WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: 2017-05-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

G.M.

Before: Justice M. Greene

Reasons for Judgment

Released: May 30, 2017

Counsel:

• K. Mullaly for the Crown
• L. O'Connor and L. Pomerance for G.M.

Decision

Introduction

[1] Mr. G.M. is charged with numerous offences arising out of two alleged altercations on December 25, 2015 with his girlfriend, T.D. It is alleged that on December 25, 2015, prior to going to sleep, he performed oral sex on T.D. without her consent. It is also alleged that hours later, after T.D. woke up in the morning that Mr. G.M. forced T.D. to have intercourse with him, physically assaulted her by grabbing her arms and forcibly confined her by not allowing her to leave his apartment. Mr. G.M. was also charged with possessing property obtained by crime but at the close of the Crown's case the Crown invited me to find Mr. G.M. not guilty of that offence.

[2] At trial both T.D. and Mr. G.M. testified. Both parties gave completely contradictory versions of events. In addition to the complainant and the defendant, the court also heard from Ms. Waldman, a nurse, and C.F.M., Mr. G.M.'s mother. Photographs of Mr. G.M.'s injuries and a report detailing T.D.'s injuries were also filed with the court.

T.D.'s Evidence

[3] T.D. and Mr. G.M. met in 2003. They were friends for years before they started to date. According to T.D., the relationship was on and off for years until it finally ended on the night that Mr. G.M. attacked her.

[4] At trial, T.D. testified that in the months leading up to December 25, 2015, she and Mr. G.M. still maintained this on again off again dating relationship. During this time, she saw Mr. G.M. a couple of times a week. Later in her evidence, T.D. admitted that at one point in time she lost contact with Mr. G.M. and had to telephone his mother in order to find a way to contact Mr. G.M.

[5] T.D. testified that on December 24, 2015, Mr. G.M.'s mother telephoned her and encouraged her to see Mr. G.M. as it was Christmas. As a result of this conversation, T.D. met Mr. G.M. at a Starbucks in Thornhill. T.D. initially testified that they met at approximately 4:00 p.m. but after having her memory refreshed from her statement to the police, T.D. conceded that it was likely she met up with Mr. G.M. at 3:00 p.m. After a brief visit at Starbucks, Mr. G.M. and T.D. relocated to a nearby mall. The plan, according to T.D., was that they would each purchase the other a nice Christmas present.

[6] They arrived at the mall at approximately 4:00 p.m. According to T.D., this is when the problems started.

[7] According to T.D., once at the mall, she went into a store to purchase some Lego mini figures for Mr. G.M. when she discovered that there was a problem with her debit card. T.D. then went to a bank machine but the problem did not resolve. As a result, both T.D. and Mr. G.M. went to her vehicle where she called telephone banking. She and Mr. G.M. agreed to resolve T.D.'s bank card problems by transferring funds through telephone banking from T.D.'s account to Mr. G.M.'s account and then Mr. G.M. would give T.D. the cash. They then returned to the mall so T.D. could purchase the presents for Mr. G.M.

[8] Once back in the mall, Mr. G.M. started to become angry at T.D. for taking money from him. He denied that they had made a plan to purchase each other gifts and he started to call her "crazy". He also accused her of keeping him waiting in the mall for hours. This confused T.D. because in her mind she had not been at the mall that long. Mr. G.M. continued to yell at T.D. until she finally decided to leave the mall. T.D. walked to her vehicle, had a cigarette and waited for Mr. G.M. to join her.

[9] According to T.D. she waited in her vehicle until the mall closed but Mr. G.M. never arrived. She became upset and tried to telephone him. When she finally reached him, he started to yell at her again and advised that he took a taxi home. T.D. finally left the mall and started to drive. She then became lost. At this point T.D. tried to telephone Mr. G.M. again. She was upset and crying so Mr. G.M. suggested she go home and then take a cab to his residence.

[10] Upon arriving at Mr. G.M.'s apartment, T.D. and Mr. G.M. visited for a short time. During this time, T.D. had a marijuana cigarette and some whisky. They then decided to go to a midnight mass service. Part way through the service they decided to leave and purchase some food. They ended up at a lounge called Insomnia. After eating and having some more to drink, they returned to Mr. G.M.'s apartment.

[11] This is when they started to argue again. Mr. G.M. started to call T.D. crazy again and also called her bipolar. This was troubling to her because she was diagnosed with bipolar disorder but had never told Mr. G.M. about her diagnosis. At the time, T.D. was on medication which completely controlled her mental disorder.

[12] During this argument, Mr. G.M. also stated that he was not gay. Mr. G.M.'s sexual orientation was a long standing argument in their relationship.

[13] According to T.D., during this argument, Mr. G.M. grabbed her by the arms, pushed her down and then pulled her pants half way down. He then, over her protestations, began to perform oral sex on her. T.D. tried to push him off but he was too strong. The next thing T.D. recalled was waking up on the couch, naked. T.D. opined that she did not recollect what took place next because she was traumatized by the event.

[14] T.D. testified that upon waking up the next morning, she walked into Mr. G.M.'s room to confront him about what took place the night before and how it was that her clothes had been removed. She walked into Mr. G.M.'s bedroom, turned on the light and asked Mr. G.M. what happened. Mr. G.M. responded by saying "leave me alone I am sleeping". She then asked him why she was naked and he continued to tell her to leave him alone.

[15] T.D. remained and Mr. G.M. finally stood up. The next thing T.D. knew, she was on the bed and Mr. G.M. was on top of her. Mr. G.M. then forced intercourse on T.D. while she was crying and saying no. Once it ended, T.D. attempted to collect her belongings. Mr. G.M. chased after her grabbing her by the arms. T.D. struggled to get free and in the process scratched Mr. G.M. T.D. then started to scream rape in the hopes that the neighbours would hear. At this point, Mr. G.M. picked up the whisky bottle from the table and threw it at her. It missed and broke on the floor.

[16] T.D. began to search for her belongings, but Mr. G.M. continued to attack her. She went into his bedroom, slipping on the whisky that was on the floor as she went. Once in the bedroom, she called 911. T.D. told the police that Mr. G.M. was a drug dealer and that he was removing all the marijuana from the residence.

[17] The police arrived quickly, but by the time they arrived, Mr. G.M. had already left the unit. T.D. was just outside of the residence when the police arrived. They returned into the unit so she could provide a statement.

[18] T.D. was taken to the hospital where she was examined by a nurse specializing in sexual violence. As a result of this attack, T.D. suffered bruises to her arms where Mr. G.M. had grabbed her and her leg.

Mr. G.M.'s Evidence

[19] Mr. G.M. testified that on December 24, 2015, he met T.D. at the Starbucks near her end of the city. After a short time, T.D. and Mr. G.M. went to a Chinese Mall so that Mr. G.M. could purchase T.D. a bag. They arrived at the mall sometime between 5:00 and 6:00 p.m. and remained at the mall for approximately three hours. During their first half hour at the mall, T.D. selected a number of items that she wanted Mr. G.M. to purchase for her as Christmas presents. Mr. G.M. spent approximately $350.00. After this point in time, T.D.'s behaviour became very odd.

[20] T.D. went into a different shop. It was a very small store and T.D. spent hours in this store picking up items and taking them to the front area to purchase. T.D. did not want Mr. G.M. in the store while she shopped, so at first he waited outside for her. After 2 ½ hours, however, Mr. G.M. lost his patience and went inside the store to retrieve T.D. and asked if she wanted him to pay for the items. At this point in time T.D. became hysterical. She started to yell at Mr. G.M. for offering her money. She then left the store without paying for any of the items. Mr. G.M. testified that he was embarrassed by what took place so he decided to purchase some of the items that T.D. had placed on the counter.

[21] Upon leaving the mall, Mr. G.M. looked for T.D., but she was gone. Mr. G.M. then took a taxi home. According to Mr. G.M., T.D. started to telephone him shortly thereafter but he chose not to answer the telephone. Mr. G.M. testified that his mother called him shortly thereafter and convinced him to speak to T.D.

[22] Mr. G.M. spoke to T.D. and she agreed to take a cab to his residence. Upon arriving at his residence, they smoked some marijuana and T.D. had some whisky. They then decided to attend church. While at church, T.D.'s behaviour became erratic again. She started to cry and was talking about seeing spirits. She also stated that she was touched by an angel. T.D. was loud and was disturbing the other people in the church so Mr. G.M. convinced T.D. to leave and go for some food.

[23] Mr. G.M. and T.D. arrived at Insomnia at around 12:30 a.m. According to Mr. G.M., while at Insomnia, T.D. ordered martinis and a shot of alcohol. T.D.'s behaviour continued to be erratic at the restaurant. She was loud, was in the washroom for a very long time and started another argument with Mr. G.M.

[24] T.D. and Mr. G.M. eventually left the restaurant and returned to Mr. G.M.'s residence. Once at Mr. G.M.'s residence, T.D. continued to yell at Mr. G.M. and behave erratically. Eventually she fell asleep on the couch and Mr. G.M. put a blanket over her.

[25] In the middle of the night T.D. started to scream about letting her dogs out. Mr. G.M. reminded her that they were at his residence where no dogs were present.

[26] In the morning, Mr. G.M. awoke to T.D. throwing CDs at him. She kept asking him whether or not they had sex the night before. Mr. G.M. stepped out of bed and yelled back at T.D. In response, T.D. started to yell that she was raped. She said she was calling the police and going to tell them that he is a drug dealer. She then picked up the telephone. Mr. G.M., who was in fact a drug dealer, became nervous and started to remove his marijuana from his residence. As he tried to leave, T.D. became violent and started to scratch at his back and stop him from leaving. As a result of this incident Mr. G.M. received numerous scratches to his back and face. Photographs of his injuries were filed with the court.

Additional Evidence

[27] Ms. Waldman, a nurse from the sexual assault team at Woman's College Hospital, testified. She saw T.D. right after the alleged sexual assault. Ms. Waldman attempted to conduct an internal exam but due to T.D.'s difficulty in tolerating the exam, she was unable to properly see all the internal structures. There was no suggestion that this lack of tolerance to the internal exam was evidence that a sexual assault in fact took place.

[28] Ms. Waldman did document some injuries to T.D. They included:

a) Redness on her right wrist;

b) 0.5 cm brown bruise on the same wrist;

c) 1 cm round brown bruise on her left leg on the knee area;

d) 2 cm bruise on the left shin;

e) 1 cm area of redness on the left wrist;

f) Petechiae on the elbow and arm area;

g) 1.5 cm brown bruise on the right leg;

h) 1 cm brown bruise in a triangular shape on the same leg; and

i) 1 cm bruise on inner right knee.

[29] Ms. Waldman could not identify when any of the injuries occurred in time. She could not confirm that they were as a result of an attack from earlier that day.

[30] C.F.M. also testified at trial. She is Mr. G.M.'s mother. C.F.M. does not live in Toronto and was not in town on the night of the alleged sexual assault. She did, however, have contact with T.D. by telephone in the months leading up to this event and on December 24, 2015.

[31] C.F.M. testified that she has known T.D. for approximately eight years. She met T.D. through her son. According to C.F.M., there was a time when T.D. and Mr. G.M. broke up and T.D. was not around. Then in September of 2015, T.D. telephoned C.F.M. looking for her son. According to C.F.M., T.D. advised that she had been looking for him and could not locate him. She had even gone to a drug store that T.D. knew Mr. G.M. frequented in the hopes of seeing him. The following Thanksgiving C.F.M. came to Toronto to visit her son and was able to see T.D. as well.

[32] On December 23, 2015 T.D. telephoned C.F.M. She appeared "stressed out" and "desperate". She said that she needed money to purchase a gift for Mr. G.M. C.F.M. agreed to give T.D. $500.00. T.D. next telephoned C.F.M. on Christmas Eve. T.D. again seemed very upset. She was crying and advised that she was driving around and trying to find Mr. G.M. but he was not answering his telephone. C.F.M. had never heard T.D. this upset before and was concerned about her driving. After hanging up the telephone, C.F.M. telephoned her son and encouraged him to speak to T.D. Mr. G.M. appeared reluctant to do so but ultimately agreed to call her.

Relevant Legal Principles

[33] Mr. G.M. is presumed to be innocent of these offences, unless and until the Crown has proven each essential element of the offences of sexual assault, forcible confinement and assault beyond a reasonable doubt.

[34] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[35] It is not enough for me to believe that Mr. G.M. is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. To find Mr. G.M. guilty, however, I must be sure that he committed the offences.

[36] In assessing the credibility of the witnesses in this case, I remind myself that if I believe Mr. G.M. I must find him not guilty. Even if I do not believe Mr. G.M., if I am nonetheless left in a reasonable doubt by his evidence, I must find him not guilty. Even if I completely reject Mr. G.M.'s evidence, I must still find him not guilty if on all the other evidence, I am not satisfied beyond a reasonable doubt of his guilt.

[37] In cases where there are two versions of events, proof beyond a reasonable doubt is not satisfied merely because the trial judge prefers one version of events over another. Moreover, it is open to the court to believe both T.D. and Mr. G.M. If I do believe them both or if I am not sure whom to believe, I will have a reasonable doubt and must find Mr. G.M. not guilty.

[38] In assessing Mr. G.M.'s evidence, I am not to ask myself whether or not his evidence could reasonably be true. There is no burden on Mr. G.M. The burden lies with the Crown to prove the case beyond a reasonable doubt.

[39] Often times in assessing credibility the court is asked to consider inconsistencies within a witness' evidence. Not all inconsistencies will necessarily lead to rejecting a witness' evidence. The court must go on to consider the nature of the inconsistencies and what effect, if any, the inconsistencies have on a witness' credibility or reliability.

[40] In the case at bar the fact that T.D. suffers from a mental illness was canvassed and explored at length by defence counsel. The law is clear. The mere fact that a witness suffers from a mental illness is not a basis to reject that person's evidence. It is only if there is evidence that the mental illness has affected the witness' ability to perceive or recall details that the mental illness may impact the reliability of the witness' evidence. In the vast majority of cases, the mere fact that a victim suffers from a mental illness will have no effect at all on his/her evidence.

Analysis

[41] The sole issues at trial relate to the credibility and reliability of the two key witnesses. T.D. testified that Mr. G.M. forcefully had oral sex with her over her clear objections and continued to do so even after she fell asleep or passed out. She further testified that when she tried to leave the following morning, he forcefully compelled her to stay and also forced intercourse on her. He also assaulted her by grabbing her and throwing a whisky bottle at her. If I accept T.D.'s evidence and am not left in a reasonable doubt by Mr. G.M.'s evidence, I must find Mr. G.M. guilty of all the remaining charges.

[42] Mr. G.M. denied engaging in any sexual activity with T.D. on December 24 and December 25. He further testified that while he did physically touch T.D. on December 25, he only did so in self defence. If I accept Mr. G.M.'s evidence, I must find him not guilty.

[43] In the case at bar, defence counsel urged the court to reject T.D.'s evidence. In support of his argument, counsel pointed to the following frailties in her evidence:

a) T.D.'s consumption of alcohol and marijuana while suffering from a major mental illness impacted her ability to reliably recall the events from December 24 and 25;

b) T.D. testified that on December 25 Mr. G.M. forcibly had vaginal intercourse with her. T.D. made no mention of this in her statement to the police. When confronted about this, T.D. denied that she failed to tell police about this event. T.D. pointed to a place in her statement where she stated "that is when the next thing happen" to be her reference for the forced intercourse;

c) T.D. told the police that she was not suffering from any mental health issues. This was clearly not true. T.D. testified that in her mind she was being truthful as her mental health issues were under control at the time.

d) T.D. testified that Mr. G.M. threw a whisky bottle at her and that the bottle broke. She further testified that she slipped on the liquid from the whisky bottle. The photographs of the scene, as taken by the police upon their arrival establish that the whisky bottle was intact and there was no liquid on the floor; and,

e) T.D.'s version of events at the mall are inconsistent. T.D. was inconsistent between her evidence at trial and her statement to the police about how much time she spent at the mall. On the version of events she told police (when her memory was freshest and she was trying to be accurate) she arrived at the mall by 4:00 p.m. and remained there until 9:00 p.m. Counsel argued that this timing is consistent with Mr. G.M.'s version of events and inconsistent with T.D.'s evidence at trial.

[44] Crown counsel argued that while the above inconsistencies and potential frailties were accurately described by defence counsel, I should nonetheless accept T.D.'s evidence. Firstly, she argued that T.D.'s evidence was corroborated in part by Ms. Waldman, in that she did suffer injuries. Secondly, Crown counsel argued that the inconsistencies are consistent with a woman who suffered a very traumatic event and should not cause the court to reject her evidence. Finally, the Crown argued that T.D. had no motive to lie.

[45] In assessing T.D.'s evidence, I am mindful that if events occurred as described, her lack of memory for some details, her passing out on the couch during the attack and the inconsistencies in her evidence between what she told the police and what she testified to at trial are all understandable and would not give me cause to reject her evidence.

[46] In relation to the defence argument that T.D.'s alcohol and drug consumption that night combined with her medication for her mental illness raises doubts about her reliability and that it explains the odd behaviour, I reject this argument. Firstly, the alleged odd behaviour as described by Mr. G.M. and C.F.M. but denied by T.D. started before T.D. consumed any alcohol or marijuana. Secondly, T.D. denied acting in an odd manner and instead testified that it was Mr. G.M. who was acting out on December 24 and 25. Thirdly, there are other reasonable explanations for the few inconsistencies in T.D.'s evidence including the passage of time.

[47] There are three areas that in my view are of some relevance. Firstly, there is no doubt in my mind that T.D. is mistaken about the whisky bottle. T.D.'s recollection of Mr. G.M. picking up the bottle of whisky from the coffee table and throwing the bottle at her causing it to break on the floor is not accurate. The police photographs clearly establish that the whisky bottle was not broken. Crown counsel argued that perhaps Mr. G.M. did throw the bottle but that T.D. was just mistaken on whether or not it broke. This may be the case, but what is troubling is that T.D. had such a clear memory of slipping on the whisky that spilt on the floor as a result of the bottle breaking when this clearly did not happen. This suggests that some of T.D.'s memories are not accurate.

[48] The evidence of C.F.M. is also somewhat problematic for the prosecution. I appreciate that C.F.M. was not in Toronto on the night in question and could not possibly know what took place at the residence. Her evidence, however, about T.D.'s state of mind strongly corroborates Mr. G.M.'s evidence and does contradict T.D.'s evidence on her own emotional stability on December 24.

[49] I also cannot ignore the fact that T.D. testified about a very violent sexual assault that she failed to mention in any meaningful way to the police less than an hour after the alleged sexual assault took place. T.D. testified that her utterance "then the next thing happened" was her way of expressing to the police that Mr. G.M. forced sexual intercourse on her. This may be true, but it is difficult to understand why T.D. would not have been more explicit about this event especially when she was able to describe the forced oral sex from the night before and the other acts of violence from that morning.

[50] These facts, while they do give me some concern about T.D.'s version of events, they do not cause me to completely reject T.D.'s evidence outright. I am mindful that traumatic events can affect people in different ways and the court should not rush to judgment.

[51] The analysis, however, does not end here. I must still consider Mr. G.M.'s evidence. If I accept his evidence or am left in reasonable doubt by his evidence, I must find Mr. G.M. not guilty.

[52] Crown counsel argued that I should reject Mr. G.M.'s evidence. She argued that Mr. G.M.'s evidence did not make sense. The crux of the Crown's argument focused on Mr. G.M.'s evidence that he did not want to have sexual relations with T.D. when they returned to his residence on December 25, 2015. Crown counsel argued that Mr. G.M.'s evidence that he did not want to have sex with T.D. on December 25 is so inconsistent with the general nature of the relationship that it is just not believable. Crown counsel argued that the relationship, as described by Mr. G.M., was one where he bought T.D. nice things, took her out a lot and gave her money. In return she gave him sex. In light of this dynamic, the Crown argued it is unreasonable to accept that Mr. G.M. chose to not sexually engage with T.D. on December 25 when they returned home from Insomnia. Respectfully, I disagree. Firstly, Mr. G.M. denied that the relationship was as the Crown described. Secondly, T.D. never described the relationship in this way. She did refer to Mr. G.M. as generous but at no point did she suggest that sex was expected. In my view, this is not a reason to reject Mr. G.M.'s evidence.

[53] Mr. G.M., in my view, gave his evidence in a very forthright and honest manner. There was nothing implausible or impossible about his evidence. Moreover, it was corroborated in part by his mother, who described T.D. as being emotionally volatile on December 24, similar to how Mr. G.M. described her state of mind. In addition, the injuries on Mr. G.M.'s back are also consistent with his version of events.

[54] When I consider all the evidence, while I do not disbelieve T.D., her evidence was not so compelling that it causes me to reject Mr. G.M.'s otherwise reasonable version of events. At the end of the day, I am not sure whom to believe. On both versions of events, the other party was acting out of character and erratic on December 24 and December 25. Neither has an obvious motive to lie or to have behaved the way that was described at trial. After reviewing all the evidence and the submissions of counsel, I do not know which version of events is accurate. I am therefore left in a reasonable doubt about what took place before T.D. fell asleep on December 25, 2015 and I am left in a reasonable doubt about what took place when Mr. G.M. and T.D. woke up on December 25. The Crown has not proven its case beyond a reasonable doubt and I therefore find Mr. G.M. not guilty on all counts.

Released: May 30, 2017

Justice Mara Greene