WARNING
The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 FILE No.: Halton, 11-651
DATE: 2012·05·02
Citation: R. v. S.(B.), 2012 ONCJ 447
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
B.S.
Before Justice Lesley M. Baldwin
Heard on August 8, September 13, September 30, October 7, October 13,
November 8, and December 1, 2011; February 10 and March 2, 2012
Reasons for Judgment released on May 2, 2012
Monica MacKenzie ..................................................................................................... for the Crown
Mark Miller ...................................................................................................... for the accused B.S.
BALDWIN, J.:
[1] On August 8, 2011, Mr. S. pled not guilty to four counts as follows:
That on or about the 6th day of March 2011, at the Town of Oakville, he
(1) did by verbal means knowingly utter a threat to C.S. to cause death to C.S. contrary to s. 264.1(1)(a) of the Criminal Code; and further that he
(2) did by verbal means knowingly utter a threat to C.S. to cause death to Dave Bell contrary to s. 264.1(1)(a) of the Criminal Code, and further that he
(3) did commit an assault on C.S. contrary to s. 266 of the Criminal Code, and further that he
(4) did in committing a sexual assault on C.S. use a weapon to wit: a knife contrary to section 272(2)(b)(a) of the Criminal Code.
[2] On August 8, 2011, Mr. S. pled guilty to two counts as follows:
That on or about the 6th day of March 2011 at the Town of Oakville, he
(1) breached a Probation Order made by the Ontario Court of Justice in the Town of Milton on July 7, 2008, by failing without reasonable excuse to comply with such order, to wit: not to associate, contact or hold communication directly or indirectly with C.S. except with prior written revocable consent filed with your probation officer contrary to section 733.1 of the Criminal Code, and further that he
(2) breached a Probation Order made by the Ontario Court of Justice in the Town of Milton on June 29, 2010, by failing without reasonable excuse to comply with such order, to wit: not to associate, contact or hold any communication directly or indirectly either by telephone or electronic communication in person or otherwise with C.S. contrary to section 733.1 of the Criminal Code.
[3] The Crown proceeded by indictment on all counts where they had an election, count #4 being a straight indictable offence.
[4] On March 2, 2012, at the conclusion of the trial evidence, findings of guilt were registered on counts #5 and #6. Judgment was reserved on counts #1 through #4 to May 2, 2012.
[5] Mr. S. has been in-custody on these matters since his arrest on March 6, 2011.
[6] A Judicial Pre-Trial was conducted on May 2, 2011. The original trial estimate was for 1.5 days.
[7] This time estimate was inaccurate given that six (6) witnesses were called whose evidence was extensive, and in the case of the complainant and the accused, covered parts of their 32 year relationship with each other. DSF evidence was heard.
[8] Seventeen pieces of evidence were tendered as Exhibits which consisted of photographs, a diagram, criminal records, a letter sent from jail, and the Affidavit sworn to by Blair S. on July 8, 2011 in support of a s. 276 Application that was started but later abandoned.
[9] On October 7, 2011, the original defence counsel, Mr. Ted Graham, was removed as counsel of record on consent. New allegations had arisen resulting from communications between Mr. S. (from jail) and two of the Crown witnesses, namely Christopher S. and Feleisha Hanson. These communications became part of the trial evidence.
[10] By November 8, 2011, Mr. Mark Miller was on-board as new defence counsel.
[11] The Court started hearing the trial evidence on December 1, 2011. The trial evidence continued on February 10, 2012 and March 2, 2012.
Background Summary
[12] The parties began an intimate relationship in their teen years. The complainant, now 49 years old, was 16 years of age at the time. She was already mother to a 6 month old baby from a prior relationship. That daughter is now 33 years of age. She did not figure into this trial.
[13] The parties married 11 years later when the complainant was pregnant with their son, Christopher, now aged 22 years.
[14] He was a witness at this trial and he has been a witness to the domestic violence in this relationship all of his life.
[15] The relationship was volatile and the parties have separated on and off throughout the years. They would communicate and associate with each other contrary to court orders.
[16] Mr. S. has been convicted and served jail time for assaulting his wife in the past.
[17] The complainant testified that the accused would mainly assault her in the head with open hands. She has been hospitalized from these prior assaults. She has a back injury from the assaults and is under the care of a pain specialist and on serious pain medications (Oxycodone and Percocet) so that she can get up out of bed and go to work.
[18] Mr. S.’s criminal record was filed as Exhibit #6, and in addition to crimes of dishonesty and multiple breach of court orders, he has been convicted of assault in 2003 and 2006 with respect to his wife.
[19] The complainant’s criminal record was filed as Exhibit #1. She was convicted of assaulting him in 2007, among other entries.
[20] Both parties have been seriously addicted to alcohol, crack cocaine and other narcotic based drugs.
[21] Their addictions have resulted in criminal behaviour and the loss of almost all physical possessions.
[22] Mr. S. testified that they have lost houses and boats over the years.
[23] As of March 6, 2011, Mr. S. was recently out of jail for assaultive offences on Ms. S.. On June 29, 2010, he was sentenced to one month of jail, after 169 days of pre-trial custody served, on two (2) counts of breach of probation concurrent, followed by one year of probation.
[24] C.S. had been living in a rental apartment with their son Christopher.
[25] Feleisha Hansen was 19 years of age when she testified at this trial. She had dated Christopher for a few months before she moved in with him and C.S.. She was referred to as Christopher’s fiancée.
[26] The events occurred in this rental apartment located on Lyons Lane in Oakville.
[27] During part of the events in question, Christopher and Feleisha were present. They also gave extensive testimony at this trial.
[28] Shortly after his release from custody, Mr. S. started to contact the complainant.
[29] C.S. explained why she allowed this contact to happen.
Testimony of C.S.
(This is a summary only – Ms. S.’s testimony is found in the transcript dated December 1, 2011 from pages 4 to 120)
“Well, he was in jail previously for assaulting me and he got out and he was talking to my son and that and my son was saying how good he was doing and that stuff and Blair and I ended up talking and I wanted to be friends with him for the children and the grandkids…he was doing really good and I was very proud of him and I wanted to be his friend because we’ve known each other since we were 16…I wanted to try and make it work, which I know is a wrong choice now…like I wanted to make it work as friends not as being back together as a couple because we’ve been there too many years and I didn’t think it would work.” (p. 13)
“I thought we were getting back to being friends and then I don’t know what happened. Things went bad…I told him I didn’t think it was a good idea that we should be back together.” (p. 14)
[30] Ms. S. acknowledged that there had been some intimacy between them leading up to March 6, 2011, but that all changed the weekend before when he assaulted her again.
[31] Ms. S. has a male friend named Dave Bell. They have been friends for six to seven years.
[32] Mr. S. doesn’t like the fact that she has this friend.
[33] The weekend before March 6th, the two of them argued once again about her friendship with Dave Bell.
[34] Mr. S. grabbed her on the arm and left a bruise, which was visible when the police took photographs over a week later. (Exhibit series #3)
[35] Ms. S. testified that the accused had promised her that he would never put his hands on her again before this argument. He was also phoning her all the time and was coming over to the apartment.
“I just had enough after that. Like I saw things were not going to go good.” (p. 18 and p. 70 and 73)
[36] Ms. S. testified that she had made it absolutely clear to the accused, Christopher, and Feleisha that she did not want the accused to be at the apartment on March 6, 2011. (repeated in cross p. 75)
[37] That day, as per her regular routine, she had spent some time at her friend Dave Bell’s apartment up the street. They listened to music, watched TV and had a few drinks. She walked home expecting to go to bed and get up at 5:30 for her work the next morning.
[38] When she got home, Blair S. was there in the living room with Christopher and Feleisha. This is how it started.
[39] As soon as she walked in, the accused said, “Look at your mother Chris, she looks like a whore.” (p. 19)
[40] She walked over and slapped him in the head and said, “How dare you do that. You sitting here and why are you here. You knew I didn’t want you here.” (p. 20)
[41] Then she went to her room, changed her clothes, and sat on her bed watching TV.
[42] She was wearing a pair of flannel PJ bottoms, beige underwear and a tank top.
[43] The accused had left a note in her room for her to read. She didn’t want to read it knowing it would say the same things he has been saying for years. She ripped it up and threw it into the hallway.
[44] Then the accused came into her bedroom and they began to argue.
“The next thing you know he’s slapping me and a lot of the conversation had to do with my friend Dave.” (p. 23)
[45] The accused stood in front of her as she sat on the bed. He slapped her face, her head and her chin. At one point, her nose was bleeding.
“I was trying to protect myself, you know. There was not much I can do. He’s a lot bigger than me.” (p. 23)
[46] C.S. testified that she is 5’4” in height and weighed 125 pounds at the time. Mr. S. is 5’7” in height. She has no clue what he weighs (but it was apparent that he weighs significantly more than she does). (p. 116)
[47] Chris and Feleisha were still in the house and she asked/yelled, “Why isn’t somebody helping me?” (p. 23)
[48] Ms. S. yelled out for help a number of times.
[49] Chris and Feleisha came into her bedroom a couple of times.
[50] At one point Felisha told Blair to “stop it.”
[51] Christopher was trying to get his father to leave.
Use of the Knife
“…at one point Mr. S. had a knife, pulled it out, okay and had it close to me and was threatening my life with it and my friend and at one point he put it down and I managed to pick it up and I threw it out, almost hitting Feleisha. Like, I didn’t know she was going to come around the door. All I know is I wanted to get this knife away from me. (p. 24, 27,62 , 92, 96, 110, 114)
[52] The knife came out of Mr. S.’s pocket. It was a “fold down…pocket knife…approximately 3 inches long.” (p. 25, 94)
[53] He held the knife to her neck, but it did not touch her.
[54] He said, “I’m going to kill you…Maybe I should take you over to your friend’s house and do you both at the same time.” (p. 26)
[55] Chris entered the room and said, “Come on Dad, let’s go.” Chris was to drive the accused back to his place.
[56] Feleisha and Chris could not get Blair to leave. Feleisha and Chris left the apartment and walked their dog.
[57] At one point, the accused walked out of her bedroom. She grabbed her cell phone and pushed the last number that she’d dialled. It was Dave’s number and he was listening to the screaming and yelling.
[58] She said, “He’s doing it again to me.” (p. 31, 98, 99)
[59] She heard Blair come back to her room and she shut her phone down.
[60] The accused kicked her bedroom door shut. He licked her on the face and pulled her pants down. He got on top of her and had sexual intercourse with her. (p. 28, 29, 101, 102)
[61] He was on her so hard that she felt like she could not breathe. (p. 29)
[62] He did not wear a condom. He did ejaculate. Ms. S. did not consent to this sexual activity.
“I don’t know why he thought that I would want to have sex with him after he just assaulted me. I don’t understand it. He’s never done that before in the past.” (p. 28)
[63] When he “finished” he got up from the bed “as if nothing had happened and at that point my son had convinced him to leave and he went outside the door….into my son’s car and he left.” (p. 30)
[64] Christopher drove Blair back to his place in Milton.
[65] After Blair left with Chris and Feleisha, Ms. S. called Dave. Dave told her that he did not know what to do when she called him. Then he said that he had to do the right thing and the police are coming. (p. 32)
[66] Shortly after that, the police were at her door.
Q. How were you feeling about that when the police came?
A. Well, I didn’t really want Blair to have to go back to jail, but I knew he did something wrong and I didn’t know what to do at that point.” (pp. 32, 33)
[67] Ms. S. gave a verbal statement to the police that night.
[68] She refused to go to the station for a video-taped statement, or go to the hospital for treatment, because she had to work the next day. (p. 33)
[69] She had bruises on her cheek, her chin was purple, the inside of her lip was bruised and her nose was bleeding. The police took photographs that night, marked as Exhibit series #3.
[70] Ms. S. did not stay at her place that night. She returned to Dave Bell’s place and slept in his spare room. She took her Tim Hortons’ uniform with her because she intended to go to work in the morning.
[71] When she got up and saw her injuries, she decided it would not be proper to go to work and have her customers see her in that condition. She took a few days off of work until the bruising went down.
[72] On March 12th, Ms. S. attended the police station and provided a video-taped statement under oath.
[73] She explained that she was too embarrassed to go out of her house before that “because I didn’t want people to see me looking like that.” (p. 45)
[74] C.S. testified as to reading the letter Mr. S. had written to Christopher and Feleisha. The letter was marked eventually as trial Exhibit #5(b). It was C.S.’s view that Blair was trying to influence what they should say in court.
[75] C.S. testified that she wished “it never happened…I didn’t want to have to be here, but you know, it has to come to an end sometime and I don’t feel that Chris and Feleisha should be brought into this….I don’t (can’t) believe this happened again. I really didn’t want to be here. I can think of better things to do with my time like be at my new job.” (p. 48)
[76] In cross-examination, Ms. S. testified that she had consumed five beers throughout the afternoon and early evening of March 6th.
[77] She came home that night between 8:00 and 9:00 like she does every Sunday.
[78] She denied being intoxicated.
[79] She was upset to find Blair in the house when she had made clear to all involved that she did not want him there.
[80] She did not want to talk to him or read his note.
[81] She did not want him in her bedroom.
[82] He would not leave her bedroom or the apartment and he would not leave her alone. He tried to “force” her to talk to him. (p. 89)
[83] Then he started to hit her. It was multiple hits to the head. (p. 95)
[84] She did not hit him in her bedroom.
Testimony of Blair S.
[85] Mr. S. was 17 years old when he began a relationship with C.S..
[86] Mr. S. was 51 years of age when he testified at this trial.
[87] He acknowledged his criminal record, including the prior assaults on C.S..
[88] He acknowledged years of alcohol and drug abuse that has “ruined” them both.
[89] Mr. S. testified that he has not consumed cocaine in five years.
[90] When he last got out of jail, he worked for a month in Fort McMurray.
[91] He rented a room in Milton and started seeing C.S. in January of 2011.
[92] He would stay over at her place on the weekends and come down sometimes during the week.
[93] On Sunday March 6th, he came over to help Chris with his car. He stayed over for dinner. He didn’t expect to see C.S. that day. He knew she was at Dave Bell’s place.
[94] When C.S. came home, she was “mean.” She said, “It figures you’re here.” He could tell that she had been drinking.
[95] She ran toward him and hit him with her hands on his ears.
[96] He called her a whore because he was upset.
[97] C.S. went to her room.
[98] Feleisha brought him the ripped up “love” letter he earlier had written C.S. and put it in his hands.
[99] He walked into C.S.’s room and said, “What the fuck’s your problem?”
[100] C.S. was sitting on her bed wearing a brown sweater and jeans.
[101] He threw the torn letter into the garbage and began to talk to C.S.. He was sitting on the little stool.
[102] He said why are you doing this? Why are you drinking like this?
[103] C.S. started hitting him in the face, so he “hit her back – in the face – almost instantly.”
[104] He told C.S. there was something wrong with her.
[105] Then Chris and Feleisha came into the bedroom and started arguing with C.S..
[106] He left the bedroom and went into the living room.
[107] Feleisha came up to him and said “fuck’in bitch threw a knife at me.”
[108] He returned to the bedroom and got down in front of C.S. and told her to stop drinking and doing drugs. His hands were on her legs. He wiped a tear from her face.
[109] C.S. was crying and he told her that he loved her.
[110] Chris and Feleisha left the apartment.
[111] He shut the bedroom door and he argued with C.S. over her drinking.
[112] C.S. “settled down” and they started kissing.
[113] He lay on the bed with her and she undid her belt. He pulled her pants off and they “made love.”
[114] He heard Chris say “let’s go it’s getting late.”
[115] He and C.S. put their clothes on.
[116] He told C.S. that he had to go because he needed to give Chris some money.
[117] C.S. started arguing with him again because he was always giving Chris money.
[118] He put his shoes and coat on, and left to go home with Chris.
[119] When he left, C.S. “was fine.”
[120] When he got home 20 minutes later, he was told that the police were at his door.
[121] He was arrested and has been in custody ever since.
[122] Mr. S. was asked about a call he had made to Christopher from jail. Christopher testified that his father told him that ‘when he got out of jail he was going to hunt C.S. down.’
[123] Mr. S. did not deny saying those words to his son. He testified that he has been in jail long enough and it’s not fair. He said those words to his son because he was “frustrated.”
[124] Mr. S. denied being in possession of, or using, a pocket knife on March 6th.
[125] Mr. S. denied pointing a knife at C.S. or threatening to kill her or David Bell.
[126] He denied that C.S. was wearing flannel pants when he saw her that night.
[127] Mr. S. testified that nothing in C.S.’s bedroom was “broken or damaged” and her clothes were not “ripped or damaged.”
[128] In cross-examination, Mr. S. testified that he believes that C.S. and Dave Bell have been having an affair for four to five years. He doesn’t like Dave Bell.
[129] Mr. S. testified that he thinks that C.S. and Dave Bell drink alcohol and do drugs together. He does not believe C.S. when she denies it.
[130] Mr. S. also testified that he was not upset that C.S. was at Dave Bell’s on March 6th.
[131] He was upset when C.S. came home because she had been drinking and taking drugs (i.e., her prescription pain medications).
[132] When asked about the letter he wrote to Feleisha and Christopher from jail, Mr. S. denied trying to influence their testimony at the trial.
[133] Mr. S. testified that he just wanted them to know what was going on.
[134] Mr. S. testified that the weekend before March 6th, C.S. hit him because she was drunk.
[135] He stayed over at her place and slept on the couch. C.S. was upset because he had given their son money.
[136] On the Saturday, C.S. had been at Dave Bell’s place.
[137] In the middle of the night - maybe 3:00 a.m. - he was sleeping on the couch. C.S. tried to take his cigarettes by “whacking him in the face.” He grabbed her by the arm and took back his cigarettes and hid them.
[138] He spoke to C.S. every day on the phone between then and March 6th. He thought everything was fine.
[139] On March 6th, he spoke to C.S. on the phone starting at 9:00 a.m. and he could tell that she was already drinking. Her attitude was belligerent.
[140] When asked why he called C.S. a “fucking whore” when he first saw her on March 6th, Mr. S. said that it was “just what came out of his mouth” because “she had been drinking.”
[141] In explaining what happened in C.S.’s bedroom that night, Mr. S. testified that “it was just an instant reaction to hit her…I flicked her like that (demonstration to the Court), I back-handed her on the side of the head and then I left the room.”
[142] It was a “front hand slap the first time and a back-hand slap the second time – I just flicked her (because) she hit me first.”
[143] When shown photograph Exhibit series #3, Mr. S. testified that he didn’t see any injuries on C.S..
[144] He testified that her nose was not bleeding. There were no marks on her face.
[145] He did see the big bruise on the inside of her arm from when he grabbed her the week before “when she went for my cigarettes.”
[146] Mr. S. testified that Feleisha and Christopher came to C.S.’s room that night to tell C.S. to shut up because she was yelling and screaming.
[147] After Feleisha and Christopher left the apartment, C.S. was still upset, crying and whimpering.
[148] She had calmed down and was not angry during the sex.
[149] Mr. S. testified that it “slipped his mind” when he didn’t mention the incident when he grabbed C.S.’s arm the weekend before March 6th in his Affidavit, Exhibit #7.
[150] Mr. S. testified that he signed the Affidavit without reading it.
[151] Mr. S. denied that when he told Christopher “he would hunt his mother down when he got out of jail” that he meant he would kill her.
[152] Mr. S. repeated that he said those words out of frustration because he was upset.
“I said it because I’ve been sitting in jail for something I didn’t do.”
[153] Mr. S. agreed that after he got out of jail last time, he promised C.S. that he would never hit her again.
[154] Mr. S. denied that on or before March 6th, C.S. had made it clear to him that they were not getting back together and she did not want to see him at her place again.
[155] Other witnesses at this trial were: Christopher S.; Feleisha Hanson; HRPS Officer Edward Buceta; and Dave Bell.
[156] Their trial testimony will not be summarized as the two major parties’ have been.
[157] It is important for the parties and any reviewing court to understand how I have come to the judgments I have made here. It is not necessary for me to parrot back what all the witnesses have said to make myself clear that all witnesses have been heard.
[158] All of the witnesses’ evidence, the Exhibits filed, and submissions heard, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. OCJ Judges do not have the luxury of nine writing weeks a year as they do in the SCJ. We are fortunate if we get nine days for judgment writing a year. This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. (See R. v. H. (J.M.) 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Dinardo 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Drabinsky 2011 ONCA 582, [2011] 107 O.R. (3d) 595 (OCA).
Position of the Defence
It is the defence position that, even on the complainant’s version of events, a knife was not used during the sexual activity. The defence submits that there is no temporal connection between the alleged use of the knife and the alleged sexual assault. At its highest, the evidence would make out the offence of assault with a weapon.
It is the defence position that the Court must be left in a state of reasonable doubt that a sexual assault occurred once the complainant’s bedroom door was shut. The defence submits that these parties were engaged in a “tragically mutually abusive relationship” and the complainant’s admitted alcoholism and (prescription) drug use makes her an unreliable witness on all four counts.
Position of the Crown
The Crown submits that they have established a sufficient temporal connection between the physical assault, use of the knife and the sexual assault, for the Court to register a conviction on count #4. Madam Crown has submitted case law subsequent to this submission, which informs the issue.
The Crown submits that Ms. S.’s evidence is credible, reliable and is corroborated on material issues by the other Crown witnesses. The Crown submits that Mr. S.’s testimony does not raise a reasonable doubt and should be rejected as clumsy fabrication designed to explain away independent proof of his guilt.
The Crown submits that the letter written from the jail (Exhibit #5) is, at a minimum, an attempt by the accused to influence the testimony of Christopher and Feleisha in his favour. This reflects negatively on his credibility, as does his criminal record for dishonesty.
Count #4 – Sexual Assault with a weapon to wit: knife
[159] The complainant in this case has alleged a physical assault, together with the use of a knife, and threats to kill her and her friend, Dave Bell.
[160] According to the trial evidence, the sexual assault occurred in the complainant’s bedroom, behind a closed door when the two of them were alone.
[161] Before the sexual assault, C.S. had thrown the knife outside of the bedroom into the hallway. She did not see the knife after that and believes that the accused took it with him when he left the apartment.
[162] There was no evidence that the accused threatened to use the knife during the sexual assault. There was no evidence that the complainant feared that the accused would use the knife during the sexual assault.
[163] Having read the decisions in R. v. S.B. [1996] O.J. No. 5457 (SCJ) and R. v. Worobec [1991] B.C.J. No. 732 (BCCA) leave to appeal to SCC dismissed [1991] S.C.C.A. No. 273, I find that the use of the knife was not part of the sexual assault.
[164] Accordingly, I will consider whether the Crown has proven the offence of sexual assault on count #4.
(Note: The use of the knife as the death threats were uttered will be an aggravating factor on sentence.)
Analysis
[165] All testimony has been heard, reviewed and assessed and the WD analysis has been applied.
[166] This is a classic case of wife battering which the accused has attempted to rationalize away by blaming the victim.
[167] The child of this marriage, Christopher S., has been traumatized by this violence. The accused has tried to buy him off for complicity; he has tried to obstruct justice by influencing his court testimony; he has threatened to kill his child’s mother in a phone call made to his child while in custody awaiting trial for these offences.
[168] This was a painful trial to listen to. All of the central witnesses were in pain from the damage that has been caused by Mr. S..
[169] C.S. has been assessed as a credible and reliable witness. She was very forthcoming about her weaknesses and her prior mistakes in judgment. She expressed regret for bad choices she has made and for hitting Mr. S. when she came home on March 6th and found him once again invading her space and calling her a ‘fuck’in whore’ in front of her son and Feleisha.
[170] I accept as accurate, reliable and true that Ms. S. was physically assaulted and significantly bruised the weekend before March 6th over the never ending argument about her friendship with Dave Bell. The bruise is visible in the photographed Exhibit and was observed by Officer Buceta. Mr. Bell saw that injury the week before. This assault is consistent with Ms. S.’s evidence that she told Mr. S. that they were not getting back together and that he was not welcome back at her apartment when she was there.
[171] Ms. S. made it clear that she did not want to get back together with Mr. S. again. It is this rejection he has twisted into her being belligerent because she was drinking.
[172] Mr. S. will not take “no” for an answer. Mr. S. will not abide by Orders of the Court to stay away from his wife. Mr. S. will use any excuse at all to justify his ugly comments and threats, such as “I was frustrated” or “I was upset.”
[173] Mr. S. tried to justify the physical injuries he has left on his wife’s body by claiming that she hit him first; she was drunk; she tried to steal his cigarettes; she takes drugs; she gets angry when he gives their son money.
[174] I reject all of this as cruel nonsense.
[175] The clear animus Mr. S. has toward his wife when he cannot use her as he wishes, and his animus toward Dave Bell, her only friend, was powerful evidence at this trial.
[176] It was Mr. Bell who brought the police into the picture this time. He heard the accused yelling and ranting on the phone call. He was genuinely concerned for the safety of C.S. given everything he has known about this dangerous relationship.
[177] I have no doubt that Mr. S. threatened to kill C.S. and Dave Bell on March 6, 2011 in her bedroom.
[178] I have no doubt that Mr. S. brandished a small pocket knife when he made these threats. I accept Ms. S.’s evidence that after he put the knife down on her little stool, that she picked it up and whipped it out into the hallway so he would not use it again. She had no idea Feleisha was coming to the doorway to intervene. Feleisha’s evidence is consistent with this order of the events.
[179] Where there are minor differences between the evidence of Ms. S., her son and his young fiancée, I accept the evidence as given by Ms. S..
[180] It was clear to me that Christopher is desperate to keep the peace between his parents. He wants his parents to get along with each other. He wants to have his father around to help him out as any young man would. He also has been influenced by his father as the letter from jail indicates. I note that in the letter the accused refers to himself in the 3rd person, which is consistent with someone who is creating a script. He also makes references about the court proceedings, which are wrong, and references about the court which are offensive.
[181] Christopher S. was conflicted when testifying and he did his best to do the right thing. Conveying the threat to “hunt his mother down” was extremely painful for him.
[182] Feleisha is a young woman who is a newcomer to the dynamics here. She, as well, wants peace and harmony for Christopher and she has tried to be a peace maker. Unfortunately, there can be no peace here.
[183] Dave Bell was a credible and sincere witness. Like the others, he did not want to come to court – he did not want to have to call the police on March 6th. He saw the new injuries Ms. S. suffered when she returned to his place for refuge later that evening.
[184] Based on his own testimony at trial, Mr. S. physically assaulted C.S. in her bedroom on March 6th.
[185] I am not left in a state of reasonable doubt that after the bedroom door was closed, Mr. S. sexually assaulted Ms. S..
[186] This was another demeaning, controlling act in response to her rejection of him.
[187] He has destroyed her body and broken her heart, but he has not destroyed her spirit.
[188] She is entitled by law to her physical and emotional safety. She is entitled by law to her physical space.
Decision
[189] For these reasons, findings of guilt are registered today on counts #1, #2, #3, and to the lesser and included offence of sexual assault on count #4.
Released: May 2, 2012 _________________________________
Signed: “Justice Lesley M. Baldwin”