ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)422/10
DATE: 20120405
B E T W E E N:
HER MAJESTY THE QUEEN
E. Norman, for the Crown
- and -
S.S.
P. Hiebert, for the Defendant
HEARD: January 23, 25, 26, 27, February 1, 2, 3 and 6, 2012
REASONS FOR JUDGMENT
Fragomeni J.
[ 1 ] The accused, S.S., is charged with the following counts:
That he, on or about the 26 th day of June, in the year 2009, at the City of Brampton, in the Central West Region, did unlawfully commit an assault on V.S., contrary to section 266 of the Criminal Code of Canada .
That he, on or about the 26 th day of June, in the year 2009, at the City of Brampton, in the Central West Region, did unlawfully commit a sexual assault on V.S., contrary to section 271 of the Criminal Code of Canada .
[ 2 ] The trial in this matter before me, sitting without a jury, took place over the following days: January 23, 25, 26, 27, February 1, 2, 3, and 6, 2012.
[ 3 ] The main issue in this case with respect to the allegation of sexual assault was that of consent. With respect to the assault charge, the defence position was one of self-defence.
TRIAL EVIDENCE
Complainant V.S.
Examination-in-chief
[ 4 ] V.S. is now 23 years of age. She met the accused, S.S. in May 2008 when they were both working at Montana’s restaurant. They began a dating relationship in October 2008. V.S. described the relationship as heavy and passionate. It was good and bad but they, for the most part, got along.
Re: The Events up to and Including the June 26, 2009 Incident
[ 5 ] V.S. stated that at or about the time of this incident, in her mind they had broken up but S.S. was trying to fix that and wanted to resume the relationship.
[ 6 ] On Friday June 26, V.S. was working at Montana’s as a line cook. Her shift was from 6 p.m. to 10 p.m. A co-worker told her S.S. was there. V.S. was annoyed at this because he had showed up without telling her.
[ 7 ] V.S. spoke to S.S. and S.S. was talking to her about getting back together and how he would make things better. His voice sounded sincere.
[ 8 ] After her shift V.S. left work with S.S.. S.S. was still talking and she was trying to hear him out. They took the bus to the Bramalea City Centre and arrived there at 11:47 p.m. After getting off that bus she had to transfer to another bus to get home. When they got off the bus S.S. was holding her back pack. V.S. was trying to get her backpack so she could run to get the other bus. She missed the bus and blamed him for missing the bus.
[ 9 ] S.S. refused to give her bag back. As she reached for it he kept slapping her hands away. V.S. now just wanted her bag and she just wanted to go home. In her anger she slapped S.S. across the face with her right hand but the slap was not that hard. S.S. was, as she said, pushing her buttons and after she slapped him, S.S. said to her:
I can’t believe you did that. If you’re bad you’ll do it again.
[ 10 ] V.S. then hit him again across the face with her right hand.
[ 11 ] V.S. wanted her bag back as she had her wallet and work clothes in it.
[ 12 ] After being slapped across the face twice, S.S. became angry. He dropped the bag and grabbed V.S.’s arms with both hands and pushed her to the ground. Her left side hit the ground. V.S. tried to get up and he pushed her back down. S.S. then started kicking her. V.S. rolled over and he was kicking her back. She then sat up trying to get up and as she did so she grabbed his gold chain. S.S. then wrapped his two hands around her neck trying to choke her. In response to this she twisted his chain around his neck. He told her to let go and she said not until you let go of my neck. The chain broke and he became very angry and called her very derogatory names. He threatened to post naked and racy pictures of her on Facebook to show she was a “whore”. S.S. had her password for her Facebook account. She had given him her password so he could check and confirm that she was not talking to other guys.
[ 13 ] Once this threat of posting Facebook pictures was made V.S. started crying and said, “No, no, no. I’ll do anything for you not to post those pictures.”
[ 14 ] S.S. then brought up the idea of having sex even though she had not insinuated anything about having sex. But S.S. insisted that they have sex, “right here, right now”.
[ 15 ] V.S. did not want to have sex with S.S. at that time but she did not communicate that to him.
[ 16 ] S.S. then took her to a bush area near the bus terminal. She was crying heavily and not sure what she was saying to him. She went with him because she did not want those pictures of her posted on Facebook.
[ 17 ] S.S. told her to pull her pants down. At this time V.S. realized that she had dropped her cell phone as it was not in her right pocket as usual. V.S. became more upset and started looking for it.
[ 18 ] After refreshing her memory from her videotaped statement to the police, V.S. corrected herself and stated that she noticed her phone missing when S.S. was bringing her across the street toward the bush area. He was holding her hand at this time.
[ 19 ] After refreshing her memory again, V.S. stated that S.S. said to her:
I’ll help you find you’re phone if you have sex with me.
[ 20 ] When asked by the Crown if she wanted to have sex with S.S., V.S. indicated: “she would do anything to get home”.
[ 21 ] Again after refreshing her memory, V.S. stated that S.S. said, “I’ll help you [find your phone] if you have sex with me” and V.S. said, “fine”. When asked by the Crown why she said fine, V.S. responded, “I wanted my phone”. She truly did not, however, want to have sex with S.S.
[ 22 ] In describing the sexual assault, V.S. said this: S.S. told her to pull down her pants and bend over; she was not feeling anything – she was just there; she pulled her pants down to her knees; S.S. was behind and told her to put his penis inside her vagina; during this episode she said nothing.
[ 23 ] After refreshing her memory again from the videotaped statement given to the police, V.S. corrected herself and testified that she did say something. She told him, “No, I don’t want to do this anymore.” The reason she did have sex with him was because she wanted her phone and she wanted to go home.
[ 24 ] After he was having sex with her for about a minute, she told him it has to stop. She tried to straighten up but he bent her over again. After two minutes he stopped.
[ 25 ] After refreshing her memory again V.S. testified that she did tell S.S. to stop it three times.
[ 26 ] V.S. ultimately never did find her cell phone. V.S. took a taxi home.
[ 27 ] The next morning V.S. and S.S. met up at the Bramalea City Centre early to look for her cell phone.
[ 28 ] That morning she also went to the doctor as her back and side were hurting. During the altercation S.S. had also bent her finger. She told her doctor she had fallen down some stairs. She made no mention of the sexual assault as she was ashamed at what happened.
[ 29 ] While they were looking for her phone, that morning S.S. tried to hug her but she pushed him away. S.S. told her he was sorry and he would make it up to her. After they found her phone, she went home.
[ 30 ] V.S. cannot recall seeing S.S. again after that Saturday June 27 when they went back to find her phone.
[ 31 ] After this incident S.S. texted V.S. Essentially he was still apologizing, saying he would make it up to her.
[ 32 ] On one occasion he texted her to come outside as he was near her house at the end of the street. S.S. wanted to talk to her and he wanted to make things right again. V.S.’s friend T.G. walked by and saw the two of them. T.G. eventually left with V.S. and went to V.S.’s house. S.S. attended at the house. He was still trying to plead his case but to no avail. V.S. gave S.S. his cell phone, as it was his, and he left. In describing T.G.’s relationship with S.S., V.S. testified that T.G. hates S.S.
[ 33 ] On July 21, 2009 V.S. gave a videotaped statement to the police.
[ 34 ] On August 31, 2009, V.S. wrote a letter to the Crown with respect to dropping the charges against S.S. The letter states this, in part:
Hello my name is V.S. I am writing to you today to let you know for the past couple week I have been trying to get help with dropping the charges that I have pressed against S.S.
At the time that I had went to press charges against S.S. I was angry, frustrated and stressed out due to personal issues between the two of us. When I had calmed down and did a lot of thinking I realized that this was very serious and that I could not go through with it any more. Because it not fair for anyone to get in trouble with the law when they never did nothing wrong.
Honestly I can’t go through with this any more and make this situation worse than it already is.
[ 35 ] After this letter was provided to the Crown, V.S. eventually met with the officer again. At that interview the police constable again reviewed with her the consequences of not telling the truth and making a false allegation.
[ 36 ] After V.S. wrote the letter to the Crown, matters with S.S. got progressively worse so when she met with the officer she reverted back to her original complaint and resiled from the position she set out in the letter to the Crown to drop the charges.
(Document continues with the remainder of the judgment exactly as provided in the source.)
Fragomeni J.
Released: April 5, 2012
COURT FILE NO.: CRIMJ(P)422/10
DATE: 20120405
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – S.S. REASONS FOR JUDGMENT Fragomeni J.
Released: April 5, 2012