CITATION: R.C. v. S.Y.S., 2026 ONSC 2799
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.C.
Plaintiff/Defendant by Counterclaim
– and –
S.Y.S.
Defendant/Plaintiff by Counterclaim
Justin Nasseri, Adriana Forest-Clarke, Alice Min (student-at-law) for the Plaintiff/Defendant by Counterclaim
Anna Matas, Lexie Misterski, for the Defendant/Plaintiff by Counterclaim
HEARD: January 23 – February 4, and March 13, 2026
corrected reasons for judgment
Mathen, J.
INTRODUCTION
1This trial involves a claim for malicious prosecution of assault and sexual assault, and a counterclaim for sexual assault and battery.
2The plaintiff/defendant by counterclaim is RC, a businessman. The defendant/plaintiff by counterclaim is SYS, a former small business owner who currently works in fashion retail. SYS’ identity is protected under a publication ban issued in a prior criminal matter. The ban was affirmed at the beginning of the trial. All of SYS’ information in this proceeding has been anonymized. As a precaution, I have initialized all witnesses except for the arresting officer and the proffered expert.
3RC and SYS started dating in 2016. In 2018, SYS moved into RC’s home. The couple broke up on March 2, 2019.
4On April 1, 2019, SYS made a police complaint against RC alleging:
a. An assault in the home’s garage on November 24, 2018;
b. An assault in the home on December 31, 2018;
c. A sexual assault in the home on March 17, 2019;
d. A sexual assault in the home on March 25, 2019; and
e. Several threats
5On or about April 1, 2019, York Regional Police charged RC with four counts of assault/sexual assault for the allegations in (a) through (d), above. YRP did not charge RC with uttering threats.
6RC denies the allegations. He says he never assaulted SYS, there was no sexual contact on March 17, 2019, and there was no sexual contact on March 25. He describes having consensual sex with SYS on March 27 – which does not match SYS’ claims. RC denies threatening SYS.
7On December 15, 2020, the Crown stayed the criminal charges against RC, unconditionally.
8Unless otherwise indicated, the following information is undisputed.
9Since 2017, RC has lived at his house (“the House”) in King City, Ontario. His business is in plastics extrusion. He is divorced, with two adult sons.
10SYS grew up in South Korea. She married in 1987 and had three children. SYS came to Canada in 1995 with her family. SYS testified that the marriage was abusive. The couple split up. SYS moved to Guelph, Ontario, in 1997. She met and married someone in 1999 with whom she had her youngest child, a son, J. SYS says her second husband was also abusive to her and treated her children unkindly. They divorced after several years. In 2010 or 2011, she married for the third time. That marriage, while not abusive, was brief – lasting one year. While in Guelph, SYS operated several small businesses and built a house.
11RC and SYS met online in April 2016. They decided to date exclusively by August of that year. Shortly afterwards, SYS moved to Toronto.
12In the fall of 2016, RC lived in a condo in Markham Ontario while waiting for the House to be built. SYS and her youngest child, J., rented a townhouse nearby.
13During their relationship, RC paid SYS to clean his condo. After SYS and J. moved into the House in September 2018, RC gave her a couple of thousand dollars a month for personal expenses.
14For some time after SYS moved in with RC, she did not work outside the home.
15In 2017, RC and SYS invested in a company called Carbon 14. That investment is discussed further in these reasons.
16In the fall of 2018, SYS went to South Korea to see family for several weeks. RC paid for the visit. RC says he was thrilled when SYS returned home. SYS says she thought something was “off”.
17The parties agree that they fought on November 24, 2018. They agree that RC called SYS a “cunt”. I address that fight, which is the basis for the first criminal charge, later in these reasons.
18The House had various post-construction problems that the parties found disruptive and frustrating.
19The second alleged incident was on December 19, 2018. RC’s two sons, their partners, and SYS’ son J. were all present for a holiday dinner. A fire erupted on the stove. Several people rushed to put it out and clean the resulting mess. The dinner commenced. Numerous photos appear to show RC and SYS happy and enjoying themselves. SYS says she was putting on an act. SYS says that RC was very angry with her and, at the end of the evening while they were alone downstairs, he “yanked” her hair back “almost giving her whiplash”, and said he wanted to “get rid” of her. RC says that that never happened.
20The couple broke up, RC says, on March 2, 2019. Text messages during this period show the parties were angry with each other. SYS, in particular, carried very negative feelings about having been called a “c--t”.
21SYS and J. continued to live in the House while she negotiated her exit from the relationship. SYS told RC she could not afford to move out. SYS also believed she should be reimbursed for her investment in Carbon 14.
22Over the next few weeks, the parties had many arguments, some of which were recorded and played back and/or transcribed for the court. At the same time, the parties were trying to find SYS accommodation. Their dynamic was up and down.
23SYS alleges that on March 17, 2019, RC raped her in the House’s family room. RC says that that never happened.
24SYS alleges that on March 25, 2019, RC raped her in their bedroom. RC says that that never happened. RC says that the parties had consensual sex on March 26th. SYS denies this.
25Throughout March, SYS was upset because RC continued to socialize with her friends. The parties argued about RC’s attendance at a ‘Boys’ Night’ for pool and beer. RC initially told SYS he would not attend but later changed his mind. During the event, RC was invited to a separate birthday party.
26When SYS discovered that RC had gone to the birthday party, she was livid.
27Late in the evening of March 31, 2019, SYS left the House and drove to a police station where she remained in her car all night. The following morning, she made a KGB statement.1 Just before her statement, she and RC were texting each other, continuing their disagreements from the preceding days and weeks.
28RC was charged on April 1, 2019. After the charges were stayed unconditionally, RC commenced a lawsuit against SYS on May 7, 2021. SYS counterclaimed on July 14, 2021.
29A month before this trial, SYS asked for leave to amend her pleadings to include her own claim of malicious prosecution against RC or, alternatively, to adjourn the trial. SYS says that RC falsely accused her of punching him. Koehnen J. rejected both requests. That civil claim is proceeding separately.
ISSUES AND BRIEF CONCLUSION
30Because of how the claim and counterclaim intersect, I consider SYS’ counterclaim first.
31The issues in this trial are:
a. Did RC commit assault and/or battery on SYS on:
i. November 24, 2018;
ii. December 19, 2018;
iii. March 17, 2019; and/or
iv. March 25, 2019?
b. Did SYS commit malicious prosecution?
c. What damages, if any, are owed?
32An ancillary issue concerns the admissibility of expert testimony.
33Briefly, I am not persuaded that RC committed any of the alleged assaults and/or batteries against SYS. RC has proved that SYS committed the tort of malicious prosecution. For that civil wrong, SYS owes RC damages and costs.
ANALYSIS
34My findings are contained in the following analysis.
Sexual assault
35This case raises sensitive issues concerning the proper treatment of evidence in allegations of sexual assault.
36Sexual assault has a troubling legal and social history. The court must be alert to the risk that, in proceedings over such claims, unfounded beliefs may taint the legal analysis: R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780. That risk goes to a key part of the fact-finding exercise: determining whether the complainant is credible.
37The court cannot shy away from assessing a complainant’s credibility, nor can it hesitate to conclude that they lack credibility if the facts support it. The court’s task is to ensure that credibility findings avoid discredited and unjustified assumptions about how truthful complainants behave: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 36.
Credibility
38Credibility is a primary vehicle for determining the truth of alleged facts. Assessing credibility is not an exact science: Konstan v. Berkovits, 2023 ONSC 497 (“Berkovits (ONSC)”), at para. 11, citing R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
39Traditional criteria used to assess witness evidence include witness demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.), at para. 46.
40Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of “the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact”: Berkovits (ONSC), at para. 9.
41Courts assess credibility based on the totality of the evidence, as well as common sense and reason: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 58. A judge may accept some, none, or all of a witness’ evidence, and can attach different weight to different parts. In civil cases where there is conflicting testimony, as long as the judge does not ignore evidence, “finding the evidence of one party credible may well be conclusive of the issue because that evidence is inconsistent with that of the other party”: McDougall, at para. 86. SYS argues that this is particularly apt in allegations of sexual and intimate partner violence, since such events most frequently take place without witnesses aside from the parties involved. I agree.
42Credibility differs from reliability. Credibility has to do with whether someone is honest, while reliability concerns whether their testimony is accurate: R. v. Sanichar, 2013 SCC 4, [2013] 1 S.C.R. 54, at para. 19. One may find a witness credible yet doubt their reliability. Conversely, a witness who is not credible may still offer reliable testimony.
Trial witnesses
43The trial featured the following witnesses:
a. RC
b. SYS
c. RC’s son, M.
d. SYS’ son, J.
e. The arresting officer, Saied Khorrami.
f. Retired Officer Shawn Elliott of the Toronto Police.
i. SYS
44SYS is an accomplished person. She studied piano and voice at a graduate level in Korea. She came to Canada, escaped several abusive relationships, and made a good life for her children.
45RC cites many inconsistencies in SYS’ various accounts of the alleged assaults and sexual assault. However, when assessing a claim of domestic violence or sexual assault, the court must consider that complainants may not tell their story perfectly: R v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 64-65, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. Therefore, for the most part, my assessment of SYS’ credibility does not rely on those inconsistencies.
46Nevertheless, SYS’ testimony raised numerous red flags which, taken together, mean that she is neither credible nor reliable. Below, I canvass a few of those flags.
47First, SYS exaggerates. For example, when discussing a choir she started in Korea, she said it became “the most famous choir in the country”. After she came to Canada, she owned several convenience stores, in Guelph. She said that one of those stores was “the most successful convenience store in the city.” SYS said that while operating several businesses and caring for up to four children, she also worked “up to twenty hours per week for a church and a music director on an entirely volunteer basis.” SYS provided no corroborating evidence for these claims. I find that SYS stretches the facts to make herself appear impressive and sympathetic. That is an understandable impulse. But it makes SYS a less reliable witness.
48Second, SYS’ testimony often strained belief:
a. SYS repeatedly said she could not remember what happened on certain critical dates, such as whether the parties broke up on March 2, 2019, as RC claims. SYS refused to confirm or deny that, on January 1, 2019, RC gave her three conditions for their relationship to continue. Her failure to give an answer appeared manufactured, not genuine.
b. The first alleged assault occurred on the evening of November 24, 2018, in the House’s adjoining garage. RC testified that he opened the garage door and stood there for some time. Because he had come directly from the House, he was not wearing a coat. RC said he was not cold because the weather was fairly mild. SYS, however, insisted that it was very cold, “almost like winter”. She did not accept the suggestion that the weather was much warmer than a winter night, and she challenged RC’s counsel to produce historical weather records. When counsel did, it turned out that the temperature had been around 5 or 6 degrees Celsius, with no wind. While one’s perception of temperature is subjective, in this instance, I find that SYS was not truthful.
c. SYS testified that on March 31, 2019, RC made a gesture indicating that he was going to kill her. SYS claims to have learned about such gestures when she studied Italian culture in opera school. RC testified and demonstrated that he gave SYS the Italian version of “the middle finger”. I prefer RC’s testimony. During cross-examination, SYS could not testify to any other Italian gestures she learned. At another point in her cross-examination, and somewhat oddly given her professed studies, SYS claimed to not know that Christmas is a significant holiday for Italians.
d. At trial, and for the first time, SYS testified that, just before she left the house on March 31, 2019, RC came up to her and said: “Get ready to die.” At the end of her testimony, I asked SYS to clarify her words. SYS confirmed that RC told her that, which she described as a “shocking moment”. Yet, she never mentioned it before trial. On this point, I do not find SYS credible at all.
49Third, a deeply troubling incident occurred during SYS’ cross-examination about the alleged sexual battery on March 17, 2019. Just as RS’s counsel was approaching a critical moment, SYS asked for a break. She claimed to have diarrhea. When court resumed, opposing counsel complained that SYS had taken materials into the bathroom. When I questioned her, SYS said she had wanted to look at certain dates in an agenda. I asked SYS to retrieve the materials. She looked surprised and furtive, asking “Why is that?”. As discussed further in these reasons, the materials were far more extensive than an agenda. They include dozens of pages of excerpts of a transcript from SYS’ evidence given in chief, with handwritten notes scattered throughout.
50The notes, which raised immediate concern, were entered into evidence. SYS’ counsel argues that SYS cannot be faulted for taking materials into the bathroom since the court never cautioned her not to. That argument is not persuasive. SYS was present during RC’s cross-examination over two days. She heard my repeated cautions to RC, including at the end of the first day, when I directed him not to discuss the case with anyone, and explained that when he returned to court, it should be as though there had been no break in his testimony. While I did not specifically mention materials, the meaning of the caution was plain.
51Even if her counsel has a point, SYS’ request for a break was deliberately misleading. If SYS had wanted an opportunity to refresh her memory, she could and should have asked for that directly. The materials then could have been shared with opposing counsel. In addition, SYS was not truthful when she told the court that she only brought her agenda into the bathroom. The entire incident reflects poorly on SYS’ credibility.
ii. RC
52I find RC credible and reliable.
53RC was calm and measured. He gave his testimony in a straightforward manner, which was not embellished or exaggerated. He was not combative. He became emotional on a few occasions when discussing his children, and the effect on him of being criminally charged.
54RC’s evidence was consistent both internally and externally. His testimony did not raise any red flags. It did not appear rehearsed. His testimony did not reveal enmity towards SYS. He spoke glowingly about her talents. RC seems to have genuine regard for SYS’ children.
55SYS argues that RC was not credible in his police interview, in March 2024, when RC wanted SYS charged with assault for events occurring on March 31, 2019. RC was asked whether he had seen SYS since those events. RC said he hadn’t. In fact, he and SYS were in family law mediation and examinations for discovery. At trial, RC explained that he thought the officer was asking whether he had seen SYS privately, as opposed to in the presence of lawyers. SYS says that response is not credible. I disagree. I find that, in response to a question of when he last saw SYS, RC assumed that being in the presence of lawyers does not count. RC was not untruthful, but imprecise.
56Therefore, where the parties’ testimony conflicts, I prefer RC’s evidence.
iii. RC’s son, M.
57M. spoke about the Christmas dinner on December 19, 2018. M. arrived at the House with his girlfriend sometime in the afternoon. He confirmed that there was a fire, but by the time he entered the kitchen, it had been put out. He understood the fire to have started when SYS was cooking dumplings. According to M., his father helped with the aftermath. M. said that the clean-up took “two to five minutes”, after which the dinner continued. M. described a pleasant and relaxed evening. He noticed nothing amiss between his father and SYS. M. says he helped clean up. He was the last one in the group to go upstairs at the end of the evening. He does not remember RC and SYS ever being alone downstairs. He testified that SYS’ son, J., was with everyone “90% of the time.”
58M. avoided admitting things that might make him appear unsympathetic. Under cross-examination, he acknowledged going to the House after RC was criminally charged and could not go himself. M. said it was his house, too. M. was reluctant to acknowledge that he had the locks changed. The evidence, however, is that he did. He denied that he wanted to make SYS’ life more difficult and refused to give her the new keys. M. said he wanted his house back.
59According to M., SYS would often drink on social outings. M. said that on RC’s 53rd birthday, RC and another person had to “carry SYS out of the house”, because she was “too drunk.”
60I appreciate that M. believes his father suffered unjustly at SYS’ hand. Naturally, M. feels loyal to RC. That loyalty suffused M.’s testimony, which means that the court must proceed with caution. While I do not think that M. was untruthful, per se, I find that he was not entirely candid. For example, M. was evasive when questioned about his activities at the house after RC’s arrest, including how he and others interacted with SYS and J. I find, further, that M.’s account of SYS being so drunk that she had to be carried out of an event is not reliable or, at the very least, is exaggerated. RC did not mention that event at all.
61Therefore, I do not place much weight on M.’s testimony.
iv. SYS’ son, J.
62Like M., J. spoke about the Christmas dinner on December 19, 2018. He deposed that, in the immediate aftermath of the fire, he heard RC say: “This is cursed”. Under cross-examination, J. could not recall whether RC might have said “this house is cursed” or that SYS herself was “cursed”. J. said that after the fire, RC “stomped around the kitchen…as if the fire was [SYS’] fault.” J. did not hear RC actually blame SYS for the fire. J. said the dinner itself was nice. He did not know whether the happy photos taken that night of RC and SYS were genuine. He noted, fairly, that “anyone can put on a smile”. J. did not remember when RC and SYS went to bed, nor did he remember staying downstairs with RC’s other children.
63J. spoke to an argument between RC and SYS on or about March 23, 2019. J. understood that RC was angry with SYS for talking to other people about RC’s finances. J. said that RC threatened to sue SYS.
64J. described being at home in bed, on April 22, 2019, when several members of RC’s family came into the home. He found this disconcerting.
65J. claimed to not recall that SYS had made a police complaint; that SYS told police that RC raped her; that RC was arrested and charged; that RC denied the charges. J. acknowledged that the entire situation was very stressful for him.
66I draw many of the same conclusions about J. as I do for M. J. believes his mother was wrongly treated, and he feels loyal to her. When asked about specific things that might make SYS look bad, J. claimed not to remember. The statement I find most reliable is J.’s account of an argument between SYS and RC on March 23, 2019. That was after an audio recording of it was played back to him.
67Therefore, I do not place much weight on J.’s testimony.
v. The charging officer
68The plaintiff called as a witness the arresting officer, Constable Saied Khorrami (K.).
69K. testified about the events surrounding SYS’ attendance at the police station.
70I find K. credible and reliable. I will discuss his testimony under the analysis of RC’s claim for malicious prosecution.
vi. The proffered expert, Shawn Elliott
71The plaintiffs called as an expert witness Shawn Elliott, a former police officer.
72Mr. Elliott prepared a report for RC, in response to the following questions:
a. As of April 2019, what were the protocols, standards, and/or procedures followed by Police Officers in Ontario when receiving a sexual assault and/or domestic assault?
b. As of April 2019, what was the standard of care applicable to Police Officers in Ontario when receiving a sexual assault and/or domestic sexual assault complaint?
73The parties disagree about whether I should admit Mr. Elliott’s testimony.
The Law
74Expert testimony is an exception to the general rule against admitting opinion evidence. Its admission depends on numerous threshold requirements, including the independence, impartiality and lack of bias of the expert. If a party establishes that an expert is unable to be independent, impartial or unbiased, the testimony is not admissible: Sidney N. Lederman, Michelle K. Fuerst, & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis Canada, 2022) at para. 12.40, citing White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.
75It is “impossible to delineate the full range of topics about which only experts may testify”: Sopinka, at para. 12.43.
76When determining whether expert/opinion evidence should be admitted, the following criteria must be met:
a. The evidence is relevant to some issues in the case;
b. The evidence is necessary to assist the trier of fact;
c. The evidence does not contravene an exclusionary rule; and
d. The witness is a properly qualified expert.
R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at p. 20
77A trial judge can exclude or limit evidence, even after an expert has been permitted to testify, on the basis of the expert’s qualifications and the content of their report: Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 54, at para. 70.
78The expert’s role is to guide the inferences to be drawn from proven facts where the nature of the subject matter is likely beyond the fact-finder’s knowledge or experience. The evidence must be necessary to the fact-finding process: Sopinka, at para. 12.40; R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, at p. 42.
79In other words, it is not enough that the expert evidence will be helpful. There must be a risk that, without the evidence, “access to important information will be lost”: D. Paciocco, Expert Evidence: Where Are We Now? Where Are We Going? (1998), at pp. 16-17, cited in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 57.
Application
80I decline to admit Mr. Elliott’s testimony for the purpose of determining whether SYS committed the tort of malicious prosecution.
81To begin, I accept that:
a. Mr. Elliott’s evidence about the charging policy is relevant to some issues.
b. Mr. Elliott’s evidence does not contravene an exclusionary rule.
c. Based on his C.V. and past experience, Mr. Elliott is a properly qualified expert. There is no basis to conclude that Mr. Elliott is incapable of forming his opinion independently, impartially or without bias.
82Nevertheless, with one exception, I am not persuaded that Mr. Elliott’s testimony is necessary.
83Mr. Elliott was asked to prepare an opinion with respect to two issues: “the protocols, standards, and/or procedures followed by Police Officers in Ontario when receiving a sexual assault and/or domestic assault”; and “the standard of care applicable to Police Officers in Ontario when receiving a sexual assault and/or domestic sexual assault complaint”.
84With regard to the second issue, nothing in this case touches on a duty of care. The charging officer is not a defendant, and neither party pleads negligence. Accordingly, that part of Mr. Elliott’s opinion is not necessary.
85With regard to protocols et cetera for officers dealing with sexual and/or domestic assault, RC submits:
a. Shawn Elliott’s testimony was offered to corroborate the application of a police mandatory charging policy to this case.
b. When the matter was scheduled for trial, RC was unsure whether the charging officer would be available to testify. “Out of an abundance of caution, [RC] adduced expert evidence on the issue of mandatory charging in this case and Officer Khorammi’s compliance with appropriate police policies and procedures.”
c. “While [RC] stands on the submission that Officer Khorammi’s evidence is sufficient to establish the first prong of the malicious prosecution test, the Court will nonetheless have to decide on the admissibility of Officer Elliott’s evidence as expert opinion.”
d. The Court does not need Mr. Elliott’s assistance to find that the mandatory charging policy applied. “[I]f Officer Khorrami were ultimately unavailable or if the Court rejected his evidence, there could be an evidentiary gap with respect to the initiation requirement. Constable Elliott was retained to fill this gap.”
e. “[K’s] evidence alone allows the Court to find that the mandatory charging policy applied, that he was required to charge RC because of it, and that he acted without discretion pursuant to the policy.”
f. “Constable Elliott’s evidence remains helpful, is entirely consistent with [K’s] evidence, and would be necessary if the Court were to reject [that] evidence or find that he may have been mistaken in his understanding or application of the policy.”
86As the above argument makes clear, RC thinks that this court should admit Mr. Elliott’s evidence because it is helpful. That is not a sufficient basis for admission. The court must require Mr. Elliott’s assistance to determine (a) how the charging officer decided to charge SYS and/or (b) the degree to which the mandatory charging policy played a role in that decision. The best evidence for (a) comes from the charging officer himself. With respect to (b), to the extent that the charging policy is relevant, it is available to the court for analysis.2 The court does not require an expert to read the policy and determine what, if any, relevance it has to SYS’ liability for malicious prosecution.
87Therefore I decline to admit Mr. Elliott’s testimony with respect to the charging officer’s analysis of SYS’ KGB statement and what the officer thought he had the discretion to do.
88My ruling has one exception. Mr. Elliott was the witness through which the parties adduced into evidence the mandatory charging policies. Given that both parties refer extensively to those policies, I find it appropriate to accept those documents as evidence.
Issue One: Did RC commit the tort of assault and/or battery on SYS?
The Law
89Although the terms “assault and battery” are often used interchangeably, they are not the same thing. As stated in Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, at para. 138:
… battery and assault are distinct concepts in tort law, both being examples of trespass to the person … a battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person, whereas a tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature[.]
90The tort of battery protects the right to personal autonomy. The tort of assault protects a person’s mental security and well-being.
91To establish battery, SYS must show that RC intentionally applied force or physical contact directly to her person: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at paras 8, 11-13, and 15.
92Sexual battery involves force or physical contact that is sexual in nature: PP v. DD, 2017 ONCA 180, 137 O.R. (3d) 138, at paras. 71-72.
93Once the plaintiff has established that there was a battery, and that they suffered an injury as a result, the defendant can try to establish a defence.
94For the tort of assault, the plaintiff must prove intentional conduct that created in the plaintiff an apprehension of imminent harm: Barker, at para. 170. The plaintiff need not show that the defendant had the actual ability to carry out harm, just that the apprehension of harm was reasonable.
95SYS argues that:
a. the incident on November 24, 2018, involved battery but no assault;
b. the incident on December 19, 2018, involved battery and assault;
c. the incident on March 17, 2019, involved sexual assault and sexual battery; and
d. the incident on March 25, 2019, involved sexual assault and sexual battery
96SYS bears the burden of proof for the above claims. To the extent that SYS establishes that a battery or sexual battery occurred, RC may try to establish a defence such as consent.
Application
November 24, 2018
97The parties do not dispute that:
a. They spent the evening of November 24, 2018 with RC’s son, P., and P.’s girlfriend. The four attended dinner at a Toronto steakhouse after which they went to a hockey game.
b. The group arrived back at the House at around 10:30 pm. P. and his girlfriend left shortly afterwards.
c. While sharing some wine, RC and SYS discussed whether to draw up a cohabitation agreement. They then talked about what they would do if they won the lottery. That led to an argument.
d. RC went to the adjoining garage to smoke. SYS came in and out of the garage several times. At some point, SYS fell down.
98RC testified that SYS seemed a bit “off” during dinner. He said SYS got angry about the lottery discussion after RC said he would share his winnings with his family. RC thought that SYS felt that she was worth less to RC than his family. She started verbally attacking his children. That enraged RC, who called SYS a “c--t”.
99RC testified that he just wanted to get away from SYS, so he went to the garage to smoke and cool off. However, SYS would not leave him alone. She repeatedly entered the garage to demand an apology. Eventually RC was standing at the garage door, which he opened, with his back to the room. SYS came up behind him and put her hand on his shoulder to turn him around to face her. RC said he was caught off guard. He described and demonstrated making a sudden upwards and backwards gesture with his arms to repel her touch. He said he saw SYS “fall on her bum” and immediately get up again.
100SYS said she was a bit irritated during the drive downtown because the others were smoking in the car. She says RC got mad first during the lottery discussion, accusing SYS of wanting him only for his money. She said she told RC his kids were “lucky” but insisted that she never insulted them.
101SYS described being shocked when RC used the slur. She said that, as an Asian woman, it is the worst possible thing to be called. She could not get it out of her mind. She kept going in and out of the garage because she needed to resolve things. SYS testified that RC was still “screaming obscenities” at her. She went up to him a few times. At one point he pushed her, but she did not fall. She approached him again, and he turned around, pushed her again, hard, and she fell to the floor. SYS testified that her fall injured her left shoulder and that it worsened over the next several months.
102I find RC’s account more credible than SYS’ account for the following reasons:
a. RC’s description of SYS being in a “mood” and slightly “off” is supported by SYS’ account of being irritated in the car.
b. RC gave extensive details about the evening, including a dinner at Harbour Sixty steakhouse, who had what to drink, the hockey game, the drive back to King City and how a casual conversation with SYS turned into a bad fight. I accept RC’s account that SYS drank more than a moderate amount of alcohol.
c. I accept RC’s account that SYS was uncomfortable with the idea of a cohabitation agreement. I am persuaded that SYS wanted to get married and was unsure about whether RC felt the same.
d. I find RC’s account of the lottery discussion more plausible. I accept that SYS gave an answer that she would give money to her children and split the rest with RC. In contrast, RC’s list was more extensive, beginning with his parents, moving to other family members, his own children, SYS’ children and then adding that the two of them would “have a fantastic life.”
e. I am satisfied that something in SYS snapped. Combined with her unease at the cohabitation discussions, her previous bad mood, and her alcohol consumption, SYS took RC’s innocuous response about the lottery winnings as a personal affront.
f. I am further satisfied that SYS said cruel things to RC. She insulted his children and called his son, who has a learning disability, “stupid”. Because SYS felt jealous and insecure that RC could provide things for his children she could not provide for her own, she wanted to hurt him.
g. RC’s testimony was composed and measured. When discussing SYS’ comments about his children, he broke down. I am persuaded that SYS said the things RC attributed to her, and that RC found them devastating.
h. RC uttered a misogynist slur against SYS.
i. I accept RC’s account of going to the garage to smoke and cool off. I accept that SYS would repeatedly approach him, demand an apology and then go back into the house.
j. I accept that: RC was caught unawares when SYS approached him from behind, he jerked, his arms swung backwards, and SYS lost her balance and fell down on her bottom.
k. I do not find that RC intentionally shoved SYS. Any force he applied to her was inadvertent.
l. I do not accept SYS’ testimony that she suffered a shoulder injury from her fall that night. In March 2019, SYS said that it was her cleaning of RC’s house that caused the shoulder injury. At trial, SYS admitted that she had pre-existing issues with her shoulder. SYS’ testimony about how she injured her left shoulder is inconsistent and unreliable.
m. RC was unshaken under cross-examination. He consistently rebutted the idea that he got “very angry” at SYS when she kept coming into the garage and laid his hands on her to spin her around and get her to leave. While RC was upset and frustrated, I do not accept SYS’ contention that he was in a rage the whole time. I find RC’s explanation that he instinctively “shrugged off” SYS to be more plausible than SYS’ claim that he intentionally got physical with her.
n. I do find that the scene was chaotic and extremely emotional. It is possible that SYS perceived that RC shoved her.
103To conclude, while SYS may have thought that RC intentionally pushed her, I am not persuaded on a balance of probabilities that he did. Therefore, RC did not commit battery on November 24, 2018, and this part of SYS’s counterclaim is dismissed.
December 19, 2018
104The next alleged incident happened during a Christmas dinner RC and SYS hosted for their children.
105Having reviewed all the evidence, I find that:
a. RC’s and SYS’ respective children were with them at the House on December 19, 2018.
b. In the late afternoon or early evening, SYS was in the kitchen making dumplings. She was heating oil on a gas range, and the oil caught fire.
c. RC was in the family room when he heard SYS’ screams. He ran into the kitchen and saw the fire. He removed the pan from the burner, which he turned off.
d. When RC ran into the kitchen, SYS was there with her son, J.
e. RC asked SYS and J. if they were alright. SYS says that RC was immediately angry, blaming her and not worried about her safety. I am not persuaded that this was the case. I prefer RC’s testimony that he was not angry at SYS.
f. RC then made a comment that he thought the house was “cursed”. There was a lot of argument at trial over that word. SYS testified that RC told her she was cursed. I do not accept that. Given RC’s other testimony, he was frustrated at many things that had gone wrong at the House since he moved in. Furthermore, the alleged comment does not comport with RC’s demeanour at trial. I find RC to be easygoing and somewhat unflappable. It is implausible that RC would have reacted in such a manner after coming into the kitchen and realizing that a frightening grease fire had broken out close to his partner and her son.
g. After the fire was dealt with, everyone had an enjoyable Christmas dinner.
h. I have reviewed the many photos taken that evening, which show the parties happily interacting with each other and with their children. I appreciate that victims of domestic abuse may be good at “putting on a brave face”. In her subsequent statement to police, SYS said she was doing just that. However, nothing in the evidence suggests that SYS was in an abusive relationship with RC. SYS does not make such an argument. Therefore, I am not persuaded that SYS was putting on a brave face. I find on a balance of probabilities that the photos represent SYS’ true feelings. I accept RC’s testimony that SYS has difficulty hiding her feelings. Based on all the evidence, and my observations of SYS during the trial, I am satisfied that if SYS had been as upset as she says she was, she could not have controlled those emotions, and the pictorial depiction of the evening would be different.
i. RC’s testimony was consistent that he was not angry with SYS about the fire and any damage it might have caused. I find RC’s statement that he generally does not get upset about material things credible. His account of the dinner is more plausible than SYS’.
j. I am not persuaded that, after everyone else had left the kitchen after the dinner, RC pulled SYS’ hair back hard enough to feel like “whiplash”, told her she was a “big mistake”, and said that he planned to “get rid of her”.
k. In her police statement, SYS stated that RC was generally “depressed and anxious” over the Christmas holidays. She suggested that that explained his foul mood and violent reaction to the fire. I prefer RC’s testimony on this point. RC explained that after his divorce, he did find Christmas difficult. I am persuaded that RC has long since gotten over that, that he “loves” Christmas and that he enjoys spending time with his children and family. I find that SYS tried to embellish her case with untrue statements. It is consistent with her general lack of credibility.
106In sum, I find that SYS’ account of this event is not truthful. I am not persuaded that RC committed battery or assault on December 19, 2018. I am not persuaded that RC applied any force to SYS on this occasion, or that he did anything to cause her reasonably to feel fear.
107SYS’ claim is dismissed.
Events Leading up to Next Incident
108The next alleged event occurred on March 17, 2019, which is when SYS says that RC raped her. Before turning to that day, I will review what was happening between the parties. That will give a sense of their dynamic entering into the final, highly volatile period of their relationship.
i. New Year’s Eve
109The parties have different stories about New Year’s Eve 2018. RC says the couple decided to have dinner in Yorkville, Toronto, before attending a party at the Royal Ontario Museum (ROM). He says that, at dinner, SYS expressed upset about an incident at his parents’ house a few days before. For some time, RC’s father had been working on a ‘filial family tree’. He showed it to guests at a holiday party. Because the tree tracks marriage, it has photos of RC’s former wife. As a result, people at the party talked about her. That hurt SYS. At the NYE dinner, SYS wanted RC to apologize. RC refused as he did not believe anyone had done anything wrong. RC became apprehensive when he saw what he called “the other SYS” emerge. RC feared SYS would make a scene. He tried to diffuse the situation, to no avail. When the couple arrived at ROM, SYS stood stock still in the middle of the dance floor. RC grew uncomfortable. RC decided he wanted to leave, and SYS told him to “go ahead”. He says when he returned to the dance floor to give SYS her coat-check ticket, she was dancing with a young man.
110RC returned home. At 1:28 am, SYS began texting him that she was heading home. She asked him for the garage code as she did not have her key. The text message thread shows that RC responded with the code.
111SYS said that the detailed family tree made her feel awkward. SYS found it insensitive that RC mentioned his ex-wife several times. It cast a pall over the NYE dinner and subsequent dance at ROM. SYS says she was in a lot of pain from her shoulder and could not dance. She says RC misunderstood that and suddenly wanted to leave early. SYS did not want to, and so the parties separated. SYS says that when she arrived home after RC did, she told him she wanted to move out.
112On January 1, 2019, RC says he awoke feeling very anxious about the relationship. He told SYS he wanted to break up. She became hysterical. The couple was due to fly to the Dominican Republic in a few days with some of their children. Accordingly, RC decided not to break up, as long as SYS satisfied three conditions. First, SYS should find work “she loved” – not because RC needed money but to add some balance to SYS’ life. Second, SYS must “never, never, ever” blow up at RC the way she had and never again insult his children. Third, SYS must seek therapy.
113RC said he told SYS that if she ever blew up at him again, he would not say a word but simply point upstairs as a sign for her to pack her bags.
114SYS says that while she had previously suggested that she move out, when she woke up on January 1st she reconsidered, in part due to the parties’ upcoming trip to the Dominican Republic. SYS says she contributed $3,000 to the trip, from her savings.
115I prefer RC’s account of NYE and following day:
a. SYS became very upset at the mention of RC’s ex-wife at RC’s parents’ house. She could not get over it.
b. I do not accept SYS’ account of the dance at ROM. SYS testified that she was in tremendous pain, yet she decided to stay at a dance after RC wanted to leave. SYS’ story does not hang together.
c. Nor am I persuaded that SYS mentioned wanting to move out. I am persuaded that RC considered breaking up with her. I find that SYS was desperate to prevent that.
d. I am not persuaded that SYS chipped in $3,000 to go to the Dominican Republic. I do not believe that RC would have asked her for this and, since SYS was not working, I do not find it credible that she contributed such a large amount in any event.
e. I accept that RC gave SYS three conditions for staying together.
ii. The next two months
116According to RC, the next two months were peaceful. The couple had a great time on their trip. He thought SYS was making a real effort in the relationship. SYS started looking for work, eventually obtaining a sales position at Holt Renfrew. SYS also made some inquiries about getting therapy but decided it would be better to wait until she had a benefits package.
117RC adduced many text message chains between the parties full of different ‘emojis’ denoting love and affection.
118SYS testified that life returned to normal, but she was not “comfortable”. She frequently cooked for RC’s sons and friends when they came over. She says both of her shoulders were “killing” her. SYS started looking for work. She worked for a short time at a store called the Wedding Shoppe and took in a single student for piano lessons.
iii. The parties break up
119RC says that he broke up with SYS on March 2, 2019. It was a Saturday, and they were having lunch at home. SYS asked RC to contribute to her daughter’s education and became upset when he declined. RC told SYS that her daughter had not approached him and might not even want his help. He asked why SYS could not use her own money. SYS said she needed those funds for her long-term security. The argument devolved to a point that, according to RC, SYS once again verbally attacked his children. SYS also brought up RC calling her a “c--t” on November 24, 2018. RC testified that that word was “like an umbilical cord to everything” – it was the apparent link to all of SYS’ distress.
120SYS testified she was very hurt that RC was unwilling to help her daughter. She says RC kept saying he had “no room”. She did not believe him. SYS says RC got very angry and told her: “You’re the stupidest woman you don’t understand what I’m saying.”
121Numerous emails and text messages were adduced after this date. I will address some of them below. SYS denies that the parties were having “big arguments” in the ensuing days. However, she acknowledges that she sent RC numerous messages with harsh sentiments.
122I accept RC’s account of the break-up on March 2nd. SYS was angry that RC would not assist her daughter. I find that SYS thought it ridiculous that RC would say he didn’t have room to help. RC drew a boundary because he was paying for everything in the relationship. He was unwilling to spend money on SYS’ adult children.
123I accept that SYS tried desperately to get RC to change his mind about breaking up with her. She sent him many dozens of texts accompanied by past photos. RC calls this “photobombing”.
iv. The parties discuss how SYS will move out
124After the break up, the parties began discussing how SYS and J. would move out of the House. The discussions tracked the ups and downs of the relationship in March. RC was willing to co-sign a rental application with SYS for a unit in Toronto. At some point, the parties discussed RC moving into the unit himself. I am satisfied that that was due to continuing issues in the House which required renovations. The prospect that the parties would continue to live together is consistent with how the parties interacted in March. RC testified that there were two versions of SYS. When SYS was not angry and reactive, the parties’ relationship was close to normal.
125The parties considered J.’s schooling in their plans. I find that RC did not want to unduly disrupt J.’s schedule. However, on March 23, 2019, RC told SYS by email that, while J. could stay in the House until his school year was over, SYS could not because RC could no longer live with her. J. did not want to live in the house without SYS.
126I am satisfied that the parties made a joint offer to lease a condo unit at a monthly rent of approximately $3,000. SYS required RC to act as a guarantor.
127The parties anticipated that SYS would move out by the end of April. However, during the parties’ last fight on March 31, 2019, RC told SYS to move out within the next couple of days.
128On Tuesday, April 9, 2019, RC’s lawyer wrote to the realtor to advise that RC no longer wished to be a party to any lease agreement, and the realtor should arrange for a new lease with SYS.
March 17, 2019
129SYS alleges that sometime in mid-March 2019, RC raped her in the family room.
130SYS is not consistent about when the rape occurred:
a. In her KGB statement, SYS could not give an exact date, stating that it was a “blur”. Eventually she said the event occurred “about 17 or 18, around there” [sic].
b. In SYS’ Amended Statement of Defence and Counterclaim, she cites the date as March 17, 2019.
c. At discovery, SYS testified that the event could have been on the 15th, 17th, or 18th.
d. At trial, SYS was firm that the event occurred on March 17th. She acknowledged that she was previously unsure, but not anymore.
131SYS gave somewhat differing accounts of the incident itself:
a. In SYS’ pleadings, she says that on March 17, 2019, she and RC were sitting on the couch in the “TV room” and RC told her she looked “sexy”. She claims that she said “thank you” but when she tried to get up, RC grabbed her arm and forced himself on her. She said “no” and was sexually assaulted.
b. SYS gave a somewhat differing account of this incident in her KGB statement. She says RC made a comment about her nipple being “ready for him”. However, she also said that RC told her he missed her skin and hair (a comment she has also attributed to RC in her allegations about March 25th – discussed below).
c. At trial, SYS’ account included an email RC sent on her behalf to a real estate agent at 7:45 pm on March 17th (recall that the parties were cooperating to find a place for SYS and J. to live). SYS said that after this email was sent, she went to the basement sauna around 9 pm. She testified that she went upstairs and changed into a robe. When she came back down, RC called her from “the TV room”. She says she sat on the sofa, and RC moved towards her and told her she looked good in her robe. RC put his hand on her breast. SYS said, “This is not good idea. I don’t want it. This is a bad idea.” SYS testified that RC then said, “Your nipple is already ready for me” and that he proceeded to kiss her and sexually assault her. SYS then went to the shower downstairs and cried.
132During SYS’ cross-examination, she discussed the days of March 16th–18th. In her testimony, she acknowledged:
a. she sent RC twenty-six old photos of the two of them by text message between 8:35 and 10:51 am;
b. those photos were her trying to “bring up memories” which she found “heart-breaking”;
c. what she was doing was a “closing process” which I understand as ‘closure’;
d. the photos she was sending RC were ones he already would have had;
e. RC did not respond to or acknowledge the photos she sent on March 16th;
f. on March 17th, at 4:04 pm, she texted RC about some leftover food;
g. on March 18th, at 7:41 am, she texted RC asking: “Even if money workout how I’m going to get mortgage”. The parties then texted about someone named “Zabin”;
h. at 12:32 pm, SYS texted “Leave it”, because she wanted RC to drop the subject of the above person;
i. at 3:06 pm, she texted RC that she was at an appointment with a Korean doctor;
j. at 5:28 pm, she asked RC if he wanted to order sushi; and
k. the parties ate sushi together that evening.
133At that point in the cross-examination, SYS was asked: “At trial you alleged RC had sexually assaulted you on March 17th?”. She answered “Yes”. She was asked whether RC raped her in the Family Room (what SYS sometimes called “the TV room”) on the couch. SYS then asked for a bathroom break as described earlier in these reasons.
134I am not persuaded that RC raped SYS on March 17, 2019. To be clear, I give no weight to the fact that, on March 18th, SYS’ text messages to RC never mention the alleged sexual battery. Sexual assault complainants may not behave in ways that people think are ‘normal’. A complainant may continue to have what looks like ‘ordinary’ contact with their attacker. Making findings of credibility based on assumptions about the meaning of such contact risks straying into stereotype. The court cannot draw an adverse inference about SYS’ credibility, on that basis.
135I also place little to no weight on the differences between what SYS said happened in her KGB statement, and her testimony at trial (for example, whether RC told her she looked “sexy”). I find such inconsistencies largely inconsequential.
136Nevertheless, for the following reasons, I am not persuaded that RC raped SYS on March 17th:
a. SYS was deceitful at trial:
i. I have already found that, after realizing that she failed to mention that RC had raped her on March 17th, SYS engineered a break in her cross-examination. I am skeptical that SYS needed to use the bathroom. I find it likely that SYS wanted a chance to shore up her testimony. She wanted to refresh her memory about what she had previously said about the incident.
ii. SYS told me she brought only some agenda pages into the bathroom. That is untrue. The materials SYS took with her into the bathroom were: 8 pages from her evidence in chief for the trial, 6 pages from her transcribed KGB statement, 2 pages of text messages, another 19 pages from SYS’ evidence in chief, and 2 calendar pages for March and April 2019. Many of the pages contain handwritten notes that appear to cross-reference what SYS testified to at trial with other statements. For example, she annotates some statements as “Police” – which I take to mean refers to her KGB statement. Another example is the word “push”, circled, followed immediately by “all 3 statement mentioned [sic]” which I take to mean that SYS is noting that she consistently said that RC pushed her at some point. I am persuaded that SYS made those and other annotations to ensure that her account of events hung together.
iii. The above incident is damaging to SYS’ overall credibility as a witness. It is fatal to her testimony about the alleged incident of March 17th.
b. Given the context, I find that SYS’ inconsistency about the date of the assault is probative of whether the alleged event happened. I accept RC’s argument that SYS manufactured the March 17th assault in her KGB statement and has been struggling to keep her story straight ever since.
137In summary, SYS was not truthful about the events of March 17th. Further, SYS tried to deceive the court, and opposing counsel, by manufacturing an opportunity to review her notes about the allegation during her cross-examination. In contrast, RC’s account was plausible, and consistent with his overall account of the parties’ relationship, its breakdown and the aftermath.
138Therefore, SYS’ claim of sexual assault and sexual battery on March 17, 2019, is dismissed.
March 25, 2019
139SYS’ final allegation concerns the evening of March 25 and early morning of March 26, 2019. Again, SYS’ accounts of what happened vary:
a. SYS’ KGB statement is that she was in bed when RC came into the room. SYS described getting partially up on her knee and asking why he was there. She told him it was a “bad idea”, and she did not like it. RC “grabbed and twisted her arm”, “flipped her body”, and engaged in intercourse from behind. Afterwards, RC said he was “horny”.
b. In her Statement of Claim, SYS says she woke up to RC already positioned on top of her. She alleged that he forcibly opened her legs and had non-consensual sexual intercourse with her. SYS does not describe any conversation. She cried herself to sleep.
c. At discovery, SYS said she was almost or half asleep when she noticed RC standing near the bed. She said she partially got up and asked him what he was doing there, told him it was not a good idea and that he should leave. She alleged that RC said that “he missed her skin and smell” (a comment she attributed to RC in her KGB statement about the alleged incident on March 17th). SYS says RC twisted her arm, flipped her, and assaulted her from behind. She stated that RC did not say anything afterwards.
d. At trial, SYS gave a similar account to her discovery evidence. However, she added that afterwards, RC said he was “horny”.
e. SYS says she did not text RC on March 26th because she was so upset by the rape.
140RC insisted that the parties had no sexual contact on March 25th, which happened to be SYS’ first day at her new job with Holt Renfrew. RC says that night, the two worked together on rental applications and financial arrangements about SYS’ investment in Carbon 14. RC points to emails sent late into the evening as corroboration. He says that the parties’ interactions were cordial but not sexual.
141RC says the parties did not text during the day of March 26th because they were working. However, that night, the parties continued to collaborate on rental applications. The record contains a Confirmation of Co-operation and Representation Form that the parties digitally signed, respectively, between 10:15 and 10:20 pm. The parties applied to rent a property located at 304 Spadina Road, Toronto.
142According to RC, SYS was delighted about the potential move. The rental unit was in a beautiful area of the city, and it would accommodate her piano. That night, RC said, SYS appeared more relaxed than she had been in a long time. She went downstairs to use the sauna. When she came back to the main floor, she entered the Family Room wearing a robe. He says the parties shared a tender, sentimental moment, expressing sadness at what had happened between them. They cuddled and kissed on the sofa, then tidied up downstairs together. RC went outside to smoke. Around that time, he texted SYS asking whether the bedroom was cold and whether she wanted him to sleep with her. He received no answer, but, when he went upstairs, he noticed that the bedroom light was on. He approached SYS, who agreed that he could sleep with her. RC was clear that this did not necessarily mean the two would have sex. Rather, SYS sometimes liked RC to sleep in the same bed with her because she was cold. The two lay down together, back to front or ‘spooning’. He described a natural progression in intimacy leading to consensual sex early in the morning of March 27th.
143I prefer RC’s testimony for the following reasons:
a. RC’s account is more consistent with the corroborating evidence, such as the various emails and applications sent by the parties on March 25th and March 26th.
b. I do not place much, if any, weight on small variances in SYS’ account of the rape, such as whether she was awake or asleep when RC entered the room, or whether RC said anything. However, I do find it significant that in her accounts of the rape, SYS describes two different sexual acts, one where RC forcibly parted her legs and entered her from the front, and one where he flipped her over and entered her from behind. SYS did not explain the variance.
c. SYS was not truthful when she testified about a changed profile picture:
i. RC invites the court to consider that, on March 27th, SYS selected one of RC’s “all-time favourite” photos to be her new Facebook profile picture. The picture, showing SYS in a black dress, is striking and flattering. RC describes the photo as “the most important piece of documentary evidence from this time.”
ii. If RC means to suggest that, because SYS changed her profile picture on March 27, it is more likely that (a) SYS consented to have sex with him, or (b) RC did not rape SYS on March 25, I decline to draw that inference. SYS’ selection of a picture is not probative of either conclusion.
iii. However, SYS’ testimony about the event is not credible. In particular, SYS said she had no idea that photo was RC’s favourite. RC introduced a prior photo of (a) him holding up his phone (b) which displays that profile picture and (c) to which RC is pointing and beaming in happiness. Given my observations of the parties, I am persuaded that RC would have told SYS how much he loved that particular picture. I am persuaded, further, that SYS knew that it was RC’s favorite.
d. I am satisfied that, consistent with their fluctuating dynamic, RC and SYS had sex on the late evening of March 26-27 and not, as SYS insists, the late evening of March 25-26. I am not sure whether SYS got mixed up about the date of this encounter. But, in any event, SYS was not truthful about what happened. I am persuaded that any sexual contact was consensual.
e. I am satisfied that, in and around March 27th, SYS hoped that the parties might repair their relationship. That heightened SYS’ sense of betrayal when, a few days later, RC told her he was going out with her friends without her. As I explain in Issue Two, below, things spiraled over the last few days of March, culminating in SYS giving a KGB statement to police on April 1, 2019.
144SYS’ claim of sexual assault and sexual battery on March 25, 2019, and as a result, her counterclaim, are dismissed.
Issue Two: Did SYS commit the tort of malicious prosecution?
145I will now address whether SYS committed the tort of malicious prosecution.
146The parties do not dispute that the test for malicious prosecution requires RC to establish an affirmative answer to the following questions:
a. Did SYS initiate the proceedings?
b. Were the proceedings terminated in RC’s favour?
c. Did the prosecution lack reasonable and probable cause?
d. Did SYS act with malice or for a primary purpose other than carrying the law into effect?
Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-93; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 3.
147The tort of malicious prosecution, including the four-part test above, was developed in the context of lawsuits about prosecutions by the State or State actors. Subsequently, courts have recognized that the tort may be successfully advanced against a non-State actor.
Did SYS initiate the proceedings?
148I find that this is one of the rare cases where the complainant can be said to have ‘initiated’ a prosecution.
The Law
149Exceptionally, a complainant can be said to initiate a criminal prosecution. One way that can happen is where the facts “were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment”: Konstan v. Berkovits, 2024 ONCA 510, 172 O.R. (3d) 524 (“Berkovits (ONCA)”), at para. 32, citing Kefeli v. Centennial College of Applied Arts and Technology, 2002 45008 (Ont. C.A.), at para. 24; D’Addario v. Smith, 2018 ONCA 163, at paras. 24-25. This is known as the ‘virtually impossible’ standard.
150In McNeil v. Brewers Retail Inc., 2008 ONCA 405, 66 C.C.E.L. (3d) 238, at para. 50, the court held that initiation can also exist where a complainant (a) puts the police in possession of information which virtually compels an officer to lay an information; (b) deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or (c) withholds information in the knowledge of which the police would not prosecute.
151Regardless of which framework is used, it is accepted that the test for finding initiation is stringent. In particular:
a. It is not enough to show that the complainants’ statements to police were false.
b. The test is not ‘but for’. The question is not whether criminal charges would have been laid in the absence of the complainant’s report to the police. Rather, the question is whether, through knowingly supplying misinformation or withholding evidence, or through other wrongful conduct, the complainant compromised the police investigation and/or the independence of the police’s decision to lay charges: Berkovits (ONCA), at para. 37.
c. Even where there is evidence of the complainant deliberately giving false information, they will not be the initiator if the court concludes that the officer exercised their own discretion in deciding whether to lay a charge: D’Addario, at paras. 25-26; Bobel v. Humecka, 2021 ONSC 852, at para. 126-128.
152SYS argues that the decision to prosecute always rests with the charging officer unless the officer’s independence “has been displaced in the exceptional way required by the law.” I agree with that statement. Deciding whether displacement has occurred may be informed by numerous factors including:
a. The complainant must have desired and intended the prosecution;3
b. The complainant’s decision to lie or withhold information was made in order to procure a prosecution against the plaintiff;4
c. Any withheld information must be exculpatory;5
d. The complainant must have pressured the police in laying the charges or somehow compromised the independence of the prosecution;6 and
e. The police must have been unable to uncover the evidence controlled by the complainant.7
Application
153My analysis considers the following issues:
a. The charging officer’s decision to charge RC;
b. The relevance, if any, of Ontario’s mandatory charging policy in effect in April 2019; and
c. SYS’ role.
i. The charging officer’s decision to charge RC
154Officer K. testified that, on April 1, 2019, he arrived for his shift around 6 am. When he reported for duty, he was told that SYS had been waiting outside the station for about 6 hours. SYS had given a preliminary account which mentioned threats, assault, and sexual assault.
155K. was the ‘sexual investigation officer designate’ on duty. He explained to SYS that, if she wished, she could give a statement (which would be taken under the parameters established in KGB). He testified that SYS seemed to go back and forth about whether to give a statement. He observed her texting with someone.
156K. then testified about the transcript of the recorded KGB statement. He acknowledged giving SYS the required cautions, including that she must promise to tell the truth, and an explanation of the difference between a truth and a lie.
157K. testified that the following information, from his notes, created reasonable and probable grounds for incidents of assault and sexual assault:
a. Nov. 24, 2018: SYS stating that “when she went to the garage to confront [RC], he became agitated, physical, turned her around pushed her to the ground and she fell on the ground and landed on her left arm”.
b. Dec. 19, 2018: SYS stating that “[RC was angry about the fire] and kept on telling her that he wanted her out until eventually he walked up to her as she was still working by the stove, yanked her hair back to what she described felt like a whip lash and yelled in her face”.
c. March 17, 2019: SYS said that RC “forced himself onto her, by initially touching her breast area, making oral contact with them and then pushing himself on top of her. [SYS] advised that she told [RC] she did not want to have sex with him and tried to push him away but couldn’t overpower him. [RC] then had sex with her against [SYS’] consent.”
d. March 25-26, 2019: SYS said “she was naked in her bed and [RC] entered the room”. SYS confronted RC with the sexual assault the previous week “and he told her that ‘you liked it’. [SYS] advised she didn’t and she didn’t want to have sex with him but he twisted her arm, turned her body around, held her arm and head down with his hands and entered her.”
158K. said that SYS’ statements satisfied the elements of, respectively, assault and sexual assault as set out in the Criminal Code. He said that according to the policies and procedures in effect on April 1, 2019, he was required to lay charges.
159Under cross-examination, K. acknowledged that SRS’ original intake mentioned threats. He said that “about an hour into” SYS’ KGB statement, she said the following:
a. On December 19, 2018: “And then [RC] said I am planning to get rid of you”.
b. On March 30, 2019: “[RC said] you be careful I know guys killing people and then I will ship you to Korea without knowing anyone, with knowing anyone and then on your unconsciousness, unconsciousness.”
160K. did not charge RC with uttering threats. Asked why not, K. testified that SYS’ statements did not meet the definition of the offence in the Criminal Code, because they do not refer to a threat of serious bodily harm or death. He said that in his experience, ‘threats’ are more clearly expressed, for example, “I will kill you.”
161Under cross-examination, K. stated that he had no discretion about whether to charge RC with assault and sexual assault. K. relied on the 1994 policy, discussed in more detail below. Based on his understanding of that policy, K. testified, SYS’ statements had to be taken at “face value”. Those statements required that RC be arrested and changed.
162K. resisted any attempts to characterize his review of SYS’ KGB statement as having a true evaluative component. K. said that he would not evaluate a complainant’s credibility unless the complainant appeared intoxicated or otherwise incapacitated. K. said he did not “judge” a complainant’s statement but merely confirmed whether the statement contained sufficient facts to support that a criminal offence had been committed.
163The consistent theme of K.’s testimony is that he has no discretion when faced with allegations of intimate partner violence that on their face contain reasonable and probable grounds for assault or sexual assault.
164In response to questions from the court, K. confirmed that:
a. Where appropriate, he would apply his knowledge of how a criminal offence has been judicially interpreted to confirm that the elements of an offence are made out. He did not consider himself bound by the literal text in the Criminal Code.
b. If a complainant were to say something like “I was sexually assaulted”, without further details, he would try to elicit additional details to confirm whether the statement contained facts going to the elements of the offence.
ii. The relevance of Ontario’s mandatory charging policy
165The parties disagree over the extent to which the mandatory charging policy affects the analysis of initiation. RC argues that the charging policy removed much of the charging officer’s discretion. SYS argues that it did not.
166The arguments over the charging policy encompass three distinct but related questions. First, is the question of how Officer K. understood the policy and, in particular, whether he thought the policy altered or removed his discretion to lay charges. Second, is the question of whether, and to what degree it matters that, Officer K.’s understanding of the policy was correct. Third, and finally, is the question of whether, contrary to his testimony, I should find that Officer K. did exercise discretion over whether to charge RC.
167Turning to the first question, based on the evidence, I am satisfied that:
a. In 1994, the Ontario Government instituted a policing policy to ensure mandatory charging for cases of “wife assault”, where there were reasonable and probable grounds to do so.
b. In 1994, the Ontario Government also articulated a standard of care in such cases.
c. The rationale articulated in the 1994 policy includes:
i. “[t]o effectively combat the serious and prevalent problem of wife assault within our communities[.]”
ii. To provide appropriate intervention so that the cycle of violence is not “inevitably perpetuated.”
iii. To reduce “the incidence and severity of wife assault”.
d. The 1994 policy states that “Police shall lay charges in all incidents of wife assault where there are reasonable grounds to do so.” Included offences are assault and sexual assault.
e. The mandatory charging policy is found in the Toronto Police Service (TPS) policy, which was enacted in response to the government’s 1994 decision.
f. The parties were unable to locate a copy of the policy in use in York Region in April 2019. However, neither party disputed that YRP policy would have been the same as TPS.
168I find that Officer K. believed that the charging policy did affect his discretion and, in light of SYS’ allegations of assault and sexual assault, virtually removed it.
169Officer K. testified that: “[W]hen it comes to a domestic related or intimate partner related offence, criminal offence, we shall lay a charge. We don’t have a discretion in this.” When asked whether he exercised ‘judgment’ in charging RC, Officer K. answered “No”.
170I find that Officer K. sincerely believed that he did not have discretion about whether to charge RC with assault and sexual assault. That belief rested on Officer K.’s interpretation of the charging policy as it applied to what SYS told him. For ease of reference, I repeat the relevant portions of the officer’s notes:
a. Nov. 24, 2018: SYS stated that “when she went to the garage to confront [RC], he became agitated, physical turned her around pushed her to the ground and she fell on the ground and landed on her left arm”.
b. Dec. 19, 2018: SYS stated that “[RC was angry about the fire] and kept on telling her that he wanted her out until eventually he walked up to her as she was still working by the stove, yanked her hair back to what she described felt like a whiplash and yelled in her face”.
c. March 17, 2019: SYS stated that RC “forced himself onto her, by initially touching her breast area, making oral contact with them and then pushing himself on top of her. [SYS] advised that she told [RC] she did not want to have sex with him and tried to push him away but couldn’t overpower him. [RC] then had sex with her against [SYS’] consent.
d. March 25-26, 2019: SYS stated “she was naked in her bed and [RC] entered her the room. SYS confronted RC with the sexual assault the previous week “and he told her that ‘you liked it”. [SYS] advised she didn’t and she didn’t want to have sex with him but he twisted her arm, turned her body around, held her arm and head down with his hands and entered her.”
171I find that Officer K. interpreted the mandatory policy to ‘kick in’ if a complainant made allegations like SYS did: specific descriptions of assault and/or sexual assault by their partner.
172Officer K. acknowledged that he did not charge RC with uttering threats, even though SYS said that RC threatened her. That fact could suggest that Officer K. actually thought he had discretion. However, I accept K.’s testimony that he did not believe that the charging policy applied to those allegations because they lacked the particulars required to make out reasonable and probable grounds. Therefore, as it relates to Officer K.’s understanding of the charging policy, I do not find that his decision in relation to the alleged threats affects what he described as his understanding of the policy. I will return to SYS’ allegations of threats under the third question, below.
173The second question is whether Officer K. correctly interpreted the charging policy. The parties argue about what the policy means. SYS cites academic literature that suggests that such policies do not remove police discretion.8 As discussed earlier in these reasons, RC sought to introduce expert testimony about how the mandatory charging policy affects officers such as K. – that is, to support the idea that the policy actually removes officers’ discretion.
174Because the second question risks straying outside the proper scope of the trial, it must be approached with caution. None of the pleadings allege that Officer K. failed to comply with his duties as a police officer. Neither party seeks a declaration of the proper interpretation of the charging policy. The court must not delve into legal issues that are not before it.
175The broader policy concern that undergirds this second question is that mandatory charging polices may work an adverse impact on the very group they are designed to protect: victims of domestic abuse and sexual assault. If the policies mean that police officers no longer exercise any discretion to lay charges, complainants may be more vulnerable to claims of malicious prosecution if the charges are later withdrawn, stayed, or not proved beyond a reasonable doubt. Arguably, such a result is inconsistent with the very goal of the policies, which is to ensure that the justice system is more responsive to assault and sexual assault occurring between intimate partners.
176If there is a tension between mandatory charging policies and the test for malicious prosecution, that may benefit from appellate guidance. I would observe that the current framework for malicious prosecution is stringent enough that, if properly applied, the broader concern can be mitigated. For example, if there is evidence that a police officer deliberately misread the policy, or applied it in bad faith, that could affect whether the allegations truly compromised the possibility of an independent investigation. In this case, there is no such evidence.
177The third question is whether Officer K. actually exercised discretion in how he dealt with SYS’ allegations, notwithstanding that he says that he did not.
178SYS points out that Officer K. did not charge RC with uttering threats even though SYS alleged that RC did threaten her. Officer K. testified that SYS’ KGB statement did not meet the legal definition of utter threats. SYS argues that it is not possible to parse Officer K.’s decision-making in that way, that is, by separating SYS’ statements about assault/sexual assault from her statements about threats. Therefore, to the extent that Officer K. treated the allegations inconsistently, he did exercise discretion and, therefore, SYS cannot be the initiator.
179While there is some force to SYS’ argument, I do not find that Officer K.’s treatment of the threat charges undermines his testimony about the assault and sexual assault charges. Officer K. acknowledged that, in order to lay a charge, he must be persuaded that there are reasonable and probable grounds for it. Indeed, the charging policy makes that clear. Officer K. insisted that, where the complainant’s words suggest reasonable and probable grounds for offences contained within the policy, he does not have discretion to go behind those words and reach a different conclusion.
180The third question is not about whether the court finds that SYS’ words contained reasonable and probable grounds for the offence of uttering threats. The question is whether it is plausible that K. did not, while also claiming that he had no discretion with regard to SYS’ complaints of assault/sexual assault.
181With respect to the alleged threats, Officer K. focused on what, precisely, SYS says that RC said to her. Since the offence of uttering threats is about expression, that focus is to be expected. Officer K. acknowledged that, in the intake call to police, SYS referred to a threat to ‘kill’. However, in her KGB statement SYS did not repeat that phrase. Officer K. said that he was looking for words that evinced an intention by RC to commit physical harm. To him, the words SYS used to describe what she called “threats” did not show that.
182SYS argues that a mandatory charging policy does not turn police officers into “automatons”. I agree. The officer must evaluate whether the complainant’s words provide reasonable and probable grounds. If the officer thinks those words do not, the officer is not required to charge someone anyway. That is the decision Officer K. reached about SYS’ threat allegations. I am not persuaded that that decision means that K. exercised discretion with respect to everything SYS told him. Officer K.’s testimony is supported by the specificity with which SYS described RC’s alleged assaults and sexual assaults.
183Therefore, I accept as credible Officer K.’s testimony that he did not believe that the mandatory charging policy applied to the alleged threats, because SYS’ statement did not describe criminally threatening words. That reasoning does not undermine Officer K.’s testimony that he exercised no discretion about whether to charge RC with assault and/or sexual assault.
iii. SYS’ role
184Previous appellate case law has set out the following factors as relevant to whether a complainant can be said to have initiated a prosecution:
a. The complainant must have desired and intended the prosecution;
b. The complainant’s decision to lie or withhold information was to procure a prosecution against the plaintiff;
c. Any withheld information must be exculpatory;
d. The complainant must have pressured the police in laying the charges or somehow compromised the independence of the prosecution; and
e. The police must have been unable to uncover the evidence controlled by the complainant because, among other things, the evidence is peculiarly within the knowledge of the complainant alone.
185I was not directed to any cases requiring that all of the above factors be met. The assessment of initiation is case- and context-specific. In this case, determining SYS’ role involves the following questions:
a. Did SYS desire and intend for RC to be prosecuted?
b. Did SYS lie for the purpose of procuring a prosecution?
c. Were the facts underlying the charges peculiarly within SYS’ knowledge?
186I find that all of the above questions must be answered “yes”.
187SYS argued that she did not want or intend for RC to be prosecuted. Rather she sought protection from him. That argument is not credible. As I have explained, SYS was not truthful about what happened on December 19, 2018; March 17, 2019; or March 25, 2019. SYS may have believed that RC intentionally pushed her on November 24, 2018. But, given the many months between that incident and April 1, 2019, I am satisfied that SYS did not make her KGB statement out of fear of RC. The only possible conclusion is that SYS desired and intended that RC be charged.
188With respect to lying to procure a prosecution, I have found that SYS’ allegations of battery on December 19, 2018, and sexual battery and sexual assault in March, 2019, are not true. In light of that, I am satisfied that SYS was not truthful in her KGB statement. This is not a case where a complainant could have made a mistake about what occurred. For example, it is not possible that the parties had sex on March 17 or March 25, but there was a misunderstanding about consent. I am not persuaded that the events described by SYS actually occurred. Since I have already found that SYS did not fear RC, I am satisfied that SYS made false allegations in her KGB statement, for the purpose of procuring charges, and, ultimately, a prosecution against RC.
189Finally, the facts supporting the allegations were peculiarly within SYS’ knowledge. The alleged events occurred in private, at the couple’s then home. RC was the only other person privy to the events. It was not possible for police to investigate the allegations and make an independent determination about whether to lay charges.
190The trial judge in D’Addario (ONSC) makes a similar point, albeit in a different context. There, the trial judge concluded that, because the charging officer had exercised discretion, the complainant was not the initiator. In explaining that reasoning, the trial judge noted that the case did not involve “the type of complaint (e.g., domestic assault or sexual assault on a minor) that results in a mandatory charge.”: at para. 33.
191Therefore, RC has established that SYS was the initiator.
Did the criminal proceedings terminate in RC’s favour?
The Law
192The second prong for malicious prosecution is that the criminal proceedings must terminate in the plaintiff’s favour. In Miazga, the Supreme Court of Canada held that this prong may be satisfied “no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay.”: at para. 54; see also Adamson v. Ontario (Attorney General), 2014 ONSC 3787, 16 C.C.E.L. (4th) 67, at para. 66; and Romanic v. Michael Johnson, 2012 ONSC 3449 at paras. 11, 34, aff’d 2013 ONCA 23.
Application
193On December 15, 2020, RC received an unconditional stay on all criminal charges.
194In her written closing submissions, SYS queried whether RC’s stay was for reasons unconnected to merit, such as delay. However, in oral argument, her counsel appeared to resile from this point. I was not provided with any caselaw contrary to Miazga.
195Therefore, RC has established this prong of the test.
Did the prosecution lack reasonable and probable cause?
The Law
196RC must prove there was no reasonable and probable cause for initiating the prosecution. Since the claim is against a private individual, the court must be satisfied that SYS did not believe that there were reasonable and probable grounds for RC to be charged: Miazga, at para. 72; Drainville v. Vilchez, 2014 ONSC 4060, at paras. 14-15.
197RC argues that SYS lacked subjective belief for all of the charges she made against him. SYS argues that the question need not be reached because she did not initiate the prosecution. In the alternative, SYS says that all of the charges had reasonable and probable grounds. Her allegations were credible, she genuinely feared for her life, and she acted to protect herself.
Application
198Based on my dismissal of SYS’ counterclaim, SYS did not have a subjective belief in reasonable and probable grounds for any of the charges except the alleged assault on November 24, 2018.
199While I do not accept that RC pushed SYS on November 24, 2018, SYS honestly could have believed that he did. Therefore, I am not persuaded that, when SYS gave her KGB statement, she lacked a subjective belief in reasonable and probable grounds for that incident. As a result, RC cannot make out the tort of malicious prosecution in respect of the alleged assault on November 24, 2018.
200However, RC has made out the third prong of the test with respect to the other charges. I have already found that SYS has not established that those events occurred. RC did not pull SYS’ hair and threaten her on December 19, 2018. RC did not rape or threaten SYS on March 17 or on March 25, 2019.
201SYS’ accounts of the above three events are not credible. Based on my overall assessment of SYS as a witness, and my rejection of various aspects of her narrative, I am satisfied that at the time SYS made her KGB statement, she knew that those allegations were false. I do not think that SYS feared RC and I do not think that she ever thought that RC had threatened her. I am satisfied that SYS did not believe there were reasonable and probable grounds for her allegations with respect to December 19, 2018, March 17, 2019, and March 25, 2019.
Did SYS act with malice or for a primary purpose other than carrying the law into effect?
The Law
202Where parties involved in an alleged malicious prosecution are known to each other, the lack of reasonable and probable grounds for the claim tends to imply an improper motive for the person who makes the allegation. As the Supreme Court of Canada put it: “Why else would a private person initiate a prosecution based entirely on facts not believed to be true, or worse still, known to be false?”: Miazga, at para. 87.
203Following the oral submissions, I asked the parties whether malice must be the complainant’s “dominant motivation”. They confirmed that is not necessary. Malice is but one way that the court can find the requisite state of mind to make out the tort.
204The court need not identify a precise motive in order to infer malice or improper motive: Sethi v. Kaur, 2025 ONSC 5760, 21 R.F.L. (9th) 133, at para. 177, citing Chatha v. Uppal, 2018 BCSC 6, at para. 470.
205The caselaw states that malice or improper motive can be inferred from a lack of reasonable and probable grounds. Nevertheless, this final prong for the tort must be considered in its own right and not merged with the other parts of the test. Among other things, I find that important in light of the broader policy concerns, discussed earlier, about the circumstances in which sexual assault complainants may be found civilly liable for their complaints.
206RC argues that, while he need not prove an improper motive, the evidence shows that SYS had two. First, she wanted revenge on RC for socializing with her friends on March 30, 2019. Second, she wanted RC to pay her money.
207SYS argues that she acted without malice or any improper purpose. She went to the police because she feared RC and sought protection from him.
208SYS argues that the court must ensure that the analysis of her motives not veer into myths and stereotypes about sexual assault complainants. In particular, the communications between the parties, in the period just before SYS made her KGB statement, must be scrutinized with care to ensure they are not interpreted through a false lens of how a truthful complainant ought to behave. I agree.
Application
209There is no evidence to support SYS’ claim that she feared RC. I am not persuaded that RC ever threatened SYS, or that SYS believed that he did. While it is true that RC warned SYS that he might sue her because she had made false statements about his finances to other people, that is not enough to create in SYS an honest or a reasonable belief that she required police intervention.
210As discussed below, RC and SYS fought all day and all night on March 31, 2019. They exchanged vitriolic texts until 12:08 AM on April 1st. RC says he heard SYS leave the house through the laundry room. He texted her to stay out and not come back.
i. SYS’ anger at RC for ‘stealing’ her friends
211RC says that SYS pressed charges against him, in part, because she believed he was taking her friends away. The trial features a lot of discussion about that issue.
212Throughout the proceedings, SYS emphasized how much her friends meant to her. Given her difficult marital history, the connections SYS made in Toronto after her final divorce became a treasured support network for her. SYS testified that her friends were as important to her as RC’s business was to him.
213RC got to know those friends while he and SYS were a couple.
214Sometime around March 19, 2019, SYS discovered that RC was invited to a ‘Boys’ Night’ on March 30th. SYS reacted badly to this news. She told RC that when people break up, they leave each other’s friends alone. In her testimony, SYS reiterated that position several times.
215RC told SYS he would not go anywhere he was not wanted. On March 21, 2019, he texted SYS that he was unlikely to receive many such invitations but that if he did, they could discuss it. SYS thought RC would let her friends know that she didn’t want them to socialize with RC. She was upset by that, too, as she thought it would make her look bad.
216At some point RC told SYS he would not attend Boys’ Night. But, by March 29th, RC changed his mind. He notified SYS of that by text. RC did say he would not go to a later, private event. He ended the message with: “We’ve had a few days of peace so let’s continue that.”
217SYS was upset. She sarcastically texted RC that it was “great” and “amazing” that her friends had invited RC to an event after knowing she and he had broken up. She texted “STAY AWAY” and, in response to his protests that it was too late to bail out, suggested that he pretend to be sick. She wrote: “I’m having extremely hard time for just being my heart emptied out and have to move on to next step is terrible hard. I don’t need this in top of it [sic].”
218The parties continued texting on March 29th and into the next day. SYS became angrier and more emotional, calling RC “disgusting”, “greedy” and warning him to “be careful”.
219At trial, SYS repeatedly stated how wrong it was that RC continued to hang out with her friends. She testified that she was losing her relationship with him, what she called her first “heart love”; losing a home she had built together with him; and losing financial support. She called RC’s actions “cruel”.
220RC attended Boys’ Night. He then made the perhaps ill-advised decision to tag along to a separate birthday party for another of SYS’ friends – a woman. It appears that SYS had not been invited.
221SYS found out the next day (March 31st) leading to an extremely bad fight. RC described SYS as going on a “full out attack”. SYS repeatedly told RC that she heard from someone that he had “fingered” several women. RC says that SYS told RC she would accuse him of “fucking girls and bringing them to my business and she’s going to crack into my business.”
222The transcript and audio evidence about the parties’ fight show that SYS was in a rage. For ease of reference, I reproduce portions of a chart that RC compiled of the interactions on March 31. For conciseness, I have omitted some of the descriptions which I consider repetitive or unnecessary. I have also left out RC’s allegation that SYS punched him.
| CASE CENTRE REFERENCE | DESCRIPTION OF EVIDENCE | NOTES |
|---|---|---|
| Exh. 1: Tab 26 of the JBD, Vol. 1, Mar/Apr Text Messages (A1122) |
SYS texts RC at 10:17 | SYS says that her girls were all over RC the night before. “You already went other in same night and screwed around?” |
| Exh. 1: Tab 59 of the JBD, Vol. 2, Transcript of Audio Recording (A1510-A1536) |
March 31, 2019, at 11:31 am Transcript of SYS confronting RC in his family room at his House |
SYS alleges that RC fucked around with her girlfriends repeatedly. She accuses RC of carrying on with her friends, calling him disgusting, and saying “You want to see my vagina too? Here, here.” When RC said “I love your vagina” she said “So put your fucking dick in there… And I will let your fucking – your friend’s dick in my vagina.” (A1515) She warns RC not to be upset with how she “react from now” (A1519) She calls RC ugly, the fucking devil, and disgusting garbage (A1526) She suggests that RC penetrated her friends with his fingers the night before (A1530) |
| Exh. 1: Tab 59 of the JBD, Vol. 2, Transcript of Audio Recording (A1455-A1473) |
March 31, 2019, at 11:48 am Transcript of SYS confronting RC in his family room at his House |
She calls RC the empire of all devil dark (A1458) and suggests he carried on sexually with her friends (A1459) Describing him as “sticking your finger up her anus.” She says RC will be dead at 64 (A1460). She threatens RC and his “kids and grandchild”, saying “I’m not fucking joking” (A1470) |
| Exh. 1: Tab 55 of the JBD, Vol. 2, Transcript of Audio Recording (A1474-A1490) |
March 31, 2019, at 12:00 pm Transcript of SYS confronting RC in his family room at his House |
SYS threatens to crack into RC’s business, bring girls to his business and “accuse you for fucking office”. |
| Exh. 1: Tab 56 of the JBD, Vol. 2, Transcript of Audio Recording (A1491-A1501) |
March 31, 2019, at 12:18 pm Transcript of SYS confronting RC in his family room at his House |
SYS insults RC, calling him fat. She continues to berate him and for the first time, says “I’ll call police too” as she knew that RC had contacted the police about recording their conversations. She says for the first time “You then – for rape for us…and you pushed me. I told you keep peace with me.” (A1497) When RC insists she speaks to her friends, she says “That friend’s shit. I don’t fucking care friend shit. You – I’m gonna harm you big time…. But you gonna pay, you are the one pay a lot.” (A1499) |
| Exh. 1: Tab 26 of the JBD, Vol. 1, Mar/Apr Text Messages (A1125) |
SYS and RC texting on March 31 around 12:44 pm | SYS calls RC a double dirty man, saying that he “already fuck around with my girls.” |
| Exh. 1: Tab 26 of the JBD, Vol. 1, Mar/Apr Text Messages (A1132) |
SYS and RC texting on March 31 around 1:26 pm | SYS insults RC, saying he has a “big fat belly and small dick”, and accusing him of doing things “last night with my girls with your fat fingers.” |
| Exh. 1: Tab 57 of the JBD, Vol. 2, Transcript of Audio Recording (A1502-A1505) |
March 31, 2019, at 1:30 pm Transcript of SYS confronting RC in his family room at his House |
SYS suggests she is going to have sex with RC’s friend M. (A1504) |
| Exh. 1: Tab 58 of the JBD, Vol. 2, Transcript of Audio Recording (A1506-A1509) |
March 31, 2019, at 1:33 pm Transcript of SYS confronting RC in his family room at his House |
SYS suggests she is going to have sex with RC’s father (A1508) |
| Exh. 1: Tab 26 of the JBD, Vol. 1, Mar/Apr Text Messages (A1148-A1158) |
SYS and RC texting on March 31 around 11:15 pm at night to 11:40 pm | SYS calls RC “disgusting”, “old dick”, “slut”, “stupid” “women user”, “fat”, “low education”, etc. At A1158, she says to RC “you better kill me if you do harm me until I get out. I’ll bring my friends to pack this week and get out. You arrange movers.” |
223SYS did not contest any of the above communications. She explained that the reference to “bringing girls to RC’s office” was a threat to create a public scene. She would get women to allege that RC had sexually assaulted them. SYS said the women would be topless to attract attention and media interest. At trial, SYS suggested that this was not a serious threat. I make no finding about whether it was. I do find that SYS wanted RC to believe she might do it.
224SYS also stated that while she repeatedly accused RC of “fingering” women at the birthday party, she did not mean he digitally penetrated them but that he was fondling him over their clothes. SYS’s testimony on this point is not believable. The term “fingering” is a specific one that SYS repeatedly lobbed at RC on March 31st. In the recording, SYS is too outraged for the accusation to have the more benign meaning she now seeks to put on it. SYS’ reaction is incompatible with the idea that she thought RC was only touching women over their clothes.
225I am persuaded that SYS was very, very angry at RC on March 31, 2019. Her anger burned all day. It was triggered by deep hurt and insecurity at RC’s attendance at a birthday party to which she was not invited. SYS felt betrayed by both RC and her friends.
ii. SYS’ frustration over financial issues
226RC says that SYS’ second motive for making false allegations about him was her frustration that RC was not giving her sufficient money to move out. According to him, after the parties broke up in March 2019, SYS became increasingly focused on securing continued or increased financial support.
227SYS contended that it was RC who sometimes pressured her for money. I reject the contention, which came up around the issue of SYS’ ownership of land in South Korea, and the parties’ investment in Carbon 14. I will discuss Carbon 14 below. I find that RC encouraged SYS to follow up on her possible ownership of land overseas because the couple was talking about financial matters, including a cohabitation agreement, and the question of SYS’ assets had come up. I am not persuaded that RC wanted to profit from the land itself.
228I find that SYS did make financial demands of RC, including just before her KGB statement.
####### a. Carbon 14
229Both parties invested $100,000 into a company called Carbon 14, for a total investment of $200,000. I am satisfied that the parties had equal ownership of the investment. Carbon 14 was one of several joint ventures the parties pursued during their relationship. The investment was made by the parties’ jointly owned holding company.
230SYS testified that she did not understand how Carbon 14 worked. She says that RC told her that she would receive revenue of $5,000 a month. I am not persuaded that RC said that. It is possible that SYS misunderstood the investment.
231The evidence suggests that, after the parties