CITATION: R. v. F, 2017 ONSC 5265
COURT FILE NO.: CR-39700-16-77
DATE: 20170925
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.F.
Defendant
Aquilas Kapend and Isabel Blanchard, counsel for the Crown
Neha Chugh, counsel for the Defendant
HEARD: March 27,28, 29,30, 2017 May 2 , 2017 June 6, 2017 August 15, 17, 2017
REASONS FOR JUDGMENT
Laliberté, j.
Introduction
[1] The accused person, J.F. is charged with the following 5 counts under the Criminal Code:
− Sexual assault ( s. 271)
− Assault (s. 266)
− Sexual Assault using a weapon (s. 272(1)(a))
− Theft ( s.334(b))
− Sexual Assault causing bodily harm (s.272(1)(c))
[2] The complainant is M.W. who resided in K[…] at the relevant time. She alleges that the said offences occurred in the accused’s home in Cornwall while she was visiting him from June 30, 2015 to July 5, 2015.
[3] The accused testified in his defence and denied the allegations.
[4] Properly articulated, the issue for the Court is whether the Crown has established each of the essential elements of the offences beyond a reasonable doubt.
[5] The Court’s judgment is structured as follows:
- A review of the evidence
- The position of the parties
- The identification of the relevant legal principles
- A discussion of the Court`s findings
- The verdicts
EVIDENCE
[6] The following witnesses were called by the Crown:
− ASAP. nurse Serena Menard
− Complainant M.W.
− Forensic biologist Dr. Warren T. Claxton
− Constable Jason Mines
− Constable Nygel Pelletier
− Constable Patrick Depratto
− Dr. Rami Shoucri
− Constable Patrick Huygen
− Identification officer Constable Carole Lalonde
− Constable Daniel Merpaw
− Constable Larry Frappier
− Constable Sarah Van Den Oetelaar
− Sergeant Daniel Doyon
[7] The accused person, J.F. testified in this trial.
[8] The witnesses provided the Court with the following evidence:
Serena Menard
[9] Witness Serena Menard is a registered nurse at the Cornwall Community Hospital and for the last 4 years, her duties include the Assault and Sexual Abuse Program (ASAP). As such, she deals with alleged victims of sexual and physical violence.
[10] On July 5, 2015, she cared for the complainant who had attended the hospital in regards to alleged physical and sexual violence against her.
[11] Exhibits #2 and #3 are medical records setting out the witness’s observations, findings and information conveyed to her by the complainant.
[12] These records disclose bruises and marks on the complainant’s body. There were no visible injuries noted to the external vaginal area. There was no bleeding, The complainant had declined an internal examination of her vagina by means of a speculum. She only agreed to an external examination.
[13] The records state that the complainant did not have pubic hair. The witness does not recall whether this finding was based on her observations or information received from the complainant.
[14] The complainant told her she had consumed alcohol but did not mention the taking of drugs.
[15] The witness notes that the complainant had agreed to be tested for all but one sexually transmitted infection, namely trichomonas.
[16] In cross-examination, she agrees with counsel’s suggestion that symptoms of trichomonas include frequent urination, vaginal pain and discharge.
M.W.
[17] The complainant M.W. was 48 years old at the time of the trial. She is indigenous and a member of First Nation Cree. She has resided all of her life in northern Ontario in the reserve community of K[...].
[18] She came to Cornwall and stayed at Nav Can in May 2015 as part of an evacuation due to flooding in her region. This is when she met the accused in a bar in Cornwall. She and her sister went to his apartment where they slept. They returned to Nav Can the following morning.
[19] The accused came looking for her at Nav Can the next day. They sat around and talked. They exchanged Facebook messenger so as to keep in touch. She left Cornwall 2 days later.
[20] They kept in touch through Facebook once she got home.
[21] She returned to Cornwall to visit the accused 2 weeks later. She stayed for 3 days. She describes the status of their relationship as “dating”.
[22] She returned home for a while and notes that they were having problems communicating through Facebook. She returned to visit the accused one last time which is when the alleged offences would have been committed by the accused.
[23] She arrived in Cornwall on June 30, 2015 for this final visit. This is confirmed by Exhibit #4 which is a bus ticket dated on such date.
[24] She had got to the accused’s home late at around 12:30 a.m. because the taxi driver had taken a longer route.
[25] She is not sure of how long she stayed for during this visit but she believes it was for a week. She states that everything happened during this last visit.
[26] The Court notes that the complainant became extremely emotional and unresponsive when asked by Crown Counsel to describe what had happened with the accused.
[27] The witness describes how she had gone to the mall and that all she wanted was to go home but this older lady who saw her crying told her to call the police. She describes that she was washing her clothes and the accused wanted her out. Ultimately, the police were called, saw bruises and convinced her to go to the hospital.
[28] The Court was then asked by Crown counsel to allow the complainant to testify outside the courtroom through a video link under section 486.2 of the Criminal Code. Leave was granted for the reasons articulated on the record. The examination then resumed following this ruling.
[29] In essence, the complainant alleges that she was subjected to physical and sexual violence by the accused from June 30, 2015 to July 5, 2015.
[30] Specifically, she alleges the following:
− He would have introduced his fist inside her vagina on 2 separate occasions resulting in significant pain, bleeding and urinary incontinence
− He would have stolen $45 from her
− He would have physically assaulted her resulting in bruises, bite marks and severe headaches
− He would have shaved her pubic hair using electric clippers while she was asleep
[31] Her description of these alleged events can be summarized as follows:
Introduction of his fist in her vagina
[32] The first such incident would have occurred soon after her arrival on June 30, 2015:
− She arrived at 1:00 a.m. because the taxi driver had taken a wrong turn
− They went to his apartment where they drank rum and beer; they also smoked weed, they sat around
− She was tired and went to lay on his bed at 4:00 a.m.
− He came to cuddle next to her; they kissed; he placed his finger in her vagina; he wouldn’t let her touch him; he pushed her hand away
− He ultimately placed his fist in her vagina:
• He introduced 2 fingers
• This was followed by the introduction of all of his fingers
• He placed all of his fingers in a “cobra head“ position
• His entire fist up to his wrist was then inside her vagina
− He was breathing stronger when he placed his fingers inside her vagina
− She felt pressure on her cervix as if she was labouring
− She pushed him with both hands when his hand became a fist inside of her
− This made her bleed; he had blood on his hand and he stated “oh shit”; he then went to the washroom to wash his hand
− Blood was coming out of her
− She got dressed and went to the washroom
− She felt as if this was “rough sex” and “kinky”
− The accused didn’t say anything as this was happening; he hadn’t spoken to her about wanting to do this; he never asked permission to do this
− On Canada day, he asked her if she was still bleeding and she told him a little bit; he wanted to have sex but she didn’t feel like it
− She used toilet paper and had gotten pads after the first incident
[33] The second incident of fisting would have occurred 2 days later on July 2. She describes the event as follows:
− She went to lay on the bed in the evening; he joined her and started to touch her; she was wearing pyjama bottoms and a muscle shirt; he pulled down her pyjamas and panties; she helped him to do so; he removed her bra
− He played with and bit her breasts; he was acting as if he was really “ horny”; he was kind of rough when he placed his fingers inside of her
− She pushed him off and said “ ouch” when he was touching her breasts; he was too aggressive
− She describes the introduction of his fist in her vagina as follows:
• She felt pressure inside
• It was different than the first time
• He was moving his fingers inside her vagina as if he was “ fluffing” them
• She felt a “ cobra head” inside of her; he was moving inside; there was a back and forth movement
• She then felt his fist and he kept pushing in her
• She pushed him on his shoulders to get him off; her back was to the wall
• She told him to stop but he continued ; she was pushing his shoulders and he finally got off
• She felt his hand come out as if a big cloth had come out of her vagina
• She felt severe pain as if she was giving birth; she rates the pain as an 8 or 9 on a scale of 1 to 10
− She was bleeding more than the first time; blood was dripping and gushing; there was lots of blood; she continued to bleed for a day and a half and it slowly went away; there was just a bit of “spots” when she met with the ASAP nurse on July 5, 2015
− Following the incident, she cleaned up and went to bed; she “peed” on the bed the following morning; she felt embarrassed and tried to hide it; the accused would have flipped the mattress over
[34] The complainant testified that she started to have urinary incontinence following these incidents. She describes urinating on herself on July 5, 2015 while on the bus to North Bay. This issue continued once she returned home. She couldn’t hold back her urine. It was always dripping.
[35] She states having met a nurse and Dr. Shoucri about this. She would have provided the doctor with all of the details of what the accused had done to her. He asked her if she had told him to stop and whether she had told the police.
[36] Her evidence is that she had no bladder issue prior to these fistings by the accused.
Theft and physical violence
[37] These incidents would have taken place on July 3, 2015.
[38] She explains that she wasn’t herself that day, she was still bleeding. They both drank alcohol. She drank Sour Puss and Captain Morgan. The accused drank beer. They also smoked marihuana.
[39] She was drinking heavily by reason of the pain.
[40] The complainant states that the accused stole $45 from her and describes the theft as follows:
− He asked her for money and she told him that she only had $45 on her and needed this money to go back home
− She placed the money in the left pocket of her pants
− She did not want to give it to him
− She was sitting on a chair next to the wall when he came to close to her; he pulled the money out of her pocket and left the apartment; she tried to grab him
− After he left, she continued to drink and sat at the table; she didn’t move and eventually fell asleep with her head on the table
[41] The complainant alleges that the physical assault occurred once the accused returned home. She describes the incident as follows:
− She was still sleeping with her head on the table; she was awakened by the door being slammed open
− The accused came in upset and telling her she had locked the door; he was asking why she had done this and not opened the door; he told her he had to kick the door open
− He grabbed her with his 2 hands on the side of her head near her jaw and pulled her up; she came out of her seat when pulled up
− He let her go at that point and he showed her the damage to the door while telling her “ look what you made me do”; she was trying to tell him she hadn’t done anything and that she had just been sitting at the table
− She states that this is when the “ rumble” started:
• He grabbed her by the shoulders and pushed her on the floor
• He slammed her head on the floor and then punched her on the right side of her forehead
• She was on the floor, feeling scared and covering her face with her arms which were crossed to protect herself
• He grabbed her left arm and bit the inside of her upper left arm; she was still on the floor when he bit her
• He was telling her how she deserved this; she couldn’t understand why he was doing this since she had done nothing
• After the bite, things went quiet for a while; she sat on the floor and didn’t talk; she crawled on the bed
• He was still mad but she didn’t answer
• He threw beer bottles on the wall behind her while she was on the bed; she was all wet from the beer
• She notes that a small table was broken; she doesn’t know if she hit him; she doesn’t know if she smashed this table on him as suggested by him the following day
− She wanted to go to the hospital the following day but he refused; he told her he would go straight to jail if people saw the bruises on her
− Her head was hurting for 2 days; she was just falling asleep
− She identifies the bruises shown on the photo Exhibits as reflective of her injuries and as having been caused by the accused; she had no such bruises prior to this incident
− She acknowledges that she made a mistake when she stated that he struck her on the right side of her forehead when shown a photograph of her forehead with a bruise on the left side
− It is also noted that she stated that he bit her on the left arm and that the photo exhibit shows a bite mark on the right arm
Shaving of her pubic hair
[42] The complainant had testified that she had changed her clothing after the throwing of the beer bottles on the wall because she was all wet.
[43] She then went to bed as she wasn’t feeling good. He was sitting across playing on his I-Pad. She felt him coming to bed. They were back to back.
[44] She states that she forgot to mention one more thing about the “pubic part where he shaved me that night”.
[45] Her evidence is that the shaving of the pubic hair incident occurred after the violence and the throwing of the beer bottles.
[46] She testifies that she was drinking and drinking as she wanted to make herself numb. She was passed out. She provides the following details:
− she wasn’t in the right position when she woke up; she was lower on the bed.
− the accused was sitting and playing with his I-Pad
− she felt different down there when she woke up
− he had a grin on his face; he was smiling; he asked her “ do you notice anything” she asked him what and states “ did you check yourself down there”
− he told her that he had shaved her while she was asleep
− she put her hand in her pants and realized she had no pubic hair
− she stood there and asked him why he had done this; he laughed and said he was bored
− he told her he had used a black electric trimmer which he showed to her
− he also told her that he had picked up the hair using a vacuum cleaner; he stated that this was the fun part; she notes that there was no hair around
− she had seen this trimmer before in the apartment in a white cupboard but had never used it
− she notes that the vacuum was in the room that night
[47] She describes herself as being in a mess at that point. She didn’t know how to deal with this and drank what little was left of the Sour Puss.
[48] She went to lay back on the bed. Her head was hurting. That’s all she did for the next 2 days.
[49] He stayed in the room with her for these 2 days. She was still feeling sleepy on the Saturday. They went to the liquor store and she purchased 2 bottles of liquor which she never drank. She had covered her bruises with make-up before going to the store.
[50] They both got up early on Sunday morning. They sat around but did not talk. Her bus was leaving at 1:00 p.m. that day.
[51] She went downstairs to the laundry room. They started to argue when she returned to his room. She doesn’t recall why they argued. He told her to go and wait “out there”.
[52] She got mad, grabbed the 2 bottles of liquor she had purchased and went to the laundry room to finish her laundry.
[53] He followed her and forced her to leave the building. She placed her wet clothing in a bag and left for the shopping mall where the accused showed up some 20 minutes later. He had a metal container and was telling her to pour some of the liquor she had left with in this container. She refused to do so and he left. He was being mean to her and stated that all he wanted was the liquor and not her.
[54] Earlier in her evidence, the complainant had explained that an older lady came to her at the mall and told her to call the police. She felt lost and didn’t know where to go.
[55] She had gone to the mall at 8:00 a.m. and her bus was leaving at 1:00 p.m.
[56] She called the police to report the domestic violence. The police picked her up and brought her to the station where she gave a statement. All she wanted was to go home. The police had seen the bruises and convinced her to go to the hospital.
[57] She had also earlier confirmed not having disclosed the alleged fistings to the police on July 5, 2015. She stated that she wasn’t herself. She didn’t know who to trust. The accused had told her that he had lots of family and she feared that his sister may have worked at the hospital.
[58] Nor had she reported this to the police back home because the police are not doing their job in her community. She didn’t want to tell people about his. Her family and daughter don’t know about her private parts.
[59] She only disclosed the domestic violence when she spoke to the police in July 2015. She did not mention the “hand thing”. She was afraid and alone. She didn’t want to tell anyone until she started to have problems back home. She started to have bladder problems. She states having gone to a Mental Health Unit for 10 days in Timmins. She couldn’t talk to her family about this. She didn’t have any help. She can’t even talk about it.
[60] The Court notes the following points raised during the complainant’s cross-examination:
− She admits having consumed speed and marihuana while in Cornwall; she denies having purchased a significant amount of speed for resale in her community; her friend had told her where to go in Cornwall to buy drugs and she went with the accused; she confirms not having mentioned the speed to the police in her July 5, 2015 statement, to the ASAP nurse nor when she testified at the October 2016 preliminary inquiry
− She agrees that she is generally confused in regards to her travel itinerary to Cornwall; she had provided the police with a significantly different itinerary
− She is confronted with her testimony at the preliminary inquiry suggesting that she had “ just stayed there” and “ never went anywhere” after the first fisting incident; her trial evidence is that she went shopping and went out to watch the fireworks; she explains that she doesn’t know what she meant when she said this; she is confused and struggles with the English language
− At one point, she can’t remember what she did on July 2 and July 3; she states “ I can’t remember right now” and she wants her memory triggered as she doesn’t know where to start
− Save for the first fisting incident, all other incidents occurred on July 3, 2015; she explains that they went shopping ( Food Basics, liquor store); she bought 2 bottles of liquor; they went back to the apartment and they drank most of the evening; at 7-8 p.m., he was lying on the bed and he told her to go and lie next to him and then he started to feel her breasts
− The theft of the $45 was at around 10:30 p.m.
− She describes bleeding everywhere following the second fisting incident:
• There was blood on the sheets
• The blood was dripping from her body when she got up
− She denies consuming Percocets at any time while in Cornwall
− She denies urinating on the bed because she was too intoxicated
− Her trial evidence is that she didn’t black out following the theft incident; she fell asleep while sitting at the table; she is confronted with her preliminary inquiry evidence which suggests otherwise:
“Q. did you blackout?
A. uhh-that’s-I believe I did.
Q. you did blackout?
A. Yeah.
Q. So your memory went out?
A. Memory off and on like”
( P.I transcript volume 11 page 26)
− She responds that she is not lying and that it’s just complicated and confusing
− When she first testified in march 2017 in the trial, her evidence was that the accused bit her on the arm while she was on the floor and prior to throwing the beer bottles; her June 2017 trial evidence is that he bit her while she was on the bed and after throwing the beer bottles
− Her evidence is that she did not refuse any test asked by the ASAP nurse
− She had no reasons to lie to the ASAP nurse
− She acknowledges that she did have a bladder issue prior to July 5, 2015 but that it did not cause urinary incontinence; she did not mention this prior bladder issue to the ASAP nurse
− She did laundry on the Sunday morning and that it was only her clothing; she then states having washed the blanket after she bled on it
− Her trial evidence is that the cutting of her pubic hair was after the throwing of the beer bottles; her preliminary inquiry evidence was:
“Q… this thing that happened with the shaver if it was before or after the beer bottles or the beer cans?
A. It was before….. “
(P.I. transcript volume I page 58)
She explains that she was just confused
− Her trial evidence is that the second fisting incident occurred on July 3, 2015 at around 7-8 p.m.; her preliminary inquiry evidence was:
“A… and after Canada Day it happened the next day on the 2nd
Q. On the 2nd…
A. Yeah
Q. … so the day right after
A. Yeah “
(P.I. transcript volume 11 page 3)
She responds that she was confused then but not confused now; she refers to the finding of the bus ticket (Exhibit #4) as having cleared her mind.
− She is confronted with her preliminary inquiry evidence that she was then wearing the same clothes as when she was assaulted; the point is made that this clothes would have been given to the A.S.A.P nurse on July 5, 2015; she states not remembering talking to anyone at the hospital; she states:
“I’m lost… I don’t know… I don’t remember any more about questions and all that …”
− The suggestion is that she had not mentioned hitting a dresser or leaning close to the fridge after having been raised from her chair by the accused
− She is questioned in regards to her statement to the police on August 10, 2016 that Dr. Shoucri had everything on the computer in light of her evidence that she told the Doctor not to keep any notes of what she disclosed to him
She responds that this is not what she meant
− She doesn’t recall attending the nursing station in K[...] on August 21, 2015
− She confirms that the panties and bra shown on photograph 43 of Exhibit #9 belong to her
− She agrees with the suggestion that there were issues in her relationship with the accused at the time of the second and last visit
• She didn’t understand why he had so many Facebook accounts; he had 3
• He had asked her if she was stalking him
• Things were more tense
• She wanted to know what was going on
• This was one reason why she came to Cornwall
Doctor Warren T. Claxton
[61] Doctor Claxton is a forensic biologist with the Centre of Forensic Sciences. His qualifications are set out in Exhibit #6. On consent, he was qualified as an expert in D.N.A. Interpretation.
[62] His findings in this matter are found in his February 2, 2017 report which was filed on consent as Exhibit #7.
[63] He explains having been provided with the following 3 items:
− #1 : known D.N.A sample ( saliva) from the complainant
− #2: smaller electric Conair clippers
− #3: larger electric Conair clippers
[64] He had been advised that these clippers had possibly been used to shave the complainant’s pubic hair.
[65] The cutters portion of these clippers were swabbed and analyzed for the presence of D.N.A. This revealed the presence on item #2 (smaller clippers) of a mixture of D.N.A. from 3 separate individuals, one being from a major male profile. There were 2 separate contributors to the minor profile.
[66] Item #1 (complainant’s D.N.A.) matched one of the contributors to the minor profile. The probability that a randomly selected individual unrelated to the complainant would coincidentally share her D.N.A. profile are said to be 1 in 49 trillion.
[67] The expert opined that it is possible that cells would have transferred to the clippers if used to shave pubic hair. While hairs do not, skin could carry D.N.A.
[68] In cross-examination, Dr. Claxton explains that he cannot confirm that the subject D.N.A. comes from skin and that it could also come from saliva.
[69] He states that D.N.A. does not usually transfer through casual contacts between individuals. It is possible to transfer D.N.A. through close proximity.
[70] In the end, he cannot tell us how the complainant’s D.N.A. was transferred onto the clippers. He cannot exclude the possibility that it was transferred from a kiss given by the complainant on a cheek. It is difficult to assess which scenario is more probable.
[71] Nor can he state when the transfer unto the clippers took place. It is possible for D.N.A. to remain for a long time.
Constable Jason Mines
[72] Constable Mines initially responded to the complainant’s 9-1-1 call on July 5, 2015 at the Water Street mall in Cornwall. The police had received her call at 11:25 a.m. and he attended at 12:04 p.m.
[73] The officer testifies having observed some injuries on the complainant namely, reddish-brownish marks to the upper left side of her forehead, the inner right bicep and both upper arms. She told him how these injuries were caused.
[74] The complainant was brought to the police station where she provided a video statement. She was then taken to the Cornwall Community Hospital.
[75] He returned to the Hospital as he was advised that the complainant had provided further information. He obtained a written statement from her wherein she disclosed more allegations against the accused.
[76] He would later attend A[...] Street, #[...] to ensure scene security from 6:10 p.m. to 11:40 p.m. No one other than the police entered the apartment during that period. He notes that the entrance door frame was damaged and that there was a circular hole in the wall above the bed area.
Constable Nygel Pelletier
[77] Constable Pelletier was involved in the accused’s arrest on July 5, 2015 together with Constable Depratto.
[78] He attended A[...] Street and arrested the accused who was located in a hallway at 4:24 p.m.
[79] The officer also secured apartment #[…] from 5:05 p.m. to 6:35 p.m. and confirms that no one entered or exited this apartment during that time.
[80] He did not see any broken furniture inside apartment #[…].
Constable Patrick Depratto
[81] The officer testifies having arrested the accused at 4:25 p.m. at A[...] Street on July 5, 2015. He was assisted by Constable Pelletier.
[82] He states having notes some injuries on the accused, namely:
− A cut with some dry blood on the left side of his forehead
− A scratch on the right side of the bridge of his nose
− An abrasion on the left side of his face near his lip and chin area
[83] There was no broken furniture at the scene.
Doctor Rami Shoucri
[84] Doctor Shoucri is a family doctor who was based on the James Bay coast for two and a half years. As such, he would travel to K[...] in 2015. He now practices in Toronto.
[85] While there was some confusion and debate in regards to why he was called as a witness, in the end, the Crown confirmed that he was strictly being called to establish that the August 21st, 2015 nurse’s treatment and community health notes which had been disclosed through a section 278 application were business records.
[86] The Court was advised that the admissibility of these notes as business records was disputed by defence.
[87] The record shows that these notes were ultimately filed at defence’s request on June 7, 2017 as Exhibit #11 in the course of the complainant’s cross-examination.
[88] Crown Counsel also raised the issue of privilege and the statements made by the complainant to Doctor Shoucri in relation to the alleged fistings notwithstanding the Crown having asked her to disclose these communications during her examination in chief.
[89] In the end, nothing turned on this as the complainant was not cross-examined on her alleged disclosure to Doctor Shoucri.
[90] The witness confirms that he is not the author of Exhibit #11. This document was prepared by a nurse. The practice in K[...] is for doctors to document by way of an electronic medical record while nurses use paper records.
[91] He states having no knowledge of who generated Exhibit #11.
[92] Furthermore, he testifies not having revised his electronic record relating to the complainant. He recalls having met her in K[...] but he can’t say if that was on August 21, 2015.
[93] In cross-examination, the Doctor provides the following evidence:
− He does not have access to the complainant’s electronic medical record
− He has not recollection of the following:
• Meeting her with respect to bladder pain or incontinence
• Talking about damage done to her body following a sexual assault
• Telling her to report this to the police
• That she should wear diapers
• Putting her on a course of treatment
− He can’t say for sure, but he would have met her less than five times
Constable Patrick Huygen
[94] This officer testified having maintained scene security at apartment #[…] on July 5, 2015 from 6:35 p.m. until 9:10 p.m. He confirms that no one entered or exited this apartment during that time.
Detective Constable Carole Lalonde
[95] Detective Constable Lalonde is the identification officer who attended A[...] Street, unit […] on July 5, 2015 and searched the scene from 11:00 p.m. to 6:00 a.m. This search was authorized by a warrant which she reviewed prior to her attendance. She was looking for black hair trimmers, cutters and a vacuum.
[96] Exhibit #9 are photographs taken by her in the course of her investigation while at the scene.
[97] Exhibit #8 is a diagram of the lay out of the apartment drafted by her.
[98] She confirms having seized a vacuum cleaner located up against a dresser as shown on photograph 36 of Exhibit #9.
[99] The officer understood the significance of this vacuum to be that the accused was alleged to have told the complainant that he had used same to pick up her pubic hair which he had shaved using clippers while she was sleeping on the bed.
[100] She testified having located regular size Conair clippers and small size Conair clippers on the top drawer of a tall dresser as shown on a number of photographs including photos 39 and 41 of Exhibit #9.
[101] The officer explained the process used by her in seizing, preserving the integrity and marking the items found at the scene.
[102] Her evidence is that both clippers and known D.N.A sample taken by the ASAP nurse from the complainant were ultimately sent to the Centre of Forensic Sciences for genetic profiling. In February 6, 2017 she received Forensic Scientist Trevor Claxton’s report which was filed on consent as Exhibit #7 in this trial.
[103] As for the vacuum cleaner, she states that it was not sent for forensic examination since the hair that would be located inside was cut as opposed to pulled and thus, would have no sheats which is where the D.N.A’s is found. Nor did she look inside the vacuum container to confirm the presence or not of pubic hair.
[104] The officer also provides the following information:
− She noted some damage to the door frame of the entrance door ( photo 28- Exhibit #9)
− There was a hole in the wall over the bed ( photos 44,45,46 of Exhibit #9)
− Underwear and a bra which she states belonged to the complainant were found on a blue chair ( photos # 30,43,61,64 of Exhibit #9); in cross-examination, she states that no visible fluids or blood were detected on these items
− She did not observe any used maxi pads nor maxi pad bags
− There was no broken furniture in the hallway nor inside the apartment; there was no broken end table
− She used a forensic light source over the bed and sheets to locate any possible biological fluids on these items; she did not find any fluids, including blood on same; she states having verified the top portion of the mattress and the sheets; she did not flip the mattress over
Constable Daniel Merpaw
[105] Constable Merpaw was tasked with attending A[...] Street with a view of obtaining statements from potential witnesses who reside in this building.
[106] Most residents told him they had not heard anything with one refusing to provide a statement.
Detective Constable Larry Frappier
[107] Detective Frappier is a member of the Cornwall Police investigation unit and was assigned the investigation of this matter on July 5, 2015. He notes that it was later re-assigned to Detective Van Den Oetelaar.
[108] He states having met the complainant at the police station on July 5, 2015. He observed injuries to the left side of her forehead, bruises to her upper left arm and a bite mark on her upper right bicep. He confirms that the injuries were as shown on the photo Exhibits.
[109] He attended the scene with identification officer Carole Lalonde once the search warrant was issued. They were looking for clippers and a vacuum cleaner.
[110] The rest of his examination-in-chief and most of the cross-examination revolved around the question of the retrieval and disclosure of Facebook communications between the complainant and the accused. Ultimately, nothing turns on these messages as they were never produced in this trial.
Detective Constable Sarah Van Den Oetelaar
[111] This officer has been involved in this matter since August 10, 2016, being the first date set for the preliminary inquiry hearing. She was asked to speak with the complainant at the offices of the Victim and Witness Assistance Program in regards to potential further disclosure made by her.
[112] The complainant was brought to the police station and provided a video statement wherein she disclosed the alleged fisting incidents and urinary incontinence cause by these acts.
[113] This resulted in the preliminary inquiry being adjourned to October 2016.
[114] The officer is also questioned on her attempts at confirming how the complainant travelled to and from Cornwall from her home in K[...] in May, June and July 2015.
[115] She also explains how she attempted to get the complainant’s complete medical records from the K[...] nursing station and the Weeneebayko Hospital.
[116] The officer contacted individuals at both locations and faxed the complainant’s consent to release these records which were received by the police in August 2016.
[117] She eventually spoke to nurse Anthony and Doctor Shoucri with a view of ensuring that the complete record was provided as sought.
[118] In cross-examination, the officer agrees with counsel’s suggestion that the complainant was confused as to when and how she had travelled.
[119] She is questioned at length on the steps she took to confirm the complainant’s said travel itinerary.
[120] She is also cross-examined in regards to the steps taken to ensure that the electronic notes referred to by Dr. Shoucri in his evidence had been disclosed.
[121] Her evidence is that she felt that there was nothing more she could do since she had requested all the records, had spoken to hospital staff a number of times and was advised that she had all of the records.
Sergeant Daniel Doyon
[122] Sergeant Doyon testified that he responded to a 9-1-1 call from a pay phone at the Cornwall Square mall on July 5, 2015. He attended and met with the complainant at noon. He noted that she had a bump and bruising on the left side of her forehead. Her upper arms were also bruised. She had a bite mark on her right bicep.
[123] He confirms having taken on July 5, 2015, the photographs of the complainant filed as Exhibit #5.
J.F.
[124] The accused testified in this trial and denied the allegations made against him by the complainant. He provided the Court with a significantly different version of the events.
[125] He testified having met the complainant at a bar in Cornwall in the spring of 2015. They started to talk and they “hit it off”.
[126] Both the complainant and her sister went to his home at around 2:30 a.m. located at A[...] Street in Cornwall.
[127] He states that the complainant consumed speed and alcohol once at his apartment. She slept with him in his bed and they had sex while her sister slept on the couch. They left the following morning and he had no further contacts with her that day as he had things to do.
[128] He knew she was staying at Nav Can in Cornwall and attended there on the subsequent day. He asked for her at the front desk.
[129] They met for an hour or so in the parking lot where they smoked marihuana. She invited him at Nav Can to watch a hockey game. He states that they “partied pretty heavy” for the next 2 days. They drank alcohol, consumed speed and had sex multiple times.
[130] On the second day, she was told that she was going back to her home in K[…].
[131] He describes their status at that point as “seeing each other” with a potential for a relationship. She told him she wanted to see him again and he agreed.
[132] They kept in touch through messenger while she was in K[...]. They would communicate a couple of times per day. She would have told him that she would return to Cornwall once she sold drugs and made money.
[133] The accused describes 2 separate visits by the complainant in Cornwall.
[134] He explains that they stayed mostly in his apartment during the first visit. They took walks at Lamoureux Park. They drank alcohol and she snorted speed. They started to feel pretty close. He confided in her and disclosed his criminal history and how he had spent some 17 years in jail for serious crimes including manslaughter, robbery and assault.
[135] They were still “together” when she left following the first visit. They kept in touch through messenger. However, the relationship broke down at one point because of her constant complaints and negative messages. She would send him some 30 to 40 negative messages per day questioning why he was not responding. He tried to explain to her that he had issues with Wi-Fi.
[136] This led him to the decision that he was single. In fact, her second and final visit to Cornwall was mainly her decision. He agreed she could come to visit him but mostly as a friend and the possibility that they might have sex. She wasn’t pleased with this proviso.
[137] The accused provides the following details of the complainant’s second and final visit:
June 30, 2015
− This is the date of her arrival
− She was vivid and mad because the taxi driver had driven for one hour off her route
− He gave her marihuana to calm her down
− They had a couple of beers
− She eventually calmed down
− They had sex and both fell asleep afterwards
July 1, 2015
− She told him she had a cheque to cash and they walked to the Money Mart where he waited outside
− She did not complain of any pain nor was she bleeding; she never asked to go to the pharmacy
− They bought beer from an individual and returned home
− They stayed at his apartment and later went to Lamoureux Park to watch the fireworks during the evening
− They returned home and drank beer; she snorted speed which he states she consumes at the rate of one line per hour; he smoked pot
− They had sex
July 2, 2015
− They went shopping at the East Court mall ( pet shop, groceries store, liquor store) and returned home
− The complainant started to cook food
− He wasn’t feeling well because of a moldy beef jerky he had eaten, he smoked marihuana, watched television, played with his cat and his phone
− The complainant started a huge argument when she saw him playing with his phone; she called him a cheater as she believed he was communicating with someone else; he describes her as being in a “ foul mood” and “ very dark”; she was “pissed off” at him
− He told her he didn’t feel like arguing and that he was going to watch television
− She was sitting at the table drinking alcohol which he identifies as Sour Puss and some other alcohol.
− He passed out/ fell asleep on his bed at around 10:00 p.m.-11:00p.m.
− He was awakened to what he qualifies as a “ pretty traumatic event”:
• He was asleep on his back
• Someone was sitting on his chest
• He was being yelled at and punched in the face
• It was dark
• He struck out and grabbed the person’s arms
• He struggled to stand up
• They fell backwards and he recognized the complainant as the person who was attacking him
• He had hit once and didn’t know it was her when he did so as it was dark
• She struck her head on the floor or the dresser when she fell backwards
• She stopped attacking him after she had struck her head
• He started to give her “shit” for attacking him; he told her their relationship was over
− He then went to the washroom which is located outside his apartment to clean his face
− Upon his return, the door to his apartment was locked and he could not re-enter; he knocked on the door and forcefully pushed the door and entered
− He notes that the complainant was sitting at the table drinking alcohol
− He went to the fridge and grabbed a beer which he ultimately threw against the wall; it did not come in contact with the complainant
− While he wanted to kick her out of his home, he didn’t do so because she was intoxicated and it was early in the morning
− She apologized for her behavior and explained that she had blacked out
− She slept on the couch and he laid on his bed; he didn’t sleep because he didn’t feel safe in his home
July 3, 2015
− He noted that the complainant had bruises on her body and head; he asked her if she wished to go to the hospital but she declined
− They went to the pharmacy to purchase pills; she placed ice on the back of her head
− She was trying to organize an earlier trip back home but the earliest possible return was July 5
− She did not complain of any vaginal bleeding
− She slept close to the wall that night
July 4, 2015
− They spent most of the day inside the apartment; she went to the mall to make phone calls
− He tried to convince her to come fishing with him but she refused
− He smoked marihuana and was trying to make the best of a bad situation
− She appeared “ mellow” and calm
July 5, 2015
− They both got up pretty early that morning; he didn’t want a repeat of the prior incident; he was again asking her to go fishing
− She grabbed her clothing and threw same in a laundry basket; he told her to do this at home
− She would have grabbed a bottle of alcohol from the freezer and went downstairs to the laundry room
− He went downstairs and told her to give him the alcohol but she refused
− He asked her a couple of times to leave; she was screaming at him ; she eventually placed her wet clothing in a bag and left for the mall
− He also went to the mall looking for her; he found her standing and looking at the doors
− They went for a cigarette; he asked her to pour some of the alcohol in a mickey container he had brought with him but she refused
− He went back home
− He was arrested later that day by the police while in a hallway where he lives
[138] The accused denies having placed his fist inside the complainant’s vagina. He also denies having used a trimmer to shave her pubic hair.
[139] In cross-examination, the accused identified his criminal record and same was filed as Exhibit #12
[140] He reiterates having been very upset after the complainant had attacked him so much so that he would have thrown his beer bottle on the wall over his bed. He didn’t feel safe with her in his home. When asked why he had not contacted the police or left his apartment, he explained that she was apologetic, it was late and she had no place to go to. He didn’t let her drink alcohol after this incident but they both smoked marihuana.
[141] She had told him that her bus was leaving at around 5:00 p.m. on July 5.
[142] As to why he told her to leave the morning of July 5, he notes that she was yelling, arguing and causing a scene. He didn’t want her to black out again as she had taken the bottle of alcohol out of the freezer.
[143] He is then questioned as to why he would go to the mall to find her since he had wanted her to leave. He is also cross-examined on why he would want a portion of the alcohol and bring a mickey container in light of his evidence that he doesn’t drink hard alcohol.
[144] His response to this line of cross-examination can be summarized as follows:
− He brought the mickey container because he wanted some of the alcohol she had taken
− He didn’t want her to drink any alcohol
− He knew she wasn’t leaving before 5:00 p.m. and there was a side of him that was concerned for her; he offered to bring her back and place her clothing in the dryer
[145] He rejects Crown counsel’s suggestion that he drank all the time and that in fact, he had taken $45 from the complainant to purchase alcohol. Reference is made to the fact that he wouldn’t have much money to purchase alcohol as he was on Ontario Works and his rent was high.
[146] He denies having shaven her pubic hair while she was sleeping. He agrees that she had pubic hair when she arrived on June 30.
[147] He also denies having placed his fist inside her vagina and that she bled because of this. While possible, he highly doubts that she purchased sanitary pads.
POSITION OF THE PARTIES
DEFENCE
[148] Defence’s position is that the Crown has not proven the accused’s guilt beyond a reasonable doubt.
[149] The accused should be believed by the Court. If not, his evidence raises a reasonable doubt since he presented as credible, he testified in a straightforward manner and was not impeached in any way.
[150] However, it is conceded that some areas of his testimony may appear strange. Examples of this includes the question of why he would attend the mall after the complainant had left as he had requested and why he had forced her to leave his home that morning. While this conduct is problematic, it is argued that the fact that he testified and disclosed this should serve to bolster his credibility. There was nothing forcing him to disclose this. It is argued that the providing by him of evidence which is not helpful should be seen as an indication of credibility.
[151] The Court is asked to accept his version of how he was attacked by the complainant while asleep on his bed.
[152] As for the complaint, it is argued that she is not credible and/or reliable.
[153] Defence’s position is predicated for the most part on what is argued as lack of corroboration of the complainant’s version and the existence of internal and external inconsistencies when one looks at the totality of the evidence.
[154] Reference is made to the following as examples of lack of corroboration:
− Her travel itinerary to and from Cornwall
− The absence of bodily fluids on the mattress and sheets
− The police not having looked inside the vacuum cleaner container to confirm the presence of pubic hair
− The medical records produced by the K[...] medical clinic
− The ASAP nurse not having observed any injuries to the complainant’s external vaginal area; nor was bleeding detected
[155] It is also submitted that the police did not diligently pursue the investigation so as to try and corroborate the complainant’s evidence; specifically:
− Ensure that all of the complainant’s medical records were provided including Dr. Shoucri’s electronic notes
− The travel itinerary
− Looking inside the vacuum
[156] Counsel relies on the following contradictions:
− Her statement that she only had $45 left and her subsequent purchases of alcohol
− Her description of what she was wearing at the time of the alleged assaults
− How she describes her level of intoxication at different times
− Her suggestion that she was confined in the accused’s home and didn’t go anywhere as compared to the various activities she describes
− How she expanded on her version of events and disclosed the alleged fistings some 13 months later
− The ASAP nurse’s evidence that here was no bleeding or trauma to her exterior vaginal area
[157] The ASAP nurse’s report filed as Exhibit #2 is said to undermine the complainant’s credibility on a number of points. For example:
− Her refusal to be tested for trichomonas
− Not wanting to have her fingernails examined
− Her statement that she had intercourse with the accused and he had ejaculated on the bed
− She did not mention having consumed drugs such as speed
[158] Finally, the presence of the complainant’s D.N.A. on the trimmer is not a significant consideration. There is no indication of how same was transferred, it could have been there for a long time and it was in very minute quantity.
CROWN
[159] The Crown’s position is that the evidence establishes the accused’s guilt beyond a reasonable doubt.
[160] The submission is that the complainant is a credible and reliable witness and the accused is not believable.
[161] The Crown notes that while there are some inconsistencies in the complainant’s evidence, these are not sufficient to support a finding that she is not to be believed.
[162] Reference is made to the following considerations:
− Save and except for the alleged offences, the accused’s evidence corroborates the complainant’s version of events
− The flipping of the mattress by the accused is supported by the photo Exhibit
− The finding of her DNA on the clippers
− The bruises and bite marks on her body which were observed by witnesses and shown on photo Exhibits
− The ASAP nurse would have seen that she had no pubic hair since she swabbed the external area of her vagina
− The fact that she started to have urinary incontinence after the alleged fisting incidents
[163] Her ability to describe the inside of the accused’s apartment prior to being shown photographs and identify changes to the outlay is said to bolster her believability and add an air of reality to her testimony.
[164] It is argued that the inconsistencies and uncertainties in the complainant’s evidence raised by defence are not significant and are explained for the most part. The Court notes the following examples raised by Crown counsel:
− $45 was the only cash money she had; she was able to purchase items using her debit card
− The confusion in regards to her clothing is as a result of how she was questioned
− The uncertainties on her travel itinerary from K[...] to Cornwall is expected considering how it is complicated to travel back and forth between these two places
− Her prior bladder condition had nothing to do with urinary incontinence
− She readily admits having consumed a significant amount of alcohol
− She testified not knowing the meaning of the proposed trichomonas test
− The records reveal that the fingernails were not examined because she had taken a shower prior to the examination
[165] Furthermore, the complainant’s failure to disclose the fisting incidents on July 5, 2015 should not negatively impact on her evidence. She explained how she felt at the time and that she did not know anyone. The Court is reminded that victims of sexual violence react differently. The fistings were very invasive and thus, nothing should turn on this non-disclosure.
[166] Nor should the Court draw a negative inference by reason of the police not having opened the vacuum to confirm the presence of pubic hair. The identification officer explained that the cutting as oppose to the pulling of the pubic hair would not have provided any D.N.A. evidence.
[167] The Crown argues that the accused’s evidence should be rejected by the Court on the basis of the following considerations:
− His actions contradict his statement that he is not a big drinker and his attempt to distance himself from the consumption of alcohol
− He states not feeling safe with the complainant in his home and yet he doesn’t call the police and remains there on his bed
− His explanation that he wanted her out of his home because of his concern that her conduct would disturb his neighbours is contradicted by his own conduct when he kicked the door, yelled and threw a beer against the wall
− His suggestion that she attacked him is not logical considering that she ended up with the injuries; her documented injuries are not consistent with his version
− His confusion as to whether the complainant had purchased pads; this discloses an attempt to distance himself from this subject matter
− His inability to provide particulars of his financial circumstances at the relevant time is suspect when one considers his ability to provide details on less significant points; this should be seen as trying to avoid a possible motive for the theft of the $45
− He is said to have struggled in cross-examination in describing how he responded to the complainant’s attack on him while he was asleep
− The fact that he was seen reviewing notes prior to his cross-examination establishes that he had a script and that he framed a story around the rest of the objective evidence
THE LAW
[168] In deciding this matter, the Court will be guided by the following relevant principles:
Essential elements of offences
Sexual assault
The accused intentionally applied force to the complainant.
The complainant did not or could not consent; consent means the voluntary agreement of the complainant to engage in the sexual activity; there is no consent when the complainant expresses by words or conduct, a lack of agreement to engage in the activity.
The accused knew there was no consent or was reckless and/or willfully blind on whether there was consent.
A belief in consent is also vitiated if the accused person did not take reasonable steps, in the circumstances known at the time to ascertain that the complainant was consenting.
The contact took place in circumstances of a sexual nature.
Assault
The accused intentionally applied force to the complainant.
The complainant did not consent to the application of the force.
Sexual assault using a weapon
Each of the essential elements noted for a sexual assault.
A weapon was involved in the commission of the sexual assault.
A weapon is any object that could be or is used to injure, kill, threaten or intimidate another person, whether it is designed or made for that purpose or not. It includes anything that an accused used or intended to use as a weapon.
Theft
The accused took property for his own use that belonged to the complainant.
The accused took the property fraudulently and without colour of right.
When the accused took the complainant’s property, the intent was to deprive him or her of the property at least temporarily.
Sexual assault causing bodily harm
Each of the essential elements noted for sexual assault.
The force intentionally applied caused bodily harm to the complainant.
Bodily harm means any hurt or injury that interferes with the complainant’s health, comfort or psychological well-being. The harm must be something more than brief or fleeting or minor in nature.
Fundamental principles of our criminal law
The presumption of evidence provides that J.F. is presumed innocent and so remains if and until the Crown proves his guilt.
The burden of proving guilt rests solely on the prosecution. There is no burden of proof placed on an accused person. J.F. does not have to prove anything.
The Crown’s burden is to prove each of the essential elements of the offences already noted beyond a reasonable doubt.
I have instructed myself in regards to the concept of reasonable doubt in accordance with the Supreme Court of Canada’s decision in R. v. Lifchus [1997] 2 S.C.R. 320, namely:
i) It is fundamental to the presumption of innocence;
ii) It is not a doubt which is far-fetched or frivolous;
iii) It is not based on sympathy or prejudice; it is based on reason and common sense; it is a doubt that logically arises from the evidence or the lack of evidence;
iv) It is not enough for the Court to believe that an accused is likely or probably guilty;
v) However, the Court is not required to prove guilt on the standard of absolute certainty;
vi) The Court’s task is to consider all of the evidence and decide whether it is sure that the accused committed the offence; an acquittal must follow if at the end, based on all of the evidence or the lack of evidence, it is not sure;
vii) Where reliability and credibility are the ultimate issues, the Court is reminded that the rule of reasonable doubt applies to the assessment of reliability and credibility.
Since J.F. has testified in this trial and the outcome revolves around an assessment and appreciation of the credibility and reliability of the witnesses, the proper analytical framework is found in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742
Firstly, if the Court believes the accused, an acquittal must follow;
Secondly, if the accused is not believed but his evidence raises a reasonable doubt, then he must be found not guilty
Lastly, even if the Court is not left with a reasonable doubt with the accused’s evidence, the question for the Court becomes whether based on the evidence that is accepted, it is convinced beyond a reasonable doubt by this evidence that the accused is guilty.
Assessment of reliability and credibility
[169] In assessing the evidence of the witnesses, the Court must carefully and with an open mind consider all of the evidence. It must decide how much or little to believe and rely upon the testimonies.
[170] The Court may believe some, none or all of a witness’s evidence.
[171] This assessment is an exercise in common sense. There is no magic formula, no crystal ball, no scientific formula to assist the Court.
[172] The Court is alive to the important distinctions between the concepts of reliability and credibility. Credibility relates to a witness’ sincerity and belief that he or she is speaking the truth. Reliability relates to accuracy. It is possible for a credible witness not to be reliable.
[173] In properly assessing the witnesses in this trial, the Court will consider all of the circumstances including the following:
The witness’s ability to observe
The ability to recall the relevant events
How the witness presents in the witness box; this measure does not mean whether the witness appears to tell the truth ; it is not based on an “appearance of sincerity” as looks can be deceiving; what it does mean is that having regard to the particulars of the witness such as age, sophistication and limits, it is proper to consider things such as:
• Whether the witness was argumentative
• Whether he or she was responsive to the question
• Whether the witness was evasive
• The presence of hesitation in answering
• The showing of appropriate emotions
Whether the evidence finds support in extrinsic evidence such as other witnesses, physical evidence or the circumstances
Whether, to the contrary , the version is contradicted by such extrinsic evidence
The ability to provide a detailed account of the relevant event; details which are significant
The presence of an interest in the outcome, a motive, any bias or partiality; the Court is mindful that the question of motive is to be addressed with caution; I am guided by the instructions of the Ontario Court of Appeal in R.v. Batte 2000 CanLII 5751 (ON CA), [2000] O.J. no 2184:
• There is no burden on an accused to demonstrate that a complainant has a motive to fabricate
• The absence of a demonstrated motive to fabricate doesn’t necessarily mean that there is no motive
• Nor does the absence of a demonstrated motive to fabricate establishes that the witness is telling the truth
• The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility
Whether the witness’s version is internally consistent being mindful that some details may be more significant than others
Whether the witness’s version is plausible when looked at through the lens of common sense, life experience, logic and/or reason
Whether the version is unreasonable and/or improbable when considered against the backdrop of facts which are not in dispute.
Whether the witness has a criminal record for crimes involving dishonesty
− There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave; some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse; reasons for delay are many and at least include embarrassment, fear, guilt or a lack of understanding and knowledge, in assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case; a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant
- R. v. D.D. [ 2000 SCC 43, 2000] 2 S.C.R. 275
DISCUSSION
[174] Having considered all of the circumstances and the relevant principles, the Court finds that the Crown has not proven the accused’s guilt beyond a reasonable doubt on the counts set out in the indictment.
[175] The evidence is such that the Court is left with a reasonable doubt. While the threshold is not one of absolute certainty, the Court cannot be sure to the required degree that the accused did what is alleged by the complainant.
[176] The Court’s reasonable doubt is grounded on the accused’s testimony, the prosecution’s evidence and the lack of evidence.
[177] The accused’s testimony is not without difficulties. Portions of his evidence are suspect and hard to believe. The most significant example is why he would go to the mall on the Sunday morning to get some of the alcohol the complainant had left with. Such conduct makes very little sense since he states not liking alcohol and he had wanted her to leave.
[178] His conduct after being locked out of his apartment is also troubling. It is certainly not reasonable and rational behavior.
[179] The Court also notes that the accused’s criminal record discloses a number of entries for crimes of dishonesty.
[180] While these considerations impact on the accused’s believability, it does not allow for the total rejection of his testimony.
[181] His demeanor in the witness box is found to have been supportive of his credibility and reliability. He presented as calm, responsive to the questions and not argumentative.
[182] He appeared to be a good historian having a good recollection of the relevant events. He provided a fairly detailed account.
[183] There are no significant internal inconsistencies in his evidence.
[184] Furthermore, his evidence finds some support in the objective and uncontroverted extrinsic evidence. The Court notes the following as examples of such confirmatory evidence:
− The absence of any blood inside of his apartment including the mattress and sheets
− The absence of a broken table in his apartment
− The presence of injuries to his face as observed by the police
[185] The end result is that while the Court does not believe the accused’s evidence in its entirety, it is such that it raises a reasonable doubt of the Court. His version of events cannot be dismissed beyond a reasonable doubt.
[186] The Court’s reasonable doubt is also grounded on the Crown’s evidence and the lack of evidence.
[187] This was obviously a difficult process for the complainant. At times she appeared confused and became unresponsive to questions. On one occasion, she was sobbing loudly while repeating “…mommy… mommy….”. While such extreme emotional outbursts are concerning, the Court is in no way faulting her for this. However, the Court is left with the sense that she is confused in her evidence. She refers to “confusion” as an explanation for discrepancies between her preliminary inquiry and trial testimony. She stated the following:
− She doesn’t know what she meant at the preliminary inquiry when she stated that she hadn’t gone anywhere after the fisting; she states “ I’m just confused”
− She is not lying… just confused
− She was confused the first time in Court but she has now talked to her counsellors which helped her to remember
− The correct version is what she said today… no lies… just complicated and confusing
− At one point she states that she can’t remember what she did on July 2 nor July 3; she explains “ I can’t remember right now”; she wants her memory triggered as she doesn’t know where to start
[188] The end result is that she is, by her own admission confused on significant matters. This impacts on her reliability.
[189] The Court has also considered the amount of alcohol, marihuana and speed consumed by the complainant during the relevant period and how this would logically impact on her ability to remember. Common sense and life experience would suggest that such high level of consumption would have an impact.
[190] The fact that she fell asleep sitting at a table would certainly be indicative of intoxication. While she denied this at trial, her preliminary inquiry evidence was that “ she believed having blacked-out” while at the table and that her memory was “off and on”
[191] It is telling that she is unable to confirm whether or not she herself had assaulted the accused and smashed a small table on him. This is concerning to the Court.
[192] She testified that prior to the alleged shaving of her pubic hair, she was “drinking and drinking to make herself numb” and then she “passed out on the bed”.
[193] So that the significant consumption of alcohol and drugs by the complainant raises concerns for the Court and her ability to recall the events.
[194] There are also a number of internal inconsistencies on important matters in her testimony. These raise concerns of credibility and reliability when looked at collectively. The Court notes the following examples:
− Her evidence at both the preliminary inquiry and examination- in-chief was that the second fisting occurred on July 2, 2015, “…the next day after Canada Day…”; in cross-examination, she maintains that the second fisting was on July 3, 2015 and that she knows because of the bus ticket ( Exhibit #4) which she found; the Court notes that the complainant referred to this bus ticket at the preliminary inquiry and obviously had same when she testified in this trial in examination-in-chief
− In chief, she describes the start of the second fisting incident as follows”… she went to lay on the bed in the evening and he joined her and started to touch her breasts”; in cross-examination she stated “… he was lying on the bed and he told her to go and lie next to him and then started to feel her breasts”.
− In her examination-in-chief, she explained that the accused had pulled her upwards from her seat by placing his hands on both sides of her face; she also stated that once she came out of her seat “… he let go” and they went towards the door; she states: “he didn’t grab me there just shoved me…” in cross-examination, she describes having been pulled or dragged by him close to the fridge… she felt the fridge on her left side as he was doing this to her
− In her examination-in-chief, she stated that the accused had bit her on the arm while she was on the floor protecting herself; she then crawled on the bed and he started throwing beer bottles on the wall; in cross-examination, she testifies that she was on the bed, he threw the beer bottles and then he bit her arm.
− There is some discrepancies in regards to what she was wearing at the time of the first fisting incident
− At the preliminary inquiry, her belief was that she was wearing at that time the same clothes she wore when assaulted; the evidence of the ASAP nurse would suggest that the clothes worn at the time of the assault was turned over to her as part of the examination
− As already noted, there is a variation on how the complaint describes her level of intoxication at the relevant times
− She had not disclosed the consumption of speed when asked by the ASAP nurse; nor did she disclose this to the police in her July 5, 2015 statement
− There is debate as to what the complainant meant when she told the ASAP nurse that the “ assailant’s penis” had penetrated her vagina and that he ejaculated on the bed; the Crown argues that in light of her prior response that there had been no “vaginal” sexual contact within the last 7 days, the complainant would have understood this to mean whether she had, in the past, have sexual intercourse with the accused; defence submits that it would have been clear to the complainant that the question related to the time of the alleged sexual assault for which she was being examined; it would seem to the Court that the context of the questions and her reference to the accused having ejaculated on the bed support the defence’s argument on this point;
− She is contradicted by the ASAP nurse on the issue of not having refused any of the tests; the nurse indicated, and this is confirmed by the medical record filed as Exhibit #3, that the complainant had refused the test for the detection of trichomonas; this was in fact the only test for the detection of sexually transmitted diseases out of 7 declined by her; there is no explanation for this refusal and the complainant testified not understanding the meaning of trichomonas; the ASAP nurse testified that the symptoms of this disease include frequent urination, vaginal pain and discharge; in the absence of an explanation; this refusal is found to be suspect.
− On page 3 of the medical record filed as Exhibit #3, under the heading Sexual Assault History, the complainant is said to have indicated the following:
Date and time of assault: Physical assault
July 3, 2015
Sexual assault
July 4 at 20:00
The Court notes that there is no suggestion in the complainant’s evidence that she was sexually assaulted on July 4, 2015 at 8:00 p.m.
[195] The complainant’s initial non-disclosure and eventual disclosure 13 months later on the eve of the preliminary inquiry was also considered by the Court in assessing her credibility and reliability.
[196] To be clear, her delay in disclosing this, does not, in and of itself, give rise to an adverse inference against her credibility. It is one circumstance considered by the Court in the “factual mosaic of this case”.
[197] The Court is also mindful of the abrogation of the rules respecting recent complain through section 275 of the Criminal Code.
[198] The complainant testified that she was afraid, felt alone and embarrassed. This is certainly in keeping with the Supreme Court of Canada’s instructions in R. v. D. D. There is no inviolable rule on how victims of sexual violence will behave.
[199] The real concern lies in the lack of evidence explaining the circumstances which led to the disclosure of the alleged fistings to the authorities on the eve of the preliminary inquiry. The only evidence provided to the Court is that Detective Van Den Oetelaar was asked to attend the office of the Victim and Witness Assistance Program as the complainant had information to disclose and that she ultimately provided a video statement. The end result of this is that the Court knows why there was no initial disclosure but has no knowledge of why it was eventually disclosed. How then can the Court properly assess and appreciate the late disclosure as not being unfavourable to the complainant’s credibility and reliability.
[200] The Court also notes that Crown counsel had raised the question of the disclosure to Dr. Shoucri and a nurse during the complainant’s examination-in-chief as part of the narrative. She stated having disclosed everything the accused had done to her to this individual. Dr. Shoucri who was called by the Crown to prove that the August 21, 2015, medical note filed as Exhibit #11 was a business record explained that he had not reviewed his notes and had no recollection of such a conversation with the complainant.
[201] The end result is that this evidence does not assist the Court in understanding and appreciating the complainant’s ultimate disclosure of the alleged fisting incidents on the eve of the preliminary inquiry.
[202] Finally, the Court finds that the complainant’s version of the events is not supported by the objective extrinsic evidence disclosed in this trial:
− While she describes having lost a significant amount of blood after the second alleged fisting, there is no blood found inside the apartment
− Her evidence of blood “ gushing” and “dripping” from her vagina is such that the finding of blood is reasonably expected even if the accused did turn the mattress over
− There was no blood found on the sheets; her explanation that she had washed the sheets after she bled on same is found to be suspect because:
• It wasn’t raised during the examination in chief
• It was raised by her in cross-examination after stating that she had only washed her clothing on the Sunday morning
• There is no indication in the evidence when she would have washed the sheets
− There is no evidence of sanitary pads found at the scene
− There is no broken table found at the scene
− As the police did not look inside the vacuum cleaner container, there is no evidence confirming the presence of pubic hair in this item; at a minimum, looking inside the vacuum could have confirmed the presence of pubic hair
− The presence of the complainant’s D.N.A. on the smaller clipper is certainly supportive of the shaving allegation; and highly suspect; however, as explained by Dr. Claxton, he cannot tell us how this D.N.A. was transferred; he cannot exclude the possibility that it was transferred from a kiss by her on a cheek ; he states that it is difficult to assess which scenario is more probable
− The August 21, 2015 Nurse’s Treatment and Community Health notes filed as Exhibit #11 are, in part, as follows:
“Pt also mentioned to RN that she had 3 separate episodes of urinary incontinence while asleep last 2 weeks…”
These notes, do not support the complainant’s evidence
• No mention of what the accused would have done to her
• According to her evidence; the urinary incontinence was continuous and had started following the fistings on July 3, 2015
• It was not limited to when she was sleeping
− The bruises on the complainant observed by a number of witnesses and shown on the photo Exhibits are certainly compelling and supportive of the complainant’s version of events; this extrinsic evidence, when looked at in isolation, makes it probable that she was assaulted by the accused; however, when looked at in the whole of the evidence and the noted credibility and reliability concerns with the complainant’s testimony, the Court cannot exclude the possibility that the accused was attacked as described by him; this provides a possible explanation for the said bruises.
CONCLUSION
[203] The accused is accordingly found not guilty on all counts.
Justice Ronald M. Laliberté
Released: September 25th, 2017
CITATION: R. v. F, 2017 ONSC 5265
COURT FILE NO.: CR-39700-16-77
DATE: 20170925
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.F.
REASONS FOR JUDGMENT
Justice Ronald M. Laliberté
Released: September 25th, 2017