ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-004

DATE: 2014 07 17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.N.

H. Gluzman, for the Crown

S. Proudlove , for the Defence

HEARD: June 16, 17, 18, 19, 22, 23, 2014
Judgment: July 17, 2014

REASONS FOR JUDGMENT

André J.:

[1] From 2011 to June 2013, Ms. A.B. and Mr. T.N. were involved in a tumultuous relationship characterized by verbal and physical altercations. According to Ms. A.B., Mr. T.N. repeatedly assaulted her and had non-consensual sex with her during this period. She eventually reported the incidents to the police in June 2013, after learning from a mutual friend that Mr. T.N. had been consorting with another female. The police charged Mr. T.N. with one count of breach of recognizance, four counts of assault and one count of sexual assault. Following a trial in which the defence called no evidence, I must now decide whether or not the Crown has proven its case against Mr. T.N. beyond a reasonable doubt.

SUMMARY OF THE EVIDENCE

[2] The 31 year old Ms. A.B., who is six years older than Mr. T.N., met the latter through her brother some time in 2011 after she had ended her marriage. In October 2011, she moved into a basement apartment in a friend’s house on Tullamore Court in Brampton, where she resided for approximately one and a half months. During this period, Mr. T.N. and Ms. A.B. had casual sex on several occasions. Ms. A.B. left the basement apartment due to the inhospitable conditions and accepted Mr. T.N.’s invitation for her to move into his residence in the same neighborhood where he lived with his mother and sister. She did so on or about December 2011.

[3] From that time, the two had sex on a daily basis. On Valentine’s Day in 2012, Mr. T.N. professed his love for Ms. A.B. and asked her to be his girlfriend. She replied in the affirmative largely because she was developing feelings of affection for him.

[4] Following her acceptance of this offer the relationship between the two deteriorated. Ms. A.B. described a number of violent incidents in which Mr. T.N. physically assaulted her without provocation.

[5] Approximately one to two months after she moved into Mr. T.N.’s home, he got angry after she returned from a friend’s house. During an argument, he punched her and pushed her down a flight of stairs. She caught herself but he pushed her again. He threw her around the basement and pinned her against a washroom door. He then grabbed her around the neck and repeatedly threw her on and off the bed. He tore her clothes off but Ms. A.B. could not recall if he had sex with her during this incident. He called her a number of derogatory names. No one was home at the time. She did not call the police because she loved him and feared that if she did, her son and herself would be homeless.

[6] Following this incident, Mr. T.N. allegedly assaulted Ms. A.B. with great regularity. While living at his residence at Tullamore Court, he repeatedly struck her on the face and bit her on her lower lip and breasts.

[7] Mr. T.N. was quite contrite and apologetic. He wrote Ms. A.B. many cards and letters apologizing for his actions.

[8] Ms. A.B. told her grandmother, Ms. V.L., about the incidents and Mr. G.R., a mutual friend. She did not initially report the assaults to the police because of her love for Mr. T.N.; the fact that he had allowed her to live in his home; and her belief that she could change him for the better.

[9] On April 21, 2012, the police charged Mr. T.N. with assault after his mother called the police following an incident at the home. Ms. A.B. left the residence and moved to a shelter where she resided for two months. She continued seeing Mr. T.N. despite a recognizance which prohibited him from having any contact with her.

[10] Ms. A.B. moved to another residence at O[…] Place, Brampton, where her landlord was a doctor. She lived there until the summer of 2013 Mr. T.N. visited on a regular basis where he continued to physically abuse her. She contacted the police on one occasion while residing at this address but on an unrelated matter involving theft of her lingerie allegedly by her landlord.

[11] On October 15, 2012, the police found Ms. A.B. in the company of Mr. T.N., in violation of his recognizance. Ms. A.B. gave the arresting officer a fictitious name but later revealed her true identity. The police charged Mr. T.N. with breach of recognizance as a result of this incident.

[12] In January of 2013, Ms. A.B. was speaking on the phone with a friend, Mr. T.M.. Mr. T.N. became enraged and tried to rip the phone from her hand. While doing so, he twisted her finger. It pained her for many months. A couple days later Mr. T.M. came to the house and punched Mr. T.N. three times in his face.

[13] In another incident, in 2013, Mr. T.N. allegedly became violent with Ms. A.B. when she rebuffed his attempts to have sex with him. He allegedly threw her from the bed and then back onto it. He strangled her “over and over again”. She testified that on each occasion Mr. T.N. had his hands around her neck for 10 to 15 seconds. The whole incident lasted for approximately 15 to 20 minutes and only ended when Ms. A.B. kicked Mr. T.N. in the eye. However, later that evening, Mr. T.N. allegedly ripped Ms. A.B.’s underwear and slammed her on the floor.

[14] Ms. A.B. moved to another address in Brampton early in the summer of 2013.

[15] Ms. A.B. had apparently gotten tired of her relationship with Mr. T.N.. On or about June 14, 2013, he allegedly slapped her in the face during a verbal altercation. Ms. A.B. then asked Mr. T.N. to leave her residence. Later that evening, she received a call from Mr. G.R., advising her that the police had arrested Mr. T.N. for intoxication in a public place. Mr. G.R. also advised her that Mr. T.N. had been in the company of a female who Ms. A.B. described as the “crack lady”.

[16] On or about June 17, 2013, Ms. A.B. went to the police and for the first time gave them a detailed statement outlining the incidents of physical and sexual assault allegedly perpetrated by Mr. T.N..

[17] Ms. V.L., Ms. A.B.’s 70 year old grandmother, testified that she observed injuries on Ms. A.B.’s face. She also saw bite marks on Ms. A.B.’s lower lip and breasts. She verbally confronted Mr. T.N. about the injuries and warned him not to assault Ms. A.B.. He had allegedly replied: “O.K. ma”.

[18] Twenty-two year old Mr. G.R. testified that it was common knowledge in the neighborhood that Mr. T.N. was physically abusing Ms. A.B.. On April 21, 2012, he observed injuries all over Ms. A.B.’s face. He also saw bite marks on her lower lip and was shown bite marks on her breasts.

[19] Mr. G.R. contacted the police at Ms. A.B.’s request in March 2014. He testified that persons in his neighborhood including himself did not like to have any involvement with the police. He testified that he only spoke to the police because of Ms. A.B.’s request and of a recent change in his life.

[20] Mr. G.R. stated that he had advised Ms. A.B. on numerous occasions to leave Mr. T.N. but that she had not heeded his advice. He also verbally confronted Mr. T.N. on many occasions about the latter’s treatment of Ms. A.B.. Mr. G.R. testified that Mr. T.N. confessed to him many times that he had physically and sexually assaulted Ms. A.B. but always promised to cease his action. Mr. T.N. blamed his actions on his temper.

CROWN’S SUBMISSIONS

[21] The Crown submits that Ms. A.B. was a very credible witness who was unshaken in defence counsel’s cross-examination of her. She also submits that Ms. A.B.’s testimony regarding the physical and sexual abuse was corroborated by Ms. V.L. and Mr. G.R. and that accordingly, Mr. T.N. should be convicted as charged.

DEFENCE’S SUBMISSIONS

[22] Defence counsel, Mr. Proudlove, submits that Ms. A.B.’s testimony is so patently unreliable that it would be dangerous to find Mr. T.N. guilty on the basis of her evidence. Specifically, he contends that the following factors justify a rejection of her evidence:

(a) The absence of any physical or forensic evidence.

(b) Ms. A.B.’s failure to report the abuse to the police when she had ample opportunity to do so is a telling indictment of her credibility.

(c) Neither Ms. V.L. nor Mr. G.R. witnessed any physical violence between Mr. T.N. and Ms. A.B.. To that extent, their testimony does not corroborate Ms. A.B.’s testimony regarding Mr. T.N.’s alleged assaultive behaviour.

(d) Mr. G.R.’s delay in reporting the matter to the police and his interest in having a sexual relationship with Ms. A.B. seriously undermines his credibility about what happened.

(e) Ms. A.B.’s self-absorption and narcissism clouds her testimony about what truly happened in her relationship with Mr. T.N..

(f) Ms. A.B.’s rage and anger after finding out from Mr. G.R. that the latter had been in the company of the “crack lady”, caused Ms. A.B. to fabricate her allegations that Mr. T.N. sexually assaulted her.

ANALYSIS

[23] The Crown bears the burden of proving Mr. T.N.’s guilt beyond a reasonable doubt. That burden is not relaxed where the accused exercises his right not to call evidence in his defence. Furthermore, I remind myself that I cannot draw any adverse inference from Mr. T.N.’s failure to call evidence in this trial.

[24] I will deal with each submission of Mr. Proudlove regarding Ms. A.B.’s alleged lack of credibility.

Absence of Physical or Forensic Evidence

[25] Mr. Proudlove submits that the absence of such evidence weighs heavily against Ms. A.B.’s credibility. He points out that there are no photographs of Ms. A.B.’s injuries, no medical or forensic evidence, no sexual assault evidence and no evidence of the ripped underwear which Ms. A.B. testified about. Neither are there any eyewitness accounts of the incidents. The paucity of such evidence, he submits, mitigate against the credibility of the Crown’s star witness.

[26] Undoubtedly, the absence of such evidence may well, in certain circumstances, constitute cogent evidence of the weakness of the complainant’s testimony. However, domestic violence typically occurs within the confines of the home where there are few witnesses. It is not unusual that in such cases there are no witnesses to the alleged incidents.

[27] In this case however, Ms. A.B. testified that Mr. T.N.’s mother and sister witnessed some of the incidents she described. Neither took the stand. Ms. A.B. cannot be faulted for their failure to do so.

[28] There is an absence of any photographs or medical reports confirming that Ms. A.B.’s suffered the injuries she described. The paucity of such evidence in this case is entirely consistent with Ms. A.B.’s testimony that she did not wish to involve the police in this matter. One would have thought that had she desired to get Mr. T.N. in trouble with the law she would have either photographed her injuries, sought medical attention or contacted the police at the earliest opportunity.

[29] The absence of this evidence, in my view, is of little significance in the assessment of Ms. A.B.’s credibility.

Failure to Report to the Police

[30] Mr. Proudlove points to the failure to report to the police as cogent evidence of Ms. A.B.’s lack of credibility and the general unreliability of her testimony.

[31] Ms. A.B., he submits, had ample opportunity to contact the police. She could have done so on April 21, 2012 and October 15, 2012. Rather than advise the police about the incidents, Ms. A.B. lied to the police about her identity. Additionally, there were approximately 13 occurrence reports as a result of contacts which Ms. A.B. had with the police and yet she failed to mention anything regarding Mr. T.N.’s abusive behaviour.

[32] Without question, failure of the complainant to advise the authorities about alleged abuse can potentially undermine her credibility. However, the extent to which it does so, depends on the circumstances of a particular case. As the Supreme Court of Canada noted in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[33] Ms. A.B. has given a number of reasons for her failure to disclose her physical and sexual abuse. These include her love for Mr. T.N., her indebtedness to him for allowing her to live at his home and her belief that she could change him for the better.

[34] Mr. Proudlove submits that Ms. A.B. provided contradictory reasons for not reporting the matter earlier. The fact that she provided different reasons for not reporting the physical abuse earlier does not diminish her credibility in this regard.

[35] That said, the timing of Ms. A.B.’s reporting of the alleged sexual assault may well prove to be an important factor in the assessment of her credibility. Ms. A.B. testified that she reported the sexual abuse after Mr. G.R. advised her that Mr. T.N. had been with the female she referred to as the “crack lady”. Ms. A.B. denied in cross-examination that this information accounts for her decision to advise the police about incidents of alleged sexual abuse.

[36] However, Ms. A.B.’s demeanour and her testimony suggest that she became very angry following Mr. G.R.’s disclosure of this information to her. Ms. A.B.’s antipathy towards this woman is reflected in the disparaging comments she made about her. Ms. A.B. described her as having botched plastic surgery, a breast hanging under the arm and a face that resembled a box.

[37] In my view, it is simply more than a matter of mere coincidence that three days later, Ms. A.B., for the first time reported to the police that Mr. T.N. had sexually assaulted her. This factor must be carefully weighed with other factors in determining whether or not, with respect to this charge, the Crown has proven its case against Mr. T.N. beyond a reasonable doubt.

The Evidence of Ms. V.L. and Mr. G.R.

[38] Mr. Proudlove submits that the testimony of Ms. V.L. and Mr. G.R., at their highest, merely confirms that Ms. A.B. had some facial and breast injuries; they do not corroborate Ms. A.B.’s testimony about the genesis of these injuries. He further submits that Mr. G.R., in testifying against his friend, Mr. T.N., sought to win Ms. A.B.’s affections and that in any event, Mr. G.R. and Ms. V.L. likely colluded in their testimony.

[39] Prior to assessing the testimony of these two witnesses, I should note that while there is no rule of law that requires corroboration in domestic cases, the absence of corroboration is a factor to be taken into account in assessing whether or not the Crown has proven the guilt of an accused beyond a reasonable doubt: see R. v. Camp (1977), 1977 1092 (ON CA), 36 C.C.C. (2d) 511 (Ont. C.A.), per Dubin J.A. at p. 521.

[40] In his attempt to blunt the impact of the testimony of Mr. G.R. and Ms. V.L., Mr. Proudlove suggests that the two colluded in giving their testimony. However, Mr. Proudlove never put that suggestion to either witness. Indeed, he hardly challenged Ms. V.L. who presented as a very credible witness. She saw injuries on Ms. A.B.’s face. She saw what she believed to have been bite marks on Ms. A.B.’s lower lip and breasts. She spoke to Mr. T.N. and cautioned him about assaulting her granddaughter. He replied: “O.K. ma”.

[41] Mr. Proudlove is quite correct that this reply cannot be regarded as an admission of guilt. However, Ms. V.L.’s observations are entirely consistent with Ms. A.B.’s explanations for her injuries.

[42] Mr. Proudlove never put to Ms. A.B. that she had bitten herself or that someone other than Mr. T.N. had done so. Ms. A.B. repeatedly denied that she had sustained the injuries after she attacked Mr. T.N.. There is no other rational explanation for the injuries on Ms. A.B. which Ms. V.L. observed, other than Ms. A.B.’s testimony regarding the genesis of her injuries.

[43] Similarly, Mr. G.R. was not shaken in cross-examination in his testimony about the injuries he observed on Ms. A.B.. I do not accept the suggestion that Mr. G.R.’s testimony is tainted because he wanted to win the affections of Ms. A.B.. He told her in June 2013 that Mr. T.N. had been with another female. He did not speak to the police until March 2014. Had he wished to ingratiate himself with Ms. A.B. he would surely not have waited approximately nine months before speaking to the police.

[44] Second, Mr. Proudlove questions Mr. G.R.’s credibility because of the latter’s delay in reporting the abuse to the police. He suggests that Mr. G.R.’s failure to do so, or that of anyone in his neighborhood, undermines Mr. G.R.’s credibility.

[45] I do not agree that this is necessarily the case. The fact of the matter is that there are certain persons in our community who are reluctant to report any alleged wrongdoing to the police. This is rather unfortunate given that the police authorities invariably rely on the public’s assistance to maintain law and order in our community.

[46] Mr. G.R. observed the following injuries on Ms. A.B.:

(a) bruises on her forearm which were bluish purple;

(b) scratches all over her chest;

(c) teeth marks on the inside of her lower lip; and

(d) bite marks on the upper part of her breasts.

[47] On another occasion he saw bruises on her face, jaw, eye and a lump on her forehead.

[48] Mr. G.R.’s observations are consistent with Ms. A.B.’s description of her injuries and that observed by Ms. V.L..

[49] Furthermore, Mr. G.R. testified that he confronted Mr. T.N. about Ms. A.B.’s injuries and that Mr. T.N. had become very emotional. He expressed regret about the injuries and apologized for them. According to Mr. G.R., Mr. T.N. apologized for causing Ms. A.B.’s injuries.

[50] Mr. G.R. was unshaken in cross-examination about what he claimed Mr. T.N. stated to him. While he admitted that he never saw any altercation between the two, Mr. T.N. admitted not only to physically assaulting Ms. A.B., but also to having non-consensual sex with her.

[51] I am not as concerned as Mr. Proudlove about Mr. G.R.’s failure to take photographs of Ms. A.B.’s injuries for the simple reason that he had no intention of reporting the injuries to the police when he initially saw them.

[52] I accept Mr. G.R.’s testimony about the injuries he observed on Ms. A.B. for the following reasons.

[53] First, contrary to Mr. Proudlove’s submissions, Mr. G.R. has no interest in the outcome of these proceedings.

[54] Second, he testified in a very candid fashion even to a point of making admissions against his own interest. For example, he volunteered that on occasion he had smoked marijuana with Mr. T.N.. Furthermore, he corroborated Ms. A.B.’s testimony that a group of young men in the neighbourhood, including himself, had planned to beat up Mr. T.N. because of his treatment of Ms. A.B. but had been discouraged by her from doing so.

[55] Third, his description of Mr. T.N.’s demeanour after he confronted him about the abuse of Ms. A.B. mirrors the latter’s testimony about Mr. T.N. being very emotional and apologetic following his bouts of assaultive behaviour.

The Cards and Letters Which Mr. T.N. Sent to Ms. A.B.

[56] Mr. Proudlove dismisses this evidence as having little or no corroborative value in that it does not constitute an admission of wrongdoing and merely reflects a scrupulous attempt by Mr. T.N. to “fix” his relationship with Ms. A.B..

[57] In my view, it is more than this. For example, in one letter, Mr. T.N. wrote that: “I am sorry for my actions” and that “my anger problem I know it’s setting me up for (sic) fail.” In another, dated June 07, 2012, he wrote that he had been “dragging around a lot of anger over the past years” and asked Ms. A.B.’s help to overcome it. He also wrote that his “usual reaction when I think I am being put into a corner is to come out fighting or to at least come out shouting”.

[58] Ms. A.B. attributed Mr. T.N.’s bouts of violent behaviour to his explosive anger. Mr. G.R. testified that Mr. T.N. admitted to him that he assaulted Ms. A.B. as a result of his temper. Mr. T.N. admitted in his own correspondence to Ms. A.B. that his anger posed a serious problem in his relationship with her given that his usual reaction when he was “put into a corner” was to come out fighting or shouting.

[59] In my view, Mr. T.N.’s letters corroborate Ms. A.B.’s testimony that he physically assaulted her during their relationship.

Ms. A.B.’s Self-Absorption and Narcissism

[60] Mr. Proudlove portrays Ms. A.B. as a vain and narcissistic person who had portrayed herself in the best light while portraying Mr. T.N. in the worst.

[61] For example, he points to her testimony regarding the alleged incident on April 21, 2012. Ms. A.B. stated that she went to a shelter to ensure that Mr. T.N. would have a place to stay following his release by the police. She also testified that Mr. T.N. physically prevented her from getting into the taxi sent by the shelter, causing it to drive away.

[62] I am not convinced that Ms. A.B. fabricated her evidence regarding the decision to go to the shelter. Indeed, it appears that throughout the relationship she placed Mr. T.N.’s interests ahead of her own. For example, she chose not to call the police after each violent incident. Second, when some males in the neighbourhood planned to beat up Mr. T.N. because of his treatment of her, she pleaded with them to refrain from doing so. Mr. G.R. corroborated that part of her testimony. Third, she had contact with Mr. T.N. after April 21, 2012 despite a court order which prohibited Mr. T.N. from having contact with her.

[63] Ms. A.B. denied a number of suggestions put to her by Mr. Proudlove. She denied that Mr. T.N. reluctantly consented to having a relationship with her because of her persistent nagging. The letters and cards sent to her by Mr. T.N. clearly confirm her testimony on this issue. She also denied a suggestion that she used Mr. T.N. as a babysitter while she went out to smoke marijuana. Mr. G.R. confirmed that Ms. A.B. was the one who on many occasions would get marijuana for Mr. T.N..

FINDINGS OF FACT REGARDING BREACH OF RECOGNIZANCE AND ASSAULT CHARGES

[64] Based on the above, I make the following findings:

(a) Between July 2012 and June 14, 2013, Mr. T.N. had regular contact with Ms. A.B., contrary to a term of his recognizance dated April 21, 2012.

(b) Mr. T.N. struck Ms. A.B. in the face on June 14, 2013.

(c) Between December 1, 2011 and April 30, 2012, Mr. T.N. pushed Ms. A.B. down a flight of stairs, grabbed her around her neck and pinned her against a door. I also find that in another incident in 2013, Mr. T.N. repeatedly strangled Ms. A.B. and only stopped after she kicked him in the eye.

(d) Between December 1, 2011 and June 14, 2013, Mr. T.N., on separate occasions, bit Ms. A.B.’s lower lip and both breasts.

(e) Between January and February 28, 2013, Mr. T.N. forcefully removed a phone from Ms. A.B.’s hands and while doing so, twisted one of her fingers.

[65] I also find as a fact that in all of these incidents, Mr. T.N. initiated the physical altercation with Ms. A.B..

SEXUAL ASSAULT CHARGE

[66] Ms. A.B. testified that on numerous occasions Mr. T.N. forced her to have sex against her will. Mr. G.R. testified that Mr. T.N. admitted to him that he had done so.

[67] On the other hand, there is no question that Ms. A.B. delayed in advising the police about these acts. She initially told the police on June 17, 2013, that he tried to force her to have sex with him but she successfully fought back. She also stated, however, that on many occasions, she had simply given in and allowed him to have his own way.

[68] I have two concerns about Ms. A.B.’s testimony regarding the alleged sexual assaults. She reported them only after finding out that Mr. T.N. had been with a woman whom, based on her testimony, she clearly resented. Second, she testified that one of her reasons for not reporting the alleged sexual assaults earlier was that she did not know that Mr. T.N.’s actions constituted sexual assault. Indeed, Mr. G.R. testified that he explained to Ms. A.B. that Mr. T.N.’s action constituted rape.

[69] Ms. A.B. was born in Canada and successfully completed high school. She was married and has a child. She testified that on many occasions, she physically resisted Mr. T.N.’s attempts to have sex with her. I find it rather difficult to accept that she did not know that if Mr. T.N. forcefully had sex with her against her will, his actions constituted rape.

[70] While these incidents involving sex did, in all probability, take place, I cannot find, to the requisite standard of proof beyond a reasonable doubt, that they did.

CONCLUSIONS

[71] I find Mr. T.N. guilty on the following counts:

Count number 1 – Breach of Recognizance

Count number 2 – Assault on A.B. on June 14, 2013

Count number 3 – Assault on A.B. between December 1, 2011 and April 30, 2012

Count number 4 – Assault on A.B. between December 1, 2011 and June, 2013

Count number 5 – Assault on A.B. between January 1, 2013 and February 28, 2013

[72] I find Mr. T.N. not guilty on the following count:

Count number 6 – Sexual Assault on A.B. between December 1, 2011 and April 30, 2012

André J.

Released: July 17, 2014

COURT FILE NO.: CR-14-004

DATE: 20140717

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T.N.

REASONS FOR JUDGMENT

André J.

Released: July 17, 2014