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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 FILE No.: 0611-998-19-1313 DATE: January 6, 2021
ONTARIO COURT OF JUSTICE Central West Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
brennen harman
Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on March 9 and 13, November 25, and December 3, 2020 Reasons released on January 6, 2021
Ms. Christina Lynch.............................................................................................. for the Crown Ms. Leah Shafran............................................................................................ for the Defendant
SCHWARZL, J.:
REASONS FOR JUDGMENT
1.0: INTRODUCTION
[1] The Defendant, Mr. Brennen Harman, stands trial on two charges: unlawfully in a dwelling house and sexual assault, contrary to sections 349(1) and 271, respectively, of the Criminal Code of Canada.
[2] The theory of the Crown is that in the summer of 2018 when the complainant, C.T., was a tenant in the basement apartment of a house owned and occupied by the Defendant, he snuck into her locked apartment while she slept and then masturbated while touching her body.
[3] The Defendant denies these claims. He submits that he had no access to C.T.’s apartment, denies doing anything sexual with her, and argues that C.T. was motivated to fabricate these criminal complaints upon being evicted from her apartment in 2019.
[4] Evidence was taken from four people concerning these allegations. C.T. and her ex-boyfriend Christopher McLaughlin were called by the prosecution while the Defendant and his brother, Bradley Mayer-Harman, testified for the defence. Exhibits were filed by both sides.
[5] Both parties agreed that my verdicts are contingent on weighing and assessing the credibility and reliability of the witnesses after taking all the evidence into account.
2.0: APPLICABLE LEGAL PRINCIPLES
[6] The court may believe none, some, or all of a witness's evidence: R. v. R.E.M., 2008 SCC 51 , 235 C.C.C. (3d) 290 (S.C.C.) at ¶ 65; R. v. Hunter, [2000] O.J. No. 4089 (Ont. C.A.) at ¶ 5. The court is entitled to accept parts of a witness's evidence and reject other parts. Similarly, the court can accord different weight to different parts of the evidence that it has accepted: R. v. J.H., 2005 ONCA 253, 192 C.C.C. (3d) 480 (Ont. C.A.) at ¶ 44.
[7] The vast majority of assault prosecutions turn on the evidence of the two principals - the complainant and the accused: R. v. S.C.M., [1997] O.J. No. 1624 (Ont. C.A.) at ¶ 3. However, a verdict of guilty may in appropriate cases be safely founded on the evidence of a single witness, regardless of the offence or offences charged: Vetrovec v. The Queen; R. v. A.G., 2000 SCC 17. However, reaching a verdict must not devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the unshifting burden on the Crown of proof beyond a reasonable doubt: W.(D.) v. The Queen at p. 409.
[8] It must be emphasized that mere disbelief of the Accused's evidence does not satisfy the burden of persuasion upon the Crown: W.(D.) v. The Queen, supra at p. 409. In other words, to use disbelief of the Accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes a legal error: R. v. Dore, 2004 ONCA 32078, 189 C.C.C. (3d) 526 (Ont. C.A.) at p. 527; R. v. S.H., [2001] O.J. No. 118 (C.A.) at ¶ 4-6. The court must not reach its verdict based on merely choosing between the defence and prosecution evidence. Instead, the court must be satisfied on the totality of all the evidence that there is no reasonable doubt as to the Accused's guilt: R. v. Austin, 2006 ONCA 39077, 214 C.C.C. (3d) 38 (Ont. C.A.) at ¶19 – 24; R. v. C.L.Y., 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.); R. v. Dinardo, 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.) at ¶ 23; R. v. J.H.S., 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.); R. v. R.E.M., 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at ¶ 67; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.).
[9] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles, 1997 ONCA 1150, 116 C.C.C. (3d) 435 (Ont. C.A.); R. v. Mina, [1994] O.J. No. 1715 (Ont. C.A.) (affirmed R. v. Mina, [1995] 2 S.C.R. 415). In approaching the issue of credibility, the court in not only entitled to compare the evidence of the Accused to the complainant, but it has a positive duty to assess the evidence of the Accused in light of the whole of the evidence, including the testimony of the complainant: R. v. Hull, 2006 ONCA 26572, [2006] O.J. No. 3177 (C.A.); R. v. Boffo, [1997] O.J. No. 5156 (C.A.) at ¶ 12.
[10] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: R. v. Wadforth, 2009 ONCA 716, supra at ¶ 66.
[11] An outright rejection of the Accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of his evidence as is a rejection based on a problem identified with the way he testified or the substance of his evidence: R. v. J.J.R.D., 2006 ONCA 40088, [2006] O.J. No. 4749 (C.A.) at ¶ 53 (leave to appeal dismissed [2007] S.C.C.A. No. 69); R. v. R.E.M., 2008 SCC 51, supra, at ¶ 66; R. v. C.F., 2010 ONCA 424, [2010] O.J. No. 2499 (C.A.) at ¶ 9; R. v. J.A., 2010 ONCA 491, [2010] O.J. No. 2902 (C.A.) at ¶ 19 to 23; R. v. J.C., [2013] O.J. No. 3383 (C.A.) at ¶ 7; R. v. J.W., [2014] O.J. No. 1979 (C.A.); R. v. O.M., [2014] 3210 (C.A.).
[12] The court may reject the evidence of the Accused and convict solely on the basis of accepting the evidence of the complainant provided that the court also gives the evidence of the Accused a fair assessment and allows for the possibility of being left in reasonable doubt, notwithstanding acceptance of the complainant's evidence: R. v. Jaura, [2006] O.J. No. 4157 (Ont. C.J.); R. v. J.J.R.D., supra; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.) at ¶ 77.
[13] Where there are significant inconsistencies or contradictions within a complainant's testimony, or when considered against conflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established: R. v. Norman, 1993 ONCA 3387, 87 C.C.C. (3d) 153 (Ont. C.A.) at pages 172-4; R. v. Stewart, 1994 ONCA 7208, 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Oziel, [1997] O.J. No. 1185 (C.A.) at ¶ 8 and 9.
[14] Demeanour evidence, while relevant, alone cannot suffice to found a finding of guilt: [Yuill v. Yuill, [1945] 1 All ER 183 (C.A.)](Yuill v. Yuill, [1945] 1 All ER 183 (CA)); R. v. K.A., 1999 ONCA 3756, 137 C.C.C. (3d) 554 (Ont. C.A.); R. v. W.S., 1994 ONCA 7208, 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Gostick, 1999 ONCA 3125, 137 C.C.C. (3d) 53 (Ont. C.A.).
[15] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the Accused or confirm the complainant's evidence in every respect - the evidence should, however, be capable of restoring the court’s faith in the complainant's account: Kehler v. The Queen, 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at pages 5 and 6; R. v. Betker, 1997 ONCA 1902, 115 C.C.C. (3d) 421 (Ont. C.A.) at page 429 (leave to appeal refused [1998] 1 S.C.R. vi, [1997] S.C.C.A. No. 461); R. v. Michaud, 107 C.C.C. (3d) 193 (S.C.C.).
[16] The fact that a complainant pursues a complaint cannot be a piece of evidence bolstering his or her credibility, otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.), 1994 ONCA 8756, 35 C.R. (4th) 340 (Ont. C.A.) at ¶ 3.
[17] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B., 79 C.C.C. (3d) 257 (S.C.C.) at page 300; R. v. Prasad, [2007] A.J. No. 139 (Alta. C.A.) at ¶ 2-8; R. v. M.W.M., [1998] O.J. No. 4847 (C.A.) at ¶ 3; R. v. Jackson, [1995] O.J. No. 2471 (C.A.) at ¶ 4 and 5; R. v. Windibank, 2012 ONCA 237, [2012] O.J. No. 1604 (C.A.) at ¶ 8 - 13. The court must remain vigilant to the fact that the burdens of production and persuasion rests upon the prosecution and that the Accused need not prove a motive to fabricate on the part of a principal Crown witness: R. v. Batte, 2000 ONCA 5751, 49 O.R. (3d) 321 (C.A.); R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149 (Ont. C.A.). Evidence of a witness' motive to lie is relevant to the Accused as witness: R. v. Murray, 1997 ONCA 1090, 115 C.C.C. (3d) 225 (Ont. C.A.) at ¶ 11-14.
3.0: FACTS NOT IN DISPUTE
[18] After hearing the evidence and the submissions of counsel, there are certain relevant facts not in dispute. Those undisputed facts are as follows.
[19] The Defendant and his brother, Bradley Mayer-Harman, jointly own a bungalow on Dods Drive in Alton. During all material times the Defendant, his mother, and Jason Galbraith, a business associate of Bradley Mayer-Harman, lived on the main floor of the house. Bradley Mayer-Harman lived elsewhere. The Harmans constructed an apartment in the basement to generate rental income.
[20] Bradley Mayer-Harman was the landlord, signing the lease and collecting rent while the Defendant acted as superintendent. As superintendent, the Defendant was responsible for day-to-day contact with the downstairs tenant and for managing maintenance and repairs.
[21] C.T. was the first tenant in the basement apartment. She began occupying the place in June 2017 with her three-year-old son.
[22] C.T. and the Defendant were acquaintances prior to her tenancy. After she moved in, she became friends with the Defendant and his family.
[23] There was a common entry to both dwellings but a separate and locked door to the basement flat, as shown in Exhibit #2. This allowed access to the basement apartment door from within the house.
[24] On the night of the alleged offences, C.T. locked her apartment door before going to bed.
[25] C.T. called the Caledon Ontario Provincial Police on August 9, 2019 to lodge this complaint against the Defendant. On August 12, 2019 she was given written notice of termination of tenancy by Bradley Mayer-Harman. She moved out September 1, 2019. There has been ongoing landlord/tenant litigation ever since.
4.0: ANALYSIS AND FINDINGS OF FACT
4.1: Did the Defendant have access to C.T.’s locked apartment?
4.1.1: Access by the Defendant generally
[26] During much of C.T.’s tenancy, there were chronic maintenance and repair problems with the basement apartment that required frequent attention. These problems mainly, and frequently, concerned the plumbing and sewage systems including flooding. The apartment refrigerator was also faulty. After attempts by the Defendant to have it repaired, C.T. replaced it at her expense but was compensated by the landlord. The Defendant also responded to complaints of mold. The Defendant estimated that he was in C.T.’s apartment to fix or assess repairs more than two dozen times over the course of her tenancy.
[27] C.T., Bradley Mayer-Harman, and Defendant all agreed that because the Defendant was the on-site superintendent C.T. dealt with the Defendant on nearly all matters concerning maintenance and repair.
[28] I find as a fact that as the superintendent-in-residence the Defendant needed access to C.T.’s apartment in order to deal with frequent and ongoing maintenance and repair issues.
4.1.2: Did the Defendant have his own key to C.T.’s apartment?
[29] On the subject of whether the Defendant had a key to the basement apartment, C.T.’s evidence on this point was short, direct, and clear: she said that because the Defendant was the superintendent and because he lived there and had to come in often, he had a key to her place. She did not testify that she ever saw him with a key. In the absence of any other credible evidence, C.T.’s belief that he had a key makes inherent sense in the circumstances given the Defendant’s active role as superintendent and upstairs neighbour. However, for the following reasons, I find that I am in a state of reasonable doubt that the Defendant had his own key to the basement apartment.
[30] The Defendant testified that although he was responsible for maintaining and repairing C.T.’s apartment, he did not have a key to her place; only his mother and brother had one. He said that he is very disorganized, and his family believed he would lose the apartment key if given one. The Defendant also testified that he did not even have a key to his own upstairs dwelling. The Defendant said that his mother did not tell him where she kept her copy of the basement apartment key.
[31] Bradley Mayer-Harman testified that there were three keys to the basement apartment. He said that C.T. had one, his mother had one, and he had the third one. He did not let the Defendant have a key to the basement flat because he did not trust his brother not to lose it and told him so. He also said the Defendant was not given a key to the upstairs dwelling for the same reason despite living there.
[32] The evidence of the Harman brothers was consistent with each other and otherwise uncontradicted with respect to the Defendant not having his own key. I therefore find that I have a reasonable doubt that the Defendant had his own copy of C.T.’s apartment key.
4.1.3: Did the Defendant have access to a key to C.T.’s apartment?
[33] Although I am unsure the Defendant had his own key to C.T.’s flat, I find beyond a reasonable doubt that he had access to one.
[34] Bradley Mayer-Harman said he kept his copy at his house. I believe him and thus the Defendant would not have access to that key without the explicit knowledge of his brother. Bradley Mayer-Harman’s uncontradicted evidence is that his mother kept her key on a keychain that was usually – but not always - in her purse.
[35] In cross-examination the Defendant stated that he was unaware that either his mother or his brother had a basement key until after he was arrested on these charges. This contradicts his earlier evidence that he knew there were three keys. It also contradicts what his brother said on this point. Given the whole of the evidence I find as a fact that the Defendant’s family discussed with him who had keys to the basement apartment and why he was not allowed to have one. Therefore, I do not believe the Defendant’s evidence about his ignorance of the existence of keys by his mother and brother until he was arrested. I am certain that he knew that his family and the tenant all had keys. The Defendant’s knowledge of the existence and whereabouts of a basement key was essential to his role as superintendent, especially if he did not have his own copy.
[36] Both the Defendant and his brother testified that any time there were maintenance or repair issues, C.T. would either leave the door unlocked or was present to let the Defendant in as required. Since Bradley Mayer-Harman left the Defendant to deal with day-to-day issues and since he did not live at the house, he had no first-hand knowledge of whether C.T. would either leave her door unlocked or be present. At its highest, the evidence of Bradley Mayer-Harman on this point is speculative and I afford no weight on it.
[37] C.T. was not questioned about the arrangements to give the Defendant access to her apartment. However, her evidence that she believed the Defendant had a key necessarily implies that there were times when she knew the Defendant entered her place without her being present and without her purposely leaving her door unlocked. Otherwise, there would be no need for her to believe the Defendant had a key, whether it was his own or that of his relatives.
[38] I reject the Defendant’ testimony about not having access to a key for several reasons. First, given his role as superintendent and the frequency of repairs that included flooding it was important that he could gain entry quickly. Second, given that C.T. worked two jobs it is extremely unlikely that she would be easily available to be present to let the Defendant or repairmen in during her working hours. Third, while there may have been times that C.T. agreed to leave her place unlocked given the intermittent and unpredictable nature of the sewage problems, it is unlikely that she would always know before going to work to leave her door unlocked while she was away. Fourth, I disbelieve the Defendant did not have access to his mother’s key. As I stated earlier, I have found as a fact that he knew his mother had a key to the basement apartment. In order to perform his role as superintendent he needed to have access his mother’s copy of the key. I disbelieve him when he said he didn’t know where his mother kept the key. Bradley Mayer-Harman’s evidence that it was unlikely for the Defendant to have access her key is speculative and of no evidentiary value.
[39] I have no doubt that the Defendant had access to his mother’s key whenever he needed or wanted because (a) he was a party to the conversation with his mother and brother about who had a copy of the key, (b) as co-resident with his mother and as superintendent the Defendant, like his brother, must have known that his mother kept her copy of the key on a key chain that was usually but not always kept in her purse, and (c) as superintendent he need for unhindered access to the key to access to the basement apartment given the nature and frequency of repairs.
4.2: Did the Defendant send sexually explicit texts to C.T. prior to the alleged offences?
[40] Before C.T. moved in she and the Defendant were acquaintances, having been in air cadets years before. After she moved in, they became friendly with each other. They would meet often in the garage, either with or without others, to smoke and chat. The Defendant estimated that he saw C.T. almost daily. They also communicated by phone or text, but mostly in person.
[41] C.T. testified that shortly after moving in she received texts with sexual content from the Defendant. This is relevant to the issues of motive and to C.T.’s decision to not complain to the police immediately after the alleged assault. The Defendant denied every having done so. For reasons I will explain, I disbelieve the Defendant and I believe C.T. on this issue.
[42] C.T. said that starting in 2017 the Defendant sent her texts of a sexual nature. She said that in one text, the Defendant wrote that he wanted her to have sex with two men at the same time. She also said that the Defendant sent her a video of him masturbating. He also sent her pictures of his naked genitals. C.T. said these communications were received on a cell phone and cell provider, neither of which she has any longer. She also said that shortly after receiving these communications she showed the photos and video to her then boyfriend, Christopher McLaughlin. She said that these communications did not make her fearful, but she was uncomfortable enough to tell the Defendant to stop it and that she wasn’t interested in him. She said he apologized and offered her money to not call the police.
[43] Christopher McLaughlin is the ex-boyfriend of C.T. He dated her from March 2017 to September 2018. He lived about an hour’s drive away but came to visit her frequently. It was apparent during his testimony that McLaughlin and C.T. broke up on poor terms; C.T. had even called the police about him at the end of their relationship. Consequently, McLaughlin was a witness who in no way seemed biased in favour of C.T. To the contrary he was a very reluctant witness who grudgingly spoke the truth. I found his evidence to be reliable, credible, and trustworthy. He testified that while they were dating, C.T. showed him pictures of nude male privates on her phone. She told him that they were from the Defendant. McLaughlin did not see a face nor did he see who the sender was, but he did suggest to C.T. that she delete the Defendant from her contacts. She deleted the Defendant from her contacts for a while but restored him because she needed to communicate with him about maintenance and repair issues. McLaughlin’s evidence substantially and convincingly corroborates C.T.’s evidence that she received sexual messages from the Defendant in 2017.
[44] C.T.’s uncontradicted evidence was that she also showed the explicit images to Jason Galbraith, the upstairs tenant and business associate of Bradley Mayer-Harman. She testified that Galbraith spoke to Bradley Mayer-Harman who in turn apologized to her for the Defendant’s behaviour. Bradley Mayer-Harman denied that in 2017 he was told about these texts and said that he did not apologize to C.T. for his brother’s conduct at the time. He did, however, testify that he apologized to C.T. later for a salacious text sent by the Defendant to C.T. in August 2019.
[45] The Defendant denied sending sexually explicit texts to C.T. in 2017. He also denied either apologizing to C.T. for those texts or offering her money to not call the police. The Defendant testified categorically that he never, ever apologized to C.T. for anything. He then promptly contradicted himself by stating that there was one time in the garage that he was crying and apologized to C.T. about the maintenance problems and offering her money for all the repair issues. He also admitted that when he said he apologized that there were no maintenance problems at that time. His denial of ever apologizing is also contradicted by the reliable evidence of Christopher McLaughlin who gave evidence that in 2018 the Defendant tearfully apologized to C.T. in his presence.
[46] C.T. said that because of her complaints to her boyfriend and Jason Galbraith, as well as the apologies of both Harman brothers she tried to brush off what happened in 2017 and felt there was no need to report it to the police.
[47] I believe C.T. and disbelieve the Defendant on the topic of prior sexual communications for several reasons. First, there is uncontradicted evidence that while smoking together, the Defendant and C.T. discussed sex and that the Defendant sought relationship advice from C.T. signifying that the Defendant was uninhibited about communicating with C.T. concerning intimate matters, including sex. Second, the evidence from Christopher McLaughlin corroborates that C.T. received texts that contained sexually explicit images and that she complained they came from the Defendant. Third, it was uncontradicted that C.T. showed the images to Jason Galbraith at the time. Fourth, I disbelieve Bradley Mayer-Harman that he was not aware of these 2017 communications because I find it impossible that Jason Galbraith would not have told his business associate Bradley Mayer-Harman what he was shown. As landlord and brother of the Defendant, there is no doubt in my mind that he would then have communicated with his brother and with C.T. about what he learned. Fifth, the fact that the Defendant sent a similar text to C.T. in August 2019 confirms his comfort with sending C.T. sexual communications. Sixth, the Defendant was not a credible witness on the question of apologizing: first he said he never apologized to C.T. for anything then gave details about crying and offering her money while apologizing to C.T. about repair problems. His evidence was not reliable and does not raise a reasonable doubt on this issue.
[48] I find as a fact that in 2017 the Defendant sent sexually explicit communications to C.T. who, at that point, was willing to brush it off given apologies of the Harman family. This finding is relevant to both the Defendant’s motive and to C.T.’s reasons for not promptly reporting the alleged assault in 2018.
4.3: Did the Defendant sexually assault C.T.?
4.3.1: The alleged assault
[49] C.T. gave a detailed, consistent, compelling, and unshaken account of the alleged assault. She said that in late summer 2018, probably August, she was sleeping nude except for a sleeping bra. She had locked her door before going to bed. Around 1:00 a.m. she woke up because she was being touched. At first she thought it was her son but when she turned over she saw the shirtless Defendant standing before her. She saw him masturbating with his pants part way down while he was running his hand along her body to the side of her buttocks. C.T. acknowledged that she told the police that Defendant had “rubbed her left side” and did not tell them that he had touched her butt. I accept her explanation that she felt telling the police the Defendant touched her buttocks was “a little personal” and, in any event, there is no material discrepancy in her descriptions.
[50] When C.T. realized what was happening, she exclaimed, “What the fuck, Brennen?! Get the fuck out of here!” After the Defendant replied, “You don't want me here?” she told him to get out. He left and she locked her door.
[51] C.T. said the whole incident took about ten seconds. The incident scared her because it happened while her son was in the apartment.
4.3.2: The material events shortly following the alleged assault until August 2019
[52] After collecting herself, C.T. then texted her boyfriend, Christopher McLaughlin, and told him what had just happened. McLaughlin testified that while he was sleeping C.T. contacted him to say that she woke up when a naked man had entered her room her touched her while masturbating. He testified that C.T. told him that the man was the Defendant. At first, he was not sure whether she called, texted, or told him in person but then recalled it was by text which is consistent with what C.T. said. He was also unsure what time of year it was, but it was probably the summer of 2018.
[53] There is no chance of collaboration or collusion between C.T. and McLaughlin. They have not spoken since they broke up in September 2018 and it was clear from his evidence that he is no longer friendly towards her. McLaughlin was a very reluctant but honest, reliable, and independent witness. I believe his evidence that C.T. woke him up to complain that the Defendant had just sexually assaulted her. I only rely on this evidence as proof that C.T. told somebody at the time of the incident, thereby rebutting the submission that she fabricated these complaints only when her tenancy was terminated in 2019.
[54] C.T.’s gave uncontradicted evidence that the day after the alleged assault she told Jason Galbraith what happened. She also gave further uncontradicted evidence that a few days after telling Galbraith she told the Defendant’s mother who tearfully told C.T. that the family would try to get the Defendant some help. This uncontradicted evidence also rebuts the submission of recent fabrication in 2019.
[55] C.T. also said that shortly after the assault she spoke to Bradley Mayer-Harman who, like his mother, said that they would get the Defendant some help. Bradley Mayer-Harman denied that this conversation took place, stating that he only learned of this complaint in 2019 when he gave C.T. notice that her tenancy was being terminated. I disbelieve Bradley Mayer-Harman because as landlord, business partner of the tenant Galbraith, son of one of one tenant, and as the Defendant’s brother I find that he was informed contemporaneously about the Defendant’s behaviour in 2018, just as I found he had been in 2017.
[56] C.T. testified that a few days after the incident she saw the Defendant in the garage. She said they were alone and that as he was crying, the Defendant apologized and said that he would not do it again. She said he offered her money to shut up about it, just as he had done the year before. The Defendant denied this happened. I disbelieve the Defendant not only because his evidence about apologizing at all to C.T. was internally inconsistent, but because it is contradicted by the believable evidence of C.T. as corroborated by Christopher McLaughlin regarding another apology by the Defendant he witnessed a few days later.
[57] C.T. said that a few days after speaking to Jason Galbraith, Bradley Mayer-Harman, Mrs. Harman, and privately with the Defendant, she was in the garage with Christopher McLaughlin. She said the Defendant entered and gave a tearful apology to both of them for what happened. She said she told him to leave her alone and to get help. The Defendant said he did not recall having done such a thing. McLaughlin gave credible evidence that after C.T. told him what happened he was at her place in the garage. He said the Defendant’s eyes were watery from crying and that he looked sorry and apologized to C.T. McLaughlin said that the Defendant gave no details about what he was apologizing for, but he figured it was for what C.T. said happened. McLaughlin’s evidence materially corroborates C.T.’s evidence that the Defendant made an emotional apology to her and McLaughlin within a few days of the alleged assault. McLaughlin’s evidence is also confirmatory of the private apology described by C.T. given a few days earlier being similar in nature.
[58] C.T. explained why she did not complain to the police after the incident. She said that she found herself in a “tricky situation.” Despite feeling unsafe, she wanted to live near her son’s father for the child’s sake. She had two jobs in the community so that looking for a new affordable place to live was not easy. She wanted to avoid calling the police for several other reasons including that the Harman family said they would get the Defendant help, and the Defendant said – again – that he would stop this behaviour. C.T. had also formed a friendship with the Defendant and his family in spite of the Defendant’s behaviour. It was her uncontradicted evidence that she smoked with Defendant and his mother, that she babysat for Bradley Mayer-Harman, and they shared bonfires and snacks in the yard. The otherwise friendly relationship between C.T and the Defendant also played a role in her decision to keep it within the household. All these factors reasonably explain why she was prepared to brush off the Defendant’s sexual behaviour and avoid calling the police at that time. C.T. had an opportunity to tell the police on August 26, 2018 when she called them about McLaughlin, but she chose not to for the reasons she gave. I believe C.T. that she did not want to call the police right away but was once more willing to tolerate the Defendant’s behaviour in the circumstances, including his promises to stop and his family’s assurances to her.
[59] I found the Defendant was a generally poor witness who gave internally inconsistent evidence and was materially contradicted by C.T. Her evidence concerning the assault was credible and reliable, having been given in a forthright manner containing a vivid and internally consistent description which was never shaken in cross-examination. Her evidence about receiving sexually explicit messages in 2017 and the Defendant apologizing for the assault, materially confirmed by Christopher McLaughlin, enhanced her reliability. The reliability and credibility of C.T.’s evidence is further strengthened by my findings that the Defendant had the opportunity to commit these crimes by having access to her apartment and that he had a demonstrated sexual fascination with her. His sexual interest in C.T. at the time of the incident corroborated by the sexually explicit text he sent her in both before and after the assault.
[60] C.T. remained a tenant for another year after the assault. She testified that in October 2018 the Defendant sent her two texts: “You OK?” and “I hear you” in the middle of the night (Exhibit 8). When she asked the Defendant what he meant by the texts, she testified that that he told her he heard her masturbating. C.T. said that she could hear voices from upstairs but could not make out words. The Defendant said that he sent the first text because he heard a bang from downstairs that woke him up. He said he sent the second one after he woke up and went out for a cigarette and thought he heard C.T. waking up. He denied telling C.T. that he sent them because he heard her masturbating. In cross-examination the Defendant said he could not hear sound directly from downstairs but sent the texts because he heard general noise and was unsure of the source. He said he intended the second text to be a question and not a statement. His evidence was contradictory: on the one hand, he said he heard not only a vague noise from the basement but on the other hand he said he specifically thought C.T. was rising from bed, which must mean that he could hear from downstairs. I disbelieve the Defendant and believe C.T. The Defendant’s evidence was not only internally inconsistent but contradicts C.T.’s evidence that one could hear voices through the floor. Also, the text “I hear you” cannot reasonably construed as a question, but only as a statement of fact. Given my earlier findings of fact that the Defendant was sexually interested in C.T., I find that he sent those texts out of intimate interest in C.T. rather than general curiosity.
[61] On Monday August 5, 2019 at 11:47 p.m. the Defendant sent C.T. the following sexually explicit text (Exhibit 8):
Would you ever let me watch you and [her current boyfriend] Christian if I paid you guys? Think about [it]. If not I’m sorry for asking and please don't tell anyone I asked.
[62] This text is significant for several reasons. First, it confirms the Defendant’s established prurient interest in C.T. and is relevant to his motive at the time of the offence. Second, it was the proverbial straw that broke the camel’s back by being the catalyst for C.T. to complain to the police. I find as a fact that upon receiving this text she was no longer willing to put up with the Defendant’s behaviour because her previous complaints to both him and his family about him proved ineffective. Third, the Defendant’s evidence that he was not sexually interested in C.T. when he sent the text was ludicrous and stretched my credulity beyond the breaking point, further undermining his reliability as a witness. Fourth, the phrase “please don’t tell anyone I asked” provides insight into the Defendant’s state of mind by supporting C.T.’s evidence that the Defendant’s family was aware of his prior sexual predation of C.T. and that he did not want them to find out again.
[63] C.T. did not respond to the Defendant’s text directly. Counsel stipulated that C.T. made her first call to the police on August 6, 2019. This is consistent with her evidence that she made the call right after she got the text. She called the incorrect police number at that time and was told she should call the Caledon Ontario Provincial Police which she did on August 9. After calling the Ontario Provincial Police, C.T. gave uncontradicted evidence that she told Jason Galbraith that she made the call. Some time on August 9, C.T. and Bradley Mayer-Harman had a conversation in which C.T. was told she would have to move out. On August 12, 2019 she was served with a Notice to Terminate Tenancy (Exhibit 4).
[64] It was submitted that C.T. was motivated to make a false complaint to the police after she was told to move out. I have already rejected this submission because I found as fact that shortly after the incident in 2018 she told her boyfriend and other residents of the house about the assault. As a result, I will only briefly comment on the events of early August 2019 after the Defendant sent the sexual text to C.T.
[65] The evidence of the chronology between the Civic Holiday long weekend and C.T. receiving written notice of termination was convoluted and sometimes confusing. Having sifted through the evidence on this point, I doubt that C.T. called the police in retaliation for being evicted. I believe Bradley Mayer-Harman when he testified that he is a highly organized businessman who acts in accordance with long-term planning. He said that he told C.T. on a whim during the Civic Holiday weekend in August 2019 that she would have to move out so that the Harman family could renovate the house. He also said that he didn’t have the paperwork ready for a further week on August 12, 2019. This evidence paints a picture of a disorganized and abrupt decision to evict C.T. Not only is this contradictory to Bradley Mayer-Harman’s business style, but it is far more consistent with C.T.’s evidence that she was told to move out once it was revealed that she called the police rather than her calling the police because she was evicted. In any event, for the reasons I gave earlier, I find that that C.T. did not make up these allegations in response to being evicted, having complained to people about it at or near the time it happened a year earlier.
4.3.3: Summary of Reason why I find the Defendant committed these crimes
[66] In summary, I find that the prosecution has proven beyond a reasonable doubt that the Defendant unlawfully entered C.T.’s apartment and sexually assaulted her during the summer of 2018 based on the following findings:
(a) the Defendant had opportunity to commit the offences because he had access to a key to her apartment and could enter it when locked; (b) the Defendant had motive to commit the offences because of his demonstrated continual sexual fascination with C.T.; (c) the Defendant apologized to C.T. for what he done within a few days and in the presence of C.T.’s then boyfriend; (d) C.T. did not fabricate the complaint when evicted in 2019 because she told her boyfriend and other occupants of the house what happened contemporaneously with the event; (e) the Defendant’s evidence did not raise a reasonable doubt; (f) C.T. gave good reasons why she did not complain until 2019; and (g) C.T. gave compelling, detailed, and unshaken evidence about these crimes.
5.0: CONCLUSIONS
[67] For the reasons set out herein, my verdicts are therefore as follows:
(a) Count 1: Unlawfully in a Dwelling House, section 349(1) CCC – guilty; (b) Count 2: Sexual Assault, section 271(1) CCC – guilty.
Richard H.K. Schwarzl, Justice of the Ontario Court of Justice