ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-SA5116
DATE: 2013-12-18
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.D.H.
Walter Devenz, for the Crown
Celine Dostaler, for the Defendant
Defendant
HEARD: December 9 – 13, 16, and 18, 2013.
T.D. Ray, J
Introduction
[1] The defendant is charged with 7 counts arising out of incidents alleged to have occurred on October 24, 2012 in the City of Ottawa involving WR and her daughter GR. Gr is 16 years old. The counts are as follows:
Sexual assault on WR, contrary to Section 271 of the Criminal Code of Canada.
I possess a weapon, namely a knife, for the purpose of committing an offence, contrary to Section 88, subsection (1) of the Criminal Code of Canada.
Without lawful authority did confine WR, contrary to Section 279, subsection (2) of the Criminal Code of Canada.
Without lawful authority did confine GR, contrary to Section 279, subsection (2) of the Criminal Code of Canada.
Did, being at large on a recognizance entered into before a justice and being bound to comply with a condition thereof, namely abstain from communication or association WR and her family, her place of employment or any place they may be at except once in the presence of a police officer to pick up personal belongings, fail, without lawful excuse, to comply with that condition, contrary to Section 145, subsection (3) of the Criminal Code of Canada.
Did, being at large on a recognizance entered into before a justice and being bound to comply with a condition thereof, namely abstain from possessing any weapons, including but not limited to any knives, any firearms, cross-bow, prohibited and every authorization, licence and registration certificate relating thereto shall be surrendered to the police within 48 hours release, fail without lawful excuse, to comply with that condition, contrary to Section 145, subsection (3) of the Criminal Code of Canada.
Did commit an assault on GR, contrary to Section 266 of the Criminal Code of Canada.
[2] The Crown evidence included that of Ottawa Police Constables Dobler, Bond, McEachern, Turgeon, Lorentz, Sgt. Brennan, the complainant WR, her daughter GR, and a nurse, Lindsay Davies. Counsel consented to an order that WR and GR give their evidence from behind a screen and with a support person. GR elected not to give her evidence from behind a screen.
[3] At the conclusion of the Crown’s case, the defendant elected not to call evidence. The defendant and entered pleas of guilt to counts 8 and 11. Convictions were entered accordingly. The Defendant then moved for a directed verdict on counts 4 and 12. Since all parties had closed their case, I reserved my decision on the directed verdict until after submissions by counsel on the case as a whole. Both counsel agreed in submissions that assault causing bodily harm, and simple assault were available as included offences in Count 1.
[4] The Crown sought to lead evidence of what he described as prior disreputable conduct by the defendant for the purpose of showing the nature of the relationship between the complainant and the defendant. It was agreed that I would hear the evidence by way of a blended voir dire. However during the course of the evidence of WR, the defence objected to her giving evidence concerning a particular incident that occurred sometime before October 24, 2012 on the ground that it was the subject of charges which were set to be heard in Quebec; and that leading that evidence would amount to double jeopardy. The Crown argued that the incident had a high probative value since it was connected to the October 24, 2012 incident, and that I should not be concerned with the Quebec case. No authorities were argued. I ruled that the evidence was inadmissible since the prejudice to the defendant was outweighed by its probative value. If the defendant chose to give evidence, he could find himself having to respond not only to the evidence concerning these counts but also concerning the incident which is in the Quebec Court. Theoretically, he could also be cross-examined as well on that incident and that would violate his right to silence as well as his right to require the Crown in Quebec to prove their case. Alternatively, the defendant might feel reluctant to give evidence and that would clearly offend his right to give full answer and defence to the charges before the court. This is not confined to a situation involving a defendant’s rights against self-incrimination.[^1] While we are in separate jurisdictions, I consider that as a Superior Court Judge, I have an overarching obligation to consider and weigh the probative value of evidence as against potential prejudice to the defendant in another jurisdiction in Canada which may affect his Charter rights.
Crown Evidence
[5] Ottawa police Detective Cst Dobler is in the identification section, attended the complainant’s apartment in the early hours of October 25, 2012, took photographs and identified various exhibits which she took into custody including a knife, and two cell phones. She also took photographs of the defendant at the cell block following his arrest. These photographs showed a red stain she said were “consistent with blood” on both of his thumbs, his index finger and on his palms. The photographs also showed a small red stain on the back of his t-shirt. None of the stains were tested.
[6] WR is approximately 43 years of age and was married twice before she met the defendant; and has four children of which J is the youngest. His father was WR’s boyfriend after her two marriages but before she met the defendant. In examination in chief she said that the father of the eldest three children is Sean R. However in cross-examination she seemed to forget the name of her first husband but when reminded, then admitted that he was the father of the eldest. That son is 22; the next two, including GR are 16 and 18. She gave the impression that she sees her children a lot, and said that J and GR live with her half the time. In cross-examination, she denied kicking her kids out of her home on a regular basis when they were younger. She denied that they would frequently come home and find garbage bags with their stuff left out on the street.
[7] WR apparently works as a personal trainer in customers’ homes. She met the defendant at an online dating site, and after three weeks agreed on a date for a first meeting. They met at the Gatineau Balloon Festival. She brought her son, J. They returned to the defendant’s home in Gatineau where she stayed the night.
[8] WR said the first incident occurred within a month. She said the defendant had arrived at her home in a bad mood, had been drinking, and “downed” more beers in her basement. He swore at her, and broke her phone causing her hand to be cut. She said she backed off from the relationship, and although they had discussed going to a Tattoo Exposition at Casino Lac Leamy in Gatineau together, she went alone with a friend. She said that after she arrived, she saw the defendant standing by his truck yelling insults at her. She said that he then followed her and her friend around the Casino until she and her friend went to their hotel room.
[9] Then in November, 2011, WR recalled being at the defendant’s home in Gatineau and drinking heavily. However she denied that the defendant called the police when she appeared to want to drive herself home, and denied that she was drunk. When the police arrived, she said they only wanted her to leave him. However in cross-examination she admitted that the police put her in a cab but she had no memory of them giving her money for the cab ride.
[10] She said that some afterwards, she and the defendant got back together again. The defendant wanted to marry her, and she would not because they had been arguing a lot. Christmas Eve, 2011, she said that the defendant formally proposed and gave her a wedding ring. She accepted. However, she said there were issues all the time. In January, she said she moved from her home into the defendant’s home in Gatineau. She stayed until March when she left.
[11] In that period she said there were constant issues. She said that If they had an argument he would go into his truck in the garage with the engine running and threaten to hurt himself. WR described one incident when the defendant had been drinking heavily, so she had locked her bedroom door and was watching TV with her son J. The lights suddenly went out. She could see that the neighbours’ lights were unaffected. She smelt gasoline fumes and went into the kitchen to find the defendant lying on the floor smelling of gasoline on his clothes and too drunk to get up. So she took him upstairs to the bath and washed the gasoline off. In cross examination she said that while she assumed the defendant had gone to the basement to turn off the breakers, and then gone down again after she saw him on the floor but before she bathed him, he must have gone back downstairs to turn the breakers back on, and had been faking being passed out on the kitchen floor. After that incident she left and went to a temporary apartment, and then permanent accommodation. She said she was afraid he would find out where she lived.
[12] WR said that the defendant kept telephoning her. She said she went back to him a few weeks later because she felt sorry for him – and she loved him. In fact, she said the defendant rented out his house and moved in with her. About three weeks later, July 12, 2012, they were married in Niagara Falls, and stayed there for three days. They had agreed to go camping for their honeymoon the following weekend. However, she said issues arose during the weekend, so she told him he had to leave. She said that on the drive back from the camping trip, the defendant frequently stopped to get a beer from the back of his truck and kept drinking and getting angrier. She denied that he was in fact getting beers for her to drink during the drive. At one point he smashed his truck window with his elbow. She was at the time, concerned about getting back to Ottawa to pick up her son, and she felt he was intentionally trying to make her late. When they got home, she said the defendant smashed her head against the door causing her to fall to the floor, although she volunteered that he probably didn’t mean to do it. . She said every day he would go out and return drunk and mean. She said she asked him to leave, but he refused.
[13] On another occasion, the defendant returned home in a bad mood, came into the living room, turned off the TV that the children had been watching and lay down on the couch. He refused to permit the TV to be turned back on, so she went to the phone to call the police. She said the defendant broke the phone and then left. She said the police arrived and were waiting for him when he came back to get his truck. Under cross-examination she agreed that she had told the police that the defendant fist had a shower when he got home, and agreed that there was nothing in her police statement that the defendant was drunk. She made the defendant remove all of his stuff, and he went to live with a friend. An order was made August 28, 2012 that the defendant’s bail conditions require that he not communicate with WR or her family. In September, the defendant moved to Brador Quebec with his family. She said he returned to Ottawa the first week of October.
[14] WR said that she was aware of the order, and knew it was a problem, but the defendant continued to telephone her and she continued to telephone him. Before going up north he continued to visit her and she continued to visit him. She did not report any of this to the police. After, the defendant left for the north, he continued to telephone her and she continued to telephone him. They also exchanged texts.
[15] After the defendant’s return to Ottawa, WR said the defendant told her that he had lived in his truck for a week, then with a friend, and finally got an apartment near where she lived. She said she visited the defendant at his apartment, and she talked to him on the phone. She said she hid the relationship because there was an order for non-communication. She also admitted that she hid the relationship from her children (except J) because her children were angry with her over her relationship with the defendant, and would not speak to her.
[16] WR said that the defendant called her continuously and when she didn’t answer, he left messages. Over the course of the week preceding the October 24, 2012 incident, she testified that she received almost 60 messages. Unfortunately the day and time recorded on her answering machine, which had been transcribed, had never been set up, and were not correct. The voicemail messages were played and a transcript was admitted into evidence. The defendant’s voice was identified. In many of his messages he sounded extremely upset, frequently incoherent, and frequently under the influence of alcohol. The messages professed his love for WR, and begged her to take him back. The content of several of the messages implied that he was responding to something WR had said to him. In one of the messages, the defendant was heard talking about cutting himself. WR testified that after that he came to her home and she saw bandages. She said that while she had seen the defendant at his apartment during that week that she had told him she didn’t think the relationship was going to work. His issue with her was that he accused her of infidelity and having affairs with other men. While she denied being unfaithful she admitted to having communications with other men. WR said that typically, he would get very angry with her when he was drinking, and then feel very badly afterwards. She said that was the reason for many of his telephone messages. She admitted that she also had alcohol issues at the time, but she “didn’t do stupid things” – implying that the defendant did.
[17] WR said that she had become pregnant with the defendant twice. She had an abortion in August, 2012 because she decided that although she and the defendant had agreed to have a baby, she didn’t think the marriage was going to work. Then she had a miscarriage in October, 2012.
[18] In the evening of October 24, 2012, WR said she had had a couple of beers during supper, and afterwards that she heard the defendant bang on her door. She said she ignored him; then later at approximately 8 pm, the defendant came banging at the door again – saying – “please, please” – “I love you”. She said she looked through the door hole and told the defendant to go away. She said J was in bed. She then unlocked the door and the defendant pushed the door open, grabbed her and pushed her into J’s room. She said the defendant had one hand on her head/face and his other hand on her neck as he pushed her. She said her glasses got broken. She said the defendant pushed her onto J’s bed, while J was outside the bedroom screaming. She said the defendant then pulled down her pajama bottoms and then his own trousers and underwear, and put his penis in her vagina. She said the whole time she kept saying stop, no – don’t do this. She said the defendant quickly ejaculated, got up and pulled his pants up. She said she was kept in the room for a long time - that seemed like hours. He would not let her out of the room while he told her he loved her and wanted her back. In cross-examination she said she didn’t remember if the defendant had left the bedroom to get a beer while they were there, although she identified an empty beer bottle on the dresser as portrayed in a police photograph.
[19] Then WR heard her daughter GR yell ‘Mom, where are you’. She left the bedroom with the defendant, and called out for GR to call the police. WR said the defendant then herded her and GR into the kitchen where they were both terrified for their lives. She said the defendant had his hand on a knife in his pocket, and kept pulling at it – but never out of his pocket. She never actually saw the knife but recognized the end of the handle that was visible. She said that in the kitchen he was threatening her and GR. WR said she mouthed to GR – “he has a knife”. She said the defendant prevented anyone from calling the police or texting, although she then said she saw GR texting on her blackberry, but then denied that GR had sent any texts. WR said that while she remembered telling GR that the defendant had raped her, she could not remember when. The knife was later identified as a folding knife.
[20] Then the defendant insisted WR turn on her computer and show him emails that he thought she had received from other men. The defendant was looking at the computer on the table in the kitchen or on the half wall. When he saw the emails, she said he threw the computer across the room and smashed it. She said that when GR tried to use her phone, the defendant threw it into water in the sink. She said a potted plant on the half wall around the kitchen was knocked onto the floor during the struggling. After that she said the defendant took one of her own kitchen knives which was on the counter in a knife block, held it to his own chest, and told GR to push on it.
[21] GR left the room to check on J, and WR said the defendant started grabbing at her ‘boobs’ while GR was still there. She told him to stop. Then she heard the police at the door. She said the defendant went to the door, looked out the peep hole, came back, grabbed her, and started dragging her toward the balcony door in the living room. The police entered the apartment and she, GR and J left the apartment.
[22] She said she was taken to the Civic Hospital where she was examined. WR was shown photographs taken at the Hospital and said she identified bruises on her neck, swollen cheek, swelling at the top of her nose, swollen lip, redness on her left cheek, scratch on her right hand from the defendant’s nail, and a bruise on her knuckle. While the pictures were of very poor quality, the injuries pointed out by WR were barely visible. She said her eye glasses were broken at the bridge by the defendant when he first grabbed her. She identified from a photo the glasses on the dresser in the bedroom where she said the assault occurred. The photo was quite
[23] WR was shown pictures taken by the Ottawa Police and denied the hair dryer was on the counter at the time they were in the kitchen, and denied the location of one of the plants.
[24] WR admitted to a criminal record consisting of a failing to stop (s 252(1) CCC) conviction in June 2005 at Ottawa. She explained that it was the day she got her divorce, so she got in her car and went to a bar where she had three Smirnoff Twisters, and on her way home ended up on the wrong side of the road, hit someone and left the scene. In cross-examination she denied any other interactions with the police in Canada or the USA. But then finally admitted to having been arrested in Georgia for battery in 1993, and then for battery against a police officer, resisting arrest, and domestic battery in Illinois in 1994. She said her poor memory was because it was so long ago, but then was dismissive of it on the basis that her then husband wanted to get a paint job on his motorcycle and accused her of damaging it. Similarly she seemed dismissive of the leaving the scene conviction because it was simply having a car accident when she was accidentally on the wrong side of the road.
[25] GR is 16 and WR’s third child. She is in Grade 11, lives with her father in Ottawa, and comes to visit her mother overnight every second week. She said that she has never had a very good relationship with WR and only came over to visit her little brother. She said that the older children rarely see their mother. She said her mother is an alcoholic, and becomes very angry and aggressive when she is drinking. She said that it is her alcoholism that is the reason they have no relationship. GR recalled that when the children were growing up, she and her siblings would be kicked out of the house and have their things thrown out to the curb. . She said when WR first met the defendant, she asked the defendant to help WR to stop drinking.
[26] GR said that she knew that the defendant and her mother were not to be communicating after August. She also knew that they were on and off a lot- meaning that they would see each other and then not see each other.
[27] On the evening of October 24, 2012, she said she telephoned her mother but got no answer. She assumed that the defendant was there since her mother would not answer the phone if her were there. GR went over to her mother’s anyway and when she arrived, saw that the door was open a crack – as if it had not been properly closed – which sometimes happened in the past. She pushed the door open, went in and called out to her mother. She said her mother came out from behind J’s bedroom with the defendant behind her. She said her mother looked scared and her shoulders were hunched – but “she often puts on an act like that”. She said she knew J was in the apartment as well. WR looked at the defendant and said “Tell (GR) what you just did to me. The defendant laughed as if he was surprised at the question. Then WR said to the defendant “You raped me”. The defendant laughed again as if he was unsure why she was saying that. GR said “I don’t really think it happened”; and further “At that moment maybe I was believing her, but on reflection right afterwards I didn’t think Chris would do something like that”. GR said that knowing her mother as she does, she can never be sure whether she is being truthful, and never truly believes anything she says
[28] GR said they went into the kitchen. She was trying to text her father so he would know where she was, and was trying to text her friend. In the kitchen, she said the defendant and WR were yelling at each other over match.com, and her mother’s emails to other men. GR said that her mother was exaggerating and faking being scared as she always does when she has been drinking. She (GR) was not concerned. She said the defendant became very angry. She remembered her mother whispering to her “he has a knife”, but she didn’t see it and he never took it out. She said he did not threaten her, and would never hurt her. She said that the defendant was standing in the entrance to the kitchen but was not threatening her to stay in the kitchen, and never told anyone not to leave. She said her mother was sitting down on a chair with her head down.
[29] She said that at some point the defendant tried to take her phone. She resisted and found herself being pushed against the wall. The defendant took her phone and put it in the sink. There was no explanation as to why the defendant tried to take her phone. Then he took it out and put it in rice to try to dry it. The defendant then left the kitchen to get a hairdryer to see if he could dry her phone. After that he took the back off the case and took the battery out to try to put his battery and her SIM card into his phone so she could use it. But her phone was locked so it wouldn’t work. She then went into the bedroom to get her bag to get her IPOD which had texting ability, and then into J’s room where she could get a Wi-Fi signal to send her friend a text to call the police. She said that at no time did she see the defendant grab her mother’s breasts. She said she had become frightened when the defendant got angry over WR’s emails and smashed WR’s computer, and thought the police should be called. In questioning by the Crown, she said she had not spoken to the defendant, his lawyer or any of his family since that evening.
[30] The police arrived 10 minutes later and she went to let them in, and saw the defendant also heading for the door. GR said she then saw the defendant grab her mother by the waist or the body and head towards the living room. He then let go of WR and headed toward the balcony door.
[31] Lindsey Davies is a sexual assault nurse at the Ottawa Hospital (Civic Campus), and examined WR later that morning (October 25, 2012). She took pictures and made notes of physical markings on WR. For the most part, the photos were of such poor quality that virtually none of the witnesses observations were visible on the photographs. However she had notes and markings on clinical notes made at the time and included, bruising and tenderness on her right shoulder, scratch and bruise on her right hand, minor swelling on her left cheek, and swelling on her left lip. She identified finding clear discharge from her vagina which she said was normal after intercourse; and found no evidence of any bruising, or injuries to her vaginal area.
Analysis
[32] On the issue of prior disreputable conduct, I found very little relevant evidence to the issues in the case. The law requires that any such evidence meet a number of criteria before it may be considered as being relevant to the issues.[^2] It is not relevant if the evidence is meant to show the defendant is a bad person. For that reason, such evidence is inherently prejudicial. It is required that there be a degree of similarity between the prior conduct and the conduct forming the subject matter of the charge.[^3] The charge confronting the defendant is sexual assault. There was no evidence of prior conduct between the complainant and the defendant that was violent or violently sexual. The Crown argues that the defendant is shown to have been abusive and points specifically to the telephone messages. The defendant displays a range of emotions in those voicemails from passionate love to anger at the complainant being unfaithful. There was an order in place that there be no communications between them. The complainant could have called the police but didn’t. Instead she chose to telephone the defendant, and to visit him even during the final week at his apartment. He could be excused for thinking that she was okay with the communication. None of their face to face meetings were characterized by violence. Sexual assault is a crime of violence. I am not prepared to accept that any of the prior evidence is material to the charges facing the defendant. However it is material to the evidence of the complainant WR by virtue of her several contradictions.
[33] I found the complainant WR was careful to choose which pieces of evidence that she detailed while professing to have no memory of others. For example, she remembered having ‘three vodka twisters” in 2005 before a hit and run. Yet she claimed not to remember the name of her first husband and father of her eldest child. In fact she didn’t even remember that her eldest child had a different father from the two middle children. I found her to be evasive and non-responsive while being cross-examined. Her manner bordered on being rude. Yet when she wanted to, she was feisty and debated with the defence counsel. She certainly did not give me the impression that she was in any way an abused woman or that she was insecure. Her job as a personal trainer visiting customers in their homes suggests that she is likely an independent minded person. While watching WR give her evidence it crossed my mind that perhaps she was using the screen and support worker as props to further attempt to engage sympathy.
[34] A typical example was WR’s evidence of an incident that allegedly occurred while she and the defendant were living together. She tried to suggest that the defendant had passed out on the kitchen floor, but when she was confronted with the contradictions in her evidence that while passed out he went to the basement to turn off the power, and then went down to the basement again to restore the power – all before she said she had to take him upstairs to bathe him, she changed her story and said he must have been faking while appearing passed out on the kitchen floor. The whole story, while told in dramatic tones, gave the impression of having been entirely concocted.
[35] If as her daughter suggested, WR is an alcoholic, and aggressive when she is drinking, then many of the disagreements between her and the defendant are explained.
[36] The complainant also misled the court about her relationship with her children in order to put herself in a better light. She led the court to believe that she had a good relationship with her children and had GR half the time. I accept GR’s evidence that she sees her mother every two weeks and that WR has no relationship with her eldest two children.
[37] WR gave evidence that she had seen the defendant bleeding from his wrists where he had threatened to cut himself. Photographs of the defendant’s hands and wrists taken within 7 days of her supposed observations showed no evidence of cuts or scarring. I don’t accept that there would have been no visible evidence of cuts or scarring if she had been telling the truth.
[38] I don’t accept WR’s evidence that she was confined to J’s bedroom for what seemed like hours. One of the pictures shows an empty beer bottle on a dresser in J’s room. It could only have got there by the defendant leaving the room to get the beer and returning. WR denied that was the case, then said she didn’t remember. She could hardly have been trapped in the bedroom if the defendant left to get a beer and then returned. There was nothing to stop her from leaving.
[39] I prefer the evidence of GR to that of her mother. There were none of the same histrionics and drama. For a 16 year old, I found her incredibly mature and articulate. She gave her evidence in an even handed and balanced way. While she said she did not have much of a relationship with WR, she was not overtly critical of WR. She said she didn’t believe the sexual assault occurred and that the defendant would not do such a thing. She was there that night. She knew the atmosphere and more importantly knew her mother. She observed the exchanges between WR and the defendant immediately after her arrival. I accept that she interpreted the defendant’s laughing as an indication that he had no idea what WR was talking about. The Crown suggested I should give no weight to her evidence. This was Crown evidence, not proposed or objected to evidence from the defence[^4]. There is no basis on which I should reject her evidence, although I must be careful not to treat her evidence as conclusive concerning whether a sexual assault occurred. She was not in fear for her life, as WR had suggested. To the contrary, her evidence was that the defendant tried to help her get her phone going, and then encouraged her to check on J who was sleeping in another bedroom. She did not feel confined. She candidly admitted to the struggle with the defendant over her phone during which she was pushed back against the wall.
[40] I do however find the defendant guilty of the included offence of simple assault. The markings on WR identified by the nurse were fresh, and while minor did suggest a physical interaction. That interaction likely occurred in the kitchen while WR and the defendant were interacting, and after the police arrived when the defendant grabbed WR as identified by GR and a police officer. The injuries were very minor, and probably any visible evidence would have disappeared after 24 hours.
[41] I don’t accept that the defendant used a knife in his pocket to threaten anyone. No one saw it. They saw only the handle. Even GR did not take seriously her mother’s whispered comment that the defendant had a knife. Again, she was there and was aware of what was happening.
[42] WR had been drinking. The evidence was that she was aggressive and argumentative when drinking. The defendant’s anger at seeing WR’s emails with other men is understandable. He was still her husband. His smashing of WR’s computer is not only not disputed, but was unacceptable conduct on the defendant’s part
[43] I don’t accept that the defendant grabbed WR’s breasts. WR said it occurred in front of GR. GR said it didn’t happen. I prefer GR’s evidence.
[44] In considering the various counts I am obliged to assess the evidence and consider whether I have a reasonable doubt.
Conclusion
[45] In summary, I find that while the sexual assault may have happened, I have a reasonable doubt. The Defendant is therefore acquitted of sexual assault, but guilty of the included offence of simple assault. The injuries were very minor.
[46] As for Count #2, I find that no one actually saw the knife in his pocket because the defendant did not take it out of his pocket. I am not satisfied that the defendant used the knife in his pocket for the purpose of committing an offence. I find him not guilty of Count #2.
[47] The evidence of confinement for count #3 concerns WR on two occasions – once after having sexual intercourse in the bedroom; and again in the kitchen. I am not satisfied beyond a reasonable doubt that WR was in fact or felt confined. There was certainly a vigorous discussion between WR and the defendant in the kitchen, but I cannot say I am satisfied beyond a reasonable doubt that she was in fact or felt confined.
[48] GR denies she felt confined. I find the defendant not guilty of count #4.
[49] The defendant pleaded to counts 8 and 11.
[50] I have great difficulty with count #12. While there may be evidence of a technical assault, it was minimized considerably by GR. She essentially said she felt herself pushed against the wall. It may have been inadvertent. It may not. I have a reasonable doubt.
[51] Finally – I find as follows:
Count #1- Not guilty of sexual assault but guilty of simple assault.
Count #2, #3, and #4, Not Guilty.
Count #8, and #11, Guilty.
Count #12, Not Guilty.
Honourable Justice Timothy Ray
Released: December 18, 2013
REASONS FOR JUDGMENT
Honourable Justice Timothy Ray
Released: December 18, 2013
[^1]: R v Henry, [2005] 3 SCR 609, 2005 SCC 76
[^2]: R. V. B.L. [1997] O J. No. 3042 35 O.R. (3d) 35 1997 3187 @ 49,50 (OCA)
[^3]: Note 2, @paragraph 23 ff.
[^4]: R v Clarke, (1998) 1998 14604 (ON CA), 18 C.R. (5th) 219, 129 C.C.C. (3d) 1 (Ont. C.A.)