COURT FILE NO.: CRIM J(P) 23-290 DATE: 2024-11-18

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING M. Otim, for the Crown

• and -

R.E.G. M. Johal, for the Defendant

HEARD: September 9 and 10, 2024

RESTRICTION ON PUBLICATION

Pursuant to an order of this court, issued under s. 486.4(1) of the Criminal Code, no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

REASONS FOR JUDGMENT

MIRZA J.

INTRODUCTION

[1] R.E.G., a.k.a. R.G., is charged with assault on K.R. or about the 23rd day of October, 2022, in the City of Brampton, contrary to s. 266 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] R.G. is further charged with sexual assault on K.R. on or about the 20th day of October, 2022, in the City of Brampton, contrary to s. 271 of the Criminal Code.

[3] The judge alone trial was conducted on September 9 and 10, 2024. I reserved the judgment to November 18, 2024.

[4] It is an agreed fact that K.R. called the police on October 23, 2022, at 1:51 p.m.

SUMMARY OF THE EVIDENCE

[5] K.R. is the complainant. She was the only witness that testified at the trial.

[6] K.R. was in a romantic relationship with the accused in October 2022.

[7] She testified that she met the accused through a female friend.

[8] She said that she did not have a home at the time and “couch surfed.” She would bunk with R.G. at a basement apartment in Brampton that he was living at in the fall of 2022. They lived together for three months.

[9] In cross-examination, K.R. said she thought their relationship was a “friend with benefits” but accepted that she wanted more than a casual relationship.

[10] There were other people that lived in the basement. There were two rooms in the basement not too far apart. She described that there was another woman living on the other side of the basement. There were also people living upstairs. She did not think the other woman that lived in the basement was around at the time of the incident.

[11] K.R. was asked by the Crown how many incidents in total there were and she said one. K.R. was also asked if she had met with the accused prior to her testimony at trial and she said she did not meet him until today. This question was not entirely clear but covered whether she had met with the accused since the alleged incidents and prior to her testimony. She said she did not.

Sexual Assault

[12] K.R. stated that the sexual assault incident occurred in October 2022.

[13] She stated that she was laying in the bed beside the accused. He mentioned to her that he wanted to have sex.

[14] She told him no. However, the accused still proceeded and got on top of her. He forcefully removed her clothes and took her pants down half way.

[15] She said that her pants were basically taken off but not all the way. Initially she said her legs were not inside the pants. Then she said the legs were still in her pants.

[16] K.R. did not recall the kind of pants or top she was wearing. She did not remember if she was wearing underwear. She did not recall what R.G. was wearing.

[17] She stated that after removing her clothing, K.R. put his penis inside of her vagina. He was facing her. Her feet were positioned at his chest. No words were exchanged.

[18] She tried to push him off with her feet, but he was forceful, and she could not get him off.

[19] She said the sexual assault lasted about 15 minutes. It ended when he went to the washroom. He did not use a condom. She believes that he ejaculated.

[20] After R.G. returned and laid on the bed, she went to the washroom.

[21] K.R. was asked if they discussed anything else before the alleged incident. She said that R.G. told her he was in a relationship with a woman she had known from high school, but he had not gotten a divorce yet.

[22] She said that after the incident they did not discuss what happened.

[23] She said that while it happened, she was afraid he would try to kick her out of his home.

[24] She stated the sexual assault incident happened about an hour before giving the statement to the police on October 23, 2022. This timeline would be revisited later.

[25] K.R. later explained in cross-examination, that R.G. had contact with her after their breakup and they resumed contact. She said during that time he told her that he was sorry. In re-examination, she said the apology was for the sexual assault.

Assault

[26] K.R. was asked by the Crown again if there was any other incident between the two of them. She said just petty arguments. She did not describe being a victim of an assault.

[27] K.R. was asked by the Crown if she spoke to the police about another incident and she maintained - just the sexual assault. She said she had an opportunity to review her statement to the police during a recent preparation meeting online over zoom.

[28] After K.R. was permitted to review her statement of October 23, 2022 to refresh her memory, and the Crown brought a section 9(2) application, K.R. then explained that an assault that occurred earlier the same day that she spoke to the police.

[29] She stated that she was expecting to see her children at an access centre in Newmarket on October 23, 2022. She described that she had three children at the time, one in foster care and two with her parents. That day there was no driver to pick her up and she was very disappointed that she did not get to see the children.

[30] The accused did not come home the day prior and was not there for her to support her seeing her children. K.R. believed that he was with another woman and was upset with him.

[31] When R.G. came home, they had an argument about his absence, infidelity, and whether he had divorced his wife.

[32] During their argument, she had been using her phone to make calls and CAS calls about the children. She stated that R.G. grabbed her hand to stop her from making the call. She said that he grabbed her wrist with one hand with some force. He hung onto to her wrist for around 30 seconds.

[33] She told him to let go. He released her. Then she called the police. After reporting the incident she no longer lived with the accused and went to live at a shelter.

[34] She stated that there were red marks on her wrist as a result of the assault.

[35] She said after speaking with the police she went to the hospital.

[36] In cross-examination, she said she waited the whole day at the hospital and could not remain so she went back to the shelter as she did not want to lose her placement. As a result, she was not examined at the hospital in Mississauga.

[37] When questioned about the timeline again, she stated that she did not go to the hospital on the same day that she spoke to the police, it was possibly the day after or the week after.

[38] In re-examination, she stated that the shelter had only let her out for a limited time, so she had to leave the hospital and return to the shelter. She went to a shelter because she only had a few friends to go to, and was not on good terms with her family.

[39] In cross-examination, she agreed she was upset with R.G. before and when she called the police. She said she was upset because she was unable to see her children due to the transportation issues, not because of the incident with the accused. However, she agreed that the accused did not come home on time. She expected him to come home when he finished work. She did not believe him when he told her he was at his “boys’ place,” meaning with his friends. She believed he was spending time with another woman. This made her very upset. He also led her to believe he was getting a divorce but she saw no divorce papers.

[40] She agreed that when she called 911, she was upset about him not coming home. She agreed that she said to him that if he played with her heart there would be consequences. When asked if the consequences were getting him arrested, she said not exactly those consequences without explaining further.

[41] In re-examination, she said she was upset but still calm when she called 911. She called the police because she felt the accused had abused her, was trying to manipulate her and took what happened for a joke.

[42] During the 911 call, she agreed that she did not report the sexual assault. She went to the police station later that day and reported both an assault and a sexual assault.

[43] She told the police the sexual assault happened on Thursday, a few days prior. She agreed she told the court earlier that the sexual assault happened an hour before she went to the police. When confronted with that inconsistency, she said she mixed up the dates as it was a long time ago. She repeated she did not recall the exact dates in re-examination.

[44] She was asked if she told the police the sexual assault happened around 9:30 to 10 a.m., whereas today she said it happened an hour before she gave the statement. Later, she said the assault took place the same day as the sexual assault.

POST OFFENCE RELATIONSHIP

[45] K.R. stated that after reporting the incident to police she moved out.

[46] She was cross-examined about the following post relationship contact between her and the accused. She did not explain this part of the relationship in examination in chief. [^1]

[47] In March 2023, K.R. was working at a restaurant as a cashier. She said that she bumped into the accused at the restaurant she worked at, when he was doing food delivery. They spoke and she gave him her phone number, written on the back of a restaurant invoice.

[48] She said he wanted to get back into her “good graces.” He talked her into giving her number.

[49] Later that day he texted her and asked if she needed a ride home. She accepted the offer. She said that he drove her close to her apartment. In re-examination, she said in March she was still living in a shelter.

[50] She trusted him enough to take a ride home because in her mind, it could only go so far.

[51] She agreed that months later, she contacted the accused when she was pregnant and needed help. She received information that the father of her child had been murdered.

[52] She agreed that she provided R.G. with her email for an e-transfer for money.

[53] She agreed that she texted the accused to buy her a Coach brand purse. She texted him the online link. She said that was because he offered to buy it for her.

[54] She agreed that on June 30, 2023 R.G. sent her $50 by Interac e-transfer.

[55] A few days later she asked him to buy her a Michael Kors brand purse. She said he told her to send him the link.

[56] K.R. confirmed that on July 2 she spoke to the accused for 60 minutes.

[57] She agreed that on July 4, she asked R.G. for money. She sent him messages stating, “can you please send me money.” She said it was because he offered.

[58] She agreed that she also asked him to buy baby clothes. She said he told her that he had a contact that would permit him to get her clothes at a cheaper amount.

[59] She agreed she sent him requests for items. Initially, she said it was a link for a purse, not clothes.

[60] However, she agreed she sent him a link for a Fendi brand jump suit. She said he told her he can get designer clothes for her daughter.

[61] A few days later she sent him a text asking for $30. She said it was the same day.

[62] She agreed that she asked R.G. to buy her a specific expensive stroller. She said that he agreed to pay for half.

[63] She provided her email to facilitate the e-transfer from him.

[64] She denied she apologized to the accused for contacting the police. She said she told him at the restaurant whatever happened, let it stay in the past. She wanted to drop everything and didn’t want to deal with it anymore. She stated that he was approaching her at work. She denied she wanted to drop the charges.

[65] She said he apologized to her, and said she guesses she apologized to him, but not for contacting the police. Eventually, she said she apologized, told him whatever happened she would leave it in the past and she was not going to worry about it anymore and move on with her life.

[66] In re-examination, she said he apologized for what happened, but he didn’t want her to talk about it. She said that’s when he was offering financial assistance and stuff. She believes that his apology was about the sexual assault, describing it as the assault on the bed and pushing him off.

[67] She added that he wanted her to help him out in court and say that she has a mental health issue and wanted to blame it on her issues, which is not true.

[68] She agreed in the summer of 2023 she sent him many messages for money. She said he told her she could ask when she needed money. She didn’t know he wasn’t allowed to speak with her and he did not mention that. Later, when the police came to give her a subpoena for this trial at her apartment, they told her he was not supposed to speak with her.

[69] In re-examination, she said that their contact continued for months.

[70] She believed he wanted her to move back with him.

[71] Eventually, she did not remember when she ended their contact and told him she couldn’t talk to him anymore. She had moved on in life.

THE LAW

Presumption of Innocence

[72] The accused is presumed innocent. The presumption of innocence is of fundamental importance in the criminal justice system as it places the burden of proof squarely on the Crown and protects against wrongful conviction.

[73] The presumption of innocence stays with the accused throughout the trial and is only displaced if the court is satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge. The accused does not have an obligation to prove anything or to testify.

Proof Beyond a Reasonable Doubt

[74] The concept of proof beyond a reasonable doubt is also of fundamental importance in the criminal justice system. Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Instead, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[75] While probable or likely guilt is not enough, proof to a level of absolute certainty is not required, as that standard is impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[76] If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence or lack of evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically and in light of human experience and common sense.

[77] When assessing circumstantial evidence, I must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence and not on speculation: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 36-37.

[78] Ultimately, in order to convict an accused person of an offence, I must be sure that the Defendant committed the offence. If I am not sure, I must acquit.

[79] When assessing credibility, no formula applies in determining whether a witness is telling the truth. Instead, the witness’s evidence is considered by using an analytical approach that is not tainted by myth, stereotype, sympathy, or assumption.

[80] Many factors may be relevant in determining credibility. Some of the key factors include whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to lie, or give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, whether the explanations given for any inconsistencies are accepted, and whether the inconsistencies suggest that the witness is lying.

[81] It is open to a trier of fact to place no weight on the evidence of a witness if it is found that their testimony is implausible, inconsistent, or unreliable for any reasonable reason: R. v. Varghese, 2024 ONCA 555, 439 C.C.C. (3d) 402, at para. 55.

[82] Arriving at a verdict in this case requires that I determine issues of credibility and reliability. In other words, I have to decide whether the witness told the truth and if so, whether her evidence can be relied upon as accurate.

[83] The issue is whether the Crown has proven the case against the accused, on each charge, beyond a reasonable doubt. In making this determination I can accept some, none, or all of a witness’s evidence. I may find that even though I prefer the evidence of a Crown witness on some points over the evidence of or supporting the accused, I am left with a reasonable doubt about guilt.

[84] As well, after careful consideration of all the evidence, I may not know who to believe, in which case, I am also left with reasonable doubt.

[85] The accused has no obligation to establish that the complainant has a motive to fabricate or lie or that they were biased. A complainant may accuse a person of committing a crime for reasons that may never be known, or for no reason at all.

[86] Lack of embellishment may be considered in response to suggestions the complainant has a motive to lie. However, it is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment: R. v. Alisaleh, 2020 ONCA 597, [2020] O.J. No. 4004, at para. 16.

[87] It is wrong to reason that because an allegation was not exaggerated or could have been worse, it is more likely to be true. R. v. Kiss, 2018 ONCA 184, [2018] O.J. No. 1011, at para. 52, citing R. v. G. (G.) (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), [1997] O.J. No. 1501, at p. 10; R. v. L.L., 2014 ONCA 892, [2014] O.J. No. 5941, at para. 2; and R. v. G. (R.), 2008 ONCA 829, [2008] O.J. No. 4925, at para. 20.

[88] As Paciocco J.A. stated in Kiss at para. 52, demeanour evidence must be considered carefully as emotion or lack thereof is not a proxy for truthfulness or dishonesty.

[89] It is incorrect to reason that because the complainant has made allegations, or disrupted their life by making a complaint, or pursued the complaint, the complaint is true. It is dangerous for a trial judge to find relevance in the fact that a complainant has exposed themself to the unpleasant rigours of a criminal trial. This can reverse the onus of proof. R. v. A. (G.R.), [1994] O.J. No. 2930 (Ont. C.A.), 35 C.R. (4th) 340, at para. 3; R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 88; R. v. S. (W.) (1994), 90 C.C.C. (3d) 242 (Ont. C.A.), 18 O.R. (3d) 509; R. v. K. (V.) (1991), 68 C.C.C. (3d) 18 (B.C.C.A.), 4 C.R. (4th) 338, at p. 35.

[90] Stereotypical assumptions discussed further below about the lack of credibility of complainants in sexual cases are totally inappropriate. It is also essential that the court does not rely on pernicious assumptions about the believability of complainants that have the effect of shifting the burden of proof to those accused of such crimes.

Myths and Stereotypes in Intimate Partner and Sexual Assault Cases

[91] There is no fixed rule on who will experience sexual violence or how they will react to it: R. v. Hoggard, 2024 ONCA 613, [2024] O.J. No. 3683, at para. 20; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 45; Kiss, at para. 101, citing R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

[92] There is no typical victim or typical assailant or typical situation or typical reaction. There are variations in responses, and they can be subject to numerous variables. This is because sexual violence can take place in almost any circumstance. It can happen between all different kinds of people, and in different types of relationships. Victims will not all look or act or respond the same way.

[93] A persistent myth is that a victim of sexual assault should or will necessarily resist, fight, or attempt to get away from their assailant: Varghese, at para. 35.

[94] Courts must be careful not to rely on “common sense” that is based on stereotypes. While not all assumptions about ordinary human behaviour rest on impermissible stereotypes, caution must be exercised lest the “common sense approach” that purports to rely on common sense assumptions “mask[s] reliance on stereotypical assumptions”: R. v. Donnelly, 2023 ONCA 243, [2023] O.J. No. 1515, at para. 40; R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at para. 19; R. v. A.R.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, at paras. 8-9, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218.

[95] Reliance on discredited stereotypes and prejudicial reasoning in assessing a complainant’s credibility is an error of law: R. v. Kruk, 2024 SCC 7, [2024] S.C.J. No. 7, at paras. 29, 44 and 50.

[96] Sexual violence is rarely witnessed first hand by another person. Domestic violence may not be witnessed by another person. These crimes often are not. Corroboration is not required.

[97] When there is arguably corroboration, to be given confirmatory weight, evidence need only be more consistent with the complainant’s version of events than with another version: R. v. Varghese, 2024 ONCA 555, 439 C.C.C. (3d) 402, at para. 49; R. v T.W.S., 2018 BCCA 119, at para. 40; R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568. Deciding whether evidence confirms or corroborates a complainant’s allegations “is part of the broader assessment of the complainant’s credibility and reliability that trial judges must make based on the entirety of the evidence”: R. v. G.H., 2023 ONCA 89, at para. 20, citing Primmer at paras. 31-33, 39; R. v. S.R., 2023 ONCA 671, at para. 7.

[98] Someone who was the victim of sexual assault or domestic violence may immediately stop having contact with their abuser, whereas others may continue having contact with the person abusing them. Or they may resume contact after a period of separation. Some victims might immediately complain about the abuse, while some will delay disclosing it, and still others will never disclose it. The reality is that there is no fixed rule on how people who are the victims of sexual or domestic abuse will behave while subject to such abuse or in its aftermath.

[99] In assessing the credibility of a complainant, their continued contact with the accused or the timing of the complaint are simply factors to consider in all the circumstances of a particular case.

[100] A delay in disclosure, standing alone, will not give rise to an adverse inference against the complainant's credibility.

[101] A gap from the time of the incident to the date it is reported does not detract from reliability. It does not necessarily mean that the person has misconceived the events. Dates and times are not necessarily determinative. The presence of inconsistencies about peripheral matters (e.g., time and place) should be considered in context and in relation to the totality of circumstances, including the age or maturity of the complainant at the time of the event(s): R. v. W. (R.)., 1992 SCC 56, [1992] 2 S.C.R. 122, at p. 134.

Motive to Lie

[102] The accused has no obligation to identify a potential motive to accuse him falsely. To require him to do so would be contrary to the presumption of innocence and reverse the burden to prove his guilt beyond a reasonable doubt, which falls squarely on the Crown. At trial, the chief task is whether the Crown has met its burden beyond a reasonable doubt.

[103] Not only is there no burden on an accused to prove a motive to fabricate, but there is also no burden on an accused to disprove that the complainant had no motive to fabricate. It does not follow that the witness must be telling the truth because there is no apparent motive to lie. It is dangerous and impermissible to move from an apparent lack of a motive to lie to the conclusion that the complainant must be telling the truth. In general, it is improper to ask why would the complainant lie about this subject, implying they must be telling the truth.

[104] In R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at paras. 4-5, the Supreme Court noted that when the accused suggests that the complainant has a motive to lie, lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52.

[105] When it is argued that a witness has a motive to lie, then absence of evidence of a motive to lie, or the existence of evidence disproving a particular motive to lie, is a factor that suggests a witness may be more truthful because they do not have a reason to lie. When considering this factor, trial judges must be alive to two risks. First, the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist). The latter requires evidence and is therefore a stronger indication of credibility. Neither is conclusive in a credibility analysis. Second, the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations: R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33.

POSITIONS

[106] The Crown submits that the testimony of K.R. proves the elements of both offences beyond a reasonable doubt. She was credible and reliable. Her inconsistencies were not material. There is no motive to fabricate. She made a criminal complaint, even though she experienced fallout to her personal detriment as she had to live in a shelter. Also, K.R. has suffered due to making the complaint. For example, she came to court at personal inconvenience.

[107] The Defence submits that the Crown has not met its onus to prove the offences beyond a reasonable doubt.

[108] K.R.’s evidence was inconsistent on material points.

[109] Although the accused has no onus to prove a motive to fabricate, her testimony raises that she was motivated to lie out of anger with the accused due to perceived infidelity and failure to get a divorce. This was in the context of her belief that they were in a romantic committed relationship.

ANALYSIS

[110] The focus of a criminal trial is whether based on the totality of the evidence, the Crown has proved the charges beyond a reasonable doubt.

[111] In that assessment of the totality of the evidence, I must consider whether there is any evidence that raises a reasonable doubt. Similarly, on the basis of the evidence which I do accept, I must determine if I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[112] This is a one witness trial. Corroboration is not required to prove the charges.

[113] The fact that this is a single witness Crown case is not unusual in cases of alleged intimate partner violence.

[114] The summary of K.R.’s testimony above, demonstrates that her testimony was provided in a fragmented manner. While respectful that testifying in court is a difficult and uncomfortable experience, in my view, this occurred because K.R. chose to testify in this manner and respond to the questions this way. She was deliberately vague and omitted key information or full explanations in response to questions in examination in chief or cross-examination, and then explained more in re-examination. As noted above, the Crown relied on some impermissible oath bolstering arguments about the complainant pursuing a complaint at personal detriment, that were later abandoned when challenged during submissions.

[115] K.R. testified about a sexual assault that occurred in October 2022.

[116] She did not initially testify about the occurrence of an assault on or about October 23, 2022. After reviewing her video-statement transcript she then described an alleged assault.

[117] I will explain this change further later in these reasons. For now, I will proceed on the basis that she ultimately alleged two incidents as framed in the indictment.

[118] K.R.’s explanation about the specific allegations was not directly challenged. It was not contradicted by the accused or other evidence. However, her credibility in relation to the allegations was challenged on the basis of inconsistencies, a motive to lie, and her lack of honesty about her conduct during the relationship with the accused after the alleged incidents.

[119] When there is evidence of the existence of a motive to lie, this circumstance is a relevant factor when evaluating if the witness is credible and reliable and whether the Crown has proved the charges beyond a reasonable doubt.

[120] A motive to lie may reasonably cause the trier of fact to be concerned that the witness’s evidence should not be relied on in part or in whole. The presence of a motive to fabricate does not necessarily mean that a witness is not credible or that the complaint is false. A motive to lie may be present without necessarily tainting the subsequent complaint. It depends on what explanation is (or is not) provided, and the facts and evidence I ultimately accept.

[121] On this record, K.R. clearly had a motive to lie in her complaint against the accused. I reject the Crown submission that she did not have a motive to lie.

[122] The evidence is clear that proximate to the criminal complaint against the accused, K.R. was in a romantic relationship with the accused. The night before he did not come home. K.R. was upset about this conduct because she lost an opportunity to see her children, she thought the accused was cheating on her, and she was mad that he was still married.

[123] It is in that context during an argument, that she agreed in cross-examination that she told him - if you play with my heart there will be consequences. As part of the context to their relationship, she believed that they were supposed to be together as a committed couple and that he had not taken steps to obtain a divorce as he had purported.

[124] I find that K.R’s comment was a warning that she was going to punish the accused for not coming home, for causing her hardship, and for not being faithful. It is at this key time that the criminal complaint was brought.

[125] In my view, K.R.’s comment that if you play with my heart there will be consequences is akin to a threat to the accused that he would face real negative consequences for his failure to come home, for cheating, and for not meeting her relationship expectations.

[126] I recognize that K.R.’s expectations of her partner’s fidelity are reasonable. I have factored that she claims she called the police at that time because he abused her. I recognize that in some cases, the abuse may be proven even with or independent of the presence of a motive to lie. This assessment depends on a number of factors including the strength of the Crown’s case, the nature or potency of the motive, the credibility of the witness and their explanation.

[127] In this case, I find that K.R.’s used specific choice of language to R.G. that night, once she believed he was unfaithful and not there for him at a critical time where she needed him, establishes distinct animus instigating the complaint.

[128] Further, in the total circumstances, I infer that she was not credible in her evidence. I find that the total evidence demonstrates that that the "consequence" she was referring to was to manufacture a criminal complaint to cause the accused hardship or harm as payback for cheating on her and letting her down. This finding undermines my confidence in her evidence as a basis to convict the accused.

[129] I find that based on the totality of the evidence, K.R.’s complaint has significant credibility problems that leave me in a state of doubt such that I cannot be sure that the incidents as alleged occurred.

[130] I do not accept K.R.’s explanation when confronted about this contentious point. Although K.R. acknowledged that she made the threat shortly before making the criminal complaint, I found that she was unclear and evasive in parts of her explanation of why she made the threat. For example, when it was suggested to her in cross-examination that by “consequences” she meant contacting police and getting the accused arrested, she said “not exactly those consequences.” She did not explain or clarify further. In my view, this response was deliberately evasive during cross-examination.

[131] In re-examination, K.R. said that she called the police because she felt he had abused her and was trying to manipulate her. She also said he took it for a joke.

[132] In my view, the totality of her response demonstrated she had animus and set out to make the accused suffer. In response to the defence theory fairly put to her that correlated her anger with his perceived infidelity with her making a criminal complaint, her explanation was not a clear or credible. It certainly did not negate that she had a motive to lie about the allegations and acted on that intention to deliberately cause him harm.

[133] Also, when asked in cross-examination if the accused not coming home had sparked an argument, she said they had a “discussion.” Earlier, she said she was upset with the accused when she called the police. In re-examination, she said that when she called the police, she was upset but calm. In my view, she was deliberately but not credibly downplaying the extent of her anger at the relevant time.

[134] I am left in a state of reasonable doubt that the accused committed the sexual assault offence alleged based on this complaint which, in my view, was motivated by animus against the accused for infidelity coupled with a specific threat for violating their relationship. In other words, it was not that she was just upset and decided to advance a truthful complaint that she previously held off on. In this case, she uttered the threat to take harmful action against the accused and ultimately did so. She was not credible in her explanation when confronted with this circumstance.

[135] I am also concerned that she displayed anger with the accused at the end of her testimony on September 9 that supports that the animus continues into the trial. While under cross-examination, she openly expressed frustration to the court about the accused, staring at R.G., as she explained her perception that he had helped the police with her address to issue a subpoena. She said that she did not want to attend again trial in-person for the next day of testimony. This was explained to be due to her personal and childcare commitments. The import of her comments is that she demonstrated a clear animus towards the accused for having inconvenienced her to participate in a trial regarding a complaint that she made.

[136] There are also concerning inconsistencies that indicate the complaint has credibility and reliability issues that contribute to reasonable doubt.

[137] With respect to the assault count, K.R. called the police on October 23, 2022 at 1:51 p.m. after a dispute with the accused. She alleged an assault in her initial call.

[138] At the police station while being interviewed she said she had been assaulted on October 23, 2022 and sexually assaulted on October 20, 2022. To be clear, that change or addition of another allegation in this case is not on its own abnormal or concerning. A person may initially seek police assistance without providing full particulars during a 911 call as their focus may be on getting help first and not providing details, depending on the circumstances and inquiries.

[139] However, at trial in examination in chief, K.R. was asked specifically to explain all of her criminal complaints. She testified about the sexual assault.

[140] The Crown then asked her more than once if there was any other incidents and she said no, repeatedly stating that otherwise, she and the accused had petty arguments. She did not mention or explain having endured an assault. She did not mention having red marks on her wrist as a result of the assault. This is despite the assault being the first allegation to have the police attend, and then explained first in her video-statement.

[141] She acknowledged at trial that she had reviewed her statement recently during a preparation meeting with the Crown’s office. Still, she maintained that there were only petty arguments, and no other alleged incident of abuse.

[142] The Crown brought an application to cross-examine their own witness, K.R. on the apparent inconsistency in relation to whether an assault occurred, under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Notably, this was not brought as a K.G.B. application: see R. v. K. G.B., 1993 SCC 116, [1993] 1 SCR 740, 148 N.R. 241.

[143] Section 9(2) of the Canada Evidence Act authorizes a limited exception to the general rule about the manner in which a party may elicit evidence from a witness the party has called.

[144] To invoke s. 9(2), the party calling the witness must demonstrate that the witness made a statement, at another time and in a particular form, inconsistent with their testimony in the proceeding. The Court of Appeal for Ontario has decided that whether to grant the application is discretionary. The judge should determine whether to grant leave to cross-examine by asking whether the ends of justice are best attained by permitting it: R. v. Carpenter (No. 2) (1982), 1 C.C.C. (3d) 149 (Ont. C.A.), 142 D.L.R. (3d) 237, at p. 155.

[145] The Crown’s s. 9(2) application was granted after it was proven K.R. made the statement on video, accurately reduced to writing in a transcript, and that there was a contradiction by omission in her trial testimony compared to the statement on the topic of whether there was another incident, specifically an assault where, in summary, her hands or wrist were grabbed.

[146] For that application, I found that her statement was voluntary and reliable. The Defence was able to cross-examine her on the circumstances of the alleged assault, and I was satisfied that she was clearly communicating and voluntarily participating when interviewed. I permitted the Crown to cross-examine on excerpts of the statement, where the officer was not leading her or she was voluntarily expressing what happened, including correcting the officer’s recap.

[147] Prior to the Crown choosing to embark on this procedure, the Crown understood that the cross-examination was admissible for the purposes of credibility that K.R. had said something different on a prior occasion. In the absence of a successful K.G.B. application, the statement was not admissible for the truth of its contents. The prior statement is available as a factor for consideration in assessing the weight to be assigned to the trial testimony. The prior statement, even if adopted at trial, has no intrinsic evidentiary value and is not evidence on the trial: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 53-54; and R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56; R. v. Taylor, 2015 ONCA 448 at para. 50.

[148] After reviewing her statement and being questioned on the 9(2) application, when that procedure concluded, K.R. then went on to testify about the assault. This formed part of her evidence in chief. However, it was clearly the result of having re-read her statement on this point, and the leading questions by the Crown during the voir dire. In her trial testimony, K.R. did not explain adequately why she did not mention an assault or marks suffered, prior to the s. 9(2) application despite having reviewed her statement recently. This demonstrates the limited utility in this particular case of the Crown proceeding with their own witness in this manner.

[149] To be frank, K.R. fundamentally changing her testimony to conform with what she told the police earlier pursuant to leading questions did not strengthen her credibility. To the contrary, I do not find that her subsequent testimony that was inconsistent, was part of an independent recollection of an assault. As noted above, she was asked clearly prior to the s. 9(2) application about any other incident and said there was none.

[150] When the Crown indicated that they intended to bring the s. 9(2) application, I asked the Crown to explain the purpose, as the application was intended to adduce a prior inconsistency relevant to credibility of their own witness. The Crown confirmed that it was for the purpose of credibility only.

[151] K.R. did not testify about an assault incident up to that point even though it instigated the call to the police and it is the first incident she describes in her video statement. The officer also re-summarized the alleged assault to her and she added details. In these circumstances, her total evidence at trial leaves me concerned about her credibility and reliability sufficient to result in a reasonable doubt.

[152] I recognize that the passage of time can result in faded memory, but this is a case with two incidents alleged only over a short period of time, where the assault is the first revelation in the complaint. On these facts, the omission during her testimony is troubling and detracts from K.R.’s credibility on this count.

[153] Overall, this is not a minor inconsistency. I considered that she initially said there was no other incident except for some petty arguments. It is arguable that with the passage of time since the incident, she grouped the assault into that category of minor disputes, but to be clear she did not provide that explanation. I must be careful about not speculating why she chose not to explain the assault at all when asked. Based on her change in evidence, I am concerned about her credibility and reliability due to her lack of recollection and inadequate explanation for the change.

[154] There were also some other material inconsistencies. In her testimony, she said the assault occurred inside the home. In her statement to the police she said that it happened outside.

[155] In some cases, standing alone, this may not raise a reasonable doubt. In this case, it is part of the totality of the problems with the complainant’s evidence.

[156] Based on the above reasons, I have a reasonable doubt that the accused committed the offences alleged.

[157] I find the accused not guilty of both charges.

POST OFFENCE CONTACT

[158] There is another issue that I will review, as it was part of the evidence and defence submissions. I will deal with this segment of the analysis separately as it is not determinative of whether the burden of proof is met. However, for reasons I will explain this area adds to the reasonable doubt.

[159] For the purposes of credibility, the Defence relied on K.R.’s re-connection with the accused in March to October 2023 wherein she communicated repeated requests through text or SMS messages for financial assistance and material items. She also asked for and accepted money from the accused.

[160] I recognize that the court may have only been provided a segment of the total communications. The Crown did not seek additional time to call any reply evidence about their communications.

[161] Defence counsel clearly indicated that they did not rely on this post incident relationship and communication evidence to advance any myths about how victims should respond to abusive relationships. Rather they submitted that it was advanced to demonstrate that K.R.’s was not truthful and could not be believed about how she described the full relationship, her own conduct, and the actions of the accused. Her material omissions undermined her credibility.

[162] Myths and stereotypes have no place in a criminal trial. R v. Kruk, 2024 SCC 7 at para. 31. I acknowledge that intimate partner relationships are complicated. The court must be careful not to rely on prohibited reasoning. A person is not less worthy of belief because of how they react or respond to an abusive relationship, or when they report abuse. For example, some people remain in abusive relationships or resume relationships with an abusive partner for a variety of complex reasons. There are no presumptions about what is appropriate or reasonable in that context. It is risky to descend into “common sense” inferences in that dynamic and often emotional human context. A victim may not advance a criminal complaint until later for valid reasons. I also recognize that an abused person can return to the relationship with their abuser for numerous reasons that should not adversely impact their credibility. This may include but are not limited to emotional or financial incentives by the abuser, including efforts to maintain financial dependency or take advantage of vulnerability. Alternatively, it is plausible that they resumed a relationship to advance their respective needs or interests, which can include but not be limited to emotional and financial. Further, it may be that their feelings about one another were conflicted and they had anger but still cared about each other. [^2] The court must not only avoid stereotypes it must also keep an open mind about their existence.

[163] Overall, I do not rely on or draw any negative inference against K.R. from the fact that she resumed a relationship with the accused or that she sought or accepted his financial assistance. There may be reasonable explanations for why they decided to spend time together again, after time apart.

[164] That said, cross-examination of K.R. raised relevant credibility concerns about inconsistencies, omissions, and her mischaracterization of the entire circumstances of the relationship. This evidence is permissible to consider in the reasonable doubt analysis.

[165] K.R. was not honest about the actual circumstances between her and the accused that contributed to the complaint and then the resumption of their contact.

[166] In cross-examination it became clear, for the first time in her testimony, that K.R. resumed and maintained contact with the accused for months, starting around the spring of 2023. This was contrary to prior testimony which left the impression the relationship ended after the incidents and there was not subsequent contact.

[167] During this time in the Spring to summer, they met at her work, re-connected, and then spent time together, wherein she sent him messages seeking material items and financial support. In the texts, she initiated requests for luxury and non-essential items.

[168] Of import to the credibility analysis, I am concerned that K.R. did not mention this aspect of their relationship at all in examination in chief, despite being asked about the subject. She omitted these details despite being asked by the Crown about the background and nature of her relationship with the accused, the scope of her contact with him, and her knowledge of him.

[169] K.R. was asked at the outset of the trial by the Crown if she had met the accused prior to her testimony (which logically included after the incidents) and she said did not meet him until today. She did not explain this further in examination in chief. That evidence was not the full picture or accurate. In my view, it was a deliberate decision to conceal this reality.

[170] When the truth came out in cross-examination about their post alleged offence relationship, she blamed the accused largely for all of it, despite contrary evidence of her consistently reaching out to him for money, clothing, purses, and having long conversations. I do not accept that it was as simple as the accused offered money or gifts and she accepted his help. The evidence supports that it was a mutual re-connection and relationship. For example, even if he offered a ride or financial support, she maintained consistent contact and accepted.

[171] I am also concerned that other key parts of her explanation about the totality of her relationship with the accused only came out in re-examination, after specific questions asking to explain the full circumstances during examination in chief.

[172] This type of selective disclosure and adding to the description is troubling, particularly when the witness is asked earlier and provides a different or brief answer. That approach is misleading. For example, K.R. was asked by the Crown in examination in chief at another point when the relationship ended, and she said she did not know. That turned out not to be true. She did know and chose not to tell the total circumstances until later in her testimony.

[173] K.R. also did not mention in examination in chief that she received an apology or was asked by the accused not to continue the case. These are significant material omissions, followed by a change with improper amplification.

[174] I do not accept K.R.’s subsequent detailed claim that came out only in re-examination that the accused apologized to her for sexually assaulting her. This is because in examination in chief, and cross-examination, her recollection was different. In examination in chief, she was asked if she ever discussed with the accused what happened and said she did not. As noted earlier, she also stated that the first day of trial was when she saw the accused again, implying it was the first time since the police complaint. In cross-examination, she said after they reconnected, he apologized but she did not explain the nature of the apology further or with clarity.

[175] It was in re-examination that her memory became apparently clear about the post incident relationship resumption. I recognize and understand that some of her explanations may have come out later because the circumstances were put to her in cross-examination. However, that is not a full or convincing explanation for the changes or addition of details. The changing responses and omissions are troubling since it is apparent that she did not forget about significant aspects as she had earlier stated.

[176] Although in re-examination she expressed that after they resumed a relationship it was her belief that he apologized for sexually assaulting her, I find that this was a late addition that was not credible. Factoring the incremental way she explained it, initially as an apology only, without a clear explanation, and not stated by accused with respect to any offence, it is difficult to attach any real weight to her subjective interpretation that she added in re-examination. Since they had broken up and then resumed, I am concerned that the apology (as she initially explained it), could have plausibly been in relation to the accused’s infidelity or letting her down by not getting a divorce and being there for her. Those were significant issues in their relationship.

[177] For similar reasons about her fragmented evidence and late additions in re-examination, while still considering the total evidence, I also do not accept K.R.’s evidence that the accused told her that he wanted her to help him out in court by blaming her complaint on a mental health issue.

[178] Overall, K.R.’s evidence lacked candour. This further causes me to be concerned about the truthfulness and accuracy of her evidence.

CONCLUSION

[179] I find Mr. Graham not guilty of both charges.

Mirza J. Released: November 18, 2024

[^1]: The Crown and Defence agreed that text messages put to K.R. were admissible and no pre or mid trial applications were required. [^2]: On a related but different point, to be clear, at this trial no evidence was led about the accused’s release conditions that I can find he was violating non-contact orders, even though it is common that non-contact conditions are imposed in this context.