TUESDAY, ARIL 14, 2015
R E A S O N S F O R J U D G M E N T
CAREY, J.: (ORALLY)
This was a two witness one count sexual assault trial. Both the Crown and defence agrees that the principles of R.v. W.D. and the Supreme Court of Canada apply here. The complainant L.F., who indicated that she was a licensed paralegal, cited the same principle to explain her initial reluctance to complain to the police about this incident.
She described being sexually assaulted by anal and vaginal penetration and vaginal intercourse, all against her will, by Mr. Bernal, an old friend with whom she had recently reacquainted. There is no medical evidence of injury or of sexual violation. L.F. indicated she showered after the assault and that she wasn’t injured.
The police took pictures of the complainant’s bedroom which were entered as exhibits. These pictures were taken on the day of her complaint approximately a week after the incident occurred according to her. The complainant said that she didn't wash the sheets after the assault and that the same sheets remained on the bed from the time of the assault to when the police came. There was no evidence called or filed as it relates to any examination of the sheets. There was a forensic examination of the complainant’s cell phone that extracted text messages that were exhibits in the trial.
The defendant gave evidence agreeing that he attended at the complainant’s apartment but categorically denied any sexual contact by him. He said he left after over an hour talking mostly on the bed with the complainant L.F. He said he was prompted to leave rather hurriedly by the complainant’s upset emotional state and a kiss on the cheek that left him feeling “weird”. His attempts to contact L.F. by phone and text afterwards went unanswered.
The Defence’s Position:
The defence emphasizes a lack of corroboration of the complainant’s story of being attacked in her own home by a friend and says it would be dangerous to convict on her evidence. Her evidence that she felt there was no point to reporting and her reluctance to be examined and probed was described as shocking. Her statement that she swore an oath as a certified paralegal, not to bring frivolous claims, as justification for not complaining and her lack of details about the defendant’s clothing being moved or removed were examples of her lack of credibility. Her whole story about the rapidly escalating attack almost as soon as Mr. Bernal entered the apartment defies logic says the defence. The emails are explained and are consistent with the defendant’s story it was argued.
The Crown’s Position:
The Crown says that the submissions of the defence reveal some of the rejected stereotypes of how victims of sexual violence are supposed to act. While the complainant might present as odd or different, that doesn't make her incredible, and the defence did not show any inconsistencies in her evidence. Contrary to the defence the Crown asserts that the messages are “completely instructive” as to the accused’s credibility and shows him as reaching out to a vulnerable person, offering her marijuana to soften her resistance, and clearly using the word nap as a euphemism for having sex. The text messages after the date of the allegation show his concern over possible consequences to his behaviour.
Analysis:
I agree with the Crown that it is inappropriate to rely on perceived beliefs as to a typical victim of sexual abuse and how they would react in the circumstances. In my view the defence was entitled to point out the uniqueness of the complainant’s explanation for not going to the police and her refusal to be examined. That was put forward as a convenient way to explain the lack of confirmatory evidence, the defence argued that the complainant knew would not be found because the attack never happened.
Defence counsel has an affirmative obligation to vigorously scrutinize the evidence and to defend the accused person without fear of being labeled as insensitive to the plight of victims of sexual violence. The point of the defence here was that this was not the victim of sexual violence, at least not at the hands of Mr. Bernal.
The text messages put into evidence were in my view capable of confirming the defendant’s evidence. He explained that the reference to “naps” was a joke between the two. The responses of the complainant and the use by both of the LOL acronym for laugh out loud seems to confirm the lightness of some of their pre-meeting exchange. The complainant jokes that she could “use some beer, coffee and a maid LOL”. Her response of the defendant’s offer of “green” or marijuana is “So no beer?” That exchange doesn't seem to reflect a one-sided effort by the defendant to promote intoxicants upon the plaintiff.
The emails that shortly followed the defendant’s visit were fairly conceded by the Crown as equally consistent with the defendant’s story. It was suggested to the defendant that his final email showed a concern on his part over the complainant’s non response that reflects his guilt over what he’d done and the possible consequences. I do not see that message as inconsistent with the defendant’s evidence that he was concerned about the complainant’s behaviour and was confirming that she didn't want him to communicate with her. It could also be consistent with the complainant’s story.
As acknowledged earlier the test for a trier of fact in considering whether the Crown has proven its case beyond a reasonable doubt is set out in the R.v. W.D. decision in the Supreme Court of Canada. The first stage in that test requires me to ask myself if I believe the defendant’s exculpatory explanation. If as a trier of fact I do believe him he is entitled to an acquittal irregardless of whether the complainant seemed credible.
Mr. Bernal’s evidence was given in a straightforward narrative that did not reveal any rehearsal or obvious script. He impressed me as attempting to give an honest account. He was not overly practiced or eloquent and he needed help in remembering the word fetal to describe the complainant’s position at one point on her bed. His use of the word weird to describe how he felt when he left the apartment was clearly inadequate for what he was trying to express but it was all he could come up with. His inarticulation, his demeanor and his answers, both in-chief and in cross-examination, in my view told against a finding by me that he was making up the story. In short I believed him and I believed his evidence and in the circumstances I find that his explanations could reasonably be true.
In the circumstances the Crown had not persuaded me of Mr. Bernal’s guilt beyond a reasonable doubt and he is acquitted.
MR. SCOTT: Thank you, sir.
THE COURT: Thank you both.
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Elaine Paquette, certify that this document is a true and accurate transcript of the recording of April 14, 2015, in the Superior Court of Justice held at 245 Windsor Avenue, Windsor, Ontario taken from Recording 0899-245-CRTRM6-20150414-093501-10-CAREYT which has been certified in Form 1 by Shari Beaudin.
December 13, 2015 _________________________________
Date Elaine Paquette
Authorized Court Transcriptionist
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO S. 486(4) OF THE CRIMINAL CODE OF CANADA, AS ORDERED BY HIS HONOUR MR. JUSTICE T. CAREY ON APRIL 13, 2015
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
V.
ERNESTO BERNAL
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE MR. JUSTICE T. J. CAREY
On April 4, 2015, at WINDSOR, Ontario
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO S. 486(4) OF THE CRIMINAL CODE OF CANADA, AS ORDERED BY HIS HONOUR MR. JUSTICE T. CAREY ON APRIL 13, 2015
APPEARANCES:
K. Bertholet, Ms. Counsel for the Crown
D. Scott, Mr. Counsel for Ernesto Bernal
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Reasons for Judgment Page 01
- Carey, J. (Orally)
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO S. 486(4) OF THE CRIMINAL CODE OF CANADA, AS ORDERED BY HIS HONOUR MR. JUSTICE T. CAREY ON APRIL 13, 2015
Transcript Ordered: December 10, 2015
Transcript Completed: December 13, 2015
Ordering Party Notified: December 16, 2015