R. v K.D.B., 2017 ONSC 3746

Court File and Parties

COURT FILE NO.: 15-40 DATE: 20170623

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486(3) OF THE CRIMINAL CODE OF CANADA

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – K.D.B Defendant

Counsel: Jason Pilon, counsel for the Crown William Wade, counsel for the Defendant

HEARD: August 23, 24, 25/2016 and May 10, 11/2017

REASONS FOR JUDGMENT

Laliberté, J.

Introduction

1The accused, K.D.B, is charged under a six count indictment.

2Crown counsel indicated at the outset that he was not proceeding with counts 4 and 5 which relate to a firearm.

3K.D.B plead guilty to failing to keep the peace and being of good behavior contrary to section 145 of the Criminal Code. The only issue is whether this breach is based on the commission of a sexual assault and/or the administration of a stupefying drug to the complainant or having breached a section 110 firearm prohibition.

4He has also plead guilty to having breached a section 110 firearm prohibition.

5He has plead not guilty to section 271 (sexual assault) and 246 (administration of a stupefying substance).

6The essence of the allegations is that on or about October 5th, 2015 the accused would have sexually assaulted the complainant M.L. after providing her with a drug, namely lorazepam.

7M.L. was residing with him and his partner T.L. at that time in Cornwall.

8The complainant has no recollection of the incident and states having awakened next to him with semen on her back.

9The accused testified in his defence and denied the allegations.

10Properly articulated, the issue for the Court is whether the Crown has established each of the essential elements of these offences beyond a reasonable doubt.

11The Court`s judgment is structured as follows:

1. A review of the relevant evidence.
2. The position of the parties.
3. The identification of the relevant legal principles.
4. A discussion of the Court`s findings.
5. The verdicts

The evidence

12Much to counsels’ credit, there were a number of admissions made under section 655 of the Criminal Code.

13They are as follows:

1. Identity of K.D.B.
2. Territorial jurisdiction… if this happened, it was in Cornwall.
3. Relevant dates are October 5th and 6th, 2015.
4. No issue of continuity with the Exhibits.
5. Photographs and copies are accurate depictions of what is shown.
6. The Court was advised that K.D.B. provided a statement to the police on October 8th, 2015 which is admitted as having been voluntary. It is not part of the Crown`s case but may be used for cross-examination.
7. Vivienne Luk`s expertise as a forensic toxicologist/ pharmacologist is admitted.
8. Ms. Luk`s report will be filed as an exhibit. It confirms the presence of lorazepam in a urine sample provided by the complainant.
9. The pellet handgun located at the accused`s residence is a firearm as defined under section 2 of the Criminal Code.
10. K.D.B. was prohibited from possessing a firearm under section 110 of the Criminal Code at the relevant time.
11. He was also bound by two distinct undertakings given to an officer in charge with one of the conditions being that he was to keep the peace and be of good behavior.
12. The accused had a prescription for lorazepam at the relevant time, and the bottles found at his home by the police were his.
13. The nurses who dealt with the complainant and the identification officers are not tendered as expert witnesses.
14. There are no section 276 application (deals with complainants sexual conduct in other instances) and 278 (deals with access to complainants therapeutic records).
15. The complainant alleges that the accused made sexual comments and touched her inappropriately on occasions prior to the alleged sexual assault. While these are denied, defence agrees that there is no need for the Court to rule on whether this amounts to other discreditable conduct. It is not to be considered as evidence of propensity but rather goes to the accused’s state of mind and motive to commit the alleged offences.

14Again, much to counsels’ credit and ability to focus on the more significant issues, there were a number of Exhibits which were filed on consent. These will be referred to by the Court while reviewing the testimony of the witnesses.

15It was also agreed that the lead investigating officer, Detective Constable Mathew Lemire would provide hearsay narrative type evidence. The purpose is to explain the unfolding of the investigation.

16The Court heard evidence from the following witnesses:

Crown

• Detective Constable Mathew Lemire
• Loree Lalonde (Nurse)
• Stacey Chisholm (Nurse)
• M.L. (Complainant)
• Vivienne Luk (Toxicologist)
• J.W.

Defense

• K.D.B.
• S.S.
• J.T
• Detective Constable Mathew Lemire (recalled on consent)

Detective Constable Matthew Lemire

17Detective Constable Mathew Lemire is a member of Cornwall Police Services. He has been assigned to the sexual assault and child abuse unit since October 2014. He is the lead investigator in this matter.

18He indicated that Constable Kelly Zeran is the first Officer who dealt with the complainant, M.L.

19M.L. had contacted the Cornwall Police on October 6th, 2015. Constable Zeran responded to the call and attended 214 York Street in Cornwall at 8:02 p.m. where she met her.

20Constable Zeran spoke to the complainant and was advised that:

• She had been sexually assaulted
• The incident occurred at 494 5th Street West in Cornwall
• She provided 2 names for the suspect, namely K and D
• It would have occurred on the evening of the 5th of October leading to the 6th.

21The detective explained that there are 2 units at the address 494 fifth Street West, namely units A and B.

22Unit B was occupied by the accused, his partner T.L. and the complainant.

23Unit A was occupied by J.W.

24Photographs 1-2, 1-3 and 1-4 are identified as showing the exterior of this residence.

25The Court is advised that M.L. described the alleged actions of the accused. That she was given medication and woke up close to him.

26She was transported to the Cornwall Community Hospital by the police. She dealt with nurses from the Assault and Sexual Abuse Program (ASAP).

27The Court understands this team to be made up of specially trained nurses who have dual responsibilities:

1. Provide care and treatment for victims of sexual and physical violence.
2. Locate and preserve evidence of such violence through questions and examinations.

28M.L. arrived at the hospital with the officer at 9:40 p.m.

29She spoke to ASAP nurse Loree Lalonde who was assisted by Nurse Chantal Seguin.

30The officer states that M.L. became impatient. She was tired and was not cooperative.

31She was brought to the Police Station where she provided a video statement to Constable Van Den Oetelaar.

32Following this, she was driven back to 214 York Street, at her friend’s residence.

• Constable Zeran seized some items from M.L., namely:
• Pyjama pants
• Tank top
• Sports bra
• Underwear

These were taken by the officer on October 7th, 2015 at 1:00 a.m. They are shown on page 3 of Exhibit # 7 which is a list of items seized by the police during this investigation.

33The officer confirms that the ASAP sexual assault examination process had not been completed during this first visit because the complainant became impatient.

34Detective Lemire was assigned this investigation on October 7th, 2015.

35He received and reviewed information provided to him by other officers. He concluded that there were reasonable grounds to believe that offences had been committed by K.D.B at his residence, namely section 271 and section 246.

36On October 8th, 2015 he obtained a search warrant for the residence located at 494 (B) Fifth Street West.

37He attended this location with other officers on October 8th, 2015 at 10:47 a.m.

38They went to the side door and noted a sign stating:

“If you’re here for a place to stay this isn’t a shelter! Fuck off get off my property”

39This is shown on photograph Exhibit # 1-5.

40The accused answered the door. T.L. was also present in the home.

41K.D.B. was arrested for a sexual assault, having administered a substance and breach of undertaking.

42He was asked if he wanted to leave some items at home and he placed his wallet, a set of keys and a lighter on the kitchen table.

43The officer explained that he had met the complainant prior to the search. Arrangements were made for her to return to the Hospital to complete the sexual assault kit examination. She attended on October 8th, 2015.

44The officer goes through the areas which were searched at the home and the items which were found and seized.

45These findings are shown on the photographs filed as Exhibits 1.

46He was assisted by identification officer Constable Lalonde and Constable Frappier.

47The findings can be summarized as follows:

1. The firearm was found in a dresser located in the living room; the officer can’t say if it was loaded; there were no pellets.
2. A Tommy Hilfiger shoe box was located on a shelf in the kitchen which contained different types of medication as shown on photograph Exhibit # 1-12. There were different containers in the accused’s name. Pills were in different sizes and forms. One such bottle contained lorazepam pills which were different in form than the others, they are longer and oval. Two pills of each type were kept by the police for analysis and the rest provided to the accused who was in custody.
3. An empty bottle of lorazepam made out to the accused was found in a small wooden desk in the master bedroom which was used by the accused and T.L.
4. The officer also testified in regards to a second bedroom which was used by the complainant and identified by her as the location where the alleged incident occurred. There is a bungee type chord which seems to keep the door closed; there is no handle. There were beer bottles in this room as shown in photograph Exhibit # 1-17. The Court is shown photographs of the bed in the second room where the incident is said to have taken place.
5. A lock box was found in the master bedroom. It was closed and locked. The officer unlocked this lock box by using one of the keys left by the accused on the kitchen table. There was a clear unlabelled and empty pill bottle found in this box. There was also numerous individually bagged cocaine found, described as “small dime size bags”.
6. Also found in the master bedroom was a black box in which there was a pill bottle which did not match the description of the pill given by the complainant. The bottle was not in the accused’s name but in the name of Martine Berniquez-Poliquin.
7. Sheets, duvet cover, blankets and comforter were also seized.

48All of the items are noted in Exhibit #7.

49The search ended at 12:05 p.m.

50T.L. was arrested in regards to the cocaine. She was still at the residence. This was at 12:08 p.m.

51At 12:10p.m., T.L. received a phone call on her cell phone from 613-361-1282 which was linked to a S.S. She is the accused’s ex-spouse.

52T.L. stated the following while on the phone:

• “They found it”
• “they found your stuff”
• “I’m going down to the cop shop”

53Her phone was seized.

54She was brought to the police station where she was interviewed on video by the police. She was released on a Promise to appear.

55K.D.B. was interviewed from 4:41 p.m. to 4:59 p.m. He spoke to counsel during this period of time.

56Detective Lemire was advised that the second ASAP examination of the complainant had been completed. He attended hospital on October 14th, 2015 where he retrieved medical records and reports filed as Exhibits # 9, #10 and #11.

57He was also provided with samples of urine and blood taken by the ASAP nurses from the complainant.

58These were turned over to identification officer Lalonde who in turn sent same to the Center of Forensic Sciences.

59The firearm was also sent for examination.

60The officer explained having received the following reports with the noted results:

1. Center of Forensic Sciences biologist Johanne Cox provided a report dated November 13th, 2015. Report states that no male DNA was found on swabs taken from complainant by the ASAP nurses. These were taken from her vaginal and anal areas.
2. CFS biologist Nicole Vachon reported on November 30th, 2015 that complainant’s underwear revealed blood but no semen. There were 2 contributors to DNA one being the complainant the other was not suitable for comparison. No other substance was detected on complainant’s other clothing.
3. CFS biologist Margaret Henry reported on May 6th, 2016 that no semen was located on the bed sheet and cover. There was some blood located on a sheet but she can’t say if it was human. It wasn’t sufficient for DNA analysis.

61Finally, the officer described his dealings with J.W. on August 22nd, 2016, which was the first day set for this trial.

62At 9:55 a.m., the officer was advised by a secretary from the Crown Attorney’s office that a male wanted to speak to him.

63He met with J.W. who advised that he had heard of this trial and had information in regards to the accused, his partner T.L. and the complainant.

64J.W. provided a statement to Constables Zeran and Frappier.

65In cross-examination, the officer provides the following information:

• There is a door which separates apartment A and B at 494 Fifth Street West but it cannot be locked.
• His first physical contact with M.L. was at 2:30 p.m. on October 7th, 2015. He can’t describe her state on October 6th, 2015 when she initially complained.
• He doesn’t believe that the statement given by the complainant to Officer Van Den Oatelaar was sworn.
• Reaffirms that the ASAP examination wasn’t completed when she first attended the Hospital and this was at her insistence.
• Officer agrees that the firearm he seized can be bought at stores such as TSC; the firearm was empty
• The accused was cooperative when the warrant was executed; it was shown to him.
• The 2 lorazepam pills were seized from a bottle found in the Tommy Hilfiger box on the kitchen shelf; it was 1mg and given to Constable Lalonde.
• He can’t recall if there was a sleep apnea machine in the master bedroom on the night table.
• He states there was a door knob for the master bedroom door.
• He confirms that an officer attends at Hospital for an ASAP examination; the officer waits outside the room during the examination.

66The officer is questioned in regards to J.W.. He is unaware of any connection between the complainant and this individual other then they resided at 494 Fifth Street West in different apartments.

67In re-examination, he states that the Tommy Hilfiger box was over his eye sight some 6 feet from the floor.

68He confirms that there is a velocity warning on the firearm.

Loree Lalonde

69Witness Loree Lalonde is a registered nurse assigned to the Assault and Sexual Abuse Program at the Cornwall Community Hospital (ASAP). As such, she has received special training. ASAP’s role is to treat and collect evidence form alleged victims of physical and sexual violence.

70She notes that she was the primary nurse who dealt with the complainant M.L. during her first visit at the hospital on October 6th, 2015. The complainant attended in triage at 6:52 p.m. The witness first met her at 10:30 p.m.

71She identifies Exhibit #9 as the nursing documentation prepared in the course of the complainant’s examination. Her observations were recorded on these forms

72The complainant was not sure what medication she was given. She stated that she had “woke up naked next to him” and was unsure of details of the assault but mentioned that she had body fluids on her back.

73She explained that the complainant had refused the “sexual assault kit” which includes an examination of a patient’s genitals. She has no recollection why she declined.

74The front and back of the complainant’s body was examined through a fluorescent light with a view of detecting body fluids such as sweat, saliva and semen. The witness states that she did not see anything. The witness is unsure whether the complainant told her she had showered but if she did, body fluids would have been wiped off.

75The witness was shown Exhibit # 10 which she identifies as a report showing results of a urine sample taken at 11:45 p.m. on October 6th, 2015. This report confirms the presence of alcohol in the complainant’s system. It also shows the presence of benzodiazepine which she notes is a prescribed drug for anti-anxiety and insomnia.

76The complainant was discharged from the hospital at 11:30 p.m.

77In cross-examination, the witness confirms having no recollection of the complainant’s demeanor when she attended the hospital and that the fluorescent light did not reveal the presence of body fluids. She thinks there could be fluids in minute amounts following a shower.

78The witness does not recall seeing any injuries on the complainant.

Stacey Chisholm

79Witness Stacey Chisholm is also a registered nurse assigned to ASAP at the Cornwall Community Hospital

80The witness is shown and identifies Exhibit #11 as a form in which she recorded her observations, her actions and information received from the complainant.

81She is the nurse who dealt with the complainant during her second visit at the hospital on October 7th, 2015.

82The complainant attended the hospital at 2:43 p.m. with Detective Lemire. She had changed her mind and wished to proceed with the sexual assault kit examination she had declined with Nurse Loree Lalonde.

83The witness explained that this portion of the examination is more invasive as it involves swabbing of body parts.

84Specifically, the examination of the complainant consisted of the following:

• Urine sample taken at 2:53 p.m.
• Sample of blood taken at 2:57 p.m.
• External examination of her genitals
• Vaginal and rectal swabs

85The witness notes that the complainant chose not to show her body as a means of visual examination.

86It was noted that the complainant’s anus, rectum, labia majora and minora were unremarkable. Her bleeding was consistent with her menstruating.

87The sexual assault kit was then turned over to Detective Constable Lemire.

M.L.

88Complainant is 29 years old. She has been residing in the Kitchener area for the last 7 months. She has 2 jobs.

89Her youth and criminal record is filed as Exhibit #19. It is a lengthy record all of which is composed of breaches of Court orders and not attending Court save for one count of theft and one count of theft of credit card as a youth.

90She has no outstanding criminal charges.

91She states not being proud of her record. She believes that she has now become a better person.

92M.L. speaks of her long standing substance abuse issue which involved alcohol and illicit drugs. Her addiction started at age 14.

93She describes herself as recovering from these addictions. She last consumed in October 2015

94The alleged incident in this trial has played a role in why she has stopped. Historically, she attended for counselling and rehab. She is still getting counselling. She has created a new life for herself and she is happy.

95Her drug of choice was cocaine which she started to consume at age 15.

96She confirms that in October 2015 she was deep into the use of cocaine and alcohol.

97She describes K.D.B. as an acquaintance. She met him through her ex-boyfriend some 2 years ago during the summer of 2014. She wouldn’t often see him.

98M.L. identifies the accused`s residence through the photo Exhibits.

99She describes same type of relationship with T.L.

100She had never seen the sign shown on photo exhibit # 1-5 which states that this is not a shelter.

101She started to live there in mid-July 2015. She had nowhere else to live. She was struggling with her addictions. She asked him if she could stay there as she needed a place to stay. Nobody wanted her around including her family with whom she has since reconnected. It was a low point for her. She had lived at a variety of places.

102She describes him as still being an acquaintance when she moved in. She didn’t know him that well and felt uncomfortable.

103She couldn’t keep a job. She had worked at Tim Horton’s. Was in receipt of social assistance for a while. Then worked at a restaurant at the Cornwall mall known as Cedar’s.

104M.L. describes her condition during that time as follows:

• Using cocaine and alcohol
• Struggling with her addictions
• Her mental health wasn’t’ very good… she felt depressed and anxious
• Felt ok physically… she was 5’5” in height and 175 to 180 pounds
• She wasn’t taking prescribed medication

105Both the accused and T.L. were living there all the time.

106She explained that J.W. and his sister lived in the other apartment.

107She provides a description of the residence. There were stairs leading to the upper floor where her room, the bedroom used by the accused and T.L. and a bathroom were located.

108She paid $200 per month to live there.

109There were no locks on bedroom doors nor the washroom. There were no handles.

110There was a bungee cord on her bedroom door.

111She was familiar with K.D.B’s medication in the Tommy Hilfiger box located on the shelf in the kitchen. He had told her he was on medication but not the reason for same.

112She had never seen the firearm.

113She is shown photograph exhibits 1-16 and 1-19 which she identifies as showing her bedroom. Beer bottles which are shown were hers.

114She doesn’t recognize the bathing suit shown on the bed. It is not hers and doesn’t know who it belongs to.

115M.L. is next questioned on what is described as inappropriate comments and actions by K.D.B.

116She describes the following:

• Unwanted comments in reference to her body which made her feel uncomfortable
• T.L. was at times present when these comments were made; T.L. would laugh; her reaction was confusing for M.L.
• These comments were not seen as compliments; she felt it was an invasion of her privacy
• The comments were as follows:
  • That her breasts looked good
  • Her behind looked good in a pair of pants
  • He could see her bra through her shirt
  • Her breasts looked big that day
• She would respond by telling him that he was a pig…. She tried to ignore his comments
• She also reports that while she was taking showers K.D.B. would enter the bathroom, open the shower curtain and look at her… made comments about her shaving her privates… he thought this was funny but she didn’t.
• This happened on several occasions
• Finally, she states that he would slap her behind particularly when she was having a shower
• There were no other unwanted physical contacts

117M.L. then describes her version of the events of October 5th and 6th, 2015.

118She wasn’t working that day. She started drinking beer at around 10:00 a.m. She stopped drinking at 5:30-6:00 p.m. She can’t recall the amount but it was over 6 beers.

119She also consumed ½ gram of cocaine during the same time frame.

120She described the effects of alcohol and cocaine as 6 out 10.

121She took no other drugs.

122This is pretty well what she did that day. She was struggling with her addictions. She was bored. That`s what she chose to do.

123She describes herself as a seasoned drinker which would mitigate the effects of alcohol on her.

124Both the accused and T.L. were in the house.

125M.L. drank and snorted the cocaine in her bedroom and living room. The accused and T.L. would have seen her consume both the beer and cocaine.

126The complainant reported that her feelings changed at one point. She started to feel anxious and unhappy.

127She would have told K.D.B. how she felt as she needed to talk to someone. It was around 6 or 7 p.m.

128He would have offered her a pill. M.L. provided the following evidence in regards to this pill:

• He offered her a pill and said that it would help with her anxiety
• That the pill would really help her… would make her feel more relaxed
• That there would be no side effects such as making her feel “groggy”… she would have asked him if there would be any side effects
• He had told her in the past that he was taking medication for anxiety and his heart
• She re-affirms that she knew where he kept his pills in the Hilfiger box on the kitchen shelf
• As to why she asked about possible side effects, she responds that she didn’t want something bad to happen; it was something new
• She accepted the pill that he had volunteered to give her
• This discussion took place in the living room… T.L. wasn’t present
• She reports that he took the pill out of the box and gave it to her; she took the pill with a sip of beer
• She describes the pill and ultimately identifies the type of pill out of the 4 varieties which were filed as Exhibits in this trial… she pointed to Exhibit #13 by reason of the colour and shape; … 13 shows lorazepam; …she didn’t know the name of the pill

129Next, she described the events after she had taken the pill.

130She states having gone upstairs to relax and watch a movie she had purchased. She laid on her bed and felt very tired. Her limbs felt very heavy. She uses the words “severe heaviness” to describe how she felt. She had never felt like this before through the use of cocaine and alcohol. She could not move. She had never experienced such a feeling.

131Her evidence is that she was wearing a black and white checkered smurf pyjama bottom and a white tank top. She did not have a bra or panties. She was covered with a comforter having hockey symbols. There was a white bed sheet. Her hair was in a ponytail and bound by an elastic band.

132She does not recognize the garment shown on photograph 1-17 nor the items shown on photograph 1-19. She doesn’t know who these belong to and states that these were not present while she was there.

133The complainant describes having a total loss of memory at one point. She doesn’t know how long this blank occurred after she took the pill. She has no concept of time. She only recalls drinking her last beer at 6:00 p.m.

134Her next recollection is when she woke up with K.D.B. in bed next to her. She has no concept of how much time had elapsed leading to this point. She provides the following evidence of what transpired once she woke up:

• The bed is tucked against a wall; she was lying on her side facing away from the wall; her body was straight
• K.D.B. was behind her, next to the wall; he was lying on his back facing up; he was sleeping
• The bedroom door was shut; the lights were off; the television was still on; she guesses it was early morning around 8:00 a.m. based on the light coming through the window curtain.
• Her pyjama bottom was lowered to her ankles; her tank top was partially up so that her lower back and stomach were exposed; her breasts were covered; her hair was messy and the elastic band was not there anymore
• She states that K.D.B. had no clothing covering his upper body and his shorts which she described as being green and black and similar to a bathing suit were down to his ankles
• Both of their genitals were exposed with their clothing bundled up at their ankles
• She felt something sticky on her back which she identifies as semen; she notes that it was sticky, warm, felt soft liquid; she touched this substance with her hand, looked at it; it was clear and whitish
• The witness became emotional and requested a break when asked to describe how she felt; ultimately, she described feeling as follows:
  • Very scared
  • Very confused
  • Very violated
  • She concluded that some type of sexual activity had taken place without her consent
• She explained having awakened K.D.B. and confronted him by stating “ … what the fuck are you doing in my room…”; he would have responded having gotten in an argument with his girlfriend, being kicked out of his room and inviting himself in her room as he felt comfortable sleeping next to someone; he would have then stormed out of the room while pulling up his shorts; she is not sure what he did after
• She testifies wanting to get in the shower as soon as possible so as to remove the substance off her back; she knew she had semen on her back and wanted to get it off as fast as possible.
• She did not have any physical sensations in or around her mouth or rectum; her genital region felt a little more moist than usual… not as clean
• She describes taking a 10 minute shower during which she used body wash to wash all of her body parts; she applied soap and washed the area where the substance was located for 2 to 3 minutes; she felt confused, upset and ashamed; she then got dressed
• She heard the accused and T.L. leaving; she could hear them going down the stairs; she heard T.L. screaming and being vulgar; T.L. stated “Fuck her, it doesn’t matter … lets go”
• Finally, she left the home at 8:53 a.m. and went to a friend on York Street

135The complainant testified having contacted the police later on that day. She explained that she didn’t know what to do and felt shame. She had doubt in her mind and wasn’t sure if she would be believed. She eventually got the courage to call the police.

136She describes meeting constable Zeran and providing detective Van Den Oaterlaar with a video statement which she cut short as she didn’t feel the need to talk about it anymore.

137She also attended the hospital on 2 separate occasions where she met with nurses. She felt very uncomfortable, really tense and scared. She provided blood and urine samples. She didn’t want parts of the examination done as she felt uncomfortable. While she acknowledges having consumed alcohol while at her friend’s home prior to attending the hospital, she denies having consumed any drugs following the alleged incident and prior to her visits at the hospital.

138The following points are raised during the complainant’s cross-examination:

• Prior to residing with the accused, she had lived with her boyfriend, her sister and mother; she left because she had broken up with her boyfriend
• She doesn’t agree with the suggestion that she moved in with K.D.B. in September; it was during the summer and she was there for three and half months; she was never asked to leave by either the accused or T.L.
• She was not dating M.M. while residing there
• She describes her lifestyle at the time as transient; she did not sleep at the accused’s residence every night; she was a fairly heavy drug consumer
• She admits having consumed clonazepam prior to October 5th; it was never prescribed to her
• She wouldn’t consume drugs other than cocaine
• She knew K.D.B. had prescription medication in the box found by the police; she was not familiar with these pills; she denies having asked him for pills including OxyContin
• She has always struggled with anxiety and had seen a doctor for this; while she was on prescribed anxiety medication a long time ago, she was not on such medication at the relevant time
• She knew of K.D.B.’s legal problems and charges before she moved in
• She stayed at the house all day on October 5th; the accused and T.L. were also present that day; she states that they were lounging
• She is aware of Project Truth but is unaware if the victims received money
• She doesn’t know a Justin Lacelle; she doesn’t know all of the accused’s and T.L.’s friends
• When asked, she confirms having watched CSI on television and is aware of the significance for the police of gathering evidence; she would later explain why she had taken a shower; she didn’t feel comfortable with semen on her body
• She maintains having paid the accused $200 per month from public assistance and her work at Cedar’s restaurant
• She agrees that her criminal record discloses a pattern of non-conforming with Court orders; she doesn’t dispute the suggestion that this amounts to lies to Judges when she stated to them that she would comply
• She states that she had a good tolerance for alcohol; her consumption of alcohol on October 5th is consistent with how she would usually drink
• She denies having taken any of the accused’s medication to supplement her alcohol consumption
• It is not possible that the accused’s inappropriate comments were directed at T.L.
• She testifies having gone to her room between 6:00 p.m. and 7:00 p.m. on October 5th; she then got into her bed clothes; she didn’t go out that evening
• She knows K.D.B. has sleep apnea and his machine was not in her room at the time of the incident; she maintains that he was sleeping next to her
• She provided the following information in regards to her meetings with the nurses:
  • She met nurses on 2 separate occasions
  • She didn’t tell the nurses that she had consumed cocaine since she felt embarrassed
  • There were a number of swabs taken including a rectal swab
  • She may have told the police that she had bruises on her buttocks and thighs and that the nurses would have been able to observe the presence of bruises since her pants were down
  • She doesn’t recall refusing the taking of photographs of her body by the nurses
• The fact that she knows K.D.B. was facing charges of a sexual nature did not impact on her decision to move in his residence
• She is aware that K.D.B. and T.L. had spent time at the bakery of S.S and C.S.; she doesn’t agree that they had spent “a fair amount of time working at the bakery”; they were not there frequently
• She admits having taken medication from someone else
• She did not notice any scars on the accused while his pants were down
• While she had boyfriends at the accused`s home, none of them ever moved in

139In re-examination, she explains that she had taken clonazepam months before October 5th.

140She states that she knew K.D.B. kept cocaine in a safe in his room. He had told her this.

141OxyContin is not a drug she particularly consumed in the past.

142She explained that she moved in with the accused as she had nowhere else to go.

143She again denies having stolen the accused`s medication.

Vivienne Luk

144Witness Vivienne Luk is a forensic pharmacologist and toxicologist with the Centre of Forensic Sciences. Her qualifications are set out in Exhibit #2-3.

145Her ability to provide the Court with expert opinion was conceded by defence and confirmed through a brief voir dire.

146She confirms having analyzed the urine and blood samples taken by the ASAP nurses from the complainant. Her findings are set out in her report dated December 22, 2015 and filed as Exhibit #2-2.

147She notes that the complainant`s blood samples revealed the presence of 80mg of alcohol in 100 ml of blood. No drugs were detected in the blood sample.

148The urine sample disclosed 97mg of alcohol per 100ml of urine and the presence of lorazepam. No other drugs were detected in the complainant`s urine sample.

149The expert explains that depending on when the lorazepam was ingested, it is possible that its presence was eliminated from the blood but not the urine. She explains that lorazepam is eliminated from blood within 2 to 3 days. However, it can be detected in urine for up to 7 days. So that it is not surprizing that lorazepam consumed by the complainant at around 5-6 p.m. on October 5th would be detected in the urine sample but not in the blood sample.

150She also explains that it is unlikely that cocaine consumed on October 5th would be detected in the urine and blood samples taken from the complainant in this manner.

151The witness provides the following opinion in regards to the effects of the substances raised in this trial.

Alcohol

• She wouldn`t expect outward signs of intoxication with an experienced drinker having 80 mg of alcohol in 100ml of blood
• She wouldn`t expect loss of memory at such a level

Lorazepam

• this drug is usually prescribed for anxiety disorders such as panic attacks, phobias and fears
• the standard dose is .5mg and up to 6mg per day
• it is a central nervous system depressant which will:
  • cause drowsiness/confusion
  • impair memory
  • cause loss of muscle control
  • cause loss of consciousness at high level
  • the effects are specific to the individual and one expects more effects on a first time user
  • cause muscle weakness, slow directed movements, unsteadiness, loss of balance
  • reduces information going to the brain; there is no communication between brain and muscles
  • affects perception
  • the effects would be more profound if coupled with alcohol
  • there is an increased risk of sedation and unconsciousness if combined with alcohol and cocaine

152The expert provided the following evidence during cross-examination:

• The period of time from collection and testing has no impact because the samples are preserved in the collection tubes
• The effects of lorazepam are not offset by a stimulant such as coffee
• Drugs other than alcohol are not given a numerical value; tests only reveal presence or absence of drugs
• Clonazepam and lorazepam are from the benzodiazepine family; they have similar effect; it is possible to develop a “cross tolerance” as between different types of benzodiazepines;
• The effects of lorazepam will depend on the tolerance of the individual; it is possible that an infrequent user would become unconscious from the collection of alcohol, cocaine (in the withdrawal stage) and lorazepam in the system; gender does not impact on the effects; a very small person may have more effects than a very large person

J.W.

153On May 11th, 2017, the Court ruled that J.W`s voir dire evidence was admissible as potential after-the-fact conduct of the accused person.

154This witness explained that K.D.B. was his landlord while he resided at 494 Fifth Street West in Cornwall. He was living there with his sister. The accused was living at the back with T.L. and a girl named M. He describes her as a chunky girl, dark hair and wearing glasses. She was around 20 years old. She lived there for 2-3 months.

155He testified that on August 22nd, 2016, being the first day of this trial, he attended the courthouse wanting to speak to the Crown attorney and provide a statement of what he had seen at the accused`s home. He provided a statement to constable Zeran and was told that he would be contacted if needed.

156He was subsequently served with a subpoena for this trial.

157His evidence is that on August 25th, 2016, he was in his backyard with his dog in the early morning hours. He now resides at 496 Fifth Street West which is next to the accused`s home. He alleges that the accused slid opened a living room window, pointed his finger at him and stated that the was going to “blow his fucking brains out”.

158He states not having said anything to the accused. He went in his house and called the police who told him not to worry, they would get him in Court. An officer later came to his home.

159He goes on to explain how the accused and T.L. would call the police on him all the time and try to get him charged with thefts. There was bad blood between these individuals.

160The essence of the statement given by this witness to the police at the start of this trial on August 22th, 2016 is that he had attended the accused`s home one early morning for coffee as he usually did. He sat at the kitchen table and saw M. laying on the couch in the living room on her belly with her clothes to her ankles. She was wearing dark stretchy pants which were down to her ankles. She had a blouse on. He thought she was drunk and right out of it. She was snoring. He is 100% sure it was M.

161He states having asked the accused to put a blanket over her. His response was “… She is just a cumslut…”

162The witness states that he went to his place and locked the door.

163He indicates not remembering when he saw this but it was the same day he saw M. go to the hospital and had K.D.B. charged with sexual assault.

164In cross-examination, he denies having told the officer that he was at the Courthouse on the “Sage matter”. He states not knowing who Sage is.

165He also denies having had any contacts with M.L. and having been told by her that the matter was set for trial. He found out from the newspapers or his computer.

166He agrees that he had not provided a statement to the police prior to August 22nd, 2016. He explains that he didn’t know the Court date and a friend told him he could go see the Crown.

167He states that M. was alone on the couch and he didn’t see the accused touch her.

168He never got together and play cards with M.. In fact he didn’t like her that much.

K.D.B.

169The accused is 46 years of age. His criminal record was filed as Exhibit #22. He notes having spent 8 months of pre-trial custody most of which was at the Ottawa Carleton Detention Center. He has also been subjected to house arrest.

170He lives with T.L. with who he has been in a relationship for 5 to 6 years.

171He has a 25 year old son named J.

172K.D.B. explains that he has many medical concerns including 3 massive heart attacks. Exhibit #23 is a list of the medication taken by him. He also suffers from sleep apnea and must sleep with a machine. He states that he cannot sleep without this machine. He stops breathing without this machine. He wakes up without same and would suffocate without it.

173In October 2015, he was residing at the residence on Fifth Street in Cornwall with T.L. and the complainant M. He moved there 15 years ago.

174He notes that J.W. was his neighbour. They were pretty close.

175His evidence is that the complainant lived with them for 3 weeks. Her dad had asked him to let her live with them. She started living there on September 18th and left on October 4th or 5th.

176She was sleeping in his now deceased father’s bedroom. He had his own room with T.L. M.L. would sleep there on and off.

177On October 1st, M.L. had brought a guy named M.M. to live with her. He told him he had to leave.

178K.D.B. explains that he was home with T.L. the night of October 5th. He states that he usually goes to bed between 8 p.m. and 10 p.m. he guesses. He has a sleep apnea machine in his bedroom next to his bed. He usually gets up at 4-5 o’clock in the morning. T.L. goes to bed when he does and wakes up when he does.

179His evidence is that M.L. left the home at 4:30 p.m. with 2 friends on October 5th.

180He had driven to Bonneville to pick up M.M. from work. He believes he came back at 5:30p.m. M.L. was not there when he came back. He states that she had stolen his cell and computer lap top. He had another cell.

181He went to bed at around 10:00 p.m. M.M. was there drinking beer. He had a couple of beers with M.M.. M.M. was in the house when he went to bed. They both went to bed at the same time since M.M. had to work the following morning.

182M.L. never came back.

183He found out about the allegations when arrested by the police he believes on October 7th. He was with T.L. at home when the police came to arrest him.

184He then explains that there are often visitors around his home. M.M. was also living there. He states that M.L. knew he was charged for sexual offences. She would have stated wanting to go and knock the alleged victim’s “fucking teeth out”. Everybody knew he was charged as it was in the papers.

185His evidence is that M.M. was sleeping in same room used by M.L.

186He testifies not having seen M.L. the night of October 5th. She had left at 4:30 p.m. He didn’t see her prior to going to bed.

187M.M. was still there. He drove M.M. to work the following morning. He had to be there for 6:00 a.m.

188For his part, he was working at his ex-wife’s store which was opening that day at 7:00 a.m. He was there at 7:00 a.m. T.L. was with him. His Ex-wife S.S. and his daughter-in-law were also there. He states that there was a pretty good turnout.

189He is then questioned in regards to the pellet gun found by the police in a drawer at his home. He states that it was bought by his father at the TSC store. It was in a drawer with his deceased father’s belongings. His father had a firearm registration.

190The accused testifies that the complainant was “pissed” because he told her and M.M. to find their own place since they were doing drugs and drinking like “fish” She left that night and he hasn’t seen her since except in Court.M.M. had to be escorted away by the police who had been called by T.L. as he wouldn’t leave. This occurred 2 weeks after his arrest.

191He denies having threatened his neighbour J.W as alleged because he had provided a statement to the police on August 22nd, 2016 when this trial started.

192As already noted, K.D.B. describes being close to J.W.. They went fishing together, drank beer and had barbecues. He would come over every morning for early morning coffee. He would stay until 9, 10 or 11 and sometimes spent the entire day.

193He alleges that J.W. moved on November 1st, 2015 because T.L. wouldn’t have sexual relations with him. While he was in jail, J.W. would have stolen his truck and smashed it. This was reported to the police who wouldn’t do anything. He also alleges that J.W. stole tools from him.

194He states not having had any contacts with J.W. since his release from jail on April 27th, 2016.

195K.D.B. explains that he could not have opened a living room window since all of the windows on the first floor were locked with screws as protection because of crimes in the neighborhood. Furthermore, it was impossible to get closer than 4 to 5 feet of the windows because of tiles and furniture in front of same.

196He recalls an incident when the complainant was in the living room on the couch, half naked with Mike L. and another guy. There were blankets on the couch.

197He goes on to explain that he and T.L. were always together. He would bring her at his work. They were always together “24/7”. They would shower together. They were together at the bakery the night before until his curfew. He believes the bakery was opening at around 9:00 a.m. It was the grand opening. They were there as of 7:00 a.m. There were tons of sales.

198He alleges that the complainant had asked him a few times if she could take his medication specifically lorazepam. He states never having given her any.

199He denies having had sexual contacts with her and states that he “doesn’t work sexually”. This is a side effect of his medication.

200He also denies having made sexual comments to her.

201He again notes that by reason of his sleep apnea, he can’t sleep anywhere else in the house. He needs his machine to sleep.

202Finally, he mentions that he was sharing a cell with his 25 year old son J. while in custody at the Ottawa Carleton Detention Center.

203In cross-examination, the accused acknowledges being bound by a firearm prohibition. He states that he believed the firearm found by the police in his home in a drawer was a BB gun. It belonged to his father who passed away 7 years ago. He had no knowledge of this firearm as it was part of his father’s possessions.

204He also admits being bound by an undertaking with a condition to keep the peace and be of good behaviour.

205In relation to the cocaine seized by the police again in his home, he states having plead guilty. He doesn’t remember where it was kept in the house. It was his cocaine. The officer told him the cocaine was in a lock box. He had keys for this box. T.L. had access to the cocaine.

206He explains that he has been taking lorazepam for 20 years and that it has no effect on him other than calm him down. It never knocked him out. He knows lorazepam is not to be mixed with alcohol as it says so on the bottle. He also states knowing that its effect increases when coupled with alcohol and could bring unconsciousness. Which explains why he never mixed both.

207K.D.B. confirms having put up the sign shown on photograph 1-5 stating that his home was not a shelter. He did so because people would crash in his house. These people would ask him to sleep over and they would drink. He would ask them to leave. He is not sure when he put up this sign. It may be the day after the complainant left. It is possible it was placed before she moved in. It was put up for people who used drugs and crashed his home.

208He testifies that it became obvious that the complainant was using drugs. He told her she had to leave. She didn’t leave after he told her. He doesn’t know if she took all of her stuff from the room. She left on that day at 4:30 p.m. in a SUV vehicle with 2 individuals. It was apparent that she was a drug addict soon after she moved in. She placed drugs on the table and sniffed it. He told her to leave 4-5 days later. It was apparent to him that she had a drug and alcohol problem.

209His assumption was that she would pay to reside in his home. She was working at Tim Horton’s and Cedar’s. Her father told him he wouldn’t pay for her.

210He is then questioned as to why he would leave his drugs readily available to her knowing that she had such a drug problem. Reference is made to the fact that he left the keys to the lock box with cocaine readily accessible and his prescription medication in a shoe box in the kitchen. His response was that there was understanding that she knew these were his drugs and she wouldn’t touch it.

211He testifies not having seen the complainant at 4:30 p.m. when she left with 2 individuals in a SUV. He was called by J.W. and his sister T.W. and told him about this.

212He identifies the items in the room used by the complainant as belonging to M.M.. None of it belonged to the complainant.

213K.D.B. provides the following evidence in regards to J.W.:

• They were close at one time
• J.W. wanted to act as his surety but then robbed him; he hasn’t spoken to him since he visited him while in custody at the Ottawa Carleton Detention Center
• He admits that the incident described by J.W. did take place but there were 2 males with the complainant on the couch; Justin and Mike were there with her; she was not naked from the waist down; her pants were down but she had shorts on; she was under a blanket with Mike; T.L. was with them in the kitchen; there were no comments made
• He recalls seeing J.W. at the Courthouse on August 22nd, 2016; he wasn’t surprised to see him since he had matters in Small Claims Court; he was aware on August 25th, 2016 that he had given a statement against him and was served with a subpoena; he denies trying to dissuade or intimidate him
• He admits knowing that J.W. lived at 496 Fifth Street West; when asked why he attended 494 Fifth Street West the morning of August 25th, knowing that J.W.would be close by, he explains that he needed to change clothing
• He alleges that while he was in jail, J.W. had stolen his truck and smashed it, tried to have sex with his wife and stole his motor boat
• He states that J.W. would sleep up to 10:00 a.m. in the morning; he is reminded of his earlier evidence about J.W. attending his home for coffee early every morning; his response was that he meant “sometimes, every time”

214The accused testifies that while he plead guilty in regards to the cocaine, he did so because he was told by the police that T.L. would be charged if he didn’t take the blame. He states that Constable Lemire told him while in the cell where there is no video camera that he had to admit possession of the cocaine and if not T.L. would be charged. In fact, he indicates that the cocaine belonged to the complainant and he had told her that he would not give her cocaine back until she returned his cell and computer. He later indicates that he never told the complainant where the cocaine was since she knew. It was her cocaine which she kept in a lock box in her room.

215He states “the cocaine was mine because it belonged to M.L.”. She had placed her cocaine in his lock box. He explains that she stole his cell and computer when she came to get her belongings. J.W. and his sister T.W. were there and called him. He wouldn’t give her the cocaine because she stole his cell and computer. His belief is that this is why “this is happening” meaning being charged with the present offences.

216Reference is made to K.D.B.’s statement to the police on October 8th, 2015. A video of this interview was filed as Exhibit #24. He is specifically challenged on why he would have told the officer that he was “being” charged because someone had stolen his drugs “in the context of not having been told that the complainant had ingested lorazepam and that the nature of the drug was identified some time later. He responds that he was charged with sexual assault and that the alleged victim had been given a drug. He reasoned that if he didn’t give her the drug then she stole it from him.

217He goes on to explain that she hounded him for drugs all the time but he never gave her any. His pills were counted.

218The question of the non-disclosure of his alibi was also the subject of cross-examination. He maintains that he wasn’t present and never told the police. This was raised for the first time in this trial. Nor did he provide the names of the 5 witnesses referred to in his October 8th, 2015 statement.

219His evidence as to his whereabouts on October 5th, 2015 is as follows:

• Between 5:00 p.m. to 6:00 p.m. he was at Woodland Tree Services in Bonville picking up M.M. form work
• He returned home with M.M. and T.L. at around 10 to 6 p.m. and dropped off M.M.
• The complainant was not home
• He and T.L. left and went to S.S’s bakery where they stayed up to 10 p.m. or 11 p.m.
• The complainant was not home when they returned
• M.M. was still there; he states that maybe he had a beer with M.M.
• He was never in the complainant’s bed nor had sexual contacts with her since he wasn’t there

220He denies having said anything inappropriate to the complainant and having walked in the shower. The only time she called him a pig is when was he was eating.

221While he states that he is unable to maintain an erection, he explains that he can with difficulty. He agrees that he is able to ejaculate.

222The question of his whereabouts on October 5th, 2015 is revisited by Crown Counsel. He provides the following details:

• T.L. did not go with him to get M.M. that night; he was alone
• He told her to stay there and make sure to get his cell and computer back from M.

S.S.

223S.S. is the accused`s ex-common law spouse. Her criminal record was filed as Exhibit #25.

224She testified that she opened a bakery. She believes the opening was on October 5th, 2015. The night prior to the opening, she together with her husband, K.D.B. and T.L. worked at the bakery shop preparing for the opening. She described painting, electricity and shelves being built.

225K.D.B. and T.L. stayed there up to around 10:30 p.m.-11:00 p.m. The next morning her husband arrived at 6:00 a.m. while K.D.B. and T.L. arrived at 6:45 a.m.

226She notes that while living with K.D.B., he couldn’t sleep without his machine.

227In cross-examination, she explains that in 1992, she had used another person’s mother’s allowance cheque and was accordingly convicted of fraud. The most recent 2016 fraud conviction relate to her depositing a cheque in an ATM and that here were no funds for this cheque.

228She indicates having found out that she would testify in this trial on the previous day of her testimony. She states having looked at her paperwork and documents to identify the date the bakery opened. She is certain because she looked at these documents. She identifies October 4th as the night before.

229She explained that here was lots of last minute preparation. The accused and T.L. were there up to 10:30 p.m. on October 4th and there as of 6:45 a.m. on the 5th.

230Finally, she states that the last time she had shared a bed with K.D.B. was near the end of 2011. She doesn’t know of his present sleeping habits but states knowing that he stops breathing without his machine.

J.T.

231J.T. is the accused’s son who was born on September 14th, 1992. He testifies having been his father’s cell mate for a period of 6 months while detained at the Ottawa Carleton Detention Center. His criminal record was filed as Exhibit #26.

232He notes that his father would snore while in the cell. He did not have a machine. He slept but it was like he wasn’t sleeping.

233In cross-examination, he is questioned on some of the entries on his criminal record.

234His evidence is that he spent 6 months with his father in a cell and that his father did not sleep for the first 2-3 months. He then indicates that he slept some but not well. He agrees with the suggestion that his father had to be asleep at one point in order to wake up.

Detective Constable Matthew Lemire

235The officer was recalled as a witness by defence on consent of the Crown.

236He is questioned in regards to when J.W. attended Court and asked to speak to the officer.

237J.W. told him that “he was here for that Sage girl”

238The officer explained that Sage was the name of the complainant in the other sexual assault charge against K.D.B.

239Constable Lemire is then questioned by Crown counsel in regards to the October 8th, 2015 video statement provided by the accused. The officer provides the following information:

• K.D.B. was in a cell at the police station prior to the interview; he escorted him to the interview room; he had no conversation with him while in the cell; he never told him to plead guilty to something
• K.D.B. told him during the video interview that he had 5 witnesses; the officer invited him to provide the names of these witnesses; the accused never provided these names nor was he provided with these names by anybody else.
• He first heard the names of these individuals during the trial; he couldn’t investigate because he was never given the names
• He would have investigated had he been given the names
• He never told the accused that the complainant had been given one of his pills; never told him anything about the pill being a long white pill; he himself found out that the pill was lorazepam on October 14th, 2015 when he received the medical notes from the nurses; it was then confirmed by CFS.
• T.L. was charged in relation to the cocaine; the charges were ultimately withdrawn against her but this was not at his request; he had no say in the withdrawal of the charge against her.

Position of the parties

Defence

240Counsel for Mr. K.D.B. argues that the Crown has not proven guilt beyond a reasonable doubt.

241The submission is that the complainant is not a credible witness for the following reasons:

• She had a serious habit of getting intoxicated
• The fact she went to live at the accused’s residence knowing that he was charged with sexual offences against another complainant
• Her intent was to set-up K.D.B. so that he would face more charges
• She doesn’t acknowledge being in a relationship with M.M.
• While knowing the significance of D.N.A evidence through television shows such as CSI, she chose to wash away the evidence; she took active steps to destroy evidence
• There was no DNA evidence and substance found to support her allegations; the expectation is that same would have been found on items seized by the police such as bed sheets
• Her version that K.D.B. was sleeping next to her is contradicted by the evidence that he requires a machine to sleep because of his sleep apnea; this is supported by the other defense witnesses
• The suggestion that she had bruises is not supported by the evidence of the ASAP nurses
• She had used lorazepam in the past so that she would have known its effect
• There is no evidence to support her version

242J.W. is also said not to be a credible witness. The Court should reject the Crown’s suggestion that the accused threatened him as a means of dissuading him from testifying. Defense counsel notes the following:

• He is contradicted by Constable Lemire on whether he had referred to the complainant as Sage when he attended the Courthouse on the first day of trial
• He had offered to act as a surety for K.D.B.
• Since T.L. was residing with K.D.B. it is unlikely that the complainant would have been half naked on the couch as suggested by J.W.
• His demeanor in the witness box is not consistent with his suggestion that he was intimidated by the accused

243In regards to defence evidence, it is noted that K.D.B. testified that the complainant was not present in his home on the evening in question.

244The point is made that the accused is not relying on an alibi defence. The evidence of him being at the bakery at the relevant time serves to establish that he had other events occupying his life at the relevant time.

245While it is acknowledged that the dates provided by defence witness S.S. and the accused do not match, this should not be seen as a concern because the defence is not an alibi. It simply shows that the witnesses are mistaking as to dates. Nothing should turn on this.

246K.D.B. evidence that he cannot sleep without a machine is crucial in this case. He is supported by other defence witnesses. This amounts to confirmatory evidence on a significant point.

247As for the drawing of negative inferences, counsel submits that the complainant was asked whether she had left the residence that night. Furthermore, the circumstances are such that the Court should exercise its discretion and not draw inferences. In fact, even if the complainant had been asked the questions raised by the Crown, the reality is that she wouldn`t have changed her story. As such, the rule in Browne v. Dunn was never breached.

Crown

248The Crown submits that based on a W.D. analysis, the evidence establishes the accused`s guilt beyond a reasonable doubt on both the sexual assault and the count relating to the stupefying drug provided to the complainant.

249It is also argued that the facts for those 2 offences should form the factual basis for the breach of failing to keep the peace and being of good behaviour contrary to section 145.

250Counsel’s submission is that K.D.B. is not a reliable and believable witness. His evidence does not raise a reasonable doubt.

251Specifically, the Court is asked to draw negative inferences against the accused and that such inferences should be drawn on 3 distinct basis:

• Defence’s failure to call corroborating witnesses namely T.L., M.M. and J.W.; those witnesses were referred to by the accused as capable of supporting his evidence and yet they were not called; as such an adverse inference should be drawn against his credibility
• The essence of his defence is an alibi which was never disclosed to the authorities prior to trial; his evidence is that he wasn`t present when this happened; he presented his ex-wife S.S. as a witness in support of this defence; the lack of timely disclosure allows for the drawing of a negative inference
• Defence has breached the rule in Browne v. Dunn on a number of significant points including the following:
  • The suggestion that the complainant had stolen his cell phone and computer
  • His holding on to the complainant’s cocaine
  • The question of her involvement with M.M. at the relevant time

252While the Court should be cautious in weighing J.W.`s evidence, consideration should be given to this after-the-fact conduct. It is circumstantial evidence consistent with a consciousness of guilt.

253K.D.B. is said to have provided inconsistent evidence such as:

• Ownership of the cocaine seized by the police
• Whether or not he can function sexually
• The issue of his inability to sleep without a machine
• The suggestion that he cannot use his hands
• His suggestion on the first day of his testimony was that the complainant wasn’t present; on the second day his version was that he wasn`t present
• J.W. having coffee with him every early morning later followed by a statement that this individual slept in late every morning

254The suggestion is that K.D.B. `s actions are not consistent with his beliefs. Examples include:

• Placing a sign on his home stating that it wasn’t a shelter and yet allowing individuals such as the complainant to live there
• Leaving his medication in plain view knowing that the complainant is a serious drug addict
• Not wanting M.M. to continue residing with him yet he drives him to work back and forth

255Crown Counsel submits that the complainant is a credible and reliable witness. Reference is made to the following considerations:

• The manner in which she testified
• There are no major contradictions
• She correctly identified the pill amongst others
• The expert evidence is supportive of the way she describes feeling
• The same type of pill was found in her system
• She is corroborated in ways she couldn`t have known by the expert witness and presence of the medication in her system
• Nothing should turn on the fact that no DNA was found on items such as the blankets
• It is not unreasonable for her to have wanted to remove semen off her body; victims of sexual violence react differently
• There is no reason why she would want to set up the accused as suggested by defence counsel
• The fact that she went through an invasive sexual assault examination is recognized by the Ontario Court of Appeal as supporting credibility

256The end result is that convictions should follow since the complainant is believable and reliable. The presence of semen and the circumstances establishes sexual contact without her consent as she was unable to do so.

The law

257In deciding this matter, the Court will be guided by the following relevant principles:

Essential elements of offences

258The essential elements of sexual assault and administration of a stupefying drug can be briefly summarized as follows:

Sexual Assault

1. The accused intentionally applied force to the complainant.
2. The complainant did not or could not consent; consent means the voluntary agreement of the complainant to engage in the sexual activity; there is no consent when the complainant expresses by words or conduct, a lack of agreement to engage in the activity.
3. The accused person knew there was no consent or was reckless and/or willfully blind on whether there was consent.
4. A belief in consent is also vitiated if the accused person did not take reasonable steps, in the circumstances known at the time, to ascertain that the complainant was consenting.
5. The contact took place in circumstances of a sexual nature.

Administer a stupefying drug

1. The accused furnishes, gives or supplies the complainant with a stupefying drug.
2. Stupefying is understood to mean a state of little or no sensitivity to surroundings; confusion; inability to think clearly.
3. The accused’s intent is for the drug to act as a means to commit a separate indictable offence.

Fundamental principles of our Criminal Law

1. The presumption of innocence provides that K.D.B. is presumed innocent and so remains if and until the Crown proves his guilt.
2. The burden of proving guilt rests solely on the prosecution. There is no burden of proof placed on an accused person. K.D.B. does not have to prove anything.
3. The Crown’s burden is to prove each of the essential elements of the offences already noted beyond a reasonable doubt.
4. I have instructed myself in regards to the concept of reasonable doubt in accordance with the Supreme Court of Canada’s decision in R. v. Lifchus, [1997] 3 S.C.R. 320, namely: i) It is fundamental to the presumption of innocence; ii) It is not a doubt which is far-fetched or frivolous; iii) It is not based on sympathy or prejudice; it is based on reason and common sense; it is a doubt that logically arises from the evidence or the lack of evidence; iv) It is not enough for the Court to believe that an accused is likely or probably guilty; v) However, the Crown is not required to prove guilt on the standard of absolute certainty; vi) The Courts’ task is to consider all of the evidence and decide whether it is sure that the accused committed the offence; an acquittal must follow if at the end, based on all of the evidence, or the lack of evidence, it is not sure; vii) Where reliability and credibility are the ultimate issues, the Court is reminded that the rule of reasonable doubt applies to the assessment of reliability and credibility;
5. Since K.D.B. has testified in this trial and the outcome revolves around an assessment and appreciation of the credibility and reliability of the witnesses, the proper analytical framework is found in R. V. W.D., [1991] 1 S.C.R. 742:
   1. Firstly, if the Court believes the accused, an acquittal must follow
   2. Secondly, if the accused is not believed but his evidence raises a reasonable doubt, then he must be found not guilty
   3. Lastly, even if the Court is not left with a reasonable doubt with the accused’s evidence, the question for the Court becomes whether based on the evidence that is accepted, it is convinced beyond a reasonable doubt by this evidence that the accused is guilty

Assessment of reliability and credibility

259In assessing the evidence of the witnesses, the Court must carefully and with an open mind consider all of the evidence. It must decide how much or little to believe and rely upon the testimonies.

260The Court may believe some, none or all of a witness’s evidence.

261This assessment is an exercise in common sense. There is no magic formula, no crystal ball, no scientific formula to assist the Court.

262The Court is alive to the important distinctions between the concepts of reliability and credibility. Credibility relates to a witness’ sincerity and belief that he or she is speaking the truth. Reliability relates to accuracy. It is possible for a credible witness not to be reliable.

263In properly assessing the witnesses in this trial, the Court will consider all of the circumstances including the following:

• The witness’s ability to observe
• The ability to recall the relevant events
• How the witness presents in the witness box; this measure does not mean whether the witness appears to tell the truth; it is not based on an “appearance of sincerity” as looks can be deceiving; what it does mean is that having regard to the particulars of the witness such as age, sophistication and limits, it is proper to consider things such as:
  • Whether the witness was argumentative
  • Whether he or she was responsive to the question
  • Whether the witness was evasive
  • The presence of hesitation in answering
  • The showing of appropriate emotions
• Whether the evidence finds support in extrinsic evidence such as other witnesses, physical evidence or the circumstances
• Whether, to the contrary, the version is contradicted by such extrinsic evidence
• The ability to provide a detailed account of the relevant event; details which are significant
• The presence of an interest in the outcome, a motive, any bias or partiality; the Court is mindful that the question of motive is to be addressed with caution; I am guided by the instructions of the Ontario Court of Appeal in R.v. Batte, [2000] O.J. no 2184:
  • There is no burden on an accused to demonstrate that a complainant has a motive to fabricate
  • The absence of a demonstrated motive to fabricate doesn’t necessarily mean that there is no motive
  • Nor does the absence of a demonstrated motive to fabricate establishes that the witness is telling the truth
  • The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility
• Whether the witness’s version is internally consistent being mindful that some details may be more significant than others
• Whether the witness’s version is plausible when looked at through the lens of common sense, life experience, logic and/or reason
• Whether the version is unreasonable and/or improbable when considered against the backdrop of facts which are not in dispute.
• Whether the witness has a criminal record for crimes involving dishonesty

Distinct legal issues raised in this trial

Alibi

1. “Alibi” means elsewhere. It is an assertion that when the alleged unlawful conduct took place the person charged with it was elsewhere, and thus it was impossible for him or her to have committed the offence
   • R.v. Rawn [2015] O.J. no 2875
2. The disclosure of an alibi defence must meet two requirements:
   • It should be given in sufficient time to permit the authorities to investigate
   • It should be given with sufficient particularity to enable the authorities to meaningfully investigate
   • R.v. Cleghorn, [1995] 3 S.C.R. 175
3. The failure to provide proper disclosure does not vitiate the defence but it may result in a lessening of the weight that the trier of fact will accord it. An adverse inference may be drawn in weighing the alibi evidence.
   • R. v. Cleghorn op. cit.
   • R. v. Vickerson, [2005] O.J. no 2798

Failure by Defence to call witnesses

264The principles governing the failure by defence to call witnesses are articulated by the Ontario Court of Appeal in R. v. N.L.P., 2013 ONCA 773, [2013] O.J. no 5878 and can be summarized as follows:

1. The defence is ordinarily under no obligation to call a witness.
2. An important exception is where a defence is raised on which the burden of proof is on the defence such as in an alibi defence.
3. It can also arise when an accused person raised the corroborative significance of a witness to the defence in his or her testimony.
4. The failure to call a witness by defence should only be used with great caution. Our system proceeds on the basis that counsel conducts the case and is not called upon or permitted to explain the conduct of a case. There are many reasons why counsel may choose not to call a witness.
5. Such failure cannot, in any event, be used as positive evidence of guilt. An adverse inference can be used to undermine the defence evidence to which it relates. The Court may infer that the missing evidence would be unfavorable to the defence.

Rule in Browne v. Dunn

265As explained by the Ontario Court of Appeal in R. v. Quansah, 2015 ONCA 237, [2015] O.J. no 1774, the rule in Browne v. Dunn is premised on the notion that fairness requires a party, intending to impeach a witness called by an opposite party to give this witness an opportunity while in the witness box, to provide any explanation the witness may have for the contradictory evidence.

266Failure to provide this opportunity tends to support an inference that the opposing party accepts the witness’s evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later.

267Being a rule based on fairness it is said not to be a “fixed rule”. Its application lies within the discretion of the Court and depends on the circumstances of each case.

268The rule does not require that every scrap of evidence on which a party intends to contradict the witness be put in cross-examination. As stated by the Court of Appeal at paragraph 81:

“ … The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted”

269The effect of the rule will vary in accordance with the subject matter not touched in cross-examination. A subject which is of little significance in the case and the resolution of critical issues will likely have little bearing on an accused’s credibility. However, the absence of cross-examination on a central feature is likely to “have a more telling effect on an accused’s credibility.”

270Also, the rule is not violated where it is clear, in all the circumstance, “that the cross-examiner intends to impeach the witness’s story.

271Finally as explained by the Ontario Court of Appeal in R. v. Quansah, at paragraph 121. the failure to comply with this rule:

“… has relevance for the credibility of the witness who was not confronted with the contradictory evidence, as well as the credibility of the witness who gave the contradictory evidence.”

After-the-fact conduct

272The actions of an accused person following the commission of an offence can provide circumstantial evidence of culpability for such crime.

273As explained by Justice Weiler in R. v. Peavoy, [1997] O.J. no 2788, at paragraph 26:

“Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.”

274Evidence of interference with a witness may be considered by the Court circumstantial after-the-fact conduct consistent with guilt.

• R. v. Tran, 2001 NSCA 2, [2001] N.S.J. no 2

275It may also be considered by the Court on the issue of an accused person’s credibility.

• R.v. Bulatei [2012] N.W.T.J. no 29

Discussion

276In accordance with the W.D. analytical framework, the first question for the Court is whether the accused is believed. If not, whether his evidence raises a reasonable doubt.

277K.D.B’s evidence raises a number of significant concerns for the Court. The cumulative effect of these makes it such that he is found not to be a credible and reliable witness. He is not believed. Nor does his evidence raise a reasonable doubt in the Court’s mind.

278Generally, his evidence is found to be unreasonable and improbable. There are significant internal and external inconsistencies. It is also marked by exaggerations on material points.

279The Court will now speak to specifics in support of its findings in regards to the credibility and reliability of the accused’s evidence.

280While the subject matter of the cocaine may appear somewhat collateral at first blush, it is raised by the accused as the motive behind the complainant’s false allegations against him. It is said that she did so as a response to the accused’s refusal to return her cocaine since she had stolen his cell phone and lap top computer. Therefore, the accused’s evidence provides significance to the subject matter of the cocaine as it is presented as the complainant’s motivation in making false allegations.

281The Court finds that there are a number of credibility and reliability concerns stemming from the cocaine as a subject matter.

282It is found to be a matter of substance on which the complainant was not cross-examined. She was not given an opportunity to respond to the suggestion that the cocaine was hers and that the accused’s refusal to return same to her was the prime motivation in contacting the police and making false allegations. Nor was she confronted with the suggestion that she had stolen the accused’s cell phone and laptop which is also central to the accused’s version of events. Therefore, the Court is exercising its discretion and finds that the failure to confront the complainant with this evidence impacts on the accused’s credibility per the principles set out in Browne v. Dunn, already discussed.

283K.D.B.’s initial sworn evidence in cross-examination was that the cocaine belonged to him. He changed his evidence once he was confronted with the October 8th, 2015 statement given to the police wherein he states that the cocaine was the complainant’s. This contradiction is an internal inconsistency on a significant point. His initial sworn evidence also serves to defeat the essence of the alleged motivation for the making of the false allegations.

284Defence counsel conceded in his submissions that Detective Constable Lemire was a credible witness. The officer’s evidence was that he never told K.D.B. to take ownership of the drug or else T.L. would be charged with the cocaine, as testified to by the accused. Therefore K.D.B. is contradicted by the extrinsic evidence of the said officer who is accepted as being credible.

285The fact that K.D.B. plead guilty to the possession of the cocaine for the purpose of trafficking and now states that it wasn’t his drugs, impacts on his credibility. As stated by the Ontario Court of Appeal in R. v. W.B.C., [2000] O.J. no 397 at paragraph 51:

“ 51… A plea of guilt carries an admission that the accused so pleading committed the crime charged and a consent being entered without any trial”

286The suggestion that he plead guilty for cocaine which is said to belong to the complainant is an unreasonable propostion. Detective Lemire, whose credibility is conceded by defence, contradicts the accused’s explanation that he plead guilty because he was told to do so by this officer. There is no reasonable explanation why he would have plead guilty to the cocaine other than it was his drugs.

287Furthermore, the suggestion that he plead guilty to something he was not guilty of is, in and of itself, troubling. In the end, the accused is saying that he misled the Court by admitting guilt to something that he wasn’t guilty of.

288Finally, his evidence that the officer had told him where the cocaine was located in his home because he couldn’t recall is troublesome in light of his evidence that he removed the lock box from the complainant’s room and placed same in his own bedroom because she had stolen his cell phone and computer.

289The subject matter of the alibi raises credibility and reliability concerns.

290While the Court is mindful of defence counsel’s submission that the accused is not relying on an alibi defence but simply that “he had other matters occupying his life at the time”, in the end, K.D.B’s evidence was framed as an alibi. He testifies that he was not present at his home during the relevant times, namely when the pill was provided in the evening of October 5th and the morning of October 6th at approximately 8:00 a.m. when he is said to be lying next to the complainant in her bed. His ex-wife S.S. was called as a defence witness in support of this proposition.

291Whether stated as an “alibi” or “having other matters occupying his life” in the end, K.D.B. told the Court that he was elsewhere when the alleged offences occurred in his home. He was at S.S.‘s bakery helping out for the opening.

292This evidence impacts on the accused’s credibility and reliability

293He is contradicted by his own witness, S.S., as to when he was at the bakery. This is seen as more than witnesses being confused on dates. The contradictions are linked to specific evens. S.S. testified that she reviewed her records and confirms that the opening of her bakery was on October 5th, 2015. This evidence makes it such that K.D.B could not have been at the bakery when the complainant states that he was next to her in a bed on October 6th, 2015, being the date on which the alleged incident was reported to the police. Therefore, the accused is contradicted by his own extrinsic evidence on a significant point.

294The non-disclosure of the alibi defence prior to the accused`s testimony at trial allows for the drawing of a negative inference. Little weight is given to his evidence that he was elsewhere at the relevant time. This finding is reinforced by the above noted contradiction with S.S.

295It is further weakened by the fact that witnesses who could have corroborated the accuseds version that he was elsewhere were not called at trial. Such potential witnesses include T.L., S.Ds partner, C and M.M.

296The Court also noted internal and external contradictions in relation to the time when the accused would have left the bakery the evening prior to the opening. S.S. testified that he left at around 11:00 p.m. At one point K.D.B. states that he drank beer with M.M. at 10:00 p.m. on that evening. At another point, he states that he left the bakery at 11:00 p.m.

297The Court also noted significant contradictions as to his whereabouts on October 5th, 2015:

• He clearly contradicted himself on whether T.L. was with him to pick up M.M. in Bonville; he initially stated she was and then later stated he had told her to stay home to get his cell and computer from M.L.
• His initial evidence in chief was that he was home with T.L. the night of October 5th, 2015; he later stated that he had gone to the bakery

298The accused`s testimony that he and T.L. were always together weighed in the Court’s analysis. His evidence is that they are always together… she goes to bed when he does…she gets up when he does…they are together 24/7… they always shower together…she goes to work with him. This evidence raises a number of concerns.

299The result of such evidence is to provide T.L. with significant corroborative value. How could he have sexually assaulted the complainant if T.L. is always with him? Yet, she is not called as a witness and there is no explanation why this wasn’t done. The record shows that she was outside the Court room during the accused’s cross-examination. If she is in fact always with K.D.B, then she could have corroborated a myriad of points raised by him in support of his denial of having committed these offences, including:

• Not being with complainant in her bed
• Not making inappropriate comments to the complainant
• Not entering the bathroom while the complainant was showering
• The complainant not being at the home after leaving with 2 individuals in a SUV
• M.M. sharing bedroom with the complainant

300The Court is of the view that the failure to call T.L. as a witness allows for the drawing of a negative inference weighing against the accused’s credibility. She is presented as having significant corroborative value for the defence. The inference is that her evidence would not have been favourable to the accused.

301The evidence is also seen by the Court as indicative of exaggeration. The proposition that he is always with T.L. is improbable and unreasonable. It defies common sense and life experience.

302It also reveals an internal contradiction. In fact, he testified at one point that he had gone alone to get M.M. at work in Bonneville while T.L. stayed home on October 5th, 2015. He had told her to stay home.

303The reason provided by the accused for telling T.L. to stay home while he went to get M.M. is also problematic. The accused’s evidence is that M.L. stole his cell and computer when she attended to get her belongings which was when she was accompanied by 2 individuals and left in a SUV. If this is true, the theft would not have occurred prior to leaving for Bonville. Why then would he have told T.L. to stay home to get a cell and computer which had not yet been stolen according to his version

304The failure to call M.M. as a witness also bears on the weight to be given to the accused’s evidence. He is presented as having corroborative value to the accused’s version, namely:

• M.M. shared the complainant’s bedroom
• They drank beer together at around 10:00 p.m. on the evening of October 5th, 2015
• M.M. slept in the bedroom on October 5th, 2015
• The complainant was not present
• M.M. was driven to work in Bonville at 6:00 a.m. the following morning being October 6th, 2015; this would clearly contradict the complainant’s version that K.D.B. was lying next to her in bed at around 8:00 a.m.

305The inference drawn by the Court is that M.M.’s evidence would not have been favorable to the defence’s version.

306The Court also notes that the complainant was never confronted with the suggestion that M.M. shared her bedroom at the relevant time. This omission further weakens the accused’s evidence.

307Defence places much weight on K.D.B’s sleep apnea disorder. The argument is that he can’t sleep without his machine and therefore could not have been sleeping next to the complainant without his machine.

308There is no question that the evidence establishes that K.D.B. has sleep apnea and this impacts on his ability to sleep. However, the evidence does not support the proposition that he cannot fall asleep without a machine and that he would suffocate and die without same.

309In fact, the evidence that he spent 6 months with his son in a cell at the Ottawa Carleton Detention Center without a machine would suggest otherwise. Common sense and life experience are such that it is very unlikely that he would have gone without sleep for a period of 6 months in a cell.

310Furthermore, the complainant’s evidence is that he was asleep when she woke up. There is no indication of how long he has been sleeping. This is not inconsistent with the evidence that he can fall asleep but then wakes up soon thereafter as testified to by himself and his son J.

311The Court finds that the sleep apnea issue is overstated as a means to shield himself from the commission of the sexual assault. It is found to be an indication of exaggeration.

312The following are other examples of overstatements and/or exaggerations:

• His inability to function sexually which evolves during cross-examination to being able to function but with assistance and difficulty; he admits being able to ejaculate
• The limited use of his hands followed by an admission that he is capable of removing clothing; furthermore, his evidence that he assisted in the opening of the bakery by building shelves does not support his initial proposition

313It is telling that a number of K.D.B.’s actions are not consistent with his stated beliefs.

• Leaving his medication in a shoe box in the kitchen pantry readily available to the complainant is at odds with:
  • His knowledge that she is a severe drug addict
  • She would have repeatedly asked for his medication
  • To his knowledge she would have stolen from her father
  • His explanation for doing so is that “there was a mutual understanding” This is not a reasonable and logical explanation in the circumstances.
• His dealings with M.M. are not in keeping with his stated position that he wanted him to leave his home:
  • He drove him back and forth from his home to his work in Bonville
  • He would let him use the bedroom in the absence of the complainant
  • He drank beer with him in his home at 10:00 p.m. on October 5th, 2015

314The end result is that the accused is not believed by the Court, nor does his evidence raise a reasonable doubt.

315The next step in the analysis is whether, based on the evidence that is accepted, the Court is convinced beyond a reasonable doubt that the accused is guilty.

316Defence counsel does not challenge the credibility and reliability of the following witnesses:

• Detective Constable Mathew Lemire
• ASAP nurses Loree Lalonde and Stacey Chisholm
• Forensic toxicologist Vivienne Luk

317The Court agrees and their evidence is accepted as proven facts.

318The evidence of witness J.W. which was tendered by the Crown as after-the-fact conduct is seen as problematic by the Court.

319This individual is found not to be credible and reliable by the Court. This finding is based on the following considerations:

• He presents as argumentative and unresponsive
• There is an admitted history of animosity and bad blood with the accused person
• The fact that the tells the officer when he attended the Courthouse that he had evidence in relation to a girl named “Sage”
• The fact that he denies having told this to the officer but then is contradicted by the officer
• The fact that he takes steps to speak to the authorities on the first day that the matter is set for trial
• The fact that he claims to report reporting an incident significantly different than what is described by the complainant but states having made these observations on the day the complainant attended the hospital and complained to the police.

320Therefore, the Court is not on balance, convinced that the accused would have threatened the witness J.W. as alleged by him. This evidence does not weigh in favour of the Crown as circumstantial evidence of guilt nor does it weigh against the accused`s credibility.

321Having carefully considered the complainant, M.L.’s evidence both separately and in the whole of the evidence, which includes K.D.B.’s denial, the Court finds that she is a credible and reliable witness. She is believed beyond a reasonable doubt.

322Her testimony provides the Court with the near certainty required as a basis for guilt beyond a reasonable doubt. The Court is sure that the accused provided M.L. with lorazepam which in turn caused her to lose consciousness. The Court is convinced beyond a reasonable doubt that his interest in doing so was a means to commit a sexual assault on M.L.. It is also sure that she woke up with the accused next to her and that she had semen on her back.

323M.L. presents as a reasonable and articulate witness. She was responsive to the questions and not argumentative. She was able to clearly convey events as observed by her. She did not venture guesses when unsure.

324Nor did M.L. embellish her evidence. She readily portrays herself in fairly negative terms. She had a severe substance abuse problem, was transient and no one wanted to have much to do with her, including her own family.

325The Court noted her show of emotion when asked to describe waking up next to K.D.B.. She became emotional, tearful, had difficulty talking and asked for a break. Her show of emotion was tempered and appropriate. It is supportive of sincerity. This badge of credibility is considered with caution and awareness that looks can be deceiving. It is but one consideration amongst many others.

326There were no significant internal inconsistencies or contradictions in her evidence. She remained confident throughout her testimony. Nor was she shaken in cross-examination.

327Her ability to remember and convey relevant factual details and how she felt at the relevant times are seen as a measure of her credibility and reliability. The following are noted as examples of such ability:

• The state of her hair and clothing when she went to bed
• The movie she was watching
• How she felt heavy; she couldn’t move; she had never experienced such a feeling before
• The state of her hair and clothing when she woke up
• Her position in the bed when she woke up; the accused`s position and his clothes around his ankles; what he was wearing
• What was said by both at the time
• How the accused left the room
• The description of the substance on her back and why she concluded that it was semen
• How she felt very scared, very confused and violated
• Why she wanted to shower
• Why she delayed in contacting the police; she felt shame and had doubts in her mind; unsure whether she would be believed
• How she felt uncomfortable, really tense and scared when she met the ASAP nurses

328The presence or absence of motive for the complainant to fabricate is also considered with caution and is only one factor to be considered in assessing credibility.

329K.D.B. `s initial suggestion was that M.L. fabricated the story as a result of him telling her and M.M. to leave his residence. He later suggested a second motive namely that he had taken her cocaine because she had stolen his cell phone and lap top computer.

330The complainant was never confronted in cross-examination with either of these possible motives to fabricate. Failure to do so makes it such that this evidence does not weigh against the complainant`s credibility. The end result is that the evidence does not reveal a motive why the complainant would fabricate against the accused person. In fact, the evidence would suggest otherwise:

• She had nowhere else to live since nobody else wanted her around
• She wasn`t paying the $200 per month agreed upon according to the accused
• She was allowed to freely consume cocaine and alcohol in the home

331The evidence of expert witness Vivienne Luk is found to be supportive and corroborative of the complainant’s version. It is objective, expert, reliable, scientific and independent extrinsic evidence which bolsters M.L.`s version as follows:

• It confirms the presence of lorazepam in her system
• Since lorazepam is detectible in blood for 2 to 3 days following ingestion and up to 7 days in urine, its presence in a urine sample but absence in a blood sample both taken on October 7th, is consistent with the complainant`s version that she took the pill on October 5th
• The description of lorazepam as a central nervous system depressant which may cause lack of muscle control, weakness, loss of consciousness, impaired memory and confusion is consistent with the complainant’s description of how she felt after taking the pill
• The effects would be expected to be greatest in someone who had never taken this drug or an infrequent user; M.L.`s evidence is that she had never taken lorazepam; she admits having taken clonazepam long before the incident
• The effects may increase when used in combination with alcohol and cocaine as in this case

332A complainant`s post-event conduct as a measure of credibility or lack thereof must also be looked at with caution. As stated by the Supreme Court of Canada in R. v. D.O., [2000] 2 S.C.R. 275, 2000 SCC 43 at paragraph 65:

“A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.”

333Both counsels have raised the complainant’s post-event conduct in support of their respective positions.

334Defence argues that the taking of a shower and the washing away of the semen should weigh against M.L.’s credibility. This amounts to the destruction of evidence and not consistent with what one would expect from a victim. She would have known this as she is familiar with television shows such as CSI. The expectation is that she would have preserved the evidence if she was truthful.

335The Court agrees that in a setting where logic and reason prevail, the expectation is that a witness would want to preserve evidence. However, the complainant’s actions were not in a setting where logic and reason prevailed. She was scared, confused and felt violated. She was in shock and wanted to remove the substance off her back as soon as possible.

336In the end, the fact that she did not put her mind to the preservation of evidence in such circumstances, while a consideration does not impact on her credibility.

337For his part, Crown counsel relies on the complainant’s willingness to undergo an invasive sexual assault examination as circumstantial evidence to corroborate her version of events. Reference is made to the recent Ontario Court of Appeal decision in R. v. Mugabo, 2017 ONCA 323, [2017] O.J. no 1979 where the Court deferred to the trial Judge’s finding that the complainant’s willingness to undergo an invasive sexual assault examination was properly considered, amongst other factors, was supportive of her credibility.

338The Court stated the following at paragraph 25:

“ … It has long been held that post-event demeanor of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant’s version of events: R. v. J.J.A. 2011 SCC 17 ….

339It should be clear that the complainant M.L. is not seen as more credible by reason of her contacting the police and pursuing a complaint against K.D.B.. The fact a complainant pursues a complaint cannot be a piece of evidence bolstering credibility. (see R. v. G.R.A., [1994] O.J. no 2930)

340The fact that M.L. ultimately agreed to participate in what was described by witness ASAP nurse Stacey Chisholm and shown to be a fairly invasive examination is supportive of credibility; It is certainly not determinative. It is one consideration amongst many.

341The Court is mindful that the sexual assault examination of October 7th, 2015 did not reveal the presence of DNA evidence on the complainant’s body notwithstanding the swabbing of her body parts. Nor was DNA located on her clothing and the bed sheets.

342There is no question that the absence of evidence when a finding is expected is a significant consideration for the Court.

343Since M.L. showered and washed her back after they woke up, it is not expected that DNA would be found on her body.

344Not knowing the nature of the sexual act or acts which led to the presence of semen on her back, the Court cannot assess whether or not the accused’s DNA is expected in her various body parts which were swabbed by the ASAP nurse. Nor can the Court speculate that the semen would have been in contact with the bed sheets.

345In the end, the Court’s view is that the circumstances are such that the absence of DNA evidence does not weigh against the Court’s finding that the complainant is a credible and reliable witness.

346The end result is that the Court finds that the Crown has, through the complainant’s testimony when analyzed in the whole of the evidence established the essential elements of sexual assault and administration of a stupefying drug beyond a reasonable doubt.

347The specific findings for the sexual assault are as follows:

• The presence of semen on the complainant’s back amounts to an intentional application of force
• The accused’s proximity to the complainant coupled with his genitals being exposed establishes that he applied this force
• The complainant did not nor could she consent by reason her condition; she was unable to voluntarily agree to engage in a sexual activity with the accused;
• The accused knew that the complainant was not consenting and in fact, could not by reason of her condition, consent to a sexual activity;
• The providing of the lorazepam reinforces the notion that the accused knew the complainant was not consenting and could not consent;
• The contact took place in circumstances of a sexual nature
  • Incident occurred in the complainant’s bed
  • The nature of the substance on her back
  • Clothing lowered to their ankles
  • Both of their genitals were exposed

348The findings for the administration of a stupefying drug are as follows:

• Lorazepam is a stupefying drug capable of instilling a state of little or no sensitivity to surroundings, confusion and inability to think
• Its effect can be exacerbated when combined with alcohol and cocaine (in the withdrawal stage)
• K.D.B. knew the effects of lorazepam mixed with alcohol; that it could bring unconsciousness
• He knew that the complainant had consumed alcohol and cocaine on October 5th, 2015
• He is found to have misled the complainant on the effects of lorazepam
• He is found to have provided a lorazepam pill as described by the complainant
• The complainant’s evidence reveals that K.D.B. was sexually attracted to her as evidence by:
  • His inappropriate comments
  • Entering the washroom while she was having a shower
  • Slapping her behind while she was showering
• The fact that the complainant loses consciousness after taking the pill
• The fact that she woke up in bed with the accused with both of their genitals exposed and semen on her back

349The cumulative effect of these circumstances leads the Court to the conclusion that K.D.B.’s intent was for the lorazepam to act as a means to sexually assault the complainant.

350These findings, in turn, make it such that the sexual assault and administration of a stupefying drug form the factual basis for the accused’s failure to keep the peace and be of good behavior contrary to section 145 of the Criminal Code.

351Finally, counsel for the accused confirmed that K.D.B maintained his guilty plea to the section 110 breach notwithstanding his evidence in regards to the firearm seized by the police. Counsel indicated that the accused admitted possession of the firearm since he knew it was in the house but not specifically in the drawer as found by the police.

Conclusion

352For the reasons stated by the Court in their judgment, K.D.B. is found guilty under counts 1, 2, 3 and 6 of the indictment. Counts 4 and 5 are to be marked withdrawn at the Crown’s request.

Justice Ronald M. Laliberté Jr.