COURT FILE NO.: CR-23-10000293 DATE: 20250228 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – BERNIE BOGLE Defendant David Parry , for the Crown Jason Rabinovitch , for the Defendant HEARD: February 10, 11, and 13, 2025 Pursuant to s. 486.4 (1) of the Criminal Code there is an order that any information that could identify the Complainant shall not be published in any document or broadcast or transmitted in any way. Rhinelander, j. REASONS FOR DECISION Overview: [ 1 ] Bernie Bogle is charged with one count of sexual assault upon E.B., on or about October 29, 2021, contrary to section 271 of the Criminal Code of Canada . The three essential elements of a sexual assault that must be proven beyond a reasonable doubt are: i) the defendant knowingly touched the complainant; ii) the touching was of a sexual nature; and iii) the complainant did not consent to the sexual contact. [ 2 ] E.B. and Mr. Bogle were unknown to each other prior to that date. There is no issue the parties engaged in sexual activity. The sole issue is consent. [ 3 ] E.B. testified she did not consent to any sexual activity with Mr. Bogle. Mr. Bogle testified the sexual activity between the parties was consensual. As with many trials of this nature, the central issue in determining consent is the credibility and reliability of the witnesses when analyzed through the framework of R. v. W.(D.) , 1991 93 , based on the criminal burden of proof. [ 4 ] A criminal trial is not a credibility contest, in which the Court picks the version of events it prefers more. Nor is it a question of which version the Judge thinks is more likely. Rather, the question in this case is whether the Crown has established beyond a reasonable doubt that Mr. Bogle is guilty of the offence charged. To be clear, the trier of fact’s task is not to choose between the two competing versions of events: R. v. S. (J.H.) , 2008 SCC 30 , [2008] 2 S.C.R. 152, at para. 9 . If after a careful consideration of all the evidence, I am not sure beyond a reasonable doubt if Mr. Bogle committed the offence, then I must find him not guilty. [ 5 ] The reliability and credibility of E.B. and Mr. Bogle are crucial issues. I must also assess other evidence before the Court, including the video footage presented and the Agreed Statement of Facts, to determine to what extent this evidence assists the prosecution in meeting the high burden required to base a conviction. Summary of the Evidence: E.B.’s Evidence [ 6 ] E.B. was 32 years old at the time of this incident. She was born and raised in Halifax, Nova Scotia. She relocated to Vancouver and then resided in Toronto since 2017. [ 7 ] That evening E.B. had plans to attend a bar near her residence with some friends from work to celebrate Halloween. E.B. dressed as a unicorn. She wore a pair of black Lululemon running tights, white knee-high socks with pink stripes, Nike sneakers with pink checkmarks, a multi-coloured tutu, a pink tank top, and a unicorn headband. The clothing description is pertinent to identifying E.B. on video footage. [ 8 ] E.B. arrived at the bar between 11 p.m. and 11:30 p.m. She met up with her friend Steven, gave him a hug, went to catch up and got a drink from the bar. E.B. confirmed the only person in the group she knew was Steven and she met the others for the first time that night. [ 9 ] E.B. estimates she was at the bar for about three hours. During that time, she had five shots of tequila and approximately three vodkas with either seven-up or water. She rated her level of intoxication between a 4-5 on a range of 1 to 10, with 10 being the highest level of impairment. E.B. confirmed at that time she would regularly go out more than once a week and would have between 8 to 10 drinks each time. She was aware that alcohol has effects, including balance, speech, perception, and interpretation of different scenarios. When asked questions in cross-examination, she agreed she could not be sure how many drinks she had that evening, as others were also buying drinks for the group at the bar. It may have been an additional tequila shot or vodka, but she was confident it was around 8 drinks. [ 10 ] E.B. testified the group went to an after-hours club and arrived around 2:30 a.m. She was unsure of the time as she does not remember looking at her watch. She described the club as a “grungy basement”. It was not very large and had two areas. The larger area had a dance floor, a couch, and a pole. The other room had a bar, and a unisex single washroom off to the side. There were approximately thirty people there. [ 11 ] E.B. believed she met Mr. Bogle about ten minutes after they arrived at the club. He offered to buy her a drink which she accepted. He asked her to dance, and she declined. They had small talk and she expressed she was not interested in him and was there with her friends. In cross-examination, she agreed she may have told Mr. Bogle she was waiting for a male to meet her at the club. She was unable to explain why she would have said that but was unable to deny she did. [ 12 ] E.B. next saw Mr. Bogle at the bathroom. She described the bathroom like one you have in your house. Mr. Bogle was standing in the doorway as she went to close the door. She was unable to recall if he said anything to her. When asked about the expression on his face, she advised she did not get a good look. She said he just stood there, and it made her feel very uncomfortable and creeped out. E.B. closed the door and used the bathroom. Mr. Bogle was not there when she exited the bathroom. E.B. did not recall seeing him again in the club, however, believed she saw him a total of three times. E.B. stated Mr. Bogle told her she looked cute and that the person she was with did not deserve her. E.B. repeated she was not interested and that she was there with her friends. [ 13 ] E.B. agreed with counsel for Mr. Bogle that she felt very uncomfortable by Mr. Bogle’s advances, that she made it very clear to him she was not interested, and it felt like he was stalking her. She agreed she felt like she was in danger, and he was not accepting her telling him “No” when she said she did not want to dance. E.B. agreed she did not express her concerns to anyone in her group, including her friend Steven. [ 14 ] E.B. told the group she was leaving. When asked if anyone offered to walk her out, she initially testified they did but she declined. When pressed on who offered to walk out, she replied “Steven”. She advised he offered to come outside and wait with her. She agreed she told the police the only person she knew in the group was Steven. On cross-examination, it was suggested she had told the police Steven was “dismissive” when she told him she was leaving. She clarified that when she told him she was leaving, he responded “okay, whatever”, and perhaps dismissive was not the term she should have used. She agreed she did not tell the police Steven offered to walk her to safety or express concern for her. [ 15 ] E.B. decided to leave the club around 4:30 a.m. She had only one drink at the after-hours club, the drink Mr. Bogle had bought her. She was able to walk, was aware of her surroundings, and maintained her level of intoxication was at a 5. In cross-examination E.B. stated at that point she just wanted to get home and back to her safe space where she felt comfortable. She no longer felt comfortable at the after-hours club, it was a “dingy gross place”. She agreed the creepy feeling, the lack of feeling safe, feeling uncomfortable and the concern for her safety was based solely on her interaction with Mr. Bogle. [ 16 ] E.B. confirmed no one else had intruded on her space or stalked her. She did not need to tell anyone else at the club to leave her alone. Getting away from Mr. Bogle was one of the reasons she decided to leave, in addition to being tired and wanting to go home. When pressed on why she wanted to go home, E.B. agreed it was to get to her safe space and away from Mr. Bogle. [ 17 ] She left the club alone and intended to order an Uber. In examination in chief, E.B. testified another female in the group left before her and they all went out to make sure she got safely in her Uber. E.B. believes she left about fifteen minutes after the other female. In cross-examination, E.B. could not recall if the person left in an Uber before or after they went into the club, but the female was the first to leave. [ 18 ] E.B. had the App open on her phone to order an Uber and planned to meet the Uber on Queen Street. She advised to get to Queen Street she needed to walk through a huge parking lot beside the club. As she was walking through the lot, she heard someone call out “hey, hey you”. E.B. went over to the car despite realizing the driver was Mr. Bogle. He offered her a ride and she accepted. E.B. explained where she is from it is not unusual to accept an offer of a ride, even from a stranger. E.B. had never accepted a ride in Halifax from someone she wanted to avoid. E.B. decided the ride was right there and she had already advised Mr. Bogle she was not interested in him. Her expectations were that he would drive her home. E.B. agreed she got in the car despite the fact Mr. Bogle was the person she was trying to avoid, and a reason she left the club. E.B. agreed she had never accepted a ride from a stranger when living in Vancouver, but it was late, she just wanted to get home, get to her safe space where Mr. Bogle would not be. [ 19 ] Mr. Bogle drove a few meters forward in the parking lot and then pulled into a parking spot. E.B. commented that was not the way to her house. E.B. went to reach for the door, when Mr. Bogle slapped her hand down, and pulled the seat lever on the right side of her door, causing her seat to recline. [ 20 ] According to E.B., Mr. Bogle said E.B. deserved to be treated like a queen and to be with someone better than she was with. Mr. Bogle then took down her pants and inserted two fingers into her vagina. E.B. told him to stop repeatedly. She was scared and frozen and just wanted this to stop. E.B. did not recall if she had said anything before this happened. E.B. was unable to say whether Mr. Bogle said anything because she was not really listening, she kind of blurred things out. E.B. said he stopped after about two minutes. E.B. does not know what made him stop but that is when he inserted his penis inside her vagina. E.B. did not want either action to happen. [ 21 ] E.B. only recalls telling Mr. Bogle to stop and thinking how to get out of the situation alive. After he inserted his penis in her vagina and she was repeating “no, stop, no stop”, he just suddenly stopped and suggested they finish this at her house. [ 22 ] It was suggested to E.B. that the parties kissed. E.B. did not remember kissing but was clear she would not have kissed Mr. Bogle. E.B. was unable to recall if Mr. Bogle kissed her vagina. She indicated if she had to guess he would have kissed her vagina between inserting his fingers and then his penis. E.B. was clear she remembered the fingers and penis because that was significant. E.B. agreed Mr. Bogle kissing or licking her vagina would be a significant act. She was unable to recall if Mr. Bogle performed oral sex on her. E.B. agreed it may have occurred, she just did not remember. [ 23 ] E.B. was asked if anything happened that made Mr. Bogle stop, whether anything startled or changed, and she said no. She agreed he stopped and suggested continuing at her place. She had not told him where she lived and maintained it was not something she wanted. [ 24 ] After he stopped, Mr. Bogle went back to the driver side. E.B. tried to open the passenger door and he told her it was fine he would drive her home. E.B. testified her pants were still down and she was trying to pull them back up. [ 25 ] Mr. Bogle did not know where she lived and E.B. provided directions to the general area. He drove her to the area of Queen and Ossington and when the car stopped at a traffic light, she jumped out and sprinted. The drive was approximately 8 to 10 minutes. E.B. did not try and flee the car at any point prior to arriving where she directed him. [ 26 ] E.B. was clear in examination in chief she did not consent to any of the sexual acts that night. E.B. used the term “fawned” at one point describing her reaction to what was occurring. In re-examination, E.B. explained it meant to freeze and that she froze in time. Mr. Bogle’s Evidence [ 27 ] Mr. Bogle is 41 years old, married and has two biological children with his wife. At the time of this incident, he and his wife were separated but living in the same residence and both were dating others. [ 28 ] Mr. Bogle came to Canada six years ago from Jamaica. He works in construction and restoration. He has no criminal record and no other charges before the court. [ 29 ] Mr. Bogle learned about an event at the after-hours club from a promoter who had given him a flyer. He lived outside Toronto and relied on GPS to find places. He was familiar with the general area as he had been to the Wendy’s on Queen Street in the past. [ 30 ] Mr. Bogle attended the after-hours club around 2 a.m. He described it as a small space and old. The music and vibe within the club was good. There was a small side with a VIP area and a pole. There was a dance floor, bar, and DJ. He estimated approximately 35 people were there. [ 31 ] Mr. Bogle stated when he first entered the club his eyes connected with E.B. and she smiled. He approached her and asked her for a dance. She took his hand, and he gave her a little twirl. Mr. Bogle demonstrated by putting his hand high in the air, about his head level, and twisted his hand as though spinning or twirling someone underneath. After she spun around once they laughed. They had never met before. After this exchange, he asked who she was there with. She replied, with friends and was waiting for another friend. He called over, “hi friends” to the group she had indicated. [ 32 ] Mr. Bogle offered to buy E.B. a drink and she agreed. They went to the bar, and he paid for her drink. Mr. Bogle had not had any alcohol before attending the club. They exchanged small talk. He left to avoid problems should the person E.B. was waiting for arrived. Mr. Bogle went to the other side of the club near the DJ booth. He spoke with a female on that side and danced with her. At some point he was thirsty and went to the bar. To get to there, he had to cross paths with E.B. He offered her another drink and they proceeded to the bar where he bought her a second drink. [ 33 ] Mr. Bogle described E.B. as fun and bubbly. In fact, the entire vibe at the club was good. [ 34 ] Mr. Bogle testified at no time did E.B. tell him she was not interested. He was adamant the incident described by E.B. near the bathroom did not happen. [ 35 ] Mr. Bogle left the club as things were beginning to break up. At the time, he was living in Caledon and driving a rental vehicle, a Toyota Corolla. As he was leaving in the car, he saw E.B. He rolled down his window and called out to her. She approached the car, and he asked if she wanted to hang out. E.B. asked where he lived, and he told her far. He asked where she lived. Mr. Bogle recalled she said “nearby” but had roommates or family or something. He asked if she wanted to chill, and he would drive her home. E.B. agreed and hopped in his car. Bubbly was the word he again used to describe her. [ 36 ] Mr. Bogle had turned into the laneway that opened onto a parking lot when E.B. entered his car. He drove forward and pulled into a parking spot where they talked for few seconds and asked each other about their evenings. E.B. told him her friend did not show up and he was a jerk. Mr. Bogle leaned towards E.B. and she kissed him. They exchanged kisses and he asked if he could kiss her breast and she agreed. [ 37 ] Mr. Bogle explained it was awkward positioning and he undid his seatbelt and stepped over the console to her side. He put the seats back. He described making out with E.B. and they were both enjoying it. He based this belief on sounds E.B. made. Mr. Bogle demonstrated by making moaning sounds in court. He inquired about lowering her pants and she raised or lifted her hips to assist. At no time did E.B. tell him to stop. Mr. Bogle kissed her vaginal area. He then put his penis in her vagina two times. On the second occasion, E.B. said stop. Mr. Bogle stopped. E.B. only said stop once and he did. Mr. Bogle denied vehemently that he inserted his fingers in her vagina at any time. [ 38 ] Mr. Bogle offered to drive E.B. home after she told him to stop. E.B. provided directions to where she lived. He made a U-turn at some point as she indicated she wanted to be on the south side of the street. They talked briefly before she got out of the car when she waved bye. [ 39 ] Mr. Bogle’s demeanour was different in cross-examination. At times, he raised his voice when answering questions posed by the Crown. He did not always answer the questions but instead answered what he wanted to answer and became argumentative. He responded at one point that his surname was big in Jamaica and for the crown to google a family member who is a national hero there. He repeated he was a Christian, his mother was a Christian lady, and he attended church regularly on Sundays. I infer this was all to suggest he is not the type of person to disrespect a woman. Later, when asked to comment on E.B.’s level of intoxication, his response was to suggest the Crown was asking a tricky question. When pressed, Mr. Bogle told the court the Crown was trying to make him say something that wasn’t right. [ 40 ] Mr. Bogle explained his animated demeanour and use of his hands is common for him when talking about things and to assist in explaining. [ 41 ] For the most part, Mr. Bogle was steadfast in his testimony regarding events at the club and he maintained how things unfolded within the after-hours club. Similarly, he repeated his version of what happened in the car. He was adamant E.B. did not try and exit the car when he pulled into the parking spot. He disagreed the sexual activity was not consensual. [ 42 ] There were inconsistencies elsewhere in his testimony. Mr. Bogle indicated in chief there were no pressing concerns for him to get up early that morning as he was not working that day and did not have the children. He described it as a “daddy’s” night out. Later, he said he needed to get home because he had the kids, and it was clarified the kids were at home. When asked about looking after his kids, he replied they were old enough to look after themselves and did not need his supervision. He then said it was Halloween and everyone was there and then reverted to having to be home to look after the kids. [ 43 ] Mr. Bogle was asked if after parking the car he turned the car back on. He was shown video footage where the rear lights can be observed flashing on and off. Mr. Bogle initially said he may have turned the car on because it was cold and turned it back off because it was hot. Ultimately, it was clear Mr. Bogle had no recollection why the rear lights and brake light came on at different points and eventually acknowledged he did not remember. This is an example of Mr. Bogle not answering questions and trying to guess where the Crown was headed to create his own path rather than simply answering the question directly. Other Evidence [ 44 ] Video footage was introduced that showed the back laneway, parking lot, Denison Avenue looking both north and southbound. E.B. is seen in the company of four others heading west thru the laneway to Denison. Her headband is visible, as are the white socks and black running tights. Also visible is a thigh length coat, open at the front, over her outfit. Footage from a different angle, show E.B. with the group standing on Denison beside two parked vehicles. One person opens the driver’s door, the rear driver side passenger door, and the box of the truck. Some of the group go to the rear of the truck near the box and stand in the roadway. It is unclear what was obtained from the rear of the truck. They can be seen standing near the vehicle for about 8 to 9 minutes. They are joined by three others after five minutes. [ 45 ] E.B., in the company of the same four individuals, is seen returning east towards the after-hours club. At no time while the group walked through the alleyway and congregated near the parked truck was another vehicle seen stopping to collect a female or any passengers. [ 46 ] Twelve minutes later, at approximately 4:39 a.m., E.B. can be observed walking westbound thru the parking lot by herself. She is in the same outfit and coat as seen earlier. A car driving southbound on Augusta Avenue towards Queen Street West is reversed. E.B. turned and walked approximately thirty steps towards the car which had turned into the laneway. E.B. entered the car and it proceeded west before pulling into a parking spot. [ 47 ] The vehicle remained parked for approximately three minutes. The footage does not provide a clear view of the interior of the car, however, movement from within is visible. Rear lights including the rear brake light in the rear window were observed activated when the car pulled into the spot, while it was parked, and when it reversed. [ 48 ] A pickup truck is seen driving westbound through the parking lot. It stopped two parking spots west of the car before turning southbound on Denison. A male pedestrian can also be seen walking in the laneway on the south side. He appears to pass the parked car, turn around and walk a few feet behind the car before heading eastbound. [ 49 ] Mr. Bogle reversed out of the parking spot and stopped in the laneway for approximately 10 to 12 seconds before proceeding westbound. While the car is stopped, movement is observed in the front passenger seat before the car proceeds forward. Upper body movement of the passenger is not insignificant. [ 50 ] The car proceeds to Denison where it turns left. The car stops at the stop sign before turning right on Queen Street. The rear lights and brake light in the rear window are visible when the car stops. As the car proceeds west on Queen Street, no rear lights are seen on the car. [ 51 ] Mr. Bogle was not arrested in relation to this incident until June 21, 2022, approximately eight months later. Police obtained registration information from the licence plate and were able to narrow down the driver. Police conducted surveillance on Mr. Bogle and seized a discarded cigarette butt that was submitted for DNA analysis. Testing revealed Mr. Bogle could not be excluded from the DNA located on the tutu E.B. had worn on that day. Position of the Parties: [ 52 ] The defence position is this is a straightforward matter addressing a single count of sexual assault where the only issue to be determined is consent. He summarized the evidence of E.B. and argued the court should have concerns regarding E.B.’s credibility and reliability but more so credibility. [ 53 ] In support of his position, he points to the evidence of E.B. and her expression of concern for her safety regarding Mr. Bogle, feeling creeped out, not interested in him, and wanting to avoid him at all costs. That her testimony is inconsistent with her actions of getting into the vehicle with Mr. Bogle and accepting a ride home. He argued this is so illogically improbable that it begs belief. [ 54 ] After summarizing the evidence of Mr. Bogle, he invited the court to accept his evidence as being consistent and unshaken. Where there were inconsistencies, these were on minor points regarding an incident that occurred three years ago. Mr. Bogle’s testimony makes more sense and if not accepted, should raise a reasonable doubt on the totality of the evidence. [ 55 ] The Crown position is Mr. Bogle’s evidence should be rejected in its entirety and is incapable of raising a reasonable doubt. He pointed to shifting answers provided by Mr. Bogle in cross-examination including words exchanged between E.B. and Mr. Bogle and her responses afterwards, including the removal of E.B.’s pants. Mr. Bogle could not keep his answers straight and tried to anticipate where the Crown was going. [ 56 ] The Crown made submissions that Mr. Bogle had a flawed understanding of consent. He found Mr. Bogle’s responses problematic and argued Mr. Bogle had a bold mindset. [ 57 ] In terms of E.B.’s evidence, it is the Crown’s position her evidence is easily reconcilable. He pointed to situations or circumstances where people exercise poor judgment when upset, the possibility of the effects of alcohol impairing judgment, and that E.B. was not mortally terrified by Mr. Bogle and did not have a great concern about him when she entered the car. What followed from there was E.B. “fawning” and she froze. [ 58 ] Having urged the court to reject Mr. Bogle’s evidence, the Crown made submissions the court should have no difficulty in reconciling what was going through E.B.’s mind that night and should be satisfied beyond a reasonable doubt of the guilt of Mr. Bogle. Analysis: [ 59 ] In this case there is no issue regarding sexual contact between E.B. and Mr. Bogle. The sole issue in the trial is whether that contact was consensual. [ 60 ] Mr. Bogle is presumed innocent. He remains innocent unless and until the Crown has proven the offence beyond a reasonable doubt. [ 61 ] It is not enough for me to believe that Mr. Bogle is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. Reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. Reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. It is based on reason and common sense and must be logically connected to the evidence or its absence. [ 62 ] Mr. Bogle testified in his own defence. He maintained all sexual contact with E.B. was consensual during his evidence in chief and in cross examination. The law is clear that if I believe his evidence, then I must acquit. Moreover, even if I do not believe Mr. Bogle’s evidence, I must consider whether I am left with a reasonable doubt by his evidence. If so, then I must acquit. Finally, even if I am not left with a reasonable doubt by Mr. Bogle’s evidence, I must ask myself, based on the evidence that I do accept am I satisfied beyond a reasonable doubt of his guilt. If not, then I must acquit. [ 63 ] Sexual assault cases by there very nature often lack witnesses apart from the complainant and the accused person. These cases often come down to two differing versions of events. [ 64 ] As in all cases, the court must assess the credibility and reliability of the evidence of the witnesses. However, this analysis does not create a credibility contest between E.B. and Mr. Bogle. I am not permitted to decide based on which version of events I prefer. [ 65 ] Credibility relates to the honesty or veracity of a witness, whether the witness is expressing themselves truthfully to the best of their ability. [ 66 ] Reliability relates to the accuracy of a witness’ testimony - whether a witness has a strong recollection and memory of the event, whether they can recount details, and whether they are accurate. [ 67 ] A witness who fails to tell the truth is not credible and not reliable. However, a witness who tries to tell the truth to the best of their ability, and believes the truth of what they are stating, may be mistaken in their recollection. Witnesses may be convinced they are right but may still be wrong when faced with contradicting extrinsic evidence. A credible witness may give unreliable evidence. ( R. v. H.C., 2009 ONCA 56 ). Evidence must be both reliable and credible to support a finding of guilt beyond a reasonable doubt. [ 68 ] In assessing the credibility of a witness, I must consider any inconsistencies in their testimony whether internal or with prior statements. Inconsistencies on minor matters may be of less importance and not affect the credibility of a witness. However, inconsistencies that impact material issues can lead to a finding that a witness is not credible or reliable. [ 69 ] In R. v. Kruk, 2024 SCC 7 , the Supreme Court of Canada confirmed testimonial assessments depend on the life experiences of trial judges when assessing the credibility and reliability of witnesses, and stated: [72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152 , 452 D.L.R. (4th) 375 , at para. 31 , aff’d 2020 SCC 39 , [2020] 3 S.C.R. 780 , the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R. , 2018 ABCA 287 , 366 C.C.C. (3d) 293 , the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.) , 1997 324 (SCC) , [1997] 3 S.C.R. 484 , this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment. [73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” ( R. v. Kiss , 2018 ONCA 184 , at para. 31 ; R. v. Adebogun , 2021 SKCA 136 , [2022] 1 W.W.R. 187 , at para. 24 ; R. v. Kontzamanis , 2011 BCCA 184 , at para. 38 ). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail). [81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” ( S. (R.D.) , at para. 128 ; R. v. Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621 ). With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” ( Gagnon , at para. 20 ; see also R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , at para. 28 ; R. v. G.F. , 2021 SCC 20 , [2021] 1 S.C.R. 801 , at para. 81 ). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony. [ 70 ] As the above authorities make clear, I may believe all, some, or none of the testimony of a witness, including an accused person. If I am unable to decide who to believe, I must acquit. [ 71 ] I have difficulty with the evidence of Mr. Bogle. While I accept some of his evidence regarding his background and upbringing and the use of his hands when speaking, I do not accept his evidence regarding the events that bring him before the court. I have identified issues with Mr. Bogle’s testimony in the summary of the evidence. These concerns have a direct impact on his credibility and reliability. [ 72 ] I also find it difficult to reconcile the amount of detail he recalls regarding his interactions with E.B. and the lack of detail regarding interactions with other individuals that night including any conversation with the female with whom he danced all night. The reconciling of his evidence is made more difficult as he was arrested eight months later. He was not asked, nor did he provide an explanation for the significance of this event and his ability to recall the details with precision. I am not permitted to speculate why he would have a reason to remember the particulars of this event. Taken with his admission to the Crown that he was interested in taking E.B. to dinner and to see her again, no evidence was tendered about his efforts to exchange personal or contact information to facilitate this casting further doubt on the veracity of his testimony. [ 73 ] As I have decided I do not accept Mr. Bogle’s testimony nor do I find it reliable, I must still assess it in the context of all the other evidence. If, after doing so, it leaves me in state of uncertainty that I am unsure where the truth lies, I must find Mr. Bogle not guilty. In other words, if I am unable to resolve conflicts in the evidence in relation to an essential element that means there is a reasonable doubt and uncertainty as to where the truth lies and leaves a reasonable doubt. [ 74 ] E.B. gave her evidence in a straightforward manner. She presented as articulate, intelligent, and thoughtful. Her responses were open and genuine in her efforts to recall details of the incident. In cross-examination her responses were similar in her approach to questions asked in chief. [ 75 ] E.B. appeared to make best efforts to tell the truth and recall the events of that evening as clearly as possible. E.B. acknowledged she had consumed approximately three vodkas mixed with either 7-Up or water, and five shots of tequila prior to attending the after-hours bar. She may have had one drink less or one drink more. She described herself on a scale of 1 to 10, with 10 being the most intoxicated as a “five”. She was cognizant, had a full recollection of the evening, and was not impaired where she could not recall moments in time and was fully in control of her own actions. [ 76 ] Where I struggle is reconciling E.B.’s testimony regarding her fear and concern about Mr. Bogle. She repeatedly agreed that the primary reason she wanted to leave the club was to avoid Mr. Bogle. She wanted to return to her safe space at home. When E.B. left the club, she crossed Augusta Avenue and headed west in the alleyway. Her plan was to call an Uber that would pick her up on Queen Street. The back alley ran parallel to Queen Street. It is unclear why she did not travel south on August Avenue to Queen Street. The distance to Queen Street was approximately four car lengths. [ 77 ] E.B. testified it was normal in Halifax to catch a ride with a stranger when it was offered. She agreed she had never done this when she lived in Vancouver. She also agreed she had never accepted a ride from someone she was trying to escape or avoid. E.B. stated, she was not concerned with her safety when she got in the car as she had made her lack of interest clear to Mr. Bogle. I am unable to reconcile this statement with her testimony where she agreed Mr. Bogle’s actions inside the club were creepy, made her feel uncomfortable, and that she was being stalked. E.B. did not share these concerns with Steven and did not ask him to walk her out, although she did tell him she was leaving. [ 78 ] People may make poor decisions or exercise poor judgment when upset and/or impaired by alcohol. However, E.B. was clear one of several reasons for leaving the club was to get away from Mr. Bogle. E.B.’s home was an 8-to-10-minute drive or a 20-minute walk. [ 79 ] I have also struggled with the reliability of E.B.’s evidence regarding events in the car. E.B. was clear she recalled the significant acts of Mr. Bogle penetrating her with his fingers and penis. However, when asked if Mr. Bogle had touched and/or kissed her breasts or if Mr. Bogle kissed the top of her vagina and performed oral sex on her, she could not remember. She agreed it may have happened, but she only recalled things that were significant. She later agreed she considered oral sex a significant act. The Crown argued E.B. froze and may not recall everything that occurred. This also raises questions regarding the reliability of E.B.’s recollection of the events. [ 80 ] As stated earlier, a criminal trial is not a credibility contest. Rather it is whether the prosecution has proven its case beyond a reasonable doubt. [ 81 ] I have concerns regarding the evidence of Mr. Bogle. I am not able to say I believe all, or parts of his evidence. However, there are portions of his evidence when considered with the totality of all the evidence that are plausible. I am not permitted to speculate or guess what I think likely happened but am restricted by the evidence before the Court. [ 82 ] Having considered the totality of the evidence, I am uncertain where the truth lies. [ 83 ] For that reason, I find Mr. Bogle not guilty. I want to be clear that this is not a positive finding that E.B. consented. There is a difference between finding consent and finding a reasonable doubt about consent. The latter flows from the burden of proof which rests on the prosecution. C. Rhinelander, J. Released: February 28, 2025 COURT FILE NO.: CR-23-10000293 DATE: 20250228 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – BERNIE BOGLE REASONS FOR decision Rhinelander J. Released: February 28, 2025
minicounsel