Court File and Parties

Citation: R v. RH, 2016 ONSC 6443 Court File No.: CR-14-30000231 Date: 2016-10-19

Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – RH, Defendant

Counsel: Malcolm Savage, for the Crown R. Roots Gadhia, for the Defendant

Heard: Sept. 26-30, Oct. 5-7, 11-13, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.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

E.M. Morgan, J.

[1] This case raises a question which legal scholars have been asking for several decades: do complainants fail courts, or do courts fail complainants?

[2] The Defendant is charged with sexual assault, administering a stupefying substance, and assault against three different victims. All of the charges flow from the events of a single tumultuous weekend, June 29-30, 2013, when the three complainants and, allegedly, the Defendant, celebrated Pride weekend together in Toronto.

I. The Complainants

[3] One of the complainants, EP, appeared at trial and testified as to what she described as a sexual assault by the Defendant on Saturday, June 29th. In relating the sequence of events leading up to the sexual assault, EP also testified about the Defendant coercing her into consuming a large quantity of cocaine that Saturday. She also testified about a physical fight or brawl that took place on Sunday, June 30th, in which the Defendant hit or punched or otherwise roughed up EP and her two friends and co-complainants, FY and KM.

[4] FY was subpoenaed to testify by the Crown. Although initially she could not be found, she was eventually located at the Vanier Centre for Women awaiting trial on an unrelated matter.

[5] FY attended at this trial and did testify. It would be overstating the matter, however, to say that she gave much evidence. FY is a person whose own mother, who was called to testify by the defense, conceded that she has a violent temper. For the most part, FY simply refused to answer questions and stated that she did not recall almost any of the events in issue. In ruling on a mid-trial application by the Crown to admit her prior testimony from the preliminary inquiry, I observed that FY "was not truthful in the many times that she said at trial that she does not recall events that she almost certainly does recall", and that she "is unlikely to be truthful whenever she is asked a question." I remain of that view now that the trial is over.

[6] KM was also subpoenaed to testify by the Crown. Although she attended as required on the first day of trial, she subsequently did not show up on a further date to which she was bound over. On the Crown's application, I issued a material witness warrant. However, the police were not able to locate her. For this reason, the Crown brought an application, which I granted, to have her videotaped police statement given on July 2, 2013 played for the court and admitted into evidence.

[7] Now that I have had an opportunity to watch the police statement (and read the accompanying transcript), I can say that for the most part KM's evidence, although found to be admissible, cannot be relied upon. According to Staff Sgt. Hunter Smith, the police officer in charge of this case who testified on the Crown's application for a material witness warrant, KM is a heroin addict. Some of the symptoms of that affliction were on exhibit in her videotaped statement; she seemed to go in and out of focus, was only semi-coherent, occasionally slurred her speech, and was very confused about crucial matters of time and place.

[8] What the prosecution boils down to, therefore, is essentially the testimony of EP, supported by some forensic evidence collected by the police. While the evidence of FY and KM might be sporadically useful to fill in one or two points, it would be dangerous to convict anyone on the evidence of an obstinate and unforthcoming witness like FY or a witness like KM whose evidence suggested that she might not be entirely in command of her faculties. In essence, the case rises and falls on EP.

II. The Friday night party

[9] On Friday, [...], 2013, EP and her then partner, FY, travelled to Toronto from Barrie, Ontario. It was the weekend of the Pride parade and was also EP's birthday. The two of them planned to stay with their friend, KM, at her apartment downtown in order to celebrate and enjoy the weekend festivities.

[10] EP and FY, who had met each other in prison, were at the time very close. EP testified that they were very much in love, and she frequently referred to FY as her wife, although they were not formally married. Just before the weekend in issue, the two of them had been living with FY's mother, NY, in Barrie.

[11] In addition, EP testified that she had developed a close relationship with FY's young niece. The niece lives with her grandmother, NY, in Barrie, and is the daughter of FY's sister and the Defendant. As a consequence of this close relationship with FY's family, EP also struck up a friendship with the Defendant. Although the Defendant was in prison for nearly all of the time EP knew him (with the exception of the three months immediately preceding the events in issue here), she would often call him and correspond with him. She even sent money for him to the prison canteen.

[12] EP conceded on the witness stand that during much of this time she was flush with funds. In the summer of 2012 she had $40,000 from selling drugs in northern Ontario. This is a matter of public record, since she was arrested in Moose Factory, Ontario that summer and charged with possession for the purpose of trafficking in cocaine, oxycontin, marijuana, and mushrooms. Those charges are still outstanding and, indeed, there is a warrant out for her arrest issued by the court in Moose Factory.

[13] EP explained that she has no intention of returning to answer the charges against her. She said that it is her understanding that the warrant will only be enforced within a 100 km radius of where it was issued. EP testified that she was advised that if she stayed that distance from Moose Factory she should be fine, although she claimed not to remember her lawyer's last name that gave her that advice. It is not my role to comment on the outstanding drug charges or on the legal advice she supposedly received; I only pause to note that ideas such as respect for judicial process and adherence to an Ontario court order or warrant did not seem to factor into EP's assessment of her situation.

[14] In any case, at trial EP testified that she and FY arrived in Toronto sometime around 10:00 p.m. on Friday, June 28th, and that they stayed a short time at KM's apartment before going out to a late-night lingerie party at a local club. She specifically said that she and her friends were not drinking that night, and so she remembered the events clearly. In her testimony in chief, she indicated that they had run into the Defendant just outside the club.

[15] In cross-examination, defense counsel put to EP her initial statement to the police given on July 2, 2013 – i.e. on the Tuesday following the weekend in issue. There EP had told a significantly different story, stating that after she and FY arrived at KM's apartment they stayed in to save money for Pride that weekend. She also said that she was drinking and had "knocked out" early to get some rest for Saturday.

[16] EP's explanation for this discrepancy was that she was "blurry" at her initial interview, which occurred soon after she had endured the trauma of this weekend, and could not recall events clearly at the time. Indeed, she indicated that although she has now reviewed the transcript of that police interview, she barely recalls it at all and cannot really remember what she said there. As she put it in response to a cross-examination question: "I don't remember what I said to the cops. I don't remember even speaking to the police."

[17] Defense counsel also put to EP a written statement that she sent to the police a half year after her initial statement, in February 2014. In this note, EP sought to correct her police statement from the previous year. She apparently remembered for the first time that she and her friends had not stayed in to rest that Friday night, but had indeed gone to a club where they eventually ran into the Defendant. Again, she explained the discrepancy by saying that she had been "blurry" at the time of her initial statement, and that she was hardly able to recall what had occurred during the weekend in which she had endured a sexual assault and other abuse.

[18] There are a number of problems with EP's explanation. In the first place, her initial recollections of Friday night were very precise – she specifically recalled being tired and wanting to stay in to save money for the weekend. Her story to the police did not take the form of a vague, blurry narrative; it was full of very specific details. Taking her explanation seriously means that she did not just forget about the lingerie party, but also inadvertently "remembered" discussing saving money and knocking off early to rest up for the weekend when that never actually happened.

[19] Moreover, EP testified in chief that even today she can barely recall what she said in her initial police interview. It turns out, however, that 6 months later she remembered it so well that she thought to correct very specific details of what she had said. It seems odd, to say the least, for EP to have been so "blurry" in July 2013 that she did not know what she was saying, and then to have been so conscious of what she had said that she could correct it in a precise way in February 2014, and then to again to have lost most of her memory of what she had said when she testified in chief at trial in October 2016.

[20] The real surprise in all of this, however, came not so much with the reading of EP's transcript of her July 2, 2013 police interview, but with the viewing of the videotape of that interview. There was absolutely nothing vague or otherwise unsure about EP's statement to the police. Contrary to her demeanor at trial, which was quiet, somber, and what might be described as cautious, her statement to the police was animated, self-confident, and precise. She gave the impression of a person who was very much alert and razor sharp in the information she was conveying. It is fair to say that in her statement to the police, EP was anything but "blurry".

[21] Defense counsel submits that we may never know what the three women did that Friday night – whether they went out or stayed at KM's apartment. The building in which KM's apartment is located is a high rise, glass tower in downtown Toronto. Sgt. Smith confirmed that it is a modern building with a concierge in the lobby and security cameras at the entrances and at various other points. One would think it would be a relatively simply matter to retrieve the security video from the building's management and to thereby verify the comings and goings of the relevant individuals that weekend. In fact, Sgt. Smith testified that he did speak with someone at the building about this when he was first contacted by EP a couple of days after the incidents in question. At that point, the footage would presumably have been readily available, but the police never managed to get it from the building management.

[22] Counsel for the defense goes on to postulate that upon reflecting on her initial police statement, it must have occurred to EP that it was necessary to figure out a way to build the Defendant into her narrative of Friday evening. Otherwise, it would be hard to explain how the Defendant ended up at KM's apartment on Saturday morning. The presence of the Defendant in the apartment on Saturday morning, it will be seen, is a significant part of the narrative leading up to EP's allegation of sexual assault by the Defendant on Saturday afternoon. The defense suggests that the purpose of EP's note to the police in February 2014 was to correct this flaw in the plot.

[23] Defense counsel also points out that the three friends' entire weekend was one of partying that appears to have been fueled by a substantial amount of alcohol and drugs. As indicated, EP contradicts herself in her various statements as to whether she was drinking on Friday, and testified at trial that she barely ever drinks or does drugs. She said that she sometimes smokes marijuana but never does any harder drugs, and certainly not cocaine.

[24] KM, on the other hand, said in her police statement which I allowed into evidence, that all three women had been intoxicated on either drugs or alcohol the entire weekend. Given KM's general proclivities in this respect, this statement struck me as one of her more reliable ones. Indeed, it was supported by FY in one of the few questions that she answered in a straightforward way. When asked if EP uses drugs, including cocaine, she said that of course she does, along with alcohol, marijuana, and "molly" or ecstasy, which is EP's favourite.

[25] Frankly, it is not credible that EP's closest friends are all heavy drinkers and drug users, that she spends celebratory weekends partying with them when they are drinking and getting high, that she is an admitted dealer of cocaine and other drugs, but does not herself use drugs or drink. She was almost certainly indulging in all of this with her friends during Pride weekend 2013. She may want to somehow sanitize her conduct for the sake of presenting herself in court, but this appears to me to be a disguise of her true self.

[26] To be clear, I do not hold her at fault for celebrating her birthday and the Pride parade, and she is not on trial for drug use. However, her willingness to present an untrue image of herself to the court does not help in the effort to establish what truly occurred on the relevant days.

[27] Defense counsel goes so far as to suggest that what we might be seeing in EP's July 2013 police interview is a cocaine-influenced interview. She submits that EP's use of this drug might explain the highly animated, almost frenetically energetic and precise descriptions of events that can be seen on the videotape. I have no way of knowing whether that is in fact the case.

[28] I do know that the police statement was given only 2 days after the weekend in issue, and I would not want to judge how a person might potentially react to trauma. Although it is contrary to what she actually said about herself, it is possible that EP was responding to a sexual assault in the short term by becoming energized rather than dazed. It is also conceivable that the blurriness of her testimony – which was, in fact, exhibited at trial rather than in her initial police statement – set in several years after the events.

[29] The Supreme Court has repeatedly said that a complainant "ought not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons...react to acts of sexual abuse": R v DD, 2000 SCC 43, [2000] 2 SCR 275, at para 63. This principle applies as much to the complainant's demeanour in making the complaint as it does to the timeliness of the complaint.

[30] It is the content of EP's evidence that forms the record in this case, not the tone or mannerisms with which she testified. I therefore draw no inferences from the fact that EP was animated at her police interview and somber on the witness stand at trial. My overriding concern has to do with what she said, not how she said it. But that is the crux of the problem when comparing her various statements. As EP's personality changed from police statement to trial, so did her story.

III. The Saturday incident

[31] The events of Saturday, June 29th, at least in their fine details, are almost as difficult to piece together as those of Friday, June 28th.

[32] EP testified that she woke up around 11:00 a.m. The Defendant was at the apartment. According to EP's testimony in chief, he was asking FY if she wanted to come to his place to pick up a pair of shoes she had left there. EP spent a few minutes on the stand elaborating about how FY had specifically bought a pair of shoes to wear with the outfit she planned to wear at Pride, and how it was important to FY to get them from the Defendant's apartment.

[33] In cross-examination, EP suddenly remembered that it was a sweater that was to be retrieved from the Defendant's place, not shoes. It turns out that this is what EP had told the police at her initial interview; she had even spent a few minutes elaborating on the fact that FY wanted a sweater even though it was June 29th and a hot summer day. When asked about this discrepancy, EP said again that she was "blurry" when she gave her initial police statement, and that she did not exactly recall the reason for the trip to the Defendant's apartment.

[34] Counsel for the defense points out that this exchange is emblematic of EP's lack of memory of her initial police statement. Once again, the information she gave the police was detailed and specific, not full of unknown answers and memory gaps. If her answers were incorrect back in July 2013, it was because she was actively filling in facts, not because she could not remember them.

[35] Whether the trip was for shoes or a sweater, FY eventually said she did not want to go as she has problems with her legs and wanted to "save her legs for Pride". The Defendant then asked EP if she would go with him, and she agreed. EP testified in chief that she had been to the Defendant's home twice before. Defense counsel put it to her that in her police statement she had said she had been there 5 or 6 times before. EP could not explain the discrepancy, and dismissed it as irrelevant.

[36] It is clear, however, that EP was familiar with and comfortable enough in the Defendant's apartment. She drew a diagram of the apartment for the police when she gave her statement in July 2013. Without putting too fine a point on it, there is nothing about EP's drawing of the rooms and layout of the Defendant's apartment that suggests that she was "blurry", or that she was suffering from a lack of memory or an inability to focus.

[37] In any case, EP testified that she did go to the Defendant's apartment. She said it was about a 45-minute taxi ride to his place, which was in the Port Union area of Scarborough, Ontario. According to EP, they left KM's apartment around 11:30 a.m. The trip to the Defendant's place, including the travel time there and back and what she described as a 3-hour ordeal at the Defendant's apartment, took somewhere over 5 hours. She only returned to KM's apartment at approximately 5:30 p.m.

[38] Defense counsel suggests that it is improbable that EP would have been gone from her friends for such a long time without prompting some curiosity or anxiousness from them about where and why she had disappeared. She submits that EP is purposely stretching the timing of the story out in order to fit the narrative of what she says transpired in the Defendant's apartment.

[39] Defense counsel also submits that EP's timing is contradicted by the police statement given by KM, who stated that she had gone out of her apartment for a time on Saturday, and had left at around 2:00 p.m., which was about the same time that EP and the Defendant left for the Defendant's house. KM also told the police she had returned at around 4:30 p.m., and found EP there with FY, and had understood that EP had just returned from the Defendant's place.

[40] KM offered this information freely, and stated truthfully that she did not know what happened between EP and the Defendant that Saturday as she was not there when EP said the incident occurred. She seems to have had no reason to lie about the timing of her departure and arrival that day. That said, she is generally unreliable about times throughout her police statement. At one point she seemed to confuse the events of Saturday with the events of Sunday, and even upon several re-readings of her transcript it is unclear exactly what she meant. Accordingly, either KM or EP was inaccurate about the duration of EP's absence from the apartment on Saturday afternoon, but I cannot be sure which one's timing was right and which one's was off.

[41] EP testified that when she arrived at the Defendant's apartment she went to the closet to get FY's shoes and put them in a bag. The Defendant then went to take a shower, while EP waited in the dining room watching music videos on TV.

[42] In her examination in chief, EP testified that the Defendant called her over to the bedroom to see something on television there. She was quite specific in her description, and quoted the Defendant's words "Hey, come look at this on TV." She said that she was confused when she got to the doorway of the bedroom, as she could see that the TV was playing a commercial and she didn't understand why the Defendant had asked her to come see it. EP agreed with defense counsel's suggestion that the Defendant's calling her over to the bedroom was "the catalyst for the events that transpired over the next 3 hours."

[43] In cross-examination, defense counsel put to her the 2013 statement she gave to the police, and it was clear that the narrative of events had changed somewhat. In her police statement, the Defendant said nothing at all to call her over to the bedroom. Rather, she said that she was in the dining room about to have a cigarette when she heard something on the news, and on her own went over to stand in the doorway of the bedroom to see the TV there, which was tuned to the CP24 news channel.

[44] When asked about this discrepancy, EP once again asserted that the first version was wrong because she was "blurry". When defense counsel played the videotape of her statement for her, however, EP was forced to agree that she was demonstrative, getting up to describe the scene by gesturing with her arms, etc. It was apparent in comparing her testimony at trial to her statement to the police that in her police statement she knew exactly what she was saying. The only mystery is why she changed the story.

[45] The confusion between the two statements continued beyond the "catalyst" and into the next stage of EP's narration of her interaction with the Defendant. At trial, she described him standing in the bedroom wearing a towel when she answered his call to watch TV. She said that he then went back into the bathroom and came out with nothing on. In the police interview, she related that the Defendant was getting a sweater in his bedroom while she was watching the news in the bedroom. He grabbed the sweater and took it into the bathroom and then came out "butt naked" wearing nothing but a condom and holding his phone in his hand so he could film her reaction.

[46] At her police interview, at the preliminary inquiry, and at trial, EP was asked whether the Defendant had an erection when he came out of the bathroom naked. At one point she confidently stated that he did not have an erection. In fact, she said that she did know that he ever had one until he "turned me around to give it to me". At another point, she qualified that statement somewhat, indicating, "No, I actually don't think it was erected the whole time." At trial, EP was more confident that he actually did have an erection. Defense counsel suggested that perhaps in the interim someone had pointed out to her that it is unlikely that he had a condom on without an erection.

[47] Indeed, EP seemed to acknowledge this flaw in the narrative and went to some effort to explain it away. She elaborated that she has always been a lesbian, and that she does not know what a male with an erection looks like.

[48] Although this explanation is not entirely implausible, it seems improbable. As defense counsel stated in her final submissions, we have for decades had health and sex education classes in school where anatomically correct representations are standard. Moreover, as a 28-year old, EP has grown up in the age of the internet; her statement would place her among a distinct minority of her generation who has never seen explicit nudity on screen: J.S. Carroll, L.M. Padilla-Walker, L.J. Nelson, C.D. Olson, B.C. McNamara, and S.D. Madsen, "Generation XXX: Pornography Acceptance and Use Among Emerging Adults" (2008), 23(1) Journal of Adolescent Research 6-30.

[49] What happened next has also been described in a number of different ways. At trial and in her police statement, she said that the Defendant told her in so many words to perform oral sex. He then threatened that, "If you don't...then I'm going to rape you."

[50] At the police interview, EP also said that the Defendant threatened her in a very specific way: "If you don't let me fuck you I'm gonna call FY right now and tell her that we fucked." Interestingly, this threat subsequently disappeared from EP's testimony at the preliminary inquiry and trial.

[51] EP's hesitance to reiterate this allegation may dovetail with evidence provided by FY's mother. According to NY, her daughter and EP had a physical fight several weeks earlier, after EP had come to NY's house in Barrie in order to get away from FY. As NY understood it, FY, who her mother conceded has a violent temper, apparently accused EP of sleeping with the Defendant. Although EP denies it, and FY refused to testify about it, NY's testimony would help shed light on the change in EP's narrative. That is, it suggests that whether or not the Defendant was telling the truth, EP did not want to repeat his threat at the preliminary inquiry – when she was still together with FY – as it might prompt another beating, and that EP did not want to repeat his threat at trial – when she had already broken up with FY – as it might suggest to the court that her sexual relations with the Defendant were consensual.

[52] According to EP, after threatening her the Defendant gestured toward a 2-inch high pile of white powdered cocaine, and said that if she did 12 lines he would not rape her. She testified that she agreed to do this, but made him promise that he would stick to his bargain.

[53] EP testified that she was very upset at this point, and that when speaking with the Defendant she mentioned his daughter's name several times in order to get him to think about something else. At trial she testified that she reminded the Defendant that she is his daughter's auntie, and asked him, "How could you do that to someone who's pretty much like family?" In EP's police statement, on the other hand, she said it was the Defendant himself who brought up his daughter's name at this point, telling her "I swear on my daughter's life that if you do 12 lines of cocaine I won't rape you."

[54] EP went on to describe snorting the lines of cocaine, which the Defendant had formed out of the pile of powder using a card of some kind. He gave her a rolled up paper to use as a snorting device – in her police statement she said that the Defendant gave her a $5 bill to use, at the preliminary inquiry it was a torn piece of lined paper, and at trial it was a piece of paper that was no longer described as torn.

[55] EP said that she snorted the cocaine as directed, although it was too much for her and she vomited in the middle of the 12 lines. She described vomiting into a garbage can that contained a plastic bag, which the Defendant subsequently removed from the can. She testified that she was sobbing and gasping at the time.

[56] EP continued that upon completing the 12 lines, the Defendant reneged on his promise. She said that he threw her on the bed, and at about the same time picked up something from the dresser that was underneath a grey shirt. She related that she understood from the shape of the object that it must be a gun. It was EP's evidence that FY had previously told her that the Defendant keeps a gun in his house. EP could not recall whether the Defendant said anything to her at that moment, but she said that although she never actually saw the gun she took this as a serious threat.

[57] It bears noting that EP is under the impression that the Defendant has in the past shot someone with a gun. Although I did not permit the Defendant's criminal record to be introduced at trial, the narrative establishes that EP used to correspond and speak with the Defendant while in prison. Of course, EP may be misinformed about the Defendant's past offence. In any case, it is hard to tell whether she jumped too quickly to a conclusion about what was under the shirt. It is also the case that EP herself is no stranger to gunplay. She has a prior conviction for shooting a friend with a BB gun, although she now says that despite pleading guilty she did not do the shooting.

[58] On the witness stand, FY did not corroborate EP's statement about the gun. As with almost everything else, FY denied any recollection of the event. In cross-examination, her previous statements were put to her, but they were of little help. At FY's initial police interview she said nothing about a gun until the officer specifically asked her about it. Her response was, "She [EP] said that there was a weapon. No one's ever seen it." On the other hand, at the preliminary inquiry, FY seemed to have been very knowledgeable about a gun kept by the Defendant, and described it in some detail as silver with a black handle. Defense counsel submits that FY's police statement was spontaneous and truthful while her preliminary inquiry answer was rehearsed and coordinated with EP, although it is always a possibility that her initial statement was false and the subsequent one was true. With FY, truth and falsehood are virtually indistinguishable.

[59] EP continued her testimony by indicating that having thrown her onto the bed, the Defendant forced her to have vaginal intercourse. As she described the sexual assault, there were some differences between her trial testimony and her police statement. She said, for example, that the Defendant grabbed her by the neck and threw her on the bed; there is a discrepancy as to whether he grabbed her by the throat or the back of the neck. She related that he tore off her pants; again, there is a discrepancy as to whether she was wearing full length jeans or capris-style pants, and whether he pulled them off over her shoes or she took them off at his command. She said that he pushed her onto the bed and he forced himself on her; again, there is a discrepancy as to whether he held her down with both hands or kept his phone in one hand recording the entire event.

[60] These differences between EP's trial testimony and her prior statements are mostly of a minor type which any complainant witness recalling a violent or traumatic episode might exhibit. I am conscious of the fact that the mere presence of inconsistencies does not lead to a finding of a lack of credibility and/or reliability, and that inconsistencies on minor points do not necessarily lead to a general conclusion: R v MCJ, 2015 ONCJ 171, at para 29.

[61] However, the sheer number of small discrepancies in EP's testimony gives one pause. The overall impression left by EP's description is that either she recounted an enormous number of incorrect details at her initial police interview and has striven to correct them as time has gone on, or she has lost track of what she said at the police interview and is improvising as she goes along.

[62] According to EP, the sexual assault went on for a full three hours. She described lying face down on his bed, crying and gagging while having a hard time catching her breath. She also said that he at first had the condom on that he had been wearing for the half an hour it took to consume all of the cocaine. She testified that midway through intercourse, he took off the condom and threw it on the floor across the bedroom before continuing to penetrate her. EP said that when he re-entered her he said, "Don't worry, I'm not going to bust inside of you." But she was certain that he had broken that promise as well, as he eventually did ejaculate inside of her. As she described it, "I had stuff leaking out of me."

[63] The rest of EP's description of that afternoon involves the trip back to KM's apartment. She said that the Defendant told her to shower. She indicated that she did take a quick shower, but she was unable to wash herself internally as her vaginal area was sensitive and sore.

[64] EP testified that the Defendant then called a taxi and showered himself while she waited smoking a cigarette in his garage. The taxi stopped first at the Defendant's grandmother's house where he wanted to pick up some money; here there is a discrepancy in that at trial she said she got out of the car and they eventually called another cab, while in her police statement she indicated that she waited in the taxi until he returned from the house. As usual, she explained the discrepancy by saying, "My mind wasn't right when I went into that interview." Also as usual, this portion of the videotaped police interview shows EP to be alert and focused.

[65] EP testified that from the Defendant's grandmother's house the taxi took her to the Scarborough Town Centre. She said that the Defendant dropped her off there and, inexplicably, gave her $80 in cash. She then took the subway back to Union station and walked to KM's apartment.

[66] Counsel for the defense makes much of the fact that EP had a number of different opportunities to escape from the Defendant – e.g. when he was in the shower, when the taxi first came to his house, or when he went into his grandmother's house – but she failed to take any of these opportunities. Counsel for the Crown submits that this is a line of inquiry that is closely related to, and in principle indistinguishable from, the discredited doctrine of recent complaint.

[67] EP claims that she was frozen with fear and, in any case, until the Defendant gave her the $80 she did not have any money on her for a taxi and did not know the way back from Port Union. That may or may not be true in the circumstances, but the fact that a sexual assault complainant might fail to escape while she can does not in itself establish anything. It is one thing to question the specifics of a complainant's testimony in order to test her credibility, but it is another to doubt her credibility because of a preconceived stereotype. It is a discredited myth or stereotype to think that a complainant who does not attempt to fight back or physically escape her abuser was somehow consenting to the abuse: R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, at paras 93, 95. I therefore take nothing from the fact that, by her own account, EP had opportunities to get away from the Defendant that Saturday afternoon but failed to do so.

[68] As it turns out, EP got back to the apartment just as her friends were preparing to go out for the night. She testified that she refrained from telling them what happened at the Defendant's apartment because she did not want to ruin their party night. They all went out drinking and then to an after-hours bar where they stayed until the early hours of Sunday morning. According to EP, she was not doing any drinking, but rather was quiet and sullen for much of the night. This description, however, was contradicted by KM's rendition of the events that evening, in which everyone, including EP, was drunk or otherwise high and in Pride party mode.

[69] On a final note, EP indicated that although she did not tell FY or KM that night about being sexually assaulted by the Defendant, she did in fact tell one person. During the course of the night they ran into FY's brother and his girlfriend, JS. EP testified that she knew JS, but that they were not particularly close. She said that at one point she felt a strong need to unburden herself, and so she told JS what had happened that afternoon. She also said that JS advised her to tell FY, but EP refrained from doing so until the next day.

[70] JS was initially subpoenaed to testify at trial. When she did not appear, the Crown sought a material witness warrant. It was the Crown's submission that JS was a material witness going to the narrative of events and the credibility of EP. I denied the warrant on the grounds that no effort had been made to find JS, and encouraged the Crown to have the police make some effort and if they still could not locate her in a day or two to bring back the application. The police apparently never did find JS, but for reasons unknown to me the Crown decided not to revisit the application. In the result, JS was not a witness at trial.

IV. The Sunday incident

[71] EP related that the next day, Sunday, June 30th, she slept until around 4:00 or 4:30 p.m. When she awoke, the Defendant was in KM's apartment. In fact, EP testified that she woke up to the sound of him screaming that someone had stolen all his money. She said that KM commented that he probably spent it all in the after-hours club, where they had met up with him and he had been buying drinks for everyone.

[72] As EP recounted it, the Defendant then got dressed to go home while the rest of them went back out to Pride. KM told the police that there was a great deal of tension in the apartment; indeed, so much so that her younger sister, who had been visiting, began crying and saying that she wanted to go home. KM said that she was not sure what the tension was about, but she was glad to get out of the apartment.

[73] At some point EP said that she and her friends decided to smoke a "blunt" in the park. KM was about to call the Defendant to come join them, but EP decided at that point to tell them what had happened the previous day. EP said that they all started crying. EP also conceded that FY became very angry at hearing this news, although she said that FY was primarily angry with the Defendant and denied that she was angry with her. When FY herself was asked about this on the witness stand, she at first refused to say that she remembered anything; but after a few questions from defense counsel, she grudgingly admitted that she did not believe EP and seemed to suggest that she suspected EP and the Defendant had a sexual relationship already.

[74] After a short time they decided to go back to KM's apartment to talk about it some more. When they arrived there, the Defendant was at the apartment taking a nap. EP said that KM must have left the door unlocked when they left.

[75] EP said that she saw FY run straight into the bedroom to scream at the Defendant, "You raped my girl." At that, EP related that the Defendant grabbed FY's head and pushed her into the television set. According to EP, he said, "Yah, I raped her but the pussy wasn't that good."

[76] EP continued the story by describing how the Defendant then came over to punch her, but KM stood in the way and he ended up punching KP in the face and ribs. EP said that she was crying and was trying to get KM out of the way.

[77] According to EP, at some point the Defendant and FY started fighting again, and the Defendant bit her. He then went back to KM and punched her again, this time knocking her out cold. Shortly thereafter, they woke up KM, left the house with their suitcases (which EP said she had already packed the previous day, although it is unclear when she had time, considering that she spent over 5 hours going to and coming from the Defendant's apartment).

[78] The three women went to a nearby Subway shop to sit and talk. In her testimony in chief, EP said that they sat there for a short time to collect their thoughts, and that KM sat there all beat up and bloody in the face. At the preliminary inquiry, defense counsel pointed out, the visit to Subway was described as a far longer and more intense meeting. There, EP had said that they reviewed everything that had happened that weekend. It is defense counsel's theory that a substantial amount of collusion between the three women took place during these intense discussions.

[79] For her part, KM apparently did not even remember any meeting with her friends at Subway. In fact, she indicated in her police interview that she was essentially blacked out and drunk for the next day or two. As far as anyone's appearance at the Subway shop is concerned, there is no video from any security camera showing them there, and no one who works at Subway was called to testify. A group of bloodied and beaten women, one of whom was possibly drunk to the point of being unconscious, would presumably have been a memorable sight for a sandwich shop employee during the late night of June 30, 2013, but none was brought forward.

[80] From Subway, the three women decided to go spend the night at EP's brother's house. They stayed there until Tuesday, July 2nd, when they called the police. The police came and picked them up, and took them directly to the hospital where they were medically examined. EP also underwent a rape kit in order to collect evidence.

[81] The Crown entered into evidence a number of photographs, some taken by police officers investigating the two apartments and some taken at the hospital. One photo, taken by a police officer at KM's apartment, shows KM with a swollen lip, while others, taken at the hospital, show EP with some scratches and abrasions on her arm and neck. Needless to say, the photographs do not establish how or when any of those injuries were received, although KM's lip looks like a relatively fresh wound. It is hard to tell with an untrained eye whether the markings on EP are recent (i.e. within 2 days of the photograph) or older.

V. Burden of proof

[82] It is, of course, axiomatic that the onus of proof beyond a reasonable doubt is always on the Crown.

[83] In assessing the case, the evidence must be considered in its totality: R v. L (CO), 2010 ONSC 2755, at para 6. As the Court of Appeal has observed, "any evidence or lack of evidence may cause a trier of fact to have a reasonable doubt about the guilt of an accused: R v Manjra, 2009 ONCA 485, para 24 [emphasis added]. Accordingly, I must acquit the Defendant 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), 1977 CanLII 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA).

[84] As indicated at the outset, the case essentially turns on the testimony of EP. The testimony of FY and KM is generally unreliable. Ironically, in the few spots where those two witnesses might be useful to provide objective observations, they tend to contradict the evidence of EP.

[85] As is obvious in my review of EP's own evidence, she is not a very good witness. She changed substantially from her initial police statement through the preliminary inquiry to the trial, and this change is reflected in a constant flow of conflicting evidence. While her overall story is basically the same, the details of her account never seem to come out the same way twice.

[86] The difficulties in EP's testimony may, of course, reflect the trauma she allegedly suffered. On the other hand, they may reflect her tendency to disregard the truth.

[87] The defense has put forward a number of theories about what transpired here. Primarily, these are based on some form of collusion between EP and her two friends. According to defense counsel, one of two things happened. EP may have been afraid of getting another beating from FY for having slept with the Defendant, and so concocted the story of a sexual assault and fed it to FY and KM who went along her – at least until EP and FY broke up sometime after the preliminary inquiry. After that, FY was too bitter to tell the truth and KM became too drug addled to show up to testify at all. Alternatively, EP and her two friends may have stolen money from the Defendant, and then concocted the sexual assault as a way of fending off those accusations – the best defense, in other words, being an aggressive offense.

[88] Counsel for the Crown submits that none of the defense theories truly hang together. He points out that the theft theory has very little support in the evidence. He argues that this theory postulates a conspiratorial conversation at the Subway shop on Sunday night, and so would not explain EP's late Saturday night disclosure of the sexual assault to JS. Crown counsel also suggests that the notion that EP made the entire thing up to avoid another beating by FY makes no sense, since it does not explain how it is that FY came to collude with her or why KM would go along with the story. Likewise, it does not explain the preliminary disclosure of the sexual assault by EP to JS.

[89] The Crown has a point here. Some of what defense counsel puts forward as a theory is just that – nothing more than a speculative theory. There is certainly not enough evidence in the record to demonstrate that the defense has disproved the Crown's case. But, needless to say, that is not how the onus of proof works. The defense does not have to prove its theories; it only proposes certain alternative theories of the case to demonstrate that there is some doubt about the Crown's theory. It is only the Crown's version that actually must be proved.

[90] Without some support, EP would be a very difficult witness on which to achieve proof beyond a reasonable doubt. Although the broad outlines of her testimony about sexual assault remained relatively constant, her various statements throughout the process contained a myriad of detailed inconsistencies. Adopting the Court of Appeal's description in R v M(A) (2014), 2014 ONCA 769, 123 OR (3d) 536, at para 13, she exhibits "a carelessness with the truth about which the trier of fact should be concerned." Some level of doubt inevitably creeps into the testimony of a witness who constantly contradicts her own prior testimony.

[91] The evidentiary support for the Crown's case could come from a thorough police investigation. Security camera footage and independent witnesses could potentially verify the comings and goings of the key individuals from the relevant apartment buildings and shops. Forensic evidence could potentially verify the physical elements of an assault or sexual assault, and could also potentially place the relevant individuals in the relevant apartments at the relevant times.

[92] Counsel for the defense submits that there is none of this kind of independent evidence in the present case. She alleges that the police did very little, and simply relied on witnesses telling a story about a person with a criminal past in order to secure a conviction. While defense counsel may somewhat overstate the point, there is a kernel of truth to her observation.

[93] To be fair, the police did send the three complainants to the hospital for medical evaluations, and a rape kit was done for EP. Moreover, they did bring a forensic investigative team to the Defendant's apartment and to KM's apartment to search for relevant evidence. The problem for the Crown is that they managed to find very little.

[94] In the first place, no firearm was ever found at the Defendant's house. In argument, counsel for the Crown conceded that there is insufficient evidence to seriously consider the charge of threat with a firearm.

[95] Despite EP's testimony that the Defendant had discarded the condom and ejaculated inside of her, the hospital and laboratory tests found no evidence of semen, either internally or anywhere on EP or on the underwear she wore on the day of the alleged sexual assault. The tests did indicate what might be the vestiges of male saliva on EP's underwear, but, ironically, there is nothing in EP's evidence about oral sex or that would otherwise suggest to whom the saliva belongs. The underwear was in EP's possession for several days before she brought it to the hospital on Tuesday, July 2nd, and so it is possible that saliva was transferred from elsewhere. In addition, despite EP's evidence that her vaginal area was sensitive and sore, the medical examination found no sign of injury.

[96] The only injuries found in all of the medical examinations were some scrapes and abrasions on EP's arm and neck area. The nurse who examined her was brought to testify, but she could say little about how or when these small injuries might have been inflicted. It would be speculative to attempt to conclude that the several red marks seen on EP somehow match the physical abuse that she described in her testimony. She had, after all, just been through a weekend of intoxicated partying, including at least one all-night drinking session at an after-hours club. It takes little imagination to picture her acquiring all manner of small abrasions on the skin.

[97] As for the photo of KM's swollen lip, it certainly looks painful and amounts to more than just the minor abrasions seen on EP. But then, KM is by all accounts a much heavier drug user and drinker than EP. KM herself indicated that she was so drunk during the 2013 Pride weekend that she had lengthy blackout periods. It does not strain credulity to surmise that some form of injury like this might occur to a person who spends several consecutive days drinking herself into unconsciousness. It certainly raises some doubt about how and where the lip injury occurred.

[98] The forensic investigation of the apartments likewise turned up little in the way of helpful evidence.

[99] There is no evidence of the Defendant having been in KM's apartment at all, let alone on the evening of the alleged brawl. The police found one beer bottle with signs of male saliva on it, but there is nothing to link it to the Defendant. There was no evidence of the Defendant's fingerprints in KM's apartment, although it is unclear to me whether the apartment was even tested for fingerprints.

[100] Similarly, the police found and photographed a TV with a broken screen, but there is no forensic evidence indicating who or what hit the screen. As already indicated, FY, who according to EP had her head pushed into it, denies ever having hit the TV (although, admittedly, FY's denials are always highly suspect).

[101] The police did find bloodstains on the bed and other places in KM's apartment, which can be seen in the photographs. This seems to confirm that some type of melee or violent brawl took place in the apartment. However, only one small blood sample was apparently sent by the police for testing, and it turned out to be too small to conclusively link it to anyone. Something happened in KM's apartment to break things and splatter blood here and there, but the physical evidence collected by the police, such as it is, does not help to establish what exactly went on.

[102] The forensic investigation of the Defendant's apartment was equally fruitless. Just as there is no sign of the Defendant ever having been in KM's apartment, there is no sign of EP ever having been in the Defendant's apartment. There is no fingerprint evidence establishing EP's presence in the apartment, although again I am unsure whether any fingerprint investigation was even done.

[103] Despite searching the Defendant's bedroom and other rooms for potential DNA evidence, nothing was found or sent for testing that places EP there or that would signal a violent sexual encounter. The bedsheets were not sent for examination, and so there is no saliva from the bed on which EP said she lay face down crying and gagging, there are no vaginal secretions from the bedsheets or pillow cases on which the violent sexual intercourse allegedly took place.

[104] For that matter, there is no evidence of any semen from the Defendant. Crown counsel points out that discovering the Defendant's semen on his own bed would establish very little, which may explain why the police did not test for it or send samples from the Defendant's bedsheets to the laboratory for testing.

[105] There is also no sign of any vomit or other secretions in the garbage pale where EP said she threw up, or in any other place around the area of the bedroom. EP testified that the Defendant threw the garbage bag away; but one cannot help but think that throwing up after nearly a dozen lines of cocaine must have been a messy affair. It might have left some trace in an apartment that was otherwise not cleaned up several days later when the police arrived. Yet no samples of anything in or around the garbage pale were collected or tested.

[106] Similarly, no trace of cocaine was ever found in the apartment. It appears that the police never searched or tested for this, although it would have been an obvious forensic test to administer. After all, EP said in her police statement that a 2-inch pile of cocaine was poured onto the Defendant's dresser and that it was divided into numerous lines and snorted by her during a violent confrontation when she was very upset. Some residue or wayward powder might be expected in the vicinity.

[107] Although EP claimed to have taken a taxi with the Defendant from KM's apartment to his own apartment on Saturday afternoon, no taxi driver testified and no security footage from a taxicab camera was entered into evidence. EP testified that she was certain that the Defendant had called the Beck taxi company, and she described the orange and black colour scheme of Beck cabs. It would not have been difficult to pinpoint the specific car and driver who answered the call and took a fare from KM's address in downtown Toronto to Port Union on Saturday, June 29th.

[108] As already indicated, no security camera footage was ever produced from the various cameras installed in KM's apartment building, and no concierge or other personnel from the building was called to testify as to who among the relevant persons came and went that weekend. Likewise, no security footage or employee from the Subway shop was introduced by the Crown.

[109] In short, there was nothing produced by the Crown to support the testimony of EP and the other two complainants. Indeed, the forensic evidence – or, more to the point, the lack of forensic evidence – seems to suggest that the story told by EP does not accurately describe the events of the two days.

[110] It is hard to fathom that a forensic team could go through KM's apartment, where the Defendant supposedly slept and was involved in a bloody brawl, and find not a hair, fingerprint, or drop of bodily fluid to indicate his presence. Similarly, it is difficult to comprehend how a forensic team could thoroughly investigate the Defendant's apartment, where EP was supposedly raped, threw up, gagged, cried, and made to consume a large quantity of cocaine, without so much as a hair, fingerprint, or drop of bodily fluid to indicate her presence.

[111] In other words, when the picture presented by EP is held up against the picture presented by the forensic investigation, there is something wrong either with the investigation or with the picture.

[112] This is perturbing case. The Crown has brought three complainants, each of whom in her own way is a difficult and troubled person. One is an addict who cannot recount in a coherent way what she did on a given day, one is a violent person with anger management issues that prevent her from relating anything useful or truthful, and the third exhibits extreme swings in personality which, whether internally induced or drug induced, produce a different narrative each time she tells what is supposed to be the same story. The complainants also each have their own share of legal difficulties.

[113] None of this should affect their rights not to be assaulted. Troubled individuals, including those who engage in criminality themselves and who face difficult personal issues, have a right not to be sexually and violently victimized by others. Society has a duty to protect them just like everyone else. But it is predictable that they will be poor witnesses. If they are put up on the stand, without more, the prosecution is likely to fail.

[114] Investigative support for the complainants is therefore a necessity. If witnesses contradict each other on the times that they came and went from an apartment building, video feed from the security camera in the lobby would definitely help. If a witness cannot properly recall when she ordered a taxi or travelled to a given location, the taxicab records would save her from undermining herself on the stand. If a complainant says she was forced to consume drugs which were spilled all over the dresser, a test for the drug or its residue on the dresser might lend some credence to the story. If a complainant says she was beaten by a man visiting her apartment, a test for fingerprints placing him there might help in supporting her.

[115] Contemporary legal scholarship is replete with studies criticising the law of sexual assault, to the effect that "the justice system, at every stage, is hostile to claims of rape": David P. Bryden and Sonja Lengnick, "Rape in the Criminal Justice System", 87 Journal of Criminal Law and Criminology 1194, 1210 (1997). This has produced a body of writing proposing adjustments to the onus of proof where a complainant's credibility is in issue: Melanie Randall, "Sexual Assault Law, Credibility, and 'Ideal Victims': Consent, Resistance, and Victim Blaming" (2011), 22 Canadian Journal of Women and the Law 397.

[116] The advocacy for reform reflects dissatisfaction with the impact of the trial process. As indicated at the outset of this judgment, in sexual assault, as in domestic assault, legal academics have asked whether it is the complainants/witnesses who are failing the justice system or the system that is failing them: See, Antonia Cretney and Gwynn Davis, "Prosecuting Domestic Assault: Victims Failing Courts or Courts Failing Victims?" (1997), 36 Howard Journal of Crime and Justice 146.

[117] Although I acknowledge the scholarly critique, it is not my role here to comment on the state of the law. It is, however, my role to comment on the state of the evidence. Thorough investigation and analysis can potentially fill in gaps for the Crown, sparing complainants the burden of carrying the entire weight of the case. This, in turn, leads to more effective prosecutions that, at the same time, respect the presumption of innocence and preserve the evidence-based premise of the justice system.

[118] In the 17th century, Sir Matthew Hale observed that sexual assault "is an accusation easily to be made and hard to be proved": M. Hale, History of the Pleas of the Crown (London, 1971 ed.), at 63. With 21st century forensic and surveillance techniques, it should be getting easier. What it takes is investigative effort and resources.

VI. Disposition

[119] Putting all of the evidence, and the lack of evidence, together, I am left with a reasonable doubt as to what occurred between the Defendant and the three complainants on Pride weekend 2013. I find the Defendant not guilty of all charges.

Morgan, J.

Released: October 19, 2016