CITATION: R. v. Martin, 2013 ONSC 7210
COURT FILE NO.: CRIMJ(P) 137/13
DATE: 2013 11 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. M. Morris, for the Crown
- and -
CHRISTOPHER MARTIN
E. Brown, for the Defence
HEARD: November 5 – 7, 2013
JUDGMENT
HILL J.
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding by the Honourable Justice S. Casey Hill directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way
INTRODUCTION
[1] Christopher Martin pled Not Guilty to sexually assaulting and assaulting his girlfriend.
[2] On an application by the defence, the court ruled, pursuant to s. 276 of the Code, certain prior sexual activity between the accused and the complainant to be admissible. That activity was described at 2013 ONSC 6901, at para. 9:
(1) On a date in the last half of September 2012, while residing with A.H. in the residence she shared with her mother and aunt, he joined A.H. in the shower at her invitation. Although A.H. was menstruating, they had consensual sexual intercourse.
(2) When the complainant stayed at the Applicant’s residence on the night of October 15/16, 2012, although A.H. informed him that she was menstruating, they had consensual sexual intercourse.
[3] The court further stated at paras. 19-20:
… the admissibility issue here falls to be determined on the narrower basis of the complainant placing a particular premise for her non-consent in issue. Central to A.H.’s position that, on October 18, 2012, she did not consent to sexual intercourse with her boyfriend with whom she had a dating relationship was the assertion that she would not consensually engage in sexual intercourse for the sole reason that she would not do so during her menstrual period. The alleged prior instances of sexual activity are relevant as directly and essentially connected to the accused’s defence and therefore specific to the case without engaging general stereotypical inferences: see Don Stuart, “Twin Myth Hypotheses in Rape Shield Laws are Too Rigid and Darrach is Unclear” (2009), 64 C.R. (6th) 74, at pp. 75-6.
The potential rebuttal impact of the evidence does not however found the inference that it was, on account of the prior sexual activity, more likely that the complainant would have consented to sexual intercourse on October 18th. The evidence, if accepted, may properly serve to contradict an assertion of non-consent premised on the complainant adhering to a practice of not having sexual relations while on her menstrual period. Beyond avoidance of illegitimate inferences, the evidence of alleged prior sexual activity, if accepted, would have significant probative value not substantially outweighed by the danger of prejudice to the proper administration of justice taking into account the factors described in s. 276(3).
[4] Following the evidence, the court ruled (2013 ONSC 7011) that the complainant was to be recalled to cure breaches of the Browne v. Dunn rule.
FACTUAL BACKGROUND
The Principal Witnesses
[5] The complainant, A.H., testified that she commenced a dating relationship with the accused in early September 2012. She was twenty-one years of age and residing in the basement of a home in Brampton with her mother and aunt.
[6] The accused was aged twenty-six years and working as a roofer. His recall was that he and A.H. began dating in mid to late September.
[7] Christopher Martin has a prior criminal record. As a seventeen-year-old offender, he was found guilty of assault causing bodily harm in Youth Court in 2003. The accused’s adult record is as follows:
2004 ● unauthorized possession of a prohibited or restricted weapon
● possession of a scheduled substance contrary to s. 4(1) of the C.D.S.A.
2005 ● break & enter
● assault
● possession of a weapon for a purpose dangerous to the public peace
● fail to attend court
● fail to comply with Youth Court disposition
2006 ● assault
● aggravated assault
● assault with a weapon
● fail to comply with a probation order
2007 ● assault
2008 ● theft under $5,000 x2
● assault
● breach probation order
2009 ● assault peace officer
● breach probation order x2
● break & enter
● theft under $5,000 x3
[8] A.H. testified that in October 2012 she was 5′3½″ tall and weighed about 195 pounds. She was not muscular. She described the accused as shorter and weighing 160 to 170 pounds with a muscular build. According to the accused’s evidence, in October 2012, he weighed only 125 pounds and was not of muscular build. The accused described A.H. as weighing about 230 pounds and as “a lot taller” than him. She had as much muscle mass as he did.
Cohabitation in September 2012
[9] A.H. testified that in mid-September 2012, perhaps around September 11th, the accused moved into her residence. He stayed in her room. Her menstrual period began three or four days after the accused moved in. In her in-chief evidence, the complainant stated that the accused stayed a week or so before moving out about the middle of the third week of September.
[10] The accused testified that he moved in with A.H. in late September or early October for one week only.
[11] In his evidence, the accused stated that when he returned one day from his roofing job, perhaps on September 29 or 30, he decided to shower – “I jumped into the shower… [A.H.] followed behind me”. When he asked the complainant “why?”, she stated that she wanted to have sex. She came onto him. She was on her period but it was “really light”. In his affidavit filed in support of the s. 276 application, the accused stated that: “… the Complainant invited me into the shower, where we had consensual sexual intercourse. At this time, the Complainant was menstruating”. The complainant denied that this occurred.
[12] In cross-examination, the accused testified that just prior to moving in with A.H., he had sex with her at her place when she was menstruating. He also testified that there were: “Numerous times we had sex when she was menstrating (sic), at her house”. According to the accused, A.H. has a period “every two weeks”.
[13] Under cross-examination, the accused was asked to read over his affidavit after which he gave this evidence:
Q. I am going to suggest … no where does it say that you had sex with her on her period two times in her house.
A. Okay, that’s fine. We can just consider it one time.
[14] During this part of his in-chief examination, the accused also volunteered that he had had sexual intercourse with A.H. at her residence just after he moved in with her. At that time, because she was menstruating, he placed a black t-shirt under her body to avoid getting blood on the bed.
Events of October 14 to 18, 2012
[15] The complainant denied that she had sexual relations with the accused at his apartment on October 14. Her menstrual period, which comes around the same time each month, began mid-afternoon on October 15th. She never has sexual intercourse when menstruating – she finds that notion to be “quite gross”.
[16] In his in-chief testimony, when initially asked whether he had had sexual intercourse with A.H. at his residence when she was menstruating, the accused replied that October 17/18 was the only occasion. Mr. Brown repeated the question more than once receiving the same answer. Later, in cross-examination, the accused have this evidence:
Q. …you’ve had sexual contact with her on her period a number of times on your evidence?
A. That’s two times at her house, one time at my house on October 18th.
[17] In his affidavit filed in support of the s. 276 application, the accused stated that he had consensual sexual intercourse with A.H. while she was menstruating not only on the date of the alleged offence (October 18) but also on October 15/16:
On October 15th, 2012, the Complainant visited me at my residence. She stayed at my residence from the night of October 15th to the morning of October 16th, 2012. During this time, the Complainant and I had consensual sexual intercourse.
On October 18th, 2012, the Complainant told me that she had been menstruating on October 15th and October 16th, 2013 [sic].
[18] In cross-examination, the accused stated that he had sexual intercourse at his home with A.H. two days prior to October 17/18. A.H. was not then on her menstrual period – “no, she was not”. According to the accused:
When she was -- she was -- we had sex and she wasn’t on her period, and two days later she said I brought it back, her period, from having sex.
The cross-examination continued:
CROWN COUNSEL: Q. Then at paragraph five you say:
“On October 18th, the complainant told me she had been menstruating on the 15th and 16th.”
A. It’s....
Q. So you had sexual intercourse with her and your evidence is you didn’t know she was on her period on the 15th when you had....
A. That’s correct.
Q. And she didn’t tell you was your evidence?
A. That’s correct.
Q. All right, but she told you on the 18th?
A. That’s correct.
Q. And how did that come about?
A. Just before we had sex, she went to the bathroom, said that she had to go check. She came back, she said, I’m on my period really light. That was on the 18th.
Q. But she never talked to you about the night before the -- or two nights before the 15th?
A. No.
Q. All right, so if somebody read that with the suggestion or a thought that that might be October 15th a time when you had sexual intercourse with her when she was on her period, that’s not accurate?
A. On the 15th and 16th, it is accurate. She just never told me.
Q. Well, how did you know?
A. How else would you know? I had sex with her.
Q. So you didn’t -- I don’t understand. You -- did you know or did you not know that she was on her period?
A. She did not tell me, no. She did not inform me from her physical -- from her mouth.
Q. Well, where does it say in your affidavit that you knew she was on her period on your own finding?
A. Well, just says my own finding, but it doesn’t -- the word find. I still knew, because I had sex with her…
…I didn’t put in the affidavit - I did have sex with her on the 15th ... and found out that she was on her period by myself, though she does not mention it physically from her mouth on the 15th nor 16th that she was on her period, but does mention it on the 18th.
Q. Well, how did you know on the 15th that she was on her period?
A. Smell, smell and a little bit of blood.
Q. So you had sex with Ashley, on your evidence, you’re telling His Honour she never said anything to you about her being on her period?
A. No.
Q. You knew she was on her period and you didn’t bring it up...
A. No, she...
Q. ...as an issue.
A. It’s the beginning of the end of the period. It’s not -- it’s not that she’s on her period, it’s ending. The way -- by a woman’s body works, it’s totally different than -- any regulations I can even explain. I’m not a woman, I can’t explain their bodies.
Q. I’m asking you to explain why you found out on your own without Ashley telling you she’s on her period on the 15th....
A. Because the menis ....
Q. Let me finish my question. Explain how you find that out and explain how you don’t even bring it up with Ashley?
A. ‘Cause it’s not something you talk about. She’s coming off of -- she was coming off of her period. On the 15th she was coming off her period. On the 18th, I brought it back. Between the 16th and the 18th, I brought her period back.
Q. Where did you get that information from?
A. Pardon me?
Q. Where did you get that information from?
A. What?
Q. That you brought it back.
A. By her mouth.
Q. What does that mean?
A. That she told me that I brought it back.
Q. So now she’s at the end of her period on your evidence on the 15th?
A. That’s correct.
Q. And then, if this is the second period that you brought back on the 18th?
A. That’s correct.
Q. That’s what you are saying?
A. That’s correct.
Q. So out of the two times, the 15th and the 18th, the first time Ashley says nothing about being on her period?
A. That’s correct.
Q. And the 18th, actually on your evidence, stops the physical contact and says I’ve got to check to see if I’m on my period?
A. No, she’s got to check to see if it was -- if it was thick or not, or if it was badly menistrating (sic) - minstrating (sic).
Q. Are you guessing yourself or is this something Ashley....
A. That’s what I’m guessing.
Q. Okay, well, let’s just....
A. Assuming.
Q. …you are telling His Honour that Ashley told you on the 18th of October that she was menstruating on the 15th. Is that right?
A. That’s right.
[19] A.H. informed the court that mid-afternoon on October 17, 2012 the accused came to her home. They decided to “hang out” at the accused’s basement apartment in the townhouse residence. Once at the accused’s house, they watched a movie.
[20] The accused testified that on October 17 when he arrived home from work A.H. was already at his apartment. She had a key.
[21] After the movie, she and the accused walked for about fifteen minutes to the home of her friend and immediate next-door neighbour, T.B. At about 4:00 to 4:30 p.m., they then walked T.B. and her three-year-old son back to the accused’s home where everyone watched a movie together. They then walked T.B. home at about 8:30 to 9:00 p.m.
[22] In her evidence, T.B. confirmed that she had known A.H. for about a month as of October 17/18, 2012. The witness further confirmed that she watched a movie at the accused’s home on October 17 with him and the complainant. The witness testified that she observed both the accused and the complainant consume one or two shots and a beer. In her May 7, 2013 statement to the police, T.B. stated that she knew “they had a few beers” and the accused “was drunk”. She further stated that she did not think A.H. was drunk but, “I know she was drinking beer”.
[23] The accused testified that toward the conclusion of walking T.B. and her son back to their residence he stopped at a friend’s home around the corner from where A.H. resided. He was there about five minutes when A.H. arrived banging on the door and yelling. A.H. was angry accusing him of having flirted with T.B. They argued for a time on the walk back to his house. When recalled to testify, A.H. denied that she banged on the door, yelled, or accused her boyfriend of flirting with her friend.
[24] On A.H.’s evidence, on returning to the accused’s home by 9:30ish, they joined the accused’s landlord, Eugene, on the main floor of the townhouse. They stayed for about an hour before returning to the basement. During that time, to the complainant’s recall, she had two shots of rum while the accused had four or five shots. In her videotaped statement to the police, A.H. stated that the accused had three or four shots. A.H. testified that she felt fine and, although the accused didn’t seem intoxicated, “he said he was buzzed”.
[25] On the accused’s evidence, he and the complainant each had three shots of rum.
[26] A.H. testified that between 11:00 and 11:30 p.m., she and the accused went downstairs to the accused’s apartment where they sat on the couch near the accused’s bed and watched TV for five to ten minutes. She planned to stay the night.
[27] The accused testified that he and A.H. went downstairs by 10:00 p.m. They each sat on the couch but only A.H. watched TV. He did not. On the accused’s evidence, they went to bed at about 10:25 p.m. He and A.H. had “a friendable relationship”. There was respect and honour between them. In cross-examination, although the accused acknowledged that there was more than a friendship – “because [i]t was the beginning of a relationship”, “it can’t be that serious”. The accused was prepared to admit that because they shared a bed, that put the relationship up a notch or two in terms of seriousness.
[28] According to the complainant, once the TV was turned off and the lights were off, she went to bed with the accused. The bed was a mattress on the floor. She was wearing black track pants with an elastic waistline (with no underpants), a t-shirt and a zip-up sweater. The accused wore boxer shorts. In his testimony, the accused agreed with this description of their clothing.
[29] In her in-chief testimony, A.H. stated that the accused “bugged her” for quite a while to have sexual intercourse. She told him “no” as it was a certain time of the month and she did not want to have intercourse. The accused said that he didn’t mind if it was that time of the month but A.H. felt it was “pretty gross”. On A.H.’s account, for about ten minutes, the accused kept asking for intercourse. She then offered oral sex but her boyfriend declined saying it was “not the same as the real thing”.
[30] The accused testified that A.H. kissed and caressed him and offered oral sex. She had his penis in her mouth for thirty-five seconds when he said “no”. He said that he wanted to have sex at which point A.H. said, “Wait, let me go check”. A.H. then left to go to the washroom. In cross-examination, the accused stated that A.H. only spoke of her period when she returned to bed. The accused, also in his in-chief evidence, stated that A.H. said, before going to the washroom, that she was on her period and that it was really light. In cross-examination, the accused stated that: “when she knew that we were going to have physical sex, she returned and told me she was on her period”.
[31] On the accused’s evidence, when A.H. returned from the bathroom she was only wearing her sweater. She stated that her period was “really light”. The accused saw no tampon and one was not discussed. He used a black t-shirt on his bed and they then had consensual sexual intercourse for three minutes.
[32] In cross-examination, when initially asked if he was physically capable of overpowering A.H., the accused replied that: “I could if it came down to the standards, yes, I could have, but did not”. Then a few questions later, when asked if he could pin the complainant and pull her pants down, the accused gave this evidence:
Q. …you’re saying that didn’t happen, but it is certainly possible you would be able to do that, wouldn’t you?
A. Not at the time, given her weight, her height, her size.
[A.H.] was way bigger than me. She could overpower me at that time.
[33] A.H. described being sexually assaulted in these terms. They were lying on the bed. She did not get up to go to the washroom. The accused came half onto her as she lay on her back. With his weight across her torso and his left arm pinning her arms at her sides, with his right hand he pulled her pants down to the area of her knees or just under the knees. A.H. testified that her pants did not come completely off. In her videotaped statement to the police, the complainant stated that the accused took her pants off.
[34] A.H. testified that she tried to struggle and push the accused off and manoeuvre away but was unable to do so. The accused then removed her tampon and put it beside the bed. She told him not to do it. He then came fully on top of her and had sexual intercourse without a condom for five to seven minutes until he climaxed. She did not consent to sexual intercourse. She physically struggled and yelled throughout. At one point, she said that if he did not stop, she would call the police the next day. Despite the fact that she yelled “quite loud”, Eugene did not wake up.
[35] A.H. informed the court that after the accused withdrew and laid beside her, she got up and went to the downstairs washroom to clean up and replace her tampon. When she returned after a couple of minutes to the area of the bed an argument developed. She cursed at the accused. Referring to the assault, she said words to the effect of: “Did you really just do that? Why would you do that knowing how I felt about doing that on my period?” The accused said that it was because he wanted to have sex.
[36] A.H. testified that the accused then brought up the subject of her texting a male person earlier in the afternoon accusing her of cheating on him. He was jealous. A.H. testified that she had texted her previous landlord to whom she owed $300.00 and had explained this to the accused. Although A.H., for the most part, denied the suggestion that she was texting after they went to bed, at a point in cross-examination she gave this evidence:
Q. You got into the bed with him, you are sitting beside him in the bed and you are texting your friend.
A. Yes.
The argument continued about the sex and the texts.
[37] The accused recalled that as they lay in bed, and he saw A.H. using her phone, he asked what she was doing. She replied that she was setting her alarm clock. It was 12:18 a.m. When, at 12:22, the complainant was still using her phone, he again asked what she was doing. She responded that she was setting her alarm. He asked to see the phone. There had been no discussion of texting prior to sex. After the phone was handed over, he saw that A.H. had texted “another man” at 12:18 a.m. The text read: “Ha, Ha, Ha LOL” with a happy face. He then threw the phone at the door causing the cover to come off. In his in-chief evidence, the accused maintained that he was not jealous (“I would not care”) only upset that A.H. had lied to him.
[38] In cross-examination, the accused confirmed that he did not check the alarm feature on A.H.’s phone but went right into her text messages. He did so although he “didn’t care who she was texting”. Because he believed A.H. lied to him, he felt disappointed and “dishonoured”. He was upset but not angry or jealous “[b]ecause it was the beginning of a relationship”.
[39] A.H. testified that she “tapped” the accused in the forehead with three fingers of an open hand. No force was used. A.H. stated that the accused then delivered a closed-fist punch to her left cheek. She smacked him back with an open hand. There was a physical altercation for about five to ten minutes – “it was bad”. Punches were exchanged. She punched the accused once. A.H. testified that she was pushed into the couch and other furniture. Her head struck the wall.
[40] A.H. testified that she spat blood out of her mouth onto the floor after she was punched. She, not the accused, announced that the relationship was over. The accused went upstairs. She gathered up her clothes and her IPOD.
[41] The complainant informed the court that when the accused returned, he told her that the police were on the way. She said she would stay to tell the police what happened. At that point, to her recall, the accused said that the police were not coming. She then realized the accused could not have contacted the police as she had the only phone in the house. A.H. testified that she then said she was leaving – she was not asked to leave.
[42] The accused testified that after he threw A.H.’s phone at the door causing its back cover to come off, she got out of bed and retrieved the phone. She then hit him in the forehead with the phone. He sat on the couch telling her to get out and to not return. A.H. then threw chips and popcorn at him and “beat” him with a bowl. He never punched A.H. He did not push her into a wall or into the dresser. He “screamed” at her to leave. When recalled to testify, A.H. admitted throwing popcorn at the accused but denied hitting him with a bowl.
[43] The accused informed the court that as he went to go upstairs he announced that he was calling the police to which A.H. responded that she did not care as she was not leaving. On the accused’s evidence, he remained upstairs for five to ten minutes before returning downstairs. When he informed A.H. that the police were on the way she repeated that she did not care and that she was not leaving.
[44] According to the accused, he then unplugged A.H.’s phone charger and threw it out of the room. The complainant then retrieved the charger and whipped him with the charger cord as he put his head down between his knees being “that much in fear” of A.H. He then pushed her away. He said, “Get out. It’s done. It’s over … Good luck finding someone who makes you feel the way I do”. At this point, Eugene awoke and stomped his feet on the floor. To the accused’s recall, A.H. then spit at him and on the floor before going up to the main level of the house and leaving.
[45] When recalled to testify, A.H. denied having a phone charger at the accused’s home or striking him with a charger.
[46] The accused testified that, about five minutes later, there was banging on the residence door. Where he looked out he saw A.H. on her phone. Apparently A.H. had forgotten her IPOD. He called out to Eugene not to open the door. A.H. then left on foot.
The Disclosure Process
[47] On A.H.’s evidence, after she left the accused’s home, she walked to T.B.’s house. It was about 2:00 a.m. She was upset. In the five minutes she was there, she told her friend she had been involved in a physical altercation with the accused. Asked in-chief why she did not disclose a sexual assault, she stated that she felt emotionally drained.
[48] In her evidence, T.B. stated that she received a phonecall from A.H. between 11:30 and 11:45 p.m. on October 17th. A.H. was crying and upset. She said she was coming to her house. When the complainant arrived at about 12:30 a.m., she related that she had been hit by the accused in the course of an argument and physical fight. A.H. stayed for only about five minutes.
[49] Asked to describe any injuries sustained, A.H. testified that from the physical altercation, from the accused grabbing her, she had a swollen and bruised cheek, a cut and bruise inside her lip and bruises on her upper thighs.
[50] T.B. testified that she observed A.H.’s face to be swollen on the right side.
[51] A.H. testified that when she entered her own residence, her mother was asleep. Her aunt was awake. Although upset and crying, she told her aunt, M.H., what had happened. M.H. testified that at about 1:30 a.m. on October 18th she received a text from her niece telling her that something had happened and that she was on her way home to tell her about it. M.H. testified that she had a “very close” relationship with her niece.
[52] M.H. testified that when A.H. arrived home at about 1:45 a.m. having ridden the accused’s bicycle, she observed that her niece appeared very disturbed and very upset but not under the influence of alcohol. Her face was a little puffy on one side. The complainant related she was on her period, “things were removed”, and the accused had had sex with her. M.H. understood that the accused had removed A.H.’s tampon.
[53] A.H. testified that at about 7:30 a.m. on October 18th, she told Tanya about the sexual assault. T.B. testified that at about 7:30 to 7:45 a.m. on October 18th, A.H. again came to her house. According to the witness, although A.H. did not appear to want to tell her, and seemed embarrassed, she did report being sexually assaulted by the accused. T.B. testified that A.H. disclosed that she was on her period and that the accused intentionally ripped out her tampon “and attempted to have sex with her”. T.B. testified that she was certain that this is what she was told.
[54] In cross-examination, T.B. was referred to her May 7, 2013 police interview. At that time, the witness informed the police that A.H. reported the sexual assault to her on the night of October 17th, not the following morning:
I got a phone call around midnight not sure. Ashley said Chris tried to have sex with her while she was on her period.
She was crying and upset. She said he tried to pull out her tampon.
[55] When A.H. was recalled to testify, Mr. Brown asked her whether she told T.B. that the accused tried to remove her tampon and tried to have sex with her. The witness’ response was that she told her friend what happened.
[56] A.H. testified that she did not call the police until 10:50 a.m. on October 18th. She wanted to be calmed down, not crying and hysterical.
[57] Peel Regional Police Service Constable Brady Campbell testified that on October 18, 2012, he responded to a radio dispatch call to attend the complainant’s residence respecting an assault allegation. He arrived at 11:48 a.m. and spoke to A.H. outside her residence. A.H. testified that she attempted to be truthful in speaking with the officer. The complainant reported that the night before when she was in bed with the accused at his residence she was playing with her phone and texting. A verbal argument then ensued with her boyfriend about the texting. When recalled to testify, A.H. stated that she had no recall of providing this information to the constable. Constable Campbell testified that A.H. informed him that in the course of that argument, she flicked the accused in the forehead at which point he said, “Did you seriously just do that?” At that point, it was reported, they left the bed and continued the argument which became physical with pushing during the course of which the accused punched A.H. on her left cheek with his right fist.
[58] Constable Campbell observed signs of bruising on A.H.’s left cheek with minor swelling.
[59] Constable Campbell informed the court that after this information was related to him, A.H. reported that prior to the fight she had been sexually assaulted. When he asked A.H. why she had not reported the incident earlier, she responded: “I didn’t know the number”. In the officer’s notes, he recorded that A.H. told him that she was sexually assaulted while in bed with the accused. Constable Campbell recorded the complainant’s account in these terms:
At this time he asked her to have sex. She stated no because I’m on my period. The male then asked several more times [with] the same answer. Eventually the male got mad & took off the Fm’s lower clothing & pulled out her tampon from her private region & began to have sex [with] her for approx. 5 – 8 minutes until he relieved himself. When asked what she did while he was on her, she stated she said stop then layed there [‘til] it was over. When asked why she didn’t leave immediately after she stated “I don’t know”.
[60] When recalled to testify, A.H. stated that she had no recall whether she said this to the officer.
[61] Subsequently, on October 18, 2012, Peel Regional Police Service Constable Kourtney Wilson interviewed A.H. on videotape. The officer testified that she observed bruising to A.H.’s right cheek, a cut inside her upper right lip with bruising or a blood blister at that location, and several small bruises on the upper thighs of A.H.’s left and right legs.
[62] The complainant was examined at a hospital and bodily samples were provided to a nurse.
[63] Asked in cross-examination whether he sustained any injuries on October 17/18, the accused stated that at the time of his arrest by the police on October 20 there were “none of them that they stated, nor did they ask”.
POSITION OF THE PARTIES
The Crown
[64] On behalf of the Crown, Mr. Morris submitted that the prosecution proved beyond a reasonable doubt the only real issue on the sexual assault charge – consent.
[65] It was submitted that the evidence convincingly established that Mr. Martin was a violent, controlling person when he did not get his own way. Counsel in particular relied upon what was described as the unshaken core of the complainant’s account – A.H. would not willingly have sexual intercourse when on her menstrual period.
[66] Crown counsel submitted that A.H.’s testimony was clearly delivered without hesitation. The complainant’s demeanour at trial was said to be supportive of her credibility.
[67] Mr. Morris argued that there is no cause to question A.H.’s credibility on account of the unfolding of her disclosure. Incremental disclosure to T.B. was quite normal given that T.B. became a friend only days prior to the alleged sexual assault. In any event, the evidence demonstrated that within minutes of speaking to T.B., A.H. reported the sexual assault to her aunt and a few hours later to T.B. and to the police.
[68] T.B. did not provide an interview statement for some months and testified over a year after the complainant spoke to her. In these circumstances, that witness’ recall of A.H.’s disclosure, reported in terms of “tried” and “attempted” does not diminish the force of A.H.’s evidence of what occurred.
[69] It was submitted that while the evidence of A.H.’s aunt may have suffered in accuracy on such matters as the timing of the accused’s stay with her family, and whether A.H. was riding the accused’s bike on October 18, 2012, her evidence ought to be believed respecting A.H.’s report, demeanour and injury.
[70] Crown counsel argued that regardless of whether the court accepts A.H.’s evidence as to the timing of her texting, her evidence as to being raped stands apart and is worthy of being believed.
[71] Mr. Morris pointed to the confirming evidence of other witnesses regarding A.H.’s upset demeanour and her injuries.
[72] Crown Counsel submitted that the accused’s demeanour reflected the dishonesty of his account. It is said that he was argumentative and not directly responsive to cross-examination questioning. When the accused’s trial evidence was shown to be inconsistent with his affidavit in more than one respect, he was cavalier and dismissive of the discrepancies. In light of the accused’s demeanour as a witness and the presentation of facts on his part upon which A.H. was not cross-examined, it was apparent that he was presenting off-the-cuff fabrications.
[73] It was further submitted that the evidence proves that the accused, in a non-consensual fight, punched A.H. in the face. In any event, to the extent that consent could be said to have existed, the accused’s use of force was excessive.
The Defence
[74] Mr. Brown, agreeing that consent is the issue respecting the sexual assault allegation, submitted that the complainant’s testimony ought to be rejected as unworthy of belief. In the alternative, either the accused’s evidence raised a reasonable doubt or the totality of the evidence does not support proof beyond a reasonable doubt.
[75] It was submitted that the accused was an unsophisticated witness. There were no real inconsistencies between the accused’s trial testimony and his affidavit. The complainant repeatedly engaged in consensual sexual intercourse while on her menstrual period.
[76] Counsel submitted that A.H.’s credibility was suspect on several bases including the failure to disclose the alleged sexual assault to T.B. immediately after leaving the accused’s home, her animus toward the accused after he flirted with T.B. and later threw her phone, and the material inconsistencies between A.H.’s evidence and the statement attributed to her by Constable Campbell.
[77] On the last point, the defence submitted that the officer accurately noted what the complainant reported. In particular, Mr. Brown emphasized that, based on the statement, A.H. was not resisting during sexual intercourse, she texted in bed after sex, and claimed that no timely report to the police was on account of not knowing the phone number.
[78] It was submitted that the evidence supports an instance of consensual sexual intercourse after A.H. went to the washroom. The accused was uninvolved with the complainant’s tampon. It is said that if A.H. had been sexually assaulted, she would not have returned to text in bed as maintained by the accused and as she stated to Constable Campbell.
[79] It was submitted that T.B.’s evidence should be accepted that A.H. told her that the accused “tried” or “attempted” activities with her. It is said that this description of events by A.H. reflects an evolving fabrication not incremental disclosure of truth.
[80] Counsel argued that M.H.’s testimony was not that of an accurate chronicler. She was confused about timing and wrong that A.H. was riding the accused’s bicycle.
[81] Mr. Brown accepted that the texting episode provoked an argument. There was pushing. The accused did not deliver a punch. Such force would have caused injury beyond what A.H. described. A.H., who was physically larger than the accused, attacked him. He defended himself.
ANALYSIS
General Principles
[82] “Credibility is a central issue in many criminal cases”: R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at para. 55 per Lamer C.J. The court may believe all, none or some of a witness' evidence: R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result), at p. 318; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.)(QL), at para. 5; R. v. Abdallah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4, 5. Accordingly, a trier of fact is entitled to accept parts of a witness’ evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para. 44.
[83] The vast majority of sexual assault prosecutions turn on the evidence of the two principals – the complainant and the accused: R. v. M.(S.C.), [1997] O.J. No. 1624 (C.A.) at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439 at 453-4; Vetrovec v. The Queen (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.).
[84] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87. However, as recognized in R. v. Chittick, 2004 NSCA 135, [2004] N.S.J. No. 432 (C.A.)(QL), at paras. 23-25:
It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.
An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[85] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.), at p. 409. In other words, to use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.)(QL), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 CanLII 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".
See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.)(QL), at paras. 9-17.
[86] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.)(QL), at para. 1 (affirmed 1995 CanLII 95 (SCC), [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal to S.C.C. refused [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.)(QL), at paras. 8, 9; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4.
[87] Assessment of a witness’ credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom – this includes “non-verbal cues” as well as “body language, eyes, tone of voice, and the manner” of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57 (aff’d 2012 SCC 72, [2012] 3 S.C.R. 726). However, a trier’s subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot suffice to found a finding of guilt: R. v. K.(A.) (1999), 1999 CanLII 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.
[88] The fact that a complainant pursues a complaint cannot of course be a piece of evidence bolstering her credibility -- otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 1994 CanLII 8756 (ON CA), 35 C.R. (4th) 340 (Ont. C.A.), at para. 3; R. v. Islam, [1999] 1 Cr. App. R. 22 (C.A.), at p. 27.
[89] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a principal Crown witness, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect – the evidence should, however, be capable of restoring the trier's faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.), at pp. 5-6; R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 429 (leave to appeal refused [1998] 1 S.C.R. vi); R. v. Michaud, 1996 CanLII 211 (SCC), [1996] 2 S.C.R. 458, at p. 459.
[90] It may be that in the circumstances of a particular case, the defence wishes to raise the issue of delayed complaint as counting against the veracity of the complainant's account of assault. The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and will vary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneous complaint: The Queen v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at pp. 64-7; R. v. M.(P.S.) (1993), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-409, see also, R. v. H., [2011] EWCA Crim 2753, at para. 6.
[91] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.), at p. 300 per Lamer C.J.C.; R. v. Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.)(QL), at paras. 2-8; K.(A.), at p. 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.)(QL), at paras. 4, 5. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie may be relevant as well to the accused qua witness: R. v. Laboucan, 2010 SCC 12, at paras. 12, 15, 22; R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 99 O.A.C. 103 (C.A.), at paras. 11-14.
[92] Where significant factual matters testified to by an accused are not put to the complainant in cross-examination for her position or explanation, a trier of fact may, but is not “required by law to give less weight” to the accused’s testimony: R. v. Bell, [1997] O.J. No. 1546 (C.A.)(QL), at para. 3. As to whether there has been non-compliance with the principle in Browne v. Dunn, “[t]he extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case”: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R. v. Blea, 2012 ABCA 41, at para. 35.
[93] Prior consistent statements of a non-accused witness are presumptively inadmissible: R. v. Ellard (2009), 2009 SCC 27, 245 C.C.C. (3d) 183 (S.C.C.) at para. 31; R. v. Stirling (2008), 2008 SCC 10, 229 C.C.C. (3d) 257 (S.C.C.) at para. 5. There are limited exceptions, for example, where the statements contribute to necessary narrative or rebut a suggestion of recent fabrication. Even then, the prior consistent statements are not assessed for the truth of their contents.
[94] An allegation of recent concoction need not be express: R. v. Ellard, at para. 32; R. v. Stirling, at para. 5; R. v. O’Connor (1995), 1995 CanLII 255 (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.) at 294. It may be implicit (R. v. Owens (1986), 1986 CanLII 4690 (ON CA), 33 C.C.C. (3d) 275 (Ont. C.A.) at 280; R. v. Campbell (1978), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.) at 19) and such statements may be “provisionally admissible” to rebut recent fabrication (R. v. P.C., 2007 ONCA 27 at para. 4) subject to how the evidence unfolds. To rebut an allegation of recent fabrication, it is necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication (R. v. Ellard, at para. 32) as such statements may have probative value in illustrating that the witness’ story was the same even before that motivation to fabricate arose: R. v. Stirling, at para. 5, 10. Where admission of prior consistent statements removes a motive for fabrication, this impacts positively upon the witness’ credibility in this limited respect: R. v. Stirling, at para. 11-12.
[95] As with the recent fabrication exception, prior consistent statements admitted under the narrative exception are not admissible for their truth – “mere repetition of a story on a prior occasion does not generally make the in-court description of the events any more credible or reliable”: R. v. Curto (2008), 2008 ONCA 161, 230 C.C.C. (3d) 145 (Ont. C.A.) at para. 35. Such statements may be seen as essential to understanding the unfolding of events, for example, eliminating gaps or explaining why so little was done to terminate the abuse or to bring the alleged perpetrator to justice: R. v. F.(J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.) at 472; R. v. Curto, at para. 33. The prior consistent statements may assist the trier of fact to understand how and when a complainant’s story came to be disclosed which may assist the trier in the assessment of the witness’ credibility: R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.) at para. 37.
The Principles Applied
[96] Counsel correctly observed that this is largely a fact-driven case where credibility is a vital issue in determining whether the prosecution has discharged its burden of proof.
[97] Mindful of the Crown’s obligations to prove guilt on both charges by proof beyond a reasonable doubt on the entirety of the evidence, for reasons developed below I find A.H. to have been a very credible witness and Mr. Martin to be a largely unbelievable witness.
[98] The complainant provided her evidence in a straightforward manner presenting as a witness without an agenda, tearful at times in her testimony, and endeavouring to provide accurate recall. The accused presented as argumentative and at times prone to exaggeration.
[99] A.H. gave coherent, consistent and firmly-delivered testimony that:
(1) her menstrual period occurred on a regular basis each month
(2) her September 2012 menstrual period began two or three days after September 11 and her October period began mid-afternoon on October 15
(3) she did not voluntarily participate in sexual intercourse with a partner because she found it distasteful and gross
(4) she at no time, including October 17/18, 2012, consented to sexual intercourse with Christopher Martin while on her period.
[100] However, careful scrutiny of the complainant’s evidence requires the trier of fact to carefully consider aspects of the evidence which could be said to detract from the reliance upon her testimony including:
(1) A.H. may have consumed, over the course of a few hours on October 17, 2012, as many as five shots of rum and an unknown quantity of beer
(2) motive for false allegations against the accused could include anger that he flirted with T.B., that he challenged her texting activity, that he threw her cellphone, told her to leave and that the relationship was over, and did not return her IPOD
(3) in respect of the alleged sexual assault, A.H. provided Constable Campbell a version of just laying there and not struggling throughout as testified to at trial
(4) although A.H. claimed to have yelled during the alleged sexual assault, there is no evidence that Eugene awoke
(5) the complainant provided different accounts as to whether her pants were pulled down or removed during sexual intercourse
(6) if sexually assaulted, why would A.H. return to bed and begin texting?
(7) the disclosure to T.B. included an allegation of assault, not sexual assault.
[101] The evidence as a whole does not raise a concern that A.H.’s consumption of alcohol impaired her decision-making process on October 17/18, 2012 or her perception or memory of events.
[102] Initially, A.H. was not cross-examined to suggest she was upset that he boyfriend flirted with T.B. When recalled to the witness stand, A.H. denied an argument with her accused in which she alleged that he had flirted with T.B. T.B. was not questioned as to whether the accused paid undue attention to her. Had A.H. been as upset with him as the accused testified, it seems improbable that she would then go to the accused’s home as opposed to her own residence which was steps away. The accused’s evidence on this point is unworthy of belief.
[103] I further am unable to see motive to fabricate an allegation of sexual assault based on the argument about texting. The texting controversy resulted in a physical and verbal altercation. This had been a relationship of short duration. The cellphone remained operable. Failure to retrieve her IPOD considered alone or together with the remainder of the evidence does not reasonably or logically provide a basis to infer the disproportionate response of a false allegation of sexual assault.
[104] The references in the officer’s notes to A.H. stating that saying “no” to the accused proved unsuccessful to prevent being raped, after which she “layed there” until he finished, appears inconsistent with A.H.’s trial evidence as to the degree of resistance she undertook. This discrepancy, however, does not take away from A.H.’s account of never having sex while menstruating and having verbally expressed her lack of consent to sexual intercourse by saying “no” and threatening to call the police. Proof of physical resistance is not necessary to proof of sexual assault.
[105] Eugene was asleep two floors away. He had consumed alcohol prior to retiring to bed. The size of the house, the acoustics, what doors were open or closed, etc. were not explored in questioning. In these circumstances, the fact that Eugene did not awaken to A.H.’s yells has no real probative value.
[106] In light of the totality of the evidence, the difference between A.H.’s accounts of her pants being pulled down or off is not consequential.
[107] There is no doubt that A.H. and the accused argued about her texting activity. While it might appear from Const. Campbell’s notes that A.H. described a scenario of texting in bed after being sexually assaulted, this is far from clear. The constable made his notes after he spoke to the complainant. Indeed, A.H. informed the officer that she was sexually assaulted “just before” the assault during the texting argument. When recalled to the witness stand, A.H. testified with respect to the sexual assault: “I said that at the beginning”. Campbell’s notes are not a verbatim interview statement and it appears were not reviewed for accuracy by the complainant.
[108] Apparently T.B. did not provide her statement to the police until about seven months after October 18, 2012. T.B.’s delayed account to the police, using the words “tried” and “attempted”, itself describing a sexual assault, should not be taken to be inconsistent with A.H.’s version of events when it could reasonably be the result of imperfect recall by T.B.
[109] N.H.’s report of her niece’s disclosure of a sexual assault with tampon removal was not seriously challenged.
[110] The course of disclosure described by A.H. is not inconsistent with her version of events at trial. She had only known T.B. for a month. They did not live together. T.B. described A.H. as upset on the phone and on arrival at her home after midnight. The omission of a report of rape while on her menstrual period cannot reasonably be taken to be evidence of a concocted afterthought or evolving fabrication but rather the type of incremental disclosure which might well be anticipated in such a case. In any event, M.H. confirmed that her niece did report to her being sexually assaulted by the accused. This was minutes after stopping at T.B.’s house. T.B. and N.H. described the complainant as upset. T.B. described A.H. as embarrassed the next morning in describing the sexual assault. The police were contacted about ten hours after the alleged assaults. On the whole of the trial record, no adverse inference to A.H.’s credibility is warranted respecting the course of disclosure.
[111] The accused’s trial testimony respecting sexual relations with A.H. while she was on her period suffered from confusion and inconsistency including the following:
(1) although the accused represented to the court in his affidavit that he had sex on one occasion at the complainant’s residence while she was menstruating, in his evidence in-chief he variously claimed that relations had occurred in such circumstances twice at that location and “[n]umerous times” – challenged in cross-examination, the accused stated: “We can consider it one time”
(2) although the accused maintained in his affidavit that in late September 2012 at A.H.’s home “he joined [her] in the shower at her invitation” and had consensual sexual intercourse while she was menstruating, at trial the accused claimed that A.H. “followed” him into the shower
(3) apart from the alleged shower event, the accused also described sexual intercourse on A.H.’s bed at her residence while she was menstruating, a matter undisclosed in his affidavit
(4) initially in his in-chief testimony, the accused stated that on only one occasion did he have sexual intercourse with A.H. at his residence while she was on her period that being October 18, 2012 – the accused’s affidavit described two instances
(5) in his trial evidence, initially the accused stated, despite a contrary position in his affidavit, that when he had sexual relations with A.H. two days prior to October 18 she was not on her period
(6) the accused testified that he brought A.H.’s period back by having sex with her
(7) the accused variously testified that he did, and did not, know that A.H. was menstruating on October 15/16, 2012
(8) while the accused’s affidavit identifies his source of knowledge that A.H. was menstruating on October 15/16 as being told by her on October 18, at trial the accused stated that he knew this fact on his own on October 15/16
(9) the accused variously testified that prior to leaving the bed to go to the washroom before sexual intercourse, A.H. did and did not discuss her period
(10) the accused claimed that on October 18 he placed a black t-shirt under A.H. – the same account he used to describe an alleged instance of sexual intercourse at A.H.’s residence
(11) the accused testified that he could, and could not physically overpower A.H. on October 17/18, 2012.
[112] Quite apart from the impact of the accused’s prior criminal record upon his trustworthiness as a witness, it was evident that he was struggling to keep his story straight throughout his evidence. There were inconsistencies between sworn accounts relating to the circumstances of sexual intercourse with A.H.
[113] On the accused’s account he had sexual intercourse with A.H. a short time before moving into her house, at her house in the one week he stayed there (September 29 or 30, 2012), on October 15/16 and again on October 18 – and each time A.H. was on her menstrual period. This history has A.H. on her period every two weeks. A.H. testified that her period came monthly at a regular occasion. She was not cross-examined to suggest that she menstruated twice a month or to suggest that sexual intercourse could bring back her period as claimed by the accused.
[114] The accused’s equivocation as to whether he could overpower the complainant was telling. As said, the accused variously testified that he could, and could not, do so. As a roofer involved in physical labour for twelve years moving 75-pound packets of shingles on a roof, it would seem that the accused was in good physical shape and quite able to control A.H.
[115] In her trial testimony, T.B. agreed that she told the police she considered the accused to be drunk on October 17, 2012. A.H. testified that, on that date, the accused told her “he was buzzed”. I find that the accused had consumed alcohol and to a point that could alter his inhibitions.
[116] Mr. Martin was somewhat evasive in describing his relationship with the complainant – friendable? not really serious? the beginning of a relationship? In light of the lack of cross-examination of the complainant by experienced defence counsel on a number of material points, and the content and manner of presentation of the accused’s evidence, it became apparent, indeed transparently so, that the accused was indeed making up a story as he went along.
[117] On the entirety of the evidence, I am satisfied beyond a reasonable doubt that the accused sexually assaulted A.H.
[118] While in their respective testimony the complainant and the accused agreed that an argument and physical altercation occurred after sexual intercourse, their accounts of the precipitating cause and the circumstances of how the dispute unfolded were markedly different.
[119] At trial, A.H. described the friction as an argument about the accused raping her and about her texting activity. On her account, her physical actions against the accused were limited to pushing him, delivering a single punch and throwing popcorn at him. The complainant described the accused as aggressive and powerful enough to, in effect, throw her about the room into and over furniture and into a wall. It is also alleged that he delivered a closed-fist punch to her left cheek.
[120] The accused, on the other hand, acknowledged an argument only about the complainant’s texting activity. He was upset and disappointed but not angry in arguing and ultimately asking A.H. to leave. On the accused’s version of events, the more powerful complainant physically attacked him including beating him with a bowl and a cellphone charger. He adopted a self-defence position without delivering a punch to the complainant.
[121] No other witness appeared at trial to say that he or she saw or heard the argument in which the unlawful assault on the part of the accused is said to have occurred.
[122] As to injuries resulting from the physical altercation, such as it was, there is evidence that there was swelling and/or bruising to A.H.’s face. There is disagreement as to the location of that injury. A.H. described a punch to her left cheek. Constable Campbell observed bruising there. However, T.B. and Constable Wilson injury to the right cheek. The complainant and Constable Wilson further described injury to A.H.’s mouth and bruising of her upper legs.
[123] Mr. Martin maintained that he too was injured. There was no independent confirmation of this.
[124] On October 17/18, 2012, the accused, who had consumed alcohol, was determined to have his own way. He wanted to be in control. He rejected oral sex with A.H. opting to force non-consensual sexual intercourse. He was angry and jealous and upset over A.H.’s resistance and demonstrated independence in the face of his wishes. He was powerful enough to hurt the complainant. He punched A.H. in the face causing swelling and a cut inside her lip. He bounced the complainant around the room resulting in injuries to her legs. I am satisfied that the bruising to A.H.’s face and the bruises to her legs amounted to an excessive and angry use of force by the accused. These injuries were observed by others. The accused was not defending himself when he inflicted these injuries. His account of a beating with a bowl and a phone charger, matters upon which A.H. was not cross-examined when first in the witness stand, were patent inventions.
[125] I am satisfied beyond a reasonable doubt that the accused is guilty of the common assault as charged.
CONCLUSION
[126] On count numbers 1 and 2 in the indictment, the accused is found guilty.
HILL J.
DATE: November 21, 2013