COURT FILE NO.: CR-20-71

DATE: 20220714

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

B.B.

Defendant

Lerren Ducharme, for the Crown

Jeff Conway, for the Defendant

HEARD: June 6, 7, 8, 9, 10

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

TRANQUILLI J. (ORALLY)

Introduction

[1] Mr. B. is charged with seven violent offences arising from an 18-month relationship with his former intimate partner, D.R. The accused and complainant agree they had a “toxic” relationship.

[2] The determination of these charges turns on the credibility and reliability of the accused and the complainant. The alleged offences all took place in the privacy of D.R.’s apartment. However, there are audio recordings secretly made by the complainant in the last months of their cohabitation that ostensibly witness the nature of their relationship and some of the offences in issue.

[3] On the evening of December 1, 2018, an officer with the London Police Service was dispatched to the Anova women’s shelter on Wellington Road in London to meet D.R. D.R. arrived at the emergency shelter earlier that day with her infant daughter, A.R. D.R. told the officer she had just left the accused B.B. because of intimate partner violence that had occurred over the previous 17 months.

[4] D.R. told the officer of several instances of physical and emotional abuse by Mr. B. during their relationship. The officer noted D.R. was distraught. She had several notable bruises on her arms. She also showed the officer a scar on her shoulder that she said came from the accused deliberately extinguishing his cigarette. The officer arranged for D.R. to attend the police station the next day for the alleged injuries to be photographed. D.R. also told the officer she had secretly recorded several of the couple’s conflicts on her cellphone. The police later downloaded approximately 10 hours of such recordings from D.R.’s cellphone.

[5] Mr. B. was arrested in the early morning of December 2, 2018, while attempting to enter D.R.’s apartment. He gave a police interview later that morning. He said he had never been angry with D.R. He told the police officer that he was a loving and respectful boyfriend and that he was in the middle of the next step in their relationship where he would soon call D.R. his wife. He did not know of the existence of the audio recordings when he made those representations to the police.

[6] Mr. B. faces a seven-count indictment on the following Criminal Code offences against D.R.:

• Count 1 - Sexual assault of Ms. R. between August 1 and October 31, 2017;

• Count 2 - Assault of Ms. R with a weapon between June and September 30, 2018;

• Count 3 - Assault of Ms. R. between June 1 and November 29, 2018;

• Count 4 - Sexual assault of Ms. R. between November 1 and November 30, 2018;

• Count 5 - Sexual assault of Ms. R. on or about November 29, 2018;

• Count 6 - Assault of Ms. R. on or about November 29, 2018; and

• Count 7 - Uttering a threat to Ms. R to cause death on or about November 29, 2018.

[7] At trial, the Crown evidence indicated that the timing of Count 3, assault by choking, also occurred during an argument between the parties that occurred on or about December 1, 2018. With reference to R. v. B.G., 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, the Crown submitted the accused had adequate notice of the particulars of the alleged offences. This was not disputed by Mr. B.

[8] Mr. B. elected to be tried by judge and jury. However, on the first day of trial he re-elected with Crown consent to be tried by judge-alone.

[9] Identity and jurisdiction are not in dispute. The authenticity of the photographs of the complainant and the audio recordings made by the complainant are also admitted.

[10] The Crown led evidence through the complainant, D.R. and the police officer who interviewed her. The Crown also relied upon the audio recordings taken by D.R. of several altercations between her and the accused between September and November 2018.

[11] The Crown edited the 10 hours of recordings down to approximately 1 hour in total comprised of seven excerpts. The Crown adduced these excerpts at trial either for narrative context or as being evidence of the commission of the offence itself.

[12] The accused acknowledged he was in possession of the 10 hours of recordings and admitted the authenticity of those recordings, in that they depicted interactions between he and the complainant on the dates and times in question. The accused raised no objection as to the edited audio clips the Crown proposed to adduce at trial.

[13] The Crown previously brought a pre-trial application to rule on the admissibility of this evidence. This application was before a different judicial colleague. The Crown submitted this evidence would provide narrative context to a history of an abusive relationship where the complainant was afraid of the accused, as well as to refute a potential self-defence argument at trial. The application was resolved on consent on terms that the Crown was at liberty to proffer the uncharged discreditable conduct outlined in the application and factum.

[14] At the trial management conference, I raised my concern with counsel that the disposition of the pre-trial application did not appear to address the existence and content of the audio recordings. Further, the manner in which the jury would receive both the audio evidence and the complainant’s own testimony about the uncharged conduct was also unaddressed. My concern was in balancing the probative value with the prejudicial effect. I sought to identify whether any limits should be put on the complainant’s evidence and these recordings to minimize or reduce the prejudice and prevent its misuse by the jury.

[15] Ultimately, the accused re-elected to judge alone, therefore largely mitigating the court’s concern. The defendant did not challenge the admissibility of the recordings. I will return to the relevance and proper use of the audio recordings later in these reasons.

[16] Mr. B. testified in his own defence. He admitted the authenticity of the recordings heard at trial, subject to his position that the recordings were one-sided, and the statements were interpreted out of context. The defendant submits the complainant is not a credible witness and that the events she described either did not happen at all or did not happen in the way she described them. He submits the sexual activity was consensual or based on an honest but mistaken belief in consent. He denies that the third count of sexual assault occurred. As to the incidents of assault, he admits to most of the incidents, but raises defences of accident, self-defence or consensual fighting. He admits to making the impugned statements to D.R., but submits they were no more than a “figure of speech”.

Overview of Evidence

[17] I start with a summary of the events surrounding the relationship of Mr. B. and the complainant D.R.

[18] D.R. is 35 years old. Mr. B. is 34 years old. They first met at work in or about 2013. They reconnected a few years later and started an intimate relationship in the spring 2017. Their relationship ended on December 1, 2018 with D.R.’s departure and these charges.

[19] D.R. has two children: E.H. from a relationship with a former partner and A.R. from her relationship with Mr. B. Mr. B. is now in a relationship with a new partner, and they are raising their own children and blended family.

[20] D.R. and the accused began living together in D.R.’s apartment in London in or about June 2017. D.R. held the lease on the apartment. Mr. B. did not pay rent.

[21] The complainant and Mr. B. agree their relationship was “toxic”. They frequently argued. The complainant agrees that during some of these conflicts she would curse at, lash out and strike the accused. She is not charged for this conduct.

[22] As mentioned, D.R. has a young daughter E.H. from a previous relationship. D.R. shares parenting time of E.H. with her former partner. In 2018 D.R. was involved in family law litigation with her former partner over parenting time of E.H. Among other issues, E.H.’s father objected to the child having parenting time with the complainant while she was living with the accused. He questioned whether E.H. would be safe. The complainant swore a responding affidavit in the summer 2018 attesting that the accused was a caring man. I will return to the significance of that representation later in my reasons.

[23] Mr. B. and the complainant agree they used cocaine during their relationship, although they disagree as to frequency of D.R.’s use. The complainant testified she used cocaine on a handful of social occasions before she became pregnant with their child. She testified the accused used it regularly and graduated to using crack, which he would cook and use in her apartment before and after work. Mr. B. acknowledges it is possible he was using crack at the material times during some of the offences charged.

[24] Both parties agree their relationship changed when D.R. became pregnant in or about November 2017. They began to fight more often. Their daughter, A.R. was born in August 2018.

[25] At about this time in August or September 2018, the accused began making audio recordings of D.R. while she was alone in the apartment with their newborn child, and he was away at work. Those recordings were not available for this trial. Mr. B. said the information was lost after his arrest and his inability to get into the apartment to retrieve his belongings.

[26] Mr. B. testified he made the recordings to show how unsafe it was for children to be in the home. He also claimed the recordings would show consensual conflict but also periods of calm.

[27] D.R. testified the accused would either conceal his phone somewhere in the apartment or just leave it out for her to see while he was at work. He would then listen to the recording on his return. He would then become angry, and the couple would argue. D.R. testified she was on constant guard, wondering where his phone was and what would set Mr. B. off. D.R. testified the accused was preoccupied with sex and his belief she masturbated while he was away. On one occasion, he claimed that in the audio recording on his phone he could hear D.R. masturbating on the living room couch. She said what he could hear was her eating candy – Sour Keys. D.R. testified the accused would not let go of this suspicion until she swore on his father’s grave. Mr. B. acknowledged the incident but said the argument “faded away” and they moved on.

[28] In or about September 2018, the complainant D.R. also began recording her interactions with Mr. B. on her cellphone, without his knowledge. She testified she began recording him both because of their escalating confrontations and because he was recording her all the time. Everything seemed to be getting worse and more physical and she feared him. She also suggested she thought that maybe if she showed him the recordings it would help their relationship. She testified she never had the strength to listen to the recordings. She claimed she was hearing the excerpts for the first time at trial. She testified that while these recordings are only examples of how he would behave towards her, their relationship was consistently like what we hear in the excerpts after she became pregnant in November 2017.

[29] After A.R. was born, the accused repeatedly told D.R. he would leave her and take their daughter in three months. The audio recordings from September 18 and 23 and November 29, 2018, confirm the repetition of these threats. D.R. testified she did not understand anything about the three-month ultimatum at the time. He never did leave despite the threats. Mr. B. testified he was unhappy in the relationship and thought it was unsafe for their child. After their daughter was born in August 2018, he decided he would leave the unsafe environment with their daughter once she was a little older and could be weaned to formula feeding. He did not think he was a big factor in the unhealthy environment. In his view they were both the problem in the relationship.

[30] I now turn to review the content of the audio recordings heard at trial. The recordings were entered as exhibits on consent without transcripts. The recordings mark the last weeks of the parties’ relationship between September and November 2018. It relates to both charged and uncharged conduct. I only provide the gist of the recordings for the purpose of these reasons. I do not represent it as being complete. It is in no way a verbatim transcript, nor do I intentionally put emphasis on any part of the recording. The summary is simply to assist in conveying the nature of their dealings and the grounding of my analysis. I also note the recordings are laden with profanity used by both parties. I have repeated it in my summary for the purpose of conveying the nature and tone of their communications.

September 18, 2018

[31] There are two excerpts on this date. Mr. B. tells the complainant he can take their child to his mother’s if he wants to and demands the complainant’s breast milk. The complainant asks why he can’t pay rent and why does he treat her this way. She says if he hates her, then he should just leave. He calls her a “dumb cunt” and “bitch”. He refers to papers being ready. D.R. testified that he was referring to court papers he said he had ready to claim custody of their newborn daughter. This explanation is not disputed by Mr. B.

September 23, 2018

[32] Mr. B. repeatedly tells the complainant their daughter will be his in three months. He tells D.R. to move her “fat ass”. The complainant protests she made him dinner. Mr. B. retorts that he did not eat it. They argue about whether he contributed money for rent and whether or not she stole money from what he gave her. He tells her: “I’m going to put you to sleep bitch” and that she is a “fat lazy cunt.” He tells D.R. he “despises” her and that he has more love for his girlfriends on the side than he has for her. He warns the complainant that “I’m going to put you to sleep bitch” and that if she takes their daughter, “I will make sure your ass is grass”. He tells the complainant she is a “useless pig” who “plays with herself”. D.R. protests and tells him that if he has no respect for her then he should “just go.” Their infant daughter, who would then have been about one-month old, is heard crying throughout this conflict.

November 28, 2018

[33] In this excerpt, the complainant and Mr. B. are heard arguing about who he was speaking with on his phone. He calls her a liar and states he does not have to tell her anything because she is not his girlfriend. He says he is only there because his child is there. D.R. protests. Mr. B. states he was naked the night before in bed but that they did not have sex. D.R. says she fell asleep. Mr. B. tells her she always has excuses and accuses her of masturbating all day. He tells her she is a pathological liar.

November 29, 2018

[34] There are two excerpts from this date. It is uncontroversial the conversation begins on the balcony of D.R.’s apartment.

[35] Mr. B. tells the complainant: “call the cops bitch, I dare you.” He states he will tell the police that D.R.’s older daughter is smacking their infant and the police will take the baby away from her. He goes on to claim he will get sole custody of their baby and D.R.’s former partner will get sole custody of E.H. and then D.R. will be alone. D.R. asks Mr. B. to let her go inside. He tells D.R. she is a “worthless fucking piece of shit”, and we hear a noise. We then hear D.R. state: “you just fucking spit on me.” D.R. testified he was holding her arms tight in front of her and that he would not let her go inside. We hear D.R.’s older child E.H., then about 3 years old, trying to intervene and telling Mr. B. to stop. Mr. B. tells D.R.: “If I’m that bad a person you would have called the cops on me a long time ago.” She responds: “Yes and you told me you’d kill me if I fucking did.” He responds: “Prove it … You have no proof on anything you can say to anyone”. He tells D.R. he will never go four days without sex again. He states if she does not give him what he wants then he won’t stop. He swears he will get sole custody of their daughter just like D.R.’s former partner will get sole custody of her older daughter.

[36] The second excerpt opens with him criticizing the complainant for not clearing off the bed. She says she was trying to put the baby to bed. He tells her to shut up and calls her a “fat heifer”. He yells at her for touching his belongings. She asks him to stop yelling because the children are sleeping. He calls her a “fucking heifer” more than once during this tirade. After making a series of further demeaning comments he tells her he will “see your ass in court bitch”.

December 1, 2018

[37] This last recording from the early morning hours of December 1, 2018, marks the final hours in the relationship before D.R. left and called the police.

[38] The excerpt begins with D.R. complaining that if Mr. B. was going to go then he should go, she was not going to do this all night and have him keep her up all night again. They are on the balcony of the apartment arguing. She asks for a cigarette. He refuses and tells her to go to the store. They bicker about this for several minutes. He tells her that she did nothing for him all day. He warned her that one more day of no sex and they were done. He would see her in court. He describes that she is rolling her eyes and states that if she was not a girl right now “I would dock you in the fucking mouth.”

[39] A struggle is heard. Their infant daughter is heard crying. D.R. screams at Mr. B. that he is holding their daughter in his hand. D.R. cries out “ow”. D.R. asks Mr. B. to get off her. Mr. B. says he is not doing anything but hugging the complainant. He then asks: “why, are you fucking scared?” He then tells D.R. that their child better be home when he gets back from work the next day. There are sounds of physical movement and we can hear the infant continue to cry.

[40] Mr. B. declares: “I wish I could just knock you out man, I really do.” D.R. repeatedly tells him to go if he’s going to go. It is undisputed that at this point D.R. threw his cellphone across the room. We hear Mr. B. curse D.R. for throwing his phone. He tells her to get it. We then hear her cry out and say: “get your hands off my neck.”

[41] This concludes my summary of the audio excerpts.

[42] D.R. testified that on the morning of December 1, 2018, the accused had gone to work and that she was alone in her apartment with their child. Her older daughter was with her former partner. She described herself as exhausted. She texted a friend about what had happened the previous night. As a result of their conversation, she contacted Anova and spoke twice with a worker over the telephone. She decided to leave the relationship and go to Anova with her infant daughter. She testified that she loved Mr. B. up until the moment that she made this decision to leave. She gave a statement to police later that evening.

[43] She immediately commenced court proceedings regarding parenting time of their child, A.R. The court was told Mr. B. currently has regular parenting time of their daughter, supervised by his family. The form of the parenting order for their child remains in litigation.

The Offences

Count 1 – Sexual Assault Between August 1 and October 31, 2017

[44] The complainant volunteered that her memory of this incident was fuzzy. It happened between when the accused moved into her apartment in June 2017 and when she became pregnant in November 2017. She recalled being in the hallway of her apartment with the accused. He pushed her on her back into the bedroom and facedown onto their bed. He pulled her pants down and forced himself in her vagina from behind. She did not want to have intercourse. She recalled him saying he wanted to have sex and that he was going to have it. She recalled telling him that she did not want sex. Whether this was before or during intercourse, she cannot recall. She also thought it was clear to him that she did not want sexual intercourse because she laid limp on the bed. He ejaculated. They both pulled up their pants and went on.

[45] Mr. B. testified it was consensual sex that day. It was unclear as to whether he specifically recalled this incident. He maintained that all their sexual intimacy was consensual. He never forced her into the bedroom or onto the bed. He expects she would retaliate or fight back if he had ever tried to do so. He testified she was not limp during any sexual intercourse.

Count 2- Assault with a Weapon Between June 1 and September 30, 2018

[46] The complainant testified that she and the accused were standing in the hallway of her apartment. She was unsure of a date but recalled it was during her pregnancy. She recalled Mr. B. was angry. He suddenly reached out with his lit cigarette and extinguished it on her right arm.

[47] She identified the scar from Photographs from Exhibit 2 at the trial. They show an almost circular white scar on the complainant’s right arm, between her shoulder and elbow, as described by her in testimony.

[48] In the complainant’s view, Mr. B.’s actions were intentional. He was standing near her with the cigarette in his hand and then simply reached out and put the cigarette out on her arm. She disagreed it could have been an accident from simply brushing against the ember. She said the burn caused a deep wound that took several weeks to heal, as shown by the residual scar.

[49] Mr. B. testified the burn was accidental. They were having a conversation in the apartment. They had had a few drinks. He explained that his arms tend to flail when talking. D.R. then bumped into his cigarette. The cigarette remained lit. He said he apologized to her, and she said it was fine, it was an accident.

Count 3 – Assault Between June 1 and November 29, 2018

[50] The complainant recalled she was about six or seven months pregnant when this event occurred. She was initially confused as to dates as she also recalled being choked by the defendant after their child was born.

[51] She testified that on this occasion, while pregnant, she was sitting on the edge of the bed and speaking with the accused. They were arguing. She could not recall what they were arguing about. She said it was usually about him wanting money. He grabbed her neck with one hand, squeezed her neck and covered her mouth, at one point also plugging her nose. She recalled having some bruising and a small cut on her lip from his hand over her mouth. She conceded that she may also have struck the defendant during this conflict.

[52] Mr. B. denied this incident.

[53] There is a second allegation of choking that occurred on or about December 1, 2018. For continuity, I will address that evidence under Count 6.

Count 4 – Sexual Assault Between November 1 and November 30, 2018

[54] D.R. testified that Mr. B. was already in their bed. She thought he was mad at her because she had not given him oral or sexual intercourse. She tried to cuddle with him, but he shrugged her off. She rolled over with her back to him. She then felt him against her back. She recalled him saying something like he wanted anal. He held her arms and pinned her down with one of his legs. He pulled down her shorts or underwear and pushed his penis into her anus. She recalled it was painful and that she held onto the headboard with one hand and trying to push him away with the other hand. She was crying and asking him to stop. He told her it was punishment for not giving him sex. He told her “Just a few more minutes babe”. He ejaculated. She went to the bathroom and found blood which she managed with toilet paper. She told him she was hurt. He apologized.

[55] Mr. B. acknowledged the incident of anal intercourse but testified it was consensual. They had a discussion earlier in the evening about sex and agreed to have anal intercourse later that night after her older daughter went to bed. He got into bed after having a shower. She joined him. They began cuddling and it progressed to anal intercourse. He denied threatening her or telling her that it was punishment. He denied that she told him to stop. He first denied that D.R. told him she was injured but later said he could not remember, and it was possible he apologized. He acknowledged that he did not ask for her consent once they were together in bed. He denied that she was crying during the act but agreed he heard her cry afterward. He relied on their “mutual agreement earlier.”

Count 5 – Sexual Assault on or about November 29, 2018

[56] The complainant testified that on November 29, 2018, she and the accused were in another argument. She could not recall why. She was sitting on the edge of their bed. Their conflict progressed to where she was sitting on the ground next to the bed with the accused holding her down by her arms. He wanted sex and accused her of playing with herself. She was curled up on the floor with her knees up to her chest. She was fully clothed. He rubbed her vaginal area very hard over her clothing with his hand. She testified he tried to digitally penetrate her vagina with his fingers through her clothing. She asked him to stop because it was hurting her. She identified photographs showing bruises on both arms taken on December 2, 2018, and believed those bruises came from this incident.

[57] Mr. B. agrees there was an argument but denies that he forcefully touched her vagina as described by D.R. He conceded he might have been high on crack that evening but that knows he did not touch her in that way. He conceded that there was a disagreement where they ended up on the floor and he agreed he was holding her. It was possible that she had bruises from that. However, he maintained it was in self-defence from the heated argument.

Count 6 – Assault on or about November 29, 2018

[58] The complainant testified that on that evening, she and the accused were on the balcony of her apartment. Her older daughter E.H. was inside. She and the accused were arguing. He spat on her. The act of spitting is evidenced on the recording and D.R.’s reaction to it.

[59] She recalled that Mr. B. stayed home from work the next day, November 30, 2018. He stayed in the bedroom throughout that day with their infant and would only take the child to D.R. to be fed. They did not speak to one another. She took her older daughter E.H. to her former partner’s home. She and the accused argued after her return. This continued into the early hours of December 1, 2018. She threw his phone across the room, and he put his hands on her neck. She thought his hands were on her neck for a few seconds.

[60] Mr. B. acknowledged spitting, which is heard on the audio recording, but testified he did not spit directly at D.R. The spit landed on the ground to her left. In cross examination he said it was an accident.

[61] Mr. B. acknowledged holding D.R. during the struggle on December 1, 2018. He explained that the “ow” we heard from D.R. on the recording was from him grabbing her hand. He agreed he was holding her against her will and that he was hovering over her. He protested that he was hugging her. He conceded in cross examination that it did sound as though D.R. was scared. He then claimed D.R. could have removed him but conceded that in the recording we hear D.R. ask him to get off from her and that he says “no”.

[62] He admitted that his hands were on D.R.’s throat at one point during this conflict, as suggested by the audio recording. He denied intentionally choking her. He testified they landed on the bed in the struggle and that his hands fell onto her neck.

Count 7 – Uttering Threat to Cause Death on or about November 29, 2018

[63] This count arose during the sexual assault where D.R. testified Mr. B. restrained her on the bedroom floor on the night of November 29, 2018, and forcefully rubbed her vaginal area. She asked him to stop and threatened she would call the police. He whispered in her ear, “if you call the cops, I will kill you”. She testified his statement shocked and scared her. It made her more aware of just how much he hated her.

[64] Mr. B. did not deny making this statement to her. He testified it was only a “figure of speech”.

The Law

Presumption of Innocence and the Burden of Proof

[65] The Crown has the burden to prove each offence charge beyond a reasonable doubt.

[66] Mr. B. is presumed to be innocent. He is not required to prove a thing.

[67] The onus is on the Crown to prove Mr. B.’s guilt beyond a reasonable doubt. That heavy burden rests on the prosecution from beginning to end. It never shifts to Mr. B.

[68] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence.

[69] Proof beyond a reasonable doubt does not involve or require absolute certainty. However, more is required than proof of probable guilt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. The Crown bears an onus which is much closer to absolute certainty than to the civil standard of a balance of probabilities. The standard of proof applies to each of the essential elements of the offences and requires that I determine whether the evidence as a whole establishes proof beyond a reasonable doubt.

[70] Because of Mr. B.’s testimony, I remind myself of the following principles from R. v. W.D in my consideration of the evidence and in deciding whether the Crown has discharged its burden to prove each offence beyond a reasonable doubt.:

[71] First, if I believe Mr. B.’s evidence, obviously I must acquit;

[72] Second, if I do not believe Mr. B.’s evidence, but am left in reasonable doubt by it, I must acquit;

[73] Third, even if I am not left in doubt by Mr. B.’s evidence, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. B.’s guilt.

[74] I adopt the approach of my colleague, Justice Code on the application of these principles. The formula does not describe three sequential analytical steps that a trier of fact must pass through, one at a time - rather, the steps are simply different results or alternative findings made at the end of the case when considering the totality of the evidence. A trier of fact must look at all the evidence when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond a reasonable doubt and whether the accused’s exculpatory account must necessarily be rejected. These decisions are all made at the same time on the basis of the same total body of evidence: R. v. Thomas, 2012 ONSC 6653 at paras. 23 and 24.

Credibility

[75] These offences concern allegations of criminal conduct that occurred in private between two people. Credibility assessments are a central issue that help to inform the findings that determine whether the Crown has proven the essential elements beyond a reasonable doubt or whether the evidence, considered as a whole, raises a reasonable doubt.

[76] I must examine both the internal consistency of a witness’s evidence as well as the consistency of that evidence with other witnesses. I must apply the same level of scrutiny to all witnesses.

[77] I must be mindful of the plausibility of a witness’s account and of any motive to fabricate or embellish. I must consider a witness’s interest in the proceedings and assess whether their evidence is corroborated or contradicted by other witnesses or other evidence. In assessing credibility, I have considered the general integrity and intelligence of the witness, the witness’s opportunity to observe, capacity to remember and accuracy in statements. It is also important to determine whether the witness is honestly endeavouring to tell the truth, whether sincere, frank, biased, reticent or evasive.

[78] I must be careful not to place too much weight on the demeanour of any witness, considering the increasing recognition that individual traits and experiences may impact demeanour without necessarily affecting credibility.

[79] A valuable means of assessing the credibility of a witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. I must also assess what is testified to in the context of all the evidence in the case and not on an isolated basis including any inconsistencies and whether these are inconsequential or material and significant to the case. If the inconsistency is significant, then this court must pay careful attention to it when assessing the reliability of the witness’s testimony.

[80] The role of confirmatory and contradictory evidence can be especially important when assessing the evidence of some witnesses. However, confirmatory evidence need not directly implicate the accused or confirm the Crown witness’s evidence in every respect. Rather, the confirmatory evidence should be capable of restoring the trier’s faith in the relevant aspects of the witness’s account.

Sexual Assault Myths

[81] In considering the evidence I must also consider that there is no place for assumptions as to what constitutes sexual assault, how it will occur, what kind of person may be the victim or perpetrator of such an act, or what a person who is being, or has been sexually assaulted will do or say. Experience tells the courts that there is no stereotype for sexual assault, persons who commit it, or persons who are victims of such offences. The crime can take place in almost any circumstance between all kinds of different people who react in a variety of ways.

Analysis

Credibility

[82] As I noted earlier, the credibility of D.R. and Mr. B. is central to a determination of whether the Crown has proven each of the offences beyond a reasonable doubt. I now turn to my assessment of the evidence of the principal witnesses, Mr. B. and D.R.

Mr. B.

[83] Mr. B. testified and exposed himself to cross-examination. He was not obligated to do so. He was exceedingly polite throughout his testimony. His tone and demeanour at trial was in stark contrast to what the court heard on the audio recordings.

[84] He made admissions that did not put him in the best light, such as his profane behaviour heard on the recordings and his drug use. He also acknowledged that the bruising seen in the photographs of the complainant’s arms could have been caused by him.

[85] At the same time, he also seemed motivated to cast himself in a positive light and to minimize any responsibility for the relationship conflict. He acknowledged he and D.R. had a toxic relationship but could not agree with his counsel’s own suggestion that he was a big factor in that problem. It is uncontroversial that he repeatedly threatened D.R. that he would leave with their child in three months, as was heard throughout the audio recordings. He claimed this was because of the unhealthy environment and that he was waiting for the infant to be weaned. I find this to be implausible and internally inconsistent. It is manifestly contradicted by his conduct in those recordings which cannot be described as child-focused behaviour.

[86] He was also non-responsive and evasive in cross-examination. For example, when asked why he told D.R. that he would kill her if she called the police, and why he made other of the threatening comments to her, he could only repeatedly say it was a “figure of speech”.

[87] There were questionable representations on peripheral issues, such as whether he was supportive of D.R. in her custody dispute with her former partner and whether sex was important to him. His statements at trial were at odds with statements he made to D.R. in the audio recordings.

[88] But most significant are Mr. B.’s representations to police in contrast to what the court heard in the audio recordings. Mr. B. did not know about the existence of these recordings when he was interviewed by the detective. In that interview he asserted to the officer that he was loving and respectful of D.R. and that they had never had a physical altercation. He told the officer he was in the middle of taking his relationship with D.R. to the next step, where he would call her his wife. He also told the officer she had no reason to be scared of him.

[89] These representations are at odds with his various demeaning statements to the complainant, his repeated threat that he would be taking their child and leaving in three months and his taunting statement to her just a day earlier to the effect of “am I scaring you?”. On cross-examination, he had to admit that those representations to the police officer were lies. His only explanation for these lies is that he was “pinned in a corner” and that he just wanted to get out of the interview. This raises concern about his truthfulness in his testimony in this trial.

D.R.

[90] D.R. testified through CCTV. She was tearful throughout her testimony and required some breaks to compose herself. Her account was disorganized and appeared unrehearsed. She needed to refresh her memory on one account through reference to her police statement. The recordings which she then listened and testified to throughout the balance of her testimony seemed to ground her recollections. It was obviously difficult for her to listen to the recordings. She appeared genuinely traumatized by the events of the relationship with Mr. B. and the conflict that occurred in the presence of her children. She was subdued throughout her testimony and looked and sounded exhausted.

[91] She answered questions without evasion or regard to where the answers would lead. Her testimony was balanced, and I did not detect any exaggeration or embellishment on her part. For example, when reviewing the photographs taken by police of the various bruises to her arms and legs, she readily volunteered that she was unsure whether certain of the injuries were, in fact, caused by Mr. B. While she could remember the incidents in issue, she also readily volunteered that her memory of some of the surrounding circumstances were “fuzzy”.

[92] She readily acknowledged her own role in the dysfunctional relationship and that she would strike out at Mr. B. and use vulgar language. She also noted that there were many times when they were consensually intimate and that there were times when the accused was caring and kind.

[93] She did not demonstrate any overt malice towards Mr. B., emotionally testifying that she loved him right up until the day she decided to leave him.

[94] There are nevertheless some serious inconsistencies which give the court concern about her truthfulness. The court heard that in the summer 2018, she was involved in child custody litigation with her former partner regarding parenting time. Her former partner, who previously worked with Mr. B., expressed concerns about Mr. B. He objected to Mr. B. living at D.R.’s apartment during her parenting time. In the summer 2018, D.R swore an affidavit wherein she challenged her former partner’s concerns. She described Mr. B. as a caring man and swore she would not put E.H. in danger. This is of course at odds with her trial testimony about Mr. B.’s alleged assaultive and abusive conduct during that time. She has now claimed in sworn testimony that he was either a “caring man” or a “monster” at the material times. D.R. readily acknowledged that she made this statement under oath. She explained that when she swore that statement, she loved him and believed he was a caring person. She was in an extremely abusive relationship and at that time, in her mind she thought their relationship was normal. She still thought he was a great person and there were moments when he was decent and kind.

[95] This inconsistency between her representations made under oath cannot be lightly discounted. However, I cautiously accept her explanation that at the time she swore the affidavit, she did believe Mr. B. was caring. It is internally consistent with her testimony about the state of their relationship, her efforts to please him and that she loved Mr. B. up until the day she left him on December 1, 2018.

[96] I have also considered whether D.R. has a motive to fabricate the allegations in order to gain an advantage in the child custody litigation. The court heard that she commenced court proceedings regarding their infant very shortly after she left the relationship. The defence questioned the sincerity of her explanation that she started the litigation so that Mr. B. could have parenting time. The defendant also noted D.R. was no stranger to this kind of litigation. She was already involved in proceedings with a former partner regarding her older daughter.

[97] I take no issue with an individual commencing family law litigation on the heels of the breakdown of a relationship. This is the norm. I agree with the defendant that it is unlikely she commenced the proceeding so she could generously share custody of their child with Mr. B. This representation on its own could be significant if there were other warning signs as to her reliability and credibility. However, my assessment of her evidence is that she commenced the litigation so that they could have some parameters on his parenting time, including whether it should be supervised, which the court heard continues to be the case at present. In the end, I find her credibility does not turn on this factor.

Relevance of Uncharged Conduct

[98] The frailties in the complainant’s evidence does lead me to the audio excerpts of the various arguments between Mr. B. and the complainant between September and December 2018 and which were a focus of much of the testimony.

[99] With the exception of some audio that was directly relevant to certain counts on the indictment, the remainder represented other incidents and conflict in the relationship for which Mr. B. is not charged.

[100] In R. v. J.H., 2020 ONCA 165, the Court of Appeal reminds us that evidence of uncharged disreputable conduct tendered by the Crown is generally, but not always, inadmissible. The general prohibition arises because of the moral and reasoning prejudice this evidence brings. Such evidence cannot be used as circumstantial proof of conduct. The rule against admissibility yields where the probative value exceeds its prejudicial effect. Evidence of uncharged disreputable conduct has often been used in prosecutions alleging assaultive behaviour in a domestic relationship for purposes such to form part of the narrative of the relevant events, to facilitate understanding of the nature of the relationship between the accused and complainant, to demonstrate the accused’s motive or animus for committing the offences, to explain the complainant’s failure to report the abuse or leave the relationship earlier: J.H., supra at paras 53-55.

[101] I am mindful that D.R. secretly recorded the accused, which gives concern that the recorded conflict was manufactured or provoked to put Mr. B. in a bad light. On its own, it is hard to understand rational reasons for a person to decide to secretly record their interactions with their intimate partner; however, it becomes easier to appreciate in the context where she did it in response to the accused first recording her within the confines of their relationship.

[102] I accept the recordings are relevant to understanding the nature of the relationship between Mr. B. and D.R. and how the events unfolded. It is not controversial that their relationship was dysfunctional and high conflict. The recordings are relevant and highly probative as they are contemporaneous to the period during which most of the offences were alleged to have occurred.

[103] I remain mindful that I must not use the recordings to help me conclude the offences charged likely took place because Mr. B. is a person of bad character or disposition who likely committed the offences charged because of that character or disposition. Further, I may not punish Mr. B. for that conduct by finding that the offences charged took place or that he is guilty of them simply because other things happened before. I am also cautioned that I may not use the evidence on one count to determine another count before this court.

[104] It is readily apparent from these recordings between September and December 2018 that Mr. B. was contemptuous of D.R. and verbally and emotionally abusive. He makes repeated belittling and demeaning comments about her appearance, tells her she is a pathological liar and that no one will believe her. He regularly taunts her about his possible infidelity, and his comments focus on her apparent duty to fulfill his sexual needs. When she protests at his comments, he threatens desertion or violence and tells her she has no way of proving anything to the police. He asserts confidence in controlling her. His animus or motive toward D.R. is manifest in these recordings. His statements during these recordings are consistent with D.R.’s testimony as to Mr. B.’s attitude and behaviour exhibited towards her at the time of the offences. His assertion that his three-month plan was to take his daughter away to a safer environment is preposterous.

[105] This evidence assists me in understanding the troubling nature of their relationship and is consistent with D.R.’s testimony. The contemporaneous recordings refute the concern about fabrication or her truthfulness. They tend to enhance her credibility on the material facts in issue and restore any concerns I may have about a motive to fabricate and the secret nature of her recordings.

[106] I acknowledge that these recordings may not fairly demonstrate D.R.’s own role in their dysfunctional relationship. However, the court heard that 10 hours of such recordings were retrieved and disclosed. The edited one hour of recordings was entered on consent. I was not taken to any other recording excerpt that may put the edited exchanges into a different understanding than what was heard in court.

[107] Furthermore, apart from when D.R. apparently rolled her eyes at the accused or threw his cellphone, there is no evidence or suggestion of her acting in a manner to stage or provoke Mr. B.’s outbursts for the purposes of recording their exchanges for an ulterior motive. In my view, these isolated actions by the complainant during an argument do not undermine her evidence as to the state of their relationship, Mr. B.’s behaviour towards her and that she feared him.

[108] I am satisfied that D.R.’s evidence is credible and reliable. I view Mr. B.’s evidence with caution for the reasons I have just explained.

[109] In conclusion, as to the credibility and reliability of the principal witnesses, I accept D.R.’s evidence and where it conflicts with the evidence of Mr. B., I prefer and accept it and reject Mr. B.’s evidence.

[110] With these key findings, I now turn to the offences.

The Essential Elements of the Offences

[111] I first note the essential elements for the offences in issue.

Assault

For assault the Crown must prove these essential elements beyond a reasonable doubt:

• First, That Mr. B. intentionally applied force to D.R.

• Second, That D.R. did not consent to the force that Mr. B. applied; and

• Third, That Mr. B. knew that D.R. did not consent to the force he applied.

Sexual Assault

[112] For sexual assault, the Crown must again prove beyond a reasonable doubt the essential elements I reviewed in respect of assault, with the additional element that the Crown must prove that the force Mr. B. applied took place in circumstances of a sexual nature.

Assault with a Weapon

[113] For assault with a weapon, the Crown must prove beyond a reasonable doubt the essential elements I just reviewed in respect of assault, with the additional element that a weapon was used in the assault of D.R.

Uttering Threats

[114] For uttering threats, the Crown must prove:

• First, that Mr. B. made a threat;

• Second, that the threat was to cause death to D.R.; and

• Third, that Mr. B.made the threat knowingly.

[115] I will now explain my determination in respect of each count.

Count 1 – Sexual Assault

[116] I found D.R. credible in her account of this incident. It was unembellished with dates or detail, which makes sense on her evidence as a whole. This encounter stood out for her in the history of their intimate relationship. She did not suggest that every encounter was forced. However, she was certain that she did not want to have sex and recalled the key details of being pushed onto the bed face down. I accept that the sexual contact occurred and that she did not consent to it. I also find that Mr. B. knew D.R. did not consent to the sexual contact. I reject Mr. B.’s assertion that they only had consensual sex. It is unworthy of belief. On the evidence that I do accept, I find the Crown has proven Count 1 beyond a reasonable doubt.

Count 2 – Assault With a Weapon

[117] There is no dispute this incident of Mr. B.’s cigarette touching the complainant’s arm occurred. The issue is Mr. B.’s intent. I reject his explanation of accidental touch as implausible and incredible on the whole of the evidence. While theoretically possible, it is at complete odds with D.R.’s description of the assault. There is undoubtedly a defined scar on her arm. I cannot speculate on the nature of the initial wound or healing time without expert assistance. However, D.R.’s description of the event is unshaken. On the whole of the evidence that I do accept, I find the Crown has proven Count 2 beyond a reasonable doubt.

Count 3- Assault

[118] At issue is whether the event ever happened. D.R.’s account of the assault by choking during her pregnancy was admittedly vague as to dates and surrounding events; however, she was clear in her description of the choking itself.

[119] Mr. B. baldly denied this incident. Therefore, any suggestion of consent or self-defence does not arise.

[120] On the whole of the evidence that I do accept, I find there was an incident of assault by choking as alleged on count 3 of the indictment. While D.R. could not be sure of the date, she knew she was pregnant, and she described Mr. B.’s hand over her mouth and nose in vivid detail. Mr. B.’s denial of the incident is not worthy of belief.

[121] I find the Crown has proven Count 3 beyond a reasonable doubt.

Count 4 – Sexual Assault

[122] This count concerns the allegation of sexual assault by way of forced anal intercourse. There is no dispute this act occurred. The issue is consent. D.R. claims the act was forced on her as punishment. Mr. B. claims there was consent.

[123] Based upon my assessment of the evidence as a whole and with regard to my assessment of D.R.’s credibility I find that she did not subjectively consent to the sexual act.

[124] The remaining issue is whether there was consent or an honest but mistaken belief in communicated consent.

[125] There is no air of reality the defendant’s positions on this count. I do not accept that either consent or an honest but mistaken belief in communicated consent arises on this evidence.

[126] The accused and complainant agree the act occurred and that he stated words to the effect of: “I’m almost done babe” towards the conclusion of the act. However, their accounts on how that act occurred are diametrically opposed. Mr. B. testified to an agreement earlier in the day where as D.R. described an attack. There is no situation of ambiguity in their evidence as to what happened wherein I can plausibly entertain there was an honest but mistaken belief in consent.

[127] In any event, I do not accept his account that he and D.R. ever had a conversation wherein they agreed to have anal intercourse later that night. I also note this proposition was not put to D.R. in cross examination, which affects the weight I give to the assertion. In all the circumstances I find his testimony on this point unworthy of belief.

[128] Mr. B.’s assertion of the “earlier mutual agreement”, does not acquit him of criminal responsibility for the act. An agreement to have sexual activity at a future time is not consent: s. 273.1(1.1). The law is clear that consent must be present at the time the sexual activity in question takes place. By his own admission, Mr. B. had no further discussion with D.R. about having anal sex apart from his unsupported evidence of a conversation with the complainant earlier in the day. Even if that conversation took place, which I find it did not, he took no reasonable steps to ascertain she was consenting to the sexual act at the time.

[129] Based upon my credibility assessment, I reject Mr. B.’s account of a discussion with D.R. about engaging in anal sex later that evening and his description of the act. There is no air of reality to his account of a planned assignation for anal sex in the context of their relationship. I find the act happened in the manner described by D.R.

[130] I find the Crown has proven Count 4 beyond a reasonable doubt.

Count 5 – Sexual Assault

[131] This count involves the allegation of unwanted vaginal touching. The material issue is whether it happened. Mr. B. denied this incident. If I find it occurred, the essential elements are not in doubt. This turns on my assessment of the principal parties’ credibility.

[132] D.R. was clear in her description of the incident. She identified injuries from the incident in the photographs. Mr. B. acknowledged the bruises could have come from holding her. I reject Mr. B.’s bald denial of the assault as unworthy of belief for the reasons previously stated. D.R.’s account is consistent with the whole of her evidence and is unshaken.

[133] I find the Crown has proven Count 5 beyond a reasonable doubt.

Count 6 – Assault

[134] This count involves the allegations of spitting and choking on or about November 29, 2018. The evidence at trial identified the choking incident occurred on December 1, 2018. In closing argument, the Crown submitted the choking on this date could be addressed in Count 3. Procedural issues aside, I deal with the substantive findings now.

[135] There is no doubt Mr. B. spat on November 29, 2018. It is heard on the audio, and he admits same at the date and time. He claims it was either by accident or that it landed on the floor. D.R. testified it landed on her. This is supported by the audio, where we hear a noise consistent with him expectorating and then her immediate exclamation in disgust that he spat on her.

[136] I reject Mr. B.’s evidence that he either accidentally spat on D.R. or that his spit landed on the floor. His explanations are internally inconsistent and ridiculous. Accidental expectoration is also inconsistent with what is heard on the audio. The spittle assault arises when they are struggling on the balcony. He tells her she is a “worthless piece of shit” and she asks him to let her go inside. We then hear the act of spitting and her immediate utterance in reaction. His spit hit her as intended. his is consistent with her testimony.

[137] I will deal with the second incident of choking under this count. This relates to the choking on or about December 1, 2018. Mr. B. admits the act occurred and again, we hear her exclamation on the audio that his hands are on her neck. The issue is his intent. I am unconvinced by his description of an accidental choking of the complainant that occurred during either a consensual struggle or in self-defence. I find his explanation to be implausible and inconsistent with what is heard on the audio recording. I prefer the complainant’s testimony, for the reasons previously explained.

[138] I find the Crown has proven Count 6 beyond a reasonable doubt.

Count 7 – Uttering Threats

[139] There is no dispute that Mr. B. told D.R. that if she called the cops, he would kill her. He admitted saying it. She testified it scared her. I have no reason to doubt her fear. This is consistent with the contemporaneous conflict, threats and fear we hear on the recordings.

[140] His explanation is that it was no more than a “figure of speech”. This explanation barely merits comment.

[141] The plain and ordinary meaning of the words he used would cause concern. But the recordings further support that a reasonable person in D.R.’s position, in an admitted toxic relationship, would take those words seriously as a threat. The court heard Mr. B.’s hostility towards D.R. and his menacing tone in contemporaneous recordings. D.R. testified in a compelling way about her fear. Her description of her fear is consistent with the contemporaneous recordings that demonstrate her terror. She reached out for help to the women’s shelter shortly after hearing the threat. I reject Mr. B.’s explanation that this was no more than a “figure of speech”. I find that on all the evidence he knowingly intended to intimidate the complainant.

[142] I find the Crown has proven Count 7 beyond a reasonable doubt.

[143] For the foregoing reasons, on all of the evidence that I do accept, I find Mr. B.B. guilty on all counts of this indictment.

Justice K.C. Tranquilli

Released: July 14, 2022

COURT FILE NO.: CR-20-71

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

B.B.

REASONS FOR JUDGMENT

Justice K.A. Tranquilli

Released: July 14, 2022