WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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

Ontario Court of Justice

Date: 2020-12-21

Court File No.: Niagara Region 998 SD 17 3930

Between:

Her Majesty the Queen

— AND —

D. (B.)

Before: Justice J. De Filippis

Heard on: November 2 - 3, 2020

Reasons for Judgment released on: December 21, 2020

Counsel:

• Ms. S. Ford — counsel for the Crown
• Ms. K. Vanderlee — for the defendant

Judgment

De Filippis J.:

Introduction

[1] The defendant is charged with sexually assaulting his wife and failure to comply with probation by not keeping the peace and being of good behaviour. Proof of the latter charge depends on whether the former is proven. It is conceded that the defendant was bound by the probation order at the time.

[2] At the outset of the trial the Crown brought a motion to tender evidence of prior discreditable conduct by the defendant with respect to the complainant. It is agreed that I would hear the evidence in question and defer my ruling until the end of the trial.

[3] I dismiss the charges. These are my reasons.

The Evidence

[4] The complainant testified that at the time of these events the parties were "married but separated and living in the same home". They married about two years earlier, but she is not sure of the exact date. She described the relationship as "bad…he would hit me…. there was sexual abuse and verbal abuse". When asked to elaborate, she replied, "I don't know what to say, it was bad enough that my kids were taken out of the home…he called me names…I can't recall all…'whore' is one…I have blocked much of it out, it's too emotional". At this, the complainant began to cry and asked for a break. The court stood down for one hour.

[5] On the day in question, the complainant had been at a bar with friends and came home around 11 PM. She found the defendant asleep in her bed. She joined him and fell asleep. She further testified that she awoke to find the defendant "standing above me, screaming that I was a whore and that I deserved to be treated like this". The complainant explained that while saying these things, the defendant was masturbating and he ejaculated on her face. She added that her left eye was "full of semen". The complainant wiped her eye and face with a pillow case, ran in fear to the washroom, returned to the bedroom and called 911. She said the defendant left the room and began yelling at her when she called the police.

[6] In cross-examination, the complainant was told she married the defendant in the month of September and one year earlier than she said in examination in chief. She accepted this as correct. She also confirmed that her children – D. (10) and S. (9) – were removed from her care by Family and Children's Services (FACS) the day after the wedding. The complainant explained that this happened because the father of the children and "De." had reported that the defendant was abusive. The children lived with De. The complainant denied the children were removed from her care because she has an alcohol problem, but acknowledged that FACS had intervened before, because of her drinking.

[7] The complainant admitted she had infrequent supervised visits with her children and De. (at the offices FACS). She denied this was due to her consumption of alcohol. She said it was because she was busy at work. When pressed on this point, the complainant conceded that she was not working while De. had custody of her children. After two years, De. passed away and the children were sent elsewhere. The complainant said they were not returned to her "because I had stopped seeing them before that".

[8] The complainant rejected the suggestion that her children had reported safety concerns to FACS because she was "always drunk". However, she did not dispute she was often intoxicated. She admitted that in this state she often argued with the defendant, but insisted she was not verbally abusive towards him. The defendant, however, was previously convicted of assaulting her. She added that this was the only time, apart from the present case, that she called the police. Her normal practice when he became abusive was to go to safe places, homes of friends, he did not know about.

[9] The complainant said it was possible that the parties separated a few days before this incident, on Thanksgiving Day. When it was suggested she had "passed out drunk" on that day, the complainant replied that she could not recall doing so.

[10] Defence counsel played the 911 call placed by the complainant at about 1 AM. She reported that, "I was lying in bed sleeping, and my husband comes on me and basically calls me a whore and everything else. I have come all over my body and it is not welcome". The defendant can be heard speaking in the background.

[11] The cross-examination about the alleged sexual assault included this exchange:

Q: This trial is first time you said you awoke to loud screaming [by the defendant that she was a whore]

A: Yes

Q: There is no question there is ejaculate on you, the question is how it got there, you agree there was no physical assault

A: [Agreed]

Q: Was [the defendant] standing with each foot on either side of your body?

A: Yes, I just remember looking up and he was there and I assume his feet were on either side…..but I can't be certain...but he was right there [pointing up with her hand]….one eye was blinded by semen….I wiped the eye in the bedroom and then in washroom

[12] Defence counsel asserted that this is what had happened:

• The complainant "took out [the defendant's] penis and started masturbating him";
• The defendant "became aroused and straddled [the complainant] with his knees on either side of her";
• As the defendant was about to ejaculate, the complainant said, "don't come in my mouth" so he ejaculated on the side of her face and the complainant was "okay with that";
• The complainant saw that the defendant was "still hard" and said, "fuck me, fuck me"
• The defendant refused to have sexual intercourse, and this upset the complainant.

[13] The complainant rejected these assertions.

[14] The complainant told the 911 dispatcher that the defendant was in another room and she was sitting in the bedroom. Four days later, when interviewed by the police, she reported that the defendant was yelling at her while she spoke to the dispatcher. When it was suggested that the defendant's voice in the background was not loud, the complainant replied that the bedroom wall was thick. The complainant maintained that she was in fear of the defendant at all times. He waited in the home without further incident until the police arrived.

[15] Defence counsel pressed the point that the complainant had embellished her feelings of fear:

Q: It's not until four days later that you tell the police you were trapped in the house and couldn't get out and we can agree you didn't say this to the dispatcher at the time or the officers who arrive at the time – you made that up to make the story better

A: There's no way to make the story better, it's what happened and four days later maybe that's what I thought

[16] Defence counsel produced what she described as a "police occurrence report" with respect to an incident six weeks before the events in question. Crown counsel asked for and reviewed this document in court. Defence counsel told the complainant that the document is about her report to police that the defendant had "chased her, punched her, beaten her and she has whiplash". The report also documents that the police arrived on scene and found the complainant intoxicated, unsteady on her feet, with a smile on her face, and no obvious injuries. The complainant testified she does not recall the incident.

[17] The complainant testified that she was not intoxicated on the evening in question. However, PC Jackson, whose evidence is not controversial, is of the opinion that she was "mildly intoxicated" as he could smell alcohol on her breath and saw her bump into a table. He also photographed the complainant's face and a green pillow case she reportedly used to wipe her eye. He observed an "off-white substance" on her face and the pillow case.

Analysis

[18] There is no dispute that to ejaculate on another person's face without consent amounts to a sexual assault. The Crown must prove this beyond a reasonable doubt, as set out in the much cited case of R. v. W.(D.), [1991] 1 S.C.R. 742.

[19] Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all the other evidence presented; see R. v. Gostik. The Crown submits that the other evidence includes prior discreditable conduct by the defendant; namely the "prior animus by the defendant toward the complainant and the power dynamic in this abusive domestic relationship". Moreover, the defendant had previously called the complainant a whore. This, it is said, supports the complainant's version of events.

[20] In R. v. F. (D.S.), 118 OAC 272, the Court of Appeal for Ontario, adopted the following statement by Charron J.A. in R. v. B. (L.), 35 O.R. (3d) 35 at p. 43, 116 C.C.C. (3d) 481 at p. 490:

Because of the inherently prejudicial nature of evidence of discreditable conduct it is subject to a general exclusionary rule unless the "scales tip in favour of probative value" (R. v. Morin, 44 C.C.C. (3d) 193). The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
2. If so, is the proposed evidence relevant and material?
3. If relevant and material, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect?

[21] If the complainant's evidence is accepted, the first and third criteria are satisfied. The Defence argues that "there is not much history here, an assault conviction and name calling" and asks, "where is the power imbalance". It is also submitted that this evidence should be excluded under both the second and fourth prongs of the test. I agree with these submissions. Apart from the assault conviction, the discreditable conduct is based entirely on the testimony of the complainant. As I will explain, I cannot safely rely upon her evidence.

[22] The Defence argues that the complainant was successfully impeached and, as such, the Crown has not met its burden of proof. In this regard, counsel points out that the complainant did not readily concede her alcohol problem and difficulties with her children. The Crown responds that the complainant did not shy away from uncomfortable questions and this enhances her credibility. Counsel acknowledges her testimony gives rise to certain inconsistencies but maintains that on one point the complainant never wavered; the defendant stood over her, called her a whore while masturbating, and ejaculated on her face. I agree with the Crown that on this one point the complainant was clear and consistent. However, there is ample reason to find that she is an unreliable witness.

[23] I note what was said, by the Court of Appeal for Ontario, in R. v. Sanichar, 2012 ONCA 117:

[34] Even if the complainant appeared to be "sincere," "truthful," and "honest" – as the trial judge noted several times throughout his reasons – and even if the complainant believed what she was saying, it does not follow necessarily that what she was saying was reliable. Credibility alone, in this sense, is not enough. This is particularly important where the accused is facing charges based entirely on allegations of historical physical and sexual abuse, and where also – as here – there were serious reliability issues.

[24] Moreover, this is not a case, as in R. v. Roy, 2017 ONCA 30, in which it can be said that the difficulties with the complainant's evidence are peripheral to her core assertions. These are the difficulties:

(1) She could not recall when she married the defendant;

(2) She could not recall when she separated from him;

(3) She blamed the defendant for the fact that her children were taken away from her, but chose to stay with him and conceded that FACS had previously intervened because of her alcohol issues;

(4) She could only have supervised access to her children after they were taken away;

(5) She pointed to her work commitments as the reason she saw her children "infrequently" after they were taken away, but later admitted she did not work at the relevant time (and she has since had no contact with her children);

(6) She has no memory of an incident, six weeks before the events in question, in which, it is said, she called police to report the defendant had beaten her;

(7) Her demeanor and actions during the 911 call are inconsistent with parts of her trial testimony;

(8) Her assertion that she was not intoxicated on the evening in question is contradicted by the non-controversial testimony of PC Jackson.

[25] These facts show the complainant has a serious alcohol problem that has affected her memory and judgment. In this regard, I must elaborate on several points: Items 3 to 5 suggest the defendant is a bad mother. It is not my conclusion that, if true, this means she is not credible or reliable. Rather, these facts illustrate the extent of her alcohol abuse. This also explains the relevance of the occurrence report (item 6). It was not filed in evidence, but it was reviewed by Crown counsel before the Defence put it to the complainant. Thus, I am satisfied it is a legitimate document, even if I cannot assume that its details are true and accurate. That is, I can conclude this much; the complainant does not remember calling the police in a moment of crisis. I agree with the Crown that the complainant did not shy away from uncomfortable questions. For example, she readily changed her testimony and agreed her infrequent contact with her children was not due to work. While this suggests a concern for truthfulness, it also highlights her unreliability.

[26] The impact of the complainant's alcohol abuse means I must treat her testimony with caution. This is especially so because she was intoxicated on the night in question and has provided evidence that is partially inconsistent with prior statements to the 911 dispatcher and the police. The defendant ejaculated on the face of the complainant. I cannot say, on the record before me, how that occurred because the only witness to the event is the complainant and I do not have confidence in her. As such, I must find the defendant not guilty.

Released: December 21, 2020

Signed: Justice J. De Filippis