Court File and Parties

Ontario Court of Justice

Date: May 10, 2016

Court File No.: 15-SA5051

Between:

Her Majesty the Queen

— and —

Normand Beaudoin

Before: Justice Bourgeois

Heard on: May 2nd and 3rd, 2016

Reasons for Judgment released on: May 10th, 2016

Counsel

Mr. Julien Lalande — counsel for the Crown

Ms. Sonya Notturno — counsel for the defendant Normand Beaudoin

Judgment

Bourgeois J.:

Introduction

[1] The accused is charged with having committed an aggravated sexual assault, contrary to sec. 273(2) of the Criminal Code of Canada. It is alleged that he had intercourse with the complainant without her consent and without informing her of his health status, having been diagnosed with AIDS.

[2] The only issue raised in this case is whether the Crown proved, beyond a reasonable doubt, that the accused sexually assaulted the complainant. Should that be made out, the parties agree that the aggravated component of the charge will have been met as it is not contested that the accused is HIV positive, therefore having exposed the complainant to a risk of endangering her life. It is also agreed that in the end, the complainant did not contract the disease.

[3] Other admissions were also made at the outset of the trial and they are: the identity of the accused; the date of the alleged offence being January 12, 2015 and the jurisdiction of the alleged offence having taken place in Ottawa. The voluntariness of the statement the accused provided to the police upon his arrest was also admitted and the statement was filed on consent within the Crown's case. It was also on consent that both witnesses called by the Crown, the complainant and the accused's wife, testified pursuant to s. 486.1 and s. 715.2 of the Criminal Code of Canada as both parties agreed they met the ambit of the definition of adults with mental or intellectual disability covered by those sections. In fact, in the case of the complainant, a report jointly prepared by a Psychometrist Elizabeth Glennie and Dr. Susan Farrell for The Royal, Regional Dual Diagnosis Consultation Team was filed, placing the complainant at "an overall intellectual ability that falls within the mild range on intellectual disability corresponding to the 1st percentile." The assessment results were summarized at page 1 of the report: "Your overall measure of general intellectual functioning is considered to be extremely low (0.2 percentile) which means your intellectual functioning is equal to or better than 0.2 percent of people your age."

[4] By way of background, the accused and his wife met the complainant at parenting classes offered by the Children's Aid Society. The complainant's daughter was with her mother, while the accused and his wife's children were with the accused's sister. Their socializing outside classes was limited to attending a coffee shop together once or twice and Facebook messages exchanged between what appeared to be the accused and the complainant. Those messages were also admitted in evidence on consent as both parties also agreed that these messages, even though undated, were exchanged before the alleged incident date of January 12, 2015.

[5] The allegations arose after the complainant attended the couple's apartment to help them clean it and prepare to move. She missed her bus to return home and therefore stayed overnight. The three of them slept in the couple's bed and this is where, during the night, the complainant explains that she woke up to the accused having intercourse with her, without her consent.

[6] I will therefore review the evidence of each of the witnesses and embark upon the analysis of the evidence presented in this case in order to determine whether the Crown has proved the charge against the accused, beyond a reasonable doubt.

The Evidence

Complainant's Testimony

[7] The complainant testified that she is 21 years now, with a date of birth of […], 1995. She was therefore 19 years old at the time of the alleged offence on January 12, 2015. At that time, she had a baby girl born on May 27, 2014 and was pregnant again. Even though it was difficult for her to describe how far along she was in her second pregnancy, I understood it or concluded from her evidence that she was in the early weeks or months of her second pregnancy. Her parents are separated and at that time, she lived between her parents' homes. She now resides with her mother and her step-dad.

[8] She explained that she took the bus from her neighborhood in the west end of the city to attend the couple's apartment in the east end and they met her somewhere near the apartment at a bus stop near a shopping center. She did not know where they lived, but the accused had given her their address over the phone. She had also asked the address through Facebook. She understood she was attending the accused and his wife's apartment to help them clean as someone was coming in the next days to inspect it. She described the apartment as being a 2 bedroom apartment, very dirty or messy, more specifically the couch was dirty and the spare bedroom was full with stuff and boxes even on the bed. She thought the apartment was on the 4th floor of a 4-storey building apartment.

[9] She testified that during the evening, the accused slapped her buttocks while they were in or near the kitchen area: she is not sure if it was a front or back hand, she is not sure of either her or his reaction; she knows she said something but she is not sure what; she is not sure if his wife saw it, but she knows his wife did not say anything and that she was sitting on the couch in the living room watching TV.

[10] She also testified that the accused told her at the apartment that he liked her since he saw her at parenting classes and she believes he also told her at the coffee shop once. She also said that the accused tried to kiss her, she believes twice, once in or near the kitchen and she believes once before that time at the coffee shop while she and the accused were having a cigarette outside and the accused's wife was sitting inside the coffee shop.

[11] She did not plan to sleep over, but she missed her bus and tried to contact a friend and her ex-boyfriend to come pick her up, but to no avail. She was hoping to pay a visit to her ex-boyfriend, but he did not answer her call. She did not try to call home not to wake her little sister. She recalls wearing leggings and a black t-shirt and pink lingerie.

[12] She explained that the accused called one of his friends and she talked to her to confirm that there were no more buses and to sleep over at the accused's place. She does not recall the accused telling her to check the time not to miss her bus; she does not recall either her parents calling her and telling her to come back home as it was getting late.

[13] She does not recall the accused suggesting to her to sleep in the spare bedroom or on the couch. She does recall, however, the spare bedroom being full and boxes being placed on the bed and the couch being dirty. She does not know how, but she ended up sleeping in the couple's bed with them. She does not know the size of the bed, but she thought there was a bit of space between each of them in the bed. She remembers all three of them watching TV before falling asleep; she described the layout of the room and who was sleeping where. More specifically, she recalls the accused and his wife switching places at one point and returning to their original spots, that is the accused's wife on the edge of the bed closest to the TV, the accused in the middle and her on the opposite edge, closest to the door.

[14] She then described the incident as such: describing herself as a heavy sleeper, she explained that she was sleeping on her side; she believes her left side as she was facing away from the TV, so facing the door and the accused was right behind her, facing her, his stomach to her back. She woke up to the accused having intercourse with her. Her leggings and underwear were down above her knees and her knees were one on top of each other. Realizing what he was doing, she told him to stop, he asked her if he could ejaculate inside her, she responded no and he got out of bed and went to the washroom. She is not sure of the exact words used, whether it was to go finish up or something else, but she knows words to this effect were said and he did leave the bed to go to the bathroom. She described him leaving the bed from his position in the middle of the bed and through the feet of the bed. This exchange was done in a normal tone of voice.

[15] She indicated that the accused was sleeping in his boxer type underwear. She does not believe she could see his penis through his underwear when he walked to the washroom.

[16] She does not know if his wife was sleeping, but she is of the view that she could have heard the exchange if she was awake, as they were not whispering. While the accused was in the room, she lifted her leggings and underwear by lifting her buttocks up from the mattress. She recalls the accused not being very long in the washroom. After it was suggested to her, she recalled that upon his return to the bedroom, his wife told him she was cold and asked him to bring a blanket. She said she had a cigarette and stayed up the rest of the night, but does not believe she had any discussion with the accused's wife.

[17] She knows HIV is a disease you can catch, but she does not know anyone that has it and the accused never told her he had it, and no one else told her he had it either.

[18] The next morning, she was up early and they all left the apartment together and took the bus together to the west end area as they had a morning parenting class they attended and she wanted to make sure her daughter was ready for the class.

[19] She did not tell her parents right away. A few days later, she told her stepmother who suggested she tell her biological father. Her father is the one who called the police, and as a result these allegations were investigated.

Accused's Wife's Testimony

[20] The accused's wife also testified. She confirmed her address at that time and their participation in the parenting classes together. She and the accused have been married almost 2 years and they have 2 children together, aged 2 and 3 years old.

[21] In relation to the events before the court, she also described the following: the complainant was coming over; initially she testified that she slept over once because she had problems at home, but could not remember any other reason for her to come to her apartment. She later specified that she came over to help them clean the apartment because an inspector was coming over to see their place. The complainant missed her bus to return home that evening so they told her to sleep over. She saw the complainant calling her mother and her friends, but she does not remember if she spoke to anyone. She does not know how it ended up that the complainant slept in their bed, but she was uncomfortable with another woman sleeping beside her husband. She explained that the spare bedroom was messy and had no idea why she did not sleep on the couch in the living room. She described the layout of the room, its furniture and where each of them was positioned in the bed, including the switch between her and her husband. As a result, she ended up sleeping to the side closest to the TV. She indicated that she does not know the size of their bed and that she would be unable to differentiate bed sizes.

[22] She confirmed that her husband sleeps in his underwear. She also indicated that the complainant smoked a cigarette in bed. She testified that she was awake all the time that night. However, she does not recall asking for a blanket or her husband returning to bed with a blanket. She does not recall the complainant and her husband speaking to each other as everything was quiet.

[23] She also does not recall socializing with the complainant at the coffee shop because spending time at the coffee shop with her husband is very common.

[24] Even though she did not talk to the complainant after she slept over, she does recall after the time the complainant slept over and before her interview with the police, witnessing her husband calling the complainant and her hanging up the phone on him.

Accused's Statement to Police

[25] The statement of the accused was introduced as evidence in the Crown's case. In his statement to the investigating officer, the accused confirms his health status and the involvement of Children's Aid Society in his family's life as a result. He confirms his participation in parenting classes. He tells the officer that he only talks to two people outside class when having cigarettes, a couple but then adds that there is another girl, but he does not know her name. When the officer asks if the name of the complainant: Andrea, rings a bell, the accused says no. When the officer asked if he ever had somebody stay overnight at the apartment, he answers that he had a couple of times, but added "they stayed in the spare bedroom or even on the couch". When asked to provide the names of the females who stayed over, he offers one name and the letter "S" as the first letter of the name of the other woman as he did not recall her name. He indicated that she only stayed one night because she had missed her bus after helping them clean the apartment and getting ready to move. He says that he gave her their address over the phone, but thinks his wife also texted her the address. He explained that she took the bus to a location near the apartment in the east end and his wife and he met her to walk her to their apartment. He explained that their place was dirty and the landlord told them to clean it up as they were getting evicted.

[26] He said he had told her to keep an eye on the time in order not to miss her bus, but that she ended up missing her bus and therefore had to sleep over. He says they had the spare bed ready for her and after cleaning, he and his wife went to bed. He does not know where she slept, either on the couch or the spare bed, but when they woke up the next morning, she was awake and having a smoke. He recounts that she came to Kanata with him and his wife as they all had a parenting class or a visit with their children.

[27] He states that he does not remember the complainant sleeping in his bed, but when asked if it could have happened, he answers (and this is reproduced as page 12 of the transcript of his video statement):

Accused: I don't know, it could have, I don't know.

Detective: Okay. I guess it doesn't happen very often that you have someone else sleeping in the same bed as you and your wife?

Accused: Right.

Detective: Okay. So you...you...

Accused: I was dead tired so...

Detective: Yeah. Would you remember something like that, do you think?

Accused: I would.

Detective: Okay. So...did it happen or didn't it?

Accused: I don't remember.

Detective: Okay. Alright.

Accused: And plus I was in the hospital on my deathbed because of double PCP pneumonia, so...

[28] He described the spare bedroom having a single size bed but also being used as their storage with numerous boxes and bags, some piled up on the bed. But he got them off so the bed was free for her to use. He has no recollection as to where she slept, but believes she came into their bedroom in the morning to wake them up. When confronted with his wife's information to the effect that the complainant slept in their bed with them, he answers: "Actually, it kind of only happens in my dreams." And "I'm not that lucky."

[29] He says their bed is only a double and would not have had room for the three of them. Ultimately, he denies any sexual activity with the complainant or anyone that evening. He also indicated that he tells everyone he talks with that he has full blown AIDS, he tells people the first time he sees them that he has full AIDS and that this girl who came to the apartment that night knew about it and they did not do anything.

The Analysis

[30] As indicated in the introduction, credibility is an important issue and the parties agree that the analysis pursuant to R. v. W.(D.), 1 SCR 742 is required. As taught to us by our Supreme Court of Canada in W.(D.), but also in R. v. C.L.Y., 2008 SCC 2 and R. v. Van, 2009 SCC 22, this is not a credibility contest. As stated in R. v. Cyr, 2012 ONCA 919 and R. v F.E.E., 2011 ONCA 783, the analysis is required as it related to the accused statement and any exculpatory evidence emerging from the trial proceedings. In fact, as stated by Blair J.A. in R. v. B.D., 2011 ONCA 51, after an extensive review of the authorities, W. (D.), instructions apply no matter what the source of the exculpatory conflicting account. More specifically at para. 114 he states:

[...] Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defense or arising out of evidence favorable to the defense in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings.

[31] In assessing the evidence, through the instructions emerging from the W. (D.) test, it must be clear that the court cannot piecemeal the evidence or apply the test of the burden of proving the guilt beyond a reasonable doubt to individual items of evidence or to discrete facts in the case. As stated in R. v. Morin (1988), 44 CCC (3d) 193 (SCC), pp. 205-211 it would be wrong to do so "because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues." The Supreme Court of Canada also reminded us that "during process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt."

Where the Complainant Slept

[32] Ultimately, this matter resolves around whether the accused had intercourse with the complainant during the night she slept over at their apartment. There is no dispute they asked her to attend their apartment that is the accused and his wife, in order to help them clean it as some form of inspection was to take place. It is agreed that they gave her their address over the phone, but it is also evident through the Facebook communications filed as Exhibit 3 that the address was provided in writing. It is also agreed by all parties that she took the bus from the west end of the city to the east end where the couple resided and they met her to walk her to their apartment. Finally, all agreed that she missed her bus that night and as a result of being unable to obtain another means of transportation, she spent the night over at the couple's apartment.

[33] Where the evidence is conflicting on two central issues is: 1- specifically as to where the complainant slept in that apartment and: 2- of course as to the sexual intercourse.

[34] Both the complainant and the accused's wife testified that they are not sure how it was decided, but they ended up sleeping all three of them in the same bed, in the couple's bedroom. The accused's evidence on this issue, in the statement he provided to the officer is ranging from not knowing, to not remembering where she slept, to certainly allowing the possibility by saying that she could have slept in their bed and to end up almost expressing a desire as a dream or a luck that she did.

[35] In this context, he indicated that before going to bed, he cleaned up the spare bed to allow her to sleep on it. This is the same spare bedroom he described as being used as storage, full of boxes and bags and some even on the bed. In fact, the complainant also described the spare room and the bed as being covered with boxes.

[36] I should also note here, at the beginning of the interview, without being specifically asked the question, almost out of context, he offers the answer that people slept at their apartment in the past, but quickly adds that they slept either in the spare bedroom or on the couch. It certainly leaves one to conclude that he anticipated the subject matter of the issue.

[37] I also noted when the officer pointed out that it must not happen very often that he has someone else sleeping in the same bed as him and his wife (reproduced at p. 12 of the transcript of his video statement), his response was not only exaggerated in an effort to exonerate himself, but it did not make sense. But most importantly on this issue, in the end, he was clearly and directly contradicted by the evidence of his wife and the complainant.

Motive and Intent

[38] The Crown argues that the accused had a motive in the loose sense of the term having demonstrated an obvious attraction to the complainant. The Crown points to the Facebook exchange, Exhibit 3 where the accused asks the complainant if he can call her "Sweety," but not in front of Children's Aid Society and later on bluntly or in a more sexually charged comment, telling her that he wants her big time asking her if she wants him "yes or no." As evidenced by the Exhibits, the complainant did not respond to these messages. She testified that she did not respond because she thought these messages to be inappropriate.

[39] When considering this evidence, including his comment to the officer, reproduced at p. 14 of the transcript of his interview that "it kind of only happens in my dreams[,]" and "I'm not that lucky[,]" in reference to the complainant having slept in his bed, it certainly raises concerns as to his intentions towards the complainant. I also reject his evidence that he told her to watch the time not to miss her bus. This was way too convenient to keep her at his apartment.

Credibility of the Accused

[40] I can accept that he might not have recalled the complainant's full name even though he sees her regularly through the parenting classes. He certainly seems to know her well enough to know that she has a child and was pregnant at the time she came over to their apartment. He knew she lived in the west end of the city and the Facebook exchange clearly demonstrate a desire to know more about her. In passing, I also note her Facebook account showing her first and middle name possibly, but that her middle name started with an "S". In any event, it certainly seems as though he was trying to create space or to distance himself from the complainant during his interview with the police, even talking about another female friend from high school with the name of Andrea that he communicated with by text when asked if text communications would be found on his mobile phone.

[41] But once we are passed the issue of her name, he obviously knows exactly which night the officer is referring to. He has a clear memory of meeting the complainant at the bus stop, coming home to help them clean their apartment before the landlord came to inspect and where and how they went for class or visit with their children the next day. He remembers these details, but he is not sure the complainant slept in their bed that night with him and his wife, even though he stated that he cleaned the spare bed for her use, but there is a possibility she might have slept in their bed, but he would not know because he was dead tired and had been on his deathbed with double pneumonia.

[42] Given the totality of the evidence on this record, the context in which the evening evolved, that is to say the unexpected change of plan for the complainant when she missed her bus and the very reason for the complainant's presence at the apartment, that is the agreed general messiness of the apartment, I reject the accused wavering statement as to where the complainant slept. I reject his evidence that he cleaned the spare bed for her to use. There is no doubt raised by his statement or his version, and I accept that the complainant slept in the same bed as the accused and his wife.

Sexual Intercourse

[43] This leaves the second issue raised in this matter: did the accused have sexual intercourse with the complainant? As indicated, the accused denies this allegation.

[44] In this case, the totality of the evidence on this record brings me to also reject his denial. His evidence or the evidence present on this record does not raise a doubt either.

Corroboration and Consistency

[45] I accept the Crown's submissions that the complainant and the accused's wife did not collude and did not have any contact after that morning. Both testified identically as to important details in this matter:

(1) They do not know how it came about, but the complainant ended up sleeping in the bed with the accused and his wife;

(2) They described identically not only the configuration of the room and its furniture, but where the persons were in bed, including the switch between the accused and his wife at one point;

(3) Both have the accused sleeping in his underwear; and

(4) Both have the spare bedroom as unavailable to sleep in.

Assessment of the Complainant's Evidence

[46] The complainant's evidence was not always crystal clear or very specific, but when looking at the nature of the evidence that was not so clear or specific, I note that it related mainly to peripheral matters such as time. For example, she was not sure what time she arrived, but believed it was 6PM, but in any event there is no evidence to contradict her on this point. She believed she finished cleaning at around 10PM or 11PM because it was when the buses had stopped running.

[47] She also did not remember for example where and when he had tried to kiss her or whether it was at the coffee shop before the events. She remembered saying something to him when he slapped her buttocks in or near the kitchen that evening, but did not know what it was that she said.

[48] I noted that she often apologized to counsel when she did not know the answer to their question. But when she did know, she would not agree with an otherwise suggestion. For example, she did not agree with the suggestion that her father thought she would have left the accused's apartment later and only arrived home at around 1PM or 2PM because she knows she went to parenting class and class was early that day, she had to make sure her daughter was ready and her daughter was at her mother's. Another example is when counsel told her that the accused tells everyone about his HIV AIDS status – she clearly stated that he never told her that. I found her to be a conscientious witness.

[49] When looking at her evidence as it relates specifically to the circumstances of the sexual assault, I noted that it described the events in detail. Her description of the events in the end is clear and precise enough to understand exactly what and how it happened from her position in the bed, to where her clothing was and what she said and did. The only element in this part of her evidence that was not clear in her mind was what the accused said in relation to finishing up as she put it, in the washroom. The rest of her evidence was clear.

[50] I did not perceive her description of the assault as requiring some acrobatics to achieve. She is simply and clearly describing how the accused was positioned behind her and penetrating her vagina after placing her leggings and underwear down to her mid-thigh as she described just above her knees and while her knees were together, one over the other and as she is lying on her side. There is nothing implausible about her description. Of course, she could not specify for example the exact position of the accused behind her or whether his wife was sleeping at this precise time, but she was able to describe where her pants were, how she was positioned and what she said to him at that moment.

[51] In fact, when looking at her evidence, we cannot find contradictions per say. There are areas that were initially vague or unclear, but it cannot be said to be contradictions. When asked simple and short questions, in the order of the sequence of events, she was able to clearly convey her detailed evidence.

[52] She might not be able to express herself or convey her ideas as fluently as other witnesses not diagnosed with a general extremely low functioning, but I found her to be able to describe what she was able to observe in a suitable fashion, allowing us to understand what took place. Her ability to observe was tested and she demonstrated that ability for example by describing the apartment she only attended once located on the 4th floor within a 4-storey building.

[53] In the end, the accused's wife, except for the moment of the assault, corroborates her evidence in large part. I am mindful here of the accused's wife's evidence to the effect she did not sleep much all night and did not hear any conversation between the accused and the complainant. However, given her evidence that she did not recall asking the accused for a blanket while he was out of the bed, certainly leads me to conclude that she was either sleeping during this part of the night and only woke up after the accused moved out of the bed and fell asleep after receiving the blanket or did not react to what was happening. Given her comment that she was uncomfortable having another woman sleeping beside her husband, but still switching positions in the bed leads me to conclude that we simply cannot speculate as to what we expect her to have done should she have heard something going on. In the end, it certainly does not seem to be the case that she's the one wearing the pants in the family as stated by the accused in his statement. In any event, this element certainly does not affect the reliability or the credibility of the complainant.

[54] In the end, I accept her evidence as truthful, credible and reliable.

Conclusion

[55] Having rejected the evidence favorable to the accused, having accepted the evidence of the complainant and not being left with any doubt as to the state of where the truth lies, I find the accused guilty.

Released: May 10, 2016

Signed: Justice Julie I. Bourgeois