Court File and Parties
Court File No.: 21-RD16207 Date: 22/06/2023 Ontario Superior Court of Justice
Between: His Majesty the King – and – M.W.
Counsel: Christian Moreno for the Crown Brendan Coffey for the Defendant
Heard: May 9, 10 and 11, 2023
Pursuant to Section 486.4 of the Criminal Code, the name of the complainant and any information that could identify the complainant in this case shall not be published in any document or broadcast or transmitted in any way.
Verdict
Justice Sally Gomery
[1] M.W. is charged with seven offences under the Criminal Code of Canada. The Crown alleges that M.W. assaulted, sexually assaulted, choked, forcibly confined, and threatened his common law partner, K.L., at their shared residence on February 4, 2021. The Crown further alleges that, in committing these offences, M.W. breached an earlier court order.
[2] M.W.’s trial took place on May 9, 10, and 11, 2023. This is my verdict.
Legal Framework
[3] M.W. is presumed innocent. To obtain a conviction, the Crown must prove, beyond a reasonable doubt, that he has committed one or more of the offences with which he is charged.
[4] Reasonable doubt is “based on reason and common sense … logically derived from the evidence or absence of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39. The Crown does not need to prove the allegations to an absolute certainty, or beyond any imaginary or frivolous doubt: Lifchus, at para. 39. It must, however, prove each element of a charge beyond a reasonable doubt. I must be certain that the events set out in the charges happened to find M.W. guilty. Even if I find the Crown’s evidence generally credible and reliable, I may still have reasonable doubt based on the evidence as a whole.
[5] This case turns almost entirely on K.L.’s testimony. Although other witnesses testified, K.L. was the only one who had direct knowledge of events giving rise to the charges.
[6] As Molloy J. explained in R. v. Nyznik, 2017 ONSC 4392, at paras. 15-16, a judge’s task in an assault trial is not only to determine whether a complainant is telling the truth as they perceive it, but whether their evidence is sufficiently reliable to convict the accused:
Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.
[7] Inconsistencies in a complainant’s evidence may give rise to reasonable doubt. A complainant may contradict her earlier testimony under cross-examination or give a different account at trial than she did in police statements or another hearing. Witnesses are not expected to have perfect recollection, but inconsistencies can demonstrate a carelessness with the truth: R. v. G.(M.), 1994 CarswellOnt 181, at para. 23. A single minor inconsistency will not diminish a witness’ credibility, but a series of inconsistencies or a single inconsistency on a major point may do so. The trier of fact “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), at para. 29.
The Evidence at Trial
[8] The Crown called three witnesses: K.L., Denise Couperus, and Lindsay Bowen.
K.L.’s Evidence in Chief
[9] In her examination in chief, K.L. testified that she and M.W. were in an on-again, off-again relationship for about six years. They were living together in a two level home on Innes Road in Ottawa with their four-year old daughter, A.W., in early 2021. On the morning of February 4, 2021, K.L. and M.W. got into an argument. K.L. testified that she was supposed to attend an on-line course that morning, and asked M.W. to take their daughter to daycare. He said he was too tired and got angry. K.L. recalled that the argument began between 8:00 and 9:00 a.m.
[10] M.W. began calling K.L. crude, pejorative names. He slapped her lightly on the arm and kicked her leg. K.L. told M.W. to leave her alone and again told him that he had to take A.W. to daycare. He kept yelling. K.L. got very upset and called him a “rape baby”. She then went upstairs to their bedroom.
[11] M.W. followed K.L. upstairs a few minutes later. Since she did not mention that A.W. accompanied him, I infer that A.W. remained alone downstairs. K.L. was on the bed, wearing a lingerie set with short bottoms. M.W. once again began yelling at K.L. and calling her names. She told him to go away because she needed space. M.W. told K.L. that she should change into proper clothes. K.L. refused, saying it was hot in the room. M.W. then said that K.L. was asking to be hurt. He put his hand on her leg. K.L. testified that she said stop and no. M.W. repeated that K.L. had to change her clothes, and she once again called him a rape baby. He climbed on top of her and flipped her body over so she was facedown on the bed.
[12] K.L. testified that she took out her iPhone and started recording what was happening at this point. She testified that she was kicking and screaming and telling M.W. to stop while M.W. was pulling her shorts off. The recording only lasted eight seconds because K.L. put the phone down. The video clip shows K.L. face down on a bed. M.W. is seen behind her, shirtless. He grabs one or both of her ankles and removes her lower garment, exposing her genital area. While this is happening, K.L. is kicking her legs and says: “Off. Get off of me. Stop trying to hurt me.”
[13] K.L. testified that M.W. did not stop. He said that if he was a rape baby, he might as well rape her. After he pulled down K.L.’s shorts, he penetrated her vaginally with his erect penis. While doing so, he choked her around the throat with both of his hands, to the point where she was having trouble breathing. K.L. told M.W. to get off of her and tried to push him off. When she dug her nails into M.W.’s bare chest, he finally stopped choking her and got up.
[14] K.L. managed to run to the washroom and lock the door behind her. M.W. followed and began banging on the door. K.L. was trying to figure out how to get her phone and go downstairs to call for help without getting hurt. She eventually unlocked the door and opened it very quickly. M.W. fell into the washroom, and K.L. ran past him to retrieve her phone in the bedroom.
[15] M.W. again followed K.L. to the bedroom and tried to prevent her from exiting after she got her phone. K.L. got by him and went downstairs. She phoned her CAS worker and asked her to call 911. She testified that she did not phone 911 directly because she was worried M.W. would interrupt the call before she could relay basic information such as her address. He came downstairs right after she made the call and smashed the screen of her iPhone. Police and paramedics arrived at the house a short time later in response to a 911 call made by the CAS worker.
[16] In chief, K.L. testified that, in all, M.W. kicked her once on the leg and slapped or hit her twice on the arm; hit her head repeatedly; and choked her. Before M.W. smashed her phone, K.L. used it to take pictures of marks on her legs, her upper arm, and her neck. She saved these pictures to her SnapChat account. Four pictures were retrieved from K.L. by police on March 14, 2021, along with the eight-second video.
[17] K.L. testified about photographs taken by police of the residence on February 4, 2021, showing property damage. K.L. testified that M.W. punched dents in the washroom door while banging on it while she was inside. He damaged the inside of the bedroom door the same day when K.L. was trying to leave the room, either to get to the washroom or to go downstairs. He punched a hole in the bedroom wall after K.L. succeeded in leaving. K.L. identified her iPhone in photos showing a phone with a smashed screen. According to K.L., M.W. was also responsible for holes in other parts of the bedroom wall shown in the police photos, but this damage had happened three weeks earlier.
[18] I will review K.L.’s evidence under cross-examination later in these reasons.
Other Evidence Called by the Crown
[19] Denise Couperus is a member of the Ottawa Police Services who was on patrol on February 4, 2021. She testified that she was called to a residence on Innes Road at noon and arrived at 12h11. Other officers were already on the scene. Officer Couperus recalled that she spoke with K.L. for at least fifteen minutes. She testified that K.L. was wearing a jumpsuit with long pants and that her neck and face were visible. She did not recall seeing any injuries. After speaking with K.L., Officer Couperus photographed the interior of the residence. These were the photographs that K.L. referred to in testifying about property damage caused by M.W..
[20] Officer Couperus was forthright in admitting what she did and did not recall. She refreshed her memory by referring to contemporaneous notes when necessary. She did not speculate or embellish. I found her evidence credible and reliable.
[21] Lindsay Bowen, a child protection worker with the Children’s Aid Society of Ottawa, testified that she was assigned to K.L.’s file from January to April 2021. On February 4, 2021, she received a call from K.L. at about 11:50 a.m. K.L. was upset and crying during most of the call, which Ms. Bowen estimated lasted between fifteen and twenty minutes. K.L. told Ms. Bowen that M.W. would not leave the home. She said that M.W. had assaulted her and that she had photos of injuries. K.L. did not explain why she chose to phone the CAS rather than 911. Ms. Bowen inferred that K.L. was concerned about how the CAS might react if the police became involved with the family. Ms. Bowen emphasised the importance of ensuring the safety of K.L. and A.W. and suggested that a 911 call should be made. K.L. agreed. Ms. Bowen hung up the phone and immediately called 911.
[22] In cross-examination, Ms. Bowen was asked about an email she sent to the Ottawa police on February 16, 2021, about her phone call with K.L.. In the email, Ms. Bowen did not mention any allegation by K.L. that M.W. had assaulted her. Ms. Bowen maintained in cross-examination that K.L. reported some sort of assault even though she could not remember the words that K.L. used. Ms. Bowen admitted that she did not hear any voices in the background during her call with K.L. or any sounds suggesting that M.W. had come downstairs.
[23] Ms. Bowen’s testimony was generally straightforward and clear with one exception. She did not persuasively explain why she failed to mention an alleged assault by M.W. against K.L. in her email to Crown counsel. Aside from this issue, I found her evidence reliable.
Has the Crown Proved that M.W. Committed the Offences with Which He is Charged?
[24] In closing argument, the Crown conceded that no evidence had been led on the charge that M.W. threatened K.L. with death on February 4, 2021. That count is therefore dismissed.
[25] This leaves six other counts to consider.
Has the Crown Proved that M.W. Assaulted or Sexually Assaulted K.L.?
What the Crown Must Prove
[26] Assault is touching or the threatened application of force without consent. Sexual assault is an assault committed “in circumstances of a sexual nature, such that the sexual integrity of the victim is violated”: R. v. Chase, [1987] 2 S.C.R. 293, at p. 302.
[27] In R. v. Marshall, 2017 ONCA 801, at para. 52, the Ontario Court of Appeal held that the sexual nature of an assault is determined objectively by examining the nature and quality of the act:
The court must ask itself, “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”: Chase, at p. 302. The circumstances to be considered include the part of the body touched, the nature of the contact, the situation in which it occurred, and the words and gestures accompanying the act.
[28] The words uttered by an assailant and a complainant during a sexual assault may therefore be relevant for two purposes: to determine whether the act was sexual in nature, and to determine whether the complainant consented to the touching.
[29] To prove that an assault was a sexual assault, the Crown does not need to prove that the accused had a sexual intent or an improper or ulterior purpose: R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60, at para. 36; Marshall, at para. 53. The intent or purpose of the person committing the act may, however, be one of the relevant factors in determining whether the conduct was sexual: Chase, at p. 302.
The Evidence Relevant to These Charges
[30] The evidence of assault and sexual assault in this case consists of K.L.’s testimony and the video recording.
[31] K.L.’s testimony was generally unreliable. She gave substantially different versions of the alleged assaults in a written statement to police on February 4, 2021; in a videotaped statement to police on February 9, 2021; in her testimony at a preliminary inquiry in May 2022; and at trial. She admitted in cross-examination that her memory had changed over time and said that it might continue to change in future.
[32] Many of the inconsistencies in K.L.’s evidence were material in that they involved her description of the alleged assaults or the events immediately after them.
[33] At trial, K.L. was sure that M.W. initially stood by the bed and made comments about her clothing, then got on the bed. She vividly remembered that she was lying on her back when he arrived. In her written statement on February 4, 2021, however, she said that she was lying on her belly when M.W. entered the room. At the preliminary inquiry, she initially could not remember whether M.W. jumped on top of her immediately or lay next to her for a time first, but ultimately testified that she had a “crystal clear” memory and “absolutely no doubt in her mind” that M.W. sat on top of her immediately after he came into the bedroom.
[34] In K.L.’s written statement to police and again at the preliminary inquiry, she described two sexual assaults on February 4, 2021: one when M.W. penetrated her vagina with his fingers, before she took refuge in the washroom, and a second when he penetrated her vaginally with his penis, after she left the washroom and returned to the bedroom. In her evidence in chief at trial, K.L. testified about a single sexual assault that took place in the bedroom before she escaped to the washroom. This sexual assault occurred when M.W. penetrated her vagina with his penis. She did not mention any digital penetration at all.
[35] When this inconsistency was brought to her attention in cross-examination, K.L. said she remembered “a little bit” about the digital penetration. A little while later, she asserted that she was now sure that M.W. digitally penetrated her after he choked her, even though she had testified at the preliminary inquiry that these two acts took place simultaneously. She could not, however, recall whether M.W. was on top of her or lying beside her when this happened, or which hand or finger he used. She admitted that she only recalled the digital penetration because she read about it in her written statement during her cross-examination.
[36] I was not persuaded, in listening to K.L.’s testimony, that she has any recollection of digital penetration. I could not reconcile her earlier accounts of two distinct sexual assaults occurring before and after she was in the washroom with her evidence at trial about a single sexual assault before she went to the washroom.
[37] At the preliminary inquiry, K.L. testified that she was lying on her back when M.W. penetrated her with his penis after her return from the washroom to the bedroom. At trial, K.L. not only failed to remember a second sexual assault after she returned from the washroom but was adamant that M.W. penetrated her while she was lying on her stomach.
[38] K.L. testified at trial that she vividly remembered M.W. choking her with both hands. At the preliminary inquiry, she could not remember if he used one or two hands. She recalled at the preliminary inquiry that M.W. choked her while digitally penetrating her; at trial, she did not.
[39] K.L. gave three markedly different accounts of how she escaped from the washroom after fleeing the bedroom. At trial, she said she pulled the door open suddenly and M.W. fell in. In her initial written statement to police, she said that M.W. unlocked the door with a bobby pin. At the preliminary inquiry, she said she just walked out, and could not remember where M.W. was when she did so.
[40] K.L.’s account of how the sexual assault ended also varied over time. In her video statement to police on February 9, 2021, she stated that M.W. disengaged from coitus, saying “he got off and said “I shouldn’t have done that”. At the preliminary inquiry, K.L. at first testified that she had to push M.W. off to force him to stop penetrating her vaginally, but contradicted herself a few seconds later, saying that M.W. “just realised what he was doing, and then in the end he got out of the room”. At trial, K.L. testified that M.W. stopped assaulting her after she dug her nails into his chest. She had no recollection that M.W. became aware of what he was doing and stopped.
[41] In cross-examination, K.L. denied that it was M.W. who told her to call the police on February 4, 2021. She was confronted with her testimony at the preliminary inquiry, during which she admitted that she recalled M.W. saying this while they were upstairs (as she had told police in her statement), and that he could have repeated it anywhere from one to fifty times. K.L. ultimately acknowledged, at trial, that she could not remember whether or not M.W. told her to call the police. She agreed that she gave three different answers to the same question at the preliminary inquiry and at trial but maintained that each answer was based on her independent recollection at the time.
[42] These are some, but not all, of the inconsistencies in K.L.’s evidence.
[43] K.L. testified that she was traumatized and in pain when she wrote her February 4, 2021, police statement, but that her memory had improved by the time she gave her videotaped statement a few days later. She also said that she was actively trying to forget the assault from the time it happened, even when she testified under oath at the preliminary inquiry. She said that she continued to repress her memories until sometime between the preliminary inquiry and the trial when she went into therapy. Therapy finally allowed her to “work out” what had happened on February 4, 2021. K.L. said that, as a result, her memory of events got a lot better.
[44] Victims of violence process their trauma in different ways. I do not infer that K.L. was consciously lying. The substantial inconsistencies in her evidence do leave me, however, profoundly unsure about the accuracy and reliability of her recollection. I cannot discern what she actually recalls and what she has reconstructed. Furthermore, even if I accept that she could not accurately relate what happened until she underwent therapy, this explanation would not account for the contradictions between her evidence in chief and in cross-examination at trial. Her story varied materially even during the two days she was in the stand.
[45] Other aspects of K.L.’s account indicate that it is unreliable.
[46] K.L.’s description of the events of February 4, 2021, at trial cannot be reconciled with the time stamp on the video recording. K.L. recalled that the argument about who would bring A.W. to daycare started as early as 8:00 a.m. and as late as 9:00 a.m. and lasted maybe ten minutes. She recalled that M.W. followed her upstairs about five minutes later. Based on her recollection at trial, she made the recording a few minutes later, after M.W. had told her to get changed and then began to physically remove her clothing. A digital evidence report in relation to the video indicates, however, that it was created at 10:58 a.m. on February 4, 2021, which K.L. accepted as accurate. This means that two to three hours elapsed between the beginning of the confrontation between K.L. and M.W. that day. K.L. did not explain what occurred over the lengthy period of time left unaccounted for between the argument downstairs and the recording.
[47] K.L.’s account of what occurred after the alleged sexual assault is irreconcilable with Ms. Bowen’s evidence. K.L. testified that she was fleeing M.W. from the time he first began physically assaulting her in the bedroom, and that she finally managed to escape downstairs to phone for help, fearful that he would continue to come after her. She said she called her CAS worker because she thought she might not have enough time to give a 911 operator her personal details, such as her address. In cross-examination, K.L. said that M.W. came downstairs during the call but waited until it was over before grabbing her phone and smashing it.
[48] According to Ms. Bowen, however, the call lasted at least fifteen minutes. She heard nothing that suggested that M.W. was present. Ms. Bowen’s evidence contradicted K.L.’s claim that she was hurrying to relay information as quickly as possible because she feared that M.W. would cut the phone off before she could get help. It was Ms. Bowen, and not K.L, who suggested that 911 should be contacted.
[49] The photos that K.L. took of her neck, leg, and upper arm also belie a sense of urgency. Based on the background seen in the pictures, they were taken in the bedroom and the living room. K.L. testified that she took them on February 4, 2021, before M.W. smashed her iPhone. In cross-examination, she stated that she took the pictures in the bedroom after she took the eight second video and before she went to the washroom. This does not account for any pictures taken in the living room, and cannot be reconciled with K.L.’s evidence about fleeing to the washroom in fear after the alleged sexual assault. At the preliminary inquiry, K.L. testified that she took the pictures while she was waiting for the police to arrive. She could not have done so, however, if M.W. smashed her phone right after her phone call to Ms. Bowen.
[50] I am not suggesting that K.L.’s account of the alleged sexual assault is less plausible because the evidence suggests that she was not being actively pursued when she went downstairs. A person who has been sexually assaulted may or may not run away from their assailant and may or may not seek help immediately. The issue is not whether or not K.L. conformed to a stereotype of how a victim of sexual assault should behave. The issue is whether her evidence can be considered plausible and therefore reliable.
[51] Based on the many serious and material problems with K.L.’s testimony, I find I cannot rely on any of it.
[52] Crown counsel argues that, notwithstanding the weaknesses in K.L.’s evidence, I should find that M.W. sexually assaulted her based solely on the eight-second video clip. He contends that what can be seen on the video is a sexual assault: M.W. is forcibly removing K.L.’s undergarment, exposing her genital area, while she appears to resist physically and is heard to say “off” and “stop”.
[53] On its face, the video seems to show a sexual assault, albeit very briefly. I conclude, however, that I cannot convict M.W. of sexual assault or assault based solely on this evidence, because I cannot be sure that it depicts a non-consensual interaction. The video clip is plausibly consistent with a consensual playfight. K.L. testified that she resisted when M.W. was removing her underwear, but I have found that none of her evidence about what occurred that day is reliable. I cannot be sure. I have reasonable doubt.
[54] In closing argument, Crown counsel pointed out that no questions were put to K.L. in cross-examination about her statements on the recording. He suggested the statements should be admitted for their truth as spontaneous utterances, citing R. v. R.A., 2021 ONSC 7044, at para. 43. There was disagreement between counsel about whether the Crown had advised, prior to trial, that the statements on the recording would be introduced into evidence for their truth, and whether it would have been necessary for the Crown to seek a ruling on this issue if it intended to do so. But even assuming that K.L.’s statements on the tape are not inadmissible prior consistent statements, and even if they were not specifically challenged in cross-examination, I am not required to find that they are reliable if I conclude, as I have, that K.L.’s evidence at trial is generally unreliable.
[55] Crown counsel argued that courts can rely on what is depicted on a videotape, without any further evidence, to establish that a crime was committed by an accused. Although I was not provided with any caselaw to support this hypothesis, I can think of some instances where video evidence would be dispositive of some key issues. For example, a security video in a store might capture images of an accused using a gun to kill someone during a hold-up. If the accused were clearly visible on the tape such that he could be identified, then the Crown would not have to call any eyewitnesses to the shooting to further identify the accused as the shooter. Other evidence would still be required to prove the charge, however. At the very least, there would be a body, an autopsy report, and evidence about how the recording was made and retrieved.
[56] In the case at bar, the only evidence about the alleged assault, aside from the eight second video, is K.L.’s testimony. She took photos of her leg, arm and neck, but the only clearly visible injury is a slight redness on her upper arm. Officer Couperus did not see any marks on K.L.’s neck or face right after the alleged assault, despite K.L.’s testimony about being choked. Like other aspects of her evidence, K.L’s testimony about the circumstances of the recording varied. She testified at trial that she took it during the sexual assault but before M.W. penetrated her with his penis and before she fled to the washroom. At the preliminary inquiry, she admitted that she could not remember whether she took the video before or after she went to the washroom, and that she could have taken it while M.W. was penetrating her.
[57] I am of course not saying that the Crown needs evidence to corroborate a complainant’s account of a sexual assault. That would be a legal error. But if the Crown wishes to rely on a videotape to prove that an assault took place, it must present reliable evidence about the circumstances of its creation and what it depicts. A video or photograph, in isolation and denuded of any context, can be misleading. Any such evidence must be accompanied by foundational evidence to authenticate it and to persuade the trier of fact that what it appears to depict is actually what happened.
[58] I do not find that the eight second video, on its own, is a sufficient basis to find, beyond a reasonable doubt, that the interaction between K.L. and M.W. was an assault or a sexual assault. There is potentially an innocent explanation. Because of the consistent unreliability of the complainant’s testimony, I cannot place any weight on her evidence about what is happening in the video, or whether her words heard on the video were honest and sincere. Because there is no reliable evidence about the context and creation of the video, I am not sure that an assault or sexual assault occurred.
[59] As a result, the Crown has not proved, beyond a reasonable doubt, that M.W. assaulted or sexually assaulted K.L. on February 4, 2021.
Has the Crown Proved that M.W. Choked K.L. or that He Forcibly Confined Her on February 4, 2021?
[60] Since I have already concluded that K.L.’s evidence is not reliable, I cannot rely on it to find M.W. guilty of the charges of choking the complainant or forcibly confining her.
Has the Crown Proved that M.W. Breached the Peace on February 4, 2021?
[61] The Crown and the defence agreed that M.W. was subject to a court order to keep the peace on February 4, 2021. The defence agreed that a finding of guilt on any of the other charges would necessarily imply a finding of guilt on the charge of breaching a court order.
[62] The Crown has not proved that M.W. committed any other offence with which he is charged. It argues, however, that I should accept K.L.’s evidence that M.W. damaged the bathroom and bedroom doors, punched a hole in the bedroom wall, and smashed K.L.’s iPhone on February 4, 2021, because that evidence was not contradicted. As I have already stated, if I find a witness’ evidence is generally unreliable, I may have a reasonable doubt about specific elements of it even if they were unchallenged in cross-examination. I am pretty sure that K.L. and M.W. fought on February 4, 2021 and that the screen on K.L.’s iPhone was smashed after she took the photos of her face, neck, and leg and phoned Ms. Bowen. But that is not good enough to meet the criminal standard. Since I have concluded that I cannot rely on K.L.’s account of the events of that day, I am not persuaded, beyond a reasonable doubt, that M.W. caused the property damage to the doors and the walls as she stated. K.L.’s iPhone was indisputably damaged between the time she took the 8 second video and the arrival of the police. However, I am unable to determine exactly when or how this happened.
[63] I conclude that the Crown has not proved that M.W. breached the terms of his probation order on February 4, 2021.
Disposition
[64] I find M.W. not guilty on all charges on the indictment.
Released: June 22, 2023 Justice Sally Gomery
