ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17-0533
DATE: 2019 02 04
BETWEEN:
Her Majesty the Queen
– and –
T.H.
Defendant
J. MacDonald, Counsel for the Crown
D. Sederoff, Counsel for the Defendant
HEARD: October 10, 11, 2018
December 10, 11, 12, 13, 2018
February 4, 2019
LEMON J.
JUDGMENT
Issue
[1] T.H. is charged with committing sexual assault on A.R. on February 18, 2011. He is also charged with three further counts of sexual assault. Each of those assaults allegedly occurred between May 1, 2010, and March 22, 2012.
Evidence of A.R.
Background and Context
[2] A.R. met T.H. in May 2010. They started dating and T.H. moved in to A.R.’s residence three months later. A.R.’s apartment was a two-story, two-bedroom unit with a bathroom in the basement, located at the rear of an old brick house.
[3] The couple was married in December of 2011 in Niagara Falls. They were together from 2010 to 2012. A.R. testified that she had been physically, emotionally and sexually abused in their relationship, particularly in 2011.
[4] She testified that T.H. got upset with her whenever he thought that she had interrupted him. He would also complain that she was ungrateful and that she was stupid. He was abusive to her when she talked back to him, blamed him or yelled at him.
[5] A.R. testified that on many occasions, T.H. prevented her from breathing. He did this with one hand, both hands, his forearm or by placing things down her throat. He put plastic bags and kitchen towels and crumpled paper in her mouth. This occurred every week, if not more often.
[6] She did not believe that he was impaired at any time during these assaults, although he used marijuana every day and often smelled of alcohol. Only rarely did she “witness the consumption of alcohol” by T.H.
[7] During that time, she felt violated and terrified. She was ashamed and scared. She continued in the relationship but did tell him to leave and to leave her alone. She told him that the relationship was over and she could not take his abuse anymore. At times, she had said that she was sick and tired and could not take his behaviour any longer. She said that she was going to the police but he laughed at her and told her that no one would believe her. She came to believe that it was her fault that she was being abused.
[8] A.R. also said that T.H. owes her “thousands and thousands of dollars” that he borrowed from her, stole from her, took from her bank cards or received because she paid his bills.
Count One
[9] The first incident that A.R. was questioned about was referred to as the “rib incident” at their residence in 2011.
[10] The couple had been arguing and that led to T.H. beating her severely in a main floor room. In particular, T.H. kicked her repeatedly in the torso, stomach, and rib cage; she believed that she may have had a broken rib. T.H. swore at her and called her a number of derogatory names while this was going on. She did not speak to him except to scream. The assault occurred over approximately one half hour to an hour. T.H. kicked her several times while she was on the floor.
[11] At one point, late in the assault, she could not breathe and thought that she was going to die. T.H. apparently thought so too because he got down on his knees to speak with her while she caught her breath. At that point, the assault came to an end.
[12] Later that day, or the day after, the police came to speak to her because someone had called the police about what had occurred. A.R. denied that she called the police. At that time, she did not tell the police what had occurred but rather “covered for him”. She was afraid of T.H. and thought that he was going to kill her. After the police left, T.H. said that she had told their secrets and would be punished for it.
[13] A.R. testified that on that night, T.H. sexually assaulted her. She was laying in her bedroom on a heating pad because of the pain in her rib. T.H. crawled on top of her and pinned one of her arms down. He also banged her head against the radiator. He was rough with her and she could not breathe. At one point, he tried to suffocate her by putting his forearm over her mouth. He also attempted to strangle her with one hand. She does not remember if he said anything but she asked him what he was doing, told him that she could not breathe and that he should get off of her. He forced his penis into her vagina. The assault came to an end when he ejaculated on her face.
[14] She did not consent to what occurred.
[15] As a result of these events, she was injured with “severe whiplash”, a possible concussion and pain in her torso.
[16] Afterwards, she told him that he was selfish but she stayed in the relationship because she was afraid, embarrassed, and ashamed. When they talked about it afterwards, she said that he was “a jerk” and he called her a liar. He said that he was trying to make up to her with a romantic gesture and that she should stop complaining.
Count Two
[17] There was another incident in 2011. This was referred to as “the shoe incident.”
[18] The couple were arguing about her purchase of shoes for him at a Walmart store. He thought that she was being cheap. He threw one of the shoes at her and hit her in the head. With the other, he started striking her. She rolled up into a ball and he continued to strike her all over her body. He called her a number of names and said that he was embarrassed about wearing Walmart shoes.
[19] Several hours later, he sexually assaulted her in her bedroom. In this assault, he pushed her face against a mirror in her room. He then knelt her over her bed and anally and vaginally penetrated her towards the mirror. Although she screamed and cried, it went on for 30 to 60 minutes.
[20] At the time, he was 200 to 250 pounds and she was approximately 135 pounds. She was unable to get away from him because she was pinned against the bed, he was holding her hair and penetrating her.
[21] As a result, she had injuries to her head, her hair was pulled out and her knees were bruised. Her anus was torn and her vagina was bruised. She had overall burning and soreness and discomfort for weeks.
Count Three
[22] There was a third incident in 2011, referred to as the “knife incident”. A.R. was not sure if this occurred before or after the other two incidents. It was in the summer because she remembers that the windows were open. After it occurred, she went to a “summer institute” where she worked.
[23] This event occurred in T.H.’s room. He had kept A.R. up all night arguing but she cannot remember what the topic was. He was on his bed and threatened to kill himself with a knife. He drew the knife across his neck and cut himself. It was a small kitchen knife. He said something about her betraying him.
[24] She screamed for help and thought that someone might come because the window was open. She thought that he was going to come after her next.
[25] A.R. described that he “toppled” her on to his mattress and pinned her legs and arms. He attempted to suffocate her by putting his forearm to her mouth. He also tried to strangle her with one hand to her neck. She was crying and choking. She thought that he was “on acid”. She thought that if she tried to move he would snap her “windpipe”.
[26] He then sexually assaulted her. While he did so, he was swearing at her. This came to an end when he ejaculated and got off of her. They then continued to argue until she went to work. She believes that it occurred about noon that day. Later on, at work, A.R. was to facilitate a workshop on non-violent communication.
[27] After this assault, her whole body was sore. Her throat and vagina were sore and there was bruising to her face.
Count Four
[28] The Crown’s submission is that count four is based on a number of incidents not specifically referred to above.
[29] The first was an incident in January 2012. There had been a New Year’s celebration after A.R. and T.H. were married; they went out for sushi. This was to be a new year, a new marriage, and a new start without any violence.
[30] However, they argued on the way home because he was spitting on the street. The spitting was a “triggering event” to her and she ran ahead of him. He caught up to her at the door to their apartment and they had a fight in the main floor kitchen. At one point, she was on the stairs to the basement with her back to him. She could not tell whether he pushed or kicked her but she fell down the stairs as a result of what he did. She ended up at the bottom of the stairs, landing on her neck. When he came down the stairs, she was dizzy and disoriented and could not stand. He picked her up and threw her into her room. He was yelling, spitting and arguing with her.
[31] When he threw her into the room, she hit her back on the radiator. He also threw her into a table and onto a chair. He was screaming at her that she was ruining his romantic intentions. He then sexually assaulted her on the floor. She did not consent. She was screaming and crying while it was going on. He spit on her and down her throat. She does not know how long this went on but eventually it came to an end.
[32] As further evidence to support count four, A.R. testified that T.H. would generally treat her badly sexually. He would walk up to her and slap her in the face with his penis. He tried to suffocate her with his penis and testicles. While she was making dinner, he would grab her face and shove it into his crotch. He would also put his fingers into her anus and vagina and pull. He would slap her breasts or her bottom. When she was showering or bathing he would ask her to urinate on him. She did so to avoid being strangled, but she did not consent to any of these activities.
End of the Relationship
[33] March 22, 2012, was her birthday. She was at work when she received a call from T.H.’s employer, who said that T.H. had not been to work in two weeks. She went home and found him there and confronted him. They started arguing and he attacked her. He complained that he needed to sleep because she kept him up all night.
[34] At the end of the argument, he left the residence. When he did not return, she and his mother attempted to find him. They went to the police to get assistance to see about T.H.’s welfare. She then found out that he was in a local motel. She went with his mother because she was concerned that he was going to harm himself. They were unsuccessful in contacting him there.
[35] She was finally able to pick him up at the Guelph Greyhound bus station. By this point, she had rented a car because she did not own a car and felt unsafe around him without one. When she picked him up, he appeared to be drunk and was acting erratically. When she asked him where he had been, he got angry and attempted to get back on the bus. He then ran away from the bus and she ran after him. She was begging him for answers. In return, he hit her in the face with a bag that drew blood. He then pushed her against a wall and attempted to strangle her. She was able to pull away from him and run to the car, but he followed and they both got into the car.
[36] Her phone was on and the police called her about what had occurred in the public parking lot. The two of them were in the car together and she did not tell the police what had occurred.
[37] In court, she agreed that the two had been yelling and screaming at each other but she was not physically abusive of him other than to get away from him. In the car, she told him to recount the things that he had done to her and he did.
[38] At this point, she had a cut lip where he had bit her and she had a bruised neck. She also had cuts from rocks and asphalt that had been embedded in her legs when she had fallen trying to get away from him. He offered to take her to a bed-and-breakfast that he had arranged in Guelph. She agreed but thought that she should go to a pharmacy to clean herself up. They could not find a pharmacy that was open so they went to a 7-11 and bought Band-Aids and medication. They then drove to the bed-and-breakfast.
[39] When they got to their room, she went into the bathroom to pick the rocks out of her skin. She was afraid that she was going to bleed over the sheets and towels of the residence.
[40] When they were in the bed-and-breakfast, she told T.H that he was “an asshole.” They eventually went to bed together but when she woke up he was gone.
[41] When he left the bed-and-breakfast, she was frantic and concerned that he would kill her pets, her or himself. Again, she went to the police with his mother.
[42] After he left, she texted him and emailed him and called him. She was afraid of him and hated him but she also had some compassion for him because she thought that he was sick. She thought that it would be safer to have him back. By then, she did not love him but she told him that she did in order to protect herself and her pets.
[43] Eventually, he returned. But one day, he left for work and, although they talked on the street and she said that he “said some endearments” to her, he went to work and she never saw him again.
[44] On April 27, 2012, T.H. sent an email to A.R.’s employer, family and friends that sets out what he says she did to him that led to their separation. She agreed that she had done some of those things, but not others. She agreed that there were times when she panicked and disassociated but denied that she was delusional or blacked out, as T.H. alleged in his email.
[45] When T.H. sent this email, he had not yet been arrested. He was later arrested for the assaults in the parking lot. A.R. was aware that he had pled guilty to charges relating to that event and she provided a victim impact statement. By then, she did not know where he was residing.
Other Evidence
[46] Besides A.R.’s testimony, there were four other areas of evidence to be considered. A.R. gave statements to the police, she took pictures of her injuries, and kept audio tapes of conversations and arguments between her and T.H. In cross-examination, the defence entered many texts and emails into evidence.
Statements
[47] A.R. went to the police after the separation but only to speak of the assaults in the parking lot at separation. She agreed that she gave more than one statement to the police but did not report any of the sexual assaults until June 3, 2016.
[48] She gave her first statement to the police March 30, 2012. At that time she was sworn to tell the truth and said nothing about the sexual assaults. She thought that sexual assault was simply part of domestic violence. She was there to talk about the assault in the parking lot and did not think about saying anything about the sexual assault. She was not asked anything about a sexual assault.
[49] In that first statement, there are “indiscernible” entries. It was A.R.’s recollection that in those places, it is clearly understandable that she is asked if she will be getting into the sexual abuse allegations and she says no that she is too afraid. However, it is admitted by both counsel that the tape does not say that at all.
[50] On April 4, 2012, she gave another statement to the police that was video and audio-taped. She agreed that there was no mention of sexual assault in that statement.
[51] On April 25, 2012, she gave another statement with no mention of a sexual assault. This was a new male officer and she felt unsafe and fearful. She did not feel safe enough to divulge her life experiences to him. She asked several times to see the first officer but he was not available. She inquired about having a female officer interview her but she does not remember what the answer was.
[52] She made no other statement to the police until she went to them about these sexual assaults on June 3, 2016. At that time, she did not know where T.H. was.
[53] She spoke with a female officer on that day. A.R. came along with a woman from Women in Crisis. She does not remember the specific date but agreed that it was four years after he left from the bed-and-breakfast. She could not tell the officer about all of the sexual assaults because there were too many and some had become blurred. In that statement, she confirmed that T.H. drank bottles of brake fluid in front of her.
[54] She gave another statement August 21, 2018. At that time, she described the incident on the stairs for the first time.
[55] She agrees that at her preliminary inquiry, she lied to the police about being a member of a kickboxing group. Although she told the police officer that she was, in fact, she was not.
[56] A.R. gave several reasons for not reporting the sexual assaults until 2016.
[57] She was afraid that he would “blackmail” her by saying things to her friends and family. The “blackmailing” was that he would tell her family that she was drinking and smoking marijuana. Her father was dying at the time and she did not want him involved in these issues. T.H. had also threatened to send recordings to her family and her employer and her Member of Parliament. By 2016, her father had died and she believed that she was in less danger from T. H.
[58] She thought that all domestic violence was the same and did not distinguish between the physical assaults and the sexual assaults. She heard about the difference between domestic abuse and sexual violence several years later during her counselling. By June 2016, she was working with “Women in Crisis”, and was better educated on what sexual assault was.
[59] She also thought that T.H. might come back and kill her.
[60] She was finally ready and strong enough to come forward.
Photo Evidence
[61] A number of photos were put into evidence. With respect to the photos, A.R. is not sure if they were all taken from her phone. Some may have been taken from her friend’s phone. She does not remember if they were all given to the police at the time of the assault. She agreed that there were no pictures of any ripped clothing but her shoes were damaged in one of the pictures.
[62] Exhibit 1 is a photograph of A.R.’s neck and jaw line with respect to Count Three.
[63] Exhibits 2 (a), (b) and (c) are from the January 2012 assault.
[64] Exhibits 3, 4 and 5 are from assaults in the summer of 2011 for which he is not charged.
[65] Exhibits 6, 7, 8 and 9 are photos she took photos of herself at the bed-and-breakfast. Again, T.H. is not charged here with anything related to those events.
[66] A.R. testified that she bikes everywhere and sometimes on trails. She has fallen off of her bike. She was also involved with roller derby as a volunteer and other activities in 2013. Exhibit 14 is made up of photos of her bike injuries. She does not remember when these photos were taken.
Recorded Audio Evidence
[67] A.R. became aware that T.H. had secretly recorded her when he said to her “it’s been documented” or “it’s been heard”. She also saw a recorder fall out of his pants pocket. She then made recordings of him. Some of those tapes and transcripts were made exhibits at the trial.
[68] One is a recording of the police entering the home as a result of a 911 call. A.R. had been angry and loud enough with T.H. that she did not hear the police banging on the door. She does not remember when this occurred but accepted that it may have been 2011.
[69] Another exhibit is the transcript that A.R. recorded of T.H. She does not remember when it was done. In it, he is aggressive and threatening. He appears to be impaired in some fashion given the lengthy irrational comments that he makes.
[70] She made another recording while in the car after the altercation in the parking lot and before they arrived at the bed-and-breakfast. She agreed that he smelled of alcohol, his eyes were red, he was erratic and did not make complete sense. It confirms a physical assault – apparently the one he pled guilty to – but there is no reference to any sexual assault.
[71] Yet another is a screaming match between the two of them. At one point, A.R. says to T.H., “I will scream rape and call 911”. She testified that this occurred after the spitting incident while he held her down over a beanbag chair. That is to say, January 2012, right after they were married. She provided this to the police in August of 2018. She only remembered it after she had listened to the other recordings.
Texts and Emails
[72] Defence counsel entered a number of emails, on consent, from A.R.’s email account. She could not confirm sending or writing them but does remember the sentiments at that time. These are mostly emails from March 2012 that show her affection for T.H. However, she says that was because he required them from her. They were to get him to come back and not be a fugitive.
Evidence of Owen Rosser
[73] Mr. Rosser is 31 years of age. He has been acquainted with A.R. for many years. They volunteered together providing assistance to street people. She was a local volunteer coordinator. They worked together for several months and found that they had similar interests.
[74] In March 2012, they lived together along with his partner in Guelph. A.R. arrived at his door “in a crisis state” and stayed for two or three months.
[75] The defence objected to Mr. Rosser’s evidence, characterizing it as an inadmissible prior consistent statement. However, after argument, I ruled that his evidence could be admitted to rebut the defence of recent fabrication. The defence’s position was clear from the cross-examination of A.R., namely that she made up these allegations in 2016 and had failed to tell the police about them in 2012 because they were not true.
[76] Although Mr. Rosser had reviewed his statements from 2012 and 2017, he needed to delay his testimony to review his statements because he did “not want to slip up”.
[77] While they were residing together in April or May of 2012, Mr. Rosser spoke with A.R. and she disclosed “a wide variety of assaults, both sexual and otherwise”, that had been carried out by T.H. upon A.R. She described being choked by T.H. during sexual activity. She told him that T.H. placed his hands and objects into her mouth. There was a repetition and frequency of events but he did not keep track of the details. He also noticed some bruising on A.R.
[78] In his 2012 statement, he did not say anything about a sexual assault because he had not been told of them at that time.
[79] His 2017 statement was typed although the first one was handwritten. He addressed the second statement To Whom It May Concern. These are the only two statements that he gave to the police.
Analysis
[80] There is no doubt that if the events occurred as described by A.R., the charges have been made out. But the evidence must persuade me beyond a reasonable doubt that the events occurred.
[81] T.H. begins the trial with a presumption of innocence; the Crown carries the burden of displacing this presumption with proof beyond a reasonable doubt that he committed the crime with which he is charged. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or absence of evidence. It is not enough if I believe that T.H. is probably or likely guilty.
[82] At the same time, it is nearly impossible to prove something with absolute certainty. If, after considering all of the evidence, I am sure that T.H. committed the offence, then I will be satisfied of proof of the offence beyond a reasonable doubt. However, if after considering all of the evidence or the lack of evidence, I am not sure that T.H. committed the offence, then I must find him not guilty, because the Crown will not have satisfied the burden of proof beyond a reasonable doubt.
[83] I heard a great deal of evidence of T.H.’s assaults on A.R. The Crown submitted that this evidence was to provide context and to explain why A.R. remained in the relationship and failed to disclose at an earlier time. Accordingly, it was admissible.
[84] The Crown also confirmed that this evidence was not to be used to suggest that T.H. was the sort of person that would sexually assault A.R. Given the time spent on this evidence, I was in need of such a confirmation. Accordingly, the lengthy details regarding the day of separation are essentially irrelevant to my analysis.
[85] T.H. pled guilty to an assault. T.H. sent an awful email to A.R.’s friends and family and co-workers after the separation. He should be disgusted with himself. But he is not charged with those offences here. He is charged with sexual assault.
[86] The events in question occurred in 2011 and 2012. A.R. went to the police in 2016. Her latest allegation came forward in 2018. The defence says that those delays should give rise to a reasonable doubt. The Crown submits that I cannot, in this case, consider that delay in any way against A.R.’s credibility.
[87] In R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, the Supreme Court of Canada confirmed that:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. 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 at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of the 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.
[88] From 35 years in family and criminal law, I have ample experience to agree with that proposition.
[89] A.R. has explained her reasons for not going to the police about these allegations until 2016. She explained that:
(a) She was afraid of T.H.
(b) She thought he would blackmail her.
(c) She did not understand that sexual assault was different than domestic violence. It was only years later that she learned the difference from her counselling.
(d) T.H. had convinced her that her allegations would not be believed.
(e) She was not asked about sexual assaults in the interviews.
[90] She had other reasons disclosed in the evidence. She may have had other undisclosed reasons. However, the reasons set out above are not borne out by the evidence and some are simply untrue.
[91] The audio recordings show that A.R. could be aggressive to T.H., as well as to police officers attending at the home. Prior to the parties’ final separation, A.R. was concerned that T.H. may have left and was a harm to himself. Although she was worried about herself and her pets, she also thought that he was suicidal. Despite that, when she found him, she was still able to be aggressive with him and call him an “asshole”. A.R. may very well have been afraid of T.H. at some points, but the audio recordings demonstrate that she could be aggressive and confrontational with him. Because of this evidence, I am not convinced that A.R. was at all times too afraid of T.H. to go to the police.
[92] Although she was concerned that T.H. would “blackmail” her in the future, that is exactly what he did on April 27, 2012. That threat had been carried out four years prior to her attending to advise the police with respect to these allegations. Accordingly, that reason was spent in 2012.
[93] A.R. was employed with Women in Crisis throughout her relationship with T.H. In the tape of her interaction with police in 2011, she confirms that she works there. Given this fact, it is difficult to understand how she would not know the difference between a sexual assault and simple assault. Regardless of whether A.R. would know the difference by virtue of her employment, her credibility on the subject is undermined by the fact that she distinguished the two activities to her friend within two months of her separation from T.H. That contradiction is damaging to her assertion that she did not go to the police about the sexual assault because she was unable to distinguish it from simple assault.
[94] While A.R. may have initially feared that the police would not believe her if she reported the sexual assaults, that fear ought to have dissipated as a result of interactions that she had with the police. In particular, as a result of a public altercation between T.H. and A.R., the police investigated and, based on her statements, charged T.H. with assault. A.R.’s statements to the police were not only believed but her evidence lead to a successful prosecution of T.H. After T.H.’s arrest and prosecution, there would no longer be a reason to believe that the police would not believe her statements if she reported the sexual assaults.
[95] In the March 30, 2012, statement, A.R. was asked:
Q: . . . does [T.H.] feature any other behaviours I should know about that in your mind make him special – that he’s extremely high risk – anything I haven’t already covered?
A. Not that I can think of.
Q. Is there anything else I need to know?
A. Not that I can think of.
[96] Clearly, the topic of any kind of inappropriate conduct could have been explored. Contrary to her evidence, she was asked about such conduct.
[97] There are many reasons why complainants of domestic and sexual abuse delay in reporting or report incrementally what has occurred to them. However, here, A.R. has, as part of her evidence, provided reasons that are not credible in her circumstances. It is not her delay in reporting that affects her evidence, it is the inconsistency within her evidence on why she delayed that causes me concern and gives rise to reasonable doubt about T.H.’s guilt.
[98] A.R. agreed that she told a police officer that she was involved with kickboxing. At trial, she agreed that she had lied about that. Given her other evidence, I cannot be certain that she is not lying about her lying. She may have put forward that excuse to avoid any other explanations for her bruising.
[99] The Crown entered photographs as corroboration of the injuries suffered by A.R., but none confirms a sexual assault. Corroboration is not necessary for a conviction to follow. But these photos should not be confused with “context”. Some of these injuries occurred after the last alleged sexual assault. Again, T.H. is not charged with assault in this proceeding. In fact, he has already been convicted for assault on A.R.
[100] Other photographs of bruising are equally consistent with A.R.’s evidence that she was an avid trail bike rider which lead to at least one fall. She was also involved, for a time, with roller derby. In short, the photos do not assist my analysis.
[101] Through the recordings and the texts and the emails, the Crown sets out a variety of complaints of physical abuse upon A.R. by T.H. However, the recordings are essentially silent with respect to any allegations of sexual assault. The only two mentions of sexual assault come from undated recordings, apparently recorded sometime in 2011. In one, A.R. says “I will scream rape and call 911.” In another, A.R. says:
You’re not present in this relationship – there’s no romance – there’s no fucking sex – of course you think you can just ask me to fuck you after we’d been fighting for a month and we haven’t touched since – you didn’t even touch me in New Mexico.
[102] The Crown submits that the first statement supports that A.R. was going to complain of these sexual assaults. The second, says the Crown, makes a distinction between romantic consensual sex, which apparently had not occurred, and a violent sexual assault as alleged.
[103] The defence submits that “scream rape” is a threat to lie about T.H. and the second confirms that there was no sexual activity between A.R. and T.H.
[104] Of the two, I find the defence explanation more likely. In another recording, A.R. says, “You don’t want anything to do with my fucking vagina”. As well, accepting the Crown’s explanation would seriously undermine A.R.’s assertion that she did not know the difference between simple assault and sexual assault.
[105] A.R. testified that she observed T.H. drink brake fluid as a form of threatening her. It seems quite unlikely that anyone would drink brake fluid; it seems more likely that this is but one extreme example of A.R.’s exaggeration of what occurred in their relationship.
[106] And, finally, I must consider Mr. Rosser’s evidence. It may show that A.R. complained of a sexual assault long before bringing this matter to the police. If so, that could bolster A.R.’s evidence. However, I do not accept Mr. Rosser’s evidence.
[107] His evidence was brief and to the point. He had two statements to review ahead of time. And yet, he needed a break to review them to be sure that he did not “trip up”. He would not need that break if all he were doing were telling the truth.
[108] Mr. Rosser’s evidence also does not assist the prosecution. A.R. was confiding to Mr. Rosser details of a sexual assault long before, on her evidence, she knew the difference between assault and sexual assault. Mr. Rosser’s evidence only adds another inconsistency to the complainant’s evidence.
[109] Combined, these examples leave me with a real doubt about the reliability and credibility of the complainant’s evidence.
Result
[110] Taking all of the evidence into consideration, the complainant’s evidence does not satisfy me beyond a reasonable doubt that the allegations of sexual assault have been made out.
[111] Accordingly, T.H is found not guilty.
Lemon J.
Released: February 4, 2019
COURT FILE NO.: 17-0533
DATE: 2019 02 04
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
T.H.
JUDGMENT
Lemon J.
Released: February 4, 2019