CITATION: R. v. B.S., 2016 ONSC 8180

COURT FILE NO.: 14-3200

DATE: 2016/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

B.S.

Accused

James Bocking, for the Crown

Michael Johnston/Matthew Day, for the Accused

HEARD: October 25, 2016

BY COURT ORDER MADE UNDER SUBSECTION 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY THE PERSON DESCRIBED IN THESE REASONS AS THE COMPLAINANT MAY NOT BE PUBLISHED, BROADCASTED OR TRNASMITTED IN ANY MANNER.

reasons for decision

Toscano Roccamo J. (Orally)

Overview

[1] B.S. stands charged with the sexual assault and general assault of his former spouse, M.B., between June 1 and September 1, 2008 contrary to sections 271 and 266 of the Criminal Code.

[2] The alleged offences are said to have taken place in B.S.’ room in military quarters at the Canadian Forces Base in Borden, Ontario where both were stationed for training, and at a time they were dating.

[3] The parties agree that their relationship evolved into a sexual one by December 2007. They also agree that the sexual relationship had a “rough component”, which included choking, shirt tearing, and throwing the complainant onto beds. They agree that both initiated some of this aggression, both by verbal suggestions and also by their behaviour.

The Factual Context

[4] The criminal allegations did not come to light until M.B. gave a written statement to Military Police on January 16, 2014, followed by a videotaped statement on January 22, 2014. Both statements were taken at a time M.B. knew B.S. was away on a work-related course in Delaware. Upon his return, he was arrested and charged on April 9, 2014.

[5] These criminal allegations followed a domestic history that provides a necessary context to the charges brought against B.S.

[6] I would note that the Crown accepts the background facts pertaining to both the relationship and how the allegations came to the attention of police.

Background Facts

[7] After completing their basic training, B.S. and M.B. were married on March 20, 2009 when they were 21 and 22 respectively.

[8] They carried on a long distance relationship with B.S. driving back and forth to see M.B. after she was posted to Ottawa and living in Gatineau, and while B.S. remained at CFB Borden until posted to CFB Trenton in May, 2009. Within this timeframe, M.B. became pregnant and did not co-habit with B.S. until her posting was transferred to Trenton in November, 2009.

[9] Their son, B., was born on […], 2010.

[10] The young marriage succumbed to the combined stresses of work, parenthood and disagreements over a number of things, including over money matters and B.S.’ relationships with old girl friends.

[11] In August, 2010, B.S. was charged in Gatineau with an assault on M.B. Facebook messages contained in Exhibit 8, including one from M.B. to B.S. in October 2010, indicate they continued to have contact, despite a no-contact order.

[12] In January, 2011, B.S. was charged in Trenton with assault, breach of an undertaking and uttering threats against M.B.

[13] On February 23, 2011, M.B. commenced proceedings for a divorce, custody of B. and child support.

[14] On April 27, 2011, a temporary order was issued granting M.B. sole custody and child support, and liberal access to B.S. with temporary supervision.

[15] The parties continued to have contact after July 27, 2011 when B.S. plead guilty to the Trenton charges and received a conditional discharge. They also had contact after February 8, 2012 when B.S. plead guilty to the Gatineau charges and received an absolute discharge. Indeed, on March 17, 2012, M.B. was in his company at a St-Patrick’s day event when B.S. sustained injuries resulting in the loss of his right eye.

[16] The pleadings exchanged in the domestic proceedings as contained in Exhibit 3, and Facebook messages in Exhibit 8 reflect that, although M.B. and B.S. finalized their divorce on June 30, 2012, they continued to engage in further proceedings relating to disputes over access and the enforcement of arrears in child support and daycare expenses. Despite a resolution they signed on December 13, 2012, and after B.S. traveled to Ireland and Scotland where he married his current spouse on July 10, 2013, the fighting resumed after B.S. questioned the daycare expenses M.B. sought to recover from him.

[17] On September 28, 2013, as appears from the Facebook messages, M.B. threatened to go up B.S.’ chain of command if he did not “get to it”, and pay the outstanding expenses.

[18] The battle between them continued even after M.B. made the criminal allegations to Military Police, as appears from the email of M.B. to B.S. of March 5, 2014, entered as Exhibit 2.

[19] Indeed, I cannot help but note that at times material to the family court proceedings, the Facebook and email exchanges generated by both M.B. and B.S. reflect disrespectful and heated exchanges, including name calling, barbs and insults, and veiled threats.

Issue

[20] The issue in these proceedings is whether the crimes as alleged by M.B. in January, 2014 in fact took place.

Position of the Crown

[21] The Crown takes the position that the Court may rely upon the evidence of M.B., while at the same time quite fairly observing that this Court must decide whether her evidence is reliable due to the passage of time. The Crown invites the Court to draw an inference from the limited production of Facebook messages in Exhibit 8 that M.B. deleted her Facebook messages from B.S., as well as archived messages, after moving to Gatineau in July, 2012 in order to bring closure to the relationship. However, it is also M.B.’s evidence that the Facebook messages would have contained an apology written by B.S. shortly after the alleged crimes took place in the summer of 2008. It is unclear to me why she chose to delete the alleged apology.

[22] I am invited by the Crown to infer that there was no attempt on her part to destroy evidence, based on other indicia of credibility on the part of M.B.; notably, that she was an “open book” about her sexual history of “rough sex”, including the fact that the use of choking in the midst of sex was her idea. She also admitted to suffering post-traumatic stress disorder, depression and a drinking problem, for which she attended rehab in the early months of 2013.

[23] The Crown invites me to reject the position of the defence that M.B.’s allegations were made as a part of a “vendetta”, due to animus she harboured against B.S. for his failure to make timely payment of child support and daycare expenses. It was noted that she was able to set aside her feelings on October 10, 2013, relented to B.S.’ demands for Thanksgiving access, and also congratulated him about his wedding, despite the outstanding child support issues.

[24] Finally, the Crown also invites me to note that the undated letter in Exhibit 7, ostensibly written by M.B. for use in B.S.’ sentencing by the Quebec court in February, 2012, reflects that M.B. took steps to support B.S. when she might have easily “thrown him under the bus.” However, the Crown also quite properly concedes that her evidence with respect to any negative exchanges with B.S. on Facebook, coupled with her otherwise supportive behaviour at other times, is consonant with human behaviour.

Position of the Defence

[25] The Defence takes the position that M.B. was neither a credible nor a reliable witness, noting that she had an interest in the outcome of the criminal proceedings she initiated with statements to the Military Police, that being to bring about B.S.’ compliance with orders requiring payment of child support and daycare expenses. The defence argues that in September, 2013, as the contents of Exhibit 8 reflect, M.B. threatened to go up B.S.’ chain of command, and by advancing criminal allegations intended to use the military system to gain advantage in her child support and daycare dispute with B.S.

[26] The Defence points to internal inconsistencies, and reluctant admissions reflecting animus on the part of M.B.

[27] The Defence also relies on the lapse of memory in relation to M.B.’s knowledge of the outcome of the criminal proceedings in Gatineau and Trenton as part of a more generalized concern with respect to her limited memory of the details pertaining to the criminal allegations.

[28] The Defence noted M.B.’s willingness to blame B.S for deleting Facebook messages, as well as her suggestion that B.S. forged Exhibit 7 to obtain a favourable sentence in the Gatineau criminal proceedings.

The Applicable Law

[29] After receiving the evidence of B.S. and M.B. over the course of two days, it became apparent the credibility of each was critical to the result in this case.

[30] In all cases that turn on the issue of credibility, the analytical framework set out in Justice Corey’s majority judgment in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at pp. 757 to 758 applies.

[31] However, in assessing the credibility of B.S. and M.B. in this case, I am also guided by the dicta of Justice Watt in R. v. H. C., 2009 ONCA 56, 244 O.A.C. 288 at para. 41, where he noted:

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately:

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

Evidence of B.S.

[32] Having guided myself as to the law, I found B.S. to be a generally responsive witness whose evidence was not materially impeached on any question related to the charged events. Despite the vigorous cross-examination, I am unable to conclude that I should wholly reject his evidence, and rest full confidence in M.B.’s evidence as meeting the criminal standard of proof.

[33] In my opinion, B.S. provided a detailed account of the relationship drawn from his review of the Facebook messages, the family court proceedings, and his Military Personnel Report Record for the period between September, 2007 and May, 2009 from which he created the contents of Exhibit 6. This document added strength to his testimony that, between June 1 and September 1, 2008, he resided at the A-150 barracks while awaiting transfer to the A-249 mods following completion of his basic training. This was critical to his testimony that, in the timeframe pertaining to the criminal allegations in this case, he was stationed in a room where he and three other soldiers shared accommodation, and not in a two bedroom accommodation where M.B. alleges the sexual assault and assault took place.

[34] B.S. places equal but opposite reliance upon the Facebook messages in Exhibit 8 as objectively corroborating his evidence that there was no apology to M.B. on Facebook, because it did not happen. He offered plausible testimony to explain the paucity of Facebook messages at various times in his relationship with M.B., notably, in December of 2007, the absence of any messages in 2008, the limited messages in 2009 and 2010, and again the absence of any messages in 2011 and 2012. Without the assistance of expert evidence, I am in no position to reject B.S.’ explanation that, up until 2010, Facebook was not the primary mode of communication between he and M.B. because it was a slow and ineffective tool. He noted that Exhibit 8 reflects that he and M.B. used MSN messaging as well as telephone calls and email to communicate. He also noted that there were times when their relationship was off and on, and other times when both observed the no-contact order in the course of family law proceedings. This would explain the interruption and paucity of Facebook messages.

[35] I conclude that, at their highest, the Facebook messages contained in Exhibit 8 at times reflect mutually angry and conflictual exchanges generated by both B.S. and M.B.; however, these communications fall short of any evidence I would rely upon to arrive at any findings of guilt on the criminal charges before me.

[36] I am also in no position to draw any negative inferences when comparing the contents of Exhibit 8 to Exhibit 9 which notably reflect differences in the formatting and time stamp of at least one Facebook message. Again, B.S. offered a plausible explanation and indeed an opportunity to Crown counsel to challenge his testimony with respect to the Facebook messages, in order to dispel a concern that he altered or deleted messages for a nefarious purpose.

[37] B.S. also made appropriate concession, reflecting a hallmark of the honest witness, in noting that it was possible that he and M.B. discussed the contents of Exhibit 8 before his sentencing by the Quebec court, and agreed that it would be reasonable that she set out to assist him at a time that he and M.B. continued to have relations, notwithstanding the no contact order.

[38] B.S. also conceded that there were times M.B. did put the family law dispute behind her, as in the case of her Facebook message of October 11, 2013 in which she reversed her decision to deny him and his family access to his son over the Thanksgiving holiday. He also accepted her congratulations on his re-marriage as genuine and sincere. On the other hand, he noted there was an on-going and heated dispute after October 15, 2013 up to the end of their Facebook communications in Exhibit 8 and 9 about day care expenses, although he conceded that he did not take the high road in the form of his communication with M.B. He pointed out, however, that notwithstanding these angry exchanges, they got along well enough to go for coffee after court proceedings between July 11 and February 2012, and that he came to her aid by giving her his car to transport their son to daycare, and taking over primary care of their son in the early months of 2013 when she sought treatment and rehabilitation with respect to her alcohol abuse.

[39] In short, I find no reason to reject B.S.’ evidence outright denying these charges.

Evidence of M.B.

[40] Had any aspect of B.S.’ evidence caused me to reject his testimony, or to be left in reasonable doubt by any aspect of it, the Crown rested its case on the evidence furnished by M.B., there being no other independent witness or evidence to corroborate her evidence. After considering the sum total of her evidence, I have concluded that it neither assists me in arriving at the truth of the matter, nor gives me any confidence that her evidence meets the criminal standard of proof with respect to the essential elements of both the sexual assault and general assault.

[41] In giving her evidence in-chief, I could not help but note that M.B. had no memory as to the exact date when the crimes allegedly took place. She was also unclear about whether the events took place in a two bed or four bed barracks. In particular, she at first admitted that after she graduated from basic training in April, 2008, she went to a women’s only barrack in A-79 called the Nunnery, corroborating B.S.’ testimony, and recalled that B.S. was in a room with 3 other guys. She was unsure whether, at the time the assaults were alleged to have taken place in the summer of 2008, B.S. had roommates and whether his room was on the second or third floor. On the other hand, she offered testimony that the assaults took place in a room where there were only two beds, although she was unsure whether she was assaulted on the bed on the left or right hand side of the room. She was also unable to recall other details for example, if there was a sink in the room.

[42] I also observe that in first recounting what occurred as part of her examination in-chief, she only mentioned that she said “no” to B.S. kissing her after it became intense, and said “no” again when he threw her on the bed with a two-handed thrust and subsequently pulled down her pants to perform oral sex on her. At first instance, she failed to mention that he slapped her after he began oral sex. When Crown counsel circled back to go over the details a second time, M.B. amplified. She then testified that she said “no” to B.S. five to six times after he began oral sex, and that she tried to “lean up” to him to stop him, whereupon he slapped her hard with his right hand against the left cheek and continued to perform oral sex until he noted her crying. Her recollection was that, after he queried what he did wrong, she dressed and left and they did not speak for days during which he tried by email, text and Facebook apology to communicate with her. Within two weeks, she forgave him and carried on with a relationship that eventually lead to marriage and the birth of their son.

[43] She testified that she deleted her Facebook messages, including any archived Facebook messages, in order to facilitate her attempt to move on, and put the failed relationship behind her.

[44] M.B. admitted that, after her separation from B.S. in mid-2010, the domestic proceedings were not altogether friendly. She also admitted becoming very angry that B.S. did not exercise access in accordance with the court order. She admitted that, after she moved to Ottawa in June, 2012, she received 3 to 4 months of treatment for post-traumatic stress, anxiety, depression and alcohol abuse for which she sought treatments for three to four months during which B.S. took care of their son. She gave evidence that, after she became sober, she began to process the past, including the incident forming the basis of the criminal allegations, and decided to report B.S. to police when she did.

[45] In the course of her examination in-chief, I noted M.B. offered the unlikely testimony that she was not mad at B.S., while at the same time was disappointed by his failure to exercise his parental rights, and meet his parental responsibility.

[46] In the course of cross-examination, the details of M.B.’s statements to Military Police revealed other inconsistencies with respect to her account. She notably agreed that she told Military Police they were used to rougher sex, but never any hitting. She agreed that the kissing and pushing onto the bed was not an abnormal behaviour in their relationship, but maintained that she said “no” before he pushed her onto the bed. She then added she said “no” throughout the whole incident. However, referred to her statements to police in the videotaped interview, she agreed she reported that she told B.S. to stop after her pants were down. In the course of her trial testimony, she offered a revised memory of events, and recalled that she said “no” after B.S. began to kiss her more intensely.

[47] I am unable to rule out the potential that M.B. advanced these allegations as a means by which to use the military system to force B.S.’ hand in the dispute over child support and daycare expenses.

[48] In addition to her Facebook threat of September 2013 to go up B.S.’ chain of command, I acknowledge that the substance of M.B.’s allegations form only a minor part or 9 lines out of 62 in her written statement of January 16, 2014. Moreover, in her videotaped statement she was still inquiring what could be done by the Military Police to assist her in her family law dispute with B.S. She indicated that she did not want trouble for B.S. about the past, but only to assert her rights on behalf of their son.

[49] I am unable to dispel a reasonable doubt as to her animus in advancing these allegations based upon her reluctance to admit that her relationship with B.S. was very bad at the time of her criminal complaint. She had to be taken to her videotaped statement before she acknowledged that she told Military Police her relationship with B.S. was very bad at the time. She also reluctantly acknowledged that she was upset that B.S. made large expenditures in his travel to Ireland and Scotland and to purchase an engagement ring for his current spouse, while he remained delinquent in his obligations towards his son’s support.

[50] Her evidence was internally inconsistent in suggesting that B.S. did not ever receive consequences for his criminal behaviour, notably the charges laid in Gatineau and Trenton, and adding that she never had information about their outcome. When taken to her evidence provided at the preliminary inquiry, she denied writing a letter in support of an absolute discharge for the Quebec charges along the lines of the conditional discharge he received in relation to the Trenton charges. It is evident from reviewing the contents of Exhibit 7 that the letter suggested she received word from an employee in the Belleville courts, Maureen Deschene, and was told of the outcome in Trenton. While M.B. tried to suggest that it was possible B.S. forged the letter, in re-examination she said she could have written it, especially if their relationship was “on again” at the time. I prefer B.S.’ evidence that the letter was read out in open court at sentencing, and that a further copy was provided to him by his criminal counsel in the Gatineau proceedings, Richard Laguerre. There is no credible evidence that the letter was a forgery, and was not in fact penned by her, with or without B.S.’ input.

[51] In any event, the victim impact statement M.B. provided in the Quebec proceedings contained in Exhibit 1 makes it plain that her memory failed her in relation to her belief that B.S. had no consequences for the Quebec charges to which he plead guilty, or that she was uninformed about the outcome of these and the Trenton proceedings.

[52] In addition to concerns I have with respect to the reliability of her memory, and the evidence of animus underpinning the criminal allegations, I am also left in a reasonable doubt by the absence of any Facebook apology in Exhibit 8. M.B. testified that at one time, she had screenshots of the apology but chose to discard these and did not retain the cellphone in order to retrieve them. I have additional concerns as to why she failed to produce the Facebook messages, when asked in the course of the family law proceedings at the settlement conference stage to produce the body of allegedly inappropriate Facebook messages and other communications from B.S. she relied on in support of her prayer for relief in the Application. At her preliminary inquiry, she suggested that the search for the Facebook messages was in the hands of Corporal Grainger of the Canadian Forces National Investigation Services. However, the Investigative Action of Corporal Coughlin in Exhibit 5 suggests that M.B. herself accessed her Facebook account and advised him that she was unable to retrieve her messages from 2008. Her own email to Corporal Coughlin in Exhibit 4 explains that she undertook to gain access to the Facebook messages herself but had been unsuccessful. Finally, in the course of trial, she admitted that she did not follow the process utilized by B.S. to gain access to the contents of Exhibit 8 and 9. As such, and particularly without the assistance of an expert, I cannot rule out the potential that M.B. failed to produce the Facebook messages for 2008, 2011 and 2012 because they would not have assisted her.

[53] M.B. admitted that, at the time of sentencing in Trenton and in Gatineau, B.S. had made strides following participation in anger management and counselling services, cooperated with the Children’s Aid Society and exercised access to their son. She admitted that she was dating him at the time of the Gatineau charges and had an on-again/off-again relationship with him after the Gatineau charges. However, rather than admit that there was any animus against B.S. that diminished during times when their relationship was “on”, she suggested that he might well have forged her signature or cut and pasted segments of the letter to the Gatineau Crown attorney in Exhibit 7. I drew a negative inference from her refusal to make this reasonable admission explaining the contents of the letter.

[54] M.B. admitted that she was disappointed that she had to go to family court and was unable to use a summary process in the military that did not require her attendance in court to resolve the money dispute with B.S. This evidence leaves me in a reasonable doubt that M.B. sought to use the criminal allegations to motivate the military personnel to assist her, when she learned they would not become involved in the family law dispute. Indeed, she found fault with the rules-based system in the military and admitted to a lack of understanding about the correlation between military and regular courts.

Decision

[55] When I consider all of the evidence received from B.S., M.B. and the documentary record, I am left in a reasonable doubt that the charged events occurred as alleged by M.B.

[56] The facts reflect that this was a dysfunctional relationship between two youthful individuals embroiled in a cycle of conflict before the family courts. I am not satisfied beyond reasonable doubt, however, that a sexual assault or simple assault, as described by M.B. occurred in a location and during the timeframe she described. Quite simply, the criminal burden of proof has not been met through no want of skill or effort on the part of the Crown prosecutor involved. The presumption of innocence remains with an accused until such time as the burden of proof to the criminal standard is met. As such, I find B.S. not guilty on all counts.

Madam Justice Toscano Roccamo

Released: December 21, 2016

CITATION: R. v. B.S., 2016 ONSC 8180

COURT FILE NO.: 14-3200

DATE: 2016/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

B.S.

Accused

reasons for decision

Toscano Roccamo J.

Released: December 21, 2016