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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
DATE: August 9, 2023 COURT FILE No. 22-23100645 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ELDIN OMEROVIC
Before Justice Lloyd Dean May 9 and 10, 2023
S. Dundon................................................................................................................. for the Crown D. Hardy .............................................................................................................. for the Accused
JUDGMENT
Introduction
1The accused was originally charged with two counts of sexual assault contrary to s. 271 of the Criminal Code and one count of choking, suffocating, and strangling the complainant while committing a sexual assault contrary to s.272 (1) (c.1). The charge alleging choking (count 3) was amended well before the trial date to a charge of sexual assault (s.271), leaving him at the time of trial facing three counts of sexual assault. On the first of two days set aside for the trial the Crown withdrew count one, leaving counts two and three to be tried.
Summary of the evidence
2There were two witnesses called to give evidence. The complainant and the accused. The complainant was in her mid-twenties at the time of the alleged offences. The accused was also in his mid-twenties. The complainant is employed as a 911 dispatcher with the London Police Service. The accused is employed as a London Police officer. He was sworn-in sometime in 2020, after having been a cadet since 2018. Since the charges were laid in March 2020, he has been on suspension.
3The evidence both witnesses agree on is as follows. They have been friends since grade six. The friendship grew into a close friendship (best friends) over the years, as they attended the same high school and university. They took almost all the same classes while attending university. The accused would drive the complainant to and from school. They confided in one another and leaned on one another in difficult times. They were pretty much inseparable. It was not clear from either of their evidence whether they were romantically involved at all during their school years. Around the time of the allegations, they both were in or had recently been in a romantic relationship with other individuals. They both agree they had consensual sex on Aug. 17 and Sept. 8, 2021. And they both agree there was consensual kissing on Feb. 2, 2022. Where their evidence differs relates to what the accused did with his hands during the consensual sexual activities.
4Prior to the trial date the Crown brought a Seaboyer application seeking to have certain evidence related to count number one introduced at the trial, despite its intention to withdraw count one. The application centered around the Crown wanting to introduce into evidence an alleged conversation the complainant says she had with the accused after she was allegedly slapped by the accused while they were having consensual intercourse on August 17, 2021. Defence counsel, after reviewing the Crown’s application, did not oppose it. I granted the application. During her testimony, the complainant stated that during consensual intercourse on August 17, 2021, she was slapped from behind on the back of the head really hard. After the intercourse ended, she told the accused she was “not okay with it and to not do it again”. According to the complainant the accused responded by saying, “duly noted, sometimes I get carried away”. She believed the accused understood she did not want to be hit at all in the head or face. The complainant testified this was the first time she and the accused had sex.
5Count number two concerns events surrounding consensual intercourse which took place a few weeks later, on September 8th. The complainant testified she and the accused had spent a nice day together and after returning to her house they engaged in sexual intercourse in her upstairs bedroom. While in the missionary position the accused slapped her across the right side of the face, in the cheek and jaw area. She did not say anything. She does not recall how long it was into the intercourse when she was struck. She does not know if she was hit with a closed hand or open hand. She does not remember if he used his right or left hand. No words were exchanged before or after the strike. She stated she felt powerless, very small and very disrespected. She felt her trust had been broken. She believed she had set a boundary on Aug. 17th. When asked by the Crown why she did not say anything to the accused on this occasion, she testified she was taken aback, almost shocked. She did not think he was going to do it again and then it happened. As a result of the slap, she had a headache for the rest of the day and into the next day. She acknowledged the intercourse did continue after the slap. Afterwards they went downstairs and watched Netflix for about 15 minutes. The accused indicated he wasn’t feeling well and left to buy some soup and go home. During cross-examination she testified she likely gave him a hug before he left and possibly asked him when they would see each other again. They continued to see each other romantically until October or early November 2021. When asked why during cross-examination, she stated she loved him, he was her best friend.
6Regarding the Feb. 2, 2022, incident, the complainant testified the accused had asked her if he could come over. He had just broken up with his girlfriend and needed his best friend. She testified that while they were sitting on the couch watching a movie, they began to cuddle, and he subsequently lifted her chin and they started kissing. She doesn’t recall how, but at some point, she got pinned under him while they were kissing, and his hand was high on her neck just under her jaw line. She doesn’t recall which hand. His body weight was on her and it was hard to breathe at times. His legs were straddling her. She was trying to wiggle out of it because all his body weight was on her. She was asked during cross-examination why she didn’t say something. She said she was trying to breathe; he was still squeezing her neck with his hand and his lips were on hers so she couldn’t talk. She estimated his hand was on her neck for seven to ten seconds. She then was struck hard on the right side of her face. It caused ringing in her ear and her earing to fall out, although she wasn’t aware of it falling out at the time. She later realized it had fallen out and she found her earring on the couch. In cross-examination she testified the strike to her face felt like a punch. Her jaw and neck were tender as a result. As well, the ringing in her ear lasted for about a half hour. She did not sustain any long-lasting injuries. After being struck she said she looked at him and told him she did not like that and he responded by saying, “you do like that”. She testified she felt powerless, like she wasn’t being believed or being taken seriously. She acknowledged they continued to kiss after that. She was asked why. She stated she was still processing what had happened. Someone she had in her life for fifteen years, those feelings don’t just go away, she stated. During the incident she was feeling overwhelmed with emotion. She further testified they went upstairs to her bedroom afterwards and continued to kiss for a little bit. They were upstairs for fifteen minutes. There was some touching over the clothes, nothing more. She didn’t feel good. She just wanted him out of her house. She had always looked at him as her person of safety but now she didn’t want him in her house.
7During cross-examination she was asked why she went upstairs with him. She stated she was still processing what had happened. She was afraid of it escalating. She did not know what to do. Defence counsel asked her why she would go upstairs if she was afraid. She stated the accused was not just someone she met on the street. He was her best friend; someone she had discussed having children with. She denied trying to remove his pants while they were downstairs. She was further questioned why she had never mentioned to the police that the accused had his full body weight on her. She testified she was never asked. She was asked about the pressure applied to her neck and if there was squeezing. Defence counsel pressed her on why she wouldn’t mention his full body weight when describing the pressure and the squeezing. She testified she could not give him an answer, she was under a lot of stress when giving her statement. She stated she did tell the police that they did have consensual choking as part of their intercourse, but it was not consensual on that date. She rejected the possibility that her earring came out as a result of getting caught in a blanket that was on the couch. She denied noticing the earing was missing while they were upstairs and that they both looked for it upstairs. She was clear they both looked for it downstairs. She acknowledged she walked him to the door and gave him a hug before he left. She also acknowledged that he brushed the snow off her car when he left, that she texted him that day to tell him it was nice and very sweet of him and asked if he got home okay.
8Three days later, on Feb. 5th, the complainant texted the accused. She was upset that he had hit her again on Feb. 2nd despite what she had told him back in August. The text she sent to him is set out here:
“I also didn’t want to bring it up, but it really hurt me that you hit me in the face the other day when we’ve had a conversation before that I’m not okay with that. “
You know I love you to death, and that I will always be here for you but I can’t be there for you in that way because it is going to break me again.”
9The accused response to that text was:
“That’s totally understandable, was not my intention to make you feel that way, genuinely sorry”
10The complainant believes she had set a clear boundary with him back in August that she was not okay with being hit. She testified there was a lot of complexity around why she reported the incidents to the police in March 2022. She was concerned for him and his behaviour. She felt the striking during the last incident was an escalation from the previous two incidents because it occurred when they were only engaged in kissing. In making the decision to go to the police she knew it would ultimately make her grieve a friendship of someone who has been her best friend for more than half her life. She emotionally testified that going to the police has affected her mentally and physically. It has caused her to have panic attacks. She has had trouble sleeping. She has not been able to go to work. It has rocked her world. It has changed her.
11As stated earlier, the accused agrees that all three sexual encounters happened. He denies all three instances of slapping and placing his hand on her neck. He stated none of that happened.
12The accused had a different version of the conversation that occurred after the two had sex on Aug. 17th. He testified they both expressed how pleasurable it was and that the complainant went on to say she now understands why his ex-girlfriends come back to him. He denies striking her and denies any conversation took place about striking her. He testified that after that date they became more emotionally involved.
13Regarding the Sept. 8th incident, he stated they arrived at her house around 3 PM, after a trip to Norwich. The complainant wanted to have sex and he consented. His evidence was they did not go to the upstairs bedroom. They went into the guest bedroom on the main floor. He remembers it was the guest bedroom because the complainant had indicated that is where her “ex” slept. The accused testified the sex was quick, no longer than two minutes, as he ejaculated prematurely. They were in the missionary position only. He never struck her. Afterwards, they watched a movie for fifteen to twenty minutes; he told her he wasn’t feeling well, which she knew from an earlier conversation in the day. He then left.
14Regarding the Feb. 2nd incident, the accused testified he had broken up with his girlfriend. There was a bad snowstorm that day. He was at the complainant’s residence. They were sitting on the couch and at one point the complainant started straddling him and tried to undo his pants. He testified he didn’t want her to do that as he had just broken up with his girlfriend. He stated making out with the complainant was okay to do, but his boundary was sex. Presumably, meaning he didn’t want it to go any further than making out. He testified they were on the couch for maybe an hour. He never choked her or slapped her. He testified he had one foot on the hardwood floor. He was wearing socks. He indicated at one point his right hand might have been on her collarbone for a second or two. During cross-examination he stated a split second, then moments later said a second and then moments after that said a split second. During cross-exam he described the area he touched as “upper chest slash collarbone” and again denied putting his hand on her neck. He testified if he had done that he would have fallen off the couch. The accused denies any conversation took place that day about him slapping or hitting her and the complainant telling him that she does not like being hit and him responding by saying, “yes you do”. The accused testified he did ask the complainant to go upstairs because she had a record player there. They went upstairs. They kissed and made out on the bed. She made comments about him staying over but he wasn’t comfortable staying the night. While they were upstairs, she told him her earring was missing. They looked upstairs for her earring, then downstairs. He left sometime around 11 or 1130 PM.
15During direct examination, when testifying about the complainant’s text message sent to him on Feb. 5th, wherein the complainant speaks of him slapping her, the accused testified that when he read her message he responded to the latter part of the text and not the part about him slapping her. He acknowledged that he did not respond to the slapping accusation. During cross-examination, on that same issue, his evidence changed slightly, saying it was predominately to the latter part but also towards both, referring to the slapping.
The Law
16The principle of presumption of innocence and the standard of proof beyond a reasonable doubt are two of the most fundamental principles of criminal law. Other principles of criminal law are built on their foundation.
17The presumption of innocence means the accused starts the trial with a clean slate. The presumption stays with the accused throughout the case, from start to finish. It is only defeated when the Crown satisfies the trier of fact beyond a reasonable doubt of the guilt of the accused for the specific crime that is alleged. The presumption of innocence means that the accused does not have to testify, present evidence, or prove anything in the case. It is Crown counsel who must prove the guilt of the accused beyond a reasonable doubt, not the accused who must prove their innocence.
18A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. It is not enough to believe the accused is probably more likely guilty. In those circumstances I would have to find the accused not guilty because the Crown would have failed to satisfy the accused guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
19It is to be remembered that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Proof beyond a reasonable doubt is not proof beyond all doubt.
20I have said in the past, the use of the phrase “he said, she said” to describe criminal cases is, I think, somewhat improper. I think it tends to trivialize the matter. The phrase tends to be used most frequently in the context of allegations involving sexual or domestic assault. The phrase is often used when the evidence of one is in stark contrast to the evidence of the other. It implies that there is an “either/or” choice to be made. There is not. An “either/or” approach where the trier of fact chooses between competing versions – particularly based on mere preference of one over the other - must be avoided. The complainant might be telling the truth, but so might the accused be telling the truth. My job is not to make a declaration as to who is telling the truth. The issue before me is not which version of the evidence is true, but rather, on the totality of the evidence viewed as a whole, whether the Crown has met its burden – proving the accused’s guilt beyond a reasonable doubt.
21As a rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence. Different considerations arise, however, when conflicting evidence is presented to the trier of fact on an essential element and the trier of fact is required to make credibility findings with respect to that conflicting evidence.
22Where credibility is a central issue in a criminal trial, which it is in most criminal trials, there is a relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. That is where the case of R. v. W. (D.), [1991] 1 S.C.R. 742, comes into play. W. (D.) and its progeny prohibit triers of fact from treating the standard of proof as a credibility contest. The lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. And the finding of credibility on the part of the complainant is not sufficient to support a conviction where there is significant evidence which contradicts the complainant’s allegation. In assessing the credibility of any witness, including the accused, the existence of evidence that contradicts the witness is highly relevant. In the type of case that is before me, that necessarily means that the defendant’s evidence must be assessed in the context of and be weighed against the evidence of the complainant, and vice versa. Other factors are relevant as well, such as the demeanour of the witness while testifying, potential for bias, motive to lie, sincerity when testifying, for example, may come into play and influence the credibility given or attached to a witness.
23Aside from the credibility of witnesses the court also must consider the reliability of witnesses. Witnesses may be found to be credible but not reliable. For example, the passage of time, their emotional state at the time, distractions that existed at the time, their ability to observe the event clearly, are some factors which may affect the reliability of a witness who is otherwise credible.
Analysis
24I carefully listened to and observed the complainant during direct and cross examination. She did not embellish her evidence when there was opportunity to do so. Far from it. She readily acknowledged the things she could not remember or be certain about. I found her manner of testifying as being consistent with someone who took care to present as accurate a testimony as she could. I accept her evidence as both credible and reliable. But that is not the end of the matter. Acceptance of the complainant’s evidence does not automatically lead to finding the accused guilty. I must consider the accused evidence. When doing so, I must bear in mind the analysis as set in R. v. W. (D.) and its progeny. And I have done so. I have kept the burden of proof and principle of reasonable doubt firmly in mind not only when considering the accused’s evidence, but the totality of the evidence.
25While I found the complainant’s evidence to be both credible and reliable, I cannot say the same for the accused. The accused’s evidence had concerning features to it. It left me suspicious of his credibility. As stated earlier, the accused simply denies the allegations, stating they did not happen. I carefully observed him while he testified and listened to and carefully considered his evidence. I find that as it relates to the specific allegations made by the complainant regarding being slapped and choked, his evidence is neither credible nor reliable.
26Defence counsel acknowledged the complainant’s evidence as generally impressive and compelling. He submits, so was the accused. Counsel argues both their evidence is reasonably capable of being true and therefore I should be left with a reasonable doubt concerning the accused guilt. He points to the complainant not being able to identify which hand she was struck with on Sept. 8th and regarding the Feb. 2nd incident, whether it was an open hand or closed fist. While that evidence certainly must be evaluated, it is done so within the context of the circumstances of the events. The complainant not being able to identify with certainty which hand she was struck with does not disrupt my finding that she was a credible and reliable witness. With respect to whether it was with an open or closed fist the complainant demonstrated what she believed was an open hand with perhaps curled fingers. While watching her and listening to her regarding that evidence, it was clear to me that she was not one hundred percent certain. That lack of certainty, when considering the context in which the strike occurred, does not cause me concern. For the most part, her evidence was very detailed and what you would expect from someone telling the truth.
27As it relates to the accused’s evidence surrounding why he did not respond to the complainant’s allegations in her Feb. 5th text that he slapped her again, if he never slapped her why would he not respond to that specific allegation? Does it make sense to let that false allegation go without response? Defence counsel argues the bulk of the text message was about her not wanting to be hurt emotionally again, and that is what the accused was responding to. At best, counsel submits, you are simply left with a non-response. Presumably counsel is suggesting that I shouldn’t be as influenced by the lack of response as the Crown suggest. I disagree with counsel that the bulk of the message was about being hurt emotionally again. It was just as much about being hurt as a result of the accused slapping her yet again, despite him knowing she was not okay with it. If he never slapped her, why would he not respond to that specific allegation? Anyone being accused of slapping another person and it never having happened would respond to that false statement. The accused lack of a response to his long-time best friend accusing him of something he says never happened, and his explanation as to why, defies common sense. His explanation stretches credulity. I do not accept his explanation.
28Defence counsel, while acknowledging he had to be careful when commenting on how a sexual assault victim reacts, submits that it tests the boundaries of common sense that the complainant texted the accused telling him he is very sweet and nice after allegedly being choked and slapped. I don’t see it that way. The complainant texted those sentiments in response to the accused clearing the snow off her vehicle before leaving. Three days later she texted him expressing her hurt emotionally as a result of being hit in the face yet again by him. She even begins the text by stating, “I also didn’t want to bring it up, but…”. That speaks to what she described as their relationship and feelings being complex, which she described when testifying. To start her text with those words further convinces me that the complainant was not fabricating her evidence.
29Her evidence surrounding the incidents speaks to her emotions during those times. As she stated, the whole situation, referring to their relationship, was complicated, because of what they meant to each other and their history together. That evidence was powerful and had a powerful ring of truth to it. She was not shaken at all during cross-examination while testifying about the incidents. I do not accept the accused accusation, which is inferred from his denial that any striking of the complainant occurred, that the complainant fabricated three different scenarios on three different dates over a period of seven months.
30In my view, if the complainant’s allegations are a fabrication, she would have come up with a better story than that which she testified. If the complainant wanted to make up false allegations against the accused, would she come up with a version that has her saying nothing to him about slapping her on the second occasion despite what she told him during the first incident. Would she come up with a fabrication that these events took place during consensual sex and foreplay? I think not. Why wouldn’t she simply accuse him of slapping her during an argument? Why risk being scrutinized and perhaps humiliated in a public forum by having to testify about consensual intimate moments?
31The accused did not offer any evidence as to why the complainant might have gone to the police with false allegations. He is not required to do so. The point I make is that there is no evidence before the court as to the possible motive for the complainant, who was the accused best friend, to make false allegations. Again, I want to make clear, the accused has no obligation to do so. He is presumed innocent until the Crown has met their burden of proving his guilt beyond a reasonable doubt. The fact that there is no evidence before this court of a possible motive for the complainant to make false allegations is simply a factor for me to consider in determining whether the Crown has met its burden, just as it would be if there was some evidence before the court of a possible motive for fabrication.
Conclusion
32After careful consideration of the totality of the evidence, I accept the complainant's evidence and reject the evidence of the accused and I am not left with a reasonable doubt by his evidence. Nor am I left with a reasonable doubt when assessing the evidence I do accept. The totality of the evidence has left me convinced of the accused guilt. The accused will be found guilty on counts two and three.
Released on August 9, 2023.
Judge L. Dean