R. v. R.B., 2019 ONCJ 565

CITATION : R. v. R.B. , 2019 ONCJ 565 DATE : January 19, 2019 Information No . FD15 – 1554 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - R.B. Ms. A. Woolf for the Crown Mr. A. Fazari for the accused Reasons for Judgment An order has been made under s. 486.4 directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. NADEL, J .: Introduction [ 1 ] R.B., currently 41, and S.B. [1] , currently 45, had a sometimes volatile intimate relationship.

As children, they had been across- the-street neighbours. They reconnected on social media in 2012 and began to date. They cohabited between 2013 and 2015 until they broke up in April of 2015. [ 2 ] On May 5, 2015 after communicating through text messages they met and spent the rest of that night and much of the next day together.

What happened between them during those hours is the subject-matter of this trial. [ 3 ] As a result of SB’s complaint to the police, made in the late afternoon of May 6, 2015, RB is being tried on the following counts alleged to have been committed by him against her at his home: Count 1: assault, contrary to s. 266 of the Code ; Count 2: sexual assault, contrary to s. 271 of the Code ; Count 3: unlawful confinement, contrary to s. 279 (2) of the Code ; Count 4: threatening death, contrary to s. 264.1 (2) of the Code ; and, Count 5: suffocation to commit a sexual assault, contrary to s. 246 (

a) of the Code . The Recent History of the Couple [ 4 ] It is necessary to delve briefly into some of the history of the couple in order to understand the positions of the parties as well as to gain some perspective on the text messages exchanged between SB and RB on May 5, 2015. [ 5 ] RB and SB lived together at various times during their relationship. [2] They moved into a home owned by RB’s sister at […], Port Colborne and were living there on March 6, 2015. The couple had been arguing and in the early morning hours of that day RB told SB to leave their home.

SB used their “blue box” to break a pane of glass in their front storm door. RB called 9-1-1 and the police attended but neither SB nor RB were arrested. [ 6 ] RB testified that SB’s behaviour was much worse than how he described it to the responding police officers. He said that before the police arrived SB was outside of their home hitting herself in the face and yelling out that RB was hitting her and killing her. When the police arrived he did not voice these allegations to them. He testified that he downplayed her behaviour to the police so they did not arrest her.

Rather, they merely escorted her away for the night. [ 7 ] The couple reconciled and resumed living together the next day. Despite doing so SB called RB a “rat” for calling the police.

[ 8 ] The events of March 6, 2015 and SB’s labelling of RB as a rat play a

part in the Defence’s theory of what motivated SB’s May 6, 2015 complaints. Among other submissions, the Defence takes the position that SB harboured a persisting animosity toward RB because of his eviction of her on March 6, 2015. This persisting animosity was exacerbated by RB’s call to the police. His resort to the police intensified SB’s persisting ill will towards him because she had been convicted of and sent to the penitentiary for manslaughter in the early 2000’s.

Hence, she had a felon’s distaste for the police and especially for RB who was a rat and who could not be trusted. [ 9 ] Despite this fight and despite her name-calling, RB and SB immediately reconciled and recommenced living together. [ 10 ] In early April of 2015 the couple moved from their address in Port Colborne to a home that RB rented in Crystal Beach. They lived there as a couple for a few weeks before they argued once again. Once again RB evicted SB from their home.

This time the police were not called and RB does not say that SB committed any mischief. [ 11 ] They did not reconcile this time, although RB said that they did exchange some innocuous messages on social media afterward. [ 12 ] Late in April RB travelled to Alberta to work as a truck-driver. SB stayed on in Ontario residing with members of her family. After several weeks of work out west, RB returned to Ontario to live at […]. SB was living with her adult daughter, B., in Fort Erie, Ontario.

May 5 th and 6 th , 2015 [ 13 ] With that history in mind I now reproduce the substance of Exhibits 5 and 5(a), being a series of text messages that were exchanged between SB and RB during the evening of May 5, 2015. [3] Time Sender Message 9:09 SB So??? 9:10 RB Who dis 9:12 SB SB 9:12 RB Wats up witcha 9:13 SB Nvm 9:14 RB Wat do you mean? Do you wanna talk to me? 9:15 SB I’m wantin ta talk ta you Ya but really lost on what to say 9:16 RB Where 9:16 SB When 9:18 RB Now 9:18 SB Nows not good and what is it ya wanna talk about?

I don’t want to fight or be humiliated 9:19 RB I have no intention of fighting or any other kind of hostility. If we never take the chance to talk then we will never know. Idk I’m just so fuckin sad. 9:23 SB OK if you promise? Not to try to humiliate me or leave me stranded anywhere can you promise me that? 9:26 RB Yes

9:28 SB Tonights probably not the best because I’ve had a few beers 9:28 RB Where are u 9:33 SB At mine and B.’s new place Fort erie 9:34 RB Yeah, I mean like I’m gonna pick u up. Where 9:35 SB I said tonight’s not a good idea 9:35 RB When, then? Tomorrow at six o’clock. Where 9:38 SB Why 6?? 9:38 RB Idk just trying ta pick a time 9:40 SB Wanna meet at S. for a beer 9:41 RB When 9:41 SB How long would take ya get there 9:46 RB 45 min 9:49 SB Ok [ 14 ] SB and her daughter, B. met up with RB at S., a bar in Fort Erie, at some time after 10:00 p.m. on May 5, 2015.

While there are major differences in the recollections of RB and SB as to the specific events of the evening after leaving the bar, they agree that eventually RB drove SB to […], in Crystal Beach.

The differences between their recollections will be apparent as I sketch out the substance of their respective narratives as given in their direct examinations. [ 15 ] After doing so I will review the submissions of counsel as those submissions incorporate the admissions, omissions, and revisions obtained by counsel from the parties during their respective cross-examinations as well as referencing the evidence of other witnesses called at this trial.

The Complainant’s In-Chief Narrative [4] [ 16 ] SB broke up with RB because of the time he spent working out of province and because of the involvement of their families into their lives. They would fight and he would throw her out and she would have to stay with her mother. Ultimately she decided not to reconcile with him to avoid that pattern from reoccurring. [ 17 ] While RB brought a bag of her clothes and some odds and ends to her mother’s after the April eviction, her dishes, plates, blankets and furniture remained in RB’s possession.

When he first moved into her apartment in Fort Erie, she had an apartment full of belongings and she needed them back to start over again on her own. Getting her things back was what motivated her to text him on May 5, 2015. [ 18 ] SB didn’t know how many beers she consumed at S. Bar. She couldn’t say whether it was six or seven but, whatever the number, it was a normal amount for her. RB was keeping pace with her but he was also drinking shots of tequila with SB’s daughter, B.

SB and RB were equally intoxicated and on a scale of one to ten she estimates that she was at eight. [ 19 ] Despite being motivated to contact RB to initiate the return of her property they did not discuss that subject at all. They were just getting along and hanging out together. [ 20 ] She and RB left the bar together, without anyone else and went directly to his house on […]. She had no plan on getting to his house other than just to keep drinking and hanging out together. [ 21 ] At the house RB wanted to show her the bedroom that he had painted. He had also purchased a new bed in the hope that SB

would reconcile and return home to him. [ 22 ] They looked at the room and returned downstairs. She told him that the room looked nice but she was not moving back in. That was when things got ugly. [ 23 ] He was also upset by her comment that she did not like the way he had arranged some of the dining room furniture. RB complained that she “shit” (sic) on everything that he tried to do. He got angry and yelled at her and she yelled back at him.

They argued and he got on top of her on the loveseat in the living room and started to suffocate her by placing his hands over her mouth and nose. [ 24 ] He was mad and said a bunch of things to her throughout the night although she couldn’t remember exactly when he said these things.

He did say that because she had strangled a person he wanted her to feel what that felt like. [ 25 ] While she never lost consciousness he placed his hands over her nose and mouth repeatedly during those hours, perhaps “10 or 15 times”, “like it was a lot”, and she seriously thought that she “wasn’t going to make it through the night.” [ 26 ] She tried to fight him off and tried to stop him from suffocating her by hitting him and trying to kick him and by squirming to get out from underneath him but she could not.

These acts of suffocation went on all night so she was unable to say what happened after each incident. She said that she urinated once on the loveseat during these attacks. [ 27 ] In addition to suffocating her RB tried to bugger her. He told her that he wanted her to feel the way he felt, that she had “fucked him in the ass figuratively, so he was going to do it to [her] literally”.

He proceeded to pull her jeans and underwear down and off and he placed her on her stomach on the loveseat and tried, without success, to enter her anally. [ 28 ] He said he was going to do it and he was acting like he was going to do it but it never did happen. She could feel his penis touching her skin and she felt it rubbing at and poking at her anus for a few seconds but he was flaccid and not able to penetrate her. [ 29 ] That act happened very quickly and she wasn’t able to resist him because he was much the stronger and heavier person and held her down on her stomach.

She was yelling at him and stunned by what he was doing and she recalled saying, “are you seriously doing this? Like are you seriously gonna rape me right now?” [ 30 ] SB couldn’t recall if he made any response to her. Her jeans and panties remained where he’d removed them. [ 31 ] At this point she was naked below the waist. They continued to scream at each other. He obtained her phone and saw text messages from the man she eventually married and he “freaked out” about those messages. [ 32 ] At that juncture he tried to get her back upstairs.

To do so he stood over her and punched her on the top of her head twice. She sustained no injuries from the blows to her head other than some tenderness. He dragged her up the stairs by grabbing her shirt at her breasts which caused it to be pulled off her head along with her sports bra. [ 33 ] At that point, she was fully naked and she stopped resisting because she was terrified that he was going to kill her. He directed her to go into the newly painted bedroom where they stayed for that night.

He suffocated her a few more times in the bedroom and also bound her with tape and a long piece of coaxial cable. [ 34 ] RB had her put her hands behind her back. He then taped her wrists and ankles with painter’s tape and he then used a length of coaxial cable to loop around her neck. Then he attached that loop to her wrists and ankles so that she had to keep her knees bent and had to lie on her side. [ 35 ] Having tied SB up RB just laid beside her on the bed for hours.

He repeatedly told her that he was going to kill her and then kill himself and that he was going to burn the house down. [ 36 ] She was crying and pleaded with him to let her leave but he refused saying that “it’s gone too far now” and that she knew he couldn’t allow that to happen. He told her that she shouldn’t be able to live and be happy if he was not going to be happy. He told her that he knew that as soon as she left she would call the police and he would be in trouble and then she would be free to live her life. [ 37 ] SB slept fitfully for periods of time during the night.

She had to remain on her side given her bindings. In the morning she awoke to him sitting and staring at her. He then untied her and told her that they were going to go downstairs to watch TV. Again, she asked him to let her leave and again he said that he could not allow that. He gave her a pair of his shorts and one of his t-shirts to put on and they went downstairs and watched TV. [ 38 ] SB said that during these next hours she attempted to leave many times but was prevented from doing so by RB. She wasn’t allowed to leave the living room without him.

If she had to go to the bathroom he would lead her there by the arm and stand in front of the door so that she could not escape. [ 39 ] SB’s daughter had been trying to reach her by telephone. RB told SB to call her daughter. She didn’t want to do so because she was afraid that he was going to kill her.

She did not want to speak to her daughter because RB would be right there beside her if she called B. [ 40 ] They spent several hours watching episodes of The Walking Dead on the TV. [ 41 ] RB eventually fell asleep and SB began testing the soundness of his sleep by walking away from the living room and returning and walking away again. When she was satisfied that RB was in a deep sleep she fled the house wearing only the clothing he had given to her. She ran to her cousin P.’s home, which was very close to SB’s home. Her cousin’s back door was open and she went in.

It was some time after four o’clock in the afternoon.

[ 42 ] She called her daughter and her mother and told them about what had been happening to her. She knew her cousin’s work

schedule and expected her to be home momentarily and she watched out of the home’s front window waiting for P. to arrive. P. arrived and SB gave her a short version of what had been happening and P. drove SB to her mother’s home where the police were called, at about five o’clock in the afternoon. [ 43 ] She didn’t call the police from P.’s house because she didn’t want her cousin to come home and find police cars in her driveway. [ 44 ] SB said that she called the police because she was seriously terrified by what RB had done.

EMS also arrived along with the police and checked her out and she was taken by ambulance to a local hospital. [ 45 ] She recalled having bruises on her arms and legs and a mark on a forearm. She testified that she had bruises all over her arms but found it hard to remember where they were; but, she demonstrated that she had marks as a result of RB having pulled her by the wrists and shoulders. She did not recall having any facial injuries nor could she remember if she had any injuries elsewhere. [ 46 ] She believed his threats to harm her and him and the house because he repeated them and he seemed desperate.

Her requests to be allowed to leave caused him to repeat that he was going to kill her and himself. The Accused’s In-Chief Narrative [5] [ 47 ] He and SB had a good relationship except for the times when she drank to excess. They were close and they didn’t argue a lot; but, depending on how much she drank SB could become “demanding, violent and very controlling.” If she limited her consumption to four to six beers she was “all lovey-dovey” but if she drank more than that she got aggressive. [ 48 ] On March 6, 2015 they were both intoxicated and SB was angry about the manner in which he had spoken to her daughter.

He was upset by SB’s complaint since the incident that she was complaining about had not occurred.

They argued and she bit him during this altercation although he sustained no injury of substance. [ 49 ] He said, “If you’re unhappy then go – you don’t have to be here, there’s no reason to stay.” SB got her stuff and walked out and he locked the door behind her. [ 50 ] She then started banging on the door yelling and screaming to be let in and then she said, “You’re going to jail” and started hitting herself and screaming, “He’s killing me.” RB called 9-1-1 and SB, using their recycling box, then broke a pane of glass in their storm door. [ 51 ] The police responded to his 9-1-1 call but he declined to press charges.

He told them he simply wanted to get her removed and they took her away. [ 52 ] SB was angry that he called the police because only “rats” call the cops. She apologized to him the next day and they reconciled. [ 53 ] SB only had small and easily moveable stuff in that house. She had no furniture in that home. [ 54 ] He was aware of her prior criminal record, although until this trial he believed she had been convicted of murder.

Despite this act of violence he had no concerns for his own safety from her as he had known her all of his life. [ 55 ] After reconciling the March 2015 incident she moved back in and in April of 2015 they moved into […], Crystal Beach, a home that he rented. [ 56 ] Later in April they got into another argument. SB had been drinking and got upset with him as “she likes to inform me of what I’m doing wrong.” He was going back to work in Alberta and she was not happy about that. Once again RB told her that, “If you’re not happy then don’t stay, there’s no reason for you to be here – go.” And, she left.

She took a bag of clothes that night and he brought the balance of her things to her mother’s shortly before he left for Alberta. He did identify a blue blanket depicted in one of the police photographs taken at his home as belonging to SB. [ 57 ] After working in Alberta for some time he came home to Ontario and got the text message that begins the chain of messages quoted above at paragraph [13]. [ 58 ] RB got to the bar before SB and her daughter showed up. He was drinking a beer when they arrived, but was not sure of the time. They sat at a table and drank beer and sang karaoke.

Two men that he didn’t know but that B. apparently did joined them at their table. [ 59 ] RB drank five or six beers and left with SB before closing time because she suggested that they should go back to her apartment in Fort Erie. He drove her in his vehicle and B. and the two men drove in a different vehicle. At no point during their time together on May 5 th into May 6 th did SB ever mention or ask for the return of any of her property. [ 60 ] RB didn’t track how much SB was drinking that night, either at the bar or at SB’s home but everyone was laughing and talking and joking.

SB led him out of the living room and into her bedroom. There they copulated in the missionary position for a few minutes but he did not ejaculate because SB said, “Take me home.” So, they got dressed. SB then spoke to her daughter briefly but out of RB’s earshot. Then he drove her to his home on […], in Crystal Beach. [ 61 ] RB did not know what the time was. [ 62 ] While driving to his home, the radio was on and the two had been talking and joking. Without any prior warning, discussion or request, SB undid his pants and began fellating him until he ejaculated in her mouth.

She swallowed his ejaculate and he put his penis away.

[ 63 ] They arrived at his home after midnight. The house was in a messy state because he was painting its rooms. SB said that she did not like the way he had set up the furniture with the living room furniture in the dining room. [ 64 ] They sat on a loveseat and talked and kissed. That continued for a period of time, a “half hour or ten minutes” (sic). Both of them had their clothes on while on the loveseat. She said, “Let’s go upstairs to bed.” [ 65 ] They walked upstairs and undressed themselves.

She piled her clothes on the floor and he never touched them after she disrobed. [ 66 ] Once they were both naked they engaged in missionary sex for a few minutes. They engaged in sexual intercourse because she asked him to do it. While they were having missionary sex she asked him to bugger her, to “put it in my ass”.

He tried to accommodate her request but he did not have any lubricant and she asked him to stop because it hurt too much. [ 67 ] So, they went back to vaginal intercourse for a brief time but since he had already ejaculated he knew that “it just wasn’t happening again” and at that point he basically knew he was done and she was too and everything was still fine. [ 68 ] In answer to a direct question from his counsel about whether he had had any discussion at that time about SB moving back in with him, his answer was that he thought the conversation about SB coming back had happened on and off and so he agreed that they talked about it.

But he went on to add that her coming back to him wasn’t a “staple” (sic) for their relationship and he didn’t need her back. [ 69 ] SB had told him that she couldn’t trust a “rat” and that anybody that talks to the cops is a rat. He wasn’t happy about what she was saying to him. He told her that she couldn’t drink anymore if she wanted to come back. [ 70 ] They were still in the bedroom when she said, “If you want me to stay you know how to keep me here.” He confirmed with her that she meant she wanted him to tie her up, so he taped her wrists and ankles with painter’s tape, which was handy.

Her demeanour was good but she just ripped off the painter’s tape and said, “If you want me to stay you better tie me up properly.” [ 71 ] So, he went into the next room and cut the coaxial cable off at the wall as it was right there and handy. Starting at her ankles, while she was on her stomach, he then tied her wrists behind her back and then looped the cable around her neck and then tied the cable off back at her wrists. Her knees were bent at 90 degrees.

Having tied her up, he left the room. [ 72 ] He went downstairs and finished a beer and watched some TV for ten minutes and then came back upstairs and untied her. He asked her if everything was fine and she said it was. They were getting along and did not have any arguments. [ 73 ] SB was naked but she just grabbed some clothes off a pile of RB’s clothes and he did too. He just threw on a pair of jogging pants and a t-shirt and they went downstairs. [ 74 ] While going downstairs SB said that she had all of the episodes of The Walking Dead on a USB stick.

She got it from her coat and they watched these episodes sitting on the loveseat in the living room. They did not argue and he eventually fell asleep. [ 75 ] He was very hung-over when he awoke. She wasn’t there. He looked out his front and rear doors to see if she was outside smoking. [ 76 ] He had no concerns about her not being there because she knew people in the community of Crystal Beach, including her cousin P., who lived two minutes away. He didn’t go looking for her because he assumed she was coming back – that she’d gone to the store or to someone’s house. [ 77 ] He never refused to allow her to leave.

He never hit or choked or suffocated her. He never grabbed her breasts or dragged her upstairs. He never touched or moved her clothes. Her allegations are untrue. She never urinated on the loveseat as he sat on it and would have known had she done so. He never forced himself on her. He never threatened to kill her or himself or threatened that he would burn the house down. Additional Evidence [ 78 ] When RB, who is left-handed, was arrested at about 9:30 p.m. on May 6, 2015, he had a laceration to the palm side of his right wrist. The laceration was about 6 cm. in length and quite deep.

It went through the fatty tissues of RB’s wrist down to the layer just above the muscle and it looked like a straight line. It required two internal sutures and 13 external sutures to close. The emergency room physician who treated this injury believed that it was self-inflicted and felt that RB should be placed on a suicide watch but the physician did not “Form” him under the Mental Health Act . RB testified that he did not intentionally cut himself; rather, this injury was the result of his slipping and falling against a sharp vertical tile edge on the landing of the interior steps in his home. [ 79 ] P.C.

Howe was in the ambulance that transported SB to the hospital. He overheard some of the conversation that took place between the ambulance attendant and SB. What was said between them was a matter in dispute. The ambulance attendant was not called to give evidence. SB denied telling the ambulance attendant that she had been “raped all night long.” The Submissions of Counsel [ 80 ] The submissions of the Defence and the Crown differed substantially in format. Mr. Fazari took me through a serial review of the evidence given by the witnesses. Ms. Woolf dealt with the evidence in a

chapter format. Despite their differences in approach, each highlighted the admissions, concessions or inconsistencies that they submitted had been developed in the evidence. Additionally, they referenced some of the legal principles that apply in a case like this. I turn to those submissions now. The Submissions of the Defence [6] [ 81 ] Mr. Fazari began his submissions by characterizing the issue to be determined as a credibility contest, as a “he said / she said”

dispute where both parties had been drinking. I interjected then and confirm now that to frame the issue in that fashion would be anerror. The question is whether the Crown has proved the allegations to the exclusion of any reasonable doubt. Credibility is clearly aparamount issue in a case of this nature. As a result I will not err by approaching the issue as exemplified by R. v. W.(D.), (SCC), [1991] S.C.J.

No. 26, at paragraph [28]: 28 … A trial judge might well instruct the jury on the question of credibility along these lines: • First, if you believe the evidence of the accused, obviously you must acquit. • Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis ofthe evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [82] Without adverting to these stages of analysis directly, the Defence position is that the Crown’s case fails on all three of thesebases; viz.: (

i) that I should believe RB; (ii) that even if I don’t, I cannot reject his evidence and must acquit; and (iii) even if I reject hisevidence SB is so incredible that I must acquit. Mr. Fazari sought to identify aspects of the evidence that could apply to each of thesestages.

His ultimate submission was that: • given the frailties in the complainant’s evidence; • given the quality of RB’s evidence; • given the excessive use of alcohol by the complainant; • given her concession that engaging in sex with RB was a possibility if things went well; and, • given her advanced state of intoxication, then at a minimum, it would be dangerous to convict; that I must have a reasonable doubt and must find RB not guilty. [83] Relying on R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at paragraph [30] as a touchstone against which toassess the complainant’s professed lack of consent,[7] Mr.

Fazari submitted that aspects of the complainant’s conduct could be properlydescribed as ambiguous. Hence her denial of consent was incredible and should cause me to have a reasonable doubt about RB’s guilt.

The Defence’s Theory of Motive [84] Without being legally required to do so, but in support of a verdict of not guilty, the Defence offered to explain “why would [thecomplainant] make all these allegations up after having this night with RB?” That theory of motive was said to result from the followingcircumstances: • SB conceded that she tells her mother what’s going on in her life; • SB had an alcohol problem; • SB’s problem with alcohol affected her relationship with RB; • SB’s mother was aware of both of her problem with alcohol and her toxic relationship with RB; • SB’s mother was not happy that SB and RB reconciled after the March 2015 incident; • SB told her mother that her separation from RB was permanent after their April 2015 breakup; • SB’s mother had no contact with her on May 5th and 6th, which caused her to tell SB that she had “been worried sick” about SB’sabsence. [85] Given those circumstances, despite all of their contact having actually been consensual, when SB awoke on the morning of May6, 2015 she must have asked herself, “What am I going to do now?

What am I going to tell my mother?” [86] Mr. Fazari submits that SB realized that she had made a mistake to have this “encounter” (sic) with RB; that she was tooembarrassed and too ashamed of reneging on being quit of RB; and that she was so ashamed of having made her mother worry that she was motivated to lie about what had happened on May 5th and 6th. [87] Her motivation to lie about RB is corroborated by her failure to tell her mother that she and RB had been to a bar before theywent back to his home. Finally, Mr.

Fazari contended that SB had been embarrassed by RB; that he had been a “rat” in calling the policeon her and so she continued to hold a grudge against him. This is a further element that motivated her to lie about him. Credibility Deficits [88] This “lie,” (that RB picked her up at her Fort Erie apartment), that she told to her mother is corroborative of her shame over (i)socializing with RB, (ii) doing so at a bar, (iii) being the person who chose the bar as the place to meet, and (iv) abusing alcohol in theprocess. That is why she lied to her mother and told her she had been picked up at her apartment by RB.

This lie detracts from hercredibility because she was not truthful about the circumstances under which she met RB on May 5, 2015.

[ 89 ] The Defence contends the foregoing paragraphs explain why she lied to everyone when she alleged that RB had assaulted and confined her. Failing to Attempt to Escape [ 90 ] Mr. Fazari contends that SB’s behaviour belies her complaints. In his submission, since RB’s house was equipped with a front and back door and was not more than 30 to 40 feet deep, if SB was being subjected to the abuse that she testified to, she would have tried to escape and could have done so easily. Further, there was a chair somewhat blocking the opening between the living room and the kitchen, which, Mr.

Fazari implies would have aided her opportunity to escape.

The implication being that since she did not try to escape the events of which complaint is made did not occur. [ 91 ] In addition the Defence contends that all of the following circumstances also demonstrate “ambiguous” conduct that detracts from the credibility of SB’s complaints: • having fled to her cousin’s home she doesn’t lock its back door despite alleging that she was afraid of RB and despite him being only a few minutes away from her cousin’s home; • she’s at her cousin’s home for about 30 minutes yet she doesn’t dial 9-1-1 to call the police; • she waits for her cousin to come home and then calls her mother to report what has happened. [ 92 ] Mr.

Fazari submitted that, “That is ambiguous conduct – it’s not normal conduct.” … “If you’re afraid of a person who is four minutes away, you don’t just sit there and have tea [8] or talk and don’t call the police, you don’t call 9-1-1, you don’t lock the door if this person was the monster that [the complainant] portrayed him to be.” Mr. Fazari also submitted that SB went to the washroom and did not try to escape. [9] [ 93 ] In short, these failures to act as the Defence contends an honest complainant would should cause me to have doubts about the complainant’s credibility.

These failures to act amount, in the Defence’s submission, to the ambiguous conduct referred to at paragraph [30] of Ewanchuk . The Complainant’s Injuries [ 94 ] Neither SB’s mother nor cousin looked for or saw injuries on her body. Mr. Fazari submits that has some significance. It does not. [ 95 ] More relevantly Mr. Fazari’s main submission on this issue is that if one looks at the photographs of SB’s injuries they are not consistent with the description of the actions alleged to have been inflicted upon her.

The Defence contends that she does not exhibit the injuries that must have been inflicted upon her if the assaults occurred as frequently and as violently as she swore to. [ 96 ] Given how much and how often she was grabbed and pulled and hit and choked and suffocated she ought to be dramatically and visibly bruised and she is not. There are no injuries – the injuries don’t exist. Hence, she is incredible. She has made these attacks up.

Whatever happened between them was consensual. [ 97 ] While SB did exhibit some bruises, facial swelling and abrasions the Defence position is that she did not have them as a result of anything RB did to her and the Defence is not obliged to explain how she got them after she left RB’s home. The Defence contends that she had the opportunity to obtain them after she left RB’s home.

In short, any marks that she exhibited are inconsistent with the extent of the manhandling that she testified to and as such they decrease her credibility and raise a reasonable doubt. [ 98 ] This is especially so since she claimed to have extensive bruising all over her body but that claim is contradicted by the photographs taken by the police. No Urine Stain [ 99 ] SB claimed that during one of the early bouts of RB’s alleged suffocation of her she urinated in her jeans.

Initially she said that she urinated on the loveseat but subsequently said that she was not sure where she was when she lost control of her bladder. RB said he felt no wetness when they sat on the loveseat and no signs of urination were discovered anywhere in the home by the police. [10] Hence, there is not only no corroboration of this claim there is affirmative evidence from RB to discount it. Once again, SB’s credibility is suspect. Collusion [ 100 ] SB’s mother was interviewed by the police twice, once in 2015 and then again in 2017. Mr.

Fazari noted that there is additional information provided by her in her later statement. Her initial statement contains no mention of any attempted buggery but that information appears in her subsequent statement. The appropriate inference to be drawn is that SB discussed matters with her mother over the ensuing time between the statements so that the subsequent statement is the product of collusion between the two women. That, too, should cause me to be cautious about anything the mother said in that regard.

Officer Howe’s Evidence [ 101 ] Officer Howe travelled to the hospital with SB in an ambulance and while doing so he overheard the conversation that SB had with the ambulance attendant. He said that he understood SB to have told the paramedic that she had been raped all night long. As Howe had it the paramedic asked SB what happened and SB replied that RB attempted to rape her all night long and that he couldn’t get an erection and she was hog-tied by him. That was not what SB said in her evidence. This is another example of her changing her story.

It is another reason for the court not to credit her complaint of non-consensual sex with RB.

RB’s Wrist Wound [ 102 ] Officer Smith arrested RB at a little after 9:30 p.m. on May 6, 2015. When he cuffed RB he noticed an injury to RB’s right wrist. The injury was severe enough that he took RB to a hospital where the emergency room physician, Dr. Hanmiah, closed the wound with two internal sutures and 13 external ones. While RB was not intoxicated when he was arrested, he testified that he was still hung-over when he awoke. [ 103 ] While Dr. Hanmiah believed that this wound was self-inflicted he did not detain RB under the authority of the Mental Health Act as being a person who was a danger to himself.

If he truly felt RB had been or was suicidal he would have “ Formed ” RB. [ 104 ] Further, despite the doctor’s opinion that this wound was self-inflicted he acknowledged that it was possible that it could have been caused accidentally on the basis of a hypothetical that mirrored RB’s evidence. RB’s evidence was that the wound was the result of an accidental slip and fall in his home as he described in his evidence.

RB testified that he slipped and fell cutting his wrist against a sharply edged vertical tile that is on the right of the top rise of the stairway at the level of the landing. [ 105 ] In these circumstances the position of the Defence is that this wound is not available to be used as a piece of circumstantial evidence that supports the Crown’s allegations. It is not a piece of after-the-fact conduct that supports the Crown’s theory of guilt. SB’s Prior Criminal Record [ 106 ] SB’s prior criminal record was not filed as an exhibit.

She pleaded guilty to manslaughter in the strangulation death of an elderly male neighbour. That offence occurred on August 24, 2001 and the agreed statement of fact respecting that offence was filed, on consent, at this trial. In addition to being sentenced to the penitentiary for that offence SB was previously convicted of breach of recognizance for drinking in breach of her release on what became the manslaughter conviction. [11] She had also been convicted of another failure to comply with a bail release count in February of 2003.

She had an assault conviction recorded against her and she was at large and had failed to appear on a number of charges, (obstruct police, uttering threats, causing a disturbance and assault police) all from the same occurrence on March 12, 2013 in a western province. As submitted by the Defence, these were serious detriments to her credibility. Lying to the 9-1-1 Operator [ 107 ] As noted above at paragraphs [84] to [89], SB “lied” to her mother by telling her that RB had picked her up at her apartment, rather than telling her the truth – that she had met him at a bar.

Similarly, when SB spoke to the 9-1-1 operator from her mother’s apartment on May 6, 2015 in the late afternoon, she told the 9-1-1 operator that her ex had stopped by her apartment and that he wanted to talk so she got in his car. While SB did not recall saying that to the 9-1-1 operator when she was testifying, Mr. Fazari suggested to her that if she did say that then she was lying and her answer was, “I guess I did.” [ 108 ] Mr. Fazari contends that this is a major inconsistency with her trial testimony in many respects because “that’s not true, that’s not what happened. They met at S.

Bar.” Moreover, this is a lie that she told while she was sober. Once again, SB’s credibility is suspect. Language Issues [ 109 ] Mr. Fazari contended that SB was inconsistent by saying, on some occasions that RB assaulted her on the loveseat, and by saying that he did so on the couch on other occasions. Counsel suggested that that demonstrates she was lying because the police photographs show that the couch was covered with a variety of items and could not be sat upon at all. In my view it was and is obvious that while SB sometimes referred to the loveseat as a loveseat, she sometimes called it a couch.

I am satisfied that there is no contradiction in her evidence on that basis. Likewise, while she spoke of having her jeans ripped off, she did not suggest that she meant more than that they were pulled down and off with force. I am satisfied that she did not mean to imply that any item of her clothing had been damaged or torn so that the fact that her clothing was intact is no contradiction either. The Location of SB’s Clothing [ 110 ] The police photographs show that SB’s jeans, panties, shirt and bra were located in a pile in RB’s bedroom. SB said her clothes came off on the first floor and on the landing.

RB denied touching or moving her clothing. On that basis the presence of her clothes in the bedroom demonstrates that she lied about the events that led to her clothes being removed in those locations. [ 111 ] Even more significantly, that pile of her clothing has the jeans at the bottom, the panties on top of the jeans, the shirt on top of the panties and the bra on top of the shirt. That demonstrates that SB took her jeans off first and dropped them on the floor, she removed her panties next and dropped them on her jeans, and then her shirt and then her bra.

That bundle of the clothing in the bedroom is consistent with disrobing there and inconsistent with her testimony. That pile of clothes proves she undressed in the bedroom and puts the lie to her complaints. No Return of Property Discussions – the Defence’s Perspective [ 112 ] SB said that she was motivated to call RB to arrange for the return of her property. Indeed, she initiated the text messages.

Yet there is nothing in the text messages about that and both RB and SB testified that they never talked about the return of her property despite that being one of the reasons she contacted him. [12] Her failure to raise the issue with him ought to be seen as another example of ambiguous conduct. Likewise, her evidence that they left the bar and went directly to his home should cause me to have concerns about her credibility since it is clear that they left the bar and went to her daughter’s home before going on to his home together.

No Telephone Call to Her Daughter – No Daughter Called by the Crown [ 113 ] According to SB, her daughter was calling her and RB had urged her to call her daughter back. SB did not and refused to do so. Her failure to call her daughter when she had the chance to do so is incredible, given her allegations that she was being abused by RB.

[ 114 ] Further, Mr. Fazari suggests that the Crown ought to have called the daughter to testify. She would have had relevant evidence to offer. The failure of the Crown to do so ought to be a matter of concern to me. [ 115 ] Dealing with this latter point here, I reject that submission as being wrong in law. As the Court of Appeal recently held in R. v.

D.E. , 2018 ONCA 883 : [16] Third, the appellant asserts that the trial judge erred by not addressing the Crown’s failure to call certain witnesses, especially witnesses who were allegedly present in the RV, trailer and hotel where some of the incidents occurred. [17] We disagree. A trial judge should draw an adverse inference from the failure of a party to call a witness only with the greatest of caution: see R. v. Ellis , 2013 ONCA 9 , at para. 49 . Defence counsel present at the trial did not make such a request.

And the defence could have called the relevant witnesses, especially in the context of a trial where the accused testified. As I noted in colloquy with Mr. Fazari, he elected to call P.C. Howe as part of the Defence case and he could equally have subpoenaed the daughter, if he wished to hear from her about what she knew of the events of May 5, 2015. Two Matters of No Moment Raised by the Defence [ 116 ] Mr. Fazari asserts that SB’s evidence that RB bought a new bed and repainted his bedroom is significant because she said that he said he made these changes to try to convince her to return to him.

Yet, counsel submits that he could not know that she was going to text him so he could not have done those things to get her to come to him. Counsel says that SB made it sound like he knew she was going to contact him before she actually did and that he prepared the house and bought a new bed for her but that’s not the case. [ 117 ] In my view there is nothing to this point. There is evidence that he was interested in reconciling with SB. The text messages imply as much. SB’s evidence was that he did these things in aid of that desire.

That he told her that he did so once they got back to his house would not be in the least surprising. [ 118 ] Another matter continually referred to by Mr. Fazari was that SB becomes aggressive and even violent when she’d been drinking. That submission is merely an ad hominem attack that has no bearing or relevance to the positions of either party. RB never testified that SB was violent that night. No Sexual Assault Kit Completed [ 119 ] RB’s evidence was that he and SB engaged in sexual intercourse at her daughter’s home.

When SB was taken to a hospital on May 6, 2015, she did not undergo a sexual assault examination that included vaginal swabbing. In his cross-examination of SB, Mr. Fazari referred to that swabbing procedure as a “rape test”. He suggested to SB that she did not undergo that procedure because she had had consensual sexual intercourse with RB at her daughter’s home but in her story she denied engaging in that conduct. [ 120 ] Mr. Fazari suggested that she did not undergo that examination because it would demonstrate that she had in fact had consensual sex with RB at her daughter’s home.

The Defence’s position was that she refused to do the “rape test” because it would demonstrate that she had not been telling the truth about what happened between her and RB. [ 121 ] SB’s response was that she was not swabbed because there had not been any coitus so there was no point to the procedure. Their exchange appears at page 188 of SB’s examination: Q: … you were asked to do what we call a rape test. A: Yes. Q: You didn’t do it. A: No. Q: Why not? A: Because there was no penetration. ….

Q: So I’m going to suggest to you the reason you didn’t do the rape test was because there was penetration and then according to your story, it would come out that in fact there’d be DNA found in that area and that the DNA would have been RB’s DNA that there was sperm in that area. A: Well wouldn’t it have made more sense if I did get it? The Credibility Deficits of SB Recapitulated [ 122 ] SB conceded in her cross-examination that she may well have asked RB to “take [her] home.” She conceded that it was a possibility that she might agree to have sex with him that night.

The Defence urges that she did consent and all of her lies to the contrary are the result of a combination of being embarrassed to admit to her mother that she went back to him again and to some continuing ill will that she harboured towards RB because he was a rat. SB’s evidence should not be credited because: • she lied to her mother about how and where she met RB;

• she lied to the 9-1-1 operator about the same matters; • she had no signs of injury consistent with her complaints; • she failed to try to escape as she would have done if her complaints were true; • her clothes were found upstairs where she left them before engaging in consensual sex with RB; • she said she urinated on the loveseat and then contradicted herself; • she was not raped all night on her own version yet she told that to the paramedic. RB’s Evidence [ 123 ] RB’s evidence should be believed. He did not want to give their prior relationship another chance.

He merely wanted some sex that night and said conciliatory things to SB in order to obtain it. [ 124 ] His evidence was internally consistent and was not successfully challenged under cross-examination. Any corroborative physical evidence is consistent with his testimony; i.e., the painter’s tape, the coaxial cable and SB’s pile of clothing all found upstairs in the bedroom. Moreover, the USB stick containing the episodes of The Walking Dead belonged to and was provided by SB. [ 125 ] RB explicitly and completely denied all of SB’s allegations.

He explicitly and completely denied cutting his own wrist intentionally. His injury was the product of an unfortunate accident. His evidence and his denials ought to be believed but in any event they cannot be rejected and hence he must be found not guilty. The Submissions of the Crown [13] [ 126 ] Ms. Woolf divided the events of May 5 th and 6 th into four temporal chapters and organized her submissions in that manner. She submitted that one could identify aspects of the respective narratives that were consistent and likewise one could easily identify where the narratives departed.

Rather than attempting a seriatim review of her submissions I propose to review only those submissions that I feel are most relevant to the decisions that I must make. Return of Property Discussions – the Crown’s Perspective [ 127 ] The Crown submits that nothing turns on the fact that SB said she was motivated to contact RB to get her belongings back yet did not mention that motivation in the texts that the two exchanged. Likewise nothing turns on the fact that subsequently, while at S. Bar or her daughter’s house or at RB’s the subject of the return of her property did not arise. Ms.

Woolf’s submission is that her motivation to contact RB is a “neutral” fact on which nothing turns. They met at a bar so it would be impractical to conduct any exchange there. No inference against SB’s credibility ought to be drawn from either the fact that she did not get into the issue of a property return in their text messages or discuss it while things were going well between them. The couple had a history.

While the desire for a return of her property may have been the impetus for her approach to RB it did not bear fruit because their meeting developed into a social event. [ 128 ] In the Crown’s submission what is important to note is the palpable concern voiced by SB that she did not want to fight or be humiliated or mistreated by RB: Time Sender Message 9:18 SB Nows not good and what is it ya wanna talk about? I don’t want to fight or be humiliated 9:19 RB I have no intention of fighting or any other kind of hostility. If we never take the chance to talk then we will never know.

Idk I’m just so fuckin sad. 9:23 SB OK if you promise? Not to try to humiliate me or leave me stranded anywhere can you promise me that? 9:26 RB Yes 9:28 SB Tonights probably not the best because I’ve had a few beers The “Lies” SB was Accused of Telling [ 129 ] Ms. Woolf submits that SB told no “lies”. When SB gave her evidence in-chief she did not recall that after leaving the bar she and RB and her daughter and the others returned to her daughter’s apartment and tarried there awhile. While she did not recall that

portion of the evening she accepted Defence counsel’s suggestion that that had happened. Having agreed with him that that had happened she also agreed with his suggestion that she had therefore lied to her mother and the 9-1-1 operator about where and how she met up with RB. [ 130 ] The Crown submits that her failure to recollect those events did not mean that she “lied”. In the Crown’s view the stop-over at her daughter’s apartment before continuing on to RB’s home “wasn’t something that stood out in her mind as far as that evening goes”. Ms.

Woolf submitted that it should not detract from her credibility, that it was a short stop-over and what she was focusing on was what occurred at RB’s house as nothing untoward happened at her daughter’s. The partying mood, the drinking and enjoying themselves that began at the bar continued at her daughter’s home.

Hence, her failure to recall these events should not cause me to discount SB’s evidence, in the Crown’s submission. [ 131 ] Contrary to the Defence position that SB was actively engaged in trying to hide the fact that she and RB had consensual sex at her daughter’s apartment as RB contended, the Crown submits that the stop-over at her daughter’s was not an important event, that SB was not trying to actively hide that occurrence.

The Crown makes two submissions here. [ 132 ] First, when Defence counsel suggested to her that she had gone back to her daughter’s apartment, she appeared to have her recollection revived and she conceded that, “Ya that may have happened.” She did not fight or deny the suggestion when it was put to her. [ 133 ] Second, the Crown notes that SB said that she was not implacably adverse to engaging in sex with RB if matters developed in that fashion.

The Crown points to this concession as corroborative of its submission that SB had no motive to lie about whether there was consensual sexual intercourse prior to arriving at RB’s house. SB said that that was a possibility if things continued going on well; that that very well might happen, in her mind. So, the Crown submits that SB would not have had any motivation to lie about engaging in sex with RB at any location, if it had happened and was consensual. [ 134 ] In the same vein, since SB agreed with Mr.

Fazari’s suggestion that she may have asked RB to “take [her] home”, (she didn’t recall saying that but accepted that she could well have done so), her candour in admitting that it may have been her idea to go back to RB’s house increases her credibility. She had no hesitation in being alone with him as in her mind everything was going well; she was having a good time, sex was a possibility and she had no hesitation about going to RB’s house at that time. So, she did not lie.

Her memory may have been faulty but she was not being intentionally mendacious. [14] Reconciliation and Its Significance [ 135 ] The Crown submits that things changed when SB criticized RB’s renovations and declared that she would not reconcile with him and return to live with him. In the Crown’s view a fair reading of the text messages exchanged demonstrates that it was RB who was intent on effecting a reconciliation. He admitted that reconciliation was on his mind in his testimony.

On the other hand, the complainant was firm that she did not want to reconcile with him, that he was a rat and she could not trust him. [ 136 ] The Crown submits that RB reacted badly to being rebuffed in his desire for a reconciliation. His reaction was to commit the offences complained of by SB. Internal Inconsistencies in RB’s Evidence [ 137 ] Ms. Woolf noted two inconsistencies in RB’s evidence. The first had to do with RB’s profession that he did not want to reconcile with SB; that he didn’t want her in his life on any permanent basis.

He testified that the only reason that he got together with SB that night was because he wanted some sex from her. [ 138 ] The Crown submits that it makes no sense that RB would tie SB up at her request when he really did not want her there anymore at all. He had had sex, according to his version; first missionary intercourse at the daughter’s apartment, next fellatio to ejaculation in the car ride over to his home; then missionary sex in the bedroom followed by attempted anal intercourse in the bedroom and finally a resumption of missionary intercourse.

Significantly, whether he meant that after all of that activity he could not get an erection, (as Ms. Woolf inferred), or whether he meant that he could not ejaculate again, (as I understood him to be saying), he was spent. As RB said, “It wasn’t happening”. [15] [ 139 ] So, since all that he wanted from SB was sex and since he had had it and since he did not want her there for any purpose or reason other than sex it makes no sense that he would tie her up to keep her there. His evidence was that SB said, in effect, if you want me to be here you’ll have to tie me up.

But, he did not want her there other than for sex and he had had that so there was no reason for him to indulge her request. That evidence is incredible because, in the Crown’s submission, it is untrue. [ 140 ] There is another incredible and inconsistent aspect to RB’s version of the events. He said that after he untied SB she put some of his clothes on. Why would she do that? If what he said was true her clothes, the ones she chose to wear being the ones that fit her were right there.

Yet, instead of putting on her own undergarments and properly fitting clothing she chose to wear a pair of shorts that were so large that she had to hold them up with her hand, along with a t-shirt that was also too big for her; and, put them both on without putting on her panties or bra. That is simply unbelievable.

She had to use his clothing because her clothes weren’t there in the bedroom, they were down where she said they’d been removed by him. [16] Demeanour / Recent Complaint [ 141 ] While the doctrine of recent complaint has been abrogated, a fact-finder can consider a recent complaint as a circumstantial fact in support of a complainant’s credibility. The Crown submits that a recent complaint was made by SB. Further, SB’s demeanour as witnessed by people who knew her well, namely her cousin and her mother, was consistent with having just escaped from a harrowing experience.

Equally, the Crown submits SB’s physically injured state is also consistent with and corroborates her complaints. [ 142 ] SB was obviously emotional when talking to her mother over the phone. Her mother heard that her daughter was crying and her

voice was “shaky”. SB was less shaky when she arrived at her mother’s home within an hour from her escape but she was still crying. Likewise, SB’s cousin observed her to be emotionally upset. Her cousin described SB as trembling and said that she appeared to be very frightened and that she made a complaint of having been held captive and confined since the previous day. The point being that SB’s demeanour was congruent with her history of complaint. R. v. A.H.M. , [2018] O.J.

No. 2872 (C.A.) [ 143 ] A.H.M. , is a case that turned entirely on the credibility of the complainant on the one hand and on whether the evidence of the accused raised a reasonable doubt, on the other hand. The trial judge found reasons to question the credibility of both the complainant and the accused, yet convicted notwithstanding.

He did so because he found the complainant’s evidence was corroborated by a set of circumstances including that: • the complainant fled the house naked in February; • she left all of her belongings behind; and, • the complainant’s emotional state on fleeing as witnessed by a neighbour. [ 144 ] The trial judge found these circumstances to be “powerful confirmation of her evidence of being sexually and physically assaulted.” The Court of Appeal held that the trial judge was entitled to find corroboration in this evidence and the appeal court saw no errors in his conclusions and dismissed the offender’s appeal. [ 145 ] Ms.

Woolf argues that there is an almost complete analogy in the evidence adduced in this trial: • SB fled RB’s house; • while she was not naked, she fled without her bra and panties and without shoes; • she fled wearing clothing that did not fit her; • she left her cell phone in his home; • she sought immediate safety and help at her closest place of refuge; • her emotional state was consistent with her complaint of having been physically and sexually assaulted; and, • there was other corroborating evidence in the existence of injuries on her body. [ 146 ] Both Officers Howe and Sathmary saw injuries on her.

Howe saw noticeable swelling to the left side of her face and there was a red mark on her right wrist. P.C. Sathmary testified that he observed swelling and bruising to her left orbital bone, her right clavicle area had some small bruising, the left inside wrist had some slight redness and the left outside wrist displayed some bruising as well.

Moreover, there was a red mark on the inside of her right bicep that was consistent with being grabbed. [ 147 ] In light of these analogies, despite any shortcomings to SB’s credibility, the Crown urges that the facts in this case also powerfully corroborate SB’s complaint to the exclusion of any reasonable doubt. SB’s Credibility [ 148 ] The Crown acknowledges that this is a credibility case with two completely different versions of the events so that the court must consider SB’s credibility. Ms. Woolf submits that SB was a candid witness who did not embellish or exaggerate. The Crown noted that Mr.

Fazari had SB concede that she met RB at the bar and therefore that she “lied” about where she was picked up by RB or where she met RB, in her statement to her mother and to the 9-1-1 operator. The Crown notes that she ultimately accepted the suggestion that there had been a stop at her daughter’s apartment. Regardless, the Crown submits that this error was immaterial to the sequence of events and SB had no motive to lie about this issue. She accepted correction when Defence counsel suggested there had been a stop at her daughter’s home before she and RB went on to his house.

She readily admitted that that was a possibility and indeed eventually agreed that that stop had in fact happened. She was unshaken on material issues, in the Crown’s submission. Moreover, any frailties of her memory were on points that the Crown submits were peripheral; for example, how she ended up on the loveseat before being pinned down by RB; that while she could not recall the colour of her panties or socks she conceded the items that the police photographed were hers. [ 149 ] The Crown submits that these kinds of lapses in memory are normal and that their existence should not discredit her.

Moreover, she gave her evidence in a fashion that engendered emotion on occasion; that there was nothing off-putting in the manner in which she gave her evidence. As an example, she was reticent about describing RB’s attempt at forcing anal intercourse upon her. [ 150 ] SB said that she could not remember how each injury occurred but she remembered having bruises all over. The police photographs while not being of a good quality do not demonstrate extensive bruising and certainly do not demonstrate extensive bruising all over SB’s body.

The Crown’s submission in response to that is that bruising may take time or even days to appear and even though force may be used a bruise may never appear. In sum, the Crown’s submission is that the absence of evidence of bruising does not imply evidence of an absence of force having been applied to SB by RB.

The Crown’s Response to the Defence Theory of a Motive to Fabricate [ 151 ] The Crown submits that this theory, (that SB was motivated to make these complaints because she was embarrassed to have picked up with RB again despite telling her mother that she was not going to ever do that again), is unconvincing for a number of reasons. SB was a grown woman who did not need her mother’s approval to date. If this had been a consensual episode SB could have

carried on with her life and would not have had to tell her mother about it at all. But, because it was violent and a sexual assault she wentdirectly to her mother for help. If SB was concerned about her mother losing faith in her or if she was concerned about her mother losingrespect for her or being unsupportive she would not have resorted to and reported to her mother. SB felt that she needed support becauseshe was sad and upset. So, she went to her mother because her mother was the person who could give her that support.

SB’s evidencewas that she felt her mother would never turn her back on her; that while she might not support a relationship she would always be therefor her and her mother’s evidence was to the same effect – that she would always be there to support her daughter. [152] So, the Crown says there is no motive to fabricate, particularly such a violent and elaborate story. Likewise with the Defencetheory of animosity due to having had the police called about her by RB. Even though that had happened in March of 2015 the couplereconciled and continued to live together.

There was no subsisting animus; no evidence of any continuing animosity that would motivatethis complainant to create such an elaborate complaint. [153] The Crown submits that its submissions are corroborated by the text messages. It is clear from them that RB wants to see her thatnight but that she is reluctant because of their past experiences; she doesn’t want a repeat and he agrees that one won’t happen. What isclear from these messages is SB did not set out in a planned and premeditated manner to plot a frame of RB.

After-the-Fact Evidence [154] The Crown’s submission is that after RB woke up and found SB gone he decided to kill himself and made an attempt at doing soby cutting his wrist.

In the Crown’s view this theory is corroborated by SB’s evidence of RB’s repeated threats to kill her and himselfand to burn the house down. [155] The Crown notes that there is no way that she could have known about his attempt to kill himself before the police showed up toarrest him hours after she had told them of his threats, as she gave her statement before the police located and arrested RB. [156] That the injury to RB’s wrist was a self-inflicted wound is corroborated by Dr. Hanmiah’s opinion. While Ms.

Woolf acceptedthat Hanmiah was not qualified as an expert witness entitled to give opinion evidence both counsel agreed that I could receive hisopinion on the basis that his evidence was given by a lay person with specialized knowledge. [157] Dr. Hanmiah classified the injury as self-inflicted based upon its location, the shape and pattern of the wound, and the fact thatRB was left-handed and the injury was to his right wrist. While Hanmiah conceded that it was possible such an injury could be theproduct of an accident it presented in a fashion that was not consistent with an accident.

The doctor’s view was consistent with hisconcern about RB being suicidal. He did not Form him because he was assured by the police that RB would be monitored on a suicidewatch. [158] In addition to the foregoing, this suicide attempt was also consistent with RB’s statements to SB that he could not release her asthings had “gone too far.” [159] Finally, Ms. Woolf referred to R. v. G. (K.R.), [2012] O.J. No. 4434 (S.C.O.), where Parfett J. outlined the circumstances to takeinto account when considering whether a suicide attempt ought to be viewed as after-the-fact corroborative evidence of consciousness ofguilt.

Quoting from R. v.

White, 2011 SCC 13 at paragraph [20] of her judgment she noted: 20 It has long been noted that attempted suicide can, in appropriate circumstances, be construed as an attempt to escape forever fromthe consequences of criminal actions. (footnote in the original deleted) In the Williams case, the court stated, ... in my view, the evidence of attempted suicide was admissible for consideration by the jury as corroborative of the complainant'sevidence providing the jury were satisfied beyond a reasonable doubt in all the circumstances that the attempted suicide reflected aconsciousness of guilt and was not undertaken for other reasons. [160] Given the timing of this wrist cutting, coming as it did after SB escaped, the Crown urges that I see this injury for what it was, anattempt at suicide by RB because things had gone too far.

It is a piece of circumstantial evidence that corroborates SB’s account. It is anact that is inconsistent with his version of a pleasant evening full of consensual sex, an evening where SB merely leaves as opposed tohaving to escape. The Crown’s Submission on Officer Howe’s Evidence [161] The Crown’s submission is that Howe admitted that he did not overhear much of the exchange between SB and the paramedic. He said it was noisy in the back of the ambulance and SB’s head was away from him.

He only quoted words, that is to say put thembetween quotation marks, if he was certain that they were said. “Boyfriend” was in quotes as was tried to “rape her.” He conceded thatmore was said than what he noted down and he did not hear or put the words “raped her all night long” in quotes because he did notoverhear that. R. v. D. (J.J.R.), (ON CA), [2006] O.J. No. 4749 (C.A.) [162] Finally, Ms.

Woolf submitted that I ought to follow J.J.R.D. and explain my findings of guilty by a reasoned acceptance of SB’sevidence as being a legally satisfactory explanation for rejecting RB’s evidence so that it does not raise a reasonable doubt in my mind. Discussion and Reasons for Judgment[17] A Self-Charge on the Presumption of Innocence and the Onus and Burden of Proof [163] This is a criminal prosecution. The onus of proof lies solely on the Crown to prove the guilt of the accused to the requisitedegree. That burden is proof of guilt to the exclusion of any reasonable doubt.

This onus of proof never shifts from the Crown to theDefence. There is no burden on the accused to prove anything. RB is presumed innocent and he is entitled to the benefit of that

presumption of innocence unless and until that presumption of innocence is displaced by admissible evidence that proves his guilt to theexclusion of any reasonable doubt. The fact that the Defence suggested an explanation for SB’s complaint does not affect either the onusor the burden of proof. A Self-Instruction on Reasonable Doubt [164] The requirement that the evidence be sufficient to satisfy me to the exclusion of any reasonable doubt is directed to a state ofmind. It is the degree of persuasion that entitles and requires a fact-finder to find an accused guilty.

Reasonable doubt is not aninference or a finding of fact that needs support in the evidence presented at trial. An instruction on reasonable doubt is directed todescribing for the fact-finder how sure they must be of guilt in order to convict. The Application of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 [165] Mr. Fazari submitted that the Crown did not meet the high burden of proof that is cast upon the prosecution in a criminal case;that it would be dangerous to convict RB given, inter alia, the frailties of SB’s evidence. R. v.

Lifchus, [1977] 3 S.C.R. 320 explains thatproof beyond a reasonable doubt sets a standard of proof that is higher than a mere balance of probabilities, albeit less than proof to anabsolute certainty. By way of a clarification that leaves no room for misunderstand​ing, the Supreme Court of Canada in R. v. Starr, 2000SCC 40 , [2000] 2 S.C.R. 144 explained that the reasonable doubt standard falls much closer to absolute certainty than to amere balance of probabilities. [166] In order to ensure against making any inadvertent error a court cannot go wrong by following paragraphs [27] and [28] of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. Those paragraphs provide the following series of precepts and questions that aredesigned to ensure that the burden of proof and the presumption of innocence are the framework within which the Crown’s allegationsare assessed. 27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. (citations in the original omitted) 28 … A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. A Self-Charge to Avoid a Forbidden Line of Reasoning [167] In R. v. Y.M., (ON CA), [2004] O.J. No. 2001 (C.A.), Laskin J.A. identified an erroneous approach to cases,like this one, where the credibility of the witnesses is starkly conflicted.

This error would occur if I were to reason as follows: ‘I acceptthe evidence of the complainant; the accused’s evidence differs from the complainant's evidence on material matters; therefore I do notbelieve the appellant's evidence.’ Applying such a bald and unreasoned analysis would be an erroneous application of the onus andburden of proof.

But, as noted in J.J.R.D. at paragraph [53], an outright rejection of an accused’s evidence based upon a considered andreasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is an acceptable explanation for the rejectionof an accused’s evidence, even in the absence of an identified problem with the way an accused testifies or with an identified problem inthe substance of an accused’s evidence. [168] In lieu of attempting to paraphrase Justice Laskin’s succeeding paragraphs I shall simply quote paragraphs [32] to [35] here: 32 In W.(D.) at 758 Cory J. prescribed a three step formula for assessing credibility.

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. The recitation of this formula has become commonplace in trial reasons. What an appellate court looks for, however, is not its mererecitation but its application.

33 This court has said more than once that trial judges are not required to apply W.(D.) in the order prescribed by Cory J., or even touse his exact words. The structure of the judgment or rhetorical consideration may dictate a different order or different language. Butwhen assessing credibility trial judges should reflect W.(D.)'s underlying principles. 34 One principle - relevant in this case - is that trial judges must show they have considered W.(D.)'s middle ground: whether thedefence evidence in the context of the evidence as a whole leaves the trier of fact with a reasonable doubt.

Rosenberg J.A. discussed this point in the recent case of R. v. Minuskin, (ON CA), [2003] O.J. No. 5253 (C.A.) at para. 22:[18] (this footnote is notin the original text) 35 Here, the trial judge did not expressly address the second step or middle ground in W.(D.). As she had on the Sheppardsubmission, the

summary conviction appeal court judge concluded that the trial judge's failure to do so was not fatal. Again, I take adifferent view. The trial judge summarily rejected the appellant's denials solely, apparently, because he accepted the complainant'sevidence. However, this is not a case where the mere acceptance of the complainant's evidence inevitably meant that the accused had tobe found guilty.

And I am not satisfied that the trial judge considered whether the defence evidence, though not accepted,nonetheless raised a reasonable doubt. (emphasis added) [169] Accordingly, I instruct myself to avoid that forbidden line of reasoning. I shall not approach this case by saying to myself, as thetrier of fact, that if I accept the evidence of the complainant I must therefore reject the evidence of the defendant.

This forbidden line ofreasoning fails to honour the presumption of innocence and the burden of proof and insidiously shifts the burden of proof onto thedefendant to explain away the complainant’s evidence. [170] On the other hand, I am not to require the prosecutor to meet an unlawful burden that demands corroboration where the law doesnot require it. I charge myself in accordance with the governing principles as set out above and with the principles explained in R. v. Jaura, [2006] O.J. No. 4157 (O.C.J.), R. v. J.J.R.D., supra,[19] R. v. H.C., 2009 ONCA 56 , [2009] O.J.

No. 214 (C.A.), R. v.Hull, (ON CA), [2006] O.J. No. 3177 (C.A.), R. v. G.C., [2006] O.J. No. 2245 (C.A.), R. v. Holley, [2007] O.J. No.3871 (C.A.). [171] More particularly, at paragraph [5] of Hull, our Court of Appeal clarified and to some extent thereby rationalized the Y.M.principle with Jaura and J.J.R.D. in the following words: W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest.

Put another way, theyprohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence ofCrown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’stestimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of thewitnesses.

On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.[20] [172] I am also mindful of the need for care and caution where the case for the Crown is carried substantially, if not completely, by onewitness. Additionally, I find useful guidance in the decision of Mr. Justice Quinn in R. v. M.J.B., [1999] O.J. No. 2235 (S.C.O.).

Corroboration [173] Corroboration, “as commonly understood, refers to evidence from a source other than the witness whose evidence is challengedwhich is capable of confirming the veracity of the evidence of the challenged witness.” (R. v. Bo Zou, 2017 ONCA 90 at paragraph[40].) [174] I note further that corroborative evidence need not be corroborative of a material particular of the offences charged. Rather,evidence is corroborative if the evidence of the complainant which implicates the accused is corroborated in a material particular byother independent testimony. (See R. v. G.B., [1990] S.C.J.

No. 59 (S.C.C.) at paragraph [53].) Some Principles Dealing with Demeanour [175] Judges have repeatedly been warned against attempting to link credibility with a subjective judicial assessment of demeanour. (See, for example R. v. T.E., 2007 ONCA 891 at paragraph [4].) [176] That said, as noted in R. v. J.A., 2010 ONCA 491 at paragraph [16], it is not inappropriate to assess and weigh evidence relating tothe post-event emotional state of a complainant. That type of evidence was described by the Ontario Court of Appeal in R. v.

Varcoe(2007), 2007 ONCA 194 , 219 C.C.C. (3d) 397, at paragraph [33]: K.F.’s emotional upset was manifest the day following the assault; it was apparent to and noted by her family. Such evidence isadmissible and may be used to support a complainant’s evidence of a sexual assault. See R. v. Boss (1988), (ON CA),46 C.C.C. (3d) 523 (Ont. C.A.). The weight to be given this properly admissible evidence was exclusively a matter for the trial judge’sdiscretion.

[177] Following R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at 409 I have charged myself that if I believeRB when he denies having committed any of the offences with which he is charged I must acquit him. For reasons that I shall identify Ido not believe his denials. [178] Since I do not believe RB’s denials I must ask myself if I am left in a state of reasonable doubt about his guilt by virtue of hisevidence or as a result of the other evidence called or elicited by either side. I am not left in a state of reasonable doubt by the evidenceof his denials and I reject that testimony.

Moreover, I am not left in a state of reasonable doubt about his guilt by virtue of the otherevidence elicited in this trial. Why I Find RB Guilty of Counts 1, 2, 3, and 4 and Not Guilty on Count 5 [179] According to RB he and SB had a very pleasant evening and following day. By his version, at worst, SB went out for a smoke orperhaps to visit friends in Crystal Beach. So, she had no reason to complain about anything that happened to her while in his companyand she had no reason to be displaying signs of the application of force on her person. [180] Yet, she fl

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