ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
E.J.M.S.
H. Rim, for the Crown
J. Lopez, for the Accused
HEARD: January 12, 13 and 15, 2026
REASONS FOR JUDGMENT
REASONS FOR DECISION
CHOZIK J.
1The accused, E.J.M.S. (“M.S.”), was charged with sexually assaulting and forcibly confining T.F., contrary to sections 271 and 279(2) of the Criminal Code, R.S. C. 1985, c. C-46. He was also charged with two counts of failing to comply with the terms of his release and one count of criminally harassing T.F., contrary to sections 145(5)(a) and 264(1) of the Criminal Code.
2His trial proceeded before me on January 12, 13 and 15, 2026. On January 16, 2026, I acquitted M.S. of all the charges. In doing so, I delivered brief oral reasons for my decision. I indicated that written reasons would follow. These are those reasons.
OVERVIEW:
3M.S and T.F. were in an intimate relationship from February 2019 until the fall of 2021. M.S. moved in with T.F. in the fall of 2019. First, they lived in her rented apartment. Then, in 2020, she bought a condo and M.S. moved in with her and her 24-year-old son.
4T.F. alleged that on October 10, 2021 (Thanksgiving weekend), after they returned home from a party, M.S. had sexual intercourse with her without her consent. She alleged that he forcibly confined her by restricting her movements. She told two friends, one of whom is M.E., about what happened the next day. On November 14, 2021, T.F. broke up with M.S. and kicked him out of her condo. She broke up with him because she believed that he had been cheating on her. On November 18, 2021, T.F. went to the police and made a formal complaint about the alleged sexual assault and forcible confinement.
5M.S. was arrested on these and unrelated charges, which were later withdrawn. He was interviewed by Officer Matthew Cunnington of the Halton Regional Police Service at the Oakville detachment on November 19, 2021. The interview took place in the early morning hours between 2:18 am and 3:01 am, after M.S. was interviewed in respect of the unrelated charges. The interview was recorded on video and adduced for the truth of its content at this trial. The voluntariness of M.S.’s statement was conceded.
6M.S. was released on terms that included a prohibition on him contacting or communicating with T.F. directly or indirectly by any physical, electronic or other means. The release order also prohibited him from being within 50 meters of any place where he knows her to live, work, go to school, frequent or otherwise be.
7T.F. called the police on December 22, 2021 to report that M.S. had contacted her and her friend through social media. Specifically, she complained that he had been making “story” posts on Instagram about her. She showed the police the posts, which were songs with text written over top stating “I love you” or “I miss you”. She also showed the police an Instagram message M.S. had sent to her friend, which T.F. thought was directed to her. The police concluded that nothing indicated that these posts were about T.F. or directed to her. No charges were laid.
8On August 24, 2022, M.S. crossed paths with T.F. at a public beach area in Burlington. At around noon, she was leaving the beach to go to the parking lot. She walked from the beach on a path through some bushes. At the end of the path, she ran into M.S., who was going to the beach from the parking lot using the same path. When he saw her, M.S. said “go ahead” or “you can pass” or words to that effect. T.F. testified that she told him to leave her alone and that she would call the police. T.F. testified that she had gone to that beach with M.S. before. The beach was across the street from the hospital where she worked. However, on that day, she had changed her spot on the beach. Based on this interaction, M.S. was charged with the two counts of breaching the release order.
9T.F. also alleged that in July and August of 2022, she saw M.S. on seven occasions in various locations in Burlington, Etobicoke and Hamilton. She testified that at first, she thought it was just a coincidence that he was there. When she saw him at the beach on August 24, 2022, it was “obvious” that he was following her. She reported that incident, and the other times she had seen M.S., to the police. As a result, M.S. was charged with criminal harassment.
10On each of the charges, the burden is on the Crown to prove the essential elements of each offence beyond a reasonable doubt. The decision as to whether the Crown has discharged this burden turns on my assessment of the credibility and reliability of two key witnesses: T.F. and M.S., who testified in his own defence. I must also assess the credibility and reliability of M.E., who testified briefly, purportedly about T.F.’s “demeanour” the day after the alleged sexual assault.
11As the trier of fact, I am not obliged to accept or reject a witness’ evidence in its entirety. I can accept all, some or none of a witness’s testimony.
12In respect of the alleged sexual assault and forcible confinement, I was left with a reasonable doubt as to the essential elements of the offence. While I had concerns about the credibility and reliability of some aspects of M.S.’s evidence, I did not reject it. I also had significant concerns about T.F.’s credibility and reliability. I rejected M.E.’s evidence entirely. As a result, I was left with a reasonable doubt about the essential elements of these offences.
13I also found that the Crown failed to establish the essential elements of criminal harassment and the two counts of fail to comply beyond a reasonable doubt. Even if I had rejected M.S.’s evidence and accepted T.F.’s evidence, (i.e. putting the Crown’s case at its highest), the essential elements were not made out.
14Therefore, I found M.S. not guilty of the offences charged.
THE EVIDENCE:
Undisputed Facts:
15The following facts were not contentious at trial:
a. T.F. and M.S. met in February 2019. They dated for a bit, and then M.S. moved into T.F.’s rental apartment with her. In 2020, T.F. bought a condo in Burlington with her 24-year-old son. She could not qualify for a mortgage on her own. M.S. could not qualify for a mortgage either, so T.F.’s son purchased the condo with her and helped her pay the mortgage. M.S. moved into the condo with them.
b. T.F. broke up with M.S. on November 14, 2021 because she believed that he had cheated on her. She kicked M.S. out of the condo.
c. T.F. met M.S. at Latin dancing. They both engaged in this activity before and after their relationship. During the Covid-19 pandemic, they set up a social group for Latin dancing called Burlington Latin Nights. T.F. obtained the necessary permits for this group, while M.S. set up an Instagram account and would post photos and videos. Another person set up the Facebook page for it, but she did not share its password with M.S. After their breakup, T.F. wanted to get access to these social media accounts to continue the group but could not. She talked to the police about it.
d. T.F.’s background is Serbian. M.S. is from Peru. He came to Canada in 2001 and is a permanent resident. English is not a first language for either of them. During their relationship, they communicated in English.
e. M.S. testified with the assistance of a Spanish interpreter. He was interviewed by the police in English, without a Spanish interpreter.
f. T.F. worked as a medical device processing technician at a hospital. She studied for this in Canada and obtained certification in this field.
g. M.S. worked as a drywaller and handyman. The highest level of education he earned is high school, in Peru.
h. On the Saturday evening of Thanksgiving weekend in 2021, T.F. and M.S. went to a party at a mutual friend’s house. M.S. consumed alcohol at the party. T.F. did not drink. T.F. testified that M.S. was mixing different kinds of alcohol, and that he drank a lot. M.S. testified that he had two glasses of wine, one or two bottles of beer and six shots of tequila.
i. T.F. was hurt and upset at the party because she thought M.S. was (a) drinking too much and mixing alcohol, (b) he was flirting with two other women, and (c) he danced with the two other women too closely/passionately and she felt ignored.
j. After the party, T.F. drove the two of them home. There was little, if any, discussion in the car. She was upset.
k. They got home at around 1:00 am. They went into the master bedroom, and each changed into their pyjamas to get ready for bed.
l. They had sexual intercourse. It lasted 5 minutes. M.S. lay on top of T.F. on the bed during the intercourse and ejaculated in her vagina.
m. Afterwards, T.F. went into the master bathroom to urinate and clean herself up. M.S. went with her.
n. The next day, T.F. went out. One of the people she saw that day was M.E.
o. On November 14, 2021, T.F. broke up with M.S. and told him to leave her condo.
p. Later, T.F. was upset with M.S. because he had not returned some of her things, which were put in storage during the renovation of the condo earlier.
q. On November 18, 2021, T.F. reported the alleged sexual assault and forcible confinement to the police.
r. M.S. was arrested on November 18, 2021. He was interviewed by the police and released from custody on November 19, 2021.
T.F.’s Version of the Sexual Assault and Forcible Confinement:
16T.F. testified that after they got home from the party, they changed into their pyjamas in the master bedroom. As she was about to sit on the bed, M.S. came up to her and pushed her with his two hands in her chest area, causing her to sit down on the bed. He tried to kiss her, but she did not want to kiss him. He started saying things like: “Why don't you want to kiss me? You don't love me anymore? You don't want me anymore. You found someone else.” She told him: “No, I'm upset for what you did and that's why I don't want to kiss you.”
17T.F. testified that M.S. then grabbed her head and her neck with both his hands holding her “so tight” behind her neck that she could not move. T.F. testified that she could not turn her head. He then went on top of her. He was forcibly kissing her, pushing his tongue inside her mouth causing her to gag. Twice, she begged him to stop but he did not care. T.F. testified that M.S. just kept being aggressive and angry. She testified that he was “so angry”, and that he kept “talking and talking”. While talking, he did not stop “holding” T.F. the whole time. It was not clear from her evidence whether this happened while she was sitting on the edge of the bed or while she was lying down.
18T.F. testified that M.S. then tried to kiss her again. He pushed her down onto the bed onto her back, using his two hands on her chest again. He held her by the neck with both his hands. She demonstrated and described how he held her: his thumbs were behind her ears on the neck area, pressed into the back of her head. The four fingers on each of his hands were on the front part of her neck. T.F. testified that she “begged” M.S. to let her go. He said: “I don't care. I'm not letting you go.” He tried to force her to kiss him again, laying on top of her. He immobilized her and caused her neck to be in a great deal of pain.
19T.F. testified that M.S. was constantly talking “the whole time”, and that he held her for “a long time”. She testified that he talked to her for hours, about their relationship, while she wanted to go to sleep. He was forcefully trying to kiss her and talking. Then, he wanted to have sex with her. She testified that she could not move. She told M.S. that it hurt. She gagged because he was holding her so tight and forcing his tongue inside her mouth.
20T.F. testified that M.S. was “so loud”. She begged him to be quiet so as not to wake up her son, who was sleeping down the hall. But M.S. kept talking very loudly. She testified that she told him “no”, “so many times” in respect of the kissing.
21When M.S. said he wanted to have sex with her, T.F. told him that she did not want to have sex. M.S. then said: “Now you don't want me to touch you anymore. You want nothing to do with me.” He then pulled her pajamas and her underwear down to her knees. He pulled his underwear down and spread her legs a little with his legs. He then had sexual intercourse with her for five minutes. He ejaculated inside her. In cross-examination, T.F. testified that M.S. kept holding her head/neck with one hand while he pulled his and her bottoms down. She maintained that he lay on top of her while he did so, torso to torso.
22T.F. testified that after M.S. was finished, he remained on top of her, because he wanted to have sex again. She said: “No. Please let me go.” She told him that she wanted to go to the washroom, but he would not let her go. She asked him: “Why can’t I go now?” He then got off the bed and walked with her to the washroom. He stood in front of her, blocking her, while she was on the toilet. She testified that she felt she could not go anywhere because he was in her way. She was in the washroom for two or three minutes, to urinate.
23She estimated that they got home from the party at around 1:00 am. It was after 4:00 am when she got to go to sleep. The day after, she went out and saw two friends, one of whom was M.E. She told them what had happened.
24T.F. testified that her neck was sore for four days. She could not turn her head properly. It was painful and sore. She did not seek medical attention but took Advil. When she was interviewed by police and when she testified, T.F. did not mention any redness or markings on her neck.
M.S.’s Statement to the Police:
25When he was interviewed by Officer Cunnington, M.S. was confronted with the following version of the allegations:
Cunnington: Okay. So, so, she came to the police and she alleged, on October 10th, 2021, uh, you and her attended a Thanksgiving, uh, party together and returned to your residence on [location]; okay?
M.S.: (Nods head yes.)
Cunnington: Uh, “At approximately 1:00 a.m., the accused had been drinking but the victim was sober.” So, the accused is yourself, the victim would be [T.F.], just for the purposes of, of this, uh, what – this is called the synopsis here; just basically a brief out [sic] view of what’s been alleged; okay – or, sorry, a brief overview of what’s been alleged. Um [as read]:
The victim was getting ready for bed when the accused pushed her onto the bed, causing her to fall on her back. The accused then grabbed the victim’s head and neck with both hands and straddled her. The accused began forcefully and aggressively kissing her, despite her saying, “No.”
The accused continued to pull on the victim’s pyjamas, pulle[d] her underwear down, and penetrated her vagina with his penis and ejaculated inside of her about five minutes later. However, the accused remained on top of the victim, uh, until approximately 4:00 a.m.
Following the incident, the victim tried to use the bathroom, however the accused refused to let her go into the bathroom. After several pleads, the accused followed her to use the toilet. The victim disclosed this incident to two of her friends.
So, she’s alleging that, after the incident, you – so, basically the sexual assault is what she’s alleging is the forcible sex you had with her; right, penetrating her vagina with your penis and ejaculating in her. And then, the forcible confinement is pinning her, lying on top of her on the bed for several hours. That’s what she’s alleging.
26M.S. asked the officer to explain the forcible confinement further. The officer stated: “So, after you had sex with her, you straddled her, pinned her on the bed, and she was unable to move in this position for approximately three and a half hours. The victim disclosed that, the-, these two incidents to her friend. She stuffer-, suffers, uh, stiffness in her neck in the following days.”
27After these allegations were read to him, and he was reassured that this was what T.F. had said, the officer asked M.S. what he thought of it. M.S. responded, “I just [indiscernible] I’m surprised.” He then told the officer that he did not want to say anything because he might “say it wrong”.
28M.S. told the officer that the other night T.F. messaged him and said that if he did not give her a box of belongings he had kept, she would accuse him of all this. He told the officer that he is not saying that “everything” is true. He then explained that he remembered the Thanksgiving party, that he and T.F. had had a fight. He stated that T.F. had accused him of things. They had a discussion. He tried to calm her down. He told the officer he “just grabbed her” and tried to make her understand that he was not doing anything wrong with the other women. She said she did not want to listen and said that he was lying.
29The officer asked M.S. whether T.F. wanted to have sex with him when they had sex. M.S. responded: “We kinda stopped fighting; right? It was when we kinda, like, stopped fighting. And so, that’s why I said, like, I feel….” M.S. stated that they had calmed down, trying not to keep fighting. The officer asked again: “And she wanted to have sex with you too?”. M.S. responded: “What can I say, like, uh…” and then said “… we were okay. We were okay. Yes.”
30In his statement to the police, M.S. denied pushing T.F. down on the bed. He said they were on the bed, talking, going to bed. He denied having his hands on her neck or choking her. He said that he grabbed her head and asked her to please listen. He demonstrated how he grabbed her head by cupping his hands around his ears, with his thumbs and fingers behind his ears and the palms on his hands on his cheeks.
31He admitted kissing T.F. but denied doing it “aggressively”. He admitted that she said “no” to his kissing her at least one time, and so he stopped. M.S. admitted to the officer that he pulled T.F.’s pants down to have sex with her but maintained that it was after they had stopped fighting. M.S. denied that T.F. told him to stop when he was having sex with her. He denied laying on top of T.F. after they had sex. He told the officer they were lying on the bed, side to side, talking.
32The officer asked M.S. what gave him the impression that T.F. wanted to have sex. The following exchanges took place:
Cunnington: Did you get the impression whether she wanted to have sex?
M.S.: [Indiscernible] impression? No. [Indiscernible] just to….
Cunnington: Sorry, can you speak up?
M.S.: I, I thought it was, like, kind, something that, uh, you know, something that we both wanted at that moment, which I maybe….
Cunnington: So, what gave you the impression she wanted it?
M.S.: Because she wouldn’t let me do it; right? She wouldn’t let me do it, but we did have it.
Cunnington: She wouldn’t let you have sex?
M.S.: Yeah, [indiscernible].
Cunnington: What’s that mean?
M.S.: ‘Cause we had, we had sex. I didn’t force her [indiscernible] to, to do it. I didn’t grab her, her neck or [indiscernible], it was something, like, uh, you know….
Cunnington: Mm-hmm. So, I think you wanted to have sex, she didn’t; right?
M.S.: I wanted to be with her; right?
Cunnington: I know you did.
M.S.: Uh-huh.
Cunnington: You wanted to have sex. I don’t think she wanted to have sex that night; right?
M.S.: I cannot say. I cannot talk for her; right?
Cunnington: Well, what do you think? Do you think she was into it that night?
M.S.: She was – what, I’m sorry?
Cunnington: Do you think she was into having sex that night? Do you think she wanted it?
M.S.: That night, you say?
Cunnington: Yes, on Thanksgiving. That night you had a fight, you think she wanted to have sex with you?
M.S.: What can I say? It ju-, maybe she just allow to, to have it in that moment whether she want it or not, maybe, maybe she just allow to have it [redacted].
Cunnington: Right. So, you, you think she just went with it?
M.S.: Yeah, because after that we, we were okay.
Cunnington: But she’s mad.
M.S.: She, she was a little upset; okay?
Cunnington: Okay.
M.S.: Right.
Cunnington: But you’ve had the worst fight of your relationship, so she’s mad.
M.S.: Yeah, I, I told, I said, “You know, like – okay. [Indiscernible]….”
Cunnington: But….
M.S.: I, I should’ve maybe not forced or say or, like, wanted to have sex with her at the moment. Maybe she just allow to have sex with me; right?
Cunnington: Mm-hmm. And you just….
M.S.: Maybe she just allow because I told – I at least tried to understand, that’s why I kept trying to…
Cunnington: Mm-hmm.
M.S.: …understand me that I am not and I don’t want anything with the other, other, other women because what is, what is the point? Like, uh, and….
Cunnington: So, you just said to me you shouldn’t have forced her to have sex; right?
M.S.: In, like, the way, you know, if, if they say, were, were to be saying that, like, in saying, ‘Okay, this….’
Cunnington: Sorry, so you’re saying that she’s saying that or you’re saying that you shouldn’t have forced her to have sex? I, I just wanna clarify what you said there.
M.S.: No. No. I, I mean, I, I, I may have misunderstand the, the way…
Cunnington: Okay.
M.S.: …I explain myself, you know? I just – I shouldn’t say to, to, to her to be having intimacy; right? I shouldn’t go and try to have intimacy. I should’ve just lay and fall asleep.
Cunnington: I don’t care about the next morning. I wanna know what happened here.
M.S.: [Indiscernible.]
Cunnington: Did she wanna have sex with you; yes or no?
M.S.: I believe yes. I believe yes. Maybe, maybe she didn’t want to but let me do it.
Cunnington: Okay. What makes you think she maybe didn’t want to?
M.S.: Because what, of what she say; right?
Cunnington: Okay. That’s what she’s saying today, I’m talking about that night.
M.S.: Mm-hmm.
Cunnington: Did she wanna have sex with you that night?
M.S.: (No verbal response.)
Cunnington: …no doubt you wanted to have sex. I’m asking, did she wanna have sex?
M.S.: Hard to give you the answer. I – and that’s – it’s….
Cunnington: Well, yes or no? Did she want it; yes or no? Like, a guy knows whether the girl wants to have sex with him or not…
M.S.: Mm-hmm.
Cunnington: …right?
M.S.: I cannot give you an answer in that situation; right?
Cunnington: But that, to me, should be a “yes” or “no” answer. That’s pretty clear. So, because you’re not answering, I’m getting the feeling that she did not wanna have sex.
M.S.: But we were okay in that moment. We were okay. We were cool. We were not fighting. We were not fighting, we were just laying on the bed. We were laying on the bed.
33At one point, M.S. told the officer he was in shock, and did not want to talk about this.
M.S.’s Version of Events at Trial:
34At trial, M.S. testified that after they had changed into pyjamas, they lay side by side on the bed. He tried to talk to T.F., to calm her down. He told her that things were going to get better – he would be able to better support her financially. M.S. testified that T.F. appeared to calm down as they talked. He testified that he tried to kiss her on the cheek, as they were no longer arguing and things seemed to be getting better. At first, T.F. refused “a bit”, but little by little with her body language, she showed him that she understood what he was saying, that things would get better between them.
35M.S. testified that he tried to kiss T.F. again – he told her that he loved her and that he wanted to make things better. She looked at him and he tried to kiss her on the mouth. M.S. testified that T.F. was smiling.
36In cross-examination, M.S. testified that with her actions and movements, she made him understand that he could continue. When he felt T.F. was calmer, he started kissing her more often. Then he went on top of her and kissed her more passionately. She was looking at him in the eyes. He put his hands at the back of her neck, and tried to reassure her by telling her that he would do everything he could to improve things for them. He told her that he loved her, and that things would get better. He kissed her more continuously and he felt that she was kissing him back.
37M.S. testified that he then started touching T.F.’s breasts and buttocks. He testified that she was “reacting” to all of it. She started touching his hips.
38He then lowered his pants. He testified that he felt T.F. lower her own pants, and then he helped her take her pants and underwear off. He understood from her movements and look that she was agreeing to the sexual intercourse.
39M.S. testified that during the sexual intercourse, he did not notice anything bad about T.F.’s demeanor. He testified that her body language told him that everything was okay. He testified that when the sexual intercourse finished, he went to the side of the bed to rest, as he typically did. After the sexual intercourse, they talked more and he told T.F. about projects he was going to do, and that things would get better with her son. The next morning, they woke together.
LEGAL PRINCIPLES:
40The burden is on the Crown to prove beyond a reasonable doubt the essential elements of each of the offences.
41Proof beyond a reasonable doubt is a high standard. The phrase, “beyond a reasonable doubt”, is not an ordinary expression. It is a term that has been used for a very long time and is an important part of our criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence.
42It is not enough for me to believe that M.S. is probably or likely guilty of a particular charge. It is not enough for me to believe that the incidents T.F. alleged could have happened or even probably happened. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. In a criminal case like this, a finding of guilt requires proof beyond a reasonable doubt.
43To find M.S. guilty of any of the specific charges in the indictment, I must be sure that the Crown has proven each of the essential elements of the offences charged. If, based on all the evidence or the lack of evidence, I am not sure that the Crown has done so, I must find M.S. not guilty because it means I have a reasonable doubt.
44To decide whether I can be sure that these things happened, I must assess the credibility and the reliability of the two principal witnesses: T.F. and M.S.
45The assessment of credibility is not a contest between the witnesses, and I must not (and do not) approach the evidence as a choice between whether I believe T.F. or M.S.: R. v. A.R.J.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 19, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218.
46When an accused person testifies, I must approach the evidence in accordance with the Supreme Court of Canada’s direction in R. v. W. (D.), [1991] 1 S.C.R. 742.
47In that case, the Supreme Court of Canada held that if I believe the accused’s evidence, I must acquit him. Even if I do not affirmatively believe his testimony, I must acquit him if his evidence leaves me with a reasonable doubt. Finally, even if I entirely reject the accused’s testimony, I can only find him guilty if the remainder of the evidence that I do not reject convinces me of his guilt beyond a reasonable doubt.
48This framework provides guidance to ensure the presumption of innocence and the Crown’s burden of proof are respected. The purpose of the framework is to prevent criminal trials from unintentionally devolving into “credibility contests,” where judges or juries simply decide the case based on which version of events they prefer. Instead, the correct question is whether, considering all the evidence, the Crown has proven the accused’s guilt beyond a reasonable doubt.
49In considering the strength of the evidence in this case, I must assess whether it is both credible and reliable. These two concepts are not the same. Credibility is concerned with a witness’s veracity or honesty – their willingness to tell the truth as they understand it. Reliability is concerned the witness’s capacity to accurately recall and communicate what happened: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 205; R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500, at paras. 69-70, per Laskin J.A.
50The reliability of a witness's testimony is often gauged by the witness's ability to observe, recall and recount the events at issue: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. Reliability assessments engage such common sense factors as the conditions under which the witness made the material observations, the level of detail in their testimony, any prior inconsistent statements, the amount of time that elapsed between the observations and the testimony, and whether any intervening factors may have tainted the witness’s memory: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 81.
51Credibility has to do with whether the witness is telling the truth, or in other words, is being sincere and honest. A witness who is not telling the truth is not providing reliable evidence. However, the reverse is not always the case. Sometimes an honest witness will be trying their best to tell the truth and will fervently believe the truth of what they are relaying but may nevertheless be mistaken in their recollection. Such witnesses will appear to be telling the truth and will be convinced that they are right but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable: Morrissey, at p. 205.
52Evidence must be found to be both credible and reliable before I can rely on it to ground a finding of guilt: H.C., at para. 43; Morrissey, at p. 205.
53Demeanour (i.e. the witness’s appearance, tone of voice, and general manner) when testifying is relevant and may be considered when assessing credibility but must be approached with caution. It is recognized that the way most witnesses testify sheds little light on the question of whether their evidence is credible or reliable. Demeanour alone is a notoriously unreliable predictor of a witness’s credibility or the accuracy of their evidence: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 128-129; R. v. G. (G.) (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 7-8; R. v. Norman (1993), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-73; R. v. S. (W.) (1994), 90 C.C.C. (3d) 242 (Ont. C.A.), at pp. 250-51, leave to appeal refused, 1994 19084 (S.C.C.).
54The assessment of evidence is not about judging a witness’s character but about assessing the truthfulness and reliability of their testimony. Appearances can be misleading — a seemingly disrespectful or unpleasant witness may be truthful, while a polished individual may be deceptive. Factors like race, culture, education, and social background can influence how a witness presents, without reflecting on their honesty or accuracy: R. v. G.M.C., 2022 ONCA 2, 159 O.R. (3d) 561, at para. 68.
55Rather than demeanour, assessments of credibility and reliability should engage more objective factors like the internal consistency and coherence of a witness’s testimony; the incidence of inconsistencies with prior statements, especially those made under oath; consistency with other accepted facts and other probable circumstances; the plausibility of the narrative; and evidence of any motive to fabricate: Kruk, at para. 81.
56When a witness says one thing when testifying in court but has said something different about the same subject on an earlier occasion – for example, in their statement to the police during the investigation or at a prior court proceeding or a trial – this will be a factor in assessing the witness’s credibility and reliability. Prior inconsistent statements, and any internal inconsistencies in a witness’s account, are a valuable means of assessing their credibility and reliability: R. v G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.) at p. 354, leave to appeal refused, [1994] S.C.C.A. No. 390.
57However, not all inconsistencies carry the same weight: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 12. They vary in their nature and importance. Some are minor and others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth or undermine the credibility or reliability of the evidence.
58I must therefore determine what effect any inconsistencies in the witness’ testimony will have on their overall credibility and reliability. These differences may have a huge effect, or no effect, or something in between. Not every difference is important. I must consider the extent and nature of any difference, and any explanation the witness gave for the inconsistency to decide how much weight to put on the evidence of that witness: G. (M.), at p. 354.
59In sexual assault cases especially, I must assess the credibility and reliability of the evidence, being careful not to rely on myths and stereotypes about the way people behave in intimate situations. Specifically, I must not, and do not, approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what kind of person may or may not be the victim of sexual assault, what type of person may or may not perpetrate sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say: Kruk, at para. 35. The law recognizes that when it comes to the crime of sexual assault, there is no typical victim, typical assailant, typical situation or typical reaction: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 60-63; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 89, per L’Heureux-Dubé J. (concurring).
60The reality is that there is no fixed rule on how people who are the victims of a trauma, like sexual assault, will behave while subject to the abuse or in its aftermath: R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, at pp. 650-51, per L’Heureux-Dubé J. (dissenting in part, but not on this point); Kruk, at paras. 36-37. In assessing credibility, I am permitted to rely on logic, common sense and experience. What constitutes common sense and how it applies is a determination I can make, as the trier of fact: R. v. Donnelly, 2023 ONCA 243, at para. 38. However, I must be careful not to rely on unreasonable generalized expectations of how a person behaves and self-scrutinize to ensure that I recognize and exercise caution wherever I have relied on “common sense and logic”, as this may cloak impermissible stereotypes with the false imprint of common sense: A.R.J.D., at paras. 6-7.
61There is no inviolable rule on how someone who is the victim of a traumatic event, like a sexual assault, will process that experience in its aftermath. Some may come to terms with it quickly, while others may require time to process it: A.R.J.D., at paras. 50-52, 56-58, and 64. Some may vividly recall the details, whereas others may have trouble remembering or recounting more peripheral details. In assessing a complainant's credibility, continued contact with the accused or the timing of the complaint are simply factors to consider in all the circumstances of a particular case. A delay in disclosure, standing alone, will not give rise to an adverse inference against the complainant's credibility: D.D., at para. 65.
62I have also been careful to scrutinize the evidence of the accused to the same extent as I scrutinized the evidence of the complainant.
ANALYSIS:
63Keeping in mind the direction from the Supreme Court of Canada in W. (D.), I will first turn to my assessment of M.S.’s evidence. The question I must decide is not whether I believe T.F. or M.S. but whether the Crown had proven beyond a reasonable doubt M.S.’s guilt on the evidence as a whole in respect of each charge. If it is at least reasonably possible that M.S.’s account might be true on each charge, I cannot reject it beyond a reasonable doubt.
Assessment of M.S.’s Evidence:
64For the most part, I found that M.S.’s evidence was credible and reliable. He testified in a straight-forward, coherent manner. For the most part, his evidence was consistent with his statement to the police and T.F.’s version of events. The only critical aspect of his evidence that diverged from T.F.’s evidence was about the circumstances of the sexual intercourse.
65While I accepted his evidence generally, I scrutinized carefully M.S.’s description at trial of how T.F. allegedly communicated consent to the sexual intercourse. I found it concerning that when he was interviewed by the police 39 days after the event, he did not provide those details to the officer. During the interview, he was repeatedly asked to explain what led him to believe that T.F. wanted to have sex with him. M.S. could not explain it, let alone explain it in the terms he used at trial. In the end, as I explain below, I was satisfied as to his explanations for what could be construed as a fatal inconsistency in his account. It did not undermine his credibility and reliability.
66What M.S. told the officer left open the possibility that he inferred consent from T.F.’s silence or lack of resistance – her “allowing” it to happen. Silence, or lack of resistance, of course cannot be equated with consent: R v. Ewanchuk, [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481.
67At trial, M.S. testified that T.F. actively communicated her consent through her movements and body language. He testified that T.F. kissed him back and looked into his eyes; she lowered her own pants, moved her hips underneath him, and touched his hips and buttocks.
68These are facts he could have mentioned to the officer during the interview when the officer repeatedly asked him why he thought T.F. wanted to have sex with him. On the one version, T.F. was a passive recipient of his advances. On the other version, she actively communicated her consent.
69I grappled with whether this is a fundamental inconsistency that fatally undermines M.S.’s credibility or reliability. I concluded that M.S. was surprised by the allegations when confronted by the police and may have been unable to articulate exactly what happened.
70At trial, M.S. testified that he did not mention these details to the officer because he was tired when he was interviewed and his lack of proficiency in English limited his ability to express himself. I accept this explanation. The interview took place in the middle of the night, after another interview in respect of the unrelated charges. M.S. clearly has some difficulty expressing himself and understanding English. For example, during the interview, he did not understand what the officer meant by it being a “leap” to go from having the biggest fight of their relationship to having sex. M.S. also asked the officer to demonstrate what he meant by choking.
71During the interview, M.S. said that he was surprised by the allegations. This made sense. As a result, I find that he was unable to accurately and effectively articulate why he thought T.F. was consenting to having sex with him in that moment. When a person is first confronted with an allegation of criminal misconduct, his reaction to the allegation is often not a reliable indication of guilt. Such evidence needs to be approached with caution: R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at paras. 27-28; R. v. J.S.W., 2013 ONCA 593, 301 C.C.C. (3d) 252; R. v. Chafe, 2019 ONCA 113, 371 C.C.C. (3d) 91; R. v. D.B., 2024 ONCA 546, 441 C.C.C. (3d) 113, at para. 24; R. v. Perez, 2023 ONSC 7127, at paras. 54-59; R. v. Senthamilselvan, 2019 ONSC 3884, 57 C.R. (7th) 143, at paras. 30-33; R. v. Kamara, 2019 ONSC 4214, at para. 103; R. v. Ramiro-Sandoval, 2021 ONSC 2367, at para. 66.
72M.S. was also under no obligation to tell the officer anything or everything. I find that failing to provide a detailed account in the circumstances is concerning, but not fatal to his credibility or reliability.
73It is significant that T.F.’s version of events is inconsistent with an interpretation of M.S.’s statement, in which she was a passive recipient of M.S.’s advances. According to T.F., she was actively resisting and communicating her lack of consent. She descried a violent and aggressive sexual assault during which she repeatedly said no and actively resisted.
74I concluded that the inconsistency of M.S.’s evidence at the trial with his previous statement is of little consequence. M.S.’s evidence was otherwise internally consistent. There were no major omissions from his evidence or inconsistencies that rendered his testimony implausible, inconsistent, incredible or unreliable. As a result, I did not reject it and was left with a reasonable doubt by it.
Assessment of T.F.’s Evidence:
75Even if I had rejected M.S.’s evidence, I was not satisfied that the Crown had proved the allegations based on the other evidence. I had significant concerns about T.F.’s credibility and reliability. Many aspects of T.F.’s evidence seemed exaggerated or cast with such broad strokes that I could not rely on it. Her presentation of what happened was very unbalanced. T.F. had a very clear and strong animus towards M.S. Aspects of her evidence, such as her description of how M.S. held her head and neck for hours, are physically impossible. In cross-examination, T.F. was at times combative. Her friend M.E.’s evidence further undermined the credibility and reliability of T.F.’s account.
76I am not sure whether T.F. deliberately lied, exaggerated, or was simply unprepared. Regardless, I concluded that in all the circumstances, I could not rely on her evidence. I could not be sure that the events giving rise to these charges happened as she described at trial.
77T.F. seemed to exaggerate even minor and irrelevant points. For example, she alleged that after he was released on conditions, M.S. posted communications meant for her on his Instagram account and sent her an Instagram message through her friend. She reported this to the police in December 2021, who reviewed the messages and concluded that no offence had occurred. In cross-examination, it was suggested to T.F. that nothing about these posts suggested that they were for her. She insisted that they were. She was asked what in the message to her friend suggested that it was meant for her. T.F. responded, “of course, she’s my friend, she will forward it to me.”
78An inconsistency arose around T.F.’s preparation for the trial. She was asked at the outset of the cross-examination whether she had reviewed the video recording of her statement. She said she had not, that she had only reviewed the transcript a few times. She explained that she had tried to review the video but could not get the USB it came on to work. She maintained that she had an excellent memory. She adamantly stated that “the truth does not change”, and “I know exactly what happened”. Later, in cross-examination, it came out that she had watched the video recording of her statement only days earlier, at the Burlington police station on the Friday before the trial started.
79Ordinarily, I would dismiss such an inconsistency on a minor irrelevant point as insignificant. But I cannot do so here because of confident T.F. presented herself, only to then be wrong.
80I got the impression that T.F. testified with an agenda. She went out of her way to paint M.S. in the worst light possible. For example, she testified that he did “nothing serious” with his life. She repeatedly testified that he was ‘always’ drinking, partying, and going out with friends. She stated that he drank wine instead of coffee in the mornings. She would cook, clean, go work and earn money, and do his laundry. She stated that it was disrespectful for him to let a woman work so hard. She mentioned, for the first time at trial, that he was aggressive when he drank, that he would grab her and throw her against the wall. She did not miss any opportunity to say something negative about M.S.
81T.F. clearly had strong animus and motive to fabricate the allegations against M.S. She broke up with him because she thought he had been unfaithful. She was upset with him after the Thanksgiving party for flirting and dancing too closely with two other women. After their breakup, she was upset that he had kept a box of her belongings. She also came to believe that he was responsible for the death of one of her dogs. She testified that she had two dogs, a Chihuahua and a Shih Tzu, and that the dogs would cower under the table because of M.S. She testified that one of the dogs died of pneumonia and that she was very upset by this, and later came to learn of bad things that M.S. allegedly did to the dogs, and otherwise.
82T.F. clearly resented that M.S. had not pulled his weight financially while they lived together. She testified that he failed to provide for her as she thinks a man should, and that he was disrespectful and unfair to her. He treated her son badly. She worked hard, while he just drank, partied and went out with friends. Her distaste for him generally was palpable. Although I agree with the Crown that it is natural for someone who has been sexually violated to have some animus towards the perpetrator, T.F.’s manner of testifying was exceptionally unbalanced.
83I also cannot accept T.F.’s evidence about the sexual assault because the mechanics of what she says happened are physically impossible. She claimed that M.S. lay on top of her, ‘immobilizing’ her by holding her head in the contorted way she described for a long time. In closing submissions, the Crown conceded that it was physically impossible for M.S. to have held her head that way, with his thumbs behind her ears and four fingers of each hand on her throat. Yet T.F. was adamant when she testified that this is how he held her head. She demonstrated it multiple times. When it was suggested to her in cross-examination that it is physically impossible for M.S. to have held her head that way, she had no answer. Then, she repeated her story in the exact same way as she had testified about it in the first place, as if following a script.
84T.F.’s claim that M.S. maintained his torso on top of hers, continuously, while holding her neck and head with one hand, and pulling down his and her pants with the other hand in order penetrate her, seems physically unlikely.
85T.F.’s description of how the sexual assault started also leaves an unexplained gap. She testified that M.S. pushed her onto the bed, causing her to sit down, with her feet hanging off the bed. He then pushed her again with his hands above her breasts, causing her to fall backwards onto the bed hard. This too would have left her with her feet off the bed. She was asked how it came to be that she was lying flat, with her feet on the bed, when sexual intercourse took place. T.F. could not answer. In my view, the only explanation is that she was laying on the bed side by side with M.S., as he claimed. He did not push her, as she claimed.
86M.E.’s evidence, far from confirming T.F.’s demeanour the day after the alleged sexual assault, further undermined the evidence. M.E. testified that she saw T.F. the day after the alleged sexual assault, and that T.F. was “in shock”. She was very hurt, devastated, emotionally upset, very sad and traumatized. M.E. was not asked to explain how any of the internal states were manifested.
87M.E. testified that T.F. showed her how M.S. had choked her and violently slammed her head back and forth against the pillows on the bed. M.E. claimed that she saw redness on T.F.’s neck.
88I reject M.E.’s evidence. Her evidence was unreliable. What M.E. claimed T.F. had described to her is entirely inconsistent with what T.F. said happened. T.F. showed a totally different grip on her head and neck. At no point did T.F. claim that M.S. choked her or that he had repeatedly slammed her head against the pillows. T.F. never mentioned having any marks or redness on her neck. If T.F. was upset the day she saw M.E., it could have been because of what happened at the party or because of the argument she had had with M.S. or any other reason. M.E.’s evidence appears to be either a fabrication, or a total exaggeration. I do not know what to make of a witness like M.E., who gave an account so fundamentally exaggerated from what is actually alleged.
89Having considered all of the evidence, I concluded that T.F. was careless in her testimony. She exaggerated at least some of her evidence. She has strong animus towards M.S., which gives rise to motive to fabricate. She seemed to have an agenda when she testified. Aspects of her claims were either physically impossible, improbably or highly unlikely. I cannot accept her evidence.
90In respect of the charge of forcible confinement, based on the synopsis Officer Cunnington read to M.S. during his interview, it appears that T.F. initially told the police that M.S. lay on top of her after the sexual intercourse for three or four hours. This allegation was the foundation for the forcible confinement charge. At trial, T.F. explained that the whole event – from the time they came home until they fell asleep – lasted for three or four hours. Her testimony at trial did not make it clear when the forcible confinement allegedly occurred. She seems to waver on this. I did not accept her evidence that he would not allow her to get up or leave.
91In closing submissions, the Crown took the position that the unlawful confinement occurred when M.S. followed T.F. to the bathroom. In my view, the offence is not made out on this evidence. Forcible confinement is an unlawful restriction on liberty for some period of time. The Crown must prove beyond a reasonable doubt that M.S. intended to restrict T.F.’s freedom to move about. I was not satisfied beyond a reasonable doubt that M.S. physically restrained her with the intention to restrict her freedom of movement. When M.S. accompanied her to the bathroom, T.F. was free to leave as soon as she finished urinating and cleaning herself off, and did so.
92As a result, on all the evidence, I was not satisfied beyond a reasonable doubt that the Crown had proven that T.F. did not consent to sexual intercourse, and that M.S. knew it. I was also left with a reasonable doubt about whether M.S. at any point forcibly confined her.
Criminal Harassment:
93I am of the view that even taking the Crown’s case at its highest, the essential elements of criminal harassment were not made out. To prove criminal harassment, the Crown must prove the following essential elements beyond a reasonable doubt:
a. That M.S. either repeatedly followed T.F. from place to place, or repeatedly communicated with her, or watched or beset her home or other place where he knew her to be, or engaged in threatening conduct towards her,
b. That M.S.’s conduct harassed T.F.,
c. That M.S. knew that T.F. was harassed,
d. That M.S.’s conduct caused T.F. to fear for her safety, and
e. That T.F.’s fear was reasonable in the circumstances.
94T.F. testified that in a span of about a month and a half in the summer of 2021, she saw M.S. “wherever” she went. She testified that at first, she thought it was a coincidence, but when she saw M.S. at the beach on August 24, 2022, he was “obviously” following her. She testified that she saw him when she went dancing, to a store, and to the beach. When pressed, T.F. testified that she saw M.S. once at a Walmart, three or four times in a public square, once at a park, and once by the lake in Hamilton. She testified that there were just “so many” times, but then counted seven times in total. In cross-examination about the incident on August 24, 2022, she added that she had previously seen M.S. at the beach there also. He walked by her while she was lying down one time.
95According to T.F., M.S. did not speak to her on any of these occasions except the one on August 24, 2021 when she ran into him coming through the bushes at the beach. He spoke to her and said, “you can pass” and she walked by. He was about 15’ from her. She told him to leave her alone and that she would call the police. She testified that she was “shaken” for two days.
96When he testified, M.S. confirmed T.F.’s evidence that he ran into her at the path through the bushes from the parking lot to the beach. He testified that he “froze” when he saw her. He told her to “go ahead”. He testified that he saw her once at a dance event in Etobicoke, but he left when he realized she was there. He also testified that he saw her once in a park in Burlington when he was driving by it. He denied seeing her on any of the other occasions she mentioned.
97I have no reason to reject M.S.’s evidence about these events. It is entirely possible that T.F. saw him but M.S. did not see her in those public places. T.F.’s evidence about when and where she saw M.S. was too vague. I find that she was not harassed by his presence. She thought it was just coincidence.
98No evidence was adduced in respect of any details about these events, the exact locations or duration of the alleged sightings. No evidence was adduced from which I could infer that M.S. saw her at the Walmart, the public square, the park or the beach. No evidence was adduced from which I could infer that he followed her, watched or beset her, or engaged in any threatening conduct towards her. No evidence was adduced from which I could infer that T.F. was harassed, that M.S. knew she was harassed, that T.F. feared for her safety or that such fear was reasonable in the circumstances. Based on the evidence adduced by the Crown, I was not satisfied that the Crown has proven any of the essential elements of criminal harassment.
Failure to Comply with the Terms of Release x 2:
99In respect of the incident at the beach, which gave rise to the two counts of failing to comply with the terms of his release, the Crown did not prove beyond a reasonable doubt that M.S. knew or ought to have known that T.F. would be in that location.
100As mentioned, T.F. testified that this was a new spot on the beach for her. There was no evidence as to the size of the beach, or when or how often she went there from which I could infer that M.S. knew or ought to have know she would be there.
101In speaking with her, and inviting her to pass, M.S. committed the actus reus of failing to comply with the terms of his release, but I find that it is not outside the de minimus range: R. v. Smithers, [1978] 1 S.C.R. 506, at p.519; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 54.
102In all the circumstances, I was not satisfied that the Crown had proven M.S.’s guilt on the two counts of breaches of the release order.
CONCLUSION:
103For these reasons, I found M.S. not guilty of these charges.
104The Crown did not discharge it burden to prove these offences beyond a reasonable doubt.
Chozik J.
Released: February 2, 2026