CITATION: R. v. Hass, 2016 ONSC 2989
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D. H.
L. Ross, for the CROWN
P. Girard, Counsel for the ACCUSED
HEARD: April 25 to April 28, 2016 Reasons delivered orally June 28, 2016
REASONS FOR JUDGMENT
TAUSENDFREUND, J
OVERVIEW
1With respect to these proceedings, including the reasons that now follow, there will be an Order under s. 486.4 CCC that any information that may identify the complainant or a witness shall not be published in any document or broadcast. As such, I will not refer to any of the witnesses by name but by their initials and in case of the main protagonists, I will refer to them respectively as the accused and the complainant.
2The accused stands charged with five counts of sexual assault contrary to s. 271 CCC. These counts allege that he had both vaginal and anal intercourse with his common law partner, the complainant, all without her consent. These acts are said to have occurred during their period of cohabitation between July 2009 and August 2013.
3Both sides agree and I accept that even in a long term relationship with respect to sexual conduct “no still means no”. The matter before me in this trial, however, is a factual one. The allegations made by the complainant are all denied by the accused. It is a classic “she said – he said” case.
SUMMARY OF UNCONTESTED FACTS
4These two are about 30 years of age. They met on line in July 2008. Within a matter of weeks, the complainant had moved into the home of the accused.
5The accused, at all times, was fully employed as a heavy equipment operator by a company located about a 20 minute drive from their home. The complainant had been involved in a motor vehicle accident some years prior to their relationship. She was not employed, based on injuries she had received in that accident. She continued to be troubled by these injuries, particularly issues with her back. She remained on prescription medication, such muscle relaxers and other medication for pain and depression, said all to be related to these injuries.
6Their relationship initially appears to have been a good one. It included healthy and frequent sexual encounters. A child K.H. was born to them on July 2, 2009. The accused was also the father of a child H.H. born September 7, 2004. The mother of that child had subsequently died, making the accused the sole surviving and custodial parent of H.H. These two girls were brought up as sisters with the complainant assuming the role of H.H.’s mother.
7Both agree, and I accept, that their relationship gradually was reduced to one of frequent and constant bickering and argument. Matters spiraled downward further to include physical altercations between these two. Particulars of this I will address further.
8These parties separated on August 3/13 with the complainant and their daughter K.H. moving to the home of her parents located in a nearby town about a 20 minute drive away.
9On August 13, 2013, the complainant attended at the local OPP detachment to make a complaint of common assault on her by the accused. That process included a videotaped statement. As part of that statement, the complainant was asked by the interviewing officer whether there were incidents of sexual assault by the accused of the complainant, in addition to the details of the common assault recounted by her in that statement. She answered that there were not. As part of the usual and expected procedure, the complainant had initially been sworn and had been warned of the consequences of knowingly making a false statement.
10The accused was then charged with seven counts of common assault. On January 13, 2014, he pleaded guilty to one of these seven counts. This related to an incident outside of their home. During the course of an argument, the accused had ripped the purse from the shoulder of the complainant and had thrown it into a nearby swamp. This had caused the complainant to fall to the ground and scrape her knee. The remaining six charges were then withdrawn. The accused received a conditional discharge with terms that required him to take a 12 months course addressing the issues of anger management arising during a long term relationship.
11On or about September 13, 2013, the complainant started a Family Law application. This included her claim that she be granted custody of both girls with access for the accused to be supervised. On October 9, 2013, the accused responded with an Answer in which he challenged her claim for custody. As part of this now contested custody proceeding, the Office of the Children’s Lawyer (OCL) was brought in. On April 9, 2014 the complainant was interviewed by an OCL representative with respect to the issues of custody. The complainant made no mention of an allegation of sexual abuse of her by the accused.
12On June 3, 2014, the complainant attended again at the local OPP detachment. On this occasion, she now enlarged her complaints against the accused to include a series of seven allegations of sexual intercourse, both vaginal and anal, to each one of which she stated she had both verbally and physically objected. These charges then followed. As a result of these additional charges, access by the accused to his children was now limited to being supervised. About a year prior to the separation and based in part on the frequent confrontation between the complainant and the accused, the accused had arranged for H.H. to reside with his parents in the Bancroft area, about a 45 minute drive away. Access for the accused to H.H. was now to be supervised by his parents and access to K.H. was to occur at the supervised access centre in Belleville.
13I will now turn to that part of the evidence which is challenged and as advanced by each side.
EVIDENCE LED BY THE CROWN
14The complainant detailed six incidents of alleged sexual contact, all said to have occurred against her expressed wishes to the contrary.
First Incident
15This occurred in or about September or October 2009, about two or three months after the birth of their child K.H. As was their custom, these two then shared the same bed. The accused prodded and urged her for sex, as there had been no such encounter since prior to the birth of their child. She resisted, as her vaginal area was then still sore. She told him that it would hurt and that she, for that reason, then wanted no part of it. He would not hear of it. He proceeded to rip off her shorts and underwear, climbed on top of her and proceeded to have vaginal sex with her. She cried and told him to stop. He did not respond. He ejaculated on her stomach and left fingerprint bruises on her buttocks and thighs. Then he rolled over and fell asleep. The next day, he apologized to her stating that he would not let this happen again. There was no further such incident of forced sex and against her expressed wishes until November 2012.
Second Incident
16It was at night. They were alone at home. An argument ensued. She wanted to leave. He pushed her and she fell. He was then on top of her and ripped off her lower clothing and pulled out her tampon. She told him to stop. He did not. He proceeded with vaginal intercourse. Afterwards, he had a shower and she was left to clean the blood from the floor in the living room where it had occurred. Both then retired to bed.
Third Incident
17This also occurred in 2012. She was making dinner. The children were in the living room watching cartoons. The accused came home from work at about 6 p.m. He was in a bad mood, apparently as a result of an incident at work. He dragged her into the bedroom and ripped off her lower clothing. He told her “You love it.”. She did not, nor did she wish any part of it. So she said “No”, but then uttered the words “I love it.” She did so only at his request. He climaxed on her stomach. There were fingerprint bruises on her hip and buttocks and left bicep. They did not discuss the matter. She got dressed, checked on the girls and made dinner as though nothing had happened.
Fourth Incident
18It was evening on an unspecified date in 2013. She was doing laundry in the basement. The accused followed her. An argument started over a bag of pellets that had been left outside and had gotten wet. He ascribed blame to her and for having ruined the pellets in the process. He then proceeded to remove her lower clothing. She initially stated that she then had worn jeans and a sweatshirt. Later, in cross-examination, she stated that she generally wore shorts and a tank top around the house, but could not recall what she had worn on this day. She stated that the accused then bent her over the dryer and proceeded with non-consensual anal intercourse. She told him to stop. He did not. He urged her to say the phrase “I love it.”. She complied. Both then got dressed and returned upstairs. He later apologized. She indicated that on an earlier date the accused had raised with her the possibility of having anal intercourse. She then told him this was not “her thing”, as she did not like it.
Fifth Incident
19It also occurred in 2013 and involved alleged non-consensual intercourse. They were both in bed. An argument started. The accused became enraged. He held her by her ponytail, pulled her head back and her pants off and had anal intercourse with her against her wishes. She then thought of leaving him, but did not, due to the children.
Sixth Incident
20An argument had again started between these two on an unspecified date. She wanted to leave and he would physically not let her. He then pulled her down on the living room floor and had vaginal sexual intercourse with her against her wishes.
21She is 5’5” tall and then weighed between 145 to 150 pounds. She described the accused as being 6’1” tall and weighed about 200 pounds. By her estimation there were a total of about 15 incidents of unwanted sex which he forced on her against her will.
22She stated that after the birth of their daughter their arguments became more frequent, then occurring about every second day. A lot of their disagreements centred on the complaints by the accused of her house keeping skills. In fact, he complained on a regular basis about the messy state of their household.
23She allowed that they had sex on many occasions unrelated to any argument. The accused would make it known to her that he wanted sex and then proceeded with it. She did not indicate what type of response she would have made or given on those occasions.
24When she made her first complaint to the police about physical abuse of her by the accused, she made no mention of any unwanted sexual encounters with the accused. This was so, even after she had specially been asked about it by the investigating officer. The reason she gave at this trial was that she was too embarrassed to have mentioned it. She felt that the police would not give that information its due and that as a result of these forced actions on her by the accused, she might have had to leave the children either in the care of the accused or in the care of third parties.
25She stated that her mother in 2011 raised with her the concern about the physical and sexual abuse of her by the accused. I note that her mother in her evidence indicated that it was 2012 when the complainant first raised with her the matter of the unwanted sexual approaches by the accused.
26She confirmed that her mother took a number of photographs. These were said to represent bruises on her body made by the accused. These photographs were entered as “Exhibit 1”. They are neither clear nor definitive. Some appear to be of the same bruises. Visually, the most serious bruise appears to be to her knee said to have happened in an argument I already related between these two when the accused ripped her purse from her and threw it into a nearby swamp. This is the incident which the accused acknowledged and to which he had entered a plea of guilty. All the represented bruises on these photos appear to be minor in nature. One photo is of a represented cut to her finger when she attempted to remove a large kitchen knife then held by the accused. This was during an argument. The accused was said to have become despondent and to have threatened suicide. Despite the fact that he left the house in that state and had threatened to cause himself harm with his car and/or the knife, she did not call 911.
27She also acknowledged that there were a number of photos of her of an intimate nature taken either by the accused or by her as a “selfie”. The accused had retained these photos on his phone. She stated that she had grudgingly and involuntarily participated in these photographs knowing that there would be negative consequences for her had she not participated.
28She agreed that she had a vehicle available to her at all times during the period of their cohabitation and that she could have left as she wished at any time.
29She acknowledged that she regularly was on Percocet, OxyContin and pain killers, but denied that she ever crushed drugs and snorted them. She denied that she was addicted to alcohol or that she might ever drink first thing in the morning.
30She had prepared a notebook of her complainants about the accused. She had brought this notebook with her on August 13, 2013 when she made her first complaint to the police about the accused. These complaints detailed by her in that notebook all centered on physical abuse and did not include any reference to sexual abuse.
31She denied that she ever smoked marijuana in the house. She further denied that she ever smoked marijuana in front of the accused’s parents and denied that she told the mother of the accused that she smoked marijuana as it helped her with the pain from her injuries sustained in the MVA.
32Regarding the photos of her of an intimate nature, she again reiterated that she felt that she had to participate or that there would be negative consequences for her from the accused. She acknowledged that several of these photographs were taken either before, during or after consensual sex between these two. She also acknowledged that these photos included several “selfies” of her which she sent to the accused unilaterally and without prior notice. This included a masturbating activity by her.
33She agreed that the parents of the accused regularly came to visit them and that on those occasions his parents slept overnight on the living room couch next to the bedroom of their hosts. She stated that generally she and the accused would not have sex on those occasions. In the alternative, if they did then have sex while the parents of the accused were sleeping next to their bedroom wall, she disagreed that she would have made any verbal utterances to the effect that she enjoyed such a contemporaneous sexual encounter.
34She also disagreed that she had ever arrived on a visit with the accused at the residence of his parents while then under the influence of alcohol. She further disagreed that she had in hand on that occasion a bottle of alcohol mixed with coke and that she had then denied her daughter’s request to have a drink from that bottle as it was not just coke. She also denied that on those visits she and the accused would remove themselves overnight to sleep in a trailer some distance from his parents’ house and that she and the accused had sex on those occasions in the trailer. She also denied that the accused ever assisted with meal preparation or attended to any other household chores except for the removal of garbage.
35The mother of the complainant testified. She stated that she saw bruises on the back, arm, hand and knee of the complainant and took photos of those bruises. After the separation in August 2013, the complainant and K.H. came to live with them for eight months. She could not recall a party at her house for K.H.’s third birthday. When asked if she had made a comment on that occasion to the parents of the accused about her daughter and drugs, she denied making such a comment. She also denied that her daughter was ever on Percocet or OxyContin pills and that, to her knowledge, her daughter did not abuse prescription medication.
36The complainant’s mother further stated that she did not like the accused due to these charges and felt that he might inappropriately touch his two children if they lived with him.
EVIDENCE ON BEHALF OF THE ACCUSED
37The accused testified. He saw the complainant on a regular basis use prescription drugs such as Percocet, OxyContin, Flexeril and Cymbalta. He had witnessed occasions where through a straw the complainant inhaled the contents of a thin line laid out on a table in front of her. He expected this line to contain cocaine and/or OxyContin crushed pills. After such an incident, the complainant would get wobbly, have mood swings and become violently aggressive.
38He worked 12 hour shifts. When at work, he would try to contact the complainant by telephone mid to late morning without a response. On weekends the complainant would sleep in until noon or later while he would be up to look after the children and provide meals for them.
39The complainant drank alcohol on a regular basis. This included coolers, wine, beer and hard liquor. When at home on weekends, he would see her consume alcohol steadily through the day from the time she got up and that she would mix that with drugs.
40He described their sex life to have been healthy, frequent and never forced. If she said no, he honoured it. About two or three months after the birth of their daughter, they talked about resuming sexual contact. He asked her if she was comfortable. She agreed and they proceeded.
41He denied that he ever had anal sex with the complainant or indeed with anyone. He also denied that he ever had sex with the complainant during her period. He further denied that he removed her tampon or that he ever threw her to the floor to engage in sexual activity.
42He agreed that during the course of an argument outside of their home, after she had ripped his necklace from his neck, smashed his phone on the ground and thrown his cap into the swamp, that emotionally he lost it. He retaliated by ripping her purse from her shoulder causing her to fall to the ground and scrape her knee. He then threw her purse into the swamp. He was charged and pleaded guilty to common assault based on this incident.
43Both of their parents were present on the occasion of their daughter’s third birthday party at the home of the complainant’s parents.
44On weekends and on his return from work, he witnessed the complainant often drink with a specific female neighbour. On those occasions, he saw them both under the influence of alcohol and did not like it. It was a regular source of friction between the complainant and him.
45He spoke of the intimate photos of the complainant. It started by way of agreement between these two during a sexual episode. It was always with her consent and never forced. Several of these photos were “selfies” by her and sent to him without prior notice. On one occasion, he received such a photo while at work in the presence of his co-workers. That had caused him to take quick action to keep his colleagues from seeing the photo. For that reason, he then raised the matter with the complainant to request prior warning from her were she inclined to send him such photos of her in the future. The last three or four pictures in terms of time were all “selfies”. Their truck had broken down on that occasion. He had arranged a ride home for her while he stayed to await the arrival of the tow truck. She sent him these “selfies” while he waited in his truck. She texted him that she was sending these” selfies” to cheer him up. During one of their weekend visits to his parents’ home he showed his father photos of heavy machinery in which his father was interested. The complainant standing nearby made a comment to him that he’d better not show him “those pictures”. He told her that they were locked in his phone.
46He denied that he had ever threatened to commit suicide. He recalled an entirely different version from the one described by the complainant involving the large kitchen knife and how she came to have a cut on her finger. During the course of an argument and while in the kitchen, he saw a large knife lying on the counter. In view of their argument, he picked it up to remove it from her reach. She reached for it at the same time. Both ended up struggling for it. This resulted in the accidental cut on her finger.
47He described the fact that his parents would visit on weekends perhaps twice a month. They would sleep on the living room couch next to their bedroom wall. There were times during those occasions that he and the complainant had sex. During the course of this activity, she moaned words such as “harder” and “fuck me”.
48He denied that he ever pulled her pants down or that he ripped any of her clothing or that he dragged her away to have sex with her. He also denied that during a sexual encounter he had ever said to her that he wanted her to say “I love it.”. Essentially, he denied all of the allegations of the complainant regarding unwanted and forced sex of her and/or forced sexual contact with her by him.
49He spoke of an old camper trailer located on his parents’ property about two kilometres from their house. On their visits with his parents, the two of them on many occasions had taken a blanket from his parents’ home and had spent the night in that camper where they had sex. They called it their “hideaway”. He also described a specific incident when they had arrived for a visit at his parents’ home. She had been drinking alcohol on their drive to his parents. She had a bottle containing a mixture of alcohol and coke. By the time they arrived, she was noticeably under the influence of alcohol.
50He agreed that the messiness of their house was a constant source of friction and cause for argument. Sometimes, it was left for him to make dinner.
51In his view, the complainant had a serious drug and alcohol problem. That had led to his decision in 2012 to have his daughter H. H. reside on a full time basis with his parents. It also had led him that year to take the complainant to a detox centre in Kingston where she was to be treated for her alcohol addiction. Two days later, the complainant returned to stay with her parents.
MOTHER OF THE ACCUSED
52She testified that during the summer of 2012 at their house, the complainant had asked if she could smoke marijuana. She had told the complainant that she preferred that she did not. The complainant responded that she needed to do it as it helped her with her back pain. She then had proceeded to light up a marijuana joint. The mother recalled the incident when her son and the complainant arrived at their house for a visit. The complainant had a bottle in hand. The contents looked like coke cola. The complainant’s daughter asked if she could have a drink from that bottle. The complainant’s answer was that she could not, as it was mixed with rye. The complainant at the time appeared to be clearly under the influence of alcohol.
53She and her husband would see them almost each weekend. They would generally alternate weekend visits between their respective homes. On those occasions, she described the complainant to have been generally under the influence of alcohol and to be drinking on a regular basis. When her son and the complainant visited their home, she would be asked frequently by the complainant if they could look after their girls overnight, as she and the accused wanted to spend the night in their trailer. This was during the summer months. When visiting the home of her son and while sleeping next to their bedroom, she could hear the complainant moaning and verbalizing that she wanted “more and more”.
54She recalled the third birthday party for her granddaughter K.H. that was held at the home of the complainant’s parents. The complainant’s mother spoke to her and her husband. She said to them that she appreciated all the accused was doing to help the complainant to get off drugs, but that she was afraid that the complainant would not stop using drugs until all was lost.
55On one occasion in 2012, she saw a number of prescription pills laid out by the complainant who told her that she was overusing these as she needed something else for her constant pain.
B.H. - SISTER OF THE ACCUSED
56She is now in grade 12 and still residing at home.
57She has known the complainant since 2008 and has visited her brother and the complainant several times over the years. On one occasion, she saw the complainant cut marijuana at the stove and roll it into a joint and go to the bathroom with it. She then noticed the smell or aroma of marijuana wafting from the bathroom. Although she herself does not use marijuana, she is familiar with its smell.
58When visiting on weekends she recalled that the complainant would generally not get up until noon at the earliest. The complainant would then reach for a drink of alcohol shortly after having gotten up. On those occasions, it was she, B.H., who would often get breakfast for the girls.
C.S. – COUSIN OF THE ACCUSED
59She is age 18 and at high school.
60She described the same marijuana incident that B.H. had described. During each of the occasions that she visited the accused and the complainant at their home, she would see the complainant consume alcohol on a regular and constant basis and to the frequency and degree that she felt the complainant to be abusing it. She described the complainant on those occasions to exhibit clear signs of intoxication.
W.S. – UNCLE OF THE ACCUSED
61He described an incident where he met the complainant walking while he was returning in his car from a grocery run. The complainant was walking in a direction away from her home and about five miles from it. She appeared disoriented, smelled of marijuana and alcohol and had blood shot eyes.
E.H. – FATHER OF THE ACCUSED
62He confirmed the incident described by the accused who was then showing him photos on his phone of heavy machinery. The complainant stood nearby and said to the accused that she hoped he had “those photos” locked up. This the accused then confirmed to her.
63He described either the same or similar incident as his wife had described when they were spending the night at the home of the accused on the bed in the living room next to the bedroom of the accused and the complainant. Through the wall he could hear the complainant moan and then voice words to the effect “fuck me” and “fuck me harder”.
64He also described the same incident his wife had mentioned during K. H.’s third birthday party held at the home of the complainant’s parents. The complainant’s mother spoke to both him and his wife about the complainant saying something to the effect that the complainant would never get off drugs until she lost everything.
65He described the already mentioned use of their old trailer by the complainant and the accused who both described it as their “hideaway”.
66When visiting with the complainant, it was a regular occurrence that the complainant would get up at noon or later and would then start drinking upon getting up. On one occasion, he suggested to the complainant that she should eat something as she could not simply just drink alcohol. Her answer was that it was none of his business.
67On another occasion, he alone visited the accused during the week. He planned to stay over. He arrived at about 6 p.m. and saw the complainant and her female neighbour friend sitting at a table both apparently drinking alcohol and both under the influence. He smelled marijuana aroma on her. The complainant had told him that the accused had arrived earlier, that he was not happy regarding the drinking scene he had walked in on and that she had told the accused that she could do what she wanted. The accused then returned. Both began to argue. They then both left for several hours and returned late in the evening with pizza. Both were laughing and apparently getting along well again. Then they were off to bed.
Analysis
68The accused testified. Accordingly, I must and will be guided by the principles of R. v. W.D., a 1991 decision of the SCC. These are:
If I believe the evidence of the accused that he did not commit the offences charged, I must find him not guilty.
Even if I do not believe the evidence of the accused, if I am left with a reasonable doubt about his guilt, I must find him not guilty of the offence.
Even if I am not left with a reasonable doubt based on the evidence of the accused, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
69These allegations made by the complainant arise out of a long term relationship of about five years between these two. They had resided essentially in a common law relationship. The law is clear that even in a long term relationship, “no means no”. That legal principle is not contested in this trial. What is at issue is whether these allegations by the complainant of forced sexual contact of both vaginal and anal intercourse in fact ever happened. The complainant states they did. While she concedes that these two had a healthy sexual relationship, the accused forced himself on her against her will about 15 times during their period of cohabitation. She recounted six specific incidents each of which, she states, included sexual contact to which she had clearly said no. The accused agreed that they had enjoyed a healthy and frequent sex life during their time of cohabitation. However, he denies that he ever forced himself on her against her will or that she every verbally or physically resisted. He denied these allegations both generally and specifically.
70I will now assess the evidence of these two contradictory positions. In doing so, I remind myself that the verdict must not be based on a choice between the evidence of the accused and the evidence of the Crown: R. v. Buradin, a 2013 decision of the SCC.
Assessment of the Evidence
71The Crown points to the incident of the wet pellets which the complainant stated had brought the accused into a near state of rage followed by unwanted anal sex. The Crown urges that this incident is rich in detail which, for that reason, lends credibility to the complainant’s allegation of that incident of unwanted and forced sex. It is clear to me from the evidence that the relationship of these two was full of repeated and frequent bickering and arguing. The accused denied that there was such an incident of pellets having been left outside in the rain. On the other hand, it may well have happened. I am not satisfied that this incident by itself in the absence of corroboration assists me on the question of unwanted anal sex in the face of denial by the accused.
72When I raise the matter of “corroboration”, I remind myself that, in and of itself, corroboration is not a legal condition precedent for the Crown to make its case. An allegation of sexual assault, absent any corroboration and depending on the circumstances, may well be sufficient for the Crown to have established its case. That said, when I raise the question of corroboration, it is with respect to the evidence advanced by each side. Even as it relates to collateral matters, in the face of two competing versions of events, corroboration or the absence of it, may assist me in assessing the evidence.
73I have a series of photos taken by the complainant’s mother of injuries to the complainant. Apart from the scraped and bloody knee which I find was the result of the altercation to which the accused had pleaded guilty and the cut on the complainant’s finger which came from the incident with the kitchen knife, I must say that the remaining pictures do not assist me. Firstly, they are not of very good quality. I have difficulty identifying what it is that I am looking at. Secondly, these photos would appear to show but minor bruises, if anything at all. The evidence of the complainant was that two or three of the incidents of unwanted sex were forced on her and, as recounted by her, resulted in fingerprint marks left on her buttocks, thighs and arms. Not only are these photos equivocal in quality as to what they purport to represent, but additionally, there is no evidence that any of these bruises are the result of unwanted sex imposed on the complainant, save for photo 12. That is said to show a bruise on her inner thigh, an image which does not assist me. I cannot determine whether it is a mark of a fingerprint or even a bruise.
74In the absence of any evidence tying any of these purported bruises to the photos marked as Exhibit 1, I am left to speculate as to what they show or why they were taken in the first instance. I note that my assessment of the evidence will not and must not be based on mere speculation. I also note that the complainant had taken photos herself of injuries and bruising she said she sustained. However, she did not bother to keep these photos which she discarded with the phone which she had used to take these photos. Perhaps that reflects the importance she placed on those photos.
75What is clear from the evidence is that the relationship of these two after about the first year is a scene of constant bickering and verbal sparring. There were many separations both long and short, as the complainant returned intermittently to the home of her parents, ranging from periods of mere hours to several weeks.
76The parties separated for a final time on August 3rd, 2013 when the complainant with her daughter K.H. returned again to the home of her parents. Ten days later, she attended at the OPP and gave a sworn statement detailing a series of non-sexual physical abuse allegations of her by the accused. She had prepared a notebook in which she had detailed a series of alleged physical assaults of her by the accused. There is no reference in that notebook of any sexual assault nor did she include any reference to such allegations in her sworn statement to the police. When asked by the interviewing officer, she specially denied that any such sexual abuse had been visited on her.
77Her notebook, entered as Exhibit 2, contains several references to fingerprint bruises, the alleged result of being grabbed and pushed by the accused. This included a bruise, allegedly the result of being pushed off the bed by the accused. These notes refer to the knife incident. They state that the accused put a knife to his throat. This resulted in a cut to his skin and a cut to her. In this trial, she stated that this incident was preceded by unwanted sex with her by the accused followed by an argument leading the accused to hold a kitchen knife to his neck stating that he intended to leave in his car with the intent of suicidally harming himself. Although he indeed left, she did not call 911. The accused agreed that an incident with a knife had occurred. He stated that the complainant was then under the influence of both alcohol and drugs and was very angry with him. During the course of this confrontation in the kitchen of their home, he saw a large knife on the counter. He picked it up to remove it from the possible reach of the complainant. She struggled for it and accidently cut herself. He agreed that in the process he may well have cut the skin on his neck. However, he denied that the topic of suicide was ever raised during the course of that argument. I am satisfied that such an incident involving the knife probably occurred during the course of an argument between these two. However, it does not assist me either on the question of whether a sexual assault had occurred on that occasion or in my assessment of the evidence as a whole. As such I will consider this incident as neutral.
78The evidence given by the parents of the accused, his sister, B.H. and his cousin C.S. I found to be clear, straightforward and understated. Several aspects of their evidence favourable to the accused were elicited not in chief, but during cross-examination by the Crown. I accept the evidence of these witnesses unreservedly. It contradicts materially certain aspects of the evidence given by the complainant. Examples of such contradictions are these:
a) The complainant denied that she might drink the first thing in the morning and that she was addicted to alcohol.
(i) The father of the accused testified that on their regular weekend visits he noted the complainant to have been generally under the influence of alcohol and to be drinking it on a regular basis.
(ii) When B.H. visited on weekends she noted that the complainant would generally get up not before noon and would then reach for a drink of alcohol shortly after rising from bed.
(iii) On her visits, C.S. saw the complainant consume alcohol on a regular and constant basis while exhibiting signs of intoxication and felt that she was abusing alcohol.
(iv) W.S., the uncle of the accused, described the incident when he met the complainant walking on Highway 7 in a disoriented state smelling of marijuana and alcohol and with bloodshot eyes.
(v) The father of the accused also saw the complainant drink shortly after getting up.
b) The complainant denied that she ever smoked marijuana in the house in front of the accused’s parents and that she ever told the mother of the accused that she smoked marijuana as it helped her with the pain from her injuries sustained in the MVA.
(i) The mother of the accused stated that she in fact saw the complainant smoke marijuana in the house and on one occasion the complainant in fact asked her if she could. When the mother of the accused responded that she preferred that the complainant did not, the complainant told her that she needed to do this as it helped her with her back pain. The mother of the accused could frequently smell marijuana on the complainant. B.H. saw the complainant cut and roll marijuana in the house she saw her then retreat to the bathroom and within a short time could smell the aroma of marijuana coming through the bathroom door. C.S. testified that she witnessed that same incident.
c) The complainant denied that she had ever arrived on a visit with the accused at the residence of his parents while then under the influence of alcohol. She further denied that on such an occasion she had in hand a bottle of alcohol mixed with coke and that she had told her daughter who had asked her if she could have a drink of coca cola from that bottle that it was not a bottle containing just coke.
(i) The mother of the accused recalled the incident which her son had described in this trial of the complainant arriving at their house for a visit. The complainant held a bottle which contained a liquid that appeared to be coca cola and then the complainant’s daughter asked if she could have a drink from that bottle. The complainant answered that she could not as it was mixed with rye. The mother of the accused also described the complainant on that occasion to have been clearly under the influence of alcohol.
d) The complainant also denied that on their visits to the home of the accused’s parents that she and the accused would remove themselves overnight to sleep in a trailer some distance from his parents’ house. That was the evidence of the accused who also stated that he and the complainant would have sex in the trailer on those occasions, something which the complainant also denied.
(i) The mother of the accused stated that when her son and the complainant visited their home, she would frequently be asked by the complainant if she and her husband could look after the girls overnight as the complainant and the accused wanted to spend the night in the trailer.
e) The complainant agreed that the parents of the accused visited them regularly at their home. They slept overnight on the living room couch next to the wall of the bedroom of the accused and the complainant. The complainant stated that generally she and the accused would not have sex on those occasions. If they did, she stated that she would not have made any verbal utterances to the effect that she enjoyed such a sexual encounter.
(i) The accused testified that there were times during those occasions with his parents’ visits at their house that he and the complainant had sex. In the course of that activity, he stated that the complainant would moan words such as “harder” and “fuck me”. The mother of the accused and his father substantially confirmed his evidence in that regard.
79The complainant’s mother testified. She stated that she did not like the accused as a result of these charges and felt that he might inappropriately touch his two children if they were to live with him. In the absence of any evidence to support such a stated concern, I find that these comments substantially compromise her credibility where it is contradicted by evidence to the contrary. Specifically, I refer to the evidence of the parents of the accused who both testified as to a conversation they had with the complainant’s mother on the occasion of the third birthday party for K.H. They recalled that she stated to them that she appreciated all the accused was doing to help the complainant get off drugs but that she was afraid that the complainant would not stop using drugs until all was lost. Although the complainant’s mother could not recall the incident of the third birthday party for K.H., she denied that she made such a statement. I prefer and accept the evidence of the parents of the accused, particularly regarding this incident.
80I accept that these contradictions all relate to collateral issues. That said, these contradictions assist me in making findings of credibility as it relates to the substantive allegations in this 5 count indictment of sexual assault.
81Aside from the complainant’s contradicted evidence on collateral matters, I am also troubled by certain other aspects of her evidence. I will refer to specifics:
a) Her notebook of complaints against the accused made reference only to physical and not to sexual abuse.
b) She denied under oath to the investigating officer that there had been any incidents of sexual abuse.
c) When interviewed by a social worker representing the Office of the Children’s Lawyer as part of her application seeking custody of their daughter K.H., she made no mention of sexual abuse.
d) Her first complaints of sexual abuse to the OPP were made some 10 months after her first complaint to the police detailing only physical abuse and were made during the course of the contested custody application.
e) Even in the face of these alleged sexual assaults, she continued to send the accused unsolicited sexually explicit “selfies” of herself.
82Assessing the evidence as a whole, I am left with a reasonable doubt with respect to each of the 5 counts in this indictment. Accordingly, each of these 5 counts will be dismissed.
Tausendfreund, J
Released: June 28, 2016
CITATION: R. v. Hass, 2016 ONSC 2989
COURT FILE NO.: CR-15-08-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D. H.
REASONS FOR JUDGMENT
TAUSENDFREUND, J
Released: June 28, 2016