ONTARIO COURT OF JUSTICE
CITATION: R. v. A.M.W., 2018 ONCJ 213
DATE: 2018·03·27
COURT FILE No.: Newmarket 15-06243
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
AMW
JUDGMENT
Evidence heard August 30, November 20, 21 2017, March 5, 6 2018
Delivered: March 27, 2018.
Mr. Tony Vanden Ende ......................................................................... counsel for the Crown
Ms. Saara Wilson ............................................................................. counsel for the defendant
KENKEL J.:
Introduction
1A York Region 911 operator received a call saying that a man was choking his girlfriend. There was screaming in the background. Constable Harmsen arrived to find AMW outside the house chasing after a woman with a baby in her arms. The woman had red marks on her neck. PC Harmsen took hold of AMW’s arm and told him he was under arrest. AMW is charged with assault, one count of sexual assault and one count of forcible confinement all in relation to his former girlfriend. He is charged with assault resisting arrest in relation to his struggle with the officers.
2Both parties agree that the credibility of the witnesses is the central issue. The court’s task is to assess credibility in the context of all of the evidence to determine whether the Crown has proved any of the counts alleged beyond a reasonable doubt. That assessment has been done on the whole of the evidence, the order of discussion does not necessarily reflect the process of analysis.
Sexual Assault, Forcible Confinement
3AMW testified that about a month after his romantic relationship with the complainant ended they were still sharing an apartment for financial and child care reasons. One evening he said he tied her up while she was asleep and then had anal intercourse with her without her consent. AMW explained that the complainant asked him that day to tie her up after she fell asleep. He said she didn’t wake while being bound but then he put his hand on her shoulder and she woke up. The only sexual activity was anal intercourse. He did not use any lubrication or make any other preparation. He knew that she wasn’t consenting to anal intercourse but said he mistakenly had sex with her in that location thinking it was her vagina. The complainant was fully awake but she didn’t say or do anything to let him know he had made a mistake. It was only after he finished that the complainant protested that he’d had anal sex with her and she was “obviously upset”.
4The complainant testified that after she and the accused ended their romantic relationship they continued to live in the same apartment with their son. One night she fell asleep watching a movie in the accused’s room after taking gravol. She didn’t mean to fall asleep in that room. She woke up to find her ankles were tied together. Her wrists were tied together behind her back. She was on her stomach. She said, “Please stop” “Please don’t do this” to AMW but he said to her “don’t struggle”. He held her down and had anal intercourse with her. It was painful as she’d never done that before. It was not something she was interested in and she’d told AMW that many times. Prior to this incident she had not had sex with AMW for two months. Once he was done she told him, “That was wrong and you raped me”.
5In cross-examination it was suggested to the complainant that she fabricated the rape complaint and the later assault complaint to get out of a lease. The complainant’s denial was credible as she did not break the lease but continued to live in the apartment after the accused’s arrest until she could no longer afford to do so. The allegation of recent fabrication of the rape complaint is also contradicted by the accused’s statement to police where he told the officer that the complainant told others that he’d raped her just after the incident.
6When AMW was asked in cross-examination about the mechanics of having intercourse with a woman bound at the ankles and lying flat on her stomach, where he said he thought he entered her vagina, he explained that he is “well-endowed so it wouldn’t be far for him to reach” through to her vagina. He said that it “went in easy” unlike the last times they’d had anal sex so he thought he was in her vagina.
7In cross-examination, AMW was asked if the complainant ever consented to anal sex in the past. He said she lied to the court about never being interested in having anal sex. He added that they had tried it one or two times in the past but they’d never managed to have complete anal sex as he couldn’t successfully get his penis into her. He said she stopped him as it was not comfortable. When asked how it felt for him he said it was so long ago he would not remember.
8In further questioning his description of one or two prior attempts expanded and changed. He added that it was actually the complainant who was the one leading those attempts. He explained that on “most of those occasions I wasn’t even the one trying to do it, it was her guiding everything. I would lay there with her on top of me.” He didn’t recall but estimated that the last time she had tried to have anal sex with him was two and a half to three years ago. When pressed about the inconsistencies in his accounts he testified that it had been 3 to 4 years since he had anal sex. Later in cross-examination his description of prior attempts expanded again. He argued with the Crown insisting he’d just said earlier that there was the possibility of 5 or 6 prior attempts.
9In cross-examination AMW was asked why he didn’t mention anything about these prior attempts with anal intercourse to the officer when he made a statement after arrest. He replied that he was too embarrassed to discuss it. When it was pointed out that he had not been too embarrassed to discuss that topic with the officer and in fact gave a completely different version of events he was unable to explain the discrepancy, referring only to “anxiety” during what the video shows was an interview where the accused was very talkative.
10AMW admitted during his interview with police that, “I wasn’t exactly looking at what I was doing” when he entered the complainant to have sex. He knew the complainant was not consenting to having anal intercourse, he knew he had to be particularly careful in that regard as they were no longer in a romantic relationship, yet he had anal intercourse with her according to him because he didn’t pay any attention to what he was doing.
11AMW was argumentative with the Crown and at times appeared to try to control the cross-examination. His evidence was inconsistent on many important points. He added unnecessary details such as his accusation that the complainant was promiscuous in an apparent attempt to cast doubt on her credibility. He invented details including speculation about “extra (anal) mucus” to explain how it could be possible to engage in anal intercourse without any preparation or lubrication, without the complainant’s consent and without any physical difficulty. His description of the act as being without any pain or objection from the complainant is highly unlikely and contrary to the credible evidence of the complainant. His story is illogical in many places including his claim that the complainant said nothing during the non-consensual act, yet immediately after he was done suddenly protested and was upset. His evidence that this was a planned event, but the complainant told friends afterwards that he’d raped her just because she “didn’t have fun with it” wasn’t logical or credible.
12When pressed about the many inconsistencies in his testimony AMW offered various excuses including anxiety. However, he was plainly not intimidated by the Crown or the trial process and was able to provide full explanations when he chose to. AMW’s testimony about prior attempts at anal intercourse with the complainant led by her was internally inconsistent and constantly changing. It was also inconsistent with his own statement to police that he’d, “No, never ever ever had anal sex before.” (Statement p.46) “That was the first time I’d actually had anal sex, I didn’t notice the difference.” (Statement p.46) Later in his statement he confirmed the complainant’s evidence – that she never wanted to have anal sex with him. His present claim that he was too anxious and embarrassed to discuss the topic during his statement is directly contradicted by the many statements he did make to the officer on that point.
13It’s not plain that the accused’s version of events provides any defence, but in the context of all of the evidence I find I must reject his testimony on this point. He was not a credible witness. His confused and shifting evidence as to the complainant’s interest in anal sex and prior attempts led by her in that regard is contrary to his original statements on that point to the police and plainly a fabrication. His account of the incident was illogical, incredible and inconsistent with the credible evidence of the complainant.
14The complainant’s account of the incident was logical and consistent with the state of their relationship at that point. She never had interest in or consented to anal sex which is consistent with the accused’s original statement to police. That’s why the accused tied her up while she was asleep to accomplish his purpose. Her description of the sexual act as a painful one is credible in the circumstances where the accused admitted he made no preparation and used no aids to ensure her comfort. It’s logical that she would protest the painful non-consensual act as she described and that he would have to confine her to complete his intended act. The fact that she was upset afterwards as admitted by the accused is consistent with the circumstances of the act. The central point of her testimony is admitted by the accused – that she was subjected to anal intercourse without her consent. When challenged in cross-examination about why she continued to live with the accused afterwards, she explained that she was afraid she’d lose custody of her son. AMW referred to the fact that his mother was a probation officer in Durham Region to try to intimidate her in that regard. The complainant’s testimony on this point was credible given that the accused did the same thing with the police officer after his arrest. The in-car video records him trying to intimidate an officer by telling the officer his mother was a “probation manager”. He also suggested the officer had been “on probation with her”. The suggestion that the complainant’s account was a recent fabrication to gain advantage in child custody proceedings is contradicted by the whole of the evidence including the accused’s own admissions. I find the complaint’s testimony was logical, internally consistent, consistent with the external circumstances and credible on the whole of the evidence.
15Considering all of the evidence, I am unable to find any credible evidence that reasonably could leave a doubt on these charges.
Assault
16Long after their breakup, the complainant and AMW continued to live together for financial reasons and to share parenting responsibilities. One day the accused became upset after he returned home from overnight work to find that the complainant and their son weren’t there. She was coming back from “Kids at Sea”, an indoor playground where she’d taken their son, the accused’s friend JE and his daughter. There was an argument as she was 10 minutes late, “and I wasn’t allowed to be 10 minutes late”. AMW was angry but she refused to argue. She picked up their 2 year old son, tried to distract him and ignored AMW.
17The complainant testified that the accused walked towards his bedroom then turned around with a “really scary” look on his face. He put his hands out and asked to hold their son but his hands were shaking and he was “very angry”. She told him he had to calm down first. He then wrapped his arms around the son’s stomach to try and take him away from her. She testified that there was no chance she would release the child to someone “that angry”. AMW tried to pull the child away from her and she “dead weighted” or dropped to the ground. He started choking her with both hands around her neck saying “give me my child”. She was terrified and the choking hurt. She screamed for help when he repositioned his hands. She thought that AMW was going to kill her. AMW’s friend who had been outside came to the door and said he’d called 911. Once JE had announced that the police were coming she was able to get away. She went to a neighbour’s house but the accused followed her. The first officer arrived and she went behind him to keep the officer between AMW and her son. She saw the accused arrested and saw him struggle with the officer resisting the arrest. When AMW got on top of the officer she pulled him off.
18AMW’s friend and former co-worker JE testified for the Crown. He was a reluctant witness but he confirmed he was outside when AMW struggled with the complainant. He heard a loud, high pitched scream “like someone was being hurt”. The voice was screaming for help. He went inside and saw AMW on top of the complainant. In examination-in-chief he said he didn’t recall details of the struggle, but his 911 call to the police was played. In that call he told the 911 operator that AMW was choking the complainant. JE agreed that the 911 audio record was accurate. Having heard the call he explained he told the 911 operator that AMW was choking the complainant because that’s what he thought AMW was doing based on what he saw. He confirmed that what he told the 911 operator was the truth. JE was shown a photograph of marks on the complainant’s neck and he testified that the marks in the photograph accurately represent the marks on her neck he saw on the date of the incident. He confirmed that she did not have those marks when they arrived at the address. In cross-examination he testified that he also saw red marks on the child on his sides in the rib cage area.
19PC Harmsen was the first officer on scene. He arrived to see the accused chasing after the complainant. He saw marks on the complainant’s neck. Detective Sgt. (DS) Woodcock assisted. He saw injuries to the complainant including abrasions on her chest and throat. He also saw red marks on the child’s upper chest area. He notified the Children’s Aid Society about the marks observed and the incident. He identified Exhibit #9 as a photograph of the complainant showing the injury he had observed. Constable Sheridan spoke with the complainant after the incident. He saw what looked like a handprint around her neck.
20AMW testified that after a late night he woke up at 12:15 p.m. and the complainant and their son weren’t home. He wanted to spend time with his son before he went to work. They arrived minutes later at 12:30. The complainant dropped the child off then left returning at 2:30 p.m. He asked her where she’d been and she didn’t explain. That got him “a little upset” so he walked to his room. He walked through a baby gate which startled their son and the son started crying. The complainant accused him of hitting their child and she took him up and held him. AMW testified that he put his arms around his son too, not to take but just so that he would “feel loved”. He said the complainant tightened her grip for no reason even though he wasn’t trying to take the child and that pinned his arms against her torso. He was unable to move them. She jerked him and the baby around, then for no apparent reason she “dead weighted” and fell to the ground. She pulled him on top of her until he straddled her. He did not strike or choke her. After they got up she was “hysterical” but AMW says he calmly asked to see his son as he thought he wouldn’t be seeing him for a while given that the police were coming.
21AMW’s account was illogical and internally contradictory. In examination-in-chief he testified that the complainant picked up their son to comfort him as he was crying because a baby gate had fallen. In cross-examination he stated the real reason the complainant picked up the child was “to get on my nerves”. His testimony that he put his arms around the child during an argument while the child was being held by the complainant just so the child could feel loved made no sense and was not credible. His evidence that the complainant was so strong she could hold the child, pin the accused to her, pull him down and then pull him on top of her was not credible. AMW’s evidence was contradicted by the credible evidence of the complainant. His evidence was inconsistent with the credible evidence of his friend JE, the photographic evidence and the evidence of the three officers who testified on this point. The credible evidence at trial shows that AMW was very angry and aggressive at the time of the struggle with his ex-girlfriend. His present recollection is plainly unreliable given his state of mind at the time. AMW’s evidence with respect to this incident was neither reliable nor credible. It could not reasonably be given any weight nor could it reasonably leave a doubt on this count.
22The complainant’s evidence as to the assault was credible and consistent with the evidence of JE and the police officers. It was also consistent with the photographs taken. Her description of the accused’s very angry demeanor is consistent with the evidence of the officers and the police car video. The officers were acting in a neutral and professional capacity when they arrived in response to the 911 call. Their detailed evidence was credible and their observations were consistent with the events as described by the complainant. I accept the complainant’s evidence. On the whole of the evidence, I can find no credible evidence that could reasonably leave a doubt with respect to the assault.
Assault Resist Arrest
23The defence concedes that the accused unlawfully resisted arrest after they responded to the 911 call, but submits that the accused did not use any force or assault any officer while doing so. The defence submits that the accused should be convicted of an included offence of “resisting arrest”. I infer that the defence meant the s.129(a) offence which prohibits a person from resisting or wilfully obstructing an officer in the execution of his duty. The Crown submits that the credible evidence at trial including the police car video proves the accused forcibly resisted and assaulted the officers who were trying to place him under arrest.
24AMW testified that after his struggle with the complainant he knew that the police were coming. Even though he hadn’t done anything wrong, he didn’t think he would be seeing his son for a long time. He walked up to the first officer who arrived and said he would gladly cooperate with him but he wanted to phone his mother and hold his son first. The officer grabbed him by the wrist and tried to place him under arrest. AMW testified that he backed away until pinned against his house. The officer put him in a headlock and forced him to the ground. In examination-in-chief he testified that he put the officer in a “technical headlock” when trying to escape. In cross-examination he demonstrated how he tried to escape and he agreed that his actions did not involve any headlock, technical or otherwise. While the officer held him on the ground his ex-girlfriend bit his back. Other officers joined in and one even threatened to use a Taser on him but he was not resisting. It was the officer’s fault he couldn’t move as he was being pinned down. He couldn’t explain his inability to move to the officer as the officer had him in a choke hold. AMW testified that he did not strike, punch, kick or slap any officer. He wasn’t angry but was upset in the police car and he now regrets his behaviour that was recorded on the police car video. He explained he was overwhelmed with anxiety as the reason for his resistance and behaviour.
25Constable Harmsen was acting in a professional capacity at the time. His recollection was aided by contemporaneous notes. His testimony was logical, internally consistent and consistent with the credible evidence of the complainant. His evidence was also consistent with the evidence of the other officers and the police cruiser video. PC Harmsen’s video was not activated on arrival, but that was reasonably explained by the situation when he arrived and the need for him to exit immediately and intervene to protect the complainant and the child. In any event, it’s not certain PC Harmsen’s cruiser video would have captured the struggle on the lawn given its position.
26The credible evidence at trial shows AMW was in a rage when Constable Harmsen arrived at his home in response to the 911 call. His evidence that he calmly walked up to the officer and offered to cooperate if the officer allowed his two demands is plainly not true as the officer found him chasing after the complainant while she held their child in her arms. Both parties agree that PC Harmsen had reasonable grounds to arrest AMW. The officer placed the accused under arrest and took his arm but the accused resisted telling the officer he would not comply until he held his child. The accused’s right arm pulled back and his hand made a fist but held down at his side. His whole body was tense. Constable Harmsen told AMW that he was under arrest and he would not be holding his child. AMW argued and repeated his demand. AMW made a further demand in a loud agitated voice to call his mother. PC Harmsen explained to him that he needed to comply with the arrest.
27PC Harmsen pushed the accused against the cruiser in an effort to try to get control of the accused’s hands which he held behind his back. The accused continued to resist by spinning away and holding his hands behind his back. There was a struggle which moved away from the car towards to the house and the grass area in front. PC Harmsen repeatedly told the accused to stop resisting. When the accused took out a phone the officer became concerned for his safety and called for backup. AMW was able to get away from the officer several times. Eventually they ended with the officer holding the accused in a headlock and the accused holding the officer in a headlock as they wrestled. The accused’s grip was tight enough that the officer thought he could be choked. Constable Harmsen didn’t see how he was suddenly freed, but he noted the complainant was nearby at the time screaming to the accused to get off the officer.
28The officer’s uncertainty about how he came to be freed is resolved by the complainant’s evidence and the photographs of a bite mark on the accused’s back entered by the defence. The accused testified that he was bit by the complainant while the officer pinned him to the ground. That testimony made no sense – an officer would have to move aside while pinning the accused to the ground to allow the complainant to bite AMW. The complainant testified that she intervened to pull the accused off of the officer. She didn’t remember biting the accused at that point but the whole of the evidence including the photos entered by the defence and one of the cruiser videos with her in close proximity to the officer at this point shows that she bit the accused and that distraction caused AMW to lose his grip on the officer.
29The accused was taken to the ground but continued to refuse to permit his hands to be cuffed. He struggled even after other officers arrived. DS Woodcock threatened to deploy a Taser but the accused continued to struggle and the officer chose not to use the device. To explain this part of his resistance, the accused testified that the officers pinned him in such a way that he was unable to move his hands. To explain why he didn’t tell them that, he testified that PC Harmsen had him in a “choke hold”.
30AMW’s evidence that he was held in a choke hold by PC Harmsen and was strangled by the officer is inconsistent with the credible evidence of the officers. There was no reason for PC Harmsen to put the accused in a choke hold and the evidence of the struggle to that point shows no such aggressive action on the part of the officer. In cross-examination it was never suggested to PC Harmsen that he choked the accused. No such suggestion was made to DS Woodcock who was involved in that part of the struggle or to PC Sheridan who arrived at that time. The accused’s evidence that he was choked by PC Harmsen is neither credible nor reliable in the context of all of the evidence. The credible evidence shows that AMW struggled with two officers trying to keep from being handcuffed until his hands were forced out from underneath him.
31AMW continued to struggle with the officers on the way to the police car and while being put in the police car. As shown in the cruiser video, as he was being placed in the car he continuously kicked out at the officers. The defence submission that the cruiser video shows only some kind of random leg movement is plainly inconsistent with the context, the cruiser video and the credible evidence of the officers. It’s also inconsistent with the accused’s statements at the time. While kicking out at the officers he said, “You’re a fuckin piece of shit” to one officer showing he was still in a highly agitated state. The accused’s evidence that the officers threw him into the police car head first and smashed his head into the floor is contradicted by the cruiser video. The difficulty entering the police car was generated solely by the accused.
32The cruiser video shows that after arrest the accused’s anger continued. Even after he was alone in the car he screamed at the officers and his ex-girlfriend. He blamed her for the situation he created. He directed the police to open the cruiser window. When they didn’t immediately comply with that demand he repeatedly banged his head into the window. He yelled out, “Hey you bald piece of shit, you fucking cocksucker.” He told PC Harmsen that his mother was “better than a lawyer” she was a probation officer. He said the police would likely be familiar with his mother and that PC Harmsen probably had been supervised on probation by her. He referred to his mother’s authority and position in an attempt to intimidate the officer, in the same way that the complainant described in a different context during their relationship.
33AMW was controlling even after arrest. He continued making demands in the police car. He even tried to direct the route that the officer would take to the police station saying the officer’s route was “stupid”. The officer spoke to the AMW in a calm voice despite the accused’s rants. By the time they had reached the station the officer had been able to calm the accused sufficiently that he agreed to step out of the police car without further resistance.
34The credible evidence of the officers, the complainant, and the cruiser video all show the accused was not simply anxious that day as he described but was in an enraged state. The officers were professional and calm throughout but the accused behaved in an aggressive and highly agitated manner even after being placed in the police car. He was angry before the police arrived but even their intervention did not cause a change in his behaviour.
35The accused’s testimony that he put the officer in a “technical headlock” and then later his demonstration with further testimony showing no headlock was internally inconsistent and inconsistent with the credible evidence of the officer. The accused’s account of the struggle and his arrest was inconsistent with the credible evidence of the officers who were professional throughout. I find the accused’s evidence incredible and unreliable given his highly agitated state of mind that day. The officers were calm, acting in a professional capacity and their evidence is internally consistent, consistent with the video evidence and generally consistent with the evidence of the complainant. Their evidence was reliable and credible in that context. The complainant’s belief that the accused swung fists at the officer was not corroborated by PC Harmsen, but the officer did confirm that the accused swung open hands and pushed him which may account for her observation. No witness had a completely accurate memory of the dynamic struggle, but the whole of the credible evidence shows the accused actively resisted arrest throughout.
36Both parties agree that the PC Harmsen was acting in the lawful execution of his duty in making the arrest. The accused did not throw punches and his kicks did not land, but he actively and aggressively resisted the officers. The officers did not use any strikes or kicks in subduing the accused, but given the accused’s actions they had to use reasonable force to compel him to comply. There’s no credible evidence that could reasonably leave a doubt on this count. The Crown has proved beyond a reasonable doubt that the accused’s physical resistance to the arrest included several acts of assault on PC Harmsen as alleged.
Conclusion
37Considering the evidence as a whole, I can find no credible evidence that reasonably could leave a doubt on any of the counts. The Crown has proved counts 1, 2, 4 and 5 beyond a reasonable doubt and there will be findings of guilt on those charges. Count 3 was dismissed on March 6, 2018 at the invitation of the Crown.
Delivered: March 27, 2018
Justice Joseph F. Kenkel