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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court Information
Ontario Court of Justice
Date: 2014-10-22
Court File No.: Brampton 3111 998 14 8983
Between:
Her Majesty the Queen
— AND —
Mr. Hopeton Sutherland
Before: Justice N.S. Kastner
Heard on: July 24, Aug. 18, Aug. 22, Oct. 6, Oct. 14 and Oct. 22, 2014
Reasons for Judgment released on: October 22, 2014
Counsel:
- Ms. C. Lynch and Mr. T. Ofiara — counsel for the Crown
- Mr. D. Zbarsky — counsel for the accused Mr. Hopeton Sutherland
Kastner J.:
The Accused is charged with four Criminal Code allegations: assault bodily harm, sexual assault with a weapon, theft under and breach of probation. All the charges relate to his alleged conduct on May 3, 2014 with R. G.
1: ISSUES
[1] This is a credibility case. Both Mr. Zbarsky and Mr. Ofiara fairly submit that the sole issue in this case is the credibility and reliability of Ms. R. G., and the application of the burden of proof. The defendant did not testify in this case, therefore Mr. Zbarsky submits the application of R. v. W. (D.), [1991] S.C.J. No. 26 is not at issue.
[2] There are a number of questions before the Court, specifically whether I am satisfied beyond a reasonable doubt:
a) That an assault took place by the defendant that caused bodily harm to Ms. R. G.;
b) That an assault took place by the defendant that violated the sexual integrity of the complainant;
c) That the defendant used a weapon, a knife, in committing the above sexual assault;
d) That the defendant took and deprived Ms. R. G. of her phone with the intention of keeping it either temporarily or for an extended time; and
e) That his conduct that evening breached a probation condition that he not be in possession of weapons.
[3] The Crown called Ms. R. G. in an effort to prove its case. It also relies upon the evidence of the police witnesses, the Agreed Statements of Facts filed, and the evidence of Mr. Jervis Evans. The ultimate question is whether Ms. R. G.'s evidence, in conjunction with the other evidence, establishes the accused's guilt with respect to the offences charged beyond a reasonable doubt.
2: INTRODUCTION
[4] This case concerns Mr. Sutherland who, the evidence suggests either runs a crack house, or flop house in the Malton area of Mississauga. He is a crack user who facilitates the acquiring of drugs for others. He also abuses alcohol. To be clear, this evidence of uncharged bad acts was admitted for a very limited purpose at trial; to provide the necessary context to properly understand Ms. R. G.'s evidence, in terms of explaining the circumstances surrounding the allegations, her beliefs and perceptions. I recognize that I can only use this evidence for limited narrative purposes.
[5] Importantly, I also recognize that I am forbidden from using this evidence to conclude that Mr. Sutherland is a person of bad character and therefore the type of person who would commit the counts charged. Similarly, I must also guard against allowing this evidence to simply blacken Mr. Sutherland's character and thereby lessen the Crown's burden on this basis.
[6] This case also involves Ms. R. G., an essentially homeless woman, 36 years of age, whose common law husband was at the time of the relevant events and at the time of trial - in jail, and who squats between a couple of crack houses, friends' homes, the park and the Westwood Mall in Malton. R. G. was left homeless when her common law husband of nine years was imprisoned. She would stay mostly at the home of "The General" which was a crack house occupied by "The General", two other women, and one Indian man. She is also a crack user and has been for approximately the last one and a half years. She also appears to be alcohol dependent, drinking several beers per day. She also takes oxycodone by prescription when she is unable to get crack cocaine. Her criminal record, largely for breaching court orders, is an exhibit.
[7] The Court must view her evidence with an application of common sense, but through the lens of someone in her unfortunate position. I do not lessen or minimize the scrutiny which must be given to her evidence, but look to her subjective perceptions, whether they are honestly held, and whether they may be objectively sound or incredulous in her particular circumstances.
[8] The complainant first saw the defendant in the park adjacent to the Westwood Mall about two years ago. She only said hello to him until about a year ago, and then she met him when he visited "The General's" house almost daily to buy crack. She only saw him at that crack house, the park or in Westwood Mall at first. One time last winter, she was with her husband in the park, and the defendant took both of them to his place and told them if they had 'smoke' they could do it at his house.
[9] She did not know Mr. Sutherland's real name until the trial. She knew him simply as "Yuk".
[10] Yuk's place was in a townhouse complex. Three men lived upstairs and Yuk lived in another man's room. That other man was not there on the night in question. Ms. R. G. would go every day to get her crack to smoke and smoke it there. Yuk would call a dealer and get the drug.
[11] During her testimony, she drew a sketch of Yuk's room. It was very small, and had couch cushions on the floor to sit on or to lie down on.
[12] On Friday May 2, 2014, Ms. R. G. went to Yuk's room earlier that day and smoked cigarettes, and made some noodles. She went out to get money to purchase crack and beer, before returning to smoke crack there.
[13] Ms. R. G. got some beer and forty dollars ($40) and went to smoke crack and drink beer with the defendant and two other women who were hanging out at the Sutherland place. She knew only one of the women. She arrived sometime between 7 o'clock and 9 o'clock. He was expecting her. She gave him the money and he took her phone to call the dealer. He left to get the drugs and returned in about ten to fifteen minutes. All four smoked their own drugs. They had each bought them separately. She also drank her four or five beers. She was high at that time.
[14] After the other women left, Ms. R. G. said she did not want to stay and stated she was going out for cigarettes. She testified that Mr. Sutherland did not want her to leave. He held her saying she could not go. He locked the door. No one else was there.
[15] After that, he threw her down by pushing her in the hall. She then came outside and he followed her out, and pushed her again, banging her head against a wall or door frame causing an injury to the right side of her head, which appears in photographs taken later that day or into the following day. She says he was trying to prevent her from leaving his home. The injury bled, and required stitches a number of hours later when she went with police to the hospital.
[16] Ms. R. G. testified that "he took her inside again". She returned back into the home because of the look he gave her. She said she was scared and intimidated into returning, but no physical force was used. She testified she asked for the return of her cellphone which she had loaned him earlier to call the crack dealer to make arrangements for the drugs. She told him she wanted to call police. He would not give it to her. He never gave it back that night, and the police seized it from him on the night of May 3rd.
[17] She lay down on couch cushions scattered on the floor because of her fatigue, the injury and given that he would not let her go out. It was now around or after 2:00 a.m. She further testified that Mr. Sutherland picked up a knife from a dresser next to them, and said he wanted to sleep with her. He pulled her pants down. She said she did not want to sleep with him. She also pushed him. He told her, "I am a dirty nigger and blood clot" as he held the knife. Then he had intercourse with her against her will on the floor of his room. He extorted her compliance with a knife pointed at her throat and kept it at the ready while he raped her. He was finished in four or five minutes and ejaculated. Ms. R. G. described Yuk, the defendant, as "very angry at that time, high on crack and drunk too." He did not wear a condom.
[18] After he had sex with her, he put the knife "on the side". She said she waited until she could sneak out in order to make her escape, and he pursued her with a beer bottle held up. He followed her to the road. A lady was outside drinking beer, and Ms. R. G. asked her to call the police, but she did not. That lady knew the defendant and lived in the same complex. She thought the woman was a friend of Yuk's.
[19] Ultimately she fled his home and returned to another flop house she was living in, the General's house, to figure out her next steps. It was a fifteen minute walk between them. She didn't sleep or clean up. Ms. R. G. did not think about calling police from the General's house, because she was bleeding too much and was drunk. She called her friend Mr. Evans and asked him to come with her to report the assaults to the police. She testified she did not then change her clothing, and that there was blood on it. When Mr. Evans showed up, she made her way to the Mall via the park, and eventually to the community policing station at the Westwood Mall. Ms. R. G. thought it was about 2:30 p.m. that she spoke to security guards at the Westwood Mall, who know her, and they took her to the police station with them.
[20] An officer, Police Constable Tonkin, took her report with the assistance of a Punjabi speaking officer, observed her injury and had officers take her to hospital. He noted that she appeared upset and was crying a little bit. Normally he finds Ms. R. G. personable, but this time she was visibly upset and whimpering with occasional tears. He knows her and describes her accent as strong, which makes her difficult to understand. She was not bleeding at the time.
[21] A female officer, Police Constable Herren, attended the hospital and took a statement from Ms. R. G. there. She was tired and upset. Photographs were taken the same night at the police station before she was dropped off.
[22] The head injury required three or four stitches. It took over a week to heal, and she stated that her head still hurts sometimes in that area.
[23] The complainant said she consented to a sexual assault kit and did not complete it, as she was too tired. The nurse asked her to come back the next day. She did not go back. The hospital is about a half hour drive from Malton, and she had no way to go unless picked up. Ms. R. G. did not show up at an arranged appointed time to get a ride with the police back to the hospital to have the sexual assault kit done. The semen of the defendant was located in her underwear which had been seized by police on May 3, 2014 at the hospital. She testified she was wearing the same clothes she had worn to Yuk's house, which were seized at the hospital.
[24] Later that day, Peel Regional Police attended Mr. Sutherland's residence in response to a landlord tenant dispute. He was arrested for these offences at 9:45pm. Upon arrest, Mr. Sutherland made an utterance that he was with a female named "Angie" earlier in the day and that is who was accusing him of sexual assault. After rights and caution, he stated that the white cellphone seized by the officer was a phone that he and the complainant shared. He also stated that he "is not interested in sex and rarely has sex with females".
3: POSITIONS OF THE PARTIES
[25] Simply put, Mr. Zbarsky submits that Ms. R. G. is not an honest witness. He further submits that even if she is generally credible, the contradictions and inconsistencies in Ms. R. G.'s evidence render her evidence so unreliable that a reasonable doubt should arise for all charges.
[26] Mr. Ofiara submits that Ms. R. G. is not a perfect witness, but the core of her evidence makes sense and is consistent on the ultimate question of whether Mr. Sutherland held a knife to her and forced sex upon her against her will. The Crown submits one would expect some inconsistencies from her due to the effects of drugs and alcohol, but that does not mean she is not reliable as to what happened to her.
4: ANALYSIS
[27] The Court has listened carefully to all of the evidence heard. I need not set out or recite all the evidence which I have heard over a number of days, only those facts relevant to an issue. In fact Ms. R. G. testified over three days spaced out between July and October of this year, and I have reviewed it all in its entirety, as well as that of other witnesses and the agreed facts. I will begin with the main issue, the credibility and reliability of Ms. R. G.
4:1 Credibility in General
[28] Defence counsel asserts Ms. R. G. is not an honest witness, nor is she reliable. Crown counsel indicates that the complainant is not a perfect witness, but she is trying to be truthful and one can rely on her evidence, particularly where she is corroborated by other evidence.
[29] The credibility of a witness encompasses both the ability and desire to be accurate. Credibility thus depends upon not only accuracy of observation, memory and narration, but also the witness's sincerity of commitment to telling the truth.
[30] The Court may believe all, none or some of a witness' evidence.
[31] The vast majority of sexual assault prosecutions turn on the evidence of the two principals, the complainant and the accused. In some cases, such as this one, the case turns on the evidence of the complainant and whether it raises a reasonable doubt, both internally and in conjunction with other evidence that may be inconsistent with it.
[32] A verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged. That the area of sexual offences is not different in this regard is evident from the reform of the corroboration rules in the realm of sexual abuse prosecution. To hold otherwise, would be to fall prey to the false myths regarding sexual offence complainants as inherently suspect or untrustworthy.
[33] There is no dispute that the complainant had the opportunity to make observation of the night and early morning hours in question, but her compromised sobriety causes the Court to scrutinize her evidence carefully. Her addictions may also affect her memory of events.
[34] Ms. R. G.'s first language is Punjabi. She has a high school education but her knowledge is basic and rudimentary in many areas. She does fairly well in the English language, but needs help, particularly when under stress. The officer who knows her best, Police Constable Tonkin was aware of this, and so sought the assistance of a Punjabi speaking officer. The fact that Police Constable Herren did not do so, was due to her level of understanding of Ms. R. G. if the officer slowed down and repeated some of the questions. "She struggled from time to time". Ms. R. G. said she was very tired when she spoke to the female officer, and the officer confirms this. She was very fatigued and very hungry.
[35] Understandably Police Constable Herren wished to do her best to get a statement from the complainant that night in hospital rather than in a police station in more ideal circumstances. If not, her homelessness and the lack of her cellphone, posed difficulty in finding Ms. R. G. again for a formal statement. Her responses in English are not smooth, and are disjointed. Where there are slight discrepancies between her recorded statement over her phraseology and her testimony, I find the assistance of the interpreter at trial has helped the witness's level of understanding of the questions, and I am satisfied that at times she did not fully understand all of the questions posed in that tumultuous time at the hospital. She did get the gist of the questions, but failed to completely understand nuances. That is consistent with her testimony as well.
[36] After hearing all of the evidence and having the opportunity to observe Ms. R. G. over many hours of testimony, I am satisfied she is attempting to provide the Court with her best memory of all of the events. She is neither too eager, nor too reticent in relating what happened to her. As Mr. Ofiara stated, her manner is "unvarnished".
[37] She readily admitted facts which do not cast her in such a favourable light.
[38] At all times her testimony in court appears to be sober and with appropriate affect and demeanour. She is a quiet and soft spoken witness who at times was genuinely affected by emotive recall. One example was in cross-examination when she was questioned yet again about the sequence of events on the floor and potential inconsistencies about the origin of the knife, she cried as she said she recalled the knife pointed at her throat, and that anyone in her position would be scared. Her emotional outburst was spontaneous, and appeared to be genuine.
[39] She cowered and showed fear when the defendant made faces at her from the prisoners dock and at one point asked the Court to make him stop. Her sincerity of commitment to telling the truth is accepted by the Court.
[40] The honesty of her evidence is accepted by the Court. Reliability of such evidence is another question, and thus it must be carefully assessed.
4:2 Inconsistencies in her Evidence
[41] The examination in chief of R. G. consists of only 33 pages of transcript on July 24th. Her cross-examination continued that day, and also on Aug.18th and Oct.6th. It would be very surprising indeed if any witness would be entirely consistent over such a prolonged and skilful cross-examination.
[42] Some matters alleged to be inconsistent actually were established to be consistent throughout. One example is the demonstration of how far her pants were pulled down by the defendant before she was violated. In Court, the witness showed how her pants were pulled down below her knees and part way down the shin. Although it was suggested that was different from her video statement, it was consistent. Another example was the utterance Ms. R. G. said Mr. Sutherland made to her when she resisted his advances. Although the video transcript said something else in error, counsel agreed on playing that portion of the actual video that the witness was correct and the words she told the investigator that night were the same as her recall in the witness box.
[43] Many other matters alleged to be inconsistent were inconsequential or had been explained adequately. For instance, she says Yuk did nothing forceful to get her in the house, but that she felt intimidated and scared. The witness used the expression "force", it appeared she meant "compelled", rather than by employing physical acts of force.
[44] I do not intend to outline all of the minute dissection Mr. Zbarsky made of the evidence. A few prominent examples will suffice.
Noodles
[45] In examination in chief, Ms. R. G. did not speak about making noodles that day at Yuk's house, nor when she consumed them. She was asked many times about this in cross-examination. The time lines did appear to change. On her video, she said he apologized and she went back in and made noodles. In testimony she said she ate them then, but made them earlier in the day but was not hungry at that time.
[46] The real point Mr. Zbarsky makes is whether it is consistent that someone in great fear and operating under intimidation would eat noodles; and whether the witness is minimizing her domesticity with Mr. Sutherland.
[47] On the former, I bear in mind that on her evidence, he had just pushed her and caused her head injury. The pretence of some normalcy may have served to calm the defendant down and been an effort by her to ensure her continuing safety.
[48] On the latter, she is consistent that his residence is more a place to do drugs than anything else. She acknowledged making food there. She wandered mainly between two crack houses. She would have to eat somewhere. With her broken English, cooking/making noodles or heating them up is not really distinguished. This inconsistency is not significant.
Sequencing
[49] There was an issue as to whether she arrived at Yuk's house between 7:00 to 9:00 pm, or whether she bought beer before the store closed later than that. As well, she is inconsistent as to whether she bought the beer, when she got it, or if it was given to her. Nevertheless, she brought beer to the defendant's home when she got there that evening, wherever and whenever she acquired it.
[50] She said she was in the park when Mr. Evans arrived, she also said they went to the park. She may well have gone to the park during the day to drink and talk to her friends, whilst he was still at the racetrack, and believed that he was there because she had called him to come. He testified that he was at the park area behind the mall with her later. This discrepancy was insignificant in the scheme of things.
[51] She testified Jervis Evans was not coming along with her, so she decided to go herself to police. Here, the sequencing is just misplaced. He admitted he stopped off in the Food Court at the mall, and that she did not appear to see him when she walked by angrily before talking to security. Both Mr. Evans and Ms. R. G. said he was in the parking area of the mall with her. Both testified Mr. Sutherland was there behind the mall, and that there was distance between the defendant and herself.
[52] In her testimony of October 6, she agreed that Jervis met her at the General's house. This is also what he had said. It was more important to her that he met her, than the location they met.
[53] Ms. R. G. testified when asked in cross-examination that she saw Mr. Sutherland just prior to going to police. She did not say so in examination in chief, nor in her statement that night. She said it did not come to her mind at the time. One can understand why what he did to her that night played more prominence in her mind than a momentary squabble overseen by Mr. Evans and security.
Knife Location
[54] In examination in chief, Ms. R. G. stated Yuk picked up the knife and said he wanted to sleep with her. She saw him get it from the dresser. In her video statement at the hospital she said the knife was beside the couch. I am satisfied that her diagram shows that the dresser and the couch cushions are side by side. It is not inconsistent that she saw him obtain it right beside the cushions, and then that he laid it down beside the cushion after he pointed it at her throat.
[55] The fact she cannot remember if the sheath was on the knife or not is not so significant in all the circumstances given the traumatic nature of the encounter, and her degree of intoxication. She had also seen the knife before, because he always took it out when he smoked crack, according to her.
[56] Any internal inconsistencies were mainly on peripheral matters. Ms. R. G. was consistent on the core or essence of the allegations made here. As the Crown submitted, her story "hangs together". She wanted to leave the defendant's room. He would not let her and pushed her head against the wall. She said no to sex and tried to push Yuk away. A knife was pointed at her throat. He had vaginal unprotected sex with her against her will. He ejaculated, and semen was left on her underwear. She finally got out and he kept her phone, although she had asked for it back earlier. She had the intention to tell the police immediately and told that to Mr. Evans a short time later. Later that same day she went to police to report what Mr. Sutherland had done.
[57] I believe this part of her evidence.
4:3 Inconsistencies with other Witnesses
[58] It is trite to say that questions posed to a witness do not constitute evidence. It is only the testimony of the witness that holds evidentiary value. Of course, a witness may agree with or incorporate facts mentioned in a question when giving his or her answer, which then has evidentiary value.
[59] Numerous questions were put to Ms. R. G. in cross-examination, in which she did not adopt the suggestion or factual supposition. The substance of the question in those circumstances does not contradict the witness. For example, Mr. Zbarsky suggested to the witness that she had consensual sex with the defendant in the morning of May 3rd before the evening crack smoking incident with the other two women, and she vehemently denied that. Her evidence is not contradicted on that point. There is no evidence of any sexual interaction with the defendant earlier that day.
[60] I am not troubled by whether the witness thought the police did not show up at the appointed time to return to the hospital, or whether the police made arrangements to meet her at the Westwood Mall and she did not show up. Admittedly she never completed the sexual assault kit. Based on her nomadic existence and dependence on others, it is not surprising that the follow up meeting with the police did not happen as arranged. This is not a significant discrepancy.
[61] Ms. R. G. is somewhat inconsistent with details given by Mr. Evans. Both witnesses had great difficulty understanding where certain locations are shown on the aerial map exhibit. This is not surprising because the view is not one seen by either witness in the ordinary course. Mr. Evans is much farther from the mark, and Ms. R. G.'s evidence of locations is mostly corroborated by Officer Tonkin, who is familiar with the mall. This is her home turf, and Mr. Evans is clearly mistaken about where the police station was and the various entrances.
[62] Although the community police station is not accessed "through the mall" as Ms. R. G. stated, one could go from the park behind the mall through it, and then enter the police station from an entrance on the opposite side. I understand why Ms. R. G. would use this phraseology. She had gone to the washroom in the mall, and would then need to exit on the parking side to access the station. This is not inconsistent.
[63] Mr. Evans is a 58 year old man, a friend of Ms. R. G. for over six years. He is more a friend to her common law husband, and was asked to look out for her when he was in jail. She called him a close friend. He said the complainant called him early in the morning and he first saw her about three or four o'clock in the afternoon at a house in Malton. He corroborates that she called.
[64] Ms. R. G. and Mr. Evans differ on other issues such as the timing of her telephone call, the meeting place, and the fact Mr. Evans did not speak of an interval where they were drinking in the park behind the mall. He is to some extent disinterested, in that, notwithstanding the fact his friend said she was raped and injured, he went to the racetrack all day before he showed up at the General's house to meet her. He did not look to see where she was injured. He failed to notice blood on her shirt which the officers readily observed.
[65] I do not find Mr. Evans was trying to be untruthful. He just was rather indifferent to the whole event. That was the same feeling Ms. R. G. got from him, and why she said she just left him and went to the station on her own. His evidence does not cause the Court to doubt the reliability of Ms. R. G.'s evidence on those points.
4:4 Motive
[66] Motive is sometimes described in cases as "ulterior intention". "A motive for an act is the explanation of why the actor acted. A motive or series of motives logically arises before an act is committed. This might well be only at the unconscious level".
[67] There is no obligation on the defence here to establish anything. The defence need not show that the complainant had any motive to fabricate. If such is established, however, it may reasonably be considered in assessing whether the reasonable doubt standard has been met.
[68] Frequently, and especially in sexual crime prosecutions, the parties engage the trier(s) of fact in consideration as to whether the complainant had a motive to fabricate. This is a circumstance relevant to a complainant's credibility. There can be no suggestion; however of an onus on an accused to show that a principal Crown witness is lying. To conclude otherwise, impermissibly reverses the burden of proof and impinges upon the presumption of innocence.
[69] Nor does the Crown bear the burden of proving a lack of motive to fabricate on the part of the complainant. It is just one of many factors in the credibility assessment. Lack of motive to fabricate may be considered.
[70] As the Court explained in R. v. Batte:
What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of motive to fabricate evidence is only one factor to be considered in assessing credibility.
[71] The defence submits that Ms. R. G. is motivated to put the defendant in jail. That respectfully misstates her comment to Mr. Evans, that she wanted him to go to jail for what he did to her. She felt he should be punished for his acts. There was no generalized hostility to him for any other reason.
[72] Motive is a question of fact. In this case, the Court finds that Ms. R. G. has no discernable motive to fabricate her evidence. On the contrary, reporting the sexual assault to police in the neighbourhood community policing station tends to brand Ms. R. G. as a "rat" and may compromise her safety in this internecine community, which is the only community she is familiar with, particularly for the lifestyle she engages in.
[73] In addition, reporting Mr. Sutherland for such a serious offence would cut her off from one place of sanctuary she frequents in her peripatetic lifestyle. More importantly, for her, Mr. Sutherland was her conduit to the crack cocaine to which she was addicted. His absence in the community impairs her ability to readily access that drug.
[74] Thus, the absence of any motive to fabricate her evidence is a factor the Court can apply in assessing it.
4:5 Corroboration
[75] As previously adverted to in these reasons, Parliament has abrogated the need for corroborative evidence in sexual assault cases: see Criminal Code s.274. Section 274 however "does not insulate a complainant for one of the enumerated offences from application of the ordinary, but not stereotypical, application of the rules of evidence".
[76] Both counsel have made submissions on the evidence in this case which may be capable of corroborating or supporting Ms. R. G.'s evidence. Essentially, this evidence falls into three categories, which I will discuss:
(a) Police Evidence and Evidence of Injury
(b) Semen Evidence
(c) Evidence of Mr. Jervis Evans
(a) Police Evidence and Evidence of Injury
[77] Ms. R. G. described how her head was smashed against the wall, or where the door met the wall. The physical evidence as observed in the hospital and by the officer at the community station corroborates her assertion of receiving this injury. The photographic exhibits also depict that injury, which looks relatively fresh.
[78] Both Officer Tonkin and Officer Herren saw blood on the shirt Ms. R. G. was wearing before her clothes were seized. The police photographs show a new shirt the hospital provided for her.
[79] As previously outlined the cause of the injury is at issue in this case. However, the evidence is capable of corroborating her claim that it was inflicted by the defendant.
(b) Semen Evidence
[80] At the outset of the trial, and filed on consent, was the fact that semen originating from Mr. Sutherland was found in the complainant's underwear that was seized by police from her on May 3, 2014.
[81] The complainant's evidence is that she did not have sex with Mr. Sutherland within the week prior to the incident, or on that day, except by force at the time of the alleged offences. Her evidence stands, and is not contradicted by any other evidence on this point. Thus, the presence of Mr. Sutherland's semen in Ms. R. G.'s underwear is some evidence capable of corroborating her evidence of sexual contact. The issue of proof of lack of consent is separate. However, the fact that the complainant previously had sexual contact with the defendant is inadmissible for the purpose of supporting the inference that by reason of the sexual nature of that activity, the complainant is more likely to have consented to the activity that forms the subject-matter of the offence or is less worthy of belief (see Criminal Code s.276).
[82] Mr. Zbarsky argues that semen has no "shelf life", and that the Court ought to reject its presence as proof of the offence. He posits that it could be left on her underwear from a week before and asks the Court to take judicial notice of such. Although the burden rests on the Crown, neither party asked the complainant if she changed her underwear and such reasoning is entirely speculative in these circumstances and without scientific or other foundation. The Crown established the chain of continuity of the underwear. In my view, the defence should have made the suggestion to the witness if relying on it for an innocent explanation, so that the witness would have an opportunity to comment. This is a classic application of the principle in Browne v. Dunn. It is a requirement that the witness be confronted on an important, significant or essential matter.
[83] The presence of Mr. Sutherland's semen located on Ms. R. G.'s underwear, which she was wearing at the time of the assault, is strongly corroborative evidence of her complaint.
(c) Evidence of Jervis Evans
[84] Mr. Evans is a friend of Ms. R. G.'s common law husband and he told him he would look after her when he was in jail. He said the complainant called him early in the morning, about 4:00 am and he first saw her about three or four or five o'clock in the afternoon at a house in Malton, which generally corroborates that she called him in the early morning hours. He went to Woodbine Racetrack all day before he looked for her.
[85] Ms. R. G. told him she had been raped, hit on the head, a phone was stolen, and it happened with a knife.
[86] When he saw her she appeared sad. She told him she was hit in the head, but he did not look at her head.
[87] The demeanour of a complainant of sexual abuse, shortly following the alleged offence, may hold probative value as to the likelihood of the event occurring as described by the complainant. It is not determinative. In this case, Mr. Evans did not see Ms. R. G. for a number of hours after the conduct complained of.
[88] Ms. R. G. kept on complaining about what happened.
[89] The fact that a complainant pursues a complaint cannot be a piece of evidence bolstering her credibility; otherwise it could have the effect of reversing the onus of proof.
[90] She told him to follow her because she was going to the police station. Mr. Evans said he did that but she disappeared, and he looked for her finding her less than five minutes later behind the mall on a driveway and he believed arguing with Mr. Sutherland, although he could not hear what was said. He was not surprised that she would go to the park to smoke a cigarette and talk to her friends. They were distant to him and could not hear what was said. She walked toward him and passed him. This corroborates that the defendant was behind the mall just prior to the complaint, and that she was not happy with him. Mr. Evans did not hear the words between them. There is no evidence contradicting her assertion that Mr. Sutherland said he was sorry and wanted her to come to his home, and she adamantly refused.
[91] That she then went on her own to security and the police does not detract from the fact that she wanted the support of Mr. Evans to go to the mall and the police. It turned out otherwise because the security guard's wife ran into Ms. R. G. in the washroom and she told her husband what had happened, and he then took her to the station instead.
[92] She called Mr. Evans after 8:00 pm to tell him she was in the hospital, and then after midnight to ask him not to leave because she wanted to see him. He next saw her again at the General's house about four hours later after she had gone to the police station and the hospital. This evidence is generally corroborative of the support she sought from Mr. Evans in following through with the complaint.
5: CONCLUSION
[93] The burden of proof in a credibility case such as this one, remains upon the Crown on all essential elements of each charge beyond a reasonable doubt.
[94] Ms. R. G.'s manner of testifying, lifestyle and addictions require her evidence to receive careful scrutiny. The Court has done so. She is not incapable of relating what happened to her that night. She is credible, but does her evidence meet the onerous application of the burden on the Crown to prove the offences? I also bear in mind a number of areas of her testimony which are supported by the admitted evidence and the evidence of other witnesses.
[95] Ms. R. G.'s life at the time of the allegations tended to repeat the same acts: searching for money and borrowing money; buying beer; buying crack cocaine; and getting high. She was co-dependent with Mr. Sutherland. As the Crown submitted, as long as there was money for drugs and drugs available, and if nothing bad happened between the two of them, she was content to be in that horrible situation. Although her choices may defy common sense, the nature of her addictions, and her situation with her husband in jail, led to this situation. This endless cycle was broken by an intervening event- the terrible things that happened in the early morning hours of May 3, 2014.
Assault Cause Bodily Harm
[96] Mr. Zbarsky acknowledges that the Crown case is not so weak on the assault bodily harm charge. Ms. R. G. was injured. By its nature and position, the scalp injury is highly unlikely to be self-inflicted. It is fully consistent with what she said happened, and she is not contradicted in that area. The nature of the injury is corroborated by temporal photographs of her head and scalp area taken by police. The injury was seen by Police Constable Tonkin and Police Constable Herren, who also observed some uniform staining to her shirt which appeared to be blood. Curiously, Mr. Evans testified he did not observe the injury; however his cursory look without reference to the area covered by Ms. R. G.'s hair explains why he did not see it. Ms. R. G. certainly told him about it.
[97] Officer Tonkin said the gash was beside her right eye by the temple and under her hair. The injury required stitches, and cannot be said to be trifling or transient, and thus bodily harm has been proven beyond a reasonable doubt.
[98] The issue is how Ms. R. G. obtained the injury and at whose hands. I believe her evidence that Mr. Sutherland inflicted this blow because Ms. R. G. wanted to leave and he did not want her to do so. It was a strong message for her to submit.
[99] Her evidence is not contradicted as to how the injury was caused. I accept it on this issue beyond a reasonable doubt.
Theft Under
[100] The cellphone in question was purchased by Ms. R. G.'s husband for her. She paid the bills for it, and it was in her name. Occasionally, the defendant had the use of it. He borrowed it to call his drug dealer. With her permission, he kept it sometimes for hours when he wanted to make calls. He gave the number to his lawyer to contact him. Ms. R. G. said she mostly had it, but conceded that the defendant was sometimes allowed to have it for a time. She gave him the phone "because she needed the smoke".
[101] Mr. Sutherland had the phone that night to arrange to get crack cocaine. She handed it to him. It is not contested that Ms. R. G. asked for its return to call police after her head was injured. The defendant refused to give it to her. He converted the phone to his own use with the intention to deprive her from using it to get help. At that point the continued retention of her property constitutes a theft.
[102] Any possible colour of right to that phone is extinguished by the demand for its return. I accept that Ms. R. G. asked for it back. She knew she had an injury to her head which was bleeding. She could have summonsed help with her phone to get to the hospital. He would not allow her to do so. He was motivated by self-interest to prevent her reporting the injury to anyone.
[103] The defendant is guilty of theft beyond a reasonable doubt.
Sexual Assault with a Weapon, Breach of Probation
[104] These three counts involve some similar elements. If the Crown has proven that the sexual attack involved a knife being pointed and displayed, that offence has been made out. Such a knife, if pointed at the throat of the complainant, whilst making demands for sex, would also of necessity be possessed for a purpose dangerous to the public peace. If Mr. Sutherland held the knife as described, it would be a "weapon" as defined in the Criminal Code, and any such possession was prohibited as a condition of the probation order imposed by Justice Atwood.
[105] The Court has considered the fact that Ms. R. G. returned to the squalid room of the defendant after she received the head injury. She said she was scared and felt she had no option. Her subjective view was that he would hurt her if she did not. In all the circumstances, it was reasonably held. He stood outside staring at her. He said she could not leave before she was pushed against the wall. He had her phone, her means to communicate with the outside world. His general reputation in the community also had her scared.
[106] The complainant was extremely vulnerable and isolated at the time the knife was displayed to her and pointed at her. It was produced after she said "No" to any sex. This display was accompanied by his abusive words about his capability that reasonably would cause her to fear for her safety.
[107] At all times, the knife was within easy reach of Mr. Sutherland.
[108] Simply put, I believe the evidence of R. G. that Mr. Sutherland had intercourse with her against her will after she protested. She was consistent that Mr. Sutherland raped her at knife point. Her evidence tends to be strongly corroborated by the presence of his semen, confirmed through DNA testing, in her underwear.
[109] Her testimony about waiting for the defendant to fall asleep, and testing her safe exit by perhaps getting a drink of water first, has the ring of truth. The only way to get out of that room was to be faster than he was to unlock the door and leave quickly.
[110] Even then, when he realized she was leaving, he pursued her with a bottle raised as far as the roadway.
[111] Any inconsistencies in her evidence are on tangential points and do not raise a reasonable doubt, when considered in light of the totality of the evidence.
[112] Her evidence about this act is not contradicted by any other evidence.
[113] Hopeton Sutherland is found guilty of all four offences beyond a reasonable doubt.
Released: October 22, 2014
Signed: Justice N.S. Kastner