Regina v JK, 2016 ONSC 8058
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Regina v JK
BEFORE: EM Morgan J.
COUNSEL: Emma Evans, for the Crown/Applicant
Steven Dallal, for the Defendant/Respondent
HEARD: November 21-25, 2016
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
REASONS FOR JUDGMENT
1The accused is charged with sexual assault, assault, and a number of offences relating to breach of bail conditions.
2Although the Complainant has mentioned in passing a number of minor incidents, the main allegations relate to two incidents of non-consensual intercourse and a beating by the accused in the early morning hours of January 1, 2015, in the aftermath of a New Year’s Eve celebration.
I. The relationship
3The accused and the Complainant met each other in early December 2014 at a homeless shelter in Toronto. It is the Crown’s theory that the accused has a habit of stalking or acting in a predatory way by seeking out vulnerable women in homeless shelters. The Crown also posits that the accused was from the outset of their relationship “controlling” of the Complainant, and that he pressured her to move in together after knowing her for only a short period of time.
4As the evidence unfolded at trial, it became increasingly clear that that is a mischaracterization of their relationship. In the first place, although it is true that they met in a homeless shelter, it was the accused, and not the Complainant, that was homeless. The Complainant, a woman in her 40’s, had an apartment of her own and a stable home life. The accused, a young man in his 20’s, had no fixed address and was dependent on shelters to put a daily roof over his head. He had apparently been drifting from city to city in Ontario, and other than a grandfather in Toronto does not appear to have had any family or other support. The Complainant indicated that she met him while volunteering at the shelter.
5Moreover, it is clear from the testimony of the Complainant that the accused did not stalk her or pursue her in a predatory way. Their relationship began at the Complainant’s own initiative, and it was she who pursued him. She conceded that he was not interested in her at first and that, in fact, it was she who was initially interested in him. She specifically described herself as a “cougar” who had “pursued her cub”.
6The one aspect of the Crown’s theory about the relationship that is accurate is that it was short lived and intense. It began in early December 2014 and ended less than a month later, on January 1, 2015. During the course of that month, the accused moved in with the Complainant and the two of them had a spousal-like relationship and set up a household in her apartment.
7The Complainant confirmed in her testimony that the relationship was very warm, loving, and supportive during the first several weeks, with no signs of any controlling conduct by the accused. They each came and went their own ways during the daytime, the Complainant was in contact with her family and the accused occasionally with his grandfather, and they shared intimate moments without unduly impinging on each other’s lifestyle or each other’s freedom to go about their own business. Far from being pressured and controlled by the accused, the Complainant indicated that she was very happy living with the accused and considered herself fortunate to have met him.
8Despite this happy beginning, the Complainant testified that within two or three weeks of their living together things began to deteriorate. She said there were several incidents in which the accused lost his temper and slapped her, although she stated this almost as an aside or as a general comment about the accused’s personality and could not describe any of the slapping incidents in any specific way. She did not come up with a single actual incident, but rather stated, simply but baldly, that the accused gave her “the odd slap here and there”. The Complainant did confirm, however, that she was never actually injured, and that nothing ever left a mark on her or even particularly hurt.
9The impression left by the Complainant is that the relationship with the accused was a good one until it suddenly descended into violence on two distinct occasions, or on two dates, which will be discussed in detail below. Other than those two dates, the incidents of slapping were described in a way which leaves some doubts about how, when, or why they occurred, or if they occurred at all.
10The Complainant gave the impression that she was concerned that the two more serious incidents required a precursor or a build-up of some sort, and so she felt compelled to dispel the notion that the relationship had been altogether positive up until that time. From the way that she testified about these supposed early signs of aggressiveness from the accused, however, it is not possible to know what really went on.
II. The pillow incident
11The first serious incident between them took place, according to the Complainant, about two weeks into their live-in relationship. In the middle of the night – the Complainant testified that she and the accused had opposite sleeping patterns, and that he would stay awake all night while she slept and then would sleep all day while she went about her business – the accused woke her up to show her something on her own cell phone. The accused had lost his phone, she explained, and was in the habit of playing games and using her phone when she was sleeping or otherwise not using it.
12The Complainant related that the accused told her he had discovered on her phone that she had been receiving text messages from her old boyfriend. Apparently, he had been scrolling through her phone and came across what she said were months-old messages but that the accused mistook for recent messages. As the Complainant described it during her examination in chief, the encounter was a very intense one.
13According to the Complainant, the accused woke her up at 2:00 a.m. saying, “[g]uess what? Your boyfriend is texting you.” She indicated that he was calm at that point, and that she was surprised at his comment. She then related that he went on to say, “It looks like you’re still with this man”, to which she replied, “I’m not with him, he’s my ex.”
14The Complainant indicated that the matter escalated from there, with the accused raising his voice and calling her a “slut” and other names. As she put it, he “spazzed out,” and kept saying “You’re having a relationship with this man and you didn’t tell me.” At some point during this argument, the Complainant stated that the accused tried to put a pillow over her head, but that she tossed it to the side. She indicated that in tossing the pillow she accidentally knocked over a box of juice, and that other than that the accused never hit her or otherwise physically touched her during this incident. She described it as a mostly verbal argument.
15As the Complainant narrated it at trial, the argument then ended as suddenly as it began. She testified that he told her that maybe he should have some relationship with other women since she is, and that she replied, “Okay, go ahead”. She then concluded, “After that I went to bed. I couldn’t be bothered with him anymore.” At that point, she said that the accused retired to the living room and continued to focus on her computer and comb through her Facebook page, while the Complainant herself went back to sleep.
16At the conclusion of the Complainant’s examination in chief, it was difficult for me to know what to make of the pillow part of this story. That is, I could not tell whether the accused’s use of the pillow was aggressive or not, since she was rather ambiguous and almost casual in her description of it. On one hand, it is alarming to hear about a pillow being used as a weapon to cover a victim’s face, and it raises the spectre of the accused trying to suffocate the Complainant while she lay in her bed. Indeed, that possibility is what was suggested by the Crown and is what led to the pillow incident being included in the indictment as one of the counts of assault.
17On the other hand, although the Complainant spent considerable time describing the verbal argument they had that night, she never indicated that the accused had used any force at all with respect to the pillow. As she described it, he simply placed a pillow on her in a way that allowed her to easily it toss off. She indicated that he did not strike her, and there was no suggestion in her testimony that he tried to hold the pillow down on her or hurt her in any way. She did not describe the accused attempting to suffocate or otherwise do her harm with the pillow.
18All that really comes out of the Complainant’s testimony is that during the course of a verbal argument, the accused placed a soft object on top of her and the Complainant threw it off of herself without injury or even any struggle. Listening to the Complainant, the worst part of the accused’s use of the pillow is that it caused her to spill some juice when she tossed it aside.
19If the Complainant’s testimony in chief was difficult and ambiguous, it got even more inscrutable once cross-examination began. Defense counsel had little trouble bringing out that the Complainant’s description of the pillow incident was significantly different than the description she gave when she described the same incident at the preliminary inquiry held in September 2015.
20For one thing, the Complainant had testified at the preliminary inquiry that not only were they having a verbal fight, but they were having a protracted physical one as well. In her previous testimony, the Complainant described the accused as choking her with his hands and dragging her by the collar across the bed. In that context, the physical aggression of placing a pillow over her face took on new meaning.
21Not only that, but at the preliminary inquiry the Complainant testified that in the midst of this physical assault the accused had told her, “I’m going to kill you.” This statement led to yet another aspect of the indictment, which contains a count of uttering threats. Remarkably, this pointed threat, which tended to support the description of the accused trying to first choke and then suffocate the accused with a pillow, was also left out of the Complainant’s testimony at trial. Although the Crown did not drop the uttering a threat charge, Crown counsel did concede in argument that the particular threat which led to this count in the indictment had never found its way into the Complainant’s trial testimony and so there is no evidence of it in the trial record.
22For reasons which remain mysterious (although the Complainant’s stated reasons will be explored below), the Complainant’s trial testimony and her preliminary inquiry testimony were very different from each other. Her earlier testimony about the pillow incident described a brutal, life threatening form of assault, while her testimony about the same incident at trial described a verbal spat by a jealous boyfriend and no real physical assault at all.
23The Complainant’s pillow narrative contains another oddity, which relates to the timing of the alleged incident. When she gave her initial statement to the police on January 1, 2015 – i.e. the same day as the two incidents of sexual assault that form the most severe offenses in the indictment – the Complainant had said that the pillow incident had happened one or two days previously. She was very precise about this, and in cross-examination defense counsel played the video of her interview so that there could be no doubt about when she had said it took place.
24In the video, one can see and hear the police officer specifically asking the Complainant if the pillow incident happened on Wednesday, December 31st in the a.m. hours. She confirmed that this is precisely when the incident had taken place – about 24 hours prior to the alleged sexual assaults which ended her relationship with the accused. There was no ambiguity in her response, and nothing to suggest that she was misstating the timing. From the way it came out at the police interview, the Complainant’s indication that the pillow incident had taken place early the previous morning seemed to flow naturally into her narrative of a New Year’s eve and day of violent, assaultive behaviour by the accused.
25And yet at trial, the Complainant denied this timing. She said that the pillow incident took place a week or two before New Year’s, and not proximate to the sexual assaults of New Year’s Day. Defense counsel suggested to her in cross-examination that there was good reason for her to change her story in this respect, as the narrative did not fit with her description of the rest of the day on December 31st.
26As it turns out, the Complainant described the day before New Year’s, including the morning only hours after the pillow incident supposedly took place (according to her police interview), as being one of high spirits in which she and the accused were in party mode. They shopped for champagne and cute party hats and decorations for their planned New Year’s Eve festivities, they called their respective family members to wish them well for the New Year, etc.
27As counsel for the defense points out, nothing about this description makes sense. It all took place within a couple of hours of the accused attacking the Complainant, threatening to kill her, and ranting like they were having a violent episode. Indeed, when defense counsel asked the Complainant why she would shop for alcohol for a man who had just hours before exhibited violent behaviour, she stated that she was still a “cougar” pursuing her “cub”.
28When confronted in cross-examination with the timing issue, the Complainant said that she must have been mistaken when she gave her interview to the police. As indicated, however, she was far more certain during that interview than she appeared at trial. At some point, the Complainant must have concluded that the timing she had previously given to the pillow incident undermined her credibility, as it turned out to be the same happy morning when the Complainant herself said that far from being wary of the accused she was pursuing him aggressively.
29Compounding this mystery, at the preliminary inquiry the Complainant described the pillow incident as taking place while the accused was in the midst of what sounds like a psychotic episode. She told the preliminary inquiry judge that the accused was ranting in an irrational way, saying that he had a message from his sister who died at the age of three that the Complainant was a bad person and was cheating on him with another man. She had described the experience as other-worldly, and had said somewhat cynically that “astronauts” were communicating with him and telling him to fight with her. She confirmed that this was not a moment that she could easily forget, and at the preliminary inquiry she offered that at the time she thought the accused might be schizophrenic and hearing voices.
30Remarkably, this tale of the accused communicating with spirits beyond the grave was left out of the Complainant’s trial testimony. She never testified that this outlandish behaviour even took place. The argument with the accused, according to the Complainant’s testimony at trial, was not a pleasant one, but it was grounded in reality – the accused had actually seen a text message on her phone from a man who the Complainant identifies as her ex-boyfriend. The Complainant may have described the accused as jealous and overbearing in his verbal response to what he saw as a sign of her infidelity. However, in her trial account the accused was not listening to ghosts or otherwise exhibiting signs of severe mental illness.
31In any case, the pillow incident can be dismissed insofar as the counts of assault and uttering threats that it was meant to support are concerned. The way the Complainant testified at trial, as opposed to at the preliminary inquiry, the physical aspect of this incident amounted to nothing more than a harmless object being tossed by the accused and removed by the Complainant.
32However, the pillow incident cannot be dismissed insofar as it reflects on the Complainant’s credibility. She changed her story about this incident in three highly significant ways.
33In one telling the pillow incident was a violent, near-death experience, while in another telling it was a verbal confrontation whose physical aspect was of negligible significance. In one telling the pillow incident took place weeks before the Complainant’s relationship with the accused culminated in the New Year’s sexual assaults, while in another telling it took place the day before those same sexual assaults and on a morning the Complainant otherwise described as one of domestic happiness and party preparation. In one telling the pillow incident was grounded in a real text and photo that the accused saw on the Complainant’s cell phone, while in another telling it was grounded in the accused’s delusional hearing of messages from his long dead sister.
34It is this last discrepancy, or more accurately the Complainant’s explanation for it, that provides the most insight into her veracity. She was asked by defense counsel why she left the recounting of the accused’s seeming psychotic fantasy out of her trial testimony. In response, she related what can only be described as a fantasy of her own.
III. The Complainant’s tale of threats
35In the middle of her cross-examination it seemed to dawn on the Complainant that her testimony in chief, which was by that time irrevocable, was at odds with the testimony she had given at the preliminary inquiry. In response to defense counsel’s questions relating to the missing tale of the accused’s communion with the talking dead, the Complainant suddenly stated that she left out parts of the story because she was threatened.
36She suggested, somewhat incongruously, that someone – at first she would not say who – had called her on the telephone and warned her not to tell the part of the story about the accused speaking with his now deceased sister. Apparently the threat did not pertain to the rest of her testimony, but was offered as an explanation for the most glaring discrepancy between her trial evidence and her prior testimony. According to the Complainant, the caller had cryptically stated that, he “wants nothing to do with the crime scene when it happens”.
37When pressed on this mysterious phone call, she offered that in fact this was not the only threat she had received. The Complainant stated that a week or so before the threatening phone call, she had heard a rattle at her door at about 4:00 a.m. one morning. She said that she did not open the door but instead started banging on the door, presumably to scare away whoever was on the other side. Then a week later, the other person phoned her and she understood that the call was in reference to the person who approached the door.
38The Complainant never reported any of this to the police or the Crown, even though it occurred after the preliminary inquiry when she was already in contact with them to prepare for trial. As she put it, “I did not want to be involved with this incident.” She also indicated that she was anxious to protect her children and didn’t want any trouble.
39Defense counsel was understandably surprised by this story of threatening behaviour, as he had never heard it before. He therefore pressed the Complainant to inform the court who it was that was issuing the threats. In response to my ruling that the defense is entitled to question her on thisevidence and that she is required to answer the question, she indicated that the man who called her is named Wayne Johnson.
40Although it is unclear to me whether this is a real name or whether such an individual actually exists, the Complainant volunteered a surprising amount of detailed information about him. She said that she has no address for him, and only knows his phone number. She also indicated that he looks like he lives in his small white automobile with Nova Scotia plates. She did not say how she knows this individual, and so defense counsel pressed her as to how she could identify him as the threatening caller.
41At this point, the Complainant’s story went from bad to worse. She had a moment of sudden recall in response to this question, and indicated for the first time that she knew it was Wayne Johnson because the Peel Region police had visited her and warned her to stay away from him. She said that two uniformed officers came to her house unannounced at 5:00 one morning, and had a conversation with her at her front door about how Wayne Johnson is someone she should stay away from. According to the Complainant, the police officers told her that Wayne Johnson had been calling them to say that she had been brutally raped and beaten in her apartment. They also advised her that Wayne Johnson appears to be a pastor in churches and shelters, but that he impersonates people and is a dangerous person who is affiliated with the Hell’s Angels.
42By this time, of course, not only was defense counsel increasingly surprised but so was Crown counsel. Neither she nor the officer in charge who was assisting her with the case had ever heard of involvement in this matter by the Peel Region police. The officer undertook to contact Peel Region at the lunch break and to disclose to the defense any incident report that might exist with respect to the police visit to the Complainant’s apartment.
43After lunch, the officer reported that the Peel Region police force had no record of any threatening phone calls from any Wayne Johnson, nor did they have any record of any visit by any of their officers to the Complainant’s apartment. Defense counsel, who was still in the middle of his cross-examination, dutifully put this fact to the Complainant for an explanation. Her explanation was certainly an interesting one.
44The Complainant explained that the two men she thought were police officers must have been members of the mafia. She went on to explain how the mafia has very good costumes, and how the accused’s father is somehow involved with biker gangs and the mafia. She did not indicate how she knows the accused’s father, which would be rather curious since the accused lives in homeless shelters and gives no indication of having any contact with his immediate family.
45At that point, defense counsel decided that the court had heard enough of this tale and went on to a different line of questioning. I commented in final argument that if anything this seemed merciful, since the more he questioned her on this fanciful story the more far afield her narrative seemed to stray. After saying that she was visited by the mafia disguised as the Peel Region police, almost anything seemed possible. We appeared poised to enter something akin to internet conspiracy territory.
46The Crown’s position with respect to the threat/Wayne Johnson/police/mafia testimony is that one of three possibilities exist. Crown counsel submitted that the possibilities for this story are: 1) that it is true, and the Complainant really did receive threats from Wayne Johnson and really did get a warning from the police or someone impersonating them; 2) that the Complainant believes all this to be true; or 3) that it is a fabrication on the Complainant’s part.
47For the purposes of getting to the truth in this trial, the Crown’s Possibility 2 and Possibility 3 are both very disturbing. They suggest that either the Complainant is entirely disconnected from reality or she is an outright liar.
48This part of the Complainant’s testimony was a tall tale, spoken either out of delusion or invention, or, possibly, both. Although it looks like a not-uncommon situation where a witness tells a small lie, and then gets trapped by a succession of cross-examination questions into embellishing and enlarging that lie, it was in fact too outrageous a story for that. The story did sound like it was being concocted as it went along, but it is hard to fathom how someone who is not prone to fantasy could even come up with something that others would perceive as this irrational. In other words, both Possibility 2 and Possibility 3 may be correct, and the Complainant may have fabricated it and also be delusional enough to believe in this kind of thing.
49The Crown’s Possibility 1, of course, would be supportive of the Complainant’s credibility. That is, the Complainant’s evidence would not be in doubt if it turned out that the mafia really did dress up as Peel Region police, or that real Peel Region police actually did arrive unannounced at the Complainant’s residence at 5:00 a.m. one day to warn her about unexplained phone calls they had received mistakenly pronouncing her to be abused and beaten in her apartment, and that the Peel Region police force kept no records whatsoever of any of this, or that the Complainant was warned not to testify about the accused hearing voices from his dead sister but was not warned about other parts of her testimony, and that this warning was preceded by a mystery caller who rattled the Complainant’s front door and then vanished like a spectral visit in the small hours of the morning, and that the calls came from a person who lives in a little white car from Canada’s Ocean Playground but who is really an outlaw biker who masquerades as a pastor.
50It is an understatement to say that the Crown’s Possibility 1 is not possible. The Complainant’s story not only strains all credulity, it is so patently false that to suggest that one possibility is that it is true raises more questions about the suggestion than it does about the story. I will say no more about that, except to wonder aloud why the court is being invited to countenance the kind of false testimony that no rational person would countenance.
IV. New Year’s Eve
51The two counts of sexual assault are alleged to relate to events that took place in the early morning hours of January 1, 2015. According to the Complainant, she and the accused had consensual sex once that night, which was followed within hours by first one and then a second incident of non-consensual sex.
52It was the Complainant’s evidence that she was sore from the first sexual session that night, and did not want to have sex again. She said that the accused did not take ‘No’ for an answer, and instead told her that if she doesn’t agree he was going to “take it from her.” She testified that he proceeded to do just that, forcing himself on her a couple of hours after the consensual session that night and then again a couple of hours after that. She testified that it was excruciatingly painful, and indicated that both times he violated, degraded, and humiliated her in different ways.
53At trial, the Complainant testified that the first time that the accused forced her to have sex against her will, he ripped off her favorite pink shirt that she had been wearing as a pyjama top. She said that he did not pull the shirt over her head, but rather ripped it right off of her before forcing her to have sex. The torn pink shirt was later found by the police in the Complainant’s bedroom, although it was folded on a plastic bin and not lying on the floor where the Complainant thought she had left it.
54The Complainant further testified that during intercourse the accused effectively “re-enacted” for her a childhood sexual assault that she had experienced at the hands of her father. She explained that she had earlier confided in the accused about this incident in her distant past, and that he used this confidence against her in the very early hours of New Year’s day 2015. After she refused to willingly have sex with him, she said that he reminded her of her experience of abuse and kept on talking about it so that she would experience that degradation again. The Complainant said that this verbal abuse, coupled with the physical abuse, was very painful for her.
55Interestingly, while at trial the Complainant only described this “re-enactment” of her childhood experiences as having taken place during the first incident of non-consensual sex, at the preliminary inquiry she only described it as having taken place during the second incident of non-consensual sex. When she gave her police statement on January 1, 2015, she said that it happened on both instances of non-consensual sex.
56The fact that the Complainant could not consistently remember when this specific abuse took place does not in itself mean that it did not happen. However, I do have to keep in mind the Complainant’s demonstrated tendency to indulge in falsehoods in assessing her overall evidence. I am also cognizant of the fact that she is capable of coming up with an untruth on the spur of the moment in testimony. As the Court of Appeal has noted, where an “inconsistency [with prior testimony] involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth”: R v MG, 1994 8733 (ON CA), [1994] OJ No 2086, at para 23 (Ont CA).
57Along those lines, at one point defense counsel asked her if she has a criminal record, to which she answered no. When he pointed out that indeed she does have a conviction for theft stemming from a guilty plea back in 1991, she quickly recovered her composure and assured the court that this was not really her. She said that it must have been her friend Felicia, who admitted to her recently that she had stolen her passport long ago and was apparently using her identity as a disguise. It is, I suppose, conceivable that the Complainant has a friend named Felicia who assumed her identity for the purpose of pleading guilty to a crime. It is more likely, however, that the Felicia story is a testament to the speed and guile of the Complainant in her telltale carelessness with the truth.
58The Complainant testified that the second incident of coercive sex took place about two hours after the first. By this time, the Complainant stated, she was even more sore in her vaginal area, and again told the accused that she did not want to have sex. She also indicated that prior to having sex the accused beat her severely on both legs, putting her in such pain that she could not get up or walk. She said she felt he was doing this in order to confine her to the bed so that she could not escape his forceful actions.
59When she went back over her testimony she clarified that the accused in fact beat her on the legs both times that he forced her to have sex that morning. In any case, she was clear that by the end of the second sexual assault and beating she could not move. She stayed in bed until around noon that day, and then had what she called a sudden burst of energy and ran from her apartment to the police station a number of blocks away. In her description, she did not get washed or dressed but simply grabbed her cell phone, which was re-charging on her night stand near where the accused was sleeping on her bed, and ran to the police station in the middle of winter wearing only pyjamas.
60In cross-examination, defense counsel asked the Complainant why she had to go all the way to the police station in that state of undress, when she had gone out of her way to get her phone and could simply have called the police. She said that she was in such a traumatized state at the time that she didn’t think of using the phone that she had specifically gone around the bed to retrieve.
61Defense counsel then asked why she didn’t stop someone on the street and seek help from them as she was running the several blocks to the station. Again, she said that she was not in enough of a focused state to even notice anyone on the street and she did not recall encountering anyone she knows to ask for help. This, however, stood in direct contradiction to her description of the run to the police station that she gave at the preliminary hearing. There, she had indicated that passersby were shocked at seeing her in pyjamas in January, and were calling out to her by name – they obviously knew her – telling her to go get dressed.
62I hasten to add that I am not describing the Complainant’s conduct in order to pass judgment on how or when she reported the sexual assault to the police, or how she reacted in the aftermath of the incident. It has been over 25 years since the Supreme Court of Canada eliminated the doctrine of recent complaint from the analysis of sexual assaults. Every individual may react differently to trauma and the court should have no preconceived ideas in this regard. As McLachlin J. (as she then was) put it in R v DD, 2000 SCC 43, [2000] 2 SCR 275, at para 63, “The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons…react to acts of sexual abuse.”
63The only significance to this point is that it points to yet another inconsistency in the evidence. It is one thing to say that the Complainant cannot be expected to react to sexual assault in a preconceived way or to inform the police at a preconceived time. However, the Complainant can certainly be expected to tell the court almost two years later the truth about how she reacted. The Supreme Court rightly said that it does not matter how a complainant reacts to a sexual assault; but however she reacted, the court can expect her to have reacted the same way each time she testifies about it.
64When the Complainant arrived at the police station she relayed what had happened to the officer at the desk, and the shortly thereafter gave a full videotaped statement to the police. The police then arranged for her to go to the hospital, where a ‘rape kit’ was produced and she was examined for the purpose of collecting evidence as well as treating any injuries.
65She testified that when she ran to the police station her legs still hurt, but she had not taken the opportunity to look at them. She also stated that while at the police station she did not pull down her pants to look for bruising on her legs, but that she did tell the police officer that there was no bruising because she is dark skinned. Instead of checking her legs, she simply said to the officer, “So there’s no proof, I guess, because I’m a dark skin person so you’re not going to see.”
V. Medical and forensic evidence
66The nurse that examined the Complainant at the hospital filled out the sexual assault form in what appears to be a thorough way. She took vaginal swabs from the Complainant, which tested for a positive match to the accused’s DNA. As indicated, the Complainant herself stated that they had had consensual intercourse one time that night, so the presence of the accused’s DNA does not particularly assist in the sexual assault analysis.
67Beyond that, there was not much to report on the sexual assault report. The Physical Examination Form (6 pages of diagrams) states: “Pte [patient] reports being strangled. 0 bruising or marks on pts neck area”. And in the diagram portion of the report, lower down on the body it is marked “0 visible injuries”. The next page, which shows the torso from a side view, it is marked “0 visible injuries” on the side of body.
68On the witness stand, the Complainant agreed that the nurse examined her entire body to determine where there were visible injuries and where she felt pain or tenderness. There is nothing noted on any of the diagrams contained on the form, and no indication of any bruising or pain or tenderness on the legs. The Complainant indicated that what she remembers most from this examination is complaining about vaginal pain. The nurse’s report states that the vaginal area and cervix is “within normal limits”. It shows no tears or bruising of the genital area, and, despite the specific notation that the diagrams show “areas of tenderness” – indeed, the Complainant acknowledged that the nurse did ask her about tenderness and soreness – there is no indication of any soreness or tenderness complained of on the diagram.
69The forensic examination of the Complainant’s apartment turned up little of interest. Since the Complainant has acknowledged that the accused had been living there with her for a number of weeks, it is little surprise that the police forensic team found plenty of evidence of the accused’s presence in the apartment. Men’s shoes, men’s toiletries, etc. were all located in the Complainant’s residence, but none of it is of significant evidentiary value given that the two of them had been cohabiting since early December 2014.
70The day after the hospital visit, the Complainant came back to the police station and reported significant bruising on the outer part of both of her thighs. The police took pictures of this, which were admitted into evidence. The Complainant testified that she is a former dancer, and in the pictures one can see that she has sturdy, strong-looking legs. There are visible bruises on the muscular part of her thighs. Nothing of this sort was noted by the nurse who did the examination of the Complainant the previous day.
71The one thing of interest from the apartment is the pink shirt described by the Complainant. The Crown produced a report by a textile expert as to the state of the shirt as found by the police in the apartment. The expert had testified at the preliminary inquiry, and on consent of both counsel the report and the transcript of her testimony were entered as exhibits. What the expert could say for sure is that the shirt had been ripped, not cut with a scissors, and that the shirt had not been through the laundry since the time it was torn. That said, the expert was clear that nothing she observed was conclusive as to when the tearing of the shirt took place: “The garment could have been damaged and then put away in a closet and not looked at for a year or could be given to me immediately. I would not be able to tell the difference of time between the two garments.”
72As indicated, the Complainant testified that the pink shirt was ripped off her body, not pulled over her head. At trial, the forensic officer unfolded the shirt from the property bag in which it had been stored, and held it up for the court to see. It was obvious that although it was torn in the front, the sleeves were intact and the tear did not extend around the back of the shirt. It appeared to be physically impossible for the shirt to have come off a person’s body without going over the head. There was simply no opening for a person’s torso to slip out of the shirt.
V. Burden of proof
73It is, of course, trite but fundamentally important law that the onus of proof beyond a reasonable doubt is always on the Crown.
74In assessing the case, the evidence must be considered in its totality: R v. L (CO), 2010 ONSC 2755, at para 6. This, as already indicated, includes the reliability and credibility of the Complainant as a witness: R v Ewanchuk, 1999 711 (SCC), [1999] 1 SCR 330, at para 29. Accordingly, I must acquit the Defendant of any given charge if I am unable to come to a determination “as to exactly where the truth of the matter lay”: R v Nimchuk (1977), 1977 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA).
75Although this is not a case where the accused has testified, the principles articulated by the Supreme Court in R v W(D), [1991] 1 SCR 74 nevertheless apply. The Court of Appeal stated this forcefully in R v BD, 2011 ONCA 51, [2011] OJ No 198, at para 114 (Ont CA): “…the principles underlying W(D) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.”
76More specifically, serious credibility issues on one count effect the other counts as well: R v Lukowski, [1995] OJ No 3381 (Ont CA), and R v Cassidy, [1998] BCJ No 108 (BCCA). Other courts have found that there may be material inconsistencies in a witness’ testimony “that are so significant that, although they relate to just one charge, they adversely affect the overall credibility and reliability of the witness to an extent that the trier of fact has a reasonable doubt on every charge”: R v JET, 2013 ONSC 6549, at para 70.
77Counsel for the defense submits that the Complainant’s tall tale about the threats and the mafia visiting her home taints all of her other testimony. This is either a lie or a delusion, or both, and according to counsel for the defense it does not stand apart from the rest of the testimony. Despite all the talk of threats, there was no sense of fear in her testimony and, in any case, someone who could concoct such an outlandish story on the spur of the moment on the witness stand almost by definition makes their narration of events suspect.
78Since the alleged slaps and the pillow incident amount to very little, the case rises or falls on the strength of the evidence for the two counts of sexual assault. Putting aside for the moment the issue of the Complainant’s credibility, the objective evidence is not particularly strong. The medical report contains no helpful information for the Crown, and to the extent the information in it is relevant it tends to negate any of the injuries alleged by the Complainant.
79The bruising on the Complainant’s legs the day after the medical report was produced is at best ambiguous and at worst suspicious. The theory of the defense is that these bruises were self-inflicted by the Complainant when she realized after her hospital visit that she needed to produce the “proof” that she had spoken about at the police station that day. The bruising seen in the photographs is as consistent with self-inflicted and relatively painless bruising on the muscular outside portion of the thighs, as it is with bruises inflicted by the accused that took an extra day to surface on the Complainant’s legs.
80As for the favorite pink shirt, the physical evidence is contrary to the Complainant’s testimony. She said it was torn off her body rather than pulled over her head, but it obviously was not. One cannot pull a shirt off a person’s body if there is a partial tear but not a complete opening around the chest or middle of the shirt. For one reason or another, the Complainant got this description wrong.
81And then there is the pervasive issue of the Complainant’s credibility. Even where an accused does not testify, the Court of Appeal has admonished that, “Where, on a vital issue, there favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings”: R v BD, 2011 ONCA 51, [2011] OJ No 198, at para 114 (Ont CA).
82Under the circumstances, there are so many credibility findings to be made with respect to the Crown’s primary witness that it is not easy to find a place where the Crown has a credible case at all. I simply cannot ignore the many substantial conflicts between the Complainant’s trial testimony and her prior testimony at the preliminary inquiry or her statement to the police. Moreover, there is the issue of the Complainant’s tall tale about being threatened and visited by the mafia, etc. To ignore the magnitude of that story would be to ignore a looming presence in the room.
83“While the Complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence”: Ewanchuk, at para 36. If I take all the evidence into account here, the Complainant cannot be believed. She contradicts herself with respect to the acts surrounding both alleged incidents of sexual assault, and contradicts herself or testifies haphazardly about all the alleged incidents of beatings and other types of assault.
84In addition, she demonstrates conclusively that she can lie at the drop of a hat. She has also displayed an ability to come up with lies that are so large that they overwhelm any possible truth that might be buried somewhere in her statements.
85In sum, in view of all of the evidence, it is not possible for me to determine with any certainty which material parts of the Complainant’s testimony are true and which are false.
VI. Disposition
86I find the accused not guilty on all counts.
Morgan J.
Date: December 14, 2016