Court File and Parties

Court File No.: CR-16-30000018-0000 Date: 20160714 Superior Court of Justice - Ontario

Re: Regina v CH

Before: E.M. Morgan J.

Counsel: Tim Edwards, for the Crown Chris Hynes, for the Defendant

Heard: July 4-6, 2016

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.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] CH is charged with 4 counts: 1) sexual assault, 2) breach of a probation order, 3) assault, and 4) attempted sexual assault. The allegations are brought by his partner, with whom he has been residing for roughly 6 years.

[2] The allegations stem from two different incidents. One took place on May 16, 2015 and culminated in a 911 call by the Complainant. The other incident took place sometime earlier, but was only reported by the Complainant on May 19, 2015 when she attended at the police station to give a full statement about the May 16, 2015 events.

[3] The Complainant and CH both suffer from mental health problems. CH testified that he has been diagnosed with schizophrenia. The Complainant testified that she is on various forms of medication for her mental health issues, and has been suicidal in the past. At the commencement of trial counsel for the Crown submitted to the court a letter from a physician at Anishnawbe Health Toronto written in anticipation of trial indicating that the Complainant suffers from complex PTSD and that she finds testifying to be “extremely stressful and anxiety-provoking.”

I. The May 16, 2015 incident

[4] CH is charged with attempted sexual assault and assault in respect of an incident that took place on May 16, 2015.

[5] It is evident that on that day the Complainant was in a fragile state. The previous day, May 15, 2015, she had had a severe anxiety attack and was taken to the hospital in an ambulance.

[6] The Complainant and CH both described the May 15th hospitalization. The two versions differ in tone and in assigning blame – the Complainant says that she fought with CH, threatened suicide, and that he was the cause of her fears and anxiety, while CH says that he took good care of the Complainant, arranged for the ambulance and tended to her needs, and that her accusations against him are a product of her mental instability and paranoia. Nevertheless, the Complainant and CH both agree that she was going through a difficult time. She apparently stayed at the hospital for some time and then was released later that day when CH was called by the hospital to take her home.

[7] Although CH denies it, it is obvious from the evidence of the Complainant and from the 911 call that the two of them had a fight the next day, May 16th. The Complainant testified that CH was mad at her because she was not cleaning the house or doing the dishes. The exchanges were mostly verbal, not physical, prior to the May 16th incident, but the Complainant said that CH was verbally abusing her with many put-downs playing on her low self-esteem. She related that he was also spending long stretches of time ignoring her and letting her suffer in silence, and generally making her feel worthless and vulnerable.

[8] The crucial events of May 16th began with an argument at the kitchen table. As the Complainant described it, CH came up behind her while she was sitting at the table. She said that he grabbed her by her hair, pulled her out of her chair, and knocked over the chair. She testified that, “He told me that he was going to teach me a lesson.” The Complainant understood that to mean that some type of physical abuse was going to occur. She commented, “I know from experience not to fight back.”

[9] According to the Complainant, CH then dragged her to the bedroom and threw her on the bed by her hair “like tossing a towel on the bed.” She described crawling to the corner of the bed against the wall and pulling her knees up and wrapping her arms around her knees in a defensive position while trying to fight him off. She said that CH kneed her in the side, and that he was trying to grab her ankles while she tried to hold her position. She then went on to say that after a brief fight on the bed, he eventually gave up and said “forget you”. He called her a “dirty savage that needs to be fucked.”

[10] It was the Complainant’s evidence that in all of this violence she recognized what she called CH’s typical “pre-rape” behavior. She stated that, “He gets frustrated, he’s not talkative, he normally says he ‘needs to get off’ although this time he didn’t say this. He didn’t have to.”

[11] Shortly after he told her “forget you” and left the bedroom, the Complainant said that she came out and apologized for making him mad and for not doing what she was told. She testified that CH did not respond to that, and that he stayed mad at her and went back to ignoring her.

[12] The Complainant went on to say that after coming out to the living room and apologizing, she picked up CH’s cell phone and pretended to be playing a game with it. She then took it into the bathroom and turned on the shower to cover the noise. She said that she sat on the bathroom floor with her back against the door and her feet braced against the tub, and called 911.

[13] The Complainant testified that on the phone she whispered to the operator about what was going on, and that she stayed in the bathroom for 10 to 15 minutes until the police came. This was about half an hour after the fight with CH. The Complainant confirmed that she had no visible bruises or any other physical injuries when the police arrived on May 16, 2015.

II. The previous incident

[14] CH is also charged with sexual assault in respect of an incident described as having taken place about 3 weeks before May 16, 2015.

[15] Several days after the May 16th incident, on May 19, 2015, the Complainant attended at the police station and made a videotaped statement to the police. During that statement she disclosed for the first time that CH had sexually assaulted her 3 weeks beforehand. Prior to this interview, when speaking to the police who attended her apartment on May 16th, she had only spoken of the fight that day.

[16] At trial, her explanation for this was that, “It was hard to open up to a male officer in the first place. I don’t trust males.” That, however, does not accord with what she said at the police interview itself, where she indicated that she had not previously reported the attack 3 weeks earlier because, mysteriously, CH had the phone and would not let her use it. She did not indicate to the police, as she did at trial, that she was embarrassed or that no one would believe her. It is, of course, understandable that a person would not tell someone of their embarrassment when that was the very person, or type of person, who might cause the embarrassment. Nevertheless, the Complainant’s explanation leaves the impression that she is making up a new explanation each time she speaks about it.

[17] Overall, the most problematic aspect of the Complainant’s testimony is her sense of time – or rather, the lack thereof. She at first said that in 2015 she had known CH about 7 or 8 years, and then insisted that they had met in 1998. She then testified that the previous incident of sexual assault had occurred about 3 or 4 days before the May 16th incident, although on Crown counsel’s prompting she then changed this to about 3 weeks before May 16th – which is what she had told the police on May 19th.

[18] The prior incident in which she alleges a sexual assault took place – whenever it took place – was described by the Complainant in a way that was not easy to follow. She indicated that in the lead-up to that incident she had asked CH if she could go visit her children in Kingston, Ontario, and that CH had forbidden her to go. She said that an argument ensued, and that eventually CH told her, “Get undressed, get into the bedroom, I want to get off.”

[19] She recalled that CH then shook her and slapped her in the face before having sex. She said that the shaking and slapping took place in the kitchen before they went into the bedroom. She described him shaking her by the shoulders so that her head rocked back and forth and she felt pain in the back of her neck. He then slapped her on the cheek when they were standing in the doorway between the kitchen and the living room. It was a strong enough slap that her face felt sore afterwards.

[20] The Complainant continued her description by relating that once they were in the bedroom, CH had told her to assume the usual position. She described this as being on her hands and knees on the bed, “doggy style”. She testified that he pulled her hair as she got onto the bed, pushed her face into the mattress, and kneed her in the side. He then had “rough sex” with her that lasted about 5 or 10 minutes.

[21] It is worth noting that at one point in her testimony, counsel for the Crown had to refresh the Complainant’s memory with respect to her allegations of having sustained physical injuries during the abuse leading up to the sex on this day. She did not seem to remember it on her own, but once refreshed the Complainant testified that she had bruising on her face and ribs. She said that the injury on the right side of her face resulted from her being slapped, and the injury to her left and right rib cage resulted from being kneed. Apparently, these injuries had healed by the time she went to the hospital on May 15th and 16th, as there were no signs of any physical injuries reported on those dates.

[22] For his part, CH had a very specific recollection of the incident prior to May 16th. He said that it took place on April 7, 2015, a week or two earlier than the Complainant had dated it once reminded by the Crown. CH’s evidence was that he recalled this date because it was the one occasion in months when they had sexual relations, and he was pleasantly surprised. He was very specific in recalling that it was fully consensual, and that in fact the Complainant initiated the sexual contact, and that she had lay on top of him during intercourse.

[23] CH denied ever having non-consensual sex with the Complainant, and claimed that he respected her much too much to do a thing like that. He also testified that the Complainant had been in an automobile accident years before and had injured her left leg, which made it difficult or impossible for her to get down on her knees on the bed. He said that they therefore never had sex in the position that the Complainant described.

[24] The Complainant, in turn, denied CH’s version of events. She testified that, in fact, whenever they have sex it is always non-consensual. She said that she does not like sex and never truly consents to it. She testified that she has learned not to protest when CH wants sex, and generally just quietly acquiesces in order to get it over with.

III. Approach to the evidence

[25] A number of issues other than the two specific incidents were covered in the evidence, including some of the history of the relationship between the Complainant and CH, and certain details of prior criminal charges arising out of their tumultuous relationship. In my view, however, the only important evidence is that which relates to the two days on which assaults allegedly took place. The previous conduct of CH, and his relationship with the Complainant in the months and years leading up to these two incidents, can and should be ignored.

[26] That holds equally true with respect to count 2 of the indictment: breach of a probation order to keep the peace and be of good behavior. The Crown and defense both agree that this charge will rise or fall with the other charges. CH was apparently under a probation order at the date of the two alleged incidents. Accordingly, if CH is guilty of one of the offenses charged in respect of those incidents he will be guilty of the breach of probation charge as well, and, correlatively, if he is acquitted of the other offenses he will be acquitted of breach of probation.

[27] In a case like this one, where the accused person has testified, the Supreme Court of Canada’s judgment in R v W(D), [1991] 1 SCR 742 applies to the analysis of the evidence. Accordingly, I must proceed in accordance with the instructions that Justice Cory, at para 11, states that a jury would properly have received 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.

[28] The evidence must be considered in its totality, such that “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 must acquit CH of any given charge if I am unable to come to a determination “as to exactly where the truth of the matter lay”, R v Nimchuk (1977), 33 CCC (2d) 209, at para 7 (Ont CA), or if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 45 CCC (2d) 546, at para 45 (Ont CA).

[29] The earlier of the two incidents related by the Complainant, some 3 weeks (or, possibly, 3 or 4 days, or, according to CH, 4 or 5 weeks) prior to May 16, 2015, is perplexing. The Complainant describes it as forced, rough sex, while CH relates it as consensual, pleasurable sex. In CH’s version, their relationship is caring and protective; in the Complainant’s version, their relationship is abusive and violent. There seems to be no middle ground between these two narratives.

[30] There is something odd about each of the two narrations of this earlier incident. The Complainant’s version sounds nightmarish, but is sufficiently muddled in its details and similar enough to the May 16th events that one suspects that several incidents may have melded into one in the Complainant’s memory. CH’s version, by contrast, sounds dreamlike, and is sufficiently specific in its description of a pleasant, but entirely out-of-character event for this dysfunctional couple, that one suspects that different events from even longer ago may have melded into one in his memory.

[31] Of course, I must keep in mind that a criminal trial is not a credibility contest between witnesses. As Cory J. put it in W(D), at para 10, as a trier of fact I “need not firmly believe or disbelieve any witness or set of witnesses.” The point is not to choose between the Complainant’s version of events and CH’s version, but rather to ask whether the overall narrative presented by the Crown leaves me with no doubt about CH’s guilt.

[32] For the earlier of the two incidents, it is impossible for me to conclude that CH is guilty of sexual assault. I do not know when this happened or what actually occurred. Both the Complainant and CH seem to relate half fantasy and half fact in respect of this incident, and they provide me with an insufficient amount of reliable information to discern the difference. I am inevitably left with a reasonable doubt about what transpired on that day, whenever it was.

[33] As for the May 16, 2015 incident, the events are more clear. Although CH denies the assaultive aspects of the day, he does not present a coherent version of what transpired. He blames the 911 call on the Complainant’s paranoia, and as proof testified that the previous day, as he left the Complainant at the hospital, he thought of calling his aunt to ask if he could stay with her because the Complainant had become delusional speaking about his abusive conduct.

[34] However, CH never did call his aunt, and he went back to bring the Complainant home from the hospital later in the day. He had no real explanation for his change of mind, and no explanation for why the hospital would send the Complainant back home with him if she were supposedly telling tales about his abusive conduct.

[35] CH testified that he heard the Complainant make the 911 call from the bathroom, but thought that she was speaking with her daughter. This comes entirely out of context and makes little sense; elsewhere, CH testifies that the Complainant had little relationship with her children and that it is he, of all people, that insisted that she stay in touch with them. In any case, he testified that it never dawned on him that the Complainant was in the bathroom calling the police.

[36] Intriguingly, CH said that he was very concerned when he was charged by the police, as he thought that could put the Complainant’s life in danger. As CH explained it, the Complainant’s life was in danger because there are a lot of people out there that would know she had him wrongfully charged, and they were likely to feel vengeful about this. I can only say that either CH is of the view that threatening statements will somehow help him, or he has a healthy fantasy life that is coming to the fore under pressure of a court case.

[37] In any case, the Complainant’s narration of the May 16th events is rather precise and clear. The hitting, hair pulling, and general physical abuse are in line with the reasons for making a 911 emergency call. The events related by the Complainant at trial accord with what she described in her police statement and at the preliminary inquiry. None of the explanations provided by CH in his testimony shed any doubt on the Complainant’s version of the assault on her that day.

[38] That said, it would be a stretch to conclude that CH perpetrated a sexual assault, or even that he attempted one, on May 16, 2015. The Complainant described what she called his pre-rape anger, but the attempted sexual part of the assault never transpired.

[39] Taking the Complainant’s testimony as entirely truthful and accurate, CH hit her, pulled her hair, and was physically rough with her. But, according to the Complainant’s own narrative, CH never seems to have gotten to a point where he tried to have sex with her. After physically roughing her up, he swore at her and then abandoned her and moved into another room. He may have intended to force himself sexually on her, but in the end he made no attempt to do so. The physical assault by CH on the Complainant on May 16, 2015 began and ended as an assault simpliciter.

IV. Disposition

[40] CH is guilty of assault under count 3 of the indictment. As a result of this finding, he is also guilty of breaching the probation order under count 2 of the indictment.

[41] CH is not guilty of sexual assault under count 1 or attempted sexual assault under count 4.

Morgan J. Date: July 14, 2016