COURT FILE NO.: 8425/21

DATE: 2022-06-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

T. Wilson, Counsel for the Crown

• and -

R.B.

K. Scullion, Counsel for the Defendant

Defendant

HEARD: May 9, 10, 11, 12, 13, 2022

GAREAU J.

REASONS FOR JUDGMENT

[1] The accused, R.B., was arraigned on a 24-count indictment dated August 4, 2021. He entered pleas of not guilty to each of the offences set out in the indictment. After the Crown’s case was completed, Crown counsel requested an amendment to the indictment which amended the timeframe for the alleged offences and resulted in some of the charges being stayed. This was not opposed by defence counsel. In the end, this amendment reduced the number of charges from 24 to 15.

[2] The counts set out in the indictment as amended read as follows:

1. That R.B. between the 1^st day of July in the year 2018 and the 8^th day of January in the year 2021 at the City of Elliot Lake in the said Region, did without lawful authority confine E.A. contrary to section 279(2) of the Criminal Code;

2. That R.B. between the 1^st day of July in the year 2018 and the 8^th day of January in the year 2021 at the City of Elliot Lake in the said Region, did in committing an assault upon E.A. carry a weapon to wit, a knife contrary to section 267(a) of the Criminal Code;

3. That R.B. between the 1^st day of July in the year 2018 and the 8^th day of January 2021 at the City of Elliot Lake, did in committing an assault upon E.A. use a weapon, to wit, a bag, contrary to section 267(a) of the Criminal Code;

4. That R.B. between the 1^st day of August in the year 2018 and the 8^th day of January in the year 2021 at the City of Elliot Lake in the said Region, did commit a sexual assault on E.A. contrary to section 271 of the Criminal Code;

5. That R.B. between the 1^st day of July in the year 2018 and the 8^th day of January in the year 2021 at the City of Elliot Lake in the said Region, did in committing an assault upon E.A. carry a weapon, to wit, a broomstick contrary to section 267(a) of the Criminal Code;

6. That R.B. between the 1^st day of July in the year 2018 and the 8^th day of January in the year 2021 at the City of Elliot Lake in the said Region, did commit an assault on E.A. contrary to section 266 of the Criminal Code;

7. That R.B. between the 1^st day of July 2018 and the 8^th day of January in the year 2021 at the City of Elliot Lake in the said Region, did by word of mouth knowingly utter a threat to E.A. to cause death to E.A. contrary to section 264.1(1)(a) of the Criminal Code;

8. That R.B. between the 1^st day of July in the year 2018 and the 8^th day of January in the year 2021 at the City of Elliot Lake in the said Region, did in committing a sexual assault on E.A. maim the said E.A. thereby committing an aggravated sexual assault contrary to section 273(2)(b) of the Criminal Code;

9. That R.B. between the 30th day of March in the year 2018 and the 3-th day of June in the year 2018 at the City of Niagara Falls in the said Region, did in committing an assault upon E.A. use a weapon to wit, metal pole contrary to section 267(a) of the Criminal Code;

10. That R.B. between the 30^th day of March in the year 2018 and the 30^th day of September in the year 2018 at the City of Niagara Falls in the said Region, did commit a sexual assault on E.A. contrary to section 271 of the Criminal Code;

11. That R.B. between the 30^th day of March in the year 2018 and the 30^th day of September in the year 2018 at the City of Niagara Falls in the said Region, did without lawful authority confine E.A. contrary to section 279(2) of the Criminal Code;

12. That R.B. between the 1^st day of June in the year 2018 and the 30^th day of June in the year 2018 at the City of Niagara Falls in the said Region, did by word of mouth knowingly utter a threat to E.A. to cause death to E.A. contrary to section 264.1(1)(a) of the Criminal Code;

13. That R.B. between the 1^st day of June in the year 2018 and the 30^th day of June in the year 2018 at the City of Niagara Falls in the said Region, did in committing an assault upon E.A. use a weapon to wit, a BB gun contrary to section 267(a) of the Criminal Code;

14. That R.B. between the 1^st day of June in the year 2020 and the 1^st day of December in the year 2020 at the City of Welland in the said Region, did in committing an assault upon E.A. use a weapon to wit, knife contrary to section 267(a) of the Criminal Code;

15. That R.B. between the 1^st day of June in the year 2020 and the 1^st day of December in the year 2020 at the City of Welland in the said Region, did by word of mouth knowingly utter a threat to E.A. to cause death to E.A. contrary to section 264.1(1)(a) of the Criminal Code;

[3] The Crown called a total of five witnesses, including the complainant, E.A. The defence called the accused, R.B., to give evidence at the trial.

BACKGROUND

[4] The accused and the complainant were childhood sweethearts who met in Grade 7 when the accused relocated from Southern Ontario to Elliot Lake, Ontario. E.A. became pregnant at the age of 16 with the child of R.B. and their son was born on March 9, 2016. During the course of their relationship, they had another child, a daughter, who was born on March 30, 2018.

[5] The relationship between R.B. and E.A. can best be described as tumultuous, with periods of separation and frequent moves. They resided in Niagara Falls, Welland, and Elliot Lake, Ontario, and the charges in the indictment include incidents which are alleged to have occurred in those locations. E.A. and R.B. ultimately discontinued their relationship on January 8, 2021 when E.A. made a report to the Elliot Lake police and R.B. was arrested. R.B. has been in custody since January 8, 2021.

[6] R.B. acknowledges that domestic violence coloured his relationship with E.A. but suggests that it was on both sides, that E.A. gave as good as she got. E.A. suggests that she was abused by R.B., that she was physically and sexually assaulted by him and that their relationship was one where he controlled and dominated her. The allegations made by E.A., if proven, portray a pattern of controlling and abusive behaviour on the part of R.B. and actions by him against E.A., such as the branding of her buttocks, that are tantamount to torture.

THE EVIDENCE

[7] The court received evidence from two police officers, namely, Cst. Vik Lazarevic and Constable Kaitlyn Good. This evidence indicates that E.A. initially went to the Elliot Lake Police Detachment on January 8, 2021, and that her disclosure of information pertaining to R.B. was made incrementally by her. Cst. Lazarevic indicated in his evidence that the initial disclosure was made by E.A. on January 8, 2021, and that as a result, R.B. was arrested on January 8, 202, at 17:48 hours. The officer also testified that on January 27, 2021, E.A. called in more allegations about property damage and that after the arrest of R.B., sexual assaults and aggravated assaults were disclosed to the police by E.A.

[8] At the initial meeting with police on January 8, 2021, E.A. indicated that she would be more comfortable talking to a female officer, which began the involvement of Cst. Kaitlyn Good. Cst. Good testified that she interviewed E.A. on January 8, 2021, and that on January 9, 2021, she received a telephone call from E.A. who indicated that she had other things that she wanted to talk about. That resulted in a further statement being taken by from E.A. in which she disclosed domestic occurrences and sexual assaults that occurred in Elliot Lake and the Niagara Region. Cst. Good took six photographs of various injuries to the body of E.A., which were entered as Exhibit 1 at the trial. Cst. Good testified that she met with E.A. again on February 16, 2021, when more photographs were taken, and again on February 25, 2021, when a “clarification statement” was taken with E.A. Cst. Good indicated to the court that there was a “total switch” in E.A. when she began talking about R.B. Cst. Good indicated in her evidence that she observed E.A. to be “just beaten down” in her interactions with her.

[9] Dawn Lamswood is a child protection worker employed by the Children’s Aid Society of Algoma. From the fall of 2018 to the present time, she has been the assigned worker to provide assistance to E.A. and R.B. and their children. Ms. Lamswood described her role as a “supportive” one and indicated that there was no risk to the children in the care of their mother, E.A. The Children’s Aid Society became involved with the family due to the “extreme domestic violence in the history of the family”. Ms. Lamswood acknowledges that this information as to domestic violence came from others and that she did not personally witness any violence between E.A. and R.B. What Ms. Lamswood did indicate was that she did witness “power and control dynamics” in the interaction between R.B. and E.A. As an example of this, Ms. Lamswood pointed to an occasion when E.A. was asked to sign a consent for the agency to obtain information from public health. It was the evidence of Ms. Lamswood that R.B. gave E.A. a “strong intimidating stare” which ended up in E.A. refusing to sign the consent. Ms. Lamswood testified that E.A. presented as “being nervous and scared” when she was in the presence of R.B.

[10] Dawn Lamswood testified that E.A. reported to her being slashed with a knife and being beaten over the back with an iron bar, all at the hands of R.B. Ms. Lamswood testified that she saw the injuries to E.A., which were purportedly inflicted by a knife. It was Dawn Lamswood who urged E.A. to report the incidents to the police and in fact on January 8, 2021, Ms. Lamswood attended the Elliot Lake Police Detachment with E.A.

[11] Ms. Lamswood denied the suggestion put to her in cross-examination that she disliked R.B. and proceeded on the basis that E.A. was telling the truth and that R.B. was a violent person. Although Ms. Lamswood candidly acknowledged that she did discuss with E.A. the details of what she told the police, she emphatically denied that she influenced E.A. in any way about the details that E.A. provided to the police. As Dawn Lamswood put it in her evidence, “at no point did I ever tell E.A. what to say”.

[12] Apart from the evidence of E.A. and R.B., the most helpful evidence provided to the court was that of M.A., the mother of E.A. M.A. testified about a time when she visited E.A. and R.B. when they were residing on Dyson Avenue in Niagara Falls, Ontario. This would have been in June 2018, according to the evidence of M.A. Her grandson was two years of age, and her granddaughter was only two to three months of age. It was the evidence of M.A. that on this trip she and E.A. went to the Walmart store to get a crib for her granddaughter. M.A. testified that she and E.A. were gone for longer than expected and when they arrived home, R.B. pulled E.A. into another room and M.A. could hear a “snapping noise” from the room they were in. It was the evidence of M.A. that when E.A. came out of the room she could see red marks on her neck that looked like the muzzle of a gun. M.A. described it as a “really red mark with a circle on top”. It was described by M.A. as being on the left side of her neck, three inches below her left ear. M.A. testified that later E.A. told her that it was from a BB gun that R.B. had placed to her neck. M.A. admitted in cross-examination that she did not see the incident and so could not say that the red marks on E.A.’s neck was from a BB gun and that E.A. did not disclose anything to her when she first asked about it.

[13] M.A. testified that the incident with red marks on E.A.’s neck scared her and that she was generally scared based on what she was being told by E.A. E.A. and her children returned to Elliot Lake with M.A. at the end of M.A.’s visit. As M.A. put it in her evidence, “I was scared for her so I wanted her to come back to Elliot Lake.”

[14] M.A. testified that when E.A. and the children went with her to Elliot Lake, R.B. stayed in Niagara Falls and at some point E.A. returned to Niagara Falls. M.A. was not supportive of her going back to Niagara Falls because she was “scared for E.A.”. Later that year, in August or September of 2018, E.A. came back to Elliot Lake for good. R.B.’s mother drove her and the children to Parry Sound and M.A. drove to Parry Sound to pick them up and take them back to Elliot Lake. According to M.A., this was not the first time that E.A. attempted to leave R.B., and that one time M.A. arranged a plane ticket for E.A. but E.A. did not get on the plane. In her evidence, M.A. recounted another occasion when E.A. was pulled out of a vehicle by the hair by R.B. M.A. recalled this incident being in 2020, after her trip to Niagara Falls.

[15] It is fair to say that the tenor of the evidence of M.A. was that her daughter E.A. was in an unhealthy relationship with R.B. and M.A. wanted her out of the relationship and back in Elliot Lake, Ontario. As she put it in her evidence, “All I wanted is for her to get away from him”.

[16] The complainant, E.A., testified about numerous incidents involving R.B. which occurred in various locations. E.A. became pregnant at the age of 16 with R.B.’s child. After her son was born on March 9, 2016, E.A. moved to Southern Ontario to live with R.B. At first, they lived in Thorhold, Ontario, and then resided at R.B.’s mother’s home in Welland for a few months after which they moved to Niagara Falls, Ontario. While in Niagara Falls, R.B. and E.A. resided on Dyson Avenue. It was the evidence of E.A. that things got worse in her relationship with R.B. when they lived on Dyson Avenue. E.A. testified that she was at times confined to a closet by R.B. E.A. testified that “He would take the doorknobs off of the closet doors so he could lock us in there if we didn’t listen to him and the only way to open it was some sort of screwdriver and he would have to open it from his end to let us out”.

[17] It was the evidence of E.A. that both she and their son would be locked in the closet by R.B. This was done to them when R.B. got angry about something, such as his clothes not being washed properly or being left wet. In her evidence, E.A. provided details about the closet where this confinement occurred as follows, “It was a closet right when you walked into the apartment, it was like a pantry closet and he would use that one. There was a closet in our bedroom that just closed so he would put stuff in front of it so we couldn’t get out”.

[18] It was the evidence of E.A. that when she went to deliver her daughter, she was not allowed a male physician for the delivery. This was forbidden by R.B. As E.A. testified, “The only doctor that was there was a male doctor and I wasn’t allowed a male doctor to look at me or touch me. Some kind of nurse had to help me deliver.” E.A. went on in her evidence to state that “He said no male should touch me there, and it would be bad if he did”.

[19] E.A. described in her evidence an occasion where her mother, M.A., visited her and her children when E.A. was residing with R.B. on Dyson Avenue. E.A. testified about an incident that occurred while her mother was visiting as follows,

And there was a time when mom came down to visit us, so he would keep me in the room, in the bedroom, and I was barely allowed out to see her, and if I did, I’d go back into the room and he would have the BB gun or he would have a knife which he would press up against my neck, and he would scare me and say not to think about leaving.

[20] It was the evidence of E.A. that R.B. threatened to kill her if she left him.

[21] E.A. gave evidence that she was beaten by a metal pole by R.B. when they resided on Dyson Avenue in Niagara Falls, Ontario. E.A. described R.B. talking to his brother on the phone and being angry when he entered the living room. E.A. described being hit hard on the back with a metal pole by R.B. and provided details as follows,

I stood up when I seen him come into the room. And I tried to leave the room. And it was just by the front of the room where you would go into it, but he started to hit me with it. He hit me the first two times, I fell to the ground because it hurt and he kept doing it a few more times until I couldn’t even move.

It was E.A.’s evidence that although she was hurt, R.B. would not allow her to go to the hospital.

[22] In her evidence, E.A. described an incident of unwanted and non-consensual sex which occurred at the Dyson Avenue address. E.A. described that R.B. was in his office watching porn and told her that he wanted to have sex. E.A. testified that her response was that she didn’t want to and R.B. replied that “it was going to happen either way”. It was the evidence of E.A. that R.B. grabbed her from the back of her hair and put her onto the couch in the office, which was like a futon couch. E.A. testified that R.B. pulled down her pants and that “he put it inside me and had sex”. It was E.A.’s evidence that “I told him no, I didn’t want to have sex”. E.A. testified that the children were nearby when this happened, that her son was in his room, which was in the living room, and that her daughter was very young and was in her baby swing, which was in the living room where her son was. E.A. testified that R.B. did not use a condom and after he ejaculated, he told E.A. to go clean herself up.

[23] E.A. described life with R.B. as being controlled and dominated. As she put it in her evidence, “You don’t say no to him. It’s his way, no matter what”.

[24] E.A. left with her mother and the children while R.B. was at work. She left Niagara Falls and went to Elliot Lake. This would have been in June 2018. R.B. followed her back to Elliot Lake and moved back to Elliot Lake. E.A. and R.B. reconciled. As to why she reconciled with R.B., E.A. said “I was scared to leave and he was so good at bringing me back in. He would say he was sorry for everything and that he loved me and he would change and it would stop, and we could be a family.” E.A. wanted to believe him.

[25] After E.A. and R.B. reconciled they lived at Tokyo Crescent in Elliot Lake, Ontario. E.A. described the reconciliation as being good at first but then “He got worse than before”. E.A. described an incident which occurred at the Tokyo Crescent residence when her sister was in town and she went out to visit with her. E.A. described coming home and R.B. telling her that he had something to show her. E.A. testified that she was taken to the garage and that “He had a knife and he told me to take my clothes off”. E.A. said that she complied and then was told to sit on his weight bench and then to lay down, which she did. E.A. testified that she laid down, R.B. tied her to the work bench so she couldn’t move. When E.A. asked R.B. why he was doing this, “He said I was gone for so long and he accused me of sleeping with other people”. E.A. testified that while she was tied to the work bench R.B. put a bag over her head and had a bucket of water. E.A. testified that R.B. took the bag off and kept asking her why I was out so late and what I was doing. E.A. indicated in her evidence, “and he didn’t believe me, he didn’t believe what I said”, so R.B. put the bag over her head again and poured water on her face and left her there for a while with the lights off. E.A. testified that “I don’t know how long I was there for”, but eventually R.B. came back into the garage, removed the bag, untied her and told her to get dressed and go back to the kids.

[26] E.A. testified that she was also confined in the Tokyo residence. She was being put into closets by R.B. and had bear mace sprayed in her face to confine her to the closet. E.A. testified that this closet at the Tokyo residence had sliding doors which could not be locked from the outside, but she remained in the closet at R.B.’s direction because “we knew that if we just left the closet, it would be worse”.

[27] It was the evidence of E.A. that R.B. had court matters in the Welland area in the summer of 2020 so they lived for a short time at the home of R.B.’s mother on Hickory Court in Welland, Ontario. As E.A. indicated in her evidence, “I was hoping that the stuff with the court would go bad so he would have to go to jail but it didn’t go as planned.” E.A. testified that while they were in Welland, R.B. was cheating on her with an ex-girlfriend and that she had enough and told R.B. that she was going to take the children and leave him. At the time, R.B. was drinking a 40-ouncer of Raspberry vodka. E.A. indicated that at that point she just wanted to go home and that she started packing her belongings. As E.A. testified, “I told him I wanted to go home and he had a knife that was on the table by the bed, the drawer, and he pulled it out and said that I wasn’t going anywhere. And I said, yes we are because I don’t want to stay and he slashed my arm open and my leg and after that happened he started to freak out because my arm was soaked in blood and it was slashed open and knew that I had to do something. I had to calm him down because I was scared he was going to try to kill me.”

[28] E.A. testified that after she was slashed by R.B. in the arm and the leg, that he brought her into the bathroom and she wrapped herself with tape and toilet paper because she couldn’t go to the hospital. Entered as Exhibit 1 is a series of photographs, including photographs 3 to 6 depicting marks to the arm and leg of E.A.

[29] It was the evidence of E.A. that R.B. told her that he would kill her if she told anybody about the knife incident. E.A. never went to the hospital or told anyone about it until she made her disclosure to the Elliot Lake police in January 2021. To the question why E.A. did not tell anyone, her response was, “Because he would kill me. I honestly believed that he would.”

[30] In the fall of 2002, just prior to going to the police in January 2021, E.A. resided on Mississauga Avenue in Elliot Lake, Ontario. R.B. was there as well but it was the evidence of E.A. that she did not want him there but he simply refused to leave. While at this address, E.A. describes being beaten by a broom by R.B. It was the evidence of E.A. that R.B. was upset with her because there was still soap in his cup; that it was not properly cleaned, “so he started beating me with the broom”. E.A. testified that when R.B. was finished, he directed her to go wash the cup again.

[31] While they were on Mississauga Avenue, E.A. testified that there was an incident of non-consensual sexual intercourse. E.A. testified that R.B. wanted to have sex and that she didn’t want to. As she put it, “I told him no and he wasn’t taking no for an answer”. E.A. testified that she tried to run around the living room to get away from him and that he grabbed her by the hair and put her on the end of the couch and had vaginal intercourse with her.

[32] E.A. described an incident with a hammer. She testified that R.B. chased her with a hammer but she ran and got the kitchen table in between them and that she was not hit with the hammer.

[33] Entered as Exhibit 1, photographs 1 and 2 are pictures of the buttocks of E.A. These photographs clearly show that the initials “R.B.” have been branded into the backside of E.A. The initials are clearly visible and have a red tinge to it. It is the evidence of E.A. that the initials of R.B. are still branded into her buttocks. As to how this occurred, it was the evidence that, “He was watching some sort of video on cattle or something and he came in and he had a knife and he sat at the bed and he said that he was going to brand me. I said no, I didn’t want that. And he was cutting me with metal coat hangers to make his initials and burning awful plastic. He put a lighter to the metal so it was really hot and so it was like red hot and he put it on my butt.” It was the evidence of E.A. that she “could smell the branding”. E.A. testified that this occurred in the fall of 2020. As to why she was being branded, E.A. testified that “He said that I was his property”.

[34] E.A. described an incident where R.B. tied her legs and hands and neck together so she couldn’t move, essentially hog-tying her and then had sexual intercourse with her while she was incapacitated and without her consent and against her will. E.A.’s cellphone was seized, and entered as Exhibit 3 are images contained on that phone of E.A. being hot-tied, as she described, and the branding of the initials “R.B.” on her buttocks.

[35] In her evidence, E.A. denied the suggestion put to her in cross-examination that she hit R.B. with the metal pole. E.A. in her evidence was able to provide particulars of the event, recalling it was nighttime because she was in the living room watching television and her son’s room was in the living room and he was in bed at the time. In cross-examination, E.A. also disagreed with the suggestion that it was she that threatened R.B. with the hammer.

[36] In cross-examination, E.A. denied the suggestion put to her that the mark on her arm and leg were from her cutting herself and not from the knife slash inflicted by R.B. When the question of cutting was put to E.A., the following exchange took place:

Q. So, [E.A.], have you at any time on purpose cut yourself, at any time in your life?

A. Yes, after my son, I had post partem depression which I got diagnosed for at the hospital and that was before we were together.

E.A. emphatically denied any suggestion that she cut herself in recent years or that the wounds to her arm and leg were self-inflicted.

[37] E.A. also denied the suggestion put to her in cross-examination that the act of branding was a consensual one, whereby she would be branded and she would brand R.B. The exact exchange between E.A. and counsel for R.B. concerning the branding is as follows:

Q. All right. And so, we seen a picture of what looks like initials on – that was shown yesterday in court. Do you remember those pictures?

A. I do, yes.

Q. All right. When that happened, [E.A.], isn’t it true that you and [R.B.] mutually decided to put each other’s initials on each other’s bodies?

A. No, that is not true.

Q. Isn’t it true that you helped with getting the coat hanger ready, and that you also put an initial on his body?

A. No, that is not true at all.

Q. And so, you deny going to the washroom after that was done with [R.B.]?

A. No, that is not what happened at all.

Q. And let me ask you this – isn’t it true that while [R.B.] was lying facedown on the mattress, that you used a coat hanger to inflict or to put your first initial on his body.

A. No, that is incorrect. That never happened.

Q. So, you never at any point, [E.A.], use anything to put an initial – brand an initial on [R.B.].

A. No.

Q. So, if he had a mark, that would be from something else.

A. Yes, because I have never done that. He did that to me.

Q. And you never did that to him, that’s your evidence.

A. Yes, I have never done that to him.

[38] E.A. also denied the suggestion put to her in cross-examination that she was fabricating her evidence, to get back at R.B. because he was cheating on her. E.A. denied being angry at that point in time, “No, because at that point I just did not care because he was going to do what he wanted anyway, so there was not much that I could do.” E.A. goes on in her evidence to state that, “I was upset and I was hurt, but I wasn’t angry”.

[39] As to why R.B. would hurt her, E.A. testified that R.B. would tell her that his beating her would make her a better person. As E.A. explained in her evidence, “He would beat me because he cared about me and he was making me a better person so I wouldn’t make as many mistakes and it wouldn’t have to be like that”.

[40] R.B. testified in his own defence. R.B. provided similar evidence to E.A. as to when they met, how their relationship developed, when it ended and the various locations that they resided together. R.B. gives a dramatically opposite version of events and what occurred when they were together. R.B. does admit that there was domestic violence in their relationship. As R.B. put it in his evidence, “I’m admitting that there was domestic violence in the relationship on both sides.” It was the evidence of R.B. that E.A. was not abused by him and in their arguments that she gave as good as she got. R.B. painted himself as the victim at times – it was he who was threatened with a hammer and it was he who was hit by the metal pole.

[41] Specifically, R.B. denies sexually assaulting E.A. in Welland, Elliot Lake or at any address. As he stated, “Absolutely not, no, never, no, not once never.” R.B. went on in his evidence to sate, “I don’t recall E.A. ever saying no to be honest. I mean, sex was always consensual with E.A. E.A. and I had sex frequently. I mean, we’ve known each other for a long time, and we were in a relationship.”

[42] R.B. denies that he assaulted E.A. in the garage at Tokyo Crescent in Elliot Lake. “No, that never happened”, was his evidence. When the following question was put to R.B., “Did you tie [E.A.] down to a bench in the garage?”, R.B. replied, “That definitely never happened, no.”

[43] R.B. denied hitting E.A. with a brook stick. As he put it in his evidence, “I heard her say a lot of things. I heard her say that because of a glass of water, I assaulted her with a broom, which seems pretty extreme over a glass of water, if you ask me.”

[44] As to the metal pole incident at the Dyson Avenue residence in Niagara Falls, Ontario, the following questions were put to R.B. by his counsel and the following response were made by him:

Q. Now, [E.A.] testified if you recall that you came from the other room in the house and that you had a metal pole.

A. I heard that, yes.

Q. Did you have a metal pole at any point?

A. No, that’s incorrect.

Q. Did you ever have anything similar to a metal pole?

A. I knew that this was going to come up, and I mean, I will elaborate on it a little bit. I mean, somewhat of [E.A.’s] versions of events is true, I will give her that. I did walk out of the spare room into the living room after an argument on Dyson Avenue. [E.A.] – like you could literally see from the one room into the living room – I walked – we were arguing about – I was with my ex-girlfriend the other day, I walked from the one bedroom into the other room, [E.A.] was kind of like kiddy-corner, I couldn’t see her, and when I did come around the corner I got – I was in nothing but underwear, Eryn turned the corner and smoked me lower mid-section with a pole. It came from – it was about three and a half feet long, it was the width of a toddler’s bed, it came from a playpen. As I – like I didn’t put it together at the time, but it didn’t take long to put together where the pole came from. I seen that the playpen was dropping, and that [E.A.] had tooken [sic] it from the playpen in the living room. She had tooken out the pole from the playpen to hit me with it.

Q. Were you guys arguing before that?

A. Yeah, we were arguing that day about me being with my ex-girlfriend the day before.

Q. Okay. And so do you remember what was said between the two of you leading up to when you say that [E.A.] grabbed this – hit you with the pole? Were you in the midst of having that argument?

A. We were arguing, I kind of brushed it off, and like walked away. I was avoiding her. I mean, we’ve had this argument a few times before. I mean, I was kind of brushing it off and she was not happy about me brushing it off, she wanted to argue about it more, and...

Q. When you say brushing it off, what do you mean?

A. I was like – I don’t know, shrugging my shoulders, I was like not really talking to her about it. She was asking me a bunch of questions, and I just was kind of mute, and I like walked away from her.

Q. And so when you walked away, what happened?

A. I walked away. We had a room set up on Dyson, it was like – it was a small apartment, but it was like a corner room, so I had two windows, it had a cross-breeze, and we smoked in there, we both smoked in there, so we didn’t have to leave the house we could – and then it was separated from the children. I went to have a cigarette and then I came back from the smoking room to the living room, and that’s what happened.

Q. And so, were you – did you see the pole coming or was it from behind...

A. No, no, I could see...

Q. ...could you explain to the court.

A. ...I could see in the living room from where the angle I was coming, but [E.A.] was kind of standing like out of view, she was standing close to the wall in a way, like...

Q. Okay. What did you do in response, if anything?

A. I was not expecting it. It took the wind right out of me. Like I said, I had no shirt on, I was in my underwear, I was skin – right to my skin. I kind of reached for it – like I said, it took the wind out of me. After that, [E.A.] walked around me, went directly into our bedroom. I took fucking – sorry for swearing – took frozen vegetables out of the freezer and I put them on there. I knew I had to go to work tomorrow, and it was kind of like a – like right where my pant line would be, so I knew that it was going to be friction in there, so I put ice on it to try and keep the swelling down.

Q. What part of your – was it the front of your body or the back...

A. It was the front...

Q. ...the side?

A. ...it was – I would say it was right underneath my abdomen.

Q. On the front.

A. Like right around where my waistline would be.

Q. Okay. And what happened after that? Did anything else happen or...

A. No, she was kind of apologetic later. She came out of the bedroom. I mean, my son was in the living room at the time, and I mean...

Q. How old was [R.]?

A. [F], [F.]...

Q. [F], I’m so sorry, I don’t know why I keep saying [F]’s name as [R] this morning. My apologies. How old was [F]?

A. He would have been roughly two years old at the time.

Q. Okay. And he was present when this occurred?

A. That is correct, yes.

Q. Okay. And after this argument and this happened, did you and [E.A.] make up and resolve that?

A. Yeah, we, we did. She – like I said, she was apologetic afterwards, not right away, she stormed off into the bedroom, and then later on that day she was apologetic and we just kind of went on from there.

Q. Okay. Roughly when did that happen, [R.B.], what year, roughly?

A. That would have been 2018, at Dyson in Niagara Falls.

[45] R.B. denies ever threatening to kill or hurt E.A. He denies confining her to a closet at any time. While R.B. admits to having a BB gun, he denies pointing it at E.A. or holding it to her neck or touching her body with it.

[46] R.B. testified that he was at the Mississauga Avenue, Elliot Lake residence with the permission of E.A. As he stated in his evidence, “Absolutely, a hundred percent.” R.B. acknowledges that a branding incident occurred while he and E.A. were at that address, but his evidence is that that was an act of mutual branding with E.A. which took place with her full participation and consent. R.B. recalls the branding incident as occurring in August 2020. According to R.B., it was E.A.’s idea and done at her suggestion. As indicated by R.B. in his evidence, E.A. wanted to brand her initial into his buttocks and “So, I said if you’re doing it to me, I’m doing it to you too, and that was the agreement.” It was the evidence of R.B. that E.A. branded the initial “E” into his buttocks. Entered as Exhibit 4 is a photograph of R.B.’s buttocks with an “E” purported to be placed on it. As to why E.A.’s full initials “E.A.” were not branded into his buttocks, R.B. offered the following explanation:

The discussion at the time was she wanted to do both, I said – we are still in a relationship. I said what if we get married. I’m going to have an “E.A.” on my butt, and it’s not going to make sense if your last name is Bentz. So she was content with just branding the letter “E” into me.

[47] As to the branding incident, R.B. stated further that,

I know it started out she wanted to get her name tattooed on me, so if I ever went back to my other girlfriend that she – my other girlfriend would know that I was wit her. That’s how it started. I can’t say for certain whose idea it was for the brand. And I know she bent and that E all on her own. I didn’t force her to do any of that.

[48] R.B. was subject to a vigorous and aggressive cross-examination by Crown counsel. R.B. testified that the photograph of his buttocks with the “E” on it was taken on August 4 at 8:02 p.m. When the Crown asked him why the capture time for E.A. was August 8 at 11;14 and how this could be if the branding was done contemporaneously, R.B. testified that “I would say then that that picture was taken after it was already done and through the healing process, that’s what I would say.” R.B. disagreed with the suggestion put to him by Crown counsel that the “E” on his buttocks (Exhibit 4) is not as distinctive as the “R.B.” on the buttocks of E.A. (Exhibit 1).

[49] As to E.A.’s evidence that R.B. prevented her from having a male physician when she was at the hospital, he acknowledged that he “wasn’t happy” about E.A. having a male physician and that he was upset that a male physician would be delivering his daughter. R.B. testified that, “There was thing – I mean, this doctor came in, it was a thing and I mean it opened up and he put it in her vagina, and he fucking reefed the thing open, and I wasn’t happy about that particularly, and I would say that would be the extent of me not being happy with the male doctor”.

[50] When the evidence of M.A. about her seeing a barrel mark on E.A.’s neck was put to R.B., he responded that “I’m not saying she put the mark on her own neck. I’m not saying that there was a barrel mark on her neck. I don’t ever recall seeing her with a barrel mark on her neck.”

[51] As to the garage incident at Tokyo Crescent alleged by E.A., R.B. stated in cross-examination, “I say nothing remotely even close to that ever took place, not only not on 27 Tokyo, not anywhere.” R.B. denied striking E.A. with a broomstick, indicating in cross-examination that it “absolutely did not happen”.

[52] R.B. denied slashing E.A.’s arm or leg with a knife. As he testified in cross-examination, “I’m saying I never cut [E.A.] with a knife period.” As to what appears in the photographs (Exhibit 1), the explanation from R.B. was that “he assumed that she cut herself” because “she cut herself on many occasions”.

[53] In cross-examination, the criminal record of R.B. was put to him, which included several convictions for assault with a weapon, assault, and a conviction for breaching a recognizance.

[54] In the closing questions put to him in cross-examination, R.B. disagreed with the suggestion put to him by Crown counsel that he was a jealous, controlling, wife-beating, woman-beating narcissist.

DISCUSSION/ANALYSIS

[55] The case before the court is not a complicated one. It is a case of credibility and whether I accept the accused’s version of events or I accept the complainant’s version of events. Their evidence is polar opposite. They both cannot be telling the truth. The complainant is suggesting that certain things happened to her, and the accused is denying that this occurred. The outcome of the charges against R.B. comes down to credibility; whether I accept the evidence of the accused or whether his evidence raises a reasonable doubt, or whether I accept the evidence of the complainant, considering the totality of the evidence presented at trial.

[56] The accused, R.B., testified at trial. This brings the principles of R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 into play and is often quoted as representing the framework by which credibility is to be determined when an accused person testifies. In R. v. W.(D.) at para. 28 the Supreme Court stated:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[57] This formula of the court reinforces the principle that the Crown must prove the guilt of the accused beyond a reasonable doubt, which is a cornerstone in the criminal justice system in Canada.

[58] The W.(D.) analysis was synthesized for trial judges sitting alone in R. v. Dinardo, 2008 SCC 24 at para. 23:

The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.

[59] As a corollary to this jurisprudence, the trier of fact must be certain that they do not engage in a “credibility contest” as per R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (Ont. C.A.) at para. 5:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[60] In applying W.(D.), I do not believe the evidence of the accused nor does his evidence raise a reasonable doubt. There are several areas of the testimony of R.B. which cause me concern. R.B. testified that he never slashed the arm or leg of E.A. with a knife. The photographs of E.A. entered as Exhibit 1 clearly indicate that she sustained injuries which are consistent with being assaulted by a knife. R.B. attributed these injuries to E.A. cutting herself. Interestingly, R.B. later in his evidence testified he didn’t know how E.A. sustained these injuries after first indicating that she was a “cutter” and that the injuries were from cutting herself. The change in testimony by R.B. occurred when the Crown put to him the implausibility of his theory. The pictures of the complainant entered as Exhibit 1, in my view, clearly contradict the theory that E.A. cut herself. These are not the marks consistent with someone cutting themselves, either in size or in location. These are the marks of someone being slashed, especially the mark on E.A.’s arm. The photographs of E.A.’s arm and leg (Exhibit 1) belie the accused’s suggestion these wounds are self-inflicted.

[61] The evidence that R.B. gave with respect to the male physician assisting with the birth of his daughter can be characterized as bizarre. His explanation as to why he didn’t want a male physician assisting E.A. does not ring true and I conclude that his attitude toward the male physician is more reflective of him wanting to control and possess E.A., as she indicated in her evidence.

[62] I also do not accept the evidence of R.B. that the branding of E.A.’s buttocks was something that she wanted and that she initiated. I also do not accept the evidence of R.B. that his buttocks were branded at the same time with the initial “E” by E.A. The photograph entered as Exhibit 4 of R.B., in my view, does not depict a branding of R.B.’s buttocks. The mark on R.B.’s buttocks is faint and is substantially different than the “R.B.” brand on E.A.’s buttocks. Her branding is more pronounced and the marks can be made out without difficulty, being a pinkish, purple colour. It is difficult to accept the position of R.B. that this branding was done contemporaneously given the significant difference in the markings on the buttocks and the dates indicated on the cellphone photographs of the buttocks were on different days. I also find R.B.’s creative explanation for why just an “E” on his buttocks appears and not the full initials of E.A. difficult to accept. It was R.B. who was cheating on E.A. This was acknowledged by him. There is no evidence that E.A. was cheating on R.B. Given this, it does not make any sense why E.A. would not initial her full initials on R.B.’s buttocks, if she initialed this as R.B. suggests and if she did it as a warning to other women that she was with R.B. A simple “E” on R.B.’s backside would do nothing to deter him from cheating or to provide a signal or warning to those he was cheating with. If it was R.B. who was the one who was cheating why would his full initials be required on E.A.’s buttocks but only her first initial be on R.B.’s buttocks? In my view, this does not make any sense. I am not convinced that the branding on E.A.’s buttocks was done with her consent nor am I convinced that the branding was done contemporaneously with the mark placed on R.B.’s buttocks. My strong suspicious is that R.B. placed the mark on his own buttocks in as gently a way as possible as an afterthought to support the story that he was concocting.

[63] R.B. denies putting a BB gun to the neck of E.A. or threatening her with it while E.A.’s mother, M.A., was at their home on Dyson Avenue in Niagara Falls, Ontario. It was the evidence of M.A. that the accused pulled her daughter into another room and from that room she could hear a “snapping noise”. When her daughter emerged from the room, M.A. noticed red marks on her daughter’s neck that looked like the muzzle of a gun, describing the red marks as “a really red mark with a circle on it”. The complainant later disclosed to her mother that the red mark was from a BB gun that the accused had placed on her neck. I have no reason to disbelieve the evidence of M.A. about what she saw on the neck of E.A. M.A.’s description is consistent with the mark that would appear from the barrel of a BB gun. Although she was not in the room with the accused and the complainant and did not see what occurred, the evidence of M.A. as to what she saw afterwards supports the version of events given by E.A. and directly contradicts the version of events given by R.B. This causes me to believe that the version of events given by R.B. about the BB gun incident are not true and, in my view, it raises serious doubts about the credibility of R.B. and whether his undetailed denials can be accepted by the court.

[64] In applying W.(D.), I do not believe the evidence of the accused nor does his evidence raise a reasonable doubt. It is therefore the third prong of the W.(D.) test that must now be considered by the court. Even if I am not left in doubt by the evidence of the accused, I must go on to consider the evidence as a whole and must ask myself whether on the basis of the evidence I do accept, if I am convinced beyond a reasonable doubt by the evidence of the guilt of the accused. I must consider whether the Crown has proven the guilt of the accused beyond a reasonable doubt.

[65] The aforementioned questions will be answered, in large part, by whether or not I accept the evidence of the complainant, E.A. In examining the evidence of E.A. as a whole, there was a ring of truth to her evidence. There was an unsophistication to the way that E.A. gave her evidence. She was clearly traumatized by the events she experienced and this trauma appeared genuine. There were many times during her evidence when E.A. was sobbing or had difficulty relating the events that she experienced. When describing the sexual assault at the Dyson residence, E.A.’s level of upset was so pronounced that she could barely get her testimony out. At times while giving her evidence, E.A. was emotional and distraught. It was clearly difficult for E.A. to relate what happened to her to the court.

[66] I found that the evidence of E.A. was given in a deliberate and thoughtful manner. She agreed with the obvious. She agreed with defence counsel’s suggestion put to her in cross-examination that her scar from the knife (Exhibit 1) has faded a lot and is now more of a scar and less of a wound and is now more purple in colour. E.A. was asked in examination in-chief whether there were any other weapons used against her at the Tokyo residence. The question put to her by the Crown was direct and suggestive, “All right. Is there anything else, any other tools, implements, weapons of any sort? Brooms, hammers, sticks, chains, anything?” E.A. response to that question was, “Not that I could remember at Tokyo.” This was a perfect opportunity for E.A. to spin a tale about other weapons used against her if she desired to spin a tale. E.A. did not do so. She resisted an opportunity to embellish her testimony and she resisted other similar opportunities while giving her evidence.

[67] With respect to the hammer incident, it was the evidence of E.A. that she was not hit by the hammer by R.B. He was chasing her with it but the kitchen table got in between them and she was able to leave. This was a perfect opportunity to exaggerate her evidence and put R.B. in the worst light possible. If E.A. wanted to be untruthful with the court or to exaggerate her evidence, this was a perfect opportunity for her to do so. She could have simply testified that R.B. hit her with the hammer. She did not do so. She acknowledged that she was not hit with the hammer and had an opportunity to free herself from the situation. This evidence has the ring of truth to it.

[68] In my view, the evidence given by E.A. in chief was consistent with the evidence given by her in cross-examination. E.A. was not shaken in cross-examination. There were no inconsistencies in her evidence that were able to be put to her, either from statements that she had previously given to the police or evidence that she had previously given to the court. The testimony of E.A. was consistent in examination in-chief and in cross-examination as to the description of events and the details provided by her.

[69] In cross-examination, defence counsel asked E.A. about the sexual assault that occurred in R.B.’s office on Dyson Avenue. In her question to E.A., counsel suggested that she was tied up and raped in his office and E.A. replied that she was not tied up in his office on Dyson Avenue. The exchange between counsel and E.A. was as follows:

Q. So, the only time that you were in his office on Dyson was the time that you described yesterday when you said that he tied you up against your will and had sex with you against your will. That was the one and only time you were in the office.

A. He didn’t tie me up at that time. He had grabbed me by the hair and forced me. The only other time I was in there was when we first moved there so that I could help him put his stuff into there.

The evidence given by the complainant was consistent throughout and the story she told in examination in-chief was the same as the story she told in cross-examination.

[70] It was my impression that E.A. was trying to be truthful in her evidence. At one point she testified that she and her mother did not leave the Dyson Avenue residence when her mother came to visit her but she corrected that evidence as follows, “I forgot about going to Walmart, but we did do that because CAS had come and said that the kids – my daughter needed a proper bed to sleep in”. E.A. candidly admitted that she had forgot about that.

[71] The defence suggested that aspects of E.A.’s behaviour and her response to the situation she was in made her evidence questionable and less worthy of belief. For example, the defence suggested that E.A. had ample opportunity to leave but did not. R.B. was at work, her mother purchased a plane ticket for her to leave but E.A. did not leave. E.A. was provided bank cards and cellphones to use them as tools to assist her to flee the situation but she did not. She did not take the opportunity to leave, the defence suggests, which is not the actions of someone who is in an abusive relationship. The defence suggests that E.A. delayed in making a report to the police and provided that disclosure incrementally, all casting doubts about whether the abuse really occurred at all.

[72] It is now well-known to the court that victims of abuse react and respond differently to the situation that they are in. There is no typical behaviour that can be relied upon in situations of domestic abuse. It is dangerous for the court to rely on stereotypical behaviour as to how an individual is or is not likely to behave while experiencing domestic violence or after being sexually assaulted to make assessments about their evidence. In fact, reliance on such stereotypical behaviour to assess credibility is prohibited. Appellate authority has made it clear that courts should not rely on stereotypical views about how victims of sexual assault would or would not behave to assess credibility and to do so is a reviewable error of law. (See: R. v. A.B.A., 2019, ONCA 124).

[73] Late or incremental disclosure in sexual assault cases will not, standing alone, constitute a reason to diminish a complainant’s credibility. At para. 65 of R. v. D.(D.) 2000 SCC 43, a majority of the Supreme Court of Canada stated:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[74] In R. v. E.B., [2021] O.J. No. 6892, the Court of Appeal of Ontario re-affirmed that trial judges need to consider the explanation given by a complainant as regards incremental disclosure. At paras 38 and 39, the court stated:

As noted earlier, the appellant asserts that the trial judge erred in his assessment of the complainant's evidence by failing to consider that she lied to the police by not disclosing the fellatio and by lying about her cocaine use in her statement to the police and at the preliminary hearing.

As to the former, the trial judge identified the reasons the complainant gave for her delayed disclosure of the fellatio as opposed to the forced intercourse: she was embarrassed and felt she could have avoided it. As to the latter, the trial judge also identified the complainant's explanation that she did not initially disclose her purchase and use of cocaine because she was ashamed about it, did not want her parents to find out about it and was afraid about the criminal law consequences. The trial judge addressed this issue at length in his reasons, noting that the complainant had lied at the preliminary hearing. He accepted the complainant's evidence about why she did not disclose her drug use. While the trial judge was obviously aware of the significance of lying under oath, and might have found that the falsehoods impacted her credibility and reliability, he did not do so. Instead, he found that these falsehoods were explained persuasively by the complainant and therefore did not impact the complainant's credibility or reliability on the central issues. He was entitled to accept her evidence and her explanation.

[75] In the case at bar, the complainant, E.A., provided the court with a reasonable explanation as to why she did not go to the police or leave the accused. As she stated in her evidence, “I was scared to leave and he was just so good at bringing me back in. He would say he was sorry for everything and that he loved me and he would change and it would stop and we could be a family.” As E.A. put it, “he was just so good at sucking you back in”.

[76] E.A. also testified that she was afraid of R.B. and that delayed her reporting to the police. She testified that she didn’t tell anyone “because he would kill me. I honestly believed that he would”. E.A. gave evidence that she went to the police in January 2021, at the urging of her CAS worker, Dawn Lamswood. As E.A. testified, “At that point I was really scared that he would do something to me or my kids and I did not want that for my children.”

[77] In considering the evidence of the complainant, E.A., I accept her evidence and I find it credible and compelling.

CONCLUSION

[78] For the reasons set out, the evidence of the accused, R.B., is not believed by this court nor does it raise a reasonable doubt. I accept the evidence of the complainant, E.A., which I find to be thorough, thoughtful, consistent and given in a truthful manner. I am therefore satisfied beyond any reasonable doubt that the complainant’s version of events did occur. Having made that finding as it applies to the indictment dated August 4, 2021, as amended May 12, 2022, this court convicts the accused on counts 1, 3, 4, 5, 6, 9, 17, 18, 19, 20, 22, 23 and 24. I am not satisfied that the balance of the counts are made out even on the accepted evidence of the complainant, E.A., or that they are not duplicitous given the finding of guilt on the other counts.

Gareau J.

Released: June 30, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R.B.

REASONS FOR JUDGMENT

Gareau J.

Released: June 30, 2022