Court File and Parties

Court File No.: Central East – Newmarket – 13-01402 Date: 2015-06-10

Ontario Court of Justice

Between: Her Majesty the Queen — and — R.W.

Before: Justice P.N. Bourque

Counsel:

• B. McCallion, for the Crown
• J. Rabinovitch, for the accused R.W.

Reasons for Judgment

Released on June 10, 2015

Overview

[1] The defendant was staying with the complainant at her mother's condominium. The complainant is alleging that during the time of his stay, for about a year up to February 19, 2013, he assaulted her on several occasions, including breaking her nose. He assaulted her with his fists, choked her and struck her with a chair leg, a towel bar, and sexually assaulted her.

Complainant's Evidence

[2] The complainant is 30 years of age and was in a romantic relationship with the defendant. They were residing at her mother's condo with her mother and her mother's friend. She states that the defendant was studying for a truck driver's exam and she and her mother were supporting him at the time.

[3] She testified that she asked her mother to call the police on February 19, 2013. She stated that she was trying that evening to wake him and that he became enraged with her. He chased her into the bedroom and tried to suffocate her with a pillow. He then chased her out into the bathroom where he pulled off the towel bar and struck her with it. He then chased her into the bedroom, broke a chair and took a leg off the chair and struck her with it.

[4] She testified that he threatened to kill her and stated that he would then go to jail. She says that he pushed her up against the wall in the hallway and waved his fist in her face and struck her with his fist. She stated that she ran away and locked herself in her mother's bedroom. He then went outside to smoke a cigarette and after going to the garbage area in the hallway to listen for him, she went back inside and "Skyped" her mother (who was out of the condo at the time). She asked her mother to call 911. Her mother did so, and the police then arrived.

[5] The witness identified 4 pages of photographs which show the broken chair, the general dishevelled nature of the living room, and bruises on her body and her arms.

[6] She spoke of an incident which she believes happened in September of 2012. She stated that she and the defendant were arguing while on their bed. She was getting ready to go out and she says that he did not want her to go out. She described in words and gestures that she turned away from him and upon turning back, he struck her nose with his forehead. She said that it was very painful and it was bleeding. Her mother's friend M.A. came into the room and he and the defendant took her to the hospital. She stated that her nose was broken. She did not tell the doctor what had actually happened but told them a story that the defendant made up. Filed as Exhibits 2 and 3 are two pictures taken from her phone on the day of the incident and several days later showing a mark on her nose and extensive bruising under her eyes.

[7] She also stated that in January 2013, the defendant forced her to have anal sex by holding her and putting a part of his body up her anus. She stated that it was very painful and she screamed. She stated that her mother came from her room to help her but the defendant just went into the living room.

[8] In cross-examination, she stated that with regard to the incident of February 19, 2013, she was trying to wake him up at approximately 11:00 p.m. She explained this by saying that he had been late for court that morning and he didn't want to be late for court the next morning, and that for some reason, which seems unclear, he wanted to be woken up at this time. She admitted that in her statement to the police taken the next day, she admitted that he actually did not want to be woken up and as part of the exercise in waking him up, she kicked him. In the witness stand, she denied kicking him.

[9] In cross-examination, there were several further contradictions noted:

(i) In her evidence about the February 2013 incident, she stated that she was waking up the defendant so another boarder in the house (M.) could watch TV. In her statement to the police, she said it was because she could watch TV. She also said in cross-examination that M. was out of the house;

(ii) She stated to the police who first arrived at the scene in February 2013, that she was arguing with the defendant about her wanting to go out that night and that is what caused him to assault her. She did not mention that she was waking him up for some sort of work reason;

(iii) She told the court that the defendant ripped a towel rack off the wall but in her statement to the police, she said that it was on the floor and had come off the wall days earlier;

(iv) She told the court that when he hit her with the chair leg, it was painful and she was frightened that he would kill her, while in her statement to the police, she said that it did not hurt and she did not believe that he would kill her;

(v) In her statement to the police, she said that at one point, she got a knife from the kitchen and said that she was going to kill herself. She did not mention this in her courtroom testimony;

(vi) After she had been shown many such differences, she said that it was all true and attributed differences to "language issues";

(vii) With regard to the incident in September 2012, she not only told the doctors a story that the injury was an accident from "play fighting", she told her mother a different story, that a rack fell on her;

(viii) In her cross-examination, she would ramble on at great length about a lot of other issues, such as his being in debt to his mother and him giving her gifts which had come from her mother;

(ix) With regard to the allegation of sexual assault from early in 2013, when asked why she continued to live with the defendant, and after her mother was aware of his sexual assault upon her, did she not ask him to leave her. She replied that she did and he slept in his car for a while. She never gave this detail to the police. She also could not explain how she and her mother let him return to the house very shortly thereafter.

Defendant's Evidence

[10] The defendant testified in his own defence. It was his evidence that he had never had sex with the complainant at any time without her consent. He also files documents which he prepared contemporaneously with his trucking trip from February 8-11, 2013. While the complainant was not precise about the date of this offence, these are some likely dates, and if I accept the documents, they put some doubt into the allegations of the complainant.

[11] With regard to the allegation of assault from September 11, 2012, he stated that they were on the bed together and she was reaching for something in his hand. He described it as being playful. He said that they were pushing playfully back and forth and he turned around and his head hit her nose. He stated that she immediately began to bleed profusely and they went to the hospital. He said that he called her mother from the hospital and told her what had happened. She said that after an x-ray, there was no broken bone and he does not know if she was given any pain killers. There was no call to the police from anyone.

[12] With regard to the events of February 19, 2013, he states that he had been looking for a new job and had made an appointment to see another prospective employer the next day. He had been in court that day as he had missed a previous court appearance and had to file papers to request a re-hearing. He stated that he was tired and went to bed early, about 8:00 p.m. He stated that he never gave the complainant any instructions to wake him up and when she did wake him up between 11:30 p.m. and 12:00 a.m., he was very surprised. He stated that she seemed suspicious of him saying he had a job appointment the next day and wanted him to call the employer. She was getting agitated and when he refused due to the lateness of the hour, she pushed him and she went to the kitchen and got a knife, pointed it at him, handed him a phone and told him to call. He did not do so and took the knife from her. He went to leave and she tried to bar his way and he pushed past her, went out the door of the apartment and walked down to a local park. He walked around for about 1/2 hour, returned, and when he did so, the police answered the door and arrested him.

Analysis

[13] The burden remains upon the Crown to prove the essential elements of these offences beyond a reasonable doubt. As the defendant has testified and provided explanations which, if believed, would afford him a total defence, I must assess his evidence in accordance with the doctrine in R. v. W.D. which states:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[14] With regard to the allegation of sexual assault, it is a simple denial. In that regard, the Crown in his cross-examination did not raise any issues that would put his denial in doubt. With regard to his documents filed as Exhibit 5 (the truck reporting documents), they support his assertion that he was probably not in the house the most likely date that she says the event happened.

[15] With regard to the assault bodily harm in September 2012, it was his assertion that the broken nose of the complainant was due to an accident during a "play fight". In this regard, his version of events is supported by the story that the complainant told the doctor at the hospital. Perhaps of more importance is the evidence of the defendant in the witness box. While she described them having a pushing match rather than a "play fight", her description of the contact was not conclusive in it being some sort of intentional "head butt". While she believed he intended to hit her, her description of the event was also consistent with an "accident".

[16] With regard to the events of February 19, 2013, his statement of the events was also not shaken in cross-examination. I find his version of the "waking up" by the complainant much more logical than the complainant's. I find it impossible to believe that he would want to be woken up in the evening for some sort of court date the next morning. It is more likely that she woke him up for her own reasons, and the one he stated does not seem unlikely.

[17] With regard to his assertion that she pointed a knife at him, she confirmed (in cross-examination) that she indeed picked up a knife. It seems much more likely that she was using it for some type of action towards the defendant rather than trying to cause harm to herself. In her statement to the police, but not in her evidence in-chief, she confirms one of his details, that the towel rack had come off the wall at an earlier date, not on the evening of the incident as she said in her evidence in court.

[18] With regard to the allegation of breaking the chair, his assertion that it also had been broken some days earlier, would be confirmed by the photographic evidence which shows the chair carefully propped up against another chair, and not down on the floor as her description of the events would suggest. In cross-examination, none of the other details of his recitation was seriously challenged.

[19] Upon a review of her evidence, I find that there were several discrepancies as noted above in her version of the events of February 19, 2013. The cumulative effect of these discrepancies would make it unsafe to convict the defendant for this allegation, even if his evidence did not raise a reasonable doubt in my mind.

[20] With regard to the allegation of sexual assault from earlier in February, I find there are several difficulties with her recitation of the events. Not the least is the difficulty in seeing how he was able to rape her anally in the position she described herself. Her addition to her testimony in re-examination that she somehow was turned around by him points to a witness who was attempting to change her evidence to conform to her previous statements. There are lots of reasons why a sexual assault victim would be reluctant to report an assault to the police. The fact that she did not do so until after the incident of February 19, 2013 does not impair her credibility. However, I cannot accept her assertions that her visit to the doctor sometime afterward was as she asserts, related in any way to some injury she may have suffered (Exhibit 1).

[21] With regard to the allegation of assault in September 2012, I have already noted several discrepancies in her version, the most important of which is her telling several people several different versions of what transpired. Clearly she suffered a non-displacement fracture to her nose. This was a real injury and was directly related to the actions of the defendant. However, in divining his intentions, it would, in my opinion, be dangerous to be satisfied beyond a reasonable doubt by her story that his actions were a result of an intention to harm her.

Conclusion

[22] Ultimately, based upon all of the evidence that I have heard, I am not satisfied beyond a reasonable doubt that the defendant assaulted the complainant in any fashion between September 2012 and February 19, 2013.

[23] I resolve this doubt in favour of the defendant and I find him not guilty of all counts.

Signed: Justice P.N. Bourque

Released: June 10, 2015