Court File and Parties
COURT FILE NO.: CR 15-10000076-0000 DATE: 20170421 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – C.T. Defendant
Counsel: Jennifer Lofft, for the Crown Mark Shykofsky, for the Defendant
HEARD: March 6-9, 2017
Reasons for Judgment
S.F. Dunphy, J.
[1] The accused and JS were involved in a romantic and eventually sexually-intimate relationship between October 31, 2013 and April 16, 2014. On April 16, 2014 a final break in their relationship occurred and the accused was asked to leave JS’ apartment. When JS approached the police to seek help in dealing with what she perceived as threatening and harassing behaviour of the accused subsequent to that separation, she also recounted two prior incidents that had occurred before their break-up.
[2] The accused stands charged with two counts of sexual assault, one count of choking and one count of assault arising from those two prior incidents. He is also charged with criminal harassment for events that occurred in connection with the rupture of the relationship.
[3] The trial took place over four days, including final argument. The complainant JS and her mother VS were the only Crown witnesses while the accused testified in his own defence. There were stark contrasts between the evidence of these events related by the two Crown witnesses and the accused. Accordingly, credibility required very careful examination.
[4] I found the evidence of the accused was fundamentally unreliable and tainted by fantasy, insincerity or both in many instances. Insincerity, once detected, becomes like the thirteenth chime of a clock – it casts doubt upon the twelve that preceded it. There were aspects of his evidence that I did accept, but only if adequately corroborated by other sources. On the whole, I concluded that he told the truth only where it suited his purpose while the remainder of his evidence was carefully tailored to fit – however awkwardly – the evidence of which he was aware.
[5] By contrast, I found the evidence of the complainant and her mother to be honest and sincere, even if understandably lacking in precision and detail of recall in some instances.
[6] I have accordingly had to review each element of the charges in the indictment in light of the totality of the evidence to determine what has been proved beyond reasonable doubt and what remains unproved to that standard.
[7] After a thorough review of the evidence, I have found the accused guilty of count 1 (sexual assault re: December incident), count 3 (sexual assault re: March incident), count 4 (assault re: March incident) and count 5 (harassment). I have found the accused not guilty of count 2 (choking). My reasons follow.
Procedural issues
[8] Two motions were brought by the defence in the course of this trial, one at the outset and one following the close of the Crown’s case. Oral rulings were given at the time. I shall describe the motions and my rulings on them briefly here.
[9] Prior to the trial, the accused filed a motion seeking to permit limited examination of the sexual history of the complainant on occasions other than those giving rise to the charges before the court pursuant to s. 276 of the Criminal Code.
[10] The charges relating to the events of December 19-20, 2013 concern an episode of allegedly non-consensual choking that occurred in the course of admittedly consensual sexual intercourse. The intended defence to the charges of sexual assault and choking arising from that incident would be to challenge the allegation of lack of consent as well as to establish the positive defence of honest but mistaken belief. In both cases, a key element of the defence theory was the allegation that the complainant had held a discussion with the accused two to three weeks prior to the incident where both of them discussed their respective sexual likes, preferences and practices and where an agreement as to the acceptability of choking as a practice in their sexual relations with each other was allegedly reached. That agreement, it is alleged, arose from a discussion of a prior relationship of the complainant with a third party that she related to the accused at that time.
[11] In support of this application, the affidavit of the accused alleged:
a. The accused and JS had developed a sexually intimate relationship from November 15, 2013 about two weeks after their initial meeting on October 31, 2013;
b. The complainant shared “that she had practiced and liked sexual choking in a prior relationship”;
c. That the complainant portrayed her appreciation of a man who took charge in the bedroom;
d. That she “would be fine with my initiating choking during sex”; and
e. Upon the return of the complainant from her planned trip to after the incident, the two resumed a sexual relationship and moved in together for parts of February, March and April.
[12] The Crown indicated that the allegations in (a) and (e) were not controversial even if involving sexual relations other than on the occasions subject to the charges and were expected to be admitted during the testimony of the complainant (as indeed they were). However, it was expected that the complainant would deny (b) through (d).
[13] The prior and subsequent sexual history of the complainant with the accused (on occasions not the object of the charges before me) is not in dispute in this case. It is, to a limited degree, part of the narrative of the case and relevant to that limited extent. However, given the lack of controversy as to its main elements, cross-examination in any depth on the subject matter runs the risk of contravening the clear policy of s. 276 of the Criminal Code without in any material way advancing the defence of the accused or his right to a fair trial. Accordingly, I indicated that I expected cross-examination of JS on this subject-matter to be done on a very limited basis.
[14] As regards the prior sexual history of the complainant with persons other than the accused, the case for relevance becomes further strained. In the case of the first charge of sexual assault before me, the issue is not consent to the initiation of sexual intercourse per se but to the initiation of choking in the course of an otherwise consensual sexual encounter.
[15] Prior history of “sexual choking” is of no greater relevance to the issue of the existence of consent or of an honest but mistaken belief in its existence than any other history of sexual relations would be. The fact that the complainant agreed to sexual relations with “X” does not lead to a logical inference that she did so with “Y”. This remains true whether the question relates to what might be termed “traditional” sexual intercourse or any other variety of sexual activity that human desires or ingenuity may choose to pursue.
[16] The only conceivable basis of relevance of this sort of evidence would be if the prior history were actually conveyed to the accused by the complainant along with actual prospective permission to engage in the activity complained of here. Even in that case, the relevance of the prior history is quite limited – it may have limited relevance as part of the narrative establishing an actual grant of permission to employ the practice in question.
[17] I ruled that the accused could examine the complainant about the conversation alleged and its alleged content. However, I ruled that sexual history with others could not be delved into. The question of what was communicated to the accused has relevance but the prior history itself does not render the communication of that history in whole or in part to the accused more or less likely.
[18] The defence suggested that the prior history might be relevant in order to counter any suggestion that the prospective permission alleged was unlikely or implausible simply because the practice itself might be perceived as somewhat “off centre” or unusual. The simple answer to that objection, apart from the obvious one that the court should not be presumed to be so naïve or puritanical in its presumptions, is that the defence can always re-introduce its s. 276 application during the course of the trial should the manner in which the evidence unfolds make relevant matters that appeared irrelevant when viewed prospectively and out of context.
[19] No such subsequent application was in fact made.
[20] At the close of the Crown case, the accused brought a Corbett application. The accused intended to testify in his own defence and sought an advance direction from me that the Crown ought not to be permitted to cross-examine him upon his prior criminal record for sexual assault in an unrelated matter several years in the past.
[21] While unusual in a judge-alone trial, I could see no principled reason why I ought not to have entertained the application.
[22] The particular facts of this case left an avenue of potential relevance of the criminal record of the accused going beyond credibility at large. The complainant had by that time already testified that the accused had told her of a prior conviction and time spent in jail even if he had told her that it was for breaking and entering and not sexual assault. The fact of “a” criminal record had thus already emerged as part of the narrative and was clearly relevant to a number of issues including the nature and reasonableness of the fear apprehended by the complainant and whether certain omissions from her statements to police affected her own credibility. Depending upon how the evidence of those events was related by the accused, it was conceivable that the details of his prior conviction might become relevant for cross-examination purposes.
[23] In the result, I allowed the Corbett application. Evidence of the criminal record of the accused filed in relation to that application remained unexamined by me beyond the common stipulation of the parties that the conviction did not involve JS. I did however leave open the prospect that my ruling may have to be re-examined should it appear that the record of the accused becomes relevant to any issue raised by the testimony of the accused (apart from credibility generally).
[24] As the evidence unfolded, that reservation proved unnecessary and no such further application materialized in respect of this ruling either.
Factual background
[25] The facts relevant to this case span the time frame from October 31, 2013 until April 24, 2014. This is the period of time during which the accused CT and the complainant JS initially met, dated, formed an intimate relationship, moved in together and eventually broke up.
[26] The accused CT is 32 years of age. He has a high school diploma but was inhibited in his studies by dyslexia. He is a skilled tradesperson. He has a union card from the United Association of Plumbers and Pipefitters and is qualified as a Fire Sprinkler Fitter. He earns a good living and hold skills that by all accounts appear to be in high demand.
[27] The complainant, who shall be referred to in these reasons as JS is 28 years old and works in downtown Toronto managing special event bookings.
[28] CT and JS met at a downtown Toronto bar at a Halloween party on October 31, 2013. Each had come with other friends. They met and spoke together for a time. They left separately, but not before exchanging telephone numbers.
[29] The details of their early relationship are of limited relevance. It is sufficient to note that, after dating for a couple of weeks, the relationship became a sexually intimate one. Although initially the couple met primarily at the downtown apartment that the accused shared with a friend, after a time JS brought the accused to her own apartment in west Toronto near Old Mill.
[30] On December 15, 2013, JS gave CT a card playfully asking him to be her boyfriend. He happily agreed. Their relationship had become close and exclusive by that time.
[31] On December 20, 2013, JS was scheduled to travel to California to visit her father over the Christmas holidays. The new couple would be spending the Christmas holidays apart. CT drove to her apartment the night before and was to spend the night and drive her to the airport the next morning.
[32] The events of that evening (December 19) underlie the first two counts (sexual assault and choking) and are reviewed in detail below. In terms of the narrative, it is sufficient to record at this point that the events of that evening were quite upsetting to JS who wrote a detailed note on the plane the next day recording her feelings to which CT responded.
[33] The couple spoke over the telephone on at least one occasion during her vacation but spoke no further of the events of the evening of December 19-20. By the time JS returned to Toronto on or about December 28, 2013, whatever rift had been occasioned by those events appeared to both to have been reconciled.
[34] On Christmas Eve of that same year, a very close friend of CT died of a drug overdose. He learned of this a day or two later. The event was a traumatic one for CT. By his own admission, he reacted badly. He testified that grief drove him to intensify a pre-existing drug habit. His drug of choice was cocaine but he also used ecstasy. In reaction to his friend’s death from drug abuse, he partied and drank more intensively than before. He also resolved to quit his well-paying job in downtown Toronto and did so in the first few days of January.
[35] JS returned to Toronto on or about December 28, 2013. The two pursued their relationship and there was no further discussion of the events of December 19-20.
[36] It was at about this time that JS first became aware of CT’s drug habit. She claimed to have suspected something earlier, but did not want to believe it. At all events, she did not raise her suspicions with him.
[37] The precise chronology of how and when she learned of this habit is not material. Shortly after quitting his job in early January, CT went out with friends and used drugs rather heavily. He drove to JS’ apartment late at night. She found him the next morning asleep on the stairs outside her apartment. The discovery was alarming to her. A discussion followed where he confessed at least some details of his drug history. Both agree that he showed her his arm with both fresh and old scars from intravenous drug use. It was in this same time frame that CT told JS of his experience in jail. However, he decided to lie to her about it. Although he was actually convicted of sexual assault on that earlier occasions, he told her that he had been to jail for breaking and entering and stealing from the houses of drug dealers. He described to JS how easy it was for him to break into some homes.
[38] I pause here to note one of many places where I have found that CT’s evidence about his drug use was both implausible and insincere. He claimed to have used cocaine intravenously on only one occasion prior to his friend’s death on Christmas Eve and indeed it was this same friend who had introduced him to the practice only a few weeks before. The stairwell incident where he showed JS his arms, scarred with old and fresh marks alike, was placed by him in the first few days of January, only a little more than a week after he learned of his friend’s death. If his IV drug use was effectively confined to that one week of binging plus one single earlier incident as he claimed, it strains credulity to suggest that he should have had both old and fresh scars to show her on his arm. It also strains credulity that such a recent and infrequent IV drug user as CT claimed to be would only moments later describe himself as something of an expert in handling needles when trying to explain the hypodermic needles JS later found in his possession.
[39] At about this time, CT decided to go to Fort McMurray in order to help himself change his life. His understanding was that the work sites there were “dry camps” where he would be subjected to urine sampling for drugs or alcohol use before starting work. He would be able to work long hours and weekends for high wages but get frequent blocks of time off to return to Toronto for visits.
[40] CT claims that he remained sober throughout January in order to be sure he passed the drug tests in Alberta. I have strong doubts about whether that is true given the lack of sincerity and candour displayed by CT generally in relation to his drug use. However, the issue is not material.
[41] Also in January, JS and CT decided to move in together, at least after a fashion. They were spending a large amount of time together although it is not clear whether CT gave up his apartment in January or in February. The plan was to look for a new apartment for JS while CT would plan on staying there when he came back from Fort McMurray periodically to visit. An apartment was found in late January on F[…] Boulevard in downtown Toronto starting March 15, 2014.
[42] CT did not want to go on the lease for the new apartment. Accordingly, JS was the only tenant of the apartment when it was rented. However, he contributed half of the first and last month’s rent to her. He did not however pay any part of the rent for her Old Mill apartment that he proceeded to live in for much of February and March.
[43] CT went to Fort McMurry on February 2, 2014 and left his car at JS’ apartment.
[44] Things did not go as planned. CT did not find employment in Fort McMurray. The reason is not material (and I do not take at face value the reasons given by CT). CT decided to return to Toronto a few days after arriving in Alberta. He did not give JS any warning of this decision. On February 6, 2014, CT returned to Toronto and let himself into JS’ apartment at Old Mill.
[45] There is a contradiction in the evidence between JS and CT as to how CT got into the apartment upon his return. CT claimed that he had been given a key to the apartment by JS and used it to enter. JS is quite clear – and I accept – that she had not given him a key. She was at all events quite startled to find him in her apartment when she came home that evening. Having regard to his professed prior experience in house breaking, she believed that he had broken into her apartment, but did not express that belief to him. There was evidence duplicate keys were present in the apartment and CT had effectively been living in her apartment at least some of the time for several weeks before his departure for Alberta. Whether CT helped himself to a key or broke into her apartment is not material. What is material is that this incident added to JS’ belief that CT had skills in getting around locks and breaking into homes. That belief in turn had its origin in the lie CT had told her when describing his prior experience in jail.
[46] Whereas in January, CT had been informally living with JS much of the time, he had not moved his things into her apartment. When he came back from Alberta prematurely on February 6, 2014, he had no place to live. His former room-mate had rented out his room in the apartment he had once shared downtown. He could couch surf with friends or stay with JS. He stayed with JS.
[47] I should state at this point that I attribute no particular importance to whether and when the couple moved in together. There is no dispute that JS wanted to and did pursue the relationship with CT despite the incident in December. Whether necessity or affection was the reason for the couple moving in together is of no importance. They did.
[48] Shortly after returning from Alberta, CT found a job in downtown Toronto.
[49] The second incident underlying the charges faced by the accused occurred in the night of March 14-15, 2014. I shall review the evidence of this incident in more detail below. For the purposes of the narrative, it is sufficient to note that there was an incident that resulted in JS receiving a gash on her head. There is a dispute as to whether this followed an incident of consensual sex (as alleged by CT) or an incident of CT initiating sex with a non-consenting and sleeping JS (as alleged by JS).
[50] The lease to the F[…] Boulevard apartment commenced on March 15, 2014 (or within a day or two of that date). For the next week, CT spent time preparing the apartment for the couple to move into. He slept there some of the time. He claims to have painted and cleaned carpets.
[51] The couple moved into the F[…] Boulevard. apartment shortly thereafter. For the first couple of weeks, things appeared to be working very well in their relationship. Then came the events of the evening of April 16, 2014.
[52] I shall relate the events of that evening and the days that followed in further detail in relation to the fifth count (criminal harassment). In short, JS was spending the afternoon and evening with her mother that day to celebrate her mother’s birthday. Her mother was to stay with them in the apartment that night as her own home was outside Toronto. CT was on his own that afternoon. He used drugs. When JS came home, she suspected the truth. A dispute followed in which CT left the apartment, having returned his key to JS. After CT had left, JS searched the apartment with her mother. They found two injection needles that appeared recently to have been used hidden in one spot and some powder that appeared to be an illicit drug hidden inside CT’s personal bible in the apartment. JS had warned CT about the consequences of bringing drugs into the apartment. She and her mother moved all of CT’s belongings out of the apartment then and there and sent CT a message asking him to come and retrieve his belongings.
[53] CT returned to the apartment on a number of occasions and sent numerous text messages to JS despite her increasingly urgent messages pleading with him to leave her alone. She eventually went to the police for help and the present charges were laid as a result of the evidence she gave the police when interviewed by them.
General comments on credibility
[54] The testimony of the Crown witnesses (JS and her mother VS) and that of the accused CT differ, sometimes dramatically, as regards the events most directly related to the charges faced by CT. On key points, they contradict and cannot be reconciled. It is therefore necessary to carefully consider what conclusions I may fairly draw regarding credibility having regard to the totality of the evidence. The evidence of the accused cannot be assessed in a vacuum any more than that of any other witness can be.
[55] In any case of this nature it is of course incumbent upon me to ensure that I adhere strictly to the presumption of innocence and its corollary, the burden of proof. This requirement takes on added importance where the accused – under no compulsion to testify and with no evidentiary burden to discharge – elects to testify. In such cases, the principles set forth in R. v. W. (D.), [1991] 1 S.C.R. 742 must be kept top of mind by a judge alone just as much as a judge charging a jury.
[56] CT’s evidence was exculpatory. Accepting his evidence would require me to acquit on all charges. Even if I do not accept the evidence of the accused, if his evidence introduces reasonable doubt as to any of the essential elements of the offences with which he is charged, I must also acquit. Even if I reject the evidence of the accused, I must nevertheless scrutinize the evidence to ascertain whether the Crown has discharged its burden of establishing proof beyond a reasonable doubt.
[57] Among other things, R. v. W(D) serves as a salutary reminder that the credibility analysis cannot be reduced to a “winner take all” search for a truth-teller and a liar where there are conflicting stories presented by the evidence. It is entirely possible for the evidence to leave the trier of fact in doubt as to which of two contradictory accounts is accurate. It is possible that neither is wholly truthful as to any or all material details or that neither can be accepted with the requisite level of confidence. In such a case, the human tendency may be to pick the most likely answer. That however would be to apply the civil standard of proof. Criminal law requires the higher standard of beyond reasonable doubt. The risk of error is simply too high.
[58] I shall review the evidence relating to the charges in more detail below and explain my findings in relation to the principal facts. At this juncture, I shall confine myself to some high level comments on the credibility of the three witnesses whose testimony I received.
[59] In the present case, there were a number of instances where the evidence of JS was called into question. Many of these instances were on matters that I might describe as largely if not entirely peripheral. On each occasion where she was challenged, however, it was quite clear to me that what was at stake was clarity and accuracy of her memory as opposed to her core sincerity.
[60] Where her memory was refreshed on cross-examination, she said so. On perhaps the most central point where her credibility was challenged – the question of whether and to what degree she had discussed a previous history of consensual sexual choking – her explanations for apparently inconsistent statements made were both clear and convincing. They were also quite unrehearsed as it was clear that she had not seen the emails that were used to contradict her for some time.
[61] JS candidly admitted the shortcomings in her memory and did not seek to minimize the depth of her feelings for the accused at the time. There was no trace of vindictiveness or animus in her testimony. She was highly credible if not always reliable on lesser matters that had not left a sharp imprint upon her consciousness.
[62] JS’ mother was also quite candid as to her inability to recall much more than snapshots of events. In her case, these “snapshots” appeared to be largely divorced from any ability to place them in order. She was confident in the accuracy of the “snapshots” she did retain, but admitted to being quite unable to place them in any particular order with confidence. She too was undeniably sincere in her evidence. Her snapshots of evidence were reliable as long as I was not required to place them in any particular order.
[63] My impressions of CT and his evidence were to an entirely different effect. While smoothly recounted and never lacking in complete confidence as to the smallest of details recalled in the most vivid terms three years after the fact, the tale that he spun became increasingly implausible as layer upon layer of detail was added. At length I reached the conclusion that CT could not be relied upon to tell the truth at all. He appeared to be looking to fit his evidence to the disclosure he had received rather than to be recalling things from his own lived experience.
[64] I was left with no confidence that any evidence of CT was sincerely given. Even a broken clock is right twice a day. CT did occasionally relate facts that had the appearance of truth about them. However, without a base level of confidence in his sincerity, such evidence is effectively random and cannot be relied upon.
[65] This complete and total lack of confidence in his credibility has not been without creating some difficulties in assessing the evidence. As shall be seen, there was some evidence (in particular, the December 20, 2013 email exchange) from which it might have been possible to form an argument about honest but mistaken belief in consent in relation to the choking incident. However, the burden of establishing that defence lies upon the defence, a difficult task when the party seeking to discharge the burden has succeeded so completely in stripping himself of any vestige of credibility. I have had to work through his evidence to determine whether any of it has created reasonable doubt or whether even without accepting it I might find sufficient grounds to find honest but mistaken belief. My analysis of the evidence on those issues follows.
Events of December 19, 2013 – Counts 1 & 2
Relevant Facts
[66] JS was scheduled to travel to California to spend Christmas with her father on December 20, 2015. CT had agreed to spend the night at her B[…] Street West apartment in order to be able to drive her out to the airport in the morning.
(i) Evidence of JS
[67] JS remembered little of the details of the evening before the choking incident itself. She acknowledged that she and CT had exchanged Christmas presents before her departure – it may have been this evening or a different one. They may have gone out to dinner or they may have stayed in, she was not sure. What she did remember was that they were having consensual sexual intercourse when, without warning or consent, CT began to choke her. She was taken completely by surprise and shocked. She couldn’t breathe. She remembered that CT’s expression caused her to become frightened. She said nothing because she was unable to breathe. She did not resist. She did not attempt to remove his hand from around her neck. Rather, she froze and wanted the whole thing to be over. The incident ended when CT climaxed and ejaculated inside of her. He then relaxed his grip on her neck.
[68] JS was angry that CT had ejaculated inside of her [^1]. She was not yet on the birth control pill and CT knew that he was supposed to withdraw before ejaculation.
[69] She remembered being upset with CT afterwards but asked him only about why he had failed to withdraw. She was also upset about how indifferent he appeared to the fact that he had ejaculated inside her. He did not apologize and merely said “I couldn’t help myself” or words to similar effect. This was not the first time this had occurred (ejaculating inside her instead of withdrawing) and they had previously discussed how much she disliked the morning after pill or “Plan B”.
[70] She did not raise the matter of choking with him at that time. She was in shock. In her words, she had not yet been able to digest it and still wanted to give him the benefit of the doubt.
[71] The next morning they rose early and headed for the airport. There was no discussion of the events of the previous night. En route, she asked him to stop at Shoppers Drug Mart so she could acquire the morning after pill. She was again upset at the fact that he had not even thought of making the stop until she asked him to do so en route and seemed indifferent to the fact she would have to take something that he well knew she did not want to have to take.
[72] The choking incident left her with noticeable marks on her neck and difficulty swallowing. The difficulty swallowing resolved itself after a few days while the bruising marks required her to wear a scarf to hide them from her father for about a week.
[73] On the flight to LA, she composed an email to CT that she sent as soon as she exited the airplane and had WiFi available. She did not have a copy of the email before her while testifying in chief and clearly had not seen it in a very long time. However, she remembered that her purpose in sending the email had been to try to understand why he used so much force. She wanted to believe the best in him and wanted to pursue the relationship but the incident had shaken her.
[74] Up until this point in their growing relationship, JS thought CT to be a nice guy, charming, with a good job and seemingly motivated. While the incident cast a shadow on things, she was still interested in pursuing the relationship. She began to feel less comfortable with him although she did not want to admit this to herself at the time.
(ii) Evidence of CT
[75] The evidence of CT regarding this incident was quite different. He described the incident as having followed an evening of dinner and exchanging of Christmas gifts. As the evening progressed, things started “elevating towards a sexual path”. They started kissing in the living room and made their way into the bedroom while still embracing. JS pushed him on to the bed and ripped off his shirt. She was acting very “aggressively”, pulling his hair, digging her nails into his back and biting his lip. He also described her as exhibiting “defiance”. He felt that he had to “match” her level of aggression. He wanted her to have a gratifying experience. Recalling an earlier discussion where she had allegedly related a prior history of sexual choking and her willingness to introduce that into this relationship, he assumed this would be a good time to do so: “I really thought that was what she wanted”. He placed his hand around her neck and began choking her. He described her as putting her head back and seeming to offer her neck to him. She did not say anything nor attempt to slap his hand away. He applied pressure intermittently so as not to cut her airway but was not sure how much pressure to apply. He didn’t mean to leave any bruises but this was a first time experience for him. He thought that during the experience she “went into her head more” and he wanted her to enjoy the experience. He thought she was climaxing in a way she liked when he did. He described the sexual experience as “wild” and “intense”.
[76] On cross-examination, however, CT admitted that he had no idea whether or when JS climaxed and accepted the assertion that she was passive, lying almost completely still throughout. To put it mildly, CT’s agreement that JS was passive during their sexual encounter – a position he was forced to acknowledge because of the words he himself used to describe the encounter in his email less than 24 hours after the fact – does not sit comfortably beside his portrait of a “defiant” and “aggressive” partner initiating sex, pushing him onto the bed, stripping his clothes, digging nails into his back, pulling his hair and biting his lip. This was one instance – and not the only one – where I formed the view that he sought to tailor his evidence to suit (in this instance to try to use the words “defiant” and “aggressive” found in the email – words which, in the context, appear most likely to reference the dispute at dinner time discussed in the exchange that the couple had not reconciled before going to bed and having sex).
[77] The choking ended when CT ejaculated inside her. He was aware that he was not supposed to do that and they had agreed previously that, because he was not wearing a condom, he would withdraw prior to ejaculation. He was unable to do so in time and the first few pulses were inside her. He couldn’t control himself due to the “level of intensity”. He completed his ejaculation outside of her however. Knowing that he had not withdrawn in time, he immediately told JS. He thought she might not have known otherwise. She was quite upset by the news and got out of bed. She started yelling at him. Her voice was raised and her tone “condescending”. He was apologetic and sorry. His apologies did not register though.
[78] They slept in the same bed that night and he drove her to the airport the next morning. He doesn’t recall noticing the marks on her neck or her making any comments about them. There may have been some tension but he attributed this to the “Plan B” pill that she hated taking. They stopped at Shoppers on the way to the airport. He paid for the pill.
(iii) The email exchange and subsequent events
[79] During the flight to the west coast, JS wrote a detailed email to CT. She testified that her main goal in doing so was to find out why he choked her. However, she also was still very much desirous of pursuing their still new relationship and did not want to upset him either. I quote the most relevant parts of the email below:
“So last night was different lol
You probably realized I don’t like talking much. I’m the type of person that will avoid a conversation like the plague if it means I have to talk about why I feel bad, hurt, sad, mad – basically any negative emotion. I shut down and wall up….
It’s unfortunate that my flight was so early because I would’ve liked to have this conversation in person, but there are a couple of things I need you to explain to me. The first is why you choked me. I don’t have a problem with it happening, I told you I’m open to pretty much anything sexually. But last night it felt like you were doing it out of anger and it felt like you were trying to dominate me – which, again is totally cool; I enjoy being dominated. Maybe it was too soon or maybe because you chose to do it when I was feeling fragile…Either way it just didn’t feel right. It felt too raw and I was feeling too vulnerable after dinner last night to begin with. Then waking up and seeing the marks on my neck didn’t really do anything to help the situation lol I just don’t feel good about it. The second thing is you cumming inside me….
I’m not trying to make any of this a big deal and I’m definitely not trying to make you feel bad. I’m just trying to understand your thought process so that I can better understand the situation”.
[80] CT responded to the email shortly after receiving it (on the same day). His response in its relevant parts is as follows:
“Hi baby!
:) yes it was!!
Last night I was a little confused as of what you wanted from me. I don’t think we should have sex till after we make up. I felt like you were just sleeping with me because you had to and detached yourself from the experience and were just there in the physical. You were being defiant and aggressive I thought what was happening was what you wanted. I was in the wrong to do that to you and I shouldn’t have. I didn’t even think about the marks I would end up leaving on you and I feel so bad. I’m so sorry [JS]. Please forgive me. I was so wrong. I hope there is more time for us to figure out our love life in the future. I want you to be present when making love, however we are make it. Please don’t detach yourself, be present…”
[81] JS remained in the United States over the Christmas holidays returning to Toronto on or about December 28, 2013. While away, the two had one or two telephone conversations. The evidence of both was unclear as to whether there was any further discussion of the choking incident. It is possible they did so on one call, but if so only briefly. Other than the email exchange and the possibility of a brief telephone call, the incident was not discussed by them again. On this at least their evidence concurs. CT did not attempt to re-introduce choking into their sexual relations again. The parties did resume their intimate relationship when JS returned, eventually moving in together in the circumstances described above.
Sexual assault: actual consent to use of choking?
[82] There is no question that JS and CT engaged in sexual relations on December 19, 2013 on a consensual basis. The Crown takes the position that the introduction of choking without consent changed what had been consensual sex into non-consensual sexual assault.
[83] In my view, there can be little doubt that the Crown’s position is, as a matter of law, correct. The choking that occurred in this case entailed the application of force from CT to JS. If I accept that it was applied without consent, there can be no doubt (and CT admitted) that it was part of a sexual act and intended at least in part to heighten his own sexual enjoyment. The question to be answered is whether there was consent in fact to the application of choking at that time and in that context.
[84] Consent of course is a subjective matter but is something whose presence or absence I must determine based upon the evidence before me. If I have reasonable doubt as to the existence of consent following a review of the evidence I must acquit. The burden of establishing the lack of consent lies upon the Crown.
[85] JS of course has been quite emphatic in stating that she did not consent to being choked by CT that evening or ever. She was taken completely by surprise and was frightened and shocked. The defence does not contradict this evidence directly. There is no allegation of contemporary discussion of choking, for example. Rather, I am asked to infer consent from a combination of subsequent and prior conduct.
[86] The defence submits that I ought to disregard the evidence of the complainant and find that consent was in fact given or find that there is reasonable doubt as to whether this was so. While the defence is of course under no burden to demonstrate why the complainant dishonestly denies the existence of consent, it submits that the complainant’s evidence on the matter should be attributed by me to anger or embarrassment arising from the bruises discovered the next day or to some other factor.
[87] The defence asks me to infer the existence of actual consent considering: (i) the evidence of a prior discussion about sexual likes and dislikes where CT alleges explicit agreement on the future use of choking was reached, (ii) the initial denial of any such discussion and then qualification of that denial by JS in her testimony, (iii) the failure of JS to resist the choking in any manner; (iv) her failure to have raised any complaint about it until after the bruises were noted; (v) her failure to raise the matter of the choking on the occasion of her first statement to police and (vi) her general lack of recalled detail of the manner in which their sexual encounter unfolded that evening prior to the choking as evidence of actual consent or tending to diminish the credibility of JS in denying it.
[88] I find that JS’ evidence about the incident in general and her lack of consent in particular is not the result of after-the-fact regrets or embarrassment but was credible and reliable. When choking was initiated by the accused during the otherwise consensual act of sexual intercourse, there was no actual consent granted. The application of that non-consensual force transformed a previously consensual act into a non-consensual assault. The circumstances in which the act occurred – admitted by the accused to be part and parcel of the heightening of his own sexual pleasure – means that the assault committed was certainly a sexual assault.
[89] I have reached this conclusion having decided to accept the evidence of the complainant JS about the incident and having decided to reject entirely the evidence of the accused about the same incident as being fundamentally unworthy of belief and failing to raise a reasonable doubt.
[90] I have found JS’ recounting of these events to be credible in consideration of the whole of her testimony – its strengths and weaknesses appearing to me to be fully natural and consistent with remembering the essential parts of traumatic events in greater detail while having a more general recollection of other events. I have also so found in considering the implausibility of CT’s version of these same events but also considering the increasingly fantastic and implausible nature of the totality of his evidence. I shall expand upon my reasons for so concluding in relation to this event.
[91] Firstly, the choking in this case was particularly severe. The complainant was left with bruising that lasted approximately one week and she had difficulty in swallowing for several days. JS’ description in her email of the choking seeming to have come “out of anger” is also quite consistent with the objective severity of the incident. While the accused submits that such is “always a risk” when sexual choking is used and pleaded his own lack of experience, that is entirely too simplistic a position. Rather, it makes the suggestion that unconditional prospective consent was granted without any discussion of modalities to ensure safety even less credible. There was no suggestion of any such advance discussion of how to choke safely. What did occur was a violent technique the accused admits to having no familiarity with being resorted to with no discussion, taking her by complete surprise. It involved the application of overwhelming force under the apparent influence of anger.
[92] Secondly, the description of the event by the complainant very closely matches the gist of the email she wrote to the accused the next day. That email was carefully phrased to avoid upsetting the accused and damaging a still-valued and growing relationship. As JS put it, she didn’t want to “poke the bear” and was trying to be as re-assuring as possible while getting to her central point: why did he do it?
[93] Thirdly, although I do find that a very general and high-level conversation about “likes and dislikes” had occurred some two or three weeks before this event, such conversation did not include any explicit discussion of choking nor of any actual agreement to permit the use of choking at some unspecified future time by the accused. Needless to say, a general expression of openness to sexual experimentation does not imply a “blank cheque” consent to any practice of any sort without prior discussion.
[94] Fourth, the failure of JS to offer active resistance to the choking does not in any way imply prior consent. The only thing that CT was able to point to in advance of the choking as in any way connoting consent to the choking was the conversation that I have found did not in fact reference choking at all. After he started choking JS without her consent – thereby committing assault – he cannot impose an obligation on the victim to react to his unlawful aggression in a particular manner. Her explanation for her reaction was both sensible and credible. I can infer nothing from her passive reaction – a factor that I shall discuss in more detail in relation to the defence of honest but mistaken belief in consent. As well, consent cannot be said to be obtained where the complainant submits by reason of the application of force: Criminal Code, s.265(3)(a). The lack of explicit resistance in this case does not raise a reasonable doubt about the existence of actual consent.
[95] Fifth, I attach little weight to the suggestion that the evidence of JS about this incident arises not from the incident itself but from the fact of the bruising observed afterwards. The suggestion is one that is simply impossible to sustain. JS’ email makes the context quite clear – “it felt like you were doing it out of anger”, “maybe it was too soon or maybe because you chose to do it when I was feeling fragile”, “it felt too raw and I was feeling vulnerable after dinner last night to begin with”. The marks noticed the next day “didn’t really do anything to help the situation”. JS was looking for an explanation of the choking because it took her by surprise and occurred without her consent and not because she noticed bruises the next day and regretted consent earlier given. As well, a common thread of JS’ evidence throughout was her frank acknowledgement of her feelings for CT and the entire absence of any sense of vindictiveness or animus on her part. JS’ evidence on the issue of her consent was genuine, sincere and not tainted by hindsight.
[96] Sixth, I have attached little weight to the failure of JS to mention the choking incident to the police in the course of her first statement. That statement was given several months after the fact. JS was examined on the question closely at trial and I found her explanation reasonable and credible. At the time of her first police statement, she was primarily concerned with her fear of CT and the events she perceived as threatening to her. As well, she continued to harbour feelings for CT and was not looking to get him in trouble particularly given his disclosure to her of a prison record (albeit a misrepresented record). She did not think to raise it. Only the smallest of snippets of the police statement were played in evidence by the defence and from those it is impossible for me to draw any conclusions as to whether there was a context that ought to have jogged her memory or caused her to reveal the incident. In short, this factor neither brings the credibility of JS into question nor does it raise a reasonable doubt as to the existence of actual consent.
[97] Seventh, the suggestion that JS’ lack of detail in recounting the events leading up to the choking incident detracts from her credibility is entirely backwards in my view. JS had only some supervised access to her prior statements before trial. She had clearly not seen her own email before testifying and was not shown CT’s reply email at all. I found her memory to be quite normally reliable: clear and precise on issues that had a reason to be recalled by reason of importance or trauma; more vague and unspecific on items of less apparent importance to her after the passage of time.
[98] Lastly, the fact that JS and CT resumed intimate relations after the holidays does not tend to demonstrate the existence of actual consent on the night of the 19th of December. JS explained that while she may have been deceiving herself, she chose to give CT the benefit of the doubt. She was still very much interested in pursuing the relationship. JS’ decision may appear in hindsight to have been the triumph of hope over reason. Her behaviour may also be consistent with forgiveness. However, post facto forgiveness does not dispense with the need for contemporary consent. Contemporary consent in this case was entirely lacking.
[99] I find that JS did not in fact grant consent to CT choking her that evening and none of the evidence before me has raised a reasonable doubt as to whether she in fact did so. The accused admits that he choked her in the course of their sexual encounter and that he did so intentionally and for his own sexual gratification. I have found as a fact that JS did not consent to the choking. Subject to the accused discharging his onus of establishing an honest but mistaken belief, the Crown has made out all of the elements of sexual assault as charged.
Sexual assault: defence of honest but mistaken belief?
[100] In considering this defence, I must bear in mind the restrictions Parliament has placed upon it. The relevant ones for the purposes of this case are:
a. Criminal Code 265(3)(a): “no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant”;
b. Criminal Code 265(4): When reviewing all of the evidence for the purpose of assessing the honesty of the accused’s belief in the existence of consent, such review shall include “the presence or absence of reasonable grounds for that belief”;
c. Criminal Code 273.1(1): “Subject to subsection (2) and subsection 265(3) , “consent” means, for the purpose of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question”; and
d. Criminal Code 273.2: “It is not a defence to a charge under s. 271, 272 or 273 that the accused believed the complainant consented to the activity that forms the subject-matter of the charge where (a) the accused’s belief arose from the accused’s … (ii) recklessness or willful blindness; or (b) the accused did not take reasonable steps in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.
[101] The following evidence was relied upon in support of the accused’s professed belief in the existence of consent at the time choking was initiated:
a. The action of the complainant in allegedly “offering her neck” to him by throwing her head back;
b. The allegedly “aggressive” and “defiant” behaviour of the complainant;
c. The failure of the complainant to have voiced an objection or to have offered physical resistance;
d. His own description of the conversation held two or three weeks beforehand where the subject of sexual choking was allegedly raised and agreed to be an “OK” practice; and
[102] I have also considered the degree to which the accused’s own email of December 20, 2013 might be considered as contemporary corroboration of his belief that he thought she wanted him to choke her even if I have rejected the quasi-totality of his viva voce testimony.
[103] In my view, the evidence before me does not permit a conclusion that any of these circumstances, alone or in combination, can sustain the defence of honest but mistaken belief. His fantasy-laden account of her “offering her neck to him” or “retreating into her head” to enjoy the experience to the fullest is utterly incredible and was shredded under cross-examination. I cannot find that the accused gave the matter of consent to choking even passing consideration at the time. He certainly took no reasonable steps in the circumstances to ascertain that she was consenting. He clearly gave the matter no thought at all.
[104] Lack of active resistance to an assault cannot be relied upon as active consent: Criminal Code 265(3). This is particularly so where the circumstances of the assault itself are the reason for non-resistance. This is not a case where consent to choking during intercourse was first given and then allegedly withdrawn.
[105] Consent may be enthusiastic, it may be passionate, it may be affectionate or it may be grudging. It must in all cases be voluntary and it must be present before the action in question takes place. A simple belief in the existence of consent, if the product of recklessness, wilful blindness or a failure to take reasonable steps in the circumstances to ascertain that the complainant was consenting, is no defence: Criminal Code s. 273.2.
[106] Actual, good faith belief in the prior existence of consent to the choking itself is what was required. Indifference to the presence of consent or the making of an uniformed assumption that she would take steps to resist him if she did not are not substitutes for actual consent nor can they be the foundation for a defence of honest but mistaken belief.
[107] The fact of the matter is that the accused took no steps whatsoever to ascertain the existence of consent before starting to choke her. The only circumstance that can be pointed to as actual and advance consent to choking occurred is a general conversation two or more weeks in advance. I have found that the conversation did not extend to an explicit discussion of the subject-matter of choking and, a fortiori , did not extend to an explicit agreement to grant the accused general permission to introduce choking into their “usual” repertoire of practices without further discussion of the particulars. A vague and general expression of openness to experimentation in sexual matters given two or more weeks in advance of the incident cannot reasonably be construed as evidence of prospective and unconditional consent without prior discussion and agreement. Such evidence does not satisfy the requirements of s. 273.2 (b) of the Criminal Code.
[108] I find that CT applied force to JS in the form of choking her. He did so without her consent in fact. The choking was for his own sexual gratification and violated her sexual integrity. CT has failed to demonstrate an honest but mistaken belief in her consent that satisfies the requirements of s. 273.2 of the Criminal Code having taken no steps whatsoever to ascertain her consent to this specific act. Accordingly, I find the accused guilty of sexual assault as alleged in Count 1 of the indictment.
Choking: s. 264(a) Criminal Code?
[109] I cannot however agree with the Crown’s submission that the very same behaviour that it has described as sexual assault can also be construed as the separate offence of choking pursuant to s. 246 (a) of the Criminal Code. There is no evidence that the choking in this instance was to assist the accused in the commission of the indictable offence of sexual assault. The very reason that the consensual sexual intercourse evolved into non-consensual sexual assault was the introduction of choking into the equation. The choking was not a means to assist in the commission of an indictable offence, it was the actus reus of the indictable offence itself.
[110] The Crown has pointed me to no authority that has held that choking can be at one and the same time a means to enable the commission of an indictable offence and a necessary element of the indictable offence itself.
[111] Count 2 cannot be sustained. I find the accused not guilty of choking pursuant to s. 246 (a) of the Criminal Code (Count 2 of the indictment).
Events of March 14-15, 2014 – Counts 3 & 4
[112] March 14, 2014 was a Friday. JS was required to be at work relatively early the next day. However, she had previously agreed to attend a birthday celebration with some of her friends that evening at a downtown bar. Accordingly, she specifically asked CT who was accompanying her to make it an early evening. It was not.
[113] The testimony of both JS and CT in my view agrees to this extent at least: the atmosphere between the two of them cooled as the evening wore on. Their assessment of the reasons why differ somewhat but are not material to this case.
[114] The couple returned to JS’ Old Mill apartment and went to bed. From this point forward their two versions of the events that followed diverge quite dramatically. They may as well have described two entirely different events.
Evidence of JS
[115] JS remembered being quite tired when she got home. She got into pyjamas, went to bed and fell asleep quickly. She awoke some time later to find CT on top of her having sexual intercourse with her [^2]. Her pyjama bottom had been removed. She also noticed that her rear end felt sore and saw a jar of Vaseline on the bedside table that had not been there before. She got out of bed shaken and startled. She told CT variously to leave her alone and not to touch her. She was alarmed and upset. CT for his part got out of bed and followed her in the apartment. She thought he was trying to hug her or grab her. He explained to her that he thought her body was responding to him. He told her that he wanted to “end the night right”.
[116] JS continued to push him away while CT continued to try to hold her. He grabbed her and pushed her forcefully on to the floor in the living room while holding her. In being put down to the ground, her head hit something – possibly the door frame between the hallway and the living room - and she received a big gash on her head. She asked him why he had hurt her but he didn’t acknowledge her. CT simply went to bed on the couch in the living room. JS then washed her head wound in the sink and went to bed. She slept alone in the bed and went to work the next morning without speaking to him about the incident.
[117] At work the next day, JS sent CT several “selfies” she took in a mirror at the office with her cell phone. These depicted the wound on her head, bruises that had appeared on her chest, shoulder and arms as well as a scrape on her elbow or forearm. The pictures showed a large bruise on one arm above the elbow, a significant gash on the top of her head, a scrape on her forearm just below the elbow and several smaller bruises on her shoulder and chest (the latter being hard to see on the low-resolution court copies, but testified to by JS). The two corresponded about these pictures by text message and CT was very apologetic.
[118] CT brought her flowers and lunch at work and they talked for a while in her office over lunch. In particular, they discussed whether she would go to the police. CT had a police record and JS did not want to get him in trouble and decided not to. As she had a planned outing with some of her girlfriends that evening, they agreed that she would explain her injuries by telling them she had fallen down the stairs at her building.
[119] The wound on her head measured almost one inch in length and was still quite visible more than a month later when the police took pictures of it.
[120] As I have noted, I have found JS’ evidence to be credible and reliable. It is corroborated closely by the evidence of the “selfies” she sent, copies of which were entered as exhibits at the trial.
Evidence of CT
[121] Once again, I have found CT’s version of these events to be a product of fantasy or deliberate fabrication to fit disclosed evidence. I am unable to afford it any credence at all. A summary of his story follows.
[122] After returning to the apartment and getting ready for bed, the couple went to bed facing each other. After some cuddling, JS initiated what became an increasingly passionate sexual encounter by reaching down to stroke his genitals. As things unfolded, CT ended up having sexual intercourse with her “doggy style” while simultaneously penetrating her rectally with his finger. Without warning, JS leapt out of bed and ran to the bathroom. She returned brandishing what he at first described as a “rag” and then decided was actually a bunch of toilet paper that was stained with blood. The blood came from her anus. She was angry with him for cutting her. He surmised that his rough workman’s fingers must somehow have “nicked” her rectum while he was penetrating her digitally.
[123] JS seemed quite agitated. CT simply wanted to leave the room to get away from her shouting at him. He wanted to avoid a scene. He tried to leave but found that JS was blocking his passage brandishing the “rag” and continuing to remonstrate with him. He tried to slide by along the wall. She dropped “the rag [^3] ” and started to choke him with both of her hands wrapped around his neck. In self-defence, he grabbed her arms at the bicep and pulled her quickly towards him to break her hold on his neck. He then picked her up and “gently placed her on the ground”. On the way to the ground, she somehow “scraped” her head.
[124] CT dismissed the significance of the jar of Vaseline on the bedside table. This was something he claimed to use frequently throughout the apartment because of his dry skin in winter. He contradicted JS’ evidence that that the jar was stored in the bathroom and had not been taken out.
[125] A few moments after placing her on the ground, he noticed the cut on her head and pointed it out to her. He washed it, disinfected it and tried to convince her to go to the hospital for stitches. She declined. He described in detail JS sitting on the couch while he cleaned and disinfected the wound carefully. After he was unable to convince her to go to the hospital, he described tying the strands of her hair together so as to bind the scalp and hold the wound together somewhat [^4].
[126] CT slept on the couch that night. The next morning, he said that JS declined his offer of a ride to work and went to work on her own. However, they did agree to meet at lunch. At lunch time, he went to a nearby mall and bought flowers and lunch items. These he brought to her office and they ate lunch together there.
[127] CT testified that for the next several days he would clean her head wound each morning before JS went to work. On cross-examination, he admitted that he actually rose several hours before JS whose hours were quite irregular, but simply claimed that he nevertheless woke her at 5:30 a.m. for the purpose. None of this aspect of his story was put to JS nor did it bear the smallest ring of truth. Among other things, CT also testified to being away for much of the next week at the new apartment cleaning it and preparing it for them to move into.
Findings
[128] I have no hesitation in rejecting CT’s evidence about this event entirely. Indeed, his story appeared to me to be so fantastic, implausible and divorced from any reasonable view of reality that it greatly reinforced the negative views I formed about the sincerity and reliability of much of the rest of his evidence. Once again, the events were recounted with such a wealth of minute detail as to resemble fiction more closely than honestly recalled fact.
[129] I shall not endeavour to list each and every point of evidence of CT that I reject and why. I have indicated a few of them above. The events of the next day are in my view quite telling. If, as CT described it, the entire incident arose as a result of JS severely overreacting to an inadvertent accident as part of consensual sex or his own self-defence reaction to her alleged choking, the discussion that CT admits occurred about JS going to the police the next day seems quite out of place. If CT had so intimately cleaned and bizarrely bound JS’ head wound, why would she have sent him a picture of a wound he knew better than she the next day? CT’s description of grabbing JS’ arms under the biceps to stop the alleged choking seemed designed to explain the “selfies” showing pronounced bruising on her arm in that place but is a rather unlikely location to find an injury sustained as a result of self-defence resistance to choking by a smaller and weaker woman. CT’s description of the manner in which he “gently” put JS to the ground does not in any way explain multiple bruises and scrapes as well as the severe head wound. The entire edifice of his testimony smacks of fabrication, fantasy or both.
[130] I fully accept JS’ evidence about these events. It was reasonable, plausible and credibly recounted. The alternative reality of consensual sexual intercourse CT described in his evidence never occurred. I find that CT applied physical force for a sexual purpose upon a sleeping JS who gave no consent to it at all. He took no reasonable steps to verify whether she was conscious and consenting. She was in fact neither conscious nor consenting. In so doing, CT sexually assaulted JS. I find CT guilty on Count 3 in the indictment.
[131] I further accept JS’ evidence that, following her getting out of the bed to put an end to the sexual assault that occurred, CT pursued her and physically assaulted her resulting in bruises to her chest, shoulders and arm, a scrape to her forearm and a severe wound to her head. He intended to apply force to her and did so without her consent. The act was not in self-defence as alleged. The alleged choking by JS is the product of fabrication. In so doing, he assaulted JS. I find CT guilty on Count 4 in the indictment.
Events of April 17-24, 2014 – Count 5
[132] JS and her mother had agreed to celebrate her mother’s birthday on April 16, 2014 (one day late). JS took a half day off work and planned to spend the afternoon with her. As her mother was from out of town, it was planned that JS’ mother would stay the night in the F[…] Boulevard. apartment. At one point in the afternoon JS dropped into the apartment to drop off some minor purchases they had made. From messages exchanged with CT in the afternoon, she understood that he had come straight home from work and was in the apartment. He was not and this apparent deception was a matter of some concern to JS.
[133] JS and her mother went out to dinner and came back near 11 p.m. CT was home and in the bedroom but not asleep. JS found his behaviour odd. He avoided eye contact and seemed evasive. At one point they had a sotto voce argument in the bedroom where she asked him if he was using drugs again and demanded to see his arms. CT refused to let her see his arms and after a time decided to leave the apartment to go for a walk. JS made it clear to him that if he did so, she wanted him to return the keys to her apartment. This he eventually did. When he left, she went down and told security that he was not to be allowed back into the building.
[134] What JS did not then know is that CT had in fact been using cocaine that afternoon – something he revealed in court. Her suspicions were thus quite well-founded. CT admitted to having seen his former roommate with whom he had frequently “partied” in the past and asking for and receiving some cocaine. He denied taking the cocaine intravenously and in fact admitted to no intravenous drug use after early January – a denial that appears quite impossible to reconcile with his stubborn refusal to show his arms to JS or with his later text message “I want to hold you with these scared (sic) up arms”.
[135] Having been turned out of the apartment and surrendered his keys, CT turned to a friend to stay for what remained of the night. At about 5:30 a.m. CT returned to the building to get items he needed for work. He had no keys. JS arranged to have her mother go downstairs and hand him his work things in the apartment lobby.
[136] I have not related all of the details of the somewhat conflicting accounts of this evening and the events of the following days by the three witnesses. CT agreed with most of the facts described in JS’ evidence although painting himself in a much more sympathetic light while doing so. JS’ evidence was also corroborated as to its main points by her mother even if her mother proved quite unable to recall the order in which most of the snapshots of information she recalled should be placed. As to the main points of the narrative, I have once again found CT’s evidence to be self-serving and unreliable. I have accepted JS’ evidence as being always sincere even if her memory of some of the more minor points of detail has been dulled.
[137] Criminal harassment under s. 264(1) of the Criminal Code requires proof that CT acted
a. Without lawful authority;
b. Knowing another person is harassed or reckless as to whether the other person is harassed;
c. Engages in conduct referred to in s. 264(2) that causes that other person reasonably in all the circumstances to fear for their safety;
[138] What conduct engaged in by CT falls within the conduct described by s. 264(2) of the Criminal Code?
i.“… repeatedly communicating with, either directly or indirectly, the other person ” (s. 264(2)(b)).
CT sent a series of text messages to JS between Thursday April 17, 2014 and Tuesday April 22, 2014 despite receiving increasingly blunt messages that JS feared him and was insistently demanding that he stop communicating with her in any way. In addition to the text messages, he came to her apartment in the afternoon of Thursday April 17 to demand funds from JS and admitted that he returned to the building to attempt to demand still more money from her on Monday April 21, 2014 but was denied entry by security on instructions from JS.
ii.“… engaging in threatening conduct directed at the other person ” (s. 264(2)(d)).
By the early morning of Thursday April 17, 2014, CT knew that he had been “kicked out” and that JS clearly did not want to see him. Her blunt text message later that morning left nothing to be doubted – his belongings were behind his car and he was expected to leave with his car by 8 p.m. that evening. Instead of retrieving his belongings from the garage and leaving, he went directly upstairs to her apartment. Having no key to get into the building, he followed other tenants in who had a key. In other words, he snuck in. He entered JS’ unit unannounced and uninvited. He did not knock on the door. He was not given entrance.
CT claims he found the door to the apartment unit unlocked despite JS being confident that she always locked it. Whether the door was locked or not, the door to the building certainly was locked and he had snuck past that barrier by craft and subterfuge not by invitation. The door to her unit was certainly not opened to him. He opened it uninvited and walked in. He did so knowing he was not the tenant, having surrendered his keys and having been told the relationship was over and his things were down by the car. His conduct was inherently threatening and directed at JS.
JS and her mother were home. He was quickly able to see that his things had in fact been removed from the apartment as JS’ text message had already told him. He demanded money from JS to compensate him for what he felt he had lost by being kicked out. The money he demanded was money he knew she did not have. However, he would not leave until he had the money and proceeded to make himself at home in the living room. JS’ mother agreed to make the payment he demanded so that he would leave. He did not leave until he had confirmed receipt of her electronic transfer.
I fully accept the evidence of JS and her mother that this conduct was perceived by both as threatening and left JS quite shaken. On Monday April 21, 2014 CT admitted that he attempted to return to make a further demand for money but was thwarted by security who refused him entry to the building and notified him that he was banned at JS’ request. He later wrote to her complaining of having been banned from the building. I find this conduct to have been clearly threatening conduct directed at JS.
[139] Did CT have lawful authority to engage in this conduct? The defence argued that CT had every right to show up at the apartment on the occasions that he did. He had been sharing it with JS and had contributed half of the rent deposit of the last month’s rent plus contributed to buying at least some of the furniture.
[140] In my view, this claim to lawful authority rings quite hollow. CT knew and understood that it was JS’ apartment. When she signed the lease, he had been intending to live full time in Fort McMurray and only return intermittently. He knew he was not on the lease as tenant even if he had contributed part of the deposit of the last month’s rent. On the night of April 16-17 when CT left the apartment he knew it was for a period of time at least – he agreed to surrender his keys to the apartment before leaving and found somewhere else to sleep that night. He knew and understood that he had crossed a red line by bringing drugs into JS’ apartment. Coming back the next morning to retrieve his work things, he was denied entry. When JS’ mother came down to deliver his things, he understood that he had been kicked out and that JS did not want to see him. Later that morning CT received a quite unmistakeable text message that JS was “done” and had put all of his belongings with his car in the garage along with a direction that he remove his belongings and car from the garage by that evening. CT responded to this text in terms that made his understanding and acceptance of the situation equally unmistakable (“Okay sweet. Thank you Jennifer. I am really sorry”). If CT thought he had lawful authority to come back to the apartment at 5:30 a.m. on April 17, 2014, he had no good faith basis to think so after the exchange of text messages just a few hours later.
[141] Further, his claim to be owed money was just that – a claim to money. JS disputed it, and reasonably so. He knew he had no right to occupy the apartment and did not ever claim to have one. He was coming to the apartment and sending messages to demand money not shelter.
[142] Did JS reasonably find his conduct to be harassing?
[143] There can be no doubt whatsoever that CT’s conduct left JS thoroughly shaken and fearful. Her mother described JS’ distress quite eloquently as did JS. She was paralysed with fear in her own apartment. She took to leaving coins on door handles to provide her with some audible warning if he broke in so fearful was she of his skill at getting through locked doors. She finally felt she had no choice but to approach the police for help.
[144] In the context, JS was quite reasonable in having that reaction. Consider her history with CT:
a. He had choked her in December with sufficient force to leave bruises in circumstances where she felt anger had played a part - a sentiment that she had conveyed explicitly to CT in her email to him of December 20, 2013;
b. He had violently “put her to the ground” in March leaving bruises and a long, deep gash on her head and had a discussion with her about whether she would go to the police about the incident where he tried to dissuade her from doing so;
c. He told her about having been to jail for “kicking in doors” of drug dealers (even if this was a deliberately false claim concocted by him to conceal from her the true reason for his actual incarceration) and claimed to have expertise in breaking into homes;
d. He had appeared on two separate occasions in her apartment unexpectedly (in February at the Old Mill apartment and on April 17 after being kicked out of JS’ new apartment at F[…] Boulevard.) and in circumstances where she reasonably expected that he may have used his claimed expertise in breaking into homes;
e. He was considerably stronger than she;
f. He was using drugs;
g. He repeatedly ignored her requests to be left alone; and
h. He came uninvited into the apartment after he had been kicked out to demand money on April 17, 2014 and refused to leave until he confirmed that JS’ mother had in fact transferred the money he demanded.
[145] JS reasonably concluded that CT would not leave her alone. The day after his odd and manipulative “last” text message on April 22, 2014, she went to the police and gave the statement that led to the charges CT now faces. She did so after an attempted forced entry of her apartment the day after CT’s “last” message. There is no evidence that CT was in fact responsible for that attempted forced entry even if she suspected that he was. However, this was clearly the straw the broke the camel’s back and sent her to the police for help.
[146] Not only was JS thoroughly and completely intimidated by CT’s conduct, but CT was well aware of that fact. He admitted that he was looking to get still more money from her when he unsuccessfully returned to her building on April 21, 2014 and was prevented by security from coming upstairs. The increasingly desperate and explicitly fearful tone of JS’ text messages to him can have left him in no doubt as to the state of mind his actions was creating in her.
[147] I therefore find that the conduct of CT described above was criminal harassment contrary to s. 264 of the Criminal Code.
Disposition
[148] In conclusion, I have found Mr. C.T. to be guilty of four of the five counts in the indictment. I have found him guilty of sexual assault as alleged in counts 1 and 3, of assault as alleged in count 4 and of criminal harassment as alleged in count 5.
[149] It is clear that at least some of the charges will raise an issue under the principles in Kienapple v. R., [1975] 1 S.C.R. 729. I shall receive submissions on that issue when I hear submissions on the matter of sentencing. I shall now receive submissions on the timing of that sentencing hearing and any other orders that I may be requested to make in connection with this judgment.
S.F. Dunphy J.
Released: April 21, 2017
COURT FILE NO.: CR 15-10000076-0000 DATE: 20170421 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – C.T. Defendant REASONS FOR JUDGMENT S. F. Dunphy, J.
Released: April 21, 2017