R. v. J.L., 2024 ONCJ 72

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. J.L., 2024 ONCJ 72 DATE: January 22, 2024 COURT FILE No: 20-1220 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 : HIS MAJESTY THE KING -AND- J.L. Before Justice M. G. March

Heard on January 30, April 3, July 17, August 21 and September 27, 2023 Reasons for Judgment released on January 22, 2024 Ms. Goher Irfan……………...………………………..…Counsel for the Provincial Crown Mr. Forest Poff-Smith..………………………………………………………Counsel for J.L. March, M.G., J. : Introduction 1 . J.L. stands charged that between January 1, 2014 and December 31, 2018, he did commit a sexual assault upon K.M. contrary to

section 271 of the Criminal Code of Canada (the “ Code ”). 2 . For oral reasons given January 30, 2023, I dismissed an application brought by the defence under

section 276 of the Code attempting to adduce evidence of the complainant’s prior sexual history, which was the not the subject matter of J.L.’s outstanding charge. 3 . At the outset of the trial proper, J.L., through his counsel, admitted the span of dates over which the alleged offence could have been committed, the jurisdiction of the Court to hear the matter, and the ability of K.M. (now K.T. following a change to her surname) to identify him as the accused perpetrator of the sexual assault. 4 .

As with so many criminal trials, the outcome in this one will turn on an assessment of the credibility and reliability of the evidence given by all witnesses, be they called by the Crown or defence. The Relevant Evidence K.T. : 5 . When K.T. gave her evidence on November 28, 2022, she was 32 years of age. She was on maternity leave from her employment with a local school board, where she is employed as an Early Childhood Educator. 6 . K.T. is the mother of five children. J.L. is the father of one of them, her son, B. 7 . K.T. and J.L. met over an online dating platform in either 2013 or 2014.

After six months of seeing one another, K.T. became pregnant with B. just before Thanksgiving 2014. According to K.T., J.L. and she never cohabited. They always lived in separate homes. J.L. lived with his parents for the duration of their relationship. 8 . K.T. recounted that J.L. began sexually assaulting her while she was pregnant with B. and “very sick”. On the first occasion it happened, J.L. told her one morning that, “The sex was really good last night.” He then laughed and kept going on about it. She asked, “I had sex with you last night?” She did not know what to do. She just “dropped it”. 9 .

On other occasions, K.T. would wake up during the night to J.L. with his “hands inside [her] vagina”. He would just be touching her and masturbating. She would be lying on her left side. He would be behind her. He would be fingering her, while he had his hand on his penis, stroking it up and down. She estimated that this type of event occurred more than 20 times. 10 . Upon waking, she would be startled but could see what he was doing. She would get angry and make him leave her home. He would refuse. He would then tell her he loved her, and he wanted to stay.

It was not until she threatened to call the police that he would leave. 11 . She would also awaken repeatedly to him with his penis inside her while she was living on H. St. in Pembroke between March 2015 and December 2018. He would be on top of her. Her clothes would be either removed or pushed to the side. She would tell him,

“Stop. Get off me.” He would not. She would try to push him off, but he was very heavy. 12 . During one such incident, she told him to get off. However, he kept going for a couple of seconds more and ejaculated inside her. She had no idea what she was wearing before falling asleep, but she was naked when she awoke. So was he. He then got up and walked away. 13 . She was pregnant with B. at the time. M. and C., two of K.T.’s older children, were also living with her then. 14 . As K.T. put it, “He expressed satisfaction, and got up . . . just like nothing happened.” 15 .

K.T would tell J.L. after such incidents, “You can’t do that. You have to stop.” 16 . J.L. would respond that he was sorry, and he would not do it anymore. A week or so would go by and he would comment, “Look, I’m getting better.” Then he would do it again. The pattern continued. 17 . K.T. lamented, “Every time it played out like that.” 18 . She explained that she remained in the relationship with J.L. because he kept telling her he loved her, and it would not happen again. 19 . The last occasion of unwanted sexual touching occurred in June 2018. K.T. had been out to socialize with her sister, A.V.

J.L. was caring for the children, B., M. and C. 20 . At that point, in K.T.’s view, J.L. and she were no longer in a relationship. As K.T. described the situation, “It was no longer good”. They had separated in February or March of 2018. 21 . K.T. fell asleep on a sectional couch in the living room of her home. She woke up to find J.L. performing oral sex on her. 22 . She explained that she had been working earlier in the day, specifically a Friday. She estimated that she got off between 4:30 and 5:30 PM. J.L. was employed at a local sawmill at the time. 23 . He came over before K.T. and her sister went out.

She remembered leaving her home around 8 or 9 PM. She arrived back around 12:30 or 1 AM. 24 . Upon arrival, she thanked J.L. for babysitting the children. He told her he wanted to go upstairs to say good night to their son, B. She fell asleep while waiting for him to come down. 25 . She recalled that she had been lying flat on her back. Her left leg was hanging onto the floor. She had been wearing a dress. When she awoke, she realized her underwear had been removed. 26 . K.T. stated that J.L. was holding her vagina open and licking it. 27 . As she regained consciousness, her first reaction was one of panic.

She exclaimed, “What the fuck!” She then told him, “Get the fuck out of my house.” 28 . He just left. He did not say anything. 29 . K.T. did not ever confront J.L. again thereafter about the unwanted sexual touching. 30 . In terms of access to their son at the end of their relationship, J.L. started seeing B. every second weekend, but it did not go well. He then decided that he would only visit with B. for one to two hours maximum per week. 31 . Whenever J.L. came over to visit, K.T. would leave. His access to B. always occurred at her home. He explained to her that he had no place else to take B. 32 .

Before K.T. spoke to police about the incidents in the summer of 2020, she disclosed to her sister, A.V., what had occurred and confided in her. A.V. was “like her best friend”. Ironically, J.L. would go to A.V. to complain to her about K.T.’s treatment of him. 33 . K.T. also told her father, D.M., that J.L. had “raped” her. She told her brother the same as well. 34 . K.T. elaborated that she went to police because during her next pregnancy with her daughter, E., the pressure on her body was causing her to have nightmares. She was feeling overwhelmed. 35 .

K.T. emphasized that she did not previously want to go forward with her allegations because J.L. and she were no longer together. She thought she could move on, but after the onset of the nightmares, it was just too hard. 36 . She found herself waking up, screaming and crying. Her pregnancy was progressing with more vaginal pressure. She sought assistance from a female massage therapist, but she would get sweaty and shaky. As she put it, “I couldn’t do it anymore.” 37 . Her decision to report the incidents to police coincided as well with J.L. attending at her home wishing to have access to B.

Their child, K.T. stated, would cry, scream and shut the door in J.L.’s face. The boy did not want to go with his father. 38 . Any communication between J.L. and K.T. at the time consisted only of texting. It was minimal. It strictly concerned B. 39 . Under cross-examination, K.T. indicated that she was unsure of who contacted whom over the online dating site to commence the

relationship between J.L. and her. 40 . She did nevertheless recall that their first actual encounter involved going for a snowmobile ride at his parents’ place on February 14, 2014. She denied that she told him she loved him that Valentine’s Day. Nor did he say that to her. Eventually, they did express those feelings for one another mutually, but she was not sure exactly when. 41 . She stated that she considered J.L. and her to be ‘boyfriend/girlfriend’ after a month of seeing each other almost every day. He would come to her house. He would stay overnight.

She estimated that this happened approximately 20 times. 42 . He began to develop a relationship with her children, M. and C, who were 6 and 3 years of age respectively at that time, but she disagreed when it was suggested to her by defence counsel that he was a caregiver to her children. She would be present as well, except when she was in hospital in November 2014 while pregnant with their child, B. That is when he began caring for them overnight. 43 . K.T. reckoned that she went out during the evening perhaps five to six times over the course of the four-year relationship she shared with J.L.

During those occasions, he cared for the children on his own as well. 44 . In June 2014, K.T. moved away from her residence on R.L. Road to an apartment on M. Street. J.L. continued to go see her almost every day and stayed perhaps 15 nights during the month with her. She maintained that he never moved in. Nor did he want to take on more of a role with M. and C. He did not bathe them, make their lunches, or take care of their everyday routine. As K.T. recollected, he did not “take his toothbrush with him”. Nor did she want him to live with her. 45 . K.T. described herself as an “independent person”.

She never asked him to help with the payment of her bills. She did not “need him to do any of that”. She maintained her autonomy intentionally. At the same time, she denied that she dictated the tenor of their relationship. 46 . She expressed to him how she felt about his practice of masturbation. She agreed that she may have told him that it made her sad, but this was much later into their relationship, perhaps at the two-year point. 47 . Around Thanksgiving 2014, she found out that she was pregnant with B. J.L. proposed marriage to her. She paused for a moment before answering. It caught her off guard.

She said yes. He had bought her an engagement ring. 48 . They told his family members, and they announced their engagement on Facebook. There was no secrecy about the status of their relationship; however, she could not remember when she told her own family. 49 . In commenting on her discovery that she was pregnant, K.T. candidly admitted that she was upset. She was not planning on it. She was not sure that she wanted more children. 50 . She had a conversation with J.L. and her father about continuing with the pregnancy. In the end, she decided she would not have an abortion.

She took J.L.’s wishes into account, but she agreed it was ultimately her decision. 51 . She reiterated that over the course of December 2014 to January 2015, the sexual assaults perpetrated by J.L. upon her began. 52 . Regarding the first alleged incident of sexual assault, K.T. confirmed that she would never have known anything about it if J.L. had not told her that they had had sex. She ventured that there were more than 40 occasions where he touched her sexually in some manner without her consent. They would break up, reconcile, and he would do it again. 53 . Time and again she would take him back.

She agreed she was the same woman who would not let him move in, and the same woman, who had repeatedly broken up with him. 54 . Equally, she agreed that there were only four instances during her evidence-in-chief where she testified to and recalled specific details about the assaults, namely:

a) the first instance when he told her about it, and which occurred sometime between December 2014 in January 2015,

b) his digital penetration of her while she was lying on her left side in bed, and about which she was unsure as to when exactly it happened,

c) the occasion between March and June 2015 when she awoke to him on top of her having sexual intercourse until he ejaculated, and

d) the June 2018 instance where she fell asleep on the sectional couch in her home and awakened to find J.L. having oral sex with her. 55 . Regarding the first ever event, K.T. could not say what she was doing beforehand. She remembered that she was quite sick at the time. 56 . With respect to the instances when she would awaken to being digitally penetrated, K.T. added that B. had been born. She situated it as starting somewhere between June and December 2015. It always happened during the night. She would threaten to call the police, if he did not leave her home then and there.

There were times she started to dial the number. She did not know if this scared him, but it made him leave. 57 . Concerning the occasion when he continued to have intercourse with her until he ejaculated, the only details she could add was that she was still pregnant. There was lots of sun in the bedroom when it occurred, and she did not discuss it with him afterwards. She did not think she could “handle it”. 58 . In recounting the incident on the sectional couch, K.T. reiterated that it occurred in June 2018. She had returned home in a cab after being at a bar with her sister in Petawawa.

She explained that she had not been sexually assaulted by J.L. since she broke up with

him in March 2018. She did not think it would happen again. Nor did she think it would have occurred the approximate 40 times it had in the past. 59 . K.T. went on to state that, even after the 38 th time, she believed J.L., when he promised he would not do it again. 60 . She clarified that she was a sound sleeper. She did not agree that she woke up while he was taking her underwear off. She did not regain consciousness until after this had occurred. 61 . K.T. went on to explain that at one point, she called off the engagement in consequence of the unwanted sexual touching. She gave him the ring back.

At that point, they had not made any wedding plans. 62 . On another occasion, it was J.L. who broke up with her, but she agreed that it was normally her who would call the relationship off. He would then initiate reconciliation and promise he would get better. However, the cycle would repeat. 63 . K.T. readily conceded that J.L. appropriately parented B. He would change his diapers, dress him and attend generally to his care. She added that she was in college shortly after B. was born, and subsequently, she was employed at daycare centres in Petawawa and in Pembroke. 64 .

When confronted that she was not telling the truth and that J.L. never sexually assaulted her, K.T. maintained that she was being honest when she gave her evidence about what he had done. 65 . Specifically, she denied that the incident on the sectional couch started with J.L. touching her leg while she was conscious. 66 . She maintained that it was J.L. who wanted to reduce his hours of access to their son, B. As she put it, “That’s all he could handle”. 67 . She was worried about B. having night terrors and randomly soiling his bed. She did not want this to recur.

It had stopped when J.L. was no longer seeing their child. 68 . She denied that her decision to go forward to police was motivated out of any desire to reduce J.L.’s access to B. To the contrary, they looked up what his monthly payment of child support should be together, and they made a decision based on that. 69 . She disagreed that J.L. wanted to play a greater role in caring for M. and C. He did see them for a while after separation; however, he then told her he did not want to see them anymore. 70 . She did not believe that J.L. would ever inappropriately touch the children, M., C. or B. 71 .

K.T. denied that J.L.’s decision to post a video of B. and himself on TikTok and J.L.’s refusal to take it down had anything to do with her decision to go forward with her allegations to the authorities. She pointed out that J.L. had uploaded many videos to TikTok, some of which she described as “creepy”. 72 . She agreed nevertheless that his refusal to remove the video from the TikTok platform occurred just days before she went to police with her complaint. Her reason for doing so, she maintained, was rooted in her nightmares about the unwanted sexual touching to which she had been subjected. 73 .

When placed on notice that the defence intended to call her mother, D.V., to testify about what she observed of her relationship with J.L., K.T. declared that she had not spoken to her mother in 7 years. 74 . By the time K.T. went to the authorities to speak of her allegations, she had already been with her new partner, N., for about a year. She did not remember asking J.L. to allow N. to adopt B. She did not think she had. 75 . During one of the breaks in the trial, K.T. was asked to review texts that she had exchanged with J.L.

She agreed that one of them made mention of whether he would be willing to allow N. to adopt B. However, this occurred after J.L. had stopped coming to see B. 76 . At no point did J.L. ever relinquish any of his parental rights to have access to B. 77 . K.T. disagreed that J.L.’s refusal to pay child support prompted her decision to go to the police. She pointed out that J.L. was paying. 78 . K.T. further denied that when she saw J.L. out on a date with a woman, jealousy drove her to go forward to police with her complaint. 79 .

In commenting upon the dynamics of the relationship she shared with J.L., K.T. rebuffed the suggestion put to her by defence counsel that she wanted J.L. to be at her beck and call, and that she treated him terribly. However, she did agree that she often called him “stupid”. She nevertheless maintained that she did not berate him in front of his family. 80 . She stated that she cut ties with J.L. for what he did to her. She did not fabricate the allegations she made against him. She kicked him out after he assaulted her. 81 .

In re-examination, she recounted that the breakdown in the relationship with her mother, D.V., occurred when K.T. was in her last year of college - around 2016. Her mother then reached out to her once via a message sent over the Facebook platform. K.T. did not respond. 82 . Thereafter, D.V. sent a long, hateful message to K. T.

A.V.: 83 . When A.V. testified on July 17, 2023, she was 36 years of age. She is the sister of K.T. 84 . A.V. was aware of the relationship shared between K.T. and J.L. Indeed, A.V. accompanied K.T. to the police station in 2020, when K.T. went forward with her allegations. 85 . A.V. offered that K.T. began telling her about what J.L. was doing in September 2018. A.V. knew it to be of a sexual nature. 86 . When describing K.T.’s demeanour at the time she was telling A.V. about the abuse, A.V. described her sister, K.T., as “not a very emotional person”. K.T. was not “upset” at the time. 87 .

For a long period, A.V. had been living away from Ontario. She returned in 2016. Her sister and she had been “on the outs”, but they made amends upon her return. 88 . Under cross-examination, A.V. maintained that K.T. did tell her about the allegations implicating J.L., but K.T. did not give her any details. 89 . A.V. did not remember exactly what it was that K.T. had said to her about the touching. 90 . A.V. went on to add that, at the time of giving her evidence, K.T. again had cut her out of her life. It was K.T.’s choice that they were not speaking. 91 .

A.V. offered that it was their shared past which led to the breakdown of their relationship. J.L. : 92 . When he began giving his evidence on July 17, 2023, J.L. indicated at the outset that he has a learning disability. He cannot read or write very well. He also suffers from “bad anxiety”. 93 . He recalled that he received help throughout his life at school as a result. 94 . He met K.T. on an online dating platform. They began talking to one another. He was aware that she then had two children, M. and C. Soon after their initial chat, he was introduced to the kids. Over time, he treated them as his own. 95 .

He described the relationship he had with K.T. as “good initially”. He believed it was during the first week of February that she came to his parents’ place for a skidoo ride. During this occasion, she said to him, “I love you”. This made him apprehensive. He began getting “red flags”. 96 . At the commencement of the relationship, C.’s father, J.V., was still in the picture. J.L. considered this to be strange. K.T. had told him that J.V. and she had broken up a few months prior. J.L. just shrugged it off and went with the flow. 97 . K.T. was then living on R.L. Road.

J.L. recalled that she had to vacate after a falling out with her landlord. She then moved to M. Street. 98 . As a couple, J.L and K.T. struggled financially. He described his relationship with her as “unhealthy”. Reflecting upon it, J.L. stated, “Every day it was something different with K.T.” 99 . In spite of their money woes, K.T. would go out on weekends and have her “alone time” with her sister. 100 . J.L. shared with K.T. that he thought she was “bipolar”. He also spoke to her parents about it. He added that he worked with her father at the sawmill. 101 .

As an example of why he thought she was bipolar, J.L. stated that K.T. would shout at him every day in front of his family or hers. Her household was always chaotic. She was “messy and dirty”. He is a “clean freak”. 102 . In his role as her partner, she expected him to make lunches and suppers for the kids, and to put them to bed. She wanted him to do all the chores, whereas he wished they could work as a team. 103 . Notwithstanding, J.L. did as she asked. As he put it, “I lived there”. In doing so, he wanted to make sure M. and C. were okay. 104 .

If he did not do as K.T. said, she would simply sit on her bed and watch Netflix. Ultimately, he would then give in and just do it because it would drive him crazy if things were not clean. 105 . Additionally, if J.L. did not take care of the household, K.T. would get mad and make him feel as though he was a failure. He would nevertheless put up with it because he loved her, and he wanted to be with her. 106 . While he was working, J.L. would rush home to pick up the kids from daycare. 107 . When his presence got to be too much for K.T., he would stay at his parents’ place.

He would not share his reasons for doing so with K.T. He did not want to hurt her feelings. 108 . Relatively soon into their relationship, when K.T. became pregnant, J.L. proposed marriage to her. She accepted. He bought her a

ring. They were engaged. At times however, J.L. noticed that K.T. would not be wearing her ring. When he asked her why, she told him she was mad with him. 109 . J.L. described K.T. as “emotionless”. She did not care. 110 . He lamented that he did not stick up for himself. He is too “easy-going”. 111 . Over the course of their 4 ½ year relationship, J.L. remembered that K.T. had moved three times. Her neighbours did not want to talk to her because she “always had a mad face”. 112 . J.L. testified that he had not seen his son, B., since K.T. levelled her allegations against him.

J.L was allowed no input into a first name chosen for B.; however, he was permitted to choose their son’s second name. 113 . J.L. shared that he felt like he failed as a father. He did not always have the money to adequately support his child, although he tried his best. He wanted to continue seeing B., but K.T. prevented him from doing so. 114 . Since she accused him of sexually assaulting her. Thereafter, J.L., due to his release conditions, was not “supposed to have contact with her”. 115 .

Prior to their separation and his being charged, J.L. told K.T. to stop going out every Friday and Saturday night after B. was born. She often went to the bar with her sister, A.V. J.L. wanted to spend more time with K.T., but she would refuse. 116 . She would then be out until 3 AM when the bars closed at 2 AM. It would not go well when J.L. pointed this out to K.T. As J.L. put it, “It was her way or no way”. 117 . J.L. explained that his mother would give him money “to get things” before she passed away. 118 . Regarding the TikTok video, J.L. recalled that K.T. was angry when she learned of it.

He maintained that there was nothing wrong with the video. Normally, he would not stand up to K.T., but on this occasion, he did. He received a call from the police some 6 or 7 days later. 119 . In the lead up to his arrest, J.L. was only getting two hours of access to their son, B. Initially, following the breakup, he was getting B. every 2nd weekend, but when he refused to pay child support at an increased rate of $450 per month, his access decreased. 120 . K.T. wanted him, he explained, to pay her $150 three times per month. 121 .

When he refused, his visitation rights with B. dwindled to two hours per month. 122 . J.L. testified that K.T. would get mad at him “for anything”. She threatened that she would get N., her new partner, to adopt B. This occurred shortly after J.L and she had broken up. She spoke of how B. was her son. J.L. had to remind her that B. was their son. Ultimately, K.T. abandoned any attempt to have N. adopt B. 123 . J.L. vehemently denied that he ever touched K.T. sexually or performed oral sex upon her while she was sleeping.

He did not put his penis in her vagina, nor “finger” her, nor engage in cunnilingus upon her while she was unconscious. 124 . J.L. identified the problem he had in the relationship with K.T. as his inability to “stick up for [him]self”. He wanted a future career as a police officer, but she always put him down and dashed those hopes. She drained him. He felt exhausted in her presence. 125 . All he wanted was to have a better job and “to be me” again. 126 . He likened being in K.T.’s presence to having “a chain over [his] body”. She exuded so much negativity, it eviscerated him. 127 . He was afraid of her.

He did not know what to do in her midst. He testified that he was “ruthless”. To him, ruthless meant gutless. He felt as though he had no control. He knows he is not smart. 128 . For much of his life, he felt as though people were putting him down. Fortunately, his family members were very supportive, but K.T. did not like for him to be around them. She thought his parents were “like the devil”. She told him not to go near them, and he listened to her. 129 . J.L. recounted that his mother passed away in May 2021. He was devastated by this. He only saw her once after she got sick. 130 .

Under cross-examination, J.L. confirmed that K.T. and he began dating around February 2014, and that B.’s birthday was June 26, 2015. 131 . He gave evidence that by this latter point, K.T. and he were living together, but for tax purposes, she did not want him to tell anyone. 132 . He fixed the date of separation as occurring during the month of April 2018. He surmised that K.T. kept him around thereafter because he was “like a maid”. His “stuff” remained at her place. 133 .

Notwithstanding, J.L. described the state of the relationship between K.T. during this period of April to August 2018 as “on-again, off-again”. Over the course of those four months or so, he would go see his parents “the odd day”. His lines of communication with them remained nevertheless open. 134 . When he did stay the night at their place, he would only be 10 to 15 minutes away from work. K.T. would still message him to

pick up the children from daycare. She would do that even though J.L. would take an hour to drive there, whereas K.T. was only five minutes away. 135 . In terms of his work

schedule at the sawmill, J.L. stated that his regular day spanned from 6 AM to 3:15 PM. It was 44 hours per week. Once finished his workday, he would stop at his parents’ place, have a two minute conversation with them, shower and “go get the kids”. This was a “fairly regular routine” for him. 136 . Even though K.T.’s workday ended around 5 to 5:30 PM, he would be the one responsible for collecting the children most of the time, although he conceded she would get them sometimes as well. 137 .

Essentially, he reckoned that he would have five minutes or so to converse with his mother, then he would be off to collect the children before 5:30 PM at daycare. If he was late, he would have to pay extra for the service. 138 . When challenged by Crown counsel that he was living with his parents, not K.T., J.L. denied this. He maintained he was not residing with his parents. He was with K.T. Even after April 2018, when they broke up, he was still with K.T. 60% of the time at her house on H. Street in Pembroke. 139 . J.L. could not recall when K.T. began living on H. Street.

Over the course of their relationship commencing in February 2014, she lived on R.L. Road first, then she moved to an apartment on M. Street and lastly, she resided on H. Street. 140 . J.L. conceded that it was during the time of K.T.’s pregnancy with B., who was conceived around Thanksgiving 2014, she began alleging that he was sexually touching her without her consent. He settled upon April 2015 as the time when this first began. She was upset when she complained to him about it. 141 . They were fighting every day. In his view, it was as though she wanted to control him, and “make [him] go nuts”.

He felt “like a robot”. His weight dropped to 150 pounds before he left. At the time of resuming and giving his evidence on August 21, 2023, after a break in the trial, he weighed 210 pounds. 142 . As a result of the stress in his life, J.L. attended counselling. 143 . His reaction to her allegations was to be scared, shocked and nervous. He thought about going to the police himself. One day he went to the Courthouse wanting to seek custody of B., but he was too afraid to say anything upon arrival. K.T. and he were then in a breakup phase of their relationship. He had given up.

He just wanted advice, but he did not know what to say. 144 . J.L. confirmed that K.T. raised the issue with him of his unwanted sexual touching of her on several occasions, but her accusations were simply untrue. 145 . Again, J.L. commented that “red flags” were raised for him throughout those times, but he did not end the relationship with her. 146 . He concluded that he stayed with K.T. in spite of her abuse because he loved her. They had a son together. Occasionally, he pleaded with her by asking, “Why would you say that? Why would you do this to me?” 147 .

He testified nevertheless, “I will always love her”. 148 . When the relationship did eventually end, there was one occasion that K.T. approached him seeking reconciliation. He told her no. He confronted her about the child support payments he was making to her. She told him he could buy his own groceries in response. 149 . J.L. explained that he was making $30,000 per year. They had agreed upon child support in the amount of $300 per month. He thought that was a fair amount to pay, but she wanted $450 per month. She reduced his time to see B. as a result.

He situated that dispute as occurring in November 2018. 150 . When pressed as to why he felt $300 per month was fair, J.L. testified he did not know why. He “just thought” it was fair. He added, “Whatever I have to pay, I’ll pay. I don’t hold grudges.” 151 . J.L. lamented that all K.T. wanted was money from him. On this last occasion when they were arguing over money, it was Christmas time. He explained he could not afford to pay what she was asking. He was struggling to make ends meet. 152 . J.L. placed the dispute he had with K.T. over TikTok in June 2020. 153 .

He vaguely remembered being arrested the first week of August 2020. When Crown counsel suggested to him the exact date of August 11, 2020, he accepted that that was likely correct. He thought it was a Monday. 154 . J.L. gave a statement to police on the day of his arrest. The voluntariness of the statement was not challenged by the defence. 155 . He explained that he was intending to go to work, but instead he went to the police station of his own volition. He offered that “my head was everywhere” upon learning that the police wished to speak to him. 156 . When asked by the arresting officer, Cst.

Rosano, if K.T. confronted him about his alleged sexual touching of her, he recalled that he responded to that question with one of his own, - “If I’m doing that to you, why are we still together?” 157 . He also queried of her, “What is your issue? What is your problem?” 158 . He acknowledged that he appreciated K.T. was accusing him of inappropriate sexual touching. However, he denied that he was, by putting such questions to her, not unwilling to turn things around and confront her as well.

159 . He agreed that by the end of their relationship, he was standing up to K.T. more often and challenging her more. He did not know how long such instances lasted. He would be upset with her at the time. 160 . Nevertheless, he maintained that she was controlling him every day. She limited the time he could spend with his family. 161 . He emphasized that she only confronted him about inappropriate touching when she was mad at him, but the fighting continued almost constantly. If she saw him happy, she would want to ruin it. By nature, he explained, he is “a happy-go-lucky” guy. She did not like that about him.

She would call him names. She would put him down. 162 . J.L. was adamant that he always slept at K.T.’s home while they were a couple. He had his own food for making lunches. He had a drawer with all his stuff in it. 163 . He denied that he was living at his parents’ place over the course of their relationship. 164 . He bemoaned the fact that K.T. was “controlling and brainwashing” him. To his mind, she wanted him to make more money, but he only had an “ordinary job”. Later, while giving his evidence, he exclaimed, “I don’t even know what brainwashing means”.

He added, “If I didn’t do what she wanted, she’d get mad at me”. 165 . However, he conceded when pressed by Crown counsel, that he did not feel “brainwashed by her sexually”. 166 . Nevertheless, he always felt as though he had his head down. His mind was “everywhere, everyday”. To belittle him, she told him he could not read notes. 167 . He felt the relationship ended in August 2018. The “on again off again” aspect of it existed from its inception in his view. 168 . He was saddened by K.T.’s habit of wearing the engagement ring when she was happy, and when she was not, she took it off. 169 .

He confirmed there were occasions when she threatened to call the police, once or twice, if he refused to leave her house. 170 . He acknowledged that he told police, while giving a statement on August 11, 2020, that he remembered an occasion when he left his parents’ place in Round Lake and went over to K.T.’s place. She was drunk. She was in a “nighty”. He could see her underwear. They were situated at both ends of the couch. She closed her eyes. He touched her leg and she woke up. He conceded that at no point did she tell him that evening that she wanted to have sex. 171 .

He agreed as well that when K.T. woke up, she was upset enough to say she was going to call the police. She was shouting at him. He left, and while driving home, he called her sister. 172 . He denied that this was the instance where, as K.T. testified, she awoke on the couch to him performing oral sex upon her. 173 . His evidence was that he forgot how often he was seeing B. after the breakup, although he was certain it was not regular. It had been every 2nd weekend until November 2018 when they fought about the amount of child support to be paid. His access then decreased to 2 hours per week.

For a while it was one hour per week. Eventually, there was none. 174 . Near the end, J.L. agreed that when he was still exercising access to B., K.T. was by that point living with her new partner, N. 175 . J.L. was adamant, when squarely challenged by Crown counsel that he “fingered” and “penetrated with his penis” K.T. while she slept, that he did nothing of the sort. 176 . Under re-examination, J.L. explained that he was always shocked and afraid when K.T. accused him of inappropriate touching. His mind went “berserk”. He stated that he would never do anything to hurt K.T., M. or C. 177 .

In sum, he did not do what she was saying he had. He always did and always will love her. D.V.: 178 . When D.V. testified remotely on August 21, 2023, she was terminally ill. She explained that she is the mother of K.T. D.V. confirmed that, in spite of her limited time, and K.T.’s awareness of it, they had not spoken since 2016. 179 . D.V. last attempted to communicate with K.T. over Facebook in 2019, but to no avail. 180 . D.V. described her daughter, K.T., as “the middle child”. From the moment K.T. became a mother in her late teens, the relationships in which she engaged had to be on her terms only. 181 .

D.V. ventured that K.T. cut her [D.V.] out of her life because D.V. was sick and could not care for K.T.’s children as a result. Shortly after D.V. “got off life support”, after being unconscious between March and April 2015, K.T. just gave up on her. 182 . D.V. was back in K.T.’s life for a brief period after D.V. regained consciousness. They began talking while D.V. was still in hospital in May 2015. D.V. then went to live with K.T. in June 2015 upon her discharge. 183 . At that point, K.T. was living on H. Street in Pembroke with her children, M. and C.

J.L.’s and her son, B., was later born near the end of that month. 184 . While living with K.T. and her children, D.V. came to know J.L. To D.V., at least initially, K.T. and J.L. seemed happy. J.L. looked healthy, but as time progressed, he appeared to her to be depressed. He lost a lot of weight. D.V. attributed this to the treatment he was receiving from her daughter, K.T.

185 . In D.V.’s presence, K.T. would call J.L. a “fucking idiot”. K.T. would tell him to get out. She would complain to him about how he is costing her money. He was not earning his keep through the help he offered around the house. 186 . In D.V.’s view, J.L. was constantly subjected to a litany of verbal abuse. He would “take it” when she was telling him how dumb he was. She would curse at him. She would call him down and criticize him incessantly. 187 . D.V. even noticed that her granddaughter, M., was beginning to learn from K.T.’s example, abusing J.L., hitting him and insulting him. 188 .

Often, J.L. would leave K.T.’s home crying. 189 . D.V. noted that J.L. behaved like an abused child. He acted as though he “was begging”. 190 . However, whenever K.T. needed something or his help, she would have him come back. 191 . D.V. conceded that her stay with her daughter, K.T., was brief. She explained that she left K.T.’s home because she could not stand it anymore. D.V. clarified that she moved in approximately a week before B. was born. 192 . D.V. observed that J.L. was not allowed to spend nights in K.T.’s home except for weekends.

D.V. surmised that this was because J.L. did not make enough money. 193 . D.V. spoke to J.L. about his need to “get out as quickly as he can”. It was not a healthy relationship he had with K.T. D.V. encouraged him to “go to Court for the right to see B.”. 194 . To D.V.’s mind, J.L. was simply incapable of acting on her advice. He was “glued to [K.T.]”. 195 . After D.V. moved out, J.L. and D.V continued to talk. He would come to her place bawling, but he would always go back to K.T. 196 . D.V. testified that she “never witnessed a happy time between them [K.T. and J.L.]”. 197 .

D.V. explained that her motive for testifying in J.L.’s support was for her grandchildren. They were caught up in the fray. Her daughter, K.T., treated her partners from failed relationships as “throw aways”. 198 . Under cross-examination, D.V. confirmed that she was released from hospital in June 2015. She was admitted in March 2015. Prior thereto, she had been “on again off again” in her relationship with her daughter, K.T. 199 . D.V. clarified that she spent the odd night with K.T. and J.L. prior to her hospitalization. She was clear that J.L. never lived full- time with K.T.

He only came over on weekends. 200 . Once she was released from hospital in mid-June 2015, D.V. confirmed that she lived with K.T. for a short period, perhaps a week thereafter. B., she agreed, was born on June 26, 2015. 201 . D.V. complained that K.T. did not help her. J.L. would prepare the meals for the household. D.V. was receiving chemotherapy and on medication. She lamented that she was lucky to get one meal a day. She was otherwise on her own. 202 . Meanwhile, K.T. would do her own thing and invite people over. 203 .

D.V. did concede that K.T. was in the eighth month of her pregnancy with B. when she moved in with her. 204 . D.V. recollected that K.T. was “irritated all the time”. D.V. grew depressed witnessing what she was forced to observe while living with her daughter. 205 . D.V. reckoned that the last time she spoke to K.T. was at the end of August or beginning of September 2015. At the time of giving her evidence, D.V. and her daughter, K.T., had not spoken in 7 or 8 years. 206 . Apparently, K.T. stole money from D.V.’s former partner, J.G., in Beachburg. This caused a rift in their relationship. 207 .

D.V. stated that K.T. never confided in her that J.L. was sexually assaulting her. Defence Position 208 . Defence counsel submitted that K.T. has a demonstrated history of cutting people out of her life for whom she no longer had any use. She did it to her own mother, as well as a host of former intimate partners. J.L. was no different. 209 . Her intention of eradicating J.L., if she could, was quite manifest when she asked him to allow her new partner, N., to adopt B. That she forgot she even made such a request of J.L. not only reflected poorly on her credibility, it disclosed how cruel she could be.

It did not phase her to ask a former partner to relinquish his right to parent. 210 . Additionally, K.T. was inconsistent in one critical aspect of her evidence. She apparently testified that she protested and said no every time that she was sexually touched by J.L. at night, whereas at another point in her evidence, she stated that she acquiesced and allowed it to occur on occasion. 211 . Defence counsel contended that she also had a motive to fabricate when J.L. defied her wishes and refused to take down the video he had made of their son, B. and him on TikTok. It was “the last straw”.

It was no coincidence that, shortly after his refusal to do so, she went forward with her allegations to the authorities.

212 . Furthermore, J.L. was always the weaker, submissive partner in the relationship he shared with K.T. He was expected to be at her beck and call. To a large degree, he was. He did what she said. K.T’s own mother, D.V., saw with her own eyes how K.T. treated J.L., the impact it had on him and how he responded. 213 . Without retaliation, he would suffer and endure her criticism and disdain for him. 214 . Despite the numerous breakups, J.L. always came crawling back to K.T. Even though he appreciated how controlling she was, he loved her. He obeyed her every word. 215 .

Defence counsel urged upon the Court to pause and reflect upon the likelihood J.L. would ever do anything as egregious as sexually touching her without her consent given the dynamic of their relationship. 216 . It was not until J.L. mustered the courage to stand up for himself that K.T. went to the police. Her ulterior motive in doing so was to reduce or eliminate J.L.’s access to their son, B. 217 . In contrast, J.L. spoke with complete candour and honesty in describing himself as what defence counsel coined “a doormat”.

His learning disabilities, his anxiety and his nervous disposition made him prone to others taking advantage of him. 218 . The defence urged upon the Court that the account J.L. gave was “facially unassailable exculpatory evidence” (see R. v. C.L. 2020 ONCA 258 at paras. 32 -34 ). 219 . K.T.’s evidence was also not credible in that she testified to having been sexually assaulted over 40 times, but she could only provide details of roughly a handful. Further, she was the dominant one in the relationship, yet she supposedly tolerated the nocturnal, sexual assaults. 220 .

Defence counsel argued that K.T. exercised the “nuclear option” when she saw she had lost control over J.L. Only then did she make her complaints to the authorities. Crown Position 221 . Crown counsel submitted that in proving the sexual assault offence with which J.L. was charged, the Crown need only demonstrate beyond a reasonable doubt an instance where he touched or applied force, without K.T.’s consent, for a sexual purpose. The Crown had succeeded in doing so. 222 . Even though a sexual assault complainant is not required to raise the hue and cry at the first available opportunity, K.T. did so.

J.L. acknowledged in his own evidence that she did. This occurred while she was pregnant with their son, B. 223 . While it is true that K.T. testified to an estimate of having been sexually assaulted on 40 or more occasions, the fact that she can only provide details of only a handful does not mean they did not occur. Rather, it is in an indication of her desire to be honest and accurate with the accounts she can provide. She forgot about many of the incidents because of their frequency, and because of the tendency of memory to fade with the passage of time. 224 .

Notwithstanding the number of times K.T. says she was sexually assaulted, she adequately explained why she did not end the relationship with J.L. as a result. She loved him. He was the father of her child, B. She hoped he would change. 225 . Crown counsel argued that K.T. was overall a credible witness. She remembered the important details of the first incident of being sexually touched while asleep and pregnant with B., as well as the last time she was sexually touched by him when she was asleep on the couch.

She was upset and angered at the conduct of J.L. whenever he took liberties with her while she was unconscious. She told him to stop. He promised he would, but in the end, he would revert to his old ways. His pattern of behaviour would repeat. 226 . On occasion, she became so incensed, she would threaten to call the police. She would begin to do so. This would prompt J.L. to leave her house. J.L., in his own evidence, confirmed that such events occurred. 227 . J.L.’s testimony about the last occasion on the couch simply involving a touch of her leg was wholly incredible.

The Court should reject that evidence. 228 . Furthermore, K.T.’s account of why she went to the police when she did made sense. She was pregnant again. She hearkened back to when the sexual assaults perpetrated by J.L. upon her began. Her decision to go forward to the authorities had nothing to do with a TikTok video, nor child support, nor a desire to cut J.L. completely out of B.’s and her life. 229 . The Crown negatived any suggestion by the defence that K.T.’s allegations were recently fabricated.

K.T. had mentioned it to her sister, A.V., as early as 2018, even though K.T. did not go into any detail about what had occurred to her. 230 . Contrary to the defence argument that K.T. was trying to eradicate J.L. from B.’s life, she genuinely bemoaned the fact that J.L. could not appropriately co-parent B. with her. He could not handle the demands of raising a toddler. 231 . Further, J.L. was inconsistent in how he testified about K.T.’s attempts at preventing him from having a relationship with his parents.

His own evidence disclosed his ability to spend time with his parents after work, and to overnight with them, as he wished. 232 . On a final note, Crown counsel argued that K.T. was able to respond spontaneously and truthfully to almost all challenges put to her by defence counsel in cross-examination. She conceded her mistake and oversight about her text to J.L. asking him to allow her new partner, N., to adopt B. 233 . In short, she testified honestly and accurately to the best of her ability.

The Issues 234. I must apply a W.(D.)1 analysis to the evidence adduced at J.L.’s trial. Clearly, the credibility of both J.L. and K.T. must becarefully assessed. Their reliability as historians for recent past events, although secondary, is worthy of some minor comment as well. 235. Essentially, in applying the law, I must acquit J.L., if I believe his testimony regarding the incidents in question after I assess theevidence as a whole. 236. If I do not believe him, but his evidence raises a reasonable doubt upon my assessment of the evidence in its totality, I must alsofind him not guilty. 237.

Even if I do not accept the evidence of J.L., nor does it raise a reasonable doubt, I must still be satisfied of his guilt beyond areasonable doubt based on the evidence which I do accept, if I am to find him guilty. The Law 238. In R. v. J.A. 2011 SCC 28, McLachlin C.J., as she then was, explained that a participant in sexual activity must be conscious forlegal consent to be obtained from him or her.

The Chief Justice expounded on the principles of consent as follows: [34] Consent for the purposes of sexual assault is defined in s. 273.1(1) as “the voluntary agreement of the complainant toengage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each andevery sexual act, negating the argument that broad advance consent is what Parliament had in mind. As discussed below, this Court hasalso interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]” (Ewanchuk, at para. 26). [35]

Section 273.1(2) provides a non-exhaustive list of circumstances in which no consent is obtained. These examplesshed further light on Parliament’s understanding of consent. [36]

Section 273.1(2)(

b) provides that no consent is obtained if “the complainant is incapable of consenting to theactivity”. Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to givemeaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau, (SCC), [1997] 2 S.C.R. 777; R. v. Humphrey (2001), (ON CA), 143 O.A.C. 151, at para. 56, per CharronJ.A. (as she then was).

It follows that Parliament intended consent to mean the conscious consent of an operating mind. [37] The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must beconscious throughout the sexual activity. Before considering these provisions, however, it is important to keep in mind the differencesbetween the meaning of consent under the actus reus and under the mens rea: Ewanchuk, at paras. 48-49. Under the mens rea defence,the issue is whether the accused believed that the complainant communicated consent.

Conversely, the only question for the actusreus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lackof consent or her revocation of consent for the actus reus to be established. 239. In R. v. Barton 2019 SCC 33, Moldaver J. set out the elements of the offence of sexual assault. He also addressed squarely thelegal meaning of consent in an intimate partners context.

He wrote: [87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubtthat the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault “if hetouches another person in a sexual way without her consent” (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mensrea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the persontouched” (R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 42). [88] “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in thesexual activity in question”. It is the “conscious agreement of the complainant to engage in every sexual act in a particularencounter” (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexualactivity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s.273.1(2)(e); J.A., at paras. 40 and 43).

Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract. Rather, it must belinked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and“the identity of the partner”, though it does not include “conditions or qualities of the physical act, such as birth control measures or thepresence of sexually transmitted diseases” (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57). [89] Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that thecomplainant in her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placedsquarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if thecomplainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple

(see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, orrevocation of consent, for the actus reus to be established (see J.A., at para. 37). 240. In R. v. Jaura 2006 ONCJ 385, Duncan J. succinctly and eloquently captured the role of the trier of fact in a “he says/she says”case such as this one. He reflected upon it in the following manner: [12] The assessment of credibility is not a science (R v Gagnon 2006 SCC 17 , [2006] 1 SCR 621) nor can it be reduced tolegal rules or formulae: R v White (1947) (SCC), 89 CCC 148 (SCC).

However, proper credibility assessment is closelyrelated to burden of proof. For this reason, an accused is to be given the benefit of reasonable doubt in credibility assessment: R vW.D. (SCC), [1991] 1 SCR 742 63 CCC 3d 397. Credibility must not be assessed in a way that has the effect of ignoring,diluting, or worse, reversing the burden of proof.

What must be avoided is an “either/or” approach where the trier of fact choosesbetween competing versions – particularly on the basis of mere preference of one over the other: R v Challice (1979) (ON CA), 45 CCC 2d 546 (Ont CA) cited with approval R v Morin (SCC), [1988] 2 SCR 345; see also R vChan (1989) 52 CCC 3d 148 (Alta CA and authorities cited therein).

Acceptance of a complainant’s version does not resolve the case.The court must still consider and weigh the defendant’s version and, if unable to reject it, must consider itself to be in a state ofreasonable doubt: R v Riley(1979) (ON CA), 42 CCC 2d 437 (Ont CA). The learned trial Judge then proceeded to consider each version in isolation and preferred the version of the complainant to that of theappellant. Having concluded that he preferred the complainant’s testimony to that of the appellant, he found that the Crown’s case hadbeen proved beyond a reasonable doubt.

With respect, we think that he erred in approaching the issue before him in that manner. Theissue before him was not which version of the evidence was true, but rather, on the totality of the evidence viewed as a whole, whetherthe Crown’s case had been proved beyond a reasonable doubt. It is not without significance that the trial Judge did not specifically reject the evidence of the appellant nor find his evidence to beincredible.

Yet, in this case the appellant could not be convicted unless his evidence on the issue of consent was totally rejected. [13] In assessing the credibility of any witness, including the accused, the existence of evidence that contradicts the witness isobviously highly relevant. For my

part I regard it as the single most important factor in most cases, though the relative weight given tothis versus other factors - such as demeanour, contradictions within the witness’s evidence itself, potential bias, criminal record or otherfactors - varies from case to case. No witness is entitled to an assessment of his credibility in isolation from the rest of the evidence.Rather, his evidence must be considered in the context of the evidence as a whole.

In a “she said/he said” case, that necessarily meansthat the defendant’s evidence must be assessed in the context of and be weighed against the evidence of the complainant (and viceversa): R v Hull (Ont CA Aug 4 2006 at Para 5): W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, theyprohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence ofCrown witnesses to that of defence witnesses.

However, such authorities do not prohibit a trier of fact from assessing an accused’stestimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of thewitnesses.

On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome ofthe assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused. [14] But the question remains whether, following such an assessment, a trial judge is entitled to reject the evidence of the accused onthe basis of a finding that the complainant is credible.

In the “she said/he said” cases, a line of authority is often cited for the propositionthat the rejection of the defendant’s evidence must be grounded in something other than or additional to, the opposing evidence of thecomplainant because to reject it for that reason alone would violate the principles stated above in paragraph 12: R v Maharaj (2004) (ON CA), 186 CCC 3d 247; R v SJD (2004) (ON CA), 186 CCC 3d 304; R v Dore (2004) (ON CA), 189 CCC3d 526 (Ont C.A.).

In this latter decision, the Court said: In his reasons, the trial judge reviewed the evidence of the two witnesses and cited the three-prong test in R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The trial judge then said that he found “the evidence of the accused incredible”. Inother words, the trial judge found the accused to be “incredible” based on the complainant’s believability.

This approach ignores theburden of proof. [15] It is beyond dispute that, in any other criminal case, rejection of the defendant’s evidence can be based solely on thecontradicting Crown evidence, particularly where the latter is scientific in nature or otherwise practically exempt from the usualcredibility assessments to which witness testimony must be subjected. For example, an accused’s denial of being present at the crimescene could surely be rejected if there is DNA evidence or a videotape putting him there.

[16] But what if the contradicting evidence is another witness or witnesses whose credibility is itself in issue? In R v Boffo [1997]O.J.

No 5156 (C.A.) the trial Judge rejected the evidence of the defendant saying: The real reason and the most important reason why I reject the accused's evidence is that it is inconsistent with what I regard as credibleevidence from the Crown witnesses who contradict his version of the event. [17] It was argued in the Court of Appeal that the passage betrayed forbidden reasoning in that the trial Judge reasoned, in effect: Iaccept the evidence of the Crown witnesses;- the accused’s evidence differs from the evidence of the Crown witnesses – therefore theaccused’s evidence was not to be believed.

It was contended, therefore, that the trial judge thereby “denied him access to the benefit ofreasonable doubt”. The Court of Appeal dismissed the appeal noting that the trial Judge directed himself properly on the burden of proofand R v W.D. and analyzed the evidence for both sides. The Court concluded: The trial judge's reasons also make it clear that he was alert to the prospect that a reasonable doubt might arise from the appellant'sevidence, even if he rejected it, or from all of the evidence. He rejected the appellant's evidence and said why he rejected it.

Heincluded in his reasons for rejecting the appellant's evidence the fact that he accepted the Crown evidence that was the converse of theappellant's evidence. This does not, in our view, mean that he looked at the case as an "either/or" proposition, to the exclusion of theprospect that he might have a reasonable doubt of the appellant's guilt on the basis of the appellant's evidence, or on all of the evidence(including that which he disbelieved).

We are satisfied that the trial judge's reasons, when read as a whole, make it clear that he did notproceed on the basis that the verdicts were controlled solely by the resolution of a credibility contest, that is by the answer to thequestion whether he accepted the Crown evidence or the appellant's evidence. [18] As is apparent, Boffo was a case where the evidence that contradicted the defendant came from more than one witness – a “theysaid/he said” case – if you will. However, it is my view that there is no difference in principle between that case and a case in which asingle witness contradicts the accused.

Equally they are both situations where the defendant’s evidence is weighed against Crownevidence that in itself is subject to credibility assessment. Equally the defendant’s evidence can be rejected on the basis of itsinconsistency with that evidence where the latter is found to be credible. [19] It seems to me that the cases of Boffo and R v Hull supra, effectively resolve the issue in the present case.

Maharaj and theother decisions can now be understood and distinguished as “inadequate reasons” cases where the trial judge appeared to engage in theforbidden reasoning that because he believed the complainant he was unable to do other than reject the contrary evidence of the accused.By so doing, he denied the defendant a fair assessment of credibility and the benefit of reasonable doubt. [20] In

summary, it is my view that the case law establishes that, in a “she said/he said” case, the Rule is that a trial judge canreject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of thecomplainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being leftin doubt, notwithstanding his acceptance of the complainant’s evidence. [21] Quite apart from case authority, there is ample reason to conclude that this must be the Rule.

If it were otherwise, there wouldeffectively be a legal corroboration requirement imposed in these cases and the undoing of years of reform in this area. Alternatively, theissue of guilt would turn on whether the trial judge could identify and articulate that little something extra over and above thecomplainant’s evidence - that flaw in the accused’s evidence or its presentation - that would become the additional crumb on which aconviction could be supported.

Reasons for judgment would become an exercise in highly subjective nit picking of the accused’sevidence, disingenuously disguising the real reason for its rejection. Finally, if the Rule was otherwise, it would be necessary for this tobe explained to juries. 241. Six weeks after Jaura was decided, in R. v. J.J.R.D. (ONCA), Doherty J.A., speaking for a unanimous three-member panel of the Court of Appeal for Ontario and upholding a trial judge’s verdict in finding an accused guilty of sexual assault in a“he says, she says” case, adopted a very similar line of reasoning to Duncan J.

Doherty J.A. held at para. 53: An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused’s evidence. 242. Defence counsel in his submissions invited me to “square”, if I could, C.L., the case he referenced during his submissions, withJ.J.R.D. I will attempt to do so.

243. What must be remembered is that C.L. was a case about the trial judge’s misdirection of a jury on W.(D). Paciocco J.A. was veryclear in the language he chose to explain the error he was attempting to address. He wrote: [25] The W.(D.) jury direction is intended to explain “what reasonable doubt means in the context of evaluating conflictingtestimonial accounts”: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. That direction, set out in W.(D.), at p. 758, provides: First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence youdo accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [26] This formula is not a magic incantation that must be slavishly parroted in a jury direction: R. v. S. (W.D.), (SCC),[1994] 3 S.C.R. 521 at 533; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7.

However, the W.(D.) direction provided to a jurymust be sufficiently clear to ensure that the jury is not under any misapprehension as to the correct standard of proof and how it applies tocredibility issues: W.(D.), at pp. 757-58. [27] It is instructive to note that the W.(D.) formula seeks to ensure that the correct standard of proof is applied to credibility issues bydescribing the three general states of belief a trier of fact may arrive at after evaluating credibility and reliability in a case where there isevidence inconsistent with guilt, and directing the trier of fact to the outcomes that follow from each of those three general states ofbelief.

In R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), a leading decision prior to R. v. W.(D.),Morden J.A. described the three alternative states of belief relating to the exculpatory evidence as “total acceptance, total rejection, orsomething in between”: at p. 557. The first W.(D.) alternative describes total belief; the last, total rejection; and the middle alternativebeing the “something in between” where the trier of fact cannot decide whether to believe or disbelieve the exculpatory evidence. 244.

Paciocco J.A. went on to state: [31] First, and most plainly, the trial judge misquoted the relevant extract from J.J.R.D. in a way that confuses the standard of proofbeyond a reasonable doubt.

Instead of instructing the jury that they could reject C.L.’s evidence “based on a consideredand reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence”, she said they could do so “basedon a considered and reasonable acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” (emphasis added).The first use of the word “reasonable” in that direction has meaning only if it is understood to be modifying the kind of reasonable doubtthat will suffice for a conviction.

This direction could well have been understood by a juror to be authorizing C.L.’s conviction ifacceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a reasonable conclusion. This is notconsistent with the law. The burden of proof in a criminal jury trial requires that each juror must be convinced, subjectively, ofthe guilt of the accused beyond a reasonable doubt. Based on this direction a hold-out juror could mistakenly choose to convictbecause the decision of other jurors to do so, while not agreed with, is reasonable.

This was a misdirection on a crucial matter.(my emphasis) [32] Second, and more broadly, the “considered and reasoned acceptance” language of J.J.R.D. has no place in a W.(D.) jurydirection. As the totality of the passage quoted above reveals, J.J.R.D. was a sufficiency of reasons case. It was not a jury instructioncase, nor even a case about the content of the W.(D.) formula. The issue was whether the reasons given by a trial judge, sitting alone,were sufficient to permit effective appellate review: see J.J.R.D., at paras. 1-2.

That is why Doherty J.A. describes “a considered andreasoned acceptance … of the truth of conflicting credible evidence” as an “explanation for the rejection of an accused’sevidence” (emphasis added). The case is about whether the trial judge explained the conviction by offering a considered andreasoned basis: see R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 84, leave to appeal to S.C.C. requested, [2019]S.C.C.A. No. 368; R. v. R.D., 2016 ONCA 574, 342 C.C.C. (3d) 236, at paras. 18-19.

It does not purport to offer a formula forovercoming facially unassailable exculpatory evidence. (my emphasis) [33] Put otherwise, the prerequisite terms, “considered and reasoned”, were chosen because J.J.R.D. was about the sufficiency ofreasons. These terms are meaningful in a sufficiency of reasons case.

They direct appellate courts to ask what the trial judge’s reasons fordecision reveal about the basis for conviction, and whether those reasons provide a pathway to conviction by showing that a decision toconvict without identifying problems with the exculpatory evidence was based on a considered and reasoned acceptance of the truth ofconflicting credible evidence beyond a reasonable doubt. In contrast, those same terms, “considered and reasoned”, offer no guidance toa trier of fact about when it is appropriate to convict in the face of exculpatory evidence that has no obvious flaws.

Since every decisiona trier of fact is to reach must be considered and reasoned, telling the trier of fact that it may reject exculpatory evidence beyond areasonable doubt based on considered and reasoned acceptance of conflicting evidence adds nothing. Indeed, doing so in a jury trial runs

the risk of planting the suggestion that this determination must be considered and reasoned, whereas the other W.(D.) conclusions, lessso. [34] Simply put, the “considered and reasoned” language in J.J.R.D. has nothing to do with a W.(D.) direction, adds nothing of use toa W.(D.) direction, and may even be misleading. [35] Third, I agree with C.L. that inserting paragraph 3 in the W.(D.) direction as the trial judge did in this case resulted in an unevencharge.

As I have stressed, the W.(D.) formula functions by instructing jurors on the implications of the alternative possible conclusionsthat can arise from credibility evaluation where there is exculpatory evidence and conflicting inculpatory evidence. Proposition 3 doesnot do so. It does not describe a conclusion and its consequences, but rather purports to describe a mode of reasoning. Indeed, it describesa mode of reasoning that will result in conviction.

Expressly inserting only one mode of reasoning into the W.(D.) charge can only serveto emphasize its importance over other competing modes of reasoning, which is not appropriate, particularly not when the only mode ofreasoning inserted is inculpatory. [36] Even the place where proposition 3 was inserted, immediately after propositions 1 and 2, adds to the unevenness of the charge.Proposition 1 and 2 describe the two circumstances in which C.L.’s testimony could lead to an acquittal.

To then immediately describe away in which C.L.’s testimony can be overcome even if it is without obvious problems could well diminish the importance ofpropositions 1 and 2 in the eyes of a juror. [37] Fourth, I accept C.L.’s concern that featuring a mode of reasoning that focuses on the comparative value of the conflictingevidence in a “he said/she said” case increases the risk that jurors might engage in credibility contest reasoning.

This is perhaps the keymischief that the W.(D.) decision intended to ameliorate, the very risk that materialised in that case and that featured in the reasoningin Challice, at pp. 554-57. I appreciate that jurors are to consider the whole of the charge, and jurors faithful to propositions 1, 2, 4, and 5would not simply decide which version of events to prefer.

For that reason, I would not find the charge to be in error on this basis alone.Still, the increased risk of confusion that could arise by featuring a contrast between the inculpatory and exculpatory evidence in a “hesaid/she said” case underscores further why a such an instruction should not be inserted into a W.(D.) charge. [38] Finally, although there may be exceptional cases where it is appropriate to alert jurors that they may reject defence evidenceoutright and find guilt beyond a reasonable doubt based on the strength of the Crown case despite finding no identifiable material flawsin that defence evidence, this is not one of them.

Given the problems with the complainant’s evidence and the absence of supportingevidence, there is no air of reality to the proposition that a jury could fairly convict C.L., even if unable to identify any material flaws inhis evidence. A jury direction should relate to the needs of the specific case. This case did not call for such a direction. 245. The primary concern of Paciocco J.A. in C.L. appears to be with the way the trial judge’s instructions to the jury members, inexplaining to them their task, provided a means to reject an accused’s evidence, which was without “obvious flaws”.

The trial judgethen imported the language of J.J.R.D. to offer a basis for rejection of the accused’s evidence. The trial judge went on to misquote thelanguage used by Doherty J.A. in J.J.R.D. as a valid basis for rejection of an accused evidence. Instead of speaking of a “considered andreasoned acceptance beyond a reasonable doubt of conflicting credible evidence” (see para 53 of J.J.R.D.), the trial judge referred to a“considerable and reasonable acceptance” of such evidence. (my emphasis) The trial judge fell into error in doing so. 246.

A reasonable acceptance of conflicting credible evidence will not suffice. The acceptance of other conflicting credible evidencepointing to the accused’s guilt must leave no room for reasonable doubt when considered and analyzed against all other evidence whichmight point away from it, or raise a reasonable doubt about it. (see R. v. A.I.B.

(2023) ONCA 557 at para. 17) 247. Viewed in this light, C.L. was far from an attempt to overrule or question the reasoning employed by Doherty J.A. in J.J.R.D. Paciocco J.A. in C.L. was primarily concerned with the trial judge’s misdirection to the jury, and how the language the trial judge chose,“a reasonable acceptance”, mistaking the specific language used by Doherty J.A. in J.J.R.D., predisposed the triers of fact to engagingin a credibility contest between the complainant and the accused. Of course, this must never be the task of the trier of fact in a criminaltrial.

The trier of fact must focus on whether all the evidence, which he or she accepts, satisfies him or her of the guilt of the accusedbeyond a reasonable doubt. 248. The accused’s evidence must be approached on a “considered and reasoned” basis to determine whether to accept some, none orall of it. The same goes for every other witness who testifies at an accused’s trial. To single out and instruct a jury on how the accused’stestimony may be rejected results in an unfair and unbalanced charge. 249. Simply put, J.J.R.D. is still good law. A trial judge may err, if

a) he or she does not advert to exculpatory evidence, and more specifically, does not explain why he or she is rejecting it, or

b) does not articulate why it fails to raise a reasonable doubt in his or her mind. 250. The two-pronged approach in

a) and

b) above are necessary steps along the way to a considered and reasoned acceptance of the

credible evidence of the complainant on all aspects of what constitute the elements of the alleged offence(s), if ever the presumption of innocence is to be displaced and an accused found guilty. (see R. v. A.I.B. at paras. 12 – 13, 17 – 18) Analysis Do I believe J.L.? 251 . Regarding the incidents in question, I find that I do have one solid basis for the rejection of J.L..’s evidence. I fully believe K.T.’s accounts of what she says happened when she would fall asleep in bed with J.L. on numerous occasions while they were a couple. Let me explain why. 252 . I have presumed J.L. is innocent.

He was adamant that he never touched K.T. sexually without her consent while she slept. His defence is essentially one of denial. 253 . Only two people will know with absolute certainty what happened between them. Those two are, of course, J.L and K.T. It was only those two who were in each other’s company at all critical times. 254 . The reason I believe K.T is because her evidence was thoroughly consistent in respect of what J.L. did to her as she slept. It withstoo

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