Her Majesty the Queen v. Mark Singh, 2014 ONSC 6304

COURT FILE NO.: CRIMJ(P) 427/13

DATE: 20141216

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. R. Levan, for the Crown

• and -

MARK SINGH

A. Kenawy, for the Defence

HEARD: October 28-30, 2014

REASONS FOR JUDGMENT

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

HILL J.

INTRODUCTION

[1] The accused pleaded not guilty to sexually assaulting JD. It falls to be determined whether the prosecution has proven the allegation beyond a reasonable doubt.

FACTUAL CONTEXT

Background

[2] In June 2012, the complainant was 40 years of age. She was addicted to crack cocaine. Her daily habit cost about $600. She worked for Molly Maid. To support her habit, she was also “rented” out as an escort by her pimp and drug dealer, Ritchie. He supplied customers crack cocaine and she “would supply a service of some nature to these clients”. With respect to crack cocaine, she had been “a runner for two years”.

[3] According to JD, in 2012 she then cared very little about herself. She didn’t change her clothes regularly and wasn’t “hygienically taking care” of herself. The witness testified at trial that she is no longer a crack addict.

[4] JD informed the court that she first met the accused a week or so before June 28, 2012. JD testified both that they had “started to try to become friends” and that they had “a close friendship”. He “was always a nice guy”. They had been together “[a] small handful of times”, perhaps three (3) or four (4) times, including at the accused’s rooming house. On each occasion, they smoked crack cocaine. They had had a “sexual encounter”. She did not know “if romantically [they] would have made it”.

[5] In June 2012, JD was residing at […] Avenue in Brampton with her ex-husband. At the end of the month, she and her boyfriend of about two months, C.P., intended to move into an apartment together. She was not entirely happy with his lifestyle as there were always people at his place – they had little time alone. She loved C.P. and believed that he loved her.

[6] Mark Singh has a prior criminal record for failing to comply with recognizances in 1992 and 2011, and failure to comply with a probation order in 1994.

[7] As a witness on his own behalf at trial, it was the accused’s view that his memory has generally become better over time. Because he is no longer abusing substances, his head has cleared allowing him to think. The accused was prepared, however, to agree that his memory of events of June 2012 was better at the time of his July 17, 2012 videotaped statement to the police than at trial.

[8] On the accused’s evidence, by June 28, 2012, he had known JD for about two (2) weeks. She came to his room almost daily to smoke crack cocaine.

[9] Mark Singh testified that in June of 2012 he was a cocaine addict. He also regularly used cannabis, alcohol and clonazepam. On the accused’s trial evidence, he has now been clean for 18 months.

[10] According to the accused, he had no idea that JD was involved in a relationship with someone else.

A Drug Deal Gone Bad

[11] JD testified that on June 28, 2012, at about 11:30 p.m., shortly after leaving C.P.’s home, she received a phonecall from the accused who stated that a friend of his had some money and wanted to buy a “cuban” which is the street term for seven (7) grams of crack cocaine. She responded that she might have a “link” to a cuban and would phone him back. She had no cash of her own.

[12] To the accused’s recall, on June 28, 2012, he was drinking beer and “smoking dubes” (marihuana). That was an everyday thing at the rooming house.

[13] After setting up the drug deal with Ritchie, JD called the accused. He asked her to pick him up along with his friend at 11 Lisa Street, an apartment building in Brampton. JD agreed. She met the accused’s friend, Andrew, for the first time and the three drove to a bank for Andrew to withdraw cash. JD drove the accused and Andrew to an address on Knightsbridge Road in Brampton.

[14] JD took Andrew’s $480.00 and left her vehicle on her own. After making the exchange, she returned to the car and gave a small, wrapped package to Andrew. At that point, the accused and Andrew discussed that it felt “light” meaning that it might not be the “proper count” for a cuban.

[15] In his testimony, the accused agreed that as a result of initiating contact with JD late on June 28, 2012, he was able to locate a source to obtain “good crack” for Andrew. Speaking about himself, the accused testified that in 2012 he was more of “a powder guy” who snorted rather than smoked. Andrew had been staying with him for a few days. The accused recalled that JD drove them to a “crack building” on Knightsbridge Road. JD did the deal and on her return to the car gave a package to Andrew who then passed it to him saying, “What do you think? This is way light”. He agreed that it felt light.

[16] JD drove the accused and Andrew to a rooming house at 40 Avondale Blvd. in Brampton. The accused resided here in a single room. There was a communal washroom in the hallway. On arrival, the crack cocaine was weighed. It only weighed three (3) grams to JD’s recall.

[17] To the accused’s recall, when scales were used back at his rooming house to check the crack cocaine, it weighed in at only 3.2 or 3.3 grams. This upset him but not nearly as much as Andrew. The accused felt that he was then “in the middle of the thing”. Andrew was very angry – he wanted half his money back ($240). The accused testified that the money given JD for the crack was “serious money” to Andrew. To the accused’s recall, JD said that she would “fix it up” and said “if these guys wanted to play she’s going to get her gun, her .22 and shoot ‘em”. JD began phoning her dealer.

[18] On JD’s evidence, Andrew became extremely upset and began yelling at her over being shorted by her drug dealer. The complainant also described the accused and Andrew “freaking” on her because the deal went bad. Andrew became “very aggressive”. He repeated over and over, “Where’s my four grams?”

[19] JD explained to the court the position in which she found herself. There was a code. Because she set up the drug deal, she was responsible for the deal going bad.

I took it very personal. I took it personal because I can only imagine how I would feel if I were to put that type of money out and some strange girl or strange guy out of nowhere says don’t worry I got this all covered and it not be covered. I took – my main concern was I understood what was at stake. I understood that no matter what I had to fix this. It’s just, it’s just how the proper rolling measures you have to take when standing in the middle of this world, this – the drug world is very complex and very vicious and malicious.

[20] On the complainant’s evidence, Andrew put a “bounty” on her requiring her to come up with the missing four (4) grams of crack cocaine – “[I]n the drug world, there’s no complaints department”.

[21] JD recalled Andrew “carrying on quite erratically”, saying he was Israeli and asking if she knew what that meant. He said that “in a matter of seconds” she could be shot. Andrew kept repeating that she had to fix the problem. He said, “You have two weeks”. She became anxious. In her view, Andrew “was a force to be reckoned with”.

[22] JD testified that she made repeated calls to Ritchie, all without success, before the charge on her cellphone ran out.

[23] The accused described Andrew as “flipping out”. He was putting the debt on JD. JD seemed scared and panicky. Wanting to help her out, as she was a friend, he told Andrew that he would forgive the $150 Andrew owed him for staying at the rooming house if he cut JD’s debt down to $90. Andrew remained upset. Tensions were high. To the accused’s recall, Andrew was yapping about Israel and phoning the Mossad.

[24] The accused recalled JD phoning to try to get a hold of Ritchie but “[t]he guy wouldn’t answer”. He also recalled JD talking about getting her .22 and shooting Ritchie.

[25] The accused had no recall of Andrew telling him to keep an eye on JD or of Andrew telling JD she had two (2) weeks to pay up.

[26] JD testified that in order to calm Andrew down, the accused offered to cancel a $150 debt Andrew owed to him as an offset against the value of the missing crack cocaine.

[27] According to JD, the three were in the accused’s room for about an hour before Andrew left at about 1:00 a.m. on June 29. She had her crack pipe with her. During the hour they were together, all three smoked crack cocaine. Although JD is unable to recall how much crack she smoked, she believes she had three (3) or four (4) hits. The accused and Andrew snorted some clonazepam and she “popped” one. For JD, a crack high lasts one to two (2) minutes. Crack does not make her hallucinate. She felt sober. As well, at some point, the accused started to leave the room. He would then return soaking wet and hyperventilating. This happened more than once. She had not seen the accused in this condition before.

[28] The accused recalled that, along with Andrew and JD, crack cocaine was smoked. Andrew was passing out pieces. He considered that JD was “high” but coherent. He too was high. According to the accused, JD had her own crack pipe and may have had her own crack. The accused further recalled that he swallowed one clonazepam tablet and snorted a line of a crushed one. He considered clonazepam to be an anti-anxiety drug.

[29] JD testified that before Andrew departed, he instructed the accused not to let her out of his sight until he got his four grams.

[30] The accused testified that after an hour to an hour and a half of smoking, Andrew left the room. He believes Andrew was then in the backyard of the rooming house or in another tenant’s room. At this point, he and JD remained in his room:

Q. ...and it’s just you and [JD] do you guys end up smoking crack together?

A. Yeah. I told, I told them, you know, this -- I go, “Give me half an hour with her” and he gave us a piece. I gave [JD] her thing and me and her were alone in my room. I asked Andrew to give half an hour with her.

Q. What do you mean by give you half an hour with her?

A. Just, you know, to do whatever, you know, maybe have sex, calm her down, whatever.

The Alleged Sexual Assault

[31] According to JD, she was dressed in pyjama bottoms, a white, hooded sweater and running shoes. She was not wearing underwear.

[32] JD testified that after Andrew was gone, the accused was still coming and going from the washroom. She was unsure if he was jumping in and out of the shower. He changed his clothes three or four times within a few hours. To her, “it looked like a psychotic episode”.

[33] On JD’s evidence, at a point, as he was on the bed, the accused “turned into a different person” telling her that she was going to “suck his cock”. She said, “No”. On her evidence, “tempers flew” and the accused became “very angry”:

He at that point had pulled his pants down and he grabbed me by the back of the head and tried to push my face towards his penis and at that point I clenched my teeth and said no and that’s when he grabbed me by the side of my head and put me down. I went with the pulling. He pulled me down and my hair was being pulled quite tightly but I, I was going with the motion of where he was pulling and clenching my teeth at the same time `cause I was not about to give him -- I wasn’t about to give him oral sex. It wasn’t gonna happen. But unfortunately I succame [sic] to the pain.

[34] The complainant described herself as being on her left side on the bed in a fetal position with the accused kneeling on the bed beside her. She was fully dressed. The accused pulled his pants down “a bit”. He had an erection. On JD’s evidence, the accused was holding her hair so tightly next to her scalp that she felt a thumping in her head. The accused said, “Suck it bitch”. The pain caused her to eventually unclench her teeth and to open her mouth. JD testified that the accused kept his hands on her head “to try to enforce…the blowjob”. This lasted for no longer than 30 seconds. There was no ejaculation.

[35] According to JD, the accused pulled her pants down to the area of her hips. She was in no way aroused and there was no lubricative secretion in her vagina. The accused pulled her legs out straight, spit on his fingers and “jammed” them sideways into her vagina. It “was very, very painful”. The force of the accused’s act “ripped” and “tore” her. The complainant testified that she said, “Why are you doing this? Why?” She did not yell for help – “I was trained to deal with it on my own”.

[36] According to JD, at some point, the accused stood up and began banging on his chest and hyperventilating. In her words, “[i]t’s a side of [the accused] I’d never seen”. In her words, he was “in a state” and she “was getting scared”.

[37] On JD’s evidence, the accused next attempted sexual intercourse. He pulled her pants to the location of her knees. As she lay on her back, without lubrication or a condom, the accused penetrated her but not without difficulty. He seemed frustrated that he was unable to ejaculate. She was not “getting turned on”. After refreshing her memory from a transcript of her June 29, 2012 videotaped police statement, JD stated that the accused had his hand across her throat. She was unable to breathe properly, becoming dizzy, starting to black-out and seeing “dots”.

[38] Initially in her in-chief testimony, the complainant stated that the accused did not stop and then recommence intercourse at any point. After refreshing her memory from the transcript of her videotaped statement, JD testified that, “he tried and, you know, at some point he’d try again” – “he would let go for a bit and then stop”. There may have been three (3) or four (4) attempts.

[39] According to the complainant, the accused turned her around until she was on her knees. He entered her vagina from behind. Again, he could not ejaculate. He became “very angry”. She asked him to stop. The sexual intercourse lasted about five (5) minutes. JD testified that the sexual intercourse made the damage, from the insertion of the accused’s fingers, “even worse” – “I was in so much pain”.

[40] In cross-examination, JD agreed that in the July 12, 2013 preliminary inquiry, when asked about sexual intercourse, she initially gave this evidence:

Q. So eventually is he able to enter you with his penis?

A. I don’t recall. I don’t believe so.

Subsequently, in that proceeding, after being allowed to refresh her memory from her statement to the police, JD stated that she was penetrated by the accused’s penis. Questioned further at trial, the complainant stated: “I’m not sure if he entered. I’m not sure at this time. I don’t know”. JD noted that, “It was two years ago”.

[41] In his in-chief evidence, the accused described what happened between him and the complainant:

A. Okay. My bed is right in the corner and she smoked a crack rock off the pipe and pass it to me, put one on and I smoked it. And I don’t think there was oral. She pulled my pants down and she laid down, and I was erect. And when I was going to have intercourse with her or penetrate her I had a panic attack and I said, “I can’t do this.” And when I got off her she had a tear in her eye, she’s crying. I went out of the room into the washroom.

Q. So are you saying that she removed your pants?

A. I think -- I don’t recall. I thought it was like both of us doing it together, right. I pull her down, I pull mine down and we laid down. And that was just after she put a rock on the pipe and I smoke it. And you know, but I guess, I was erect, I guess, to have intercourse with her and then I just had a panic attack and I said, “I can’t do this.”

Q. What caused you to become erect?

A. I think we were, we were touching. I don’t really recall but I don’t think there was any oral. She, because she -- she didn’t go down on her knees and give me oral. She just laid on the bed and pulled her thing, her pyjamas or whatever she’s wearing down, I pulled my shorts down and I got on top of her.

Q. And your penis was exposed?

A. Yes.

Q. Did she touch your penis?

A. Yes, I think she did. I don’t, I don’t -- I, I’m pretty sure she did.

Q. And what was she doing with it?

A. She’s like guiding it into her vagina. And then the wave of panic came over me…

[42] The accused denied that he pulled JD’s hair, forced oral sex, inserted his fingers into her vagina, put a hand around her neck or raped her. He changed his clothes one to three (3) times during the evening because “he was wet” from splashing cold water on himself.

[43] In cross-examination, the accused provided this account:

A. Yeah, but we were in the room together and she, she went in the room, we had -- he gave me crack for me and her and I gave it to her. She did her -- she did her toke and she passed it to me. And we were touching and whatever. And she’s down on her back, and I got a panic attack and I didn’t -- and I think -- to get erect on crack she must have been stroking my penis or -- you know, we were touching and that. I didn’t pull her hair or nothing. And then she laid on her back, she -- and both her pants were down. And when we were gonna have intercourse and she was, you know, “Are you okay, Mark? Are you okay?” And, you know, she’s like trying to take care of me, you know. And then I said, “I can’t do this.” [JD] goes, “Are you sure you’re okay?” You know, that’s why I went out of the room.

Q. And in terms of the -- so you say that you get alone with her and you can’t recall but you think that she was touching you in some fashion to get you erect?

A. Yeah, and to, like you know, she’s making sure I was okay, right, and we were touching each other. It was all consensual, man.

Q. And when you say it’s all consensual, did you ask her if it was okay to touch her?

A. Well, she’s already touching me so I figure it was okay.

Q. You figured it was okay to touch her based on the fact that you say that she was touching you?

A. Yeah, she’s rubbing my chest, rubbing my back and I said, “I’m okay, baby.” And you know.

Q. So she’s rubbing your chest and rubbing your back and you interpret this to be invitation to sex or invitation to sexual touching?

A. Uh, well, I guess from previous experience that’s the way it usually works.

Q. And in terms of the -- you didn’t ask her if it was okay if you touched her or anything like that, right?

A. Well, she didn’t ask me if it was okay if she touched me.

Q. But the question I asked was you didn’t ask her, right?

A. No, I didn’t ask her.

Q. Is it fair to say you just assumed that it was okay to touch her?

A. As much as she assumed.

[44] In further cross-examination, the accused agreed that he related the following to the police during his videotaped statement:

Question: So what happens? You guys get the drugs, they’re short, then where do you go?

Answer: We just went to my place.

Question: So you went to your place and you guys...

Answer: Yeah.

Question: Do you remember what time this was?

Answer: No, I don’t remember the time, nothing or what happened, man. Um, just drugs and went to sleep and she was gone. And my friend was angry for losing that money.”

THE COURT: “My friend was mad.”

CROWN COUNSEL: Or, sorry, pardon me.

Answer: My friend was mad for losing that money.

Question: But you were smoking drugs with her, right?

Answer: Um, probably, yeah.

Question: Okay. Is it that you don’t remember or...

Answer: Yeah, it, yeah, I was -- I remember -- but I don’t remember sleeping with her that night. My buddy was so pissed off for losing the money and shit like that.

[45] Asked to explain why he told the police that there had been no sexual contact, the accused responded:

…the thing is, when he was asking me these questions, I’d been with her a bunch of times and I didn’t know what time she was - - he was talking about.

[46] Under further questioning, the accused agreed that the officer’s reference to the date on which the drugs were shorted did refer to “[t]hat night of the incident, yes”. The accused then told the questioner that the time he was referring to in the above exchange was after he and JD returned to his room from the drive to the ODSP office.

[47] Cross-examination continued on this statement which the accused made to the police:

Answer: He came in, talked to her, and he asked about his money, when he’s gonna get his money back.

Question: Okay, and then what happened?

Answer: Nothing. I think [JD] just kind of got kind of intimidated and left, right, or something. I don’t know.

Question: Intimidated by who?

Answer: Andrew, `cause Andrew wanted his money, man.

Question: Okay. You got -- did you guy go anywhere after?

Answer: No, we didn’t, she just left.

Saying that there may have been some confusion in speaking to the police, the accused provided this evidence at trial:

Q. All right. So in terms of it, sir, again, this is you saying that you get back there, he comes in and she leaves. Andrew comes back and she leaves.

A. She, she leaves the next afternoon I was saying. Maybe Officer Irving didn’t understand.

A. Maybe I left all that out in between about that and I was -- I thought he was talking about when she was, you know, helping me with the landlord or something.

This guy’s asking me all these questions, you know, I’m just trying to tell him the truth and that’s about it. Maybe I did get confused, you know. It’s just confusing sometimes when people try to pin shit on you.

[48] Crown counsel returned to the subject in reading to the accused this excerpt from his police statement:

Question: Okay Mark, you’re confusing me. You know what, we need to concentrate on the day that she shorted you or she shorted your friend on crack.

Answer: Yeah.

Question: And that you said that you were going to help your buddy out and, and pay off her debt there and she kept...

Answer: Help her out.

Question: Help her out. She came to your place?

Answer: Yeah.

Question: You said Andrew?

Answer: Yeah.

Question: And you and her were there?

Answer: Yeah.

Question: And you were smoking?

Answer: Yeah.

Question: Did you have sex with her that day?

Answer: No, I don’t think so.

Question: Okay, you got a...

Answer: I didn’t -- well, no, no, cause I don’t remember -- cause I never forced her to do anything so I didn’t think I had sex with her that day.

[49] By way of explanation, the accused gave this evidence at trial:

Well, that’s what it says there. And that’s what I said cause I didn’t think I had sex with her and, you know, it’s hard to recall cause we had, you know, been together so many times. And the day in question, you know, like I testified, I didn’t penetrate her. I didn’t pull her hair. I didn’t do anything to her. And as I was recalling, and recalling, and recalling, you know, it came back to me. But I was a little bit, you know, uncertain. But when that timeframe came back in my head, you know, I know exactly what happened.

[50] This passage from the police statement was then read to the accused:

Question: You don’t think you...

Answer: I think you know what, we were about to have sex but Andrew kept knocking on the door and I had to keep quiet. And like, I ended up getting evicted so we didn’t have sex that day.

[51] In response, the accused maintained at trial that it was both Andrew’s return to the room and a panic attack which caused sex not to occur.

[52] The accused then gave this information to the police when the interviewer suggested that the police would have various seizures forensically tested:

Question: Okay. So it’s very, verily important that you be honest with me, right?

Answer: Yeah.

Question: Because we, we’ve collected certain items.

Answer: Yeah.

Question: And we’re going to be testing them, right?

Answer: Yeah, yeah.

Question: So I’m saying did you have sex with her that, that day?

Answer: No, I don’t think so.

Question: Okay.

Answer: Well, maybe I did, but I -- we wore a condom.

Question: Sorry, you would have wore a condom?

Answer: Yeah, got lots of condom in my room.

[53] The accused explained his answers to the police in this way:

Q. And now you’ve qualified, you’ve said maybe we had sex.

A. Well, if her hand touches my penis and stroking it to an erection in sex maybe we had sex.

Q. Sorry. You’re saying that in the circumstances your reference to sex here would have been if her hand had touched your penis?

A. Well, we had sex so many times, bro, you know. And this guy’s grilling me. And there were so many times and, you know, I don’t know. I, I didn’t have sex with her.

Q. So, you didn’t have sex with her?

A. No.

Q. So you were wrong?

A. No, I wasn’t wrong because fondling and touching, handjob, blowjow -- sex she didn’t -- I didn’t have no oral but we touched. And when we were in missionary position I had a panic attack and got off.

…So I might have been a little bit off but I was trying to recollect as best as I could.

Q. You might have been a little bit off saying maybe, maybe I did, maybe I did have sex with her?

A. Depends what you consider sex, you know.

Q. Well, what do you consider sex, sir?

A. I know penetration.

Q. Penetration?

A. Penetration, oral copulation. You know, I couldn’t, couldn’t recall if she went down on me or, you know. I think we were touching or something. So that’s why I said maybe, you know. `Cause that night is, you know, I know what went on that night but it’s a little bit of a blur. When he’s asked me like 10 times, I said, no, no, no, no, no, and you know, and I said, oh whatever, maybe, like he was co -- coercing me, you know.

Q. With respect, sir, this is just after the section that I’ve just read to you here. He suggested to you that they’re going to be testing certain items.

Q. Right. And then you qualify it and say, “Well, maybe we had sex.” Not your exact words but that’s, that’s what you said there. So you find out that they’ve got some stuff, they’re going to be testing it and then you say, “Well, maybe.”

A. Well, you know what, if was erect and there was, like, pre-come on my cock and it touched her and she went right to the rape clinic there might have been some DNA, big deal, you know. You gonna, you gonna put me in jail for that?

Q. But if it was only that why would you say “Maybe I did, maybe I did have sex with her”?

A. I, I, I don’t recall why, you know, I’ve just said, you know. But maybe, if, or, yes, no, it was all consensual.

Q. All right. So maybe you had sex and it was consensual; you didn’t have sex because of the panic attack but it was still consensual. Did you have sex with her?

A. A bunch of times before that. That night, maybe, you know, I, I got confused and thought of a different night. But he -- you know, it’s all about the night with Andrew. And I said, you know, maybe or no. Maybe we had sex earlier on in the day or something. I don’t know. I don’t know why I said it, you know. I said no, you know. I was confused and I lost a little bit of recollection of what happened. But I know now when he told me that time, you know, I didn’t do anything to hurt her or pull her hair or nothing, but I was on top of her about to have intercourse with her and I had a panic attack and I left, and that’s what I remember. I didn’t hurt her or touch her, you know.

A. And when she laid down, I don’t know if she, you know, gave me any oral or whatever `cause I was, I was high, right. And I was erect. I don’t know if she’s stroking or, you know. And then we were gonna have sex in a missionary position, then the panic attack really kicked in and I said “I can’t do this”…

[54] In subsequent questioning by the police officer, the accused gave this account:

Question: Okay, so you’re saying -- did, did, uh, did she give you a blowjob?

Answer: Yeah, kind of. Yeah, she put my cock in her mouth but then we had sex and it wasn’t like a full blowjob, it was half blowjob, half sex and then, you know, you know, we just had sex.

Question: Okay.

Answer: And it was done and it was over with.

[55] At trial, the accused explained his answer to the officer:

CROWN COUNSEL: Q. And with relation to this, you’ve just indicated here that you did have sex with her, that you received a blowjob, it wasn’t a full blowjob, “Then we just had sex.”

A. Uh-huh.

CROWN COUNSEL: Q. Sir, in reply -- pardon me. With relation to those questions and those answers that I’ve just read to you, were you referring to this night, the night that you were shorted -- pardon me, Andrew was shorted?

A. You know what, I can’t really recall if I was talking about -- she came over so many times and gave me so many blowjobs so I wouldn’t know, you know. I might have got confused, you know. Right?

[56] According to the accused’s evidence, he was only on top of JD for 10 to 15 seconds before he went out to the washroom to splash cold water on himself. The accused believes he had a five (5) to six (6)-minute panic attack thinking about the effects of cannabis on his brain, and of cocaine on his heart, as explained to him by a psychiatrist. He had been smoking crack cocaine which gives him these attacks:

Q. Okay. How often do you get panic attacks?

THE COURT: Do you mean now or during that time period?

MR. KENAWY: Q. During that time period.

A. Just when I smoke too much crack. I like -- I used to like sniffing it, but you know, like, all the girls and all the crack whores, they smoke crack, right. So I just -- if I do like, someone puts too big of a chunk down on my pipe or their pipe and I smoke it and hold it in and I’m getting all -- you know, it’s an instant rush to your brain, of course your heart’s beating. And then I think my heart’s beating and I think back in my psychiatrist’s office about this video and I mean this brain thing showing what cocaine does to your brain, how it affects your heart, and that’s how the panic attacks attack me.

After the attack, the accused changed his clothes.

Andrew Returns

[57] On the accused’s evidence, because Andrew was back pounding on the door only 10 to 15 minutes after he had left the room, he had only been alone with the complainant “for like, 10, 14, 20 minutes”. Andrew was again wanting money from JD. Andrew said that the clonazepam worked better if it was crushed and then snorted. The accused gave JD a clonazepam.

[58] JD testified that when Andrew returned, having been gone about 20 to 30 minutes, he again started in about the missing crack cocaine. She did not like Andrew. He was acting like “an intimidating lunatic” – he was “highly agitated”. He gave her a Quaalude which she did not consume. It is “possible” that more crack was smoked.

[59] At a point, Andrew announced that he had found “his own link” and needed a drive to go for more crack cocaine. On JD’s evidence, she felt “obligated to still remain in his custody” on account of the bad deal. In her in-chief evidence, JD variously testified that at about 5:00 a.m. or 7:00 a.m., she drove the accused and Andrew in her Molly Maid vehicle to a rooming house at 6 Merton Road, Brampton as directed by Andrew. Andrew remained aggressive and upset over the missing four (4) grams. He went on about what an idiot she was.

[60] When this subject was initially dealt with in cross-examination, this exchange occurred:

Q. Did you drive him [Andrew] anywhere?

A. No, I did not…I believe he took a cab.

Almost immediately after this answer, under further questioning, JD stated that she may have driven him somewhere along with the accused:

I do recall driving him places. He might have -- I might have driven him when he said he was going somewhere. I believe, yeah, Mark and I and Andrew were in the car. I was -- actually, I do recall driving him based on the fact that he was so annoying I just wanted to get rid of him. And Mark said let’s just drop this guy off. Because at this point whatever was planned wasn’t gonna happen. And we dropped him off. Wherever we dropped him off, I don’t recall. I don’t remember at all where we dropped him off. But I do remember dropping him off and him saying -- and that’s when he made the statement to Mark of “Don’t let her out of your sight.”

The questioning continued:

Q. Okay. And then you recall dropping off Andrew. Do you recall if Mark was in the car for sure?

A. Yes, Mark was in the car.

Q. Are you a hundred percent sure of that?

A. I don’t, I don’t remember.

Q. You don’t remember.

A. I don’t recall. I don’t recall. I don’t, I don’t -- actually, when I dropped Andrew off I believe -- no, `cause I -- I remember I -- I recall dropping him off, I’m not exactly a hundred percent sure if Mark was in the car or not.

Subsequently, JD testified that:

I don’t believe that Mark would be there because I believe when it came down to where -- I believe there was a conversation between Mark and I where he had asked -- I believe he had asked me where I dropped Andrew off. So no, I don’t believe Mark was in the car when I dropped Andrew off when he left.

[61] At trial, JD could not recall where or when she dropped Andrew off or how long a drive it was.

[62] JD recalled going to a basement apartment. When JD suggested that she was leaving, Andrew told the accused, “You gotta be with her” and to not let her out of his sight until “this four grams appears”.

[63] The accused agreed that JD drove Andrew and him to the Merton address in pursuit of getting more crack cocaine. In his in-chief evidence, the accused stated that Andrew remained at the Merton location. Subsequently, in cross-examination, the accused testified that Andrew was back at the rooming house in the afternoon of June 29. On the accused’s evidence, after JD drove him home, he told her that she should go home. She remained. At a point, she advocated with his landlady for a rent settlement and additional hours for him to move out.

[64] JD recalled that at about 7:30 a.m. she ended up back at the accused’s rooming house with the accused. It was still dark out. Andrew remained at the Merton address. She met “Ace”, another roomer, at the Avondale house. There was some indication that the accused was about to be evicted from the rooming house. Cross-examined as to whether she and the accused snorted more crack, JD at first said that they did not. She then stated that she could not recall before saying she might have (“I’m not saying it’s not a possibility”). According to JD, using the accused’s phone, she called C.P. to “tell him what was going on”. She only described to him the bad drug deal. C.P.’s response was, “You got yourself in this mess – you get yourself out of it. You should have just went straight home”.

JD Returns To Accused’s Room

[65] Asked in cross-examination why she did not go home after dropping Andrew off, JD testified that she felt that she had to return to the accused’s room because Andrew expected him to ensure that the screw-up was fixed – “for me to have vacated this situation would have left Mark holding the bag” – “I didn’t want him to pay the price for my screw-up”. Subsequently, the witness testified that she returned because Andrew told her to, saying that he would be returning there.

[66] In cross-examination, JD testified that, on June 29, the drug deal gone wrong was not more important to her than the alleged sexual assault – “the drug deal wasn’t important”.

[67] According to JD, she drove to an ODSP office for a 9:30 a.m. scheduled meeting. Ace and the accused accompanied her on the drive. While they went to McDonald’s and the beer store she picked up her ODSP cheque for about $1,300.

[68] The accused agreed that JD drove Ace and him to the location of her ODSP meeting. He went to the beer store and to McDonald’s with Ace. He did not ask JD for any money from her ODSP cheque and none was offered to him to help settle the debt with Andrew.

[69] Although at one point in her cross-examination evidence JD stated, “once this day was ended and I left that ODSP office, I’ve never talked to Mark since”, JD also testified that the three then drove back to the accused’s place, stopping on route at her residence so that the accused would know how to get in contact with her as Andrew had not wanted her to be out of the accused’s sight. She charged her phone while at her residence. Asked why she did not simply give the accused money from her cheque to give to Andrew, JD testified that Andrew was not around, she had no phone number for him and, in her words, “what’s the guarantee on me that the bounty’s released ‘cause it’s Andrew that’s done the bounty, not Mark?”

[70] JD believes that they may have gone back to the Merton address to see if Andrew was still home. Once there, it was learned that Andrew had been asked to leave.

[71] JD recalled the accused’s landlady attending his room mid-day. She was prepared to return $400 rent money but the accused had to move out. Because the accused was becoming irate, she interceded on his behalf. She calmed him down. An agreement was reached that he had until 4:00 p.m. to move out.

[72] The accused recalled that he spent some of the afternoon packing up his possessions. JD was there for a time before she left.

[73] Jonathan Breyer (“Ace”) testified that he and the accused and others were evicted from the rooming house on the Canada Day weekend of 2012. According to this witness, after his return from the liquor store, he observed JD in the hallway, mid-day, yelling and swearing at the accused’s landlady, saying she was a lawyer and arguing for a return of the accused’s last month’s rent. He recalled that they hung out for a bit in the accused’s room drinking and smoking drugs. To the witness’ recall, JD was laying naked on the accused’s bed.

[74] JD testified that she and the accused were drinking beer. She continued to try to reach Ritchie. Asked in cross-examination why she was sticking around, JD answered, “Loyalty” to the “deal” and the “stupid, stupid, street code”. At a point, on JD’s evidence, she was tiring. She decided to take a “chance” and go home and try again to reach Ritchie.

The Complainant Speaks to Her Boyfriend

[75] JD recalled that she went home. Subsequently, mid-afternoon on June 29, she drove to C.P.'s house where he was living with a woman named Maya. Maya let her in. C.P. arrived a short time later. According to JD, she did not want to talk about personal matters in front of Maya.

[76] JD and C.P. next drove to her residence, about two (2) minutes away, so that she could show him what furniture was to be moved to their new apartment the next day. They were in her place between two (2) and five (5) minutes. She gave C.P. $400 rent money from her ODSP cheque proceeds (“all that he had on his brain was seeing his grandkids, getting this money together for our house…). They also stopped and put some gas in her car.

[77] JD did not tell C.P. what had gone on the night before. She understood that C.P. was going to see his daughter and grandchildren and that they would meet up again later in the day. In her in-chief evidence, JD stated:

I was going to bring it up when I was alone with him…I wanted to get him one-on-one.

And I was hoping at noon that he would be alone and he never was alone.

I …wanted it to be just me and him.

In cross-examination, JD gave this evidence:

I wanted to get him alone.

I cannot sum a story in two minutes.

I said we need to talk before we moved in.

I told him I wanted to sit and talk to him that’s why I pulled him away from the house.

I kept saying I need to talk to you.

[78] At trial, JD maintained that she decided to defer disclosing the assault to her boyfriend until after he had visited with his family. The witness was cross-examined about a response in her police statement as to what was discussed with C.P. while they were driving:

I told him about the choking part um, uh but I had portrayed it not as a sexual assault I, I didn’t mention anything about sex at all…

JD then testified, “I recall talking to C.P. about being choked”. To her, C.P. did not seem concerned.

[79] Between 3:00 and 4:00 p.m., after taking C.P. back to his residence, JD returned to her own residence. JD testified that she finally reached Ritchie by phone. She complained about the deal being short and told him, “It just got me raped”.

[80] When she did not hear from C.P., JD began phoning his home shortly after 6:00 p.m. Maya answered the phone but seemed to be making excuses as to why C.P. could not speak. JD then drove to his residence. Once there, when she said that she had been trying to talk to him, C.P. informed her that he had received a phonecall. He said:

Oh, about your night last night? I’m sure you got fucking laid pretty hard last night ‘cause that’s what I’ve just been told is all you did last night was get laid and get high over at Mark’s place.

[81] On JD’s evidence, she explained to her boyfriend the details of what happened the night before. C.P.'s response was that she wanted it, she liked it and she deserved it. It seemed to her that C.P. did not believe her – there was “complete disbelief”. JD testified that C.P. believed she had cheated on him. At that point she said, “I’ll show you otherwise” and called the police from his home.

[82] C.P. refused to forgive her. He told her that their relationship was at an end. According to JD, she was hurt and sad. It had taken a long time for them to get together. In the witness’ words, “I loved C.P. very much”. She had hoped to go to the police with the support of her boyfriend.

Police Attendance

[83] Peel Regional Police Services (PRPS) Constable Christine Lovell informed the court that at about 8:27 p.m. on June 29, 2012, she was dispatched to a residence at […], in Brampton. On arrival, she observed JD seated on the ground against the garage door. She was crying and appeared upset.

[84] Const. Lovell described the complainant as jumping all over the place in her verbal account. She complained of being raped at about 4:00 a.m. that day some time after a drug deal had gone bad. JD related that her current boyfriend did not believe her. The officer observed two scratches on JD’s right arm and a small mark and bruise on her left arm. The complainant attributed these marks as “all from what happened”. The constable saw no marks on JD’s neck. She complained that her chest hurt from her assailant pressing on her.

[85] Const. Lovell transported the complainant to Chantelle’s Place at the Trillium Hospital. JD seemed distraught – there was stop-and-go crying. The officer did not see the complainant having any difficulty walking.

JD’s Medical Examination

[86] JD testified that she “was checked out by the doctors” and the hospital staff “did a full rape kit”. The complainant recalls that she had to take “a series of lubricants…or medications and what not for whatever happened on the inside” of her vagina.

[87] According to the complainant, the accused’s act of forcing his fingers into her vagina caused “damage” including tearing and scratching. She could not say if there was internal bleeding. JD testified that:

I couldn’t walk for two weeks. I had to walk with my legs spread apart to get upstairs, to do anything. I couldn’t do anything for two weeks from this incident.

JD testified that C.P. had seen that she “couldn’t walk properly” – “He noticed I was limping”. The witness further testified that C.P. could see she “was having difficulty sitting”.

[88] In cross-examination, JD stated that for two (2) weeks she could not sit properly or wear underwear or tight pants. The witness added:

Going to the bathroom was painful. I couldn’t do anything.

I was not able to sit. I wasn’t able to stand. I wasn’t able to walk without looking like I had just gotten off a horse.

[89] In 2012, Rachel Yance, who was a nurse responsible for sexual assault complainant examinations at Chantelle’s Place at the Trillium Health Centre, was on duty when JD was brought in. The witness examined the complainant before completing a Sexual Assault Forensic Evidence Form with her findings. In her testimony, Ms. Yance was entirely dependent on these notes. Knowing that her work can be relevant to court proceedings, the witness recognized the importance for accurate recording. In the absence of argument, or any reference to the other pages of the Trillium Health Centre documents entered as Exhibit #1 (i.e. Emergency and Out-Patient records), the court has only considered the pages referred to by the witness in her evidence.

[90] In examining a patient, Ms. Yance made her own observations and questioned the patient as well.

[91] The nurse recorded that JD complained of internal pain to her vaginal area. She noted scratch marks to the outer aspect of the complainant’s right forearm. The nurse further noted that:

(1) the labia majora and minora, and the posterior fourchette and introitus, appeared normal with no apparent injuries noted

(2) “vagina …normal, no bleeding or injuries noted, although patient complained of pain in this area” and no bleeding or discharge noted

(3) as to the patient’s cervix, “unable to visualize due to patient discomfort during exam”

(4) as to the left and right vaginal walls, “no injuries noted”.

[92] Ms. Yance attempted a speculum exam (a metal or plastic device to open the vaginal walls) to examine the cervix os but was not successful. The witness testified that she could, however, see the vaginal walls and had she observed injuries there she would have noted any tears or cuts.

The Police Interview

[93] In June of 2012, PRPS Constable Donovan Irving was employed in the Special Victims’ Unit. He was assigned with his partner to interview JD at Chantelle’s Place. The officer testified that JD walked into the interview room on her own for the interview. She appeared upset and a bit shaky.

[94] Cross-examined as to whether she admitted to the police smoking crack cocaine on June 29, JD agreed that she only reported that “they” (the accused and Andrew) smoked. The witness explained this inaccuracy by saying that at the time of the interview she was exhausted having been awake for 36 hours – there was no intention to mislead the police.

[95] Const. Irving informed the court that on July 5, 2012 when he contacted JD by phone respecting a sign-off on medical release forms, the complainant was upset and not happy about being contacted. In the constable’s view, JD did “not seem to want to cooperate”.

Subsequent Contacts

[96] The accused testified that he saw the complainant three (3) times after June 20, 2012. Once was at Shooter’s bar where they had a drink and he helped her trade some kush (good marihuana) for crack cocaine. On another occasion, they smoked crack cocaine in the backyard of a townhouse belonging to a friend. The final time was when he tried, through one of his friends, to assist JD to trade marihuana for crack.

[97] In cross-examination, JD agreed that “[p]ossibly” she had seen the accused at Shooters sometime after June 29, 2012. Although she did not think that she spoke to the accused on that occasion, it was possible that she had. After testifying that she would not have had a drink with him, JD then said, “I may have, yes”. The complainant testified that she did not see the accused on the other occasions he described in his evidence.

POSITION OF THE PARTIES

Prosecution

[98] On behalf of the Crown, Mr. Levan submitted that this was a credibility-driven case largely involving the two principal witnesses – the complainant and the accused. Counsel noted the evidence of JD’s demeanour, as reported by Consts. Lovell and Irving, as having corroborative value although not directly.

[99] Mr. Levan noted many points of conformity in the principal witnesses’ evidence. It was submitted that Mr. Singh’s evidence should be seen as unbelievable in particular, but not limited to, consideration of the contradictions between his trial testimony and his statement to the police. Over time, the accused advanced various versions of the relevant date including (1) going to sleep without any sexual contact with JD, (2) being unable to recall if any sexual activity occurred, (3) recalling some consensual sexual activity with JD. It was argued that the accused’s shifting positions reflect an incredible and false account. The court should conclude that there were no reasonable explanations in the evidence for the discrepancies.

[100] Crown counsel submitted that the complainant was a credible witness who did not always portray herself in the best light. There were minor inconsistencies only, which may well be the product of the passage of time and the frailty of memory. JD withstood cross-examination well. Counsel noted JD’s demeanour in the witness stand where she was, at times, teary, as she described events. Ms. Yance was unable to confirm whether JD had internal vaginal injuries because of the limit of her exam in circumstances of the patient’s discomfort.

The Defence

[101] Ms. Kenawy submitted that JD’s account should not be accepted by the court. Counsel placed particular emphasis upon the lack of physically confirmatory evidence – no identified rips or tears in JD’s vaginal area, no bruising on her neck and no DNA evidence.

[102] Counsel noted the inconsistency over time in the complainant’s account of whether the accused penetrated her with his penis on June 29, 2012. Counsel pointed to Const. Lovell’s evidence that JD was walking normally contrary to the complainant’s evidence on the point. It was further submitted that if JD was brutally attacked as she claims, she would not have voluntarily remained in the accused’s presence for hours afterward, been drinking beer with him, and advocating on his behalf with his landlady.

[103] It was submitted that if a sexual assault had occurred, JD had ample opportunity to disclose this to C.P. before she did. It was only after being confronted by C.P. that she had had sex with the accused, risking the end of her relationship with C.P., that she contacted the police. A motive to fabricate existed to try to explain away for her boyfriend consensual sex with the accused.

[104] Mr. Kenawy submitted that the accused, though not a sophisticated person, testified truthfully. At times, apparent differences in his description of events involving JD was confusion over dates in which he was sexually involved with her.

[105] The defence advanced the position that JD’s evidence was not credible. It was submitted that the accused’s evidence raised a reasonable doubt or, in the alternative, on the whole of the evidentiary record, guilt had not been established beyond a reasonable doubt.

ANALYSIS

Governing Principles

[106] “Credibility is a central issue in many criminal cases”: R. v. Osolin, 1993 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 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 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 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para. 44.

[107] The vast majority of sexual and other 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 pp. 453-4; Vetrovec v. The Queen (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

[108] 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 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.

[109] 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 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: R. v. Minuskin (2004), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550; R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.)(QL), at paras. 9-17.

[110] It can generally be concluded where the court rejects an accused’s testimony that that testimony failed to raise a reasonable doubt: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 59; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 27; R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53 (leave to appeal refused [2007] S.C.C.A. No. 69); R. v. T.M., 2014 ONCA 5735, at para. 68.

[111] 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 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 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 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 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4.

[112] 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 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 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 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.

[113] 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 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.

[114] 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 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 211 (SCC), [1996] 2 S.C.R. 458, at p. 459.

[115] 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: R. 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 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.

[116] 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 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 1090 (ON CA), 99 O.A.C. 103 (C.A.), at paras. 11-14.

[117] 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. Dexter, 2013 ONCA 744, at paras. 21, 43-4; 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; Dexter, at paras. 22, 41; R. v. Maxie, 2014 SKCA 103, at para. 44; R. v. Blea, 2012 ABCA 41, at para. 35.

[118] 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.

[119] An allegation of recent concoction need not be express: Ellard, at para. 32; R. v. Stirling, at para. 5; R. v. O’Connor (1995), 1995 255 (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.), at p. 294. It may be implicit (R. v. Owens (1986), 1986 4690 (ON CA), 33 C.C.C. (3d) 275 (Ont. C.A.), at p. 280; R. v. Campbell (1978), 1977 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.), at p. 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 (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: Stirling, at paras. 5, 10. Where admission of prior consistent statements removes a motive for fabrication, this impacts positively upon the witness’ credibility in this limited respect: Stirling, at paras. 11-12.

[120] 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 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 472; 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.

Section 276 Application

[121] At the outset of trial, the court dismissed a defence application to admit evidence of sexual relations between the accused and JD other than those the witnesses would describe at trial as occurring on the date of the alleged offence (2014 ONSC 6304).

[122] During the examination in-chief of the complainant, Crown counsel asked this series of questions:

Q. And with relation to the matter, just a couple of points of clarification. And I likely could have clarified at the time, so I apologize in advance for jumping around a little bit here but. You said that you met Mark?

A. Yes.

Q. You met him in, in Bramalea and you’d seen each other in passing?

A. Uh-huh.

Q. How long had that been? When did you first meet?

A. We had met probably about a week or so before this incident occurred. I met him in an apartment building.

Q. Sorry. You said that you met Mark approximately a week before this? A week or so before this?

A. A week or so. I’m not exactly sure of the exact timing.

Q. And how many times had you seen each other in the interim?

A. A small handful of times before that.

Q. Sorry, when you say “before that” are you saying before the incident?

A. Before the incident, yes.

Q. So where were these -- like, where did you meet him; what was going on?

A. I remember seeing him -- I remember, I believe that I had been in his rooming house prior to and then I -- we went to Lisa Street. I don’t recall the exact locations of every visit that I seen him at. But I mean -- I believe most times I would see him at 40 Avondale.

Q. Okay. And without getting into anything specific or anything, what was the nature of your relationship with Mark during that period?

A. We had a friendship. I believe we had a friendship.

Q. In terms of this friendship as between yourself and Mark, can you -- is this just an acquaintance, is it deeper than that? Just a little bit more sense of the nature of the relationship as between you.

A. I, I -- for me I think my relationship with Mark was -- I remember one incident with Mark and I where we were walking in a parking lot at Bramalea City Centre and he picked me a flower and I asked him why but he said he just saw that flower and he wanted to give it to me. He just picked it off the ground, but at the end of the day -- he was, he was a really nice guy. I don’t know if romantically we would have made it out that way, but he was a really nice guy. Absolutely. He’s just -- we had a, we had a definitely a, a, a very -- we had a close friendship I would say. At least in my mind we did.

Q. And when you say close friendship, did it ever become more than a friendship or?

A. We had sexual encounter.

Q. Okay. Let’s not talk about that, but it was -- so when you say....

(emphasis added)

[123] At this point, the complainant was excluded from the courtroom so that the prosecutor could explain to the court why, in light of the s. 276 Ruling, he had asked JD increasingly pointed questions about whether her relationship with the accused ever extended beyond a close friendship. The approach was bound to elicit the complainant’s response that there had been a sexual encounter prior to June 29, 2012.

[124] Crown counsel was admonished after being unable to provide any reasonable explanation for leading JD into the subject of prior sexual activity. The court ruled that JD’s response, then in the record, was admissible for the overall narrative, to indicate that there was, prior to June 29, a prior sexual relationship of some nature between JD and the accused.

[125] The defence at no time renewed its s. 276 application.

[126] During the accused’s evidence in cross-examination, in particular in some of his efforts to explain responses in his videotaped statement to the police, he relied on being confused as to which sexual encounter with JD he was being asked about or recollecting. An example of such an exchange is the following:

Q. In the circumstances, is it fair to say that that response doesn’t -- it doesn’t map on to what you’ve just told us, that is to say, ...

A. Well,...

Q. ...you don’t think....

A. ...the thing is, when he was asking me these questions, I’d been with her a bunch of times and I didn’t know what time she was -- he was talking about. The time I think -- I thought he was talking about was in my friend’s back yard `cause that’s the time....

Q. Let’s not talk about times other than this, okay.

THE COURT: Well, no...

CROWN COUNSEL: Q. That’s not what...

A. Okay, so I got...

THE COURT: Stop everybody. When I speak no one else speaks. That’s a legitimate answer to the question that was asked.

CROWN COUNSEL: Certainly. Your Honour, I just didn’t want to get into -- or to evolve into a 276 issue.

[127] Accordingly, although the complainant spoke only of “sexual encounter”, in his evidence the accused spoke of multiple sexual relations with JD. For the purposes of assessment of Mr. Singh’s evidence, the court is prepared to assume the existence of such relations, in determining whether the accused was actually confused during police questioning on account of such history.

Fact-Finding In This Case

[128] Counsel correctly characterized the determination of the verdict in this case as largely a credibility-driven assessment having regard to the W.D. guidelines informing application of the beyond-a-reasonable-doubt burden upon the prosecution. The credibility focus engages scrutiny of the testimony of JD and Mark Singh. Cross-examination of the remaining witnesses did not challenge the trustworthiness of their evidence.

[129] The trial record falls to be considered in the absence of testimony from Andrew, Ritchie or C.P..

[130] Mark Singh presented as a generally unimpressive witness in both testimonial content and manner of presentation.

[131] That said, the accused denied sexually assaulting JD in the manner she described to the court.

[132] Apart from the complainant’s evidence to the contrary, features of the accused’s evidence at trial tended to count against the credibility of his denials including the following:

(1) The accused variously stated both that there was no fellatio, that there may have been oral sex, there was half a blowjob, and finally that there had been oral sex.

(2) In his police interview, the accused initially stated that he had and the complainant did not have sexual relations on June 29, 2012. The witness’ explanation at trial that he was confused about the police interrogator’s question in light of the number of times he had had sex with JD was entirely unconvincing.

(3) It was only after the police questioning raised the prospect of forensic testing of seized items, that the accused was prepared to tell the police that “maybe” he had had sex with JD but, in his words, “we wore a condom”.

(4) The accused variously testified that the complainant pulled his pants down and that he pulled his own pants down.

(5) In describing his perception that JD was consenting to sexual contact with him, based on her rubbing his back and chest, the accused acted on assumptions about the way things “usually work”.

[133] Turning to the complainant’s evidence, JD provided an account of non-consensual fellatio, digital penetration and sexual intercourse. Proof of any aspect of this alleged sexual misconduct on the accused’s part would found liability.

[134] JD testified in some detail as to how she was assaulted including not only the alleged physical acts, but also what was said, clothing worn and shifted, the positions of the parties, her sensations, the duration of various events and the accused’s demeanour. On its face, the degree of detail is capable of standing in contra-distinction to a generic fabrication.

[135] Other features of the case may be seen as supportive of the credibility of JD’s allegations including:

(1) her distraught condition on June 29, 2012 when observed by Consts. Lovell and Irving

(2) the complainant’s emotionally upset state at times in the witness box

(3) minor scratches on the complainant as observed by Const. Lovell and Ms. Yance

(4) the accused’s evidence that, before the point of the alleged assault, he asked Andrew to give him a half an hour with JD thinking that sex might occur

(5) the prospect that the accused’s act of reducing JD’s debt for the shorted cuban by $150 raised in his mind a sense of entitlement to exact repayment as he saw fit from the complainant.

[136] On JD’s evidence, in less than a day, she reported being sexually assaulted to Ritchie, C.P. and the police. Police witnesses confirmed JD’s disclosure to the authorities. Accordingly, at least at a superficial level, discussion of delayed complaint would not be necessary.

[137] In terms of JD’s demeanour while testifying, including under the pressures of cross-examinations, there were no discernible cues upon which the court could confidently act in inferring the believability, one way or the other, of JD’s evidence.

[138] In the balance, there are other matters deserving of consideration – matters which may signal a need for caution before accepting JD’s account of being sexually assaulted:

(1) At the preliminary inquiry, on the subject of whether sexual intercourse occurred, the complainant initially testified that she could not recall and then did not think so. Only after refreshing her memory from her police statement, did JD state that she had been penetrated by the accused’s penis. Cross-examined at trial on this issue, JD stated: “I’m not sure if he entered. I’m not sure at this time. I don’t know”.

(2) At trial, only after refreshing her memory from her police statement did JD describe being choked to the point of nearly losing consciousness.

(3) After the complainant refreshed her memory from her police statement, she changed her evidence to say that the accused had stopped and started sexual intercourse more than once.

(4) The complainant described the accused’s act of jamming four fingers sideways into her vagina as ripping, scratching and tearing her and causing extreme pain. The result was said to be a noticeable inability to sit or walk properly. There was no evidence that anyone, such as the police officers, saw this disability. Ms. Yance’s examination did not identify any bleeding or damage to JD’s vagina or vaginal walls.

(5) No marks were observed on JD’s throat by the police or Ms. Yance.

(6) On her evidence, after being sexually assaulted, JD remained with the accused on account of the outstanding $90.00 owed to Andrew for the shorted cuban. Asked several times at trial of her views of Andrew, it seemed that JD considered him to be more annoying than dangerous. There was evidence at trial that on June 29, 2012, after the alleged assault, JD actively advocated on the accused’s behalf with his landlady, drove him to McDonald’s, drank beer and, smoked crack with him, and lay naked on his bed. Further, JD did not give the accused cash from her ODSP cheque to give to Andrew or ask the accused to contract Andrew to release the bounty.

(7) Turning to the disclosure process to C.P. as described by JD, although the witness maintained that the sexual assault was more important than the bad drug deal, she only told C.P. about the drug deal in their phonecall early on June 29; later, in the afternoon, she characterized the assault to him as a non-sexual choking; despite wanting to get C.P. away from his apartment in the afternoon to tell him about the alleged sexual assault, she never told her boyfriend, “I was raped”.

(8) The complainant only contacted the police after C.P., her boyfriend whom she loved and with whom she was about to co-habit, confronted her with smoking crack and having sex at the accused’s apartment.

(9) In her statement to the police, JD did not acknowledge that she had smoked crack cocaine on June 29, 2012 – she claimed that the accused and Andrew were smoking.

(10) The complainant’s stated memory on a number of other matters, arguably peripheral in the overall context, were nevertheless inconsistent including the circumstances of driving Andrew to secure more crack cocaine (Andrew went alone in a taxi/she drove Andrew along with the accused/only she and Andrew went), why she returned to the accused’s room after the alleged assault (Andrew instructed her to do so/Andrew told the accused to keep her in his sight/she alone decided to in order to protect the accused), whether she smoked more crack cocaine with the accused in the hours after the alleged assault (she did not/she has no recall but it is possible), and whether JD spoke to the accused after June 29, 2012 (she did not/possibly she did).

[139] Undoubtedly, as with so many cases, features of the evidence as discussed above, could have various interpretations. For example, the scratches on JD’s arms may be entirely unrelated to the alleged assault. She did not herself testify that that was the cause of the minor scratches. The complainant’s distraught condition may be explainable by the loss of her relationship with C.P.. On the other hand, injury may have been present in JD’s vaginal area but unseen by the nurse because of the limited scope of the examination on account of patient discomfort. In addition, JD’s act of returning to the accused’s room after the alleged assault may well have been the product of a street code of drug users which is simply not logical for ordinary persons.

[140] This said, troubling features of the evidentiary record, referred to at para. 138 above, are not easily dismissed - in particular, a failure to recall vaginal penetration, lack of immediate recall of a serious choking, the nature of JD’s behaviour on return to the accused’s room, and the circumstances of the incremental disclosure to C.P..

[141] Whether from a combination of years of abuse of crack cocaine, ingestion of the drug during June 28/29, 2012, the passage of time since the relevant events, or conscious manipulation of the narrative of what in fact occurred, the sworn accounts of the principal witnesses are sufficiently unreliable to foreclose any reconstruction with probabilistic confidence as to what transpired in the accused’s rooming house.

CONCLUSION

[142] The accused is found not guilty.

HILL J.

DATE: December 16, 2014

COURT FILE NO.: CRIMJ(P) 427/13

DATE: 20141216

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. MARK SINGH

BEFORE: HILL J.

COUNSEL: R. Levan, for the Crown

A. Kenawy, for the Defence

REASONS FOR JUDGMENT

HILL J.

DATE: December 16, 2014