WARNING
The Court hearing this matter directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
COURT FILE NO.: 21-93 DATE: 2024/02/21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – K. G.
Counsel: M. Nassar, for the Crown I. Paul, for the Defendant
Heard: September 11-15, 2023 Justice L. Bramwell
Introduction
1K.G. and M.H. lived together in a common-law relationship from 2007-2017.
2K.G. is charged with three counts of sexual assault against M.H. M.H. alleges:
i. that on numerous occasions while they lived together , she awoke from a deep, medication-induced sleep to find K.G. having vaginal intercourse with her without her consent;
ii. that on numerous occasions while they lived together, K.G. forced M.H.’s head down onto his crotch area and forced her to perform fellatio on him, without her consent;
iii. that on one occasion while they lived together, M.H. and K.G. were having consensual vaginal intercourse when he suddenly yanked her by the ankles to the end of the bed, flipped her over onto her stomach and penetrated her anus with his penis, without her consent; and
iv. that on one occasion after they separated, K.G. returned to the home to borrow a blanket and before leaving, grabbed M.H.’s crotch and breasts, without her consent.
3K.G. testified and denied ever having intercourse with M.H. while she was sleeping or forcing her to perform fellatio on him. K.G. said that every instance of intercourse with M.H. was consensual as was every instance of her performing fellatio on him.
4K.G. agreed that there was an incident in which his penis penetrated M.H.’s anus during consensual vaginal intercourse but it was very brief and accidental. He also agreed that he went to M.H.’s home to get a blanket after they broke up but that he did not grope or grab her. Instead, he says, they hugged each other, consensually, before he left.
5The Crown brought a successful mid-trial application to have certain evidence of other discreditable conduct on the part of K.G. admitted. This evidence was found in the evidence of M.H. and E.G.G. who is the daughter of K.G..
6The Crown brought an application, during submissions, to have the evidence of M.H. on each count admitted as similar fact evidence in support of the other counts.
7For the reasons that follow, the Crown’s similar fact application is dismissed. Further, as I will explain, while I do not necessarily accept as accurate the evidence of K.G., I am left unsure whether his evidence is accurate and so he must be acquitted because I cannot reject it entirely. As I will also explain, even if I rejected and was not left with a doubt by K.G.’s evidence, I would not find that the Crown has proven its case beyond a reasonable doubt due to significant credibility and reliability concerns with the evidence of the complainant M.H.
Legal Framework
8It is important to understand, up front, the legal principles operating in this case in order to understand the framework within which the evidence was considered.
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
9Every accused person in a criminal trial is presumed to be innocent unless and until he is proven to be guilty. This is arguably the most fundamental principle in our criminal law. K.G. does not have to prove anything. It is the Crown that must prove that K.G. is guilty, not K.G. who must prove that he is not.
10Not only must the Crown prove that K.G. is guilty, but that is he guilty beyond a reasonable doubt. It is not sufficient for the Crown to satisfy me that K.G. is probably guilty or likely guilty of these offences. The Crown must leave me with no reasonable doubt that he is guilty.
11If, after hearing all of the evidence, I am left thinking that K.G. is likely guilty but I am not sure, I have to find him not guilty.
The Application of the Reasonable Doubt Principle in Sexual Assault Cases
12The presumption of innocence and the burden on the Crown to prove each element of each offence beyond a reasonable doubt apply the same way in sexual assault cases that they do in every other case.
13Most sexual assaults do not happen in front of witnesses. By necessity and by their very nature, sexual assaults typically take place in private. This means that there are usually only two people who directly witnessed the events in question: the accused person and the complainant. This, in turn, leads to what is sometimes called a “he said/she said” scenario in court. Of course, the pronouns can be changed to reflect the way the parties identify. But the point is that it ends up being one person’s word against another’s.
14It is important to understand that in a criminal trial, including a sexual assault trial, where the evidence presents a “he said/she said” scenario, it is not open to the trial judge to simply pick which version seems more credible. A criminal trial is not meant to be a credibility contest. The reason for this is that choosing which version seems more credible has the effect of shifting the burden from the Crown, who must always prove its case beyond a reasonable doubt, to the accused to prove that his version is the correct or credible one.
15That is why the Supreme Court of Canada, in a 1991 case called R. v. W.D. [1] , set out a test that trial judges sitting alone or juries are to use to determine whether the Crown has proved its case beyond a reasonable doubt when there are conflicting versions of events. The test from R. v. W.D. has been considered in many cases and commentaries since and it boils down to the following in this case:
i. If I accept as accurate K.G.’s evidence, I must acquit;
ii. If I am not sure whether K.G.’s evidence is accurate, then I have not rejected it entirely and I must acquit ;
iii. Even if I reject K.G.’s evidence because I don’t believe it, I can’t use the fact that I have rejected his evidence to find that he is guilty; and
iv. Even if I reject K.G.’s evidence, he cannot be convicted unless I am satisfied that the remaining evidence proves him to be guilty beyond a reasonable doubt.
16What this means is that it is possible for a judge to not fully believe what the accused testifies to and, to in fact find what the complainant says to be more credible. Even so, that judge may still be left uncertain as to what actually happened. In that situation, there is a reasonable doubt, and the benefit of that doubt must be given to the accused, even where the judge finds the complainant’s evidence to be more plausible or believable than the accused’s. [2]
The Essential Elements of Sexual Assault
17The Crown must prove each of the following elements of the offences beyond a reasonable doubt in order for K.G. to be found guilty of sexually assaulting M.H.:
i. That he touched her in a sexual way;
ii. That the touching was intentional;
iii. That M.H. did not consent to that sexual touching; and
iv. That K.G. knew or was reckless that M.H. did not communicate consent to that sexual touching.
18Regarding the allegations that K.G. had intercourse with M.H. while she was sleeping, the issue is whether M.H. consented to the intercourse. K.G. says she was always awake and always consented when they had intercourse. M.H. said that there were times she would wake up in the night to find him in the process of having intercourse with her to which she had not consented because she was in a deep sleep as a result of the medication she was taking.
19Regarding the allegations that K.G. forced M.H. to perform fellatio on him at times, the issue again is consent. The parties agree that M.H. performed fellatio on K.G. at times in their relationship. M.H. said that sometimes she did not want to do it and told K.G. that but that he would continue to pressure her to do it and would push her face into his crotch. M.H. said that she would then perform fellatio on K.G., even though she didn’t want to, to please him, because she is a “people pleaser”, and she always wanted to make him happy.
20K.G. said that every time M.H. performed fellatio on him, it was consensual. He agrees there were times she said she didn’t want to and, on those occasions, he left it at that. He says he never forced her to do it.
21Regarding the allegations that K.G. had forced anal intercourse with M.H., the issue is whether K.G. intentionally inserted his penis into M.H.’s anus. She says it was on purpose and he says it was accidental and brief.
22Regarding the allegations that K.G. groped M.H.’s breasts and crotch at her home, after they broke up, when he went to borrow a blanket, the issue is whether K.G. touched M.H. sexually. She says that he backed her into the wall and grabbed her breasts and crotch while trying to get her to engage in sexual activity with him. K.G. says that he did not do that at all. He says he got the blanket and that he and M.H. hugged each other, consensually, before he left.
23It is important to understand that the presumption of innocence applies to K.G., accused of sexual assault, as it does in the trial of any other criminal charge. What this means is that the Crown must prove, beyond a reasonable doubt, with respect to each set of allegations:
i. that K.G. had sexual contact with M.H. while she was sleeping and therefore unable to consent;
ii. that M.H. did not consent to performing fellatio on K.G. and that K.G. knew that;
iii. that K.G. intentionally put his penis in M.H.’s anus; and
iv. that the contact between K.G. and M.H. when he went to borrow the blanket was sexual in nature and without M.H.’s consent.
24To be clear, K.G. does not have to prove that M.H. was awake during intercourse, that she consented to performing fellatio, that his penis accidentally went into M.H.’s anus and that he and M.H. just mutually hugged each other when he went to borrow the blanket. He does not have to prove anything.
Consent and the Involvement of Substances
25The starting point in the determination of consent issues in sexual assault cases is in the subjective intent of the complainant about the sexual activity. In other words, the first question is whether the complainant, in her own mind, agreed to the sexual activity.
26The trial judge must consider all of the available evidence, which includes the complainant’s testimony that she did not consent, to decide whether the Crown has proven beyond a reasonable doubt that it is true that the complainant did not consent.
27There are certain situations however, in which a judge may find that, while the complainant consented to the sexual activity in question, her consent is vitiated or invalidated because of the circumstances in which it was given.
28If, for example, a complainant consents to sexual activity but does so because of the application of force to her or because of threats made to her or fears that force will be applied to her if she doesn’t consent, the consent that she gives would be invalid.
29If, for example, a complainant consents to sexual activity but, does so while she is incapacitated by a substance, the consent that she gives would be invalid. Incapacity is found when the complainant did not have an operating mind and so was not capable of :
i. appreciating the nature and quality of the sexual activity; or
ii. knowing the identity of the person or persons wishing to engage in the sexual activity; or
iii. understanding she could agree or decline to engage in, or to continue, the sexual activity. [3]
30It is important to note that although an unconscious person is, by definition incapable of consenting to sexual activity, the same cannot be said for a complainant who was intoxicated by alcohol or drugs or any other substance. There will be some instances in which a complainant will have been so impaired that she was not capable of consenting. It is a factual finding that must be made in each case. Just because a complainant does not remember engaging in sexual acts or has a complete blackout of the time in question does not lead to the inescapable conclusion that she lacked the mental capacity to consent. On the other hand, being able to engage in some physical actions such as walking a short distance, making a phone call, speaking, and some awareness of or resistance to sexual activity do not lead to the inescapable conclusion that a complainant in fact had the capacity to consent. [4]
Similar Fact Application
31The Crown applied to admit M.H.’s evidence on each count as similar fact evidence in support of its case on the other counts in what is commonly referred to as a count-to-count similar fact application.
32The issue I must decide is whether the proposed similar fact evidence meets the test for admissibility as set out in the decision of the Supreme Court of Canada in R. v. Handy [5] , which I will refer to as “ Handy ” from this point on. Ultimately, the issue is whether the Crown has established that the probative value of the proposed evidence outweighs its prejudicial effect.
33In Handy , the Supreme Court of Canada re-affirmed that evidence of prior discreditable conduct, or of propensity or disposition, may be relevant to the crime charged, but is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. Indeed, the presumption is that evidence of prior discreditable conduct is inadmissible. The Court explained the policy basis for the exclusion of this evidence as follows [6] :
The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible … .
34In Handy and R. v. Shearing [7] , the Supreme Court of Canada reaffirmed that similar fact evidence, or evidence of prior discreditable conduct, is only admissible where the prosecution establishes on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect. The Court noted in Handy that “an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse” [8] . The Court summarized the test for admissibility as follows: [9]
Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
35The Supreme Court in Handy provided further guidance in the application of that test in cases, such as this one, in which the Crown seeks to rely on the evidence to prove issues other than identity. The framework of the analysis suggested by the Supreme Court is as follows. First, probative value may be assessed in the following manner:
i. By considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion. In particular:
a) Where there is an “air of reality” to allegations of collusion, the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence “is not tainted with collusion”; and
b) Similar fact evidence may be “potentially too prejudicial to be admitted unless the trial judge is of the view it meets the threshold of being reasonably capable of belief”;
ii. By identifying the “issue in question” (e.g. the live issue at trial to which the proposed similar fact evidence is said to be relevant and its relative importance in the particular trial.) If the evidence of prior discreditable conduct “is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go no further”; and
iii. By identifying the factors that connect the similar fact evidence to or distinguish it from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible. These “connecting factors” may, but need not include:
a) The proximity in time of the similar acts;
b) The extent to which the other acts are similar in detail to the charged conduct;
c) The number of occurrences of the similar acts;
d) The circumstances surrounding or relating to the similar acts;
e) Any distinctive features unifying the incidents;
f) Intervening events; and
g) Any other factor which would tend to support or rebut the underlying unity of the similar acts. [10]
36When the issues to which the evidence may be relevant do not include the identity of the perpetrator, as regards the degree of similarity required in the evidence, the Supreme Court held that:
[t]he point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter [citation omitted]:
The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence. [11]
37In discussing the difference between general propensity evidence, which is always inadmissible, and evidence of a specific propensity, which may be admissible, the Supreme Court in Handy also noted that “cogency increases as the fact situation moves further to the specific end of the spectrum.” [12]
38After the probative value of the evidence has been assessed, its prejudicial effect must be considered. Handy confirms that with respect to the issue of prejudice, potential prejudice to the accused is assessed by considering the moral prejudice and the reasoning prejudice. Moral prejudice against the accused means the risk of convicting the accused because he is a “bad person”, rather than based on proof that he committed the offence before the Court. Reasoning prejudice means the risk of distracting or confusing the trier of fact, or of undue consumption of time, and the danger that the jury may have difficulty in disentangling the subject matter of the charges from the evidence of prior discreditable conduct. [13]
39With all of these principles in mind and the legal framework within which the decisions in this case must be made having been set out, I now turn to the evidence in the case before me and the application of these legal principles to that evidence.
The Evidence
The relationship between K.G. and M.H.
The evidence of M.H.
40M.H. is 42 years old. She lived with K.G. in a common-law relationship from 2007 through 2017.
41M.H. testified that everything went well in her relationship with K.G. until approximately 2011. Things started to go downhill then because she had gynecological surgery which left her with no sex drive. She told K.G. many times that because she had “no womanly parts,” she had no sex drive but “he wouldn’t have any of that.” M.H. is a “people pleaser” and she wanted to make K.G. happy so she participated in certain sexual acts even though she didn’t want to, including performing fellatio on K.G..
42M.H. also testified that her relationship with K.G. started to change around 2010 because he began to be very controlling towards her. She was not allowed to go out with friends or to buy anything. K.G. controlled her money.
43M.H. testified that she had a close relationship with K.G.’s adult daughters and their children, who she considered to be her grandchildren, during their relationship and that she has remained close with one of them, E.G.G. She said that when she and K.G. lived together, E.G.G. would be over at their house more than once per week and often brought her children. M.H. said that K.G. would get angry and aggressive when the grandchildren were over and she found that problematic. K.G. would not stop her from going out of the house with his daughters but took issue with her going out with anyone else. She worked outside the home, full time, for periods during their relationship.
The evidence of E.G.G.
44E.G.G. is the 34-year-old daughter of K.G.. She and K.G. had a “hit or miss” relationship when she was growing up and, at the time of the trial, they had not spoken in a over a year. K.G. does not have any contact with E.G.G.’s children, who are his grandchildren.
45E.G.G. has known M.H. for 15-16 years, since M.H. and K.G. started their relationship. E.G.G. described her relationship with M.H. as “okay” and “good.” E.G.G. and M.H. have maintained their relationship and M.H. has maintained her relationship with E.G.G.’s children since M.H. and K.G. broke up.
46When M.H. and K.G. were in a relationship, E.G.G. would see them once or twice per week. They would go to each other’s homes for dinner.
47According to E.G.G., at the beginning of their relationship and for about the first year, things seemed to be going very well between M.H. and K.G. but after awhile, it seemed that there was a lot of tension between them which made it difficult to be around them. There was a lot of arguing between M.H. and K.G.. E.G.G. said that K.G. would often bang or slam something on the table and he would often blame M.H. for anything that went wrong, even things that had nothing to do with her, or if something wasn’t done to his liking. She said that K.G. would bang his first or a cup or anything in his hand on the table and she perceived it to be a form of intimidation towards M.H. She said that her father seemed angry all the time when she was at the home he shared with M.H.
48E.G.G. said that when K.G. engaged in this intimidating behaviour towards M.H., M.H. would often try to walk away from him. K.G. would then put his arm up on the wall to block M.H.’s path to prevent her from walking away. K.G. then told M.H. to “just sit down” which she did, like a child, according to E.G.G.
49In cross-examination, E.G.G. agreed that M.H. would “yell back sometimes” at K.G. but that the only times M.H. stood up to K.G. were when E.G.G.’s children were around. M.H. would object to K.G. raising his voice and fighting with her in front of the children. In those situations, E.G.G. often felt compelled to leave with her children because tensions were running high between M.H. and K.G. and E.G.G. did not feel it was good for the children and M.H. agreed.
50E.G.G. said that K.G. would often seem angry that she and/or her children had come over to his and M.H.’s home, especially on short notice and when he was tired from working all day. So, M.H. would often go to E.G.G.’s home instead, to visit E.G.G. and the children. However, E.G.G. said that, after a while, M.H. “wasn’t allowed to” go over to E.G.G.’s home to visit her.
51E.G.G. said that towards the end of M.H.’s relationship with K.G., and after it was over, M.H. became upset and depressed and it was difficult to get her to leave the house to, for example, go out for dinner. However, E.G.G. said that more recently, M.H. does not seem as emotional or scared to go out. She visits E.G.G. and her children regularly and seems to have come “out of her bubble.”
52E.G.G. said that M.H. did not ever speak to her about any disagreements M.H. may have had with K.G. about finances.
53E.G.G. recalled a time when M.H. had broken her arm and was expressing fear about going home to tell K.G. about her injury because she was worried that he would blame her and be angry that her ability to work and help pay the bills would be hampered.
The evidence of K.G.
54K.G. denied that he ever asserted any kind of control over whether M.H. was able to leave the residence. He said that he told her sometimes, when she was going out shopping, that they did not have any money for her to buy things.
55K.G. denied that there was ever any discussion between he and M.H. about the effect of the gynecological surgery on her sex drive.
56K.G. denied being aggressive, yelling or slamming his fist or other objects down onto a table in E.G.G.’s presence. He also denied ever blocking M.H.’s path with his arm. He said that got he upset with E.G.G. sometimes because she had a habit of showing up at the home he shared with M.H. and dropping her children off, with little to no notice, and expected him and M.H. to babysit.
The allegations of K.G. repeatedly having intercourse with M.H. while she was sleeping
The evidence of M.H.
57M.H. testified that K.G. began having non-consensual sexual intercourse with her sometime between 2010 and 2011. She was taking the highest possible dose of a prescribed sleep medication and it made her “a bit foggy” and usually “knocked her out.” The first time, she woke up in the night, feeling pressure on her. She opened her eyes to find K.G. on top of her, with his penis inside of her, “ramming her.” Her pants were pulled down. She tried to push K.G. off of her but he held her arms down and continued. She told K.G. “no”, to stop and get off of her but he did not and told her to “shut the fuck up” and to let him do it. He continued for about 15 minutes.
58M.H. woke up in the morning in pain, with bruising on her thighs. M.H. asked K.G. “what was going on” and he told her that she agreed to it. She protested and asked how she could agree to anything when she was under the influence of sleep medication.
59M.H. later added that she experienced vaginal bleeding the following morning. M.H. agreed in cross-examination that she did not tell the police in her video recorded statement that she suffered bruising but she said she was confident that she had told the police that at some point.
60M.H. estimates that the same thing happened – her waking up from a deep sleep to find K.G. having non-consensual intercourse with her – 8-10 times between 2010 and 2017. She later said that the last incident of forced sex was in 2016.
61M.H. explained that the medication she took every night was Trazodone. It was prescribed by her doctor to help her fall asleep and stay asleep and also because it helps with bipolar disorder. When she took Trazodone, it put her into a deep sleep and made her very groggy in the morning. She cited, as an example of this, the fact that there was a fire close to her apartment one night and her friends came to her apartment to wake her up to tell her to get out. Her friends had to bang on the door for a long time and when M.H. eventually opened the door and her friends told her she needed to leave her apartment, she told them she was tired and was going back to bed. Her friends tried to persuade her to leave her apartment but she just said “no”, locked the door and went back to bed.
62M.H. further explained that if she did have to get up in the night after having taking Trazodone, for example to go to the washroom, she felt like an “astronaut” or “the Michelin man”. She described it as feeling “very frumpy and groggy.” She also used the word “hazy” to describe her state while on Trazodone but said that it “doesn’t mean that [she doesn’t] remember stuff.” She rejected the notion that she was sometimes in a state where it wasn’t clear to her whether she was awake or in a dream. She said that she and K.G. had conversations about the effects of Trazodone on her in which he told her that she dreamed a lot after taking it as evidenced by the fact that she would, in her words, “babble and stuff, even though I’m half asleep.”
63M.H. stated that what she reported regarding K.G. having non-consensual intercourse with her in the night while she was under the influence of Trazodone was “absolutely not” a result of her suffering from the effects of a bipolar condition. When asked whether it was possible that as she was waking up during these incidents, it would look like she was awake and moving around although she was still not really alert, she said she didn’t know. When asked whether it was possible that there were things said back and forth between her and K.G. as she was just emerging from sleep that she didn’t remember, she said “not that I know of.” She said that she was sure that she would never agree to sex while under the influence of Trazodone. She said that she was “not coherent” when she took Trazodone. She then said, “you can have a conversation with me, but the next day, or the next morning I wake up, I don’t even know you’re, you were having this conversation… you were like foggy.”
64In cross-examination, M.H. said that K.G. also forced vaginal intercourse on her, without her consent, when she was not under the influence of Trazodone.
65Also in cross-examination, M.H. agreed that K.G. worked the night shift, at a grocery store, from 11:00 p.m. – 7:00 or 8:00 a.m. at some point during their relationship and that it could have been from 2009 to 2012. She also said that when he worked the night shift at the grocery store, she was not working and so she would sleep during the day, when K.G. slept, and would take her “nighttime meds” when she would go to sleep during the day.
The evidence of K.G.
66K.G. said that he never forced M.H. to have sex with him against her will. He said that he never had sexual intercourse with her when he believed her to be asleep. He said it was his practice, if M.H. was asleep and he wanted to engage in sexual activity, to “wake her up, talk, cuddle, caress, fondle, kiss, normal aspects of starting sexual intercourse.”
67K.G. said that, after M.H. was awake, he believed she was consenting to sexual activity because she touched, fondled and kissed him.
68K.G. said that M.H. was on medication for fibromyalgia and bipolar disorder but that it was only during the last couple of years of their relationship that she took these medications. He said her medications changed from time to time and that she was taking a narcotic medication close to the end of their relationship.
69K.G. said that he was never aware of M.H. having injuries that caused her to bleed or have bruising as a result of sexual activity.
The allegation of one instance of non-consensual anal penetration
The evidence of M.H.
70M.H. believes that it was around 2013 when she and K.G. were having consensual vaginal sexual intercourse on their bed when K.G. flipped her over onto her stomach, held her down and started inserting his penis into her anus. M.H. yelled “no” and told K.G. to stop. He shoved her face into the bed and told her to shut up. M.H. was “crying and freaking out.” After a few minutes, K.G. stopped, got mad at M.H., put on his pants and walked out of the room.
71In cross-examination, M.H. denied that K.G. could have penetrated her anus with his penis accidentally on this occasion. She acknowledged that in her one paragraph written statement to the police on February 15, 2021, she did not mention that K.G. had flipped her over before inserting his penis into her anus. Instead, she simply said that he pushed her face down on the bed before doing so.
The evidence of K.G.
72K.G. said that there was one occasion, in 2016, when he and M.H. were having consensual vaginal intercourse and his penis accidentally “slipped from her vagina to her rectum.” This went on for approximately 10 seconds until K.G. “realized that [he] wasn’t in the right…hole” and then he stopped. During the 10 seconds that K.G.’s penis was, according to him, in M.H.’s rectum, he says that she “was still moaning” and specified that it was “pleasurable moaning.” He says there was no objection or any indication from M.H. that she was upset.
73K.G. said that M.H. told him, prior to this incident, that she did not like anal sex and did not want to engage in it. He said that is why he stopped when he realized that his penis was in her rectum as opposed to in her vagina. He said they actually stopped having intercourse completely after he removed his penis from her rectum but he denied that it was because M.H. was crying and asking him to stop.
The allegations of repeated instances of non-consensual fellatio
The evidence of M.H.
74M.H. said that, around 2013, there was an instance in which she and K.G. were engaging in consensual sexual activity and K.G. asked her to “give a blowjob.” She did not want to but K.G. pushed her head down towards his crotch and held her head there and said, “come on, come on, just do it.” Eventually, M.H. performed fellatio on K.G. but she did not want to.
75M.H. testified “he would force me to do oral all the time.” She said that he would shove her head down and say “oh, come on, you know you want to. Oh, come on. Don’t you want to make me happy? Ah, come on, you can do it.” She said that he would then start getting angry and she stated that she is not a person who likes conflict and so she “started like closing [herself] off.”
76M.H. said that K.G. would shove her head down by grabbing her hair by the ponytail and pushing her face into his crotch. At times, he was naked and at other times, he was clothed when he did this. She said that she pushed her head back against his hand to try to head butt K.G. a bit to try to get him to let go of her hair. This prompted K.G. to push her face down harder so M.H. gave up trying to fight him and did what he wanted because it was the only way she believed she could get him away from her.
77M.H. said that she told K.G. that she didn’t want to do it, that she wasn’t in the mood, she might feel like doing it tomorrow and that she didn’t know when she would be in the mood. K.G. got angry with her, swore at her and said that any girl would want to be with him.
78M.H. said that these instances of K.G. forcing her to perform oral sex on him happened at least 15 times in the years 2010-2017.
79In cross-examination, M.H. said that on one occasion, when she refused to perform oral sex on K.G., he held her down and penetrated her vagina with his penis, without her consent.
The evidence of K.G.
80K.G. said that he never forced M.H. to perform oral sex on him. He said that he would put his hands on her head after she had initiated oral sex but that he never “forced her down before she started.” K.G. believed the oral sex M.H. performed on him was consensual because of M.H.’s willingness to do it and the fact that she never objected to it.
81K.G. also said that M.H. never told him that she did not like to perform oral sex. He said there were instances in which he would ask her to do it but she would say no and he left it at that. He said that she did not perform oral sex on him every time they had sexual relations but in the instances that she did, it was at her own will.
The allegation of non-consensual sexual touching at M.H.’s home after the relationship ended
The evidence of M.H.
82Around Halloween of 2017, M.H. and K.G. were taking a break in their relationship. He had left the home they shared. One day, around this time, K.G. came over to what was now M.H.’s home to borrow a blanket. He approached her saying that they could still have a sexual relationship. M.H. backed away from him to the point where her back was against the wall and K.G. grabbed her crotch, trying to pull her pants down, and her breasts. M.H. slapped K.G.’s hands away from her and told him “no” and her dog barked and snapped at K.G.. K.G. got angry and left.
The evidence of K.G.
83K.G. agrees that he went to M.H.’s home at some point after they broke up in order to get a blanket from her. He believes it was in the first two weeks of December, 2017. He says that they talked, then hugged but M.H.’s dog snapped at him and then he left. He denies groping or touching M.H.’s breasts or crotch. He asserted “our relationship was finished, there was no need for any sexual contact with her.”
After the relationship ended and the report by M.H. to the police
84In cross-examination M.H. agreed that as of December 18, 2017, which she believes is the day she and K.G. ended their relationship for good, she was still charging K.G.’s e-bike on her property and she was communicating with him in a relatively friendly way about going to the rent-to-own company that they had debts with to try to clear up the debts.
85M.H. testified that she was angry with K.G. after they broke up. He left and went to work one day and never came back. He stopped paying the bills and the rent. According to her, because K.G. defaulted on debts after they broke up, K.G. “ruined [her] name.”
86K.G. said that he and M.H. separated in November, 2017 because they “had drifted apart.”
87M.H. reported the sexual abuse by K.G. to police in February, 2021 after entering into a new relationship with someone who helped her get her life and her sense of self back together. She said she was “tired of people getting away with things.” In her statement, M.H. told the police that K.G. had not properly dealt with the financial debt incurred during their relationship. She agreed that she remained upset about the unpaid debts when she reported the sexual abuse to the police. M.H. stated that she did not “charge him with rape” because of the financial issues. She stated that they were “two separate things.”
88M.H. also told police in 2021, when she reported the sexual abuse, that she believed K.G. had cheated on her when they were together with the woman he is now in a relationship with. M.H. stated that she was not upset that K.G. was still with this other woman but she said she was “tired of him getting away with everything.”
89M.H. gave two statements to the police in February, 2021. The first was a written statement that she wrote and gave to police on February 15, 2021. That statement was about one paragraph long and did not mention her waking up in the night to find K.G. having sex with her. M.H. explained that she did not know exactly what to write in the written statement and that she was told by a police officer that she would be coming back to give a full video recorded statement in which she would cover everything in detail. She went back and gave that video recorded statement, which was her second statement, on February 17, 2021.
Analysis
Findings with respect to K.G.’s evidence
90In this case, I find that it makes sense to follow the typical approach to the W.D. test by examining the evidence of K.G. first. If I believe K.G.’s evidence, it provides a complete defence to each of the charges he faces.
91The Crown argues that I should reject K.G.’s evidence because it was diametrically opposed to what he said in his police statement and no explanation for the differences were offered. It is important to note that the Crown did not tender K.G.’s statement to the police as evidence to be considered as part of its case. K.G.’s statement is therefore not in evidence for the truth of its contents. K.G.’s statement itself is not evidence. K.G. was cross-examined on parts of his police statement in an attempt by the Crown to impeach his credibility. In these circumstances, it is not open to me to find that a fact is true because K.G. stated it to be true in his police statement, unless that fact was put to him in court and he adopted that fact as true as part of his evidence. However, to the extent that the Crown has proved that he made an inconsistent statement about something on a prior occasion, it may be that K.G.’s credibility was successfully challenged.
Plausibility
92The Crown argues that K.G.’s evidence was implausible when he testified that, although the relationship was going well for almost the entire ten years that he and M.H. were together and only started to unravel in November 2017, close to the end, he and M.H. never had a discussion about her lack of sex drive or the effect of the gynecological surgery on her sex drive. The Crown argues that, given K.G.’s own evidence about his intimate involvement in M.H.’s medical care, accompanying her to her doctor’s visits and being on top of her prescriptions, it doesn’t make sense that they would not have had this discussion.
93The problem with this submission is that it assumes that M.H.’s evidence that she no longer had a sex drive after the surgery is true. It also presumes, to a certain extent, that it is a foregone conclusion that the gynecological surgery would have had a negative impact on her sex drive. In other words, it presumes there was a discussion to be had and it presumes that M.H. is telling the truth that it took place. However, at no time can I presume the evidence of M.H. to be true and then assess how K.G.’s evidence fares in the face of that true evidence. That would violate the presumption of innocence and the principle that the Crown must prove its case beyond a reasonable doubt.
94I have concerns about the plausibility of another aspect of K.G.’s evidence relating to the anal penetration incident. He said in court that his penis accidentally slipped into M.H.’s anus and that it took him about ten seconds to realize that he wasn’t “in the right hole”. Common sense dictates that it would have taken far less that ten seconds for K.G. to realize that his penis was no longer in M.H.’s vagina but, rather was in her anus. I believe that K.G. would have realized this almost immediately upon his penis penetrating her anus. So, at first blush, his evidence on this point seems incredible to me. However, I must also consider the fact that witnesses are notoriously bad at estimating measurements such as height and weight and distance between objects. I believe the same can be said about the way that witnesses estimate the passage of time. I believe that K.G. may have been attempting to communicate that his penis was in M.H.’s anus for a very brief period of time before he withdrew it and that he used the estimate of ten seconds to explain that, without actually considering what the passage of ten seconds, in reality, feels like.
Inconsistencies
95The Crown argues that K.G.’s evidence is inconsistent with the evidence of E.G.G. that the relationship seemed to sour about a year after it started and that E.G.G. observed K.G. raising his voice and behaving in an intimidating manner towards M.H. as well as banging objects on the table and impeding M.H.’s movement in the home when he was angry with her.
96I agree with the Crown that K.G.’s evidence conflicts with E.G.G.’s on this point. However, I find it is also important to note that both E.G.G. and M.H. corroborated K.G.’s evidence that he would get angry when E.G.G. would attend at the home he shared with M.H., unannounced and without asking in advance, in order to drop at least one of her children off to be babysat. K.G. testified that he would get angry at his daughter for doing this and angry at M.H. for allowing it instead of agreeing with him that they would not do it. In other words, the anger and hostility that E.G.G. observed while she was present may have been anger and hostility directed at her for showing up with her children, expecting to leave them there to be babysat and anger towards M.H. for not refusing to do it.
97Further, as defence counsel points out, there were aspects of E.G.G.’s evidence that M.H.’s evidence did not corroborate such as slamming an object or his hand into the table or blocking M.H.’s exit from the room with an arm block. Also, M.H. testified that her relationship with K.G. started to go downhill in 2011, about four years after it started, not one year after it started as E.G.G. indicated.
98So, with respect to the Crown’s submission that K.G.’s evidence should be rejected because it is inconsistent with E.G.G.’s evidence, I find that there are significant inconsistencies between E.G.G.’s evidence and the evidence of M.H. as well. What is clear is that all three of them agreed in their evidence that K.G. would sometimes exhibit anger and hostility when E.G.G. showed up with her children. K.G. offered an explanation for that which I find to be reasonable. I do not find that his behaviour in these circumstances sheds any light on whether he committed these offences and I do not find his evidence lacking in credibility because of the evidence of E.G.G.
99The Crown argues that K.G. gave different evidence in court than he gave in his police statement about whether he ever penetrated M.H.’s penis with his vagina while she slept. In court, K.G. categorically stated that he never once put his penis in M.H.’s vagina while she was asleep . In cross-examination, K.G. agreed that he had the following exchange with D/Cst. Clark, who interviewed him, at approximately 1:00:38 into the video statement [14] :
D/Cst. Clark: Okay. So is she awake or sorry, I guess is she sleeping while you are penetrating her? Is that how that works?
K.G.: At the beginning, yes.
D/Cst. Clark: Okay. So, I, I’m sorry, cause that kind of stuff, I…can you explain that to me, how, how you manoeuvred that?
K.G.: Laying in bed.
D/Cst. Clark: Okay. Do you guys sleep naked, is that…
K.G.: Sometimes yeah.
D/Cst. Clark: Okay, fair enough. And if you were and if you were having sex with her while she is sleeping, how are you guys positioned?
K.G.: Spooning.
D/Cst. Clark: Okay. So from behind kind of thing, is that?
K.G.: (nods yes)
100Further, in cross-examination, K.G. agreed that, in his police interview, he made the following statement, “we used to wake each other up with sex.”
101In court, K.G. said that he misspoke when he said that to the police and that what he meant was that he and M.H. would wake each other up “for” sex, not “with” sex. The distinction of course is that if K.G. is found to have woken M.H. up “with” sex, it implies that she was not awake when sex started and, because the law is clear that a person cannot consent to sexual activity in advance and that a person who is sleeping cannot consent to sexual activity, in this scenario, K.G. would be having sex with M.H. without her consent. On the other hand, if K.G. is found to have woken M.H. up “for” sex, this does not necessarily imply a lack of consent.
102Ultimately, I do not take much from the cross-examination of K.G. on this point alone because K.G. goes on in his police interview, very shortly after the “with sex” statement to say “…we had done it before where one person wakes the other up for sex.” In other words, he said both “with sex” and “for sex” in his police interview. He explained in court that what he meant was “for sex”. He said “for sex” at the time. I do not find this, in and of itself, to be an inconsistency in his evidence.
103When confronted with this in cross-examination and asked whether it was another “wrong choice of word” when he told police that his penis was in M.H.’s vagina while she was sleeping, K.G. replied “yes, she was awake every time we had intercourse.” K.G. said that he was “a little baffled” and “confused” by the allegations at the time of his police interview and so he may have chosen the wrong words at that time. When pressed about the fact that he gave what is seemingly a clear answer to the question as to how he was physically able to have sex with M.H. while she was sleeping, namely that they were “spooning”, K.G. responded in court “no, she was awake while we were spooning.”
104On one hand, I have trouble accepting K.G.’s evidence on this point. I agree with the Crown that he seems to clearly tell D/Cst. Clark that there were times that he would at least begin sexual intercourse with M.H. by penetrating her vagina with his penis, while spooning her from behind, while she was still sleeping. He really didn’t offer an explanation as to why he said what he said to the police on this point.
105On the other hand, I note K.G.’s evidence that he was baffled and confused at the time he spoke to the police. It is not surprising to me that he may not have been thinking clearly at the time he spoke to the police. I would expect that anyone in his situation would feel significant stress and anxiety.
106I also note that the answers that K.G. gave are in answer to quite leading questions from D/Cst. Clark. I say that as an observation, not necessarily a criticism. The whole section in question starts with the officer saying “I guess she is sleeping while you are penetrating her? Is that how that works?” and K.G. answers that leading question with “at the beginning, yes.” I understand that the officer likely asked the leading question in an attempt to understand what K.G. meant when he said, shortly before, “because we had done it before where one person wakes the other up for sex.” And, as noted earlier, shortly before that, K.G. had made the statement “we used to wake each other up with sex.” So the ambiguity of “with sex” versus “for sex” was introduced by K.G.. But the resolution of that ambiguity by assuming it meant that M.H. was asleep came in the form of D/Cst. Clark’s question, which contained the suggestion that M.H. had been asleep. That was not an assertion of K.G.’s. While K.G.’s answers to the leading questions are clear, I find that they should be given less weight because they are given in answer to suggestive questions.
107The Crown argues that in court, K.G. testified that he knew M.H. was awake before every instance of intercourse because they were talking, cuddling and kissing. However, in cross-examination, K.G. agreed that he told the police that it was possible that M.H. was asleep during sex.
108I do not agree with this submission. It is important to note that what K.G. was being questioned about in his police statement at the relevant juncture (from 58:53-59:23) was whether M.H. ever fell asleep during sex. This is factually different from the issue of whether she was asleep when sex started. The relevant exchange was as follows:
D/Cst. Clark: Okay. And would she ever fall asleep during sex?
K.G.: Uh, I don’t believe so.
D/Cst. Clark: You don’t believe so?
K.G.: (shakes head no)
D/Cst. Clark: Okay. Again, it’s possible that she did and…
K.G.: Everything is possible. (shrugs his shoulders)
D/Cst. Clark: Okay. Okay, um, did you ever notice that she fell asleep?
K.G.: No, the light’s off.
109This was, in fact, consistent with his testimony in court. When asked in court whether M.H. ever fell asleep during sex, he maintained that he “didn’t believe so.” He added in court that he did not believe she was ever asleep during sex because although he could not see her, (because the lights were off), she communicated vocally with him.
110The Crown argues that in court, K.G. said, in reference to the anal penetration incident, that his penis accidentally slipped into M.H.’s anus, that it remained there for about ten seconds until he realized what had happened because of a difference in the sensation for him and that he then immediately removed his penis from M.H.’s anus. In his police statement, at approximately 1:01:15, K.G. told D/Cst. Clark that he kept going with his penis in her anus until he was “finished.”
111Defence counsel argues that K.G. wasn’t asked in court what “finished” meant although he agreed that was what K.G. said to police. The Crown submits that it is obvious what “finished” means in this context and that it is ejaculation.
112I agree with the Crown that there is an inconsistency in what K.G. told the police about how the anal penetration incident ended and what he said in court.
113K.G. was also cross-examined about the fact that he said, in his police interview, that on a particular night, he “was consensually taking advantage of [M.H.].” This comment was sandwiched between K.G.’s comment that he and M.H. would wake each other up “with sex” and his comment that “one person wakes the other up for sex.” K.G. explained in court that what he meant when he told the police that he was “consensually taking advantage of” M.H. was that when he was having intercourse with her, he would raise and hold her hands above her head and that this was “taking advantage of her” because it was “sort of restraining her,” but with her consent.
114It was pointed out to K.G. that he had not given this explanation to the police when clarity was sought, during his police interview, as to what he meant by “consensually taking advantage.” It was pointed out, in cross-examination that, in fact, he had offered “consensually taking advantage” as an explanation for the fact that he had woken M.H. up with sex. In response, K.G. reiterated in court that he misspoke when he said, “with sex” and that what he meant to say was that one of them would wake the other up “for sex.” As I pointed out earlier, K.G. does actually say both “with sex” and “for sex” in this section of his interview with police.
115I find that K.G.’s answers in cross-examination when questioned about his answers to police about M.H. being asleep at the beginning of sexual intercourse and about his comment about consensually taking advantage of M.H. negatively affected the credibility and reliability of his evidence. I find that his credibility was negatively impacted because I found him to be somewhat evasive when being cross-examined in these areas and I find his answers to be largely unresponsive in their effort to explain the inconsistency between what he said in court and what he said to the police. His attempts to explain why he told the police one thing and then said something different in court really just amounted to him restating his overall position which was that M.H. was always awake when they had intercourse.
116K.G. testified, more than once, that he was “baffled” and “confused” by the allegations the police were speaking to him about. While I accept that K.G. was likely distressed while being questioned by the police and that that may have affected his ability to give perfectly clear answers, I fail to see how being baffled or confused would lead K.G. to tell the police that M.H. was sleeping at times at the outset of intercourse and that he was consensually taking advantage of her. Further, if consensually taking advantage of her meant that he would hold her hands over her head as a form of consensual restraint during sex, there is no reason why a baffled or confused accused person would not offer that explanation when asked for it by the police, as opposed to reiterating that it had something to do with M.H. being asleep.
117Perhaps more importantly, and clearer, is the negative impact on the reliability of K.G.’s evidence when what he said to the police and what he said in court are compared. K.G. clearly told police that there were times when he began having intercourse with M.H. while she was still sleeping. He said the opposite in court. In court, he said that she was never asleep at any time during intercourse. The fact is that K.G. has given two diametrically opposed accounts on two occasions and he was not able to explain why he did so. This casts obvious doubt on the reliability of his evidence.
118On the other hand, omitting to provide an explanation does not necessarily equate with a lie. So when K.G. did not answer the officer’s request for clarification as to what he meant when he used the term “consensually taking advantage of her” by offering the “consensual restraint during sex” explanation, it does not necessarily mean that he is lying now, in court, when he offers that explanation now. It is possible that if he was baffled, confused and unsure when speaking to the police, he may have omitted details or not answered questions in a perfectly linear or perfectly responsive manner. Further, as noted earlier, some of the questions asked by the officer were leading.
Balance
119It is also important to note that K.G. made fair concessions in his evidence. For example, when he was asked whether M.H. ever fell asleep during sex, he said he “didn’t believe” so and he reiterated what he had said to the police – that anything was possible, particularly given that he couldn’t see M.H. when they had sex with the lights off. He added in his evidence in court that he believed she was awake at all times during sex because they communicated vocally.
120I also find that K.G.’s evidence was balanced in the sense that he did not seem to go out of his way to make M.H. “look bad” nor did he seem to exaggerate in his evidence. For example, when testifying about the times when E.G.G. would attend their home, he stated, without prompting, that he would get upset that his daughter just wanted to drop off her children for babysitting but that M.H. did not have a problem with it and would be willing to change her plans in order to help with the grandchildren. This was an example of K.G. giving evidence that reflected well on M.H. and perhaps cast him in a somewhat negative light, especially in comparison to her.
121K.G. also readily acknowledged in cross-examination that he agreed with M.H.’s characterization of herself as a “people pleaser.” In my view, had he been looking to tailor his evidence and to try to leave the court with a negative impression of M.H., he would likely not have adopted this characterization.
Reliability
122In terms of the reliability of K.G.’s evidence, I have previously made reference to some specific aspects of his evidence that give me pause. But it is important to note that, overall, I do not have concerns about the general reliability of K.G.’s evidence in the sense that I have no concerns about his ability and capacity to observe the situations that he gave evidence about and I have no concerns about his ability to communicate his observations.
123I noted that, at first blush, there may have been a concern about K.G.’s memory, in particular as it related to the incident when he went to borrow the blanket after he and M.H. separated. In his police statement, K.G. said that he did not remember that incident. However, he gave evidence about the incident in court. When cross-examined about the fact that he told the police he didn’t remember it and was now saying that he did and that it happened differently than as described by M.H., K.G. explained that hearing M.H. testify about the incident in court made him recall the incident. In my view, it is entirely possible that K.G. had no memory about the blanket incident when speaking to the police, especially if it was, as he says, an innocuous encounter. It is also entirely possible that his memory of the incident was refreshed by hearing M.H. talk about it in court. Witnesses often refresh their memories about many things in court and there is nothing untoward about it.
Conclusion
124After carefully considering the credibility and reliability of K.G.’s evidence, I find that because of the significant and material frailties I found in it, I do not accept it entirely. However, I find that I am also not able to reject it entirely. The bottom line with respect to K.G.’s evidence is that I do not know whether he is telling the truth when he says that he never engaged in sexual intercourse with M.H. when she was sleeping, that when M.H. performed oral sex on him, from his perspective, she was consenting, that when his penis penetrated her anus on the one occasion it did so, it was an accident and that he did not grope her crotch and breasts when he went to her home, after they broke up, to borrow a blanket.
125Because I am not sure whether K.G.’s evidence is accurate, I have not rejected it entirely, which means that the Crown has not proven its case beyond a reasonable doubt, and I must acquit. In the event that I am wrong in my findings with respect to K.G.’s evidence however, I will explain below my findings with respect to the evidence tendered by the Crown.
126Further, as the Crown submitted, there are situations in which a judge is able reject an accused’s evidence, and not be left in a doubt by it, not because of any particular frailty identified with the accused’s evidence but because, when the accused’s evidence is considered, as it must be, in the context of the whole body of evidence called in the case, it must be rejected because of the “reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence.” [15]
127The Crown asks me to find that this is one of those cases and to find that K.G.’s evidence should be rejected, if for no other reason, than because I accept the evidence tendered by the Crown as proof beyond a reasonable doubt. I do not find as such and below, I will explain why.
Findings with respect to the Crown’s evidence
The Similar Fact Application
The positions of the parties
128The Crown submits that M.H.’s evidence as it relates to each count, which is the proposed similar fact evidence, meets the test set out by the Supreme Court of Canada in Handy and should be admitted and applied between counts to support her evidence on the other counts. The Crown argues that the evidence is probative because it is relevant to the issue of the actus reus or whether the acts complained of actually occurred. The Crown argues there is a pattern in K.G. taking advantage of consensual physical contact with M.H. in order to sexually assault her. Further, his actions in each of the three incidents are similar to such a degree that it makes it unlikely that it is just a coincidence that the acts complained of are so similar.
129The Crown also submits that the evidence is probative because it is relevant to the issue of the mens rea or what K.G.’s intent was when the acts complained of occurred. The Crown argues that the asserted pattern of K.G. taking advantage of a consensual physical encounter with the complainant to then force her into an unwanted sexual act demonstrates an intention on his part to wait until a consensual sexual encounter occurred and to then take advantage of it. The Crown further argues that the proposed similar fact evidence provides context for the escalation in invasiveness of the sexual assaults of the complainant to include penetrating her vagina with his penis while she was sleeping.
130The Crown argues that the probative value of the proposed similar fact evidence outweighs its prejudicial effect.
131The Crown suggests that the prejudicial effect of the evidence is diminished since this is not a jury trial, and the court will not be at risk of engaging in general propensity reasoning. Further, the Crown argues that the fact that this is a between-count application further reduces the risk of moral and reasoning prejudice because the Court has already heard the evidence relating to each of the counts.
132Defence counsel argues that the evidence should not be admitted for similar fact purposes because there is insufficient similarity between the incidents complained of, there are significant gaps in time between the incidents and there was an intervening event - the parties’ separation - between the allegations of forced fellatio, forced anal sex, intercourse while the complainant was sleeping and the last incident complained of, the alleged incident of the accused groping M.H. when he went to her house to borrow a blanket.
133Defence counsel also argues that the Crown frames the similarity between the alleged incidents as being the accused turning consensual physical activity into non-consensual sexual activity but that that is not, in fact, what is alleged to have happened in all of the incidents. In other words, defence counsel argues that the similarity relied on by the Crown is not there.
Analysis
134As indicated in Handy , “the issue at this stage is to determine whether the similar fact evidence is indeed strong enough to be capable of properly raising the inferences contended for it by the Crown.” Handy directs the review of various features of the evidence under this heading.
1. The potential for collusion
135I find that collusion is not a live issue on this Application. All of the similar fact evidence comes from M.H.
2. The strength of the evidence that the prior discreditable conduct actually occurred
136The proposed similar fact evidence comes from the evidence of M.H. so the strength of the proposed similar fact evidence is inextricably linked to my findings about the strength of her evidence overall.
3.Identification of “the Issue in Question”
137The Crown indicates the issues to which the similar fact evidence relates are what the Crown asserts is a situation specific propensity on the part of K.G. to exploit consensual physical contact with M.H. by using that physical contact to force her into unwanted sexual acts. Further, the Crown argues that the similar fact evidence supports the notion that K.G. had the necessary intent as evidenced by his conscious exploitation of consensual physical contact with the complainant to further his alleged goal of sexually assaulting her.
138Defence counsel argues that the proposed similar fact evidence is based on allegations that are distant in time from each other and, in some cases, occurred after the separation of K.G. and M.H. Further, defence counsel argues that the allegations are really not similar to each other in terms of the circumstances so it would not provide any assistance to the Court other than as highly prejudicial, general propensity evidence, which is presumptively inadmissible. Defence counsel also points out that only two of the four sets of allegations M.H. makes against K.G. involve consensual physical contact turning into forced sexual acts – the forced fellatio and the forced anal intercourse.
4. The similarities and dissimilarities between the proposed similar fact evidence
139The only similarity the Crown relies on is an assertion that, in each of the incidents, K.G. forced M.H. into non-consensual sexual activity which was preceded by consensual physical contact.
140This was not the evidence. In her evidence about the allegations of K.G. repeatedly having intercourse with her at night while she was sleeping, M.H. did not describe those acts as being preceded by consensual physical contact because she was asleep.
141In her evidence about the allegations of K.G. sexually touching her without her consent at her home after their relationship ended, M.H. was clear in her evidence that she did not engage in any consensual physical contact with K.G. on that occasion. In fact, immediately upon him approaching her, she backed away, to the point that her back was against the wall and then he began to touch her.
142It was only in her evidence about the one instance of non-consensual anal penetration and the repeated instances of non-consensual fellatio that M.H. described having first engaged in consensual sexual activity with K.G. prior to him forcing her into the unwanted sexual acts.
143It is also important to note that the way in which K.G. is alleged to have progressed from consensual sexual activity in each of those two sets of allegations is quite different in one versus the other. In the case of the alleged forced anal penetration, M.H. testified that they were having consensual vaginal intercourse when, abruptly and without a word, K.G. yanked her by her ankles to the end of the bed, flipped her onto her stomach and began inserting his penis in her anus, despite her protests. In the case of the alleged non-consensual fellatio, M.H. testified that K.G. would ask her, during sexual activity, to give him a “blowjob” and when she would say she didn’t want to, he would try to convince and cajole her and would then push her face into his crotch. M.H. testified that she would ultimately perform fellatio on K.G. to make him happy, because she was a “people pleaser.”
144As was noted in Handy , the drivers of cogency in relation to the desired inferences sought will not be the same in all cases. The degree of similarity required in the evidence “will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.” [16] Regardless of the issue in question, cogency increases as the facts move from the general to the specific.
145In this case, I find that to the extent that there is any similarity between the allegations, that similarity only exists in two of the four sets of allegations and so has no inferential value when considering the other two sets. Further, there is a significant difference between the way K.G. allegedly approached turning the consensual sexual activity into non-consensual activity in each of the two scenarios in which he is alleged to have done so. Lastly, to the extent that there is any real similarity, I find that it is nothing more than a generic similarity used to support an inference that the actus reus occurred. In arriving at this conclusion, I have considered the guidance provided in R. v. B.(R.) [17] :
The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.
146In this case, I find that the connection the Crown is asking me to draw is nothing more than a generic similarity. In other words, it is to be expected in sexual assault allegations involving parties who live together and are in constant contact with one another, the parties will often be in physical contact prior to the forcing of unwanted acts commencing. This will be the case in many cases of sexual assault in which the accused lives with or spends significant time with the complainant. Put another way, there is nothing about this fact being common in two of the four sets of allegations that suggests the objective improbability of coincidence.
Conclusion
147I find that the asserted similarities in M.H.’s evidence about the four different types of sexual assaults alleged against K.G. do not show a degree of connectedness and cogency that rises to a level beyond the generic. Further, there is at least one significant dissimilarity that renders the connection even more remote.
148I find myself in a situation similar to the one facing the Ontario Court of Appeal in R. v. B.(R.), in which the majority concluded:
In this case, the initial inference that can be drawn from the identified similarities in the appellant’s past conduct amounts to little more than that he has engaged in genital touching of children aged ten or under in the past, in circumstances involving privacy, and that following the sexual abuse, he may apologize to the child. Although not irrelevant, this inference contributes only marginally to determining whether the specific incident described by the complainant actually took place. [18]
149In the present case, I find that the initial inference that can be drawn from the identified similarities in the appellant’s past conduct amounts to little more than that he has engaged in unwanted sexual contact with the same woman in the past. Accordingly, as regards the analysis of the probative value of the proposed similar fact evidence, I find it is not sufficiently probative of the issues the Crown asserts it is relevant to.
150The Crown’s similar fact application is therefore dismissed.
The Evidence of M.H.
Bias
151Defence counsel argues that I should reject M.H.’s evidence because she was biased against K.G. and motivated to fabricate these allegations as a result of the way K.G. dealt with financial issues between them after their separation and because of infidelity on his part.
152Defence counsel points to the fact that there was a delay of roughly three years between the ending of the relationship and M.H.’s report of these allegations to the police. This is important, he argues, because the messages that she says her new partner, with her knowledge, sent K.G. in early 2021, from her Facebook Messenger account, seeking money from K.G. to cover what M.H. asserts is his financial obligation to her, conveyed a threat that if K.G. did not pay her money, they would have to “settle this in court.” K.G. did not respond to the messages and did not pay M.H. any money. Three weeks later, M.H. reported these allegations to the police and, in her police statement, mentioned the infidelity and financial complaints. Defence counsel points out that M.H. still seems to be upset about these issues today, some six years after the separation, as evidenced by her emotional outbursts in court.
153I agree with defence counsel that M.H. displayed a bias against K.G.. While this is certainly understandable on some level, given the allegations she makes, I note that she seemed to try to put extraneous negative information about K.G. before me. For example, shortly after she began testifying in examination-in-chief, she was asked why she called the police in February, 2021, over three years after her relationship with K.G. ended. The question she was asked was about her mindset when she chose to report after that period of delay. M.H. began her answer by explaining that she entered into a new relationship proximate in time to reporting the allegations to the police. She explained that her new partner helped her get back to her true self and helped her access counselling, both of which were important steps that helped her get ready to report.
154Then, M.H. said that she “just got tired of people getting away with things.” Immediately after that, she attempted to give evidence about issues between K.G. and his ex-wife, who he was married to before he started his relationship with M.H. M.H. was clearly trying to suggest that there had been untoward, possibly violent conduct by K.G. towards his ex-wife. M.H. actually premised her comments about this other relationship by saying “and I know it’s not relevant to this case.” When I intervened and told M.H. that I could not hear such evidence, she began voicing protest, interrupting me and speaking over me in an effort to continue to give the evidence.
155I want to be clear that I do not find that M.H. displayed a bias because she interrupted me and spoke over me. I understand that tensions can run high for witnesses in court and that witnesses may not necessarily understand what level of decorum is expected in court and it may need to be explained to them. I take nothing from this. What is important is the persistence with which M.H. approached her clear intention to shed K.G. in a negative light, over and above the allegations she was making against him.
156I also note that, when defence counsel suggested to M.H. in cross-examination that she was still angry about K.G.’s infidelity three years later when she reported her allegations to the police, M.H. responded with “no, I’m just tired of him getting away with everything.” That was the second time M.H. had referred to K.G. “getting away with” something. Again, on one hand, assuming the allegations are true, it is not surprising that M.H. would have animus and a bias against K.G.. Perhaps, in that case, she would be referring to the fact that K.G. sexually assaulted her as on the list of things he “got away with.” However, at no time can I assume the allegations are true as that would have the effect of shifting the burden of proof onto K.G. to prove that they are not. I note that this comment about being tired of him getting away with everything was made in the context of explaining why she went to the police at the time that she did, which was on the heels of demanding financial compensation from him which was not forthcoming. M.H. also commented in cross-examination that K.G. had “ruined [her] name.”
157A further example of what I find to be bias on the part of M.H. is found in her evidence about the Facebook Messenger posts that were sent from her account to K.G. on January 19, 2021, after what appears to have been no communication on Facebook Messenger between M.H. and K.G. for the previous two years. In the January 19, 2021 messages, M.H. appears to be demanding money from K.G. failing which she would “settle this in court.” When asked about this in cross-examination, M.H. said that it was not her who had sent these messages but her new partner, using her account and under her name. As defence counsel tried to clarify her evidence on this point, M.H. deflected away from his questions and, instead, repeated that her partner was simply “trying to find out what kind of man K.G. was” and that what he learned was that K.G. is not an honest, forthcoming man. She seemed to be basing this conclusion about what her new partner learned on the fact that K.G. did not answer the January 19 and 26, 2021 Facebook Messenger messages in which he was told he would have to pay money or the matter would be “settled in court.” I find that M.H.’s answers in this part of her cross-examination were unresponsive to the questions she was asked and, again, they seemed designed to assassinate the character of K.G..
158M.H. was asked the simple question in cross-examination of “wasn’t it the case that at some point in the separation in 2017 (K.G.) moves out to a rooming house?” She answered with “so he says.” This was an indication to me that M.H. was not prepared to adopt even an innocuous piece of information as possibly being true simply because the information had come from K.G.. In my view, she was trying to cast doubt on everything related to K.G.. I have concerns about M.H.’s credibility as a result.
Demeanour
159I noted that M.H.’s demeanour changed quite dramatically between examination-in-chief and cross-examination. First, I will review my observations of M.H. during examination-in-chief.
160When she began testifying in examination-in-chief, M.H. seemed very nervous. She was taking deep breaths, seemingly in an effort to calm herself and had a quaver in her voice when she spoke. M.H. testified outside of the courtroom, in the CCTV room and, at one point, when I explained to her that I had to turn off the link to the CCTV room to discuss something with counsel, she asked whether she had done something wrong.
161When speaking about the allegations relating to K.G. having sex with her while she was sleeping, she began openly weeping, to the point of sobbing. She was also crying hard when describing how she felt after the anal penetration incident.
162At one point, still in examination-in-chief, M.H. stood up from her chair in the CCTV room to demonstrate, using her body and her hands, how she said K.G. had touched her during the blanket incident. When I stopped her in order to describe, for the record, what she had done, she apologized, somewhat profusely and then said “sometimes, I have problems with words…” As I pointed out to M.H. at that time, there was nothing for her to apologize for. She had done nothing inappropriate. Further, as I told her, it did not seem to me as though she was having any difficulty at all expressing herself. M.H. apologized again when she had to swear in quoting something she said K.G. had said to her.
163I observed that when M.H. was not crying during her evidence in examination-in-chief, she was often sniffling and wiping her eyes and her breathing was ragged. When the Crown asked her how she felt during the alleged incidents of forced fellatio, she whimpered when she said “horrible” and then began crying again, to the point of sobbing, after saying that she felt scared and alone. She began fidgeting with her hands and tearing Kleenexes and paper into strips in the witness box.
164In cross-examination, M.H.’s presentation changed dramatically, almost immediately upon cross-examination beginning. M.H. was overtly hostile toward defence counsel when he began asking questions about the ending of her relationship with K.G. and her perception that she had been left with an unfair share of the debts. M.H. appeared angry. She raised her voice and she began speaking quickly and excitedly.
165Shortly thereafter, M.H. became dismissive and sarcastic. She made statements such as “oh my God” when referred, for example, to her police statement or when asked whether her new partner had been using her phone to send the Facebook Messenger messages to K.G. in January, 2021, using her account.
166M.H. then began speaking over defence counsel and, when I asked her to stop doing that, she responded that defence counsel was “really getting on [her] nerves.” M.H. told defence counsel that she did not like the questions he was asking her and then said she did not think that he should be able to suggest to her that she was upset, when she reported these allegations to the police, about the debts she believed K.G. owed to her. I explained to M.H. that she needed to answer the question, and that unless I told her she did not need to answer a question, she should assume that the question was a proper question and she should answer it. M.H., in response, expressed the view that if she did not “feel comfortable enough,” she did not need to answer the question. I tried to explain to M.H. again that she needed to answer all legally permissible questions and why and she responded with “this is ridiculous.”
167It is important to note that, at this point in cross-examination, M.H. was not being asked probing questions about what could be assumed to be sensitive areas of her evidence about the actual alleged sexual assaults. These were questions posed to her about her financial dealings with K.G., after their separation, some six years before. It is also important to note that the questions were posed to her in a calm, steady and quiet manner by defence counsel. There was nothing even approaching aggression in his tone.
168In marked contrast to her evidence in examination-in-chief, when the questions in cross-examination turned to the actual allegations, and specifically to the allegations relating to K.G. having intercourse with M.H. while she was sleeping, M.H. had no difficulty getting through the answers as she had in examination-in-chief. She did not cry as she had in examination-in-chief. Instead, she was sarcastic and combative. For examples, when the relatively simple and quite relevant suggestion was put to her that she was “waking up when [she was] on a very strong medication, right?”, M.H.’s answer was “Oh my God. I was – yes, sure.”
169I do not point out these observations by way of assigning blame to M.H. or because I was offended in any way by the hostility she directed towards me. That is not the point. The point is that M.H. was angry and offended that her account was being challenged, even on peripheral issues. Further, she admitted that she remains “upset” with K.G. over the way their relationship ended, six years ago, even after having moved on with a new partner and being settled in a stable and happy relationship with that person. M.H.’s presentation during cross-examination made it clear how upset she remains with K.G. and, when combined with my earlier comments about the clear bias I find she has against him, it raises serious concerns about her credibility. Lastly, her attitude changed so abruptly and dramatically from examination-in-chief to cross-examination that I find that the concerns that I would normally have about relying on demeanour evidence are attenuated.
170Typically, judges are cautious about evaluating a witness’ credibility based on subjective measures such as the degree to which the witness maintains eye contact, the witness’ posture, body language, pauses while testifying or displays of emotion or lack thereof. This is because such evaluations can be based on incorrect assumptions about how a person who had actually gone through the events in question would actually behave when talking about them in court. These incorrect assumptions do not allow for variations in personality between individuals or cultural variations, for example. So, when considering M.H.’s demeanour in court, it is not that I found her presentation in either examination-in-chief or in cross-examination in and of itself lead to credibility concerns on my part, it is the dramatic shift in attitude from one to the other. In examination-in-chief, M.H. was timid, apologetic, openly weeping, having a difficult time getting through her answers and described herself as a “people pleaser.” In cross-examination, she presented in exactly the opposite way.
Balance
171I find that there were also aspects of M.H.’s evidence that supported her credibility. At times, her evidence seemed balanced in that she had opportunities to embellish her evidence to make a situation sound much worse than she was describing. For example, M.H. was asked in cross-examination whether there was any violence inflicted upon her during the forced fellatio incidents beyond the violence inherent in forcing a person to do that against her will. She was asked whether K.G. punched her or slapped her during these incidents. This was an opportunity for her to embellish her evidence, to the detriment of K.G.. However, M.H. answered “no, there was no punching and slapping, but it doesn’t mean what he did wasn’t wrong, just because he didn’t punch or slap me.” I found this evidence to be even-handed.
172Similarly, when defence counsel suggested to M.H. in cross-examination that the incident in which K.G. penetrated her anus with his penis was very brief, she agreed. Again, she could have embellished her evidence and said that K.G. had sex with her, despite her protests, for a lengthy period of time, but she did not.
173However, this piece of evidence in cross-examination, though seemingly even-handed, was problematic in my view, because it was inconsistent with M.H.’s own evidence from her examination-in-chief. In examination-in-chief, M.H. testified that after penetrating her anally with his penis, K.G. continued to have anal sex with her, despite her “crying and freaking out” for a few minutes, until he “finished.” This is inconsistent with her answer in cross-examination that the penetration was brief.
Defence submission about consent
174Defence counsel argues that, with respect to the forced fellatio allegations, M.H. testified that she was a “people pleaser” and would perform fellatio on K.G. to make him happy. Defence counsel points out that M.H. did not express a lack of consent to K.G. to this activity and suggested that M.H. merely regretted later consenting to the sexual activity and that this did not qualify as a lack of consent at the time.
175I disagree with defence counsel to whatever extent he suggests that M.H. not expressing a lack of consent to participate in fellatio is dispositive of the issue of consent. The Supreme Court of Canada reaffirmed in its decision in R. v. Barton [19] that consent:
for the purposes of the actus reus … means “that the complainant in her mind wanted the sexual touching to take place.” Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent –plain and simple. At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established.
For purposes of the mens rea , and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused. Hence, the focus at this stage shift to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions.” [citations omitted]
176Turning to the present case, the first question that must be answered is whether the Crown has proved, beyond a reasonable doubt, that M.H. subjectively, or in her own mind, was not consenting to performing fellatio on K.G.. I find that I am not able to determine, on M.H.’s own evidence, whether, in her mind, she was consenting or not. On the one hand, the first time M.H. referenced the fellatio incidents in her evidence, she said that she performed fellatio on K.G. even though she didn’t want to at times, because he was persistent in asking and she wanted to make him happy because she is a “people pleaser.” [20] In my view, while this is not indicative of resounding or enthusiastic consent, it is consent nonetheless. On the other hand, later in her evidence, M.H. described a situation in which she “ended up” performing fellatio, even though she didn’t want to, because K.G. held her face in his crotch area and got angry and so she did it because she doesn’t like conflict. [21] She went on to say that she tried to get K.G.’s hand off of her head by doing a head butt type of manoeuvre but that was not effective so she “gave up trying to fight him [and] just did what he had wanted me to do because it was the only way I could get him away from me.” [22] This is clearly not voluntary consent on the part of M.H.
177Given the lack of clarity in this aspect of M.H.’s evidence, combined with my overall concerns about her credibility and reliability, I am not able to find, beyond a reasonable doubt, that she did not consent to performing fellatio on K.G..
Inconsistencies
178In terms of the allegations of forced oral sex, defence counsel points to inconsistencies between M.H.’s initial written statement to the police, her subsequent video statement, and her evidence in court. For example, she told the police that forced oral sex was first in time but in court, she testified that the instances of her being woken up in the night to find K.G. on top of her, having sex with her, were first in time. I agree with defence counsel that this is an inconsistency in M.H.’s evidence.
179I also noted that M.H. would sometimes flip, in her answers, from speaking about a specific incident that she alleged occurred, to making general statements about K.G. essentially engaging in the impugned conduct “all the time.” The following passage from the transcript of M.H.’s examination-in-chief illustrates this point:
Q. So, you’ve told the court about those, the incident of him waking, or you waking up with him on top of you and also this incident that you just said [the anal penetration incident].
A. Yeah.
Q. Is there any other incidents that you can recall?
A. There was an instance when we were being intimate and he asked me to give a blowjob, I didn’t want to, but he pushed my, he pushed my head like down towards his crotch and held my head there, and he’s like, “Come on, come on, just do it.” And eventually I ended up doing that but I didn’t want to, and then when, uh, I tried to put it out of my head and just like think of something else while I was doing, because that’s the only way I can, I was able to, I, I went somewhere else, if you know what I mean, when just stuff like that happened. I don’t know if I’m making sense. But, yeah, he, he would force me to do oral all the time too.
Q. Okay, how did he force you to do it?
A. He would shove my head down, “Oh, come on, you know you want to. Oh, come on. Don’t you want to make me happy? Ah, come on, you can do it.” And then he’d start getting angry, and well at that point – but I don’t like conflict, I’m not a person that likes conflict at all, so I just when, when that started happening, I just started like closing myself off, if that makes any sense.
Q. So, when you say he forced you to do oral, can you just describe what you mean by that?
A. He would grab my hair by the ponytail and shove my face right into his crotch. There are times when he was naked doing it, and there were times when he was like, he had shorts on or pants on.
Q. And what did you do when he grabbed your ponytail and shoved his....
A. I tried to get awa(sic), like tried to like move my head like this, like get, like to, like he’s holding my head like this and I, I kind of like tried to head butt him a bit, to just try and get him to let go of my hair.
MS. NASSAR: Q. Okay, so what happens when you would try to head butt him?
A. Nothing, every time I tried do to that he would push my face down harder, so then I just, I, I gave up trying to fight him. I just did what he had wanted me to do because it was the only way I could get him away from me.
Q. Did you say anything to him?
A. I told him I didn’t want to do it, that I, I was, I didn’t want, I wasn’t in the mood, I didn’t want it, you know, I said you’ll have to wait, maybe tomorrow, I don’t know. I don’t know when I’ll be in the mood, and he proceeded to get angry with me over that. He’d say cuss words to me and be like, “Oh, come on, any girl would want to be with me.”, and all this, just all that type of stuff.
Q. Did he say or do anything when you told him, no, you were not in the mood?
A. He’d push my head further down, or he’ll try and like brush up against me and be like, “Ah, come on, you know you want it.” And it’s like, uh, no I don’t. He, he, he doesn’t like to be told no.
Q. Okay. How, how did you feel when that was happening?
A. Horrible. Uh, it just, it ruined my whole perspective of our relationship, and I felt stuck. I didn’t know what to do. I didn’t know where to turn. I had no real friends because they didn’t like him. My family wasn’t really around because they didn’t like him, so like I was, I was scared and alone. He made me feel worthless, like I was just a, like an object.
Q. Did you ever tell him that?
A. Yes I did, and he said he didn’t care that whatever, the only thing that, uh, means anything is that he gets what he wants.
Q. So that, this incident that you just told us about, where he forced you to perform oral, do you know when that would have happened?
A. Around 2013.
Q. Okay, and what, what makes you think that?
A. Because it was roughly after, um, it was a few years after we had moved into 206 Alice and, yeah, it was a few years after that. [emphasis added]
180I find this switching between speaking about a specific instance of an alleged sexual assault and speaking in general terms about K.G. “doing it all the time” was problematic and negatively impacted the overall credibility of M.H.’s evidence. It made her evidence difficult to follow at times and, ultimately, I find that I cannot put much weight on evidence when it is not clear to me whether the witness is making general, broad sweeping statements or providing details about a specific incident.
181Defence counsel argues that M.H. did not mention to the police in her written statement, the allegations relating to K.G. having intercourse with her in the night while she slept. Nor did she mention in either her written or video statement that she was sometimes left bloodied and/or bruised after these incidents. Defence counsel argues that these omissions are significant and demonstrate a lack of credibility.
182M.H. explained that she did not mention the instances of her waking up in the night to find K.G. having sex with her to the police because she “didn’t know what to write at the time” and was “still trying to [get] her mind together.” M.H. said that she added her account of these incidents when she gave her video statement two days after providing her written statement because the officer told her that the video statement was to be about “all the episodes that [they’d] had.”
183While an omission does not always equate with an inconsistency, in this case, I find it difficult to understand why M.H. would not have included the allegations of K.G. having sex with her in the night while she slept in her first report to the police. It is those sexual assaults that allegedly occurred most frequently. They were arguably the most invasive. M.H. testified that the sexual assaults while she slept were the reason she broke up with K.G.. Given all of that, I find it inconsistent that M.H. would not have had these alleged sexual assaults at the top of her mind when making her first report to the police.
184Defence counsel argues that, if M.H.’s evidence is accepted that the blanket incident happened in October, 2017, her credibility is cast in doubt by the Facebook Messenger messages that she and K.G. exchanged in December, 2017 which seem to be friendly. Defence counsel argues that M.H.’s friendly tone in December, 2017 is inconsistent with someone who was assaulted in her own home, by the person she is being friendly towards, only a few weeks earlier.
185I do not agree with this submission. First, I find that it invokes one of the myths and stereotypes that must be guarded against in the analysis of evidence in a sexual assault case in that it presumes that there is some sort of preordained, universally accepted way that a “real” victim who has truly been sexually assaulted will behave afterwards. It is a myth that all victims of sexual assault will immediately, permanently and forcefully end all contact with the person who sexually assaulted them. Second, I find that M.H. is not actually all that friendly in the messages exchanged with K.G. in this time period. Third, M.H. described herself as a “people pleaser,” a description that K.G. agreed with. M.H. also testified that she does not like conflict. E.G.G.’s evidence supports the notion that M.H. did not engage in open conflict with K.G.. Fourth, M.H. testified that she tried to stay on K.G.’s “good side” and, from a practical perspective, it makes sense that she needed to try to stay on K.G.’s “good side” in order to try to resolve the financial issues, including getting him to pay his half of the joint debt they owed to Easyhome.
186Defence counsel argues that M.H.’s account of the blanket incident as told to the police in her video statement was inconsistent with her evidence in court because in her police statement she described K.G. as trying unsuccessfully to fondle her near the door to the home and ultimately managing to fondle her while she headed towards the wall. In court, she did not testify that K.G. attempted to fondle her before ultimately being successful. She said that he approached her and, as she was backing away from him, her back ended up against the wall in the outer porch area of her home, between an exterior door to the porch and an interior door to the house.
187I do not agree that there is much to be taken from the inconsistencies in M.H.’s evidence on this point. I find that there is no material difference in the account M.H. gave to the police about the blanket incident and her evidence in court. If it happened the way M.H. described it, it would have happened very quickly, in the context of an otherwise relatively innocuous visit, and it would therefore not be surprising if M.H. could not remember exactly where in the room she was positioned when specific things happened, for example.
188With respect to M.H.’s evidence in court about the anal penetration incident, defence counsel argues that her evidence is inconsistent. In her written statement to the police, M.H. said that she was pushed face down on the bed before being anally penetrated. She did not reference being flipped over from her back to her front. In her video statement, she said she was flipped over but did not reference her face being pushed down into the bed. In court, she said she was pulled down to the end of the bed by her ankles by K.G., flipped over from her back to her stomach, had her face pushed into the bed and then K.G. penetrated her anally.
189When questioned about these inconsistencies in cross-examination, M.H. became hostile towards defence counsel and said that she was stressed out when giving her police statement and that it is hard to remember every single thing when stressed like that. While I accept M.H.’s explanation to a certain extent, I am troubled by this inconsistency. I do not see it as a minor inconsistency. K.G. allegedly pulling her by her ankles down the bed and flipping her over onto her stomach is a key part of the mechanics of the act as she described it in court. Given that M.H. described it in court as having happened quite abruptly in the middle of a consensual sex act, I find it surprising that this detail would not be at or near the front of her mind when reporting the same incident to the police for the first time.
190M.H. described herself as being a “people pleaser”, especially when it came to K.G.. She pointed to the fact that she stored his e-bike for him after the separation as being because she is “a nice person” who likes to “make everybody happy whether it makes me upset or not.” This was inconsistent with M.H.’s evidence that when K.G. moved out of their home, after the breakup, and into a rooming house, she agreed that she did not allow him to take any property or items with him. K.G. did not even have a blanket. M.H. said “I wasn’t letting him take anything, he’s the one that left without like notifying me of anything at the time. No, I was keeping everything.”
191This is not to suggest that M.H. is somehow a bad person because she elected to take a firm stance on what she would allow K.G. to take from their shared home when he moved out as a result of the way he had conducted himself in leaving her. It is to point out that this firm stance and having no difficulty standing up to K.G. is in contrast to M.H.’s evidence that her role was to please him and keep him happy, even after they broke up.
Reliability
192Defence counsel argues that M.H.’s evidence should be rejected because of the effects of her mental illness, the medication she was taking at the time of the events, or both. M.H. testified about the impact of Trazodone on her, including the fact that it made her feel groggy. Defence counsel argues that the Trazodone may have had an impact on M.H.’s recollection of the events around the intercourse that took place in the night after she had taken Trazodone, including the fact that she had actually consented to it.
193I agree with the submission that M.H.’s capacity to accurately observe and record memories of events while she was under the influence of Trazodone was significantly reduced. I find this negatively impacts the reliability of her evidence relating to the allegations that K.G. had intercourse with her while she was sleeping after having taken Trazodone.
194My concerns are based on the following evidence from M.H.:
a. She was on the highest dose of Trazodone possible. It was prescribed because she had problems falling asleep and staying asleep throughout the night and also to help with her bipolar disorder;
b. She would at times wake up and K.G. would allegedly be on top of her but “because of the Trazodone [she] wasn’t functioning properly”;
c. The pill would usually “totally knock [her] out” and that it “knocks [her] right out”, that she “wasn’t [herself] on it” and that “it makes [her] a bit foggy”;
d. If she had to wake up in the middle of the night, she felt like an astronaut or the Michelin tire man. She felt very “frumpy and groggy”;
e. Trazodone made her very groggy in the morning;
f. Friends came to her house in the middle of the night one night to wake her up and get her out of the house because there was a fire in a building very close by. Smoke was “apparently” going into M.H.’s house (implying that she was not aware of this at the time but was told later as the story was recounted to her by the friends who tried to get her up and out). M.H. got up, answered the door, spoke to her friends and told them that she was tired and was going to bed. Her friends told her she needed to get out of the apartment. She told them no, went back into her home, locked the door and went back to bed. She had no recollection of these events afterwards and her knowledge of the incident is based solely on what others told her about it;
g. All the above-noted evidence came out in examination-in-chief. In cross-examination, when asked whether it was possible that, when waking up after taking Trazodone, it may have looked to others like she was awake and moving around without her actually being fully alert, she said she didn’t know. She was asked whether in that state things could have been said back and forth between herself and K.G. that she does not now recall and she said “not that I know of”; and
h. She said “…when I take the Trazodone I’m not coherent. You can have a conversation with me, but the next day, or the next morning I wake up, I don’t even know you’re, you were having this conversation….”.
195I also note that M.H. testified that she has trouble remembering when the incident of anal penetration occurred “because of [her] meds [she’s] bad with dates.” I do not know which medications M.H. was speaking about when she made this comment nor do I know to what extent those medications have affected her memory of any or all of these alleged events.
196I want to be clear that I am not suggesting that any of these points, standing alone, would be sufficient to shake my confidence in M.H.’s credibility and reliability. Some of these points are more concerning than others. I also understand and accept M.H.’s evidence that she was under significant stress when speaking to the police. I am pointing to these indications of bias, changes in demeanour while testifying, inconsistencies and issues with M.H.’s ability to observe and recall events as examples of why, when I consider the overall credibility and reliability of M.H.’s evidence, my concerns lead to the conclusion that I cannot rely on her evidence to prove the case against K.G. to the very high standard of beyond a reasonable doubt.
Conclusion
197I do not entirely accept K.G.’s denial that he engaged in sexual activity with M.H. while she was asleep and under the influence of Trazodone. I do not entirely accept K.G.’s assertion that every time M.H. performed fellatio on him, she was consenting to it. I do not entirely accept K.G.’s explanation that when he penetrated M.H.’s anus with his penis, it was an accident. I do not entirely accept K.G.’s denial that he grabbed M.H.’s breasts and crotch when he went to her home to borrow a blanket. However, I am not in a position to completely reject any of these denials or explanations either. After a careful consideration of all of the evidence tendered in this case, I am simply not able to determine whether K.G. is telling the truth or not. He must be acquitted on that basis alone.
198However, even if that was not the case, and I was sure that K.G.’s evidence should be rejected, I would not find him guilty beyond a reasonable doubt based on the evidence of M.H. and E.G.G. because of the problems I identified with the credibility and reliability of M.H.’s evidence. I do not accept it as proof beyond a reasonable doubt of K.G.’s guilt.
199K.G. will be found not guilty on all three counts.
Justice L. Bramwell Released: February 21, 2024
COURT FILE NO.: 21-93 DATE: 2024/02/21 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – K.G. REASONS FOR JUDGMENT The Honourable Justice Lia Bramwell Released: February 21, 2024