CITATION: R. v. D.R., 2017 ONSC 7767

COURT FILE NO.: 16-DV6797

DATE: 2017/12/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.R.

Accused

COUNSEL:

Julien Lalande, for the Crown

Samir Adam, for the Accused

HEARD: June 12, 13, 14, August 17 and 23, 2017

Subject to any further Order by a court of competent jurisdiction, an Order pursuant to S. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

Reasons for Decision

L. SHEARD J. (Orally)

[1] D.R. is charged with three offences:

(i) that between June 15 and June 30, 2016 at the City of Ottawa he committed an assault on N.G., and caused bodily harm to her, contrary to section 267, subsection (b) of the Criminal Code of Canada ( the “Criminal Code”);

(ii) that between June 15 and June 30, 2016 at the City of Ottawa he did, in committing an assault on N.G., wound, maim, disfigure or endanger the life of N.G. and did thereby commit an aggravated assault contrary to section 268, subsection (2) of the Criminal Code; and

(iii) that between 15 June and 30 June, 2016 at the City of Ottawa he did commit a sexual assault on N.G., contrary to section 271 of the Criminal Code.

[2] D.R. pleaded not guilty to all three charges.

Overview

[3] At the outset of trial, D.R. admitted the fact of the physical injuries suffered by N.G., but not the causation.

[4] On June 20, 2016 N.G. and D.R. attended at the home of some friends, K.E. and K.M. N.G. states that while there, she was slapped and punched by D.R. and that he gave her a badly blackened eye, bloodied eyeball, and bruised her cheek and chin. Later that same evening, N.G. and D.R. were passengers in the friend’s van. They fell out and wrestled on the ground. D.R. jumped back into the van, told his friend to drive off, and N.G. was run over by the van. N.G. did not seek medical treatment for her injuries and spent three nights at the friends’ home. She says on the third night, D.R. suggested they have sex. She refused. N.G. says that D.R. ignored her refusal and had sex with her. These three events give rise to the criminal charges against D.R.

[5] While the injuries to N.G. are admitted, the defence position is that there was no assault by D.R. and that N.G.’s injuries were all caused by the van incident, which was an accident.

[6] There were four witnesses called at trial: The Crown witnesses were N.G. and her father, G.G. The defence called K.E. and K.R. The accused did not testify.

[7] N.G. was the principal witness for the Crown. The credibility and reliability of the witnesses, and in particular of N.G., is central to a determination of guilt or innocence.

Background

[8] As at June 20, 2016, N.G. and D.R. had been living together since November 2014. They were raising N.G.’s young child from a previous relationship and a baby of their own. In May 2016, the child protection agency in Québec, (the “DPJ”) became involved with the family and in early June, 2016, the children were placed with N.G.’s parents, who also supervised access.

[9] N.G. described an abusive relationship with D.R. She said he verbally and physically abused her daily and that by June and July 2016 she feared for her life daily. N.G. stated that she concealed her injuries with makeup and her parents, who saw the couple frequently, did not know of the physical abuse.

Charge #1: Events of June 20, 2016

[10] N.G. and K.E. were the only two trial witnesses in a position to give evidence about what happened at K.E.’s home in the early evening of June 20, 2016. Their evidence of events is fairly close, except that K.E. denies seeing any drugs used, denies that D.R. struck N.G., and denies seeing any injuries to her at all that evening until after the van “incident”.

[11] As the injury to N.G.’s eye is admitted, the issue to be determined with respect to charge #1, is whether the eye injury was caused when D.R. hit her in the face at K.E.’s home or when she was run over by the van later that evening.

N.G.’s Evidence

[12] N.G.’s evidence was that she and D.R. made plans to spend one or two nights at the home of K.E., his wife, K.M. and their son, C., aged 21. K.E. was a long-time friend of D.R. and known to N.G. She and D.R. were upset about “losing” their children and planned to “hang out and have some drinks” in order to get their minds off things.

[13] N.G. stated that on June 20, 2016, she and D.R. went to K.E.’s home. On the way, they stopped at the liquor store and bought a bottle of Crown Royal for D.R. and some vodka coolers for N.G.

[14] They arrived at K.E.’s home in the early evening and K.E. and D.R. immediately began drinking the Crown Royal. N.G. drank one of her coolers and started a second one. Within a couple of hours, the Crown Royal was finished. N.G. said that D.R. was also snorting cocaine in front of her, K.E., and K.M.

[15] According to N.G., D.R. was using two cell phones that evening. She believed one phone was used for selling drugs and grabbed it from D.R. He took that hand and squeezed it so tightly that the cell phone screen cracked. N.G. stated that D.R. then stood up and slapped her in the face with all his strength and punched her in the face and head. N.G. said that one of D.R.’s blows broke the lens out of her eyeglasses, which flew off her face. He then grabbed her hair so she could not run away and began punching her “as hard as he could.” She estimated that she was punched at least 15 times. She tried to curl up in the fetal position on the floor to shield herself from the blows.

[16] N.G. stated that all this took place in front of K.E. and K.M. N.G. stated that her screams led to C. coming out of his upstairs bedroom and down the stairs. According to N.G., C. was upset at what was happening and yelled at D.R. who then stopped hitting N.G. D.R. apparently turned to her and stated that C. was now going to hate him and that they would not be invited back to the K.E.’.s home.

[17] N.G.’s evidence was that D.R.’s strike to her eye left her with a very black eye and burst blood vessels in her left eyeball. At trial, she asserted that she still has pain in her left orbital bone and thought it had been cracked, although she had no medical proof.

[18] On June 26, 2016, N.G. used her cell phone to take pictures of her face, arm and legs. In one of the photographs, N.G.’s left eye is seen to be purple and black and there is also a blood blister on the white of her eyeball. This photograph is poor quality but does also appear to show bruising on N.G.’s left cheek and chin. This photograph only shows the left half of her face.

K.E.’s Evidence

[19] K.E. agreed that D.R. and N.G. argued while at his house and that N.G. was “loud” but denied that she was struck by D.R. K.E. denied seeing any injury to N.G.’s eye that evening and stated that the only injury he saw on N.G. that night was to her leg, after she had been run over by the van.

[20] K.E. stated that C. did not like it when K.E.’s friends came over. He claimed that C. stayed in his room the whole evening and witnessed nothing and that his wife, K.M., went to bed relatively early.

[21] In his examination-in-chief, K.E. denied seeing a cell phone or witnessing any argument about a cell phone. However, in cross-examination, K.E. conceded that he may have seen a cell phone and that an argument between N.G. and D.R. at his home could have been about a cell phone.

[22] Although K.E. denied the key allegation that D.R. slapped and punched N.G., his evidence generally corroborated the evidence of N.G. about the events at the K.E.’s home. Significantly, much of the corroboration came out in cross-examination on which K.E. either changed his answer or conceded that N.G.’s memory of events was possible.

Credibility of Witnesses

[23] As stated at the outset, a determination of the credibility and reliability of the witnesses is crucial in this case. The credibility and reliability of the witnesses, and, in particular, of N.G., cannot be gauged solely on their demeanour in court. The Court must subject the evidence given by each witness “to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness… must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.…”[^1] Further, the Court must look for some confirmatory evidence, where such evidence should have been available; consider inconsistencies and contradictions in the witness’s testimony; that their memory may not be accurate; and the absence of evidence to support their testimony in key areas.[^2]

[24] As will be seen throughout these Reasons, the evidence of both K.E. and K.R. was lacking in both credibility and reliability.

[25] K.E. admitted he had a poor memory of the events of June 20, 2016 and his evidence in chief was often shaken on cross-examination. I also have serious doubts about the truthfulness of his evidence. Most importantly, I do not accept K.E.’s testimony that D.R. neither slapped nor punched N.G. K.E. did confirm the evidence of N.G. that she drank, at most, two vodka coolers and did not appear drunk but I do not fully believe K.E.’s other testimony as to the consumption of alcohol or drugs consumed that evening. On those issues, he either changed his evidence in cross-examination or his evidence did not make sense in the context of the portions of his evidence that was believable and reliable.

[26] K.R. was even less credible than K.E. He was openly hostile to the Crown, and ultimately stormed out of the courtroom when he felt he had answered enough of the Crown’s questions. K.R. also acknowledged that he had lied in his statement to police. By itself, this admission of deliberate dishonesty all but destroys K.R.’s credibility. Except in so far as it is consistent with, or corroborates other reliable evidence, I give no weight to K.R.’s evidence.

[27] There are other reasons to reject the evidence of K.E. and K.R. For example:

(a) Both have lengthy criminal records that include convictions for fraud;

(b) Both are long-time friends of D.R. and both expressed a somewhat negative view of N.G. I conclude that K.E. and K.R. are loyal to D.R. and, possibly, also fearful of him, and would be inclined to give evidence they thought would be helpful to D.R.;

(c) K.E. acknowledged that his memory of events was “bad”;

(d) On numerous occasions on cross-examination, K.E. changed or purported to correct the evidence he had given on examination-in-chief;

(e) On cross-examination, K.E. was caught in a lie: he denied that he had seen D.R. on August 5, 2016, the night of his arrest, but when confronted with evidence that on that night D.R. was using K.E.’s cell phone to send text messages to N.G., K.E. “remembered” that he had lent him his cell phone and had driven D.R. to a strip club that evening;

(f) The evidence of K.E. conflicted in significant ways from the evidence of K.R. Although K.R. was clearly a problematic witness, he was careful not to implicate K.E. or D.R. when he described the use of the cocaine; and

(g) On many occasions the accounts of events given by K.E. and/or K.R., were self-serving, for example, that K.E.’s wife and son saw nothing; implausible, for example, that K.E. was unaware that drugs were used throughout the evening of June 20, 2016; and inconsistent with the other reliable evidence, for example, K.R.’s assertion that N.G. brought cocaine to his apartment and used it with him.

[28] Given my findings about K.E.’s credibility, I specifically accept the evidence of N.G. that she was slapped and punched by D.R. reject the evidence of K.E. that it did not happen.

[29] In assessing N.G.’s overall credibility, I considered G.G.’s evidence that he saw his daughter three or four times a week and never noticed any injuries on her. N.G.’s evidence was that she was beaten daily and that her injuries had to be concealed by makeup. However, G.G. did confirm that N.G. and D.R. had almost daily verbal conflict. He described it as “tempers flaring” just about every day between them. I accept that N.G. concealed her injuries from her parents and that D.R. was unlikely to have beaten N.G. in the presence of her parents. For those reasons, I cannot conclude that the fact that G.G. did not see any assaults on, or injuries to, his daughter materially undermines her credibility or her evidence about regular abuse, both emotional and physical.

[30] While it is possible that N.G. may have exaggerated the number and strength of D.R.’s blows, I accept her evidence that this is when, and how, she got a black eye and a bruised cheek and chin.

Analysis and Disposition: Charge # 1

[31] For D.R. to be found guilty of assault causing bodily harm under section 267 (b) of the Criminal Code, the Crown counsel must prove each of these essential elements beyond a reasonable doubt:

(i) that D.R. intentionally applied force to N.G.;

(ii) that N.G. did not consent to the force that D.R. intentionally applied;

(iii) that D.R. knew that N.G. did not consent to the force that D.R. intentionally applied; and

(iv) that the force D.R. intentionally applied caused N.G. bodily harm.

[32] Based on the evidence that I accept, I find as a fact that, on June 20, 2016, and while in the E.M’.s home, D.R. did intentionally apply force to N.G. by striking her in the face with his hands and fists, without N.G.’s consent, which force did thereby cause her bodily harm.

[33] I therefore find D.R. guilty of Charge #1.

Charge #2: Events of June 20, 2016 after departing from the K.E.’s home

[34] N.G. and K.E. agreed that following the loud argument, N.G., D.R., and K.E. decided to leave the K.E.’s home. They ended up at the apartment of K.R., a long-time friend of both K.E. and D.R. and someone known to N.G.

[35] K.E. and N.G. agreed that: K.E. drove the three of them to K.R.’s apartment in a utility van; the utility van had two seats in front and a milk crate between them acted as a third seat; and that, upon arrival, D.R. was first person out of the van. K.E. thought D.R. sat on the milk crate but given that D.R. was the first out of the van, I accept N.G.’s evidence that she was seated on the milk crate and D.R. was in the front passenger seat. Although little turns on this evidence, N.G.’s accurate recollection of this detail adds to the reliability of her evidence. Similarly, it supports my finding that K.E.’s memory of events is unreliable.

[36] N.G. stated that even before the van had stopped, D.R. leapt out of the van and ran to the side of the building. K.E. agreed that N.G. was next out of the van and that, because of the arguing between N.G. and D.R. during the drive, he decided to wait for a few minutes in the van before going into K.R.’s apartment. This sequence of events conflicts somewhat with K.E.’s evidence this was an impromptu social visit on an old friend. The more plausible explanation, which is borne out by later events as described by N.G., is that that D.R. had arranged with K.R. to go to his apartment to obtain drugs.

[37] N.G. stated that, as she followed D.R., she heard a smash and believed that D.R. had smashed the window in the side door of the building to open it. She entered through the same door and met up with K.E., who had entered through the front door.

[38] K.R. stated that he had left the back door open for D.R. This evidence is consistent with that of N.G., who stated that neither she nor D.R. entered the K.R.’s apartment building through the front door. K.R. also confirmed that the window in the back door was broken, but asserted that it had been broken days earlier. Again, N.G.’s recollection of this detail reinforces the reliability of her memory.

Arrival at K.R.’s Apartment

[39] According to N.G., she and K.E. entered K.R.’s apartment together. K.R. was there, in his wheelchair, and D.R. was pacing. N.G. stated that K.R. gave a blue ecstasy pill to D.R. who ran with it to the bedroom. K.R. also stated that D.R. went into K.R.’s bedroom shortly after arrival.

[40] The evidence of K.E., which I do accept, is that K.R. was known to have a history of drug addiction. K.R. testified that he had struggled with drug addiction and, also, that he had snorted cocaine that evening.

[41] Taken as a whole, the evidence of N.G., K.E., and K.R. leads me to accept that the events occurred as described by N.G.: D.R. ran into K.R.’s apartment; K.R. was expecting him; K.R. handed him a pill, which N.G. believed to be ecstasy; D.R. took that pill with him into the bedroom; and when he emerged, D.R. no longer had the pill.

[42] For the most part, N.G.’s description of the events to this point in the evening of June 20, 2016 was corroborated by the testimony of K.E. and K.R. I find as facts that: K.R. was expecting D.R.; D.R. hurried into the K.R.’s apartment; and that this was more than just a social visit on an old friend, as described by K.E.

Drugs and Assault at K.R.’s Apartment

[43] According to N.G., when D.R. emerged from the bedroom, he was pacing, “talking in circles” and “getting amped up”. When everyone tried to calm him down, D.R. began choking K.R. When K.E. intervened, D.R. slapped him. When N.G. tried to intervene, D.R. slapped her. N.G. stated that K.E. and K.R. suggested that D.R. might calm down if he had some crack cocaine.

[44] N.G. stated that there was crack cocaine in the apartment and that when they were in the kitchen, K.E. had offered to “cook” the crack for D.R. D.R. wanted to do it himself, so he took over the “cooking”. Only D.R. consumed the crack.

[45] K.E. asserted that he had spent most of the time alone, in the kitchen of K.R.’s apartment. He denied seeing any drugs or alcohol in the apartment but, on cross-examination, admitted that it was possible that drugs were consumed, but that he did not see it.

[46] By contrast, K.R. volunteered that he snorted cocaine in the kitchen. K.R. asserted that the cocaine was brought by N.G., who also snorted the cocaine while D.R. was lying down in K.R.’s bedroom, to stay away from “nagging N.G.”

[47] N.G. denied that she uses hard drugs. K.E. also stated that he did not believe N.G. was impaired in the evening. In addition, in his evidence, G.G. testified that he did not believe his daughter used hard drugs or, except on rare occasions, over-consumed alcohol. G.G.’s evidence on this point is credible and reliable. He saw N.G. frequently and was in a position to know her drug/alcohol habits. Also, despite that she is his daughter, G.G. stated that he had a difficult relationship with N.G. and expressed fondness and sympathy for D.R. For those reasons, I found him to be an impartial witness vis-à-vis N.G.

[48] I accept the evidence of N.G. that she did not use cocaine or crack cocaine on June 20, 2016. I specifically reject the evidence of K.R. that the cocaine came from N.G. or that she used it. N.G.’s evidence about her non-use of hard drugs and her limited use of alcohol was supported by her father’s evidence.

[49] I also accept the evidence of N.G. that crack cocaine was “cooked” in the kitchen and smoked by D.R. I do not accept K.E.’s evidence that he did not see D.R. or N.G. do any drugs. Rather, I conclude that K.E. was not being truthful when he said that he was mostly by himself while in K.R.’s apartment. I conclude that K.E. was trying to protect himself from possible repercussions by claiming that he was not in a position to see anything illegal that might have taken place in K.R.’s apartment.

[50] K.E. and K.R. both denied seeing any injuries on N.G. They also denied that D.R. tried to choke either of them and denied seeing D.R. strike N.G. I do not believe them.

[51] According to N.G., while they were at K.R.’s apartment, she took D.R. into the bathroom, where the lighting was better, to show him that her face was blackening up. According to her, D.R. remarked “that’s not good at all.” I believe this evidence.

[52] K.R. said that after taking cocaine, they all pretty much left. That evidence conflicts with the evidence of N.G. and K.E. that they, and D.R., exited and entered K.R.’s apartment more than once before finally leaving and driving away in the van.

[53] According to N.G., while at K.R.’s apartment, D.R. took K.E.’s keys, ran outside, got into the van and started it. K.E. and N.G. ran after D.R. K.E. did not want D.R. to drive his van. To prevent him from doing so, N.G. stood behind the van and refused to move. Ultimately, D.R. turned off the van and returned K.E.’s keys and they all returned to K.R.’s apartment. According to N.G., K.E. thanked her and said that she was a “good girl”. I believe her. The latter detail contains a distinctive ring of truth: N.G. is in her mid-20’s and close in age to K.E.’s son and it is believable that he would use those words to her. Further, given the evening described by N.G., it is understandable that she would remember this positive comment directed at her.

[54] K.E. also described leaving and re-entering K.R.’s apartment more than once that evening but denied that D.R. took his keys and started the van. On those events, I prefer the evidence of N.G.

[55] Despite some conflict between their evidence, to a significant degree the events as described by K.E. are consistent with N.G.’s evidence. To the extent their evidence does conflict, I prefer and accept the evidence of N.G.

Events after Leaving K.R.’s Apartment

[56] N.G. stated that when she, K.E., and D.R. left K.R.’s apartment, D.R. was still being “erratic”, so she and K.E. agreed that D.R. should be sit between them on the milk crate. As they were driving, N.G. said that D.R. was screaming and incoherent and that she raised her voice, telling him to calm down. While the van was still moving, D.R. told her to get out. She refused. According to N.G., D.R. kept pushing her against the door, using his foot against her and reaching around and opening her seatbelt and the door. She was holding onto D.R. so as not to fall out of the moving van.

[57] K.E. agreed that D.R. sat on the milk crate. He also described arguing between N.G. and D.R. K.E. said that N.G. was being loud and that as he pulled into the laneway near his home, he changed his mind about bringing N.G. and D.R. back to his home and instead backed out of the laneway to take them home. K.E. stated that D.R. and N.G. were still arguing when he stopped at a stop sign and told them both to get out of the van and to take a taxi home.

Complainant is Run Over

[58] According to N.G., when the van stopped at the stop sign, D.R. opened the door and tried to push her out. She wrapped her arms around D.R., “holding on for dear life”, and when the van stopped, she and D.R. fell out of the van together. K.E. agreed that when he stopped the van at the stop sign, D.R. and N.G. tumbled out of it together. K.E. did not know which one of them opened the door.

[59] N.G. said that she and D.R. fell out of the van to the ground. She had her legs wrapped around D.R., and ended up on top of him. N.G. stated that D.R. then jumped on top of her and punched her, splitting her lip. N.G. said that each time she tried to get up, D.R. wrestled her down and pinned her on her stomach. She said he punched her face, hit her as many times as he could using both hands, and that his right elbow hit her lip. When she tried to get up, D.R. overpowered her and pushed her down with both hands, ultimately putting her half-way under the van.

[60] N.G. stated that while she was lying on the ground, D.R. got up and she grabbed hold of his right ankle and told him she did not want to be left there. N.G. stated D.R. shook off her grip and was climbing back into the van when he yelled at K.E. to “go, go, go!” N.G. stated that she was then half-way under the van. When the van began to move, she felt the tire on her foot. N.G. tried to crawl away but the van drove up her thigh, her spine and her shoulder. She was able to move enough to avoid her head being run over.

[61] N.G. stated that she was on her stomach between the front and the back tires and part of her body was under the van, including her head, shoulders and leg. She could not see K.E. and did not think that her saw her. However, N.G. was certain that D.R. looked right at her and saw that she was partially under the van when he told K.E. to drive away. N.G. thought that D.R. wanted her to get run over.

[62] According to N.G., as the van began a U-turn, and she felt the tire touching her foot and rolling up her leg, she started screaming. According to N.G., the van continued to make a U-turn and then stopped a short distance away.

[63] K.E. stated that he stopped the van when he realized that he might have run over N.G. D.R. then got out of the van, pulled N.G. up, and, according to N.G., told her to “be quiet”, and helped her onto the floor in the back of the van. He sat in the front passenger seat. N.G. said that K.E. immediately apologized to her. She was asked if she wanted to be dropped off at a hospital but asked for ice. Minutes later they arrived at the K.E.’s home at which point, according to N.G., D.R. told her “I hate you.”

[64] N.G. did not seek medical attention for several days.

[65] To a significant degree, K.E. and N.G. agree on what happened up to when she and D.R. tumbled out of the van. K.E. stated that he could not see N.G. or D.R. after they fell; that when D.R. jumped back into the van and told him to “Go, go, go”, K.E. still could not see N.G. K.E. started to make a U-turn and stated that he did not know how N.G. ended up under the van, but assumed that she tripped and fell. K.E. was clear that he did not intend to run over N.G.

[66] The evidence of N.G. and K.E. on this important event requires close examination. Based on the undisputed evidence, it is clear that the van ran over N.G.’s left arm and her right leg. The photographs vividly show bruising consistent with a tire tread on N.G.’s upper left arm and the lower half of her left arm and on the inside of N.G.’s right upper right thigh all the way down the left side of her right leg, and ankle. There is bruising on her right foot extending at least to the arch of her foot. The photographs also show her left wrist and thumb wrapped in a thick tensor bandage. N.G. described this as a partial cast.

[67] N.G.’s description of the events leading up to her falling out of the van is consistent with the evidence from K.E. N.G.’s evidence that D.R. wanted her out of the van and wanted to keep her out of the van while he got back into it, is also corroborated by K.E., who said that D.R. told him to drive the van while N.G. was on the ground and not visible to K.E.. The obvious and reasonable conclusion is that D.R. intended to leave N.G. behind. N.G.’s evidence that D.R. was climbing into the van while she was still on the ground is also corroborated by K.E.

[68] At this point in the sequence of events, K.E.’s version of events, or, at least, what he claims to have seen, is difficult to accept. K.E. stated that D.R. jumped into the vehicle, told him to go, at which point K.E. saw N.G. get up and grab onto the door of the van. He assumed that she then must have tripped and fallen under the van.

[69] K.E. described the van as a straight panel van with no windows in the sides, just a window in the driver’s door. On cross-examination, his evidence was that he did not know where N.G. was but that he had “seen her get up and grab onto the side of the door.” It is difficult to reconcile K.E.’s evidence that when D.R. was getting into the van and yelled at K.E. to “go!” K.E. did not see N.G. at that moment, with his evidence that, as he was driving away, he was able to see N.G. stand up and grab onto the door.

[70] To believe K.E., one would have to accept that, although he could not see her while she was on the ground, he was able to see N.G. get up, despite that: it was nighttime and dark; D.R. was getting into the van via the front passenger door and would have somewhat obstructed K.E.’s view; that the passenger door has no window; and, at the time he purported to observe N.G., K.E. was also driving the van, acting upon D.R.’s direction to “go, go, go!”

[71] K.E.’s version of these events is also somewhat inconsistent with N.G.’s injuries: the photographs show bruising from N.G.’s upper arm to the arch of her foot. In other words, the van ran over the length of her body, which is consistent with her evidence that she was lying partially under the van when it was driven over her.

[72] K.E.’s version of this event is also inconsistent with his evidence that he did not intend to, or believe that he would, run over N.G. In cross-examination, K.E. agreed that if somebody had their hand on the door handle and the car began to move, there was a risk they would stumble and fall. It is impossible to accept K.E.’s evidence that he knew that N.G. was hanging on to the side of the door, and drove the car anyway, without rejecting his evidence that he did not expect to run her over.

[73] I accept K.E.’s evidence that he did not expect, nor intend, to run over N.G. According to N.G., K.E. was upset to discover that he had run her over. He apologized to her when she got back into the van and did so a number of times after that. N.G. attributed no blame or fault to K.E.; she knew that he could not see her when he began to drive the van.

[74] I accept N.G.’s version of how she came to fall out of the van. I believe her, that D.R. was trying to push her out of the van and asked her to get out while the van was moving.

[75] I reject the defence suggestion that N.G. simply fell out of the van when D.R. was trying to get out. Had D.R. truly been trying to get out of the van and away from her, he could have exited the van and kept on going. Instead, based on the combined evidence of N.G. and K.E., I find that once they were both out of the van, D.R. prevented N.G. from getting back into the van, jumped back into the van himself, and told K.E. to drive away, leaving N.G. on the ground.

Evidence of G.G.

[76] As part of this case, the Crown called N.G.’s father as a witness. For the most part, his evidence was unhelpful: G.G. acknowledged that he had a hard time discerning what he was told, from what he believed had taken place.

[77] G.G. spoke with D.R. about the van incident and formed a belief that his daughter had been pushed out of the vehicle by D.R. He assumed that D.R. had lost his temper because he was resentful of being “chaperoned” by N.G. and that tempers spun out of control. However, G.G. was clear that D.R. did not admit to him that he had pushed N.G. out of the van and that D.R. described her injuries as accidental.

[78] Based on the evidence that I accept, I find as a fact that:

(a) N.G. fell out of the van because she was pushed by D.R.;

(b) N.G. and D.R. ended up on the ground;

(c) D.R. applied force on N.G., against her will, to keep her on the ground;

(d) as result of the use of force by D.R., N.G.’s body was positioned partially under the van;

(e) when D.R. told K.E. to “go, go go!” he intended K.E. to operate the van; and

(f) when he told K.E. to “go”, D.R. could see that N.G. was positioned partially under the van.

Injuries Suffered on June 20, 2016

[79] N.G. testified about the injuries she suffered from being run over by the van. As verified by her photographs, N.G. had significant bruising and swelling on her right leg and foot, and on her left arm and hand. She stated that that she had a crushed hip and almost no cartilage left in her right hip, which was still swollen, almost one year after being injured. N.G. stated that she must use a cane because of these injuries (as she did at trial) and that an MRI disclosed that she has degenerative arthritis which she did not previously have. N.G. also said that she still has hematomas in her legs and that they start to get better and then fill up again.

[80] There is no dispute that N.G. spent approximately 2½ weeks in hospital as a result of the injuries she suffered from the van. D.R. concedes that N.G. was maimed as a result of being run over by the van. I find that the injuries were serious and disabling and have left N.G. with a limp and fall within the definition of the injuries as set out in s. 268(1) of the Criminal Code.

Analysis and Disposition: Charge # 2

[81] Crown and defence counsel were in agreement as to the elements of the offence of aggravated assault. The defence articulated that the offence must be established by proving an intention to apply force to the complainant i.e. intention to run over her and the objective foresight that she would suffer bodily harm as a result. The defence submitted that the offence of aggravated assault could be made out even if D.R. did not intend for N.G. to be run over by the van but if he were found to have been aware of the danger posed to N.G. by her proximity to the van and yet persisted in telling K.E. to put the van in motion, which created an objectively foreseeable risk of bodily harm to N.G.

[82] The defence position is that N.G. was preventing D.R. from leaving the van and as a result they both tumbled out of the van and that when D.R. jumped into the van and told K.E. to “go, go, go!”, he was acting in self-defence: N.G. had grabbed onto his ankle and he was trying to shake off her grip and remove himself from a “volatile situation” to protect “his own bodily integrity.” Further, when faced with the risk of being “subjected to a continued assault by N.G.” D.R. could not have foreseen that K.E. would make a U-turn and run over N.G. Therefore, the risk of harm to N.G. was not objectively foreseeable. Finally, the defence submits that it is unreasonable to impute an obligation on D.R. to ensure that the van was being operated in a safe manner and to find him criminally liable on that basis.

[83] The evidence does not support the defence theory that D.R. was acting in self-defence. It does support the version of events as described by N.G.: that D.R. was trying to get her out of the van.

[84] I find as a fact that D.R. assaulted N.G. while the two of them were inside the van and that his assault continued outside the van when he pushed her to the ground and tried to hold her on the ground. I conclude that D.R. knew that N.G. was on the ground and partially underneath the van and that when he told K.E. to “go” he intentionally applied force - the operation of the van - knowing that to do so would put N.G. at risk of bodily harm.

[85] Even if I were to accept the defence submissions, which are not supported by the facts as I have found them, D.R. knew that N.G. was on the ground - he had shaken off her grip from around his ankle – and was, at best, reckless and/or wilfully blind to where N.G. was lying on the ground when he told K.E. to “go”. In such circumstances, a reasonable person would have foreseen that telling K.E. to operate the van would result in hurt or injury to N.G. that would interfere with her health or comfort in a fashion that was more than merely transient or trifling in nature.

[86] Both the Crown and defence relied on R. v. Godin[^3], which sets out the mental element that must be established for aggravated assault. Godin was applied in the 2016 decision of R. v. Duperron [^4] in which the court stated:

The mens rea requirement for aggravated assault is objective foresight of the risk of bodily harm. The Crown does not have to prove that the accused actually intended the serious injury that resulted. The Crown must prove that a reasonable person would inevitably have realized that the assault in question would subject the person struck to the risk of bodily harm. This is a modified objective standard, and the reasonable person must be put in the circumstances the accused found herself in when the events occurred in order to assess the reasonableness of the conduct: see R. v. Godin, 1994 CanLII 97 (SCC), [1994] 2 S.C.R. 484at 485; R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, and R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3.

[87] The definition of recklessness can be found in R v. Sansregret[^5] in which the court stated that “for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term ‘recklessness’ is used in the criminal law and it is clearly distinct from the concept of civil negligence.”

[88] In R. v. Smith[^6], wilful blindness was defined in the criminal context to require:

“…a finding that the accused, knowing he had reason to suspect that a certain state of affairs existed, deliberately declined to make the inquiries necessary to confirm that state of affairs preferring instead to remain ignorant of the true state of affairs. This is a subjective state of mind and justifies the imposition of criminal culpability: see D. Stuart, Canadian Criminal Law (4th ed.) at pp. 228-31; R. v. Rashidi-Alavije (2007), ONCA 712 at paras. 22-24 (C.A.).

[89] Although the evidence satisfies me otherwise, even if it could be argued that D.R. did not know that N.G. was partially under the van, he had to have known that she was perilously close to the van and was wilfully blind to the risk of bodily harm to N.G. when he told K.E. to drive away.

[90] For clarity, based on the evidence that I accept, I conclude that N.G. was on the ground and partially under the van, because D.R. had put her there. Further, I conclude that when D.R. told K.E. to “go” he intended that the van be put into motion and he knew that by doing so there was a risk that N.G. would suffer severe bodily harm and that she would be run over by the van. Yet, he continued to tell K.E. to drive the van. I find that the risk of bodily harm to N.G. was known to D.R. and objectively foreseeable.

[91] Further, although I have found as a fact that D.R. did see N.G. and knew where she was when he told K.E. to drive, were the principle of wilful blindness to apply, I would conclude that D.R. had good reason to suspect that N.G. was partially under the van, or so close to the van that she was at risk of being run over if the van were driven, and that D.R. deliberately declined to check where N.G. was, preferring instead to remain ignorant of her location on the ground beside the van, when he asked K.E. to “go!” By that instruction, D.R. indirectly applied the force of the van to N.G., the actus reus of assault.

[92] Even if I were to accept the defence position that D.R. did not know where N.G. lay on the ground and did not know the direction that K.E. would drive the van, the evidence that I accept satisfies me beyond a reasonable doubt D.R. was aware of the danger posed to N.G. by her proximity to the wheels of the van and yet persisted in telling K.E. to drive the van, when he knew that N.G. would thereby face the risk of being run over.

[93] Based on my application of the law to my findings of fact, I conclude that the Crown has proven beyond a reasonable doubt that: D.R. intentionally applied force to N.G. (by telling K.E. to put the van in motion); against her will; knowing that it was against her will; intentionally wounded, maimed, disfigured or endangered her life, knowing that the risk of bodily harm was foreseeable; and actually wounded, maimed or disfigured N.G.

[94] The Crown need not prove that the injury that was actually suffered by N.G. was objectively foreseeable but only that the risk of bodily harm to N.G. was objectively foreseeable.

[95] I conclude that the Crown has met its onus and I find D.R. guilty of Charge #2.

Charge #3: Sexual Assault

Elements of the Offence

[96] For D.R. to be found guilty of sexual assault under section 271 of the Criminal Code, the Crown must prove beyond a reasonable doubt that D.R. intentionally applied force to N.G.; that she did not consent to the force he intentionally applied; that he knew that she did not consent to the force he intentionally applied and that the force that he intentionally applied took place in circumstances of a sexual nature.

The Evidence

[97] N.G. stated that after the van incident, she and D.R. spent three nights at K.E.’s home. N.G.’s injuries were treated with ice packs.

[98] N.G. said that on June 20 and 22, 2016, she slept in the basement of the E.M’.s home on a makeshift bed consisting of a few comforters and pillows on the floor. N.G. stated that she was only able to get up to use the bathroom but stayed mostly in the living room. She was tended to by K.E. and Ms. M., who brought her ice and water. D.R. also stayed at the E.M’.s home.

[99] N.G. stated that on the third night, she was in the basement bed surrounded with ice packs, and ready for sleep, when D.R. came downstairs. He suggested they have sex. She told him she did not want to, that she was sore. Despite that, D.R. moved her ice packs, undressed himself, and then undressed N.G. She stated that she repeatedly told him “No” but that nothing she said “fazed” him and D.R. forced her to engage in sexual activity all night, including intercourse and oral sex. N.G. is the only trial witness to these events, although K.E. did confirm that N.G. and D.R. slept in the basement on the third night.

[100] Having accepted the evidence of N.G. concerning her treatment by D.R. on June 20, 2016, I believe N.G. when she states that D.R. was unfazed by her telling him she did not want to have sex. Based on the nature and extent of her injuries, I fully believe N.G. that she was very sore, bruised, surrounded by ice packs, unwilling to have sex, and that she told D.R. “No”.

[101] Based on the evidence that I accept, I find that D.R. knew that N.G. did not consent to have sex with him on June 22, 2016: that she told him “No”. I reject any notion that her “No,” was equivocal because she did not physically resist him and acquiesced to the inevitable. For D.R. to have believed that N.G. was consenting, although she said “No”, and in the face of her severe and painful physical injuries, he would had to have been wilfully blind to her lack of consent or reckless as to whether or not she had consented.

[102] There is no suggestion by N.G. that D.R. was violent in forcing sexual physical contact on her, nor is violence an essential element of this offence: the offence is made out even if the force applied is gentle, if it was applied in circumstances of a sexual nature, but done without N.G.’s consent.

Events after June 23, 2016

[103] The events that occurred after N.G. and D.R. left the E.M’.s home do not give rise to any further criminal charges. However, they may be relevant to the issue of credibility, and, in particular, to the credibility of N.G. and, in particular, to the defence theory that N.G. reported to police in retaliation for D.R. having cheated on her or having visited their infant daughter accompanied by a new female friend.

[104] On June 23, 2016, N.G. and D.R. left the K.E.’s home and went to D.R.’s mother’s home. N.G. said that D.R. wanted her to tell his mother that her injuries were caused by a four-wheeling accident. According to N.G., she felt she had no choice but to go along with the story because on previous occasions D.R. had told her that if he got into trouble because of her, he would kill her, or get someone to do it for him.

[105] When N.G. first saw her parents after being run over, she and D.R. also told them the same story about a four-wheeler accident.

[106] After being seen by clinic doctors and her own doctor, N.G. was admitted to hospital on July 9, 2016 for treatment of the swelling in her legs. Drainage tubes were put in her legs and N.G. was required to remain in hospital until July 25, 2016. While in the hospital, N.G. stated that she and D.R. had sex, which, she said, was the first consensual sex they had had following the van incident. Upon discharge from the hospital, N.G. returned to the home she shared with D.R. According to N.G., she did not want to continue living with D.R., but was fearful of what he would do to her if she left him.

[107] N.G. stated that on her first evening home, D.R. threw a [t.v.] remote and a knife at her. On July 27, 2016, D.R. and N.G. attended together at her parent’s home. There, D.R. hit her on the back of her head. This seemed to be the breaking point for N.G. When D.R. was in the basement speaking to her father, she yelled down at D.R. that she was “sick of him” and “done with him”. After that outburst, N.G. said that she then checked D.R.’s phone and discovered explicit text messages exchanged between him and another woman. She then yelled down the stairs at him again that she knew what was going on and, again, that she was “sick of this”.

[108] N.G. stated that she overheard D.R. telling her father that she had been injured when she was run over by a van, but incorrectly told him that it happened when D.R. was trying to get away from her and N.G. grabbed the handle of the van and accidentally fell under it.

[109] While D.R. was speaking to G.G., N.G. spoke privately with her mother. She, also, revealed that her injuries were caused when she had been run over by a van. In her evidence, N.G. intimated that she also told her mother about what had been going on for last 2 ½ years between her and D.R. However, it is not clear from N.G.’s evidence what exactly she told her mother on that day about ongoing abuse by D.R. or what details she provided about how she had come to be run over by the van.

[110] After July 27, N.G. did not see D.R. again and understood that D.R. was staying with friends. Following the events of July 27, N.G. contacted the DPJ to tell them that she had ended her relationship with D.R. and that she would tell the truth about what it been going on. Sometime between July 27 and August 3, 2016 D.R. attended at the house to retrieve his things.

[111] In his evidence, G.G. stated that on August 1 and 2 he supervised D.R.’s access to his infant child, joined by “a blonde girl”. On the first visit, D.R. introduced her as one of his friend’s girlfriends. By the following day, D.R. did not pretend, and G.G. figured out that they were romantic partners.

[112] G.G. stated that he was still in denial that it was over between D.R. and N.G. He was concerned that his grandchildren were losing a father. He also thought of D.R. as his son-in-law and as a friend. At trial, G.G. expressed his ongoing sympathy toward D.R.

[113] When N.G. and her mother found out that G.G. had allowed D.R. to exercise a supervised access visit accompanied with a girlfriend, they were both angry and upset. G.G.’s wife insisted that such visits stop. On August 3, N.G. completed a police report in which she reported the events of June 20 and others. As a result, D.R. was arrested on August 5, 2016.

[114] On cross-examination, it was suggested to N.G. that she made a report to the police in retaliation for having discovered that D.R. was cheating on her and exercising child access with a new girlfriend. N.G. denied this and stated that she decided to report to the police following her August 3, 2016 session with her therapist. On that date, N.G. told her therapist about her relationship with D.R. and D.R.’s involvement in her being run over by the van. N.G.’s therapist advised that she was obligated to report information given to her by N.G. to the police. N.G. then agreed to make the report herself.

[115] N.G. attended at the police station to give a statement, after which it was determined that she should stay in a safe house. On August 5, 2016, N.G. was escorted to her home by a police officer so she could collect some of her things. N.G.’s cell phone was in the police vehicle when D.R. contacted her. The police officer told her to answer the call, hoping that D.R. would disclose his whereabouts, which would facilitate his arrest. According to N.G., the police officer wrote things on a notepad for her to say to D.R. who said he wanted to come to her house at noon. According to N.G., the police officer told her to hang up on D.R. when he began screaming at her.

[116] After the telephone call ended, and under the direction of a police officer, N.G. sent D.R. a text message. The police officer then responded to D.R.’s texts, pretending to be N.G. Later that evening, N.G. was advised that D.R. had been apprehended.

Do N.G.’s Statements to Police or Her Facebook Postings Undermine her Credibility?

[117] On August 3, 2016 N.G. provided the Gatineau police with a 12-page written statement and a three-hour videotaped statement. On August 9, 2016, she provided the police with a further eight-page written question and answer statement. These statements included sexual assaults by D.R. that had taken place in Gatineau, Québec, but did not include mention of the sexual assault that forms the subject of the criminal charge here.

[118] On cross-examination, N.G. stated that she thought she had mentioned the sexual assault of June 22 but confirmed that, in fact, she first mentioned it at the preliminary hearing. When asked why the alleged sexual assault of June 22 was not mentioned in any of her statements to police, N.G. responded that she thought she had mentioned it to a police officer with the Gatineau Police. Following a brief adjournment in the trial, inquiries were made and the Crown confirmed that N.G. had not disclosed the June 22, 2016 alleged sexual assault to Gatineau Police.

[119] On cross-examination, N.G. explained that her initial inability to pinpoint the date on which she been run over by the car and or sexually assaulted, was due to PTSD and Battered Spouse Syndrome. N.G. stated that the date of June 20 came to her before the preliminary hearing, but following therapy. By then she also had the benefit of the photographs and the dates on which she had attended at a local medical. She also explained that, following the accident, she had been taking pain medications and that, now that she has stopped taking those, her memory has improved.

[120] N.G. acknowledged that she had never told the DPJ that she had been abused by D.R. She explained that D.R. had told her that if she disclosed that to anyone he would kill her. N.G. also stated that she did not want to disclose a sexual assault when she, herself was, was not clear about the date on which the assault took place. Without that information, she did not think a charge would “hold.” N.G. also denied that she and D.R. jointly concocted the four-wheeling accident story because she did not want the DPJ to know about the use of drugs and alcohol or about the fighting between them. There was no evidence to contradict N.G.’s reasons for making up a story for how she sustained her injuries.

[121] I find N.G.’s explanations to be reasonable concerning why her report to Gatineau Police failed to mention the sexual assault of June 22, 2016 and why she did not mention it until a much later date. I do not find her omission or delayed report of the sexual assault of June 22 to undermine her reliability or credibility respecting the events that are the subject of Charge #3.

[122] N.G. was confronted with her Facebook postings, made while was in the hospital. In those, she describes a “wonderful visit with my amazing, gorgeous husband” and states “Can’t wait to go home and be with my man tomorrow!!” N.G. explained that she had posted these on Facebook to make it look like she and D.R. were living a normal life. She did not want to tell the world that she was a battered woman and going through a “living hell” and that he had put her in the hospital.

[123] Despite the events of June 20, 2016, on July 26, 2016, N.G. stated that she was still holding out hope that D.R. would get treatment for his drug addiction and that they could pull their lives together. But by July 27, 2016, N.G. wanted the relationship to be over and told her father that she did not want D.R. to see the children because he was taking drugs. N.G. also conceded that D.R.’s girlfriend was the last straw and that it was hurtful and infuriating that he had brought a new girlfriend with him on an access visit to her parents’ home in early August 2016.

[124] N.G. was also candid that, despite the prior events, until July 27, 2016 she still hoped that D.R. would stop using drugs, and that they could rehabilitate their relationship and live happily. While that optimism may appear ill-placed to an impartial observer, it does not in any meaningful way undermine the credibility or reliability of her evidence concerning how she sustained the injuries of June 20, 2016 or the events of June 22, 2016.

[125] The Court has considered the principles that apply to the assessment of credibility and concluded that N.G. is both a credible and reliable witness. In reaching that conclusion, the Court is alive to the potential that N.G. exaggerated the extent of the assault inflicted on her by D.R.; the potential that N.G. was angry that D.R. because he had cheated on her; and to the possibility that the report she gave to the police was in retaliation to D.R.’s behaviour. The Court has considered that N.G. did not mention the June 22 sexual assault when interviewed by the police on a number of occasions and was unclear about the dates of the van incident and the sexual assault at the home of K.E.

[126] N.G.’s credibility and reliability was not shaken in cross-examination. Moreover, the law is clear that in sexual assault cases, a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.[^7]

[127] Except as otherwise stated, when the evidence of K.E. or K.R. conflicts with the evidence of N.G., and I prefer the evidence of N.G.

Analysis and Disposition: Charge # 3

[128] In a criminal proceeding, the accused is presumed innocent and the burden of proving the guilt of the accused falls upon the Crown. The Crown must prove the case against the accused beyond a reasonable doubt. A reasonable doubt is one that is honest and fair based on reason and common sense. The Court must be certain or sure of the guilt of the accused before finding him guilty of the offence with which he has been charged.

[129] I accept N.G.’s evidence on these events and find that the Crown has met its onus of proving the elements of Charge #3 beyond a reasonable doubt. I therefore find D.R. guilty of Charge #3.

L. Sheard J.

Delivered Orally: December 6, 2017

[^1]: See R. v. M.G., 1994 CanLII 8733 (ONCA) [^2]: See R. v. H.P.S., 2012 ONCA 117 [^3]: 1994 CanLII 97 (SCC), [1994] 2 SCR 484 [^4]: 2016 ONSC 550, at para. 30 [^5]: 1985 CanLII 79 (SCC), [1985] 1 SCR 570, at para. 16 [^6]: 2008 ONCA 101, at para. 5 [^7]: R. v.. D.D., [2000] 2 SCR 274