CITATION: R. v. H.B., 2016 ONSC 594
COURT FILE NO.: CR-15-741-00
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Erin Norman, for the Crown
- and -
H.B.
Bo Arfai, for the Accused
HEARD: January 18-22, 2016
REASONS FOR JUDGMENT
Justice Conlan
Introduction
[1] Mr. H.B. and Ms. J.H. started as the handyman and the customer, respectively. They ended with J.H. accusing H.B. of having raped her.
[2] J.H. hired H.B. to do some handyman work at her home in Mississauga. She did not know the accused but was referred to him. Very quickly, the two started a sexual relationship that lasted several months until late October 2013. J.H. was divorced at the time, with three daughters. H.B. was married.
[3] In the early morning hours of October 26, 2013, J.H. and H.B. had sex in the accused’s truck. It began with consensual vaginal intercourse. According to the complainant, it became anal intercourse, without her consent. She was crying. She was screaming at the top of her lungs. She was physically resisting. She scratched the face of the accused, twice. She was repeatedly saying “stop”. She did not want to have anal sex. It was a brutal assault.
[4] According to H.B., all of the sexual activity in the truck, including the anal intercourse, was consensual. J.H. did not physically resist. She did not scream, although that became less clear in cross-examination of the accused. She did not cry. She was not in pain, although, again, that became less clear in cross-examination. She did not scratch his face.
[5] On October 27, 2013, the accused repeatedly communicated with J.H., by telephone voicemail messages and text messages. According to the complainant, that communication was unwanted and made her fear for her safety. The accused admits that he repeatedly communicated with J.H. on the date in question, however, he says that the communication was reciprocal and not intended to be anything negative. On whether the communication was reciprocal, the evidence of the accused changed in cross-examination.
[6] H.B. stands charged with two criminal offences: sexual assault and criminal harassment. He was tried before me, without a jury, in the Superior Court of Justice at Brampton over five days during the week commencing January 18, 2016.
[7] The accused pleaded not guilty to every charge.
The Basic Legal Principles and the Offences
[8] The burden of proof is on the Crown. The standard of proof is beyond a reasonable doubt. That standard of proof applies to each and every essential element of each offence. There is no burden of proof on the accused. He is presumed to be innocent of both charges.
[9] The accused testified at trial. He denied the sexual assault on the basis that the activity, including the anal intercourse, was consensual. He denied the criminal harassment on the basis that, although he sent numerous messages to the complainant on the date in question, there was nothing criminal about his intent (my words).
[10] If I accept the evidence of H.B., then I must find him not guilty. If I do not necessarily accept his evidence but find that it leaves me with a reasonable doubt, then I must acquit him. Even if I completely reject the evidence of the accused and find that it does not leave me with a reasonable doubt, I must acquit him unless the evidence as a whole at trial that I do accept convinces me of his guilt beyond a reasonable doubt.
[11] Proof beyond a reasonable doubt is a standard higher than on balance. Probable or likely guilt is not enough. Proof of guilt to an absolute certainty, however, is too high of a standard to apply. In the end, I must be sure of H.B.’s guilt.
[12] In terms of the testimonial evidence at trial, I may accept some, none or all of what a witness said. I must also consider the exhibits, which documents include two statements of agreed facts.
[13] On the sexual assault charge under section 271 of the Criminal Code, the Crown must prove each of these four essential elements beyond a reasonable doubt, otherwise, I must find the accused not guilty: (i) that H.B. intentionally touched J.H.; (ii) that she did not consent to that; (iii) that the accused knew that she did not consent; and (iv) that the force applied took place in circumstances of a sexual nature.
[14] This case turns on the issue of consent.
[15] On the criminal harassment offence under subsection 264(2)(b) of the Criminal Code, the Crown must prove each of these six essential elements beyond a reasonable doubt, otherwise, I must find the accused not guilty: (i) that H.B. repeatedly communicated with J.H.; (ii) that the accused had no lawful authority to do what he did; (iii) that his conduct harassed her; (iv) that he knew that his conduct harassed her; (v) that his conduct caused her to fear for her safety; and (vi) that her fear was reasonable in the circumstances.
[16] This case turns on two points: (i) whether J.H.’s fear was reasonable in the circumstances, and (ii) whether H.B. knew that his conduct harassed J.H.
The Evidence at Trial
[17] The Crown called two witnesses at trial: J.H. and a biologist from the Centre of Forensic Sciences (“CFS”).
[18] The Defence called one witness: the accused.
[19] Regarding the penultimate sexual encounter between the parties, the evidence of J.H. was simple. She testified that she consented to the vaginal intercourse but not to the anal sex that followed. When she received the numerous unwanted text messages from the accused later, especially those that referred to “Rambo” and him coming over to her house, she was terrified.
[20] The biologist’s evidence was, essentially, that there was no male DNA detected in the fingernail scrapings and rectal swab samples that were taken from J.H. at the hospital in the early morning hours of October 28, 2013. On consent of the Defence, Ms. Matte of the CFS was accepted by the Court as a properly qualified expert entitled to give opinion evidence in the field of DNA.
[21] The accused’s testimony was equally simple. According to him, all of the sexual activity in the truck, including the anal intercourse, was consensual. They first had vaginal intercourse. He later inserted his penis in to her anus. She said “stop”. He stopped and waited a few seconds. He then continued to insert his penis in to her anus. She said “stop”. He stopped and waited a few seconds. He then felt her buttocks grind against his crotch. At that time, he fully inserted his penis in to her anus and commenced intercourse, with her consent and active participation and without any hint that she was not consenting (no crying, no physical resistance and no scratching). With regard to the criminal harassment, according to H.B., his repeated communication with the complainant on October 27, 2013 was not intended to harass J.H. – it was meant as a joke.
[22] I pause here to comment on a submission made by the Crown in closing arguments. I agree that the Defence violated the rule in Browne v. Dunn in some instances, such as whether J.H. ever threatened to contact the police and/or the accused’s wife – those assertions, although testified to by the accused, were never put to the complainant. I disagree, however, that the testimony of the accused about J.H. relaxing her body and grinding her buttocks against his crotch, evidence which is relevant on the issue of consent regarding the anal sex, violated the said rule. It did not. I have indeed considered that evidence of the accused, and I do not see any reason to give myself a special instruction about that evidence.
[23] First, the Defence cross-examined the complainant at length about the sexual activity in the truck and whether she consented to it, in any way. Second, the testimony of the accused at trial was not a surprise to anyone as it was largely contained in his two affidavits filed with the Court in support of his section 276 Application. Although it is true that those affidavits do not specifically refer to the “grinding”, they do speak about the complainant’s alleged consent, by action, to the anal sex on the morning in question. And they do specifically speak about the accused waiting for J.H.’s body to relax before fully inserting his penis into her anus.
[24] Compliance with the rule in Browne v. Dunn does not require that the Defence put every scrap of anticipated evidence of the accused to the complainant in cross-examination. It is the substance of the anticipated evidence that must be fairly put to the complainant. The rule is not an inflexible one. It is designed to ensure that the trial is conducted fairly. R. v. Quansah, 2015 ONCA 237 (Court of Appeal for Ontario), at paragraph 81.
[25] The substance of the accused’s evidence was indeed put to the complainant. Her evidence was clear that she did not consent to the anal sex, including the initial penetration, in any manner whatsoever.
Analysis
The Lack of Corroboration on the Sexual Assault Charge
[26] I find that J.H.’s allegations regarding the forced anal intercourse are not corroborated by any other evidence at trial. Corroboration, of course, is not required. The lack of corroboration, however, may be taken in to consideration in terms of the overall assessment of whether the sexual assault charge has been proven beyond a reasonable doubt.
The Evidence of the Complainant
[27] There is no question that J.H. has made some very poor choices with regard to her relationship with the accused. She remained involved with him despite knowing that her daughters did not like him. She continued to see him and have sexual relations with him even after, according to J.H., he had made inappropriate comments to her children, and even after, according to J.H., he bit her one daughter’s leg, and even after, according to the complainant, he tried to run her off the road (or at least she highly suspected it was him), and even after, according to the complainant, he physically threatened to assault the complainant’s oldest daughter, and even after, according to J.H., he made a very disturbing gesture of pretending to slice the throat of that same daughter with his hand.
[28] Those observations give me serious concern about the judgment of J.H. Having said that, the complainant’s poor choices are not fatal to me believing her evidence that she did not consent to the anal sex on the date in question.
[29] I was struck by the relatively flat and unemotional demeanour of the complainant throughout her testimony, including her account of what transpired in the accused’s truck on the alleged offence date. Again, however, I must be careful to not place much weight on demeanour. Perhaps J.H. was simply trying to get through her evidence, embarrassing enough for her already, without the added component of seeming to be an emotional wreck.
[30] In direct examination, there was something more important than the two issues noted above that, in my view, undermines the credibility of the complainant. That relates to her stubborn unwillingness in examination-in-chief to state the obvious: she stayed with the accused despite all of his warts and notwithstanding the acrimony between him and J.H.’s daughters for one reason and one reason only – she enjoyed the sex. There is no other possible explanation for why she continued to see H.B., yet time and time again in direct examination, when asked by the Crown why she stayed with the accused, J.H. was not forthcoming.
[31] Further, I am concerned about what I perceive to be J.H.’s tendency to exaggerate her evidence. For example, in direct examination, she testified that the anal sex lasted for about ten minutes, with her screaming at the top of her lungs the entire time and during which she scratched the face of the accused, twice, as hard as she possibly could. I find it difficult to believe that someone could scream, full tilt, for ten minutes and then sit with H.B. in the truck before and while he drove her home. I also find it difficult to believe that someone could forcefully scratch another’s face, twice, and yet the police who observed H.B. at length when he was arrested not long afterwards noted not a mark on his face or any injuries at all.
[32] As another example, in cross-examination, the complainant painted a picture of her very first encounter with the accused that was much more sinister than what she had testified to in direct examination at trial. Although she had indicated in her examination-in-chief that H.B. was “pushy” and flirtatious with her on that first meeting, trying to kiss and touch her, in cross-examination J.H. elevated that to an allegation that the accused forcefully put his hand down her pants and fondled her sexually without her consent. I could not help but think at the time that the complainant was engaging in some hyperbole. The Crown argues that the perceived embellishment can be explained by the fact that the Crown did not specifically ask J.H. about sexual activity during the first encounter. I do not find that submission to be persuasive. The complainant chose to speak about the accused’s sexual advances during that first encounter at her home. Those alleged advances, in cross-examination, suddenly became brazen, much more serious and, unquestionably, criminal in nature.
[33] As yet another example, near the very end of her cross-examination, J.H. suddenly blurted out that she considered what was done to her by the accused as being a “hate crime”. Respectfully, without in any way minimizing the very serious nature of K.H.’s allegations, it seemed to me at the time that the said comment was an exaggeration.
[34] On another issue entirely, I have some concern about the reliability of J.H.’s evidence generally. Her evidence was, at times, replete with lengthy pauses and vague expressions like “more or less” and “not exactly”. That is a more minor point, but the observation is worth noting.
The Evidence of the Accused and the W.(D.) Analysis
[35] Turning to the evidence of the accused, in a thorough and effective cross-examination by Ms. Norman, numerous weaknesses came to light in the evidence of H.B.
[36] The evidence of the accused was inconsistent in many ways, including the following: (i) as between his trial testimony and what he told the police in his statement upon arrest, on the details of his first encounter with the complainant at her home; (ii) as between his police statement and his trial testimony, on whether he was invited over to the home of J.H. on October 25, 2013; (iii) as between his police statement and his trial testimony, on whether he could see someone through the glass door of the home on October 25, 2013; (iv) as between his trial testimony and (a) his affidavit filed in the Ontario Court of Justice and (b) his police statement, on why the complainant did not want him to bump into the pet store employee at the complainant’s house on October 25, 2013; (v) as between his trial testimony and his police statement, on whether he actually left the immediate area of J.H.’s house after the commotion occurred on October 25, 2013; (vi) as between his trial testimony and his police statement, on why J.H. would sometimes threaten to contact the accused’s wife; (vii) as between his trial testimony and his police statement, on why the complainant would sometimes threaten to call the police; (viii) on the precise timeline of the early morning hours of October 26, 2013; (ix) as between his direct examination and his cross-examination at trial, on whether J.H. said “stop” twice or three times during the anal penetration on October 26, 2013; (x) as between his police statement and his trial testimony, on whether J.H. was ever screaming during the sexual activity in the truck on October 26, 2013; (xi) as between his trial testimony and his affidavit filed in the Superior Court of Justice, on whether they ever had sex while the complainant was menstruating; (xii) as between his police statement and his trial testimony, on whether he had ever used the word “Rambo” before with the complainant; and (xiii) during cross-examination, on whether the two conversed in the truck during the sexual activity on the morning in question.
[37] On the critical issue of whether the anal sex on October 26, 2013 was consensual, however, the accused was unshaken in cross-examination. He maintained throughout his evidence at trial that it was entirely consensual.
[38] These types of cases are difficult for the prosecution, even for a very competent Crown like Ms. Norman. J.H. was adamant that she did not consent to the anal intercourse in the truck on the date in question. Her evidence generally suffers from some frailties, mentioned above, but she was not materially inconsistent on the specifics of what happened in the truck. On the other hand, H.B. was equally adamant that the anal sex was consensual. His evidence, similarly, includes weaknesses, as noted above, but, like the complainant, the accused was not materially inconsistent on the specifics of what happened in the truck, with two exceptions.
[39] The first exception is whether the complainant said “stop” twice or three times while anal penetration occurred. The second is whether J.H. was ever screaming throughout the sexual encounter in the truck on the morning in question.
[40] Principally as a result of those two items, but also keeping in mind the other inconsistencies noted above, I am unable to find that the accused was a sufficiently credible and reliable witness such that I can say that I believe his evidence that the anal sex was consensual.
[41] At the same time, however, I am unable to completely reject the evidence of H.B. in terms of what happened in the truck that morning. On the most troublesome matter of the accused’s inconsistent evidence as to whether the complainant was ever screaming, having considered carefully the context of the question and answer during the police statement and having also considered the accused’s explanation in cross-examination when confronted with the inconsistency, I think that it would be unsafe to conclude that the accused acknowledges that J.H. was screaming, with a negative connotation, during the anal penetration and/or intercourse.
[42] In the end, I find myself unable to determine whether the anal sex was consensual or not. I find that the two versions of what happened in the truck are equally plausible. I am just not sure who is telling the truth.
[43] Thus, on the second branch of what is commonly referred to as the W.(D.) analysis, I must find the accused not guilty of sexual assault. His evidence leaves me with a reasonable doubt on the issue of consent.
Addressing the Submissions of Counsel on the Sexual Assault Charge
[44] A few final remarks, before turning to the criminal harassment charge. These comments are to address some of the specific arguments put forward by counsel.
[45] First, I disagree with the Crown that the text messages from the accused to the complainant are corroborative of the rape allegation. It might be that a message like “U still piss?” implies that H.B. knew that J.H. was angry at him for raping her, but it is just as likely that the said message was simply a reflection of the accused’s knowledge that the complainant was mad because she had messaged him to say that the relationship was over and because she was not replying to his earlier texts.
[46] Second, I disagree with the Crown that there were several aspects to the evidence of the accused that are simply implausible. There was one: whether J.H. became incontinent in the truck after the anal sex on the morning in question. It defies common sense that H.B. would not remember whether she did or not. That is one piece of the puzzle as to why I do not necessarily believe the evidence of the accused.
[47] Third, I disagree with the Crown that the accused’s admission in cross-examination at trial that the complainant never said “go” or “continue” or something like that after saying “stop” during the anal penetration on October 26, 2013, in and of itself, constitutes a sexual assault. That is not the way that the case was advanced at trial and certainly not the way that the section 276 Defence pretrial Application was argued. Until relatively late in the cross-examination of the accused, I did not anticipate, nor do I think that the Defence did, that it would be argued by the prosecution that the accused had sexually assaulted J.H. by inserting his penis in to her anus even if the Court does not find that the ensuing anal intercourse was non-consensual. Besides, my reasonable doubt as to whether the anal sex was consensual applies to the entire encounter, from initial penetration of the anus until the end of the anal intercourse.
[48] Put another way, I do not agree with the submission by the Crown that the accused ought to be found guilty of sexual assault even on his own evidence because he took no reasonable steps to ascertain that the complainant was consenting to the anal intercourse. On his evidence, which I do not necessarily accept but which leaves me with a reasonable doubt on the issue of consent, he did take those steps. He stopped twice when she said to do so during penetration. He waited twice. He continued only when he felt her body relax, and he inserted his penis fully into her anus only after he felt that her body was relaxed and after he felt her buttocks grind against his crotch area.
[49] Fourth, in acquitting the accused on the sexual assault charge, I place no reliance on the Defence argument that J.H. had some motive to fabricate. I think that the said argument has no merit. It is unlikely that J.H. was all that upset about the unfinished work around the home. There is no reliable evidence that the accused caused her to lose a tangible business opportunity with the pet store employee. The loss of the complainant’s very close friend had already occurred long before the rape allegation was made. And I find it illogical that someone would fabricate such a serious allegation simply as a way to end a relationship.
[50] Fifth, I do not place the same degree of emphasis on the CFS evidence as the Defence does. I see it as relatively neutral. It certainly does nothing to support the complainant’s allegation of having scratched the face of the accused. Given the passage of time and the hand washing, however, I think it is a stretch to treat the evidence of Ms. Matte as necessarily undermining that of J.H. The statement of agreed facts regarding the lack of injuries to the accused’s face upon arrest is more damning to the Crown’s case than is the CFS evidence. Common sense would say that it is highly improbable that one could scratch the bare face of someone else as hard as one possibly can, twice, with nails, and not leave an observable mark a short time (two days) later.
[51] Sixth, nor do I accept the argument by the Defence that the inconsistencies in J.H.’s evidence, such as whether she gave the accused driving directions on the morning in question and whether she or the accused reclined her seat in the truck after they parked, are important. Those are relatively minor and immaterial matters.
[52] Seventh and finally, I do not agree with the Defence that J.H.’s account of what happened in the truck ought to be rejected because someone would have heard her screaming. I do not know that. I would rather not speculate. The more important concern about the complainant’s screaming evidence is noted above – I simply find it unrealistic that J.H. screamed at the top of her lungs for ten whole minutes, uninterrupted.
Criminal Harassment
[53] On the criminal harassment charge, I have no reasonable doubt. Regardless of whether the sexual activity in the truck was consensual or not, and without having to depend entirely on the evidence of J.H., it is crystal clear that the accused (i) repeatedly communicated with J.H. (H.B. admitted in his trial testimony that the texts contained in Exhibit 3 were sent by him to the complainant); (ii) that the accused had no lawful authority to do what he did; (iii) that his conduct harassed her (I accept the evidence of J.H. that the messages were unwanted, and I note that the accused admitted in his trial testimony that the texts from him to her were precipitated by her message to him which ended the relationship); (iv) that he knew that his conduct harassed her (I reject the trial evidence of the accused that his messages were meant only as a joke); (v) that his conduct caused her to fear for her safety (I accept the evidence of the complainant in that regard); and (vi) that her fear was reasonable in the circumstances.
[54] It makes no common sense that the accused sent the text messages in question as a joke. That simply does not jive with two important admissions that H.B. made in cross-examination at trial. First, he admitted that the texts from him to her as contained in Exhibit 3 were precipitated by her message to him that the relationship was over, something that he did not want. Second, he admitted that J.H. did not respond to any of his texts as contained in Exhibit 3. In those circumstances, there can only be one reasonable conclusion: the repeated text messages were intended to harass the complainant.
[55] As to why I have found that the complainant’s fear was a reasonable one, I have turned my mind to whether that depends on a finding that the anal sex was not consensual. It does not. Even if it was consensual, I find the following facts: (i) that the complainant subsequently messaged the accused to say that the relationship was over; (ii) that the complainant knew that the accused would not be happy to hear that; (iii) that what followed was a flurry of unwanted and unanswered messages from H.B. to J.H.; (iv) that the said messages included a threatening remark that the accused may go “Rambo” on the complainant (which comment I find, contrary to the evidence of the accused, had nothing to do with future sex between them); and (v) that the said messages culminated in the accused saying that he was on his way over to her house and then phoning J.H. and leaving a disturbing message on her voicemail. Given those facts, the complainant’s fear was clearly a reasonable one.
[56] The Crown has proven, beyond a reasonable doubt, every essential element of the criminal harassment charge. A finding of guilt will be entered on that count.
Conclusion
[57] I find H.B. not guilty of sexual assault (count 1) but guilty of criminal harassment (count 2).
[58] To Ms. Norman and Mr. Arfai, thank you for your professionalism throughout the trial.
Justice Conlan
Released: January 25, 2016
CITATION: R. v. H.B., 2016 ONSC 594
COURT FILE NO.: CR-15-741-00
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
H.B.
REASONS FOR JUDGMENT
Justice Conlan
Released: January 25, 2016