Court File and Parties
Court File No.: CR-15-40000254 Date: 2016-04-29 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Andrew Medford, Applicant
Counsel: Frank Schembri, for the Crown Jeffrey Halberstadt, for Andrew Medford
Heard: April 4-7, 2016
Reasons for Judgment
Carole J. Brown, J.
[1] The accused, Andrew Medford, comes before this Court on a five count indictment. The counts, all allegedly committed in Toronto on July 15, 2011 and involving M.N., are as follows:
- did in committing a sexual assault use a weapon, namely knife contrary to section 272(1) of the Criminal Code of Canada ("Code");
- with intent to enable or assist himself to commit an indictable offence, namely sexual assault with a weapon, choked M.N. (section 246 (a));
- did by word of mouth, knowingly utter a threat to cause bodily harm (section 264.1(1)(a));
- did commit an assault (section 266);
- did possess a weapon, namely knife, for the purpose of committing an offence (section 88(1)).
[2] Mr. Medford elected trial without a jury.
The Principles To Be Applied
[3] The principles to be applied in this case are the same as those to be applied in any criminal trial.
[4] In this case, Andrew Medford is presumed to be innocent, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt.
[5] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.
[6] It is not sufficient to simply determine that Mr. Medford is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
[7] Mr. Medford has chosen not to testify, which is his right. In assessing the credibility of the witnesses in this case, as Mr. Medford has not testified, the principles articulated by the Supreme Court of Canada in R v W. (D.), [1991] 1 S.C.R. 742 are not applicable. Accordingly, I must only consider whether the rest of the evidence that I do accept proves Mr. Medford's guilt beyond a reasonable doubt.
[8] Pursuant to section 276, any evidence that the complainant has engaged in sexual activity, including whether she is a sex worker, is inadmissible, and is not to be taken into account in determining consent or credibility.
The Evidence
Admissions of Facts Pursuant to Section 655 of the Code
[9] At the commencement of trial, counsel provided an Admission of Facts pursuant to section 655 of the Code. The admissions are as follows:
- The Sexual Assault Kit was conducted on M.N. at Mount Sinai by Jessica Potvin, a registered nurse. Vaginal smears, vaginal swabs, oral swabs, rectal swabs, rectal smears were obtained and turned over to the Toronto Police Service who in turn sent the samples to the Center of Forensic Sciences (hereinafter the CFS). The items were examined by the CFS and the findings in relation to those items are contained in the report dated October 3, 2011 by Forensic Biologist Kim Sharpe an expert in the identification, comparison, interpretation and analysis of DNA. The report is exhibit 3 on these proceedings.
- The condom, originally seen by D.C. Al-Khatib at 787 Vaughn Road Toronto & seized by D.C. Smissen of the Toronto Police Forensic Identification Services on July 15, 2011 was swabbed for the presence of DNA and the condom and swabs were submitted to the CFS. The swabs were examined and a DNA profile was generated from the genetic material by the CFS and compared against a buccal sample of M.N. and Ashton Cator. The findings of the CFS are contained in the report dated October 3, 2011 by Forensic Biologist Kim Sharpe an expert in the identification, comparison, interpretation and analysis of DNA.
- The condom originally seen [sic] D.C. Al-Khatib at 787 Vaughn Road Toronto & seized by D.C. Smissen of the Toronto Police Forensic Identification Services on July 15, 2011 was swabbed for the presence of DNA in the condom and swabs were submitted to the CFS. The swabs were examined and a DNA profile was generated from the genetic material by the CFS and compared against a blood sample of Andrew Medford. The findings of the CFS are contained in the report of Forensic Biologist Diana Polley an expert in the identification, comparison, interpretation and analysis of DNA. Her findings are contained in her report dated March 20, 2015. The report is exhibit 4 on these proceedings.
- On March 21, 2016, Forensic Biologist Kim Sharpe provided an e-mail responding to a question with respect to the DNA. The e-mail is exhibit 5.
- There is no issue with continuity of any exhibit in this trial.
- The voluntariness of Mr. Medford's statement to the Toronto Police Service on February 11, 2014 is conceded.
- Andrew Medford, the person before the court, is the person named in the indictment.
[10] Based on submissions of both counsel, I note that the statement referred to in admission number 6, above, is not in evidence before me.
[11] A second Admission of Fact was introduced and reads as follows:
- Andrew Medford's height is 5 feet 5 inches.
- Andrew Medford was born on February 8, 1991. He was 20 years old on July 15, 2011.
- The photographs in exhibit 9 were taken by FIS officer P.C. Paul Soucy on July 15, 2011.
- Andrew Medford was arrested February 11, 2014.
[12] Forensic reports referenced in the admissions, and made exhibits at this trial, indicate, as regards the DNA analyses, that semen was detected on the vaginal swab from M.N., but not on the oral swab, oral smear, vaginal smear, rectal swab or the rectal smears. Ashton Cater was excluded as a source of the DNA taken from the swabs of the condom.
[13] At the time of the incident, there was no DNA in the database which matched Mr. Medford. On February 11, 2014, DNA of Mr. Medford became available. The CFS report dated March 20, 2015 concluded that Andrew Medford could not be excluded as the source of the DNA profile obtained from semen taken from swabs of the outside and inside of the condom found on July 15, 2011. He was charged thereafter with the five counts in the indictment.
[14] Below, I set forth a summary of the relevant evidence given by the witnesses in this trial, and will elaborate further in the analysis, as necessary.
The Evidence of the Crown
Constable John Smissen
[15] Constable John Smissen is with the Toronto Police Services, Forensics. He was on the midnight shift with Constable Laura Kirk when he received a call regarding a matter at 787 Vaughn Road. He received basic information that a person had heard a woman crying and screaming. When he arrived at the scene of the incident at approximately 4:25 AM, he investigated the scene of the alleged incident and secured the area with yellow tape. The incident had allegedly occurred on the southeast corner of the building under the carport on the east side of Vaughn Road.
[16] Constable Smissen testified as to the photographs which he had taken at the scene, which he began to take at approximately 4:50 AM. Forty photographs were introduced in evidence showing the location of the alleged incident, namely the carport at the southeast corner of the building, off a laneway. At the time, eight items were identified as being items of interest, including a saliva stain on the floor of the carport, a red and white condom wrapper labelled "Hardcover TM Condoms", a DuMaurier brand cigarette butt, a DuMaurier cigarette package, a used bluish green condom; a small white paper receipt; a green Post-it note, with the name "Jaymie" and a phone number. All items were fingerprinted, but only one matched the parties involved, namely the green Post-it note, which bore the fingerprints of M.N.. As the early morning became lighter, what appeared to be a necklace pendant with Japanese writing was also found at the carport.
[17] There were also photographs of the alley to the east side of the carport, leading on to Vaughn Road. The area in which a white vehicle was parked on Vaughn Road subsequently became an area of interest. The top of a box marked Rubber Industrial Gloves was found by the vehicle, although Constable Smissen did not know whether this was related to the incident. As individuals had been seen around the vehicle, the vehicle was also dusted for fingerprints. Nothing was found. On the west side of Vaughn Road, by a chain-link fence and a stairway leading down to a schoolyard, Constable Smissen found two items, a bra and underwear.
[18] He interviewed the individual, who made the 911 call the night before, advising of a woman screaming and crying. On July 16, 2011, at 9:15 AM, he attended at the apartment of "Mark" located at apartment 703, 795 Vaughn Road, the balcony of which looked down on Vaughn Road, and onto the white vehicle which was of interest and a chain-link fence next to the stairs leading down to the schoolyard. He estimated the distance from the seventh floor balcony to the chain-link fence on the other side of Vaughn Road to be approximately 140-150 feet. He also testified in cross-examination that the 50 mm lens which he used to photograph the scene gives an idea of what would be seen through one eye.
[19] Constable Smissen took numerous photos from the balcony overlooking Vaughn Road.
[20] No further items of interest were located at the scene. In cross-examination, he admitted that there may have been other items that he did not see which could have been of interest, or other items which he did not deem to be of interest based on information he had received.
[21] The saliva stain on the floor of the carport, which was swabbed, along with the used condom were sent to the Center of Forensic Sciences. That comprised his involvement in the investigation at the scene of the incident.
[22] He was subsequently informed that a suspect had been arrested. Evidence and swabs were taken and the suspect identified as Ashton Cater.
[23] In cross-examination, he admitted that they also searched for a bike and a knife, but found neither. He has no information that either the bike or knife were ever recovered.
[24] He had taken fingerprints of the scene and testified that the only fingerprint which matched the parties allegedly involved were fingerprints of M.N. on the green Post-it note. He testified that if no fingerprints were on file that matched the other items, this indicated that the individual had never been fingerprinted.
M.N.
[25] M.N. testified that on July 15, 2011, she met someone at a bar, the name of which she did not know. She met him at Dufferin and Eglinton on two occasions. The first time, it was just "hi, bye". The second time she saw him close to the bar. He went by the name "Christopher". He had been on a bicycle, the colour of which she could not remember. They had a brief conversation. He suggested they go for a walk and asked if she was working. She said that she needed to make a couple of bucks. They engaged in what she described as a "date". They walked toward Vaughn Road and talked. There was a gas station at the corner. The talk was leading to something sexual. They entered a carport off Vaughn Road which was attached to a building next to the seniors' residence and across from the schoolyard. She had never been to the carport. When shown the photographs entered as exhibits, she identified exhibit 1D as the laneway to the carport and Exhibit 1E as the carport.
[26] They went to the end of the carport near the door and started the "date". He gave her money. She is unable to recall how much. She put it in her pocket and put a blue condom on him to perform fellatio. She proceeded with fellatio. It was taking a while for him to release. He was getting frustrated and getting rougher. She was getting tired of trying to finish the fellatio. She stated that she stopped fellatio, as he was taking too long. She wanted her money and wanted to go. She admitted, in cross-examination, that she had told the police that she was Jonesing, or coming down from her crack high, needed to get another fix quickly and needed the money to do so. She admitted that when a person is in such a state, they will do whatever to get another fix. However, she testified that, depending on the circumstances, this is not always the case.
[27] She started to leave and he grabbed her. She stated that he pulled out a silver dagger and said "if I split you from your asshole to your back, maybe the open flesh will turn me on".
[28] She testified that by then, her back was turned, and she just wanted to do anything to get away. He took the condom off, threw it on the ground and there was a little penetration.
[29] He stated that he wanted to slit her from asshole to back and open her flesh. She was trying to get away. She said to herself "I'm finished, I'm done". He pulled her arm back and she resisted. He started to choke her. She couldn't scream. She couldn't tell her kids that she loved them. She thought she would die. He choked her and she lost consciousness. She does not know what happened when she was unconscious. When she regained consciousness, she realized that her clothes were off. She had been wearing a dress, a bra and underwear. She denied that she gave a statement to the police saying that he was trying to take her clothes off. She realized that her clothes were off when she awoke from being unconscious. She was being dragged across the pavement. She thought she was going to die. She saw the dagger before she lost consciousness. He was behind her.
[30] In cross-examination, she stated that she had put the condom on him before he choked her and that when she awoke it was off. She told the police that he had put his penis in her anus and her vagina and then in her mouth so that she could suck him off.
[31] Someone screamed "hey". He said "hurry up, put your clothes on". He had a knife in her back. She put her dress on and carried her bra and underwear in her hand. In cross-examination, when asked if she was wearing shoes or a ball cap, she stated that she could not recall. She does not recall anything else that happened when she was awake.
[32] When asked what happened when he was behind her, she stated that she would rather not say and that she was foggy in her head. She said that after she saw the knife, she did whatever to get herself out.
[33] She described the knife as having a grey blade and stripes in the middle, with a push switch part to release the blade. She described it as being like a Swiss Army or surgical or survival knife.
[34] She put her clothes on. They went across Vaughn Road. When they reached the other side of the road, she grabbed and held onto the chain-link fence with all her might. She identified photographic exhibit 1 X as the chain-link fence. She thought that if they went down the steps into the schoolyard, she would be done. She held on, and he finally let her go. At that point, she had her dress on and her underwear in her hand. She could not remember the colour of underwear, but, when shown in Exhibit 1 KK, she identified her underwear, and 1X as the location by the fence where she dropped them.
[35] She looked up the road and saw a police cruiser and ambulance rushing down the road.
[36] She testified that she sustained injuries to her throat and head. She went to the hospital and they examined her.
[37] She testified that she had watched the police statement that she gave. She stated that she was a diabetic. She stated that she did not remember telling the police about anything but the blow job. She was trying to be truthful. She remembers mentioning intercourse. She stated that there was a little penetration with his penis between the dagger and saying he would split her, and before the choking. She did not want penetration, but wanted to get away. He made her uncomfortable, made her feel threatened, as if she would die. She just wanted to do whatever it took to get away.
[38] In cross-examination, she admitted that she had taken a "20 piece" of crack cocaine the night before her testimony at court, which she stated helped to clear her mind. She took no drugs or alcohol the morning that she testified in court. She has had a crack problem since her father died in 2011. She also stated that her grandmother had subsequently died and that her aunt died this weekend. She quit using crack for two years, then started blaming God for taking her father and started again.
[39] She gave a statement to the police. She tried to be truthful, and stated that she would not lie. She understood that it was important to be truthful. She conceded that she could not say she was 100% truthful and stated that no one is 100% truthful all the time. She admitted to having a criminal record. In December of 2010, she was convicted of theft under, which she admitted to be a crime of dishonesty and which was a conviction that she took for a friend. She admitted that she had told the court that she had done it and therefore lied to the judge. She also admitted that she had failed to attend court although she did not know why. She did state that she was afraid of the system and the police.
[40] In July of 2014, she was convicted of possession of crack. She further admitted that she failed to comply with bail, although she cannot remember why. On April 16, 2015, she was released on bail and did not show for a preliminary hearing. There had been a provision to live with a surety although she was not living with the surety. There were restrictions. She seemed to indicate that she did not understand what those restrictions were, or what limitations had been placed on them.
[41] In cross-examination, she admitted that, in July of 2011, she had told the police that before she met the accused, she was at a friend’s place until 10 or 11. She admitted that when she went to the hospital after the incident, the nurse had asked her about the use of illegal drugs and she had stated that she had used $100 of crack at a friend’s place. She testified that she did it discreetly so that the friend did not know that she was consuming the crack. She also told the nurse that she had consumed $10 worth of marijuana. She also drank at the friend’s place and fell asleep. She was supposed to be at the bar at 8 PM and arrived at 10 PM after she woke up.
[42] In cross-examination, she was asked whether, under crack, marijuana and alcohol, one can hallucinate. She said that she had not hallucinated and would not have permitted herself to be in public if she had.
[43] She told the police that she went to a bar but she could not remember the name. She knew the bartender and the owner. She was considered a local in the area and went to the bar frequently. She went to the bar about 10 PM as she was to meet him there. She had been at a friend’s place close by and went to the bar at about 10 PM or so. She stated that she went in to the bar to order a drink and then came outside. She only had one drink at the bar.
[44] She stated that the person did not have an accent. She stated that he did not have tattoos. She said the person was neat, clean shaven, of light complexion although she could not say of what race or ethnicity, a mix of black and some other race. His hair was shoulder length and braided back with cornrows. He was not wearing anything on his head. He was wearing pants, jeans with a brand name. She described him as in his late 20s or 30s. He was approximate her size in height, 5‘9“or 5'10". He had no distinct smell. She did not notice any scars.
[45] She remembers going to the hospital after the incident. She agreed that the medical staff had difficulty getting her to agree to take an exam as she was in and out of consciousness. As regards the Jonesing, she stated that by the time she went to the bar, the marijuana and the alcohol had brought her down. She testified that she remembered penetration of the vaginal and anal areas with a penis. When questioned as to whether she told the police that that had happened before the choking which caused her to be unconscious, she stated that she was trying to get the timing correct but that everything was muddled in her mind. Also, in cross-examination, she was asked when she first saw the knife and stated that she was confused as to timing and to whether she saw it before or after penetration.
Jessica Potvin
[46] Jessica Potvin was, in 2011, a sexual assault nurse examiner, who was affiliated with Women's College Hospital, although she attended different hospitals to conduct examinations. Ms. Potvin had worked in that capacity for one year and seven months, but no longer works as a sexual assault nurse. While she was working in that area of practice, she examined approximately 100 to 150 sexual assault complainants.
[47] On July 15, 2011 at 2015, Ms. Potvin was called to attend Mount Sinai Hospital and arrived at 2100 hours. She took a history of events from the patient and documented that history in the Sexual Assault Patient Assessment Record. She noted on the form that there had been oral, vaginal and anal penetration by the penis. She further noted that no condom had been used during the assault and no ejaculation had occurred.
[48] As part of the sexual assault examination, she took samples from M.N., including a mouth swab, tube of blood, swabbing of external and internal genitalia and the anus. These samples were based on the history provided by M.N..
[49] In the Medical Health History portion of the form, Ms. Potvin noted that the complainant had diabetes. She further noted that the complainant used crack and that she was a street worker. The complainant had used crack within 24 hours prior to the assault. All information obtained came directly from the complainant.
[50] She noted injuries as set forth in the physical examination form. These included a cut on her the base of the right nipple, an area of redness on the right forearm, scabbed abrasions on the right leg and a reddened area on the left knee, scabbed linear abrasion on the right upper back and a scabbed abrasion on the right elbow. There was no active bleeding. The complaint's nose was visibly swollen and red. No swelling was visible on the neck, although M.N. complained of swelling and soreness of the neck and a sore throat. There was no trauma noted in the vaginal area or rectum. A white discharge was noted, which she stated was not meaningful as regards the alleged assault. She testified that one does not always see trauma in a sexual assault case.
[51] In order to have obtained the consent of M.N. for purposes of the examination, M.N. had to be in a meaningful state of consciousness and a sufficient state of sobriety, which Ms. Potvin deemed her to be.
Mark Messelhi
[52] On July 15, 2011, Mark Messelhi resided at 795 Vaughn Road, apartment 703. He had lived in the area for approximately 3 years.
[53] At approximately 3 AM, he heard voices on the street below, went to his balcony to investigate and saw a male manhandling a woman across the street and forcefully pushing her. He testified that he first saw them from his balcony, on the sidewalk at the left side of his building. He stated that he did not know where they came from and indicated that there are gaps between the buildings on Vaughn Road, with alleyways.
[54] The woman was in front of the man and he was forcefully taking her across the street. She was trying to get away, and he was grabbing her clothing from the back and waist up. Mr. Messelhi could hear her crying and saying "please ". They made their way across the street and he pinned her to the fence that divides Vaughn Road from the schoolyard behind. At the fence, they struggled. She was pinned against the fence and kept pleading with him. She tried to sidestep away. The encounter seemed sexual in nature. At one point, the male gestured down to the woman's skirt and tried to lift it. At one point, the male's forearm went up to her neck. She tried to get away and was slammed against the white vehicle parked on the street near the fence. He grabbed her by the upper arms; he grabbed her in a number of different areas during the incident. The incident went on for an estimated 5 to 10 minutes.
[55] He testified that there are streetlights in the vicinity and the closest was approximately 2 metres away from the incident. During the incident, he saw only the male and female and later, the police.
[56] While he was witnessing the incident, he called 911 to report the incident. The recording of the 911 telephone call was played in evidence. While he was watching the incident, the police cruiser came to the scene of the incident. The male ran down the stairs to the schoolyard.
[57] He did not note a weapon.
[58] He described the complainant as white, wearing a skirt and a blouse or T-shirt. She was slender with light brown hair. He described the male as of mixed skin, light brown, not white and not black. His hair was braided, and he wore a black skullcap or do-rag. He was lean and wore a dark shirt and slightly baggy blue jeans.
[59] He subsequently spoke with a police officer on the morning of July 15 and again in the early afternoon. He believes that they had come back in the afternoon to take photographs.
[60] In cross-examination, he indicated that he had, in the first interview, described the male as black, approximately 6 feet tall, medium build, between 25 and 32, wearing a dark shirt, faded blue jeans and running shoes. He stated that while the police officer was there, the police were investigating a male who had walked into the scene of the incident. When asked about his indication to the police that he was 100% certain the individual was the same person, Mr. Messelhi responded that he thought it was the same person, as they looked similar and looked to have similar characteristics, but did not recall saying to the police that he was 100% certain. When asked about the police notation that he had told them that the male was black or mixed black, he testified that there are differing degrees of black and not black. He further testified that someone can be of mixed light brown skin and you can call them black or mixed black. Someone can be brown but be described as black. He used the term "mixed black" to differentiate.
[61] He confirmed that he did not see a knife or blade. There was a moment when he thought the male was holding something in his hand when his arm went up to the woman at the fence, but he could not tell and did not see a weapon. Accordingly, he did not describe it to the police. He further indicated that he had not seen a bicycle chained anywhere.
Shady Al-Khatib
[62] Detective Constable Shady Al-Khatib is with the Toronto Police Services. He received an urgent radio call, which he termed a "hotshot" call on July 15, 2011. He was provided information that there was a male in a stairwell accosting a female who was saying "please don't". The male was black or mixed, approximately 6 feet tall, wearing a do-rag.
[63] He attended it 795 Vaughn Road to speak with Mark Messelhi. He believed they were standing outside his building at street level, although Mr. Messelhi had testified that they were in his unit on the seventh floor. He took a statement and, while he was doing so, a male was walking by into the crime scene. Another constable with him, PC Castro, apprehended the male and Constable Al-Khatib assisted him. The man's name was Ashton Cater. Mr. Cater was arrested and handcuffed. After the arrest, Constable Al-Khatib returned to the interview with Mr. Messelhi. Constable Al-Khatib confirmed that the person arrested appeared to match the description given of the male involved in the incident.
[64] Prior to conducting the interview, he investigated the laneway and the alcove and found items of interest, including a condom and two spots which appeared to be spit. He recalls the condom was blue. He told another police officer to secure the items before the photographer arrived. He was present when Forensics arrived.
[65] In cross-examination, he admitted that no knife or bicycle had been found and that it was not in his notes.
Michael Skelhorne
[66] Constable Michael Skelhorne confirmed that he was involved in an incident involving M.N. on July 15, 2011. At 2:37 AM, he received a radio call regarding trouble at 795 Vaughn Road. The information received indicated that a male had observed another male involved in what appeared to be an assault. The male observed was black or mixed, with a dark shirt and jeans.
[67] Constable Skelhorne arrived on the scene at 2:38 AM. He observed the complainant walking on Vaughn Road. She was crying, stumbling along the road and sobbing. She had shoulder length hair and was wearing a dress. He convinced her to go to the side of the road where she could talk with the police. She gave a narrative of what had happened and they then contacted an ambulance, stopped at her friend's to pick up her purse and took her to Mount Sinai. He stated that she was in and out of consciousness. He stated that M.N. had complained that her throat hurt and she had scrapes to the right cheek, knees and dirt on her hands, legs and feet, as well as marks on the back.
[68] He spoke with Constable Al-Khatib and instructed him to look for certain items in the area including a blue used condom. He stated that he was aware of an indication that there was a bicycle, but did not tell Constable Al-Khatib to look for it.
The Evidence of the Defence
[69] As was his right, Mr. Medford did not testify. No other evidence was adduced on behalf of the defence. No adverse inference is to be drawn from this.
The Positions of the Crown and Defence
[70] It was the submission of the Crown that the charges had all been proven beyond a reasonable doubt. He conceded that the complainant's evidence had frailties and inconsistencies, but that viewing the totality of her evidence, in conjunction with the corroborating evidence of the police officers and the eyewitness, Mark Messelhi, there was evidence beyond a reasonable doubt.
[71] The defence submitted that viewing all of the evidence, the inconsistencies in the evidence of M.N. and Mark Messelhi, there was a reasonable doubt as regards the essential elements of each of the charges.
[72] The defence conceded there was clearly a sexual act between M.N. and Mr. Medford. He asserted however that, although M.N. testified that she was penetrated, based on the semen found on and in the condom, as there was no semen detected on the oral, vaginal or anal swabs taken, this had to be taken into account in assessing reliability, and this led to a reasonable doubt. He emphasized that when the incident took place, she had been under the influence of $100 of crack, as well as marijuana and alcohol and that this was also to be taken into consideration, as well as her having taken crack the night before her testimony. I note that her testimony commenced after noon. He further emphasized that when the incident took place, she was coming down from a crack high and needed another fix.
[73] There was no knife or bicycle found in the location of the incident. Further, in assessing her credibility, he emphasized that, given her past criminal record, and her admission that she had previously lied to the court, she did not seem to honour court orders and the truthfulness of her statements were suspect.
[74] With respect to M.N.' testimony, he emphasized that she was unable to remember whether she was wearing a hat or shoes. The eyewitness and the police who attended at the scene indicated that she had been wearing a hat.
[75] As regards the description of the perpetrator, she indicated that he was 25 to 30 years old, 5’10” and that his hair was in cornrows, although the eyewitness said he was wearing a do- rag. Mr. Halberstadt queried as to how one would know that the perpetrator had cornrows if he was wearing a do-rag. He emphasized that the accused's actual height was 5'5".
[76] He stated that M.N.' testimony was internally inconsistent and that in examination in chief, that she said that the knife came out before the choking but, in cross-examination, indicated that she had been choked and then the knife came out.
[77] As regards Mr. Messelhi's evidence, he emphasized the inconsistencies and inaccuracies in the description of the perpetrator and, accordingly, the unreliability of the testimony. He emphasized the description of the perpetrator's skin color, which Mr. Messelhi variously described as black or mixed black to the police and in testimony at court as of mixed skin, light brown. Given Mr. Messelhi's vantage point from the seventh floor balcony across the street, the fact that it was the middle of the night and the lighting was poor, I do not place any significant weight on this variance in description.
Credibility
[78] While the defence raised issues of the reliability of M.N.' evidence, I found her evidence on issues relevant to the essential elements of the counts in the indictment to be, for the most part, internally consistent. I am satisfied that she had no exterior or ulterior motivation to lie and was attempting throughout to be truthful as regards the incident. She was clearly upset by the incident as was evident from her hesitance as regards giving testimony and her demeanor on the witness stand.
[79] While Mr. Halberstadt for the defence emphasized her previous criminal record, which included dishonesty, lying to the court and failure to comply with court orders, as well as her crack cocaine addiction, I have considered her previous criminal record and her explanations in that regard concerning lying to the court, which she said was in the context of taking blame for someone else for an offence, I do not find these to be persuasive in terms of her credibility or reliability in the circumstances of this case, where she is the alleged victim of an offence. As regards Mr. Halberstadt's allegations that she does not respect the authority of the court, I am satisfied from her responses that she is intimidated by the court experience and does not wish to become involved with institutional authority, such as the courts and the police. Again, having carefully listened to her testimony, I do not find this to be determinative of whether her testimony as regards the incident was, in this case, reliable or truthful. Further, while she admitted, herself, that some of the facts and chronologies were not completely clear as regards some of the incidents that occurred on the night in question, and that her mind was, in certain instances, "muddled", again I do not find this to be determinative of the issues, unless otherwise stated below.
[80] Mr. Halberstadt also questioned the reliability and accuracy of the testimony given by Mr. Messelhi.
[81] Mr. Messelhi was a "good Samaritan", who witnessed an altercation between a man and a woman early in the morning of July 15, 2011 and called 911. For this, he is to be commended. There were inconsistencies in his description of the perpetrator. He further thought that the person subsequently apprehended that morning, Ashton Cater, was the same man, or similar in physical aspect. I am mindful that he had witnessed the event from across the street on his seventh floor balcony, at night, illuminated by a streetlight. The police photos in evidence were taken in daylight.
[82] In the conditions pertaining, it is understandable that identifications may not be precise. As regards his description of the perpetrator as black or mixed black, and in court, as mixed or light skinned black, I do not place significant weight on this variance in description. Nor, in the circumstances, do I place weight on his description of the complainant as white rather than mixed. I do not find these inconsistencies, in all of the circumstances and lighting conditions in which he was witnessing the incident, to be significant. I find his evidence to be, in the whole, reliable.
Analysis
[83] I must now consider whether, based on the evidence adduced, the five counts in the indictment, or any of them, have been proven beyond a reasonable doubt. I will review each count in turn, below.
Did Mr. Medford commit a sexual assault on M.N. using a weapon, namely a knife contrary to section 272(1) of the Code.
[84] I am satisfied that there was a sexual encounter between M.N. and Mr. Medford on July 15, 2011, which began as consensual, with the exchange of money. Based on the evidence of M.N., which I accept, when Mr. Medford was unable to ejaculate quickly, he became frustrated and rough, and M.N. attempted to give the money back and walk away. It was at that point that he grabbed her, threatened her, removed the condom and attempted to force penetration. There is evidence also that a knife was taken out at that juncture, although the timing of this is unclear, as addressed below. He then choked her and she became unconscious.
[85] I am satisfied beyond a reasonable doubt that it was at this time that the sexual encounter became non-consensual. It is clear from the Supreme Court of Canada decision in R. v. A.(J.) 2011 SCC 28, [2011] 2 S.C.R. 440 that consent requires a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act and that consent must be continuous throughout the act or acts. Where there is a loss of consciousness, the complainant loses the ability to oppose or consent to sexual activity. Further, where the acts of the complainant indicate withdrawal of the consent, initial consent that may have been given is no longer valid. I am satisfied beyond a reasonable doubt that it was when the complainant attempted to return the money and leave, that consent was withdrawn. Thereafter, the sexual actions were forced by Mr. Medford upon her and were non-consensual.
[86] The forensic evidence, as contained in the CFS report of March 20, 2015 as regards a sample of blood taken from Andrew Medford concluded that he could not be excluded as the source of DNA taken from semen on the condom found at the site of the July 15, 2011 incident and sent to the CFS for analysis at that time.
[87] As regards the use of a knife, it was the evidence of M.N. that there was a knife, and she described it in detail, as set forth above at para. 33, above. While the defence indicated that there was no evidence of a knife and no knife found, this is not unusual. He further submitted that the eyewitness, Mr. Messelhi had not seen a knife. Mr. Messelhi testified that he had not seen a knife. While he thought that Mr. Medford may have had something when forcing M.N. across the street, he was unable to see a knife and did not tell the police about a knife when he was interviewed.
[88] As regards M.N.' testimony, her evidence is not consistent as regards when it appeared. In examination in chief, M.N. testified that after she attempted to walk away, Mr. Medford drew a knife and threatened to slit her open "from ass to back" in order to excite himself. In cross-examination, she was uncertain as to whether the knife was revealed before or after penetration occurred and she had been choked. I am satisfied, based on her evidence, that a knife was present during the incident and that threats were made regarding that knife and her safety prior to the penetration and choking. I have a reasonable doubt, based on her evidence, as to when the knife was used or when she became aware of it and whether the knife was used in the commission of the sexual offence, or not until after the penetration and choking occurred, when someone yelled "hey", resulting in Mr. Medford grabbing her and forcing her across the street.
[89] However, based on the evidence, I am satisfied that a knife was present throughout the encounter. Section 272(1) provides that "every person commits an offence who, in committing a sexual assault, carries, uses or threatens to use a weapon or an imitation of a weapon". While I am not bound by them, I have considered the cases of R. v. Worobec (1991), 63 C.C.C. (3d) 412 (B.C.C.A.) and R. v. S.B. [1996] O.J. No. 5457 (Ont. C.J.). In the present case, I am satisfied that there was a knife on the person of Mr. Medford, i.e., that he was carrying a weapon throughout the encounter, which was, at some time during that encounter, whether before or after the penetration, brought out. M.N. described a knife in detail. In examination in chief, she testified several times that he used the knife in committing the sexual assault. On cross-examination, at the end, she testified that she was confused or her head was "muddled" and that the knife may have been brought out after penetration. However, prior to penetration, he threatened to cut her from "ass to back", causing her fear. He had the knife and the means to carry through on this threat. I am satisfied that in the context of the sexual assault, he had a knife on his person, threatened to use the knife to cause her bodily harm in an attempt to excite himself, and ultimately did brandish the knife. I am also satisfied that she believed, on reasonable grounds, that the accused could in fact carry through with his threat to use the knife and cut her open.
[90] Accordingly, I am satisfied beyond a reasonable doubt that Mr. Medford committed a sexual assault with a weapon, namely a knife, on M.N., and find him guilty of sexual assault with a weapon.
Did Mr. Medford, with intent to enable or assist himself to commit an indictable offence of sexual assault with a weapon, choke M.N. contrary to section 246 (a) of the Code
[91] I accept M.N.' testimony as regards being choked by Mr. Medford into unconsciousness. She had no motivation to be untruthful in this regard. Her evidence throughout was consistent that she was choked into unconsciousness. I am aware that the results of the sexual assault assessment conducted by Ms. Potvin at Mount Sinai Hospital indicated that while M.N. stated that her neck was swollen and sore, she did not note any visible swelling. Ms. Potvin did state that she had no baseline with which to compare M.N.' neck. She indicated that she had noted injuries on necks as regards choking, but did not note such injury here.
[92] I do not find this evidence to be determinative of whether choking occurred or not. I accept M.N.' evidence that it did occur and that caused her to lose consciousness.
[93] I find, beyond a reasonable doubt, that Mr. Medford, with intent to enable or assist himself to commit the offence of sexual assault with a weapon, choked M.N. contrary to section 246(a) of the Code and find him guilty of this count.
Did Mr. Medford utter a threat to cause bodily harm to M.N. contrary to section 264.1(1) (a) of the Criminal Code
[94] I accept M.N.' evidence that Mr. Medford, following the initial fellatio and inability to ejaculate, stated that he would "cut her from ass to back" to excite himself. As with all other evidence which occurred in the carport during the sexual incident, there is no corroborating evidence of the incident generally, or of this threat, nor any contradictory evidence. As is his entitlement, Mr. Medford did not testify.
[95] As regards this threat, M.N. was consistent as regards his statement. I have no reason to doubt her in this regard. Accordingly, I find Mr. Medford guilty of uttering a threat to cause bodily harm to M.N. contrary to section 264.1(1) (a).
Whether Mr. Medford committed an assault on M.N. contrary to section 266 of the Code.
[96] M.N. testified that after they heard someone yell "hey", Mr. Medford grabbed her, told her to put her clothes on and forced her across Vaughn Road, holding a knife in her back. She stated that they crossed the street, where he held her, and that she was ultimately able to grab the chain-link fence dividing Vaughn Road from the schoolyard, after which Mr. Medford, when they heard police sirens, let her go and ran down the steps into the yard. It is clear that she also sustained a swollen and red nose.
[97] Mr. Messelhi testified that he saw a man forcing a woman across Vaughn Road, and that an altercation ensued or continued thereafter on the other side of Vaughn Road. He described the incident as the man "manhandling" the woman. He testified that the altercation went on for some time, and that during that interval, he called 911 to report the incident. He testified that he had first interpreted it as a "domestic encounter" of a sexual nature. His evidence was clear that the man forcefully detained and manhandled the woman.
[98] While the description of Mr. Medford was not accurate, as above indicated, I do not place great weight on this, given that he witnessed this incident from the seventh floor balcony of his building, across Vaughn Road to the other side, in the middle of the night.
[99] Mr. Halberstadt attempted to suggest that, given Mr.Messelhi’s description of the scene across the street with M.N., it may have been Mr. Cater, as his physical appearance was closer to the description. He posited that Mr. Cater may have come across M.N. in the carport after Mr. Medford ran away, that Mr. Cater tried to take advantage of her, and subsequently forced her across the street. I note that the Forensic Report of October 3, 2011 concluded, based on DNA assessments and comparisons, that Mr. Cater was excluded as the source of DNA, namely the swabbed condom. While a creative explanation, I find this to be highly speculative and not persuasive, given all of the evidence. I note that M.N. clearly described the events going from the carport to the other side of Vaughn Road as continuous and involving Mr. Medford.
[100] I am satisfied beyond a reasonable doubt, based on all the evidence, that Mr. Medford committed an assault on M.N. contrary to section 266 of the Code, and find him guilty on this count.
Whether Mr. Medford possessed a weapon, namely a knife, for the purpose of committing an offence, contrary to section 88 (1) of the Code.
[101] As indicated above, I am satisfied beyond a reasonable doubt that a knife was present during the sexual incident. I am satisfied beyond a reasonable doubt that it was used for the purpose of committing an offence. I have found, above, that I have a reasonable doubt as to whether it was displayed prior to the sexual assault and choking or whether it was used and she became aware of it after, when Mr. Medford forcibly took M.N. across Vaughn Road. However, I am satisfied beyond a reasonable doubt that he did possess the knife described by M.N., that it was on his person throughout the encounter with M.N., and that it was used for the purpose of committing an offence, namely sexual assault, as above found. I find Mr. Medford guilty on this count.
Conclusion
[102] After a thorough review of the evidence, the law, and the submissions of counsel, for the reasons stated above, I find Mr. Medford guilty of counts numbers 1 through 5, namely all counts on the indictment.
Carole J. Brown, J.
