Her Majesty the Queen v. Bryan Robinson, 2017 ONSC 5307

R. v. Robinson, 2017 ONSC 5307

COURT FILE NO.: CR-16-70000704-0000

DATE: 20170908

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRYAN ROBINSON

Accused

Alannah Grady, for the Crown

Ashley Audet & Tessa Moran,

for the Accused

HEARD: July 10, 11, 12 & 13, 2017

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.

B.A. ALLEN J.

REASONS FOR DECISION

BACKGROUND

1The accused, Bryan Robinson, was arrested on April 9, 2016 and charged with offences against two women. Against J.H., age 48, Mr. Robinson is charged with attempted sexual assault by choking (count 2), common assault (count 4), sexual assault (count 5), unlawful confinement (count 6). Against Margaret Geraldine Boyer, age 47, (“Geri Boyer”) he is charged with uttering a death threat (count 3). Mr. Robinson is also charged with breach of recognizance (count 1).

2Ms. J.H., Ms. Boyer, and two investigating officers testified for the Crown. A defence was not called.

3This case involves sexual offence allegations by Ms. J.H. committed in Mr. Robinson’s apartment at unit 307, 510 Dawes Rd. in Toronto. The apartment buildings at 500 and 510 Dawes Rd. have subsidized units that house persons with mental health and cognitive problems. Those residents are managed on-site by a community-based organization called COTA.

4Ms. J.H. has been a prostitute for 32 years. She said her main motivation for engaging in this trade is to finance her drug habit. She admits that she had arranged a “date” with Mr. Robinson in the early hours of April 9th to perform certain sexual acts in exchange for $50.00. As will be seen, the amount paid and whether anything was paid at all is a matter of inconsistent evidence from Ms. J.H..

5Ms. J.H. had only met Mr. Robinson on one occasion before April 9th and that was the day before in the early morning hours of April 8th. Ms. J.H. lives at D[…] Rd. She meets clients in front of her building. Mr. Robinson approached Ms. J.H. there and asked her if she wanted to go on a date. Ms. J.H. told him the price for her services is $50.00 and she said she cautioned him she would not take a client without getting paid upfront. Ms. J.H. stated he asked her where there was an ATM machine nearby and left saying he would return. She did not wait around for Mr. Robinson. A regular client came along and she went on a date with him.

THE INCIDENT BEFORE THE COURT

Examination-in Chief

6On April 9th Ms. J.H. again met Mr. Robinson in front of her building between 2:00 and 3:00 a.m. Mr. Robinson had an angry attitude and complained that she had disrespected him for not waiting for him on the previous evening. Ms. J.H. indicated she was not under the influence of drugs or alcohol when she met Mr. Robinson. She indicated she could not obtain any substance because she could not get a date to pay for it.

7Ms. J.H. and Mr. Robinson went up to Mr. Robinson’s apartment, unit 307 at 510 Dawes Rd. It was when they were in the apartment that she told Mr. Robinson she would have sexual intercourse and perform fellatio for $50.00. She was looking to get money to buy crack. Ms. J.H. testified that Mr. Robinson told her he only had $20.00. This seems contrary to Ms. J.H.’s earlier insistence in-chief that she never went on a date unless she was paid upfront.

8There are inconsistencies in the evidence as to whether and how much. she was paid. At trial in-chief, she testified she was not certain because her “head was so cluttered now”. She also insisted she was not under the influence of drugs at trial. She said she takes prescribed medical marijuana for a pinched nerve. Later in-chief, she testified she got paid, she believed, $50.00. She then said she did not know whether she got any money.

9Whatever the case, Ms. J.H. testified she consented to the date. She agreed to go to his bedroom to have sex.

10Mr. Robinson’s bedroom had a bed, other furnishings, and beside the bed was a fan on a stand. On the other side of the bed was a window.

11Ms. J.H. was wearing black stretchy pants, no underwear, a top and running shoes. The issue about whether a condom was in use is far from clear. In-chief at trial, Ms. J.H. stated that she put a condom, which she had with her, on him. She insisted she always uses a condom. Ms. J.H. lay on the bed with Mr. Robinson on top of her.

12Ms. J.H. testified that at first she consented to have sex. But after about 30 minutes or so of sexual intercourse, Ms. J.H. thought it was taking too long. She said she wanted to stop and told him over and over that it was hurting because the condom lubrication was wearing off. Ms. J.H. testified that the condom did not come off at any time and she was surprised because his penis was flaccid at times.

13Ms. J.H. told Mr. Robinson to get off of her. She said he refused to get off. At this point, Mr. Robinson told her to shut her mouth or he would pistol whip her or kill her. Ms. J.H. testified Mr. Robinson also used physical force against her. She testified he was on top of her and she was trying to get up, and with his whole body weight he pressed his forearm against her neck. He also put both hands around her neck and squeezed so hard that she nearly blacked out. She said she had an adrenalin surge, “freaked out” and in retaliation, was able to push Mr. Robinson off the bed onto the floor at the foot of the bed.

14Ms. J.H. testified Mr. Robinson never got back on the bed. At first in-chief at trial, she testified the sexual assault ended when she pushed Mr. Robinson off the bed.

15Later in-chief at trial, Ms. J.H.’s evidence was that she was on the floor with Mr. Robinson on top of her and he punched her over and over on top of her head which left three or four goose eggs. On cross-examination, Ms. J.H. stated that while she was being punched she put her hand to her head and felt the goose eggs. Ms. J.H. also stated that the fan came apart and he also used the pole from the fan to beat her on top of her head.

16Ms. J.H. testified she received an abrasion on the top of her head from the fan attack. She pointed to a red mark on her head in the scene of crime photos saying that it was caused by the fan pole.

17In-chief at trial, Ms. J.H. stated that when she pushed him off the bed, Mr. Robinson fell off the bed, his head smashed against the wall and he was almost knocked out cold. This gave Ms. J.H. the chance to call for help. She got on her knees on the bed and stuck her head out the window and screamed loudly over and over “Help me! I’m being raped. Apartment 307.” A voice responded, “I’ll be right there.” It was Ms. Boyer. Ms. Boyer was visiting her friend, Amanda, in the apartment immediately above apartment 307.

18Ms. Boyer came upstairs with Amanda and knocked on Mr. Robinson’s door. Mr. Robinson opened the door and tried to close it when he saw Ms. Boyer and Amanda. But Ms. Boyer put her foot in the door to block it from closing. At first Ms. J.H. testified she was still on the bed on her knees when Ms. Boyer knocked on the door. But that evidence changed a number of times.

19Ms. J.H. was asked in-chief at trial what was happening just before Ms. Boyer came to the door. Contrary to her earlier testimony that the sexual assault ended when she pushed Mr. Robinson off the bed, she testified that before the knock on the door Mr. Robinson was still having sex on the bed with her against her will and would not stop. Ms. J.H. said the next thing she knew after Ms. Boyer blocked the door is that Ms. Boyer punched Mr. Robinson in the head knocking him out. He fell flat to the floor naked with his “butt” in the air. She said she had to hurry out of the apartment to get away from him

20Ms. J.H. did not have time to put on her pants or shoes. Ms. J.H. stated that, wearing only her top, she ran out of the apartment upstairs to Amanda’s apartment with Ms. Boyer and Amanda. Ms. J.H. testified she did not see Mr. Robinson again after she left his apartment. She left Amanda’s apartment shortly afterward.

AFTER THE INCIDENT

Cross-Examination

Police Notes, Police Video Statement and Preliminary Inquiry Evidence

21Ms. J.H. called 911 in the early hours of April 10th, about 21 hours after she left Mr. Robinson’s apartment. Two officers came to her apartment. She was adamant she did not do any drugs between the incident and when she spoke to the police. She insisted she “wanted to keep her memory fresh in her mind.” The police took notes of Ms. J.H.’s account. They then took her to Scarborough Grace Hospital. She was interviewed by medical staff, examined and a rape kit was done. On April 10th after the hospital attendance, the police took her to the police station to give a video statement.

22Ms. J.H. testified she reviewed her video statement before trial. She agreed that what she told the police was true. But admitted she might have been confused about the money. The defence pointed out the contradictory evidence she gave in-chief that she received $50.00 and that she changed that to $20.00 and then said she did not know whether she received any money at all. Ms. J.H. stated she simply could not pinpoint whether she received $20.00 or $50.00. She just did not remember.

23Ms. J.H. admitted she told the officers who came to her house and who accompanied her to the hospital that no money was exchanged between herself and Mr. Robinson. Her explanation was that she did not want the police to know she was a prostitute because she felt she would not be believed about being sexually assaulted and she did not want to be arrested.

24Later that morning at the police station, that evidence changed. Ms. J.H. made a rather quick admission to the police at the start of the video interview that she is a prostitute. She maintained during the interview that no money was exchanged. The defence challenged her that she lied to the police about the incident before the court and had also lied to the police on other occasions in relation to previous charges. Ms. J.H. did not deny this.

25The preliminary inquiry took place on November 2, 2015. Ms. J.H. stated she was also sober during that proceeding. The defence pointed out, and Ms. J.H. agreed, that in-chief at the preliminary inquiry, she testified she recalled receiving a $50 bill while in the bedroom with Mr. Robinson. This was the full amount she originally negotiated and after she received the money they had sex. In-cross at the preliminary inquiry, Ms. J.H. changed that evidence to say she received $20.00 in the bedroom and then they had sex.

26Ms. J.H. agreed she gave various contradictory versions about the money to the police, at the preliminary inquiry and at trial.

27There is a further problem with Ms. J.H.’s description of the nature of the sexual encounter. The police notes indicate that what Ms. J.H. told them at her house made it appear that from the beginning Mr. Robinson forced her to have sex. This is a direct contradiction to her evidence that the sex was consensual until she told him to stop when it began to hurt after 30 minutes. The police notes indicate she said Mr. Robinson removed her pants, pushed her onto the bed and had his way with her without her consent.

28Similarly, in her police interview, she stated that Mr. Robinson told her to take her pants off or she would not get any money. He ordered her to “turn around and do her stuff”, that is, to perform sex in the “doggy style” or he would pistol whip, shoot or stab her if she did not do as he ordered. She said she “let him have his way and then cried and cried.” She agreed she must have said these things to the police but she just did not recall saying them.

29When confronted with this inconsistency, Ms. J.H. reasserted her evidence that there was no force or threats in the beginning and she consented to sex until she told him to stop after the 30 minutes. She admitted the police notes “didn’t sound right”.

30Defence counsel referred Ms. J.H. to her evidence in-chief at trial about Mr. Robinson wearing a condom during the entire intercourse. Counsel pointed out that during the police interview she said the condom came off between her screams out the window. She told the police she believed he took it off and that she grabbed and held onto his bare penis. Ms. J.H. testified that she did not recall telling that to the police but she agreed she must have said that and that she was telling the truth to the police. Ms. J.H. gave similar evidence at the preliminary inquiry that the condom might have slipped off.

31Defence counsel pointed to Ms. J.H.’s evidence in-chief at trial that Mr. Robinson punched her on top of her head over and over. The defence also referenced the fact that Ms. J.H. had also told the police that Mr. Robinson punched her repeatedly in the face. Ms. J.H. went on to comment in her police interview that she was surprised she did not have any marks on her face. Ms. J.H. again said she did not recall saying that to the police but admitted she must have said it and that it was the truth.

32Defence counsel also challenged Ms. J.H. about what happened between the time she pushed Mr. Robinson to the floor and when Ms. Boyer knocked on the door. She testified she and Mr. Robinson were sitting on the side of the bed. She denied Mr. Robinson was having sex with her at this time. Defence counsel asked when, during the incident, Mr. Robinson struck her with the fan pole. Ms. J.H. stated that when she was trying to get her pants on, he grabbed her and threw her to the floor and he hit her with the fan pole after he choked her.

33Ms. J.H. could not give clear evidence of the chronology in time between Mr. Robinson smashing into the wall, her being hit with the fan and she and Mr. Robinson sitting on the side of the bed before Ms. Boyer knocked on the door.

34Defence counsel confirmed with Ms. J.H., and she agreed, that being hit with the fan was important to her account and was clear in her memory. Then defence counsel put to Ms. J.H. that she did not mention being hit with the fan at the hospital or to the police in the police interview, less than two days after the attack, or at the preliminary inquiry about a year-and-a-half later. The notes of the two officers who came to her home did mention the fan but noted only that Ms. J.H. said she broke the fan during the altercation. Ms. J.H. said she did not recall saying that to the police.

35The first time Ms. J.H. mentioned that Mr. Robinson struck her with the fan was when testifying in-chief at trial. Even though she claimed she received an abrasion on her head that was caused by a fan pole attack, she did not think to mention it before trial.

36Ms. J.H. responded that she could not believe she would forget to mention that and said that when she saw the fan at trial in the scene of crime photos, her memory was revived of being hit with it. Ms. J.H. insisted she told the police but they did not put that in their notes.

37Defence counsel used the photos and hospital medical report exhibits to challenge Ms. J.H.’s evidence about the various attacks she alleges Mr. Robinson inflicted.

38Defence counsel reminded Ms. J.H. that her evidence was that Mr. Robinson pressed his forearm on her neck, choked her with both hands, punched her in the head causing goose eggs, maybe punched her in the face, threw her on the floor and hit her with the fan pole. Ms. J.H. agreed those were rather vicious attacks. But the medical record does not report any injuries to her neck, face, the back of her head or any other part of her body, except two small abrasions above her left forehead.

39Ms. J.H. responded she told the hospital about the attacks but they must not have reported them. The defence also pointed out that the police did not mention any injuries in their notes. Again, Ms. J.H. said the police must have failed to note her injuries.

40Defence counsel turned to the photos. Ms. J.H. agreed that nearly two days after the incident, the photos show only two small scratches above her left forehead. She agreed there were no marks on her forehead, on her neck, and no goose eggs were visible.

GERI BOYER’S EVIDENCE

41Ms. Boyer lives in the same building as Mr. Robinson at 510 Dawes Rd. She lives in apartment 301. In the early morning hours of April 9th Ms. Boyer was visiting her friend, Amanda, at unit 407, 510 Dawes Rd. They were smoking weed that night.

42Ms. Boyer testified she had only seen Mr. Robinson a few times before the incident, just to say “hello” in passing. She did not know his name. Mr. Robinson had only lived in the building a couple of weeks. However, Ms. Boyer said she was aware Mr. Robinson was under COTA’s supervision and that he had mental health issues.

43Ms. Boyer had no involvement with what happened in relation to Ms. J.H.’s allegations. Ms. Boyer came into the picture after the alleged sexual assault occurred. All the court has is Ms. J.H.’s evidence about her sexual assault allegations.

44Around 2:00 a.m. Ms. Boyer heard someone screaming and yelling “help”. The sound was coming from downstairs. She thought she recognized the voice. She went to the window and yelled, “Is that you, J.H.?” The response was, “Yes, It’s me. I’m in 307”. Ms. Boyer said she then ran downstairs with Amanda. Under examination-in-chief and cross-examination, on a number of occasions, Ms. Boyer repeated that all she heard Ms. J.H. scream was “Help me! I’m in 307.” Ms. Boyer testified she did not know what Ms. J.H. needed help with. She just knew a woman needed help and she went to her aid.

45Ms. Boyer stated she banged on the door and yelled to open the door. A man opened the door slightly then tried to close it. Ms. Boyer said she “booted” the door and Mr. Robinson went stumbling backwards. She then jumped on him and punched him in the face.

46Ms. Boyer made a number of statements that were contrary to Ms. J.H.’s evidence.

47Unlike Ms. J.H., who gave a number of versions of where she was when her friend knocked on the door, Ms. Boyer said she saw Ms. J.H. on the couch wearing only a top when the door opened. Amanda ran to help Ms. J.H. and they ran out the door while Ms. Boyer held Mr. Robinson down. Ms. Boyer then ran out behind them. Mr. Robinson was yelling, “I’ll kill you! I’ll kill you!” Unlike Ms. J.H. who said she never saw Mr. Robinson again, Ms. Boyer testified Mr. Robinson followed them up the stairs and continued yelling threats. Also unlike Ms. J.H., Ms. Boyer testified Mr. Robinson had on light blue boxer shorts when he answered the door. He was not naked.

48Ms. Boyer believed Mr. Robinson’s threat was directed at her because she was the one who punched him and interrupted his “good time.” Ms. Boyer went back to her apartment. She said she could hear him out in the hall yelling, “I’m going to kill you bitch. You fucking white bitch. I’ll pistol whip her. I’ll kill her!”

49Ms. Boyer was afraid for her life so she went to report what happened to the COTA personnel who advised her to call the police. Mr. Robinson was still yelling obscenities and threats when Ms. Boyer called the police at about 4:00 a.m. Ms. Boyer indicated that she told the police what happened. She suggested to Ms. J.H. that she talk to the police since it was she who caused the circumstances that got her involved.

50Ms. Boyer testified that Mr. Robinson did not go to her door or call out her name when he was uttering the threats. Ms. Boyer agreed Mr. Robinson referred to being ripped off for money during his tirade and that he could also have had a grievance against Ms. J.H.. So the threats could have been directed against Ms. J.H.. Nonetheless, Ms. Boyer was convinced Mr. Robinson was threatening her with death because she punched him in the head.

ANALYSIS

51I found Ms. J.H.’s evidence suffers from both credibility and reliability problems. Her evidence revealed inconsistencies in relation to material areas of the incident she alleged occurred in the early hours of April 9th.

Sexual Assault

52Critically, Ms. J.H.’s evidence was inconsistent on the issue of consent to sexual activity and when and if consent was given.

53At trial, Ms. J.H. maintained she consented to the sexual intercourse for about 30 minutes until it began to hurt and she asked him to stop and he refused. To the police at her home and in her video interview her evidence was that from the beginning Mr. Robinson either forced her to take her pants off or he took them off, pushed her onto the bed and had sex with her against her will. Ms. J.H. said she did not recall saying that to the police less than two days after the incident.

54There is inconsistent evidence as to when the non-consensual sex began. This is also a critical contradiction that goes to the heart of her allegations. At trial, Ms. J.H. said the consensual sex ended when she pushed him off the bed and he landed on the floor. Later in her testimony, she contradicted this saying that while he was on the floor she was also on the floor and he was forcing sex on her.

55Another significant area of inconsistency with respect to the sexual charges is the evidence Ms. J.H. gave about the amount of money she negotiated for her services and the amount if any she received from Mr. Robinson. In the beginning of her trial evidence she was adamant she never took a date without getting money upfront. However, Ms. J.H.’s testimony on this vacillated widely, so much so that in the end it is not clear how much she received, whether $20.00 or nothing, or the $50.00 she said she originally negotiated. In the end, she testified she just did not recall.

56Ms. J.H. was also adamant at trial that she never had sex with a client without a condom. She insisted the condom never came off during sex with Mr. Robinson. The evidence she gave at trial contradicted what she previously told the police and stated in her videotaped police interview. She previously stated that the condom came off or he took it off and she had grabbed and held onto his bare penis.

57I cannot accept on the evidence I received that the Crown has proven beyond a reasonable doubt that Mr. Robinson committed sexual assaults on Ms. J.H. contrary to s. 271 of the Criminal Code.

Common Assault and Choking

58There were also critical credibility and reliability problems with the common assault and choking allegations.

59Ms. J.H. alleges vicious physical attacks inflicted by Mr. Robinson. She accuses him of pressing his forearm on her neck, choking her with both hands, punching her repeatedly on the top of the head causing goose eggs, and/or punching her in the face, throwing her off the bed, and hitting her on the head with the fan pole causing an injury to her head. It is particularly problematic that not until trial did she mention being hit with the fan. Also, she mentioned only to the police, but not at trial until being cross-examined, that Mr. Robinson punched her in the face.

60Going to the heart of the credibility of her allegations about the physical assaults is the fact the photos do not reflect the immensity of the attacks she described. They show only two small red scratches above her left forehead. There are no visible goose eggs, no red marks or bruises on her face or neck. There are no photos showing injuries to the back of her head or to any other part of her body.

61I do not find that the Crown has proven beyond a reasonable doubt that Mr. Robinson assaulted Ms. J.H. contrary to s. 266 of the Criminal Code. I also cannot find that the Crown has proven beyond a reasonable doubt that Mr. Robinson choked Ms. J.H. with the intent of committing a sexual assault contrary to s. 246(a) of the Criminal Code.

Unlawful Confinement

62Ms. J.H. testified that when she told Mr. Robinson she no longer wanted to have sex and wanted to leave, he told her no one was leaving. She said he put his forearm against her neck, choked her, and punched her in the head to stop her from going. She testified that when she was trying to put her clothes on he also hit her with the fan pole to stop her from leaving. As I found above, I did not accept her evidence about the attacks.

63I cannot find that the Crown has proven beyond a reasonable doubt that Mr. Robinson unlawfully confined Ms. J.H. contrary to s. 279(2) of the Criminal Code.

Utter Death Threat against Ms. Boyer

64The words uttered must be meant to intimidate or to be taken seriously: R. v., Clemente, 1994 49 (S.C.C.), [1994] 2 S.C.R. 758 at p. 4, (S.C.C.). They must be considered in the context in which they were spoken or written, in light of the person to whom they were addressed and the circumstances in which they were uttered.

65The words should be viewed on an objective basis and the meaning attributed to the words should be that which a reasonable person would give to them: R. v. Clemente, at p.4. Whether the accused intended the threat to be taken seriously will often be based upon looking at the words used by the accused”: R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, at p. 78, (S.C.C.). Further, it is of no relevance whether the accused was capable of carrying out the threat: R. v. LeBlanc, [1989] 1 S.C.R. 1583 1989 56, (S.C.C.).

66I found Ms. Boyer testified credibly and forthrightly about what she experienced at 510 Dawes Rd. early in the morning of April 9th. I think she was trying her best to assist the court to arrive at the truth of what she witnessed. Ms. Boyer said Mr. Robinson uttered the words that he would kill her and he would pistol whip her.

67I believe Mr. Robinson would have been extremely angry. After all, a woman, someone he had seen a few times but did not know barged into his apartment, jumped on top of him, punched him in the face and knocked him onto the floor of his apartment. Given my findings that he had not committed the other offences alleged against him, it must have been a shock for him to be attacked in his own place by a strange woman.

68Ms. Boyer and Ms. J.H. said he was drinking, that he smelled of alcohol and seemed drunk. Ms. Boyer testified in her previous encounters with him he appeared to have some mental health issues. This seems reasonable given his residency in a COTA administered premises. Ms. Boyer testified credibly about the words she heard him utter and I believe he uttered those words.

69The words used by Mr. Robinson were threats to cause death. Ms. Boyer did not know him. She had just heard her girlfriend’s cries to be rescued from him. She testified she did not know if he had a firearm. Ms. Boyer thought because of his mental health issues she could not predict what he was capable of. She thought he was serious and that she should take him seriously.

70I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Robinson uttered a threat to cause death to Ms. Boyer contrary to s. 264.1(1)(a) of the Criminal Code.

Breach of Recognizance

71By an Agreed Statement of Facts filed with the Court, it is conceded that on June 9, 2016 Mr. Robinson was bound by a term of a recognizance requiring him to remain in his residence during certain time periods of the day. At count 3 on the indictment, he is charged that on April 9, 2016 he failed without lawful excuse to remain in his residence between the hours of 11:00 p.m. and 6:00 a.m. It is further agreed by the parties that Mr. Robinson breached that condition and that the Crown need not call any witnesses with respect to that count on the indictment.

72I therefore find Mr. Robinson guilty on count three on the indictment.

VERDICT

73I am not satisfied the Crown has proven Bryan Robinson’s guilt beyond a reasonable doubt on counts 2, 4, 5 and 6 on the indictment and acquittals will be entered accordingly.

74I am satisfied the Crown has proven Bryan Robinson’s guilt beyond a reasonable doubt on counts 1 and 3 on the indictment and convictions will be entered accordingly.

B.A. ALLEN J.