R. v. E.D., 2019 ONCJ 34

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. ONTARIO COURT OF JUSTICE CITATION: R. v. E.D. , 2019 ONCJ 34 DATE: 2019 01 17 COURT FILE No.: Halton 17-2473 BETWEEN: HER MAJESTY THE QUEEN — AND — E.D. Before Justice D.A. Harris Heard on May 15 & 16, June 18, September 17, November 5 & 29, 2018

Reasons for Judgment released on January 17, 2019 David King............................................................................................ counsel for the Crown H. Kim Taylor........................................................................... counsel for the accused E.D. D.A. HARRIS J.: INTRODUCTION [ 1 ] E.D. is charged with:

(1) Assaulting J.P. in summer 2014,

(2) Asssaulting J.P. in January 2015,

(3) Committing mischief to property of J.P. in April 2015,

(4) Sexually assaulting J.P. in October or November, 2015,

(5) Threatening J.P. at the same time,

(6) Assaulting J.P. in December 2015,

(7) Assaulting J.P. in January or February, 2016,

(8) Entering dwelling house of J.P. with intent to commit an indictable offence in July, 2016,

(9) Committing mischief to property of J.P. in January, 2017, and

(10) Criminally harassing J.P. in June and July, 2017. [ 2 ] Crown counsel alected to proceed by indictment on all charges. E.D. elected to be tried in the Ontario Court of Justice and pled not guilty. [ 3 ] J.P. was called as a witness by Crown counsel. [ 4 ] Eventually Crown counsel applied pursuant to section 9(2) of the Canada Evidence Act to cross-examine J.P. on her prior statement to Halton Regional Police. [ 5 ] Ultimately, I ruled that he could do so. [ 6 ] Folowing that cross-examination Crown counsel applied to introduce her statement for the purpose of proving the truth of its content.

Again, I ruled that he could do so. [1] [ 7 ] Counsel for E.D. showed J.P. an affidavit that she had sworn before a lawyer. She adopted the contents of that document and, to that extent it too is evidence before me. [ 8 ] A recording of her call to the 911 operator is not evidence before me, except for one significant prior inconsistent statement. I shall refer to this in greater detail later. [ 9 ] Laura Serrano gave evidence with respect to the application only.

Halton Regional Police Constables Allison Theriault, Samantha Coysh and Dan Pinkey and Detective Sergeant Donna Whittaker testified as Crown witnesses on the application and the trial. Felicia Simard also testified on the trial. [ 10 ] This case stands or falls however on the evidence of J.P. in its various forms. [ 11 ] No one testified for the defence. [ 12 ] However Crown counsel introduced into evidence a video-recorded statement made by E.D. In that statement, E.D. denied committing some of the offences. Accordingly, the principles in R. v. W (D) [2] are applicable. [ 13 ] If I believe the testimony of E.D.

I must find him not guilty. [ 14 ] Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty. [ 15 ] Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit. [ 16 ] In determining this, I must keep in mind that E.D., like every other person charged with a crime, is presumed to be innocent,

unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law.

However I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities" [3] . [ 17 ] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus : The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted [4] . CREDIBILITY AND RELIABILITY OF WITNESS [ 18 ] As I stated above, this case turns on the evidence provided by J.P. in its various forms.

While the following comments apply equally to the statements made by E.D. to police, I am focusing here primarily on her credibility and reliability. [ 19 ] In that regard, I have distinguished between credibility and reliability. Credibility relates to a witness's sincerity, whether she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of her testimony. In determining this, I must consider her ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence [5] .

Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. [6] [ 20 ] Finlayson J.A. stated in R. v. Stewart that: I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations.

We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony.

Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record. [7] [ 21 ] At this point I will say that my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying.

I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. [8] The credibility and reliability of a witness must be "tested in the light of all the other evidence presented" [9] . [ 22 ] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.

MOTIVE TO FABRICATE [ 23 ] Counsel for E.D. argued that J.P. had a motive to fabricate the allegations against E.D. I would agree that this would appear to be correct although I do not agree with counsel as to the nature and extent of the motive. [ 24 ] Counsel argued that she wanted him to be arrested so that she could get him out of her life. [ 25 ] J.P. did testify that she was motivated by a desire to get E.D. to stop contacting her. She further wanted his mother to stop contacting her.

She particularly wanted his mother to stop threatening to provide information to the social services people that could cause J.P. to lose her subsidized housing. [ 26 ] That does not tell me however which was the chicken and which was the egg. Did she accuse him of assaulting her and damaging her property because she was angry with him or was she angry because he had been assaulting her and damaging her property? [ 27 ] Further, I find that J.P.’s behaviour is consistent with a desire to get E.D. to stop contacting her.

It is not consistent with a desire to get him arrested. [ 28 ] Counsel for E.D. relied on what J.P. said when she called the 911 operator: Hi um I – I just got this number from 911. Um I have somebody that uh is um threatening me and uh making me very nervous. And they won't leave me alone. And they're harassing me. And I have a child. So .... basically it was somebody that is a friend and that wants -- doesn't wanna let me go. Doesn't want me to just stop call--- like communication. So I've stopped communication and um they just keep sending me emails and they wanna get in contact.

They don't want me to block them. And now -- and I have text message proof that they're saying that they're gonna make my life a living hell. And like cursing and -- and this person has firearms. And this person has aggressive tendency. And he's violent. And he has a firearms license. And he's threatened also to shoot me with his firearms license - - with his firearms [sic]. So I just -- and um -- and it's just I'm really scared for my safety and for my son. … He's calling me from -- his number has been blocked from my phone.

And he's been putting a spoof to put a different call ID so that I answer and that he can scare me and keep saying that I have some belongings that belong to him that are in my house. And he wants to pick it up. He's gonna come to my house. And I fear for my safety. …

And he's saying that he's gonna uh report me to government housing for uh keeping his belongings.

And he's threatening me and saying that I'm gonna lose my house. [10] [ 29 ] The reference to the firearms is troubling because J.P. testified that while E.D. did possess a firearm (properly licensed and stored in a gun safe), he had never threatened her with it. [ 30 ] Counsel for E.D. argued that she made her statements to the 911 operator because, having spoken to E.D.’s ex-girlfriend, J.P. knew that accusing E.D. of threatening her with a firearm would prompt the police to arrest him. [ 31 ] There are a number of problems with this argument. [ 32 ] J.P. seemed genuinely surprised by the content of the above conversation when it was played for her in court.

She acknowledged that it was her voice but did not recall saying this to the operator. [ 33 ] She also denied trying to get E.D. arrested. [ 34 ] This is consistent with her statements to the police officers who spoke to her following the telephone call. She never mentioned being threatened with a firearm. It is puzzling that none of them asked her about such a threat. In any event she made it clear to them that she wanted them to tell E.D. to stop contacting her. That was all that she ever asked of them. Once they did that, she wanted nothing more to do with the police.

She did not want them to charge E.D. with anything. She did not want him arrested. [ 35 ] She testified that she wanted to make him to seem more dangerous than he was, to look bad and that she exaggerated things in order to accomplish that. For example: A. I just -- I wanted to -- to make him seem more dangerous than he was, at the time. Q. When you say "more dangerous than he was".... A. Yeah.

I wanted to make him look bad in front of the police. [11] [ 36 ] At times in her evidence she attempted to explain why she did this The following are examples of this: I was watching a lot of videos on YouTube about narcissists and I kind of made myself believe that he was a narcissist and he was this evil, evil person and the more I watched these videos I convinced myself that he was a dangerous person and that he was an evil person. So that was my mindset and I just focused on that incident that we had and I just exaggerated them to the most degree.

But after some time I realized that I wasn't -- I wasn't in the right frame of mind. I was very upset and I wrote an affidavit so that I could clarify everything and any misinterpretation that the police had about the incident. [12] … And I feel like the police -- in the time that I gave the statement, I wasn't in the right frame of mind. I was stressed. I was just in motherly protective mode and I said all these things. But after the air cleared I realized that this might have been misinterpreted in a significant way and this man's going to be charged with all these charges and that's not what I want. [13] … Q.

Okay. So I've -- I'd asked you that before if when you spoke to the officer, again, about one of the other incidents if you were trying to tell the truth and I think you said you were. So in this instance, were you trying to tell the truth, were you trying to lie? A. Like I said, I was watching YouTube videos of narcissists and how they act and in my mind I constructed things like how they -- like I exaggerated the way that things happened, in my mind. I wasn't in my right frame of mind.

I was trying to tell the truth, but my mind was foggy because I was watching all these videos and in my mind I created these things because that's what I wanted to believe so badly. [14] … Q. Okay. Did you think he was doing stuff that was wrong? A. At the time, yes. I was really, really upset.

So that's why my mind exaggerated all these things and I saw him as this horrible person and I wanted to believe it. [15] [ 37 ] Quite frankly, while these explanations might be considered reasonable during a pop psychology session, they do not bear scrutiny when analyzed in the context of all the evidence here. [ 38 ] It is clear from the evidence that J.P. wanted the police to tell E.D. to stop contacting her and that once she accomplished that goal, she wanted no further conversation with the officers. [ 39 ] Detective Whittaker had to coax and cajole her into giving any form of statement.

She did not however coerce or pressure J.P. in any way. [ 40 ] Viewed in the context of the audio recorded statement, and J.P.’s evidence in court, the contents of her affidavit stating

otherwise are hyperbolic nonsense. [ 41 ] J.P. declined the request to attend at the police station to give her statement. Detective Whittaker tried to convince her otherwise but in the end she settled for an interview over the telephone. [ 42 ] I note that if Detective Whittaker wished to pressure J.P. or to intimidate her in any way, it would have been much easier to do this in person at the police station. [ 43 ] We have the audio recording of the conversation between Detective Whittaker and J.P.

It is clear to anyone listening to this that the assertion that Detective Whittaker “continued to pressure me into remaining on the phone and providing further statements” [16] was untrue. [ 44 ] So were the following assertions: The statements made to the Officer on July 24, 2017 were late at night and it had been a long day. In addition, the incidents the Officer was question me about were dated, and as such, my memory was cloudy at best. I relayed this sentiment to the Officer at the time. [17] … I felt pressured by the Officer to continue speaking wih her, when I no longer widhed to do so.

I feel as though the Officer took advantage of my emtional state and pushed me to remain on the phone and continue with the statement. [18] [ 45 ] Detective Whittaker advised J.P. at the outset that the statement was being recorded and that it could be used as evidence in court if J.P. became unable or unwilling to testify for whatever reason.

She was warned and she acknowledged being warned that it is a criminal offence to obstruct the police or to make a false statement to the police during an investigation. [ 46 ] J.P. was cautioned as to the importance of her telling the truth and as to the possible legal consequences if she did not do so. [ 47 ] She testified that she understood this and that she was attempting to tell the truth when she gave the statement to Detective Whittaker. [ 48 ] There was no reason for any memory problem.

She gave no indication of being under the influence of alcohol or drugs when she made the statement, or of being unduly tired or emotional. [ 49 ] Her story came out with very little prompting. Detective Whittaker asked almost no leading questions. She did not ask J.P. to fabricate allegations. On the contrary, she made it clear that she wanted J.P to tell her the truth. J.P. provided considerable uninterrupted narrative which included considerable detail.

She often did this in a very matter of fact manner. [ 50 ] She also said many things that acknowledged her responsibility for much of what happened and did so in a manner that was often unflattering to her and downplayed the actions of E.D. [ 51 ] All of this happened after police had contacted E.D. and told him not to contact J.P. Having already achieved that goal, there was nothing to be gained by her saying anything more about him let alone fabricating false allegations. [ 52 ] Finally, much if not most of what she said in her statement was corroborated by her evidence in court.

I will be dealing with the issue of inconsistencies later in these reasons for judgment, but I will say here that I found most of these inconsistencies to be matters of degree rather than substantive contradictions of her statement. [ 53 ] For all of these reasons, I am satisfied that J.P. was not motivated to fabricate her allegations against E.D. [ 54 ] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process. [19] It is, however, only one of the factors to be considered by me.

I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the complainant's evidence in the light of all of the other evidence [20] . Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate. [21] [ 55 ] I will now address the issue of inconsistencies in J.P.’s evidence.

INCONSISTENCIES [ 56 ] In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said in the witness box and what she said on previous occasions. It is also appropriate to examine inconsistencies with what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable.

In determining this, it is necessary to look to the totality of the inconsistencies. [22] [ 57 ] As I indicated above, J.P.’s statement to the 911 operator alleging that E.D. had threatened to shoot her was a significant inconsistency. I will have more to say about this shortly. [ 58 ] Other inconsistencies between her statement to Detective Whittaker and her evidence in court were not nearly so significant. They consisted more in her not remembering events clearly or not remembering them as happening exactly as she described them in her statement.

[ 59 ] Examples of both of these phenomena can be found in her evidence with respect to count 1. [ 60 ] J.P. was fairly consistent in describing this incident both in her statement to Detective Whittaker and in her evidence in court. On both occasions she indicated that she was angry about E.D.’s involvement with other women. She confronted him. [ 61 ] In her statement she said she may have grabbed him because she was really upset. In court she said that she thought that she had grabbed him. [ 62 ] In her statement she said that he then grabbed her by the hair and threw her out of the house.

In court she said that he had tried to calm her down. He then told her to leave the house and calm down. She did not leave and she did not calm down. Then around the time that she grabbed him, he opened the front door, grabbed her by the shoulder, not the hair, and pushed her out of the house. [ 63 ] In her statement she said that he locked her out for a while and then opened the door when she knocked on it.

In court she said that she took a breather, then opened the door herself and walked back in. [ 64 ] The following are questions asked and answers given regarding her recanting her allegations that E.D. had grabbed her hair and that he had thrown her out of the house: Q. So why did you tell the officer he grabbed you by the hair if that didn't happen? A. Because his hand was on my hair and I have long hair, so he put his hand back of my hair. I can't see his hand behind my head. I don't know if he's grabbing it or not. [23] … A. Yes. I feel like I exaggerated a lot of things.

Like I said that he grabbed me by the hair, he pulled -- he kicked me out of the house. He locked me out of the house; right? Q. Okay, but didn't you just tell me he did lock you out of the house? A. Well -- well, yeah, but like I -- I wanted it to sound bad when I gave the statement and here I am saying that I went crazy and I was grabbing him -- grabbing him and yelling and he tried to defuse the situation by asking me to leave and I didn't leave and -- and then he pushed me from my back outside the door. That is what happened. Q. Okay.

And that part that -- that you were really upset and you may have grabbed him, that's something that you told the officer. A. Yes. [24] … Q. So today I'm suggesting that you told the officer he grabbed you by the hair and I'm suggesting that's what happened. Do you agree that that's what happened or not? A. That he grabbed me by the hair? Q. Yes. A. I don't want to say yes because he might have just put his hand behind my -- my back and touched my hair.

I don't want to say yes because that may not have been the -- a hundred per cent actual facts. [25] [ 65 ] In other words, she was no longer 100% sure that E.D. grabbed her hair, so she would not say that it had happened that way. She was sure that his hand was on her hair at the time but she could not be sure that he was grabbing it. I do note that she did not go so far as to say that she was sure that he did not grab her hair. [ 66 ] The other inconsistency was between him throwing her out of the house as opposed to him pushing her out of the house.

If J.P. was particular and precise in her choice of words on a regular basis, I could consider this to be an inconsistency. Based however on what I heard from her, I would not describe her as being particular and precise in her choice of words. [ 67 ] These are examples of what she described as exaggerations in her original statement. I see them differently. [ 68 ] Further examples of her simply indicating that she was no longer sure of something that she said in her statement can be found in her evidence regarding count 6 where the following questions and answers occurred: Q. Okay.

Well, tell us what it is that you remember about that. A. I don't know. We -- we had heated arguments and a lot of these things I've suppressed in my memory and I don't really -- I don't remember very clearly, so -- I don't want to lie. I don't want -- I don't want to get misinterpreted with what I'm saying, so I'm just going to say I don't remember. [26] … A. I don't remember when -- the events when I talked to the police.

I -- I was just really angry and I wasn't in the right frame of mind when I was talking to the police, which may have led to a misinterpretation of what happened. [27] [ 69 ] Crown counsel ultimately conceded that count 6 had not been proven beyond a reasonable doubt. I agreed and dismissed the

charge. The above questions and answers are examples however of J.P. backing away from her original statement without actually saying that it was incorrect. [ 70 ] That sort of inconsistency does not cause me great concern in this case. The statement to the 911 operator however is an inconsistency that causes me very real concern. It has led me to scrutinize her evidence even more carefully although it did not cause me to reject everything she said.

As counsel for E.D. argued, I can accept all of what she said, some of what she said, or none of what she said. [ 71 ] The following will make it clear that I have accepted most but not all of what she said. It should also make it clear that I have accepted her evidence to the point where I am convinced of the guilt of E.D. beyond a reasonable doubt only where her statements to Detective Whittaker were corroborated to a significant extent by her evidence in court. [ 72 ] I will now examine each of the charges against E.D.

THE CHARGES [ 73 ] I note that although identity was not expressly admitted, it was never raised as an issue in this case. The same can be said about dates and jurisdiction. The issue is whether the Crown has proven beyond a reasonable doubt that E.D. did the things that he has been accused of. [ 74 ] In determining this, I will examine each of the charges against E.D. separately. [ 75 ] Although he argued that it was not necessary to do so, Crown counsel did not apply to have the evidence with respect to any one of these complaints apply with respect to the others.

I am satisfied that I must therefore assess each set of allegations in isolation and cannot rely upon one to corroborate the other. The allegations respecting each complaint must be approached separately, as if they comprised discrete trials. [ 76 ] I do note that all of the evidence is relevant in establishing the context of the various events. Further, I will be considering any and all inconsistencies in J.P.’s evidence when determining her credibility and reliability. That however is the only use I have made of the evidence on a count-to-count basis.

Count 1 Assault – summer 2014 [ 77 ] I referred to this evidence at some length above but will repeat it here. [ 78 ] J.P. was fairly consistent in describing this incident both in her statement to Detective Whittaker and in her evidence in court. On both occasions she indicated that she was angry about E.D.’s involvement with other women. She confronted him. [ 79 ] In her statement she said she may have grabbed him because she was really upset. In court she said that she thought that she had grabbed him. [ 80 ] In her statement she said that he then grabbed her by the hair and threw her out of the house.

In court she said that he had tried to calm her down. He then told her to leave the house and calm down. She did not leave and she did not calm down. Then around the time that she grabbed him, he opened the front door, grabbed her by the shoulder and pushed her out of the house. [ 81 ] In her statement she said that he locked her out for a while and then opened the door when she knocked on it.

In court she said that she took a breather, then opened the door and walked back in. [ 82 ] This incident was not really addressed in her affidavit or in E.D.’s statement. [ 83 ] As indicated above, J.P. attempted at trial to back away from her original statement at least to some degree. However, I was satisfied that the two accounts were not significantly different. [ 84 ] Either set of facts however leave me questioning whether J.P. started the physical contact between them in such a way could be viewed either as her starting a consent touching of each other or even of her assaulting him.

Based on her account, I am satisfied that he used no more force than was reasonably needed to stop that assault. In reaching that conclusion, I have considered all of the factors set out in

section 34 of the Criminal Code . [ 85 ] Either way, I am not convinced beyond a reasonable doubt that the Crown has proven the essential elements of this offence. It will be dismissed.

Count 2 Asssault – January 2015 [ 86 ] In her statement to Detective Constable Whittaker, J.P. said that she had been arguing with E.D. (she did not recall the details but did not blame this on him) when he pushed her to the ground, put her on her stomach and held her there while telling her that this was what he could do to her. [ 87 ] In court, she described much the same event but suggested that he thought that she was trying to hit him with something and that he “sustained” her to prevent this.

After she used the verb “sustain” several times, I was able to clarify that she meant to say that he had restrained her. [ 88 ] I note here that she could not know what E.D. was thinking. In his statement, he did not recall the argument and flatly denied the incident. [ 89 ] It was not addressed in J.P.’s affidavit.

[ 90 ] I accept that E.D. may not have recalled the incident. However I found J.P.’s evidence so compelling that I did not believe his denial. Nor did it leave me with a reasonable doubt. Based on all of the evidence from J.P. I am satisfied beyond a reasonable doubt that E.D. assulted her on this occasion. [ 91 ] I find him guilty of this offence. Count 3 Mischief to property – April 2015 [ 92 ] Her statement to Detective Constable Whittaker was very matter of fact: I um I came the next morning because I slept over at my friend's house. And he had slept uh out of the house too. He went to Niagara Falls.

But I was supposed to come early that morning because I was supposed to let the door open for one of his workers that were gonna work in the house. And um I didn't come early 'cause I was tired. I -- I ended up coming later. And he thought that I was cheating on him. And I wanted to prove to him that I wasn't cheating on him. I wanted to show him on my phone that I had been with my friends and I wanted him to see the text messages between me and my friends, and pictures and evidence that I wasn't cheating on him. And then he grabbed my phone and threw it across the room.

And my phone smashed and it was all shattered. [28] [ 93 ] In court, she said much the same thing except that she tried to back away from the verb “throw”. After Crown counsel asked her to refresh her memory from the above statement, the following questions and answers occurred: Q. Okay. And how does your phone get broken in -- in the middle of a fight? A. Okay. Well, he -- I slept over at a friend's house the night before and he went away as well. He went to Niagara Falls with his friends.

And I was supposed to get back home in the morning because I was supposed to open the door for one of his workers or something and I didn't show up at the time that I was supposed to show up at the house; I came later. And when I came later he'd asked me where I'd been because we didn't agree that I was going to stay at my friend's. I told him I was going to come home the night before.

And he was surprised to see me come in at that time and his employee friend that was -- I was supposed to open the door for was waiting for quite some time for me and I -- I let him down that day, so he was upset and he thought that I was cheating on him. So that was how the argument -- that was what the argument was about. He thought I was cheating on him and I tried to show him in my phone that I had just spent the night at my friend's house and I wanted to show -- show that as proof.

But he -- he was just so believing that I -- I was unfaithful to him the night before, so he grabbed my phone and then the phone broke in the midst of the argument. Q. Okay. So how does it go from him grabbing your phone to the phone breaking? A. I was showing him the phone and I was like "Look, here's the proof I was with my friends, here's the messages; here's everything". And he just didn't want to hear it. He was just so -- believing that I cheated on him and he just grabbed the phone and whipped it and then it just fell and broke. But he did pay for the phone. I went to Pacific Mall by Kennedy and Steeles...

Q. Mm-hmm. A. ...and I paid a hundred and something dollars and on my way there -- my phone was smashed, but I could still see text messages and he was very apologetic about what happened and he said that he was going to fix it and that he was sorry. And he did give me the money for it the same day. Q. And when you say that he -- he grabbed your phone, I think you said he -- he whipped it; I take it he threw it? A.

It was like we were arguing, I was showing him the phone, he grabbed it and just like went like that and it fell and broke because it fell right on the face of the phone. [29] [ 94 ] Her physical gestures in court were consistent with someone throwing a phone or whipping it. They were not consistent with the phone being dropped or otherwise just falling. [ 95 ] J.P. did not address this incident in her affidavit. [ 96 ] In his statement E.D. stated that he did not recall any of this happening. Based on all of the evidence from J.P.

I am satisfied beyond a reasonable doubt that E.D. intentionally damaged her phone, thereby committing mischief on this occasion. I find him guilty of that offence. Counts 4 and 5 sexual assault and threatening – October / November, 2015 [ 97 ] J.P. spoke at length about these matters in both her statement to Detective Whittaker and in her evidence before the court. I am satisfied that despite her attempts at trial to absolve E.D., the two versions of events bear each other out.

As a result, I will be quoting extensively from both sources. [ 98 ] J.P. said the following in her statement to Detective Whittaker: J.P.: I don't like talking about that. Like, it's -- I'm really -- like, I don't know. It just brings a lot of anxiety and I'm really -- it happened. I-- we were arguing and he -- he did -- he did put his arms around my neck and he told me uh that he could kill me. He said, "I'm gonna kill you."

D.W.: Okay. Why did he do that? J.P.: Yeah. D.W.: What was the problem? J.P.: I don't remember exactly what the argument was. And, yeah, I don't remember exactly what it was. But, yeah. And um and then he did throw me on the bed and a- after he -​ he choked me. And I -- because I couldn't breathe when he was choking me, so 1 .—I just pretended to be unconscious so that he -- I did this because I wanted him to know how -​ how um feared I was and I -- and that how serious this was. Like, he actually put me unconscious. But he – I wasn't really unconscious, I just pretended to be unconscious.

And then I just laid there with my eyes closed on the bed. And -​ and then he uh pulled down my pants and then he had intercourse with me. [30] … J.P.: And then he -- he -- he squeezed and it was hard for me to breathe. And he told me that he could kill me. Or he said -​ he's like, "I'm gong to kill you ," actually. He said he was going to kill me. [31] … J.P. : And then -- and then um I couldn't breathe, right, because I was being choked. And then he threw me on the bed and I just laid there with my eyes closed pretending to be unconscious. D.W.: How long did you lay there? J.P.: Not long.

Uh pretty much, like, right away. And then I heard him say to me, "This is what you do to me. You turn me into a monster." And then -- and then that's when he pulled down my pants and started having sex with me. But I didn't move or tell him o- -- tell him to get off. And I was conscious I was not unconscious. I was conscious, but I pretended to be unconscious because my eyes were closed. [32] … D.W.: And so while he's having intercourse with you, what do you do? J.P.: I just – I just laid there um and didn't move. And I didn't open my eyes. And then um -- but it didn't ha- -- it didn't last for a long time.

D.W.: How long did it last? J.P.: It was very short. It was a minute. D.W.: And why did it end? J.P.: Um I kinda -- I kinda nudged. Oh, yeah, I remember why it didn't last long. D.W.: Why? J.P.: Um because he tried to put it in my anus. And I nudged. Like, I went, "Umm ." And then when I -- when that happened, he -- he stopped and went downstairs. Because it was very painful and I've never had anal sex before. And I ne- -- I never enjoyed anal sex. I- it's actually something very painful. D.W.: So that wasn't part of your relationship prior?

J.P.; Um it was something that he tried to do with me, but I -- I never enjoyed it. It was always very, very, very, very painful. So -- so I - - Ididn't participate in that willingly, ever. D.W.: Okay. But you're saying -- that's a different statement. You said, "I've never participated in that willingly." J.P.: Anal sex; no . [33] [ 99 ] J.P. gave the following evidence at trial: Q. Okay. Now, you know that you indicated that you were in a -- a relationship with [E.D.] I take it, it was an intimate relationship? A. Yes. Q. And I understand there's one incident involving sex that you told the police about.

Can you just -- I'm just interested in -- in -- if you could tell us about that incident. A. Okay. I don't remember much of that incident. I was under the influence of alcohol, so a lot of it is suppressed and I don't remember it clearly. Q. Okay. Do you -- do -- can you tell us what led up to this? A. I don't remember what we were arguing about even.

Q. Okay. But -- you say you don't remember what you were arguing about; were you arguing? A. Yeah, we were arguing. Q. Okay. And did anything physical happen during the argument? A. Like I said, it's -- like I don't remember a hundred per cent. Q. Okay. Well, what do you remember? A. I remember us yelling at each other, a lot. Q. Okay, anything else besides yelling? Page 22 A. From what I remember I told the police, I told the police that he had grabbed me, but I don't believe that he grabbed me by the throat. It was more like upper jaw, grabbed my face and talked to me.

You know when you talk to somebody; you grab them by the face? Q. Okay. So you're indicating he sort of -- he grabbed you by the face? A. Mm-hmm. Q. And -- and sorry, just -- just for the reporter, I take it that's yes? A. Yes. Sorry. Q. No, no, you don't have to apologize for that, it's okay. So he -- you're indicating he -- he grabs you by the face. What was that sort of in response to -- like what was happening just before he grabbed you by the face? A. Me yelling and me saying, "I'm not happy with you". Q. Okay. And so -- so he grabbed you by the face and -- and what happens at -- at that point? A.

I don't remember. I was under the influence of alcohol. Q. Okay. So is there anything that you remember about after he grabs your face, about anything that happens, until the end of that incident? A. Well, I remember laying on the bed and -- and him trying to initiate intercourse with me. But I want to make it clear that when we were in a relationship we would make up by having sexual intercourse after an argument. That was the way the relationship was. Q. So did you want to have sex with him at that point? A. At that point, no. But in other past incidents we would make up like that. Page 23 Q.

Now, you said he was -- he was trying to initiate intercourse. Did it go further than trying to initiate? A. Yeah, he tried to initiate and I didn't move. But then when I wanted it to stop, I nudged and he stopped. Q. So was there intercourse? A. Yes. Q. And -- sorry, when you say that you "nudged", what -- what do you mean, what did you do? A. I kind of moved and I went, "Mmmm". Q. And that -- and then he stopped? A. Yeah. Q. And when -- just -- just so we're clear, when you -- when you talk about intercourse, what part of your body are we talking about? A. Vaginal intercourse. Q.

And -- sorry, where -- where were you when this happened? A. On the bed. Q. And what -- sorry; what position were you in on the bed? A. On my stomach.

Q. And how did you end up on the bed? A. I don't remember exactly how that happened. [34] [ 100 ] In both versions of the events on that occasion, J.P. was on the bed and E.D. began to have vaginal intercourse with her. She “nudged” or went “Mmmm” and he stopped. [ 101 ] I will now examine some differences between the two versions. [ 102 ] In her statement, she said that he grabbed her by the throat, threatened to kill her and threw her on the bed. She could not breathe and she pretended to be unconscious. [ 103 ] In her evidence at trial she said that she did not know how she had got on the bed.

She also said that she had been drinking which affected her memory. [ 104 ] She made no mention of drinking in her initial statement. [ 105 ] In her affidavit she stated clearly “I was not under the influence of any drugs or alcohol”. [35] [ 106 ] During a subsequent cross-examination of her by Crown counsel the next day, the following exchange occurred: Q. That's one... A. I believe. Q. ...part I don't understand because I think you said that yesterday. A. Yes. Q. And you'll agree you don't -- you didn't tell the officer that you were under the influence of alcohol? A. No, I didn't. Q.

And why -- what if I can -- I just want to sort of ask why it isn't -- we talked a bit about the affidavit you swore yesterday; right? A. Yes. Q. Like, we talked -- yeah, you didn't swear it yesterday. Yesterday we talked about the affidavit that you swore. A. Yes. Q. And do you recall what you said in the affidavit about alcohol and that accident? A. Yes. Q. And what's that? A. That I wasn't in the influence of alcohol. Q. Okay. So -- so you're staying -- so in the affidavit you swore you weren't under the influence of alcohol, but now you're saying you were? A.

You know what, I -- I -- I guess I just couldn't remember and I was confused about whether or not, but I -- I do know that on the weekends I am a casual drinker and I have wine, so I wasn't intoxicated to the point where I was not -- I was unconscious or -- or out of my mind entirely, but I might have been in a slight influence. [36] [ 107 ] I did not believe her statement that she had been drinking that night.

It was just one more falsehood resorted to by her in an attempt to resile from what she had said in her statement. [ 108 ] When questioned further as to whether E.D. had grabbed her, she remembered that he had grabbed her by the face but did not believe that he had grabbed her by the throat. [ 109 ] But again during cross-examination the next day, the following occurred: Q.

Now, if we can -- we --we talked about another incident involving sexual intercourse when you were -- you were face down on the bed; I just -- I'm trying to be clear about a couple of things, and I'd sort of asked you what led up to it, and you weren't really -- you didn't really tell us in -- in much detail. I'm just -- I'm going to suggest to you that -- and this is Page 46 for anybody who's -- who's looking, I'm going to suggest to you before he attempted to have intercourse with you, he had chocked you and thrown you down on the bed. A. Mm-hmm. Q. Is that correct, did he do that? A. No.

We were having a heated argument and sometimes we would grab each other's faces and talk to each other. And one of the time -- those times he grabbed me and it was, like, an upward jaw grab, and I -- when somebody grabs me by this area I feel as if it's, like, it's -- even though it wasn't cutting off my breathing, I felt worried that he was.

Q. And when you say, "this area", you're putting your hand up to your face. A. Here, like, upper jaw. Q. Well -- but where you're actually touching is along the lower jawline; right? That's where you're touching. A. Upward jaw, here. Q. So the top -- the thumb and the finger are towards the upper jaw... A. Yeah. Q. ..and the sort of bottom of the hand is -- is across the... A. Yeah. Q. ..the lower jaw. A. Yeah. Q. It's like -- is under the chin [indiscernible] a better -- better way of putting it. A. Like that, yeah. Q. Okay. So, when he did that, were you able to breath or not able to breath, like, what.... A.

I can't remember. I mean, I was under the influence of alcohol. [37] [ 110 ] At the time that she said these things, J.P. moved her hands in order to demonstrate what had happened.

I too saw her moves as being consistent with E.D. having placed his hands on or at least near to her throat, rather than as grabbing her face. [ 111 ] Again, she tried to resile from what she said in her statement, but in the end, she corroborated the contents of the statement to a significant degree. [ 112 ] In her initial recounting of these events during her evidence in court, J.P. made no mention of E.D. trying to initiate anal sex with her. Crown counsel however raised this issue later and the following exchange occurred: A.

No, no, no, but when we would initiate sexual contact, he would -- he would pull down -- I mean this is something very personal and that's why I don't like talking about this. This is our sexual life, right, so we are kinky, we do a lot of crazy things in bed and it's embarrassing and I don't like talking about this. I don't feel as if I was sexually assaulted. I was very attracted to the -- to the guy, and I really enjoyed having sex with him. Q. I'm going to suggest to you that, when you told us yesterday that you sort of nudged him and that stopped everything. A. Yup. Q.

I'm going to suggest to you that what happened is that he -- he attempted anal sex with you and that's when you nudged him to make him stop. A. Yes. Q. And is that how it happened? A. Yes. Q. And am I correct that, essentially by nudging him you made it clear that, I guess you were awake as opposed to lying there quietly unconscious? A. Yeah, but he didn't get the impression that I was unconscious; he thought I was playing around. Q. And is that something that he told you later I take it? A. Yeah. Q.

But he didn't say anything did he, at the time, like, he doesn't say to you -- before he -- before he did that, did he? A. I can't remember. [38] [ 113 ] In both versions of events then, J.P. stated that E.D. placed his hands either on or near her throat and as a result she somehow ended up on her stomach on the bed. She feigned unconsciousness. She did not want to have sex with E.D. He removed her pants and began to have vaginal intercourse with her. After a very short time he removed his penis from her vagina and attempted to insert it into her anus.

She then “nudged” and he stopped wht he was doing. [ 114 ] Although I would classify such actions as constituting sexual assault, J.P. did not. [ 115 ] In her affidavit, she stated:

10. In relation to the charge of sexual assault, I do not support or agree with the charges bein laid and I do not believe or feel I was sexually assaulted as I had given full and informed consent to the sexual activity and I was not under the influence of any drugs or alcohol. Within one minute of the sexual activity being initiated, I decided I did not want to continue and withdrew my consent at which point E.D. stopped and left the room. [39] [ 116 ] She adopted this statement during cross-examination by counsel for E.D. [ 117 ] J.P. is clearly incorrect with respect to her

interpretation of the law regarding the giving of full and informed consent to sexual activity. [ 118 ] The Supreme Court of Canada set out the framework of the law of sexual assault in cases involving unconscious complainants in R. v. J.A. [40] I have summarized that framework in the following eight paragraphs. [ 119 ] A conviction for sexual assault requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he touches another person in a sexual way without her consent. Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question.

Section 273.1(2) of the Criminal Code limits this definition by stipulating circumstances where consent is not obtained. [41] [ 120 ] The portions of that

section relevant to this case state that “no consent is obtained, for the purposes of sections 271, 272 and 273, where … (

b) the complainant is incapable of consenting to the activity”. [ 121 ] A person has the required mental state, or mens rea of the offence, when he knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity. However, sections 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence. [42] [ 122 ] The relevant portion of

section 273.2 provides that “it is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. [ 123 ] McLachlin C.J. wrote the following:

Section 273.1(2)(

b) provides that no consent is obtained if "the complainant is incapable of consenting to the activity". Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: [citations omitted]. It follows that Parliament intended consent to mean the conscious consent of an operating mind. [43] [ 124 ] She also wrote that “there is no substitute for the complainant's actual consent to the sexual activity at the time it occurred.

It is not open to the defendant to argue that the complainant's consent was implied by the circumstances, or by the relationship between the accused and the complainant.

There is no defence of implied consent to sexual assault”. [44] [ 125 ] With respect to the defence of honest but mistaken belief, she wrote: At common law, this was a standard defence of mistake of fact: the accused was not guilty if he honestly believed a state of facts, which, if true, would have rendered his conduct lawful ….. it is not sufficient for the accused to have believed that the complainant was subjectively consenting in her mind: "In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question".

It thus is not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question. This is impossible if the complainant is unconscious. [45] [ 126 ] She concluded the reasons for judgment with the following

summary: The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance.

Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code . [46] [ 127 ] As recently as December 6, 2018, the Ontario Court of Appeal reaffirmed the principle that “a person who is asleep cannot consent to sexual activity”. [47] [ 128 ] E.D. invoked his right to remain silent on the sexual assault. I read nothing into that other than that there is no evidence before me as to what he was thinking at the time he began to have sexual intercourse with J.P.

There is specifically no evidence before me to even suggest that he believed that she was feigning being unconscious.

J.P.’s suggestion that he did so, based on either conjecture or a hearsay statement he is alleged to have made after the fact does not constitute evidence of that. [ 129 ] It is clear from both her statement to Detective Whittaker and from her evidence in court, that E.D. did not inquire of her as to whether she was conscious and if so whether she wanted to engage in intercourse. [ 130 ] So there is no basis for an honest but mistaken belief in consent defence here. [ 131 ] I am satisfied that the Crown has proven beyond a reasonable doubt that E.D. had sexual intercourse with J.P. without her consent. [ 132 ] Accordingly, I find him guilty of sexual assault.

[ 133 ] With respect to the threatening charge, I note that J.P. did not adopt any of her earlier statement regarding this during her oral evidence in court. [ 134 ] In his statement, E.D. denied threatening to kill her. [ 135 ] In all of the circumstances, I am not satisfied that the Crown has proven beyond a reasonable doubt that E.D. is guilty of threatening death. [ 136 ] I am dismissing that charge.

Count 6 Assault – December 2015 [ 137 ] Crown counsel conceded that this offence had not been proven beyond a reasonable doubt as we cannot discount the possibility of playfulness gone wrong or incidental contact. I agree. The charge will be dismissed. Count 7 Assault – January / February, 2016 [ 138 ] Crown counsel also conceded that this offence had not been proven beyond a reasonable doubt. Again, I agree. The charge will be dismissed. Count 8 Enter dwelling house with intent – July, 2016 [ 139 ] Crown counsel also conceded that the necessary intent had not been proven beyond a reasonable doubt.

Again, I agree. The charge will be dismissed. Count 9 Mischief to property – January, 2017 [ 140 ] In her statement to Detecive Constable Whittaker, J.P. stated that E.D. became angry and punched a hole in her closet door. [ 141 ] She confirmed this in her evidence in court. [ 142 ] In his statement, E.D. chose to remain silent regarding this allegation. [ 143 ] Based on all of the evidence from J.P. I am satisfied beyond a reasonable doubt that E.D. intentionally damaged her closet door, thereby committing mischief on this occasion. [ 144 ] I find him guilty of that offence.

Count 10 Criminal harassment – June and July, 2017. [ 145 ] The law is clear that in order to make out the offence of criminal harassment, the Crown must prove beyond a reasonable doubt each of the following elements: (1) that the accused has engaged in the conduct set out in section 264(2) (a), (b), (c), or (

d) of the Criminal Code . (2) that the complainant was harassed; (3) that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; (4) that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and (5) that the complainant's fear was, in all of the circumstances, reasonable. [48] [ 146 ] In this case I am satisfied that E.D. repeatedly communicated with J.P. as alleged in the Information and as proscribed in section 264(2) (b). [ 147 ] I am satisfied that J.P. was harassed and that E.D. knew that. [ 148 ] I am not however satisfied beyond a reasonable doubt that this caused J.P. to fear for her safety or the safety of anyone known to her. [ 149 ] Despite the best efforts of Crown counsel to get her to say that she feared for her safety during her evidence in court, she never did this. [ 150 ] She stuck to her story that she called the police to forestall E.D. or his mother calling the social services people and telling them things that might cause her to lose her subsidized housing. [ 151 ] She said the same thing in her statement to Detective Whittaker. [ 152 ] I am not satisfied that this constitutes fear for her safety or the safety of anyone known to her. [ 153 ] I note that she did say that she feared for her safety during her call to the 911 operator.

That was not evidence before me however. The call was introduced for the purpose of proving a prior inconsistent statement only and J.P. did not adopt that part of it where she said that she feared for her safety.

[ 154 ] I will point out that had she testified that she feared for her safety, I would have been satisfied that her fear was, in all of the circumstances, reasonable. [ 155 ] The Crown has failed however to prove one of the essential elements of this offence beyond a reasonable doubt. [ 156 ] This charge will be dismissed.

CONCLUSION [ 157 ] I make the following findings: Count 1: not guilty of assault Count 2: guilty of assault Count 3: guilty of mischief Count 4: guilty of sexual assault Count 5: not guilty of threatening death Count 6: not guilty of assault Count 7: not guilty of assault Count 8: not guilty of entering a dwelling Count 9: guilty of mischief Count 10: not guilty of criminal harassment. Released: January 17, 2019 Signed: Justice D.A. Harris