Warning

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-21-15570

DATE: 20220727

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRENT LECLERC

Defendant

M. Newhouse, for the Crown

J. Couse, for the Defendant

HEARD: July 18, 19, 2022

Justice verner

[1] Brent Leclerc is charged with sexually assaulting the complainant N.L. on October 4, 2019. N.L., her sister-in-law M.P. and two police officers testified for the Crown. Leclerc testified for the defence.

The Complainant’s Evidence

[2] According to the complainant, she met Leclerc on a dating website called Plenty of Fish at the end of September, 2019. At that time, she was living with her daughter in the basement of her daughter’s father’s home. She was living there temporarily, as she had just come out of a long term relationship a couple weeks earlier. It had been a serious relationship. She felt that she had raised her ex-boyfriends’ boys, and referred to them as her step-sons.

[3] The complainant felt that she immediately had a good connection with Leclerc and they were communicating several times a day. They eventually made plans to meet on October 4, 2019. They planned to meet at the complainant’s home, have a hot tub in her back yard and “see how things went”. They discussed the possibility of engaging in several different sexual acts. She was unsure at the time of trial which sexual acts they had expressly considered, but agreed they possibly discussed “oral on her” (cunnilingus), “oral on him” (fellatio) and intercourse.

[4] The complainant’s sister-in-law M.P. testified that she warned the complainant against inviting a man she had never met to her place, at night, when no one else was home. Despite the warnings, the complainant insisted that everything would be alright. However, she agreed that if she had any issues she would text the word “eggs” to M.P. and her daughter. They were to call her immediately if they saw such a text.

[5] On October 4, 2019, Leclerc kept on pushing back the time of their meeting. It seemed as though the complainant feared he might cancel. He eventually arrived at the complainant’s place between 10:00 and 11:00 pm. She met him in a t-shirt and shorts, which is what she intended on wearing in the hot tub. He had on jeans and a t-shirt or a tank top. They hugged each other, gave each other kisses on the cheek and she agreed that she may have told him he was a good looking man.

[6] They went downstairs to her daughter’s basement apartment sat on the loveseat for a bit and then decided to have a smoke by the patio doors. While they were smoking, he mentioned that he had been doing crack for three days straight. He asked her if she did crack. She told him that she only smoked “weed”, but that years earlier she had tried cocaine with a former boyfriend. At some point, Leclerc asked if he could strip down to his boxers as the apartment was very hot. She had no concerns with his taking off his shirt and pants at that point, especially since they still planned on having a hot tub.

[7] After having a cigarette, they sat down on the loveseat again. She sat sideways, with one leg under her and one leg on the floor. In her words, they “were kinda facing each other so that [they] were able to kiss”. They talked for a while and then he started to kiss her on the mouth.

[8] He kissed her neck and then, on the mouth again. She did not like the taste of his kisses and told him to stop. He ignored her request and kept kissing. She testified that she is a little confused as to how the next steps happened, as they happened so quickly. But the next thing she knew was that he was kneeling on a cushion on the ground, he had taken off her shorts, shoved her legs open wide and was digitally penetrating her vagina and was giving her oral sex. She repeatedly told him to stop. He ignored her protests.

[9] He then grabbed her lose hair and brought her head towards him and shoved his penis in her mouth. He then swung her head back against the couch so hard that she “blacked out”, or became less coherent for a while. She is not sure how much time she lost during her “black out” or state of incoherence. The next thing she knew is that he was giving her oral sex again.

[10] She remembers just wishing it would end and that the dog, who was upstairs, would come downstairs and attack Leclerc.

[11] At one point, while he was forcing oral sex, his phone rang. According to the complainant’s testimony in-chief, he immediately got up to answer it and went out to the patio to talk. In cross-examination, the complainant suggested that after he answered the phone, he went to the washroom before he went to the patio. In either case, when he went to the patio, she went to the washroom and texted M.P. and her daughter the code word, “eggs”. M.P. called her back. According to M.P., the complainant asked her to call her recent ex-boyfriend. M.P. did not believe that was such a good idea and thought that the complainant should instead be focused on reporting the assault to police and letting her daughter know what was going on. Despite her reservations, M.P. complied with the complainant’s request and called the ex-boyfriend. According to M.P., the boyfriend did not care whether the complainant had been harmed.

[12] After the complainant spoke to M.P., she told Leclerc that her sister-in-law had heart issues and that she needed to leave and go to the hospital immediately, so he would have to leave as well. As he left, he asked her where the nearest bus stop was and asked her to contact him later and let him know how her sister-in-law was doing. She thought it was “ballsy” that he would ask her to call him.

[13] He then left.

[14] After Leclerc left, the complainant noted a condom on the table. The condom wrapper looked identical to a stack of condoms that the complainant and her daughter kept in their living room. However, the complainant was confident that the opened wrapper had not come from that stack, because her daughter always used an even number of condoms and she could tell from the stack of condoms, that only an even number had been used.

[15] The complainant called M.P. back and talked to her a second time. M.P. and her husband insisted that the complainant contact police. In fact, according to the complainant’s evidence, if she was not going to contact the police, they were going to do it for her. She called 911 and two police officers arrived within minutes of her call. She gave them brief statements and then was taken to hospital by ambulance.

[16] At the hospital, a nurse in the sex assault clinic did an hour long examination of her body. The nurse did not testify, but her notes were admitted as part of an agreed statement of fact. The nurse noted bruises on the front of the complainant’s legs above the knees and noted tenderness at the back of her head. The nurse expressly added to the form she filled out, in her own handwriting, “no visible injury”, beside the back of the complainant’s head. At trial, the complainant testified that she had bruises on her inner thighs, which she specified were the result of Leclerc ‘pushing her legs apart’ and a bump on the back of her head. When the complainant was cross-examined on her injuries, she quickly admitted she had little memory of the bruises, but steadfastly maintained that she had a bump on her head.

[17] When the complainant returned home from the hospital, she learned her daughter had found a condom in the toilet.

M.P.’s Evidence

[18] The first person the complainant talked to after the encounter was her sister-in-law M.P.. M.P. testified that at the time of the allegations, she was quite close with the complainant. According to M.P., the complainant was “upset” and “distraught” on the phone on October 4, 2019. She testified that she was initially skeptical of the veracity of the allegations. Although she was reluctant to explain what she meant, it is apparent that she thought the complainant may have been exaggerating. When she gave her statement to police, she offered that she did not fully trust the complainant. The only example she gave at trial as to why she believed the complainant was untrustworthy, was that she believed that years earlier the complainant falsely claimed to be pregnant (there was no admissible evidence before me to support the truth of that belief).

[19] Although M.P. was initially skeptical about the allegations, she testified that her opinion changed over time, such that by the time of trial, she was no longer skeptical. She now believes the complainant was assaulted.

The 911 Call

[20] Part of the 911 call was played during the trial. The complainant was clearly upset, even hysterical on the 911 call. She was sobbing as she was talking to the point that it was difficult to ascertain what she said.

[21] After listening to a portion of the call in court, the complainant confirmed that she said that (1) Leclerc told her he had been doing crack for three days straight, (2) she asked him to leave and then (3) he attacked her and (4) ripped her clothes off. It was not completely clear from the statement itself that she was suggesting that those four things happened in that order, one after the other. However, she seemingly agreed in cross-examination that that is indeed what she meant to convey on the phone. She explained to the court that she simply got the sequence of events wrong when she was speaking to the 911 operator.

[22] In particular, she denied asking Leclerc to leave after he told her he had been doing crack for three days. Instead, she said she did not ask him to leave until the end of the evening. Furthermore, on her evidence, he did not attack her after she asked him to leave, but before.

Officer Giguere

[23] The first officer on scene was a male officer, Police Constable Giguere. When he arrived there was a cushion on the ground in front of the love seat. It had the complainant’s shorts laid out across it.

[24] Giguere testified that the complainant gave him a very brief outline of what happened and he did not take notes until hours after he spoke to her. However, he did have an independent recollection of their conversation. He notably remembered at trial, although it was not in his notes, that she used the terms “pussy” and “eating me out” in her description of the assault.

[25] He testified that according to her version of events, she saw Leclerc put a new condom on, while she was telling him “no”. After hearing this story, the officer went into the washroom looking for the condom and found it in the toilet. He seized it at that point. Giguere further testified that the complainant mentioned that Leclerc forced cunnilingus on her, but she did not mention that Leclerc put his penis in her mouth. Nor did she mention any injury to her head.

Officer Hartry

[26] The second officer on scene was female officer, Police Constable Hartry. She similarly took a very brief statement from the complainant and did not record it in any form until hours after the statement was given. Unlike officer Giguere, officer Hartry had no independent recollection of the conversation.

[27] She testified with the assistance of her notes that the complainant told her that Leclerc kissed her “suddenly” and that she “did not want him to kiss her”. She also testified that according to the complainant the assault ended abruptly because he had to pee. According to the complainant’s statement to Hartry, Leclerc went to the washroom and left immediately after he got out of the washroom. There was no suggestion that he got a phone call.

The DNA evidence

[28] DNA evidence was admitted through an agreed statement of fact. It revealed that saliva was present in a large area of the crotch of the complainant’s underwear. Within that large stain, the experts found traces of DNA from both the complainant and the accused. In light of the evidence as a whole, it is apparent that the complainant put her underwear on after Leclerc left, at which time fluids, including saliva, transferred from her vagina to her underwear.

Brent Leclerc

[29] In his testimony, Brent Leclerc confirmed that he met the complainant at the end of September, 2019 on the dating website known as Plenty of Fish. At that point, Leclerc, who had a minor unrelated criminal record, was admittedly addicted to crack cocaine and was consuming daily.

[30] Leclerc testified that after he met the complainant online, they communicated once or twice a day. He agreed they planned to meet up, have a hot tub and see where things went. They discussed the possibility of cunnilingus, fellatio and intercourse and exchanged explicit photos. She sent him photos of her breasts and thighs and he sent photos of his penis. She was one of several women he was communicating with through the Plenty of Fish app at that time.

[31] He testified that on October 4, 2019, she contacted him at close to 9:00 pm and asked him to come over. He had not consumed any drugs that day, the only intoxicants he had had were two bottles of beer at lunch time. He packed underwear and a toothbrush in a bag and was going to take the bus to her place, when his friend unexpectedly stopped by. He asked his friend whether he would be willing to drive him (Leclerc) to the complainant’s house, which was approximately a 10 minute drive away. They did not leave his residence until after 10:00 pm. Between 9 and 10 pm, Leclerc got multiple messages from the complainant about whether he was going to come over.

[32] When he arrived, the complainant greeted him at the door. She told him he was attractive and they kissed each other on the cheek. She led him down to the basement. She sat down on the loveseat and he asked if they could go outside for a cigarette. While they were outside, he asked if she consumed crack. She responded no, that she had tried cocaine with an ex-boyfriend years ago, but that now she only consumes “weed”. When they came back inside, the complainant sat on the loveseat again. She sat in such a way that there was not enough room for him to sit comfortably beside her, so he grabbed a cushion and sat on the floor. She summonsed him up onto the couch, in a way that led him to believe she was asking for him to come close to her, so they could be intimate.

[33] He got up on the couch and he kissed her on the lips and on the neck. They then touched each other’s genitals, while still clothed. She took off her shorts. He licked his fingers, rubbed her vagina and digitally penetrated her. She then went and got a condom. He thought to himself “oh boy”. He did not expect it to go that far that quickly. He was not interested in having intercourse, but did not want to embarrass her. He opened up the condom package, took out the condom and put it on. Although he was successful in putting it on, he knew it “was not going to work”. He suggested that they take a break and “regroup”. He went to the washroom, removed the condom and disposed of it in the toilet. He tried to flush the toilet, but it would not flush. The two of them then went out for a cigarette. While they were on the patio together, he got a call from another woman from Plenty of Fish, who he had “hooked up” with the night before. He answered the call and talked to her in front of the complainant. His conversation was such that the complainant could have figured out from his end of the conversation alone, that he was talking to another woman.

[34] The complainant left him alone after 20 seconds or so and went to the bathroom. When she came out of the bathroom, she told Leclerc that a family member was in the hospital and she had to leave. He felt relieved. She walked him to the front door. They gave each other kisses on the cheek and he agreed that to be polite he may have invited her to call him for a rain check.

[35] He was arrested before he left her neighbourhood.

The Proper Test to Apply

[36] This is a he said/she said situation, where both the complainant and the accused testified that there was a sexual encounter, but he says it was consensual and she says it was not. My job is not to assess who is telling the truth and who is lying. My task is to assess whether the Crown has proven the allegations beyond a reasonable doubt. Given the seriousness of a criminal conviction, this is not an easy threshold for the Crown to meet. Our system is built on the idea that it is better that a guilty person go free than that an innocent person be convicted of a crime.

[37] Obviously, if I believe the accused, I must find him not guilty. What is less obvious is that if I disbelieve him, his evidence, when considered with the evidence as a whole, may still raise a reasonable doubt, in which case I must also find him not guilty. And finally, even if I disbelieve him and I find that his evidence does not raise a reasonable doubt, I still must consider whether the Crown has proven the allegations beyond a reasonable doubt, or in the context of this case, consider whether the complainant’s evidence leaves no reasonable doubt as to the accused’s guilt (R. v. W. (D.) 1991 CanLII 93 (SCC), [1991], 1 S.C.R. 742).

[38] I might find that the complainant is probably telling the truth and at the same time find the accused is completely unbelievable. If that is all I can say at the end of the day, I must find him not guilty. A finding that he is probably guilty is insufficient to meet the proof beyond a reasonable doubt threshold. On the other hand, I should be clear that the Crown does not have to prove the allegations to an absolute certainty. That would be essentially impossible in a he said/she said case. However, the Crown’s burden is much closer to an absolute certainty, than it is to a balance of probabilities (R. v. Starr, 2000 SCC 40 at para. 242).

[39] The question is whether the Crown has met its onus in this case.

Analysis

[40] The complainant gave a generally credible version of events.

[41] Her candour with respect to embarrassing aspects of her evidence that arguably were harmful to the Crown’s case - such as agreeing to possibly engaging in sexual activity with a stranger, inviting a male stranger into her home when she is alone, and having no concerns about him stripping down to his boxers within minutes of meeting him- adds to her credibility. [1]

[42] Some of her evidence was corroborated. Most significantly, the DNA evidence on her underwear was consistent with her evidence that he forced cunnilingus.

[43] I further note that it is apparent from the 911 recording that the complainant was upset, even hysterical when she called authorities within minutes of the encounter. I recognize that I can rely on her demeanour as further corroborative evidence (R. v. J.A., 2011 SCC 17 at paras. 40-41). However, the caselaw warns triers against putting too much emphasis on demeanour. The triers do not know the parties involved and thus, do not know how they would react in different situations. Notably, the one witness in this case who does know the complainant and in fact was able to observe the complainant’s demeanour after the assault firsthand, was the complainant’s sister-in-law M.P., who was initially skeptical of the veracity of the allegations. In other words, the one person who was familiar with how the complainant reacts to different situations, did not find that her reaction to this event was particularly persuasive evidence that it happened. I therefore do not put much weight on the complainant’s demeanour.

[44] Leclerc’s testimony in chief was more-or-less credible. However, his credibly fell apart in cross-examination. I agree with Crown counsel that he was argumentative, combative and at times indifferent as to the truth. He became vague when faced with difficult questions even on central issues. At times, he refused to agree to the obvious. And he directly contradicted himself in some areas.

[45] I further find that Leclerc gave false evidence at least on the issue of whether he believed, before he arrived at the complainant’s apartment, whether sex was a possibility. He was inconsistent in that at times he suggested that he was hopeful it may happen and at other times he said it was not even a possibility – and that is why he did not bring a condom with him. Moreover, his evidence on this issue flies in the face of common sense. He admittedly met the complainant on what he described as a “hook up” website (understanding that “hook up” has a sexual connotation), his communication with her had admittedly included an explicit description of what they might do with each other sexually when they met, they exchanged sexually explicit photos and he had packed and brought a bag with clean underwear and a toothbrush to her place that evening. There is no question in my mind that he knew there was a possibility of intercourse before he went there and therefore, his attempt to explain that he did not bring a condom because sex was not a possibility, is unbelievable.

[46] The Crown further suggests that there is evidence of a prior inconsistent statement. Leclerc was adamant that he did not tell officer McKenzie that he went to the bathroom to put the condom on. However, according to officer McKenzie’s notes (the officer did not testify, but his notes went into evidence as part of an agreed statement of fact), Leclerc said exactly that. I find that it is quite possible that Leclerc told the officer that he went to the bathroom to take the condom off, rather than put it on, and the officer either misheard him, or made a seemingly minor error in his notes. Notably, the officer recorded his notes hours after he spoke to Leclerc and he had no independent recollection of the conversation by the time of trial. Crown counsel herself conceded that officer McKenzie quite possibly made an error. I give little weight to this inconsistency.

[47] Despite the fact that I find Leclerc lied to the court, I still may accept other parts of his evidence, although I should be somewhat cautious in doing so. I note that his evidence was anything but rehearsed. In fact, it was apparent that he had not spent much time thinking about what he was going to say in court. And despite his lack of deliberation over his evidence, his version of events with respect to the sexual encounter itself has a ring of truth and is corroborated to a certain extent. Much of his version overlaps with that of the complainant and is consistent with the layout of the apartment and the contents inside. The fact the condom wrapper was in the living room and the condom was in the toilet, is explained by his version of events and not explained by hers. The fact the cushion was on the floor with the shorts on top of it, makes sense with respect to his version that he was sitting on the cushion before she took off her shorts and not after. Whereas her version that he took off her shorts and put them on the cushion either immediately before he sat on the cushion, or while in fact he was sitting on the cushion (it is unclear from her version which is the case) seems unlikely.

[48] Thus, although I find Leclerc lied, I do find that his version of the sexual encounter has a ring truth. Before I consider whether it raises a reasonable doubt, I will first consider the strengths of the Crown’s case.

[49] I have already noted some of the reasons why I should find the complainant is telling the truth. Perhaps most importantly, her version of events is corroborated by the DNA. Although it may be said that the DNA evidence is more consistent with the complainant’s version of events, it cannot be said to be inconsistent with the version of Leclerc. In other words, the DNA evidence is far from conclusive.

[50] Although the complainant’s testimony has its strengths, the defence has suggested it has a number of weaknesses. Some of the alleged weaknesses rely on what she – according to the defence theory – failed to mention to officers Hartry and Giguere or to the 911 operator. I put no weight on what she possibly failed to say immediately after the assault. She was very upset and unclear in her thinking at that time; and with respect to the officers, she gave them very brief outlines of what happened; and they did not make any notes about her statements until hours after hearing what she had to say. I therefore do no put any weight on any possible omissions from her initial statements.

[51] However, I do accept that there were some issues with her evidence. First of all, even if her evidence was entirely credible, there were clearly reliability issues. For example:

(1) She testified that she was confused as to what happened and how it happened from the point they were kissing to the point he was on the floor digitally penetrating her and forcing cunnilingus. She explained that things happened so quickly.

(2) She testified that when she hit her head she “blacked out” and lost time, such that there is a portion of the assault that she has no memory of. She also described her mental state as being less coherent after she hit her head.

(3) Her memory of the encounter is impacted to the extent that she cannot say with certainty that there was no intercourse.

[52] These pieces of evidence raise serious concerns with her reliability.

[53] Furthermore, her evidence at large suffered from the following weaknesses:

(1) Her version of events does not explain when the condom wrapper was opened.

(2) Her version of events does not explain how the condom could have gotten into the toilet. Her evidence was that the assault, and more precisely the forced cunnilingus, ended abruptly when he got a phone call and went to the bathroom to take the call. It is difficult to understand where the condom supposedly was at the time he was forcing cunnilingus and got this phone call, such that he took the condom into the bathroom and disposed of it in there. If he was putting on the condom for intercourse at the time he was forcing cunnilingus, it is somewhat surprising that he would have answered a phone call.

(3) Officer Giguere testified that in contrast with the complainant’s testimony, she told him that she saw Leclerc putting on the condom. Although Giguere made his notes hours after he spoke with the complainant, he testified that he had an independent recollection of her telling him that she saw him put on the condom. And it was that part of her version of events that informed his decision to look in the washroom in the first place. I find Giguere’s evidence on this issue reliable.

(4) The complainant testified that at the beginning of the night they were sitting on the couch “kinda facing each other so that [they] were able to kiss”. Her evidence implied that she had kissing him in mind when she positioned herself on the couch. Yet according to officer Hartrey, the complainant suggested that the kiss was completely unexpected. In particular, Hartry testified that the complainant said that the assault started when he “suddenly” kissed her and she “did not want him to kiss her”. (I acknowledge that Hartry made her notes hours after speaking to the complainant and for that reason do not make much of the omissions in her notes. However, I do give weight to the details that Hartry included in her notes, as Hartry testified she understood the importance of only including accurate information.)

(5) The complainant told the 911 operator that after she asked Leclerc to leave, he attacked her and ripped off her clothes. According to her version before me, he attacked her and ripped off her clothes well before he asked him to leave.

(6) The complainant was inconsistent on why and how the encounter ended. She testified in chief that he only stopped when he got a phone call and took that phone call outside. In cross-examination, she changed her version such that he got a phone call, went to the washroom and then went outside. And she told officer Hartry that it ended when he had to pee and then left her apartment immediately from the washroom, without mention of a phone call.

(7) The complainant testified that there was a bump on her head and after an hour long examination by a nurse, the only notation was of “tenderness” in that location. The nurse explicitly noted there was “no visible injury” to the back of the head.

[54] The defence also raised the possibility that there was a motive to fabricate. To be clear, the accused never has to prove a motive to fabricate, but if there is evidence that she had a motive that may be germane to her credibility (R. v. Batte, 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449 (Ont.C.A.) at para. 120). The defence alleges that she fabricated the assault as a result of feeling ashamed and rejected since, according to the defence theory, she was excited about the possibility of having a night of sex with Leclerc, and after things progressed in that direction she went and got a condom. But to her dismay, instead of engaging in intercourse with her, Leclerc abruptly ended their sexual encounter and then right in front of her took a call from another woman he had “hooked up” with the night before. Although this is possibly a motive to fabricate, I find that it is not strong evidence of a motive.

Conclusion

[55] In summary, I have real troubles with Leclerc’s credibility. I in fact find that he lied to the court. On the other hand, I find that his version of events has an air of reality to it, when considered in the context of the evidence as a whole.

[56] More importantly, although I found the complainant’s version of events believable, there were serious issues with both her reliability and credibility. There were issues with her evidence as to how the assault began, as well as with how it ended. And she herself admitted that she was confused and unsure of what happened in between the beginning and end because things happened so quickly, to the extent that she could not say with certainty that there was no intercourse.

[57] I simply do not know what happened in the complainant’s apartment on October 4, 2019. More precisely, I do not know whether the complainant consented. Accordingly, I must find Leclerc not guilty on the one count that is before me.

Justice C. Verner

Released: July 27, 2022

COURT FILE NO.: CR-21-15570

DATE: 20220727

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BRENT LECLERC

Defendant

REASONS FOR JUDGMENT

Justice C. Verner

Released: July 27, 2022

[1] To clarify, I am not relying on her evidence about being excited about sex with a stranger to find her less worthy of belief, which would be one of the twin myths. In fact my reasoning is arguably the opposite, in that I am relying on her candour about being excited about sex with Leclerc, which is somewhat harmful to the Crown’s position, to bolster her credibility.