R. v. R.H., 2015 ONSC 193

COURT FILE NO.: 12-205

DATE: 2015-01-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.H.

Defendant

S. Tarcza, for the Crown

C. Abraham, for the Defendant for Cross-examination of Complainant & Defendant for Himself

HEARD: January 5, 7,8, & 9/ 2015

Justice B. Glass

There is a Publication Ban of the Information That Might Identify the Complainant or Lead to the Identification of the Complainant

Introduction

[1] The Defendant was charged with two counts of sexual assault upon a step-daughter in June and July 2011. The alleged events occurred when the Defendant was providing driving instructions to the complainant.

[2] The complainant was desirous of obtaining her G2 driving licence so that she could drive when attending post-secondary educational facilities. She and her boyfriend had been using an automatic transmission vehicle; however, it was ruined in an accident. The vehicle she was anticipating using for school was a Pontiac Sunfire owned by the Defendant. It had a standard transmission.

[3] The complainant lived with her boyfriend and their child. She was expecting another baby at the time of these allegations.

[4] The driving instructions occurred on rural roads. The motor vehicle used was a standard transmission vehicle.

The Evidence

[5] The complainant testified that the Defendant recommended that she wear a dress, he placed his hand on her leg and moved up towards her groin area cupping his hand at her vagina, told her that she had to get out of the vehicle and strip off her clothing and do jumping jacks because she had not done the gear changing properly, do a strip tease in the back of a pickup truck on another occasion, and on one occasion engaged in sexual intercourse on a country road. She testified that the Defendant had video-recorded the strip tease but did not have it anymore because it was erased. Further, she had kept her underwear with semen on it, but then no longer had it. She did not tell the police of the underwear with semen. She did not mention the video.

[6] The incident of sexual intercourse was described by the complainant as being on a rural road at the passenger’s side of the pickup truck of the Defendant. I note that this was not a time that the standard transmission Pontiac was used. The Defendant and the complainant had driven to get cigarettes for the mother of a friend of the complainant. The complainant had been encouraged to go by her mother and her boyfriend. The complainant said that the Defendant flipped her over and pulled down her pants, wetted his hand to moisten her vagina and inserted his penis into her vagina. He ejaculated within her body.

[7] The complainant had kept the clothing with semen on it; however, it no longer exists. She is not able to explain what happened to it.

[8] The Defendant denied such activity. He provided lessons for driving a motor vehicle, but the alleged sexual intercourse and forced stripping incidents were not events that occurred. At the first driving lesson, the Defendant thought the complainant had worn a dress because she was going out later. He did not recommend that she wear this clothing. Further, he acknowledged that he placed his hand on her knee to show her how to use pressure on the clutch when commencing movement of the vehicle. I assume this was her left knee for the clutch, but I do not think anyone specified that the clutch on a standard Pontiac would be activated with one’s left foot. There was no suggestion that this was a vehicle with a clutch pedal used by one’s right foot. The Defendant described how a person might pop a clutch whereby a vehicle would lurch and stall. He did not move his hand from her knee up to her vaginal area nor did he touch her vaginal area. He did not insert his finger into her vagina.

[9] The Defendant denied imposing punishment upon the complainant for popping the clutch or for other ways in which she drove the vehicle. At no time did he direct her out of the vehicle and to remove her clothing followed by doing jumping jacks or a strip tease dance.

[10] The Defendant denied any sexual intercourse with the complainant. Basically, he did not remove her clothing at all, he did not touch her vagina, he did not insert his penis into her vagina, nor did he ejaculate semen within the complainant’s body.

[11] Exhibit 2 is a book of some text messages referring to the allegations and replies by the Defendant. The Defendant explained that many of the comments made were sarcastic as if he were saying that sure he did the acts as if that were preposterous. Some of the texts he could not say that he authored. He pointed out that the phone was not always in his control and that his wife and the boyfriend of the complainant, who was the father of their child, had use of the phone.

[12] There were three witnesses. The complainant, the investigating police officer and the Defendant.

Analysis

[13] It seems strange that if the complainant kept evidence of sexual intercourse that she did not tell the police about doing so. She can only say that it went missing.

[14] There is reference to the complainant having the unfortunate experience of postpartum depression after the birth of the child of her and her boyfriend. She used medication to assist with this medical condition. This appears to have existed around the time of the allegations.

[15] I have a reasonable doubt that the events occurred because of inconsistencies in the evidence of the complainant whereby she resorted to not remembering events when she appeared to be cornered in cross-examination. Although one might expect that virtually every witness will not have a 100% memory of events, my attention was drawn particularly to the pattern of the complainant not remembering events. As duty counsel, Ms. Abraham, conducted the cross-examination, the complainant took to a common form of answer whereby she did not recall, did not remember and appeared to be avoiding answering questions.

[16] Although the Defendant testified and also did not remember events, his explanations were more consistent with a person not recalling some events but at the same time having reasonable explanations for his answers.

[17] The complainant liked to watch a television show called The Bachelorette. She would like to get home from driving lessons so that she could watch her show. If these events occurred during these driving lessons, one might expect that the victim of the activity would be upset, would complain to close friends or to a relative; however, she did not. Her explanation is that the Defendant cautioned her not to tell anyone because if he went down then she would also. The other side of the coin about talking of these allegations is found in the text messages that have been filed in Exhibit 2 where the Defendant accused her of wanting him out of the picture, but she disputed this saying that if that were so she would have done something long ago. The Defendant denied that he ever told the complainant not to talk with anyone about sexual activities between them.

[18] If the court were to find that the Defendant touched the vaginal area of the complainant or inserted his finger into her vagina or engaged in an act of complete sexual intercourse without the consent of the other person, sexual assault would be established. There is no suggestion of a consensual engagement of any sexual activity by the complainant, and the Defendant denies that such activity occurred.

[19] I note that the Defendant represented himself at this trial. He had the assistance of Ms. Abraham from Legal Aid Ontario to cross-examine the complainant. His evidence and answers in cross-examination were given in a direct manner without appearing to evade providing answers. If no sexual activity occurred, no case is established. The evidence of the Defendant directly denies the accusations so that if believed I would conclude that they never occurred. When making such observations, I am not choosing one side or the other but rather am considering all the evidence from all three witnesses together with the exhibits filed. This trial does not involve stage 2 of the W.(D.), (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) analysis because I believe the evidence of the Defendant. I also rely on R. v. B.D., ONCA 2011, from the Ontario Court of Appeal.

[20] The bottom line is that I find that the events did not occur.

Conclusion

[21] The 2 counts on the indictment are dismissed.

Justice B. Glass

Released: January 9, 2015