Court File and Parties
COURT FILE NO.: CR-16-0013 DATE: 2017/07/05 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. N.K.
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Lee A. Burgess, for the Crown Jason I. Easton, for the Accused
HEARD: June 5th – 9th, 2017 and verdict delivered July 5th, 2017
Reasons for Judgment
Introduction
[1] On October 7th, 2014 Rita Brown [^1] was taken by the accused to a secluded cottage on a lake south of Bancroft. It is undisputed that sexual activity occurred at the cottage. Whether or not it was consensual determines whether it was a crime. In this case the court is faced with competing narratives. One narrative is a romantic liaison between long term sexual partners and the other is a night of deception, betrayal of trust and horror. This was the focus of the trial which took place in Belleville between the 5th and 9th of June.
[2] The evidence supports the latter version of events. The Crown has proven beyond a reasonable doubt that the accused is guilty of each of the offences with which he was charged.
[3] In briefest terms, the facts are these. Having lured the complainant to the cottage under false pretences, the accused then assaulted her, threatened to kill her dog and engaged in non-consensual sex. This was not the end of the ordeal. Early the next morning the accused lost control of his speeding vehicle which rolled over in a ditch. The complainant was injured and was taken to hospital. When she returned to Ottawa the accused engaged in criminal harassment. He had her cellular telephone and keys to her apartment. He repeatedly tried to contact her, came to the apartment and slid disturbing communication under her door.
[4] These reasons detail my analysis of the evidence and findings of fact.
Preliminary Issues
[5] The accused was charged with four separate offences and the matter came on for trial before me in Belleville on June 5th, 2017 sitting as a judge without a jury.
[6] The four counts in the indictment may be summarized as follows. Count 1 was a charge of assault contrary to Section 266 of the Code. Count 2 was a charge that the accused threatened to kill the complainant’s dog contrary to Section 264.1 (1) of the Code. Count 3 was a charge of sexual assault contrary to Section 271. Count 4 was a charge of criminal harassment contrary to Section 264 (2).
[7] Before proceeding, it is important to address the publication ban and the manner in which I have referred to the complainant in these reasons. Although the temporary publication ban in place during the trial itself has now expired, there is a permanent prohibition under Section 486.4 of the Code. No person is permitted to disclose any information that could identify the victim of a sexual assault or certain of the witnesses. In order to give effect to that order and to further protect her privacy, in these reasons I have referred to the complainant by the pseudonym of “Rita”. For the same reason I have referred to witnesses, locations and the accused in anonymous and generic fashion and not by name.
[8] There was also a preliminary application under Section 276 of the Criminal Code.
Section 276 Voir Dire
[9] The accused alleged that he and the complainant had a long standing sexual relationship which began years earlier and continued up until the time of the car accident. His counsel wished to cross examine the complainant on this point and to have leave to introduce evidence to prove what the accused alleged to be a lengthy history of clandestine sex. Before this could be allowed, the accused was required to bring an application under Section 276 of the Criminal Code.
[10] The important point about Section 276 of the Code, the so called “rape shield” provision, is the prohibition on using any evidence of sexual activity other than the activity which is the subject of the charge for “twin myth” reasoning. Evidence that “the complainant has previously engaged in sexual activity, whether with the accused or any other person, is never admissible to support an inference that, by reason of the sexual nature of that activity”, the complainant is “more likely to have consented to the sexual activity that forms the subject matter of the charge” or that the “complainant is less worthy of belief”. [^2]
[11] If the evidence is to be used for a different purpose then it may only be introduced with leave of the court following the procedure set out in the section if it meets the statutory test. In particular the court must be persuaded that the evidence of other specific instances of sexual activity is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the factors set out in the statute. [^3]
[12] As the key witness for the Crown, credibility of the complainant would be a critical issue. Because she was denying the previous sexual relationship and as that relationship formed the context for the narrative advanced by the accused, the evidence of an ongoing intimate relationship was important to his right to a full and fair defence. Balancing that right against the importance of protecting the privacy and dignity of the complainant, I concluded that the evidence would be admissible for a limited purpose. Specifically I ruled that the evidence of a previous sexual relationship might go to the question of credibility and to explain the circumstances under which the complainant and the accused arrived at the cottage but could not be used to infer consent.
[13] The analysis required by s. 276 and my ruling on the matter is set out in a separate written endorsement which formed part of the voir dire. A version of those reasons has now been released and need not be repeated here. [^4] I will just note that a preliminary version of those reasons along with the affidavit of the accused was originally a sealed letter exhibit. This was to comply with the privacy protection set out in Section 276 and to preserve the constitutional right of an accused to remain silent for the trial even if he testifies in the voir dire.
[14] Subsequently the accused elected to testify at the trial and to utilize his voir dire evidence as part of his trial evidence. This meant the exhibit was unsealed and made a numbered exhibit. I amended the original endorsement to reflect this and to eliminate any reference to the identity of the complainant.
The Evidence at Trial
[15] The Evidence on behalf of the Crown consisted primarily of the evidence of Rita Brown herself. The Crown also called eight other witnesses to prove aspects of its case. This included a paramedic, a nurse and a police officer who were involved with the complainant following the accident. I also heard from a neighbour of the complainant in Ottawa, from her father and her grandmother, from a veterinary technician and from the investigating officer, Detective Constable Dano. Two of the witnesses testified by video link and one by telephone. [^5] There was also a book of admissions (Exhibit 1) and a Book of Exhibit Material (Exhibit 2) as well as a small number of other exhibits identified by the witnesses (Exhibits 3 – 9).
[16] As noted, the accused elected to testify. The evidence on his behalf consisted of his affidavit and his evidence given during the voir dire as well as additional evidence given during the trial itself. The accused called no other witnesses.
[17] Unlike a civil proceeding, a criminal trial is not a simple contest of credibility between two parties. While the criminal law increasingly recognizes the need to provide support for victims of crime and in particular to protect the privacy and dignity of victims of sexual crimes, the fact remains that a criminal proceeding is a contest between the state (in the name of the sovereign) and the individual accused. The complainant is not a party to the proceeding but appears in the role of a witness. Canadian criminal procedure remains anchored in the constitutional guarantee of presumption of innocence; a guarantee which exists for the protection of all citizens and not merely the accused before the court. [^6]
[18] In relation to each count faced by the accused, the question is the same. Has the prosecution met the significant evidentiary burden of proving the elements of the offence beyond a reasonable doubt? As we are reminded by the Supreme Court of Canada, when the accused testifies this does not mean that he will be automatically convicted if his evidence is not believed. If his evidence is believed in its entirety or if it creates a reasonable doubt on any of the counts with which he is charged, acquittal on that count is required. On the other hand even if he is not believed, he must be acquitted unless the evidence that is accepted is sufficient to prove all elements of the particular count beyond a reasonable doubt. [^7]
[19] In a case such as this when the only persons present during the night in question were the complainant and the accused, I must be satisfied on the applicable standard that the evidence of the accused is false but I must also be convinced beyond a reasonable doubt that the evidence led by the Crown establishes guilt.
The Evidence of the Accused
[20] Although I heard the evidence of the accused last, I will deal with it first. That is because as set out above, I would be bound to acquit him if I found that evidence either completely compelling or at least sufficient to raise a reasonable doubt. Neither of those circumstances apply because the evidence of the accused is almost completely lacking in credibility.
[21] The accused is an unreliable witness who appears to lie instinctively. On almost every point in his evidence he provided various versions of the same fact and under cross examination he was evasive. Frequently he would contradict his own evidence. He refused for the most part to recognize significant differences between the version of the facts he gave to the police, in his affidavit at the voir dire and at trial. On at least one occasion he refused to confirm the very evidence he had given in examination in chief when the same question was put to him in cross examination.
[22] There were significant portions of his testimony that were demonstrably untrue. It was part of his narrative that his brother had owned the cottage in Bancroft since 2010 and he testified that he had been to family gatherings with his wife perhaps three or four times per year. He testified that he had first told the complainant about the cottage in 2011 and they had talked about going there. He testified that on the occasion in question she had agreed to go there so that the two of them could be alone and enjoy the cottage. He had an elaborate story about how pets were not allowed at the cottage because his brother rented it out to people who had allergies.
[23] In cross examination, he was confronted with a copy of the deed demonstrating that his brother only purchased the cottage in August of 2014 barely two months before he took the complainant there. He was unable to explain the discrepancy.
[24] He was also adamant that he did not keep the complainant’s cell phone. He testified that he left it in her apartment. After testifying that he had called the complainant’s grandmother from the complainant’s apartment using the phone, he later denied that he had done so. He steadfastly denied retaining the phone or using the phone even though the cell phone records for the period of October 8th – 13th, 2014 show the phone was used in various locations proximate to where the accused was at the relevant time. In particular the phone received a call on October 13th at the cell tower near the motel in Gatineau where he was staying and on October 14th the phone was used in the area near the home of the accused. There is no credible explanation for these cell phone records other than the phone being in the possession of the accused until the date the complainant had the number cancelled. When this was put to him, he alleged a “well-orchestrated plot” which is a preposterous explanation. [^8]
[25] The accused gave different estimates of the frequency of sexual relations with the complainant every time he was asked. When interviewed by the police he stated that they had sex no more than 10 times. In his affidavit he stated that a sexual relationship began when the complainant lived with him for a period of two months in May and June of 2010. He then attested that after his marriage in 2012 he occasionally had consensual sex with the complainant. His affidavit stated that this was approximately one or two times per month up until October 7, 2014. When cross examined he stated that there were also periods of time in 2011 and 2012 before his marriage and he estimated that the encounters both before and after marriage were as often as 2 or 3 times per week. He refused to admit or explain the inconsistency between these versions of events.
[26] When interviewed by the police as to where these encounters took place, the accused gave the names of two motels. The police obtained records showing the dates when the accused stayed at these motels and while there were records from one of the motels during the relevant time period, there were none from the other. Furthermore the records that did exist did not match the accused’s evidence. At the trial he told the Crown that some of the reservations would have been made by his wife. His explanation for this was that he and his wife would book into the motel to use the Jacuzzi but his wife did not like to stay overnight so she would go home. He asserted that on those occasions, he would stay and then invite the complainant over for sex. The idea that he would pay for a motel just to use the Jacuzzi, that his wife would go home and he would then invite another woman over while trying to carry on a clandestine relationship or that he would take his wife home and then return to the motel is simply not believable. When this was put to him, he testified that he very seldom stayed overnight.
[27] Not everyone is able to reliably recall places and names and dates. Lack of precision or a tendency to become confused when asked questions does not in and of itself render testimony untruthful but it is a factor to consider when determining the reliability of the evidence. Some allowances must be made for the passage of time and the frailties of memory. For example, the accused could have been confused about the date when he says the relationship began. He attests in his affidavit that he lived with the complainant for two months until she was arrested at his apartment in 2010. It is true that the complainant was arrested at his apartment at one point when the police attended for other reasons and found her there but that occurred in 2011. The year could be wrong but this is not simply confusion. The parties were not living together in 2011 as the evidence shows the complainant had an apartment of her own at the time of her arrest.
[28] I can accept very little of the accused’s evidence that is not objectively supported by other evidence. As an example of this, though he appeared to deny it in cross examination, when he testified in chief he stated that he had phoned the complainant’s grandmother while he was in Rita’s apartment on October 11th. This is accurate. It is supported by the testimony of the grandmother who stated that she was told by the man who called her that he was in Rita’s apartment because he had her keys. It is supported by the cell phone records which show a call originating through the cell phone tower located just north of the complainant’s apartment.
[29] It is also possible to rely on certain of his admissions. For example he acknowledges that he put the papers forming part of the exhibit book under the complainant’s door and he confirms the complainant’s evidence that on that occasion he was accompanied by his wife. But he refused to acknowledge the apparent meaning of the phrase “bit off more than u can chew” and asserted that the meaning of the papers was to show that he was hurt that the complainant would not talk to him and was worried about her.
[30] He slid this note under the door of the complainant’s apartment on October 21st, 2014 shortly after the complainant had made a claim against the accused’s automobile insurance policy. Apparently the insurance claim had brought the fact that he was in the car in Bancroft with another woman to the attention of his wife. On October 14th, 2014 the complainant had also contacted the police about his unauthorized entry into her apartment which she discovered on her return to Ottawa. She had not yet reported a sexual assault.
[31] The note contained a series of phrases including the following: “The Man U left in the Ditch”, “generousity + hospitality = weakness?”, “Bitten more than u can chew !”, “Take it beyond? K.” and “All is Good – as cold as ICE – Take care and have a good life”. It was signed with his first name. While these phrases are seemingly random, they are consistent with the kind of comments the complainant reports the accused to have made during the events in the cottage. It is simply not believable that the accused intended to convey that he was hurt and wished to end their friendship as he testified.
[32] Accompanying the note were copies of three items apparently recovered from the internet. The first was a copy of an old CBC news item concerning proposed changes to the Child and Family Services Act. Apparently the complainant had been interviewed and expressed an opinion so her name was in the article. The other articles were more recent. One was a report that her father had been arrested for alcohol related offences and breach of probation in 2014. The other was an article from 2012 describing an occasion when her father had been arrested for possession of a controlled substance. The accused described the purpose of these articles as intending to convey his distaste for the fact that Rita had not told him of her family background or the kind of person her father was. He conceded under cross examination that he had never told Rita about his own extensive criminal record but he refused to concede that these articles about her family combined with the note were intended to intimidate the complainant.
[33] It is my assessment of the manner in which the accused responded to questioning that he was not confused but was prevaricating. In cross examination the Crown put to the accused that the reason for the inconstancies and evasiveness was that he was not telling the truth but just making it up as he went along. I am compelled to the same conclusion.
Evidence of the Complainant
[34] The credibility of the complainant must also be assessed because the Crown’s case is entirely dependent on her evidence being accepted. The law has long since abandoned the need for corroboration or the doctrine of recent complaint in sexual assault cases and it is therefore possible and in fact it may be entirely appropriate to convict an accused on the evidence of the complainant providing the court is in a position to accept it as honest, accurate and reliable.
[35] Counsel for the accused attempted to highlight inconsistencies in the evidence of the complainant and argued that it would be very dangerous to convict on such evidence.
[36] An important question was the nature of the relationship between the accused and the complainant. Rita denied that it was a sexual relationship but more importantly she denied that there was a close friendship of long standing. It was her evidence that she first met the accused at a foodbank in 2012. Under cross examination she admitted that the meeting at the foodbank must have been earlier than June of 2012 because she agreed that it was the accused who referred her to a criminal lawyer who assisted her with the disposition of certain criminal charges. She also agreed that an arrest report showing she was arrested for failing to appear in court must be accurate if it showed she was arrested at the apartment occupied by the accused. That arrest was in 2011. But she also testified that she knew she was arrested at a neighbour’s apartment, did not know the neighbour’s name or remember that it was the accused and she only remembers getting to know him at the foodbank.
[37] Counsel for the accused suggested that this demonstrated the complainant was lying. I do not share that assessment. She was forthright in acknowledging the discrepancies and did not attempt to dispute the facts shown in documents such as the arrest report.
[38] She was questioned about her criminal record. This consisted of four offences that were all disposed of on the same date in 2012 and for which she received a combined sentence. She testified that she believed the possession for the purpose of trafficking charge had been dropped and she had been convicted of simple possession but acknowledged the record of conviction must be accurate. She seemed genuinely surprised to learn that the record showed a conviction on each of four charges. She indicated that at the time of those offences and the fail to appear she had been heavily involved with alcohol.
[39] I believe that in her evidence the complainant minimized the extent of her relationship with the accused. Though she described the accused as more of an acquaintance than a friend, she acknowledged that he had done many things for her. After she met him at the food bank, he would occasionally stop when he saw her in the street and take her to get groceries. Occasionally he would buy her a meal. He helped her find an apartment on at least one occasion. Notably there was a time when she had been kicked out of the apartment where she was living and she ran into the accused in front of the Rideau Centre. At that time he paid for a hotel room and he bought her a bus ticket so she could visit her family in Cornwall. The most extravagant gift was a laptop computer. She testified that she did not want to accept this but he was insistent and she would have needed it for school as she had just enrolled in college. The accused had introduced her to his wife and spoken to her about his family.
[40] Even if it is accurate that the complainant only remembers meeting the accused at the foodbank in 2012, it is apparent she had met him earlier than that. She was arrested at his apartment. He was aware of her charges. He referred her to a criminal lawyer. Subsequently he did her a number of favours and supplied her with various gifts for at least two years leading up to the events in question. He obviously had her telephone number. He was able to convince her to go with him to what was supposed to be a family event.
[41] Nothing in the evidence supports the allegation by the accused that this was a sexual relationship or that the complainant regularly exchanged sexual favours for his assistance. While the accused gave evidence attempting to describe the interior of at least two of the complainant’s apartments to support the inference that he was a frequent visitor (something she denied) this evidence is inconclusive. Even if they were better friends than the complainant is prepared to acknowledge, it does not follow that they were lovers. For that matter it would not matter if they were except for her denial and his insistence. Whether they had such a relationship was important to the trial only insofar as the accused uses this to explain why the complainant went with him to the cottage. Her version of events is very different.
[42] The complainant testified that the accused called her and said he wanted to take her to a barbeque at his brother’s place near Kingston. She testified that he said his wife and his nephews and nieces would be there. Though she indicated she did not want to attend, he was insistent. On October 7th he showed up with his car and when she said again that she did not want to go, in her words he “guilted” her by saying she would embarrass him in front of his family (since he had told them she was coming) and she was being ungrateful after all of the things he had done for her. He told her they would collect his wife on the way. Eventually she capitulated but told him she would have to get some food for her dog and stressed that it was important she be back for a vet appointment. According to her evidence, he assured her they would be back and he took her to Loblaws to pick up some dog food and treats. She then left with him in his vehicle. He was in the front and she and the dog were in the back.
[43] Evidently the complainant’s version of events depends upon the accused and she having enough of a relationship that he could “guilt” her. Of course this does not prove they were close friends or sexual partners. There is no doubt the accused had done many things for the complainant and she had reason to feel indebted to him. In the final analysis, I accept the evidence of the complainant that she was pressured to go with him and did so against her better judgment.
[44] The complainant had been living on her own on the street, in the shelter system and as a client of the welfare system since the age of 13. At times she states that she was drinking heavily and as her arrest for possession of cocaine demonstrates she was at least peripherally involved in the drug scene. She often changed residences, was occasionally evicted and was sometimes dependent on the kindness of friends, acquaintances or strangers. This was a world in which formalities were often absent. For example she did not remember and may never have known the names of the people who were arrested in her apartment when she was charged with possession. She did not know the accused by his last name until after the car accident. After the car accident when she returned to Ottawa she had to “couch surf” with a friend named Tina. [^9] She does not know her last name to this day. She had family in Cornwall and was in contact with her father and her paternal grandmother. They did not support her and she did not live with them. It was her grandmother who had delivered her to a shelter when she was a young teenager and had run away from her mother’s home.
[45] It is against this background that her evidence must be assessed. Accepting favours from the accused and being pressured by him to come with him is believable. The complainant was asked if the accused had ever done anything to make her feel uncomfortable. She answered that once or twice he had touched her back and she had asked him not to do so. On one occasion she says he told her he would rather go out with her than with his wife. It was her evidence that she told him that was not appropriate and they had an argument after which they were not in contact for a month or so. The accused also acknowledged that there were times when they did not see each other. On the totality of the evidence, even if the accused saw himself as a “sugar daddy” the evidence of the complainant that the relationship was never sexual and she would not have gone away with him alone to a secluded cottage was not successfully impeached.
[46] The complainant’s dog played an important role in the narrative and also gives rise to another discrepancy in her evidence. The dog was apparently a cross between a boxer and other breeds and may have been part pit-bull. The complainant was very attached to the dog and she wanted to ensure the dog received her shots and also that she had some proof it was not classified as a pit-bull. This was the purpose of the appointment made with the vet and which figures in the testimony concerning the trip to the cottage.
[47] The complainant had testified that the vet appointment was the next day and that was one of the reasons she was reluctant to go out of town. It turns out the appointment was not for October 8th but in fact was for October 9th. When asked about this, the complainant stated that she had recently been told it was the 9th and not the 8th and so she must have been mistaken about the date. More significantly, under cross examination, she stated that she had not been to that vet before but the evidence of the veterinary technician and the records of the clinic show that the appointment for the 9th of October had been made at the time of a previous appointment. On that earlier occasion, the dog had not received any shots because the dog was nervous and aggressive. The records indicate that the clinic had noted a requirement for the dog to be muzzled on any future visit. When confronted with this, the complainant stated she had forgotten about the earlier appointment but now that she was reminded about it, she remembers it. She denied that the dog was generally aggressive but remembers being told about the need for a muzzle.
[48] It is also apparent that on the first occasion, the accused went with the complainant to the vet. This is not surprising because he had referred her to the vet (where he and his wife took their cats) and had taken her there for the appointments. He had also gone to his storage unit to get a dog cage although it was not used. The complainant did not drive. I do not accept the submissions of counsel for the accused that this shows the complainant to be lying but once again it does demonstrate that her interactions with the accused were significant and she relied on him for assistance from time to time.
[49] There is no obvious point in lying about the number or the dates of the vet appointments. Whether or not there was an earlier appointment or whether the second appointment was on the 8th or the 9th can be objectively determined. In any event unlike the discrepancies in the evidence of the accused, they were readily acknowledged by the complainant when she was told what the records would show and the mix up in dates can be readily explained without undermining her narrative. The confusion about dates may give rise to concern about the accuracy of the unaided recollection of the complainant concerning dates and times but it does not lead me to the conclusion that she is being untruthful. Unless they significantly erode her credibility, these are discrepancies on which very little turns. They do not undermine the important points in her evidence.
[50] The dog also figures prominently into the narrative on the night they went to the cottage. The dog was in the back seat with the complainant. According to her evidence she does not drive and had not often been out of Ottawa. She did not at first realize that the accused was not heading in the direction of Kingston but eventually she realized he had not stopped for his wife and they had been driving too long. The complainant testified that she became more and more worried. She asked the accused where they were going and he told her the cottage was a bit further than Kingston. She asked about his wife and he told her she was not coming after all. During this time the dog became car sick and vomited on the back seat of the vehicle. The vomit on the seat was still there the next day when the vehicle was involved in the single car accident and it is readily visible in the photographs taken by the police.
[51] The complainant testified that eventually the car stopped in the dark in the forest in an unknown location. The accused then entered the cottage and turned on the lights. Although there was another cottage nearby, it was in darkness. The complainant had no idea where they were and remained extremely worried that they would not get back to Ottawa in time for the vet. She then discovered that her cell phone was not working. Inside the cottage she states that the accused began acting very strangely alternately ignoring her, trying to show affection and then berating her for “taking him for a ride”, “taking him for granted” or treating him like “riff raff”.
[52] She gave detailed evidence of a long scary and confusing night. I need not list that evidence in detail. At one point she stated the accused began crawling on the floor and antagonising the dog which was becoming very upset. It was at this point where according to her testimony, the accused told her he was not afraid of the dog. He told her he was going to rip out the dog’s tongue and take it outside and beat it to death with a shovel. It is her evidence that she was terrified and traumatized by this threat which was so graphic that she felt sure he might carry through with it. At one point she testified he said to her “fucking bitch, I will show you what I am capable of” and at another “I will show you what kind of man I am”.
[53] She testified that at one point the accused grabbed her face and her hair and tried to kiss her, lick her face and touch her. When she asked him to stop he got angry and went into the bedroom. Eventually he told her to come into the bedroom and told her he wanted to give her a back massage. She testified that she did not want to go but he promised to take her home if she did and all she could think about was how she was going to get out of there without either she or the dog being injured. She did not know what he was capable of and she was alone in the forest in an unknown location. She testified that the accused eventually compelled her to perform oral sex, that he then had intercourse or attempted intercourse and although she kept asking him to stop, she eventually gave up and just hoped it would be over.
[54] Counsel for the accused challenged this narrative. He questioned why the complainant would not have called or texted someone from the car to tell them where she was and ask for help or at least to say what was happening. He put to her the suggestion eventually made by the accused when he testified that in fact she knew her father was in Belleville and had asked to go to the cottage so that she could visit her father. He asked why she did not call for help from the cottage when the accused started acting in a threatening manner.
[55] There are several responses to this. Firstly the complainant testified that although she had increasing misgivings and was becoming very concerned as to where they were going, she did not want to think badly of the accused and wanted to believe him. Secondly she testified that she was not sure who she would have texted from the car. Thirdly she testified that by the time they got to the cottage her cell phone had died and by the time she realized she was in a very bad situation she was worried if she plugged it in then the accused would take it from her. I should add that it was the evidence of the accused that he could not get cell phone service at the cottage so whether or not she could have used her phone is unknown. In any event, I am asked to consider the failure of the complainant to make any attempt to use her phone or otherwise reach out for help as a reason to doubt her version of events.
[56] Similarly the morning after the alleged sexual assault, the accused took the complainant to the gas station where there was a convenience store. She made no attempt to escape from the vehicle or to call for help. There may well have been a pay phone at the gas station and certainly there was a store clerk or gas station attendant. There were other businesses in the area as well.
[57] The complainant gave evidence on this point. It was her evidence that after the accused had compelled her to have sex with him, she desperately wanted to get away from him and back to Ottawa. In the morning he took her to the store to get food. He said in his evidence that this was to get sardines for the dog but it was her evidence it was to get eggs and bacon and cigarettes. In fact it was her evidence he went back to the store a second time to get the cigarettes. She testified that both times she thought about running or trying to get help but she was too scared. She was not just scared about what he might do but she was also hampered by the fact that all of her belongings, her purse, her phone and her extra clothes were at the cottage as was the dog’s leash. If she tried to get out of the vehicle and run, she was not sure how she was going to deal with the dog. She said she had two chances to get away but she waited too long.
[58] Considerable attention was spent on the question of whether she knew in advance that her father was in Belleville but the evidence on this point is not conclusive. The only reason this is relevant is because the accused testified that one of the reasons the complainant wanted to go to the cottage was because it was near Belleville and she wanted to see her father. The significance of the point is that if she knew her father was in Belleville and is now lying about that it might support the accused’s version of events rather than her own.
[59] It was Rita’s testimony that she only found out her father was in Belleville after she contacted her grandmother from the Belleville hospital and that her father subsequently came to see her. When the grandmother testified she indicated that she had probably told the complainant that her father would be “in rehab” before the event but when she testified at the trial, the grandmother could not remember if he was in rehab in Kingston or in Belleville at the time. The evidence of the grandmother does not demonstrate with any certainty that the complainant knew in advance her father would be in Belleville. At best it confirms the possibility.
[60] Her father also testified. He said he probably would have told his daughter he was going to be in Belleville but he also testified they usually spoke more than once per day and that is simply wrong. It is completely at odds with the manner in which the complainant had interacted with her parents since the age of 13. In any event he cannot say with certainty that they had spoken about this in advance of her going to the cottage.
[61] I accept the complainant’s evidence that her usual contact in the family was her grandmother. While it is true that Bancroft is in Hastings County – and hence why the trial was in Belleville – the idea that Bancroft is close to Belleville or that she would expect to go to Belleville on the way back to Ottawa does not fit with the evidence. Belleville is 1.5 hours’ drive south of Bancroft and in a completely different direction from Ottawa. She was worried about getting back to Ottawa in time to get to the vet. It would not have made sense to travel to Ottawa via Belleville even if she actually knew where the cottage was.
[62] The final and potentially the most significant issue with the complainant’s evidence is the fact that immediately the accident she was asked by people in authority if she was in trouble or had been sexually assaulted and she denied it. She denied it more than once and missed several opportunities to report the matter. She only ultimately disclosed it to the police in March of the following year, almost six months after the night at the cottage.
[63] After the accident the terrified dog ran down the road and into the forest. The complainant got out through the sunroof and ran down the road in bare feet trying to find the dog and to find help. Eventually she found a house and banged on the door. She told the occupants that she had been in an accident and could not find her dog and she was worried about her “friend” by whom she meant the accused. She had seen him moving in the vehicle but did not know if he was hurt. She herself had sustained a cut on her arm and had been tossed around. She did not tell the homeowners she was afraid of the accused. Her evidence on this point was that at the time she was genuinely concerned that he might be seriously injured.
[64] When she returned to the accident site after the homeowners called 911, police and ambulance attended at the scene but the accused was nowhere to be found. Eventually the police found him where he had walked to the gas station but they reported that he initially denied there was anyone else in the vehicle with him. He later admitted to the police that this was a lie.
[65] During her examination by the paramedics, the complainant was asked if she had been sexually abused and she told them no. She readily admitted this in court. Following the accident, she was taken to the Bancroft Hospital and then sent to the Belleville Hospital for further tests. While she was in Belleville, the accused apparently came to the Bancroft Hospital with her personal effects and offered to bring them to her. At that time she told the nurse she did not want to see him and he should leave her stuff at the hospital. He declined to do so but the nurse who was with the complainant was concerned and asked her again about sexual abuse. Again she denied it.
[66] She only reported the alleged sexual assault after she returned to Ottawa and the accused kept trying to contact her. It is her evidence that when she eventually got back to Ottawa with the help of the Red Cross and social services in Belleville she had no purse and no keys. She had to stay with Tina until she could get her landlord to let her into the apartment. At that time she discovered that the accused had entered the apartment and left her purse and the dog leash in the kitchen but according to her evidence he had kept her phone, her cash and her keys.
[67] There were several incidents in which the accused tried to contact her and she reported it to the police. She reported the unauthorized entry into her apartment on October 14th. There was the occasion when he slipped the papers under the door and another occasion when he attempted to enter her apartment using her key. She was able to get the landlord to change the lock but he came again in November and kept ringing the buzzer. She reported this to the police on November 5th, 2014. In February of 2015 when she was at a neighbour’s apartment she heard him in the hallway calling her name despite the fact that the police had apparently cautioned him to leave her alone. On this occasion her neighbour confronted the accused and he left. It is her evidence that after the February incident she was advised by the police that she would have to apply to a Justice of the Peace for a Peace Bond in order for the police to take any action. It was only then, in March of 2015 while being interviewed by a student in the Crown Attorney’s office that she disclosed the non-consensual sex. This in turn triggered an investigation by the Ottawa Police Service and the Bancroft OPP leading to the charges now before the court. The accused was eventually arrested in August of 2015.
[68] The complainant acknowledged that she only reported the sexual assault 5 months after the event and did not do so on any of the earlier occasions when she could have done so. In particular she had several opportunities to report the sexual assault immediately following the car accident and during her interactions with the police in Bancroft and in Ottawa. Not only did she fail to report it, on at least two occasions she was asked if something else had happened besides the accident and she denied it.
[69] The complainant explained this in cross examination. She admitted she had not disclosed the matter and told counsel that quite frankly she had no intention of doing so at the time. She testified that this was not the first time that she had been sexually abused and that she had previously simply kept it to herself. She testified that at the time she did not view the police as trustworthy and that her family had always had an adversarial relationship with the police. She was also afraid of the accused and what he might do as he had told her to “keep a code of silence”. She testified that if he had just left her alone she likely would simply have kept it a secret and tried to move on but when he began to stalk her and harass her and when he slipped the bizarre note and information about her family under her door she went to the police. She said she had never wanted to be involved in a criminal trial but once she had made the disclosure to the Crown’s office it became a police matter.
[70] This has a ring of truth to it as for example in the following exchange between Mr. Easton and the complainant during her cross examination.
Q. You had a conversation with both paramedics? A. Yup … and it was the male paramedic that was like did you guys do anything .. did he do anything to you? Q. You said no. A. Yeah I did. Yeah I did because the person I was at that time I was used to keeping my mouth shut about things due to what other people wanted me to ... due to what they might say or think about me if I go and say yeah this person did this to me. Q. But you didn’t just shut your mouth. You lied and said no it didn’t happen at all. And you said nothing like that happened? A. I said no. You’re right. Q. A prime opportunity to report the incident and you don’t tell her what happened and .. ? A. To be honest I didn’t have any intention of telling anyone anybody about it. That’s why I stayed quiet for so long. It was just another thing that happened to me .. that I suffered through and I was willing to keep my mouth quiet about it and live my life.
[71] Given the complainant’s background and lifestyle this is entirely plausible. Much has been written about the prevalence of unreported sexual assault in Canada and while no evidence was called on this point, I am well aware that not every victim of unwanted sex elects to proceed through the criminal justice system. In fact many of the amendments to the Criminal Code have this as their justification. Parliament has intended to reduce disincentives to reporting of sexual offences. Late reporting cannot be used to infer that the offence did not take place. Nor, under the circumstances, am I prepared to conclude that the denials to the professionals who posed the questions prove that the events were fabricated later on.
[72] In summary I find the explanation for most of the discrepancies in the complainant’s evidence are convincing. In general she appeared forthright in her evidence and held up well under cross examination despite the best efforts of Mr. Easton. The relationship between the complainant and the accused was clearly more than a casual acquaintance because she relied on him for assistance on several occasions including arranging to see the vet. She downplayed this relationship but I do not find that this significantly affected her credibility and I accept her evidence on the material points.
The Evidence of the Other Witnesses
[73] One of the paramedics, one of the nurses and the officer who investigated the automobile accident were called to testify. Their evidence would not be probative by itself but it generally either conforms to the evidence of the complainant or is not inconsistent with it.
[74] Antonia McFadden is a paramedic who attended at the scene. She confirmed that when she arrived on the scene they found the complainant walking in the ditch looking for her dog. She alluded to the fact that there was someone else in the vehicle who she referred to as her friend and she appeared very distressed about the missing dog. She also confirmed that the complainant had neck pain and an injury to her arm and that she was fitted with a cervical collar. On being told that the driver had been found and was denying she was in the vehicle, Ms. McFadden stated that the complainant became very agitated. She could not give much information about the driver other than that he was an older gentleman and the complainant was very vague about how they got to Bancroft from Ottawa. Ms. McFadden testified that the circumstances were very odd and it seemed there was something going on other than the accident. This led her to pose questions about whether she was there voluntarily and about sexual abuse but the complainant did not say anything to confirm those concerns. She does not remember if she said she was there voluntarily but seemed unusually agitated. The complainant was eventually sent to the Bancroft Hospital.
[75] Constable Gary Lewis testified that he was a provincial constable stationed in Bancroft. He was called to the scene of the accident. There was one other police vehicle and an ambulance when he arrived. He was advised that a male person had left the scene and was at the Esso station sitting in a tow truck. He arrested him on suspicion of leaving the scene of an accident and searched him incidental to the arrest. The accused initially denied having a passenger and stated that the girl with the dog was walking at the side of the road. Later after discussions with the other officers, the accused recanted this story and advised that the girl and the dog were in his vehicle. He was charged with careless driving and given a ride to his brother’s cottage.
[76] Constable Lewis testified that he interviewed the complainant at the Bancroft Hospital. She mentioned the lost dog and was concerned that it might be aggressive. She did not report any sexual assault or being afraid of the accused.
[77] Melody Priestly testified that she is a nurse employed by Quinte Health Care at the Bancroft site and was on duty the night of the accident. She knew that Rita had been sent to Belleville and was looking for her belongings. Two men including the accused came to the hospital in Bancroft and said they had her stuff. When she contacted Rita at the Belleville hospital she became very upset and was crying. Rita advised that she wanted her belongings left in Bancroft at the hospital but did not want to see the accused. When the accused was informed of this he at first refused to leave the belongings and then said he could not do so in any event because he did not have them with him. Then he left.
[78] Sometime later, Ms. Priestly had a discussion with Rita’s father who was at the hospital in Belleville. He told her Rita was in pain, had no clothes and no belongings but had been discharged by the hospital in Belleville. As a consequence Ms. Priestly called the Belleville charge nurse to try to assist her. She indicated that the situation was very unusual because the complainant did not want to see the accused and was very upset. It was also unusual because the accused refused to leave the belongings at the hospital. She testified that this had caused her to make detailed notes but unfortunately she did not bring them to court.
[79] Josie Hilts testified. She lives on the road where the accident occurred. In the early morning of October 8th, 2014 she answered the door to a girl with an injured hand and no shoes. The girl said she was worried about her friend and her dog and had been in an accident. Ms. Hilts went next door to her father’s house and called 911. They drove to the accident site where the car was deserted and upside down in a swamp. There was no friend and no dog. The girl was very upset and was pacing around. She was extremely shaky. An ambulance arrived soon after. Later she got a call from the hospital to see if she knew anything about the girl’s purse. The girl never said anything about being in fear of her friend and seemed concerned that he might be injured.
[80] Rachael Burgeon is a veterinary technician in Ottawa. She confirmed that there was an appointment for the complainant’s dog at 4:30 on October 9th but it was a “no show” which means that no one showed up and the appointment had not been cancelled. She confirmed that there had been a previous visit to the vet on September 12th, 2014 at which time Rita was given some information about her dog, advised that a muzzle would be necessary and the appointment for October 9th was booked.
[81] Ms. Burgeon also confirmed that she spoke to Rita at least twice after the missed appointment. She recalls that she was upset about her dog and that she was in some kind of trouble as a result of the accident. She recalls that the complainant was disturbed to find out that the accused’s wife was shown as a co-owner of the dog in the clinic’s records and that she insisted on having that changed. She also recalls that Rita was adamant that no information was to be given to the accused or his wife about the dog and she had a very bad experience. She recalls that they gave Rita some advice as to how to get the dog back from Bancroft if and when it was found and that the dog was home by the 21st of October.
[82] Rita’s father and her grandmother testified by video from a court room in Cornwall. I have described their evidence above. Rita’s father admitted a lengthy criminal record and was fairly belligerent in giving evidence. Nevertheless he confirmed that he saw Rita at the hospital in Belleville having gone there for a 21 day rehab program. He testified that Rita was very upset and did not want to see the accused and he formed the impression that something more had occurred. When he pressed Rita he was just told that the accused had not been very nice to her and had driven recklessly and injured her. Rita’s father felt the accused should be kept away from her.
[83] Rita’s grandmother testified that she had contacted Rita’s Dad to tell him Rita was in hospital and had spoken to Rita in the hospital. The grandmother received a call from someone identifying himself as the accused. He was calling from Rita’s telephone and said he was in Rita’s apartment. She told him to leave her stuff in the apartment and to leave as he should not be there.
[84] Her former neighbour testified. He confirmed that he had heard a man in the hallway calling the complainant’s name when she was visiting his apartment. He stated that the complainant turned white and started shaking and that he had gone into the hallway. He had spoken to the accused and told him that if he was who he thought he was, he should not be there. He indicated that the accused eventually left and that he had felt the demeanour of the accused was threatening but he testified the accused had not made any overtly threatening comment only saying that he wanted to speak to Rita.
[85] Detective Constable Dano testified. He was the investigating officer for the charges in question. He confirmed that he had interviewed the accused who had given a statement that was recorded. Extracts from that interview were played in court primarily to challenge the accused with inconsistencies between his statement to the police and his subsequent testimony on the voir dire or during the trial. The main purpose of Const. Dano’s testimony on this point was simply to identify the recording and the circumstances under which it was made.
[86] As a result of the information provided to him, Const. Dano obtained the motel records from two motels identified by the accused as places he had frequented with Rita. I have addressed this above. He also obtained cell phone records showing the cell towers utilized by Rita’s phone in the days following the accident and the communication received and sent from the phone. This information was displayed graphically on a map of the City of Ottawa showing the location of the motels and of the residences of the accused and the complainant. I have addressed this evidence above.
[87] He identified the documents which were in evidence as copies of the documents the accused admitted slipping under Rita’s door. They had been provided to him by the Ottawa Police.
[88] He indicated the individuals he had contacted during the investigation and two he had been unable to speak with. “Tina” was one of these. She had received calls or made calls to Rita’s phone during the time in question but she refused to speak with him and was angry that her number had been given to the police.
[89] He had tried to interview the wife of the accused but found she was in a long term care facility and incompetent. Her affairs are apparently managed by the Public Guardian and Trustee.
[90] He indicated that he was unable to find useful surveillance tapes from the Bancroft Esso station. He indicated he had attended at the cottage but had been refused entry by the brother of the accused. There is no DNA evidence.
Findings of Fact Relevant to Each Count
[91] Count number one is a charge of common assault. Although the offence itself is created by Section 266 of the Code, the elements of the offence are set out in Section 265. A person commits assault when he directly or indirectly applies force to another person without that person’s consent or when he attempts or threatens to do so.
[92] I find that the accused grabbed and pinched the face of the complainant at the cottage and pulled her hair without her consent. This meets the definition and he is therefore guilty of assault.
[93] Count number two was a charge of uttering threats contrary to Section 264.1 (1) of the Code. The elements of that offence are made out if it is shown that a person in any manner knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person, to burn destroy or damage real or personal property, or to kill, poison, or injure an animal or bird that is the property of any person.
[94] As I accept the evidence that the accused threatened to rip out the dog’s tongue and to bludgeon it to death with a shovel, the elements of this offence were also present and there will be a finding of guilt on count number 2.
[95] Count number three is the charge of Sexual Assault contrary to s. 271 of the Code. To be guilty of Sexual Assault, the accused must be found guilty of an assault within any of the definitions in Section 265 (1) in circumstances of a sexual nature in which the sexual integrity of the victim is violated. There is no doubt that non-consensual penetration or attempted penetration meets this definition as does non-consensual oral sex or unwanted non-consensual touching for a sexual purpose. Section 273.1 of the Code defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. No consent is present where the complainant expresses by words or conduct a lack of agreement to the sexual activity or a lack of agreement to continue with the sexual activity. Moreover consent is not present if a complainant simply submits or fails to resist because of the application of force or fear of the application of force or by the exercise of coercive authority.
[96] As it is admitted that there was sexual activity and the accused does not rely on reasonable belief, the elements of this offence are readily made out if I accept the evidence that the complainant repeatedly asked the accused to stop. I do accept that evidence and that would be sufficient for a conviction but I also accept the evidence that the complainant was in fear of the accused at the time in question and I find that he was in a position of coercive authority because he had her in an isolated location cut off from contact and dependent upon him to get home. There was no consent. The accused will be convicted on count three.
[97] Count four is a charge of criminal harassment contrary to Section 264 (2) of the Code. Unlike the other charges this offence was committed in Ottawa and arises from the repeated attendance by the accused at the residence of the complainant as well as his delivery to her of the papers he slid under her door.
[98] It is conceded by the complainant and by the other witness (the neighbour) that there was no overt threat made by the accused. That is not necessary. The offence is defined as engaging in specified conduct without lawful authority knowing that another person is harassed or reckless as to whether they are harassed in circumstances which cause the other person to reasonably fear for their safety or the safety of anyone known to them. The prohibited conduct includes following the person, repeated direct or indirect communication, besetting or watching their dwelling house or place where the person works or resides or happens to be or engaging in threatening conduct directed at the person or a member of the person’s family.
[99] I find that the accused continued to attend at the complainant’s apartment even though he was well aware she did not wish him to do so. He came at odd hours and on at least one occasion, he attempted to enter the apartment using her keys. He retained a key to the street entrance to the building so that he could let himself in to the hallway even after she changed the locks. In addition he slid the papers under her door which are referred to above. I am satisfied on the evidence that the purpose of those documents was to intimidate the complainant.
[100] The accused knew or should have known that the complainant would feel harassed by his continued attendance at her residence. He knew that the papers warning her she had bitten of more than she could chew along with his demonstration that he could find information on her family members would be intimidating. Even if these events are viewed in isolation, the elements of the offence are made out but when they are viewed as an aftermath to the assault at the cottage and the warning to “keep a code of silence” there is no doubt that the accused not only knew the complainant would feel harassed, that was his intention.
Conclusion
[101] In conclusion I am finding the accused guilty as charged on each of the four counts before the court.
[102] Although these charges arise from the same sequence of events, they do not succumb to a Kienapple analysis. [^10] The assault in the living room of the cottage was a separate assault from the sexual assault in the bedroom. The threat to kill the dog was part of the sequence of events leading up to the sexual assault but it is a distinct offence. The harassment which took place in Ottawa may have been motivated by the events at the cottage but it stands on its own.
[103] I will hear from counsel regarding the utility of a pre-sentence report as well as any other matters that need to be addressed before the court proceeds with sentencing.
Mr. Justice Calum MacLeod Date: July 5th, 2017
[^1]: Not her real name. The identity of the victim is subject to a publication ban under s. 486.4 of the Criminal Code. [^2]: Criminal Code, RSC 1985, c. C-46 as amended, s. 276 (1) [^3]: Criminal Code, Sections 276 (2) and (3) [^4]: See R. v. N.K., 2017 ONSC 3482 [^5]: Counsel for the accused was content with this method of proceeding. [^6]: Section 11 (d), Canadian Charter of Rights and Freedoms [^7]: R. v. W. (D.) [1991] 1 SCR 742 @ p. 758 [^8]: In October of 2014 the sexual assault had not yet been reported to the police and the accused was driving a rental vehicle. To fabricate this evidence would have required someone to know that possession of the cell phone would some day be investigated by the police and to have known the location of the accused at the relevant times. [^9]: Not her real name. [^10]: R. v. Kienapple [1975] 1 S.C.R. 729 establishes that an accused cannot be convicted of multiple overlapping offences arising from substantially the same acts. In Kienapple the accused had been convicted of both rape and unlawful sexual intercourse with a person under the age of 14 for the same act.