R v DMC, 2015 ONSC 1726

COURT FILE NO.: 4-705/14

DATE: 20150317

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v DMC

BEFORE: E.M. Morgan J.

COUNSEL: Kathy Nedelkopoulos, for the Crown

David Goodman, for the Defendant

HEARD: February 9-11, and 24, 2015

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

REASONS FOR JUDGMENT

[1] The Defendant is charged with eight counts of assault and one count of sexual assault on his former spouse, MV. He is also charged with mischief in respect of the disappearance or damage to MV’s property and clothing.

[2] In the indictment, the incidents in issue are said to have occurred between June 2009 and October 2012. At trial, however, it became clear that the starting date is incorrect, and that they are in fact alleged to have occurred between June 2010 and October 2012, either during or in the couple of years following the end of the short-lived marriage of the Defendant and MV.

[3] The main witness against the Defendant was his ex-spouse, MV. She testified that the Defendant was the first boyfriend she ever had and that when she met him and during the time leading up to their marriage she “was madly in love with him.” She cannot recall when they met, although she seemed to think that it might have been cold outside. She likewise cannot recall how long they dated before getting married.

[4] The Defendant and MV were married on May 29, 2010. I know this from their marriage certificate, which was produced by the Defendant and was made an exhibit at trial. I would not know it from the testimony of MV alone. At the preliminary inquiry in this matter, MV had stated that they were married in 2009. She afterward gave a follow-up statement to the police in which she corrected this, and confirmed that she and the Defendant in fact were married in 2010.

[5] As for the specific date in 2010, MV could not recall this with any precision at trial. She testified that she and the Defendant were married either on May 22, 2010 or May 29, 2010, she could not quite remember the exact day.

[6] MV testified that she is “awful” with dates and times. She stated that she has memory problems. As she put it on the witness stand, phrasing it in a way that can only be described as understatement: “I try to remember, but it’s really hard for me.”

[7] In fact, MV’s memory seems to be faulty for more than just times and dates. I say this with the greatest of respect for MV as a complainant and a witness. I am fully conscious of and sympathetic to the fact that the episodes to which she testified were emotionally charged for her. However, at trial and apparently throughout the preliminary and investigative stages of this case, her memory often failed her for essential facts.

[8] For example, at trial MV testified that at some point during their marriage the Defendant forced her to have anal sex, and that this caused her to bleed and put her in great pain. She could not say when this happened or what exactly led up to it, but she did insist that it was a vivid memory. In cross-examination it was pointed out to her by defense counsel that she had never told this story, or mentioned this painful incident, to the police when she have her statement to the investigator. MV’s immediate response was, “I forgot.”

[9] MV testified that she had twice during the course of their marriage left the Defendant for short stints after major fights. She could not recall what the fights were about, but she said that both times she went to stay with her friend, S.. According to MV, her own family members had distanced themselves from her because they disagreed with her decision to marry the Defendant, and her best friend S. was the only person in whom she could confide and place her trust. And yet, MV testified that she does not know S.’s last name, and cannot recall where she lives. No one named S. was located by the Crown or appeared as a witness at trial.

[10] MV also testified that she specifically recalled the Defendant once spitting on her during a fight. She said that this fight stood out in her mind as having occurred just after the Defendant came out of the washroom. When questioned more closely on cross-examination, she said that it may have been that she went the washroom herself rather than the other way around. At the preliminary inquiry, she testified that, “He went to the washroom to freshen up or I did. I can’t really recall.”

[11] At the trial and at the preliminary inquiry, she testified that she and the Defendant had sex on numerous occasions when she submitted to his will but did not actually consent. In her testimony at the preliminary inquiry it was obvious that her memory had caused her to mix many such allegations together: “It’s many times that that happened, like around seven – seven – five, seven – no, four – seven times, seven times.” At trial she remembered that is was, “Like ten or more times”, although she did not relate ten separate incidents of non-consensual sex.

[12] One occasion which MV said that she distinctly recalled was a fight in which she ended up with an injured rib. She said she may have had some bruising, and that she remembered her rib being very sore. According to MV, the Defendant “body slammed” her – i.e. he shoved her with his shoulder or elbow – and she fell on the corner of the bed frame. She cannot, however, recall which side of her body was struck or whether the pain in the ribs was on the left side or the right. She also cannot recall what time of day this was or how long the incident lasted.

[13] MV testified that the Defendant had taken or sold much of the furniture she bought for the home in which they lived. She also said that he had thrown out or ripped up her clothing. MV could not, however, recall where she had purchased the furniture or the clothing, and had no receipts for the purchases or any replacement purchases. Her memory was hazy about what furniture she actually had bought and lost, and she could not recall the value – at the preliminary inquiry she said the total value was around $2,000, while at trial she recalled it being between $3,000 and $4,000. Despite not being able to say how much her possessions cost and where she bought them, she did, incongruously, allow herself to boast, “I buy the best.”

[14] Perhaps the most pervasive manifestation of MV’s poor memory is her manner of describing events in a conditional passive voice. Her testimony was replete with incidents introduced with the vague phrase: “He would come home and…” Crown counsel suggests that this is just a turn of phrase that MV is in the habit of using. That may well be, but when combined with her serious memory issues, it lends a note of great skepticism to her testimony.

[15] While I appreciate that a complainant witness cannot be expected to have taken note of the precise circumstances of any given event, no amount of general comments on the Defendant’s behavior can substitute for evidence of a specific incident at a specific time and place containing specific details. She was unable to relate when any of the alleged incidents occurred, where the Defendant was coming home from (although the evidence was clear that he was not working as he had no employment visa), what prompted or preceded any specific incident, what else happened that day either before or after the alleged event, whether or not alcohol was involved (of which there was no evidence), etc.

[16] The most startling aspect of the evidence in this case is the discrepancy between the Defendant’s and MV’s description of the duration of the marriage. Once it was pointed out to her that she married the Defendant in late May 2010, she was certain that she left him for good in late December 2010. As indicated, she recalled leaving twice for short durations, supposedly to spend time with S. – once for a day and another time for two days – and that she moved out permanently after enduring what she described as 8 months of a volatile and violent marriage.

[17] For his part, the Defendant testified that after about 6 weeks of marriage – by mid-July 2010 – MV had left and never returned to live with him. He further stated that in July 2010 he started dating another woman, T.B., and that by September 2010 he was staying most nights at T.B.’s apartment and spending all of his time with her.

[18] If the Defendant’s version of the marriage is true, it would cast an unanswerable question over much of MV’s testimony. The violent incidents that she attributed to the Defendant during the course of their marriage did not happen within the first few weeks after the wedding. MV specifically testified that the first month or so of their marriage was fine, although she said that the Defendant frequently did not like the food that she prepared. Only after the first month did he “go cuckoo” on her, as she put it.

[19] Unlike S., who could possibly have corroborated some aspects of MV’s testimony about her relationship with the Defendant, T.B. did testify at trial. She specifically confirmed that she started seeing the Defendant sometime in mid-July 2010. She indicated that she was certain of the time of year because it coincided with the birthday of her late brother, which is a very important day in her family.

[20] T.B. also confirmed that by September 2010 she was spending all of her time with the Defendant. She produced photographs from her cell phone that showed the two of them with friends at a night club during that time. In addition, T.B. described a late fall or winter 2010 visit to the Defendant’s aunt’s home where MV and the Defendant lived while they were married. She testified that she never saw MV there, and that there was no sign of any women’s clothing or other indication that the Defendant was living there with anyone other than his aunt and her family.

[21] T.B. and the Defendant both indicated that they broke up some time prior to the trial. While they are still friends, there is no ongoing romantic relationship between them. T.B. struck me as a credible witness, and is as close to a disinterested, objective witness as an intimate case like this can produce. Her evidence in support of the Defendant’s account of the very short duration of his marriage to MV is therefore quite significant.

[22] Not only do the Defendant and MV have starkly different views of the duration of the marriage, they have different views of where, exactly, they lived. While they both agree that after their wedding they moved in with the Defendant’s aunt and her family, MV said that the two of them lived upstairs and that the aunt and her family lived in the basement, while the Defendant said that the living arrangements were reversed – that his aunt and her spouse and child lived on the main floor and upstairs, and he and MV used the basement apartment.

[23] When T.B. came to visit, she said that the Defendant was apparently living on the main floor with the aunt’s family and sleeping on the sofa rather than in an upstairs bedroom. He explained that after MV moved out in July 2010, his cousin and her husband had moved into the basement and he was accommodating them by sleeping on the sofa on the main floor.

[24] Crown counsel submits that, “Where they were living in the residence is not a point of an adverse inference either against [the Defendant] or for the Crown, or vice versa.” I agree that nothing factually turns on which floor the married couple occupied during the time that they lived at the Defendant’s aunt’s house. Nevertheless, I find the debate insightful precisely because nothing should turn on it. One of them – either the Defendant or MV – did not recall the matter correctly. I can safely assume that whichever one is incorrect is making an honest mistake born of faulty memory. Neither MV nor the Defendant has anything to gain or any reason to lie about which floor they lived on.

[25] The Defendant testified that his aunt had previously furnished the basement of her house so that his grandmother would have someplace to stay when she visited. As a matter of logic, it seems unlikely that the Defendant’s aunt and her spouse and child would turn over their own residence on the main floor and upstairs of their house to the newlywed couple in May/June 2010 and move themselves into the guest apartment in the basement. It does seem likely that the cousin and her husband who were living in the basement when T.B. visited would have moved into the space vacated by MV and the Defendant. MV’s version of the living arrangements, in which she and the Defendant took over the aunt’s house and the aunt and her family were relegated to the guest apartment in the basement, while certainly not impossible, seems quite improbable.

[26] I surmise that MV simply had another lapse in memory with respect to whether she lived upstairs or downstairs at the aunt’s house. Again keeping in mind that neither the Defendant nor MV has anything to gain from misstating or fabricating which floor they lived on, it is likely that the Defendant has a better memory of the living space. It was his aunt’s house, and he lived there longer than MV did.

[27] Given that the memory of whether one lived in the basement or on the main floor and upstairs of a house would be a visual type of memory, MV’s mistaken version suggests that she might have lived there for a very short time. This, of course, coincides with the Defendant’s description of their marriage. She is likely to have had a weaker memory of the house if she lived there for six weeks than if she lived there for eight months.

[28] According to MV, the Defendant’s abusive conduct continued even after she moved out of the house and their marriage broke up. At trial, MV described four incidents – one more than she had described at the preliminary inquiry – where the Defendant accosted her out of the blue after she had left him and their marriage had effectively ended.

[29] By way of background to these incidents, sometime after the end of the marriage MV became pregnant. The Defendant is not the father of the child as the pregnancy apparently occurred after they were separated. MV testified that despite the fact that they had already broken up, the Defendant was insistent that she not have the baby. She testified that at the 3-4 month point in her pregnancy, the 6 month point, the 8 month point, and once after the baby was born, the Defendant approached her as she was taking a walk, and that he startled her and physically assaulted her.

[30] With respect to the first of these episodes, at 3-4 months into her pregnancy, MV related that she was walking to do some shopping near where she lived in the Jane and Wilson area of North York when the Defendant jumped into her path out of nowhere. She said that he startled her by saying “Boo”, and then assaulted her. She testified that she fell to the ground after he pushed her, and that she got a scratch on her hand from the fall. She said that she then yelled at him and swore, calling him a bad name.

[31] MV testified that the Defendant did the same thing 6 months into her pregnancy. Again, she said that he appeared out of nowhere and pushed her down for no apparent reason.

[32] At the 8 month point in her pregnancy, she described an incident where he popped out of a white van as she was walking by. The white van was not otherwise identified, but MV said that the Defendant again pushed her and she fell down. She testified that her stomach hurt after the fall, but that she never mentioned it to her doctor even though she was in advanced pregnancy and under regular medical care.

[33] The final straw occurred after MV’s baby daughter was born, when the infant was 1½ years old. As MV related it, she was walking with her daughter in a stroller on Chalkfarm Drive, also near Jane and Wilson, when the Defendant materialized out of nowhere and said, “I told you not to have that baby.” MV said that he pushed the stroller with his feet, and the baby fell to the ground crying, after which he grabbed MV on the arms and pushed her. MV exclaimed, “What the hell’s wrong with you, leave us alone.” MV said that she and the baby had no injuries, but were shaken up.

[34] All four of these encounters happened in the daytime; MV testified that she never left her apartment in the evenings out of fear that the Defendant would find her. Although the encounters with the Defendant all happened in daylight in an urban area in walking proximity to stores and supermarkets, and involved both physical altercations and yelling, no one apparently saw or heard anything. MV cannot identify any people who were in the area, did not say anything or signal to anyone, was apparently always walking alone along what was described as a somehow isolated sidewalk in a crowded North York neighbourhood, was always accosted just enough to be shaken up but not enough to seek help even when pregnant or when her infant daughter was pushed to the ground.

[35] Two days after the incident with the child in the stroller, MV went to the police to complain about the entire history of her relationship with the Defendant. She doesn’t remember the date. “I’m not very good with dates,” she once again confessed. She then explained, “I told the police what happened. I just want him to stop, that’s all.”

[36] Frankly, there is something other-worldly about the post-breakup incidents as narrated by MV. They seem to have occurred in an isolated bubble of time and space, where no one but the Defendant and MV exist. MV lived alone, walked alone, had sole use of all sidewalks, was the sole customer heading to nearby stores, and was never in view or earshot of anyone else. Likewise, the Defendant is described as driving alone on the roads in a non-descript van, springing unseen out of the bushes on busy commercial streets, making a series of noisy commotions and physical spectacles while no one paid attention, and knocking over a pregnant woman and an infant in a stroller, all without appearing on anyone’s radar.

[37] In a final bizarre episode, the Defendant and T.B. both described a meeting that they had with MV at a Coffee Time restaurant. According to the Defendant, this meeting took place in October 2011 – i.e. either 16 months or 9 months after the breakup of their marriage, depending on whose version of the marriage one believes.

[38] As background to this meeting, the Defendant and MV both agree that once they were married, MV, who is a Canadian citizen and has lived in this country since early childhood, became the Defendant’s sponsor for immigrating to Canada. The Defendant indicated that MV not only sponsored him, but helped him with the application forms as he had just arrived from Argentina and did not know English. MV relayed a different version of the application process, and testified that she did not understand anything about the immigration forms and that the Defendant filled them in and submitted them himself.

[39] MV also stated, and the Defendant seemed to agree, that MV paid the application fees for him. The Defendant conceded that he did not have any money of his own, as he had no visa status and was not permitted to work in Canada. He said that MV constantly taunted him about having no money and that this was a point of humiliation for him, but he claimed that he endured it because he was in love with his wife.

[40] The Defendant testified that early in the fall of 2011 – well after the marital breakup regardless of which version of the marriage one accepts – he received a letter from Canada Immigration indicating that MV had cancelled her sponsorship of him and that his application was terminated. Within a few weeks of receiving this, however, he received a call from MV telling him that she had received a letter from Immigration Canada stating that he had been accepted for permanent resident status. The Defendant said that MV indicated that she wanted to meet to give him the document, and they arranged to meet at Coffee Time.

[41] According to the Defendant, MV arrived at Coffee Time with her mother and the Defendant arrived there with T.B.. He testified that MV never showed him any documents from Immigration Canada, but that she demanded a payment of $4,000 from him in order not to cancel the sponsorship. He said that he refused to pay it, and MV became very irate. In fact, he said that she threatened his life and the life of his young son back in his native Argentina.

[42] The Defendant said that although he did not give in to her demand to pay her thousands of dollars, he did agree to pay her $200 that was required for the immigration application. It is fair to say, however, that the Defendant was not quite rational in explaining what this payment was for. Since the Defendant said that he already had received a letter terminating his application, there would not seem to be any processing fee to pay. However, the Defendant insisted in his testimony that he provided money for something related to the application.

[43] The Defendant also said that he asked T.B. to go to the bank with MV to ensure that she paid the $200 fee. Again, the Defendant’s testimony on this point seemed less than logical. It was entirely unclear how T.B. was supposed to ensure that MV used the money for the immigration application. According to T.B., she accompanied MV to the bank and observed that MV simply took the cash to the teller and deposited it.

[44] In another twist to the Coffee Time story, the Defendant stated that he never actually introduced T.B. to MV, and that T.B. sat at a separate table from where the Defendant sat with MV and her mother. That would mean that T.B., a perfect stranger to MV, went to the bank with MV to supervise her deposit of the $200.

[45] For MV’s part, she agrees that she was the Defendant’s sponsor for his immigration application. She also agrees that after much confusion with the process, she finally managed to cancel her sponsorship of him after their marriage broke up. She also concedes that she did speak on the phone with the Defendant about his money matters and his immigration application several times after leaving him. However, she testified that she has never met T.B., did not meet the Defendant at Coffee Time, did not demand any payment from him, and did not issue any threats against him or his son. MV’s mother did not testify at trial, and so I do not know what she would have said about the Defendant’s description of her participation in this mysterious meeting.

[46] What MV does say, and what the Crown spent considerable time attempting to establish, is that the Defendant only married MV so that he would have an immigration sponsor. It would appear that the Defendant had expected his father, who moved to Canada many years ago, to sponsor him, but by the time the Defendant arrived from Argentina he had turned 21 and a parent could no longer be his sponsor.

[47] The Crown’s theory is that the Defendant was desperate to find a Canadian citizen to sponsor him, and he seized on MV, who was a vulnerable young woman, as soon as he met her. As already indicated, MV testified that the Defendant was her first boyfriend. She also testified that she was very overweight her entire life, and had just undergone gastric band surgery and was relatively thin for the first time. This apparently put her in a vulnerable frame of mind. She suggested in her testimony that she was very gullible and naively susceptible to the Defendant’s advances when they met and he began to court her.

[48] The Crown also points out that in cross-examination T.B. said that she, too, had discussed with the Defendant the prospect of marrying him and sponsoring his immigration application. This, the Crown suggests, indicates that the Defendant was continuing to shop for a replacement sponsor when he met T.B., and that his relationships with women are strategic and are a product of his self-interest rather than of love as he professes.

[49] The Defendant’s speedy marriage to MV, and the way that its timing coincided with his immigration needs, is too strong to ignore. MV’s emotional outbursts during her testimony suggest that the relationship was indeed difficult for her, and that she felt used and hurt by the way things turned out with Defendant.

[50] The Defendant’s ability to bounce into a new relationship with T.B. within six weeks of his marriage suggests that he was in strategic command of his own emotional life. Unlike MV, he did not particularly suffer the breakup or show much vulnerability. There is evidence that points to him being manipulative and not particularly attached or sympathetic to his wife. The Crown has demonstrated that the Defendant may be, for want of a better word, a cad.

[51] But he is not charged with marrying for social advantage instead of love. He is charged with assault, sexual assault, and willful destruction of property.

[52] In all of MV’s testimony, she provided very little coherent information with respect to these charges. She said that she lived with the Defendant for eight months, but T.B.’s corroboration of the Defendant’s evidence indicates that she more likely lived with him for six weeks. She says that she was continuously beaten from May 2010 to December 2010, with the exception of the first month, and it turns out that she may barely have been together with the Defendant past the first month.

[53] MV cannot specifically pinpoint when any particular episode occurred, and her memory is so clouded that even those details that she does recall tend to change in significant ways with each telling. She ran away twice to her best friend who has no last name and lives nowhere. She seems not to even remember which floor of the house she lived on with the Defendant, let alone what went on there.

[54] Further, MV’s testimony with respect to the post-breakup encounters with the Defendant has an air of unreality about it. The Defendant appears on four different occasions out of nowhere, assaults her and her infant, shouts at her to frighten her and she yells and swears back at him, all in an urban shopping area in broad daylight, and there is never a person in sight.

[55] As for the Coffee Time meeting, I do not know what to think. The Defendant’s story is admittedly strange; he brought T.B. to the meeting for reasons related to his immigration application and says that he paid $200 to MV but cannot say for what. MV says that there was no meeting at all, but that they spoke about money and the immigration issues on the phone.

[56] Finally, MV alleges that her clothes were destroyed and her furniture went missing, but cannot remember with any degree of certainty what furniture she lost and what clothes were gone. She has no receipts, either of the items she claims to have lost or of items that would have replaced the lost clothes and property. She has no memory of where she bought anything, and no ability to place a credible value on the things she supposedly lost. Moreover, the Defendant testified that the house they lived in was already furnished by his aunt, and T.B.’s observations indicate that it continued to be furnished after MV’s departure.

[57] In a case like this, where the Defendant testified in his own defense, I must keep in mind the admonition that a criminal trial is not a credibility contest between witnesses. As Cory J. put it in R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para 10, the trier of fact “need not firmly believe or disbelieve any witness or set of witnesses.” I must proceed in accordance with the instructions that Cory J., at para 11, states that a jury would properly have received here:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, 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.

[58] The evidence must be considered in its totality; “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v. L (CO), 2010 ONSC 2755, at para 6. I cannot convict the Defendant if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 1979 CanLII 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).

[59] Anyone listening to the vague, uncorroborated assertions and clouded memories of MV, and the explanations of the Defendant and the at least partial corroboration by T.B., would have serious doubts about where the truth of the story lies. I do not entirely disbelieve MV; something very hurtful happened between her and the Defendant. I just do not know whether it was strictly an emotionally trying experience for her, or a physically assaultive one.

[60] In addition, I have not heard any credible evidence with respect to the allegation of mischief to property. MV could not itemize a single article of clothing that she is missing, and I find it doubtful that she actually provided furniture for the Defendant’s aunt’s house. If I were to believe MV, she and the Defendant were living in the main part of the house and not in the basement, and so MV would have furnished the entire home in which the aunt and her family lived both before and after MV’s arrival and departure.

[61] Since I am left with a reasonable doubt as to the allegations against the Defendant, he is not guilty on all counts. The charges against the Defendant are dismissed.

Morgan J.

Date: March 17, 2015