ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Mangat, for the Crown
- and -
Q.B.
A. Edgar, for the defence
HEARD: February 20, 21 and 22, 2018, at Brampton
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
André J.
1Mr. Q.B. was charged on January 23, 2017 with one count of sexual assault and two counts of breach of probation after the police received a complaint from C.M.; an acquaintance of Mr. Q.B.. Following a judge-alone trial, in which C.M. testified about the alleged assault, I am required to determine whether the Crown has proven its case against Mr. Q.B. beyond a reasonable doubt.
SUMMARY OF C.M.’s EVIDENCE
2The 30-year old complainant lives in an apartment in the City of Brampton. She is on ODSP. Her boyfriend lived with her until January 21, 2017 when he moved to his own residence.
3Mr. Q.B., who was a friend of C.M.’s boyfriend, came to her apartment at 2:00 p.m. on January 21, after her boyfriend had left the apartment. He came to her apartment to ask for some clothing for his friend. C.M. gave Mr. Q.B. some clothes and a purse. Mr. Q.B. returned to the apartment, entered it and then raped C.M. in her bedroom. She could not recall how this happened.
4C.M. contacted the police who took her to the Brampton Civic Hospital. She wanted to cooperate with the police but they did not seem to be too interested in proceeding with her complaint. They made her “sign something” in the hospital’s triage unit. C.M. did not read the paper she signed. The police officers left her at the hospital.
5C.M. left the hospital the next morning and walked to her home. She found the document she had signed, which turned out to be a waiver, in her purse one month later.
6On January 23, 2017, Mr. Q.B. knocked on C.M.’s door at approximately 7:00 p.m. C.M. testified that she could not see through the peephole in the door because it was too high, and therefore could not see who was at the door. She therefore opened the door. Upon seeing Mr. Q.B., she asked him for her cigarettes because on January 20, 2017, she had given him $20 to purchase cigarettes which had originated on a First Nations reserve.
7Mr. Q.B. pushed his way inside her apartment. He locked the door with the sliding bolt. He grabbed C.M.’s waist and dragged her to the bedroom. He then pushed her towards the bed.
8Mr. Q.B. pushed the pillows on C.M.’s bed onto the floor. He pulled her clothes off and then removed his clothes. The clothing landed on a chair and on the floor in her bedroom.
9Mr. Q.B. initially tried to have sex with C.M. when her knees were against the bed. He then pushed her forward causing C.M. to fall onto the bed. He “flipped” her over and held her arms down. He put on a condom which C.M. saw. Mr. Q.B. proceeded to have non-consensual vaginal intercourse with C.M. He did so after he had forced her onto her back on the bed. She told him to stop because it hurt. Mr. Q.B. then ejaculated. Some of the ejaculation landed on C.M.
10Mr. Q.B. took the condom with him. He got dressed in her bathroom and then departed.
11After Mr. Q.B. left, C.M. got dressed and locked the door to her apartment. She sat there for two hours before she called the police. She did not shower before she did so.
12Two police officers came to C.M.’s apartment. They did not believe her account of what happened. She then said if they disbelieved her, she would call a detective she knew. One of the officers called her friend and only then did they proceed to take a statement from her. The officers also told her that they did not wish to hear anything about what Mr. Q.B. allegedly did to her on January 21, 2017.
13C.M. suffered no physical injuries as a result of the January 23, 2017 assault. She was taken to the Trillium Hospital where a “sex assault kit” was done. C.M. gave a videotaped statement on January 24, 2017 to the police concerning the January 23, 2017 alleged incident.
14A number of police officers testified about their interaction with C.M. on January 21 and 23, 2017.
ANALYSIS
15The Crown bears the burden of proving the charges against Mr. Q.B. beyond a reasonable doubt. Mr. Q.B. has exercised his right not to testify at his trial and no adverse inference can be drawn against him, given his failure to testify.
16I should also note that the charges of breach of probation relate to alleged violations of terms of a probation orders requiring Mr. Q.B. to keep the peace and be of good behaviour. Accordingly, the resolution of these charges is contingent upon the resolution of the charge of sexual assault against Mr. Q.B..
17In assessing C.M.’s testimony, I am also guided by the Court of Appeal’s observation in R. v. H.P.S., 2012 ONCA 117, [2012] O.J. No. 748, at para. 69 that:
I accept that reliability is not the same as credibility, that is well established. Crediblity has to do with the honesty or veracity of a witness’ testimony. Reliability has to do with the accuracy of a witness’ testimony.
18In assessing whether the Crown has proven its case against Mr. Q.B. beyond a reasonable doubt, I should note that the factors in assessing C.M.’s credibility are no different than in any other case. The rules relating to the assessment of a complainant’s credibility in a case involving an alleged sexual assault, are not relaxed or made to favour the complainant in this type of case. I am required to apply the same degree of scrutiny to a complainant’s testimony in a sexual assault case as that of any witness in another case involving different charges.
19That said, there are certain myths that must be guarded against in cases involving alleged acts of sexual assault. For example, defence counsel made much of the fact that C.M. did not scream or cry for help while being sexually assaulted. While this may be a factor in some cases, C.M.’s failure to scream is not factor that impugns her credibility.
20Second, defence counsel submits that C.M.’s failure to report the January 21, 2017 alleged sexual assault should weigh against her credibility. However, C.M. may have had a perfectly valid reason for not reporting the incident to the police. She is a vulnerable person with a disability who lives in an impoverished area of the city. It comes as no surprise if she wrongly believed that her complaint about being sexually assaulted would not be taken seriously by the police.
21Third, the fact that C.M. did not strike back or hurt Mr. Q.B. does not necessarily constitute proof that the alleged sexual assault did not occur. A victim of an assault can react to a violent assault in a plethora of ways including not fighting back against an attacker. Reacting to an alleged sexual assault in such a manner should not be used to impeach C.M.’s credibility.
22However, I must assess C.M.’s credibility by considering a number of factors including, but not limited to the following questions:
Is her testimony internally consistent?
Does it have an air of reality?
Are there any inconsistencies with her prior statements and if so, are the inconsistencies minor or significant?
Does her evidence conflict with that of other witnesses?
23Applying these factors to C.M.’s testimony raises many concerns about the reliability of her testimony. For example, C.M. testified that during the assault, Mr. Q.B. threw her pillows on the floor. She also testified that she did not clean up her apartment on January 23, 2017 before the police arrived. However, a photograph taken by an officer of C.M.’s bedroom after the alleged assault showed all the pillows on C.M.’s bed.
24Second, C.M. testified that her clothes were “pretty stretched after” the assault. However, Cst. Gary Mackin who saw C.M. at her residence on January 23, 2017, testified in cross-examination that he did not see that C.M.’s clothes were stretched.
25Third, C.M. testified that she told the sexual assault nurse that she had injuries following the assault. Meaghan Formosa, the sexual assault nurse who examined C.M. at the Trillium Hospital, testified that C.M. told her that she had no injuries on her body.
26Additionally, Ms. Formosa’s testimony contradicted that of C.M. in two other ways. She testified that C.M. told her that Mr. Q.B.’s penis touched her lips. Under cross-examination however, C.M. testified that Mr. Q.B.’s penis did not make contact with her mouth. Second, Ms. Formosa twice asked C.M. if her assailant had worn a condom during the assault. C.M. replied that she did not know. C.M. however, testified that she saw the condom used by Mr. Q.B. during the assault.
27There are other inconsistencies which, on their own, may not be significant, but which if viewed cumulatively, raise a reasonable doubt in this case. C.M. testified in-chief that she gave Mr. Q.B. a purse for his friend. She conceded in cross-examination however, that she had given him the purse to sell for her. C.M. testified that she is 5’3” tall and was too short to look through the peep hole on the door of her apartment. As a result, she did not know, on January 23, 2017, that it was Mr. Q.B. who was at her door. However, Cst. Mackin and Cst. Jane King testified that someone of that height would have had no difficulty looking through the peep hole. Furthermore, C.M. conveyed the impression that Mr. Q.B. had appeared unannounced at her apartment on January 23, 2017. C.M. however, told Cst. Jane King that on January 21, 2017 Mr. Q.B. attended her apartment to deliver cigarettes he had purchased on her behalf. She also told the officer that Mr. Q.B. returned on January 23, 2017 to deliver new cigarettes and that she knew that he was coming to deliver them to her apartment. Both officers denied that they told C.M. that they did not wish to hear about the sexual assault that allegedly occurred on January 21, 2017. To the contrary, Cst. King testified that C.M. did not want to report the January 21, 2017 incident.
28C.M. testified that she signed a document on January 21, 2017 but did not know its contents. Cst. Ravinder Gill was one of the officers who spoke to C.M. at the hospital on January 21, 2017. He testified that C.M. was not willing to cooperate with the police officers. They therefore had her sign a waiver indicating that she did not wish them to take any further action in the incident. The officer testified that the waiver was read to C.M. and that she read the document before signing it. This waiver was signed at the hospital at approximately 1:27 a.m. on January 22, 2017.
29Additionally, Cst. Zuniga testified with respect to the waiver which C.M. signed: “I remember going through it with her, word for word,” and that the entirety of the waiver was read to C.M.
30The fact that C.M. did not wish to cooperate with the police is not necessarily evidence that she made up her testimony about having been sexually assaulted. What is significant however, in the assessment of the reliability of her evidence, is her claim that she did not know what she had signed and her allegation that the police dissuaded her from filing a complaint about the alleged sexual assault.
31C.M. also testified that Mr. Q.B. pushed his way into her apartment on January 23, 2017. Cst. King however, testified that C.M. told her that she had let Mr. Q.B. into the apartment on that day. She also told the officer that following January 21, 2017, she continued to communicate with Mr. Q.B. because she wanted the cigarettes that he owed her. During the trial however, C.M. claimed that she had no contact with Mr. Q.B. between January 21, 2017 and January 23, 2017.
CONCLUSION
32Given the inconsistencies in C.M.’s testimony, I cannot find that the Crown has proven Mr. Q.B.’s guilt beyond a reasonable doubt. Accordingly, the charges are dismissed.
André J.
Released: March 12, 2018
COURT FILE NO.: CR-17-698-00
DATE: 20180312
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Q.B.
REASONS FOR JUDGMENT
André J.
Released: March 12, 2018