I. The Charge

[1] J.D. is charged with one offence – that he sexually assaulted E.S., contrary to section 271 of the Criminal Code.

[2] The complainant is the niece of J.D.’s wife. The complainant was 23 years old at the time of the trial. She was a young adult at the time of the alleged offence, 18 years old. The alleged incident took place at the home of J.D. and the complainant’s aunt, K.S.

II. The Trial

[3] J.D. was tried by this Court, without a jury, in-person, over several days. Identity, date, and jurisdiction were all not contested by the defence. The defence presented evidence at trial, including testimony from the accused.

III. The Issue

[4] There is one major issue – did the accused do it? Did he touch E.S., without her consent, in a sexual manner?

[5] There are sub-issues, and there is more than one alleged act of sexual touching.

[6] The accused admits that he touched the complainant’s breast, but there are consent questions that arise with regard to that sexual touching.

[7] The accused outright denies that he digitally penetrated the complainant’s vagina.

IV. Our Criminal Justice System in Canada

[8] Criminal trials are not decided by simply comparing versions of events and picking one. And criminal trials are not decided on the basis of what probably or likely occurred.

[9] J.D. is presumed to be innocent of what he is charged with. He has no burden to prove or to establish or to present evidence in support of anything. The burden of proof rests exclusively with the Crown.

[10] The requisite standard of proof is significantly higher than proof of likely or probable guilt. It is to prove the guilt of J.D. beyond a reasonable doubt. Not to a degree of absolute certainty, but to a degree of sureness. This Court must be sure of the guilt of J.D. before finding him guilty.

[11] Proof beyond a reasonable doubt is a high threshold. It is much closer to proof to a degree of absolute certainty than it is to proof on a balance of probabilities.

[12] J.D. testified in this case. To the extent that his evidence is found to be exculpatory, if that evidence is accepted, then J.D. must be acquitted. If that evidence is not really believed but still results in this Court being left with a reasonable doubt, then J.D. must be acquitted. If that evidence is rejected to a degree that it, whether alone or in conjunction with other evidence at trial, does not leave this Court with a reasonable doubt, then a finding of guilt is not the inevitable result. J.D. would still be entitled to an acquittal unless, on the basis of the evidence at trial that is accepted, the Court is convinced beyond a reasonable doubt of the guilt of the accused.

V. What Happened in the Living Room on the Date in Question, according to the Complainant and the Accused

[13] This Court has the benefit of its notes taken during the trial and complete transcripts of the trial evidence, which transcripts must have been ordered by counsel. I have reviewed the transcripts where necessary to confirm the accuracy of my notes.

Examination-in-chief of the Complainant: What Precipitated the Alleged Sexual Touching

[14] On the alleged offence date, in December 2018, the complainant and the accused and other family members celebrated the complainant’s father’s birthday by getting together at a pizza place.

[15] After the gathering, the complainant accompanied the accused and his family (the complainant’s aunt and J.D. and his wife’s two children) back to the home of the accused’s family.

[16] According to the complainant, she and the accused went alone to the grocery store to get some snacks. In the parking lot, J.D. said to her that it would not be appropriate for them to date at that time, because of their age difference, but they could date in about ten years. That made her uncomfortable. She responded to him that them dating would never be appropriate.

[17] Once back at the house, the family watched something on the television in the living room. The two young children went to bed. The aunt fell asleep and was then brought upstairs by J.D. The complainant took her medications and changed into her pajamas.

[18] The medications that the complainant took were all prescribed for her. She took a Lamotrigine pill, 150 milligrams. She took a Clonazepam pill, 1 milligram. She took a Seroquel pill, 50 milligrams.

[19] She testified that Lamotrigine has no affect on her in terms of drowsiness. She stated that Clonazepam makes her drowsy between one and three or four hours after taking it. She said that Seroquel makes her drowsy one hour or more after taking it.

[20] When the accused returned to the living room, the two of them chose something to watch on the television. She was on the couch. He was on the love seat. She stated that J.D. pushed the love seat and the ottoman over to sort of connect the love seat to the couch.

Examination-in-chief of the Complainant: the Alleged Touching, and then the Alleged Sexual Touching

[21] According to the complainant, the accused started “caressing” her arm. She had old scars and marks on that arm, from prior incident(s) of self-cutting.

[22] He then “traced” her lower stomach, on her bare skin, with his hand. That made her uncomfortable. She did not consent to that. He did not ask for her permission to do that, she stated.

[23] He then moved his hand to just under her breasts, without her consent and without asking for her permission, she testified.

[24] He asked if she was uncomfortable. She said “no”. She was in shock and did not know how to react, she said.

[25] He touched her breast, without her consent and without asking for her permission, she stated. He first touched her breast lightly, and then he applied more pressure and grabbed it more firmly.

[26] She testified that she closed her eyes to “eliminate [herself] from that situation”. He asked if she was awake. She opened her eyes and said “yes”, and then she said that she was going outside for a smoke. He asked if she wanted company. She said she didn’t care. They went outside. She had a cigarette. They went back inside to the living room.

[27] The complainant testified that she took off her pants and went back to the couch. She was wearing shorts and a t-shirt. She stated that she did not go upstairs because she was worried about the accused’s reaction.

[28] They took the same places in the living room that they had occupied before going outside. She was feeling “a little bit drowsy”.

[29] According to the complainant, J.D. started “caressing” her arm again. Then back down to her bare stomach area. Then to the bare skin on her inner thigh, all without her consent and without asking for her permission.

[30] She dozed off, she said. When she woke up, he was “fingering” her vagina. Her shorts had been moved to the side. She was “terrified” and “shocked”. She did not consent to that. He did not ask her permission to do that, she stated.

[31] At this point in her trial testimony, the complainant was crying in the courtroom.

[32] The complainant testified that she just froze and kept her eyes closed. He continued the digital penetration of her vagina for at least five minutes. When she moved her body to face the back of the couch, he stopped. He moved the furniture back to where it was, he seemed to be mad, and he went upstairs.

[33] The complainant immediately messaged her friend, T., and her friend picked her up one street over from the house at about 1:00 or 1:30 a.m. Exhibit 3 includes at least some of the Snapchat messages that were exchanged between the complainant and her friend.

Cross-examination of the Complainant

[34] In cross-examination at trial, the complainant denied that she touched J.D.’s thigh at the pizza place. She stated that the discussion she described the two of them having in the parking lot of the grocery store might have happened during the drive back from the store to the house. She disagreed with the suggestion by defence counsel that the discussion about age difference was a general one and not related to the two of them specifically.

[35] In cross-examination, the complainant stated that she takes the three medications to stabilize her mood, to treat her anxiety, and as a sleeping aid. She had been taking all three medications for several years before the evening in question. The Lamotrigine had no effect on her that evening. The Clonazepam might have affected her, and if it did it would have caused her some drowsiness. The Seroquel caused her some drowsiness that evening, she testified. None of the medications affected her behavioural inhibitions that evening, she said.

[36] The defence asked a series of questions in cross-examination as follows:

is it possible that the medications affected her perception of events that evening – she answered “no”;
is it possible that the medications affected her recollection of events that evening – she answered “no”;
is it possible that the medications affected her sexual interest or readiness or willingness that evening – she answered “no”.

[37] The complainant testified in cross-examination that the medications, generally, affect her level of alertness. They make her tired and drowsy. Her memory is affected during the periods before and after falling asleep. Her memory is “uncertain” at those times, including on the evening in question.

[38] The complainant agreed in cross-examination that she could have simply went upstairs if something that J.D. did/said made her uncomfortable.

[39] The complainant denied in cross-examination that she held J.D.’s hand while she was on the couch and while he was on the love seat.

[40] In cross-examination, the complainant testified that the caressing of her arm did not bother her. When he caressed her stomach in a “soothing manner”, however, she did not enjoy it.

[41] Arguably, the complainant had some difficulty at trial, in cross-examination, pinpointing when it was that J.D. asked her if she felt uncomfortable. Defence counsel asked if, “as” he touched her breasts, he asked her that question. She answered in the negative, and she stated that he asked her that question when he was touching under her breasts. It was pointed out by defence counsel that the said evidence at trial was inconsistent with her testimony at the preliminary inquiry, which inconsistency this Court agrees exists. When the Court asked a question for clarification, the complainant stated that the accused asked her that question as he was touching her breasts.

[42] In cross-examination at trial, the complainant testified that the accused touched her breasts for five or ten minutes or so. During that time, she did nothing and said nothing to stop it or to express her displeasure about it.

[43] In cross-examination, the complainant denied that the accused asked to share her cigarette outside.

[44] Defence counsel asked the complainant why she did not sit somewhere else after the smoke outside, and the complainant answered, “I was afraid of repercussions”.

[45] The complainant acknowledged in cross-examination that she did not tell the accused to stop when he was “petting” her stomach. She never said “stop”. She never said that she was uncomfortable. She never tried to go upstairs or to get her aunt.

[46] In cross-examination, the complainant said that she was 100% sure that the accused used his right hand to digitally penetrate her vagina. She acknowledged that the accused’s right hand is disfigured. He has a full thumb, full pinky finger, a missing middle fingertip, and a missing portion (about 40%) of his ring finger, she stated. She could not remember anything about his right index finger.

[47] I pause here to note that there was an agreed statement of facts presented at trial, concerning the accused’s hands. It is agreed that his right hand has fingers of these lengths: the thumb is 1.5 inches, the index finger is 1.5 inches, the middle finger is 1.75 inches, the ring finger is 2 inches, and the pinky finger is 2.5 inches. It is agreed that his left hand has fingers of these lengths: the thumb is 3 inches, the index finger is 3.25 inches, the middle finger is 3.75 inches, the ring finger is 3.5 inches, and the pinky finger is 2.75 inches. Exhibits 7A, 7B, and 7C are three colour photographs of the accused’s hands.

[48] Those photographs were shown to the complainant by defence counsel after they were entered into evidence. The complainant maintained that the accused used his right hand to penetrate her vagina.

[49] In cross-examination, it was pointed out to the complainant that she told the police in her statement, wrongly, that the accused’s left hand is the one with the stub-like fingers. She denied that she said to the police that the accused used his right hand to penetrate her vagina because of her earlier comment to the police that his left hand is deformed. She testified that there is no connection between those two things in her police statement.

[50] There was some movement in the evidence of the complainant, during cross-examination, in terms of the level of her certainty about which hand the accused used to penetrate her vagina. At one point, she stated that she was 100% sure that he used his right hand. She also said that he “most likely” used his right hand. She also acknowledged a “slight possibility” that he used his left hand.

[51] The complainant was asked by defence counsel if it was possible that the digital penetration of her vagina never happened. She denied that possibility. She denied that she may have dreamed about the vaginal penetration.

[52] There was a moment in cross-examination when the Court had to ask that a portion of the audio recording of the complainant’s evidence be played back, more than once, in the absence of the complainant. That moment was regarding a question from defence counsel, “you don’t know what happened during that time period”, to which the complainant answered “correct”. There was some uncertainty about what “that time period” in defence counsel’s question was referring to. After hearing the recording more than once, it appears to this Court that the “time period” referenced in defence counsel’s question was that after the smoke outside, (i) while the complainant was falling asleep, (ii) while she was actually asleep, and (iii) when she was waking up.

[53] The complainant denied defence counsel’s suggestion that the accused may have only touched her crotch area, once, over her shorts.

[54] The complainant agreed with defence counsel that the accused never asked her to touch him. She also agreed that both of them kept all of their clothes on.

[55] The complainant disagreed with the suggestion by defence counsel that she was not scared of the accused that evening.

[56] The complainant disagreed with the suggestion by defence counsel that the accused was “tracing” or touching her fingers/hands.

[57] The complainant disagreed with suggestions by defence counsel that the two of them said goodnight to each other as she started to fall asleep on the couch, and that he left the living room as she started to fall asleep. She also denied that she ever told anyone, including her aunt, that she allowed the accused to touch her breasts.

[58] The complainant denied that she just “freaked-out” and felt guilty about the sexual encounter with the accused while her aunt was upstairs in the same house.

[59] The complainant denied that it was possible that she told her friend, T., that she was not 100% sure what happened with the accused.

[60] The complainant agreed with defence counsel that she never told anyone that the accused had asked her if she felt uncomfortable and she replied “no” to the accused.

[61] Exhibit 6 includes messages between the complainant and the accused from the morning after the alleged sexual assault. There was a message from her to him, “everything’s all good”.

Re-examination of the Complainant

[62] In re-examination, the Crown showed the complainant a tampon. The witness, in the witness box, measured it with a measuring tape, and it was 1.5 inches long.

[63] The Crown asked the complainant about the effect of the medications on her on the night in question. Other than drowsiness and maybe some impact on her mood, the medications did not affect her, she stated. They did not make her sexually interested in the accused, and she was not sexually interested in the accused.

[64] The Crown took the complainant to an excerpt from her evidence at the preliminary inquiry (page 63 of the transcript, lines 3-7). At that time, the complainant testified that it was when the accused’s hand was “underneath” her breast that he asked her if she felt uncomfortable, and she replied to him “no”. The complainant stated in re-examination at trial that the said evidence that she gave previously is correct.

[65] The complainant stated that it was not when the accused was actually touching her breast when he asked her if she felt uncomfortable. It was when he was touching just “under” or “underneath” her breast when he asked her that question.

[66] The complainant was asked in re-examination why she thinks that the accused used his right hand to penetrate her vagina. She replied that the accused was lying on his left side, so his left hand was not free in order to have done that.

[67] The complainant was asked in re-examination about the “time period” referred to above, regarding defence counsel’s earlier question to the complainant. The Crown asked the complainant to clarify the “time period” when she does not know what happened. The complainant answered that the said “time period” is when she was asleep. She knows what happened when she was not actually asleep, she said, including when she had her eyes closed but was still awake.

The Evidence of the Accused

Direct Examination

[68] J.D. was 41 years old at the time of the trial. He has no criminal record. He has been a tradesman repairing and renovating homes for about 15-16 years. He completed grade 11 in school. He was born in Suriname and came to Canada in 2001. He is not a Canadian citizen but rather a landed immigrant. English is his third language.

[69] The accused married K.S. in 2005. He was 25 years old, and she was 39 years of age.

[70] During the relationship, he did most of the childcare.

[71] The couple experienced marital problems starting about 5 or 6 years before separation.

[72] The accused separated from K.S. in early January 2019, at her request. He moved out of the family home.

[73] He lived with K.S. at three different homes. He was never on the title of any of those houses. He did major renovations to all of those homes, and he was not paid for that work.

[74] Since separation, he has paid for half of the children’s activities, and he also buys clothing for the children.

[75] He was “shocked” when he was asked to leave the house. He did not think that his leaving was going to be permanent.

[76] The accused stated that the complainant only came to their house about six times, total, before the year 2017 and maybe two or three times a year after that. He never put the complainant to bed. He had a “good relationship” with the complainant. They talked about their feelings and their relationships and her partners.

[77] In terms of what he knows about the complainant’s mental health, the accused stated that she self-cuts, and she tried to kill herself, and she sees a therapist, and she takes medications.

[78] The accused testified that the complainant was “not very fond” of her stepmother. And the complainant was “intimidated” by K.S. The complainant always wanted the approval of her aunt. The complainant hid her smoking from her aunt.

[79] On the date in question, at the pizza restaurant, he greeted the complainant by putting his arm around her shoulder. She was sitting. He was standing. She hugged him by putting her arm around his thigh. They held that position for two to three minutes, while she kept her hand on his inner thigh.

[80] Later, after the pizza restaurant, and while he was driving back home from the grocery store with the complainant, they talked about age differences. He said that the difference between her age and his age was almost the same as the difference between his age and K.S.’s age. The complainant said that it would never be okay for her to be with someone much older than her.

[81] But they were not talking about the complainant and him, specifically, the accused stated.

[82] Later, back at home, after K.S. and the two children were in bed, he started to clean-up the kitchen and told the complainant that he was also going to go to bed. She called him an “old man”. He asked if she wanted to watch something, and she agreed.

[83] She was wearing a t-shirt and shorts. She lied down on the couch. He sat on the chair. He pushed his chair and ottoman over to the couch.

[84] The accused denied that he commented to the complainant about his sex life (the complainant had testified that he said something about his poor sex life with his wife).

[85] The complainant was on her back. She had a blanket on her. She had her phone in her hand. His left hand was holding her right hand, with their fingers intertwined. They were playing with each other’s hands. He saw all of the scars on her arm. He let go of her hand. He went to his left side. He caressed her arm and her cuts with his right hand. He was “caressing” and “tickling” her right arm. They talked about her self-cutting. He asked her about the fresh scars on her legs. He tickled her stomach for a few minutes.

[86] In direct examination, the accused then said this, in this order. He started to touch her breasts. With his hands on her breasts, he asked her if she felt uncomfortable. She said “no”. He went back to tickling her stomach. He noticed her eyes and asked if she was falling asleep. She said no but that she wanted to go outside for a smoke.

[87] He was touching her breasts for maybe five minutes, he said. It looked to him like she enjoyed it. There was no change in her look. She just kept watching the television.

[88] In direct examination, defence counsel asked, “so why did you think it was alright to touch her breasts for five minutes”, and the accused replied, “I asked if she’s uncomfortable and she – I looked – she looked at me straight in the eyes and she said no”; she looked very relaxed; she made no sign to stop or to indicate that she was uncomfortable (trial transcript, May 25, 2022, pages 27-28, beginning at line 18 on page 27).

[89] The complainant then got up to have a smoke. He asked if she wanted company. She said that she didn’t care. They went outside. She let him have some puffs of her cigarette. They went back inside and back to where they were before. She was again wearing a t-shirt and shorts.

[90] She stepped over him to get to the couch, which she did not have to do.

[91] He was thinking that they would continue “cuddling” and watch the show and then go to bed. He had no reason to think that she did not want to be there.

[92] With her on her back and him on his left side, he caressed her arms again. He tickled her thigh and her arm and her stomach. She moved her right hand to her crotch. She was blinking slowly and looking tired. She pulled her hand away. Because his hand was on top of hers, when she did that his hand touched her crotch. He asked if she was tired. She said yes. He put a blanket on her, he kissed her goodnight, and he went upstairs to bed.

[93] He never removed any of her clothing. She never said or did anything to indicate any safety concerns on her part.

[94] The next day, they realized that the complainant was gone.

[95] In direct examination, the accused was asked about his meeting at the bar with M.S. and W.M. He testified that he told his friends that the two of them (the accused and the complainant) were “flirting”. It is not true that he told his friends that his hand was down the complainant’s pants. It is true that M.S. asked about that, and what he told M.S. and W.M. was that he touched the complainant’s crotch for a second, over her shorts, when his hand was on top of hers and she moved her hand away from her crotch.

[96] The meeting at the bar occurred on January 7th, after the accused had been kicked out of the house. He was living with his brother at the time of the meeting at the bar.

[97] The accused testified in direct examination that he never used his right hand to touch K.S.’s vagina because he does not want to freak anyone out with his deformed hand. He always used his left hand, and not often with K.S. because she did not like him touching her vagina.

[98] The injury to the accused’s right hand occurred in 1999.

[99] After separation, he gave K.S. $400.00-$500.00 per week. When K.S. first confronted him about what happened between him and the complainant, he figured that the “flirting” was “out of the bag”.

[100] At the conclusion of the accused’s examination-in-chief, he was asked if he ever digitally penetrated the complainant, and the accused replied, “no, I did not”.

Cross-examination

[101] In cross-examination at trial, the accused stated the following:

i. he has worked as a locksmith;

ii. during his marriage with K.S., he took 4-5 sessions of anger management counselling, and then they took some couple’s therapy;

iii. he is extroverted, while K.S. is not;

iv. the complainant is “calm, nice, and sweet”;

v. the complainant called him “uncle J.”;

vi. he had a “friendship” with the complainant, and they talked about everything;

vii. he was never an authority figure towards the complainant;

viii. he had a relationship with the complainant that included her telling him certain things in confidence, such as her smoking;

ix. they trusted each other;

x. he told the complainant about his couple’s therapy;

xi. he considered the complainant to be his friend, and he did not see her as his niece, and he does not think that she saw him as her uncle;

xii. they sometimes texted back and forth and communicated with each other on Facebook;

xiii. he considers himself to be a hugger rather than a hand-shaker;

xiv. at the restaurant, the complainant’s hand was between his legs and on his inner thigh for two or three minutes, while she hugged him, and that was a “little strange” and “slightly sexual”;

xv. until the date in question, there had never been anything sexual between him and the complainant;

xvi. four or five times a year, the complainant would sleep over at their house;

xvii. the complainant is discrete about her medications, and he has never seen her take the pills, and he does not know when she generally takes them;

xviii. he has never seen the complainant become drowsy from the medications;

xix. when he was talking with the complainant about age differences, one of his points was that it is frowned upon when an older man of a certain age is with a younger woman of a certain age, and when he was speaking with the complainant he used their specific ages in his words (37 and 18 years old);

xx. he told the complainant that it might be different if the man and the woman were ten years older than those ages, but the complainant said that it would always be wrong in her eyes (that kind of age gap);

xxi. he disagrees that the complainant’s comments during the discussion about age differences were a clear sign of her non-consent to having any sexual contact with the accused;

xxii. the complainant did not invite him to move his chair and ottoman closer to the couch, but he did that to make it easier to cuddle and to chill and to hang out;

xxiii. he had caressed the complainant’s arms before that evening;

xxiv. the fresh cuts that he saw on the complainant’s legs gave him no concern about touching her any further;

xxv. she never said that he could tickle her stomach, but when he did it looked to him that she liked it because she smiled;

xxvi. he agrees that the complainant never communicated her consent, in words, to him tickling her stomach, but she was clearly enjoying it as she did nothing to stop it like move her or his arm away, and she gave him no “hint” that she did not want it;

xxvii. in terms of him tickling her stomach, she did not physically or verbally encourage him to do that, and she did not verbally consent;

xxviii. in answer to a question from the Court in order to clarify the evidence, he was already touching the complainant’s breast when he asked if he was making her uncomfortable;

xxix. it was actually “as” he touched her breast that he asked if she was uncomfortable; and

xxx. he had just started touching her breast when he asked if she was uncomfortable, and he kept his hand on her breast when he asked that question and when she answered.

The Ruling of the Court on the use of the Accused’s prior voir dire evidence during cross-examination at trial

[102] At that juncture in the cross-examination of the accused, the Crown asked to use the accused’s evidence at the pretrial application that was heard and ruled upon by this Court, that is the application to determine if the civilians that the accused allegedly made statements to about what happened with the complainant were “persons in authority”. The defence objected. The cross-examination was paused, and the matter was put over to another date.

[103] That next date was July 4, 2022. Counsel gave submissions on whether the Crown could use the accused’s evidence from the pretrial voir dire on “persons in authority” in cross-examination at trial, for impeachment purposes. The Court ruled in favour of the Crown, with reasons to follow.

[104] I will explain here the reasons for that ruling.

[105] In my view, the issue is resolved by the decision of the Supreme Court of Canada in R. v. Nedelcu, 2012 SCC 59, a case that I brought to the attention of counsel. That case involved a motorcycle accident that caused very serious injury to the accused’s passenger. The accused was sued in civil court in addition to being charged criminally. At the criminal trial, the prosecution sought to cross-examine the accused on his evidence given at the earlier civil examination for discovery. The accused was convicted at trial, but on appeal the conviction was overturned. The Supreme Court of Canada allowed the Crown’s appeal and restored the guilty verdict.

[106] The Supreme Court of Canada found nothing wrong with the Crown using the prior evidence of the accused in the civil proceeding, even though that prior evidence was statutorily compellable and therefore compelled within the meaning of section 13 of the Charter, because that prior evidence was not “incriminating evidence” being used by the Crown to prove the accused’s guilt but rather was evidence being used by the Crown for credibility (impeachment of the accused) purposes.

[107] In our case, the evidence of the accused during the “persons in authority” voir dire was not compelled at all, and further the Crown intended to use that evidence in cross-examination at trial for impeachment purposes and not to prove the guilt of J.D.

[108] Clearly, applying the binding decision in Nedelcu, supra leads inescapably to the conclusion that the Crown could do what it wanted to do in our case.

[109] The defence relied upon a few cases but mainly the decision of the Court of Appeal of Alberta in R. v. Cochrane, 2018 ABCA 80. Simply put, that decision has no application to our facts. First, the accused in that case was self-represented and appeared to have a misunderstanding about what use could be made at trial of his voir dire evidence. That is not our case. Second, that case involved a blended voir dire/trial. That is not our case. Third, that case involved the use of the accused’s voir dire evidence by the trial judge to prove the guilt of the accused and not just for the purposes of credibility of the accused (see paragraph 28 of the Court of Appeal’s decision). That is not our case.

[110] Defence counsel also mentioned in his oral submissions something about notice not having been given to the accused. With respect, notice has nothing to do with it. It is not incumbent on the Crown to say to defence counsel before the accused testifies on a pretrial application voir dire that, if the accused says something that turns out to be inconsistent with what he says at trial, the Crown may seek to cross-examine the accused at trial on that alleged inconsistency, for impeachment purposes.

[111] The defence reliance on cases like R. v. Moya, [2021] S.J. No. 89, a decision of the Saskatchewan Court of Queen’s Bench, is misplaced. That decision does not stand for the proposition advanced by Mr. Cojocaru. Not only do the paragraphs that I was taken to (5, 9, and 42) not say or suggest that the Crown’s request in our case is defeated by some lack of advance notice argument, but the decision as a whole runs completely against the position of the defence in our case (see the penultimate ruling of the judge at paragraph 43).

[112] Those reasons explain why this Court ruled that the Crown could use J.D.’s “persons in authority” voir dire evidence in cross-examination of the accused at trial, for impeachment purposes only.

More Cross-examination

[113] When cross-examination of the accused at trial resumed, he confirmed that his hand was on the complainant’s breast when he asked her if she was uncomfortable. His hand was touching her breast when he asked her that question.

[114] The Crown then took the accused to his earlier voir dire evidence, at page 54 of the transcript, lines 21-24, where he said that he had taken his hand off her breast before he asked her whether she was uncomfortable.

[115] The accused admitted the inconsistency. He stated that his trial evidence is the correct version. He said that he was focussed on other things at the voir dire, things more directly related to what “person in authority” means.

[116] The Crown asked the accused, “so…why are your answers different”, and he replied, “that’s a good question”.

[117] Also in cross-examination, the accused stated that the discussion about age differences was not related specifically to the two of them (the accused and the complainant) but rather was a general talk.

[118] The accused testified further, in cross-examination, that:

i. there was no sexual touching after the smoke outside and no touching of the complainant’s breast after the smoke outside;

ii. he did not ask to put his hand underneath the complainant’s shirt;

iii. he just moved his hand from her stomach to her breast, and her shirt was already pulled up;

iv. as he moved from the stomach to the breast is when he asked if the complainant was uncomfortable, and she said “no”;

v. it was “simultaneous” that he moved his hand from her stomach to her breast and asked if she was uncomfortable;

vi. the first touching of a sexual nature was when he touched her breast;

vii. she knew what he meant when he asked if she was uncomfortable because it was obvious that it meant him touching her breast sexually, and she looked right into his eyes and answered “no” to that question;

viii. he uses his left hand for sexual activity like digital penetration because he does not want to freak anyone out with his deformed right hand;

ix. he had no problem touching the complainant’s breast with his deformed right hand because that is different than digital penetration;

x. when the complainant was touching his inner thigh at the restaurant, he had no concerns even though all the family was there at the table;

xi. before he started to touch and tickle the complainant’s body, she never suggested to him in any way that she was interested in him sexually;

xii. he did not try to touch the complainant’s vaginal area and did not digitally penetrate her vagina; and

xiii. “I’m not a monster”, he said.

Re-examination

[119] In re-examination, the accused stated that his hand was still on the complainant’s breast when he asked if she was uncomfortable. Defence counsel took the accused to page 56, line 1 of the transcript of his “persons in authority” voir dire evidence, and the accused stated that the word therein, “stopped”, referred to the movement of his hand and not to the touching of the complainant’s breast.

[120] “I never went under her shorts”, the accused stated in re-examination.

[121] The accused testified in re-examination that he certainly noticed the long touching of his inner thigh by the complainant at the restaurant but did not think much of it. It went on for three or four minutes.

[122] He stated, as well, that he was touching the complainant’s breast for a “few minutes”, maybe five minutes. The complainant enjoyed the whole encounter on the couch. She had a smile on her face. She was closing and opening her eyes and watching the television.

[123] Defence counsel asked the accused, what made him think that he could touch the complainant’s stomach area. “It was just TLC. Just showing her some affection”, he stated.

[124] Re-examination closed with the accused saying, again, that the complainant and him were “friends”.

VI. Other Evidence at Trial

The Evidence of the Complainant’s Friend, T.

[125] T. testified that the complainant used to refer to the accused as “uncle J.”.

[126] T. testified that Exhibit 3, the Snapchat messages between him and the complainant, may not show all of the communications between the two of them at the material time.

[127] T. stated that, when he picked-up the complainant on the street, she looked “very upset”; “visibly upset”. She told him what happened. She was crying. She seemed “foggy” (he said “a little foggy”, and then he later said “very foggy”). She originally said that she did not really know what happened. She seemed to be having trouble processing the whole thing.

[128] T. told defence counsel that the complainant seemed to be “trying to piece things together”. She was still “processing”. She seemed not to know 100% what had happened. She never mentioned “digital penetration”.

[129] In re-examination, T. testified that the complainant did not appear to be under the influence of or affected by any medication.

The Evidence of the Accused’s Former Friend, M.S.

[130] M.S. has known and has been good friends and neighbours with J.D. and his wife for at least ten years. He has seen the complainant at the home of the accused and his wife several times.

[131] On New Year’s Eve, M.S. hosted a party. The accused did not attend, and that was peculiar, in the mind of M.S. The accused was also not responding to messages sent by M.S. and others in their group of friends and neighbours.

[132] A few days after December 31, 2018, a message circulated among the group of friends that the accused had inappropriately touched E.S. M.S. was told what allegedly happened by a man named P.M. (one of the friends) and by the complainant’s aunt. P.M. broadcast a group message saying that everyone knows what happened (Exhibit 8). The accused was one of the members of that group chat.

[133] When the accused replied in the group chat, “I wish I could tell my side of the story”, M.S. felt that the accused deserved to be heard. So, M.S. and another friend, W.M., offered to talk to the accused. They (the three of them) met at a bar for that purpose.

[134] On consent of both sides, we conducted a blended voir dire/trial on the accused’s alleged out-of-court statements made to M.S. and W.M. at the bar, and the admissibility of those alleged statements.

[135] What did the accused say at the bar, according to M.S.? The accused said that the complainant gave him a flirtatious hug. In the living room of the house, they (the complainant and the accused) were flirting with each other, after K.S. and the children went to bed. The accused was tickling the complainant. M.S. asked the accused, at what point did the complainant reciprocate? The accused had no answer to that question; he seemed shocked and had a blank look on his face. After having a smoke outside, he continued touching the complainant and tickling her belly. M.S. asked the accused if he had his hands down the complainant’s pants. The accused replied yes, on top of the complainant’s panties. The complainant turned on her side, and the accused’s hand moved from the complainant’s belly to under her pants, to her pubic area. That movement of the hand to the pubic area occurred while the complainant was falling asleep. The complainant then got up and left.

[136] That is what the accused said at the bar, according to M.S. The accused never said anything at the bar about the complainant touching him and never said anything about consent or permission.

[137] According to M.S., the accused was sober at the bar. The three men had one drink each at the bar.

[138] The following evidence came out in cross-examination of M.S. by defence counsel:

i. M.S. is an electrician;

ii. there are no notes and no recording of the discussion at the bar;

iii. M.S. is “100% sure” that the accused stated at the bar that his hands were down the complainant’s pants; and it is “not possible” that the accused never said that;

iv. it is not correct that the accused stated at the bar that he accidentally touched the complainant’s shorts;

v. the accused never stated at the bar that he digitally penetrated the complainant’s vagina;

vi. M.S. asked the accused at the bar about penetration, and the accused said that there was no penetration; though later in cross-examination M.S. stated that the accused offered, without being asked, that there was no penetration;

vii. what the accused admitted to at the bar was that his hand was down the complainant’s pants, over top of her panties;

viii. M.S. has not talked with the complainant’s aunt about the whole situation since shortly after the incident occurred at the house;

ix. what M.S. had been told, before the bar discussion, by P.M. and by K.S. is that the accused had his hand down the complainant’s pants;

x. M.S. is “100% certain” that he is not confusing what the accused told him at the bar with what K.S. and/or P.M. said about what happened;

xi. there was no discussion at the bar about comfort or not on the part of the complainant; and there was no discussion about consent;

xii. the accused stated at the bar that he and the complainant were flirting with each other; and

xiii. the whole point of the meeting at the bar was to give the accused a chance to speak and to tell his side of the story, among three friends.

[139] In re-examination, M.S. explained why he remembers so clearly the accused having said at the bar that his hand was down the complainant’s pants. He remembers that because, until M.S. specifically asked the accused about that, the accused had not mentioned it as he told M.S. and W.M. what happened at the house. When M.S. asked the specific question, the accused said yes, that he had his hand down her pants. That is why it is something that M.S. remembers so well.

The Ruling of the Court on the admissibility of the Accused’s alleged statements made to M.S.

[140] The only witness who testified on the voir dire regarding the admissibility of the alleged statements made by the accused to M.S. at the bar was M.S.

[141] The accused elected not to testify on that voir dire.

[142] There was a second voir dire held, later in the trial, on the admissibility of alleged statements made by the accused to his wife, K.S. That is a separate matter, however, and that will be discussed further below in these reasons.

[143] On day five of the trial, May 24, 2022, the Court gave an oral ruling, with reasons to follow, that “the evidence of M.S., as it relates to what J.D. allegedly said to him at the bar, is admissible at trial for its truth”.

[144] The evidence on the voir dire was applied to the trial proper.

[145] The reasons for that ruling are as follows.

[146] First, the argument by the defence appeared to be on the basis that the evidence of M.S., in terms of what was allegedly said by the accused at the bar, was hearsay. The defence referred in submissions to paragraph 215 of the decision of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, which paragraph deals with the threshold reliability requirement for hearsay evidence.

[147] I did not at the time, and I still do not understand the argument made by the defence.

[148] “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement”. Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), at page 970; R. v. Smith, 1992 CanLII 79 (SCC), at page 924.

[149] “What is important is that the evidentiary dangers traditionally associated with statements by persons not called as witnesses” be considered, and the principal danger in most instances when it comes to an assessment of hearsay evidence is the unavailability of the declarant for questioning. Smith, supra, at page 924.

[150] The declarant here is the accused. He is available. He is before the Court. He is not compellable to give evidence, but his availability to do so effectively means that the impugned evidence is not hearsay at all.

[151] A similar point was made by Justice Doherty in the decision of the Court of Appeal for Ontario in R. v. Foreman, 2002 CanLII 6305 (ON CA). In the context of an out-of-court statement made by the accused to a civilian (not a “person in authority”), and the question of whether that statement is admissible as an admission offered by the Crown, Justice Doherty stated the following, at paragraphs 37 and 38.

[37] Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/ reliability analysis. [See Note 1 at end of document] As Sopinka J. explained in R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, 85 C.C.C. (3d) 97, at p. 664 S.C.R., p. 104 C.C.C.: [page216]

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan, "Basic Problems of Evidence" (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.

(Emphasis added)

[38] The applicability of the rule governing the admissibility of admissions distinguishes this case from R. v. Starr, supra. Here, the first level of hearsay involves an admission by the appellant. In Starr, supra, the tendered statement could not be attributed to the accused.

[152] Justice Doherty continued, at paragraph 39, “[h]ad the trial judge given separate consideration to the admissibility of the alleged statement made by the [accused] to [the civilian], he would have concluded that the hearsay rule posed no obstruction to the admissibility of that statement. The real hearsay problem arose because [the civilian], the person to whom [the statement] was allegedly made, was not available to testify at trial”.

[153] In our case, of course, M.S. was available to and did testify at trial.

[154] Second, the defence submissions about the accused being under pressure at the bar and just saying what he thought that his friends wanted to hear go to weight, if anything, and not to admissibility. In a pretrial application, long before M.S. gave evidence at trial, this Court, in written reasons, ruled that there is no air of reality to any suggestion that M.S. was a person in authority, and thus, there was no need to conduct a voluntariness voir dire to determine the admissibility of the accused’s alleged statements made to M.S.

[155] The jurisprudence leaves no uncertainty about this. In R. v. S.G.T., 2010 SCC 20, at paragraph 20, the Supreme Court of Canada stated that “[w]hen statements are made by an accused to ordinary persons, such as friends or family members [as opposed to a “person in authority”], they are presumptively admissible without the necessity of a voir dire”.

[156] In our case, there was no reason to depart from that presumption. In fact, there is a total absence of any evidence that the conversation at the bar was tainted by any promises, threats, coercion, inducements, an atmosphere of oppression, an environment in which it might reasonably be thought that the accused had a motive to lie, or anything that would cause this Court to question the voluntariness of what the accused allegedly said. It was three friends sitting at a bar, with the accused telling his buddies his side of the story.

[157] Third, and finally, in the alternative, if this Court is wrong and it is found that (a) the alleged statements made by the accused at the bar are hearsay and could only have been admitted at trial, for their truth, under a traditional exception to the hearsay rule and/or under the principled approach to hearsay evidence [R. v. Khelawon, 2006 SCC 57, R. v. Bradshaw, 2017 SCC 35, and R. v. Nurse, 2019 ONCA 260, are three leading decisions on both approaches to hearsay evidence, the first two from the Supreme Court of Canada and the third from the Court of Appeal for Ontario)], and (b) the traditional exception of admissions does not apply, then I would have admitted the accused’s statements under the principled approach.

[158] It would have been awkward to write it that way, which is proof that it makes no sense, but I would have said that necessity is established on a balance of probabilities because the accused cannot be compelled to testify and, thus, the alleged statements made by him at the bar have to be elicited through M.S.

[159] I would have said, further, that threshold reliability is established on a balance of probabilities because of (i) the absence of any evidence which goes against the voluntariness of the alleged statements, elaborated upon above, (ii) the evidence of M.S., which I accept, that the declarant (the accused) and the recipient (M.S.) were both sober at the time, (iii) the evidence of M.S., which I accept, that the two of them were very good friends at the time, and (iv) the evidence of M.S., which I accept, that he clearly remembers what the accused said about his hand being down the complainant’s pants because M.S. had to specifically ask the accused about that before the accused said it.

[160] For all of those reasons, the ruling was made to admit, for their truth, the alleged statements made by the accused to M.S. at the bar.

The Evidence of the Accused’s Wife/the Complainant’s Aunt, K.S.

Direct Examination

[161] K.S. was separated from the accused by the time that she testified at trial. Her brother is the father of the complainant. She and the accused have two children together. The accused left the home in early January 2019.

[162] According to K.S., the complainant always called the accused “uncle J.”. The complainant and the accused knew each other for some 14 years before the alleged incident occurred. The complainant frequently visited their home. The complainant and the accused were very close. The complainant regularly slept over at their house. The complainant actually lived with them for a few months when she was much younger. The complainant accompanied their family to the cottage and to other places.

[163] K.S. testified that the complainant has a history of self-harm and mental health difficulties. The complainant takes medications that can make her very groggy and very tired. For certain, the accused knew about the complainant’s mental health issues and her medications, K.S. stated.

[164] K.S. testified that the complainant has never left their house in the middle of the night except for the one occasion immediately after the alleged incident occurred.

[165] K.S. stated that she has never seen the accused tickle the complainant’s stomach area.

[166] K.S. testified that, on the evening in question, she went to bed before the accused and the complainant. K.S. woke up around 9:00 or 9:30 a.m. The complainant was not there. She asked the accused where the complainant was, and the accused replied that she left. K.S. asked the accused to contact the complainant by text.

[167] K.S. stated that she had not seen anything unusual in the interactions between the accused and the complainant on the date of the alleged offence.

[168] About a week later, while at a hockey game, K.S. received a telephone call from her brother. The brother told K.S. that the complainant said that the accused had “fingered” her and touched her breasts. K.S. immediately confronted the accused at the arena. She asked him what he did to their niece. The accused looked “shocked”, K.S. stated.

[169] After getting home, K.S. and the accused talked. The accused told K.S. a version of events. K.S. told him that his story was very different than what she had heard from her brother.

[170] Afterwards, K.S. went to her brother’s place. She spoke with her brother. Then, later still, the accused told K.S. what happened between him and the complainant.

[171] According to K.S., there were a few different times that the accused told her a version of events concerning what happened between him and the complainant – first at home after leaving the hockey arena, and then at home sometime between December 26th and December 31st, and then at Starbucks sometime between December 31st and January 5thof the next year, and then at Starbucks again on January 6th.

[172] K.S. did not believe the accused.

[173] K.S. had to answer some difficult questions at trial about her own sexual history with the accused. The questions were necessary because the Crown wanted to address the issue about the disfigurement of the accused’s right hand and whether that affected his sexual activity. K.S. testified that the accused, during their lengthy relationship, did use his right hand to digitally penetrate her vagina and her anus.

The Ruling of the Court on the admissibility of the Accused’s alleged statements made to K.S.

[174] The reader will observe that the Court has not detailed any of the alleged statements made by the accused to K.S. about what happened between the accused and the complainant. The reason is that the Crown was very clear in saying at trial, more than once, that the Crown was not relying on those alleged statements, for any purpose, but was leading that evidence in direct examination of K.S. only because the defence had indicated that it may wish to argue that some or all of those alleged statements ought to be admissible at trial, for some purpose.

[175] As it turned out, the basis for the admission of any or all of those alleged statements made by the accused to K.S. never materialized, and thus, the Court rules that they are inadmissible.

[176] In submissions, defence counsel argued that the alleged statements may be admissible, despite any general rule against the admissibility of prior consistent statements, in order to rebut an allegation by the Crown of recent fabrication. That allegation was never made, however, whether during cross-examination of the accused or in the Crown’s written closing submissions.

[177] In Court, on May 24, 2022, I stated, “no ruling is made at this time on the issue of the admissibility, for their truth, of the alleged out-of-court utterances made by [J.D.] to [K.S.], as that ruling must await the trial evidence, if any, of the accused and whether a prior consistent statement by the accused may be admissible to rebut an allegation of recent fabrication”.

[178] The defence never argued that the alleged statements were admissible for some other purpose than for their truth. The defence never took issue with the general prohibition against the admissibility of prior consistent statements. And the defence never advanced any other legal basis for the admissibility of any or all of those alleged statements made by the accused to his wife, except for a passing comment by defence counsel in oral submissions that, out of fairness, the utterance by the accused to K.S. should be admitted if the utterances made by the accused to M.S. are admitted.

[179] I am not sure what “utterance” made by the accused to his wife defence counsel was referring to, as there were several alleged comments attributed to the accused by K.S., but in any event I reject the argument. The crux of the issue as framed by defence counsel was very clearly that of a prior consistent statement being capable of admission in order to rebut an allegation of recent fabrication.

[180] That basis for admissibility never arose.

[181] Thus, the alleged statements made by the accused to K.S., about what happened between the accused and the complainant, are inadmissible at trial.

[182] I would note that the said ruling, despite the position taken by the defence at trial, is advantageous to the defence, not to the Crown. The defence should not want to have those alleged statements admitted into evidence at trial. As just one example, the accused having allegedly said to his wife, “I thought she was in to me”, referring to the complainant, is certainly not something good for the accused.

Cross-examination

[183] Below, in this Court’s summary of the evidence of K.S. in cross-examination at trial, I have omitted references to what alleged statements she attributed to the accused during their discussions about what happened between him and the complainant, given the ruling that those alleged statements are inadmissible at trial.

[184] In cross-examination at trial, K.S. testified that:

i. she is 15 years older than the accused;

ii. when they met, he was not a Canadian citizen, and she sponsored him to be in Canada, and at the time of the alleged incident between the accused and the complainant he was still not a Canadian citizen;

iii. the accused was born in Suriname;

iv. she has never observed the complainant’s medications to affect her mood or her behaviour, but rather just that they make her groggy;

v. she does not really know if the complainant’s medications ever caused her to have hallucinations or delusions or to see or hear things that were not real;

vi. the complainant has a history of self-cutting, and the complainant did try to kill herself;

vii. the suicide attempt was long before the date of the alleged incident between the accused and the complainant;

viii. the complainant has been hospitalized before, regarding mental health issues;

ix. she agrees that the complainant has experienced anxiety, depression, and self-harm, but she disagrees that the complainant has had “hysterical episodes”;

x. she has a prenuptial agreement with the accused;

xi. only she is on title to their home;

xii. the accused has never been violent with her;

xiii. the accused sometimes gets quite animated, but that does not necessarily mean that he is angry;

xiv. during sex, the accused used both hands;

xv. the accused was a locksmith, and he used his right hand just as normally as he used his left hand;

xvi. on December 23rd, after hockey, once back at the house she told the accused that her brother said that the accused had sexually touched the complainant, and the accused was “upset and shocked”;

xvii. when she asked the accused to leave the house, he was upset and anxious and angry, and it was clear to her that he did not want to leave;

xviii. their separation has been very amicable and without any legal proceedings, and there is no family court order in place;

xix. the accused has their children every other weekend;

xx. the accused pays for a portion of the children’s activities;

xxi. the accused was out of the house by January 7th, not long after the alleged incident between the accused and the complainant;

xxii. when she spoke with the accused about what happened with the complainant, she had no intention of trying to get evidence to be used at court;

xxiii. she did not help the police schedule interviews with M.S. and W.M.;

xxiv. she did not share with the accused any of the proceeds of sale of the homes that they lived in together;

xx5. the accused did some work at one of their prior homes, and he did some substantial renovation work at the home that they were living in at the time of the alleged incident between the accused and the complainant;

xxvi. she did not pay the accused for that renovation work;

xxvii. one of their friends, P.M., is a lawyer, and the accused often got advice from P.M.; and

xxviii. on May 19, 2022, during the trial, she told the police officer at court about being pleasured by the accused sexually, and she never mentioned that to the police previously because her personal sexual history had nothing to do with the alleged incident being investigated, that is until she was specifically asked about it by the police officer at court.

Re-examination

[185] In re-examination, K.S. stated that she has never seen the complainant to be delusional or to have hallucinations. The suicide attempt was eight or nine years ago, from May 2022.

[186] In re-examination, K.S. testified that, since separation, she has never blocked the accused from seeing their children. She has not sought any spousal support from the accused.

[187] K.S. stated in re-examination that the accused signed the prenuptial agreement with independent legal advice. During the relationship, she paid for most of the household expenses, she stated.

[188] K.S. testified in re-examination that the accused has never advanced any sort of trust claim with regard to the last home that the family lived in together. She denied that she is using the criminal proceeding to get an advantage in her separation from the accused.

[189] In re-examination, K.S. stated that, on May 19, 2022, she was asked by the police officer at court if the accused used both of his hands in their sexual interactions. She replied in the affirmative. Before that date, she had no idea that the condition of the accused’s right hand was of any relevance to the case, she said.

The Evidence of Dr. Julian Gojer, Defence Expert Witness

[190] The final witness at trial was Dr. Julian Gojer, called by the defence and tendered as an expert witness in the field of psychiatry.

[191] The Crown conceded the witness’ qualifications and also conceded the admissibility of his evidence in part. As there was some dispute about the admissibility of some of Dr. Gojer’s evidence, a voir dire was held.

[192] At the conclusion of the voir dire, the Court ruled that all of Dr. Gojer’s evidence was admissible at trial. The voir dire evidence was applied to the trial proper. The reasons for the said ruling are outlined below, following a brief summary of the witness’ evidence.

[193] Dr. Gojer testified that self-cutting is one criterion of bipolar disorder (“BPD”). We do not make a diagnosis based on one criterion, however, he said, even based on recurrent self-cutting.

[194] Dr. Gojer stated that difficulty handling rejection and abandonment is typical of someone with BPD. Symptoms of BPD include irritability, anger, anxiety, suicidal tendencies, impulsive behaviours, unstable interpersonal relationships, dissociation, depression, and sleeping problems.

[195] In the legal context, according to Dr. Gojer, BPD is important because it might explain a false allegation made by a complainant and/or distorted perceptions on the part of a complainant. There might be the need for caution in terms of gauging such a person’s credibility and/or reliability.

[196] At the same time, Dr. Gojer warned that we should be careful not to paint all persons with BPD with the same brush. Not all of them are liars, never mind pathological liars. Not all of them make false complaints.

[197] Treatment for BPD include medication and counselling and therapy (both individual and group), Dr. Gojer stated. Medications for BPD include Clonazepam and Seroquel.

[198] Clonazepam is a sedative for aiding in sleep and to treat anxiety. In the psychiatric sphere, it is also prescribed to treat panic disorder, post-traumatic stress disorder, BPD, and agoraphobia. It can last 8-12 hours. It also has non-psychiatric uses, to treat muscle spasms for example. Lamotrigine is traditionally an antihistamine, but it is prescribed to treat depression and mood instability. Combined with Clonazepam, Lamotrigine can increase the sedation effect. Seroquel is also a sedative used to treat depression and anxiety.

[199] The doses in question in our case (which I assume means that Dr. Gojer was told by defence counsel what the complainant testified to in terms of how much she takes of each of the three medications) are low to moderate, the witness stated.

[200] Any sedative can impact on memory and can cause confusion, particularly regarding less major events, Dr. Gojer testified.

[201] Dr. Gojer testified that persons with BPD can be misleading because they can appear very normal, including in a courtroom setting.

[202] Dr. Gojer was very careful to say, more than once, that he cannot make any diagnosis of the complainant. He stated that her clinical records could be useful in making a diagnosis or in ruling-out a diagnosis.

[203] In cross-examination by the Crown, Dr. Gojer stated that it is common for a victim of a sexual assault to not be able to recall minor details (like which hand was used by the offender or what body position she was in at the time) but be able to describe the main event. In fact, remembering “core” details but not remembering “peripheral” details, for a trauma victim including a victim of a sexual assault, is the “norm and not the exception”, in the words of Dr. Gojer.

[204] Dr. Gojer told the Crown that, even with access to a patient’s full clinical records, a diagnosis may not be possible because, ethically, he would be required to interview the patient before making such a diagnosis. Dr. Gojer added that the privacy of records is “sacrosanct” in the medical and justice circles. The last thing we want to do is open “pandora’s box” and maybe even re-traumatize the victim, he said.

[205] I pause here to note that these questions by both counsel about the usefulness, or not, of a patient’s clinical records were, undoubtedly, directed in part to the event of a potential appeal based on this Court’s dismissal of the defence’s third party records applications brought prior to the start of the trial.

[206] In cross-examination, the witness stated that self-harm is symptomatic of many conditions besides BPD, including depression, post-traumatic stress disorder, and non-suicidal self-injurious behaviour. This complainant’s self-cutting, even if recurrent, could be explained by something other than BPD, Dr. Gojer stated.

[207] Dr. Gojer told the Crown that there are nine possible diagnostic criteria for BPD. The existence of five of them is required to make the diagnosis. In our case, at its highest, based on what he reviewed including the transcript from the preliminary inquiry, there is evidence of three of the criteria for this complainant, Dr. Gojer testified.

The Ruling of the Court on the admissibility of Dr. Gojer’s evidence

[208] Given the Crown’s concessions, there is no need for the Court to deal with anything other than two issues: (i) is Dr. Gojer’s evidence about BPD, specifically, relevant, and (ii) is that evidence necessary?

[209] I would answer both questions in the affirmative.

[210] The Crown relies on the decision of the Court of Appeal for Ontario in R. v Phillips, 2017 ONCA 752, [2017] O.J. No. 5022.

[211] In that case, the defence expert was Dr. Gojer. At trial, a jury convicted two accused of first-degree murder. The defence had tendered Dr. Gojer as an expert witness to testify on whether the deceased victim was suffering from a mental disorder at the time of the shooting. That was said to be important to the defences of self-defence and provocation. The trial judge ruled that the evidence of Dr. Gojer was inadmissible, for more than one reason. That ruling was upheld on appeal.

[212] In terms of the governing legal principles, this Court relies upon the useful summary provided at paragraphs 124-126 of the decision in Phillips, supra, set out below.

[124] Expert opinion evidence is presumptively inadmissible consisting, as it does, not of statements by a witness of what he or she saw, heard, felt or did, but of a statement, based on experience and training, about a ready-made factual inference that should be drawn from a body of facts: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 42; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 71. The factual inference-drawing that lies at the heart of expert opinion evidence has the real potential, as Doherty J.A. put it in Abbey, at para. 71, “to swallow whole the fact-finding function of the court, especially in jury cases.” Yet, expert opinion evidence often is necessary in a criminal case, so the judicial challenge is to control properly its admission, presentation to, and use by the jury: Abbey (Ont. C.A.), at para. 73.

[125] The judicial admissibility control process is described as involving two steps: (i) assessing whether the preconditions to admissibility set down in Mohan have been met, and (ii) deciding “whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: Abbey (Ont. C.A.), at para. 76; White Burgess Langille Inman v. Abbot and Hamilton Co., [2015] 2 S.C.R. 182, 2015 SCC 23, at paras. 23 and 24.

[126] The second step engages the trial judge’s “gatekeeper” function and requires the exercise of judicial discretion by identifying and weighing competing considerations to decide whether, on balance, those considerations favour the admissibility of the evidence: Abbey (Ont. C.A.), at para. 79.

[213] First, in Phillips, supra, no error was found in the trial judge’s conclusion that the evidence of Dr. Gojer had “marginal relevance”, legally, because of its lack of probative value.

[214] I do not make the same conclusion here. I find that the evidence of Dr. Gojer about BPD, generally, even though he cannot make any diagnosis for the complainant, has some (albeit not significant) probative value in this Court’s assessment of whether, and to what extent, the complainant’s mental health issues may impact on the veracity of her evidence.

[215] In other words, unlike the situation in Phillips, supra, I think that there is some logical and some legal relevance to the evidence of Dr. Gojer.

[216] Second, in Phillips, supra, no error was found in the trial judge’s conclusion that the evidence of Dr. Gojer was unnecessary. In fact, Dr. Gojer himself had testified on the voir dire that, “you don’t need an expert to conclude [the subject had signs of mental illness]” – see paragraph 135 in Phillips, supra.

[217] Our case is different, however. We are not dealing with the existence of mental illness generally but rather of BPD specifically, at least from the perspective of the defence. Dr. Gojer’s evidence about BPD, specifically, is far beyond my knowledge, and further that evidence is more than just helpful but required, in my view, to sufficiently address what I think is a major part of the theory of the defence – that is that the complainant, even absent evidence of an actual diagnosis of BPD, is a person who fits the profile of someone with BPD and is a person whose evidence should be treated with caution because of that, and because of her psychiatric history and the medications that she takes to treat her mental health difficulties.

[218] I express no view, at this stage of the within reasons, about the merit of that theory, but that is, unquestionably, a pillar of the defence case, and I find on balance that Dr. Gojer’s evidence, all of it, including that related to BPD specifically, is both relevant and necessary to this Court’s assessment of it.

[219] One final comment is in order. Ms. Reid intended no unfairness to the accused, but the result of the Crown’s position would have been unfair to the accused, in my view.

[220] Much of Dr. Gojer’s evidence backfired on the defence, I think, and even his evidence about BPD did not necessarily help the accused. It is also true, though, that for this Court to have picked and chosen among his evidence in terms of what is admissible and what is not, in the way suggested by the Crown, would have left out the only portion that is even capable of being considered useful for the defence.

[221] We do not make admissibility of evidence decisions based on a desire to even the scales, but I note that observation for what it is worth.

[222] For all of those reasons, the Court ruled that Dr. Gojer’s evidence, in its entirety, was admissible and was to be applied to the trial proper.

VII. This Court’s Assessment of the Evidence and Findings of Fact

[223] After eight days of trial held in May and July 2022, counsel delivered their closing submissions in writing. Where appropriate, those submissions are addressed in this section of these reasons.

Accepting All, Some, or None of a Witness’ Evidence

[224] As we tell juries, the assessment of whether to accept a witness’ evidence is not an all or nothing exercise. The Court may accept all, some, or none of a witness’ evidence.

There is More Than One Route to Liability in This Case

[225] It is important to note that this case raises more than one potential act of sexual assault. The verdict does not depend on whether it has been proven beyond a reasonable doubt that the accused digitally penetrated the complainant’s vagina. There could be a finding of guilt based on the accused’s touching of the complainant’s breast.

The Essential Elements of the Offence of Sexual Assault

[226] The essential elements of sexual assault, each of which must be proven by the Crown beyond a reasonable doubt, are that (i) J.D. intentionally applied force to the complainant, and (ii) the complainant did not consent to that force, and (iii) J.D. knew that the complainant did not consent to that force, and (iv) the force that J.D. intentionally applied took place in circumstances of a sexual nature.

The W.D. Instruction

[227] In Part IV of these reasons above, the Court outlined the classic W.D. instruction but, as the reader will observe, I employed wording that is more nuanced than the traditional direction suggested by Justice Cory in the Supreme Court of Canada’s 1991 decision. This Court’s wording is slightly modified from what is contained in the standard jury instruction [see Final 16 in Watt’s Manual of Criminal Jury Instructions, Second Edition (Carswell, 2015), at page 271].

[228] In my view, the classic W.D. instruction may not be appropriate in a case where the evidence of the accused, whether in the form of an out-of-court statement or in the form of oral testimony at court or in both forms, is mixed – meaning that it is capable of being described as partly exculpatory and partly inculpatory.

[229] This point was made very clearly in the decision of the Court of Appeal for Ontario in R. v. L.K., 2020 ONCA 262, at paragraph 34, which case dealt with a mixed out-of-court statement of the accused, and in my opinion the same applies to other forms of evidence of the accused.

[230] What is most important to remember is that an incredible accused is not necessarily a guilty one. That recognition is one of the key objectives of the W.D. instruction.

The Touching of the Complainant’s Breast

[231] There are aspects of J.D.’s evidence that are certainly exculpatory, including his flat denial that he digitally penetrated the complainant’s vagina. There are other aspects of his evidence, however, that could be described as being inculpatory, particularly his evidence about his touching of the complainant’s breast.

[232] That is why the Crown, in written closing submissions, opens with the comment that “[i]f the Court accepts [J.D.’s] own evidence that he touched [the complainant’s breast] before asking her consent, he is guilty of the offence charged”.

[233] In reply submissions, at paragraph 1, the defence counters that argument by the Crown by suggesting that the accused’s touching of the complainant’s breast and his question to her about whether she was uncomfortable happened, essentially, simultaneously.

[234] I respectfully disagree with the defence.

[235] On the accused’s own evidence that I accept, he is guilty of sexual assault. He touched the complainant’s breast (an intentional application of force), in clear circumstances of a sexual nature, without the consent of the complainant, and knowing that she did not consent. Each of those essential elements has been proven beyond a reasonable doubt.

[236] Let us take a closer look at the evidence, focussing for now on the accused’s touching of the complainant’s breast.

[237] In direct examination, the complainant testified that the accused moved his hand from her bare lower stomach area to just under her breasts. She said that she did not consent to that, nor was she asked by the accused whether she consented. He then asked if she was uncomfortable, and she replied “no”. She was in shock. Without anything further, he touched her breast and then applied more pressure to it, grabbing it more firmly.

[238] In cross-examination, the complainant stated that the touching of her breast lasted for several minutes.

[239] There was more questioning of the complainant, in both cross-examination and re-examination, about the precise interplay between the accused’s touching of her breast and his question to her about whether she was uncomfortable. Did those two things happen at the exact same time? Was his hand just underneath or actually on her breast when he asked the question?

[240] The complainant answered those further questions as best that she could, but the fact is that the accused himself has answered those questions.

[241] In direct examination, the accused was crystal clear that he started to touch the complainant’s breasts, and then, with his hands on her breasts, he asked her if she was uncomfortable.

[242] In cross-examination, the accused’s evidence became a little uncertain. He told the Court that he was already touching the complainant’s breast when he asked her the question – that is consistent with his evidence in-chief. He then told the Crown that it was “as” he touched her breast that he asked the question, which could imply that the two things happened at the same time, which might be different than what he said in-chief and to the Court. He then told the Crown that he had just started touching her breast when he asked the question, which is more consistent with what he said in-chief and to the Court. He then, after being confronted with his evidence on the earlier “persons in authority” voir dire, confirmed the accuracy of his trial testimony, which presumably meant his evidence that his hand was touching the complainant’s breast before he asked the question and received the answer.

[243] In re-examination, the accused again confirmed that his hand was on the complainant’s breast when he asked her if she was uncomfortable.

[244] This Court accepts the preponderance of the accused’s evidence, namely, that he touched the complainant’s breast before he asked her whether she was uncomfortable.

[245] I say the “preponderance” of the accused’s evidence to account for the one potential departure from the notion that he had his hand on the complainant’s breast before making any enquiry at all that could amount to an attempt to ascertain if she consented, and that is his use of the word “as”. If that word was meant to convey something different than what the accused testified to both before and after he used it, which is debatable, I reject that.

[246] It is debatable whether the one potential departure is anything different at all. “As” could mean the same thing as “while”, and that would be no different than saying that his hand was on the complainant’s breast when he asked her the question. “As” does not necessarily mean “at the same time that”, which is what the defence wants the Court to conclude.

[247] In any event, even if there is a difference in the accused’s evidence, it is the preponderance of his evidence, throughout direct examination, most of the cross-examination, and re-examination, that permits the Court to make a reliable finding of fact, and this Court does find as a fact that the accused was touching the complainant’s breast before he asked her if she was uncomfortable.

[248] The defence would say that the said finding of fact is inconsistent with the complainant’s evidence. I disagree. One has to look at her evidence as a whole, and in doing so any reasonable person would agree that there is no material difference between her saying that the accused had his hand just under her breast and her saying that his hand was on her breast when he asked her the question about whether she was uncomfortable.

[249] The point is that he touched her breast area without making any enquiry at all about whether she wanted him to do that.

[250] The intentional touching (application of force) has been made out, beyond a reasonable doubt.

[251] As to whether the complainant consented to that touching of her breast, I accept her evidence that she did not. And there is no evidence from the accused that she did.

[252] That the accused had been caressing her arm and stomach cannot amount to her consent to him touching her breast. The two former have nothing to do with the latter. First, caressing an arm or stomach is not inherently sexual, but touching a breast is, at least in these circumstances. Second, consent is a voluntary agreement by the complainant that the accused do what he did, when he did it, and in the manner that he did it. Such a voluntary agreement must be based on evidence and not some outdated and improper assumption that the person being touched one way must want it all ways.

[253] Lack of consent has been made out, beyond a reasonable doubt.

[254] There is no air of reality to any suggestion that the accused honestly but mistakenly believed that the complainant was consenting to him touching her breast. In fact, the defence submissions on this element of the offence depend on events after the accused first touched the complainant’s breast, as evident from paragraph 82 of the defence submissions (remember, this Court has found that the complainant’s answer “no” to the accused’s question about whether she felt uncomfortable came after the accused was already touching the complainant’s breast).

[255] That the accused knew that the complainant was not consenting, or at least that he was reckless about whether she consented or not, has been made out, beyond a reasonable doubt.

[256] As alluded to above, the touching of the breast was clearly sexual, and thus the final essential element of the offence has also been made out, beyond a reasonable doubt.

[257] In summary, essentially on the accused’s own evidence, he is guilty of sexual assault regarding his touching of the complainant’s breast.

[258] He did more than that, however.

The Fondling of the Complainant’s Breast for Several Minutes

[259] There is no controversy in the evidence that the accused, after he initially touched the complainant’s breast, fondled her breast for a few or several minutes.

[260] This Court holds that, in doing so, the accused sexually assaulted the complainant.

[261] Assuming, without deciding, that there is evidence of the complainant’s consent to having the accused fondle her breast, through her answer “no” to his question about whether she was uncomfortable, that alleged consent is vitiated by virtue of section 273.1(2)(c) of the Criminal Code: “no consent is obtained if the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”.

[262] I respectfully disagree with the defence submission that the said provision does not apply in our case.

[263] In my view, it has been proven beyond a reasonable doubt that the complainant did not voluntarily agree to participate in the sexual activity in question, that is the accused’s fondling of her breast for a few or several minutes, because of the application of the said provision.

[264] The aim and purpose of section 273.1(2)(c) was summarized very succinctly by Justice Moldaver, on behalf of the Supreme Court of Canada, in R. v. Snelgrove, 2019 SCC 16, at paragraph 3, set out below.

[3] Section 273.1(2)(c) has as its aim “[t]he protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity” (R. v. Hogg (2000), 2000 CanLII 16865 (ON CA), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17). Inducing consent by abusing the relationships set out in s. 273.1(2)(c) does not imply the same kind of coercion contemplated by s. 265(3)(d) of the Criminal Code, which speaks to consent obtained where the complainant submits or does not resist by reason of the “exercise of authority”. Rather, as Justice Doherty observed in R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1: “An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity” (para. 12).

[265] Consider the overall circumstances. This accused was many, many years older than the complainant. She had actually lived with the accused and his family for a period of time when she was younger. He was, even on his own evidence, a person that the complainant called “uncle”. He was the long-time spouse of the complainant’s aunt. He had known the complainant since she was a very young child. He and the complainant, in his own words, trusted each other. He and the complainant, in his own words, had a relationship that included her confiding in him (about smoking, for example) and him confiding in her (about his private couple’s therapy, for example). He, even on his own evidence, knew about the complainant’s lengthy history of serious mental health challenges, including self-cutting and a suicide attempt. He, even on his own evidence, observed, that very evening, fresh scars on the complainant’s legs, from her self-harm. He, even on his own evidence, had a relationship with the complainant that had them talking to each other about “everything”. They texted each other. They chatted with each other on social media. She went with him and his family to other places together. She would sleep over at their house. He, even on his own evidence, had a relationship with the complainant that was unique in that it was different than what she had with her own step-mother (who she was not very fond of) and with her own aunt (who she was intimidated by).

[266] In my view, the evidence is overwhelming that the accused occupied a position of trust in relation to the complainant.

[267] The evidence is equally overwhelming that the accused abused that position of trust. On his own evidence, what precipitated the first sexual contact between the two of them that evening (him touching her breast) was a string of circumstances that cannot reasonably be viewed in any way other than as amounting to an inducement to allow him to fondle her breast.

[268] It started with the accused holding her hand, fingers intertwined, alone in the living room, a grown man in his late thirties and his 18-year-old niece. Then playing with her hand. Then caressing her arm including her cuts. Tickling her arm. Talking to her about her self-cutting. Looking at and asking her about the fresh cuts on her legs. Then, even if all of that had been done in the past, going to the bare stomach. Then the breast. And then the question.

[269] What was she supposed to say to that question, in that environment, with that man? She was supposed to just let it go, to let it continue, and that is what I find the intention of the accused to have been.

[270] The accused’s fondling of the complainant’s breast for a few or several minutes constitutes a sexual assault. It was an intentional application of force, clearly in circumstances of a sexual nature, consent having been vitiated by reason of section 273.1(2)(c), and consequently no availability of any defence of honest but mistaken belief in consent – section 273.2(a)(iii).

[271] All of that has been proven beyond a reasonable doubt.

[272] There is more, however.

The Digital Penetration of the Complainant’s Vagina

[273] I reject the accused’s evidence that he did not digitally penetrate the complainant’s vagina. I do not believe that evidence, and I am not left in a reasonable by it, whether alone or in combination with any other evidence adduced at trial.

[274] I believe the evidence of the complainant. I believe the evidence of M.S. On the totality of the evidence, I am sure that the accused digitally penetrated the vagina of his 18-year-old niece. In doing so, he sexually assaulted her.

[275] There is no debate between the prosecution and the defence that the issue here is whether the alleged sexual activity, the accused’s digital penetration of the complainant’s vagina, actually happened. The heading, in bold print, on page 18 of the defence closing submissions makes that very clear.

[276] If it happened, then it was obviously in circumstances of a sexual nature. If it happened, then it happened while the complainant was asleep, and consent was therefore impossible regardless of section 273.1(2)(c). Similarly, if it happened, then it happened while the complainant was asleep, and honest but mistaken belief in consent was therefore impossible.

[277] In my opinion, J.D. was not a credible witness. In addition to and quite apart from the fact that his evidence on certain points runs contrary to that of three witnesses whose testimony I believe (the complainant, M.S., and K.S.), it also suffers from the following significant weaknesses.

[278] First, some of his evidence was an unwarranted and totally irrelevant attack on his own wife. I recognize that he was simply answering questions put to him by his counsel, but why in the world would he think it important to tell the Court that he was not paid for renovation work that he did on the family homes, for example? Why would he be paid? What spouse pays her partner for fixing up the home, while they are together and living in the home? I do not understand it. As another example, why describe his wife as an introvert and a partner who does not like him touching her vagina? The former is not relevant to anything. The latter is an unnecessary jab; he had already made his point, more than once, that he does not do sexual things with his right hand and only ever touched his wife’s vagina with his left hand, and it adds nothing of value to his evidence to say that the touching of his partner’s vagina was infrequent because she never liked it.

[279] Second, his evidence attempted, unreasonably, to understate the depth of his relationship with the complainant. He never put the complainant to bed, he stated. He does not think that she considered him to be her uncle, even though he was the long-time husband of her aunt and even though the complainant actually referred to him as “uncle”. These are just two examples.

[280] Third, some of his evidence simply makes no common sense. For example, he testified that he was “shocked” when he was asked to leave the house in early January following the incident with the complainant, yet he also knew at that time that he was accused of having sexually assaulted K.S.’s brother’s daughter, in the home of his own family, while his wife and children were present. I do not understand why he would be shocked at the reaction of K.S.

[281] As another example, he testified that the complainant, at the pizza restaurant, in front of everyone, placed her hand between his legs and on his inner thigh and held it there while hugging him for well more than a minute (as long as three or four minutes, in fact), yet he told the Crown in cross-examination that he had no concerns about that. I think that would be concerning to any reasonable person, if it actually happened, which I doubt.

[282] As a further example, he testified in direct examination that the discussion that he had with the complainant about age differences was not in reference to him and the complainant specifically, yet he told the Crown that, during that discussion, he used the exact ages of him and the complainant. If you are having a general discussion about couples of different ages, why would you insert into the discussion the precise ages of yourself and the person that you are talking to? Of course, the discussion was about him and her, specifically.

[283] As another example, he testified in direct examination that it appeared to him that the complainant was enjoying his fondling of her breast, yet he also told his lawyer that she just kept watching television and showed no change in her look. It reflects a certain outdated and inappropriate way of looking at the issue of consent. Unless the person objects, she consents. That is simply not correct.

[284] As a further example, his evidence that he never uses his right hand for sexual touching, even for touching his wife’s vagina, because of its deformity seems at odds with his evidence that he had no problem using that same hand to touch the breast (which is even closer to the person’s line of vision) of someone who is not even his wife.

[285] As another example, he testified that upon being confronted by K.S. he suspected that the “flirting” with the complainant was “out of the bag”. Given his own evidence that he fondled the complainant’s breast, I would have thought that he was afraid of more than just a revelation of “flirting”.

[286] Fourth, some of the evidence of the accused was internally inconsistent. For example, he stated in direct examination that the complainant came to their house maybe two or three times a year starting around 2017, yet he told the Crown in cross-examination that the complainant would sleep over at their house four or five times a year. That is a material point that goes to the nature of the relationship between the accused and the complainant, and it appears that the accused tried to downplay it in his evidence-in-chief.

[287] As another example, there was a sharp inconsistency, on a material point, between his evidence at the “persons in authority” voir dire and his evidence at trial, regarding whether his hand was on the complainant’s breast (or whether he had actively removed it) when he asked her if she was feeling uncomfortable.

[288] Of course, aside from all of the above, the accused’s evidence contradicts that of the complainant on whether he digitally penetrated her vagina, and I believe that evidence of the complainant. The accused’s evidence also contradicts that of M.S. on whether the accused admitted at the bar that his hand was down the complainant’s clothing and in her pubic/vaginal area, on top of her panties, and I believe that evidence of M.S. And the evidence of the accused also contradicts that of K.S. on whether the accused ever used his right hand to digitally penetrate his wife, sexually, and I believe that evidence of K.S.

[289] In terms of the evidence of the complainant, I agree with the defence that she was not at all a perfect witness. For example, she had difficulty in cross-examination with describing when precisely it was that the accused asked her if she was feeling uncomfortable. In addition, as another example, she was not constant in her evidence about her degree of certainty of what hand the accused digitally penetrated her vagina with. Also, she admitted to defence counsel that her medications make her memory of some things uncertain, particularly around the periods before and after sleep, and including on the evening in question. As well, her evidence is at odds with that of T. about whether she told him that she is not 100% sure what happened with the accused.

[290] The first two items are minor and immaterial, in my view. The evidence about her memory being impacted by her medications makes sense, but there is a big difference between remembering one thing and remembering your uncle having his finger(s) inside your vagina. I have no doubt that she clearly remembers the latter. On the fourth item, I accept the evidence of T. that the complainant said that. That the complainant denied it is more the result of her not remembering that comment as opposed to her lying to or misleading the Court, in my opinion. It makes sense that she does not remember it as she was very upset and crying and “still processing” things when she was speaking with T. She may not have been 100% sure about all that happened, but I am convinced that she was, and is, 100% sure that the accused digitally penetrated her vagina.

[291] Notwithstanding those imperfections, I believe the complainant. In general, I found her to be a credible and reliable witness.

[292] I find as facts that the complainant dozed off, probably in part because of the drowsiness resulting from her medications, and when she woke-up she found that her shorts had been moved to the side and the accused was “fingering” (digitally penetrating) her vagina. She froze and kept her eyes closed. He continued the digital penetration of her vagina and then stopped and left after she moved her body position.

[293] The complainant was completely unshaken on the core of what happened, and the few difficulties that she had on peripheral matters are not anything unusual, even on the evidence of the defence expert, Dr. Gojer, whose evidence I accept.

[294] I disagree, respectfully, with the defence submission that the evidence of the complainant was “self-contradictory” (page 2 of the defence closing submissions), beyond what is noted above, or that she had a motive to fabricate, or that her evidence does not make sense.

[295] The defence wants this Court to gauge the reasonableness of what the complainant did on the night in question, and after leaving the house, based on what she would have been expected to have done. That is a major theme throughout the closing submissions of the defence.

[296] There is real danger in doing that, however. It invites the Court to engage in speculative and impermissible stereotypical reasoning. She would not have texted the accused the next day and said all was “good”, for example, if she had in fact been sexually assaulted by the accused the night before. I simply do not accept that proposition. There is no “normal” or usual or expected manner of behaviour of a victim of sexual assault. Perhaps she was afraid of the accused’s reaction, as she alluded to during her trial testimony when she stated that she chose to return to the couch after the smoke outside because she was afraid of “repercussions” if she did otherwise.

[297] Besides, the after-the-fact evidence cuts both ways, and in fact more strongly in favour of the Crown. This young woman left the house of her aunt, for the first time ever, in the middle of the night, to be picked-up by her friend at a place away from the house. She was crying. She was very visibly upset. That evidence of T., which evidence I accept, is more consistent with the complainant’s evidence than it is with that of the accused.

[298] As for the complainant’s history of mental health challenges and her medications that she took that evening, none of that causes this Court to question the veracity of her evidence.

[299] A person with mental health struggles is no less worthy of belief simply because of those difficulties. My assessment of the complainant’s evidence would be no different even if I had been told that she had been diagnosed with BPD. As for her medications, she was honest and straightforward with the Court. They cause her drowsiness. There is no basis for this Court to think that the medications so adversely impacted her level of alertness that she cannot be trusted to say whether the accused had his finger(s) inside her vagina.

[300] There is absolutely nothing in the evidence of Dr. Gojer that causes this Court any hesitancy in accepting the evidence of the complainant. Nothing at all. I would say the exact same thing even if I had been told that the complainant was diagnosed with BPD. As Dr. Gojer himself stated, not all persons with BPD are liars. Not all of them make false complaints.

[301] Concerning M.S. and K.S., I respectfully disagree with the defence submissions that K.S. was “a motivated, adverse witness” (paragraph 40 of the defence closing submissions) or that M.S.’s evidence was “unreliable on significant aspects” (page 10 of the defence closing submissions).

[302] This Court did not perceive K.S. to be a malicious, biased, or unfair witness. She was clear in stating that the marital separation was an amicable one. Her evidence, not disputed by

the accused, was that there is no family court proceeding. There is no evidence that that there is any acrimony between K.S. and the accused regarding financial, property, or parenting issues. The undisputed evidence is that the accused is seeing the children on a regular basis. K.S. freely admitted the substantial home renovation work that the accused had done, and there is no evidence that the accused is seeking some compensation for that from K.S. There is no evidence that there is any friction between the two of them concerning the prenuptial agreement.

[303] There is simply no basis for the Court to conclude that K.S. tailored her evidence in order to gain some advantage over the accused.

[304] To the contrary, some of K.S.’s evidence was favourable to the accused. For example, in direct examination, she testified that she saw nothing unusual in the interactions between the accused and the complainant on the date in question. As another example, in cross-examination, she acknowledged that she would have no way of knowing if the complainant’s medications ever caused her to experience delusions or hallucinations, in K.S.’s absence. As a further example, she stated that, although the accused can be quite animated, that does not mean that he is angry. And he has never been violent with K.S. As a final example, she testified that the accused, since separation, has been paying his share of the children’s expenses.

[305] I found K.S. to be a credible and reliable witness. Where her evidence differs from that of the accused, particularly on the issue of their sex life and the accused’s use of his right hand, I accept the evidence of K.S.

[306] With regard to M.S., again, he demonstrated in his evidence no axe to grind or any bias against the accused. They were good friends. There is no evidence that M.S. has, or had, any loyalty to the complainant or to K.S. that is or was greater than what he would have had for his good friend, the accused.

[307] There is nothing in the evidence that would suggest that M.S. was out to get the accused when they met at the bar, with W.M. I accept the evidence of M.S. that he saw the accused’s message on the group chat, “I wish I could tell my side of the story”, and he felt that his good friend deserved the opportunity to do that.

[308] M.S. was careful to not exaggerate his evidence or to overstate the seriousness of what the accused admitted to. He clearly and unequivocally told the Court that the accused did not say that he had digitally penetrated the complainant’s vagina.

[309] M.S. did not pretend to be something he is not. He did not pretend to be some witness who is accustomed to recounting an out-of-court admission by someone accused of a crime. Defence counsel asked him some obvious questions, and M.S. gave the direct answers that one would expect of someone in his position. He has no training or experience in this type of thing. He is an electrician. He surely did not record the conversation and took no notes of it.

[310] None of that causes me any concern about relying upon his evidence. This was his good friend. His neighbour. Someone he had known and spent considerable time with for at least ten years. Someone he invited to his New Year’s Eve party. It does not surprise me one bit that M.S. is certain of what the accused said at the bar; it makes sense that he would remember his good friend saying that he stuck his hand down his niece’s clothing to her pubic area, on top of her panties.

[311] It is not something that one would expect one’s friend to say. That is why he remembers it, especially when the accused did not disclose that part of the interaction that he had with the complainant until M.S. specifically asked his good friend about it.

[312] I do not understand the defence submissions concerning the evidence of M.S. It is submitted that “[t]here are so many glaring inconsistencies that [M.S.’s] evidence should be given no weight” (paragraph 51). Yet the defence points to a few very minor things, none of which has anything to do with the accused’s admission of touching the vaginal area of the complainant, on top of her panties. Things like whether the incident occurred in the basement as opposed to the living room. Or whether the complainant was wearing pants or shorts.

[313] With respect, those are not inconsistencies at all. M.S. was not there. He has no idea where it happened or what happened or what she was wearing. It is unclear whether words like “basement” and “pants” are M.S.’s words or words that he attributes to the accused. It does not matter. What matters is that he heard his good friend, while sharing a drink together at a bar, admit to sexually touching the pubic area of his niece.

[314] I found M.S. to be a credible and reliable witness. Where his evidence differs from that of the accused, particularly on the issue of what the accused said at the bar, I accept the evidence of M.S.

[315] In summary, I reject the evidence of the accused that he did not digitally penetrate the complainant. I do not believe that evidence. I am not left in a reasonable doubt by it, even in conjunction with the other trial evidence. I accept the evidence of the complainant and find that the accused digitally penetrated her vagina while she was asleep and for a short duration after she woke-up. I think that it is likely that the accused did that with his right hand, and on the issue of whether he could or would have used his right hand to do that, I reject the evidence of the accused and prefer the evidence of K.S. I view the accused’s utterances to his good friend, M.S., at the bar as being significant. Those utterances, in my opinion, amount to reliable admissions against the accused’s own interest, and although they do not corroborate digital penetration, they place the accused’s hand down the complainant’s clothing and touching her vaginal area, above her panties.

[316] Finally, there is nothing in the evidence of Dr. Gojer that changes my view of the credibility and/or reliability of the complainant’s evidence. I would be prepared to assume, for the sake of the discussion, that she had been diagnosed at the time of the incident with BPD. She was a self-cutter. She had tried to commit suicide. She had been hospitalized for mental health crises. She was on medications that caused her drowsiness. She took the medications that evening, and she was drowsy that evening.

[317] All of that said, I believe her.

VIII. Conclusion

[318] This Court finds the accused, J.D., guilty of sexual assault.

[319] We will discuss a date for sentencing and whether either side is requesting the preparation of a presentence report.

Conlan J.

Released: November 17, 2022

I. The Charge

II. The Trial

III. The Issue

IV. Our Criminal Justice System in Canada

V. What Happened in the Living Room on the Date in Question, according to the Complainant and the Accused

Examination-in-chief of the Complainant: What Precipitated the Alleged Sexual Touching

Examination-in-chief of the Complainant: the Alleged Touching, and then the Alleged Sexual Touching

Cross-examination of the Complainant

Re-examination of the Complainant

The Evidence of the Accused

Direct Examination

Cross-examination

The Ruling of the Court on the use of the Accused’s prior voir dire evidence during cross-examination at trial

More Cross-examination

Re-examination

VI. Other Evidence at Trial

The Evidence of the Complainant’s Friend, T.

The Evidence of the Accused’s Former Friend, M.S.

The Ruling of the Court on the admissibility of the Accused’s alleged statements made to M.S.

The Evidence of the Accused’s Wife/the Complainant’s Aunt, K.S.

Direct Examination

The Ruling of the Court on the admissibility of the Accused’s alleged statements made to K.S.

Cross-examination

Re-examination

The Evidence of Dr. Julian Gojer, Defence Expert Witness

The Ruling of the Court on the admissibility of Dr. Gojer’s evidence

VII. This Court’s Assessment of the Evidence and Findings of Fact

Accepting All, Some, or None of a Witness’ Evidence

There is More Than One Route to Liability in This Case

The Essential Elements of the Offence of Sexual Assault

The W.D. Instruction

The Touching of the Complainant’s Breast

The Fondling of the Complainant’s Breast for Several Minutes

The Digital Penetration of the Complainant’s Vagina

VIII. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 3