R. v. R.L., 2013 ONSC 1247

CITATION : R. v. R.L., 2013 ONSC 1247 COURT FILE NO.: 1603/11 DATE: 2013-02-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) Cynthia Nadler ) ) - and - ) ) ) ) R.L. ) ) ) Frederick J. Shanahan, for the Accused ) Accused ) ) ) ) ) HEARD: Nov, 27, 28, 29, 30, Dec. 3, 17, 20, 2012, Feb. 13, 2013 REASONS FOR JUDGMENT Pursuant to S. 486(3) of the Criminal Code of Canada , a non publication and non-broadcast order has been made by The Honourable Justice Ria Tzimas. E.R. Tzimas, J. Introduction

[ 1 ] R.L. is charged with one count of assault and two counts of sexual assault against his wife, L.S., contrary to sections 266 and 271 respectively of the Criminal Code of Canada . The Crown alleges that the assault took place on April 30, 2009 and that the sexual assaults occurred on January 31 and October 10, 2010. The alleged incidents were reported to the police in early January 2011 and R.L. was charged shortly thereafter. R.L. denied all three allegations and pleaded not guilty to them. Background [ 2 ] R.L. and L.S. met at a party in July 1998. They dated for a year and were engaged in July 1999.

On August 11, 2001 they were married. In the years that followed, R.L. and L.S. had a very happy life. Initially, they lived in a one-bedroom apartment. Then, with the financial assistance of L.S.’s father, they purchased their first home. Eventually they sold that house and upgraded to the home on A.D. where the three incidents are said to have taken place. [ 3 ] By all accounts, the house at A.D. was beautiful and a great place to start a family. It was also located in a neighbourhood that proved to have neighbours who were especially, if not unusually, friendly.

Both R.L. and L.S. indicated that they had an open-door policy with a number of their neighbours. This is especially significant because particular individuals from the neighbourhood came to figure prominently in the events leading up to at least a couple of the alleged incidents. [ 4 ] For two years following their marriage, L.S. tried to get pregnant without success. Consultations with a gynaecologist and then fertility treatments were also unsuccessful. R.L. and L.S. then decided to adopt a child. The adoption process was very involved and required a tremendous commitment by the couple.

Eventually, they were matched with a young boy, M., who was six years old. M. was introduced to R.L. and L.S. in late December of 2008. He moved in with the couple in February 2009 and his adoption was finalized in March 2009. [ 5 ] After almost eight years of marriage and an adult lifestyle without children, R.L. and L.S. had to adjust to the addition of a six year old boy. Both R.L. and L.S. were thrilled to finally be parents. R.L. described M.’s arrival at their home as “the happiest day of our life”. He also said, “We got to make a difference”. L.S.’s enthusiasm with the adoption was equally palpable.

Both these parents love their little boy. They embraced M with infinite affection. They registered him into as many age-appropriate activities as they could imagine, they showered him with gifts, and they shared him with their family and friends through various celebrations. [ 6 ] But also as parents, R.L. and L.S. had to contend, almost immediately, with child discipline and behavioural management issues that were previously unknown issues and which caused the couple some stress. [ 7 ] In the big picture, things were going well for this family.

So much so that with the finalizing of M’s adoption, in March 2010, R.L. and L.S. began to explore the possibility of adopting another child to make their family complete. L.S. was said to wish for a baby girl so that her son would have a sister.

Although that process was not concluded, by the summer of 2010 preparations to go through the kind of vetting process that adoptive parents go through before they are matched with a child were well underway and included the preparation of a nursery. [ 8 ] Against what appeared to be a happy family situation, on the evidence before the court, it is difficult to pinpoint when this relationship began to crack and when this family began to fall apart. The first incident occurred soon after M’s arrival and against the backdrop of new and stressful parental demands.

The second alleged incident was nested among a number of celebrations, vacations, and outward representations and expressions of fulfillment, especially by L.S. [ 9 ] Matters took a dramatic turn in and around the 2010 Thanksgiving weekend with the third incident said to occur on the Friday before Thanksgiving weekend. Very shortly after that weekend what surfaced was L.S.’s developing friendship with C.F who was living in the immediate neighbourhood. R.L. ultimately left the matrimonial home on November 11, 2010.

He signed a separation agreement, prepared by L.S. on November 19, 2010. [ 10 ] The one issue that became a serious source of contention between the couple was the subject of custody and access of their son. Eventually, R.L. retained counsel to assist him with the matter. In response, L.S. tried to obtain an order for sole custody and a restraining order against R.L. She was unsuccessful. Then, on January 3, 2011, L.S. went to the police to report M.’s mistreatment at the hands of R.L.

She returned to the police station within the hour of her first report, together with C.F., and reported four sexual assaults by R.L. on her. R.L. was brought in for questioning on January 4, 2011 and was charged with one incident of assault and two incidents of sexual assault. Charge No. 1: Assault on L.S. on or about April 30, 2009

a) L.S.’s Evidence [ 11 ] The first charge relates to the alleged assault of L.S. by R.L. L.S. testified that difficulties concerning her relationship with R.L. began to develop soon after M. came to live with them. She said that she started to have a life around her son and the immediate community. R.L., she said, chose not to be involved with their new son and the community. R.L. was not happy that he no longer had L.S.’s undivided attention. In addition, she said that they were facing financial stresses.

L.S. could not remember the precise date of the event but she knew it took place and that it was around the end of April of 2009. Nor could she remember the nature of the disagreement. [ 12 ] She said, however, that she remembered putting M. to bed. Then she went into the bedroom where R.L. was laying on the bed. At trial L.S. testified that R.L. was angry with her because he was not getting her attention anymore. In her testimony at the preliminary inquiry L.S. testified that R.L. was not angry.

As she tried to leave the room, R.L. got up from the bed and grabbed her by her wrists and pushed her up against the bedroom wall. The distance between the bed and the wall was between one and two feet. Both she and R.L., (neither of whom are particularly petite), stood between the bed and the wall before she was pushed against the wall. L.S. said that R.L.

said something close to her face, inches away, but she did not remember what that was. M.’s room was on the other side of the wall. The pushing against the wall caused such a loud noise that it woke M. up and he started to cry. L.S. left the bedroom to attend to M. R.L. was said to then slide down the wall and started to cry. L.S. did not have any bruising or other injuries from this incident. [ 13 ] L.S. said that she was terrified and could not believe what had just happened.

She vehemently denied on cross-examination that the source of the disagreement between her and R.L. was a behavioural meltdown between herself and M. She also denied that what R.L. was doing was trying to calm her down. Instead she said that they had so many stakeholders supporting their adoption efforts, she could not believe that R.L. could get so upset. All she could do was to begin to withdraw from her relationship with R.L. [ 14 ] With respect to being pushed up against the wall, L.S. said that the bang was so loud it woke M. up.

The bang became such a persisting nightmare for M. that eventually he had to be moved to another bedroom. L.S. did not disclose in her evidence that the change in bedrooms was for the purposes of preparing a nursery for a second possible adoption that she and R.L. were pursuing. L.S. was not asked about this discrepancy. However, the testimony of R.L. and two other witnesses offered a very different explanation for M.’s transfer to a different bedroom several months following the incident. [ 15 ] L.S. said she had a discussion with R.L. about the incident two days later.

She said that she told him that his behaviour was wrong, that she loved him, but that she was also scared and that she could not have this kind of behaviour. In response, she said that he blew her off and that he was not prepared to have a discussion. She felt that the communication was not mutual. R.L. was imposing and dominant. She also came to believe that R.L. was no longer committed to their life together and to M.

L.S. said that she was “emotionally invested in M.” but “emotionally dissolved” with R.L. [ 16 ] More generally, she said that, there was friction between R.L. and M., M. was learning to be aggressive from R.L.’s aggressive behaviour, R.L. was not connecting with M., M. reacted to the tension in the home, and R.L. and M. were “like two alpha males”. In short, L.S. seemed to be blaming R.L. for M.’s behavioural problems.

b) R.L.’s Evidence [ 17 ] R.L.’s description of the incident had significant differences. He testified that, on the evening of the incident, he came home from work. The three of them had dinner together, they cleaned up together, and around 7:30 p.m. M. went up to bed with L.S. R.L. went up to his bedroom and lay down. All of sudden he heard a door slamming and other noises. L.S. came into their bedroom yelling at R.L. about why he was not getting involved, that he was being a bad father and that M. was crying in the other room. He said that L.S. “was letting me have it”.

R.L. testified that he stood up and both he and L.S. were standing between the bed and the bedroom wall.

Like L.S., he too estimated the space to be about two feet between the bed and the wall. [ 18 ] In his statement to the police, on January 4, 2011, R.L. said at page 12: …and she was actually-, that situation were in our bedroom and she was um, had disciplined our son and I thought it was very harsh the way she disciplined our son so we were having a heated argument she was coming after me and I just grabbed her and I said, and I put her against the wall and I said “L” that’s enough we need to cool down and we’re new parents and that was it.

Then on page 62, R.L. says: …I just said “L” calm down and then went like that and we walked out and had a cigarette we talked it out.

So this is how, we need a parent together… And on page 67, R.L. says: …I mean it’s, it’s, it’s a year and a half ago but I remember that cause she-, we were having-, I, I was just restraining her from, from-, she was coming at me cause she was getting- aggressive with me she was aggressive with our son, she was being aggressive with me and I said “L” calm down and, and I you know what I mean like I, I wasn’t… [ 19 ] At trial in his testimony in chief, R.L. said that he placed his hands on L.S.’s arms held L.S. by the arms and rubbed up and down to calm her down.

On cross-examination R.L.’s testimony regarding the wall was inconclusive. He said that his statement to the police was not accurate. L.S. stood between R.L. and the wall, within a width of two feet. R.L. wavered between L.S. being at the wall and L.S. stepping back into the wall. He described his hold on L.S. as rubbing her arms. But he also gestured the movement when he testified showing that as he held L.S. he moved his hands up and down as a way of calming L.S. down. [ 20 ] On all three descriptions R.L. was consistent in his testimony that he was trying to calm the situation.

R.L. felt he was successful because he explained that L.S. did calm down, that they hugged and that L.S. then went downstairs to have a smoke. R.L. then went to

M.’s room to speak to him about his behaviour and to explain how it was wrong to take a swing at his mother. He put M. to bed and he joined L.S. for a smoke. In the weeks that followed, all three attended counselling and M. also had some therapy. Finally, R.L. was unequivocal that he did not, at any time, slump down to cry. [ 21 ] With respect to his relationship with M., R.L.’s evidence suggested a very fulsome and fulfilling connection with his son.

Although he acknowledged that during the weekdays he was at work and therefore spent less time with M., on weekends and on holidays, life revolved around M. and M.’s activities. R.L. said that both he and L.S. took M. to his activities. The images R.L. evoked in his description of these outings were of two enthusiastic and caring parents, experiencing parenthood on the fast track. Charge No.2: Sexual Assault by R.L. on L.S. in January 2010

a) Evidence of L.S. [ 22 ] L.S. testified that one of their neighbours at A.D., who has since died, was S.L. They had very good relations with this neighbour. They visited regularly at each other’s homes. S.L. had a pool at his home. Since L.S. was on her parental leave over the summer months of 2009, S.L. invited her to use the pool with M. during the day when he was not at home. L.S. did so. She also had children and friends from the neighbourhood join them for swims. [ 23 ] In January of 2010, S.L. required some help with a job application and a resume.

Given L.S.’s experience with human resources and office management issues, she was uniquely placed to provide that assistance. L.S. explained that she had to go over to S.L.’s home to use his computer to fill out a very specific template, as opposed to S.L. coming over to L.S.’s house to get help. L.S. went over at about 7:30 p.m. J.C., another neighbour, also came over for a smoke. Shortly afterwards, R.L. also came over. He left M. sleeping at home. According to L.S., R.L. seemed fine, but he was pacing back and forth. She felt that R.L. should be back at home with M.

L.S. said that, as a parent with a child who was sleeping, R.L. had nothing to do or did not know what to do with himself. He went back to the house but returned a second time. L.S. said that she asked him again if everything was ok and whether he wanted her to come back to the house but R.L. said everything was fine and he returned home. [ 24 ] L.S. said that she was at S.L.’s home for not more than half an hour. When she returned to her house, R.L. was waiting right behind the front entrance. She said that she could tell from R.L.’s face that he was not happy. She asked R.L. what was wrong.

She could not understand R.L.’s reaction. He knew S.L. She said that he started going on about S.L. and the fact that she would rather be with S.L. than with him. He was not happy and he was feeling betrayed. He then said that he wanted her to prove that she had not been with S.L. To satisfy himself he proceeded to push his hands into her pants, he touched her and he penetrated her vagina with his fingers. She said that she pushed back and told him, “You’ve got to be kidding”. Right there and then, L.S. said that she “dissolved the relationship”.

R.L. was no longer the person that she had married. [ 25 ] But the evening did not end there. L.S. said that she went to her bedroom upstairs. She changed into her pyjamas and she got into bed. Soon, R.L. also came to bed. He said he was sorry. He also said that he did not want to lose her and that he cared for her. L.S. told R.L. that she did not want to talk to him and that she wanted to have a good night’s sleep. She said that she felt that if they could rest, they would be able to approach the incident with a clearer mind in the morning. Instead, he tried to encourage her to be sexual.

When she resisted, he asked her if it was because of S.L. When she said no, he asked her to prove it. She responded that she did not want to barter, and that if they did not have love and respect, then they could not have sex. [ 26 ] According to L.S., R.L. became more aggressive. He kept pushing and trying to kiss her. She pushed back. He started getting angry and got on top of her. At that point, she said that she lost control. Nothing that she was saying was being respected by R.L. She could not remember many other details after that point.

She said that before he came on top of her she had her back turned away from him and her legs crossed. She tried to fight back but she ultimately gave up. Instead, he penetrated her and they had vaginal intercourse. L.S. could not remember if R.L. ejaculated, or whether he had a condom. She did remember that after the act he left the room, she put her clothes back on and went to sleep. [ 27 ] The next morning, he was in bed next to her. They got up and slipped into their usual routines with their son.

A few days later, they tried to have a conversation about the incident but L.S. said that she felt “she was completely out of the relationship” and she needed to find a way out of the marriage. L.S. explained that the complicating factor in all this was M.’s adoption.

She was concerned that, if it became known that the couple was having marital difficulties, the adoption might not be finalized and that M. would be taken away from them and sent back to foster care. [ 28 ] In the months that followed, L.S. said that she was “surviving”, that they had constant arguments, but that she wanted to make it all work to be able to keep M.

In contrast to the description of survival, L.S. confirmed that between the date of the incident and August 2010: • M.’s adoption was finalized in March 2010; • L.S. and R.L. initiated, (thought they did not conclude), the process for the adoption of a second child; • The family celebrated M.’s First Communion with a catered celebration at home; • The family had several visits to cottages with friends; • They attended their nephew’s baptism; • The gave a substantial interview to the Toronto Star on adoption; • They presented at adoption conferences; and • They went on a family trip to Disney in August 2010.

L.S. did say that she found two outings, one in August to Sudbury around the time of their wedding anniversary, and another around a friend’s wedding, to be stressful and that she did not enjoy them. [ 29 ] On balance, pictures that were filed with the court reflected happy times and celebrations. L.S.’s experiences went well beyond just “surviving”. If there were financial difficulties, these activities did not reflect such a concern.

Similarly, L.S.’s Facebook entries, from February 27, 2009 until August 2010, which were voluntary and gratuitous, projected stability and happiness. [ 30 ] One glaring example of L.S.’s state of mind and how she projected it to the public related to her joyous declaration in August 2010 that she was finally a “L”. Until then, she had kept her maiden name. With M.’s adoption completed, she went ahead and changed her name. When the change was made, L.S. declared this to the world on her Facebook page. The entry read: “Finally a R.L.”.

On cross- examination, L.S. explained the name change as a matter of convenience for travel and passport purposes. She felt that she should have the same last name as her son. While that explanation, in the abstract, makes sense, if the change was being made in the context of “surviving”, it is not clear why the change would be announced in such a celebratory way. Why was there any need to say anything at all? Similarly, at the beginning of trial, L.S. was clear that in light of her separation from R.L. she had gone back to her maiden name.

But if the original concern was to maintain uniformity in the name for her son’s sake to avoid travel hassles, that would still be a concern, with or without the separation.

b) Evidence of R.L. [ 31 ] R.L. flat out denied that such an incident occurred. R.L. spoke very highly of S.L. and said he was “a great neighbour”. R.L. said that S.L. was in their house and they were in his all the time. There were really no boundaries with their neighbours, including S.L. The doors were wide open. There was no knocking at their door, though R.L. also stated that, when he went over to the neighbours, he would knock. R.L. was very aware of S.L.’s application and in fact, took some interest in it because he thought that he might be interested to submit a similar one.

R.L. remembered going over one evening around the time the application was being completed. He had a smoke and then he said he went to bed. But he also said that there was no incident that stood out in any way. As far as he was concerned, the alleged incident just did not happen. He said that he was not that kind of person to react in the way that L.S. described. [ 32 ] With respect to the events that occurred from January 2010 until the end of August of 2010, R.L. was in substantial agreement with the outline provided by L.S.

He said that it was unbelievable what “this little guy did to our lives!” R.L. said that he made them smile. He also said with palpable enthusiasm and conviction that, “the three of us did great things”; “we had a great marriage”. [ 33 ] One subject that R.L. amplified significantly related to the steps underway to adopt a second child into the family. R.L. said that, as far as he was concerned, their family was strong. They always wanted a second child. To use what he said was “L.’s terminology”, “we wanted the perfect family”.

Some of the immediate steps that were taken were to move R.L.’s office from upstairs to downstairs. M. was moved to another bedroom and the bedroom adjacent to R.L.’s and L.S.’s bedroom was to become the nursery. On the signing of M.’s final adoption papers, in March 2010, R.L. said that both he and L.S. asked their adoption representative, D.M. to move forward to locate a second child. They told her that this time they wanted a baby girl. They spoke to other adoption agencies and they began to update their home study to account for M. Friends were also spoken to about updating references.

R.L. also added that, given how fast things moved with M.’s adoption process, they wanted to have the nursery set up before their trip to Disney in August 2010. R.L. also said that they wanted to go to Disney before the next adoption came around because travel would be more difficult with two children. [ 34 ] Of the two outings in late August that L.S. said were stressful, R.L. had no such recollection. For the August trip to Sudbury, he recalled L.S. getting worked up over M. spilling salt in the car. For their friends’ wedding, R.L. remembered very vividly that M. danced the night away.

He did not recall anything unpleasant or stressful. [ 35 ] On the name change, R.L. described it as an incredible event. But he also made it clear that this was something that L.S. decided to do on her own initiative. “L. decided to be a “L”” was how R.L. explained her decision.

c) Other Witnesses [ 36 ] There were no witnesses to either the assault of April 2009 or the sexual assault of January 2010. However, there were witnesses to the events that were taking place before and after the incidents. That evidence is highly relevant to evaluating the state of mind and the credibility of both L.S. and R.L. This is particularly so in relation to the possibility of proceeding with a second adoption when contrasted to L.S.’s testimony that she was emotionally dissolved and withdrawn and that after the January incident she was done. [ 37 ] Especially telling was Y.D.’s testimony.

Y.D. was M.’s foster mom. She indicated that she had special affection for M. She was pleased that R.L. and L.S. were smart and successful individuals who would make great parents. She explained how delighted she and her husband were to attend at M.’s final adoption ceremony at the courthouse in Brampton. But she also said that she was surprised to hear L.S. asking D.M.: “Are you getting my little girl?” and D.M. confirming that she was “getting on it”. Y.D. said that, although it was none of her business, she was surprised that R.L. and L.S. would want another child so quickly after M.’s adoption.

She was very aware of the challenges that the couple faced with their transition to parenthood, including the “hitting incident” by M. Her preference would have been for L.S. and R.L. to focus their attention on M. Then, in the summer of 2010, the “L” family visited Y.D. and her husband at their boat by the Toronto Islands. On that occasion, M. told Y.D. that he was getting a baby sister.

Y.D. then said that L.S. told her about the move of M.’s bedroom to prepare the nursery for a baby girl. [ 38 ] Another witness who also testified on the subject of a possible second adoption was M.B., a common-law sister-in-law to L.S. She said that L.S. and R.L. wanted a baby girl, that L.S. wanted “a million-dollar family”, and that L.S. also wished to have the experience of raising a baby. M.B. told her about a baby girl about to be born in early September 2010 who was expected to be apprehended by the Children’s Aid Society as soon as she was born.

M.B. provided L.S. with that information although she also expressed the concern that, in the future, L.S. might run into the biological mother and it could create tension. M.B. also knew about M.’s move from his bedroom to another room for the purposes of preparing a nursery. She confirmed that this adoption prospect did not ultimately go through.

Charge No. 3: Sexual Assault on October 10, 2010 by R.L. on L.S.

a) Evidence of L.S. [ 39 ] As a preliminary observation, L.S. offered three different descriptions of the incident on three different occasions: her report to the police, her testimony at the preliminary inquiry, and her testimony at trial. The background facts and the specific events leading up to the incident were essentially common to all three versions. The description of the incident, its timing, and the immediate aftermath has significant differences. [ 40 ] L.S. testified that, as part of her empowerment, she wanted to have a family cell phone transferred into her name.

This, she said, would help her build credit in her name since everything to that date was in R.L.’s name. In her view, her relationship with R.L. was toxic to her and to her son. She wanted to take charge and change her life, beginning with the phone. [ 41 ] L.S., R.L. and M. went over to a Rogers outlet to make this change. When at the store, L.S. testified that R.L. took over the conversation. She got upset and they left the store. She said that whatever they were trying to do did not happen, that her voice never got heard.

She said that she yelled at R.L., that he remained calm and collected, and that he loved it when she would lose control. They left in the same car. On cross-examination, L.S. denied that what was going on was an upgrading of her phone to a blackberry and that there was some trouble with the transferring of the data. She denied that she became frustrated with an employee who did not seem to know how to go about the transfer.

Finally, she denied that what R.L. was trying to do was to calm her down. [ 42 ] When they returned home, L.S. said that she put M. to bed and R.L. went over to Tim Hortons to bring back some coffees. L.S. said that she felt defeated by the experience at Rogers. She noticed that her neighbours, J.C. and her husband, R.C. were putting up Halloween decorations. L.S. went outside where she was also joined by two other neighbours, C.F. and S.L. She sat on the curb between C.F. and S.L. When R.L. pulled into the driveway, he saw the neighbours out there.

He handed L.S. the coffee and then he went over to R.C. to see what he was putting up for Halloween. L.S., together with C.F., S.L. and J.C. were consuming alcohol. L.S. testified that C.F. was encouraging her to be a rebel. R.L. did not participate in the drinking. She said that he sat on the porch to their house, wearing her housecoat and watching their activities. L.S. said that she was scared and very upset. J.C. could see that she was upset and, at some point in the evening, the two of them took a walk in the neighbourhood so that they could have a private chat.

During that conversation, L.S. testified that J.C. told her she had options. [ 43 ] When L.S. returned home from her walk, she said that R.L. was waiting for her in the hall. She said that he was livid. He was not yelling but he was not happy. He was mad that she spent so much time sitting outside and he blamed the community for their problems.

On cross-examination, L.S. agreed that R.L. raised specific concerns about C.F., that C.F. was having too much influence on her, and that he asked her if there was anything going on between her and C.F. [ 44 ] L.S. said that she was mad and she pulled out a bottle of wine and started drinking. She said that she told R.L. that she was not going to go upstairs. She drank half a bottle in the kitchen. Then she began to make her way to the bedroom.

At that point, L.S. testified that R.L. intercepted her and told her that he wanted to have sex right by the staircase, in front of the window so that the neighbours could see that they had a great relationship. [ 45 ] There were two staircases up to the bedroom that L.S. could take. She took the ones opposite to the window and told R.L. that he was ridiculous and psychotic. L.S. testified that she then went to her bedroom and started getting ready for bed. She said that she thought R.L. understood that it was over. Instead, in a few minutes he walked into the room and threw her on the bed.

She managed to put her hands on his shoulder and push him away. L.S. said he made some kind of a threat although she could not remember exactly what it was. She did remember telling R.L. that she had options and that whatever else she said it was enough for him to go away. [ 46 ] Once again, she thought that their exchange was over. She was anxious to get some sleep because on the following day she would be going on a bike ride with a bunch of guys, including the three neighbours, S.L., C.F. and R.C. The bike ride was known as the Fall Colours and was an annual event that she had enjoyed in the past.

On cross-examination, L.S. agreed that R.L. did not raise objections about this bike ride even though it involved travelling with motorcycles over a fair distance and the trip had an element of danger. [ 47 ] L.S. testified at trial that she remembered falling asleep. Then, at some point, R.L. woke her up. He had his hand on her vagina. She said that she did not want to be touched. She was looking forward to the Fall Colours Ride and she told R.L. to “f-off”. R.L. was not happy with that reaction. She began to cry. She pushed him away but he became aggressive and over-powered her. He was over her.

He penetrated her and had vaginal intercourse. She said she was very scared and in a panic. She said it felt like it lasted forever. She did not know if R.L. ejaculated but she did say that on the following day there was spotting in her underwear. When he was done, R.L. left the room. [ 48 ] On the next morning, L.S. went on the Fall Colours Bike Ride. R.L. went out and got her coffee and cigarettes before she left on the ride. He then took care of M. for the day.

In the days that followed, there were two Thanksgiving celebrations, one at R.L.’s mother’s house and the other at R.L. and L.S.’s house. [ 49 ] L.S.s’ testimony at the preliminary inquiry concerning the particulars of the sexual act by R.L. varied significantly. On that occasion, she said that she went upstairs after she came into the house. She had an exchange with R.L. over C.F. and, consistent with the testimony at trial, she indicated that R.L. asked her to have sex by the window.

However, rather than staying in the kitchen to drink, as she testified at the trial, L.S. said that she went up to her room and at some later point she went back downstairs and ended up having half a bottle of wine. The non-consensual sex took place in the bedroom before the drinking. L.S. indicated that R.L. came into the bedroom and forced himself onto her along the side of the bed, on her side, with her lying on the bed and him standing. She said that eventually she threw him off.

She did not know if he ejaculated but she had some stuff roll out the next day. [ 50 ] In her report to the police, the timing of the sexual act was not as described at the preliminary inquiry. There was also no

mention of any drinking. Nor was there any mention of an immediate sexual act when she came into the house. Rather, she said that she fell asleep, only to be woken up at some point by R.L. who forced himself on her. [ 51 ] Unique to the testimony at trial was the reference to the spotting on the following day. This was not mentioned on either of the two previous occasions, that is, the police report or at the preliminary inquiry. The drinking of the half-bottle was also said to occur before L.S. went to her room, as opposed to returning back down to the kitchen at some point in time.

When confronted with these variations on cross-examination, L.S.’s attempts at a clarification were unconvincing. She attributed much of her confusion and difficulties with her memory to her drinking and just to being overwhelmed by the traumatic experience.

Without meaning to suggest that if such an incident occurred it would not be traumatic for a complainant, I am still confronted with what ultimately amounts to a pastiche of versions as to what might have happened on the evening of October 10, 2010. [ 52 ] In the days and weeks that followed, L.S. confirmed that she had extensive exchanges, primarily using her blackberry, with C.F. R.L., at some point soon after October 10, bought L.S. a purple Harley jacket, one that she wore even to the trial. [ 53 ] There were some further family celebrations in the few weeks that followed.

But on November 11, 2010, R.L. left the home. L.S. said she changed the locks immediately and that she froze the bank accounts without notice to R.L. L.S. also confirmed that the day after he left, when R.L. discovered he had no money for gasoline, she gave him some money, she bought him a mattress, she had it delivered to the friend’s house where he was staying, and she prepared the separation agreement. She had R.L. sign the agreement on November 17, 2010. L.S. also indicated that she considered going to a shelter because she was scared.

The reason for such a direction was unclear, particularly since L.S.’s testimony on these few weeks revealed somebody who took full control of her situation and had no reason to feel unsafe. [ 54 ] L.S. described the specific date when the agreement was signed as her day of freedom. She had gained back her self-confidence. That night, her neighbours, including C.F., came over to her house. L.S. tried to suggest that these were friends coming over to check on a single mother with a child alone at home.

However, her own description and sense of exhilaration even as she testified on this particular point made it evident that this was a celebration. [ 55 ] L.S.’s report to the police did not take place until early January, 2011. L.S. testified that although they had signed the separation agreement, there was an outstanding issue with M.’s custody. The details of those difficulties are not relevant to this trial. What is relevant is that the report to the police about R.L.’s assaults took place once L.S. concluded that she could not obtain a court order for sole custody of M.

When L.S. did report the alleged incidents, L.S. testified that C.F. was with her. L.S. also indicated that C.F. was the first person to mention to the police that she was sexually assaulted. L.S. seemed to suggest that had she not gone ahead with the complaint, C.F. would have done so. At trial, L.S. said that C.F. was concerned about her safety.

b) Evidence of R.L. [ 56 ] R.L. confirmed that L.S. wanted to have a new phone. She already had her own phone, her own bill and her own password. However, she wanted to have a blackberry. She purchased a red blackberry online. R.L.’s information was needed because the Rogers box was in his name as part of a Rogers family plan. L.S. ordered the phone on a Tuesday and it was delivered on the Friday of the incident. L.S. was very excited to receive her red phone. After dinner, the three of them went over to a Rogers outlet to transfer the date from L.S.’s previous phone to the new blackberry.

The store was very busy. They waited for almost 45 minutes before getting the attention of a Rogers representative and then the representative did not know how to transfer the data. L.S. became very irritated and started blaming R.L. for the Rogers representative’s incompetence. R.L. testified that he tried to reassure L.S. that he would take the phone the next day to another Rogers outlet and that he would see to it that the data was properly transferred. That did not appease L.S. She remained very focused on the problem.

R.L. took the family home and went back out to get coffees from Tim Hortons. [ 57 ] When he returned from Tim Hortons he found L.S. outside together with the neighbours, J.C., R.C., C.F. and S.L. By now it was sometime between 10:30 p.m. and 11:00 p.m. R.C. showed R.L. the Halloween decorations he had put up. R.L. hung out for a while but by midnight he decided to go to bed. He noticed that L.S. was having some wine. He did not see any rye or whiskey bottle. On cross- examination, he was asked about whether he was troubled or upset that his wife was hanging outside with the neighbours.

He said it did not bother him because it was not unusual for the neighbours to hang out together. He did not have any suspicions concerning C.F. because he knew the guy. He said that C.F. had worked with his brother before he moved into the neighbourhood. He also said that he did not have an issue with L.S. staying outside past midnight. [ 58 ] At around 4:00 in the morning, L.S. got up to go to the bathroom. R.L. heard L.S. get up and he woke up as well. They started to talk about the bike ride. Then R.L. testified that they started having sexual intercourse.

He said that it was dark in the room and that he could not see her very well. She was on top of him. However, as they progressed, he heard L.S. sniffling. Realizing that she was crying, he withdrew and did not complete intercourse. He tried to comfort L.S. She said she was worried about the ride. He told her not to worry, that he would get her cigarettes and a coffee in the morning. She fell asleep on his chest. A little later, R.L. said he got up to get the coffee and the cigarettes.

He also went over to R.C.’s house to ask if he could borrow an appropriate bike jacket for L.S. because she did not have one. [ 59 ] According to R.L., L.S. went off on the ride in the morning as planned. Then he and M. had a very full day of activities that included taking M. to his Kung-Fu classes, swimming, and skating. As promised, R.L. also took L.S.’s phone to another Rogers and had the data transferred successfully. [ 60 ] On the Sunday morning, R.L. admitted on cross-examination that L.S. confronted him with her concerns over their finances.

He agreed that there were some financial issues but he interpreted L.S.’s comments about being unhappy to be in relation to their finances. When challenged about not realizing that what L.S. was telling him was that their marriage was done, R.L. explained that he did not believe the marriage was in trouble. In his mind, the solution to L.S.’s stress over the finances lay with finding a way to address their finances. It was just about money and the problems could be addressed.

R.L. also testified that although they had a substantial mortgage and a line of credit, they had also built up equity in excess of $200,000.00. At the age of 33 years, R.L. felt that this was a positive accomplishment.

[61] Gradually, R.L. came to realize that there was, if nothing else, an intense friendship developing between L.S. and C.F. L.S. wasspending several hours in the evenings with C.F. R.L. testified that, in the weeks that followed the October incident, he confronted L.S.about what was going on. L.S. told him that C.F. needed some help with troubles that he was having with his daughter. R.L. alsobecame aware of the extensive texting going on between L.S. and C.F.

Ironically perhaps, the very phone that triggered thedisagreement leading up to the incident, and that R.L. fixed, was being used by L.S. to facilitate her communications with C.F. But it wasnot until R.L.’s brother told him to “open my eyes”, that L.S. was having an affair that he realized that his marriage was over. Eventhen, R.L. said that he was in denial. He said “L.S. was my best friend”. He got her the jacket. He hoped that maybe L.S. would ask C.F.to leave. When R.L. realized that there was no such prospect, he left of his own accord.

In the immediate aftermath, R.L. said that he wasnot surprised to hear that the locks were changed because so many people had keys to their house. He was, however, stunned to find theaccounts frozen and to be left without any money.

c) Other witnesses [62] As with the other two incidents, there were no witnesses to this incident. However, Y.D., M.B., and a third witness, M.C., whowas a former high school friend of L.S.’s, all testified that L.S. made them very aware of her developing friendship with C.F. Each of thewitnesses offered details of what L.S. told them about C.F. For the purposes of this judgment, it is not necessary to review that evidenceat any length. To do so might be misinterpreted as passing judgment on L.S.’s conduct.

L.S.’s conduct and choices are not relevant in andof themselves to the determination of R.L’s guilt or innocence. But the coincidence of L.S.’s developing relationship with C.F., L.S.’spersistent denial of any developing friendship, as well as the events following immediately after the incident, is relevant to the credibilityof both R.L. and L.S. as well as the motives underpinning their evidence. [63] Y.D. testified that L.S. described her new friend as her “biker dude”. M.B. testified that L.S. confided in here that she was seeinga man on the street.

L.S.’s friend, M.C. testified that she only became aware of C.F. on the night following the signing of the separationagreement when she observed L.S.’s affectionate interaction with C.F. Analysis [64] This case turns almost exclusively on the credibility of the two leading witnesses, L.S., the complainant, and R.L., the accused.There is no independent piece of evidence with respect to any of the three incidents.

The three witnesses that testified about events thatwere occurring at various points in the relevant timeline of the alleged incidents provided relevant evidence that was crucial tounderstand the very divergent narratives in the evidence of L.S. and R.L. General Principles [65] “Credibility is a central issue in many criminal cases”: R. v. Osolin, (SCC), [1993] 4 S.C.R. 595, at para. 55 perLamer C.J. It is open to a court to believe all, none or some of a witness’ evidence: R. v. Francois, (SCC), [1994] 2S.C.R. 827, at para. 14; D.R. et al. v.

The Queen (1996), (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L’Heureux-Dube J.(dissenting in the result), at p.318; R v. M.R., 2010 ONCA 285, at para. 6; R v. Hunter, [2000] O.J. No. 4089 (C.A.)(QL), at para. 5; R v.Abdullah, (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4-5. It follows that a trier of fact is entitled to acceptparts of a witness’ evidence and reject other parts. The trier of fact may also accord different weight to different parts of the evidence thatthe trier of fact has accepted: R v. Howe, (ON CA), [2005] O.J.

No. 39 (C.A.)(QL), at para.44. [66] That said, a determination of guilt or innocence must not devolve into a credibility contest between two witnesses, as it woulderode the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D).v. The Queen (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p.409; Avetsyan v.

The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87. [67] With these general principles in mind, credibility is to be assessed on the basis of the following three steps, as first laid out in W.(D.), (para. 28): First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [68] When working through the process of assessing credibility, it is crucial to note that the mere disbelief of the accused’s evidencewill not satisfy the burden of proof upon the Crown: see W. (D.), at p. 409. To use the disbelief of the accused’s evidence as positiveproof of guilt would be an error: R v. Dore (2004), (ON CA), 189 C.C.C. (3d) 526 (Ont.

C.A.), at p. 527 (leave toappeal refused, [2004] S.C.C.A. No. 517; R v. H. (S.), [2001] O.J. No. 118 (C.A.)(QL), at paras. 4-6. The court must be satisfied on thetotality of the evidence that there is no reasonable doubt as to the accused’s guilt. [69] Furthermore, where there are significant inconsistencies or contradictions within the principal Crown witness’ testimony, or

when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilthas been established: R. v. S.W. (1994), (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal refused [1994]S.C.C.A. No. 290; R v. Oziel), [[1997] O.J. No. 1185 (C.A.) (QL), at paras. 8-9; R v. Norman (1993). (ON CA), 87C.C.C. (3d) 153(Ont. C.A.), at pp. 172-4. [70] Assessment of a witness’ credibility includes evaluation of his or her demeanour as testimony is provided to the trier(

s) of fact inthe courtroom – this includes “non-verbal cues” as well as “body language, eyes, tone of voice, and the manner” of speaking, bearing inmind that the subjective perception of demeanour may not be reliable: R v. N.S. (2010), 2010 ONCA 670 , 102 O.R. (3d) 161(C.A.), at paras. 55, 57(affirmed, [2012] SCC 72; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193 , 99 O.R.(3d) 1 (C.A.), at para. 66; R v. Smith, 2010 ONCA 229, at para. 11; R v. Levert (2001), (ON CA), 159 C.C.C. (3d) 71(Ont.

C.A.), at pp. 80-2. [71] The defence may, if it chooses to, raise the issue of a delayed complaint as counting against the veracity of the complainant’saccount of an alleged incident. Such delay by the complainant is contextual and will vary from case to case depending upon the trier offact’s assessment of the evidence relevant to the failure to make a contemporaneous complaint: The Queen v. D. (D). (2000), 2000 SCC43 , 148 C.C.C. (3d) 41 (S.C.C.), at pp. 64-7; R v.

M. (P.S.) (1993), (ON CA), 77 C.C.C. (3d) 402 (Ont.C.A.), at pp. 408-409. [72] Finally, the existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v.K.G.B. (1993), (SCC), 79 C.C.C. (3d) 257 (S.C.C.), at p. 300, per Lamer C.J.C.; R v. Greer, 2009 ONCA 505 at para.5; R. v. Prasad, [2007] A.J. No. 139 (C.A.)(QL), at paras. 2-8; K.(A.), at p. 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.)(QL), atparas. 4-5.

Although the burden of production and persuasion lies with the prosecution and the accused need not prove a motive tofabricate on the part of the principal Crown witness, evidence of the witness’ motive to lie may be relevant. This consideration may alsobe relevant to the accused qua witness: R. v. Laboucan, 2010 SCC 12, at paras. 12, 15, 22; R. v. Murray (1997), (ONCA), 99 O.A.C. 103 (C.A.), at paras. 11-14. Findings [73] I have considered each of the counts separately and I have considered the evidence for each count separately. My conclusions oneach count are outlined below.

Charge 1: Assault in April 2009 [74] The first count against R.L. is for assault. The elements of assault are:

i) That R.L. intentionally applied force; ii) That L.S. did not consent to the force that R.L. intentionally applied; and iii) That R.L. knew that L.S. did not consent to the force that R.L. applied. [75] Beginning with the incident in April, the unfolding of the particular evening, as R.L. described it, was convincing. M. had beenliving with his new parents for about six weeks. M. was not a newborn, but a six year old. R.L. and L.S. were new parents. The skills thatparents gradually develop over the years, R.L. and L.S. had to learn almost immediately.

Virtually overnight, they went from an adultlifestyle to one where their personal needs took a back seat to M.’s needs. They were bound to encounter stresses and challenges. [76] I accept R.L.’s evidence that the triggering event that led to the disagreement between R.L. and L.S. was M. hitting L.S.Flustered and likely shocked by what had happened, L.S. put M. in his bedroom. She then came into the bedroom and was very upset atwhat had occurred. I am prepared to accept that, if as R.L. was lying on the bed, seemingly oblivious to what had just occurred, thatwould have made L.S. all that more agitated.

She was letting R.L. “have it” because while she was trying to deal with M., R.L., in hereyes, was lying calmly in the other room. That would explain her comments to R.L., as described by R.L., that it was all his fault andthat he was not being a good dad. [77] Having heard R.L.’s testimony, having observed his overall conduct and demeanour, and having heard from three witnesses ofhow they perceived R.L.’s overall personality, I believe that, once R.L. appreciated what was going on, he wanted to calm the situation,

a) by trying to calm L.S. down; and then

b) by going over to speak to M. I also accept R.L.’s testimony that he did not agree with L.S.’sdiscipline measures towards M. and that he would look for a non-confrontational approach, such as talking or reasoning with M., asopposed to a more punishing measure like a time out.

Finally, I accept R.L.’s testimony that matters did calm down, that he had a goodchat with M. and that, ultimately, he and L.S. shared a cigarette downstairs. [78] Specifically regarding R.L.’s contact with L.S., given the developing crisis and L.S.’s reaction to the preceding altercation withM., I have reasonable doubt as to the nature of the contact.

R.L. was trying to stop a situation that seemed to be spiralling out of control.R.L.’s statement to the police that he told L.S. that they were new parents and that they needed to cool down suggests that when he heldL.S. he likely did not intend to apply any force and that in any event, his touch did not go beyond the ordinary touching that would takeplace with the implied consent found in a conjugal relationship. I rely on R. v. Lawrence, [2004] O.J. No. 3031, (C.A.)(Q.L.).

R.L.’sspecific reference to their parental obligations and adjustments as well as the specific subject of the disagreement. underscored theconjugal context. [79] In that conjugal light, even though R.L’s statement to the police spoke of grabbing her arms, his explanation at trial, more sothrough his gestures indicating the movement of his hands up and down L.S.’s arms, which L.S.’s characterized as rubbing, seemed to be

in line with the intention to calm and comfort L.S. In light of those gestures, I am left with reasonable doubt as to how R.L. touched L.S. or whether he was forceful at all. The admission by L.S. that R.L. was not angry and that she did not have any bruising gives me further doubt as to the nature of R.L’s touch. [ 80 ] In the same vein, given the positioning of R.L. and L.S. between the bed and the wall, I have reasonable doubt as to whether or not R.L. put L.S. against the wall or whether L.S. was startled by R.L.’s reaction and in an attempt to step away from R.L. she stepped back into the wall.

I do not believe L.S.’s extraordinary description that when R.L. put her against the wall, it caused such a noise that M woke up, but more dramatically, that the noise became the source of continued nightmares for M. that necessitated his move to another bedroom. When contrasted to the evidence of the room being prepared for a nursery, I have real questions as to what really happened and what motivated L.S. to advance such a complaint. More significantly, it magnifies my reasonable doubt as to R.L.’s guilt of the assault against L.S.

Charge 2: Sexual Assault of January 2010 [ 81 ] With respect to this incident, I accept R.L.’s evidence that the incident did not take place. The description of the alleged incident by L.S. is quite extraordinary. However, S.L. was a friend who was in and out of R.L.’s home all the time. More importantly, L.S. was in and out of S.L.’s home and his pool all summer long, before this alleged incident. R.L. was well aware of this arrangement. He considered S.L. a great guy.

Moreover, L.S. had spent many hours at S.L.’s home over the preceding summer months. [ 82 ] If R.L. had concerns over L.S.’s interaction with S.L., R.L. had numerous opportunities to raise them long before January 2010. It is highly unlikely that, with the kind of relationship that S.L. had with both R.L. and L.S., R.L. would react so jealously and violently over a half-hour session for the completion of a work application. [ 83 ] R.L.’s denial of the incident, which I believe, is supported by the bracketing events before and after January 2010.

Leading up to January 2010, both R.L. and L.S. testified to the occurrence of a number of celebrations. In April 2009, they celebrated M.’s birthday – three separate birthday parties. In May 2009, they attended Branching Out. The three of them, R.L., L.S. and M. cooked together and they undertook various activities together. In June, M. finished Grade 1 and he was baptized. The event was “unbelievable”. R.L. had a tremendous twinkle in his eye and an enthusiasm when he described in court that day and explained that his son did one of the readings at his baptism.

In the summer months that followed, they went camping – “tonnes of family camping trips”. [ 84 ] In August, L.S. declared on Facebook that she finally became an “L”. She changed her last name so that she would have the same last name as her husband and son. It should be noted that, in her testimony at trial, L.S. tried to minimize the change to her last name by explaining that she did it to have consistency in the passports.

But there was no reason for L.S. to make such an enthusiastic declaration on Facebook if the change was merely for administrative convenience. [ 85 ] In October 2009, R.L. and L.S. participated in presentations at a forum about adoptive parents. R.L. said that they both attended and they both spoke. In November, L.S. went on the Bikers Port Dover ride. Then there was a trip to Las Vegas for R.L. and L.S. for some rest and recreation. It was a time to rejuvenate. December followed with M.’s first Christmas and New Year’s Eve celebrations.

In January, the legal documents were completed so that the adoption could be finalized. [ 86 ] On the other side of the alleged incident, the joyful activities continued. By the accounts of both R.L. and L.S., M. was the centre of attention and the focus for virtually all of the activities. Those activities, as noted above, included the trip to Disney, M.’s first communion and a number of other celebrations.

Most notably, as much as the second adoption did not ultimately take place, and in spite of L.S.’s denial to the contrary, this family was getting the process under way for a further addition. [ 87 ] L.S. denied that this was one happy period for her. She said that the outward projections of happiness were

an act. The difficulty with that testimony is that the sum of events, their reflection in various photographs and L.S.’s own exuberant descriptions on Facebook went far beyond what would be required to project happiness. The commentary was gratuitous and voluntary. It is hard to reconcile those outward projections with a suggestion of unhappiness. Charge 3: Sexual Assault, October 10, 2010 [ 88 ] I believe R.L.’s testimony as to the events of October 10, 2010. It is difficult to know where to start when the complainant’s own version of events would shift at every turn.

The only part of R.L.’s testimony that I have trouble accepting is the extent to which he seemed to be oblivious to what was unfolding between L.S. and C.F., right under his nose. His description and explanation of the events were logical and coherent. His demeanour and explanation were calm and in a matter-of-fact style. There was no animus against C.F. Nor was there any expressed resentment with respect to either the bike ride or L.S. R.L. was not upset by the phone incident.

He knew he could get it addressed on the following day and, true to that knowledge, he took care of it while L.S. was away on her bike ride. Had R.L. become so upset by L.S.’s staying out late with the neighbours, R.L. might have simply left the phone data transfer to another day. [ 89 ] Similarly, when he found L.S. hanging out with the neighbours, R.L. did not think anything of it. He hung out with them all for a bit but ultimately he went to bed. Again, if L.S.’s conduct was upsetting to him, as suggested by L.S., he could have asked L.S. to come in. [ 90 ] L.S. was, in R.L.’s mind, his best friend.

When her getting up to go to the bathroom woke R.L., I accept that he wanted to show his affection to L.S. and that he initiated sexual intercourse. He said that he did not see her crying. Much was made of L.S.’s crying and how could he not realize that she was crying. But even L.S. admitted in her testimony at the preliminary inquiry that, in fact, R.L. did not realize that she was crying. Remarkably, as soon as R.L. realized she was upset, R.L. said he withdrew and did not complete the intercourse. Instead, he consoled L.S. and told her not to worry about the bike ride.

Later in the morning, and before leaving for the bikers’ Fall Colours, R.L. picked up coffee and cigarettes for L.S. and he even went out to borrow a biker’s jacket from the neighbour to appease what he perceived to be L.S.’s worry. [ 91 ] In contrast to R.L.’s testimony, there is no consistent complaint from L.S. to be able to assess its credibility. There were three different versions of what happened after they returned from Rogers. The first description had her being woken up. The second

description had the assault happening as soon as she came through the door. The third version was spliced into two parts: there was some aggression before she slept, which she successfully resisted. Then, the sexual assault occurred when R.L. woke her up. [ 92 ] Compounding the confusion was the developing, if not thriving, relationship with C.F. To be clear, the spotlight on this friendship is not intended to be critical of L.S.’s personal conduct. That has nothing to do with this trial.

What is relevant to the assessment of credibility and more particularly to L.S.’s motives underlying her complaints is the fact of the coincidence of L.S.’s developing friendship with C.F. with the date of this incident. That coincidence is compounded by L.S.’s inexplicable denial of the developing relationship in the face of credible evidence to the contrary by all four other witnesses. [ 93 ] In addition, L.S.’s demeanour and overall conduct during her testimony was very troubling. I accept that if the events as L.S. described them took place, they would be traumatic.

I will go further to suggest that testifying about personal relations would be very challenging for most witnesses. However, L.S.’s agitation in court increased dramatically every time she was confronted with a further variation of her complaint. Although L.S. was nervous through her testimony she generally did not exhibit any emotional difficulties as long as she felt that she was in control of the narrative. That demeanour changed profoundly when her previous statements were put to her to explain. Her answers became long-winded, incomprehensible, and in some instances turned into a rant.

At other times, she had outbursts. Perhaps the most telling of them all was her outburst that she just wanted to be left alone. She stopped loving R.L. within months of getting M., but he continued to love her. She just needed a way out. [ 94 ] In this further regard, I do find the timing of the reporting of the incidents by L.S. troubling. She did not report the incidents to the police until after she ran into difficulties with the custody of M. By her own admission, she had obviously researched everything else about her separation from R.L.

She likely did not anticipate either the subject of custody or, alternatively, had expected to succeed with her request for sole custody. When all else failed, it was time to serve one last blow to R.L. with a report to the police. [ 95 ] In contrast, R.L., true to his overall character and demeanour, tried to remain loyal to his best friend until it became abundantly clear that she no longer wanted to be married to him. He left voluntarily. But he had to draw the line with the custody of his son.

Final Disposition [ 96 ] Given the sum of my findings, my conclusions with respect to the three incidents are as follows: On Count 1, I have reasonable doubt that R.L. assaulted L.S. I find R.L. not guilty. On Count 2, I believe R.L. that he did not commit a sexual assault against L.S. in January 2010. I find R.L. not guilty. On Count 3, I believe R.L.’s testimony that he did not commit a sexual assault against L.S. I find R.L. not guilty. ___________________________ Tzimas J. Released: February 27, 2013 CITATION : R. v. R.L., 2013 ONSC 1247 COURT FILE NO.: 1603/11 DATE: 2013-02-27

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – R.L. REASONS FOR JUDGMENT Tzimas, J. Released: February 27, 2013