ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-14-058
Date: 20140523
BETWEEN:
HER MAJESTY THE QUEEN
Ms L. Fritzley, for the Crown
- and -
BRANDON HESLINGA
Mr. G. Deakin, for the Defence
Defendant
Heard: May 22, 23, 2014
REASONS FOR JUDGMENT
Conlan J.
INTRODUCTION
[1] Brandon Heslinga was tried before me, without a jury, in Owen Sound on May 22 and 23, 2014.
[2] Mr. Heslinga is facing four criminal charges: two counts of sexual assault, one count of assault and one count of uttering a threat to cause bodily harm. All of the alleged offences occurred in October 2013 and against the same victim, J.M.
[3] This was a short trial, with only two witnesses for the Crown (the complainant and a police officer) and the accused for the defence. The evidence lasted about one full day.
THE OFFENCES
[4] Counts 1 and 2 allege that Mr. Heslinga sexually assaulted J.M. For me to find Mr. Heslinga guilty of sexual assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Heslinga intentionally applied force to J.M.;
ii. that J.M. did not consent to the force that Mr. Heslinga intentionally applied;
iii. that Mr. Heslinga knew that J.M. did not consent to the force that Mr. Heslinga intentionally applied; and
iv. that the force that Mr. Heslinga intentionally applied took place in circumstances of a sexual nature.
[5] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Heslinga not guilty of sexual assault.
[6] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Heslinga guilty of sexual assault.
[7] Count 3 alleges that Mr. Heslinga assaulted J.M. For me to find Mr. Heslinga guilty of assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Heslinga intentionally applied force to J.M.;
ii. that J.M. did not consent to the force that Mr. Heslinga intentionally applied; and
iii. that Mr. Heslinga knew that J.M. did not consent to the force that Mr. Heslinga intentionally applied.
[8] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Heslinga not guilty of assault.
[9] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Heslinga guilty of assault.
[10] Count 4 alleges that Mr. Heslinga threatened J.M. For me to find Mr. Heslinga guilty of threatening, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Heslinga made a threat to J.M.;
ii. that the threat was to cause bodily harm to J.M.; and
iii. that Mr. Heslinga made the threat knowingly.
[11] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Heslinga not guilty of threatening.
[12] If I am satisfied beyond a reasonable doubt of each of these essential elements, I must find Mr. Heslinga guilty of threatening.
THE EVIDENCE AT TRIAL
J.M.
[13] J.M., 35 years old, was in a relatively short-term relationship with the accused.
[14] On September 27, 2013, J.M. had surgery on her uterus. Her post-operative instructions, which she told the accused about, included abstention from any sexual activity for two weeks.
[15] According to J.M., at about 2:30 a.m. on October 4, 2013, she awoke at Mr. Heslinga’s place to find the accused having vaginal intercourse with her. She is normally a heavy sleeper. She tried to push him off and told him to get off, but he did not do so. He pinned her wrists down on the bed. After two or three minutes, he ejaculated inside of her. She had a shower and then went back to bed, beside Mr. Heslinga.
[16] For those two or three minutes, J.M. was “groggy”. It took her a while to focus.
[17] J.M. testified that vaginal intercourse with Mr. Heslinga while she was sleeping could have occurred before, unbeknownst to her – it would depend on how heavy she was sleeping.
[18] According to J.M., sometime in the morning on October 11, 2013, she and the accused were talking. She had stayed over at his place the night before. Mr. Heslinga told her that he had “fondled” her in the middle of the night; he put his hand down her pants and “played” with her, however, she did not respond. J.M. has no recollection of that at all.
[19] J.M. did not consider going to the police after either the October 4 or the October 11 alleged incidents. Further, between the 4th and the 11th of October, she continued to stay some overnights at the place of the accused, even though she could have stayed with her brother.
[20] According to J.M., on October 17, 2013, in the early evening, Mr. Heslinga approached her in the downtown core of Owen Sound. She told him to leave her alone, however, the accused followed her to the Farmer’s Market building. They were face to face. He was angry. He said that he wanted her back. She said no. He was getting angrier and had his fists clenched at his sides. She was scared. She had her back to the wall of the building.
[21] Mr. Heslinga raised up his hand in a closed fist. He swung; she turned her head to the right; and his fist struck J.M. in her left eye area.
[22] The punch hurt J.M. She was injured as a result – bruising, haemorrhages and some blurred vision (the latter noted after October 18, 2013, which is why she did not tell the officer about the blurred vision).
[23] After the punch, among other things, the accused said words to the effect “you better not tell anybody what happened; if you do, you will regret it”. Mr. Heslinga said that in an angry, yelling voice.
[24] J.M. does not think that the accused meant to hit her. She thinks that he meant to hit the wall, as he has done before.
[25] J.M. took the threatening remark seriously. She testified that she thought it meant that he would do something similar to what he had just done if she told anybody.
[26] The following day, on October 18, 2013, J.M. went to the police station. Her initial complaint was about what happened the evening before. During the course of the interview, she disclosed the two alleged sexual assaults that occurred earlier in October 2013.
[27] Constable Houston confirmed in his testimony at trial that J.M., during her interview on October 18, 2013, mentioned the alleged sexual assaults only after he specifically asked her about sexual assaults. He asked that question as part of the regular domestic violence interview protocol. Earlier in the interview, J.M. answered in the negative as to whether there had been any prior history of domestic violence.
[28] According to Constable Houston, J.M. was “reserved” and showed little emotion during her interview on October 18, 2013.
[29] That evidence did not surprise me at all – she was the same at trial.
The Accused
[30] Mr. Heslinga testified at trial. He denied any criminal wrongdoing. The following instruction applies to each and every charge against the accused.
[31] If I accept Mr. Heslinga’s evidence that he did not commit the offence in question, then I must find him not guilty. If I do not necessarily accept his evidence but it leaves me with a reasonable doubt about his guilt, then I must find him not guilty. If his evidence is neither accepted by me nor leaves me with a reasonable doubt, I must find him not guilty unless the evidence as a whole at trial which I do accept convinces me of Mr. Heslinga’s guilt, beyond a reasonable doubt.
[32] According to Mr. Heslinga, the alleged assault and threatening remark at the Farmer’s Market building on October 17, 2013 are complete fiction. He did not see J.M. at all that evening. He left work at Zehr’s in Owen Sound around 7:15 p.m.; he walked home and arrived there at about 7:45 p.m.; he later visited a coffee shop downtown and another restaurant downtown.
[33] In terms of the alleged sexual assaults, Mr. Heslinga admits that J.M. stayed overnight at his place October 3/4 and October 10/11, 2013. But he did not have sexual intercourse with J.M. in the early morning hours of October 4. He did not fondle her while she was asleep on October 10/11. And he did not tell J.M., on October 11, that he had fondled her the night before.
[34] Specifically, on October 4, 2013, after J.M. fell asleep, Mr. Heslinga watched television and, between 2:00 and 2:30 a.m., went for a walk outside. He watched some more television after the walk and eventually fell asleep around 3:30 a.m.
[35] On October 11, 2013, after J.M. fell asleep, Mr. Heslinga, before he fell asleep, watched television and went for a walk outside for about one hour.
[36] Much of the other testimony of J.M. was agreed to by the accused, including items such as: the timeframe of their relationship; her surgery on September 27, 2013; her advising him about the need to abstain from sex for two weeks following the surgery; J.M. moving her stuff out of Mr. Heslinga’s place on Thanksgiving weekend; their encounter at Pizza Pizza; the projection clock in Mr. Heslinga’s room; and several other matters.
[37] Mr. Heslinga admitted in his testimony that he has had temper and anger management problems.
ANALYSIS
[38] I, of course, may accept all, some or none of a witness’ evidence.
[39] I must keep in mind that the verdicts may be different across the various counts.
[40] And I must not fall victim to simply choosing one version over the other. I must respect the burden and standard of proof.
[41] Regarding the alleged sexual assaults, corroboration is not required, however, the lack of corroborative evidence may always be considered by the trier of fact in terms of whether there exists a reasonable doubt. R. v. Saulnier (1989), 1989 7150 (NS CA), 48 C.C.C. (3d) 301 (N.S.C.A.).
Sexual Assaults
[42] Regarding the alleged incident on October 4, 2013, I do not necessarily believe the evidence of the accused, however, I have a reasonable doubt about whether Mr. Heslinga raped J.M. while she was sleeping.
[43] First, I am concerned about the delayed reporting. Courts must guard against stereotyping and exacerbating myths about how victims of sexual assault ought to react. But, in this case, we know exactly how J.M. reacts to being victimized by crime – she goes to the police right away, as she did on October 18, 2013. Her failure to do so after October 4 makes me pause.
[44] Second, I am concerned about the admitted grogginess and lack of focus on the part of J.M. at the time of the alleged crime. Those things give me reason to doubt the reliability of her observations.
[45] Those concerns, coupled with Mr. Heslinga’s adamant denial, collectively give me a reasonable doubt.
[46] Regarding the alleged incident on October 11, 2013, I do not necessarily believe the evidence of the accused, however, I have a reasonable doubt about whether Mr. Heslinga sexually touched J.M. while she was sleeping.
[47] First, I am concerned about the delayed reporting, for the same reason stated above.
[48] Second, I am concerned about the plausibility of Mr. Heslinga having made the alleged confession to J.M. Why would he say that and implicate himself without any complaint by his girlfriend? It does not make common sense to me. Further, having listened to the accused testify and having heard his vocabulary, I have difficulty accepting that he would have used the word “fondling” or “fondled”, as alleged by J.M.
[49] Those concerns, coupled with Mr. Heslinga’s adamant denial, collectively give me a reasonable doubt. I commend the Crown, Ms. Fritzley, for acknowledging that it would be dangerous for the Court to find Mr. Heslinga guilty of the alleged sexual assault on October 10/11, 2013.
Assault and Threatening
[50] Regarding the incident on October 17, 2013, I have no reasonable doubt. The Crown has proven those two charges to the requisite standard.
[51] First, I reject Mr. Heslinga’s testimony as to what happened on October 17. I do not believe it. It does not leave me with a reasonable doubt. I say that because it was inconsistent on a key point and seemed manufactured, not just because it stands in direct contradiction to what J.M. said, which evidence I accept.
[52] Mr. Heslinga was inconsistent as to how long it took him to walk home from Zehr’s. He first said 45 minutes and later said at least 45 minutes. He later still, in cross-examination, said 30 minutes that evening because he was walking unusually fast due to the light rain. Such an inconsistency may not, in another case, cause me much difficulty, however, I think that the accused was, initially, manufacturing his evidence to put himself away from the scene of the crime at around 7:30 p.m.
[53] In terms of the Crown’s evidence, it is powerful. J.M. gave much more detail than she did with regard to the two alleged sexual assaults. She was not groggy or unfocussed at the time of the incident. She did not say anything in her description of what happened which strikes me as lacking common sense. She was unshaken. Her evidence is consistent with other evidence at trial, such as Mr. Heslinga’s admission of a temper and anger management problem – remember that she said that he got angrier and angrier as the exchange went on. Her evidence is also corroborated by the photo marked Exhibit 1, in terms of the injury to her left eye area.
[54] I disagree that J.M. was not a credible witness with regard to her story that she was going from her brother’s place to Tim Horton’s around the corner but yet, according to her, ended up out of the way and down the street near City Hall when she first saw the accused. The evidence of J.M. was not necessarily that she was going straight to Tim Horton’s from her brother’s place. Rather, she testified, in essence, that she was going for a walk which included a plan to go to Tim Horton’s.
[55] In summary, I find the evidence of the Crown credible and reliable and, having rejected the evidence of the accused, I find that the Crown’s case amounts to proof beyond a reasonable doubt.
[56] It matters not whether Mr. Heslinga intended to strike J.M. when he swung his fist towards her – he raising his fist in the circumstances described amounts to an assault under subsection 265(1)(b) of the Criminal Code.
[57] Regarding the threatening comment, I am satisfied beyond a reasonable doubt that the remark was a threat to cause bodily harm, looked at from the standpoint of a reasonable person in the same circumstances that J.M. found herself in, which is what I must, by law, consider.
CONCLUSION
[58] For the foregoing reasons, I find Mr. Heslinga not guilty on counts 1 and 2 of the Indictment – the two alleged sexual assaults.
[59] I find Mr. Heslinga guilty on count 3 – assault.
[60] I find Mr. Heslinga guilty on count 4 – threatening.
[61] I thank counsel for a well-presented case on both sides.
Conlan J.
Released: May 23, 2014
COURT FILE NO.: CR-14-058
DATE: 20140523
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
BRANDON HESLINGA
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: May 23, 2014