ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMNJ(P) 712/10
DATE: 20120301
B E T W E E N:
HER MAJESTY THE QUEEN
A. A. Falls, for the Crown
- and -
WILLIAM WYLIE
R. Covre, for the Defence
HEARD: October 17-20, 2011 and January 13, 2012
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way.
JUDGMENT
HILL J.
INTRODUCTION
[ 1 ] William Wylie pleaded not guilty to committing three offences against C.B. (C.B.) – sexual assault, assault, and threatening bodily harm. The accused pleaded guilty at the outset of trial to wilfully attempting to obstruct the course of justice in a judicial proceeding by instructing C.B. to write a letter to the Crown Attorney to recant her evidence.
FACTUAL OVERVIEW
Background
[ 2 ] The complainant and the accused met in February 2008 according to C.B. or in 2005 on the accused’s evidence. William Wylie was about ten years younger than C.B. A boyfriend/girlfriend relationship developed. They saw each other nearly daily.
[ 3 ] Most of the couple’s time was spent at the accused’s residence in Mississauga where he resided with his parents and brother. The complainant often took her 15-year-old daughter, K., to the home. C.B. got along well with the accused’s parents.
[ 4 ] The relationship was an “on-and-off-again” relationship. It was a “tumultuous” relationship. There were many arguments with frequent break-ups, perhaps as many as forty. On C.B.’s evidence, several times she was threatened by the accused. Separations lasted a couple of days to one lasting about three months. To C.B.’s recall, reconciliation would occur following phonecalls or after visits from the accused or his parents. Mr. Wylie recalled break-ups every couple of weeks. The longest period of separation followed the complainant learning that he had had an affair, a separation which lasted several months. The accused saw himself as quite persistent in pursuing reconciliation.
[ 5 ] C.B. testified that the accused and K. engaged in rough-housing including wrestling and play-fighting. Mr. Wylie saw K. as a tom-boy. They played sports and engaged in rough-housing. It could become pretty intense. According to C.B., the accused liked to watch action and horror movies. At times, he would repeat lines from movies thinking it was funny. On the complainant’s evidence, she did not involve herself in such activity other than some “tickle fights” but nothing violent. The accused was known to joke around a lot. On occasion, he took jokes too far.
[ 6 ] She viewed the accused as having a quirkiness about him. He had a persistent personality and a somewhat warped sense of humour. C.B. knew that the accused was receiving some cognitive behavioural therapy. At times, the accused was upset or depressed. C.B. had a facial deformity. She considered that they both had disabilities. Mr. Wylie agreed that he had a persistent personality.
The Assault Allegation
[ 7 ] C.B. testified that during the relationship the accused put his hand on her neck several times. On one occasion in May of 2008 in the accused’s bedroom there was an incident. The complainant informed the court, “I really don’t remember much of the details”. The accused and K. were rough-housing and play-fighting with foam swords. Sometimes the accused took play-fighting a little too far. At a point, the accused used his open right hand to push her backward by the neck restraining her against the closet. She could not recall whether she said anything. She did not consent to being touched in this manner. K. came over and said, “Let go of her”. The accused did. The episode lasted a few seconds.
[ 8 ] Mr. Wylie denied the assault described by C.B. At times, he rough-housed with both K. and the complainant. He did play-fight with K. using foam swords. He never lost control and seized C.B. by the throat.
The Threatening Allegation
[ 9 ] C.B. testified that at a point about three quarters of the way through the relationship in the guest bedroom of his residence when she lay on her back on the bed the accused squatted over her and said, “It would only take a second, I’d snap your neck, it would only take a second”. They were alone in the home. She felt intimidated. The complainant had no recall as to what they had been doing at the time. She could not recall precisely when the incident occurred.
[ 10 ] Mr. Wylie testified that he loved C.B. and at no time threatened her. He did not do things to scare C.B.
The Sexual Assault Allegation
[ 11 ] In July of 2009, C.B. travelled to Victoria to visit family. She stayed a few weeks. While away, the accused phoned her and under questioning disclosed that he had been involved with a former girlfriend. There had been a prior instance of infidelity. On learning of the latest indiscretion, another break-up began. C.B. returned home in late August.
[ 12 ] The complainant testified that on Sunday, September 6, 2009 she resided in a 2-bedroom Mississauga apartment. The accused phoned wanting to get back together. He was desperate to see her. He was alone as his family was away. He claimed to be suicidal and spoke of hanging himself in the basement of his home.
[ 13 ] The accused testified that he was anxious to reconcile from the break-up. He felt remorseful. He was upset and depressed as he feared things were over between them. His family was away. He phoned the complainant asking to come to her apartment. He wanted to attempt a reconciliation.
[ 14 ] According to the accused, C.B. was still “really mad”. But he felt that she still cared for him. He wanted C.B. to invite him over. He knew he had messed up and things were “really bad”. However, because he had succeeded in getting C.B. to reconcile in the past:
...there was a bit of logic to my gut feeling because just scientifically, you know what, it’s been proven before, it’s worked before, you know what I mean, so.
[ 15 ] He was depressed and had some suicidal feelings. He told C.B. this to get his foot “in the door” – to get an invitation to her apartment:
I was psychologically manipulative to her in that regard, I was very abusive that way, I’ll admit to that, and I kind of played off her inner love for me, for her inner love for me so to get myself in the door....
[ 16 ] In the circumstances, C.B. invited the accused to her apartment to watch a movie with her and K.. The accused arrived sometime around 11:00 p.m. There was no arrangement for the accused to stay over. While the accused viewed C.B. as “very upset” and angry and not really interested in reconciliation, from knowing her he “sensed” a “subtle openness” like “a receptiveness”.
[ 17 ] The three watched a movie together. Asked an open-ended question in-chief, “what happened that evening?”, Mr. Wylie stated that C.B. was very upset and did not really want to reconcile but eventually permitted him to “sit beside her” on the couch to watch a movie but at first did not want him “to lay down by her”. The accused gave this evidence:
Q. And the whole time that you’re there, at least initially, she’s expressing to you how angry she is with you...
A. Yes, she’s – she’s very angry, you know, she saying, “You don’t love me,” she’s calling me names, you know.
Q. Okay. And the names she’s calling you, I think you told us before is asshole and...
A. Things like that, yeah.
Q. ...and some other things?
A. Yeah.
Q. Okay. That’s expressing to you that she’s not happy, she doesn’t want to be near you?
A. Yeah.
Only in cross-examination, did the accused state that they laid on the couch and kissed a bit.
[ 18 ] After the movie ended, the accused went to the complainant’s bedroom and went to sleep. On Mr. Wylie’s evidence, whenever he was there late, he stayed over. On September 6/7, it was therefore for an “unsaid thing”. The accused described himself as feeling tired. He expected C.B. would follow him to the bedroom. She did not. He fell asleep.
[ 19 ] C.B. lay down on the livingroom couch. She believes she did not fall asleep that night. Falling asleep had been an issue for her. She went out at one point to buy cigarettes.
[ 20 ] C.B. informed the court that in September 2009 she was taking an anti-depressant and was also taking Gravol to sleep. According to Mr. Wylie, the complainant was taking Percocets and had not been sleeping.
[ 21 ] C.B. testified that after the accused awoke the next morning, Monday, September 7, he did not leave the apartment.
... (content continues exactly as in the original decision) ...
CONCLUSION
[ 118 ] The accused is Guilty of count #’s 1 and 4 in the indictment. The accused is found Not Guilty of count #’s 2 and 3.
HILL J.
Released: March 1, 2012
COURT FILE NO.: CRIMNJ(P) 712/10
DATE: 20120301
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – WILLIAM WYLIE JUDGMENT HILL J.
Released: March 1, 2012