R. v. B.H., 2026 ONSC 1704

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. B.H., 2026 ONSC 1704

COURT FILE NO.: CR-24-44101226 CJ

DATE: 2026/03/20

BETWEEN:

HIS MAJESTY THE KING

• and -

B.H.

Defendant

Dan Gartshore, Counsel for the Crown

Nicholas Gehl, Counsel for the Defendant

HEARD: December 8, 9, 10 and 11, 2025

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainant and the accused may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

GIBSON J.:

REASONS FOR JUDGMENT

Overview

1B.H. is charged with: one count of sexual assault of M.C. contrary to s. 271 of the Criminal Code of Canada; one count of choking while committing an assault on M.C., contrary to s. 267(c) of the Criminal Code; one count of using or threatening to use a weapon while committing an assault on M.C., contrary to s. 267(a) of the Criminal Code; one count of assault of M.C. contrary to s. 266 of the Criminal Code; and unlawful confinement of M.C., contrary to s. 279(2) of the Criminal Code. All of the offences are alleged to have occurred during B.H.’s interactions with the complainant M.C. in his bedroom of a multi-tenant building in Kitchener, Ontario, on 4 February 2024. B.H. rented a room in a house with multiple tenants. B.H. has pleaded not guilty to all of the Counts on the Indictment.

2B.H. and M.C. were in an intimate relationship at the time. They met through a dating website and had been dating since 2021.

3M.C. worked as a live-in caregiver in Grimsby and came to Kitchener to see B.H. on weekends. In February 2024, 3 February was a Saturday, and 4 February was a Sunday.

4The trial proceeded as a judge-alone trial on December 8, 9, 10 and 11, 2025.

The evidence at trial

5The Crown presented evidence from five witnesses; the complainant M.C.; Dan Bjerre, the landlord of B.H.’s residence, who lived downstairs; Prince Umeh, a student who also lived in another bedroom of the house and who was present in his room at the relevant time; Lisa Schantz, a nurse who examined the complainant M.C.; and Constable Yvette Perrin, who took photographs of the complainant’s apparent injuries. Identity, jurisdiction of the Court, and the date of the incidents was admitted.

6The Defence did not call any evidence.

Evidence of the complainant M.C.

7The evidence of the complainant M.C. may be succinctly summarized as follows. She met B.H. through a dating website in 2021. She worked as a live-in caregiver in Grimsby, but would come to Kitchener to see B.H. on weekends. On Saturday 3 February, 2024, she drove to Kitchener and went out with B.H. to see a movie and to have dinner at Montanas. Afterwards they played billiards. They returned to his residence, where they had consensual sexual intercourse and then slept. Around 4 - 5 a.m. on Sunday 4 February, B.H. woke her up and said there was a problem with his cellphone camera. He was agitated and asked her to help him. It was a Motorola brand with which she was not familiar. She accidentally pressed the emergency button and he became upset. He then started checking the contents of her cellphone. He started shouting and raising his voice. She wanted to go to the toilet but he would not permit her to do so. He picked her up and threw her on the bed. He then held her by her neck and pushed her on the bed. His hands were around the front of her neck. She told him not to do that because he was hurting her. She could not breathe. He then lay on top of her, checking her cellphone, accusing her of contacting others.

8She tried to go to the washroom. He caught her and brought her back to the room. He threw her on the bed and inserted his finger in her anus, then tried to get her to lick his fingers. He tried to force his finger into her mouth. She told him that she did not want to do that. She testified that she did not consent to him putting his finger in her rectum. She testified that he tried to penetrate her anus with his penis. She said that he said words to the effect of “I will punish you. You have to enjoy this. You deserve this.” He held her down so that she could not move. He then choked her, using two hands to choke her. Her sight became dim and she could not breathe, although she remained conscious. She said that this went on for about five minutes. She knocked on the wall trying to get someone to help her, but no one responded.

9After he had finished penetrating her, they lay together while he texted. He looked at her phone and accused her of lying to him. She asked him not to. At some time later, he began playing with two dumbbells, moving them around. He was agitated and appeared angry. He began walking and swinging his arms. He grabbed her Apple watch and threw it on the bed. She asked him to put down the dumbbell, but he did not. He was crying and sweating. He was verbally interrogating her. She said that she felt scared. He put one dumbbell down, and put his hand on her neck. He had a dumbbell in the other hand. He grabbed her throat. He applied some pressure. She kissed him. She testified that she “was kind of afraid that he will hit her with the dumbbell.” She testified that he “gestured” with the dumbbell after she hugged him.

10He subsequently opened the door. She took some items to her car, then returned to the bathroom to shower while he was in the kitchen. She cried in the shower. She then went to her car and called police. The police attended in three minutes.

11She testified that the shoulder of the nightie that she was wearing was ripped in the encounter.

12In summary, M.C. testified that B.H. choked her three times: the first time when she was lying flat, the second time when she was lying on the bed, and the third while he was standing up holding a dumbbell. He threw her on the bed and held her down. She said that he penetrated her anus with his penis and his finger without her consent, and restrained her from leaving the bedroom when she wanted to, by physical restraint and by locking the door.

13On cross-examination, M.C. rejected the suggestion that B.H. did not insert his penis in her anus, and that he did not insert his finger in her anus and then try to force it into her mouth, or that he never picked up the dumbbells.

Evidence of Dan Bjerre

14Dan Bjerre was the landlord of the house, who was present downstairs on the morning of 4 February 2024. He could hear some yelling upstairs where B.H.’s bedroom was located. He thought that the voice was that of M.C., speaking about a cellphone, but he remained in the kitchen and did not investigate. He said that he did not consider the matter to be any of his business.

Evidence of Prince Umeh

15Prince Umeh is an international student from Nigeria who rented a room in the house. He was in his room on the morning of 4 February 2024. He heard some noise, and somebody saying that “you need to fix my phone,” and “I need to go.” He also heard one bang. He stayed in his room and did not investigate. He indicated that because of his experiences in Nigeria he did not want to get involved in any controversy.

Evidence of Lisa Schantz

16Lisa Schantz is a nurse who on 4 February 2024 was working at the Waterloo Region Sexual Assault Domestic Violence Treatment Center at what was then St. Mary’s General Hospital. She met with M.C. and did a sexual assault kit and took photographs to document her injuries. These photographs were made exhibits in evidence. The photographs depict injuries to M.C.’s chin and neck. M.C. was also seen by a physician.

Evidence of Cst. Yvette Perrin

17Yvette Perrin is a Constable with the Waterloo Region Police Service. On 13 February 2024 she attended at the address in Grimsby where M.C. worked to take a statement and to take photographs of some items of clothing and of bruising to the left side of M.C.’s face. The photographs were made exhibits in evidence.

Text Messages

18Text messages between B.H. and M.C. were made an exhibit in evidence. These messages illustrate the volatility of the relationship between them.

Position of the Parties

19The Crown submits that M.C. was a credible witness, and that the acknowledged deficiencies and inconsistencies in her evidence were on peripheral details that do not detract from the core of her evidence. The Crown submits that it has proven all of the essential elements of the offences and that B.H. should be found guilty on all five Counts.

20The Defence submits that M.C. was not a credible or reliable witness, and that the numerous inconsistencies in her evidence should lead to the conclusion that the Crown has not proven the essential elements of the offences to the requisite standard of proof beyond a reasonable doubt. It highlights that M.C. did not mention the incident of B.H. inserting his penis into her anus during her initial statement to police. It also questions the believability of her account that she went to her car to put items in the car, then returned to have a shower, before returning to her car to call police. It submitted that medical examination indicated no visible injuries to her anus.

Law

21The first legal issue upon which I must instruct myself relates to the presumption of innocence and the legal standard of proof beyond a reasonable doubt.

22It is fair to say that the presumption of innocence is perhaps the most fundamental principle in Canadian criminal law, and the standard of proof beyond a reasonable doubt in order to displace the presumption of innocence is an essential part of the law that governs criminal trials in this country. Under Canadian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each essential element of the offence beyond a reasonable doubt. An accused person is presumed innocent throughout his or her trial until the trier of fact, weighing all of the evidence, makes their determination at the end of the trial.

23The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution’s case, but to the total body of evidence upon which the prosecution relies to prove guilt. In order to secure a conviction, it is incumbent on the prosecution to prove each essential element of the offence charged to the standard of proof beyond a reasonable doubt. The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.

24The Court must find an accused person not guilty if it has a reasonable doubt about his or her guilt on all the essential elements of the offence after having considered all of the evidence.

25The term “beyond a reasonable doubt” has been used for a very long time. It is part of our history and tradition of justice.

26In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model jury charge on reasonable doubt. The principles laid out in Lifchus have since been applied in a large number of Supreme Court and appellate court decisions. In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice; rather, it is a doubt based on reason and common sense. It is a doubt that arrives at the end of the case, based not only on what the evidence tells the court, but also on what that evidence does not tell the court. The fact that the person has been charged is no way indicative of his or her guilt.

27In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court of Canada declared that:

... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities....

28On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person beyond a reasonable doubt. To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

29The second legal issue is the assessment of the testimony of witnesses. Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed or what they did. It could be documents, photographs, videos, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the Crown or the Defence, and matters of which the court takes judicial notice.

30It is not unusual that some evidence presented before the court may be contradictory. Often, witnesses may have different recollections of events. The court has to determine what evidence it finds credible and reliable.

Credibility and Reliability

31Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’ opportunity to observe events, as well as a witness’ reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial?

32The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant or argumentative? However, demeanour must be assessed with caution, and should be assessed in conjunction with an assessment of whether the witness’ testimony was internally consistent, that is, consistent with itself, and externally consistent with the other uncontradicted or accepted facts in the evidence.

33The Court of Appeal for Ontario has repeatedly cautioned against over-reliance on demeanour as a factor in assessing the credibility of witnesses and the reliability of their evidence.

34Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious, and it may well taint a witness’ entire testimony.

35The Court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The Court may accept the evidence of a particular witness in total, in part, or not at all. In Clark v. The Queen, 2012 CMAC 3, Watt J.A. gave very clear guidance as to the governing principles in the assessment of credibility of witnesses:

First, witnesses are not “presumed to tell the truth.” A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption, except the presumption of innocence [of the accused person.]

Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to reject uncontradicted evidence. [A trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings.]

36Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification. Credibility is not co-extensive with proof.

37As Justice Watt indicated at para. 48 of Clark:

Testimony can raise veracity and accuracy concerns. Veracity concerns relate to a witness’ sincerity, his or her willingness to speak the truth as a witness believes it to be. In a word, credibility. Accuracy concerns have to do with the actual accuracy of the witness’ account. This is reliability. The testimony of a credible, in other words an honest witness, may nonetheless be unreliable.

38The concept of reasonable doubt applies to credibility.

39The term “credibility assessment” is a shorthand for the assessment of two qualities of a witness’s testimony: their credibility, and their reliability. It is helpful to distinguish the concepts from one another even though they are analyzed in tandem.

40Credibility and reliability are different. Credibility has to do with a witness’s veracity or honesty. Reliability has to do with the accuracy of a witness’s testimony.

41Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue.

42Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible or honest witness may still give unreliable evidence.

W.(D.) Assessment

43The accused person B.H. did not give evidence at the trial, as of course he was not required to do, and no adverse inference may be drawn against him for not doing so. The position of the Defence, advanced through cross-examination and through submissions of counsel, is a denial of most of the essential elements of the offences charged on the Indictment.

44Given this, the Court must focus its attention on the analytical process specified in the reasons for decision of Justice Cory in the Supreme Court of Canada case of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

45The principles in W.(D.) apply in cases where the accused gives evidence. However, the principles of W.(D.) will also apply in any case where a crucial issue turns on credibility: R. v. F.E.E., 2011 ONCA 783, per Watt J.A. at para. 104. The W.(D.) analysis applies not only to an accused’s testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: R. v. B.D., 2011 ONCA 51, per Blair J.A. at paras. 113 - 114, and R. v. Cyr, 2012 ONCA 919, per Watt J.A. at para. 50.

46The guidance in W.(D.)provides as follows:

a. first, if I believe the evidence of the accused, then I must acquit;

b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

47In R. v. J.H.S., 2008 SCC 30 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R v. H.(C.W.) (1991) 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (BCCA) where Wood J.A. suggested the additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.”

48Helpful guidance on the application of these principles has been given by Justice David Paciacco, writing extra-judicially, in ‘Doubt About Doubt: Coping with R. v. W.(D.) and Credibility Assessment’, (2017) 22:1 Can Crim L Rev 31.

49In popular parlance, one often hears trials such as this described as “he said/she said” matters. One must be careful not to unreflectively adopt this notion, as framing it this way is too simplistic and may lead one into error in understanding the task of the trier of fact. This trial is not a credibility contest between the complainant and the accused, in which one simply chooses whose version one prefers. The lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. The persistence of a reasonable doubt is incompatible with a finding of guilty.

50I will now address several issues that may potentially arise in the trial of alleged sexual offences.

Sexual Offences Myth-Based Reasoning

51It must be acknowledged that trials do not take place in a historical, cultural or social vacuum. Before turning to a discussion of the specific elements of the offences with which B.H. is charged and the evidence that relates to those elements, one must adopt caution against approaching the evidence with unwarranted or stereotypical assumptions that may be holdovers from a past era, as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say.

52My purpose in doing so is to ensure trial fairness. It is not to privilege the rights of the complainant over the accused. The objective rather is to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in a particular case and attempt to remove them from the deliberative process in a fair and balanced way, so that they do not distort the fact-finding process.

53There is no typical victim or typical assailant or typical situation or typical reaction.

54Unfortunately, myths and stereotypes regarding complainants in sexual assault or other sexual offence cases still exist in society. Such myths and stereotypes are entirely unfounded and have no place in a court of law. Such myths and stereotypes should not be considered when deciding this case.

55In particular, the myth that complainants in sexual offence cases have a higher tendency than other complainants to fabricate allegations based on “ulterior motives” and are therefore less worthy of belief, is not supported by social science, the law, or judicial experience. It is a myth. There is no basis to believe that sexual offence complainants are more likely to fabricate allegations than complainants of any other type of crime. The Supreme Court of Canada has clearly stated that sexual assault complainants should not be treated as inherently suspect.

56No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of a sexual offence is “supposed” to react to the assault.

57It is a myth that failure to fight back means that no sexual assault occurred. Complainants know that there is no response on their part that will assure their safety.

58It is also a myth that failure to scream or call out means that no sexual assault or other sexual offence occurred or that the complainant consented. There is no “right” way to respond during a sexual assault. It would be stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

59It is also a myth to expect that a complainant will change her or his behaviour or take steps to avoid her or his abuser. The Supreme Court has clearly stated that the lack of avoidant behaviour on the part of a complainant is not relevant in a sexual assault trial. It would be an error to conclude that a complainant is less worthy of belief because she failed to avoid having contact with the accused. To do so would be to rely on the myths that a complainant will take steps to avoid her or his abuser or immediately tell someone what had occurred.

60As I have stated, there is no inflexible rule on how people who are the victims of trauma, like sexual assault, will behave. Some will make an immediate complaint, some will delay making disclosure of what happened to them, while some will never make disclosure. Some victims may disclose details incrementally, at different times. Some details may never be disclosed. Reasons for delay or incremental disclosure are many and may include embarrassment, fear, guilt or a lack of understanding and knowledge.

61In assessing the credibility of a complainant, the timing and fullness of the disclosure is simply one circumstance to consider in the factual mosaic of a particular case. Delayed or incremental disclosure, standing alone, should not give rise to an adverse inference against the credibility of the complainant.

62Just as there is no “right” way for a victim to behave during or after a sexual violation, there is no “right” way that a sexual offence occurs nor a “special” location in which it occurs.

63It remains impermissible, however, to reason that a complainant is telling the truth by the mere fact that she has pursued a complaint and shown willingness to undergo “the unpleasant rigours of a criminal trial.” To reason in this way would reverse the burden of proof and evince stereotype: R. v. JC, 2021 ONCA 131, at paras. 88 - 89.

64My purpose in articulating these concepts is not to support a particular conclusion but to caution myself against reaching conclusions based on common misconceptions. One must approach the evidence with an open mind and without preconceived ideas.

Essential elements of the offences charged

65The essential elements of the offence of sexual assault under s. 271 are:

1.That B.H. touched M.C. directly or indirectly;

2. That the touching by B.H. was intentional;

3. That the touching by B.H. took place in circumstances of a sexual nature;

4. That M.C. did not consent to the sexual activity in question; and

5. That B.H. knew that M.C. did not consent.

66The essential elements of the offence of assault under s.266 are:

1. That B.H. intentionally applied force to M.C.;

2. That M.C. did not consent to the force that B.H. intentionally applied; and,

3. That B.H. knew that M.C. did not consent to the force that B.H. intentionally applied.

67The essential elements of the offence of using or threatening to use a weapon in committing an assault under s. 267(a) are, in addition to the elements of assault, that the accused used or threatened to use a weapon. A weapon is anything used, designed to be used or intended for use in killing or injuring anyone or for the purpose of threatening or intimidating anyone.

68The essential elements of the offence of choking or suffocating or strangling in committing an assault contrary to s. 267(c) are, in addition to the elements of assault, that the accused choked, suffocated or strangled the complainant.

69The essential elements of confinement without lawful authority contrary to s. 279(2) are:

1. That B.H. intentionally confined M.C.; and

2. That the confinement was without lawful authority.

70To intentionally confine another person is to physically or coercively restrain or direct that person, contrary to their wishes, thereby depriving that person of their liberty to move from one place to another according to their own inclination or desire. The restraint or direction can be through violence, fear, intimidation, or psychological or other means. The purpose of the confinement is irrelevant.

71Lawful authority means a power or right that the law authorizes or permits someone to exercise. A confinement is without lawful authority if it is done by someone in circumstances the law does not permit.

72As specified at s. 274 of the Criminal Code, if an accused is charged with an offence under s. 271, no corroboration is required for a conviction.

Motive of complainants to lie

73In this case, there is no onus on B.H. to prove that the complainant had a motive to lie. It would be a reasoning error in assessing the credibility of an accused to consider his inability to explain why a complainant would lie.

74There is a distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate. The absence of evidence of a motive to fabricate must not be confused with the absence of such a motive. One must not conclude that complainants must be telling the truth because no motive to fabricate had been demonstrated. The absence of an established motive to fabricate is only one factor among many in assessing the complainant’s credibility.

75It is dangerous and impermissible to move from an apparent lack of motive to lie, to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all.

76In R. v. Gerrard, 2022 SCC 13, the Supreme Court of Canada has succinctly summarized the relevant factors:

Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33).

Lack of embellishment may also be relevant in assessing a complainant’s credibility and often arises in response to suggestions that the complainant has a motive to lie. But, unlike absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie.

Analysis

77I start with an assessment of the credibility of the complainant. I found that M.C. was generally a credible witness, who understood the difference between truth and falsehood. She did not embellish her evidence. Her evidence was not significantly shaken on cross-examination with regard to its core elements. There were some inconsistencies in her evidence, particularly with regard to timelines, but I do not assess that these significantly detract from the reliability of her evidence. Part of the lack of clarity of certain aspects of her evidence may well be attributed to the fact that Tagalog rather than English is her first language. While her proficiency in English was generally good, it was not perfect. The complainant chose to testify in English without a Tagalog interpreter.

78Her evidence is also corroborated to some degree by the photographs in evidence taken by Lisa Schantz and Constable Perrin, depicting injuries to her body and damage to her clothing in the period after the events of 4 February 2024.

79The Defence has highlighted several concerns in particular, upon which I must focus particular scrutiny. It submits that there was no evident injury to her anus, notwithstanding that she testified that B.H. forcefully penetrated her. There is no medical evidence before me to substantiate the assertion that some would be expected in this circumstance, and it is not self-evident that any would necessarily be expected.

80The Defence submitted that it is implausible that the complainant would take items to her car, then return to shower, before then returning to her car to call police. The first thing to note is that the complainant explained that she did not have her phone when she first went to the car as B.H. had taken it from her, and she was only able to retrieve it when she returned. The second is to note, as indicated above, that there is no one way for someone who has been the victim of trauma, including choking or a sexual assault, to behave. It would be an error to reason that the complainant was being untruthful because she did not conform to a general expectation which may reflect myth or stereotype about what a person who has been assaulted “should” do.

81The Defence submitted that, if the complainant had indeed banged on the wall to attract attention, then someone would have heard and responded. Both Dan Bjerre and Prince Umeh testified that they did indeed hear some disturbance, but it is clear from their evidence that they did not consider it their business and did not wish to investigate. In this circumstance, this does not detract from the credibility or reliability of the complainant’s account.

82The Defence highlighted that the complainant did not mention the allegation that B.H. had inserted his penis into her anus without her consent during her initial statement to police on 13 February 2024. The Crown acknowledges that this is so. However, as highlighted in the earlier discussion, incremental disclosure will not, standing alone, detract from the credibility of a complainant’s evidence. It is merely part of the factual mosaic of the entire case. I do not accept the Defence submission that this evidence was a recent contrivance of the complainant.

83I find on the basis of the evidence that I do accept, that B.H. inserted his penis into the anus of the complainant without her consent, and that he inserted a finger into her anus, and tried to force her to put it into her mouth. I find that B.H. threw the complainant onto the bed, and forcibly held her there with his arms and his body while he sexually assaulted her. I find that B.H. choked M.C. on three occasions, twice while she was on the bed, and once while she was standing. He forcibly restrained her from leaving the room when she attempted to go to the bathroom, and took her car keys at one point.

84Taken altogether, viewing the evidence as a whole, the Crown has discharged its burden of proving all of the essential elements of the offence with regard to the first, second, fourth and fifth Counts on the Indictment.

85The Crown has not discharged its burden of proving all of the essential elements of the offences charged to the standard of proof beyond a reasonable doubt with regard to the third count on the Indictment, that of using or threatening to use a weapon, to wit, a dumbbell. A dumbbell could qualify as a weapon as something used, or intended for use, in injuring someone or for the purpose of threatening or intimidating someone. However, while the complainant testified that B.H. made a “gesture” with the dumbbell that alarmed her, it is not certain to the requisite degree that he tried to hit her with it, or intended to intimidate her with it. According to the complainant’s evidence, B.H. was agitated and moving quickly around the room. The element of intention is not clearly made out. The rigour of the standard of proof beyond a reasonable doubt of all the essential elements of the offence is our society’s bulwark against the potential for wrongful convictions, and must not be diluted. Consequently, there will be an acquittal on the third Count of the Indictment.

Conclusion

86The Court finds B.H. guilty of Counts 1, 2, 4 and 5 of the Indictment.

87The Court finds B.H. not guilty of Count 3 of the Indictment.

M.R. Gibson J.