R v. C.R.V., 2023 NSSC 169

SUPREME COURT OF Nova Scotia Citation: R v. C.R.V. , 2023 NSSC 169 Date: 20230403 Docket: HFX No. 509574 Registry: Halifax Between: His Majesty the King v. C.R.V. TRIAL DECISION Restriction on Publication: s.486.4 and s.486.5 Criminal Code Judge : The Honourable Justice John A. Keith Heard : January 10 - 13 & 16, 2023, in Halifax, Nova Scotia Oral Decision : April 3, 2023 Written Decision : May 29, 2023 Counsel : Eric Taylor and Alexia Bystrzycki, for the Crown James Giacomantonio, for the Defendant 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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). Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4 , on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

NOTE: In reducing to writing the oral decision rendered in this matter, editing has taken place to include omitted citations and quotes from secondary sources and to make changes to format or to grammar for readability. No changes have been made to the substantive reasons for decision. By the Court (Orally): BACKGROUND AND

SUMMARY OF ALLEGATIONS [ 1 ] TM and CV met in university. Following graduation, they moved to Toronto, Ontario and, in 2002, they married. Between 2003 and 2012, TM and CV lived in Cincinnati, Ohio. During that same period of time, their three children were born. [ 2 ] Between 2012 and 2015, the family lived in Hubbards, Nova Scotia. They then moved to Dorchester, New Brunswick before landing in Dartmouth, Nova Scotia. Each move was prompted by CV changing jobs. In 2016, CV was compelled to go on LTD.

Then, on May 6, 2018, CV returned to the workforce and began a new job in Miramichi, New Brunswick. [ 3 ] When CV took the new job in Miramichi, the marriage was splintering. CV moved to Miramichi by himself. His family (TM and their three children) remained in Dartmouth. [ 4 ] Between May 6, 2018, and November 11, 2018, CV drove between Miramichi and Dartmouth each weekend so that he could spend time with his family. However, the marriage could not be repaired. In fact, things got worse.

As of November 11, 2018, TM and CV stopped living together. [ 5 ] The circumstances which give rise to these proceedings relate to the last four weekends TM and CV spent as a couple, between October 19, 2018, and November 11, 2018. The Crown states that on three of these last four weekends, CV repeatedly abused TM sexually and/or physically. More specifically, the Crown relies upon the oral evidence of TM as proof that: 1. During the weekend of October 19 - 22, 2018, CV physically assaulted TM three times and also sexually assaulted her once; 2.

During the weekend of November 2 - 4, 2018, CV physically assaulted TM once; and 3. During the weekend of November 9 - 11, 2018, CV physically assaulted TM twice and sexually assaulted her twice. [ 6 ] CV denies all allegations against him. He elected to testify at trial and says that he began contemplating divorce in early 2018. CV does not state that he and TM had continuing sexual relations as a married couple and/or that there was an honest but mistaken belief that any such relations were consensual. On the contrary, CV denies any sexual contact with TM at all after May 6, 2018, when he left for Miramichi.

From that point forward, CV says that their relationship was predicated primarily on a mutual concern for the three children - not each other. CV described his relationship with TM during this time as “post-marital, post-sexual and post-emotional”. [ 7 ] CV further states that TM relentlessly sought to tear down his sense of self-respect and worth. More seriously, CM states that TM exaggerates, distorts and even manufactures facts to criminalize CV and, as well, secure an advantage in the extremely acrimonious

divorce proceedings that followed the date upon which they ceased having any meaningful contact (i.e., November 11, 2018). [8] The ultimate question is whether the evidence presented by the Crown proves the allegations of sexual assault and physicalassault beyond a reasonable doubt. Resolving that issue involves a focussed examination into a more pivotal issue: the credibility andreliability of the two key witnesses at trial, CV and TM. The Law [9] The following four legal issues are of particular importance to this case: 1. The presumption of innocence and two vital concepts that flow from that presumption: a.

The Crown must prove the accused is guilty; and b. Guilt must be proven beyond a reasonable doubt; 2. The analytical framework for assessing the credibility of the accused and other witnesses in a criminal trial as mostprominently articulated in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 ("W.(D.)") often referred to as the "W.(D.)framework (or analysis)". The W.(D.) analysis is critical because it seeks to preserve the presumption of innocence and avoids placingan accused in the position of having to prove his innocence; 3. The process of assessing credibility within the W.(D.) framework; and 4.

Related to the assessment of credibility, there are several more specific issues that arise in this case including: a. Concerns around not descending into prohibited forms or reasoning or de-bunked stereotypical logic; b. Concerns around embellishment, animus and motive to fabricate with a particular focus in this case on the fact that theallegations arose in the last throes of a disintegrating marriage and then contentious divorce proceedings. [10] I provide a more detailed description of the applicable law for each issue below. PRESUMPTION OF INNOCENCE [11] CV is presumed innocent.

The apparent simplicity of this statement does not adequately express the very powerful influencewhich the presumption of innocence exerts over almost every aspect of a criminal prosecution in Canada. [12] It is a fundamental principle of the law in Canada that a person accused of a criminal offence is presumed innocent until provenguilty. This presumption is firmly anchored in the bedrock of Canadian criminal law. The Supreme Court of Canada describes it as “…the golden thread of criminal justice …” (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 ("Lifchus"), at paragraph 27.Section 11(

d) of the Canadian Charter of Rights and Freedoms encases this principle with constitutional importance. It states: “Anyperson charged with an offence has the right … to be presumed innocent until proven guilty according to law in a fair and public hearingby an independent and impartial tribunal.” CV is entitled to this presumption at the beginning of the trial, throughout the trial, and untilthe evidence proves his guilt. [13] Two further rules flow from the presumption of innocence: 1. Because it is the Crown that accuses CV of criminal conduct, it is also the Crown that must prove those accusations.

Anequally important corollary principle is that the accused, CV, does not have to prove anything. The Court must take care to ensure thatits analysis of the evidence does not reverse the burden of proof and somehow force the accused to prove his innocence (or disprove hisguilt); 2. Guilt must be proven beyond a reasonable doubt.

At paragraph 36 of Lifchus, the Supreme Court of Canada defined"reasonable doubt" by reference to the following key characteristics: … ∙ 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. [14] Having said that “… the Crown is not required to prove its case to an absolute certainty since such an unrealistically highstandard could seldom be achieved.” (Lifchus, at paragraph 31).

THE W.(D.) ANALYSIS [15] The Supreme Court of Canada's decision in W.(D.) provides an analytical framework which judges apply to ensure competingtestimony in a criminal trial is properly assessed. It stated at paragraph 11:

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 a reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [16] In the more recent decision of R. v.

Gauthier, 2022 ABCA 121, the Alberta Court of Appeal synthesized the W.(D.) analysis asfollows, at paragraph 30: i. The burden of proof is on the Crown to establish the accused's guilt beyond a reasonable doubt and that burden remains on theCrown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown (subject tothe caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponentof the defence); ii.

In that context, if the accused's evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed,or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit (again subject todefences with additional elements such as an objective component); iii. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit; and iv. Even if the jury completely rejects the accused's evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown's version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused's evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused's guilt. [17] With respect to this last point (i.e., rejecting an accused's testimony is not, by itself, a sufficient basis to ground a conviction), inR. v. Lake (2005), 2005 NSCA 162 , 203 CCC (3d) 316 (NSCA) ("Lake"), the NSCA emphasized, at paragraph 22, that: The analysis of both the accused's testimony and the Crown's evidence is done with full knowledge of all the evidence that has beenadduced at the trial.

The first W.(D.) question does not vacuum seal the accused's testimony for analysis. In W.(D.), p. 757, Justice Corycited R. v. Morin, (SCC), [1988] 2 S.C.R. 345 which, at pp. 354-55, 357-58, rejected the piecemeal analysis of individualsegments of evidence for reasonable doubt.

The point of W.(D.)'s first question is not to isolate the accused's testimony for assessment,but to ensure that the trier of fact actually assesses the accused's credibility, instead of marginalizing it as a lockstep effect of believingCrown witnesses. [18] Finally, it should be noted that the W.(D.) analysis is not some mathematical formula or decision-making tree that must berigidly followed with step-by-step precision. In R. v.

S. (J.H.), 2008 SCC 30, the Supreme Court of Canada emphasized that the specificquestions listed in W.(D.) were not to be rigidly repeated in a manner that suggested an unintended “level of sanctity or immutableperfection”.

Rather, and again returning to the central theme that inspired the W.(D.) framework (at paragraph 13): “The main point isthat lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.” ASSESSING CREDIBILITY AND RELIABILITY WITHIN THE W.(D.) FRAMEWORK [19] There are three important points to be made regarding the court's assessment of credibility and reliability. Credibility concernsa witness's sincerity – their “willingness to speak the truth as the witness believes it to be”. Reliability relates to the “actual accuracy ofthe witness's testimony”.

The distinction admits to the possibility that honest witnesses doing their best to provide truthful testimonymight still be inaccurate or wrong. (See R v. C. (H.), 2009 ONCA 56 at paragraphs 41 – 42). [20] The first point is that the credibility assessment is critical in this case, as it is in many allegations involving alleged sexualabuse. Sexual encounters often occur behind closed doors where non-consensual sexual violence remains hidden. As a result: 1.

The evidence before the court is often limited to the testimony of the complainant and the accused - if the accused elects totestify.[1] Here, the complainant testified, and the accused also elected to testify; and 2. The court's ultimate determination necessarily turns on its findings as to the credibility and reliability of the key witnesses. [21] The second point is that credibility is not an “all-or-nothing” or absolute proposition in which the court adjudges a witness(including all aspects of the witness's testimony) either credible and reliable or not.

The court considers the evidence as a whole and thecourt may believe all, none or some of a witness's evidence: R. v. M.(R.E.), 2008 SCC 51 , [2008] 3 S.C.R. 3 (SCC) at paragraph65; R. v. François, (SCC), [1994] 2 S.C.R. 827 (SCC) at paragraph 14; R. v. R.(D.) (1996), (SCC), 107C.C.C. (3d) 289 (SCC) per L'Heureux-Dubé J. (in dissent in the result) at 318; R. v. Hunter, [2000] O.J. No. 4089 (ON CA) at paragraph5; and R. v. Abdallah, (ON CA), [1997] O.J. No. 2055 (ON CA) at paragraphs 4 - 5.

Accordingly, a trier of fact isentitled to accept or reject parts of a witness's evidence as sufficient to either create a reasonable doubt giving rise to an acquittal or,alternatively, displace reasonable doubt potentially giving rise to a conviction. [22] The third point relates to how the court approaches credibility assessments. Credibility assessments are more of an "art than ascience", and that art becomes “particularly daunting where a judge must assess the credibility of two witnesses whose testimony isdiametrically opposed.” (See R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484, at paragraph 128).

Nevertheless, theassessment of credibility is not entirely arbitrary or unprincipled. The process involves thoughtful reasoning - not thoughtless instinct,

knee-jerk reactions or “gut feelings”. It must be rooted in thoughts that are intelligible, can be reasonably articulated, and are groundedin the evidence. [23] The following cases provide guidance by identifying some of the factors which bear upon the question of credibility. 1. In R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at paragraphs 29 - 30, the Supreme Court of Canadaconfirmed that discrete pieces of evidence cannot be exploited in isolation or "cherry-picked" without regard to the evidence in itsentirety. Rather, a witness's credibility may be assessed by reference to both: (

a) how the discrete pieces of a witness's evidence logically interacts internally within that witness's own evidence; and (

b) how a witness's evidence interrelates externally with the evidence as a whole - including the testimony of other witnesses. 2. In R. v. D.D.S., 2006 NSCA 34, Saunders, J.A. provided general commentary bearing upon the assessment of credibility. He wrote (at paragraph 77): … Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible fortruth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together by seasoned judicial stirring will yieldproof of veracity.

Human nature, common sense and life’s experience are indispensable when assessing creditworthiness, but theycannot be the only guide posts. Demeanour too can be a factor taken into account by the trier of fact when testing the evidence butstanding alone it is hardly determinative. Experience tells us that one of the best tools to determine credibility and reliability is thepainstaking, careful and repeated testing of the evidence to see how it stacks up.

How does the witness’s account stand in harmony withthe other evidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminal case? 3. In R. v. Tash, 2013 ONCA 380, the Ontario Court of Appeal described several, more specific factors which are relevant tocredibility assessment including (at paragraphs 40-42): (

a) impeaching evidence such as that which reveals bias, corruption or contradictions in a witness's testimony; (

b) evidence which speaks to a witness's emotions or feelings that either reveals self-interest or might reasonably be viewed asskewing or distorting the witness's testimony (including the reliability of that testimony). These factors could include hostility towardsthe accused or subject matter; and (

c) the witness's character for truthfulness and capacity for deception. These factors could include “prior untruthful conduct” or“the witness' associations”. 4. In Baker v. Aboud, 2017 NSSC 42, at paragraph 13, Forgeron, J. was writing in the family law context, but her decisionoffered even greater specificity as to the questions the Court might consider when assessing credibility: Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault, 2009 NSSC59, 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 different weightto 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? [Some citations omitted] [24] Finally, it must be noted that no single factor or question is necessarily determinative, and any list of factors cannot be viewedas exhaustive. ISSUES REGARDING CREDIBILITY AND RELIABILITY SPECIFIC TO THIS CASE [25] As indicated, in this case, there of two issues of particular significance: 1. Prohibited reasoning; and 2. Issues around animus, embellishment, and motive to fabricate.

Prohibited Reasoning [26] Generalizations about human behaviour and how those generalizations might contaminate the court's view of a person's(usually the complainant'

s) testimony is fraught with difficulty in sexual assault trials. This is because many "common sense" beliefsabout sexual behaviour and the credibility of complainants are based upon preconceptions now recognized as misguided anddiscriminatory. [27] The court must interpret the meaning of evidence, including evidence of human behaviour, in light of their understanding andexperience. This does not mean that the court is free to operate in a way that leaves room for misconceptions and related bias. Thisproblem phenomenon was recognized most directly in R. v.

Seaboyer, (SCC), [1991] 2 SCR 577 where L’Heureux-Dubé J. stated at paragraph 207: Whatever the test, be it one of experience, common sense, or logic, it is a decision particularly vulnerable to the application of privatebeliefs. Regardless of the definition used, the content of any relevancy decision will be filled by the particular judge's experience,common sense and/or logic. For the most part there will be general agreement as to that which is relevant and the determination will notbe problematic.

However, there are certain areas of inquiry where experience, common sense and logic are informed by stereotype andmyth. As I have made clear, this area of the law has been particularly prone to the utilization of stereotype in determinations of relevance… [28] More recently in R. v. Chouhan, 2021 SCC 26, a majority of the Supreme Court of Canada wrote that: "the life experiences thatjurors may legitimately bring to their deliberations cannot interfere with their responsibility to approach the case with 'an open mind, onethat is free from bias, prejudice, or sympathy'" (at paragraph 48, quoting in part from R. v.

Barton, 2019 SCC 33, at paragraph 195). [29] This does not mean that the court cannot draw inferences or scrutinize the complainant's testimony. Nor does it mean that ajudge becomes so wary of drawing upon basic life experiences as to appear out of touch with reality. However, it does mean that judicialreasoning: 1. Must remain rooted in the evidence; 2. Must conscientiously and critically analyze the inferences being drawn to ensure they are not the by-product of unfair orunreasonable stereotypes.

Embellishment, Animus, and Motive to Fabricate [30] The Court recognizes that a tendency to embellish, demonstrable animus, and a motive to fabricate are all factors which maydiminish a witness' credibility.[2] This concern can become more significant where, as here, the allegations arise in the context of otherunrelated and contentious divorce proceedings. [31] Evidence of animus and malice can taint the degree to which the court can rely on the witness's reliability or honesty.

At thesame time, it should be noted that lack of embellishment or animus does not necessarily equate with honesty, or bolster a person'scredibility. It simply means that this factor does not constitute a mark against the witness when assessing credibility. [32] Evidence of a motive to fabricate may also undermine a witness's credibility[3]; however, the court must assess the extent towhich it impacts upon the witness's credibility. Even a proven or obvious motivation to mislead should be approached with care. Thepossible bias or interest of a witness should not be used, in isolation, to determine credibility.

This is because it is a form of prejudgmentto reject testimony because of the status of the witness (such as an egregious spouse in a divorce proceeding) without consideringcarefully what that witness has to say. This was made clear by Justice Charron in R. v. Laboucan, 2010 SCC 12 ("Laboucan"). Shecautioned that criminal fact-finders should not place undue emphasis on a person's status, such as spouse, parent or brother, in evaluatingcredibility. These immutable factors are relevant in credibility evaluation, but should never be treated as decisive (Laboucan, at para.11).

The same holds true of other unavoidable connections to the case. [33] The relevance of these issues in this case are related to the fact that the allegations against CM arose in the context of bitterdivorce proceedings. The historical and often complicated details associated with a failed marriage and including not simply the pre-separation (or historical) reasons for the failure but also the post-separation dynamics that can become toxic as the individualsdeconstruct and disentangle their joint interests and move to protect their individual post-marital interests.

The question in this casebecomes whether (or the extent to which) these factors influence the court's assessment of TM's credibility and reliability. The Evidence [34] Before reviewing the specific allegations, it is helpful to step back and review some of the background from both CV's and

TM's perspectives in the time leading up to the first weekend when these allegations arose. Background from TM's perspective [ 35 ] TM testified that CV insisted upon traditional roles in which he was the "bread winner"; the family's residence was determined by CV's professional opportunities.

TM and the children followed CV to whether his career led them while TM remained at home and was primarily responsible for raising the children, one of whom is disabled. [ 36 ] By the time the family settled in Dartmouth, Nova Scotia however, TM said that these roles proved unrealistic or undesirable for a number of reasons, including: 1. CV had a history of job instability and included a lengthy period of long-term disability; and 2.

TM began to have her own professional aspirations outside the home and, in fact, had landed her own job in Dartmouth. [ 37 ] By October, 2018, TM said CV was becoming concerned over the long-term prospects for his job in Miramichi and began “flooding” (TM's word) her with new job offers all of which required a move. One possible move was to Antigonish, Nova Scotia. She said CV wanted the entire family to follow him to Antigonish. [ 38 ] By this time, again, TM had found her own job in Dartmouth and she liked it. She also felt the children were finally settling in their home.

TM said that she finally stood up to CV to make her own views known, but CV would always keep pushing until she acceded to his demands and that this was no different. TM described CV as demanding - bombarding her with texts demanding that the family move and that she research and reconsider the possibility of living in Antigonish. [ 39 ] TM said that this ongoing tension pervaded when CV arrived home later than expected on Friday, October 19, 2018. Background from CV's Perspective [ 40 ] CV said that he left for Miramichi to minimize time with TM.

He enjoyed the prospect of spending weekends with his children and co-parenting with TM while, at the same time, having no meaningful relationship with TM. CV said that he was constantly subjected to “profound criticism at a high frequency” from TM regarding his self-worth and that it led to an existential crisis which compelled his decision to be free of TM and her unending criticisms. [ 41 ] CV also said that his departure for Miramichi was very significant because it was both a deliberate separation and because he was going against TM's wishes (i.e. he said TM did not want him to leave).

There is some corroboration in the emails exchanged between the parties at this time although, in fairness, TM also suggested that CV should ultimately do what he believes is best - which is different from insisting that he remain in Dartmouth. For example, in an email dated April 16, 2018 TM wrote about the potential Miramichi job saying “If it's a project you are really excited about, continue pursuing it. I'd encourage you to apply … I don't see it as a 'me' minded. Do what you are called to do. I am okay…”. [ 42 ] As indicated, CV said that the relationship was post-sexual, post-emotional and post-marital.

As such, CV said that he slept on the couch of the family home 80% of the time and he slept in bed with TM 20% of the time although, again, he denied any sexual relations when they slept together. [ 43 ] Finally, as to the prospect of moving to Antigonish, CV agreed that he was looking at a job in Antigonish at that time. And he was excited about being closer to his children. [ 44 ] But he insisted that he was enjoying time away from TM. He suggested that they were co-parenting under the same roof but without any relationship.

He agrees that there was some “tumult” (his word) in September - October, 2018 and also conceded that there may have been discussions about the family moving to Antigonish but he denied that it became the context for any alleged sexual or physical assault. Weekend #1: October 19 - 22, 2018 Alleged Assault #1 - October 20, 2018 (Saturday afternoon) [ 45 ] TM said that on that weekend CV was late arriving and that she deflected any discussion about Antigonish by saying that she had to get up early the next day and go to her office. [ 46 ] TM left the following morning for work but came home at lunch.

She said that CV was frustrated and immediately left for coffee while she assumed care of the children. When CV returned home, he had not calmed down. And this, TM said, is the context surrounding the first alleged assault. [ 47 ] She said CV immediately launched into a complaint that she did not respect his work or the sacrifices he was making, driving to and from Miramichi, New Brunswick and Dartmouth, Nova Scotia, every weekend. She replied that it was his choice to work in Miramichi. [ 48 ] TM said that CV became enraged and retaliated by pushing her against the kitchen sink.

He then grabbed her left wrist, spun her around and slammed her hard against the kitchen wall and held her there. She said he then put his clenched fist up to her face, then let her go. [ 49 ] CV flatly denied any such encounter, saying that it simply did not occur. He agreed that there was ongoing controversy regarding his work and his job in Miramichi, although he blames TM for that controversy. He said that TM was repeatedly attacking his value as a parent and a person and that her profound personal criticisms of him severely eroded his dignity and self-respect.

However, CV described himself as attempting to leave peacefully and passively. CV denied instigating or engaging in any violent interactions with

TM (sexual or physical). On the contrary, he described TM as the verbal aggressor, persistently tearing him down. Alleged Assault #2 - October 20, 2018 (later Saturday afternoon) [ 50 ] TM stated that she was in her bedroom, standing in front of two clothes closets. Her closet, if facing the closets, was on the left and CV's was on the right. TM stated that CV entered the room and again confronted her with accusations that she lacked respect for him. He reminded her of the fact that he financed their lives.

She said CV renewed his complaint that she was not doing enough to research and consider a move to Antigonish. Then, in frustration, she said that CV slammed her against the wall and held her there. TM remembered freezing. CV then let her go. [ 51 ] At the time, they were scheduled to take their daughter to a ringette game. They left in separate cars. [ 52 ] CV again agreed that there was controversy regarding the potential move to Antigonish and did not dispute attending a ringette game, but flatly denied that he assaulted or touched TM in advance of that game.

Alleged Sexual Assault #1 - October 20, 2018 (Saturday night) [ 53 ] The events surrounding this allegation are somewhat more complicated. [ 54 ] I begin with TM's evidence. At this point, I refer to a recurring theme in TM's testimony. Namely, that CV would often resort to physical or sexual violence as a “release” of frustration with (or punishment for) perceived disrespect on her part.

She described this as the “arc” or “trajectory” (her words), referring to how CV's alleged violent tendencies typically unfolded. [ 55 ] She would say what she had to say to moderate the conflict or communicate her disagreement in a measured way to avoid escalation. She described these attempts as “mitigation” although she became less conciliatory as their marriage careened towards a complete collapse in November 2018, when she became increasingly determined to separate. [ 56 ] I mention this aspect of TM's evidence because she alleged CV continued to seethe throughout the day on October 20, 2018.

She said that during the ringette game, she and CV sat in different seats in the arena. However, she said that CV continued to glare at her throughout the game and the “trajectory” or “arc” would continue to bend towards a violent end. She recalled making eye contact with CV during the game. On each occasion, he would smile at her and rub the outline of his penis with his hands on his pants, which TM took as an ominous warning of what was to come. [ 57 ] When they arrived home that night, TM said that CV was still not talking until she was in the shower.

At that point, TM said, CV banged his hand on the glass shower door and declared “I’m going to get some shit on my dick tonight” and then he walked out of the bathroom. [ 58 ] That night, TM said she tried to pretend she was asleep when CV came to bed. She said he put his thumb in her underwear and pulled it back. He then put his fingers in her vagina and said “I bet you're wet”. TM recalled “laying on my stomach, not saying anything and pretending to be asleep.” CV kept going, saying “see I can make you wet”. Then, TM said, CV climbed on top of her from behind and spread her legs with his knee.

TM said CV then rubbed his pre-ejaculate onto her buttocks and anus. By that point, TM was crying and testified that she was hurt. However, she did not want to turn over because she did not want CV's mouth near her. She said CV anally raped her and ejaculated on her back. He then wiped his ejaculate using an undershirt, rolled over and went to sleep. [ 59 ] TM said that she continued crying in bed and silently planning how this could eventually end. [ 60 ] When she went to the bathroom following this event, TM said that she was bleeding and that her anus felt like it was being stung with pine needles.

She also said she had lost some control over her bowels. [ 61 ] During cross-examination, TM conceded that the events of that night were not the most vivid of her recollections regarding the last four weekends with CV. This lack of vividness is reflected in her statements to the police. When she first reported this assault to the police, she did not mention that it was an anal rape.

She attributed that omission to her understanding that this first statement was only “high gloss” and would be followed by a more detailed discussions. [ 62 ] The allegation of anal rape then appears in the second statement TM gave to the police. However, at that time, TM agreed in cross-examination that she did not mention injuries or bleeding or the feeling of pine needles stinging her anus.

When pressed as to why these details continued to emerge over time, TM said that she herself asks those questions but elaborated that she needed time to draw out the layers and layers of her relationship with CV. [ 63 ] As with the events which occurred earlier in the day, CV insisted they never occurred. He challenged TM's evolving narrative to the police and denied anally raping or even having sexual relations with TM at that time. As will be seen below, he stated that TM lacks credibility and exhibits a tendency to repeatedly accuse him of criminal conduct based on embellished versions of events.

Alleged Assault #3 - October 21, 2018 (Sunday) [ 64 ] TM said that the bulk of Sunday was dedicated to either trying to appease CV with research on Antigonish or, alternatively, simply avoiding the topic. [ 65 ] However, she said that CV was still not satisfied. That night, she said CV came to bed and re-engaged with her regarding Antigonish. TM recalled saying something that angered CV. [ 66 ] TM testified that CV snapped and put his hand on her neck and tried to climb on top of her.

TM said she thought, “go ahead, this is not going to stop” and that CV continued to tighten his grip with enough force to make her feel light-headed and panicked, and giving her trouble breathing. Then she said "please don't". He suddenly withdrew his hands and got off of her. TM testified that CV

simply uttered the word "whatever" but she believes he was scared by what he had done. The entire event occurred over less than a minute. [ 67 ] In cross-examination, TM was questioned over her description of this event when providing testimony to the police. She told the police that CV put his hands “under” her neck and climbed on top. TM disputed that this description is inconsistent with her statement that CV was choking her.

She denied adding an allegation of choking at trial. [ 68 ] TM also indicated that she had offered the police photos of the bruising on her chest and collar bone from one of the weekends in question, and said there were photos on her phone of a bite mark. She said informed the police but never sent the photos because the police said they would get them if they needed them. They ultimately were not produced as evidence. [ 69 ] With respect to the allegations from this weekend, TM was questioned on her statement to the police around the timing of certain events.

In particular, TM suggested to the police that certain of the events this weekend occurred “two weeks before the end”, meaning the date upon she and CV finally stopped living under the same roof (i.e. November 11, 2018). That was inaccurate. [ 70 ] TM explained that she was trying to articulate that, in this period of time, the process of pulling away from CV resulted in certain mistakes regarding timing and possibly collapsing certain weekends into a larger period of time - again due to the difficulties in piecing together the strands of her time and trauma with CV.

I return to this issue below. [ 71 ] Finally, I note a series of text messages, which were put into evidence on agreement immediately following this weekend, dated October 25, 2018. The text messages all relate to CV's proposal that the family move to Antigonish. They begin with CV asking “When was I raging? I apologize to you for over reacting but I don't think I was raging?”. [ 72 ] TM responded by texting “And done.” to which CV replied “No, you say that I was raging? Did I yell, scream or throw anything?

Going forward, please refrain from mischaracterizing my behaviour.” [ 73 ] TM then sent CV a link for anger management. CV answered that he did not think it was necessary. The messages then ended with the following exchange: CV: Pal, unfortunately I don’t have a lot of choice with respect to where I work because of choice I’ve made. I’m sorry I have bounced from one job to the next. Antigonish is as good as it gets and all things considered I am grateful for the job. That said, I am sorry you and the kids are faced with moving. I just hope we can move forward and investigate living together in Antigonish.

TM: You want us all under the same roof or your want the 4 of us to do whatever you want? Sometimes we have to compromise. I have done more of my share of compromise and support and forgiveness. You can’t be mean and then nice and expect I’ll keep coming back for more. One day I’ll just be done for good. I told you one person’s opinion your heart sank. Imagine my heart when you keep choosing something other than family. Imagine the kids’ hearts. CV: You know the thing is that I want the family to be together be it in Antigonish or wherever.

When you told what this woman said about living in Antigonish my heart sank. I was upset because I desperately want us all under one roof and what I felt was news that might impede living together. I love you and I love the kids. I want us to be together. I did overreact on Sunday and I’m sorry. Weekend #2 - October 26 - 29, 2018 [ 74 ] CV arrived back in Dartmouth from Miramichi. Little need be said because little turns on it for the purpose of this proceeding as there are no allegations of criminal conduct during this weekend.

Weekend #3 - November 2 - 4, 2018 November 2, 2018 (Friday) [ 75 ] TM recalled meeting CV at the ferry terminal with plans to go for lunch at a nearby restaurant. When CV arrived at their meeting spot, TM heard his car making loud, awful sounds. Over lunch, TM suggested they take the car to the brother-in-law of a friend who was a mechanic and CV agreed. Alleged Assault #4 - November 3, 2018 (Saturday) [ 76 ] TM believed that the next day she was discussing the car issue with CV. She mentioned that the miles being put on the car travelling back and forth to Miramichi likely contributed to the problem.

And she reminded CV that it was his choice to be working in Miramichi. Later that day, she said CV pushed her into a wall. [ 77 ] TM could not recall precisely where this occurred. She thought they were standing on the first floor near the bottom of the stairs. She insisted the assault happened but the details were not clear. [ 78 ] TM recalled that she generally stayed away from the house that weekend. TM and CV exchanged texts where she confirmed that she had one foot out the door.

By this point, she knew she no longer had the patience or capacity to manage or moderate or mitigate the situation. [ 79 ] CV thanked TM for her candor and expressed regret for what had happened. She said that CV blamed his behaviour on issues related to his work and mental health, but he maintained that he wanted his family to stay together and hoped she would still consider the move to Antigonish. [ 80 ] CV's recollections are distinctly different. He agreed that there was a car issue.

He could hear the bearings spin in Miramichi but said that he drove the car anyway because he could not get the problem fixed in Miramichi in time for the trip back to Dartmouth. CV indicated that TM berated him for the mistake, attacking him personally and again making him feel worthless.

[ 81 ] Beyond that CV described the allegations of assault as false. Weekend #4 - November 9 - 12, 2018 [ 82 ] There was an odd series of texts dated November 7, 2018 that was put into evidence.

This text exchange was not part of the Crown's initial disclosure but was only produced in the middle of CV's testimony and largely in response to CV's statement that the marriage was post-emotional, post-marital and post-sexual as of May 2018. [ 83 ] CV agreed that the text exchange could be put into evidence. [ 84 ] It began with CV asking the question: “Will you send me some more pics?” [ 85 ] It then continued as follows: TM: No you perv.

My pussy is camera shy CV: Doesn’t hurt to ask TM: Always pushing CV: Your pussy is magnanimous [ 86 ] Unfortunately, I was not provided the full text exchange and so the context is not entirely clear. However, the sexual and intimate overtones are obvious. Alleged Assault #5 - November 10, 2018 (Saturday) [ 87 ] CV purchased the tires to repair their car. TM testified that she mentioned the possibility to CV that he could have purchased cheaper tires at Costco.

TM said that the tenor of conversation changed when she appeared to challenge his decision. [ 88 ] TM testified that CV became more angry when the mechanic told CV that the car problem was more serious than originally suspected and that they needed other parts.

TM said that the mechanic also told CV that he “better thank your wife because your tire could have seized.” TM said that she could see that CV was becoming angry but could not de-escalate the situation as they were in a public setting. [ 89 ] When they arrived back home, TM said CV pushed her into the wall because she was now standing up to him and he considered it disrespectful. TM said that she was trying to slide by CV in their bedroom when he pushed her into the bedroom wall and held her there with two hands. She said it all occurred in less than a minute.

Alleged Sexual Assault #2 - November 10, 2018 (Saturday) [ 90 ] Later that evening was the second alleged sexual assault. TM stated that CV came to bed and put his hands on her neck and then climbed on top of her saying, “I can make you wet even when you don't want it.” TM was on her back with two pillows under head. She said CV was really angry and he forced himself inside her first with his fingers and then his penis. She said that CV then pushed himself inside of her and very aggressively raped her. TM said she lay on the bed thinking she did not want to live this way anymore.

Eventually, she said, CV ejaculated on her stomach, wiped it off and left. [ 91 ] TM said that she was crying throughout the attack. She remembered it clearly being the Saturday before Remembrance Day and she remembered looking into his face. She also recalled leaving the bedroom and sleeping with her daughter. [ 92 ] CV acknowledged that there were additional issues with the car. He recalled being with the mechanic when the tires were removed and saw the wheel bearings fall out. He also recalled that certain other parts had bonded to the steering system.

The car would need to stay with the mechanic for a week. [ 93 ] Beyond that, CV denied that these events ever occurred and insists that they are among the allegations TM made up during subsequent, contentious divorce proceedings. Alleged Assault #6 - November 11, 2018 (Sunday) [ 94 ] The next day was Sunday, November 11, 2018, Remembrance Day. [ 95 ] TM testified that CV attempted to be sweet and apologetic and that he was expressing remorse. However, TM was not prepared to engage. She said that they were near the stairs when CV yanked her arm behind her back and said that she was “not done talking to me [CV]”.

She said she tried to walk away and CV released his grip. Alleged Sexual Assault #3 - November 11, 2018 (Sunday) [ 96 ] Later that evening was the third alleged sexual assault. [ 97 ] TM said she started the night sleeping on the couch but in the middle of the night, she decided to go upstairs and crawled into bed. [ 98 ] She recalled telling CV that she loved her job and that the kids were settled in their home. She said CV came behind her and put his arms around her. CV said he felt he had not choice but to work away from home. TM recalled saying that they could remain in Dartmouth and not move again.

She suggested that CV could make less money.

[ 99 ] TM attempted to end the conversation, saying that they would not settle the issue that night. But CV persisted in asking if she had anything further to say. TM said that she told him she wanted to go to sleep but he said that was not a choice she could make and then pulled her closer. TM said that CV held her by one arm and pulled back her underwear. He then penetrated her vaginally with his penis. [ 100 ] In cross-examination, TM acknowledged that she did not mention the allegation of rape on November 11, 2018, during her first interview with the police when questioned on it.

She was also asked whether the allegation was fabricated given her statement on November 10 that there would be no further attacks. She denied any fabrication. [ 101 ] The next day CV returned to Miramichi. [ 102 ] TM and CV texted back and forth. TM said that she could not continue and CV acknowledged that he was asking himself the same question. [ 103 ] On Wednesday, November 14, 2018, CV stated that his life was moving in a different direction and that he would like to separate and TM agreed. TM said that she already had a plan in place to escape. [ 104 ] TM and CV would not be in the same house again.

CV arrived back in Dartmouth on November 17, 2018, but only for the purpose of securing his property and dividing the matrimonial property that could be agreed upon. [ 105 ] CV agreed that he finally decided to not continue with his co-parenting plan where he and TM would live in separate bedrooms but under the same roof. It was dysfunctional and unworkable. However, he flatly denied that this realization came in the aftermath of a physical assault or sexual assault. He agreed that his relationship with TM was increasingly difficult and unworkable but flatly denies any violence.

Post-Event Conduct [ 106 ] A tremendous amount of time was spent discussing the acrimonious divorce which erupted after TM and CV ceased living together in November 2018. CV stated that the post-allegation evidence reveals two basic facts: 1. TM is prone to fabricate problems and exhibited a hypersensitivity to potential threats that did not actually exist. He states that this heightened but unjustified capacity to perceive danger undermines her credibility and reliability as a witness; and 2.

TM manufactured these claims as part of an improper effort to gain leverage against CV in this ongoing parenting battle and hopefully ensure that CV would be deported from Canada if convicted. [ 107 ] A few examples from the evidence relied upon by CV will suffice in terms of demonstrating his concerns. [ 108 ] CV stated that TM was irrational and he points to her conduct during the divorce proceedings particularly in respect of TM's alleged refusal to speak with CV except through a lawyer - even when the option of a “Talking Parents” app was suggested in which all communications would occur digitally - not in person or directly over the phone, for example. [ 109 ] CV also suggested that TM was consciously and continuously expanding her familiarity with police protocols and the criminal law in order to push meritless harassment charges against him.

These include, for example: 1. An alleged hyper concern with the specific requirements of a separation distance of 50 metres contained in a restraining order; 2. Concerns expressed over CV's inquiry to his son as to “is mommy still working in same place” and whether that constitutes harassment; 3. An incident that occurred on July 31, 2020, where TM was on the phone with their son JV and she believed she overheard CV say "Tell your mother to procure a note that gives [him] permission to have JV over the weekend." She said JV asked her for that note.

CV says he was then criticized by TM and accused of breaching the restraining order because he was indirectly talking to TM; 4. On August 9, 2020, there was an incident involving their son JV, who was staying with CV. JV has cognitive difficulties which can, at times, manifest themselves through physical violence. In any event, TM said that JV entered her house and took his bike without permission. TM called the police and considered laying break and enter charges because JV was stealing things, but also given recent history where tensions with JV had escalated into violence.

CV stated that he discovered JV hid the bike in his [JV's] bedroom and immediately gave it back. Yet, CV stated that he was rewarded for his good faith efforts by further accusations from TM; 5. On August 11, 2020, there were appointments with JV and some care providers. CV said he knew about the peace bond which prevented him from interacting with TM, but believed it important that he take JV to a scheduled medical appointment. While he was in the waiting room, TM exited the elevator and saw him. Social Workers were in place between them.

Yet, again, CV says, TM unfairly confronted him with breaching the terms of the peace bond simply because he was waiting for his son at a medical appointment; 6. CV was charged in New Brunswick on March 13, 2020. Those charges were ultimately withdrawn or replaced with the current charges. CV said that TM was upset the Crown did not pursue those charges and that her disappointment further reflects TM's intention to do whatever she could to have CV exposed to criminal liability; 7. On November 22, 2021, there was an incident involving a transition of their son BV.

CV said that he was dropping BV off at school that day but that he was sick. As a result, BV could not go to school and needed to be picked up by TM. CV decided to remain with his sick son rather than simply leaving him at the school. CV said he had the foresight to call the police because he anticipated TM would create problems as soon as she saw him. CV also said that he parked his car in a certain way to avoid any contact with TM.

Nevertheless, he says TM overreacted simply at the sight of CV and chastised him for doing what was reasonable by dropping off BV when he was sick. Application of the Law to the Evidence and Facts [ 110 ] I wish to begin with several general conclusions regarding credibility. [ 111 ] I begin with CV and repeat that the accused, CV, elected to testify and maintains that the alleged criminal conduct never actually occurred. I acknowledge the concern that, in these types of circumstances, an accused will necessarily be compelled to deny the allegations.

However, this does not mean that the only thing standing between the accused and conviction is a blanket denial. Nor does it mean that an accused must prove the non-existence of an event (or “disprove a negative”).

The presumption of innocence, the Crown's burden of proof, and the W.D. framework all operate to shield the accused from having to prove anything. [ 112 ] That being said, I did not find CV to be a credible witness. [ 113 ] There were aspects of CV's testimony that aligned with that of TM, including, for example, their respective versions of the car troubles that arose during the weekend of November 2 - 4, 2018. CV also agreed that the potential move to Antigonish was a point of tension, although he diminishes its significance.

That said, however, on the core evidence regarding any physical or sexual contact with TM, I do not accept CV's evidence. [ 114 ] Among other things, his testimony was predicated upon the proposition that the marriage was post-sexual, post-marital and post- emotional. That proposition was, in my view, clearly and repeatedly contradicted by the hard evidence. In cross-examination, CV resiled somewhat from the notion that he was physically and emotionally disconnected from TM in the months leading up to their separation.

He admitted that he would not have known how he felt about the future of his relationship with TM in May 2018 when accepting the job in Miramichi. This modest admission reveals internal inconsistency in his evidence. [ 115 ] More importantly, in my view, CV was clearly determined to deflect and understate the reality. Again, the evidence indicates that his commitment to the relationship was much stronger and revealed a level of physical and emotional intimacy that CV was not prepared to accept in his testimony. For example: 1.

Up until their last weekend together (ending November 11, 2018), CV continued to pursue the idea of the entire family moving to join him in Antigonish. His written communications at the time confirm that he was neither emotionally detached from TM nor interested in separate co-parenting arrangements. His October 23, 2018, text messages to TM stated, among other things: “I was upset because I desperately want us all under one roof, and what I heard was news that might impede us living together. I love you and I love the kids. I want us to be together.” 2. CV's response to the November 7, 2018, texts is relevant.

I appreciate they were not part of the original disclosure and he was dealing with this new issue in the middle of his testimony. However, the disclosure was not in the Crown's possession and was only provided by TM in the middle of trial. It was agreed the evidence could be introduced. CV was asked whether or not he ever asked his ex-wife for private photos based on the apparent context of the messages. He acknowledged that he did not recall asking for any photos, but said his memory was foggy. In this text exchange they were communicating in an intimate manner.

CV described it as a banal conversation that TM turned sexual. In fairness, TM was not alone. CV played a role in sexualizing the tone of the texts. 3. Finally, in terms of how CV said he was responding to TM from time to time, he said that the acrimony was effectively one- way and that it was eroding his confidence, causing him to have an existential crisis.

Yet, the erosion of confidence is not apparent either in CV's testimony or in the other evidence, including the text exchanges which I just discussed. [ 116 ] It may be that the post-separation hostilities between CV and TM altered CV’s view of their pre-separation relationship. Or it may be that CV was simply not prepared to acknowledge any form of contact with TM in light of the allegations against him.

Whatever the motivation, his refusal to candidly acknowledge the facts (even if they were against his interest) and his transparently self-serving evidence ultimately undermined the credibility and reliability of his testimony. [ 117 ] In sum, I did not find CV credible or reliable in his general, blanket denial of physical and/or sexual contact with TM during the time period in question. This does not compel a conviction.

I repeat that the Crown still bears the burden of proof and must establish that the remaining evidence demonstrates beyond a reasonable doubt that CV is guilty of the alleged offences. [ 118 ] The question becomes whether contact occurred, the nature and extent of any such contact and, more specifically, whether it constituted either assault or sexual assault, as alleged. The only remaining evidence on this comes mainly from TM's oral testimony. To that extent, my assessment of her credibility and reliability becomes critical.

I turn to that issue now. [ 119 ] I agree with CV that TM would react to CV in ways that appear disproportionate in the circumstances. For example, TM's reactions to CV sitting in a hospital waiting room for his son JV's appointment or waiting in the car with his sick son, BV, may appear excessive. I also note that TM was dealing with her son, JV, whose cognitive challenges have, at times, manifested with JV physically lashing out at TM. [ 120 ] TM attributes her post-separation responses to fear built up over years of abuse at the hands of CV.

I am not prepared to infer either that TM's sensitivity to CV's post-separation actions necessarily means that she manufactured the allegations against him. However, I did take into account TM's heightened capacity to perceive CV as a threat beyond what the external circumstances objectively suggest when assessing her credibility and reliability.

In the same way, I have taken into account the animus which enveloped CV and TM's high-conflict divorce - and CV's suggestion that this animus and ongoing disputes around parenting time with the children constitutes a motive to fabricate evidence in a manner which would paint him in the worst possible (criminal) light. [ 121 ] These post-separation issues caused me to approach TM’s testimony carefully. They did not lead me to entirely reject TM’s testimony as lacking credibility or being entirely unreliable.

[ 122 ] Generally speaking, TM accurately and honestly communicated many important aspects including the level of frustration and dysfunction that dominated in the last dying weeks of their marriage, as they both struggled with issues that were ultimately irreconcilable and the recognition that this marriage could not be saved, as opposed to a marriage that had already been off the table. In my view, TM also stood up well in cross-examination. Aspects of here evidence was also corroborated by external factors including the texts and emails put into evidence.

In addition, TM was candid in acknowledging certain frailties including, for example, the assault that allegedly occurred during the weekend of November 2, 2018. She became emotional during trial and worried that if she admitted even one frailty it would undermine her evidence entirely. [ 123 ] Nevertheless, the post-separation concerns raised by CV were relevant and, as will be seen, I was left with a reasonable doubt regarding certain allegations.

However, there were other aspects of TM’s testimony that were particularly compelling and, in my view, eliminated a reasonable doubt with respect to the associated charges. [ 124 ] I turn now to the specific allegations.

Alleged Assault #1 - October 20, 2018 (Saturday afternoon) [ 125 ] I accept TM's evidence on these allegations and am satisfied beyond a reasonable doubt: 1. that CV applied force to TM; 2. that CV intentionally applied the force; 3. that TM did not consent to the force that CV applied; and 4. that CV knew that TM did not consent to the force that CV applied. [ 126 ] The evidence is described in paragraphs 45 - 49 above. Briefly, TM’s testimony was that CV became enraged and retaliated by pushing TM against the kitchen sink.

He then grabbed her left wrist, spun her around and slammed her hard against the kitchen wall. CV denied this. [ 127 ] I am satisfied that there was significant tension in the home created by CV's proposal to again move the family and relocate to Antigonish. I am also satisfied that CV relentlessly pursued this topic and that CV would become frustrated and angry at TM's opposition. I also accept TM's evidence that CV would react to her opposition in a way that was physical. Again, CV acknowledged that the move to Antigonish became a point of contention.

TM's evidence on this issue is consistent with the texts that were put in evidence and her memory of the event (including its context) was clear and detailed. [ 128 ] I am satisfied that the Crown has proven this particular assault beyond a reasonable doubt. Alleged Assault #2 - October 20, 2018 (later Saturday afternoon) [ 129 ] With respect to the alleged assault later in the afternoon in the bedroom, standing in front of two closet doors, I accept TM's testimony and am also satisfied that this assault has been proven beyond a reasonable doubt.

The evidence is summarized at paragraphs 50 -52 above. [ 130 ] I repeat my assessment of TM's credibility and reliability with respect to the first assault. The strength and quality of TM's evidence regarding this assault was similar in terms of context and detail. I also note that this assault occurred only a few hours later. [ 131 ] TM stood up to cross-examination, and I am mindful of the level of dysfunction and frustration that I accept existed in terms of their relationship at this time and in terms of CV's responses to that environment.

I accept that CV was insistent that the family move to Antigonish and became frustrated by TM's reluctance or refusal to do so. Alleged Sexual Assault #1 - October 20, 2018 (Saturday) [ 132 ] With respect to this issue, I encountered greater difficulties and concerns.

I do not accept this part of TM's testimony in the sense that it left me with a reasonable doubt regarding the charges against CV. [ 133 ] TM's evidence is summarized at paragraphs 53 - 63 above. [ 134 ] I am troubled by the manner in which these allegations evolved over time, including the lack of initial disclosure to the police and the way in which further details emerged even at trial including, for example, the sensations she felt after the alleged assault. [ 135 ] To be clear, there is no stereotypical manner to report a sexual crime, and also that there is no single, stereotypical response to sexual violence. [ 136 ] Nevertheless, TM's evolving evidence with respect to this alleged, very serious sexual assault left me with concerns.

I note TM's statement that this allegation was not the most vivid of her recollections – even though it was clearly the most significant and vivid in her re-telling at trial. TM's testimony on this point was internally inconsistent. [ 137 ] This part of TM's testimony, in my view, gave rise to reasonable doubt. [ 138 ] I dismiss this charge against CV. Alleged Assault #3 - October 21, 2018 (Sunday) [ 139 ] The next allegation of physical assault is the allegation on October 20, 2018, that CV climbed on top of TM and placed his hands

under her neck. TM's testimony is summarized at paragraphs 64 - 73 above. [ 140 ] On this allegation, I accept TM's testimony and am satisfied that the essential elements of the offence were proven beyond a reasonable doubt, in that CV placed his hand under TM's neck and climbed on top of her. Her recollection was clear and detailed. [ 141 ] TM's testimony regarding CV's rage was consistent with external objective evidence as revealed in the October 23, 2018, text exchange which was entered in evidence and included TM referencing anger management (see paragraph 73 above). CV apologized merely for “overreacting”.

In my view, based on TM's testimony his overreaction included physical contact in the form of an assault on that day. [ 142 ] I am not prepared to accept the aspect of the evidence that suggested that CV gripped his hands around TM's neck and choked her in a way which would restrict her breathing. In any event, I confirm that the allegation in the Indictment only refers to the lesser charge of assault contained in

section 266 of the Criminal Code . Alleged Assault #4 - November 3, 2018 (Saturday) [ 143 ] I do not accept this aspect of TM's evidence. This allegation was not proven beyond a reasonable doubt. [ 144 ] TM candidly admitted that her recollections regarding this event were incomplete at best. She did not recall the details of this alleged assault at all which should be compared to the relative clarity and specificity of other allegations. It is also somewhat inconsistent with the texting between the parties.

For example, following the weekend of October 19 – 22, 2018, there was a text exchange referring to CV's anger (see paragraph 73 above). By contrast, the texts put into evidence after this weekend lacked any such tension and, instead, were much more intimate in nature (see paragraphs 84 - 85 above). [ 145 ] In the circumstances, it would be unwise to record a conviction against CV and I decline to do so, as I am left with a reasonable doubt.

Alleged Assault #5 - November 10, 2018 (Saturday) [ 146 ] With respect to the final weekend together from November 9 - 12, 2018, these are the allegations that arose after the November 7, 2018 text message exchange regarding pictures, where TM suggested that her “pussy [was] camera shy” (see paragraph 85 above). [ 147 ] TM's testimony is summarized at paragraph 89 above. Briefly, TM says CV pushed her against a wall and held her there with two hands. [ 148 ] TM's testimony regarding both the assault and the contexts within which the assault occurred was clear, compelling, and detailed.

TM recalled the car trouble that was diagnosed that weekend as being serious. I note that CV also acknowledged a problem with the ball bearings on the car, but, again, diminished its significance on his interactions with TM. [ 149 ] I accept TM's evidence that the car issue was an added stressor, compounding the conflict which had arisen over CV's proposed move to Antigonish. I also accept TM's evidence that CV demonstrated a capacity for responding physically when frustrated by TM.

I accept TM's evidence that this impulse was triggered by the events of the day, including TM confronting CV as to his responsibility for their car troubles and CV's reaction to the mechanic lecturing him. As indicated, I do not accept the evidence of CV as being passive during this period of time. [ 150 ] TM's testimony satisfied me beyond a reasonable doubt that this assault occurred and that CV lashed out physically in response to all that was occurring in the context of a disintegrating marriage.

Alleged Sexual Assault #2 - November 10, 2018 (Saturday) [ 151 ] TM's testimony is summarized at paragraphs 90 - 91 above. [ 152 ] Unlike TM's allegation regarding the alleged sexual assault on October 20, 2018, TM's testimony regarding this allegation was consistent and compelling. There were important details that TM recalled that clearly anchored her in time and place. TM's testimony was connected to clear, detailed memories in her mind including the proximity to Remembrance Day, CV's statements and actions, including looking at his face as the assault was occurring.

She also offered details regarding her own inner thoughts as she contemplated the end of the relationship and then leaving the bedroom after the assault to sleep with her daughter. [ 153 ] I took into account CV’s concerns regarding post-separation animus, a messy divorce and hypersensitivities to TM’s actions. With respect to this allegation, I accept TM's testimony as credible and reliable; and am satisfied that it displaced any reasonable doubt regarding the alleged sexual assault.

Alleged Assault # 6 - November 11, 2018 (Sunday) [ 154 ] TM's evidence is summarized at paragraphs 94 - 95 above. [ 155 ] TM's description of the context leading up to this alleged assault included clear details. She stated, and I accept, that CV attempted to be sweet and apologetic and expressed remorse. TM's testimony on this point, in my view, flows logically from the events of the previous night. However, TM was not prepared to engage or accept CV's apologies.

He became frustrated, upset and lashed out physically - a reaction which is also consistent with my findings above in respect of other incidents and, in my view, the evidence as a whole. [ 156 ] As indicated, TM stated that CV yanked her arm behind her back and said that she was “not done talking to me [CV]”. The physical interaction began and ended over a brief moment in time but I accept that it was proven beyond a reasonable doubt. There was contact, an application of force, CV intentionally applied the force, TM did not consent to the force applied and CV knew that TM did

not consent. [ 157 ] I find CV guilty of the assault on this date, as alleged. Alleged Sexual Assault #3 - November 11, 2018 (Sunday) [ 158 ] TM's evidence is summarized at paragraphs 96 - 100 above. [ 159 ] Briefly, TM says this occurred when she decided to start the night on the couch but then decided to go back upstairs in the middle of the night and crawled into bed, where, she said, CV raped her. [ 160 ] In cross-examination, TM acknowledged that she did not mention this allegation of rape on November 11, 2018, during her first interview with the police.

TM explained that she understood the initial police interview was merely intended to be a “high gloss” and that she anticipated elaborating upon her relationship with CV over time. She elaborated that it would take many, many more hours than were available at the time to properly unpack all of the dysfunctional aspects of her relationship with CV. [ 161 ] As with the allegations associated with the alleged sexual assault on October 20, 2018, I am concerned about the manner in which TM's recall of this incident evolved over time.

TM's evidence regarding this allegation was neither sufficiently clear, consistent, or detailed to displace the reasonable doubt which remained after hearing her testimony. Given these doubts, it would not be safe to convict CV of the alleged sexual assault. I find CV not guilty of this offence.

CONCLUSION Assault [ 162 ] Assault #1 - I am satisfied that the Crown has proven this assault beyond a reasonable doubt, and find CV guilty on this count. [ 163 ] Assault #2 – I am satisfied that the Crown has proven this assault beyond a reasonable doubt, and find CV guilty on this count. [ 164 ] Assault #3 – While I do not accept CV gripped his hands around TM's neck and choked her in a way which would restrict her breathing, I conclude that the assault is proven beyond a reasonable doubt, and find CV guilty on this count.

And I confirm that the allegation in the Indictment only refers to the lesser charge of assault contained in

section 266 of the Criminal Code . [ 165 ] Assault #4 - This allegation was not proven beyond a reasonable doubt. In the circumstances, it would be unwise to record a conviction against CV and I find him not guilty on this count. [ 166 ] Assault #5 - TM's testimony satisfied me beyond a reasonable doubt that this assault occurred. I find CV guilty on this count. [ 167 ] Assault # 6 - I find CV guilty of the assault on this date, as alleged.

Sexual Assault [ 168 ] Sexual Assault #1 - I find CV not guilty on this count. [ 169 ] Sexual Assault #2 - I accept TM's testimony on this event and am satisfied that it displaced any reasonable doubt regarding the alleged sexual assault. I find CV guilty on this count. [ 170 ] Sexual Assault #3 - I find CV not guilty on this count. Keith, J. [2] While exaggeration or embellishment may be negative factors used to demonstrate that a witness lacks credibility, the lack of exaggeration or embellishment cannot be used as a positive attribute used to demonstrate that a witness is credible. R v.

Kiss , 2018 ONCA 184 , at paragraphs 52 & 53 . [3] The opposite is not necessarily true in the sense that the absence of evidence of a motive to fabricate does not translate into the absence of an actual motive to fabricate. As Rowles J.A. stated in R. v. B. (R.W.), [1993] B.C.J. No. 758 , 24 B.C.A.C. 1 (C.A.) , at para. 28 : “[i]t does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth”. The Crown may present evidence to support a conclusion that there was no motive to fabricate but the Court will not reach that determination easily.

The bar is high. ( R. v. Ignacio , 2021 ONCA 69 at paras 31-32 ). Thus, in R. v. Swain , 2021 BCCA 207 , the British Columbia Court of Appeal identified three primary risks a trier of fact must avoid: [ 1 ] The trier of fact must avoid equating absence of evidence of motive with a proven motive to fabricate; [ 2 ] The trier of fact must not assume that absence of motive to fabricate (or absence of evidence of motive) means that the witness is telling the truth; [ 3 ] The trier of fact must not reverse the burden of proof by requiring the accused to explain why a witness would fabricate evidence. (at paras 30-33).