COURT FILE NO.: CR-18/5 404 DATE: 20200220 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – R.S. Defendant
Counsel: Courtney Barnes, for the Crown Rudi Covre, for the Defendant
Before: Spies J. (Orally)
Heard: January 6, 8-10, 13, and 14, 2020
REASONS FOR JUDGMENT
Overview
[1] The Defendant, R.S., is charged with three counts of sexual assault, one count of forcible confinement in connection with the first alleged sexual assault, and one count of criminal harassment, all in respect of allegations made by P.B. with respect to events she alleges took place between April 30, 2017 and July 28, 2017. She reported the allegations to police, save for the complaint of criminal harassment, on July 27, 2017.
[2] R.S. re-elected trial by judge alone and pleaded not guilty to all charges.
[3] The Defendant brought an Application at the opening of the trial seeking an order permitting him to adduce evidence of other sexual activity between him and the Complainant and in particular evidence to establish that they were in a consensual sexual relationship for several months, commencing in late February 2017, in order to "demonstrate context and narrative". The defence theory was that the complainant had fabricated these allegations in order to avoid problems between her and M.S., the father of her son. In addition, R.S. sought to elicit this evidence to challenge the complainant's credibility in that she had denied having a sexual relationship with him.
[4] In addition, R.S. sought to use text messages between him and the Complainant and certain photographs of the complainant that he alleges support his position that he and the Complainant were in a consensual sexual relationship at trial. There was no dispute that any text messages that are not sexual in nature and were not going to be used to support the defence theory of a consensual sexual relationship, are not "records" requiring R.S. to bring an application under s. 278.93 of the Criminal Code before using the texts at trial; see R. v. W.M. [1] and R v. Mai [2]. The same was true of the photos of the Complainant.
[5] For oral reasons given on January 8, 2020, I dismissed the application as I was not satisfied that the proposed evidence was capable of admission pursuant to s. 276 of the Criminal Code. I also held that all of the texts and all but one of the photographs could be put to the Complainant during cross-examination as they are not sexual in nature and as such not records requiring a s. 278.93 Criminal Code application.
[6] The Crown called the Complainant and R.S. testified in his own defence denying all of the allegations.
The Evidence and Preliminary Findings of Fact
(a) Background
[7] R.S. is now 22 years old and the Complainant is now 28 years old, making her about six years older than him. R.S. and his whole family (save for his father who died in Syria), came to Canada in late 2015, just before Christmas. His mother is the sister to P.B.’s son’s grandmother. When they first came to the country R.S.’s family lived with his mother’s sister.
[8] At the time of the alleged offences, both R.S. and the Complainant were single. She had a son who was five years old. The father of her son is a cousin to R.S. P.B. testified that she and M.S. separated when she moved out of their apartment which she said was perhaps about a month or so after R.S. came to Canada. That would put their separation to have occurred in late February 2017. P.B. then moved in with her sister for a couple of weeks and then during the first week of March 2017, into her own two-bedroom apartment, with her son, which is where she says the alleged offences occurred.
[9] Soon after his arrival, R.S. obtained a job working as a tire technician with X Co., a company owned by M.S. and his family. P.B. was working at that time in the office as the secretary. She worked there until June/July of 2017. According to R.S., both his and P.B.’s employment was terminated on the same day.
(b) Relationship between P.B. and R.S. before the first alleged sexual assault
[10] I heard evidence from P.B. and R.S. as to their relationship, ensuring that counsel avoided any questions that went to whether or not it was a sexual relationship. Ms. Barnes stated in her closing submissions that she stayed away from questions of this nature, but I do not understand why as I never ruled that questions about any relationship between P.B. and R.S., in general, were not permissible. Evidence about whether or not there was a relationship is relevant to context and in particular why and how it was that the Complainant and R.S. were in each other’s company when the alleged offences occurred. The evidence in this regard is also important to my assessment of the credibility of both P.B. and R.S. In summary, P.B. testified that R.S. was showing up unexpectantly and stalking her, whereas his position is that they had a relationship and willingly spent time together.
[11] At work, R.S. and P.B. would obviously see each other. R.S. testified that he and P.B. would sometimes go out together to grab food and they would sit outside to eat. She was not asked about this specifically, but she did say that she and R.S. would only socialize at work on a break or during “dead time”.
[12] P.B. testified in chief that R.S. never gave her a ride to or from work and that she either took a TTC bus or a taxi even though she knew he drove. In the context of all the evidence however, as I will come to, it is clear that P.B. often asked for or accepted multiple rides with R.S.
[13] In her evidence in chief, P.B. testified that outside of work, she never socialized with R.S. alone but that she saw him at family gatherings at the family home of her son’s grandmother or at his cousin’s place. Before the alleged incidents of sexual assault, P.B. said that she had no problems with R.S., and she felt that she knew him fairly well. To her, R.S. was just part of the family and she cared for everyone in the family. She did admit that she had been out with R.S., M.S., and his other cousin who was about the same age. In her evidence in chief she was not asked for any details of this. P.B. also admitted that she had phone calls and text communications with R.S. but said that he was always the one who initiated the communication. I will come to the evidence that was tendered as to text messages between them.
[14] P.B. denied ever going on a date with R.S. or searching him out or ever asking him what his plans were or showing any interest in him. In cross-examination, she admitted that on one occasion, when she was in the car with R.S., he overheard her discussing with her friend that she was going to go out, and he asked if could join them. She had no problem with him going with her. She said this occurred before the allegations. R.S. volunteered to pick her up to bring her down there and he did so, and they went down together. P.B. admitted that he possibly dropped her off at her hairdresser’s and may well have picked her up from there. They then went to a pizza place where her friend worked, and she introduced him as a family member. Afterwards they went to a pub/bar for drinks. She danced by herself, not with R.S. She admitted that R.S. then drove her to her sister’s, which is where she was staying at the time, even though they did not all leave at the same time. P.B. testified that this was the first time she went out in five years; I presume because of her son.
[15] R.S. testified about this event and most of his evidence is consistent with P.B.’s, save for whose idea it was that he come along. R.S. said that on a Friday in February 2017, after work, P.B. asked him to take her to a hair salon and he dropped her off there and went home. She then sent him a message asking him to come and pick her up and that he could then join her to visit her friend who worked at a pizza place. He did so and they had some drinks together at the pizza place and after about an hour he walked to a nearby bar with P.B. and her friend. They were there for a few hours and had more drinks and were dancing all together. R.S. also testified that he danced alone with P.B. R.S. stated that he dropped her off at her sister’s after they left the bar.
[16] I am not able to determine whose idea it was that R.S. join P.B. and her friend, but this is not that important. Mr. Covre put it to P.B. that when she was questioned by the Crown, she testified that she did not socialize with R.S. save for in the company of M.S. and their other cousin. P.B. agreed that she had given this evidence and said that at the time she was asked this question she did not remember going out with R.S. She admitted that she was allowed to review her statement to police before testifying but she said that she did not want to look at it, nor did she want to watch the video of her giving her statement. Furthermore, she did not read the transcripts from her evidence at the preliminary inquiry.
[17] Mr. Covre then confirmed with P.B. that as of this point in her evidence she did not remember any other time where she was out with just R.S. or at a non-family gathering. Mr. Covre then put it to her that the day after going out with R.S. to the pizza place, she went out with R.S. again. She responded she did not remember that. Mr. Covre then put it to P.B. that the following day she went out with R.S. to a shisha bar because he wanted her to help him with a Tinder date. She then admitted that she remembered that, although she did not remember that this event was the following day. She testified that R.S. asked her if she could go with him and that he wanted help talking to this woman because he did not know how to speak English properly. Mr. Covre then put it to P.B. that this was another occasion when she was with R.S. and she readily admitted that Mr. Covre was correct and that she just did not remember this before. Mr. Covre then confirmed that she had no problem or any issue going to this date with R.S. and that she did go on this Tinder date with R.S. and he drove her home to her sister’s place.
[18] When discussing this Tinder date, Mr. Covre told P.B. that he was going to take her to her transcript from the preliminary inquiry on July 10, 2018. P.B. testified that she remembered that she had court but said that she blocked everything out from the court as she does every time when she is “done with this situation”. Mr. Covre then took P.B. through a passage of her earlier evidence and she admitted giving the evidence in the transcript but was not asked if she adopted it. It was not inconsistent with her evidence at trial save possibly for her reference to R.S. being a friend at that time.
[19] R.S. testified that the day after he and P.B. and her friend went to the bar after being together at the pizza place, was a Saturday and they were at work. Again, apart from when this event took place and whose idea it was, R.S.’s evidence is consistent with P.B.’s. His evidence is that he told P.B. that there was a girl that he wanted to go out with that he had met on a Tinder dating site. According to R.S., P.B. overheard him talking to this young woman and when he was driving P.B. to her sister’s home after work, she told him that she wanted to come along, and he agreed. He picked up P.B. and they went to this date together. They smoked shisha for a few hours and then went their separate ways. R.S. testified that he dropped P.B. off at her sister’s house. He was not asked if he asked P.B. for help because of his poor English.
[20] In cross-examination P.B. confirmed again that she did not remember any other time she went out with R.S. to a non-family event. She was then shown two photographs where she and R.S. are standing side by side, close together, in an elevator. In the first photo, R.S. has his arm around P.B. and in the second she appears to be kissing his cheek and she has her arm around him as well. They are both dressed casually in jeans. When P.B. was shown these photos, she admitted that they are selfies that she took but that she took them on R.S.’s phone. She was guessing that it was not her phone because it does not look like her phone. I note from the photos, it is clear that the cell phone was in R.S.’s hand so he must have taken the selfies. This may be an example of Ms. P.B. not looking at the photos and being careful in answering the question that she admitted she did. I note that R.S. is holding a large cell phone with a black back and large open area presumably for the camera. For reasons I will come to, I find that P.B.’s evidence that this was R.S.’s cell phone is likely correct.
[21] For some reason R.S. did not testify about these pictures and so I do not have his evidence to assist me on when they were taken or where they were going and whose phone it was.
[22] P.B. did not remember the exact date these photos were taken. When Mr. Covre put it to her that these photos were taken in the spring of 2017, she was prepared to accept this but clearly did not know. That said, she and R.S. did not have any jackets on nor were they carrying any and given how P.B. was dressed, given that her waist area and large sections of her legs were exposed, it had to be a fairly warm day. P.B. testified that she also did not know where they were going but seemed sure that it was not to a family event. Ms. Barnes submitted that the way P.B. and R.S. appear in these photos is equally consistent with someone who was trying to keep things normal. This is clearly not the case in my view. They are acting like a couple or at the very least close friends. I cannot conclude however that these photos were taken after the first alleged sexual assault.
[23] When Mr. Covre suggested to P.B. that in the one photo it looks like she is kissing R.S. on the cheek, she asked him if he saw her lips on his cheek and she then testified that she knows that she did not kiss him and that this is something she remembered. This was a time when it seemed she was somewhat evasive in cross-examination. She gave no explanation for how she could be sure of this given her uncertainty about everything else. I do not accept her evidence on this point. In my view she was clearly about to or actually kissing R.S. on the check. This was just one example of evidence that led to my conclusion that P.B. was downplaying her relationship with R.S., a matter relevant to her credibility.
(c) Car Trips with R.S.
[24] There is no dispute that R.S. drove P.B. to Tottenham to visit one her friends, and that he drove her home the same day. She admitted that this was not a family event. She said that after moving out of M.S.’s apartment she wanted to start getting in touch with her friends. According to P.B. this trip to Tottenham occurred before the first alleged sexual assault. She testified that when her plan to take a Go Train and have her friend pick her up at the station fell apart, R.S. offered to drive her and her son there. She admitted that when R.S. drove her to Tottenham and back, that this would have been two hours of driving and they stayed at her friends for about three to three-and-a-half hours. P.B. also testified that her friend suggested that she stay over, but that R.S. insisted that he would drive her home, which he did. However, P.B. also testified that she did not want to sleep over. Again, she was downplaying her relationship with R.S. when she suggested that he “insisted” that he drive her home.
[25] According to R.S., it was P.B. who asked him if he could drive her to Tottenham and stay for a while and drive her home. He agreed and they left around 2:00 p.m. to 3:00 p.m. and stayed at her friend’s place the balance of the day. It was late when they returned. He denied that he insisted on driving her back and repeated that it was P.B. who asked him for the ride there and back. In my view his evidence makes more sense.
[26] R.S. testified that P.B. took three photographs of the two of them sitting in the front seat of his car during the trip to Tottenham and she sent them to him. When P.B. was shown these photos, she admitted that she and R.S. were in his car and that she took the photos. She did not know if she shared the photos with R.S. but said they were on her phone. According to P.B., she had started taking pictures of just herself and by the third picture R.S. came over and ended up in the picture. That evidence is incorrect as R.S. can be seen in each of the three photos. In one photo, it shows that R.S. has leaned over and his face is close to P.B.’s as if he is going to kiss her cheek. These photos do not show anyone in the back seat. I find, given P.B.’s admission that she took these photographs that she must have shared them with R.S., which undermines her evidence that she never shared any photos with him.
[27] P.B. testified that she did not know where they were going when these photos were taken. When it was then put to her by Mr. Covre that it was a round trip to a place up north (I presume a reference to Tottenham) to see one of her friends P.B. said that these photos were not taken on that day because you cannot see her son in the backseat. She also said that she did not know where they were going and that it “might” have been before the first alleged sexual assault. R.S. is dressed in a light jacket and P.B. is not wearing a coat and so it is certainly possible that these photos were taken when the weather had warmed up, but it is impossible to say when, so I cannot conclude if this trip was before or after the first alleged sexual assault.
[28] When Mr. Covre put it to P.B. that this was now the third time she had gone out with R.S. and it was not a family event, (actually it was the fourth given her evidence that the three photos were another time R.S. drove her someplace) she responded that R.S. and his cousin Pierre gave her multiple rides to multiple places. It was not a big deal for her and so she did not remember them all. This was quite different from her evidence in chief on this subject.
(d) P.B.’s move into her apartment
[29] P.B. testified that R.S. offered to help her move her belongings out of the apartment that she shared with M.S. He also helped her move into her own apartment. R.S. testified that it was P.B. who asked him to help and that this move was in the middle of March and so he was referring to the second move. R.S. testified that P.B. also asked him to set up some furniture.
[30] P.B. testified that she gave the extra key to her apartment to R.S. and one of her friends to make the move easier as her belongings were being brought upstairs and she did not want to keep her apartment door open. There was only one fob to get into the apartment building and P.B. testified that she did not give that to R.S. At the end of the day she was tired, and she forgot about the key and did not ask R.S. or her friend for the key. P.B. testified that R.S. then entered her apartment “multiple times” using the key and she realized that he must still have the second key. She then said that this happened twice before she asked for the key back. According to P.B., R.S. did not want to give the key back as he wanted to come into her apartment whenever he felt like it. Although this made her feel uncomfortable, she did not speak to M.S. about it as they had broken up. P.B. testified that R.S. did return the key when she asked and that she then had the locks changed as she was not sure if he made copies. According to P.B. she changed the locks about two months after she moved in which would be the beginning of May 2017.
[31] R.S. admitted that he got a set of keys but denied keeping them without P.B.’s permission. He testified that he returned them after two to three months and that he did not make copies of them.
(e) R.S.’s visits to P.B.’s apartment
[32] When P.B. was asked in cross-examination if R.S. often communicated with her about coming to her apartment, she testified that before he came to her door, he would message her that he wanted to come or that he was coming although he also showed up at her door sometimes without messaging her first. She was not asked during what period of time this occurred in. She said that it felt like he showed up a lot, but she could not say how often. R.S. also testified that he visited P.B. at her apartment a lot.
First alleged Sexual Assault and Forcible Confinement, Counts 1 and 2
[33] P.B. testified that the first alleged sexual assault occurred a few days before her birthday, which was on Friday, May 4, 2017. She admitted that it could have been April 30 or 31. She said that she came home really late; at 3:00 a.m. or 4:00 a.m. Her apartment was on the fourth floor, near the elevator. When she came up in the elevator, and the doors opened, she saw that R.S. was standing in front of the door to her apartment. According to P.B., she asked R.S. what he was doing there, and they immediately got into a fight as he asked her where she was coming from and why she was out at this time of night. She told him it was none of his business and he got mad. P.B. testified that she ran away down the hallway and then back to her apartment door which she opened. P.B. did not remember how long the argument in the hallway lasted, but she admitted that it could have been anywhere between five and 30 minutes. There is no evidence that the occupants of any other apartment on the floor came out to see what was going on.
[34] According to P.B., R.S. managed to push his way into her apartment as well and once they were both inside there was more arguing between them. She then ran to the washroom, as she had to use the washroom really badly and she felt it was the safest place. She closed and locked the bathroom door. According to P.B., R.S. broke the door open. She then ran out underneath his arm as one of his hands was on the door frame and they continued arguing and fighting.
[35] P.B. testified that she ran into her bedroom and that R.S. followed her and was then trying to hold her down on her bed. Initially she was “kind of standing” against the side of her bed but then she ended up on the top part of the bed and R.S. was trying to hold her down and was punching her in the stomach and on her thighs while she was begging him to stop and leave her alone. P.B. continued to fight R.S. and was trying to sit up to do so. R.S. pulled her pants down and he forced vaginal intercourse with her, without her consent. R.S. took his penis out of her vagina and ejaculated on her stomach or chest. She was still asking him to stop and leave and telling him that whatever she did was not his problem. P.B. testified that she had bruises on her legs as a result but that she did not take photos of them.
[36] P.B. testified that after the sex R.S. calmed down and started apologizing. She told him she was fine and that he should just go as she wanted this to end. She thought if she made him feel comfortable then she could be alone. Once he left, she took a long shower and cried. According to P.B., it was an hour from the time she arrived at her apartment building and the time R.S. left because she saw the times on her phone.
[37] R.S. testified that he had been at P.B.’s place a number of times but that he recalled a time when he entered P.B.’s apartment building with the key that he had during the early morning hours; 6:00 a.m. to 7:00 a.m. He was not asked to clarify if he had the fob to enter the apartment building or if he was talking about the key he was given at the time of her move. R.S. testified that because he had visited P.B. a lot of times he could not remember exactly when this occurred, but he thought it was perhaps in April or May.
[38] R.S. testified that when he got to P.B.’s apartment, he found that the door was unlocked and that P.B. was not home. His intention was to see P.B. and he admitted that this was probably because she was not answering his texts or calls, and he wanted to know where she was. He also admitted that he thought she was out with another man although sometimes she did not answer her phone because she was sleeping. He denied going to P.B.’s apartment to have sex. He readily admitted that he felt some anger and possibly felt a little jealous because they were “together”. He waited for P.B. inside her apartment. When she arrived, he asked her where she had been, and they started arguing about the fact that he asked her where she had been. R.S. admitted that he felt that she owed him the answer. It was not clear when this occurred but according to R.S., she told him that she had been out with a girlfriend which he did not fully believe.
[39] R.S. testified that when they were arguing, P.B. went into her bedroom and she was getting some clothes out so she could take a bath or a shower. R.S. admitted that he pushed the bathroom door with his hand because they were arguing, and he wanted to use the bathroom. At this point he testified that P.B. was in her room. He admitted that in doing so, he caused the small dent in the drywall of the Complainant’s bathroom that she alleges was caused by the doorknob, presumably that part that sticks out allowing the door to be locked. He denied that P.B. was in the bathroom at that time or that he broke the door handle, explaining that the door was not completely closed. According to R.S., the argument had “slowed down” before P.B. took her shower and after P.B. finished taking her shower, they continued to argue, and he then left because he was not sure if he had to work that day or not. R.S. testified that he went to P.B.’s house a lot of times, even this early in the morning, just to see her, and he would either leave or stay over. R.S. denied that P.B. had asked him to leave or that the argument ended because he forced her to have sex. R.S. also denied hitting P.B. or holding her down on the bed and having sexual intercourse with her without her consent. He testified that he saw her the next day at work and they talked as they normally did. He still drove her home from work and there were no problems.
[40] A photograph of the exterior doorknob of the Complainant’s bathroom door, which she testified shows that it is broken, was entered into evidence along with a photograph showing the small dent in the drywall of the wall that R.S. admitted he caused. I agree with Mr. Covre that all that can be seen is that the cover over the mechanism of the door handle is loose and it is not clear at all that it is broken. I t could be consistent with P.B.’s evidence but not necessarily so. Furthermore, I would have expected that if the door was forced open while it was closed and locked that there would have been some damage to the door jamb.
(a) Relationship between P.B. and R.S. after this first alleged sexual assault
[41] After the alleged sexual assault, P.B. said that she did not really have a choice but to see R.S. because she felt “family pressure” and his family would insist that she come to family gatherings and bring her son. P.B. testified that R.S. never spent any time in her apartment after she moved in, which as I have said was early March 2017. This however is not clearly not correct as she testified that when he had the key he came to her apartment multiple times or at least twice, and he got inside using the key and as I will come to, that he slept over twice on two other occasions, which are when she alleges the second and third sexual assaults occurred but they occurred at a time when she had let R.S. into her apartment.
[42] In cross-examination P.B. admitted that she was shocked by being raped by a person she considered to be family and it was put to her that R.S. was the last person she would want to see. She said yes but immediately said that he did not give her a choice. She became quite evasive and argumentative in the course of this portion of her evidence. P.B. admitted that if she had a choice, she would not have seen him. She denied the suggestion that work and family events were the only places where she did not have an option but to see R.S. She denied having any personal time or a choice whether or not she wanted to see R.S. because he was stalking her and following her and just showing up where she was and so she did not have a choice.
[43] P.B. testified that she did not go to police at first as she felt very embarrassed and she did not think she had to do so in order to make R.S. stop. However, she said that R.S. became more “stalkerish” during the months leading up to July; showing up places and there were a lot of incidents with R.S. coming to her door in the middle of the night, and he followed her when she went out a couple of times. She never let him in in the middle of the night, but she stopped going out and became depressed and ultimately decided that the only way to stop him was to talk to the police.
(b) P.B.’s birthday and the tattoo parlour
[44] R.S. testified that P.B. had a birthday party with her friends that neither he nor any family members were invited to. He said that it would have been “awkward” if only he attended from the family. When I asked him what he meant, he testified that he and P.B. had an agreement to keep their relationship secret. P.B. was never asked about this.
[45] P.B. was asked about getting a tattoo of a key on her arm, which she testified she wanted to get to represent her move out of M.S.’s house and getting her new apartment. Mr. Covre suggested that she got this tattoo on or just around her birthday. She testified that she believed she got it before her birthday, not on her birthday. She was taken by Mr. Covre to her evidence at the preliminary inquiry where she had said that she got the tattoo around her birthday, maybe on her birthday or the day after and that it was “around my birthday”. P.B. was not asked to confirm that she was asked these questions or that she gave these answers, but after this passage was read out, she stated that as she had said, it was “around my birthday”. I did not see this as an inconsistency, but it is important to determine, if possible, when P.B. got this tattoo as she gave evidence about how she felt about the fact that R.S. took her to the tattoo parlour.
[46] P.B. testified that she had wanted to spend her birthday with her son, but M.S. wanted to spend time with him. As a result, they had a big argument with M.S. at the house where R.S. was living. R.S.’s mother told R.S. to drive her to her home and according to P.B., R.S. said he would come with her. She also testified that he told her to think about getting a tattoo and she told him that he did not need to come. It seems that R.S. drove her to the tattoo parlour. P.B. testified that she told him that he did not have to come into the tattoo parlour but that she could not tell him “no” because he did what he wanted anyway. P.B. admitted that he did come into the tattoo parlour, but she told him to leave and he did not.
[47] R.S. testified that he and P.B. went downtown to this tattoo parlour and that it was perhaps a few days or a week after her birthday. He did not recall how the arrangements were made. He said that while at the tattoo parlour they were both happy and he was present for the whole process.
[48] Based on the evidence I find that P.B. and R.S. went to the tattoo parlour either on her birthday or shortly afterwards, which means that this event occurred after the first alleged sexual assault.
[49] P.B. was shown a photo that R.S. took while she was lying on the table in that tattoo parlour at a point when she looked up facing the camera. P.B. admitted that she was smiling in this picture and she thought this was taken after she got her tattoo. She said that in that moment she was happy because she was getting her tattoo. She could have been with anyone and been happy, even though she was with R.S. whom she alleges had raped her several days earlier. She denied that she was happy because the two of them were out together and having a good day; it was because she was getting her tattoo.
[50] P.B. was shown another photograph taken at the tattoo parlour. This one shows her tattoo. P.B. testified that she took this photo with R.S.’s phone. She was “sure about this” and she denied sending him this photo and insisted it was on his phone. P.B. was then taken to her evidence at the preliminary inquiry when she testified, when she was shown this photo, that she took the picture on her own phone and posted it on Facebook and that she never sent it to R.S. She recalled the questions and answers but said her answer at the preliminary inquiry was not correct. She said that she probably barely looked at the picture just as she had now. She insisted that the picture was taken on R.S.’s phone. She did not explain how she could tell the photo was on his phone. I note however, that the phone in P.B.’s hand looks identical to the one that R.S. was holding when they took selfies in the elevator. I also note that the phone P.B. held in photos of her in a bra, where she appears to be alone, which I will come to, is a different phone; a white phone. P.B. may well be correct then, that she used R.S.’s phone to take this picture which would confirm she did not send it to him. This however is at odds with her evidence that she did not want him there.
Second alleged Sexual Assault, Count 3
[51] P.B. described the second incident as happening at the end of May or early June 2017. R.S. came to her apartment and made it seem as if his mother had kicked him out and he had no where to sleep. She pleaded with him for an hour to go to his friend’s house and eventually she told him that he could sleep on the couch but not to bother her. She slept in her bedroom. According to P.B., when she woke up R.S. was sitting on top of her with his penis out and he was rubbing his penis and about to ejaculate on her. She was angry and asked him what he was doing, and he ejaculated on her stomach, without her consent. P.B. was shocked and testified that R.S. apologized.
[52] R.S. testified that because he went to P.B.’s apartment lots of times, he could not remember this particular time, but he did admit there were times she asked him to buy this or that or bring things to the apartment. He admitted that he stayed overnight at P.B.’s apartment but said that he did so more than three times. R.S. testified that when he stayed over, he “most probably” slept on the couch and that sometimes P.B. did as well.
[53] R.S. denied that there was ever a time when he straddled P.B. and ejaculated on her without her consent. In cross-examination he said that something like this never happened. He also denied that he was ever kicked out by his family or that he went to P.B.’s apartment because he had been kicked out by his family.
Third alleged Sexual Assault, Count 4
[54] P.B. testified that the third sexual assault occurred just after she moved into her apartment. This would have been soon after early March 2017, which would mean that this incident occurred before what is alleged to be the second alleged sexual assault. P.B. was not asked about this discrepancy in the timing of these two events. In any event, she testified that R.S. showed up that day with some furniture. He wanted to watch TV and would not leave. P.B. testified she went to sleep in her bedroom and when she woke up the same thing was happening as had happened the first time. She was lying on her back and when she woke up R.S. was sitting on top of her on his knees, with his legs on either side of her, about to ejaculate. He then ejaculated on her upper body, without her consent. P.B. testified that she became upset and was yelling at him to leave and he said that he was sorry and that he would leave.
[55] In cross-examination P.B. testified that she was sure that both times this type of assault occurred, she was sleeping in her bedroom. Mr. Covre took her to her evidence at the preliminary inquiry where she testified that the second time R.S. slept at her place, she slept on the couch and he slept on a separate couch and she did not sleep in her bedroom because after “that” she did not sleep on her bed. She did not say what “that” was. P.B. admitted that she gave this evidence. She testified at trial that she did not remember this until “right now,” that after “that” she did not sleep in her bedroom and she did not remember “too well,” but the first time she let R.S. sleep in her apartment was the first time she slept in her bedroom. She thought she was in her room both times but insisted that both incidents happened.
[56] To this, Mr. Covre took P.B. back to the preliminary inquiry evidence where over two pages she explained at length how she and R.S. slept on the couches. He put it to her that she was pretty specific about how she slept on the sofa and that the reasons she was not remembering this properly now was because none of this ever happened. She said that this was wrong. When Mr. Covre suggested that R.S. was coming around too much and driving her home a lot and she just did not want him around anymore she said no, and that she did not know how to answer the question and that it made no sense to her.
The Texts
[57] P.B. admitted that she had called and texted R.S., although she did not remember the text messages that Mr. Covre showed her, that were later identified by R.S. and introduced into evidence. It was not seriously suggested that these texts were not sent or received although it was suggested that they might be incomplete. P.B. testified that she would only reply to text messages from R.S., but she believed she did not send him any text messages first through the whole time that she knew him. She also testified that they could have messaged each other on Facebook too, to explain why some messages that might look like she initiated them where not in fact initiated by her. R.S. testified that he and P.B. communicated often by phone, by text and Facebook Messenger and they would talk at work.
[58] Setting aside the specific texts introduced into evidence, I do not accept P.B.’s evidence that she was never the first to text R.S. That is simply not credible particularly given her evidence that he gave her multiple rides. I do not accept that for each of those many rides R.S. was the first to offer to drive her somewhere. In my view this was an example of P.B. downplaying her relationship with R.S.
[59] I will come to the contents of the texts that were introduced into evidence, but first I must consider the reliability of this evidence. The evidence from R.S. was confusing as to how he retrieved the texts and photographs that were introduced into evidence and why there are no texts after March 2017. When it was put to R.S. that he had not produced any texts after March 2017, he testified that “for sure” there would have been texts between him and P.B. after that but he could not retrieve those. R.S. testified that a “specialist” helped him retrieve the texts and photos and he was given a memory stick with what was retrieved and that this was done over two years earlier. He said that the two pages of the texts introduced into evidence were from a bigger report. R.S. said that during the relevant period he had two cell phones because one was broken although he could not recall when he purchased the second phone. In cross-examination R.S. also testified that he “most likely” deleted all the texts and photos shared between him and P.B. every two to three days because they both agreed to do so because of their agreement to keep their relationship secret.
[60] None of this evidence assisted me in determining whether even for the period of January to March 2017 I have all of the text messages between R.S. and P.B. Furthermore, since R.S. and P.B. testified that they also communicated on Facebook Messenger it is clear that I do not have the full exchange.
[61] R.S. testified that no texts were extracted after March 2017 and it was not suggested to him that he had deliberately not produced any texts after March 2017 because they would not have assisted him in his defence. Although I do not understand why no texts were retrieved after March 2017, I have decided not to draw an adverse inference against R.S. as a result. As I will come to, the texts that he has produced are not that relevant. There is no doubt however that photographs taken after March 2017 were produced, as I will come to.
[62] P.B. did not remember the actual texts she was shown. If these texts are reliable, there is a text on January 24, 2017 from P.B. to R.S. asking if he could come and “pick me up”. P.B. did not know what this was about and said that there could have been a message on Facebook first, but this does provide some support for R.S.’s evidence that he would give P.B. rides. On February 1, 2017 P.B. texted: “Yo wheres my beer”. R.S. and P.B. could not remember what this was a reference to, and R.S. was not asked about his response: “sorry Paula but one girl she just tex me so I have to go. Tomorrow we drink beer”.
[63] On March 13, 2017, R.S. texted P.B.: “Love you to”, to which she responded: “Lol hes gonna go sleep late”. P.B. said she did not know if she sent this text or what it means but that she was laughing at him; a reference to the “Lol”. R.S. then texted: “I’ll see maybe I come late”, to which P.B. responded: “Okay bae”. R.S. texted: “Love you Bae have good night” to which P.B. responded: “Goodnight”.
[64] According to Mr. Covre, the term “Bae” stands for “before anybody else”. P.B. testified that Mr. Covre was the one who told her what “Bae” stands for at the last court and that this was not how she used it - she calls everyone that, male or female. She admitted that she may have sent R.S. a message using the term “bae”.
[65] Given that I do not have all the messages, and given the content of what I do have, I do not find any of these texts to be of any relevance to what I must decide, particularly as I have none after the end of March 2017.
Events and Photos following the alleged offences
The Photographs
[66] P.B. testified that she never shared pictures with R.S. She said that there had been times when he had sent her pictures of her son, which were taken when they were at her son’s grandmother’s house, but she had no recollection of ever asking him to send her pictures and she did not send him any pictures. She gave no evidence to explain how it is that R.S. had in his possession some photographs that she took, save to suggest that she might have posted them on Facebook. As I have already found, she must have sent R.S. the three photographs of the two of them sitting in the front seat of his car. She did not say that she posted these on Facebook.
[67] R.S. testified that he never used P.B.’s phone without her permission. He admitted that he used it a little but that he asked for her permission first. He did not know her passcode to the phone. He denied ever sending pictures on P.B.’s phone to himself without her knowing and said that it was always P.B. that sent the photos she took, to him.
[68] Two photographs of P.B. in a white bra and patterned navy and white shorts were introduced into evidence. Based on the clothing the photographs appear to have been taken at the same time. They were taken after she got the tattoo because the tattoo is visible on her arm in one of the photos, but that is all that can be said about the timing of these photos. The other photo is a closeup of just P.B. wearing a bra. According to R.S., P.B. sent these photos to him over Facebook Messenger but in cross-examination he said it could have been in any number of other ways. When P.B. was asked if she sent these to R.S. as part of a message, she asked Mr. Covre if he had evidence of that because she did not send them to him. She did not offer an explanation of how R.S. got these photos. Ms. Barnes submitted that given R.S.’s evidence that he did use her phone with her permission, that he might have sent them to himself. I do not accept that submission however given these photos were taken after the first alleged sexual assault and P.B. testified that she did not want anything to do with R.S. Ms. Barnes also submitted that these photos could have been taken off of Facebook by R.S., although P.B. never said that she posted these photos on Facebook. I find it is also an unlikely that she would have done so given that she is simply in a bra.
[69] For these reasons I find that it is likely that P.B. sent these photos to R.S. This also undermines her evidence that she never sent photos to him and impacts her credibility as a witness. I stress however, that I do not rely on this finding to undermine her evidence that she was sexually assaulted by R.S. because she sent these photos to him after the first alleged assault.
(a) The family gathering at the beach
[70] There are two photographs of P.B. in a bikini, showing just the upper half of her torso. P.B. admitted they were taken when she was out at the beach with R.S. and his family. She denied being alone with R.S. at anytime. She did not remember the time of year of each but admitted that it could have been June and agreed that it would have been well after the alleged assaults. She did not think they were selfies and said that R.S. could have taken the pictures without her knowing.
[71] R.S. testified that this trip to the beach was in June or July 2017. He said that P.B. asked him to take these photos and that he probably did so on his phone.
[72] R.S. testified that he picked P.B. up and drove her to the beach and back home. P.B. admitted that R.S. drove her and others home – the whole car was full. She said there were only two cars and that although she was offered a ride with M.S.’s mother, she refused it because it was unsafe in that there were too many people and there was not going to be a specific seat for her and her son. She was then taken to the preliminary inquiry evidence where she only gave her reason for not going in M.S.’s mother’s car was that it was dirty. At trial she insisted that she had two reasons, this car was dirty and as well there were too many people and she did not want to go in that car. I do not see this as a significant inconsistency. I also do not find that fact that R.S. took these two photographs to be relevant to the issues I must determine.
(b) The Engagement Party June 25, 2017
[73] P.B. remembered going to an engagement party of R.S.’s sister in June 2017. She accepted that it could have been June 25, 2017. She saw R.S. there but did not see him alone and said that the entire night she felt uncomfortable to be there.
[74] With respect to two “selfie” photographs of P.B. and R.S., sitting side by side during this party, P.B. agreed that she might have been the one to take the photos and then admitted it was her. As for why there are two photographs, P.B. said that she had her phone on autoplay and that if she took one picture that it would automatically take two or three. She acknowledged the photos showed two different poses.
[75] According to P.B. she did not want to take a picture with R.S., but she was taking pictures with everyone else and R.S. was upset that she had not taken one with him, so she did. In her evidence at the preliminary inquiry, P.B. testified that she took a picture of R.S. because she wanted everyone to think things were normal. She did not adopt this earlier answer and insisted that if R.S. had not wanted to have his picture taken there would be no picture of him. She took the picture of him because she did not want any problem with him. She felt uncomfortable taking the pictures. She then added, however, that she wanted everything to seem to be fine and okay.
[76] I do not see this to be a significant inconsistency however the photos themselves contradict P.B.’s evidence. In one of the photos P.B. is sticking her tongue out in a playful way. In the other, R.S. is sticking his tongue out. This must have been planned and contradicts P.B.’s evidence that they were simply taken on autoplay. Furthermore, based on her expression in these photos I do not accept her evidence that she was feeling uncomfortable or did not want to take the pictures. Furthermore, the fact these photos were in R.S.’s possession undermines her evidence that she never sent photos to R.S.
(c) The park
[77] There are two photographs that R.S. took in a park. He testified that he took these photos on the same day and that it was on a Saturday after the Friday when M.S. dismissed them both from their employment. According to R.S., P.B. called him and told him that she wanted to take her son to the park. She asked him to come along and give them a ride.
[78] One photo shows P.B. on a swing and the other is of her son sitting at a table outside eating French fries, P.B. admitted that R.S. took the picture of her on the swing, but she did not know if he took the one of her son. It was put to her that this was the day that she and R.S. were at the park with her son. P.B. stated that she and her son went to the park and that R.S. showed up. She said this occurred sometime in July 2017. She denied it was the same day that she and R.S. were let go from work.
[79] I do not find these photographs to be of any assistance in determining who is telling the truth about the circumstances of their being in the park.
Report to Police
[80] After the third alleged sexual assault, P.B. testified that a friend she had spoken to kept telling her that it would be a good thing to go to police. P.B. testified that before she went to police, she had a conversation with M.S. and another person she knew from the tire shop. She believes that M.S. saw some text messages that she had with a friend talking about someone giving her a problem and he asked her about them. She first told him “very minimal stuff”.
[81] P.B. went to police on July 27, 2017 and gave a statement to police. Afterwards police came to her home and took pictures that were entered into evidence. She understood that they were also going to speak to R.S. and tell him to stay away from her.
Alleged Criminal Harassment, Count 5
[82] P.B. alleges that at around 6:00 a.m. to 7:00 a.m. on July 28, 2017, R.S. came to her apartment door. She heard knocking at her apartment door and assumed it was R.S. but she did not go to the door to see. She was the only one in the apartment. She then heard knocking again around 8:00 a.m. or 9:00 a.m. and it was louder. She said R.S. was banging on the door telling her to open the door. This time she spoke to R.S. through the door. According to P.B., R.S. was demanding to know why she went to police. Her only response was to say she was not opening the door, that there was nothing to talk about and that she was going to call police. It was only when she called 911 that he left. P.B. testified that she got scared and did not want to open the door. She felt panicked and did not know what was going to happen.
[83] R.S. admitted going to P.B.’s apartment at around 8:00 a.m. as he wanted to talk to her because he did not know what was going on. He did not send her a message in advance of going and he made no mention of having been contacted by police and was not asked if he knew that P.B. had gone to the police. Rather, R.S. testified that a day or two before, he was receiving strange text messages from P.B. to the effect that she was going to tell the family about the love story between the two of them and that they had been going out together, which was contrary to the agreement that they had not to tell anyone. R.S. said that he spoke to P.B. through the door to her apartment and he asked her what was going on. She did not want to tell him or speak to him and she asked him to leave her alone and leave which he did right away. Once he got home, he called her, maybe two or three times as she did not answer at first, because he could not understand what was going on. R.S. testified that she did not tell him what was going on.
Analysis
[84] I now turn to my analysis. It is common ground that part of the evidence of P.B. and R.S. is diametrically opposed. As is often the case with allegations of sexual assault, this case turns primarily on my assessment of the credibility and reliability of the evidence of P.B. and R.S. Since R.S. testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.) [3] apply. I must acquit R.S. if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt. [4]
[85] In considering the evidence, I am entitled to believe all, some, or none of each witness’ evidence. Further, in assessing the evidence of R.S., I am entitled to consider it in the context of all of the other evidence. [5] However, I must remind myself that this is not a credibility contest. [6] W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of P.B. to that of R.S. [7] As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit. [8]
[86] As Ms. Barnes submitted, I must be careful how I consider the evidence that I heard about the conduct of P.B. after the alleged sexual assaults and in particular the evidence of further contact between her and R.S. Although I can consider the credibility of the evidence P.B. gave on this subject in assessing her credibility overall, this evidence, standing alone, does not give rise to an adverse inference against her evidence that she was sexually assaulted. I must remember, as the Supreme Court of Canada said in R. v. D.D. [9], that just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “ must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons …react to acts of sexual abuse”. There is no inviolable rule on how people, who are the victims of trauma like a sexual assault, will behave. [10]
Credibility and reliability of the evidence of the Complainant
[87] Ms. Barnes admitted that P.B.’s demeanor was clearly confrontational and hostile in cross-examination at times. She spoke over Mr. Covre a lot when he was asking questions and she was clearly angry at times when giving evidence. She submitted, however, that her demeanor changed 180 degrees when she testified about the sexual assaults. Then she became quiet and emotional and struggled to tell her story. Ms. Barnes said that this is relevant to some extent and goes to her overall credibility.
[88] The law is clear that in-court demeanour of a witness is not as important a consideration in assessing credibility as it was once thought to be. It is however still a relevant consideration as appeal courts often comment on the advantage that trial judges have in observing the witness in court. The Ontario Court of Appeal in R. v. J.A. [11], ruled that the trial judge was correct to assess the complainant’s in-court testimony, taking into account her post-event emotional state. I agree generally with Ms. Barnes’ assessment of P.B.’s in-court testimony when she was speaking about the sexual assaults and would add that on many occasions, she readily admitted that she had been reminded of an event that she had not previously remembered. I do find it relevant however when a witness’ demeanour changes in cross-examination so significantly, as P.B.’s did.
[89] Counsel did not raise any concerns about the reliability of P.B.’s evidence even though she professed not to look carefully at the pictures before giving evidence about them and taking no steps to review her earlier evidence before testifying. My biggest concern with the credibility of P.B.’s evidence is that she went to great lengths to distance herself from any relationship with R.S. even before the alleged sexual assaults and any voluntary contact with him thereafter. Ms. Barnes submitted that before the first alleged sexual assault P.B. never said that she avoided R.S. at all costs or that she never went in his car with him. However, my impression after hearing P.B.’s evidence in chief was that R.S. never drove her to or from work even though she knew he was driving. It quickly became apparent in cross-examination that this was simply not the case and ultimately, she testified that he gave her multiple rides.
[90] Similarly, in her evidence in chief P.B. did admit that she went out with R.S. but testified it was with M.S. and his cousin. She never suggested that she went out with R.S. to non-family events, yet she admitted this in cross-examination. I do not blame P.B. for not testifying in chief about all the times she was with R.S. as she was not asked, but when these topics came up in cross-examination, as I have already reviewed, each time Mr. Covre reminded her of a time when she was out with R.S., she admitted that the event had occurred and that she now remembered it but confirmed again that she could think of no other times. Mr. Covre then on a couple of further occasions repeated the same process with P.B. and each time she confirmed there were no other events and was reminded of another that she accepted had occurred. I find her evidence each time that she could not recall anything else to be difficult to believe.
[91] In addition, for every contact with R.S., even those before the alleged assaults, P.B. always testified that it was R.S. who initiated the contact by offering her a ride or wanting to join her or asking her to join him. It is simply not credible that on every single occasion when she was out with R.S. or he was driving her someplace that he was the one who offered and that she never asked for a ride, particularly given her ultimate admission that he gave her multiple rides. I have already reached similar conclusions with the texts and the photographs that I have found P.B. must have sent to R.S.
[92] A significant example of this type of concern I have about the evidence of P.B. is the trip to the tattoo parlour, which I have found occurred on or right after P.B.’s birthday at a time when she said she did not want anything to do with R.S. given that he had forced her to have sexual intercourse with him. I refer to this not because it suggests that the sexual assault did not happen, but I do find that P.B.’s evidence about how it was that R.S. was with her at the tattoo parlour was not completely truthful. I do not accept her evidence that she had no choice but to let him drive her there and presumably back. Clearly that could not be true as she could have found her way there without him. I do accept that once R.S. drove her to the tattoo parlour that she may have had little choice but to let him come inside, but as Mr. Covre submitted, the fact she is smiling in the photograph R.S. took does not suggest that she was upset by his presence. Furthermore, as I have already found, the same is true, given that she used R.S.’s phone to take a selfie. Her evidence that she would have been happy no matter who was with her was also not credible.
[93] There were also some inconsistencies in P.B.’s evidence as compared to her evidence at the preliminary inquiry. Not all of these inconsistencies are important. The mere existence of these inconsistencies is not itself determinative of P.B.’s credibility. As the court stated in R. v. Keepness [12]: “[m]uch depends on the nature of the inconsistencies, their relationship to the crucial elements the prosecution has to prove and the presence or absence of confirmatory evidence of the witnesses' testimony on crucial issues”.
[94] In this regard, the one inconsistency that I do find important is the fact that with respect to the two alleged sexual assaults where P.B. alleges that R.S. was straddling her while she was sleeping, as Mr. Covre submitted, P.B. was clear that on both occasions she was sleeping in her bedroom. At the preliminary inquiry, however, with respect to the second incident, she testified that she was very certain she was on a couch when the assault occurred. This was despite him asking specific questions about how she and R.S. were sleeping on the couches for two pages of transcript.
[95] Mr. Covre also submitted that P.B.’s evidence about R.S. keeping a key to her apartment without her permission also made no sense. Although she said that she was concerned about this, there is no evidence that she did anything about this or complained to anyone including M.S. He submitted that this suggests that in fact she had no concern about the fact that R.S. still had a key to her apartment. I agree that this seems likely but note that on her evidence R.S. likely returned the keys to her before the first alleged sexual assault.
Credibility and reliability of the evidence of R.S.
[96] Mr. Covre submitted that R.S.’s evidence was very clear and forthright and had the ring of truth. He was not evasive in cross-examination. He conceded that there were times where his evidence was confused, particularly with respect to how the text and photos were extracted from his cell phones but R.S. categorically and repeatedly denied any kind of sexual assault.
[97] I have no concerns with the reliability of R.S.’s evidence save that I found his evidence with respect to how he got the texts and photographs to be confusing. Although there were aspects of his evidence that I had difficulty with, as I will come to, I agree that overall, R.S. seemed to be forthright in giving his evidence. He made certain admissions that were not in his interest, for example that he was jealous when he confronted P.B. on the night of the first alleged sexual assault. He also admitted forcefully pushing the bathroom door and causing the small dent in the wall.
Has the Crown proven beyond a reasonable doubt that R.S. sexually assaulted P.B.?
(a) General
[98] Before coming to the specific allegations, I will begin by making some general observations. Ms. Barnes submitted that the defence has no obligation to lead evidence to suggest that P.B. had a motive to fabricate these allegations and that of course is true. She also submitted there is no evidence of any motive on the part of P.B. to fabricate but I note that there is no evidence that establishes that there is no such motive.
[99] In the background of the allegations of sexual assault is the conflict in the evidence as to whether or not on the one hand as P.B. testified, R.S. was harassing and stalking her and was generally someone she did not want to be around, at least after the first alleged sexual assault or whether or not, as R.S. testified to, they had a pleasant relationship and this explains why he would be with P.B. even in the period after the first alleged sexual assault.
[100] I emphasize again, that even if I were able to conclude that R.S.’s evidence is correct and that he and P.B. had a pleasant relationship, after the first alleged sexual assault, that does not mean that I should use this fact to find that she consented to any sexual activity that occurred between them. Rather, the dispute in the evidence on this issue can be used only to assess the credibility of the evidence P.B. and R.S. gave on this subject.
[101] On this issue, in my view, it is clear that in the period before the alleged first sexual assault, P.B. viewed R.S. as a friend, and she spent time with him not only at work and family gatherings but also socially. Whether or not they were dating I am not able to determine, but clearly, they had a friendlier relationship than what she was prepared to concede in her evidence at trial. It seems on the evidence that by mid February when she moved out of the apartment with M.S. that R.S. was someone she could go out with, along with others, to restart her social life as her son was now five years old. I base this finding on the fact that they went out to the pizza place together to meet P.B.’s friend, the shisha bar with the Tinder date, the trip to Tottenham and possibly another trip which may also have been before the first alleged sexual assault. There is no evidence to suggest that R.S. was stalking P.B. during this period. I do not find that P.B. and R.S. were dating during this period of time although my sense is that R.S. certainly thought so or hoped so given his evidence that he was jealous when he did not know where P.B. was.
[102] This finding affects my view of the credibility of P.B. and her attempts to distance herself from R.S. during this period of time and, as I will come to, has some relevance to how the events leading to the first alleged sexual assault began.
(b) First alleged sexual assault
[103] Turning to the first alleged sexual assault, there is no dispute that R.S. attended at P.B.’s apartment early in the morning and that they argued. He admitted causing the dent in the bathroom wall but not breaking the door knob on the bathroom door. Ms. Barnes queried why R.S. would show up at 6:00 a.m. just to fight with P.B. and then leave. The only way to make sense of this is to consider one of two possibilities. Either R.S. was stalking P.B. and he had become obsessed with her or they had a relationship such that R.S. became jealous when she did not return his calls. That is what he testified to and this is consistent with the fact that they both testified that he confronted P.B. and demanded to know where she had been.
[104] Having concluded that R.S. was not stalking P.B. in the period before this alleged first sexual assault, and that he and P.B. had a friendlier relationship than what she was prepared to concede it is likely that as R.S. admitted, he confronted P.B. early in the morning because he was jealous. That of course would not justify his behaviour if he then sexually assaulted her. I therefore do not believe that this finding helps me determine what happened after the initial confrontation.
[105] Ms. Barnes argued that R.S. could not explain how the argument came to an end, other than to say he did not know if he had to go back to work the next day and that this kind of argument was common for them. I do have difficulty in accepting R.S.’s evidence about why he left. Ms. Barnes’ position is that the argument ended after R.S. forced vaginal intercourse on P.B. That is certainly possible if I accept P.B.’s evidence. However, as I have already set out, I have a number of concerns about the credibility of some of her evidence. Having considered the evidence and all of the findings that I have made, I simply am not able to conclude what happened on the evidence before me.
(c) Second and Third alleged sexual assaults
[106] I have come to the same conclusion with respect to the other two sexual assaults that P.B. alleges occurred. R.S. has denied these allegations and both his evidence and P.B.’s evidence could be true. In addition to the credibility concerns I have expressed about P.B.’s evidence, there is the inconsistency in her evidence about where she was sleeping when she alleges this happened a second time. Her confusion about that could be explained, if she got the order of these events incorrect but either way I find am simply not able to determine what actually happened.
Has the Crown proven beyond a reasonable doubt that R.S. criminally harassed P.B.?
[107] I turn then to the final charge and consider whether or not the Crown has proven beyond a reasonable doubt that R.S. criminally harassed P.B. causing her to reasonably fear for her safety, contrary to s. 264(3) (a) of the Criminal Code.
[108] Ms. Barnes conceded that there is no evidence that R.S. knew that P.B. had gone to police the day before he is alleged to have criminally harassed her. That means that her evidence that he was demanding to know why she had gone to police cannot be accepted. Even if I accept the balance of P.B.’s evidence, at its highest she said that she was panicked and did not know what was going to happen. She admitted that R.S. left, and she did not suggest that that he uttered any threats to cause her harm. Given my conclusion that I am not satisfied that the Crown has proven that R.S. sexually assaulted P.B., there is no basis to find that by virtue of R.S.’s conduct, P.B. reasonably feared for her safety.
Disposition
[109] R.S. would you please stand.
[110] For the reasons I have given I find you not guilty of all counts.