Court File and Parties

Court File No.: CR-22-193 Date: 2023-06-23 Superior Court of Justice - Ontario

Re: R. v. J.C.

Before: Justice D. A. Broad

Counsel: Sean Bradley, for the Crown Peter Boushy, for the Accused

Heard: March 20, 21 and 23, 2023

Reasons for Decision

(Orally)

[1] The accused J.C. is charged with:

1. Assault on A.T. contrary to section 266 of the Criminal Code. The Amended Indictment states a charge period for this count of October 1, 2016 to January 1, 2019; and
2. Sexual assault on A.T. contrary to section 271 of the Criminal Code, with a charge period in the Amended Indictment of October 1, 2015 to January 1, 2019.

[2] The complainant A.T. and the accused J.C. commenced a romantic relationship in the summer of 2011 and resided together, with some possible interruptions, from then until sometime in January 2017 when they ended their relationship. They had one child together J. (initial of surname undisclosed) who is currently 9 years of age.

[3] The Crown led evidence that the assault alleged in count 1 of the Amended Indictment occurred in October 2016 and consisted of J.C. choking A.T. by placing and holding both hands on her throat during an altercation in the basement of the residence occupied by A.T.’s father. The two of them resided at that residence, at least on a part-time basis.

[4] The Crown led evidence that the sexual assaults alleged in count 2 of the Amended Indictment occurred on three separate unspecified dates in 2015. A.T. alleged that J.C. digitally penetrated her vaginally on two occasions without her consent while she was sleeping and that he attempted to penetrate her vaginally with his penis on a third occasion without her consent, also while she was sleeping.

Basic Principles

[5] It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown.

[6] J.C. is presumed to be innocent of the charges, unless or until the Crown has proven each of the essential elements of the individual counts in the indictment beyond a reasonable doubt.

[7] Reasonable doubt is not far-fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In order to convict him it is not enough to find that J.C. probably or likely committed the offences with which he is charged. However, the Crown is not required to prove with absolute certainty that he committed the offences, but the level of standard of proof is closer to certainty than it is to probability.

[8] The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.

Principles Governing the Assessment of the Evidence

[9] Recognizing the distinction between credibility and reliability is essential to a proper analysis of a witness' evidence.

[10] As confirmed by Watt J.A. in R. v. C. (H.) 2009 ONCA 56 (Ont. C.A.) credibility has to do with a witness' veracity, whereas reliability has to do with the accuracy of the witness's testimony involving his or her ability to accurately observe, recall and recount events in issue. Veracity refers to the truthfulness or honesty of the witness. Although a witness whose evidence on an issue is not credible cannot give reliable evidence on the same point, credibility is not a substitute for reliability. A credible witness may be honestly mistaken and may thereby give unreliable evidence.

[11] The paramount question is whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of the accused. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence of the accused and the Crown's evidence, as such an approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt (see R. v. Vuradin, 2013 SCC 38 (S.C.C.) at para. 21).

[12] In the case of R. v. Nyznik, 2017 ONSC 4392 at para. 12 Justice Molloy offered the following important observations:

…the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from the complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other — the classic "he said/she said" scenario. In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen in the context of all of the evidence, raises a reasonable doubt as to his guilt. It is possible that the judge might not fully believe the defendant's version of the events, and might find the complainant's version to be more credible, but still be uncertain as to what actually happened. In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant's story is more plausible or more believable than that of the defendant.

[13] In the case of R. v. Williams, 2010 ONSC 184 Hill, J. reinforced the following principles at paras. 55-57:

a) The evidence of a single witness may be capable of raising a reasonable doubt. b) A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt. c) Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution's ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused's evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied, on the whole of the evidence, that there exists no reasonable doubt as to the guilt of the accused. d) A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities and improbabilities, inconsistencies within a witness' evidence, how a witness' version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, and witness demeanour.

[14] In my review of the evidence that follows, it is possible that reference may be made to the absence of evidence on a particular subject or issue. Any such comment or observation should not be interpreted as a shift of the burden of proof to the accused or a requirement that he offer evidence.

[15] Although it is fundamental that an accused is not required to testify, where he chooses to do so, as J.C. did in this case, the law as confirmed in the case of R. v. W. (D.), [1991] 1 S.C.R. 742 (S.C.C.) requires that I take the following approach:

(a) if I believe J.C.'s evidence that he did not commit the offences charged, I must find him not guilty; (b) even if I do not believe J.C..'s evidence, if it leaves me with a reasonable doubt about his guilt, or about an essential element of an offence with which he is charged, I must find him not guilty of that offence; and (c) even if J.C.'s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.

[16] The case of R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) at para. 24 added a fourth important element to the W. (D.) analysis, which logically ought to be second in the order, as follows:

If, after careful consideration of all of the evidence, I am unable to decide whom to believe I must acquit J.C.

[17] In making these findings, I am obliged to assess J.C.’s evidence in the context of the evidence as a whole, rather than in isolation. A trial judge is therefore entitled to reject an accused's evidence based on a reasoned and considered acceptance of the truth of conflicting evidence. Such a finding is as much of an explanation as when a trial judge identifies credibility concerns in an accused's testimony itself. Provided that the principle of reasonable doubt remains central, there is no error in a trial judge articulating that they reject the evidence of the accused based on credible and reliable evidence to the contrary.

(see R. v. Martiuk, 2023 ONSC 414, citing R. v. Hull, [2006] O.J. No. 3177 (C.A.), at para. 5; R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.), at para. 53, leave to appeal dismissed, [2007] S.C.C.A. No. 69; and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 51, 56, and 66)

[18] It is established that it is an error of law to assess a complainant’s credibility in a sexual assault prosecution based on assumptions about how a victim of sexual assault is expected or supposed to react to the assault.

[19] Victims of a trauma like a sexual assault may delay in disclosing the abuse, while others may never disclose it. Reasons for delay are many, and include embarrassment, fear, or guilt. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. Nor is it appropriate to assume that a victim of sexual assault will subsequently avoid their abuser. The mere absence of avoidant behaviour by a complainant cannot form the basis of a credibility assessment leading to reasonable doubt.

(see R. v. Martiuk, 2023 ONSC 414 at para. 86, citing R. v. D.D., 2000 SCC 43 at para. 65 and R. v. A.R.D., 2017 ABCA 237 at para. 58, aff’d 2018 SCC 6)

The complainant’s evidence in chief

[20] The complainant A.T. testified that she first met J.C. at a golf course where she was employed in the summer of 2011. The relationship developed and they moved in together in December 2011 upon both becoming employed as superintendents of an apartment building in Hamilton, Ontario.

[21] A.T. subsequently moved out of the apartment to live with her father in Cayuga, Ontario in 2012 when she obtained employment in a doctor’s office. She and J.C. remained romantically involved, seeing each other on weekends. Shortly after moving she found out that she was pregnant. A.T. and J.C.’s son J. was born in 2013.

[22] A.T.’s father sold his house in Cayuga and A.T. moved with him to her grandparents’ home in St. George, Ontario. During the time that she was on maternity leave she stayed with J.C. for a few days at a time, describing the arrangement as “bouncing back and forth” between their residences.

[23] In 2015 J.C. was residing in Kitchener and slept over at A.T.’s residence in St. George two to three nights per week. A.T. resided with her son J. in the basement of the bungalow home. The basement space was three-quarters finished.

[24] A.T. described an incident in 2015 when J.C. was sleeping over with her in the same bed. She woke up in the night to discover that J.C. was using his fingers to penetrate her. She pushed his hand away and said “what the f**k.” to which J.C. responded “you were getting wet so I thought you were enjoying it.” She stated that she slapped his hand and rolled over with her back facing him and fell back asleep. There was no further conversation between them regarding the incident.

[25] The complainant testified that there had been no conversation between her and J. C. prior to going to sleep that night about engaging in sexual activity and she never consented to any sexual activity that evening.

[26] The complainant testified that a few months later a similar incident happened, also in the basement of the home in St. George. She was sleeping and woke up to find that J.C. was using his fingers to penetrate her. She immediately said something along the lines of “what the f**k” or “what are you doing?”

[27] A.T. reported that J.C. stated “you were moaning. I thought you were enjoying it” to which she responded, “why would I be enjoying something if I was dead asleep.” She slapped his hand away at which point he stopped the activity. She turned over with her back to him and went back to sleep.

[28] A.T. was in the habit of going to bed wearing a T-shirt or tank top with underwear and pyjama bottoms. She stated that J.C. had put his hand down her pants and under her underwear.

[29] As with the first incident, A.T. testified that prior to going to bed on the second evening there had been no discussions about engaging in any sexual activity and she did not consent to engage in any sexual activity that night.

[30] A.T. testified that approximately six months after the second incident described above, she was sleeping in the same bed with J.C. At approximately 1:00 AM she awoke when she felt the pressure of someone on top of her. She was laying on her back. She discovered that J.C. was on top of her with his underwear off. His penis was hard and he was attempting to penetrate her vagina. She stated that she did not know how he got her pants and underwear off. She pushed J.C. off and said, “what the f**k, I’m sleeping”, to which he responded, “I thought you were awake.” There was no other conversation between them.

[31] On a Sunday in October 2016, J.C. was at the residence in St. George with A.T. and their child, having stayed over the night before. J.C. had brought his gaming system and a video game that he was playing in the basement bedroom. Her father’s girlfriend J. F., who was in the custom of staying over at the St. George residence on weekends, was upstairs.

[32] While J.C. was playing the video game, the parties’ child J., who was almost four years of age at the time, walked in front of the video game causing J.C.’s game character to “die” which upset J.C. She stated that J.C. “swatted” J. on the back of his head. The child went to A.T. who was on the couch. She said to J.C. “what the f**k are you doing - do not put your hands on him.” She stated that she and the child began to proceed up the stairs. As they were doing so, J.C. started yelling at her. She was unable to recall what he said. She turned around and J.C. then got close to her. She was almost at the door into the landing to the stairs. The child continued walking. She stated that J.C. pushed her against the wall with his forearms and used his body weight to push her against the wall which made a “thud” sound. He then wrapped both his hands around her neck. She stated that her airway was starting to close. She tried to push him off her with her hands.

[33] A.T. stated that she heard J.F. call to the child saying, “J. come here.” At that point J.C. released her. A.T. said to him “get the f**k out of my house” at which point J.C. went upstairs and out the door. Two days later J.C. called her and asked to meet. When they later met J.C. apologized to her. At the conclusion of the conversation J.C and A.T. mutually decided to maintain their relationship.

[34] When asked if she suffered any injuries in the assault A.T. testified that there was a “little bit of a red mark that disappeared.”

[35] A.T. testified that she ended her relationship with J.C. at the end of January 2017 following a verbal argument.

[36] A.T. testified that she initiated proceedings against J.C. in Family Court in approximately April 2017. Initially she sought only sole custody of J. and was not concerned about child support, as J.C.’s employment was in her words “very spotty.” In September 2017 J.C. agreed to her request for sole custody of the child. They agreed that J.C. would have access to J. every other weekend from 6 PM on Saturday to 2 PM on Sunday.

[37] In 2018 A.T. initiated further court proceedings in which she sought child support from J.C. She stated that the only factor that triggered the second proceeding was advice she received from friends that she should pursue an order for child support.

[38] At the conclusion of a court appearance in the second proceeding, J.C. made a comment to A.T. about whether she was ever going to let him see his son, to which she responded “I have never stopped you.” She stated that after the attendance in court J.C. followed her to her car and questioned her about why they had broken up. She replied that it was because he had choked her in front of her son. She testified that he responded, “I wish I had choked you longer until you stopped breathing.”

[39] A.T. testified that she felt threatened by J.C. and went to police that night to report the sexual assault and assault incidents. She stated that her objective in making the reports to the police was to obtain a restraining order against J.C.

[40] Following A.T.’s report to police J.C. was charged with the offences before the court. She stated that she never made the Family Court aware of the charges, however, she did speak with her lawyer about them.

Cross Examination of the Complainant

[41] On cross-examination A.T. stated that she went to police with respect to her allegations against J.C. immediately after the court proceeding on November 5, 2019. She gave a videotaped statements to police on November 15, 2019 and on December 9, 2019.

[42] A.T. stated that she believed that the sexual assaults occurred in 2015 but could not remember when during that year. She believed that the choking incident occurred in 2016. She broke up with J.C. at the end of January 2017.

[43] A.T. stated that the choking lasted about 30 seconds. During that time, she heard J.F. calling for the child J. When she was asked whether J.F. heard what was going on, she responded that J.F. heard J.C. yelling at her but did not hear her, as she was unable to speak.

[44] A.T. stated that her back was against the wall between the two doors leading to the steps. J.F. was at the top of the steps. There were approximately 20 steps leading from the main floor to the basement. J.F. was unable to see the child J. going up the stairs.

[45] A.T. testified that J.F. did not descend the stairs to separate her and J.C. She stated that J.F. heard her bounce against the wall but did not see what was happening.

[46] A.T. denied that she made up the allegations of sexual assault to gain leverage in the family court proceedings or out of an element of spite.

[47] A.T. stated that she did not meet with her family law lawyer before she went to the police following the altercation with J.C. on November 5, 2019. She reported that she went to the police on the next day. Her lawyer then followed through with obtaining the restraining order. She stated that it was her lawyer who suggested she seek a restraining order against J.C.

[48] A.T. confirmed that there were no independent witnesses to the alleged sexual assaults in 2015 and no eyewitnesses to the alleged choking incident in October 2016. The only independent witness, J. F. was a witness only to what she heard, not anything that she saw.

Examination in chief of J. F.

[49] J.F. came to know the complainant A.T. through her relationship as the former fiancé of A.T.’s father D.T. J.F. and D.T. became involved in a romantic relationship in December 2015. Although she primarily resided in Hamilton, she spent weekends at the residence in St. George.

[50] She described her relationship with A.T. during the time that she was involved with her father as that of “mother and daughter.” A.T. did not reside with D.T. when they first met. She got to know A.T. better when A.T. and J.C. moved into the St. George residence.

[51] J.F. stated that, to her knowledge, J.C. did not spend every night at the St. George residence. He was there through the week and on weekends he regularly went on “benders.”

[52] J. F. stated that she ended her relationship with D.T. one and a half years prior to the trial. Her relationship with A.T. since that time has been “non-existent”. Their relationship began to deteriorate about 6 to 7 months before the end of her relationship with D.T.

[53] J.F. thought that the choking incident took place in September or October in either 2016 or 2017.

[54] J.F. was at the residence in St. George on the date of the incident. A.T., J.C. and the child J. were also there at the time. D.T. was not present.

[55] The home was a bungalow with an open concept kitchen/living room on the main floor. A hallway led to stairs to the basement level. She described the basement as “huge” and “finished.”

[56] J.F. stated that on the date of the incident she was in the kitchen cleaning up from breakfast when she heard some screaming which she described as “arguing back and forth.” She decided to let A.T. and J.C. “work it out” and went to the bedroom to make the bed. She then heard the child J. crying. She described it as “scared crying” and “loud.”

[57] The door past the foyer area at the bottom of the stairs was open. J.F. stated that she heard A.T. say in a loud and panicked voice “let go of me. Stop, you’re hurting me. Let go.” She was in the upstairs bedroom when she heard this. She went out into the hall and yelled “what the f**k is going on?” She stated she heard A.T. yell out again “let go, let go.” At this point she was standing right above J.C. and A.T., looking down the stairs, but was unable to see anything.

[58] J.F. said that she then descended the stairs and turned the corner. She observed J.C. standing against the corner to her left with A.T. to her right in the “actual hall area” of the downstairs space. She observed the child J. between them. She stated that the distance between J.C. and A.T. was 2 feet and the child was “squished right in there screaming.”

[59] J.F. could not recall J.C. saying anything but saw that he had both hands around A.T.’s throat and that A.T.’s hands were flailing. She stated that she grabbed the child J. and “kind of shoved him” behind her and told him to go upstairs and that she would be there in a minute. The child went up the stairs as instructed.

[60] J.F. testified that she positioned herself between J.C. and A.T. and pushed them away from one another. J.C. went to sit down on the bed and she sent A.T. upstairs to D.T.’s room. She stated that she then spoke to J.C.

[61] Ms. Frayne stated that when she observed A.T. after the incident she did not observe any injuries on her.

[62] J.F. called D.T. to come home and upon arrival he helped her get the child J. dressed. She then went with A.T. and the child to D.T.’s sister’s residence. She stated that she does not remember J.C. being at the home after that.

Cross Examination of J. F.

[63] J.F. testified on cross-examination that, in addition to being a “hearing witness” and an “eyewitness” to the alleged choking incident, she was also a “physical witness” through her involvement in pushing J.C. and A.T. apart and sending A.T. up the stairs. In pushing them apart she had one hand on A.T. to her right and her other hand on J.C. to her left. J.F. testified that she told J.C. to take his hands off A.T. and instructed A.T. to shut up and go upstairs.

Re-examination of J.F.

[64] On re-examination J.F. described the way in which A.T. was flailing her arms during the altercation. She stated that A.T. was “away from” J.C., swinging her arms, but did not know if she was hitting him.

Examination in chief of J.C.

[65] J.C. is currently 31 years of age and resides in Hamilton. He works as a resident manager for a community housing organization. He has worked as a housing superintendent in various positions throughout the City of Hamilton over the past ten years. He has a high school level education.

[66] J.C. stated that he met the complainant A.T. in September 2011 at A.T.’s place of employment at a golf course. They connected immediately and within a week A.T. moved in with him in his parent’s residence. Within three months they obtained positions as building superintendents for a property in Hamilton. They subsequently left this employment and moved to A.T.’s parents’ home in Cayuga and then into a three-bedroom townhouse in Hamilton where their son J. was born.

[67] They subsequently moved back with A.T.’s parents in Cayuga, then to Kitchener for approximately one year, and finally moved in 2015 or 2016 to A.T.’s grandfather’s residence in St. George where her father also resided.

[68] J.C. denied that the three sexual assaults alleged by A.T. happened at any time while he and A.T. were together. He denied that any sexual assaults occurred in 2015 or at any other time.

[69] J.C. confirmed that he and A.T. separated in 2016 or 2017 on the day of the verbal argument that A.T. testified to.

[70] Prior to the argument that led to the separation, J.C. stated that there were no signs of any issues between A.T. and him aside from “little arguments here and there.”

[71] J.C. testified that he had a verbal altercation with A.T. on November 5, 2019 in the courthouse parking lot following an appearance in connection with the second Family Court proceeding in which A.T. was seeking child support.

[72] J.C. denied telling A.T. that he wished that he had kept choking her until she stopped breathing. At the time he had asked her to produce documents proving that she had paid rent to her father. He told her that that he was “sick of her lies.” A.T. had represented to the court that she had been paying rent to her father to bolster her claim for child support but was unable to produce receipts for the payments. He acknowledged that he had advised her after the first court attendance that he was “not paying a dime until I get proper visitation with my son.”

[73] J.C. testified that, in response to his comment that he was sick of her lies, A.T. told him “you want to see lies - I will show you f**king lies” before speeding off in her car.

[74] At the next court attendance following the parking lot altercation police arrested J.C. at the Family Court. He received no notification of the next court date following his arrest and, as a result, he did not participate further in the proceeding respecting child support.

[75] J.C. testified to the events relating to the altercation between himself and A.T. in the basement area at the St. George residence in which A.T. alleged that he had choked her.

[76] He stated that he was playing a videogame “Call of Duty” in front of a computer screen. The child J. was running back and forth in front of the screen. He stuck his arm out and said to the child “J. – no.”. The child sat down and began crying. A.T. turned around and asked “are you hitting him? How do you like getting hit?” J.C. responded that he had not hit the child but had stuck his arm out.

[77] A.T. began flailing her arms towards him. At that point J. C. grabbed her by her forearms and crossed her arms on her chest to stop her from hitting him.

[78] While the two of them were arguing, A.T. screamed “let go,” to which he responded, “if you are going to stop hitting me, I will let go.” J.C. denied ever choking A.T. by holding her neck.

[79] J.C. stated that J.F. remained at the top of the stairs and did not come down to the lower level. The child J. was crying and A.T. was telling him to let her go. J.F. called the child J. to come up the stairs to where she was.

[80] J.C. testified that he and A.T. remained in the basement just inside the doorway. He was standing against the wall and was holding A.T.’s arms. The child was between them and moving towards the stairs in response to J.F.’s call to him. J.C. and A.T. tussled back-and-forth. Each of them had their backs against the wall at different times.

Cross-examination of J.C.

[81] J.C. denied A.T.’s suggestion that he had not moved with her into her grandfather’s residence in St. George where her father also resided. He maintained that they both moved all of their belongings into that residence and that he lived there except when he went out on two or three Fridays a month with friends.

[82] Prior to moving to St. George, J.C. and A.T. resided together in Kitchener. She was going to school in Simcoe, Ontario and they moved to St. George to be closer.

[83] The basement space was an open concept with a room for the child J. There was a door at the bottom of the stairs where there was a foyer. He and A.T. treated the basement as their private space. They closed the door at night or during private times. A.T.’s father D.T. and J.F. would knock before entering. He and A.T. slept every night in the same bed except when he went out on certain Friday nights.

[84] J.C. denied making the comment “I thought you were wet” during the initial alleged sexual assault. He also denied the second alleged incident and denied the suggestion put to him by Crown counsel that it had occurred but he had not realized that A.T. was asleep at the time.

[85] In respect of the third alleged incident, J.C. denied that he had removed A.T.’s pants by any means or had attempted to initiate sexual intercourse in the way that she described.

[86] J.C. stated that he first learned of the allegations of sexual assault from the police when they arrested him at the courthouse.

[87] Respecting the incident of the alleged choking, J.C. agreed that he had been playing a video game. The child J. was running back and forth in front of the computer screen and he told him to stop. A.T. got up off the couch screaming at him “you hit him. How do you like it?” She began flailing her arms. J.C. testified that he did not grab A.T. around her neck but grabbed her by her arms.

[88] At the time of the first Family Court proceeding J.C. did not contest A.T.’s claim for sole custody of J., with access to him. At the time he did not have a permanent residence and he understood that A.T. had a home for the child. He described the first Family Court proceeding as “very straightforward and agreed-upon.”

[89] J.C. stated that initially he had access to the child on alternate weekends, with the parameters not defined. A.T. decided to change his access time to alternate Saturdays at 6 PM to Sunday at 2 PM unless she had other plans. J.C. did not have a vehicle and had no ability to pick the child up for access visits. He denied that he cancelled visits but stated that she would offer excuses for not bringing the child to him.

[90] J.C. stated that A.T. commenced the second Family Court proceeding in which she sought child support in late 2018 or 2019.

[91] J.C. acknowledged that he did tell A.T. that he would not pay a dime in support until he got “proper visitation” with their child.

[92] At the first appearance in the family proceeding concerning support, he attended with duty counsel. At the second appearance he was escorted out by police after being charged with the offences before the court. He was unable to return to Family Court to obtain a third attendance date. Although he became aware of deductions from his paycheque, he never received a formal order requiring him to pay child support.

[93] J.C. agreed with Crown counsel’s suggestion that the second set of court proceedings were important to him, and that he had intended to strongly contest the lack of documentation produced by A.T. and his lack of access to the child.

[94] The conditions of his release prevented any contact with A.T. or any access to the child. As a result, he never returned to the Family Court. He testified that he was told that he was not permitted in the court room because A.T. would be there. He was not made aware of any further court proceedings and had no idea how to proceed.

[95] When he did telephone the Family Court to enquire about the next court date, he was advised that the matter had been concluded. He described the situation as an “overwhelming time.” In addition to the Family Court proceeding, he was attempting to ensure that the criminal charges against him would not cause him to lose his job.

[96] J.C. denied that he asked A.T. why they had broken up during the altercation in the parking lot following the second court appearance. He was in another relationship at that time. He also denied that A.T. told him that the reason for the breakup was that he had choked her in front of their son.

[97] J.C. did agree that he asked A.T. “are you going to let me see my son” and that she had responded “I never stopped you from seeing your son.”

[98] J.C. disagreed with the characterization of the altercation in the parking lot as “heated.” Although the two were bickering, there was no yelling or screaming.

[99] He confirmed that A.T. told him “if you want lies, you’ll see lies.” He denied that he mentioned anything about choking, nor did he make any other threats towards her.

[100] J.C. stated that he had never been informed of a Family Court restraining order. The first he heard about a restraining order having been issued against him was during A.T.’s testimony at trial.

Discussion

(a) Sexual assault allegations

[101] It is appropriate to address the allegations in the second count in the indictment relating to the three alleged sexual assaults first, as they were alleged to have occurred on unspecified dates in 2015, whereas the assault by choking incident was alleged to have occurred in 2016.

[102] The allegations respecting the sexual assaults were first brought to J.C.’s attention when he was arrested at the courthouse in or about November 2019.

[103] J.C.’s evidence in response to the allegations consisted of straightforward denials that they took place with little elaboration. In my view this is not surprising. Speaking generally, the failure of a person accused of historical sexual assault to give more than a simple denial of wrongdoing is not an indication that his evidence is unworthy of belief. As Finlayson, J.A. observed in R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.) at para. 52 “an innocent man is unlikely to have a detailed memory of distant uneventful occasions.”

[104] I find that J.C. testified in a straightforward manner and his evidence was internally consistent. In submissions Crown counsel acknowledged that J.C.’s testimony was unshaken in respect of its key elements.

[105] Defence counsel submitted that, at the time that A.T. made her report of the three alleged 2015 sexual assaults and the alleged 2016 assault by choking, she had a motive to fabricate the allegations in order to gain leverage or an advantage in the ongoing Family Court proceedings respecting child support. I am obliged in these circumstances to look at the evidence and determine whether there is such evidence of a motive to fabricate (see R. v. Ignacio, 2021 ONCA 69 at para. 35).

[106] In R. v. Batte, [2000] O.J. No. 2184 (C.A.), Doberty, J.A. stated as follows at paras. 120-121:

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility.

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

[107] A.T. made her complaint to police while the second Family Court proceeding was ongoing and was triggered by her objective to obtain a restraining order against J.C. in that proceeding. Gaining an advantage in the Family Court proceeding may be regarded as a possible motive to fabricate A.T.’s reports to the police respecting the three sexual assaults alleged to have taken place in 2015, as well as the choking incident alleged to have taken place in 2016. However, I am unable to make a finding that a desire to gain such advantage actually operated as a motivator, leading her in fact to fabricate her story to police.

[108] In the case of R. v. Sanchez, 2017 ONCA 994, Nordheimer, J.A. observed at para. 25:

It is recognized that whether a person does or does not have a motive to lie is not generally a reliable basis upon which to assess credibility. Certainly the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility. Consequently, it is generally an unhelpful factor in assessing credibility: R. v. L. (L.) (2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413, at para. 44.

[109] Although the foregoing passage primarily addresses the fact that the absence of any apparent motive to fabricate may be an unreliable marker of credibility of a complainant, the converse is also true – the existence of an apparent motive to fabricate does not inexorably lead to a conclusion that a witness is not credible. In the case at bar A.T. denied that she was making up the allegations of sexual assault to gain leverage in the Family Court proceedings or out of spite.

[110] In my view, the existence of an apparent motive to fabricate on A.T.’s part connected to the family proceeding is of little assistance in determining whether the Crown has discharged its onus of proving that J.C. committed the alleged sexual assaults against A.T. in 2015.

[111] The elements of the offence of sexual assault require proof beyond a reasonable doubt that J.C. intentionally applied force to A.T., that A.T. did not consent to the force that J.C. applied, that J.C. knew that A.T. did not consent to such force, and that the force that J.C. intentionally applied took place in circumstances of a sexual nature. In considering the very brief evidence relating to the three alleged sexual assaults in its totality, I am unable to decide whom I believe. It therefore necessarily follows that the Crown has failed to prove beyond a reasonable doubt that J.C. committed the three sexual assaults alleged to have been committed by him in 2015.

(b) Choking Allegation

[112] J.C. testified that at no time during the altercation with A.T. in the basement space of the St. George residence did he choke A.T. or place his hands on her throat. He testified that when she began flailing at him in response to her belief that he had struck their child J., he grabbed her by the forearms across her chest to restrain her from striking him. He testified that A.T. was yelling “let go” as he was holding her arms.

[113] I find, as acknowledged by Crown counsel, that J.C.’s testimony respecting what occurred between him and A.T. in their altercation was not undermined or successfully challenged on cross-examination.

[114] I find that the evidence led by the Crown respecting what took place during the altercation and, in particular, whether J.C. choked A.T. by applying force to her neck was contradictory. Whereas A.T. maintained that while she was being choked by J.C. her airway was blocked and stated that she was unable to speak. J.F.’s testimony, consistent with that of J.C., was that A.T. uttered “let go of me. Stop, you’re hurting me. Let go” followed by “let go, let go” after J.F. enquired what was going on.

[115] Although J.F. testified that she observed J.C. with his hands on A.T.’s throat after she had descended the stairs, A.T. and J.C. were consistent in their testimony that J.F. had not descended the stairs but remained at the landing at the top of the stairs and would not have had a vantage point to see the altercation from where she was situated. A.T. agreed that J.F. was only a “hearing” witness not a “hearing, seeing and participating” witness as J.F. said she was. J.F. also testified that she positioned herself between J.C. and A.T. to separate them after descending the stairs, whereas neither J.C. nor A.T. testified that she had done this.

[116] Applying the W. (D.) analysis, given the material inconsistencies in the Crown’s evidence and the fact that J.C.’s testimony was unshaken on cross-examination, I find that his evidence raises a reasonable doubt.

[117] In my view this is not a case in which it is open to the court to reject the accused’s evidence based on a reasoned and considered acceptance of the truth of conflicting evidence. The conflicting evidence is marked by inconsistency as set forth above.

[118] I find that the Crown failed to discharge the onus on it of proving beyond a reasonable doubt that J.C. committed an assault on A.T. by choking.

Disposition

[119] I therefore find the accused J.C. not guilty of both counts in the Indictment.

D.A. Broad, J. Date: June 23, 2023