COURT FILE NO.: 40000722-10
DATE: 20120525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GEORGE WASHINGTON MURRAY
Defendant
Barry Stagg, for the Crown
Lesley Burke, for the Defendant
HEARD: May 14 – 18, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
SPIES J.
Introduction and Issues
[1] Mr. Murray is charged with sexual assault, unlawful confinement, robbery, assault causing bodily harm and aggravated assault, all in connection with the complainant, L.C., now known as L.Z. It is alleged that these offences occurred during the morning of August 3, 2009 in the City of Toronto. Mr. Murray re-elected trial by judge alone and pleaded not guilty to all of the charges.
[2] At the material time the complainant was a sex trade worker, offering sex for money, and she was addicted to crack cocaine. The sexual assault; count 1, is alleged to have occurred in a house that is owned by Mr. Murray and is located on the corner of Dupont Street and Edwin Avenue. The complainant alleges that Mr. Murray had anal intercourse with her without her consent. Although Mr. Murray admitted picking the complainant up while driving his cargo van on Queen Street near Sorauren Avenue, and to taking her to his house on Dupont Street, he denied that this was for the purpose of sex for money and denied all of the complainant’s allegations concerning the alleged assault.
[3] The charge of unlawful confinement; count 2, is alleged to have occurred both at the house on Dupont Street and in Mr. Murray’s cargo van while he was driving the complainant from the Dupont Street house back to Queen and Sorauren. The alleged robbery; count 3, is also alleged to have occurred in the van. Again, the complainant’s allegations in connection with both of these charges are denied by Mr. Murray.
[4] As I will come to, a determination of these three charges depends to a large extent on my assessment of the evidence of the complainant and Mr. Murray.
[5] There is no dispute that as Mr. Murray approached Queen Street, the complainant got out of his van and grabbed a large quantity of keys from the dashboard. Mr. Murray stopped the van and followed her and a struggle ensued on the lawn of a home on Sorauren Avenue. This is the basis of count 4; the charge of assault causing bodily harm. The complainant alleges that Mr. Murray “beat the supreme shit” out of her and that he broke her thumb during this altercation. This is denied by Mr. Murray who alleges that he did no more than pull on a rope that was attached to the keys.
[6] After Mr. Murray got most of his keys from the complainant, he got into his van and drove away. There seems to be little doubt that as he did so he at least hit the complainant’s left arm with his driver’s door mirror and she fell to the ground. This is the basis of count 5; aggravated assault. The central issue is whether or not Mr. Murray hit the complainant with his van intentionally. Mr. Murray denied that he did so but admitted that his mirror appeared to have grazed the complainant as he pulled away.
[7] With respect to count 4, assault causing bodily harm and count 5, aggravated assault, I have the evidence of two women who were living on Sorauren Avenue, and who both came out of their homes to see what was going on when they heard a woman yelling. The evidence of these two witnesses assists in determining what happened during the course of the struggle over the keys and once Mr. Murray got back in his van and left the scene.
The Evidence and Preliminary Findings of Fact
The Evidence of the Complainant
[8] The complainant testified that she had been up for two to three days and had last used crack cocaine at about 5:00 a.m. on the morning of August 3rd. She alleges that she knew Mr. Murray and that they had engaged in sex for money on one occasion a year prior or earlier. At about 8:30 a.m. on the day in question, the complainant was looking for a date so she could get more crack cocaine. She alleges that Mr. Murray flagged her down while he was driving his cargo van on Queen Street near Sorauren Avenue. She got into the van and they negotiated a $100 fee for her to provide Mr. Murray with what she called a “half and half”; a blow job followed by vaginal intercourse. There was no discussion or agreement about anal intercourse. The complainant was very clear in her evidence that she had never engaged in anal intercourse before and would never have agreed to do so.
[9] Mr. Murray then drove the complainant to his house on Dupont Street. The complainant alleges that in a room on the third floor of that house, after Mr. Murray gave her the $100, he “turned ugly” and aggressively forced his penis into her mouth. She alleged that Mr. Murray then sexually assaulted her by first inserting an orange coloured object in her rectum, that she said looked like a big carrot with a condom on it, and after what she described as this object “popping her open”, the complainant alleges that Mr. Murray had forced anal intercourse with her, while he was holding her face down on the bed. He pinned her shoulders down to the bed with such force that she could barely breathe.
[10] The complainant testified that she was somehow able to break free from Mr. Murray, although she could not explain how, and that she then flew off the bed. She alleges that Mr. Murray then picked up what looked like half a broomstick and that it looked like he was going to hit her with it. She then grabbed her clothing and started putting on her jeans. She testified that while she was doing this, Mr. Murray put his pants on. She then ran from the room, down the stairs and out of the house onto the street. By this time she had her jeans on but not her bra or top or shoes. She ran past two old men standing on the corner and realized she had run in the wrong direction as she was back at Mr. Murray’s van. According to the complainant, Mr. Murray was right behind her and pushed her into the van through the driver’s door and into the front passenger seat. She alleges that Mr. Murray somehow restrained her in the van using the seatbelt, although it was not buckled in, and drove her back to Queen and Sorauren. Along the way, Mr. Murray slipped his hand into the right rear pocket of her jeans and took back the $100 that the complainant alleges he had given her for sex.
[11] When Mr. Murray stopped for a red light the complainant took the opportunity to escape from the van although she could not explain how she was able to get free. As she exited, she grabbed a large quantity of keys that were on the dashboard so that she could identify Mr. Murray and because he had taken her money. Mr. Murray also exited the vehicle and the complainant alleges that during the course of the struggle over the keys on the lawn, that she was hit or kicked by Mr. Murray in the head and that he broke her thumb as he tried to get his keys back.
[12] There is no dispute that Mr. Murray did get most of his keys back and got back into the van. The complainant alleges that as she got up, she was disoriented and that Mr. Murray then drove his van up onto the sidewalk and directly into her, causing a large bruise on her upper left arm, and then more bruising on her right knee when she fell to the ground.
The Evidence of Mr. Murray
[13] Mr. Murray testified and, in summary, his position is as follows. He denied ever having sex with the complainant or paying to have sex with her. He admitted that he had known the complainant for a few years, and that on the second occasion when he met her, he became aware of the fact that she was a sex trade worker and had a drug addiction problem. He described another occasion when he had agreed to help her move using his van.
[14] Mr. Murray admitted picking the complainant up in his cargo van at about 8:30 a.m. on August 3rd, at Queen and Sorauren. He was driving to his home on Jane Street after his night job and saw the complainant frantically waving him down. She told him that something was happening with her and she asked him to get her out of the area right away. Mr. Murray agreed to drive her up to the Dupont area as he also needed to go to his house on Dupont Street to get some material for his restaurant. Once they arrived, the complainant asked to use the washroom and went upstairs; Mr. Murray assumed she had gone up to the second floor washroom. He had a room that he rented out to a tenant named Rory on the third floor. When the complainant did not come back down Mr. Murray went searching for her and found her in Rory’s room on the third floor smoking a cigarette. He told her that she could not be in this room as he had rented it out. She asked him if he wanted something and he looked at her trying to make sense of what was happening, given the developments to this point. He told her that she had to leave. She told him that she wouldn’t leave without getting some money first, that she couldn’t go back “down there” without some money and that Mr. Murray didn’t know what “he’s” going to do to her. Mr. Murray responded that that wasn’t his problem and that she didn’t have to go back there. She insisted she needed money if she was going to leave, asking first for $40, then $20. Mr. Murray kept refusing and insisting that she leave. According to Mr. Murray, the complainant then told him that he was going to have to drive her back downtown. He refused and eventually she got up and walked out.
[15] Mr. Murray then checked out the roommate’s room quickly to see if there was anything obvious that the complainant had taken, went back to his office on the first floor and then put on his chef’s jacket and went to his van intending to drive straight to his restaurant. As he left the house, he also saw the two men on the corner that the complainant saw. When Mr. Murray got to his van he saw the complainant sitting in the van. This shocked him and at this point he told the complainant that he would take her back downtown. On the way down, the complainant said things that made Mr. Murray think she was going to have someone beat him up.
[16] Once Mr. Murray reached Queen Street, he pulled over and eventually the complainant went to leave the van. As she did, she grabbed his work keys from the dashboard. These were about thirty keys to the various businesses which he cleaned at night. Mr. Murray testified that he hadn’t realized that the van was not in park and so as he opened the door it moved up onto the sidewalk. He then put the van in park, left it running and went after the complainant yelling at her to give him his keys. There was a rope on the keys as he wore them around his neck at work and he started pulling on that. The complainant started to yell for help and was yelling that he was trying to hurt her, that he was attacking her and trying to kill her. Meanwhile, Mr. Murray was tugging on the rope and demanding that the complainant return the keys to him while she had the keys in her hands held up against her chest. The complainant fell to her knees while Mr. Murray was holding the rope but he denied punching her or kicking her or even trying to kick her. According to Mr. Murray, the complainant was pulling down on his track pants. He was very exposed at this point, which I presume meant that his pants were pulled down somewhat. The eyewitnesses were not asked about this but the complainant admitted that she was pulling Mr. Murray’s pants down during this struggle.
[17] Once Mr. Murray got his keys back, he went back to the van. By this point there was a small crowd of people watching. The complainant was still yelling, making the various allegations already referred to, and Mr. Murray was yelling that she had stolen his keys. As Mr. Murray drove away he continued on the sidewalk a bit to avoid hitting the complainant and once he passed her, he went onto the road. The complainant was standing on the street right at the driver’s door mirror and she was very close to it. Mr. Murray admitted that it might have made contact with the complainant; grazing her, because as he drove off he saw the complainant fall to the ground from his rearview mirror. He did not believe that she had fallen because he hit her given the way she had been behaving and testified that he thought she was faking it. He was not driving fast as it took some time for the van to accelerate. He denied hitting the complainant intentionally.
Examination of the complainant at Women’s College Hospital (“WCH”) and Forensic Examination of DNA
[18] The complainant was taken to WCH and was examined there by a sexual assault nurse examiner during the course of the afternoon of August 3rd. She did report penetration of her anus by, not only an object that she specified as a “carrot” but as well, Mr. Murray’s penis and presumably as a result, her rectal area was examined. The examining nurse noted “that there were no abrasions, bruising, or lacerations to the external anal region and found no blood or evidence of mucosal tears or discharge.” Ms. Burke submitted that this was at odds with the evidence of the complainant that the orange object was 12 inches long and bigger in diameter than a toonie. I do not have any medical evidence to support this submission and find that it would be speculation on my part to accept it. The nurse did note “local tenderness on digital exam”, which was presumably something reported by the complainant to the nurse when her anus was examined. Accordingly, based on this physical examination, there was no physical evidence that would corroborate the complainant’s allegations, only her report of tenderness to the nurse. The complainant alleges that this soreness lasted for three to four days.
[19] A swab of the complainant’s rectal area was processed by the Centre of Forensic Sciences. A trace amount of semen was present on the swab but Mr. Murray, who gave a consent sample of his DNA for comparison, was excluded as the donor. In any event, the complainant testified that during the course of the alleged assault Mr. Murray wore a condom. A section 276 application was granted permitting the defence to ask some limited questions as to when the complainant had had prior intercourse. She admitted that the note in the WCH records that she had had prior vaginal intercourse on July 30th, 2009 was likely correct. Although initially it was the intention of Ms. Burke, counsel for Mr. Murray, to attempt to establish that as a result of the DNA found in the rectal area, the complainant had engaged in anal intercourse prior to the day in question, thus challenging her credibility, this ultimately was not vigorously pursued. The complainant was adamant that she had never engaged in anal intercourse before and I accept that evidence. It may be that the DNA from the earlier occasion of vaginal intercourse had simply moved to her rectal area. In any event, the defence is not that the complainant consented to anal intercourse but rather that it never happened.
[20] Photos were taken by the sexual assault nurse at WCH of the complainant’s injuries on August 3rd, 2009. These do provide some assistance in determining counts 4 and 5. They show some swelling of the complainant’s left thumb, but also redness on the palm of her left hand. There is a photograph showing a splint of the complainant’s thumb and her arm bandaged up, but no evidence confirming that the thumb was broken. The complainant testified that WCH could not put a cast on and that she went to St. Joseph’s Hospital the next morning and a cast was put on that she had for eight weeks. No records from this hospital were filed.
[21] Given the photographs, I see no reason not to accept the evidence of the complainant that her thumb was in fact broken, although given my other concerns about the reliability of her evidence, I am not satisfied that it broke during the course of the altercation with Mr. Murray on the lawn. Although the complainant testified that the redness on the palm of her left hand was because of Mr. Murray pulling at her hand, this redness could also have resulted from her using this hand to break her fall. It is certainly possible that the complainant’s thumb broke when she fell down after she was hit by the van.
[22] The photographs do show a large bruise on the complainant’s upper left arm. This appears to be consistent with an injury caused by the mirror of the van hitting the complainant’s arm. There is also a hole in the left knee of the complainant’s jeans which appears to be consistent with a photograph showing a bruise on her left knee. It seems likely that this bruise resulted from the complainant’s fall to the street after she was hit. There is also a bruise on the right knee which could also be consistent with a fall to the street after being hit by the van.
[23] There are what appear to be small cuts in numerous places on the complainant’s right arm, from the elbow to the wrist. It is not clear what caused these cuts. The complainant speculated that they were caused when Mr. Murray pinned her down on the bed or pulled her into the van. Ms. Gibson, one of the eye witnesses, testified that the complainant fell onto the pavement on her right side and so it these cuts could certainly have resulted from the complainant falling to the street after being hit by the van. They are not consistent with any of the evidence I have heard about what happened during the struggle on the lawn.
Evidence of Dena Warman
Ms. Dena Warman heard screaming and got dressed to go outside to see what was going on. She stood on her stoop and watched a struggle between what was clearly the complainant and Mr. Murray across the street on a lawn at number 18 Sorauren; she was three houses away, a distance she estimated of about 40 to 60 feet. She observed that the complainant was on the ground in the fetal position, on her right side, clutching something against her chest. She heard Mr. Murray, who was standing, say that he wanted his keys. He was being “very physical” and the complainant was protecting the keys and herself. Ms. Warman explained that by being very physical she meant that Mr. Murray was being very aggressive and punching but mostly shoving at the top of the complainant’s left shoulder in order to get her to open up from the fetal position. She wasn’t sure if the complainant was kicking with her feet, but she kept her arms close to her chest. As far as she could tell Mr. Murray’s goal was to get the keys. At one point it looked like Mr. Murray was going to give the complainant a kick but he then saw Ms. Warman and his motion changed and he headed to the van. The complainant followed him to the van saying “I want my money”. She may have heard Mr. Murray say that he wanted his keys. Ms. Warman did not testify about any further struggle between the complainant and Mr. Murray once he headed back to the van.
[24] It is important to consider what vantage point Ms. Warman had for the observations that she made. She testified that the complainant was facing north on the grass and Mr. Murray was facing south and said that she would not have had “that view” if they were facing the other direction. It was not clear what Ms. Warman meant by this or exactly what angle she was making her observations from relative to the complainant and Mr. Murray. Given that she was on the opposite side of the street, three houses away, she necessarily would have been looking at them from some angle.
[25] According to Ms. Warman, once in the van, Mr. Murray accelerated quickly although she also said that it was not extremely quick as it was just beginning to move and it was a work van. In any event the van hit the complainant and she spun around falling to the ground facing the opposite direction that she had been and into a fetal position. The van had been positioned across the sidewalk and so it did have to turn to get off the sidewalk before going straight. Ms. Warman thought it was likely when the van was turning to get out that the complainant was hit and that at this point the complainant had probably just stepped off the sidewalk to get to the driver’s side. Ms. Warman believed that the van’s front wheel-well on the driver’s side hit the complainant and caused her to spin around and fall down.
Evidence of Alison Gibson
[26] Ms. Alison Gibson heard the screaming while she was still in bed. She got dressed to go outside and watched from about three or four houses away; on her evidence she was behind the van and to the left of it. She estimated the distance at 30 to 40 feet. She could see through the front window and windshield of the van that Mr. Murray and the complainant were both standing and pushing and shoving each other. Ms. Gibson did not see what happened on the neighbour’s lawn. I presume that by the time she got outside the complainant had already gotten up from the lawn. She observed that the complainant was aggressive and was not running away; she said that they were “together in a scuffle”.
[27] Ms. Gibson then observed Mr. Murray come around the van and it looked like he was trying to get to the driver’s door. She said to the woman “Are you OK – is there a problem here?” but as she said this she was looking at Mr. Murray who responded firmly “there’s no problem here”. The complainant said to call the police and get his licence plate number. Ms. Gibson testified that the complainant went to the front of the van and that Mr. Murray got into the van and accelerated, not lightly, to “push her out of the way”. It was not clear what she meant by this as the evidence suggests that Mr. Murray did not hit the complainant with the front of his van. Ms. Gibson testified that Mr. Murray hit the complainant with the side view mirror and she lost her balance but did not fall. The complainant then went in front of the van again and, according to Ms. Gibson, Mr. Murray “stepped on it” and hit the complainant with the van itself and knocked her down to the street and he then drove off. Although Ms. Gibson stated that Mr. Murray did not run the complainant over, he did hit her left side with the left side of his van. There was more of an impact this time. According to Ms. Gibson, Mr. Murray was parked at a 45 degree angle facing west into the sidewalk and would have had to turn slightly to get out of the spot he was in. She testified that Mr. Murray could have avoided the complainant by not accelerating.
Analysis
R. v. W.D.
[28] Mr. Murray testified and so the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1] apply. I must acquit Mr. Murray if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^2]
[29] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. Murray, I am entitled to consider it in the context of all of the other evidence, including the evidence of the complainant and in so doing, compare the evidence of each of them.[^3] However, I must remind myself that this is not a credibility contest.[^4] W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of the complainant to that of Mr. Murray.[^5] As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.[^6]
[30] I remind myself that each allegation is a separate charge and that Mr. Murray is presumed innocent of each charge. It was not argued that I could rely on the evidence in support of one charge as similar fact evidence to assist in proving another. Accordingly, I must consider each charge separately and make my decision on each charge only on the basis of the evidence that relates to that charge. I must be satisfied beyond a reasonable doubt on all of the evidence that Mr. Murray committed one or more of these offences before I find him guilty.
Credibility Assessments
[31] Turning to the credibility of Mr. Murray and the complainant, both have minor criminal records, but I found that neither had any real impact on credibility. Mr. Murray gave his evidence in a calm and straightforward way and his demeanour did not change during cross-examination. He remained firm in his denials of the various allegations made by the complainant.
[32] Mr. Stagg suggested that Mr. Murray’s “metamorphosis” from someone who wanted to help the complainant to someone who he alleges brutally attacked her, was incomprehensible. I do not accept this submission. Essentially it was his position that it was incredible that Mr. Murray would have gone out of his way to help the complainant in the manner that he testified to. Although the fact that Mr. Murray testified that he had done some ministry work through his church as a volunteer does not make it less likely that he would commit these kinds of offences, his evidence, if accepted, does provide some explanation for why he would pick up the complainant and take her to his house on Dupont Street. This evidence is corroborated by Mr. Murray’s evidence that he offered to help the complainant move on an earlier occasion and in fact had attended at her apartment on one occasion to actually do so. This evidence was corroborated to some extent by the evidence of the complainant. Although at trial she denied asking for Mr. Murray’s help to move, at the preliminary inquiry she testified that she believed she did ask him. She had no recollection of this at trial, but did testify that if she said it at the preliminary inquiry it must be true. On her evidence, if she had only been with Mr. Murray once, for a paid sexual encounter, it does not make much sense that he would offer to assist helping her to move with his van.
[33] Mr. Stagg also made much of the fact that helping the complainant, as Mr. Murray testified to, took him out of his way given he was heading to his home on Jane Street. I accept that submission, but given Mr. Murray’s evidence that he had materials at the Dupont house that he needed for his restaurant in any event, it would not have been such an imposition on his time to drop the complainant off in that neighborhood. His evidence was plausible. On the whole I found that his evidence as to why he picked up the complainant and brought her to the Dupont Street house could be true. Furthermore, his account of what happened after the complainant left the Dupont Street house, how she got into his van and what happened in the van made much more sense than the complainant’s version of events.
[34] As for what happened during the struggle over the keys, I do believe Mr. Murray downplayed his conduct and in this regard I have considered the evidence of the eyewitnesses to be more reliable. Mr. Murray disputed the evidence of Ms. Warman that he was about to kick the complainant until he saw her, and in this regard I prefer Ms. Warman’s evidence, including her evidence that he was making physical contact with the complainant’s left shoulder. This does lend some support to the Crown’s case that Mr. Murray was using excessive force. Mr. Murray had no recall of Ms. Gibson asking the complainant if everything was OK and he denied he responded to her as she alleged. In this regard I prefer the evidence of Ms. Gibson. However, as Mr. Stagg submitted in connection with the complainant’s evidence, the evidence of the parties may have been impacted by the highly emotional nature of the dispute. As for Mr. Murray’s evidence that he did not deliberately hit the complainant with his van, I will consider that in the context of the other evidence.
[35] Mr. Stagg also relied on the fact that Mr. Murray did not stay to speak to police after he hit the complainant and submitted that by fleeing the scene he demonstrated a guilty mind. Mr. Murray gave an explanation for this. Essentially he was concerned, given what the complainant had been yelling, given that she was an older white woman, that he was a black man, and given the neighbourhood and the crowd that had gathered, that his explanation of what happened would not be accepted. He did not say that he believed the crowd to be racist but he was surprised that no one was assisting and that the people in the crowd seemed unwilling to help. He found it to be a scary situation. Mr. Murray testified that he was thinking about what he should do and tried all afternoon to reach certain police officers from 13 Division, who he knew from his restaurant. He believed that they might at least hear him out but denied that he felt they would give him a break. He wanted to speak to them about what happened and seek their advice. These officers were not in. There is no dispute that during the evening of August 3rd, Mr. Murray went to 13 Division even though he had not been able to reach the officers that he knew. The officer at the station had no information yet but an hour later, an officer called the Division and spoke to Mr. Murray and shortly after he was told he was under arrest for these charges. I accept this explanation from Mr. Murray. It may be that he also panicked a bit at the time as he left Queen and Sorauren, but I would not conclude that his departure from the scene constituted evidence of a consciousness of guilt or is otherwise relevant. He clearly did not try to avoid speaking to police. Mr. Murray said that he knew he needed to speak to police as he had been involved in a fight with the complainant. Furthermore, I would not conclude that he was trying to get some sort of preferred treatment by going to the officers at 13 Division. It is understandable that he would want to speak to officers that he knew. For these reasons I did not accept Mr. Stagg’s submissions in this regard.
[36] As for the credibility of the complainant, she was very frank in admitting that her cocaine addiction had had a terrible effect on her memory although she testified she would never forget the anal rape. I do not discount the credibility of the complainant generally, because of her livelihood or for that matter because she had been addicted to crack cocaine for some time. Fortunately she has been clean for eight months now and is getting the help she needs. It is, however, significant that on the day in question the complainant had been on a “run” of taking crack cocaine; she was not sure when it had started; she had not slept in at least two days and had taken crack cocaine at five o’clock on the morning of August 3rd. This may impact on the reliability of her evidence.
[37] The complainant agreed with Ms. Burke that her memory would have been clearer when she gave her statement to police on the day of the alleged assaults and even at the time of the preliminary inquiry in September 2010. Later however, to explain an inconsistency in her evidence she testified that she was on pain medication when she gave her statement to police, implying that this could have affected what she had said. The complainant clearly became quite frustrated when Ms. Burke persisted in putting numerous inconsistencies to her between her evidence in her statement to police or at the preliminary inquiry and her evidence at trial. My sense was that she was trying to cooperate with Ms. Burke, and was not being deliberately evasive. It appeared that she clearly did not have as much memory of the details of events as she possibly had earlier. That said, there were some occasions where it appeared that she attempted to explain inconsistencies by poor memory. She said on more than one occasion that she had suppressed these memories and might have some confusion in bringing them back to the surface. I accept that this could be true, certainly with respect to some of the peripheral details. It is also true that with respect to the core allegations, particularly with respect to the alleged sexual assault, that the complainant was consistent and firm in her evidence. There were, however, a number of aspects of her evidence that seemed implausible, giving rise to concerns about the reliability of her evidence if not her credibility, which I will come to.
[38] There is no evidence of any reason why the complainant might have made up these allegations. Although the complainant denied this, Mr. Murray testified that on one prior occasion when he saw her on Queen Street, she told him that she was suffering from cancer and she asked him for change. If this is true, there is no dispute that the complainant was never suffering from cancer and this may have been an occasion where she was trying to find money to support her crack cocaine addiction. Certainly on the morning in question, the complainant testified that she wanted money to buy crack cocaine which could be consistent with the version of events provided by Mr. Murray. However, a motive to try to get money from Mr. Murray without sex was not put to the complainant, although I am certain she would have denied it. In any event, there is no obligation on Mr. Murray to explain why the complainant might be lying or provide a motive for her to fabricate her evidence. Although the absence of a motive to lie does not mean that the complainant’s evidence is true, it is a factor that I may consider.[^7]
[39] As for Ms. Warman and Ms. Gibson, I found them both to be credible witnesses. Although they were both sympathetic to the complainant, I have no reason to believe that they were not forthright in giving their evidence. While waiting for the police Ms. Warman admitted that she discussed the events with the complainant, that she knew the complainant was involved in the sex trade. I understand that Ms. Gibson was also part of this conversation. Ms. Warman testified that she felt the complainant would not get fair representation as a sex trade worker and that she wanted to be a “second voice” as she felt badly for her. I understood her to simply be saying that she felt it important to come forward as she was a witness. I have considered whether the reliability of the evidence of these witnesses was impacted by the fact that they spoke to the complainant and learned what her allegations against Mr. Murray were, while waiting for police to arrive. Given that they testified to what they observed and that this evidence was to some extent at odds with the evidence of the complainant, I did not find this a concern. However, I must also consider the fact that they made their observations from different vantage points and at some distance. They would have had an opportunity to see generally what was going on, but depending on the angle, and given the distance they were from the altercations, they may not have been able to reliably observe some of what was happening.
Conclusion - Counts 1, 2 and 3
[40] I have concluded that none of the records from WCH or the DNA evidence assists in determining the charge of sexual assault. Accordingly, a determination of whether or not the complainant was sexually assaulted as she alleges, and unlawfully confined both in the room where she alleges the assault occurred and in the van on the way back downtown, and whether or not Mr. Murray robbed the complainant, depends upon my determination of the credibility and the reliability of the evidence of the complainant and Mr. Murray.
[41] I have already considered Mr. Murray’s credibility. I have found that his explanation for how it was that he was alone with the complainant in the bedroom on the third floor of his house on Dupont Street could reasonably be true. Certainly Mr. Murray’s account of the events after the complainant left the bedroom makes a great deal more sense. Considering his evidence in the context of the evidence given by the complainant, there were a number of aspects of her evidence that seemed implausible. Those include the following:
(a) The complainant could not explain how she was suddenly able to fly off the bed during the course of the alleged sexual assault. Although it may be on her evidence that Mr. Murray suddenly decided to let her up, she testified that he then threatened to hit her with what appeared to be a broken broomstick. Furthermore, her explanation as to how she was then effectively able to take some time to put on her jeans while Mr. Murray put on his pants, and escape from the room, was not credible.
(b) The complainant’s evidence that she ran topless past two men, without stopping to ask them for help, is difficult to accept. There is as well no evidence that they made any attempt to help her or to call 911. That said, it is possible that they would simply not get involved.
(c) In chief the complainant was not able to say how the door to the van was opened when she alleges Mr. Murray pushed her in and in cross-examination she denied opening the door. When her evidence from the preliminary inquiry was put to her she admitted that she may have opened the door to the van. Although I accept that in her frantic state, the complainant may have mistakenly run in the direction of where the van was parked, clearly on her version of events, opening the door would be the last thing that she would do.
(d) The complainant testified in chief that she asked Mr. Murray, once inside the van, to take her back to Queen Street. Although this evidence is at odds with the evidence of Mr. Murray that the complainant wanted to get away from this area, it does not make sense that the complainant would ask Mr. Murray to take her anywhere.
(e) The complainant testified that somehow Mr. Murray was able to drive the van and keep her restrained with the seatbelt, even though it was not buckled in. The van is a cargo van and according to Mr. Murray there was a considerable space between the seats and so it seems this would have been difficult for Mr. Murray to do and it does not explain how the complainant was suddenly able to get free when the van stopped on Sorauren near Queen.
(f) In any event, even if Mr. Murray could have restrained the complainant as she alleges and drive the van back downtown, the complainant could not explain how while restrained in this manner she would have been able to put on her bra and top. She also testified however, that she may have put on her clothes while Mr. Murray put on his shirt and that she was not yet restrained at this time. In that event, her evidence does not explain why she did not try to exit the van.
(g) The complainant’s evidence that Mr. Murray continued to drive the van and used his right hand to pull money from her right rear jeans pant pocket, which would have been furthest away from him, while still keeping her restrained and driving, seems implausible.
(h) Although I appreciate that it is not possible to predict how someone may act after being subjected to the type of sexual assault that the complainant testified to, the fact that she grabbed Mr. Murray’s keys, knowing that he would likely come after her for them, seems to be at odds with her allegations of such a violent sexual assault.
[42] For these reasons, in light of Mr. Murray’s evidence denying these allegations, which I have found could be true, the complainant’s evidence with respect to the allegations that forms the basis of counts 1, 2 and 3 does not meet the very high onus on the Crown to prove these alleged offences beyond a reasonable doubt.
Conclusion - Count 4
[43] I turn then to count 4 and the struggle on the lawn over the keys. First of all, a legal issue arose with respect to this count. Both counsel agreed that I should consider whether the force used by Mr. Murray to obtain his keys from the complainant was justified under s. 38 of the Criminal Code and consider whether or not excessive force was used pursuant to s. 34(1) of the Code.
[44] Section 38 states as follows:
Defence of personal property
- (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the trespasser.
(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
[45] There was no dispute that the keys were personal property in the peaceable possession of Mr. Murray.
[46] It is important to note that s. 38 justifies actions against a “trespasser”. This means that s. 38 only applies if the person who has taken or is attempting to take property in the peaceable possession of the accused is a trespasser. The provision seems to contemplate the situation in which a person unlawfully enters the property of an accused for the purpose of taking the accused’s personal property.
[47] This narrow interpretation of s. 38 was adopted by the Nova Scotia Court of Appeal in R. v. Weare (1983), 56 N.S.R. (2d) 411, where Morrison J.A. held at p. 421, “If the court found that [the accused] had reasonable grounds to believe they were trespassers, then it seems to me that Section 38(1) of the Criminal Code would apply”. [Emphasis added.]
[48] The Ontario Court of Appeal has held that s. 38 is not limited to the trespass of land. In R. v. Davids, [1970] O.J. No. 805 (C.A.), the complainant took the keys of the accused’s car following an altercation between them over payment for gasoline. The accused was convicted of assaulting the complainant inside the service station room of the gas station. In commenting on the trial judge’s failure to consider s. 38 of the Criminal Code, the court held that “the case really turned on that section”. While the court did not discuss the significance of the term “trespass”, the complainant was presumably trespassing in the accused’s car when he took the accused’s keys.
[49] The question then is whether the complainant in Murray was a trespasser. “Trespasser” is not defined in the Criminal Code. It has been defined in caselaw as “the offender’s unlawful presence on property owned by another”: R. v. Girton, 2003 BCSC 1494, at para. 15. The illegality of a person’s presence on another’s property is essential to the characterization of that person as a trespasser: R. v. Ribic, 2008 ONCA 790, at para. 55 (applying s. 41 of the Criminal Code).
[50] It may be argued that the complainant was not a trespasser because she was in the accused’s van by his consent. However, as stated in R. v. Keating (1992), 117 N.S.R. (2d) 39 (C.A.):
The fact that the complainant was initially an invitee does not mean that he necessarily remained one until he left the premises. A licensee or invitee may subsequently become a trespasser by exceeding the scope of his invitation or by overstaying his welcome. [Citations omitted.]
See also R. v. Nobile (2006), 75 W.C.B. (2d) 581 (Ont. S.C.), at para. 53: “I am of the opinion that once an invitee’s purpose changes from lawful to unlawful while on the premises, they become a trespasser.”
[51] Based on this understanding of “trespasser”, the complainant became a trespasser once she took the accused’s car keys, since she exceeded the scope of her invitation to be present in the accused’s van. Since the complainant was a trespasser who had taken personal property in the peaceable possession of Mr. Murray, the actions taken by Mr. Murray may be justified under s. 38 of the Criminal Code.
[52] Section 38 creates a “cap” on the maximum amount of force that can be used to defend personal property. It clearly states that one cannot “strike” or “cause bodily harm” to the trespasser in an attempt to repossess the property. As such, an issue seems to arise as to whether any of Mr. Murray’s contact with the complainant on the lawn, including any punches or shoves to her shoulder, constituted a “strike” or caused her bodily harm.
[53] I find it unnecessary, however, to engage in an exercise of characterizing Mr. Murray’s actions as “strikes” or “not strikes”. The difficulty with such a characterization is highlighted by the fact that Parliament is currently considering a complete overhaul of the defence of property provisions in the Criminal Code.[^8]
[54] I am saved from conducting this analysis by s. 38(2), which states that a trespasser who persists in keeping personal property in the peaceable possession of a person after that person lays hands on it is deemed to commit an assault without justification or provocation on that person. This was the case here. I have no reason to doubt Mr. Murray’s evidence that he first grabbed the rope to his keys in an effort to retrieve them from the complainant. This is something that would have occurred before either of the eyewitnesses were outside and would be the obvious way for Mr. Murray to retrieve the keys. As such, the actions of Mr. Murray must be considered under s. 34(1):
Self-defence against unprovoked assault
- (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
[55] Under s. 34(1), Mr. Murray was entitled to use force against the complainant so long as he did not intend to cause death or grievous bodily harm, and the force was “no more than [was] necessary to enable him to defend himself.” This has both a subjective and an objective component. The subjective component is Mr. Murray’s perception of the situation he was confronted with, and the objective component requires that his perception was objectively reasonable.[^9] When considering what was reasonable in the circumstances, I must consider Mr. Murray’s situation and experience. It is clear from the evidence that Mr. Murray believed that his actions were necessary. The keys that were taken by the complainant were for the various businesses that Mr. Murray cleaned and were, therefore, important to Mr. Murray’s livelihood.
[56] There is no evidence to suggest that Mr. Murray intended to cause the complainant death and I find that the Crown has not proven that he intended to cause her grievous bodily harm. Ms. Warman’s evidence was clear that from her perspective Mr. Murray’s goal was to get the keys back. Although Ms. Warman described Mr. Murray as being very physical and aggressive with the complainant, subject to the broken thumb, there is no evidence of any physical injuries that would suggest excessive force was used or that Mr. Murray intended grievous bodily harm. The complainant denied the possibility that her thumb broke when she fell after being hit with the van, and insisted that she felt it “snap” when it was pulled back as they were fighting over the keys. I have already concluded however, in light of the reddened palm, that her thumb may have broken when she fell after being hit by the van. I certainly could not conclude beyond a reasonable doubt that it broke during the struggle over the keys. Furthermore, the complainant fairly conceded that she was partly responsible given the way she was holding the keys. If her thumb broke during the struggle over the keys, it is certainly possible that it did so as Mr. Murray was pulling on the rope. There is no suggestion that he deliberately grabbed the complainant’s hand and broke her thumb. I have, therefore, not considered the broken thumb as evidence of grievous bodily harm resulting from this altercation or that excessive force must have been used during the struggle over the keys.
[57] The issue is then is has the Crown proven beyond a reasonable doubt that Mr. Murray’s perception of the force that he needed to apply in order to retrieve his keys was not objectively reasonable?
[58] The complainant’s evidence that she was hit or kicked in the head by Mr. Murray on the lawn is not supported by the evidence of Ms. Warman. Although she described Mr. Murray as being very physical with the complainant, she did not suggest that he hit or kicked her in the head. Furthermore, in my view, there would have been injuries to the complainant’s head, if Mr. Murray had hit or kicked her head as she alleges. There is no evidence of any and the complainant admitted that she did not complain of any. I, therefore, do not accept her evidence about how she was allegedly assaulted. The complainant also denied following Mr. Murray to the driver’s side of the van but that evidence is at odds with the evidence of both Ms. Warman and Ms. Gibson.
[59] The evidence of Ms. Warman however, is also at odds with the evidence of Mr. Murray. He only admitted to pulling on the rope of the keys, not to any physical contact with the complainant’s body. Ms. Warman was not asked about any rope on the keys, but from the distance that she was observing this struggle I do not believe she would necessarily have been able to see one. I find that after Mr. Murray first pulled on the rope to retrieve his keys and that did not work, that he then did apply force to the complainant to retrieve them.
[60] As I have already stated, I have concerns about the evidence of both the complainant and Mr. Murray as to what happened during the course of the struggle over the keys. I believe that the complainant exaggerated what happened and Mr. Murray downplayed it. The best evidence I have as to what actually occurred is the evidence of Ms. Warman. I must take into account, however, that she was standing some distance away and I am not clear what angle she viewed the struggle from. In any event, what is significant from the evidence of Ms. Warman, is, as I have said, that Mr. Murray’s goal appeared to be to get his keys back. She did state that Mr. Murray punched the complainant in the left shoulder, but said that he was mostly shoving her to open up her body from the fetal position, so he could get at the keys. She was not asked how she could distinguish between punching and shoving from the angle she was observing the struggle from. She also was not asked to distinguish between what she meant by a punch versus a shove. In my view, given she was observing these events from an angle, she might not have been able to reliably distinguish between a punch versus a push or a shove. When Ms. Warman made her observations Mr. Murray was standing over the complainant and this could explain why his attempts to “open” the complainant from her fetal position appeared to be “very physical” from her perspective. I find on her evidence however that Mr. Murray was at the very least pushing and shoving on the complainants left shoulder and that he may have punched her there as well. However if he did, he did not use much force, given there is no evidence of any injury to her shoulder.
[61] It is also significant that the complainant got up and went after Mr. Murray after he left her to go back to the van. The fact that she reengaged in what Ms. Gibson described as a “scuffle” with Mr. Murray and that she did so aggressively, suggests that she had not been beaten physically in the manner that she suggested in her evidence nor would this have made any sense if her thumb had already broken during the struggle over the keys as she testified to.
[62] Although I have found that Mr. Murray may have punched and certainly shoved or pushed the complainant on her left shoulder, I am not satisfied beyond a reasonable doubt that he used excessive force. Any punching, pushing or shoving left no injuries on the complainant’s shoulder, and I am not satisfied that Mr. Murray intentionally broke her thumb during the scuffle. For these reasons, I am not satisfied beyond a reasonable doubt that Mr. Murray was not justified in using the force that he did in order to regain possession of his keys.
Conclusion Count 5
[63] The complainant testified that if Mr. Murray drove straight that he would have missed her and that Mr. Murray drove the van right at her. That would suggest he was aiming directly for her in which case he would have hit her with the front of his van. Although this could possibly be consistent with what Ms. Gibson meant when she testified that Mr. Murray accelerated in order to “push her out of the way”, considering all of the evidence, including the evidence of Mr. Murray, he struck the complainant first, hitting the outside of her left arm, with the driver’s side mirror. Given where the complainant was injured I am not satisfied that Mr. Murray aimed for the complainant and tried to drive the van directly into her as she suggested.
[64] Neither of the eyewitnesses testified that it appeared to them that Mr. Murray deliberately ran his van into the complainant. The closest Ms. Gibson got to saying this was that Mr. Murray would not have hit the complainant if he had not accelerated. That, however, is no different than saying he would not have hit the complainant if he had not driven away. It begs the question of whether or not Mr. Murray hit the complainant deliberately.
[65] Ms. Gibson’s evidence was that Mr. Murray’s van hit the complainant twice; first with the driver’s side mirror and then with the front left side of the van. Ms. Warman only saw a hit with the van’s front wheel-well on the driver’s side. Ms. Gibson was witnessing this from behind the van and Ms. Warman also saw it from an angle. Their observations were different as to what occurred but they are consistent on what Ms. Gibson characterized as the second “hit”. Given the bruise to the complainant’s upper left arm, it is likely that she was hit there by the mirror of the van and this is consistent with the evidence of Ms. Gibson and Mr. Murray. This may not have been observed by Ms. Warman. Given the evidence of both Ms. Warman and Ms. Gibson, and given the complainant was moving around, it seems likely that the side of the van then grazed the complainant after she lost her balance from the first hit. However, I do not find that there could have been much of an impact as had the van hit her with any real force she would have had other visible injuries. The injuries to her right side are consistent with falling to the street and the bruised knees are consistent with her fall.
[66] The question then is whether or not Mr. Murray deliberately hit the complainant with his van. Ms. Gibson did not say the Mr. Murray stopped and started between these “hits” nor did Ms. Warman suggest that he accelerated more than once. Given that the evidence of the eyewitnesses is inconclusive as to whether Mr. Murray was aiming for the complainant and given Mr. Murray’s denial, I find his evidence raises a reasonable doubt. Certainly it would make no sense for him to deliberately hit the complainant with his van in front of a small crowd of people that he had already seen watching them, particularly with the complainant telling Ms. Gibson that she should get his licence number. Although he admitted seeing the complainant standing next to his mirror, given that she was moving around, I find that it is certainly plausible that he did not realize that he would hit the complainant with the mirror until he saw it happen. It is also significant that the mirror was large, approximately 12 x 12 inches and that it stuck out from the van by about one foot. Furthermore, it is certainly possible that Mr. Murray did no more than graze the complainant’s arm with the van. The impact only bruised her arm; it did not break. Similarly, for the reasons already stated, the second impact may have occurred as the complainant lost her balance and there is no evidence that it caused any visible injuries.
[67] For these reasons, I am not satisfied beyond a reasonable doubt that Mr. Murray intentionally hit the complainant with his van.
Disposition
[68] Mr. Murray would you please stand.
[69] For the reasons that I have given, I find you not guilty of all of the charges.
SPIES J.
Released: May 25, 2012
[^1]: [1991] 1 S.C.R. 742. [^2]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13. [^3]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). [^4]: R. v. J.H.S., supra at para. 9. [^5]: R. v. Hull, [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23. [^6]: R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 at p. 155 (BCCA). [^7]: The Queen v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.) at p. 300. [^8]: 41st Parliament, 1st Session, Bill C-26. The Bill has received its second reading and is now before the Standing Senate Committee on Legal and Constitutional Affairs. [^9]: R. v. Mathisen, 2008 ONCA 747, at para. 49, citing R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 93-95.