COURT FILE NO.: CR-19-5-15
DATE: 20191216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R. M.
S. Arnold, for the Crown
J. DiCecca, for the accused
HEARD: November 12-14, 2019
REASONS FOR JUDGMENT
P.J. Monahan J.
[1] RM is charged with sexual assault with a weapon, unlawful confinement, and mischief under $5000. The charges arise out of an incident that occurred between RM and the complainant, LC, on January 11, 2018.
[2] For the reasons that follow, I find RM not guilty of the three counts with which he is charged.
Evidence
a. Crown Evidence
[3] The Crown’s evidence consisted primarily of the testimony of the complainant LC.
[4] LC is 46 years old and has three adult children. She met RM at a bar in September 2013. LC and RM began dating soon thereafter, although they continued to live in separate residences. RM is currently 43 years old and he also has three adult children.
[5] LC testified that initially their relationship was positive. However eventually RM became more aggressive with her and began accusing her of looking at other men. On certain occasions RM would call her names and pull her hair. She reported her concerns to police in June 2017, but she asked that the police merely warn RM rather than charge him with anything. It is not clear whether any action was taken on this complaint.
[6] It appears that despite LC’s concerns, she continued to have a relationship with RM. On January 11, 2018 LC and RM arranged through text messages to meet at a nearby bar. LC drove to the bar and met RM there at approximately 7:30 PM.
[7] LC and RM had a drink together and agreed that they would go back to RM’s house to have sex. They drove together to his apartment in her car.
[8] After they entered his apartment, LC went into the bathroom to brush her teeth. LC testified that while she was still brushing her teeth, she looked in the mirror and saw RM standing in the doorway of the bathroom holding a knife. The knife appeared to LC to be about 9 inches long.
[9] LC indicated that, upon seeing RM with the knife, she asked him what he was going to do and whether he was going to kill her. RM entered the bathroom, closed the door and said something to the effect that “you are going to do what I want you to do” and “you are going to suck me until I come.”
[10] LC stated that RM pushed her down onto the toilet seat in the bathroom. In the process, LC lost her balance and cut one of her hands on the edge of the shower, which caused bleeding. RM then told LC to take off her clothes. RM also removed his clothing and forced LC to perform fellatio on him. While this was happening, LC testified that RM dragged or pushed her across the bathroom floor a couple of times, causing her to injure her back on the toilet seat.
[11] RM eventually ejaculated onto LC’s cheek and her hair. She used some toilet paper to wipe his semen off her face and hair, and used another piece of toilet paper to wipe the blood from the cut on her hand. She put the toilet paper in the garbage can in the bathroom.
[12] LC testified that while RM was assaulting her, he had put the knife down on a shelf in the bathroom. After he had ejaculated and they had both put their clothing back on, RM picked up the knife and knelt down in front of LC. RM put the knife on her lap and said that LC could kill him. She replied that she did not want to kill him, she just wanted to get out of the bathroom and his apartment. LC let the knife fall to the floor without touching it.
[13] LC indicated that she and RM remained talking in the bathroom for some period of time. LC was asking RM to let her go but he would not let her out of the bathroom. Eventually RM opened the bathroom door and they went into his bedroom and sat on the bed. LC testified that RM promised not to do this again. He also asked her not to say anything about what had happened to RM’s adult son, who was expected to arrive at the apartment shortly.
[14] At some point, RM’s son arrived and began knocking on the door to the apartment, which was locked. LC testified that RM’s son continued to knock on the door for about 10 minutes until RM finally let him in. As RM was talking with his son, LC managed to push past him and exited the apartment. She got to her car, which was parked just three or four houses away, intending to drive immediately to the police station to report the assault. She locked the doors to her car as she feared that RM would follow her and try to get into the car with her. As she drove by his apartment, she saw RM coming out on the street. LC rolled down one of the passenger windows slightly and told RM that she did not want him in her life anymore. RM became angry and kicked the front passenger door as she drove by.
[15] LC reported the sexual assault, and the other actions taken by RM, to the police that evening. She was taken to a local hospital and examined. The examination disclosed some cuts on one of her hands, a bruise on one of her shoulders, and some red marks or abrasions on her back. LC indicated that these injuries were caused by RM in the course of the assault. Photographs of these injuries were entered as exhibits, along with photos of the interior of RM’s apartment.
[16] In the course of her cross-examination, LC was asked whether she has had any communications with RM since the assault, whether by telephone, text or social media. LC stated that she had not been in communication with RM since the assault, other than a message she had sent to a Facebook account that RM had established under another name. She was specifically asked whether she had sent a series of text messages directly to RM between May 2018 and April 2019. She denied having sent these texts. However, when shown copies of the texts by defence counsel, she admitted that she had in fact sent the texts but that she had done so in response to texts from RM.[^1]
b. Defence evidence
[17] The only witness called by the defence was Officer Michael Chmela, a police officer who had executed a search warrant at RM’s apartment on January 12, 2018. Chmela testified that he found toilet paper with blood stains in the garbage can in the bathroom. However he did not find any toilet paper with semen. He also found a knife in a cutlery tray in one of the kitchen cupboards. The knife was clean and did not have any bloodstains on it.
Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[18] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, along with the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.
[19] Thus, RM is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
[20] RM is not required to testify and cannot be penalized for having elected not to do so. There is no onus on an accused to prove his innocence by going into the witness box or by tendering evidence. It is up to the Crown to prove an accused’s guilt beyond a reasonable doubt, not the other way around.
[21] I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that RM is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to RM and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
[22] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that RM committed the offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.
b. Assessment of credibility
[23] The Crown’s case consists primarily of the evidence of the complainant LC. Thus to reach a verdict in this case I must assess her credibility.
[24] The Supreme Court of Canada has repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. In particular, no inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. Nor is it appropriate to assume that a victim of sexual assault will subsequently avoid their abuser.
[25] I also note that there is no singularly correct or scientific method for assessing credibility. However, as Watt J.A. noted in R. v. A.M., one of the most valuable means of assessing witness credibility is to examine inconsistencies in a witness’ evidence.[^2] Inconsistencies may emerge not just from a witness’ testimony at trial, but also 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.
c. Admissibility of Text Messages Between LC and RM
[26] As noted above, counsel for RM sought to cross-examine LC on certain text messages that she had sent to RM subsequent to the alleged assault. These text messages had not been disclosed to the Crown prior to trial and had not been the subject of an application pursuant to s. 278.93.
[27] Once it became apparent that defence was intending to cross-examine LC on texts she had sent to RM, the court conducted a voir dire to determine whether the texts were admissible, in accordance with the provisions in s. 278.92 to s. 278.94.
[28] The text messages were written in Portuguese but two Portuguese interpreters were assisting at the trial and were able to provide English translations of the texts. The English translations of the texts, and the dates on which they were sent, were as follows:
i. May 10, 2018 at 8:11 AM: “Good afternoon, the day is nice”;
ii. May 12, 2018 at 4:01 PM: “Good day to you as well”;
iii. May 28, 2018 at 3:04 PM: “You are already at home good afternoon”;
iv. August 22, 2018 at 5:59 PM: “Go to work you will see what will happen”;
v. September 27, 2018 at 8:42 PM: “The old man went to pick you up, now you are already at home, he will lose the money and lots”;
vi. April 4, 2019 at 7:58 AM: “O”;
vii. April 5, 2019 at 12:37 AM: “I”;
viii. May 11, 2019 at 5:40 PM: a “thumbs up” emoji.
[29] Counsel for RM argued that these messages fell outside of the definition of “records” under s. 278.2 since they did not contain “personal information for which there is a reasonable expectation of privacy”. Counsel argued that the content of the messages was entirely innocuous and that they did not contain any information about LC, much less personal information which could give rise to privacy concerns. Further, the messages were sent to RM after the charges in this case had been laid and the parties were in an adversarial relationship. As Davies J. pointed out recently in R. v. WM, 2019 ONSC 6535, it is not reasonable for the sender of messages in this context to expect that the messages will necessarily remain confidential.[^3] On this basis, counsel for RM argued that the messages were admissible without the necessity of an application under s. 278.93.
[30] The Crown agreed that these messages did not contain personal information over which there was a reasonable expectation of privacy and that no application pursuant to s. 278.93 was required in the circumstances.
[31] At the conclusion of the voir dire, I accepted the submissions of both parties that these particular text messages do not contain personal information over which the complainant has a reasonable expectation of privacy. The text messages do not disclose any information about the complainant. In fact, certain of the messages do not appear to communicate anything intelligible but merely consist of individual letters of the alphabet. Counsel for RM seeks to introduce the messages not because of their content but merely to establish that they were sent by LC. I therefore ruled that the texts do not constitute “records” for purposes of s. 278.1 and that no application under s. 278.93 was required to determine their admissibility.
Positions of the Parties
[32] In his closing submissions, Crown counsel outlined two different lines of reasoning open to the court, the first leading to a finding of “guilty”, the second leading to a finding of “not guilty”.
[33] The first line of reasoning outlined by the Crown focused on the fact that the only version of the events of January 11, 2018 was that provided by LC. Her account of the assault by RM was largely uncontradicted, other than by the fact that there was no toilet paper with semen found in the garbage can in RM’s bathroom. LC described events in a forthright manner and appeared genuine. Although various alternative explanations or scenarios were put to LC in cross-examination by counsel for RM, these were all rejected by her and there was no evidence to support any of the alternatives suggested by counsel for RM.
[34] Before finding RM guilty, it would be necessary to take account of the fact that LC appeared to have not been forthright in relation to her text communications with RM following the alleged assault. LC initially denied having sent any texts to RM, but when shown copies of the texts acknowledged that she had in fact sent them. Crown counsel argued that the court could find that, although LC had not been forthright on this issue, this did not undermine the credibility of her evidence in relation to the assaults. On this basis, it would be open to the court to find RM guilty.
[35] Crown counsel also outlined a second line of reasoning, this one leading to a finding of not guilty. The second line of reasoning acknowledges that LC had testified in a forthright manner regarding the sexual assault and the other actions taken by RM on January 11, 2018. The issue, however, was the significance to be attached to LC’s inconsistent evidence regarding her post offence communications with RM. LC had been specifically asked about whether she had sent text messages to RM after the assault, and she had denied doing so. Moreover, LC maintained that she had not sent any of the texts even after they were specifically read to her. It was only when shown actual copies of the texts that LC acknowledged having sent them to RM.
[36] It should be emphasized that the issue here is not whether LC should or should not have had contact with RM after the alleged sexual assault. As noted above, there is no necessary or expected manner in which a victim of a sexual assault is expected to react following the assault. Nor is a victim of a sexual assault expected to avoid the perpetrator. The concern here is quite different: LC specifically denied having sent text messages to RM, and then acknowledged that she had done so when shown the messages. It is not her behaviour as such but, rather, the inconsistency in her evidence which gives rise to a credibility concern.
[37] Crown counsel suggested that it would be open to the court to conclude that LC’s lack of forthrightness in this portion of her evidence was sufficiently serious as to raise a reasonable doubt as to whether RM had in fact committed the sexual assault as described by LC. Crown counsel pointed out that, although there were photographs taken at the hospital of injuries sustained by LC, as well as damage to her car, there was no direct evidence as to how or when those injuries or that damage had been caused. In this sense, these photographs did not directly corroborate her account of the events in question. Moreover, the absence of toilet paper with semen was inconsistent with her evidence that she had used toilet paper to wipe RM’s semen from her face and hair and put it in the garbage can. On this basis, Crown counsel suggested that it would be open to the court to conclude that a reasonable doubt existed as to whether RM had committed the offenses with which he is charged.
[38] Counsel for the Crown went on to recommend that the court find RM not guilty. In advancing this recommendation, Crown counsel noted that proof beyond a reasonable doubt is a high standard, requiring the court to be sure that RM had committed the offences in question. LC testified in a straightforward and credible manner. Her account of the sexual assault was not shaken in cross-examination. As such, it is likely that RM sexually assaulted LC. But proof of probable guilt is not proof beyond a reasonable doubt.
[39] In this case, Crown counsel suggested that the fact that LC was not forthright in her evidence regarding her contact with RM does raise a reasonable doubt with respect to RM’s guilt. There was no explanation offered to account for this inconsistency in her evidence. Moreover, the absence of corroborating evidence independent of LC does not eliminate that reasonable doubt. Accordingly, Crown counsel recommended a finding of not guilty.
[40] Counsel for RM, in brief submissions, essentially adopted the analysis put forward by the Crown. Counsel for RM argued that LC’s untruthfulness with respect to her communications with RM irreparably damaged her credibility. In the circumstances, it would not be safe to convict RM solely on the evidence of LC.
Analysis and Conclusions
[41] I accept the analysis and recommendations put forward by both Crown and defence counsel.
[42] LC testified in a forthright and candid manner. Her account of the sexual assault, as well as the other actions of RM on the evening of January 11, 2018, was plausible and made sense, and was not shaken in cross-examination. In my view, it is likely that RM assaulted LC, as well as confined her in his apartment and damaged her motor vehicle.
[43] However, proof beyond a reasonable doubt requires that I be sure that RM is guilty. I find that LCs unexplained lack of forthrightness with respect to her post offence communications with RM does raise a reasonable doubt as to his guilt. That reasonable doubt is not overcome by the remainder of her evidence, or by any other evidence tendered by the Crown. Considering the totality of the evidence as a whole, I cannot be sure that RM sexually assaulted LC, confined her in his apartment, or damaged her vehicle.
[44] Accordingly, I find RM not guilty of the three counts with which he is charged.
P. J. Monahan J.
Released: December 16, 2019
COURT FILE NO.: CR-19-5-15
DATE: 20191216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R. M.
REASONS FOR JUDGMENT
P. J. Monahan J.
Released: December 16, 2019
[^1]: The defence had not brought an application pursuant to s. 278.93 in respect of these text messages. As a result, a mid-trial voir dire was held to determine their admissibility. As discussed below, I ruled that the messages did not fall within the definition of a "record" in s. 278.1 and, therefore, they were admissible despite the absence of an application under s. 278.93.
[^2]: 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), at paras. 12-14.
[^3]: R. v. WM, 2019 ONSC 6535 at para 50.