ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 438/13
DATE: 2013-06-12

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Kevin Boyle

Alexander D. Kurke, for the Crown
Stephanie E. Baker, for the Accused

HEARD: May 6, 7 and 8, 2013

REASONS FOR JUDGMENT

Cornell J.:

[1] The accused stands charged with uttering a death threat and an attempt to choke A.L. during the course of a sexual assault upon her. For the reasons which follow, convictions will be entered on all three charges.

Factual Background

Evidence of A.L.

[2] On the evening of September 12, 2013, A.L. and her best friend of four years, R.M., went to a girlfriend’s apartment. At that time, A.L. was eighteen years of age. Although underage, it was A.L.’s intention to go to a club in downtown Sudbury with her three friends. A.L. and R.M. split a bottle of wine at the apartment before leaving, with the result that A.L. said that she was “buzzed”.

[3] With the assistance of fake identification, A.L. gained entry to the club, where she danced and consumed two or three vodka and cranberry drinks.

[4] At approximately 1:30 or 2:00 a.m., A.L. and R.M. returned to the friend’s apartment. Upon their arrival, the apartment was occupied by J.R., K.C. and two unknown males who were subsequently introduced as the accused and his friend, Nolan. After leaving the club, A.L. had nothing further to drink and did not consume any drugs.

[5] The accused asked them for their phone numbers. R.M. provided fake numbers as she did not want anything to do with the accused and his friend. In his evidence, the accused said that he asked for their names and phone numbers to assist his friend, Nolan.

[6] After about forty-five minutes, the accused and his friend left the apartment. Shortly thereafter, A.L. asked R.M. to take her home. R.M. refused and an argument ensued. When R.M. made it clear that she was not about to drive A.L. home at that time, A.L. stormed out of the apartment. She encountered the accused who had yet to leave. She asked the accused for a ride to the Valley (an area about twenty minutes outside the City of Sudbury) in return for $20. The accused responded by saying “a pretty girl like you does not have to pay”.

[7] After dropping off Nolan, A.L. moved from the rear of the accused’s SUV to the front passenger seat. The accused proceeded to drive towards the Valley. Before getting there, he stopped at an industrial building. He asked her to come into the building to have some beer. A.L. refused saying that she was allergic to beer. The accused then proceeded to drive towards the Valley.

[8] During the course of an ensuing discussion, A.L. indicated that she only drank wine and vodka. Upon hearing this, the accused made a U-turn and returned to the industrial building as he said that he had some vodka there. A.L. responded by saying in an assertive voice “no, I want to go home.”

[9] The accused then proceeded to ask A.L. if she wanted to do a line of cocaine.

[10] A.L. was nervous and worried. She began to exchange the following text messages with R.M.:

R.M.                                      A.L.

Did u seriously go home with
them they said they barely made
it here

Uhm hes trying to bring me to
some place:/

I keep ssaying no and yelling at
him

Ya he is obviously

He’s fucked

He like turned around and tried
bringing me back and I freaked

Well are u Going hHome now?

Or where are you

He’s trying to bring me
somewhere to do a line

I’m like freaking out

Well ill pick u up

Where r u

Valley

Just getting into the valley

Is it just u two

Yeah!!

We like do u wanna get out
ill pick you up

U know where the car lot is in
mcrea. He tried like bringing me
into the vacant. Building beside
it and I said no then we kept
driving and he turned around and
tried

Going back

Omg I’m scared

Just passed the valley mall

Call me get out

I’m not telling him where I live.
He’s gonna drop me off at the
hnmermall. That’s it

K the park on elmview

Are you walking home

[11] A.L. proceeded to give the accused directions to a municipal park. She did this because she did not want the accused to know where she lived.

[12] The municipal park in question is a large athletic park with an outdoor hockey rink, tennis courts and a large grassed area in the centre. The accused proceeded to drive to the middle of the park where he stopped on the grassed area. He grabbed A.L.’s phone and took it away from her. He moved from the driver’s seat and got on top of A.L. with his feet on the passenger floor boards facing her. Using his left hand, he proceeded to place two fingers in her vagina. He undid his pants with his right hand, took out his penis and said “suck me”.

[13] She observed his penis through the hole in his underwear. She started crying. She said no.

[14] The accused had placed her phone on the driver’s seat. She saw it light up. Although she was scared, she decided that if she were to give him fellatio, it might distract him enough that she could push the answer button on her phone so that R.M. could hear what was going on. When the accused saw what she was attempting to do, he grabbed the phone and ended the call. He grabbed her by the throat and said “do you want me to kill you?” Although she could breathe, the pressure scared her. She continued to cry.

[15] The accused proceeded to open the passenger door and pull her from the vehicle. He forced her to bend down over the passenger seat. He moved her underwear to one side and tried to insert his penis into her vagina. He was unable to do this as he was unable to become erect.

[16] A.L. continued to cry. She was screaming no and was told to shut up. The attempt at intercourse lasted approximately two to three minutes. A.L. did not fight back due to the threat the accused had made.

[17] The accused then said to her “I thought you wanted sex” to which A.L. replied “no I just wanted a ride.” At that juncture, the assault ended and the accused began to walk around the vehicle to return to the driver’s seat. A.L. used that opportunity to grab her purse and telephone and ran to the enclosed tennis courts, which were approximately ten meters away.

[18] A.L. collapsed once she got into the tennis courts. The accused sped off in his vehicle. A.L. called R.M. who told A.L. that she was at her house. A.L. called 9-1-1 and followed instructions to walk to the street where she was met by EMS personnel and the police.

[19] EMS personnel testified that when they found A.L. at approximately 3:30 a.m., she was crying, shivering, anxious and was in obvious distress. Redness in the neck and upper chest area was noted. Concern was raised as her pulse was 158. She was placed on a stretcher and was taken immediately to hospital.

[20] A.L. was taken by EMS personnel to the hospital. She did not remember the ride as she was still in a state of shock. While at the hospital, she was examined by a sexual assault nurse and gave a statement to the police.

[21] A.L. received numerous injuries during the course of events. Photographs were taken to document the injuries. These photographs depict marks and bruising on her neck, a scratch on her back, bruising on her right arm, red marks on her left arm, red marks and a bruise on her right knee, red marks on her left knee, bruises on both her left and right shins and multiple bruises on both feet.

[22] Brandon Shepitaka was the sexual assault nurse who examined A.L. He took the photographs and documented the injuries which were observed. He noted that there were no injuries in the genital area. Oral and vaginal swabs were taken to assist with DNA analysis.

Evidence of Kevin Boyle

[23] The accused tells a very different story. At the time of these events, the accused was thirty-six years of age. On the evening in question, he was running a poker game in the industrial building in question. After the game broke up around 12:30 a.m., he went to a club in Sudbury where he consumed three “Cold Shots” and two regular beers. He did four lines of cocaine. He then went to a strip club where he had another beer.

[24] After the strip club closed, he proceeded to start to drive home. He noticed a young woman walking. He asked her if she wanted a ride home. She agreed and they went back to her apartment. This was the same apartment where A.L. and R.M. had started the evening. R.M. and A.L. arrived a few minutes later. The accused consumed another Cold Shot.

[25] At some point in time, the accused engaged R.M. and A.L. in conversation. He asked them if they wanted to do some cocaine, but said they would need to produce I.D. to show that they were at least nineteen years of age. No identification was produced and R.M. and A.L. did not consume any drugs.

[26] He agrees that A.L. emerged from the apartment and asked him for a ride home. He agreed that he was to take her to the Valley.

[27] He says A.L. asked him if he had cocaine and said she wanted to do a line. He proceeded to take her to the industrial building for this purpose. When they got there, A.L. said that she was “creeped out” and he agreed to take her home.

[28] After driving away, A.L. once again asked to do cocaine with him and he returned to the industrial building. When he arrived there the second time, A.L. repeated that she was “creeped out” by the place and he proceeded to drive away once again.

[29] He acknowledged that A.L. was using her phone during the course of the drive.

[30] The accused testified that A.L. then directed him to a park near her home. R.M. was to meet her there. After pointing out her house, the accused said she once again asked to do a line of cocaine. He replied “no, the night’s over”. When he refused to provide her with cocaine, A.L. purportedly offered to show him her breasts and offered oral sex.

[31] The accused testified that if he uses cocaine, he is unable to obtain an erection. Having used cocaine that evening, he doubted that she could get him erect. He agreed that if she could get him hard, he would give her a line of cocaine. After approximately one minute of oral sex, he was unable to get an erection. He stated that he was concerned because they were in a public area. The cops could “roll up”, they were in a residential area and he believed they were in close proximity to A.L.’s house. Apart from this, he understood that R.M. was coming to get her.

[32] It was at this point that A.L.’s phone started flashing. He grabbed the phone and tried to answer it to tell R.M. to come and pick her up. A.L. was “crawling over me” in an effort to get her phone. He exited the truck and went to her side of the vehicle. He grabbed her by the arm to remove her. She grabbed the steering wheel to hang on. He then grabbed her by the throat and said “get out bitch”.

[33] Apart from the oral sex, which was consensual, the accused denied engaging in any sexual contact with A.L.

[34] The accused admitted that when he grabbed her by the throat, he was angry and that he exerted a certain amount of pressure.

Admissions

[35] At the beginning of the trial, various admissions were made including jurisdiction, date, place, identification, ownership of the vehicle in question and continuity of the exhibits. It was admitted that a blond hair found in the accused’s vehicle belonged to A.L.

[36] It was later admitted that there was no DNA evidence in support of the alleged sexual assault.

[37] R.M. was the person who was involved in the text message exchange at the time in question. She was under subpoena by the Crown. She did not appear at the trial as she had apparently chosen to go to the Dominican Republic on vacation instead. Rather than delay the proceedings, counsel agreed that pursuant to Section 715 of the Criminal Code of Canada, the evidence offered by R.M. at the preliminary hearing could be used as trial evidence.

Analysis

[38] This is a classic “he said – she said” case. Although the accused and A.L. agree on many of the peripheral facts, they tell very different stories when it comes to the offences which are before the court. In assessing the totality of the evidence which was offered, I am mindful of certain general principles. In R. v. Williams, 2010 ONSC 184 at paras. 56 – 58, Hill J. had this to say:

[56] A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.

[57] Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.

[58] A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.

[39] This is also a case which requires the application of the principles enunciated in R. v. W.(D.) 1991 93 (SCC), [1991] S.C.J. No. 26.

[40] Counsel for the accused pointed out that during the course of cross-examination, A.L. acknowledged that she was not yelling at the accused even though she indicated in her text message that she was. Reliance was placed upon the fact that no DNA evidence was tendered in support of the allegations of sexual assault and there was no evidence of vaginal injury.

[41] The defence put forward several reasons to disbelieve A.L’s testimony. It was pointed out that the park where the assault is alleged to have occurred is a public place. The park is in a residential area. A.L. is alleged to have pointed to a house which she identified as her residence. A.L. testified that she was screaming and crying when the accused was attempting to have intercourse with her, yet no one responded. The accused was likely impaired and was in possession of cocaine. He would not want to do anything to attract attention.

[42] The Crown put forward the theory that the accused wanted to “get lucky” that night, and was attracted to A.L. when he met her. In support of this theory, the Crown points out that the accused picked up A.L.’s friend after he left the bar and drove her back to her apartment. The accused offered to provide cocaine to the occupants of the apartment, but ultimately did not as his moral code prevents him from supplying drugs to anyone who is not old enough to drink. The accused also refused the offer of $20 for a ride home as apparently his moral code is such that pretty girls do not have to pay. The Crown suggests that the accused took A.L. to the industrial building rather than taking her straight home as he wanted to ply her with alcohol or drugs in order to have sex with her. This is supported by the fact that both versions of events acknowledge that the accused took A.L. to the industrial building on two separate occasions. Apparently there is some flexibility in the accused’s moral code in that according to his evidence, he took her to the industrial building after A.L. asks to do a line of cocaine even though she had yet to prove that she was at least nineteen years of age. Despite the fact that he believed her to be under nineteen years of age, the accused’s second effort to get A.L. to enter the industrial building is frustrated when she refused to enter the building because she was “creeped out”. Whether for the purpose of giving her alcohol (A.L.’s version) or for the purpose of doing cocaine (the accused’s version), the accused was nothing, if not persistent, in his efforts to get A.L. into the industrial building.

[43] A.L. testified in a straightforward manner and offered no embellishment when she testified. To some extent, it may even be said that she was unemotional. On the other hand, a very telling exchange took place during the cross-examination of the accused by the Crown. The Crown put his theory to the accused that the goal was to get A.L. drunk or high on the drugs in order to have sex with her. The following exchange took place:

Q. The more intoxicated by drugs or alcohol she was, the better your chances of getting laid?

A. No. Am I that bad looking?

Q. Is that what it’s all about to you? It’s all about what a person looks like? You don’t seem to be taking this seriously?

A. I have been the first four, five months in custody. I’m over it.

[44] The accused admitted to being a drug addict. He admitted to being impaired and under the influence of drugs while he was driving on the evening in question. He admitted to offering cocaine to the occupants of the apartment if they could prove that they were at least nineteen years of age. By his own admission, the accused offered to engage A.L. in an act of prostitution by agreeing to provide her with cocaine if she could get him erect during the act of oral sex. The accused has an extensive criminal record for theft and possession of stolen property. His convictions for breach of court orders and breaches of recognizance demonstrate a clear disregard for judicial authority. When I take all of these factors into consideration including the improbable nature of the accused’s version of events, I find that the accused is not a credible witness.

[45] If the theory of the defence is to be believed, the incidents in question occurred as a result of A.L.’s desire to obtain cocaine from the accused. If that truly were the case, she had the opportunity to do that on no less than two occasions when the accused took her to the industrial building. Rather than do cocaine in such private setting, the accused would have the court believe that A.L. would have preferred to perform oral sex and consume cocaine in a public area in close proximately to her residence.

[46] A.L.’s evidence is entirely plausible. All she wanted was a ride home. Instead, she is taken to an industrial building where the accused makes two attempts to have her enter the premises and consume alcohol or cocaine.

[47] When this occurs, A.L. becomes alarmed and begins texting R.M.. The text messages make it abundantly clear that A.L. is frightened and wants her friend’s assistance. Arrangements are made for R.M. to come to her rescue. The text messages contain no mention of alcohol or drugs, only the fact that A.L. is scared and wants help.

[48] A.L. is compliant because of the death threat and the choking.

[49] The injuries she sustained are consistent with A.L.’s version of events; they are inconsistent with a consensual act of oral sex.

[50] As soon as she escapes from the accused, A.L. seeks assistance by phoning R.M. and calling 9-1-1. When the authorities arrive, her state is consistent with someone who has just been sexually assaulted. She is anxious and distraught. Her pulse of 158 beats per minute is of serious concern to EMS personnel.

[51] Although it is only one factor for my consideration, there was no motive for A.L. to fabricate her evidence nor was one suggested by the defence.

[52] The nature of the contact is consistent with the lack of DNA evidence. The lack of injury to the vaginal area is also consistent with A.L.’s evidence in view of the accused’s inability to obtain an erection.

[53] The weight of credible and reliable evidence is all against the accused. I accept the evidence of the prosecution witnesses and reject the evidence of the accused. The Crown has satisfied the burden which rests upon it to prove each of the three offences beyond a reasonable doubt.

Conclusion

[54] The accused is found guilty on all three counts contained in the indictment.

Mr. Justice R.D. Cornell

Released: June 12, 2013

COURT FILE NO.: 438/13
DATE: 2013-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Kevin Boyle

REASONS FOR JUDGMENT

Cornell J.

Released: June 12, 2013