CITATION: R. v. M.B., 2016 ONSC 6480

COURT FILE NO.: CrimJ(P) 456/14

DATE: 2016 10 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Ferrone, for the Queen

• and -

M.B.

G. Holder, for the Accused

Accused

HEARD: July 25, 26, and 27, 2016

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

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complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

Justice Thomas A. Bielby

INTRODUCTION

[1] The accused is charged that on or about the 7^th^ day of September, 2012, at the City of Brampton in the Central West Region, he unlawfully did commit a sexual assault on M.J., contrary to section 271, of the Criminal Code of Canada.

[2] To this charge the accused pleaded not guilty.

[3] The only witness for the Crown was the alleged victim, M.J. Counsel for the accused called one witness, Dr. Cherepacha, the victim’s family physician.

FACTS

[4] M.J. and the accused are first cousins. When testifying the victim said she was 35 years of age and the accused, almost 40 (years of age).

[5] Around the time of the incident the accused lived with his girlfriend, up the street from M.J., who was living in a home with her two children.

[6] On the date in issue, the accused called M.J. and asked her if he could hang out at her place as he was having issues with his girlfriend.

[7] On that day the victim’s children were having a sleepover at the home of a friend’s.

[8] The accused arrived at M.J.’s apartment, in her words, around mid-day. He brought with him, a bottle of rum.

[9] M.J. testified that she and the accused spent time on the balcony smoking marijuana and drinking. M.J. testified that she had in her possession about two grams of marijuana.

[10] M.J. testified that they were drinking rum and coke and estimated she had two drinks during this time. The accused mixed the drinks. M.J. could not recollect what they talked about describing them as random conversations.

[11] M.J. testified that they were on the balcony for a couple of hours and that when it was darker out they decided to walk to a bar called Oscars. M.J. testified that before they got to the bar, on a scale of 1 to 10, the latter being totally drunk, she was somewhere between 6 and 8.

[12] At the bar the accused bought a pitcher of beer and M.J. testified she had one glass of beer. She testified that they were not at the bar very long, maybe an hour, after which they walked back to her place. M.J. thought they left to go home to eat something. At some point (M.J. could not recall when) they went to a grocery store and purchased some ground beef.

[13] M.J. testified that she could not be sure the beef was purchased before or after their attendance at the bar. She testified the time frame is “a blur”. She could not testify as to where the beef was purchased although there was a No Frills grocery store near her home.

[14] M.J. testified that she could hardly remember the whole day or a lot of it.

[15] On their return to her residence the accused started cooking the meat. M.J. recalls going up to her room and changing her clothes to a top and pair of shorts. She returned downstairs and the accused had made her another drink, which she took with her from the kitchen counter to the couch in the living room.

[16] M.J. testified that she fell asleep on the couch. She recalls that before she fell asleep the accused came over to the couch and sat beside her.

[17] M.J. testified that it was past 11:00 pm when she fell asleep. She also said that she had consented to the accused to stay at her home overnight because of his domestic issues. He was to sleep on one of the couches.

[18] M.J. testified that on the intoxication scale referred to previously, she was a 10 when she fell asleep. She said she was drunk and had not eaten anything that day. She needed to lie down.

[19] M.J. testified that she awoke at some point thereafter and realized she was lying on her back, on the living room floor with the accused on top of her. She testified that the accused was naked and she was naked from the waist down, her shorts and underwear having been removed.

[20] M.J. stated that something woke her up and believed it could have been a “ding” on her cell phone. She said that the accused was, “doing whatever”, and that she did not know what was going on.

[21] She had no idea how she had gotten on the floor with the bottom half of her clothes removed.

[22] M.J. stated that he, the accused, was trying to force himself on her and that he was putting his mouth all over her. His whole body was on hers.

[23] She testified that he put his mouth everywhere and that he was doing oral sex on her. She testified his mouth was on her vagina. She said that is what he was doing when she woke up.

[24] M.J. could not remember the accused doing anything else. She was shocked and confused.

[25] M.J. recalls the accused saying something to the effect of, “Let’s make babies”.

[26] M.J. testified that she asked the accused twice, what he was doing. He stopped whatever he was doing the second time she asked. She testified that the accused acted like nothing was wrong.

[27] M.J. got out from under the accused and went upstairs to her bedroom to put some clothes on and figure out what happened. She testified that it was like a part of a dream, but knew it was real.

[28] M.J. testified that the accused then came upstairs, acting as if nothing was wrong. He asked her if she was alright.

[29] The next day the accused texted M.J. and told her not to tell anyone. She deleted the text because she was extremely upset in regards to what had happened.

[30] M.J. testified that she felt depressed, embarrassed and humiliated and did not tell anyone about what happened until a few days later. She first told members of her family after which she went to the police on September 24, 2012, and the doctor’s on the 25^th^ of September, 2012.

[31] With respect to her reason for going to the police, M.J. said that it would be on her conscience if she did not report it and he did it to someone else.

[32] With respect to the doctor, M.J. said that the doctor took blood samples to test for pregnancy and STD’s.

[33] The police audio/video recorded M.J.’s statement and on cross-examination she agreed that the event was more vivid in her mind at the time she gave her statement.

[34] On cross-examination M.J. testified that she had two to three drinks before going out to the bar and acknowledged that in examination in chief said that she had only two. In her police statement M.J. testified that they got to the bar around midnight and that up till that point she had two to three drinks. She testified that it was actually two drinks and a joint.

[35] At the preliminary hearing M.J. testified that she had two to three drinks and when questioned about this testified that she was not certain if it was two or three drinks before going to the bar.

[36] On cross-examination M.J. agreed that they did not go to the bar until midnight and were at her residence up until that point. She then said she was not sure when they went to the bar, she couldn’t be certain. She did know it was at night-time and acknowledged that at the preliminary hearing said they left for the bar at midnight.

[37] M.J. then said she lost all sense of time. She testified that everything before they went to the bar is foggy. She testified that she misspoke when she said they spent a couple of hours on the balcony and must have been five to seven hours although she has no recollection of the time frame.

[38] On cross-examination M.J. admitted that she could not be sure how much marijuana they smoked as everything was blurry, but noted she never kept much in the house, maybe two grams.

[39] M.J. testified that when she went to the bar she was not fully drunk as she was able to walk to the bar. She admitted in her police statement she said she was “fine” when she left for the bar. In regards to her beer consumption at the bar, M.J. was taken to her preliminary hearing transcript in which she said she may have had two glasses of beer. She testified that she recalls having one beer but could have had two glasses. She remembers only one pitcher of beer.

[40] On cross-examination it was put to M.J. that when giving her police statement she minimized her consumption of alcohol to which she answered, she may have, but not intentionally.

[41] On cross-examination it was pointed out to M.J. that she told the police that they stayed at the bar long enough for one beer and to listen to a girl sing two songs but testified in her examination in chief that they were at the bar for one hour. She again agreed she had no sense of time.

[42] In regards to the time of day they went to the bar, M.J. had agreed with Crown counsel that when they left for the bar it was pitch black out. On cross-examination she testified that she doesn’t recall pitch black but that it was night time. At the preliminary hearing she testified that it was getting dark when they left for the bar and agreed that such a description is different than midnight.

[43] M.J. agreed that she does not remember much about going home. She can’t say how much time went by between getting home and “passing out”. She has a vague memory of coming downstairs after changing her clothes and getting a drink and then lying on the couch. M.J. was certain the accused made this last drink but in her statement she told the police that she could not remember if she or the accused made the drink.

[44] When pressed on the point M.J. said she had a vague memory that the accused made the drink. She said that the accused was the only other person in the house and had to have made the drink because she did not.

[45] M.J. does recall the accused making something (food) on their return to her home.

[46] When asked, M.J. does not recall any discussions about their plans for the rest of the night. She does not recall telling the police that their plan was to watch television. In her police statement she also said she recalls the accused sitting beside her when she fell asleep but in her cross-examination only remembers the accused cooking and that she went to the couch and fell asleep or “knocked out’ almost immediately.

[47] M.J. agreed that the whole evening was foggy and stated the whole night is not clear at all.

[48] M.J. reiterated that she woke up with the accused on top of her and that she had no pants on. It was put to M.J. that in her statement to the police she said her pants were removed but at the preliminary testified that she was wearing very short shorts. She responded that she meant shorts and that her use of the word “pants” was not meant to be specific. Regardless, she has no idea how or when her shorts were removed.

[49] In her examination in chief and during the preliminary hearing, M.J. testified that she was on her back when she woke up. In her police statement she said she was on her stomach when she woke up.

[50] M.J. testified that, three months before the incident, she had hernia surgery and that in September, 2012, still suffered pain and sensitivity in her legs. She denied however that it was the accused’s weight that caused her to wake up. She recalls hearing the phone and awakening with the accused on top of her.

[51] In her preliminary hearing testimony M.J. testified that she thought it was probably 3:00 am to 4:00 am when she woke up as she recalls looking at her phone. At trial she could not recall looking at her phone.

[52] Again, on cross-examination M.J. reiterated that when she awoke the accused was on top of her doing sexual things; he was having oral sex with her.

[53] In her police statement M.J. said that the accused was not engaged in oral sex when she woke up. She testified that she did not know what was going on and she was confused.

[54] As she became more aware she said she knew he was violating her and that he was down there (her vagina) and saying weird things.

[55] M.J. acknowledged that she did not tell the police about the accused saying anything. When asked about telling the police that she was on her stomach she testified, I was on my back or he turned me over and that he was on me.

[56] During her testimony at trial, the preliminary hearing and in regards to her police statement, M.J. provided different estimates of time as to how long the accused was engaged in oral sex. She admitted again she had no concept of time.

[57] M.J. agreed that she did not go to her doctor, Dr. Cherepacha, until after attending at the police station. Although she had had her period after the incident and before her doctor’s appointment the doctor conducted a pregnancy test as well as a test for STD’s. She testified that the accused was not wearing a condom.

[58] It was put to M.J. that she told the doctor she was raped, to which she responded that she told him what happened and doesn’t know what the doctor wrote down.

[59] M.J. agreed that she did not tell the police that there was any vaginal penetration because she wasn’t sure and again stated he was naked and on top of her with her pants off.

[60] M.J. conceded that she told the police that the accused may have put something in her drink. It was an explanation for why she was not able to recall much.

[61] M.J. was cross-examined on part of her statement to the police wherein she said that when the accused came upstairs after the incident he asked her if she wanted to say anything. M.J. distinguished this from the accused later telling her and messaging her not to say anything. She believed in the bedroom he was inviting her to talk about what occurred.

[62] M.J. agreed she should not have deleted the text message and that she was told by the police that the police tech division may be able to recover the text. To do so M.J. would have to surrender her phone to the police and told the police that she would think about it.

[63] M.J. never surrendered her phone to the police and when asked by defence counsel why she did not hand over her phone she said, “I just didn’t” and that she did not feel at the time that it was necessary. On re-examination she testified that had she given her phone to the police she was told they would have to hang on to it for months.

[64] On cross-examination M.J. agrees that she doesn’t really remember much and that everything is blurry. She again described herself as being knocked out. She can only remember bits and pieces. She described what happened as being knocked out for surgery and then waking up in another room.

[65] M.J. testified that when the accused went up to her bedroom he again tried to lie on top of her. She agreed that at the preliminary hearing she did not disclose this attempt to again lie on top of her. She testified that the accused when he was upstairs, said he was sorry and told her not to tell anyone.

[66] M.J. told the accused to get out and after a short while he left. She again testified that he was acting like everything was normal. She said that he left not too long after 4:00 am but also said the sun was coming up when he left.

[67] On cross-examination M.J. agreed that she has no recollection of the accused having sex with her. She doesn’t remember.

[68] It was suggested to M.J. that it was the interviewing police officer who first used the word vagina, asking her if the accused was licking her vagina. The implication is that the story of oral sex was suggested by the officer. This suggestion was rejected. M.J. testified that she was embarrassed about talking about what happened and that before the word vagina was used, she told the officer, “He was trying to put his mouth down there.”

[69] The accused called as his only witness Dr. Cherepacha who M.J. saw on September 25, 2012. He testified that M.J. had had hernia surgery and the appointment was in regards to some ongoing issues in that regard.

[70] The doctor testified that during the interview M.J. broke down in tears and he asked her what was bothering her. His notes read that on September 7^th^ she was raped by her cousin. A discussion ensued and as noted, blood tests were ordered. He also noted that she told him she went to the police a week after the incident (she actually went to the police the day before her doctor’s appointment).

[71] On cross-examination the doctor agreed that M.J. may not have used the word “rape” and that it may have been his paraphrase. It was possible that she told him that she woke up with her cousin on top of her and that on that basis he ordered the tests.

[72] The doctor testified that when he makes his notes he does not write down, word for word, what is said and that he does not get too literal. He testified that he does not distinguish in his notes whether a patient thinks something happened or knows that it happened.

ARGUMENT

Defence

[73] Counsel for the accused submits that in regards to the evidence of M.J., credibility and reliability is pivotal. He provided to the court the decision, R. v. M.G. 1994 CanLII 733 (C.A.) and the discussion of inconsistencies in testimony. From paragraph 27 I quote,

“Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected…But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth.”

[74] At paragraph 32 of the M.G. case the appeal court recognizes that appellant courts are deferential to the trial judge’s credibility assessments as it is the trial judge who sees and hears the witnesses. The court then refers to the decision in Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at pp. 356-357, where in part O’Halloran J.A. of the B.C.C.A. wrote,

“The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those circumstances.”

[75] Counsel submits that M.J. testified that she doesn’t remember much but then goes on the make statements of fact which are often inconsistent with other testimony or statement. An example of this is in regards to how much she had to drink at her home and at the bar. Another is in regard to whether she was wearing pants or shorts when the incident occurred.

[76] It is submitted that M.J.’s evidence with respect to time-lines is completely unreliable as to how long they spent on the balcony or when they went to the bar. The victim initially said they were on the balcony for a couple of hours when in fact if they went to the bar at midnight they must have been at her home for hours. At one point the M.J. testified they got back to her home after the bar around 10:00 pm to 11:00 pm.

[77] M.J. testified that she believes the accused made the drinks after their return but then testified she could not be sure.

[78] She was unsure if when she passed out the accused was in the kitchen cooking or on the couch beside her.

[79] Her evidence as to the actual sexual act being committed was unclear. When she woke up was the accused engaged in oral sex or was that after she woke up?

[80] Was M.J. on her back or on her stomach when she woke up? Counsel submits this inconsistency is critical.

[81] Further, M.J. did not tell the police in her statement that the accused said to her, let’s make babies.

[82] It is submitted that the victim when speaking to the police and her doctor minimized the amount of alcohol that she consumed in contrast to the amount she must have consumed, along with marijuana, to be so drunk.

[83] Counsel for the accused submits there is no evidence that anything was put in the victim’s drink, at any time.

[84] Counsel for the accused notes that M.J. waited a significant period of time before reporting the matter to the police and seeing the doctor.

[85] Defence counsel also points out that M.J. deleted the accused’s text, which would be the only corroborating evidence if, in fact, the accused, in the message, apologized and told the victim not to say anything.

[86] Counsel for the accused submits that in reality and, as admitted by M.J., she does not remember what happened that night. There are compelling issues as to credibility and that the crime of sexual assault has not been proven beyond a reasonable doubt.

[87] Counsel submits his client ought to be found not guilty.

Crown

[88] The Crown submits that on the totality of the evidence that the crime of sexual assault has been proven beyond a reasonable doubt.

[89] The inconsistencies in the evidence of M.J. are in the details or peripheral matters and in that regard Crown counsel directs the court to paragraph 27 of the M.G. case, which reads,

“Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matter or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness…But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth.”

[90] It is submitted that the victim acknowledged she did not have much recollection and was trying her best. She was not overly defensive.

[91] It is submitted M.J.’s core story never varied. She repeatedly said that she woke up with her pants or shorts removed and the accused was naked and lying on her. Whether at the time she woke up or just afterwards the accused had his mouth all over her and performed oral sex on her.

[92] Crown counsel submits that, immediately after the incident, the victim was too embarrassed and humiliated to tell anyone what happened.

[93] While recognizing demeanour evidence must be considered with some caution Crown counsel asks the court to take into account the emotion expressed by M.J. and the times when she broke down crying. It is also noted that she also broke down when meeting with her doctor.

[94] There is no evidence of any reason M.J. would fabricate such allegations. There is no evidence of animus. The day started with the accused and M.J. hanging out and the accused being allowed to stay at M.J.’s home that night because of a domestic issue.

[95] Crown counsel submits that M.J.’s evidence is credible and reliable in regards to what happened and ought to be accepted. The accused should be found guilty of the crime of sexual assault.

ANAYSIS

[96] This case is all about an assault, a sexual assault. In most cases of sexual assault only two people really know what happened, the victim and the accused. While I recognize the importance of inconsistencies in testimony and the defence’s argument in regards to M.J.’s delay in reporting to the police and attending at her doctors, in assessing the evidence of any victim/witness in matters of sexual assault, other considerations are in play, as noted by Zuker J. in R. v. Ururyar 2016 ONCJ 448.

[97] Zuker J., at paragraph 374 wrote, “It is well documented that non-reporting, incomplete reporting, and delay in reporting are common in cases of sexual abuse.”

[98] In regards to the evidence of Dr. Cherepacha, while I do not doubt his evidence, it does not lead me to any conclusions which would assist the accused. It does not raise a reasonable doubt. The doctor conceded that his use of the word “rape” in his notes could have easily have been his interpretation of the facts conveyed to him by M.J.

[99] The same can be said for his notation as to when the victim contacted the police. Even if that is what he was told by the victim the inconsistency in my opinion is minor in nature and not in regard to a material fact.

[100] Finally, the doctor confirmed that M.J., when discussing the alleged assault, was very emotional and crying, as she was, at times, when testifying.

[101] In regards to the evidence of M.J., there is no evidence that the accused put anything in M.J.’s drink. I accept that she likely had more to drink than she disclosed. When she left the bar, by her own admission, she was drunk, a 10 out of 10 on the inebriation scale put to her by the Crown. M.J. readily admitted that, with respect to details, she remembers very little about that day. She could not provide a proper time line or even tell us when she and the accused went food shopping.

[102] The deletion of the text message is a detail which in hindsight is more important than M.J. realized at the time. It was likely received later on the day of the assault and I accept that M.J. felt embarrassed and humiliated and wanted to forget what had happened. The deletion of the text message occurred before she decided to report the matter to the police.

[103] Cleary on her cross-examination, M.J.’s memory was fallible and malleable. She often agreed with what was suggested by defence counsel to such details as to time lines or amounts of alcohol. She agreed that she provided details at the preliminary hearing and the trial that she did not disclose to the police.

[104] She had difficulty in her memory reconstruction and her evidence regarding many of the details of that day is unreliable. She admitted much of the day is a blur to her.

[105] That is not to say, however, that her evidence lacks credibility. I find her to be a credible witness despite the inconsistencies which, for the most part, were either minor or in the nature of, “matters of detail”. Such inconsistencies do not lead me to believe she was trying to mislead the court or that her evidence was fabricated.

[106] Examples of such inconsistencies are whether she had two or three drinks, whether they left for the bar at midnight or arrived at the bar at midnight, or whether she was wearing pants or shorts. Such inconsistencies are the result of her level of intoxication.

[107] The largest inconsistency, in my opinion, is with respect to the position M.J. was in when she awoke, after falling asleep on the couch. She told the police she awoke on her stomach whereas at the preliminary hearing and at trial it was her evidence that she was on her back when she woke up.

[108] When the inconsistency was put to M.J., she testified that she recalls she was on her back when she awoke but, if otherwise, the accused turned her over. While significant, the victim’s credibility is not impeached. I see it as a memory fragmentation, resulting from her level of inebriation.

[109] What is most important is the gist or the core of what happened that night, and in that regard M.J.’s evidence did not waiver. She awoke, on the floor with her pants (or shorts) and underwear removed and the accused was naked and on top of her. She repeated this recollection numerous times during her testimony, and when she did she was often very emotional and brought to tears, at times sobbing to such an extent that suggests she suffered a significant trauma. She vehemently denied any suggestion that, what she alleges to have happened did not occur. In reaching this conclusion I have had regard to the dangers of relying too heavily on demeanour evidence.

[110] I also note that there was no suggestion of a reason, that is, a motive, for M.J. to fabricate this evidence. While not an essential element it is a factor to be considered.

[111] I accept M.J.’s evidence that when she awoke, she was on the floor without her pants (or shorts) and underwear and the accused was naked and lying on top of her. I accept that the accused had his mouth all over her body, including her vagina. The inconsistencies with respect to the details of what occurred before or after this do not raise a reasonable doubt.

[112] In law, an assault is the application of force without the consent of the victim. It becomes a sexual assault when the force that is applied took place in circumstances of a sexual nature.

[113] In my opinion the mere fact the accused was lying naked on top of the victim whose pants (or shorts) had been removed is an application of force of a sexual nature. The weight of his body would constitute an application of force and the lack of clothing leads to the conclusion that the assault was sexual in nature.

[114] The fact the accused had his mouth all over her enhances the sexual assault.

[115] I believe the evidence of the victim and conclude, beyond a reasonable doubt, that a sexual assault took place and find the accused guilty as charged.

Bielby J.

Released: October 18, 2016

CITATION: R. v. M.B., 2016 ONSC 6480

COURT FILE NO.: CrimJ(P) 456/14

DATE: 2016 10 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

M.B.

REASONS FOR JUDGMENT

Bielby J.

Released: October 18, 2016