R. v. T.M., 2019 ONCJ 61

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. T.M. , 2019 ONCJ 61 DATE: January 29, 2019 COURT FILE No: 16-0870 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HER MAJESTY THE QUEEN -AND- T.M.

Before Justice Michael G. March Heard on December 21, 22, 2017, March 5, 6, 7, 8, 9, 16, 28, May 18 & July 20, 2018 Reasons for Judgment released on January 29, 2019 Caitlin Downing……………………………………………………….Counsel for the Crown Joshua Clarke….…………………………………………………….Counsel for the Accused March, M.G., J. : TABLE OF CONTENTS Heading Page No. Introduction 5 The Charges 5

Summary of the Relevant Evidence – Crown Witnesses 6 N.P. 6 K.P. 7 D.H. 10 S.P. 12 K.F. 15 M.M. 22 Defence Witnesses 41 T.M. 41 L.B. 70 Defence Expert – Dr. Fedoroff 76 Dr. Douglass 80 Crown Expert – Dr. Cramer Bornemann 80 Issues 88 N.P. 89 K.P. 89 S.P. 89 K.F. 89 M.M. 89

Law 90 Analysis 96 Issue 1: Is T.M.

NCR-MD for the sexual assault on N.P.? 96 Issue 2: Do I believe T.M. that the sexual activity with N.P. was consensual? 99 Issue 3: Does T.M.’s evidence raise a reasonable doubt? 100 Issue 4: What evidence do I accept and does it convince me that T.M. sexually assaulted N.P.? 100 Issue 5: Should T.M. be found NCR-MD for sexually assaulting K.P.? 101 Issue 6: Should T.M. be found NCR-MD for sexually assaulting S.P.? 103 Issue 7: Do I believe T.M.’s account that when he touched K.F., it was not for a sexual purpose? 105 Issue 8: If I do not believe T.M.’s evidence, does it nevertheless raise a reasonable doubt? 107 Issue 9: On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt that T.M. sexually assaulted K.F.? 107 Issue 10: Is T.M.

NCR-MD for five distinct sexual assaults committed upon M.M. because he was, on each occasion, in a parasomnic state? 108 Text Messages 113 February 26, 2016 113 April 25, 2016 114 May 5, 2016 114 November 16, 2015 115 Issue 11: Do I believe T.M.’s account that he did not assault M.M.? 116 Issue 12: If I do not believe T.M.’s evidence, does it raise a reasonable doubt as to whether he assaulted M.M.? 117 Issue 13: On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in T.M.’s guilt that he assaulted M.M.? 117 Issue 14: Has the Crown proven beyond a reasonable doubt that T.M. committed the offence of mischief to a dwelling house? 117 Conclusion 117 Endnotes 119 Introduction: 1 .

Sexsomnia, text messages and nights of wild, youthful abandon are the loose themes of this trial which spanned some eleven days. The accused, T.M., (“T.M.”) and his former common law partner, one of the complainants, M.M. (“M.M.”) met when they were mere teenagers. They were together in a relationship for some nine years afterwards. 2 . The couple worked hard to build a life together. They started a business. They had two children, a daughter Tx. and a son, J. 3 . However, things went awry in 2013, shortly after the birth of their son. T.M. began to exhibit curious nocturnal behaviours.

M.M. would awaken to being touched sexually. She would confront T.M. He did not always acknowledge an awareness of his conduct. Yet, on occasion, he did. 4 . Their relationship did not end well. T.M., in fact, was the first to make a report to the police. He told the authorities M.M. drove dangerously. She had almost injured him. She tore off in her truck, before he had any real opportunity to recoil from the passenger window, into which he had leaned to speak to her. However, when police came to investigate this incident, they learned of a much darker history according to M.M. The tables turned.

T.M. ended up being charged with a litany of offences, including alleged sexual assaults upon four other women, K.P., N.P., S.P. and K.F., in addition to M.M.

The Charges: 5 . T.M. stands charged with the following offences:

a) one count of sexual assault on N.P. alleged to have occurred between January 1 and December 31, 2012 contrary to s. 271 of the Criminal Code (the “ Code ”);

b) one count of sexual assault on K.P. alleged to have occurred between January 1 and December 31, 2013 contrary to s. 271 of the Criminal Code (“the Code ”);

c) one count of sexual assault on S.P. alleged to have occurred between May 1 and Aug 1, 2014 contrary to s. 271 of the Code ;

d) one count of sexual assault upon K.F. alleged to have occurred between January 1 and October 1, 2015 contrary to s. 271 of the Code ;

e) one count of sexual assault on M.M. alleged to have occurred between September 1, 2011 and October 31, 2015 contrary to s. 271 of the Code ;

f) four counts of sexual assault on M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 266 of the Code ;

g) one count of unlawfully confining M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 279(2) of the Code ;

h) one count of assault on M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 266 of the Code ;

i) one count of mischief by wilfully damaging the dwelling house of M.M. alleged to have occurred between March 1 and May 25, 2016 contrary to s. 430(4) of the Code . 6 . In written submissions made November 13, 2018, the Crown indicated it would not pursue a conviction on the unlawful confinement charge.

Summary of the Relevant Evidence Crown Witnesses: N.P.: 7 . N.P. was a close, lifelong friend of M.M.’s sister, K.F. In April 2012, N.P. drove to T.M.’s and M.M.’s residence in XX. N.P., K.F., M.M. and T.M. all went to a bar together. All agreed that they had a lot to drink. All were intoxicated by alcohol. 8 . N.P. and K.F. returned to the residence before M.M. and T.M. N.P. went to sleep on a couch in the living room almost immediately upon arriving home. She believed it was between midnight and 1:00 a.m. when she fell asleep. 9 . N.P. awoke to a man lying beside her. He was rubbing his beard against her face.

He was grunting her first name in her ear. Prior to that evening, N.P. had never met T.M. She told him to leave her alone. She didn’t know who he was at the time. He complied. N.P. fell back asleep. 10 . N.P. awoke again – this time to yelling. She heard M.M. ask, “What did you do to her?” She didn’t see anyone on the couch with her. She did realize soon after that her blanket had been removed and her pants were down. She pulled them up and pretended to be sleeping. N.P. was worried she would be accused of having consented to sexual activity with T.M. 11 . N.P. fell back asleep.

She awoke yet again to T.M. with his hand up her shirt. She felt fingers on her breast. She thought it was T.M.’s right hand. His face again was making contact with hers. He was repeating her first name. He touched her face as well.

12 . N.P. got off the couch. She told T.M. to “fuck off.” He did nothing – meaning he remained in her presence. She went to the room where K.F. was sleeping. She couldn’t rouse K.F. She then drove home. She estimated she left at 5:00 a.m. K.P.: 13 . In February or early March 2013, K.P. was snowboarding one day in C. with her then boyfriend, D.H. Around the time that the hill closed – roughly 4:00 p.m. – D.H. and she went to M.M.’s and T.M.’s home in XX. Plans were made by all to go drinking at a mutual friend’s place, T.T. 14 . K.P. recalled having a beer at the ski hill around 1:30 or 2:00 p.m.

Much greater consumption occurred at T.T.’s over games of beer pong and listening to music. It was a “hang out session” of some four hours duration. K.P. estimated she and the others arrived at T.T.’s at 7:00 or 7:30 p.m. She consumed at least nine Bud Lite. She described herself as “aware,” but “intoxicated.” 15 . K.P. did not mince words. She testified that when she went out at night at that time, she tended to overdo it and drank heavily. This occurred every other weekend. 16 . She remembered that D.H. drove her back to M.M.’s and T.M.’s place from the ‘get together’ at T.T.’s.

T.M. and she had positive interactions earlier in the evening. He was already home when K.P. arrived. He was sitting on the couch playing video games. K.P. sat down to talk with him for a bit. She fell asleep. 17 . She could not remember if D.H. went straight to bed on arrival in the spare room. 18 . K.P.’s recollection was that T.M. was awake when she drifted off. He was a body length away from her sitting upright. She awoke to D.H. exclaiming, “What the hell!” He was at the bottom of the stairs – roughly 2 ½ feet away. She then felt a rubbing sensation on her vagina. She sat up quickly. She told him to stop.

T.M. said, “Sorry.” He backed away. T.M. was now within a sitting position from her. K.P. went upstairs with D.H. She told him she was sorry he had to see that. Both were shocked at what had occurred. 19 . K.P. believed T.M. most likely used his left hand to touch her private area. At the time, K.P. was wearing a grey sweater and black spandex pants. 20 . The next morning, K.P. called and told M.M. about the incident. M.M. was upset. She confronted T.M. T.M. apologized. There was no discussion between M.M. and K.P. about going to police. 21 . To K.P.’s mind, T.M. made a mistake.

She hoped M.M. and he could work things out. K.P. remembered T.M. was embarrassed by his conduct. He had no explanation for why it occurred. Nor did he make any excuse. He did say he had too much to drink. 22 . K.P. had no discussions with K.F., S.P. or N.P. about what T.M. did. 23 . K.P. did not believe T.M. was asleep during the touching of her vagina over her clothing. His eyes were open. The T.V. was still on. She did not notice what he was doing with his other hand. He was not touching himself. 24 . K.P. agreed that she accepted the apology offered by T.M. She did not go to police.

For her, the matter was over. She only reported the incident after M.M. asked her to back her up. 25 . K.P. never wanted to come to court. She did not write down shortly afterwards the details of the incident. Indeed, she struggled at times to remember the night’s events. She admitted to confusing some of the details in giving her statement to police in the spring of 2016.

26 . She became involved in the investigation only after T.M. called police on M.M. In providing background information to an officer, M.M. kind of dropped K.P.’s name. 27 . K.P. further recalled that she had had three to four beer before going to the ski hill. She had one there. She had approximately nine at T.T.’s. In total, she had fourteen or fifteen beer over the course of several hours. She would not have driven. She readily conceded she was intoxicated, but not “falling over” drunk. 28 . K.P. did not believe she took a cab back to M.M.’s and T.M.’s home, but it was possible.

The end of the night K.P. described as “a bit of a blur.” 29 . M.M. is K.P.’s cousin. K.P. described herself then in 2013 as a “party girl” along with M.M.’s half sister, K.F. On the other hand, she described M.M. differently – not a “bar star.” K.P. characterized M.M. as someone who liked to dance and have fun. She paced herself, but she did drink and smoke marijuana. 30 . K.P. did not believe she consumed any more alcohol after she returned to M.M.’s and T.M.’s following the get together at T.T.’s. Nor did K.P. think that she smoked a joint at that point, but she conceded she very well could have.

Equally, she could have shown D.H. to the spare bedroom. She maintained he did say, “What the hell” or “What the heck” when he came downstairs. 31 . K.P. denied that D.H. confronted her the next day about what occurred on the couch. She suggested he was mistaken. The incident, she offered, did occur four to five years earlier. She believed T.M.’s apology was sincere. She just wanted M.M. and T.M. to move on with their lives and their family. 32 . K.P. vehemently denied that what occurred with T.M. on the couch was consensual. T.M. was her cousin’s partner.

K.P. agreed she apologized to D.H. not because she was behaving like a “ho,” but because she is Canadian. She is naturally apologetic is what I took her to mean. 33 . K.P., at the time of being touched, did not look at T.M. for a long period of time. She confirmed he said, “Sorry” right away, or “Sorry, I thought you were M.M.” 34 . In the years after the incident, K.P. was made to feel uncomfortable by T.M. She was running a lot. He would comment on how her butt looked in tight shorts. She started to distance herself from M.M. and T.M. as a result. K.T. also did not want to make T.M. feel uncomfortable either.

M.M. and T.M. had two children together. K.P. did not want to cause any drama. 35 . K.P. was firm in her belief. She was confident T.M. knew what he was doing when the incident happened. It was without her consent. D.H.: 36 . D.H. recalled that same evening five to six years previous in giving his evidence. He testified that he was involved in a three to four month relationship with K.P. He believed he met T.M. for the first time the day of the incident, which brought him to court. K.P. and he did not keep in contact since the occurrence. 37 .

That night D.H. remembered going to bed with K.P. at M.M.’S and T.M.’s home. D.H. believed K.P. was still with him when he fell asleep. He woke up to her absent from the bed. He went to get a drink of water. He saw K.P. and T.M. on the couch. D.H. was upset. He poured himself some water and went back to bed. He did not say anything. 38 . D.H. recounted being at T.T.’s place earlier in the evening along with T.M., M.M., K.P. and two others. All were drinking. D.H.

knew he had reached the point of intoxication. 39 . When D.H. saw K.P. and T.M. downstairs on the couch together, he believed she was on her back with T.M. on top of her. D.H. was not able to see what they were doing, or where T.M.’s hands were. 40 . D.H. was able to make out that their heads were at the same end of the couch. Both appeared to be clothed. Neither spoke. T.M. seemed awake and somewhat upright. D.H. could not determine whether K.P. was awake. 41 . D.H. was angry. He had been “with” K.P. that night. 42 . D.H. acknowledged he was drunk.

If he had to render an opinion on K.P., he would have put her as a “little bit intoxicated” too. He assumed that when he went to get some water, he was still somewhat under the influence of alcohol. 43 . When he poured himself some water from the dispenser on the fridge, he did not look back to the couch as he went back to bed. He did not hear any noise. Again, he did not say anything as he passed by. 44 . D.H. did not recall if anyone was with him when he woke up in the morning. He did not know where T.M. was. He believed K.P. simply drove in her car, and they left M.M.’s and T.M.’s place. 45 .

He had a conversation with K.P. about the night’s events. He did not remember what K.P. said. He never talked to T.M. about it. 46 . D.H. did not think K.P. and he saw each other romantically after the incident. 47 . D.H. was trying to be quiet when he went downstairs. When he looked into the living room, he described T.M. as “straight armed.” He was lying with his full body horizontal to K.P. It was just his torso, which was above hers, as if he were doing a push up. 48 . D.H. did not remain to observe or study their movements. He was frustrated and mad. 49 .

He did not remember K.P. returning to bed for the rest of the night. Nor did he recall taking his truck to T.T.’s place earlier in the evening before ending up at M.M.’s and T.M.’s house. D.H. agreed that it was possible T.M. drove him to get K.P.’s car at T.T.’s place the next morning. However, he added, “Anything is possible.” 50 . D.H. did not remember how much time he spent with K.P. the next day. The incident he witnessed at M.M.’s and T.M.’s residence did not end their relationship. As D.H. put it, “Things weren’t going that great.” 51 .

D.H. thought nevertheless that what he saw happening on the couch was consensual. Yet he never really talked about it with K.P. S.P.: 52 . S.P. has known M.M. as a friend since 2007, when both were living in North Bay. By extension, S.P. has known T.M. for almost as long. M.M. and T.M. were dating when S.P. first met M.M. 53 . S.P. explained that M.M. and she were really close. They lost touch after what T.M. did to her. S.P. thought the incident occurred in 2013 in the springtime in M.M.’s and T.M.’s home, although it could have been as late as 2014. T.M. had just opened his shop. M.M.

was running a daycare out of the home. 54 . S.P. was living at the time with her parents in North Bay. She went to visit friends in the XX area. She stayed with M.M. and T.M. 55 . S.P. recalled that one evening during her stay, they ordered pizza. She drank about three beer. She felt sober. She did not recall how much M.M. had to drink. S.P. did not even know if T.M. drank. 56 . S.P. believed that M.M. went to bed first. She was not sure when T.M. decided to retire for the night. When S.P. went to bed, there was no one else up. 57 . At the time, she was wearing a black T-shirt and shorts.

She awoke to T.M. in bed with her. He was rubbing her breasts and vagina underneath her clothing. He was using both hands. He was behind her – facing her back. 58 . She recalled that the blankets were still over her. She was tense and curled into a ball. She could not say anything. She could not get the words out. T.M. said nothing either. 59 . When she curled, T.M. forced his hand down her shorts to penetrate her. He pushed his fingers inside her vagina. 60 . S.P. tried to push his hands away on more than one occasion. He grabbed one of her hands and placed it on his genitals.

He was wearing a T-shirt and boxers. 61 . S.P. tried to pull his hand away. T.M. continued to try to feel her and get her to touch him. Twice he tried to put her hand on his private area. She explained his fingers were no longer inside her when he grabbed her hand. 62 . T.M. was lying directly behind her. There was no space between them. She remained balled up. 63 . Eventually, he left. She estimated that ten minutes or so went by from the time he first touched her until he left. Over that period, he continued to grope her. She froze. She said nothing. She could not go anywhere.

She remained cocooned after he left. 64 . She believed it was early morning when this incident occurred – perhaps 6:00 a.m. Eventually, she got up and started packing her things. She put everything in her car. She waited for M.M. to awaken. She came downstairs with T.M. a while later, and they got ready to go for breakfast. 65 . S.P. did not tell M.M. what had occurred. S.P. was petrified. She explained that she blamed herself at first. She just could not understand why it happened. 66 . S.P. got in her car and left. She swore to herself she would never speak to anyone she knew in XX about it.

That way, she would not have to deal with it. 67 . She did not tell M.M. about the incident until after she learned through a mutual friend that T.M. had been arrested. S.P. could not remember if she reached out first to M.M. or vice versa. S.P. explained to M.M. that T.M. forced himself upon her. S.P. apologized for not coming forward beforehand. 68 . S.P. never discussed the incident prior to that conversation with M.M. Nor had S.P. been told of anything untoward that had happened to M.M. or any other woman. S.P. never spoke to T.M. about the incident.

69 . S.P. recounted that it was dark in the room where she was sleeping. A sheet covered the window. Very little light could enter. Still it was sufficient to permit S.P. to see that T.M.’s eyes were open. She could not recall any expression on his face. 70 . S.P. could not remember if there was a T.V. in the room where she was sleeping. She sensed she had been sleeping for hours before T.M. entered the room. When she awoke, she was facing the wall. The door to enter the room was behind her. 71 . She felt hands on her body. She glanced around to see T.M. She probably turned away because she was in shock.

She only saw him momentarily. 72 . S.P. remained in a ball for almost the entire incident. She remarked that T.M.’s gestures became more aggressive to force the touching to continue. She did not recall turning around to watch him leave. She could not recall if T.M.’s head was off the bed or pressed against it while he was behind her. K.F.: 73 . K.F. is the older sister of M.M. They are very close. K.F. has no other siblings. She has known T.M. for the entire time that M.M. and he had been together – some eight or nine years. 74 . K.F. has lived with M.M. and T.M. on two separate occasions.

The first time was in 2013 to 2014 for the better part of a year. The second time was for four to five months in 2015. She stayed in a bedroom off of the addition in the back of the main part of their house, where M.M. ran her daycare. 75 . Near the end of her second stay, K.F. was sleeping when she felt something touching her. She saw T.M. crouched down with his hand on her leg. 76 . K.F. explained that she typically wears pyjamas or tights to bed. This night was not any different. When she awoke, she was on her back. She was still covered with blankets. T.M. was a foot away from her when she awoke. 77 .

She recalled that he touched her on her left leg, mid-thigh over top of her pyjamas. She did not know which hand T.M. used to make contact with her. 78 . She jumped out of bed. She was very blunt with T.M. “What are you doing?” she asked. He apologized. He was awake. 79 . K.F. was aware of “incidents” – presumably of a sexual nature – when T.M. had been drinking. On this night, he was sober. 80 . T.M. told K.F. he was sorry. He was worried he could not get aroused. K.F. recalled him saying, “I’m just afraid I can’t get it up.” He was extremely apologetic. 81 .

T.M. asked K.F. not to tell M.M. over the next couple of days. K.F. did not for some time afterwards. K.F. had her own reason for doing so. She explained that this was not the first such incident. T.M. had had wandering hands before. 82 . For K.F., it was as though a switch went off. She began to think about whether T.M. was inclined to predatory behaviour. She told him in the days following – “This ain’t right.” She asked T.M. if something happened to him as a kid. Her concern was to get help for him.

83 . K.F. did not believe T.M. was sleepwalking. He did not appear surprised to be in K.F.’s room. After she awoke, she went to the kitchen and T.M. followed. He told her, “Sorry, sorry.” Again, he pleaded with her not to tell M.M. 84 . After the incident, K.F. started sleeping at the front of the house on the couch. She did not want such an incident to be repeated. She tried to avoid T.M. as much as possible. They did not talk about it further, but she believed he understood the reason for her change in sleeping arrangement. 85 .

Through her employee assistance program at the Royal Bank of Canada, K.F. arranged for counselling sessions for M.M. On the way to the first session, M.M. told K.F. about what happened to their cousin, K.P. Then K.F. opened up to M.M. about what happened to her. K.F. had to explain why she did not tell her sister immediately, and why she was sleeping on the couch. 86 . K.F. thought that T.M. had grabbed K.P.’s bum. She wondered what she would do if T.M. acted inappropriately toward his daughter. 87 . K.F. testified that she has known N.P. her whole life (i.e. since she was four or five years old).

She described their relationship as though they were sisters. However, the last time they were together, K.F. was not impressed with N.P.’s behaviour. K.F. explained that N.P. can get really anxious, hyper and defensive. There is no hatred between them; they now just enjoy their space. 88 . K.F. recalled going to Exciters with N.P., her dad, his girlfriend, M.M. and T.M. Before closing time, N.P. tripped down some stairs. She did not fall; the stairs were steep, but K.F. acknowledged that N.P. was not sober. K.F. was upset that they were asked to leave. 89 . K.F. and N.P. went home in a cab.

K.F. slept in a room where there was a crib and a bed. She believed N.P. went to sleep on a couch in the back room. 90 . K.F. did not awaken till morning. N.P. was gone. K.F. noticed she had missed calls and messages from N.P. 91 . K.F. was upset N.P. had left and driven home – perhaps in an impaired state. N.P. explained that she tried to wake K.F. when ultimately they were able to speak with one another. N.P. told K.F. she tried to rouse her, but could not. Eventually, N.P. disclosed to K.F. what had occurred. K.F. knew at some later point N.P. talked to M.M. 92 .

K.F. asked N.P. not to report to the authorities that she woke up to T.M. on top of her. K.F.’s motives were the same in not reporting anything T.M. did to her. T.M. was her sister M.M.’s partner. 93 . K.F., N.P. and M.M. eventually did talk. In time, K.F. told N.P. what had happened to her. Their concern was what would happen to M.M.’s and T.M.’s children. 94 . K.F. related that she did not ever discuss with K.P. what happened to her. K.F. explained that K.P. and M.M. are close. K.F. and K.P. are not. 95 . K.F. never discussed with S.P. either what happened to her.

K.F. was aware that S.P. helped out M.M. and T.M. after their son, J., was born. 96 . Over the periods that K.F. lived with M.M. and T.M., K.F. has never been aware of any tendency on his part to sleepwalk. Nor did she ever hear T.M. sleeptalk. She only heard of those claims after he was charged. Neither M.M. nor T.M. ever disclosed to K.F. such phenomena.

97 . K.F. denied that the state of her bedroom when she lived with M.M. and T.M. was a disaster. The night of being touched by T.M., K.F. did not think M.M. was home. K.F. believed it occurred in the wee hours of the morning. She did not know if it was the night M.M. went with another male to collect auto parts in the U.S. 98 . When K.F. awoke to being touched by T.M., she could not recall if he removed his hand, or if she moved it for him. She did not hear him enter the room. She did not describe herself as a heavy sleeper. 99 . K.F. did believe that her T.V. was still on.

She agreed she did not mention that fact to police. However, she did not recall being specifically asked that question. She denied she was testifying according to an agenda she set for herself to support her sister. 100 . K.F. agreed there was no light on when T.M. entered her room. However, she explained that 80% of the time she fell asleep with the T.V. on. 101 . K.F. recalled that she was covered with a comforter or blanket. She does not like sheets. 102 . K.F. felt T.M.’s hand on the outside of her thigh, not on its inner aspect. She could feel his fingers, but there was no shaking motion he used.

It was more of a petting nature. It was not a waking gesture. It was brief, but gentle – like a caress. 103 . In the statement K.F. gave to police on May 27, 2016, she indicated that the lights and everything were off, when T.M. put his hand under her blanket. She maintained there was some light. 104 . Further, she indicated to police that T.M. was “rubbing” her leg. K.F. explained however that it was a rub in the manner of a borderline caress. K.F. conceded she may have used profanity to repel T.M. She reacted instinctively. She knew what T.M. was doing. 105 .

A five page text exchange between K.F. and T.M. was made Exhibit 14 on the trial. The texts read: T.M.: “M.M. is working on hers and well we all know I have a few too I know i have a prob its embarrasing Frig i can’t really talk about with you I dunno K.F.: It could be more embarrassing for you and your family if you do nothing T.M.: Can you keep it quiet please i dont want people to know im afraid it will affect my business and that scares me right now Ya but im afraid this is gonna cost me my family i dont think M.M. wants anythin to do with me K.F.: Then we need to do something to make sure it doesn’t

T.M.: Im afraid its too late i have screwed up too many times and i have to suffer the consequences now K.F.: That depends on you Your kids need their father and tom one day you’ll get the wrong person and yours T.’s and J. slide will go down with it Well I can have a couple T.M.: lol ok sounds good it would be nice to see ya and chill I wanna appologize for everythin K. i feel terrible for putting u in that situation. Know that im getting help and i hope u can understand the suspicions i had about that guy.

I dont want u to be uncomfortable around me i am a good person just been through the meat grinder for years. I really am sorry for everythin K.F: plans tomorrow Where are you T.M.: So the night i went in ur room was the night M.M. slept with S. i knew it when she came home her eyes were glass like she had been crying which i asked if she was cryin said no i asked her if there was anythin she need to tell me and she said no went to bed.

I think thats why i did what i did K. it was wrong and i realized right away i think i said i dunno wtf im doin here Ok lol srry I knew that night she did it Srry I went in ur room K.F.: Ok but the other times with other people T.M.: Yes drunk i changed thay K.F.: Ok let ya talk about it later Let’s sry T.M.: Kk K.F.: Talk later

T.M.: Kk K.F.: K good night T.M.: Night” 106 . K.F. believed the messages were composed fairly close together. The texts make reference to keeping it quiet. K.F. likened this to asking her not to say anything, which T.M. asked on more than one occasion. K.F. wanted to make things better for T.M. and M.M. 107 . It was as well pointed out to K.F. that she did not tell police that T.M. said he was afraid he couldn’t get it up. K.F. surmised that there was a lot she did not tell police in her statement.

However, she believed that T.M.’s comment to that effect had to do with his relationship problems at the time with M.M. He believed she was having an affair with S.B. K.F. denied she was embellishing her evidence to assist her sister. 108 . In respect of the incident involving T.M. and N.P., K.F. denied any suggestion that N.P. was extremely intoxicated prior to leaving the bar. N.P. came back to K.F. after slipping on the stairs. 109 . K.F. did not downplay her alcohol consumption. She testified she was asleep the minute her head hit the pillow. She was a heavy sleeper that night after the bar.

Typically, she would awaken when T.M.’s and M.M.’s children came into her room and called her name. K.F. maintained T.M. did not do that when he came to her room. 110 . K.F. was clear that N.P. did not leave her cellphone. She left instead a Blackberry tablet. K.F. returned it to N.P. via interoffice courier. K.F. was adamant that all three women, K.F., N.P. and M.M. spoke about the incidents afterwards involving T.M. and N.P. However, life went on. They all tried to move on from it. It was an emotional time for K.F. M.M. is her baby sister. 111 . K.F. denied any plotting against T.M. He needed help.

They wanted any problem he had corrected. K.F.’s outlook was that T.M. was like her brother. He was the father of her niece and nephew. She never labelled him as bad, nor wanted him away from them. 112 . K.F. regarded T.M. not as an angry or mean person. Rather, when T.M. opened up to her that he had a problem and it was embarrassing, she likened this to an epiphany for her. His problem had led to more than one incident – not an isolated event. It was ongoing. T.M., to her mind, was afraid of losing everything. It was clear that T.M. was not talking in his texts about financial or anger problems. M.M.: 113 .

M.M. met T.M. at a ringette game in 2007. They began to cohabit soon afterwards. Two children were born of their union, a daughter, Tx., on […], 2010 and a son, J., on […], 2013. T.M. was the primary breadwinner for their family. He is a […]. Together, in April 2014, they opened a shop. M.M. did the reception and bookkeeping work. They separated in October 2015, but reconciled in March 2016, when T.M. agreed to go for counselling. However, the relationship ended in May 2016 for good. 114 . M.M. and T.M. continued to live together in their home in XX.

They established a 50-50, shared parenting, week about arrangement. They took turns sleeping on either the couch or the bed. 115 . On May 24, 2016, M.M. had plans to go to a wake. She expected T.M. would care for their children. She drove to T.M.’s friend’s house where, upon her arrival, he told her he was not able to watch the kids. M.M. drove off.

116 . T.M. later reported the incident to police. She believed T.M. had told police she tried to run him over. At 9:30 or 10:00 p.m., police showed up at M.M.’s door. They were going to permit T.M. to collect some of his belongings to vacate their shared residence. After T.M. did so, M.M. asked to speak to one of the attending officers, Cst. McGrath. M.M. decided she would tell the authorities about the many relationship problems she had been experiencing with T.M. over the past several years. 117 . M.M.’s chief complaint was that T.M. would touch her inappropriately while she was sleeping.

She recalled that these problems she was having with him appeared to develop at the time she was pregnant with J. 118 . These nocturnal interruptions of her sleep were happening so often that M.M. felt completely exhausted. She expressed her frustration to T.M. She was running a home daycare. She needed her sleep. 119 . T.M., she explained, would try to remove her clothing. He would touch both her vagina and anus. He would try to perform oral sex upon her. M.M. estimated this was happening as frequently as two to three times per week. 120 .

M.M. described how she would awaken from a deep sleep to find her pants down, and T.M. with his face between her legs. On other occasions, he would be trying to rub his penis between her legs. 121 . In terms of their pattern, M.M. recounted that she would go to bed first. T.M. would stay up later playing video games. Typically, she wore a tank top and pyjama bottoms to bed. T.M. usually wore just boxers. She slept on the left side of the bed, and T.M. on the right. 122 . M.M. testified it reached a point where it seemed that T.M. was trying not to wake her. He would lie directly beside her.

He would pull her pants down and put his fingers inside her. Sometimes she would awaken before they were off, but other times, they would be completely off. 123 . T.M. would put his penis through the fly hole of his boxers. He would then try to force his penis into M.M.’s vagina or anus. Usually, M.M. would wake up to these efforts. It was hard not to, M.M. explained. However, on a couple of occasions, M.M. awoke to find fluids in or around her vaginal or anal region. She believed this to be T.M.’s semen. 124 . On the second occasion she noticed this, M.M. asked T.M. about it on her way to work.

T.M., she testified, admitted to having ejaculated on her while she slept. This occurred between 2014 and 2015 after J. was born. 125 . M.M. explained she had woken up to feeling sore in her private area. She could smell the semen. T.M. told her he was sorry. He promised he would not do it again. 126 . Usually, these nocturnal transgressions would be visited upon M.M. when she was not having sex with T.M. as often as he would like, or as often as they had in the past. 127 . M.M. described T.M.’s movements as slow and careful.

She explained to him that she would be more willing to have sex with him before she went to bed. She did not want to be woken up after she fell asleep. 128 . This type of behaviour exhibited by T.M. persisted over roughly a three year period. Every time it happened, M.M. would tell T.M. how she felt violated. She was supposed to feel comfortable having sex with her spouse. She did not. 129 . She warned T.M. if he did not stop, she would leave him. She did on occasion move to the couch. She did not end the relationship earlier because T.M. was her partner. He is the father of her children.

She wanted to give him the benefit of the doubt, to seek counselling and to speak to his mother. However, he kept it up. It did not stop.

130 . T.M. and M.M. tried counselling after their separation in October 2015. It did not help. M.M. felt that T.M.’s view, which he repeatedly passed along to her, was that she was not having sex with him as often as he needed it. 131 . When T.M. and M.M. reconciled in March 2016, M.M. recalled that the nocturnal activity was not as frequent. She estimated it happened perhaps four times. The last two, she remembered, occurred on May 4 and May 14-15, 2016. Her memory as to the dates was assisted through text message exchanges they had. 132 . On May 4, 2016, M.M. could not recall who went to bed first.

She did recall that neither T.M. nor she were drinking. She woke up to her pants half way down and T.M.’s fingers inside her vagina. She was lying on her left side with T.M. directly behind. She could not be sure which hand he was using. She surmised it was his right one. His arm was up, around and over her. She told him to get off of her. She wanted to sleep. He said he would stop. He rolled over. However, M.M. awoke again an hour later to T.M. touching her. He had tried to get her pants off. He was carefully pulling them down. She got up and went to the couch. 133 .

M.M. explained that her pyjama pants are not particularly tight in the waist. It was not difficult to remove them, even if pulled lightly. 134 . She recalled he had both hands at her waist. He was not saying anything. He was pulling her pants down. 135 . To M.M., T.M. appeared awake. He was careful doing what he was doing. As M.M. put it, “He had to be awake.” She concluded he was certainly conscious when his fingers were inside her. As soon as she told him to stop, he did. He listened. After this second occurrence, M.M. pulled her pants tight and got out of bed. She went downstairs.

T.M., she says, acknowledged what he had done the next day. 136 . They discussed what he was doing through texts. He agreed that what he did was wrong, and that he needed to get help. He explained he was not comfortable with his counsellor. M.M. suggested he should find someone else. Otherwise, he would be wasting his time. 137 . On May 14, 2016, M.M. recounted that she was going out for an evening with the girls. She first went to her friend, S.B.’s house. T.M. drove her there. M.M. and S.B. then decided to go to a party. 138 . T.M. became upset as time lingered on and M.M. was not returning home to XX.

They were exchanging texts. M.M. was growing frustrated and annoyed herself. She did not want go to home. M.M. felt that T.M. was jealous. He knew the stag party was being held for the brother of a man, Jeff, who M.M. was seeing during the fall and early winter of 2015 – 2016 while T.M. and M.M. were separated. 139 . M.M. did not arrive home until 4:30 a.m. on May 15, 2016. She had been drinking vodka through the evening and night. She believed she stopped drinking around 1:00 a.m. She sobered up quickly with the tension between T.M. and her. 140 . M.M. intended to sleep on the couch.

T.M. prevented her from doing so. He wanted her to come up to bed. She finally agreed. 141 . Before going upstairs, T.M. accused M.M. of not being honest, using cocaine and smoking marijuana. M.M. did not believe she had used drugs at all that night. This argument lasted twenty minutes. 142 . M.M. testified that when they went to bed, all she wanted to do was sleep. She told T.M. to stay on his side of the bed. He agreed he would not touch her. 143 . M.M. awoke at what she thought was 6:00 a.m. T.M. had his fingers inside her. M.M. could not remember if her pyjamas were off. He may have just gone underneath.

He was calling her a “cunt.” He said he had been checking to see if she had cheated on him.

144 . With this, M.M. believed she got out of bed. She knew her kids would be getting up soon in any event. 145 . A few days later on May 18, 2016, M.M. recalled an occasion where she was trying to get into the shower. It was approximately 9:00 p.m. The children were sleeping. M.M. was wearing only a towel. 146 . M.M. asked where T.M. had been. He told her he had a smoke with Jessica. M.M. asked if he had taken her last cigarette. T.M. said he had not. M.M. was wondering what T.M. and Jessica were discussing.

She was annoyed that T.M. was speaking to Jessica about their relationship issues, while she was not allowed to talk to Jeff. 147 . M.M. then attributed to T.M. insults about how Jeff had his penis in her vagina. Suddenly, M.M. testified, T.M. delivered four quick punches to her vagina. She slapped T.M.’s face to stop him. 148 . The punches, she said, hurt her, but did not knock her to the floor. She pushed T.M. out of the bathroom, she thought. She had told him to get out and leave her alone. 149 . T.M. punched the door after it was closed. It dislodged a mirror attached to the inside of the door.

The mirror fell and broke. 150 . M.M. took a photograph of T.M. cleaning up the mess. His hand is depicted in the photo. M.M. thought that around the time of T.M.’s arrest, she would have found the photo on her phone. The handwritten date on the back of the photo was May 15, 2016 at 9:30 p.m. Seeing this notation on the back of the photo corrected M.M.’s recollection of when this event occurred. She acknowledged it must have happened on the date she wrote. 151 . M.M. testified that the mirror on the door was there when they moved into the home. T.M. is the sole owner of the home. 152 .

In reflecting upon the incidents where T.M. would touch her while she slept, M.M. recalled that there were several texts in which he acknowledged what he was doing. His acts were motivated out of anger. She was not giving him the sex he needed. 153 . She discussed the incidents with her friend, J.S., her sister K.F., her cousin, K.P., but she never told her parents. 154 . M.M. recounted that K.F. told her about T.M. coming into her room and touching her when M.M. and K.F. went to counselling in October 2015. M.M. noted as well that K.F. used to sleep in the spare bedroom downstairs, but later moved to the couch.

M.M. did not understand why K.F. would sleep there when she had a queen bed available to her otherwise, especially when K.F.’s belongings remained in the spare room. 155 . M.M. testified that she later spoke to T.M. about the incident involving K.F. He became very emotional. He apologized to both K.F. and M.M. M.M. acknowledged that she had been unfaithful around the time of the incident with K.F. 156 . M.M. also recalled the incident involving N.P. and T.M. She thought the incident occurred in 2014. A group had gone out to Exciter’s bar for her father’s birthday. T.M. and she were definitely intoxicated.

She assessed N.P. and K.F. to be equally so. 157 . N.P. and K.F. left the bar early. They returned to T.M.’s and M.M.’s residence, where they all were earlier. M.M. estimated T.M. and she arrived home an hour after N.P. and K.F. did. 158 . M.M. testified that N.P. was asleep on the couch. At some point, M.M. walked into the living room to find T.M. with his hands up N.P.’s back underneath her shirt. N.P. was passed out. M.M. thought N.P. was lying on her stomach. He was mumbling. He told N.P.

he loved her. Their heads were within a foot of one another. Both were clothed. M.M. retrieved her camera to record what was occurring. M.M. told T.M. to leave N.P. alone. 159 . M.M. did not remember any lights being on at the time of discovering T.M. and N.P. on the couch together. The recording she took depicted hardly anything. T.M. could be heard saying, “I love you.” N.P. said nothing. She was passed out. 160 . M.M. asserted that T.M. was awake when he was touching N.P. He stopped when M.M. told him to leave N.P. alone. He got up and followed M.M. to bed.

M.M. added that she was quite upset to see what she did. At that point, T.M. appeared quite intoxicated to M.M. 161 . M.M. did not know when T.M. went back downstairs. She had fallen asleep. She estimated it was between 2:00 a.m. and 6:00 a.m. 162 . M.M. received a call from N.P. around 7:00 a.m. M.M. believed N.P. had spoken to K.F. about the night’s event. M.M. surmised that K.F. persuaded N.P. to call her. 163 . M.M. asked N.P. if she had sex with her partner, T.M. N.P. told her she did not think so. 164 . M.M. spoke to T.M. afterwards. He became very emotional. He cried.

He told M.M. that they needed time apart. T.M. appeared sober to M.M. when they spoke. 165 . M.M. corrected her dating of the incident. She knew it occurred before her son was born, thus before or around 2013. 166 . M.M. testified as to her recollection of the incident involving T.M. and K.P. She remembered meeting D.H. briefly. She recalled the gathering at T.T.’s. She believed that they were all at his place for a few hours till 1:00 or 2:00 a.m. Upon leaving T.T.’s, she was aware that K.P. and D.H. returned to her home.

K.P. told M.M. what had happened to her at T.M.’s hands the next day or a couple of days later. 167 . M.M. confronted T.M. about it. He was upset. He apologized. He did not want M.M. to leave him. Both K.P. and K.F. encouraged M.M. to give T.M. the benefit of the doubt. Neither were vengeful toward him. M.M. believed she told K.P. about what was happening between T.M. and her in their relationship. M.M. thought that their relationship problems were starting around that time as well. 168 . In recounting her friendship with S.P., M.M. explained that they met through her friend, S.L.

In turn, M.M. and S.P. became good friends. 169 . M.M. spoke of a weekend where S.P. came to visit her family in 2014. M.M. had some clothes belonging to S.P. afterward. They did not have any contact from 2014 to 2016. They did not talk at all. S.P. deleted her on Facebook. 170 . M.M. then received a suggestion from L.B., a mutual friend, that she may want to get in touch with S.P. M.M. gave L.B. her telephone number. M.M. heard from S.P. a couple of days later. 171 . S.P. told M.M. that T.M. “raped” her. S.P. did not give M.M. any details. Prior thereto, M.M. had no idea what had happened to S.P.

M.M. had already made her report to police. M.M. thus suggested that S.P. could speak with Cst. McGrath if she wished. 172 . M.M. did tell S.P. about the inappropriate touching, which M.M. herself had endured over the years. M.M. suggested T.M. needed help. S.P. in reply did say that T.M. was the reason she had not been in touch in a couple of years.

173 . The messages exchanged between M.M. and S.P. were screenshot and turned over to police by M.M. 174 . About the incident itself, M.M. remembered having an evening at home and some drinks that T.M., S.P. and she shared. None of them were intoxicated. T.M. and M.M. went to bed. M.M. did not remember T.M. leaving their bed. 175 . When S.P. left XX to return home to North Bay on a Sunday morning, they all went to Jim’s restaurant for breakfast beforehand. S.P. did not seem “off.” M.M. recalled a joke being made, and S.P. was quiet after that. M.M. did not hear from S.P. for two years afterwards. 176 .

On May 24, 2016, when M.M. was contacted by police about T.M. coming to collect his belongings, she did give Cst. McGrath names. M.M. believed she gave K.P.’s, K.F.’s and N.P.’s names to police after she was told charges would be laid. 177 . M.M. was shown a reproduction of a Facebook Messenger exchange between T.M. and her on February 26, 2016. It read as follows: “M.M.: Just afraid of you having dreams or something by accident.

I’m sorry to think that way T.M.: No M.M. she is my daughter M.M.: Sometimes you touched me and didn’t know it though T.M.: What I was doin to u was wrong and out of anger M.M.: I dunno I’m sorry T.M.: Cuddles make me feel better M.M.: I just want to protect them. It’s an instinct T.M.: U need not worry M.M.: Just try to get her to sleep in her own bed next time I hope not T.M.: I’m not as fucked up as u think I am M.M.: I’m just afraid you will be sleeping and not realize T.M.: No not gonna happen

M.M.: Which might not be your fault ok sorry T.M.: No not the case M.M.: Ok T.M.: I was aware of what I was doin to u I was angry and it was wrong of me to do that to you M.M.: You acted so much like you were sleeping T.M.: I know I’m sorry it was not right M.M.: I dunno I’m scared I’m sorry. T.M.: Holy fuck stop it ok M.M.: Sure. I’ll just shut my brain off Night T. T.M.: M.M. I love my kids they are my world nothin is gonna happen to them I can assure u that I would never jeopardize their safety or do them any harm ok M.M.: Good Night” 178 .

M.M. explained that she was concerned T.M. would touch their daughter, Tx., inappropriately if she remained in bed with him. On February 26, 2016 T.M. had Tx. in his care. He took a photo of her in the bed with him. The photo prompted the Facebook exchange which became Exhibit 7 on the trial. 179 . A series of undated text messages from T.M. to M.M. was shown to her. They stated: T.M.: Im sorry for all the damage i have caused you, i feel terrible I want things to be good From this day forward i will make a better effort and stop doin shit.

I love you and i really want this to work badly I am really gonna try hard from this point forward to better control my sexual impulses. Im gonna appologize in advance if u wake up and im not beside you. Srry im such a sexual person but i need to respect ur space and take care of business on my own. Just know that im very sexually attracted to you and i always want to be intimate with you. Ill try hard and if we can be more intimate with each other i feel like we will be able to conquer this with ease.

Srry that the intimacy is a big part of things for me i know you love me and i know that if we stick together we will both live a very happy life filled with love and good memories. I love you always M.M. you are my true” 180 . At the time these texts were sent, M.M. and T.M. were seeing counsellors individually and together. They both had seen M.M.’s doctor as well about their relationship problems. 181 . A further series of messages from T.M. was shown to M.M. sent November 16, 2015.

They are reproduced below: “T.M.: You know when we started dating i told you how i like it every day i dont understand how you think just shutting me out all the time is gonna help the situation You dont get it im horny all the time if this is gonna get better i have to get some much needed attention i feel neglected Like fuck we havent had sex for ovee a month how can you expect that i dont want to do it with you like come on Im a horny person why cant you accept that like you used to and give me some attention that im seeking Like this is the most insane fuckin shit all i need is for you to fuck me like you did when we met thats the solution to all this bullshit You keep me happy in bed all thesr problems go away I dunno how you cant see this I have needs to and they” 182 .

M.M. clarified that “it” meant sexual intercourse. “Problems go away” signified the end of T.M. touching M.M. in her sleep. M.M. confirmed that she made no alterations to the text messages she received from T.M. 183 . On May 5, 2016, T.M. messaged M.M. as follows: “T.M.: M.M. plz slow down don’t leave me again, I can’t lose you again. You want me to stop this shit I will, I swear on the kids it will not continue. I’ve been tryin super hard to be better at home with the kids and with helpin around the house and u even said that I was makin a better effort.

Plz be patient with me I know u have given me chances but honest to god I want my family to stay together. I need you to be part of my life I don’t think I would have the drive to

continue without you. I love you M.M. very much so please rethink this ok I can change I have only had one session at therapy and we didn’t really get into much with her. I’ll admit I need help yes, but please don’t abandon me again I need ur support to get through this ok. I’m fucked up ‘cuz of what T. did to me and C. and I’m sorry that as a result I’m now hurting you. I swear to god please don’t leave I will make a better effort ok I can’t live my life without you, ur the love of my life. I’m sorry I’m really damaged inside and fucked up mentally and now I’m affecting you. I’m really sorry M.M.

I don’t know how to deal with this issue. The therapist told me to watch porn but like fuck it takes me hrs to do my thing. I swear I’ll try hard to stop this shit, I really need ur help with this. Without you I have no one to support me or be there for me as I battle this demon inside me. Plz take some time to think, don’t leave I can get better and I’m certainly goin to try I need ur support M.M.” 184 . In terms of their evidence, M.M. confirmed that the home T.M. and she lived in together was solely owned by T.M. M.M. believed that a mechanism existed to put her on title.

A lawyer was contacted to achieve this, but it never happened. 185 . M.M. explained that T.M. was not a heavy drinker. It was unusual for her and T.M. to drink during the week. Once a month, M.M. would go out for a night with her girlfriends. Anything above four drinks and M.M. would feel intoxicated. T.M., she reckoned, was the same. He would be feeling the alcohol at four drinks as well. 186 . M.M. denied any hard drug use. She admitted to trying them in 2012. She did not like them. She did not go back to using them. 187 .

M.M. confessed to having an intimate relationship with S.B., an individual connected to T.M.’s […] business. M.M. testified she always had receipts for cash paid to S.B. When pressed in cross-examination, she acknowledged she did not have receipts for almost $10,000 paid by her to S.B. 188 . M.M. conceded that T.M. and K.F. would butt heads when they lived together from July 2014 to August 2015 approximately. M.M. was not aware of any sexual incident between T.M. and K.F. at the time. It was not until the counselling sessions in October 2015 that M.M. learned what had occurred from K.F. 189 .

M.M. agreed that she knew little, if anything, directly about what happened to K.P. M.M. went to bed. She saw nothing herself. 190 . M.M. acknowledged that her recollection from the night at Exciters was that N.P. and K.F. had a lot to drink. 191 . M.M. was clear. She thought T.M. was awake when she saw him touching N.P. on the couch in the living room. She had no recollection of T.M. being asleep on the couch with N.P. She thought he was conscious. 192 . M.M. concluded that T.M. must have gone back downstairs to N.P. after he followed M.M. to bed.

She deduced this having spoken to N.P. over the phone the next morning. M.M.’s first instinct was to record T.M.’s behaviour. She was already beginning to grow suspicious of him. She described T.M. as “incoherent” and “out of it” during the recording session. He was not responding. He was “not fully present.” This state, M.M. opined, was brought on by alcohol intoxication. She did not believe T.M. was sleeping, because he was talking to her. She conceded, however, she could not see his eyes. 193 . Needless to say, M.M. was disturbed by what she was witnessing. She wanted T.M. to leave N.P. alone.

She did not remember grabbing and squeezing his testicles to force him to stop. She did not tell T.M. at the time that their relationship was over. 194 . M.M. did not deny that she could have been passed out in her daycare office prior to witnessing the incident involving T.M. and N.P. on the living room couch. She denied that she called T.M. a “scum bag.” She was steadfast that what she saw was not consensual. She stated when challenged, “You can’t give consent when you’re sleeping.” She did confirm that she asked N.P. if she thought she had sex with T.M.

N.P. said, “No!” N.P.’s account led M.M. to believe that N.P. awoke to T.M. touching her. N.P. estimated she awoke around 5:00 a.m. to T.M. touching her. The touching, in M.M.’s opinion, was nonconsensual.

195 . M.M.’s impression was that N.P. did not want to deal with the situation. M.M. denied that she offered to support N.P. in any way if N.P. wished to go to the police. M.M. filed the incident away and forgave T.M. 196 . M.M. recounted that S.P. came to visit her a couple of times in 2014. She confirmed that S.P. did tell M.M. that T.M. “raped” her, but gave no further details. S.P. explained that she got the help she needed and moved on. M.M.’s reconnection with S.P. a couple of years later came about because M.M. gave a mutual friend her telephone number to pass along to S.P. 197 .

M.M.’s recollection of the incident involving S.P. was that T.M., S.P. and she had a few glasses of gin and tonic. T.M.’s nocturnal transgressions had already begun by 2013 when M.M. estimated S.P.’s visits occurred. M.M. did not warn S.P. of the risk. As M.M. explained it, she did not think T.M. would behave that way toward anyone else but her. It was then pointed out to her that the incidents involving K.P. and N.P. would have already happened. M.M. did not deny this. 198 .

M.M. testified that S.P. told her – after they resumed contact. “I hope you never have to see my statement.” M.M. maintained that she really has no idea what happened to S.P. M.M. could only assume one thing. 199 . MM. did recall joking about a threesome before they all went to bed. She could not remember in which order they all retired for the night. S.P. is a lesbian. M.M. clarified that neither she nor T.M., to her knowledge, has engaged in a threesome. M.M.’s best recollection was that T.M.’s incident involving S.P. occurred in June 2014. 200 . M.M. denied that there was any excessive alcohol consumption.

She could not say with any certainty how much alcohol T.M. had to drink. 201 . M.M. maintained that T.M.’s nocturnal transgressions against her were occurring at their peak at a frequency of two to three times per week. While she was pregnant, she did not want sex. This was a problem for T.M. She was running a home daycare and getting up at 5:30 a.m. 202 . M.M. had told T.M., that if he wanted sex, he should try to engage her before she fell asleep. There came a point, however, where M.M. felt that T.M. was not trying to wake her, and wanted her to remain sleeping. 203 . M.M. recalled that T.M. often worked late.

He would do side jobs. As a young couple, they needed the money. 204 . M.M. described herself as a deep sleeper. She reckoned T.M. was a very good sleeper himself. He liked to have sex when he went to bed because it helped him sleep. Generally, they went to bed together at the same time around 10:00 or 11:00 p.m. but on occasion, T.M. would stay up playing video games. She wore loose fitting clothes to bed. T.M. just wore boxers. 205 . When T.M. and M.M. separated initially in October 2015, M.M. had just learned of the incident involving her sister, K.F. That was M.M.’s tipping point.

M.M. could tolerate her relationship issues, but not when they extended to her sister. 206 . By March 2016, M.M. was open to reconciling to see if they could sort out their problems. They were going to counselling individually and jointly. Counselling did not begin until T.M. resolved to tackle the problem. The tone of their conversation at the time was in the vein of T.M. trying to win M.M. back. 207 . T.M.’s admission to penetrating M.M.’s anus came, she thought, during a period of separation. She surmised she was upset in the morning. He likely asked her why. She was not angry.

She was not rubbing it in his face. He was apologetic. 208 . T.M.’s problem according to M.M. began to manifest itself in a pronounced manner in 2013. M.M. could not recall the first time it occurred. If he woke her, there was no problem. However, the fact was, to M.M.’s mind, he did not want to rouse her. She would wake

up to being violated where no consent was given. There was a pattern emerging. It started slowly, but increased to two to three times per week. She had no recollection of any incident occurring prior to 2012. However, when she was pregnant, he would not want to wake her because he knew what her answer would be. From 2007 to 2012, he would awaken her. There was no problem. 209 . Post 2012, M.M. would wake up in the middle of the night to T.M. sexually touching her. She wanted to find a solution. She wanted their relationship to work, but she could not figure it out.

There were times even when she would have consensual sex with T.M. before falling asleep only to wake up later to being inappropriately touched. If it happened multiple times, she would leave their bed. 210 . M.M. would put an end to T.M.’s touching by telling him to stop. He would immediately. He would mumble something and roll over. Periodically, he would be upset by her having shut it down. She denied that T.M. ever responded with words to the effect of, “This is what you get,” or “I’ll show you.” She did agree however that she was becoming exasperated with the situation. 211 .

M.M. agreed that she did research on the internet to try to understand T.M.’s behaviour. However, she did not investigate parasomnia or sexsomnia until much later. To M.M., that would not have made sense. T.M. was fully admitting to his conduct the next day saying things such as, “Yes, I know it’s wrong,” “I’ll stop,” and “I won’t do it anymore.” 212 . One of the counselling suggestions was that T.M. should just masturbate. T.M. was open to whatever ideas when M.M. and he were separated. 213 . M.M. only became aware of sexsomnia after T.M. had been criminally charged.

She learned that this was a phenomenon the defence was looking into. M.M. discounted this possibility. She explained that she would on occasion pretend to be sleeping to see how far T.M. would go. When she would resist, he would roll over and pretend to sleep. Sometimes he would keep his eyes closed. Sometimes he would move away. M.M. would never allow him to take it to the point of inserting his fingers in her vagina, or performing oral sex upon her. 214 . In terms of the actual counts of sexual assault T.M. was facing, M.M. explained that she could not recall the dates for the first two.

However, May 4 and May 14-15, 2016, she remembered very well. She could resort to her text messages to find the actual dates. 215 . Regarding the May 4, 2016 incident, M.M. believed T.M. was awake because it seemed to her as though he wanted her to stay sleeping. She conceded she did not see his eyes prior to pushing him off of her. 216 . Regarding the May 14-15 2016 incident, M.M. confirmed that her relationship with T.M. was rocky at that point. There had been physicality and jealousy issues. 217 .

While on her ‘girls night out,’ M.M. estimated she had four to five doubles of vodkas between 6:00 or 7:00 p.m. and 1:00 or 2:00 a.m. By the time she returned home at 4:30 a.m., she was “pretty sober.” 218 . T.M. wanted to fight. She wanted to go to bed. She gave up trying to go to sleep on the couch. She agreed to go to bed with T.M., but only if he let her sleep. She told him to promise to stay on his side of the bed. He promised he would. However, she awoke to his fingers inside her. He called her a “cunt.” He told her he had been checking to see if she had had sex. 219 .

M.M. was adamant that she put a stop to what T.M. was doing to her. She was “pissed.” Not often did T.M. call her a “cunt.” She was surprised by it. She knew T.M. was definitely awake at the time. 220 . M.M. strongly disagreed with the suggestion put to her that T.M. was in a parasomnic state for the majority of the incidents when he sexually touched her. She pointed out that he admitted what he was doing and it was wrong. She agreed that at times, messages can be delivered that the sender does not mean. Indeed, it was possible that T.M. might say things to make her feel better, or to try to get back with her.

It was also possible that he did not want to do these things to her and that is why he was sorry.

221 . The February 2, 2016 text exchange (Exhibit 7) was shown again to M.M. She agreed that T.M. would never deliberately sexually assault his daughter, Tx. She conceded that she was asking T.M. to take precautions. She allowed for the possibility that he may not have been in control of all situations where she was sexually touched by him. However, she was sure that his use of the word “angry” referred to how he felt when she would not have sex with him. 222 . Regarding the May 15, 2016 incident, M.M. was consistent that there were four very quick punches delivered by T.M. to her pubic area.

She was wearing the towel, so his fist would have contacted it first. The punches were forceful enough to hurt. She slapped his face in response. She did not remember if she knocked his glasses off. 223 . Regarding May 24, 2016, M.M. did not think T.M. was leaning into her vehicle when she sped off. He was standing on the sidewalk at the time. She could have run over his toe. She fully agreed she was frustrated with him because he had reneged on his promise to look after the kids. M.M. knew that the police would show up at her house that night. 224 .

When the police did come to her door, she was told of potential criminal negligence and dangerous driving charges. She then decided to speak to Cst. McGrath after T.M. left. She also provided a written statement. A few days later, she provided an ‘in person’ interview at the police detachment. In the interim, she spoke to her sister, K.F. and K.P., but not N.P. or S.P. She agreed that she brought up N.P.’s name to Cst. McGrath. 225 . Over the entire course of their relationship, M.M. has never seen T.M. sleepwalk or sleeptalk. Nor had he or his family members ever disclosed a history of his doing so to her.

She did concede that she has woken up to him masturbating a few times. However, M.M. has never believed that T.M. was sleeping when he sexually touched her. Nor did T.M. ever say that he was asleep when M.M. and he attended counselling together about their issues. Defence Witnesses: T.M.: 226 . T.M. lives with his current partner at the residence he previously shared with M.M. in XX. He is solely on title. He is an […] by trade. He was fully certified in 2010. He began running his own business in April of 2014.

His new partner, L.B., works with him there doing the bookkeeping and appointments – essentially fulfilling the role M.M. once did. 227 . T.M. cares for his two children, Tx., age 8, and J., age 5, on a week about basis with M.M. In spite of his criminal charges, this arrangement appears to have worked out well. 228 . Since childhood, T.M. has had problems with sleeping. He would toss and turn trying to fall asleep. He would talk in his sleep. He recalled these were ongoing issues throughout his childhood. Several people have commented to him about these behaviours they have witnessed. 229 .

T.M. estimates he gets between five and six hours of sleep per night. Ideally, he would like to have eight to feel rejuvenated for the next day. 230 . T.M.’s current understanding of his difficulties with wakefulness is that he suffers from sleep apnea. He understands that he stops breathing during sleep on average nine times per hour. 231 . T.M. has one sibling, a brother, who always talked in his sleep too. They shared a room from the time they were toddlers. T.M. frequently observed this phenomenon in his brother. 232 . T.M. is aware that he has had a handful of sleepwalking incidents as a child.

He would wake up, but not in his bed. More recently, when he was still living with M.M., he began to have nighttime incidents too.

233 . T.M. recalled meeting M.M. when he was 19. In February 2007, they started dating. It was common for them both to drink and party on weekends. When their daughter was born in 2010, he drank far less. He restricted that activity to special gatherings and birthdays. It became much less of a regular occurrence. 234 . Usually, T.M. would only drink beer. He could easily drink a dozen standard bottles over the course of an evening. He would commence drinking at dinner time, and it would progress to bedtime. If he was partying, the drinking might continue to 1:00 or 2:00 a.m. 235 .

At present, T.M. does not consume alcohol at all. He followed his doctor’s suggestion, and has stopped drinking altogether. 236 . T.M. is a regular user of marijuana. He smokes this drug daily. He has used it throughout his relationship with M.M. T.M. and she started using near the beginning of their time together as a social activity with friends. He found it helped him to fall asleep as well. 237 . Around the Christmas season of 2015, he stopped smoking marijuana. However, later into 2016, he started using the substance again. He still relies on it as a sleep aid.

He will smoke half an hour or an hour before bed. If he does not, it can take him an hour or two to fall asleep. 238 . In early 2017, T.M. did seek medical assistance for his sleep issues. His family doctor made a referral for him, but it did not pan out. Thereafter, he sought out the assistance of Dr. Fedoroff. 239 . T.M. attributes his sleeplessness to worries about work. He is meticulous in performing his duties. He was inclined to working long hours. At night, his mind would turn to any possible oversights in performing his duties. 240 . T.M. met M.M. through her friend, S.L.

They made plans to attend a ringette game. They did and the relationship progressed rapidly thereafter. By February of 2007, they were renting together a two bedroom apartment in XX. They lived in another apartment and with M.M.’s father in the years following. T.M. noted in passing that there were adultery issues throughout their relationship. 241 . When he acquired their house in September 2011 in XX, T.M. described their relationship as being on a high. M.M. opened her home daycare. He was working for a car dealership in town. They had settled nicely into their routines. 242 .

Regarding the incident with N.P., T.M. recalled that it occurred before his son was born. He believed the time of year to be spring of 2012. N.P., K.F., M.M. and he began having drinks at his home around 6:30 p.m. They were getting ready to go to a local bar, Exciters. He estimated that he had four or five beer before walking to the bar at 11:00 p.m. He was not paying attention to the level of consumption for anyone else. He believed they all walked together. 243 . T.M.’s recollection was that the four of them met up with M.M.’s father and his girlfriend at the bar.

At some point, N.P. and K.F. left before M.M. and he did around last call. 244 . T.M. and M.M. spent their time at the bar mostly with her father and his girlfriend. He had met N.P., but they were not really acquainted. He did know that she drove a Dodge Avenger. He told her he could help her if she ever had any trouble with it. 245 . When M.M. and he arrived home, there was no flirting between N.P. and him. He had little recollection of what he drank at the bar. He was so intoxicated by the time they decided to leave that he did not know where the coat check was. 246 . M.M. and he, T.M. thought, took a cab home.

It was a short drive of five to ten minutes to get to his house. When they arrived, he told M.M. he was going to get ready for bed and he would wait for her. He went straight up. He believed M.M. was getting blankets for N.P. and K.F. As he went upstairs, he would have to pass by the living room to get to the bedroom. He believed the only light on in the

main floor would be in the kitchen. 247 . He did note that N.P.’s car was in the driveway. He expected she was in the house. 248 . He waited upstairs for 20 minutes to half an hour for M.M. She did not come up. He went downstairs to look for her. He noticed along the way that there was a person on his couch. He could not tell if it was N.P. or K.F. 249 . He found M.M. on the floor at the rear of the house in the daycare area passed out. He suggested she should come upstairs for a “quicky” before bed. He believed that M.M. mumbled to him – “Go bug, K.” He followed M.M.’s instruction.

He assessed himself as heavily intoxicated at this point. 250 . He laid down on the L-shaped couch in the living room and fell asleep. He believed he was on one half, N.P., who he later recognized, was on the other half. Their heads met at the corner. 251 . T.M. explained that his intention was to wait for M.M. to go to bed. He woke up to M.M. screaming at him. She had hold of his testicles. She told him, “It was over. They were done. Stay on the couch. Do not come to bed.” 252 . M.M., T.M. testified, kept her grasp on his testicles for “a good 15 seconds” – squeezing them. He felt very uncomfortable.

It was quite painful what she was doing to him. 253 . T.M. asked M.M., “What’s going on?” The only response he got was “We’re done.” She went to bed. He stayed on the couch and fell back asleep. 254 . T.M. was not sure how long he was sleeping for, but to his surprise, he woke up to someone performing oral sex upon him. He asked, “What’s going on?” N.P. lifted her head and asked him, “Isn’t this what you wanted?” 255 . T.M. laid there and let N.P. continue what she had been doing. After a few minutes, N.P. took her pants off.

T.M. and she had sexual intercourse in a few different positions, but for most of the time, he remained seated on the couch. 256 . T.M. wondered how he could have sex still. He speculated whether he was numb to the pain. The sex, he testified, continued on for 90 minutes to two hours. He could not recall whether he was falling asleep with her on top of him. He did recall being “in and out.” 257 . N.P. asked if he was going to have an orgasm. He told her he was too intoxicated to climax. N.P. asked him to ejaculate in her mouth. T.M. explained that he was so drunk he could not even come close to that point. 258 .

T.M. estimated that N.P. left his home at 5:00 a.m. She asked him not to say anything to M.M. N.P. was K.F.’s friend. K.F., of course, is M.M.’s sister. 259 . After N.P. left, T.M. fell back asleep on the couch. K.F. came to ask him later where N.P. was. All he said was that she left. M.M. got up shortly after this. 260 . T.M. believed that N.P. told M.M. later that he touched her. When questioned by M.M. and K.F. about that, T.M. told them he could not recall doing so. 261 . T.M. never told M.M. the truth about what, he testified, had happened between N.P. and him.

He went along with the “assumption” made that it was alcohol related.

262 . T.M. denied that he ever saw any video footage of what he was doing with N.P. He confirmed that M.M. did verbally confront him with it. The incident was left in the past. No suggestion was made to him to seek out counselling or treatment. M.M. was soon after pregnant with their son, J. He was born […] 2013. 263 . Regarding the incident involving K.P., T.M. pointed out that they always got along. He was not sure whether it preceded or came after the incident involving N.P. He recalled meeting D.H. before going to T.T.’s place. K.P., D.H., M.M. and he all had drinks together in T.T.’s garage.

They took a cab back to his place. 264 . Upon arriving home, M.M. went upstairs and got the bed ready for D.H. and K.P. He stayed downstairs. D.H. and K.P. went upstairs. K.P. came back down a while later. T.M. asked if she wanted to smoke a joint. They both fell asleep thereafter. 265 . T.M. believed he had six to ten beer at T.T.’s place. He thought K.P. had already been drinking before she consumed more at T.T.’s. T.M. assessed himself as “definitely intoxicated” that night. He may have smoked a joint or two at T.T.’s as well. 266 . T.M. explained that it was not uncommon for K.P. and him to share a joint.

When they fell asleep, they were seated together on the L-shaped couch – he was on the portion which did not have its back against the wall. 267 . When T.M. woke up, K.P. was gone. He was “pretty sure” she had gone to bed. He woke up in the morning in his bed beside M.M. 268 . They all got up at roughly the same time. They took T.M.’s truck to retrieve their vehicles left at T.T.’s. D.H. did not say anything, nor did K.P. He discussed the ‘incident’ with K.P. a day or two later. 269 . He believed all were feeling the effects of the alcohol the morning after. 270 .

When discussions about the incident occurred, T.M. explained he did not understand what happened. He felt badly; however, he had no recall of having touched K.P. inappropriately. He denied that M.M. and he talked about any pattern of behaviour he was exhibiting. 271 . Regarding S.P., T.M. recalled seeing her regularly before his daughter, Tx. was born in 2010 – less so afterwards. He did recall a visit she made to his place one weekend in 2014. 272 . He remembered a ‘stay at home’ evening on this occasion when S.P., M.M. and he, perhaps others as well, were drinking in the den.

He believed they smoked some marijuana too. 273 .

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