ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-70000019-0000
DATE: 20151103
BETWEEN:
HER MAJESTY THE QUEEN
– and –
V.O.
Alannah Grady, for the Crown
Keely Duncan, for V.O.
HEARD: October 26, 27, 28, 2015
r.f. goldstein j.
PUBLICATION BAN IN EFFECT ON THE NAME OF THE COMPLAINANT
[1] V.O. and the complainant, C.J., were in an on-and-off relationship for about a year. In 2012 V.O. was serving a sentence for a drug offence. He was released on December 10, 2012. He and C.J. re-acquainted the day after he was released.
[2] An incident of some kind occurred on December 15, 2012. C.J. says that V.O. sexually assaulted, punched, and robbed her. V.O. says that they had consensual sex, that he did not assault her, and that he did not rob her. He says they had a disagreement about drug money.
[3] For the reasons that follow, the whole of the evidence leaves me with a reasonable doubt. I don’t believe either V.O. or C.J., although the basics of V.O.’s story might reasonably be true and are more plausible. The charges are dismissed.
BACKGROUND
[4] C.J., the complainant, testified that V.O. was an ex-boyfriend. They had an on-and-off relationship that lasted about a year. The relationship ended in 2010 or 2011 when V.O. spent time in custody on pending assault charges. She sometimes lived with him. On December 15, 2012 V.O. called her and asked if she would bring over some food. She brought bread, cheese, a towel and some sheets. She said that they had not spoken recently, although in cross-examination she agreed that they had re-acquainted at a mutual friend’s apartment the Tuesday evening previous to that. She lived at 191 Sherbourne and took the items to his apartment at 251 Sherbourne. She got there at about 9 in the morning, she said. They had a nice catch-up. They had something to drink – she had Heineken and he had whiskey. She decided to leave at about 1 pm. She said that he got rougher. He raised the subject of their relationship and she indicated that there was no relationship. She tried to leave. He pulled her back into the room and ripped her shirt. He pulled her onto the futon. She testified that he then punched her in the face, choked her, and held her down. He was very aggressive and punched her on the right side of the face. He held her down with his knee. He forced her to have vaginal and oral sex. She testified that she did not know if he ejaculated or if he wore a condom. She ran out when he was finished and called 911 but hung up. She then went to her friend Bunny’s in apartment 602 in the same building. Bunny and an un-named female convinced her to call the police. She was there for about an hour. She also testified that V.O. robbed her of $400. She testified that she was using illegal drugs during the time-frame of the incident, and agreed that she consumed illegal drugs on the day it happened.
[5] In cross-examination C.J. testified that she got money from her “trustee” Manfred – and I use the word “trustee” loosely. He held on to the money for her. He also gave her money for taking care of his blind mother.
[6] V.O. also has a drug and alcohol problem. He has been in and out of rehab. He described an on-and-off-again relationship with C.J. as well. They used drugs together. He said that the relationship was back on again in the summer of 2011 but ended when he went into custody for trafficking cocaine in June 2012. He was released from jail on Monday December 10, 2012 and ran into her in an acquaintance’s apartment on the Tuesday night/Wednesday morning. He walked her home.
[7] V.O. testified further that by Wednesday he and C.J. had more or less resumed where they had left off. She came over after work and smoked $10 of crack. He did not smoke it with her as it was not enough to share. The same thing happened on Thursday but she brought some food and made him a sandwich. She bought another $10 of crack and smoked it but he did not. She then came over again on Friday after work. She had $400 and gave him $200 for food. It was not unusual that she would do that. V.O. then described a bender – a night of drinking and smoking drugs that used up all of her money and all but $50 of the $200 she gave to him. They had consensual sex. He said that part way through the evening he saw Sharon, another woman who lived in the building. Sharon is a “booster” or thief and drug addict. He traded $20 of crack for a bottle of Jack Daniels. He and C.J. then consumed most of the bottle.
[8] At one point V.O. went out to buy more crack and came back to find C.J. and Sharon there. A fight started between C.J. and Sharon. He did not know what it was about. They were kicking and scratching each other. He broke it up. They later resumed the fight in the hallway and he broke up that fight up as well.
[9] V.O. said the bender ended Saturday. C.J. wanted him to use up the last $50 to buy more crack. He refused, as he needed the money to buy food. She became upset. They argued and she left. He then went over to his aunt’s house but did not go back when he got word that the police were at his apartment. He denied forcing C.J. to have sex. He said that their sex was consensual.
ISSUES
[10] The analysis of credibility to be applied by a jury or a judge sitting alone was set out by Cory J. in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742:
[11]
28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
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.
[12] In my view, therefore, there are three issues to be determined:
(a) First, do I believe V.O.?
(b) Second, even if I do not believe V.O., does his evidence leave me with a reasonable doubt?
(c) Third, am I satisfied on the evidence that I do accept that the Crown has proven the elements of each offence beyond a reasonable doubt?
ANALYSIS
[13] It is important to make some preliminary observations about V.O. and C.J. Both have struggled with drug addiction, particularly addiction to crack cocaine. Both have had spotty records of employment. Both have criminal records. Both can be described as living on the margins of society, where stints in jail are routine and money is tight. What little money that is around is often spent on drugs or alcohol.
(a) Do I believe V.O.?
[14] I do not believe V.O. I did not find him to be a credible witness. I set out the reasons in the following paragraphs.
[15] V.O. has a lengthy criminal record. His record commences in 1993 and includes convictions for break and enter, possession of a schedule 1 substance for the purpose of trafficking, and breach of bail conditions. His record was filed as an exhibit. He was convicted of trafficking cocaine in 2012. After six months in jail he was released just a few days before these events. Although he is a convicted drug dealer, that does not necessarily make him less worthy of belief, as he was very candid about his criminal record and his background. He was also very candid that he sold drugs from apartment 711 at 251 Sherbourne. Nonetheless, it has a bearing on his credibility.
[16] I certainly do not believe V.O. when he says that C.J. gave him $200 as food money either on Friday December 14 or Saturday December 15, 2012. That is a very significant act of generosity. C.J. did not strike me as that generous with her money given her financial circumstances. Even if she was, she was struggling with a drug addiction. She needed money to buy drugs. Although she seemed to have some kind of job at a convenience store, it is not clear how much she worked and she herself testified that she worked in exchange for groceries. Her evidence about her employment was quite different at the trial from her evidence at the preliminary inquiry. I think it is much more likely that C.J. gave V.O. the $200 to buy drugs, as I will mention below.
[17] I do not believe V.O. when he says that he was not tempted to smoke crack after he got out of jail on December 10, 2015. He went back to his apartment. That was the apartment where he lived when he regularly used drugs and dealt drugs. Friends and acquaintances surrounded him. Those people are also members of the drug subculture. I just cannot accept that he was not tempted to smoke crack under those circumstances when C.J. came over to smoke it.
[18] I do not believe V.O. when he says that when he and C.J. exchanged telephone numbers right after he got out of custody because he had The Professor’s telephone number memorized but not C.J.’s. That makes no sense. The Professor lived across the hall from him. He obviously frequently crossed the hall and knocked on his door. It seems highly unlikely that he called The Professor often enough to memorize his number, although I accept that it is possible. In contrast, I find it hard to believe that he did not remember the cell phone number of C.J., who had been his girlfriend for a year. He spoke to her regularly by telephone. I accept that it is possible that he simply had C.J.’s number programmed into his phone, but then why hers and not The Professor’s? In any event, there is no evidence that any numbers were programmed into phones.
[19] I do believe V.O. when he says that C.J. came over at least twice prior to Friday night. I do not, however, believe him when he says that he was not tempted to smoke crack with her. He did say that she only bought a 10-piece, which was not enough to share. I believe that C.J. brought over a 10-piece, but the rest I do not accept. V.O. had been in jail for six months and it did not take long for him to resume is crack smoking habit. Although he wanted to get clean, he knew that he was susceptible.
[20] C.J. indicated that she might have been drinking beer at V.O.’s apartment at the time of the incident. V.O. was asked about whether he had beer. He answered, both in chief and in cross-examination, words to the effect of “how can I buy beer when I can’t afford food?” That rhetorical question is incongruous with his behaviour. He purchased crack with his food money. Furthermore, there was evidence of a can of Heineken in the apartment. Heineken was C.J.’s beer of choice.
[21] V.O. was reluctant to name at least two of his friends in court under cross-examination. He said that they are drug dealers. That may well be true, and his reasons valid, but his reluctance does nothing to enhance his credibility.
[22] It is not credible that V.O. did not contact C.J. when he learned that the police were looking for him. He says that when he learned that the police were at his apartment, he went to his aunt’s house and basically hid out. He knew that C.J. was a frequent visitor to 251 Sherbourne. He knew that C.J. had contacts in the building. On his evidence, he had just spent most of his time upon release from jail with C.J., his former girlfriend. It is simply incredible that he did not ask her if she knew why the police were looking for him – unless he knew that they were looking for him because of something that occurred between the two of them.
[23] Finally, I am sceptical that V.O.’s memory is quite as good as it appears. He recalled exact details of the food he bought when he was released from custody. He was able to remember details about his crack buys on the Friday and Saturday night with great accuracy even when he was high on crack and drunk on Jack Daniels. I simply do not believe that his memory is that good. He is just not that credible.
(b) Does V.O.’s evidence leave me with a reasonable doubt?
[24] Although I did not believe V.O., his evidence still leaves me in a state of reasonable doubt. I say this because his story, or at least elements of it, is plausible. I do accept that the following elements are true or plausible:
• I accept that C.J. came over and smoked crack in V.O.’s apartment on the Wednesday and Thursday (December 12 and 13) and Friday night prior to the incident on Saturday December 15, 2012. She agreed that she had been to 251 Sherbourne to purchase crack. She agreed that she knew drug dealers in the building. V.O.’s evidence that their relationship frequently consisted of smoking drugs together is certainly plausible given their mutual addiction.
• I also accept that it is plausible that C.J. gave V.O. $200, although, as I said, I seriously doubt it was for food. I do accept that it was likely that she gave V.O. $200 (or some other amount) to purchase drugs.
• V.O. described his crack pipe in great detail. He also described C.J.’s crack pipe in great detail. I accept that his descriptions are accurate.
• I accept it as plausible that C.J. was angry because all of her money was gone – spent on crack – and that V.O. refused to spend the last few dollars on more crack.
• V.O. testified that he and C.J. had consensual vaginal sex. He did not use a condom. He said that he did not have oral sex with her on that occasion.
[25] V.O.’s description of crack smoking, his pop-can crack pipe, and C.J.’s stem crack pipe, and a long night of crack smoking and drinking along with consensual sex is plausible. It might reasonably be true, given the background. Although I do not believe him entirely I am left with a reasonable doubt.
(c) Am I satisfied on the basis of the evidence that I do believe that V.O. is guilty beyond a reasonable doubt?
[26] Even if I were not left in a state of reasonable doubt by V.O.’s evidence, I would still not convict based on the rest of the evidence. The basic problem with this case is that neither C.J. nor V.O. was an entirely credible witness. I am not sure which version of events to believe. That, by definition, entitles V.O. to an acquittal: R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.); R. v. C.W.H. (1991), 1991 3956 (BC CA), 68 C.C.C (3d) 146 (B.C.C.A.). It is not my function to choose between competing narratives; rather, my job is to determine whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of V.O.: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 21; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 6, 8.
[27] Although I believe that something occurred between C.J. and V.O. on the morning of December 15, 2012, I am not satisfied beyond a reasonable doubt that it was an assault and a sexual assault. Although it is not necessary for me to draw this conclusion, I think it more likely than not that they had a disagreement about drugs and money rather than a disagreement about sexual matters. It seems likely to me that C.J. did indeed give V.O. $200, but for drugs rather than for food. The disagreement escalated. Although it is certainly possible that the disagreement became violent, I simply cannot find that there was an assault or a sexual assault. To go that far would require speculation.
[28] Let me explain my reasoning:
[29] C.J. has a criminal record. She has been convicted twice of assault with a weapon, twice breaching probation, failing to attend court, and possession of cocaine. She has a current outstanding impaired driving charge. Like V.O., the record does not necessarily mean that she is lying. Indeed, like V.O., she was quite forthright about her record. That said, however, the record places C.J.’s testimony in context. She has also struggled with drug addiction. Her criminal record is indicative of the type of petty crime associated with drug use, and includes a conviction for possession of drugs. As noted, she agreed in cross-examination that she had frequently attended 251 Sherbourne to buy drugs. She further agreed that she knew drug dealers in the building. I do not wish to be taken as saying that people with drug problems or living on the margins cannot be sexually assaulted. In fact, I want to emphasize that those people are actually considerably more likely to be vulnerable to assaults. Rather, as I have noted, it is part of the background to the relationship with V.O.
[30] Overall, I did not find C.J. to be a credible witness. In her testimony in chief, C.J. asserted that V.O. punched her in the face, choked, her, and forced her to perform oral sex. She did not mention punching or choking during the preliminary inquiry, although asked more than once if there had been anything other than a sexual assault. Although witnesses can forget facts, even important facts, and still be credible, the allegedly violent nature of the assault and the sexual assault makes it unlikely that she would forget about something as important as choking and forced oral sex at the preliminary inquiry. Furthermore, V.O. is an extremely large man. He is over 6’5” tall. C.J. is a much smaller woman. I simply do not accept that he could have punched her with violent force or choked her with no significant damage. The photographs, as I will deal with below, do not show major injuries. There seems to be a small cut and, perhaps, slight swelling. I also note that the sexual assault documentation form filled in by the nurse notes that there is an area of pain on C.J.’s face, but no visible injury. I appreciate that there is no expert evidence on this point. That said, it is within common human experience and no expert evidence is necessary to show that when a large man violently punches a smaller woman in the face it is likely to leave a significant mark, cut, bruising, or swelling. I am reinforced in making this finding of fact based on the totality of the evidence, including the contradictions in the evidence of C.J.
[31] C.J. testified that she went to V.O.’s residence only on Saturday morning. She steadfastly maintained that position. She told Constable Rice, however, that she had been at V.O.’s residence on Friday night. She said that V.O. had said to her “you’ve been teasing me all night”. She did not adopt this testimony at trial. I found the evidence of Constable Rice to be credible. I am satisfied that C.J. did say this to Constable Rice. The utterance is not admissible for the truth of its contents, of course, but it is admissible to show that C.J. said it. I find that it is a central problem in her evidence.
[32] I am also sceptical about the “Bunny” evidence. At trial, C.J. indicated that when she left V.O.’s apartment she called 911, hung up, and then went to see her friend “Bunny”, who lived in the building. Bunny, who is male, was with an unknown female. Bunny and the female comforted C.J., and told her to call the police. C.J. then did so. She said she spent about an hour with Bunny. She then called 911.
[33] Although C.J. told the police who first responded to the 911 call that she had spent time with Bunny, there was no mention of Bunny at the preliminary inquiry. Furthermore, the 911 calls were 5 minutes apart. I appreciate that time can be compressed, and that memories of time can change. That said, the Bunny evidence was important. The five minutes between calls does not suggest a lot of time for comforting. Furthermore, the failure to mention the Bunny evidence at the preliminary inquiry gives me pause about it.
[34] There are also some issues about the tearing of C.J.’s shirt. Certainly the clothing entered into evidence shows that her shirt was torn. Her evidence was that V.O. grabbed her by the shirt and then sexually assaulted her. At the preliminary inquiry C.J. indicated that V.O. had grabbed her by the arm. Again, this is not necessarily a significant difference and it would have been a minor point but for the more important problems in C.J.’s evidence. There may be another explanation for the ripped shirt. It may have occurred during the fight with Sharon. V.O. described that fight and said he had to break it up. I appreciate that neither V.O. nor C.J. indicated that the shirt was torn during that fight, and ultimately I cannot make a finding of fact that it occurred that way. At the end of the day I cannot completely discount the torn shirt but it is not enough to overcome the other issues with her credibility. The torn shirt ultimately supports the evidence of C.J. that he pulled her and ripped her shirt. It is the most powerful piece of evidence corroborating her version of events and undermining his.
[35] There is also the sandwich evidence. C.J. indicated that on Saturday morning she brought food over to V.O.’s apartment and made him a sandwich of cheese and bread. She said V.O. called her and asked her to bring food as he had none. V.O.’s evidence was that he made a sandwich with lettuce, tomato, and bacon. C.J. said she did not bring over lettuce, tomato, or bacon. The police photos of the apartment include a photograph of a sandwich. It clearly has lettuce and tomato, and appears to have bacon. While C.J. had no explanation for the discrepancy (and indeed, she is not required to produce one) it does not support her version of the food evidence.
[36] The DNA evidence is significant, but it cuts both ways. A vaginal swab taken from C.J. showed that male DNA was found. I have little difficulty finding that it is V.O.’s DNA, given that the odds of someone else being the donor are 1 in 300 trillion. That certainly supports C.J.’s testimony that V.O. sexually assaulted her, but V.O., of course, does not deny that sex occurred. There was DNA found under C.J.’s fingernails, and, without getting into details, some was definitely male DNA but there were at least two contributors of DNA under C.J.’s right hand fingernails. Neither donor can be identified. That implies that at some point she scratched more than one person.
[37] No male DNA was detected in the oral swab taken from C.J., although C.J. testified that V.O. forced her to perform oral sex. As noted, the oral sex evidence did not come out during the preliminary inquiry. It was only mentioned during the trial. Of course, the fact that DNA was not detected in her mouth does not mean that oral sex (forced or otherwise) did not occur, but when it is combined with the inconsistencies it becomes troubling. V.O. testified that he did not use a condom when they had vaginal sex and that they did not have oral sex on that occasion. Although I did not find V.O. to be a credible witness overall, the DNA evidence some support to his version of events. It is one reason for me being left in a state of reasonable doubt.
[38] I have also examined the forensic evidence form, the sexual assault documentation form, and the photographs. The nurse noted no visible injuries. Constable Rice noted some swelling and some dried blood around C.J.’s mouth. Constable Hodgson noted no visible injuries. The photographs show a small cut on the right side of her face. There is also some swelling below her left eye. There is also bruising on her right arm and right leg, and a bruise on her left thigh, although at no point did C.J. attribute the bruising on her legs and thighs as attributable to the assault by V.O..
[39] There certainly is evidence supporting C.J.’s version of events. The photographs, as noted, show a cut and some swelling. The photograph of the can of Heineken certainly supports her evidence that she was drinking beer on Saturday morning. Overall, however, this is not enough to overcome the other problems with her evidence. Furthermore, as I have noted, the injuries in the photos are simply not consistent with the violence and force that C.J. says was used by V.O.
[40] The male DNA found under her fingernails (although not enough was obtained to identify the donor) also lends at least some corroboration. In my view, the male DNA is not enough to overcome the other problems with her testimony; and even if it did identify V.O. it may also have been consistent with consensual sex.
[41] At the end of the day, I know both V.O. and C.J. have not told the full truth. I am not sure who to believe. As noted, a trial is not a credibility contest but the fact that I am not sure who to believe leaves me with a reasonable doubt.
DISPOSITION
[42] The charges are dismissed.
R.F. Goldstein J.
Released: November 3, 2015
COURT FILE NO.: CR-14-70000019-0000
DATE: 20151103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
V.O.
REASONS FOR JUDGMENT
R.F. Goldstein J.