R. v. Fardy, 2023 NSSC 252

SUPREME COURT OF Nova Scotia Citation: R. v. Fardy , 2023 NSSC 252 Date: 20230809 Docket: CRK-507778 Registry: Kentville Between: His Majesty the King v. Jakob M. Fardy TRIAL DECISION Restriction on Publication: By court order made under subsection 486.4 of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner.

Judge: The Honourable Justice Joshua Arnold Heard: October 31, November 1, 2, 3, 7, 8, 9, 10, 2022, and March 29, 30, 31, April 3, 5, 2023, in Kentville, Nova Scotia, and July 18, 2023, in Halifax, Nova Scotia Final Written Submissions: July 21, 2023 Counsel: Robert Kennedy and Erica Koresawa, for the Crown Zeb Brown, for Jakob Fardy Order restricting publication - sexual offences 486.4

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

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

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

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

(2) In proceedings in respect of the offences referred to in paragraph (1)(

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

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

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

Table of Contents 1. Overview 5 2. Procedural History 5 3. Common Legal Issues 6 a. Reasonable doubt and the presumption of innocence 6 b. Credibility and reliability 7 4. The Offences 11 5. Essential Elements of Sexual Assault 13 a. R. v. W.(D.) 16 b. Credibility Across Counts 17 c. Collusion/Inadvertent Tainting 17 d. Alcohol and Drug Use and Bad Character Evidence 19 e. Prior Consistent Statements 19 6. J.M. 20 a. Sexual Assault on J.M. on March 26-27, 2020 20 b. Assault on J.M. of May 15, 2020 43 c. Group Chats 45 d. J.M.’s ability to attend court virtually 54 e. Argument Generally 56 i.

Argument (Sexual Assault of JM on March 26-27, 2020) 56 f. W.(D.) Analysis re: Sexual Assault 61 g. W.(D.) May 15, 2020 Assault with the book and pee pad 64 h. Conclusion regarding J.M. 65 7. R.B. 65 a. Assault on March 17, 2017 65 b. Sexual Assault of R.B. in April 2017 72 c. Argument 91 i. Assault of R.B. on March 17, 2017 91 ii. Argument (Sexual Assault of R.B. in April 2017) 92 d. W.(D.) Analysis re: March 17, 2017 Assault 95 e. W.(D.) Analysis re: Sexual Assault on R.B. in April 2017 97 f. Conclusion Regarding R.B. 98 8. S.M. 99 a. Argument 122 b. W.(D.) Analysis re: Sexual Assault of S.M. 127 c.

Conclusion regarding S.M. 129

9. E.L. 129 a. Argument 165 b. W.(D.) Analysis re: Sexual Assault of E.L. 174 c. Conclusion regarding E.L. 178 10. Conclusion 178 Overview [1] Jakob Fardy was charged with eight counts of sexual assault and assault between 2016 and 2020, in relation to fivecomplainants, J.M., R.B., S.M., E.L. and C.O. C.O. did not testify at trial and the charge relating to her was dismissed. The remainingcomplainants and Mr. Fardy were all young adults at the time of the alleged crimes.

This case highlights the role social media can have,and will continue to have, in sexual assault cases. [2] While the Crown called additional witnesses to corroborate certain peripheral aspects of the allegations, the principal directevidence against Mr. Fardy came from the four complainants. Mr. Fardy testified, denying all of the charges. Credibility is central to thiscase. So is reliability. [3] The Crown confirmed both before and during the trial that it was not making an application in relation to similar factevidence.

Therefore, the evidence of each complainant must be considered independently as it goes to the elements of the offences. However, the whole of Mr. Fardy’s evidence can be considered in relation to his credibility. [4] For the reasons that follow, I find Jakob Fardy guilty of sexual assault in relation to J.M., R.B., and S.M. and guilty of assaultin relation to R.B., not guilty of assault in relation to J.M. and not guilty of sexual assault in relation to E.L. Procedural History [5] The complainant J.M. is a social influencer. After the end of J.M.’s relationship with Mr.

Fardy, he and a friend accessed herInstagram account and deleted various photos and posts. J.M. reposted the photos and added the caption “Sorry for reposting this, mypsycho ex-boyfriend, Jakob Fardy, deleted all of my photos”. R.B., S.M., and E.L., who were not previously friends, but who also livedin the Annapolis Valley, saw these posts, and each of them had private electronic communication with J.M. about their own experienceswith Mr. Fardy. J.M. started an iMessage group chat, which eventually included R.B., S.M., and E.L., and several other women whoalleged similar experiences with Mr.

Fardy. [6] By way of Crown disclosure, 6,012 electronic messages, mainly communications between the complainants before, during andshortly after they each made their police complaints, were provided to the defence. The messages spanned July 2020 to November2020. Most of those texts were held to be admissible at trial (2022 NSSC 224). [7] A s. 8 Charter application was brought by the defence, in which Mr.

Fardy challenged the constitutionality of the search of hiscell phone on the basis that on its face the ITO did not set out reasonable grounds; the manner of the search went beyond what the searchwarrant authorized; the police scoured and/or “rummaged around” in Mr. Fardy’s phone unconstitutionally; and the police failed to keepdetailed notes of their search of the phone. The application was allowed in part, although most of the relevant seized information wasdeemed admissible (2023 NSSC 28). [8] The four complainants testified at trial between October 31 and November 10, 2022.

As a result of conflicting testimony aboutthe frequency and nature of ongoing group texts between November 2020 and November 2023, at the end of the Crown’s case Mr. Fardyapplied for disclosure of additional texts, and to re-cross-examine the complainants. I found that the additional group texts had somerelevance (2023 NSSC 54). I later ruled that some of those texts were admissible at trial and that the four complainants could be re-cross-examined (2023 NSSC 99). Common Legal Issues [9] While Mr.

Fardy is charged with assault and sexual assault in relation to four women, and while each criminal complaint mustbe dealt with individually since the Crown has not made an application for similar fact evidence, there are some legal issues in commonamong all of the charges, including reasonable doubt, credibility across counts and generally, collusion and/or inadvertent tainting, theessential elements of assault and sexual assault, and the W.D. analysis. Reasonable doubt and the presumption of innocence [10]

Section 11(

d) of the Canadian Charter of Rights and Freedoms provides that a person charged with an offence has the right“to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Mr.Fardy is presumed innocent of each charge unless the Crown proves each element beyond a reasonable doubt. Speaking for the majorityin R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory J. summarized the principles of reasonable doubt, as they should beexplained to a jury: 36 ...

It should be explained that: ∙ the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence;

∙ the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; ∙ a reasonable doubt is not a doubt based upon sympathy or prejudice; ∙ rather, it is based upon reason and common sense; ∙ it is logically connected to the evidence or absence of evidence; ∙ it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and ∙ more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty mustacquit. [Emphasis in original.] [11] In R. v.

Starr, 2000 SCC 40, Iacobucci J. stated, for the majority, that “an effective way to define the reasonable doubt standardfor a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities” (para. 242). Mere probability of guilt is never enough in a criminal matter. The Crown must prove the guilt of the accused beyond a reasonabledoubt. Credibility and reliability [12] The principles governing credibility assessment were summarized by Saunders J.A., for the court, in R. v.

D.D.S., 2006NSCA 34: [77] Before leaving the subject and for the sake of future guidance it would be wise to consider what has been said about the trier’splace and responsibility in the search for truth. Centuries of case law remind us that there is no formula with which to uncover deceit orrank credibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed togetherby seasoned judicial stirring will yield proof of veracity.

Human nature, common sense and life’s experience are indispensable whenassessing creditworthiness, but they cannot be the only guide posts. Demeanour too can be a factor taken into account by the trier of factwhen testing the evidence, but standing alone it is hardly determinative. Experience tells us that one of the best tools to determinecredibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up.

How does the witness’saccount stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminalcase? [78] In this regard I find it helpful to repeat the lucid observations of Justice O’Halloran in the oft-cited case of Faryna v.Chorny (BC CA), [1952] 2 D.L.R. 354 at 356: . . .

But the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or thecircumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these thingsare elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case asa whole and shown to be in existence at the time; and cf. Brethour v. Law Society of B.C., (BC CA), [1951] 2 D.L.R.138 at pp. 141-2.

If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a veryunfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisivelyto the conclusion that he is actually telling the truth.

I am not referring to the comparatively infrequent cases in which a witness is caughtin a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can betested in the particular case. (Underlining mine) While his comments were not expressed in the context of a criminal trial, observations similar to Justice O’Halloran’s have often beenemphasized in criminal cases, with suitable allowance for the different standard of proof. [13] In Baker v.

Aboud, 2017 NSSC 42, Forgeron J. summarized the principles governing credibility assessment (some citations

omitted): 13 Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault, 2009NSSC 59, as approved in Hurst v. Gill, 2011 NSCA 100, which guidelines include the following: * Credibility assessment is not a science. It is not always possible to "articulate with precision the complex intermingling of impressionsthat emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. c. Gagnon, 2006SCC 17(S.C.C.), para.20. ...

"[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise andcomplete verbalization:" R. v. M. (R.E.), 2008 SCC 51(S.C.C.), para. 49. * There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety: Novak Estate,Re, 2008 NSSC 283(N.S.S.C.). On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach differentweight to different parts of a witness's evidence, Novak Estate, Re, supra. * Demeanor is not a good indicator of credibility: R. v.

Norman (1993), (ON CA), 16 O.R. (3d) 295 (Ont. C.A.) atpara. 55. * Questions which should be addressed when assessing credibility include:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony and the documentary evidence, and the testimony of other witnesses: NovakEstate, Re, supra;

b) Did the witness have an interest in the outcome or were they personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which they testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorny...;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [14] The majority in Lifchus acknowledged that “certain doubts, although reasonable, are simply incapable of articulation” andstated that a “juror should not be made to feel that the overall, perhaps intangible, effect of a witness’s demeanor cannot be taken intoconsideration in the assessment of credibility” (para. 29). [15] A related principle to credibility is reliability. Reliability can take on a significant role when dealing with the passage of timeand/or the use of intoxicants.

The relationship between reliability and credibility was explained in Cameco Corporation v. TheQueen, 2018 TCC 195: [11] The reliability of a witness refers to the ability of the witness to recount facts accurately. If a witness is credible, reliabilityaddresses the kinds of things that can cause even an honest witness to be mistaken. A finding that the evidence of a witness is not reliablegoes to the weight to be accorded to that evidence. Reliability may be affected by any number of factors, including the passage oftime. In R. v. Norman, (ON CA), [1993] O.J.

No. 2802 (QL), 68 O.A.C. 22, the Ontario Court of Appeal explainedthe importance of reliability as follows at paragraph 47: . . . The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable.Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount. . . . [16] As noted above, a trier of fact can believe some, none, or all of any witness’s testimony, including that of the accused. The offences [17] Sections 265 and 266 of the Criminal Code describe the offence of assault: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly… Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. 266. Every one who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(

b) an offence punishable on

summary conviction. [ 18 ] The offence of sexual assault is created by s. 271, which states: Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [ 19 ]

Section 265 of the Criminal Code deals with the defence of consent in relation to assault and sexual assault: Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority. Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [ 20 ] Sections 273.1 and 273.2 of the Criminal Code expand on the issue of consent in the context of sexual assault: 273.1

(1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Consent

(1.1) Consent must be present at the time the sexual activity in question takes place. Question of law

(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law. No consent obtained

(2) For the purpose of subsection (1), no consent is obtained if … (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. 273.2 It is not a defence to a charge under

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

a) the accused's belief arose from (

i) the accused's self-induced intoxication, (ii) the accused's recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

(

c) there is no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or activelyexpressed by conduct. Essential Elements of Sexual Assault [21] In R. v. Al-Rawi, 2018 NSCA 10, Beveridge J.A., for the majority, reviewed the elements of sexual assault, as set out in R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330: [19] R. v. Ewanchuk ... is the seminal decision on the elements the Crown is required to prove in a sexual assault prosecution.

Thedecision cemented the demise of implied consent and reinforced the necessity of focussing on the subjective state of mind of thecomplainant to determine if he or she did not consent to the sexual touching. [20] The actus reus of the offence is simply the intentional sexual touching of the complainant and the absence of consent. JusticeMajor, for the majority, wrote: [23] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actusreus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intention totouch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. ... [25] The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and(iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused hadany mens rea with respect to the sexual nature of his or her behaviour... [26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred... [22]

Section 273.1 defines “consent” as “the voluntary agreement of the complainant to engage in the sexual activity in question.” The majority in R. v. Hutchinson, 2014 SCC 19, described a two-step process for analysing consent to sexual activity. McLachlin C.J.and Cromwell J. said: 4 ... The first step is to determine whether the evidence establishes that there was no "voluntary agreement of the complainant to engagein the sexual activity in question" under s. 273.1(1).

If the complainant consented, or her conduct raises a reasonable doubt about the lackof consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3)defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant's ostensible consent orparticipation...

Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained incircumstances of coercion (s. 265(3)(

a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(

d) and 273.1(2)(c)). [23] In Al-Rawi, Justice Beveridge explained the significance of the complainant’s subjective state of mind in the context ofthe actus reus: [42] With respect, there is nothing in the words of s. 273.1(1) that suggest the Crown need establish communication of a voluntaryagreement to prove the actus reus of the offence of sexual assault.

The issue of communication, or lack thereof, of a voluntaryagreement is highly relevant to the issue of the mens rea of the offence—that the accused knew that the complainant did not consent tothe activity in question—particularly in light of the statutory requirement in s. 273.2 of the Code that an accused took reasonable steps toascertain the existence of consent. … [48]... Consent is entirely an inquiry into the subjective state of mind of the complainant, not about what she did or did not communicate.Major J. succinctly summarized this principle.

I quoted from his judgment above, but it is convenient to repeat it: [26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred... [49] This is also reinforced by the majority reasons for judgment later written by McLachlin C.J. in 2011 in R. v. J.A., supra where shestressed the difference between the actus reus and mens rea of the offence of sexual assault. The issue of communication of consent isonly relevant to the issue of mens rea.

She explained: [37] The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must be consciousthroughout the sexual activity. Before considering these provisions, however, it is important to keep in mind the differences between themeaning of consent under the actus reus and under the mens rea... Under the mens rea defence, the issue is whether the accused believedthat the complainant communicated consent. Conversely, the only question for the actus reus is whether the complainant wassubjectively consenting in her mind.

The complainant is not required to express her lack of consent or her revocation of consent forthe actus reus to be established. [24] In R. v. Barton, 2019 SCC 33, Moldaver J., for the majority, again reviewed the role of consent in a sexual assault analysis: 89 Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant inher mind wanted the sexual touching to take place"... Thus, at this stage, the focus is placed squarely on the complainant's state of mind,and the accused's perception of that state of mind is irrelevant.

Accordingly, if the complainant testifies that she did not consent, and thetrier of fact accepts this evidence, then there was no consent -- plain and simple... At this point, the actus reus is complete. The

complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established... 90 For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent,"consent" means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexualactivity with the accused"...

Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether theaccused honestly believed "the complainant effectively said 'yes' through her words and/or actions"... [Citations omitted.] [25] In Ewanchuk, Major J., for the majority, commented on the process of analyzing credibility with respect to consent: 61 In sexual assault cases which centre on differing

interpretations of essentially similar events, trial judges should first considerwhether the complainant, in her mind, wanted the sexual touching in question to occur. Once the complainant has asserted that she didnot consent, the question is then one of credibility. In making this assessment the trier of fact must take into account the totality of theevidence, including any ambiguous or contradictory conduct by the complainant.

If the trier of fact is satisfied beyond a reasonable doubtthat the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to the accused's stateof mind. 62 If there is reasonable doubt as to consent, or if it is established that the complainant actively participated in the sexual activity, thetrier of fact must still consider whether the complainant consented because of fear, fraud or the exercise of authority as enumerated in s.265(3). The complainant's state of mind in respect of these factors need not be reasonable.

If her decision to consent was motivated byany of these factors so as to vitiate her freedom of choice the law deems an absence of consent and the actus reus of sexual assault isagain established. R. v. W.(D.) [26] Jakob Fardy elected to testify. In R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, Cory J., for the majority, instructedtriers of fact on how to apply the burden of proof where evidence has been led on behalf of the accused.

Noting that the “trial judgeshould instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses” (para. 27), he set out the followingsequence, at para. 28: 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... [27] In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, Charron J., for the court, commented on the application of the W.(D.) analysis: 23 The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.).

Indeed, as Chamberland J.A. himselfacknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct stepssuggested in W.(D.); it will depend on the context... What matters is that the substance of the W.(D.) instruction be respected. In a casethat turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’sevidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judgemust consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt... [28] I must undertake the W.(D.) analysis in this case. Credibility Across Counts [29] In R. v.

P.E.C., 2005 SCC 19, Charron J. explained for the court, how to assess credibility across counts: 1 …The verdict on each count of an indictment must, of course, be based on evidence admissible with respect tothat count; in assessing the credibility of each witness, including the accused, the trial judge was entitled, however, to consider thetotality of the evidence given by that witness. In doing so, she did not engage in a prohibited line of reasoning contrary to the rule againstsimilar fact evidence.

Collusion / Inadvertent Tainting [30] The complainants in this matter engaged in extensive conversations with each other on social media and in person. The defencehas not raised any suggestion of deliberate collusion, and I am satisfied that there is no foundation for such an allegation. In assessing theevidence, I am, however, mindful of the possibility of “inadvertent tainting” affecting the reliability of witnesses’ evidence. The OntarioCourt of Appeal described this phenomenon in R. v.

C.G., 2021 ONCA 809, using the term “inadvertent collusion”: [28] As I have intimated, the term “collusion” has been used to describe two different phenomena. The first is deliberate or “advertentcollusion”, that is, where witnesses get together and fashion their evidence in concert in order to appear to be reciting a consistent andreliable story. The other, commonly referred to as “inadvertent collusion”, occurs where one witness discusses the events with anotherwitness with the consequence that the evidence of one or both of them may be altered.

Put another way, a witness’ evidence may be“inadvertently” impacted by the fact that they have heard the evidence of other witnesses which “can have the effect, whetherconsciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”: R. v. B. (C.) (2003), (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 40. This point was made in R. v. F. (J.) (2003), (ON CA),177 C.C.C. (3d) 1 (Ont. C.A.), where Feldman J.A. said, at para. 77: The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also

by the influence of hearing other people’s stories, which can tend to colour one’s

interpretation of personal events or reinforce aperception about which one had doubts or concerns. [29] While the issue of collusion most often arises when a court is considering the admissibility of similar fact evidence, it is an issuethat has relevance to the evaluation of a witness’ evidence in general. [31] Nordheimer J.A., for the court, added that “the term "collusion" connotes conspiracy, which is a credibility concern.

It wouldbe better if the term "inadvertent collusion" was avoided and replaced by the term "inadvertent tainting"” (para. 30), but retained the termused by the parties for the purpose of the decision. He elaborated on the concept as follows: [32] The second form of collusion, “inadvertent collusion”, is more difficult. The fact that one witness has heard what another witnesswill say, or for that matter has even discussed what another person’s recollections were, does not mean that either witness is not tellingthe truth, or is not giving their independent recollection, or that their evidence has been tainted.

Indeed, even where the evidence of oneof the parties to the discussion is inadvertently affected by what another person has said, the account of that other person may notchange. For example, in this case, it is possible that when, during the joint meeting with the defence lawyer, the appellant’s wife offeredreasons why the appellant could not be guilty, the appellant did innocently incorporate those reasons into his testimony, but that does notmean that his wife’s observations were inaccurate or that her testimony had changed as a result of their discussion.

Nor does itnecessarily follow that the appellant’s testimony became unreliable. He may have recognized from his own knowledge the truth andimportance of what his wife had observed. The key point is that, unlike advertent collusion which corrupts the evidence of allparticipants, where inadvertent collusion has occurred, a close examination is required to determine what impact that innocent sharing ofinformation may have had on the evidence of each of the witnesses who is a party to the exchange. As Sopinka J. said in R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, at para. 45: Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances,including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were usedfor such a purpose. [Emphasis in original.] [32] As will be apparent, a large proportion of the communications between the complainants in this case was in evidence, and thecomplainants were cross-examined extensively.

I am satisfied that there is little or no basis to find that such “tainting” of J.M., R.B.,and/or S.M.’s evidence actually occurred, but I have nevertheless been cognizant of any potential affect of these communications on thereliability of the respective complainants’ testimony. Alcohol and Drug Use and Bad Character Evidence [33] The Crown questioned several witnesses, including Mr. Fardy himself, about Mr. Fardy’s drinking history, experience withdrugs, his partying, and his overall lifestyle around the time of the alleged offences.

I will not consider any evidence of bad characterthat might be inferred from this evidence, if evidence of a young person regularly partying and using alcohol and drugs is considered badcharacter evidence. Nor will I consider that evidence in relation to Mr. Fardy’s general credibility and reliability. However, I willconsider evidence of Mr.

Fardy’s drug and alcohol consumption and subsequent behaviour, including apparent intoxication, in relation tohis credibility and reliability regarding the specific events in question. [34] I note that the witnesses routinely described quantities of alcohol in terms of “quarts” and “pints.” By this I take them to meanlarge and small liquor bottle. I am satisfied that nothing turns on whether, when a witness refers to a “quart” or a “pint”, they mean a 750ml or 375 ml bottle, although the measurements do not correspond precisely.

Prior Consistent Statements [35] Through direct and cross-examination of the various complainants, due to the numerous initial group texts and ongoing grouptexts, combined with police statements, and also the various texts introduced between Mr. Fardy and his friends, and his police statement,counsel at times drew the witnesses’ attention to prior consistent statements. I am aware of the law limiting the use of this type ofevidence. Just because someone says something repeatedly does not make it true.

There may have been times a witnesses’ attentionwas drawn to a prior consistent statement to rehabilitate them on redirect examination in an effort to clarify the accuracy of selectedaspects of evidence put to them on cross. Otherwise, I did not consider the prior consistent statements in making my decision.Additionally, as is noted in more detail below, I asked for further submissions specifically in relation to E.L.’s prior consistentstatements. J.M. Sexual Assault on J.M. on March 26-27, 2020 [36] At the time of the trial in 2022, J.M. was 27 years old. Mr. Fardy was 25 years old.

Leading up to March 2020, they were in aromantic relationship. J.M. lived with her mother, H.F., and her stepfather, D.F., in the Annapolis Valley. Mr. Fardy lived with hismother in the same area. When the COVID pandemic struck, J.M.’s mother, being immune-compromised, did not want people comingand going from her household. As a result, Mr. Fardy moved in with J.M. and her family, as did two of J.M.’s friends, N.T. and L.M. Atthat time, Mr. Fardy was working as a carpenter. In addition to being an influencer, J.M. was an aesthetician. J.M. and Mr. Fardy sharedher bedroom upstairs in the house.

N.T. and L.M. used J.M.’s aesthetician workroom upstairs as their bedroom. The main living area,kitchen, living room, and H.F. and D.F.’s bedroom, were all downstairs. [37] On March 26, 2020, around 6:00 PM, N.T. drove J.M. and Mr. Fardy to the grocery store. During the drive, J.M. said herformer boyfriend, T.O., was coming to pick up some of his furniture. Historically, J.M. said, any mention of T.O. resulted in a negativereaction by Mr. Fardy. Mr. Fardy waited in the back seat while J.M. and N.T. shopped. He started drinking from a quart bottle of J.P.Wiser’s Whisky.

Back at the house, he kept drinking and became increasingly agitated and belligerent. L.M., N.T. and J.M. strategizedabout methods to deescalate and defuse the situation, to no avail. According to J.M., and N.T., and photographic evidence, Mr. Fardydrank two-thirds of the bottle by 10:21 PM. He finished it by midnight and moved on to a pint-bottle of whisky. He continued drinking

until almost 6:00 AM the next morning, March 27, 2020. [ 38 ] The more Mr. Fardy drank, the more disruptive and abusive he became. In between spells of drinking and playing video games in the bedroom he shared with J.M., he repeatedly approached the three women, who were in the aesthetician room, to berate them and accuse them of talking about him. Eventually L.M. began to cry. Mr. Fardy asked her why she was crying. This cycle repeated itself, with Mr. Fardy accusing J.M., N.T. and L.M. of talking about him, and then asking why L.M. was crying. [ 39 ] J.M. said her approach when Mr.

Fardy drank like this was to try to “wait it out” and avoid adding “fuel to the flame.” She brought him supper in the hope he would stop drinking and eat. He ignored the food, continuing to drink and play video games. At one point he stood over J.M., glaring at her, and told her he had “fucked” another woman, who he had named, and would “fuck” her again. J.M. told him to go downstairs and sleep on the couch. When he left, J.M. and L.M. began to cry. [ 40 ] Mr. Fardy eventually went downstairs to the couch and began to play music loudly on his phone.

J.M. asked him to turn it down because H.F. and D.F. were sleeping, but he refused, and she unsuccessfully tried to take his phone. N.T. also failed to get him to turn his music down. He continued to belittle and berate J.M., repeating over and over for the next six to seven hours that she was a “slut”, she was “nothing but pretty”, “nothing but good looks”, “going nowhere in life”, there were “a million” of her, “doesn’t have her drivers licence, wants to be a doctor”, and saying he was going to find a new and better version of her.

When J.M. did not react, he taunted her, saying “Boo-hoo, are you going to cry?” [ 41 ] J.M. and N.T. then overheard Mr. Fardy make a phone call. By this stage, Mr. Fardy was mumbling and often incomprehensible. N.T. grabbed his phone and could see he had called T.O. Mr. Fardy, who was not wearing a shirt, put his boots on and went out to wait in the driveway for T.O. T.O. never arrived. On going back inside, Mr. Fardy stayed downstairs for a while making phone calls.

N.T. and L.M. eventually went to bed in the aesthetician room, around 6:00 AM, according to J.M. [ 42 ] T.O. testified that he had been in a relationship with J.M. just prior to her connecting with Mr. Fardy. He confirmed that he and J.M. were still in contact and he was trying to get some of his furniture back. On March 27, 2020, T.O. said, Mr. Fardy messaged him privately on Facebook Messenger. He was surprised, as they had never communicated online before. He described the exchange: A. He sent me a message through Facebook Messenger.

It was surprising to me, because I tried to stay away from him and what J. had going on. He had reached out to me, calling me a weak-minded child, something along those lines, take care, fella, something like that; didn’t really understand it and it kinda caught me off-guard, so I messaged him back and asked where he was and if he wanted to talk. And there was no response, so I...I called, and when he answered I couldn’t really understand much of what he was saying.

He was quite intoxicating (sic), and I’m just assuming due to the slurring of his words, but what I got out of what he was saying was he had some sort of issue with me. I assume it was because he saw the conversation me and J. were having, and there was some sort of babbling about meeting him at the end of the driveway and talking about being a man and...it was a very hard to understand conversation. Q. Okay, were you speaking or was just Mr. Fardy speaking? A.

We were...we were both speaking, but mostly what I was saying was...was, like, questioning what he was messaging me for and what he was trying to say. [ 43 ] T.O. said Mr. Fardy challenged him to a fight during the phone call, which he estimated lasted about two minutes. While Mr. Fardy was mostly speaking “gibberish,” T.O. was able to make out some of what he said. In describing Mr. Fardy’s level of impairment, T.O. said: A. He was completely intoxicated, mumbling and slurring, I couldn’t understand a word, and then I’d get one word that I’d understand, and I’d say: Why are you calling me?

What’s your deal? ‘Cause I’m...this whole time, I’ve been holding back, not talking to him while he’s with J., and now he’s reaching out to me. So I said: Why are you bringing me up? Type of thing. Q. Okay, and yeah, and I think you described it as he was very weird sounding. What do you mean by that? A. Like he had...he was under water, he had a mouthful of marbles. It was really hard to understand what he was saying. I would presume he was extremely intoxicated. [ 44 ] N.T. confirmed the description of Mr.

Fardy’s behaviour, including his continuous drinking and belligerence, and confirmed seeing that he had contacted T.O. She saw him outside sometime after midnight, waiting for T.O. to arrive. N.T. confirmed Mr. Fardy’s name-calling directed at J.M., his refusal to turn his music down, and his move to a pint bottle when he finished the quart. She said he started drinking around 6:00 PM and was highly intoxicated by 11:00 PM. She had to help him up the stairs at about 3:00 AM and did not see him again after that. She then talked with J.M. and L.M. until 6:00 AM.

N.T. went to sleep at 6:00 AM: she said no one else in the house was drinking alcohol that night. Finally, N.T. said she drove Mr. Fardy to work the next morning, around 8:00 AM, and he acted as if he could not recall the previous evening. The next morning she spoke with J.M., who was upset. [ 45 ] J.M. said she retired to her bedroom to go to sleep around 6:00 AM. She was wearing a baggy t-shirt and shorts. She was not wearing underwear. When she went into her bedroom, Mr. Fardy was there, talking on his phone, wearing only boxer shorts. She had already told him to sleep downstairs on the couch.

He went downstairs but returned a couple of minutes later. J.M. said she was lying in bed, under the covers, and Mr. Fardy got into the bed and began masturbating under the blankets, lying on his back. J.M.’s evidence continued: Q. The what? A. The blanket movements, and when I asked him what he was doing, he said. Q. Okay, so he said...you asked him: What are you doing? He says: Jerking it. You say: Why? He says: Feels, right, because it feels right.

A. Mm-hmm. A. Not very long, under a minute, probably. Q. Okay, and then what happens next? A. Well, after that, he tried to have sex with me and I said no, pretty much, and then he said: You’re getting fucked whether you want to or not. Q. You’re...sorry, repeat that, “You’re getting fucked whether you want to or not”? A. Mm-hmm. Q. Are you saying...am I correct in saying that? A. Yes. Q. What is Mr. Fardy doing when he says that to you? A. Getting on top of me, basically. Q. Okay, and what is he wearing at this point? A. Nothing. Yeah. Q. Okay, so you mentioned that he had previously been wearing just boxers.

Where were the boxers at this point? A. He pulled them down when he was next to me initially. Q. Okay, so Mr. Fardy, when he says, “You’re getting fucked whether you want to or not”, at this point you said he’s on top of you? A. Mm-hmm. Q. And in what...when you say on top of you, what position specifically, can you describe that for us? A. Like, I was laying on my back and he was on top of me. Q. Okay. And what was your response to...so you said you...you say he tried to have sex and you said no. Can you just describe that for us? Like, what was the tone of your voice?

You know, just describe that for us if you can? A. At that point, I was really exhausted. I didn’t really, like, have much, like, fight in me at all to deal with anything else. Like, it was morning at that point. Yeah. Q. Okay, so.... A. I didn’t say really anything. Q. Okay. Did you...was there any emotional reaction to this at this point? A. No, I was...I mean, I was kind of weirdly emotional...or emotionless, the entire night. Q. Right. A. Yeah. Q. Okay, so after Mr. Fardy says to you: You’re getting fucked whether you want to or not. What happens next? A. He proceeded to have sex with me. Q.

Okay, and when you say that, what type of sex are we.... A. Non-consensual. [ 46 ] J.M. said that at this point she was exhausted and did not have much “fight in me,” and, without her consent, Mr. Fardy placed his penis in her vagina. She was on her back, and he was on top of her. She did not say anything. This went on, she estimated, for about five minutes. She said he had one arm across her chest or neck area. She stayed motionless the entire time. Mr.

Fardy ejaculated in her vagina, rolled over and went to sleep. [ 47 ] On cross-examination it was put to J.M. that her description of the sexual assault in her police statement was slightly different than her testimony: MR. BROWN: So you told the officer at that time, you know: I just lay there crying, waiting for him to stop. You’d say that that’s...that’s not really accurate. It wasn’t that you were lying there, crying. A. Yeah, it wasn’t, like, a sobbing kind of cry, it was just kind of like an emotionless kind of like...like, my face didn’t have emotion,

there was just kind of tears, like, coming. I said I wasn’t, like...it was to the point where he probably didn’t even notice. It wasn’t obvious that I was crying. Q. Okay. Let me just...I’m jumping ahead to page 34 in that transcript.

At the bottom of page 35 there, you see where you’re telling the officer that he said this thing, “I was going to get fucked whether I wanted to or not”, and then you go on to say: “And he had his arm, like, across my chest, so I couldn’t...okay...do anything.” You know, at that time you seem to be telling the officer that he was holding you down with his arm, that this prevented you from doing anything; right? A.

He was putting his weight on me in a way that made it...made me feel less, I guess, more vulnerable or less capable to do something, but I mean, he could put his entire body weight on me and I could probably still put up a good fight if I had that in me at the time. … Q. Alright, and I think what you were saying a moment ago is that you feel that you would have had the strength to push him off if you had had the will to do it, I guess would be.... A. Yeah, I mean, even if it was more than just his arm there.

Like, he probably could have used all his strength and I probably still could have done something, if I had that in me. But instead, I just kind of froze. Q. I’m sorry? A. Instead, I just kind of froze. Q. You froze, okay. And you’ve said that there’s no talking that goes on during this, it’s just that initial exchange, “You’re getting fucked whether you like it or not”, you say, “No”, and then it happens , and there’s no more words exchanged? A. Mm-hmm. Q. Okay, and again that’s, just for the record, a “yes”? A. Yes, sorry. Q.

And he comes into the room and he’s doing this masturbating, and it just goes sort of seamlessly from him doing that to rolling on top of you? A. Yes. Q. And is it when he’s on top of you that he says, “You’re getting fucked whether you like it or not”? A. It’s as he’s transitioning. Q. It’s as he’s doing it, okay. And that just...before he does that, there’s no forewarning to you that this is something he wants to do. He doesn’t make any other comment about having sex, he doesn’t give you any other indication. A.

No. [ 48 ] Counsel went on to question J.M. about a text exchange she had later the same day with a friend, Kristen. Q. I guess the same day, that’s right, later the same day. So here we have this message, March 27 at 4:34 p.m., and you tell her: “When Fardy was jerking off next to me, he kept grabbing me and trying to have sex with me.” Do you remember texting her that message? A. Yes. … Q. Okay, but in fact, that’s not what you’ve described here in court, that he kept grabbing you and trying to have sex. What you’ve described is that he just simply rolls over and has sex with you after making that comment? A.

Right. I did go through my texts with Kristen before, before this trial, and there’s also another part where I mentioned him wanting me to give him a blow job, and I...in my memory, I don’t have that kind of there with what happened in my memory. Saying to her right after, when it was more fresh in my mind, he probably did grab at me, but I just thought it would be better to...to say it today exactly what I remember in my head, instead of referencing back to...to this. Q.

So I think, if I understand you correctly, what you would say is that the texts that you’re sending to Kristen would be more reliable than what you’re saying today? A. Yes. I wouldn’t have lied to her about anything. Q. Okay, so the scenario you’ve described her in court today is maybe not reliable; is that fair to say? A. No, it is reliable. The assault did take place, regardless if he asked me to give him a blow job previously or not. It was non- consensual, what he did.

But it’s just that that minor detail that I don’t necessarily have in my memory, in my head about it, and I just thought I should speak on that, rather than recreate a memory in my head from a text message.

Q. Okay. A. But yes, my...my messages to her would be truthful. But it shouldn’t discredit the rest of the actions that took place. [ 49 ] J.M. also agreed, based on the text messages, that Mr. Fardy asked her for oral sex at least three times while he was penetrating her, that she said no, and he did not try to force her to put his penis in her mouth (she had texted that he “would stop and tell me to suck his dick”). Counsel continued: Q.

So if these messages that you sent to Kristen are accurate, then rather than it being the scenario the way you’ve described it, it sounds like what’s happening in the bedroom is that he’s there, he’s...you say he keeps grabbing at you to try and have sex, so he’s making some kind of approach to try and have sex. He does that repeatedly during the sex or leading right up to it, he’s asking you for oral sex and you’re saying no. And so it’s a very different picture, isn’t it, from you’ve described today? A. I don’t think so.

I mean, as you can see, I said he would stop, so the assault had already started at that point, and he would maybe stop his movements, but he didn’t stop having sex with me. He might just have paused and then said to me: Can you do this? And I would say no, but.... Q. You’ve said that the reason why, I think this is what you said, you’re not remembering it the way you described it to Kristen, is because this was two and a half years ago; is that right? A. Yes. Q.

Right, but you’ll agree with me that from the very first time you started describing this incident to the police in July of 2020, you described it in pretty much the way you’re describing it here in court, that.... A. Yes, and that is how I remember it, but this...where this is the exact same day, what I said to Kristen would be very reliable. But, I mean, I didn’t even go to the police right away either, and it was a very traumatic time in my life. I mean, there was a pandemic and the news was on every single day, I had high anxiety over that.

I had my ex, who I still also loved, messaging me and causing me a lot of grief over how he was feeling. I had these up and downs of loving somebody who was unlovable at times when he drank, and turned into a whole different person. There was manipulation and emotional abuse that came from him that kind of whittled down my own self- esteem, my own self-respect.

So, I mean, it was a very...I guess confusing would be a good word, a very confusing time for me back then, trying to distinguish my own feelings and, like, what was going on, and like, why I was...I mean, even in that...why I put myself even in a situation to be with somebody who was like that, and continued to stay. I mean, it was just a lot, a lot of mental stress going on. But what I do know for sure is that everything that I said today to you is completely accurate, with possibly the exception of these minor details. [ 50 ] J.M. said that after Mr.

Fardy ejaculated and rolled over, she got up to use the washroom. She then returned to bed. She said she felt “numb.” [ 51 ] Defence counsel questioned J.M. on her decision to take her phone to the police. She said she had a “lightbulb moment” when she remembered that she had texted her friend Kristen about the alleged sexual assault. Defence counsel asked her whether this prompted her to inform the police that she had found texts with details that differed from what she had told them already: A.

No, because I just kinda saw it as this whole time I’ve been as honest as possible, and as open as possible about what I remember, and I didn’t want to change my words based on a text, because I just feel like that would be me going off of a text, instead of off of my memory, and I feel that to me, being as honest as possible is using my memory to the best of my ability, rather than, I guess, using a text message to create a memory that I had lost. If that makes sense.

I just didn’t feel it was right to read the text message and then be, like, oh, yeah, I guess that happened, and then change my wording to that, when that’s not the way I fully remembered it. Q. You were aware that the account you provided to Kristen was probably more reliable and more accurate than the account you provided to the police in your statements; is that true? A. Probably, yes. Q. And you knew that the police were going to rely on what you told them when they made their decisions about taking the case forward, laying charges, bringing it to court, you were aware of that?

You understood that they would be relying on what you told them? A. Yes. Q. And after you read and reviewed these messages you sent to Kristen, you were aware that what you had told them was probably not accurate; is that fair? A. Well, it is accurate, minus him asking me for a blow job. To my knowledge, the police were going to see both my statements and this, and have all of it to kind of piece together the truth of what happened. I wasn’t trying to hide anything or keep these messages hidden.

I mean, I gave my phone to them willingly. [ 52 ] J.M. agreed that she had also told Kristen that she took a sleeping pill and a THC “gummy” after she came back from the washroom, and these calmed her down. Counsel inquired further into the texts to Kristen: Q. But in the description that you provide to Kristen, it seems to be a more interactive scenario than what you tell the police. There seems to be more back and forth between you and Mr. Fardy where you say he’s grabbing at you several times, he’s asking you for oral sex several times. You’re responding to him, and then you ultimately do have sex.

Is it a situation where you don’t want to have sex with him, he's been obnoxious all night, he’s intoxicated, he’s been putting you down, kind of the last thing you want to do is have sex with

this man. But you allow it to happen, you agree to it so that it’ll just bring this thing to an end, that you don’t want to have a back and forth with him any more.... … MR. BROWN: Just what I’m getting at is, you know, if you can understand where...what I’m getting at is, I think we all run into these situations where there are things we just don’t want to do, but we do them for whatever reason, and is that what could have been happening here?

This is something you didn’t want to do, you felt you shouldn’t be in this situation, but for whatever reason, you did do it, that this was just the best way to handle the situation and that was the end of it? A. No. I mean, the only thing I didn’t do was...was fight back, pretty much, but I did not necessarily allow it to happen. I did not agree, agree to anything. I mean, if I had agreed to it, he wouldn’t have said to me that it was happening whether I wanted it to or not. Q.

You know, in referring back again to the messages to Kristen, this is March 27 at 4:35 and 20 seconds, as they all are, I think, the way you put it to her is, you know, he did anyway have sex with you. “I lay there and let him and he said you’re getting fucked whether you want to or not.” Do you see that message there in front of you? A. Yeah, when I said I let him, I mean I didn’t push him off of me with force, I didn’t yell, I didn’t scream, I didn’t...I just kind of...I guess I was just kind of lethargic. Q.

If we go back up a couple of messages, and just following this sequence, the way you describe it to her, you say: “When Fardy was jerking off next to me, he kept grabbing me and trying to have sex with me.” And you say, “I didn’t want to, and I didn’t want to.” And you say, “And he liked it anyway, and I laid there and let him. And he said you’re getting fucked whether you want to or not.” So isn’t it the case that what you’re describing to her there is that there’s this back and forth, he has sex with you and you let him, and it’s at that point that he says you’re getting fucked whether you want to or not? A.

No, it was as he was going on top of me. I was probably just adding that to what I said to her, to just, like, show her that that was something he had said. [ 53 ] On redirect, J.M. clarified the messages she sent to Kristen the morning after the alleged sexual assault: Q. Just read that aloud, please, thank you. A. “I’m done, I haven’t even cried. I was up until 6:00 a.m. Kristen after everything I took THC and a sleeping pill because I was so heartbroken. He came upstairs and just started jerking off next to me.

Delete this after.” And then Kristen replied, saying: “I will delete it all.” And I said: “Then tried to have sex with me, and I was, like, please stop, just go to sleep, what are you doing. He said: jerking it. I said: why?” Kristen said: “What the fuck?” And then I said: “He was, like: feels right. This is all after he spent hours saying horrible things to me.” And then Kristen replied, saying: “If I tell you something, can you promise it stays between us?” … A. When Fardy was jerking off next to me, he kept grabbing me and trying to have sex with me.

And I didn’t want to.” Kristen replied, saying: “I’m really upset, after all I do for him, he can have such low regard for me.” I said: “And he, like, did it anyway, and I laid there and let him, and he said you’re getting fucked whether you want to or not.” And then Kristen replied, saying: “But Fardy never has the right to treat you that way.” And then I replied, saying: “And then he would stop and tell me to suck his dick.” And then Kristen said: “Um, that’s not okay.” Q. And what do you say next? A.

And then I said: “And I would say no, I can’t.” And then Kristen said: “J., what the fuck?” And then I said: “And then he’d be, like, why, come on. He did it at least three times.” Q. Okay, and then what do you say next? A. “And he would forget where he was and what he said after, like, five minutes. It was terrible. I’m so fucked, I haven’t even shed a tear. L. cried twice, and her and N. both almost cried when he said the Nina thing.” [ 54 ] J.M. said Mr. Fardy was still drunk the next morning, but his demeanour slowly returned to normal.

She showed him a photo of the almost empty quart whisky bottle she had taken with her phone at 10:21 PM. J.M. agreed that she may have told Mr. Fardy there had been a sip left in the bottom and she had poured it out. She said she told N.T. and L.M. what had happened between her and Mr. Fardy before he went to work. She also sent Kristen a text later that morning telling her what happened. Mr. Fardy went to work and he and J.M. exchanged text messages through the day. She told him that they had to discuss their relationship. When Mr.

Fardy returned after work he went straight to bed for a nap, but later texted J.M., asking her to come and tell him what had happened. Around 6:00 PM, she went to her room, where Mr. Fardy had been sleeping, and they spoke for three or four hours. She told him what he had said and how he had behaved the night before. J.M. said that when she described the alleged sexual assault and quoted his “whether you want to or not” statement, he answered by saying “I graped you,” which she took to mean “raped,” although she had not used the word. [ 55 ] J.M. said Mr.

Fardy “seemed to feel awful” about what happened, and that he apologised and promised that if she stayed with him he would go to Alcoholics Anonymous and get therapy after the lockdown ended. She said he did not deny anything or argue. J.M.

and Mr. Fardy agreed that he would remain sober, would seek treatment when the lockdown ended, and that he would no longer be welcome in J.M.’s house if she drank. [ 56 ] In many regards Mr. Fardy agreed with the testimony of the Crown witnesses. He confirmed that on the evening of the alleged sexual assault on J.M. he started drinking a quart of whisky in the back seat of N.T.’s car while she and J.M. were shopping at Sobeys.

However, despite agreeing that over the course of the evening, and into the next morning, he consumed a quart, then another pint, of whisky, he significantly downplayed his level of intoxication. For example, while saying that he was “drunk,” he said he had no difficulty speaking, did not feel dizzy, and was not staggering. On a scale of 1 to 10, with 10 being “unconscious”, he estimated his level of drunkenness as “seven, six.” [ 57 ] Mr.

Fardy testified that he invited T.O. to fight because he did not like “how he had been communicating” with J.M. and said T.O. “had threatened to come down by himself numerous times.” He did not remember being incoherent, as suggested by T.O., but said he was angry and yelling on the phone. [ 58 ] Mr. Fardy was asked how intoxicated he was when he returned to the bedroom, and estimated that at that point he was at eight. He agreed that he was drinking whisky the entire evening, and did not remember exactly how much he drank.

He believed he went back upstairs at 1:00 or 2:00 AM, lay down in bed, and the next thing he remembered was waking up in the morning. He claimed to have no recollection of any interaction with J.M. in the bedroom. [ 59 ] Mr. Fardy denied the Crown’s suggestion that alcohol would have affected his ability to remember what happened. He was questioned on his estimate to have been six or seven on a scale of ten in terms of drunkenness: Q. So what’s six or seven, what does that mean? A. Well, ten being, like, black out, incoherent. Q. Right. Would you feel comfortable getting behind the wheel of a car at this point?

A. No. Q. Not even close; right? A. Not even close, no. Q. And do you know, like, how much of a quart of whisky would you drink before getting to a six or seven, if you were just drinking whisky? A. I would say I’d have to be about halfway through the bottle. Q. Okay, so half a quart, so about a pint, about a pint of whisky and you’re six or seven; right? A pint is about half of a...about half of a quart; is that about right, roughly? A. I’d have to look at the millilitres, but... Q. Right. A. ...it’s around there, yeah. Q. Okay.

So in terms of your, like, characteristics when you’re a six or seven, like, are you able to stand up on your own? A. Yes. Q. Are you slurring your words at that point? A. I would say I’d be slurring my words, yes. Q. So slurring at six or seven? A. Yes. Q. Talking to yourself? I know, maybe you don’t have any memory of that, but do you ever catch yourself talking to yourself when you’re in a state of intoxication? A. No. I remember talking to other people on the phone, and that can be mistaken as talking to myself. Q.

Like, are you doing...are you doing things and then just not remembering them, like, sort of being in a cloud, being in a haze? A. At that point, yes. Q. You indicated yesterday that you would have no difficulty in terms of your speech at this point, is what you said yesterday, when you’re a six or seven. A. At that point, that’s incorrect, I definitely would have problems with speech after a half quart of whisky. [ 60 ] As to his recollection of speaking to T.O., Mr. Fardy said the following:

Q. Now, you indicated that you called T. Is it possible that T. called you? A. I remember one of the messages were...I said...I sent him a text, and then he said: Do you want to chat, where are you at? Something along those lines. Q. Right. A. And I believe I called him after he messaged me that, and then he tried to call me after, but we were actually on the phone talking to each other. Q. Okay, you remember that phone call? A. I do, yes. Q. Do you remember what you said? A. I told him to come down here and fight me. Q. Right, but you remember that phone call, though? A. I do. Q.

You have a distinct memory of that phone call? A. Yes. When I was heading out to the road, I had taken my shirt off and I had left my watch on the back of N.’s car. Q. Okay, and do you...do you know roughly how long that phone call was? A. I don’t think he was much of a fan of coming down to fight me that night, so I don’t think it was a very long call. Q. Okay, and just to be clear, you reached out to him first; right? A. I did, yes. Q. You initially texted him? A. On that occasion, yes. Q. So at this point, you’re pretty fired up, you’re ready for a fight? A. Yes. [ 61 ] Mr.

Fardy testified that he would have been wearing work boots and clothes at this time. Counsel pointed out that he had testified that he took a shower when he got home. He agreed that it did not make sense for him to put his work clothes back on after he showered. He agreed that in fact he had no memory of “exactly what I was wearing” but maintained that he remembered “that time period.” [ 62 ] Counsel continued to pursue the question of Mr. Fardy’s level of intoxication, in his own view: Q.

And then I think you indicated yesterday that at this point when you’re like, dealing with T., you’re like a seven, I think is what you said. A. Yes, I was...yes. Q. So is that...so is it true, then, that your level of intoxication went up, or was it about the same at that point as before? A. I’d say it was about the same. Q. Okay, but you were drinking throughout. Like, you didn’t stop drinking; right? A. I remember having drinks downstairs. Q. Yeah. So when you’re a seven, I mean, we’re now into, like, not remembering details territory; right? You agree with that? A. I would agree with that, yes. Q.

Yeah, so memory becomes an issue when you’re at a seven. A. Yes. Q. What’s black out, what’s that out of ten in your mind? A. I would say that’s a ten. [ 63 ] He denied ever reaching a “ten” that night. He agreed that he had continued drinking straight from the bottle after going outside to confront T.O., and agreed that it could have affected him. He agreed that his “motor skills were not the greatest,” but denied needing

help to get up the stairs. He said he remembered getting the pint bottle of whisky out of the freezer, while talking to N.T., though he said he could not remember if he had finished the quart. He was cross-examined on his recall: Q. I mean, you agree with me, though, it would make sense. Like, why would you get more whisky if you had whisky in the bottle already; right? A. That would make sense, yes. Q. And at this point, despite being an eight out of ten, again what...I guess, maybe you can tell us this, what’s the difference between seven and eight.

Going from seven to eight, what’s the difference in terms of your presentation at that point? And again, maybe you have no idea. A. Seven to eight? In my mind, it might be the difference of you losing motor skills, yes, along those lines. It’s kinda hard to tell on a graph like that. … Q. Yeah? And again, with J. holding the bottle up to your face and it’s empty, or holding it in front of your face, like, why would you have any reason to doubt that you drank the whole bottle? A. I have no reason to doubt. Going off her word...I don’t remember how much I drank out of it, but going off her word, I must have... Q.

Right. A. ...drank the whole bottle, yes. Q. Right, and the reason why you have no memory of how much you drank is because you were so drunk, you have no memory of that night; right? A. I simply lost track of how much of that bottle I was drinking. Q. Right. And, I mean, you agree with me that J. and N. and L. were not drinking that night. You never saw them drinking any alcohol that night? A. I don’t believe they were drinking, no. Q. So as far as you could tell, the three of them were sober. A.

Yes, as far as I could tell. … Q. ...remember, I mean, you’re saying, your evidence is that you remember even the very last thing you did that night, which is going to sleep, you remember that. A. That is when my memory ends of that night, yes. Q. Right. Well, it ends because that’s when you went to sleep. A. Yes, yes, yes. Q. And I mean, your evidence is that you were an eight at this point, an eight out of ten when you went to bed. A. By my...that’s what I rated myself, yes. [ 64 ] Mr. Fardy testified that he went to bed around 2:00 AM and had a good night’s sleep.

N.T., however, said she last saw him upstairs around 3:00 AM and she herself went to bed around 6:00 AM, and J.M. said he went to bed around 6:00 AM. Other evidence supports the 6:00 AM bedtime: Q. No, no, when you started messaging T., you said...I think you said yesterday that you were down there for about an hour? A. Before I messaged T. Q. Yeah. A. Yes, that sounds... Q. Does that make sense? A. ...that sounds fair, yeah. Q. Okay, and then comes the phone call to T., and then comes you going outside to meet T.; right? A. Yes.

Q. How long did you wait outside? A. It was not a very long time that I was outside. Q. Was it a cold night? A. I don’t remember how cold it was, sorry. Q. You had no shirt on. You had no shirt on outside; right? A. Yes, no shirt on outside. Q. And then you come back inside, you go back to the couch; right? A. Yes. Q. Continue playing music? A. Yes. Q. N. comes down, talks to you? A. Yes. Q. And then you get on the phone again with friends? A. Yes. Q. Which friends did you get on the phone with this time? A. It was Patrick. Q. Okay, do you remember talking to Braydon? A. Not again, no. Q. No?

And sorry, and again, when you’re talking to Patrick at this point, are you again talking about sort of saying mean things about J. loudly, like you did before? A. I couldn’t tell you with certainty, no. Q. Okay, and it was after...was it during your call with Patrick that N. came down and told you go to bed, or was it after you were done talking to him? A. I couldn’t tell you that. Q. Okay, so then you go to bed, and your evidence is that you went up at 1:00 or 2:00 a.m.? A. That sounds right, yes. [ 65 ] Counsel directed Mr. Fardy to the time stamps on the texts between him and T.O.: Q.

Yeah, and you say to him: “Your constant chatter like a weak child finally won her over”; right? A. Yeah. Q. And here we have the date stamp, March 27th, 2020, 2:45 a.m.; right? A. Yes. Q. So we’re almost onto three o’clock in the morning at this point; right? A. Much later than I thought, yes. Q. Yeah, right, so 2:45, that’s the first time you reach out to T., right, that night? A. That night, yes. Q. Yeah, and again, so then the next text: “Take care, fella”, and that’s just a minute later; right? A. Yes. Q.

Then again, you agree with me, like, those texts aren’t very nice, like, your kind of...your intention is to provoke an altercation with T.; right? A. It was my intention, yes, sir.

Q. Okay, so 2:46 a.m., you are...you’re texting T. He responds to you at 2:47: “If you want to talk, let’s talk, where you at?” Right? A. Yes. Q. And then comes the phone call; right? A. Yes. Q. And the phone call is two minutes in duration, to T.O, 2:50 a.m., so three minutes later, there’s a phone call for two minutes; you agree with that? A. Yes, I see that here, yes. Q. Does that jibe with your memory now that you see these times? A. The text makes sense to me, I remember the text going like that, it was quite brief texts, and then the call, and it was a quick call. Q.

Yeah, so we’re almost onto 3:00 a.m. at this point. A. And the 3:00 a.m., yes. Q. And then it was after this phone call, like, did you immediately go out without your shirt on to meet T., or was there a period of time before you did that? A. I was on the phone with T. in...without my shirt on, in the middle of the road. Q. Okay. A. So I was on the phone with him while I was outside. Q. Okay, and again, it was only a short phone call, so two minutes? A. It was. Q. You’re outside, and then again, you come back in, go back to the couch, playing music, you had a phone call with Patrick, talking to N.; right?

And then you go to bed? A. Yes. Q. So in reality, you went to bed much later than what you testified to yesterday; right? A. What do you mean by “much later”? Q. Well, you said yesterday 1:00 or 2:00, you went to bed. A. Yes, that’s what I...yeah. Q. And here we have...here we have a record of you speaking to T., being out in the driveway, around 3:00 a.m., roughly. A. Yes, it was later than I thought, yes. Q. Yeah. You indicated you had a good night’s sleep that night? A. I did. Q.

And again, even after this incident with T., there was other stuff you did before you went to bed, as we talked about, downstairs; right? A. Downstairs, yes. Q. So then your next memory is waking up the next morning? A. After I went upstairs with N.... Q. Yeah. A. ...to go to bed? Yes. [ 66 ] Mr. Fardy agreed that he was verbally abusive to J.M., that he created an ongoing and unpleasant disturbance for many hours throughout the night and the early morning hours, and that he asked T.O. to come down and fight him there.

He accepted the possibility that he had used “mean” and insulting language and might have used words like “slut” or “whore.” He agreed that he was yelling and that he continued to drink. He was referred to a text message he sent the next day to his friend, Dylan Good: Q. And so starting at line four, and this is the next afternoon, right, this is March 27th, 2020, 3:32 p.m.? So it’s literally the afternoon after the incident. You indicated: “I got wasted and acted like a dick last

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