COURT FILE NO.: CR-17-0018-00
DATE: 2018-05-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Stacey Hamilton, for the Crown
- and -
KEVIN NICKOLI KUZMICH
Gilbert L. Labine and Kate D. Brindley, for the Accused
Accused
HEARD: March 12, 2018
Madam Justice B. R. Warkentin, R.S.J.
Reasons for Judgment
[1] The accused, Kevin Kuzmich, stands charged with one count of sexual assault. He is alleged to have engaged in non-consensual sexual intercourse with the complainant, E.S. (there is a publication ban with respect to the identity of the complainant that remains in force) between May 11 and 12, 2016 contrary to s. 271 of the Criminal Code.
[2] The evidence at trial was that E.S. initially consented to sexual intercourse, however, as intercourse began, she asked the accused to stop and tried to push him away, unsuccessfully. The accused claims the entire sexual encounter was consensual and has pled not guilty to the charge.
Allegations and Circumstances at Trial
[3] The complainant, E.S. died prior to the trial. In a ruling on November 17, 2017, I found in favour of the Crown’s application to permit the evidence of E.S. from the preliminary inquiry on March 27, 2017 to be entered at trial pursuant to s. 715 of the Criminal Code. E.S. had given her evidence in the preliminary inquiry under oath and she was cross examined by counsel for the accused. Her evidence at trial was introduced by the transcript from the preliminary inquiry and the audio-tape of that evidence was played.
[4] E.S.’s evidence from the preliminary inquiry was as follows:
a) The accused resided in a rooming house where E.S. occasionally visited with friends and relatives of hers who lived there. She had been visiting her friends and relatives in that rooming house for at least a couple of years prior to the night in question.
b) E.S. claimed she knew the accused because he supplied her with marijuana. She claimed that she regularly purchased marijuana from the accused when she visited that rooming house.
c) On the evening in which the alleged sexual assault occurred, E.S. was visiting a friend named Seppo, a neighbour of the accused. She walked from her home and brought some beer with her and arrived around 11:00 pm. She testified she had probably consumed about three beers prior to walking to the rooming house and that she brought about six beers with her.
d) E.S. had recently broken her right wrist and had a cast on that arm. In May 2016 she claimed that she weighed approximately 120 pounds. At the preliminary inquiry she testified she weighed only 85 pounds.
e) It was E.S.’s plan on May 11, 2016 to share some beer and some marijuana with Seppo. In order to do that, she first stopped at the accused’s apartment to purchase marijuana. E.S. claimed that she gave the accused $20.00 and the accused invited her into his apartment and then he left briefly to get the marijuana. While he was gone she watched TV in the accused’s apartment. E.S. initially denied that she had had a beer with the accused, but then later stated she could not remember.
f) When he returned, the accused gave E.S. the marijuana which she pocketed. She attempted to leave and the accused blocked her exit. E.S. found herself trapped near his bed and couldn’t move.
g) She believed that the accused wanted sex with her and so she tried to unbuckle her pants, but because of her broken wrist, could not manage. She claimed that she could not hear what the accused was saying to her because the music in the apartment was too loud, but because of the way he was acting and due to being trapped against the bed, she understood that he wanted sex.
h) She did not recollect exactly how her pants came to be undone and removed, however she realized her pants were around her ankles and the accused then lifted her onto the bed and spread her legs, pushing her knees up to her chest.
i) E.S. claimed that the accused was pushing his penis inside her vagina and that it was painful, so she told him to stop and told him that he was hurting her. She claimed he stopped briefly, but then resumed with intercourse even after she had told him that she wanted him to stop and that he was hurting her. She attempted to push him with her non-injured hand, but that was ineffectual.
j) E.S. alleged that when he was finished, the accused helped her off the bed and she dressed and she went next door to see her friend Seppo.
k) E.S. told Seppo about what had happened and that she had been hurt and Seppo convinced her to speak to the police. She was initially reluctant because she was concerned about the accused being a drug dealer and possible harm to herself. Seppo reminded her that if the accused had sexually assaulted her, then he might harm other women and it was this reasoning that convinced E.S. to speak with the police.
[5] Constable Brayden Beck testified regarding his interview with E.S. on the night of May 11, 2016. While any statements made to him by E.S. are hearsay and not considered for the truth of their contents, they are relevant as to the narrative of the events that occurred on the night of May 11 and early morning of May 12, 2016. The defence has asked this court to consider the discrepancies between what E.S. is said to have told Constable Beck and her evidence in the preliminary inquiry. Constable Beck’s evidence was as follows:
a) Constable Beck arrived at the rooming house just before midnight on May 11, 2016 in response to the call by E.S. to the police. He found E.S. in the communal kitchen area on the main floor of the rooming house and found her to be very distraught.
b) Constable Beck found that E.S. did not appear to be intoxicated. He found her emotional but coherent in answering his questions. After her initial statement in the kitchen area, he went to the room of the accused and arrested him for sexual assault.
c) Constable Beck then returned to the kitchen with E.S. and accompanied her in an ambulance to the hospital. He stayed with her until approximately 2:20 am when she was seen by a doctor and sexual assault nurse.
d) Constable Beck testified that E.S. told him that she had had a beer with the accused in his apartment but that before she was able to finish the beer, the accused instructed her to remove her pants and then proceeded to sexually assault her.
e) Constable Beck reviewed the notes he made at the time he was interviewing E.S. He indicated that E.S. told him that the accused left the apartment and when he returned it was with marijuana which he then gave her.
f) Constable Beck’s notes indicated that E.S. told him while they were on the way to the hospital, in the ambulance, that the accused and E.S. then smoked a joint together but that before she could finish her beer, the accused told her to pull down her pants and that she complained to Constable Beck that she did not want to cooperate with the accused and when she asked the accused why he wanted her to take off her pants he told her that he was going to fuck her.
g) Constable Beck stated that E.S. told him that it was the accused who pulled her pants down.
h) Constable Beck testified that E.S.’s story about the sexual assault was consistent throughout the various times he spoke to her and questioned her regarding the events. He described E.S. as being very skinny and frail and increasingly more emotional as he spoke with her.
[6] The accused testified and claimed that the sexual encounter was consensual. In his defence he provided the following evidence:
a) The accused testified that he had known E.S. for more than 10 years and that she often came to the rooming house where he resided to visit other residents. He knew she often visited Seppo who lived in the room next to his. He claimed that E.S. occasionally also visited him, but not often.
b) The accused denied that he ever sold or provided marijuana to E.S. and specifically denied having provided her with marijuana on May 11 or 12, 2016.
c) The accused claimed that E.S. arrived at his apartment close to midnight on May 11, 2016 carrying a case of 12 tall cans of beer and that she was barefoot.
d) He stated that E.S. offered him a beer and he invited her in where they both had a beer from her 12 pack of Lakers tall cans. He could not tell if the case was full, but noted that she was carrying the case in her good hand and that her right hand was in a cast.
e) He said they sat in the two chairs in his apartment and watched music videos; that he left briefly to use the washroom down the hall and that when he returned E.S. had removed her pants and he watched as she removed her underwear and then maneuvered herself onto the bed.
f) He claimed that she had kept her other clothing including her socks on. Once on the bed she lay back on the pillows, spread her legs and patted her vaginal area.
g) The accused claimed he was surprised by her actions, but he believed by her actions she was initiating sexual intercourse. The accused finished his beer, removed his shorts and mounted the bed and began penetrating E.S.’s vagina with his penis.
h) He confirmed that E.S. asked him to stop because he was hurting her and testified that as soon as she asked him to stop, he did.
i) The accused claimed that the sexual encounter lasted approximately five seconds. He testified that he then immediately got off the bed and wiped his genitals. He intended to offer a cloth to her, but E.S. was already off the bed, putting on her underwear.
j) The accused stated that E.S. did not put her pants back on, but instead draped them, which he described as being black and a light fabric, over the arm with the cast, that she grabbed her case of beer and left. He testified that he asked her for one of the beers but she refused to give him one.
k) The accused stated that it was about 15 minutes after this encounter that he heard a knock on his door. He thought it was E.S. returning and was surprised to see the police.
Analysis and the Law
[7] Whether or not there is a finding of guilt depends on whether or not I find that when E.S. asked the accused to stop penetrating her because he was hurting her, he did or did not stop. The evidence of both E.S. and the accused was consistent on the point that the sexual intercourse was painful to E.S. and that she asked the accused to stop. In other words, they agreed that she withdrew her consent to sexual intercourse after first consenting.
[8] If I find that the accused stopped when asked, then he would be found not guilty of sexual assault. If I find that he did not stop when he was asked to stop, then he will be found guilty of sexual assault.
[9] For the reasons provided below, I find that the accused did not stop when he was asked to stop and as such I find him guilty of sexual assault.
[10] The resolution of this case depends primarily on the credibility of the complainant and of the accused. However, a determination of guilt or an acquittal must not devolve into a mere credibility contest between two witnesses in a trial. In assessing the evidence, I must do so in a global fashion, assessing the evidence as it develops and as a whole.
[11] The Court may believe all, none or some of a witness' evidence.
[12] In assessing the evidence in this case, I have reviewed the legal principles in the Supreme Court of Canada’s decision of R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 that sets out the test for determining credibility at paragraph 28 as follows:
“First, if you believe the evidence of the accused, you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
[13] In this trial, there is the added issue of whether or not the evidence of E.S. should be provided the weight it would have had she been present and testified at trial and had been subject to cross examination at trial.
[14] There is little jurisprudence to inform this court as to the weight to be accorded a key witness, in this case the complainant of an alleged sexual assault, when that evidence is provided from prior testimony given at a preliminary inquiry. Neither the Crown nor defence counsel was able to direct me to any case law in this area.
[15] Counsel for the defence argued that the weight given to E.S.’s evidence should be limited because cross examination by the defence at the preliminary inquiry was restricted for tactical purposes and as such E.S. was not cross-examined on inconsistencies in her evidence between that given in the preliminary inquiry and that provided in her statement to the police. In addition, also for tactical reasons, the defence had not put their theory of the case to E.S. at the preliminary inquiry, in particular that the accused had stopped when asked to stop the sexual encounter. Nor did they cross examine E.S. on any of the other anticipated evidence of the accused where it contradicted her testimony.
[16] The defence described three inconsistencies between the evidence of E.S. and that of the accused that the defence argued were critical inconsistencies, as follows:
a) E.S. claimed she visited the accused for the sole purpose of purchasing marijuana from him whereas the accused testified that he never sold marijuana to E.S. or to anyone else, but rather E.S. was there on a social visit to hang out.
b) The accused testified that it was E.S. who initiated the sexual activity. It was less clear from E.S.’s evidence about which of them initiated the sexual activity but that she responded to what she believed was a suggestion by the accused that he wanted to have sex with her. E.S. testified she attempted to unbuckle her pants, but was not sure how they came to be unbuckled and removed.
c) Finally, E.S. testified that she told the accused to stop when the sexual intercourse became painful and he stopped briefly, but then resumed in spite of her protests whereas the accused testified that he stopped immediately when asked to stop, about 5 seconds after the intercourse began.
[17] Counsel for the defence argued that the accused’s evidence was given in a straightforward, consistent manner that was essentially unchallenged on cross-examination and as such he should be believed and acquitted under the first branch of W.D.
[18] Counsel for the defence also submitted that even if the accused is not believed, he should still be acquitted because of the inconsistencies in the evidence of E.S. at the preliminary inquiry and that of the evidence of Constable Beck and the accused as set out above. The defence argued that because of these inconsistencies, the accused should be acquitted because there is a reasonable doubt as to his guilt under both the second and third branches of W.D.
[19] The defence argued that when assessing the weight to be given to the evidence of E.S., in considering the second and third branches of W.D. the court should specifically consider the discrepancies of her evidence in the preliminary inquiry when compared to the evidence of Constable Beck as to what E.S. told him.
[20] It was the defence position that notwithstanding that what E.S. told Constable Beck is hearsay and may not be used as confirmatory evidence of E.S.’s allegation that she was sexually assaulted, the discrepancies may be considered when determining whether or not I am left in reasonable doubt of the accused’s guilt or whether there is sufficient evidence that I do accept to be convinced beyond a reasonable doubt of the guilt of the accused.
[21] The most significant discrepancies between E.S.’s statement to Constable Beck and her evidence in the preliminary inquiry more than 10 months later was the fact that E.S. told Constable Beck that she was having a beer with the accused but unable to finish it because he told her to take off her pants. Her evidence in the preliminary inquiry was slightly different in that she first stated she did not have a beer with the accused and that she could not hear what he said to her because of the loud TV, but that it was by his body language and other conduct that she understood meant he wanted to have sex with her.
[22] It was apparent from listening to the audio tape of the evidence from the preliminary inquiry that E.S. appeared to be having some difficulty understanding some of the questions posed to her about who drank her beer and when. This is interspersed throughout her evidence. An example of this can be seen in the following exchange during cross-examination (pages 16 and 17 of Exhibit 2):
Q. So you saw Seppo after you went into Kevin’s room?
A. Yeah I went there after.
Q. So when you went to Kevin’s room you were carrying with you you said at least six cans of beer?
A. I had, I had beer.
Q. Were you carrying at least six cans of beer?
A. I’m not too sure.
Q. Okay so…
A. I…
Q.…I don’t understand why you you go to Kevin’s place with six cans of beer?
A.….I don’t know. All I know is Seppo told me that he drank my beer so I don’t know if I took, if I had my beer with me or not.
Q. Well Seppo told you that Kevin drank your beer?
A. Yeah.
Q. When did he tell you that?
A. When I’m when, when I called him. He told me that he drank my beer.
Q. Okay when you called him?
A. Yeah.
Q. You called him on the telephone?
A. Yeah.
Q. When did you call him on the telephone?
A. After my rape.
Q. Were you carrying a cell phone with you?
A. No I called him from home.
Q. Okay so the sexual assault takes place. You leave, go home, call Seppo?
A. No I went to Seppo’s after this.
Q. So after…
A. And then I went and told him that Seppo (sic) hurt me down there and he’s gonna call the cops.
Q. Okay but when did Seppo tell you that Kevin drank your beer?
A. No he, Seppo drank my beer.
Q. Oh okay so you, you…
A. Yeah Seppo drank my beer and I was gonna go in there and go have some dope with him.
[23] The defence submitted that as a result of these inconsistencies and the fact that the defence was unable to cross examine her on them at trial, minimal weight ought to be accorded to E.S.’s evidence such that even if I do not accept the evidence of the accused, the court should not find him guilty because there is not sufficient credible and reliable evidence to support a finding of guilt and I should be left with a reasonable doubt.
[24] While there is limited jurisprudence on the weight to be accorded evidence entered from a preliminary inquiry, a useful instruction is found in Watt’s Manual of Criminal Jury Instructions, 2nd edition (Toronto: Thomas Reuters, 2015), Mid-Trial 8-A, Evidence Previously Given (Code, s. 715), at p. 155. This instruction applies to evidence previously given which has been deemed admissible under s. 715 of the Code as was the evidence of E.S. in this trial:
[1] (NOW) gave evidence at (describe proceedings), but is not available to testify here. A court reporter recorded his/her testimony. It will now be read to (played for) you, and will be evidence for you to consider in deciding this case.
[2] It is up to (for) you to decide how much or little you will believe of or rely upon this evidence. You may believe and rely upon some, none, or all of it in deciding this case. When you consider this evidence, however, remember that you did not see or hear this witness (NOW) testify. Consider as well whether there is any real dispute about what (NOW) said in his/her evidence.
[25] In assessing the evidence in this trial, I accept the defence position that there were tactical reasons why defence counsel may not have attacked the credibility of E.S. at the preliminary hearing, and therefore that the cross-examination that was conducted may not have been as extensive as it would have been had E.S. testified at the trial, even though there was a full opportunity to do so. I agree that this is a factor that goes to the weight to be accorded the evidence of E.S. (See R. v. Li, 2012 ONCA 291, at paras. 68, 69, 71).
[26] Notwithstanding that E.S. was not available for cross-examination at trial, counsel for the accused had the opportunity to make reference to any inconsistencies between E.S.’s testimony at the preliminary inquiry, the statement she made to Constable Beck and the discrepancies between E.S.’s testimony and the evidence of the accused.
[27] In reaching my conclusion of the guilt of the accused, I did consider the inconsistencies and the discrepancies as noted by defence counsel.
[28] Those discrepancies were, in my view, relatively minor and insignificant and not sufficient to undermine the reliability or credibility of E.S. as to the alleged behaviour of the accused.
[29] As already noted, when listening to the digital audio recording of the testimony of E.S. she often did not understand the question being posed, particularly in cross-examination.
[30] Similarly, the inconsistency in Constable Beck’s notes where E.S. described how the accused demanded sex whereas at the preliminary inquiry E.S. testified that she could not hear what the accused was saying but understood that he wanted sex is also, in my view relatively insignificant in light of the time that had passed between the time of the incident and her evidence in the preliminary inquiry.
[31] I find these inconsistencies as well as the others identified by the defence to be minor in light of the evidence that I do accept.
[32] The fact that E.S. reported the sexual assault immediately after it occurred adds weight to her testimony regarding the assault. In addition, she was not shaken on her evidence of what her plans had been the night in question or that she only ever visited the accused to purchase marijuana from him. She admitted to having smoked marijuana and shared a beer with the accused in the past, however, it was clear from her evidence that the accused was her supplier and not a friend with whom she partied.
[33] Conversely, I did not find the evidence of the accused to be believable. In particular, the fact that he claimed not to be a supplier of marijuana to E.S. His testimony on this point does not make sense because there was no other reason for E.S. to be in his apartment. The accused confirmed in his evidence that he and E.S. were only acquaintances who saw each other in the hallway on occasion when E.S. visited his neighbour, Seppo. That E.S. would stop at the accused’s apartment on this occasion and without encouragement, undress, climb on the bed with a broken wrist and then invite the accused to have sex with her is equally not believable.
[34] Similarly, that the accused stopped penetrating E.S. immediately upon request also does not ring true. I accept the evidence of E.S. that she attempted to have the accused stop, that he did briefly, but then resumed the sexual contact. The fact that E.S. told both Seppo and then the police that the accused failed to stop when she asked him to, immediately after the incident supports her credibility.
[35] When testifying in the preliminary inquiry, her evidence was unshaken regarding her attempts to have the accused stop penetrating her. The defence did not point to any discrepancy in her testimony on this point as it pertained to the statement she provided to Constable Beck.
[36] In summary, I do not accept the evidence of the accused that he stopped engaging in sexual intercourse when asked to do so. I did not find his evidence on this point to be credible or reliable in light of the evidence that I do accept.
[37] I find that, on the whole of the evidence, the Crown has proven the elements of sexual assault as against E.S. beyond a reasonable doubt. Therefore, based upon the evidence before the Court as I have found it, I am convinced beyond a reasonable doubt of the guilt of the accused.
[38] Accordingly, I find Mr. Kuzmich guilty of sexual assault.
Madam Justice B. R. Warkentin, R.S.J.
Released: May 23, 2018
COURT FILE NO.: CR-17-0018-00
DATE: 2018-05-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Plaintiff
- and –
KEVIN KUZMICH
Defendant
REASONS FOR JUDGMENT
B. Warkentin R.S.J.
Released: May 23, 2018