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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 12 02 COURT FILE No.: 22-70007888 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Marcial Katimaba MANIGBAS
Before: Justice C. Faria
Heard on: March 14, 15, May 24, June 20, September 5, November 15, 2024 Reasons for Judgment released on: December 2, 2024
Counsel: David Spence, counsel for the Crown Mitchell Hawkes, s.486 counsel for the defendant Marcial Katimaba MANIGBAS Marcial Katimaba MANIGBAS, on his own behalf
I. Introduction
1Marcial Katimaba Manigbas, a superintendent in a residential building in Toronto is charged with sexually assaulting TN, a tenant of the building, on November 9, 2022, contrary to s. 271 of the Criminal Code.
2On the first day of his trial, March 14, 2024, three voir dires were decided orally regarding a witness interpretation issue. I released my reasons on September 16, 2024.
3The trial proceeded on March 15, 2024. The Crown called its only witness, the complainant to testify. As Mr. Manigbas is self-represented, Mr. Mitchell Hawkes, as s. 486 counsel, cross-examined the complainant, and her evidence was completed that same day.
4However, Mr. Hawkes raised the possibility that Mr. Manigbas may have a s. 10(a) and 10(b) Charter argument to make. I appointed Amicus, Mr. Dan Paton to assist me with that issue.
5The trial was adjourned until Mr. Paton received and reviewed disclosure. In addition to ss.10(a) and 10(b), Mr. Paton made further inquiries regarding a possible s. 7 Charter violation. Mr. Paton concluded there was no basis for any Charter application. Mr. Manigbas agreed and did not proceed with any applications. The Crown closed its case on September 9, 2024.
6Mr. Manigbas testified in his own defence on November 15, 2024.
II. Issue & Legal Principles
7The issue in this case, is whether, the Crown has proven beyond a reasonable doubt, that Mr. Manigbas touched TN in her genital area and grabbed her breast without her consent.
8Sexual assault is the direct, or indirect, intentional touching of a person, in circumstances of a sexual nature, without their consent to that sexual activity, knowing they do not consent to that sexual activity.
9Consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question, s. 273.1(1).
10As in every criminal case, the onus rests upon the Crown to prove guilt beyond a reasonable doubt which is inextricably linked to the presumption of innocence. The onus rests with the prosecution throughout the trial and never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.
11When I consider what evidence to accept, I must consider the credibility and reliability of every witness. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be tested in the light of all the other evidence presented.
12I instruct myself not to approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction. I caution myself thus so as not to reach any conclusions based on misconceptions or myths.
13As the cross-examination appeared to raise the issue of motive, I instruct myself that the accused is not required to demonstrate the complainant had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a complainant is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility”.
14As Mr. Manigbas testified, I must apply the W.D. test:
- First, if I accept Mr. Manigbas’ evidence, I must acquit him.
- Second, even if I do not accept Mr. Manigbas’ evidence, but it leaves me with a reasonable doubt, I must acquit him.
- Third, even if Mr. Manigbas’ evidence does not raise a reasonable doubt, I must consider all the evidence to satisfy myself that that Crown has met its high burden and proven all the essential elements beyond a reasonable doubt.
III. Evidence & Analysis
TN Evidence
15TN lived alone in a second floor junior one bedroom apartment in a seven-floor apartment building in Toronto in 2022. She testified that on Wednesday, November 9th of that year, she called Mr. Manigbas, the superintendent, to open the storage room for her. She had returned from Japan and needed access to the storage space to store her suitcase and her air conditioner (AC) for the season.
16She testified Mr. Manigbas wanted to know why she needed the access, and if he could help her. She told him why she needed the access but told him she did not need his help. She testified Mr. Manigbas made her feel fearful and uncomfortable.
17Shortly after the call, and after she started to dissemble the AC, Mr. Manigbas knocked on her door. When she opened the door, Mr. Manigbas wanted to help with the AC, so she went into her apartment, and he followed her in. She felt Mr. Manigbas had the authority to enter her apartment as the superintendent.
18Once inside the apartment, TN testified Mr. Manigbas grabbed her tightly from behind. He put one hand on her shoulder and the other hand on her genital area over her clothes. He grabbed her breast area hard for about a minute, which she described as “kneading”. He tried to reach under her clothes. She testified she turned, pushed him away, asked him what he was doing, and told him to stop. In cross-examination, she remembered she slapped him as well.
19Mr. Manigbas stopped and released her. He told her he had missed her while she was away. She shouted at him, and he left, telling her he had to do something outside. She told him not to return.
20TN testified she took the AC and her suitcase to the storage room and called Mr. Manigbas a second time to tell him she was finished with the storage room, he could lock it, and he should not return.
21TN testified Mr. Manigbas returned to her apartment, nonetheless. He knocked, and when she opened the door, she confronted him again. He apologized. He repeated he had missed her.
22She saw Mr. Manigbas later that evening at the entrance of the building and again confronted him with the “bad things” he had done to her. He said, “I know”. She said she told him she was going to report him to police or management.
23TN testified the next day she went to the rental office administrator but was scared to speak to the person. Instead, she asked for the email address of the head office management and asked if there were any apartment vacancies available in other buildings, but there were none. TN was concerned that this was not “rape” and she was not close enough to the administrator to be comfortable telling her what happened.
24After speaking to a co-worker, TN called the police to report the event on November 14, and provided a statement to police on November 16. She sent an email detailing the event to a building administrator on November 18. TN also testified she stopped working shortly after this event, on November 23 because of a workplace injury that caused a severe concussion and a dislocated shoulder.
25During cross-examination, TN agreed Mr. Manigbas had attended her apartment before to disassemble the AC over the years, and he had used a large dolly to transport the AC. However, she explained that she could disassemble it herself, and though the AC was large, it had wheels, and she had her own small dolly. She agreed Mr. Manigbas wanted to use a screwdriver to unscrew a “square”, but that she told him she did not need to do that. She told him again she would disassemble the AC herself and he should not return. However, Mr. Manigbas left and came back. He tried to help her “continuously”.
26Business records, and a series of still photos taken from the building’s CCTV system were put to TN which she accepted:
- TN made several requests for apartment repairs between 2018 and 2021. Sometimes it was Mr. Manigbas who attended to make the repairs. (Exhibit 3a-3e). Sometimes she called Mr. Manigbas directly to make repairs.
- TN called Mr. Manigbas at 1:42 p.m. the first time to ask him to open the storage room, and at 2:22 p.m. the second time to tell him she had returned the items to the storage room, and he could lock the room. (Exhibit 4).
- Mr. Manigbas was on her 2nd floor hallway on November 9, 2022:
- At 2:02 p.m. turning toward TN’s apartment. (Exhibit 5)
- At 2:02 p.m. standing close by TN’s apartment door. (Exhibit 6)
- At 2:11 p.m. walking away from TN’s apartment (Exhibit 7)
- At 2:12 p.m. walking toward TN’s apartment with a screwdriver in his hand. (Exhibit 8)
- At 2:12 p.m. walking to TN’s apartment for the second time. (Exhibit 9)
- At 2:16 p.m. walking away from TN’s apartment. (Exhibit 10)
- At 2:16 p.m. walking into the stairwell. (Exhibit 11)
Manigbas Evidence
27Mr. Manigbas testified he did not touch TN at all.
28He confirmed TN called him to open the storage locker to put in her AC and her suitcase. He confirmed he offered to help her. He denied she told him she did not need his help. He attended her apartment, she opened the door, and he went in. He testified he needed to unscrew a “square” and asked her for a tool she did not have, so he left to go get it. He returned with a screwdriver. Mr. Manigbas entered as an exhibit a screwdriver like the one he used that day (Exhibit 12). Mr. Manigbas testified he then left again to get a dolly to transport the AC to the storage room but got a second call from TN telling him she had already transported her belongings to the storage room and did not want him to return.
29Mr. Manigbas described his interaction with TN like any interaction with a tenant.
30He described the AC as heavy, like a small fridge, and though it has wheels, it would be difficult for TN to transport. He testified he sold TN the AC, and when she asked for a discount, he offered to assemble and dissemble it for free, rather than charge her $25 for the service. He made this offer to other tenants who were students or old, though TN was neither.
31In his opinion, disassembly of the AC requires knowledge and tools and TN had neither though he acknowledged she had watched him disassemble the AC before, and she had helped him before. On this occasion, he said TN got a rope to help him tie the AC.
32In cross-examination, Mr. Manigbas testified he never had a problem with TN as a tenant, he was friendly with everyone, he did not know TN had gone to Japan, and had no feelings for her. He denied he grabbed her, that she shouted at him, and confronted him, and that he had apologized. He denied seeing her later in the day, being confronted again and apologizing a second time.
Analysis
33If I accept TN’s evidence, all the elements of a sexual assault are made out. The Crown submitted TN was both credible and reliable as her evidence about the “disgusting event” as she described it, was unshaken. He submits any inconsistencies were peripheral and explained by the fact TN experienced a concussion shortly after the event. He submits her evidence should be accepted. Furthermore, the Crown submits Mr. Manigbas’ evidence in many ways corroborates TN’s version of events. He submits Mr. Manigbas’ evidence was internally inconsistent, should be rejected, and it, nor anything else raises, a reasonable doubt that Mr. Manigbas sexually assaulted TN.
34Mr. Manigbas submitted TN is unreliable and not credible because she was incorrect on when he attended at her apartment for the second time. She testified it was after she called him to tell him not to come back as she had put her belongings in the storage room, but the CCTV still photos demonstrate he returned to her apartment before that call.
35As a self-represented litigant, Mr. Manigbas also made submissions that are not correct in law, such as that TN’s disclosure to police a week after the incident should be held against her, that if TN was “really” sexually assaulted, she “should” have yelled or called 911, and that TN fabricated the allegations because she spoke to a friend. Mr. Manigbas also filed a summary of his submissions (Exhibit 13) which included material that is inadmissible and included comments about his character. I will not consider inadmissible material. I will focus on his submissions regarding TN’s reliability and credibility as it pertains to admissible evidence.
36TN testified in a simple and direct manner about the core allegation of the sexual assault. She was not shaken on what happened, how it happened, how long it happened for, what Mr. Manigbas did, what he said, what she did, and what she said.
37Mr. Hawkes, as s. 486 Counsel, did elicit two inconsistencies though.
i. TN got the timing of Mr. Manigbas’ attendance at her apartment wrong. Though she knew she called him twice, and he attended her apartment twice, she thought he came back after the second call. It is clear via the time stamps of the video stills that Mr. Manigbas did attend her apartment twice, but both times were before she made the second call.
ii. TN testified Mr. Manigbas grabbed her when he came to her apartment the first time, however, in cross-examination, and given the time stamps, she testified it could have been the second time he came to her apartment.
38Given the substance of the allegation, and the context of the interaction however, I find these to be peripheral issues that do not undermine the credibility and reliability of her description of the sexual assault. She was honest about not remembering timing, and specific details. She was convincing when she explained she just answered police questions and was stressed and so did not narrate the entire event to the police. She was forthcoming about the concussion she sustained after the event and that it affected some of her memory.
39I find no basis to consider that TN fabricated her evidence or had a motive to lie. This factor does not affect my findings either way.
40Some of Mr. Manigbas’ evidence supports TN’s evidence and perception that he did not take her seriously, did not listen to her, and insisted on helping her with her AC. For instance, Mr. Manigbas testified:
- he “assumed” if TN called him to put the AC in the storage room, then she must need his help.
- he “assumed” TN needed help, because “she is a lady”, and she would not have the knowledge, or the tools required to do the job, even though he testified she had seen him do the job several times before and had helped him do it before.
- that though she might be able to do the job, she would make a “mess, or break something”.
- though “tools” were required to do the job, he went to her apartment without any tools, he thought she had tools and asked her for them.
- when he attended her apartment, he walked in because he “knew” she needed his help.
- TN required his help and the large dolly to move the AC to the storage room but testified he was not surprised when she called him to say she had done it all by herself, 6 minutes after he had left her apartment to get the dolly to do what he testified she could not do.
41I find that Mr. Manigbas attended TN’s apartment twice though she told him not to. He entered her apartment though she did not want him to. He insisted on helping her with her AC unit though she told him not to.
42Given the timing of the video photo stills, and the substance of the TN’s evidence as to what happened inside her apartment, I accept her evidence that while Mr. Manigbas was in her apartment, he grabbed her from behind, touched her genital area and grabbed her breast without her consent.
43Mr. Manigbas’ evidence was facile in his insistence that TN was helpless and needed him. He was dismissive of her ability and focused on his “professional” experience. His reason for providing TN with a “free” disassembly service did not coincide with the reasons he provided other tenants with this service. He was insulting about TN’s appearance compared to a celebrity. I reject his evidence, and his submission that TN is unreliable because she made a timing error.
IV. Conclusion
44I accept TN’s evidence that Mr. Manigbas touched her genital area and grabbed her breast without her consent. I do not accept Mr. Manigbas’ denial that he did not touch TN. His evidence does not raise a reasonable doubt, and on the totality of the evidence I do accept, I have no reasonable doubt Mr. Manigbus sexually assaulted TN.
45I find Mr. Manigbas guilty of the charge.
Released: December 2, 2024 Signed: Justice Cidalia C.G. Faria