R. v. Jacko, 2018 ONSC 584

COURT FILE NO.: CR16-0020

DATE: 2018-02-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRADLEY KEN JACKO

Ms. S. Haner, for the Crown, at trial

Mr. B. Allison, for the Accused

HEARD at Gore Bay: September 20, 21, 22, and October 10, 25, 2017

Reasons for Judgment

A.D. KURKE J.

Overview

[1] This matter proceeded as a blended hearing to determine facts on the accused’s plea of guilty to Aggravated Assault by wounding, s. 268 of the Criminal Code, and on a contested trial upon the accused’s plea of not guilty to a charge of Aggravated Sexual Assault, s. 273 of the Criminal Code: Counts 1 and 2 on the indictment, respectively. The remaining five Counts on the 7-Count indictment were withdrawn at the request of the Crown at the opening of trial.

[2] On application by the Crown, and on consent of the accused, the complainant B.W., who was over 18 years old, was permitted to give her testimony outside the courtroom, and with her maternal aunt as a support person.

[3] It was agreed that the parties would provide written submissions on the case. Crown submissions were filed December 20, 2017, and defence submissions January 20, 2018.

Facts

The complainant’s evidence

[4] The complainant in the case was born in 1997. In April 2016 she was 19 years old, and living with her 2-year-old daughter at the home of her mother A.M.

[5] On April 1, 2016, the complainant was at her boyfriend’s home alone with a 26 ounce bottle of Bacardi. She consumed there six shots worth of the alcohol. She had no marijuana that day, or any other drugs. After the drinks she was feeling about a “4 out of 10” in terms of intoxication, with 10 being “really drunk”.

[6] The complainant left her boyfriend’s with a bag of her things, and ultimately made her way to her friend R.M.’s house, where she found R.M., N.T., an old boyfriend called G.C. and his brother A., and the accused, Brad. She knew all of these people in one way or another except the accused, whom she knew of only insofar as G.C. talked about him as a best friend. G.C. and the accused were playing beer pong. On the same intoxication scale, the complainant assessed these persons at 5 out of 10.

[7] About an hour and a half after the complainant’s arrival, another acquaintance, Z., arrived at R.M.’s. He was there for some time before he started “puking”, and emergency assistance was called for him. By that point, only N.T. and A. had left. Before Z. was removed by ambulance, the complainant continued to drink her Bacardi, both as shots and mixed with Orange Crush. She shared some with R.M. and G.C..

[8] After the ambulance was called, the complainant, now at 7 out of 10 on the intoxication scale, passed out on a couch. This had been a heavy drinking night; she usually did not drink so much. The complainant believes that she was passed out for a couple of hours because of the alcohol, but it was still dark when she woke. Everyone was still there except for Z., A., and N.T.. R.M. was now also playing beer pong. The complainant still felt drunk.

[9] The complainant remembered that she had to go give her brother some money, and had $300 with her in her purse. She looked for her bottle, and asked the others to help. G.C. found a bottle, and gave it to her. The complainant noticed that instead of being still half full, there was only 4 shots worth left in it, which she proceeded to finish over 20 minutes. She blanked out from that point, until she was leaving R.M.’s.

[10] At the door, the complainant stated where she was going. G.C. was at the door talking with Brad, who said that he was going that way also. The complainant grabbed her bag, opened the door and started walking, while Brad and G.C. were talking. Her brother’s home was about a 15-minute walk from R.M.’s. The sun was just coming up; it was early.

[11] Brad caught up with the complainant as she walked past the nursing home, about five minutes from R.M.’s house. At that point, the complainant felt like a 7 out of 10 in terms of intoxication. She was wearing a spring coat over a sweater, t-shirt and brassiere. She was wearing jeans, panties and basketball shoes. She remembers having no alcohol with her as she walked to her brother’s.

[12] The complainant stopped in briefly to see a friend B. at the “T” building near the nursing home, and to have a cigarette. When the complainant was leaving, she and B. encountered Brad sitting on the stairs at the back. This meeting with B. had not been mentioned in any evidence previously given by the complainant. The complainant remembered it about a year before the trial, apparently after the preliminary inquiry. The complainant continued on, and headed towards the “trail”, a shortcut to her brother’s, some five minutes away. Brad walked behind her, and the two did not speak.

[13] The trail is of packed dirt with trees on either side, accessible by a board bridge. The complainant’s testimony at trial was that she and the accused were about 20 steps in when the accused pushed her on the back with both hands. She asked him why he had done that, and he answered that she was “pissing him off”. The complainant told him not to push her again.

[14] The complainant continued walking, “kind of mad and startled” at being pushed. Shortly after he pushed her, Brad started beating her up. He punched the complainant in the head and face numerous times and also hit her many times on the head with a stick that he had picked up at some point. At first the complainant remained standing, but she said that Brad “knocked her out” a couple of times. The complainant tried to cover up her head and face as much as she could, and tried to run away, but the accused stopped her. During the course of the incident, the complainant lost a shoe, her bag of possessions, and her wallet with her identification and money.

[15] The complainant testified that at one point, Brad was choking her with both hands on her throat, while she lay on the ground on her back trying to push him off. As the complainant described it, this caused her to “fall asleep” or get “knocked out”. The complainant awoke to him “raping me from behind”, as she lay flat on her belly in the same area where he had been choking her, on mucky and snowy ground. His penis was in her vagina. She asked him: “what are you doing?” The complainant kicked Brad off of her, got up and pulled up her panties and jeans, which were at her ankles. She did not have time to zip up her pants at this point. As she tried to run, the accused, who already had his pants up, tripped her, and kept beating her.

[16] The complainant screamed for help. Brad yelled at her to be quiet. He dragged her by her hair up and down the hill. She described scars on her knees from being dragged. The complainant tried to pull back on her hair and get up, but Brad continued to drag her. At one point, the accused used his elbow on the complainant’s throat to choke her. He stomped on her ankle with his shoe. These two details, the elbow to her throat and the stomping on her ankle, were ones that the complainant had not mentioned previously in evidence or in her testimony at preliminary inquiry. The accused somehow also broke the complainant’s finger.

[17] The complainant wanted to get to the road. When the accused threw his stick away into the bush, she “made a run for it”. She first ran to the Youth Centre, which was closed, but she knew that there were video cameras set up there. The accused caught up to her, and pushed her and assaulted her more. The complainant testified that she ran, and kept running. She did not have time to zip up her pants from having been unfastened until after the Youth Centre, when she was running to the road.

[18] In her trial testimony the complainant said that at some point, Brad told her that if she told anybody, he would kill her family.

[19] Eventually, the complainant ran to the road, filled with relief for having gotten away. It appears that the accused did not pursue her there. She was able to flag down a car. Her shoe was missing, and her ankle was swollen. The people in the car let her sit inside, and she asked them to call an ambulance. Her head, back, ankle, and hand hurt. The complainant had bled a lot, and was hoping that she would not die. She remembered passing out in the car, and waking up when the ambulance showed up. She had no memory of having been in the ambulance, and next remembered waking up in the hospital.

[20] When the complainant awoke in hospital, she was getting stitches in her head, and screamed because it hurt. Everything hurt. Police were there, a nurse was there, and a doctor was doing the stitching. The complainant told police that “Bradley did this to me”, and she asked them to call her parents and tell them to come. Police took pictures of her. The complainant remembers “passing out” after her mother got there.

[21] The complainant testified that during the incident with the accused she went unconscious from being choked three times, and suffered effects of the choking afterwards. Her throat was bruised, and she lost her voice. She found it difficult to speak or eat for a month. In addition, the complainant had bruises all over her body. Her finger was broken and had to be pinned. Photos entered into evidence in Exhibit 1, and admitted as authentic by the defence, document the trauma.

[22] During her stay at the Little Current hospital, the complainant went several times to the hospital in Sudbury. Initially, she went for a CT scan and to have her finger set. She was brought twice to Sudbury to have a “rape kit” examination performed on her. The first time she said no, because at that time she could not remember the sexual assault. But the complainant was angry about the possibility of sexual assault, and agreed to the kit, which itself she felt to be a violative procedure. It was only when she was being examined “down there” that her “memory started popping up” about Brad raping her.

[23] After some initial confusion on the timing, the complainant testified that she told Det. Sgt. Diane Trudeau that she remembered a sexual assault after she went for the rape kit examination. She does not remember telling her mother or any medical people about it before the rape kit.

[24] After being in hospital for more than a week, the complainant wanted to go home to her family and her daughter. The complainant decided to leave the hospital contrary to hospital recommendations.

[25] She took physiotherapy for a while. The complainant continues to take medication to help her sleep, and for anxiety. She suffered injuries to her head, her shoulder, her ankle, her finger, and her lower spine. She has scars on her knees.

[26] At trial, the complainant was shown and identified her black fabric bag, in which were her scarf, her now crushed cigarette tin, her watch, her lipstick tube and other makeup items. Also in the bag was a bottle of Bacardi, half-full. The complainant also identified what she described as a gram of weed, of origin unknown to her. No evidence was offered to prove where the bottle or the bag of marijuana had come from, though some evidence indicated that police at some point apparently found certain of the contents of the bag on the ground near the trail.

[27] The complainant testified that she only could not recall one period of time because of the alcohol she had drunk, a couple of hours at R.M.’s house. The complainant testified that it took her a while to remember things after the incident, as her “head was bashed”. After speaking with Detective Trudeau, the complainant continued to remember more. Indeed, the complainant testified that she continued to remember more even after her attendance at the preliminary inquiry in July 2016.

[28] A.M. testified that she had recorded on her cellphone the complainant’s description to her of what the accused did to her, but that recording was erased. Only A.M. and the complainant had access to the phone. The complainant did not remember if she erased that recording.

[29] Even when she was shown a half-full bottle of Bacardi at trial, the complainant maintained that she had finished her bottle of Bacardi at R.M.’s house.

Jeanette Fox

[30] Jeanette Fox was an attendant paramedic who interacted with the complainant on her way from the scene to the hospital in Little Current. The complainant was emotional at the scene, but after that became quiet. Ms. Fox testified that she asked the complainant en route to the hospital if she had been sexually assaulted, and the complainant answered, “Yes”, but gave no details. Ms. Fox did not observe the complainant to lose consciousness, but there were times that she let the complainant rest without talking. She observed no indicia of impairment.

Kara Lelievre

[31] Kara Lelievre is a nurse at the Manitoulin Health Centre in Little Current who dealt with the complainant after she was brought in by ambulance. She was part of a general head-to-toe assessment conducted on the complainant in the emergency room. The complainant’s eyes were swollen shut at the time. She was very distraught, and yelling out from the pain.

[32] Given the complainant’s injuries, nurse Lelievre asked the complainant whether she had been sexually assaulted. She asked more than once, but was told “I don’t know” by the complainant. Regardless of that answer, the hospital in Sudbury was called to determine whether staff there could perform a sexual assault exam, in order to preserve any sexual assault evidence, “just in case”.

[33] At 6:10 p.m., the physician came in to suture the complainant’s face. The complainant was compliant and cooperative for the suturing, as the area was “frozen” for the procedure, and the complainant was given morphine intravenously.

Reza Yaghini

[34] Dr. Reza Yaghini was on call in the emergency room at the Manitoulin Health Centre when the complainant was brought in, in very bad shape, conscious and in pain. He saw the complainant after 12:40 p.m. on April 2, 2016. He had information from the ambulance attendants and/or the nursing staff that the complainant had been physically and sexually assaulted. The complainant was in the emergency room for some 12 hours, before being transferred to a ward at about 35 minutes after midnight on April 3. Dr. Yaghini treated her in the emergency room.

[35] Among other things in his evidence, Dr. Yaghini noted the following injuries: the complainant was severely bruised around both eyes. She had deep lacerations to the front and back of her head, above her left eye, and on her lower lip. Her upper lip was badly swollen and bruised. She had bruising to both elbows and knees, and there was a deep and large abrasion to her left elbow. There was a large abrasion to the complainant’s left knee. The skin was almost gone from it, and it was contaminated with sand or soil. The right knee also was bruised and mildly abraded. Her ankles were swollen and tender, particularly on the left. The first phalanx on her right index finger was fractured. The complainant did not lose consciousness during her stay in the emergency room.

[36] Dr. Yaghini asked the complainant if she was sexually assaulted. The complainant did not answer him, but she apparently told someone else that she had been sexually assaulted. Dr. Yaghini wanted her to see the sexual assault team, but he was told that the patient refused and said that there was no sexual assault. The complainant was sent to Sudbury for a CT scan of her head and face. She was administered morphine for her pain and given a shot against tetanus.

Barbara Matthews

[37] Barbara Matthews has been a nurse for more than 34 years. In April 2016, she was a forensic nurse with a specialty in sexual assault, domestic violence, and child maltreatment, in the Violence Intervention and Prevention Program at the hospital in Sudbury.

[38] Nurse Matthews saw the complainant on April 4, 2016, after the complainant’s earlier opportunity to be assessed with a sexual assault kit had not gone ahead. On that earlier occasion, the complainant had stated that she had felt pressured to consider the forensic sexual assault kit, but had denied that there had been any sexual assault.

[39] A sexual assault kit examination can take place up to 12 days after the alleged sexual assault, though there are varying timelines for different aspects of the examination. It is better to collect the evidence sooner, as biological evidence can degrade over time.

[40] Materials prepared by nurse Matthews on April 4 during the sexual assault kit examination in Sudbury record that the complainant stated that she did not know if she had lost consciousness during the incident. The complainant also admitted to sometimes using marijuana, and to drinking half a bottle of alcohol every other weekend. Also recorded was the fact that the complainant had suffered injuries of various kinds all over her body. Scratches and abrasions to both her lower back and abdomen were noted.

[41] Nurse Matthews’ examination of the complainant took just over two hours to complete. The complainant made no objection to any aspect of the exam. Nurse Matthews provided medication for sexually transmitted infections and pregnancy prevention, but the complainant declined testing for HIV. Counselling was recommended to her.

[42] Nurse Matthews prepared body diagrams of the complainant, describing areas of bruising, scratches and swelling all over the complainant’s body. She documented an injury that was not noted by prior observers: an area of bruising and tenderness in the peri-vaginal area.

A.M.

[43] A.M., the complainant’s mother, testified. She and the complainant moved to Wikwemikong six years ago, when the complainant was 14 or 15. A.M. helped look after the complainant’s daughter. She had last seen the complainant two days before the events at issue. At that time, the complainant had no injuries.

[44] On April 2, 2016, while A.M. was in a car on her way to Wikwemikong, she got a call from her ex-husband about the complainant being in hospital after being beaten up. She turned around and drove to the hospital in Little Current.

[45] The complainant was in the emergency room, full of blood, and bandaged. A.M. fainted at the sight. When she recovered, A.M. spoke to the complainant and told her that she was there. The complainant said to her mother, “Look at what he did to me. He tried to kill me.” The complainant cried out when A.M. tried to hold her, because she was in so much pain. The complainant kept repeating “Look at what he did to me.”

[46] A.M. had to leave to attend to her granddaughter. When she returned about two hours later, the complainant’s face was more swollen, and she was in a lot of pain. The complainant was on pain medication, and was in and out of consciousness. But she was more alert than she had been earlier. The complainant was able to identify her assailant from Facebook, but told A.M. that she did not know if she was sexually assaulted.

[47] Two days later, A.M. was lying beside the complainant in her hospital bed, holding her, when the complainant screamed out in her sleep. A.M. reassured the complainant, who told her “he’s coming. He said he’d come after me.” The complainant then screamed “I remember!” The complainant then told A.M. what had happened during the incident.

[48] Concerning what she was told by the complainant about the sexual assault, A.M. testified in-chief as follows:

Q. Did she give you any details of any sexual assault that occurred during that conversation?

A. Yes.

Q. And what is it that you recall her saying about that?

A. She said she remembered. She said she remembered she got hit in the head and that she seen white dots everywhere and she seen a stick or a bar, what appeared to be a bar, or whatever. Something fell beside her and she seen it fall and she said she looked and he was pulling his pants up and she said, “What the fuck are you doing, stop.” And she said, “I got attacked again and again and again.”

[49] A.M. was also asked in cross-examination about what the complainant had first told her about the incident, and on consent was permitted to adopt the description of what the complainant had told her from A.M.’s evidence at the preliminary inquiry (August 2, 2016, page 13, line 8 to page 19, line 23). In that evidence, A.M. testified that the complainant told her what had happened, and A.M. recorded it, after the trip to Sudbury for the CT scan, when the complainant was back in Little Current and the pain medication had kicked in.

[50] A.M. testified at the preliminary inquiry that the complainant told her that “G.C.’s friend”, whom she did not know, started things off with a blow to the complainant’s head that dropped her to the ground. The complainant asked him why he had done that, and he responded that the complainant had “pissed him off”. He then started kicking her and punching her as she tried to protect her face with her arm. He dragged her up and down the hill. He dragged her by her ankles. He threatened to kill her, her daughter, and her grandmother. She said to stop, and he wouldn’t. She ran, and he kept catching her.

[51] The complainant felt a stick or bar hit her in the head. She saw “dots”, and thinks she was knocked out. When she woke up “he was pulling his pants up. I said what the fuck are you doing?” The complainant ran to the Youth Centre because she knew there was a camera there. She told him that he was going to be caught. He dragged her again into the bush, the complainant screamed for help, felt a burning sensation in her knees, and the accused threatened to kill her. He choked her, and the complainant escaped, got pulled back again, escaped again and ran to the road, where someone finally stopped and helped her. The complainant did not remember getting in the ambulance.

[52] A.M. turned on her cellphone to record what the complainant was telling her so that the complainant would not have to tell it again to police. The complainant was not aware of this at first, but became aware towards the end. Only A.M. and the complainant had access to the phone. At some point afterwards the recording of the complainant’s description was erased. When A.M. asked the complainant if she had done it, the complainant denied it.

[53] The complainant was transferred to Sudbury three times. The first time was for a CT scan. It was after the scan that the complainant told A.M. about the sexual assault. The complainant was brought to Sudbury another time, to have a sexual assault examination, but could not do it, because she was in a lot of pain. A.M. drove the complainant to Sudbury herself a third time, on pain medication, and the complainant was able to have the sexual assault examination done.

[54] A.M. spoke of the complainant’s difficulties in recovery, and the terrible effects of these events on the complainant. I told counsel at the time, and I remain of the view, that this information, though useful for victim impact on the aggravated assault charge to which a plea of guilty had been tendered, has no other probative value in the determination of the accused’s guilt or innocence on the charge of aggravated sexual assault. I have disregarded it for that purpose.

D.C. (also called G.C.)

[55] D.C. is from Wikwemikong. He knows both the complainant and the accused. In fact, he was in a relationship with the complainant in early 2016. They no longer talk.

[56] In April, D.C., who also goes by the name G.C., was in his friend R.M.’s home the evening of April 1-2, 2016. He remembered the complainant joining him, R.M., Brad and Z.. They were listening to music and talking. He and Brad had been together all day. They started drinking around 6 p.m. D.C. had a 60 ounce bottle of whiskey. There was also a case of 24 beer at the party. D.C. stopped drinking around 3 a.m.

[57] D.C. testified that the complainant showed up at 7 or 8 p.m., a couple hours after he started drinking. She was already intoxicated, and brought with her a 26 ounce bottle of Bacardi. When she got there, there was a little more than half the bottle left. She drank heavily from her bottle, and D.C. believed that she had finished it. Indeed, he commented that she was too drunk to realize that she had finished it. At about midnight, the complainant fell asleep on the couch for 1 or 2 hours. When the complainant woke up, she drank some more.

[58] D.C. thinks that the complainant slept through Z. vomiting, and an ambulance coming to take him to hospital. D.C. called for the ambulance at about 11 p.m. or midnight; he challenged the accuracy of the ambulance report time stamp of 3:57 a.m. That ambulance call report, with its time stamp, has been filed as an Exhibit. D.C. estimated that his level of intoxication was eight out of 10 after Z. went to hospital, and Brad was drinking at the same pace as D.C.. D.C. did not specifically remember when the complainant left, but testified that “everyone” left around 3 a.m. He was awakened the next day by police to give a statement. Only after the statement did D.C. find out what had happened to the complainant.

Police notes

[59] Extracts from the notebook of Cst. Peltier, the investigating officer, were filed on consent. Those extracts consist of scene diagrams drawn by the investigator, relating to the areas where portions of the incident took place. I can take little from these undated diagrams without the assistance of their creator or an agreed statement of fact, but no such assistance was offered. However, I note the following:

a. Blood and blood drops were noted at several locations;

b. The contents of the complainant’s bag appear to have been situated along an area by the graveyard, although the bag itself is not indicated on the diagram, and no particular description is provided for any of the items;

c. Among various items indicated on one diagram are a “liquor bottle” and a “marijuana Ziploc”, but there is no evidence to connect either of these items to the complainant or the complainant’s bag. There is no evidence to establish that the “liquor bottle” in the notes was a Bacardi rum bottle, or that the bottle or the bag of marijuana have anything to do with this case;

d. Drag marks and footprints are noted in one area, though there is no way of knowing how it was determined that the marks were “drag marks”, or whether those drag marks or footprints relate to the complainant or the accused, or to someone else;

e. Blood drops are noted on the stairs and deck area of the Youth Centre building, in places where the complainant can be observed to be situated in one of the Youth Centre videos.

The videos from the Youth Centre

[60] Exhibit 1, Tab 5 is a compilation of video recordings from the Youth Centre. The defence admitted that the persons on the tapes are the accused and the complainant. There are two vantage points on the videos. A version of one of the videos, the earlier in time, with enlargements by the OPP, is Exhibit 7 on the proceeding.

[61] The first video in time shows two figures at a distance from the video recorder, and somewhat difficult to discern. The figures appear in the upper left corner of the frame and eventually move to the right behind foliage, making their movements even more difficult to determine.

[62] When people first appear, at timestamp 10:18:26, a taller figure chases a shorter figure to the left out of the frame. The shorter figure appears to wear a red top. At 10:19:58, one figure appears to be dragging the other along the ground from left to right at first by the hair, in two bursts of effort. The dragging figure appears to kick the one on the ground at one point, before continuing to drag the other behind foliage, where some further action takes place. At about 10:20:26 the figures reappear, both on their feet, and go to the ground. The dragger is on top, and it is apparent to me that that figure is the accused, as his clothing is consistent with the accused’s clothing in the second video.

[63] The complainant underneath appears to be on her belly, and the accused on top is also on his belly on the complainant’s back, his groin against her buttocks. There is some indiscernible movement in this position until 10:20:33 at which point the accused goes to knees and then to standing, where he appears to deal with his pants in some fashion, and could be pulling them up or securing them. The complainant gets up and is thrown down again, and the accused again adjusts his pants in some way and then appears to drag the complainant behind the foliage again. The pair remain in that area for several minutes, although at one point the accused appears alone to the left of the foliage for some seconds. The accused can be seen again dragging the complainant for several seconds during this time. At 10:24:40 the complainant has gotten to her feet, and perhaps fends off an attack. She starts running to the right, and then into the foreground, to the porch of the Youth Centre, pursued by the accused, who is walking deliberately behind and in pursuit of her.

[64] The second video in time is of the porch of the Youth Centre taken from close to the porch. The actions of the two persons are in close proximity to the camera.

[65] The complainant can be seen hurrying up to the porch, holding up or pulling up her pants at the sides. She is simply in a short-sleeved red shirt on top. The complainant bangs on the apparently locked door of the Centre with both hands, as the accused walks towards the porch, and climbs the steps towards her in a winter coat and ball cap. The accused stands near the complainant, who has her back against the Centre entrance. The accused is to her right, facing her, with his back to the camera against the railing of the porch. The two appear to be speaking, with the accused appearing to direct the complainant to leave the porch, and the complainant refusing.

[66] Then the accused grabs the complainant from behind. She struggles in his grasp, and tries to hold onto the railing, but he throws her down the stairs of the porch. The complainant does not lose her balance, and takes off running, holding up her pants as she runs. The accused bolts down the stairs after her.

Exhibit 1

[67] Exhibit 1 on the trial is a “Book of Evidence” that contains photographs of the complainant’s injuries taken by various persons, medical records of the complainant from various sources, CFS reports dated June 30, 2016 and April 3, 2017, the original DVD of footage from the Youth Centre, and photographs of the accused taken by Det. Sgt. Mandamin on April 5, 2016.

[68] The authenticity and admissibility of all of these items are admitted by the defence. The volume was filed on consent, on the understanding that I may rely on its contents for all purposes. I would have expected an agreed statement of fact to describe the materials and provide some kind of narrative for them, but there was none.

[69] A.M., hospital staff, and Detective Sgt. Diane Trudeau took photographs of the complainant between April 2 and April 5, 2016. The complainant is shown heavily bruised, cut, scraped, and swollen about her face, on her scalp under her hair, behind her right ear, on her left eyelid, and on her throat. Her eyes appear blackened, and her lips bloodied and swollen. There are photographs of bruising and abrasions on her arms, legs, hands, and back. The flesh on the complainant’s left knee is raggedly gone. The area above and around the cleft of her buttocks suffered innumerable scratches lengthwise to her body. A cut above her left eye was sutured shut. The images justify a finding that the complainant suffered significant injuries over much of her body.

[70] EMS records preserve the observations of emergency personnel who first dealt with the complainant. She had cuts above her hairline, and above her left eye, and “obvious trauma” to her back/pelvis, and extremities. She was emotionally distressed, crying, and alert and oriented. It was noted that the complainant had a laceration below her left knee, and that her pants were ripped, and wet with blood below the knee. The complainant “would not elaborate on most questions”.

[71] Medical records confirmed that the complainant came to the emergency room at the Manitoulin Health Centre in Little Current at around 12:30 on April 2, 2016. She was agitated and crying, and complaining of pain everywhere, uncooperative, and often abusive to hospital staff. Her face was “completely bloody” with obvious lacerations on her skull and multiple bruises around the arms and legs. It seemed that she had been very badly beaten. Her injuries were as testified to by Dr. Yaghini. Dr. Yaghini was only able to close the complainant’s lacerations once she had calmed down, and her pain and agitation were under control.

a. A progress note from April 3, 2016 documents the complainant’s decision not to be seen by the sexual assault nurse once she was transferred on April 2, 2016 to Health Sciences North. She changed her mind on April 3, but examination could not be accommodated. A note from April 4 indicated that the complainant was to be assessed by the sexual assault nurse that day.

b. Records also confirm the complainant’s attendance with sexual assault nurse Matthews for the sexual assault kit examination on April 4, 2016.

c. The complainant was unwilling to discuss events, and never gave hospital personnel a “history of what happened to her”. The complainant discharged herself from hospital “against medical advice” on April 6, 2016.

[72] Vaginal swabs and other samples from the complainant and her clothing were taken, and sent to the Centre of Forensic Sciences for analysis. Testing revealed that male DNA was detected on vaginal swab and/or external vaginal swab and a cut-out from the lower front panel of the complainant’s underwear, but at a level below the Centre’s ability to quantify it. No semen was detected.

[73] Photographs were taken of the accused on April 5, 2016 by Detective Sergeant Darrell Mandamin. They reveal bruising and marking of various kinds to the accused’s forearms, the knuckles of his right hand, an injury of some kind to his left middle finger, and possible bruising to his knee.

The legal framework

Presumption of innocence

[74] The accused by his plea has denied the allegation of sexual assault. He started his trial on the sexual assault aspect of Count 2 presumed to be innocent of the charge he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that he committed the offence with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. As Laskin, J. (as he then was) held in R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303, at para. 33: “[T]he presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit … of any reasonable doubt”.

Sexual assault

[75] For a finding of guilt to the charge of sexual assault, the Crown must prove, beyond a reasonable doubt: a direct or indirect application of force to another person, of a sexual nature, in the absence of consent. As to mens rea, the accused need only intend to do the touching, as it is a general intent offence: Criminal Code, ss. 265(1) and (2), 271; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 25, 41; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 12.

[76] Concerning the element of the complainant’s consent to sexual contact, s. 273.1 of the Criminal Code sets out situations in which no consent is obtained, including s. 273.1(2)(b), where “the complainant is incapable of consenting to the activity”, and (d), where “the complainant expresses, by words or conduct, a lack of agreement to engage in the activity”.

[77] The test for determining whether the assault at issue is of a sexual nature is an objective one. In R. v. Chase, at para. 11, McIntyre J. made the following observations about “sexual assault”, relating to the definition of “assault” in then section 244 and the charge of sexual assault at section 246.1 of the Criminal Code:

11 … Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" … . The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. … The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [references omitted]

Credibility and reliability

[78] In this case, the issue that directly confronts the court is the credibility and reliability of the evidence of the complainant. For it is that evidence on which the Crown relies in the main to satisfy its burden on the charge of aggravated sexual assault, and it is to problems with that evidence that the defence points in submitting that the court must have a reasonable doubt.

[79] In R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A., reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 12-14):

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G.(M.)… (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G.(M.), at p. 354.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G.(M.), at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31. [some references omitted]

[80] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A., in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at para. 41, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, he states “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[81] In making these assessments, it is necessary to bear in mind that people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events. In particular, the authorities teach that courts must decide sexual assault cases “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: R. v. Shearing, 2002 SCC 58, at para. 121.

[82] One common example of this axiom, relevant to this case, relates to when and how people who are alleged to have been victims of abuse report that abuse. There are many completely understandable reasons why people delay disclosure of abuse, or aspects of abuse, including embarrassment, fear, a sense of guilt, or a lack of understanding or knowledge. The timing of disclosure “is simply one circumstance to consider in the factual mosaic of a particular case”, and delayed disclosure need not cause an adverse inference against a complainant’s credibility: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

Positions of the parties

Crown position

[83] The Crown submits that the evidence in this case is not only sufficient to ground the allegation of Aggravated Assault in Count 1 to which a plea of guilt was entered, but also the allegation of Aggravated Sexual Assault in Count 2.

Defence position

[84] It is the position of the defence that the evidence is insufficient to establish that any sexual assault took place. The defence submits that the complainant’s evidence is incredible and unreliable in significant ways, and must leave the court with a reasonable doubt about the charge of Aggravated Sexual Assault.

Analysis

[85] In the analysis that follows, I have considered all of the evidence on the trial, even if I have not mentioned it all in these reasons.

Count 1 – Aggravated Assault

[86] I find that the following facts have been established beyond a reasonable doubt. The bulk of these facts were not contested by the defence.

[87] On April 2, 2016, the complainant was set upon by the accused as she was walking along a trail in Wikwemikong from her friend R.M.’s home to her brother’s home.

[88] The complainant had consumed a substantial quantity of alcohol the night of April 1 to April 2, 2016, mostly rum from a 26 ounce bottle of Bacardi that she brought with her from place to place. At one point during the evening, she passed out drunk from the alcohol she had consumed, but continued to drink when she regained consciousness, and before leaving R.M.’s after it became light in the morning of April 2. It would appear that the accused had also been consuming alcohol.

[89] The accused followed the complainant closely from R.M.’s, although the two did not personally know each other. They did not speak to each other. The two ultimately came to a trail that led by a Youth Centre and up to the area where the complainant’s brother lived.

[90] Once the complainant entered the trail over a board bridge, and had proceeded into an area with trees on each side, the accused commenced his assault upon her. He pushed the complainant, and when she continued on her way after asking him what he was doing, he told her that she was pissing him off and then set upon her with serious violence.

[91] The accused punched the complainant about her face and head, and struck her with a stick he had picked up. The complainant’s head and face were gashed by the accused’s beating of her. The complainant screamed for help, and attempted to flee. The accused continued his assault, choking the complainant repeatedly and causing her to lose consciousness several times.

[92] The accused grabbed the complainant by her hair, and dragged her up and down a hill on her knees as she struggled to reduce the pressure on her hair and to stand up. This part of the assault caused the flesh to be scraped from one of the complainant’s knees, itself a wounding, and significant bruising to the other knee. She suffered bruising to her elbows as well, probably the result of being dragged, and scrapes on abdomen and lower back.

[93] The complainant suffered bruising and scratching over many areas of her body: her head, her face, her torso, her arms and legs. Her lower back was a mass of scratches. Her eyes were swollen shut, and her lips blackened and bloody. A finger was broken. Four wounds on her head and above an eyebrow had to be stitched closed.

[94] At one point, the complainant escaped from the accused and ran to the Youth Centre, where she sought assistance, but it appears that the Centre was closed. Nevertheless, video cameras at the Centre record the accused’s relentless pursuit of the complainant, and that she would appear to have lost her jacket and bag during her interaction with the accused. The two appear to speak in the video, and it is likely at this point that the accused issued his threat to kill the complainant’s family if she told anyone. The accused grabbed the complainant and threw her down the stairs, but the complainant kept her balance and ran.

[95] The lengthy and ongoing assault only ended when the complainant escaped the accused and fled to the road, where she was picked up by people in a vehicle who stopped for her and called an ambulance for her.

[96] I am satisfied, beyond a reasonable doubt, that the accused committed a violent and lengthy assault upon the complainant that caused her significant wounds to at least her head and knee, and serious injuries over much of her body.

Count 2 – Aggravated Sexual Assault

Sexual assault: intercourse?

[97] The complainant testified to penile penetration by the accused of her vagina.

[98] This testimony is not directly supported by any other evidence in the case. Forensic DNA analysis offers no particular corroboration. Bruising in the complainant’s peri-vaginal area could have been caused by any number of things; I cannot say that it must have been caused during penile penetration of the complainant’s vagina. I explain below my finding that the accused unfastened and lowered the complainant’s pants. Again, that conduct does not corroborate penetration to any significant degree. In my view, in the circumstances of this case, I can only make a finding of penetration if I am satisfied that it occurred, beyond a reasonable doubt, on the strength of the evidence of the complainant.

[99] In the context of all of the evidence of this case, I consider the following to be important considerations about the complainant’s credibility and reliability:

a. The complainant had consumed a significant amount of alcohol on the night in question. She was intoxicated to the point of passing out at R.M.’s home for several hours. She continued to consume alcohol when she regained consciousness. She testified that she was significantly impaired;

b. The complainant was savagely beaten about the head by the accused, and testified that she lost consciousness several times. She also testified, unsurprisingly, that her memory was affected by the beating to her head;

c. The complainant has provided different accounts about how she lost consciousness before the sexual assault: she testified in this court that she was choked into unconsciousness, while to her mother in her initial recounting of what had occurred she was emphatic that she was struck with a stick or bar in the head, “saw dots”, and lost consciousness;

d. The complainant variously admitted but mostly denied to emergency personnel and hospital personnel at various times that a sexual assault had occurred. Even when she claimed that a sexual assault had occurred, the complainant provided no details to these persons;

e. The complainant’s earliest indication of being sexually assaulted, to Ms. Fox, only came after Ms. Fox asked her directly whether she had been sexually assaulted. I do not see the complainant’s agreement as a fabrication, but repeated questioning of this nature by various persons could well have contributed to inaccurate assumptions by the complainant about what had actually taken place;

f. The complainant was in pain, “in shock”, perhaps concussed, and medicated after she was picked up by ambulance. The effects of these factors may help explain her inconsistency about being sexually assaulted, but they do not enhance the reliability of her evidence;

g. The complainant’s testimonial sequence of events leading to the disclosure of a “sexual assault” to her mother is at odds with her mother’s recollection of events;

h. The complainant testified to penile penetration by the accused of her vagina, but merely told her mother, to whom she apparently gave her first account of the sexual assault, that when she regained consciousness, the accused was doing up his pants, with no mention of penetration. This is a significant omission;

i. If the complainant told the police investigator about vaginal penetration in her audiotaped statement in the hospital in Little Current, I have been given no information about it. I would have expected such evidence, if it existed, to rebut the allegation of “recent fabrication”, and thereby to rehabilitate this aspect of the complainant’s testimony, given the absence of this detail in the complainant’s statement to her mother. I merely make this observation, but cannot presume that there was no mention of penetration in the complainant’s statement to police;

j. I make nothing of the evidence of a half-full Bacardi bottle that is in evidence, in the face of the complainant’s insistence that she had finished her bottle. I am not satisfied that the one in evidence is the complainant’s, given the complainant’s denial, the evidence of D.C., and the unsatisfactory nature of the evidence relating to the origin of the bottle;

k. I am unable to conclude that the complainant erased her mother’s recording of the complainant’s statement. The complainant testified that she does not know how the statement got erased, and I have not heard sufficient evidence to satisfy me that the cellphone recorded the statement properly. The recording apparently was not reviewed by A.M. before it was lost;

l. In her testimony at trial, the complainant spoke for the first time of her meeting with her friend B. at the “T building”, of the accused’s stomping on her ankle, and of his choking her with his elbow. While I have instructed myself that this complainant in particular has good reasons to delay reporting some details, these are not insignificant omissions from earlier versions of events, and must affect my assessment of the complainant’s reliability.

[100] Given these factors, I am not able to view the testimony of the complainant in this case as sufficiently reliable to find, beyond a reasonable doubt, that the accused penetrated her vagina with his penis while she was lying on the ground. There are too many ways in which the evidence of the complainant is simply unreliable. While I am extraordinarily sympathetic to the complainant for what happened to her during this extended assault, it is unavoidable that her injuries, the considerable amount of alcohol that she consumed through the night before this incident, her denials of sexual assault, and her significant inconsistencies, omissions, and late-occurring additions must make me extremely cautious about accepting her evidence about penetration, a particularly aggravating sexual aspect of her testimony.

[101] I have observed as well that the videotape from the Youth Centre does show a brief period when the accused is lying on the complainant’s back on the ground, as she described in her account of the accused’s penetration of her. However, the accused was so placed for a matter of seconds only, and the video resolution does not permit any definitive finding that the accused could have been penetrating the complainant in that position. Rather, his pants appear to be mostly in place during this interlude, though the accused does something at his waist once he gets up, and again after he throws the complainant to the ground once she gets up.

[102] It is not the credibility of the complainant that concerns me, for I find that she attempted to be truthful with the court about what was, for her, a devastating attack that will have lifelong ramifications. I believe the complainant, but find some of her memories insufficiently reliable to ground a finding of fact to the criminal standard about penile penetration.

Sexual assault without intercourse?

[103] However, that does not end the analysis of this issue. For sexual assault, of course, can be committed even without vaginal penetration.

[104] Has a sexual assault been made out, even in the absence of proven vaginal penetration? In Chase, the operative question was put this way: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?" In answering that question, I highlight the following in all of the circumstances of this case:

a. The accused was all but a stranger to the complainant;

b. The accused caught up to and followed the complainant from a house party to a relatively isolated area, and proceeded to assault her very violently;

c. The assault began with a push from the accused that the accused explained to the complainant was generated because she was “pissing him off”. To that point, all the complainant had been doing was walking and ignoring the accused;

d. Much of the assaultive conduct involved beating of the complainant about the head with fist or stick, or choking of the complainant to the point of unconsciousness three times. The accused plainly wanted the complainant unconscious;

e. At one point, the accused rendered the complainant unconscious on the ground. The complainant asserted that when she regained consciousness, her pants were around her ankles, and her underwear was down. In this position, her genitalia would have been exposed;

f. The complainant did not consent to any sexual encounter with the accused, who had been violently assaulting her for some time before the complainant’s jeans were removed. And indeed, I find that at the time that the complainant’s jeans were removed, she was unconscious, and not able to consent;

g. The second video from the Youth Centre captures quite clearly the image of the complainant running while holding her pants up at the side, or pulling her pants up, thus corroborating the complainant’s account that her pants had been pulled down. I accept the complainant’s evidence that she found her pants down when she regained consciousness;

h. The complainant testified in cross-examination that she was not able to fasten her pants before she was running to the road after she had first gone to the Youth Centre. Thus, her pants were not simply down around her ankles, they had been unfastened. Being dragged could not account for the complainant’s pants being unfastened. I find that it must have been the accused who unfastened the complainant’s jeans, and pulled them and her underwear down to her ankles, when the complainant was unconscious;

i. The first video from the Youth Centre shows the accused go to the ground on top of the complainant’s back, his groin to her buttocks, and remain there for many seconds before he gets up and off of her, after which he can be seen to busy himself with his pants in some way. When the complainant gets to her feet after the accused has been on top of her, he appears deliberately to throw her to the ground, and then busies himself again with his pants;

j. The complainant testified that when she returned to consciousness, the accused apparently secured his own pants before the complainant could do up her own, and continued to beset her when she tried to flee. The complainant’s account to her mother about the accused’s fastening of his pants when she regained consciousness does serve to rebut an allegation of recent intentional or unintentional fabrication, of that detail at least, although the complainant did not mention penetration to her mother. I accept from the evidence of the complainant that the accused had undone his pants;

k. It is clear on the evidence in this case that the complainant felt sexually violated by what the accused had done to her. Thus, the complainant confirmed to first responder Ms. Fox that a sexual assault had occurred, even though the complainant provided no details, and even though she was later that day unable or unwilling to provide details about a sexual assault;

l. The examination by the sexual assault nurse records evidence of bruising in the complainant’s peri-vaginal area. Some force somehow was applied there. A.M.’s evidence was that the complainant had no injuries a few days prior to this incident, but the vagueness of the evidence in the case about this injury permits little use for it in the overall analysis.

[105] Trial and appellate courts have held that a charge of sexual assault can be made out where items of clothing have been moved or removed. Removal of pants in circumstances where the accused had rendered the complainant senseless by a blow was found to be sufficient for a conviction for sexual assault in R v. M.S.W., [1995] B.C.J. No. 1445 (C.A.). In R. v. J.P., 2017 ONSC 5578, at para. 216, Broad J. held that the pulling up of a scrub top to see if a complainant’s pants were sheer constituted sexual assault. See also R v. S.(T.), 2003 YKTC 56, at para. 2, and R. v. Moses, 2017 SKPC 62, at para. 56.

[106] In this case, the accused set upon the complainant only after he had pursued her to a relatively isolated location. The accused’s choking of the complainant rendered her unconscious and therefore helpless. The accused deliberately unfastened the complainant’s jeans, and took down her jeans and underwear, thereby exposing and providing access to her genitalia. I find that the accused had a sexual intent when he took down the complainant’s pants and underwear in this way. He thereby at the least applied force directly or indirectly to the complainant without her consent, in an objectively sexualized context, and with a sexual intent. I am satisfied beyond a reasonable doubt that this was a sexual assault.

[107] In that constellation of circumstances, the accused’s taking the complainant to the ground and lying on the complainant’s back even for just some seven to nine seconds, as captured in the first video from the Youth Centre, his apparently clothed groin to her clothed buttocks, also objectively takes on the hues of sexualized conduct. I am satisfied beyond a reasonable doubt that this further substantiates a sexual intent on the part of the accused. I saw on the video no indication that the complainant’s pants were down after this part of the incident, or unfastened. This part of the incident was evidently a preliminary step to the later sexual assault. I find that the complainant’s jeans were taken down by the accused after this conduct captured by the videotape, at some point when accused and complainant are out of sight behind foliage, and before her image is captured running to the Youth Centre with her hands holding her pants.

[108] I stated above that I am unable to find, beyond a reasonable doubt, that the accused vaginally penetrated the complainant. I do find, however, that the accused intended to do so, and was only prevented from further misconduct by the complainant’s return to consciousness.

[109] I find as a fact, beyond a reasonable doubt, that it was the accused’s intention, by his assault on the complainant, to render the complainant unconscious on the ground so that he could have sexual intercourse with her without any resistance from her at all. The complainant was unconscious when the accused took down her jeans and underwear, and loosened his own pants. Since the complainant was unconscious, there could be no consent, even if consent were possible in the circumstances of this terrible physical assault. The complainant regained consciousness with her pants down. She saw the accused fastening his pants, demanded to know what he was doing, and pulled up her own pants. The accused then continued his assault upon her, and the complainant fled to the Youth Centre.

[110] As I have found and described it, the sexual assault is necessarily part and parcel of the aggravated assault to which the accused has pleaded guilty. I find the aggravated assault and the sexual assault to be part of a single transaction.

Conclusion

[111] Accordingly, for the above reasons, a conviction will be registered on Count 1 of the Indictment, the charge of Aggravated Assault.

[112] Also for the above reasons, a conviction will be registered on Count 2 of the Indictment, the charge of Aggravated Sexual Assault.

A.D. KURKE J.

Released: February 8, 2018