Court Information
Ontario Court of Justice
Date: November 8, 2018
Court File No.: Brampton 17-8147
Parties
Between:
Her Majesty the Queen
— and —
O.K.S.
Before the Court
Justice: M.M. Rahman
Heard: October 2, 3, and 4, 2018
Reasons for Judgment Released: November 8, 2018
Counsel
For the Crown: Kerry Watson
For the Accused: Leanna Seetahal
Notice
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.
Judgment
RAHMAN J.:
1. Overview
[1] The accused, O.K.S., is charged with committing sexual assault, assault and mischief on July 8, 2017. The Crown alleges that he struck, choked, and forced his wife, S.K., to have sexual intercourse with him after the two of them came home from a night out.
[2] S.K. said that O.K.S. became upset and aggressive with her after she made a disparaging comment about him. S.K. said that her husband asked to see her phone and that when she refused to unlock it for him, he pulled her hair struck her repeatedly on her face and choked her. S.K. finally agreed to open her phone to stop the assault. Shortly after giving him the phone, S.K. discovered her phone on the ground with a broken screen. S.K. got upset with O.K.S. for breaking her phone. She returned to her bedroom to sleep. After leaving S.K. alone, O.K.S. returned to the bedroom, grabbed S.K. by her hair, and had non-consensual intercourse with her.
[3] O.K.S. denied ever hitting or in any way assaulting S.K. He said that, after he and S.K. arrived home, they had consensual intercourse. O.K.S. said that S.K. began performing fellatio on him, and that he stopped her after she tried to digitally penetrate him. O.K.S. said he asked to see S.K.'s iPad and that, after discovering that she had been messaging another man, he became upset and decided to have a talk with S.K. He said that, the result of their talk was that he would move out of their home but that they would continue to date.
[4] The main issue in this case is whether the Crown has proven the allegations against O.K.S beyond a reasonable doubt. Their versions of what took place that night are very different. As I will explain below, this case requires an application of the well-known R. v. W.(D.) test. I will first summarize the two competing versions of events and the parties' positions, and then explain my findings.
2. Summary of the Evidence
2.1. The Relationship and Marriage
[5] O.K.S. and S.K. began dating in April 2016. They began living together in May when O.K.S. moved in with her. The two got married in September 2016. S.K. was O.K.S.'s sponsor for immigration purposes. As he explained in his evidence, though he originally had work permits when he came to Canada, by the time he had started dating S.K. he no longer had a valid work permit.
[6] S.K. and O.K.S. described their marriage very differently. Because the relationship dynamics figured prominently at trial, I will review them below.
2.1.1. S.K.'s Description of the Relationship
[7] S.K. painted a very negative picture of the relationship. She said that she and O.K.S. are from two different worlds and that O.K.S's idea of a relationship was very different than hers. S.K. said that O.K.S. seemed to think it was acceptable for him to have affairs. She admitted that she also had an extra-marital relationship.
[8] By the time of the alleged assault, S.K. described herself as "pretty much checked out." S.K. said the two had discussions about the relationship not working out. She explained that she remained in the relationship, despite the problems, because she felt guilty that he needed her as his sponsor to stay in the country. She also felt that he needed to stay in the relationship for immigration reasons. S.K. said she had asked him to leave as early as May 2017, but that O.K.S. was concerned about his immigration status so she did not press the matter. She said even though she was checked out of the relationship by May 2017, she did not take any steps to file for divorce or to otherwise end the relationship. S.K. said she felt sorry for her husband.
[9] S.K. also admitted that her distrust of her husband had led her to take steps to track his location and to check his phone to see who he had been communicating with. S.K. put a tracking device in O.K.S.'s car in early 2017 and activated a feature on his phone that allowed her to know his location. S.K. also said that she had gone into his phone and read messages he exchanged with other women and that she sent messages to some of those women from his phone.
2.1.2. O.K.S's Description of the Relationship
[10] O.K.S. described the relationship as a happy one "most times." When asked to elaborate, he said that S.K. is different when she drinks. O.K.S. could recall only having two disputes before the night of the alleged assault. One dispute had to do with S.K. being too controlling. S.K. would be watching who he was texting and was reading his text messages. S.K. would become upset if O.K.S. texted his child's mother. He said that the other dispute involved S.K. and her friend trying to set him up by having him charged with assaulting her friend. In cross-examination, O.K.S. disagreed with the suggestion that their marriage was not working out in July 2017. In re-examination, he said S.K. had never told him, before July 8, that she thought their relationship was not going well.
[11] O.K.S. said that he and S.K. would go out every weekend. He said that they would go bowling, or to pool halls or parks or go bike riding. He said that their interactions were good when they went out and that they would talk about future plans together. O.K.S. said that, although he had female friends, he was not romantically involved with anyone outside the marriage.
[12] O.K.S. had once confronted S.K. about Facebook messages that she exchanged with her aunt. He had seen those messages on S.K.'s iPad while S.K. was in Cuba. The messages were about a man in Cuba that S.K.'s aunt wanted to introduce her to. When he confronted her about the messages, S.K. told O.K.S. that nothing had happened between her and the man. O.K.S. accepted her explanation.
2.2. The Evening of July 7 at the Bar
[13] There is no dispute that S.K. and O.K.S. went out to a bar for drinks on late at night on Friday, July 7, 2017. The two of them have slightly different versions of what transpired at the bar.
2.2.1. S.K.'s Version
[14] S.K. testified that she and O.K.S. went to a bar in Rexdale on Friday, July 7. She said that they were drinking, hanging out, and playing pool. S.K. said she was drinking a lot that evening. She estimated that she had five to eight drinks, some of which were doubles. S.K. said that O.K.S was mostly playing pool with other people while she was getting drinks and speaking with the bartender. She said they were at the bar from about midnight until they left at about 3:00 a.m. S.K. said that she and O.K.S. were having a good time, but in the back of her mind she was not happy. In cross-examination, S.K. acknowledged that she looked happy and was smiling in a picture that showed her playing pool at the bar that night.
[15] S.K. testified that at about 1:30 a.m., O.K.S left the bar to go and sleep in the car. S.K. stayed in the bar and continued drinking until after 2:00 a.m. when she left and went to the car to meet O.K.S. S.K. said that she was "pretty inebriated" when she left the bar. Despite how much she had to drink, she drove the two of them home. Initially, S.K. said that her ability to drive was fine, but she later acknowledged that she was drunk. She testified that they arrived home at about 3:00 a.m.
2.2.2. O.K.S.'s Version
[16] O.K.S. testified that S.K. had suggested that they go to the bar that night. He believed that they arrived at the bar at about 11:30 p.m. and spent three to four hours there. O.K.S said that they were drinking and talking together and that S.K. made friends with the bartender and was talking with her. He said that he also played pool with S.K. The two of them were happy and laughing and were enjoying the game. He said that he was giving her pointers and teaching her how to be a better pool player.
[17] O.K.S testified that when the bar had last call, he asked her to leave. S.K. said that she wanted one or two more drinks and wanted to speak with the bartender. O.K.S. said that he went down to wait for her in the car. He did not know how long he was in the car before S.K. arrived and woke him up by knocking on the window. O.K.S testified that, though he only had two beers that night, he did not drive. He said that because he is a professional truck driver, he did not drive if he had anything to drink because he could lose his license.
2.3. The Early Morning Hours of July 8 and the Alleged Assaults
[18] After arriving home, S.K. and O.K.S. both testified that they engaged in consensual sexual activity. However, their versions of what occurred are very different.
2.3.1. S.K.'s Version
[19] S.K. testified that she had another drink when she got home. She said that she and O.K.S. began "fooling around" on the couch. S.K. testified that she began performing oral sex on O.K.S. but stopped because she lost interest and wanted to go to sleep. She said that she left the living room and went into the bedroom to go to sleep. O.K.S. did not ejaculate during oral sex.
[20] O.K.S. followed her into the bedroom. He suggested that they use some of her sex toys. In response, S.K. remarked, "They probably feel better than you." This comment made O.K.S. angry. S.K. said that he started to yell and ask her to unlock her phone. S.K. refused. O.K.S. pulled S.K.'s hair quite hard and hit her. He began striking S.K. on the lower part of her face as she protected the top area of her face with her hands. S.K. did not know if O.K.S was hitting her with an open or closed hand. She started screaming "Stop!" and said she was shocked her neighbours did not hear her. At one point, O.K.S. choked S.K. with his left hand, while continuing to pull her hair. Eventually, S.K. unlocked her phone and gave it to O.K.S. O.K.S. took her phone, left the bedroom, and went to their outdoor terrace.
[21] After O.K.S had been gone for some time, S.K. became curious what he was doing with her phone. She left the bedroom and discovered her phone on the floor of the balcony. The screen was broken. S.K. became angry at O.K.S. for breaking her phone. She began yelling at him. O.K.S. responded, "Who the fuck have you been talking to? Did you fuck this guy?" S.K. continued yelling at O.K.S. that he had smashed her work phone. S.K. went inside, placed her phone on the counter, and went back to the bedroom.
[22] S.K. testified that O.K.S. entered the bedroom before she had a chance to fall asleep. He turned on the light and grabbed her by the hair and said, "I'm going to finish and I'm going to do this right." S.K. said that he pulled her hair at the top of her head to move her onto her hands and knees. S.K. said she felt scared and did not want to be hit anymore. O.K.S. forced his penis into her vagina. S.K. said that O.K.S used his forearm to press down on her lower back. She eventually went limp and he stopped pressing with his forearm and put his hand on her shoulder. He continued to pull her hair. S.K. could not say how long the forced intercourse took place. She said it seemed like forever. S.K. could not recall how many times she told him to stop. O.K.S. eventually finished after ejaculating inside her.
[23] S.K. left the bedroom and went into the living room. She testified that she wanted to call the police or do something. She could not call anyone because her phone was smashed. She was concerned that if she drove to a police station she would look foolish showing up drunk and driving. S.K. ended up falling asleep on the couch.
2.3.2. O.K.S's Version
[24] O.K.S. testified that when they arrived home, he and S.K. had sexual intercourse on the couch. He said that after S.K. climaxed, he believed that she wanted him to stop, so he stopped. O.K.S. said he was going to walk to the washroom and that S.K. stopped him. He testified that she began performing oral sex on him. O.K.S. said that one of S.K.'s hands was on his buttocks and that, after a short time, he felt her try to insert a finger in his anus. O.K.S testified that he immediately jumped away and asked her why she would do something like that. He said that S.K. had done that before and that he had told her he did not like it. S.K. laughed at him when he said this. O.K.S. got dressed and went outside to smoke.
[25] When O.K.S. returned inside he went into their bedroom. He asked S.K. again why she tried to digitally penetrate him and where she had gotten the idea from. O.K.S. said that he recalled seeing a conversation S.K. had with her aunt about meeting a man in Cuba. O.K.S. had seen this conversation when S.K. had been in Cuba and he had been using her tablet. O.K.S. asked her if that man had influenced her, or if she had confused him with that other man. S.K. smirked.
[26] O.K.S. wanted to see if there had been any more conversation between S.K. and her aunt. He picked up her tablet and tried to unlock it. He failed. He then told her to open the tablet or he would break it. S.K. unlocked the tablet and covered her head with the bedsheets. O.K.S. saw more messages about the man from Cuba. He took photos of these messages with her aunt with his phone. He also noticed that she had been communicating with the man over Facebook Messenger. O.K.S. saw that S.K. had sent the man a video in which she was partially nude and messages that said she missed him and could not wait to go back and see him. O.K.S. became angry when he saw this and he punched the wall. O.K.S left the room and went outside to smoke.
[27] When he returned, he went back in the bedroom. S.K. told him she was scared and that she thought he was going to kill her. O.K.S. said that he sat with her on the bed and told her he did not want to stay. He said he would leave and she could live her life as she pleased. He said he did not want to stay with her while she was speaking to other men. S.K. told him that she knew it looked bad and that she was sorry. O.K.S. said that they agreed that he would move out but that they would still date each other to see if it could work out. O.K.S. said that he left the bedroom and went to the couch to try to sleep.
2.4. Events after the Alleged Assault, on July 8 and 9
[28] Both S.K. and O.K.S testified that they spent the day together on July 8. Again, there are differences in their versions of events.
2.4.1. S.K.'s Version
[29] S.K. testified that she woke up at about 9:00 or 10:00 a.m. and went into the bedroom. O.K.S. was waking up at the same time. O.K.S. demanded that S.K. open her iPad so he could read the Facebook messages he had seen on her phone again. S.K. said she would do what he wanted but that he had to leave. She then said "You raped me last night." O.K.S. looked at her as if he did not know what she was talking about. S.K. again told him that he needed to leave.
[30] O.K.S. refused to leave at that point. Instead, he offered to take S.K. to a flea market to get her phone fixed. The two ended up going to the flea market. S.K. described the drive to the flea market as "somber" with no conversation. While at the flea market, S.K. and O.K.S. discussed going to the police station where O.K.S. had to get a police check done for immigration purposes. S.K. said that she reassured him that, no matter what, she would still assist him with sponsorship. S.K. said she simply wanted to be civil and part ways.
[31] S.K. said that they went to the police station together and that she was the one who spoke with the officer about what needed to be done. She said that she did not mention the alleged assault to the officer because she just wanted to forget about it and did not want to get O.K.S. in trouble. She said that she felt it was over and they could move on with their lives.
[32] S.K. left Saturday evening to visit her mother in Peterborough. Before leaving she asked O.K.S. again that he leave and that he not be there when she returned the next day. When she returned on Sunday night, she went to her sister and brother-in-law's home. She understood that her aunt had spoken to them about her Facebook message to her aunt disclosing that O.K.S. had hit her. They wanted her to tell them what was going on. S.K. disclosed to her sister what had happened. Her sister advised her to report the incident to the police. S.K. reported the assault to the police the next day. After going to the police station and giving a statement, she went to Trillium Hospital for a medical exam. S.K. also had several photographs taken of her face and neck that show redness and bruising.
[33] After O.K.S was released from custody, S.K. contacted him because she said she was concerned about him. She testified that she did not want these charges to be prosecuted and did not want him to go to jail. To that end, she wrote a letter to the Crown in September 2017. In the letter, she said that she was inebriated and that "they may not have all the facts in regards to the situation leading up to the incident." S.K. testified that she believed that she had not mentioned to police that she had consensual oral sex with O.K.S. prior to the alleged assault. S.K. maintained that, despite what she said in the letter, nothing in her statement or her testimony is false.
[34] S.K. took steps to withdraw her sponsorship of O.K.S. in July 2017. She also spoke with a lawyer shortly after the incident and was told that she had to be separated for a year before she could be divorced. S.K. said that she had not yet filed the necessary paperwork to effect the divorce.
2.4.2. O.K.S.'s Version
[35] O.K.S. testified that he did not sleep that morning. He said that he got up at around 9:00 a.m. After having breakfast, he and S.K. went to the flea market to get S.K. a new screen protector for her phone. O.K.S. said that they talked a lot during their drive to and from the flea market, and while at the market. He said that they discussed their future and that they needed to get their act together about what they were going to do. O.K.S. testified that S.K. never mentioned anything to him about him raping her. She only told him that he had scared her.
[36] After the flea market, they returned home and watched a movie. O.K.S. said that he noticed that Citizenship and Immigration Canada had sent him an email asking that he obtain a police record check. He said that S.K. became excited and they went to the nearby police division. O.K.S said that S.K. spoke with an officer who told her they would need to have the checks done in Brampton. They left the police station and decided to go to a nail salon where S.K. got a manicure and O.K.S. got a pedicure. While waiting for their nail salon appointment, they used the time to get sushi. O.K.S. described their dinner as a happy one.
[37] O.K.S. and S.K. returned home. S.K. left for her mother's place. O.K.S. said he would move out by the time she got back from visiting her mother, which was normally Sunday evening. O.K.S. said that they talked on the phone while she drove to Peterborough. S.K. told him after she had arrived and O.K.S. told her that he had packed up most of his things.
[38] O.K.S. did not speak to S.K. again until Monday morning. He testified that he had been calling her on Monday and did not get hold of her. He said he became worried because he did not know if she got back from Peterborough. He also wanted to tell S.K. that he had gotten his police record check done. When he did finally reach her, he said that she was speaking very quietly and told him she was ok and with her sister. O.K.S. said that S.K.'s brother-in-law, Imran, took the phone from S.K. O.K.S. said that Imran began "throwing accusations" at him, and asked why he was bothering S.K.
[39] O.K.S. testified that he was arrested on Monday night or early Tuesday morning. He remained in custody for a week before getting out on bail. O.K.S. said that S.K. began calling him after he was released. Initially, O.K.S. testified that S.K. began calling him on the Thursday following his release, but in cross-examination, he said it was Friday night through to Saturday morning that she called. O.K.S.'s surety suggested that he take a screenshot of his call log. O.K.S. took a screenshot on the Saturday morning following the first call he received from S.K. The screenshot showed 29 calls next to S.K.'s name.
3. Parties' Positions
3.1. Defence Position
[40] Ms Seetahal urged the court to accept her client's evidence or at least be left with a reasonable doubt because of it. She argued that her client's evidence is actually supported in large part by S.K.'s own evidence. Ms Seetahal observed that O.K.S.'s description of their relationship is consistent with S.K.'s description of what actually happened in the relationship. She argued that O.K.S.'s characterization of the relationship as a happy one is consistent with what S.K. said they did together as a couple. For example, she said that the photograph O.K.S. took of S.K. playing pool is something a loving husband would do with his spouse as a show of affection.
[41] Ms Seetahal also argued that the fact that they spent the day together on Saturday and the activities they did are more consistent with O.K.S.'s version of what occurred than S.K.'s. O.K.S. said that they decided to live apart but stay in a relationship. S.K. said that he had violently raped her. Ms Seetahal said given what they both said they did that Saturday, O.K.S.'s version is the more believable one.
[42] In the same vein, Ms Seetahal urged the court to reject S.K.'s evidence because she spent the day with O.K.S. Ms Seetahal said that getting a screen repaired is a simple task and would not have required S.K. to go to the flea market with O.K.S. Further, even though S.K. had wanted to call the police about the alleged assault the night before, she said nothing when she accompanied O.K.S. to the police station on Saturday. Again, the police checks were for O.K.S. and her presence was not required at the police station. Ms Seetahal suggested the things S.K. did with O.K.S. on Saturday were clearly inconsistent with S.K.'s own description of how she was feeling because of being sexually assaulted.
[43] Ms Seetahal also noted that, despite the photographs showing bruising and redness on S.K.'s face, nobody asked her about these marks when she went out on Saturday. The police did not mention them, nor did anyone at the nail salon, nor did her mother. This was so even though S.K. said they were noticeable and that she was only wearing minimal makeup.
3.2. Crown's Position
[44] Ms Watson argued that O.K.S.'s evidence is incredible and that the court should reject it. She said that O.K.S.'s evidence was inconsistent, illogical, and defied common sense. Ms Watson argued that O.K.S's description of the relationship as fine was betrayed by his actions. The fact that O.K.S. checked S.K.'s Facebook messages while in Cuba, and demanded to see her iPad on July 8 are inconsistent with his depiction of the marriage. Ms Watson also urged the court to reject O.K.S's evidence that he was just "upset" after seeing the Facebook messages and video S.K. had sent to another man. She said that he was trying to downplay how angry he was and the fact that he punched a wall and took photos of the messages shows that he was actually far more than just upset.
[45] Ms Watson urged the court to accept S.K.'s evidence beyond a reasonable doubt. She argued that S.K.'s evidence was compelling, consistent, and candid. Ms Watson said that S.K.'s description of her marriage as one of mutual jealousy and mistrust was not only candid but more consistent with the way that both S.K. and O.K.S. acted. Ms Watson also said that the photographs of S.K.'s injuries confirm her account.
4. Analysis
4.1. The Burden of Proof and Reasonable Doubt
[46] Trials like this one are not credibility contests. A court cannot find an accused guilty simply because it prefers the complainant's evidence to the accused's. The well-known test in W.D. requires me to find O.K.S. not guilty if I accept, or am left with a reasonable doubt, by his evidence or any evidence inconsistent with his guilt. Practically speaking, this means that I need not believe O.K.S. to find him not guilty.
[47] Further, even if I reject such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I accept, that the accused is guilty. In considering whether the Crown's evidence has proven the charges beyond a reasonable doubt, I must be satisfied that the Crown's evidence is both credible and reliable enough to justify a guilty verdict. The burden is always on the Crown to satisfy me beyond a reasonable doubt that O.K.S. is guilty. There is no burden on O.K.S. to prove anything. In short, I cannot find O.K.S. guilty unless I am sure he is guilty.
[48] I will next outline my application of the W.D. test and explain my findings.
4.2. Findings
[49] I agree with the Crown that O.K.S.'s evidence is not believable. I say that for the following reasons:
(1) O.K.S's description of the relationship as a happy one stands in stark contrast to what he acknowledged actually took place in the marriage. He agreed that S.K. had been controlling, by tracking his movements and breaking into his phone. She was jealous of him texting with his female friends and did not even want him communicating with his son's mother. She and her friend had tried to set him up by having him charged with assaulting her friend. None of the foregoing suggests a happy marriage. I find that O.K.S. was not candid in his description of their troubled marriage. In my view, O.K.S. was trying to downplay the impact of the problems in their marriage in an effort to make the assault, and what precipitated it, seem less likely.
(2) O.K.S. had no explanation for why he took photographs of the messages on S.K.'s iPad. He said that he took the photos right after he read the Facebook messages with the man from Cuba. Yet when asked why he took them, he simply said he did not know. In my view, O.K.S. taking the photos was more consistent with S.K.'s description of their marriage as one of mutual jealousy. Again, O.K.S. was trying to downplay his jealousy in the relationship and his own mistrust of S.K. The only real reason to take such photos would be to use at some point in the future in the relationship.
(3) The fact that O.K.S. was looking at S.K.'s Facebook message while she was in Cuba would not make sense unless he was already suspicious of her. O.K.S. said that he came across the messages while playing games on her iPad and that he had only used her iPad on a couple of occasions. He was looking at those messages because he was suspicious of her. His actions in this regard again are inconsistent with his own description of their relationship.
(4) His description of the events at their home on the night in question make no sense. It is difficult to understand why his mind immediately turned to the man in Cuba when S.K. tried to digitally penetrate him. O.K.S. said that he had told S.K. on previous occasions that he did not like that activity. His explanation that he thought the other man influenced her, or that she mistook him for the other man makes no sense.
(5) It is completely incredible that S.K. did not tell him before the night in question that she thought the relationship was not going well. On his own evidence, S.K. was controlling and jealous. It makes no sense that she never told him she thought their relationship was not going well.
[50] I find that O.K.S. was purposely not candid with the court because he was trying to present an image of his relationship that would make it less likely that he would have had a reason to commit the assault in the manner that S.K. described. He tried to portray the marriage as a mostly happy one in which jealousy was one-sided. Consequently, I reject O.K.S.'s evidence and find that it does not leave me with any reasonable doubt.
[51] Having rejected O.K.S.'s evidence, I must still consider whether the Crown's evidence satisfies me beyond a reasonable doubt that he is guilty. In this case, it does.
[52] S.K. was quite candid about her troubled marriage to O.K.S. I find that her description of their marriage is consistent with the conflict that she said led to the assault on the night in question. This was a relationship with mutual jealousy and mistrust. S.K. was very open about how she had been controlling in the relationship by installing a tracking device in O.K.S.'s car and by tracking him using his phone. Similarly, her description of O.K.S.'s jealousy is consistent with him wanting to examine her devices and see whom she had been communicating with.
[53] I am not concerned by the photograph taken at the bar that shows S.K. smiling while playing pool. It does not undermine S.K.'s credibility about what occurred at the bar, or the state of their relationship. S.K. said she was "checked out" of the relationship. But she admitted having mixed feelings, since she still cared for O.K.S. and wanted to ensure he could stay in the country. She herself also acknowledged that they engaged in consensual sexual activity when they returned home from the bar. S.K. did not paint a picture of their marriage as one of total doom and gloom. Rather, she described her ambivalence about it. The photograph of her playing pool, and the fact that she and O.K.S. went out to the bar together, does not cause me any concerns about her credibility.
[54] I have also considered S.K.'s alcohol consumption that night and whether it may have affected her perception or memory of the events. By her own admission, S.K. had a lot to drink. She had five to eight drinks at the bar, some of which were doubles. She had another drink once at home. She described herself as inebriated. I have considered whether her alcohol consumption affected both her perception that night, and her ability to recall events. In my view, despite her state, I am satisfied that I can safely rely on her recollection of the events. I say that because what she related was a violent and shocking event for her. O.K.S. grabbed her by the hair. He choked her. He struck her in the face repeatedly. He then forcefully had non-consensual intercourse with her. S.K. was drunk but she did not black out. I am not satisfied that her drinking affected her ability to recall events.
[55] More importantly, I find that the photographs taken of her neck and face two days after the assault confirm her description of how the assault happened. She recalled being struck in the bottom of her face because she protected the area around her eyes with her hands. The photographs show not only redness on her face, but also a sizable bruise in her chin area. This accords with her recollection of where O.K.S.'s blows landed. The photographs are powerful confirmatory evidence that S.K. was assaulted as she described.
[56] I am not concerned about S.K.'s delay in reporting the assault. Nor am I concerned with S.K. having spent Saturday with O.K.S. There is ample authority that trial judges should be careful about relying on stereotypes about how victims of sexual assaults behave. And in this case, S.K. provided a reason why she delayed reporting the incident and why she spent the day with O.K.S after he had assaulted her. S.K. said that she wanted to forget about it and put it behind her. She said that it was over and she thought they could move on with their lives. S.K. only went to the police at the urging of her sister. Indeed, when asked how she felt about testifying at trial, she said that she did not want to be in court and did not want him to be in court either because she still cares for him.
[57] I find beyond a reasonable doubt that O.K.S. assaulted and sexually assaulted S.K. on July 8, 2017.
[58] Regarding the mischief count, I am not satisfied beyond a reasonable doubt that O.K.S. intentionally destroyed S.K.'s phone. S.K. did not see what O.K.S. did with her phone after he took it onto the balcony. She did not hear it break. She simply saw it on the ground when she went outside and it had been smashed. Although I find it is quite likely that O.K.S. smashed the phone in anger, it is also possible that the phone dropped or that he carelessly allowed it to fall out of his hands without any intention of breaking it.
[59] I find O.K.S. guilty of counts 1 and 5 assault and sexual assault and not guilty of counts 2 and 4, mischief to property and choking to render her incapable of resistance.
Released: November 8, 2018
Justice M.M. Rahman
Footnotes
[1] I delivered reasons orally on November 7, 2018, omitting certain sections, including headings and footnotes, for the sake of time. I explained that the full reasons would be released in writing, subject to editing. This written version takes precedence over the oral reasons in the event of any discrepancy between the two.
[2] The accused was also charged with overcoming resistance to an offence by choking. The Crown acknowledged there was no evidence to support that charge and invited the court to dismiss it. The Crown also acknowledged that another charge of assault (count 3) was duplicitous, and asked that it be marked stayed.
[3] R. v. W.(D.), [1991] 1 SCR 742
[4] In cross-examination, Crown counsel suggested to O.K.S. that his arrest for the charges against S.K. was not the first time he had been arrested. Crown counsel asked this question in response to O.K.S.'s comment that he was shocked when police arrested him because he had never been arrested before. O.K.S. said that he had not been arrested when he had been charged with assaulting S.K.'s friend. Crown counsel suggested in her questioning that he had in fact been arrested. I should note that I did not consider anything unusual about O.K.S.'s statement that he had not been arrested. Indeed, it would be perfectly proper to serve someone an appearance notice or promise to appear and not formally arrest for an assault charge.
[5] The Crown filed the medical report completed at the hospital as an exhibit. The exhibit was not entered for the truth of anything in it, but simply to show that S.K. had been to the hospital on July 11.
[6] See for example, R. v. D.D., 2000 SCC 43 at para. 65; R. v. Nyznik, 2017 ONSC 4392 at paras. 192-193.
[7] When I announced my verdicts in court, I referred to count numbers incorrectly. I did correctly specify which offences I delivered the verdicts on. This judgment reflects the proper counts as numbered in the information.