ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K.M.
Defendant
William Dorsey, for the Crown
K. Paul Erskine, for the Defendant
HEARD: December 10,11,12, 2012
REASONS FOR JUDGMENT
M.J. Donohue J.
1This case involves the assessment of evidence in a case where the primary witness claims to be unable to remember an incident about which she has previously testified. The defendant is charged with one count of sexual assault; one count of assault; and one count of unlawful confinement alleged to have occurred on April 26, 2010 as against R.B..
2The defendant pleaded not guilty to the charges.
INTRODUCTION
3The Crown led evidence that R.B.’s landlady and her daughter observed R.B. on April 26, 2010 to be distraught and suffering a bruising and redness around her left eye. This was confirmed by three investigating officers with 24 hours of the incident when the landlady brought R.B. to the police station to report the offences.
4R.B. testified at trial that she no longer remembers the events of April 28, 2010 but she affirmed the truth of her evidence at the preliminary inquiry of April 28, 2011. The Crown tendered the transcript of her testimony in chief and in cross-examination as evidence from the preliminary inquiry.
5The defence pointed to evidence, by R.B. and by her landlady that the police statement was given under duress of the landlady threatening eviction if R.B. did not report to the police. The defence confirmed that at the preliminary inquiry R.B. was still residing at the same rental location and she gave evidence that she did not want to testify.
EVIDENCE
(i) Crown Witnesses
6S.P., landlady’s daughter, remembers being at her home on O[…] Drive in Brampton on the morning of April 26, 2010. The house was owned by her mother V.P.. R.B., the complainant, rented the apartment downstairs with her daughter. S.P. testified that she saw R.B. come up the stairs from her apartment, fall on the stairs, crying and holding the side of her face. S.P. observed R.B.’s face to be red and swollen on the left side. She observed R.B. to be upset. S.P. called her mother at work to explain what happened. S.P. says she picked up R.B.’s daughter from school that morning.
7S.P. did not observe anyone in the apartment. She said it is pretty easy to hear what goes on in that apartment. She was unsure whether she had heard a bump or a noise. In some contradiction, she then agreed with her earlier statement to the police that she had been in the second floor shower and it was difficult to hear what goes on in the basement.
8S.P.’ mother, V.P., testified that, on April 26, 2010, her daughter phoned her at work about an incident concerning R.B.. When V.P. came home from work that evening she observed R.B. to be upset and scared and that her face was all bruised. V.P. told R.B. that they had to report it to the police as V.P. did not want to find R.B. dead in the apartment. V.P. said R.B. was to report to the police or leave the apartment, saying, “I don’t want dead people here”.
9V.P. testified that she took R.B. to K.M.’s mother’s residence. K.M., the defendant, was not there. V.P. told K.M.’s mother that K.M. was not welcome on her property. She then took R.B. to the police station. They were referred to a different station. V.P. waited until the early morning till evidence was taken from R.B. and from herself.
10Constable Nick Arakgi testified that he was on duty on April 26, 2010, and he took the report of domestic assault. He arrived at the station at 11:30 p.m. and observed R.B.’s face. He saw her face was swollen and bruised on the left cheek near her left eye.
11Constable Scott King was also dispatched on this matter arriving at the station at 11:26 p.m. on April 26. He spoke with R.B. and noted redness and slight bruising to her left eye. He began to conduct a KGB video interview regarding a domestic assault. Protocol required him to stop the interview when she mentioned a sexual assault in the same incident. Another officer was called in to continue the investigation. Constable King did not observe any other injuries and he did not remember her crying.
12Constable Paul Quashie was the officer brought in regarding the alleged offences of sexual assault and forcible confinement. He conducted the interview at 2:16 a.m. and observed R.B. to be upset and concerned. He saw bruising and redness to her left eye. He did not note any other injuries.
(ii) Initial Evidence of R.B., the Complainant
13R.B., the complainant, testified briefly at the trial. She is 31 and has a daughter aged eight. K.M., the defendant, is the father of her daughter. She has known him for nine years. She describes him as “an involved father, a great father--.”
14When this incident occurred she was not living with the defendant. She rented a basement apartment from V.P.. V.P. lived in the upper two floors with her daughter, S.P. and her granddaughter, Jayda.
15R.B. said she did not recall the exact date of the incident. She remembers she gave a statement to the police, under duress. She said she did not want to do it but her landlady forced her or else she was told she would be kicked out of the apartment. R.B. said she does not remember everything that happened that day. She refused to review her statement and transcript before testifying.
16R.B. stated, “I feel I am a victim but this was forced against me and I have nothing against K.M..” She further stated: “It’s best if we put it behind us to see if we can move on from it.”
17The court ordered R.B. to review her statement and transcript during an adjournment.
18On resumption of the trial, R.B. agreed that, in her police statement that was video recorded on April 27, 2010, that was “what she said”. R.B. also “glanced at” her transcript at the preliminary inquiry.
19R.B. was asked what she remembered from the day of the incident. She thinks she walked her daughter to school. Her daughter was in Grade 1. There was no one in her apartment when she returned. She believes she was scheduled to work at the Apple store that day but did not go to work. Her landlady was at work. S.P. was home and R.B. saw her that morning.
20R.B. said that K.M. came that day to the apartment, but she did not know exactly at what time. She does not recall what they did or what they discussed. She recalls he left in the day but she does not know the exact time.
(iii) Evidence of R.B. on Voir Dire on Admission of Police Statement and Preliminary Inquiry Transcript as Evidence based on Indicia of Necessity and Reliability
21R.B. stated under cross-examination that she was taken to the police station by her landlady although she did not want to go. She said she would be evicted otherwise and she had nowhere else to go to live. Her apartment was what she could afford. She agreed she was scared about where she was going to live.
22At the trial, she said that at the police station she did not want to press charges or give a statement. She agreed she was worried if she told the police nothing happened that her landlady would find out and she could not live there anymore. When questioned by the Crown, she agreed that her landlady did not tell her what to say to the police. She agreed the police warned her that if she gave false information she could go to jail. R.B. said she was not lying about anything and she told the police what she remembered.
23At the trial, R.B. said she did not want to be at the preliminary hearing. She felt pressured to testify. She said she felt pressured to say what “they” wanted her to. She agreed that she was worried she would get in trouble if she did not say anything. She agreed that she was worried she would be the one to go to jail. She was worried about the daughter she must care for.
24When questioned by the Crown at trial, R.B. agreed that she told the truth at the preliminary inquiry.
25The evidence from the preliminary inquiry was admitted following the voir dire.
(iv) Evidence of R.B. at the Preliminary Inquiry April 28, 2011
26At the Preliminary Inquiry R.B. was affirmed. She gave her evidence and was cross-examined.
27R.B. testified that she and K.M. had broken up a couple of weeks before April 26, 2010. On that day around 9 a.m. he phoned her and he was at her apartment door. She said she let him in. They talked about reconciliation of their relationship. She said she did not wish to do so. He tried to hug her. She did not want him as she was seeing somebody else at the time.
28The discussion began in the living room and then moved to the bedroom. They were sitting on the bed. He tried to kiss her and she told him she did not want him to. She was angry at him. He began to touch her and she said she did not want to do anything. She said she “started off nice at first and then was trying to be more assertive.” She tried to push him away.
29She was asked what K.M. said at this time. She did not remember and was given her police statement to review. Her memory was refreshed and she recalled that he said, “Why can’t I have you?”
30He tried to take her clothes off. She thought she was probably wearing shorts and a t-shirt. She was trying to pull them back on. Eventually, he got her shorts down because she had stopped struggling as she was exhausted from trying to pull her clothes back on and up. She tried to keep her legs closed. She recalled a lot of pushing and struggling.
31He had vaginal sex with her. He did not use protection. She said she just laid there.
32Afterward she was upset and told him to get out. He did not leave. He looked in her drawer where he found condoms and a bikini. He asked her where she got them from and she told him it was not his business.
33R.B. stated that he began hitting her with an open hand on the back of her head and across her face once or twice. He covered her mouth as she was screaming. She pried his hands loose because she couldn’t breathe. She said “I’ll tell you what you need to know if you just let me breathe.”
34At this time they were on the floor. He had one hand on the back of her head and one hand over her mouth and nose.
35When he let go she said she tried to go upstairs to get some help. She said, “I’m going to tell the police about what happened.” She said he grabbed her hand and pulled her to the couch saying, “Don’t go upstairs.” He held his hand on her jaw. She thought she was on the couch about 10 minutes.
36He then took the bikini. She said she became upset and jumped on his back to try to take it back from him. He flipped her off and she ended up on the floor.
37At this time, R.B. said he grabbed her head and asked if she wanted her head on the tile. She said she answered no. Then he left.
38R.B. says she got up off the floor, went to the top of the stairs and called for the landlady, S.P.. The landlady’s daughter, S.P. was home and saw her on the floor and asked what had happened. R.B. described herself as “distraught”.
39She testified she went to work that day but did not work her shift because her face was bruised and swollen and she was crying. A co-worker got the manager who said it was okay to not work her shift. She returned home.
40R.B. said she did not want to report to the police but her landlady made her. On the way to the police they stopped at K.M.’s mother’s home.
41Under cross-examination, she agreed that she and K.M. had broken up a week before. She said she let him in the apartment that day to talk about getting back together because she still had feelings for him.
42She confirmed that they began their discussions in the living room and she went into the bedroom on her own. She was not forced there.
43She agreed that in her police statement she described K.M. trying to take her pants off rather than shorts. She stated then, “It still doesn’t negate the fact that they were being taken off without my consent.”
44She agreed that K.M. did not hit her before or during sex nor did he cover her mouth at that time. During sex R.B. said she was not “screaming” no but she was “saying” it.
45Under cross-examination R.B. denied that the defendant had stayed the night before and that they had had consensual sex.
46Her testimony was that she had been wearing shorts that K.M. removed. She was cross-examined that she told the police that the defendant tried to remove her pants. At this point under cross-examination R.B. stated she did not recall everything but, “it still doesn’t negate the fact that they were taken off without my consent.”
47When he hit her she began to scream because it hurt. He covered her mouth at that point.
48She did not call the police herself all day.
(vi) Further Evidence of R.B. at Trial
49R.B. confirmed the three photographs were of her as taken at the police station April 27, 2010. She confirmed they showed redness on the left side of her face. She testified that she did not recall how it happened. She did not receive any medical treatment.
50R.B. said she and K.M. have been in a relationship on and off for nine years. She hopes to reconcile with K.M. in the future. She said these charges are preventing that. She said, “this was an isolated thing blown out of proportion.” She does not feel he is a criminal. She loves him and wants to move on.
51She testified that, as of April 26, 2010, their relationship was a bit rocky. He was not living with her. He helped with money for her daughter’s activities and clothes. He now sees his daughter every other weekend as she lives some distance away and has to coordinate transporting her daughter down here and back. R.B. has no concerns about him as a father.
52At the time of the preliminary inquiry she confirmed she was still living at O[…] Drive. She believes, however, that she was getting ready to move from there. She was living between two places.
53Under cross-examination at trial, R.B. agreed she did not remember if K.M. was at her apartment on that day. She agreed that if, hypothetically, he had been there it was possible they had sex. She agreed that K.M. would not have forced sex on her and she would have consented if it had happened. R.B. agreed that, hypothetically, if the defendant was there that day he would not have hit her. She testified that on April 26, 2010 at no time did she feel she could not leave or was preventing from leaving by anyone.
ANALYSIS OF ASSAULT CHARGE
54The defendant did not testify nor lead any evidence. I do not draw any negative inference. The burden rests with the Crown to prove each of the charges beyond a reasonable doubt.
55I am obliged to consider what evidence the Crown has led that is accepted and whether that evidence that I do accept proves each charge beyond a reasonable doubt.
56There is evidence of injury to R.B.’s face in the photographs, by the two independent witnesses and by the three officers who observed her within 24 hours of the incident.
57There is evidence that R.B. was taken by V.P. to K.M.’s mother’s home and then to the police on the day of the incident. R.B. testified at the preliminary inquiry that the defendant hit her head and face and it hurt. She testified at trial that at the inquiry she told the truth.
58The defence argues that at trial R.B. said she did not remember how she got the injury to her face. This is consistent with all her testimony at trial that it was a blur and she wished to move on. I do not find it inconsistent with the photographs at the police station and her affirmed evidence at the inquiry.
59The defence points out that V.P. exaggerated the injury by saying R.B.’s entire face was bruised when it was clear it was not. S.P.’ testimony was otherwise measured and clear in timing and particulars of what occurred that day. It was consistent with the complainant’s evidence at the preliminary inquiry.
60Considering the complainant’s evidence overall, and the clear confirmation of the injuries, in the context of her prior testimony that they were caused by K.M., I am satisfied beyond a reasonable doubt that the complainant, R.B., was assaulted by the defendant, K.M..
61The defendant must be found guilty on the charge of assault.
ANALYSIS OF SEXUAL ASSAULT CHARGE
62R.B. disclosed the sexual assault to Constable King after 1:07 a.m. when he commenced the interview on April 27, 2010. This is within 24 hours of the alleged offence.
63At the preliminary inquiry R.B. was cross-examined on this issue. She denied she had consensual intercourse. At trial she said she did not lie. She said she told the truth at the preliminary hearing.
64The defence argues it is a trial by paper, that the court could not assess the complainant’s demeanour at the preliminary hearing when testifying.
65I did get to assess the complainant’s demeanour at trial when she said she did not remember the events of that day. She spoke low, looked down, and covered her head with her hand.
66Having seen and observed the complainant on three different days, I was able to have the opportunity of assessing her demeanour in questioning.
67R.B. made it clear that she did not wish to testify. I find that she was making an effort not to remember the events of that day. She did not make a genuine effort to refresh her memory by reading her preliminary transcript.
68I find her wish to reconcile with the defendant was interfering with her effort to recall the events of the alleged offences.
69The defence points out that R.B. did not wish to go to the police and only went at the insistence of her landlady. The matter was dealt with initially as an assault simpliciter. It was not until the early morning of the next day that the matter of the sexual assault came to light. I have no evidence that she disclosed the sexual assault to either of the S.P. or anyone until the discussion with Constable King. I find that the complainant was not compelled or forced to report the sexual assault.
70The short delay in disclosing this part of the assault was not canvassed but it would not be proper in this case to draw an adverse inference, given her overall reluctance to disclose anything negative about K.M..
71I have to determine whether the evidence at the preliminary inquiry is ultimately reliable, in whole or in part.
72R.B. testified at trial that she had not wanted to testify at the preliminary inquiry and she was pressured to do so. She was still living at the O[…] Drive address. She stated, however, that she was moving from there and was between two places. Although she reported the matter to the police in fear of being evicted, the evidence is that at the preliminary inquiry that was not an issue.
73In cross-examination, at trial, defence counsel suggested that she was worried about going to jail herself at the preliminary inquiry. R.B. agreed.
74Although R.B. stated at this trial that she was pressured to testify at the preliminary inquiry, a reading of her evidence in chief and under cross-examination shows a sincere willingness to get the facts straight and divulge all the events of that day. She was asked to refresh her memory from her police statement and was clear when she could confirm some facts and when she could not remember other facts. Under cross-examination, with no prompting, she offered: “Well, it was still not consensual.”
75The defence argued that there were two competing versions of the evidence, without precisely identifying each. It is fair to assume that he was suggesting the first version was the evidence set out in the preliminary inquiry. The second version would then be as follows: she did not wish to testify; she wished to move on; she loved the defendant; she did not remember what happened that day; she told the truth to the police and at the preliminary inquiry; if, hypothetically, the defendant had been at her apartment that day their sex would have been consensual and he would not have hit her.
76The defence argued that if the court did not accept that the complainant’s evidence that she could not remember that day, then it could not accept her evidence that she told the truth at her preliminary inquiry. The court, however, is at liberty to accept some evidence and not others and to weight credibility of the witness.
77I am satisfied, based on all the evidence of the preliminary inquiry by the complainant, which was cross-examined, and based on my assessment of the demeanour of the complainant at trial, that the defendant is guilty of sexual assault.
78Accordingly, the defendant is also found guilty on the charge of sexual assault. I convict the defendant of sexual assault of R.B. on April 26, 2010.
ANALYSIS OF UNLAWFUL CONFINEMENT CHARGE
79The Crown relies on the definition set out in the Supreme Court of Canada case of R. v. Luxton 1990 83 (SCC), [1990] 2 S.C.R. 711, which is “physical restraint contrary to the wishes of the person restrained or depriving the person of her liberty to move from one place to another.”
80If I accept that R.B. wished to go upstairs to call the police but was physically forced by the defendant to come back and sit so that she could not do so then the charge is made out.
81At trial, R.B.’s evidence was that on that day she never felt she could not leave her apartment, nor did anyone prevent her from leaving her apartment.
82Her evidence that when he went to leave she jumped on his back to retrieve her bikini is inconsistent with her evidence that he confined her with physical force.
83Ambiguities in the evidence must be resolved in favour of the defence.
84I find the evidence is not strong enough for me to form a safe basis for conviction; I am not satisfied beyond a reasonable doubt.
85I find the defendant not guilty of the charge of unlawful confinement.
86Accordingly, I have endorsed the record as follows:
Counts 1 and 2: Finding of Guilt;
Count 3: Finding of Not Guilty.
M.J. Donohue, J.
Released: March 1, 2013
COURT FILE NO.: CR-11-1118-00
DATE: 2013-03-01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
K.M.
REASONS FOR JUDGMENT
M.J. Donohue, J.
Released: March 1, 2013