainant on October 15, the Sunday before the day when she came unexpectedly into his apartment. Whatever he may have said on the Sunday was sufficiently equivocal that the complainant—whose evidence on this point I accept—did not regard them as broken up when she arrived with the surprise breakfast a day or two later. V.K., however, considered herself by that point to have an established relationship with the defendant—she was not seeing anyone else and believed he was not. I conclude that the defendant had a significant romantic involvement with V.K., which existed before Sunday, October 15. Romantic infidelity is a matter of little consequence in itself, but the defendant’s evasiveness on the point when pressed is troubling.

[52] I was also struck by the testimony of the defendant about the central issue of his defence—why he was in the physical altercation with the complainant that she said was an attempt to force sex upon her. The defendant’s counsel put to the complainant in cross-examination that she was trying to get possession of his phone so that she could delete and reinstall the WhatsApp app. There was at least some factual context for that suggestion in the complainant’s evidence, though she denied that was the origin of the physical struggle. When the defendant gave his account of how he came to be in a physical fight with the complainant, however, he attributed it to her desire to get the phone to look for pictures of his genitals, which she suspected him of sending to other women. That suggestion had never been put to the complainant and it had no resonance with any other aspect of the evidence. This contributes to an impression I have formed that the defendant was willing to testify to meet the exigencies of the moment rather than with a commitment to the truth. On his account, there had to be some reason why a fight would erupt over possession of the phone after the earlier inquiries into the WhatsApp messages and the call to V.K.. It seems to me that he reached for a previously unmentioned interest by the complainant in the possibility of explicit photos to support his story of a struggle over the phone as an alternative to her account of aggression by him when she moved to leave.

[53] I did not find comparable grounds for concern regarding the complainant, though her credibility was challenged in closing argument. She appears to have been consistent when questioned on whether she said, at the preliminary inquiry that she had been choked. Though it is suggested that she understated her level of anger and rudeness during the breakfast incident and the October 19 phone call with V.K., my review of her evidence – recognizing that these are subjective evaluations by the participants in stressful events – does not support this submission. The complainant acknowledged that her voice was likely loud, and I have no doubt she sounded upset on both occasions. It is of little importance whether she recalled using bad language though she agreed it was possible in the October 19 call that she swore and spoke aggressively. V.K., in the bedroom, heard only muffled voices from outside during the breakfast incident.

[54] I do not accept that V.K.'s evidence discredits the complainant's testimony. I found V.K. to be a generally credible witness and I certainly do not discount her evidence because she has remained friends with the defendant after learning of the allegations against him; she was entitled to rely on her own judgment and to believe his denial of the allegations against him.

[55] A finding that V.K. is believable, however, does not provide any substantial ground to disbelieve or doubt the essential features of the complainant's testimony. V.K. was aware of the complainant's presence at the defendant’s apartment during the breakfast intrusion, when the complainant was, undoubtedly, upset to find the defendant in bed with another woman. V.K. was not in a position to record details of that encounter, as she was in the bedroom while it took place. She was also on the phone with the defendant and complainant during their encounter in the bedroom on October 19, but it appears that the phone at that point was in the defendant's possession, contrary to V.K.'s impression. The conversation included intrusive questioning and bad language by the complainant, who does not give a substantially different account of an unusual and emotionally intense event, details of which the participants may recall differently. V.K. accepted at the end of her cross-examination that she had no idea what was actually taking place in the defendant’s bedroom as the three parties spoke on the phone call.

[56] The suggestion was never put squarely to the complainant that she was inventing a story to support her demand for repayment for her damaged clothing, though the theory was briefly touched upon in argument. I do not find this a plausible argument for three reasons. First, the amount involved was relatively small and most unlikely to prompt a potentially life-altering false accusation of criminality. Second, the defendant had accepted an obligation to pay for the damaged clothing and there was no basis by Sunday, October 22 for the complainant to have concluded he would not do so. Third, if what she really wanted was repayment for the three damaged items, it would be apparent that reporting the defendant to the police for sexual assault would prevent any prospect of getting the money she felt entitled to.

[57] My fact-finding does not, however, depend chiefly on a weighing of points for and against the main witnesses. In contrast to many cases of sexual assault where fact-finding depends solely on the testimony of a defendant and complainant, and how they stand up to cross-examination and logical analysis, there is a revealing body of almost contemporaneous conversation and physical evidence from which to draw inferences and against which to evaluate the credibility of the main witnesses. Ultimately, my findings of fact are heavily influenced by my assessment of the text conversations between the complainant and defendant late on October 19 and through much of October 20, and by the two sets of photographs of the complainant’s physical condition and the state of her clothing in the aftermath of the events of October 19.

The Factual Issues to be Determined

[58] Though counsel did not focus in their arguments on the legal definitions of the offences charged, I take the position of the Crown to be that the physical altercation began with the forcible confinement and assault of the complainant by the defendant when she attempted to leave his apartment and was pulled into the bedroom and held on the bed. There followed a period of physical domination of the complainant, which included choking and the wielding of the X-Acto knife. Because this conduct included attempts to force intercourse, the offences of choking to enable sexual assault and sexual assault with a weapon were made out.

[59] The defence theory is that the physical conflict began with an attempt by the complainant to secure the defendant's telephone and amounted to a mutual tussle. The defence does not admit that bodily harm was caused to the complainant—certainly, nothing beyond the transitory and trifling—and denies the use of a weapon or choking. On this view, the defendant was, at least at the beginning of the struggle, acting simply to retain possession of his personal property.

[60] For ease of analysis, I will address separately the questions of whether the physical encounter between the defendant and complainant was an assault and whether, if so, it was a sexual assault.

Was the Physical Altercation an Assault?

[61] This is the question to which most of the evidence and argument was directed. I have concluded that the evidence of the complainant is truthful and accurate on the points essential to resolving it. I find that when she was attempting to leave the defendant’s apartment, dissatisfied with her inquiries about his phone, he pulled her back in and physically dominated her as she resisted. During the struggle, the defendant employed a chokehold and wielded an X-Acto knife. I do not believe the defendant's evidence on these matters, nor, considering it in light of the entire record, am I left with a reasonable doubt on the legally critical questions.

[62] A point stressed by counsel on behalf of the defendant is that it was he who first made note of experiencing soreness in the text exchanges that followed the altercation. He wrote to the complainant before going to bed that night that his neck hurt (11:31 p.m.) and said it again early in the morning after she said that, for her, "Everything hurts" (5:28 to 5:31 a.m.). The complainant, however, responded to his first complaint by asking him: "Do u feel bad," to which he responded with the query "About." She then said she was "[v]ery upset," to which he responded, "About what now?" which ended the night's dialogue.

[63] When, in the morning, she mentioned that "[e]verything hurts" and that it hurt her to swallow, he suggested she could take the day off work (5:28 a.m. – 5:41 a.m.). He then appears to equate his soreness with hers: "Love u have great day just take ur time with ur sore body I can’t I gotta go hard today." To this implicit equation of his pain with hers, she responded bluntly and dismissively: "I didn't hurt u ... Its not the same ... Are u buying back my stuff" (6:03 a.m. – 6:14 a.m.). I take this to be a firm rejection by the complainant of the implication that they are each victims of the other's physical aggression and an insistence that she, as the wronged party, is owed recompense by him.

[64] The defendant at no point asserted that she did hurt him and never again placed the two of them on the same footing regarding the evening's events. He soon began both to apologize (8:57 a.m., 4:58 p.m.) and to accept that he should pay her for her damaged clothing and make up for what he had done to her (7:22 a.m., 8:54 a.m., 5:08 p.m., 5:27 – 5:30 p.m.). This is a persuasive response to the suggestion that the two were mutual combatants in a struggle over the phone. It rests not only on the defendant's silence in the face of her characterization of the situation, but on an implicit acknowledgement that he had wronged her and was obliged to make things right.

[65] The text messages offer more insight into the nature of the altercation, which may have resulted in some pain to the defendant but was driven by his aggression. The complainant’s string of allegations from 7:15 a.m. to 7:22 a.m. was accompanied by a demand for repayment for her destroyed clothing and the explicit assertion: "U think u can speak to me anyway u want too … And hit me and choke me ... And destroy my things." When she said, "I would like my stuff today," he answered only, "That's good." When she soon after asked why he would "destroy my thinga,” "treat me like shit," and cause "marks all over my body," he just said, "Okay" (7:24 – 8:54 a.m.). This is a good deal more than mere silence. The defendant accepts her demands for economic restitution, while leaving unchallenged her recitation of the physical harm he has caused her, which justifies the restitution. This response can be seen as in part adoption by silence and in part an implicit admission. There is no evidence of a phone call or other communication that places it in a different light, though I cannot exclude the possibility that there was a call between 7:26 a.m. and 8:53 a.m. about the demand for restitution.

[66] It is hard to think of assertions more likely to evoke an angry, hurt, or puzzled denial from a loving boyfriend, if they are false, than these. Viewing this in light of all the evidence and remaining aware of the potential frailties of adoptive admissions by silence, I consider this significant confirmation of the complainant's account. If there were a jury, I would leave it to them for that purpose (with the caution I have noted) and as trier of fact, I assign it some weight.

[67] There are, in my estimation, two even more telling exchanges. The first is from 8:57 a.m. to 9:09 a.m., where the complainant says the defendant does not love or respect her, nor "fear the consequences" of his actions. She says, "[U] do it all to hurt me and u don't care." His response, at 9:08 a.m., is not mere silence but:

Do you think of the things n don’t think of the consequences you know how I am as a person and try me all the time you know I can be crazy but yet you think telling me ur with some next man while ur at work and take it for a joke which isn’t cool [nickname] it just happened last night what the fuck can I make up when I’m at work n your at work think then your questioning my love yet you do nothing to show you love me….Look I’m not doing this all day. [Emphasis added.]

[68] This answer is directly in response to the complainant's comment on the defendant’s disregard of the consequences of his actions. There is no evidence of any communication between her litany of grievances ending at 8:59 a.m. and this answer, sent nine minutes later. Again, there is no denial by the defendant of her factual allegation but instead an attempt to assign blame to the complainant for not thinking about what she does to provoke his conduct, despite knowing "how I am as a person" and knowing he "can be crazy." The defendant recognizes that he did things toward her the night before that were wrong and for which he should atone: "it just happened last night what the fuck can I make up when I'm at work n your at work". When examined in light of the complainant's testimony at trial and the assertions that preceded it in the text messages, this passage amounts to his saying that his physical misconduct "last night" was caused by her emotional wrongs toward him and that he was willing to make up for it but could not do so immediately.

[69] The defendant suspended his messaging after his 9:09 a.m. answer, but the complainant responded to him immediately, saying, "[I]'m in pain today ... i'm fighting back tears ... not you ... u cheated on than beat me.” She continued with more expressions of grievance, including "[U] ripped my clothes" and concluded, at 10:05 a.m. with "U never make up for your wrongs." The defendant's response, almost an hour later, at 11:03-11:05, was:

[nickname] I know my wrongs do you know yours? … Do you make up for anything you do? … Do you think it was appropriate to do a d say the things you know I would get pissed off at. Because you brought that on yourself if you know how I get why would you do that? I said sorry nothing else I can say or do other then get what ever but I said not right now so don’t try to force me just because … Thanks I’m not fighting you [nickname] – 11:05 a.m. [Emphasis added.]

[70] This message takes the same approach as his response two hours earlier. It is an acknowledgement by the defendant of the wrongs alleged by the complainant, which include criminal behaviour, and a charge that she bears responsibility for saying and doing things she knows he "would get pissed off at." He claims, with no attempt to disguise his meaning, that she brought what happened on herself, knowing "how I get." He views his apologizing ("I said sorry") and offer of restitution ("get what ever") as all he can do and, I infer, all he should be expected to do, given her shared blame for the things he has done to her.

[71] I have no hesitation about the reliability of these inferences when considering them with the caution compelled by the authorities and by the possibly incomplete record of communication. His answers at both 9:08 a.m. and 11:05 a.m. pick up on things said by her in the messages to which he is responding. The 9:08 a.m. reply directly addresses her claim that he does not fear the consequences of his actions. The 11:03 a.m. reply begins with a direct reaction to her insistence that "[u] never make up for your wrongs." I do not believe that there were any other communications, including phone calls, between her assertions and his responses so I am not troubled by the possibility that I am missing some elaboration or qualification by him.

[72] I also do not view these passages as, in substance, adoptive admissions by silence. Reading his words after hers, both of his answers concede her assertions and seek to deflect moral responsibility by turning some of the blame back on her. I find that his comment “you know how I get” lends support to the complainant’s evidence that there had been earlier incidents between them that led her to believe she should wait for him to feel calm and unthreatened before leaving his presence.

[73] One of the complainant's specific allegations, found in both her testimony and her text messages, is that, in the course of the assault on the bed, the defendant rubbed her makeup from her face. She also said that in grabbing her from behind as she was trying to leave, he pulled off her wig. Both acts, if performed without consent as she alleged, would be unlawful assaults, though of a lower order of seriousness. For the present analysis, what I consider significant is that when the complainant wrote "I was crying ... U pulled off my hair ... Take my make up off, " he effectively admitted that he had done what she said when he answered: "You look sweet naturally." This may have been a placatory, flattering attempt at justifying what he did, but it also was an acknowledgement that what she said was true. The exchange may also illustrate what I take to be the fluctuating and uneven emotions that both of them displayed after the incident. For the complainant, the context of the exchange was curiosity about why he had found her sexually desirable despite her feeling that she "looked like shit" because she was crying and did not have her wig and makeup on. This is an example of why, in seeking to reach reliable factual findings, I have mostly attempted to avoid unnecessary conclusions about the confused, fluctuating emotions of both parties and remained focused on determining whether the acts alleged in the indictment were performed by the defendant.

[74] I have explained why I regard the defendant's response to the allegations of assault in the complainant's text messages as more than simply adoptive admissions by silence. Nonetheless, the absence of any refutation or denial by the defendant of beating the complainant, choking her, holding a knife to her throat, and causing her pain, in response to 15 hours of accusatory messages from her, is striking. I believe that if the defendant had a plausible factual rejoinder to her accusations of physical violence, he would have articulated it in his texts. These are accusations that would prompt a response from a reasonable person innocent of the wrongdoing alleged. While I do not consider reliance on adoption by silence to be a necessary part of my reasons in this case, I have no hesitation in holding that a trier of fact can properly consider such an analysis as a matter of law. I consider the inculpatory conclusions drawn from the analysis to be sound as a fact-finder.

[75] Counsel for the defendant drew my attention to the exchange between him and the complainant at 5:12 p.m. to 5:19 p.m. on October 20 when, after she wrote "What that u choked me and hit me and had a knife to my throat ... And fucked another female ... There is nothing to tell," he answered: "Smh [nickname] really." It was suggested by the defendant that this was a denial of the misconduct she was alleging.

[76] I do not accept that construction of the exchange. The defendant was not figuratively shaking his head ("smh") at the falseness of the allegations. Minutes later, when she said he had not "made anything right," his answer was "I will give me time"—the opposite of a denial. Rather, I am confident that he used "smh" at 5:19 p.m. in the same way as he used it a few minutes earlier, at 4:58 p.m. There, the complainant had launched a series of assertions including that she "can't handle what u do to me"; that all she could feel "was your hand around my neck"; and that he does not love her. His response was: "How do think I'm not sorry ... Smh ... I'm more then sorry." In this exchange, the defendant was "shaking his head" in exasperation but the "smh" was not directed to her allegations and was not a claim that they were false. The "smh" was bracketed by two apologies for his conduct, which were tantamount to admissions of it. Rather, the defendant was frustrated that the complainant would not let go of her grievances and persisted, as she had throughout the day, in naming them and drawing from them the conclusion that he did not love her, care for her, treat her properly, or feel remorseful. He was shaking his head that she would not accept his apologies and his offer of restitution and move on.

[77] The context for the second “Smh” at 5:19 p.m., emphasized by defence counsel, was the complainant’s response to the defendant’s expression of his grievance about being excluded from her family life and never meeting her mother. He said he could not do “everything you ask in one day” (referring to making things right between them). She answered, “Actually u can” (5:08 p.m.) and he told her, “Wow, then call ur mom n tell her about us you can do that u actually can.” Her reply is a sarcastic list of things she could tell her mother about him, including that he had choked her, hit her, put a knife to her throat, and had sex with another woman. She ends with “There is nothing to tell ... Don’t change the topic or deflect.” It is to her bitter and unflinching insistence that he focus on what he has done to her, and not change the subject to his own emotional pain, that he answers “Smh.”

[78] The evidence shows that after an initial, very intense, physical altercation, which I conclude began as the complainant tried to leave the apartment and ended with the call to V.K., there was a prolonged period of apparent tranquility, which included watching television and the performance of oral sex by the defendant. Some kind of pleasantries were exchanged at her departure, and they sent texts, before going to bed, which, along with her testimony, satisfy me that they had agreed to speak when she arrived home. For the defendant, an event that had erupted into violence and high emotions, jeopardizing the long-term relationship he valued, had been handled and effectively resolved. He continued the next morning to express contrition and to try to keep the exchanges light, referring to their shared soreness and their plans for the workday. The complainant, however, was not willing to let go of her hurt and anger, and she could not be placated. It was this persistence on her part, not any fabrication in her allegations, that the defendant was reacting to when he wrote "Smh" at both 4:58 p.m. and 5:19 p.m. on October 20. It is not reasonable, in context, to read this as a denial of her claims that she had been assaulted. It is, rather, a reflection of his belief that she should get over what had happened by accepting that he, too felt hurt, that he had said he was sorry, and that he would pay for the damage to her clothes.

[79] The inferences that can be drawn from the complainant’s credible testimony and the text messages are strengthened by inferences from the photographs of injuries on the complainant. Injuries that are quite vivid the morning after the altercation are still detectable in photos taken three days later, during the investigation that followed her report to the police. Force has been applied to her forehead, her right thigh, her left breast, and both sides of her neck. The injuries look like the result of an assault that included a chokehold. I have heard no evidence, nor any argument, that they were somehow contrived by the complainant or that she received the marks from another source. When she told the defendant that she had taken photos of "all the bruises" (which she said had gotten worse in the morning), the defendant did not deny that she was bruised and instead asked to see the pictures (8:55 a.m. - 8:56 a.m.).

[80] These photos generally do not suggest a mutual struggle over a small device like a phone, even one occurring in a confined space. The bilateral neck marks are almost impossible to square with the tussle described by the defendant and strongly support the inference that the complainant had been choked.

[81] This corroborative evidence is supplemented by photographs of the complainant's torn and stretched clothing, which the defendant, in his texts, acknowledged responsibility for but did not explain in any credible way in testimony. The stretched, misshapen leggings, with holes in them, and the stretched hoodie and severed bra all look like the product of an assault on the person of the complainant, involving an attempt to remove her clothing, rather than a struggle for a telephone on the soft surface of a bed.

[82] The defendant's evidence suffers from the credibility deficits outlined earlier. It is, in my judgment, rendered unbelievable by the admissions, rationalizations, and silences in his text messages, his weak explanations for which I do not accept. And it is conclusively refuted by the physical evidence, which supports the case against him and which he does not credibly answer. I conclude that the physical altercation between the defendant and the complainant began as she describes it, that it was in its essence an assault by him, not a reciprocal tussle, and that it included the deployment of a knife and the use of a chokehold.

Was the Assault a Sexual Assault?

[83] The complainant testified to events that constitute a violation of her sexual integrity: R v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302, R v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at pp. 344-345. She said that the defendant attempted, during the physical conflict on the bed, to force her legs open for the purpose of sexual penetration, using a chokehold and a knife to achieve his ends. Later, in the wake of the painful assault, he performed oral sex on her when she did not wish such intimacy with him. She neither communicated her consent to that act, nor was she asked about it by him. The defendant denied that the physical conflict included any attempt at sexual coercion and said that the oral sex afterward was performed by him with her express consent, after he asked her if she desired it.

[84] I have concluded that the assaults were of a sexual nature and that they amounted to a violation of the complainant's sexual integrity. She actively resisted the defendant's use of physical force during the altercation on the bed, which included an attempt to have intercourse with her. She also did not want, or communicate consent to, the oral sex performed later, during the period of calm before her departure.

[85] It seems likely to me that the two acts were products of the emotional turmoil that gave rise to the entire event. They were an expression of the defendant’s desire to retain control of and connection with the complainant as she moved to leave his apartment (and the relationship) at the first stage, and an ill-judged effort to re-establish affection, and perhaps even please her, at the latter stage.

[86] Sexual motivation is not an element of sexual assault. The sexual dimension of the crime can be made out whether the motivation of the perpetrator is sexual gratification, affection, domination, or some obscure or perverse impulse that cannot be identified or even understood. The prohibited conduct is any act performed in circumstances that constitute a non-consensual intrusion on the victim’s sexual integrity. The mental element is made out by the intent to perform the act with an awareness of the circumstances. The defendant need not have a subjective intent to commit a sexual violation or even an understanding that he is doing so, as long as he knows the circumstances in which he is performing his actions: R v. V.(K.B.), 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857, affirming R v. V. (K.B.) (1992), 1992 CanLII 7503 (ON CA), 8 OR (3rd) 20 (C.A.); R v. P.L.S., 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at pp. 924-925.

[87] Considering the many combinations of conduct and circumstances that may give rise to liability for sexual assault, it is obvious that if the defendant, during an emotional dispute about his relationship with the complainant, grabbed her, held her down, choked her, and threatened her with a knife, while attempting to prise her legs apart, he is guilty of sexual assault. That would be true even if all he really wanted were to be loved by, or respected by, or married to, the complainant. Equally, if, in the aftermath of an assault, in an effort to restore good relations, he performed oral sex on her when she did not subjectively want him to and he did not reasonably believe she had communicated her consent to the act, then he is also guilty: R v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at pp. 347-350; R v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 87-93; Criminal Code s. 273.2.

[88] I accept the complainant’s evidence about the sexual elements of the offences charged in part because I find key aspects of her testimony to be amply corroborated by the balance of the evidence, as I have discussed. Finding that her account is supported or confirmed in several salient features by the rest of the evidence gives me elevated confidence that on issues where supportive evidence is less clearly available, she is nonetheless testifying honestly and with care for the accuracy of the details of her story. Confirmation of some of the details of a narrative may justify acceptance of other details: R v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at paras. 62-65; R v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19. This is ultimately a matter of common sense and judgment: the complainant has shown that she is telling the truth about a number of aspects of a disputed narrative, and this makes it relatively more likely that she is telling the truth about all of it.

[89] I have separated my analysis of the sexual component of the counts in part because there is less confirmation for it than for the assaults themselves. The complainant testified that she observed bruising between her thighs, caused by the defendant's attempt to force them apart, but did not photograph it. The little I have heard of the police and medical investigation did not confirm the presence of such bruising, which would, of course, be significantly probative if it existed. Nor is there independent evidence of the knife with which the complainant testified the defendant attempted to compel her to submit to intercourse with him.[^2]

[90] There are, however, two pieces of evidence which fortify my already high confidence in the truthfulness of the complainant's account of the sexual nature of the assault upon her. The first is the text message exchange where she asserted, and the defendant implicitly conceded, that his use of force occurred in a sexual context.

[91] At 5:34 p.m. – 5:45 p.m. on October 20, they exchanged these messages:

Complainant: Be honest – 5:34 p.m.

Complainant: Does that stuff turn u on – 5:35 p.m.

Defendant: What – 5:44 p.m.

Complainant: Does it turn u on – 5:45 p.m.

Complainant: To hurt me – 5:45 p.m.

Complainant: Cause u wanted sex the whole time – 5:45 p.m.

Defendant: No I wanted sex because I just wanted sex [nickname] why do you ask me dumb ass foolish questions – 5:51 p.m.

[92] The premise of the complainant's question was that as the defendant "hurt" her, she perceived him to have "wanted sex the whole time." She was expressing curiosity about whether her two observations were related—whether the hurting was what aroused him sexually. The defendant's response denied the linkage between hurting and sexual arousal, calling that a "dumb ass foolish" idea. He explained that he simply wanted sex because he wanted sex. In so saying, however, he left unchallenged, and implicitly acknowledged, the factual assertion built into her query—that the hurting and the desire for sex were coincidental and manifested themselves at the same time. That, in my judgment, affords considerable support for her already credible account that the violence on the bed occurred as he was trying to have sex with her. It makes no sense that if the defendant had not hurt her, as she claimed, he would deny the link she was inquiring about between his hurting her and his being "turned on" without denying her premise that he wanted sex as he was hurting her.

[93] Almost two hours later, at 7:27 p.m., the complainant again asked about his sexual desire, inquiring, "Why did u want to fuck me after …. U hurt me." The defendant, treating the answer as obvious and denying any complexity in his motivation, replied, "Because I been wanting you duh hello ... Like wake up." Again, though less clearly, the defendant is acknowledging the coincidence between his sexual desire and the hurt he caused, while denying that one was related to the other.

[94] These exchanges undermine the credibility of the defendant’s evidence that he made an overture to perform intercourse with the complainant but ceased because he would not “force myself on her”. His evidence also differs sharply from the suggestion about intercourse put to the complainant in cross-examination—that he was “not really in the mood” for intercourse after the fight and did not pursue it. Not surprisingly, in light of the defendant’s text messages, she denied that suggestion.

[95] I also find support in the photographs of the complainant's clothing for the allegation that the assault was sexual in nature. The pronounced stretching of the leggings’ waistband speaks strikingly of an attempt to remove the garment by force and does not fit in any plausible way with a struggle for a phone. The holes in the pants are most likely to have been made by a forceful grabbing motion and make little sense as an incident of a fight over a small object. The neck of the top appears to have been stretched out of proportion with the rest of the garment. Most tellingly, the complainant's bra was literally torn in half between its two cups, leaving frayed threads of fabric on both sides of the break. This appears to me to have required the use of considerable force on a typically sturdy undergarment, which a person undertaking coercive sex would be likely to attempt to remove. It is notable that the defendant’s text messages amount to an explicit acceptance of responsibility for the damage he caused to the clothing with no attempt to qualify the obvious inferences it supports.

[96] The cumulative effect of this evidence persuades me beyond a reasonable doubt that the defendant's use of physical force on the complainant—whatever its psychological backdrop—was of a sexual nature and violated her sexual integrity in circumstances of which he was entirely aware at the time.

CONCLUSION

[97] For the reasons set out above, I find the complainant's evidence about the events of October 19, 2017 to be truthful and, on all points of significance, reliable. I have reached this conclusion based on my observations of her in court, the internal logic of her testimony, and the support it finds in other evidence, particularly her text exchanges with the defendant, the injuries on her person, and the condition of her clothing. That body of evidence tells a story of sexual assault, which I believe beyond a reasonable doubt.

[98] I disbelieve and reject the evidence of the defendant insofar as it suggests a mutual, non-assaultive struggle over his phone rather than a sexual assault. I conclude that his account is not salvaged or, on any matter of consequence, supported by the evidence of V.K. My rejection of the putatively exculpatory evidence means that it does not raise, in my evaluation, a reasonable doubt as to the defendant's guilt.

[99] Therefore, on count 1, I find the defendant guilty of sexual assault with a weapon—the X-Acto knife described by the complainant.

[100] On count 2, I find the defendant guilty of assault for taking hold of the complainant as she attempted to leave, pulling her into his bedroom, and thrusting her onto his bed.

[101] On count 3, I enter a stay of proceedings on the principle in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, since the assault alleged is embraced by the conviction on count 1.

[102] On count 4, I find the defendant guilty of forcible confinement for preventing the complainant from leaving his apartment and holding her against her will in his bedroom during the sexual assault.

[103] On count 5, the Crown having failed to prove the defendant was bound by an undertaking, I dismiss the charge.

[104] On count 6, I find the defendant guilty of choking the complainant to enable the commission of the sexual assault covered by count 1.

P. Campbell J.

Released: January 13, 2022

APPENDIX

Defendant and Complainant Text Messages (October 19-20, 2017)

October 19, 2017

Defendant: [Missed video call] – 6:21 p.m.

Defendant: [Missed video call] – 6:23 p.m.

Defendant: [Missed voice call] – 6:24 p.m.

Defendant: [Missed voice call] – 11:28 pm.

Complainant: Im home – 11:30 p.m.

Defendant: I called u why didn’t u answer – 11:30 p.m.

Defendant: I asked for u to call [nickname] – 11:30 p.m.

Complainant: I wasn’t near my phone – 11:31 p.m.

Complainant: Im tired – 11:31 p.m.

Defendant: I’m going to bed my neck hurts – 11:31 p.m.

Defendant: Goodnight – 11:32 p.m.

Complainant: Night – 11:37 p.m.

Complainant: Do u feel bad? – 11:37 p.m.

Defendant: Night – 11:37 p.m.

Defendant: About – 11:38 p.m.

Complainant: Never mind – 11:38 p.m.

Complainant: Night – 11:38 p.m.

Defendant: Night – 11:38 p.m.

Complainant: Im upset – 11:49 p.m.

Complainant: Very upset – 11:49 p.m.

Defendant: About what now? – 11:50 p.m.

October 20, 2017

Defendant: Morning – 5:20 a.m.

Complainant: Everything hurts – 5:28 a.m.

Complainant: It’s not right – 5:28 a.m.

Defendant: I know I’m in pain also my neck hurts n sorry – 5:31 a.m.

Defendant: Why are u up – 5:33 a.m.

Complainant: What do u mean – 5:35 a.m.

Defendant: Ur getting ready for work now – 5:36 a.m.

Complainant: Yup – 5:36 a.m.

Complainant: U arent working – 5:37 a.m.

Defendant: I am I’m at yorkmills – 5:37 a.m.

Complainant: It hurts to swallow – 5:37 a.m.

Complainant: I want to call in sick – 5:37 a.m.

Complainant: But i csn – 5:37 a.m.

Complainant: Can’t – 5:38 a.m.

Defendant: Why can’t you if rather you do to rest up – 5:38 a.m.

Complainant: Because i have an event i organize today – 5:41 a.m.

Defendant: Oh k what kinda event? – 5:42 a.m.

Complainant: Company wide event – 5:42 a.m.

Complainant: At 11 – 5:42 a.m.

Defendant: Good luck – 5:42 a.m.

Complainant: K – 5:50 a.m.

Defendant: Love u have great day just take ur time with ur sore body I can’t I gotta go hard today – 5:52 a.m.

Complainant: I didn’t hurt u – 6:03 a.m.

Complainant: Its not the same – 6:03 a.m.

Complainant: Are u buying back my stuff – 6:14 a.m.

Complainant: Forwards ad for leggings and a hoodie – 7:13 a.m.

Complainant: Currency conversion – 7:14 a.m.

Complainant: I want my things replaced today – 7:15 a.m.

Complainant: U think u can speak to me anyway u want too – 7:15 a.m.

Complainant: And hit me and choke me – 7:15 a.m.

Complainant: And destroy my things – 7:15 a.m.

Complainant: And cheat on mw – 7:16 a.m.

Complainant: I should just take it – 7:16 a.m.

Complainant: My bra was a la senza bra 44.95 – 7:22 a.m.

Complainant: Cdn – 7:22 a.m.

Complainant: I would like my stuff today – 7:22 a.m.

Defendant: That’s good – 7:22 a.m.

Complainant: 94.88 – 7:22 a.m.

Complainant: Please send me the money or purchase it online – 7:23 a.m.

Defendant: What didn’t you hear from me this morning [nickname] – 7:23 a.m.

Complainant: Why did u destroy my thinga – 7:24 a.m.

Complainant: If u arent giving it back – 7:24 a.m.

Complainant: U dont respect me – 7:24 a.m.

Complainant: U treat me like shit – 7:24 a.m.

Complainant: Im in pain this – 7:25 a.m.

Complainant: Im the one with marks all over my body – 7:25 a.m.

Complainant: This is how u treat ppl u love – 7:26 a.m.

Complainant: U should just send a 110 i didn’t include taxes on the bra and shipping for the clothes – 7:48 a.m.

Complainant: Im going to leave work – 8:08 a.m.

Complainant: I didn’t want to talk in front of my boss – 8:53 a.m.

Complainant: but my back and neck are hurting me – 8:54 a.m.

Defendant: Okay – 8:54 a.m.

Complainant: rubbed – 8:54 a.m.

Defendant: Like wise n my hamstring – 8:54 a.m.

Complainant: bengay – 8:54 a.m.

Defendant: U want me to rub it? – 8:54 a.m.

Complainant: i did it! – 8:55 a.m.

Complainant: it did nothing – 8:55 a.m.

Complainant: i took pics of all the bruises they got worse this morning – 8:55 a.m.

Defendant: Let me see – 8:56 a.m.

Complainant: when I took a shower last night i knew it would be worse in the morning my face was burning a little – 8:56 a.m.

Defendant: Okay baby I hear you I feel bad – 8:57 a.m.

Complainant: no u don’t – 8:57 a.m.

Complainant: u do nothing to make up for anything – 8:57 a.m.

Complainant: u don’t really love me – 8:58 a.m.

Complainant: i know it – 8:58 a.m.

Complainant: i’m doing a lot of thinking – 8:58 a.m.

Complainant: u don’t respect me – 8:58 a.m.

Complainant: or fear the consequences of your actions – 8:59 a.m.

Complainant: u do it all to hurt me and u don’t care – 8:59 a.m.

Defendant: Do you think of the things n don’t think of the consequences you know how I am as a person and try me all the time you know I can be crazy but yet you think telling me ur with some next man while ur at work and take it for a joke which isn’t cool [nickname] it just happened last night what the fuck can I make up when I’m at work n your at work think then your questioning my love yet you do nothing to show you love me – 9:08 a.m.

Defendant: Look I’m not doing this all day – 9:09 a.m.

Complainant: i’m in pain today – 9:10 a.m.

Complainant: i’m fighting back tears – 9:11 a.m.

Complainant: not you – 9:11 a.m.

Complainant: u cheated on than beat me – 9:11 a.m.

Complainant: i feel like shit – 9:11 a.m.

Complainant: and u treat me like shit – 9:11 a.m.

Complainant: what have u done to make things right nothing – 9:11 a.m.

Complainant: u ripped my clothes – 9:12 a.m.

Complainant: u think it’s okay – 9:17 a.m.

Complainant: it’s not – 9:17 a.m.

Complainant: Im going to the doctor – 9:23 a.m.

Complainant: U dont understand u buying back my things shows me your sorry – 10:00 a.m.

Complainant: I dont feel your sorry – 10:00 a.m.

Complainant: U never make up for your wrongs – 10:05 a.m.

Defendant: [nickname] I know my wrongs do you know yours? –11:03 a.m.

Defendant: Do you make up for anything you do? – 11:03 a.m.

Defendant: Do you think it was appropriate to do a d say the things you know I would get pissed off at. Because you brought that on yourself if you know how I get why would you do that? I said sorry nothing else I can say or do other then get what ever but I said not right now so don’t try to force me just because – 11:05 a.m.

Defendant: Thanks I’m not fighting you [nickname] – 11:05 a.m.

Complainant: There is no need to call me anymore ok – 4:44 p.m.

Complainant: U hung up when u had a chance to say what u needed too – 4:45 p.m.

Complainant: Bye – 4:45 p.m.

Defendant: What [nickname] you act like this all the time we spoke yesterday now u wanna act like this why – 4:47 p.m.

Defendant: For what reason – 4:47 p.m.

Complainant: I can’t handle what u do to me – 4:49 p.m.

Complainant: I left work crying – 4:49 p.m.

Complainant: All i could feel was your hand around my neck – 4:53 p.m.

Complainant: I hate how i feel – 4:54 p.m.

Defendant: I hate how you act at me knowing I only want the best for you n I – 4:55 p.m.

Defendant: It’s sad n I let u do it for so long – 4:55 p.m.

Complainant: U dont want the best – 4:55 p.m.

Complainant: U arent sorry – 4:56 p.m.

Complainant: U dont love me – 4:56 p.m.

Defendant: How do think I’m not sorry – 4:58 p.m.

Defendant: Smh – 4:58 p.m.

Defendant: I’m more then sorry – 5:00 p.m.

Complainant: How r u going to make things right – 5:02 p.m.

Complainant: U dont think to make anything wrong – 5:02 p.m.

Complainant: U get turned on – 5:03 p.m.

Complainant: And u want sex – 5:03 p.m.

Defendant: Give me time I can’t do everything you ask in one day [nickname] – 5:08 p.m.

Complainant: Actually u can – 5:08 p.m.

Defendant: Wow then call ur mom n tell her about us you can do that u actually can – 5:11 p.m.

Complainant: What that u choked me and hit me and had a knife to my throat – 5:12 p.m.

Complainant: And fucked another female – 5:13 p.m.

Complainant: There is nothing to tell – 5:18 p.m.

Complainant: Don’t change the topic or deflect – 5:19 p.m.

Defendant: Smh [nickname] really – 5:19 p.m.

Defendant: I’m not [nickname] – 5:19 p.m.

Complainant: U haven’t made anything right – 5:19 p.m.

Defendant: Made any what jay? – 5:26 p.m.

Complainant: May things right – 5:26 p.m.

Defendant: [nickname] I will give me time – 5:27 p.m.

Complainant: When – 5:28 p.m.

Complainant: What r u going to do – 5:29 p.m.

Complainant: When r u going to be honest, not hurt me, not lie – 5:30 p.m.

Defendant: Now – 5:30 p.m.

Defendant: [nickname] – 5:30 p.m.

Complainant: How – 5:31 p.m.

Complainant: Be honest – 5:34 p.m.

Complainant: Does that stuff turn u on – 5:35 p.m.

Defendant: What – 5:44 p.m.

Complainant: Does it turn u on – 5:45 p.m.

Complainant: To hurt me – 5:45 p.m.

Complainant: Cause u wanted sex the whole time – 5:45 p.m.

Defendant: No I wanted sex because I just wanted sex [nickname] why do you ask me dumb ass foolish questions – 5:51 p.m.

Defendant: Hello – 6:20 p.m.

Defendant: See why do you just disappear in the middle of a conversation – 6:21 p.m.

Complainant: Why did u want to Fuck me after – 7:27 p.m.

Complainant: U hurt me – 7:27 p.m.

Defendant: Because I been wanting you duh hello – 7:49 p.m.

Defendant: Like wake up – 7:49 p.m.

Complainant: But i looked like shit – 8:24 p.m.

Defendant: No you didn’t [nickname] why do you think that I didn’t say that why are you trying to accuse me for something I didn’t even mention? – 8:25 p.m.

Complainant: I was crying – 8:27 p.m.

Complainant: U pulled off my hair – 8:27 p.m.

Complainant: Take my make up off – 8:28 p.m.

Defendant: You look sweet naturally and – 8:29 p.m.

Complainant: No – 8:31 p.m.

Complainant: From our last fight where u ripped out my hair line – 8:36 p.m.

Complainant: Are u out – 8:42 p.m.

Defendant: I’m with Collin – 8:43 p.m.

Complainant: Doing what – 8:44 p.m.

Complainant: Why didn’t u answer – 9:19 p.m.

Complainant: Hello – 9:25 p.m.

Complainant: ? – 9:41 p.m.

Defendant: [video attachment] – 9:46 p.m.

Defendant: I dedicate that to you – 11:17 p.m.

Defendant: [music attachment]

COURT FILE NO.: CR – 19 –000-0044

DATE: 20220113

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T.A.

Defendant

REASONS FOR JUDGMENT

P. Campbell J.

Released: January 13, 2022

[^1]: Other evidence, as well as pre-trial motion materials, suggest it occurred on Tuesday, October 17. The difference is not material for the purposes of my analysis.

[^2]: It would have been helpful if the police had devoted as much attention to verifying the presence or absence of a weapon in this case, a sexual assault, as they do in other crimes involving violence. Execution of a search warrant at the defendant's residence could have assisted in evaluating the Crown's suggestion that the defendant, who used boxcutters at his work, also had one at his home. To the extent that readily available means of investigation may relieve a sexual assault case of its "he said, she said" quality, they are well worth pursuing.

R. v. T.A., 2022 ONSC 288

Case Summary

BACKGROUND

THE CROWN EVIDENCE

Text Messages on October 19-20, 2017

Physical Evidence

Testimony of V.K.

The Defendant's Evidence

FACTUAL FINDINGS

Overall Credibility

The Factual Issues to be Determined

Was the Physical Altercation an Assault?

Was the Assault a Sexual Assault?

CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 7

Legal Tests 2

Legislation 3