R v. RS, 2015 ONSC 7497
COURT FILE NO.: CR-14-50000652
DATE: 20151203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Regina v. RS
BEFORE: E.M. Morgan J.
COUNSEL: Aaron Del Rizzo, for the Crown
Bally Hundal, for the Defendant
HEARD: November 23-27, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.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 one count of sexual assault contrary to section 271(a) of the Criminal Code and one count of unlawful confinement contrary to section 279(2)(a) of the Criminal Code. Both charges emanate from events that transpired between just after midnight and roughly 5:00 a.m. on November 16, 2013.
I. The parties
[2] On the evening of Friday, November 15, 2013, the Defendant, who is a truck driver, got off work and went to his friend Cosmo’s house for a visit. He stayed there for some time, although he does not say what he was doing there beyond sitting and chatting. He does say, however, that he does not speak English well and that Cosmo, who is now deceased, did not speak Punjabi, the Defendant’s native language. Indeed, in his testimony he made a point of saying that he does not have English-speaking friends, and that he can only manage to socialize in English on the level of “Hello, hi.”
[3] The Complainant spent that evening in a bar, where she consumed a total of five beers. Sometime at or shortly after 12:00 a.m., she left the bar and walked a short distance to her friend Alex’s house for a cigarette. She testified that Alex has been her good friend since childhood, and that she often goes there for a smoke when she has run out. Alex is Cosmo’s daughter.
[4] The Complainant and the Defendant had never met before the Complainant stopped by that night to visit her friend Alex. The Defendant testified that he thought he knew the Complainant’s brother, but both the Complainant and the Defendant are clear that the early hours of November 16, 2013 was their one and only encounter with each other.
[5] The Defendant is a 50 year-old man. He is 6 feet tall and weighs 190 lbs. The Complainant is a 23 year-old woman. She is 5 feet tall and weighs 95 lbs. He speaks poor English and she does not speak Punjabi.
[6] The Complainant testified that when she knocked on her friend’s door, Cosmo answered and invited her to step into the living room. She saw the Defendant sitting in the living room with Cosmo. She said that she detected a smell of smoke in the house, and could see them passing a pipe to each other. She testified that she thought they had been smoking crack cocaine.
[7] For his part, the Defendant denied using any illegal drugs. The Complainant indicated that she was unfamiliar with the Defendant, but was aware that Cosmo was a crack cocaine user. As she put it, “It’s just his lifestyle. It’s what he does.”
[8] In any case, it turned out that Alex was not at home. The Complainant indicated that she wanted to get some cigarettes, at which point the Defendant offered to drive her to a nearby gas station with a convenience store.
[9] She went with the Defendant and Cosmo in the Defendant’s car. The Defendant bought her a pack of cigarettes, and then the three of them returned to Cosmo’s house. The Defendant testified that the three of them went back into Cosmo’s house when they returned, but the Complainant was certain that they had not done so. She said that they left Cosmo off at his house, at which point she moved from the back seat of the car to the front passenger seat where Cosmo had been sitting.
II. The Defendant’s apartment
[10] The Complainant and the Defendant each testified as to a version of the events that followed their departure from Cosmo’s house.
[11] The large outline of their respective stories is similar – they both indicated that the Complainant went with the Defendant in his car to his apartment, that they eventually had sex during which the Defendant used a plastic bread bag as a makeshift condom, and that the Complainant stayed in the apartment until around 5:00 a.m. when she placed a 911 call and shortly thereafter the police came to the Defendant’s door.
[12] Beyond those broad parameters, however, the two narratives differ substantially. The Complainant and the Defendant relate different details and testified to altogether different perspectives on what transpired in the Defendant’s apartment.
[13] Accordingly, it is worth relating the two versions of the apartment visit in sequence.
a) The Complainant’s version
[14] The Complainant testified that she told Cosmo and the Defendant that she was going downtown to meet some friends, and that the Defendant offered to drive her there. She was insistent in stating that she did not ask the Defendant to give her a ride, but rather that the Defendant offered to drive her downtown after first making a stop at his own house for some drinks. She said that she was okay with going to his house before going downtown, but that she had no intention of staying there with him or doing anything beyond having another drink.
[15] She also testified that although the Defendant was a stranger to her, she thought it would be safe to go in the car with him since Cosmo had introduced them and had seen them off. After all, Cosmo was her good friend’s father and she had known him her entire life. She felt confident that Cosmo would not let her drive away with someone with whom she should not be alone.
[16] The Complainant testified that her unease with the Defendant began shortly after they entered his apartment. She related that as soon as they entered the apartment he took off his jacket, grabbed a bottle of Crown Royal, poured himself a drink, and then went into the bedroom drinking it. According to the Complainant, there was a laptop computer on the Defendant’s bed and when she looked she could see that there was a pornographic film playing on the laptop.
[17] She said that as soon as she saw what was on the screen, she turned the laptop around so she wouldn’t have to watch. She testified that she started to fear that he was, in her words, “a pervert” for leaving the video on. At that point, she also indicated to the Defendant that she wanted to go home, and that she did not want to go downtown anymore. According to the Complainant, the Defendant immediately responded, “No, you’re staying here with me tonight.”
[18] The Complainant stated that her mind began racing for ways to leave the apartment. She told the Defendant that she would call a cab if he couldn’t drive her, but he just kept saying that she is staying with her tonight. She indicated that she kept trying to find ways to talk him out of it, saying that her family would be looking for her, but the Defendant just looked at her blankly. She described his response to her desire to leave as a non-response: “Like he was ignorant about it… like he wasn’t caring at all that I felt uncomfortable that I was saying I wanted to leave.”
[19] She explained that she had her cell phone with her, and thought about making a call. However, she realized that she did not have an internet connection on her phone while in the Defendant’s apartment, and she was worried that 911 would not be able to track down her location if she called. She also testified that she did not want him to see her calling someone on the cell phone for fear of angering him, and so she threw the phone down on the bed and went back through the door to the living room. The Defendant followed her out of the bedroom.
[20] According to the Complainant, the Defendant then began following her wherever she went in the apartment. She said that he stood in front of her or between her and the apartment door, signaling that she was not to leave. He then went into the kitchen. Fearing that he was looking for a knife, she stood at the doorway of the small kitchen watching him. As she described it, he was acting in a way that greatly intimidated her. “Someone that follows behind you everywhere you go is scary.”
[21] In a rather thorough cross-examination, defense counsel pressed the Complainant on why she did not simply leave the apartment:
Q: Why is it that you didn’t just leave [the Defendant’s] unit when you wanted to?
A: I felt bombarded. He gave me the impression that I could not leave. He was following me and stuff…
Q: Did you actually make any attempts to leave?
A: I can’t remember how many times but I know it was a number of times… I already tried, but he was in my way the whole time.
Q: So, you thought that that was what was in his mind?
A: No, he showed me that by the way he was moving.
[22] The Complainant ended the exchange with defense counsel by making an observation that would be evident to anyone seeing the two of them in the same room: “He’s two times my size. I didn’t want to fight him…”
[23] At some point, the Defendant approached the Complainant and started reaching for her with his arms and pressing himself on her. She said that in an effort to repel him she exclaimed, “I have AIDS.” According to the Complainant, the Defendant did not seem to be fazed by this, and replied, “I got AIDS too.”
[24] She testified that she was very fearful at this point, and that, in addition, was concerned that she not contract a disease or get pregnant. She thought to distract him by saying he should use a condom or some protection, and when it turned out that he had no condoms in the apartment she suggested he use a plastic sandwich bag that she had seen in the kitchen. She could not remember if the bag had anything in it, but she recalled that he held the bag in his hand and stayed near her.
[25] The Complainant said that she then thought to try to retrieve her phone on the bed, but the Defendant followed her into the bedroom and shut the door. She looked around for the phone but could not find it, and then saw the Defendant look at her and take off his pants and underwear. She told him, “If you don’t do anything to me I won’t call the police. Just let me go.”
[26] On hearing this, the Defendant told her that his wife is in India and that he wants to have some fun with her. The Complainant testified that she answered him in a combination of surprise and panic, asking, “You have a wife? Why are you doing this to me?” She then started yelling, and he responded gruffly, “Shut up bitch”, and put his hand to her mouth.
[27] She recalled that he started pushing forcefully up against her. She was aware that she is small and fragile and was afraid he would hurt her. She told him to stop and repeated, “I don’t want to do this,” but he put his hand around her and pulled off her sweat pants and underwear. He then put the bread bag on his penis and forced himself inside of her.
[28] The Complainant testified that she thinks he ejaculated – at least she recalls him slowing down and making noises – although she conceded that she was in shock mode. She said that she saw that when he pulled out of her there was blood on the sandwich bag and on her own vaginal area. She also realized that the bag was ripped and that she could see the top of his penis through the bag. She started thinking he might have given her a disease or got her pregnant. She was very scared, and ran to the washroom just to the left of the bedroom door.
[29] She washed herself in the washroom, and the Defendant followed her there and watched her. She told him, “Look what you did to me.” Again, he was essentially non-responsive despite her visible state of upset. The Complainant testified that the Defendant conveyed through his expressions that he had gotten his satisfaction and did not seem to care that she was bleeding. She then said she was going home, but he persisted in saying “No, you’re staying with me tonight.”
[30] According to the Complainant, what followed was a series of steps in which she tried to distract him in order to retrieve her phone or get herself out of the apartment. Thinking that she needed something to later show to the police, she tried to take a picture i.d. card of his that she saw lying in the bedroom, but he snatched it back from her. She then asked him to find her matches to light a cigarette, but he said he didn’t have any and told her to light her cigarette on the stove top.
[31] When asked in cross-examination why she didn’t just go out onto the balcony of the apartment, she responded that she had in fact contemplated that but was afraid that the unit was on too high a floor for her to safely jump. Defense counsel indicated that what he meant was why didn’t she go to the balcony to shout for help, to which the Complainant answered was that she was so panicked that the possibility of jumping was the one thing that crossed her mind.
[32] She then thought of telling the Defendant that if he gives her money – she recalled mentioning $200 – she will quietly leave. As the Complainant explained it, she said this in order to trick him into thinking that he could just let her go. In fact, she said that she even offered to come back the next day if he would give her money. It was the Complainant’s evidence that this conversation, which took place after they had already had sex, was prompted by her in the hope that it would allow him to feel that he could release her without any further harm.
[33] After trying the $200 rouse, the Complainant calmed down a bit and sat down in the living room, at which point she noticed a house phone. To distract the Defendant, she asked him to get her a drink. He went to the kitchen to pour a glass, but according to the Complainant he did it too quickly and so she asked for some ice and asked him to find her cell phone.
[34] When he went back to the kitchen for ice, she grabbed the house phone and dialed 911. She spoke in a low tone to the 911 operator, and hoping that he would not notice she spelled out the word “r-a-p-e”. However, he did notice and said “Why did you say I did that?” He then grabbed the phone from her and hung it up. The phone subsequently rang as if the operator were calling her back, but the Defendant would not let her answer it. He then walked back to the kitchen, apparently relaxed, and got himself some food.
[35] In under 15 minutes she heard a hard knock at the door and a man’s voice. She assumed this was the police. The Defendant walked to the door and looked through the peephole. He then backed away from the door, and the Complainant approached and unlocked the series of three or four locks on the apartment door. It took her several minutes to get all of the locks open.
[36] When the Complainant opened the door she saw a mailbox and some people standing in the hallway. She ran past them to get out of the apartment and started crying. She stood against the wall and the police began talking to her, but she was in a state of shock and on the witness stand could not remember what they said.
[37] After a short while, the police took the Complainant to the hospital. She waited there with one of the officers and eventually was attended to by a nurse. The Complainant related that the nurse examined her, but had a hard time extracting blood from her veins. She said that she would return the next day to try again. The nurse then took a swab from her, and, feeling very nauseous, she went home.
b) The Defendant’s version
[38] The Defendant agrees with the Complainant that he drove her in his car from Cosmo’s house to his own apartment, but denies that she had first asked him for a ride downtown. He says that she only mentioned going downtown once she was in his car on the way to the apartment. He refused to give her a ride downtown, and said that she knew all along that he was going to his apartment and that she came voluntarily.
[39] Oddly, when asked why he was taking a young woman that he just met to his apartment, the Defendant had no answer. He repeatedly said that he was going to his apartment because he had not been there since getting off work and he needed to shower, eat dinner, and go to sleep. As for what he thought the Complainant was going to do at his apartment, the Defendant seemed entirely oblivious. He said he did not know why she came along with him; his own plans for the rest of the night – showering and eating before going to sleep – did not seem to acknowledge her presence.
[40] In any case, the Defendant testified that he did not know why the Complainant accompanied him to his apartment. He apparently never asked her.
[41] According to the Defendant, once in the apartment he showered and poured a drink for himself and the Complainant, and that as they sat drinking she started saying that she wanted to go downtown to a party. He told her he can’t drive after drinking, and testified that he told her “if she wants to go she can”.
[42] He denied watching pornography in his bed on his laptop, but rather said that the Complainant began asking him for money and saying that she needed $200 for her trip downtown. He testified that it was only when he asked her why she needed money that she suggested he could have sex with her if he paid her:
Q: So, initially she says that she needs $200 and then I’ll go. Is it you who said, why should I give you $200?
A: Yes.
Q: No thought of sex in your mind?
A: No.
Q: Sex hadn’t occurred to you at all until she offered it to you for $200?
A: Yes.
[43] The Defendant concedes that he and the Complainant eventually had sexual intercourse in the apartment, but states that it was the Complainant’s idea. He also concedes that he used a plastic bread bag in place of a condom, but says that was at the Complainant’s suggestion as well. He described that she went to the kitchen and removed the bag from the refrigerator and handed it to him, telling him to use it for protection. In cross-examination, he asserted with some confidence that it was all the Complainant’s idea:
Q: And you’re okay with this, sir? Using the bread bag to have sexual relations with this woman who you just met and who until moments ago you had no sexual attraction to?
A: Yes, when she agreed, of course.
Q: You didn’t have any problem having sex in a bread bag with this woman?
A: She said use the bread bag.
[44] The fact that the bread bag ultimately tore, and that the plastic obviously caused bleeding in the Complainant’s vagina, was, in the Defendant’s view, also the result of the Complainant’s own choice:
A: “I believe there were some scratches because of the bag.
Q: It’s not designed to be used for intercourse?
A: She knew that.
[45] It was the Defendant’s evidence that he told the Complainant that he had no money on him, but that he would give her the $200 at a later time. According to the Defendant, he intended to give her the money but did not want to go to the mall down the street from his apartment to take it out of an ATM machine. However, he was certain that he had assured her that she would be getting the money:
Q: So you never said you’re not going to give her $200? Maybe not now but in a little while?
A: I said I would give it to her.
Q: So you never gave her any reason to believe that she’s not getting $200?
A: She wanted me to go to the machine and get the $200, but I told her I’m not getting it right now.
Q: She never got the $200 after the police came?
A: No.
[46] It is the Defendant’s view that despite these assurances, the Complainant was so angry at not getting the money immediately that she called 911 and reported a rape. This brought the police to the apartment and, as the Defendant acknowledged, virtually guaranteed that the Complainant would never get the $200 she was demanding.
[47] The Defendant also testified that the Complainant had ample opportunity to leave the apartment, but stayed of her own accord. He stated that after they had sex he went to the washroom and took a shower, leaving the Complainant alone and free to do whatever she wanted to do, including leaving the apartment if that was her desire. He also indicated that he poured her a drink of whiskey, which she accepted, and that he allowed her to smoke cigarettes in his apartment, which she had asked to do and which made her comfortable.
III. The police arrive
[48] Although the Complainant and the Defendant differ in the ways that they relate the events, there are some things which are not controversial between the parties. A plastic bread bag was found in the Defendant’s apartment, and an analysis of that bag disclosed that it contained the Defendant’s semen as well as blood from both the Complainant and the Defendant. The Complainant’s hospital records confirm the presence of Defendant’s semen.
[49] In addition, the Defendant’s laptop computer was found lying on his bed, as was the Complainant’s cell phone. Two glasses with whiskey and two cigarette butts were found in the apartment.
[50] The first police officers to arrive at the apartment were directed there by the 911 operator. The Complainant did call that emergency line, and did indeed spell out the word “r-a-p-e”.
[51] The officers who answered the call – Cameron Monroe and Gregory Manuel – both testified at trial. They each said that after they knocked on the door, the Complainant came running out of the apartment in a distraught state and cowered with fear in the hallway behind them. They also testified that the Complainant continued to be demonstrably upset during the car ride to the hospital.
[52] Officer Manuel went into the apartment to deal with the Defendant while Officer Monroe remained in the hallway to accompany the Complainant. Officer Manuel testified that when he arrived on the scene, the Defendant was wearing nothing but a white pair of underwear, and that his underwear was stained with what appeared to be blood.
[53] According to both Officers Monroe and Manuel, both the Defendant and the Complainant appeared to have been drinking. The records of the Complainant’s hospital visit also indicate that the medical staff observed her to be intoxicated.
IV. The W(D) analysis
[54] It must be said – although in a criminal case such as this it really goes without saying – that “the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence”: R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, at para 36.
[55] Where, like here, the Defendant has testified in his own defense, it must also be kept in mind that a criminal trial is not a credibility contest. As Cory J. stated in R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para 10, a trier of fact “need not firmly believe or disbelieve any witness or set of witnesses.”
[56] Moreover, as judge sitting alone it is incumbent on me to proceed in accordance with the instructions that Cory J. states that a jury should properly receive in a case where credibility is important:
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.
R v W (D), at para 11.
[57] The evidence must, of course, be considered in its totality, and “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. Accordingly, I would have to enter a verdict of acquittal if I were “unable to resolve the conflicting evidence and, accordingly, [were] 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).
[58] Having heard all of the evidence, I am convinced that the version of events narrated by the Complainant is truthful. As Iacobucci J. stated in R v Starr, 2000 SCC 40, [2000] 2 SCR 144, at para 242, “something less than absolute certainty is required” since that would set the Crown’s burden impossibly high. Here, on the totality of evidence, I am not, as Code J. described it in R v Edwards, 2012 ONSC 3373, at para 20, left in “a state of indecision or uncertainty” as to where the truth lies.
[59] In my assessment, the Defendant’s evidence is, as Crown counsel put it in his final submissions, “self-serving and nonsensical at the same time.” In order to believe the Defendant, one would have to believe that he took a young woman to his apartment without ever turning his mind to why he was doing so, and with no other thought than to shower, eat, and go to sleep. He relates the entire episode as if he and the Complainant occupied the same space but existed in different dimensions, and he was entirely oblivious of her presence until the moment they had what he calls consensual sex.
[60] I pause here to observe that in cross-examination counsel for the Crown asked the Defendant several times whether he found the Complainant to be attractive. In his final submissions, counsel for the defense produced for me the Court of Appeal’s decision in R v MF, 2009 ONCA 617, which holds that an accused person’s answer to this kind of question should not form the basis for rejecting his evidence. As the court explained it, asking whether a complainant in a sexual assault case is attractive fosters the stereotype that only attractive women are sexually assaulted, and, in addition, is designed to be a question to which there is no good answer – especially since asking it in this way creates an ambiguity as between finding the complainant sexually attractive or finding her attractive in a non-sexual way.
[61] I take the Court of Appeal’s point that these questions are to be ignored. In the present case, they were in any event unnecessary. The Defendant’s testimony that he was oblivious to the presence of a young woman in his car and his apartment, and his failure to answer the straightforward question of why he brought her there, already undermined the credibility of his story.
[62] The Defendant’s view is that everything that transpired was a matter of choice for the Complainant: coming to his apartment despite wanting to go downtown, engaging in sex that was abusive enough to make her bleed, using a bread bag from the kitchen in place of a condom when they had been to a convenience store earlier that night, and demanding $200 then calling the police in order to ensure that she would not get the money. None of this makes any sense or has any air of reality.
[63] The Defendant mischaracterizes things done by the Complainant out of desperation as things done out of choice. The Complainant did not freely decide, without any coercion, to shred her internal organs by placing a plastic bag over the Defendant’s penis as he penetrated her.
[64] It is also the case that the Defendant is not telling the truth when he says that the Complainant was free to leave his apartment. When the police arrived at his front door, he was wearing bloody underwear. It is obvious that he did not shower after sex, as he said, as he was still covered with blood from the coercive sexual intercourse with the Complainant when he put his underwear back on. There is no credibility to his statement that he immediately took a shower and washed himself off, and that he had during that time left the Complainant to stay or leave as she pleases.
[65] Nothing about the Defendant’s evidence leaves me in a state of reasonable doubt. The Defendant himself testified that he was incapable of socializing with the Complainant as his lack of knowledge of English made this nearly impossible. The only reason he brought the Complainant to his apartment instead of taking her downtown as she had requested was to force her to have sex.
[66] The picture of this one-night episode drawn by the Complainant and is the only one that makes sense given the evidence overall. While the Complainant’s testimony suffered from a number of mistakes that defense counsel ably identified, these were in the nature of understandable memory confusion given the stress of the night she endured. Her small errors did not undermine the coherence or credibility of her testimony.
[67] For example, the Complainant testified that the Defendant was in the kitchen when she went to see what he was doing. In cross-examination, defense counsel pointed out to her that in the statement she gave to the police she had said that she went into the kitchen first and that he followed her there. When confronted with this error, she conceded that she may have gotten the sequence wrong but was confident that all the details that she described had indeed taken place.
[68] In her testimony, the Complainant also appears to have confused the sequence of events leading to sexual intercourse. At trial she thought she had gotten the bread bag just before the Defendant got undressed, while in her police statement she had said that the Defendant was already naked in bed when she ran to the kitchen for the bread bag. However, nothing turns on what I take to be a genuine memory lapse over a detail; both parties agree that they had sex in the bedroom, that the Defendant was naked and the Complainant was half naked, and that a bread bad was grabbed from the kitchen and used by the Defendant. The Complainant explained that it is hard to recall with precision the events that occurred in a few short, panicked moments. As she put it, “It should have been switched around. They both did happen, just not in order.”
[69] As another example, the Complainant testified that she could not recall whether there was anything in the plastic bread bag when she grabbed it in the kitchen, whereas at the preliminary inquiry she had said that it had some bread in it which she emptied out. Again, this memory lapse is understandable, and is so minor that it does not run counter to the credibility of the Complainant’s narrative.
[70] The Defendant himself concedes that he and the Complainant were both in the kitchen in one sequence or another, and that the Complainant grabbed the bread bag for him to use during sex. The question of which one went into the kitchen before the other, or precisely when the Defendant took off his pants, or whether bread crumbs had to be dumped out of the bread bag before the Defendant penetrated the Complainant with it, is of no moment in the overall analysis.
[71] The Complainant’s evidence that the Defendant forced her into sex against her will, and that she was confined in the Defendant’s apartment until she managed to whisper “r-a-p-e” to the 911 operator and prompt the police to arrive on the scene, is entirely credible. I accept her evidence, and am convinced of its truth beyond a reasonable doubt.
V. Disposition
[72] I find the Defendant guilty of sexual assault and unlawful confinement, contrary to sections 271(a) and 279(2)(a) of the Criminal Code, respectively.
Morgan J.
Date: December 3, 2015