COURT FILE NO.: 336/11

DATE: 20121025

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

T.S.

Kosta Stratos, for the Crown

Alan Glass, for the accused

HEARD: October 1-5, 2012

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

Mr. Justice Kenneth L. Campbell:

I

Overview of the Case

[1] The accused, T.S., is charged with the commission of four offences in Toronto. More particularly, he is alleged to have sexually assaulted S.M. between March 1, 2009 and January 8, 2010. He is also alleged to have criminally harassed S.M. between January 6 and 13, 2010 by repeatedly communicating with her and thereby causing her to reasonably fear for her safety. He is also charged with failing to comply with two separate probation orders, each of which required him to keep the peace and be of good behaviour. Mr. T.S. has pled not guilty to all four of these charges.

[2] For a time, Mr. T.S. and S.M. were romantically involved and lived together at the complainant’s home in Scarborough. Their relationship ended, according to the Crown, when the accused forcibly raped the complainant. The complainant testified that the sexual assault took place on a weekend that the accused’s parents travelled from their home in Englehart, near Kirkland Lake, to Toronto. They had come to attend an important medical appointment the accused had at Sunnybrook Hospital. They all stayed at the complainant’s home overnight. After eating dinner and watching a movie together, the accused’s parents retired to a downstairs bedroom, and the accused and the complainant slept together upstairs. The complainant agreed that she and the accused likely had consensual sexual intercourse that night.

[3] According to the complainant, the sexual assault happened the next day, after the accused’s parents had left for home. S.M. testified that the accused got on top of her, pulled down her pants and raped her. The complainant testified that, while forcing himself on her, the accused called her degrading names, spit on her, slapped her, and pulled her hair. The complainant tried unsuccessfully to resist, and she was crying and screaming for him to get off. Afterwards, the accused laughed about it and suggested that she had “liked it.” They had never had sexual relations like that before. Later that night S.M. evicted him from her home and ended their relationship.

[4] The accused also identified an occasion when his parents came to Toronto to attend an important medical appointment with him at Sunnybrook Hospital. Medical records pin-pointed the date of this appointment as December 8, 2008. The accused agreed that, after the appointment, they all stayed together at the complainant’s Scarborough home. They ate dinner and watched a movie together. According to the accused, that night, he and the complainant engaged in aggressive, but entirely consensual, sexual activities in the upstairs bedroom. The accused admitted that, during this lengthy sexual encounter, he held her down, called her degrading names and spat on her. He explained, however, that this was simply part of their routine consensual sexual activity. Indeed, the complainant invited this type of aggressive sexual treatment. The accused denied the complainant resisted, told him to stop, or evidenced any sign of protest. When they finished, the complainant told him that she loved him and missed him. The consensual nature of this activity was confirmed by the accused’s father who testified that, from the downstairs bedroom, he could not help but hear the complainant urging the accused to go “faster” and “harder.”

[5] Subsequently, in early 2010, in an effort to renew their relationship, the accused left a number of voice-mail messages for the complainant, and sent her a number of text messages. The Crown contends that these communications reasonably caused the complainant to fear for her safety. The accused contends that there was nothing harassing or threatening about these few communications. He was simply making efforts to rekindle their earlier romantic relationship after having been encouraged to do so by the complainant herself.

[6] The Crown contends that, by committing the crimes of sexual assault and the criminal harassment, the accused violated his probation orders to keep the peace and be of good behaviour. The parties agree that if the accused is found guilty of those offences, he should also be found guilty of breaching those probation orders. If, however, the accused is found not guilty of those offences, the parties agree that the accused should also be acquitted of the breach of probation charges.

[7] The essential issue in this case is, accordingly, whether the Crown has proven the guilt of the accused in relation to these four offences beyond a reasonable doubt.

II

The Evidence

A. The Evidence of the Complainant

1. The Background

[8] S.M. is now nearly 37 years of age. She has a grade 11 education. For most of her adult life she has worked as a dancer and a bartender. She is currently unemployed and last worked in December of 2011.

[9] Initially, S.M. testified that she met the accused at a bar in Toronto during the Pride weekend in the summer of 2010. Later, after being reminded of the text messages that she received from the accused in January of 2010, after the alleged sexual assault, she agreed that she must have first met the accused in 2009.

[10] S.M. testified that her relationship with the accused progressed quickly. After a few months, the accused, who was then working in the landscaping and construction business, moved in with her at her Scarborough home. She testified that this happened in October or November of 2010. At that point, S.M. was working as a dancer and bartender in Toronto.

[11] According to the complainant, as soon as the accused moved in, their relationship began to get “rocky.” The accused started acting very strange, and they began to argue frequently. The accused was not interested in work and slept all day long. The accused was moody and miserable. The accused was “just not the same guy” after he moved in with her. It started to scare her. It got to the point where she no longer wanted him in her home as he had become threatening and abusive and she was not comfortable.

[12] The complainant testified that, at some point, she called his parents to tell them to come and bring him home. During a conversation with the accused’s father, T.S. Sr.., the complainant learned that the accused had another court case involving an alleged assault on another woman. It was after learning this information, and talking about it with the accused, that the relationship between the complainant and the accused ended.

2. The Alleged Sexual Assault

[13] According to the complainant, the sexual assault took place sometime after the accused had a court date in relation to this other assault charge and was on some type of house arrest. She testified, more specifically, that it took place after a visit from Mr. and Mrs. S.. They had come to Toronto from Englehart for a “family visit” and for a medical appointment the accused needed to attend. The complainant could not be more specific as to the date the alleged sexual assault took place. She testified that it was sometime in the winter as it was cold outside. Initially, she stated that it may have been in 2010.

[14] The complainant testified that they all stayed at her home in Scarborough the night before the sexual assault. The accused’s father bought dinner for everyone from a nearby establishment. They ate together and watched a movie together. It was a very casual evening. She fell asleep while the movie was playing. The complainant had set up the basement for Mr. and Mrs. S. so they could sleep in a nice bed by the fireplace. She slept with the accused in her upstairs bedroom. According to the complainant, the accused was on “good behaviour” in front of his parents and the evening “went well.”

[15] The complainant agreed that, when she went to bed that night, she and the accused probably had consensual sex. She estimated that it would not have lasted longer than seven or eight minutes, and she would have been quiet out of respect for the accused’s parents.

[16] According to the complainant, after Mr. and Mrs. S. left the next morning, the accused “woke up with a totally different personality.” They were arguing because the complainant could not stand the way his attitude had changed toward her. It turned “ugly.” They were in her bedroom in bed. They were both wearing track pants and t-shirts. The complainant described the accused as having “demonic yellow eyes,” and looking at her like he was “insane.”

[17] The complainant testified that the accused got on top of her and held her down with his body weight. He was holding both of her shoulders down. She was “twisted like a pretzel” but trying to get him off with her left arm. She could not get out from beneath him. The accused was very strong. He pulled her track pants down to her knees. She had nothing on underneath. He was spitting in her face, which was very degrading, and she started crying. He was also calling her names and laughing while he was doing “the old humperoo down there.” At one point he pulled her hair. He also slapped her a couple of times. She told him many times to “get off.” She was screaming at him to “stop” and telling him that she was “not saying yes.” The assault lasted approximately five minutes. When the accused was finished he got off her and started laughing about it. He said that she “liked it,” and acted like nothing happened.

[18] The complainant testified that, normally, she and the accused had a “playful” consensual sexual relationship. She agreed that, in the beginning of their relationship, she was used to having “aggressive sex” with the accused. Sometimes the accused would hold her down, spank her and pull her hair, but it was “harmless.” She agreed that this could fairly be described as “borderline” fetish type sex, but “not overly too aggressive to the average person.” But it was not always like that. Indeed, the complainant testified that never before had they engaged in sexual relations like the alleged rape. More particularly, never before had the accused spit in her face, put his hand on her mouth, called her degrading names, or hit her in the face.

3. The Immediate Aftermath

[19] The complainant testified that, afterwards, they got into an argument over the phone. She wanted to call his father and tell him what happened. The accused did not want her to make that call, and he threw the phone away from her a couple of times. Eventually, however, she was able to contact his parents. She spoke first to Mrs. S. and then Mr. S. Sr. The complainant told them that the accused had hit her and that it was violent. She was not sure whether she got into the “sex part,” but she made it clear that she needed the accused to get out of her house immediately. They would not come to get him, however, and wanted the complainant to deliver him to their home.

[20] The complainant testified that, after the call, she got ready to go to work. She then drove the accused to Etobicoke, where she worked. There were no discussions between them during this trip, just “dead silence.” She thought that at some point he was trying to apologize, but she was “not having it.” Subsequently, his parents picked the accused up and drove him back to Englehart.

4. The Alleged Criminal Harassment

[21] According to the complainant, afterwards the accused tried phoning her, writing her letters, and sending her music and pictures, but he was “wasting his time.” She never saw him again other than in court proceedings. She never called him.

[22] The complainant testified that she did not have a cell phone for a long time thereafter. Indeed, she testified that they never text messaged each other after that. More specifically, she testified that the accused never sent text messages to her. She explained that she got rid of her cell phone right afterwards.

[23] The complainant testified that she could not recall how the police got involved. Eventually, however, she repeated the “same story” to them about what happened. She was unable to recall any details as to when or where that may have taken place.

[24] The complainant testified that, at some point, she must have left some police report as the accused would not stop phoning her and writing her letters. She thought that she might have called the police to tell him to stop bothering her. She just wanted him to stop the “whole shebang.” She considered it “harassment.” According to the complainant, she told him to leave her alone many times and told him not to come to her house.

[25] Through the complainant, and a Toronto Police Service officer, Ronnie Roberts, the Crown tendered a number of photographs of the complainant’s cell phone and, more particularly, of the text messages sent from the accused revealed on that phone. These photographs show that over the course of the nearly five day period between January 8, 2010, at 7:55 p.m. and January 13, 2010, at 5:04 p.m., the accused sent the complainant eight very brief text messages. The complainant did not respond to any of these text messages.

[26] The accused began with a text on January 8, 2010, telling the complainant, essentially, that he had turned his new girlfriend into the complainant by buying her the same tattoos and car. The accused added that he just had to get her the “tits.” He said it was “awesome.” In his evidence at trial the accused explained that this message was a joke as the complainant had told him that he would never find another girlfriend like her.

[27] The accused then sent the complainant a quick series of five short texts over a period of just two minutes at around 7:00 a.m. on January 12, 2010. In these text messages, the accused (1) offered to be her roommate and pay rent; (2) told the complainant that he was still in love with her, thought about her all the time, missed her, and needed to see her; (3) apologized for the phone calls, but said it was just good to hear her voice on her voice-mail; (4) told her that he needed to talk to her about something important; and (5) asked her why she would not talk to him anymore.

[28] On the afternoon of January 13, 2010, the accused sent the complainant two more messages, nearly two hours apart, in which the accused: (1) asked the complainant what he needed to do to get her to talk to him again; and (2) told the complainant that he would “stop by” this weekend.

[29] The complainant testified that the accused was just trying to get a “reply” out of her. However, she testified that she viewed the January 13, 2010, text messages as “kind of like a threat” as she did not want him anywhere near her house. She acknowledged, however, that the messages were not a threat “in so many words.” It was just that she did not want him to come to her house. In any event, she did not reply to any of these messages.

5. The Complainant’s Confusion Over Dates

[30] The complainant testified that these text messages from the accused in January of 2010 were sent after the alleged sexual assault. After seeing these messages and being reminded by the Crown of her evidence that she first met the accused in July of 2010, the complainant conceded that she might be somewhat “off on her dates.” She suggested that it might have been 2009 when she met the accused, but admitted that she was “confused” about the dates. She testified that she had known the accused for “at least a year” prior to the alleged sexual assault, but she was unable to say when the alleged sexual assault took place in relation to the text messages.

[31] After a lunch break, the complainant returned and testified that she now recalled that she met the accused during the 2009 Pride Week, and that the text messages were a year later in 2010, after the rape happened. She stated that this “totally clicked” when she left the courtroom. This was her “mistake.” Further, the complainant testified that she thought the sexual assault took place “probably a matter of weeks” before the text messages.

[32] When the Crown sought to refresh her memory from an excerpt from her testimony at the preliminary inquiry, the complainant testified that the closest she could come to narrowing down the date of the alleged rape was to say that it was “a day or two before” she reported it to the police. That was her “best guess.” Subsequently, when shown the same passage from her preliminary inquiry transcript again, the complainant stated that, in that evidence she testified that it had happened in “November or December of 2009,” but she testified that she may have been “wrong there.”

[33] Later she testified that it was “very possible” that the sexual assault happened in “November or December of 2009.” However, she then immediately corrected herself saying: “wait, no it was 2010, I met him in the summer of 2009, that is where I had it confused.” She then stated that the assault happened, and the report of the assault happened in “June, 2010.” When reminded by the Crown that the text messages from the accused took place in January of 2010, the complainant then conceded that, maybe the sexual assault was reported in January.

B. The Evidence of Constable Roberts

[34] Toronto Police Service officer, Constable Roberts, testified that on the evening of January 13, 2010 he was dispatched to the complainant’s residence in relation to a complaint about her former boyfriend, T.S., who had apparently been contacting her for approximately a week and had said that he was going to come to her house. When he arrived at the Scarborough location, Constable Roberts spoke to the complainant and her male friend, A.L.. The officer explained how he took pictures of the text messages on the complainant’s phone. During this meeting, S.M. complained that she had been abused and raped by the accused. She also complained that he had been texting her and was threatening to come to her house.

C. The Defence Evidence

1. Introduction

[35] The defence called three witnesses: the accused; his father T.S. Sr..; and his father’s best friend, P.B..

[36] T.S. Sr. is 44 years of age and has lived in Englehart with his wife for some 27 years. He has no criminal record. He works as a truck driver, delivering milk for processing. Mr. S. Sr. admitted that, like any father, he wants to help his son. But he stated that, if he believed the allegations by the complainant, he would not have come to court. P.B. is a 52 year old registered nurse with no criminal record. He lives in Kirkland Lake with his fianceé, K.S.. Mr. P.B. and Mr. S. Sr. are best friends.

[37] As already noted, essentially, the accused agreed that he and the complainant had engaged in sexual activities in the bedroom of her Scarborough home on the occasion that his parents stayed there overnight, but that these activities were entirely consensual. T.S. Sr. and P.B. provided credible evidence that appears to significantly corroborate the version of events offered by the accused.

2. The Background

[38] The accused is now 28 years of age. The accused testified that he met the complainant during the Gay Pride weekend in the summer of 2008. They “hit it off” right away. Before they moved in together, the complainant would sometimes stay with him at his brother’s residence. He testified that, while their relationship started with “normal” sexual relations, eventually it grew into “fetish sex.” It started with light slapping, and progressed from there. According to the accused, however, their sexual activities were always consensual.

[39] The accused explained that, in December of 2008, his parents drove him to Toronto, from their home in Englehart, to attend a medical appointment the accused had at Sunnybrook Hospital. When they arrived in Toronto, they picked up the complainant at her home in Scarborough and then went straight to the hospital.

[40] Medical records from the Sunnybrook Health Sciences Centre, established that the accused had an examination there on the afternoon of December 9, 2008.

[41] At some point while they all waited to see the doctor, Mr. S. Sr. and the complainant went outside together. According to the accused, he and the complainant had been arguing, and his father decided to separate them and have a talk to S.M.. Mr. S. Sr. confirmed this evidence.

[42] Mr. S. Sr. testified that, while they were outside together, S.M. said she needed a drink. They went to a nearby LCBO, and the complainant bought a “mickey” bottle of liquor, and she quickly drank it while they sat in the truck together. They were gone from the hospital less than an hour. When the complainant was questioned about this incident, she could not recall it, and did not think that it happened.

[43] After the medical appointment they all went to do some shopping at a mall in Scarborough. Coincidentally, while at the mall, they ran into friends of Mr. S. Sr.., namely, P.B. and K.S.. Mr. P.B. and Ms. K.S. were from Kirkland Lake and were also visiting in Toronto. They made plans to meet for breakfast at the Golden Griddle in Scarborough the following morning. The accused and the complainant then went off shopping on their own.

[44] Both Mr. S. Sr. and P.B. confirmed this chance meeting in the Scarborough Mall. Mr. P.B. specifically recalled meeting the complainant during the meeting. Mr. P.B. was able to confirm that this meeting took place on December 9, 2008 as he was able to produce a Visa Statement showing that he paid $160.70 to the Travel Lodge in East Scarborough the following day, for the accommodations Mr. P.B. and Ms. K.S. stayed in that night. The Crown admitted that Mr. P.B. was an “honest witness.”

[45] When the complainant was asked about this meeting, she testified that she did not recall going shopping after the medical appointment, and did not recall this meeting at the Scarborough mall. Indeed, the complainant suggested that it never happened.

[46] The accused testified that, when they finished shopping, his parents, the complainant, and himself returned to the complainant’s home in Scarborough. Before arriving there, they bought some food for dinner at a nearby restaurant, and rented a movie to watch. Then everyone went back to the complainant’s home, ate dinner and spent the evening watching the movie. Mr. and Mrs. S. retired to the basement bedroom before the movie was over. When the movie finished, the accused and the complainant went upstairs to bed.

3. The Consensual Sexual Activity

[47] The accused testified that, when they went to bed, he and the complainant had consensual sexual intercourse. Eventually, it “got rougher” with a “little bit of slapping” and “holding her down” by her arms. The accused explained that they were both “into that and liked it.” They had done this on many earlier occasions. According to the accused, when they moved from the bed over to the dresser, where they continued to have intercourse with the accused standing, he began covering her mouth and nose and holding her neck. The accused testified that the complainant did not object to any of this, but rather had asked him to do it. The accused explained that she had showed him a different sexual lifestyle. He admitted that it was exciting to put his hands on her neck, and her enjoyment of this increased his excitement. As he explained, this made the sensations of sex better. The accused testified that their sexual activity “got louder” as they progressed. He also admitted that he spat on her and called her his “slut.” He explained that they had become comfortable with the spitting, and the complainant liked to be called such names. He admitted that this also turned him on. These were all things that they had done in the past together, and the complainant had never objected to any of this. Indeed, according to the accused, the complainant only told him to do it “faster” and “harder” and that she loved him. At no point did she ever cry or tell him to stop.

[48] Twice during the course of this consensual sexual encounter, the accused’s father told them to “keep it down.” Mr. S. Sr. testified that he was awakened at approximately 3:00 a.m. to the sound of the complainant’s voice. She was saying things like “harder baby,” “faster baby” and “I love you.” He went upstairs into the hallway and yelled at them to “keep it down.” According to Mr. S. Sr.., there was quiet for maybe 10 minutes before he could hear the same pattern again. This time Mr. S. Sr. went upstairs and knocked on their bedroom door, told them that he had to leave early in the morning to get to work the next day, and to “quiet down.” After this second request, the complainant’s sounds were more muffled. The accused testified that this was embarrassing, but he explained that the complainant was very open about their sex life.

[49] The accused testified that, when this lengthy sexual episode ended, at approximately 4:00 a.m., he and the complainant cuddled. The accused testified that there was also some emotional crying by the complainant afterwards. She was sad because she knew he was leaving in the morning. Eventually they went to sleep.

4. The Next Morning - Breakfast at Golden Griddle

[50] Mr. T.S. Sr. testified that, when they got up the next morning, he had a conversation with the complainant in which she apologized for keeping him awake the previous night. She said she was sorry for all the noise.

[51] After everyone got dressed, they headed off to breakfast at the Golden Griddle Restaurant. As earlier arranged, they were joined by P.B. and K.S.. Breakfast lasted about 30 minutes. The accused testified that, during breakfast, he and the complainant were holding hands and hugging. S.M. was crying as she knew that they would not see each other again for some time.

[52] According to the accused, after breakfast, he and the complainant went outside for a cigarette and talk at the vehicle. Eventually his parents came out and they headed back to the complainant’s home to drop her off. When they arrived, they hugged outside of the car while saying good bye. It was hard for them to separate. Eventually, he and his parents left for home in Englehart. The complainant had to work that day.

[53] Both T.S. Sr. and P.B. confirmed the details of this breakfast gathering. Mr. P.B. testified that it took place on December 10, 2008 between 7:30 and 8:00 a.m. at the Golden Griddle Restaurant. Mr. P.B. recalled that he and Ms. K.S. were there, together with Mr. and Mrs. S., and the accused and the complainant. Mr. P.B. was in something of a rush to get through breakfast as he had a doctor’s appointment at 9:00 a.m. that day. Mr. P.B. testified that the complainant seemed initially “okay” at the start of breakfast, but eventually turned to the accused and said, “Don’t go – don’t go.” At that point, she started leaning on him and crying. Mr. P.B. testified that he paid for the breakfast for everyone. Indeed, he produced his Bank Account Statement which proved that, on December 10, 2008, he made an Interac purchase at the “Golden Griddle” for $83.16. As already mentioned, the Crown admitted that Mr. P.B. was an “honest witness.”

[54] Mr. S. Sr. also testified that the complainant got sad and started to cry during breakfast. He heard the complainant tell the accused how much she loved him, and asked him not to leave. He heard the accused say that he loved her too, but he had to go back to Englehart. When they went outside, he saw the accused and the complainant by their vehicle cuddling. The complainant was still crying.

[55] When the complainant was asked about this breakfast meeting following the night Mr. and Mrs. S. spent the night at her home, she denied the meeting. She testified that, when they left her home, the accused was left behind with her. According to the complainant, she never met Mr. P.B. and Ms. K.S..

5. Their Continuing Relationship – Subsequent Sexual Activities

[56] The accused testified that he saw the complainant again, in Englehart, on Valentine’s Day in February of 2009. She had tried to come for New Years at the end of 2008, but had car trouble, but they got together on Valentine’s Day at the S. Sr. residence. She was there for a couple of days. During this visit, the complainant and the accused slept together in his bedroom. The accused testified that, again, they had the same type of “rough” sex, where he held her down as they had intercourse.

[57] Mr. S. Sr. confirmed this visit by the complainant. He testified that he picked up the complainant at a gas bar in Mississauga and drove her to Englehart himself. He also testified that he drove her back a few days later.

[58] According to the accused, he and the complainant got together twice more at his parent’s residence in Englehart. Their final meeting was in May of 2009, but there was another meeting between Valentine’s Day and May of 2009. The accused testified that, on each of these meetings, he and the complainant had the same type of “rough” and “aggressive” sexual relations, but it was always consensual. This was typical of their sexual activity.

[59] Mr. S. Sr. confirmed the second of these visits in May of 2009. He testified that the complainant arrived in Englehart by bus, but he drove her back to Toronto himself. Mr. S. Sr. described how, at that time, the accused had an upcoming court date and was going to jail. Again, she and the accused slept together during this visit. Mr. S. Sr. described how she was crying hysterically when it came time to return home. Indeed, he testified that he had to drive her to a liquor store so she could buy herself a bottle to calm herself down.

[60] The accused testified that, between these visits, he communicated with the complainant by phone and text messages. They were getting along “pretty good” but, with the distance between them, it was difficult. According to the accused, there was no indication that the complainant was upset or angry with him.

[61] The accused admitted that, in the summer of 2009, he was sent to jail in relation to other unrelated criminal offences. At that time, he and the complainant ended their relationship. Apparently, her old boyfriend was returning. While the accused was in jail he sent a few letters to the complainant. He was released in August and placed on probation.

[62] When the complainant was asked about these visits, she testified that she never went to Englehart after the accused raped her.

6. The Alleged Criminal Harassment

[63] The accused testified that, on December 26, 2009, he engaged in text message correspondence with the complainant. He was in Barrie visiting another woman at the time. Essentially, he asked the complainant what she was doing. She responded, by asking him to call her if he could. The accused did not know what happened to those text messages. When the accused called her later, they talked about their past, and about how much they missed and loved each other. The complainant told him that she still loved him and that he would always have a place in her heart. She still seemed to want some kind of relationship with him.

[64] According to the accused, in early January of 2010 he tried to contact the complainant again. The accused admitted sending the complainant the text messages between January 8 and 13, 2010. He missed her after talking to her just a couple of weeks earlier, and after not seeing her for seven months. He also tried to contact her by telephone a number of times between January 10 and 13, 2010. The complainant never indicated that the messages were bothering her. He started to wonder why she would not talk to him anymore after they had spoken in December. At some point, the complainant’s new boyfriend sent him a text message asking him not to text her anymore as S.M. was with him now.

[65] The accused testified that he was arrested on January 13 or 14, 2010 and charged with criminal harassment. Later, at a court appearance, he was charged with sexual assault.

7. An Incident at the Preliminary Hearing

[66] Mr. T.S. Sr. testified that during the preliminary inquiry in this case, held at the Scarborough Courthouse, he met the complainant in the hallway after she had testified. She sat down nearby. She asked to borrow his coat, and he agreed, but because his wallet and cell phone were in the pockets, he walked outside with her. When they got outside, the complainant suggested that they go for a drink and talk at a nearby establishment. According to Mr. S. Sr.., he ordered a coke, and the complainant ordered two double shots of tequila. After her second round, the complainant told him that she better stop now, as she had a meeting with a counselor and “they think I don’t drink or do drugs anymore.” During their conversation at the bar, the complainant told Mr. S. Sr. that she missed the accused a lot and wished that she could see him. She also told him about her problems with her current boyfriend.

[67] When asked about this incident, the complainant agreed that she met with Mr. S. Sr. at a bar, but she testified that they went to the bar to talk, not to have drinks. She denied saying that she missed the accused, but admitted telling Mr. S. Sr. that she was sorry if she was hurting his family.

III

The Applicable Legal Principles

A. The Offence of Sexual Assault

[68] The accused is charged with sexually assaulting the complainant, contrary to s. 271 of the Criminal Code, R.S.C. 1985, chap. C-46. The law is clear that in order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (1) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised the sexual integrity of the complainant; (2) that the complainant did not consent to this touching; and (3) that the accused knew that the complainant was not consenting to the sexual touching, or was reckless or wilfully blind in relation to whether the complainant was consenting. See: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293. On the complainant’s version of events, there would be no question that the accused committed the offence of sexual assault.

B. The Offence of Criminal Harassment

[69] The accused is also charged with criminally harassing the complainant, by repeatedly communicating with her and thereby causing her to reasonably fear for her safety, contrary to s. 264(2)(b) of the Criminal Code. The law is settled that in order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (1) that the accused repeatedly communicated with the complainant; (2) that the complainant was harassed by these repeated communications; (3) that the accused knew that the complainant was harassed by these communications, or was reckless or wilfully blind in relation to whether the complainant was harassed; (4) these repeated communications from the accused caused the complainant to fear for her safety; and (5) the complainant’s fear for her safety was reasonable in all of the circumstances. See: R. v. Kordrostami (2000), 2000 CanLII 5670 (ON CA), 47 O.R. (3d) 788 (C.A.); R. v. Krushel (2000), 2000 CanLII 3780 (ON CA), 142 C.C.C. (3d) 1 (Ont.C.A.); R. v. Ohenhen (2005), 2005 CanLII 34564 (ON CA), 200 C.C.C. (3d) 309 (Ont.C.A.); Leave denied: [2006] S.C.C.A. No. 119.

C. The Presumption of Innocence and the Burden of Proof on the Crown

[70] As constitutionally guaranteed by s. 11(d) of the Charter of Rights, every person charged with a criminal offence is presumed to be innocent. That presumption of innocence remains with Mr. T.S. unless and until the Crown establishes his guilt beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence.

[71] As the accused testified in this case, in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt in relation to these alleged offences, I must apply the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. In other words: (1) if I believe the testimony of the accused that he did not commit the offences for which he is charged I must find him not guilty; (2) even if I do not believe the testimony of the accused that he did not commit these offences, if his testimony leaves me with a reasonable doubt of his guilt regarding any of these offences, I must find him not guilty of those offences; and (3) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt regarding any of these alleged offences, I may only properly find him guilty of an offence if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding that offence. The application of these principles ensures that reaching a verdict does not devolve into a mere credibility contest between the two main witnesses, and ensures that the presumption of innocence and the Crown’s burden of establishing the guilt of the accused beyond a reasonable doubt properly operate. See also: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5.

IV

Analysis

A. The Testimony of the Complainant – S.M.

[72] The complainant testified clearly as to the events that constituted the alleged offence of sexual assault. In her mind, there could be no question but that, on the occasion in question, the accused forcibly had sexual intercourse with her, knowing that she did not consent. The complainant also testified that, after she was raped, the accused sent her many unwanted messages, at least one of which scared her. There are, however, very significant problems with her evidence. Indeed, I found her to be a confused and forgetful witness.

[73] First, and most obviously, the complainant’s testimony clashes not only with the version of events provided by the accused, but also with the testimony of the other defence witnesses and the documentary evidence. The complainant clearly testified that the alleged sexual assault followed the night that the accused’s parents slept in her home. In her mind, the sexual assault was tied to that visit to Toronto by Mr. and Mrs. S.. There is no evidence that the accused’s parents ever stayed overnight in the complainant’s Scarborough home on more than that single occasion. This anchors the timing of the alleged sexual assault to the dates of December 9-10, 2008. Indeed, the testimony of the three defence witnesses, as confirmed by the medical records from Sunnybrook Hospital and the banking statements from Mr. P.B., clearly establish that this visit happened the night of December 9-10, 2008. Accordingly, even if the complainant’s testimony were accepted as to the non-consensual nature of their sexual activities, this would only establish the commission of a sexual assault far outside the broad span of time alleged in the indictment (between March 1, 2009 and January 8, 2010), which the Crown never sought to have amended. More importantly, however, this stark contrast between the complainant’s evidence and the other evidence highlights the unreliable and confused nature of the complainant’s testimony.

[74] Of course, if the accused and the complainant are talking about the same event, and the controversial sexual activity took place the night of December 9-10, 2008, it is very difficult to accept the version of events offered by the complainant. All three defence witnesses described the complainant’s emotional state the following morning at breakfast in the same manner. She was clinging to the accused, hugging him and holding hands with him. She was heard trying to convince him not to return home to Englehart with his parents. They were heard exchanging expressions of love. I have no hesitation accepting the evidence of these three defence witnesses that this was the emotional condition of the complainant at breakfast the following morning. If the accused had violently raped the complainant the night before, one might have expected to see some evidence of that in her emotions and in her dealings with the accused the next morning. There was no such evidence. Instead, the evidence as to her emotional state and her conduct with the accused strongly support the version of events provided by the accused, which was that they had engaged in an episode of consensual sexual activities the previous night.

[75] The complainant’s confusion is also evident on the face of her testimony itself. Initially in her evidence, S.M. testified repeatedly that she met the accused in Toronto during Pride Week in the summer of 2010, and that the sexual assault took place after he had moved in with her, sometime the following winter after it had turned cold. Subsequently, when confronted with the text messages from the accused that were sent in January of 2010, and believing these messages were sent after the alleged sexual assault, she changed her evidence. She then testified that she had actually met the accused in 2009. Of course, given the overwhelming evidence that the S. stayed at the complainant’s Scarborough home on December 9-10, 2008, even this revised testimony of the complainant is inaccurate. They would have had to have met in the summer of 2008, as the accused testified. It is hard to understand how the complainant could be so badly mistaken as to when she met the accused and began her relationship with him.

[76] The reliability and credibility of the complainant’s testimony is also undermined by the inconsistencies in her evidence.

[77] For example, in her testimony-in-chief, the complainant testified that when she contacted the accused’s parents by telephone immediately after the alleged rape, to ask them to come and pick up the accused from her house, she complained that their son had hit her, and that it had gotten “violent.” She testified that she was “not sure” whether she mentioned the “sex part.” In cross-examination, however, she testified that she believed that she had told the accused’s father that their son had raped her. She was then questioned on her evidence at the preliminary inquiry, where she had testified that, during this call, she had told the accused’s father; “just that he hit me and he was spitting on me. I didn’t say rape. I didn’t want to tell his Dad that.” She admitted giving this evidence at the preliminary hearing, but explained that she did not have a lot of time as the accused was wrestling for the phone. She then testified that she told the accused’s father that it “got violent,” it was a “bad situation,” that he “hit” her and that he did “this and that.” She testified that she was not sure what she told the accused’s father on the phone, but she thought she did eventually tell him “everything.” Accordingly, the complainant’s evidence changed in substance from her preliminary inquiry evidence on this subject. More particularly, the complainant went from saying that she consciously refrained from telling the accused’s father that his son had raped her, to saying that she may have been unable to provide that critical detail in her complaint due to the hurried circumstances of the call. If her testimony as to the nature of the alleged sexual assault is true, it is difficult to understand how the complainant could have failed to have reported the incident to the accused’s parents without mentioning the “sex part,” and why her evidence on this point is so inconsistent.

[78] By way of another example, the complainant also gave inconsistent evidence as to whether she saw the accused in Englehart after the alleged sexual assault. The complainant testified that, after the alleged rape, she did not go to see him in Englehart again. She stated that she was 100% sure with respect to this issue. However, at the preliminary inquiry she was much less certain in her evidence. At the preliminary inquiry the complainant testified she did not think she went up to Englehart after the “rape.” She went to Englehart before the “rape,” but she did not think she went afterwards. While she indicated that she was 95% sure in this regard, she also summarized her testimony as just being “more on the no side.” When cross-examined on this discrepancy, the complainant testified that her memory in relation to this issue was better at trial than it was at the preliminary inquiry. The complainant explained that, as she has been through therapy, she thinks much more clearly now, and is a “different person” now than she was back at the time of the preliminary inquiry. While the complainant may well have become a better and different person as a result of the therapy she has had since her testimony at the preliminary inquiry, this does not explain how her memory has improved in the time period since the preliminary inquiry.

[79] I note in passing that, accepting that any alleged sexual assault took place around the date of December 9-10, 2008, the complainant did not go to the police about the incident until over a year later on January 13, 2010. Even in the complaint that S.M. contends she made to the accused’s parents immediately after the alleged rape, she did not complain of the “sex part” of the episode. The old evidentiary rule about “recent complaint” has, of course, been abrogated. But, that is not to say that the delayed reporting of a sexual assault allegation can never be taken into account in assessing the veracity of a complainant’s testimony. The proper approach was outlined by Major J., delivering the judgment of the majority of the Supreme Court of Canada in R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, where he stated, at para. 65;

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[80] In the circumstances of the present case, it is appropriate to take into account the complainant’s lengthy delay in making a complaint to the police about the alleged sexual assault in assessing the credibility and reliability of her testimony. See also: R. v. M. (P.S.) (1993), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont.C.A.) at pp. 408-409.

[81] Finally, I note that the complainant’s testimony as to the alleged sexual assault is not corroborated or confirmed by any other evidence. That is not to say that an accused charged with an alleged sexual assault cannot, in an appropriate case, be found guilty solely on the basis of the evidence of a single complainant. To make such a suggestion would be to “fall prey to the false myths regarding sexual offence complainants as inherently suspect or untrustworthy.” See: R. v. N.S., [2001] O.J. No. 3944 (S.C.J.); R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.) at pp. 347-348, 352-354; R. v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-354; R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.) at p. 8. Moreover, a conviction of an accused may, in appropriate cases, be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt. See: R. v. D.(J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.); R. v. Jaura, [2006] O.J. No. 4157 (C.J.). I only make the observation that the complainant’s evidence in relation to the alleged sexual assault charge stands alone and without any corroboration or confirmation, as a simple matter of fact given the state of the evidence in this particular case. This is a factor that can properly be taken into account in assessing whether or not the Crown has met its burden of proving the guilt of the accused beyond a reasonable doubt. See: R. v. Camp (1977), 1977 CanLII 1092 (ON CA), 36 C.C.C. (2d) 511 (Ont.C.A.) at p. 521.

[82] As a result of these and other significant frailties, I conclude that the complainant’s testimony is largely unreliable and incredible. Her evidence, on which the Crown’s case depends, certainly does not satisfy me beyond a reasonable doubt as to the guilt of the accused in relation to the alleged offence of sexual assault. Accordingly, I am obliged to find the accused not guilty of the charge of sexual assault.

B. The Testimony of the Accused – T.S.

[83] I would have reached this same conclusion based on the testimony of the accused. While there were some frailties in his testimony, his evidence raises at least a reasonable doubt in my mind, especially given that it was supported by the evidence of his father and of Mr. P.B. and the documentary evidence. I am possessed of this reasonable doubt not only in relation to the offence of sexual assault, but also in relation to the offence of criminal harassment.

[84] The accused has a brief but recent criminal record, the details of which were adduced as inextricably bound up with the narrative of events in this case and the probation orders which were admitted into evidence. This criminal record is, of course, relevant in assessing the credibility of the accused as a witness. See: R. v. Corbett, [1987] 1 S.C.R. 670. I have so considered it. I note, however, that the details of this criminal record do not disclose the commission of any offence of dishonesty or deceit, or making any false statements, or any interference with the administration of justice. Accordingly, it is entitled to less significance than if such offences had been prominent on his criminal record. See: R. v. Brown (1978), 1978 CanLII 2396 (ON CA), 38 C.C.C. (2d) 339 (Ont.C.A.) at p. 342; R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont.C.A.) at para. 7-10. In any event, the details of the criminal record of the accused do not cause me to reject his evidence.

[85] Given my conclusions with respect to the testimony of the complainant, and the fact that the testimony of the accused, supported by other evidence, raises a reasonable doubt in my mind as to his guilt with respect to the alleged offences of sexual assault and criminal harassment, I need not expressly review and assess the testimony of the accused in the same detail as I have in relation to the evidence of the complainant. I have, however, subjected the testimony of the accused to the same level of careful scrutiny and analysis that I have employed in my consideration of the evidence of the complainant.

C. The Criminal Harassment Charge

[86] With respect to the alleged offence of criminal harassment, there is no question that the accused repeatedly contacted the complainant during the eight-day time period set out in the indictment (between January 6 and 13, 2010). Indeed, it seems that the accused began to contact the complainant in an effort to rekindle their romantic relationship in late December of 2009. In this regard, I accept the testimony of the accused that, on December 26, 2009, he contacted the complainant and received positive encouragement from her as to the possibility of their reconciliation. The accused testified that the complainant told him that he should contact her if he was ever in Toronto again. It was this encouragement that led the accused to pursue her further, with voice-mail and text message communications in January of 2010.

[87] I also accept the evidence of the accused that, during this time period, the complainant never indicated to him that these communications were bothering her, or that he should stop sending her messages. The accused explained that there had been times in the past when she had not responded quickly to messages, including when she had lost her phone on occasion. It is hardly surprising that, in these circumstances, the accused wondered why the complainant failed to respond to any of his inquiries. As the accused testified, if she did not want to talk to him anymore, and had another boyfriend, all she had to do was say so, and that would have been the end of it.

[88] Of course, as the Crown has failed to establish that the accused sexually assaulted the complainant, the background context for these communications is simply that the complainant began receiving communications from a former boyfriend who seemed interested in renewing their romantic relationship, and whom she had earlier encouraged to contact her.

[89] In these circumstances, while the complainant may have subjectively felt harassed by these communications, I am left with a reasonable doubt as to whether or not the accused knew that the complainant was harassed by these communications, or was reckless or wilfully blind in relation to whether the complainant was harassed. Further, while it is possible that these communications from the accused caused the complainant to subjectively fear for her safety, I am left with a reasonable doubt as to whether or not any such fear on the part of the complainant was reasonable in all of the circumstances of this case. In this regard, it is important to recall that, as the complainant herself acknowledged, there is nothing in the communications themselves that is threatening.

[90] Accordingly, I am left with a reasonable doubt on at least two of the essential elements that the Crown must establish in order to prove the commission of the offence of criminal harassment.

D. Breach of Probation Charges

[91] The Crown has fairly and frankly conceded that, if the accused is found not guilty of the charges of sexual assault and criminal harassment, the accused must also be acquitted of the two breach of probation charges. The Crown’s allegations that the accused failed to “keep the peace and be of good behaviour” were entirely dependent upon the accused having committed at least one of the alleged crimes of sexual assault or criminal harassment. Having concluded that I must find the accused not guilty of those two charges, I agree that I have no alternative but to also find the accused not guilty of the two charges of breach of probation.

V

Conclusion

[92] In the result, I find the accused not guilty on all four criminal charges before the court. The Crown has, in all of the circumstances of this case, simply failed to prove these charges beyond a reasonable doubt.

___________________________

Kenneth L. Campbell J.

DATE: October 25, 2012

COURT FILE NO.: 336/11

DATE: 20121025

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

T.S.

REASONS FOR JUDGMENT

Kenneth L. Campbell J.

Released: October 25, 2012