Court File and Parties
Court File No.: 14-001394
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Brendan Gosse
Before: Justice Robert S. Gee
Trial heard: December 8, 2014
Reasons for Judgment released: January 5, 2015
Counsel:
- G. Orsini, for the Crown
- D. Henderson, for the Accused
Introduction
[1] Brendan Gosse is charged with assault, choking, threatening and the forcible confinement of his then and perhaps still, girlfriend Denise Cox on July 22nd, 2014.
[2] The police attended Ms. Cox's residence the morning of July 22, 2014 as a result of a 9-1-1 call made by her son Alex. As part of their investigation, the police took a statement from Ms. Cox that day. The statement was made at the Brantford Police station and was videotaped and under oath. As a result of allegations she made in this statement, Mr. Gosse was charged with the offences before the court.
[3] Ms. Cox has subsequently recanted the allegations she made on July 22nd, both in a second video statement she made on September 24, 2014 and in her testimony at trial.
[4] As a result of her recantation, the Crown applied to have Ms. Cox declared an adverse witness, allowing the Crown to cross examine her at trial as well as to have her July 22, 2014 statement admitted for the truth of its contents. Both of these applications by the Crown were granted. As such, whether the Crown has proven Mr. Gosse's guilt in this matter will depend primarily on my assessment of Ms. Cox's testimony and her statement of July 22nd.
The Evidence at Trial
[5] To start, I would point out that Ms. Cox while under oath has given two different versions of what she states occurred on July 22, 2014 between her and Mr. Gosse. Both versions cannot be true. At the very least, in one of the versions she was, while under oath, giving a version of events she knew was untrue. Given that Ms. Cox is a person who is prepared to be untruthful while under oath, all aspects of her testimony must be approached with caution.
[6] In her testimony at trial, Ms. Cox provided explanations for why she gave a purported untruthful statement to the police on July 22nd, and an explanation for what she states actually occurred that night and morning. However, I do not find Ms. Cox's testimony in court to be believable.
[7] She testified that the conflict between her and Mr. Gosse on July 22nd started not long before police were called. Mr. Gosse had asked her to engage in a particular form of sexual activity that she was unwilling to partake in, that being a threesome. According to Ms. Cox, this was not the first time Mr. Gosse made such a request and on each time he asked, she made it clear to him she was not interested.
[8] According to Ms. Cox when Mr. Gosse again made such a request on July 22nd, this angered her. This led to an argument in the living room of her residence. She described the argument as one in which their voices were raised, but they "were not screaming at each other." At some point during the argument her 10 year old son Alex awoke and came downstairs. When he did the argument stopped. He went back upstairs and Ms. Cox went up too. While upstairs according to Ms. Cox Alex noticed some marks she had on her neck and face and became concerned Mr. Gosse had been assaultive to her during the argument. As a result of his concern, Alex phoned 9-1-1.
[9] Within 15 minutes of the call, the police were at her door. Upon their arrival Ms. Cox had gone back down and was on the couch with her youngest son, Ryan, who was then 22 months old.
[10] The marks on her neck and face were not, according to Ms. Cox from any assaultive behaviour of Mr. Gosse during the course of their argument. Those marks came during the course of sexual activity they engaged in several hours before. Apparently Mr. Gosse is an aficionado of rough sex, which included choking and slapping his partner. Ms. Cox says she was also interested in this type of sexual activity and during sex that night Mr. Gosse had choked her and slapped her as well as threatened to bury her in the basement of the house. All this activity between them, according to Ms. Cox was consensual, notwithstanding the marks left on her as a result of it.
[11] The statement Ms. Cox gave the police on July 22nd was completely different. At that time she stated that she and Mr. Gosse argued the night before when he had accused her of being unfaithful. They argued about this until Ms. Cox fell asleep sometime around 2:00 a.m. When she woke in the morning, the argument picked up right where it left off. Mr. Gosse had been looking through messages on her phone and on her Facebook account and was continuing to accuse her of cheating on him. Ms. Cox denied his accusations and as the argument grew more heated, she told him to pack his belongings and leave. Mr. Gosse continued to yell and call Ms. Cox derogatory names and while doing so he struck her in the face. After hitting her, he continued to accuse her of cheating and she continued to deny it. Mr. Gosse then is alleged to have started choking her and hitting her more.
[12] At this point Ms. Cox's son Alex came down stairs and she used this opportunity to take Alex back upstairs and use the washroom. As she came out of the washroom, she saw Alex, who was concerned about what was happening, and she told him to call 9-1-1. Ms. Cox went back to the living room and she and Mr. Gosse continued to argue. She at that time threatened to call the police. Mr. Gosse is alleged to have told her to go ahead because by the time they arrived he would "bury her in the basement."
Analysis of the Evidence
[13] In assessing the evidence of Ms. Cox, as stated earlier, I do not believe the testimony she gave in court or her recantation. The basis for this disbelief stems from the number of inconsistencies in her testimony as well as the inherent implausibility of a number of aspects of her testimony.
[14] Some of the more apparent inconsistencies are as follows. First in her examination in chief, Ms. Cox was asked why she gave a statement to the police on July 22nd that she was now claiming was untrue. The reasons she gave were that she was upset and angry with Mr. Gosse over his request to engage in a threesome and that she had felt pressured by the police into giving a statement. In cross examination she was again asked for the reasons she lied on July 22nd. At this time she added that she was not thinking clearly at the time of the July 22nd statement because she was intoxicated and suffers from anxiety and was not on her medication.
[15] In dealing with this inconsistency in her testimony, I would note after having reviewed her July 22nd statement during the course of trial, there was nothing in her appearance during the statement that would lead one to believe she was under the influence of alcohol. It was suggested to her in cross examination, and she readily agreed, that she had been slurring her speech while giving the statement, but I would not agree with this characterization. As well I would note that none of the officers who testified at trial and who had dealings with Ms. Cox on July 22nd were cross examined about any observations they may have made of her state of sobriety or alcohol consumption at that time. In these circumstances I specifically reject any notion that alcohol played any factor in Ms. Cox's July 22nd statement.
[16] Ms. Cox also specifically denied, when being examined in chief, that she had told Mr. Gosse to leave her residence during the course of their argument. This is inconsistent, not just with her July 22nd statement, but also inconsistent with the statement she gave to police on September 24, 2014, in which she indicated she did ask him to leave.
[17] Then when being cross examined, she was asked if when police arrived Mr. Gosse had any bags packed. She indicated he did. This admission would seem to contradict her previous assertion that she had not asked him to leave. Ms. Cox seemed to appreciate the significance of the admission he packed his bags, because she then stated this was an issue they had discussed earlier, presumably meaning earlier in their argument, and had worked out.
[18] I do not accept this explanation by her. She was clear earlier in her examination she had not asked him to leave. As well, on any version of the events of that day that she has given, she was angry with Mr. Gosse, and the issues between them had not been resolved. It is clear that she only came up with this explanation for the bags being packed when she realized it contradicted her previous testimony.
[19] A further inconsistency was whether Ms. Cox and Mr. Gosse attended a fetish party the night before. In her September 24th statement, Ms. Cox stated they had gone to a party arranged through a fetish website that Mr. Gosse belonged to. Although the police did not explicitly ask her when they went to the party, it is clear from the statement that she meant they had gone the night before. It was clear from this statement that it was at or around the time they were at this party that the issue of a threesome was raised that provided the genesis for the argument and that it led directly to her request he leave.
[20] In her cross examination though, she stated that this party had taken place sometime before July 22nd and she never meant to leave the impression it had occurred that night. The reasonable interpretation of the statement she gave September 24th clearly demonstrates this assertion by Ms. Cox in her testimony directly contradicts the statement she gave earlier.
[21] Ms. Cox's testimony about the consensual sexual activity I also find unbelievable. That some people might like to engage in rough sex seems apparent. As was discussed at trial, there seem to be websites with many members dedicated to this type of activity. But even accepting this premise, the sexual activity described by Ms. Cox would seem, at the very least, to be on the extreme end if not beyond the acceptable parameters of this type of behaviour.
[22] She described the activity they engaged in as being "choked-out" by Mr. Gosse as well as being struck by him in her face.
[23] At the time this occurred, she was a single parent raising four children under the age of 12. It was also apparent from the evidence she had an open file with the Children's Aid Society.
[24] It would have been clear to her that the sexual activity she describes would leave marks on her that would be obvious to anyone who saw her. Even on the recanted version she testified to, the marks left on her were apparent to her son Alex, and concerning enough to him that he called 9-1-1. Based on this, I find it incomprehensible that she would knowingly engage in an activity that would leave marks on her that would frighten her children and potentially lead to police and CAS involvement.
[25] As well, the explanations she gave for purportedly providing an untruthful statement on July 22nd do not make sense.
[26] She stated it was because she was angry with Mr. Gosse and felt pressured by police.
[27] In dealing with her anger toward Mr. Gosse I would note that she testified that, although they were arguing, Ms. Cox described it more as raised voices, not yelling and they stopped when they heard Alex coming down the stairs. Once they stopped, they did not start arguing again, and in fact she was in the living room with him and her 22 month old son until the police arrived.
[28] To accept her testimony I would have to believe that as she stated, she was not so angry with him that she asked him to leave; she was not so angry with him that she felt it necessary to call police; and she was not so angry with him that she was unable to share a room with him. But she was so angry that sometime later, when at the police station, she concocted a story alleging she was the victim of several serious violent crimes at his hands. This scenario is simply unbelievable.
[29] As well, her claim that she was pressured by the police to give a statement is also unsupported by the evidence. How the police exerted this pressure on her was never clearly articulated by her.
[30] She stated she felt like she was required to give the police a statement, but it was made clear to her at the commencement of her statement July 22nd that she was under no such obligation. It was also explained to her that she could change her mind at any point and leave if she so wished. As well, the police, before making her statement, gave her the opportunity to seek legal advice, which she declined. Based on this, the assertion she felt compelled to give a statement is not borne out by the evidence.
[31] The police witnesses in cross examination were also questioned about their intention to call the CAS as a result of this incident, which, they admitted they intended to do. I took it from this line of questioning that the implication was Ms. Cox would feel compelled to give a statement that did not implicate her in what perhaps could be viewed as inappropriate behaviour. However, when Ms. Cox was asked about the implications of CAS involvement, she denied this had any influence on her, and in fact, stated she called the CAS herself to advise them of what was taking place, prior to leaving for the police station to make her statement.
[32] Another area of pressure she claims to have felt from the police concerned her children. Ms. Cox stated the police told her that when they took her to the police station for her statement she would either have to take her kids with her or find a babysitter for them. She implied this somehow influenced her to make a false statement. I do not see how it could. As stated, she is a single parent to four children, the oldest of whom is 12 and the youngest being 22 months. That the police were not going to leave those children alone in the residence and that they would either have to have someone come to care for them or go to the station with them, was doing nothing more than stating the obvious.
[33] One further reason she gave for feeling pressured into giving a false statement was that she was embarrassed to talk about her sex life in front of her children. No doubt she would be, however when she gave her statement, her children were not present with her in the interview room. As such, any embarrassment she may have felt about speaking about such issues in front of them was not present.
[34] Notwithstanding these reasons for rejecting the in court testimony and recantation of Ms. Cox, one further reason I have for rejecting it is that it conflicts with other evidence which I do accept. The evidence that I do accept to which I am referring is the statement she gave under oath on July 22, 2014.
[35] Courts have consistently held that it is acceptable to reject the evidence of an accused based on a considered and reasoned acceptance, beyond a reasonable doubt of the truth of conflicting evidence. (See: R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at par. 53; leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69, R. v. Jaura, [2006] O.J. No. 4157 at par. 20; and R. v. R.E.M., [2008] S.C.C. No. 51 at par. 66)
[36] I see no reason why the same principle ought not apply here.
[37] After viewing and listening carefully to the statement Ms. Cox gave July 22nd, and notwithstanding her explanations concerning it since, I accept it as a truthful account of what occurred between her and Mr. Gosse that day.
[38] As noted earlier, the circumstances under which the statement was made clearly demonstrate it was given free from any undue pressure by the police. The circumstances also clearly demonstrate the statement was made voluntarily.
[39] In fact, I was struck by the level of respect and kindness demonstrated to Ms. Cox by Officer Korda during the course of the statement. As noted, the purpose of the statement was clearly explained to her. She was advised that she was under no obligation to make one, the ability to obtain legal advice was offered to her and she was advised she could end the statement and leave at any time she wished. All this, she stated, she understood.
[40] The statement as noted was under oath, and it was also made clear to her it was being videotaped and recorded.
[41] As for the statement itself, I would note it was taken not long after the events were alleged to have occurred. It was given in Ms. Cox's own words and she was not led or had suggestions put to her by Officer Korda. As well, as noted earlier, I find it was not affected by any alcohol or drug consumption by Ms. Cox.
[42] In terms of the content of the statement, I found it to be very compelling. It contained a level of detail that would belie any notion it was concocted on the spot.
[43] The description of the choking and assaultive behaviour she was subject to at the hands of Mr. Gosse is entirely consistent with the injuries she suffered. Also, the scenario she described was consistent with her son Alex recognizing something serious and violent was occurring.
[44] Additionally telling, was Ms. Cox's demeanour during the interview. In short, she was distraught and crying throughout. This emotional reaction was also consistent with the version of events she was describing, and as well, further serves to refute any notion she was concocting an untruthful tale. Even when Officer Korda left the interview room and she was alone, Ms. Cox continued to cry and display a level of emotion consistent with the truthfulness of her statement.
[45] For all these reasons, I find that Ms. Cox was being truthful when she gave her statement on July 22nd, 2014 and as noted, I find it depicts what actually occurred between her and Mr. Gosse that day.
Conclusion
[46] Given this finding I am satisfied that the Crown has proven Mr. Gosse assaulted Ms. Cox on July 22, 2014 and a finding of guilt will be made in relation to that charge.
[47] The choking charge, as it is known, requires the Crown to prove the accused choked the complainant with the intent to assist him in committing an indictable offence. In this case Ms. Cox stated Mr. Gosse choked her and while doing so continued to hit her. In light of this I am satisfied he choked her in order to attempt to make her incapable of resisting his further assault of her. Based on this, a finding of guilt will be made on the choking charge as well.
[48] A finding of guilt will also be made on the threatening charge, given Ms. Cox stated Mr. Gosse said he would bury her in the basement if she were to call the police.
[49] In relation to the final count, to make a finding of guilt on a charge of unlawful confinement, I must be satisfied Mr. Gosse coercively restrained Ms. Cox for a significant period. Ms. Cox stated that during the course of the incident she was able to go upstairs and use the washroom without Mr. Gosse, and as well, she was able to bring her son Ryan back down with her. The only time she stated he directed her movements or prevented her from moving as she wished was when she got up to answer the door when the police knocked and he told her to sit back down. Given the brief nature of this and the equivocal nature of the other evidence in this regard, I am not satisfied the Crown has proven this charge and as such it will be dismissed.
Dated at Brantford, Ontario
This 5th day of January 2015.
The Honourable Mr. Justice R.S. Gee