R. v. D.H., 2015 ONSC 664

SUPERIOR COURT OF JUSTICE

CITATION: R. v. D.H., 2015 ONSC 664

COURT FILE NO.: CR-14-880

DATE: 20150129

ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Ms M. Martin, for the Crown

• and -

D.H.

Mr. D. O’Connor, for the Defendant

Defendant

HEARD: January 26, 27, 28 and 29, 2015

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

1D.H. is accused of being an abusive partner. He allegedly assaulted, raped and unlawfully confined his former girlfriend, E.C.

2This trial took place in Walkerton, without a jury, on January 26, 27, 28 and 29, 2015. January 26 and part of the 27^th were devoted to the hearing of a severance application brought by the Defence, which application was granted. Evidence was called on the 27^th and 28^th, with final submissions by counsel delivered on January 29.

3Just one witness testified at trial – the complainant, E.C. The Defence elected to call no evidence.

4A publication ban is in place regarding the name and identity of the complainant.

II. The Charges, Their Essential Elements and the Basic Legal Principles

5There are a total of five (5) charges against the accused that are the subject of this trial.

Assault

6D.H. is charged with three counts of assault against E.C. The formal charges read:

Count 1: That between the 1^st day of November, 2013 and the 30^th day of November, 2013 at the Town of Hanover in the said region, D.H. did commit an assault on E.C. contrary to section 266 of the Criminal Code of Canada.

Count 3: That between the 1^st day of April, 2013 and the 30^th day of April, 2013 at the Town of Hanover or elsewhere in the Province of Ontario, D.H. did commit an assault on E.C. contrary to section 266 of the Criminal Code of Canada.

Count 4: That between the 1^st day of May, 2013 and the 31^st day of May, 2013 at the Town of Hanover in the said region, D.H. did commit an assault on E.C. contrary to section 266 of the Criminal Code of Canada.

7Where there is an issue as to whether the events alleged to form the bases of the crimes charged ever took place, it must be remembered that it is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that D.H. was the person involved in them. It is not for D.H. to prove that these events never happened. If I have a reasonable doubt whether the events alleged ever took place, I must find D.H. not guilty.

8For me to find D.H. guilty of assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that D.H. intentionally applied force to E.C.;

ii. that E.C. did not consent to the force that D.H. intentionally applied; and

iii. that D.H. knew that E.C. did not consent to the force that D.H. intentionally applied.

9If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.H. not guilty of assault.

10If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.H. guilty of assault.

Sexual Assault

11D.H. is charged with one count of sexual assault against E.C. The formal charge reads:

Count 2: That between the 1^st day of November, 2013 and the 30^th day of November, 2013 at the Town of Hanover in the said region, D.H. did commit a sexual assault on E.C. contrary to section 271 of the Criminal Code of Canada.

12The same instruction outlined above with regard to whether the events alleged to form the basis of the crime charged ever in fact took place applies equally to this sexual assault charge.

13For me to find D.H. guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:

i. that D.H. intentionally applied force to E.C.;

ii. that E.C. did not consent to the force that D.H. applied;

iii. that D.H. knew that E.C. did not consent to the force that D.H. intentionally applied; and

iv. that the force that D.H. intentionally applied took place in circumstances of a sexual nature.

14If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.H. not guilty of sexual assault.

15If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.H. guilty of sexual assault.

Unlawful Confinement

16D.H. is charged with unlawful confinement. The formal charge reads:

Count 5: That between the 1^st day of November, 2013 and the 31^st day of December, 2013 at the Town of Hanover in the said region, D.H. did without lawful authority confine E.C. contrary to section 279(2) of the Criminal Code of Canada.

17The same instruction outlined above with regard to whether the events alleged to form the basis of the crime charged ever in fact took place applies equally to the unlawful confinement charge.

18For me to find D.H. guilty of unlawful confinement, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that D.H. intentionally confined E.C.; and

ii. that the confinement was without lawful authority.

19To intentionally confine another person is to physically restrain that person, contrary to her wishes, thereby depriving that person of her liberty to move from one place to another. Confinement is an unlawful restriction on liberty for some period of time. It does not have to be in one particular place. D.H. must intend to restrict E.C.’s freedom to move about.

20If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.H. not guilty of unlawful confinement.

21If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find D.H. guilty of unlawful confinement.

Presumption of Innocence

22D.H. is presumed to be innocent of each and every charge that he is facing. He has no burden of proof. The burden of proof rests entirely with the Crown.

23Where there are multiple charges against an accused, as here, I must be careful to assess each charge independently. Obviously, the verdicts need not be the same across the counts.

III. The Evidence at Trial

The Evidence of the Complainant, E.C.

24Now 22 years old, E.C. was in a relationship with the accused from late 2012 until late 2013. They lived together for much of that time.

25E.C. described in her testimony at trial three incidents of alleged abuse at the hands of D.H.

26First, near the beginning of April 2013, at the apartment of D.H.’s brother in Owen Sound, in the absence of anyone else, the accused allegedly became angry at something and struck E.C. one time. His hand hit her cheek. She was not injured.

27That first alleged incident is related to count 3, as amended - simple or common assault.

28Second, in May 2013, at the residence of D.H.’s mother in Hanover, in the absence of anyone else, the accused allegedly grabbed E.C.’s right ankle and twisted it. He thought that she was cheating on him. She cried and had a sore ankle for a couple of days but did not receive any medical attention.

29That second alleged incident is related to count 4 - simple or common assault.

30Third, in late November 2013, at their apartment in Hanover, in the absence of anyone else, they argued. She tried to leave the apartment. He allegedly grabbed her and pulled her back in to the dwelling. He told her to go in to the bedroom, which she did. It is alleged that he told her to take her clothes off so that she could not leave the apartment, which she did. She was naked. He allegedly broke her laptop computer. They were yelling at each other. He allegedly told her not to leave the bedroom. The door was open. He allegedly pushed her on to the bed several times. She eventually was permitted to go to the bathroom, where she locked herself in. She let him in after he banged on the door and threatened to break it down. He allegedly pushed her twice – one time she hit her head on the bathtub, and the second time she hit her head on the sink (she later suffered a headache and shoulder pain). She went back to the bedroom and sat on the bed. It is alleged that he came in to the bedroom, took off his pants, pushed her back on to the bed, climbed on top of her and put her hand on his bare penis. She rubbed his penis because he told her to. She was scarred. It is alleged that he was trying to pry her legs open while she was trying to keep them together and push him off. He allegedly inserted his penis in to her vagina and had intercourse with her for a few minutes. He did not ejaculate. She was yelling at him to stop and crying.

31After the alleged assaultive incident ended, D.H. tried to get E.C. to kill herself by overdosing on her insulin (she is diabetic), something that she had attempted before.

32E.C. testified that she did not consent to any sexual contact with the accused. In fact, he had asked her twice if she wanted to have sex, and she replied in the negative.

33E.C. testified that, throughout the incident, she felt that she could not leave the bedroom (except for the trip to the bathroom) and could not leave the apartment.

34That third alleged incident is related to counts 1, 2 and 5 - simple or common assault, sexual assault and unlawful confinement.

IV. The Positions of the Crown and the Defence

35Both counsel delivered cogent, very brief closing submissions which spanned about thirty minutes total.

36Succinctly put, the Crown argues that I should accept the evidence of E.C. about what she says happened in April, May and November 2013 and, consequently, find the accused guilty of all counts. Ms. Martin emphasizes that the complainant was largely consistent and unshaken on the most material points, namely, the events that underlie the offences before the Court.

37In brief, the Defence disagrees that E.C. was a credible or reliable witness. To ground findings of guilt on her evidence alone would be dangerous.

V. Analysis

38Of course, I may accept all, some or none of E.C.’s evidence.

39I am concerned about the credibility and reliability of E.C.’s evidence.

40No witness is expected to be perfect, however, the sheer number and nature of the inconsistencies in the evidence of E.C. make me hesitant to place too much weight on her allegations.

41The following are some of the difficulties that are apparent in the testimony of the complainant.

42First, in direct examination at trial, E.C. stated that she never saw the accused in person in January 2014. In cross-examination, she testified that she spent considerable time in the company of D.H. on January 17 and 18, 2014. Her evidence was inconsistent on that point. And the issue is material to the complainant’s credibility because it appears that E.C. was attempting to downplay the continued interaction between her and the accused well after the alleged incident at the end of November 2013.

43Second, until the Defence put to E.C. a Facebook communication between her and D.H. at the end of January 2014, the complainant never mentioned in her trial testimony that she had some physical contact with the accused, such as kissing, on January 17, 2014. Further, she had not mentioned previously in her trial testimony that she and D.H. had gone to other places on January 17, such as the mall. Her evidence was inconsistent by omission on those points. And those matters are material to the complainant’s credibility for the same reason indicated above.

44Third, E.C.’s evidence was inconsistent on where she met D.H. on January 17, 2014. She first said that she picked him up at his mother’s place in Hanover, while she later stated that she met him at the Owen Sound Courthouse.

45Fourth, the complainant’s evidence was inconsistent on whether she signed any papers on January 17, 2014. She first said that she had not, while she later stated that she signed an Affidavit (Exhibit 3). That issue is material to the complainant’s credibility in that one would think that one would remember signing a legal document approximately one year ago.

46Fifth, it is clear from the content of Exhibit 3 that the Affidavit sworn to by E.C. was designed to help the accused in his family litigation against the mother of his children. I find that to be odd behaviour on the part of E.C.

47Courts must be very careful about stereotyping what victims of domestic abuse should or should not do afterwards. There is no recipe for how a victim of domestic abuse will react. That is why, for example, I place no weight on the fact that E.C. did not disclose the alleged abuse right away. But, in this case, the separation had already taken place. E.C. was living hours away. The fact that she would assist D.H. in such a blatant and formal way is surprising.

48Sixth, until well in to her cross-examination at trial, E.C. never mentioned that she had spent the entire evening on January 17, 2014 with the accused, doing drugs. Her evidence was inconsistent by omission on that point. And that issue is material to the credibility of the complainant in that, again, there appears to be an attempt to downplay the continued interaction between the parties well after the end of November 2013.

49Seventh, E.C.’s evidence at trial as to when the physical abuse started (in April 2013) is inconsistent with what she told the police officer in her statement in early February 2014 (June or July 2013). That issue is relevant because two of the charges pre-date June of 2013.

50Eighth, E.C.’s evidence at trial as to what physical abuse she had sustained at the hands of the accused (summarized above) is inconsistent with the fact that she told the police officer that D.H. had punched her in the face. Obviously, it is highly relevant what assaultive acts are being alleged against the accused.

51Ninth, I find it odd, somewhat misleading and relevant to the credibility of the complainant that E.C. told the police officer that she had “run in to” the accused on January 17, 2014. It was clearly not an accidental or unplanned meeting.

52Tenth, E.C.’s evidence at trial as to how she injured her shoulder (by being pushed in to the bathtub) is inconsistent with what she told the police officer (from being thrown on to the floor). Again, what assaultive acts are being alleged against the accused and how E.C. was injured as a result of those acts are highly relevant matters.

53Eleventh, I have concerns about the general reliability of E.C.’s evidence because of her drug issues and consequential memory problems and paranoia that she admitted to having experienced, at times, in 2013.

54Twelfth and finally, I find it strange that, throughout February 2014, E.C. continued to have regular communication with the accused and posted photos of herself for him to see. She also stated in writing that whatever happened between them was not his fault (Exhibit 5b). All of this communication was without the knowledge of the police, even though the officer had specifically asked E.C., on February 3, 2014, to advise him of any further contact from D.H.

55In isolation, any one of the above difficulties would likely not be an impediment to placing reliance on the evidence of E.C. Or even more than one of them. Even a few of them. But, cumulatively, these shortcomings, some more material than others, coupled with the lack of any corroborative evidence, cause me to be left with a reasonable doubt as to whether D.H. ever assaulted, sexually assaulted, raped or unlawfully confined the complainant.

56Of course, corroboration is not required, however, the lack of corroborative evidence is always a factor that the trier can take in to account in assessing whether there is a reasonable doubt.

57None of this is meant to belittle or criticize E.C. I am required to explain why I do not necessarily accept her account of what happened during these three alleged incidents in April, May and November 2013.

58I am not of the opinion that E.C. is a vindictive or evil person. I think that her allegations are unreliable, however. They are made even more suspect by the fact that she was under pressure from M.F., the former partner of the accused and mother of his children, to spill some dirt about D.H. The drugs, suicidal tendencies and fragile mental state also do not assist the dependability of E.C.’s evidence.

59There just is not enough meat on the prosecution’s bone.

VI. Conclusion

60I think that E.C. is a young lady who has been through a lot in her lifetime. I hope that she is in a better state of mind now than she was in 2013. And I certainly hope that she has realized the value of her life going forward.

61Simply put, I am not sure what happened between D.H. and E.C. That is the essence of reasonable doubt.

62The verdict is not guilty on each of the five (5) charges facing D.H. The accused is acquitted on all counts on the Indictment.

63For E.C., she seems to be in a better place now. I am confident that will continue.

Conlan J.