R. v. D.M., 2016 ONSC 7224
COURT FILE NO.: 14-96
DATE: 2016/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 (both victim and accused) OF THE CRIMINAL CODE OF CANADA DATED OCTOBER 8, 2013 BY HIS WORSHIP LEGAULT.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.M.
Respondent
Matthew Collins, counsel for the Crown
Frank Horn, counsel for the Respondent
HEARD: September 12, 13, 14, 15, 16, 2016
reasons for judgment
LACELLE, J.
Introduction
[1] The accused is charged with threatening death to the complainant, B. M., and sexually assaulting her. These events are alleged to have occurred on an island in the St-Lawrence River where the accused’s family has a cottage. While it is common ground that the accused and the complainant had agreed to meet for a boat ride, the complainant says the accused took her to the island without prior discussion of this plan.
[2] There is no dispute that the accused and the complainant had sex. The accused says that the sexual contact with the complainant was initiated by her, and she was an eager participant. He denies any threats were made to secure her consent to performing sex acts upon him.
[3] The issues in this case are whether the Crown has proved beyond a reasonable doubt that the sexual activity occurred without the complainant’s consent, because the accused threatened to kill the complainant if she did not have sex with him. This turns on the court’s assessment of the credibility and reliability of the evidence heard.
Overview of the accounts given by the complainant and the accused
[4] The complainant and the accused had known each other for some time before the date of the alleged offences. They give a common account of their previous relationship. In brief, they met through a mutual friend after the complainant had moved to the Cornwall area. The complainant has a history of various problems that left her without a place to stay at times. At one of those times, the complainant stayed at the accused’s apartment for about a month. The accused helped her find an apartment, and was a support for the complainant for some time. She credits him with saving her life on one occasion because he called police and 911 after she had overdosed.
[5] The parties both agree that the relationship soured after events on March 4, 2013, which happened to be the complainant’s birthday. The complainant says she went over to the accused’s apartment with a young 15 year old friend. It was not unusual for her to drop by. After the accused had fed them all french fries, she says she asked if they could stay the night as she was again without a place to stay. When the accused suggested that they could only stay if they stayed in his bed, she decided to leave. At this point, she says the accused took a shovel from the near the doorway, and hit her with it. This caused her to fall down the stairs outside his apartment.
[6] For his part, the accused agrees that the complainant came to his place in the company of a 15 year old girl on March 4. He says the complainant essentially offered herself and her young friend to the accused in a sexual fashion. He says he was disturbed by this, and told her to leave. He took her by the arm and shoved her out the door. At this point, her legs got caught up in a shovel near the doorway and she fell down the stairs. Neither party called the police.
[7] After this evening, there was another incident between the pair. Both agree that they had an altercation in the parking lot after an AA meeting they had both attended. Both agree that the argument arose because the accused confronted the complainant about her comments to one of his employees at his roofing company. The complainant says that during this incident, the accused threatened to kill her. She adopted a martial arts stance she had learned as a kick-boxer. The accused agrees that during the altercation the complainant adopted a martial arts stance, but denies that he threatened her in any way. He also says that the complainant threatened him that she would “get even with him”, and that she would “use the law” to do so.
[8] The pair had little if any contact after that. They met again on August 10, 2013. They do not agree about why they met up, or what happened that night.
The events of August 10
[9] The complainant says she received a phone call from the accused at about 8:30 p.m. while she was at an AA meeting with her then boyfriend, P.L.. The accused proposed that she join him for a boat ride. Since the complainant wanted to be able to move beyond their issues and “make amends” as she was taught in AA, she accepted. At the time, she was living with P.L., and was pregnant. She asked P.L., to drive her to the marina where the accused would pick her up. She admits she deceived P.L. about her plans, as she told him she was meeting a friend, and not the accused.
[10] When she arrived at the marina, the complainant thought she was going for a boat ride. She had no further discussion with the accused in the boat, except as it related to turning off her cell phone because the accused found it too bright. She said he didn’t tell her where they were going when she asked. He drove her to an island in the St-Lawrence River near Cornwall, and brought her into a cabin. The accused’s nephew S.M. was in the cabin. The three of them sat at the table in the cabin and socialized. The accused and his nephew each had a beer. S.M. was also smoking a joint, and the complainant had a few puffs.
[11] The accused’s nephew S.M. left after about 15 minutes. At that point, the accused got on the bed and said “come on, you’re having sex with me”. The complainant told him no, and said she was in a relationship and had a boyfriend. The accused angrily said she would have sex with him, or he would kill her. She said he repeated a few times that he would kill her. The complainant said that because the accused had beaten her up with a shovel on her birthday, she thought he might hurt her again. Because she was afraid of him, at his direction, she performed oral sex and had intercourse with him. She says she cried throughout the whole thing. Because she did not want to see him, she had intercourse with him facing away from him. After it was over, she left the cabin without her pants and underwear, which had been removed by the accused while she was in bed with him. She went and sat on the dock where they had arrived in the boat. She cried, and called 911. She did not know where she was, or how she could get off the island. Eventually, after she went to another cottage on the island to get assistance in describing where she was to the 911 dispatcher, the police arrived.
[12] The accused has a different account of events. He says that the complainant texted him the afternoon of August 10th, suggesting that they get together to celebrate his birthday, to make amends, and to have a good time. He says she texted him again later, saying “let’s get laid”. During that day, he was out in his boat with his friend W.S. and W.S.’s girlfriend, and they stopped in to see another friend. It was while they were there that the complainant texted him, and then called him on his cell phone to find out where she should meet him. At this point, the accused told the complainant he would take her for some “river therapy” and they would go to his family’s cottage. He thought she needed the river therapy because at some point during their telephone call the complainant had told him that she was pregnant with P.L.’s child, and that P.L. was going to kick her out. The accused said he had a “pretty good feeling” they would have sex when they were at his family’s cottage.
[13] The accused says he met the complainant at a marina in Cornwall, and she got on the boat as his friend W.S. and his girlfriend got off. It took about a half hour for them to reach the island where his family’s cottage was located. Once at the island, his nephew S.M. came out to help them dock the boat. They all proceeded into the cottage, where the accused had a beer, and S.M. and the complainant smoked marijuana. He says that upon entering the cottage, the complainant took off black spandex pants that she was wearing, leaving her wearing a stretchy top that could be pulled down and used as a skirt. At some point, he says the complainant went over to one of the beds in the cabin, bounced on it, and said “this is going to be fun”. This prompted S.M. and the accused to look at one another, and S.M. said he was “outta there”, and left.
[14] At this point, the accused testified that he said he was going to bed. He got undressed, and into the bed. He says the complainant then came over to him, and after taking off her bikini bottoms and leaving them on the floor of the cabin, got into bed, under the covers. He says they had no discussion about engaging in sexual activity, or anything else. He says the complainant started to perform oral sex on him. She then got on top of him and inserted his penis into her vagina. She faced away from him when she did so.
[15] The accused says the complainant was in control of the sexual acts, and that during the sexual activity he did not participate. He said he just lay there, and she pinned him to the bed. He testified that he could not have stopped the complainant if he had wanted to, because her weight was fully on him. The encounter ended when he had an orgasm, and fell asleep. He says the complainant told him she was going outside before he fell asleep. When he woke up, he was shocked to find the police were in the cabin. He said he did not know why they were there. He was arrested at that time by police.
The positions of the parties
[16] Counsel for the defence argues that the complainant is incredible, and suggests she has fabricated the allegations. He says the accused’s account should be believed. He strongly emphasizes the accused’s history with the complainant as a friend who helped the complainant in various difficult circumstances. He says the account given by the complainant of a man who would force sex upon her is inconsistent with his history in their relationship of doing nothing but help her. He says the sexual acts described by the complainant don’t make sense on a non-consensual scenario, pointing out that the complainant was the dominant actor in the sexual activity. He argues that the complainant’s account of being forced into the acts by fear makes no sense because the accused had only ever been good to her. He further points to the fact that there is no independent evidence of her account of the alleged incident on March 4th. He says the accused and complainant both knew they were on the island to have sex, and he suggests that if the complainant was really frightened of the accused, she never would have agreed to go on a boat ride with him. He further argues that the evidence suggests that the complainant manipulated the scene of the alleged offence, by returning to the cottage and turning off the light and placing her underwear underneath the accused while he was asleep. He suggests her texts at the cabin to P.L. implicating the accused in concerning conduct were “fishy”, and intended to get P.L. to call the police on the accused. He argues that the fact the complainant told the police upon their arrival on the island that the accused’s DNA would be on her underwear shows that she was helping the police to put together a case against him. With respect to the 911 tape, the defence questions whether the complainant’s sobbing and weeping is the product of fear, or her previous marijuana consumption. Ultimately, he says the Crown’s case must fail on the W.D. analysis, and that it has not met its burden in adducing credible and reliable evidence capable of dislodging the presumption of innocence that applies to the accused. In the end, he argues the accused should be believed, but if not, that the court should have a reasonable doubt about what transpired.
[17] The Crown argues that the evidence of the accused should be disbelieved, and that the court should further find that his evidence and the additional evidence called by him does not raise a reasonable doubt. In this regard, he highlights the internal contradictions in the accused’s evidence and the manner in which it is contradicted by other witnesses. He suggests the accused testified in a way that involved unnecessary commentary on the complainant’s character and motivations, that his demeanour while testifying in cross-examination became evasive and confrontational, and that the accused’s criminal record does not assist his credibility. The Crown submits that the evidence of the complainant should be believed. He argues she was a fair witness who conceded facts that portrayed her in a negative light. He emphasizes that she provided a lot of reliable detail about what occurred, that she was not shown to be inconsistent in her account, and that her evidence was corroborated in significant ways. In particular, he says the 911 tape confirms her demeanour in the aftermath of the assault, and shows how she was frightened, panicked and confused. Her demeanour afterwards was confirmed by the police and P.L., all of whom observed her to be upset or distraught. He points to the fact that she left the cabin without her underwear, went to the dock, and called 911. He says this shows that the complainant’s mind was focused on getting away from the accused, which is consistent with her account. He argues the inconsistencies in her evidence and that of other witnesses is to be expected, and is not a reason to reject her evidence. He suggests there is an “island of inconsistencies” in a sea of consistent evidence, and in the end, the complainant’s account should be believed.
The legal principles
General principles
[18] In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.
[19] In a case like this, where the accused has testified and presented evidence, the case of W.D. directs the court in its approach to the evidence. In summary, it tells me that if I believe the accused’s evidence, or it leaves me with a reasonable doubt after I have considered it in the context of all the evidence called at trial, he must be acquitted. In a case like this, then, my assessments of the credibility and reliability of a witness’s evidence are particularly important.
[20] It is important to note, however, that in deciding a case, a judge is not comparing each account and deciding which account to believe. It is also important to note that a judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all of the evidence.
[21] Further, even if a judge disbelieves the evidence given by an accused person, or is not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proved its case. A judge must always determine based on all the evidence called whether the Crown has proved each element of every offence charged beyond a reasonable doubt, because there is evidence that the judge accepts that supports each element the Crown is required to prove.
[22] Our law has developed in this way because of the jeopardy accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which he is charged. If the evidence is not strong enough to show with that degree of certainty that the accused committed the offence, the accused must be acquitted.
Demeanour evidence
[23] The issue of demeanour evidence has been raised in this trial, and it is helpful to review the principles that apply to this kind of evidence. The court is mindful of the reasons for caution in considering demeanour evidence. As summarized by Fairburn J. in R. v. M.M., [2016] O.J. No. 4243 at para. 59, “[w]hether demeanour is related to in-court or out-of-court behaviour, it can be easily misinterpreted. As noted by Rosenberg J.A. in R. v. Levert, 2001 CanLII 8606 (ON CA), [2001] O.J. No. 3907 (C.A.), at para. 27, demeanour evidence (as opposed to a witness’ demeanour when testifying) has been known to play a role in wrongful convictions.
[24] Demeanour evidence is not irrelevant, however, and trial judges are not required to ignore it in the assessment of witnesses. Trial judges may use demeanour evidence in conjunction with their assessment of all the evidence and in the full context of the trial: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.) at para. 8, citing R. v. Boyce, 2005 CanLII 36440 (ON CA), [2005] O.J. No. 4313 (C.A.) at para. 3.
[25] As was noted by Laskin J.A. writing for the Court of Appeal for Ontario in R. v. R.D., [2016] O.J. No. 3903 at para. 25, “[d]espite academic and judicial commentary suggesting that demeanour evidence is unreliable, under Canadian jurisprudence it remains relevant to the assessment of a witness’s credibility”: R. v. N.S., 2012 SCC 72 and R. v. O.M., 2014 ONCA 503. Regardless, it is clear that trial judge ought not to unduly rely on demeanour to make a credibility finding. Reliance on demeanour must be approached cautiously: R. v. S.(N.), 2012, SCC 72. A witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. Hemsworth, 2016 ONCA 85.
[26] Insofar as a complainant’s post-event emotional state is concerned, evidence of a complainant’s emotional upset may be used to support a complainant’s evidence of a sexual assault: R. v. Varcoe, 2007 ONCA 194, 222 O.A.C. 197 at para. 33, citing R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.). See also R. v. J.A., 2010 ONCA 491, [2010] O.J. No. 2902 at paras. 16-18, reversed on other grounds, 2011 SCC 17. The weight to be given this evidence is a matter for the trial judge’s discretion. Again here, a trial judge must be cautious about undue reliance on such evidence to resolve a credibility issue: see A.J., 2011 SCC 17 at para. 14.
Application of the legal principles to the facts of this case
The assessment of the evidence of the accused and other defence evidence
[27] While there is no required formula for addressing the evidence in cases of this kind, I turn first to my assessment of the evidence of the accused. If I believe his evidence, or if it leaves me with a reasonable doubt when considered in the context of all the evidence, as I have indicated, under our law he would be entitled to an acquittal.
[28] I do not believe the evidence of the accused, nor does it leave me with a reasonable doubt, when considered in the context of all the evidence I have heard. I have arrived at this conclusion for the following reasons.
[29] First, I am unable to reconcile the evidence given by the accused on several material issues with other evidence which I do accept. For instance, the accused’s evidence about how the complainant removed her own underwear and left it on the floor before getting into bed cannot be reconciled with the independent evidence. The evidence of the police officers who arrived at the cabin in response to the complainant’s 911 call is that they located the complainant’s underwear when the accused got out of bed. The underwear was found on the bed, under the spot where the accused had been sleeping. The accused was adamant in his testimony that the underwear had been left on the floor. For reasons I will provide later, I reject the suggestion that the complainant returned to the cottage and planted this evidence. I accept the evidence of the police officers as to where the underwear was located. I find that this is powerful evidence that undermines the account given by the accused, and is consistent with the account given by the complainant.
[30] Further, the accused’s evidence about how the complainant removed her clothes upon arriving at the cabin is not consistent with any other witness, and evolved during the course of his evidence. The accused says that the complainant immediately removed her spandex pants upon arriving at the cottage. In cross-examination, he added the detail that she exposed her underwear in the process, and that he and S.M. looked at one another in a way that indicated they both thought this was kind of weird. This is not consistent with the evidence of the complainant or S.M. S.M.’s account was that at some point in his presence, the complainant removed a sweater she was wearing. He said nothing about the complainant undressing to the point that he could see her underwear, or about any looks exchanged between him and the accused in response to her conduct. Nor was he asked if that occurred. I do not believe the accused’s account that this occurred.
[31] I also reject the evidence of the accused because of the manner in which his evidence evolved on certain issues. His evidence was sometimes confused, or not consistent in his examination-in-chief and in cross-examination. For instance, his account of whether he had had contact with the complainant between March and August was confusing. More importantly, his account of when he discussed going to the cottage with the complainant was unreliable. In chief, his evidence suggested this was discussed during a phone call. In cross-examination, he said he told her in the boat, but not before. The evidence was confused at a minimum, and contradictory at worst. Similarly, in chief, the accused suggested that there had been a discussion between him and the complainant about staying overnight at his cottage and returning in the morning while he was on the phone with her at his friend’s house, while in cross-examination he said that this was mentioned when the complainant got in the boat. He further testified that this was the first time that he also told her that he would bring her back in the morning.
[32] I further have difficulty with the accused’s evolving account of whether he was interested in having sex with the complainant. I cannot reconcile his suggestion that when he brought the complainant to the cottage, he expected they would have sex, with his evidence to the effect that he was an unwilling participant. Further, while the accused testified initially that he did not participate in the sexual encounter and he could not have stopped the complainant from having sex with him, his account evolved to include the detail that he had tried to push the complainant off him. I do not believe this occurred. I do not believe this not only because of the evolution in the accused’s account, but because I do not believe that he would not have been able to move the complainant had he tried. I accept the evidence that the accused was larger than the complainant, and I do not accept that the complainant’s weight on his hips was sufficient to pin him to the bed as he suggests. I also find that the accused again gave confused and contradictory evidence on this issue when he suggested in re-examination that he was not necessarily trying to stop the sexual activity by trying to push the complainant off, but rather, he was trying to let her know he was getting tired and did not want to keep going. He could offer no explanation for why he let it continue. I do not believe this part of his account, nor does it leave me with a reasonable doubt.
[33] I have further difficulty with the evidence given by the accused that he had received a text from the complainant suggesting they “get laid”. The accused was arrested for sexually assaulting the complainant within hours of the alleged offence. He told the officers upon arrest that the sex was consensual. While in the shock of an arrest, it is perhaps understandable that the accused would not produce evidence of this text, which he says he received that day, to the officers, even though there is a fair inference to be had on the evidence that he had his phone with him. However, the accused’s account of what happened to prevent the production of this evidence at a later date is difficult to accept. According to the accused, sometime after his arrest, he ran over his cell phone after leaving it on his truck and driving away. He was unable to say when this occurred. He also testified that he did not believe that at the time he ran over the phone, he knew he would be charged and going to court. While he says he knew he’d been arrested, and that he knew police would investigate, he did not believe the case would get to court. I find this account of what happened to his cell phone to be incredible and convenient, and do not believe it. I also do not believe his account that the complainant texted him saying “let’s get laid” given the totality of the evidence.
[34] I further find that the accused diminished the evidence of animosity he had towards the complainant, as well as to her boyfriend P.L. While both the complainant and P.L. testified that the accused had threatened her after their disagreement in the parking lot following the AA meeting, the accused denies he did so. I found both the complainant and P.L. to be credible on this point, and their evidence corroborates one another. Their evidence also confirms that P.L. sought to intervene in the altercation. P.L. says that the accused then threatened him. The accused denies this. I do not believe that denial, and believe the accounts given by P.L. and the complainant. There is no doubt that during the altercation, the complainant assumed a martial arts stance. Even the accused agrees this occurred. Her conduct during this altercation is supportive of the suggestion that the accused threatened her and she was acting in self-defence. The accused’s account of this event makes little sense, and is not corroborated by P.L. I do not believe the accused’s account of this event, including his suggestion that the complainant threatened to get even with him, and that she would use the law to do so.
[35] Finally, while they are not reasons to reject his evidence in and of themselves, the accused’s criminal record and the manner in which he testified give me little confidence about his evidence. The criminal record includes convictions for offences of dishonesty and offences showing contempt for the administration of justice. There are convictions for robbery, failing to comply with court orders, obstruction of a peace officer, and failing to attend court. The record spans a number of years, and includes relatively recent entries. The most recent of the three convictions for obstructing a peace officer is in 2011, and the most recent conviction for failing to comply with a court order is in 2012. This criminal record does not assist the accused.
[36] The accused was also not assisted by the manner in which he testified, and conducted himself in court. He was frequently frustrated with Crown counsel. Very shortly into the cross-examination, he suggested the Crown was trying to get him to argue with him, and was badgering him. He rolled his eyes at times, and sighed loudly at counsel’s questions. At one point during the Crown’s closing submissions, the accused said “this is getting ridiculous”. While I appreciate that the experience of testifying is a stressful one, and a witness’s demeanour while testifying or while in court has limited weight in the overall assessment of the witness’s evidence, this is one of those cases where the manner in which the accused testified did nothing to enhance the court’s assessment of his credibility and reliability.
[37] I am also not left with a reasonable doubt after consideration of the remaining evidence called by the defence. The evidence of W.S. and S.M. is of limited assistance to the accused, and on some issues, undermines it.
[38] The evidence of W.S. provides general confirmation as to the accused’s activities that day, and his account that he had only one beer when at his friend’s house. He further confirms that the accused had his phone that day, and that the accused was texting while with him. He was present when the complainant got on the boat, and said she seemed ecstatic to be doing so. He said the accused told him the woman he was picking up was a person he’d been seeing for a while. While he was only in their presence for a brief period, he said he saw no animosity or friction between the accused and the woman they picked up at the marina. While the accused had told him the woman needed a river cruise because of some difficulties she was having, he said the accused made no mention of taking her to an island. This evidence does not leave me with a reasonable doubt when it is considered in the context of all the evidence. To the contrary, W.S.’s evidence that the accused made no mention of a plan to go the island with the complainant supports the account given by the complainant, who said no such plan was made.
[39] As far as the evidence of S.M. is concerned, as I have indicated, it is contradictory to that of the accused in important respects. It does not leave me with a reasonable doubt. To the extent that it is capable of undermining the evidence of the complainant, I will address that issue momentarily.
[40] In summary, I have considered the evidence of the accused in the context of all the evidence called. I do not believe the account given by the accused for the reasons I have outlined. Nor does his evidence, or other evidence adduced by him, leave me with a reasonable doubt on the issues to be proved by the Crown.
The assessment of the evidence adduced by the Crown
[41] The rejection of the evidence of the accused, and my finding that the evidence adduced by the defence does not raise a reasonable doubt does not mean that the Crown has proved its case. A judge cannot find that just because the evidence of the accused is not accepted that this is proof of his guilt. Further, a judge must not simply decide which account she prefers in assessing whether the Crown has proved its case. Rather, a judge must assess whether the Crown has proved the case based on evidence adduced which the court does accept as having been proved beyond a reasonable doubt. The Crown must prove each element of the offences charged beyond a reasonable doubt. The reasonable doubt standard also applies to its assessment of credibility and reliability.
[42] Before addressing my assessment of the complainant’s evidence and that of the other Crown witnesses, I turn to consideration of the evidence of the complainant’s 911 call which was adduced by the Crown.
The purposes for which the 911 tape is admissible
Background
[43] During the trial, the Crown adduced the call made by the complainant to 911. The tape provides evidence of the complainant’s demeanour in the time following the alleged assault. Over the course of the call, the complainant is guided by the 911 operator to attend at another cottage on the island so she might get further information about her location, which would permit emergency services to be dispatched to assist her.
[44] No pre-trial application was brought by the Crown seeking a ruling that the tape was admissible for the truth of its contents. The Crown gave no indication at the time it adduced the tape that it was seeking to have it admitted on that basis, and no voir dire was held on that issue. No transcript of the tape was provided to the court, which might suggest that the Crown intended to rely on statements made during the course of the call. No objection to the admissibility of the evidence was taken by defence at the time it was tendered.
[45] During the course of submissions at the conclusion of the trial, it became apparent that the Crown was seeking to rely on the tape for the truth of its contents, in addition to relying on it for the purpose of demonstrating the complainant’s demeanour in the immediate aftermath of the alleged assault. As this was the first indication of the Crown’s intention to rely on what would otherwise be inadmissible hearsay, the court requested further written submissions from the parties as to the purposes for which the evidence might be considered.
The positions of the parties
[46] In its written submissions, the Crown argues that the 911 tape may be relied upon for the truth of its contents, as evidence of the timing of the offence, and as evidence of the post-offence demeanour and mindset of the complainant, which it says is circumstantial evidence corroborating the complainant’s account of what happened to her. The Crown further submits that since the evidence was admitted without contest from the defence, it is the defence which must now seek to exclude the evidence by demonstrating that it does not meet the necessity and reliability criteria that govern the admissibility of hearsay for the truth of its contents. The Crown suggests that the only issue to be determined now is what weight to give the evidence.
[47] The defence opposes the admissibility of the evidence for the truth of its contents. Counsel highlights the complainant’s drug use that night and the reasons to be wary of the reliability of her comments. He cites cases where the trial judge refused to admit similar evidence on the basis that the 911 tape is oath helping because it is a prior consistent statement, and because the caller is available as a witness. The defence says that the evidence is neither necessary nor reliable. The defence says the evidence also does not qualify as res gestae, since the statement was not sufficiently contemporaneous to the alleged criminal act. He says the complainant had too much opportunity to make up a self-serving statement as she sat on the dock before calling 911.
Principles and Analysis
[48] In seeking to rely on the 911 tape for the truth of its contents, the Crown bears the onus of demonstrating the evidence meets the criteria set out in the principled exception to the hearsay rule. This is so regardless of whether the evidence may also fit within the traditional exception to the rule on the basis that the utterances on the tape are spontaneous, or res gestae.
[49] The Crown must also comply with certain procedural rules, including giving notice to the defence of its intention to adduce the evidence for that purpose. Here, the Crown brought no pre-trial application. Further, when it adduced the evidence in the course of the trial, it gave no notice that it intended to rely on the evidence for the truth of its contents. In these circumstances, counsel for the defence was entitled to assume the Crown would limit its reliance on the evidence to other purposes. Contrary to the submission of the Crown, the fact that no objection was made to the evidence being tendered does not relieve the Crown of its burden of proof in satisfying the court, on the balance of probabilities, that the evidence is necessary and reliable.
[50] In the circumstances of this case, I am not satisfied that the Crown has met its burden for the following reasons. First, with respect to the necessity criterion, the 911 tape does not capture the offence in progress, or any conduct by the accused. Unlike many of the cases cited by the Crown, this is not a case where there is a “contemporaneous unfolding of events that defies description by way of narrative” by the witness: see for instance R. v. W.T.V., [2001] O.J. No. 4737 (S.C.J.). In this case, the offence alleged had already occurred, and there was nothing that transpired while the complainant was on the call with 911 which could not have been described fully by her as she testified. Save for the evidence of her demeanour, which is admissible as non-hearsay evidence, the tape adds nothing to the evidence on any material issue.
[51] Second, as regards the reliability criterion, several issues are of concern. Since the Crown gave no notice of its application, no voir dire was held to permit the defence to cross-examine on issues relating to the reliability of the evidence. The importance of this procedural safeguard is underscored by the cases cited by the Crown in support of its position, all of which involved a voir dire following an application by the Crown to have the evidence admitted for its truth. While the court has considerable discretion as regards matters of procedure, it must be careful to ensure that the use of evidence that is presumptively inadmissible for a given purpose is only permitted where the interests of the opposing party have been safeguarded by a fair process.
[52] To the extent that the existing record permits the analysis of this issue on the trial record, there are various factors that weigh against the reliability of the statement. First, the tape was not made under oath. While the circumstances in which the statement was made may in some cases be sufficient to overcome that frailty, I am not persuaded this is one of those cases. In that regard, I am not persuaded by the Crown’s submission that the complainant was available to be cross-examined, thereby diminishing reliability concerns. Given that the Crown had given no notice to the defence about its ultimate intent in adducing the tape, the witness’s availability for cross-examination loses considerable force in reassuring the court that the reliability of the evidence has been properly tested (see R. v. Peterpaul, 2001 CanLII 24119 (ON CA), [2001] O.J. No. 100 (Ont. C.A.) at para. 28.) The absence of procedural fairness has the practical impact of impairing the Crown’s ability to meet its onus on the reliability analysis. For these reasons, I am not satisfied that the evidence is either necessary or reliable. The Crown has not met its onus, and the 911 tape will not be considered for the truth of its contents.
[53] However, I find that the evidence is relevant and admissible on the issue of the complainant’s post-offence demeanour. As noted by Hill J. in R. v. N.R., [2016] O.J. No. 1561 (S.C.J.) at para.19, “[a] complainant’s emotional condition is circumstantial evidence capable of being corroborative of the truth of the witness’s account: R. v. B.(G.)(1990), 1990 CanLII 113 (SCC), 56 C.C.C. (3d) 161 (S.C.C.), at pp. 164, 167-8; R. v. Haggart, [2010] O.J. No. 268 (C.A.), at para. 14; R. v. Folland (1999), 1999 CanLII 3684 (ON CA), 132 C.C.C. (3d) 14 (Ont.C.A.), at paras. 24-5”. The tape provides evidence of the complainant’s emotional condition in the immediate aftermath of the alleged assault, and does not offend any rule of admissibility when considered only for that purpose. My consideration of the tape as evidence will be limited to the evidence it provides of the complainant’s demeanour at the time of the call.
The assessment of the complainant’s evidence
[54] I turn now to my assessment of the complainant’s evidence. There are a number of reasons to be cautious about the complainant’s evidence in the circumstances of this case. I will address these issues in turn.
The complainant’s use of marijuana and her bi-polar medication
[55] The complainant and other witnesses testified that the complainant suffered from mental health issues, including a diagnosis of bi-polar disorder, ADD and ADHD. At the time of the alleged offences, she took medication for her bi-polar disorder. She testified that in the time since, she has been given a prescription for medical marijuana, which assists her with all these conditions.
[56] It is uncontroverted that the complainant did not have her medication with her while she was at the cottage. It is also uncontroverted that while at the cottage, she smoked marijuana. While there is a dispute on the evidence as to how the complainant consumed marijuana, the material issue for the court insofar as her reliability is concerned is the impact the marijuana consumption had on the complainant, as well as any impact upon her of being without her bi-polar medication, or the interaction of her earlier dose of bi-polar medication with the marijuana she consumed.
[57] As regards the impact of the complainant’s mental health issues and either her lack of medication or its interaction with marijuana, consumed either by smoking a joint or in the manner described by S.M., the court was not assisted by any expert evidence on these issues. The complainant acknowledged her condition and that she was without her medication, and testified that her marijuana consumption did not impair her functioning in any significant way. She said that she was a regular marijuana user at the time. S.M. said the complainant seemed out of it, and that she was jittery and could not sit still. However, he agreed he had never met her before, and had no previous experience with her to compare her conduct. He said she was not stumbling, or falling about. The accused said the complainant got very high. He agreed that she was jittery, and said she is always talkative. He offered no other evidence as to how her functioning was impaired.
[58] The force of the defence submission is that the complainant was high on marijuana, and that this makes her account unreliable. The defence also points to the complainant’s marijuana use as an explanation for why she was so emotional in her call to 911. Having considered this argument in the context of all the evidence adduced, I am not persuaded that the complainant’s use of marijuana that evening impaired her functioning to the point that her evidence is unreliable. I say this because the reliability of the complainant’s evidence was confirmed in a number of ways throughout her evidence. She gave very detailed evidence, and was not contradicted on her account in any material way. The detail in her evidence included a generally accurate description of the cottage and its layout, names of people she met for the first time on August 10th, and a description of the boat used to get there. This accurate recall is particularly noteworthy since the complainant had never been in the boat or the cottage before, and has not returned since these events. The complainant also gave a consistent and accurate account of the timing of the events that occurred that day, beginning with the time she went to the marina to take a boat ride with the accused, who agreed that it had become dark by the time they were on the water. I am satisfied that whatever amount of marijuana the complainant consumed, in whatever manner she consumed it, and with whatever residual medication she had in her system for her bi-polar condition, her marijuana consumption did not impact her ability to recall events with accuracy. In arriving at that conclusion, I also consider that Sgt. Lafrance, one of the officers who first spoke with her on the island, testified that she seemed sober.
[59] Before leaving the issue of the complainant’s marijuana use, I confirm that I have also considered the discrepancy in the evidence as to how she consumed the marijuana. The complainant denied that she used a bong to consume the marijuana, although she admitted she had brought her bong with her in the backpack she was carrying. In contrast, S.M. and the accused said she was using the bong, and S.M. said it was used in a manner that made the marijuana she did consume even more potent. I find that the force of any consistency in the evidence of the accused and S.M. on this issue is diminished by the fact that S.M. testified prior to the accused: R. v Smuk, 1971 CanLII 1197 (BC CA), [1971] B.C.J. No. 633 (B.C.C.A.), and R. v. Turino, [2005] O.J. No. 4097 (C.J.). As regards the evidence of S.M. and the complainant, they are consistent on the fact that they consumed marijuana together that evening. S.M., who said his memory of events was foggy, suggests the complainant had up to two joints of marijuana, while the complainant says they shared one. Both witnesses were regular marijuana users at the time, and both deny any impairment from their use of the drug. I am inclined to accept both of their statements to that effect, and would not suggest that either witness is mistaken in his or her recollection because of the fact of the drug use. As to the discrepancy in their accounts of how much and how the marijuana was consumed, given my concerns about some of the evidence given by S.M. as outlined below, and given the fundamental consistency on the fact that marijuana was consumed, I am not persuaded that these are material inconsistencies which significantly diminish the complainant’s credibility.
The allegation of fabrication and the complainant’s motive to fabricate
[60] The defence has advanced the theory that the complainant fabricated her allegations, suggesting in its written submissions in reply to the Crown’s closing arguments that “her mind was already plotting it, from at least the moment she got into the boat” with the accused. The defence points to her texting of P.L. at the cabin, the placement of her underwear under the accused, and the complainant’s suggestion to police that her underwear was in the cabin and would bear traces of the accused’s DNA, as evidence the complainant is framing the accused with a false allegation. While there is never any obligation upon the defence to adduce evidence showing why a complainant might be fabricating, in this case, the accused has suggested that the complainant is acting out of a financial motivation since she might make a claim to the Criminal Injuries Compensation Board.
[61] With respect to the complainant’s motive to fabricate, the complainant was firm in her denials that she was motivated by the possibility of a financial claim to the Criminal Injuries Compensation Board. Some evidence was adduced that during the time the complainant lived with the accused, he was in the process of making a claim to the Criminal Injuries Compensation Board which ultimately proved successful. It was suggested to the complainant that she reviewed the paperwork related to that claim while she lived with the accused, including a copy of his criminal record, and that she was making this claim to get money. She denied looking at the accused’s paperwork, or knowing that he had a successful claim. She also denied she was making up her allegation to get money.
[62] The accused also suggested that the complainant had given notice of her intention to use the law to get back at him following their altercation in the parking lot following the AA meeting, which is another possible motive for her to fabricate. As I have said, I do not believe the accused’s account that the altercation occurred as he described, including that the complainant made this threat to him.
[63] Both of these alleged motives to fabricate arose months before these allegations were made, making them more remote as plausible reasons to fabricate. I am not persuaded, nor do I have a reasonable doubt, that the complainant fabricated her allegations to pursue her own claim with the Criminal Injuries Compensation Board so many months later. I believe her denials that this played no part in her making these allegations to police. Surely, if the complainant was intent on making false allegations against the accused, she would do so in circumstances that left her less vulnerable than being on an unknown island in the middle of the night without any ability to leave on her own. If these allegations were a fabrication, one might also expect them to involve a more straightforward account of a forcible sexual assault, rather than one where the complainant’s consent was vitiated by fear based on the accused’s conduct on a previous occasion. I do not agree with the submission that the complainant’s suggestion to police that her underwear remained in the cabin is evidence that points toward a fabrication. I also do not believe that the texts sent by the complainant to P.L. were pre-meditated to support her fabrication. Again here, if this were a pre-meditated fabrication, surely the allegation would be made in these texts immediately to prompt P.L.’s call to 911, whereas the complainant and P.L. both describe a series of texts being sent by her to P.L. prior to the accused’s name being mentioned. I also accept the complainant’s evidence that she did not know where the cottage was located, that she had never been to the island before, and that she could not leave it because she did not know how to drive the boat driven by the accused. It seems an unlikely part of a pre-meditated plan to make a false complaint to police from a location that cannot be easily described to them, and which left her unable to leave on her own.
[64] In all the circumstances, I am not left with a reasonable doubt that the complainant’s allegations are the product of a plan to frame the accused.
The complainant’s demeanour, her interest in acting classes, and her ability to lie
[65] As I have indicated, our law holds that a complainant’s emotional condition is circumstantial evidence capable of being corroborative of the truth of the witness’s account. In this case, the Crown points to the evidence of the complainant’s demeanour as corroborative of the account she has given. That evidence was given by P.L., the police officers who first attended at the scene, and via the 911 tape. The Crown also relies on the complainant’s demeanour while testifying, and the fact that she became emotional at various times, as reinforcing the credibility of her account.
[66] While the defence acknowledges the evidence suggesting the complainant was distraught in the aftermath of these events, and that she expressed emotion while testifying, it argues that the court should be skeptical of that evidence because the complainant has a history of lying, and because she may be acting. The defence highlights the evidence that the complainant has had a long time interest in taking acting classes, and she has recently enrolled in a class.
[67] I am mindful of the limited role demeanour evidence may play in its assessment of the credibility of a witness. I am also mindful of the particular need for scrutiny of the evidence suggesting that the complainant is a practiced liar, and the possibility that she may have honed her ability to advance a false narrative by taking acting classes.
[68] As regards the evidence that the complainant is an actor, at most, the evidence is that the complainant has long held in an interest in acting and would like to have the opportunity to be on TV. She says her interest and ability lie in comedic roles. She testified that she has recently enrolled in classes which have not yet started. Having observed the complainant throughout her testimony over multiple days, I am not persuaded that the complainant was acting as she testified, or during her call to 911. The Crown described the complainant as a colourful witness, who was “rough around the edges”. This is an accurate characterization. I also find that the complainant was not a sophisticated person. It was clear in her evidence that she has had a difficult life, which was marked by instability and addiction at the time she met the accused. While she appears to have made a number of positive changes in her life, her professed interest in being on television demonstrates a certain naïvete. I do not believe that whatever acting ability the complainant has rises to the level of being able to deliver the nuanced performance she is alleged to have given in court and on the 911 tape.
[69] I am more concerned about the evidence given by P.L. about the complainant’s ability to lie, and the fact that she lied to him about where she was going when she asked P.L. to drive her to the marina. I have considered this evidence very carefully. While it cannot be said that a witness who has lied before is disentitled to belief, a court must be very cautious when evidence of this kind is adduced. Every case turns on its own facts, and the evidence in each case must be carefully considered.
[70] Here, the evidence indicates that the complainant lied to P.L. about the fact that she was going to go on a boat ride with the accused. She told him she would be going with another friend. She explained that she told him this because she knew they didn’t like each other, and to make it “look better on her”. Evidently, the complainant confessed her dishonesty to P.L. the next day, and he insisted they go to the police station to inform the police. While I accept that the complainant has the capacity to lie, and did lie to P.L., I agree with the Crown’s submission that it is relevant that the complainant quickly confessed to the truth to get the lie off her chest when she might have continued with the lie.
[71] With respect to P.L.’s evidence that the complainant had a history of lying to him, to the point that he was not sure whether she was telling him the truth in the first texts she sent from the cottage, I accept this as more evidence of the complainant’s capacity to be deceitful. The complainant agrees that she lied to PL all the time, and says this was because she did not love him, and she hid things from him because she knew he would “freak out” about them. However, she says she would not lie about someone hurting her, or about something serious.
[72] I have considered this capacity to lie in assessing the complainant’s credibility about what occurred with the accused. However, given all the evidence in this case, including the evidence that corroborates the complainant’s account which I will discuss shortly, I do not find this evidence impairs the credibility of the complainant to the point where I am left with a reasonable doubt about her account of being sexually assaulted and threatened by the accused.
Inconsistencies between the complainant’s evidence and the evidence of other witnesses
P.L.
[73] In assessing the complainant’s credibility, I consider that there are discrepancies in her evidence as compared to that of other witnesses. Some of these issues are more important than others. I have already addressed the difference in her account and that of S.M. regarding the complainant’s marijuana use.
[74] There were also discrepancies in her evidence as compared to that of P.L., most notably as to the content of the texts that she sent to him while she was in the cabin. Insofar as those differences are concerned, P.L. used some equivocal language as he described the content of the texts he received, and indicated he was not sure of the words used. He said she had texted she was “being raped or something”, which he thought was a joke. It was not until one of the texts mentioned the accused’s name that he started to take them seriously, because the complainant had told him that the accused had assaulted her before. He also said he thought that at one point the complainant had sent texts saying she was hiding, and that she called him, said that she had to be quiet because she was in hiding, and then hung up. He said he asked her how she did not know where she was, and she responded that she was high, and “on an island or something”. It is not clear how long this communication occurred after the initial texts sent by the complainant. In contrast, the complainant says that she texted P.L. both before and after the assault. She said she texted P.L. and said something to the effect that she had a bad feeling, or a feeling she was in trouble. She told him to call the cops, and mentioned the accused’s name. She denied texting that she was going to be raped. At one point in her evidence, she referenced texting P.L. and phone calls “starting to come in”.
[75] There is also a discrepancy between the complainant and P.L. about what he was told about the previous incident of violence between the complainant and the accused. P.L. testified that the complainant told him that the accused had beaten her up and had broken her teeth in doing so. He also said he thought she had told him about a fight on her birthday. It was not clear if he was referencing another event, or the same incident. The complainant said she had told P.L. what had happened on her birthday, and that the accused beat her with a shovel. She denied telling P.L. that the accused had punched her teeth in, said that she suffered no injury to her teeth, and that she had not shown any such injury to P.L.
[76] In determining what to make of those discrepancies, I note that P.L. testified without giving any impression of bias or favour toward either the complainant or the accused. He testified that the relationship with the complainant broke up after she assaulted him, a fact which he attributed to her mental illness. The two were no longer together and had been apart for some time before he testified at trial. He testified that everything he knew about the accused was through the complainant, and what he observed of him at AA. P.L. readily agreed that at the time of these events, he did not like the accused, who appeared to him to be angry and to “project fear onto others”. Nevertheless, he did not appear to have any animosity towards the accused as he testified. There is no reason to reject his evidence as biased in favour of the complainant, or against the accused. In short, he was a generally credible witness.
[77] The details of the timing of the texts, their frequency, and any phone calls that occurred were not fleshed out in the evidence. I found the complainant’s evidence on this issue somewhat confusing, and the evidence of P.L. to be less than firm in his recollection. P.L. frequently used equivocal language in his description of events, and I find it peculiar that he would not be more certain about whether or not he received a phone call from the complainant that night given the circumstances. With respect to P.L.’s suggestion that the complainant called him while in hiding, the accounts of the complainant, the accused, and S.M. are consistent that the complainant was texting while she was in the cottage (S.M. agreed that she might have been), and none of them suggests the complainant left at any point. The description of being in hiding is arguably generally consistent with the complainant leaving the cabin and going to the dock.
[78] In any case, it is clear that P.L. received a series of texts from the complainant indicating she needed help and implicating the accused as her aggressor, and this led him to call 911 on her behalf. It is also clear that the complainant had made a prior report to him of having been assaulted by the accused which prompted him to take her complaint seriously. I find that these points are material, and the discrepancies in the recollections by each witness as to the details of what was said reflect the frailties of human memory. With respect to the suggestion that the complainant told P.L. the accused had broken her teeth, there is reason to believe that P.L. is mistaken in that recollection, as the complainant demonstrated in her evidence that she had no damage to her teeth, and there was no evidence in P.L.’s evidence to suggest she had had her teeth repaired in any way. The complainant was also firm in her denial that she described this kind of injury to P.L. On this issue, I prefer the evidence of the complainant about what she told P.L. about the previous assault by the accused.
S.M.
[79] While a generally credible witness in his presentation, there were features of S.M.’s evidence which detracted from his credibility and reliability. For instance, he did appear to favour his uncle with some of his testimony. He said in his examination in chief that the complainant seemed more intoxicated than the accused, who was not intoxicated. He changed his evidence on this point when his memory was refreshed in cross-examination and he agreed he had told the police that he did not offer a drink to his uncle because it seemed he’d had enough already. He also expressed opinions about how the complainant should have acted if her complaint were true and on a few occasions went beyond simply providing factual answers to questions posed to provide his opinion. He further indicated at various points that his memory was not good, since these events were three years ago.
[80] Insofar as the evidence of S.M. is concerned, there are some discrepancies between his account and that of the complainant. For instance, S.M. says that he vaguely remembered the complainant bouncing on the bed for a few seconds, getting back up and coming to the table. He did not testify, as the accused did, that the complainant said “this is going to be fun” when bouncing on the bed, or that he shared a look with his uncle when she bounced on the bed. He also readily admitted that he had not told the police that the complainant had sat on the bed and bounced on it. The complainant did not describe bouncing on the bed in her evidence, and denied doing so as described by the accused. Given that this detail was not mentioned by S.M. to the police, and his admittedly vague recollection about it, I am not satisfied that this did occur. Further, even if it did occur as described by S.M., given S.M.’s evidence that he observed no flirting between the accused and the complainant, or conduct of a sexual nature, and his evidence that the complainant was jittery and could not sit still in the one room cottage, I do not view the act of bouncing on the bed for a few seconds as conduct that suggests the complainant was interested in sexual activity with the accused, as was suggested by the accused in his evidence.
[81] There was also a discrepancy in the evidence of S.M. and the complainant about whether the door on the inside of the cottage had a lock. The complainant testified that she had difficulty getting out of the cottage because the door was locked, while S.M. said there was no lock on the inside door. He did testify that there was a latch on the screen door. I accept that given that the complainant had never been to the cottage, was without her glasses, and in a panicked state of mind, that she might have difficulty getting out of the cottage and believe that the door was locked. The evidence is clear that she did manage to get out, and was not locked in. I do not find this to be a discrepancy of significance in the circumstances.
[82] Overall, the evidence of S.M. was largely consistent with that given by the complainant. He said that the trio talked at the table in the cottage for up to 30 minutes before he left, leaving the accused and the complainant alone. He was clear that he witnessed no sexual conduct of any kind on the part of the complainant, that no flirting went on between her and the accused, and he heard no sexual comments from either. He also gave a description of the layout of the cottage that was generally consistent with that given by the complainant. As I have said, he did not support his uncle’s account of a shared look in response to the complainant taking off her pants and exposing her bikini underwear, or her alleged comments that “this will be fun” while bouncing on the bed.
[83] Overall, I agree with the Crown that the inconsistencies in the complainant’s account as compared to the other witnesses called represent an island in a sea of consistent evidence. While I am alive to the discrepancies in the evidence, in the circumstances of this case, they do not cause me to have a reasonable doubt about her account of the sexual encounter between her and the accused.
The complainant’s fear of the accused
[84] The defence argues that if the complainant was genuinely afraid of the accused, she would not have agreed to go on a boat ride with him. He says she points to only one incident as giving rise to her fear, and that this is not a “battered woman syndrome” scenario. He also highlights the complainant’s experience with kickboxing, and suggests she could defend herself against men. He says she did not fear any men, let alone the accused.
[85] I accept the complainant’s evidence about why she got into the boat with the accused. Notwithstanding their history, and indeed because of it, she said she wanted to make amends and put the past behind them. Both the complainant and the accused agree that this was something they were encouraged to do in AA. I do not think the fact that she agreed to take a boat ride with the accused in these circumstances means that she should not be believed when she says she was fearful when he later threatened her.
[86] Similarly, I do not discount the accused’s version of events because he agreed to spend time with a woman who he says was unpredictable, and likely to stab him in the back. Human experience suggests that people do continue relationships in circumstances that are abusive or unwise, and I do not find either the complainant’s answer as to why she agreed to go on a boat ride with the accused, or the accused’s answer as to why he was willing to spend time with the complainant, as inherently implausible.
[87] I also accept that the complainant could be genuinely fearful of the accused upon being threatened by him because of one incident in the past when he had hurt her. It is not necessary that the history of violence rise to the level of that seen in “battered women syndrome” before a person may be fearful of another. Such fear may be quite reasonable even without a history of actual violence. Further, the evidence before me indicates that in addition to the events alleged on the complainant’s birthday, the accused is alleged to have threatened the complainant during the subsequent incident in the parking lot following the AA meeting. I do not find the complainant’s professed fear that the accused would hurt her if she did not comply with his instructions implausible in the circumstances.
[88] Whatever the complainant’s history with martial arts or kickboxing, I also do not find that this background would necessarily mean that she could not be afraid of someone. The experience of fear is psychologically complex. I would not expect that someone with the background of the complainant, which appears to be limited to pursuing kickboxing as a hobby, would necessarily physically defend themselves in the face of a threat made in the circumstances in which the complainant found herself. The fear she described, and her submission to the accused in the face of that fear, is not inconsistent with the evidence that she had some experience with kickboxing.
[89] In summary, none of the issues identified by the defence or which otherwise suggest a need for caution in accepting the complainant’s account cause me to reject her evidence as incredible or unreliable.
The reasons for accepting the complainant’s account
[90] In the end, I am persuaded by the complainant’s account of her sexual encounter with the accused, beyond a reasonable doubt, for the following reasons.
[91] First, while the complainant was an imperfect and unvarnished witness, she was compelling. She readily admitted facts that were unflattering, including her history of drug addiction, her assaultive behaviour upon P.L., and her history of lying to him. She did not appear to be trying to present herself in a more positive light when answering questions on those or other topics. While her evidence was sometimes confused, it was fundamentally consistent on the material issues. The complainant did express some frustration in answering certain questions, and had at least one moment of becoming argumentative with counsel. Those moments came late in the questioning, and I consider her conduct in this regard as reflecting, at least in part, her frustration about the repetition in the questioning. In the end, she gave a lot of detail in her evidence, and was never contradicted or shown to have been inconsistent in her account on another occasion.
[92] More importantly, I accept her evidence because her evidence on material issues was corroborated in several important respects. For instance:
a. P.L. confirmed her account of the altercation with the accused in the parking lot following the AA meeting, including that the accused threatened her;
b. The accused confirmed her evidence that she had never been to his family’s cottage previously;
c. W.S. confirmed that the accused only told him he was taking the complainant on a river cruise, and mentioned nothing about going to an island. This supports the complainant’s account that her only discussion with the accused was about going on a boat ride, and that they had not discussed going to his cottage;
d. P.L. confirmed that the complainant sent him texts complaining about the accused while she was at the cottage, and this led him to call 911;
e. The accused confirms the complainant was texting while at the cottage;
f. S.M. confirmed the complainant’s account that there was no flirtation, exposure of her underwear, or sexual talk or interaction between her and the accused while he was present with them at the cottage;
g. The police witnesses confirmed that the complainant’s underwear was left in the cabin, and that she was not wearing pants when they located her on the island. This corroborates the complainant’s account of leaving the cottage without this clothing, which conduct is consistent with wanting to get away from the accused because he had assaulted her;
h. The police witnesses found the complainant’s underwear in the bed after the accused got up, which is consistent with the complainant’s account of having her underwear removed by the accused while she was in the bed;
i. The complainant’s post-event demeanour as described by the police witnesses, captured on the 911 tape, and described by P.L., is consistent with the complainant’s description of her state of mind in the aftermath of the events in the cottage, and is consistent with her account of being assaulted by the accused.
[93] The uncontroverted evidence is that the accused and the complainant had sex on August 10, 2013. What I must decide is whether the Crown has proved beyond a reasonable doubt that the complainant did not consent to that sexual activity, because her consent was obtained by a threat to kill her. Section 265(3)(b) of the Criminal Code makes clear that no consent is obtained where the complainant submits by reason of threats, or fear of the application of force.
[94] When I consider the complainant’s evidence in the context of all the evidence adduced in this trial, I find that the Crown has proved that the complainant only consented to sex with the accused because he threatened to kill her. I believe the complainant’s account that the accused threatened to kill her if she did not have sex with him. I find that the complainant only consented to performing sexual acts on the accused because she was scared he would hurt her. I find that the complainant’s history with the accused gave her reason to fear him, and I believe her when she says that this is why she did what he said. I further find that because the complainant only consented because she was threatened, her consent is not valid. I find that the accused had no consent from the complainant for any of the sexual activity that occurred on August 10th. He forced her to engage in sexual activity against her will.
[95] After considering all the evidence, I am not left with a reasonable doubt on any of the elements of the offences charged. I am satisfied beyond a reasonable doubt as to the credibility and reliability of the complainant as regards each of the elements of the offences. The accused is therefore found guilty of threatening to kill the complainant as well as sexually assaulting her on August 10th, 2013.
Additional issues
[96] Before completing my reasons, I want to clarify how I have used and considered certain pieces of evidence. First, the criminal record of the accused is not relied on in any way as character evidence. Only the convictions previously referenced by me were considered as relevant to his credibility.
[97] Similarly, the evidence of previous incidents of threatening and violence alleged by the accused were used for limited purposes. Those events were admitted on consent because they form part of the narrative relating to the relationship between the parties (including any animus toward the complainant by the accused), and are relevant to the complainant’s state of mind on August 10, 2013 and the issue of her consent to the sexual activity. The differences in the accounts about the events following the AA meeting were also considered with respect to the credibility of the complainant and accused. This evidence was not relied upon to support an inference that because the accused acted in a violent manner on a previous occasion, he is was of bad character and therefore more likely to have been violent on the occasion of August 10th.
[98] Secondly, while it was not the focus of any closing argument, I have considered the evidence of S.M. to the effect that he did not hear anything in the cottage that would indicate an assault had occurred. On the evidence of both the accused and the complainant, nothing was said during the sexual activity, and no sounds of significance were made. S.M. also agrees that he slept through his uncle’s arrest when police first came to the cabin. It is accepted in our law that a person need not cry out or seek help to demonstrate their lack of consent to sexual or other unwanted touching. In the circumstances, the fact that S.M. did not hear anything is of no assistance in the analysis.
[99] I also do not find it weighs against the complainant’s credibility that she did not seek assistance from S.M. after the assault. I accept the complainant’s explanation for why she did not do so. It is now part of common experience that people respond to traumatic events in different ways, and the complainant’s reluctance to seek help from S.M. is understandable. Moreover, the fact that the complainant instead made her way to the dock and called 911 is evidence that shows she complained and sought assistance in the immediate aftermath of the assault. I fail to see why involving S.M. would be more consistent with the events having unfolded as she said than her conduct in calling 911.
[100] Third, with respect to counsel’s submissions, I have not considered submissions made based on facts that were not in evidence. I have also not relied on the complainant’s demeanour as she listened to the 911 tape. I decline to make the finding suggested by the Crown that the emotion demonstrated on the tape was similar to that she showed in court because the complainant was re-living the events.
[101] Finally, as to the theory of the defence that the complainant must have turned out the light in the cabin, another indication that she had manipulated the scene, I note that the evidence from S.M. indicated that the electricity at the cottage was powered by a car battery which needed to be re-charged at frequent intervals. I am unable to say what occurred with the lights, particularly given the source of power in the cottage. However, I do not find this is a material issue. On this evidentiary record, I am not left with a reasonable doubt that the complainant was responsible for turning off the lights in some effort to manipulate the evidence at the scene as part of a plan to frame the accused.
Madam Justice Laurie Lacelle
Released: November 22, 2016
COURT FILE NO.: 14-96
DATE: 2016/11/22
IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 (both victim and accused) OF THE CRIMINAL CODE OF CANADA DATED OCTOBER 8, 2013 BY HIS WORSHIP LEGAULT.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D.M.
REASONS FOR JUDGMENT
Madam Justice Laurie Lacelle
Released: November 22, 2016