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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: September 6, 2023 COURT FILE No.: 18-9240

BETWEEN:

HIS MAJESTY THE KING

— AND —

N.J.

Before: Justice Angela L. McLeod

Heard: November 4, 2022, March 7, 2023, June 23, 2023

Counsel: MARIA DI CLEMENTE AND JENNIFER ARMENISE.................. counsel for the Crown JOHN RAFTERY............................................................................. counsel for the accused

McLeod J.:

Overview

[1] Mr. N.J. stands charged that on or about the 31st day of October in the year 2018, did commit a sexual assault on J.H., contrary to section 271 of the Criminal Code.

[2] The Crown proceeded by way of Indictment. N.J. elected to have a preliminary inquiry, trial in the Superior Court of Justice and then re-elected trial in the Ontario Court of Justice.

[3] Initially Ms. Di Clemente had carriage of the trial. Ms. Armenise resumed carriage post day one.

[4] The defence admitted identity, date, jurisdiction, and that sexual contact occurred between the parties. The material issue for the court was consent, considered in the assessment of the credibility and reliability of the complainant.

[5] The only witness for the Crown was the complainant.

[6] The only witness for the defence was the accused.

[7] The evidence of a nurse practitioner was filed as an agreed statement of fact, Exhibit #2.

Summary of the Facts – Uncontested

[8] The following facts are uncontested:

(1) Ms. J.H. and Mr. N.J. were known to one another for approximately 2 years. They had a positive relationship.

(2) Ms. J.H. had been in a car accident a few weeks before the day in question and as a result had chronic back pain.

(3) Ms. J.H. lived in the apartment located above her family’s business.

(4) On the day in question Ms. J.H. had returned home from the chiropractor and was resting in bed. She was awoken by a call from the business downstairs advising that Mr. N.J. was wanting to see her.

(5) Ms. J.H. got out of bed, put on a robe, and went down the stairs to meet Mr. N.J..

Summary of the Evidence of Ms. J.H.

[9] What follows is a summary of the salient points of Ms. Higgin’s testimony:

(1) On the way up the stairs, Mr. N.J. started to play with the bottom of her robe, trying to see underneath. Ms. J.H. hit his hand away and told him to stop, that she wasn’t feeling good. She told him that she would hang out with him but that she did not want to engage in sexual activities. Mr. N.J. responded, “don’t worry, I will make it feel good”. In cross examination, Ms. J.H. testified that Mr. N.J. was probably not pulling the robe but rather making comments that she looked good. She stated, “probably, I don’t’ remember to be honest”.

(2) The parties went into the bedroom of the apartment and talked for a bit. Mr. N.J. had his hands on Ms. J.H. waist. At some point, he spun her around, pushed her face down on the bed and placed his hands on her back so that she couldn’t stand up. She yelled out in pain. He repeated, “don’t worry, I will make it feel good”.

(3) She made it clear that the action was hurting her back and that she didn’t want to “do this”. He began to ‘dry hump’ Ms. J.H.. For the third time, he said, “don’t worry, I will make it feel good” and then “let’s have some fun”.

(4) Ms. J.H. responded that the action was hurting her back and that they could cuddle on the bed. She said, “I don’t want to do anything more”.

(5) Mr. N.J. then took his hands off her back and spun her around, trying to kiss her neck. She told him that she didn’t like it. He tried to remove her robe. She told him not to.

(6) Ms. J.H. tried to get onto the bed to get away because Mr. N.J. wasn’t listening to her. He pulled her robe off. He then left the room and returned after 5-10 minutes. He had removed his pants but was still wearing his boxer shorts and shirt. He got into the bed, under the covers and was spooning Ms. J.H.. He began to rub her back. Ms. J.H. was naked.

(7) Mr. N.J. started touching Ms. J.H. sexually, her arm, shoulder, chest, neck, and breast area. She continued to tell him that she wasn’t interested and was in too much pain. She repeated that she wasn’t interested in anything sexual and suggested they just cuddle.

(8) Mr. N.J. tried to kiss and bite her ear. He tried to lower his hands toward her belly button. Ms. J.H. kept putting his hand back to his own body. He continued to attempt to touch her vagina. She grabbed his hand by the wrist. He lifted her right leg so that he could insert his penis into her vagina.

(9) Ms. J.H. screamed out. Mr. N.J. inserted his penis into her vagina. She yelled out, telling him to stop, that it was hurting her, to leave. He continued. She was yelling stop, get out, over and over.

(10) Mr. N.J. moved himself and Ms. J.H. such that she was now on her back, and he was in front of her on his knees. He placed one hand on either leg of Ms. J.H.. She was struggling to move or to remove him due to her back injury.

(11) He placed one hand on her chest and continued to penetrate her vagina. She was screaming and crying and trying to push him off, squeezing his stomach and pinching. Mr. N.J. kept saying, “wait a minute, let me finish”. She brought one hand down to attempt to pull his penis out of her vagina. He grabbed her wrist and put it up to her head. She told him to stop, that she believed she was bleeding.

(12) She repeated that he was hurting her and that she was bleeding. He repeated, “let me finish”.

(13) Ms. J.H. tried to move her hips anyway that she could. Mr. N.J. pushed her legs up towards her shoulders and face to attempt to re-enter. Both parties realized that his penis was at her anus. Mr. N.J. smiled at her and “rammed it inside”. She screamed out and moved her hips aggressively in an effort to get him out. When she did, it hurt, and he didn’t stop.

(14) She told him that she had blood on her hand. He responded that “blood is a good lubricant”.

(15) She told him to “f off” and to “get out”. He got off the bed and she pulled the covers over her naked body. Mr. N.J. lingered in the doorway before moving about the apartment. Ms. J.H. was screaming “get out”, over and over. She was crying.

(16) She could hear Mr. N.J. in the apartment, on the phone, shuffling around the living room area. Then she heard the front door and knew that he was gone.

(17) She laid in her bed for 2-3 hours, in “absolute agony”. Her vagina, anus and back were in pain.

(18) Eventually, she got up, cleaned up and drove to her parent’s house. The family was to celebrate the anniversary of her mother’s emigration to Canada.

(19) Mr. N.J. sent a text message to Ms. J.H. at 6:23pm. He wrote:

hey im unbelievably sorry if there is anything I can do please let me know. By all means if you wanna stop talking to me I understand im so sorry

(20) She replied that she had spent the day in the hospital, which was untrue, wanting him to feel bad for what he had just done. She told him that she had to get stitches. She wanted him to know that it was serious. She also said “I’m not sure what to say to you I just keep replaying what happened, it was so painful. I def want time, I know you didn’t intend to hurt me but I did keep saying no more I don’t know I just don’t want to talk or see anyone for awhile”.

(21) Ms. J.H. took some pain killers and called a friend. She wanted to “stop the images in my head”. It was Halloween night. She grabbed a costume from her parent’s house and met her friend downtown. They went to a night club. They hung out, outside the club, “more or less I let her distract me and she talked about her life, I don’t remember what else, anything to not think about what had happened. I didn’t tell her either ‘cause I didn’t want her to bring it up”.

(22) Ms. J.H. could not recall the name of the pain killers, nor the last name of the friend.

(23) Ultimately, after telling her mother about the allegations, Ms. J.H. went to the police on December 5, 2018. She had also spoken with a female friend who told her that it would be a good idea to come forward.

(24) Ms. J.H. testified that as a result of the assault her back was worse, she had swelling and tearing in her anus and a lot of tearing in her vaginal walls on the inside. In cross examination she testified that she went to her family doctor on or around November 8, 2018, specifically to address her injuries. She told the nurse practitioner at the doctor’s office that she had been raped on Halloween night. The nurse practitioner conducted a physical examination of Ms. J.H.. Ms. J.H. believed that she would have been healed by the time of the examination. She told the nurse practitioner that she believed that she “had been ripped from vagina to anus and that the walls of her vagina ripped”. In cross examination Ms. J.H. testified that the nurse practitioner said that she was “healing nicely but there was damage done” and that “I was healing nicely but she could see them”.

(25) On November 6, 2018, Ms. J.H. sent the following text to Mr. N.J.:

I’m not sure why you sent me that video on insta but I’ve decided I don’t ever want to see you again. You just don’t listen and honestly you raped me. I kept telling you no and even held you body back. I feel disgusted by what happened and on top of it you forced yourself into my ass which ripped me open. It’s been a god awful experience trying to recover mentally and physically. Please don’t ever contact me.

(26) Mr. N.J. responded as follows:

Hey sorry, I didn’t mean to send it too you it must of just been when I was send it to a few ppl i think so just a bad habbit when I see something funny id automatically send to you and I didn’t mean to force my way into your ass loke but I am beyond sorry and would do anything to make it upto you but I understand and wont msg you ever again or anything

Summary of the Evidence of Mr. N.J.

[10] What follows is a summary of the salient points of Mr. N.J.’s testimony:

(1) On the way up the stairs to the apartment he noticed that Ms. J.H. was wearing a “very short robe” and he “could see her bum”. He commented “you have a nice butt”. In response she said, “you wish you could get this” to which he replied, “you are not wrong”.

(2) Once in the bedroom he hugged her and she said, “be gentle my back is still hurting, don’t rock me back and forth”. He said, “I can make it feel better” and she replied, “I am sure you can”. Mr. N.J. then bent her over the bed by the waist, started rubbing her lower back, telling her how beautiful she was, tickling her. Then he turned her around and they wrestled for a bit, he took off her robe and she jumped on the bed, and he tickled her some more. She got under the covers. He went to get some water. When he returned, he said that he was going to join her and removed his pants and got under the covers.

(3) He began to rub her back and then moved his hand to the top of her breasts and she said, “don’t ‘cause they were tender”, he opined likely because maybe she was on her period.

(4) Mr. N.J. moved his hand down to her stomach and massaged her back and legs, moving to her inner thigh slowly. Ms. J.H. said “oh, you are going to try and make me feel better”, to which he replied “ya”. He then massaged her clitoris, and she moved her butt closer to him, he thought “as in to engage, I would assume more sexual activity”. So, he massaged her clitoris more, then pulled down his boxers and tried to enter her vagina with his penis.

(5) Ms. J.H. told him the position was uncomfortable. Mr. N.J. lifted her leg and entered her vagina. After a couple of minutes, Ms. J.H. advised that the position was uncomfortable because of her back, so he moved her leg over to the right-hand side, away from the wall, then lifted her legs over his shoulders. Once again, she advised that the position was uncomfortable. He said, “give me a minute or second” and he put her legs back down. She said, “ok fuck me just like that”. After a short time, he moved her body as she said that he “was too deep”.

(6) After a short time, she shifted her hips, coming towards Mr. N.J. which he testified “popped me out and took a second to re-angle myself to go back in, going bit by bit – I accidentally thrusted Ms. J.H. in the rear”. Immediately, she said “get the fuck out”. Mr. N.J. wasn’t too sure what happened, then realized that was the only thing that could have happened. Ms. J.H. was yelling, telling him to leave. He scurried about looking for socks. He didn’t know what to think, he panicked and went home.

(7) Mr. N.J. sent a text to Ms. J.H. apologizing.

(8) In cross examination Mr. N.J. acknowledged that he was “highly aware” that Ms. J.H. was suffering from throbbing aching back pain on the day in question, as he saw how she was acting, and she told him her back hurt.

(9) In cross examination Mr. N.J. testified that because Ms. J.H. had said to him “are you going to make it better?” that he was taking steps to make sure that she was consenting. He said, “I care very much for her safety and pain”.

(10) In cross examination he agreed that being flirtatious is not an invitation to sex, and that saying “you wish you could get this” is not an invitation to sex. Additionally, Ms. J.H. did not seem to be in pain because she “wasn’t saying stop, she wasn’t jolting”.

(11) When Ms. J.H. went to her bed to lay down, the Crown suggested that wasn’t an invitation to him to also lay in the bed. Mr. N.J. responded, “consent is not just verbally, actions too, if she didn’t want me to be in the bed she would have said so”.

(12) When Mr. N.J. put Ms. J.H. legs down and she said, “fuck me just like that”, he testified that “consent can be conveyed more than just audibly”.

(13) He did not see any blood.

(14) Knowing that Ms. J.H. had back pain was not a concern for him as “she had quite a bit of mobility, her mobility was well enough, discomfort I would adjust, at the time it did seem like a good thing, so it happened”.

Summary of the Evidence of Susan Adams – Nurse Practitioner

[11] The agreed statement of fact reads as follows:

(1) Ms. J.H. visited Nurse Practitioner Sue Adams on November 8, 2018.

(2) Ms. J.H. attended for routine cervical cancer screening. She reported other medical ailments.

(3) Ms. J.H. reported to Sue Adams that she was raped on Halloween and went to the RVH emergency room.

(4) Ms. Adams did not make a note indicating that Ms. J.H. was ripped from ¼ way between her anus and vagina, or that Ms. J.H. directed her to this injury.

(5) Ms. Adams did not make a note indicating that she told Ms. J.H. that the wall of her vagina was torn or that there were injuries to the inside of her vagina.

W.D. (1991) - Analysis

[12] I reject the evidence of Mr. N.J.. His version of the events is not plausible. In assessing the plausibility, I have considered when the events occurred, how the events occurred, the chronology of the events, the inferences required to come to his conclusions and lastly the evidence challenging those inferences and conclusions.

[13] The evidence proffered by Mr. N.J. is so lacking in plausibility that it undermines his credibility.

[14] Mr. N.J.’s version suggests that persons known to one another, he caring for Ms. J.H., aware of her back injury and issues, advised that she is in pain, advised that he was hurting her when hugging, advised not to rock her back and forth while hugging felt it appropriate in those circumstances to:

(1) push her over at the waist on to the bed, bending her back.

(2) turn her around and wrestle with her for a bit.

[15] Furthermore, that in those circumstances, Ms. J.H. then ‘jumped’ onto the bed.

[16] Mr. N.J. suggests that the reason that Ms. J.H. told him not to touch her breast was because he assumed she was on her period. This point offends the rule in Brown and Dunn, and I find is an attempt to potentially explain the bleeding that she complained about.

[17] Mr. N.J. suggests that Ms. J.H., with her back injury, having laid in bed for several hours before as a result, was so uncomfortable having sex while laying on her side, that he thought it more comfortable to then lift her legs in the air, then turned her on her back and put her legs over his shoulders. It is unimaginable and defies logic.

[18] Mr. N.J. suggests that Ms. J.H., uncomfortable with her position, moved her hips, so forcefully that his penis was ‘popped out’ of her vagina. That as he attempted to re-enter her vagina he accidentally thrust his penis into her anus. Again, I find this implausible.

[19] Most troubling is his evidence that after this accidental thrust into the anus, Ms. J.H. began to yell and scream at him to leave. He made no attempt to question her as to what the issue was, to apologize, to discuss the situation, to clarify. No, he immediately jumps up, scurries about for socks and leaves. Almost immediately thereafter he texts her and apologizes, without asking what the issue was, I find because he knew full well what the issue was. When she advised that she went to hospital and required stitches, again he doesn’t challenge her, question, or deny; he simply apologizes.

[20] When a few days later Ms. J.H. sent him a text clearly stating that he had raped her, again he does not challenge her, question her, or deny the allegation, he simply apologizes and states that he “didn’t mean to FORCE his way into her ass.”

[21] At no time did Mr. N.J. seek the consent of Ms. J.H.. His determination of the issue was based upon what he believed were her actions expressing consent. I reject his evidence in this respect and specifically that Ms. J.H. said:

(1) You wish you could get this; or,

(2) Fuck me just like that.

[22] Each of those comments are at great odds to her expression of pain and discomfort and the need to ask him not to rock her back and forth when simply hugging.

[23] Mr. N.J.s evidence has internal inconsistencies. For example, he claimed to know about the back injury and pain, to care about Ms. J.H. and her well being, and yet he described that she told him she was uncomfortable and told her to ‘wait a minute or wait a second’ – this in fact corroborating her evidence. His evidence was that knowing that she was in pain, uncomfortable, he proceeded nonetheless in order to satisfy his own needs.

Analysis of the Credibility and Reliability of the Complainant’s Evidence

[24] There are some troubling issues with Ms. J.H. evidence, in particular:

(1) The discrepancies between her evidence and the nurse practitioner; however, the NP’s evidence is that she never made a note of the injuries, not that the injuries were not seen, nor that the injuries did not or could not have occurred. Corroborative is the evidence that Ms. J.H. did report the assault to the NP, well in advance of reporting it to the police.

(2) That she lied to Mr. N.J. about attending the hospital and requiring stitches; however, I accept her explanation that she wanted him to know how serious the situation was.

[25] I am not troubled by the actions of Ms. J.H. post incident. The case law is clear on this point. Each complainant, each victim, will respond and react to the trauma of sexual assault in a manner that is appropriate to the individual. There is no wrong or right way to respond. See R. v. A.(J) 2010 ONCA 491 and R. v. J.J.R.D. (2006), O.J. No. 4749

[26] Overall, I found her evidence to be clear, concise, and cogent. Her version was logical and plausible. She described repeatedly telling Mr. N.J. that she was suffering from significant back injury and wanted to engage in nothing more than cuddling. She told him over and over that she was hurt; over and over that she did not want to engage in sexual activity.

[27] Her evidence, although not required, is corroborated by the evidence of the nurse practitioner and the text message exchanges.

Conclusion

[28] There is nothing in Mr. N.J.’s evidence that raises a reasonable doubt about the veracity of Ms. J.H. evidence. Her evidence establishes the Crown’s case beyond a reasonable doubt and a conviction will register.

Released: September 6, 2023. Signed: Justice Angela L. McLeod