R. v. P.C., 2023 ONCJ 434

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 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) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

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

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

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. P.C., 2023 ONCJ 434 DATE: 2023 10 05 COURT FILE No.: Pembroke 21-0843 BETWEEN: HIS MAJESTY THE KING — AND — PC Before Justice J.R. RICHARDSON Heard on February 16, 22; March 1; April 24; May 30; July 21, 2023 Reasons for Judgment released on October 5, 2023

Caitlin Downing.................................................................................. counsel for the Crown Jason Gilbert................................................................................... counsel for the accused RICHARDSON J.: Introduction [ 1 ] PC is charged with sexually assaulting HL on August 31, 2020 and again on March 22, 2021. [ 2 ] The Crown has elected to proceed by Indictment. The accused elected trial in this Court. [ 3 ] At the outset of the trial, jurisdiction of the court and identity were admitted. [ 4 ] Prior to the trial, there was a

section 276 Application, which was allowed in part on February 22, 2023. Concurrently with these reasons, my reasons on the

section 276 Application are released for publication. [ 5 ] The trial commenced with a voir dire with respect to the admissibility of statements that PC was alleged to have made to Constable Holland when he was arrested. The parties agreed that the voir dire would proceed on a blended basis with Constable Holland’s evidence on the trial itself. [ 6 ] On March 1, 2023 , I ruled that the statement was admissible for reasons that I would deliver when I delivered judgment.

Paragraphs 68 to 89 herein are those reasons. [ 7 ] During the course of the trial, the Crown led evidence of text messaging between the complainant and a friend on two bases: first, the evidence was led in order to rebut the allegations of recent fabrication. I admitted the text messaging for this limited purpose. [ 8 ] Secondly, the evidence was led as part of the “narrative”. I reserved on this issue. [ 9 ] Since this issue is framed as part of the analysis of credibility of HL, my findings in relation to this issue are found at paragraphs 261 to 271.

Constable Brett Holland – Voir Dire in-Chief [ 10 ] Constable Holland has been a member of the Ontario Provincial Police for two and a half years. [ 11 ] On the 18 th of June, 2021 at 4:50 pm, he was called to investigate a “mental health and domestic” occurrence at […] J Street in Pembroke. He arrived at 4:58 pm. [ 12 ] On arrival he spoke with HL who related that she was having a verbal argument with her boyfriend, PC.

She alleged that during the course of that argument, PC became upset, grabbed a knife and started making comments that he was going to kill himself. [ 13 ] PC was located in the garage of the residence, apprehended under the Mental Health Act and transported to the Pembroke Regional Hospital by other officers. [ 14 ] Constable Holland returned to the residence to speak with HL about the incident. [ 15 ] As is standard practice, he completed a Domestic Violence Questionnaire with her.

When asked about sexual offences as part of the Domestic Violence Questionnaire, HL related that there had been incidents of sexual violence in the past. [ 16 ] At this point, Constable Holland decided to terminate the interview with HL in order to have her go to the police station to give an audio-video recorded interview. HL could not attend right away because of child care issues. She did, however, attend the next day. [ 17 ] On June 19, 2021, Constable Holland interviewed HL by audio-video between 11:11 am and 11:57 am.

At the conclusion of the interview, he was satisfied that he had grounds to arrest PC for two counts of sexual assault. Constable Holland spoke to his supervisor and decided that he was going to release PC on an undertaking once he was arrested. Constable Holland then completed the undertaking in advance. [ 18 ] At 12:58 pm, Constable Holland drove to the place where PC was employed. He located PC who was working.

PC agreed to meet the officer outside when his shift was completed. [ 19 ] The officer testified that on the day in question, he was dressed the same as he appeared before me in court, that is he was dressed in a full OPP uniform replete with all of his use of force equipment. There would be no doubt to anyone that Constable Holland was a police officer.

He was driving a “subdued” police vehicle that day, which I took to mean a vehicle that had police markings, but it was not obviously a police vehicle unless one looked closely at it. [ 20 ] Inside PC’s workplace, Constable Holland told PC that he needed to speak with him. The interaction was not longer than 30 seconds.

[ 21 ] Constable Holland stated that there were no threats or inducements. PC did not have any difficulty understanding him. PC did not appear intoxicated. Constable Holland could not remember if he asked PC any questions. Constable Holland did not recall how PC responded when he asked to speak with him. He did not note it either.

All he could recall is that PC told him that his shift was ending in about 15 minutes and he would meet the officer outside when it was over. [ 22 ] Constable Holland was working alone. [ 23 ] After this discussion, Constable Holland went outside and sat and waited for PC in his police car. [ 24 ] At 1:18 pm, PC came outside. Constable Holland advised PC that he had grounds to arrest PC for two counts of sexual assault.

To this PC replied, “You’ve got to be fucking kidding.” This conversation occurred directly beside the hood of Constable Holland’s police car. [ 25 ] The two men were approximately two and a half feet apart when they had this conversation. Constable Holland’s use of force equipment remained holstered. [ 26 ] At 1:20 pm, Constable Holland arrested PC. He searched PC incident to arrest and did not discover anything of note. This was the only force that Constable Holland applied to PC. He did not handcuff PC.

He did assist PC in getting in the rear of his police car in order to ensure that PC did not hit his head. [ 27 ] Once PC was in the rear of the police car, at 1:22 pm, Constable Holland read PC his rights to counsel. The officer testified that this was read verbatim from a police-issued card that Constable Holland carries with him. PC did not seem confused. He stated, “I know your stuff”. He did not express a desire to call a lawyer. He indicated that he understood. [ 28 ] Constable Holland then said that he read the accused a caution.

When asked if he understood, PC said, “Sure.” [ 29 ] PC asked Constable Holland to explain the charges. Constable Holland stated that he gave PC the dates of the alleged offences, that is August 31, 2020 and March 22, 2021. Constable Holland could not recall if he told PC that the complainant was HL. Constable Holland stated that he did not believe that PC asked for any specifics as to what the alleged offences were. [ 30 ] Constable Holland testified that at this point, PC stated, " She didn't say no multiple times.

She said it once and then we just went with it. ” Constable Holland testified that he wrote this verbatim in his notebook as soon as PC stated it. He did not believe that he paraphrased what PC said. “It was as accurate as I can remember it”, Constable Holland told me. He noted that the exchange appears in his notebook in quotation marks which is an indication to him that these are the words that PC stated and not his

interpretation of what PC was saying. [ 31 ] Constable Holland stated that PC also said, "She's my girlfriend and we have sex. How can I sexually assault my girlfriend?" With respect to this remark, Constable Holland’s evidence was that PC seemed confused and he did not think that he could sexually assault someone who was his girlfriend. Constable Holland indicated that he had to explain this to PC. [ 32 ] Constable Holland could not remember whether there were any other utterances between the first and second utterance.

The utterances were all written in his notebook while they were parked outside PC’s workplace. [ 33 ] Constable Holland indicated that PC was upset and he remembered PC hitting the seats in the rear of the police car. [ 34 ] The conversation all took place in the space of about a minute. At 1:24 pm, they left the parking lot of PC’s workplace to go to the police station. [ 35 ] Constable Holland repeated that at no time did he threaten PC or make him any promises. There was no indication that PC did not understand what the officer was saying.

To the contrary, Constable Holland testified that PC was engaging him and asking questions about the incidents. Throughout his interaction with PC, including the drive to the police station, PC remained in the rear of the police car but he was not handcuffed. [ 36 ] They arrived at the Pembroke police station at 1:33 pm. PC was lodged at 1:45 pm. PC did not make any other utterances while he was being lodged. [ 37 ] Constable Holland gave PC an opportunity to provide a statement. PC declined; he stated that he could not remember the incidents.

He could only remember that they had sex. [ 38 ] Constable Holland served PC with a Form 10 Undertaking at 1:45 pm. He explained the conditions on the undertaking to PC, including a condition that he have no contact with HL. He released PC at 2:42 pm. Cross-examination on the Voir Dire [ 39 ] In cross-examination, Constable Holland stated that when he first went into PC’s workplace, he spoke with another employee and asked for PC. He also confirmed that he did not contact PC by phone prior to going to his workplace because, due to the severity of the charges, he wanted to advise PC of the charges personally.

Constable Holland related that given the nature of the call the previous day, he was concerned that PC would be suicidal. “That’s why I wanted to have face-to-face contact”, he stated. He agreed that he did not consider asking PC to come to the station to speak with him. [ 40 ] Constable Holland agreed that he did not initially advise PC of the nature of the matter that he needed to speak with him about. He could not recall whether PC asked him if he was in any sort of trouble. He could not recall whether PC asked him if he was going to be arrested.

Constable Holland denied that he was asked those questions. “That’s not possible”, Constable Holland stated. “I probably would have said something like “we can discuss that outside.””

[41] Constable Holland reiterated that he could not recall the exact questions that PC asked once they were outside in the cruiser. “Ithink he asked me about dates”, he stated. He stated that he explained the charges and provided the two dates of the allegations. “I don’trecall exactly what I told him”, the officer told me. [42] Defence counsel asked, “When he asked you about the charges, prior to proceeding to explain them again given the dates and soon, did you say to him, “Let's not get into this now. Let's wait until we get to the detachment?” Constable Holland stated, “That mayhave been said.

I know I was actively engaged in writing. I don’t recall his questions to me if he did pose any or what my answerswere”. [43] Defence counsel asked Constable Holland about his notetaking and suggested that given the way the officer’s notes of theutterances appear, they were two separate utterances and there must have been a break in between them. Constable Holland stated thatPC “was just speaking in the back. If there was a break, it was minimal at best.” [44] Defence counsel suggested that Constable Holland did not note exactly what PC stated in the car.

Constable Holland stated “Iwas trying to capture as much as I could. Is it a complete log of every single thing that he said? No, but I do feel that the comments hemade pertaining to this event were captured. Is it possible I missed something? Yes, but I don't think it was significant or long innature.” [45] Constable Holland agreed that he could not recall mentioning HL’s name but he thought it was likely that he did. [46] Defence counsel suggested to Constable Holland that PC was referring to someone other than HL.

Constable Holland stated thathe was very confident that PC was referring to HL because while driving past J Street, which is the street on which HL lived, PC stated,“That Bitch.” Constable Holland recalled that this was the address where PC was apprehended the previous evening. He was not able tomake a note of this utterance because he was driving. [47] Defence counsel proceeded to ask Constable Holland about his dealings with HL and PC the previous evening. He agreed thatwhen he spoke with HL the previous evening, HL did not report that PC ever attempted to harm her or her family.

Her only report wasthat PC had made threats on his own life. Constable Holland also advised that he knew that PC had been apprehended. He was not toldwhether PC was admitted to hospital or whether he was assessed and released. He agreed that when he spoke with PC in the garage, PCtold him that he didn’t want to live anymore and what his mental health diagnosis was.

Constable Holland agreed that he was not awarewhether PC had been prescribed any medication as a result of his hospital visit. [48] Constable Holland testified that when he saw PC the next day, “his behaviour did not cause me concern” and there was“certainly a marked departure from what I saw the night prior.” [49] With respect to the interaction that occurred at the detachment when the Form 10 was served, defence counsel asked “What ifanything would you have asked him to solicit that answer?” Constable Holland responded, “I think I just asked him if he would like toprovide a statement.” He stated that this interaction would have taken place at the guard’s desk in the cellblock.

The area is videorecorded but not audio recorded. [50] Constable Holland agreed that PC appeared surprised at the allegations. “What I observed was an upset individual”, he stated. [51] At the conclusion of examination in-chief, cross-examination and re-examination of Constable Holland, I asked some questionsabout the issue of the caution of PC. In-chief, Constable Holland testified that after he read PC his rights to counsel, he cautioned him. When he asked PC if he understood the caution, PC answered, “Sure”.

It was then that the statements came out. [52] Constable Holland read to me the caution that he read to PC from his notebook: “You are charged with two counts of sexualassault. You are not obliged to say anything unless you wish to do so, but whatever you do say may be given in evidence.” [53] The officer indicated to me that he did not read the secondary caution.

Although I did not ask the officer to read me the languageof the secondary caution, I am aware that in the secondary caution, an accused person is advised that anything that the police may havesaid to the accused previously should not influence them or make them compelled to say anything. [54] I will return to the importance of this omission later in these reasons.

Crown Submissions Re Voluntariness [55] The Crown submitted that voluntariness of the statements was proven beyond a reasonable doubt. [56] The Crown argued that the evidence is clear that PC was possessed of an “operating mind” when the statements were madedespite the fact that he had been apprehended under the Mental Health Act, the previous day. The Crown submitted, citing R. v.

Whittle (SCC), [1994] 2 S.C.R. 914 that the test for operating mind was a low threshold, requiring only “a limited mentalcomponent which requires the accused have sufficient cognitive capacity to understand what he is saying and what is being said.” [57] The Crown argued that there was no evidence that Constable Holland induced PC, threatened him or made any promises. Iagree. [58] The Crown maintained that there was no atmosphere of oppression. On the contrary, the Crown noted that Constable Hollanddid not arrest PC inside his workplace, he did not handcuff PC, and the utterances were of short duration.

It was not a formal interview. Furthermore, the Crown argued that Constable Holland appropriately had PC’s mental health and his experience the night before in mindwhen he decided to deal with him face-to-face. I agree that there was no atmosphere of oppression. [59] The Crown argued that there was no evidence that there was any police trickery. On this point, I also agree.

[60] The Crown submitted that the absence of the secondary caution was not fatal. Citing R. v. Tessier 2022 SCC 35, the Crownargued that, given the absence of the threats, inducements, oppression, lack of an operating mind, or police trickery, the absence of acaution is of no consequence. [61] Finally, the Crown submitted that there was a sufficient record on which to determine the question of voluntariness. The Crownmaintained that issues with the accuracy, completeness and authenticity of the statement go to the weight that should be given to thestatement, not its admissibility.

The threshold issue of the sufficiency of the record only comes into play if it is impossible to determinewhether the accused’s will was overborn. There is no presumption that statements that are not audio or video recorded are involuntary. Defence Submissions Re Voluntariness [62] Defence counsel indicated that the sufficiency of the record, is the crux of its argument on voluntariness. [63] Defence counsel argued that the officer’s failure to remember and/or note the exact nature of the exchange between him and PCwas extremely problematic.

Defence counsel maintained that “it sounds like” the officer was questioning PC and PC was answering,something that the Constable Holland denied. [64] With respect to “the bitch comment”, Defence counsel expressed alarm that the officer did not make a note of this in hisnotebook. He argued that this was a hostile comment with threatening overtones.

He thought it was extremely unlikely that the officerdid not write it down. [65] Defence counsel also expressed concern about the lack of a secondary caution, given that PC had dealings with the Police thenight before. [66] Defence counsel argued that it was not certain that PC was in fact speaking about HL. He maintained that the statements wereambiguous given that PC could not remember anything about the dates of the incidents.

Crown Reply Submissions Re Voluntariness [67] In reply, Crown counsel contended that I can infer that PC was referring to HL when he made the statements, given that thestatements arise immediately after Constable Holland explained the dates to him. Analysis – Voluntariness [68] At the outset, as I indicated when I summarized the Crown and Defence positions, I agree with the Crown on the issues of lack ofinducement, threats or promises, atmosphere of oppression and police trickery. There is no evidence that these factors are present. Defence counsel conceded as much.

The Issue of Operating Mind [69] In this case, there are two aspects to the issue of whether PC had an operating mind when he spoke with Constable Holland. First, PC was suicidal the night before and was apprehended and taken to hospital. Secondly, Constable Holland did not fully cautionPC after reading his rights. [70] The first issue can be dealt with quickly. The evidence is clear that regardless of what occurred the night before, PC was fullycompos mentis when he spoke with Constable Holland the next day. He understood the right to counsel. He declined to call a lawyer. He also understood the caution.

He asked the officer a question about the nature of the offence and the officer gave him the dates thatthe alleged events took place. Later at the station, he declined to give an interview on the basis that he had no memory of the events. [71] In R. v. Whittle, supra, the accused suffered from schizophrenia. He confessed to murder and other offences after “inner voices”told him to confess.

With respect to the operating remind requirement, Justice Sopinka stated: The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accusedhave sufficient cognitive capacity to understand what he or she is saying and what is said.

This includes the ability to understand acaution that the evidence can be used against the accused. [72] Later in the Judgment, Justice Sopinka noted: To the extent that the inner voices prompted the appellant to speak in apparent disregard of the advice of his counsel and to hisdetriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be thebasis for exclusion.

Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, incombination with conduct of a person in authority, a statement is found to be involuntary. As for the Charter rights asserted, once theoperating mind test is established, an accused is not exempted from the consequence of his or her actions absent conduct by the police"which effectively and unfairly deprived the suspect of the right . . ." (Hebert, supra, at p. 182). [73] Despite the fact that nearly thirty years has elapsed since Whittle was decided, the decision remains good law.

As recently as2022, in R. v. Tessier, supra, the Supreme Court of Canada reaffirmed these findings at paragraph 8, noting: Generally, the operating mind doctrine requires the Crown to show that the accused possessed the limited cognitive ability to understandwhat they were saying and to comprehend that the statement might be used as evidence in criminal proceedings (R. v.

Whittle, (SCC), [1994] 2 S.C.R. 914, at p. 939). [74] PC had significantly more than a “limited cognitive ability to understand what he was saying and to comprehend that thestatement might be used as evidence in criminal proceedings.” Thus, I am satisfied that the Crown has proven beyond a reasonable doubtthat the mental health difficulties that PC was suffering from the evening before did not negate the operating mind requirement when he

spoke to Constable Holland the next day. [ 75 ] Of greater concern is the absence of the secondary caution. As Justice Kasirer stated in Tessier , supra, at paragraphs 9 to 12 : [9] Drawing on scholarly commentary on the burden of proof relating to the operating mind dimension of voluntariness, I would recognize that the absence of a caution for a suspect constitutes prima facie evidence that they were unfairly denied their choice to speak to the police (see S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶8.119).

In circumstances in which the accused has raised credible evidence that their status at the time of questioning was that of a suspect, the presence or absence of a caution takes on meaningful significance. Where the accused further puts the lack of a caution and their increased legal jeopardy into evidence — by cross-examining Crown witnesses or otherwise — they have met their evidentiary burden that raises the issue as to whether their statements were freely given.

It then falls to the Crown to discharge its persuasive burden by proving either that the accused was not in legal jeopardy, in that they were a mere witness and not a suspect, or that the absence of a caution was without consequence and that the statements were, beyond a reasonable doubt and in view of the context as a whole, voluntary.

This would give substance to the recommendation formulated by Charron J. in Singh for trial judges seeking to weigh the importance of a lack of caution. [10] Beyond merely showing that the person questioned had an operating mind, there may also be circumstances in which the absence of a caution is in point of fact a willful failure by the police to give a caution. This might reflect a deliberate tactic by the police to manipulate the individual into thinking that they are a mere witness and not a suspect so that, in making a statement, their jeopardy is not at risk.

Where the failure to caution a suspect amounts to trickery, the effect of the police conduct may have an impact on voluntariness and should be analyzed in that light (see Oickle , at paras. 67 and 91). [11] As Charron J. observed in Singh on the question of voluntariness, “the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will” (para. 36). If the Crown cannot prove that the absence of a caution had no impact on voluntariness, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion of inadmissibility.

The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary. This does not displace the ultimate burden on the Crown to prove voluntariness beyond a reasonable doubt.

Rather, it emphasizes the legal significance of the absence of a caution as a potential sign of involuntariness where a person is a suspect. [12] But to be clear: insisting on a caution in all circumstances where a suspect is questioned by police, or requiring that the Crown prove what amounts to a waiver of that caution, are not conditions of voluntariness. In my respectful view, the Court of Appeal mistakenly imposed this high standard based on proof of actual, subjective knowledge.

Where knowledge can be shown, courts have forgiven the lack of caution, but just as the caution is not obligatory, proof of actual knowledge of the right to silence or the consequences of speaking to prove voluntariness is not either. That high standard applied in all cases in the pre-detention phase of an investigation could upset the balance of individual and social interests upon which the confessions rule rests. [ 76 ] In Tessier , the Supreme Court urged a flexible approach to the issue of the effect that the lack of a caution may have on a statement given to Police.

Justice Kasirer explained the approach that should be taken at paragraphs 78 to 83: [78] I agree with the Attorney General of New Brunswick that the weight to be given to the absence of a caution will fall on a spectrum. At one end, the significance attached to the failure to caution an uninvolved individual — such as the person on the street corner — will typically be negligible. The relative lack of vulnerability of an uninvolved individual or witness who is questioned by police means that a caution will typically be unnecessary to show that the statements were voluntary.

To require that police caution every person to whom they address questions in a criminal investigation, even where those questions are asked at a police station, would be — as the Court of Appeal rightly noted here — an unworkable standard. It would unduly limit the broader societal interest in investigating crime by excluding reliable and fairly obtained statements in circumstances that do not warrant it. [79] At the other end of the spectrum, the vulnerability and legal jeopardy faced by detainees cement the need for a police caution.

Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an “informed choice” whether or not to participate in the investigation (I borrow the expression “informed choice” from Singh , at para. 33). The balance courts seek to achieve in applying the confessions rule in this context tilts in favour of protecting the rights of the detained person and of limiting society’s interest in the investigation of crime.

The weight attached to the absence of a caution in these circumstances, while not determinative of the question of voluntariness owing to the contextual analysis required, will be at the highest end (see Singh , at para. 33). [80] In circumstances in between, where police interview a suspect who is not detained and do not provide a caution, I agree with the longstanding view that the lack of caution is not fatal, but that it is an important factor in determining voluntariness (see generally Kaufman, at pp. 142-46).

The importance attached to the absence of a caution will also be significant in recognition of the potential for vulnerability and exploitation of an informational deficit, unless it can be demonstrated in the circumstances, as I will explain in more detail below, that there is no doubt as to its voluntariness. This builds incrementally on Charron J.’s helpful reasons on this point in Singh .

The heightened jeopardy and consequential vulnerability faced by a suspect, as opposed to an uninvolved individual, warrants special consideration in the final analysis to ensure adequate and principled protections under the confessions rule. Although encounters between police and citizens sometimes mean the status of a person may change over the course of an interview, investigators are well accustomed to signs that raise their suspicions.

This would be the proper moment to caution the interviewee to prevent the potential exclusion of the statement at trial. [81] The first step in assessing the importance of the absence of a police caution is therefore to identify whether or not the person was a suspect. I would endorse the suggestion of the Attorney General of New Brunswick that fairness considerations may arise where a person is a suspect, and that a suspect test is a useful way of determining whether an accused person may have been unfairly denied their right to silence (see Oland , at para. 42; Smyth , at p. 34, citing Boudreau ).

This is also consistent with statements from this Court that “the confessions rule applies whenever a person in authority questions a suspect” ( Oickle , at para. 30). The test is as proposed by the Attorney General of New Brunswick: whether there were objectively discernable facts known to the interviewing officer at the

time of the interview which would lead a reasonably competent investigator to conclude that the interviewee is implicated in the criminaloffence being investigated (see Morrison, at para. 50; Oland, at paras. 43-46; Smyth, at pp. 34-36; Wong, at para. 64; Merritt, at para. 39;Higham, at paras. 5-7). [82] The test is objective, and includes both an assessment of the objectively discernable facts known at the time and theinteraction between police and the interviewee.

Pointed questions, particularly where they suggest the culpable involvement of theindividual being questioned, may indicate that the person is a suspect, but pointed questions may have other legitimate ends, dependingon the circumstances. A trial judge is best positioned to determine whether the police were simply seeking to gauge a person’s reactionto certain lines of questioning, or whether the questioning is more consistent with the interrogation of a true suspect.

While the fact thatthe police initiated the interview does not, on its own, indicate that a person is a suspect, it may serve as a sign that a person was asuspect where combined with other indications. That said, questions that provoke anxiety or discomfort or even imply guilt do notnecessarily mean a person is a suspect.

The nature of the interaction between police and the individual and its connection to theobjectively verifiable facts is therefore relevant to the suspect test. [83] Once a court reaches the conclusion that a person was a suspect, the absence of a police caution is not merely onefactor among others to be considered. Rather, it is prima facie evidence of an unfair denial of the choice to speak to police, and courtsmust explicitly address whether the failure created an unfairness in the circumstances (see Oland, at para. 42). It cannot be washed asidein the sea of other considerations.

Instead, it serves to impugn the fairness of the statement and must be addressed, by the Crown, in theconstellation of circumstances relevant to whether the accused made a free choice to speak. In discharging its burden to prove beyond areasonable doubt that a statement was voluntary, the Crown will need to overcome this prima facie evidence of unfairness. [77] In this case, PC was detained. He was more than a suspect. He was being accused of the crime and arrested for that crime. Following Tessier, therefore, I find that there is prima facie evidence of unfairness here.

He is entitled to the highest protection. [78] A few paragraphs later, at paragraphs 86 to 88, Justice Kasirer provided the following guidance to trial judges with respect tohow to determine whether the Crown has, notwithstanding this prima facie evidence of voluntariness, treat statements made in theabsence of a caution: [86] In the course of cross-examination of police witnesses or upon hearing the accused’s own testimony, it may come to light that theaccused was in a situation of heightened vulnerability and risk, either because they were detained or a suspect, and were not given acaution despite being suspected of a crime.

That is sufficient to cast doubt on whether the interviewee spoke voluntarily as understood inWhittle and Oickle; that is, that the accused had the ability to understand what was being said and that it may be used in evidence, andthat there was no other recognized consideration impugning voluntariness.

The accused thus has met their evidentiary burden to make theabsence of a caution a “live issue”; in keeping with its persuasive burden, the Crown must then satisfy the trial judge beyond areasonable doubt that the statement was nevertheless voluntary. [87] In these circumstances, it is appropriate for the trier of fact to undertake a contextual inquiry to determine whether anunfairness arose that vitiates voluntariness by denying the right to silence.

This might arise where there is evidence of police trickery, forexample circumstances in which the absence of a caution is the result of a willful failure to give a caution or a deliberate tactic tomanipulate the suspect into thinking they have nothing at stake (see, e.g., R. v. Crawford, (SCC), [1995] 1 S.C.R. 858,at para. 25; R. v. Auclair (2004), (QC CA), 183 C.C.C. (3d) 273 (Que. C.A.), at para. 41; M. (D.), at para. 45;Higham, at para. 22).

Impropriety on the part of the police, usually in the form of obscuring the jeopardy faced by the suspect toencourage cooperation, may unfairly deny a suspect their right to silence. Plainly, the statement should be excluded if the policedeception shocks the community.

But even if it does not rise to that level, deceiving the interviewee into thinking that, as a mere witness,they are in no jeopardy and that their statements will not be used in evidence against them could preclude admissibility at the end of theday. “[T]he ability to make a meaningful choice remains pertinent where trickery is involved”, write Lederman, Fuerst and Stewart, “andexclusion is mandated where there is a reasonable doubt as to the confession’s voluntariness in this regard” (¶8.126).

I would note thereis a distinction between misleading a person about the extent of their jeopardy and declining to inform a person that they are a suspect.Police need not provide details about the status of their investigation provided the salient information is communicated and there are nostrategies of deception (R. v.

Campbell, 2018 ONCA 837, 366 C.C.C. (3d) 346, at paras. 8-9). [88] While not necessary for the Crown to demonstrate, proof that the accused was in fact subjectively aware of their rightto silence or aware of the consequences of speaking will be powerful evidence that the absence of a caution did not underminevoluntariness. In such an instance, doubts as to fairness that could result from the absence of a caution plainly do not arise because thesuspect has the information necessary to choose whether to speak or remain silent. For example, in the cases of Pepping, R. v. Boothe,2016 ONCA 987, and R. v.

Blackmore, 2017 BCSC 2682, cited by the Court of Appeal, the statements were held to be voluntary despitethe absence of a caution. In each of these cases, the court was satisfied that the suspect was aware of the consequences of speaking.Stated non-exhaustively, indications that a suspect may be aware of the right to silence or the consequences of speaking includeawareness of being recorded (R. v. Leblanc (2001), (QC CA), 162 C.C.C. (3d) 74 (Que.

C.A.), at para.17),indications that the suspect is directing conversation (Boothe, at para. 20 ), awareness of what the police are investigating andthe suspect’s alleged role in the investigation (M. (D.), at para. 45; Leblanc, at para. 26), and exercising the right to silence by decliningto answer police questions (M. (D.), at para. 46). I would underscore that these cases do not stand for the proposition that the Crown mustprove beyond a reasonable doubt subjective knowledge of the right to silence or that the proof of knowledge displaces the settled test foran operating mind.

Rather, they indicate that where there is evidence that the accused was aware of their right to silence or of theconsequences of speaking, the weight attached to the absence of a caution becomes less important because there are other strongindications of voluntariness. An eagerness to talk, as in the case of Pepping (at para. 6), may or may not serve as evidence ofvoluntariness, depending on the circumstances. A person may appear eager to talk as a result of either a genuine interest in doing so orthrough a feeling of fear and compulsion. [79] The Supreme Court revisited voluntariness later in 2022 in R. v.

Beaver 2022 SCC 54 and Justice Jamal, writing for the majority,upheld Justice Kasirer’s decision. [80] The Court of Appeal recently considered this issue again in R. v. Groves 2023 ONCA 211. Groves was charged with murder.

During the trial, while in the holding cell, the accused told a Special Constable that she wanted to kill the deceased but she did not think it would happen. She stated that she stabbed the deceased and she panicked and watched him die. There was video of the conversation but no audio. The accused could be observed demonstrating to the officer how she stabbed the deceased. The Special Constable was not taking notes. She reduced the conversation to writing later.

The accused testified on the voir dire and stated that she knew that she was speaking with a person in authority and that what she was saying would be conveyed to Crown counsel. [ 81 ] The trial judge admitted the statement. Writing for himself and Justices Tulloch (as he then was) and Lauwers, Justice Coroza found at paragraphs 33 to 37: [33] First, the appellant submits that to have the capacity for an operating mind, the accused must possess a sufficient degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused.

The appellant argues that the evidence before the trial judge was that the appellant became aware of the circumstances of her jeopardy at “some point” in the conversation but was not aware of the implications of her utterances at the outset. The appellant argues that, based on the video, the incriminating statement was blurted out a full minute before the appellant had a contemporaneous awareness of what was at stake. According to the appellant, she did not, until that point, appreciate that everything she was saying to Cst. Higley would be communicated to Crown counsel.

The appellant submits that the trial judge should have recognized this. [34] I reject this submission. The test for an operating mind requires proof that the accused was capable of making a meaningful choice to speak and that choice was not improperly influenced by state action: Tessier , at para. 51 . In my view, the trial judge’s ruling is fully supported by the evidence and I see no misapprehension of that evidence. Before making the statement, the appellant knew that she was speaking to a person in authority. Cst. Higley was in uniform. Indeed, Cst.

Higley had spoken with appellant on multiple occasions, and the two had even communicated before the 2016 trial proceedings because of the appellant’s previous involvement in the justice system. The appellant was fully aware that Cst. Higley might pass on her remarks to the Crown and that her conversation would eventually be before the court. In short, on the day in question, the appellant spoke to Cst. Higley because she felt remorseful about Mr. MacKenzie’s death and wanted Cst. Higley to convey that remorse to Mr.

MacKenzie’s family and Crown counsel in the hope that it might help her. [35] Second, the appellant argues that the trial judge effectively ignored the circumstances of the interaction between Cst. Higley and the appellant. The appellant was emotionally distraught and had a cognitive impairment. She was interacting with someone with whom she believed she had a friendly relationship, someone with whom she had to interact with to get her basic needs met. She argues that there was nothing in the conversation with Cst. Higley that would have indicated what was at stake for her in making the disclosure.

The conversation between Cst. Higley and the appellant was not an interview, Cst. Higley was not taking notes. Nor did she caution the appellant, which, while not dispositive, raises a reasonable doubt as to whether the appellant had an operating mind. [36] I do not accept this submission. The trial judge found that, despite the appellant’s emotional upset, she had an operating mind. Nor did the trial judge err in finding that, despite her cognitive impairment, the appellant knew that if she spoke to a person in authority anything she might say might be used against her.

The trial judge referred to the evidence that when the appellant was interviewed on July 30, 2012, by another police officer in relation to the case, she cut short the caution that was being provided to her at that time and advised that she was aware she was being questioned by the police and understood that anything she might say could be used against her. The trial judge found that the absence of a caution given by Cst. Higley was not fatal to the admissibility of the appellant’s statement. The absence of a caution is not determinative of voluntariness: Tessier , at para. 72 .

Instead, proof that an accused was subjectively aware of the consequences of speaking is powerful evidence that the absence of a caution did not undermine voluntariness. This is because the accused has the information necessary to choose whether to speak or remain silent: Tessier , at para. 88 . On the appellant’s own evidence, she knew who she was talking to and the consequences of her speech.

In these circumstances, the trial judge properly found that the absence of a caution was not determinative of the voluntariness of the appellant’s statement. [37] I see no basis to interfere with the trial judge’s conclusion that the appellant’s statement to Cst. Higley was voluntary and would defer. [ 82 ] After reviewing these authorities and instructing myself on the appropriate principles, I am satisfied that PC was possessed of an operating mind when he gave his statement.

I am also satisfied that, notwithstanding the fact that PC was not fully cautioned, which at law renders his statement prima facie involuntary, the Crown has proven that the lack of the caution is of no consequence. I make this finding given the following constellation of facts:

a) PC was in a much better frame of mind when Constable Holland met with PC on June 19 than he was the night before. PC had recent contact with the police. Although he did not initially understand the nature of Constable Holland’s visit, he must have understood what their role was. He had been detained under the Mental Health Act 18 hours previously.

b) PC knew that he was dealing with the police. Constable Holland was dressed in full uniform. He was operating a police car.

c) PC knew that he was under arrest and detained. He knew that the offence that he was going to be charged with sexual assault.

d) PC was made aware of his right to counsel. He dismissed the right to counsel by stating that he knew Constable Holland’s “stuff” and he declined to speak to counsel. He fully understood what was happening.

e) Constable Holland was not interviewing PC. He was trying to go through the process of arresting him which included the reading of his right to counsel, the caution and the secondary caution.

f) PC began directing the conversation with Constable Holland. He asked Constable Holland to explain the charges. In answer to this question, Constable Holland gave him the dates of the allegations.

g) At this point, PC blurted out the first and second statements.

h) There is nothing about Constable Holland’s behaviour toward PC that was oppressive. He was not interviewed for hours. The

statements were made spontaneously by PC within two minutes of being arrested. Although he was detained in the back of a policevehicle, PC was not even handcuffed. Constable Holland did not use any tricks to elicit a statement.

i) With respect to the secondary caution, it is clear that the normal arrest procedure, which would have included the secondarycaution, was interrupted by PC asking questions. Constable Holland did not initiate any interview with PC. He tried to answer PC’squestions. The conversation clearly took place before Constable Holland could get to the point of completely cautioning PC. In thisway, the lack of the secondary caution is of no consequence.

j) This is not a case where there is the complete absence of any caution. Constable Holland read PC the primary caution – whichwarned PC that he was not obligated to say anything and anything that he did say would be taken down and given in evidence. To thisPC responded that he understood. He answered “sure”. Only the secondary caution was omitted.

k) Later, at the police station, PC declined to give a statement and he told the officer that he had no memory of the incidents. The Issue of Whether There is a Sufficient Record of the Statements [83] In R. v. Learning 2010 ONSC 3816, Justice Code summarized the state of the case law on the issue of whether the police recordwas sufficient. He stated at paragraphs 62 to 65 that: [62] Accordingly, the current state of the law is that the accuracy and completeness of the record of a voluntary statement is an issueof weight that is determined at trial.

However, the accuracy and completeness of the record of the circumstances surrounding themaking of the statement can relate to proof of voluntariness on the voir dire. This is not an easy distinction to apply, especially in a caselike the one at bar where no evidence is called by the defence on the voir dire.

It may be unclear in such a case whether the defence israising issues of voluntariness or issues of accuracy. [63] As already noted, there is no suggestion in the evidence on the voir dire in this case of any inducement or any oppression suchthat the will of the accused was overborne by the conduct of the police. See: R. v. Oickle (2000), 2000 SCC 38 , 147 C.C.C.(3d) 321 (S.C.C.). The accused had only been under arrest for a short time and he had been in the custody of the two uniformed arrestingofficers throughout. I am satisfied that they treated him appropriately at all times.

In addition, he was treated respectfully by the bookingofficer and was clearly in a light-hearted mood, given his tape-recorded banter to the effect that “life is good”. Sgt. Schoch’s subsequentencounter with the accused was brief and nothing in the evidence suggests oppression or an overbearing of the will during the fewminutes that Sgt. Schoch was in the interview room with the accused. [64] I am satisfied that the real issue raised by the defence on the voir dire concerns the accuracy and completeness of Sgt. Schoch’snotes of the actual statement made by the accused and any questions put to him by Sgt. Schoch.

In other words, it is the same issue as inLapointe. In Moore-McFarlane, by way of contrast, there were live issues of voluntariness raised by the evidence called on the voir direand the completeness or incompleteness of the record related to those issues. [65] I am therefore satisfied that the Crown has proved the voluntariness of the statement at common law. However, the unreliabilityof Sgt. Schoch’s record of the statement will become an important issue that I will address further in relation to s.24(2) of the Charter. [84] Learning has subsequently been cited with approval: see R. v.

Flanagan 2015 ONSC 2513; R. v. Hansa 2018 ONSC 2943. Additionally, while not specifically relying on Learning, the Court of Appeal has endorsed these principles in R. v. Fernandes 2016ONCA 772 at paragraphs 39 to 42. [85] I am satisfied that the completeness of the record does not detract from the voluntariness of the statements that PC gave toConstable Holland. [86] Constable Holland stated that the first two statements were made while PC was in the rear of his police car right after he wasarrested and given his rights to counsel.

The officer had his notebook out and was trying his best to note verbatim what PC was stating. As I have already explained, this was not a formal interview. I find that Constable Holland was not asking questions. He was trying toexplain the process and PC’s statements were spontaneous utterances to what he was hearing. Constable Holland did his best to writedown exactly what PC stated and he used quotation marks in his notebook which was, generally, a shorthand way of stating that thosewere PC’s exact words.

Thus, to the limited extent that the completeness of the record can have a bearing on the issue of voluntariness, Ifind that the statements are voluntary. [87] With respect to the weight that I will give the statements, Constable Holland wrote PC’s responses in his notebook in quotationmarks. I find that there is nothing about the statements that makes them less probative on the basis of the completeness of the record.

As I indicated, this was not a formal interview situation; Constable Holland was trying to go through his routine of arrest and rights tocounsel when the statements were made. [88] The exception to this is the utterance “That Bitch” as they passed J Street, which is the street on which HL lived. It is notsomething that Constable Holland noted until he testified in Court. [89] Furthermore, this utterance does not help me decide anything about the case. All it does is demonstrate animus towards thecomplainant given that the PC just found out that he was being charged with sexual assault against HL.

That statement will not be

admitted. It is not probative. The Balance of the Evidence on the Trial Constable Holland [ 90 ] The parties agreed that Constable Holland’s evidence on the voir dire would apply to the trial and the Crown did not recall him in-chief. [ 91 ] Defence counsel continued to cross-examine the officer after the voir dire. [ 92 ] Constable Holland agreed that HL came into the police station the next day and gave an audio-video statement. [ 93 ] She also gave the officer some text messages which she sent to a friend (AN) after the two sexual assault incidents.

Constable Holland could not recall when HL gave him those text messages. He believed that HL emailed the text messages to him and he printed them out for disclosure. He agreed that the police did not forensically examine HL’s phone. [ 94 ] Constable Holland agreed that he had a two minute conversation with AN on June 21 to ask her if she had received the text messages. AN confirmed that she had seen them. [ 95 ] He testified that once PC was released on conditions, he told her that PC was not to have any communication with her. He also agreed that he would have told HL not to have any communication with PC.

Constable Holland believed that he had this discussion with HL in person because at the same time, he gave her the key to her house which he had received from PC. [ 96 ] Since June 2021, he has had one other dealing with HL which related to PC. He advised that four months ago (which I took to be in December 2022), HL reported that there may have been a breach of PC’s conditions.

Constable Holland indicated that HL was not prepared to give him a statement in relation to that potential breach because she was pre-occupied with other aspects of her personal life. [ 97 ] In re-examination, Constable Holland indicated that he did not take a statement from AN because she stated that the entirety of the conversation was captured in the text messages that were provided. HL [ 98 ] HL testified in person in the courtroom. [ 99 ] She indicated that PC was her former partner. They met about eight years ago through a mutual friend. They started a relationship in 2016.

She explained that initially they were “just friends”. They stayed connected on Facebook. In January 2016, they started chatting more. By May 2016 they were dating. They were never married or engaged. [ 100 ] The have one child together, P, who is five years old. HL had two older children from her first marriage, C and K. She stated that she has an eight-month-old at home that she has had with her new partner and she was pregnant with another child when she testified. Her “new” relationship is with YD.

It commenced in August of 2021. [ 101 ] When the police became involved on June 19, 2021, they were living together but they were not in a relationship. She estimated that it had ended “months prior”. She stated that they continued to reside together after the end of the relationship because she “felt bad”. She knew that PC did not have any close family and he had nowhere to go. “I was keeping him out of pity. We had a daughter together and I did not want to see him out on the street.”, she told me. She explained that the house where they lived was her home.

It had been left to her by her mother in 2015. [ 102 ] She stated that before June 2021, she had “kicked him out before and he came back as I thought we would try again. I classify him as a frequent flyer as he would come and go and come and go.”, she said. She explained that “my emotional side took over and we decided to try again.” She reckoned that she tried to make it work for between one and two weeks. [ 103 ] When asked who ended the relationship, HL indicated that it was “more of a mutual thing.” She explained that they were both “exhausted” and it was clear that the relationship was over.

She stated that as much as they both wanted the relationship to end, neither of them wanted finality and they “kind of just drifted apart.” [ 104 ] She stated that they often had discussions about PC moving out. He was angry when this came up. He would yell and throw things. [ 105 ] HL recalled that on June 18, 2021, she called the police because she and PC got into an argument. He pulled out a knife. He was very angry and was threatening to take his own life. She had children at home. He tried to give HL the knife and told her to kill him. He then took off.

She called the police and they arrived within about three minutes. [ 106 ] The police asked her why PC was in that frame of mind and what she wanted to see going forward. They did not initially talk about any sexual assault. This came up because the officer had a card that he removed from his pocket and he started asking her questions from the card. One of the questions related to sexual assault and HL indicated that it had occurred. The officer then asked her to go to the office to have a conversation. She did not recall who the officer was.

She did not think that she was going to discuss sexual assault when the police came. [ 107 ] HL has now married. She started seeing YD on June 5, 2021. They had been friends for 17 years. It was platonic. HL’s Account of the August 31, 2020 Incident [ 108 ] HL related that on August 31, 2020, it was pretty late. She was doing her “mom duties” at night after her children had gone to

sleep. She was exhausted. “I remember crawling into bed”, she said. She hoped that PC would be sleeping. [ 109 ] She believes that she was positioned on her stomach because that is how she normally sleeps. She does not know how PC was originally positioned but he slept on the right side of the bed. [ 110 ] She recalled that PC got up when she came to the bed. She thought that he was going to leave the bedroom or go the bathroom. A few minutes later she felt a chill.

PC had removed the blankets from her legs. [ 111 ] When PC returned to the bed, he was standing on her left-hand side in the middle of the bed in the area of her belly. PC told her to roll over. He was trying to touch her and was positioned so that he was leaning over her. He was trying to take off her underwear. He was only using one hand but she could not remember which hand it was. He was ultimately successful in removing her underwear. She was saying “no” throughout. She was trying to grab the blanket. She told him she wanted to go to bed.

He was keeping her from grabbing the blanket. [ 112 ] “He had whipped out his genitals”, she said. She rolled over halfway to communicate with him. She told him that she was not in the mood for anything sexual. He told her repeatedly to roll over. He then rolled her over himself and climbed on top of her. He was still standing on the floor and she was lying on her stomach. He was standing in between her legs. She recalled that their bed had a hard headboard and she had no room. She stated that she did not want anal sex and asked if they could just have vaginal sex.

He said, “No, I want to put it in your ass”. [ 113 ] She could hear him rummaging through things. She was trying to move her legs to get away from him but she was so exhausted she had no strength. At one point he had a bottle of lube. [ 114 ] She remembered that he got a little closer to her. She felt cold, wet and slimy which she attributed to the lube. He started putting his penis between her butt cheeks. She told him that if he wanted sex, that was fine, but she was not into anal. “All I want is your ass”, he said. He penetrated her anally. At one point she asked him to “back off and let it go”.

He said “I promise I will go slow”. [ 115 ] He announced “Oh, I’m done”. He got up and left the bedroom. “He ended up finishing and walking away like nothing happened”, she said. She went downstairs. She remained downstairs for a good half an hour. She remembered that she was bleeding from her anal area. When she went back upstairs to the bedroom, PC was snoring. [ 116 ] What happened was never discussed again. [ 117 ] She was sore for a day after. She described the bleeding as “surface blood, nothing major”. She did not seek medical attention. [ 118 ] When Crown counsel asked HL if she consented, she said no.

She said that she froze. She did not respond or move. She likened herself to a dead body. [ 119 ] She cried from the moment he penetrated her. She remembered tears coming down her face. She did not think that he would have been aware that she was crying. “I figured the less quiet I was and the lesser I moved, the quicker it would be over”, she said. [ 120 ] A couple of days later, she told her best friend, AN about what happened by text through Facebook Messenger. HL’s Account of the March 22, 2021 Incident [ 121 ] HL said that the March 22, 2021 incident was “kinda the same idea”. It was late.

She crawled into bed. She was laying on her stomach. She felt the back of PC’s hand go from her butt to her legs. He was caressing her bum cheeks. She popped her head up and said “No sex tonight”. She said that “sex was not an option for the night.” [ 122 ] He initiated trying to have sex and she told him “no” a few times. She was wearing pajama pants which he removed. [ 123 ] He climbed on top of her so that he was sitting on her upper thighs. He started putting his hands between her legs to touch her vagina. “He was trying to finger me.

I don’t know if he was trying to turn me on.” She kept her legs together so that he could remove his fingers. Nonetheless, he was successful in digitally penetrating her. [ 124 ] He asked her if she wanted to “do anal”. She said, “No”. She said, “If you want to have vaginal, just get it over with.” She added, “but I was not in the mood for anything.” [ 125 ] There was no lube this time. He went from her vagina to her anal area and back and forth a bit. He was not successful in penetrating her anally but he tried a number of times.

They ultimately had sex vaginally. “I didn’t consent to anything” she said. [ 126 ] At one point she told him that she could not breathe because her head was on the pillow. She managed to get up from the bed and go to the sink to get a drink. She explained that there was a sink in the corner of the bedroom. [ 127 ] PC followed her. [ 128 ] She reached down to try to grab another pair of her pajamas which was located in a laundry basket beside the sink. Her face had been in the sink because she was using her hand to cup water to take a drink. He pushed her over and tried to get into her anal area again.

She managed to wiggle away so he couldn’t. He had one hand on her hip and one hand on her back. He was applying force but it was “not a great amount”. [ 129 ] She said “no”. She described her tone of voice as “frustrated”. She said she spoke loudly enough that he would have been able to hear him. [ 130 ] At this point he had managed to get her back over to the bed. He got into her vagina again and she yelled, “I have to pee.” She

got to the end of the bed. She managed to get one leg into her pajamas. [ 131 ] She went downstairs and he did not follow her. She waited downstairs until she heard the bed squeak. When she returned up to the bedroom, he was sleeping. [ 132 ] The next morning she told him that she was upset about it. He said, “I don’t know what the big deal is. I didn’t actually get it in your ass.” [ 133 ] Crown counsel asked HL why she told PC that they could have sex vaginally if wasn’t consenting. HL replied, “Because I knew what was going to happen.

It was an option for him instead of hurting me.” The Text Messaging Between HL and AN [ 134 ] HL recognized the text messages between her and AN that were ultimately made Exhibit 1. [ 135 ] HL said that AN was the only person she confided with about these incidents. The text messages in relation to the August 31, 2020 incident state (pages 5 through 9 of Exhibit 1): September 20, 2020 HL: Hey. Can I ask you something? AN: ? HL: If you didn’t want sex, and said no and nick kept going, would that make you mad? AN: Of course. That’s forced sex. Aka rape. HL: Ok, I just needed to hear that, thank you. AN: You ok?

HL: I’ve been avoiding to tell you something, but the subject came up while I was talking to his aunt tonight and I don’t know what to think. AN: Well I’m here if you need to talk. HL: I don’t think I should lol. But thank you. AN: Oh ok, ill respect your choice. Either way I’m here HL: I know. Just scared is all. AN: Didn[p] rape you? You don’t have to answer. But now I’m worried Just remember no means, no. Not matter who it’s with. *no HL: Will you proimise not to say anything. AN: Ofcourse HL: So on August the 31 st I wanted to go to bed.

I remember my eyes burning so bad and being so exhausted from not sleeping

much. I was sober too I might add. I add crawled into bed and he left the bed, I figured he was going to pee. At this point pint I feel my body just sinking into the mattress…Zzz, then I feel the Blankets begins me moving. I lift my head and he’s standing over me. I’m like what are you doing. He’s like roll over. I’m like what? He’s like roll over and whips out his dick. I’m like no [p] I’m too tired. So he rips the blaketts off and pulls down my Jammie’s and attempts to roll me over. I’m like seriously I’m cold and tired, I’m not in the mood tonight. The he legit pushes me to my stomach and gets on top.

All he wanted was my ass. I’m just pleas no if sex is what you want, no ass. He’s like no I want to fuck your ass. I said no, and he tried to move and grab my pjs and he pushed me down and had found my hole. His first push wasn’t all that gentle and I started saying ow. He’s like well I used lube, just stop moving and I’ll go slow. I’m like back up it hurts and he’s like here and squirts more lube. I’m bawling at this point and I feel numb. I can’t move. My body froze and then he’s like can I pick up the pace….I don’t remember saying anything and then He just bangs it to town and cums inside me.

He got up and said nothing. I got up, wiped my tears away and went downstairs to use the bathroom. Still in shock I come back to bed and say nothing….we haven’t talked about it since. AN: I’m so sorry September 7, 2020 9:22 pm AN: You think you’ll talk to him about it. HL: No. I won’t because I know he won’t see it as him doing anything wrong. ….. March 23 2:15 pm HL: So I wasn’t going to say anything…but I need to tell someone It’s eating at me so bad I’m a mess My whole days been awful. I’m so moody. I’m so tired. I’m so torn (emotionally) and I’m sore. AN: ?

What’s going on HL: So after doing laundry, dishes and having a shower I went to bed. It was around 10:30/11 and I probably was sleeping before I hit the bed... [P] has one to bed at 8 so I knew it was going to be drama free. I so I thought… I just feel my body sink into the sheets and then a whole bunch of [unintelligible] Pat had rolled into me. I could feel him putting his hands on my as. [area of text messages redacted] Anyways I was too tired to fight him and figured he was JUST putting his hand there and whatever. It’s no secret that I still love sex, I just don’t want it from him.

I was wet but I dind’t want to be. It was so confusing I wish I could describe it. He started fingering me and I’m like go to bed [p], I’m too tired.

He then takes my underwear off and gets on top-ish from behind. He was so rough. He wouldn’t stop. I tired to giggle away and he’d move forward. Kept plunging away. My neck was bent and I was completely into the headboard. He was hurting me and I’m legit crying into my pillow at this point. Then he tries to stick it in my ass. I’m not horny enough for that and I’m already starting to get dry. I never dry [unintelligible] I’m just so MULTIPLE times. I finally was able to get a leg out but he grabbed it and swung it back. I know he can’t hear me crying but I am. He was fighting me.

He was determined to get it in my ass. I finally got myself free when I said “ok, just one second”….I escaped to the sink to get a drink. I couldn’t breath. He follows me and pins me to the sink to continue….I grabbed my underwear and started putting them on. Now, I’m over the bed and he’s jumping the shit out of me. I’m sore now. I’m dry. He won’t stop. Now I’m full on sobbing…I though fuck this. Yelled I need to go pee and managed to go downstairs. I have it 30ish minutes and then went back up and crawled to bed. I cried myself to sleep.

He heard me and his only response to me was “I didn’t actually get it in your ass so what’s the matter” AN: If you infact said no. he raped you and you need to report it. This is the 2 nd time. HL: The justice system is fucked up. No one listens to me about my kids, what makes this different. I’ll just add it to my other list of broken things in my life…. I told you, I feel better. AN: How about calling the mccan house [1] ? Clearly things are not livable anymore. Tell him in writing he has 14 days to move out.

And no more bed sharing Include how he raped you in the message HL: I see them on Thursday Cross-Examination [ 136 ] One of the theories of the defence was that HL started her relationship with YD as early as January 2021 and that she fabricated these allegations in order to have PC removed from her home by the police so that she could take up with YD. The opening questions in cross-examination commenced with this theme. [ 137 ] Earlier in-chief, HL told Crown counsel that she did not tell YD about her living arrangements with PC when she and YD started communicating in January 2021.

Defence counsel suggested that the real reason that she did not disclose her living arrangements with PC to YD was because she and YD had actually started dating. “We were just friends and my living arrangements were nobody’s business”, HL stated. [ 138 ] Defence counsel then asked HL about the interview that she gave the police. In that interview, she told the police that during the August 31 incident, she had vaginal sex with PC prior to the anal intercourse. When this was put to her, HL responded, “I don’t remember if I said that.

It is possible.” Defence counsel probed further, asking, “Why would it be possible that you said in your testimony here that there was no vaginal sex on August 31?” HL replied, “I don’t have an answer for that.” [ 139 ] When the portion of her interview with the police was played in court, it was clear that HL did tell the police that there had been vaginal intercourse during the August incident. HL then responded, “I know that there was vaginal sex but it was not consensual vaginal sex.” [ 140 ] “I just went with it so it was over.

I never said “no” to the vaginal but I also did not say yes.”, HL added. [ 141 ] HL agreed with the defence counsel’s suggestion that non-consensual vaginal intercourse was a “pretty important detail to leave out” of her statement to the police. “Possibly”, she said. Defence counsel then suggested that it was possible that it “didn’t happen.” “It wasn’t something I remembered”, HL stated. [ 142 ] Defence counsel then asked HL about the issue of lubrication. In-chief, HL’s evidence with respect to the August incident is that PC used lubrication.

In her statement to the police, HL stated that PC was “unlubricated.” HL answered “At the time I spoke with Constable Holland, I felt that if I were to disclose that lubrication was used that it would not have been a sexual assault. I was not comfortable telling Constable Holland about the lubrication. To this defence counsel countered, “you not only did not disclose it, but you told Constable Holland that you went in unlubricated?” HL agreed. [ 143 ] Defence counsel suggested that by characterizing the encounter as “unlubricated” it sounded more painful and more brutal. HL disagreed. “I still feel the same.

Just because they use lubrication does not make it any better. I didn’t disclose something because I was afraid.”

[ 144 ] Defence counsel suggested that if HL believed that if she disclosed lubrication, Cst. Holland would not have seen it as a sexual assault. HL agreed. Defence counsel then asked, “Why did you feel differently when you gave your testimony?” HL stated, “I was more comfortable.

I knew it was not something I could keep out.” [ 145 ] Defence counsel continued, “The reason that there are these differences is because these events did not happen?” “That is incorrect.”, HL stated. “This is a fabrication?, asked defence counsel. “That would be wrong.”, HL replied. [ 146 ] Defence counsel then put to HL another difference between her evidence in-chief and her statement to the police. In court, HL testified that the vaginal penetration was momentary. PC realized that he was penetrating her vaginally and he removed himself and penetrated her anally.

In her statement, HL told the police that the vaginal penetration lasted three minutes. [ 147 ] When she was asked to explain this difference, HL said, “He didn’t immediately get it in. Three minutes might have been a little far off. I thought for a bit to get him off. In that moment I was not telling time as to how long it took to get in. Three minutes felt like a long time.” [ 148 ] It was clear that when HL gave her statement to the police, she told the officer that the vaginal intercourse was consensual.

In- chief, she agreed that she did not say either yes or no. [ 149 ] Defence counsel asked, “If the reason why you told Cst. Holland that PC was unlubricated was to drive the point home that this was a sexual assault, why would you have described the vaginal intercourse as consensual?” HL replied, “When you are in a moment where you know what is about to happen, time stops and you don't think about anything else in that moment. When I am describing what is going on I am trying not to feel like I am not the worst person in the world. I don't want to feel like some sick victim.

Would he have believed me if I would have said that it was a quick in and out or if there was lubrication. There are so many things going through your mind when you tell someone you have been raped.” At this point HL became upset and had to leave the courtroom to regain her composure. [ 150 ] Defence counsel asked HL why she told AN about the lubricant. HL indicated that she was comfortable describing this with AN. Defence counsel then asked HL why she did not describe the vaginal intercourse to AN.

HL stated, “I did not deem it as relevant.” [ 151 ] She did not see any significance at all to the different versions. She agreed that what she described in court was the way that it took place. [ 152 ] HL agreed that she didn’t describe “a vaginal in and out” in her testimony in-chief. She could not remember why she did not describe it. She said, “At the time, I never thought of it.”. [ 153 ] HL agreed that when she spoke to the police at the police station, her statement was under oath. She stated that she believed that this was a different scenario from when a person appears in court.

She stated that although the oath was the same, it was “different” from being “in an unstable mind in a police station” to “being before a judge and delivering your information.” [ 154 ] Defence counsel suggested to HL that she perjured herself when she spoke with the police. HL disagreed. “Oh, I would not call it perjuring.

I left information out but I did not lie about specific details.” HL then agreed with defence counsel’s suggestion that she told the police that there was no lubrication when in fact there was. [ 155 ] Defence counsel also reminded HL that in her evidence in-chief she left out the detail of the vaginal interaction during the August 31 incident. “It didn’t come to mind.

I forgot to bring it up.”, HL stated. [ 156 ] Defence counsel suggested to HL that the reason she felt the need to take liberties with certain details insofar as to how the incidents happened was to persuade the police even more that they were not consensual. “That’s incorrect”, HL stated, “I didn’t think he would believe me. It was just information that I was uncomfortable sharing, not because I wanted to make it look worse.

At that point it is already bad.” [ 157 ] Defence counsel continued, “Another reason is because you were unable to keep your story straight?” HL replied, “I am also human.” [ 158 ] With respect to the March incident, HL agreed with the suggestion that there was vaginal sex initially, then there was anal sex and then there was more vaginal sex after the anal sex. She agreed that the anal sex and the second episode of vaginal sex was not consensual. She disagreed that the first episode of vaginal sex was consensual. “I didn’t say yes or no.”, she said. “I had said “no” from the very beginning”, she added.

She agreed that PC was not successful in penetrating her anally during the March incident. Her reference in the text messages to PC “plunging away” was a reference to one of the instances of vaginal sex. [ 159 ] Defence counsel then played part of HL’s interview with the police where she stated that the vaginal intercourse was consensual. As the Crown pointed out when they objected to the part of the interview that was being played and asked that other parts be played “for context”, it was clear that she did not initially consent. [ 160 ] I agree with the Crown.

In the statement, she told the officer that PC asked, “Do you want to have a sex?” She told him, “No, I'm really tired.” She then told the officer, “I thought he was going to give up. He started kissing my neck. I was like whatever. Then we had vaginal sex and he tried to stick it in my anal again. I had just finished my menstrual cycle so now I feel uncomfortable I started panicking like have an anxiety attack. I remembered August. I got worked up.” PC stated, “No no no this won't take long. I promise I will be really gentle.” She went on, “He didn't actually penetrate my bum. I was very sore.

He was very rough during sex after wards. He started penetrating my vagina after following me to the sink. I said “[P] I'm really sore.” [ 161 ] Defence counsel asked HL why she felt she had to “stretch the truth” or “alter certain facts to seem more believable” when she went to the police station. HL replied, “It is embarrassing walking into a police station to tell someone about two incidents that should never have happened. I gave what I thought was relevant and important to show as to how I felt at that specific moment. I gave what I

was comfortable giving at the time, speaking with a male officer.” She did not ask to be interviewed by a female officer. “I did not know that was an option.” She clarified that she was not uncomfortable speaking to a male officer per se but she was uncomfortable describing certain things. [ 162 ] Defence suggested that HL did not seem uncomfortable during her police interview. “I was very uncomfortable”, she retorted. [ 163 ] With respect to injuries, HL agreed that she did not seek medical attentio

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