OTTAWA COURT FILE NO.: 15-DV6945

DATE: 2018/05/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

D.D.

Accused

Stephen J. Donoghue, counsel for the Crown

Ashish Duvadie, counsel for the Accused

HEARD AT OTTAWA: February 26, 27, 28, March 1, 2 and 7, 2018

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COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INcLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.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 JUDGMENT

RYAN BELL J. (orally)

A. Introduction

[1] D.D. is charged with possession of a knife for the purpose of committing an offence, committing an assault on the complainant using a knife, two counts of unlawful confinement, and four counts of sexual assault on the complainant.

[2] D.D. and the complainant were married in 1996. In 2007, they moved to the Ottawa area. There is no dispute that for many years, there were significant tensions in the marriage and that D.D. engaged in a number of affairs during the course of the marriage. D.D. and the complainant separated in May 2015.

[3] The Crown alleges that on four occasions – all in 2014 – D.D. sexually assaulted the complainant. On two of these occasions, D.D. is alleged to have unlawfully confined the complainant. The remaining two counts involve allegations that in the late summer of 2010, during the course of a heated argument, D.D. held a knife to the complainant’s throat.

[4] The complainant was the sole witness for the Crown. D.D. testified in his own defence. He denied all of the charges against him. According to D.D., throughout their marriage, the complainant was manipulative and controlling. He maintained that her repeated references to “rape” in text messages to him were intended to provoke him and to paint him as abusive to assist her position in any ensuing custody dispute.

[5] The other defence witnesses were D.D.’s sister, his fiancée, and S.R., a financial advisor.

[6] A number of documents were admitted into evidence, including a number of text messages and emails between D.D. and the complainant. D.D. denied that he sent three of these messages.

B. The Legal Framework

[7] In any criminal proceeding, the analysis begins with the presumption of innocence. D.D. is presumed to be innocent. It is only after consideration of all of the evidence and only if that evidence is found to establish guilt beyond a reasonable doubt that the presumption of innocence is set aside and a finding of guilt can be made. It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made, the Court must be sure that the offence was committed.

[8] To assist in the proper application of the burden of proof when there are competing versions of what happened, I have instructed myself in accordance with the Supreme Court of Canada’s direction in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352:

1. If I believe the evidence of the accused, I must acquit;

2. If I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit;

3. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[9] I have considered the credibility and reliability of the testimony of the witnesses. My assessment of credibility and reliability takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years earlier.

[10] I am mindful of inconsistencies and contradictions in the testimony of any witness. Consistency is an element of truthful testimony, but I do not expect perfection in a witness’ testimony. Significant inconsistencies or contradictions, however, can in some circumstances result in a witness’ testimony being rejected in whole or in part.

C. The Evidence

1. The Complainant’s Testimony

[11] The complainant and D.D. met in early 1994 and married in November 1996. They had a daughter and a son. In April 2007, they moved from the United States to the Ottawa area. When the complainant began working at the end of 2007, tensions developed in the marriage. In late 2009 or early 2010, the complainant discovered that D.D. was having an affair.

September 2010

[12] One evening in September 2010, after the complainant had come home from work, and after their children were in bed, D.D. and the complainant began to argue heatedly. She was sitting in the living room; D.D. was pacing. The complainant testified that D.D. was really upset, ran to the front door of the house and grabbed her car keys, and said words to the effect – “see how you get to work.” The complainant told him that she would not be able to do her job if she could not drive. D.D. then hung the keys back up in the front hall. The complainant heard him pull a knife from the block of knives in the kitchen. She saw him coming towards her with the knife in his right hand and closed her eyes.

[13] The complainant testified that D.D. put the knife to the left side of her neck, but he did not touch her with the knife. She had her eyes closed, but testified that she was “very aware” of where the knife was. Neither one of them said anything. D.D. held the knife to her neck for a few seconds. Then, D.D. ran back to the kitchen, dropped the knife on the counter and ran out of the house. As he moved away from her, the complainant opened her eyes. She continued to sit in the living room, afraid that D.D. would return. She did not think that he came back that evening. After this incident, they carried on as if nothing had happened. Initially, the complainant did not confront D.D. regarding this incident. She testified that she was afraid of saying anything to anyone.

April 2014

[14] Late in the evening of April 13, 2014, the complainant and D.D. were in bed together, with the lights still on. The complainant testified that without saying anything, D.D. “rolled over on top of me” to have intercourse. The complainant told him “no” and that she was not interested. D.D. proceeded to pull off her underwear and to hold her arms. The complainant resisted at first and testified that she tried to “wiggle out” from under him, repeating that she was not interested. She was not able to move away and was “afraid to make things worse” by resisting further. D.D. had vaginal intercourse with her, which lasted approximately 2 to 3 minutes. D.D. ejaculated in the complainant’s vagina, moved away from her, grabbed his pillow and left the bedroom. From that point onward, he slept in the basement. The complainant described D.D. as very angry immediately prior to and during the intercourse. She testified that she did not want to have intercourse with D.D. and did not consent to intercourse or any sexual activity with D.D. on this occasion. On April 14, 20 and 25, 2014, the complainant confronted him in text messages, using the words “rape” and “raped.” D.D. did not deny the accusations.

[15] In a text message she sent on April 14, 2014, the complainant stated “u held knife to my neck at some point…” D.D.’s text response was “yeah.”

[16] The complainant identified an email message she received from D.D. on April 15, 2014, the text of which included the following: “…still not an excuse for invading your space and forcing myself on to you and for that I’m sorry but I know it still doesn’t change what I did.”

[17] The complainant testified about an incident on April 27, 2014. D.D. was no longer sleeping in the bedroom with the complainant. The complainant testified that she had to be out of the house around 9 a.m. to get to work on time. She had finished having her shower and was in the process of selecting some clothes in the walk-in closet when D.D. came into the closet. The complainant was not wearing anything at the time. The complainant repeatedly told him that “she did not have time,” “I can’t” and that she had to get ready for work. She testified that he grabbed her by the arm and had her walk over to the bed, then he pushed her on to the bed with her legs hanging off the side of the bed. D.D. proceeded to have vaginal intercourse with her, twice, for about 5 minutes in total, ejaculating both times. The complainant testified that “once he had me in position,” I just had to “roll over and play dead” as any resistance would have just delayed things. She just wanted him to be done. She did not want to have intercourse or engage in any sexual activity with him on this occasion. She did not consent to intercourse or any sexual activity with D.D. on this occasion.

[18] The next day, April 28, the complainant confronted D.D. in a text message in which she used the word “rape.” D.D. did not deny the accusation.

October 2014

[19] The complainant also testified about an incident on October 27, 2014. At this point in time, D.D. was still sleeping in the basement. On October 27, 2014, the complainant woke up to D.D. lying on top of her with his penis touching her “crotch area.” The complainant told him “no”, that she had to get up, and that she was not interested in having intercourse. D.D. responded “there’s always no with you.” She testified that she tried to wiggle out and move away from D.D., but was unsuccessful. D.D. proceeded to put his penis in her vagina and ejaculated. The complainant testified that she had to “snooze her alarm” for 22 minutes during this incident. She did not want sexual intercourse or any sexual activity with D.D. on this occasion and did not consent to sexual intercourse or any sexual activity with him on this occasion.

November 2014

[20] By November 2014, ideas of separation and divorce were out in the open but neither could afford to live separately from the other. D.D. was still sleeping in the basement. On the morning of November 22, 2014, the complainant and D.D. had been texting back and forth for a couple of hours. D.D. then showed up in the complainant’s bedroom and locked the door behind him. He put his hands on the bedframe and the window and blocked her from leaving the room. When she asked him to let her go, he responded that she was not going anywhere. He continued to talk about moving to Alberta and taking the children with him. She tried to get past him but could not.

[21] D.D. then moved toward the complainant so that she would lose her balance and fall on to the bed. Holding her hands above her head, D.D. proceeded with what the complainant described as “very forceful, painful” vaginal intercourse. The complainant raised her voice and told him “no” and “to stop it.” He covered her mouth with his hand. He then raised the back of his hand and made a motion as if to slap the complainant (but did not do so), saying he should have done so a long time ago. The intercourse lasted a few minutes and D.D. ejaculated. Then he put on his pajama bottoms and left the room. The complainant did not want to engage in sexual intercourse with D.D. on this occasion and did not consent.

[22] The complainant testified that later that day, she was unable to hold her urine. This continued for about three days. She testified that she did not speak to someone else out of fear and the risk disclosure would pose to D.D.’s job. She did not go to see a doctor. She confronted D.D. in a text message the following day and again on November 24, 2014. On November 29, 2014, the complainant sent D.D. a text message in which she made reference to bruises on her arm, a “knife to my throat” and “ur hand raised in a gesture to stroke me on my face.”

[23] D.D. and the complainant separated on May 7, 2015. The complainant testified that they did not separate sooner because she felt “stuck and isolated”: D.D. was the primary breadwinner and he had told her repeatedly that if they split up, he would take the children with him. The complainant initially reported D.D. to the police in May 2015 for alleged harassment.

2. D.D.’s Testimony

[24] D.D. testified that none of the incidents as described by the complainant occurred.

[25] According to D.D., there was no friction in the marriage until late 1997. At that point, D.D. started to see a different side of the complainant – a side that was manipulative, controlling, and “hiding stuff.” While he had decided by October 1998 that he was not going to remain in the marriage, he decided to stay in the marriage when they found out they were expecting their first child.

[26] After their daughter was born, the marriage was “rocky” and D.D. had an affair. He testified that in the 1998 to 1999 time frame, he told the complainant that he wanted a divorce. D.D. testified that he does not like confrontation but that the complainant “is known for that.” They started communicating more and more by text.

[27] Within a month of their move to the Ottawa area, D.D. began seeing another woman. He testified that by 2009, the complainant knew that D.D. was seeing the woman who is now his fiancée. The complainant knew his password and had access to his phone. On cross-examination, D.D. stated that in the last years of the marriage, beginning around 2012, he would throw out the lunch the complainant made for him as he was concerned that she might poison him. He described himself as “extremely concerned”, and testified that he needed to be cautious in his dealings with her. He started to take precautions to protect himself, and he changed the password on his cell phone. He did not, however, change the password on his email because he communicated with other women by phone, not by email.

[28] D.D. never hit the complainant. He testified that the only time he ever raised his voice to her was on May 7, 2015 when he said “I don’t care, we are getting a divorce.”

[29] D.D. denied that the September 2010 incident involving a knife occurred. He testified that he did not grab a knife and walk in to the living room and approach the complainant. He testified that the complainant bruises easily. His “yeah” response to the complainant’s April 14, 2014 text stating “u held knife to my neck” was not intended as an agreement or an acknowledgment. As D.D. described it, it was “the answer she will always get from me.”

[30] D.D. testified that the complainant repeatedly referenced “rape” in her text messages in order to provoke a reaction from him in regard to something that did not occur. He did not acknowledge or deny the accusations in responding to the complainant’s messages because there was nothing to deny as nothing ever happened.

[31] D.D. denied that he engaged in non-consensual intercourse with the complainant on April 13, 2014. He testified that he never forced himself on the complainant and that their sexual intercourse was always consensual. He denied sending the April 15, 2014 email to the complainant and in particular, he denied writing the last paragraph of the email.

[32] D.D. acknowledged sending and receiving a number of text messages on April 21, 2014, but denied sending two of the texts, stating on cross-examination, that the complainant had taken his phone. His text message in which he stated “I’m also a rapist” was not an acknowledgment that he sexually assaulted the complainant – rather, it was an angry response to how she portrayed him in all of her texts.

[33] D.D. denied that he engaged in non-consensual intercourse with the complainant on April 27, 2014. He testified that on April 30, 2014, it finally “clicked” for him that the complainant was attempting to paint him as abusive so as to “play in your favour of keeping custody of the kids.” D.D. reflected his realization in his April 30, 2014 text message to the complainant.

[34] D.D. explained his May 2, 2014 email – in which he stated “you know what is your wife duty to fuck your husband and yes I says it” – was him “lashing out” just to get her to “shut up.”

[35] D.D. and the complainant were having consensual sexual intercourse around October 27, 2014 but he did not recall whether they engaged in consensual intercourse that day.

[36] D.D. did not have sexual intercourse with the complainant on November 22, 2014. In response to the complainant’s text message that she had been unable to hold her urine since the day before, D.D. wrote that he was trying to find out if she was ok. He explained that the complainant suffered from vertigo and he thought that she was not feeling well for that reason. He testified that the complainant repeatedly tried to portray something that did not happen. D.D. testified that he “never thought that the mother of my kids would put me in that situation.”

D. Analysis – The Testimony of D.D.

[37] The first step in the typical W.(D.) analysis is to consider whether or not I believe the evidence of D.D. If I believe his evidence that the events as described by the complainant did not occur, he is not guilty of all of the charges.

[38] In assessing whether or not to believe the accused’s version of the events, the trier of fact is not required to consider that evidence in isolation as if the Crown had led no evidence; rather the trier of fact may assess the accused’s evidence in light of all of the evidence. As the Court of Appeal stated in R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676, at para. 15:

The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

[39] To be accepted, evidence must be both reliable and credible. Reliability has to do with the accuracy of the witness’ evidence. Credibility involves truthfulness.

[40] For the following reasons, I do not believe D.D.’s evidence denying the allegations against him. I do not find his evidence to be credible. And, I am not left in reasonable doubt by his evidence.

(i) Testimony of D.D. That I Find to Be Untruthful or Implausible

[41] First, in her text messages to D.D., the complainant used the word “rape” or “raped” approximately 18 times from April 14, 2014 to November 29, 2014. Notwithstanding the repeated allegations against him, at no point did D.D. deny the complainant’s accusations. Although he admitted that he had the opportunity to respond, he explained that he did not do so because there was nothing to deny and he did not want to give the complainant any “ammunition.”

[42] I reject D.D.’s explanation. His evidence in this regard is simply not plausible. D.D. agreed on cross-examination that it would be human nature for an innocent person to deny allegations of serious criminal behaviour where they were provided an opportunity to do so. More significantly, he testified that beginning around 2012, he was afraid the complainant might poison him. He was extremely concerned. He had to be cautious in how he responded to her. He took steps to protect himself, including changing the password on his cell phone. He repeatedly described the complainant as “manipulative” and “controlling.” By the end of April 2014, things had “clicked” into place – he understood that the complainant was trying to create a documentary record to use against him in family court proceedings to obtain custody of the children and in his text message of April 30, 2014, was essentially “calling her out.” Yet, given the opportunity to respond to the complainant’s repeated allegations of rape and to deny those allegations, even two days later on May 2, 2014, he did not do so. Considered in this context, D.D.’s explanation why he did not do so defies logic and common sense. It is not plausible.

[43] Second, I also reject, on the same basis, D.D.’s explanation for not denying the complainant’s text messages in which she accused D.D. of having put a knife to her throat. One of the complainant’s text messages referring to the incident with the knife was months after April 30, 2014, when D.D. maintained he realized what the complainant was up to.

[44] Third, I reject as untruthful D.D.’s suggestion that the complainant used his phone on April 21, 2014 to send two text messages to herself as part of an orchestrated plan to paint him as an abusive husband. In order for her to have done so, the complainant would have had to, in a handful of minutes, locate D.D.’s phone, circumvent D.D.’s password, send text messages from her own phone, reply using D.D.’s phone, and finally, return the phone without D.D.’s knowledge – all this in the context of D.D. taking steps to protect himself from the complainant whom he believed was capable of poisoning him. I simply do not believe that the complainant accessed D.D.’s phone on April 21, 2014 to send the two text messages.

[45] Fourth, D.D.’s evidence is that he did not send the April 15, 2014 email and that as the complainant had access to his email account in 2014, she must have sent it to herself. I do not find D.D.’s evidence in this regard to be credible. I reject as implausible his evidence that he did not change the password to his email account in the context of his testimony that he knew he had to take steps to protect himself in his dealings with the complainant and given his testimony that two of the women he had been seeing had sent him email messages.

[46] Fifth, I find D.D.’s suggestion that the complainant was somehow creating a documentary record to paint him as an abusive husband to be used against him to be implausible. The complainant did not go to the police until May 2015. Her text messages to D.D. in which she accused him of rape and of holding a knife to her throat began in April 2014, more than a year earlier. Even if I accepted his evidence that the complainant sent the April 15, 2014 email and the two text messages of April 21, 2014, which I do not, it is implausible that the complainant would attempt to “frame” D.D. by sending three documents, none of which contain a clear and express admission of guilt. I agree with the Crown’s submission that if the complainant had been attempting to frame D.D. in this fashion, one would have expected these messages to contain clear and unambiguous “admissions.”

[47] Sixth, I reject as untruthful D.D.’s explanation that his May 2, 2014 text message was simply sent in anger to get the complainant to “shut up.” He testified that he had to be careful in how he responded to the complainant, whom he described as manipulative, controlling and intelligent, a woman he described as capable of murder. I simply do not accept that in the context he described, he wrote the words, “you know what is your wifely duty to fuck your husband and yes I says it” in order to get her to “shut up.” D.D.’s explanation for having written these particular words in response to the complainant’s text messages accusing him of rape defies logic and common sense. On cross-examination, he stated that even in hindsight he was not concerned about having written these words – that too defies common sense given the circumstances to which he testified.

(ii) Contradictions in D.D.’s Evidence

[48] In two significant respects, D.D. contradicted his own evidence. These inconsistencies also undermine his credibility. D.D. was asked about his April 28, 2014 text exchanges with the complainant, which culminated in the complainant writing “So u raped me because I sent picture to Aly and I went to work” and D.D. responding “No.” On his examination in chief, D.D. testified that he was saying “no” in relation to the issue of the picture. When asked on cross-examination, D.D.’s initial response was that he was saying “no” to the accusation of rape. I find this to be a significant inconsistency on the central issue of whether D.D. denied the complainant’s accusations.

[49] Second, D.D.’s evidence that he never thought the mother of his children would be capable of this – that is, painting him as an abusive husband to secure custody of their children – flies in the face of his testimony that the complainant was capable of anything, including murder and that he knew what she was up to.

(iii) D.D.’s Criticism of Others

[50] The Crown also raised as an area of concern, D.D.’s “gratuitous” criticism of others. Certainly in his evidence, D.D. attempted to paint the complainant in as negative a light as possible. He described the complainant as “known for being confrontational” and said she had been fired from one of her places of employment. I also agree with the Crown that in his evidence, D.D. insinuated that the police had acted improperly in conducting their investigation. D.D.’s unnecessary criticism of others is yet another factor that undermines his credibility.

(iv) Argumentative Tone

[51] At various points during his cross-examination, D.D. responded in an argumentative fashion. For example, when it was put to him that he felt that the complainant was manipulative, controlling and intelligent, each and every time D.D. insisted that he knew that she was manipulative, controlling and intelligent. He was reluctant to agree on cross-examination that he had typed the words “I’m also a rapist” in his April 21, 2014 text, notwithstanding his acknowledgment that he had done so during his examination in chief. D.D.’s argumentative tone in responding to questions on cross-examination further undermines his credibility.

(v) Absence of Corroboration

[52] D.D.’s denials are not corroborated in any of the text messages between D.D. and the complainant. Her text messages consistently accuse him of rape, while his text messages contain no denial of the conduct alleged. The documentary evidence tendered by the defence, including the additional text messages of May 2015, does not corroborate D.D.’s denials.

[53] Nor does the testimony of the other defence witnesses corroborate D.D.’s denials. Simply put, the defence witnesses had no relevant evidence to offer as to whether the specific events that form the basis of the charges did or did not occur.

(vi) Summary

[54] In summary, I do not believe D.D. I am not left with reasonable doubt by his evidence. I am not left in reasonable doubt by the other defence evidence.

[55] I turn then to consider the credibility and the reliability of the complainant’s evidence.

E. The Credibility and Reliability of the Complainant

[56] Defence counsel submitted that the complainant’s evidence was not credible. He urged me to consider her evidence in the context of the extremely acrimonious relationship between D.D. and the complainant and submitted that the complainant had a demonstrated motive to fabricate allegations against D.D. – that being to obtain custody of their children. Defence counsel also submitted that I should not find the complainant’s evidence to be credible because she is an “independent woman” who at no point prior to May 2015 went to the police, sought medical attention or spoke to anyone about the events that are the basis of the charges against D.D.

[57] I reject both of these arguments. The complainant’s affidavit in support of her claim for custody was filed in July 2015, two months after she first went to the police regarding D.D. The fact that the complainant did not, in that affidavit, refer to any violence or abuse by D.D. does not undermine the complainant’s testimony at trial. Indeed, the complainant was not asked about the absence of this information on the affidavit on cross-examination. In any event, I agree with the Crown that the absence of this information in the affidavit undermines the defence position that the complainant was endeavouring to build a case against D.D. based on false allegations in order to obtain custody of the children.

[58] The defence’s second basis for challenging the complainant’s credibility rests largely on the stereotypical presumption that there is a “normal” reaction by victims of sexual assault. As the Court of Appeal for Ontario stated in R. v. Garon, 2009 ONCA 4, 245 O.A.C. 141, at para. 72, relying on R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, this has long ago been discounted by Canadian courts and, in fact, juries should generally be cautioned about making such assumptions. The complainant testified that she did not have family or friends in the area. She was concerned what D.D. would do if he found out she went to the police. She was afraid that he would take the children – something that D.D. had repeatedly threatened to do. She testified that she felt “stuck” in the relationship. In the circumstances of this case, I reject this challenge to the complainant’s credibility.

[59] There were no inconsistencies in the complainant’s testimony that would call into question her reliability or credibility. Her testimony withstood cross-examination and she remained true to her account of the events. Apart from the evidence of D.D., the complainant’s evidence was uncontradicted.

[60] Importantly, the complainant did not exaggerate D.D.’s conduct. She was clear that at no time did D.D. hit her. At no time did the knife ever touch her throat. She testified that the incidents, in most cases, were of a few minutes’ duration.

[61] The complainant’s evidence is expressly corroborated by some of the text and email exchanges with D.D. For example, in D.D.’s April 15, 2014 email, he apologized for “forcing himself” on the complainant. In his April 21, 2014 text messages he again referred to forcing himself on the complainant and wrote “to my knowledge the other night was the first time.” D.D.’s May 2, 2014 “wife duty” email also corroborates the complainant’s evidence.

[62] The Crown submitted that the complainant’s evidence is further corroborated by D.D.’s failure to deny the complainant’s accusations in her text messages to D.D. – in other words, that there has been an adoption of the complainant’s accusations as a result of D.D.’s silence. The Crown relies on R. v. Tanasichuk, 2007 NBCA 76, 321 N.B.R. (2d) 44, leave to appeal dismissed Feb. 23 2009, where the New Brunswick Court of Appeal stated at para. 110:

In summary, the law requires that before an allegedly adopted statement can be put to a jury, the trial judge must find that there is sufficient evidence from which the jury might reasonably infer that the conduct of the accused amounted to an adoption of the statement…In determining whether the silence of an accused could support an inference that the accused assented to a statement, the trial judge must have regard to all of the circumstances…If…the judge concludes that the silence of the accused can support such an inference, the evidence is admissible…The jury must be instructed that “it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence…and in so deciding they must “consider all of the circumstances under which the statement was made.”

[63] The defence submitted that in the circumstances, and considering in particular, the long marriage and highly acrimonious relationship between the complainant and D.D., I ought not to conclude that D.D., by his silence, adopted the complainant’s statements.

[64] The circumstances I must also consider include: (i) the fact that in the context of this highly acrimonious relationship, D.D. was alive to the need to be cautious and protect himself from what he firmly believed the complainant was up to; (ii) the fact that the complainant made many – approximately 18 – accusations that he did not deny; (iii) D.D.’s own evidence that he knew the complainant to be “manipulative” and “controlling” and someone whom he thought might poison him; and (iv) D.D.’s acknowledgement that one would expect that an innocent person, accused of a serious offence and given the opportunity, would deny the accusation. All of these circumstances compel the overwhelming conclusion that D.D., by his silence, adopted the complainant’s statements. D.D.’s failure to deny further corroborates the complainant’s testimony.

[65] For all of these reasons, I find the complainant to be a reliable and credible witness. I accept her evidence as to the events she described in her testimony. I turn then to consider whether the Crown has proved each of the offences beyond a reasonable doubt.

F. The Sexual Assault Charges – Counts 4, 5, 6 and 7

[66] The elements of the offence of sexual assault are:

(i) D.D. intentionally applied force to the complainant;

(ii) the complainant did not consent to the force applied;

(iii) D.D. knew that the complainant did not consent to the force applied; and

(iv) the force was applied in circumstances of a sexual nature.

[67] With respect to counts 4, 5, 6 and 7, the complainant testified that D.D. engaged in forced vaginal intercourse without her consent on April 13, April 27, October 27 and November 22, 2014. I accept the evidence of the complainant. I find that the Crown has proved, beyond a reasonable doubt, that D.D. intentionally applied force to the complainant, that she did not consent and that the force was applied in circumstances of a sexual nature.

[68] I also find that D.D. knew that the complainant did not consent. On April 13, 2014, the complainant told D.D. “no”. She tried to “wiggle out” from under him and told him she was not interested. In his April 15, 2014 email, D.D. apologized for “forcing myself on to you.” This evidence compels the overwhelming conclusion that D.D. was actually aware that the complainant did not consent to vaginal intercourse with D.D. on April 13, 2014.

[69] On April 27, 2014, the complainant told D.D. she “did not have time” and “I can’t.” I am satisfied beyond a reasonable doubt that D.D. knew that the complainant did not consent to vaginal intercourse with D.D. on April 27, 2014.

[70] On October 27, 2014, the complainant told D.D. “no” and that she was not interested, to which D.D. responded “there’s always no with you.” The complainant tried to wiggle out and move away from D.D. I am satisfied by this evidence, and in particular, D.D.’s response, that D.D. knew the complainant did not consent to sexual intercourse on October 27, 2014.

[71] On November 22, 2014, D.D. blocked the complainant from leaving the room. He held her hands above her head. The complainant raised her voice and told him “no” and “to stop it.” Again, I am satisfied beyond a reasonable doubt that D.D. knew that the complainant did not consent to sexual intercourse with him on November 22, 2014.

[72] I find that the Crown has proved each of the elements of sexual assault beyond a reasonable doubt. I therefore find D.D. guilty with respect to counts 4, 5, 6 and 7 on the indictment.

G. Possession of a Weapon For the Purpose of Committing an Offence and Assault with a Weapon – Counts 1 and 2

[73] D.D. is charged with possession of a weapon – that is, a knife – for the purpose of committing an offence. The elements of this offence are:

(i) D.D. possessed a weapon;

(ii) D.D. knew that what he possessed was a weapon; and

(iii) D.D. had the weapon for the purpose of committing an offence.

[74] I am satisfied that the Crown has proved the first two elements of the offence beyond a reasonable doubt. However, with respect to the third element, I simply cannot be sure that D.D.’s purpose in possessing the knife was for the purpose of committing an offence on the complainant. Although D.D. and the complainant had been having a heated argument, from the time D.D. hung the complainant’s keys back up in the front hall and went to get the knife from the kitchen, he said nothing. There is no evidence as to how close the knife was from the complainant; the complainant could only “sense” the knife. There is no evidence as to exactly what D.D. was doing with the knife once he was close to the complainant. D.D. did not touch the complainant with the knife or with any part of his body. After a few seconds, D.D. ran back to the kitchen, dropped the knife and left the house, all without saying a word. Based on this evidence, I am not satisfied beyond a reasonable doubt that D.D. possessed the knife for the purpose of committing an offence on the complainant. I find D.D. not guilty of the charge under section 88(1) of the Criminal Code.

[75] The offence under section 267(a) of the Code incorporates the mental element and external circumstances for simple assault. An assault may be actual or constructive. There was no actual application of force in this case – the knife did not touch the complainant’s neck or any part of her body. Constructive assault involves the intent to apply force to another, not the actual application of force. For the same reasons that I cannot be certain of D.D.’s purpose in possessing the knife, I am not satisfied beyond a reasonable doubt that D.D. intended to apply force to the complainant. I therefore find D.D. not guilty of the charge under section 267(a) of the Code.

H. The Unlawful Confinement Charges – Counts 3 and 8

[76] The elements of the offence of unlawful confinement are:

(i) D.D. intentionally confined the complainant; and

(ii) the confinement was without lawful authority.

[77] Confining is not limited to restricting a person to a certain place; it is a physical restraint contrary to the wish of the person restrained, with the result that the person is deprived of moving from place to place (R. v. Gratton (1985), 18 C.C.C. (3d) 462, 7 O.A.C. 190 (C.A.)).

[78] The required mental element is the intention to confine, which can be inferred from all of the accused’s actions (R. v. Niedermier, 2005 BCCA 15, 207 B.C.A.C. 171, at para. 46). In relation to the transaction on April 13, 2014, the act that is alleged to constitute the confinement is D.D. rolling on top of the complainant and the sexual assault itself. The restraint that constitutes the act of sexual assault is not, in my view, sufficient to constitute a separate event of unlawful confinement. In any event, I am not satisfied beyond a reasonable doubt that the acts relied upon by the Crown as constituting the actus reus of unlawful confinement were accompanied by the requisite intention on the part of D.D. to confine the complainant in the sense of restraining her from moving from one place to another.

[79] Accordingly, I find D.D. not guilty of count 3 on the indictment.

[80] I move then to count 8 on the indictment. In R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24, the Court stated:

The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary to her wishes so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2).

[81] With respect to count 8, I find that D.D. did restrain the complainant from moving from one place to another when he placed his hands on the bedframe and on the window and thereby blocked the complainant from leaving the room. However, I am unable to conclude that the restraint on the complainant’s movement was for a significant period of time as D.D. immediately moved to the acts that constitute the sexual assault. In addition, I am not satisfied beyond a reasonable doubt that D.D.’s acts were accompanied by the requisite intention on the part of D.D.

[82] I therefore find D.D. not guilty of count 8 on the indictment.

I. Summary

[83] For these reasons, I find D.D. not guilty on counts 1, 2, 3 and 8 on the indictment. I find that the Crown has established beyond a reasonable doubt the essential elements of the four charges pursuant to s. 271 of the Code. I therefore find D.D. guilty of the four counts of sexual assault, being counts 4, 5, 6 and 7 on the indictment.

Madam Justice Robyn M. Ryan Bell

Released: May 29, 2018

OTTAWA COURT FILE NO.: 15-DV6945

DATE: 2018/05/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

D.D.

Accused

REASONS FOR JUDGMENT

Justice Ryan Bell

Released: May 29, 2018