WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of ( a ) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or ( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) . (2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall ( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and ( b ) on application made by the victim, the prosecutor or any such witness, make the order. 486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 11 30 COURT FILE No.: Walkerton 21-1496
BETWEEN:
HIS MAJESTY THE KING
— AND —
A.L.
Before: Justice V.L. Brown
Heard on: January 20, 23, 24, June 6, 2023 with written submissions August 8 th and 22 nd , 2023
Reasons for Judgment released on: November 30, 2023
Counsel: Michelle McKay................................................................................... counsel for the Crown Paul Dhaliwal.......................................................................... counsel for the Accused A.L.
[1] The Accused is charged with the following offences pursuant to the Criminal Code of Canada: (1) Voyeurism, pursuant to s. 162(1); (2) Extortion, pursuant to 346(1.1)(b); (3) Sexual assault causing bodily harm, pursuant to s. 272(1)(c); (4) Sexual Assault, choking, pursuant to s. 272(1)(c.1) (5) Forcible Confinement, pursuant to s. 279(2); and (6) Uttering threats to cause bodily harm, pursuant to s. 264.1(1)(a). [2] It is agreed that on the morning of October 27, 2021 the Accused made 2 recordings of the complainant in his bedroom while she was putting her make up on, and one recording of her getting dressed with her breast exposed. The complainant alleges the recording was made without her knowledge or consent. [3] Shortly thereafter, It is alleged that the Accused then threatened to send the recording to the complainant’s parents as an implied threat if she broke up with him. [4] It is further alleged that on the night/morning of November 23/24, 2021 the Accused sexually assaulted the complainant, including putting his hand a round her neck so she could not breath, repeatedly punching her, and physically preventing her from leaving the room. [5] The Crown proceeded by indictment. The Accused elected to proceed before the Ontario Court of Justice, and pled not guilty to all counts. [6] The Accused admitted identification, jurisdiction, photographs evidence by police and the nurse, diagrams prepared by the nurse, the download extraction from the Accused’s phone, and the November 24, 2021 date. [7] In its submissions, the Crown invites the court to enter an acquittal to count 6, uttering threats. Indeed, the complainant did not allege any express threats, although there were times she reported being fearful. As such, the Accused is acquitted of this count. [8] The Crown led evidence from K.K. [hereinafter “the complainant”], and PC Gordon. The Defence led evidence from the Accused, A.L. [hereinafter “the Accused”]. The parties entered as Exhibit 1 the agreed statement of fact setting out information about R.K., K.K.’s roommate.
Background Facts
[9] The Accused is 27 years of age. The complainant is 32 years of age. [10] Both parties are originally from India. The Accused came to Canada as a student in December, 2015. He attended Fleming College, graduating in April 2017. He spent some time working in PEI and returned to Ontario August 11, 2021. He is currently employed at [name of company removed] and supplements his income as a driver with Uber. The Accused is a permanent resident of Canada. [11] While in India, the complainant was a nurse with 2.5-3 years experience. She arrived in Canada December 2017 as an international student. She studied for 2 years at college. When the parties met, the complainant was working at Tim Hortons, usually working the shift starting at 5AM. She is currently employed as a loss prevention supervisor. [12] At the relevant time, the Accused resided in Oshawa and the complainant resided in Port Elgin. [13] The parties met through Shaadi.com, an online dating program aimed at marriage within the east Indian community. The Accused joined the service after he returned to Ontario in August, 2021. The parties began chatting through the website and then SnapChat. After a month, they met in person on, or about, October 6, 2021 when the Accused visited the complainant in Port Elgin, at the beach. [14] They next met on or about October 11th and October 19th when the Accused visited the complainant in Port Elgin. [15] On October 26, 2021 the parties met at the Tandoori Flame restaurant in Brampton, after which the parties went to the Accused’s residence in Oshawa. The complainant spent the night. The following morning it is admitted that the Accused made 3 short recordings of the complainant while getting dressed. He sent on of the recordings to the complainant later that day. [16] The parties met again on November 8, 2021 when the Accused visited the complainant in Port Elgin at the Esso and then went to her residence. [17] On or about November 23, 2021, the Accused visited the complainant at her home in Port Elgin. There was a celebration there that evening to celebrate R.K. (the complainant’s roommate) obtaining permanent residency. The Accused, complainant and R.K. left the house to get some food and drinks, and returned to the house. Later, the complainant’s other roommate, M., arrived. [18] After that, the parties’ evidence diverges. Both parties suffered injuries as a result of a struggle. The complainant alleges a sexual assault over the course of several hours. The Accused alleges the complainant was “over drunk”, tripped on the stairs, and was otherwise assaulting him over the course of 1-2 minutes as he tried to take her to her bedroom.
K.K.’s Evidence
[19] In her examination in chief, the complainant testified that the Accused arrived around 6 or 7 PM on November 23, 2021, after her work. His visit was unplanned, and the Accused only notified her when he was already half way to her residence. She recalls a roughly 15 minute phone call with him when he was on his way. [20] In cross examination, the complainant corrected her evidence to say that she had not gone to work that day, but rather she had the day off and had gone to a grocery store to buy a cake and some groceries, and then to look at a house to rent in South Hampton. She explained that if she was coming home from somewhere it would be from work; she knew she was coming home from somewhere. She had since remembered she was not at work, that she was coming home from running errands. [21] The complainant was adamant that she was not home at 4PM, but conceded she might have been there between 5-6PM. [22] In any event, she states the Accused was at her home when she returned, and she observed the Accused smoking marijuana with her roommate, R.K. as she arrived. The complainant did not like smoking, and told him to leave, but he said he would not smoke again. [23] The complainant changed her clothes and they went out for food. The complainant was driving, the Accused was in the front passenger seat, and R.K. was in the backseat. They went to a restaurant and placed a large order for chicken nuggets. They went to the LCBO while waiting for the order to be filled. She remained in the car. [24] The complainant denied going to Walmart that evening, or purchasing the cake there. She denied going to Canadian tire, or a second trip to purchase chicken nuggets. She initially did not recall going to Pizza Hut, but she then recalled that she did purchase pizza. [25] She testified that R.K. and the Accused were drinking in the car, specifically whiskey. She denied drinking in the car. The complainant testified that they return to the house maybe 8 or 9PM – she was not sure about the time, but believed they were out for 45 minutes. [26] The complainant believed that the Accused and R.K. were smoking marijuana in her car. When she returned from picking up food, the car smelled like marijuana. [27] When they returned, her other roommate, M., was there. They cut the cake, took photos, and ate. In cross examination the complainant was not sure what time M. arrived home, but said he was not there when they arrived home and they waited 15-30 min for him to cut the cake. She did not recall the time. [28] That night, the complainant claims she drank only one small can of beer (Corona) that she poured in a glass, as she had to work in the morning for 5AM; she did not finish it. She was sober. [29] She went up to bed at approximately 930-10PM while R.K. and the Accused were still downstairs; she saw them go outside again to smoke (Marijuana). In cross examination she states that the Accused went outside twice with R.K. to smoke. At that point she told the Accused again to leave the house. [30] Once upstairs, she placed the Accused’s belongings outside the room. She went to sleep and only woke when the Accused entered the room. She told him to leave and he refused. [31] She described him as too drunk; he could barely talk, but he was walking ok. She told him to leave. He tried to touch her and kiss her. She pushed him back. He got into her bed and tried kissing her neck and lips. She tried pushing him back with her hands on his shoulders and chest, but he was too strong. She was still lying down in the bed, and he was on top of her. [32] He was kissing her and biting her on the lips. She felt suffocated and couldn’t breath. She was yelling as he tried to force her and remove her clothes. He used both hands to choke her, saying “shut up bitch”. She could not breath. He choked her for a few seconds. [33] She grabbed his glasses, breaking them (the lens came out). He punched her in the face after she broke his glasses. He punched her several times. She was trying to block him, but he made contact with her right eye area. She was yelling for someone to call police. She later testified she was not sure which eye he made contact with. [34] After he punched her, he removed her pants; he had removed her t-shirt prior to choking her. She tried grabbing her phone from the bed, and tried calling police, but he put it in his pants. She was yelling for some to call the cops. [35] He removed all of her clothing. While he was removing his clothing he made statements to the effect ‘I’ll show you who I am and what I can do’. He kissed her all over her body, except her legs. She was crying and yelling ‘please stop. I don’t want to do this’. She hit him with her hands on his head. [36] He then penetrated her vagina with his penis for 6-7 minutes. She was still struggling, and scratched his chest with her nails. She was yelling. He put his hand over her mouth. [37] She stated he put his sperm on her tummy; he did not wear a condom. She asked his why he did it. He said, ‘that’s what you deserve’. [38] She tried to grab her phone, which was now in his pants on the floor. She grabbed his phone instead, which was also in his pants pocket, and he grabbed it back. He stood in front of her, pushed her on the bed, and penetrated her again. She continued to push, slap and fight him. He ejaculated on her tummy again. [39] In cross examination the complainant agreed that during the struggle she was biting the Accused and scratching him and doing whatever she could to try and get the Accused off of her. She was yelling “R.K., please call the cops” and was banging on their shared wall. [40] She grabbed her clothes and tried to leave the room, but he pushed her backwards and she fell on the ground. This happened repeatedly. After the second attempt she hurt her left shoulder/back area. She was able to put on her t-shirt and leggings. After the third attempt, he hit her with his feet on her back. After the fourth attempt, he grabbed her hair, opened the door, and hit R.K.’s door, but no one answered. She was still crying for help. He pushed her back into her room and closed the door. [41] She told the Accused she would tell the police, and he hit her repeatedly on her head. She was fearful and told him she would not do anything. He stopped punching her. [42] The complainant estimates that the assault took place over 2.5-3 hours between 1130/12AM – 230/3AM. [43] Afterwards, the parties discussed what happened. The Accused said she broke his glasses and he couldn’t leave, and he got angry. [44] The complainant was trying to calm the Accused and reassure him she would not call police. She laid down after 330 AM and tried to sleep. The Accused was also on her bed and fell asleep. [45] The complainant got up at 430AM to go to work. The Accused returned her phone after she promised not to call police. While at work, she couldn’t eat or concentrate; her manager let her go home. Instead, the complainant went to the police station. Thereafter she went to hospital where she completed a sexual assault examination, with the exception of her vaginal area; although she recognizes the importance of sharing injuries or marks, she claims she was swollen and sore. She was scared and insecure. After the hospital, she returned to the police station. [46] The nurse took note of slight bruising to both sides of the complainant’s neck, as well as injuries around her left eye. There was a swollen purple area on the back of her head on the right side. There were 2 purple and red marks on her upper left arm, 2 on left wrist area, and 3 purple and red marks right forearm and hand. There were marks on and about the complainant’s lips on the right side with visible swelling, as well as a scratch mark. The complainant identified her right cheek as also swollen. [47] Regarding the allegation of voyeurism, the complainant testified she was unaware the recording was being taken at the time. She only became aware later when he sent them to her on SnapChat. [48] The complainant did observe the Accused point his phone towards her. She asked if he was taking a photo, and he said no. [49] The complainant reports that there was a fight between the parties that morning and she went home without saying anything. The Accused was angry and sent her the recording on SnapChat, then asked if she wanted to send it to her parents and put on the internet. She testified that she had told him they should be broke up, at which point he made the threat. [50] Although he did not have her family information or address, he had the password to her phone and could obtain it. She felt he was sort of forcing her to be in the relationship; she had to continue in the relationship so in the future she could delete the recordings. Despite a brief split, the relationship did resume shortly thereafter.
The Accused’s Evidence
[51] The parties met in Brampton on October 26, 2021 – the Accused was working there, and the complainant was in the city for a police clearance check. They met at the Tandoori Flame restaurant that evening and decided to go to the Accused’s residence in Oshawa. [52] The following morning, the Accused made 3 recordings of the complainant while she was getting ready in his bedroom. The complainant was dressed and putting make up on in the first two, which were one minute, and 30 seconds, in length. Her back was to him and she was standing in front of a narrow mirror. In the third recording, which was 5 seconds, the complainant’s breast were exposed and the Accused was recording as the complainant turned to him, which caused him to capture the image. [53] The Accused was laying on his bed, with his upper body more leaning against the wall. He was behind the complainant while making the recordings. His legs and feet can be seen in the photos. [54] He stated that he took the recording as she was doing her make up, to show her how long her hair was. The Accused agreed that he never asked permission to record the complainant. However, she was aware of what he was doing – he lets people know. She was always aware of what he was doing, and he showed it to her at the time. He stated in cross examination that when he was making the recording with her breast exposed that she actually snatched the phone from him, saw the video, and liked it; she could see he was taking a video which is why she checked his phone. She could see he was pointing his phone towards her; although her back was to him, she could see him in the mirror. She was watching him. [55] In cross examination he stated that his phone was in the air – raised up to his forehead, above his head. The Accused then stated he did not remember where the top of the phone was in relation to his eyes. However, he disagreed that the phone was on his chest in front of his face. In re-examination his evidence changed to say he was holding the phone about his tummy. A few moments later he agreed his phone was raised above his chest. [56] Despite testifying earlier that the parties had breakfast at his residence, the Accused stated the parties made arrangements to meet for breakfast, after the Accused went to the car wash. However, the complainant hit the neighbour’s car, so he returned home. She was upset. The Accused reports that after calming her, the parties went to the car wash together. The complainant for upset and left. He said they left on good terms and did not argue that day. [57] After they parted ways that day, the complainant asked him to send her one of the recordings during a phone call. He sent it to her as requested, by SnapChat. She said “thank you”. He never said he would send the recordings to her family. [58] They met next on November 8, 2021 and again on November 23, 2021 when the Accused visited the complainant at her residence, in Port Elgin. He claims they spoke on November 22, 2021 around 1150PM about him attending. She said she was not working that day, which is why they decided he would come. [59] He arrived in Port Elgin around 220PM, and at the complainant’s residence around 235PM. He called the complainant. She came out at 240PM and they went inside. The complainant was making Indian food for lunch. It was only the two of them present. [60] The parties did not speak on the phone again until the next day because they were together for the rest of the day/night. [61] The Accused’s phone bill was submitted as an exhibit. It shows the Accused calling the complainant’s phone at 1431, 1436, and 1440 from Port Elgin. He is receiving/making calls in Port Elgin afterwards. [62] The Accused denies the allegation of assault. Rather, he reports the parties were consensually intimate earlier in the day, when he arrived. They went up to the complainant’s room around 250PM, had lunch, sexual intercourse, and stayed there until disturbed by the complainant’s roommates. In particular, R.K. knocked on the complainant’s door around 510/515PM. [63] During cross examination the Accused denying having any long phone calls when he was with the complainant. His phone record was put to him showing a 14 minute phone call at 445PM. His evidence then changed to acknowledge the call, although he could not recall who it was. His evidence also changed to state that he took the call while eating lunch, which he earlier indicated was roughly 2 hours earlier when they first went up to her room at 250PM. [64] In any event, the parties got dressed and the complainant introduced R.K. and the Accused to each other. R.K. invited the Accused to the party that night. [65] R.K. and the parties left the home to go get food and drinks around 615-630PM. The complainant drove; he moved his car to the side so she could drive her car – he does not like driving after driving Uber all day and he doesn’t allow others to drive his car. He sat in the front passenger seat. [66] The parties stopped first at the LCBO. R.K. purchased a 750ml bottle of Glenfiddich and a small bottle. From there, they went to the Harvey’s in the same plaza to the drive through where they ordered chicken nuggets and poutine. They had to wait for the order for 10-15 minutes, during which time the complainant passed 3 glasses to R.K. – the complainant and R.K. started drinking. R.K. poured 3 large shots; the Accused dd not drink his. The Accused testifies that they were at Harvey’s at 7PM. [67] They next went to Walmart. Before going in, the complainant and R.K. had a second shot. The complainant when into the store and purchased a cake. She was inside 10-15 minutes. [68] The next stop was Canadian Tire as the complainant wanted to get a snow brush and it was close by. She was inside 5-10 minutes. R.K. and the complainant had a third shot. [69] The parties and R.K. then returned to Harvey’s for 5-10 minutes as they had eaten the earlier order. The Accused also ordered a party pizza and went to Pizza Hut for pick up. The complainant went into the store to pick up the pizza. The Pizza Hut receipt shows the order placed at 747PM. The Accused estimates the complainant went in around 815 to pick it up, and was back to the car before 830PM. [70] They stayed in the parking lot for another 5-10 minutes listening to music. [71] The complainant was stumbling a bit, but they were near her residence and it was the last stop. He described her as drunk when they got back to the house. [72] Notably, all the other stores/restaurants are in the same plaza and connected by the same parking lot. [73] They returned to the complainant’s reside before 9PM. The others made him a drink (whiskey) and the Accused drank it during what he termed a “cheers” moment. He did not drink before then, having 3 drinks that night. M. arrived around 930 - 945PM, by which time the bottle was finished. M. did not drink that night. [74] M. went to his room sometime after 10PM. The others remained downstairs listening to music. The Accused had 2-3 drags from R.K.’s joint. While they were outside, the complainant went up to her room. [75] The Accused went to the washroom upstairs around 1120-1125PM until 11:40PM. He wasn’t certain but stated he might have been using his phone, and may have called his mom on WhatsApp. He might have answered a call. [76] He then went into the complainant’s room. She was not there. He went downstairs looking for her, and saw her outside in her car texting at roughly 1145PM. The complainant was concerned she would drive, and took her phone and keys and asked her to come in and talk. She followed him in. [77] By this time, she was not in control, was not walking nicely, laughing a lot. He described her as “over drunk” [78] He started upstairs with the complainant behind him. She tripped and her face was on the 3rd or 4th step. He did not see how she fell. [79] The Accused put her phone and keys in his jeans to free up his hands to help her; she was asking for her car keys. She aggressively pushed him back and sat on him and started slapping him. His glasses broke, and his t-shirt ripped. [80] She bit him on his left shoulder and was scratching him for 1-2 minutes. He was holding her so she didn’t fall. Her face was on his left side, with her feet to his right. He picked her up to take her to her room. [81] She bit his right chest, so tight he had to throw her on the bed. In cross examination he stated that he did not throw her, but he had to drop her on the bed, nicely. The Accused called out to R.K. to help him, and the complainant hit him on top of his forehead. He removed the complainant’s phone from his pocket and hit “emergency”, then “911”. She told him don’t do it, and to given her back the phone. He dropped the call. She calmed down and he gave her, her phone back. [82] He changed from his jeans to his jogging pants. They both went to sleep. The complainant went to sleep before 1245AM. The Accused went down stairs to get his phone and key, and then he went to sleep. He woke against around 350AM and went to the washroom. [83] The Exhibits of photos taken by the Accused’s friend, as well as by police, show a scratch on his upper left forehead, parallel scratches to his left jawline area, bite marked on his left shoulder, scratched on his chest and inner upper left arm area, and a bite mark on his right chest. [84] When they woke up to the complainant’s alarm, it was her who said not to call police. When they parted ways, he tried to reassure her not to worry about the last night (immigration concerns). She said, “I will show you what I can do”, and left. [85] The Accused’s left chest was bleeding and in pain. He stopped at a friend’s home in Brampton in his way home to get a new pair of glasses and medication, and asked his friend to take photos of his injuries. [86] The Accused returned a message to police the next day and cooperated with his arrest.
Evidence of Constable Stacey Gordon
[87] Constable Gordon met with the complainant on November 24, 2021 when she attended the Saugeen Shores Police detachment. The complainant attended sometime shortly after 9AM wearing her work uniform. She was nervous and quiet. The complainant appeared scared and avoided eye contact. Her hands were trembling as she spoke. [88] When they discussed the video of the complainant changing, she indicated it was without her consent. [89] At 1130AM Constable Gordon took the complainant to the Owen Sound Hospital. After the hospital, the complainant was exhausted and slept.
Evidence of R.K. via Agreed Statement of Fact
90R.K. had been drinking whiskey during a party at the house he shared with the complainant, on November 23, 2021. He did not observe anything remarkable about the behaviour between the parties. He did not hear anything that night while he was in his room, which was beside the complainant’s room. Had he done so, he would have called police.
Parties’ Positions
[91] The parties’ submissions focussed on credibility alone. [92] The defence theory is that the complainant was intoxicated, and therefore her evidence is unreliable. As well, her evidence changed, and she seemed to make up things as she went along. Her evidence was untruthful and should be rejected. [93] Similarly, the Crown submits that the evidence of the Accused is not credible and should be rejected in its entirety. [94] While the Crown concedes there are some minor inconsistencies in the complainant’s evidence, these can be explained by the passage of time or traumatic memory. They are on peripheral issues and should be accorded no weight when considering the credibility and reliability of the complainant as a whole. [95] On the material issue of the alleged assault, the complainant’s evidence was unshaken on cross examination. Her subsequent actions and demeanor were consistent with what she alleged happened. Her recorded injuries were also consistent with her narrative.
Legal Framework
96Section 162 of the Criminal Code creates the offence of voyeurism. It states:
162 (1) Every one commits an offence who, surreptitiously…makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (c) the observation or recording is done for a sexual purpose. (2) In this section, visual recording includes a photographic, film or video recording made by any means. [97] The Ontario Court of Appeal in R . v. Trinchi , 2019 ONCA 356 summaries the circumstances that give rise to this charge starting at paragraph 8:
8 Paragraph (a) addresses the situation in which the subject is in a place in which a person can reasonably be expected to be nude, exposing intimate body parts, or engaged in explicit sexual activity. It is worth noting that paragraph (a) does not require the person to be actually nude, exposing intimate parts of his or her body, or engaged in sexual activity. It is enough if they are in a place where they may reasonably be expected to be in such a state, such as a changing room, toilet, shower stall, or bedroom . … Paragraph (a) does not require the Accused to act for a sexual purpose.
10 Paragraph (c) applies to an Accused acting for a sexual purpose. Paragraph (c) applies whether the subject is clothed or unclothed — no matter what she or he is doing.
11 It is worth repeating that the opening words of the section specifies limitations that apply to all three paragraphs. The Accused must have acted "surreptitiously" and the subject must have had a reasonable expectation of privacy in the circumstances.
12 Section 162(1)(b) requires proof of the following elements:
[1] The Accused observed or recorded the subject; [2] The Accused's observation or recording was done surreptitiously; [3] The subject was in circumstances that gave rise to a reasonable expectation of privacy; [4] The subject was nude or exposing sexual parts of her body or engaged in sexual activity; and [5] The observation or recording of the subject was done for the purpose of recording them in such a state. [98] In R . v. Downes , 2023 SCC 6 , the Supreme reiterated at para 5 that, “… s. 162(1)(a) designates places such as bedrooms, bathrooms, and dressing rooms as "safe places" where people should be free from intrusions onto their privacy and sexual integrity, whether or not a person in the place could reasonably be expected to be nude or engaged in sexual activity at the specific time the person is surreptitiously observed or recorded”. [99] In this case, the recordings were admittedly made by the Accused in his bedroom which is an established location of the kind of privacy protected by this section. As well, in one of the recordings the complainant’s breast was exposed. All of this is undisputed. [100] The issue in this therefore whether the Accused acted surreptitiously in making the recordings. [101] R . v. Trinchi , supra , also addresses what is means for the observation or recording to be made surreptitiously. Starting at para. 41, the court considers:
41 There is little judicial consideration of the meaning of "surreptitiously". This is not surprising because whether the Accused has acted surreptitiously is typically not an issue in voyeurism cases. In the typical voyeurism case, the Accused is a third party who has used a hidden camera. The use of a hidden camera will generally establish surreptitiousness. In this case the complainant knew the Accused was viewing her through a webcam.
43 ... "Surreptitiously" in s. 162(1) must be given its ordinary meaning.
44 The definition of "surreptitious" from the Canadian Oxford Dictionary , 2d ed., was quoted by the court in R. v. Lebenfish , 2014 ONCJ 130 , 10 C.R. (7th) 374 (Ont. C.J.) , at para. 25 : "obtained, done, etc. in secret or by stealth or by illicit means; clandestine." The trial judge in this case quoted the definition of "surreptitious conduct" from Black's Law Dictionary , 9th ed.: "unauthorized and clandestine; stealthily and usually fraudulently done." These are useful definitions, but they use other words, such as stealthily and clandestinely, which themselves may invite definition. In oral argument, the appellant's counsel accepted the definition of "surreptitiously" in the online Oxford English Dictionary , at http://en.oxforddictionaries.com , which uses simpler words: "[i]n a way that attempts to avoid notice or attention; secretively."
45 The question whether the word "surreptitiously" as used in s. 162(1) included intent as part of its meaning came before this court in R. v. N. (M.E.) , 2014 ONCA 69 (Ont. C.A.) , leave to appeal refused, [2015] S.C.C.A. No. 278 (S.C.C.). The facts of the case are not apparent as the appeal was dismissed in brief reasons. The court stated, at para. 4"[a]ssuming, without deciding, that the word 'surreptitiously' does include intent as part of its meaning, in our view the trial judge found that the appellant intended that the complainant not be aware that she was being photographed."
46 I am satisfied that the ordinary meaning of the word "surreptitiously" does include intent as part of its meaning. A person who observes or records with the intention that the subject not be aware that he is doing so, is attempting to avoid notice or attention. Moreover, I consider N. (M.E.) 's articulation of the mental element to be apt. The mental state required by the word "surreptitiously" in s. 162(1) is the intent the subject not be aware that she is being observed or recorded. In a prosecution under s. 162(1)(b), the Crown may prove the Accused acted surreptitiously by proving that he observed or recorded the subject with the intention she be unaware he was doing so.
49 In Lebenfish , the trial judge found that the Accused's picture-taking was not "objectively surreptitious". He found it unnecessary to consider whether the Accused had acted "subjectively surreptitiously". Such an analysis leads to unnecessary complication. The word "surreptitiously" refers not to what the Accused does, but to the state of mind with which he does it. The required criminal intent for the "surreptitiously" element in s. 162(1) has been proven where the Crown establishes that the Accused intended the complainant be unaware he was observing or recording her . [102] The offence of extortion is set out in s. 346 of the Criminal Code . It states:
346 (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, Accused or menaced or to whom violence is shown, to do anything or cause anything to be done. [103] There is no dispute that if the Accused made the threat, as alleged, he did not have justification to do so. [104] The elements of the offence require proof that: (1) The Accused made a threat against the complainant; (2) The threat was made to induce to attempt to induce any person to do anything [105] A threat is any communication, written, oral, or other means which causes the message to be received by another person. It may be direct, or conditional. In determining what meaning a reasonable person would give to the words used, the court gives objective consideration to:
- The circumstances;
- The manner in which the words were communicated;
- The person they were addressed to;
- The nature of the relationship between the parties;
- The plain and ordinary meaning of the words used. [106] In R . v. Barros , 2011 SCC 51 , the Supreme Court, identified the essence of the offence of extortion:
61 The key element, as the Court recognized in R. v. Davis , , [1999] 3 S.C.R. 759 (S.C.C.) , is the relationship between the alleged threats, etc. and the complainant's freedom of choice:
Extortion criminalizes intimidation and interference with freedom of choice. It punishes those who, through threats, accusations, menaces, or violence induce or attempt to induce their victims into doing anything or causing anything to be done.... [T]he victim may be coerced into doing something he or she would otherwise have chosen not to do. [References omitted; para. 45.]
Accordingly, a veiled reference may constitute a threat if it is sufficient, in light of all the circumstances, to convey to the complainant the consequences which he or she fears or would prefer to avoid : R. v. McClure (1957), , 22 W.W.R. 167 (Man. C.A.) , at p. 172 . The courts have elsewhere adopted a similar contextual interpretation: R. v. Hodson , 2001 ABCA 111 , 92 Alta. L.R. (3d) 262 (Alta. C.A.) , at paras. 11-13 ; R. c. Pelletier (1992), , 71 C.C.C. (3d) 438 (Que. C.A.) . [107] The relevant sections of the Criminal Code relating to Sexual Assault causing bodily harm and/or with choking are:
265 (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
272 (1) Every person commits an offence who, in committing a sexual assault, (c) causes bodily harm to the complainant; (c.1) chokes, suffocates or strangles the complainant; or [108] In R . v. Nelson , 2014 ONCA 853 the Court of Appeal set out the test for sexual assault causing bodily harm ( citing R. v. Zhao , 2013 ONCA 293 at para 107 ) in paras. 24 and 25 :
24 In Zhao , at para. 107 , this court provided guidance to trial judges on the proper instruction to juries on the offence of sexual assault causing bodily harm:
- The jury must be satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant.
- The jury must be satisfied beyond a reasonable doubt that the intentional application of force to the complainant took place in circumstances of a sexual nature such as to violate the complainant's sexual integrity.
- The jury must be satisfied beyond a reasonable doubt that the intentional application of force in circumstances of a sexual nature caused bodily harm.
- If in addition to the above three criteria, the jury is satisfied beyond a reasonable doubt that the accused intended to inflict bodily harm upon the complainant (a subjective criterion), then consent is irrelevant, and the accused would be found guilty of sexual assault causing bodily harm.
- If the jury is not satisfied beyond a reasonable doubt that the accused intended to cause the complainant bodily harm, then they would need to go on to consider whether they are satisfied beyond a reasonable doubt that the complainant did not consent to the intentional application of force by the accused.
25 A finding of guilt under the first four steps set out in Zhao does not require that a jury make a finding of lack of consent. This follows from the rule in Jobidon that a person cannot legally consent to intentionally inflicted bodily harm. The fifth step of Zhao represents an alternative path to conviction. Under the fifth step, if the jury is not convinced that the accused subjectively intended to cause the bodily harm, it may nevertheless find the accused guilty of sexual assault causing bodily harm if it is satisfied that the complainant did not consent to the intentional application of force and that the risk of bodily harm was objectively foreseeable: R. v. DeSousa , , [1992] 2 S.C.R. 944 (S.C.C.), at p. 961; R. v. Creighton , , [1993] 3 S.C.R. 3 (S.C.C.); R. v. S. (F.) (2006), , 262 C.C.C. (3d) 472 (Ont. C.A.), at para. 28 . [109] Bodily harm is defined in s. 2 of the Criminal Code as any hurt or injury that interferes with the complainant’s health or comfort and that is more than merely transient or trifling in nature. Harm includes interference with psychological well being. Punching has been considered to cause bodily harm. [110] Choking is defined as an internal obstruction of the airway. However, in common parlance the word is used to describe external force to the neck ( R. v. Meyers, 2016 CarswellSask 860 , 2016 SKQB 413 (Sask. Q.B.) ; R. v. M. (K.S.), 1999 CarswellBC 809 , 1999 BCCA 234 , 122 B.C.A.C. 276 , 200 W.A.C. 276 (B.C. C.A. [In Chambers]) ; R. v. Cook, 2014 CarswellMan 114 , 309 C.C.C. (3d) 50 , 2014 MBCA 29 (Man. C.A.) ) . [111] The Accused also stands charged with unlawful confinement, which offence is set out in s. 279(2) of the Criminal Code :
279( 2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction. [112] R. v. Pritchard , 2008 SCC 59 , [2008] 3 S.C.R. 195 (S.C.C.), where Binnie J. said, at para. 24:
The authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2) [citations omitted]. [113] The time requirement is not a separate element of the offence, but rather is used to consider if the victim was actually confined as part of the actus reus. As stated by a unanimous Court of Appeal in R. v. Ally , 2022 ONCA 558 at paras 96 and 97 :
96 First, I am skeptical that " significant period of time " is a distinct essential element of the offence of unlawful confinement under s. 279(2) of the Criminal Code connoting some minimum temporal component. Rather, I view it as one aspect of a description often used to explain the confinement element of the actus reus of unlawful confinement .
97As noted above, in both Magoon and Sundman , the Supreme Court stated that to establish unlawful confinement under s. 279(2), the Crown must show that: 1) the accused confined the victim, and 2) the confinement was unlawful: Magoon , at para. 64; Sundman , at para. 21.
101 Moreover, other descriptors, similar to "significant period of time" have been approved by this court, including "some appreciable time" ( Kimberley , at para. 112) and "some period of time" ( Parris , at paras. 59 and 60). [114] In this case, there is no assertion that the Accused had any lawful authority to restrain the complainant, as alleged. The issue is therefore whether he restrained her physically or psychologically.
Issues
115The issues for determination by the court in this case are therefore:
- In making all or some of the recordings of the complainant on October 27, 2021, did the Accused intend the complainant to be unaware he was recording her?
- Did the Accused threaten to send one of the recordings to the complainant’s parents?
- If so, did he do so to induce the complainant to continue in their relationship?
- Did the Accused intentionally kiss and have vaginal intercourse with the complainant on the night/morning of November 23/24, 2021?
- If so, during the course of this did the Accused choke the complainant? Did her punch the complainant?
- If so, did he do so intentionally or did the complainant consent?
- Did the Accused physically or otherwise restrain the complainant from leaving her bedroom?
The Onus
[116] The onus is always on the Crown to establish all elements of the offence beyond a reasonable doubt. The defence need not do anything to disprove the offence ( R . c. Fontaine , 2004 SCC 27 , 2004, [2004] 1 S.C.R. 702 , [2004] S.C.J. No. 23 .) [117] When an Accused does present evidence, the conflicting evidence requires the Court to undertake a credibility assessment and apply the principles set out in R . v. W . D ., , [1991] 1 S.C.R. 742, which are as follows: (1) If I believe the exculpatory evidence of the Accused, I must acquit; (2) If I do not believe the testimony of the Accused, but I am left in reasonable doubt by it, I must acquit; and (3) Even if I am not left in doubt by the evidence of the Accused, I must consider whether on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [118] There is no presumption of credibility or reliability and the court may accept all, none, or part of the evidence. As stated in R . v. Martiuk , 2023 ONSC 414 at para 83 (citations omitted):
There is no singularly correct or scientific method for assessing credibility. However, it is important to avoid credibility assessments based on what Paciocco J.A. has described as "impressions [that are] the product of stereotype, emotional evaluation, or ill-founded confidence in what is no more than guesswork." In particular, it is now increasingly recognized by both trial and appellate judges that a witness's demeanour when testifying has limited value in assessing credibility. [119] Credibility is not a contest between the parties. The determination is not based on who the court believes, but rather what the court believes. As the Ontario Court of Appeal stated in R . v. Smith , 2020 ONCA 782 at para. 36 , “credibility is not an either/or proposition and treating it as such shifts the burden to the Accused by suggesting that an acquittal is only available if the Accused’s story is believed rather than the story of the complainant”. [120] Indeed, both stories may be capable of belief. The Ontario Court of Appeal explained this in different language in R . v. T.A ., 2020 ONCA 783 wherein it states where there is conflicting evidence that is credible, it is not a credibility contest; the Court does not have to believe one narrative to the exclusion of the other. [121] The Ontario Court of Appeal went on to clarify the role of the court at para. 28, which is not to determine which version of events is true, but rather, “to determine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt”. This determination is one made on the totality of the evidence ( R . v. J.H.S ., 2008 SCC 30 at para. 13 ). [122] In making that determination, the court can reject a denial, not as a matter of preferring a complainant’s evidence to that of the Accused, but “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence of the prosecutions witnesses” ( R . v. O. M . 2014 ONCA 503 at para 45 ). The Ontario Court of Appeal in R . v. D. (J.J.R. ) , [2006] O.J. No. 4749 stated at para. 53 :
The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an Accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an Accused's evidence as is a rejection based on a problem identified with the way the Accused testified or the substance of the Accused's evidence. [123] In assessing credibility it is important not to hold either party to the standard of perfection, and not every lapse in memory or inconsistency will be equally important. In deed, inconsistencies and lapses are to be expected in most cases as the passage of time inevitably affects memory, if nothing else. [124] As stated in R . v. W. (R.) , , [1992] 2 S.C.R. 122 (S.C.C.), at p. 134 “every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate”. This includes their perception, concept of time, and focus on the event rather than on peripheral matters. [125] The Ontario Court of Appeal commented on the nature and use of inconsistencies in assessing credibility in R . v. M. (A). , 2014 ONCA 769 at paras 12-14 :
12 Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), , 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.) , at p. 354.
14 Fifth, A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.) , 2008 SCC 51 , [2008] 3 S.C.R. 3 (S.C.C.), at para. 64 . That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.) , at p. 356; R. c. Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788 (S.C.C.), at para. 31 .
General Credibility Issues
[126] In this case, both parties included details in their Trial evidence that was not in their police statements. More accurately, they omitted information in their police statements. [127] In particular, the complainant did not initially disclose that she was further assaulted during her attempts to leave the room after the sexual assault, packing the Accused’s bag and asking him to leave, or that she did not consent to the 5 second recording the Accused made of her on October 27 th . She explained that she tried to give them all the information she could and she didn’t know what kind of information they needed. As well, her focus was on the assault – that was what was going through her mind that morning. Regarding the issue of the 5 second recording, Constable Gordon’s evidence was that the complainant actually did say she did not consent. [128] The Accused did not specifically disclose the 5 second recording of the complainant’s naked breast, or his evidence that the complainant was messaging a new boyfriend (Jai) in her car before falling on the stairs. The Accused explained, “I might have missed it but its very important. I’m trying to cover as mush as I know”. [129] Both parties suffered issues with their recall of some of the evidence due to the passage of time. The complainant in particular had difficulty in recalling specific times and when exactly M. arrived home. The complainant, more than once, commented that she would have remembered better if she new she was going to be assaulted – her primary focus was on the events of that evening. [130] The Accused made specific references to times in his evidence, however, it is important to note that the Accused did not have an independent memory of these times. Rather, in preparation for trial, and during trial, he was refreshing his memory or recreating his time line based on his phone records from November 23, 2021 and a receipt from Pizza Hut. [131] When questioned about other unidentified calls on his phone records, he could not recall those details. He could not recall what route he took to Port Elgin, or whether he stopped for a snack. He did not recall making or receiving any calls initially when he was in the bathroom the night of November 23, 2021 which he didn’t have records for, eventually suggesting he spoke with Mother on WhatsApp; he relied heavily on the information in the phone record, rather than his memory. At one point in his testimony he acknowledged the impact of the passage of time on his memory, commenting that it, “was 2 years ago”. [132] The Accused looks to his phone records to corroborate his timeline and overall narrative. However, the phone records are only a partial picture of the parties’ communication. They do not identify incoming callers. As well, the parties communicated largely through SnapChat when not driving. There were no SnapChat records provided, or perhaps even made. We also know he was using WhatsApp to communicate that day. [133] The phone records are equivocal. They may generally assist in understanding the Accused’s progression that day, but do not assist in corroborating either party’s narrative or timeline. [134] For instance, the calls at 2:31PM, 2:36PM and 2:40PM could have been the Accused arriving as he states, or the 14 minutes call at 4:45PM could have been the call when he was midway as the complainant believes. [135] They do not assist in assessing the accuracy or veracity of either party’s evidence. They are not corroborative for either party. [136] The Accused submits that the fact that R.K. (the roommate) did not hear anything corroborates his version of events. If the complainant were yelling and banging on the wall, R.K. would have heard it. [137] However, I do not find that the Agreed Facts regarding R.K. is helpful. Both parties testified that he was drinking that night and smoking marijuana. The complainant described him as drunk. R.K. was not called as a witness. I have no evidence about his level of consciousness and responsiveness and cannot make assumptions about why he might not have responded, or if he had the ability to do so.
The Complainant
[138] I find the complainant was generally credible and her evidence on the material issues, reliable. [139] As set out above, the complainant’s evidence about where she was during the day of November 23, 2021 changed. However, without any question or prodding to do so, she corrected herself. The salient point for her was that she was coming from somewhere, not necessarily where she had been, and she was usually coming from work. This was not an attempt at deception on her part and was an honest mistake which she corrected at first instance. [140] The parties’ evidence does not differ significantly regarding the excursion with R.K. going out to the LCBO and for food. It is not disputed they went to the LCBO, for chicken nuggets, and to Pizza Hut. [141] The complainant’s evidence about going to Pizza Hut was hazy – she did not initially recall it. But then recalled that she paid for it. She believed she called in the order, because that was her habit. She did not recall that the Accused ordered online which is reasonable given her normal practice of calling in orders. [142] She did not remember if they went back (to Harvey’s) for more chicken nuggets, but did not think so. Her reckoning of how much time passed is also questionable. [143] The Accused submits that these problems with the complainant’s recall is because she was intoxicated; her evidence is unreliable. [144] I agree that her evidence raises some questions about reliability around the timing, stops made, and length of the excursions to the LCBO and for chicken nuggets. However, I do not do so on the basis of intoxication, but rather as a result of what I have already commented on, being the relative unimportance of the excursion to the complainant and the passage of time. [145] What was more problematic was the complainant’s absolutist denials to the possibility that she went to Walmart and Canadian Tire during the excursion; it would have been reasonable for her to concede the possibility of these trips in the circumstances where she did not recall the minutiae of the other stops they made. [146] As well, at times she exaggerated her evidence. When discussing how she came to be at the Accused’s residence on October 26th, she stated that he “forced” her to come, when she more accurately described moments later as him convincing her to go to his home. [147] Therefore, there are some reliability issues primarily affecting the complainant’s evidence regarding the antecedent events to the alleged sexual assault. [148] The Accused submits that it is not credible that the complainant went to bed early, questioning how she would be able to sleep if R.K. and the Accused were downstairs listening to music. However, it is not disputed that M. left the party for bed early. As well, the music was playing on a cell phone, so the volume was limited. Someone playing music on a cell phone in another area of the house could not reasonably be expected to disturb the complainant. [149] The Accused in his submissions raises the question of how the complainant knew R.K. was in bed, when the Accused came to her room. Unfortunately, this question was not asked of the complainant. As with some of her other evidence, this was likely something she learned afterwards, such as that R.K. provided the Accused with condoms etc. I make no inferences about this. [150] The physical evidence strongly supports the complainant’s version of events regarding the sexual assault and bolsters her credibility. While she initially testified her right eye was injured, she corrected herself and said she did not recall which eye. She claims she was punched several times, and was defending against being punched. It is reasonable she would not recall which specific eye in the circumstances, and that she would relying on the photographic evidence. [151] The nature, variety, location and number of injuries are consistent with the complainant’s account of the alleged sexual assault, which includes bruising on either side of her neck (alleged choking), bruising to her right eye area (punching), cut on her inner lip (biting), other marking on her face and arms and swelling to the back of her head (punching). [152] The Accused submits that the complainant’s evidence about going to sleep after the alleged assault was inconsistent with her statement to police. What became apparent from the complainant’s evidence was that this was a semantics issue. She used ‘closing her eyes’ and ‘sleep’ rather synonymously. When questioned further, she provided better description that she was trying to sleep and that she was not really asleep or in a deep sleep. [153] The Accused submits that the complainant contradicted herself on whether the Accused ejaculated or not. However, this appears to be a comprehension issue – the complainant described the actual act of ejaculation immediately after, stating that he put his “sperm on her tummy”. She was not asked what her understanding of “ejaculation” was. Using her own language, her evidence was consistent and unchanging. [154] The Accused submits that the complainant’s testimony about when the parties had a conversation after the alleged assault is contradicted by her statement to police. The evidence is not actually a contradiction. The complainant’s evidence is that immediately after there was a conversation about why he did it. They spoke again briefly before she left for work to assure him she would not call police, so she could get her phone back. Her testimony at trial was unchanging, although she couldn’t recall what if she told police about the earlier conversation. [155] Further, I draw no inferences about the complainant’s credibility for her refusing a vaginal examination – it is an invasive and intimate exam which itself can be traumatic, or re-traumatizing. There are many understandable reasons to refuse and I cannot draw an adverse inference from the complainant’s refusal in the circumstances. [156] Regarding the events of October 27, 2021, as set out below, there is extrinsic documentary evidence supporting the complainant’s allegation that she was breaking up with the Accused and that he was making threats involving her family. [157] Although not without some issues, on the material issues the complainant testified in an internally consistent and unshakable manner, supported by physical and documentary evidence.
The Accused
[158] That I find the complainants’ evidence to be credible is not sufficient to discharge the Crown’s burden. The test is beyond a reasonable doubt. As noted by this court in R. v. J.W. , 2014 ONCA 322 , at para. 26 : “a reasonable doubt can survive a finding that the complainant is credible.” [159] However, I find the Accused’s evidence on the material issues to be unreliable, and not credible. [160] Dealing first with the events of October 26/27, 2021, the Accused’s evidence was extremely changeable regarding how he was holding his cell phone when making the recordings of the complainant – at different times it was above his tummy, above his head, not sure where it was in relation to his eyes, and above his chest. The photographic evidence does not reveal an angle that would make it obvious he was trying to record the complainant. [161] The change in his evidence raises not only reliability issues regarding the Accused’s evidence, but concerns he was deliberately changing his evidence to conform to his position that the complainant knew he was making the recordings – that is, that he was holding his phone in a way that she would know. [162] The photographic evidence does not support the Accused’s evidence that he took the recordings from an elevated position – the recordings show the Accused’s feet, stretched out before him on the same level as the lower part of the camera in the bottom ¼ of the screen. In one of the recordings his lower legs are in view. Notably, the actual camera lens is located in the upper right hand corner of the device. The photographic evidence is consistent with one of his versions, which is that the camera was on his tummy. [163] As well, the extrinsic evidence of the parties’ Instagram exchange shortly after parting that morning belies his earlier testimony that the parties did not argue and he thought all was well between them when he went to bed that night. [164] The Accused claimed that the parties left on good terms the morning of October 27, 2021 and that they did not argue. Q…then you went to bed that night and there had been no argument between the two of you and as far as you were concerned everything as all good, right? A. Yes…. [165] The Accused testified that the parties were talking (on the phone) around noon, after they left the car wash, the complainant asked him to send the recording, and she said thank you, whereas the complainant alleges that he was angry with her for leaving that morning without saying anything, and that when she broke up with him he made the threat to send the recording to her family. [166] Exhibit 11 was the screen shot of the SnapChat messages sent after the parties separated that morning. The first message is banal and an inquiry by the complainant about a towel. The second is the recording of the complainant with her naked breast. Immediately following this, there was a dramatic shift in the tone and content of the parties’ communication, which lends credence to the complainant’s claim that this was the first time she became aware of the recording. [167] The parties exchanged messages on Instagram (Exhibit 12) starting at 133PM: K.: “goodbye…I hate you A., I’ve not seen a boy like you or a man like you that makes money off of women, off of girls.” A. “send me my money that I spent on u” K.: “There is a limit, A. hate you” A.: “right now” K.: “you didn’t spent anything on me. Let me tell you” A.: “send me my money right now” K.: “that is my money. Not yours. I didn’t never said that to come to my place. Never ver. That was your wish. Now m done man. You used me for sex. You used girls for sex and click their nude pictures and blackmail them. That is you. Shame on you A. That’s how you making the money. Shame on you.” A.: “I’ll tell everyone now how you are contacting boys online to sleep with you. You used me and you used my time and all my money is spent on you. You are just an escort. Calling boys to your house to fuck u and then coming to my home. I’m asking my money. No like you. You are an escort. Sleeping with anyone to make money. Your parents should know ur character and everyone else as well. 4 boys are with me who say you slept with them and took money. You are making money like this. No good girl. Send me by $300 that I spent” K.: “okay show me the boys becz as I know I didn’t slept with anyone except you. And I didn’t took any money from you. You are talking about the money you spend on your gas to meet me, I never told you come to meet me. That was your own wish. I trusted you A. I liked you that’s why I did sex with you. And you are blackmail me to sending me my nude videos. R ya kidding me. You told me that you loved me I trusted you. That’s why I slept with you.” A.: “are you crazsy? How can I love an escort who is having sex with everyone around. [168] He then explained that she was mad at him, but because she had hit his neighbour’s car when leaving that morning, and he did not take her side; he was trying to calm her down. His comments about her parents “should know your character” was about her dishonesty in talking with multiple people. [169] The Accused deliberately misled the court regarding this event. It was not an innocent omission or a minor disagreement. It could not possibly be interpreted as anything other than an argument ending the relationship and accusations of infidelity. Contrary to his Trial evidence, the Accused did not think everything was fine. He was angry and making various threats. [170] This is not an honest witness being careless with the truth. This is intentional dishonestly which taints the balance of the Accused’s evidence, making it unreliable at best, and not credible at worst. [171] Regarding the events of November 23/24, 2021, the Accused claims that the complainant was drinking, a lot and in a short period, such that by the last stop she was unsteady on her feet. They were 5 minutes from home, so he did not intervene. This allegation is material to the Accused’s version of events which is that the complainant was drunk and assaulted him when he tried getting her up the stairs and into bed. [172] However, his testimony about the October 26, 2021 event was that she was also a new driver. He also later testified they remained at the Pizza Hut for another 10-15 minutes, not that they were going directly home. Despite these things, and his claim he was not drinking, he allowed her to drive. This is implausible especially in the context of his evidence that he was a conscientious driver – he did not use SnapChat etc while driving, would not let others drive his car, and he drove for a living, as well as his allegation that later that night he prevented her from driving intoxicated. [173] I am particularly concerned with the physical evidence. The Accused’s version of events does not account for the complainant’s injuries. The injuries to her face are on opposite sides of the face around the mouth and eye and of differing natures. There are multiple injuries to her lip area of different kinds, including a purple mark, a scratch, and the cut inner lip. Further, there was an injury to the back of her head. The injuries are not explained by the sexual activity he alleges earlier in the day, or the one trip and fall on the carpeted stairs he reported. [174] Most concerningly, the Accused’s version does not account for the bruising on either side of the complainant’s neck, or the circular bruise (bite mark) on her left arm near the elbow. [175] The extrinsic physical evidence contradicts the Accused’s narrative. That, and my credibility finding regarding the October 27 th incident causes me to reject the Accused’s evidence on the material issues.
Analysis
In making all or some of the recordings of the complainant on October 27, 2021, did the Accused intend the complainant to be unaware he was recording her?
[176] There is a plethora of case law dealing with surreptitious recordings, both in the criminal and family law contexts. With very few exceptions, we now navigate life with smart phones or devices which have multiple functions, including audio recording, video recording and photos. [177] Most cases deal with recordings being made where the device itself is concealed. In this case, the device was in the hands of the Accused and pointed in the direction of the complainant. He was not hiding his device, but that does not create a presumption that he is recording, especially where in a location of privacy. [178] In most cases it will be obvious when someone is recording. They may ask someone to pose, they may narrate for the recording the events that are being recorded, the device may be held up or away from the body or in another obvious position to capture a better view or image, a selfie stick, tripod or other aid may be used. [179] As set out in R . v. Downes , 2023 SCC 6 , it is not sufficient that a device is visible. The court used the example of a parent in the locker room recording a victory celebration as not being surreptitious. In that example, the device would be held and moved in a way that it would be apparent what function was being employed (recording). [180] Unless there is something obvious in the location, context, position of the device or express communication that something is being recorded, the subject has no means of being aware they are being recorded on a device. At best, the person making the recording is acting recklessly. [181] In this case, the complainant knew she was being observed by the Accused. However, that is a different matter from being recorded. Further, the issue is not whether the complainant even knew she was being recorded, but whether the Accused intended for her not to be aware. This can be inferred from the circumstances. [182] I find that the Accused was not holding his device in a manner that would have brought attention to the recording function or that other circumstances would alert her to the recording function being used. There is no evidence that the Accused actually told the complainant he was recording her prior to, or during the recording (only that “she knew”), or taking any steps to overtly bringing it to her attention. He was reckless. [183] The credible evidence, which I accept, is that the complainant asked if the Accused was recording, and he said no. In doing so, I find the Accused intended the complainant to be unaware he was recording her.
Did the Accused threaten to send one of the recordings to the complainant’s parents for the purpose of inducing the complainant to stay in the relationship?
[184] During a phone call sometime around noon on October 27, 2021, I find that in response to the complainant effectively breaking up with the Accused, he sent the 5 second recording of her with her naked breast exposed to the her SnapChat, and asked if she wanted him to send it to her parents or put it online. [185] While the Accused did not threaten the complainant ‘clumsily and without subtlety’, (that is, expressly and directly) to borrow the language from the Supreme Court in R . v. Barros , supra , in the circumstances of the conversation, it was the complainant’s understanding that if she ended the relationship with the Accused that he would send the recording to her family or otherwise release it. [186] This understanding is objectively reasonable – soon afterwards the Accused was making other threats to report information about the complainant’s promiscuity to her parents, and demanding money. He was angry and upset about her other relationships.
Did the Accused intentionally kiss and have vaginal intercourse with the complainant on the night/morning of November 23/24, 2021?
187I find that on the night/morning of November 23/24, 2021, over the course of roughly 2.5 hours sometime between the hours of approximately 1130PM – 3AM that the Accused intentionally kissed the complainant on her lips and other parts of her body, excepting her legs, that he had unprotected vaginal intercourse with her twice, that he bit her lips causing it to bleed, he punched the complainant repeatedly, including in the right orbital area, her head, and her arms as she attempted to block him.
During the course of this did the Accused choke the complainant? Did her punch the complainant?
[188] As set out above, I find based on the evidence of the complainant that the Accused punched her repeatedly, including her face, head, and arms as she was trying to defend herself. The blows were of such force that bruising around the right eye was still present 2 weeks later, when police took photos, constituting bodily harm. [189] Further, I find based on the physical evidence of bruising on either side of her neck as well as the complainant’s testimony that the Accused choked the complainant by the use of both hands around her neck, and that he applied sufficient force such that she could not breathe, for a matter of seconds.
Did the Accused do so intentionally or did the complainant consent?
[190] Having found there to be choking and bodily harm, it is not necessary to establish the complainant did not consent. However, she clearly did not consent to the sexual touching and communicated this to the Accused by a variety of means, including physical resistance resulting in bite and scratch marks to the Accused, breaking his glasses, telling him to stop, yelling, crying, and calling for help. [191] The Accused’s actions in punching the complainant were intentional. He punched her repeatedly and over the course of the assault when she threatened to call police, in an attempt to make her submit. [192] The choking was intentional as well. The force used was sufficient to cause bruising and to stop air flow. It was not accidental and was meant to silence her, with the Accused telling her to, “shut up, bitch”.
Did the Accused physically or otherwise restrain the complainant from leaving her bedroom?
[193] In the early hours of November 24, 2021 the Accused prevented the complainant from leaving her bedroom. He stood in front of her and pushed her down 4 times. After the last time, he took her out of the room to R.K.’s door, then back in the room, closing the door behind them. [194] With each push, he physically restrained the complainant from accessing the door and leaving the room. The restraint was repeated and over a sufficient amount of time to satisfy the actus reus of the offence. [195] The Crown has met its onus in establishing the above facts beyond a reasonable doubt. Therefore, having already acquitted the Accused on count 6, I find him guilty of counts 1-5, as charged.
Released: November 30, 2023 Signed: Justice V.L. Brown