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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Ontario Court of Justice

DATE: 2021 03 25 COURT FILE No.: Central West Region 998 20 SD0891

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

C.C (No. 2)

Before: Justice J. De Filippis

Heard on: March 9 – 11, 2021 Reasons for Judgment released on: March 25, 2021

Counsel: Mr. I. Horic............................................................................................ counsel for the Crown Ms. E. Burton................................................................................ counsel for the defendant

De Filippis, J.:

INTRODUCTION

[1] The defendant is charged with sexual assault and failure to comply with probation by not keeping the peace and being of good behaviour. The verdict with respect to the latter charge is dependent on the result in the former. He admits he was on probation and was present at the complainant’s home on February 21, 2020 when, it is said, he committed the offences. He also concedes the admissibility of a statement given by him to the police on the day of his arrest.

[2] Before this trial commenced I ruled on a Defence motion to adduce evidence of other sexual activity involving the complainant; See R v C.C. [2021] O.J. No. 1195.

[3] The defendant (43 years old) and complainant (31 years old) have known each other for several years and had engaged in sexual activity before the events in question. At the time, the complainant was living in a rooming house. Shortly before, she had rented a bedroom in her apartment to a couple known to her and the defendant. The complainant slept in the living room because in August 2019, she suffered a drug overdose in the bedroom, now rented out. The overdose was with respect to medication prescribed for her, including antipsychotic drugs.

[4] On the day in question, in the afternoon, the complainant invited the defendant to her home. On arrival, around 4 PM, he learned she was upset because the man to whom she had rented her bedroom had urinated in the bed. The defendant sympathized with her and they sat down to watch television. Also, present in the living room was the complainant’s cousin, T.H. The complainant received a telephone call and walked into the bathroom with her cell phone. The defendant followed her there. Soon after the parties left that room, the defendant departed the premises. While outside, a friend of the complainant, W.R. arrived in his car and drove the defendant home. Later, W.R. drove back to the defendant’s home, picked him up, and took him to the complainant’s house so that the defendant could return one of her cell phones (that he had been using). By this time, the complainant’s mother had contacted the police to report her daughter had been sexually assaulted. The defendant was arrested on the front porch. An hour later, paramedics were called to the complainant’s home because she was having a seizure. She was taken to hospital.

[5] The complainant asserts that the defendant sexually assaulted her while they were in the washroom by trying to lower her pants and forcibly restraining her. The defendant claims he caressed and kissed her; he pleads that this was consensual or, that he had an honest but mistaken belief in consent.

[6] The complainant and defendant both testified. So, did W.R. and T.H. I also received screen shots of text messages. Like the foregoing facts, there is no controversy about these messages. It will be helpful to begin with a summary of them.

THE TEXT MESSAGES

[7] After the sexual assault is said to have occurred and the defendant had departed the premises, the parties exchanged the following text messages:

Complainant: I can’t do anything I have an infection. C: I get your (sic) sexually frustrated so am I but with an infection its worse on me. C: Don’t worry, I’ll leave you be. Defendant: I’m not worried. I’m used to it. C: Listen, I have an infection and I can’t control it. C: Don’t worry I thought you were here to be closer to me I’m not up for sex all the time D: Listen go help your brother….if you don’t mind I’m home trying to relax not get worked up C: Do you realize I’m in tears because of this and yeah, I’ll help my brother, he’s family C: My cuzzin [i.e. cousin, W.R.]…he’s here. D: Good. Go do your thing. C: Oh, I will C: Give him my phone so I can do what I have to do. D: Ok. I’ll bring it of course I need my chip out of it

[8] During the exchange of messages noted above, the defendant also conversed with T.H. These text messages included the following:

Defendant: I don’t want to hear anything it’s been over a month every time I try she pulls away. Just getting tired of it. Now I need to wait for infection to go away…. T.H.: You have a right to be mad but she don’t want to give you an infection. D Since we began only twice. Yes I’m mad T.H.: Sorry… D: Besides there’s other things she could have done but instead she just pulls and pushes away. When I’m with someone I find a way to make them happy…. D: Please get [the complainant] to stop texting me bullshit… T.H.: Okay D: Never mind she wants her phone back so now I’m getting dressed so I can bring it. Make sure you have the pin so I can take out m chip.

THE COMPLAINANT’S VERSION OF EVENTS

[9] The complainant testified that she had a good relationship with the defendant “until this event”. At one time, he lived with her and contributed to the household by purchasing groceries. The couple eventually became “friends with benefits”. The complainant explained that this meant they would have “consensual sex on occasion”. In this regard, she told the defendant she had been the victim of prior sexual assaults and this could impact how she reacted to his advances.

[10] On the day in question, several people were watching a movie. The defendant said he was not feeling well so the complainant “let him cuddle into my lap” on the couch. The complainant received a telephone call from W.R. The latter was agitated. The complainant went to the bathroom to speak with him privately. She was startled when, almost immediately, the defendant opened the bathroom door and entered. He said nothing in response to her statement that “I’m on the phone”. The complainant continued her conversation and the defendant remained.

[11] According to the complainant, the defendant grabbed her by the neck and pinned her down over the vanity and added that “he tries to strip me, starts to undo my pants and pulls my pants down below the hips”. She said “no, I do not want this, please stop”, but he persisted. The complainant stood up and, with the defendant’s arms over the top of her shoulders, she “ducked underneath” to leave the bathroom. Although the defendant clutched her tank top, she left the bathroom. The defendant left the bathroom a few minutes later. When he did, the complainant handed him the phone and said. “[W.R] wants to talk to you”. While they sat in the living room, she texted the defendant and told him to leave and he did so. As already noted, she later sent him a text message instructing him to return the phone.

[12] The parties were in the bathroom for “ten to fifteen minutes” and throughout this time, the complainant was on the phone with W.R. The latter was complaining about his girlfriend. She identified the text message noted above, “Do you realize I’m in tears because of this…” as an accusation of sexual assault. The complainant added that since this incident, she has been fearful when going to the washroom.

[13] After the text messages were exchanged and just before the defendant returned with the phone, the complainant called her mother and said she had been sexually assaulted by the defendant. Unbeknownst to the complainant, her mother reported this to the police.

[14] The chronology of events recounted by the complainant is not clear. She agreed with Defence counsel that while she stood before the mirror, the defendant hugged her from behind, moved his hands down her back to her waist, and pulled her pants down to her hips. She quickly added, “but I was pinned first”. While still on the phone, she said “don’t do this” or ‘stop”. She placed her free hand on that of the defendant and he stopped pulling down her pants and “then he pins me”. The complainant denied “grinding” her buttocks into the defendant’s groin but agreed that he kissed her neck. She also conceded that she helped him move her hair away from her neck before he did so, but added, “not in a sexual way….I told him to stop kissing my neck and he caressed my back with his fingers…I thought nothing of this, it’s when he pinned me that I freaked out”.

[15] According to the complainant, when the defendant pinned her, the phone fell out of her hand and she braced herself with both hands on the vanity. She then “ducked underneath his arms” and moved to leave the room. She succeeded, even though the defendant grabbed her tank top. This caused the fabric to stretch, but not rip.

[16] The complainant denied the suggestion that she had exaggerated the encounter in the washroom. When pressed on this point, she became agitated. On her return from lunch, she admitted telling other witnesses waiting to testify that Defence counsel was “badgering” her. She did so notwithstanding that in making an order excluding witnesses, I explained to her and other witnesses that they were not to talk about their experience in the courtroom.

[17] The complainant has three prior convictions: failure to comply with a release order, extortion, and forcible confinement.

THE DEFENDANT’S VERSION OF EVENTS

[18] The defendant said he renewed his friendship with the complainant in December 2019 and a sexual relationship developed. The complainant told him about her past sexual experiences to alert him to changes in mood in response to sexual advances. In addition to saying “no”, she might signal non-consent by tensing up or pulling away.

[19] The defendant confirmed that on the day in question, the complainant received a telephone call and abruptly left the couch to continue that conversation in the bathroom. Before this he had hugged her and kissed her on the shoulder. The defendant followed the complainant to the washroom and closed the door. He told her to “put down the phone, I’m tired of the drama”. He explained that the complainant is “always involving herself in other people’s drama, I was annoyed and wanted her to stay out of [W.R]’s business”.

[20] The complainant was standing in front of the mirror when the defendant put his arms around the complainant. She helped him move her hair away from her neck and he kissed her there and on the shoulders. He then brought his hands down her back to the inside of her pant waistband. The complainant continued to talk on the phone but at this point she placed one of her hands on his hand and the defendant withdrew his hands from her pants. She bent down and pushed her buttocks into his groin.

[21] The defendant denied he “pinned” the complainant or grabbed at her tank top. He said she did not say “no” or “stop” or “get off”. Instead, she gave him the phone and said, “I came here to pee, talk to [W.R.]. The defendant took the phone and went to the living room. He testified that he was not in the mood to talk to anyone because the complainant had been “hot and cold”. When the complainant came out of the washroom, the defendant said, “I’m tired of this shit” and went outside just as W.R. arrived in his car. The latter drove the defendant to his home. Soon after, the parties engaged in the text conversation reproduced above. Consequently, he went back to her apartment to return the phone. He was arrested there.

[22] The defendant has been convicted of 38 offences in the 29-year period from 1990 to 2019. The crimes include property offences, assaults, robberies, and breaches of court orders.

OTHER WITNESSES

[23] W.R. is a close friend of the complainant and has known her for many years. He confirmed that he telephoned her on the day in question to “check up on her”. He said they spoke for about 45 minutes and that during this conversation, “I heard struggling, she was breathing heavily, and she was crying…I heard the phone drop and I heard her yelling”. W.R. initially testified he could not recall the words spoken by the complainant but later said he heard her say, “get off, get off”. He added that the complainant told him she was being “assaulted”. He assured the complainant he would be there in 15 minutes. W.R conceded he did not call the police and noted, “I should have”. When he arrived at the complainant’s home, he saw the defendant outside. The latter asked him to drive him home. W.R. did so before returning the complainant’s home. W.R. also confirmed that, later that evening, at the request of the complainant, he went back to the defendant’s residence so the latter could return the phone.

[24] W.R. acknowledged that before he gave his statement to the police, the complainant told him her version of events in the bathroom.

[25] T.H. is the 28-year-old cousin of the complainant. She confirmed that while the defendant and complainant were on the couch, the latter received a telephone call from [W.R.] and went to the bathroom to talk. The defendant followed and closed the door. When the complainant left the bathroom, T.H. noted that her tank top was “ripped”. When pressed on this point she conceded that it might have been stretched rather than torn. She testified that the complainant came directly to her and said, “I was raped”. After the complainant sat on the couch, the defendant left the bathroom and sat on a chair. According to T.H., the complainant became upset that the defendant did not join her on the couch again.

[26] T.H. testified she does not “hang out with [the complainant] anymore because she’s drama”.

ANALYSIS

[27] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.D., [1991] 1 S.C.R. 377.

[28] The criminal records of the complainant and defendant are relevant to my assessment of their credibility, especially the defendant, as he has many more convictions. It means I approach their evidence with caution.

[29] It is not to be expected that a person who is being sexually assaulted will recall all details with clarity and order. The complainant claims he “pinned” her, but I cannot say when this might have happened. This much is clear: The complainant and defendant agree that soon after they entered the bathroom, the latter placed his arms on her shoulders, caressed her back and attempted lower her pants. The defendant stopped when signaled to do so by the complainant. He caressed her back and kissed her neck, after the complainant helped him move her hair aside.

[30] Courtrooms are not comfortable places for many people. I also understand that the assessment of demeanour should be approached with caution. This said, it must be pointed out that the complainant presented as highly excitable. That this is not limited to the courtroom is suggested by the testimony of T.H. who said she was tired of the complainant’s “drama”. In this regard, I note that the complainant rarely let Defence counsel finish a question before launching into a rapid answer. She became easily agitated during cross-examination and declared she was being badgered. The cross-examination was not oppressive; it was firm, fair and professional. Yet, I accept that the complainant saw it differently. I mention these points because they illustrate that the complainant’s belief in what transpired in the bathroom may not entirely reflect reality.

[31] I cannot safely rely upon the evidence of W.R. He appeared confused at times. He cannot be correct in estimating the length of the telephone call at 45 minutes. Both the defendant and complainant said the events in the bathroom lasted 10 to 15 minutes and the telephone call was received and ended immediately before and after those events. More important, W.R. presented as a witness who is easily influenced by others and the complainant told him her version of events before he spoke to the police. This must explain his improbable testimony; that while speaking to the complainant, he became aware she was being assaulted and he heard her pleading with her assailant. He added, for the first time at trial, that he also heard the phone drop during the struggle. Yet, having been witness to these alarming events and momentarily cut off from communication with his close friend, W.R. did not call the police. Indeed, on arrival at the complainant’s residence, he did not run inside to check on her well-being; instead, he agreed to the defendant’s request for a drive home. It is reasonable to infer that the testimony given by W.R. reflects his belief in a narrative told to him by the complainant, after the fact.

[32] The limited evidence given by T.H. was not undermined. I have confidence in her testimony with respect to these points; she saw the complainant emerge from the bathroom with her tank top stretched or, perhaps, torn, the complainant told her she had been “raped”, and, following that statement, the complainant became upset with the defendant because he would not sit beside her on the couch, after which she told him to leave.

[33] The text messages show that the defendant was sexually frustrated by the apparent lack of interest by the complainant. This, as the Crown argued, can explain why he committed these offences. The messages also suggest the defendant had always stopped sexual activity whenever the complainant “pulled away”. It does not necessarily follow that he respected her wishes on this occasion, but as the Defence pointed out, soon after, the parties conversed and the complainant did not accuse the defendant of impropriety; rather, she offered an explanation, for not engaging in sexual activity. In this regard, I do not accept her testimony that her statement “I’m in tears…”, reflects the fact she was sexually assaulted. There are other reasonable interpretations for that state­ment, given all the circumstances. I appreciate that the fact the complainant did not confront the defendant about the allegation in her text conversation does not mean it did not happen but, in this case, her silence is a relevant factor.

[34] The defendant’s trial testimony was inconsistent, in some respects, with his prior statement to the police. He testified that she ground her buttocks into his groin [i.e. in a sexual manner] but told the police she pushed back on him [i.e. to get him out of the way]. He testified that the complainant did not say “no” during the encounter. He told the police she did say no and that he stopped touching her. These inconsistencies are not a basis to reject the defendant’s testimony – and apart from the matter of the tank top, his evidence was not otherwise undermined. I accept that the defendant grabbed the complainant’s tank top as she left the bathroom; I do not believe his denial in doing so. However, neither the fact nor the denial is sufficient to have me find that he just sexually assaulted the complainant.

[35] At the end of the day, there is too much ambiguity in this case to come to a firm conclusion about what happened in the brief period the parties were in the bathroom. The complainant’s statement to T.H and her mother that she was raped shows that, at some point, at least, she did not consent to sexual advances by the defendant. However, in all the circumstances, it is a reasonable possibility that the defendant did not realize this and had an honest but mistaken belief in consent. As noted, I cannot reject his evidence about this.

[36] The Crown has not proven, beyond a reasonable doubt, that the defendant sexually assaulted the complainant. As such, the charge of failure to comply with probation must also fail.

Released: March 25, 2021 Signed: Justice J. De Filippis