Court File and Parties

COURT FILE NO.: CR-23-70000191 CR-23-700000192 DATE: 20241101 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – S.F.

COUNSEL: A. Linds, for the Crown S. Shikhman, for S.F.

HEARD: September 24-26, October 1, 2024

Reasons for Judgment

SCHRECK J.:

[1] In 2020, R.J., a 21-year-old woman who had recently moved out of her parents’ home, began a relationship with S.F., a man 20 years her senior whom she had met on a dating app. The relationship quickly became turbulent and toxic, largely due to S.F. being possessive and controlling of R.J. While she resented this, she did not want to end the relationship.

[2] In early October, 2020, after a night of consuming cocaine together, R.J. and S.F. had a big argument at his home during which he told her to leave the apartment because he no longer wished to be in a relationship with her. R.J. did not want to leave. S.F. told her that if she wanted to stay, she would have to agree to have a baby with him. R.J. did not want to have a baby and they had a conversation in which he attempted to persuade her to agree to do so. They later had sexual intercourse that day and the following day for the purpose of making her pregnant, which did not occur.

[3] During the same period, S.F. began to change the passwords on R.J.’s social media and email accounts, which prevented her from accessing them. Upon discovering this, R.J. went to the police and made a statement which resulted in S.F. being arrested and charged with two counts of sexual assault, assault and mischief by interfering with computer data. He was released on bail, which included a condition that he have no direct or indirect contact with R.J.

[4] Despite S.F.’s bail conditions, he and R.J. continued to have frequent contact over the next several months, which was often initiated by her. The contact ended in January 2021 when S.F. was arrested again after R.J. told the police that he had sent a picture of her breasts to a mutual acquaintance without her consent.

[5] S.F. is now before this court charged on two indictments with two counts of sexual assault (Counts 1 and 5 on indictment CR-23-70000192), threatening bodily harm (Count 2), assault (Count 3), mischief to computer data (Counts 4, 6, 7, 8, 9 and 10), voyeurism (Count 11), distributing an intimate image (Count 12), and three counts of failing to comply with a recognizance (Counts 1, 2 and 3 on indictment CR-23-70000191). He has elected to be tried without a jury. R.J. was the only witness who testified.

[6] The central issue with respect to the sexual assault counts is whether the Crown has proven beyond a reasonable doubt that R.J. did not consent to the sexual contact or whether any consent was vitiated. The central issue with respect to the other counts is whether R.J.’s evidence was sufficiently credible and reliable to support a conviction.

[7] The following reasons explain the verdicts I have reached with respect to each count.

I. Evidence

A. The Beginning of the Relationship

[8] In July 2021, 21-year-old R.J. moved out of her parents’ home, where she had been raised in a religious and sheltered environment. Her plan was to find employment and to have new life experiences, including casual dating relationships. To this end, she created an account on Tinder, a dating app. She adjusted the settings on the app so that she would be able to meet people from a wide range of ages. She soon met S.F., who was 40 years old.

[9] R.J. and S.F. exchanged text messages for a few days and then arranged to meet at a bar one evening at the end of August. While they were there, S.F. invited R.J. to his apartment, where he was having a party. She accepted the invitation. A number of people were there drinking and consuming cocaine.

[10] R.J. thought that S.F. was “very fun and nice” and they began to spend almost every day together, mostly at his apartment because the COVID-19 pandemic was ongoing and there were not many places to go. For the most part, they “hung out,” cooked food and consumed cocaine together. R.J.’s cocaine use caused her to miss a lot of work at a new job she had recently been hired at, resulting in her dismissal.

[11] Two days after they first met, S.F. told R.J. that he loved her. She thought that this was “special” and she told him that she loved him too. At some point a few weeks after the relationship began, S.F. indicated that he wanted to have a monogamous relationship. According to R.J., she told him that she was only interested in having a casual relationship. He was “not happy” when she told him this, but did not become angry.

[12] R.J. testified that a few weeks into the relationship, she began to want to spend more time with her friends. She and S.F. began to have “a few small arguments” because he wanted to come with her and meet her friends, which she did not want because of their age difference. He began to “guilt trip” her about doing things without him and she began to lie about where she was going. He sometimes contacted her while she was out to ask her where she was. A couple of times, he asked her to send him a photograph showing where she was and what she was doing.

B. The Events of October 4-5, 2020

(i) The Argument

[13] On Sunday, October 4, 2020, R.J. had spent the weekend at S.F.’s apartment and woke up in the afternoon. She told him that she planned to visit her mother that evening. He accused her of lying about this and they began to argue. Both of them had been consuming cocaine in the period leading up to the argument.

[14] At one point during the argument, S.F. told R.J. to get her phone and unlock it. She did so. He told her that he knew the password to her phone and had been examining its contents. He directed her to open a specific text message and then began to ask her about other texts. Some of the texts contained evidence that R.J. had had some sort of intimate encounter with another man. [1]

[15] S.F. became angry after looking at the phone. He told R.J. that she was “promiscuous” and called her a “whore,” a “liar” and “crazy.” He said that he wanted to end the relationship and told her to leave the apartment. R.J. did not want the relationship to end and told S.F. that she wanted to stay.

(ii) The First Alleged Sexual Assault

[16] According to R.J., S.F. told her that if she wanted to stay, then he wanted to have a baby with her. They then had a “heated and passionate” conversation about having a baby and getting married. R.J. said that she did not want to have a baby and S.F. made a series of suggestions about how they could make it work. R.J. testified that during the conversation, she came to realize that if she wanted to stay there that night, she would have to have a baby, although she did not want to. S.F. told her that if she wanted to stay, this is what she would have to do.

[17] S.F. asked R.J. if she loved him and she replied that she did. He then asked her to remove her clothing. She testified that she did so because she did not want to leave and wanted to make the relationship work. They then had sexual intercourse, which R.J. testified she had not wanted to do. After having intercourse, S.F. held R.J.’s legs up as he believed that this would increase the chances of her getting pregnant.

(iii) The Alleged Threat

[18] Later that evening, S.F. went though R.J.’s things to see if she had any type of birth control. He told her not to take Plan B (an emergency contraceptive) and said, “If I don’t see like a pregnancy – a positive pregnancy test in the next 60 days, we’re going to go to the doctor.”

[19] R.J. had an app on her phone which she used to track her menstrual cycle. S.F. looked at it, determined when she was next going to ovulate, and said “we are going to make sure that we try again on that day.” He then wrote down the dates on which R.J. was to ovulate in a note-taking application on his phone and labelled it “Baby making days.”

(iv) Alleged Mischief to Data

[20] R.J. testified that S.F. held onto her phone after the sexual intercourse and said that he wanted to go through its contents. He also asked her for the password to her laptop computer, which she provided to him. She observed S.F. looking at both the phone and the laptop. She then went to sleep. She awoke a few times during the night and each time observed S.F. still looking at the phone and the computer.

[21] The next morning, Monday, October 5, R.J. got up and got ready to go to work. S.F. told her that he was going to hold onto her phone until “he learns to trust me again.” R.J. told him that she needed her phone to take to work, to which he responded, “it’s either me or the phone, which do you care about more?” She told him that she did not care about the phone more than a human being, but she needed it back.

(v) The Alleged Assault

[22] After R.J. said that she needed her phone back, S.F. threw her phone, laptop and other items of hers at her and said, “You can have them, get out.” He then “kind of grabbed the back of the collar of my back of the jacket and kind of like shoved me out the front door.”

(vi) Further Alleged Mischief to Data

[23] After she was out of the apartment, R.J. realized that the password on her phone had been changed. She began banging on the door of S.F.’s apartment and asked for the new password. S.F. shouted some numbers from behind the door, which R.J. entered into her phone and with which she was able to access it. She then left to go to work.

[24] R.J. tried to call S.F. while she was on the way to work and after she arrived there, but could not reach him because he had blocked her number. She then called him from the office phone and was able to reach him. He told her to stop calling him and to leave him alone. R.J. left work early and went to S.F.’s apartment, but the concierge would not allow her in. She then went to the home of a friend and slept there.

[25] R.J. initially testified that after she left S.F.’s apartment, she entered the password into her phone and realized that it had been erased and all her photographs and messages were gone. She later changed her evidence and said that the phone appeared to be working normally until the following night, when she woke up at her friend’s home and saw that the contents of her phone had been erased. Over 20,000 photographs were missing. R.J. initially testified that she never recovered the photographs since that time. She later changed her evidence and acknowledged that she recovered them the following day and still has access to them.

[26] According to R.J., the passwords to her social media accounts had also been changed and she was unable to access them. She called S.F. to ask him to restore her phone and provide her with her passwords, but he told her that he did not know what she was talking about.

C. The Events of October 6, 2020

(i) The Second Alleged Sexual Assault

[27] R.J. went to work the following day, Tuesday, October 6. In the afternoon, S.F. contacted her and invited her to his apartment. She agreed to go, partly to get her passwords and partly because she still wanted the relationship to work.

[28] When R.J. arrived at S.F.’s apartment, he was “very nice” and restored the contents of her phone, including the photographs, and provided her with her passwords. They then spent the afternoon together making food and talking.

[29] At about 7:00 p.m., R.J. told S.F. that she was going to visit her parents. He told her that she was “forgetting something” and that it was “baby making time.” He sat on the bed and patted the area next to him, which R.J. took to be an indication that he wanted her to sit there. She sat next to him and testified that she did so because she was worried that he would wipe the contents of her phone again.

[30] S.F. began to hold R.J. and kiss her. He removed some of her clothes and she thought that she also removed some of them herself but was not sure. R.J. testified that she felt like she “wasn’t there” and had “exited my body.” S.F. got on top of her and had sexual intercourse with her. He did not use a condom and ejaculated inside her. Afterwards, he held her legs up as he had done on the previous occasion. He patted her stomach and said that he was very excited.

[31] R.J. testified that she did not want to have sexual intercourse with S.F. on that occasion. She did not tell S.F. that she did not want to have sexual intercourse because she was worried that he would do something to her phone. According to her, she was “just being normal” and “it was just kind of casual.”

(ii) Further Alleged Mischief to Data

[32] R.J. went to her parents’ home and spent the night there. The next morning (Wednesday, October 7), S.F. called her and she went to his apartment. R.J. initially testified that at this point, she did not have access to some of her social media, but later said that she did and only lost access later that afternoon. She then said that while she was at S.F.’s apartment on Wednesday morning, she noticed that he was receiving the same notifications on his tablet that she was receiving on her phone. He told her that he had access to her iCloud account and was going to use it to keep track of her until he could learn to trust her again. R.J. then left and went to work.

[33] While R.J. was at work, she tried to access her email and social media accounts but found that the passwords had been changed. She became very upset and went to the office of a co-worker and began crying. She told the co-worker what had happened and the co-worker advised her to go to the police.

D. Statement to the Police

[34] That evening, R.J. went to the police station and made a statement. In the statement, R.J. said that as she was leaving S.F.’s apartment on Monday, October 5, he slapped her in the face. She testified that this had not in fact occurred. She explained that she said this because “as I was frantically speaking, that came out” and that she had said it “to fill in the gaps.”

[35] After giving her statement, R.J. was taken to the hospital and examined. She was prescribed and took an emergency contraceptive. I was invited to and do take judicial notice that emergency contraceptives have significant and very unpleasant side effects.

E. The Events of October 9, 2020 to January 1, 2021

(i) Contact Following the Arrest

[36] S.F. was arrested after R.J. made her statement. On Friday, October 9, she was notified that he had been released on bail. She called him, but he did not answer so she went to his apartment. She did so because she was “feeling very emotional about the arrest” and “wanted comfort” and did not know where else to seek it. S.F. let her into the apartment and she stayed there for the next few days.

[37] R.J. and S.F. remained in contact from the time of his arrest until January 1, 2021. According to R.J., they would see each other for a few days, have an argument, not see each other for a few days and then resume contact, repeating the cycle over and over.

(ii) R.J.’s Contact With the Police

[38] On November 11, 2020, an email was sent from R.J.’s account to the officer-in-charge of the investigation, D.C. Guy Kama, stating that R.J. wanted to “take back my statement” and have the charges against S.F. dropped. According to R.J., S.F. had typed the email using her phone and had shown it to her before sending it. She had agreed to him sending it because she “wanted it to be over.”

[39] R.J. testified that she did not receive a response from D.C. Kama, so S.F. became “very impatient” and asked her to contact the police again. In fact, D.C. Kama had responded to her. R.J. testified that she agreed to contact D.C. Kama again to tell him that S.F. had not slapped her as she had said in her statement. Also, S.F. had convinced her that “what happened was not necessarily sexual assault.” R.J. wrote the email on November 20, 2020. S.F. then took her phone, edited the message and added to it. R.J. could not recall which portions had been added by S.F. She then sent the email to D.C. Kama. In the email, R.J. purported stated that the sexual contact between her and S.F. was “100% consensual” and that she did not want to proceed with the charges.

(iii) Further Alleged Mischief to Data

[40] R.J. believed that S.F continued to have access to her social media and email accounts between October and January. He sometimes texted her while she was out and indicated that he knew where she was. When she asked him how he knew this, he told her that he had “an informant.” As well, R.J. noticed that some messages on social media applications appeared to have been already opened even though she had not opened them herself.

[41] On several occasions, R.J. received text messages from social media applications which provided a passcode, which is something that occurred when a password was being changed. She lost access to her email several times when her password stopped working.

[42] When she lost access to her email or social media accounts, R.J. contacted S.F. to ask him for her password. He would either deny knowing what she was talking about or would tell her that he would give them to her later. R.J. was sometimes able to regain access by contacting customer support.

(iv) Alleged Distribution of an Intimate Image

[43] On January 1, 2021, S.F. lifted R.J.’s shirt and took a photograph of her breasts. She testified that she did not mind him doing so as she had assumed that the photograph was only for his own use.

[44] Later that day, R.J. received a text message from a friend of hers, H., who told her that he had received a nude photograph of her from S.F. H. then sent her the photograph, which she recognized as the one that S.F. had taken a short while earlier. The caption “Cum slut” had been added to the photograph. R.J. did not preserve the message or the photograph.

(v) The Second Arrest

[45] R.J. made a statement to the police at the beginning of January 2021. She provided the police with several screenshots of communications between her and S.F. as well as screenshots of text messages she had received from social media accounts which indicated that an attempt was being made to change the password. As a result, S.F. was arrested again.

(vi) Attempted Further Contact

[46] R.J. attempted to make contact with S.F. on a few occasions after the second arrest, but he did not respond to her.

II. Analysis

A. Overview of Applicable Legal Principles

[47] S.F. is presumed to be innocent of each and every count in the indictment. He may only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown. There is no onus on S.F. to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is closer to that standard than it is to proof on a balance of probabilities.

[48] There are several counts in the indictment. The Crown has not applied to have the evidence applied across counts. As a result, I must consider each count separately and reach a decision on each based only on the evidence that is relevant to and admissible on that count: R. v. T.C., 2019 ONCA 898, 383 C.C.C. (3d) 341, at para. 42; R. v. Tsigirlash, 2019 ONCA 650, at para. 23.

B. Credibility and Reliability

[49] The relationship between R.J. and S.F. was toxic. The numerous text communications that have been filed show that each subjected the other to manipulation and emotional abuse. [2] While this was interspersed with apparent affection, it was usually short lived. Yet despite the turbulence of the relationship, they appeared to be unable to stay away from one another.

[50] While R.J. and S.F. both treated the other poorly, this was not an equal relationship. R.J. had recently left what appears to have been a repressive and abusive household. She had never been in a relationship before and was inexperienced, naïve and vulnerable. S.F. was much older and more experienced. Instead of using his greater life experience to help and support R.J., he took advantage of her in many ways. R.J. was clearly emotionally damaged as a result of her relationship with S.F. and appears to continue to carry the trauma associated with it.

[51] All of that said, I must instruct myself as I would instruct a jury that my verdicts cannot be based on sympathy or prejudice and must be based on an objective assessment of the evidence. Having conducted that assessment, I have concluded that there are various problems with the reliability of R.J.’s evidence.

[52] First, in her first statement to the police on October 7, 2020, R.J. said that as she was leaving S.F.’s apartment on Monday, October 5, he slapped her in the face. This was not true, as she now acknowledges. She initially explained that she said this because “as I was frantically speaking, that came out” and that she had said it “to fill in the gaps.” She initially testified that she had said it only once because she “got the events mixed up.” In fact, she had mentioned the slap in her statement at least three times. When confronted with this in cross-examination, she alleged for the first time that S.F. had slapped her on other occasions and that this was what she had been referring to. However, this was inconsistent with her testimony at trial, where she had described the relationship prior to October 5 as being generally not acrimonious.

[53] I recognize that R.J. later told the police that the slap had not occurred, although she did not do so for several weeks. However, I do not accept her explanation that this false allegation of a slap simply “came out” as she was “frantically speaking” since she mentioned it at least three times in her statement, nor do I accept that she was referring to a slap on a different occasion. As a result, I am left with a false allegation of criminal conduct made during a statement that was presumably under oath and for which there is no satisfactory explanation. This is cause for concern.

[54] There were also some significant inconsistencies in R.J.’s evidence. For example, she testified that she had never told S.F. that she wanted to have children with him. In fact, she had said that in a text message she sent to him at some time between October and January. When confronted with this, R.J. explained that she had only said this in order to get S.F. to give her back her passwords. While this may explain why she said it, her initial denial was nonetheless inaccurate.

[55] When asked during her evidence in-chief whether she had any further contact with S.F. after her third statement to the police on January 12, 2021, R.J. initially said, “I think he may have continued to reach out to me.” She then corrected herself and said she thought that there was no more communication after that point. She then corrected herself again and said that she had sent a message to S.F. in March 2022 but that he did not respond and that this was the only time she attempted to contact him. R.J. later acknowledged that she had tried to telephone S.F. numerous times at the end of January 2021 and that she sent him a text on May 4, 2021. She also acknowledged contacting his surety. She at first claimed that she did so to “make an understanding of why she was going through such great lengths to help an abuser,” but then admitted that she had done so to ask after S.F.

[56] R.J. also initially denied that she had contacted S.F.’s employer after his arrest in order to get him fired, then later admitted that she had done so.

[57] To be clear, I make no finding that R.J. was attempting to mislead the court. However, for the reasons I have explained, I have significant concerns about the reliability of her evidence where it is not confirmed by other evidence.

C. Sexual Assault (Counts 1 and 5)

[58] S.F. is charged with two counts of sexual assault. Count 1 relates to the events of October 5 and Count 5 relates to the events of October 6. There is no issue that there was sexual contact between S.F. and R.J. on those dates. The only issue is whether the Crown has proven that R.J. did not consent to the contact.

[59] Section 273.1(1) of the Criminal Code defines “consent” as “the voluntary agreement of the complainant to engage in the sexual activity in question.” It is well established that the absence of consent is determined solely by reference to the complainant’s state of mind towards the sexual contact at the time it occurred: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 26. There is no requirement that the Crown prove that the complainant expressed her lack of consent: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89.

[60] There are two ways in which the Crown can prove a lack of consent. The first is by proving that the complainant did not voluntarily agree to the sexual activity in question. However, if the Crown is unable to prove this beyond a reasonable doubt, in some circumstances it may be open to the Crown to prove that any voluntary agreement that existed was vitiated. There are several ways in which consent may be vitiated, including but not limited to threats, the use of force, or the abuse of a position of trust, power or authority. Circumstances in which consent has been vitiated are outlined in two sections of the Criminal Code which are discussed later in these reasons.

[61] The distinction between a lack of subjective consent and the vitiation of consent “may be subtle, but it is important”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 36; R. v. Kirkpatrick, 2022 SCC 33, 471 D.L.R. (4th) 440, at para. 35. The former is a purely a factual issue while the latter is tied to various policy considerations: G.F., at para. 36; Kirkpatrick, at para. 35.

[62] Where the Crown attempts to establish the actus reus by both routes, it is generally appropriate for the trier of fact to first consider whether a subjective lack of agreement has been proven. If there was subjective consent or there is a reasonable doubt with respect to the issue, the trier of fact should then consider whether any consent that existed was vitiated: R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 4; Kirkpatrick, at para. 34.

(a) The Context of the Alleged Sexual Assaults

[63] The context in which the sexual acts giving rise to the charges occurred was the argument between S.F. and R.J. on October 5. He was angry at what he perceived as infidelity on her part and told her that he wished to terminate the relationship. R.J. did not want to terminate the relationship. S.F. then told her that if she wanted the relationship to continue, they would have to have a baby together. The two sexual acts giving rise to the charges were, at least in S.F.’s mind, for the purpose of making R.J. pregnant.

[64] The criminalization of sexual assault is based on a need to protect the personal physical and psychological integrity of every person by ensuring that everyone has control over who touches their bodies as well as when and how they do so: Ewanchuk, at para. 28. It follows from this that “all persons are entitled to refuse sexual contact at any time, and for any reason”: Kirkpatrick, at para. 51; G.F., at para. 33; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 43. Similarly, all persons are entitled to agree to sexual contact at any time, and for any reason.

[65] The central issue in this case is whether R.J. agreed to have sexual contact with S.F. because she wanted to save her relationship with him and believed that this was the only way to do so. If she voluntarily agreed to have sexual contact with him, then she consented. Her reasons for agreeing are not relevant to the issue of consent, although they may be relevant to the issue of whether the consent was vitiated: Kirkpatrick, at para. 33.

(b) R.J.’s Evidence

[66] A determination of whether the Crown has proven a lack of consent beyond a reasonable doubt requires a careful examination of R.J.’s evidence on this issue, which was not without ambiguity.

[67] With respect to October 5, R.J. testified to having a “heated and passionate conversation” with S.F. during which she said that she did not want to have a baby and he made suggestions about how they could make that work. She described her state of mind at this point in the following terms:

… [H]e kept trying to - I said I don’t want to have a baby, I’m, you know, I’m 21, you know, I want to go back to school. He said, you know, was mentioning ways that we could make it work and listing different solutions, and then that’s when the conversation just got very serious and then I realized like if I want to stay with him tonight, this is kind of … In my head, I thought if I want to stay here tonight, I have to have a baby.

She also gave the following evidence:

Q. Did you want to have a baby with [S.F.]? A. No. Q. Was there ever a time you did? A. No. Q. Can you tell us about anything else that was going through your mind at this point? A. At this point in time, I was not thinking logically and I was in my head thinking, you know, how would I make this work, and then I knew this was insane, so I was just kind of going through all of those back and forth thoughts in my head.

[68] According to R.J., S.F. finally said something like, “If you want to stay, this is what we have to do.” She described what occurred next:

Q. … And what happens from there? A. It’s a very emotional conversation. He’s asking me if I really love him and care about him. I said yes. He asked me to remove my clothing. Q. Okay. Did you do that? A. I did. Q. Why? A. I didn’t want to leave. Q. Sorry, one more time? A. I didn’t want to leave. Q. Why didn’t you want to leave? A. I wanted to stay and make it work with him. Q. What time was it at this point? A. After midnight, but I don’t remember the specific time. Q. Were there any other reasons you didn’t want to leave? A. No. Q. What was going through your mind at this point? A. I was feeling very scared. I was feeling very - like I had no choice. I thought at the time my only choice was to make things work with him. I know now that that’s definitely not true, but at the time I felt so - this is all - this is it for me. Q. Can you help us understand that? Why was - why was it that you thought you had no choice? A. I was - I felt like I didn’t have much of another choice because I thought this was the best that I could do. I thought - I think, you know, throughout the time I knew him, I was made to feel that I don’t have anything going for me. I don’t have any chance at a successful life without him, and for a split second I believed that. Q. Why were you scared? You said scared moments ago. A. I was scared, because I was thinking oh my god, like now I have to have a baby and I don’t really want to do that right now.

[69] S.F. and R.J. then had sexual intercourse, which she described as follows:

Q. All right. So, can you tell us what happened from there? A. I’m just - I’m crying at this point, continuing to cry. He’s just asking me, you know, don’t I really love him, don’t I really care about him, don’t I want to do this. I didn’t say anything, I was just crying. I don’t remember the specifics, but we - he got on top of me and we started to - we started to have sex. Q. Did you want to have sex at that point? A. No. Q. Did you express that to him at that moment? A. No. Q. Were you crying? A. I was.

[70] However, later in her testimony, R.J. gave the following evidence:

Q. Okay. And in terms of the, as you put it, when he had sex with you, did - did he say anything while he was, for instance, when he got on top of you, did he use any words? A. He just kept asking me if I love him and just kept saying that like over and over. Q. Sorry, you trailed off. A. I’m sorry, he just continued to ask me during that if I love him. Q. What was your response, if any? A. I think that I just nodded and cried. Q. Do you remember any other words that were exchanged during that period of time? I’m asking about on the couch when he’s approached you there? A. I was like - I was crying, he was there, he said, you know, you know I love you, you know, you love me too, right, and this is - this is okay, like we’re okay, right? Sorry, that’s not the specific wording, but it was something along those - that - those lines. Q. So, he did ask you a question? A. He did. Q. And what did you respond? Did you have a response? A. I never verbally responded, I was kind of nodding my head and just crying the whole time. Q. Did he ever ask you about what he was doing as he went from one thing to another? Meaning he asked you to take off your clothes, I understand that? A. Yes. Q. Did he ask you if anything he was doing was okay? Go ahead, you should answer my question. A. Yes, he said something along the lines of “This is okay, right?” Q. Okay. And again, what was your response, if you had one? A. To my memory, I was nodding and crying. THE COURT: Sorry, say that again? He asked you what? A. If this was okay, right? CROWN COUNSEL: And your answer was that you were nodding and crying? A. Yes, that’s correct. Q. Why were you crying? A. It was an emotional argument, and I was about to essentially get pregnant. Q. So, one of the reasons you were crying, you said it was an emotional argument, and the other was that you believed you were essentially about to get pregnant? A. Yeah, that’s correct. Q. Any other discussion that you recall happening around that time during what you’ve described? A. No, that’s all. Q. Do you feel that you ever expressed agreement with what was happening? Did you ever say to him something that you believe indicated your interest or agreement in what was occurring? A. I never expressed agreement, but I never verbally said no.

[71] With respect to October 6, R.J. initially testified that S.F. had asked her if she had forgotten that it was “baby making time” and that she had said nothing in response because she was worried that he would wipe her phone. After reviewing her statement to the police, she testified that she had actually responded by saying, “I don’t know.” Her examination in-chief then continued as follows:

Q. So, your response, “I don’t know”, what was that in response to? A. I think at the time it wasn’t necessarily a response, I just said - I just said something to say something. Q. Okay. Did it have any meaning for you, what you were saying? A. I said I don’t know because I was like I don’t know, like I’m not sure, what if I want to do this, like this is not really, you know, I don’t know, but I was - I didn’t want to say no, because I was worried I was going to lose my phone again. Q. Did you feel you could say no? A. I was worried for my phone. I didn’t want my phone to be wiped again and I’d have no access. Q. Did he respond in any way when you said I don't know? A. He just started to like hold me and kiss me.

According to R.J., S.F. then began to remove her clothes and she also removed some of her clothes, after which they had sexual intercourse.

(c) Count 1

[72] In my view, it is not at all clear that R.J. did not consent to having sexual intercourse with S.F. on October 5 because she wanted to preserve the relationship and believed that this was the only way to do so. She specifically said, “In my head, I thought if I want to stay here tonight, I have to have a baby.” While she spoke of having “no choice,” she explained that this was with respect to saving the relationship. She said, “I thought at the time my only choice was to make things work with him.” Furthermore, while she testified at one point that she never expressed agreement, at another point she said that S.F. asked her, “This is okay, right?” and she responded by nodding, albeit while crying. I am not persuaded beyond a reasonable doubt that she did not consent on October 5.

(d) Count 5

[73] R.J.’s testimony about the sexual contact on October 6 was also ambiguous. When asked why she said, “I don’t know” when S.F. asked if she had forgotten that it was “baby making time,” she replied, “I said I don’t know because I was like I don’t know, like I’m not sure, what if I want to do this, like this is not really, you know …” and then added that she did not say “no” because she was worried that S.F. would do something to her phone. She then took off some of her own clothing and sexual intercourse with him.

[74] R.J. was still intent on saving the relationship at this point, so I cannot discount the possibility that she was continuing to agree to have a baby in order to do so and was voluntarily participating in the sexual activity for that purpose, particularly where she testified that, “like I’m not sure, what if I want to do this.” While I am not making any positive finding of fact in that regard, the ambiguity of her evidence combined with my concerns about its reliability in general lead me to conclude that I am not satisfied beyond a reasonable doubt that she did not consent to sexual activity on October 6.

[75] Given that I have a reasonable doubt on the issue of consent, I must now consider whether any consent that existed was vitiated. The vitiation of consent is the subject of two different sections of the Criminal Code (in addition to those based on the age of the complainant). Section 265(3), which applies to all forms of assault including sexual assault, sets out a number of circumstances in which consent is vitiated:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.

None of these apply in this case.

[76] Section 273.1(2), which applies only to sexual assault, sets out a number of circumstances in which “no consent is obtained”:

(2) For the purpose of subsection (1), no consent is obtained if (a) the agreement is expressed by the words or conduct of a person other than the complainant; (a.1) the complainant is unconscious; (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Most of these clarify circumstances in which consent does not exist and do not apply in this case. Only s. 273.1(2)(c) relates to the vitiation of consent: Kirkpatrick, at para. 32; G.F., at para. 44.

[77] With respect to s. 273.1(2)(c), there is no evidence that S.F. was in a position of trust or authority with respect to R.J. Thus, the issue is whether he was in a position of power and, if he was, whether he induced R.J. to engage in sexual activity by abusing that position of power.

(iv) The Meaning of “Power” in s. 273.1(2)(c)

(a) Overview

[78] In R. v. Hogg (2000), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 16, the Court noted the following with respect to s. 273.1(2)(c):

There is little direct authority on the meaning of “position of power” in the subsection and when contrasted to authority and trust it is probably the broader term and as such is less formalized or structured.

Although Hogg was decided over two decades ago, there is still little direct authority on the meaning of “position of power.” Determining its meaning requires a consideration of principles of statutory interpretation, the purpose of s. 273.1(2)(c), and an examination of what types of relationships have and have not been found to be positions of power in other cases.

(b) Statutory Interpretation

[79] The principle of statutory interpretation often referred to as the “associated words” or “noscitur a sociis” rule was described in R. v. Ali, 2019 ONCA 1006, 383 C.C.C. (3d) 184, at para. 69:

The associated words rule may be invoked when two or more terms, linked by “and” or “or”, serve an analogous grammatical and logical function within a provision. The terms draw their colour from each other. We look to a common feature among the terms and rely on that common feature to resolve ambiguity or limit the scope of the terms: Sullivan [Sullivan on the Construction of Statutes (6th ed., 20140], at para. 8.58; R. v. Goulis (1981), 60 C.C.C. (2d) 348 (Ont. C.A.), at pp. 352-353. See also, Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 64; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at paras. 49-51; Opitz v. Wrzesnewskvj, 2012 SCC 55, [2012] 3 S.C.R. 76, at paras. 40-43.

[80] It follows that the term “power” in s. 273.1(2)(c) draws its meaning from its association with the terms “authority” and “trust” and is limited by the common feature among the terms. In the context of a relationship, the terms “authority” and “trust” suggest defined roles within the relationship which, by their nature, give one party a position of dominance or strength with respect to the other party. As was explained in R. v. Lutoslawski, 2010 ONCA 207, 326 D.L.R. (4th) 637 (aff’d 2010 SCC 49, [2010] 3 S.C.R. 60), at para. 12, s. 273.1(2)(c) applies to

… the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of the relationship.

(c) The Purpose of s. 273.1(2)(c)

[81] The purpose of s. 273.1(2)(c) is the “protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity”: Hogg, at para. 17; R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at para. 3. It applies when a person in a “position of trust, power or authority” abuses that position in order to induce the complainant to engage in sexual activity, as was explained in R. v. Snelgrove, 2018 NLCA 59, 437 D.L.R. (4th) 484 (aff’d supra) at para 24:

Section 273.1(2)(c) does not require a finding of dependency by the complainant or a dominant position by the accused. Rather, section 273.1(2)(c) is engaged when an accused abuses, that is, misuses or makes improper use of his position of trust or authority, thereby inducing, that is, persuading or enticing the complainant to consent to sexual activity. (See definitions of “induce” in Webster’s Unabridged Dictionary, second edition (New York: Random House) 2001, to mean “to lead or move by persuasion or influence, as to some action or state of mind”; and in the Oxford Dictionary (Oxford University Press, Oxford) 2003, to mean “prevail on; persuade”. Black’s Law Dictionary, eighth edition, defines “inducement” to mean “The act or process of enticing or persuading another person to take a certain course of action”. “Abuse” in Webster’s Unabridged Dictionary is defined to mean “wrong or improper use; misuse”; and in the Oxford Dictionary to mean “improper use”.)

[82] It is important to note that the vitiating factors in s. 265(3) and s. 273.1(2)(c) are tied to policy considerations and only come into play where subjective consent exists or there is a reasonable doubt on the issue, as was explained in G.F., at para. 36:

However, these factors [enumerated in the vitiation provisions of the Code] do not prevent subjective consent. 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 — deemed of no force or effect. The distinction between preventing subjective consent and rendering it ineffective may be subtle, but it is important. A factor that prevents subjective consent must logically be linked to what subjective consent requires. Conversely, a factor that vitiates subjective consent is not tethered to the conditions of subjective consent and must find footing and justification in broader policy considerations.

Thus, s. 273.1(2)(c) will apply where the “power” in the relationship is such that consent obtained by its abuse should, as a matter of policy, be treated by the law as “ineffective” or “of no force or effect”: Kirkpatrick, at para. 32. It is for this reason that the “power” must be akin to “trust” or “authority.” The section will not apply in every case where a power imbalance exists.

[83] In my view, the correct approach is similar to that taken with respect to the meaning of the term “authority” in s. 265(3)(d). That term was held in R. v. Matheson (1999), 44 O.R. (3d) 557 (C.A.), at pp. 587-588 to mean “the power to influence the conduct and actions” of the other person. However, that definition was refined by Doherty J.A. in R. v. Geddes, 2015 ONCA 292, 322 C.C.C. (3d) 414, at para. 34:

I do not read Matheson as holding that the power of one person to influence another to any extent establishes “authority” over the other. Many people who are in a relationship may be influenced to engage in sexual activity by their partner. Influence, as it relates to true consent, is a question of degree. At some point, influence becomes coercion and apparent consent nothing more than submission.

Similarly, not every relationship where one party has some power over the other will be captured by s. 273.1(2)(c). It is a question of degree.

(d) Examples in Caselaw

[84] In Hogg, the Court held that the relationship between a drug supplier and a drug user could be, but is not necessarily, a relationship of power (at para. 17):

I have no doubt that it could have application to the relationship between a drug dealer and an addicted client. However, the relationship is not one of an imbalance of power per se. This is not a case of a position of authority or trust, such as in the prototypic doctor/patient, teacher/student relationship, where vulnerability is inherent to the relationship itself.

[85] A relationship of power was found to exist in R v. Thomas, 2022 BCSC 1633, at paras. 256-257 (aff’d without reference to this point, 2024 BCCA 150), a case where the complainant, a recent immigrant, was financially dependent on the accused and lived under his roof.

[86] In R. v. W.M., 2022 ONSC 3812, at para. 127, a relationship of power was found to exist where the complainant depended on the accused for a safe place to live and to finance his addiction to cigarettes.

[87] In R. v. Buchanan, [2010] O.J. No. 6102 (C.J.), the court concluded at a preliminary inquiry that there was some evidence of a position of power where the accused used to be the complainant’s teacher and basketball coach, although he no longer held those positions at the time the sexual activity took place.

[88] The Crown has relied on several cases in which there was some type of power imbalance between the accused and the complainant and submits that they bear some similarity to this case: R. v. Donnelly, 2023 ONCA 243, aff’g 2021 ONSC 4098; R. v. S.(D.G.) (2004), 72 O.R. (3d) 223 (C.A.), aff’d 2005 SCC 36, [2005] 1 S.C.R. 914; R. v. P.D.C., 2021 ONCA 134, 401 C.C.C. (3d) 406; R. v. Ahmed, 2022 ONSC 7189. However, there were not cases about the vitiation of consent. Rather, they were all cases where a finding of fact was made that there was no subjective consent because the accused engaged in extortion or other conduct which overcame the complainant’s will.

(e) Conclusion

[89] Based on the foregoing, in my view s. 273.1(2)(c) only applies where the accused abuses a position of power that is akin to a position of trust or authority, that is, inherent in the structure of the relationship, and the power imbalance is of such a degree that it is appropriate, as a matter of policy, for the law to treat what would otherwise be subjective consent as ineffective. The section will not always apply where a power imbalance is simply a feature of the relationship’s dynamics, which can exist in any relationship and which may change over time.

(v) Application to This Case

[90] This was clearly a toxic relationship but one which R.J., for whatever reason, desperately wanted to have continue. S.F. was undoubtedly aware of this fact and used it to his advantage to attempt to persuade R.J. to have a child with him. I accept that in the context of this toxic relationship, he had a misguided belief that marrying R.J. and having a child with her was a good idea. He did not want the relationship to end any more than she did, as is clear from how the relationship continued for the next several months despite its toxic nature.

[91] While S.F. took advantage of R.J.’s wish to continue the relationship and he was much older and more experienced than she was, she did not live with him and was not financially dependent on him in any way. Throughout their relationship, she maintained her own home and it appears that she was usually employed. Although R.J. and S.F. both used cocaine, there is no evidence that she had an addiction or that the drugs were supplied to her by S.F. He did not assault her or threaten to do so. Any power he had over her arose from her perception that she should continue to be in a relationship with him. While S.F. clearly used that power to persuade R.J. to have sexual relations with him for the purpose of having a baby, in my view this is not the type of power relationship that is captured by s. 273.1(2)(c).

[92] As indicated, I am not satisfied beyond a reasonable doubt that R.J. did not consent to having sexual contact with S.F. Nor am I satisfied beyond a reasonable doubt that her consent was induced by the abuse of a position of power within the meaning of s. 273.1(2)(c) or vitiated in any other way. It follows that S.F. must be found not guilty on Counts 1 and 5.

D. Threatening Bodily Harm (Count 2)

[93] Count 2 charges S.F. with threatening bodily harm. This count is based on R.J.’s evidence that after the sexual intercourse on October 5, S.F. told her that they would keep trying to have a baby and that if she did not have a positive pregnancy test within 60 days, they would go to see a doctor. As I understand the Crown’s argument, because R.J. testified that she did not want to get pregnant, S.F.’s remark was in effect a threat to repeatedly sexually assault her and to cause bodily harm, either in the form of psychological harm or by causing a pregnancy, which would be a form of bodily harm.

[94] For the reasons explained earlier, it is not clear that R.J. did not agree to have a baby with S.F. If she did, his comment that they would keep trying to get her pregnant was not a threat to sexually assault her. As a result, S.F. must be found not guilty on Count 2.

E. Assault (Count 3)

[95] Count 3, which charges an assault, is based on R.J.’s evidence that on the morning of October 5, 2020, S.F. grabbed her by the collar and pushed her out the door. It seems that the charge was initially based on R.J.’s now recanted allegation that he slapped her. Given that she has changed her evidence about what occurred at the time she left S.F.’s apartment and there is no satisfactory explanation for the change, I cannot rely on her evidence to the requisite degree of certainty. As a result, S.F. is found not guilty on Count 3.

F. Mischief to Data (Counts 4, 6, 7, 8, 9, 10)

(i) Overview

[96] S.F. is charged with six counts of mischief in relation to computer data, contrary to s. 430(5) of the Criminal Code:

Count 4 relates specifically to October 5, 2020 and alleges that S.F. did “deny access” to computer data, which is particularized as “an iPhone, a laptop or social media accounts.”
Count 6 relates to October 6, 2020 and alleges that S.F. did “deny access” to computer data, which is particularized as “social media accounts and email accounts.”
Counts 7 relates to October 30, 2020 and alleges that S.F. did “interfere with the lawful use” of computer data, which is particularized as “a computer program named Twitter.”
Count 8 relates to November 24, 2020 and alleges that S.F. did “interfere with the lawful use” of computer data, which is particularized as “a Google account.”
Count 9 appears to be identical to Count 8 except that the time period is November 24 to November 25, 2020 instead of simply November 24, 2020.
Count 10 relates to December 12, 2020 and alleges that S.F. did “interfere with the lawful use” of computer data, which is particularized as “a computer program SnapChat account.”

[97] R.J. testified that S.F. interfered with her social media and email accounts by changing the passwords and accessing them without her consent on an ongoing basis between October 5, 2020 and the beginning of January 2021. The Crown could have charged S.F. with a single count of mischief to computer data in relation to that entire period but instead chose to charge several counts related to particular dates and, except for Counts 4 and 6, particular computer programs. Once the Crown decided to do this, it was bound to prove the charges as particularized.

(ii) Count 4

[98] Count 4 relates to R.J.’s evidence that she saw S.F. using her phone and her laptop while she was at his apartment on October 5. She initially testified that after she left S.F.’s apartment, she entered the password into her phone and realized that it had been erased and all her photographs and messages were gone. She later changed her evidence and said that the phone appeared to be working normally until the following night when she woke up at her friend’s home and saw that the contents of her phone had been erased. At one point she said that 20,000 photographs were missing from her phone and that she never recovered them. Later, she testified that she did recover them later.

[99] In addition to my general concerns about R.J.’s reliability, her evidence with respect to S.F.’s use of her computer and phone on October 4 and 5 was confusing and somewhat inconsistent. I am not satisfied that this charge as particularized has been proven beyond a reasonable doubt and S.F. is found not guilty on Count 4.

(iii) Count 6

[100] When R.J. first made a statement to the police on October 7, 2020, she showed them text messages on her phone, which they photographed and which are reproduced in Exhibit 5. There is no date on the messages, although at the top they indicate that they were sent “today.” I infer from this that they were sent earlier on October 7, 2020.

[101] The messages reflect a lengthy exchange between R.J. and S.F., much of which consists of her repeatedly accusing S.F. of having her passwords and asking for them back. S.F. did not respond to the accusations. In R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at pp. 539-540, Martin J.A. stated:

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to have replied to them.

See also R. v. F.(J.), 2011 ONCA 220, 269 C.C.C. (3d) 258, at para. 46 (aff’d without reference to this point 2013 SCC 12, [2013] 1 S.C.R. 565). However, the doctrine of adoption by silence must be approached with caution and mere silence is not by itself sufficient to establish adoption: R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 58, 72

[102] In my view, the circumstances in this case lead me to conclude that S.F. could reasonably have been expected to reply to R.J.’s allegations that he took her passwords. [3] The allegations were made on numerous occasions during the exchange. While S.F. did not specifically respond to the allegations, he always sent a text message back to R.J., demonstrating that this was not a situation where he had simply chosen to ignore her. Furthermore, in text message exchanges at later dates where R.J. made similar allegations, he did respond by either denying that he had her passwords or professing not to know what she was talking about.

[103] In addition to this, S.F. implicitly acknowledged having her password during the exchange. For example, at one point he wrote, “I have a lot of work to do tonight still. Can you be patient with me with the emails.” This prompted the following exchange:

R.J.: You had time to change them but u don’t have time to change them back? [S.F.] just pls reset the passwords for me I want to go on my social media I wanna talk to my friends I wanna send emails It’s MYYY stuff You are literally affecting my life and my job Twice I’ve had to leave work early Like I swear I’m not gonna take the passwords and run away S.F.: I see I know where your priories [sic] lie R.J.: I’m sorry I wanna use my accounts LOL??? That doesn’t mean I don’t love u S.F.: I’m saying yes I need to send out reports I need a couple of hours at home Then we can look at your things Ok?!

[104] These text messages confirm R.J.’s evidence that S.F. had changed her passwords and prevented her from having access to her social media accounts and email. I am satisfied beyond a reasonable doubt that S.F. denied her access to her computer data. He is accordingly found guilty on Count 6.

(iv) Counts 7 to 10

[105] Counts 7 to 10 are based on R.J.’s evidence that she received various automated text messages from social media account providers. R.J. provided the police with a message entitled “New login alert” which she received in relation to her Twitter account on October 30, 2020. She testified that she believed this to be the result of S.F. attempting to log into her Twitter account. This is the basis for Count 7.

[106] R.J. also provided the police with several text messages she received containing Google verification codes, which she testified were sent out whenever someone attempted to change the password to the account. She believed that each time she received one, it was because S.F. had attempted to change her password. She received two of these messages on November 24, 2020, which presumably form the basis for Counts 8 and 9. She also received similar messages on November 25 and December 14, 2020.

[107] There were also two texts which included codes dated December 12, 2020 from SnapChat, which R.J. believed resulted from S.F attempting to access her account on that application. This forms the basis for Count 10.

[108] While R.J. believed that all of these text messages resulted from S.F. attempting to change her password, I am not satisfied that this is the only rational explanation for her receipt of these messages as R.J. testified that she had also changed her passwords at various times. While I am reasonably certain that S.F. interfered with R.J.’s access to her social media accounts on an ongoing basis, the Crown chose to particularize these counts to specific accounts on specific dates and must therefore prove the charges as particularized. It has not done so. S.F. is accordingly found not guilty on Counts 7 to 10.

G. Voyeurism (Count 11)

[109] Count 11 reads as follows:

[S.F.] stands further charged that he, on or about the 1st day of January in the year 2021, at the City of Toronto, in the Toronto Region, did, without lawful excuse, for a sexual purpose, make a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy by lifting up her shirt and taking a photograph of breasts, and thereby commit an offence under Section 162, subsection (1), clause (c) of the Criminal Code of Canada.

This count as drafted does not make out an offence. Making a visual recording of a person for a sexual purpose in circumstances that give rise to a reasonable expectation of privacy is not a crime. Doing so surreptitiously is. Surreptitiousness is an essential element of any offence committed contrary to s. 162 of the Criminal Code.

[110] The fact that the essential element of surreptitiousness is missing from the indictment is not fatal, as the relevant section number was identified: R. v. Coté, [1978] 1 S.C.R. 8, at pp. 12-13. The bigger problem for the Crown is that there was no evidence of surreptitiousness. R.J. testified that S.F. openly lifted her shirt and took a photograph of her breasts and that she was fully aware that he was doing so.

[111] The Crown submits that the element of surreptitiousness can be proven if it is established that the complainant did not consent to the recording. I do not agree. The term “surreptitious,” as it is used in s. 162, is to be given its ordinary meaning, that is, done “by stealth,” “clandestinely” or “in secret”: R. v. Trinchi, 2019 ONCA 356, 145 O.R. (3d) 721, at paras. 43-45; R. v. G.M., 2024 ONSC 5485, at para. 68. It is not synonymous with “non-consensual.”

[112] In any event, R.J. never said that she did not consent to S.F. taking the photograph, only that she did not consent to it later being shared with another person, which is the subject of a separate charge. S.F. is therefore found not guilty on Count 11.

H. Distribute Intimate Image (Count 12)

[113] This count is based on R.J.’s evidence that after S.F. took the photograph of her breasts, she received a text message from a friend, H., who told her that he had received a nude photograph of her from S.F. H. then forwarded the photograph to her and the caption “Cum Slut” had been added to it. R.J. did not preserve the photograph. H. did not testify.

[114] H.’s assertion that he had received the photograph from S.F. is inadmissible hearsay. However, if accepted, R.J.’s evidence that she received the photograph that S.F. had just taken from H. would support the inference that S.F. had sent it to H.

[115] As noted, H. did not testify. Only in very limited circumstances may a trier of fact draw an adverse inference from a party’s failure to call a witness as there may be valid but unknown reasons why the witness was not called: R. v. Millard, 2023 ONCA 426, 428 C.C.C. (3d) 338, at para. 78; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at paras. 37-38; R. v. Zehr (1980), 54 C.C.C. (2d) 65 (Ont. C.A.), at pp. 68-69. I am not prepared to draw such an inference in this case.

[116] While I draw no inference from the Crown’s failure to call H., this does not mean that the absence of H.’s evidence is not relevant. A reasonable doubt can arise not only from the evidence, but also from an absence of evidence, especially where the evidence the Crown does rely on suffers from certain frailties: R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 54. Such a reasonable doubt arises in this case because of my concerns about the reliability of R.J.’s evidence. S.F. is accordingly found not guilty on Count 12.

I. Fail to Comply With a Recognizance (Counts 1 to 3 on Indictment #2)

[117] S.F. is charged with three counts of failing to comply with a condition of his recognizance which required him to not contact or have direct or indirect communication with R.J. Count 1 relates to October 10, 2020, Count 2 relates to October 30, 2020 and Count 3 relates to the period between October 10, 2020 and January 12, 2021. There is no issue that S.F. was bound by a recognizance at the relevant time which required him not to contact or communicate with R.J.

[118] There are numerous text messages between R.J. and S.F. which I accept were sent between October 10, 2020 and January 12, 2021 and counsel for S.F. does not contest that he and R.J. had contact during this period. There are also phone records from this period which show that calls originating from S.F.’s phone number were made to R.J.’s phone number. S.F. is accordingly found guilty on Count 3.

[119] I do not understand why the Crown chose to lay Counts 1 and 2 as the conduct alleged in them is subsumed in Count 3. As Counts 1 and 2 are particularized to specific dates, the Crown must prove that there was a breach on those dates. While there are numerous text messages during this period, the dates on which most if not all of them were unknown. The telephone records reflect that there were two calls on October 10, 2020, however they were calls from R.J.’s phone to S.F.’s phone. The duration of both calls was 33 seconds. This is as consistent with R.J. leaving a voicemail message as it is with S.F. having contact with her. He is accordingly found not guilty on Count 1.

[120] The phone records do not reflect any calls on October 30, 2020 and it is not clear to me what evidence the Crown is relying on with respect to Count 2. S.F. is found not guilty on Count 2.

III. Disposition

[121] S.F. is found guilty on Count 6 on indictment CR-23-70000192 and Count 3 on indictment CR-23-70000191. He is found not guilty on all other counts.

Released: November 1, 2024 Justice P.A. Schreck

Footnotes

[1] This evidence of the complainant’s prior sexual activity was admitted following a pre-trial application pursuant to s. 276 of the Criminal Code that was heard by Akhtar J.: R. v. S.F., 2024 ONSC 3477.

[2] Some of these communications were tendered by the Crown and others by the defence. With respect to the latter, the communications were found not to be “records” within the meaning of s. 278.1 of the Criminal Code following a motion for directions brought before K. Campbell J.: R. v. S.F., unreported, March 20, 2023, Ont. S.C.J.

[3] I am only relying on R.J.’s assertions in the text messages that S.F. had her passwords in order to give context to his responses and not for the truth of their contents.