WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kemar Headley
Before: Justice Howard Borenstein
Heard on: September 17 and 18, 2014
Reasons for Judgment released on: September 26, 2014
Counsel:
- Ms. Zamojc, counsel for the Crown
- Mr. Rafftery, counsel for the accused Kemar Headley
BORENSTEIN J.:
Charges and Overview
[1] Kemar Headley is charged with committing sexual and other offences against Ms. N.K.
[2] He is charged with assaulting Ms. N.K. sometime between February 16 and March 11, 2013 by slapping her hard across the face in front of her mother causing her nose to bleed.
[3] He is also charged with sexually assaulting her with a weapon. It is alleged that, while at the Maple Leaf motel in early March, 2013, Headley placed Ms. N.K. against the wall and was accusing her of not having sex with him. He is alleged to have cut the inside of her vaginal wall with an X-Acto knife. This attack resulted in charges of sexual assault with a weapon and a second charge of possessing a weapon for a purpose dangerous.
[4] Finally, he is alleged to have sexually assaulted Ms. N.K. on March 20th at the Howard Johnson Hotel by throwing her to the floor, tearing off her pants and having forced sexual intercourse.
[5] He testified and denied committing any of the offences. He alleges that he had consensual sexual intercourse with Ms. N.K. on those two occasions and that he never used an X-Acto or any knife upon her. With respect to the simple assault charge, he testified that they were both play-fighting slapping each other and that he accidentally hit her too hard during this exchange.
[6] Ms. N.K. and Mr. Headley were the only two witnesses to testify at this trial.
[7] In addition, medical records were admitted which reveal that Ms. N.K. had a one centimetre cut inside her vaginal wall when she was examined by hospital staff about three weeks after that alleged attack. Further, numerous text messages between the two that were sent just after the Howard Johnson alleged attack were admitted as exhibits.
[8] The Crown proceeded by indictment.
The Evidence
Background and Initial Meeting
[9] Turning to the allegations and evidence.
[10] Ms. N.K. met Mr. Headley around Christmas 2012 through her younger brother. Mr. Headley was from Barbados and was in Toronto on a visitor's visa. He was hoping to extend his stay in Canada.
[11] Ms. N.K. testified that she and Headley were friends. They were never romantically involved although she knew he had feelings for her. She did not have romantic feelings for him.
[12] Ms. N.K.'s boyfriend was in jail and would call her regularly. Whenever she was in Headley's presence when her boyfriend called, Headley would become jealous and angry.
The Maple Leaf Motel Incident (March 12, 2013)
[13] On March 12, 2013, Headley called N.K. and asked if she would bring him some marijuana. He was near Morningside and Kingston Road. She met him there. It turns out he had rented a room at the Maple Leaf Motel. They went to his hotel room. He began cutting up the marijuana with scissors. Ms. N.K.'s boyfriend called her from jail. She took the call in the washroom as she did not want to be rude and speak to her boyfriend in front of Headley, as she knew he had feelings for her.
[14] When she got off the phone and returned to the room, Headley was lying on the bed cutting marijuana. She could tell he was angry.
[15] Headley jumped up from the bed and told N.K. she was not giving him a chance. He asked why she kept going back to her boyfriend given how he had treated her. He asked N.K. if that was the life she really wanted.
[16] Headley then pressed N.K. against the wall holding her by the neck and pulled out an X-Acto knife from his pocket. He placed it near her vagina over her tights crudely telling her that she was not giving him "pussy".
[17] She tried to explain that things were complicated with her boyfriend regardless of what he had done to her in the past.
[18] N.K. was wearing tights at the time. The knife was upturned and cut her inside her vagina through her tights.
[19] She described the X-Acto knife as yellow and grey with a round dial on it. She had seen it before.
[20] She began bleeding everywhere. She could not believe what had occurred. She was scared and wanted to leave. Headley seemed scared too saying she could not leave like that. He made it appear as though the cut were an accident.
[21] N.K. went to the washroom. She removed her tights and stepped into the bathtub to clean herself.
[22] She did not call the police that day as she was wondering if Headley really meant to cut her or whether the cut was an accident.
[23] N.K. believed that she spent the night with Headley in the hotel and left the next morning. Headley stitched up her tights using a needle and thread N.K. had in her bag. Those tights were not produced in Court.
[24] Ms. N.K. had been evicted from several places and was living between various residences at the time. She had some clothing at the home of her child's godfather at a building on Lawrence Avenue East. She went there in the morning with Headley and changed into clean clothes. She had previously committed to styling someone's hair so she attended that appointment as well. Headley was following her around all day.
[25] Those are the allegations underlying the charges of sexual assault with a weapon and possession of a weapon.
The Howard Johnson Hotel Incident (March 20, 2013)
[26] A week later, on March 20th, Ms. N.K. was asked to leave another residence. She dropped off her children with their father and then rented a room at the Howard Johnson hotel as she needed a place to stay. N.K. joined her at the hotel although why he was invited is unexplained.
[27] N.K. alleges that Headley sexually assaulted her at that hotel. While she repeatedly said that she had only a vague recollection of these events, she testified that she received a call from her boyfriend. After the call, Headley again told her that she was not giving him a chance. N.K. testified that she did not want to be rude so she never explicitly told Headley she was not interested in him. Instead, she let him down softly by telling him that her relationship with her boyfriend was "complicated".
[28] Headley then tore off her clothes saying: "you're not going to give it to me but to him" and "you're not going to give me a daughter like your daughter". She said "no" but Headley would not take no for an answer. Headley pulled her clothes down somewhat and had sexual intercourse with her while she was telling him to stop. She did not know if he used a condom or ejaculated. She remembers curling up and crying.
[29] The cut inside her vaginal wall from the previous week re-opened.
[30] N.K. then showered and put her clothes on.
[31] She and Headley then left the hotel together. They went to her child's godfather's apartment on Lawrence where they smoked marijuana.
Police Involvement and Delayed Reporting
[32] Later that day, the police were at the building on Lawrence while Headley and her child's godfather were smoking marijuana in the stairwell. The police arrested the godfather and, after a brief chase, Headley was arrested and was placed in a cruiser in front of the apartment building.
[33] Ms. N.K. saw Headley in the cruiser. This was the same day he had sexually assaulted her and a week after the sexual assault with a weapon. For reasons that never were made clear, a police officer spoke to N.K. when she passed by the cruiser and asked her whether she had anything to say. She did not. When asked in cross-examination why she did not disclose the sexual assaults to the police, she replied that she was in shock and did not like the way the police conducted themselves that day by putting a gun in Headley's face and beating people up. She explained that no one trusts the police and she did not want to speak to them about the sexual assault.
[34] Headley was released from the cruiser. She and Headley then returned to the Howard Johnson Hotel. She was still upset about how Headley had been treated by the police.
[35] She initially denied the defence suggestion that, once back at the Howard Johnson hotel, she called the police in relation to the police treatment of Headley. She was then shown her video statement where she told the police that she called them because Headley forced her to call so that he could get medical attention. She then testified that she had to call the police as Headley was waving an X-Acto knife at her at the time and, moreover, she did not like the way the police treated Headley that day.
[36] N.K. testified that, while at the Howard Johnson Hotel, she told him that she did not want to be with him. He replied that he was dead anyway as he had AIDS and had given her AIDS. He explained that he came to Canada from Barbados to see the world before he died.
[37] She had given the police various explanations for not reporting the allegations to the police after the attack. One of her reasons was that Headley was always with her so she was unable to do so. There were other reasons given as well.
[38] However, as she conceded in her evidence, he was not always with her. In fact, between March 20th and April 7th, there are numerous text messages between the two demonstrating that they were not always together.
[39] Many of the texts related to her asking Headley whether he was serious when he told her he had AIDS. He said he was. She was unsure whether he was serious or was simply trying to get her to not return to her boyfriend.
[40] She went to the police on April 7, 2013 after a series of text messages where he was repeatedly telling her that he had AIDS. She then disclosed the sexual assaults. It is clear from the evidence and her statement to the police that she was motivated to report these offences largely because Headley repeatedly told her that he had transmitted AIDS to her.
[41] After months of tests, and medication, thankfully, it is clear that she is not HIV positive.
The Simple Assault Allegation
[42] N.K. also disclosed another incident to the police, this one pre-dating the alleged sexual assaults.
[43] She was in her mother's kitchen with her mother, her mother's boyfriend and Headley. After taking a call from her boyfriend, she testified that Headley was pretending to play-fight with her by slapping her. He then slapped her hard across the face causing a nose bleed and her eyes to tear. Headley tried to make it seem like he was joking. N.K.'s own mother tried to calm her down saying Headley was playing around so N.K. did not pursue the matter further until she went to the police on April 7th.
Complainant's Criminal Record and Credibility
[44] Ms. N.K. has a criminal record. In 2007, she was convicted of theft under and obstruct police. She was convicted of fraud as well. In 2008, she was convicted of failing to comply and unlawfully at large. She is facing outstanding charges of counselling to commit an indictable offence. She steadfastly rejected the defence suggestion that she made up these allegations to assist her with her outstanding charges.
[45] She conceded that she went to the police on April 7th, the same day Headley told her he had AIDS. She explained that she did not report the matter earlier because she did not want him to sit in jail in case the cut was an accident and she had inadvertently led him on. She explained that when he told her he had transmitted AIDS to her, she realized it was not an accident.
[46] She admitted she was on good terms with Headley even after the Howard Johnson incident. She explained she was uncertain what she would do so she liked to keep "her friends her close and her enemies even closer".
Text Messages from Complainant
[47] She turned over her text messages to the police. In cross-examination, she was confronted with some of those texts that she sent after the Howard Johnson incident where she was sending Headley electronic kisses in her texts and calling him "sweets". This was on March 22.
[48] She initially explained that she calls everyone sweets. When asked if that includes people who have just sexually assaulted her, she replied that her brother had a plan to get Headley so she was being nice to set a trap.
[49] She denied that she and Headley had consensual sexual activity on March 13 and 20th.
[50] As for the initial assault, she said she was not certain whether the hit was an accident or whether he was playing around.
Defence Testimony
[51] Headley testified. He denied committing any sexual or other assaults. He said he would never hit a woman.
[52] He testified that he came to Canada in November 2012 from Barbados looking for a better life. He is not HIV positive. He met Ms. N.K. Her boyfriend was in jail and had mistreated her. He said liked her vibe. He also said he loved her but did not want to be with her as she had children.
[53] He rented a room at the Maple Leaf Hotel and she came to meet him. They had planned this the day before. He had given her money to buy marijuana. She brought the marijuana to the hotel. As he was rolling a joint, N.K. took a call from her boyfriend and spoke to him in the washroom. When she came out, she said: "that fucking fush". He asked her if she was going to spend the night with him at the hotel and she said that was the plan. She changed and came out of the washroom and they had rough sexual intercourse which he described. He has 16 beads implanted in his penis which he says are meant to stimulate women. The sex was so rough that Ms. N.K. said she was cut and bleeding. She went to the washroom clean the blood. She returned and spent the night with him. He never used an X-Acto or any knife on her. She knew about the fact that he had used an X-Acto knife back in Barbados when he was robbed by two people who tried to steal the drugs he was selling. He told her that in the course of their friendship as she was helping him with his paperwork.
[54] The next day, they went to her child's godfather's apartment on Lawrence and smoked up.
[55] The following week, they were both at the Howard Johnson Hotel. They had consensual sexual intercourse. They then went to the same building on Lawrence and smoked up. Her child's godfather was arrested in the stairwell by police who entered the stairwell with guns drawn. Headley fled and was arrested after a chase. He was placed in the cruiser for five minutes before being released. Then he and N.K. went back to the Howard Johnson. She said they should call the police and complain about how they treated him as that would enable him to stay in Canada longer. They called the police but not about a sexual assault.
[56] With respect to the assault in Ms. N.K.'s mother's kitchen, Headley testified that both he and Ms. N.K. were play slapping each other and he accidentally hit her harder than expected and immediately apologized. He faked with his right hand and struck with his left as she was moving toward that left hand.
[57] In cross-examination, he agreed he was large and works out.
[58] He earned money working for cash under the table for his friend Bennie. He also admitted that he sold crack cocaine for Bennie.
[59] He did not want a relationship with Ms. N.K. because she had children. He liked her vibe and loved her but did not want a relationship with her. He denied wanting to settle down with Ms. N.K. even though he wrote that to her in one of the text messages.
[60] Ms. N.K. was helping Headley try to extend his stay in Canada.
[61] He testified that other woman have, on occasion, bled vaginally during sex if they were "dry".
[62] With respect to running from the police, he was inconsistent saying he did not realize they were police and then testify that there is a $750.00 fine for possessing marijuana in Barbados.
[63] He is not HIV positive. When asked why he would text Ms. N.K. saying he was, he gave a lengthy explanation. In essence, he testified that he met another woman and was staying with her for a few days. Ms. N.K. would call him often. This was just before she went to the police. She asked him where he was. He told her he was with his friend Bennie. She asked him to put Bennie on the phone. He did not. Ms. N.K. called back accusing him of being with another woman and saying that it was strange that they had not seen each other. She then called back saying that he had sex with her without a condom and hopes he is not HIV positive. He said he wasn't. She kept asking if he was sure. He then asked her the same question. An argument ensued and he hung up. Ms. N.K. kept calling him and eventually, the woman he had met asked him to leave because of these calls. Ms. N.K. threatened to send him back to his country. She texted him again saying she knows that he has AIDS. He told her he did not but she persisted so he eventually, sarcastically, then he told her he did. Then the texts before the Court were sent when he was angry.
Medical Records
[64] A medical exam was conducted on Ms. N.K. on April 6th. The examiner was able to look inside the vaginal wall after separating the labia. She saw a one centimetre cut that was not bleeding but was tender located about 1 ½ centimetres from the vaginal opening. There was no evidence that the cut was inconsistent with the beads or the knife.
Text Messages
[65] Exhibit 2 contains a series of text messages between N.K. and Headley after the March 20th incident.
[66] There was a text sent from Ms. N.K. to Headley on March 22, two days after the alleged sexual assault at the Howard Johnson. No context was provided but her text to him reads "Muah". Headley then replies "what" and N.K. replies by sending an emoticom of a kiss and then says: "That's what muah means silly".
[67] In another text, dated March 22, a time when Ms. N.K. said she could not get away from Headley, she writes him just before 1:pm saying: "Hey, jus got service on my way to scarborough town". He replies – "ok u good".
[68] There is a text from him where he says: "youre so sweet that one of the things I love you for baby. I love you so much boo just want to settle down and be happy".
[69] This is contrary to his evidence that he did not want to settle down with her.
[70] She replies "the best n most beautiful things".
[71] There is another text from Ms. N.K. to Headley on March 22nd asking him to come to a building to smoke marijuana and bring her a phone.
[72] There are a series of texts from about 10:20 am to 1:30 p.m. on April 6th or 7th, leading Ms. N.K. to call the police and report the allegations of sexual assault.
[73] The texts essentially have Headley trying to convince N.K. that he has AIDS and now she does too. At first, N.K. does not appear to believe him but, by the end, she says she is fearful and says she will go to the doctor which we now know she did. She also then went to the police and alleged that she was sexually assaulted.
[74] That was the evidence in this case.
Analysis and Findings
The Central Issue
[75] Has the Crown proved Mr. Headley guilty on any of these charges?
Credibility Assessment
[76] The defence submits that Mr. Headley was a credible witness and that there were aspects to the complainant's evidence and behaviour that should raise a reasonable doubt such as her failure to report the allegation, her continued association with Headley after the attacks and the fact that she only reported these allegations when they were arguing about AIDS.
[77] The Crown submits that the complainant has provided reasonable explanations for any such conduct. Further, the defence never put to the complainant that the beads may have caused the injury during consensual intercourse and therefore the Court can and should draw an adverse inference against Headley's credibility. On that point, the Crown is correct that the existence of these beads should have been put to the complainant. However, the drawing of an adverse inference in those circumstances is discretionary and I chose instead to allow the Crown to recall Ms. N.K. which offer was declined.
[78] In the end, there are two witnesses to what happened in those motels; namely, whether it was consensual or not consensual.
[79] Ms. N.K. has a criminal record including crimes of dishonesty. While that is a factor to consider, it does not have much impact on her credibility in this case. Moreover, with respect to the suggestion that she fabricated these allegations to somehow assist her with her outstanding charges, I agree with Ms. N.K.'s response where she rejected that suggestion and wondered how these allegations could have any impact on her own charges. They do not.
[80] As for the manner in which they testified, Ms. N.K. and Mr. Headley both appeared credible insofar as demeanour was concerned. As they both gave their evidence, they seemed truthful. In and of itself, I would not be able to find either to be untruthful.
Medical Evidence
[81] The medical records disclose a cut inside Ms. N.K.'s vaginal wall and that significantly corroborates her evidence. Mr. Headley's explanation for that cut is that Ms. N.K. was cut and bled caused by his bead during rough sex. I accept that he has those beads. I do not know that those beads did not cause the cut though that seems less likely.
Circumstantial Evidence and Conduct
[82] Another factor that goes into my consideration is this. I agree with the defence submission that it would be surprising that Headley would insist that Ms. N.K. call the police on March 20th if he had just violently sexually assaulted her earlier that day.
[83] Turning to the failure to complain to the police after the March 13 and March 20th attacks, the Criminal Code abolished the stereotype-based requirement that a victim must complain at the first reasonable opportunity. All of the facts of a case should be considered. While Ms. N.K.'s explanation for not calling the police after the March 13th incident is credible, her failure to disclose the assault to the police on March 20th when the accused was under arrest and was sitting in a police cruiser was somewhat surprising. Her explanation for that it in part related to her concern that Headley had been mistreated by the police was also surprising. More importantly, however, her action of then returning to the Howard Johnson hotel with Headley after he was released from the cruiser after he had just violently sexually assaulted her that very day is a factor I consider. So was her decision to later call the police from the hotel, not about the sexual assault but about how Headley had been treated by the police. On the evidence, I do not know whether it was Headley or Ms. N.K. who initiated that plan.
Text Message Evidence
[84] Then there are the text messages.
[85] I find Mr. Headley's explanation for some of those text messages likely false, especially his explanation for the text message indicating that he wanted to settle down with Ms. N.K. His entire conduct regarding trying to persuade Ms. N.K. that he had AIDS was despicable and his explanation far-fetched.
[86] I also find Ms. N.K.'s explanation for the text messages she sent on March 22nd, odd. She was sending him kisses in her text messages. While it is possible that she was trying to keep her enemies close as she says, it is also possible that no sexual assault occurred prior to that time.
The Simple Assault Allegation
[87] With respect to the assault allegation, there were potential witnesses to the simple assault but neither Crown nor defence chose to call them. The accused testified that he and the complainant were both play-fighting and he accidentally struck her too hard when she moved. He apologized immediately. Ms. N.K. testified that he pretended it was an accident and she was not sure. Her own mother said it was accidental. I doubt it was an accident.
Released: September 26, 2014
Signed: "Justice Borenstein"