R. v. I.F.L., 2022 ONCJ 234

ONTARIO COURT OF JUSTICE CITATION: R. v. I.F.L., 2022 ONCJ 234 DATE: 2022·05·17 NEWMARKET BETWEEN: HER MAJESTY THE QUEEN — AND — I.F.L. JUDGMENT NOTE: A s 486.31 publication ban applies prohibiting the publication of any information that could identify a witness in this case. Delivered: 17 May, 2022. Mr. Greg Elder.......................................................................................... counsel for the Crown Mr. Ralph Steinberg.......................................................................... counsel for the defendant KENKEL J.: Introduction [1] Mr.

IFL was charged with sexual assault on his wife. The complainant testified that her husband came home drunk oneevening after attending a work function at a restaurant. During a struggle he pulled down her pajamas and touched her sexually. Shecalled out to her mother for help and her mother intervened. The accused testified that he was not intoxicated when he arrived home thatnight. He was sleeping in a separate bedroom from his wife at the time, so when he got home he went directly to his room.

He had nocontact with his wife until the next morning. [2] In determining whether the Crown has proved the allegation beyond a reasonable doubt, the credibility and reliability of thefour witnesses is the central issue. The framework in R v WD, (SCC), [1991] SCJ No 26 applies. The Evidence [3] The complainant and the accused were married in 2012. They have one daughter. By 2019 the marriage was coming to anend. In May the complainant asked the accused to move out of the bedroom.

Thereafter he slept in the guest room on the same floor ofthe house. [4] The complainant testified that in June of 2019 her husband went to a restaurant for a work function. He returned home aftershe had gone to sleep. He did not go to the guest bedroom but came into her room where she was sleeping with her daughter. There was astrong odour of alcohol and he appeared intoxicated. He reached to take off her pajama pants and she pushed him away to stop him. Shepushed him off the bed onto the floor where he fell asleep for 10 to 15 minutes. [5] He awoke and again came onto the bed and grabbed at her pants.

She pushed him off again and told him to stop it as he

would wake up their daughter. He lay on the floor again and appeared to be sleeping for a while. She hoped he would stay asleep so she left him on the floor. [ 6 ] When he woke and entered the bed again, she left her side of the bed to allow him to sleep in a comfortable spot and avoid a confrontation. The accused then turned to their young daughter and started hugging her and touching her bottom in a sexual way. The complainant was alarmed and knew that she had to remove the accused from the room. She pulled him out of the bed and escorted him to his room.

He was wobbly and had difficulty walking but they made it to the guest room. [ 7 ] Once in the guest room the accused pulled her hard onto the bed. She struggled but he held her with one hand and started taking off her pajama pants with the other. She repeatedly told him to “stop it” and told him he would wake up everyone as her daughter and parents were nearby on the same floor. She saw his belt unbuckled. He touched her vagina when she had her underwear on.

When she realized she wasn’t going to be able to push him she screamed for her mother. [ 8 ] Her mother came into the room after the complainant’s third call for help. The mother yelled at the accused in Mandarin which he does not understand, and she pushed him away from her daughter. The complainant returned to her room. She testified that the accused came to her room much later that night and broke a string she’d used to tie the door handle. He asked her why the door was tied and she said he pretended not to know what happened.

That surprised her as she had sent a text to him immediately afterwards complaining about the incident. [ 9 ] The next morning she spoke with her mother. Her mother said the accused had been really drunk and she should understand his feelings were hurt by their marriage ending. She shouldn’t “make a big deal” about the incident in his bedroom. She didn’t report the incident as she didn’t want to create conflict in their divorce and she thought it would be better if they could get along as they had a child to raise together. [ 10 ] In January of 2020, the accused moved out of the home.

On July 18, 2020 he called her and said that he wanted her to pay for an apartment for him or he was going to move back into their home. She told him he could not move back in. He responded that he was heading to the house with his belongings. Later as she tried to leave the house in her car with their daughter and her mother the accused blocked her from leaving with his car. She tried to drive to the other side of the driveway and he blocked her again. She told him she had to go to the store, and he relented. The confrontation frightened her.

Combined with other issues she felt threatened and that caused her to go to the police. It was during the interview with the police that this complaint was disclosed. [ 11 ] The complainant’s mother awoke to screams from her daughter. She screamed “Mom”. She followed the screams to the guest room. She saw her daughter on the bed. The accused was on top of her trying to take off her clothes. The mother doesn’t have a clear recollection of the details as it was dark and quite chaotic when she entered. She pushed the accused off and pulled her daughter up off the bed. She escorted her daughter to her room.

She saw the accused fall to one side of the bed and it appeared to her he closed his eyes. [ 12 ] The complainant’s mother was in the car when the accused blocked it from leaving the driveway. She described him as appearing intimidating when speaking with her daughter and she considered his manner impolite. [ 13 ] The accused testified that he didn’t remember the date he went to the restaurant with his co-workers but he was able to retrieve the date by reference to an Uber receipt. He didn’t eat any food at the restaurant, but he did drink alcohol.

He said he was unable to obtain a credit card statement for that month. He did instead obtain a printout from the restaurant that showed a customer using Amex paid for two vodka and soda drinks within a short time and then a third later. He believes that reflects his purchases as he drinks vodka and soda. [ 14 ] He was able to summon a ride via Uber and when he got home he was able to enter the house and make it up to his guest room without waking anyone. He was not intoxicated. He did not enter the master bedroom that night and the alleged sexual assault in his room never happened.

He went to bed. [ 15 ] The accused agreed that in July of 2020 he did demand that his wife pay rent for him so he could move out of his parent’s home. He also agreed that he told her he was moving back into the house if she didn’t. He admitted that he blocked his wife’s car when she was leaving the driveway but explained that it occurred naturally as he was trying to turn into the driveway. He denied moving his car specifically to block her. The Submissions of Counsel [ 16 ] The defence submitted that the allegation of sexual assault is a fabrication made to gain advantage in family law proceedings.

The complainant made up the false complaint in order to prevent the accused from returning to the matrimonial home and she accomplished her purpose.

The complainant did not speak to the police until 13 months after the alleged incident. [ 17 ] The defence submitted that there were significant inconsistencies and issues in the complainant’s testimony including: • The delay in reporting the incident and the complainant’s reaction the day after the alleged incident in going ahead with a planned weekend away with her friends. • The fact that she let the accused drive her to the airport the next day along with her family even though he had been intoxicated the night before. • Whether the guest room door was open or closed during the incident – important because it would be unlikely to be closed if she had escorted the accused into the room as she described. • The complainant testified that the accused came back twice to her room but that wasn’t said in the initial statement to the police and is not consistent with the mother’s testimony on this point.

• The complainant described the accused as extremely intoxicated but later described him being able to push her down and remove her pajamas. [ 18 ] The defence submitted that there were several aspects of the complainant’s evidence that were unlikely and incredible: • The guest bedroom was closer to the parent’s room than the complainant’s bedroom so it’s not credible the accused would choose that place for a sexual assault. • The mother intervened but the incident somehow did not awaken the father and the mother did not seek his help. • Given the accused’s intoxication in the complainant’s room, despite some time asleep it’s unlikely he could recover to the point where he could push the complainant onto the bed and begin to undress her during a struggle, particularly where she pushed him toward the bed first. • It’s unlikely he could hold her down as she struggled, pull her pajamas down and begin to undress himself all at the same time. • It’s unlikely there would be no damage to any of her clothing or other corroborative evidence. • The day after the alleged incident, the complainant went ahead with a brief planned trip with two friends which is a reaction which is inconsistent with the events she described but consistent with the accused’s evidence that nothing unusual happened that night. [ 19 ] The defence submits that the accused was an honest, succinct, and credible witness.

There was a “huge contrast” between his demeanor and the demeanor of the complainant. The accused did not contradict himself in cross-examination so his evidence must at least leave a reasonable doubt. The complainant and her mother colluded on their evidence. The complainant deliberately “fudged the date” of the alleged incident to hide the fact of her trip afterwards. The complainant lied to immigration in the past regarding her father. Her reference to “taking him down” was a very memorable phrase in her evidence showing her true motivation.

The demands made in family court documents show a strong motivation to create this allegation. The complainant was an aggressive and “very motivated” witness and her evidence wasn’t credible. The defence submits that the Crown has failed to prove the charge beyond a reasonable doubt. [ 20 ] The Crown submits that the complaint’s evidence was internally consistent on the central points. While the evidence of the complainant and her mother wasn’t identical on every point, that shows that there was no collusion. Their evidence was consistent on all the important points.

There’s credible evidence that contradicts any assertion of recent fabrication or subsequent fabrication after that night. There’s no credible evidence that supports the allegation of fabrication. The notion that the witness would conspire with her mother to fabricate an allegation for family law advantage then make no complaint or effort to assert that fabrication for 13 months doesn’t make sense. [ 21 ] The accused testified that nothing unusual happened that night. It was only the charge 13 months later that caused him to think back and remember that evening.

Despite that, in examination-in-chief he was able to remember minute details about summoning Uber and his entrance into his home. In cross-examination that detailed memory evaporated. [ 22 ] When confronted with a text sent that evening to him by the complainant asserting the present allegation, the accused offered various excuses for not remembering that in his evidence including eventually that she accused him of rape so often that the accusations lost all meaning.

The Crown pointed out that none of this was put to the complainant in an otherwise very thorough and careful cross- examination, nor was it mentioned in examination-in-chief. The evidence of the accused on this point was evasive and incredible. [ 23 ] The Crown submits that the accused’s evidence was not credible and was proved false on several points. His evidence was not reliable given his drinking that evening. His testimony was inconsistent with the credible evidence of the Crown’s three witnesses and should be rejected. The credible evidence at trial proves the allegation beyond a reasonable doubt.

Analysis [ 24 ] I’ve considered the evidence as a whole and the findings of fact set out below are made in that context. The order of discussion does not reflect any limit in the analysis. The Accused’s Evidence [ 25 ] The accused IFL was an intelligent witness who is in the same field of business as his wife. His testimony was direct and detailed in examination-in-chief, but that changed markedly in cross-examination. His evidence was neither credible nor reliable. Accused – The Text Message [ 26 ] The accused initially testified that nothing remarkable happened that evening after he arrived home.

He had no reason to think about that night until he was charged 13 months later. [ 27 ] In cross-examination the Crown suggested to the accused that the evening of the alleged incident, he was made aware of his wife’s complaint of sexual assault as she sent him a text after she returned to her room. He admitted that was true, but he explained she had in fact sent many such text messages accusing him of attempting to rape her. Because he received so many of those messages the message on the night in question didn’t stand out to him. It was so common he became “unaffected by it”.

He didn’t save the message or any of the messages as he didn’t think they were important.

[ 28 ] He denied lying about nothing unusual happening that night. He repeated that allegations of attempted rape weren’t anything out of the ordinary for him. It was “very common” to receive them from his wife. Mr. IFL never mentioned this in examination-in-chief nor in the opening of cross-examination.

Over a day and a half of cross-examination the defence never suggested to the complainant that this complaint was but one instance in a pattern of many false attempted rape accusations. [ 29 ] The accused became argumentative during this portion of the cross-examination, blaming the problems with his answers on the way the Crown was asking questions. When the Crown pressed for specifics of prior similar texts by the complainant, the accused described messages complaining about his failure to take out the garbage or complaining that he forgot to do something or that he broke something.

None of his examples mentioned criminal activity much less attempted rape. [ 30 ] When the Crown asked him to provide examples of the many prior attempted rape complaints he was unable to describe even one. He was unable to explain the discrepancy between his memory of small complaints about taking out the garbage but nothing about serious criminal accusations. [ 31 ] The accused agreed that the very first time he received a text from his wife accusing him of attempting sexual assault was very upsetting to him – “of course” – yet he could not remember any detail of that message.

It happened “so long ago” and he didn’t pay attention to the accusation because it wasn’t true. He fell back on the general notion that his wife was constantly sending such messages, but he was unable to describe the details or even the general complaint in any one of them. [ 32 ] The accused denied responding to his wife’s text that evening and said he didn’t recall sending the messages she received that were read off her phone verbatim by the officer-in-charge of the case at the time of her interview.

He was evasive when pressed by the Crown about his knowledge via the text that the accusation included the fact that his child had been present in the room when the incident started. [ 33 ] In re-examination, the accused’s evidence expanded further when he testified that the texts sent by his wife accusing him of sexual assault happened both before and after the incident before the court.

Still no details were provided of even the recent complaints. [ 34 ] In reply the Crown called the complainant to confirm the contents of the text sent that evening that was so unremarkable that the accused paid no attention to it – “You tried to rape me, I had to scream, call my mom, I was really scared …”. She also testified as to his response. The officer-in-charge testified confirming that she viewed that text message on the complainant’s phone. [ 35 ] Cross-examination on this point showed that the accused was not a credible or truthful witness.

He became argumentative with the Crown as the tangled web resulting from his first explanation became harder and harder to explain. His evidence was internally inconsistent and illogical. It’s not credible that in a case where the defence alleges fabrication of a false complaint, evidence of a long history of similar false complaints by his wife about sexual assault would not be mentioned to her in cross and not be mentioned in his testimony in chief but would be revealed only during cross-examination.

His supposed indifference to those series of accusations in the context of a marriage breakup was completely incredible. [ 36 ] I note that the fact of the contemporaneous complaint is relevant only to the issue of recent fabrication discussed below and to this issue as to the accused’s knowledge at the time of the alleged incident and his subsequent actions. The contents of the text message were properly not referred to by the Crown in relation to the complainant’s credibility. Prior consistent statements may not be used for that purpose.

Accused – Recollection [ 37 ] The accused’s evidence in-chief indicated that although the events of the evening in question weren’t important to him until he was charged, he was able to recollect what he had to drink on the evening in question by finding a receipt that includes drinks of the types he orders. In cross-examination when it was pointed out that he didn’t appear to have a recollection independent of the receipt that he believed to be his, he replied that vodka and soda is the “drink he drinks” confirming recollection by reference to the receipt.

Later in his evidence that changed and he testified that independent of the receipt he recalled he had three vodka and sodas. [ 38 ] When asked in cross-examination who was with him that evening, he replied that he “honestly can’t remember”. When the Crown asked him about the very specific memories he had testified to in examination-in-chief about arriving home, entering the code to the house, entering in a specific manner and brushing his teeth he replied that they are things he specifically recalls as he remembers that night.

When pressed on that claim he admitted that he “remembers” entering the code to get in via the garage as there would have been no other way for him to enter and it was his usual practice. When asked about a specific memory of taking his shoes off that one night as he described he again referred to his general practice upon entering the house, but he then went back to saying he also had a specific recollection of doing that. Actual memory of those small details at that particular point was important as it was tendered to show the accused was sober and not intoxicated at the time he came home. [ 39 ] Mr.

IFL testified that he remembered taking an Uber that evening during his review of the audio interview with DC Murray. That caused him to look for an Uber receipt before trial. The Crown pointed out in cross-examination that not once during that interview did DC Murray mention Uber. [ 40 ] I find the accused’s evidence was shown to be internally inconsistent regarding the details of that evening. It is not credible that he remembered the numerous small details related to his arrival home but not other important details of the evening including a text sent to him accusing him of attempted rape.

His “memory” on several points was shown to be reconstructed through external evidence and reference to general practice. [ 41 ] As discussed below, there is also credible external evidence that the accused was intoxicated that evening. I find that detracts substantially from the reliability of his evidence as to the events of that evening. The Complainant’s Evidence

[ 42 ] The complainant was an intelligent and confident businesswoman who answered questions in detail in response to both the Crown and defence. There was nothing in her demeanor or her evidence that detracted in any significant way from the credibility of her testimony on the central points. She was sober on the evening in question, and I find her evidence was proved to be reliable. Her testimony was corroborated by the testimony of her mother who was also shown to be a credible and reliable witness.

Complainant – Animus Against the Accused [ 43 ] The defence submits that the complainant was an aggressive, very motivated witness who was plainly very angry with her husband. Her animus against the accused showed a strong motive to fabricate this complaint and showed that she is not a credible witness. [ 44 ] The complainant certainly agreed she wasn’t happy with her husband’s tactics in their family law dispute.

She also became fatigued in the second day of a very detailed cross-examination, but she was respectful and responsive to both counsel and there was no evidence of the animus suggested by the defence. [ 45 ] On the contrary, the complainant testified that the accused’s drinking and apparent intoxication that evening was out of character for him. The sexual assault was out of character. She was certain that he would never deliberately touch their daughter in a sexual way and when he did, she attributed that to confusion due to intoxication.

There’s no evidence of any animus on the part of the complainant that would detract from her credibility on the central issue much less fuel the fabrication of a complaint. Complainant – Delayed Complaint and Reaction to Sexual Assault [ 46 ] The defence referred several times in submissions to the 13-month delay between the incident and the complaint to the police. The fact that the complainant did not immediately raise a “hue and cry” cannot detract from the credibility of her evidence.

It’s long been recognized that the reactions of persons subject to sexual assault, particularly by intimate partners, may be complex and individual to that person. The delayed complaint happened to be otherwise reasonably explained by the complainant in her evidence. Complainant – Her Reaction after Sexual Assault [ 47 ] The fact that the complainant went ahead with a planned trip to Montréal with her friends the next morning does not reasonably detract from the credibility of her evidence given the context.

Trial courts have been warned against making stereotypical assumptions regarding reactions to sexual assault. This complainant is plainly a strong, stoic woman. After the incident she discussed the matter with her mother and decided not to pursue it further for the sake of her family and her hopes of an amicable divorce. She attributed the incident primarily to the accused’s drinking. In that context, and given the limited nature of the sexual assault, her choice to continue with her planned trip is neither incredible nor is it inconsistent with her complaint.

Complainant – Guest Bedroom Was Closer to Her Parents [ 48 ] The parent’s bedroom was along the hallway in between the complainant’s bedroom and the guest bedroom where the accused slept. The defence submits that the complainant’s evidence locating the sexual assault in the guest bedroom as opposed to her bedroom where the accused first attended is unlikely as it’s closer to the parents who might have heard the struggle. [ 49 ] That submission ignores a key difference – the accused’s daughter was asleep in her mother’s bedroom.

It is more likely that the accused would choose to compel sexual activity in his room rather than in the complainant’s bed with their daughter right beside her. Complainant – Father Didn’t Intervene [ 50 ] The complainant’s father did not intervene in the incident. The defence submits that it’s not credible that he didn’t waken if the complainant was calling out as she described. It’s not credible that her mother wouldn’t summon her husband as she intervened. [ 51 ] The mother explained that she responded because her daughter was crying out, “Mom”. The complainant’s father is older and hard of hearing.

He didn’t awake when the mother left the room. She was able to help push the accused off her daughter. The accused appeared to fall asleep afterwards and her daughter returned to her room. The evidence reasonably explains why the father didn’t intervene. Complainant – Account of Accused’s Intoxication Varied [ 52 ] The complainant described the accused as intoxicated when he attended her room. Even after periods of sleep she concluded he was touching their daughter thinking she was the complainant. Nonetheless she was able to pull and grab him out of the bed and take him to his room.

Even though he was “very wobbly” going down the hallway, once in his guest bedroom he was able to pull her hard down onto the bed. He was able to take off her pajama pants while holding her down during a struggle and then was able to undo his pants. The defence submits that it’s not credible that the accused’s sobriety could vary to this degree within the timeframe described. [ 53 ] The complainant agreed in cross-examination that she did not know how drunk the accused was that evening. He appeared quite drunk to her.

I agree with the defence that the evidence as to the accused’s state of consciousness or intoxication was not a straight line. It was a much more complicated history of periods of consciousness followed by periods of sleep.

There were periods where the accused was active but mentally confused, but also eventually a period where the accused was sufficiently focused and coordinated for a time to be able to hold down his wife. [ 54 ] I agree with the defence that the varying description of the accused’s intoxication is something that must be looked at closely in assessing the credibility of the evidence of all three witnesses. If the complainant’s observations were fabricated, they would not likely

have involved such a complicated narrative, but that’s an observation. I agree that the evidence can’t be accepted or assessed on that basis. [ 55 ] The complainant’s evidence that an intoxicated person may fall asleep and wake again several times, may later be pulled off a bed and moved with assistance then shortly afterward gain sufficient focus and strength to hold her down and pull down her clothing is not so outside the range of common experience as to be impossible.

Her evidence that the accused may for a time have had more strength and focus after some periods of sleep and movement down the hallway than he did earlier is not incredible. The complainant’s observation as to the accused’s condition was corroborated by her mother’s observations at the time she intervened. Both the complainant and her mother were sober at the time of their observations. [ 56 ] I find the complainant’s evidence and her mother’s evidence on this point was consistent and credible.

Complainant – Description of the Accused’s Actions Not Possible [ 57 ] The defence submits that the complainant’s evidence that the accused could hold her down with one hand and undress her with another is simply not credible, particularly given the accused’s alleged intoxication. [ 58 ] While the scene in the guest room is likely best described by the mother’s term as “chaotic” there is nothing impossible or unlikely about the complainant’s evidence that the accused could hold her with one hand and pull down her clothing and touch her with the other.

The complainant’s evidence on this point is corroborated by her mother’s credible testimony. Complainant – Description of Her Position on the Bed Varied [ 59 ] The complainant described bringing her husband to his guest room and throwing him towards the bed. She said she was then grabbed by him and thrown onto the bed. She recalled being face down. There was a struggle. Her mother thought that her daughter was face up when she entered the dark room, but she was uncertain as to other details given what she described as a “chaotic” scene.

She was certain that her daughter was on the bed and that the accused was on top of her undressing her which is consistent on the central points. [ 60 ] As the Crown notes, the variations on smaller details between the complainant and her mother shows no evidence of collusion. The mother’s brief and limited observations in the darkened room explain the lack of small details.

The dynamic nature of a struggle may be another reason for the different recollections as to the complainant’s position, but I don’t find the differences reasonably could leave a doubt as to the truthfulness of either witness or the reliability of their evidence on the central point – that the accused was on top of his wife undressing her when the mother entered.

Complainant – Lack of Clothing Damage [ 61 ] The evidence of the complainant described a struggle and the pulling of clothing, but I disagree that the evidence necessarily implied a level of force or violence such that the pajamas or the top would be ripped or damaged. The complainant’s evidence that her clothing was not ripped is not inconsistent with her evidence or the evidence of her mother. Complainant – The Accused Returned Later That Morning [ 62 ] The complainant testified that the accused returned later that morning and broke the string she’d tied around the door when he tried the handle.

She agreed in cross-examination that she hadn’t mentioned that in her initial statement. She explained that it was after the incident and nothing came of it so she didn’t think at the time to add it to her description of the sexual assault earlier. [ 63 ] Her mother testified that she sat outside the accused’s doorway until the early morning hours (5 a.m.) to ensure he didn’t leave. If she’s right about that time, then that may be inconsistent with her daughter’s evidence, or it may put the timing of the accused’s attendance later in the morning than the daughter thought.

Either way nothing comes of the attendance. I don’t find that the discrepancy reasonably detracts much from the evidence of either witness on the central points related to the allegation. Complainant – The Accused Drove the Next Day [ 64 ] The complainant was content to have the accused drive her to the airport the next day so she could go ahead with a planned brief trip to Montréal with two friends. The defence notes that circumstance is consistent with the accused’s testimony that he was not intoxicated that night when he returned home.

It’s inconsistent with the complainant’s testimony given her description of his intoxication the night before. The complainant’s mother doesn’t now recall that trip. [ 65 ] The complainant did not think that the accused was unfit to drive and on this point the accused agreed that he was not unfit. I agree with the defence that depending upon the timing, having the accused drive to the airport as planned may not have been a wise decision. It’s within common experience though that people may appear sober the next day even after a night of drinking.

While the accused’s driving the next day is consistent with his evidence as to his drinking, it is not necessarily inconsistent with the complainant’s evidence. Complainant – Fudged the Date [ 66 ] When the complainant first spoke to the police, it was over a year after the alleged incident. She recalled it happening in June of 2019 but could not recall the exact date.

The defence submits that she deliberately “fudged” or obscured the date to hide the fact that she went on a trip with two friends the next day. [ 67 ] The complainant’s evidence that she didn’t remember the precise date at the time of the initial statement was credible as the

timing of her statement was spontaneous, caused by the accused confronting her in her driveway and threatening to move back home contrary to her wishes. It was 13 months after the alleged incident. When her memory was refreshed during cross-examination by reference to Instagram posts, at first she didn’t think it was the same weekend, but she wasn’t sure.

Between the first and second day of cross-examination she checked her own records and on return advised the court in her continued testimony that indeed the defence suggestion was correct as to the date. [ 68 ] She was initially uncertain but not evasive on this point, and I find her inability to pinpoint the precise date at the time of the initial complaint was reasonably explained by the circumstances. Complainant – Family Court Documents [ 69 ] In cross-examination the defence put various aspects of family court documents to the complainant.

The defence submits that the strong assertions in those documents and the positions taken show a plain motivation to lie in these proceedings. [ 70 ] There is nothing of substance in the family law affidavits that is inconsistent with the complainant’s evidence in relation to these allegations. The word “horrid” was used to describe the sexual assault in an affidavit drafted by her lawyer.

The complainant testified that she wouldn’t necessarily use that word as she understands horrid as describing something more like a murder, but she is not a native English speaker and she did not direct that the word be deleted. That explanation was reasonable in context. [ 71 ] I disagree with the defence that there is much relevance in this case to tactical positions taken by family law counsel in regard to custody or other issues in those ongoing proceedings.

Complainant – Recent Fabrication and Subsequent Fabrication [ 72 ] The assertion that the complaint to the police was a fabrication designed to prevent the accused moving back into the matrimonial home and to otherwise gain advantage in family law proceedings is contradicted by the fact that the complaint was not recent, and it was not subsequent to the date of the alleged incident. It was asserted at the time of the alleged incident.

The complaint was not used or referred to by the complainant for 13 months despite the problems in her marriage as it moved towards divorce. [ 73 ] The fact of the contemporaneous complaint is relevant to timing only in relation to the allegation of fabrication. Of course, any prior consistent statements in the text of the complaint add nothing to the assessment of the complainant’s credibility which is measured solely on her evidence at trial.

Complainant – Immigration Document [ 74 ] The defence submits that the complainant deliberately provided misinformation to Canada Border Services in order to mislead that authority. That shows that she is a dishonest witness who is willing to mislead in order to accomplish a goal. [ 75 ] This was one of the first things the complainant was asked about in cross-examination. The complainant agreed that she had to clarify an immigration sponsorship document as she had used the term “father” to identify her mother’s husband. He was her stepfather not her biological father.

She explained that in Mandarin it’s not common to attach terms like “biological” or “step” when describing a father. The issue was clarified, and both her mother and stepfather came to Canada. [ 76 ] There’s no evidence that the complainant deliberately misled Canada Border Services to achieve some purpose. It’s plain from the result that either a father or a stepfather may be sponsored. There’s no evidence she had any reason not to be truthful or that she wasn’t truthful. There’s nothing in this collateral issue that could detract from the credibility or reliability of her evidence in this case.

Complainant – Take Him Down [ 77 ] The complainant’s evidence mentioned the phrase “take him down” which the defence submits was a memorable phrase that betrayed her intentions with respect to the accused. [ 78 ] I agree with the Crown that the phrase in context actually showed the opposite. In cross-examining the complainant on her reaction the day after the incident, the defence suggested that if the event actually happened she could have surreptitiously taped him and made an audio record of them discussing the incident to create independent evidence against the accused.

She agreed that if she wanted to “take him down” she might have done that, but that wasn’t her intention. She didn’t report the matter to the police for the sake of her family. There’s nothing in her evidence otherwise that shows any plan to “take down” the accused. The Mother’s Evidence [ 79 ] The complainant’s mother was sober at the time of the events in question. She made limited observations and was candid about the details that she couldn’t remember.

Her evidence differs on certain points from that of her daughter, including the exact position of the daughter when she entered the accused’s room, but she described the struggle she walked into as “chaotic”. The room was dark and she was there for a very brief time. [ 80 ] I agree with the defence that it’s unlikely that the door to the guest bedroom was closed given that her daughter would have had very good reason not to shut the door behind her when taking the accused back into his room.

If the witness recalled opening a closed door as she appeared to say as opposed to pushing open a door ajar then I agree that part of her recollection is unlikely. [ 81 ] The fact that the mother did not have a detailed script that synced with her daughter detracts substantially from the allegation that the two colluded to fabricate this complaint. Even though her evidence may leave some uncertainty on other details, her evidence on the central points directly relevant to the allegation was certain. The incident as alleged by her daughter did happen. She did cry for help

that evening. She was in the guest bedroom and the accused was trying to remove her clothes. In the context of all of the evidence, I find that the complainant’s mother was both a credible and reliable witness. Conclusion [ 82 ] Considering all of the evidence, I am unable to find that the accused was a credible or reliable witness. On certain points his evidence was plainly not truthful. I’m unable to place any weight on his testimony. It could not leave a reasonable doubt either alone or in combination with any other evidence. [ 83 ] The rejection of the accused’s evidence adds nothing to the Crown’s case.

It does not relieve the Crown of their burden to prove the allegation beyond a reasonable doubt. [ 84 ] In addition to the specific points discussed above, I’ve considered the totality of the evidence including the likelihood of all of the various circumstances described happening together in one incident even if independently they were reasonably explained. I’ve considered whether there is any credible evidence or circumstance that could reasonably leave a doubt. I’ve been unable to find any such evidence. I find that the complainant was a credible and reliable witness and I accept her testimony.

Her mother’s testimony corroborated her evidence on the central points. I find the Crown has proved the charge alleged beyond a reasonable doubt. [ 85 ] There will be a finding of guilt. [ 86 ] I thank both counsel for their thorough and very able submissions. Delivered: 17 May, 2022. Justice Joseph F. Kenkel