ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-247-21

DATE: 2024/03/01

BETWEEN:

HIS MAJESTY THE KING

– and –

C.G.

Defendant

Jennifer Moser, for the Crown

E. Chan, for the Defendant

HEARD: June 19-22 and July 25, 2023

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information

that may identify the person described in this judgment as the complainant may

not be published, broadcasted or transmitted in any manner. This judgment

complies with this restriction so that it can be published.

JUSTICE I.F. LEACH (oRALLY)

Introduction

1The accused in this matter, Mr C.G., is charged with two counts of sexual assault, contrary to section 271 of the Criminal Code, (“the Code”).

2The charges centre on events alleged to have taken place in November of 2019 and January of 2020, involving alleged interactions between Mr G. and the complainant, A.S. – whom I will be referring to hereafter either by her full name or as “Ms S.”, while referring to her mother as such, or by using her mother’s full name, “R.S.”.

Charges and essential elements

3The charges against Mr G., set forth in Counts 1 and 2 of the indictment, read as follows:

1. COUNT 1 – C.G. STANDS CHARGED THAT he, between the 1st day of November in the year 2019 at the City of London in the said region, [i.e., the Southwest Region in the Province of Ontario], did commit a sexual assault on A.S., contrary to Section 271 of the Criminal Code of Canada.

2. COUNT 2 – AND FURTHER C.G. STANDS CHARGED THAT he, between the 1st day of January in the year 2020 and the 19th day of January in the year 2020 at the City of London in the said region did commit a sexual assault on A.S., contrary to Section 271 of the Criminal Code of Canada.

4Before proceeding further, I think it helpful to note and review the essential elements of the sexual assault offences with which Mr G. is charged; i.e., the necessary components of each alleged sexual assault offence which must be proven by Crown counsel beyond a reasonable doubt in order to warrant a conviction of Mr G. in relation to that offence.

5In particular, for me to find Mr G. guilty of sexual assault, in relation to a charged sexual assault offence, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

i. that C.G. intentionally applied force to A.S.;

ii. that A.S. did not consent to the force that C.G. intentionally applied;

iii. that C.G. knew that A.S. did not consent to the force that C.G. intentionally applied; and

iv. that the force that C.G. intentionally applied took place in circumstances of a sexual nature.

6In relation to the first essential element, (i.e., focused on whether Mr G. intentionally applied force to Ms S.):

a. The application of force may be direct, (by the accused using part of his body to apply the force), or indirect, (by the accused using an object to apply the force).

b. The force applied may be violent, or even gentle, with “force” including any physical contact with the complainant; even a gentle touch.

c. To be an assault, however, the accused must have applied the force intentionally, meaning “on purpose”, and not by accident. An accidental touching is not an intentional application of force.

7In relation to the second essential element, (focused on whether Ms S. did not consent to the force that Mr G. may have intentionally applied):

a. Consent focuses on a complainant’s subjective state of mind at the relevant time. In particular, consent requires the voluntary agreement of a complainant to the accused doing what he did, in the way in which he did it, and when he did it. In other words, consent requires that a complainant wanted the accused to do what he did.

b. A voluntary agreement is one made by a person who is free to agree or disagree, of his or her own free will. It involves knowledge of what is going to happen, and voluntary agreement to do it or let it be done.

c. Just because a complainant does not resist or put up a fight does not mean that the complainant consented to what an accused may have done. Consent requires knowledge on the complainant’s part of what is going to happen and a decision by the complainant, without the influence of force, threats, fear, fraud, or abuse of authority, to let it occur.

8In relation to the third essential element, (focused on whether Mr G. knew that Ms S. did not consent to the force that Mr G. may have intentionally applied):

a. This essential element requires Crown counsel to prove the accused’s knowledge, or state of mind, at the relevant time. In particular, Crown counsel must prove beyond a reasonable doubt that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

b. To “know” something is to be aware of it, at the time one does it.

c. There is more than one way for Crown counsel to prove that an accused knew that a complainant did not consent to the force that the accused intentionally applied. In particular:

i. Such knowledge, (i.e., that the complainant did not consent to the accused’s intentional application of force), is proven if I am satisfied beyond a reasonable doubt that the accused was actually aware that the complainant did not consent to the force that the accused intentionally applied.

ii. An accused’s knowledge that the complainant did not consent is also proven if I am satisfied beyond a reasonable doubt that the accused was aware that there was a risk that the complainant was not consenting to the force that the accused intentionally applied, but the accused went ahead anyway, not caring whether the complainant consented or not. In other words, an accused’s knowledge that the complainant did not consent may be established if the accused was aware of the risk that the complainant did not consent, but went ahead anyway and intentionally applied force, despite the risk. In that regard, the law is clear that silence, passivity, or ambiguous conduct does not amount to consent, and offers no defence. An accused is not entitled to engage in sexual touching to “test the waters”. The law requires evidence of positive consent by the complainant, by words or conduct, to ground any honest belief that the complainant effectively said “yes” through his or her words and/or actions. Without limiting the generality of the foregoing, “no” means “no”, and only “yes” means “yes”, even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one to which a complainant routinely has consented in the past. See R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at paragraphs 19, 47, 49 and 52; and R. v. Goldfinch, 2019 SCC 38, at paragraph 74.

iii. Finally, an accused’s knowledge that a complainant did not consent to the accused’s intentional application of force also is proven if I am satisfied beyond a reasonable doubt that the accused knew he should inquire whether the complainant consented to the force that the accused intentionally applied but did not make the inquiry because he did not want to know the truth about the complainant’s consent. In other words, the requisite knowledge of the accused will be established if he deliberately failed to inquire about the complainant’s consent even though he knew that there was reason to do so.

d. To prove that an accused knew that a complainant did not consent to the accused’s intentional application of force, Crown counsel does not have to prove each basis of knowledge that I have described; i.e., actual knowledge, recklessness, and willful blindness. One such basis of establishing the requisite knowledge on the part of the accused, any one, is enough. It is sufficient if I am sure, on one basis or another, that Crown counsel has proven beyond a reasonable doubt that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

9In relation to the fourth and final essential element of the sexual assault offence, (focused on whether Mr G. intentionally applied force to A. S. in circumstances of a sexual nature):

a. A sexual assault is any intentional application of force, (e.g., any intentional physical contact with another person, even an intentional but gentle touching), which occurs in circumstances of a sexual nature so that the sexual integrity of the complainant is violated.

b. It includes any act that is meant to degrade or demean the complainant for an accused’s sexual pleasure.

c. An intentional touching takes place in circumstances of a sexual nature if I am satisfied beyond a reasonable doubt that the sexual context of the touching would be apparent to any reasonable person who saw it happen; e.g., having regard to such matters as the part or parts of the body the accused touched, the nature of the contact, any words accompanying such actions, the situation in which the assault occurred, and all other circumstances surrounding the conduct.

10Throughout my assessment of whether all essential elements of each sexual assault charge against Mr G. have been established beyond a reasonable doubt, I have regard to all of the principles and comments I have just outlined.

General principles

11Before turning in more detail to the specifics of this case, I also think it helpful to outline a number of additional general principles I bear in mind throughout my approach to this matter; general principles I had occasion to outline in R. v. Ukumu, 2019 ONSC 5626, and in respect of which both defence counsel and Crown counsel expressly indicated their acceptance and agreement.

12As I indicated in R. v. Ukumu, supra, many of those additional general principles are similarly outlined or reflected in comments routinely provided through judicial instructions to jurors, and include the following:

i. First, I have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter, C. G. is presumed to be innocent, in relation to each of the two sexual assault charges in respect of which he has entered a plea of “not guilty”, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to an alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the essential elements of each sexual offence charge against Mr G. that are not admitted, never shifts. In particular, Mr G. has no obligation whatsoever to establish his innocence.

ii. Second, in relation to the “reasonable doubt” standard, and as per the guidance offered by the Supreme Court of Canada in authorities such as R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320:

1. I am ever mindful that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, nor a doubt based on sympathy for, or prejudice against, any person involved in this trial. A “reasonable doubt” is, instead, a doubt that arises logically from the evidence, or the absence of evidence.

2. Moreover, it is not enough for me to believe that C. G. is “probably” guilty or “likely” guilty of an offence. Proof of “probable” guilt or “likely” guilt falls short of proving guilt “beyond a reasonable doubt” and is not proof of guilt beyond a reasonable doubt.

3. On the other hand, I also bear in mind that it is nearly impossible to prove anything to an absolute certainty, that “absolute certainty” accordingly is a standard of proof that is impossibly high, and that Crown counsel is not required to meet that standard of proof.

4. In essence, in order for me to find that Crown counsel has proven beyond a reasonable doubt that C.G.is guilty of a charged offence of sexual assault, I must be sure that Mr G. committed the offence. If, following careful consideration of all the evidence, (including witness testimony, exhibits and any agreed facts or admissions), there remains in my mind a reasonable doubt as to whether Mr G. committed a charged offence, I must find him not guilty of that offence.

iii. Third, as this is a case where the accused chose to testify, such that his exculpatory testimony is pitted against the contradictory and incriminating testimony of the complainant, I am mindful of the considerations emphasized by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. In particular:

1. As emphasized in that decision, a trier presented with such conflicting testimony must not approach the matter as a simple credibility contest; e.g., as if a finding of guilty or not guilty in relation to a charged offence turns on a decision as to whether the complainant or the accused is more believable. Doing so would be quite wrong.

2. At all times, the proper focus must instead remain firmly fixed on whether the Crown has proven the guilt of the accused in relation to a charged offence beyond a reasonable doubt, being ever mindful of the reality that reasonable doubt is something that may arise in various different ways. For example:

a. After careful consideration, if I find myself unable to decide whom to believe, in relation to whether or not a charged offence of sexual assault was committed, Crown counsel will have failed to prove the guilt of the accused beyond a reasonable doubt in relation to that charged offence, and the accused must be found not guilty of that charged offence.

b. After careful consideration, if I believe the exculpatory testimony of the accused in relation to a charged offence, Crown counsel similarly will have failed to prove the guilt of the accused in relation to that charged offence beyond a reasonable doubt, and the accused must be acquitted of that charged offence.

c. Even if I fall short of believing the accused’s exculpatory testimony in relation to a charged offence, after giving the matter careful consideration, if that testimony leaves me with a reasonable doubt as to whether a charged sexual assault offence was committed, the accused also must be found not guilty of that charged offence. In other words, exculpatory testimony may give rise to a reasonable doubt even if it is not positively accepted.

3. And even if I do not believe the accused’s exculpatory testimony in relation to a charged offence, and that testimony alone does not leave me with a reasonable doubt about the accused’s guilt in relation to that charged offence, I may still find the accused guilty of that charged offence only if the rest of the evidence I do accept satisfies me that guilt in relation to that charged offence has been proven beyond a reasonable doubt.

iv. Fourth, how much or little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify, one way or the other. My duty is to consider all the evidence. As the trier, I may decide that the testimony of fewer witnesses – or perhaps just one witness – is more reliable than the evidence of a larger number of witnesses. In other words, my task is to consider carefully the testimony of each witness, and to decide how much or little I believe and accept of what each witness has said. I am not to decide the case simply by counting witnesses. It is the quality of evidence, rather than the quantity of evidence, that determines persuasive force and/or whether or not proof has been established beyond a reasonable doubt.

v. Fifth, on a related note, and as emphasized in decisions such as R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and R. v. Neff, [2012] O.J. No. 5618 (S.C.J.), our law generally does not require corroboration of a complainant’s evidence in order to found a conviction. Moreover, that general principle is reinforced in relation to sexual assault by section 274 of the Code, which specifically indicates, inter alia, that if an accused is charged with sexual assault, no corroboration is required for a conviction. The sworn testimony of a sexual assault complainant, standing alone, may be sufficient to establish guilt in relation to a charged sexual assault offence beyond a reasonable doubt, provided that testimony is found to be credible and reliable. Because the standard of proof beyond a reasonable doubt is a high one, triers of fact frequently may look for corroboration where guilt or innocence hinges on the testimony of a single witness. However, while such evidence is often helpful, it is not a requirement.

vi. Sixth, while there is no prescribed formula or method for assessing the testimony of witnesses, I am mindful of various considerations frequently employed by triers of fact to help decide how much or how little I will believe and rely upon the testimony of any witness - bearing in mind that I am free to accept some, none, or all of the testimony of any witness. In particular such triers routinely consider matters such as the following:

1. whether a witness seemed honest;

2. whether a witness had any reason to not tell the truth, or give evidence more favourable to one side or the other, such as an interest in the outcome of the case;

3. whether a witness had the opportunity and ability to make accurate and complete observations about an event or occurrence addressed in his or her testimony;

4. whether the witness seemed to have a good memory, or any reason to remember or forget certain events or details, (which in turn might depend on such things as whether the event or occurrence addressed by testimony was something unusual or routine, or not of any obvious importance at the time);

5. whether any memory difficulties seemed genuine or made up as an excuse to avoid answering questions;

6. whether the testimony given by the witness was really what he or she personally saw or heard, or an account possibly based on information or statements provided by others;

7. whether the testimony of a witness seemed reasonable and consistent as he or she gave it, and whether it was similar to or different from what other witnesses may have said about the same events;

8. whether there were any inconsistencies within the testimony of a witness, or with earlier statements or actions by the witness, and if there were, whether they related to things that were important or minor details, reflected honest mistakes or deliberate lies, had any sensible explanation, or really made the main points of his or her testimony more or less believable and reliable; and

9. the manner or demeanor of a witness while he or she was testifying – while nevertheless also bearing in mind that the existence of many variables, (such as the inherently uncommon experience of testifying, and the different and varied abilities, values, and life experiences of individual witnesses), prevents demeanor from ever being the only or most important factor in deciding what testimony to accept.

13The general principles and considerations I have mentioned so far are applicable to all criminal cases, regardless of the nature of the particular offence or offences charged against an accused.

14However, our courts also have emphasized certain additional principles and considerations applicable to cases involving allegations of traumatizing offences such as sexual assault. In that regard, and as emphasized, in authorities such as R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), affirmed R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, and R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833 (C.A.):

a. Our courts now reject dated stereotypical assumptions and myths of how persons react to such trauma, and instead recognize that there actually is no inviolable rule on how people who are the victims of sexual assault will behave.

b. In many cases, the reality of such variable responses has shaped how our courts now address the possibility of delayed reporting of offences such as sexual abuse and sexual assault. In particular, our courts now recognize that some victims will report such an offence immediately, while other victims may delay disclosure for a substantial period of time for a variety of legitimate reasons, such as embarrassment, humiliation, lack of understanding or knowledge, a desire to avoid the destruction of domestic or personal relationships, and/or fear of reprisals from the accused. Indeed, some victims may choose to never disclose such abuse voluntarily, although it occasionally comes to light in other ways. For such reasons, a delay in disclosure of sexual misconduct, standing alone, will never give rise to an adverse interference against the credibility of a complainant.

c. For similar reasons, it is an error of law to draw adverse interferences against the credibility of a sexual assault complainant by purporting to measure his or her reactions to such an alleged offence by reference to some misguided notional concept of how the victim of such an offence normally would be expected to react and behave in such circumstances. There simply are no such “norms” of reaction or behaviour that one should expect of such victims and making express or implicit use of such supposed but non-existent benchmarks of ordinary behaviour, (e.g., by shrouding them in mistaken notions of supposed “common sense”), therefore involves fallacious reasoning. To cite but a few examples in that regard:

i. Suggestions that sexual assault complainants who do not raise an alarm, resist with forceful struggle, or fight back are in fact consenting to sexual touching rely on archaic, outmoded, and unreliable stereotypes. See R. v. Seaboyer, supra; and R. v. Dadson, 2018 ONSC 4823, at paragraph 11. Such realities and principles similarly were echoed by Justice Copeland, (as she then was), in R. v. Solomon, 2020 ONSC 2640, [2020] O.J. No. 2526, at paragraph 41; i.e., an additional authority relied upon by defence counsel in the matter now before me. The issue in such cases is the existence of consent, and not why the complainant did not fight back.

ii. Suggestions that a victim of sexual assault should be expected to flee before, during or immediately after a sexual assault, and/or thereafter assiduously avoid an assailant, perpetuate myths and stereotypes about the nature of sexual assaults, and also ignore the law. See R. v. Ewanchuk, supra, at paragraph 95, and R. v. Dadson, supra, at paragraphs 27-29. The law of sexual assault does not impose a requirement to flee or avoid; it imposes a requirement of consent.

iii. More generally, it is wrong to suppose that the thoughts and responses of sexual assault victims at or around the time of the offence will conform consistently with detailed rational analysis, carefully weighing all relevant factors that might militate in favour of one course of action or another. It is far more likely that a person in that position might have fleeting thoughts of different sorts that were not the subject of such detailed rational analysis. Exposure of rational inconsistencies through cross-examination of a complainant accordingly should not be given undue weight, although it remains a piece of the overall mosaic of the case to be considered. See R. v. Dadson, supra, at paragraph 12.

d. On another note, relating to improper reliance on myths and stereotypes, our appellate courts have emphasized that there is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences. Indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true. See R. v. Osolin, [1993] 4 S.C.R. No. 135, at paragraph 50.

e. Having noted all of the above, I also bear in mind the additional observation of Justice Copeland (as she then was) in R. v. Solomon, supra, at paragraphs 42-44; i.e., that recognition of the need to eliminate such discredited myths and stereotypes from reasoning in sexual assault trials, and the determined efforts of Parliament and our courts in that regard, were designed to put complainants in sexual assault cases on an equal footing with complainants and witnesses in trials involving other types of charges, and not to put complainants in sexual assault cases on a better footing than other such complainants. As with any witness in any type of case, the evidence of a complainant in a sexual assault trial must be assessed rationally and objectively in the context of all the evidence presented at trial, and with regard to the applicable burden of proof and other principles noted above. For example, recognition that not all complainants will cry out or fight back in response to a sexual assault, and that complainants may react in different ways to a sexual assault, does not prohibit a trial judge from assessing, based on the evidence presented at trial, whether or not a complainant’s assertion that he or she complied with a request for sex out of fear is credible and/or consistent with the evidence as a whole. In assessing the credibility of a complainant’s evidence, a trial judge must consider the totality of the evidence presented at trial, including any ambiguous or contradictory conduct by the complainant. In short, evidence sometimes may be properly relevant to an issue at trial, (including complainant credibility), despite the reality that, if used in a different way, it might be said to involve engagement in prohibited use of discredited stereotypes and myths. In that regard, see also R. v. Ewanchuk, supra, at paragraphs 29-30; R. v. D.D., supra, at paragraphs 60-65; and R. v. Holland, 2020 ONSC 846, at paragraph 89.

15I will have more to say about additional legislative provisions and general principles in the course of this decision, including subsections 265(3)(a) and 273.1(2)(c) and their potential application to the underlying circumstances in this case.

16However, with all of the above principles and those mentioned hereafter in mind, I turn next to a consideration of the specific evidence tendered in this case.

Review of evidence

17The trial of this matter began with formal admissions by the defence in relation to jurisdiction, identity of the accused Mr G. and the voluntariness of the extended interview statement Mr G. provided to the police on February 27, 2021. I was then presented with detailed evidence that extended over the course of four days, prior to the receipt of closing submissions on a fifth and final day of trial.

18Without limiting the generality of the foregoing, I was presented with:

a. testimony from three witnesses called by the Crown, namely:

i. the complainant A.S.;

ii. Mr K.M., a friend of Ms S. and her mother who also came to know the accused Mr G.; and

iii. Ms M.T., a former schoolmate and longstanding friend of the complainant Ms S.;

b. nine numbered trial exhibits introduced through the Crown’s witness Ms S., including:

i. a letter written by Ms S., (undated but apparently written on or about April 20, 2018, based on information Ms S. retrieved from her computer about the last “edit” date associated with the letter), which was provided to Canadian immigration authorities in support of an application made by Mr G., (who was born in Jamaica and spent much of his life there before entering this country), to remain in Canada;

ii. a two-page document containing hand-drawn and labelled diagrams created by the complainant Ms S. during the course of her testimony, depicting the layout and furnishings of the main/ground floor and upstairs levels of [a specified] residential home here in the city of London, [hereinafter referred to the “B.C. residence”], where the complainant formerly resided with her mother, and where the accused Mr G. occasionally lived and/or visited at various times;

iii. six short video clips, (originally created by the complainant using her cellular phone but transferred to a single USB for presentation at trial), said to have been recorded and to some extent depict certain interactions between the accused and the complainant while both were present in the aforesaid [B.C.] residence; and

iv. an eight-page document containing text messages said to have been exchanged between the accused and the complainant on various dates between April of 2020 and January of 2021; and

c. testimony from the accused, Mr G., who was the sole witness called by the defence.

19All of the witnesses called at trial were examined in chief, and all but Ms T. were subjected to cross-examination; i.e., with the defence choosing not to cross-examine Ms T. Both Ms S. and Mr G. also were re-examined to some extent.

20While I have considered and have regard to all of that evidence, (i.e., the oral testimony I received as well as the exhibits that were tendered), I will not purport to reiterate or describe all of it in complete detail here. Having said that, in my view a detailed outline of the evidence and understanding of the underlying dynamics in this particular factual context is important to provide appropriate context for my ruling, and my assessments of witness credibility and reliability in particular.

21For organizational purposes, I will begin with an outline or summary of certain testimony provided by the various witnesses, followed by further comments about some of the considerations that went into my assessment of witness credibility and reliability, before finally turning to more specific consideration of the particular evidence relating to the essential elements of the charged offences, in order to determine appropriate verdicts.

OUTLINE OF WITNESS TESTIMONY

22I received extended testimony from A.S., the complainant, who was in the witness box for almost two full days. The sworn evidence she provided included the following:

a. Ms S. was born in February of 2001, in the island nation of Grenada, after which her biological parents placed her for adoption. Ms S. apparently continued to live in Grenada until the age of two, at which point she was adopted and brought to Canada by R.S.; an individual also born in Grenada, but who had emigrated to Canada many years earlier. Despite the adoption, R.S. made sure that Ms S. was always aware of her biological parents, who were unable to visit Canada, but whom Ms S. visited during occasional return visits to Grenada.

b. At the time of trial, Ms S. was 22 and her adoptive mother was 51; i.e., indicating an age difference of approximately 29-30 years between the two women.

c. Initially, Ms S. and her adoptive mother R.S. lived together in Toronto. However, when the latter’s employer transferred operations to London, Ontario, mother and daughter relocated to this city as well, when Ms S. was approximately seven or eight years old. After initially living in the north end of London, they relocated to a semi-detached residence, [the B.C. residence], in the city’s east end; a residence with three levels, (basement, main floor and upstairs area with three bedrooms and a bathroom), the lay out and furnishings of which Ms S. described in considerable detail both verbally and through diagrams, and which continued to be the common home of Ms S. and her mother throughout most of the events described hereafter.

d. It was here in the city of London that Ms S. completed her elementary and high-school studies, at specified schools. It was not disputed that Ms S. was a hard-working, outgoing and extremely personable student gifted with extraordinary intelligence and athletic ability; a student who, while holding down part-time employment in the fast food industry, excelled in academics and sports, (including basketball, volleyball and soccer), actively participated in school affairs, (e.g., serving as her school’s student counsel treasurer), and whose marks, (averaging in the nineties), athletic accomplishments and outgoing personality were widely recognized and rewarded; e.g., through formal acknowledgments such as her classification as an Ontario Scholar, her receipt of a formal award and scholarship at her high-school graduation for being an outstanding student, athlete and volunteer, and through her subsequent admission to a highly competitive […] program at Western University.

e. The accused, C.G., entered the life of Ms S. during the summer of 2015, at a time when Ms S. was approximately 14 years old, had completed her elementary school studies, and was about to embark on grade 9 and high school in September of that year. In that regard, Ms S. recalled that she was introduced to Mr G. by and through her mother, who embarked on a relationship with Mr G. that summer. According to Ms S.:

i. Her mother initially indicated, in June of 2015, that she would be bringing a “friend” to the B.C. residence for a visit and possible overnight stay, which in turn led to an initial perfunctory “hello” and exchange-of-names introduction between Ms S. and Mr G., who was approximately 11 years younger than R.S. and therefore approximately 18-19 years older than A.S.

ii. The relationship between Mr G. and R.S., (and through her, the relationship between Mr G. and A.S.), initially progressed slowly thereafter; e.g., with Mr G., (who was living and working on a farm in Thamesford, and dependent on R.S. for transportation to and from London), visiting the B.C. residence approximately once a month, and staying there one or two nights on each such visit. However, in September of 2015, after A.S. had started grade nine and Mr G. had become unemployed, Mr G. then came to reside at the B.C. residence on a constant basis, sleeping in the same upstairs “master bedroom” as R.S. A.S. had her own separate upstairs bedroom just down the hall from her mother’s bedroom. The master bedroom had a door permitting direct access to the home’s upstairs bathroom, which otherwise was entered through another entrance off the upstairs hallway.

iii. It was the understanding of Ms S. that, by the time Mr G. came to reside at the B.C. residence, her mother had agreed to assist Mr G. with efforts to apply for immigration status allowing him to remain in Canada instead of returning to Jamaica, where he had been born and had lived for most of his life up until that time.

iv. Ms S. candidly indicated that she initially was not sure how she felt about Mr G. moving into the B.C. residence, as her initial interactions with him generally were limited to brief pleasantries and his attendance at two or three of her soccer games. However, she subsequently began to appreciate his arrival as a positive development, particularly insofar as it served to divert some of her mother’s attention to Mr G. and allowed Ms S. occasional “peace and quiet” from what she perceived to be well-intentioned but sometimes excessive efforts on the part of her mother to “micro-manage” her life as an only child. Ms S. says she also was grateful that her mother had someone else to turn to, apart from herself.

f. Ms S. nevertheless went on to describe, in considerable detail over the course of her testimony, how the interactions between her and Mr G., and their relationship, grew more frequent and much stronger and closer over time, during her grade nine and grade ten years and thereafter. For example:

i. She recalled that Mr G. would always offer to make her breakfast, even if she frequently declined the offer.

ii. She recalled how Mr G. made a sustained effort to advance their conversation beyond brief pleasantries by taking an apparently sincere interest in her studies, her various sports activities, her friendships, and her interactions with her mother; e.g., by Mr G. regularly asking Ms S. how things were going in that regard. In that regard, Ms S. recalled how Mr G. was one of the only people to whom she could “vent” about her mom, without her comments in that regard being repeated to her mother, and thereby getting her into trouble. Having said all that, Ms S. says she generally remained guarded with Mr G. in relation to what she regarded as “personal matters”; e.g., details about her mental health issues, and her school and friend relationships.

iii. She described how Mr G. took her shopping and bought expensive $100 shoes needed for her playing of basketball, at a time when she and her mother were unable to afford that much needed purchase; i.e., when her mother was struggling to support the family by working long shifts at a local manufacturing plant and she herself was not yet employed. She says that Mr G. also thereafter helped with payment of fees and purchases of other equipment she needed for her various sports activities; i.e., that he was a person, (along with Mr M.), to whom she could go when she needed money from time to time – although she says Mr G. usually would give her no more than 25 or 50 dollars in that regard, usually at the urging of her mother at times when Mr G. was giving her mother money. He would also attend her sporting events on a regular basis, along with her mother -- although that was primarily during her years in grade 9 and 10, as the employment of Mr G. in the trucking industry, (a development addressed further below), meant that Ms S. and her mother saw much less of Mr G. when Ms S. was in grade 11, grade 12 and thereafter.

iv. Ms S. recalled bonding with Mr G. through discussions about the young daughter he had back in Jamaica, whom Ms S. never met, but understood to be approximately 5 years old when Mr G. came to live at the B.C. residence.

v. She remembered that she and Mr G. also developed a comradery of sorts in relation to their interactions with R.S.; e.g., sharing what Ms S. described as small jokes and/or a harmless laugh if something amusing or mildly irritating had happened in that regard.

vi. She described how Mr G. took time after her 16th birthday to provide her with her first driving lessons in the parking lot of a specified local business, even though those lessons admittedly were not successful, and she moved on to more formal driver’s education arranged by her mother.

vii. She described how she and Mr G. began conversing more, and in a more adult way, after she entered grade 11 and thereafter. In that regard, she recalled, in particular, an occasion where the two of them had friendly but apparently innocent interaction while attending the wedding of a close friend of her mother and the family, (i.e., “N.”), at a specified hotel here in London on a specified date in February of 2019, after Ms S. had reached the age of 18. As R.S. was particularly busy at the event helping her friend N., and neither Ms S. nor Mr G. knew many other people attending the wedding, Ms S. and Mr G. spent more time together, talking and laughing, during which Mr G. offered to buy - and did buy - Ms S. two or three “rum and coke” drinks, which admittedly was not her first experience with alcohol and did not affect her sobriety. Ms S. specifically recalled that occasion as significant, because she felt it was the first time she had fully interacted with Mr G. as an adult, engaging in adult conversation, which allowed their relationship to progress to a more mature level. It was also a further bonding experience between the two of them, insofar as the two of them discussed and agreed upon the advisability of not disclosing that purchase and consumption of alcohol to R.S., as they knew she would not approve even though Ms S. and Mr G. both thought consumption of alcohol by Ms S. was not harmful or problematic so long as it did not “get out of control” and Ms S. remained safe.

viii. Ms S. also recalled how, by the time she was in grade 12, she was having further adult conversations with Mr G. and enlisting his confidential support enabling her to engage in activities with friends in respect of which Ms S. knew or feared she would not receive her mother’s approval, and which therefore were not disclosed to her mother; e.g., with Mr G. agreeing to provide Ms S. with some of his alcohol from the kitchen cabinet so that she could share it with friends during a contemplated social outing, and providing Ms S. with money, (approximately $120.00), to fund her share of cottage accommodation she and her friends had rented to socialize overnight in the Grand Bend area, and necessary food purchases while she was there.

ix. By that time, (i.e., her later high school years, and grade 12 in particular), Ms S. says that she was introducing Mr G. to her friends as “my mom’s boyfriend” and/or “my stepdad”, as she had come to view him as her stepfather. Indeed, her mother had encouraged that from the outset of her relationship with Mr G., making clear her desire that Mr G. be “engrafted” into the family, and Ms S. therefore had made consistent efforts from the time she was 14 to accept and embrace such a relationship with Mr G., out of respect for her mother.

x. Ms S. says her feelings and support for Mr G., and her evolving father-daughter relationship with him, were reflected in two letters she willingly agreed to write to Canadian immigration authorities on his behalf, at the request of her mother, who was assisting Mr G. with his efforts to remain in Canada. Ms S. testified that the first such letter was written by her in grade nine, when she was 14 or 15, and that the second probably was written by her in or around June of 2019, at the start of summer that year and the end of her high school education, when she would have been 18. The first letter was not entered in evidence at trial, but the second one was. The latter speaks for itself. However, in addition to echoing what Ms S. described at trial about the somewhat “rocky” start to her relationship with Mr G., and the manner in which she “slowly warmed” to him through his support of her athletic activities and attendance at her games, his making her breakfast, his giving her driving lessons, their discussion of his daughter back in Jamaica, and their sharing of “laughs” about little things her mother would do, the letter also includes indications by Ms S.:

1. that she and Mr G. would exchange birthday and Christmas gifts;

2. that she and Mr G. would spend time playing games and watching television together;

3. that Mr G. helped pay for her G2 road test;

4. that Mr G. thoughtfully would drive her to and from her workplace despite his busy schedule;

5. that she had come to the realization that Mr G. had been her “biggest fan since day one”, and “a best friend to her when [she] needed one the most”;

6. that she and Mr G. had become a “father-daughter duo”, with her viewing him as a “great father figure” who treated her as if she was “his own biological daughter”; and

7. that Mr G. treated her mother well, and it pleased Ms S. to see her mother happy as a result.

xi. In relation to the last point, Ms S. testified that it was her understanding that her mother and Mr G. were engaged and intending to get married. In that regard, Ms S. candidly indicated that her feelings about such plans were somewhat ambivalent or indifferent, insofar as she always felt protective of her mother, (who had experienced pain through the “fall out” from prior failed relationships, which Ms S. did not want her mother to go through again), but also saw that her mother was happy with Mr G., which in turn made Ms S. happy.

g. In the course of her testimony, Ms S. also went on to provide detailed testimony concerning the evolving situation of Mr G. visiting and/or residing at the B.C. residence, and who was or was not there at such times. In particular:

i. As noted above, in September of 2015, after A.S. had started grade nine and Mr G. had become unemployed, Mr G. came to reside at the B.C. residence on a constant basis, sleeping in the same upstairs “master bedroom” as R.S. However, that “full time” residence of Mr G. at the B.C. residence was relatively short-lived, and lasted only until mid-October of that year, at which time Mr G. located his principal residence to somewhere in the Greater Toronto Area, in connection with his obtaining employment there as a truck driver, which also required him to travel long distances at a time. Ms S. recalled she and her mother visiting that GTA residence only once, while on their way to or from making a visit to an aunt who lived in Pickering.

ii. According to Ms S., following Mr G. obtaining the truck driving job based in the GTA, he thereafter left clothing and other items in the London home, his mail continued to be sent there, and her mother continued to regard the home as the home of Mr G. as well, although he would visit and stay at the B.C. residence in London only intermittently from that point onwards; i.e., coming to visit and stay approximately twice a month on average, or perhaps only once every five or six weeks, depending on his work schedule, as Mr G. frequently had to drive to distant parts of Canada, including places as far away as British Columbia. During such visits to London, Mr G. usually would spend one night but sometimes two at the B.C. residence. Such visits usually would occur on weekends, with Mr G. normally arriving there either on Friday night or early Saturday morning, before staying the day on Saturday and sleeping over the Saturday night, before departing early Sunday morning or on Sunday afternoon. From time to time, Mr G. also would spend time at the B.C. residence on holidays, if he was not working. When visiting and/or staying at the residence, Mr G. routinely would pay for delivered meals and/or dining out at restaurants.

iii. As R.S. was then working full time for her employer, not only on weekdays from 5:00am to 1:00pm, but also during similar hours on Saturdays when she routinely opted to work proffered overtime shifts, (which would become continuous each Saturday from approximately January of 2020 onwards), Mr G. and Ms S. frequently were alone in the B.C. residence together after R.S. left for work, (at approximately 4:10am to 4:20am), and before she came home. Ms S. says that, during such periods, she and Mr G. would often spend time together; e.g., with Mr G. frequently continuing to make breakfast/porridge, the two of them playing games or watching television together, and/or the two of them engaging in conversation Ms S. described as “playful banter”. To the extent his work schedule and time spent in London coincided with times when Ms S. would be going to or coming from her own job at a fast-food restaurant, Mr G. also would drive Ms S. to or from her workplace, in order to spare her the 30–40-minute walk she normally made in both directions.

h. In September of 2019, Ms S. began full time studies at Western University here in the city of London, in the university’s […] program. She nevertheless continued to reside at the B.C. residence, and necessarily continued working part time at her job in the fast-food industry to supplement the student loan assistance she received and cover the costs of her university education.

i. Ms S. says that, during the fall of 2019, her interactions with Mr G. generally continued in the manner described above; e.g., with his visiting and staying at the B.C. residence approximately once every five to seven weeks, his usually arriving at the residence on Saturday mornings, and Mr G. and Ms S. normally continuing to engage in the sort of conversation described above.

j. In relation to the first instance of alleged sexual assault, which was said to have occurred in November of 2019:

i. By that time, Ms S. had been actively engaged in her university studies for a number of month and in her estimation was doing “pretty well”; e.g., having excelled in her mid-term examinations, achieving marks that admittedly were lower than what she had attained in high school, (as the content of her university studies was more substantial and harder), but still well above average.

ii. Ms S. testified that, at the time, she also was smoking marihuana recreationally for her mental health and the relaxing and/or euphoric feeling it brought, which also helped her to eat and sleep. In that regard, she said she had first experimented with use of marihuana in grade 11 before she began using it more regularly after leaving high school. On average, she says, by the time of the first alleged sexual assault in November of 2019, she had been smoking marihuana recreationally approximately two or three times a week and then daily, (albeit always less than half a gram at a time), such that her tolerance for it had grown and its use no longer gave her much of a “high” or euphoric feeling, although she continued to use it, frequently but not always employing a small “bong” she kept for that purpose, and only during periods when her mother was not at home. In that regard, Ms S. knew that her mother would strongly disapprove of such activity and believed that there would be very serious consequences if her mother ever learned about her use of marihuana. In that regard, Ms S. knew her mother well enough to know that her mother’s reactions were variable. However, she felt sure that her mother’s discovery of her marihuana use would result in her mother getting “verbally loud” and “physical”, and probably kicking Ms S. out of the B.C. residence. To avoid such consequences, Ms S. would use marihuana in the home, and its kitchen in particular, only when her mother was at work, and in a manner that allowed her to ensure that indications of her smoking marihuana and the resulting smell would be cleared away entirely by the time her mother came home.

iii. However, on one Friday night in November of 2019, (the specific numerical date of which she admittedly had not noted and could not recall), Ms S. came home late from working at her job in the fast-food industry, while her mother was sleeping, and while undressing to take a shower in the upstairs bathroom also used by her mother, left the lighter she normally used to smoke marihuana, (which had been in her pants pocket), in that shared bathroom. When Ms S. woke the next morning, (i.e., on the Saturday morning), and returned to that bathroom, (after her mother had got up, prepared for the day and gone to work), Ms S. saw to her horror that her lighter was sitting quite visibly on the bathroom counter; something which in turn meant that her mother almost certainly had seen the lighter during her use of the bathroom earlier that morning, and would be demanding an explanation for the lighter’s presence as soon as she returned home from work.

iv. Fearing the serious consequences noted earlier, (up to and including her mother kicking her out of the B.C. residence), Ms S. says she started to panic as she desperately thought of possible ways to prevent her mother from learning that she was smoking marihuana. In that regard:

1. She says it occurred to her that she could ask Mr G. to assume responsibility for the lighter; i.e., for Mr G. to tell R.S. that the lighter was his, rather than her daughter’s. In that regard, she says she trusted Mr G. at the time, and believed that he would help her without telling her mother the truth about the lighter. However, that contemplated plan obviously required Ms S. to communicate with Mr G. and obtain his cooperation in that regard before his next conversation with R.S.

2. Ms S. therefore initially sent Mr G. an urgent text message, asking if he was busy, and indicating that she needed to speak with him. She says that, when he did not respond fast enough, she was “freaking out” and therefore telephoned Mr G. At the time, she did not know where he was, or if he was intending to return to London that weekend. According to Ms S., the conversation during that ensuing phone call included the following developments:

a. Ms S. explained the situation to Mr G., including her smoking of marihuana, her carelessness in leaving the lighter she used in that regard where it could be discovered by her mother, her fear that she now was “in trouble” vis-à-vis her mother and that things were “not going to go well” when her mother came home to ask about the lighter.

b. Ms S. then expressly asked Mr G. if he could “help [her] out”, by agreeing that Ms S. could indicate to her mother than the lighter was his.

c. Mr G. expressed shock that Ms S. was smoking, wanted to know if she was smoking cigarettes as well as marihuana, (leading her to confirm that she was not), and then asked further questions about how long she had been smoking marihuana, the quantity of marihuana she had been smoking, and with whom.

d. In the result, Mr G. indicated that it was “okay”, that Ms S. could tell her mother and/or that he would tell her mother that the lighter was his, and that he was on his way to London. In that regard, Mr G. offered to purchase some fast food for Ms S. en route, and she accepted by asking him to bring her specified items.

v. By approximately 10:00am that Saturday morning, Ms S. says, she was sitting at the kitchen table of the B.C. residence. Knowing that her mother would not be home from work until sometime after 1:00pm, Ms S. was smoking marihuana from her bong in an effort to relax, while allowing the smoke and attendant smell to waft out through the sliding door from the kitchen to the outside. She says that, at most, she had smoked less than half a gram of the substance, (more out of habit than for any other desired effect other than relaxation now that her tolerance for the drug had grown substantially), and says she accordingly was not feeling any euphoric “high”, happiness, hunger, or any effect whatsoever on her speech pattern or motor skills that morning.

vi. It was at that point, Ms S. says, that Mr G. entered through the front door of the residence, removed his shoes, and proceeded into the kitchen, where he provided her with the specified fast-food items she had requested, and sat down at the kitchen table in the chair directly opposite to the one occupied by Ms S. At that time, Ms S. was still engaged in the smoking of marihuana, (with her bong, lighter and a small packet of “weed” on the kitchen table) and recalled Mr G. commenting the marihuana in his native Jamaica was different than that used in Canada. However, she had a very definite and firm memory that Mr G. did not partake in the smoking of any marihuana on that occasion. More generally, it seemed to Ms S. that Mr G. was entirely sober and free from any impairment during the entire occasion in question.

vii. Ms S. says the ensuing conversation between her and Mr G. began with his asking questions about those with whom she might have been smoking marihuana, and the extent to which she might still be “partying”, with Ms S. responding that she only smoked marihuana with her closer friends and occasionally still went to parties, albeit now without drinking much alcohol now that she had started her university studies at Western. However, she says that Mr G. then took the conversation in an increasingly personal and entirely unexpected direction that made her feel very uncomfortable. In particular:

1. He asked Ms S. whether she was seeing anyone, and when she responded “no”, (after initially being taken back a bit by that unprecedented question), Mr G. paused slightly before then saying: “Oh wow – I’ve been thinking about you ever since I saw you in your graduation dress in October.” (In that regard, Ms S. explained in her testimony that, although she had started her university studies, her high-school graduation ceremony had taken place only the month before, and that her mother and Mr G. had attended the ceremony, at which she had worn a new peach-coloured long sleeve dress and sandals.)

2. Ms S. says that very direct comment from Mr G., (i.e., about his thinking about her and her graduation dress since that ceremony), caught her completely off guard, as the two of them had never had a conversation like that before, and she did not know what to say in response apart from “Oh, okay”.

3. She says Mr G. then proceeded to tell her: “You’re 18 now, it would be okay”. While Mr G. admittedly had not specified exactly what “would be okay”, now that Ms S. was 18, she drew a clear inference at the time, from his comment, that Mr G. was indicating it would be okay for the two of them to engage in sexual intercourse now that she was 18. She emphasized that Mr G. had never uttered any comment like that to her before, and that his doing so made her feel very uncomfortable and very nervous; feelings which she tried to address by getting up from the kitchen table and going over to the kitchen sink to do dishes, in an effort to “create some space” between them while hoping fervently that Mr G. would “just get the hint” as to how she was feeling, and that the tense moment created by his comments would subside.

4. However, Ms S. says that, after she had gone to the sink, retrieved the soap bottle and wash cloth and started to wash the dishes, she heard the chair in which Mr G. had been sitting move backwards along the kitchen floor, followed by his footsteps towards her. Without Mr G. saying or asking anything, he then proceeded to turn her partly around, (such that her left shoulder was towards the sink and she was facing back towards the kitchen table, while his right shoulder was towards the sink as he faced in the direction of the kitchen stove), plant his lips on her lips, and kiss her on the mouth.

5. Ms S. says she was quite “stunned” by the conduct of Mr G. in that regard and initially found it difficult to think, as Mr G. had never put his lips on hers before, and she definitely did not want that to happen. Her immediate response was to “scrunch” her lips and keep them together, such that she was not “kissing him back”.

6. When Ms S. then said “C., stop, no, no, no, ew, no, no”, Mr G. did not stop, but instead responded by saying “What’s wrong?”, and repeatedly saying “You kiss good A.”. In an effort to persuade Mr G. to stop what he was doing, Ms S. says she then lied to Mr G., telling him that she was dating one of her friends; i.e., a boy named R., who had taken her to her high-school prom. However, Mr G. was not dissuaded by that either, telling her that was not a “serious relationship”, and that it was “okay to have a side piece”. At that point, Mr G. began trying to grab for the wrists of Ms S., and saying “Come here”, while standing less than an arm’s length away from her. In response, she continued to say “C., stop”, and “No C., stop”, while repeatedly pushing his hands down and away from her.

7. Ms S. says that, as Mr G. continued to grab for her arms and wrists in particular, and she continued in her efforts to push his hands and arms away from her, she was moving backwards as he continued to advance, until she found herself effectively pushed into the countertop and cabinets in the northwest corner of the kitchen, with no more room to back up further. During that attempted retreat from Mr G., he once again had said “It’s okay, you know, you’re 18 now”, as well as “It’s okay, no one will know”, to which she repeatedly had responded with comments including “You’re with my mom”, “I’ll know”, “My mom will know”, “I don’t want this”, “Please stop”, and “C., stop”. It seemed to her that Mr G. simply was not listening to her.

8. At that point, (i.e., after she had been cornered in that area of the kitchen with no further room to retreat, and with Mr G. ignoring her pleas and continuing to do what he was doing), Ms S. says she “just kind of gave up”, and Mr G. succeeded in grabbing one of her wrists with one of his hands.

viii. Ms S. said that, after Mr G. had grabbed her by the wrist, he then proceeded to pull and walk her into the living room of the residence, and to its “longer couch” along the living room’s west wall, near its desk in the room’s southwest corner. She says no words were spoken while Mr G. was walking her to that couch. During that quiet walk, she was thinking at the time about what might happen if she was to scream for help, but decided that doing so would be useless – despite the sliding door of the kitchen remaining open to the outside – as she knew their female neighbor M. to that side of the home worked on weekends and therefore would not be there, and their female neighbour A. on the other side of the home was elderly and therefore never outside, such that no one would hear her scream. In the circumstances, and in her words, she therefore “kind of just thought, like, well, this is kind of it”; i.e., resigning herself to the fact that Mr G. would be having his way with her sexually, despite her earlier protests, pleas for him to stop, and physical efforts to resist his advances. In that regard, Ms S. added that part of her also was thinking that the unwanted sexual conduct towards her by Mr G. was some form of karma, fate or planned punishment God felt she deserved because she had smoked marihuana in her mother’s house. In her words, all of those feelings made her think, “Okay, well, it’s happening, I can’t do anything more”, and she “just kind of gave up”.

ix. Ms S. says that, upon arrival at that longer couch in the living room, Mr G. told her to lay down on it, and she therefore did so on her back, facing up towards the ceiling. Mr G. then proceeded to climb on top of Ms S. before starting to kiss her again; i.e., this time starting at her lips, before proceeding progressively downwards to kiss her cheeks and neck. During those efforts by Mr G., Ms S. continued to resist to some extent, (i.e., repeatedly trying to turn her head to the left or right as necessary to “squirm away” and avoid the kissing, as she did not want that to happen), while Mr G. said various things such as “Baby, kiss me”, “Tell me you love me”, and “Kiss me, Kiss me”, while occasionally placing his hand under her chin from time to time in an effort to hold her head in place and stop Ms S. from moving her head from side to side. During that time, Ms S. said nothing, and simply tried to remain quiet, as she made every effort to avoid the kissing, and determinedly did not open her mouth to accept his kisses or kiss Mr G. in return. Notwithstanding that, Mr G. also continued to say: “You kiss good”.

x. Ms S. described how Mr G. then paused in his kissing of her to get up and tell Ms S. to take off her shorts. In response, she initially “just laid there” for a time, before then complying to some extent, without saying “yes”, by removing her shorts but not her underwear as she remained lying down, and while her shirt also remained on. Mr G. then removed his sweatpants and underwear, exposing his penis.

xi. According to Ms S., after she had removed her shorts in accordance with the instructions of Mr G., and he had removed his sweatpants and underwear, Mr G. then resumed his kissing of her, this time progressing lower than her neck to her torso, before proceeding lower towards her vaginal area. At that point, Mr G. removed her underwear, (while she did not move or speak), and he then began engaging in oral sex; i.e., spreading her legs, (as Ms S. did not do so), and applying his tongue to her vagina for a minute or two while kneeling on the floor and leaning over her on the couch.

xii. It was at that point, Ms S. says, that Mr G. got up again to retrieve his wallet from the pocket of his sweatpants, and a condom from his wallet. She laid still and watched as he then opened the condom packet and placed the condom over his exposed and erect penis, before returning to his earlier position on top of her. After doing that, he returned to kissing Ms S. on her lips, face, and neck again before spreading her legs again and penetrating her vagina with his penis, thrusting back and forth with his hips, and engaging in vaginal intercourse, while intermittently returning to saying, “Kiss me baby” and “You kiss good”, even though Ms S. once again was doing her best to avoid his kisses and determinedly not kissing him back.

xiii. That vaginal intercourse lasted approximately 10 minutes, during which Ms S. was feeling great discomfort. In her words, it “essentially felt like something was being pushed in” while her “body was rejecting it”, as it “didn’t feel good”, such that her body kept “tensing up”. That in turn caused Mr G. to say words to the effect of “Relax” and “Ease up” repeatedly, (i.e., “quite a few times”), although Ms S. candidly acknowledged that she did not recall the precise words Mr G. used at that point. In that regard, Ms S. says that her body would “tense up” each time Mr G. would enter her and try to “go harder”, which caused him to repeat his “Relax” and “Ease up” comments again and again.

xiv. Again, Ms S. says that vaginal intercourse lasted approximately 10 minutes, at which point Mr G. ejaculated into the condom, before withdrawing his penis from the vagina of Ms S. and getting up to sit on the couch cushion closest to the north wall of the living room and its television. As he continued to sit there, Ms S. then used that opportunity to get up from the couch, put her underwear and shorts back on, and proceed upstairs without seeing Mr G. remove the condom or put his underwear back on.

xv. In her testimony, Ms S. was emphatic that she had not wanted any of that described physical touching of her by Mr G., (i.e., the kissing, grabbing, oral sex or vaginal intercourse), to happen. In her words, it made her feel “really gross”, “nasty” and “confused”, as she previously had viewed Mr G. as “nice” and had never felt uncomfortable around him, whereas she now had “just kind of lost all [that] trust”, “didn’t know what would happen next”, and now felt “very nervous and scared to be around him".

xvi. Ms S. says that, in those circumstances, as soon as she had made it safely to the upstairs area of the residence, she retrieved a towel and clean set of clothes from her bedroom and entered the upstairs bathroom to shower, but not before taking steps to prevent Mr G. from joining her there, where he definitely was not wanted. In particular, she locked the door leading from the upstairs hallway into the upstairs bathroom from the inside and took steps to wedge a bathroom scale under the other door leading into the upstairs bathroom from the master bedroom, (i.e., the bedroom shared by her mother and Mr G.), as it was not possible to lock that door from inside the upstairs bathroom.

xvii. After showering and changing, Ms S. went to her bedroom and waited there until 11:00am or 11:30am, at which point she felt compelled to go downstairs again to clean up the kitchen area so that all traces of her smoking marihuana, including the accompanying smell, would be completely gone and “non-existent” by the time her mother got home from work. In the result, she was forced to pass by Mr G., who was still on the couch in the living room, albeit now wearing his underwear again and with his phone headset on, while still holding the used condom in his hand – pinching it at the top with his thumb and index finger, not looking at it, but holding it in a manner apparently intended to avoid having any of its contents get onto him. While Ms S. was passing through the living room area on her way to the kitchen, Mr G. asked if she was okay, but she ignored him and kept walking.

xviii. According to Ms S., once she was back in the kitchen, engaged in removal of her marihuana materials by placing them in her backpack, and spraying the room with Fabreze to ensure that it “smelled proper”, Mr G. continued asking “What’s wrong?” from the living room, and for Ms S. to join him there. When Ms S. refused to do so, Mr G. followed her into the kitchen, (still in his underwear but no longer holding the used condom), and again asked “What’s wrong?”, as well as “Didn’t you enjoy it?”, before saying “I liked it” and “I’d want to do it again, but if you don’t want to, that’s fine”; the first time that day he had indicated they need not have sex if Ms S. did not want to do so. In response, Ms S. said, while crying: “No”, “I didn’t want to”, and “I didn’t want you”. Having seen that Ms S. was crying, Mr G. responded by trying to calm her down and saying: “Okay, okay. If you don’t want to again, we don’t have to, but I liked it”. He then returned to the living room.

xix. Ms S. says the final interaction between her and Mr G. that day occurred after she had finished cleaning the kitchen, at which time Mr G. indicated that he would be leaving soon, gave Ms S. $150.00, (a sum that was unusually large compared to the modest amounts of spending money he sometimes gave her), told her to tell her mother that the lighter was his if her mother asked about it, and indicated that he would tell R.S. the lighter was his if she asked him about it. Mr G. then left the residence before R.S. returned and did not come back to visit later that day or the next day.

xx. Ms S. says that, when her mother got home from work that day, she informed her mother that Mr G. had been there, but did not tell her mother or anyone else about the sexual assault inflicted on her by Mr G. In that regard, she attributed her delayed disclosure to a mixture of reasons, including:

1. fear of what would happen to her mother, whom Ms S. did not want to endure more heartbreak after her mother’s previous relationships had ended poorly;

2. uncertainty as to whether or not her mother would believe her;

3. fear that her mother might think that Ms S. had wanted Mr G. sexually, a suggestion Ms S. categorically rejected as false and “gross”; and

4. a feeling that she somehow was partly to blame for what had happened, in that she believed she would not have been placed in that situation vis-à-vis Mr G. on the relevant Saturday morning if she had only not smoked marihuana in the house, or been more careful to ensure that her lighter had not been left out in the open the night before, such that she would not have felt compelled to contact Mr G. for help because of the lighter’s apparent discovery by her mother.

k. Ms S. testified that, although she refrained from disclosing the first sexual assault she described to anyone for an extended period of time, that did not prevent the incident from causing her to thereafter embark upon what she described as a “dark spiral” downwards, as a result of what had happened. Without limiting the generality of the foregoing, she described how:

i. she quickly transitioned from someone who was happy and widely regarded as being happy, (i.e., whose smile would “light up a room”), to someone with an erratic mood who generally was unhappy, and who felt “dead inside” and forever changed, because of her self-perceived failure to plead with and convince someone whom she had trusted and who was so close to her to stop doing such unwanted things to her;

ii. she began to isolate herself from the friends and positive peer associations she had thitherto happily enjoyed, (e.g., those with whom she had shared academic and athletic interests), and correspondingly began to lose a lot of those friends;

iii. she began to associate more and more with others she had known from high-school days who were known for “skipping” school, involvement in the drug subculture, “getting in trouble”, and not pursuing any post-secondary education, despite her knowing that these were people she should not have become friends with, which in turn led to further poor decisions such as her thitherto unprecedented use of more serious illicit drugs such as MDMA, (otherwise known as “Molly” and/or “Ecstasy”), and hallucinogenic mushrooms, both of which she first began using only irregularly after the first sexual assault, but would use with friends more intensely only during the summer of 2020, (i.e., months after both of the alleged sexual assaults), only in July and August of that year, and even then only on alternating weekends, with her indicating that the “Molly” or “Ecstasy” usually produced a “high” for her of approximately 12 hours, while the hallucinogenic mushrooms, (which she said she would use approximately once every four months), producing a “high” for her of approximately 24 hours; and

iv. perhaps most importantly from the perspective of Ms S., (in terms of the described consequences of her being sexually assaulted by Mr G.), her relationship with her mother began to decline after the first sexual assault and more rapidly thereafter, with her quickly transitioning from a prior practice of happily enjoying significant time with her mother, (e.g., talking and/or routinely watching television programs in which they were both interested), to spending a lot less time with her mother, and finding that she was experiencing feelings of mounting dismissiveness, anger and hatred towards her mother – manifesting themselves in increasingly harsh exchanges between them – owing in large measure to a perception that her mother did not have the strength to end her relationship with Mr G., (a relationship which had enabled and led to his sexually assaultive behaviour towards Ms S.), despite obvious significant and persistent problems in the relationship between her mother and Mr G. that caused her mother and Mr G. to argue frequently.

l. According to Ms S., the sexual assault inflicted upon her by Mr G. in November of 2019 was followed by a period during which she did not see him again until two or three days before Christmas in December of that year. In relation to that occasion, and what happened on that particular day:

i. Ms S. says her mother was away in Toronto or Pickering at the time and was not speaking with Mr G. because of some form of disagreement. In the circumstances, R.S. had instructed her daughter not to tell Mr G. where she was.

ii. Ms S. says that, on the Saturday before Christmas of 2019, she was required to work a morning shift at the fast-food restaurant where she was employed. She had been alone at the B.C. residence when she woke and went to work that morning, (i.e., with her mother away and Mr G. not yet there) but saw during her break that Mr G. had been texting her to ask where she and her mother were. When Ms S. replied that she was at work and that she did not know where her mother was, (i.e., abiding by her mother’s instructions in that regard), Mr G. insisted on picking Ms S. up from her workplace at the end of her shift. In that regard:

1. Ms S. felt very nervous and scared to be around Mr G. after what had happened at the time of the first sexual assault she described and was particularly apprehensive and fearful about going home to sleep in the same house as Mr G. at the end of the day, especially as her mother was away in Toronto or Pickering. She was hoping that Mr G. might just leave without staying overnight, as he usually would do if her mother was absent.

2. In addition to indicating that her mother was not home and that she did not know where her mother was, Ms S. therefore told Ms G. that she was fine to walk home from her workplace.

3. Mr G. nevertheless insisted on coming to pick her up at the end of her work shift, indicating that he had something he needed to address at a nearby Service Ontario location.

iii. Ms S. then described, in considerable detail, how Mr G., after picking her up from her workplace and attending at the nearby Service Ontario office he had mentioned, then insisted on taking Ms S. to a number of additional locations to shop for and purchase numerous items, including a number of gifts for Ms S. that he insisted on buying. In particular:

1. While stopping at a Canadian Tire store to purchase something for himself, Mr G. asked Ms S. what she wanted from him for Christmas.

2. Ms S. responded that she did not want anything from Mr G. for Christmas.

3. Mr G. insisted that he had to buy Ms S. gifts for Christmas, and proactively suggested the purchase of “Air Force” athletic shoes Ms S. needed that had been discussed in the summer of 2019; i.e., prior to the first sexual assault Ms S. had described. The shoes were expensive, (costing approximately $190.00), and items her mother considered unnecessary; i.e., such that her mother had not approved and would not approve their purchase through use of the joint bank account Ms S. still maintained with her mother, despite having finished high-school and embarking on university.

4. In the result, Mr G. then took Ms S. to a Sportchek store, (next door to the Canadian Tire store), where he insisted on buying her athletic shoes, (albeit less expensive Adidas shoes costing approximately $100.00 rather than the previously discussed “Air Force” shoes), as well as a described windbreaker, saying that the items could be wrapped and placed under the Christmas tree so that R.S. would not know that her daughter had been involved in their selection or purchase. In the result, Mr G. spent approximately $150 that day, possibly prior to the payment of additional tax, on gifts for Ms S.

5. Mr G. then insisted on purchasing alcohol for the evening, thereafter, driving Ms S. to an LCBO and Beer Store to locate the particular brand of beer he wanted, and offering to purchase alcohol for Ms S. When she declined that offer, indicating that she instead simply would smoke marihuana she intended to purchase from someone who lived near the B.C. residence, (within easy walking distance), Mr G. insisted on providing her with a further $100.00 to make that purchase – although Ms S. admittedly then purchased only $25.00 worth of marihuana when she alone walked to and from the relevant neighbour’s home early that evening, after she and Mr G. had arrived back at the B.C. residence, following a final stop on the way home so that Mr G. could purchase a tool box.

6. Ms S. says that Mr G. also ordered the delivery of food to the residence, (i.e., pizza and chicken wings), for their dinner that evening.

iv. Ms S. testified that, by approximately 7:00pm on the evening in question, she and Mr G. were sitting together at the kitchen table in the residence, occupying precisely the same chairs in which they had been sitting immediately prior to the first sexual assault she described; i.e., eating their meal, and with Mr G. consuming one of the bottles of beer he had purchased while she once again was using her bong to smoke not more than a gram of marihuana, (and definitely not all of the $25.00 worth of marihuana she had purchased that evening), which once again did not result in her being impaired in any way. She recalled that she had allowed Mr G. to take one small “hit” or puff of her bong on that occasion, (the only time she had ever seen Mr G. smoke, inhale or ingest marihuana), as he expressed curiosity about what it was like to smoke marihuana using a bong, (which he said he had never done before), but she admittedly was unsure whether that one “toke” or inhalation had affected him in any way as she went upstairs shortly thereafter.

v. According to Ms S., when she had finished her meal, she proceeded upstairs to her bedroom to lie down on her bed, leaving her marihuana items on the table as she knew her mother was not returning that weekend.

vi. Ms S. testified that, shortly thereafter, she was lying on her back above the covers with her legs spread out when Mr G. proceeded to walk upstairs and enter her bedroom as well, before then sitting down on the foot of her bed on the same right-hand side of the bed where she was lying. In that regard, Ms S. says she was nervous because of what had happened in November, but initially tried to calm herself by remembering that, before that described instance of sexual assault, Mr G. had occasionally entered her room in a similar fashion to sit at the foot of her bed to engage in innocent conversation, without his engaging in any further troubling behaviour.

vii. On this occasion, however, Ms S. says that Mr G. began rubbing her ankle before starting to work his way slowly up her shin, all of which touching was unwanted from her perspective. In that regard:

1. Ms S. says she responded by pulling her foot away from Mr G., and retracting her legs up towards her chest, saying “Just stop” and “C. stop”.

2. Mr G. nevertheless responded by saying: “Why, what happened? Didn’t you like it last time? I liked what I got last time. I’ve missed it. When are you going to give me some again?” In addition to saying that thinking about her made him hard, and once again assuring her that it was “okay” as she was now 18, Mr G. also asked further questions about what Ms S. had not liked about “the last time”, and what he “could have done better”.

3. When Ms S. countered with responses such as “C., stop”, “Just leave”, and “You can leave now C.”, Mr G. persisted in his efforts to engage in sexual activity by saying “Why are you being like this?”, “It’s okay” and “It’s fine”. Despite Ms S. again saying “C., C., stop C., stop”, Mr G. then tried to touch her leg again.

4. At that point, as Mr G. got up to walk around the end of the bed and lay down beside Ms S., (i.e., on the side of her bed nearest her bedroom window rather than her normal side of the bed nearest her bedroom’s closet), which Ms S. describes as the first time Mr G. had ever laid down or tried to lay down on her bed, Ms S. immediately got up from the bed and went downstairs to the ground floor of the residence, as the conduct of Mr G. was making her feel very uncomfortable. As she was doing so, Mr G. was calling after her, saying “Where are you going?”, and “Come here”.

viii. According to Ms S., as Mr G. remained upstairs in her bedroom, apparently waiting for her to return, she began communicating via “Snapchat” with her friend M.T., (whom she had known as a close friend since the sixth grade when they were both 12, and whom Ms S. had come to regard as her best friend), to let Ms T. know generally what was happening and to express her concerns in that regard, while intermittently also walking at least part way up the stairs to see if Mr G. was still in her bedroom or had left so that she could go back there – during which “checks” she could see Mr G. still lying on her bed while now also rubbing his penis through his clothing and apparently using his phone. In that regard:

1. Ms S. made it clear in her testimony that, at the time, she had not yet said anything to Ms T. or anyone else about Mr G. sexually assaulting her the month before; i.e., about the first sexual assault, in November of 2019, described by Ms S. Nor did she tell Ms T., during their Snapchat communications that evening, that Mr G. was rubbing his penis through his clothing. On earlier occasions, Ms S. nevertheless had provided Ms T. with information indicating that Mr G. had been dating her mother, was going through immigration procedures and coming to stay at the B.C. residence every few weeks, and effectively had become a stepfather to Ms S. Even to date, Ms S. says, she has never spoken with Ms T. about the described sexual assaults or provided Ms T. with any details in that regard, although they remain good friends and Ms T. generally knows that “something occurred” without knowing what that “something” was.

2. Ms S. says that, on the evening in question, Ms S. used Snapchat simply to inform Ms T. that Mr G. was laying on the bed in her bedroom and would not leave, and to send Ms T. photos and short Snapchat videos (which she did not save) of Ms S. walking back up the stairs while “just doing a peak” to see if Mr G. was still there, and of Mr G. simply lying on her bed. Ms S. also recalled Ms T. responding with messages wondering why Mr G. was laying on the bed of Ms S., asking repeatedly if he was still there, expressing the opinion that the conduct of Mr G. in that regard was “weird” and “gross”, and expressing concern for her friend’s welfare. According to Ms S., she and Ms T. were agreeing that Mr G. lying on the bed of Ms S. and refusing to leave was “weird” and “gross”, as Mr G. was a “prominent father figure” and “stepdad” vis-à-vis Ms S. and living in her home.

3. According to Ms S., while she could not see precisely what Mr G. was doing on his phone during her intermittent “checks”, (although he was not having any telephone conversation that she could hear), Mr G. was texting her “I-messages” from time to time while she was communicating with Ms T. via Snapchat; e.g., with Mr G. asking Ms S. when she would be coming back upstairs, and trying to persuade her to do so.

4. Ms S. testified that, when she failed to return upstairs in response to such verbal and text message requests from Mr G., he came downstairs at one point to ask her, face to face and directly, “What’s wrong?”, and “Why aren’t you coming upstairs?” In that regard:

a. Ms S. could not recall the precise answers she gave Mr G. in response, but she remembered saying words to the effect of: “I’m not going upstairs”, “I don’t want you”, and “I never did”.

b. She says Mr G. in turn called her “ungrateful”, reminding her that he had bought her shoes and a windbreaker, and claimed to do “everything” for her, but she would not do a “simple thing” for him in return.

c. While Ms S. could not recall the further response she made to Mr G. at that point in its entirety, she did remember saying, yet again: “I never wanted you” and “I don’t want you”. She recalled Mr G. going upstairs again at that point but was not sure if he had returned to her bedroom or the master bedroom Mr G. usually shared with her mother.

ix. Ms S. described how she had then decided to smoke the last of the marihuana she had, before making any further attempt to return to her bedroom and go to sleep. However, she remained very nervous about what Mr G. might do, knowing that her mother was not home and would not be returning until the following day. She was particularly nervous about what might be in store that night, especially since she knew that Mr G. had been drinking. (In that regard, Ms S. candidly acknowledged that she had only seen Mr G. drinking from one beer bottle that evening, although she found that two of his beer bottles were empty when she was cleaning up the following day.) In any event, returning to the prevailing circumstances of what happened on the evening in question, Ms S. testified that, before attempting to go back upstairs to her bedroom, she went to the basement of the residence to retrieve, from a storage closet, a small “necklace” of bells normally used to decorate the family Christmas tree. On ascending from the basement, she saw that Mr G. finally had vacated her bedroom and was lying on the living room couch. She then made her way upstairs, entered her bedroom and closed herself inside, using the Christmas bells and placement of her weighty laundry hamper up against the inside of her closed bedroom door as a means of ensuring that Mr G. would not be able to enter her bedroom again that night undetected, while she was sleeping.

x. In the result, Ms S. says, Mr G. did not attempt to re-enter her bedroom that night and left the next day without Ms S. seeing him and prior to her mother coming home. Moreover, he thereafter did not come to visit or stay at the B.C. residence for Christmas, (which was also his birthday), or over the New Year’s Day holiday, with his absence from the home on both occasions being unusual, according to Ms S. She recalled that she and her mother had conversations about that, (i.e., about the failure of Mr G. to visit them on Christmas and his birthday, or to mark the New Year), but those conversations were focused on her mother’s frustrations, complaints, and “venting” about Mr G. in that regard. Ms S. says she once again did not speak to her mother about what Mr G. had done during his visit shortly before Christmas, or back in November of that year. Nor did she see or have any further communication with Mr G. again until January of 2020.

m. In relation to the second instance of alleged sexual assault, which was said to have occurred in January of 2020:

i. Ms S. says that second sexual assault occurred approximately two weekends after Mr G. had visited the B.C. residence shortly before Christmas of 2019, in the manner described above.

ii. According to Ms S., she and her mother had been home alone together on the Friday evening of that weekend, and when Ms S. went to bed that night. As per her normal practice on such occasions, she had gone to sleep leaving her bedroom door open, as she used to like being able to know who was in the upstairs hallway; e.g., to know when her mother was leaving for work.

iii. Ms S. recalled that it was still “super early” and “still dark outside” the following Saturday morning, at approximately 6:00am or earlier, (based on the time check she did using her phone shortly after the following events occurred), when she was lying on her back under her covers, wearing her pajama tank top and shorts, and initially heard and became aware of the familiar shuffling and heaviness of the footsteps of Mr G. “crunching the carpet” while he entered her bedroom, proceeded around the end of her bed to its left side, (as she was laying on its right side as per her usual preference), and climbed into her bed on its left side, such that he was under her bed covers as well. His entry into her bedroom effectively woke Ms S. again that morning. At the time, her bedroom lights remained off, its blinds were not open, and the room remained dark. She also realized that she and Mr G. were alone in the residence, as her mother already had left for work.

iv. Ms S. says that, because it was still so early and she had been sleeping, she was still feeling “very groggy” at that point, although she became “a bit more alert” as Mr G. entered her bed and began saying things such as “Hi”, “How’s it going?”, “Happy New Year”, and “How are you doing?”

v. Although Ms S. responded to those initial comments from Mr G. by saying “You can leave now”, “You can leave” and “Can you leave please?”, Mr G. was undeterred; e.g., repeatedly saying “Shh”, “It’s fine”, and “Nothing is going to happen”, while nevertheless starting to edge or slide closer to Ms S. as she continued to lay on her back on the right side of the bed, looking up.

vi. While lying on his side and looking over Ms S., and without saying or asking anything further, Mr G. then embraced Ms S. by placing his arms around her and began trying to put his left hand between her legs. In response, Ms S. says, she was unable to physically stop Mr G. from what he was doing, but nevertheless did try to resist by “fidgeting” and “just wiggling her body”, in an effort to create physical separation between the two of them.

vii. Undeterred, Mr G. responded to those efforts on the part of Ms S. by repeatedly saying “Shh” and “It’s okay”, while proceeding to kiss her on her lips and neck, and down her torso over her clothing, and using his hands to caress the inside of her legs and the area between them. While he was doing so, Ms S. was repeatedly turning her head from side to side in an effort to resist his kissing, while also saying “C., you can leave”, “C., no”, and “Stop”.

viii. However, Mr G. did not stop. While asking aloud what Ms S. had not liked about sex with him the last time, and indicating that just thinking about Ms S. made him “hard”, Mr G. proceeded to pull back the blanket that had been covering both of them, before then tugging at, pulling down and taking off the pajama shorts Ms S. had been wearing, and taking off his own pants and underwear as well, before once again moving on top of Ms S. and using his erect penis to once again penetrate her vagina, (this time without stopping to apply a condom), and engage in unprotected vaginal intercourse. Ms S. says that, while those actions were taking place, she was still feeling “very groggy”, but she remembers repeatedly saying “C., stop” and “C., no”, while Mr G. repeatedly responded by saying “Shh” and “It’s okay”.

ix. Ms S. says that, while Mr G. proceeded to engage in that unwanted and unprotected vaginal intercourse, she continued to squirm and her body once again kept “tensing up” as he was thrusting into her, leading Mr G. to once again repeatedly instruct her to “Ease up” and “Relax”. He also asked/instructed Ms S. to facilitate his thrusting and vaginal penetration by moving/bending her legs, and when she failed to comply, he used both of his hands to move/bend her legs himself while also rubbing them. Ms S. also says that Mr G., while continuing to engage in that vaginal intercourse, once again also started kissing her on the lips and neck, which led once again to her trying to move her head back and forth to avoid such kissing, and Mr G. using his hand to “caress” her chin while trying to hold her head in place. At one point, Ms S. says, Mr G. also used one of his hands to fully grasp her neck with moderate force in a form of “choke hold”, (i.e., with his thumb on one side of her neck and his fingers and palm on the other, which stunned and shocked her, although she admittedly was still able to breath), while he began to thrust his penis into her vagina even harder.

x. Ms S. testified that the unwanted vaginal intercourse on that occasion lasted approximately five to 10 minutes, (after initially saying it had possibly lasted around seven minutes), and took place after she repeatedly had said, at least five to 10 times and perhaps even continuously for a time, words including “No C.”, “Stop C.”, “Please stop” and “No”, with her saying the word “Stop” at least “a good five times on its own”. In cross-examination, she indicated that she admittedly had “just gone quiet” after her shorts were removed and the vaginal intercourse began.

xi. Ms S. says that unwanted vaginal intercourse ended with Mr G. deciding to remove his penis from her vagina and lay beside her on his back for a time while she continued to lay on hers, before he then got up, put his underwear and pants back on, and left her bedroom. Initially while testifying at trial, Ms S. could not remember whether Mr G. had ejaculated on that occasion. However, after seeking and being granted an opportunity to refresh her memory through reference to her earlier statement to the police, Ms S. recalled that she simply had not seen whether or not Mr G. had ejaculated, and did not know whether or not he had, but did recall Mr G. saying that he did not want to ejaculate inside her vagina because he did not want to get her pregnant. (In that regard, Ms S. also indicated and confirmed that she had Mr G. had never had any conversation about whether or not she was using some other form of birth control, and that she would “never” have had that sort of conversation with him.) In response to further questions posed during cross-examination, Ms S. indicated that she did not believe Mr G. had ejaculated inside her on that occasion, as she checked herself shortly after the incident once she reached the safety of the bathroom shower, as noted below.

xii. According to Ms S., after initially leaving her bedroom following that second sexual assault, Mr G. returned to it a short time later while she was still lying on her bed, saying “Look here”, while wanting to show and hand her $100.00. (In that regard, Ms S. confirmed in cross-examination that there had been no talk of Mr G. giving her money before he embarked on his second sexual assault.) In response to Mr G. trying to give her the $100.00 after the second sexual assault, Ms S. says she initially responded by saying “No, no, I don’t want it”, “You can keep your money”, and “I don’t want it”. However, Mr G. kept insisting that she take it, (e.g., saying “No” and “Here” repeatedly, and emphasizing she could “go and buy whatever with it”), such that she eventually did so, placing the money under her bed’s mattress cover in case Mr G. then changed his mind so as to want the money back.

xiii. After Mr G. then left her bedroom again and proceeded into the master bedroom he usually shared with R.S., Ms S. says she proceeded into the upstairs bathroom where she once again locked the bathroom’s hallway door that had a lock, while once again wedging the bathroom’s scale under the door separating it from the master bedroom, so that Mr G. would not be able to enter. She described how she was “feeling pretty distraught” and “even grosser” than she had after the first sexual assault, as she then proceeded to check herself as noted above to see whether Mr G. had ejaculated inside her, and then take a shower while she “just kept crying”, as it seemed she wasn’t “washing anything away”. Of necessity, she nevertheless then finished the shower, dressed, and went to work.

n. In the course of her remaining testimony, Ms S. went on to describe some of the further limited interactions between her and Mr G. following the described sexual assaults, sometimes doing so with the aid of preserved video recordings and text messages, although she noted and explained that most of the electronic messages exchanged between her and Mr G. had been routinely deleted along with all her other recorded electronic communications, apart from such preserved “screen shots”, owing to her mother’s habit of reviewing her social media accounts. In relation to such subsequent interactions:

i. Ms S. said that, following the second sexual assault she described, she did not encounter Mr G. again until Saturday, February 22, 2020. In that regard:

1. Ms S. described how her plans for that day, after waking at approximately 7:00am, included cleaning, doing laundry, and studying for an upcoming university examination before she and her mother would leave for a contemplated dinner together at a Red Lobster restaurant that evening.

2. Ms S. candidly acknowledged, during cross-examination, that it was safe to assume that she probably also smoked marihuana that morning while her mother was away from the home, as that was her usual practice at the time, although she also had no specific memory of doing so on the day in question. She nevertheless denies that doing so would have made her “high”, as opposed to being simply relaxed, as her developed tolerance to marihuana was substantial by that point.

3. Ms S. says that, in the course of proceeding back and forth repeatedly between her upstairs bedroom and the basement laundry room in the B.C. residence that morning, in order to attend to her laundry, Mr G. appeared and began, (after some initial perfunctory morning greetings and questions from Mr G. asking how Ms S. and her mother were doing), to pester Ms S. again with apparent efforts to engage in further sexual activity.

4. During the first such instance, Ms S. says she had gone down to the basement to retrieve some laundry and discovered Mr G. sitting on one of the two couches there. As she turned to head into the laundry room, he said “Come here – Come here and sit next to me”, “Are you not going to change?”, and “Are you not going to give me anything?”, but Ms S. ignored him and proceeded into the laundry room as intended. When she exited the laundry room, he repeated his requests. Although she could not recall her exact response, she knows she did not comply, and instead headed back upstairs to her bedroom, where she was studying. While she was there, she could hear that Mr G. had come up from the basement to the living room of the residence, where he was talking on his phone.

5. Shortly before 1:00pm, and her mother’s anticipated return home from work, Ms S. descended the stairway from the upstairs area to the ground floor, proceeded past Mr G. in the living room, and descended the further stairway leading down to the basement to retrieve more of her laundry. However, after she had come back up from the basement to the ground floor, and was trying to ascend the stairway leading back upstairs to her bedroom, with laundry in one hand, Mr G. approached and attempted to stop her, saying that he wanted her, that he had been longing for her, that he would just like to “suck on [her] clit”, and that was “all [they] had to do”. In cross-examination, and after being referred to her earlier statement to the police, Ms S. also recalled Mr G. offering to pay her $250.00 if she permitted him to do that, and actually waving that money at her, but she declined the offer saying “No, but if you want to give me money, that’s fine”. She says Mr G. also then began unsuccessfully attempting to grab her with his hands, and her wrist in particular, (which his fingers and hands succeeded in touching), while she was trying to push him away. (As noted and discussed in more detail below, Ms S. also recalled, after being referred to her statement provided to the police, that Mr G. also managed to touch her with his fingers in the area between her legs, and in particular, in the area where her thigh met her kneecap rather than anywhere near her vagina; something which she described as not being the biggest thing that grabbed her attention, or as important as the efforts being made by Mr G. to grab her arm/wrist.) In the course of those efforts being made by Mr G. to touch and grab her, Ms S. was again saying “No, C., no”, while also emphasizing to Mr G. that he was “with” her mother, that he was “cheating” on her mother, and that she loved her mother. In response, however, Mr G. was saying that he loved her mother as well, but that sexual activity with Ms S. was “just a side thing” or “side piece” that he preferred to have with Ms S. rather than someone else he did not know, as he knew Ms S. and that she was “clean”.

6. It was at that point, Ms S. says, that she finally reached the point where she felt so frustrated, “fed up” and unable to tolerate any further such sexual advances and misconduct by Mr G. that she overcame and abandoned her previous restraint and/or timidity to start “snapping”, “lashing out” and swearing forcefully at Mr G., demanding that he stay away from her and warning him of consequences if he failed to do so. In particular, she recalls getting louder and louder in her responses, and saying things that included “Don’t fucking touch me”, “If you look my way, or if you touch me again, I’ll fucking ruin your life” and “I’ll end you”. She says it was the first time in her life she had ever spoken like that to Mr G., but finally felt able and compelled to do so. In particular, Ms S. emphasized that she had been trying to avoid Mr G., and/or make her feelings towards him clear by giving him either short word answers or by ignoring him completely. However, he was relentlessly persistent, kept “pushing and pushing and pushing”, and was repeatedly making it clear that he was not taking “no” for an answer regardless of what Ms S. was saying; e.g., to the point of making it impossible for her to do even a simple task such as her laundry without having to confront his behaviour.

7. Ms S. says that confrontation ended with the sound of R.S. pulling into the driveway of the residence, at which point Mr G. tried to calm Ms S. down, (efforts which included his simply giving Ms S. the $250.00 he had been waving at her as a proffered bribe to engage in sexual activity), before leaving her to return to the living room couch while Ms S. finally was able to go back upstairs with her laundry and resume her studying. According to Ms S., her mother came upstairs shortly thereafter, but mother and daughter had nothing but a brief conversation that included no mention of what had happened that day before her mother came home.

8. According to Ms S., matters nevertheless took a dramatic turn shortly thereafter that day, less than 30 minutes after her mother came home, when Ms S. was trying to study in her upstairs bedroom and unavoidably began to hear sounds of her mother and Mr G. loudly having sex in their nearby master bedroom. In the result, Ms S. says, she grew increasingly upset and angry, knowing that Mr G. was having sexual intercourse with her mother less than half an hour after trying to force himself on Ms S. Eventually, Ms S. responded by closing her computer, “packing [her] stuff up”, leaving the residence without speaking to her mother or Mr G., walking to a nearby department store, and texting Ms T. with a request to be picked up.

9. Ms S. says her unannounced departure from the home that afternoon in turn led to text messages and telephone calls from her mother asking where she was, (as they were supposed to be going to dinner together), and to shouting over the telephone wherein Ms S. accused her mother and Mr G. of having no respect for her, insofar as she could hear the two of them having sex – but without Ms S. disclosing to her mother that she also was angry and upset because of the further misconduct of Mr G. earlier that day, immediately before her mother had come home. When Ms S. was then picked up and brought home by her mother, (by which time Mr G. had left the B.C. residence), a further “yelling match” between mother and daughter ensued that night, followed by an additional “screaming match” between them the following day, (Sunday), all of which culminated in Ms S. saying that she did not care about and indeed hated her mother, (whom she accused of ruining her life), that she wanted nothing further to do with her mother, and R.S. responding by telling her daughter “If you hate me so much, then leave”. In the result, Ms S. says, she did leave the B.C. residence to live for approximately five or six days to stay at the home of N.; i.e., the same friend of her mother, whose wedding was mentioned earlier in these reasons. In the course of that turmoil and upset, (wherein Ms S. described herself as having essentially been “kicked out” of her home, without having many of her belongings), Ms S. says attendance at the important examination for which she had been studying completely slipped her mind, and that she was not permitted to do any “make up” work or examination in that regard. In the wake of that blow to her university academics, she nevertheless was permitted to move back into her mother’s residence on B.C.

ii. According to Ms S., she thereafter did not see or hear from Mr G. again until April of 2020. In that regard:

1. Ms S. recalled receiving text messages from Mr G. one afternoon that month, (during the height of the Covid-19 pandemic and corresponding lockdowns), alluding to the possibility of their having sexual intercourse again, and asking if there had been any change in her stated decision and denials in that regard, to which she responded by indicating “No”, and “That’s not going to happen again”. Her initial recollections in that regard were buttressed by a screen shot of a preserved exchange of text messages, (found in their entirety at page six of Exhibit 9, but reproduced in whole or in part elsewhere in Exhibit 9 at pages one and five), messages which read, with the addition of sender attributions, as follows:

Mr G.: “Hey”.

Ms S.: “Hi”.

Mr G.: “You going to be home all day tomorrow.”

Ms S.: “Well ya, can’t really go anywhere.”

Mr G.: “Mom going to work. I long to hold you in my arms.”

Ms S.: “That’s not happening.”

Mr G.: “Why you keep being like that it is not a big thing no one know about us.”

Ms S.: “There. Is. No. Us.”

Mr G.: “I know is just a little fun. I give you 150 when I get there u need to just build and let us keep on doing our little fun”.

Ms S.: “That’s not happening. End of discussion.”

2. Later that month, (i.e., a few days to a few weeks later, but towards the end of April, 2020), Ms S. then received two text messages sent to her by Mr G. via I-messages, forwarding two links. When she clicked on the first, she discovered to her horror that it took her automatically to a webpage browser linked to pornography, and in particular, to a pornographic video with a label indicating that the video of two individuals shown therein having sexual intercourse, (i.e., a male apparently in his mid-to-late forties and a female apparently in her early twenties), supposedly depicted sexual activity between a stepfather and stepdaughter. Ms S. says seeing that immediately made her “feel gross” again, because she had looked upon Mr G. as her stepdad and father and had hoped and thought that he in turn looked at her as his daughter, but now realized that Mr G. regarded her more as “someone he [could] have sex with”. In the result, Ms S. deleted the text messages, (without clicking on the second link), and when Mr G. tried to telephone her, she blocked his number.

3. Ms S. testified that her efforts to block further phone and text communication from Mr G. nevertheless unfortunately did not last, as her mother, (still unaware of what had happened between Mr G. and her daughter), began indicating that Mr G. had been trying unsuccessfully to contact Ms S., and pressuring her daughter to respond. With reluctance, Ms S. therefore “unblocked” Mr G. from communicating with her via her telephone.

iii. The next “post-assault” interaction between Ms S. and Mr G., addressed by and described in her testimony at trial, was said to have occurred during a weekend near to June 19, 2020; a particular date reference Ms S. was able to recall because she remembered the described interaction with Mr G. occurring around the time of a particular friend’s birthday. In that regard:

1. Ms S. testified that, during the late Friday evening or early Saturday morning hours of the weekend in question, she began receiving a succession of telephone calls from Mr G.; e.g., at approximately 11:00pm, midnight and 2:00am. In that regard, Ms S. says she tried to ignore his initial calls, but eventually answered to ask Mr G. why he was calling her, with Mr G. responding that he was asking Ms S. whether she would be home the next day; i.e., on the Saturday of that weekend, when her mother would be at work. In the course of her testimony, Ms S. candidly acknowledged that she could not recall everything said during her telephone conversation with Mr G. that night or early morning; a conversation which she said was brief and lasted approximately two minutes. However, did recall making it clear to Mr G. that if he kept calling her, she was going to tell her mother about the sexual assaults. She says that, in response, Mr G. said: “Wow. Why would you tell your mom? No one’s going to know. It's just fun.” She also recalls him repeatedly saying that he liked what he had and would like it if he “got it again”. Before the relatively brief call ended, Mr G. then asked again why Ms S. would tell her mother what had happened, while also indicating that her mother “wouldn’t believe” her, as Ms S. had taken money from her mother when she was younger to spend at the corner store, and because her mother was said to have invested “too much money” in Mr G.

2. Ms S. also recalled that the verbal exchange or exchanges she had by telephone with Mr G. late that evening or early morning were supplemented by texts sent to her by Mr G. before and after they had spoken directly; messages which were said to have been preserved by a “screen shot” taken by Ms S., found on page 3 of Exhibit 9. In that regard:

a. At 12:46am on the Saturday morning Ms S. was describing, Mr G. sent a series of three short messages, saying “Sleeping”, “Cal (sic) me asp (sic)”, and “Sleeping”.

b. At 5:09am that same Saturday morning, Mr G. sent a further message saying: “So what would you tell her that you give it to me and I like it and keeping on asking you for more”.

3. Ms S. testified that her subsequent in-person interactions with Mr G. the following day, (i.e., on the Saturday of that weekend), began during the early morning hours in her upstairs bedroom at the B.C. residence, and concluded later in the area of the stairway between the ground floor and upstairs area of that home. In particular:

a. Ms S. recalled waking at approximately 6:00am on the day in question. She believes she was scheduled to work that day and needed to prepare herself before walking to the fast-food restaurant of her employer for the start of her shift at 7:00am or 8:00am. Her mother already had left the residence for her workplace.

b. However, as Ms S. was still lying in bed in her bedroom that morning, Mr G. then entered and once again began pestering her to engage in further sexual activity, (e.g., through various pleas, arguments, and rationalizations, as well as offers to pay Ms S. money in exchange for sex), in response to which Ms S. nevertheless consistently and resolutely expressed opposition and refusals.

c. Ms S. says that, as part of her efforts to deter Mr G. on that occasion, she again threatened to disclose to her mother what Mr G. had done and was continuing to do vis-à-vis Ms S. That in turn was said to have prompted Mr G. to indicate again that R.S. would not be inclined to believe her daughter’s claims in that regard, as:

i. R.S. by that point supposedly had “too much money invested in [Mr G.]” to abandon her relationship with him; and

ii. Mr G. knew that Ms S. had taken money left by her mother on the kitchen counter in the past, (i.e., when Ms S. was younger), which Mr G. said would undermine the credibility of Ms S. in the eyes of her mother.

d. Ms S. says that, when she then threatened to record what Mr G. was doing and saying, using her phone, for disclosure to her mother if he did not leave her bedroom and “leave [her] the fuck alone”, he suggested she would not dare do so; i.e., in an apparent effort to “call her bluff” in that regard. However, Ms S. says that, as she was “sick of his shit” by that point, she then did begin to record a succession of six short video clips that morning, (to the apparent knowledge of Mr G.), using a feature on Snapchat that allowed her to record and save such videos, albeit videos necessarily limited in length by Snapchat to a maximum number of seconds, and interrupted by the relatively short gaps of time needed to save them individually. The resulting six short “video clips” Ms S. says she made that morning were played at trial, (albeit not in the chronological order in which Ms S. says they were recorded) and were marked as exhibits. I will address them hereafter in the order in which Ms S. says they occurred.

e. According to Ms S., the first video in time was the fifth played at trial, (i.e., ‘video clip 5”), and formally marked as Exhibit 7. In that regard:

i. The video is 18 seconds in length. Approximately the first seven seconds show an unsteady assortment of passing images in a darkened room, (e.g., fleeting images of bedcovers and a person whom Ms S. identified as herself getting up from lying down, and the outline of a window with blinds in the background), before the remainder of the video generally settles and stabilizes on a general depiction of what appears to be the face and head of Ms S. as she is lying on a bed, (i.e., with what appears to a pillow and the headboard of a bed in the background), near the side of that bed.

ii. Ms S. testified that the video was taken in her bedroom on the morning in question and was started shortly after Mr G. entered her bedroom. She says he initially sat on the foot of her bed, on its right side where she was laying, and then tried to hug or embrace her as she was laying on the right side of her bed. She says the video was recorded during her movements to stop him, and move herself to the other side of her bed, in an effort to distance herself from Mr G.

iii. The words recorded by the audio portion of the video are not entirely discernible. However, they begin with Ms S. saying the word “No” repeatedly and many times, (which Ms S. says coincided with the attempts by Mr G. to hug or embrace her), followed by Mr G. saying, “Stop from moving up, this feels so nice”. That is followed by Ms S. repeatedly saying the word “No” many more times, interrupted by Mr G. repeating the word “No?” as a question, in response to which Ms S. repeatedly says the word “No” again, confirming her position. Mr G. then makes a further request, the nature of which was indiscernible to me, but which prompted further “no” responses from Ms S. When Mr G. then asked “Why?”, Ms S. responded by repeatedly saying the word “no” again, a further number of times.

f. According to Ms S., the second video in time was the fourth played at trial, (i.e., “video clip 4”), and formally marked as Exhibit 6. In that regard:

i. The video is 59 seconds in length, and generally continues to depict the face and head of Ms S. lying near the side of a bed, with a pillow and headboard of a bed in the background.

ii. Ms S. testified that the video also was recorded in her bedroom that same morning, with her and Mr G. not having altered their positions/locations on her bed between the times Exhibit 7 and Exhibit 6 were recorded. In particular, she now was lying on the left side of her bed, closest to her bedroom window, while Mr G. remained laying on the right side of the bed, closest to the closet, where she previously had been lying.

iii. The recorded comments exchanged during the Exhibit 6 recording, which I could discern, included words to the following effect:

1. Mr G. says “Suck on ya clit affair only” and “Just that only”, during and in response to which Ms S. repeatedly says the word “No”, while also shaking her head from side to side.

2. Mr G. says “Here, a hundred more”, and “I will give you two hundred bucks”, to which Ms S. responds by saying “No, cause nothing’s happening”. During that exchange, one also can hear the shuffling of paper, which Ms S. says was the sound of Mr G. pulling money from his wallet, which he was trying to give her.

3. Mr G. then says “Why?”, followed by something resembling “I can do this”, before again saying “Suck on ya clit affair”. When Ms S. responds by again saying “No”, Mr G. replies with a curt and more forceful “Why?”, and Ms S. again says “No”.

4. When Mr G. then says words to the effect of “That’s not a why no”, Ms S. responds by saying “You’re with my mother”. In response to that comment, Mr G. says: “Yes – but she not gonna know anything A. This is just a secret between me and you. She not gonna know anything. You’re not gonna get pregnant, I no not try like that.” Ms S. replies to those comments by Mr G. by saying: “And you wonder why she goes yelling at you all the time. And you say stuff like…”, before Mr G. interrupts her.

5. Mr G. then makes a number of rapid comments which frankly were not entirely discernible to me. They begin with “But you know she don’t, what, you know, say…”, and include the words “I just get used to her”, as well as additional comments, before Ms S. responds by saying: “Okay, it doesn’t mean like we should continue this. This is not right. I told you this many times, so this…”

6. The recording concludes with Mr G. then interrupting Ms S. again to say: “Yeah. What? She don’t know about this A. She not gonna know about this. This is just me and you, A.”

g. According to Ms S., the third video in time was the third played at trial, (i.e., “video clip 3”), that was formally marked as Exhibit 5. In that regard:

i. The video is 27 seconds long. Although the camera is stable, the image depicted is not very clear. In particular, the room or image appears to be very dark until 19 seconds into the recording, at which time it becomes clear that the camera is pointed along bed covers towards an open bedroom door.

ii. Ms S. testified that the recording was another in the same sequence of videos recorded in her bedroom that morning, and that she and Mr G. had not changed their positions on her bed between the end of the previous video and the start of this one.

iii. The recording begins with Mr G. apparently already speaking and mid-sentence. Not all the details of what he then says on the recording were discernible to me. However, they appear to include the following uninterrupted comments: “…You must take your brother wife. I’m a be your wife if your brother had. It’s not no wrong with it. And that’s a brother. Not no wrong with it. As, not no wrong with it, A. I think about it. We use a condom; that to say, you not gonna get pregnant. You understand?”

iv. Those comments by Mr G. are then followed by this response from Ms S.: “I don’t care of getting pregnant. No. It’s not happening.”

h. According to Ms S., the fourth video in time was the second played at trial, (“video clip 2”), and formally marked as Exhibit 4. In that regard:

i. The video is 59 seconds in length and, according to Ms S., similarly was recorded in her bedroom on the morning in question. The images depicted in the video are much brighter and therefore clearer than those in the earlier videos, (apart from the final seconds of Exhibit 5), as significantly more light appears to be entering the bedroom. Although the location of the camera does not appear to be moving, the images depicted alternate between the face/head of Ms S., with a pillow and bed headboard behind her, (i.e., in a manner similar to the images recorded in Exhibits 7 and 6), and the camera being pointed down the length of a bed, (with pillows and covers on top of it), towards an open bedroom door, in a manner similar to the images recorded in Exhibit 5. The uninterrupted sound indicates that Ms S. apparently is having the camera she is holding switch back and forth between taking what is in front of it and what is behind it.

ii. The recorded comments begin with Mr G. asking: “Why you be like that, A. (Sic)”. Ms S. responds by saying: “You’re free to go now.”

iii. Mr G. then asks: “Why you be like this?” Ms S. responds by saying: “You know you’re with my mother. You can go now.”

iv. In response, Mr G. says: “Yeah, I’m with your mother, but come on. We’ll just have a little bit of fun on the side. Come on.” Ms S. answers those comments by saying: “If you want to do fun on the side, why don’t you just break up with her and find someone else, cause when you’re in a relationship, you’re supposed to be committed to them one hundred percent, especially when you say you want to marry them.”

v. In response to those comments by Ms S., Mr G. then said the following: “Yeah, but come on. Married? It’s… Guys out there who married because guys out there like them still go club, go buy strippers and something. I don’t want to do that. I’d rather know instead, have a bit of fun with you, and I give you the money. I don’t want to go outside, then next thing, you have someone come and calling her and stuff like this. I’d rather know a bit between me and you, and havin’ a little fun what is secret.” Ms S. replies to those comment by saying: “There’s no secret, because there’s no fun to be had.”

i. According to Ms S., the fifth video in time was that played sixth at trial, (“video clip 6”), and formally marked as Exhibit 8. In that regard:

i. The video is 42 seconds long. In terms of the video images depicted, it begins with the camera directed towards the apparent outline of the face and head of Ms S. in a darkened room. Approximately 13 second into the video, the camera captures Ms S. starting to get up from the bed and turn towards a nearby window, with the outline of that window behind her. There is then further movement, during which the camera’s view seems to be blocked temporarily by a hand and/or inside of a bed cover, during which one can hear what seems to be the sound of the window’s blinds being opened. In particular, when the camera’s view is then unblocked for a few seconds, it once again shows the face and head of Ms S., now apparently sitting up in a much-brightened room with sunlight coming in from a window behind her and to the side. The camera’s view thereafter is blocked again, (apparently by a bed cover), for almost all of the remaining video, until its last couple of seconds, when it once again shows the face and head of Ms S. as she stands up.

ii. The audio portion of the recording opens with Mr G. saying: “A quick 200 bucks. That’s so easy. A little?” In response, Ms S. again says “No”.

iii. Mr G. then says something that frankly is indiscernible to me, in large measure because his words are obscured by the simultaneous sounds of covers being moved and adjusted, and Ms S. apparently getting up from the bed to open the blinds of the bedroom window. However, Ms S. responds to those comments from Mr G. by again saying “Nothing’s happening”. When Mr G. then asks “Why?”, Ms S. answers by saying “Because I said so.”

iv. The next comment made by Mr G. begins with an indiscernible word or two but ends with the words “there’s over 200 bucks”. Ms S. responds to that comment by once again saying “Nothing’s happening.” When Mr G. again asks “Why?”, Ms S. again says: “Because I said so".

v. Mr G. then says: “When? Tell me when? When?” In response, Ms S. says: “You can leave now”. However, Mr G. responds to that by saying: “I don’t wanna leave”, “When?”, and “Stop looking at me like this.”

vi. When Ms S. then says, “I’m going now”, Mr G. urgently says “No, come on, don’t mean it. Because you’re making a big deal of the whole thing.” In her testimony, Ms S. recalled that it was only at that point that Mr G. left her bedroom.

j. According to Ms S., the sixth and final video in time, (despite being the first video played at trial – i.e., video clip 1), was that formally marked as Exhibit 3. In that regard:

i. The video in question is 13 seconds in length. During the first 11 seconds, the camera is pointed down a carpeted stairway to depict, from the chest down, an individual identified by Ms S. as Mr G. He is standing at the bottom of the stairway with one foot on the hardwood floor at the bottom of the stairs, and one foot resting on the second stair from the bottom. During the last two seconds, the camera apparently reverses direction to depict the face of Ms S., apparently holding the camera as she is positioned at the top of the stairway.

ii. In her testimony, Ms S. indicated that the video records events that took place approximately five minutes after those recorded in Exhibit 6; i.e., approximately five minutes after Mr G. had left her bedroom and she had gone to the stairway, intending to descend to the kitchen of the residence.

iii. During the video, Mr G. can be heard saying, inter alia. “Not gonna know about it, actually, I promise you”, and “I will never, ever tell anyone”, while Ms S. says, inter alia, “No”, (repeatedly), as well as “I don’t want that”, (in response to Mr G. visibly trying to hand her something – which was money according to the testimony of Ms S.), and “Nothing’s happening”. In her testimony, Ms S. indicated her recollection and belief that Mr G. was by that point offering her as much as $200.00 to $250.00 to engage in further sexual activity with him, but she declined to accept it.

iv. Ms S. testified that Mr G. left the B.C. residence that morning shortly after the exchange recorded in Exhibit 3; i.e., after realizing that she was and would be firmly rejecting his advances, and that he would not be getting what he wanted from her or succeeding in what he had hoped to accomplish. According to Ms S., Mr G. thereafter did not return to the B.C. residence that summer; i.e., at any point during the ensuing months of July and August, 2020.

iv. Following the above interactions between Mr G. and Ms S. in June of 2020, the next post-assault interaction between them, described in her testimony, was said to have occurred when she saw Mr G. in September of 2020, shortly after Ms S. had started into the second year of her university studies at Western University. In that regard:

1. Ms S. initially and admittedly was unable to recall the full details of that interaction without proactively requesting an opportunity to refresh her memory by referring to the statement she provided to the police.

2. Having done so, however, Ms S. remembered that, on the occasion in question in September of 2020, Mr G. spoke to her on the pretext of requesting her clothing sizes so that he could obtain items for her and her mother from a cousin of his who stole such clothing items from premium sales outlets.

3. Ms S. recalled that Mr G. nevertheless then diverted the conversation into a discussion of whether Ms S. had changed her mind about refusing to engage in further sexual activity with him; e.g., asking if anything had changed in relation to her decisions about him, and indicating his hope that they could have “just a little thing on the side”, (alluding to further sexual intercourse), in respect of which they could “keep quiet”.

4. In response, Ms S. says, she reacted with anger and upset, once again swearing at Mr G. while holding back tears of rage, and saying words that included “No” and “It’s not happening”. She also indicated to Mr G., once again that if he ever looked at her or touched her, she would ruin his life; e.g., by disclosing to her mother what Mr G. had done, so that her mother would leave him, in turn preventing Mr G. from remaining in Canada, at least with her mother.

5. By that point, Ms S. says, she already had been giving consideration to whether she should disclose the alleged sexual assaults to her mother and/or the police; i.e., weighing what she described as the “pros and cons” of doing so in her mind. She nevertheless was reluctant to make such disclosure, primarily because she was thinking of her mother, and the intensely negative impact that such a disclosure probably would have on her mother. In that regard, Ms S. emphasized her fear that such a disclosure would “destroy” her mother, and that such a result was something Ms S. did not want to happen. In particular, she was mindful that her mother’s prior relationships had not ended well, that her mother had invested considerable time and money in helping Mr G. with his efforts to remain in Canada, that Mr G. and her mother apparently were engaged and planning to marry, (with her mother sometimes wearing an engagement ring in that regard), and with her mother already having taken steps to integrate her financial affairs with those of Mr G. by adding him to her bills and a joint bank account.

v. According to Ms S., the next interactions between her and Mr G. occurred in November of 2020, and were by way of telephone and text messaging. In that regard:

1. Ms S. says that she was the one who reached out to Mr G. at that time, as she required urgent financial assistance and did not know where else to turn for such help. In particular, while driving a vehicle formally owned and insured by her mother but purchased for the use of Ms S., Ms S. had had a minor accident that resulted in no damage to the car she was driving, but damage to another vehicle belonging to a stranger. Ms S. says she was desperate to address the necessary repairs to that other vehicle without letting her mother know about the accident, and without having to process a claim through her mother’s motor vehicle insurance arrangements; i.e., bearing in mind her mother’s very negative reaction to a similar situation that had occurred earlier when she was in high school. Although the other vehicle owner had agreed to resolve the matter privately without referring the matter to insurers, the required repairs were going to cost approximately $1,000.00, and Ms S. recalled that she needed to borrow approximately $300.00 to $600.00 to help her cover that cost. Although she initially could not remember the precise amount by the time of trial, during her initial testimony, she later was able to confirm the amount needed was $450.00.

2. In the circumstances, Ms S. says, she necessarily reached out to Mr G. – initially by text and then by telephone - to ask him for a loan of the required amount, on the understanding that the loan would be repaid by the time of her birthday the following February. In particular, she says she did so without hesitation, despite what Mr G. had done to her earlier, and despite his previous rejected offers to pay her money in exchange for sex, because she needed an answer “right away”, because Mr G. was “the quickest and fastest option” available to her at the time to address her urgent need to make arrangements for the necessary car repair, because he effectively was “the only option” available to her in terms of borrowing money for reasons that would not necessarily be conveyed back to her mother, (which was likely to happen if she borrowed the money from Mr M.), and because she thought her earlier indications to Mr G. that she intended to record his conduct, going forward, would make him “know better” than to try anything further with her in terms of sexual activity.

3. She says that Mr G. agreed to lend her the money, (albeit only after requests that Ms S. attempt to negotiate a lower payment with the other vehicle owner, which realistically was not possible in the circumstances), and eventually would do so in the circumstances described below.

4. However, Ms S. says that Mr G. nevertheless also used the opportunity created by their accident-related communications to press her again for sexual activity; i.e., by proposing that Ms S. let him perform oral sex upon her, (i.e., “suck on her clit”), in exchange for his paying her $250.00 in that regard. Ms S. responded by indicating that was “not happening”, and assured him that, if he lent her the $450.00, she was asking to borrow for the accident repairs, he would receive repayment of that loan by the time of her birthday the following February.

5. The testimony of Ms S. in that regard was supplemented by reference to a “screen shot”, found at page 2 of Exhibit 9, which was said to preserve at least part of texts sent back and forth between Mr G. in November of 2020. With added sender attributions, the messages read as follows:

Mr G.: “You soon be back?”

Ms S.: “Yes.”

Mr G.: “Are you ok”.

Ms S.: “Yes”.

Mr G.: “Sure. Please is there any change.”

Ms S.: “I have no change.”

Mr G.: “Why stop make a big thing out of it. It is just fun. I give 250.”

vi. Ms S. also recalled a further somewhat indirect interaction with Mr G. which also occurred in November of 2020, and which also involved her mother on that particular occasion. In that regard:

1. Ms S. described how she had come home from working an afternoon/evening shift for her fast-food employer and was heading upstairs to her bedroom when she heard Mr G. and her mother speaking in and from the master bedroom.

2. It was clarified to Ms S. later that her mother was the first to make reference to the sound of Ms S. ascending the stairs, and the first to refer to Ms S. as the “princess” arriving. After that, Mr G. had repeated/mimicked the remark by also referring to Ms S. as a “princess”. Admittedly angered by Mr G. saying that, Ms S. yelled out to him, saying “Don’t call me princess”, and/or “Don’t call me that”, as she made her way through the upstairs hallway to her bedroom. In her view, it was not appropriate for her to be called “princess” by someone who was supposed to be a father figure but who had sexually assaulted her.

3. Ms S. says that in turn prompted her mother to leave the master bedroom and come into the bedroom of Ms S., where R.S. reprimanded her daughter for showing “no respect” for Mr G., and not giving him “the time of day”, when he was said to have done “so many things” for her.

vii. Ms S. testified that the next interaction between her and Mr G. occurred in December of 2020, and took place in person. In that regard:

1. She says that, on the day in question, she and Mr G. were home alone together and both in the living room of the B.C. residence on a Saturday, while her mother was at work. Ms S. was sitting on a chair from the kitchen she had moved into the living room to unravel her old hair braids and put some new ones in, and Mr G. had taken a seat on the same couch where the first sexual assault had taken place.

2. She recalls Mr G. offering to assist with her hair, and her rejecting that offer, noting that she did not even let her mother assist with that.

3. At that point, Mr G. had not yet provided Ms S. with the cash loan she had requested to address the accident-related car repair issue, and he then used that opportunity to inform Ms S. that if she met him upstairs to engage in further sexual intercourse, she would receive the money she had requested and not have to pay him back.

4. Ms S. remembers that she responded by slamming down the scissors she was holding, and throwing something in the direction of Mr G., as she stood up and screamed at him with tears running down her face; e.g., shouting comments, (including repetition of some made to him on earlier occasions), that included “Don’t fucking touch me!”, “Don’t fucking look at me!”, “If I ever see you look at me again or come into my room, I will ruin you!”, and “I don’t deserve to put up with this bullshit!”

5. It was at that point, Ms S. recalls, (i.e., as she was crying and screaming at Mr G. in the residence living room), that both she and Mr G. heard the sound of R.S. pulling into the driveway in her vehicle. That in turn caused Mr G. to embark on urgent efforts to calm Ms S. down before her mother entered the home; efforts which included his promptly giving Ms S. the $450.00 needed to address her accident-related request for a loan to help her cover the cost of the necessary damage repair, and Ms S. indicating he would have the money back by her birthday in February. In the result, Ms S. says, she calmed down to the point where she stopped crying before her mother entered the residence, although she was “still very much raging inside”.

6. Ms S. conceded that she never did repay that loaned money to Mr G. having regard to the further developments outlined below, including Mr G. indicating by email that he would exercise forbearance in that regard.

viii. The final post-assault interaction between Mr G. and Ms S., described in her testimony, was said to have occurred in January of 2021, following a fortunately unsuccessful attempt by Ms S. to take her own life. In that regard:

1. Ms S. provided further details describing how her mental health had declined between November of 2019 and January of 2021 following the two sexual assaults she described, including her alienation from former friends, her increasing association with negative peers, (whom she candidly described, along with herself, as “crackheads”), as well as her increasing reliance on illicit drugs, and MDMA in particular. She and her mother also had been arguing more and more frequently, since the time of her first being “kicked out” of the B.C. residence in February of 2020, with Ms S. saying that repeated mention of Mr G. and exposure to his ongoing involvement in the lives of her and her mother effectively made it impossible for her and her mother to rebuild their relationship. In particular, Ms S. struggled with conflicting feelings that were mounting. On the one hand, she would feel the “pit drop in [her] stomach” every time she would hear Mr G., his vehicle, or his name. On the other hand, while she wanted to see her mother remain happy, Ms S. resented that Ms S. was struggling to keep the sexual assaults a secret for the sake of her mother when her mother simultaneously seemed to be showing her less respect, and/or criticizing Ms S. more and more for not being sufficiently happy for her mother and supportive of her mother’s relationship with Mr G. From the perspective of Ms S., she previously had always been happy that her mother was happy, but she was now extremely unhappy that her mother was with Mr G.

2. All of those feelings culminated in Ms S. harming herself on January 1, 2023; i.e., on New Year’s Day, 2023. In that regard, Ms S. testified that she did not want to “be here” or be “living anymore”. She says that in turn led to her final direct interaction with Mr G., later that month; i.e., in early January of 2021.

3. Ms S. testified that the communications between her and Mr G. on that occasion were electronic, with the relevant messages in that regard, preserved by further “screen shot” images found at pages 4 and 8 of Exhibit 9. Those messages, with added sender attributions, read as follows:

Mr G.: “Hey good morning how are you doing? Happy New Years. Good morning mommy say you try to cut your self. Please if you got any problem tell me. You don’t got to rush to pay me back and stress your self. I was going to give you a call from yesterday to walk you through how to open an account an invest it. Please if you got any problem tell me.”

Ms S.: “Happy new year. I fine. How are u.”

Mr G.: “I’m great. What is it happen. I just told you R. (sic) is not what she say is how she say it. Is more money problem why you want to cut your self please tell me what is it. Send me your email address and I will etransfer you. If that is the case. You know I got your back. Please talk to me and don’t think about taking your life. U want to move out I will help you. Pay it. But don’t think of taking your life. Do you own (sic) anyone and how much.”

o. Ms S. acknowledged that the preserved text messages and video clips she produced do not contain any express mention of “sexual assault” per se. However, she emphasized that had made her feelings in that regard very clear to Mr G. in numerous verbal comments, emphasizing that she had never wanted him, or wanted him to do what he had done to her.

p. Finally, Ms S. discussed the circumstances which eventually prompted her disclosure of the sexual assaults she described to others; i.e., persons other than Mr G. In that regard:

i. Ms S. recalled a further day in January of 2023 when she did not interact directly with Mr G.,but found herself alone in the B.C. residence with him. In particular, she says she had heard the arrival of his vehicle and its telltale muffler sounds the night before and knew that he had spent the night at the residence up to and including the time her mother left for work early the next morning.

ii. Ms S. says that she had purposely kept herself up until her mother left for work early that morning, so that she could come downstairs immediately, complete her room and dish cleaning chores, and grab some food she could take back upstairs to the relative safety behind her closed bedroom door, (behind which she placed items such as her dirty laundry in an effort to ensure the door would remain closed), before Mr G. rose for the day.

iii. She says she thereafter remained in her bedroom, hearing Mr G. moving about the residence, (e.g., as he went to the living room and spoke there on his phone), while she tried with decreasing success to study before she had to go to work, finding herself crying because she felt trapped in her room, and that her residence was no longer her home. She initially had resolved to take what Mr G. had done “to [her] grave”, and simply had hoped that her mother would leave him on her own accord, without Ms S. having to upset and devastate her mother by disclosing the conduct of Mr G. However, Ms S. increasingly felt that “holding it all in” was doing a disservice to her mother and to herself. Moreover, all of that had resulted in her hating spending time with her mother, hating spending time at her mother’s residence, losing the positive friends she had valued, and becoming more dependent on illicit drugs in an effort to keep herself happy.

iv. In the result, she says, things festered to the point where she “just didn’t care what happened anymore”, and all she wanted to do was “just let it out” to someone. She therefore left the residence, initially with a view to speaking with her mother’s friend N. until she realized that N. would be at work. In the circumstances, Ms S. then proceeded directly to the home of her mother’s former boss, K.M.; someone whom Ms S. had known since she was two years old, and who also had relocated from Toronto to London. He had remained involved in the lives of Ms S. and her mother as a dependable and supportive friend; someone whom Ms S. described as “stable father figure”, who had made it known to Ms S. that he was someone to whom she could turn in an emergency. Upon arrival at Mr M.’s home, Ms S. says, she primarily wanted his hug. She was visibly upset and broke down crying onto his shoulder when he greeted her. However, she then told Mr M. about the sexual assaults committed by Mr G., (without disclosing what she described as “too much detail”, apart from mentioning kissing and vaginal intercourse. She admittedly made her disclosure in a somewhat disjointed way; e.g., through “bits and pieces”, and with “crying in between”. She informed Mr M. that the sexual assaults had contributed to her mental health crisis and suicide attempt, and that she did not know what to do in the circumstances.

v. Ms S. testified that it was Mr M. who then called the police, and thereafter contacted her mother as well. It was her recollection that Mr M. made those calls after she had disclosed the first sexual assault. In that regard, Ms S. believed she had mentioned the existence of a second incident as well, but without describing it.

vi. Although her mother left work to come to Mr M.’s house, the disclosure caused a different form of strain and rift between mother and daughter; e.g., with R.S. expressing disappointment that Ms S. had felt unable to disclose such things to her mother, and a view that she and her daughter obviously did not have a strong relationship. In the result, Ms S. remained at Mr M.’s home for the next three to five days.

vii. In time, (i.e., at some point within the next few days thereafter), the police also met with Ms S. She provided them with her account of events, as well as the April 2018 immigration letter, preserved text messages and video recordings I described earlier.

q. Ms S. confirmed that she has not seen or spoken to Mr G. since the day in January of 2021 when she left her mother’s residence to make her disclosure to Mr M.

r. Sadly, Ms S. also confirmed that she no longer has any relationship with her mother; i.e., with the two women having not communicated with each other during the one to two years prior to trial. Ms S. has moved out to live on her own and has made determined efforts to put herself on a more positive trajectory. She has abandoned her dependency on drugs, rekindled relationships with the positive friends and peers she once had and has retrained successfully as a real estate agent.

23I should add that, in cross-examination, Ms S. also firmly disagreed with aspects of the anticipated conflicting account of events to be provided by Mr G.; i.e., an account essentially put to her by defence counsel, in compliance with the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). In particular:

a. She firmly denied that it had ever crossed her mind to have a “side thing” with Mr G. while he was in a relationship with her mother, emphasizing that Mr G. was her “stepdad”;

b. In relation to the sexual encounter between her and Mr G. that took place in the living room of the B.C. residence in November of 2019, she firmly denied:

i. that she had been a willing participant;

ii. that she and Mr G. had ever been kissing “each other” – e.g., with her mouth opening and kissing him back;

iii. that she had ever been in a position on top of Mr G.;

iv. that no condom had been used;

v. that she had seen Mr G. ejaculate outside her vagina; and/or

vi. that she had ever said words to Mr G. in that nature of “this is one time and one time only”.

c. Ms S. also denied that she was babysitting her niece or “cousin” at the time of her acknowledged pre-Christmas shopping excursion with Mr G. in December of 2019; i.e., on the occasion when she admittedly went with Mr G. to Canadian Tire, Sportchek, the LCBO and the Beer Store. In that regard, Ms S. indicated that she had babysat her nieces on one occasion only, in December of 2018; i.e., a year earlier than the specific occasion and shopping excursion in December of 2019, described during her examination in chief. However, she acknowledged that Mr G. had been at the B.C. residence when she was babysitting her nieces in December of 2018, that that he had taken her to a store on that occasion to buy her a pair of track pants, rather than shoes.

d. She denied suggestions that there had never been a sexual assault of her by Mr G. in her bedroom in January of 2020.

e. She also denied that there had been any incident, in February of 2020, during which she had sat on a stairway in the residence and asked Mr G. to touch her between her legs with his fingers.

f. She denied that there had ever been an occasion where Mr G. had penetrated her vagina with his fingers.

24As noted above, I also received testimony at trial from K.M., which included the following:

a. At the time of trial, he was retired from managing a food packaging facility, 67 years old, and had been living in London with his common law partner for approximately 14 years, after moving here from his previous lifelong home in Toronto.

b. He explained that he had known R.S. for approximately 25 years, having hired her and acted as her employer while they were both living in Toronto, and that he had known A.S. since she was a baby. He had remained friends with them, offering his support when needed to R.S. as a single parent, helping to provide A.S. with things she needed growing up, (such as school supplies or sports equipment), visiting and meeting with them at their home and at restaurants for meals, birthdays and other occasions from time to time, (accompanied by his wife), providing additional assistance and gratuitous handyman services when requested, and providing a modest loan on one occasion. He and his wife also helped with taking Ms S. to many of her sport events, and spoke to her regularly about her academic progress, with Mr M. assisting with her schoolwork two or three times a year.

c. Mr M. also explained that he first met Mr G. approximately five years before trial, (i.e., in or about 2018), during a visit he and his partner made to the B.C. residence. He thereafter saw Mr G. a number of other times; e.g., during occasions when he and his partner invited R. and A.S., as well as Mr G., over to their home for dinner and out for a number of restaurant meals. When asked for his understanding of the nature of the relationship between R.S. and Mr G., Mr M. candidly indicated his feeling that it was not his business to pry or ask questions in that regard, although he did recall R.S. once indicating, (in the absence of Mr G.), that they were going to be married.

d. When asked to describe his involvement in the events before the court, Mr M. expressed his view that his involvement had started in early January of 2021, a number of weeks before he called the police on or about January 18, 2021. In particular, he says he received a call from R.S. about that time, indicating that A. had tried to “slit her wrists” with a knife, and asking if he would visit and speak with A. Mr M. testified that, when he did so, and spoke with A., she did not confide a lot to him about what was going on. In the result, he told her that, when she was ready to tell him what was going on, she should come over to his house so that they could talk.

e. Mr M. says that, approximately three weeks later, on or about January 18, 2021, A.S. arrived at his home at approximately 10:00am, saying that she needed his help. She was frantically crying as he asked what was wrong, and she began to tell him about being sexually assaulted by “C.”, whom Mr M. knew to be her mother’s boyfriend Mr G. In that regard, Mr M. says that, once he was able to calm her down, A. then told him what had happened in a somewhat continuous fashion. He tried to listen intently as she did so, albeit without taking any contemporaneous notes or recording anything about it in writing thereafter.

f. In cross-examination, Mr M. recalled portions of what he believed Ms S. had told him, with some prompting from defence counsel via reference to the telephone interview statement Mr M. provided to the police on February 1, 2021, approximately 12 days after A.’s initial disclosure to him. In that regard:

i. Mr M. recalled Ms S. talking about initial touching by Mr G., followed by kissing.

ii. He also recalled Ms S. saying that she had told Mr G. to step, but that Mr G. had said words to the effect of “It’s only a game”, and “I’m just playing”.

iii. Mr M. also remembered Ms S. saying that the conduct had progressed to sexual intercourse. In that regard, he recalled her mentioning that sexual intercourse had happened in her bedroom.

iv. When asked if Ms S. had mentioned sexual intercourse happening anywhere else, Mr M. recalled that she also had told him, (although it was not reflected in the record of his statement to the police), something about Mr G. starting to kiss and grab her in the kitchen one day. However, he could not remember anything else that Ms S. may have said about locations where Mr G. may have had sex with her. In that regard, Mr M. candidly indicated that “stuff was just going through his mind” at the time, and that he could now only “recall the one thing” Ms S. had said to him about the location of sexual intercourse.

v. Mr M. also candidly indicated that he could not remember anything Ms S. may have said to him about the times when such sexual activity may have occurred, although he was able to recall that she had not indicated whether or not the sexual activity she was describing had happened on the same day or on different dates.

g. Mr M. testified that, when Ms S. appeared to have finished speaking, or when it “got to the point” where he thought it appropriate to do so, he indicated his intention to call the police. In that regard, he says he asked Ms S. if that would be okay with her, and she agreed. He says Ms S. thereafter did not want to talk any more about what she had been describing.

h. According to Mr M., he then called the London Police Service, before calling R.S. right after that. He says the latter call prompted R.S. to come to his house, at which point Ms S. “kind of grabbed her mother” to hug her, while starting to cry again.

i. In the result, Mr M. says, the police initially attended at his home later that day, approximately 10 hours after his call.

j. Ms S. thereafter did not return to her home immediately; i.e., apparently staying at the home of Mr M. and his wife for approximately one week. At that point, Mr M.s says, Ms S. apparently was beginning to feel safe and comfortable in his home and did not want to leave. However, he told her she would have to go home eventually, and she therefore did so after he assisted with changing the locks there.

k. Mr M. testified that Ms S. thereafter said nothing further to him about the underlying details of what had happened between her and Mr G., and actually has said nothing further to him about this matter in the intervening years, apart from indicating her desire to “get this behind her”.

l. Finally, Mr M. described, with obvious sadness, how R. and A.S. had “grown apart”, with their relationship having“turned very sour” and essentially having ended; i.e., with the two women essentially having had no communication for approximately two years prior to trial. In that regard, Mr M. noted that, although A.S. returned to the B.C. residence approximately one week after speaking with him about being sexually assaulted by Mr G., she was kicked out of that residence by R.S. a couple of months after that, in turn forcing Ms S. to live with Mr M. and his wife for a time, until they were able to help her obtain her own residence. In that regard, Mr M. described how R.S. regrettably and painfully now had severed relations with him as well, apparently because of her perception that he was “siding with A.” by providing her with help and support.

25As noted above, I also received evidence from M.T., although the admissible evidence she was able to offer in that regard, (e.g., as opposed to inadmissible hearsay of things that may have been said to her by Ms S.), was somewhat limited. In that regard:

a. At the time of trial, Ms T. was 22, and working in cellular phone repair while also pursuing post-secondary education focused on urban planning.

b. She testified that she has known Ms S. since they were in the seventh grade together, and that they became extremely close, and best friends, while attending high school together. They frequently visited each other’s homes – although Ms S. increasingly came to Ms T.’s residence, rather than vice-versa, as they grew older. While Ms T. had met R.S., she admittedly had never met Mr G.

c. Primarily, Ms T. was called upon to testify about a specific occasion in respect of which she recalled Ms S. exchanging phone conversation and messages about something that was happening between Ms S. and Mr G. at the time. In particular, Ms T. recalled that Ms S. was calling from her residence and scared that Mr G. was “going to try to do something” to her. In that regard, Ms S. was particularly fearful of Mr G. possibly coming into her bedroom that night while she was sleeping, but unfortunately had nowhere else to go. Ms T. recalled that Ms S. had some sort of bells that she wanted to put on her bedroom doorknob, in addition to her wanting to move furniture in front of her bedroom door; i.e., so that Mr G. would not be able to get into her bedroom that night while she was sleeping.

d. In response, Ms T. says, she was urging Ms S. to “get out of there” and “go somewhere else”, but Ms S. apparently “didn’t’ have anywhere to go”. In the result, Ms T. says she advised her friend to also put newspaper and/or plastic bags on her bedroom floor, so that Ms S. would hear someone walking across that and wake up if someone tried to come into the room while she was sleeping. Ms T. also recalls urging her friend to tell her mother about what was happening.

e. Ms T. could not remember the precise month or even year in which that described conversation and/or communication with her friend took place, although she believed it was in 2019 or 2020.

f. Nor could Ms T. remember whether Ms S. had sent her any images or videos of what was happening at the time, although Ms T. says that might have happened and that she simply no longer remembers it. In that regard, Ms T. candidly indicated that she has sustained two concussions since then, which affected her memory.

26Finally, I also received extended testimony from the accused, C.G. He too was in the witness box for almost two full days – although his testimony in that regard was interrupted a number of times, and occasionally at some length, to address objections and concerns raised by counsel.

27The sworn evidence Mr G. provided included the following:

a. He was born in Jamaica in December of 1983, and was 39 at the time of trial. He continued to live primarily in Jamaica from 1983 to 2014, achieving a grade nine education, and making a living focused on the purchase and sale of goods which he transported between the nations of Jamaica, Panama, and Curacao. In time, he also entered into a relationship which produced one child; i.e., a daughter born in 2011, who continues to live in Jamaica with her mother, and to whom Mr G. still speaks regularly by telephone and provides financial support. His parents and siblings also still reside in Jamaica.

b. Mr G. says he first came to this country in January of 2014, through a farm work program that arranged for his entry into Canada on a work permit. That resulted in his working and residing on a farm in Thamesville, Ontario; i.e., a small rural community located approximately 100km to the southwest of London, Ontario, in the county of Chatham Kent.

c. Shortly thereafter, (i.e., in February of 2014), Mr G. first came to know R.S., (the mother of the complainant), when they made contact through an online dating application. They thereafter continued to communicate remotely for a time, before deciding to meet and date; i.e., with R.S. driving from London to see Mr G. in Thamesville during their first meeting, and bringing him back, (during their second visit with each other), to the B.C. residence in London that she shared with her daughter. It was during that visit, Mr G. says, that he first met A.S., who was approximately 13 years old at the time, and still completing her final year of “primary” or elementary school. (In his initial testimony, Mr G. indicated that Ms S. might have been 14-15 at the time of their initial meeting, but confirmed in cross-examination that she actually was 13 or about to turn 13 at the time, having regard to her undisputed date of birth.) In any event, Mr G. agreed that his initial interaction with Ms S. was limited to brief verbal exchanges in the form of “Hi” and “Hello”.

d. Mr G. testified that, following his first visit to the B.C. residence, he thereafter continued to visit there either every weekend or every other weekend, staying at least one night and sometimes two, and sharing the same bedroom used by R.S. He confirmed that A.S. had her own separate bedroom in the three-bedroom residence; a bedroom with one bed.

e. According to Mr G., his living and visiting arrangements nevertheless changed in September of 2014, when his nine-month work program was coming to an end, in turn meaning that he would need to leave Canada and return to Jamaica. In that regard, he says that R.S. made it clear that she was not interested in a “long distance relationship”, and a decision therefore was made that she would pick him up from the Thamesville farm and bring him back to live with her and her daughter, on an ongoing basis, at the B.C. residence in London In cross-examination, Mr G. confirmed that Ms S. was 14 at the time, and had just started high school earlier that month.

f. Mr G. recalled living thereafter at the B.C. for approximately one month, during which time he nevertheless was unable to obtain any work here in London. That in turn prompted his relocation to the city of Toronto, where he had a fraternal cousin with whom he could stay, as well as the opportunity to engage in construction work and save money; money that, in turn, would enable his completion of an eight-week training program offered by a truck driving school. In the result, he relocated his primary residence to Toronto, (and the home of his cousin in particular), while still visiting London and the B.C. residence every weekend or every other weekend.

g. Mr G. recalled completing his truck driver training in October and November of 2015, successively obtaining his “Z” and “A” licences and starting his employment as a truck driver in January of 2016. According to Mr G., that work, which required him to drive long distances to and from destinations across most of Canada, (including as far west as British Columbia, but not into the United States owing to the restrictions created by his work permit status), resulted in his necessarily visiting London and the B.C. residence less frequently. His ability to visit there depended on his work schedule, but he often was unable to make such visits for three to four weeks at a time. While he recalled that there had been a particular occasion when R.and A.S. had visited him at the residence he maintained with his cousin in Toronto, (in connection with a Christmas visit they were making to a sister of R.S. who lived in Pickering), Mr G. testified that he mostly came to visit with R.and A.S. here in London.

h. When asked to describe his general interactions with Ms S. during such visits, Mr G. said:

i. that he would see her as often as her mother;

ii. that he would attend her basketball and sporting events, along with her mother;

iii. that he gave her two driving lessons, in the parking lot of a local business, when she turned 16;

iv. that he bought her two alcoholic drinks, (without her getting intoxicated), when they were both attending the wedding of her mother’s best friend, “N.”;

v. that there admittedly was an occasion, (acknowledged during his cross-examination), when Ms S. was nearing the end of her grade 12 year and the summer of 2019, when he provided Ms S. with requested money, as well as some of his personal supply of already-purchased alcohol, to attend a weekend “sleepover” trip with her school friends and fellow senior students,

vi. that he occasionally would provide her with additional money on request, (in varying amounts such as $50.00 and $100.00, and usually at the urging of R.S. when he was giving her money), to help Ms S. purchase things for school and sometimes marihuana; and

vii. that he and R.S. attended the high school graduation ceremony of Ms S. in October of 2019, which he agreed was a proud day for R.S. and for him, (especially having regard to the award won that day by Ms S.), and a day on which Ms S. admittedly had looked beautiful.

i. Mr G. also indicated, in the course of his testimony, that starting from the time Ms S. was in grade 10 or 11, he occasionally would go into her bedroom to speak with her. In that regard, he says he would do so at the request of R.S., who asked Mr G. to speak with Ms S. about her “mood” swings and difficulties in the mother-daughter relationship. He also says that, during such occasions, he sometimes would stop at the bedroom doorway, but admittedly would sometimes sit on the bed of Ms S. However, he denied that he had ever laid down on the bed of Ms S. According to Mr G., Ms S. sometimes would talk with him on such occasions, but sometimes would just cry and say nothing. In the course of cross-examination, Mr G. acknowledged that he and Ms S. “became closer” through such conversations, and generally during her time in high school.

j. Despite such interactions, admittedly extending over the course of several years, when asked to describe his relationship with A.S. from the time of their meeting until the time she graduated from high school, Mr G. testified that it was: “Just, like, ‘hi’ and ‘goodbye’”.

k. Mr G. did not deny that he nevertheless then had engaged in sexual activity with Ms S. However, he asserted that all such sexual activity was consensual, and indicated that such consensual sexual activity had happened only on two particular occasions; occasions he went on to describe in the course of his testimony.

l. In that regard, Mr G. described the occasion of his first sexual interaction with Ms S. as follows:

i. He says he was visiting the B.C. residence on the occasion in question. He nevertheless was unsure whether it was during the week or on a weekend. His further evidence about timing in that regard varied. In particular:

1. In the course of his examination in chief, he did not and/or could not provide a date or approximate date when the event had happened.

2. In the course of cross-examination, he initially agreed that the incident had happened in November of 2019. However, in the course of further cross-examination, he then resiled from that answer, indicating that he was not sure of that, and that he was only sure that the incident had occurred after the graduation of Ms S. from high school, (in October of 2019), and that the incident may have occurred in November or December of 2019.

3. In the course of further cross-examination, Mr G. nevertheless altered his testimony in that regard yet again, indicating that the incident may have occurred in November or December of 2019, or in January of 2020.

ii. Mr G. says that, on the occasion in question, he entered the residence to find Ms S. smoking marihuana, using a bong. In that regard, he says her use of marihuana definitely was not a surprise to him at the time, as he previously had given her $40.00 or $50.00, at her request, to purchase marihuana for her use during earlier social outings; i.e., in relation to a “sleepover”, or her high school graduation. However, he says the occasion in question was the first time he actually had seen Ms S. actually using marihuana, and that it prompted a conversation between them. In particular, according to Mr G.:

1. Ms S. asked if he smoked marihuana like that “back home” in Jamaica;

2. he responded with an indication that he used marihuana in Jamaica by rolling it;

3. she asked whether that was the reason he did not smoke marihuana in Canada;

4. he indicated that his reason for not using marihuana in Canada was that the form of marihuana consumed here had a lot of chemicals in it, such that just one or two puffs would “get him high”; and

5. she nevertheless pressed him to “come on” and “give it a try”.

iii. In the result, Mr G. says, he did “give a try”; i.e., taking “a few” puffs out of the bong, which in turn made him feel “high”. According to him, Ms S. laughed at him as he told her that; i.e., with Mr G. agreeing, in cross-examination, that was “because she saw her stepdad being high”.

iv. Mr G. says he then left the kitchen, (leaving Ms S. at the kitchen table with her bong, saying she was going to wash the dishes and put away the bong before her mother came home), as he then went to the living room and the couch located there. He says tried to watch a movie while sitting there, but fell asleep while doing so, such that his eyes were closed.

v. According to Mr G., he then felt Ms S. “come on top of him”, while “playing with [his] private parts” through his clothing. He says that, in response, he got up and sat on the couch, with Ms S. sitting beside him, while they talked, and she was still touching him.

vi. It was only then, Mr G. says, that he started kissing Ms S. on her lips and neck, which prompted a response from Ms S. that Mr G. described as “normal”; i.e., insofar as “she didn’t resist” in his view and was said to have opened her mouth to receive his kisses. In that regard, he recalled telling Ms S. that she “kissed good”, which was the only thing he recalled saying to her up until that point. He says he made the comment because he liked how she kissed.

vii. It was then, Mr G. says, that he asked Ms S. to take off her clothes, which she proceeded to do to some extent. In particular, he recalls Ms S. wearing a tank top, shorts, and underwear on the occasion in question, and he says she removed her shorts and underwear while leaving her tank top on. Mr G. says that, while Ms S. was doing that, he then removed the track pants and boxer shorts underwear he had been wearing, while leaving his t-shirt on.

viii. After that described removal of clothing, Mr G. says, he began to perform oral sex on Ms S., as she was lying back but still slightly sitting up on the couch and he was kneeling with both knees on the floor beside the couch. In cross-examination, Mr G. clarified that the oral sex he was describing involved his using his mouth, tongue, and lips, which he applied to the clitoris of Ms S., including his engaging in licking in that regard. He was “not quite sure” how long that oral sex continued but testified that Ms S. was rubbing his head while it was happening.

ix. According to Mr G., he then got up and sat on the couch again, after which he asked Ms S. to also get up from the couch and then sit on him; i.e., such that they could engage in vaginal intercourse while she sat on him, facing the same direction with her back close to his chest, and her legs overtop and straddling his. Mr G. says she then complied, with the two of them engaging in sexual intercourse in that fashion, with his penis in her vagina, as she was “going up and down” while sitting on him. He was “not quite sure” how long that lasted. In his examination in chief, Mr G. was asked whether anything was said by him or Ms S. while that was happening. He initially indicated that he was not sure, but then said “No, I don’t think so”. In cross-examination, however, he indicated that he simply did not know whether anything was said at that point.

x. Mr G. testified that he and Ms S. then switched to another sexual position, whereby he “turned her around” and “pushed on her head in the couch”, such that she was facing down onto the couch with one foot still on the ground as he was behind her; i.e., with both of his feet on the ground, and the two of them facing in the same direction, as his penis then penetrated her vagina from behind to engage in further vaginal intercourse.

xi. According to Mr G., that further vaginal intercourse, after proceeding for an undescribed length of time, came to an end without his ejaculating when he asked Ms S. to change positions again. In response, he says, she suddenly indicated that she had to leave as time was “catching up on her”, and she had to “leave and go somewhere”. In that regard, Mr G. said he saw Ms S. go upstairs to get a shower, during which time he remained in the living room, having resumed a sitting position and relaxing while watching television.

xii. Mr G. says that, when Ms S. then came back downstairs, there was no need for her to clean up her marihuana supplies that previously had been in the kitchen, as that had been done earlier; i.e., before she ever went upstairs. Mr G. also denied that Ms S. was ever crying on that occasion, or that he had given her money for that reason. According to him, he proceeded to give her $100.00 before she left the residence, (and would have given her less had he possessed smaller bills at the time, as per his usual practice), not as a bribe to dissuade Ms S. from telling anyone what had happened between them, but simply “for pocket money”. Indeed, he says that it was Ms S. who asked him not to tell her mother what had happened, which he says was the major reason he thereafter said nothing to R.S. about it when he saw her later that day and stayed overnight, or thereafter.

xiii. Mr G. also testified that no condom was used during any of the sexual intercourse that occurred during that first occasion of sexual activity with Ms S. he had described. In that regard:

1. He denied that he had any condom in his wallet in his pants pocket on the occasion in question, or that he travelled with a condom, as R.S. regularly gained access to his wallet to inspect its contents like “a detective”; e.g., by going through his pants pocket, and/or by using his car keys to go into his car while he was sleeping, to locate his wallet and check its contents in order to check how much money was inside.

2. However, the testimony of Mr G. in relation to whether there had been any discuss between him and Ms S. about condoms varied. In that regard:

a. During his examination in chief, Mr G. testified that Ms S. asked him on the occasion in question whether he had a condom, and that he had told her “no”.

b. In cross-examination, however, Mr G. was asked whether there had been any conversation about a condom at the time of his first described sexual interaction with Ms S., and he said “no”. Moreover, when also asked whether Ms S. had asked for a condom on that occasion, he also said “no”.

c. When confronted with that fundamental and obvious inconsistency in his answers, Mr G. initially made strenuous attempts to deny making his earlier answers, and to suggest the existence of confusion about what he had said. It was only when confronted with the undeniable DRD recording of his own voice that he acknowledged his inconsistent answers and indicated that his final position was that there had been a conversation about condom usage, with Ms S. allegedly asking if he had a condom, and him allegedly saying “no” in response.

3. Mr G. testified that he did not know whether or not Ms S. was on, or using, any form of birth control other than condoms.

4. According to his testimony, both he and Ms S., at the time of their first sexual encounter, nevertheless then engaged in the repeated acts of vaginal intercourse he described, without use of a condom.

m. Mr G. testified that there was no discussion or conversation with Ms S., before or during that first sexual encounter between them, (as he described it), about a lighter that Ms S. had left in a bathroom of the B.C. residence, or anywhere else in the home. According to him, that conversation did not occur until a subsequent occasion; one he believed to have been on or around “the next time” he visited the residence. He acknowledged that, in relation to that subsequent occasion, Ms S. had called him to say that she had left a lighter on the bathroom counter, that she feared her mother had discovered that she was smoking, and that she was going to tell her mother that it was Mr G. who owned that lighter. However, Mr G. says he never did end up talking about the lighter with R.S.

n. In the course of his testimony, Mr G. also recalled another visit he made to London during a weekend on which R.S. was away in Toronto, and during which he had taken A.S. to a number of stores, (including Canadian Tire and Sportchek), and admittedly purchased Ms S. something for Christmas. In that regard:

i. He indicated that he was not quite sure of the date when that particular visit happened, noting that he was “not good with dates”. However, he thought the occasion in question had happened before Christmas in 2019, after A.S. had graduated from high school.

ii. As noted above, he did recall that R.S. was away in Toronto at the time of the visit in question. However, he says A.S. was still at home in the B.C. residence, babysitting “a baby cousin” at the time; i.e., a cousin whom Mr G. estimated to be approximately 2-3 years old at the time of the visit in question.

iii. According to Mr G., he arrived at the B.C. residence on the Friday of the weekend in question, after Ms S. and her baby cousin had gone to sleep. However, he says he saw both of them the next day. Moreover, he says that, after he woke up, made breakfast, and watched a movie, he invited Ms S. to come along with him to a Canadian Tire store. e says that she agreed, and that she and the baby cousin then came along with him on that excursion.

iv. In that regard, Mr G. says that, as he was in the Canadian Store with Ms S. and the baby, he asked Ms S. what he should buy her for Christmas, and she said “sneakers”, (the particular name of which he could not remember), that were available at the nearby Sportchek store. According to Mr G., it was her idea and request to go there, and they did. According to Mr G., while they were in the store, Ms S. also made him take and hold the baby cousin for a time, as she had seen three or four of her schoolmates and did not want them to think that the baby was hers.

v. Mr G. testified that Ms S. then selected sneakers and a top she wanted him to buy for her, and that he then made that purchase for her as a Christmas present, at a cost of approximately $160.00 to $180.00. In that regard, he recalls Ms S. then expressing concern that her mother was going to “cuss” and “argue” about Mr G. spending “so much money for a gift”, which prompted him to then “come up with the idea” of simply wrapping the items and placing them under the Christmas tree as presents.

vi. Mr G. testified that, before he, Ms S. and the baby cousin then went home, they stopped at The Beer Store to purchase a particular beer or stout he wanted, (which was not available there), and then to a Caribbean store, recommended by Ms S., where the particular beer or stout was available. He denied giving Ms S. any money to purchase marihuana on that occasion, saying that she “already had marihuana” at the time. He nevertheless did acknowledge ordering home delivery food online, which they then had for dinner.

vii. According to Mr G., he drank two or three bottles of the beer/stout he had purchased over the course of that evening. He believed that Ms S. did not drink any alcohol that evening, but had smoked marihuana instead; i.e., as he saw her pass through the living room where he was sitting with the baby, carrying her bong and lighter, before proceeding through the kitchen to exit the residence and proceed into its back yard. Mr G. says he then took the baby cousin upstairs and put the baby to sleep in the bedroom of Ms S., (the only time he went into her bedroom during that visit), before he took a shower and then went to sleep overnight, (i.e., that Saturday night), in the bedroom of R.S.

viii. Mr G. denied having any conversation whatsoever with Ms S. in her bedroom that day or evening. In cross-examination, he also specifically denied that he entered the bedroom of Ms S. that evening to wait for her there; i.e., while sending her text messages asking her to come to her bedroom, and essentially propositioning her to engage in further sexual activity.

ix. According to Mr G., he then did not see Ms S. again until the following morning, (i.e., the Sunday morning), after breakfast, and he denied doing anything with Ms S. that day. According to him, he waited until R.S. returned to the residence at approximately 12:00pm that day, and then left the residence at approximately 3:00pm after eating a meal brought home by R.S.

o. Mr G. initially recalled that he celebrated the following Christmas that year, (i.e., his birthday), by attending a dinner with R. and A.S. at the Pickering home of a sister of R.S., before he returned with R. and A.S. to the B.C. residence in London for Boxing Day. However, he then acknowledged that he was unsure whether the particular Christmas celebrations he was recalling in that regard occurred before or after Ms S. graduated from high school in the fall of 2019.

p. In any event, Mr G. specifically denied the incident alleged and described by Ms S., of his attempting to grab or pull at her wrists as she was attempting to make her way up the stairs leading from the main floor of the B.C. residence to its upper floor, where the bedrooms were located; i.e., a stairway he described as curving to the left at the top. In that regard, Mr G. recalled there being only two interactions between him and Ms S. on or near that stairway; i.e., the occasion depicted in Exhibit 6, (the video recording showing Ms S. speaking to him from the top of the stairs as he stood at the bottom), and another occasion wherein there was said to have been further sexual activity between himself and Ms S. In relation to the latter:

i. Mr G. indicated during his examination in chief that he was “not quite sure” when that alleged incident of sexual activity on the stairs occurred, in terms of date or time, or in relation to other incidents he described such as the pre-Christmas shopping excursion when he purchased shoes for Ms S.

ii. However, in the course of cross-examination, Mr G. indicated that the incident occurred earlier on the same day as the incident described by Ms S., (and addressed by Mr G. in further testimony discussed below), when Ms S. apparently was upset by hearing Mr G. and R.S. engaging in sexual activity in their bedroom. In that regard, Mr G. in turn conceded that date would have to have occurred immediately before Ms S. temporarily left the residence in February of 2020 to live elsewhere for a short period of time.

iii. As for the nature of what Mr G. described as the second occasion of sexual activity between him and Ms S., (i.e., the alleged incident of sexual activity between them on the stairs of the residence), Mr G. testified that he was sitting on the couch in the B.C. residence watching television, in the daytime, and while R.S. was at work, (i.e., sometime between 5:00am and 2:30pm), when Ms S. essentially asked him to “come and finger her” and/or indicated that he “must come and … finger her”; i.e., digitally penetrate her vagina. In that regard, Mr G. says that Ms S. was “in the staircase” of the residence, and initially said “C., come here”. He says that when he then approached or “entered” the staircase, Ms S. then essentially indicated that he “must finger her”, and that he then did so; i.e., that he then went there and was “fingering her”. In particular:

1. Mr G. says Ms S. “came down” and was sitting on the stairs, on the second step down from the top or upstairs floor of the residence, facing down the staircase and towards the living room.

2. According to Mr G., Ms S. was wearing very short and loose shorts that allowed him to see that she was wearing no underwear, as she sat on the stairs with her legs open; i.e., such that he could see “straight underneath” to her “private parts”.

3. Mr G. says that, after Ms S. essentially had asked him to finger her and/or told him that he must finger her, he asked her to repeat what she had said and that she did so. When asked at trial to indicate the specific words she had used in that regard, Mr G. nevertheless said that he did “not quite remember”. He simply knew that it was “pertaining” to the fact that he “must finger her”.

4. In response, Mr G. says, he ascended the stairway, by going up “some of the stairs”, until he was approximately three stairs lower than Ms S. and in front of her. After doing so, he says that, while “bracing” himself “in a climbing position”, he then began using two fingers of one hand to digitially penetrate the vagina of Ms S.; i.e., rubbing her clitoris on one side while one of his fingers was inside her vagina. According to Mr G., Ms S. said nothing while that was happening, and was “just making sexual sounds”.

5. According to Mr G., the digital penetration on the stairs that he was describing did not continue “for a long time”, as Ms S. then “caught herself up”, indicating that she “didn’t realize the time of day”, was “gonna run late” and had to “go away”, because she was “supposed to leave the house to go somewhere”, such that Mr G. had to stop what he was doing. Mr G. could not recall whether she had indicated a need to go to work, or to go see one of her friends.

6. In any event, Mr G. says that Ms S. then left the residence and was gone before R.S. came home later the same day, at approximately 2:30pm.

q. As noted earlier, Mr G. also recalled the incident, (described in the testimony of Ms S.), wherein Ms S. claimed to have heard her mother and Mr G. having sex, in turn prompting Ms S. to leave the B.C. residence for a time. In that regard:

i. Mr G. says that there had been a Friday evening, (some time after the described incident during which he had digitally penetrated Ms S. on the stairs), when he and R.S. were having sex in the master bedroom of the residence, during which time Ms S. may have entered the upstairs bathroom of the residence, in turn allowing her to hear sounds of sexual activity from the adjacent master bedroom.

ii. However, Mr G. says it was the following morning of the next day, (i.e., on the Saturday morning, when he was still in the residence), when Ms S. told her mother that she and Mr G. had no respect for Ms S., (i.e., by having sex while she was in the house), which in turn resulted in Ms S. leaving the B.C. residence to stay at N.’s residence for a week.

r. According to Mr G., he thereafter did not see Ms S. again until he made a further visit to the B.C. residence some 2-3 weeks later, at which time Ms S. was said to have rebuked him directly for Mr G. and her mother disrespecting Ms S.; i.e., by their having sex in a manner that she could hear. Mr G. testified that it was during the same visit that Ms S. was upset by the fact that he and R.S. had called her “Princess”. In relation to that incident:

i. He says he and R.S. once again were in the master bedroom of the residence when Ms S. audibly came home from work, at approximately 11:30pm or midnight, prompting R.S. to say words to the effect of “the princess come home” or “my princess come home”.

ii. Mr G. says that in turn prompted him to repeat, (after R.S.), that the “princess had come”; the only time he had ever referred to Ms S. as “princess”. However, he says Ms S. heard him say it, which in turn prompted Ms S. to tell her mother to instruct Mr G. not to call her “princess”.

s. As for the video clips that were introduced during the course of the testimony from Ms S.:

i. Mr G. denied having any knowledge that he was being recorded or “videotaped” at the time the relevant recordings were made.

ii. Mr G. would not agree that all of the videos were recorded on the same day and around the same time, although he also was unable to indicate when the events depicted in the recordings may have occurred, or even the general season in which those events may have happened, apart from claiming that the recordings were made after the incident he described of digitally penetrating Ms S. on the stairway leading to the upstairs of the residence, and after Ms S. was upset that she had heard Mr G. and R.S. having sex.

iii. In relation to Exhibit 7, (video clip 5), Mr G. acknowledged that his was the male voice heard on the video, and that he was trying to offer Ms S. money, (“to bribe her”, as he himself put it), to have sex with him again. However, he denied that he had entered her bedroom; i.e., insisting that he had been speaking from her bedroom doorway. He also claims that he was saying “Stop - move away”, although that frankly is not what I heard on the relevant video recording. (My indications of what I heard on the various video clip exhibits are set forth above, in my view of the evidence presented via Ms S.)

iv. In relation to Exhibit 6, (video clip 4), Mr G. acknowledged, inter alia, that it was his voice heard on the video, and that the rustling sound heard on the video was that of him rubbing money together as he was trying to offer Ms S. money in exchange for more sex. However, he once again claimed to have been speaking from the same place; i.e., at her bedroom doorway, where he was said to have remained for the duration of that video. He also suggested that Ms S. saying it was not right to “continue this” was a reference to her having indicated that consensual sexual intercourse between them would happen “just the one time and that’s it”.

v. In relation to Exhibit 5, (video clip 3), Mr G. explained that he was trying to convince Ms S. to have sex with him again by saying there was a quote or verse from the Bible indicating that, if a man’s brother should die, he should take the brother’s wife and make her his wife as well. In that regard, he apparently was trying to draw an analogy between the propriety of relationships described in that supposed Biblical saying and the suggested propriety of his having sexual activity with R.S. as well as her daughter A.S. In that regard, Mr G. indicated in cross-examination that it was “just speech”, “just speaking” and “really nothing” that he was offering up; i.e., “just saying something” to Ms S. in an unsuccessful effort to persuade Ms S. to change her mind.

vi. In relation to Exhibit 4, (video clip 2), Mr G. explained, inter alia, that his reference to having “a little fun on the side” was a reference to having “a little sex on the side”, with “on the side” referring to the fact that he primarily was in a relationship with R.S. while wanting to engage in additional sexual activity with her daughter Ms S.; i.e., that he wanted to have sexual activity with Ms S. despite admittedly still being “with her mom”.

vii. In relation to Exhibit 8, (video clip 6), Mr G. confirmed that he once again was offering Ms S. money, ($200.00 at the time), if she would change her mind and engage in further sexual activity with him. He also acknowledged that, immediately after that video, he left Ms S. in her bedroom and proceeded downstairs while remaining in the residence.

viii. In relation to Exhibit 3, (video clip 1), Mr G. confirmed that the video shows him at the foot of the stairs, on the first or ground floor of the residence, “still trying to negotiate” with Mr S. so that she would engage in further sexual activity with him; e.g., promising never to tell her mother, and admittedly trying to hand her money, although he indicated he was “not quite sure” how much money he was offering her at that point. He said he left the residence shortly thereafter; i.e., with his use of the word “Later” as a form of goodbye.

t. As for the preserved text messages, filed in evidence as Exhibit 9:

i. Mr G. did not, (and arguably could not), dispute that the messages say what they say.

ii. In relation to the messages Ms S. says were from April of 2020, set forth on the first, fifth and sixth pages of Exhibit 9:

1. In his examination in chief, Mr G. said that he could not confirm or indicate the time, day, or month in or on which the messages had been sent, apart from his belief that they were sent after the first time he had sex with Ms S. In cross-examination, however, Mr G. acknowledged that the messages were sent in April of 2020. He also conceded that the reference by Ms S. to an inability to go anywhere at the time was an indirect reference to the messages being sent sometime during the Covid-19 pandemic, and its associated travel restrictions, during which R.S. nevertheless continued to work.

2. Mr G. confirmed that his reference to “a little fun” was a reference to having sex and indicated that his reference to giving Ms S. “150 when [he got] there” was his offering to pay Ms S. $150.00 if she would “just build”, (meaning “just chill”, “keep cool” or “keep calm”) and keep on having sex with him.

3. In the course of cross-examination, Mr G. denied any knowledge or awareness of Ms S. having blocked messages from him at some point following those acknowledged text messages sent in April of 2020, (i.e., because he was said to have sent her links to pornography), or of Ms S. subsequently “unblocking” his ability to send her messages. He did acknowledge sending Ms S. at least one link to a pornographic video, but claimed it was a pornographic cartoon, (i.e., rather than a depiction of real human beings), that it did not depict genitalia, and that it had nothing to do with a stepfather and stepdaughter -- although he did admit the cartoon characters were male and female.

iii. In relation to the messages Ms S. says were sent in June of 2020, set forth on page 3 of Exhibit 9:

1. Apart from accepting the 12:46am timestamp, Mr G. testified in his examination in chief that he could not remember when the text messages were sent, apart from suggesting that they possibly were sent by him as he was heading to London. In cross-examination, he nevertheless then disputed that the messages were sent in June of 2020, suggesting that they may have been sent later that year.

2. Mr G. also admittedly was “not quite sure” if he called Ms S. in addition to texting her, on the occasion in question.

3. Notwithstanding his acknowledged lack of memory in that regard, Mr G. asserted that there had been an additional text message sent to him by Ms S., which had not been preserved, in which she supposedly had told him to leave her alone, as the sexual activity she had “given” him was “just … the one time and that’s it”, following which she had threatened to “tell her mom” if Mr G. did not stop bothering her.

iv. In relation to the messages Ms S. says were from November of 2020, set forth on pages 2, 4 and 7 of Exhibit 9:

1. Mr G. initially said, during the course of his examination in chief, that he could not confirm or indicate the time, day or month of those messages, apart from a memory that he had gone to the B.C. residence to find that Ms S. was not there. However, he then indicated, during the course of cross-examination, that he actually had no reason to disagree that they were sent in November of 2020.

2. Mr G. confirmed that, in asking Ms S. whether there was “any change”, he was asking if there was any chance of Ms S. “giving [him] sex again”.

3. Mr G. confirmed that his comment “I give 250” referred to him making a further offer to pay Ms S. $250.00 if she would have sex with him again.

v. In relation to the messages Ms S. says were from January of 2021, set forth on pages 4 and 8 of Exhibit 9:

1. Mr G. initially indicated that he was not sure whether the messages were sent in January of 2020 or January of 2021, although he then indicated they would have been sent in the same year of his arrest; i.e., in January of 2021.

2. Mr G. also initially indicated that all communications with Ms S. on the occasion in question were by text, (i.e., without being supplemented by any telephone conversation), although his testimony shortly thereafter made reference to “another conversation”, as well as another “call” Ms S. had made to him regarding a loan relating to her car. He also claimed that there were additional texts exchanged in relation to the preserved conversation that were “missing”, (i.e., messages that had not been preserved and/or entered in evidence at trial), wherein Ms S. had indicated a desire to move out of her mother’s residence if she only had the money to do so.

3. Mr G. confirmed that his reference to Ms S. not having to rush to “pay [him] back” related to money he had lent to Ms S. to repair damages done to the car of another lady, who wanted $450.00 to $550.00 from Ms S. to pay for those damages. In that regard:

a. During his examination in chief, Mr G. indicated that Ms S. had contacted him in that regard, via text messages and by telephone, approximately “a week or so” before her suicide attempt in early January of 2021, although he also agreed in cross-examination with the indication by Ms S. that the relevant underlying accident had occurred in November of 2020.

b. According to Mr G., Ms S. described a “problem” she had, whereby she had “run into the back of someone car” (sic), causing damage that the person wanted repaired. He could not recall whether the indicated cost of the repairs was $450.00 or $550.00 but does recall indicating to Ms S. that she should try to negotiate that amount, as the necessary repairs could be less expensive if they were made with used parts rather than new ones.

c. In the result, Mr G. says, he indicated his willingness to provide Ms S. with the requested money. In that regard, Mr G. acknowledged that Ms S. said she would repay the money by the time of her birthday in February. He also acknowledged that she asked him not to tell her mother about the accident or the loan, as Ms S. was afraid that her mother would “cuss” or “curse” at her.

d. According to Mr G., he then provided Ms S. with the requested money during a further visit he made to London and R.S., later the same week, or one to two weeks later. In that regard:

i. Mr G. indicated during the course of cross-examination that the amount of money he provided to Ms S. in that regard was somewhere in the region of $400.00 to $500.00.

ii. Mr G. said that he initially did not ask Ms S. for any further sexual activity in exchange for his providing her with money for the car repairs, although he eventually did so.

iii. In particular, Mr G. testified that, after providing Ms S. with the requested money for those car repairs, he told her to pay him back if she could, but also told her that she would not have to worry about that if she changed her mind and agreed to have more sex with him. In the course of cross-examination, he said that conversation happened in late November or sometime in December of 2020.

e. Mr G. says he nevertheless wound up forgiving the loan entirely in January of 2021; i.e., informing Ms S., after she had tried to cut herself, that she could just “forget about it”. In the result, Mr G. says, the money he provided to Ms S. in that regard was never given back, and he did not ask her for its repayment.

4. Mr G. also testified that the text messages he was sending to Ms S. in January of 2021, referring to the loan and his willingness to e-transfer more money to Ms S., were an effort by him to determine whether concerns about money were a problem that had factored into her suicide attempt. He denied that his offers to provide Ms S. with more money and other references to money matters, on that occasion, were an effort to have her engage in more sexual activity with him.

5. In relation to his comment indicating “I just told you R.is not what she say, it’s how she say it”, Mr G. explained that he was referring to his understanding that the suicide attempt by Ms S. was prompted by R.S. speaking very aggressively to Ms S. about an incident wherein Ms S. mistakenly had left a car window open and a house key in the exterior lock before entering the B.C. residence.

u. In the course of his testimony, Mr G. also addressed the circumstances of his arrest, and how and when he says he learned of the accusations and charges made against him in relation to this matter. In that regard:

i. Mr G. says he did not learn of the accusations or charges until the day of his arrest; i.e., on February 27, 2021.

ii. According to Mr G., he was involved in a motor vehicle accident that rainy day, in Milton, Ontario, in respect of which Mr G. himself called the police. He says that, when the police arrived, and “ran his name”, they asked him to step out of the tow truck where he had been waiting.

iii. In his testimony at trial, Mr G. said that, when he exited the tow truck, he was advised by the police that there was a warrant outstanding for his arrest, and that he was then arrested and placed in handcuffs, without the arresting officer saying anything to him about what the arrest warrant was for, or what the charge or charges were. He says he was required to enter a police vehicle, where he was obliged to wait a further period of time while the police apparently were carrying out some form of further inquiries – although he also noted that the police removed his handcuffs at some point during that process.

iv. Mr G. described how, on the same day, he then initially was transported by the police from Milton to Mississauga, where he was “locked up” for a time before being transported by the police, later that same day, to a location on or near Highway 401, approximately half-way between Mississauga and London, and somewhere in the area of Guelph. At that point, Mr G. says, he was transferred into the custody of the London Police, who brought him back to London and the “London Police lock up”. According to the testimony of Mr G. during his examination in chief, he still knew nothing about the charge or charges against him during that entire process. In particular, Mr G. indicated during the course of his examination in chief that he was not advised of the nature of the charge or charges against him until he met Detective Ryan Patterson of the London Police Service, to whom he provided a recorded statement during a police interview conducted later the same day. It was only then, Mr G. said, that he learned he was facing two charges of sexual assault. In that regard:

1. Mr G. initially testified that it was also his recollection, (although he admittedly was unsure in that regard), that Detective Patterson initially may have referred only to the existence of two charges, with references to their sexual nature and/or to “sexual assault” only being provided later during the course of the interview.

2. Mr G. also claimed that Detective Patterson initially did not indicate who the complainant was, although Mr G. learned during the course of the interview that it was Ms S. Mr G. claimed that, up until that point, he had been under the mistaken impression that the complainant was R.S., as he and R.S. previously had argued about something.

3. According to Mr G., when he learned that Ms S. was the complainant and subject of the two sexual assault charges, he thereafter felt “ashamed” during the police interview, “knowing that [he] was dating her mom”.

v. Mr G. confirmed that he was released from custody the same day, some time after his police interview with Detective Patterson.

v. In the course of his testimony, Mr G. confirmed that Ms S. had indicated to him, “a few times”, that she would “ruin [his] life”. In that regard, he said he could not remember the first time that had happened, although he recalled it happening one time on “the staircase in the living room”. He says that Ms S. had never indicated how she would do that, although he “took it … personal” (sic) and thought Ms S. was going to possibly “poison”, “kill” or otherwise “get rid of” him; “something like that”. However, he also acknowledged that he had never reported such threats to the police.

w. In the course of his testimony, Mr G. nevertheless specifically denied that he had ever indicated to Ms S. that her mother would not believe her, if she told her mother about the sexual activity between her and Mr G., because Ms S. had stolen money from her mother when she was younger.

x. Finally, and more generally, I note that Mr G. firmly denied that he had ever sexually assaulted Ms S. Without limiting the generality of the foregoing:

i. Mr G. testified that his acknowledged sexual activity with Ms S. on the living room couch of the B.C., (in November of 2019 or otherwise), occurred with her consent. Without limiting the generality of the foregoing:

1. Mr G. specifically denied numerous particulars of the first sexual assault as described by Ms S., including but not limited to: his approaching Ms S. from behind in the kitchen to kiss her and grab at her wrists; Ms S. attempting to resist his kisses by turning her head from side to side; his grabbing Ms S. by the wrist to led her into the living room and towards its couch; that he told Ms S. not to worry as it was okay now that she was 18 and/or that it was okay to have a “thing on the side” -- although he acknowledged likely thinking such things at the time; that he used a condom he had retrieved from his wallet; that he had vaginal intercourse with Ms S. as she lay on her back and he was on top of her; that Ms S. had kept “tensing up” such that he repeatedly had to speak to her about that; or that he ejaculated – whether inside a condom, inside or vagina or otherwise.

2. Mr G. specifically denied hearing Ms S. say “C., stop” on that occasion.

3. Mr G. also specifically denied that Ms S. had ever told him “No C.” or “C. No” on that occasion.

ii. Mr G. denied having sex with Ms S. in her bedroom, without her consent, in January of 2020. That included specific denials of all the particulars of that sexual assault described by Ms S., which were put to him successively by Crown counsel.

iii. According to Mr G., it was Ms S. who initiated sexual activity with him on the two occasions he described; i.e., that it had been her idea on both occasions. He emphasized her initiation of the sexual activity as a reason why he knew the resulting sexual activity he described was consensual.

28With all of the trial evidence in mind, I turn next to comments about witness credibility and reliability.

ASSESSMENT OF WITNESS CREDIBILITY AND RELIABILITY

29The Crown’s case obviously depended in very large measure on the testimony of the complainant, A.S., (as she was the only person present with the accused at the time of the events central to the allegations of sexual assault), and I accordingly have spent considerable time carefully reviewing and considering, in detail, possible concerns relating to her credibility and reliability.

30Having done so, I nevertheless am strongly of the view that Ms S. was a credible, reliable, and extraordinarily compelling and believable witness. I say that for numerous reasons, which include the following:

a. Throughout her two days of testimony at trial, Ms S. presented as someone with obvious and considerable intelligence, and a remarkably detailed memory. In that regard:

i. Although her memory was not perfect, (e.g., insofar as she had failed to note the specific Saturday in November of 2019 when the first sexual assault she described had occurred), her account of events was replete with incidental details about a wide variety of matters; e.g., relevant dates and chronological ordering, specific locations, the positions and movements of individuals and items of clothing, the specifics of words exchanged during conversations and the manner and order in which such dialogue and other electronic communications occurred, the details of where and when items were purchased and how much they cost, and vivid descriptions of her thoughts and reactions to various events that demonstrated considerable maturity, self-awareness and perspective. Not all of that evidence was substantively relevant to the matters I was called upon to address and decide in this proceeding, but it certainly instilled a very strong impression that Ms S. was extraordinarily capable of making accurate and complete observations of the various events addressed during the course of her testimony, and of recalling those events vividly during her time in the witness box.

ii. Her descriptions of what happened immediately before, during and after the two sexual assaults she described were particularly vivid and detailed; e.g., with Ms S. providing very precise indications of where she and Mr G. were located at specific points in time within the residence and in relation to each other, (i.e., within the kitchen, living room and/or within her bedroom and on her bed), the specific sounds she heard and the specific words that were and were not said during conversation, the specific order and manner in which items of clothing were removed, the specifics of sexual activity – although the latter seemed inherently more difficult for her to discuss – and the thoughts and emotions she was experiencing at the time. Her testimony in relation to those particular incidents left me with a definite impression of someone recalling details that had been seared indelibly into her memory.

iii. While there were a few occasions during the course of her extended testimony when Ms S. initially erred in her indication of particular dates and other details, (e.g., whether the letter to immigration authorities entered as Exhibit 1 at trial was the one written by her in grade nine at the age of 14 or 15 or the one written coming into the summer of 2019 as she was completing high school, or the precise order in which particular words had been said), she usually corrected herself almost immediately thereafter on such occasions. At other times, when she herself acknowledged that she was having specific difficulty recalling a particular detail in relation to events that had occurred, (years before the trial), she proactively requested an opportunity to review her more contemporaneous statement provided to the police to refresh her memory; i.e., confident in a separate memory that she had recalled such details on that earlier occasion, closer in time to the events in question.

b. Such conduct also reinforced my impression that Ms S. was also a careful and candid witness, who was doing her utmost to recall events accurately and fairly. At no time during her almost two complete days in the witness box did I form the impression that she was trying to do otherwise. Without limiting the generality of the foregoing:

i. In my view, Ms S. was remarkably candid and forthcoming about matters that might cause some to view her in a negative light. For example, she readily admitted stealing money from her mother when she was a child, routinely smoking marihuana in an effort to promote her mental health and embarking on the regular use of serious illicit narcotics such as MDMA, “Molly” and/or “Ecstasy” as well as hallucinogenic mushrooms in the wake of the alleged sexual assaults. She also readily and unreservedly confirmed, (albeit with obvious feelings of regret and shame), that she had said various specific hurtful things to her mother; e.g., that she did not care if her mother married or died, and a hope that Mr G. would ruin her mother’s life. Ms S. also proactively offered insights into her thoughts and feelings whereby she had questioned, (as many survivors of sexual assault do, albeit in a manner nevertheless unjustified and quite unfair to themselves), whether she perhaps had done something to “deserve” her victimization through sexual assault; e.g., insofar as she wondered whether the sexual assaults she described and endured were somehow “God’s punishment” for her having engaged in the smoking of marihuana.

ii. At the same time, I was struck by the manner in which Ms S., despite the sexual assaults she was describing, still was ready and willing to proactively indicate and/or readily acknowledge many positive qualities and generous actions of Mr G. both before and after the sexual assaults she described; e.g., the enthusiastic support he showed in relation to her athletics, his emotional support and sympathetic ear in relation to her sometimes challenging relationship with her mother, (including his earlier innocent visits to sit on the foot of her bed – but never lie on it -- to discuss such matters), and his intermittent financial support – to that extent that was not coupled with inappropriate suggestions of such financial assistance being tied to her providing a suggested “quid pro quo” of sexual interaction with Mr G. Ms S. also readily acknowledged in cross-examination that Mr G. seemed genuinely concerned about her welfare and trying to make her feel better in the text messages he sent in January of 2021, after she had tried to take her own life.

iii. Ms S. also readily acknowledged in cross-examination that Mr G. had never threatened her; e.g., by suggesting that he would tell her mother about the earlier sexual activity between her and Mr G. if Ms S. refused to engage in further sexual activity.

iv. Such considerations reinforced my impression of Ms S. as a witness who was taking her oath seriously and doing her best to provide her testimony in a completely honest, sincere, and even-handed manner.

c. There frankly were no aspects of the extended account of events provided by Ms S. during her testimony that I found to be implausible. Without limiting the generality of the foregoing:

i. In my view, that includes the testimony Ms S. provided about Mr G. still visibly holding on to the used condom while he remained in the living room of the B.C. residence after the first sexual assault Ms S. described, even after she had gone upstairs to shower and change before descending thereafter to pass through the living room on her way to cleaning up the kitchen before her mother came home. In the course of cross-examination, (albeit not in closing submissions), defence counsel suggested implicitly if not explicitly that the description of Mr G. hanging on to a used condom in that extended fashion was unnatural and unbelievable. However, I do not think that was the case when one bears in mind the prevailing circumstances. As Mr G. himself acknowledged during the course of his own testimony, R.S. frequently was suspicious of his conduct, and often would act like a “detective” in that regard; e.g., going so far as to use his keys to inspect his vehicle and to examine the contents of his wallet. Her discovery of a freshly used condom anywhere in the B.C. residence, (e.g., even in a rubbish container), at a time when Mr G. had not visited the residence for a number of weeks, would have been a particularly damning and telltale find that no doubt would have led to R.S. demanding further information from Mr G. and/or her daughter. In the circumstances, Mr G. had every reason to hang onto that freshly used condom to ensure that it did not inadvertently come to the attention of R.S.

ii. Nor, in my view, is there any logical disconnect between the descriptions of sexual assault provided by Ms S., wherein she felt unable to mount successful opposition or resistance to what Mr G. was doing, and her testimony, (supported by the video clips presented at trial), that she subsequently was able to engage in more vocal and successful efforts to oppose and deny Mr G. the further sexual activity with Ms S. that he desired. As recognized by our appellate courts, when discussing reasons for delayed disclosure by complainants of the sexual abuse they have experienced at the hands of others, it often takes time, (indeed sometimes considerable time), for victims of such trauma to acquire more understanding, overcome feelings of confusion, and develop the additional self-confidence sometimes required to surmount fear of abusers and/or the consequences of opposing further abuse and/or disclosing abuse that has already taken place. In my view, the personal journey described by Ms S. in that regard, in terms of her mounting frustration, anger and despair about the situation into which she had been placed vis-à-vis Mr G., and her growing determination and efforts to deny Mr G. further opportunities to abuse her, is entirely plausible.

d. I draw no adverse inference whatsoever about the credibility and/or reliability of Ms S. based on her acknowledged failure to engage in continuous struggle and resistance at the time of the sexual assaults she described, her lack of immediate “hue and cry” and acknowledged continued interactions with Mr G. thereafter, or her extended delayed disclosure of those described sexual assaults to others such as Mr M. and the police. In that regard:

i. As noted, and emphasized above, a sexual assault victim is neither required nor expected to strenuously resist a sexual assault, engage in complete avoidance of an assailant after such an attack, and/or immediately report such misconduct. Any suggestion that Ms S. should be disbelieved because her behaviour deviated from some notion of how a “real” victim of sexual assault would have behaved necessarily would rely on completely discredited rape myths and stereotypes.

ii. In this particular case, there also were entirely rational, obvious, and understandable reasons for the behaviour of Ms S. Without limiting the generality of the foregoing:

1. Mr G. was older, larger, and stronger than Ms S. and, as she noted and emphasized in the course of her testimony, she was entirely alone in the B.C. residence at the time of the sexual assaults she described, with no one realistically available to hear any cries for help or come to her aid. In my view, having regard to Mr G. clearly indicating by his actions that he was intent on persisting with his sexually assaultive behaviour despite the repeated indications of “no” and pleas for him to “stop” being made by Ms S., her described decisions that resistance was futile, made “in the moment” on each occasion, seem entirely plausible and understandable.

2. In her testimony, Ms S. made it clear, (and I accept), that she was protective of her mother, who had experienced significant unhappiness and “fall out” in the course of past relationships, and who seemed extremely happy in her relationship with Mr G. In my view, it was entirely realistic for Ms S. to fear and/or expect that disclosure of sexual activity between her and Mr G., (even if that sexual activity was completely unwanted from the perspective of Ms S.), inevitably would be emotionally devastating to her mother. As Ms S. herself emphasized during the course of her testimony, non-disclosure of the sexual assaults accordingly was a course of action Ms S. unselfishly was inclined to pursue if only for the benefit her mother, although Ms S. admittedly nevertheless found that decision increasingly hard to maintain when her mother and Mr G. were treating her with perceived disrespect, and as she increasingly, on further reflection, came to resent her mother for effectively having created a situation that had allowed her daughter to be sexually assaulted in their home.

3. Finally, in my view, it needs to be recognized that, at the time of the sexual assaults described by Ms S., she was clearly a vulnerable person. She was young, had insufficient resources to live independently despite her hard work, already was struggling to finance her continued university education, and effectively was dependent on continued cohabitation at the B.C. residence with her mother, (her only relative here in the city of London), to maintain her existence and study/career goals. In my view, it also was entirely realistic for Ms S. to fear and/or expect that, if her mother reacted to disclosure of sexual activity between her daughter and Mr G. with disbelief and/or hostility, that might lead to a breakdown in the relationship between mother and daughter and/or Ms S. having to leave the B.C. residence with attendant hardships – all of which regrettably came to pass.

e. Nor do I draw any adverse inference or inferences about the credibility and/or reliability of Ms S., in relation to her firm denials that she ever wanted, initiated and/or consented to sexual activity with Mr G., from recorded indications that Mr G. was referring to her “giving” him sex or “stopping” in that regard, and/or recorded indications that Ms S. was saying that sexual activity between her and Mr G. could and would not “continue”. Although defence counsel placed emphasis on such indications, in my view:

i. the references to Ms S. supposedly “giving” sex to Mr G., and/or to her “stopping” to “give” sex to Mr G., were his characterizations, not hers;

ii. Ms S. made it absolutely clear that she completely disagreed with the suggestion she had “given herself” to Mr G., in terms of sexual contact, emphasizing that she had expressly said “no” and “stop” multiple times; and

iii. regarded in context and more generally, the word “continue” used by Ms S. was inherently neutral, and entirely consistent with her simply indicating resolve and determination that the previous non-consensual sexual activity between Mr G. and her would not be repeated.

f. I also was not persuaded by defence suggestions that the reliability of Ms S., or the accuracy of her memory as to underlying events, was impaired by her acknowledged use of illicit narcotics. Without limiting the generality of the foregoing, the candid testimony Ms S. provided in that regard was detailed and precise, and conveyed the very definite impression that, in relation to her drug use, she was very distinctly aware and mindful of when, where, what and how much she was using, the effect that each drug would and would not have on her at the time, how long those effects would last, and the effects or lack thereof she experienced thereafter. I accept her uncontradicted testimony that her recreational use of marihuana in modest amounts served to bring temporary feelings of relaxation and euphoria that did not impinge on mental abilities or memory, as reflected in her extraordinary academic achievements during and despite such use of marihuana. Indeed, she noted, and I accept, that she frequently used marihuana before attending class because she found that it helped with her concentration. I also accept her uncontradicted testimony that her use of more serious illicit narcotics began only after the first sexual assault she described, (with her first such use involving only the drug she referred to as “Molly”, and occurring in an isolated fashion on a single occasion shortly before December 10, 2019), that the more serious illicit drugs she described similarly were not consumed at or around the time of the second sexual assault she described, that her use of such illicit narcotics intensified only during the summer of 2020, (well after the time of both of the alleged sexual assaults, and during the July and August months of that year when Mr G. did not attend the B.C. residence), before ending completely by Labour Day of 2020, and that her use of such illicit drugs did not affect or impair her ability to make accurate observations or have accurate recollections in relation to the underlying events giving rise to the charges set forth in the indictment or the surrounding events she described. In particular, and without limiting the generality of the foregoing, having regard to the obvious and sustained demonstration of her extremely detailed recollection of what happened before, during and after the relevant times and occasions in question, which she generally provided without any hesitation whatsoever, and with such remarkable consistency, I accept her testimony that her use of such illicit substances had no appreciable impact on her memory or ability to recall such events in vivid detail.

g. My very positive impressions as to the credibility and reliability of Ms S., and the accuracy of her detailed memories, were reinforced by the internal consistency of her testimony. Without limiting the generality of the foregoing:

i. In my view, there were no significant alterations or inconsistencies in her extended account of underlying events.

ii. Nor, in my view, were any significant inconsistencies in the testimony of Ms S. elicited, exposed or otherwise evident during the course of her extended cross-examination by defence counsel; something that was even more remarkable having regard to the reality that defence counsel adopted the not unusual, and sometimes effective, method of cross-examining a witness about his or her recollection of events without addressing those events in chronological order. In particular, in this case, defence counsel posed questions about events that generally started with more recent events before working backwards in time, (i.e., to have Ms S. answer questions about progressively earlier events), while occasionally jumping further backwards and forwards in the underlying chronology to pose incidental questions about the events Ms S. was describing and/or the anticipated version of events to be put forward by Mr G. during the course of his testimony; a process that literally required Ms S. to provide her version of events forwards, backwards and sideways in time. Despite such cross-examination, Ms S. remained unshaken in her detailed account of when and how underlying events addressed by her testimony had and had not occurred. In particular, during the course of that extended cross-examination, Ms S. politely, but quite remarkably, repeatedly corrected defence counsel whenever suggested deviations from her extended detailed account – even relatively minor ones -- were put to her in a manner that frequently was somewhat random.

iii. At most, defence counsel was able to highlight, during cross-examination and closing submissions, that Ms S. initially failed to recall or mention, during her initial testimony at trial, having indicated during her statement to the police that the fingers of Mr G. touched her between her legs during the incident she described of attempting to ascend the residence stairs while Mr G. was grabbing at her. However:

1. Ms S. readily acknowledged and confirmed having included that additional detail in her earlier police statement, once her memory in that regard had been refreshed by reference to a transcript of that statement.

2. Ms S. also readily indicated and confirmed that the relevant touching between her legs on that occasion, by the fingertips of Mr G., involved a touching of an area near her calf or ankle without any touching of or near her genital area, and there was absolutely nothing to contradict her testimony in that regard.

3. In the result, I did not view the initial failure of Ms S. to remember the particular touching in question as significant; i.e., insofar as it related to an incidental and non-sexual touching of an area technically “between her legs” that in my view had little or no bearing on the main points of her testimony, such as the overt acts of sexual touching by Mr G. that she described, the forcible ways in which he actually succeeded in grabbing her and/or controlling her movements, or his persistent efforts and requests to engage in more unwanted sexual activity with her.

4. Moreover, I think it fair to say that, by the time the relevant cross-examination of Ms S. on this particular point was completed, there really was no inconsistency between her testimony at trial and her earlier statement to the police. Her memory in that regard was not impeached but refreshed.

iv. On other occasions when Ms S. herself proactively expressed some uncertainty as to whether certain specific conduct had occurred during the first and/or second sexual assault, (e.g., as to whether Mr G. had made any effort to engage in oral sex at the time of the second sexual assault), and Ms S. asked to refer to her earlier statement to the police to refresh her memory in that regard, defence counsel abandoned further questioning in relation to the issue and/or possible inconsistency and moved on.

h. In my view, although no corroboration of a sexual assault complainant’s testimony is required, the credibility and reliability of Ms S., and my perception that she was providing a fair and accurate account of events during the course of her testimony, also received a measure of unrequired support from its “external” consistency with the testimony provided by the Crown’s additional witnesses, Ms T. and Mr M., and from the preserved text messages and video recordings described above. Without limiting the generality of the foregoing:

i. While neither Ms T. nor Mr M. could speak directly to what happened during the underlying occasions of sexual assault described by Ms S. – a reality not uncommon in cases of alleged sexual assault said to have been perpetrated in a private setting, in the absence of anyone other than an alleged assailant and his or her victim:

1. Ms T. was able to recall with clarity that she had been contacted by Ms S. at the time of the occasion Ms S. described of Mr G. lying on the bed in her bedroom, apparently waiting there for Ms S. to return and with sexual intent. In that regard:

a. I am mindful that Ms T., during the course of her testimony, was unable to recall seeing any video or other images Ms S. may have sent her at the time, depicting Mr G. lying on the bed of Ms S. in her bedroom.

b. Having said that, Ms T. also indicated that it was possible that the sending of such images or videos by Ms S. occurred at the time, but that she simply does not remember that now owing to a number of intervening concussion injuries that admittedly affected her memory to some extent. In the result, I think it fair to say that the testimony of Ms T. actually did not contradict that aspect of the testimony provided by Ms S.

c. In any event, notwithstanding her acknowledged inability to recall whether or not Ms S. had sent her any images or video of Mr G. at the time of the incident she was describing, Ms T. gave clear and uncontradicted evidence, not challenged by any cross-examination, that she has a distinct memory of her best friend Ms S. contacting her electronically on a weekend in 2019 or 2020, indicating that Ms S. was alone in her residence with her stepfather Mr G., as her mother had gone to the greater Toronto area to visit family, and that Ms S. was scared as she feared her stepfather was going to “try to do something” to her and she had “nowhere to go”, in turn leading to a discussion between Ms T. and Ms S. as to how the latter might leave the residence and go elsewhere, or protect herself by placing objects at or near the entrance to her bedroom so that she would be aware of Mr G. trying to enter that bedroom while she was sleeping. In my view, a usual call from her best friend, indicating that best friend was in a position of danger, and seeking guidance and support, is something likely to have stood out in the mind of Ms T., and remained there, despite her inability to remember all details of the conversation because of her acknowledged memory difficulties.

d. In my view, that testimony from Ms T., confirming the fact that such a conversation between her and Ms S. took place around the time of the sexual misconduct of Mr G. alleged by Ms S., provided at least some evidence rebutting any implicit if not explicit suggestion that Ms S. had fabricated her allegations and evidence long after the fact.

2. Through his testimony, Mr M. confirmed, for the most part, the manner in which the sexual assaults described by Ms S. were initially disclosed by Ms S. to persons other than Mr G. and then to the police, as well as the sad deterioration of the relationship between Ms S. and her mother that occurred during the period after those alleged sexual assaults. In that regard:

a. I am mindful of the fact that Ms S. indicated a belief in her testimony that she had disclosed both sexual assaults to Mr M., and that Mr M., in his testimony attempting to recall and describe what Ms S. had said to him at the time of that disclosure, recalled only broad details that included Ms S. making references to conduct that included touching followed by kissing, which in turn was followed by sexual intercourse, and to locational references that had included kissing and grabbing in the kitchen of the B.C. residence and sexual intercourse that had occurred in the bedroom of A.S. On its face, that might suggest an inconsistency in the accounts of sexual assault provided by Ms S. to others over time; e.g., in the sense that Ms S. may have been fabricating additional details in the accounts she successively provided, so as to allege two occasions of sexual assault rather than one. On its face, that might also suggest an inconsistency if Ms S. was indicating to Mr M. that there had been alleged occasion of sexual assault which began with Mr G. kissing and grabbing her in the kitchen that concluded with sexual intercourse taking place in her bedroom, insofar as neither of the two sexual assaults described by Ms S. at trial included that combination of events.

b. However, I also am mindful of the absence of anything in Mr M.’s testimony to suggest that Ms S. was purporting to provide him, at the time, with a completely exhaustive detailed account of what had happened between her and Mr G. In my view, other aspects of Mr M.’s testimony, including his indication that Ms S. was attempting to communicate with him while “frantically crying” before his attempts to calm her down, his slightly different indications that he listened to her until she finished but also “until it got to the point where he asked [or] said ‘I’m phoning the police’”, (thus suggesting a possible effective interruption of the account Ms S. was providing), along with his indication that Ms S. did not want to talk about the matter anymore after his indication that he wanted or intended to call the police), strongly suggest that Ms S. actually was not able to provide Mr M., or intent on providing Mr M., with a complete account of the alleged sexually assaultive behaviour of Mr G. at the time of her initial disclosure. In my view, that inference is consistent with the indications of Ms S. in that regard.

c. I also am mindful of Mr M.’s positive indication, during the course of his testimony, that Ms S. never indicated to him that all the events she was describing, in relation to the sexually assaultive behaviour of Mr G., had occurred on the same day.

d. Moreover, in his testimony, Mr M. himself indicated and acknowledged that his memory of what Ms S. told him that morning admittedly was incomplete, and that he could not recall all that she had told him because “stuff was going through his mind” at the time, despite his efforts to listen intently. He also proactively noted that he was recalling things Ms S. had told him that were not noted in his documented statement to the police; i.e., suggesting that he had omitted to include details at the time he had spoken to the police, or that they had not been included in the prepared written record of what he had told the police.

e. In the result, I did not view the trial testimony of Mr M. as being necessarily inconsistent with the testimony of Ms S. at trial, or indicative of her providing contradictory or inconsistent accounts of the alleged sexual assaults over time.

ii. As for the extent to which the preserved text messages and video recordings provided support for the version of events recounted by Ms S.:

1. I am very mindful that none of that preserved evidence was contemporaneous with or directly relates to the sexual assaults described by Ms S., which were said to have occurred at least several months before the earliest preserved text messages. Without limiting the generality of the foregoing, none of that evidence of preserved text messages or video recordings speaks to the state of affairs at the time of the alleged sexual assaults, and in particular, to whether Ms S. may have subjectively consented to sexual activity with Mr G. on those earlier occasions and/or indicated such consent to Mr G. by her words or gestures. Nor, in my view, does the fact that Mr G. may have refrained from sexually assaultive behaviour during video-recorded interactions on later dates negate the possibility that he may have done so on the earlier occasions described by Ms S. In other words, I do not draw any inference from such after the fact conduct that it reflects the approach to sexual activity by Ms S. and/or by Mr G. at the time of the alleged sexual assaults.

2. However, in my view the preserved text messages and video recordings do confirm the testimony of Ms S. that Mr G., at least after the time of the alleged sexual assaults, was exhibiting behaviour emphasizing his ongoing desire for sexual activity with Ms S., (despite the fact that he was in an ongoing relationship with R.S.), and that he persisted in pleas, suggested rationalizations and even proffered monetary bribes in that regard in the face of firm, absolute and repeated indications from Ms S. that she did not want to engage in any further sexual activity with Mr G.; i.e., that he would not accept “no” as a final answer from Ms S., in terms of her clearly and repeatedly stated unwillingness to engage in sexual activity with him. Moreover, in my view the ability of Ms S. to describe such events independently and consistently without reference to the more specific text messages and video recordings that supported them made it clear that she had an independent recollection in that regard, without making any apparent effort to ensure that her testimony was tailored to match the available documentary evidence. In other words, the preserved text messages and video recordings simply reinforced my impression of Ms S. as a credible and reliable witness.

i. If only to confirm my rejection of a consideration that otherwise might have undermined the credibility of Ms S., I do not accept the implicit if not explicit suggestion apparently intended by Mr G. during the course of his testimony and/or by defence counsel during the course of closing submissions that Ms S. had any demonstrated motive to fabricate allegations or evidence in this case. In that regard:

i. I am mindful of general principles regarding evidence of a complainant’s motive to fabricate allegations and evidence, or the lack thereof, emphasized repeatedly by our Court of Appeal in decisions such as R. v. L.L., 2009 ONCA 413, supra, at paragraphs 44 and 53, and R. v. Bartholomew, 2019 ONCA 377, [2019] O.J. No. 2371 (C.A.), at paragraphs 20-23. Without limiting the generality of the foregoing:

1. From a prosecutor’s point of view, a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth.

2. Conversely, from the defence perspective, proof that the complainant has an ulterior motive, or a motive to fabricate his or her allegations and evidence, may provide a compelling alternative to truth of the complainant’s allegations.

3. However, as recognized and emphasized earlier in these reasons, an accused – and Mr G. in particular -- is not required to prove anything, and accordingly has no obligation to prove that the complainant has an ulterior motive or a motive to fabricate his or her allegations and evidence. At all times, the onus remains on the Crown to prove guilt beyond a reasonable doubt.

4. Moreover, while evidence of a complainant having a motive to fabricate allegations and evidence may be lacking, it is important to recognize and remember, (as I do), that the absence of evidence of motive to fabricate is not the same thing as absence of motive to fabricate. In other words, there is a significant difference between absence of proved motive and proved absence of motive. In particular:

a. Simply because there is no apparent reason for a witness to lie, it does not logically follow that the witness must be telling the truth. Put another way, the fact that a complainant has no apparent motive to fabricate does not necessarily mean that the complainant has no motive to fabricate.

b. The reality is that a person’s motives can sometimes be hidden. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all. It accordingly is dangerous and impermissible to move from a complainant’s apparent lack of motive to fabricate to a conclusion that the complainant must be telling the truth.

5. Although absence of an apparent motive to fabricate is a proper factor to consider in assessing the credibility of a complainant, it is but one of many factors to be considered.

ii. In this case, it apparently was being suggested implicitly if not expressly by defence counsel during the course of cross-examination of Ms S., before being suggested by Mr G. expressly during the course of his cross-examination, that the attitude of Ms S. towards Mr G. changed entirely and adversely following the incident during which Ms S. overheard Mr G. and her mother having sex in their bedroom; an incident which, (according to the testimony of Mr G.), took place after Ms S. supposedly had engaged in consensual sexual activity with Mr G. It was only thereafter, according to Mr G. and the apparent theory of the defence, that Ms S. repeatedly refused to consent to further sexual activity with Mr G., including her repeated refusals to accept his persistent proposals that she engage in sex with him in exchange for money and/or forgiveness of a loan he had made to Ms S. providing her with money to address the cost of repairs made to another vehicle after a motor vehicle accident. The suggestion, made express by Mr G., was that Ms S. somehow was made angry and/or jealous that Mr G. had engaged in obvious sexual activity with the mother of Ms S., after Ms S. and Mr G. had engaged in consensual sexual activity, thereby prompting Ms S. to have a drastic change of attitude towards him, in turn allegedly leading her to fabricate her allegations and evidence.

iii. I find the suggestion completely implausible and preposterous. All of the evidence presented at trial, including the testimony of both Ms S. and Mr G., made it absolutely clear that, at all material times, and to the complete knowledge and awareness of all concerned, Mr G. remained in an ongoing conjugal relationship with the mother of Ms S.; e.g., routinely sleeping with R.S. in her master bedroom of the residence whenever Mr G. came to stay overnight at the B.C. residence. Both Ms S. and Mr G. also indicated that, after the sexual activity between them, there was discussion of keeping that a secret. In such circumstances, I think it ludicrous to suggest that Ms S. was somehow shocked, surprised, angered and/or made jealous by indications that Mr G. and her mother continued to engage in physical intimacy after sexual activity between Mr G. and Ms S., or that Ms S. somehow became so jealous of the sexual activity between her mother and Mr G. that she resolved to embark on fabricated allegations or evidence addressed by this proceeding. Moreover, as emphasized by Crown counsel, the suggestion was belied by Mr G. himself, in the initial timeline he provided to the police; i.e., insofar as he initially suggested, during the course of his police interview, that Ms S. invited him to engage in digital penetration of her on the stairway of the B.C. residence in December of 2020, well after the incident of Ms S. overhearing her mother and Mr G. having sex in February of 2020, and well after the sending of her text messages in April of 2020 refusing the requests of Mr G. to engage in further sexual activity.

j. As noted above, the demeanor of someone in the witness box cannot be the most important consideration in assessing credibility and reliability of a witness, for a multitude of reasons. However, it is also not irrelevant. In the case of Ms S., I was impressed by the steadfast confidence and earnest manner in which she recounted events throughout the course of her testimony. There were times when she clearly seemed to be struggling to suppress upset and maintain her composure; e.g., when describing the incidents of sexual assault, her feelings of being someone at fault and/or deserving of punishment in that regard insofar as she had broken the rules of her mother’s household and effectively placed herself in a more vulnerable position vis-à-vis Mr G., her downward spiral into negative behaviours and increasing reliance on illicit substances as a coping mechanism following the described sexual assaults, and the breakdown in the relationship between her and her mother. However, it seemed clear to me that Ms S. was making every effort to focus accurately and sincerely on the underlying facts. She calmly provided additional details and plausible explanations when asked to do so, without ever becoming argumentative, defensive, or increasingly nervous by any line of questioning. Throughout the course of her testimony, I never formed the impression that Ms S. was ever trying to do anything but recall events truthfully and candidly, to the best of her ability.

k. Finally, while the above considerations on their own would have sufficed to persuade me that Ms S. was a credible and reliable witness, my impression in that regard was reinforced by the reality, not disputed in the evidence presented at trial, that the life of Ms S. underwent a remarkable downhill trajectory after the alleged incidents of sexual assault underlying the charges in the indictment; a transformation strongly indicative of emotional distress and devastation, which in my view reinforces an inference that she experienced some form of unwanted trauma in the period from November of 2019 to January of 2020. In that regard:

i. As emphasized by our Court of Appeal in R. v. A.J.K., 2022 ONCA 487, at paragraph 37-44, consideration of the trauma experienced by a complainant in the wake of an alleged offence, including how that trauma manifested itself and how the complainant addressed it, does not involve impermissible reliance on discredited myths, stereotypes and/or presumptions about any expected course of conduct in response to a sexual assault. To the contrary, a complainant’s emotional disintegration after an alleged offence may well be relevant to whether, as a matter of common sense and human experience, the events occurred as described by the complainant. In particular, while it would be wrong to say that all sexual assault victims would experience what a complainant experienced in a particular case before the court, or that all sexual assault victims would behave as the particular complainant is shown to have behaved by the evidence presented at trial, (which would involve impermissible generalizations about victims of sexual assault), where it is undisputed that a complainant did behave in a certain way, a permissible inference to be taken from the evidence elicited at trial is that the complainant was emotionally devastated because something emotionally devastating happened to her.

ii. In this particular case, it was undisputed that, prior to November of 2019, the complainant was an extraordinarily confident, outgoing, hard-working, and talented young woman who excelled at academics and athletics; a person whose resulting outstanding achievements were rewarded with success at sports, recognition through a special award presented by her teachers and peers at her high-school graduation. She was surrounded by a positive peer group with whom she had been friends for many years. While she had engaged in modest consumption of alcohol on social occasions from time to time, in a manner similar to many prosocial adolescents, and regularly used marihuana on a recreational basis, she had never engaged in the use of more serious illicit narcotics. She was accepted into the […] program at Western University, where she was doing well during her first year of studies while still maintaining her positive peer associates, still working long hours at a fast-food restaurant to fund her post-secondary education with the aid of student loans she would have to repay, and still avoiding the use of serious illicit substances. While she and her mother sometimes struggled with her mother’s desire to exert control and discipline in relation to the complainant that the complainant found restrictive, there was no dispute that the complainant and her mother spent a good deal of time together, and generally enjoyed a positive relationship. No one, including Mr G., disputed the testimony of Ms S. that she previously was regarded by others as someone whose normal smile would light up a room.

iii. In this particular case, it nevertheless also was, in my view, essentially undisputed that, from November of 2019 onwards, the complainant’s life experienced a remarkable downturn and negative trajectory, which she is still struggling to overcome. Without limiting the generality of the foregoing, and as noted above:

1. The complainant generally became more withdrawn, distancing herself from her former positive peer group.

2. The complainant began struggling with her ongoing studies, apparently for the first time in her life; e.g., forgetting and irreparably missing an important university examination for which she had studied, and eventually dropping out of the […] program at Western University.

3. The complainant also then began engaging in negative peer associations; i.e., spending time with those involved in the drug subculture, whom she purposely avoided during her high-school years. Such associations facilitated the complainant’s unprecedented use of much more serious illicit narcotics, including CDSA controlled substances such as MDMA, “Molly” and/or “Ecstasy” as well as hallucinogenic mushrooms.

4. The complainant’s relationship with her mother also deteriorated in a rapid and sustained way; e.g., with she and her mother quickly transitioning from spending a great deal of time together to barely interacting, and with their interactions increasingly marked by overt resentment and hostility on the part of the complainant, (who admittedly came to hate her mother for bringing Mr G. into her life, thereby effectively having placed her in a situation allowing her to be sexually assaulted by Mr G.), and arguments resulting in the complainant having to leave the B.C. residence for extended periods of time, before leaving it completely – such that, by the time of trial, the relationship between the two women apparently had been utterly destroyed; i.e., to the point where they had had almost no interaction whatsoever during the previous two years.

5. Sadly, the emotional turmoil and resulting mental health challenges being experienced by Ms S. also led to an unfortunate suicide attempt in January of 2021, involving the cutting of her own wrists.

iv. Again, in my view, all such evidence supports an inference that the complainant experienced some form of unwanted trauma in the period from November of 2019 to January of 2020, in turn leading to ensuing and ongoing emotional devastation and serious mental health issues; developments plausibly explained by the sexual assaults described by Ms S.

31As far as Mr M. is concerned:

a. He struck me as a completely forthright and honest gentleman; one who was deeply saddened by the breakdown in the relationship between his friends R. and A.S., and his own relationship with the former, but had absolutely no wish to “take sides”.

b. While he seemed genuinely shocked and troubled by the unexpected disclosure made to him by Ms S. in January of 2021, and somewhat nervous about the further unexpected experience of testifying in court, (i.e., speaking rapidly, interjecting with responses before questions were finished, and apologizing profusely in response to gentle reminders in that regard), he also seemed extraordinarily intent on doing his best to provide his recollection of events as truthfully and accurately as possible. At no time did I form any impression whatsoever that he was trying to do otherwise; e.g., as he candidly acknowledged what he could and could not remember.

c. In the result, I found him to be an entirely credible witness. For the most part, I also found him to be a reliable witness, at least to the extent of what he could positively remember. Having said that, he himself acknowledged that, despite his efforts to listen intently to what Ms S. had told him when she came to him in January of 2021, and to co-operate fully with the police, he admittedly could not recall all that she had said because other stuff was “going through his head” at the time, and he was positively recalling additional details in that regard which had not made their way into the document outlining the statement he had provided by telephone to the police. On the whole, I generally was inclined to accept what Mr M. was telling me as being generally accurate, while also being somewhat disordered and incomplete.

32As for Ms T.:

a. She presented as a pleasant witness who was doing her best to be co-operative and helpful. Although it was clear that she is close to and fond of Ms S., I did not form the impression at any time during the course of her testimony that she was attempting to be anything but honest and fair, in terms of the evidence she was providing. In particular, she candidly indicated that she personally had never met Mr G. and could not remember personally having seen him do anything. She also readily acknowledged that there were numerous things she could not recall, and things which may or may not have happened that she could no longer remember. She also readily acknowledged the concussion injuries she had suffered, and her associated problems with memory.

b. In the result, I regarded Ms T. as a credible witness, but one in respect of which there were obvious reliability issues. Despite the latter, I nevertheless was inclined to accept the accuracy of the things she admittedly could remember. In particular, the fact that her best friend had called her, expressing considerable fear about perceived danger, and wanting her best friend’s support, clearly seemed to be something that understandably left a lasting and animating impression on Ms T., despite her inability to recall all the details of the occasion.

33I also obviously have spent considerable time and care considering the testimony which the accused, Mr G., chose to give at trial.

34In relation to my assessment of the credibility and reliability of Mr G.:

a. In my view, nothing in the course of the evidence I received at trial indicated that Mr G. suffered from any physical or cognitive limitations. Nor do I think that the presented evidence provides any basis for reasonably concluding that Mr G., at any point proximate to the events addressed at trial, ever consumed any intoxicating substances to a point whereby his ability to make or recall accurate observations was impaired. Without limiting the generality of the foregoing, I believe I can take a degree of judicial notice, (having regard to matters such as the extent to which use of marihuana or alcohol is regarded as creating inappropriate levels of impairment in relation to use or operation of an automobile), that taking one to three puffs from a marihuana bong or consuming two to three bottles of beer over the course of an extended evening is unlikely to result in significant impairment of a person’s ability to make accurate observations or recall witnessed events.

b. I nevertheless formed the definite impression, during the course of the two-day testimony of Mr G., that he simply was not a credible and/or reliable witness. I say that for many reasons, but they include the following:

i. Mr G. himself proactively indicated that he was “not good with dates”, and when he was asked about the timing of particular events, even in a general way, (e.g., as to whether a particular shopping excursion or Christmas holiday gathering had occurred in a certain year, or before or after certain “baseline” events such as the high school graduation of Ms S.), his responses repeatedly indicated that he was “not quite sure”. That made it very challenging to determine whether or not he was providing an accurate recollection of where particular events may have occurred within the overall underlying timeline, and whether or not Mr G. was perhaps incorporating and time-shifting memories of things he was accurately recalling from one occasion into another. I formed the definite impression that Mr G. himself was uncertain in that regard. While I readily accept that certain individuals are simply not good at remembering dates, (and Mr G. testified that he was one of them), his acknowledged lack of certainty in relation to such matters strongly suggested his lack of reliability in that regard, while also suggesting, in my view, having regard to the extent of such failings, wider concerns about his credibility and reliability.

ii. In my view, Mr G. nevertheless exhibited troubling indications with lack of memory extending beyond his professed difficulty with dates. In that regard, I fully recognize that few individuals have perfectly detailed memories, and some lapses in memory regarding certain details therefore are to be expected, particularly when witnesses are attempting to recall events at trial that occurred years before. However, it seemed to me that the professed inability of Mr G. to remember certain details was somewhat striking and unexpected, insofar as they concerned matters which inherently seem much more likely to have stood out in his experience and memory – in turn suggesting that he had a memory that was poor in relation to matters extending beyond dates, was perhaps unwilling to confirm things he actually did remember, and/or was purporting to remember things that simply had not happened or in the manner he said they happened. For example:

1. As he described it, the one and only occasion of his sexual intercourse with A.S. occurred entirely out of the blue, without his doing anything whatsoever to initiate that, and with her effectively sexually assaulting him by beginning to touch him sexually while he was asleep without any prior discussion or indications in that regard. In my view, such an incident seems likely to have stood out and loomed large and vividly in the memory of Mr G., had it occurred as he said it did. However, in the course of his testimony about the incident:

a. he professed an inability to recall whether it occurred during the week or on a weekend;

b. he initially did not and/or could not provide a date or approximate date for when the event had happened, and then progressively changed his testimony from agreeing that it occurred in November of 2019, to suggesting that it could have occurred in November or December of 2019, to suggesting that it could have occurred in November or December of 2019 or in January of 2020;

c. he amazingly could not recall any details or particulars of the conversation allegedly exchanged between himself and Ms S. when he unexpectedly woke to find his stepdaughter Ms S. on top of him and rubbing his genitals through his clothing, (apart from saying it was “likely … sexual stuff”), following which they nevertheless were said to have sat on the couch talking before kissing, and moving on to Mr G. performing oral sex and both then engaging in vaginal intercourse in various positions;

d. he could and/or did not provide any time duration estimates whatsoever, in terms of how long the described acts of oral sex and vaginal intercourse in several different positions had lasted; and

e. he was not sure whether he and/or Ms S. had said anything while actively engaged in the extended acts of vaginal intercourse he described.

2. I frankly also had difficulty believing and accepting that Mr G., even with his professed difficulty remembering dates, could not recall whether or not certain described interactions with Ms S. had occurred before or after his first described sexual encounter with her; e.g., insofar as that seems likely to have almost certainly changed the fundamental dynamic of interaction between them, thereby marking a significant turning point in their relationship.

3. In relation to the second incident of sexual interaction between himself and Ms S. as he described it -- i.e., the incident where he says Mr S. called to him while he was in the living room and asked or instructed him to digitally penetrate her vagina while she sat on the stairway connecting the ground floor and upstairs floor of the B.C. residence:

a. He himself says that was one of only two occasions when he had sexual activity with Ms S., (his girlfriend’s daughter), and that it was the second time when Ms S. proactively initiated such sexual activity without prior notice or discussion. In my view, such an incident inherently would have been as unusual and strikingly memorable as the first such incident Mr G. described.

b. I therefore found it concerning and difficult to believe that Mr G. initially could not remember with clarity, either generally or in relation to the broad sequence of events he was describing, when the alleged incident of his digitally penetrating Ms S. on the stairs of the B.C. residence, at her request, may have occurred. In my view, the general timing of such an unusual and inherently memorable occasion, if it occurred, is something that would have stayed in his memory. However, it was only during cross-examination that he specifically tied the alleged incident of sexual activity on the stairs of the residence with the date on which Ms S. apparently was angered and upset by hearing her mother and Mr G. engage in sexual activity; a date which he then conceded must have taken place immediately before Ms S. temporarily left home in February of 2020 to live elsewhere for a short period of time.

c. Moreover, he could not recall any of the specific words Ms S. supposedly had used to ask or instruct him to engage in such remarkably unusual activity, even though he himself says that he specifically asked her to repeat her request or instruction so that he was sure what she was asking or saying. In the circumstances, I think it unrealistic that he would be unable to recall details of her supposed comments in that regard, if they were indeed made.

d. My concerns in that regard were reinforced by his professed inability to recall the reason Ms S. supposedly gave for having the described incident of sexual activity, which began so unexpectedly, then come to such an unexpectedly abrupt conclusion. Again, I think such details of an occasion so highly unusual and unexpected would have stood out and remained in the memory of Mr G., had they occurred.

e. Finally, I note that, over time, Mr G. provided, (as emphasized by Crown counsel), significantly varying indications of when the second incident of sexual activity he described was said to have occurred. In that regard:

i. During the course of his police interview on February 21 of 2021, Mr G. was specifically asked about the timing of that alleged incident, via the following exchange:

Detective Patterson: “Tell me about the second time you’ve had sex with A.”.

Mr G.: “The second time?”

Detective Patterson: “Yeah. When was it?”

Mr G.: “In December.”

Detective Patterson: “December?”

Mr G.: “Yeah.”

Detective Patterson: “Of what year?”

Mr G.: “Umm”

Detective Patterson: “This past December?”

Mr G.: “Yeah.”

Detective Patterson: “So 2020?”

Mr G.: “Yeah”.

ii. In my view, there is absolutely no ambiguity or uncertainty in relation to what Detective Patterson was asking in that regard, or in the responses provided by Mr G. I was not impressed or persuaded by the attempts of Mr G. to suggest otherwise. Moreover, I think it important to emphasize that Mr G. clearly was indicating that the alleged second incident of sexual activity he was describing was said to have taken place approximately just 2-3 months prior to his police interview, thereby reducing the likelihood of his making any significant errors in that regard if the incident happened the way he said it did.

iii. However, as noted earlier, Mr G. initially testified at trial that he was unsure when the alleged second incident of sexual activity he was describing had occurred, and then specifically and definitely indicated during the course of cross-examination that it had occurred in February of 2020; i.e., on the same day as Ms S. apparently was angered and upset by hearing her mother and Mr G. engage in sexual activity, in turn leading to her leaving the residence for a time to live elsewhere – events which no one disputed happened in February of 2020.

iv. In the result, Mr G. provided general indications of the timing of the alleged second incident of sexual activity he was describing that varied by approximately 10 months. In my view, the event Mr G. was describing inherently would have been unusual, unique, and therefore quite memorable had it occurred. Even for someone who professes to be “bad with dates”, the fact that Mr G. gave such widely diverse indications as to the time of the alleged second incident of sexual activity he was describing reinforces my strong doubts that it ever occurred.

4. I found it remarkable that Mr G. generally was unable to ascribe any date, time or month to the preserved video recordings and text messages that were presented in evidence at trial, even though they contain documented efforts by Mr G. to essentially transform his girlfriend’s teenage daughter Ms S. into a prostitute; i.e., by repeatedly offering to pay her sums of money if she would agree to have sex with him in exchange. I am inclined to think that such acknowledged incidents of inherently unusual and morally reprehensible conduct would have stood out in his mind.

iii. In my view, there also were numerous internal inconsistencies in the trial testimony of Mr G. For example:

1. As noted earlier in these reasons, Mr G. repeatedly revised his indication of when his first sexual activity with Ms S. occurred. The internal inconsistencies of his testimony in that regard were not limited to the possible months when the occasion may have occurred, but also to the time of week at which it may have happened; i.e., with Mr G. indicating he was not sure whether it had happened during the week or on a weekend, while indicating elsewhere in his testimony that he normally was visiting the B.C. residence only on weekends, usually arriving on a Friday evening or Saturday morning and departing again on or before Sunday.

2. As also noted earlier in these reasons, Mr G. repeatedly revised his testimony regarding the timing of communications; e.g., initially indicating that he had no memory in that regard, before nevertheless then actively disputing suggested timing, suggesting that such communications had occurred at times other than those suggested, and/or confirming that the timing suggested by Ms S. was accurate or at least not being disputed.

3. Details he provided about the manner in which certain interactions between him and Ms S. also were not always consistent, in the way one might expect from someone having a fixed memory of certain events. For example:

a. He initially indicated that he was not sure whether or not he had told Ms S. that he had been thinking about how good she had looked since her graduation, only to indicate a short time later that he had not said that to her, only to indicate a short time after that that he did not know if he had said that to her.

b. He similarly wavered back and forth in his testimony about whether he had expressly told Ms S., prior to their first sexual activity, that it was “okay” now that she was 18, initially indicating that he was not quite sure whether he had said that, before indicating a short time later that he definitely did not say that.

c. As noted earlier, when asked during examination in chief whether he or Ms S. had said anything during their initial sexual intercourse, his answer was “No, I don’t think so”, while indicating in cross-examination that he simply did not know.

d. As noted earlier, during his examination in chief, Mr G. testified that Ms S. asked him on the occasion of their first sexual interaction whether he had a condom, and that he had told her “no”. In cross-examination, however, he was asked whether there had been any conversation about a condom at the time of his first described sexual interaction with Ms S., and he said “no”. Moreover, when also asked whether Ms S. had asked for a condom on that occasion, he also said “no”. When confronted with that fundamental and obvious inconsistency, Mr G. initially made strenuous attempts to deny making his earlier answers or suggest confusion about what he had said. It was only when confronted with the undeniable DRD recording of his own voice that he acknowledged his inconsistent answers and decided to proceed on the basis of his answers that there had been a conversation about condom usage, with Ms S. allegedly asking if he had a condom, and him allegedly saying “no” in response.

e. At one point in his testimony, he described the stairway leading to the upstairs level of the B.C. residence as curving to the left in a spiral as it reached the top; i.e., such that anyone sitting on the top stairs of that stairway, facing downwards, effectively would have been facing an interior wall of the residence. However, when describing the alleged incident of Ms S. supposedly sitting on the second stair from the top of that stairway, while asking Mr G. to digitally penetrate her, Mr G. claimed that she was facing the living room where he was sitting.

4. Mr G. also was not always consistent with his indication of the nature or manner of the communications he claimed to have exchanged with Ms S.; something which also might be expected of someone having a clear recollection of what those communications may have been. For instance, as noted earlier, in relation to his acknowledged text messages sent in January of 2021, he indicated at one point that all relevant communications in that regard were sent via text without being supplemented by telephone conversation, before indicating a short time later that there had also been a telephone call.

5. In terms of the testimony of Mr G. having internal inconsistencies, perhaps the most striking example was his occasional refusal to accept, during cross-examination, that he had said certain things in his previous testimony, or even a short time earlier, (e.g., in relation to the conversation he did or did not have with Ms S. about use of a condom during their first sexual encounter), when my memory, notes, DRD recording and ordered transcript all confirmed that he had. As noted by Crown counsel, the same behaviour was demonstrated during the course of his police interview; e.g., when he expressly indicated to Detective Patterson that he recognized his voice on a played video recording, only to deny having acknowledged that, almost immediately thereafter. In my view, such instances are notable hallmarks of a witness demonstrably disinclined to tell the truth, even when figuratively “cornered” by his previous answers.

iv. In my view, there also clearly were numerous inconsistencies in the account or accounts of events Mr G. has provided in relation to this matter over time. In that regard:

1. Mr G. admittedly lied deliberately and repeatedly to the police during the course of his police interview. For example, he initially told Detective Patterson, during the course of that interview:

a. that he had never had sex with Ms S.;

b. that Ms S. was lying when she said he had performed oral sex upon her and inserted his penis in her vagina;

c. that he had never asked Ms S. for sex;

d. that it was not him nor his voice depicted and/or recorded in the preserved video clips that were played for him during the police interview, prior to the same video clips being entered as exhibits at trial; and

e. that he did not recognize the female voice in the video clips as being that of Ms S.

2. Again, all of those indications to Detective Patterson were admitted lies, and directly at odds with the testimony Mr G. provided at trial, as well as the preserved text messages and video recordings that were entered into evidence, and the admissions made by Mr G. in that regard.

3. In the course of cross-examination, Mr G. provided a number of successive alternative explanations for telling such admitted lies. For example:

a. Mr G. attributed such lying to his being “nervous”, “having a bad day” and “stuff like that” at the time of his police interview. He says he was “stressed” and “frustrated”, and that his head was “in a different place of mind”, with his thoughts being “a little mixed up”, and “all over the place”, such that he “didn’t focus”.

b. Mr G. claimed to have been confused during the initial portions of his police interview, as no one had told him of the nature of the charges against him, and/or made it clear that he was being charged with two counts of sexual assault, in respect of which the complainant was A.S.

c. Mr G. also said that, at the time of his admitted lies to Detective Patterson during the course of his police interview, he simply did not understand the importance of telling the truth to the police and did not know that he had no obligation to speak to the police.

d. Furthermore, Mr G. suggested that he refrained from telling R.S. about his engaging in sexual activity with her daughter A., and admittedly lied to the police in that regard, because of his professed desire to respect a request supposedly made to him made by A.S. that he not tell anyone about that sexual activity. He says that, when he realized it was Ms S. making the allegations against him, (i.e., including the indications that he and Ms S. had engaged in sexual activity), he realized that he did “not have to lie no more”, and that his telling further lies was “just going to put [him] deeper”, such that he then started to tell Detective Patterson the truth.

4. I neither believe nor accept those various explanations for the acknowledged deliberate and repeated lies Mr G. told to Detective Patterson during the course of his police interview. Without limiting the generality of the foregoing:

a. In my view, the comments made by Mr G. during the course of his police interview do not suggest an unfocused mind. To the contrary, the answers being provided by Mr G. were responsive to the questions being asked, were not haphazard or disjointed, and actually displayed sustained adherence to a consistently emphasized position; i.e., that he had not had sex with Ms S., and that she was lying in that regard. Despite his assertions to the contrary, the mind of Mr G. seemed focused at the time but focused on telling lies.

b. In relation to his suggestion of being confused and/or lacking information about the nature of the charges against him:

i. Mr G. initially indicated during the course of cross-examination that he did not remember the arresting officer from the London Police Service, (i.e., the officer who arrested him at the time he was transferred into the custody of the London Police in the area of Homer Watson Boulevard and Highway 401 in Kitchener, Ontario), indicating that he was being arrested on two charges of sexual assault.

ii. When it was emphasized to Mr G. in cross-examination that the event of his formal arrest would have been extraordinarily unusual and memorable, Mr G. revised his testimony to say he thought the arresting officer from the London Police Service had only referred to “two assault charges”, without any reference to the alleged assaults being sexual in nature. For that reason, Mr G. added, he thought the charges related to his alleged assaulting of a male.

iii. During the course of further cross-examination, Mr G. acknowledged the possibility that the arresting officer from the London Police Service actually may referred to “sexual assaults” but suggested that he personally had not heard the reference to the two alleged assaults being sexual in nature.

iv. In any event, Mr G. remained adamant, during the course of his initial cross-examination, that he had no information or knowledge prior to his police interview with Detective Patterson that he had been charged with sexual assault, and that he learned of that only part way through that police interview.

v. However, Mr G. was then confronted with other portions of his police interview, during which he repeatedly made reference, in the course of speaking with Detective Patterson, to other individuals he referred to as “they”, (but almost certainly other police officers), having told him that he had “a warrant out for sexual assault”, and asking: “Why’d you go for sexual assault?”

vi. While I generally was not impressed with the constantly changing indications from Mr G. as to whether and to what extent he was informed of the charges against him, prior to his police interview, (as that alone made me inclined to suspect Mr G. was not telling me the truth in that regard), the statements he himself made to Detective Patterson about that during the course of his police interview satisfied me that Mr G. was deliberately lying to me about his knowledge in that regard. My conclusion in that regard was buttressed by the additional claims made by Mr G. that he thought the complainant was R.S.; claims which self-evidently contradicted his conflicting assertions of a supposed belief, prior to speaking with Detective Patterson, that he had been arrested for assaulting a male.

vii. Nor was I impressed or persuaded by his additional alternative “fall back” explanation, whereby he claimed not to appreciate that there was any distinction whatsoever between “assault” and “sexual assault”, as he supposedly thought they were the same thing.

c. In the course of cross-examination, Mr G. also acknowledged that, prior to engaging in the police interview, the police advised him of his legal rights, including his right to counsel, and that he availed himself of that right to counsel by speaking with a lawyer before he spoke with Detective Patterson. In the circumstances, I find it extraordinarily difficult to believe that Mr G. was not aware of his right to silence at the time of his police interview.

d. As for the suggestion that Mr G. refrained from telling R.S. and the police about engaging in sexual activity with A.S. because of his professed desire to respect a request supposedly made to him made by A.S. that he not tell anyone about that sexual activity:

i. In my view, the suggestion ignores the reality that it was very much in Mr G.’ own self-interest not to disclose that sexual activity directly or indirectly to R.S., who might very well have ended their relationship and her corresponding sponsorship of his efforts to remain in Canada. Indeed, as Mr G. acknowledged in cross-examination, R.S. learning of his sexual activity with her daughter would have “completely exploded” his relationship with her.

ii. It similarly and obviously was very much in Mr G.’ own self-interest to avoid admitting such conduct to the police.

iii. As Mr G. himself expressly acknowledged and emphasized in Exhibit 4, (video clip 2), his desire to engage in sexual activity with Ms S. was motivated in large measure by his desire to engage in additional sexual activity outside his relationship with R.S. in a manner whereby his own morally questionable conduct in that regard would remain secret from R.S. In other words, he selfishly was interested in preserving his own secrets, and not those of Ms S.

iv. As Mr G. indicated repeatedly during the course of cross-examination, his lies to the police were motivated in large measure by his own feelings of being ashamed, (i.e., because he knew that he had had sex with his stepdaughter), without any simultaneous indication of concern for any shame that might be experienced by Ms S.

v. More generally, I do not accept that Mr G. generally was inclined to subordinate his own self-interest to the welfare of A.S., as his professed desire to maintain a secret for her sake otherwise might suggest. In my view, even his acknowledged conduct makes it clear that he gave little or no thought to the potentially devastating impact that engaging in sexual activity with his girlfriend’s vulnerable teenage daughter might have on A.S., in terms of the latter’s relationship with her mother, her perceived stepfather, and general emotional well-being. As he himself acknowledged during the course of cross-examination, he had a responsibility as the stepfather of Ms S. to make sure that the right thing happened even in the situations he was describing, (i.e., of Ms S. supposedly taking steps to initiate sexual activity with him), and fulfilling that responsibility obviously was subordinated to his own desire to engage in such sexual activity.

vi. Finally, on this point, I think it extremely telling that, during the course of cross-examination, Mr G. himself expressly indicated that he decided to stop lying to the police after he realized that he was “already in a hole”, and that telling lies was not going to help him; i.e., as opposed to helping Ms S.

5. In my view, there nevertheless also have been significant variations in the account provided by Mr G. over time, even after his professed decision to start telling the truth in relation to this matter. Most notably in that regard, apart from the other inconsistencies identified herein:

a. During the course of his police interview, Mr G. was asked, (following his admission of sexual activity with Ms S.), to provide Detective Patterson with an account of what happened in that regard.

b. In the course of doing so, the description Mr G. provided of his first sexual encounter with Ms S. included indications that Ms S. had “just come to lie down on top of him”, and that he did not remember the position in which they may have had sex, before saying that he was “lying down” as Ms S. “sat on it”; i.e., his penis. He also made no mention whatsoever of any oral sex.

c. In my view, and as outlined in considerable detail above, Mr G. provided a significantly different account at trial, suggesting that he now had a very detailed memory of the positions in which he and Ms S. engaged in sex on that occasion, despite his professed earlier lack of memory. In particular, beyond the acts of rubbing and kissing he described:

i. He mentioned, and described in detail, oral sex he was said to have performed on Ms S., which he had not mentioned to the police.

ii. He described a position of he and Ms S. engaging in vaginal intercourse as she sat on top of him while he was sitting on the couch and not lying down on it, as he had indicated to the police.

iii. He described a position of he and Ms S. engaging in vaginal intercourse as she was bent over and onto the couch and he was penetrating her from behind; a position that was not mentioned at all during the course of his police interview.

d. Even if one accepts the explanation of Mr G. that he referred to his “lying down” during his police interview as an intended reference to his “lying back” while in a seated position on the couch, that still does not explain why Mr G. now professes to have a detailed memory of the sexual positions he and Ms S. engaged in during their first sexual encounter described at trial, that he professed not to have at the time of his police interview, and why those details were significantly more expansive at trial than what he recalled earlier. While Mr G. attributed all such deviations to his feeling nervous and frustrated at the time of his police interview, I did not find the explanation convincing. According to Mr G., this was his one and only instance of engaging in oral sex and vaginal intercourse with Ms S., and I think its unusual, unprecedented, and unique character inherently would have made it vividly memorable to Mr G., had it happened in the way he described at trial. The fact that he could not provide a similar account at the time of his police interview inclines me to believe that the account he provided at trial, in that regard, simply did not happen as he said it did.

v. In my view, the testimony Mr G. provided at trial also was at odds with the preserved video recordings that were presented at trial. In that regard:

1. I found it troubling that Mr G. would not accept that the recordings were made on the same day, given that they clearly show, in my view, a successive series of vignettes that occurred on the day in question. Without limiting the generality of the foregoing, in my view:

a. the backgrounds and camera angles of the first five videos obviously carry over from one video to another;

b. the progressively brighter depiction of events from video to video is entirely consistent with the account Ms S. provided of the events taking place early one morning, starting in darkness before the sun was progressively rising, and her bedroom blinds eventually were opened;

c. having regard to provided and unquestioned diagrams of the house, and the testimony I received describing its lay out, there is a logical “geographic” progression from Ms S. lying in the bed of her bedroom, to her getting up to open the window beside that bed, to her getting up to leave her bedroom and reach the top of the stairwell that would take her down from the upstairs bedroom area to the kitchen and other ground floor areas below, had Mr G. now been blocking her way at the bottom of that staircase; and

d. there is a sustained topical thread of conversation that wends its way through all the video segments, of Mr G. attempting to engage in sexual activity with Ms S., being rebuffed by her in that regard, and then engaging in progressive forms of attempted persuasion – including monetary bribes – in an effort to change her mind.

2. I do not accept the testimony of Mr G. that he stayed at the door to the bedroom of Ms S., and did not enter that bedroom, when the videos were being recorded. In my view, the audio of those recordings makes it clear that Mr G. was speaking closely to Ms S., as she was lying on her bed, to the point where the phone’s microphone clearly picked up not only all aspects of his voice, (including more whispered comments), but also the rustling of money from his wallet. Moreover, the suggestion of Mr G. remaining steadfastly at the door to the bedroom without entering is belied by his comments in Exhibit 7, saying “Stop from moving up” and “This feels so nice”. Clearly, Mr G. was in the bedroom trying to dissuade Ms S. from getting up from the bed and engaged in some form of physical activity that “felt nice” to him, which on any sensible view hardly describes the sensation of merely standing in a doorway. I cannot escape the inference that Mr G. was deliberately lying to me about not entering the bedroom of Ms S. because he knew a demonstrated willingness to enter her bedroom at such an hour was consistent with the events she described in relation to the second alleged sexual assault.

3. As emphasized by Crown counsel during the course of cross-examination, Mr G.’s firm denial of the suggestion that he had access to condoms during 2019 and 2020, and had them, also was at odds with his recorded indication to Ms S., in Exhibit 5, (video clip 3), that she would not get pregnant if they had sex on that occasion because they would use a condom – and the overall context of the video recordings certainly suggests to me that Mr G. was pressing Ms S. to engage in immediate sexual activity. Mr G. initially attempted to explain that apparent inconsistency by suggesting that he had neglected to say that he had purchased a supply of condoms after his first sexual encounter with Ms S. essentially at her request, as she supposedly had said to him at the time that she would not have sex with him again without use of a condom – although he made no mention of that during his testimony in chief. A short time later, however, he contradicted that explanation by denying that he kept condoms with him after that first sexual encounter, claiming that he instead was simply indicating on the video that he was willing to go to a convenience store and buy one. I did not find those belated and inconsistent explanations persuasive.

vi. In my view, many of the assertions made by Mr G. during the course of his trial testimony also were simply implausible. For example, and without limiting the generality of the foregoing:

1. In my view, his express claim that his relationship with A.S. remained limited to the exchange of perfunctory “hi” and “goodbye” comments from the time of their meeting in elementary school until her high school graduation, (i.e., a period of more than four years), despite the numerous and regular interactions between them over the course of many years which Mr G. himself acknowledged, is completely unbelievable. He himself testified that he saw Ms S. as much as he saw her mother, that they lived constantly at the same residence for at least one month and thereafter routinely and regularly stayed in the same residence during the overnight and weekend visits he made there over the next several years, that he attended her sporting events, that he spent time socializing with her and buying her alcoholic drinks at a wedding, that he taught her to drive, that he routinely gave her money to help with school and other purchases, that he attended her high school graduation, and that he would buy her Christmas presents. He also acknowledged speaking with Ms S. on several occasions, asking her about her moods and difficulties she was having in her relationship with her mother. Given such acknowledged realities, I think the suggestion by Mr G. of his conversation and interaction with Ms S. remaining limited to the exchange of curt salutations over the course of more than four years was entirely unrealistic and obviously false, that Mr G. must have known it was false, and that Mr G. nevertheless said that to me for the purpose of creating the false impression that he and Ms S. had a relationship that was quite distant, and nothing like the relationship between daughter and father or stepfather that she described. I also see no reason for Mr G. to provide knowingly false testimony to me in that regard, apart from a deliberate attempt to downplay the position of trust he effectively had assumed vis-à-vis Ms S., and/or to suggest that sexual activity between himself and his girlfriend’s daughter was perhaps less morally reprehensible and/or surprising than it otherwise might seem.

2. For reasons outlined earlier, I also do not believe or accept the assertion of Mr G. that minimal puffing of marihuana – and perhaps just one puff – was sufficient to make him “high”, or that a few alleged puffs on the marihuana bong of Ms S. were sufficient to render him “high” at the time of his first acknowledged sexual activity with Ms S. I could not help but form an impression that Mr G. made such assertions to suggest a level of impairment making his readiness to engage in unprecedented and completely unexpected sexual activity with his girlfriend’s daughter somehow more understandable and acceptable.

3. I think it inherently implausible that, in relation to the first occasion of sexual activity between her and Mr G., Ms S. would have initiated such activity in the manner described by Mr G. In that regard:

a. As Mr G. acknowledged, Ms S. was an extraordinarily intelligent young woman, and it was not disputed that she was working extraordinarily hard to earn money and pursue post-secondary education while nevertheless still being entirely dependent on her mother for housing and support. I have no doubt whatsoever that Ms S. would have been keenly aware that doing anything to seriously displease her mother might very well seriously jeopardize the ability of Ms S. to enjoy the continued support of her mother and continue living in her mother’s residence, in turn seriously jeopardizing her academic future and future life prospects.

b. In that regard, Mr G. acknowledged in cross-examination, (despite his earlier testimony suggesting that concerns expressed by Ms S. about her mother’s discovery of her lighter had occurred on a later date), that Ms S. was nervous and frightened when he arrived at the residence on the day in question, because she was worried and/or terrified about the potential fallout from her mother being angered simply by her possible discovery of Ms S. having been smoking. The suggestion of her being willing to engage in a far more egregious breach of her mother’s trust that day seems inherently preposterous to me.

c. As Mr G. himself also acknowledged, everything up until that point in their relationship had been conducted on the basis of their enjoying, and acting entirely consistent with, an innocent stepdad and stepdaughter relationship. There had never been any sexual undertones in the relationship; e.g., with neither having indicated a physical attraction to the other, and neither having ever acted in a sexual way towards the other.

d. As Mr G. himself also acknowledged, in his account of events, absolutely nothing of a sexual nature had been discussed before his described relocation to the living room, where he says he fell asleep trying to watch television. Indeed, the last conversation he had with Ms S., before doing so, referred to her contemplating washing of dishes and taking steps to clean up indications of her marihuana use before the anticipated return of her mother.

e. In such circumstances, I find it extraordinarily difficult, if not impossible, to believe that this intelligent young woman, keenly aware of her vulnerable situation and the associated risks, unilaterally, and without any advance discussion whatsoever, would have crossed such a hugely significant boundary by touching Mr G. sexually while he was sleeping, (effectively committing a sexual assault on Mr G.), without having any idea whatsoever what his reaction would be. In particular, she would have had no idea whether or not Mr G. would react in shock and horror, (i.e., on waking to the totally unexpected experience of his stepdaughter rubbing his penis through his clothing), and immediately report her conduct to her mother, with all the dire consequences that probably would ensue from such a disclosure.

f. Moreover, I think it equally implausible that, having crossed that moral and ethical Rubicon, Ms S. suddenly would have ended her first sexual activity with Mr G. for the mundane reason he gave at trial; i.e., that she had lost track of the time and suddenly remembered that she had something else she needed to do.

4. I similarly found it extremely difficult to believe the contention of Mr G., advanced during the course of his cross-examination, that the three puffs from a marihuana bong he described taking, prior to his first sexual encounter with Ms S., were sufficient to make him “become a different human being”, such that he gave no thought whatsoever to his relationship with R.S., the likelihood of her heart being broken by his having sexual activity with her daughter, or the possibility that having sexual activity with Ms S., (a girl he had regarded and treated as his biological daughter since her 13th birthday), effectively could destroy her future. I do not accept his self-serving contention that his sexual activity with Ms S., which he conceded to be morally and ethically wrong, would not have occurred had he not consumed those few puffs of marihuana. Such a contention is belied by his admittedly engaging in further sexual activity with Ms S. and pressuring her to engage in such further sexual activity, at other times when he had not consumed any marihuana or alcohol.

5. I also found the aspects of his testimony relating to use of a condom during the first occasion of sexual activity he described to be quite implausible, when considered against the simultaneous backdrop of prevailing circumstances, as well as the contemporaneous discussion and knowledge in that regard which he described in his account of events. In particular:

a. At the time of the sexual interaction Mr G. described, he remained in Canada only by virtue of his ongoing relationship with R.S. and her sponsorship of his immigration application. Mr G. accordingly had a great deal to lose, (i.e., forced departure from his Canadian home of the previous four to five years and employment here, and a forced return to his native Jamaica), if R.S. was confronted with undeniable evidence of Mr G. having engaged in sexual intercourse with her daughter, understandably became angered by that, and ended her relationship with Mr G. Indeed, Mr G. acknowledged during cross-examination that it would have been devastating to him, in his life, for Ms S. to have become pregnant with his child.

b. At the same time, Ms S. inherently was in a vulnerable position, insofar as she was a young teenager without the resources to live on her own, and completely dependent on her sustained ability to continue living in her mother’s home. Ms S. accordingly also had a great deal to lose, (i.e., possible if not probable severance of the relationship with her mother and forced departure from her mother’s home, with the even greater vulnerability that would entail), if her mother was confronted with undeniable evidence, via an unwanted pregnancy, of her daughter having engaged in sexual intercourse with her mother’s boyfriend, Mr G.

c. In short, the implications of an unwanted pregnancy arising from Mr G. having unprotected sexual intercourse with Ms S. were dire for both of them.

d. In my view, if conversation about use of a condom on the occasion in question proceeded in the manner described and eventually confirmed by Mr G., he effectively received an express indication from Ms S. that use of a condom was desired and advisable in the circumstances, while there was no discussion or other indication that Ms S. was using any other form of birth control, and Mr G. had no knowledge whatsoever in that regard. While I appreciate that Ms S. arguably could have requested use of a condom as protection from disease transmission, (i.e., as opposed to its additional birth control purpose), I think it unlikely, against the backdrop of prevailing circumstances and the extraordinarily high stakes involved in the event of an unwanted pregnancy and/or sexually transmitted disease she might very well have to explain to her mother, that Ms S. readily would have proceeded to engage in repeated acts of unprotected vaginal intercourse, (according to the account provided by Mr G.), having requested use of a condom and having been told that one was not available; i.e., instead of insisting that she and Mr G. engage in sexual activity not involving vaginal intercourse. I think it even more unlikely that Mr G., against the backdrop of prevailing circumstances and the arguably higher potential stakes involved from his perspective, (i.e., in the event of an unwanted pregnancy of Ms S. which he thereafter inherently would have no ability to control, with its attendant risk of disclosure to R.S. and his deportation from Canada), readily would have proceeded to engage in repeated acts of unprotected vaginal intercourse, (according to his account), once Ms S. effectively had alerted him to the potential risks in that regard by requesting use of a condom that was not available.

6. The account Mr G. provided of supposedly being called upon by Ms S. to digitally penetrate her on the stairs of the B.C. residence also seemed entirely unrealistic and unbelievable to me. In that regard:

a. Mr G. himself agreed in cross-examination that the incident he was describing was entirely unexpected and “completely out of the blue”.

b. Moreover, according to Mr G., at that point in the chronology, Ms S. already proactively had approached him on the couch in the living room to initiate sexual activity while her mother was away and she and Mr G. were alone in the house; i.e., on the earlier occasion of sexual activity he described. If so, in my view it makes no logical sense whatsoever that Ms S., if indeed wanting to initiate sexual activity with Mr G. once again when presented with a similar opportunity, would refrain from either joining him on the couch in the living room, (as she supposedly had before), or from inviting him into her bedroom, (the entrance to which was located only a few feet from where she supposedly was sitting at the top of the stairs), to insist that Mr G. engage in sexual activity in the awkward location and position he described in his testimony.

c. In my view, such an account frankly seemed more consistent with Mr G. attempting to provide some form of exculpatory account of interaction between himself and Ms S. on the residence stairway to counter the inculpatory account she provided in her police statement and testimony, (i.e., of him actively trying to touch her on the stairway to prevent her from going upstairs, while trying to persuade her to engage in further sexual activity), while simultaneously maintaining his denial of any sexual activity occurring in the bedroom of Ms S., which might lend support to her second sexual assault allegation.

d. For the sake of completeness, I note that I also once again find it unlikely that Ms S., on the second of the two occasions when she is said to have made a proactive decision to engage in sexual activity with Mr G., (with all of its implications and risks), once again would have terminated the encounter for the stated mundane reason Mr G. described; i.e., because she suddenly remembered that she had something else to do.

7. I neither believe nor accept the stated belief and professed fears of Mr G. that Ms S. was indicating an intention to “ruin his life” by poisoning, killing or otherwise getting rid of him. Nothing in the presented evidence indicates or even remotely suggests that Ms S. was inclined towards or capable of such murderous conduct, and in my view Mr G. knew or should have known full well that the ability of Ms S. to “ruin his life”, (as opposed to taking his life), lay in the possibility of Ms S. revealing to his partner and immigration sponsor R.S. that Mr G. had engaged in sexual activity with her daughter.

vii. As noted repeatedly above, the demeanor of someone in the witness box cannot be the most important consideration in assessing credibility and reliability of a witness, for a multitude of reasons. However, as also noted above, demeanor also is not irrelevant. In the case of Mr G.:

1. In my view, there was a quite noticeable and marked shift in his behaviour and response to questioning when his testimony transitioned from his examination in chief to cross-examination. Without limiting the generality of the foregoing:

a. He became visibly more anxious, frequently moving about slightly in the witness box.

b. More importantly, he became much more guarded and defensive; e.g., unwilling to confirm specific things he had said earlier in his testimony, (e.g., regarding the timing of his first sexual encounter with Ms S.), to the point of his even disagreeing that he had said things he clearly had said just a short time earlier. My overall impression was that Mr G. became increasingly wary of being tied down to any particular version of events, for fear that it might result in a demonstrable contradiction.

2. In the result, I frankly became increasingly doubtful that Mr G. was a witness committed to providing entirely candid, accurate and fair testimony.

35With all of the above matters in mind, I turn, finally, to a consideration of the sexual assault charges against Mr G.

CONSIDERATION OF PARTICULAR CHARGES AGAINST THE ACCUSED

36The specifics of those charges, as set forth in the indictment, already have been noted earlier, along with the essential elements of a sexual assault offence Crown Counsel must prove beyond a reasonable doubt to secure a conviction.

37I will address each of the two counts in turn.

38As indicated in the indictment, (and as noted above), the charge of sexual assault set forth in Count 1 of the indictment addresses the alleged sexual assault which Ms S. says occurred in November of 2019, in the kitchen and living room of the [B.C.] residence located […] here in the city of London. In that regard:

a. In relation to the first essential element of that charged offence, which requires the Crown to prove beyond a reasonable doubt that C.G. intentionally applied force to A.S. on the occasion in question:

i. Having regard to the credibility and reliability considerations outlined above, I do not believe or accept the account Mr G. provided of that incident, in relation to the applications of force he made in relation to Ms S. on the occasion in question, except to the extent he acknowledged having engaged in oral sex and vaginal intercourse with Ms S. Nor did his testimony give rise to what I considered to be a reasonable doubt in my mind as to whether additional alleged applications of force by him to Ms S. on the occasion in question had been established.

ii. Having regard to the credibility and reliability considerations outlined above, the evidence I do accept and believe, (and the testimony of Ms S. in particular in that regard), satisfies me beyond what I consider to be a reasonable doubt that, on the occasion in question, in November of 2019, Mr G. applied force to Ms S. in the following ways, in a manner that was clearly not accidental but intentional:

1. after walking up behind and towards her in the kitchen of the B.C. residence, Mr G. deliberately turned Ms S. around to face him;

2. Mr G. then planted his lips on her lips to kiss her on the mouth;

3. Mr G. repeatedly tried to grab Ms S. by the wrist and/or arms and eventually succeeded in doing so, in a manner he then used to walk her from the kitchen into the living room towards the longer couch there, onto which he directed her to lay down;

4. Mr G. then climbed on top of Ms S. for the first time, after which he began kissing her again, on her lips, cheeks and neck, while also intermittently placing a hand on her chin to hold her head in place and prevent her from turning her head from side to side to avoid his kissing of her;

5. after briefly getting up from on top of Ms S. to remove his pants and allow Ms S. to comply with his direction to remove hers, Mr G. once again resumed his kissing of Ms S., proceeding lower down her torso to her vaginal area, before removing her underwear, spreading her legs, and engaging in oral sex upon her, applying his tongue to her vagina for approximately one to two minutes;

6. after pausing briefly again to retrieve a condom and put that condom on his erect penis, Mr G. once again climbed on top of Ms S., after which he resumed his kissing of Ms S. on her lips, face, and neck before penetrating her vagina with his penis and engaging in vaginal intercourse with her for approximately 10 minutes until he ejaculated inside her vagina while still wearing the aforesaid condom.

iii. In my view, the Crown accordingly has established the first essential element of sexual assault in relation to Count 1 of the indictment, in the ways I have identified.

b. In relation to the second essential element of the sexual assault offence charged in Count 1 of the indictment, which requires the Crown to prove beyond a reasonable doubt that A.S. did not consent to the force that C.G. intentionally applied to her on the occasion in question:

i. Having regard to the credibility and reliability considerations outlined above, I do not believe or accept the express and/or implicit suggestions made by Mr G. during the course of his testimony that Ms S. subjectively consented to his applications of force to her on the occasion in question by word and/or gesture; e.g., by her alleged rubbing of his penis on the outside of his clothing, by her proactively removing items of her clothing, by the rubbing of his head while he engaged in oral sex in relation to Ms S., and/or by her readily repositioning herself to engage in vaginal intercourse with Mr G. in various positions, including positions where she was required to be the more active participant by moving up and down or back and forth. Again, I do not believe or accept the testimony of Mr G. that such things happened, so as to indicate directly or indirectly that Ms S. was subjectively consenting to his intentional applications of force on the occasion in question. Nor did any of the testimony provided by Mr G. in that regard raise what I considered to be a reasonable doubt as to whether such things did happen, so as to indicate directly or indirectly that Ms S. was subjectively consenting to his intentional applications of force on the occasion in question.

ii. Having regard to the credibility and reliability considerations outlined above, the evidence at trial which I do accept, and the testimony of Ms S. in particular, established to my satisfaction, beyond a reasonable doubt, that she did not want or welcome any of the touching of her by Mr G. that occurred on that occasion to happen, and that she did not subjectively consent to such intentional applications of force.

iii. In my view, the Crown accordingly has established, beyond a reasonable doubt, this second essential element of the sexual assault offence charged in Count 1 of the indictment; i.e., that Ms S. did not consent to the intentional applications of force applied to her by Mr G. on the occasion in question. Moreover, the Crown has done so without having to resort to possible application of subsections 265(3)(d) and 273.1(2) of the Criminal Code, upon which the Crown relied in the alternative, and which I nevertheless will address later in these reasons by way of what essentially will be obiter comments, lest there be any doubt of what my findings in that regard would have been.

c. In relation to the third essential element of the sexual assault offence charged in Count 1 of the indictment, which requires the Crown to prove beyond a reasonable doubt that C.G. knew that A.S. did not consent to the force that C.G. intentionally applied to her on the occasion in question:

i. Having regard to the credibility and reliability considerations outlined above, I neither believe nor accept the testimony of Mr G. implicitly if not explicitly indicating or suggesting that he believed Ms S. was subjectively consenting to his intentional applications of force on the occasion in question, and/or that he believed she was subjectively consenting in that regard. Nor does his testimony give rise to what I consider to be any reasonable doubt in that regard.

ii. Having regard to the evidence at trial I do accept in relation to this issue, (and in particular the testimony of Ms S. in that regard, which I accept and believe having regard to the credibility and reliability considerations outlined earlier), I am satisfied beyond a reasonable doubt that Mr G. had actual knowledge that Ms S. was not subjectively consenting to his intentional applications of force on the occasion in question, and/or should be considered to have had such knowledge based on his recklessness and/or wilful blindness in that regard. Without limiting the generality of the foregoing:

1. When Mr G. initially turned Ms S. around and kissed her in the kitchen of the B.C. residence, he did so in circumstances that were completely unprecedented, (i.e., in terms of his having ever engaged in any prior kissing of her on the lips), without any conversation or request whatsoever in that regard, and after Ms S. effectively had signalled her desire to place distance between herself and Mr G. by deliberately getting up from the kitchen table and walking away from him after his inappropriate and unwelcome remarks that he had been thinking of her since seeing her in her graduation dress and indicating implicitly if not expressly that it would be appropriate for them to engage in sexual intercourse now that she was 18. Again, the law does not permit someone to act in such a unilateral fashion for the purpose of “testing the waters” to see if a complainant is willing to engage in such physical interactions.

2. Ms S. clearly and repeatedly indicated to Mr G. by her words and conduct that his actual and suggested physical conduct towards her on the occasion in question was unwelcome; e.g., repeatedly saying words including “No” and “stop”, making obvious and repeated efforts to push his hands away while attempting to evade his efforts to grab her arms and wrist, and physically backing away from him until she was cornered in that particular area of the kitchen with no additional space to retreat further.

3. After Ms S. had clearly and expressly indicated that she wanted Mr G. to stop what he was doing on the occasion in question, Mr G. made no further efforts to obtain any express indication of consent from Ms S. to what he was doing, in a manner that, in my view, made it clear that he neither cared about her possible answers in that regard nor wanted to hear them.

4. Ms S. was obviously moving her head from side to side to avoid his further attempts to kiss her.

iii. In the circumstances, I think it clear beyond a reasonable doubt that Mr G. had actual knowledge, and/or knowledge based on recklessness and/or wilful blindness, that Ms S. was not consenting to his intentional applications of force on the occasion in question. The Crown accordingly has established this essential element of the charge of sexual assault alleged in Count 1 of the indictment.

d. In relation to the fourth essential element of the sexual assault offence charged in Count 1 of the indictment, which requires the Crown to prove beyond a reasonable doubt that the force C.G. intentionally applied on the occasion in question took place in circumstances of a sexual nature:

i. As noted above, the intentional applications of force directed by Mr G. to Ms S. on the occasion in question included his repeatedly kissing her in various ways, (e.g., on the lips, cheeks, face, neck, and torso), engaging in oral sex by applying his tongue to her vagina, and engaging in vaginal intercourse by penetrating her vagina with his erect penis.

ii. In my view, the very nature of those intentional applications of force inherently makes it clear beyond a reasonable doubt that any reasonable person, observing such conduct, would think it readily apparent that those various acts of touching were taking place in circumstances of a sexual nature.

iii. In my view, the Crown accordingly has established, beyond a reasonable doubt, the fourth and final essential element of the sexual assault offence charged in Count 1 of the indictment.

e. All four essential elements of the sexual assault offence charged in Count 1 of the indictment having been proved beyond a reasonable doubt, there will be a finding of guilt in relation to Count 1.

39As indicated in the indictment, (and as noted above), the charge of sexual assault set forth in Count 2 of the indictment addresses the alleged sexual assault which Ms S. says occurred in January of 2019, in her bedroom of the [B.C.] residence located […] here in the city of London. In that regard:

a. In relation to the first essential element of that charged offence, which requires the Crown to prove beyond a reasonable doubt that C.G. intentionally applied force to A.S. on the occasion in question:

i. Having regard to the credibility and reliability considerations outlined above, I do not believe or accept the account Mr G. provided of his second alleged sexual interaction with Ms S., during which he was said to have engaged in digital penetration of her vagina while she sat on the stairway leading from the ground floor of the B.C. residence to its upstairs area. I simply do not believe or accept that such an incident of sexual activity between Mr G. and Ms S. occurred. Nor did the testimony of Mr G. in that regard, alleging such an incident, give rise to what I consider a reasonable doubt in my mind as to whether it did occur.

ii. Having regard to the credibility and reliability considerations outlined above, the evidence I do accept and believe, (and the testimony of Ms S. in particular), satisfies me beyond what I consider to be a reasonable doubt that the second occasion of sexual activity between her and Mr G. occurred in the early morning hours of a Saturday in January of 2020, in her bedroom, in the manner she described. Without limiting the generality of the foregoing, I am satisfied beyond a reasonable doubt that, on the occasion in question, Mr G. applied force to Ms S. in the following ways, in a manner that was clearly not accidental but intentional:

1. after entering her bedroom and bed, Mr G. embraced Ms S. by placing his arms around her, while also trying to put his left hand between her legs;

2. Mr G. then proceeded to kiss Ms S. on the lips and neck, and on her torso above her clothing, while using his hands to caress the inside of her legs and the area between them;

3. Mr G. thereafter pulled down and took off the shorts Ms S. had been wearing, before then using his erect penis to penetrate the vagina of Ms S. without use of a condom, engaging in vaginal intercourse with her for approximately five to 10 minutes, during which he used his hands to rub and move/bend her legs to facilitate his penetration, while he once again kissed her on the lips and neck while using a hand to grab her chin and hold her head in place, (to prevent her from moving it from side to side in efforts to avoid his kissing), and at one point used a hand to fully grasp her neck with moderate force in a chokehold, (albeit only with moderate force that did not prevent Ms S. from breathing), while thrusting his penis into her vagina even harder.

iii. In my view, the Crown accordingly has established the first essential element of sexual assault in relation to Count 2 of the indictment, in the ways I have identified.

b. In relation to the second essential element of the sexual assault offence charged in Count 2 of the indictment, which requires the Crown to prove beyond a reasonable doubt that A.S. did not consent to the force that C.G. intentionally applied to her on the occasion in question:

i. Having regard to the credibility and reliability considerations outlined above, I do not believe or accept the express and/or implicit suggestions made by Mr G. during the course of his testimony that Ms S. subjectively consented to his applications of force to her on the second occasion of sexual activity between them, or indicated any such subjective consent either by word or gesture; e.g., by her alleged calling of Mr G. to “finger” or digitally penetrate her vagina on the stairway between the ground floor of the B.C. residence and its upstairs area, or by then spreading her legs to facilitate that happening. As noted above, I do not believe or accept that any such incident of that nature ever happened, let alone that Ms S. ever subjectively invited, encouraged and/or otherwise consented to any such sexual activity. Nor did any of the testimony provided by Mr G. in that regard raise what I considered to be a reasonable doubt as to whether such things did happen; i.e., so as to indicate directly or indirectly that Ms S. subjectively consented to his intentional applications of force on the occasion of their second sexual interaction.

ii. Having regard to the credibility and reliability considerations outlined above, the evidence at trial which I do accept, and the testimony of Ms S. in particular, established to my satisfaction and beyond a reasonable doubt that she did not want or welcome any of the aforesaid touching of her by Mr G. that occurred on the second occasion of their sexual interaction, and she did not subjectively consent to such intentional applications of force.

iii. In my view, the Crown accordingly has established, beyond a reasonable doubt, this second essential element of the sexual assault offence charged in Count 2 of the indictment; i.e., that Ms S. did not consent to the intentional applications of force applied to her by Mr G. on the occasion in question. Moreover, the Crown has done so without having to resort to possible application of subsections 265(3)(d) and 273.1(2) of the Criminal Code, upon which the Crown relied in the alternative, and which I nevertheless will address later in these reasons by way of what essentially will be obiter comments, lest there be any doubt of what my findings in that regard would have been.

c. In relation to the third essential element of the sexual assault offence charged in Count 2 of the indictment, which requires the Crown to prove beyond a reasonable doubt that C.G. knew that A.S. did not consent to the force that C.G. intentionally applied to her on the occasion in question:

i. Having regard to the credibility and reliability considerations outlined above, I neither believe nor accept the testimony of Mr G. and its implicit if not explicit indication or suggestion that he believed Ms S. was subjectively consenting to his intentional applications of force on the occasion in question, and/or that he believed she was subjectively consenting in that regard. Nor does his testimony give rise to what I consider to be any reasonable doubt in that regard.

ii. Having regard to the evidence at trial I do accept in relation to this issue, (and in particular the testimony of Ms S. in that regard, which I accept and believe having regard to the credibility and reliability considerations outlined earlier), I am satisfied beyond a reasonable doubt that Mr G. had actual knowledge that Ms S. was not subjectively consenting to his intentional applications of force on the occasion in question, and/or should be considered to have had such knowledge based on his recklessness and/or wilful blindness in that regard. Without limiting the generality of the foregoing:

1. Mr G. entered the bedroom and bed of Ms S. in a completely uninvited manner, without asking any questions and without any discussion in that regard. After his initial attempts to then engage Ms S. in a perfunctory discussion, he was told by Ms S. in no uncertain terms that she wanted him to leave.

2. When Mr G. then slid closer to Ms S. and embraced her by placing his arms around her, he did so without requesting or obtaining her permission to do so and met with immediate physical resistance on her part as she tried to fidget and wiggle her body in an effort to escape his grasp. That too should have sufficed to make clear to him, once again, that his physical attentions towards Ms S. were unwelcome.

3. When Mr G. then proceeded to kiss Ms S. on the lips and neck, and on her torso above her clothing, and use his hands to caress the inside of her legs and the area between them, she was clearly resisting his efforts to kiss her by repeatedly turning her head from side to the other, while also providing crystal clear verbal indications that she wanted him to stop what he was doing; i.e., saying “C., you can leave”, “C., no”, and “Stop”.

4. As Mr G. persisted further in his physical touching of Ms S., up to and including his removal of her shorts and penetrating her vagina with his penis to engage in vaginal intercourse, without use of a condom, Ms S. provided further clear and oft repeated verbal indications that she wanted him to stop what she was doing, (e.g., “No C., “Stop C.”, “Please stop” and “No”), while she also engaged in obvious physical resistance to what he was doing by continuing to squirm her body, and by turning her head from side to side to avoid his ongoing efforts to kiss her during that vaginal intercourse. She also clearly did not comply with his request/instruction that she move/bend her legs to facilitate his thrusting and penetration of her vagina, which he noted and addressed by using both of his hands to move/bend her legs himself.

5. In short, Mr G. proceeded to invade the extremely personal space of Ms S. without inquiry or invitation, and then persisted in his increasingly aggressive and invasive touching of her despite clear verbal and physical indications from her that she wanted him to stop what he was doing.

iii. In the circumstances, I think it clear beyond a reasonable doubt that, on the occasion in question, Mr G. initially proceeded with recklessness and/or wilful blindness as to whether Ms S. would consent to his contemplated intentional applications of force to her, and then proceeded with that touching despite having actual knowledge, via her verbal comments and physical resistance, that Ms S. was not consenting to his intentional applications of force on the occasion in question. The Crown accordingly has established this essential element of the charge of sexual assault alleged in Count 2 of the indictment.

d. Finally, in relation to the fourth essential element of the sexual assault offence charged in Count 2 of the indictment, which requires the Crown to prove beyond a reasonable doubt that the force C.G. intentionally applied on the occasion in question took place in circumstances of a sexual nature:

i. As noted above, the intentional applications of force directed by Mr G. to Ms S. on the occasion in question included, after his uninvited entry into her bedroom and bed:

1. embracing Ms S. by placing his arms around her;

2. kissing her on the neck and using his hands to caress the inside of her legs and the area between them;

3. removing the shorts she had been wearing;

4. penetrating her vagina with his erect penis without using a condom to engage in unprotected vaginal intercourse with her for approximately five to 10 minutes, while trying to kiss her on the lips and neck, grabbing her by the chin with his hand to prevent her from moving her head back and forth to avoid his attempts at kissing, and using a hand to place her neck in a chokehold while thrusting his penis harder into her vagina.

ii. For the reasons outlined above, I believe and accept the testimony of Ms S. in that regard, and think it clear beyond a reasonable doubt that any reasonable person, observing such conduct, would think it readily apparent that the touching was taking place in circumstances of a sexual nature. Certainly, the conduct of Mr G. in that regard involved the demeaning and degradation of Ms S. for the sexual pleasure of Mr G.

iii. To the extent the testimony of Mr G. suggested the contrary, I did not believe him, for the reasons outlined above. Nor did his testimony raise any reasonable doubt in my mind, in that regard.

iv. In my view, the trial evidence I did accept established, beyond a reasonable doubt, the fourth and final essential element of the sexual assault offence charged in Count 2 of the indictment.

e. All four essential elements of the sexual assault offence charged in Count 2 of the indictment having been proved beyond a reasonable doubt, there will be a finding of guilt in relation to Count 2.

[Subsections 265(3)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(d) and [273.1(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(c) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

40Before proceeding with the formal delivery of verdicts in relation to the two counts of the indictment, I will comment on subsections 265(3)(d) and 273.1(2)(d) of the Criminal Code, which Crown counsel raised and relied upon in the alternative during the course of closing arguments. In particular:

a. When it came to addressing what I have described earlier in these reasons as the second essential element of sexual assault, which the Crown was required to establish beyond a reasonable doubt in relation to each of the sexual assault charges set forth in the indictment, (i.e., that the complainant Ms S. did not consent to the intentional applications of force that Mr G. intentionally applied to her on each of the two occasions in question), Crown counsel relied primarily on the complainant’s testimony that she subjectively did not consent to the relevant intentional applications of force applied to her by Mr G.

b. Crown counsel nevertheless submitted in the alternative that, if I believed and accepted the account of events provided by Mr G. in the course of his testimony, suggesting that Ms S. had indicated by her words, gestures and/or other conduct that she was subjectively consenting to his intentional applications of force at the relevant times, or if that testimony or other evidence caused me to have any reasonable doubt about whether lack of the complainant’s subjective consent to such intentional applications of force had been proved beyond a reasonable doubt, then I should find any such ostensible subjective consent by the complainant to Mr G.’s intentional applications of force vitiated by the operation of s.265(3)(d) and/or s.273.1(2)(d) of the Criminal Code.

41Those provisions of the Criminal Code, together with additional provisions necessary to put them in context, read in part as follows:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly …

(2) This section applies to all forms of assault, including sexual assault …

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of …

(d) the exercise of authority. …

273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of section ... 271, … the voluntary agreement of the complainant to engage in the sexual activity in question. …

(2) For the purpose of subsection (1), no consent is obtained if …

(d) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority …

42As emphasized by the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, at paragraphs 33-36, these provisions of the Criminal Code reflect a legal reality that, in the context of determining whether the Crown has proved lack of complainant consent to intentional application of force as an essential element of the offence of sexual assault, the presence of actual subjective consent of a complainant at the relevant time, or a reasonable doubt as to whether actual subjective consent existed, does not necessarily end the matter and result in an acquittal. To the contrary:

a. Any such actual subjective consent by a complainant must also be effective “as a matter of law”, and the law sometimes “steps in” to say that, despite the complainant’s subjective agreement to certain activity, that ostensible consent will not be given legal effect; i.e., in certain circumstances, the complainant’s subjective consent will be treated as having been “vitiated” by operation of law.

b. Sometimes, the policy that vitiates a complainant’s ostensible consent to certain activity emanates from the common law.

c. At other times, the policy that vitiates a complainant’s ostensible consent to certain activity has been codified by legislation. For example:

i. Subsection 265(3) sets out a number of factors that will vitiate a complainant’s subjective consent to the intentional application of force to him or her, including circumstances where such ostensible subjective consent will not be given legal effect because it was the product of force, threats or fear of force, certain types of fraud, or the exercise of authority.

ii. Subsection 273.1(2)(c) also vitiates ostensible subjective consent where a complainant is induced into sexual activity by the accused abusing a position of trust, power, or authority. When ostensible subjective consent is the product of such factors, the law regards the complainant as having been deprived of control over who touches his or her body and how, and there is no consent in law.

d. Such factors or considerations do not “prevent” the existence of a complainant’s subjective consent to certain activity, and sexual activity in particular. Rather, they recognize that even if the complainant has permitted the sexual activity in question, there are circumstances in which that subjective consent will be vitiated, (i.e., deemed of no force or effect), in which case the Crown will still have proved lack of complainant consent to such activity, (e.g., the second essential element of the offence of sexual assault), despite a finding that the complainant subjectively consented to such activity or a reasonable doubt as to whether the complainant did so.

43Other general principles relevant to the possible application of subsections 265(3)(d) and/or 273.1(2) of the Criminal Code include the following:

a. If the Crown relies upon such provisions to vitiate a complainant’s ostensible consent to an alleged sexual assault under section 271 of the Code, the onus is on the Crown to establish the requisite factual underpinning for application of those provisions. See, for example, R. v. A.H., [2000] O.J. No. 3258 (C.A.), at paragraph 12.

b. Appellate authority has emphasized that the clear aim of such provisions is the protection of the vulnerable and the weak, and the preservation of the right to freely choose to consent to activity, and sexual activity in particular. See, for example, R. v. A.H., supra, at paragraph 17, and the authorities cited therein, as well as R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at paragraph 3.

c. In relation to s.265(3)(d) of the Criminal Code:

i. Exercise of authority in the sense required is not limited to relationships where there is a right to issue orders and to enforce obedience. Where there is a significant power imbalance between the accused and the complainant, that can have an effect on a complainant’s apparent consent to conduct. In particular, it is open to the court to find that there was no consent by reason of an overwhelming imbalance of power in the relationship between an accused and a complainant. See R. v. Saint-Laurent (1994), 1993 4380 (QC CA), 90 C.C.C. (3d) 291 (Que.C.A.), leave to appeal to S.C.C. refused 66 Q.A.C. 160n.

ii. More generally, an accused will be regarded as standing in a position of authority over a complainant if the accused can coerce the complainant into consent by virtue of their relationship. See R. v. Geddes (2015), 2015 ONCA 292, 322 C.C.C. (3d) 414 (Ont.C.A.).

iii. Moreover, as reflected in the wording of s.265(3)(d), its provisions do not operate simply because a position of authority between the accused and the complainant has been established. The Crown must also prove beyond a reasonable doubt that the accused secured the complainant’s apparent consent to the relevant activity which is the subject matter of the charge by the exercise of that coercive authority over the complainant; i.e., that the complainant submitted or did not resist “by reason of … the exercise of authority”. See R. v. Matheson (1999), 1999 3719 (ON CA), 134 C.C.C. (3d) 289 (Ont.C.A.), and R. v. Geddes, supra.

d. In applying s.273.1(2)(c) of the Code:

i. Courts have turned to authorities addressing section 153 of the Code for guidance as to the meaning of a “position of trust” and/or a “position of authority”. See, for example, R. v. T.R., [1996] O.J. No. 4945 (Gen.Div.), at paragraphs 15-17.

ii. As to what kind of situations fall within the category of a “position of trust”:

1. In this context, what is in question is not the specialized concept of the law of equity called a “trust”. See R. v. P.S., [1993] O.J. No. 704 (Gen.Div.), at paragraph 21, affirmed [1994] O.J. No. 3775 (C.A.).

2. Nor are sentencing decisions referring to “trust” necessarily concerned with the concept of trust contemplated in this context. See R. v. D.B.L., (1995), 1995 2632 (ON CA), 25 O.R. (3d) 649 (C.A.), at paragraph 15.

3. Recognizing that the concept of a “position of trust” is difficult to define in the absence of a factual context, and that it would be inappropriate to attempt a precise delineation of its limits in a factual vacuum -- see R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171, at paragraph 37 -- our courts instead have provided more general descriptions and indications of the type of relationship contemplated by reference to a “position of trust” in this context. For example:

a. It has been said that the question of whether an accused was in a “position of trust” vis-à-vis a complainant focuses on a broad social or societal relationship between two people. In such a context, appropriate definitions of “trust” include “a firm belief in the reliability or truth or strength of a person”, and “confidence in or reliance on some quality or attribute of a person”. Primarily, a “position of trust” is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached. See R. v. P.S., supra, at paragraphs 36 and 37; and R. v. Audet, supra, at paragraph 35.

b. It also has been said that “trust” is a value that a complainant is entitled to put on a relationship; a relationship that develops by natural evolution over a period of time, (i.e., as opposed to a “new” relationship), and one which involves the trust held by a complainant in the good judgment and good intentions of the recipient of that trust. See R. v. Ogden, [1993] N.S.J. No. 346 (S.C.), at paragraphs 13 and 17.

4. While certain persons may routinely be regarded as occupying a position of trust in relation to certain other individuals by virtue of their status or relationship vis-à-vis such individuals, in the absence of a relevant statutory definition, the issue of whether an accused is in a “position of trust” vis-à-vis a complainant must remain fact-dependent, and no fixed definition of “position of trust” will fit all cases. See R. v. D.B.L., supra, at paragraph 11.

5. It should also be remembered that, while the existence of a trust relationship and corresponding “position of trust” often will be accompanied by indicia of a “position of authority”, (e.g., an authority by the dominant person over the other), that is not essential to the existence of a “position of trust”. In other words, there may be cases where there is a trust relationship and corresponding “position of trust”, but no “position of authority”. In particular, while there may be some similarities between a position of “trust” and a position of “authority”, the terms “trust” and “authority” are not interchangeable. To the contrary, a “position of trust” may be “somewhat different” or “significantly” different from a “position of authority”. See R. v. L.R.L., [2000] N.S.J. No. 251 (C.A.) at paragraphs 101 and 103; R. v. D.B.L., supra, at paragraph 11; R. v. P.S., supra, at paragraph 37; and R. v. Ogden, supra, at paragraph 13.

iii. As to what kind of situations fall within the category of a “position of authority”, beyond analogies to the “exercise of authority” referenced in s.265(3)(d) of the Code:

1. In the absence of a statutory definition, interpreting what constitutes a position of “authority” in this context begins with consideration of the ordinary meaning of the words Parliament has used. In that sense, “authority” has been defined as the “right to command”, a “power or right to enforce obedience”, a “power to influence the conduct and actions of others”, and “superiority of merit or seductiveness that compels unconstrained obedience, respect and trust”. See R. v. Audet, supra, at paragraph 34.

2. A “position of authority” also invokes notions of power, and the ability to hold in one’s hands the future or destiny of the person who is the object of the exercise of the authority. See R. v. Kyle (1991), 1991 11758 (ON CA), 68 C.C.C. (3d) 286 (Ont.C.A.), at paragraphs 3-4; and R. v. P.S., supra, at paragraph 37.

3. However, to be in a “position of authority” vis-à-vis another does not necessarily entail the exercise of a legal right in relation to another. It also includes a lawful or unlawful “power to command” which one person may acquire, in the prevailing circumstances, in relation to another. In other words, the term “position of authority” is not restricted to cases in which the relationship of authority stems from a role of the accused but extends to any relationship in which the accused actually exercises such a power over the complainant. Parliament intended to direct the analysis to the nature of the relationship between individuals, rather than their status in relation to each other. See Léon v. La Reine, 1992 3818 (QC CA), [1992] R.L. 478 (Que.C.A.), at p.483, and R. v. Audet, supra, at paragraphs 33 and 34.

iv. Appellate authority has noted that there is “little direct authority” on the meaning of “position of power” referred to in s.273.1(2)(c) of the Code, except to say that it is probably a broader term, and therefore less formalized or structured, when contrasted to positions of “trust” or authority”, and apparently connotes an “imbalance of power”. Again, see R. v. A.H., supra, at paragraph 17.

v. Inducing consent by abusing the relationships set out in s.273.1(2)(c) does not imply the same degree of coercion contemplated by s.265(3)(d) of the Code, which speaks to consent obtained where a complainant submits or does not resist by reason of the “exercise of authority”. It nevertheless does include circumstances in which a person in a position of trust over another used the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity. See, for example: R. v. Lutoslawski, 2010 ONCA 207, affirmed 2010 SCC 49, [2010] 3 S.C.R. 60; and R. v. Snelgrove, supra.

vi. As with s.265(3)(d) of the Criminal Code, merely establishing the existence of a relationship described by s.273.1(2)(c) will not suffice to engage its operation. Rather, the operation of s.273.1(2)(c) of the Criminal Code, so as to vitiate the ostensible consent of a complainant to sexual activity, expressly requires not merely the existence of a relationship involving a position of trust, power, or authority, but also proof beyond a reasonable doubt that the accused induced the complainant to engage in the relevant activity by actually abusing or misusing that position. See R. v. A.H., supra, at paragraph 13, and R. v. Audet, supra, at paragraphs 13, 22 and 23.

44For reasons outlined earlier in this decision, in my view the Crown has established beyond a reasonable doubt that the complainant Ms S. did not subjectively consent to the intentional applications of force underlying either of the sexual assault charges in this case. There accordingly was no subjective consent of the complainant to such intentional applications of force, ostensible or otherwise, and the need to consider whether any such subjective consent may have been vitiated by the operation of subsections 265(3)(d) and/or 273.1(2)(c) of the Criminal Code accordingly does not arise.

45As noted above, my comments in that regard therefore inherently are obiter.

46However, for the sake of completeness, and so that my views in relation to such matters are clear:

a. Had I believed and accepted the version of events put forward by Mr G. in his testimony indicating or suggesting that Ms S. subjectively consented to his intentional applications of force underlying the charges of sexual assault, or had that testimony created a reasonable doubt in my mind as to whether Ms S. had subjectively consented to those intentional applications of force, I would not have been satisfied beyond a reasonable doubt that Ms S. submitted to and/or did not resist those intentional applications of force by reason of “the exercise of authority” by Mr G. Nor would I have been satisfied beyond a reasonable doubt that Mr G. was in a “position of authority” and/or a “position of power” vis-à-vis Ms S., or that Ms S. was induced to engage in such activity by the abuse of a “position of authority” and/or “position of power”. Without limiting the generality of the foregoing in that regard:

i. In my view, there was little or no evidence to indicate or suggest the existence of any significant and overwhelming power imbalance between Mr G. and Ms S., in the sense contemplated by the authorities; i.e., a relationship power imbalance, as opposed to an imbalance in terms of the physical size and strength of Mr G. vis-à-vis Ms S.

ii. In particular, while there was significant and substantial evidence of Mr G. being supportive of Ms S., and of Ms S. occasionally seeking the advice or sympathetic ear of Mr G., in my view there was little or no evidence to suggest that Mr G. ever was granted or assumed any authority, right or ability, (parental or otherwise), to make decisions in relation to Ms S., and/or command, compel or coerce her compliance with and/or obedience to any directives or decisions made by Mr G. as to what Ms S. could or should do or not do at any given time. Nor was there any evidence to suggest that Ms S. complied routinely or indeed ever with any directives, instructions or commands of Mr G., apart from the occasions underlying the charges in the indictment; e.g., when she was said to have complied with directions from Mr G. that she remove items of her clothing.

iii. To the extent Ms S. submitted to or did not resist the directions, commands and/or conduct of Mr G. on the occasions underlying the charges in the indictment, I believe and accept the testimony of Ms S. that was the outcome of her having repeatedly said “no” and “stop” to Mr G. without his heeding or complying with her requests, and his instead pressing on with his unwanted intentional applications of force, such that she felt obliged to “give up” and engage in no further verbal or physical resistance to what Mr G. was doing, owing to his superior size and strength and her lack of any effective ability to seek assistance from others.

b. Had I believed and accepted the version of events put forward by Mr G. in his testimony indicating or suggesting that Ms S. subjectively consented to his intentional applications of force underlying the charges of sexual assault, or had that testimony created a reasonable doubt in my mind as to whether Ms S. had subjectively consented to those intentional applications of force, I nevertheless would have been satisfied beyond a reasonable doubt that Mr G. induced Ms S. to engage in the activity that occurred on each occasion by abusing a position of trust. Without limiting the generality of the foregoing in that regard:

i. Despite the efforts of defence counsel to suggest that Mr G. and Ms S. had both a geographically and figuratively distant relationship after Mr G. ceased to live in the B.C. residence on a full time basis, I am satisfied beyond a reasonable doubt, based on all of the evidence presented at trial, (but also even if I focused exclusively on and accepted the testimony of Mr G. alone), that Mr G. stood in a position of trust vis-à-vis Ms S.

ii. Having regard to the cumulative effect of all the detailed developments in that regard which I described earlier, in my view a relationship between the Mr G. and Ms S. clearly had developed and evolved naturally over an extended period of time, through which Mr G. assumed a position vis-a-vis Ms S. which understandably caused her to feel that her interactions with Mr G. would transpire in circumstances of safety, confidence and reliability as far as he was concerned, accompanied by a belief in his good intentions.

iii. As Ms S. indicated, the repeated acts of consideration, kindness and support extended to her by Mr G. over time, and his repeated willingness to act as her confidante, (all despite his primary residence in Toronto and the geographic demands of his employment), led her to regard Mr G. as a father-figure and stepfather, who had treated her and would treat her as if she was his own biological daughter. Indeed, Mr G. himself confirmed, during the course of his cross-examination, that everything Ms S. indicated in that regard, in the letter she wrote in 2018 to support the efforts of Mr G. to remain in Canada, (e.g., about the kindness and support shown to her by Mr G., about Mr G. being her best friend, and treating her like his own biological daughter), was correct.

iv. Mr G. himself also expressly indicated and/or acknowledged, at various points during the course of his cross-examination:

1. that Ms S. was his stepdaughter;

2. that he saw her as his stepdaughter;

3. that he repeatedly was proud of Ms S. from a “step-dad” perspective;

4. that he looked on Ms S. in the same way as he regarded his own biological daughter in Jamaica; and

5. that he regarded Ms S. as his daughter.

c. Had I believed and accepted the version of events put forward by Mr G. in his testimony, indicating or suggesting that Ms S. subjectively consented to his intentional applications of force underlying the charges of sexual assault, or had that testimony created a reasonable doubt in my mind as to whether Ms S. had subjectively consented to those intentional applications of force, I also would have been satisfied beyond a reasonable doubt that any subjective consent of Ms S. to the relevant intentional applications of force by Mr G. would have been induced by Mr G. abusing that position of trust. Without limiting the generality of the foregoing, the opportunity for Mr G. to engage in the sexual activity underlying the charges in the indictment arose from and depended entirely upon the fact that he had assumed a position of trust vis-à-vis Ms S.; a position whereby Mr G. was permitted to enter and remain in the [B.C.] residence […], and interact with Ms S. on the occasions in question, even in the absence of her mother, because he had assumed the role of a trusted stepfather vis-à-vis Ms S.; someone who could be trusted to always act in her best interest rather than his own selfish interest. In particular:

i. On the occasion of the first sexual assault, Mr G. was welcomed into the home of Ms S., in the absence of her mother, not only because he generally has assumed the position of trust described above, but because Ms S. proactively had sought the support, reassurance and assistance of Mr G. on that particular occasion to help her avoid a feared confrontation between Ms S. and her mother in relation to the latter’s discovery of the lighter Ms S. used to smoke marihuana, and a possible ensuing revelation to her mother that Ms S. was using that substance.

ii. On the occasion of the second sexual assault, Mr G. was able to enter the residence, bedroom, and bed of Ms S. at such an early hour and engage in sexual intercourse with her when she was still groggy and not fully awake, because of the position of trust he had assumed.

iii. Even if the second occasion of sexual interaction between Mr G. and Ms S. had happened in the manner he described, (i.e., with his digital penetration of the vagina of Ms S. while she sat on the stairway of the B.C. residence – although I neither believe nor accept that such an incident happened, nor have any reasonable doubt in mind that it did), in my view that too would not have occurred but for the abuse of the position of trust Mr G. had assumed vis-à-vis Ms S., which was the only reason he would have been alone with her in the B.C. residence at the time of that alleged but in my view non-existent incident.

d. In short, even if I had believed and accepted the version of events put forward by Mr G. in his testimony, indicating or suggesting that Ms S. subjectively consented to his intentional applications of force underlying the charges of sexual assault, or had that testimony created a reasonable doubt in my mind as to whether Ms S. had subjectively consented to those intentional applications of force, in my view the Crown would have proved beyond a reasonable doubt that any such ostensible subjective consent by Ms S. was vitiated by the operation of s.273.1(2)(c) of the Criminal Code.

Conclusion – Formal delivery of verdicts

47At this point, I will ask the accused, C.G., to please stand.

48Mr G., for the reasons I have outlined, I find you guilty as charged in relation to each of the two counts of the indictment. In particular:

a. in relation to Count #1 of the indictment, accusing you of sexual assault, contrary to section 271 of the Criminal Code of Canada, I find you guilty; and

b. in relation to Count #2 of the indictment, accusing you of sexual assault, contrary to section 271 of the Criminal Code of Canada, I find you guilty.

49The electronic indictment will be endorsed accordingly.

Justice I.F. Leach

Released: March 1, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

C.G.

REASONS FOR JUDGMENT