Court File and Parties

COURT FILE NO.: 16-51 DATE: 20170615 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN -AND- J.D.

Counsel: Matt Collins, counsel for the Crown T. Mazzerol, counsel for the Defendent

HEARD: May 8th, 9th and 10th/2017,

Lacelle, J.

REASONS FOR JUDGMENT

Introduction

[1] The accused J.D. and the complainant L.R. were in a brief relationship after meeting through a friend on Facebook. In late January of 2014 that relationship came to an end.

[2] The accused is alleged to have committed a number of offences involving the complainant on January 29, 2014. He has pleaded guilty to several of those offences. Given his admissions, he is found guilty of assault causing bodily harm, mischief, breach of probation, and theft.

[3] The accused does not agree that he sexually assaulted or unlawfully confined the complainant. A trial was held regarding those offences alone.

[4] During the trial, the complainant testified, as did her father and the officer-in-charge of the police investigation. The defence called no evidence.

[5] The issue I have to decide is whether the sexual assault and forcible confinement occurred as alleged by the complainant. This turns on whether the evidence of the complainant is sufficiently credible and reliable to prove beyond a reasonable doubt that the acts constituting these offences occurred.

Background

The admitted facts

[6] An agreed statement of fact containing admissions pursuant to s. 655 of the Criminal Code was filed at the opening of the trial. It sets out the facts that form the basis for the accused’s plea of guilty to certain offences. Very generally, the facts are that the accused and complainant argued on the morning of these events. The complainant told the accused she was ending the relationship. Over the course of the morning, the accused consumed a great deal of alcohol. The complainant told the accused she disapproved of this given he was a guest in her parents’ home where she was living at the time. The accused nevertheless continued to drink.

[7] At some point, the complainant went online to converse with a friend over the internet. The accused punched the computer screen being used by the complainant and damaged it. She retaliated by yelling at the accused, and then throwing his laptop on the floor and stomping on it. The accused then struck the complainant on her mouth with the back of his hand. This caused the complainant’s mouth to bleed, and she fell to the floor. She got up to defend herself but the accused struck her again, on her right eye, with the back of his hand. At some point in the assault the accused also stomped on the complainant’s foot.

[8] The complainant again fell to the floor and upon coming-to she noticed that her ribs were sore and one of her fingers was injured. She got up and tried to go after the accused, but he was easily able to prevent her from striking him.

[9] After this, the complainant tried to find a phone to call for help. She could not find a phone, and suspected the accused had hidden the phones in the house. When she eventually found one, she called her father. He came to the residence and removed the accused, ultimately taking him to Ottawa to catch a flight to his home.

[10] The accused admits that at some point during these events, he took the complainant’s cell phone. The complainant found it close to a month after these events. The accused had contacted her and told her where it was. The phone was found in damaged condition in an eavestrough at the rear of the residence. The accused told the complainant that after damaging the phone he had thrown it up into the eavestrough.

[11] As a result of the accused’s assaults, the complainant had a number of injuries. They included a black eye, a swollen and cut lip, bruised ribs, bruising to her hip and knee, a fracture to her finger, and swelling and bruising to one of her toes. She was also found upon medical examination to have blood in her urine.

The disputed facts

[12] In her evidence during the trial, the complainant described the events outlined above, as well as additional offences.

[13] The complainant testified that the couple had been arguing all week, and this day was particularly bad. She recalled they argued that morning about a number of things, including the fact that the complainant would not have sex with the accused. She said that it was after the accused smashed her computer monitor and she stomped on his laptop that things started to really escalate. The complainant told the accused to leave the residence, and threatened to call the accused’s probation officer, but this did not help in ending the conflict.

[14] The complainant recalled that at some point after the smashing of the computers, the accused followed her into her bedroom. The complainant agreed that she may have then turned around to confront the accused. In any case, once in the bedroom, she says that the accused pushed her onto the bed. The accused was calling her names and said she was a “whore” and a “cunt”, and that she was “just like the rest of them … start out nice and turn out the same”. He kept telling her “you want it you want it I know you want it”. The complainant says she told him no and told him to get off her.

[15] The accused then produced zip ties and tied the complainant’s wrists together. She did not know what they were at the time, or where he had taken them from. She recalled becoming hysterical at this point and trying to kick the accused off her. She recalled that her wrists were tied in a manner that had them crossed in front of her. The accused continued to call the complainant names like “cunt, whore, slut” and saying “you’re all the same”.

[16] The complainant testified that she turned her head to avoid the accused kissing her. She also said that he inserted his fingers inside her vagina. This lasted about a half minute. At this point, the complainant said she thought the accused was going to rape her. She decided to change tactics and started to beg him to take the ties off. She told him they would discuss their relationship. She told the accused the ties were hurting her. She testified that that they were tight.

[17] The accused then untied the complainant’s wrists. As to whether she was tied anywhere else, the complainant thought that the accused had tried to tie her ankles but that this did not work because she was kicking so much. She was not sure if the ankle tie was ever on completely.

[18] After she was untied, the complainant said she “went at” the accused who was near the bedroom door, trying to get past him to run up the stairs. She was pushed back by the accused into the closet door in the bedroom.

[19] The complainant testified that it was after these events in the bedroom that the assaults admitted by the accused occurred.

The positions of the parties

[20] The Crown argues that the evidence of the complainant should be accepted in its entirety. He says she was both credible and reliable, and points to the admissions made by the accused about other aspects of what occurred that day as providing reassurance on both those points. The Crown also argues that the complainant was not shown to be inconsistent on any significant issue, and that the reliability of her evidence is confirmed in a number of ways, including by the photos of her injuries, and by the production of zip ties to the police days after the alleged sexual assault.

[21] The defence emphasizes the presumption of innocence, the meaning of “reasonable doubt”, and the Crown’s onus of proof in arguing that the complainant’s evidence is neither sufficiently credible nor reliable to support findings of guilt for the offences of sexual assault and forcible confinement. The defence highlights various areas of the complainant’s evidence as troubling, particularly as regards how the zip ties were used during the alleged sexual assault, and what the complainant did with them afterward. With respect to the complainant’s credibility, the defence argues that the evidence supports the view that the complainant had a motive to fabricate these allegations. He also argues that she has been contradicted by third parties, which shows she has been careless with the truth in her evidence. With respect to the reliability of the complainant’s evidence, the accused argues that the court should at least have a reasonable doubt about whether the complainant was drinking during these events given the evidence from her father as to her condition when he arrived home. The defence argues that the totality of the evidence, and the absence of evidence on certain issues, gives the court ample reason to doubt the evidence of the complainant.

The legal principles

[22] In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.

[23] In deciding a case, a judge can believe a witness but still be left with a reasonable doubt about what happened after considering all of the evidence. A judge must always determine based on all the evidence called whether the Crown has proved each element of every offence charged beyond a reasonable doubt, because there is evidence that the judge accepts that supports each element the Crown is required to prove.

[24] Our law has developed in this way because of the jeopardy accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which he is charged. If the evidence is not strong enough to show with that degree of certainty that the accused committed the offence, the accused must be acquitted.

Analysis

[25] The defence has quite properly highlighted a number of features of the evidence which need to be carefully considered by the court in assessing the credibility and reliability of the complainant’s evidence. I will deal with the most significant of these in turn.

There were no marks on the complainant’s wrists

[26] The defence highlights the fact that notwithstanding the complainant’s evidence that the zip ties were tightly attached to her wrists and she engaged in a struggle of some time with the accused while they were attached, there is no evidence that she sustained any marks or injury to her wrists as a result. While in some cases the absence of evidence of injury might give rise to a reasonable doubt, given the totality of the evidence in this case, I do not doubt the credibility of the complainant’s account because no marks resulted from her struggle with the accused. Zip ties similar to those allegedly used on the complainant were entered as exhibits. They are made of a thick plastic. I cannot say that material of this kind, even if attached tightly to a person’s wrists, would necessarily leave marks on the skin after a struggle. Human experience suggests that sometimes the application of force may leave marks that are present for some time, other times it may not. The probability that it will depends on many factors. In some cases expert evidence may be of assistance. No such evidence was called here. In the circumstances the absence of a mark or injury does not lead me to doubt the credibility of the complainant’s account.

The complainant’s disposal of the zip ties used during the alleged offences

[27] The defence also argues that the complainant’s conduct in throwing out the zip ties used during the alleged sexual assault is a factor that should cause the court to reject her evidence. It says this conduct is troubling, and results in an absence of evidence that might corroborate her account that the accused first tried to cut the ties by biting them and then by cutting them with scissors.

[28] I have considered the evidence on this issue and the complainant’s explanation for this conduct carefully. The complainant testified that she did not know at the time of the alleged sexual assault what was used to tie her wrists. The only evidence before me is that the accused had been staying in her bedroom for a number of days before these events while the complainant slept in a spare room. It is plausible in the circumstances that there might be items in her bedroom that she had not placed there, both at the time of the alleged sexual assault and afterwards. The complainant explained that in the aftermath of the assaults after the accused had left the residence, and before her first interaction with police, she found ties in her bedroom that she assumed were garbage bag ties because of the way they tied. She says she threw them in the garbage, not realizing their significance at the time.

[29] The fact that the complainant had thrown out the zip ties was raised by her during her first interview with the police. The portion of the transcript that was put to her during the trial appears to include the moment she realizes she has put them in the garbage, that the garbage has gone out for pick-up, and the ties will not be available as evidence. She says to the officer, “When you drive me back, I am going to give you something out of, no. Fuck. The garbage went out. He bound me with, you know, like garbage bag things”.

[30] I find the complainant’s explanation for her actions is plausible in the circumstances. Her reaction to realizing what she had done is unvarnished and shows an initial intention to turn over relevant evidence. In considering whether the complainant deliberately destroyed evidence, I also consider that her conduct in throwing out evidence was fully acknowledged by her, even at the time of the police interview. It seems strange that if she wanted to hide relevant evidence, that she would also not try to hide her own disposal of it. In the end, having observed the witness as she testified about this issue, and given the substance of her evidence, I am not satisfied that the complainant deliberately destroyed evidence or that her credibility should be doubted for that reason. I also do not doubt her account because this potentially corroborative evidence was not adduced during the trial.

The order of what was tied up first

[31] There is an inconsistency in the complainant’s evidence at trial and her first statement to police about whether her feet or wrists were tied up first. In the police statement, the complainant says her feet were tied first. At trial, she said her wrists were tied first, and recalled only one foot possibly being tied. In addition to highlighting this discrepancy, the defence argues that it is implausible that the complainant could be kicking the accused and trying to get him off her as she testified at trial if her feet were bound.

[32] While I find that there is an inconsistency in the complainant’s account, I am not overly troubled by it largely for the reasons argued by the Crown during his submissions. The complainant has been consistent that she was restrained by the accused, and that she was bound by some kind of tie. It is understandable that given the passage of time the details about how she was bound would become confused. I accept that when they were on the bed, and as she was being bound, the complainant was trying to free herself from the accused. Her attention at the time, and her memory afterward, was reasonably focused on other things. The fact that she has been imprecise and inconsistent on the specifics of how she was bound is not a significant inconsistency in these circumstances.

[33] As to the implausibility of the complainant kicking the accused if her feet were bound, as I have said, I accept that the complainant was struggling with the accused. I do not find it implausible that she might be able to struggle with the accused, including by using her legs, during the course of events she described.

The complainant’s motive to fabricate

[34] The defence argues that the complainant demonstrated some animus toward the accused in the aftermath of these events and that she has a motive to fabricate. Counsel points to the complainant’s comments to her father when he arrived at the residence to the effect that he should “get” the accused. Counsel says the evidence discloses she had a motive to fabricate because disclosing to her father only that the accused had hit her did not meet with more of a response from her father than to remove the accused from the premises.

[35] While I accept that the complainant told her father to “get” the accused, I also accept that she said this because of her feelings in that moment. The evidence also disclosed that the complainant and the accused remained in contact with one another after these events for a number of weeks. I accept the complainant’s evidence that she had mixed feelings towards the accused after these events, and that she still cared for him to some extent for some time.

[36] As far as the alleged motive to fabricate is concerned, the evidence of the complainant was that she understood that her father would not be supportive of a complaint to police. The complainant made the complaint to police herself. There is no evidence that she received any additional response from her father as a result of making that complaint, nor anything in her evidence or that of her father which supports the notion that making the complaint of a sexual assault in addition to the other assaults would somehow make her father more responsive to her. The totality of the evidence on the complainant’s alleged animus and motive to fabricate does not lead me to conclude that the complainant had a reason to fabricate her evidence, nor do I have a reasonable doubt that she did.

Did the complainant call the OIC after finding the zip ties?

[37] While there is no doubt on the evidence that the complainant turned black zip ties over to the officer-in-charge of the case sometime after the alleged sexual assault, there is a discrepancy as between the evidence of each about whether the complainant had called him about the ties before he attended at her residence. The officer testified that he was already going to her residence for follow-up and that he had not received a call from the complainant. The complainant said that upon finding the zip ties between the mattress and box spring of her bed while she was searching for her missing phone, she phoned the officer to alert him to her discovery.

[38] How the officer came to be at the complainant’s house is far from a material issue in this case. I am not satisfied that any discrepancy on this issue is significant enough to count against the credibility or reliability of any witness. I would also add that my observation was that the officer-in-charge was very reliant on his notes as he testified. If he had not made an entry about the phone call, I doubt he would have an independent recollection about it. Having observed and heard the witnesses, I believe the complainant had a better independent recollection of her interactions with the officer. I also consider that the officer never explained why he was going to the complainant’s address, or what “follow-up” he was intending to do. It is at least plausible that a call had been made to him, and he did not make a note about that. It is further plausible given the lack of specificity in his evidence about what “follow-up” he was doing that he was attending because he had been notified that the complainant had evidence to hand over to him, which is consistent with the complainant having called him first. To the extent this issue matters, I prefer the evidence of the complainant on this point.

The discrepancies between the evidence of the complainant and her father

[39] The complainant’s father, Mr. H., testified and gave some evidence which contradicted that of the complainant. Before I discuss the significant issues on which there is a disparity in the evidence, I begin by considering the quality of the evidence given by Mr. H. While I find he was a credible witness, the manner in which he testified and the substance of his testimony leave me with significant concerns about its reliability.

[40] It was clear as Mr. H. testified that recalling details from more than three years ago was difficult for him. He frequently said in his evidence that he believed things happened in a certain way, and just as often said he was not sure about or did not remember certain details the lawyers sought to elicit from him. A sense of uncertainty permeated his evidence and the manner in which he gave it. Given this, I do not have confidence that I can rely on his evidence other than in a very general way. All the same, it is important to address the more significant discrepancies in the evidence between Mr. H. and the complainant.

[41] There is a contradiction in the evidence of Mr. H. and his daughter about whether she had been drinking before he returned to the residence on January 29th. The complainant is adamant that she was not. Mr. H. said that he couldn’t really say why, but he thought both the complainant and the accused had been drinking. He further testified that he was aware of his daughter’s struggles with alcoholism, and that if she had any amount of alcohol he would recognize it. Mr. H. also testified that when he arrived home, the complainant was very upset, frantic, out of control, and that he had never seen her like this before. This is generally consistent with the complainant’s account that she was hysterical by this point.

[42] I prefer the evidence of the complainant that she had not been drinking that day. The complainant’s father provided no specifics about what aspects of her behaviour or other observations he made led him to believe she had been drinking. Given the complainant’s history as an alcoholic, and her condition on his arrival home, this was perhaps an easy assumption for him to make. There was no evidence he smelled any odour of alcohol on her person, or any other specific indicia that she had been drinking.

[43] I consider as well that the complainant was very forthright about her use of alcohol in that month, as well as the fact that she began drinking to cope with these events the next morning. Given her frank testimony about how she had been drinking before police arrived and how she was intoxicated for her first police statement, as well as her admission that she had had some alcohol on New Year’s Eve, it did not appear to me that the complainant was being dishonest about her alcohol use in order to paint herself in a more positive light. I do not believe that the complainant was strategically picking and choosing what instances of alcohol use to admit to further her interests in this trial. When I consider the evidence on this issue in its totality, I prefer the evidence of the complainant and I do not have a reasonable doubt that she was drinking on January 29th.

[44] The other point of significance in the evidence of Mr. H. is his suggestion that the complainant may have shown him the zip ties entered as exhibits in the trial, because this would appear to be contrary to the complainant’s testimony that she immediately contacted police and turned them over. Mr. H.’s evidence on this issue was particularly equivocal. When asked if he had ever seen the exhibits before, he said “I’m not sure”, that “it kind of brings back a memory”, and that he thought his daughter might have shown him something like this after the fact, but he can’t remember. When asked if he had items like this around the house, he said there could have been and he was not sure. The witness’s memory on these issues is so vague that I find it is not reliable. I am not satisfied that the complainant did show him any zip ties, let alone when that might have happened. This evidence does not lead me to doubt her account that she contacted the officer-in-charge as soon as she discovered the zip ties and produced them to the officer.

Features of the evidence supporting the credibility and reliability of the complainant’s evidence

[45] I have considered the issues outlined above in isolation and in their totality, in the context of the evidence as a whole. None causes me to reject the evidence of the complainant as incredible or unreliable. Overall, I find that the complainant was a credible and compelling witness. I arrive at that conclusion for a number of reasons.

[46] I found the complainant to have been very even-handed in her testimony generally. By way of example, when she was testifying about her injuries, I was struck by her candour in assessing their relative significance. When directed to a photograph showing one of her bruises, she said something to the effect of “that wasn’t a big deal”. She made it clear that the injuries that most bothered her were the pain in her ribs and the injury to her eye. She did not focus on the tenderness to her vagina, or try to embellish the significance of any of her injuries. She struck me as very honest and measured in her account of what injury was significant and which was not. While the focus of the trial was the alleged sexual assault and forcible confinement, she did nothing to emphasize the significance of those events in her narrative. She seemed to have no agenda in that regard.

[47] I was also struck by the complainant’s explanation of her conduct during the sexual assault. She explained that because she thought she would be raped, she decided to change her tactics with the accused. Ultimately, the complainant did not testify that she was raped, but that the accused inserted his fingers into her vagina for about thirty seconds. If this were a fabrication, one might expect a more expansive allegation of the extent of the sexual assault. The complainant’s account of her own inner assessment of how best to escape this situation also strikes me as having the ring of truth.

[48] I also found the complainant to be very fair in her evidence about her role in these events. At one point she said she was “no angel in this”. She never shied away from admitting behaviour she now recognizes was wrong. She admitted breaking the accused’s computer in retaliation for his damage to the computer she was using, and said she should not have done that. She admitted urging her father to “get” the accused and the fact that she wanted her father to beat him up when he arrived at the residence and also said shouldn’t have done that. She appeared sincere in those comments. She was never shown to have minimized her own conduct.

[49] The complainant was also very forthright and matter of fact about personal and potentially embarrassing issues that were discussed during her evidence. She fully set out her history with various medications and the reasons she took them as well as her history as an alcoholic. She acknowledged a criminal conviction for driving under the influence and occasions where she had used alcohol in and around these events. She was never evasive about any of this.

[50] The complainant’s account of having contact with the accused after the fact because she still cared for him also impacts on my assessment to some extent. There is no doubt that contact occurred, since the accused admitted it as part of the agreed facts with which the trial opened. The complainant’s admission that she was “all over the place” with respect to her feelings for the accused shows the complexity of her feelings and as I have said, goes against a view that she had such animus toward the accused that she would fabricate these allegations.

[51] Finally, in determining whether to accept the evidence of the complainant as credible and reliable, I consider the corroboration that exists for many aspects of her account. First of all, a great deal of her narrative of the events is fundamentally if not entirely corroborated by the admissions made by the accused. The reliability of her account of events other than the alleged sexual assault and forcible confinement is confirmed by its detailed similarity to the facts the accused admits. The reliability of her evidence about those issues suggests she is a generally reliable witness who was able to observe and recall what occurred that day with accuracy. On this record, there is no compelling reason why her account of additional events that occurred the same day would be any less accurate.

[52] There is also corroboration for her account of assaultive behaviour in the bedroom, which fact was not admitted by the accused. There is no doubt that the mirror on the closet door in the bedroom was damaged. This is confirmed by the evidence of the officer-in-charge and in photographs taken of the bedroom. The fact that the door was damaged is consistent with the complainant’s account and enhances the credibility and reliability of her account of an altercation in the bedroom.

[53] Finally, there is the evidence of the zip ties found by the complainant between her mattress and box spring when she was looking for her phone. The complainant’s account of how she came to find the zip ties makes sense given other facts admitted by the accused, and I do not have a reasonable doubt as to her credibility on this issue. The complainant said she was looking for her phone because she believed the accused had hidden it. There is no doubt that the phone was missing because the accused ultimately did admit to having taken the phone, damaged it, and thrown it into an eaves trough.

[54] The location where these zip ties were located also accords with the complainant’s account that the accused was able to produce the zip ties almost immediately after they got on the bed. The complainant and the officer’s observations of the zip ties on the same corner of the bed where the sexual assault is alleged to have occurred provides some explanation for how the accused was so quickly able to produce the zip ties once the complainant was on the bed. The fact that one of the three zip ties found on the box spring was pre-tied is also consistent with the scenario described by the complainant to the effect that the accused produced the ties and was able to secure her wrists with some speed. I accept that the complainant called the officer when she located these ties, and that the officer observed them in the location where the complainant found them. Given my acceptance of those facts, the presence of zip ties in the room where the complainant says she was sexually assaulted with similar ties provides powerful corroboration of her account.

[55] As far other scenarios that might explain the presence of the zip ties on the box spring, the only reasonable alternative is that the complainant put them there, and was fabricating evidence. This suggestion was not put to the complainant. On the totality of the evidence, I do not believe this occurred, nor do I have a reasonable doubt that it did.

Conclusion

[56] When I consider the totality of the evidence I find that the complainant’s account is both credible and reliable. I am satisfied beyond a reasonable doubt that the acts occurred as she alleged.

[57] There is no issue in this case that if the facts alleged by the complainant are accepted as proven beyond a reasonable doubt, the offences of sexual assault and forcible confinement are made out. Since I accept the facts given by the complainant in respect of each of these offences, in addition to the offences to which he has pleaded guilty, the accused is also found guilty of the offences of sexual assault and forcible confinement.

Madam Justice Laurie Lacelle

Released: June 16, 2017

COURT FILE NO.: 16-51 DATE: 20170615

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES or COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE.

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN -AND- J.D REASONS FOR JUDGMENT Madam Justice Laurie Lacelle Released: June 16, 2017