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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-06-14

Court File No.: Newmarket 17-01242

Between:

Her Majesty the Queen

— and —

AFFS

Judgment

Case heard: February 12, 13, 14, April 14, 2018

Delivered: June 13, 2018. Written Reasons Released: June 14, 2018.

Counsel:

• Mr. Martin Dionne — counsel for the Crown
• Mr. Sina Shabestary — counsel for the defendant

Decision

KENKEL J.:

Introduction

[1] The complainant met the accused when she went back to finish high school. She was 20 and he was 15. Their relationship was troubled from the start, but they continued on and off for 7 years. The couple had two children together. After they became parents, the complainant wanted the accused to settle down to regular work to support the family. The younger accused wanted to continue to have fun with his friends. Their disputes included a number of serious incidents which led to the eight charges before the court.

[2] AFFS is charged with:

• Hamilton – Assault with a Weapon s.267(a)
• Hamilton – Threatening to Cause Death s.264.1(2) x 2
• Richmond Hill – Break and Enter s.348(1)
• Richmond Hill – Sexual Assault s.271
• Aurora – Threatening to Cause Death s.264.1(2)
• Aurora – Assault s.266
• Aurora – Mischief s.430(4)

[3] Credibility is the central issue at trial. The instruction in R v WD, [1991] 1 SCR 742 assists in applying a reasonable doubt analysis in this context.

Hamilton 2012

[4] The complainant testified that her relationship with AFFS was troubled from the outset. In the first few months there was an incident at a Tim Hortons restaurant where the accused grabbed her by the arms and held her during an argument. Her arms were bruised afterwards. She testified that AFFS threatened to kill her and called her a whore. Despite that, she kept seeing him and there were further altercations over the years.

[5] She moved to Hamilton in Sept of 2012 in part to force herself to separate from the accused. She was 7 or 8 months pregnant. The accused helped her move along with others. During an argument as she unpacked, the accused became so upset that he grabbed a filet knife and threatened to kill her. He pointed the knife at her and threatened to kill her daughter and threatened to "cut his unborn son out of her stomach". She called his family and gave him the phone. She didn't call the police as he was on a house arrest bail to be living elsewhere and she didn't want him to be in trouble for being in Hamilton. The accused was still angry after speaking with his family, so she called a friend who had moved with her to the same building. The friend BL came down and tried to convince the accused to put the knife down. Both women were in the late stages of pregnancy. The accused eventually put down the knife, but he took her wallet and left the apartment. Her friend locked the door behind him. The accused waited in the hallway and the complainant worried that someone might call the police so she went out and let him back in after he promised to be calm. The incident lasted about 20 minutes.

[6] The complainant explained that although they argued she found the notion of leaving him a lot harder than staying with him. She felt she generally knew what to do to keep him from being angry. They broke up many times, but she ended up going back to him each time. When they broke up she'd receive dozens of calls and texts from him to the point where her phone wasn't useable. She said, "The fight to leave was incessant, the fight to stay was what I knew". She later moved back to the Richmond Hill area and continued contact with the accused.

[7] BL is 32 years of age and has known the complainant for about 7 years. She moved to Hamilton with the complainant in the same building when they were both pregnant and seeking affordable accommodation. One evening the complainant called her. She was extremely upset and asked her for help. BL went to her apartment and found the accused AFFS yelling at the complainant. He was holding a kitchen knife. Eventually they persuaded him to put the knife down. He left the apartment but took the complainant's wallet. BL told the complainant to call the police but she refused as she didn't want the accused to get in trouble.

[8] In cross-examination, BL clarified the position of the knife. It was an upward grip but pointing towards the complainant as she'd said in her original statement. BL agreed with the suggestion that the incident was traumatic for her. She was further along in her pregnancy than the complainant. She ended up in the hospital with bleeding. She didn't call the police because her friend didn't want her to. She didn't know if that was because the complainant was about to have the accused's baby or for some other reason.

[9] AFFS testified that he went to Hamilton to help the complainant move in. Her father and uncle helped as well. He said she wanted him to stay but he was on house arrest so she got upset. He didn't threaten her with a knife or otherwise. He never saw BL at any time when he was at that apartment.

Richmond Hill January 2017

[10] By January of 2017 the two had ended their relationship. The complainant continued contact with the accused for the purpose of child access, primarily for his parents who wanted to see their grandchildren. She stated that every time she went there, "… he would threaten my life or my children's lives." During one text message conversation he mentioned an interest in having sex with her but she told him, "I'm not having sex with you". She described having bad anxiety at the time. She wasn't eating, sleeping or functioning properly.

[11] One evening she went to bed but didn't lock the door. She testified that she woke up during the night to find the accused in her bed with his hands down her pajama pants. She was, "half awake" and told him to stop. He was upset that she wasn't receptive. He later left the room but she did not lock the door or take any steps to ensure he left the house. After a while he returned and tried to get her in the mood by touching her about the body. She thinks he was likely clothed but she didn't know what he was wearing because she, "didn't really look at him". She was vague as to the timing of the incident saying it lasted, "probably for an hour". It ended when he left again. She thought he was frustrated with her lack of response.

[12] AFFS testified that he never broke into the complainant's home and did not sexually assault her as alleged. In examination-in-chief he described an earlier incident in November 2016 in which the complainant left the door open for him and asked him to come over. When he got there she told him she was sexually assaulted in a club. He didn't believe her. He said she took his hand and placed it in her crotch area. He smelled a "strong odour" from her which "threw him off" having sex with her. He said she told him she had an infection from being sexually assaulted that day. In cross-examination the accused agreed he provided this information about something he says happened in November of 2016 to illustrate his point that the complainant was generally a promiscuous and unfaithful person.

Aurora February 2017

[13] The last time the complainant saw AFFS was at a chance meeting at a bar called the DNA Lounge in Aurora. She was there to celebrate her friend BL's birthday. When she got there she was told that AFFS happened to be in the bar. BL encouraged her to stay and simply not talk to the accused. At one point when she was coming out of the women's washroom the accused was coming out of the men's room. He walked up to the complainant and spat in her face. She ignored him.

[14] She went to the coat check area a short time later and the accused approached her with an angry look. She grabbed him and pushed him away from her. The bar bouncers intervened and she went outside to have a cigarette. He remained inside. Once she was back in the bar, the accused yelled at her that he was going to kill her and that something was going to happen when she left. She found her friend BL and BL walked her to her car.

[15] After she reached her car the accused ran over and started kicking the vehicle. She drove away. The photographs in exhibits 1A and 1B show damage to the right rear fender and door panel that she attributes to the accused. She explained in cross-examination that the damage near the rear passenger side window was there prior to the incident and was not caused by the accused. She did not immediately report the incident to the police as it was, "her word against his".

[16] BL wasn't sure when the complainant arrived at the bar. During the evening she saw the complainant return from the washroom area "extremely upset" and angry. The complainant told her that the accused had spat in her face. In cross-examination, BL agreed that she didn't see spit on the complainant's face but she did see the complainant wiping her face. Later that night, she saw the complainant and the accused in a scuffle by the front door. She saw the complainant push the accused away from her with both hands. The bouncer quickly intervened. After that she heard the accused calling the complainant names inside the bar and she heard him say, "you're dead to me". She went out the back with the complainant and saw the accused run towards the complainant's car. She saw the accused "attack" the complainant's car, kicking it while he was yelling. From her viewpoint she couldn't see whether the accused got to the passenger side of the car but she did see him running after it. BL denied reviewing her evidence with the complainant. She explained she was told not to speak about the case by the police and she followed that advice.

[17] AFFS testified that he was with friends playing pool that evening. He saw the complainant enter the bar and that made him nervous. He went to the washroom and when he exited the complainant confronted him and said, "Are you with this bitch?" He told her to "go fuck herself" and walked away. In cross-examination he said she grabbed him by the neck from behind and hit him in the face multiple times. Later he described being grabbed by the neck and punched in the back of the head multiple times.

[18] He was at the front outside the bar when the complainant went to her car in the back. In cross-examination he agreed he was angry about being hit but he "didn't know what to do". He agreed he wanted to confront her about the altercation inside but he didn't say a word when she left and he didn't go near her car.

Credibility Generally

[19] I've first considered the evidence as a whole and make the findings of fact that follow in that context. Specific findings with respect to each count are set out below. Considering the first step in the WD analysis, I find the accused was not a credible witness. Much of his evidence was illogical and the central points were contradicted by credible external evidence.

[20] In relation to the prior incident at Tim Horton's shortly after their relationship began, the accused denied that they argued. He testified that it was another male who got out of a car, spoke with the complainant outside the restaurant, physically "twirled her around" and then left. The man involved was bald and had tattoos. AFFS said he later found out who that man was but he didn't identify him in court. This alternate scenario was not put to the complainant in an otherwise careful cross-examination and is contradicted by the credible evidence of the complainant.

[21] The accused's description of an incident in November of 2016 was plainly an attempt to discredit the complainant and put her character in a negative light. The accused conceded as much in cross-examination. His evidence that the complainant called him over to complain about a sexual assault then immediately wanted to have sex with him wasn't logical or credible. His suggestion that she wanted to have sex with him to make him think that he was the one who gave her an infection was ridiculous. Thankfully none of these graphic details were put to the complainant in cross-examination. This attempted attack on the complainant's character was offensive and shows a significant animus towards her. I find this detracts substantially from the credibility of all of his evidence.

[22] The accused told the court in examination-in-chief that the complainant, "Tried to destroy me every chance she had." This statement is plainly contradicted by the fact that the complainant did not contact police at the time of the three incidents she described. The accused also testified that the complainant and the witness BL were "out to get him" from the moment he first met BL years ago. The credible evidence at trial shows the opposite. BL didn't call the police despite the very dangerous situation she witnessed in Hamilton. She didn't call after the incident in Aurora. Evidence led by the defence showed that the witness BL and the accused were on friendly terms up to the night of the incident at the DNA lounge where the accused helped BL find her cellphone. The accused's suggestion of an ongoing animus against him by both of the Crown witnesses finds no support in the evidence. Further, if both the complainant and BL were "out to get him" it's not logical that he would continue that relationship.

[23] The accused's evidence with respect to the incidents at the Hamilton apartment and at the Aurora DNA Lounge was contradicted by credible external evidence. I'm unable to accept his evidence in relation to those incidents and find that his testimony could not reasonably leave a doubt with respect to those counts either alone or in combination with any other evidence. As the accused was not a credible witness generally, I find I am unable to accept his evidence with respect to the Richmond Hill allegations. I'm mindful though that rejection of the accused's evidence adds nothing to the Crown's case and does not lead automatically or inevitably to acceptance of the complainant's evidence.

[24] The observation that it wasn't logical for the accused to stay in the negative relationship he described also applies with stronger reason to the complainant. It doesn't make sense that she would remain in a relationship of violence even after a very serious incident where she was threatened with a knife. Of course the actions of parties in troubled domestic relationships are not governed simply by logic. Often those involved have deeply conflicted concerns and emotions and at times they act in an inconsistent manner or contrary to their own best interest. That doesn't mean though that all inconsistencies may be disregarded simply because of the domestic context.

[25] I agree with the defence that the complainant was at times a difficult witness. She described her struggle with anxiety and it's plain that she found the extended discussion of her relationship in intimate detail troubling. However, she was responsive to questions and generally had a detailed memory of the events she described. Given her circumstances and the difficult nature of the evidence it's not plain that her demeanor in court reasonably detracts from the credibility of her evidence. What deficiencies there were in her testimony were made up for by the presence of confirming credible external evidence with respect to all but two of the counts.

[26] The defence conceded in submissions that BL was a "great witness". I agree she did not suffer from the same frailties as the complainant likely due to her limited role as a witness to two particular events. She is a friend of the complainant but maintained an independence from her such that she was plainly on friendly terms with AFFS even up to the final incident at the DNA lounge. There was nothing in her testimony or the credible evidence as a whole that could support the defence assertion that she colluded with the complainant to make a false report to the police.

[27] The detailed cross-examination of the complainant revealed no inconsistency of consequence in the complainant's evidence either internally or when compared to the evidence of BL. It's perhaps telling that the differences cited in defence submissions were minor. For example, in Hamilton whether the complainant called BL or sent a text is a minor detail now reasonably lost to the passage of time, not a "grave discrepancy". The credible evidence shows that either way BL attended the apartment immediately afterward.

[28] The defence took issue with the complainant's report of injury from another uncharged occurrence and they didn't find a record of that injury at a particular hospital. Without knowing more about the nature of the incident and the hospital records system it's hard to determine what to make of the alleged discrepancy. I don't find her testimony on this point and the evidence on this issue reasonably detracts from her credibility at this trial. The point of the lack of a hospital record was to show that the complainant exaggerates or even fabricates her claims, yet most of her evidence with respect to the allegations in this case is supported by external evidence and her complaints are limited in scope bearing no indication of exaggeration.

[29] The evidence of the complainant and the witness BL was internally consistent, consistent as between them and consistent with the police photographs taken in relation to the Aurora counts. I find both witnesses were credible and reliable witnesses. I have some concern with respect to particular frailties in the complainant's evidence with respect to the Richmond Hill counts which will be explained below.

Credibility – The Hamilton Incident

[30] The complainant's evidence with respect to the Hamilton incident was consistent with the evidence of the witness BL. Although the defence notes they had time to collaborate on a story, there was no evidence in cross-examination that either witness varied her testimony from her original statement to the police in any significant way. The defendant's testimony that BL wasn't even there was never put to her in an otherwise very thorough cross-examination. The defence argues that the general assertion the incident was a fabrication was sufficient notice of the accused's contradictory testimony in relation to BL. That submission however is inconsistent with the actual cross-examination of that witness where she was questioned closely on the specifics of her observations in the apartment including a review of her actions, her statements and even an extended review of the position in which the accused held the knife. Implicit in all of the questions was an acceptance that the witness BL was present at the time.

[31] There was no apparent motive for BL to fabricate evidence against AFFS. Both BL and the complainant could have called police that night in Hamilton. If either Crown witness was "out to get him" that was the perfect opportunity as he was violating an outstanding bail order just by being there. BL respected the complainant's wish not to call the police after the accused calmed down. BL's evidence was detailed, given in a neutral fashion and internally consistent. It was also consistent with the evidence of the complainant. I find the Crown has proved they were both credible witnesses.

[32] By his own admission, the accused was breaching terms of a court order at the time of this incident. His evidence on the Hamilton charges was contradicted by the credible evidence of both of the Crown witnesses. AFFS was not generally a credible witness and I find I can place no weight on his testimony on this count.

Credibility – Aurora DNA Lounge

[33] The suggestion that the complainant confronted the accused at the washroom and said, "Are you with this bitch?" was never put to the complainant in cross-examination. While she was asked whether she hit him when she pushed him away in the altercation by the front door, the accused's assertion that she grabbed him from behind by the neck and either hit his face or punched him in the back of the head multiple times at the washroom area was never put to her. The accused's evidence with respect to the events inside the bar was illogical and internally inconsistent. His account was inconsistent with the credible evidence of BL who saw the complainant as she returned from the washroom and found her upset and wiping her face. The complainant's demeanor and the fact that she was wiping her face are circumstances that are consistent with her evidence.

[34] In cross-examination, the accused denied he went outside to chase after the complainant when she left. He agreed he didn't have a car there that night. He conceded he was angry. While he denied having any contact with the complainant's car, his evidence was contradicted by the credible evidence of the complainant, the consistent credible evidence of BL and the photographs showing the damage to the complainant's car.

[35] The complainant's evidence with respect to the incident at the DNA lounge was internally consistent, consistent with the evidence of BL and consistent with the photographs taken of the damage to her vehicle. I find the Crown has proved her evidence with respect to this incident was credible and reliable.

Credibility – The Richmond Hill Incident

[36] With respect to the allegation of break and enter and sexual assault in January of 2017, the complainant testified that she wasn't sleeping, eating or functioning properly at that time due to anxiety. She mistakenly left the door to the home unlocked one evening and later awoke to find the accused in her bedroom. He wasn't supposed to be in her home at the time. She didn't call for help or alert others in the house to the danger of the accused being there even though her mother and brother were both in the home. The complainant testified that she "half woke up" while he was touching her. He left, but she didn't lock the door or take any steps to ensure he couldn't return. She went back to sleep with the door still unlocked. She said he returned and came back into her room then touched her further in an attempt to get her interested in having sex, but she declined. She was unable to provide any details about what was said, whether he was fully clothed, what he was wearing. Despite the hour long encounter in two parts there was little detail about what the accused did or said beyond the general notion of touching about her body. The evidence doesn't appear sufficient to explain an interaction over the time described. The complainant explained she was "running on fumes" at that point indicating extreme fatigue. That circumstance along with the limited nature of her evidence leaves a concern about the reliability of her testimony in relation to this incident.

[37] When answering questions about this allegation in cross-examination the complainant was guarded and difficult. She expressed exasperation with defence counsel for no apparent reason and at times angered quickly without provocation. This was in contrast to her demeanor during even the difficult portions of her testimony regarding the other two incidents. Her evidence on these counts was inconsistent on small points but the central assertions appeared consistent with her original complaint to police.

[38] As the defence acknowledged in submissions, the complainant is not required to raise a "hue and cry" after being touched in this manner. There are many circumstances that can reasonably explain a delayed complaint to police in this context. The former doctrine of recent complaint as a legal rule no longer exists in Canada and nothing can or should be made of the lack of complaint after the incident based on stereotypical assumptions about how persons should react to sexual assault – R v DD 2000 SCC 43 at para 69.

[39] While the failure to complain to police of others immediately afterwards is of no significance, it's not plain that the complainant's actions at the time the accused was discovered in her room are removed from the credibility analysis by the same rule. To scrutinize only the actions of the accused at the central time and disregard the actions of the complainant would be unfair. At the time of this alleged incident the complainant was no longer in a relationship with AFFS and she no longer had any reason to want to protect him. He had no reason to be in her house that evening. While she said he made threats towards her when she visited his family with the children, that evidence was vague and whatever was said did not deter her from visiting that home or having contact with the accused. In that context, it doesn't make sense that she would choose not to alert her brother or her mother to the presence of the accused in the home when she first became aware of his presence. Given what she said happened, after he left the room it doesn't make sense that she would take no steps to lock him out or ensure he'd left the home. When he returned again there doesn't appear to be any reason why she again failed to alert her brother and mother of his presence particularly given the prior alleged assault.

[40] The accused was not a credible witness and I am unable to accept his evidence on this count to the exclusion of the complainant's testimony. The complainant was a credible witness but I have concerns about the reliability of her evidence with respect to this alleged incident. Her demeanor was different when testifying about these allegations and her evidence was vague, in contrast to the detail she was able to provide with respect to the other two incidents. Given her evidence as to her mental and physical state at the time and her lack of a detailed memory of the event I find I have concerns about the reliability of her evidence on these counts. I'm mindful that she was otherwise a credible witness overall and the remainder of her evidence was supported by credible external evidence where that was available, but even making allowance for the intimate nature of the touching described and the added difficulty that might present, I still find that I'm left with a reasonable doubt on these counts.

Conclusion

[41] Considering all of the evidence as a whole, I find a reasonable doubt remains on counts 4 and 5. I can find no credible evidence that reasonably could leave a reasonable doubt on the remaining counts. The accused is found guilty on counts 1, 2, 3, 6, 7, 8. Counts 4 and 5 are dismissed.

Verdict Delivered: June 13, 2018.

Written Reasons Released: June 14, 2018.

Justice Joseph F. Kenkel