COURT FILE NO.: 166/15 DATE: 2016/10/28
Note: An order has been made directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. Every person who fails to comply with the order is guilty of an offence punishable on summary conviction.
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – M.P. Defendant
Counsel: J. Carnegie, for the Crown R. Sheppard, for the Defendant
HEARD: September 14, 15, and 16, 2016
GRACE J. (Orally)
A. Introduction
[1] The Crown alleges M.P. sexually assaulted T. H. (“H”) on August 4, 2014, contrary to s. 271 of the Criminal Code.
[2] It is the Crown’s position that Mr. M.P. forced Ms. H. to have sexual intercourse over her clear, repeated and unequivocal objections.
[3] It is Mr. M.P.’s position that Ms. H. consented to the sexual activity.
[4] The Crown bears the burden of proof. Mr. M.P. does not have to prove that Ms. H. agreed to have sexual intercourse. It is up to the Crown to prove beyond a reasonable doubt that Ms. H. did not consent.
[5] Consent is Ms. H’s voluntary agreement to take part in the act of sexual intercourse.
[6] Willingness is determined at the time of the event. An agreement to participate ceases to be valid if Ms. H. changed her mind and expressed in words, conduct or both, that she did not agree to continue to join in the same or a different sexual activity.
[7] Consent is also not present if Ms. H. submitted to the activity because Mr. M.P. applied force to Ms. H. or caused Ms. H. to fear Mr. M.P. would do so unless she complied.
[8] The law requires that I find Mr. M.P. not guilty if I have a reasonable doubt about whether Ms. H. voluntarily agreed to participate in the activity that forms the basis of the charge.
[9] I can only find Mr. M.P. guilty of the charge if I am satisfied beyond a reasonable doubt that Ms. H. did not voluntarily agree to join in.
[10] Mr. M.P. was not obligated to testify. He did not have to present evidence. He did not have to prove a thing.
[11] However, despite the absence of any obligation, Mr. M.P. elected to testify. That brings me to the rules that apply in those circumstances as articulated in or are based upon R. v. W. (D.), [1991] 1 S.C.R. 742 (“W.D.”).
[12] If I accept Mr. M.P.’s evidence that he engaged in consensual sexual intercourse with Ms. H. on the day in question, I must find him not guilty of sexual assault.
[13] If, after careful consideration of all the evidence, I cannot decide whom to believe, I must find Mr. M.P. not guilty because the Crown will have failed to prove his guilt beyond a reasonable doubt.
[14] If Mr. M.P.’s evidence leaves me with a reasonable doubt about his guilt, I must find him not guilty of the charge even if I do not believe him.
[15] Even if Mr. M.P.’s evidence does not leave me with a reasonable doubt concerning his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[16] I turn to the evidence at trial.
B. The Evidence at Trial
i. August 3, 2014 – Ms. D.S.’s Residence
[17] The court heard testimony on September 14 and 15, 2016. There were three witnesses. The complainant was the first witness called by the Crown. Ms. H. had previously given statements to Constable Vanderidder and Detective Weaver of the London Police Service (“LPS”) on August 4 (Reg. Ex. A) and September 18, 2014 (Reg. Ex. B) respectively. She also testified during the November 16, 2015 preliminary hearing.
[18] On the night in question Ms. H. and her two children were staying with long-time friend D.S. in Ms. D.S.’s home at W[…] Street, London, Ontario. Ms. D.S. was the other witness called by the prosecution. She had given a statement to Constable Downes on August 4, 2014 too (Reg. Ex. C). Detective Halliday interviewed her again on September 25, 2014.
[19] The accused also testified. He had given a statement to Detective Weaver on September 22, 2014. Voluntariness was admitted.
[20] Other names were disclosed during the testimony of the three witnesses. Two bear mention. B.F. owned the property municipally described as H[…] Road, London, Ontario. Mr. M.P. occupied a basement apartment in the main residence located on that property. Ms. H’s aunt, T.W., occupied the main floor. Mr. B.F. lived above the garage located there. Mr. B.F. and Ms. W. did not testify.
[21] It is undisputed that Mr. M.P. and Ms. H. were involved in a romantic relationship that commenced in January and ended sometime during the morning hours of August 4, 2014. A brief period of cohabitation had ended months earlier with the involvement of the Children’s Aid Society.
[22] Soon afterward, Mr. M.P. travelled to Alberta to work. Ms. H. said he returned to London on June 19, 2014.
[23] At the time of the alleged offence Mr. M.P. was on probation. One of its terms prohibited communication with Ms. H. That stipulation was ignored.
[24] Ms. H’s description of the key events at trial started with an August 3, 2014 get-together out front of Ms. D.S.’s home.
[25] Ms. H. said a number of people were present. They were chatting and drinking. Two things upset her. First, while there she learned that Mr. M.P. had made advances toward her friend Shelby. Second, she was upset that Mr. M.P.’s arrival was delayed because he had intervened in an argument involving another woman and her boyfriend.
[26] Ms. H’s displeasure was voiced when Mr. M.P. arrived by bicycle. A physical confrontation followed. His push was met by her punch. More words were exchanged. Before leaving the front of Ms. D.S.’s house, Mr. M.P. dropped the two beer bottles he had been carrying. They shattered. Mr. M.P. returned to his apartment on H […] Road.
[27] Ms. D.S. provided a similar, though less detailed account at trial. She remembered telling her friend that Mr. M.P. had wanted to sleep with Shelby. Ms. D.S. described the altercation that followed Mr. M.P.’s arrival by bicycle. There was yelling, a push, a punch, thrown and broken beer bottles.
[28] Ms. D.S. described an additional event. She said Ms. H. followed Mr. M.P. as he was leaving. She told the court Mr. M.P. pushed Ms. H. into a bush and told her that she better be at his place when his landlord went to bed.
[29] Eventually Ms. Stover and Ms. H. moved inside. Ms. D.S. said she retired for the evening around 1:30 a.m. Ms. H. was still awake and at home.
[30] Mr. M.P. was asked about this portion of the evening too. He said he had been drinking steadily and didn’t have a clear memory of what transpired. However, he acknowledged overhearing and then intervening in a dispute involving Mr. B.F.’s niece A. and her boyfriend. Mr. M.P. acknowledged that he had, indeed, expressed a desire to have sexual relations with Ms. H’s friend S. on an earlier occasion.
[31] Mr. M.P. also recalled Ms. H. coming toward him quickly as he approached Ms. D.S.’s home. He said she gave him a “good whack” and told him she knew he had expressed interest in sleeping with her friend. Mr. M.P. acknowledged he may have pushed Ms. H. but said that she was screaming “in my face”. He also agreed that two beer bottles broke when he dropped the bag he had been carrying.
[32] Mr. M.P. maintained that he regretted the incident. He said he returned to Mr. B.F.’s residence. He remembered calling Ms. H. sometime before midnight to see how she was. One of them mentioned getting together. They agreed to wait until after Mr. B.F. was in bed because he tried to keep the pair apart in light of the non-association provision I have previously mentioned.
ii. August 4, 2014 – Mr. M.P.’s Apartment
[33] Ms. H. described a telephone call too. She said a text from Mr. B.F. preceded Mr. M.P.’s call to Ms. D.S.’s home number. She thought the time was in the range of 11:30 p.m. to 12:30 a.m. Ms. H. said she was asked to come to Mr. B.F.’s house as everyone was asleep. She decided to go over despite Ms. D.S. telling her that was unwise.
[34] Ms. H. was on foot. The two residences were not far apart. She said she walked over soon after the call.
[35] The door to the residence was unlocked. She went downstairs and proceeded toward the back of the apartment where Mr. M.P.’s bedroom was located. She dropped her purse in the living room.
[36] Mr. M.P. was lying on the bed that was located in the corner of the room. He was fully clothed. He was drunk, smoking a cigarette and watching television.
[37] Ms. H. said she sat down at the end of the bed. She said he was really angry and gave her the “cold shoulder”. He averted his head when she tried to give him a kiss. The conversation was largely one-sided.
[38] Ms. H. said she tried to make things better. She told Mr. M.P. she did not want to fight. He continued to ignore her even when she suggested they have sex. Eventually, Mr. M.P. ran out of cigarettes. Ms. H. told him she had some in the purse she had left in the living room. He asked her to get them. She refused.
[39] She said Mr. M.P. reacted violently. He kicked her in the side. She fell to the ground. He rose. She tried to but stumbled. As Mr. M.P. went to retrieve Ms. H’s purse, she was pushed to the floor, hitting her head on a small table.
[40] She said she was going to leave when he returned. Nonetheless, she reported that for a while things seemed a little better. Ms. H. gave Mr. M.P. a cigarette from her purse. She said he started being nice. He offered to share the marijuana he then started to smoke. She declined.
[41] She said Mr. M.P.’s mood soured when Ms. H. repeated her intention to leave.
[42] He mentioned her earlier offer of sex. As she started toward the door, Mr. M.P. grabbed her ponytail and pulled her onto the bed.
[43] She told him she was “done” and that she did not want to have sex. He warned her that a call to the police would be her last.
[44] He continued to pull on her hair. Her shorts and underwear were lowered forcibly. Ms. H. was on her left side. Her face was pushed into the wall. He told her that he wanted to engage in anal sex. She refused despite Mr. M.P.’s repeated expressions of interest.
[45] She said Mr. M.P.’s jeans were still on although unbuttoned and unzipped.
[46] Eventually Mr. M.P. stopped talking about anal sex. He told her they would have sex another way. Ms. H. told him again that she wanted no part of it.
[47] She said her face was pushed into the wall with even more force. Despite her loud and persistent protests and refusals, Mr. M.P. forced himself inside. He continued to pull on her hair with one hand. The fingertips of the other dug into her hip.
[48] She was too small and weak to push him off. After approximately twenty minutes he rolled off of her, lay on his back and fell asleep. She said she felt disgusting. She pulled herself together, grabbed her things and walked back to Ms. D.S.’s home. At one point Ms. H. estimated her time of arrival at 2 to 2:30 a.m. At another, the estimate changed to 3 a.m.
[49] She outlined her injuries. Ms. H. described bruising around her eye. She said all but a corner of her left eye was swollen shut. She described a little bruising on her left cheek and a hip.
[50] Mr. M.P. agreed with some of the testimony provided by Ms. H. His position, activity and state of dress at the time of Ms. H’s arrival was similar to what she described. He recollected Ms. H. being dressed in the manner she outlined. He agreed the complainant accurately explained the physical layout of his apartment and the bedroom within it.
[51] However, the rest of his version of events differed materially.
[52] He described Ms. H. as “more chipper” than he had anticipated.
[53] He recollected a discussion about cigarettes. He remembered Ms. H. saying she didn’t have any. He asked her to retrieve some from the freezer and she did despite initially refusing to do so. He said the first response caused him to push Ms. H. with his foot. She responded by banging his foot and swearing. He denied that she fell or hit her head.
[54] Mr. M.P. said they spoke about Shelby. He said that Ms. H. knew he was sorry. She teased him about the black and white television he was watching. He said they were lying together. His back was to the wall. She was on the outside of the bed.
[55] Intimacy started and progressed. Her shorts and his pants were down but not off. Approximately twenty minutes of consensual sexual intercourse followed.
[56] Mr. M.P. thought he was the one who caused the sexual activity to stop. There was no request that he do so. He said he had too much to drink. They showered together, then talked. He said Ms. H. left in the range of 3 to 4 a.m. He said he walked Ms. H. out. They hugged and kissed before Ms. H. went on her way.
iii. D.S.’s House – August 4, 2014
[57] At trial, Ms. H. said she used her key to gain entry to Ms. D.S.’s house. The sound of the door closing awakened Ms. D.S. The two sat on the couch together. There was very little conversation. Ms. H’s nose was bleeding. She was crying. An attempt to consume more alcohol angered her host.
[58] Ms. D.S. suggested Ms. H. wash up. Ms. H. said she showered until about 4 a.m. She remembered liberal use of body wash angering Ms. D.S. again.
[59] In re-examination, Ms. H. testified she did not remember telling Ms. D.S. she had been sexually assaulted.
[60] She reported returning to the couch to lie down. Stress related nosebleeds are common for her. Her nose bled during her sleep. Ms. H. remembered her daughter being frightened when she saw her mother in that state.
[61] Ms. H. testified that Mr. M.P. called at about 9:30 to 9:45 a.m. He asked Ms. H. to go to her mother’s to retrieve and return his clothes. She said she did so and took them to Mr. B.F.’s house.
[62] Mr. M.P. was in the garage when she arrived. He was standing close to and laughing with a girl with blonde hair she did not know. In cross-examination Ms. H. described Mr. M.P.’s interaction with the young woman as “too friendly”. She said she was very angry and disgusted and wondered aloud whether Mr. M.P. was talking to his new girlfriend.
[63] Mr. B.F. was nearby. He was screaming at Ms. H. to get off his property. Mr. M.P. approached her, ripped the bag containing his belongings out of her hand, told her he was “done” and reminded her a call to the police would have dire consequences.
[64] She returned to Ms. D.S.’s house. Ms. H. starting drinking. She asked Ms. D.S. to call her mother. She did so. Her mother arrived. They spoke outside. The sunglasses Ms. H. was wearing were removed. The conversation turned to the marks on her face. Ms. H. said she told her mother she had been sexually assaulted. A call seeking assistance from the police and an ambulance was made.
[65] Ms. D.S.’s version was different. After going to bed she did not remember seeing Ms. H. again until about 6:30 or 7 a.m. that morning after being told by Ms. H’s daughter M that her mother was hurt and crying.
[66] Ms. D.S. said she found Ms. H. curled up on the couch in the state Ms. H’s young daughter had described. Ms. H. was shaking. She didn’t want to speak. Blood was coming out of Ms. H’s ear. Her lip was split open. Blood running from her nose had dried. Bruises were seen underneath one eye and on her legs and arms. Ms. D.S. said there was a goose egg on the back of Ms. H’s head.
[67] Ms. D.S. remembered telling her friend to get cleaned up and to come outside and tell her what happened.
[68] She said Ms. H. used a cloth to wipe up the blood. She did not shower.
[69] Afterward, Ms. H. and Ms. D.S. had a conversation outside while smoking a cigarette. Ms. D.S. asked for permission to call the police. Ms. H. asked her to call her mother instead.
[70] Instructions to call the police were given after Ms. H’s mother arrived and saw and spoke to her daughter. Ms. H’s mother was not a witness at trial.
[71] Mr. M.P. said he got up at around 9 a.m. on August 4. He denied speaking with Ms. H. by telephone that day. Ms. H. had offered to wash and deliver his clothes the day before.
[72] He was talking with Mr. B.F. and his niece A. when Ms. H. arrived. She was angry and accusatory and soon left. Mr. M.P. said he wanted to follow her but Mr. B.F. told him not to do so because of the non-association condition of his probation order.
[73] He said officers arrived an hour or so later and placed him under arrest.
C. Analysis and Decision
[74] I have already mentioned W.D. If I accept Mr. M.P.’s account of what transpired during the early morning hours of August 4, 2014, I must acquit him because I will have concluded that Ms. H. consented to sexual intercourse.
[75] At trial Mr. M.P. described the crucial time period very differently than Ms. H. The Crown objected during the course of his testimony on the basis that the defence had ignored the rule in Browne v. Dunn (1893), 6 R. 87 (H.L. (Eng.)).
[76] The principles established by that case have endured and were well summarized in R. v. Quansah, 2015 ONCA 237 at paras. 75 – 76 and 80 - 82 (“Quansah”). In part Watt J.A. wrote:
[75] In Browne v. Dunn, Lord Herschell, L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: Browne v. Dunn, pp. 70-71; R. v. Henderson (1999), 134 C.C.C. (3d) 131 (Ont. C.A.), at p. 141; and R. v. McNeill (2000), 144 C.C.C. (3d) 551 (Ont. C.A.), at para. 44.
[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues…
The rule is rooted in…considerations of fairness…
[80] As a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case: R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 124, at paras. 21-22; R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 211, at para. 42.
[81] Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at pp. 375-376; Paris, at para. 22; and Browne v. Dunn, at pp. 70-71.
[82] In some cases, it may be apparent from the tenor of counsel’s cross-examination of a witness that the cross-examining party does not accept the witness’s version of events. Where the confrontation is general, known to the witness and the witness’s view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.
[77] Mr. S… acknowledged breaching the rule. Mr. M.P.’s version of events was not put to her. Mr. M.P. mentioned cigarettes in the freezer, being teased about the black and white television he was watching, some quiet conversation, a different body position, “making out” and the undoing of a large belt in the build up to the act that followed. A shared and lengthy shower and an affectionate and attentive parting was said to have followed. None of that was presented to the complainant for comment during cross-examination.
[78] The issue is the impact of the breach of the rule. At para. 89 of Quansah, Watt J.A. said:
…it is too easily overlooked that the rule in Browne v. Dunn is not some ossified, inflexible rule of universal and unremitting application that condemns a cross-examiner who defaults to an evidentiary abyss. The rule is grounded in fairness, its application confined to matters of substance and very much dependent on the circumstances of the case being tried…
[79] At para. 121, Watt J.A. added:
… the failure has relevance for the credibility of the witness who was not confronted with the contradictory evidence, as well as the credibility of the witness who gave the contradictory evidence…
[80] Mr. M.P.’s evidence is problematic independent of Browne v. Dunn. As mentioned, he was interviewed by Detective Weaver on September 22, 2014 (Reg. Ex. D1 and D2). Voluntariness was conceded.
[81] Mr. M.P. said he didn’t remember the interview. He said he was shell shocked at the time. He went so far as to suggest he had a total blackout for several days. That testimony was not believable. Weeks had passed since his August 4, 2014 arrest. The videotaped interview was shown at trial. Mr. M.P.’s presentation was not as he portrayed.
[82] Many of the answers given then and at trial were inconsistent. A few examples will suffice.
[83] As mentioned, at trial Mr. M.P. readily acknowledged intervening in the dispute involving Mr. B.F.’s niece and her boyfriend. He denied doing so when interviewed. While he offered an explanation for the answer given at that time, he admitted he lied to Detective Weaver.
[84] Mr. M.P. admitted he lied again when he told the officer he did not have any telephone or in-person contact with Ms. H. at the material times.
[85] Mr. M.P. admitted lying for a third time when he denied seeing Ms. H. after getting out of bed on August 4, 2016.
[86] The untruths are serious. Their nature and number signal caution when assessing the honesty and accuracy of anything Mr. M.P. says. Mr. M.P.’s misstatements cannot be attributed to a desire to hide the fact he had breached the terms of his probation order. He had been found guilty of that charge and sentenced on September 15, 2014.
[87] There is more. Photographs of Ms. H’s face were taken by a member of the LPS on August 5, 2014 (Ex. 1). Bruising on the left side of Ms. H’s face was clearly visible. However, according to Mr. M.P. he was the recipient, not the deliverer, of one or more blows when approaching Ms. D.S.’s residence. He said there was no physical confrontation of any kind thereafter. That version of events simply cannot be so.
[88] Mr. M.P.’s evidence at trial was internally inconsistent too. His description of a once fighting, then loving couple did not ring true. He seemed to have forgotten that he had told the court earlier that he had tried to break up with Ms. H. many times before and was looking for a way out of the relationship.
[89] I did not accept Mr. M.P.’s version of events.
[90] However, the testimony offered by the witnesses called by the Crown bears close examination too.
[91] As mentioned, Ms. H. was interviewed by members of the LPS on August 4 (the “initial interview”) and September 18, 2014 (the “second interview”). She also testified at the November 16, 2015 preliminary hearing.
[92] Several inconsistencies were identified. I will mention a few of them.
[93] First, the description of the initial confrontation differed. During the first interview Ms. H. said the altercation lasted ninety minutes and that Mr. M.P. grabbed her by the neck and hair and then punched her in the mouth. She told the interviewer Mr. M.P. demanded she pick up her belongings from his apartment as he rode away.
[94] In the second interview, she said there was a twenty-five minute fist fight. When that was brought to her attention, Ms. H. said she was punched repeatedly and that her friends, including Ms. D.S., simply watched while they continued drinking.
[95] Second, the circumstances that resulted in Ms. H’s early morning visit to Mr. M.P.’s apartment changed. A telephone call was mentioned during the second interview, the preliminary hearing and at trial. During the early stages of the initial interview Ms. H. appeared to be referring to a telephone call when she said Mr. M.P. “called me over to his house at 2:30 in the morning”.
[96] However, later on that impression changed. Toward the end of the initial interview Ms. H. said she had gone to Mr. M.P.’s apartment at 12:10 a.m. on August 4, 2014 to pick up her “stuff”. She told Constable Vanderidder her attendance caused Mr. B.F. to say he was going to call the police. Before she left, Mr. M.P. told her to return at 2 a.m. She complied. Ms. H. did not mention an early morning telephone conversation at all.
[97] An earlier visit was not mentioned by Ms. H. at trial. In cross-examination she said she had no memory of it even after the relevant portions of the transcript of the initial interview were read to her.
[98] At trial the Crown and defence agreed I could find as a fact that Officer Adam Gautreau of the LPS responded to a call at 11:59 p.m. on August 3, 2014 and spoke with Mr. B.F. and Mr. M.P. at the H […] Road residence. That agreed upon attendance was close to the time of the first visit Ms. H. mentioned during the initial interview.
[99] Third, the details of the visit that resulted in the charge Mr. M.P. now faces changed in important respects.
[100] I start with the initial interview. Ms. H. did not mention offering to have sex with Mr. M.P. at any time. At trial she said she had not done so because she was afraid of Mr. M.P. That explanation puzzled me given the other allegations Ms. H. did make at that time.
[101] Ms. H. told the first police officer that Mr. M.P. went to the garage during her visit. She decided to leave. She alleged she was at the top of the stairs when Mr. M.P. kicked her in the rear with a steel-toed boot he was wearing. None of that was mentioned on any other occasion. Ms. H. said she had no recollection of those events occurring when cross-examined at trial.
[102] During the initial interview, Ms. H. said she apologized to Mr. M.P. for her conduct earlier that evening and that he did the same. Mr. M.P. expressed his love for her. That led to his request for sex. She explained what happened next in these words:
…I told him he didn’t deserve it and he started getting pissed off and I gave in after because I just didn’t want to get hit no more, and then he tried to force me, tried it didn’t work, he tried to force me to do anal, but it wasn’t happening. He grabbed me by my hair, and I kneed him and I got up and left. What he said what no goodbye, no kiss, no nothing, and I quickly went over and kissed him on the cheek and I went back to D.S.’s…
[103] I pause here to note that according to this version sexual intercourse preceded the forced attempt at anal sex.
[104] Toward the end of that interview that order was reversed when Ms. H. added:
… he told me to come back and sit down, because I was in the way of his T.V. and um, he said well I’m drunk, I’m horny, we are having sex, it will make the situation a whole lot better, and he grabbed me by my hair and actually tried to force anal on me and I said it wasn’t happening, and then he grabbed my hair and pushed my face up against the wall, and I cried and I told him to stop. I said no it’s not happening and then we had sex. I got to the point where I kicked him off and I left.
[105] Despite having those passages read to her during cross-examination at trial, Ms. H. told Mr. M.P.’s lawyer several times that she said nothing about a sexual assault during the initial interview.
[106] Detective Weaver sought additional details when he interviewed Ms. H. Ms. H. said an early morning telephone call included a warning Mr. M.P. would return to Ms. D.S.’s residence if she failed to show up at Mr. M.P.’s apartment. That was not mentioned at any other time.
[107] Twice Ms. H. told Detective Weaver that Mr. M.P. had taken her shorts and underwear “off”. In cross-examination, Ms. H. said that meant “down”. With respect, those words are not synonymous. In isolation that inconsistency is a small one. However, there is more.
[108] Detective Weaver learned that Mr. M.P. made an unsuccessful physical attempt to engage in anal sex. Ms. H. said she was able to stop him with an elbow when she got one arm free. None of that was mentioned during the preliminary hearing or at trial.
[109] The transcript of Ms. H’s examination by the Crown at the preliminary hearing includes this exchange on the subject:
Q. …What is it that he did that you knew he wanted to do anal? A. Kept whispering in my ear asking me to do it. Q. And when he was whispering in your ear, did you respond to him? A. No, I just kept tellin’ him, no. Well yes, I did respond. I said no. Q. Okay. Was there anything he did physically with regard to the anal sex? A. No. Q. Okay. A. He respected that wish.
[110] When asked about the inconsistency during cross-examination, Ms. H. adopted the statement made during the second interview with Detective Weaver. She attributed the difference to counselling and to a desire to forget in order to cope with the trauma she had endured.
[111] During the preliminary hearing Ms. H. told the Crown she had taken a shower at Mr. M.P.’s apartment soon after her arrival. At trial Ms. H. was certain that she remained in Mr. M.P.’s bedroom from the moment of her arrival until she left the apartment for good. She specifically denied entering the bathroom. Once this portion of the transcript was brought to her attention, Ms. H. said she didn’t recall the shower. She said it was one of the things she did not want to remember.
[112] At the preliminary inquiry Ms. H. told the Crown that Mr. M.P. had eventually kicked off his pants. As mentioned, at trial Ms. H. was adamant they had only been unbuttoned and unzipped.
[113] Fourth, Ms. H. the description of events following her return to Ms. D.S.’s apartment varied. During the preliminary inquiry Ms. H. said her first interaction with Ms. D.S. occurred at about 8:30 a.m. There was no mention of a banging door, a waking Ms. D.S., an initial discussion or a shower. In cross-examination at trial Ms. H. said she had simply neglected to mention them.
[114] Ms. D.S. presented different versions of events too.
[115] As mentioned, she was interviewed on August 4, 2014. Ms. D.S. explained what happened after Ms. H. left her residence in the early morning hours of August 4, 2014. Ms. D.S. said:
And then she had gone over there to talk to him, to see what had happened and he told her that he loves her and that they are going to work things out. Then he called this morning asking for his stuff, so she had gone over and taken it to him and he turned around and said what the f--- are you doing here? I am going to call the police. Then she came back here and she called her mom and then we called you.
[116] I have already summarized Ms. D.S.’s trial evidence. During direct examination she said Ms. H. told her about the sexual assault the morning of August 4, 2014. That was hours before Constable Downes interviewed Ms. D.S.
[117] Ms. D.S. was referred to the transcript of the August 4, 2014 interview when cross-examined at trial. Initially, Ms. D.S. agreed that Ms. H. did not tell her about a sexual assault until a later date.
[118] On September 25, 2014, another officer interviewed Ms. D.S. She told Detective Halliday what she had heard about Ms. H’s early morning visit to Mr. M.P.’s apartment. Ms. D.S. said that Ms. H. refused Mr. M.P.’s request for sex. He then cornered Ms. H. and pressed her face into the wall. A pregnant Ms. H. was kicked with steel toed boots when she tried to get away causing her to fall and hit her head.
[119] When asked about that statement Ms. D.S. disagreed with the suggestion she obtained that information from Ms. H. after Constable Downes conducted the August 4, 2014 interview. Ms. D.S. maintained she knew those facts beforehand. She said they were unmentioned because she did not think hearsay was relevant to her interviewer. She maintained that position even after Mr. M.P.’s lawyer pointed out that the portion of the August 4, 2014 statement I have reproduced in these reasons is a product of what Ms. H. had told her.
[120] When pressed further, Ms. D.S. said there were some things she too wanted to forget because of a previous experience involving her mother.
[121] Where do the inconsistencies in the accounts of the Crown witnesses leave me? Not surprisingly I am troubled by the number and nature of the inconsistencies in the evidence of Ms. H. I am concerned that Ms. D.S. tailored her evidence to support a long-time and very close friend.
[122] Mr. M.P.’s counsel maintains that a conviction would be unsafe given the evidence adduced at trial. He submits the Crown has not met the high standard of proof required even if Mr. M.P.’s testimony did not leave the court with a reasonable doubt.
[123] The Crown disagrees. The Crown maintains that the one constant in Ms. H’s accounts was non-consensual sexual intercourse. That is, indeed, so.
[124] I also agree with the Crown that inconsistencies are bound to be revealed during the course of retelling multiple events four times. Inconsistent evidence does not warrant an immediate finding a witness has lied or is unreliable. On the other hand, consistent testimony does not lead to an automatic conclusion it is truthful and accurate. A lie is still a lie and a truth continues to be a truth no matter how many times told.
[125] I have not forgotten that Ms. H. was drinking steadily or even heavily. I have not ignored the fact she has been receiving counselling. I do not doubt the genuineness of the raw emotions she displayed, nor the sincerity of her wish to forget the memory of a relationship which was clearly and deeply flawed.
[126] However, the versions of events told by Ms. H. varied in many and significant respects. Differences were not confined to trivial details. Every inconsistency I have mentioned related to a significant event. Counselling and a mind being trained to expel or rewrite traumatic events seems an inadequate explanation for them.
[127] The changes in testimony did not follow a clear pattern. Sometimes an event was added. Examples include the initial and then revoked offer of sex mentioned during and after the second interview and the shower Ms. H. said she took at Mr. M.P.’s apartment when testifying at the preliminary hearing.
[128] Sometimes an event was unmentioned. The 12:10 a.m. visit to retrieve belongings was not disclosed after the initial interview. Being kicked at the top of the stairs with a steel toed boot was replaced with a kick, a push and falls in the bedroom as a result of an unfulfilled demand that Ms. H. retrieve cigarettes for Mr. M.P.
[129] In fairness, it is not as if the seriousness of the allegations always increased with time. Assertions made during the initial and second interviews of forced anal sex were reduced to a whispered but unpursued desire by the preliminary hearing.
[130] Sexual intercourse took place on August 4, 2014. That is undisputed. The issue is whether Ms. H. agreed to participate. Consent must be freely given. Submission is not consent whether coerced by words or actions.
[131] I have wrestled with all that I have written. The totality of the conflicting evidence leaves me uncertain about this crucial issue. Despite the violent confrontation that occurred hours earlier, Ms. H. may have agreed to participate in sexual intercourse. An uneasy relationship may have been momentarily salvaged. The sight of Mr. M.P. and A. in friendly conversation later that morning may have been the irreversible breaking point.
[132] On the other hand, consent may not have been forthcoming and the return of Mr. M.P.’s clothing the final step in unwinding a relationship that had grown rotten to the core.
[133] A finding of guilt cannot be made unless the evidence that I do accept proves beyond a reasonable doubt that Ms. H. did not consent to have sexual intercourse with Mr. M.P. I must be sure.
[134] Simply put, the Crown’s case has not met that standard. The totality of the conflicting evidence leaves me uncertain about the critical element of the offence that is in issue. I have a reasonable doubt whether Ms. H. consented to sexual intercourse on August 4, 2014. In law, Mr. M.P. is entitled to its benefit.
[135] For the reasons given, the charge is dismissed.
“Justice A. D. Grace” Justice A. D. Grace
Delivered orally: October 28, 2016
COURT FILE NO.: 166/15 DATE: 2016/10/28 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – M.P. REASONS FOR JUDGMENT Grace J. Released: October 28, 2016 (Orally)