COURT FILE NO.: CRIM NJ(P) 1677/19

DATE: 2022 06 03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BERNARD LACOMBE

Keeley Holmes, for the Crown

Ian B. Kasper, for the Applicant

HEARD: February 28, March 1, 2, 3, 4, 9, 2022

REASONS FOR JUDGMENT

F. Dawson J.

[1] Bernard Lacombe is charged with sexual assault upon B.B. between December 1, 2017 and July 31, 2018. The trial on the single count indictment proceeded on the understanding that the Crown is seeking a conviction based on proof of any one or more of four incidents alleged to have occurred during the time frame of the indictment.

[2] The prosecution’s evidence consisted of the testimony of the complainant and the investigating police officer, and two sets of text messages alleged to have been exchanged between the complainant and the accused. Three brief agreed statements of fact (ASF) were also filed.

[3] The accused testified in his own defence that the incidents never happened and called one witness to support an alibi advanced in relation to one of the four incidents. The accused produced several photographs in support of the alibi. Numerous medical records related to the accused’s various health problems were filed on consent.

[4] The accused was 53 years old when he testified at trial. The complainant is an adult woman somewhat younger than the accused. It is common ground that they met on a dating app and commenced a relationship. The accused testified that he met with the complainant on at least a dozen occasions during their relationship.

[5] The accused testified that initially he was looking for a serious relationship. He hoped to father a son. However, after a short time he told the complainant he wanted something more casual.

[6] The complainant testified that she was hoping for something serious. Her mother was dying from cancer and she wanted a support person she could lean on. She was hospitalized twice for depression after her mother passed away during her relationship with the accused.

Overview of the Allegations

[7] I will review the central narrative under this heading. I will add further detail later under other headings, including when I deal with the admissibility of an important item of evidence in reply, which remained outstanding at the end of the trial.

[8] The complainant testified that she met the accused on a dating app in November 2017 shortly before her birthday, which is November 22. She said she and the accused communicated electronically for about a month before they met in person. Based on this evidence, the complainant puts her first in person meeting with the accused into December 2017.

The First Incident

[9] The first incident of alleged sexual assault occurred during the first in person meeting. The complainant said she agreed to go to the accused’s residence to watch a movie. The accused picked her up from her apartment in Mississauga and drove her to his basement apartment in Barrie. They arrived late in the evening.

[10] The complainant testified that upon arrival the accused offered her some Chinese food, which she declined. She said she started to fall asleep as they watched the movie. She testified that the accused then picked her up off the couch and carried her to a nearby bedroom where he placed her on the bed. She said she was sitting up on the bed. The accused undressed himself and then undressed her. She was wearing a sweater dress, knee high stockings and underwear. The accused removed her underwear. She testified that neither she nor the accused said anything during the undressing.

[11] The complainant said the accused then pushed her down on the bed, climbed on top of her and tried to penetrate her vagina with his penis. She said she repeatedly told the accused to stop and tried to push him off. She said she started to get really loud. At that point the accused told her to be quiet because there were tenants upstairs. The complainant’s evidence is that the accused was not able to fully penetrate her and after a short time he stopped trying. She said they then laid on the bed together and talked.

[12] The complainant stayed the night with the accused. She said the next morning he told her he had to go somewhere and left her at his residence alone. According to her, he told her that if anyone knocked on the door she should not answer it and mentioned something about his ex-wife.

[13] The accused testified that the incident described did not occur. He testified that he did not meet the complainant on the dating app until February 2018, around valentine’s day.

[14] The accused gave evidence that from 2016 until well into 2018 he lived with his girlfriend, Cheryl Morris, at an address on Yonge Street in Barrie. Ms. Morris testified they lived together until August 2018. The accused testified that his mother previously lived on Wessenger Drive in Barrie. However, she developed dementia and, at some point, was moved to Brampton to live with another relative. The accused testified that he continued to maintain the home on Wessenger Drive which was converted into a duplex with tenants both upstairs and downstairs. He said his driver’s licence was registered to Wessenger Drive and that he told the tenants not to answer the door, but if they did, to say they did not know him in order to avoid service of documents by his ex-wife. While he and Cheryl Morris had a downstairs tenant at Yonge Street, there was no need to avoid service there as his ex-wife was unaware of that address.

[15] The complainant testified that she was only at the accused’s residence in Barrie on one occasion, when the first incident occurred. The accused testified that he took the complainant with him to the Wessenger Drive at some point, but only to pick up clothes for his mother from a storage locker inaccessible to the tenants. He said the complainant was aware that he had advised the tenants to deny knowing him and said that the complainant “knew his whole story”.

[16] The complainant was asked why she continued to see the accused after the first incident. She said that she wanted to have someone she could talk to as she was going through a rough time caring for her mother. In cross-examination she added that she also liked the accused’s personality and thought the accused did not really rape her because he did not penetrate her fully and eventually stopped after she told him to.

The Second Incident

[17] The second incident is alleged to have occurred on Sunday, July 8, 2018 around 11:00 a.m. The complainant testified that after an exchange of text messages the accused arrived at her apartment. The accused was aware from the text messages that she did not want to engage in sexual intercourse. She was on her period. However, in his texts, the accused was insistent on having intercourse. The texts indicated that she might consider performing oral sex on the accused instead.

[18] These texts are important. I will set them out fully when I deal with the reply evidence admissibility issue, which concerns the authenticity of and weight to be given to these texts.

[19] The complainant testified that when the accused arrived she told him she was “not in the mood” for sex. The accused then asked for a blowjob and she agreed. She said she tried to perform fellatio, but the accused was not satisfied. He then grabbed her underwear and tried to pull them off. She had a sanitary pad inside her underwear. She tried to prevent the removal of her underwear. She said the accused became more aggressive and threated to tear her underwear off. At that point she said she would take them off for him.

[20] She testified that she was “really upset”. She said she was crying and that the accused told her to stop crying and to relax. She did stop crying and the accused then had sexual intercourse with her without her consent. She said that when he was finished he told her to lay still while he went to the bathroom to get toilet paper. However, she rolled over to stand up and the accused had to use the toilet paper to wipe semen up off the floor.

[21] The complainant testified that the accused then got into the shower, while she stood looking at the bathroom floor. She said the accused stuck his head out and said, “It wasn’t that bad was it?” She responded, “Yes it was”. She explained that she felt numb at the time.

[22] The complainant said they then dressed and went to a restaurant for breakfast before going to visit the accused’s mother in Brampton.

[23] The accused denies that this incident occurred. He testified that on the weekend of July 7 and 8, 2018 he was at a car show in Hamilton with Cheryl Morris. He testified that they slept in his van at the car show on both Friday and Saturday nights and did not return to Barrie until the afternoon of Sunday, July 8.

[24] As to the texts, which were marked as Exhibit 1 at trial without objection, the accused testified categorically that he did not send them, not that day and not any other day. His defence regarding the second incident is a complete denial, based on an alibi and disavowal of the texts in Exhibit 1.

[25] There are important issues that arise in relation to both the text messages in Exhibit 1 and the alibi evidence, which I will deal with later under separate headings.

The Third Incident

[26] The third incident is alleged to have occurred on Friday, July 20, 2018. It is common ground that on that day the accused picked the complainant up at her apartment, that they travelled together in the appellant’s van to a campground in Flamborough, near Hamilton, where there was a car show the next day. The couple slept in the van Friday night and attended the car show on Saturday, before driving home on Saturday evening.

[27] The complainant alleges that when the accused arrived to pick her up on July 20 he came up to her apartment and engaged in non-consensual sexual intercourse with her before they left for the car show.

[28] The accused, on the other hand, testified that he did not go up to the complainant’s apartment. He said she came down to his van upon his arrival and they left for the car show, stopping for food along the way. He denied having any sexual activity with the complainant in her apartment that day.

[29] The complainant asserts that when the accused came up to her apartment he touched her vaginal area under her clothing and commented that she had shaved her pubic area for him. She responded that she shaved for herself, not for him.

[30] At that point, she said the accused used his body to push her into the bedroom and onto her bed. She thought she was wearing shorts and a tee shirt, with no underwear. She said the accused got on top of her and penetrated her and started to have intercourse with her. She testified that she did not want to have sex with him. She said she was “just lying there”. She said the accused could not ejaculate. He told her he was “overheating”. She said the accused seemed annoyed.

The Fourth Incident

[31] The fourth incident is alleged to have occurred later on July 20, or perhaps into the early morning hours of July 21, when the accused and the complainant were preparing to sleep in the van at the campground.

[32] The complainant testified as follows. At the campground the accused made the back of the van into a bed. It was hot in the van and they undressed to go to sleep. At that point the accused grabbed her and told her he needed to cum. She told him “No”. He then kept trying to penetrate her as she tried to fight him off. She then gave up and he penetrated her. After a couple of minutes, the accused stopped and said he was “overheating” again and could not ejaculate.

[33] The complainant said she was experiencing a lot of pain in her vagina at that time but went to sleep. After a couple of hours, she got up and went outside to get some air and to use the washroom. When she got back into the van the accused woke up and tried to grab her again. At that point she said she sat up and ignored the accused and he gave up and went back to sleep.

[34] In cross-examination the complainant denied that there was a movie playing in the van. She denied that she smoked marijuana or that she took other medication. She denied that she was taking medication for her mental health issues.

[35] The accused testified that after he made up the bed the complainant went outside to smoke marijuana, which she knew he did not approve of. When she came back he pulled her towards him to “spoon” with her. However, she said she was having stomach pains. She also said she had to take her medication. That caused him to become very afraid because, based on past experiences, he knew her medication had “lots of adverse effects”.

[36] The accused testified that he asked the complainant if she “really had to” take her medication. He said it turned her into a zombie, that she became like a vegetable and that she did not know if it was day or night. He was afraid she might get out of the van and he would have to search for her in the woods. He said the complainant then took her medication. He said there was no attempt at sexual intercourse that evening.

[37] The accused also went into detail, particularly in cross-examination, about his erectile dysfunction. He testified that he needed a cool environment and air conditioning, as well as caressing and romance from his partner for him to obtain an erection and engage in sexual activity. As all of these were absent he was not expecting to engage in sexual activity with the complainant and did not attempt it.

[38] The accused testified in cross-examination that July 20 was the first time he had seen the complainant since he had a heart attack around April 26 or 27, 2018. He said he only brought the complainant to the car show because she called him and said that she was really lonely. He was concerned that the complainant might harm herself, as she had threatened to do in the past, if he did not see her. He said he felt obligated to bring her with him as a friend.

Subsequent Events

[39] On the morning of July 21 the accused washed his van and set it up for the car show. He said the complainant remained in a zombie like state sitting in a chair or sleeping throughout the day.

[40] The complainant, as already stated, denied she had taken medication as the accused alleged. She recalled that the accused won an award at the show. She testified that after the car show they drove back to her place. She said they discussed her experiences with other boyfriends during the drive.

[41] The accused said that he was angry, upset and discouraged by the complainant’s use of her medication. It caused him stress that he had to get rid of. He broke off his relationship with the complainant sometime that day. At one point he seemed to say it was on the way home and at another after they arrived at the complainant’s apartment.

[42] Both the complainant and the accused agree that they never saw each other again until the court proceedings. There were further communications, although there is conflicting evidence about the extent of those communications.

[43] An exchange of text messages and a phone call took place early on the morning of July 22, 2018. Those texts are filed as Exhibit 2.

[44] At 6:56 a.m. the accused texted the complainant asking, “you ok?” The exhibit indicates there was then a missed phone call. At 6:57 a.m. the accused texted, “2 police officers were here.” At 6:59 a.m. he texted, “????”.

[45] The complainant had not yet contacted the police about this matter. However, the accused testified that one of his tenants had contacted him to say that two plain clothes police officers driving an unmarked car had knocked on the door. They did not leave a card or contact information. The accused testified that he immediately thought the complainant may have harmed herself or that his ex-wife was responsible. He said he contacted the complainant to make sure she was alright.

[46] The complainant testified that after receiving the texts she called the accused. He asked her if she was okay and she wondered why he would be asking her that. She said the accused told her that two police officers showed up at his home. She said he then “went quiet”. When she asked why the police were there the accused said that it must have been his ex-wife.

[47] In cross-examination the complainant denied the accused said during their phone call that he was worried about her. She also said she did not think she had told the accused previously that she was depressed, nor did she think she had previously told the accused she had some suicidal thoughts. She also said she did not think she had previously threatened suicide if the accused left her. When pressed in cross-examination she said that it was not possible that she had done so.

[48] The complainant was cross-examined to suggest that on one other occasion she called the accused and left a voice message. She agreed. She also agreed that the accused did not respond and that they never spoke again.

[49] The accused testified in cross-examination that someone he believed to be the complainant continued to contact him repeatedly in various ways, even after charges were laid. He added that he could not prove it was her. This was not put to the complainant in cross-examination.

[50] The complainant testified that she only left one message for the accused shortly after their phone call on July 22, 2018. When she was cross-examined to suggest that throughout the relationship she had hoped for a future with the accused and that his sudden discontinuance of any contact provided her with a motive to make a false allegation, the complainant agreed with the former but disagreed with the latter. She explained that she had “mixed emotions” about the termination of the relationship. She said she had some sadness and was a little bit upset. However, she also indicated in re-examination that, while at first she had hoped for a relationship and children, later she started to think more clearly about things and realized that it was a pretty bad relationship. Her mixed emotions included feeling relieved that the relationship was over.

[51] The complainant went to the police concerning this matter on August 23, 2018. She said she did so after thinking about things, including her long-time regret for not complaining about something that had happened to her many years before.

The Outstanding Admissibility Issue Related to the Texts in Exhibit 1

[52] In this section I will deal with the admissibility issue that was not fully argued until the end of the trial. In doing so I will fully set out the texts in Exhibit 1 and discuss the complainant’s police statement in detail. In doing so I will add detail about how some other issues were disposed of during the trial.

[53] The admissibility issue relates to whether the way in which the complainant’s statement to the police unfolded should be admitted as circumstantial evidence to rebut any suggestion that she fabricated the texts in question. Crown counsel submits that, given an agreed fact that the complainant assigned the accused’s name to the number from which the texts were sent in her phone’s contact log, the accused’s testimony denying he sent the texts amounts to an allegation the complainant fabricated the texts. I am satisfied that it is an obvious implication that I must address: R. v. Aslami (2021), 155 O.R. (3d) 401, 2021 ONCA 249, at paras. 11, 30.

[54] Exhibit 1 consists of photographs taken by Cst. Gerulath of the texts on the complainant’s cell phone which relate to the second incident. The complainant testified that, based on what she observed on her cell phone during her police interview, the texts were exchanged on July 8, 2018. However, the date was not captured in the photos taken by Cst. Gerulath.

[55] Cst. Gerulath testified that he recalled seeing a date displayed on the complainant’s phone but did not record it in his notes as he thought it was captured in the photos. He could no longer recall the date at the time he testified. I observe that the accused did not take issue with the date, as his alibi is tied to that date. The accused cross-examined the complainant to support that date being associated with the second incident.

[56] The text exchange contains emojis which are difficult to describe and are best evaluated by examining the exhibit.

[57] The texts read as follows:

Accused: (9:12 a.m.) Good morning

Complainant: (9:12 a.m.) Morning

Accused: (9:14 a.m.) Jumping in the shower now

(9:14 a.m.) So I will be there around 10:30 11:00

Complainant: (9:14 a.m.) Was just about to text that

(9:15 a.m.) KK

Accused: (9:15 a.m.) Clean that pussy. (3 emojis)

Complainant: (9:15 a.m.) What I can’t do anything

Accused: (9:16 a.m.) Dont care

(9:16 a.m.) (emoji)

Complainant: (9:16 a.m.) I hope you’re joking

(9:16 a.m.) Seriously (emoji)

(9:16 a.m.) I will have really bad cramps

Accused: (9:16 a.m.) Nope it’s going in anyways in the shower

Complainant: (9:16 a.m.) Noooooo

(9:17 a.m.) I can’t

Accused: (9:17 a.m.) Babe (emoji)

Complainant: 99:17 a.m.) You will have to wait for a couple more days.

Accused: (9:17 a.m.) No

(9:17 a.m.) Takey 5 minutes lmao

Complainant: (9:17 a.m.) I will end up in the hospital again

(9:17 a.m.) In pain

Accused: (9:18 a.m.) Then suck on it

(9:18 a.m.) Lol

Complainant: (9:18 a.m.) Hmm

(9:18 a.m.) We’ll see lol

Accused: (9:18 a.m.) I’m horny baddddd

Complainant: (9:19 a.m.) When aren’t you?

Accused: (919 a.m.) K showering now

Complainant: (9:19 a.m.) KK

[58] The accused does not take issue with the admissibility of the texts. Counsel for the accused acknowledges that the standard for authentication of electronic messages is relatively low. As held by Watt J.A. in R. v. C.B., 2019 ONCA 380, at paras. 64-68, authentication sufficient to support the admissibility of real evidence only requires some evidence, either direct or circumstantial, that the item of evidence in question is what it purports to be.

[59] The complainant testified that the texts came to her from the accused on Sunday, July 8, 2018 before the accused arrived at her apartment. She explained that she and the accused also communicated the day before about getting together on July 8. The texts in Exhibit 1 are displayed under the name “Bernard Styles Lacombe” when viewed on the complainant’s phone. ASF #3 (Exhibit 8) establishes that that name was a contact log entry the complainant assigned to the phone number from which the texts were transmitted. This does not establish that the text exchange was with the accused’s phone number, because the complainant could have assigned that name to any number, but all the evidence just referred to is some evidence of authenticity.

[60] However, counsel for the accused points to the lack of any more reliable confirmatory or expert evidence and submits that I should critically evaluate whether the texts are genuine and assign them little weight. Counsel relies on Aslami in this regard.

[61] In his testimony the accused denied that he sent the text messages on July 8 or any other date. Prior to that it was not known precisely what the accused would say about those text messages. The accused’s police statement is at least ambiguous in relation to whether he sent the messages.

[62] Counsel for the accused does not take issue with the admissibility of the proposed evidence on the basis that it is improper in reply. Indeed, when Crown counsel tried to tender the same evidence as part of her case, defence counsel objected. At that point counsel submitted that the appropriate time to consider the Crown’s submission would be in reply, should the accused testify that he did not send the text messages at any time. I turn now to the issue as it was argued.

[63] Crown counsel submits that the way in which the complainant’s statement to the police unfolded provides after-the-fact circumstantial evidence which rebuts the implication that the complainant fabricated the texts. I conclude that there is merit in this submission sufficient to gain admissibility of the complainant’s statement for the limited purpose of evaluating whether the texts are genuine and determining how much weight to give them.

[64] I expressed my concern that I did not want the record to be filled with prior consistent statements, as would occur if Crown counsel proceeded by ploughing through the complainant’s entire statement to demonstrate the way in which it unfolded. As a result, counsel cooperated to prepare a redacted version of the complainant’s statement, Exhibit E, pending my ruling on admissibility. It is admissibility of this document that is contested.

[65] I turn now to the crux of the matter. The complainant’s interview commenced at 21:41 hours on August 23, 2018. It concluded at 22:41. The transcript of the interview is 36 pages long. At pp. 6 and 7 Cst. Gerulath advised the complainant he wanted a “pure version statement”. He explained that the complainant should tell her story from start to finish, beginning with whatever she felt to be important and ending wherever she felt was appropriate. Cst. Gerulath reinforced that instruction at p. 9 of the transcript.

[66] The complainant then began by telling the officer that on July 19, 2018 the accused called her and asked her if she would like to go to a car show. For over five pages the complainant spoke of events related to her attendance at the July 20, 2018 car show which encompassed incidents three and four.

[67] Cst. Gerulath then asked the complainant how she met the accused. The complainant recounted meeting the accused on a dating app and communicating with him for a time before he picked her up and took her to his place. She did not disclose the alleged incident in Barrie at that time.

[68] The officer then asked if she and the accused started a relationship. She said they did. When asked if everything was consensual, at pp. 18-19 she said no, and explained that she was not very comfortable having sex with the accused. She said that almost every time she would refuse but then “would just give in because I felt that’s what I was supposed to do as a girlfriend”. She added that she and the accused discussed having sex and whether it would be a problem. She said the accused told her he needed sex and wanted to be taken care of and wanted to take care of her as well. She said she agreed to that and “decided” to give in every time even though she did not really want to.

[69] Cst. Gerulath then asked if there was something about the incidents that she was reporting that stood out in her mind as different. She said that there was, because during the incidents she was reporting, she was struggling and fighting with the accused rather than giving in to him. The complainant adopted this part of her statement when it was put to her in cross-examination.

[70] In view of this evidence, in closing submissions counsel for the accused conceded that the complainant’s comments that she often decided to give in do not raise any issue of consent in relation to the four incidents under consideration.

[71] The interview then continued to deal with the events of July 20, 2018.

[72] Then, at p. 22, the officer asked the complainant where she would “like to go with this”. He described various options, including a warning or charges. She said she had not thought about that much. She then indicated that she would like charges to proceed.

[73] At p. 24 the complainant advised Cst. Gerulath that there was another incident where she struggled, adding, “but this happened almost two months ago”. Cst. Gerulath began to ask the complainant about that. The complainant then told Cst. Gerulath about the second incident. She thought initially that it was in June. She described the general nature of the text exchange that preceded the incident. She remembered that at one point the accused texted her an angry emoji. There are then approximately three and a half pages of redacted transcript where the July 8 incident is discussed.

[74] At p. 29 Cst. Gerulath began to question the complainant more closely about the date of the incident. The complainant said she could not remember the date. Only then did she mention that the date would be on her texts. The officer asked her if she had the texts with her. She said she did. The officer told her she could turn her phone on if she wanted to. After the complainant turned on her phone she said, “It was 2018, 7, 8”. The officer confirmed the date was Sunday, July 8, 2018.

[75] Even to that point the complainant had not shown the text messages to Cst. Gerulath. It was only when he asked if he could see the messages that she showed him the texts. She agreed he could photograph the texts after the interview.

[76] The circumstances surrounding the disclosure of the text messages are reliably demonstrated by the video recorded interview. Those portions of the video were played in court and made exhibits. These circumstances are reasonably capable of being viewed as inconsistent with the complainant having fabricated the texts or having manipulated her phone to show texts from another source as originating from the accused. Had she fabricated the texts she would likely have put them front and centre when complaining to the police. Instead, the texts emerged only as an afterthought. They had to be coaxed out by Cst. Gerulath, who was trying to determine the date of the incident. Even after the complainant activated her cell phone to view the texts, she initially only gave the officer the date. These circumstances are after-the-fact conduct which have value as circumstantial evidence in relation to whether the texts are genuine.

[77] In opposing admissibility counsel for the accused focused on the fact that the complainant was never asked what her intentions were when she went to the police. Initially counsel advanced an argument that this evidence was hearsay tendered to prove the complainant’s state of mind, but which did not fit into the state of mind and present intention exception to the hearsay rule, citing the limitation to that exception set out in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at paras. 67-69.

[78] I confess that I do not understand this argument. To be hearsay there would have to be an out-of-court statement, if not verbal, an assertion by conduct. The evidence is the way in which the statement was given, not the statement itself. Here the conduct in question is the opposite of assertive. It is the lack of assertion inherent in the circumstances surrounding the eventual production of the text messages that provides the evidence with its probative value in rebutting the inference that the complainant fabricated the text exchange. Whether the texts are genuine is a material issue and the unfolding circumstances surrounding their production is relevant to that issue.

[79] When the admissibility issue was fully argued at the end of the trial counsel for the accused said he was not certain the evidence was hearsay. He agreed the evidence was relevant but submitted its probative value is exceeded by its prejudicial effect. Its probative value is said to be limited because it is tendered to establish the complainant’s state of mind in circumstances where she was never asked about what her intent was in not showing the texts to the police initially. Counsel submits that there could be various reasons why she did not bring up the texts and she was never asked about that. The submission is that this context of unknowns diminishes the probative value of the evidence.

[80] Counsel also submits that there may be a variety of explanations for the texts being assigned to the accused in the complainant’s contact logs. Perhaps she saw unassigned texts on her phone and, erroneously believing they came from the accused, saved them in a way that put the accused’s name on them. The submission continues that, as the complainant was never asked how the accused’s name was assigned to the texts, it is not open to the Crown to make the argument now advanced.

[81] Similar submissions are made with respect to prejudicial effect. The defence submits that as there is no evidence about how the complainant knows the texts came from the accused and as she was never asked about why she did not disclose the texts initially, prejudicial effect is increased because the evidence may be misapprehended or given excessive weight. Counsel submits that the issue did not crystalize until after the complainant had departed the witness stand. Therefore, the fairness of the trial will be negatively impacted if this evidence is admitted.

[82] Whether the texts are genuine is a material issue. The accused concedes that the way in which the complainant’s police statement unfolded is relevant to that issue. I agree with that concession. It follows that this evidence is admissible unless it is excluded by another rule of evidence, or its probative value is exceeded by its prejudicial effect.

[83] I do not see how the evidence can be viewed as hearsay. Counsel for the accused also resiled from that position. No other rule has been identified which would exclude the evidence. The evidence is relevant. That means it has some probative value in relation to the material issue identified.

[84] That brings me to prejudicial effect. During submissions I raised the decision in R. v. Frimpong, 2013 ONCA 243. Para. 18 of Frimong reads:

A trial judge can exclude evidence offered by the Crown where the prejudicial effect of the evidence outweighs its probative value. Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge’s instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge’s instructions.

[85] Frimpong was an identification case. The appellant sought to exclude a witness’s identification evidence which had low probative value. After the quoted passage the court said that because the eyewitness’s evidence could be fully tested by cross-examination and the identification process was documented, the weaknesses in the evidence could be fully exposed to the trier of fact. Consequently, there was no prejudice. At para. 21 the court held: “Absent prejudice, a trial judge cannot exclude evidence solely on the basis the judge thinks the evidence has little probative value.”

[86] While this case and Frimpong are not on all fours, I find Frimpong helpful in resolving the issue before me. Prejudice in the sense described in Frimpong is substantially absent here. The prejudicial effect to be considered is whether there is a danger of misuse of the redacted statement or whether the admission of the evidence raises trial fairness concerns.

[87] Addressing the danger of misuse, this is a judge alone trial. I am cognizant that the evidence is tendered for the limited purpose of rebutting the suggestion the texts were fabricated. Everyone agrees the texts are admissible. Their weight is to be determined later, in the context of all the evidence. I am aware of the need to carefully evaluate the weight to be given to the texts, as developed in Aslami.

[88] Regarding trial fairness, when Crown counsel attempted to tender this evidence while the complainant was testifying, the accused objected on the basis that it was premature to do so until the accused’s position regarding the texts was known. Crown counsel’s theory of admissibility was fully outlined at that time. Throughout the trial counsel for the accused demonstrated that he was capable and well prepared. He must have known this issue would emerge if his client testified. It was a case where that would likely occur. He chose not to ask the complainant any of the questions, the unknown answers to which he now submits result in prejudice.

[89] I do not intend to be critical of counsel in making this comment. No doubt counsel had a tactical reason for taking the position he did. However, in terms of trial fairness considerations, I am of the view that the defence had the opportunity to cross-examine the complainant in relation to her mental state, purpose and intent in going to the police and not initially disclosing the texts. That is the subject counsel focused upon in his submissions to exclude the evidence based on overriding prejudice.

[90] In Frimpong, the court made a point of noting that the entire identification process in that case was documented. Here the same cannot be said in terms of the texts displayed on the complainant’s cell phone. No evidence was led to establish the number from which the texts originated or to link such number to the accused. No expert or independent evidence was led of an examination of the complainant’s cell phone. I have taken that into account. However, I am of the view that the way in which the complainant’s police statement unfolded has substantial probative value based on common sense and human experience. While there may be some prejudicial effect, in a judge alone trial and where there was an opportunity to cross-examine on issues that had arisen when the witness was still testifying, it is minimal. I conclude that the balance is clearly in favour of admissibility. The evidence is admitted.

The Issues in the Case

[91] The accused denies non-consensual sexual contact alleged with respect to each of the four incidents. In addition, he denies that he was even with the complainant when incidents one and two are alleged to have occurred. The credibility of the complainant and the accused occupies centre stage.

[92] The complainant and the accused were each cross-examined extensively on their prior statements. The complainant’s prior statements consist of her video recorded interview by Cst. Karl Gerulath on August 23, 2018 and her testimony at the preliminary inquiry on July 9, 2019. The accused provided a video recorded statement to Cst. Gerulath on August 24, 2018 following his arrest. That statement was admitted to be voluntary and was used only to cross-examine the accused.

[93] There is also the accused’s alibi to be considered. I will deal with that under a separate subheading in my analysis.

[94] While there is only one count in the indictment, there are four alleged incidents, proof of any one of which must result in a conviction. I have cautioned myself that I must not use evidence tendered only in relation to proof of one of the four incidents to assist in proof of any of the other incidents. This is the same instruction I would give myself if the indictment contained four counts.

[95] That said, my assessment of the overall credibility and reliability of any witness may be legitimately impacted by my assessment of the credibility and reliability of their evidence in relation to any issue on which they gave testimony.

The Position of the Defence

[96] The accused makes no specific submissions in relation to proof of non-consent to the sexual activity alleged and stipulates that honest belief in communicated consent is not in issue. The focus of the accused’s submission is on the credibility and reliability of the evidence in relation to whether the incidents happened.

[97] It is the defence position that neither the complainant nor the accused were “perfect” witnesses. However, the accused points to numerous alleged inconsistencies in the complainant’s testimony and submits that there is some evidence of a motive for the complainant to fabricate false allegations because she wanted a relationship but was rejected and subsequently “ghosted” by the accused.

[98] It is the defence position that the texts related to July 8, 2018 do not constitute confirmatory evidence of the complainant’s testimony because there is no evidence independent of the complainant to confirm that the texts came from the accused.

[99] The submission continues that while the defence evidence has some flaws it ought not to be rejected. Counsel submits that when the accused was being interviewed by the police he was in an understandable state of confusion with respect to dates and the events the officer was asking him about, such that some of the inconsistencies alleged in the accused’s evidence have not been established or should be given little weight. Counsel for the accused submits that at least at the second or third stage of the W.D. analysis I should harbour a reasonable doubt.

The Position of the Crown

[100] Crown counsel submits that nothing in those parts of the complainant’s statement which were put to her are indicative of consent in relation to the four incidents in question. As previously indicated, although there was some cross-examination by the defence on that issue, defence counsel later abandoned any argument in connection with that approach.

[101] Crown counsel submits that none of the inconsistencies alleged in the complainant’s evidence are indicative of a lack of credibility. The complainant gave a credible explanation as to why she continued to see the accused. As to motive to fabricate, the submission is that the accused’s evidence concerning the complainant’s threats to harm herself are not credible. The court should accept the complainant’s evidence that she did not make such threats. Counsel submits that it would be wrong to make a leap from the complainant’s depression and anxiety to a finding that she is unreliable, not credible, or prone to fabrication.

[102] Crown counsel submits that in his statement the accused admitted that he sent the texts in Exhibit 1, admitted he had gone up to the complainant’s apartment in relation to incident three and raised July 20 before Cst. Gerulath had told him of a sexual assault allegation on that date.

[103] Crown counsel also submits that the texts the accused sent to the complainant on the morning of July 22, 2018 demonstrate he was aware he sexually assaulted the complainant on July 20.

Analysis

The Alibi

[104] The accused testified that he could not have committed the acts alleged on Sunday, July 8, 2018 because he was at a car show in Hamilton with Cheryl Morris. He said they travelled to the car show Friday evening, slept in his van both Friday and Saturday nights and did not arrive home in Barrie until Sunday afternoon.

[105] The accused produced six photographs taken at the car show. He and Ms. Morris are seen together in one of the photos and he is seen alone in four of the photos, posing in front of tractors which were on display. One photo depicts the accused’s custom painted van hooked to a trailer with a motorcycle displayed on a ramp behind the trailer. The photos (Exhibit 6) are in electronic form and have the date of July 8, 2018 displayed to the side of each photo. The photos have time stamps from 8:55 to 8:56 a.m.

[106] Although the date displayed beside the photos is July 8, 2018 the accused testified the photos were all taken the day before. They were taken by Cheryl Morris on her cell phone and transmitted by text to his cell phone. He explained he would often “crop” photos sent to him and then take screenshots of the resulting images. The photos produced at trial are screenshots. It is an agreed fact that the dates and times depicted represent when the screenshot was made. As none of the photos were taken on July 8, they are of limited value in supporting the accused’s alibi.

[107] Cheryl Morris was called as a defence witness. She testified that she met the accused in December 2016 and that they lived together on Yonge Street in Barrie from June 2017 until late August 2018. She said that she and the accused regularly attended car shows on weekends in the summer months. When she was shown copies of the car show photographs with the date redacted, she said that she recalled taking all but one of the photos. When asked the date of the car show she could only say that it was in 2017 or 2018, adding that she thought it was in 2017. She said she had since deleted the original photos.

[108] Ms. Morris believed the car show was in Burlington or Hamilton. She thought they drove to the car show on Friday and slept in the van. She recalled that the car show itself was on Saturday at a Legion Hall or community centre.

[109] Significantly, Ms. Morris did not recall sleeping in the van a second night, although she said she was not sure. In cross-examination she said the accused would complain of pain when sleeping in the van. It is an agreed fact (Exhibit 5) that the accused has several back and neck problems.

[110] In summary, Ms. Morris’s evidence is of little assistance in supporting the accused’s alibi.

[111] Cst. Gerulath testified that he was provided with a notice of alibi which was served on Crown counsel in November 2021 (Exhibit C). The details provided were adequate to permit the police to investigate the alibi. The notice included Cheryl Morris’s contact information, that the car show was at a Royal Canadian Legion in Hamilton and that tractors were also displayed. Cst. Gerulath interviewed Cheryl Morris. He testified that he could not locate any record of a car show matching the information he was provided. He said he looked for such records by conducting internet searches. He said he was able to find quite a few records for car shows in Ontario. He found a few records for car shows on July 8, 2018 but none were in Hamilton. The closest was in Welland. He contacted the organizers of the Welland show but they had lost their records due to a ransomware attack.

[112] Cst. Gerulath agreed that he made no attempt to contact any branches of the Royal Canadian Legion. This is a serious shortcoming in his investigation for which he offered no explanation. This limits the value of his evidence in relation to the accused’s alibi.

[113] I conclude there is little to support the accused’s alibi beyond his own testimony. There is evidence that the accused often took his van to car shows on summer weekends. In terms of the one other car show I heard detailed evidence about, it was on a Saturday and then the accused headed for home on Saturday evening. That is the purport of Cheryl Morris’s evidence regarding the car show where she took the photos, although she could not be sure.

[114] The timestamps related to the screenshots of the car show photos are from 8:53 to 8:57 a.m. on July 8, 2018. The texts the complainant says she received from the accused commenced at 9:12 a.m. on July 8, saying that he would arrive at her apartment at around 11:00 a.m. Aside from the accused’s testimony, the evidence allows for the possibility that the accused took screenshots of the car show photos when he was at home in Barrie on Sunday morning and then contacted the complainant and attended at her home.

[115] The alibi is not supported by evidence independent of the accused. However, the alibi has not been proven to be false. The alibi evidence, therefore, remains to be considered together with the rest of the evidence in determining whether the Crown’s case has been proven beyond a reasonable doubt. I recognize that evidence of an alibi that has not been established may nonetheless contribute to a reasonable doubt.

The Evidence of the Accused

[116] As the focus of much of Crown counsel’s attack on the accused’s credibility was based on what he said in his police statement, I will start there. I note that unlike a non-accused witness, what an accused says in their out-of-court statements can be considered as substantive evidence even if the accused fails to adopt the statement when testifying.

[117] I am not persuaded the accused admitted in his statement that he sent the July 8 texts in Exhibit 1. When Cst. Gerulath raised the content of the texts the accused said he sent such sexual texts all the time but categorically denied the allegations the officer was putting to him. When I thoroughly examine all the words exchanged between the officer and the accused on this subject I am not persuaded that the accused made an admission that he sent the texts in Exhibit 1.

[118] During the interview it was the accused who first mentioned the date of July 20, 2018 in relation to the allegations the officer was presenting to him. Crown counsel cross-examined the accused extensively as to why he would have done so unless he sexually assaulted the complainant on July 20. The accused said it was because he became confused. He explained that he was looking at his phone as the officer was setting out the allegations. He explained that he did not have access to data on his phone when away from Wi-Fi. He could see photos on his phone but did not have access to the dates. He said that during the time the officer was talking about July 8 he thought the officer was talking about July 20 because he knew he had been with the complainant at a car show on July 20, 2018.

[119] I have carefully reviewed the transcript of the accused’s cross-examination and the relevant portion of the accused’s statement. It seems to me that the accused may have been confused as he said he was. The interview transcript confirms that the accused was looking at his phone and trying to determine dates and answer the officer’s questions. I am not prepared to draw the inferences Crown counsel would like me to draw from this part of the accused’s cross-examination.

[120] I observe that there was confusion on the part of the officer as well as on the part of the accused during the interview. At points the officer put things to the accused which were factually incorrect. It is also apparent that the officer became confused when the accused said, at one point, that there was a time when the complainant was on her period and did not want to have sex with him. The officer thought the accused was referring to the July 8 incident. However, when the transcript of the interview is closely examined it appears that the accused was referring to a time when he was with the complainant before he had his heart attack. The heart attack was in late April 2018, although at the time of the interview the accused thought it was in May.

[121] In connection with the part of the statement I have just referred to, Crown counsel cross-examined the accused to suggest that when he told the officer he was fooling around with the complainant but she was on her period and then said he told her to pack her stuff so they could go to the car show, he was admitting that he went up to her apartment on July 20 (incident three).

[122] Based on the entire cross-examination and transcript of the police statement I am unable to conclude the accused made the admission the Crown submits he did. The complainant was not on her period on July 20. When I untangle all that was said during this part of the interview it seems the accused is referring to the time before his heart attack. Some parts of what the accused said do, however, sound like the July 8 incident, where the accused advances an alibi. There is too little clarity in the parts of the accused’s cross-examination that I have referred to and in the accused’s police interview for me to draw some of the conclusions Crown counsel suggests.

[123] That said, there are parts of the accused’s cross-examination which I find significantly impair his credibility, particularly when considered cumulatively. I will deal with them in the order they arose in cross-examination, not in order of their significance.

[124] Crown counsel suggested to the accused that he was home by the morning of Sunday, July 8, 2018 where he screenshot the photos of the car show and then sent the complainant the texts in Exhibit 1 before driving to the complainant’s and assaulting her. The accused denied that. After saying that he did not arrive home until Sunday afternoon he pointedly added that he can only drive for one hour at a time due to his back. He said he could not have driven home from the car show and then back to the complainant’s in Mississauga. Yet at another point in his evidence has said that, after recovering from his heart attack, he spent a month driving around Ontario. When he was confronted about this apparent inconsistency, he claimed that his drives were all short, which was not what it sounded like when he originally gave that evidence.

[125] Of considerably more significance, the accused painted a picture of not being interested in having sex with the complainant on July 20. He went to considerable lengths to do so in cross-examination. He said that he only took the complainant to the car show because she called him saying she was lonely and he felt obligated to take her. He said he did not want to bring her. He also went into great detail about his erectile dysfunction, explaining that to get an erection it had to be cool out or air conditioned, his partner had to be romantic and his penis needed to be caressed. He indicated that he had no interest in sex on July 20 and that even if the complainant had wanted to have sex it was not going to happen due to the prevailing conditions.

[126] The accused’s evidence was given in an exaggerated and overblown manner. It is also inconsistent with what the accused said about sexual activity at pp. 10-11 of his police statement. There, in reference to incident four, he said: “So we started. And she says, I can’t, I can’t, it hurts”. He said the complainant claimed she had pain in her lower abdomen. “So I said, well, babe, I said geez, man, like you know, it’s nice to have a honeymoon and all that stuff but, I mean its nice having my sex too when I can have it, because she knows I have limitations.” The accused went on in his police statement to say “… she took a flip and says, no, I don’t wanna do it.”

[127] I conclude that the accused told the officer both that they started to have sexual activity and that he was unhappy or disappointed when she said no. This is completely at odds with the exaggerated profession of both a lack of interest and a lack of physical ability that was emphasized by the accused throughout much of his cross-examination. It is inconsistent with his testimony that he was not aroused or interested in sexual activity.

[128] The accused’s evidence is also inconsistent with comments found in one of the medical reports included in Exhibit 7. In a report prepared by Dr. Hani Alasaad in relation to April 25, 2017, found at p. 36 of Exhibit 7, the doctor wrote that the accused reported that his “sex desire and potency” were good.

[129] It is apparent from the report that the accused had been diagnosed with erectile dysfunction and hypogonadism but that he was being treated with medications, including testosterone. His testosterone was reported as being in the low-normal range. The treatment plan was to continue the medication to keep free testosterone at the mid to upper normal range.

[130] The accused’s evidence regarding his erectile dysfunction was also contradicted by Cheryl Morris. When Ms. Morris was asked if the accused had any erectile dysfunction during their time together, she was visibly dumbfounded and incredulous. She said that was not the case during her time with the accused. She said that as far as she was concerned the accused’s penis worked normally. She said there was “no trouble in that department”. She said they broke up in August 2018.

[131] I conclude that Cheryl Morris’s evidence is consistent with what the accused said to Dr. Alasaad and inconsistent with the accused’s responses when he was cross-examined on this subject. I accept Cheryl Morris’s evidence. Although she and the accused had broken up, she gave her evidence in a fair manner. It was not suggested to her in cross-examination that there was any bad blood between herself and the accused.

[132] It is convenient at this point to deal with another matter impacted by Dr. Alasaad’s report and Cheryl Morris’s evidence.

[133] The accused testified in relation to the first incident that due to his neck and back problems it would have been impossible for him to have lifted and carried the complainant from the couch to the bedroom. However, I note that in the same report from Dr. Alasaad he wrote that the accused had increased his physical activity and that “he works out regularly in a gym now”. When the accused was cross-examined about this he said he did “physiotherapy” at the gym. He maintained that lifting the complainant would not have been possible.

[134] Cheryl Morris was asked about the accused’s ability to lift things. She said that despite his back issues he would try to lift things but would complain of back pain on a regular basis. She said he would complain if he lifted a lot or did anything strenuous.

[135] It is an agreed fact that the accused had back and neck injuries and other health problems. However, the evidence is that the accused weighed 225 pounds at the time he met the complainant. She weighed 110 pounds. Given Dr. Alasaad’s report and Cheryl Morris’s evidence I do not accept that the accused would have been unable to carry the complainant the short distance from the couch to the bedroom.

[136] There is another inconsistency in the accused’s evidence that I find to be quite significant. When testifying, the accused emphasized that on July 20 he asked the complainant not to take her medication. He said that he became very upset when she went ahead and took it because, based on experience, he knew she would enter a “zombie like” state. He also said she smoked marijuana, which she knew he disapproved of. The accused linked the complainant taking her medication to his contention that he had no sexual desire for her and would not have been able to get an erection. He testified that the next day the complainant knew he was upset and apologized to him, not because she refused any sexual advances, but because she took her medication.

[137] Even though this was a central feature of his account of the fourth incident, the accused did not mention in his police statement that the complainant took medication which had a profound effect on her or smoked marijuana. Nor did he advise the officer that he was upset by that on this occasion. The only reference in his police statement to the complainant taking medication is found at p. 17, where he said that on one prior occasion the complainant was “medicated to the nine” when he took her to a restaurant.

[138] When the accused was pressed on this in cross-examination, he mentioned another time at a theatre where the complainant was highly medicated. Then, in what seemed like an afterthought, the accused claimed that he told Cst. Gerulath that the complainant was “stoned” on July 20. He said he mentioned it in “chitchat” not recorded on video before he left the police station. This explanation is highly suspect and sounds more like a reference to marijuana than to medication. In any event, it does not explain why the accused left such a central feature of his trial testimony out of his formal detailed police statement.

[139] This is not a situation where I am using the accused’s pretrial silence in contravention of the right to remain silent as an admission or as evidence of consciousness of guilt. This is a situation where the accused decided to provide a voluntary statement to the police and spoke freely about events on July 20, denying the complainant’s allegations. In these circumstances his failure to mention what is now a central part of his account of events constitutes a significant inconsistency which negatively impacts his credibility. See R. v. Kiss, 2018 ONCA 184, at paras. 35-42, in relation to the legal consideration I have just referred to.

[140] As the cross-examination of the accused continued he became more inconsistent. For example, as already mentioned, early in his cross-examination it was suggested that when he told Cst. Gerulath that he sent sexual texts all the time he was admitting to sending the texts in Exhibit 1. He agreed that he sent sexual texts to the complainant but maintained he did not send the texts in question. However, during cross-examination towards the end of March 3, 2022 the accused gave a number of lengthy rambling answers where he said he did not send those sorts of sexual texts to the complainant. His position changed to that he sent such texts to his ex-wife. He said all women were different and that he never once texted the complainant that sort of text.

[141] As the cross-examination progressed the accused’s position would shift around. He became more argumentative and interruptive of the questions. He would add details that seemed superfluous and obfuscatory, or which were relevant and which one would have thought would have been part of his earlier evidence if true. Still later in his cross-examination, when being asked about his erectile dysfunction and medical issues, the accused sparred with Crown counsel and was deliberately unhelpful in some of his responses. For example, he said at one point that he did not know “how my penis felt four years ago”. Yet he spent considerable time earlier in his evidence describing just that. When Crown counsel suggested it was working fine, something for which there was evidence, the accused responded, “Well, I am happy that you think that.”

[142] Overall, I am of the view that the accused’s attitude and the disposition he exhibited in giving his evidence contributed to inconsistencies and detracted from the credibility and reliability of his evidence. In addition, based on the more significant inconsistencies I have identified, I conclude the accused exaggerated his erectile dysfunction and misrepresented and exaggerated the complainant’s mental state and drug use.

The Evidence of the Complainant

[143] Throughout the complainant’s evidence it was apparent that she was having difficulty remembering some details of the events. She would sometimes pause before answering and say, “give me a minute”. I found that unusual and it caused me to increase my scrutiny of her evidence. However, I observe that this trial took place over four years after the first incident is alleged to have occurred. The accused also expressed difficulty with remembering some details for this reason.

[144] In addition, the complainant testified that she had made an error about the start date of the trial. She thought it was to commence two weeks later than it did. Consequently, she did not fully review the transcripts of her police statement or preliminary inquiry testimony, which were sent to her by Crown counsel for preparation. She only learned of the commencement of the trial on the morning of the trial and had an abbreviated meeting with Crown counsel to prepare for her testimony. This is a factor to be considered, although I have cautioned myself that it cannot be an excuse for a clear and significant inconsistency between her testimony and any prior statements.

[145] The complainant gave her evidence in a calm and even-tempered manner. She did not exhibit anger or vitriol towards the accused. She was not argumentative or evasive in cross-examination. I could detect no exaggeration and the complainant seemed to make her best efforts to answer questions in both direct and cross-examination.

[146] I recognize that demeanour plays a limited role in the assessment of credibility. However, I did not see anything in the way the complainant testified that raised concerns that she was out to get the accused or to enhance or shade her evidence to favour a particular outcome. The complainant’s demeanour tended more towards the respectful or deferential than the assertive end of the spectrum. Nothing I observed in the complainant’s demeanour or the manner of giving her evidence leads me to downgrade her credibility.

[147] There are, however, several inconsistencies in the complainant’s evidence. They have been placed into a helpful chart prepared by defence counsel. I will deal with each of them in turn. The greatest number of inconsistencies relate to the first incident in December 2017.

[148] The first inconsistency relates to the complainant’s failure to mention the first incident until she testified at the preliminary inquiry. She initially told Cst. Gerulath about the third and fourth incidents. When the officer asked her about the start of her relationship with the accused, she mentioned their first meeting at his home in Barrie. However, she did not mention any sexual activity, consensual or otherwise. When asked why she had not done so she said she did not want to feel “even more embarrassed”. Yet she then went on to describe the second incident, where she alleged non-consensual intercourse while on her period.

[149] The accused submits that the complainant’s explanation for her failure to disclose the first incident to the police lacks credibility and submits that the credibility and reliability of her evidence overall should be negatively impacted because her story has evolved.

[150] I agree this is a significant omission. However, in evaluating its impact on my assessment of the complainant’s evidence I also consider the following factors. First, it is well known that victims of sexual assault frequently make disclosure in a piecemeal fashion. This does not necessarily mean the subsequently alleged misconduct is untrue or that the complainant generally lacks credibility. Second, when being asked about the beginning of the relationship and whether everything was consensual, the complainant said that she was uncomfortable having sex with the accused and would usually resist but then give in because she thought that is what a girlfriend did. Third, and quite significant, the complainant testified that she did not think the accused had raped her on the first occasion when they met because there was only partial penetration and he eventually stopped as she requested. While the complainant did not advance this third point together with her excuse of embarrassment, I accept her evidence that at that time she felt no offence had been committed.

[151] Putting all of this together, I do not see this alleged inconsistency as having a significant adverse impact on the credibility of the complainant’s evidence.

[152] The second inconsistency in relation to the first incident relates to whether the complainant was wearing underwear at the time of the incident. In direct examination the complainant said that she was wearing underwear, that the accused removed them and, when asked what happened to them, said that they were thrown on the floor. In cross-examination the complainant testified she did not think she was wearing underwear. When asked further about this, she said she was unsure whether she was wearing underwear but “assumed” that they were removed and went onto the floor.

[153] This was not a situation where cross-examining counsel demonstrated an inconsistency, for example, by using a prior statement. When defence counsel repeated the complainant’s evidence that she was wearing underwear she interjected to volunteer that she was not sure about that. She said that when she was asked about it in direct examination, she was having a hard time remembering and thought then that she was wearing underwear. When thinking about it prior to cross-examination, she became unsure. In re-examination she said that in December 2017 she did not always wear underwear. The accused testified that she never wore underwear, although he said he did not know about whether she did when she had her period.

[154] Given how this unfolded, I find this is not an inconsistency which impacts the complainant’s credibility. But I agree that it impacts her reliability as a witness. It demonstrates that the complainant may testify to facts based on assumptions where there is some uncertainty on her part. However, defence counsel then asked the complainant if there were any other parts of her testimony where her recollection had changed. She said that when she testified in direct examination about incident three, she did not recall asking the accused whether he ejaculated. She said she had thought more about that and now recalled that she did ask that question of the accused.

[155] These responses show that the complainant had some problems with her memory. They also show that she was quite willing to acknowledge them. I noticed that going forward from that point she sometimes identified areas she was being asked about as ones where she was having problems remembering.

[156] The next inconsistency relates to whether the complainant fell back onto the bed or was pushed back onto the bed before the accused climbed on top of her during the first incident. In direct examination Crown counsel asked: “You said ‘I guess he pushed me back onto the bed’ is that something you remember or don’t remember?” The complainant said she did remember being pushed. In cross-examination she was read a passage from her preliminary inquiry testimony where she said, “I kind of – I fell back on his bed.” When it was suggested that she fell back rather than being pushed back she said she could not remember but then she agreed, explaining that “it is really hard to remember these details”.

[157] There is a further inconsistency I will deal with together with the one just described. The complainant said she was trying to push the accused off during the first incident. It later became an agreed fact that she did not mention that in her preliminary inquiry testimony.

[158] The accused submits these inconsistencies demonstrate variability in the complainant’s testimony about core details which undermines her credibility.

[159] When I look at the complainant’s evidence in relation to the first incident, I do not think this variability negatively impacts her credibility. Rather, understood in the context of the rest of her evidence, these inconsistencies reflect understandable limitations of memory for events which were four years old.

[160] I observe that when the issue of how she got into a reclining position on the bed was raised in examination-in-chief the complainant flagged that she was having trouble remembering. After asking for a moment to reflect, she said, “I think he pushed me onto his bed, I can’t really quite remember”. She went on to say that the accused then got on top of her and she told him to stop. At another point when describing this she equally qualified her evidence by saying, “I don’t remember this part but he pushed me onto his bed and then climbed on top of me.”

[161] Her trial testimony in direct examination about pushing the accused off her also came with some qualification. She first said there were things which she could not remember but she recalled telling him to stop. She was then asked if she was “doing anything” with her body. She responded, “pretty much like just push him off.”

[162] Given the complainant’s own qualification of the accuracy of her memory I do not see these minor inconsistencies as having any significant impact on the complainant’s credibility. They do impact the reliability of her evidence as they demonstrate difficulty and variability of memory, which I find not to be surprising given the passage of time. I also observe that the complainant has consistently maintained that she was still “half asleep” when the accused carried her into his bedroom.

[163] I turn to the next inconsistency alleged in relation to the first incident. At trial the complainant said that, after the accused stopped trying to penetrate her, they were laying on the bed. She said the accused told her she had a nice voice and said something about impotence. However, at the preliminary inquiry the only discussion she remembered was about her voice.

[164] To understand the significance of this omission something more must be said about the evidence. When the complainant mentioned the accused’s reference to impotence in examination-in-chief, she said the accused did not go into it. When she was cross-examined about this on March 1, 2022 she distinguished between impotence and erectile difficulties. She was very clear that the accused never told her he could not get an erection. She said “impotence” was only “mentioned” the first time they met. The accused did not go into it. She was very clear that the accused never told her that he sometimes had difficulties getting an erection.

[165] The complainant clearly drew a distinction between impotence and erectile dysfunction in her mind. I observe that impotence could be taken to mean infertility. She was never asked if she experienced erectile dysfunction on the part of the accused. When I consider the evidence in its totality, I do not see her failure at the preliminary inquiry to recall a brief mention of impotence, which was not connected to the allegations, as significant. I observe that there is no evidence that the accused’s ability to fully penetrate the complainant during the first incident was linked to either impotence or erectile dysfunction on his part, rather than to the complainant’s lack of desire and resistance.

[166] The final inconsistency in relation to the first incident relates to the complainant’s trial testimony that she declined the accused’s offer of leftover Chinese food. At the preliminary inquiry she said she did eat some. This is something quite peripheral to and prior to unanticipated misconduct which took place four years ago. I simply do not see this as a significant inconsistency.

[167] I turn to the second incident, alleged to have occurred on July 8, 2018. Counsel for the accused points to two inconsistencies, both related to the complainant agreeing to give the accused a blowjob to avoid unwanted sexual intercourse while on her period. The first inconsistency relates to variability in the complainant’s testimony about where the discussions on that subject took place. The second relates to whether the accused’s penis entered the complainant’s mouth during her attempts at performing oral sex.

[168] In direct examination the complainant said they had a conversation about a blowjob in the bedroom. When she was cross-examined the following day, she at first said the conversation was before entering the bedroom. When questioned further she said it came up twice, once prior to entering the bedroom and once in the bedroom.

[169] Concerning whether the accused’s penis entered her mouth, what the complainant said about performing oral sex is important. She described using her teeth. In examination-in-chief, when asked to explain what she meant, she said she did not bite the accused but used her teeth lightly on his penis. She was asked for further details in cross-examination. She explained that the accused was on her bed on his knees and that she was somehow laying on her bed and using her teeth on the side of the accused’s penis. It was in the context of trying to describe this use of her teeth on the penis that she said the accused’s penis did not go inside her mouth.

[170] At that point the complainant was cross-examined on her preliminary inquiry testimony where she said that in the process the accused stuck his penis inside her mouth.

[171] I note the following. The complainant has always said there was some discussion of performing a blowjob on the accused in lieu of having intercourse with him and that she participated to some extent in doing so. The possibility of a blowjob in lieu of intercourse came up in the texts exchanged before the accused’s arrival. Whether after his arrival there were one or more discussions of oral sex, and whether they were in the bedroom or outside the bedroom, seems to me to have little to do with the truthfulness of the complainant’s core allegations of non-consensual sexual intercourse. As I have said, the complainant has acknowledged poor recall for some details, which is not surprising given the time that has elapsed.

[172] In terms of whether the accused’s penis entered her mouth, she said throughout her evidence that the accused was trying to put his penis into her mouth. That suggests she was not fully co-operating. One interpretation of what she described is using her lips and the fronts of her teeth on the accused’s penis to prevent it from going fully into her mouth. Questioning on this point was not sufficiently detailed to know for sure. She said the accused became angry and aggressive when she used her teeth. She described running her teeth up and down his penis and it is difficult to see how this would not constitute his penis being in her mouth, at least to some extent.

[173] Overall, my understanding of her evidence is that even if she had agreed to perform oral sex, it was unwillingly, to avoid the accused from having intercourse with her. Her attempts at fellatio were not wholehearted. When I review the parts of the evidence which give rise to the inconsistency in the context of the surrounding related evidence, I do not see them as significantly undermining the complainant’s credibility. The inconsistency about whether the accused’s penis went into her mouth, starkly stated, appears to be more significant than I judge it to be when considered in the context of the rest of the evidence and having regard to how the complainant’s testimony was given.

[174] I turn to the third incident. Counsel for the accused points to three areas of alleged inconsistency in the complainant’s testimony.

[175] First, counsel points out that it was not until cross-examination that the complainant recalled asking the accused if he had ejaculated. This is something which the complainant brought up on her own when she was asked a general question in cross-examination about changes in her recall between direct and cross-examination.

[176] Crown counsel had tried unsuccessfully to refresh the complainant’s memory on this point by referring her to her police statement during direct examination. Consequently, between direct and cross-examination the complainant had time to reflect on what she had been referred to in the unsuccessful attempt to refresh her memory. Again, I assess that this relates to the complainant’s memory and is a matter of her reliability rather than her credibility.

[177] Counsel next refers to the complainant describing the force she said the accused used to push her into the bedroom as “not light” when she was first cross-examined, but as “light” when she was pressed further. This is a very minor difference of little to no significance. The complainant explained in direct examination how the accused used his body to push or direct her into the bedroom. The accused is a much larger and heavier individual than the complainant.

[178] Finally, counsel for the accused raises an alleged inconsistency about what the complainant said to the accused during the intercourse. During cross-examination the complainant agreed that she told the accused to “hurry up” and thought that she recalled saying something else which she could not recall. Immediately after her response about not recalling what else she said during intercourse, counsel put to her that she had no memory of telling the accused to stop. The complainant then testified that she did tell him to stop. When further challenged, she testified that she did not think she told him to stop, finally resolving that it was tough for her to remember.

[179] Far from undermining the complainant’s credibility, I find this part of her evidence suggests that she is credible and was trying to be careful and accurate during her testimony. Throughout this part of her evidence she acknowledged, without prompting, that she was having trouble remembering.

[180] In connection with whether she told the accused to stop, she said “that’s really tough for me to remember right now”. While she was unsure whether she told the accused to stop during the intercourse she testified that she had told the accused she was not in the mood and that she did not want to do anything. This was before the sexual intercourse took place.

[181] No inconsistencies are alleged in relation to the fourth incident.

Onus and Burden of Proof

[182] The onus is upon the Crown to prove each of the essential elements of the offence charged beyond a reasonable doubt. In a case such as this one, where there are competing versions of the key events, I have instructed myself in accordance with R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 757, as explained and expanded upon in cases such as R. v. D.(B.), 2011 ONCA 51, at para. 114; R. v. Smits, 2012 ONCA 524, at para. 37 and R. v. Brown, 2018 ONCA 481, at paras. 67-69. It is not a matter of simply choosing between the competing versions. The issue is whether, having considered all the evidence together, I am satisfied of the guilt of the accused beyond a reasonable doubt. In making that determination I recognize that evidence favouring the defence, even if not accepted, may raise a reasonable doubt. Equally, I understand that even if the accused’s evidence or other evidence favouring the accused’s position is rejected, there can be no conviction unless I am satisfied based on the evidence which I do accept that the guilt of the accused has been established beyond a reasonable doubt.

[183] It is only after I have considered all the evidence together and made findings of fact that I am to ask myself whether I am satisfied of the guilt of the accused beyond a reasonable doubt. In making my findings of fact I may accept some, none or all of the evidence of any witness.

[184] The correct approach to the onus and burden of proof as set out in the authorities cited above does not require that I analyze the evidence or make my findings of fact or credibility in any order. What is required is that, after considering all the evidence together, the requirement for proof beyond a reasonable doubt remains the central consideration: R. v. Vuradin, 2013 SCC 38, at para. 21.

Additional Findings

[185] The evidence of the complainant and the accused cannot be reconciled. I have considered all the surrounding circumstances to see whether the evidence reveals something which might support or undermine significant aspects of the evidence of the protagonists. In this case emphasis has been placed on the alibi evidence and the texts in Exhibit 1, both of which have their primary impact in relation to the second incident.

[186] For reasons earlier stated, I find that the alibi is not supported or confirmed by evidence independent of the accused. Whether the alibi raises a reasonable doubt in relation to the second incident is, therefore, dependent on my assessment of the accused’s credibility.

[187] In terms of the text messages, when it comes to assessing their weight there is no evidence which is completely independent of the complainant to establish that they are genuine, although the surrounding circumstances also play an important role.

[188] I do not accept significant parts of the accused’s evidence. The nature of the inconsistencies I previously noted undermine my confidence in his testimony overall and lead me to reject his evidence in specific areas. Those inconsistencies are not just about details. The accused has been inconsistent about whether he was sexually interested in the complainant in relation to the third and fourth incidents on July 20 and about whether the complainant took medication which turned her into a zombie, making sexual activity unlikely or impossible. Statements made by the accused to his doctor and evidence given by Cheryl Morris, which I accept, show that the accused had the capacity to gain an erection and engage in sexual activity. I find the accused engaged in significant exaggeration during his testimony with respect to his erectile dysfunction and gave untruthful testimony that on the evening of July 20 the complainant took medication, which she denied taking. I accept the complainant’s evidence that she was not taking such medication at that time.

[189] The accused’s deception in relation to the foregoing leaves me unable to accept much of his evidence in relation to the motive to fabricate which he alleges on the part of the complainant. I conclude that he exaggerated the extent to which the complainant’s depression and related vulnerabilities were the reason he continued to see her. While the accused knew that the complainant suffered from depression in relation to her mother’s illness and death, I do not accept his evidence that the complainant was threatening suicide if he broke things off.

[190] Regarding motive to fabricate, I note that the complainant freely admitted that she wanted a relationship with the accused because she wanted a support person. In re-examination she adopted a portion of her preliminary inquiry testimony where she said she kept seeing the accused after the second incident because she did not want to be alone and was afraid that she might harm herself. However, she denied that she told the accused that she would harm herself if he broke up with her. She further testified that by the end of the relationship she was starting to realize that it was a bad relationship. I accept her evidence on these points.

[191] My rejection of the accused’s evidence that the complainant was threatening suicide if he broke things off impacts how I view the texts and the telephone call that occurred on the morning of July 22, 2018 after the accused learned from his tenant that the police had attended at the Wessenger Drive address in Barrie. I think it is much more likely that the accused contacted the complainant at 6:56 a.m. to see if she had complained to the police about him than to see if she had harmed herself.

[192] The first text is “you ok”. This is ambiguous in the circumstances and could signify either purpose in initiating the communication. However, the next texts sent by the accused three minutes later are “2 police officers were here” and “????”. In my view, this content tends to suggest the concern was the former rather than the latter.

[193] Both the accused and the complainant testified that there was then a phone call. The complainant said she did not recall the accused saying he was worried about her. I accept her evidence that when she asked him why he would ask her if she was okay, he mentioned that the police had been to his house and then went silent. At no time during the telephone discussion did she say the accused was concerned that she may have harmed herself or that he asked her further questions about her mental state or how she was getting along.

[194] I also find that the complainant’s evidence about the nature of the mixed feelings she had at the end of the relationship and her evidence of long-term regret for not reporting an unrelated prior matter to the police support a finding that she did not go to the police out of spite. I am not saying there is a proven absence of motive but rather that, on the whole of the evidence, I reject the contention that the complainant went to the police to get back at the accused. I further observe that the complainant did not present as an angry witness who had an axe to grind.

[195] Turning to the complainant’s evidence more generally, I conclude she is a credible witness who is having difficulty remembering some details surrounding the traumatic events she described after a long period of time has passed. However, I find much of her evidence to be clear and convincing and some parts of her evidence to be particularly nuanced and compelling in ways which support her credibility.

[196] I found the complainant’s testimony about what occurred during the second incident to be particularly compelling. Bearing in mind the accused’s testimony that the incident never happened, I find there are several details to the complainant’s account that are poignant and not likely to be made up. The complainant’s explanation of how when she was crying the accused got her to calm down and relax before he penetrated her, fits into that category. Even more compelling is the complainant’s evidence that the accused told her not to move after he ejaculated, but that she did move and that as a result the accused had to wipe semen up off the floor. These are nuanced details which you would not expect to find in a fabricated account.

[197] Similarly, the complainant’s description of how she felt as she stood looking at the bathroom floor after the incident and her testimony about her verbal exchange with the accused when he stuck his head out of the shower and said, “It was not that bad, was it?”, ring true and seem unlikely to have been fabricated. The way this evidence was given was also compelling. Nothing in the way the complainant gave her evidence over the course of two days suggested to me that she was capable of such nuanced fabrication.

[198] Then there are the texts. I conclude that the circumstances surrounding how the texts surfaced tends to undermine the accused’s testimony that he did not send them. If he did not send them then, on any realistic view of the record, they had to be fabricated by the complainant in some way. Such fabrication would almost certainly be for the purpose of framing the accused. Yet the texts only came to the attention of the police circuitously, as described in my admissibility ruling. While this circumstantial evidence is not completely independent of the complainant, one would not expect such texts to be held back if they were fabricated. While only one part of the evidence, I am of the view that the texts can and should be given significant weight. They undermine the accused’s credibility and support the complainant’s evidence about what occurred on July 8, 2018.

[199] This is not a situation where I have assumed the texts to be those of the accused and then engaged in bootstrapping or circular reasoning to support my decision. My decision to give the texts weight flows from my determination that all the surrounding circumstances, including the complainant’s lack of reliance on the texts when she went to the police, favours a conclusion that they were sent by the accused. The other circumstances include my acceptance of the complainant’s evidence that the accused came to her home that morning, evidence that they communicated by text on other occasions and that it would be expected that there would be some communication in advance of their meeting that day.

[200] There are other parts of the complainant’s testimony which I find to be markers of credibility. For example, the complainant did not testify to the address where she was taken in Barrie where the first incident occurred. However, she described being in a basement apartment with tenants upstairs who had been told not to answer the door. I accept her evidence that she was only there once. With respect to the third incident, the complainant said that after telling the accused she did not want to engage in sexual intercourse, she told him to “hurry up” during the act and explained that the accused said he was “overheating” and could not ejaculate. Then during the fourth incident in the van later that day the accused again told her that he was overheating and could not ejaculate. The accused acknowledges in his evidence that he would overheat and have difficulty ejaculating. In a case where the accused maintains that none of the incidents ever occurred, I find these points to be compelling parts of the complainant’s testimony.

[201] When I sift all the evidence together, I find that I do not accept the accused’s evidence. Moreover, some parts of it, I am satisfied, are untrue or based on exaggeration to the point of calculated deception. When I evaluate the accused’s testimony in the context of the other evidence it does not raise a reasonable doubt.

[202] I accept the core aspects of the complainant’s testimony. I find her to be a credible witness. The memory problems she has exhibited are understandable due to the passage of time and do not detract from the reliability of the core features of her evidence.

Conclusion

[203] I am satisfied beyond a reasonable doubt based on the complainant’s evidence, which I substantially accept, that each of the four incidents she described occurred as she said they did. I am satisfied beyond a reasonable doubt that on each of those occasions the accused engaged in sexual intercourse with the complainant without her consent, that is without voluntary agreement on her part, and in circumstances where he knew that she was not consenting.

[204] I find the accused guilty of sexual assault.

F. Dawson J.

Released: June 3, 2022

COURT FILE NO.: CRIM NJ(P) 1677/19

DATE: 2022 06 03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

-and-

BERNARD LACOMBE

REASONS FOR JUDGMENT

Dawson J.

Released: June 3, 2022