R. v. J.F.B., 2026 ONSC 264

CITATION: R. v. J.F.B., 2026 ONSC 264

COURT FILE NO.: CR-424-23

DATE: 2026/01/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

J.F.B.

Defendant

Jennifer Moser, for the Crown

Samantha Puchala, for the Defendant

HEARD: June 2, 3, 4 and 5, 2025

REASONS FOR JUGMENT

JUSTICE I.F. LEACH (oRALLY)

Introduction

1The accused in this matter, Mr J.F.B., (also referred to herein as “the accused” or “Mr B.”), is charged with the following offences, addressed by the following Counts of the underlying indictment:

a. Count 1: criminal harassment, contrary to subsection 264(3) of the Criminal Code, (“the Code”);

b. Count 2: assault, contrary to section 266 of the Code;

c. Count 3: assault with a weapon, contrary to sub-paragraph 267(a) of the Code;

d. Count 4: sexual assault, contrary to section 271 of the Code;

e. Count 5: mischief, contrary to subsection 430(4) of the Code; and

f. Count 6: a further charge of mischief, contrary to subsection 430(4) of the Code.

2The above charges have been set forth in the underlying indictment in an order slightly at odds with the manner in which they are said to have occurred; e.g., insofar as the charges alleged in Counts 2, 3, 4, 5 and 6 of the indictment centre on events alleged to have taken place here in the city of London on August 7, 2021, while the charge of criminal harassment alleged in Count 1 of the indictment centres on communications said to have been sent or exchanged in a period following immediately thereafter, between August 7th and September 30th, 2021.

3Evidence concerning the precise events and conduct said to underlying the charges against Mr B. will be discussed in more detail during the course of these reasons.

4However, by way of introduction, and the provision of initial general context for what follows hereafter, I note that the allegations of misconduct said to have been committed by Mr B. stem from general circumstances which, in a number of respects at least, seemed undisputed. In my view, such essentially undisputed matters included the following:

a. The accused Mr B., (at all material times generally resident here in the city of London), and the complainant S.F., (at all material times generally resident in the city of Vaughan), met during the early months of 2021 while both were engaged in residential rehabilitation therapy at a specified facility located in [a specified town], Ontario, where both engaged in programming to help them address specified addiction and substance abuse issues. The two participated in many of the same classes, and also engaged in individual conversations, all of which involved the sharing of private information. In the result, the two also developed a relationship they mutually decided to continue, in a more “official” and intimate manner, after their departure from the facility in or around the spring of 2021.

b. In the spring and summer of 2021, the accused Mr B. was principally living at a specified residence on [a specified street] here in the city of London. In that regard:

i. The residence in question was a fully detached house in a residential neighbourhood of similar homes; a structure with two stories, (a main floor situated slightly above ground and a basement underneath), a front porch, a front yard open to the street, a fenced and gated backyard with a detached and generally open “gazebo” type of structure, (lined with screened windows and doors), and a two-vehicle driveway.

ii. That [specified] residence apparently was owned by the accused’s mother, J.B., who lived there with her partner K.L., and the couple’s pet dog. Arrangements also had been made for Mrs B.’s three sons, (i.e., the accused and his brothers J. and A.), to live at the home as well, at least when J. and A. were not away in Nunavut, working shifts there as security guards. J.’s partner at the time, R.P., also was staying at the home in a bedroom she shared with J., regardless of whether J. happened to be temporarily away working in Nunavut.

iii. As the interior of the [specified] residence has relevance to the events in question, I note that the relevant configuration in that regard, (in August of 2021 at any rate), generally was described as follows:

1. The house apparently was capable of being entered via an exterior door at the front of the residence, (leading into the house from the front porch of the house, approximately four steps above ground), or through another exterior door located at the side of the house; a door that opened into a landing where one encountered a few stairs leading up to the main floor, or more stairs leading down to the basement level.

2. The main or upper floor of the residence included, inter alia, a kitchen, a living room area, a bedroom occupied primarily by J.B. and K.L., and another bedroom occupied primarily by A.B., at least when he was back home in London.

3. The lower floor or basement of the residence had been finished and subdivided into several rooms. Those rooms included:

a. at or near the foot of the stairs, a bathroom with a closeable door;

b. an entrance, leading off that same basement hallway encountered at the foot of the stairs, into a laundry room area of the basement.

c. further towards the end of the basement hallway, a bedroom with a closeable door that was primarily occupied by the accused, Mr B.;

d. at the end of that same basement hallway, (as one moved away from the foot of the stairs), a doorway equipped with two closable “French doors” leading into a basement living room area; and

e. another bedroom with a closeable door, (occupied primarily by J. and his partner R.P.), which one reached from the bottom of the stairs by essentially proceeding in something of a circle around the home’s basement – i.e., by walking past the doors off the basement hallway leading into the basement bathroom, the basement laundry room and the accused’s bedroom, through the double French doors into the basement living room area, and then through the closeable door leading off that basement living room into that additional bedroom.

c. In the spring and summer of 2021, the complainant Ms F. was principally living at a residence in the city of Vaughan; a residential home that apparently was owned and occupied by her parents. Her two brothers, (older and younger), also lived at the same residence.

d. The relationship between the accused Mr B. and the complainant Ms F. endured with apparent happiness for approximately five months; e.g., without any apparent conflict or discord, and with Ms F. visiting and staying with Mr B. at the [specified] residence here in London from time to time.

e. That generally happy relationship and amicable interaction between Mr B. and Ms F. nevertheless unquestionably came to end in early August of 2021, in disputed circumstances; circumstances culminating in disputed events, (including alleged commission of the offences charged in Counts 2 through 6 of the underlying indictment), which are said to have taken place on August 7, 2021; i.e., after Mr B. had driven to Vaughan in the early morning hours of that day to bring Ms F. back to the [specified] residence in London for what would be her final visit there.

f. By the evening of August 7, 2021, Ms F. had returned to her parents’ home in Vaughan. Apart from a brief attendance by Mr B. at the front porch entrance to that home in Vaughan to drop off some items belonging to Ms F., (during which he and Ms F. did not encounter each other), and a further brief attendance at the front porch of that Vaughan home for the purpose of Mr B. and Ms F. returning personal items to each other, (with a correspondingly brief meeting and conversation between the two), Mr B. and Ms F. apparently did not meet or see each other again outside the context of this court proceeding. Between August 7, 2021, and September 30, 2021, the two nevertheless did continue to communicate extensively by text messaging and audio/video calls; i.e., prior to Ms F. reporting Mr B.’s alleged misconduct to the police.

g. As discussed in further detail below, there also were said to be further electronic communications exchanged between Mr B. and Ms F. in the period after September 30, 2021, albeit with Mr B. being said to have used a known alias, (i.e., “J.F.”), in that regard.

Charges and essential elements

5Before proceeding further, I think it helpful to note and review, at the outset and in more detail, the precise wording of the charges against Mr B., and the essential elements of the offences with which Mr B. is charged; i.e., the necessary components of each offence which must be proven by Crown counsel beyond a reasonable doubt in order to warrant a conviction of Mr B. in relation to that offence.

COUNT 1 – CRIMINAL HARASSMENT

6Again, the Count 1 charge against Mr B. refers to s.264(3) of the Code, which specifies, in part, that “Every person who contravenes this section is guilty of … an indictable offence…” Subsection 264(3) therefore effectively cross-references the remainder of the section in its entirety, with subsections 264(1) and (2), reading as follows:

264. (1) No personal shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety, or the safety of anyone known to them.

(2) The conduct mentioned in subsection (2) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

7Count 1 of the underlying indictment, charging Mr B. with criminal harassment, reads as follows:

COUNT 1: J.F.B. STANDS CHARGED THAT he, between the 7th day of August in the year 2021 and the 30th day of September in the year 2021 at the City of London in the said Region, [i.e., “the Southwest Region” specified elsewhere in the indictment], did, without lawful authority and knowing that another person, namely S.F., was harassed or recklessly as to whether that person was harassed, engage in repeatedly communicating with, either directly or indirectly, that person, and cause the said S.F. to reasonably fear for personal safety, contrary to Section 264, subsection (3) of the Criminal Code of Canada.

8In that regard, a number of aspects of that charge as worded in the indictment should be noted and emphasized. In particular:

a. Of the various forms of conduct specified in s.264(2) of the Code that might give rise to the offence of criminal harassment, when that conduct takes place in the additional circumstances outlined in s.264(1) of the Code, the indictment faced by Mr B. only alleges conduct in the nature of that specified in s.264(2) of the Code; i.e., “repeatedly communicating with, either directly or indirectly, the other person or anyone known to them”. Fundamental fairness to the accused Mr B. accordingly requires that consideration of the Count 1 charge against him depend on adequate proof of conduct involving such alleged repeated communications; i.e., without the possibility of such an offence being grounded on conduct that arguably might fall within the other provisions of s.264(2) not expressly alleged and relied upon the Crown, including conduct that might be characterized as:

i. repeatedly following the complainant or anyone known to the complainant, as contemplated by s.264(2)(a) of the Code;

ii. besetting or watching the dwelling-house, or place where the complainant or anyone known to the complainant, resides, works, carries on business or happens to be, as contemplated by s.264(2)(c) of the Code; or

iii. engaging in threatening conduct directed at the complainant or any member of the complainant’s family, as contemplated by s.264(2)(d) of the Code.

b. As expressly acknowledged and emphasized by Crown counsel, fundamental fairness to the accused Mr B. also requires that that the “repeated communications” relied upon in support of the Count 1 charge of criminal harassment be limited to those said to have taken place during the period specified in Count 1 of the indictment; i.e., the communications said to have taken place between August 7, 2021, (when the alleged events underlying the other counts of the indictment are said to have occurred), and September 30, 2021, with the latter date being the undisputed date on which the complainant Ms F. provided a statement to the police giving rise to the charges herein. Without limiting the generality of the foregoing:

i. During the trial, the Crown led evidence that included not only evidence of communications said to have been exchanged or attempted between the parties during the period specified in Count 1 of the indictment, but also evidence of further communications or attempts at communication that were said to have taken place between the accused and complainant after September 30, 2021; e.g., via “sample screen shots” from a series of further Facebook messages that were said to have been exchanged with Ms F. via a separate Facebook account maintained in the name of “J.F.”, which was said to be an alias used by the accused.

ii. There was no dispute that the aforesaid Facebook messages exchanged via the “J.F.” Facebook account were not provided by the complainant to the police, and then to the Crown, until the week before trial, at which time they were promptly disclosed to the accused and his counsel, but not in a manner the Crown considered adequate to warrant any fair amendment to the allegation specified in Count 1 of the indictment. In particular, Crown counsel acknowledged that, when the matter was proceeding to trial, Mr B. and his counsel understandably did not have any indication that he was being charged with criminal harassment based on alleged communications extending beyond September 30, 2021, to the end of October, 2021, and the Crown therefore expressly disclaimed any effort or request to have communications exchanged or attempted during that period taken into consideration as repeated communications for the purposes of Count 1 of the indictment. The suggested relevance of that evidence, (if any), was limited to what the Crown sought to characterize as messages therein indicating statements against interest by the accused; e.g., acknowledging that he committed violence in relation to the complainant, and/or was expressing corresponding remorse in that regard. I have received and considered such evidence only for that purpose.

9Returning to the essential elements of the offence of criminal harassment, in the particular manner alleged by the Crown in Count 1 of the indictment, a finding of guilt in relation to that charge would require Crown counsel to prove each of the following six essential elements beyond a reasonable doubt:

a. that Mr B. repeatedly communicated either directly or indirectly with S.F. between August 7th and September 30th, 2021;

b. that Mr B. had no lawful authority to engage in such repeated communications with Ms F.;

c. that such repeated communications by Mr B. harassed Ms F.;

d. that Mr B. knew that such repeated communications harassed Ms F.;

e. that such repeated communications by Mr B. caused Ms F. to fear for her safety and/or the safety of her family members; and

f. that the fear of Ms F. in that regard was reasonable in the circumstances.

10By way of general principles and/or considerations applicable to those essential elements that must be established beyond a reasonable doubt in order for Mr B. to be found guilty of criminal harassment, I note that they include the following:

a. To “repeatedly communicate” with another person means to communicate with them more than once. Such communication may be direct, or it may be indirect. It may, but does not have to be, in the same words or by the same means each time.

b. To have “lawful authority” to do something means that the law specifically allows a person to do what Mr B. did, in the circumstances in which he did it.

c. To prove that Mr B.’s conduct harassed Ms F., Crown counsel does not have to show that Ms F. was subjected to repeated little attacks or constant rapid assaults without any break. Rather, Mr B.’s conduct “harassed” Ms F., in the sense required, if it distressed, tormented or badgered Ms F.. Such a determination requires a consideration of what Mr B. did and said, and how he acted in the circumstances that preceded, accompanied or followed them. If what Mr B. did annoyed Ms F. continually or chronically, that essential element of the offence will have been proven.

d. As for whether Mr B. knew that his conduct harassed Ms F., this essential element of the offence involves knowledge or a state of mind; i.e., Mr B.’s statement of mind. In that regard:

i. Crown counsel must prove beyond a reasonable doubt that Mr B. knew that his conduct harassed Ms F.. To “know” something is to be aware of it, at the time one does it.

ii. There is more than one way for Crown counsel to prove that Mr B. knew that his conduct harassed Ms F.. In that regard:

1. Mr B.’s knowledge that his conduct harassed Ms F. is proven if I am satisfied beyond a reasonable doubt that Mr B. was actually aware, (i.e., actually knew), that his conduct harassed Ms F..

2. Mr B.’s knowledge that his conduct harassed Ms F. is also proven if I am satisfied beyond a reasonable doubt that Mr B. was aware or knew that there was a risk that his conduct harassed Ms F., but went ahead anyway, not caring whether the conduct harassed Ms F. or not; in other words, that Mr B. was aware of the risk that his conduct harassed Ms F., but went ahead or proceeded anyway, and acted as he did, despite that risk.

3. Mr B.’s knowledge that his conduct harassed Ms F. also is proven if I am satisfied beyond a reasonable doubt that he should have inquired whether his conduct harassed Ms F., but did not make the inquiry because he did not want to know the truth about Ms F. being harassed; in other words, that Mr B. deliberately failed to inquire about Ms F. being harassed ben though he knew that there was reason to do so.

4. I am mindful that, to prove that Mr B. knew that his conduct harassed Ms F., Crown counsel does not have to prove each possible basis of such knowledge that I have mentioned. One of them is enough.

5. I am also mindful that, as a matter of common sense, a sane and sober person usually knows the predictable consequences of his or her conduct; in other words, that such a possible but not required inference may assist in determining a person’s actual state of mind, and what he or she actually may have known about the consequences of his or her conduct.

e. As for whether Mr B.’s conduct caused Ms F. to fear for her own safety and/or the safety of members of her family, I am mindful that this essential element of the criminal harassment offence concerns the state of mind of Ms F., as a result of what Mr B. did; in other words, the effect Mr B.’s words or conduct may have had on the statement of mind of Ms F. If what Mr B. said or did caused Ms F. to fear for her own safety and/or the safety of members of her family, this essential element has been proven.

f. Finally, as for whether any such fear of Ms F., if established, was reasonable in the circumstances:

i. I am mindful that this essential element of criminal harassment requires consideration of whether the fear of Ms F. for the safety of her safety and/or the safety of members of her family was reasonable in all the circumstances. In other words, it must be determined whether a reasonable person in the same circumstances as Ms F. would fear for her own safety and/or the safety of her family members as a result of what Mr B. did.

ii. In that regard, I also am mindful that a reasonable person is a person of normal temperament, fortitude and level of self-control. Such a person is not exceptionally excitable or easily intimidated or scared. Such a person is also sober, is not drunk, and is aware of the prior history and relationship between the accused and the complainant; i.e., in this case, the prior history and relationship between Mr B. and Ms F..

COUNT 2 – ASSAULT

11Again, the Count 2 charge against Mr B. refers to section 266 of the indictment, which specifies, in part, that “Every person who commits an assault is guilty of … an indictable offence…”

12Count 2 of the underlying indictment, charging Mr B. with assault, reads as follows:

COUNT 2: AND FURTHER THAT J.F.B. STANDS CHARGED THAT he, on or about the 7th day of August in the year 2021, at the City of London in the said Region, [i.e., “the Southwest Region” specified elsewhere in the indictment], did commit an assault on S.F., contrary to section 266 of the Criminal Code of Canada.

13For me to find Mr B. guilty of assaulting Ms F. as charged, Crown counsel must prove each of the following three essential elements beyond a reasonable doubt:

a. that Mr B. intentionally applied force to Ms F.;

b. that Ms F. did not consent to the force that Mr B. applied; and

c. that Mr B. knew that Ms F. did not consent to the force that Mr B. intentionally applied.

14By way of general principles and/or considerations applicable to those essential elements, which must be established beyond a reasonable doubt in order for Mr B. to be found guilty of assault, I note that they include the following:

a. An application of force, in the sense required, may be direct, (through the accused’s use of a part of his body, such as a hand or foot), or indirect, through the accused’s use of an object. In that regard:

i. In this context, “force” includes any physical contact with another person, whether violent or gentle. To be an assault, however, the accused must apply the force intentionally and against the complainant’s will. An accidental touching is not an intentional application of force.

ii. In that regard, the word “intentionally” refers to the accused’s state of mind, (in this case the state of mind of Mr B.), when he is said to have applied force to the complainant, (in this case Ms F.), and requires that the force was applied “on purpose”; in other words, not by accident. To decide whether Mr B. applied force intentionally to Ms F. as alleged requires a consideration of all the surrounding circumstances, including but not limited to the nature of the alleged contact, and any words or gestures that may have accompanied the relevant application of force.

b. As for whether Ms F. consented to any application of force that Mr B. intentionally applied:

i. The required determination in that regard focuses on the state of mind of the complainant, Ms F., at the time of any relevant established application of force. To have “consented” to any such application of force, Ms F. would have to have known what Mr B. was going to do and to have voluntarily decided to let Mr B. do it.

ii. In that regard, I am also mindful that a voluntary decision is one that a complainant makes of his or her own free will, and not a decision made because of the influence of force, threats, fear, fraud or abuse of authority.

iii. I am also mindful that, consistent with s.265(3) of the Code, just because Ms F. may have submitted to any relevant application of force by Mr B., or may not have resisted any such application of force, does not mean that she consented to what Mr B. may have done in that regard. Again, consent to an application of force requires a complainant’s voluntary agreement to an accused doing what he did, in the way in which he did it, and when he did it, and the complainant’s agreement in that regard must be given without the influence of force, threats, fear, fraud or abuse of authority to let the relevant physical contact occur.

c. As for whether the accused Mr B. knew that the complainant Ms F. did not consent to the force Mr B. was said to have applied, in relation to the alleged assault:

i. This essential element obviously focuses on Mr B.’s knowledge or state of mind. In that regard, Crown counsel must prove beyond a reasonable doubt that Mr B. “knew” that Ms F. did not consent to the force that Mr B. was said to have applied in relation to the alleged assault, with knowledge of something once again meaning to be aware of it at the relevant time.

ii. Once again, the Crown is capable of proving the requisite knowledge of the accused Mr B. in a number of alternative ways, (i.e., actual knowledge, recklessness and wilful blindness), which I described earlier in detail, when discussing proof of an accused’s knowledge in the context of addressing Count 1 of the indictment. I therefore will not repeat that discussion again, except to note that the same principles apply in this context as well, including the principle that Crown counsel does not have to prove each possible basis of the accused’s requisite knowledge in relation to Count 2. Proof of one such basis, (any one of them), is enough.

COUNT 3 – ASSAULT WITH A WEAPON

15Again, the Count 3 charge against Mr B. refers to section 267(a) of the Code, which specifies, in part, that “Every person is guilty of an indictable offence… who, in committing an assault … (a) carries, uses or threatens to use a weapon or imitation thereof…”

16Count 3 of the underlying indictment, charging Mr B. with assault with a weapon, reads as follows:

COUNT 3: AND FURTHER THAT J.F.B. STANDS CHARGED THAT he, on or about the 7th day of August in the year 2021, at the City of London in the said Region, [i.e., “the Southwest Region” specified elsewhere in the indictment], did, in committing an assault on S.F., use a weapon, namely a blunt object, contrary to Section 267, clause (a), of the Criminal Code of Canada.

17In that regard, Crown counsel indicated, at the outset of trial, the Crown’s contention that the “blunt object” said to have been used by Mr B. as a “weapon” was a door.

18For me to find Mr B. guilty of assaulting Ms F. with a weapon as charged, Crown counsel must prove each of the following four essential elements beyond a reasonable doubt:

a. that Mr B. intentionally applied force to Ms F.;

b. that Ms F. did not consent to the force that Mr B. applied;

c. that Mr B. knew that Ms F. did not consent to the force that Mr B. intentionally applied; and

d. that a weapon was involved in Mr B.’s relevant assault of Ms F.

19The first three essential elements of the charged “assault with a weapon” offence obviously replicate the essential elements of a simple assault, which I outlined a short time ago in relation to the Count 2 charge of simple assault being faced by Mr B., and I therefore will not repeat my discussion of those three essential elements and applicable principles in that regard again here.

20As for the fourth essential element of the “assault with a weapon” offence, requiring proof beyond a reasonable doubt that a weapon was involved in Mr B.’s relevant assault of Ms F.:

a. I am mindful that a “weapon”, as defined in section 2 of the Code, is anything used, designed to be used or intended for use in causing death or injury to any person, or for the purpose of threatening or intimidating anyone.

b. I also am mindful that, for the Crown to establish that a weapon was involved in an assault committed by Mr B. on Ms F., I must be satisfied beyond a reasonable doubt that Mr B. carried, used or threatened to use such a weapon in assaulting Ms F.; i.e., in intentionally applying force to Ms F. in circumstances where she did not consent to that application of force and Mr B. knew that she did not consent to that application of force.

COUNT 4 – SEXUAL ASSAULT

21Again, the Count 4 charge against Mr B. refers to section 271 of the Code, which specifies, in part, that “Every person who commits a sexual assault is guilty of an indictable offence…”

22Count 4 of the underlying indictment, charging Mr B. with sexual assault, reads as follows:

COUNT 4: AND FURTHER THAT J.F.B. STANDS CHARGED THAT he, on or about the 7th day of August in the year 2021, at the City of London in the said Region, [i.e., “the Southwest Region” specified elsewhere in the indictment], did commit a sexual assault on S.F., contrary to Section 271 of the Criminal Code of Canada.

23For me to find Mr B. guilty of committing a sexual assault in relation to Ms F., Crown counsel must prove each of the following four essential elements beyond a reasonable doubt:

a. that Mr B. intentionally applied force to Ms F.;

b. that Ms F. did not consent to the force that Mr B. applied;

c. that Mr B. knew that Ms F. did not consent to the force that Mr B. intentionally applied; and

d. that the force that Mr B. intentionally applied to Ms F. took place in circumstances of a sexual nature.

24The first three essential elements of the charged “sexual assault” offence obviously once again replicate the essential elements of a simple assault, which I outlined a short time ago in relation to the Count 2 charge of simple assault being faced by Mr B., (and referenced again in relation to the Count 3 charge of assault with a weapon), and I therefore will not repeat my discussion of those three essential elements and applicable principles in that regard again here.

25Having said that, additional legislative provisions and caselaw has established and/or emphasized that the approach required in relation to those first three essential elements is more nuanced in the context of sexual assault. For example:

a. In relation to the second of those essential elements, (in this case focused on whether Ms F. did not consent to the force that Mr B. may have intentionally applied), while the principles outlined above must still be considered, additional considerations include the following:

i. Our courts have emphasized, in the context of sexual assault in particular, that the issue of consent focuses on a complainant’s subjective state of mind at the time of the relevant application of force; i.e., that the approach to be taken in that regard is purely subjective, with the state of the mind of the complainant being determinative. In other words, if a complainant testifies that she did not consent to a particular application of force, and a trier of fact accepts that evidence, then there plainly and simply was an absence of such consent. See, for example, R. v. Barton, 2019 SCC 33, at paragraph 89.

ii. For the purposes of the offence of sexual assault addressed by section 271 of the Code, s.273.1(1) of the Code generally establishes, subject to qualifications set forth in s.273.1(2), that “consent” means the “voluntary agreement of the complainant to engage in the sexual activity in question”. In that regard, our appellate courts also have emphasized that, in the context of sexual assault, consent is the conscious agreement of the complainant to engage in every sexual act in a particular encounter with another person. See, for example: R. v. J.A., 2011 SCC 28, at paragraph 31; R. v. Barton, supra, at paragraph 88; and R. v. G.F., 2021 SCC 20, at paragraph 29.

iii. Pursuant to s.273.1(1.1) of the Code, consent to sexual activity also “must be present at the time the sexual activity in question takes place”. In that regard, our courts have emphasized that the only relevant time for determining whether a sexual assault complainant was consenting to particular sexual activity is the particular time at which the sexual activity in question is occurring. The presence or absence of a complainant’s consent accordingly can change at any point in time during a sexual encounter. If a sexual assault complainant was not subjectively consenting in her mind to particular sexual activity while that sexual activity was taking place, then there was no consent to such sexual activity in the sense required, even if a complainant may have expressed consent to such sexual activity before or after it occurred. See, for example: R. v. J.A., supra, at paragraphs 45 and 46; and R. v. Cordeiro, 2024 ONCA 868, at paragraphs 3-4 and 11-12. Without limiting the generality of the foregoing, the law in this area does not recognize or permit any concept of “broad advance consent”; i.e., a legally erroneous notion that a sexual assault complainant agreed to future sexual activity of an undefined scope. See, for example: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paragraph 26; R. v. J.A., supra, at paragraphs 44-48; and R. v. Barton, supra, at paragraph 99.

iv. While a sexual assault complainant’s testimony is the only source of direct evidence as to the complainant’s state of mind at the time of particular sexual activity, credibility and reliability of such testimony must still be assessed by a trier in light of all the evidence. That assessment nevertheless must not be tainted by reliance on discredited myths and stereotypes; e.g., as to how “real” victims of sexual abuse supposedly are expected to behave. The reality is that victims of sexual abuse may react in many different ways, for many different reasons, (including but not limited to fear, embarrassment and lack of understanding), and there simply is no “normal” or “typical” manner of reaction to such abuse against which a particular sexual assault complainant’s reaction should be measured or assessed. See, for example: R. v. D.D., 2000 SCC 43, at paragraph 26; R. v. Lacombe, 2019 ONCA 938, at paragraph 33; and R. v. A.B.A., 2019 2019 ONCA 124, at paragraphs 5-8.

v. As emphasized by the Supreme Court of Canada in R. v. G.F., supra, at paragraphs 33-36, provisions such as subsections 265(3), 273.1(2) and 273.1(3) of the Code reflect a legal reality that, in the context of determining whether the Crown has proved lack of complainant consent to intentional application of force as an essential element of the offence of sexual assault, the presence of actual subjective consent of a complainant at the relevant time, or a reasonable doubt as to whether actual subjective consent existed, does not necessarily end the matter and result in an acquittal. To the contrary:

1. Any such actual subjective consent by a complainant must also be effective “as a matter of law”, and the law sometimes “steps in” to say that, despite the complainant’s subjective agreement to certain activity, that ostensible consent will not be given legal effect; i.e., in certain circumstances, the complainant’s subjective consent will be treated as having been “vitiated” by operation of law.

2. Sometimes, the policy that vitiates a complainant’s ostensible consent to certain activity emanates from the common law.

3. At other times, the policy that vitiates a complainant’s ostensible consent to certain activity has been codified by legislation. For example:

a. Subsection 265(3) sets out a number of factors which, (as noted above), will vitiate a complainant’s subjective consent to the intentional application of force to him or her, including circumstances where such ostensible subjective consent will not be given legal effect because it was the product of force, threats or fear of force, certain types of fraud, or the exercise of authority.

b. The considerations outlined in s.265(3) of the Code apply to all forms of assault, including sexual assault. However, pursuant to ss.273.1(2) and 273.1(3) of the Code, an ostensibly obtained consent to sexual activity also may be vitiated in specified circumstances that include but are not limited to situations where:

i. the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority, as addressed by s.273.1(2)(c) of the Code;

ii. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity, as addressed by s.273.1(2)(d) of the Code; and/or

iii. the complainant, having consented to engage in sexual activity, expresses by words or conduct a lack of agreement to continue to engage in the activity, as addressed by s.273.1(2)(e) of the Code.

4. When ostensible subjective consent is the product of such factors, the law regards the complainant as having been deprived of control over who touches his or her body and how, and there is no consent in law. In that regard, such factors or considerations do not “prevent” the existence of a complainant’s subjective consent to certain activity, and sexual activity in particular. Rather, they recognize that even if the complainant has permitted the sexual activity in question, there are circumstances in which that subjective consent will be vitiated, (i.e., deemed to be of no force or effect), in which case the Crown will still have proved lack of complainant consent to such activity, (e.g., the second essential element of the offence of sexual assault), despite a finding that the complainant subjectively consented to such activity or a reasonable doubt as to whether the complainant did so.

5. By way of other general principles relevant to the possible application of subsections 265(3), 273.1(2) and 273.1(3) of the Code, I note that they include the following:

a. If the Crown relies upon such provisions to vitiate a complainant’s ostensible consent to an alleged sexual assault under section 271 of the Code, the onus is on the Crown to establish the requisite factual underpinning for application of those provisions. See, for example, R. v. A.H., [2000] O.J. No. 3258 (C.A.), at paragraph 12.

b. Appellate authority has emphasized that the clear aim of such provisions is the protection of the vulnerable and the weak, and the preservation of the right to freely choose to consent to activity, and sexual activity in particular. See, for example, R. v. A.H., supra, at paragraph 17, and the authorities cited therein, as well as R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at paragraph 3.

c. In relation to s.265(3)(b) of the Code, whereby no consent is obtained where a complainant submits or does not resist by reasons of threats or fear of the application of force to the complainant or to a person other than the complainant, I note that a complainant’s fear need not be reasonable nor communicated to the accused in order for consent to be vitiated pursuant to s.265(3) of the Code. Moreover, while the plausibility of alleged fear and/or any overt expression of such fear are obviously relevant to assessing the credibility of a complainant’s claim the complainant consented to an intentional application of force because of such fear, the approach to such determinations is once again subjective; i.e., focusing on whether the complainant honestly had such fear. See, for example, R. v. Ewanchuk, supra, at paragraphs 38-39.

d. In relation to s.265(3)(d) of the Code, whereby no consent is obtained where the complainant submits or does not resist by reason of the exercise of authority:

i. Exercise of authority in the sense required is not limited to relationships where there is a right to issue orders and to enforce obedience. Where there is a significant power imbalance between the accused and the complainant, that can have an effect on a complainant’s apparent consent to conduct. In particular, it is open to the court to find that there was no consent by reason of an overwhelming imbalance of power in the relationship between an accused and a complainant. See R. v. Saint-Laurent (1994), 1993 CanLII 4380 (QC CA), 90 C.C.C. (3d) 291 (Que.C.A.), leave to appeal to S.C.C. refused 66 Q.A.C. 160n.

ii. More generally, an accused will be regarded as standing in a position of authority over a complainant if the accused can coerce the complainant into consent by virtue of their relationship. See R. v. Geddes (2015), 2015 ONCA 292, 322 C.C.C. (3d) 414 (Ont.C.A.).

iii. Moreover, as reflected in the wording of s.265(3)(d), its provisions do not operate simply because a position of authority between the accused and the complainant has been established. The Crown must also prove beyond a reasonable doubt that the accused secured the complainant’s apparent consent to the relevant activity which is the subject matter of the charge by the exercise of that coercive authority over the complainant; i.e., that the complainant submitted or did not resist “by reason of … the exercise of authority”. See R. v. Matheson (1999), 1999 CanLII 3719 (ON CA), 134 C.C.C. (3d) 289 (Ont.C.A.), and R. v. Geddes, supra.

e. In applying s.273.1(2)(c) of the Code, whereby no consent is obtained if an accused induces the complainant to engage in the activity by abusing a position of trust, power or authority:

i. Courts have turned to authorities addressing section 153 of the Code for guidance as to the meaning of a “position of trust” and/or a “position of authority”. See, for example, R. v. T.R., [1996] O.J. No. 4945 (Gen.Div.), at paragraphs 15-17.

ii. As to what kind of situations fall within the category of a “position of trust”:

1. In this context, what is in question is not the specialized concept of the law of equity called a “trust”. See R. v. P.S., [1993] O.J. No. 704 (Gen.Div.), at paragraph 21, affirmed [1994] O.J. No. 3775 (C.A.).

2. Nor are sentencing decisions referring to “trust” necessarily concerned with the concept of trust contemplated in this context. See R. v. D.B.L., (1995), 1995 CanLII 2632 (ON CA), 25 O.R. (3d) 649 (C.A.), at paragraph 15.

3. Recognizing that the concept of a “position of trust” is difficult to define in the absence of a factual context, and that it would be inappropriate to attempt a precise delineation of its limits in a factual vacuum -- see R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at paragraph 37 -- our courts instead have provided more general descriptions and indications of the type of relationship contemplated by reference to a “position of trust” in this context. For example:

a. It has been said that the question of whether an accused was in a “position of trust” vis-à-vis a complainant focuses on a broad social or societal relationship between two people. In such a context, appropriate definitions of “trust” include “a firm belief in the reliability or truth or strength of a person”, and “confidence in or reliance on some quality or attribute of a person”. Primarily, a “position of trust” is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached. See R. v. P.S., supra, at paragraphs 36 and 37; and R. v. Audet, supra, at paragraph 35.

b. It also has been said that “trust” is a value that a complainant is entitled to put on a relationship; a relationship that develops by natural evolution over a period of time, (i.e., as opposed to a “new” relationship), and one which involves the trust held by a complainant in the good judgment and good intentions of the recipient of that trust. See R. v. Ogden, [1993] N.S.J. No. 346 (S.C.), at paragraphs 13 and 17.

4. While certain persons may routinely be regarded as occupying a position of trust in relation to certain other individuals by virtue of their status or relationship vis-à-vis such individuals, in the absence of a relevant statutory definition, the issue of whether an accused is in a “position of trust” vis-à-vis a complainant must remain fact-dependent, and no fixed definition of “position of trust” will fit all cases. See R. v. D.B.L., supra, at paragraph 11.

5. It should also be remembered that, while the existence of a trust relationship and corresponding “position of trust” often will be accompanied by indicia of a “position of authority”, (e.g., an authority by the dominant person over the other), that is not essential to the existence of a “position of trust”. In other words, there may be cases where there is a trust relationship and corresponding “position of trust”, but no “position of authority”. In particular, while there may be some similarities between a position of “trust” and a position of “authority”, the terms “trust” and “authority” are not interchangeable. To the contrary, a “position of trust” may be “somewhat different” or “significantly” different from a “position of authority”. See R. v. L.R.L., [2000] N.S.J. No. 251 (C.A.) at paragraphs 101 and 103; R. v. D.B.L., supra, at paragraph 11; R. v. P.S., supra, at paragraph 37; and R. v. Ogden, supra, at paragraph 13.

iii. As to what kind of situations fall within the category of a “position of authority”, beyond analogies to the “exercise of authority” referenced in s.265(3)(d) of the Code:

1. In the absence of a statutory definition, interpreting what constitutes a position of “authority” in this context begins with consideration of the ordinary meaning of the words Parliament has used. In that sense, “authority” has been defined as the “right to command”, a “power or right to enforce obedience”, a “power to influence the conduct and actions of others”, and “superiority of merit or seductiveness that compels unconstrained obedience, respect and trust”. See R. v. Audet, supra, at paragraph 34.

2. A “position of authority” also invokes notions of power, and the ability to hold in one’s hands the future or destiny of the person who is the object of the exercise of the authority. See R. v. Kyle (1991), 1991 CanLII 11758 (ON CA), 68 C.C.C. (3d) 286 (Ont.C.A.), at paragraphs 3-4; and R. v. P.S., supra, at paragraph 37.

3. However, to be in a “position of authority” vis-à-vis another does not necessarily entail the exercise of a legal right in relation to another. It also includes a lawful or unlawful “power to command” which one person may acquire, in the prevailing circumstances, in relation to another. In other words, the term “position of authority” is not restricted to cases in which the relationship of authority stems from a role of the accused, but extends to any relationship in which the accused actually exercises such a power over the complainant. Parliament intended to direct the analysis to the nature of the relationship between individuals, rather than their status in relation to each other. See Léon v. La Reine, 1992 CanLII 3818 (QC CA), [1992] R.L. 478 (Que.C.A.), at p.483, and R. v. Audet, supra, at paragraphs 33 and 34.

iv. Appellate authority has noted that there is “little direct authority” on the meaning of “position of power” referred to in s.273.1(2)(c) of the Code, except to say that it is probably a broader term, and therefore less formalized or structured, when contrasted to positions of “trust” or authority”, and apparently connotes an “imbalance of power”. Again, see R. v. A.H., supra, at paragraph 17.

v. Inducing consent by abusing the relationships set out in s.273.1(2)(c) does not imply the same degree of coercion contemplated by s.265(3)(d) of the Code, which speaks to consent obtained where a complainant submits or does not resist by reason of the “exercise of authority”. It nevertheless does include circumstances in which a person in a position of trust over another used the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity. See, for example: R. v. Lutoslawski, 2010 ONCA 207, affirmed 2010 SCC 49, [2010] 3 S.C.R. 60; and R. v. Snelgrove, supra.

vi. As with s.265(3)(d) of the Code, merely establishing the existence of a relationship described by s.273.1(2)(c) will not suffice to engage its operation. Rather, the operation of s.273.1(2)(c) of the Code, so as to vitiate the ostensible consent of a complainant to sexual activity, expressly requires not merely the existence of a relationship involving a position of trust, power or authority, but also proof beyond a reasonable doubt that the accused induced the complainant to engage in the relevant activity by actually abusing or misusing that position. See R. v. A.H., supra, at paragraph 13, and R. v. Audet, supra, at paragraphs 13, 22 and 23.

b. In relation to the third of the essential elements required for sexual assault, focused in this case on whether Mr B. knew that Ms F. did not consent to the force that Mr B. may have intentionally applied), while the principles outlined above must still be considered, (including the various alternative ways in which Crown Counsel may prove that an accused knew that a sexual assault complainant did not consent to particular force that the accused intentionally may have applied), additional considerations include the following:

i. A defence of honest but mistaken belief in communicated consent, in relation to a charge of sexual assault, is a denial of the mens rea which must be proven beyond a reasonable doubt to establish the offence. To make out such a defence, the accused must have an honest but mistaken belief that the sexual assault complainant, by words or actions, actually communicated consent to the sexual activity underlying the charge of sexual assault. See, for example: R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at paragraphs 39 and 43-44; R. v. Ewanchuk, supra, at paragraph 46; R. v. J.A., supra, at paragraphs 37, 42 and 48; and R. v. Barton, supra, at paragraph 91. In relation to such a defence, the relevant inquiry therefore focuses on the behaviour of a sexual assault complainant that is alleged to involve such communication, and “admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent”. See R. v. Park, supra, at paragraph 44; R. v. Barton, supra, at paragraph 91; and R. v. H.W., 2022 ONCA 15, at paragraph 48.

ii. Section 273.2 of the Code also provides that, in a number of specified situations, it is not a defence to a charge of sexual assault that the accused believed the complainant consented to the activity that forms the subject matter of the charge. For example:

1. Pursuant to s.273.2(a)(ii) of the Code, such a defence is not available where the accused belief in that regard arose from the accused’s recklessness or wilful blindness.

2. Pursuant to s.273.2(a)(iii) of the Code, such a defence is not available where the accused’s belief arose from any circumstances referred to in subsections 265(3), 273.1(2) or 273.1(3) of the Code, discussed earlier, which negate the existence of complainant consent.

3. Pursuant to s.273.2(b) of the Code, such a defence is not available where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; i.e., to determine and confirm the complainant’s voluntary agreement to the relevant sexual activity. See R. v. Daigle, 1998 CanLII 786 (SCC), [1998] 1 S.C.R. 1220, at paragraph 3; and R. v. Barton, supra, at paragraph 104. In that regard:

a. An accused is not required to take all reasonable steps in that regard. See R. v. Barton, supra, at paragraph 104. However, if the accused takes no reasonable steps, or a reasonable person would have taken additional steps in the specific circumstances, the accused will not have met the threshold required by s.273.2(b) of the Code to rely on such a defence. See R. v. R.G., 1994 CanLII 8752 (BC CA), [1994] B.C.J. No. 3094 (C.A.), at paragraph 29; and R. v. Dippel, 2011 ABCA 129, at paragraphs 22-23; R. v. Barton, supra, at paragraph 104; and R. v. I.A.D., 2021 ONCA 110, at paragraph 13.

b. Analysis of whether or not an accused has taken such reasonable steps, required in the circumstances, is a highly fact-specific exercise, and there is no exhaustive list of what may constitute a requisite reasonable step in that regard. However, in its recent decision in R. v. Al-Akhali, 2025 ONCA 229, at paragraphs 24-31, our Court of Appeal noted six important principles to be borne in mind in that regard:

i. Parliament’s purpose of protecting people from and preventing non-consensual sexual activity drives the reasonable steps assessment; i.e., favouring greater care and requiring more, not fewer, steps.

ii. A reasonable person would take more steps if he or she did not believe that the complainant had communicated consent, or if he or she was aware of a risk of non-consent.

iii. A reasonable person would take greater care if he or she knows of circumstances that call out for caution, such as: an intention to engage in more invasive and/or risky sexual activity, like unprotected sexual intercourse; a lack of knowledge, familiarity and/or past sexual experience with the complainant; a complainant’s rejection of advances before and/or during a sexual encounter; knowledge that a complainant is or appears to be intoxicated and/or otherwise vulnerable; and/or knowledge that a complainant appears to be unconscious owing to sleep or other reasons.

iv. Unless actions unambiguously communicate consent, a reasonable person takes more steps; i.e., bearing in mind that non-verbal conduct often lacks the clarity of a simple verbal “yes” or “no”, and can easily be misunderstood or lead to unfounded assumptions.

v. A reasonable person takes steps to ascertain consent to each sexual act; a requirement which may, depending on the circumstances, demand the taking of additional steps to confirm communicated consent where there are multiple acts involved in sexual activity, such as a progression from consent to undressing to a contemplated act of sexual intercourse.

vi. A suggested “reasonable step” cannot be based on a mistake of law. For example, for reasons noted elsewhere herein, steps to ascertain communicated consent that are met with silence, passivity or ambiguous conduct are not reasonable. Neither is “testing the waters” by engaging in what is essentially non-consensual sexual touching; i.e., sexual touching initiated without communicated consent having been obtained.

4. Pursuant to s.273.2(c) of the Code, such a defence is not available where there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. In that regard:

a. A sexual assault complainant’s silence, passivity or ambiguous conduct does not amount to consent, and offers no defence. The law requires evidence of positive consent by the sexual assault complainant, by words or conduct, to ground any honest belief that the complainant effectively said “yes” to particular sexual activity through the complainant’s words and/or actions. Without limiting the generality of the foregoing, “no” means “no”, and only “yes” means “yes”, even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one to which a complainant routinely has consented in the past. See, for example: R. v. Ewanchuk, supra, at paragraphs 19, 47, 49 and 52; and R. v. Goldfinch, 2019 SCC 38, at paragraph 74.

b. Without limiting the generality of the foregoing, there is no doctrine of implied consent to sexual activity. See, for example: R. v. Ewanchuk, supra, at paragraph 103; and R. v. G.F., supra, at paragraphs 1 and 32. It is an error of law to assume that a complainant implicitly has given consent to any and all sexual activity unless and until a complainant says “no”, and/or to believe that the absence of signs of disagreement can be substituted for affirmative communication of consent. See R. v. Barton, supra, at paragraph 118. Nor is a complainant deemed to consent if the complainant does not protest or resist. See R. v. M.L.M., 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3, at paragraph 2; R. v. Ewanchuk, supra, at paragraphs 51 and 101; and R. v. J.A., supra, at paragraph 37.

26In relation to the fourth and final essential element of sexual assault, focused in this case on whether Mr B. intentionally applied force to Ms F. in circumstances of a sexual nature:

a. A sexual assault is any intentional application of force, (e.g., any intentional physical contact with another person, even an intentional but gentle touching), which occurs in circumstances of a sexual nature so that the sexual integrity of the complainant is violated.

b. It includes any act that is meant to degrade or demean the complainant for an accused’s sexual pleasure.

c. Whether or not an intentional touching takes place in circumstances of a sexual nature is determined objectively, and is established if a trier is satisfied beyond a reasonable doubt that the sexual context of the touching would be apparent to any reasonable person who saw it happen; e.g., having regard to such matters as the part or parts of the body the accused touched, the nature of the contact, any words accompanying such actions, the situation in which the assault occurred, and all other circumstances surrounding the conduct.

COUNTS 5 and 6 – MISCHIEF

27As noted above, the remaining two counts of the underlying indictment in this case charge Mr B. with two counts of mischief.

28In particular, the Count 5 and Count 6 charges against Mr B. refer to subsection 430(4) of the Code, which specifies, in part, that “Every person who commits mischief in relation to property, other than property described in subsection [430(3) of the Code, which refers to property that is a testamentary instrument or the value of which exceeds five thousand dollars], is guilty of … an indictable offence…”

29Count 5 of the underlying indictment, charging Mr B. with mischief, reads as follows:

COUNT 5: AND FURTHER THAT J.F.B. STANDS CHARGED THAT he, on or about the 7th day of August in the year 2021, at the City of London in the said Region, [i.e., “the Southwest Region” specified elsewhere in the indictment], did willfully damage personal property, the property of S.F., the value of which did not exceed five thousand dollars, and thereby commit mischief, contrary to Section 430, subsection (4) of the Criminal Code of Canada.

30Apart from its different numbering, Count 6 of the underlying indictment, also charging Mr B. with mischief, reads in a manner identical to Count 5 and as follows:

COUNT 6: AND FURTHER THAT J.F.B. STANDS CHARGED THAT he, on or about the 7th day of August in the year 2021, at the City of London in the said Region, [i.e., “the Southwest Region” specified elsewhere in the indictment], did willfully damage personal property, the property of S.F., the value of which did not exceed five thousand dollars, and thereby commit mischief, contrary to Section 430, subsection (4) of the Criminal Code of Canada.

31It was not disputed that, although Counts 5 and 6 have identical wording, I was to approach the two counts, (as the parties did), on the basis:

a. that Count 5 relates to the damage or destruction allegedly inflicted by Mr B. on the mobile phone of Ms F.; and

b. that Count 6 relates to the damage or destruction allegedly inflicted by Mr B. on other personal items of clothing and accessories belonging to Ms F. including, in particular, her designer purse.

32For me to find Mr B. guilty of mischief as charged, Crown counsel must prove each of the following three essential elements beyond a reasonable doubt:

a. that Mr B. interfered with property having a value less than five thousand dollars;

b. that Mr B.’s conduct was unlawful; and

c. that Mr B.’s conduct was wilful.

33By way of general principles and/or considerations applicable to those essential elements, which must be established beyond a reasonable doubt in order for Mr B. to be found guilty of mischief contrary to s.430(4) of the Code, I note that they include the following:

a. In relation to whether Mr B. interfered with property having a value less than five thousand dollars:

i. This essential element of the charged mischief offence has to do with Mr B.’s conduct towards property, or towards persons who are lawfully using, enjoying or operating property. Property has a wide definition, but includes things or objects that can be seen or touched.

ii. There are numerous ways in which one person may interfere with another person’s property, which include the following:

1. destroying property;

2. damaging property;

3. rendering property useless, inoperative and/or ineffective; and

4. obstructing, interrupting and/or interfering with the lawful use, enjoyment or operation of property, or any person who is lawfully using, enjoying or operating the property, (even if that person is not an owner of such property), bearing in mind that “enjoyment of property” is not limited to simply having or being in possession of such property, but also includes exercising a right in relation to such property beyond the personal or actual enjoyment of it.

iii. Crown counsel does not have to prove every kind of possible interference with property for which the law provides. Establishing one form of such interference will suffice.

b. In relation to whether any such interference with property by Mr B. was unlawful:

i. This essential element of the charged mischief offence has to do with the nature of Mr B.’s conduct. In particular, Crown counsel must prove beyond a reasonable doubt that Mr B.’s conduct, (i.e., his interference with property or a person lawfully using, enjoying or operating property), was unlawful.

ii. Mr B.’s conduct was unlawful if Mr B. had no lawful justification, excuse or colour of right to do what he did in relation to the property.

iii. A lawful justification or excuse for interfering with property provides a basis on which the law considers that a person’s conduct is justified and, as a result, lawful.

iv. A colour of right is an honest belief in a state of facts which, if it existed, would be a legal justification or excuse for a person’s conduct. The belief must be honestly held, but it does not have to be reasonable. The reasonableness or otherwise of the belief, however, is a factor for a trier to take into account in deciding whether any belief was honestly held.

v. It is not up to an accused to prove that he had a lawful justification or excuse, or a colour of right for interfering with the property in question. It is up to Crown counsel to prove beyond a reasonable doubt that the accused’s conduct was unlawful. In other words, Crown counsel must prove beyond a reasonable doubt that the accused’s conduct was not only without lawful justification or excuse, but also that it was without colour of right.

c. In relation to whether Mr B.’s interference with property was wilful:

i. This essential element of the offence has to do with Mr B.’s state of mind at the time he interfered with the property. In that regard, Crown counsel may prove that Mr B.’s interference with property was wilful in either of two ways:

1. Mr B.’s conduct was wilful if he meant to interfere with the property in any way.

2. Mr B.’s conduct also was wilful if he knew that he would probably interfere with the property in any way, but went ahead and did it anyway, being reckless whether such interference with property happened as a result.

ii. Crown counsel does not have to prove that Mr B.’s interference with the property was wilful in both of the ways I have noted. Proof of either form of wilful interference with property is sufficient.

iii. To determine Mr B.’s state of mind, and what he meant to do towards to the property or anyone lawfully using, enjoying or operating it, I must consider all of Mr B.’s words and conduct before, during and after he interfered with the property, as that may shed light on what he meant to do when he interfered with the property.

34Throughout my assessment of whether all essential elements of each of the six offences charged against Mr B. in the underlying indictment have been established beyond a reasonable doubt, I have regard to all of the principles and observations I have outlined.

General principles

35Before turning in more detail to the specifics of this case, I nevertheless also think it helpful to outline a number of additional general principles I bear in mind throughout my approach to this matter.

36Many of those additional general principles are similarly outlined or reflected in comments routinely provided through judicial instructions to jurors, and include the following:

i. First, I have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter, Mr B. is presumed to be innocent, in relation to each of the six charges set forth in the underlying indictment, in respect of which he has entered a plea of “not guilty”, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to an alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the essential elements of each offence charged against Mr B. that are not admitted, never shifts. In particular, Mr B. has no obligation whatsoever to establish his innocence.

ii. Second, in relation to the “reasonable doubt” standard, and as per the guidance offered by the Supreme Court of Canada in authorities such as R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320:

1. I am ever mindful that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, nor a doubt based on sympathy for, or prejudice against, any person involved in this trial. A “reasonable doubt” is, instead, a doubt that arises logically from the evidence, or the absence of evidence.

2. Moreover, it is not enough for me to believe that Mr B. is “probably” guilty or “likely” guilty of an offence. Proof of “probable” guilt or “likely” guilt falls short of proving guilt “beyond a reasonable doubt”, and is not proof of guilt beyond a reasonable doubt.

3. On the other hand, I also bear in mind that it is nearly impossible to prove anything to an absolute certainty, that “absolute certainty” accordingly is a standard of proof that is impossibly high, and that Crown counsel is not required to meet that standard of proof.

4. In essence, in order for me to find that Crown counsel has proven beyond a reasonable doubt that Mr B. is guilty of a charged offence, I must be sure that Mr B. committed the offence. If, following careful consideration of all the evidence, (including witness testimony, exhibits and any agreed facts or admissions), there remains in my mind a reasonable doubt as to whether Mr B. committed a charged offence, I must find him not guilty of that offence.

iii. Third, how much or little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify, one way or the other. My duty is to consider all the evidence, including careful consideration of each witness, to decide how much or little I believe and accept of what each witness has said. At all times, I am mindful that it is the quality of evidence, rather than the quantity of evidence, that determines persuasive force and/or whether or not proof has been established beyond a reasonable doubt.

iv. Fourth, as emphasized in decisions such as R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and R. v. Neff, [2012] O.J. No. 5618 (S.C.J.), our law generally does not require corroboration of a complainant’s evidence in order to found a conviction. Moreover, that general principle is reinforced in relation to sexual assault by section 274 of the Code, which specifically indicates, inter alia, that if an accused is charged with sexual assault, no corroboration is required for a conviction. The sworn testimony of a sexual assault complainant, standing alone, may be sufficient to establish guilt in relation to a charged sexual assault offence beyond a reasonable doubt, provided that testimony is found to be credible and reliable. Because the standard of proof beyond a reasonable doubt is a high one, triers of fact frequently may look for corroboration where guilt or innocence depends in large measure or entirely on the testimony of a single witness. However, while such evidence is often helpful, it is not a requirement.

v. Fifth, while there is no prescribed formula or method for assessing the testimony of witnesses, I am mindful of various considerations frequently employed by triers of fact to help decide how much or how little I will believe and rely upon the testimony of any witness, bearing in mind that I am free to accept some, none or all of the testimony of any witness. In particular such triers routinely consider matters such as the following:

1. whether a witness seemed honest;

2. whether a witness had any reason to not tell the truth, or give evidence more favourable to one side or the other, such as an interest in the outcome of the case;

3. whether a witness had the opportunity and ability to make accurate and complete observations about an event or occurrence addressed in his or her testimony;

4. whether the witness seemed to have a good memory, or any reason to remember or forget certain events or details, (which in turn might depend on such things as whether the event or occurrence addressed by testimony was something unusual or routine, or not of any obvious importance at the time);

5. whether any memory difficulties seemed genuine or made up as an excuse to avoid answering questions;

6. whether the testimony given by the witness was really what he or she personally saw or heard, or an account possibly based on information or statements provided by others;

7. whether the testimony of a witness seemed reasonable and consistent as he or she gave it, and whether it was similar to or different from what other witnesses may have said about the same events;

8. whether there were any inconsistencies within the testimony of a witness, or with earlier statements or actions by the witness, and if there were, whether they related to things that were important or minor details, reflected honest mistakes or deliberate lies, had any sensible explanation, or really made the main points of his or her testimony more or less believable and reliable; and

9. the manner or demeanor of a witness while he or she was testifying – while nevertheless also bearing in mind that the existence of many variables, (such as the inherently uncommon experience of testifying, and the different and varied abilities, values and life experiences of individual witnesses), prevents demeanor from ever being the only or most important factor in deciding what testimony to accept.

vi. Sixth, I am mindful of the law regarding motive, from two perspectives; i.e., possible motive of an offender to commit an offence, and possible motive of a complainant to fabricate allegations. In particular:

1. In relation to possible motive of an offender to commit an offence, (which is relevant to this case insofar as the Crown contends that the alleged offences of Mr B. were motivated by anger and/or jealousy because the complainant Ms F. had indicated a desire to end her relationship with Mr B., and/or because Mr B. believed that Ms F. had renewed her relationship with a former romantic partner and/or otherwise had been unfaithful or “cheating” on him), I am mindful of the instructions we commonly provide to our juries in relation to such matters, which include the following:

a. Motive is a reason why somebody does something. However, it is not one of the essential elements that Crown counsel must prove, in relation to any charged offence. It is just part of the evidence; one of many things for a trier to consider in determining whether an accused is guilty or not guilty of an offence. In particular, it is a piece of circumstantial evidence that should be considered along with all the rest of the evidence.

b. In that regard, motive usually relates to an end or goal or objective that a person wants to achieve. Evidence of the existence of such an objective therefore may make it somewhat more likely that the person took steps to achieve that objective.

c. A person nevertheless may be found guilty of an offence whatever his motive, or even without a motive.

d. Absence of motive, however, is also a circumstance to be considered; one which may tend to support the presumption of innocence and a person’s denial of guilt. Having said that, it also must be remembered that a person also may be found not guilty of an offence, even if the person did have a motive to commit that offence.

2. In relation to possible motive of a complainant such as Ms F. to fabricate allegations and evidence, (which is relevant to this case insofar as it was suggested during defence cross-examination that Ms F. was engaged in such fabrication), I am mindful of general principles in that regard emphasized repeatedly by our Court of Appeal in decisions such as R. v. L.L., 2009 ONCA 413, at paragraphs 44 and 53, and R. v. Bartholomew, 2019 ONCA 377, [2019] O.J. No. 2371 (C.A.), at paragraphs 20-23. Without limiting the generality of the foregoing:

a. From a prosecutor’s point of view, a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth.

b. Conversely, from the defence perspective, proof that the complainant has an ulterior motive, or a motive to fabricate his or her allegations and evidence, may provide a compelling alternative to truth of the complainant’s allegations.

c. However, as recognized and emphasized earlier in these reasons, an accused, (and Mr B. in particular), is not required to prove anything, and accordingly has no obligation to prove that the complainant has an ulterior motive or a motive to fabricate his or her allegations and evidence. At all times, the onus remains on the Crown to prove guilt beyond a reasonable doubt.

d. Moreover, while evidence of a complainant having a motive to fabricate allegations and evidence may be lacking, it is important to recognize and remember that the absence of evidence of motive to fabricate is not the same thing as absence of motive to fabricate. In other words, there is a significant difference between absence of proved motive and proved absence of motive. In particular:

i. Simply because there is no apparent reason for a witness to lie, it does not logically follow that the witness must be telling the truth. Put another way, the fact that a complainant has no apparent motive to fabricate does not necessarily mean that the complainant has no motive to fabricate.

ii. The reality is that a person’s motives can sometimes be hidden. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all. It accordingly is dangerous and impermissible to move from a complainant’s apparent lack of motive to fabricate to a conclusion that the complainant must be telling the truth.

e. Although absence of an apparent motive to fabricate is a proper factor to consider in assessing the credibility of a complainant, it is but one of many factors to be considered.

37The general principles and considerations I have mentioned so far are applicable to all criminal cases, regardless of the nature of the particular offence or offences charged against an accused.

38However, as noted above, our courts also have emphasized certain additional principles and considerations applicable to cases involving allegations of traumatizing offences such as sexual assault.

39While some of those additional principles and considerations already have been mentioned, (in the context of my addressing the essential elements to be proved in relation to each offence, including the charge of sexual assault advanced in Count 4 of the underling indictment in this case), I think it helpful to repeat and expand upon such matters; i.e., for the purpose of clarity, and to underscore that I have borne them in mind throughout the course of making my necessary determinations in this case.

40In that regard, and as emphasized, in authorities such as R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), affirmed R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, and R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833 (C.A.):

a. As mentioned earlier, our courts now reject dated stereotypical assumptions and myths of how persons react to trauma such as sexual assault, and instead recognize that there actually is no inviolable rule on how people who are the victims of sexual assault will behave.

b. In many cases, the reality of such variable responses also has shaped how our courts now address the possibility of delayed reporting of offences such as sexual assault. In particular, our courts now recognize that some victims will report such an offence immediately, while other victims may delay disclosure for a substantial period of time for a variety of legitimate reasons, such as embarrassment, humiliation, lack of understanding or knowledge, a desire to avoid the destruction of domestic or personal relationships, and/or fear of reprisals from the accused. Indeed, some victims may choose to never disclose such abuse voluntarily, although it occasionally comes to light in other ways. For such reasons, a delay in disclosure of sexual misconduct, standing alone, will never give rise to an adverse interference against the credibility of a complainant.

c. For similar reasons, it is an error of law, (noted earlier in passing), to draw adverse interferences against the credibility of a sexual assault complainant by purporting to measure his or her reactions to such an alleged offence by reference to some misguided notional concept of how the victim of such an offence normally would be expected to react and behave in such circumstances. Again, there simply are no such “norms” of reaction or behaviour that one should expect of such victims, and making express or implicit use of such supposed but non-existent benchmarks of ordinary behaviour, (e.g., by shrouding them in mistaken notions of supposed “common sense”), therefore involves fallacious reasoning. To cite but a few examples in that regard:

i. Suggestions that sexual assault complainants who do not raise an alarm, resist with forceful struggle or fight back are in fact consenting to sexual touching rely on archaic, outmoded and unreliable stereotypes. See R. v. Seaboyer, supra; and R. v. Dadson, 2018 ONSC 4823, at paragraph 11. Such realities and principles similarly were echoed by Justice Copeland, (as she then was), in R. v. Solomon, 2020 ONSC 2640, [2020] O.J. No. 2526, at paragraph 41. The issue in such cases is the existence of consent, and not why the complainant did not fight back.

ii. Suggestions that a victim of sexual assault should be expected to flee before, during or immediately after a sexual assault, and/or thereafter assiduously avoid an assailant, perpetuate myths and stereotypes about the nature of sexual assaults, and also ignore the law. See R. v. Ewanchuk, supra, at paragraph 95, and R. v. Dadson, supra, at paragraphs 27-29. The law of sexual assault does not impose a requirement to flee or avoid; it imposes a requirement of consent.

iii. More generally, it is wrong to suppose that the thoughts and responses of sexual assault victims at or around the time of the offence will conform consistently with detailed rational analysis, carefully weighing all relevant factors that might militate in favour of one course of action or another. It is far more likely that a person in that position might have fleeting thoughts of different sorts that were not the subject of such detailed rational analysis. Exposure of rational inconsistencies through cross-examination of a complainant accordingly should not be given undue weight, although it remains a piece of the overall mosaic of the case to be considered. See R. v. Dadson, supra, at paragraph 12.

d. On another note, relating to improper reliance on myths and stereotypes, our appellate courts have emphasized that there is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences. Indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true. See R. v. Osolin, [1993] 4 S.C.R. No. 135, at paragraph 50.

e. Having noted all of the above, I also bear in mind the additional observation of Justice Copeland (as she then was) in R. v. Solomon, supra, at paragraphs 42-44; i.e., that recognition of the need to eliminate such discredited myths and stereotypes from reasoning in sexual assault trials, and the determined efforts of Parliament and our courts in that regard, were designed to put complainants in sexual assault cases on an equal footing with complainants and witnesses in trials involving other types of charges, and not to put complainants in sexual assault cases on a better footing than other such complainants. As with any witness in any type of case, the evidence of a complainant in a sexual assault trial must be assessed rationally and objectively in the context of all the evidence presented at trial, and with regard to the applicable burden of proof and other principles noted above. For example, recognition that not all complainants will cry out or fight back in response to a sexual assault, and that complainants may react in different ways to a sexual assault, does not prohibit a trial judge from assessing, based on the evidence presented at trial, whether or not a complainant’s assertion that he or she complied with a request for sex out of fear is credible and/or consistent with the evidence as a whole. In assessing the credibility of a complainant’s evidence, a trial judge must consider the totality of the evidence presented at trial, including any ambiguous or contradictory conduct by the complainant. In short, evidence sometimes may be properly relevant to an issue at trial, (including complainant credibility), despite the reality that, if used in a different way, it might be said to involve engagement in prohibited use of discredited stereotypes and myths. In that regard, see also R. v. Ewanchuk, supra, at paragraphs 29-30; R. v. D.D., supra, at paragraphs 60-65; and R. v. Holland, 2020 ONSC 846, at paragraph 89.

41I will have more to say about such legislative provisions and general principles in the course of this decision, including their potential application to the underlying circumstances in this case.

42However, with all of the above principles and those mentioned hereafter in mind, I turn next to a consideration of the specific evidence tendered in this case.

Review of evidence

43The trial of this matter began with formal admissions by the defence made pursuant to s.655 of the Code in relation to various matters, including jurisdiction, identity of the accused Mr B., the dates on which the alleged offences are said to have occurred, continuity of the photographs and electronic messages that were tendered as exhibits, and the intimate partner nature of the relationship between the accused Mr B. and the complainant Ms F.

44Those initial admissions were supplemented, during the course of the trial, by formal indications that the parties had agreed on certain additional facts, (also to be treated as admissions pursuant to s.655 of the Code), including the following:

a. The relevant 9-1-1 call to the police on August 7, 2021, (described in greater detail during the course of testimony outlined below), was made at 18:16:37 on the 24-hour clock; i.e., at approximately 6:16pm.

b. Dylan Warford, a police constable, then arrived on scene, (i.e., at the relevant [specified] residence), at 20:25:33; i.e., at approximately 8:25pm.

c. The accused, Mr B., actually was not present at the relevant [specified] property during the time of police attendance there on August 7, 2021.

45Beyond those formal admissions, I was presented with detailed evidence that extended over the course of three and a half days, prior to the receipt of closing submissions on the fourth and final day of trial.

46Without limiting the generality of the foregoing, I was presented with:

a. testimony from two witnesses called by the Crown, namely:

i. the complainant S.F.; and

ii. R.P., an individual who, (no one seemed to dispute), was on August 7, 2021, a partner of the accused’s brother J., and either living or frequently residing at the same [specified] home where the accused Mr B. was living at the time; and

b. twelve numbered trial exhibits introduced through the Crown’s witnesses, including:

i. a photograph of the exterior of the residence located at the relevant specified address on [the specified street] here in the city of London, including its front yard and driveway area, taken from the street;

ii. a collection of seven photographs said to be depict physical injuries inflicted upon Ms F. by Mr B., including injuries to her face and upper left thigh;

iii. a collection of 14 photographs said to depict damage inflicted by Mr B. upon an iPhone and designer purse belonging to Ms F.;

iv. a screen recording, (divided into two parts), depicting preserved messages on the Facebook Messenger account of Ms F.;

v. another photograph of facial injuries said to have been inflicted upon Ms F. by Mr B., bearing “timestamp” information indicating that the photograph was taken in Toronto on August 25, 2021;

vi. a 37-page collection of “screenshots” capturing and preserving, to some extent, certain messages and indications of connected or attempted audio calls between Mr B. and Ms F.;

vii. a further 15-page collection of such “screenshots” said to have been captured via the new/replacement iPhone of Ms F.;

viii. an additional four-page collection of further “screenshots” captured by Ms F. of messages exchanged between her and Mr B., with one including a partially nude depiction of Ms F. that led to my direction that the particular exhibit be sealed pending any further order of the court;

ix. a nine-page collection of “screenshots” that were said to be “samples” of messages exchanged between someone self-identifying as “J.F.”, (said to be an alias used by Mr B.), and Ms F.;

x. a further five-page collection of “screenshots” of messages exchanged between the said “J.F.” and Ms F.;

xi. a screenshot taken by Ms F. from her “Notes” application; and

xii. a further five pages of “screenshot” captures of messages exchanged between the said “J.F.” and Ms F. on Facebook Messenger.

47Before moving on from those initial comments relating to the exhibits presented for my consideration, I think it helpful to also note and emphasize my mindfulness that the preserved messages exchanged or said to have been exchanged between the parties include many instances of what the law generally would regard as prior consistent statements by the complainant Ms F., (i.e., statements made by the complainant prior to trial, consistent with her testimony at trial alleging that the accused had committed the offences charged in this proceeding), and the impermissible and permissible uses of such evidence. In that regard:

a. I am very mindful that, as a general rule, a party may not ask questions or present evidence solely to bolster the credibility of his own witness. It therefore also is generally impermissible to lead evidence proving that, at some point before testifying at trial, a witness made statements consistent with his or her trial testimony. In particular, where such evidence is adduced to demonstrate such consistency, it violates the rule against “self-serving” evidence; i.e., evidence that is self-serving because tendering the evidence for such a purpose represents an effort to bolster the credibility of a witness based on what the witness himself or herself has said. The main reason for the rule is that the credibility of a statement is not enhanced simply because the same statement has been made before. If admitted to show that a witness is speaking honestly, the evidence of prior consistent statements is therefore of no value; i.e., because witnesses may just as easily repeat a lie as the truth. In addition, where the prior statement is being offered to establish the truth of what it asserts, the hearsay rule is infringed. See R. v. Donardo, 2008 SCC 24, at paragraph 36.

b. I nevertheless also am mindful that, in some cases, it is necessary to admit the fact that prior consistent statements have been made for proper purposes unrelated to demonstration of consistency intended to bolster credibility of a witness; e.g., in order to ensure that a “narrative” unfolds properly, (i.e., such that a trier is able to follow the narrative and sequence of unfolding of events being offered through evidence), and/or to provide proper and necessary context for understanding other evidence. As emphasized by our Court of Appeal in R. v. F.(J.E.), 1993 CanLII 3384 (ON CA), [1993] O.J. No. 2589 (C.A.), a trier sometimes must have the “chronological cohesion” of a full account in order to understand a case properly; i.e., with the story unfolding naturally, and without any distracting or potentially misleading gaps.

c. In this case, the Crown expressly disclaimed any intention to present or rely upon any prior consistent statements of the complainant Ms F., contained within the preserved electronic communications exchanged between the parties, for any purpose relating to establishing their possible truth; e.g., to demonstrate consistency intended to bolster credibility of Ms F. Nor have I relied upon that evidence for any such purpose.

d. The Crown instead proffered such evidence, including prior consistent statements of Ms F., to provide a complete and necessary narrative; e.g., a narrative including the existence, nature and extent of communications between the parties between August 7, 2021, and September 30, 2021, necessary to a determination of whether Mr B. committed criminal harassment as alleged in Count 1 of the indictment, and/or to provide necessary context for understanding the import of some of the preserved statements and responses made by Mr B. during communications following August 7, 2021, in order to determine whether they properly should be regarded as admissions against interest. I have received and had regard to evidence of prior consistent statements of Ms F. only for those limited and proper purposes.

48At the close of the Crown’s case, (i.e., after the Crown completed its presentation of the evidence noted above), the accused Mr B. chose not to present any evidence.

49However, counsel for Mr B. did cross-examine both Crown witnesses, following which both also were re-examined to some extent.

50While I have considered and have regard to all of that evidence, (i.e., the oral testimony I received as well as the exhibits that were tendered), I will not purport to reiterate or describe all of it in complete detail here.

51For organizational purposes, I will begin with an outline or summary of certain testimony provided by the Crown’s two witnesses, followed by further comments about some of the considerations that went into my assessment of witness credibility and reliability, before finally turning to more specific consideration of the particular evidence relating to the essential elements of the charged offences, in order to determine appropriate verdicts.

OUTLINE OF WITNESS TESTIMONY

52As noted above, I received testimony at trial from R.P., which included the following:

a. At the time of trial, Ms P. was 33 and living outside of London. However, back in August of 2021, she was residing at the specified residence on [a specified street] here in London because she was in a dating relationship with the accused’s brother J.. At the time, (and as I noted earlier), the home was occupied by J.B., (the accused’s mother), K.L., (the boyfriend of the accused’s mother), J., (one of the accused’s brothers), Ms P., A.B., (another brother of the accused), and the accused, Mr B.. However, J. and A. were both away from the residence for weeks at a time; i.e., when working as security guards in Nunavut.

b. In August of 2021, Ms P. had been living in the [specified] home for over two years, and close to three years. During that time, she generally enjoyed living at the home. In particular, she got along well with J.B., and felt that things at the home generally seemed to be going well “for the most part”; i.e., apart from the accused having to move into the home as well, a few months or more prior to August of 2021, after “something had happened” at his prior residence, which in turn led to what Ms P. described as “a little bit of tension” in the home. However, Ms P. indicated that also she had known and got along well with Mr B. before he too moved into the [specified] residence, (e.g., conversing with him, and meeting his three children), and she felt that things were still “generally pretty normal” for her in the home after Mr B. moved in there as well.

c. Ms P. provided details of the relevant “two floor” home, (which she described as having a “ground floor” and a “basement area” below), and the general configuration and occupation of some of the rooms therein. In particular, she recalled that J.B., K.L. and A.B. occupied bedrooms on the “ground floor”, while she and J. shared a bedroom adjacent to a “living space”, (i.e., a living room), in the basement. By way of further details concerning the layout of the basement of the home, Ms P. described and confirmed the following:

i. At the bottom of the stairs leading down to the basement was a hallway or “landing” area, approximately eight by nine feet in size, with doors leading to a number of other rooms.

ii. One of those rooms was a basement bathroom, (equipped with a standing shower, toilet and sink), with its doorway situated almost immediately to the left, (a “hard left”), at the bottom of the stairs.

iii. The next basement room reached from the bottom of the stairs, with an entrance situated to the right of the aforesaid basement bathroom doorway, was a laundry room with a door that “could not close properly” and therefore was always left widely open.

iv. To the side of that laundry room was an additional bedroom that had been “built in” to the basement for occupation by Mr B., when he moved into the home; i.e., the last room one would reach along that “landing” area at the bottom of the stairs leading down to the basement, before reaching the “back” of that landing area.

v. At the end of “back” of that landing area one reached at the bottom of the stairs was as set of “French doors”, (i.e., two adjacent doors meeting in the middle of the entrance), leading into the basement “living room” area, through which one had to pass to reach, (through an additional door), the basement bedroom Ms P. shared with her boyfriend J..

d. Ms P. recalled that, in the time leading up to August 7, 2021, Mr B. had been in a relationship with a woman named “S.”, (also referred to herein as Ms F.), who “lived in the Toronto area”, but whose surname Ms P. candidly could not recall. In that regard:

i. Ms P. nevertheless recalled first meeting Ms F. “maybe only for a few months” before August 7, 2021, and thereafter seeing Ms F. “at least” five to 10 times.

ii. Ms P. also recalled Ms F. staying overnight at the [specified] residence “on weekends”. In cross-examination, Ms P. acknowledged that Ms F. may have stayed for longer periods of time, as she admittedly did not recall what she described as the “exact ins and outs” of the household, and noted that the door to the basement bedroom occupied by Mr B. was closed “more often than not” when Ms P. passed it while proceeding to and from her own bedroom in the basement.

iii. Ms P. described her relationship with Ms F., in August of 2021, as “friendly acquaintances”. They had a number of conversations, during which Ms P. learned that Ms F., like Mr B., was “recovering from addictions”, and also “not employed at the time”. Ms P. and her boyfriend J. also had dropped Ms F. off at her Toronto residence on one occasion.

e. As for events said to have taken place on Saturday, August 7, 2021:

i. Ms P. recalled that she, Mr B. and K.L. were not employed at the time, with Mr L. being on disability because of a specified medical condition. J. and A. were both working, and away in Nunavut. J.B. was working rotating day and night shifts, in a manner that sometimes required her to work on Saturdays. While Ms P. was unsure of J.B.’s precise work schedule on the day in question, she did remember that J.B. was not present in the home during the events Ms P. recalled happening at the home that day.

ii. Ms P. recalled sleeping at the [specified] residence the night of August 6, 2021, leading into August 7, 2021, but had no knowledge or awareness of Ms F. perhaps arriving at the home at some point during the night, before Ms P. left the home the home on the morning of August 7th to visit with her friends “E.” and “S.”. At some point during that visit, Ms P. and her friends decided they would spend that evening socializing while drinking some alcohol, watching movies and playing board games, and therefore decided it was best if Ms P. gathered some belongings that would allow her to stay the night at the home of her friends; i.e., so that she would not be travelling that evening. Her friends therefore drove her back to the [specified] home, parking in the street across from the house, (as the driveway was already occupied by vehicles), and waited in the car while Ms P. went inside to prepare an overnight bag. At the time of her corresponding return to the [specified] residence that Saturday afternoon, Ms P. had not yet consumed any intoxicants, and was entirely sober.

iii. Ms P. remembered returning to the [specified] residence with her friends at approximately 4:00pm on the day in question. She also recalled walking up the driveway of the property, between the vehicles already parked there, and towards a gate leading to an exterior door at the left side of the house, (when looking at the house from the street), and the home’s backyard, when she saw Mr B. and Ms F. sitting in the backyard gazebo, (a structure Ms P. described as a covered area with bug filtering screens one could see and hear through, situated approximately 30 feet or less from the exterior side door of the house), and heard them arguing in raised voices. In that regard, Ms P. confirmed that she was able to see and hear the interaction and movements of Mr B. and Ms F. from the time she first observed them in the backyard gazebo, until they entered the house through its side door a short time later. In particular, during the course of her testimony, Ms P. remembered the following aspects of the conservation and interactions she heard and observed in that regard:

1. She heard yelling and arguing, and believed that could very well have been coming from both of Ms F. and Mr B.; i.e., with both being involved in the argument, although Ms P. could only make out certain specifics, (described below), of what was being said.

2. She says she then saw Mr B. “snatch” or “rip” a phone out of the hand of Ms F., while the couple was still at or near the gazebo.

3. Ms P. then heard Ms F. “calling for her phone to be returned to her”, and indeed “yelling at [Mr B.] to return her phone to her”, without Mr B. saying anything in reply “at that moment”.

4. As Ms P. was entering the backyard area, she then saw Mr B. walk towards and into the exterior side door of the house, and proceed down the stairs inside to the basement of the home, with the phone in his hand, and Ms F. quickly following and going into the home after him.

iv. Ms P. believed she entered the house through the same side door approximately 30 seconds after Mr B. and Ms F. had done so. By that time, Mr B. and Ms F. had gone down “to their space” in the basement, and Ms P., from her position at the top of the stairs to the basement, could see the couple at the bottom of those stairs. At that point, Ms P. then saw and heard a further interaction between the couple. In that regard:

1. By the time of that further interaction, Ms P. could see that the phone Mr B. had “snatched” from Ms F. in the gazebo and carried into the house had been returned to the possession of Ms F..

2. Ms F. was then heard to say “I’m not going to give you my phone”, followed by “I’ll unlock it for you … but I’m going to hold it in my hand”.

v. At that point, Ms P. then proceeded past the couple and that area at the bottom of the stairs and around to her own space in the basement, (i.e., the basement bedroom she shared with J.), to start packing a bag for her intended overnight stay at the home of a friend. In the result, Ms P. did not see where Mr B. and Ms F. may have gone after that, (e.g., into the nearby basement bedroom used by Mr B. or the nearby basement bathroom), and thereafter did not see the couple again before she left the home approximately 15 minutes later.

vi. While in her own basement bedroom packing her overnight bag, Ms P. nevertheless began to hear things that led her to believe there was “some kind of fight going on downstairs”. While she could hear arguing, she admittedly could not make out precisely what was happening at that point. Such concerns nevertheless prompted her to head upstairs, to make a report in that regard, when she heard someone else enter through the front door of the home; an entry that could be heard from her location in the basement. In particular, Ms P. testified that, when she heard that someone else had come home, she proceeded upstairs, (without seeing Mr B. and Ms F. while doing so), to see who had entered the home, and found that K.L. had stopped by intending to walk the dog. Ms P. therefore let Mr L. know that there appeared to be some kind of fight going on downstairs, hoping that Mr L. would “try to speak to someone or intervene” in that regard; i.e., as she was packing a bag and leaving to spend the night at a friend’s house, and would not be home until the following day. Ms P. then went back downstairs and to her bedroom, to continue packing her overnight bag.

vii. Ms P. says that, while once again in her basement bedroom and continuing to pack her bag, she heard (but did not see) Mr L. knock on a door in the basement, leading to a discussion between Mr B. and Mr L., during which Ms P. heard Mr B. tell Mr L. that whatever was happening was “none of his fucking business”, at which point Ms P. then heard (but did not see) Mr L. go back upstairs.

viii. Ms P. indicated her belief that, as she was finishing packing her bag and about to depart, Mr L. already had left the house, (as he had come home to walk the dog, and the dog she had seen on her arrival at the house that afternoon was no longer there by the time of her departure), and there was no one other than Mr B. and Ms F. in the home with her. At that point, Ms P. then heard:

1. “more screaming” from Ms F., with Ms F. yelling “Stop”;

2. Mr B. calling Ms F. a “fucking cheating bitch”;

3. Mr B. apparently opening a door, (which Ms P. believed to be the door to his bedroom), and yelling something about Ms F. having to “get out” before the door was then “slammed again”, just once;

4. The voice of Ms F. then more clearly crying out for Mr B. to “stop hitting” her, “stop hurting” her, and generally to “stop”; and

5. sounds which Ms P. initially described as including a “loud thud”, which Ms P. then repeatedly described in cross-examination to be “thudding” in the plural, which Ms P. believed to be the sound of a body being slammed against a door, accompanied by “gasping” sound she believed to be coming from Ms F.

ix. In relation to the last point, (i.e., the “thudding” sounds that were heard by Ms P.), Ms P. was asked in cross-examination about the source of those particular sounds, and whether they could have involved the door of the basement bathroom rather than the door of the basement bedroom occupied by Mr B.. In that regard, Ms P. felt sure that the final “loud thud” she heard and described came from a body being slammed up against the closed door of the bedroom occupied by Mr B. and Ms F., as that sound occurred as she was passing that particular door, (i.e., coming out of the basement living room area and entering the basement landing area), on her way out of the residence. At that point, at least, she was sure that Mr B. and Ms F. were inside that basement bedroom, as the sounds she was hearing at that point were coming from inside that bedroom.

x. Although Ms P. admittedly did not see any physical interaction or fighting between Mr B. and Ms F. when she heard those words and noises suggesting an argument, she formed a belief at the time that Mr B. was beating Ms F., which led to Ms P. experiencing a panic attack that prevented her from calling the police herself; i.e., as she was “afraid for [Ms F.’] life”, and Mr B. was a number of inches taller than Ms P. was. Ms P. believed she nevertheless was able to text her friend E., (who was waiting outside), telling her friend to call “9-1-1” as there was “something going on”.

xi. As Ms P. then made her way out of the basement and the house, Ms P. nevertheless paused briefly at the then unoccupied basement bathroom beside the stairs, in order to “grab toiletries” from that room needed for her overnight stay, (e.g., her toothbrush and dental floss), at which time she found the bathroom door open and the bathroom light on, and also discovered that there was broken glass and pieces “from something” all over the floor of that bathroom.

xii. Before heading up the stairs from the basement to exit the house, Ms P. also “called out” to Mr B. and Ms F. to indicate that the police had been called and were on their way. However, there was no response to her comments, and no apparent reaction in that regard, as the worrying noises coming from the room did not stop.

xiii. Upon Ms P. then exiting the house, (having been inside for what she believed to be a total time of approximately 15 minutes), and making her way into the vehicle in which her friends were waiting, Ms P. was “very distraught”. E.’s phone was passed to her, and Ms P. began providing her information to the waiting 9-1-1 dispatcher as the vehicle proceeded to the parking area of a nearby community centre where Ms P. could “calm down”; i.e., rather than stopping at the White Oaks mall, located approximately 600 meters from the [specified] residence. Ms P. thereafter provided a statement to police at approximately 9:00pm that evening.

f. Ms P. confirmed that she and J. moved out of the [specified] residence in September of 2021, and that she was no longer in a relationship with J. by the time of trial.

53I also received extended testimony from S.F., the complainant, who was in the witness box for almost three full days. The sworn evidence she provided included the following:

a. Ms F., 27 at the time of trial, candidly described how she previously had struggled with drug addiction; an addiction that grew from her use of a prescription medication for use only in case of extreme panic attacks, (i.e., Ativan, a form of Benzodiazepine), which then led to an addiction to Xanax, a related narcotic in respect of which she did not have a prescription, which nevertheless was being supplied to her by friends. Her addiction in that regard grew worse over the course of the COVID-19 pandemic, (when she lost her job doing assistant work for a real estate agency), and eventually led to her six-week placement in an inpatient treatment and rehabilitation program at a facility located in [a specified town], Ontario, starting on March 23, 2021.

b. It was during her time at that [specified town] treatment and rehabilitation facility that Ms F. first met and began a relationship with the accused, Mr B.. In that regard:

i. At the time, Mr B. was also a patient at the facility, as a result of what Ms F. understood to be an addiction to crack cocaine.

ii. Mr B. arrived at the facility a week or so before Ms F., and left before she did. However, while both were there, they participated in the same classes and programs. In doing so, they spent approximately 12 hours a day together, and shared intensely personal information about themselves, (including details of their lives, past relationships and past addiction issues), both in group sessions and during “one on one” conversations.

iii. Ms F. described how she and Mr B. were attracted to each other, (despite his being seven or eight years older that she was), and began a personal relationship while at the [specified town] facility. They did so despite their understanding that such relationships during rehabilitation were discouraged by the facility and treatment program; i.e., such that they were not free to acknowledge their relationship at the time. However, they continued to communicate constantly once Mr B. had left the facility and, once both had “finished rehab”, their relationship progressed to the point where they made it, (as Ms F. described it), an “official” relationship.

c. In or around May of 2021, Mr B. visited Ms F. at the home she shared with her parents and two brothers in Vaughan, Ontario; visitation that included one overnight stay. However, her parents did not welcome the idea of Ms F. bringing “a boy” into their home, without their invitation, so no similar visits were attempted. Ms F. and Mr B. instead decided that their further interactions would take place here in the city of London, (where Mr B. was residing at the specified [specified] home of his mother), although Ms F. had no prior familiarity with London.

d. Ms F. described that [specified] address in considerable detail, including particulars of its exterior, (e.g., its driveway, gate, backyard, front porch and garden), and particulars of the rooms in its upstairs area and basement. She also provided details of others living there with the accused during the time of her visits; i.e., the accused’s mother J.B., his mother’s partner K., his brother J. and J.’s girlfriend R., and another brother whose name Ms F. candidly could not recall.

e. Ms F. also described the relationship she and the accused enjoyed between May of 2021 and the time of their “breakup” on August 2, 2021. In that regard:

i. Ms F. says her primary residence was still at her parents’ home in Vaughan, but she generally was staying with the accused in the [specified] home; e.g., remaining in London for varying lengths of time, (ranging from two or three days to a week), and travelling back to Vaughan only three or four times during that period.

ii. She recalled initially staying with the accused in a bedroom on the upper level of the [specified] residence, but that she and the accused thereafter occupied a bedroom the accused had built for himself in the home’s basement. She described that basement bedroom, (including its décor, furnishings and other contents – including numerous knives that she personally “hated” but which the accused always kept on display in various locations around the bedroom), in considerable detail. She also indicated that the bedroom in question was located on the left, after one descended the stairs to the basement.

iii. Ms F. generally had positive memories of her relationship with the accused; e.g., describing it as “comfortable”, “kind” and “patient”. Indeed, she emphasized that she had “nothing bad to say” about the accused and his behaviour during that time. In particular, she noted that Mr B. did not lapse into any addictive behaviour while she was with him, (although he informed her later that he had “slipped up” with his use of alcohol in her absence), that he never exhibiting any threatening behaviour over the course of the relationship, and that she had “no reason to ever believe [she] was putting herself in a bad situation where [she] could one day be harmed”.

f. Ms F. also explained that there was no animosity associated with her decision to break up with Mr B. on August 2, 2021, after a final week’s stay with Mr B. at the [specified] residence in London. As she described it, the breakup between her and Mr B. happened for reasons that had “nothing to do with one another”. It was simply a result of their different circumstances; e.g., their different ages, Mr B. living in London while she lived in Vaughan, and Mr B. already having three children while she was “just starting [her] life”.

g. Ms F. believes that she and Mr B. would not have remained in consistent contact in the days following that breakup, had it not been for Mr B. struggling with the breakup more than she was, and exhibiting what she regarded as mental instability in that regard; e.g., with Mr B. frequently expressing thoughts of suicide and describing the manner in which he would kill himself. In that regard, Ms F. recalled, with considerable upset, that Mr B. had not only made remarks indicating “Nobody can ever love me”, “Everybody’s better off without me”, “I should just kill myself”, and “I know everyone will be happier when I’m gone”, (despite his having three young daughters), but also had gone so far as to show Ms F. via Facetime communications, while she was back at her home in Vaughan, that he had visited a hardware store and purchased certain items to be used in his planned suicide, and had brought them home to his bedroom. In the result, Ms F. felt not only concern and upset, but that she was responsible for the situation. She therefore not only reached out to Mr B.’s mother for assistance, but made herself available to Mr B. at any time of the day or night, with the two calling each other, as she tried to persuade him not to kill himself. In the circumstances, Ms F. was worried about Mr B. committing suicide, and was not sleeping well.

h. As of August 6, 2021, Ms F. said, she and Mr B. had been broken up for approximately four days, were still speaking about Mr B.’s suicidal thoughts, and still trying to see if they could remain friends, keep in some form of contact, and see if they might “find each other years down the line”. (In cross-examination, Ms F. clarified and confirmed that they had broken up “over the phone”, and that both wanted to see each other, although it was unclear if was going to end in “closure and moving on” or with their somehow “getting back together and figuring things out”. As she put it, “Everything was up in the air at that point”.) Ms F. spent the day at her parents’ home in Vaughan, speaking periodically with the accused, but generally at home by herself; e.g., as her parents had decided to go out. At some point during that day or evening, she and the accused made arrangements to speak in person again about their breakup; i.e., with plans to have Mr B. travel from London to Vaughan to pick Ms F. up from her home, and bring her back to London. In that regard, Ms F. admittedly could not recall the precise details of how the plan came about, apart from a recollection that they originally had contemplated Mr B. picking her up later in the day of August 7, 2021, but somehow then ended up agreeing to “speed up the plan” so that Mr B. could pick her up early that morning. In particular, the final plan in that regard contemplated Mr B. leaving London at approximately 2:00am or 3:00am, so as to arrive at the home of Ms F. in Vaughan in the early morning hours of August 7, 2021. In that regard, Ms F. noted that she did really want to see Mr B., as she still loved him and was concerned for his welfare, and told him so. However, she was troubled by the situation and, at a time she recalls being approximately 8:00pm or 9:00pm on the night of August 6, 2021, she therefore took an Ativan tablet, (i.e., one such tablet), to calm her nerves; i.e., so that she would feel, as she described it, “calmer”, “happier” and “a bit looser” about the situation. In that regard, she testified that was the first time she had lapsed and taken such a narcotic related to her addiction since completing her rehab program. At some point after taking that Ativan, she then fell asleep.

i. As for the events of August 7, 2021, which formed the basis of the charges against the accused set forth in Counts 2 through 6 of the underlying indictment:

i. At approximately 5:00am that morning, Ms F. woke to an angry call from the accused. In particular, Mr B. was yelling because he apparently had physically arrived at the Vaughan home of Ms F. approximately 20 minutes earlier, had tried to reach her without success, (because she had slept through his efforts reach her by phone), and he therefore had left her home and started to drive back to London without her. Ms F. then saw that she had received approximately 15 to 20 missed calls from Mr B.. She acknowledged in cross-examination that she likely was still under the influence of Ativan at the time, as the effects of the Ativan she took at 8:00pm or 9:00pm the night before would have carried over past midnight and into the early morning hours of the following day.

ii. In the result, Mr B. said that he would turn around to come back for Ms F., but also insisted that she start walking, (despite the early morning hour), so that he would not have to drive all the way back to her parents’ home, and Ms F. complied with that direction. A short time later, carrying only her phone, a designer purse, her wallet, (which had no cash in it and may or may not have contained any identification, as she had no driver’s licence at the time), and the clothes she was wearing, (as she recalled still having personal items including a toothbrush, make up and clothing at the [specified] residence in London), Ms F. therefore found herself walking from the neighbourhood of her parents’ home to the nearby “main road” passing through the area; i.e., a road she believed to be Major Mackenzie Drive in Vaughan. While walking, she continued to communicate by phone with Mr B., who made her promise to delete the voicemail messages he had left for her, without ever listening to them; i.e., as he had said things he “didn’t mean”, and that he would “never forgive” Ms F. if she listened to the messages. Although she had not noticed them earlier, Ms F. then saw that the 15 to 20 missed calls to her from Mr B. that morning had been accompanied by a number of voicemails. Ms F. admittedly then told Mr B. that she would not listen to those voicemails.

iii. Ms F. recalled Mr B. then meeting and picking her up while she was still walking in Vaughan. She had no memory of being concerned about his sobriety at the time, but did recall him being angry with her for falling asleep, his calling her names, (e.g., a “fucking bitch”), and his emphasizing that, if she listened to the threatening voicemails he had left for her, that would “just confirm everything he knew about [her] being dishonest and a bad person”. In response, Ms F. says, she was just apologizing and “trying to de-escalate” the situation. She also recalled being extremely tired and still feeling the effects of the Ativan she had taken, such that she fell asleep in the car and did not wake up until they reached the [specified] residence in London. She could not recall the precise time they got there, although it was light outside, and she assumed their arrival at the house in London was sometime around 7:00am or 8:00am, based on the time Mr B. had picked her up in Vaughan. She could not recall speaking with Mr B. at all when they arrived at the [specified] home, and believed they instead went straight to Mr B.’s basement bedroom where they both went to sleep.

iv. Over the course of her testimony, Ms F. acknowledged that some details of what initially happened after she woke later that day were somewhat vague in terms of location and sequence, and her testimony in that regard was not altogether consistent and complete, although she had a firm memory of certain events taking place. In that regard:

1. She initially could not recall the precise time of her waking, noting that she did look at any clock or other timepiece at the time, and had no particular reasons to do so. She just remembered it being “bright outside” and “warm”, such that it “wasn’t still morning time”. In cross-examination, however, she supplemented that earlier testimony by thereafter indicating a belief that she and Mr B. had woken up “in the late afternoon”, at approximately 5:00pm; a time estimate derived from her intervening reference to the times indicated on text messages she had sent to her former boyfriend and father that morning, which were supplied to her during the course of the trial, as referenced in further detail below. She also indicated a belief that, by that time, (i.e., 5:00pm, and before the violent events she would be describing took place), the effects of the Ativan she had taken the night before had ended; i.e., that she had “slept it off” by then, with the Ativan no longer affecting her level of consciousness, based on her experience with what she described as the medication’s “half-life”.

2. She had no memory of Mr B. consuming any alcohol or drugs that day, and believes he too was sober throughout the events that followed.

3. Ms F. nevertheless did have a memory of being temporarily alone without Mr B. shortly after they had woken up, (possibly because he had gone to the bathroom or to smoke a cigarette, although Ms F. acknowledged having no specific memory in that regard), and then remembering his comments about the unheard voicemails he had left for earlier that morning. Realizing that she had a right to listen to those voicemails, she then began doing so. She therefore started playing one of them on her phone, (an “iPhone 11”), and recalled hearing Mr B. say, in the first such recorded message, (i.e., during the first few seconds of that recording), that he “couldn’t believe” her, “couldn’t believe [she had] done this”, and was “never going to forgive [her]”, before Mr B. returned, realized what she was doing, (i.e., listening to the voicemails he had left earlier that day), got angry, and physically grabbed her phone from her hand. In that regard:

a. Ms B. initially indicated her belief that the events in that regard had occurred inside the [specified] residence after she woke up in that residence on August 7, 2021, and before she and Mr B. had gone outside.

b. During the course of her testimony, however, Ms B. then also recalled using her phone in the gazebo of the property on the day in question, and realized that must have happened prior to Mr B. then taking and damaging/destroying her phone in the manner described below. Her memory in that regard also was refreshed, during the course of her multi-day testimony in chief, after she had been supplied the evening before with text messages she had sent to her father and her former boyfriend on August 7, 2021, around 5:00pm and prior to the destruction of her phone, asking for their help, and if they could come and get her. She then recalled sending those messages while she was in what she called the “cabana” of that residence, (i.e., the structure otherwise identified as the property’s gazebo), prior to the destruction of her phone that day. (In that regard, she had a firm memory of texting her former boyfriend from the gazebo, and believed she had texted her father from there as well, although she acknowledged during cross-examination that she possibly had sent her father a text from the basement bedroom.) She also noted that, while she had managed to supply her former boyfriend with the [specified] residence in London, she “never had the chance” to do the same for her father; i.e., because Mr B. had taken her phone. The messages to her former boyfriend and father had not remained on her phone, (although they were retrievable via an “iCloud” backup), as she had taken steps to delete them.

c. In the result, Ms F. believed that Mr B. initially may have taken her phone away while she was in the bedroom, before she somehow got it back and made her way to the “cabana” or gazebo where Mr B. took the phone from her again, although she candidly had difficulty recalling how or why she had made her way to the “cabana” or gazebo that day, and thought she had been there only for a few minutes. She disagreed with suggestions, put to her in cross-examination, that Mr B. had “kicked her out” of the [specified] residence at that point; i.e., indicating her belief that had occurred later in the timeline of events that day.

4. Ms F. candidly acknowledged that she could not recall with certainty whether or not Mr B. was with her in the “cabana” or gazebo at the time, (although she thought he probably was), and also did not remember how she then got from the “cabana” or gazebo to the basement bathroom of the [specified] residence, except for knowing that she was outside and somehow got back inside, and definitely remembered having chased Mr B. into that basement bathroom in an effort to get her phone back from him. In that regard:

a. She remembered in particular that Mr B. wanted to delete the voicemails he had left for her earlier that morning, which she wanted to hear, and that he then wanted her to “unlock” her phone for him.

b. She also recalled wanting to ensure that Mr B. would not be able to read text messages she had exchanged with other individuals about Mr B.’s mental state, (e.g., sharing concerns with her female best friend about Mr B.’s threats of suicide), as she feared that Mr B. reading such messages would only aggravate his perceived mental instability in the wake of the couple’s break up.

c. For such reasons, Ms F. did not want Mr B. to have unrestricted access to the contents of her phone; i.e., by her simply “unlocking” it via entry of the relevant passcode before then handing the phone over to Mr B.. In the result, Ms F. was quite certain that she never provided Mr B. with access to her unlocked phone that day, and that Mr B. never had such access. To the extent Mr B. was angry and/or jealous because he became aware that Ms F. had been communicating with her former boyfriend, that indication had been provided to Mr B. already and directly by Ms F., and not by Mr B. reading anything on her phone.

5. Ms F. also recalled Mr B. thereafter then throwing her phone on the ground, (i.e., on the floor of the basement bathroom), several times; repeatedly picking it up and throwing it down again. She recalled, in particular, the glass from her phone screen shattering such that it was “all over the bottoms of [her] feet”, resulting in cuts to her feet, (which caused her to limp for a period of time thereafter), as well as cuts to her hand when she subsequently was forced to the bathroom basement floor by Mr B.’s further actions. In the result, the previously operational phone belonging to Ms F. was transformed into the broken, bent and inoperable object depicted in the exhibit photographs; photographs taken a few days after August 7, 2021, (when the parents of Ms F. were attempting to have the phone repaired), depicting an object and various components almost no longer recognizable as a cellular phone. In the result, the phone could not be repaired, (at a hoped-for cost of $500.00 to $700.00), and instead had to be replaced by another “iPhone-11”, at a cost of approximately $1,500.00 to $2,000.00.

6. During the course of Mr B. damaging and destroying her phone, Ms F. was pleading with him to stop, asking why he was doing what he was doing, emphasizing that he did not understand what he was talking about and that “no one had ever cheated on anybody”, and generally just trying to “ground” him and calm him down. However, none of her efforts in that regard appeared to have any effect.

7. It was at that point, Ms F. testified, that Mr B. then struck her for the first time, using his open hand to hit her hard on the cheek, with force sufficient to knock her down to the floor of that basement bathroom. In that regard:

a. In her testimony, Ms F. described the location of that blow with great precision; e.g., using words and gestures, (including use of her fingertip to visually trace an outline of where the blow was struck), to indicate that the area of the strike extended from her top right cheekbone just below her eye to the top of her right ear.

b. Ms F. also described how that blow resulted in bruising and swelling of her right eye and cheek that appeared shortly after the incident, as well as sustained swelling in that area that lasted for several weeks; i.e., swelling confirmed by and depicted in photographs of her face that were identified and marked as exhibits at trial, which showed residual swelling and discolouration in the affected areas of her face, as well as some swelling and yellowing around her right eye.

c. Ms F. also described how that that initial blow Mr B. inflicted in the basement bathroom came as a complete shock or surprise, and it was at that moment that she realized she was in actual danger; i.e., because Mr B. was no longer directing violence towards her property, but directly towards her.

d. Ms F. recalled then also receiving one or more additional blows to her face, including blows to the other side of her face as well, (before her head was struck with the basement bathroom door in the manner described below), but her memories in that regard were less clear; i.e., insofar as she recalled being hit on both sides of her face, and assumed that was done by Mr B. using his hand or hands, but she was not then looking at what he was doing. Such additional striking of her face nevertheless resulted in additional swelling and discolouration to the left side of her face, the residual effects of which also were visible in the exhibit photographs presented at trial.

e. Ms F. testified that, while she was being assaulted by Mr B. in the basement bathroom, she also sustained cuts to her hands and feet via the broken glass from her phone that remained on the basement bathroom floor. She knows that she also sustained a severe bruise to her upper left thigh on the day in question; i.e., a bruise she did not have before her interactions with the accused that day, and which also was depicted in exhibit photographs presented at trial. However, Ms F. candidly and proactively indicated she was not sure whether that bruise was sustained when Mr B. knocked her to the floor of the basement bathroom in the manner she described, or when Mr B. struck her and knocked her to the ground again thereafter when the two were outside the house on the street, as described in further detail below.

8. As she was then laying on the floor of the bathroom, Mr B. not only kept repeating similar words, accusing Ms F. of being a “cheating whore” and “dirty slut”, but also began using the door of the basement bathroom to strike her repeatedly on the back of her head; i.e., slamming the corner of that door into the back of her head “over and over again”, thereby causing her immediate pain and bleeding, (in addition to the headaches that she experienced for two weeks thereafter, and a long-lasting scab at the top left of her head at the location of the repeated blows from the door, where her hair took a long time to grow back), while she kept asking him to stop, indicating that he was hurting her, and asking why he was doing what he was doing. The only answer she received in response was Mr B. repeating that she was a “lying cheating whore”. She recalled looking up at Mr B. while he was doing that, and thinking that she had never before seen such rage in a person’s face. From that point forward, such observations, together with her previous knowledge of Mr B.’s mental state, led Ms F. to think he was going to kill her and himself.

9. Ms F. described how Mr B. then grabbed and dragged her by the hair, (resulting in her “whole head being pulled back” and her losing a “chunk” of her hair), to force her relocation to the doorway of his basement bedroom, so that Ms F. initially had her back to that doorway facing outwards; i.e., such that she was facing in the direction of the other basement bedroom, used by the accused’s brother J. and Ms P..

10. Ms F. had memories of seeing Ms P. and Mr L. at some point during the course of those events, and believed those sightings occurred after she had been assaulted in the basement bathroom and brought to the doorway to the accused’s basement bedroom in the manner described above. In particular:

a. Ms F. had a memory of seeing Ms P. in the basement and saying something to her, the specifics of which Ms F. could not recall, but which she believed to be in the nature of “He thinks I cheated” and/or “Tell him to stop”.

b. Ms F. also had a memory of looking to the staircase leading down to the basement and seeing K., (i.e., Mr L.), in the middle of that stairwell and descending, but without saying anything at that point that Ms F. could recall.

11. The testimony of Ms F. did not otherwise include specific details of what happened immediately after she was being dragged by her hair back to the doorway of the accused’s basement bedroom. However, implicit in her further testimony was an indication that the initial physical altercation she described was followed by some form of return to the accused’s basement bedroom where the personal belongings of Ms F. had been located; i.e., as the next memory Ms F. described was that of Mr B. starting to gather her belongings, taking them outside and throwing them in to the street as Ms F. chased after him, trying to prevent that from happening. In that regard:

a. Ms F. recalled seeing Ms P. leaving and being driven away from the property by someone else as the accused and Ms F. made their way outside; i.e., suggesting that the further events Ms F. was describing in that regard took place shortly after Ms P. had exited the home. Ms F. could not remember anyone else being in the area and outside at the time, although she recalled that she and Mr B. were yelling loudly at each other, and her being surprised that no one else from the neighbourhood had come outside to see what was happening.

b. Ms F. described how she had followed Mr B. outside, where he had thrown all of her personal belongings, (including whatever clothing and shoes she had at the house, a $2000.00 Yves Saint Laurent designer purse she had purchased for herself, and her leather wallet), into puddles on the street, while repeatedly telling Ms F. to “get out” and “leave”. In the result, her designer purse, (usually kept by Ms F. in its original “dust bag” when not being used, and undamaged in any way before August 7, 2021), was significantly damaged; i.e., by its straps becoming detached in a manner preventing their proper reattachment, and its surface becoming “scratched up” from hitting the street pavement. Her leather wallet also was damaged by the puddle water into which it had been thrown. As for her other personal belongings that were thrown into the street and its puddles, Ms F. candidly acknowledged that she could no longer recall the extent to which they also may have been damaged or destroyed, as she threw all of those items out when she eventually got home to her parents’ residence in Vaughan.

c. She nevertheless did recall trying to pick her belongings up from the street, before they were run over by cars or otherwise damaged, when she was struck again by Mr B. In the initial stages of her testimony of chief, Ms F. candidly acknowledged that she had difficulty recalling precisely how she had been struck again by Mr B. at that point; i.e., remembering only that she was once again on the ground, without being able to recall what part of her body had been hit. She explained her lack of memory in that regard by emphasizing that what happened in front of the accused’s home that day was never as important to her as the other events of that day that took place inside the house; events which she had replayed in her mind “over and over again”. However, after dwelling further on that particular aspect of the day’s events, and revisited references in the preserved text messages exchanged with Mr B. to her having been kicked, she recalled feeling the pavement on her arms, while looking up at Mr B., (while still being unable to recall how she got into that position), and that Mr B. was kicking her. She could not remember the number of times he had done so, and was reluctant to provide an estimate in that regard. However, she did recall that the kicks were to her legs and abdomen, and felt comfortable indicating that the number of kicks was at least four and no more than 10.

v. Ms F. described how those dynamic and traumatic events then were followed by a comparative lull, during which she made active efforts to calm Mr B. down and find a way out of the situation she was in. In that regard:

1. She described how, by way of initial reaction to Mr B.’s actions and his repeatedly telling her to “get out” and “leave”, she kept asking Mr B. for use of a phone to call her father; i.e., so that she would have an assured and safe way of leaving. In that regard, Ms F. emphasized that Mr B.’s actions had left her in what she perceived to be an extremely vulnerable situation. In particular, in the wake of Mr B.’s violence, he had no working phone, no money, no familiarity with London or anyone else in London, and uncertainty as to whether it would be safe to approach one of Mr B.’s neighbours; e.g., out of fear that any neighbour might be supportive of Mr B. as one of his friends, and/or that Mr B. might engage in further violence and retaliation if he saw Ms F. speaking with any of his neighbours.

2. Faced with such circumstances, and focused on what she described as “leaving and surviving”, Ms F. says she decided to change her approach; e.g., looking at Mr B. “with as much love as [she] possibly could”, and trying to “calm him down” while continuing to ask for use of a phone.

3. Ms F. says that Mr B. initially responded with continued refusal to provide her with access to a working phone, and continued insistence that she simply leave; something Ms F. did not view as a realistic option or any “real choice”, owing to the considerations outlined above. However, Mr B. eventually seemed to calm down and listen; e.g., stopping his immediate refusals to provide her with a phone, allowing her to move her belongings from the street to a pile on the home’s front porch, and permitting their interaction to move back inside the [specified] home. She also recalled giving Mr B. what she described as a “big hug” at the time; a hug not given to “make things right”, or assure Mr B. that she would “not break his trust again”, (as suggested by defence counsel in cross-examination), but to calm Mr B. down so that she would be permitted to call her father and get to a place of safety. Ms F. nevertheless could not recall with certainty whether that hug happened while she and Mr B. were together on the front porch of the home, or after they had returned inside. In any event, Ms F. was sure that their conversation inside initially continued in the home’s kitchen, as Mr B. remained standing by the door to the basement, beside the kitchen table. She recalled Mr B. still being mad, (although she was unsure whether that was because she had listened to his voicemails or because he thought she had been cheating), and Mr B. then expressly accusing her of cheating. She could not remember whether Mr B. had expressly said in anger that her listening to the emails and alleged “cheating” had both broken his trust, but she thought that probably had happened. She nevertheless did recall responding with an indication that she had never done anything to deserve being beaten. At that point, no one else was in the home.

vi. Ms F. described how matters then took a more sinister turn; i.e., with Mr B. eventually indicating that he would allow Ms F. to borrow his phone to call her father if she agreed to have sex with Mr B. “one more time”. As for the further events that were said to have happened thereafter:

1. Ms F. testified that her initial reaction to Mr B.’s indication in that regard was one of disgust and refusal in the circumstances; i.e., with her saying “Ew, what the fuck”, and expressly indicating that she did not want to have sex with Mr B., and simply wanted to use his phone so that she could leave as he was telling her to do.

2. However, when Mr B. then continued to deny her use of a phone unless she had sex with him, Ms F. eventually said she would do so. In her testimony, Ms F. emphasized that she actually did not want to have sex with Mr B., did not want him to touch her in a sexual fashion at all that day, and was not genuinely consenting to have sex with him, but felt at the time that she was obliged to do so in order to call her father and safely leave the situation in which she found herself.

3. Ms F. described how she then followed Mr B. downstairs to his basement bedroom, where she initially just sat down before Mr B. told her to take off her clothes. As she then complied with that direction, she nevertheless was asking Mr B. why he was doing what he was doing, and why he wanted to do it, while asking him to stop.

4. However, Mr B. did not stop. To the contrary, Ms F. tearfully described how Mr B. then proceeded to have vaginal intercourse with Ms F. for “a few minutes”, without use of a condom, and while she was on her back while he was on top of her, until he ejaculated. While that was happening, Ms F. was scared and crying, repeatedly saying “Stop” several times, and asking Mr B. questions such as “Why are you doing this?”, and how he could possibly want the last time he had sex with her to be like that. For his part, however, Mr B., during the sexual intercourse, was calling Ms F. a “dirty cheating whore”, a “filthy slut” and a “liar”, and telling her to “just shut up”. Although she found the entire episode profoundly traumatic, from an emotional and psychological perspective, she expressly disclaimed having suffered any physical injuries as a result of that sexual activity.

5. After Mr B. ejaculated and withdrew, he continued to say hateful things to Ms F.; e.g., indicating that he was going to the bathroom because he “needed to wash off his dick because he didn’t know what diseases [Ms F.] had given to him”.

6. As F. had stopped crying once Mr B. ejaculated and withdrew, (which she attributed to her being in shock over what had just happened), Mr B. also said: “See, it wasn’t that bad”, and “You didn’t cry the whole time”. (In cross-examination, defence counsel sought further confirmation and agreement that Mr B. had said “It wasn’t too bad, you didn’t cry the whole time”, and Ms F. agreed that Mr B. definitely had said that.)

7. Ms F. testified that she then asked Mr B. again if she could please use his phone. Despite his earlier assurances that he would provide Ms F. with use of a phone if she had sex with him again, Mr B. then refused to do so, saying that Ms F. was “not touching shit in this house”, before throwing some change at her, while they were still in his bedroom, and telling her to “find a pay phone”. Ms F. reminded him that she only had sex with him because of his promise that she would be given access to a phone, (i.e., to call her father after the sex was over), but to no avail.

vii. Ms F. testified that, during all of the above events that were said to have taken place on August 7, 2021, the accused’s mother, J.B., was not at home. Ms F. also acknowledged having no clear memory of what took place between the time of the sexual activity described above and J.B. returning to the house; something she attributed to nothing of importance happening during that time, compared to the traumatic events she had just endured. However:

1. Ms F. did not think it was a very long time between the end of that sexual activity and J.B.’s return to the home.

2. Ms F. recalled that she spoke with J.B. as soon as she returned to the [specified] home later that day, informing J.B. that the accused had been hitting her and had “beat her up”, and asking to use J.B.’s phone to call her father.

3. Ms F. then called her father in Vaughan to request a ride home. After her memory was refreshed by reference to her police statement, she remembered that call happening while she and J.B. were outside on the front porch of the home. In that regard, Ms F. testified that she nevertheless felt unable to speak part way through that call, (i.e., because she could not explain to her father what she had gone through), such that J.B. was required to “take over”; e.g., with J.B. then indicating to Mr F. that she would keep Ms F. safe from Mr B. until her father got there. In that regard, Ms F. recalled J.B. then staying with her, and generally being very kind, until her father arrived from Vaughan.

4. Ms F. also recalled J.B. “kicking [Mr B.] out of the house”. In that regard, Ms F. initially indicated that Mr B., by way of response, had gone directly outside. However, after her memory was refreshed by further reference to her police statement, Ms F. recalled that Mr B. initially was sent downstairs by his mother to retrieve some items before he left. When he came back upstairs approximately 15 minutes later, he “tried to start apologizing” before his mother intervened again telling him to leave, at which point he finally went outside.

5. Ms F. recalled that, while waiting for her father to arrive, Mr B. had tried to re-enter the home, but his mother told him to stay outside and he did. Ms F. also remembered engaging in further specific conversation with J.B., but in my view her evidence in that regard is inadmissible; e.g., insofar as it includes not only hearsay, but assertions of other alleged past discreditable conduct on the part of the accused.

viii. Ms F. also remembered the police arriving at the [specified] residence, around sunset, while she was still waiting for her father to arrive. In that regard:

1. Ms F. indicated that she had not called the police. It was her understanding, based on information provided to her by Mr L., that R. had done so.

2. Ms F. indicated that R. nevertheless was not at the home when the police arrived. She recalled J.B. still being there at the time, (e.g., having taken her back inside the home and provided her with something to eat and drink), and initially indicated that she thought Mr B. also was still there as well albeit outside; i.e., as she thought she remembered seeing the police speaking to Mr B. outside. However, in her later testimony, Ms F. recalled Mr B. having indicated in subsequently exchanged audio conversations that he had spoken to the police, which may have been the source of her belief and indication that she had seen him doing so.

3. In any event, Ms F. had a definite recollection of speaking with the police herself, in the front yard of the [specified] property. In that regard:

a. Ms F. recalled there being two officers on scene.

b. Ms F. could not recall the specifics of what she said to the police at the time, although she believed she provided a description of all that had happened, and disagreed with suggestions by defence counsel that she had only mentioned having an argument with Mr B. about texting with her former boyfriend.

c. However, Ms F. also remembered feeling that, at the time, she was not yet ready to acknowledge all that had happened even to herself, or to make a formal report to the police about what Mr B. had done to her. She also recalled thinking about Mr B.’s three daughters, which was another reason that made her hesitant to report his misconduct at the time.

d. Uncertain at the time as to what she should do, Ms F. recalled clarifying with the police whether or not she would be able to provide a formal statement to the police at a later date, when she felt ready to do so, and the police confirming several times that she could return and provide such a statement whenever she felt ready to do that.

e. In the result, Ms F. therefore repeatedly declined, at the time, to provide a formal statement to the police about what had happened.

ix. When her father eventually arrived at the [specified] residence to pick her up later that evening, and drive her back to the family’s home in Vaughan, Ms F. says the trip home was made mostly in silence; i.e., as she felt her father would be heartbroken if she told him what had happened.

x. After her memory was refreshed by reference to her police statement, Ms F. confirmed that, even during later discussion with her parents what had happened, she refrained from telling them about the sexual assault before formally reporting Ms B.’s alleged misconduct to the police. She was not sure, but thought she adopted a similar approach when disclosing the incident to her former boyfriend.

xi. In cross-examination, Ms F. confirmed that she never attended hospital to seek treatment for any of the injuries that were said to have been inflicted upon her by Mr B.

j. As Ms F. indicated and confirmed in great detail, her interactions with Mr B. nevertheless did not end with the events of August 7, 2021. To the contrary, over the course of more than a further day of testimony-in-chief, she recounted and described a myriad of further electronic communications between herself and Mr B., (i.e., by messaging, audio calls and “video chats”), and at least one brief and final “in person” interaction between her and Mr B.. In that regard:

i. Ms F. testified that most of those further communications took place via Facebook messenger, although some also occurred via Snapchat, Telegram and Instagram, (all via her computer and/or the replacement phone purchased for her by her parents), and I was presented with extended evidence in that regard; e.g., via video or “screen” recordings of Ms F. scrolling through preserved messages, and preserved “screen captures” of such messages, supplemented by explanatory and/or descriptive testimony by Ms F. providing context for those messages. The sheer volume of such messages prevents any complete or fulsome detailed recitation of those many messages here. I instead note and emphasize the following aspects of the messages exchanged in that regard:

1. That evidence included messages and notations of audio calls and video chats that occurred or were attempted on various dates during the period between August 7, 2021, and September 30, 2021, (communications clearly and expressly exchanged or attempted between Ms F. and Mr B.), and further messages exchanged between Ms F. and someone identified as “J.F.”, in October of 2021. By way of further overview comments in that regard:

a. I repeat my mindfulness that, as confirmed by the Crown, only the communications noted during that first period, (i.e., between August 7, 2021, and September 30, 2021), as referenced in Count 1 of the indictment, are the communications directly relied upon by the Crown in support of that count of the indictment. The communications exchanged between Ms F. and the operator of the “J.F.” account, which took place thereafter, were offered only to provide further narrative and context surrounding suggested admissions against interest by Mr B.

b. In my view, an overall consideration of the evidence warrants a finding that the messages exchanged between Ms F. and “J.F.” were in fact further messages exchanged Ms F. and Mr B.; i.e., that “J.F.” and Mr B. were in fact one and the same person, with Mr B. using the name “J.F.” as an alias. My reasons for that finding include the following:

i. For reasons outlined in more detail, I generally found Ms F. to be a credible and reliable witness, and I believe and accept her testimony that she knew at the time that “J.F.” was an alias used by the accused; i.e., because Mr B. had told her during the course of their relationship that he sometimes used “J.F.” as an alias, without specifically mentioning that he had a Facebook account in that name.

ii. On its face, the relevant Facebook account of “J.F.”, being used to communicate with Ms F. while she continued living in Vaughan, was from a user living in London, Ontario; i.e., the city in which Mr B. was still living, and where Ms F. knew no one apart from Mr B. and those who lived with him at the [specified] residence.

iii. The user of the “J.F.” Facebook account adopted the same unusual practice of quickly “unsending” and therefore deleting messages the user had sent to Ms F., after she had read them – but not before she took several “screen capture” shots of the messages before they disappeared.

iv. In my view, messages sent by the use of the “J.F.” Facebook account are written in the same general style as those sent by Mr B. via the Facebook account bearing his name, and echo subjects and content addressed in earlier messages sent via his named Facebook account; e.g., referring to a past intimate partner relationship with Ms F. that had ended, and expressing regrets about the ending of that relationship and things that had happened during that relationship. The screen-captured and preserved responding messages sent to “J.F.” by Ms F. also echo the accusations of misconduct she levelled against Mr B. in the messages previously sent to the Facebook account in his name, clearly indicating that Ms F. believed she was communicating with the accused when sending messages to the “J.F.” Facebook account, and with the user of that account expressly no apparent surprise at the allegations of such misconduct being made by Ms F.

v. The messages sent from the “J.F.” account to Ms F. also include the sending of a photograph of Mr B. together with Ms F.; a photograph most likely to be retained and possessed by Mr B. rather than anyone other than Ms F.

2. Again, practical constraints militate against a detailed recitation of all the comments exchanged between Mr B. and Ms F. in the preserved messages, which were punctuated by attempted or connected audio calls and video chats. However, I note that certain matters were the subject of repeated discussion, and/or seem particularly noteworthy for other reasons, and the timing of certain messages also has relevance. For present purposes, I note in particular the following:

a. Many of the preserved messages sent by Ms F. essentially are prior consistent statements of the allegations of misconduct by Mr B. described in the trial testimony of Ms F.; e.g., repeated references to her not having a phone because of Mr B., and to Mr B. having hit/beaten her and smacked her in the face, having thrown her to the ground, having opened and closed the bathroom door on her head, having pulled her across a room by her hair, having ruined her belongings and “broken” her “things”, (such that he owed her thousands of dollars, in respect of which she was requesting reimbursement), having kicked her, having refused to let her call her father unless she had sex with Mr B., having sex with Ms F. while she “bawled” and was crying, having thereafter not been allowed by Mr B. to call her father despite Mr B.’s promise to do so, (with that apparently having been Mr B.’s “plan” the “whole time”), having thereafter shown her further disrespect by throwing change at her and treating her ”like a hooker”, having said after the sexual activity that it “wasn’t too bad” and “you didn’t cry the whole time”, and having generally subjected her to violence and broken her trust in a manner that left her in pain, “concussed”, “traumatized” and “terrified”. Ms F. also sent Mr B. photographs of the damage sustained to her phone, (damage which she attributed to Mr B.), and referred to her having been left with bloody cuts and bruises as a result of what had happened. As noted and emphasized earlier, such evidence is inadmissible for the purpose of demonstrating suggested consistency between such prior statement and the testimony of Ms F. at trial; i.e., as a means of attempting to bolster the credibility of Ms F. in a self-serving fashion. However, it does provide admissible evidence for purposes of narrative and context framing the messages sent in response by Mr B.; e.g., insofar as preserved messages sent by Mr B. notably do not include express denials of misconduct in response to such allegations being made by Ms F. In that regard:

i. The testimony provided by Ms F., providing supplemental information about her communications with Mr B. after the events said to have taken place in London on August 7, 2021, indicated that Mr B. would sometimes be apologetic, and acknowledge and admit his misconduct, (e.g., breaking her phone, “smacking” her in the face, hitting her in the head with bathroom door, sexually assaulting her, and causing her physical injuries), but his doing so would “depend on his mood”; e.g., with his being more willing to do so when he was trying to reconcile and renew their relationship, and less willing to do so when she did not reciprocate.

ii. When asked for clarification, Ms F. indicated that, at various times during their audio communications in particular, after the events of August 7, 2021, Mr B. repeatedly had acknowledged all of the alleged misconduct she was describing at various points, and the fact that he was “in a blind rage” at the time, although such indications sometimes were reflected only indirectly in the preserved messages; e.g., messages from Ms F. responding to an apparent ultimatum from Mr B. that she needed to forgive him and “get over” what had happened within a specified time or he would sleep with another woman. In that regard, Ms F. testified that Mr B., in calls and messaging, also repeatedly would “downplay” his conduct, without ever denying that it had happened. For example:

1. Ms F. described a particular message sent to her by Mr B., (which was then “unsent” and deleted), indicating that he was willing to admit that he had hurt Ms F., while claiming it was not as bad as she was suggesting.

2. In another message sent to Ms F. by Mr B., on or about August 20, 2021, (which Ms F. managed to preserve), Mr B. said: “My actions were inexcusable, but so were yours”.

3. The messages sent to Ms F. via the “J.F.” Facebook account, in addition to indications by Mr B. that he had “messed up”, “made a huge mistake”, was “truly sorry”, knew “what [he] did was wrong”, and “never felt remorse like this”, also included the following messages:

a. “Today alone I did way, way worse than what I did to you, and I don’t even consider that beating them up”;

b. “I’m not saying I didn’t hurt you, but stop saying I beat you up”; and

c. “I’ve had a life of violence and … in my books that’s not even close to beating someone up”.

iii. Ms F. described how, starting on or about August 9, 2021, Mr B. also began “unsending”, (and thereby effectively deleting), messages he was sending to Ms F. after they had been read; i.e., a form of after the fact conduct suggesting that Mr B. may have wanted to eliminate evidence of things he had communicated electronically.

iv. I nevertheless also am mindful that the preserved messages sent by Mr B. occasionally do deny certain alleged misconduct on his part, (e.g., by way of a message saying “I didn’t beat you up”), and Ms F. acknowledged that Mr B. sometimes engaged in other denials as well, despite his admissions provided at other times.

b. There are numerous messages from Ms F. indicating that she was responding to repeated accusations by Mr B. that she had lied and “cheated” on him; e.g., by communicating with her former boyfriend “J.”, which Mr B. claimed was an indication that Ms F. was still in love with her former boyfriend, (whom Mr B. believed to be a “rapist”), and that Ms F. actually had never loved Mr B. Similarly, the messages contain further indications of Mr B.’s ongoing jealousy in that regard; e.g., with Ms F. feeling called upon to send Mr B. proof of other communications confirming that Mr B.’s accusations of her being with her former boyfriend at particular times were unfounded.

c. Included in the messages sent by Mr B. to Ms F. also were a number of photographic images, including intimate images of Ms F., as well as what she remembered as an intimate video of her and Mr B. engaging in sexual activity. The sending of such images caused her to feel both concerned and threatened; i.e., with her responses indicating a belief that Mr B. previously had deleted such intimate images at her request, and expressing concern about their continued existence. In particular, Ms F. testified that she felt that Mr B.’s sending of such preserved intimate images was threatening as he had indicated to her several times in the past, throughout their relationship, that he would use such sexual images “against” her if she ever “cheated” on him, and Mr B. was now claiming that she had been unfaithful. She “absolutely” feared that he would share such intimate images with others; an action that would have stripped her of “the last tiny bit” of her dignity and self-respect; i.e., by not only depriving her of her sense of security and safety, (through his previous misconduct), but her right to privacy as well. Her fears in that regard were then compounded when Mr B. failed to provide her with a requested screenshot of his “recently deleted photo album”; i.e., in response to her preserved messages asking Mr B. to show her proof that the images had been deleted.

d. A number of the preserved messages refer to an incident wherein Mr B. was said to have called Ms F. in the presence of his friends, putting the call on “speaker phone” so that his friends could hear and laugh at the conversation, before proceeding to call Ms F. a “slut” and a “junkie” who “fell off the wagon”, who needed to “go back to rehab” because she had lapsed in her sobriety efforts by taking Ativan. Ms F. testified that she found that entire experience to be offensive, degrading and humiliating.

e. Other preserved messages refer to an incident when an alarm had gone off at the home of Ms F., and she was seeking urgent confirmation that Mr B. had not come to her home in Vaughan; i.e., because she was scared of him. In that regard, Ms F. testified that she was scared of any in-person “face to face” contact with Mr B. after August 7, 2021, and “especially” so in relation to any “unplanned” direct interactions in that regard. In that regard:

i. Her preserved messages sent to Mr B. include express indications to Mr B. of that fear; e.g., that she was “so scared to sleep” because she had “nightmares of [him] coming to [her] house and hurting [her]”, that she did not feel safe, that she felt traumatized by his conduct, that she worried about Mr B. killing her family, and that she wanted Mr B. to promise that he would not come to her house, or hurt her or her family.

ii. Ms F. indicated, at various points during the course of her testimony, that she also did not leave her parents’ home for days at a time during the period following August 7, 2021, as she felt “fragile” and afraid.

f. Ms F. testified that, notwithstanding such fears, Mr B. did personally attend at her parents’ home in Vaughn after August 7, 2021, and addressed preserved messages referring to that attendance. In particular:

i. She confirmed messages sent to Mr B. on August 12, 2021, indicating that she would appreciate his “bringing” any of her “leftover belongings” remaining at his house, although she was still “undecided on whether [they] should meet or not”.

ii. She also confirmed messages sent to Mr B. on August 14, 2021, thanking him for “dropping off” property, and indicating that she wished she had given her “a warning” in that regard, in part because she had not his “stuff” out. In that regard, Ms F. explained that Mr B. had driven to her parents’ home in Vaughan, without telling her and without giving her a “heads up”, although she then acknowledged that there were deleted messages on the morning in question which may have indicated that he was coming, or was there. In any event, Mr B. apparently had walked up to the door of the home and left a bag of her “stuff” outside for her, without knocking, (to her knowledge), and without any face-to-face communication. In the result, Ms F. testified, she initially did not know that Mr B. had been there at the time of his attendance, and was concerned that such an attendance had occurred without it being on her terms.

iii. Other preserved messages referred to a further attendance by Mr B. at the Vaughan home. In that regard:

1. Although messages about that attendance initially were exchanged on August 20, 2021, other messages indicated, (and Ms F. then confirmed in her testimony after expressing some initial uncertainty about the date), that the attendance did not occur until August 31, 2021, after an interruption in their Facebook messaging, during which they were communicating by telephone or via other applications.

2. Ms F. testified that she and Mr B. had discussed arrangements for that attendance via telephone, such that she was aware it would be taking place. In particular, the agreed purpose of the attendance was for Mr B. to drop off “whatever other stuff” he still had that belonged to Ms F., and so that the two of them could speak in person. In that regard, Ms F. confirmed in a text message that she felt it was “smart to see each other because of how traumatic the last time [they] saw each other was”. However, Mr B. also was expressly told not to “mistake this for hanging out”; i.e., because Ms F. did not want Mr B. to think the agreed meeting was an attempt to reconcile.

3. Ms F. nevertheless also expressly instructed Mr B. to come to her house after 8:00pm, indicating that she did not want her father and brothers to still be there when Mr B. arrived. In that regard, Ms F. testified that she didn’t want Mr B. “to come to [her] house thinking that [her] brothers and [her] dad were going to be ready to kill him”. She also sent Mr B. a list of the topics and questions she wanted to discuss with him.

4. In fact, however, Ms F. had informed her father and brothers of Mr B.’s visit on the day he was coming, and both of her brothers and her mother were at home when Mr B. arrived. In the result, although it was the first time Ms F. and Mr B. had seen each other face to face since August 7, 2021, their interaction was very brief; i.e., lasting approximately two minutes, on the front porch of the home, with a brief exchange of each other’s items followed by good-byes. In that regard, Ms F. testified there was no “actual conversation”, (i.e., discussing the contemplated topics or questions she had listed), as one of her brothers had opened the door of the home and remained present during the meeting, such that she and Mr B. “weren’t going to have a conversation about all the things [she] wanted to talk about”. She recalled that Mr B. also had brought a female friend with him which made things uncomfortable for Ms F.; i.e., not because Ms F. felt any jealousy, but because she admittedly made an assumption or inference that the relevant female was the same female friend of Mr B. who, (according to things Mr B. previously had said to Ms F.), had threatened to harm Ms F..

5. During her examination-in-chief, Ms F. readily confirmed that she was agreeable to having Mr B. come to her porch to drop off her things on that occasion.

g. The preserved record of exchanged messages and calls confirms that Mr B. sometimes called Ms F. repeatedly, and in the middle of the night, much to her expressed annoyance. She also conveyed her increasing annoyance with Mr B.’s insistence on unsending and effectively deleting his messages, making it difficult for her to respond to all that he was communicating, and resulting in repeated “delete” notifications being sent to her phone that sometimes kept her awake at night. In a similar fashion, Mr B. had begun using the “vanish mode” setting on Instagram to ensure the deletion of communications he and Ms F. were exchanging via that method. (In cross-examination, Ms F. firmly denied that Mr B. ever indicated such efforts at deletion had anything to do with her supposedly sharing his communications with others.)

h. The presented evidence also indicated that Mr B. made a large number of calls to Ms F. that went unanswered, often within relatively short periods of time; i.e., with Mr B., during one such period, calling Ms F. no less than 54 times in a period of 37 minutes. Ms F. testified that such relentless efforts by Mr B. made her feel scared, as it seemed to her that he would “never stop until he gets what he wants”.

i. The presented evidence also indicated a number of apparently unanswered calls made to Ms F. with “no caller I.D.”, and Ms F. felt sure those too were from Mr B., as she had never received so many calls of that nature before the period between August 7, 2021, and September 30, 2021, or since. The “no caller I.D.” calls also were being made at the same time of day as Mr B. frequently would call her. However, it also was acknowledged that Ms F. necessarily was drawing inferences and making assumptions in concluding that the “no caller I.D.” calls were being made by Mr B..

j. At various times throughout the extended communications between Mr B. and Ms F., there were various comments made by Ms F. indicating that she did not want any further communications with him; e.g., messages such as “Never speak to me again”, “I likely will be filing a restraining order”, “I never want to see you again or hear from you”, “Stop”, “I’m not sending you anything”, “I’m not interested”, “Good riddance, it’s done”, “OMG, [i.e., Oh my God], leave me alone”, “Just leave me alone dude”, “Leave me alone, I am so sick of you”, “Please stop, it’s embarrassing, Leave me the fuck alone”, and “Stop messaging me – it’s sad”. Other preserved messages, supplemented by testimony from Ms F., indicate that, starting approximately one month after August 7, 2021, she also began taking intermittent steps to “block” receipt of further messages from Mr B., “on and off”, for certain periods of time. However, despite sending such messages and temporarily taking such steps, Ms F. thereafter admittedly continued to exchange extended communications with Mr B. about a variety of matters, in a variety of ways; i.e., “unblocking” his incoming messages, sending him responding messages, answering his audio calls and/or invitations to “video chat”, and sometimes initiating messages and audio calls to him. In that regard, Ms F. candidly acknowledged that, at such times, she was consenting to such ongoing communications with Mr B., and willingly engaging in ongoing back and forth conversation with him. In that regard, she expressly acknowledged in cross-examination that, although she did not call Mr B. as often as he was calling her, there were multiple occasions, after August 7, 2021, when she had been the one “reaching out” to Mr B. rather than the other way round.

k. In the course of her testimony supplementing the evidence of preserved messaging and audio/video calls, Ms F. provided a number of reasons why she had continued to engage in such extended communications with Mr B. after his alleged misconduct. For example:

i. She explained that she felt a need for confirmation that Mr B. truly realized and understood what he had done to her, and the harm it had caused. At the same time, she felt compelled to defend herself in relation to what she regarded as baseless accusations being levelled at her by Mr B.

ii. She noted a desire at times to have their relationship end “in a nicer manner” than it had, although such attempts inexorably seemed to end with Mr B. once again reverting to accusations that she had lied and cheated, and/or insulting her in various ways; e.g., by calling her a “slut”, “dirty whore”, “ditzy cunt”, “cheating junkie” and “cheating, lying drug addict”, as confirmed in preserved messages sent by Mr B. to Ms F.. At one point, Mr B. also sent a message indicating his hope that Ms F. would have “nothing but pain for what [she had] done to [him]”.

iii. Ms F. acknowledged that she occasionally would have what she characterized as “moments of weakness” during which she was “confused” about the feelings she still had for Mr B.; e.g., as a result of Mr B. saying “really nice things” to her or otherwise, which in turn would cause her to think only about the good relationship she had with Mr B. prior to the events of August 7, 2021. At such times, she admittedly sent messages to Mr B. indicating that she “loved him too”, and/or “emoji” icons indicating happiness or similar emotions. However, she testified that she then would always “pull [herself] out of it”; i.e., when she remembered what Mr B. had done to her, and what had happened to her as a result of those actions.

iv. Ms F. indicated that her continued communication with Mr B. also was motivated by fear. In particular, Ms F. testified that she thought it advisable to remain in communication with Mr B. because he otherwise would attempt other means of contacting her or, if denied any other means of communicating with her, eventually would just come to the house in Vaughan were he knew she still lived. As Ms F. put it, she “always wanted to know that he was not coming or that he was not upset that [she] wasn’t accessible or angry that he [couldn’t] reach [her]”. In particular:

1. Ms F. testified that, between the period of August 7, 2021, and September 30, 2021, she “never felt safe”, “didn’t go out very often”, “didn’t see friends”, “didn’t use social media very much”, and constantly feared that any car driving down her street or anyone at the door would be Mr B..

2. Ms F. also testified that all of that reflected a fear that Mr B. would hurt her or her family, or do something like burn down her house. In that regard, Ms F. acknowledged that such feelings were “anxious thoughts”, but they seemed very real to her at the time. In particular, although she could not remember Mr B. explicitly making any such threats, the previous acts of unexpected violence he had directed towards her inclined her to believe that he was capable of such things.

v. While acknowledging that she willingly continued to receive and respond to messages she knew to be from Mr B. after she had gone to the police on September 30, 2021, (i.e., instead of simply blocking or otherwise not responding to messages being sent to her via the “J.F.” Facebook account), Ms F. indicated that she had relocated her home and “already had the police on [her] side at that point”, (i.e., such that her fear of Mr B. had diminished), and was therefore more focused on Mr B. “admitting to things over Facebook Messenger” so that she could then “capture” that and “give it to the police”.

ii. The preserved communications between Ms F. and Mr B. include references to her damaged property; e.g., references to her purse, wallet and clothes, and the fact she needed a new phone and initially did not have money to pay for one, In that regard, Ms F. also testified that Mr B. had offered at times to “pay her back” for those damaged or destroyed items. However, Ms F. said that she had no knowledge or recollection of having ever received any such reimbursement or payment from Mr B. in that regard, and felt sure she would have remembered any. Nor were certain belongings left at the home of Mr B., (e.g., a pair of earrings also mentioned in the preserved messages), ever returned to her. After Ms F. had provided a formal report to the police on September 30, 2021, Mr B. did send a further message saying: “I’d like to start paying you back what I owe you. I’ll be in Toronto this weekend and could give you a few hundred. Let me know.” However, Ms F. then sent a responding message saying: “I will not be meeting up with you any time in the near or distant future. Do not contact me ever again.”

k. Ms F. did not dispute that she delayed making any formal report to the police of Mr B.’s alleged misconduct for approximately seven weeks; i.e., doing so on September 30, 2021. In that regard:

i. Ms F. indicated that, before making a formal complaint to the police, she had made some intervening informal disclosure of what had happened to members of her family, (although she deliberately refrained from recounting details of the described sexual assault to her parents), to her best friend, to her former boyfriend, and to certain other people whom Ms F. and Mr B. both had met during their time together at the Erin rehabilitation facility. She nevertheless candidly acknowledged difficulty recalling the specifics of those earlier disclosures, as she believes she was in a state of shock for a considerable period of time following the events of August 7, 2021.

ii. Ms F. explained that she delayed making any formal complaint to the police for a number of reasons. In particular:

1. As noted earlier, Ms F. initially was concerned that criminal charges against Mr B. would have a detrimental impact on his three young daughters. However, Ms F. says she later came to believe, on further reflection, that Mr B.’s daughters also should not “have to grow up with a father who beats and rapes women”.

2. Ms F. explained that, at the time of the described sexual assault and for an extended period thereafter, she was labouring under what she now realizes was an incorrect understanding of the law. In particular, she thought that her outward expression of consent to sexual activity with Mr B., (i.e., saying “yes” to sexual activity despite her not really wanting it to happen, in exchange for Mr B.’s promise to thereafter provide her with access to a working telephone, thereby facilitating her removal from a situation of perceived ongoing danger), was sufficient to constitute her giving legally valid consent to the sexual activity that happened thereafter, thereby absolving Mr B. from any possible finding of sexual assault. In particular, it was her understanding at the time that it “didn’t matter” if she subjectively “knew that [she] didn’t want to have sex with him”, or was thereafter insulted in a degrading way while that sex was happening, simply because she had said the word “yes” in response to Mr B.’s false promise that he would provide her with access to a phone if she had sex with him; i.e., that as long as she had said the word “yes”, that was “all that mattered”. It was that flawed understanding of the law, she said, that caused her to initially refrain from characterizing what had happened to her as “rape”, even while making her formal statement to the police on September 30, 2021. Indeed, she feared at the time that describing how she had said “yes” to sexual activity with Mr B. on August 7, 2021, albeit under duress, would “discredit” her in the eyes of the police, such that they would not believe all the other events she was describing.

3. Ms F. emphasized that she also genuinely feared the prospect of Mr B. engaging in some form of further violence and reprisals against her and/or members of her family, (e.g., having regard to earlier indications of his mental instability in the wake of their breakup and his violent conduct on August 7, 2021), if she reported his misconduct to the police before she and her family were able to safely relocate, (as per decisions made before August 7, 2021), from the Vaughan residence known to Mr B. to a new home, the specific location of which would be unknown to Mr B.. In that regard, Ms F. said she also had remained mindful of the indication, provided to her by the police in London, that she could provide such a report when she was ready to do so; something her father would remind her about as well.

iii. Ms F. recalled that she and her family moved homes on or about September 20, 2021. In any event, as of September 30, 2021, she and her family definitely had moved their home to a new location, unknown to Mr B. or his friends, and deliberately not shared or made available via social media, as she remained fearful of what would happen if Mr B. was able to find her. Again, Ms F. confirmed that the move had been contemplated before the events of August 7, 2021; i.e., that it was not prompted by those events. In those changed circumstances, however, she was no longer scared that Mr B. would exact retribution by coming to her home if she stopped communicating with him or went to the police. She therefore took steps to change her telephone number, (so that Mr B. hopefully would not be able to contact her anymore), and provided a report to the police. She testified that, sometime between September 20 and September 30, 2021, she also took steps to once again “block” Mr B. from sending her any further messages from his Facebook account.

iv. Apart from the exchange of messages between Ms F. and Mr B. via the “J.F.” Facebook messenger account described above, (which came to an end when Ms F. finally “blocked” her receipt of messages from that account as well on October 21, 2021), Ms F. thereafter had no further contact with Mr B. prior to the trial of this matter. She nevertheless testified that she remained fearful of him; e.g., because she knew he had the ability to send further communications to her by creating other social media accounts, (which caused her to delete her own Facebook and Instagram accounts for a time), and because she feared that Mr B. might somehow learn of her new home address through information provided in relation to his conditions of interim release. She also had a lingering fear that Mr B. would locate her by just “hanging around” the areas of Vaughan she was used to frequenting, and which he had learned about during the course of their relationship.

54I should add that, in cross-examination, Ms F. also firmly disagreed with numerous other suggestions put to her by defence counsel, including the following:

a. She denied suggestions that she had engaged in stealing of the non-prescribed narcotic to which she was addicted; i.e., by taking prescription medication that belonged to her mother. As noted above, Ms F. indicated that the narcotic to which she was addicted admittedly had not been prescribed by a doctor, but had been supplied to her by friends.

b. Ms F. proactively indicated during her examination-in-chief and confirmed in cross-examination that she had been prescribed medication to be used in case of extreme panic attacks, but denied in cross-examination that she had been prescribed medication because she generally struggled with “emotional regulation” in 2021. In that regard, she indicated and acknowledged in cross-examination that she does suffer from adult ADHD, (i.e., Attention-Deficit Hyperactivity Disorder), in respect of which difficulty with emotion regulation is one symptom of the disorder. However, she firmly denied that she had “anxious tendencies” following completion of her rehabilitation program in 2021 and prior to the events of August 7, 2021. In that regard, while she admittedly had experienced anxious thoughts during and after the described violent behaviour of Mr B. on August 7, 2021, she felt that was a natural “survival mode” reaction and traumatic response “provoked and triggered” by Mr B.’s completely unexpected and shocking conduct.

c. Ms F. acknowledged that she and Mr B. had a number of arguments prior to her ending of the relationship, but denied that they were about her sobriety, or that any such arguments were related to the reasons for their breakup. In that regard, she emphasized again that her decision to end the relationship on or about August 2, 2021, was for the other reasons outlined above. She specifically and firmly denied suggestions that she had lapsed and started using Benzodiazepines again prior to her acknowledged taking of a single Ativan tablet on the morning of August 7, 2021.

d. As noted above, Ms F. readily acknowledged that she was still under the influence of the Ativan taken on the evening of August 6, 2021, when Mr B. called and picked her up during the early morning hours of August 7, 2021; i.e., sometime after she woke to his calls at approximately 5:00am that morning. However, she took issue with suggestions that, at the time of their meeting, she was “very out of it” or “really out of it” to the point of “slurring” her words, “unsteady on her feet”, or in need of any help to get into Mr B.’s car; e.g., noting that she had made it all the way from her home to the main road of Vaughan on her own before Mr B. picked her up.

e. Ms F. resolutely continued to disagree with further suggestions that it was Mr B. who made the decision, prior to August 7, 2021, to end their relationship.

f. In the course of cross-examination, defence counsel suggested details of a varied or supplemental narrative to Ms F.; i.e., wherein it was suggested that events had unfolded in a slightly different manner prior to Mr B. taking her phone away while Ms F. was in the “cabana” or gazebo of the [specified] home. In that regard:

i. It was suggested that several hours went by between the time of Ms F. and Mr B. waking that day, and the time of Mr B.’s alleged violence. In particular, it was suggested that Mr B. had discovered Ms F. listening to the voicemail messages he had left for her early that morning, despite her having indicated that she would not do so; that he had been angered by that behaviour on the part of Ms F., such that he “kicked her out” of the [specified] residence; that she had then gone to the “cabana” or gazebo with her phone for an extended period, during which she was texting her former boyfriend and father to come and get her; that there had been intermittent further arguments between Ms F. and Mr B., as he spoke to Ms F. in the gazebo to find out why it was taking her so long to leave, while she was indicating in response that she was trying to arrange a ride; and that Mr B. then discovered that she had been texting her former boyfriend, which caused him to become angry and take her phone.

ii. Ms F. disagreed with many aspects of that supplemental narrative; e.g., repeating that she had no memory of how she had come to be in the gazebo or “cabana”, and did not believe Mr B. “kicked her out” of the residence before he had broken her phone and assaulted her. However, she did have a memory of Mr B. becoming more angry, and wanting to see her phone, once she told him that she had asked her former boyfriend to come and pick her up from the [specified] residence.

g. In relation to what happened involving the bathroom door on August 7, 2021, Ms F. successively rejected various aspects of an alternative narrative put to her by defence counsel in cross-examination; i.e., with defence counsel suggesting that Mr B. had only repeatedly opened and closed the basement bathroom door in an effort to close it while Ms F. insisted on standing in the doorway and blocking its closure, (despite Mr B. repeatedly yelling at her to “get out”), before Ms F. then similar insisted on blocking the doorway while Mr B. was trying to exit the bathroom and telling her “get out of the way”, as he wanted to leave. Ms F. remained adamant that Mr B. was repeatedly slamming the bathroom door against the back of her head, as she lay on the floor of the bathroom, where he had knocked her down after striking her in the face.

h. Ms F. also firmly rejected defence counsel suggestions that, instead of hugging Mr B. on the day in question to “calm him down”, as Ms F. had suggested, (i.e., following the initial incidents of violence she had described), she had done so because she “didn’t want to lose him”, was “desperate for him not to discard her”, and actually was “begging him not to throw [her] out” and let her stay. Ms F. emphasized that the only thing she was “begging” for at the time was for Mr B. to let her use his phone.

i. Ms F. also firmly disagreed with defence counsel suggestions that she and Mr B. engaged in consensual sexual activity on August 7, 2021, after he repeatedly had expressed ongoing displeasure with her continued presence at the [specified] property, and had expressly indicated, (while simultaneously expressing his contempt for her), and that he was “done with” her, and that the only thing he wanted to do with her if she continued to “stick around” at the property was to have sex with her one last time. In that regard, she acknowledged that Mr B. had said “Fuck you – Have sex with me one more time”; i.e., as part of the words being said back and forth between them before the sexual activity took place. However, she was adamant that, in response to her begging Mr B. for access to a phone, Mr B. had said that he would let her use his phone if she had sex with him one more time, and that was the only reason she engaged in sexual activity with him.

j. Ms F. acknowledged that, when referring to the described incident of sexual activity in her police statement, she had used the words “I consented” when describing the encounter. However, Ms F. firmly disagreed with suggestions that was any indication of genuine voluntary consent on her part, that she had voluntarily engaged in such sexual activity in an effort to “make things right” because she had been “dishonest” about listening to Mr B.’s voicemail messages or communicating with her former boyfriend, and/or that she was simply upset with the manner in which she and Mr B. then had sex; i.e., because she had felt used and not sufficiently valued at the time. In relation to all such suggestions, Ms F. emphasized again that she actually did not want to engage in any sexual activity with Mr B. on the day in question, and had only a limited understanding of what constituted legally valid consent at the time and later when she was speaking with the police; i.e., with the police independently then deciding to charge Mr B. with sexual assault once she described what had happened. In particular, Ms F. once again stressed that:

i. at the time she was fearful for her life, as she thought Mr B. was going to kill her;

ii. all she wanted to do at that point was to leave;

iii. when Mr B. offered to provide her with his phone if she had sex with him, so that she could call her father and safety, she felt she had no other options or choice at the time; and

iv. Mr B. knew that was the only reason she gave her expressed “consent” to have sex with him.

k. Ms F. also vehemently rejected suggestions put to her in cross-examination that she was not “forced” to have sex in the circumstances, and that she had “other options”; e.g., that she simply “could have left” in response to Mr B. telling her to leave. In that regard:

i. Ms F. emphasized that Mr B. knew she was in a “desperate position, that all she wanted to do was go home, and that she would “do anything to go home safely”.

ii. She also stressed her perception at the time that her realistic options at the time were limited to having sex with Mr B. despite not wanting to, so that she could use his phone and leave, or face the prospect of refusing to have sex with Mr B. and the possibility of him then killing her and himself, such that she would never escape and be able to tell anyone what had happened.

iii. Ms F. categorically denied defence counsel suggestions that simply leaving was a realistic option in the circumstances; i.e., that she was “free to leave at any time”, and “could’ve left before the sexual activity”, (especially after Mr B. had thrown all her belongings into the street), but “didn’t flee for help” and “didn’t go anywhere because [she] didn’t need to”. In that regard, Ms F. emphasized again that, at the time she was faced with Mr B. saying he would let her use his phone only if she had sex with him again, her feet were bloody, she was bruised, and she had been hit repeatedly in the back of her head with a door. She had no phone. Despite having her wallet, she also had no money on her debit card. She knew no one in London, or how close the neighbours were to Mr B., and had just experienced a betrayal of her trust by a man she loved, making her disinclined to place trust in complete strangers at that point. She also did not know if Mr B. would retaliate with further violence if he saw her seeking help. Moreover, by the time Mr B. first indicated that he would provide Ms F. with a phone if she had sex with him, the two were no longer outside in the street, but back within the house and alone. In the circumstances, Ms F. felt that she realistically had no safe means of leaving and removing herself from the situation unless it was via a phone call to her father.

l. Ms F. also firmly disagreed with defence counsel suggestions that Mr B. had stopped having sex with her once she started crying; that he told her that she was not going to have sex with her when she was crying; that he thereafter continued having sex with her only after she said she was “fine” and “good to continue”; and that she thereafter proceeded with continued vaginal intercourse by actively changing positions, sitting on top of Mr B., and “riding” him until he ejaculated.

55With all of the trial evidence in mind, I turn next to comments about witness credibility and reliability.

ASSESSMENT OF WITNESS CREDIBILITY AND RELIABILITY

56As far as R.P. is concerned, I generally found her to be a credible, reliable and believable witness, insofar as she was able to offer evidence relevant to at least some of the charged offences. My reasons and caveats in that regard include the following:

a. By the time of trial, Ms P. had no discernible ongoing connection with the accused or any member of his family, or with the complainant. Nor was there any indication whatsoever of any animosity or conflict between her and anyone involved in this case, either before or after the events Ms P. was said to have observed and/or experienced on August 7, 2021, which apparently was the last time she and Ms F. saw each other. In short, there appeared to be no reason whatsoever for her to favour the Crown or defence in the proceeding.

b. As for the ability of Ms P. to make and remember accurate observations of what she may have witnessed at the [specified] property on August 7, 2021:

i. At the time of the events in question, Ms P. was well-rested, was returning to the property in the afternoon, and had not consumed any intoxicants at that point, regardless of the plans she and her friends had made in that regard for the evening.

ii. Although Ms P. was to some extent “multi-tasking” during the events she described, (e.g., insofar as she was focused in part on preparing her overnight bag and returning to her friends who were waiting outside), and she acknowledged feeling “very distraught” and “quite stressed” because of the sounds she was hearing, my overall impression was that the unique and troubling nature of what Ms P. experienced had the effect of making the details of that experience stand out with clarity in her mind; i.e., effectively making her testimony about such matters more reliable rather than less reliable.

iii. Having said that, I am also mindful of the fact that Ms P. was in many ways only an auditory witness to some of the more significant things she was able to describe; i.e., in the sense that, while she was in her own basement bedroom packing, or walking past the closed door of the other basement bedroom occupied by Mr B. and Ms F., she could hear voices and other noises arising from the interactions between the accused and complainant without being able to see precisely what was causing those sounds. She necessarily was also hearing a number of those sounds coming to her through a series of intervening walls, around various turns and/or through closable doorways that may or may not have been open at relevant points in time. (Ms P. believed that her basement bedroom door and the French doors between the basement living room area were open at all relevant times that afternoon, but she inherently could not have known with certainty whether doorways to the basement bathroom and the basement bedroom occupied by Mr B. were open at times when she could not see those doors.) Such realities effectively obliged Ms P. to draw inferences, which may or may not have been accurate, as to the precise originating locations or causes of the noises she was hearing, when not accompanied by a direct opportunity to see what was actually happening in that regard.

c. Ms P.’s memory was not perfect. For example:

i. Given the formal admission or agreement of the parties that the relevant 9-1-1 call to the police was made at 6:16pm on August 7, 2021, Ms P.’s memory that she and her friends arrived at the [specified] residence at approximately 4:00pm, and placed the 9-1-1 call when Ms P. was leaving the house approximately 15 minutes later, simply cannot be accurate. In my view, however, Ms P.’s inability to recall the exact time of her return to the house on the day in question, several years after the fact, related to an incidental detail that had little bearing on her general credibility or reliability when it came to her testimony regarding the more memorable and traumatic events she was said to have witnessed during her return to the home that day.

ii. There were other details that Ms P. admittedly could not recall, and she sought permission a number of times to refresh her memory through use of a transcript of that “9-1-1” call made on the day in question, in which she had participated. However, such things actually reinforced my impression that Ms P. was taking considerable care to be as accurate as possible in her testimony. Moreover, her candid indications of various details she could no longer remember, (including the date on which Mr B. moved into the [specified] residence in 2021, the complainant’s surname, the precise work schedules of others at the time, or precisely what information she may have included in the text sent to her friend E. asking E. to call 9-1-1), instilled confidence that Ms P. did have a clear and firm memory, (albeit sometimes refreshed), of the more relevant and inherently more unusual and noteworthy events she was able to recall and describe in her testimony.

d. It was highlighted in cross-examination that certain details included in Ms P.’s testimony at trial, (e.g., regarding her interactions with Mr L., Mr L. attempting to speak with Mr B. about what was happening, and her observing broken glass and other pieces of something on the floor of the basement bathroom), were not mentioned by Ms P. during her initial provision of information to the 9-1-1 dispatcher. In my view, however, little turns on such arguable inconsistencies by way of omission in that regard. At the time of the 9-1-1 call, Ms P.’s primary concern was to summon police assistance in relation to what she believed to be a life-threatening assault in progress, and it would be unreasonable to expect a full recitation of all peripheral details relating to everything she may have done or observed while in the home that afternoon.

e. Although Ms P. occasionally seemed somewhat nervous or anxious about the experience of having to testify in court, I never sensed that she was doing anything other than her best to provide accurate and fair testimony. Without limiting the generality of the foregoing, Ms P. fairly and readily conceded numerous points put to her in cross-examination; e.g., confirming the admitted limits of her awareness concerning precise details of visits made by Ms F. to the [specified] residence, the possibility that the basement bathroom light had been off when she initially passed it that afternoon before later finding the bathroom door open and its light on, and the fact she actually had not seen any particular basement door opening or closing or any physical assault, and was instead drawing inferences based on what she was hearing.

f. On the whole, I therefore found Ms P.’s testimony to be credible and reliable, except to the extent that some of the inferences she necessarily was drawing as to the source of sounds heard indirectly, through walls and openings and around numerous corners, may not have been accurate.

57The Crown’s case nevertheless obviously depended in very large measure on the testimony of the complainant, Ms F., (as she was the only person immediately present with and/or communicating with the accused when many of the alleged events underlying the charged offences are said to have occurred), and I accordingly have spent considerable time carefully reviewing and considering, in detail, possible concerns relating to her credibility and reliability.

58Having done so, I nevertheless am strongly of the view that Ms F. generally was a credible, reliable, compelling and believable witness, as far as the particular events underlying the charged offences are concerned. My reasons in that regard include the following:

a. I draw no adverse inference whatsoever from the fact that Ms F. delayed a formal report to the police of Mr B.’s alleged misconduct until September 30, 2021. As emphasized by appellate authority, and as experience of this court repeatedly confirms, victims of traumatic abuse such as that described by Ms F. repeatedly delay such reporting for a variety of understandable reasons, including but not limited to lack of understanding and fear. In this case, Ms F. provided testimony, as noted above, reinforcing such concerns about her particular lack of understanding and fear as reasons for such delayed reporting.

b. In my view, there also was no evidence before me to support any suggestion, let alone any finding, that Ms F. had any motive to fabricate allegations of misconduct on the part of Mr B.. In that regard:

i. As noted above, I am mindful that Mr B. had no obligation whatsoever to prove the existence of any such motive, and that absence of evidence to support the existence of any such motive is not necessarily the same thing as an absence of motive to fabricate.

ii. In this particular case, however, there was no such evidence and I do not believe that Ms F. had any such motive. Without limiting the generality of the foregoing:

1. The relationship between Ms F. and Mr B. was not casual, but it also was relatively short-lived; lasting approximately five months at most.

2. I believe and accept the sensible reasons outlined by Ms F., in the course of her testimony, why she made a decision to terminate the relationship on an amicable basis, at a time when she had nothing but a positive view of the relationship and Mr B. In my view, there was nothing to suggest that it was Mr B. who chose to end the relationship to the disappointment and chagrin of Ms F., (especially having regard to text communications by Mr B. expressing a longing for the relationship to continue), or that Ms F. harboured any bitterness or resentment towards Mr B. prior to his conduct on August 7, 2021.

3. When Ms F. decided to report Mr B.’s alleged misconduct to the police on September 30, 2021, she and Mr B. were still living in two geographically distant communities, and he was unemployed and living in his mother’s basement, with three dependent children. I find it impossible to think that Ms F. felt she had anything to gain personally or financially from fabricating allegations of misconduct on his part; allegations that would require her to come to court and testify about intensely personal and private matters in a public forum, and effectively require her to continue a form of involvement vis-à-vis Mr B. when she wanted that to end.

iii. By way of completeness, (and although the point was not raised or argued by counsel), I will also note my view that the prior consistent statements of Ms F., made in messages exchanged with Mr B. from as early as the late evening hours of August 7, 2021, while generally not admissible to support the credibility of Ms F., nevertheless would be evidence effectively rebutting any suggestion of recent fabrication on the part of Ms F.; i.e., as far as her allegations of specified misconduct on the part of Mr B. are concerned.

c. In my view, it also would be improper and unjustified to draw adverse inferences, in terms of the credibility of Ms F., from her stated decision to capitulate to Mr B.’s indication that he would provide her with access to a working phone only if she had sex with him again, (i.e., instead of deciding to leave the [specified] residence to seek help from others in the neighbourhood or a mall within walking distance of the home), and/or her decision to maintain contact with Mr B. after the various forms of misconduct that were said to have taken place on August 7, 2021. Without limiting the generality of the foregoing:

i. In my view, drawing such adverse inferences effectively would measure the reasonableness of the described reactions of Ms F. to the trauma she says she had endured and/or was facing against a notional standard of the reactions some hypothetical “typical” victim would display in such circumstances. As our appellate courts repeatedly have emphasized, there simply is no such standard in law. The reality is that victims of such trauma react differently.

ii. As noted earlier, perfect rationality cannot be expected from those being subjected to sexual assault or threats of sexual assault. To the contrary, such victims often experience irrational thoughts and responses in such traumatic situations.

iii. In this particular case, Ms F. provided explanations for the decisions she made at the time in relation to such matters; e.g., outlining why she felt it was safer at the time to agree to have sex with Mr B. to obtain access to a phone, (instead of risking a further violent response from Mr B. if she did not agree to his proposal), and similarly felt it was safer not to risk a violent reaction from Mr B. against her or her family if she completely ended all communication with him before she and her family had safely relocated their home to a new location unknown to Mr B. In my view, regardless of whether or not others may have made the same decisions, those provided explanations cannot be characterized as irrational.

d. I found much of the testimony provided by Ms F., particularly in relation to the essential elements of the offences she was describing, as well as many of the surrounding circumstances, to be remarkably vivid, detailed and compelling. She generally described such events and their consequences rapidly, without hesitation, in a manner that struck me as memory being genuinely “replayed” in her mind rather than anything being fabricated.

e. Like Ms P., Ms F. also admittedly did not have a perfect memory. For example:

i. Having regard to the formal admission or agreement of the parties that the relevant 9-1-1 call to the police was made at 6:16pm, and Ms P.’s testimony of what she saw during the 15 minutes or so during her return to the [specified] residence immediately before that call was made, it seems clear that some of the estimates made by Ms F., in relation to the specific time of day at which particular events had happened, and/or their duration, may be inaccurate. In particular, although she assumed that she and Mr B. had woke up at approximately 5:00pm that day, (based on the timing of subsequently reviewed text messages she recalled sending from the property’s gazebo or “cabana”), and that she thereafter was only in the “cabana” for a relatively short period of time, both assertions cannot be true if Ms P. observed Mr B. and Ms F. in the gazebo and leaving the gazebo on her return to the property, approximately 15 minutes before the 9-1-1 call was placed. Like Ms P., Ms F. clearly (and admittedly) was not making and remembering careful and precise observations of the particular time at which events were taking place that day. As I indicated earlier in relation to Ms P., in my view those incidental timing inaccuracies nevertheless actually had little bearing on whether Ms F. was providing credible and accurate testimony regarding the inherently more unusual, traumatic and therefore memorable events she was describing.

ii. Having regard to the formal admission or agreement of the parties that Mr B. actually was not at the [specified] residence during police attendance there on August 7, 2021, her stated memory of having seen the attending police speaking with Mr B. is also clearly inaccurate. Once again, however, I do not think anything of significance turns on that inaccuracy. It certainly provides a further indication that the memory of Ms F. was imperfect, but otherwise seems to have little bearing on whether her described memory of inherently more traumatic events of that day was credible and accurate. In that regard, I also am mindful that, if those described traumatic events did take place, then Ms F., at the time of the later police attendance she was describing, was recovering from shocking events while in the reassuring presence of the police; i.e., without any incentive at the time to be particularly concerned or mindful of the whereabouts of Mr B. References in the messages exchanged between Ms F. and Mr B. after the events of August 7, 2021, discussing whether the parties had spoken to the police, also provide a basis for inferring that the memory Ms F. had of Mr B. speaking with the police was not a complete fabrication, but a distorted memory based on other information Ms F. had received from Mr B. after the fact.

iii. During the course of her testimony, Ms F. also was careful to indicate the limits of her memory; i.e., candidly acknowledging that she could no longer remember certain details, such as the name of one of the accused’s brothers, surnames, the precise time of day when certain things happened, how or why she was in the “cabana” for a time on the afternoon of August 7, 2021, precisely what she may have said to Ms P. when events thereafter were unfolding, anything that may have been said by Mr L. when he descended to the basement, (although I believe and accept Ms P.’s testimony that there was a verbal exchange between Mr L. and Mr B. when that happened), the precise manner in which Mr B. was said to have hit her again and knocked her to the ground when she was trying to retrieve her personal belongings from where he had thrown them on the street, whether the substantial bruise to her thigh definitely inflicted that day resulted from her being knocked down to the floor of the basement bathroom or Mr B.’s infliction of subsequent blows outside of the home, (which involved his knocking her down onto the street and kicking her thereafter), whether and/or to what extent her belongings other than her phone and designer purse and leather wallet may have been damaged by Mr B.’s actions, the precise details of what happened between the time of the alleged sexual assault and the accused’s mother returning to the [specified] residence, and precisely what she may have said to the police when the police eventually arrived on scene. At other times, Ms F. also expressly refused to speculate about matters she admittedly did not know or about which she was uncertain. However, all such candidly acknowledged limits to the memory and knowledge of Ms F. instilled an impression that Ms F. did have a genuine and definite memory or knowledge of what she was able to recall and describe, while striving to be as accurate and fair as possible. Moreover, while the additional details Ms F. could not remember would have helped to complete the narrative, in my view most if not all of them were relatively incidental to the alleged offences that Mr B. was said to have committed.

f. I did find it mildly troubling that Ms F. clearly had difficulty recalling events that occurred during the initial period after she and Mr B. woke up on August 7, 2021; e.g., in terms of her being unable to recall how she came to be in the gazebo or “cabana” before Mr B. took her phone from her while she was there, apparently when he became angry on learning that she had been communicating with her former boyfriend. However:

i. I am mindful that Ms F. did not accept most of the supplemental narrative put to her in cross-examination as to what happened during that period, and there accordingly is simply no evidence before me to support the suggestion that such events happened, except to the limited extent acknowledged by Ms F.; i.e., that after she and Mr B. woke that morning, Mr B. discovered Ms F. listening to his voicemail messages left earlier that morning, initially took her phone from her but returned it, and then took her phone from her once again when he learned that she had been communicating with her former boyfriend.

ii. In the result, there is simply nothing to support defence counsel’s suggestions that anything else happened during that period, let alone anything that had any real significance, in my view, to the charges against Mr B.. As Ms F. emphasized during the course of her testimony, she had reason to remember the more traumatic events she experienced on August 7, 2021, and little reason to remember, years after the fact, incidental and largely irrelevant details of things that may have occurred before those traumatic events happened.

iii. Moreover, even if there had been evidence to support the occurrence of such additional events, as suggested, in my view that arguably would have lent additional support to the charges against Mr B.; i.e., insofar as it would have provided more evidence of Mr B. feeling anger and/or jealousy towards Ms F. at the time of his alleged violent behaviour, reinforcing the Crown’s argument that he was motivated by such feelings to engage in such misconduct, in order to inflict various forms of punishment on Ms F. for her supposed betrayals of his trust and/or refusal to abide by his directives.

g. I am mindful that there were some internal inconsistencies in the testimony of Ms F., as well as some external inconsistencies with other presented evidence, in the sense that the testimony of Ms F. diverged from that Ms P., exhibits and agreed facts in some respects. In that regard:

i. There were times when Ms F. proactively indicated a need to correct her earlier testimony. That sometimes was done in relation to what I viewed as relatively minor matters; e.g., providing a more definite time estimate as to the time by which she and Mr B. had woken up on August 7, 2021, and correcting the precise date on which photographs of her injured face had been taken, without such corrections significantly altering the indicated timeline in that regard. However, there were other instances when such self-correction was done in relation to more significant matters. For example:

1. Ms F. indicated a need to correct and therefore revise earlier portions of her testimony about the events of that day, (i.e., in terms of their precise sequence and location), after recalling additional specifics of what had happened that day, and/or having her memory refreshed by contemporary or subsequent preserved text messages, helping her to clarify the chronological order of when and where certain things had happened. In particular, as noted earlier, while initially indicating that Mr B. had taken and destroyed her phone and assaulted her in various ways before the two had ever gone outside that day, she then had a memory of using her phone outside, (in what she called the “cabana type set up in the corner on the left side of the backyard” of the home, while Mr B. possibly was with her there), before that phone was destroyed. That memory then was further refreshed and confirmed when she was supplied, during the course of her extended testimony, with the content of text messages she had been exchanging with her former boyfriend and her father that day, from the gazebo, before that texting apparently was interrupted and her phone was destroyed.

2. As also noted earlier, Ms F. initially could not remember precisely how Mr B. may have struck her while the two were outside the [specified] residence, and on the street in front of the home, while she was trying to retrieve other personal belongings Mr B. had thrown into puddles located there. However, after dwelling further on the matter during the course of her testimony in chief, and a review of her earlier preserved text messages sent to Mr B. after the incident, she recalled that he had kicked her a number of times while she was on the ground there.

ii. As I noted a moment ago, the testimony of Ms F. arguably was also inconsistent with that of Ms P. in some potentially significant ways. In that regard:

1. I note that Ms P.’s testimony included no mention whatsoever of Ms F. directly addressing Ms P. in the basement hallway in the manner Ms F. recalled. Had any such encounter and/or interaction taken place after Ms P. became concerned about apparent fighting going on in the basement, I think Ms P. almost certainly would have mentioned that encounter and/or interaction in her testimony.

2. The suggestion by Ms F. that the initial basement bathroom altercations she described occurred immediately after she and the accused returned to the basement, and that she saw Mr L. descending towards the basement after the period of Mr B. repeatedly smashing the phone of Ms F. against the bathroom floor, and Ms F. screaming in pain and pleading with Mr B. to stop hurting her while repeatedly thumping the basement door against the head of Ms F., is also at odds with:

a. Ms P.’s testimony that Mr L. did not return to the house until sometime after the accused, Ms F. and Ms P. had descended to the basement, and sometime after Ms P. started packing her overnight bag while hearing initial indications of an argument downstairs; and

b. Ms P.’s testimony that she heard sounds consistent with such escalated conflict, (i.e., the screams of Ms F. accompanied by thumping sounds), only after Ms P. had gone upstairs to inform Mr L. that she had heard initial sounds of some kind of argument going on in the basement, and only after Mr L. had come downstairs to make an unsuccessful attempt at intervention before heading upstairs again and leaving the home.

3. I found such apparent inconsistencies between the testimony of Ms P. and Ms F. to be problematic; e.g., insofar as there seemed to be no basis for doubting the credibility or reliability of Ms P.’s testimony in relation to such matters, and I think it unlikely that she would have omitted any reference to such a direct observation and interaction when describing what was going on in the basement, while recounting her indirect experience in that regard in such detail.

4. In the result, I think it much more likely that the complainant’s remembered sightings of Ms P. and Mr L. in the basement that day represented further examples of Ms F. remembering things that happened, but out of their precise timing sequence. In particular, I think it far more likely:

a. that the altercation in the basement bathroom did not occur immediately after the accused and Ms F. returned to the house and basement from the gazebo outside, but sometime after the couple had gone to the basement bedroom and continued to quarrel, including further argument about the accused being provided access to the phone of Ms F.;

b. that the sighting of Ms P. in the basement described by Ms F., and comments Ms F. may have made to Ms P. in that regard, (even if Ms Patters did not hear those comments or somehow forgot about them), occurred when the accused and Ms F. initially descended to the basement, followed shortly thereafter by Ms P., while the couple initially were arguing about the accused taking the phone of Ms F., and while Ms P. passed them on her way through the basement landing on her initial way to her own basement bedroom;

c. that the sighting of Mr L. by Ms F. occurred prior to the altercation in the basement bathroom, and after the accused and Ms F. initially had been arguing in the accused’s bedroom, causing Ms P. to report that initial argument to Mr L. before returning to her bedroom to continue packing; and

d. that the altercation in the basement bathroom, subsequent hair pulling, and the return of Mr B. and Ms F. to the accused’s basement bedroom occurred after Ms P. had returned to her basement bedroom to finish her packing, and after Mr L.’s abortive attempt at intervention and departure from the house, but before Ms P. then passed the closed door of the accused’s basement bedroom as she was leaving the residence.

iii. As I noted earlier, the existence of significant inconsistencies in testimony, whether internal or vis-à-vis other witnesses, particularly in an account provided by a complainant whose evidence is central to a charge against the accused, is inherently a matter of concern in terms of assessing credibility and reliability. In this particular case, however, I thought such inconsistences, to the extent they existed, had less import than they otherwise might have had for a number of reasons, including the following:

1. In my view, most of the internal inconsistencies in the testimony of Ms F., and the instances where her testimony deviated from that of Ms P., related to the precise location and/or sequence in which various events had happened; e.g., as to whether the initial taking of her phone had occurred indoors or outdoors, whether she and/or the accused had been outside at all prior to certain other events happening, and the timing of Ms F. seeing Ms P. and Mr L. after Ms F. and Mr B. had returned to the basement of the [specified] residence.

2. Such inconsistencies generally did not extend to the essential elements of the particular offensive conduct Ms F. was describing, in respect of which her testimony generally remained very clear. In particular, Ms F. had definite and vivid memories of Mr B. doing various hurtful things to her on the day in question, despite her initial lack of certainty regarding more peripheral matters such as the precise timing of those events and incidental aspects of the surrounding circumstances.

3. As noted earlier, such inconsistencies stemmed largely from Ms F. proactively realizing and acknowledging inaccuracies of time and place in her earlier testimony and then correcting herself, as she further recalled details or was presented with additional evidence that served to refresh her memory; i.e., additional details that helped her to place events in their proper location or sequence as she was called upon to relive, many years later, the events that occurred on the day in question. In the result, the overall impression I had was of a witness trying to be fair and accurate, in relation to the circumstances surrounding her unchanged recollection of matters fundamental to the charges against the accused, rather than a witness who was deliberately lying.

4. Again, what stood out, in my view, was the ability of Ms F. to remember clear details of the relevant offensive conduct directed towards her and her property by the accused, the essential details of which generally did not change, despite Ms F. initially having difficulty recalling more peripheral matters concerning the precise locations or time sequences involved. In my view, that distinction is important and not surprising; i.e., insofar as the occurrence and nature of such offensive conduct inherently would have been much more significant and memorable from her perspective, as opposed to the more peripheral circumstances surrounding that conduct.

5. Moreover, the corrections to the initial testimony provided by Ms F., regarding the precise location and sequence of events, was in my view corroborated to some extent by the independent testimony of Ms P., insofar as Mr B.’s relevant taking of the phone belonging to Ms F., leading to the offensive conduct described by Ms F., happened while the couple was outside; i.e., before Ms F. then followed Mr B. and the phone inside to the vicinity of the basement bathroom at the bottom of the stairs and the accused’s basement bedroom. That reinforced my impression that Ms F. generally was revising and correcting her testimony in an accurate manner as she recalled further details.

6. The initial inability of Ms F. to recall precisely how she may have been struck by Mr B. while she was in the street outside the [specified] residence, while trying to retrieve her personal belongings that had been thrown into puddles there by Mr B., and her recollection thereafter that she had been kicked repeatedly in the street by Mr B., was more concerning to me; i.e., insofar as it related to particulars of alleged intentional applications of force to her by Mr B., and therefore to an essential element of the charged assault offence. In that regard:

a. As such conduct involved the further infliction of violent blows, it arguably would have been just as memorable from the perspective of Ms F. as other violence by Mr B. that was said to have been exhibited that day.

b. However, as noted above, when initially asked to recall what violence may have occurred while she and Mr B. were out on the street in front of the [specified] residence, Ms F. explained and emphasized that Mr B.’s conduct there had never held the same importance for her as the initial, unprecedented and completely unexpected outbursts of violence by Mr B. that had occurred when they were in the basement bathroom together, or the sexual assault that took place later in the day. As also noted above, during the course of the trial, Ms F. also had cause to review the preserved text messages, in which there were references to her being kicked, which served to refresh her memory. Moreover, in cross-examination, she also emphasized that the trial process itself, (e.g., requiring her to relive and talk about “the worst days of her life for three days in a row”), had led to previously blocked memories of further details rushing back to her in the quiet after returning home. In my view, all of those explanations for her initial failure to mention the kicking she eventually recalled at trial seemed genuine and sensible.

c. In my view, the objective photographic evidence of severe bruising to the upper left thigh of Ms F. also provided a measure of corroboration that she had been struck violently in that portion of her leg; i.e., evidence entirely consistent with her recalled memory that Mr B. had kicked her leg area.

7. For such reasons, I did not think such internal inconsistencies in the testimony of Ms F., and/or inconsistencies with the testimony of Ms P. detracted from my overall impression that Ms F. generally was a credible and reliable witness.

iv. Although efforts were made during cross-examination of Ms F. to demonstrate that she had made prior statements inconsistent with her testimony at trial, (i.e., by indicating things in her police statement that varied from her trial testimony), and/or other prior statements that significantly undermined her credibility, in my view those efforts were not successful and/or related to matters of relatively little significance to the central matters in issue. For example:

1. It was suggested that Ms F. had made inconsistent statements about whether she was under the influence of Ativan and “out of it” in the early morning hours of August 7, 2021, when she was picked up in Vaughan by Mr B. However, further questioning and answers in that regard made it clear, in my view, that the suggested divergence stemmed from Ms F. merely disagreeing with defence counsel suggestions regarding the extent to which Ms F. had been affected by her taking of Ativan at the relevant time. The fact that she was under the influence of Ativan at the relevant time was not disputed, and the statements of Ms F. in that regard were essentially consistent. Moreover, in my view, the extent to which Ms F. was experiencing such effects in the late afternoon on August 7, 2021, (i.e., a short time before placing of the relevant 9-1-1 call at 6:17pm, and therefore approximately 21 or 22 hours after taking Ativan the evening before, did not seem very relevant to her condition when the underlying alleged misconduct of Mr B. was said to have occurred shortly before placement of the 9-1-1 call or thereafter.

2. It was suggested that Ms F. had made inconsistent statements as to whether it was her decision or that of Mr B. to end their relationship on August 2, 2021. In my view, however, Ms F. effectively demonstrated, by reference to other passages from her statement to the police, that a passing reference to her and Mr B. not being together “even though it was … his own decision” was being taken out of context and read improperly in isolation; i.e., whereas the remainder of her statement made it clear that she was the one who had instigated the break up for reasons outlined to Mr B., which had subsequently caused him to be upset. When Ms F. also offered to take defence counsel to her relevant text message communicating her decision to end the relationship, questioning quickly moved on to another topic. In any event, in my view the question of who decided to end the relationship had little bearing on determining what had happened on August 7, 2021, or thereafter.

3. Focus was placed on a passing reference in Ms F. indicating in her police statement that she had only “20 minutes of memory”, between August 7, 2021, and the giving of that police statement. In my view, however, the suggestion that statement should be taken literally was demonstrably false. Whether or not her stated memories were accurate and/or consistent, the preserved text communications exchanged between Ms F. and Mr B. between August 7, 2021, and September 30, 2021, forming part of the narrative, make it absolutely clear that Ms F. was professing to have numerous detailed memories of what had happened on August 7, 2021. As she explained in the course of her trial testimony, the reference in her police statement to having only “20 minutes of memory” over the two months prior to giving her police statement was a reference to her experiencing difficulty “piecing together” the precise timing and sequence of events that took place on August 7, 2021, and putting them in their exact chronological order, although she knew with certainty that they had happened. She remembered the “very traumatizing things that happened”, but would “forget the more minute and irrelevant details of the day”. In my view, that was a sensible explanation of what she had been trying to communicate in her statement to the police, particularly when that statement is read in its broader context.

4. It was emphasized that, in her statement to the police, Ms F. referred only to taking Ativan on the night of August 6, 2021, without specifically indicating, as she did at trial, that she had taken only one Ativan tablet that evening. In my view, however, that surface variation was not really an inconsistency between her testimony at trial and any prior statement, but the provision at trial of consistent but more specific information.

5. It also was suggested in cross-examination, that Ms F., in her statement to the police, had mentioned nothing about broken glass in the basement bathroom that may have cut her hands and feet, or about her hair being pulled or missing, as a result of Mr B.’s supposed actions. In re-examination, however, Ms F. was specifically taken to other portions of that earlier statement to the police, wherein she had described:

a. Mr B. repeatedly smashing her phone, (including its glass screen), on the floor of the basement bathroom; and

b. the injury she had as a result of her hair being pulled by Mr B.

h. During cross-examination, a good deal of emphasis was placed on the fact that Ms F. admittedly had tried to listen to the voicemail messages that Mr B. had left for her during the early morning hours of August 7, 2021, (i.e., before eventually meeting and picking her up in Vaughan), despite having told Mr B. she would not do so; i.e., in response to his making her give that promise, because he did not want her to hear the hurtful things he had said, and his emphasizing that, if she listened to the messages, it would be a “betrayal of his trust” and he would “know for sure” she was a liar who could not be trusted, such that he would not want to talk to her anymore. To the extent it was being suggested that Ms F. therefore was a dishonest person who could not be trusted to provide truthful testimony at trial, I disagree. In my view, the inter-personal dynamics of those struggling with the vicissitudes of an intimate relationship immediately after its breakup, and a “promise” made by someone labouring under the effects of Ativan at 5:00am, cannot readily be equated with courtroom proceedings and a solemn affirmation to tell the truth during testimony provided at trial. The simple fact of the matter is that the relevant phone belonged to Ms F., and she was perfectly entitled to change her mind and listen to the relevant messages, despite what Mr B. made her “promise” in the middle of night when she was being driven from Vaughan to London while still labouring under the effects of Ativan. To the extent her listening to the message was being emphasized as any suggested justification for any of Mr B.’s described misconduct thereafter, in my view the suggestion clearly had no merit whatsoever.

i. I was impressed by the candour with which Ms F. recounted matters which may have cast her in a somewhat negative light; e.g., in relation to her struggles with drug addiction and her lapse in that regard, (insofar as she once again resorted to the taking of Ativan on one occasion), and her ready acknowledgment that she had embarked on a romantic relationship with Mr B. during the course of their shared rehabilitation treatment, despite knowing that was clearly a violation of the facility’s rules in relation to such matters. I also was struck by the manner in which she was still willing, despite her allegations of serious misconduct by the accused, to say very positive things about Mr B.’s previous behaviour; e.g., emphasizing his kindness and patience, as well as his general non-threatening demeanor that made her entirely comfortable in his presence. Such matters reinforced my impression that Ms F. was doing her best to provide her testimony in an accurate and fair way.

j. I also was impressed by the demonstrated ability of Ms F. to recall details of her electronic communications with Mr B. in vivid and frequently almost exact detail, often without immediate reference to the preserved communications in that regard that were filed as exhibits. In particular, when presented with initial evidence of messages that had been preserved, containing her responses to messages Mr B. had “unsent”, her recollection of what Mr B. had said in his “unsent” messages frequently was then shown, (by further reference to preserved “screen captures” of the “unsent” messages), to be not only generally accurate but sometimes precisely accurate. I am mindful that such a demonstration might also have reflected careful preparation by a witness reviewing intended exhibits in advance of trial, but that was not my impression. In particular, Ms F., in the course of her testimony, appeared to be mentally reliving the details of communications she recalled in vivid detail because they had been so infuriating to her at the time, and/or otherwise emotionally impactful to her when they were taking place. If such recollections were the product of witness preparation, in whole or in part, they demonstrated, in any event, that Ms F. was someone capable of remembering things in precise detail.

k. As noted above, the demeanor of a testifying witness is certainly not the only or decisive factor to be considered in assessing credibility, but it is a relevant consideration. In that regard:

i. In my view, the testimony of Ms F. was characterized by periods of stoic determination that nevertheless were punctuated by occasional loss of control and apparently genuine and tearful upset, (sometimes requiring short recesses in the proceeding before her testimony continued), as she was called upon to relive and relate her described experience.

ii. I think it fair to say there were times when Ms F., during the course of cross-examination, displayed a slightly combative, irritated and/or argumentative stance suggesting resentment that certain suggestions were being put to her that she regarded as baseless, otherwise inaccurate or unfair; e.g., because they were fundamentally at odds with the lived experience she was describing, because she already had indicated that she did not remember certain things, or because suggestions being put to her were at odds with other things she had indicated in her previous testimony or elsewhere in her earlier statement to the police. Her demeanor in that regard nevertheless settled somewhat when reminded from time to time that it was the duty of defence counsel to put suggestions to Ms F. while she was in the witness box, even if Ms F. clearly disagreed with such suggestions. In any event, I never formed an impression that Ms F. was less than intent on describing what she honestly believed to be the truth. She repeatedly agreed with many things put to her by defence counsel. She simply but strongly disagreed with other suggestions that were put to her, and stood up for herself in that regard.

iii. In cross-examination, it was suggested by defence counsel that there were times during the testimony of Ms F. during which she exhibited strong feelings of disdain for and/or hostility towards Mr B.; e.g., by “glaring” at him, and/or saying “cutting things” about him and his alleged misconduct at various points in her testimony. In my view, there was a degree of truth in such suggestions; i.e., that Ms F. harboured such feelings towards Mr B. In my view, however, such a demeanor was equally consistent with that of someone speaking the truth about another who has wronged that person in numerous and profound ways.

59With all of the above matters in mind, I turn, finally, to a consideration of the six charges against Mr B. set forth in the underlying indictment.

CONSIDERATION OF PARTICULAR CHARGES AGAINST THE ACCUSED

60The specifics of those six charges already have been noted earlier, along with the essential elements of each charged offence Crown Counsel must prove beyond a reasonable doubt to secure a conviction.

61Although I think it clear that the six alleged offences were said to have taken place in an order different from that suggested by the order in which they are addressed by the indictment, I will address each of the six counts in the order of the indictment to avoid any possible confusion in that regard.

62I therefore turn first to the charge of criminal harassment contrary to s.264(3) of the Code, addressed by Count 1 of the indictment. In that regard:

a. As for whether the accused Mr B. repeatedly communicated either directly or indirectly with S.F. between August 7th and September 30th, 2021:

i. As outlined earlier, in considerable detail, I was presented with evidence, (not only via the testimony of Ms F., but also by way of exhibits, tendered, examined and discussed at length), describing and documenting a myriad of communications exchanged back and forth between Mr B. and Ms F., in various ways, in the period between August 7, 2021, and September 30, 2021.

ii. In my view, the Crown accordingly has established the first essential element of criminal harassment beyond a reasonable doubt.

b. As for whether the accused Mr B. had no lawful authority to engage in such repeated communications with Ms F.:

i. As noted above, (and as we routinely instruct our juries in accordance with standard specimen jury instructions), to have “lawful authority” to do something means “that the law specifically allows a person to do, in the circumstances in which he did it”. [Emphasis added.]

ii. While I was provided with no authority regarding this or any other essential element of the criminal harassment offence charged in Count 1 of the indictment, I independently am mindful of Ontario authority indicating that, in this context, that concept of “lawful authority” should not be limited to more “official types” of authority, such as police authority or other government sanctioned authority. See R. v. Vandoodewaard, [2009] O.J. No. 5099 (S.C.J.), at paragraph 75. Moreover, such “lawful authority” may include statutory justification or common law authority. See R. v. Bottineau, [2007] O.J. No. 1495 (S.C.J.), at paragraph 46, and R. v. Vandoodewaard, supra, at paragraph 77. Cited examples, providing an idea of what sort of “lawful authority” is contemplated in this context for contact or communication that might otherwise be unwelcome by the recipient, include express or implicit legal authorizations in the nature of court ordered access to children, and contact to relay information of an emergency nature. See, for example, R. v. Davis, 1999 CanLII 14505 (MB QB), [1999] M.J. No. 477 (Q.B.), at paragraph 61.

iii. Other authority has emphasized that there also are limits to ostensible lawful authority to contact another; i.e., insofar as such lawful authority falls away when it is used to mask an unlawful purpose, which includes situations where the predominant purpose of such contact is harassment. In particular, it has been emphasized that the “lawful authority” aspect of contact underlying the charged offence cannot be abused to “cloak” or “mask” otherwise impermissible conduct where the predominant purpose of such contact is harassment, even if other aspects of the contact might be regarded as lawful. See, for example, R. v. Brock, 1999 ABPC 158, [1999] A.J. No. 1589 (Prov.Ct.), at paragraph 14, and R. v. Vandoodewaard, supra, at paragraphs 84-87.

iv. I am mindful that, as an essential element of the criminal harassment offence created by s.264 of the Code, the absence of lawful authority is something the Crown has the burden of proving beyond a reasonable doubt. There is neither a persuasive burden nor evidentiary burden on the accused in that regard. See R. v. Williams (2008), 2008 ONCA 173, 228 C.C.C. (3d) 414 (Ont.C.A.), at paragraph 24. Having said that, I also am mindful of other appellate authority emphasizing that, in the “criminal harassment” context, “lawful authority” means nothing more than something rendering legally permissible that which would otherwise be prohibited conduct. Where the defence posture at trial is that no prohibited conduct within the meaning of s.264 of the Code has occurred, it follows that a defence of “lawful authority” has no air of reality. See R. v. Sillipp, 1997 ABCA 346, at paragraph 20.

v. In this particular case, it certainly was the defence position at trial that no prohibited conduct within the meaning of section 264 of the Code had taken place. Moreover, the evidence presented by the Crown indicates no lawful authority justifying or warranting any communications by the accused that may have been unwelcomed by the complainant, and which were otherwise harassing within the sense required by section 264 of the Code, during the period between August 7, 2021, and September 30, 2021.

vi. In my view, the Crown accordingly has established the second essential element of criminal harassment beyond a reasonable doubt.

c. As for whether such repeated communications by the accused Mr B. harassed Ms F.:

i. Based on the testimony provided by Ms F., which I found to be credible and reliable, I am satisfied beyond what I consider to be a reasonable doubt that many of the repeated communications directed to her by Mr B., within the relevant period set forth in Count 1 of the indictment, “harassed” Ms F., in the sense that they repeatedly caused her to feel genuine distress, torment, frustration and annoyance. Without limiting the generality of the foregoing, many of the preserved messages and the testimony from Ms F. satisfy me that such feelings clearly were engendered by the content, tone and method of many, (albeit clearly not all), of the relevant communications sent by Mr B.. For example:

1. The content of Mr B.’s communications to Ms F. repeatedly indicated, in my view:

a. a reluctance to provide any sustained acknowledgement of the various forms of violence he had inflicted on Ms F. and her property, addressed later in these reasons;

b. an inclination to minimize such misconduct on his part;

c. allegations or suggestions by Mr B. that there had been forms of misconduct on the part of Ms F., (repeatedly denied by her), somehow justifying or “balancing out” Mr B.’s misconduct;

d. an inclination to level horrible insults at Ms F.;

e. an inclination to mock, belittle, degrade and otherwise humiliate Ms F. while inviting others to participate in his calls; and

f. a willingness to send Ms F. repeated reminders that he had intimate images and videos of her which he had not deleted, and which he previously had threated to distribute if Ms F. ever broke up with him.

2. The tone of Mr B.’s communications to Ms F. repeatedly indicated, in my view, an argumentative or combative approach, and a tendency to sarcasm and mockery.

3. The manner of Mr B.’s communications to Ms F. was characterized, in my view, by numerous aspects making them inherently oppressive and annoying, including their volume and frequent indications of persistence that would not stop until a response was received, the time of day at which they were sent or initiated, and the insistence on rapid deletion of sent messages making it difficult for Ms F. to respond.

ii. In my view, the Crown accordingly has established the third essential element of criminal harassment beyond a reasonable doubt.

d. As for whether the accused Mr B. knew that such repeated communications harassed Ms F.:

i. In my view, this is the essential element of the charged criminal harassment offence where the Crown’s case falters, in terms of establishing all elements of the charged Count 1 offence beyond a reasonable doubt. Without limiting the generality of the foregoing:

1. I found this particular aspect of the criminal harassment charge troubling, insofar as there were clearly indications, on the face of the preserved messages presented in evidence, and in the credible and reliable testimony of Ms F. providing more fulsome context, (e.g., in relation to “unsent” deleted messages, and what was said back and forth between the parties during audio and video chat conversations), that Ms F. intermittently was providing Mr B. with indications of frustration, annoyance and displeasure.

2. However, Ms F. herself repeatedly confirmed, in the course of her testimony, and through her contemporaneous preserved communications, that Mr B. also was being provided with repeated indications that Ms F. generally was content to continue the ongoing back and forth communications; e.g., by repeatedly responding to his communications at all hours of the day or night, by proactively initiating such communications herself, (albeit on a less frequent basis), and by sending communications to Mr B. that sometimes were cordial, positive and/or affectionate, owing to her acknowledged conflicting emotions and episodes of continued fondness for Mr B.. Despite her intermittent indications that she wanted the communications to end, and her occasional “blocking” of such communication, ongoing communications between Ms F. and Mr B. also clearly would either continue immediately without much interruption or resume after a temporary interval. As noted earlier, Ms F. also indicated, in those ongoing communications, a desire and willingness to see Mr B. again in person at least one more time, (i.e., to discuss an extended list of topics or questions), and made agreed arrangements for Mr B. to attend her home in Vaughan for that purpose and to facilitate further exchanges of property.

3. Moreover, as Ms F. herself emphasized, she was intent on keeping the communications between herself and Mr B. active and ongoing until she and her family could relocate to a new home; i.e., a place where she would feel more safe from the possibility of Mr B. trying to seek her out in person, or engage in other forms of violence and retribution, if he got the sense that Ms F. was not willing to continue ongoing electronic communication. In effect, Ms F., by her own admission, was making active efforts to keep Mr B. engaged in those ongoing communications, which in my view inherently would have involved efforts to make Mr B. believe that Ms F., on the whole, generally was agreeable, content or otherwise satisfied with the overall content, tone and manner of the ongoing back and forth communications exchanged between August 7, 2021, and September 30, 2021, and willing to have them continue, despite her occasional and passing expressions of upset, or indications to the contrary.

4. To be clear, I do not fault Ms F. in the slightest for adopting a deliberate strategy of maintaining any “false front” in that regard; i.e., to keep Mr B. engaged in ongoing electronic communications that hopefully would continue revealing his whereabouts to Ms F., and provide him with a lack of incentive to visit or interact with her in other ways until her family could complete their planned relocation to a new home unknown to Mr B.

5. In the result, however, I have what I consider to be a reasonable doubt as to whether Mr B. would have known, (in any of the previously described ways such knowledge can be established in law), that the repeated, passing and sometimes relatively fleeting indications of distress, torment and annoyance expressed by Ms F. in her ongoing communications with Mr B. were genuine, serious and/or lasting, such that she was experiencing any feelings of annoyance and the like “continually or chronically”; i.e., given her clearly demonstrated willingness, (often and usually indicated immediately or shortly thereafter), to have such communications continue.

6. Again, to be clear, I have no doubt, having received and considered the testimony of Ms F. at trial, that those indications of distress, torment and annoyance were genuine and serious, and reflected the repeated and mounting exasperation of Ms F. with the situation, and her having to endure such ongoing communications. For present purposes, the question is whether the Crown has proven beyond a reasonable doubt that Mr B., at the time of the relevant repeated communications, knew that his communications were indeed harassing Ms F. in the sense contemplated by s.264 of the Code. For the reasons I have outlined, I simply am not sure, (in the sense I am required to be for a finding of guilt proven beyond a reasonable doubt), that he would have known that, having regard to all the circumstances.

ii. In my view, the Crown accordingly has failed to establish the fourth essential element of criminal harassment beyond a reasonable doubt. While that finding effectively is sufficient to prevent any conviction of Mr B. in relation to Count 1, I will address the remaining essential elements for the sake of completeness.

e. As for whether such repeated communications by the accused Mr B. caused Ms F. to fear for her safety and/or the safety of her family members:

i. I believe and accept the testimony of Ms F. that, from a subjective perspective, she genuinely feared for her safety and the safety of her family members.

ii. In that regard, I think it fair to say that much of that fear resulted from the knowledge and indications Ms F. had received of Mr B.’s mental instability in the wake of their breakup, (e.g., indicating a willingness to end his life and a corresponding inherent diminished care for the consequences of his actions), and Mr B.’s demonstration on August 7, 2021, (as per my determinations addressed below), that he was able and willing to engage in unexpected but repeated significant forms of violence directed towards the property and person of Ms F. – thereby suggesting his capacity to do the same to other property and persons.

iii. However, I also think it fair to say that Ms F. continued to fear for her safety and the safety of her family members because of the repeated communications she was receiving from Mr B.; i.e., in the sense that they effectively confirmed that Mr B. had not ended his intense and sustained focus on Ms F., provided reminders of the violence Mr B. already had committed, and made Ms F. concerned about possible efforts by Mr B. to engage in more direct forms of interaction and further violence if the communications came to end.

iv. In my view, the Crown accordingly established the fifth essential element of criminal harassment beyond a reasonable doubt.

f. As for whether the fear of Ms F. in that regard was reasonable in the circumstances:

i. I am mindful that, prior to having any involvement or interactions with Mr B., Ms F. admittedly experienced some struggles with anxiety and emotional regulation; e.g., insofar as she had been prescribed medication for extreme panic attacks, and difficulties with emotional regulation admittedly were one symptom of her adult ADHD disorder – although she testified and I accept that such issues were under control on August 7, 2021, following completion of her course of rehabilitation. From an objective perspective, she arguably therefore was subjectively prone to experiencing more fear than others might when placed in a similar situation.

ii. I am also mindful of the candid indication, provided by Ms F. herself, that some would regard her anxious and fearful thoughts as irrational, although they were very real from her perspective. In other words, she herself expressed the view at trial, with the benefit of retrospect, that others of more normal temperament, fortitude and self-control, and not as exceptionally excitable or as easily scared as she perceived herself to be, might have felt differently in the circumstances.

iii. However, in relation to this essential element of the charged criminal harassment offence focuses on whether a reasonable person in the same circumstances as Ms F., and aware of the prior history and relationship between Ms F. and Mr B., would fear for his or own safety or the safety of family members as a result of the repeated communications sent by Mr B. during the period specified in Count 1 of the indictment. In that regard:

1. Such a reasonable person therefore also would have been subjected to the numerous acts of significant and serious violence committed by Mr B. on August 7, 2021.

2. Such a reasonable person also would know that, prior to committing those violent acts, Mr B. had exhibited signs of mental instability, including his expressed willingness to commit suicide and his demonstration of having taken steps to further his plans in that regard; a condition inherently rendering him less concerned about the consequences of his actions.

3. Such a reasonable person also would know that the multiple acts of significant and serious violence committed by Mr B. on August 7, 2021, were completely unexpected and without warning.

4. Such a reasonable person also would know that the ongoing communications from Mr B. were making it clear that he had not lost interest in that person, and was giving every indication of wanting to persist in maintaining a relationship with that person, in turn giving rise to corresponding legitimate concerns as to what he would do if matters did not unfold in the way he wanted them to unfold.

5. Such a reasonable person also would know that Mr B. had included, in those communications, previously obtained intimate images and videos of that person engaged in sexual activity, and be aware of his previous threats to distribute those intimate images and videos; i.e., additional circumstances wherein Mr B. was exhibiting further inherently threatening behaviour.

6. Such a reasonable person also would know that Mr B. knew where the person and his or her family lived, with a demonstrated ability to attend at that location without prior notice.

7. I think a reasonable person, placed in those same circumstances as Ms F., also would fear for his or her own safety, and the safety of his or her family members.

iv. In my view, the Crown accordingly established the sixth essential element of criminal harassment beyond a reasonable doubt.

g. As the Crown nevertheless has failed to prove all six essential elements of the criminal harassment offence charged in Count 1 of the indictment beyond a reasonable doubt, there will be a finding of “not guilty” in relation to Count 1.

63I turn next to the charge of assault contrary to s.266 of the Code, addressed by Count 2 of the indictment. In that regard:

a. As for whether the accused Mr B. intentionally applied force to Ms F.:

i. For the reasons outlined above, I found the testimony of Ms F. to be credible and reliable, making me inclined to believe and accept her account of Mr B. striking her with his open hand to hit her hard on the cheek, (with force sufficient to knock her down to the floor of the basement bathroom of the [specified] residence), inflicting one or more additional blows to her face, (such that she received blows to both sides of her face), pulling her by the hair, striking her again in the street in a manner that caused Ms F. to fall to the ground again, and thereafter kicking her repeatedly in the abdominal and leg area while she was lying in the street.

ii. In my view, Mr B. had a demonstrated motive for inflicting physical pain on Ms F. through the intentional application of force. In particular:

1. I accept the testimony of Ms F., (corroborated in part by Mr B.’s own text communications), that Mr B. believed Ms F. had lied when she promised not to listen to the voicemail messages he had left for her in the early morning hours of August 7, 2021, and also believed that she had been unfaithful to him prior to that date. In my view, the evidence makes it clear that Mr B. wanted Ms F. to suffer and/or be punished for such perceived transgressions.

2. I also believe and accept the testimony of Ms P., (which I found to be credible and reliable), indicating that she heard Mr B., while he was engaged in apparent conflict with Ms F., call Ms F. a “fucking cheating bitch”.

iii. As noted above, no corroboration of the assault allegations made by Ms F. is required to establish a finding of guilt in that regard. However:

1. In my view the exhibit photographs of injuries inflicted to the face and thigh of Ms F. did provide a measure of such corroboration. As noted above, those photographs of her face, although taken a number of weeks after August 7, 2021, (i.e., on August 25, 2021), still depict residual redness and swelling in the affected areas of the face of Ms F. The photos taken of her left upper thigh two or three days after the incident, (i.e., on August 9th or 10th of 2021), clearly depict a severe bruise in that area.

2. I think the account provided by Ms F. also was corroborated to some extent by the objective, credible and reliable evidence provided by Ms P. In particular, Ms P.’s testimony of hearing Ms F. screaming in pain, pleading with the accused to stop what he was doing, and indicating that the accused was hurting her, along with the sounds of repeated impacts of some sort, including a body being slammed up against the closed door of the accused’s bedroom as Ms P. was passing, are all consistent with the accused intentionally applying force to Ms F. while Ms P. was still in the basement of the residence, and with Ms P.’s inference that the accused was beating the complainant in some fashion.

iv. In my view, the preserved messages sent by Mr B. to Ms F., (as supplemented by her further testimony in that regard), contain evidence of admissions against interest by Mr B., acknowledging that he had engaged in misconduct that included hurting Ms F.. I am mindful that the content of Mr B.’s messages in that regard, considered in isolation, does not refer precisely to the form of misconduct committed by Mr B. or the particular form of “hurt” he inflicted on Ms F., and that a person obviously may “hurt” another in various ways, including harm that is not physical but purely emotional. However, I think the surrounding context of those messages, including Mr B.’s references to violence and attempts to argue that the particular hurt inflicted on Ms F. to which he was referring should be distinguished from more aggressive forms of violence that could be characterized as “beating up” someone, makes it clear that Mr B. was referring to some form of physical violence on his part that was directed towards the person of Ms F. In short, I regard the text messages as an admission by Mr B. that he intentionally applied force to Ms F., even though the specific method or methods by which he did so were not specified in his admissions against interest. In my view, clarifications in that regard were provided by the testimony of Ms F., (which I believe and accept for the reasons I have outlined), which in turn received further support from Mr B.’s repeated failure to deny having committed the intentional applications of force to Ms F. that she repeatedly put to him in the preserved text messages.

v. In my view, the Crown accordingly has established the first essential element of assault beyond a reasonable doubt.

b. As for whether Ms F. did not consent to the force that the accused Mr B. applied:

i. I also believe and accept the testimony of Ms F. that she clearly and understandably did not want Mr B. to strike her across the face with his open hand, (so as to knock her to the floor), apply additional blows to her face, pull her by the hair, or strike her again in the street in a manner that caused her to fall to the ground again before he repeatedly kicked her in the abdominal and leg area. Without limiting the generality of the foregoing, I accept her indication that the blow to her face was entirely unexpected, and that she was shocked and bewildered by that blow and Mr B.’s other unprecedented applications of force and violence directed towards her that day.

ii. In my view, the Crown accordingly has established the second essential element of assault with a weapon beyond a reasonable doubt.

c. As for whether the accused Mr B. knew that Ms F. did not consent to the force that Mr B. intentionally applied:

i. I find, based on the testimony of Ms F. as to how the assaultive behaviour in the basement bathroom occurred, (which I believe and accept), that Mr B. was at the very least reckless as to whether or not Ms B. would consent to the force he was applying to her face by slapping it with sufficient strength, using his open hand, to knock her to the floor of the basement bathroom, by applying further blows to her face, by pulling her hair and/or by striking her again outside to put her on the ground once again before repeatedly kicking her. In my view, any rational person would have understood that there was a strong probability that Ms F. would not consent to such an application of force, yet Mr B. failed to make any inquiries in that regard and slapped Ms F. anyway; i.e., proceeding in such an unexpected way that Ms F. understandably was completely shocked and surprised by Mr B.’s intentional applications of force that day.

ii. Moreover, the testimony of Ms F. as to the contemporaneous accusations and name-calling made by Mr B. as he struck Ms F. across the face with his open hand, (which I also believe and accept), and thereafter inflicted further blows, (e.g., to the other side of her face), make it clear that Mr B. was intending to inflict punishment on Ms F. for what he believed to be improper behaviour on her part. In my view, that desire to inflict unwanted punishment was inherently antithetical to any reasonable belief that Ms F. was consenting to Mr B.’s behaviour.

iii. In my view, the Crown accordingly has established the third essential element of assault.

d. As the Crown has proved all three essential elements of the assault offence charged in Count 2 of the indictment beyond a reasonable doubt, there will be a finding of “guilty” in relation to Count 2.

64I turn next to the charge of assault with a weapon contrary to s.267(a) of the Code, addressed by Count 3 of the indictment. In that regard:

a. As for whether the accused Mr B. intentionally applied force to Ms F. in that regard:

i. For reasons already noted, in my view, Mr B. had a demonstrated motive for inflicting physical pain on Ms F. through the intentional application of force; i.e., owing to his beliefs that Ms F. had lied when she promised not to listen to the voicemail messages he had left for her in the early morning hours of August 7, 2021, and been unfaithful to him prior to that date, such that she deserved to suffer and/or be punished for such perceived transgressions.

ii. For the reasons I indicated earlier, I generally found Ms F. to be a credible and reliable witness, making me inclined to believe and accept her testimony that, as she was laying on the floor of the basement bathroom, Mr B. used the door of the basement bathroom to strike her repeatedly on the back of her head; i.e., slamming the corner of that door into the back of her head “over and over again”.

iii. I find that Mr B. did so in a manner that was clearly no accident, not only because it was a repeated action, obviously inflicting blows on Ms F., but because it was accompanied by words indicating that Mr B. was angry and inflicting punishment on Ms F. because of his belief that she had been unfaithful. The relevant application of force by Mr B. to Ms F. therefore was indirect, but clearly intentional.

iv. Although no corroboration of the assault with a weapon allegation made by Ms F. is required to establish a finding of guilt in that regard, in my view the objective and reliable evidence of Ms P. did provide a measure of such corroboration. In particular, Ms P.’s independent testimony of hearing Ms F. screaming in pain, pleading with the accused to stop what he was doing, and indicating that the accused was hurting her, along with the contemporaneous sounds of repeated banging impacts of some sort are, in my view, all remarkably consistent with the testimony of Ms F. describing what was happening while she was lying on the floor of the bathroom, pleading with Mr B. to stop hurting her, while he was repeatedly slamming the door of the basement bathroom against the back of her head. Without limiting the generality of the foregoing:

1. While Ms P. inferred that those sounds were coming from the basement bedroom of the accused, Ms P. actually had no way of knowing with certainty, through the intervening walls of the basement, the precise locational source or cause of what she was hearing while she was in her own bedroom trying to focus on packing her overnight bag.

2. I believe and accept Ms P.’s evidence that, by the time of her departure from the residence, the accused and Ms F. were located within the basement bedroom of the accused, behind its closed door. I also believe and accept Ms P.’s evidence that, as she was leaving the residence and passing the closed door of the accused’s basement bedroom, she directly witnessed something come into contact with that closed door so as to create a loud thud that definitely came from that source. However, I think Ms P.’s understandable inference that previous “thudding” sounds had come from the same door was simply mistaken, and that the thudding sounds she heard earlier were emanating from the basement bathroom and its door before the accused and Ms F. effectively relocated to the accused’s basement bedroom in the manner described by Ms F.

v. In my view, a conclusion that Mr B. intentionally applied force to Ms F. in the manner she described, in relation to Count 3 of the indictment, also was supported by Mr B.’s admissions against interest, noted earlier; i.e., effectively acknowledging that he had inflicted physical hurt on Ms F. in the various ways described in the text messages being sent to Mr B., including striking her repeatedly in the head with the door of the basement bathroom.

vi. In my view, the Crown accordingly has established the first essential element of assault with a weapon beyond a reasonable doubt.

b. As for whether Ms F. did not consent to the force that Mr B. applied:

i. I also believe and accept the testimony of Ms F. that she clearly and understandably did not want Mr B. to be slamming her head with the door of the basement bathroom.

ii. In my view, the Crown accordingly has established the second essential element of assault with a weapon beyond a reasonable doubt.

c. As for whether Mr B. knew that Ms F. did not consent to the force that Mr B. intentionally applied:

i. At the very least, Mr B. was reckless as to whether or not Ms B. would consent to the force he was applying to her head indirectly via the door of the basement bathroom; i.e., knowing there was a strong probability that she would not consent to such an application of force, and failing to make any inquiries in that regard.

ii. However, I also believe and accept the testimony of Ms F., corroborated by the independent testimony of Ms P., that Ms F., while Mr B. repeatedly was inflicting such blows on her head with the door, was just as repeatedly pleading with him to stop because he was hurting her. If Ms P. could hear those cries of Ms F. through a number of intervening walls, Mr B. surely could and should have heard those cries as well, such that he had actual knowledge that Ms B. was not consenting to the force Mr B. was applying to Ms F. via that door of the basement bathroom.

iii. In my view, the Crown accordingly has established the third essential element of assault with a weapon beyond a reasonable doubt.

d. As for whether a weapon was involved in Mr B.’s relevant assault of Ms F.:

i. As noted above, the Criminal Code’s definition of “weapon” includes “anything used … in causing … injury to any person”.

ii. I accept and believe the testimony of Ms F. that Mr B. used the door of the basement bathroom in the [specified] residence to cause her injury; i.e., by repeatedly slamming the corner of that door against her head, causing her to feel both immediate pain, as well as headaches for approximately two weeks after the incident, and resulting in a long-lasting scab on her head at the location of the blows from the door, where her hair took a long time to grow back.

iii. In my view, the Crown accordingly has established the fourth essential element of assault with a weapon beyond a reasonable doubt.

e. As the Crown has proved all four essential elements of the assault with a weapon offence charged in Count 3 of the indictment beyond a reasonable doubt, there will be a finding of “guilty” in relation to Count 3.

65I turn next to the charge of sexual assault contrary to s.271 of the Code, addressed by Count 4 of the indictment. In that regard:

a. As for whether the accused Mr B. intentionally applied force to Ms F.:

i. For the reasons I outlined earlier, I generally regarded Ms F. as a credible and reliable witness, and I accept her testimony, (essentially unchallenged), that Mr B. engaged in vaginal intercourse with Ms F., without use of a condom, on August 7, 2021.

ii. Such an application of force is inherently intentional; i.e., insofar as it seems impossible to imagine that described vaginal intercourse happening by accident. However, I also believe and accept the testimony of Ms F. that the vaginal intercourse in question took place after it was proposed by Mr B., (as a suggested quid pro quo for his permitting Ms F. access to a working phone), and after he had instructed Ms F. to remove her clothing. The relevant application of force underlying the sexual assault charge clearly did not occur by accident.

iii. In my view, the Crown accordingly has established the first essential element of sexual assault beyond a reasonable doubt.

b. As for whether Ms F. did not consent to the force that Mr B. applied:

i. I believe and accept the testimony of Ms F. that, despite her verbal indication of agreement to have sex with Mr B. one final time in exchange for his promise that she would be given access to a working phone, in her mind she actually did not want to have sex with Mr B., did not want him to touch her in a sexual fashion at all that day, and was not genuinely consenting to have sex with him, but felt at the time that she was obliged to do so in order to call her father and safely leave the situation in which she found herself. In that regard:

1. As noted earlier, genuine “consent” to an intentional application of force requires a voluntary decision in that regard by the complainant made through the exercise of free will. As emphasized by s.265(3) of the Code, a decision made under duress, because of threats, and/or induced by fraud or abuse of authority, is not true “consent” in the sense required. Moreover, consent to any intentional application of force does not exist merely because a person to whom such force is applied submits or offers no resistance in that regard, owing to such factors.

2. Furthermore, and as also noted above, consent in the sense required exists only when the person to whom such force is applied has knowledge of what the other person is going to do in that regard, and the manner in which that will be done, and voluntarily agrees to the relevant application of force on that basis.

3. In my view, the ostensible indication of agreement and subjective consent to sexual activity provided by Ms F. at the outset of the sexual incident she described was no true, genuine or legally adequate indication of subjective consent to the relevant intentional applications of force underlying the charge of sexual assault in this case. Without limiting the generality of the foregoing:

a. At best, the ostensible consent expressed by Ms F. was in the nature of a broad advance consent to sexual activity of an unspecified nature. Our law does not regard any such consent to be legally valid. Again, see R. v. J.A., supra.

b. I believe and accept the testimony of Ms F. that her indication of agreement in that regard was made under duress; i.e., in circumstances where she honestly and understandably felt that her safety was in danger, (owing to the violence that Mr B. had inflicted upon her and her property in the time leading up to that point), and she genuinely perceived that an indication of agreement to sexual activity was the only readily available means of gaining access to a phone that would facilitate her escape from the situation she was in.

c. I also believe and accept the testimony of Ms F. that her indication of agreement to sexual activity with Mr B. was induced by his false representation that he would provide her with access to a working phone if she had sex with him.

d. In my view, the ostensible indication of subjective consent to sexual activity procured by Mr B. from Ms F. therefore resulted, at the very least, from:

i. fear of application of force, insofar as Ms F. had understandable reasons to be afraid of Mr B.’s response if she did not agree to his proposal of sexual activity, given his repeated demonstrations of violence towards her and her property a short time before, and her once again being alone in the [specified] residence with Mr B. at the time; and/or

ii. fraud, insofar as her indication of consent to sexual activity was based on Mr B.’s representation that he would provide Ms F. with access to a working phone if she had sex with him, while his subsequent words and actions demonstrated that he actually had no intention of doing so.

e. In my view, Ms F. also clearly did not know, when she provided that ostensible consent to one final episode of sexual activity with Mr B. to obtain access to a telephone, that Mr B. would be subjecting her to degrading and humiliating insults, accusations and demands that she “shut up” while engaging in vaginal intercourse.

f. Although the above reasons are sufficient to warrant a finding that the indication of consent to sexual activity provided by Ms F. was not an indication of any true or genuine subjective consent in that regard, based on principles of common law and/or the provisions of s.265(3) of the Code, I also find that any ostensible subjective consent by Ms F. to sexual activity with Mr B., on the occasion in question, was vitiated by the operation of s.273.1(2)(c) of the Code. Without limiting the generality of the foregoing:

i. In my view, the specific fact context established by the evidence is sufficient to establish that Mr B. stood in a position of trust vis-à-vis Ms F. at the time of the intentional applications of force underlying the charge of sexual assault in this case. In particular:

1. I accept and believe the testimony of Ms F. that she and Mr B. necessarily had shared extremely personal information during their common participation in rehabilitation therapy; i.e., such that their relationship, from the very beginning, was one characterized by an intense relationship of trust.

2. Moreover, over the course of the previous five months, the two clearly had developed a well-recognized social or societal relationship, (i.e., that existing between intimate partners), which had led Ms F. to have a firm belief in the reliability or truth or strength of Mr B., confidence in or reliance on his good qualities or attributes, and faith that the special nature of their relationship would not be breached. Despite the formal “breakup” of that relationship, those feelings of trust engendered in Ms F. clearly remained up to the events of August 7, 2021, or she would not have agreed to travel to London once again with Mr B. in the middle of the night, and once again spend a further overnight visit at his home.

3. I am mindful that, at the time of the intentional applications of force underlying the charge of sexual assault, Mr B. had violated the trust of Ms F. by other forms of misconduct addressed herein; i.e., the acts of violence he directed towards her property and to her earlier that day. After that misconduct, Ms F. arguably had reasons to trust Mr B. much less than she did prior to that misconduct.

4. In my view, however, the relationship between the two was still such that Ms F. had sufficient reason, based on the entirety of their relationship, and despite Mr B.’s apparently aberrant behaviour earlier in the day, to trust in the representation of Mr B. that he would provide her with access to a working phone if she had sex with him one last time. In other words, the relationship between the two was still such that she understandably still had faith in Mr B.’s good intentions, at least in that regard.

ii. In my view, Mr B. clearly induced Ms F. to engage in sexual activity by abusing that position of trust. In particular:

1. I find that Ms F. would not have indicated her agreement to engage in sexual activity were it not for that lingering relationship of trust, and the corresponding faith Ms F. had in Mr B. to follow through on his promise to provide her with access to a working phone after engaging in sexual activity. In my view, Mr B. clearly used (and abused) the personal feelings and confidence engendered by the prior intimate relationship between the parties to secure an apparent consent by Ms F. to sexual activity.

2. I find that Mr B. clearly abused that trust, insofar as his subsequent words and conduct made it clear that he actually had no intention of following through on his promise in that regard.

g. Mr B.’s abuse of a position of trust to induce Ms F. to engage in sexual activity is sufficient, on its own, to engage the provisions of s.273.1(2)(c) of the Code, and I therefore find it unnecessary in the circumstances to determine whether or not control over access to a working telephone is sufficient to constitute a position of authority or power, in the sense required, to provide any additional basis for possible vitiation of ostensible consent pursuant to s.273.1(2)(c) of the Code. In my view, that determination should await a case where such a determination may be required.

ii. Even if the indication of agreement to sexual activity expressed by Ms F. at the outset of the incident was somehow regarded as a reflection of genuine subjective consent to such activity at the time that indication was given, in my view the evidence makes it abundantly clear that any such subjective consent to sexual activity did not continue throughout the sexual encounter that followed. To the contrary, the testimony of Ms F. that she was crying and pleading with Mr B. to stop what he was doing during the sexual intercourse which followed, (testimony which I believe and accept), establishes that she most definitely was not voluntarily agreeing to the vaginal intercourse once it was underway, and/or to any continuation of the vaginal intercourse Mr B. pursued through to completion. That alone would suffice, pursuant to ss.273.1(1.1), 273.1(2)(d) and/or 273.1(2)(e) of the Code, to establish lack of subjective consent to the relevant intentional applications of force, (i.e., vaginal intercourse and/or continued vaginal intercourse), underlying the charge of sexual assault in this case.

iii. In my view, the Crown accordingly has established the second essential element of sexual assault beyond a reasonable doubt.

c. As for whether Mr B. knew that Ms F. did not consent to the force that Mr B. intentionally applied:

i. In my view, any suggestion that Mr B. had an honest but mistaken belief in communicated consent in the particular circumstances of this case, (i.e., on the basis that Ms F. indicated her ostensible agreement to have sexual activity in exchange for Mr B.’s promise to thereafter provide her with access to a working phone), is precluded by s.273.2 of the Code, insofar as:

1. At the very least, in my view Mr B. proceeded with recklessness or wilful blindness as to whether that expressed agreement was genuine, within the meaning of s.273.2(a)(ii) of the Code, knowing the circumstances in which that agreement was procured.

2. Having regard to my findings noted and explained above that any such belief on the part of Mr B. arose from circumstances referred to in s.265(3) and 273.1(2) of the Code, a defence of Mr B. believing that Ms F. consented to the relevant activity forming the subject of the sexual assault charge is not available pursuant to s.273.2(a)(iii) of the Code.

3. In my view, there was no evidence to suggest that Mr B. took any steps whatsoever, let alone any reasonable steps, from a subjective or objective perspective, in the circumstances known to him at the time, including the circumstances in which the ostensible agreement of Ms F. to the relevant sexual activity was procured, (with those circumstances including Mr B.’s demonstrated acts of violence towards Ms F. and her property only a short time before), and Ms F. crying and pleading with him to stop throughout the sexual activity that followed, to determine and confirm a genuine voluntary agreement by Ms F. to the relevant sexual activity. In the circumstances, and pursuant to s.273.2(b) of the Code, any defence that Mr B. believed that Ms F. consented to the activity forming the subject-matter of the sexual assault charge is precluded on that basis as well.

ii. Again, for the reasons outlined above as to why I generally regarded Ms F. as a credible and reliable witness, I believe and accept her testimony that she was crying and repeatedly asking Mr B. to stop what he was doing throughout the vaginal intercourse he described. I also believe and accept her testimony that Mr B. himself expressly acknowledged his awareness that she was crying during that vaginal intercourse. In the circumstances, I infer that he had actual knowledge of the fact that Ms B. was not genuinely consenting to the sexual activity underlying the sexual assault charge. Indeed, defence counsel expressly acknowledged, during the course of closing submissions, that if I believed and accepted the testimony of Ms F. that she was crying and asking Mr B. to stop during the described vaginal intercourse, there would be no air of reality to a defence of honest and mistaken belief in consent at that point, and the defence would fall away accordingly.

iii. In my view, the Crown accordingly has established the third essential element of sexual assault beyond a reasonable doubt.

d. As for whether the force that Mr B. intentionally applied to Ms F. took place in circumstances of a sexual nature:

i. As noted above, the relevant intentional application of force underlying the charge of sexual assault was vaginal intercourse. Such activity inherently and clearly occurs in circumstances of a sexual nature that would be apparent to any reasonable person who saw it happen.

ii. Moreover, in this case, the vaginal intercourse in question was accompanied by Mr B. making numerous insulting and hurtful remarks obviously meant to degrade and/or demean Ms F. for Mr B.’s pleasure while that intercourse was occurring.

iii. In my view, the Crown accordingly has established the fourth essential element of sexual assault beyond a reasonable doubt.

e. As the Crown has proved all four essential elements of the sexual assault offence charged in Count 4 of the indictment beyond a reasonable doubt, there will be a finding of “guilty” in relation to Count 4.

66I turn next to the charge of mischief contrary to s.430(4) of the Code, addressed by Count 5 of the indictment. In that regard:

a. As noted earlier, the parties were agreed that Count 5 relates to the damage or destruction allegedly inflicted by Mr B. on the mobile phone of Ms F.

b. As for whether the accused Mr B. interfered in that regard with property having a value less than five thousand dollars:

i. For reasons already noted, in my view, Mr B. had a demonstrated motive for inflicting retribution on Ms F.; i.e., owing to his beliefs that Ms F. had lied when she promised not to listen to the voicemail messages he had left for her in the early morning hours of August 7, 2021, and had been unfaithful to him, such that she deserved to suffer and/or be punished for such perceived transgressions. Visiting damage or destruction upon her phone, or otherwise depriving Ms F. of the lawful use and enjoyment of that phone, was a natural and immediate target of that desire for retribution; i.e., insofar as that phone was the means by which Ms F. was perceived to have broken her “promise” not to listen the voicemail messages Mr B. had left for her earlier on August 7, 2021, and the means by which Ms F. was thought to have been unfaithful by, inter alia, communicating with her prior boyfriend.

ii. For the reasons outlined above, I found Ms F. to be a generally credible and reliable witness, inclining me to believe and accept the testimony of Ms F. describing how Mr B. forcibly deprived her of her phone and refused to return it to her, and then damaged/destroyed it by repeatedly throwing it against the floor of the basement bathroom of the [specified] residence, rendering it non-functional. By his actions, Mr B. thereby not only damaged and destroyed the phone, but obstructed, interrupted and/or otherwise interfered with Ms F.’ lawful use, enjoyment and operation of her property.

iii. Although no corroboration of the Count 5 mischief allegation made by Ms F. is required to establish a finding of guilt in that regard, in my view there was objective and reliable evidence in this case providing a measure of such corroboration. In particular:

1. For the reasons outlined I accept Ms P.’s testimony indicating that she saw the accused “snatch” or “rip” the phone of Ms F. from the hand of Ms F. while the couple was at or near the gazebo, followed by the accused refusing to comply with the demands of Ms F. for the phone’s return, and walking away and into the house with that phone while obliging Ms F. to chase after him in that regard. Such actions by the accused clearly involved the accused obstructing, interrupting and/or interfering with Ms F.’ lawful enjoyment or operation of her phone.

2. The exhibit 3 photographs included clear depictions of the iPhone of Ms F. having been destroyed and/or damaged in a manner that clearly would have rendered it inoperable, thereby preventing its continued lawful use, enjoyment and operation by Ms F. Such evidence was entirely consistent with the mischief described by Ms F., in relation to her phone, that was said to have been committed by the accused.

3. I also accept Ms P.’s testimony that, as she was leaving the residence and briefly stopped into the basement bathroom to grab some necessary toiletries, she observed broken glass and “pieces of something” all over the floor of the basement bathroom. In my view, the location and timing of such observations was also entirely consistent with the complainant’s account of where, when and how the accused destroyed and/or damaged her phone, and rendered it inoperable.

4. In my view, the text sent much later by Mr B. to Ms F., indicating a desire to start paying back the money he owed her, was an admission against interest; i.e., acknowledging that he owed her money because of the intentional interference and damage/destruction he inflicted on the property of Ms F., including her phone.

iv. I accept the unchallenged and uncontradicted testimony of Ms F. that her relevant phone, (an “iPhone 11”), had an approximate value of $1,500.00 to $2,000.00.

v. In my view, the Crown accordingly has established, in relation to Count 5, the first essential element of mischief contrary to s.430(4) of the Code beyond a reasonable doubt.

c. As for whether the accused Mr B.’s conduct in that regard was unlawful:

i. The presented evidence makes it clear that the phone in question belonged exclusively to Ms F. Mr B. had no right or colour of right to damage or destroy that phone, or otherwise deprive Ms F. of her lawful use and enjoyment of that phone.

ii. In my view, the Crown accordingly has established, in relation to Count 5, the second essential element of mischief contrary to s.430(4) of the Code beyond a reasonable doubt.

d. As for whether Mr B.’s conduct in that regard was wilful:

i. The testimony of Ms F. and Ms P. made it clear that Mr B. deliberately snatched, ripped or grabbed the phone of Ms F. from her hand, and thereafter deliberately failed to return it to her despite the pleas of Ms F. in that regard.

ii. In my view, the force that must have been applied to the phone of Ms F., to transform it into the horrendous damaged and/or destroyed and inoperable condition depicted in the exhibit photos, must have been considerable. The described actions of Mr B., in deliberately throwing the phone against the basement bathroom floor and picking it up only for the purpose of throwing it down to that floor again and again, are entirely consistent with the application of such force.

iii. Clearly, none of those actions by Mr B., in relation to the phone of Ms F., were accidental.

iv. In my view, the Crown accordingly has established, in relation to Count 5, the third essential element of mischief contrary to s.430(4) of the Code beyond a reasonable doubt.

e. As the Crown has proved all three essential elements of the mischief offence charged in Count 5 of the indictment beyond a reasonable doubt, there will be a finding of “guilty” in relation to Count 5.

67Finally, I turn to the other charge of mischief contrary to s.430(4) of the Code, addressed by Count 6 of the indictment. In that regard:

a. As noted earlier, the parties were agreed that Count 6 relates to the damage or destruction allegedly inflicted by Mr B. on other personal items of clothing and accessories belonging to Ms F. including, in particular, her designer purse.

b. As for whether the accused Mr B. interfered in that regard with property having a value less than five thousand dollars:

i. For reasons already noted, in my view, Mr B. had a demonstrated motive for inflicting retribution on Ms F.; i.e., owing to his beliefs that Ms F. had lied when she promised not to listen to the voicemail messages he had left for her in the early morning hours of August 7, 2021, and been unfaithful to him prior to that date, such that she deserved to suffer and/or be punished for such perceived transgressions. Visiting damage or destruction upon her personal belongings other than her phone, including her designer purse, or otherwise depriving Ms F. of their lawful use and enjoyment, was another means of fulfilling that desire for retribution.

ii. For the reasons outlined above, I generally found Ms F. to be a credible and reliable witness, inclining me to believe her testimony describing how Mr B. took her personal belongings, (including her clothing, shoes and designer purse), out of his basement bedroom in the [specified] residence, and outside the home, before then throwing them into puddles on the street in front of the house. I also accept her testimony that the actions of Mr B. in that regard damaged her designer purse, (a purse that was worth approximately $2,000.00), by the straps of the purse becoming detached and its exterior being “scratched up” from hitting the street pavement.

iii. As noted earlier, in my view, the text sent much later by Mr B. to Ms F., indicating a desire to start paying back the money he owed her, was an admission against interest; i.e., acknowledging that he owed her money because of the intentional interference and damage/destruction he inflicted on the property of Ms F., including her purse.

iv. In my view, the Crown accordingly has established, in relation to Count 6, the first essential element of mischief contrary to s.430(4) of the Code beyond a reasonable doubt.

c. As for whether the accused Mr B.’s conduct in that regard was unlawful:

i. The presented evidence makes it clear that the property Mr B. removed from his basement bedroom and threw into puddles on the street outside the [specified] residence, including the relevant designer purse, belonged exclusively to Ms F. Mr B. had no right or colour of right to damage or destroy that property, or otherwise deprive Ms F. of her lawful use and enjoyment of that property.

ii. In my view, the Crown accordingly has established, in relation to Count 6, the second essential element of mischief contrary to s.430(4) of the Code beyond a reasonable doubt.

d. As for whether Mr B.’s conduct in that regard was wilful:

i. It clearly took considerable and deliberate effort for Mr B. to remove the personal belongings of Ms F., including her designer purse, from his basement bedroom to the street outside his home, and throw those belongings into the puddles that were located there. His conduct in that regard was clearly no accident.

ii. In my view, the Crown accordingly has established, in relation to Count 6, the third essential element of mischief contrary to s.430(4) of the Code beyond a reasonable doubt.

e. As the Crown has proved all three essential elements of the mischief offence charged in Count 6 of the indictment beyond a reasonable doubt, there will be a finding of “guilty” in relation to Count 6.

Conclusion – Formal delivery of verdicts

68At this point, I will ask the accused, J.F.B., to please stand.

69Mr B., for the reasons I have outlined:

a. in relation to Count #1 of the indictment, accusing you of criminal harassment, contrary to s.264(3) of the Criminal Code of Canada, I find you not guilty;

b. in relation to Count #2 of the indictment, accusing you of assault, contrary to section 266 of the Criminal Code of Canada, I find you guilty;

c. in relation to Count #3 of the indictment, accusing you of assault with a weapon, contrary to s.267(a) of the Criminal Code of Canada, I find you guilty;

d. in relation to Count #4 of the indictment, accusing you of sexual assault, contrary to section 271 of the Criminal Code of Canada, I find you guilty;

e. in relation to Count #5 of the indictment, accusing you of mischief, contrary to s.430(4) of the Criminal Code of Canada, I find you guilty; and

f. in relation to Count #6 of the indictment, accusing you of mischief, contrary to s.430(4) of the Criminal Code of Canada, I find you guilty.

70The electronic indictment will be endorsed accordingly.