R. v. D.A., 2016 ONSC 6521
COURT FILE NO.: CR-15-30
DATE: 2016-10-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Keen, for the Crown
- and -
D.A.
Christopher Avery, for the Accused
Accused
HEARD: September 6, 7 and 8, 2016,
at Kenora, Ontario
Mr. Justice W.D. Newton
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons For Judgment
Overview
[1] D.A. is charged with sexually assaulting T.T. contrary to section 271 of the Criminal Code of Canada. D.A. admits that he touched T.T. in a sexual way. The issue in this trial is whether T.T. consented to the sexual contact.
[2] Both D.A. and T.T. testified as did an investigating OPP officer and a sexual assault nurse. Transcripts of two versions of WhatsApp communications between D.A. and T.T. were filed as exhibits. Photographs of a torn bra belonging to T.T. and injuries to T.T.’s neck were also filed as exhibits.
Facts and Evidence
[3] Some facts are not in dispute.
[4] D.A. and T.T. are nurses who worked under contract at remote First Nation communities. They met a few months before April 2014 when both were working in one community. In April 2014, D.A. was working in another community. T.T. was also scheduled to be in that community and arrived about one week before the alleged assault. Prior to her arrival, she communicated with D.A. using WhatsApp. They describe each other as friends but did not socialize unless working in the same community.
[5] This community had a nurses’ residence attached to the nursing station. D.A. had his own apartment. T.T. shared an adjacent two bedroom unit with another female nurse.
[6] Although this community was a “dry” community, D.A. had smuggled in alcohol and T.T. and D.A. had discussed T.T. coming to D.A.’s apartment for drinks one night by WhatsApp. T.A arrived at D.A’s apartment around 8:30 p.m. on April 22, 2014. Both consumed some alcohol. They watched some TV together.
Testimony of T.T.
[7] T.T. testified that D.A. was drinking alcohol when she arrived and that D.A. had about four drinks while she was there. She arrived and was offered a drink. D.A. was sitting on a chaise lounge. T.T. was sitting on a two-seat loveseat.
[8] Later, D.A. sat down on the loveseat beside T.T. and offered her a neck massage. She declined and testified that then D.A. moved his hands to her lower back and placed them under her shirt. She said that she did not say anything in response but got up and went to the bathroom. In examination in chief she said that the touching “…felt like it was an eternity, but it was not that long” and later that “it was probably a few seconds that he had his hands there. Not enough to move them or anything.” In cross-examination she was confronted with her statement to the initial investigating officer in which it was recorded that “it felt like approximately five minutes, but was probably shorter because it felt like an eternity.”
[9] When she returned from the bathroom, D.A. had moved back to the chaise lounge. She testified that within 20 to 30 minutes D.A. had passed out and was snoring. She said that she got up to leave a few times but each time he “rustled” and, because she did not want any continuation of his advances, she returned to the couch. On her last attempt to leave, D.A. awoke and she told him that she was leaving. He followed her to the doorway where she was putting on her shoes. She turned to face him and he grabbed her by the arms. She thought he was “just playing around” and she responded “do not mess with me, I’m stronger than you.” She said that he responded “no you are not” and grabbed her upper arms and walked her backwards into the bedroom and pushed her onto the bed. While still holding her by the arms he climbed on top of her and she said to him “seriously you need to get up off of me.” He did not and then fondled and kissed her. She said that he put his hands up her shirt and fondled her breasts underneath her bra. She said he also tried to put his hands down the front of her pants but was unable to get very far because the drawstring on her pants was tied tightly. She confirmed that his fingers did not penetrate her vagina. She was wearing a tampon at the time.
[10] She testified that she was able to get one arm loose and punched D.A. with a closed fist as hard as she could and that when he moved back she crunched up and bit him either on the arm or shoulder or neck. In return he did something that caused her to feel sharp pain on her neck and she screamed and he then let her up. She testified that she ran out of that room and back to her apartment where she started to cry. She contacted a friend. She thought that she had returned to her apartment around 12:30 a.m.
[11] T.T. wears glasses and testified that her glasses were knocked off during this incident and that she got them back the next day.
[12] Initially she was uncertain whether she should report this incident and spoke to some friends and her supervisor. The next evening she and her supervisor spoke to the NAPS police officer stationed in the community. T.T. took photographs of her bra that was torn in this incident and of a mark on the side of her neck. She testified that the police officer was trying to convince her not to press charges because this would have a significant impact on D.A.’s career. She did provide a statement but did not believe that the officer had recorded all of her information accurately.
[13] After speaking to the officer she spoke to another supervisor at her agency who recommended that she report this incident to the Ontario Provincial Police. She was then medevaced out to Sioux Lookout where she was assessed by a nurse and spoke to an OPP officer. She turned over her torn bra to that officer. She filed a complaint against the NAPS officer for failing to properly investigate her complaint. She said that she had offered her torn bra and her phone containing the photographs and the WhatsApp conversation to the NAPS officer but he had declined to receive this evidence.
[14] The day after the alleged assault T.T. had sent messages to D.A. via WhatsApp which are reproduced here:
5:12:26PM T.T.: what u did last night was not cool
5:13:24PM T.T.: I told u in Kash that one night and last night and u didn’t listen to me at all last night
5:16:21 PM D.A.: My bad … One night in Kash?
[15] The next day, April 24, they had the following exchange:
4:20:06PM T.T.: Did u see my glasses at ur place
4:24:59PM D.A.: Ummm I’ll have to look again when I get home or u cud just go in nd check if you like?
4:24:37PM T.T.: Ok
4:25:47PM D.A.: K
4:54:21PM D.A.: U find them?
4:54:27PM T.T.: Ya
4:54:59PM D.A.: Kk
7:54:28PM D.A.: Hey can we talk when u less busy?
[16] In cross-examination she denied deleting or altering the WhatsApp messages.
[17] She was also cross-examined about how D.A. could pin her down and fondle her at same time.
Testimony of D.A.
[18] D.A. is 5’5” tall and weighs about 190 pounds.
[19] He testified that when T.T. arrived she made her own drink and then sat down beside him on the loveseat. He said that she was talking about being stressed, tense, and that she would like a massage. He offered and she accepted. He massaged her upper back and shoulder area over her shirt for five to ten minutes. The massage ended when she went to use the washroom. D.A. testified that he returned to the chaise lounge because it was more comfortable. When T.T. returned from the washroom she sat on the couch.
[20] He denied passing out and said that the evening ended with them both agreeing that they were tired and that they “should call it a night.” He escorted her to the door and he testified that she turned around and shoved him in a playful way. He described their conditions as “tipsy.” He said that T.T. said that she was stronger than he was and he responded that she was not and gave her a shove back. In response, T.T. put her hands on his waist and he put his arms around her shoulders. He said that they were play fighting. He said that she then wrapped one of her legs around his and they fell down with him landing on his back with her on top of him. At that point, T.T. kissed him. He testified that he was surprised but kissed her back and then began to fondle her buttocks and then put his hands underneath her shirt to feel her breasts. He said that he was not rough and that this activity continued for about 10 minutes. It ended when he turned his head away. He said that he was thinking about his girlfriend and just wanted to “take it easy.” He says that he was not rough and does not recall anything happening that could have damaged her bra.
[21] He denied sustaining any injury to his face and denies that he was bitten. It is admitted that there is no mention of any injury to D.A. in the original officer’s notes. D.A. has very dark skin. He does not know what might have caused the red mark on T.T.’s neck.
[22] He explained the “my bad” comment as him apologizing for her embarrassment since he discontinued the sexual activity. He testified that T.T. was wearing her glasses when she left and does not know why she was texting him about her glasses later.
The WhatsApp Transcripts
[23] Both T.T. and D.A. produced printouts of the WhatsApp conversation. The following entries were missing from T.T.’s transcript:
2014 – 04 – 20, 8:38:50 PM T.T.: I’d rather have a drink with u
2014 – 04 – 20, 8:4458 PM T.T.: Sounds good u think u can save enough until then
2014 – 04 – 20, 8:44:59 PM T.T.: Lol
2014 – 04 – 20, 8:54:12 PM D.A.: Oh yeah no p …Lol
2014 – 04 – 20, 9:02:55 PM T.T.: K
[24] There is also missing entries at 2014 – 04 – 20 commencing at 9:06:50 p.m. and continuing to 9:12:19 p.m. in which T.T. and D.A. communicate about issues with T.T.’s former partner.
The Damaged Bra
[25] T.T. gave the damaged bra to the OPP officer who interviewed her in Sioux Lookout. That officer turned it over to the NAPS detachment where T.T. first reported this incident. The damaged bra could not be located. However, T.T. had taken photographs of the damaged bra. The damaged bra is partially mesh and partially cloth. A tear is noted in the mesh. I am not able to determine the length of the tear from the photograph.
The Sexual Assault Nurse Examination
[26] On April 25, 2016 T.T. was examined and photographs were taken. The photographs depict an abrasion to the left side of her neck. The nurse described the injury as “red linear area noted L – 2 cm W – ½ cm - tender with palpation.” “I think he bit me there.” No other injuries were observed.
Positions of the Parties
[27] The Defence argues that T.T. it is not credible and points to the inconsistencies in her testimony as opposed to her prior statement and the absence of any injury to D.A. The Defence also argues that T.T. has misled the court by deleting portions of the WhatsApp communication. The defence relies on R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[28] The Crown argues that T.T. is credible because her testimony is internally consistent and is corroborated by the torn bra, the “my bad” comment, and the search for her glasses after this incident.
The Law
Credibility
[29] In this case, issues of credibility are clearly paramount.
[30] In R. v. L. (G.), 2015 ONSC 385, Quigley J. made the following observations at para. 36, which are relevant to the task before me:
Assessment of Credibility and Reliability
36 Sexual offences are almost always perpetrated in private, as they were here, with only the complainant and the alleged offender present. Thus, proof to the criminal standard inevitably will fall to be decided primarily on the credibility of the complainant and the accused. However, reliability is also critical to consider as well as credibility. Contradictions in the evidence must be assessed. This will be particularly true where the Crown’s case depends solely on the generally unsupported evidence of the complainant and where the principal issue is her credibility and reliability. Corroboration is not necessary, but when there is only the evidence of the complainant and the accused, it is not surprising that in the absence of some confirmatory or supportive evidence of the allegations by the complainant, there have been numerous cases reported where it has proven difficult for the Court to conclude beyond a reasonable doubt that the Crown has proven the offence to the required criminal standard.
[31] Quigley J. also referenced the decision of R. v. M. (A.), 2014 ONCA 769, in which Watt J.A. reviewed the principles that are relevant to assessing the evidence of witnesses in these cases at paras. 12 to 14:
12 Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C.(3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
14 Fifth, A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.
The R. v. W. (D.) Analysis
[32] The evidence must be assessed as instructed by the Supreme Court of Canada in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I believe the accused I must acquit. If I do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole, I must acquit. Finally, even if I am not left in doubt by the evidence of the accused I still must consider whether, based on the evidence that I do accept, I am still convinced beyond a reasonable doubt of the guilt of the accused.
[33] This is not a credibility contest between D.A. and T.T. This is about whether the Crown has proven the essential elements of the offence beyond a reasonable doubt and is not about which witness is more credible.
[34] As Fairburn J. stated recently in R v. M.M., 2016 ONSC 5027 at paragraph 43:
Notwithstanding the fact that it is not a credibility contest, an accused’s evidence can be rejected when “stacked” beside other evidence. As Doherty J.A. noted in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37, at para. 53: “An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.” This legal principle was recently reinforced by Laskin J.A. in R. v. R.D., 2016 ONCA 574, at paras. 7, 15-19. As Laskin J.A. explained at para. 19, in rejecting an accused’s outright denial, the trial judge must be “convinced that the conflicting credible evidence” establishes the accused’s guilt beyond a reasonable doubt. [Emphasis added]
Analysis and Disposition
[35] On the evidence, I am satisfied that T.T. deleted the messages referred to in paragraphs 23 and 24 above. Some of the deleted passages show a willingness on her part to have a drink with D.A. Some of the deletions are irrelevant. She testified, however, that she did not make any deletions. Therefore, I must approach the balance of her evidence with increased scrutiny.
[36] Nevertheless, I do not regard the apparent inconsistency in her testimony over the length of the massage alone as detrimental to her credibility. Similarly, I do not find her description as to how the fondling occurred detracts from her credibility. I do not expect that a complainant in a situation like this would have perfect recall about how her arms were pinned and how the sexual assault occurred. I also do not find the fact that she retrieved her glasses on April 24 rather than April 23 material.
[37] Both witnesses testified in a straightforward fashion. Although demeanor should never be the sole factor in determining credibility, nothing in the demeanor of either the accused or the complainant causes me concern.
[38] Corroboration is never required but the ripped bra is some corroboration of the complainant’s version of the events. The ripped bra is more consistent with an unwanted assault than D.A.’s assertion that this was a gentle fondling.
[39] The fact that T.T. was missing her glasses and that D.A. granted her permission to search his apartment is supportive of T.T.’s evidence that she left his apartment without her glasses. It is not consistent with D.A.’s evidence that she left his apartment wearing her glasses.
[40] The WhatsApp communication after the incident is telling:
5:12:26PM T.T.: what u did last night was not cool
5:13:24PM T.T.: I told u in Kash that one night and last night and u didn’t listen to me at all last night
5:16:21 PM D.A.: My bad … One night in Kash?
[41] This is consistent with the complainant’s assertion that there was nonconsensual sexual touching. I do not accept D.A.’s assertion that the “my bad” comment was made because he was sorry that T.T. was embarrassed that he disengaged from sexual activity.
[42] Accordingly, I reject D.A.’s evidence when it is in conflict with T.T.’s evidence. I am satisfied that the evidence I do accept establishes that the accused is guilty beyond a reasonable doubt.
[43] As requested by counsel, this decision is released in writing. Counsel may attend assignment court in Kenora October 24, 2016 at 2:00 p.m. by teleconference to set a date for sentencing submissions.
The Hon. Mr. Justice W.D. Newton
Released: October 19, 2016
CITATION: R. v. D.A., 2016 ONSC 6521
COURT FILE NO.: CR-15-30
DATE: 2016-10-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Plaintiff
- and -
D.A.
Accused
REASONS FOR JUDGMENT
Newton J.
Released: October 19, 2016
/sab