ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-33

DATE: 2015-11-20

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. P. Keen, for the Crown

• and -

Herbert Martin Roy Smith

Ms. K. Seeley, for the Defendant

Accused

HEARD: August 31, September 1 and September 2, 2015 at Kenora, Ontario

Mr. Justice J.S. Fregeau

Reasons on Judgment

INFORMATION CONTAINED HEREIN IS PROHIBITED

FROM PBULICATION PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE BY ORDER OF JUSTICE J. FREGEAU SUPERIOR COURT OF JUSTICE DATED AUGUST 31, 2015

Introduction

[1] The defendant stands charged on a three count indictment as follows:

Count 1: That he did, on or about the 8th day of May, 2013 in the City of Dryden in the said region, in committing a sexual assault on S.L., endanger her life, thereby committing an aggravated sexual assault, contrary to Section 273(1) of the Criminal Code of Canada.

Count 2: That he did, on or about the 8th day of May, 2013 in the City of Dryden in the said region, in committing a sexual assault on S.L., cause bodily harm to her, thereby committing sexual assault causing bodily harm, contrary to Section 272(1)(c) of the Criminal Code of Canada.

Count 3: That he did, on or about the 8th day of May, 2013 in the City of Dryden in the said region, with intent to enable or assist himself to commit the indictable offence of sexual assault, attempt to choke, suffocate or strangle S.L., contrary to Section 246(a) of the Criminal Code of Canada.

[2] The case for the Crown consisted of the evidence of the following witnesses:

1. Detective/Sgt A. Tkachyk (“D/C Tkachyk”) of the Dryden Police Service, the investigating officer;
2. S.L., the complainant;
3. R.M.;
4. A.C.;
5. C.L.;
6. Tracey Mihalus, registered nurse;
7. Dr. B. Cook, emergency room physician;
8. Dr. C. Eisner, expert witness;
9. J.M.;
10. Detective/Constable P. Howarth (“D/C Howarth) of the Dryden Police Service.

[3] Ms. R.M., Mr. A.C., Mr. C.L., Mr. J.M. and D/C Howard were peripheral witnesses. My summary of their evidence will be limited.

[4] The defendant testified on his own behalf. The defence also called Mr. L. Shabaqua to give evidence.

[5] Prior to the Crown calling evidence, counsel for the defendant conceded that the identity of the defendant was not in issue nor was the fact that the defendant and complainant had engaged in sexual intercourse on or about May 8, 2013.

The Case for the Crown

[6] D/C Tkachyk was working the day shift on May 8, 2013 when she was called to the counter of the Dryden Police Service at approximately 2:15 p.m.

[7] The investigating officer met with S.L. (the “complainant”), whom the officer described as crying and visibly upset. The officer testified that she immediately noticed that the complainant’s “eyes were bleeding or they looked like they were bleeding.” The officer testified that she identified this condition as “severe petechial hemorrhaging” which she had seen before in sudden death cases. The officer commented that she had never seen petechial hemorrhaging that severe before.

[8] D/C Tkachyk interviewed the complainant who made an allegation of sexual assault against “Herb”, the occupant of an upstairs apartment located at 146 3rd St. in Dryden, Ontario. During the interview, the officer noticed reddish bruising on the face and neck of the complainant and what the officer described as two “very distinct (purple) straight lines across her throat.” D/C Tkachyk also described what she saw as “ligature marks to the front of her throat.”

[9] The investigating officer had Cst. Marcino take photographs of the complainant. A binder containing 18 photographs of the complainant was filed as Exhibit #1.

[10] The complainant was then taken to the local hospital where she was examined and a sexual assault kit completed. During the examination the complainant advised that she had left her underwear at the defendant’s residence.

[11] D/C Tkachyk testified that the defendant’s residence was searched later that day. At 9:49 p.m. on May 8, 2013, D/C Tkachyk located a pair of grey underwear, similar to that described by the complainant, in the defendant’s apartment at the bottom of a blue Rubbermaid tub filled with clothing. The underwear was taken to the complainant’s residence where she identified it as hers. The underwear was produced and marked as Exhibit #2.

[12] On cross examination, D/C Tkachyk acknowledged that she did not observe if the other clothing in the Rubbermaid tub was clean or dirty.

[13] In response to a request from the bench to clarify the chronology, D/C Tkachyk testified that she secured an arrest warrant for the defendant at 4:36 p.m. on May 8, 2013 and that at 5:00 p.m. that day she asked two other officers to arrest him, which was done at 5:05 p.m. that day. She began her search of the residence at 9:37 p.m. that evening.

[14] S.L. was born on […], 1991 and was 21 years old in May 2013. The complainant testified that she was living in Dryden with R.M. in May 2013. On May 7, 2013 the complainant travelled to K.B., part of Lac Seul First Nation, to pick up her Ontario Works cheque. She returned to Dryden, cashed her cheque and went to the liquor store and purchased a 26 ounce bottle of vodka. The complainant testified that she returned to Ms. R.M.’s home and consumed the bottle of vodka with C.L., A.C. and Ms. R.M..

[15] A second 26 ounce bottle of vodka was purchased from a bootlegger. The complainant testified that she, Mr. C.L. and Mr. A.C. then went to the defendant’s residence at Mr. C.L.’s suggestion. The complainant testified that she knew the complainant, having met him through Mr. C.L. in January 2013.

[16] According to the complainant, the group arrived at the defendant’s residence at approximately 8:00 p.m. All of them, including the defendant then shared in the consumption of the second 26 ounce bottle of vodka. The group went out again and purchased another 26 ounce bottle of vodka together with five “tall boys” cans of beer from the same bootlegger.

[17] The complainant testified that they all returned to the defendant’s residence about 10:00 p.m. and continued to drink. The complainant testified that she eventually passed out or fell asleep while fully clothed. She was unable to recall if anyone was still in the apartment at this time. Her next recollection is waking up in a bed, on her back and seeing the defendant trying to remove her pants. She saw no one else at this time.

[18] The complainant testified that she tried to push the defendant off of her while telling him to stop. The defendant, according to the complainant, continued to try to remove her pants. The complainant testified that the defendant then “managed to turn me around” with his hands and removed her pants and underwear. While she was on her stomach on the bed, the complainant testified that the defendant held her wrists tightly behind her back.

[19] The complainant testified that she next recalled the defendant choking her, using some kind of cloth around her neck. She attempted to remove the cloth from around her neck. While being choked by the defendant, the complainant testified that the defendant had vaginal intercourse with her. According to the defendant, she was thinking “I was going to die” and could not breathe. She described her vision as “seemed just like stars…starry”. The complainant said that then “it just went all black.”

[20] The complainant testified that she next remembered waking up on the bed or bedroom floor with only her shirt on. The defendant was present but nothing was said by either of them. She quickly found her pants, put them on and left. The complainant walked back to Ms. R.M.’s residence and went to sleep. When she awoke, she noticed the redness of her face. She testified that she went to the Native Friendship Centre from where she was then taken to the police station.

[21] The complainant identified Exhibit #2 as her underwear.

[22] On cross examination, the complainant acknowledged that she had been drinking heavily in the winter/spring of 2013. The complainant acknowledged that she had been drinking significant amounts of alcohol on May 7, 2013, both before and after arriving at the defendant’s residence.

[23] On cross examination, the complainant denied that she had agreed to stay the night with the defendant or that she had willingly laid down on his bed. The complainant readily acknowledged that she was unsure of exactly when she left the defendant’s residence, how long it took her to get to Ms. R.M.’s residence and when she got to Ms. R.M.’s residence.

[24] On cross examination, the complainant denied that she had engaged in consensual sex with Mr. Smith or that she became upset because he did not use a condom. When asked if the defendant had given her a pair of underwear when she was about to leave his apartment the complainant responded that she “didn’t have any on when I went home.”

[25] R.M. testified that she lived in Dryden in May of 2013 with her son J.M., her daughter Christina, C.L. and S.L.. Ms. R.M. testified that she did not notice any injuries on Ms. S.L. on May 7, 2013. Ms. R.M. recalled joining the group at the defendant’s on the evening of May 7, 2013 for a drinking party. Ms. R.M. went home early in the evening.

[26] When Ms. R.M. awoke early the next morning, she found the complainant sitting on the couch crying. According to Ms. R.M., the complainant had “bloodshot” eyes, red blemishes on her face and bruising “around” her neck. She also testified that she thought she had seen a bruise on the complainant’s left arm, near her bicep.

[27] A.C. is a 35 year old member of the Lac Seul First Nation. He has known S.L. most of his life. According to Mr. A.C., he met the complainant when she travelled to K.B. on May 7, 2013. He accompanied her back to Dryden and joined her, Ms. R.M. and C.L. at Ms. R.M.’s residence.

[28] Mr. A.C. recalled drinking at Ms. R.M.’s and then walking to the defendant’s apartment and drinking more there. He estimated that they arrived at the defendant’s residence at about 8:00 or 9:00 p.m. and that he stayed for a couple of hours. He was not able to estimate how much alcohol anyone consumed.

[29] When asked about the demeanour of the complainant and the defendant, he responded “alright”. He testified that he did not observe any sexual behaviour or hear any sexual discussion between the two. Mr. A.C. testified that he left the defendant’s residence because he wanted to pass out.

[30] C.L. is a 31 year old Dryden resident. He has known the defendant for approximately four years. He testified that he was at the defendant’s residence on the evening of May 7, 2013 with the complainant, Mr. A.C. and Ms. R.M..

[31] Mr. C.L. described himself as “pretty hammered” during the night of May 7/8, 2013 with no clear recall of when he left Mr. Smith’s residence. His best estimate was that he had left about 2:00 a.m. He did recall that when he left the apartment, the complainant, the defendant and Mr. A.C. were still present.

[32] Mr. C.L. returned to Ms. R.M.’s residence sometime during the early morning hours on May 8, 2013. He observed Ms. S.L. sleeping on the couch. He did not notice any visible injuries on her. Mr. C.L. was advised by J.M. that “something had happened to S.L.”.

[33] To rebut recent fabrication as suggested by defence counsel’s cross examination of the complainant, Crown counsel was permitted to ask this witness if S.L. told him what had happened to her. Mr. C.L. testified that the complainant told her that “Herb” had raped her and “choked her out” with a towel around her neck.

[34] On cross examination, Mr. C.L. acknowledged that he had been drinking heavily throughout 2013 and that he had little independent recall of exact times on May 7/8, 2013 due to his alcohol consumption.

[35] Tracey Lynn Mihalus is a Registered Nurse at the Dryden Regional Health Centre. She has received training in the collection of evidence, preservation of evidence and document preparation in regard to victims of sexual assault and domestic violence. Ms. Mihalus completed the sexual assault kit on the complainant on May 8, 2013 and provided the kit to Officer Kaus of the Dryden Police Service. As part of this procedure, at 4:00 p.m. on May 8, 2013, Ms. Mihalus took a sample of blood from the complainant for alcohol analysis.

[36] Ms. Mihalus then performed a physical examination of the complainant. She observed Ms. S.L.’s eyes to be red and bloodshot with “pools of blood” in both eyes and tenderness in the right eye. The nurse further observed petechia on the complainant’s face, bruising on her cheeks and two ligature lines on her neck. She testified that she did examine the back of the complainant’s neck and did not observe ligature marks on the back of her neck. Ms. Mihalus also observed bruising to the left arm, right arm, left wrist and right wrist of the complainant.

[37] Dr. B. Cook is a medical doctor who was working in the emergency department of the Dryden Regional Health Centre on May 8, 2013. He examined Ms. S.L. after Ms. Mihalus had done so. Dr. Cook observed “obvious” bleeding to both eyes, the right worse than the left, bruising to the neck and tenderness to the left wrist. In commenting on his observations as to the general appearance of the complainant’s face, Dr. Cook stated that the complainant had petechial or “ruptured blood vessels in the skin of her face as well as to the neck”. Dr. Cook disagreed with Ms. Mihalus’ description of the complainant’s eyes as bloodshot, referring to the condition of her eyes as severe subconjunctival hemorrhages.

[38] On cross examination, Dr. Cook testified that he did not feel that the complainant was intoxicated.

[39] Dr. C. Eisner is a medical doctor who testified as a fact witness on how strangulation can cause death and secondary injuries such as subconjunctival hemorrhages, ligature bruising and facial petechia. Dr. Eisner was also qualified as an expert witness allowed to provide opinion evidence on:

1. Whether strangulation endangered the life of the complainant in this case:
2. What if any conclusions can be drawn from the severity of visibly observable injuries with respect to the severity of the strangulation; and,
3. Whether the subconjunctival hemorrhages, facial petechia and ligature marks were caused by strangulation in this case.

[40] For the purpose of preparing his report and in preparation for giving evidence in this trial, Dr. Eisner reviewed the Dryden Police Services report, all hospital notes including E.R. notes, Dr. Cook’s notes and those of the sexual assault nurses. He also reviewed photographs of S.L. taken by the sexual assault nurse. Dr. Eisner was given Exhibit #1, the photo book, during his direct examination.

[41] Dr. Eisner described strangulation as the external compression of the neck such that the blood supply to and from the brain is cut off. If the blood flow is restricted externally in this fashion and both carotid arteries obstructed, unconsciousness can occur within four to five seconds and death within five minutes.

[42] Dr. Eisner testified that strangulation can cause panic in a victim because of an inability to breathe and a lack of blood and oxygen to the brain. Physically, strangulation can cause facial petechia, subconjunctival hemorrhaging in the eyes and bruising to the neck. Dr. Eisner also testified that not all strangulations result in visible physical injuries.

[43] When asked for his opinion as to what caused the facial petechia, the ligature marks and the subconjunctival hemorrhaging observed on the complainant, Dr. Eisner testified that “there’s really only one thing that can cause the ligature marks…and that is compression to those areas with some object…It does not look as though it could be manual compression with hands. The marks are too sharply defined and also there is no visible bruising from thumbs or fingers…”

[44] In commenting on his observations of the total injuries presented by S.L., Dr. Eisner was of the opinion that they were “almost certainly caused by strangulation.” Dr. Eisner testified that “the constellation of the three (facial petechia, subconjunctival hemorrhaging and ligature marks) mean that the person (the complainant) was strangled quite severely.”

[45] Dr. Eisner further testified that, in his experience of having dealt with dozens of victims who have survived strangulation, he had never before seen a living victim with such severe symptoms of strangulation.

[46] Dr. Eisner testified that “it is easy to die from strangulation” and that in his opinion, this strangulation endangered the life of S.L..

[47] On cross examination, Dr. Eisner agreed that some of the injuries seen on the complainant would also be present if the strangulation were self-inflicted. Dr. Eisner went on to testify that the bruising around the eyes and on the limbs made it difficult to accept that this strangulation was self-inflicted.

[48] J.M. is 26 years old and resided with his mother in May 2013. Mr. J.M. had remained at home the night of May 7, 2013 and went to bed between 11:00 p.m. and midnight. According to Mr. J.M., he woke up sometime between 4:00 and 6:00 a.m. to use the washroom. While using the downstairs washroom, he heard knocking at the door. He went to the door, saw the complainant through the window and let her into the house.

[49] According to Mr. J.M., he noticed that both sides of the complainant’s face were “puffy”. Later that day he observed “a consistent bruise going around her neck.”

[50] On cross examination, Mr. J.M. testified that he did not notice bruising or red marks on the neck of the complainant that morning when he let her into the house.

[51] Detective Constable P. Howarth is a member of the Dryden Police Services and is trained as a Scene of Crime Officer. He assisted in executing the search warrant at the defendant’s residence on May 8, 2013. D/C Howarth testified that a pair of grey female underwear was located by D/C Tkachyk in a blue bin in the bedroom of the defendant’s apartment. According to D/C Howarth the blue bin contained other clothing, some folded and “apparently clean, and the left side being dirty or unkempt.”

[52] Tabs 5, 6, 7 and 8 of Exhibit #3 were filed on consent for the truth of the contents of these documents.

[53] Exhibit #3, Tab 5 contains two letters from Dr. Brian Lockyer, Optometrist. The first, dated May 9, 2013 is addressed to Dr. Cook, the emergency room physician who saw the complainant on May 8, 2013. Dr. Cook had referred the complainant to the optometrist due to the condition of her eyes on May 8, 2013.

[54] In the May 9, 3013 letter to Dr. Cook, Dr. Lockyer confirmed that the complainant had “severe hemorrhages of the conjunctiva and around the lid region. Dr. Lockyer’s July 17, 2013 letter is addressed to D/C Tkachyk. A copy of the May 9, 2013 letter was enclosed. Dr. Lockyer advised that the complainant’s hemorrhaging was still present but resolving “fairly well”.

[55] Tab 8 of Exhibit #3 is a toxicology report from the Centre of Forensic Science dated June 13, 2013. This document confirms that the blood alcohol level in the blood drawn by Ms. Mihalus from Ms. S.L. on May 8, 2013 at 4:00 p.m. was 124 mg of alcohol in 100 ml of blood.

The Defendant’s Case

[56] Herbert Smith was 47 years old in May 2013. He resided at Apartment B, 146 3rd St. in Dryden, the upstairs apartment of a duplex. His sister and her roommate, Leo Shabaqua, reside downstairs.

[57] The defendant testified that he first met the complainant in January or February 2013 while with Ms. R.M. and Mr. C.L.. According to the defendant, the complainant had been to his apartment 3 or 4 times prior to May 7, 2013.

[58] The defendant testified that he was having supper with his sister and Mr. Shabaqua in the downstairs apartment at about 5:00 or 5:30 p.m. on May 7, 2013 when Mr. C.L. knocked on the door. According to the defendant, Mr. C.L. was with the complainant and another person whom he did not know. Mr. C.L. indicated that the group wanted to go up to the defendant’s apartment and drink.

[59] The defendant testified that he agreed, finished his supper and went up to his apartment with this group. According to the defendant, he could tell that the complainant, Mr. C.L. and the third party whom he now described as “Alex” “had been drinking”, but that they were “not totally drunk at that time.”

[60] The group sat and listened to music while consuming the bottle of vodka they had brought with them. He, the complainant, Mr. C.L. and Mr. A.C. finished that bottle. The group then left about 8:30 p.m. to walk to a bootlegger’s house to purchase more alcohol. They purchased another 26 ounce bottle of vodka and five or six cans of beer and returned to his apartment. The defendant estimated that he consumed approximately four to six drinks in total from the two bottles of vodka, each containing about “a shot and a half” of vodka.

[61] The defendant testified that Mr. C.L. left his apartment between 11:30 and 11:45 p.m. and did not return, leaving the defendant, the complainant and Mr. A.C. in the apartment. The three listened to music for about one hour and then, according to the defendant, he took his dog for a walk for about 10 minutes.

[62] The defendant testified that Mr. A.C. and the complainant were on the couch when he left to walk his dog and that Mr. A.C. was “close to passing out”. When he returned, Mr. A.C. was passed out, sitting upright on the couch. The defendant testified that the complainant was sitting beside Mr. A.C. on the couch.

[63] According to the defendant, because Mr. A.C. was now asleep, he asked the complainant if they were going to stay the night. He testified that the complainant replied, “yeah, I guess” or words to that affect. He then suggested that she sleep with him.

[64] The defendant testified that he then went to use the washroom and that when he came out of the washroom the complainant was laying on his bed wearing just a top. He went onto the bed and asked the complainant to move over after which they engaged in “small talk”, then “foreplay” for about 10 minutes, followed by sexual intercourse.

[65] The defendant testified that he was on top of the complainant during the sexual intercourse which lasted about five minutes. According to the defendant, the complainant did not tell him to stop or physically resist, but for the fact that she did not want him to kiss her. The defendant also testified that he and the complainant “didn’t want others to know we were seeing each other in that way.”

[66] The defendant testified that he did not hold the complainant’s arms or wrists behind her back. He also denied that the complainant was ever on her stomach during the sexual intercourse or that he had placed anything around her neck.

[67] According to the defendant, after the sexual intercourse was completed, the complainant asked if “her brother” (Mr. A.C.) was “still out there.” The defendant testified that he got up to look, saw that Mr. A.C. had left, checked on his dog in the kitchen, returned to the bedroom and told the complainant that Mr. A.C. had left.

[68] The defendant testified that the complainant then got up and started looking for her clothes, saying that she had to go and look for Mr. A.C.. According to the defendant, the complainant was able to find her pants but that she asked him for her underwear. According to the defendant, he gave her a pair of her underwear that she had left in his apartment on one of the previous occasions when she had been to his apartment and was “with me in an intimate way.”

[69] The defendant testified that he then asked the complainant “for a couple of cigarettes”, which she gave him before she left his apartment at between 1:00 and 1:30 a.m.

[70] The defendant testified that it was obvious that the complainant had been drinking when she arrived at his apartment on May 7, 2013. According to the defendant, the complainant “drank a little more” during the evening but was “walking straight, coherent and not really drunk when she left.”

[71] On cross examination, the defendant confirmed his earlier testimony that the complainant was not significantly intoxicated when she left his apartment. While acknowledging that the complainant had testified that she had consumed, in total, approximately the equivalent of three-quarters of a 26 ounce bottle of vodka, which evidence he agreed with, the defendant testified that she was walking and talking “OK” and that he had no concern as to her ability to consent to sexual activity. Putting his own level of intoxication at a “6 or 7” on a 1 to 10 scale, he agreed with the suggestion that the complainant’s would be less. The defendant accepted the suggestion that the complainant was about 5’3” to 5’4” tall and weighed approximately 115 lbs.

[72] The defendant further confirmed that he was aware that the complainant did not want her boyfriend to know that she was seeing him and, because he was significantly older than her, that she wanted to keep the relationship secret generally.

[73] After confirming his evidence on direct examination that the complainant walked into the bedroom on her own and was lying on the bed with only her top on and buttocks exposed when he entered the bedroom, the defendant agreed that it was odd she would have left the door open with Mr. A.C. close by on the couch. The defendant was unable to recall any details of the talking and joking that he alleges occurred during the foreplay that he testified occurred prior to intercourse. He was also unable to describe what physical actions the foreplay consisted of.

[74] In responding to questions about the underwear he gave to the complainant as she was getting dressed, the defendant testified that he gave her a purple and white striped pair that she had left at his apartment on an earlier occasion.

[75] When asked why the grey pair was found at the bottom of what appeared to be a laundry basket with clean and dirty clothes in it, the defendant testified that he was cleaning up his room when the police knocked on his door during the late afternoon of May 8, 2013. He acknowledged that he used the laundry basket for dirty clothes. The defendant testified that he had been taking clothes off the floor and throwing them in the laundry basket and also putting clean, folded clothes in the basket when the police knocked on his door. He could not explain why he put clean clothes in with dirty clothes. When pressed as to why the underwear was at the bottom of the basket underneath the other clothing the defendant was unable to provide an explanation.

[76] When the photos of the complainant’s injuries as seen on May 8, 2013 were shown to the defendant, he testified that none of the injuries depicted in the photographs were present on the complainant on May 7/8, 2013 when she was at his home. He denied that he had caused any of the complainant’s injuries and was unable to provide any explanation for them.

[77] Leo Shabaqua resided with the defendant’s sister in the downstairs apartment at 146 3rd St. in Dryden on May 7, 2013. Mr. Shabaqua testified that he was at home with Ms. Smith and the defendant during the evening of May 7, 2013. According to Mr. Shabaqua, they were watching a hockey game and cooking supper. The defendant stayed until approximately 9:00 p.m. at which time he left and went upstairs alone. According to Mr. Shabaqua, the others did not come to visit until approximately 11:30 or 11:45 p.m.

[78] Mr. Shabaqua testified that he noticed Mr. C.L. passed out on the doorstep at about midnight and that he was gone in the morning. He also testified that the complainant left the defendant’s apartment at approximately 12:30 or 12:40 a.m. as he both heard her footsteps and saw her leaving through his window.

[79] On cross examination, Mr. Shabaqua testified that the defendant met with him after May 8, 2013 and told him what the defendant remembered from the night of May 7/8, 2013. Mr. Shabaqua testified that the defendant told him to take notes of what the defendant said.

[80] Mr. Shabaqua confirmed that he had told the police in a statement given just the day before his evidence that he did not know when Mr. C.L. left the defendant’s apartment but that he saw him passed out at between 3:00 and 4:00 a.m. on May 8, 2013. He had no explanation for the discrepancy between his direct examination and his police statement on this point.

[81] Mr. Shabaqua also agreed that he had told the police that he heard the complainant leave the defendant’s apartment about 1:20 a.m. May 8, 2013 but that he did not tell the police that he had seen her leave. He furthered testified that he did not know S.L..

The Positions of the Parties

The Defendant

[82] The defendant submits that credibility is central to this case. At the time when the assault allegedly occurred, only the complainant and the defendant were present, both of whom testified. In these circumstances, the defendant submits that the court must apply the analysis found in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) to the issue of credibility.

[83] The defendant submits that the complainant was not clear on when she left the defendant’s residence or when she arrived at Ms. R.M.’s. If the defendant’s evidence as to when she left his apartment and J.M.’s evidence as to when she arrived at Ms. R.M.’s is accepted, the defendant submits there is possibly three hours unaccounted for during which time the complainant was intoxicated and out on the streets of Dryden.

[84] The defendant further submits that J.M. observed little or no evidence of physical injury on the complainant’s person when he let her into the residence early on the morning of May 8, 2013. The defendant submits that the physical injuries observed by Ms. Mihalus and Dr. Cook cannot be directly linked to the defendant.

[85] The defendant suggests that evidence given by him both on direct and cross examination was clear and straightforward. After a drinking party, he and the complainant engaged in consensual sexual intercourse after which she left his apartment. He denied any suggestion that he had sexual intercourse with the complainant without her consent and denied that he caused any of her injuries.

[86] The defendant submits that it is open to this court to find reasonable doubt that the defendant caused the complainant’s injuries. The possibility exists, according to the defendant, that they were caused by a third party or self-inflicted when the complainant was walking home from the defendant’s apartment.

The Crown

[87] The Crown submits that all elements of all charges have been established beyond any reasonable doubt. It is submitted that the evidence of the complainant was consistent and unshaken on cross examination but for difficulty the complainant had remembering the exact times of various events.

[88] The Crown submits that the evidence of the complainant was corroborated multiple times in multiple ways. The documented and undisputed physical injuries are said to be consistent with the evidence of the complainant. The complainant testified that she fled the defendant’s apartment without her underwear. The underwear was found when the defendant’s apartment was searched. The sequence of events which occurred throughout the day and evening of May 7 and the early morning hours of May 8, 2013 have been corroborated by other witnesses. The sexual activity has been admitted. The complainant’s approximate level of intoxication at the relevant time has been established by her blood alcohol readings as of 4:00 p.m. on May 8, 2013.

[89] In contrast, the Crown submits that the evidence of the defendant was inconsistent both internally and externally. The Crown submits that this evidence should not be believed nor should it raise any reasonable doubt in this court’s mind. The Crown provides several reasons why the evidence of the defendant should be rejected:

1. The defendant testified that the complainant had been drinking but was not intoxicated at the end of the evening and when engaging in sex with him. The Crown submits that this is contrary to all other evidence heard by the court on this point;

2. The defendant’s explanation for the complainant’s underwear being found in his laundry bas