WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

. . . 486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

COURT FILE NO.: CR-18-4 DATE: 2019/05/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – M.L.

Counsel: Aquilas Kapend, Counsel for the Crown Donald W. Johnson, Q.C., Counsel for the Accused

HEARD: April 25 and 26, 2019

REASONS FOR JUDGMENT

leroy, j.

Introduction

[1] ML is charged with sexually assaulting DW. They began cohabiting as spouses on June 1, 2006. DW recalls this incident in the early stage of their relationship. ML is also charged with assault arising from events on September 15, 2016, after they separated when ML attempted to serve the complainant with responding documents in family court proceedings. The defence adduced evidence at trial so the W.(D.) analysis bears on this analysis.

The Narrative

[2] Identification and jurisdiction were formally admitted.

[3] DW was born […], 1971. She has four children: S – 30, DR – 14, P. – 11 and N - 9. ML is the father of PL and NL.

[4] ML has two other children from a former union.

[5] Both were separated when they met. ML worked for a local furniture outlet and owned a home in Alexandria.

[6] DW and ML met on a dating site in early 2006. DW together with DR then age 2 moved in with ML. It was a common law relationship. DW characterized herself as a stay at home mother save for a brief stint with Paramed.

[7] The allegation is that between June and September, 2006 or before the weather changed, ML indicated his wish to engage in sexual congress but DW declined. She said he had been drinking beer and disliked the smell. She was wearing a night gown. He placed his hands on her shoulders, laid her on the bed, pried her legs open, placed his knees between her legs and penetrated her until he ejaculated. She said she did not resist, rather turned her head to the wall and waited it out.

[8] Defence elicited on cross-examination that DW located the time of the assault as newly into the relationship during preliminary hearing testimony, but was unsure of the time. She agreed she did not confine the time of year to June to September. DW confirmed that she has no recall of the date and time of day; she remembers she said no and he had sex with her. She recalls that the sun had not gone down. DW does not recall the duration of the incident or anything about what preceded the incident.

[9] When DW raised the issue of what no means she said ML told her the police would not believe her because she is his girlfriend and he was a life-long resident of Alexandria. She did not go to the police in Alexandria because she was scared they would not believe her. At the time, DW was thirty-four.

[10] ML said he never forced sexual intercourse on DW, they never had a conversation regarding disregard for demur, local immunity from prosecution, that the Alexandria OPP would not believe her because he was a life-long resident and she was his girlfriend. He said that the first time he learned about this was when he was arrested.

[11] ML confirmed that DW left the house a couple of times. He attributed the brief separation in 2006 to complications DW was encountering at the time with DR’s father. He observed she was an emotional person and the relationship between she and DR’s father was fraught. ML said DW never told him that sexual assault was the reason for leaving the house.

[12] DW said she left ML the next day without notice, she went to stay with a friend in Winchester and texted ML to explain why she left – sex after she said no. She said he loved her and promised to never override her wishes about sexual engagement again. She said that after one or two months she returned and he never did do it again.

[13] The Crown did not call the friend with whom DW stayed in Winchester as part of trial narrative.

[14] ML confirmed that DW left without notice the first time. When he contacted her by text, he learned she was in Winchester. He thought this was strange behaviour and asked why. When the Crown suggested she told him it was because of the prior day’s events he said no, she said this was a conflict between DW’s parents.

[15] ML said that when DW returned, DR was not with her. He said she told him the father wanted DR to live with him. ML said he wondered about the cost - benefit of the decision to return to Alexandria with him if it meant DR stayed with the father and he conveyed that to DW

[16] DW did not disclose to the police detachment in Winchester.

[17] DW denied advising ML that she left because of issues with DR’s father.

[18] After the reintegration, DW learned in 2007 that ML had been unfaithful to her. In the ensuing confrontation, DW threatened that if she had a knife he would be buried in the basement. ML said he escaped to the bathroom and locked the door. He heard DW digging in the cutlery drawer before she began banging on the bathroom door. DW was charged and after participating in an anger management course, charges were dropped in return for a peace bond a term of which was that she was to not have contact with ML. ML said that DW honoured the no contact prohibition in the breach by contacting him daily over the year.

[19] They reconciled.

[20] They stayed together until August 1, 2011. They had two children – She said they fought a lot but there were good times and as examples, she mentioned Christmas and Easter and the children.

[21] They enjoyed a cordial separation. DW subsisted on Ontario Works and remained resident in Alexandria, they carried on a viable custody access routine and ML paid the proper amount of child support.

[22] DW initiated a family court action against ML alleging he was in arrears on child support obligations. September 15, 2016 was the last day ML had to deliver response materials. ML apparently understood he was obliged to personally serve DW with the response documents and it was his responsibility to ensure she accepted them.

[23] When they encountered one another in the street, there is consensus that DW was wearing a top with a hood. ML called her name and told her he had papers – DW understood that ML was not allowed to serve response documents on her and refused to voluntarily accept them. She said that after ML said “Are you seriously not going to take the documents” he pulled the hoody to her left and attempted to place the papers in the hood. She said she was pulled to the left and the force left a mark on her neck. When ML attempted to place the papers in the hood, DW swatted his hand away and foiled the effort. She asked him what he was doing and admonished him saying “you do not have the right to touch me.” She grabbed her friend’s arm and walked away.

[24] DW asserted that the force applied caused a red mark on her neck and a sore back. She did not require medical treatment. DW said this incident was reported to police when she called for clarification regarding document service.

[25] The protagonists confirm that DW’s friend, JC was present for this incident. JC said she and DW were walking to the mail boxes when they met ML. She recalled that ML hoped to serve DW with papers. JC told ML he could not serve papers on DW.

[26] JC said that ML reached out with his right hand to open the hood so he could insert the papers. He was not forceful but that DW pulled away and stood behind JC. The two women kept on walking to the mail boxes. ML tried to follow but the women went home.

[27] ML’s version of the street encounter is slightly different. September 15th was the last day for serving response documents. It was eleven a.m., he was walking to DW’s house to serve her, he observed DW and JC on the street walking to the mail boxes and called out to DW to apprise her of his intentions. He confirmed that DW refused to accept the documents. He pleaded and she demurred. He reached out to place the documents in the hood, he said was open. He said she pushed his hand away. He waited there. JC said he did not have the right to serve her and that was the end of the encounter.

[28] The defence offered an eye witness, CM. She said she observed ML place papers in the hood.

[29] Constable MacWhirter of the OPP investigated the domestic report. He obtained DW’s statement. He did not observe a red mark on DW’s neck until she showed it to him. From his viewpoint the mark was not obvious and he was not persuaded it was associated with the incident.

[30] DW did not disclose allegations regarding historic sexual assault during the initial interview. It was only when DW was asked to complete the domestic violence supplementary form that she began disclosure relative to it.

Issues

[31] The central issue in the sexual assault charge is a factual one; that is, whether the Crown has proved that the act alleged occurred. This turns on whether the Crown has proved the credibility and reliability of the evidence given by the complainant beyond a reasonable doubt.

The Governing Principles

[32] The presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case as in any other criminal trial; however, there are aspects of sexual assault cases that can make the application of the standard a difficult one.

[33] The very nature of the act underlying sexual assault means there are seldom eye-witnesses apart from the complainant and the person accused of the offence. Often, these cases come down to the word of one person against the other. In that situation, it is wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so misapplies the burden of proof on the Crown to establish guilt beyond a reasonable doubt.

[34] That burden remains on the Crown so that the accused person is not required to prove his innocence, or disprove any of the evidence led by the Crown. So if the trier believes the accused person’s evidence or any other exculpatory evidence to that effect, or if not confident about accepting the Crown’s version of events, acquittal is required.

[35] Rejection of the accused person’s evidence is not proof of guilt. Even if the trier completely rejects the accused person’s evidence, it is an error to assume the Crown’s version must be true; rather there must be a careful assessment of the evidence that is believed to decide whether that evidence persuades beyond reasonable doubt the accused is guilty.

[36] An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond reasonable doubt of the truth of the conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence – In R. v. Posner the diaries brought significant credibility enhancement to the complainant’s evidence.

Context for the assessment of the credibility of the complainant

[37] Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate.

[38] One 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 he/she said on other occasions, whether or not under oath : R. v. G. (M.) (1994), 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, 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.

[39] Not all inconsistencies are of equal importance. Some are minor, others are not. Where inconsistencies involve something material about which an honest witness is unlikely to be mistaken, they may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.) , at p. 354.

[40] Courts have been cautioned not to ascribe too much weight to demeanor as demeanor is often more a reflection of life experience, cultural background, personal skill-set and individual personality than it is a reflection of credibility.

Delay in reporting and absence of avoidant behaviour

[41] There is no one way for victims of trauma like a sexual assault to behave. There is no normal way to behave after a sexual assault. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and include at least embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant – R. v. D.D., 2000 SCC 43 para. 65.

[42] As with delayed complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “ must not be the subject of any presumptive adverse inference based upon rejected stereotypical assumptions of how persons react to acts of sexual abuse”: D(D ) at para 63 –

Motive to Fabricate

[43] The existence or absence of reason to make a false allegation is a factor which triers of fact, using common sense, will and should consider in assessing a witness' credibility. What must be avoided is any suggestion the accused has an onus to demonstrate that a complainant had a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of an apparent motive to fabricate conclusively establishes that a witness is telling the truth – R. v. Batte, 49 O.R. (3d) 321,[2000] O.J. No. 2184.

Corroboration

[44] Corroboration of a complainant’s testimony is not required for a judge to find that a criminal offence has been committed – s. 274 C.C.C. That said, in determining the credibility and reliability of a witness’s evidence, corroborating evidence may be of assistance in allowing a trier to have confidence about whether an event occurred or not.

Application of these principles to the evidence

The common assault

[45] I accept that JC was the most accurate narrator. I accept that ML reached out and tugged the hood so he could place the papers inside. I don’t accept DW’s assertion of a forceful pull to the side. She pulled away. I don’t accept ML’s assertion of a reach to place the papers into an open hood.

[46] Regardless, as Mr. Johnson noted, the reaching out without consent would be an assault under subsection 265(1)(b). The pull on the hood would be an assault under subsection 265(1)(a).

[47] ML is convicted on that count.

Allegation of sexual assault

[48] This is not a situation where the stacking of the complainant’s evidence against that of the accused results in an outright rejection of the accused’s evidence. This case turns on the W.(D.) analysis.

[49] This is not a case about inconsistencies. The inconsistencies elicited were inconsequential.

[50] The common evidence is that the complainant left the home without notice.

[51] The defence version is that the only explanation for leaving ML had from DW is that she left in response to ongoing issues with DR’s father. DW had only recently moved DW’s residence from where she resided before the move. DW did not reveal to the Court her place of residence before moving in with the accused on June 1, 2006. A mobility dispute is not an unreasonable reason for returning the child to mollify an aggrieved parent while they sort out the details.

[52] That version does not accord with DW’s narrative. I can’t say that DW’s narrative is unbelievable. The leaving without notice to avoid drama the morning after non-consensual sexual intercourse is circumstantial plausible evidence consistent with her narrative.

[53] The issue is whether it is the only plausible narrative. The function of the trial process is to get at the truth. Unfortunately the process often delivers snippets of what counsel and the protagonists believe are of assistance with that function. The burden of proof and presumption of innocence compel rigorous review. DW denied she left because of issues with DR’s father. That denial closed the door on the line of questioning.

[54] Mr. Johnson noted that the Crown did not adduce evidence from the friend in Winchester with whom DW stayed for a month or two as part of trial narrative. The Crown is under no obligation to produce any particular witness. RH’s testimony could not be used for the truth of anything DW told her; rather the probative value would lay in the fact the statement was made. It could have confirmed the fact and timing of the complaint or not which could have helped assess the truthfulness and credibility of the complainant. RH could have been helpful about DW’s frame of mind during the time DW stayed with her.

[55] The fact of the domestic assault in 2007 and the manner it rolled out at trial gives pause. That persona was not fearful of ML. The Crown suggested her acknowledgement of those facts on cross-examination is evidence of reliable veracity. I disagree. She did not have choice but to acknowledge. She was not going to say anything about that incident unless defence raised it but once it was she had to know that persistence with omission or denial would be fatal to her credibility.

[56] DW neglected to apprise the Court of the consequential legal hiatus resulting from the peace bond disposition. ML noted that DW honoured the contact prohibition in the breach. The breach of a peace bond as with any criminal justice restraint is evidence of deceit.

[57] That the complainant determined to disclose only after she was presented with the domestic violence follow-up questionnaire could be construed as ingenuous response relief from debilitating concern she would not be believed or it could be momentum from positive response to the common assault disclosure. DW said she wanted an order for sole custody. ML wanted joint custody. False assault allegations are not unheard of in family court litigation.

[58] I did not accept either of their versions relative to the common assault.

[59] Crown counsel argued that ML’s rendition of events strains credulity. It does if one presumes guilt. It does not if one presumes innocence.

[60] This is a case of she said/he said. I am not persuaded of either narrative. The Crown did not adduce evidence from RH that could have been dispositive of the contested issue as to the circumstances and DW’s state of mind at the time. The Crown did not prove ML’s guilt for the offence of sexual assault beyond reasonable doubt.

[61] ML is acquitted on the charge of sexual assault and convicted on the charge of common assault on September 15, 2016.

The Honourable Mr. Justice Rick Leroy Released: May 28, 2019

COURT FILE NO.: CR-18-4 DATE: 2019/05/28 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – M.L. REASONS FOR JUDGMENT The Honourable Mr. Justice Rick Leroy Released: May 28, 2019