Court File and Parties
COURT FILE NO.: CR-1013/18 DATE: 2020-03-13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – D.C. Accused
COUNSEL: S. Baker, for the Crown N. Xynnis, for the accused
HEARD at Sudbury: January 13-16, 2020
REASONS FOR JUDGMENT
A.D. Kurke, J.
Overview
[1] The accused is charged on a five-Count indictment with three allegations of sexual assault, a charge of assault causing bodily harm, and another charge of simple assault. The complainant on all Counts is K.J., who met the accused when she was a 14-year-old aspiring sprinter, and he a track coach five years her senior. He remained her coach through much of their relationship and became her husband after she turned 18. The allegations of sexual assault involve incidents of vaginal touching during a trip to a track meet, and vaginal intercourse before the two married in 1985, or just after their marriage. The assault allegations stem from the marriage. The complainant alleges that she fled the accused and the marriage in January 1993.
[2] Crown witnesses at trial included K.J., her mother M.P., and a high school track coach at the complainant’s Sudbury school. The accused chose to testify, and was the only witness presented by the defence.
The law: burden of proof and assessment of evidence
Burden of proof
[3] The accused began this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27. That burden applies to the elements of every charge before the court.
The test in W.(D.)
[4] In the circumstances of this case, the accused has testified. Sometimes his evidence denies or contradicts the complainant as to whether the conduct alleged by the complainant occurred. Sometimes the accused’s evidence highlights different aspects of events or posits a different factual framework.
[5] In these circumstances, in assessing the evidence I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, at 757-758:
… In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]
… A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[6] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), [1994] 3 S.C.R. 521, at 533. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
[7] In my discussion of the charges I have divided my consideration into the evidence relating to the time before marriage and the allegations of sexual assault, and then the assault charges in the context of the married life of the complainant and the accused. Although my analysis on assessments of credibility and reliability will focus on issues relating to the charges under immediate consideration, I have always kept in mind my duty to situate W.(D.) assessments “in the context of the evidence as a whole.”
Credibility and reliability
[8] In this case, the issue that directly confronts the court is the credibility and reliability of the evidence of the complainant and of the accused. Although these issues are always central in the analysis of witness evidence, a lapse in time between the earliest of the incidents in question and trial of greater than 35 years merits careful scrutiny. Memories fade with time, and issues of reliability loom large.
[9] In assessing the credibility of adult witnesses who testify about things from their youth, a court looks to the consistency or inconsistency of a witness’ evidence, taking into account the witness’ age at the time that the events testified to are alleged to have occurred; aspects of evidence that demonstrate a carelessness with the truth; or whether any inconsistencies are major or trivial: R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), at paras. 9-14.
[10] The reliability of a witness’s evidence is a separate, but related issue. As noted by Watt, J.A., in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at para. 41, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, Watt, J.A. states “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”
[11] In making these assessments, it is important to realize that everyone is configured differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events. Courts must decide assault cases in particular “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121.
The accused’s and the complainant’s backgrounds
[12] The accused was born in March 1962. His family settled in Sudbury by the time the accused was six years old. His parents are no longer alive. He was a sprinter and graduated from a Sudbury high school in 1980, and then did a semester of journalism at Cambrian College, where his father was a professor. He received a track scholarship to the University of South Dakota at Vermillion in the United States and started there in January 1981. When not at school himself, he trained at Laurentian University, competed in Canada, and coached at the Northland Athletic Club (“NAC”) in Sudbury, before founding his own club. He became well-known in the local track community.
[13] The complainant was born in August 1967. She came from a small town outside Sudbury, where she lived with her parents and a younger brother. The complainant’s father has recently passed away, and her mother now resides in Thunder Bay. The complainant went to elementary school in her home town but attended a Sudbury high school starting in Grade 9. The complainant had started running in Grade 3 and did not stop training as a runner until 1991. She defined herself through her sport.
The charges of sexual assault: Counts 1, 2, and 5
Background: from the initial meeting of complainant and accused up through their marriage
[14] The complainant testified that she met the accused during the summer before she started Grade 9, in 1982, when she was 14 years old. She joined the NAC and the accused became her coach. In his evidence, the accused described meeting the complainant in the summer of 1983, when her mother brought her to Laurentian. For her part, the complainant’s mother, M.P., recalls that the complainant at this time was quiet, timid and “not street smart,” having grown up in the country.
[15] The complainant’s account of her age when things happened has been called into question. In her statement to police and at the preliminary hearing, the complainant indicated that she met the accused and his girlfriend Katrina when the complainant was going into Grade 10. She testified that she was incorrect about that; it was when she was going into Grade 9. She explained that these events were 30 years earlier and that she made such mistakes about grades in speaking to police and at the preliminary hearing because she had forgotten that she had repeated Grade 5, which threw off her reckoning. I am satisfied with this cogent explanation, and I find that the complainant first met the accused during the summer of 1982.
[16] At that time, the accused was back in Sudbury from South Dakota, coaching athletes who were generally in the 15 to 19-year-old range at the NAC. The accused lived with his parents, but the complainant thought of him as a mature adult. Towards the end of the complainant’s first summer training with the accused, he gave her a picture of himself, which made M.P. apprehensive about him. According to the accused, he gave the complainant the picture after she spoke admiringly of it.
[17] The complainant entered Grade 9 at the age of 15 in 1982. The accused had gone to South Dakota for his own schooling but continued to send the complainant letters with workouts for herself and for distribution to the NAC runners. The complainant worked out that school year with other sprinters from the NAC at the Sudbury arena, but did not see the accused again until the end of Grade 9. She testified that they spoke by telephone; the accused would call her, and they would speak for an hour at a time: about track, how things were going, music, and what was going on in the accused’s life. In his evidence, although he downplayed the closeness of their relationship, the accused confirmed that he and the complainant knew each other’s telephone numbers and that he provided her with the workouts. I accept that the two spoke often on the phone during that school year.
[18] The summer after Grade 9, the complainant practiced with the accused and other sprinters of the NAC. They did workouts at the track at Laurentian University three days per week and went to track meets. The complainant loved running: “it was my life.” She was committed to it and focused on it. She had dreams of going to the Olympics. The track coach at the high school described the complainant as disciplined and hard-working. The accused told the complainant that she had a lot of potential, and she thrived on his compliments.
[19] In Grade 10, after the complainant turned 16, the accused remained her coach. On his evidence, the accused was back in Sudbury that September after leaving university when his scholarship was cancelled. In Sudbury, he trained at night at Laurentian with the NAC. The complainant liked that she could tell the accused things that she could not tell her mother. The accused was attentive to her at workouts and made the complainant feel like a superstar who would get to the Olympics. The accused testified that the complainant’s dreams were bigger than her talent. He knew that she wanted to go to the Olympics, but he felt that the complainant was not good enough. The accused claimed that he explained to the complainant when she was 16 that the Olympics were “not going to happen.” Indeed, when he told the complainant in the summer before Grade 10 at the Legion meet that she was not good enough, she responded “ok, I get that now.”
[20] According to the complainant, the relationship between her and the accused grew closer and the complainant gradually became estranged from her family. Her parents were not supportive of the complainant continuing to train with the accused, but the accused reassured the complainant that everything was going to be “ok”. When M.P. told the complainant that her long conversations with the accused were inappropriate, the complainant brushed her off, preferring the accused’s claim that their relationship was special. In his evidence, the accused acknowledged giving the complainant advice about life, but said that he did the same with all his athletes; his relationship with the complainant was strictly that of a coach and an athlete.
[21] That school year, after M.P. would drop the complainant off at her high school in the morning, the accused would show up, although he had no official position there. The high school track coach had hired the accused at one point to coach at the school but discharged him after a few weeks. Starting in the fall of that school year, the accused met the complainant almost daily at school. They hung out and talked about track, music, and what the accused was doing that day. The complainant complained to the accused about issues she was having with her mother. People noticed; the high school track coach spoke with the complainant about her relationship with the accused. There was no reason for the accused to be at the school, but in his evidence the accused acknowledged training there and meeting up with the complainant.
[22] The accused did not get along with M.P. He knew from the complainant that her mother did not like him. He testified that he had called and spoken with M.P. after the complainant returned from the Legion meet with an injury. M.P. told him that the complainant was under doctor’s care, and that he should “mind his goddamned business”. Even though he knew that M.P. did not like him, he continued to coach the complainant.
[23] The complainant “ran away from home” in the spring of 1984 before she turned 17. She had had a big fight with her parents, who were not intending to let the complainant run and be coached by the accused. She called the accused to pick her up. He came in a car with his father, and they collected the complainant and drove her to their house in Sudbury. The complainant did not tell her mother where she was and remained with the accused’s family for about three months in a spare bedroom. M.P. testified that she was unable to speak with the complainant, though she spoke with the accused’s parents. The complainant testified that she left at the request of the accused’s mother, who did not want to keep receiving calls from M.P.
[24] The accused confirmed the complainant’s account of her leaving her parents’ home. The accused presented the situation as not at all unusual. His parents’ home was “open” to people who needed a place to stay. According to the accused, his parents permitted a runner who had left his home country to live in their home for two years; they “basically adopted him.” Out-of-town runners would stay at the home for days at a time. When the complainant was there, the accused and the complainant stayed in separate bedrooms. According to the accused, she was just one of his athletes and a friend. While it was awkward at first, they became closer. The complainant stayed a few months but had to leave because his mother did not like the fact that she was receiving social assistance. In cross-examination, the accused acknowledged that looking back, he could have made a better choice.
[25] The complainant also described that her relationship with the accused grew closer. The complainant testified that “he was the only person I knew.” She had no friends at school, just acquaintances. The complainant told police that she was “well known” at her school, but she explained that that was not intended to imply that she socialized with other students. Running was her life, and the accused was her coach and her whole world.
[26] After leaving the accused’s home, the complainant stayed at women’s shelters for a short time. The complainant and accused agree that he found the complainant a room upstairs at an inexpensive Sudbury hotel, where she remained for more than a year, living on welfare. He helped her out because they had “a passion for sport in common.” The complainant never paid rent for her room at the rundown hotel; she was supposed to work for its owner, but never did. She was too young to tend bar.
[27] But the complainant continued to run, with the accused as her coach, and over time more than that. The complainant developed feelings for the accused but denied that it was love. The accused would not allow the complainant to say that the accused was anything other than her coach, even after he was. He told her that “we need to keep this quiet.” On the accused’s evidence, he brought her food at the hotel. He also described the complainant lunging into him in what he called a “mistletoe moment,” apparently involving a holiday kiss. He decided to “go along with the ride” and he acknowledged a relationship with the complainant when she was 17, although he denied that they were sexually intimate until she was “at minimum” 17 and a half.
[28] The complainant turned 18 before entering Grade 12 in 1985. Shortly after that, on September 6, 1985, she and the accused were married at the Sudbury Courthouse. The complainant remembers getting there from school by bus, and being there with the accused, the judge, and two people whom she did not know. After the ceremony she went back to school. Once again, the accused instructed the complainant not to tell anyone about the marriage, as “people won’t understand.” She told no one that they were married and described their relationship as “just friends”. According to the accused, he was “ok to mention the marriage.” He thought that he had found the love of his life. Although after the marriage the couple lived at the accused’s parents house, only the two witnesses, friends of his, knew about the marriage. He denied being concerned that public knowledge about his marriage to his young athlete would damage his reputation as a coach. Nevertheless, the accused described the marriage as an immature act, reckless, and not thought through – a big mistake.
[29] The complainant continued school, kept running and graduated high school in 1986. After she and the accused married, she returned to the accused’s parents’ home for the balance of the school year. She again stayed in the spare bedroom and did not tell the accused’s parents that she and the accused were married. The complainant agreed that she did not want her parents to find out about the marriage: “they would have killed me.”
Law concerning sexual assault
[30] For a finding of guilt to the charge of sexual assault, the Crown must prove, beyond a reasonable doubt: an intentional direct or indirect application of force by the accused to the complainant, of a sexual nature, in the absence of consent. Consent describes a subjective state of mind of the complainant, directed towards the application of force at issue. That state of mind falls to be determined by the trier-of-fact, based on the evidence of the complainant’s words, thoughts, and actions. The complainant’s claims about consent are subject to considerations of credibility and reliability, just like all other evidence: Criminal Code, ss. 265(1) and (2), 271 ; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 24-30.
Incidents at the Legion meet (Counts 1 and 5)
[31] Counsel for the accused concedes that, if the court finds the facts as described by the complainant with respect to Counts 1 and 5, the charges are made out.
Evidence
[32] The complainant testified that during the summer before Grade 10, in July, she attended a Legion meet at the University of Western Ontario in London by Greyhound bus. Her parents did not attend with her. It was just coaches; the complainant did not remember there being any adult chaperones. The complainant was still 15-years-old. At the preliminary hearing, the complainant had testified that this event occurred when she was going into Grade 11. Once again, the complainant explained that the slip was due to her repetition of Grade 5.
[33] She and her teammates stayed in dorm rooms, two or three athletes to a room. At some point during the meet, when everyone was in their rooms, the accused came to the complainant’s room and knocked at the door. He asked to speak with the complainant and brought her to his room, which he had to himself. At the time, the complainant believed that this meeting was to allow them to speak about upcoming races.
[34] The complainant had sat down on the bed in the accused’s room, and the accused lay her down. K.J. was scared, as she had never seen a man naked. The complainant froze and shook her head; this was not what she wanted. The accused told her it was “ok”. He pulled up her top but left her shorts on. He climbed on top of the complainant, who did not want to “have relations” with him. The accused “grinded on” the complainant moaning. She did not touch him at all. He finished by ejaculating on her stomach, and then wiped her off with a towel. The entire incident lasted 5 or 10 minutes. The complainant left and returned to her own room distraught.
[35] At the meet, the complainant injured her ankle, and could not compete. On their way home to Sudbury in the Greyhound bus with bucket seats, the accused sat beside the complainant who was next to the window with a jacket over her because of the air conditioning. Her ankle was swollen and hurt, and she was quiet and sombre, in pain. The accused repeatedly touched the complainant’s vagina under her panties, on and off throughout the ride back to Sudbury. The complainant “felt awful,” and again just froze. She did not want him to do this. People walked by, but no one said anything.
[36] The complainant was scared and embarrassed. She pretended that nothing had happened. The complainant and accused had never had any prior romantic conversations, and they did not talk about the incidents afterwards. She wanted to keep running, and the accused was her track coach and confidant. She “wasn’t brave enough” to confront him about the things that he had done to her at the track meet. Back in Sudbury, M.P. was furious that no one had applied ice to the complainant’s injured ankle. She took the complainant to the hospital in Sudbury from the bus. This situation only added to M.P.’s disapproval of her daughter training with the accused.
[37] In his evidence, the accused recalled attending a Legion meet perhaps in the summer he met the complainant, but he did not recall in what city, as he had attended so many. Nevertheless, the accused claimed to remember that they travelled in a yellow school bus, as the Legion had no money for anything fancier. He recalled there being three coaches: himself, a Legion coach named Ray McColeman and another coach, along with parent chaperones. They stayed in student dorms, and coaches and parents were also allocated two or three per room. He recalled having two roommates: coach McColeman, who sat up in the hallway to monitor athlete comings and goings, and another person. McColeman was a grouchy, large man who yelled at the athletes and the coaches, and who “always did the Legion meets.” The complainant remembered no such person.
[38] The accused denied collecting the complainant from her room and bringing her to his. He denied being alone with her or even being able to be alone with her, as he had roommates. He did recall the complainant injuring her ankle at this meet. The accused recalled a hot bus ride home. The accused sat up front with the coaches. There was no air conditioning on this bus, which was a school bus with bench seating. The bus was loaded with athletes and others, so the accused denied that he could have done what the complainant claimed without being seen.
Analysis
[39] In assessing the evidence in relation to these charges, I am guided in my analysis by the W.(D.) decision.
[40] The complainant’s account offered many details about events that create some confidence that something happened to her at the meet and on the bus on her way back to Sudbury. I believe that the complainant was trying to tell the truth. Her decision not to confront the accused about his misconduct must be understood in the context of her admiration for the accused as the coach who could help her achieve her athletic aspirations, and I do not find that it detracts from her credibility. However, her description of events lacks a surrounding narrative that would allow me the level of confidence required by the criminal burden of proof. Her descriptions are narrowly focused, and do not address so much else that was going on but not spoken of. This is no fault of the complainant, but rather the undeniable effect of 35 intervening years. The lack of detail reduces confidence in the reliability of the complainant’s account:
a. What led up to the incident inside the accused’s room? Was there any discussion about the upcoming events? Was there anything more intimate discussed?
b. How did it come about that the accused laid the complainant back on the bed? Was the accused sitting with her, standing, or what? Did this come out of the blue, or were there preliminary romantic advances?
c. At what point did the accused strip off his clothing? What was the complainant doing while that was going on?
d. Did anyone stop by to speak with the accused or the complainant on the bus ride home?
e. Did the bus stop along the way for rest stops and meals? Did the complainant or accused ever get off the bus or change seats after stops?
[41] Moreover, the accused testified and provided a denial of physical interaction with the complainant and offered plausible details in his own account of the Legion meet:
a. the complainant’s account requires an air-conditioned Greyhound bus with bucket seats, while the accused testified to a hot school bus with bench seating;
b. the accused claims that there were adult chaperones, which makes sense, and a coach McColeman who monitored people’s activity, while the complainant recalled no such people;
c. the complainant claimed that the accused had no roommate, but he insists that he had one or two roommates;
d. the accused claims that he sat at the front with other coaches on the ride back to Sudbury, while the complainant has them seated together. On the accused’s evidence, it is unlikely that he would have been able to do what the complainant alleged, or at least do so unobserved.
[42] I need not decide at this stage whether I believe the evidence of the accused or whether it merely leaves me in doubt in the context of all the evidence. While I believe that what the complainant claims about sexual assaults at the Legion meet and on the way home probably occurred, I am not satisfied beyond a reasonable doubt.
Incident at the President Hotel (Count 2)
[43] The allegation of sexual assault at the President hotel is a different story.
Evidence
[44] The complainant testified that one evening in Grade 10, in the late fall before Christmas, there was a party that she wanted to attend in Sudbury. By this point in time, the complainant felt that the accused was special. She thought that she was his favorite athlete. He was her coach, and she trusted him and felt comfortable with him. She would do anything to please him. The complainant also saw him as a good friend and confidant, someone with whom she could speak about problems she was having with her parents.
[45] The complainant testified that she got permission from her mother to stay at a friend’s house in Sudbury overnight. At some point, the complainant met up with the accused, and decided not to go to the party. Instead, she went with the accused to the President Hotel. As they did not stop at the desk, it appeared to the complainant that the accused had already registered at the hotel.
[46] In her statement to police, the complainant had instead stated that from the start it had been the plan to meet up with the accused but to pretend to be going to a party in Sudbury. This tangential inconsistency is of little concern in assessing the complainant’s credibility and reliability about this incident, especially given that the evidence of the complainant concerning events in the hotel room was not contradicted in any meaningful way. In fact, the most controversial aspect relating to this incident is when it occurred, not that it occurred.
[47] According to the complainant, in the hotel room she stopped feeling comfortable, and did not want to be there. She was sitting on the edge of the bed and became scared and nervous. She froze. The accused took his own clothing off and removed the complainant’s pants. The complainant started to cry. The accused put on a condom and lay the complainant back on the bed. From beside her, the accused put his fingers in the complainant’s vagina, telling her that it was going to be “ok”, and that he had to get her lubricated. The accused got on top of the complainant and spread apart her legs which she described as “stiff as boards.” The accused put his penis in her vagina, while the complainant was telling him that she could not do this, that it hurt. The accused did not stop; he tried to kiss her, but she turned her head. The complainant thought that the accused ultimately ejaculated.
[48] The complainant estimated that she had been in the accused’s room for 20 or 30 minutes. She took a cab back to her friend’s house in the south end of Sudbury. The complainant was scared about having lied to her mother and having left her friend.
[49] In his evidence, the accused testified that this incident took place sometime after the two were married, when the complainant was eighteen and in Grade 12. They had never until then “had sex” but had spoken about it. The two met up at the President Hotel, where the accused had booked a room. After events in the room – about which the accused only stated that they did not include “forcible” sexual intercourse – they went to a non-alcohol dance.
Analysis
[50] The timing of this incident merits some consideration. The complainant’s account was detailed and comprehensive and told in a straightforward manner, and she was not challenged on events in the hotel room. Her presentation of events was consistent save for tangential details about whether arrangements to meet the accused were planned in her home town or only once she arrived in Sudbury, and incidental issues surrounding the friend at whose home she was supposed to be staying that night. I accept her evidence concerning all material aspects of this allegation, including that she was 16-years-old and still residing with her parents when the incident took place.
[51] I do not accept the accused’s evidence that this rendezvous took place after the couple were married and residing at his parents’ home. I find that the accused sought to leave the false impression that he did not have sexual intercourse with the complainant until after marriage, and I reject his evidence that the assignation at the hotel took place after the couple’s marriage.
[52] The accused’s evidence about his relationship with the complainant was evasive and self-serving throughout. He consistently denied the obvious, and downplayed the couple’s quick-growing intimacy:
a. I find that the accused’s interest in the complainant was signalled the summer that he met her before she entered Grade 9, when he gave her a picture of himself, which raised red flags for M.P. I do not accept the accused’s denial of any subtext to the gift.
b. The fact that the accused continued to coach the young complainant even in the face of M.P.’s opposition is baffling unless he continued to coach her for some reason other than (as he claimed it) her limited talent for the sport.
c. The accused tried to neutralize the significance of his long calls and conversations with the complainant during her first two years of high school and claimed that he lavished such attention on all his athletes. But I am satisfied that the complainant was unique in this respect. The accused and complainant had long phone conversations from the United States to Northern Ontario the school year after they first met. The following school year, the accused met with the complainant regularly at her high school to speak with her, though he himself had no status there. This was courtship.
d. Having been fired as an assistant coach at his old high school, the accused could not risk people finding out about his relationship with his young athlete the complainant, so he told her to tell no one. His denial of this fact calls the reliability of his evidence into serious question. While the complainant did not want her parents to know about the relationship, the accused naturally did not want anyone at all to know.
e. The accused permitted the complainant to live in his home as a runaway for three months and likened that stay to weekend lodging for out-of-town athletes visiting Sudbury for a meet, or a safehouse for a foreign runner virtually adopted by the accused’s parents. I reject this equation and find that the accused was making efforts to get closer to the complainant and make her dependent on him.
f. The stay at the accused’s home was followed up by his securing a residence for the complainant at a hotel where she paid no rent, and the accused visited her and brought her food. There is no evidence that he also did that for other athletes. He wanted control over the complainant, her isolation, and her dependency on him.
[53] In this context I reject the accused’s claims to have told the complainant when she was 16-years-old that she would never achieve her Olympic aspirations. His stature as a track coach is what drew the complainant into his orbit and made her desire to do anything to please him. The accused was aware of that and continued to exploit it to his advantage, at least until the two were married. The complainant testified to being devastated in 1988 when she had to let go of her Olympic dreams, but that was long after she was 16.
[54] According to the accused’s evidence he and his 18-year-old bride decided to meet at a hotel to consummate their relationship, a strange Nickel City honeymoon. On the accused’s version of events, the two met up at the hotel, even though they were living together at his parents’ home after their marriage. Why not just travel to the hotel together? The discussion described by the accused is in fact more consistent with the complainant’s evidence that the meeting occurred when the complainant was in Grade 10, and that she spent time at the hotel with the accused by pre-arrangement from her small town, or once she arrived in Sudbury. Indeed, the complainant’s timing of the incident coincides seasonally with the accused’s description of the “mistletoe moment” that signalled to him that intimacy with the complainant was at hand.
[55] But suppose I did not reject the accused’s evidence and I situated the event after the marriage in September 1985. The allegation in Count 2 extends up through December 1985, and both complainant and accused testified to only one encounter at the President Hotel. The simple fact of marriage does not itself render intercourse between husband and wife consensual, and in this incident, there was no consent.
[56] In his evidence, the accused denied any “forcible sexual intercourse” with the complainant. But he went no further. I reject the accused’s denial, in the context of the details that the complainant clearly set out.
[57] The complainant spoke of freezing up when she was in the room, of telling the accused that she was unable to continue with the act, while she wept. Her legs were stiff with fear. She turned away to avoid his kiss. In this context, what does it mean that the accused did not think that his dealings with the complainant involved forcible sexual intercourse? The complainant explained in detail why she felt that she was sexually assaulted, and her details are the only ones before the court.
[58] I find beyond a reasonable doubt that events on the bed in the hotel room transpired as described by the complainant. There was the intentional application of force by the accused to the complainant in an obviously sexual context. The complainant’s words and actions must have made clear to any observer, and did make clear to the accused, that even if she had earlier expressed a willingness to consummate their relationship or their marriage, when it came to the act itself, she felt she could not continue and did not want to proceed. The accused did continue with vaginal intercourse without the complainant’s consent, and beyond a reasonable doubt committed sexual assault.
The assault charges: Counts 3 and 4
Background: the married life of the complainant and the accused
[59] After the complainant’s high school graduation, the complainant and the accused took a small apartment on Regent Street, Sudbury, where the two lived for about two years. The complainant looked for work and the accused sold vacuums. The complainant described her relationship with the accused as “not good” and the accused as mentally abusive. He controlled her every move and would punish her if he did not like what she did. She hated getting the accused upset, as he would embarrass her, or worse. The accused would start yelling and the complainant would cower. The complainant generally did what she was told by the accused.
[60] The accused alienated the complainant from everyone she knew, and the complainant felt isolated and controlled. She could do nothing without him being with her or knowing where she was. He controlled her every move and punished her if he did not like what she did. They had physical altercations and many arguments over issues so trivial that the complainant can not now recall them. In his evidence, the accused acknowledged that he and the complainant would fight and have arguments over money after an initial honeymoon period when the marriage was good. The accused described an occasion in which the complainant smashed electronic equipment that he had just bought during the course of one such argument.
[61] In 1987, while living at Regent Street, the complainant began working at the Venture Inn, where the accused called her often. He also became concerned about attentions from a male guest that the complainant had received. He apparently called police to the hotel to speak with the complainant and the guest. The complainant soon after lost that job; she believes that it was because of the accused’s conduct.
[62] The complainant then worked for about half a year in 1988 at the Town of Walden in the Town office. In the summer of 1988, near the end of the complainant’s contract with Walden, she and her co-workers had a get-together, to which the complainant drove the accused’s car. On her way home, patrol cars surrounded her, and she was forced to get out with her hands up. The car had been reported stolen. The accused himself attended, spoke with police and they left. The accused told the complainant that he was upset because she was coming home too late (it was before midnight). The complainant felt terrible and embarrassed by the police attendance. She was fearful that the accused was prepared to call the police on her. When they argued, she anticipated that the accused would become violent or yell at her, but police involvement was “not a good situation.”
[63] It was the accused’s evidence on this police involvement that he and the complainant had an argument because she wanted to take the car to the Town of Walden function, and he was worried about people drinking. He did not want someone driving drunk, although he knew that the complainant did not drink. The complainant took the car anyway, and the accused called police. He testified that he was concerned about the car. The accused described this conduct as “stupid, petty and immature,” but denied that he called police to embarrass her. Rather, he “called to report a crime.” I saw no crime here by the complainant.
[64] Throughout most of their marriage, the complainant kept running. The accused remained her coach and arranged attendance at meets. She was provincially ranked and went to the Nationals and trials for the Pan Am games. The complainant loved running and continued to have dreams and aspirations of success. The complainant’s Olympic dream only ended after 1988, when she got injured and knew “that it wasn’t going to happen.” The complainant still travelled with the accused for track to Utah, Florida, Montreal, and Los Angeles, where they appeared dancing on the Arsenio Hall show. She gave up running altogether in 1991.
[65] From Regent Street, in 1989 or 1990, the couple moved to a secure building on Brodie Street. There they lived first in a basement apartment, and then moved to an upstairs apartment. According to the complainant, the move to Brodie Street was done to avoid creditors.
[66] For the couple had financial problems. The complainant did not spend money, the accused did. The complainant’s money went to pay for food, bills, and rent. She had nothing in her bank account. According to the complainant, the accused was financially a disaster. When they were living on Brodie, the accused would apply for credit cards, and give the credit companies false information. He directed the complainant to pretend to be his employer when a credit company called their land line, and she confirmed the accused’s employment: “I lied for [him] so he could get a credit card.” In his evidence, the accused acknowledged that 90% of the financial issues were his fault. The accused described in his evidence that when they had lived at Regent Street, he lived like he was trying to “keep up with the Joneses.” He admitted telling the complainant to lie so that he could get credit cards.
[67] During her marriage, the complainant did not see her family often. She spoke with her mother on the telephone and had short visits at their home about once or twice a month. The complainant loved visiting her parents, and she missed them. It was the accused’s habit, however, to make repeated calls to the complainant’s parents’ phone when the complainant was there and hang up if anyone but the complainant answered. This conduct frightened the complainant and upset her mother, and she knew that such calls signalled the end of the visit. This was confirmed at trial in the evidence of M.P.
[68] In 1988, the complainant’s family had moved into Sudbury so that they could have contact with the complainant after a long period without. M.P. described the complainant as visiting occasionally, but “she never said anything,” even when M.P. pressed for information. She described the complainant as never having any friends, and on one occasion the accused acted like he was going to run down a male who had come over to the house. The accused showed that “he was very much in control.” In around 1990, M.P. told the complainant that she could not take the stress from the conduct she witnessed and asked her not to come home until she was done with the accused. The complainant’s estrangement from her family only ended once she left the accused.
[69] In his evidence, the accused acknowledged making the calls that were testified to by the complainant and her mother. According to him, however, it was the complainant who requested him to call when the complainant was visiting her mother, as she needed a reason to bail out from her mother’s house after a couple of hours there. He had almost no interaction with the complainant’s family, as “there was always drama if I called.” It was his evidence that after the verbal abuse from M.P. in his call after the Legion meet, he did not want to talk to her again.
[70] The complainant’s grandmother died in Thunder Bay in the winter of 1992. The complainant, after asking the accused if she could attend the funeral with her mother, flew up to Thunder Bay. On their return after only four days, the complainant went to her mother’s home. Police attended there, asking for her. The accused called police because the complainant had taken some running shorts belonging to him. In his evidence, the accused agreed that it was “stupid and petty” of him to call the police because the complainant had taken some shorts and track gear of his. But he “did not know what to do.” After all, he needed the clothes, and could not call the complainant’s mother. In his view, “calling police made more sense.”
[71] Towards the end of their relationship, the complainant started working at Bell Canada, midnight shifts, as a 411 operator. When the complainant was working, the accused kept calling, as many as ten or more times, until he would get her on the line. Their conversations were not pleasant. He quizzed her about what she was doing, who was there, and when she would be home. She would hang up on him. She felt that she did not want this to be her life, and that if it kept up, she was “going to die.”
[72] By January 1993, the complainant decided that she had to escape the marriage. The accused had started working and went to Toronto for a business conference. After the accused left, the complainant gathered clothing into bags to leave, but the accused returned home unexpectedly. He saw the bags, they had a big fight, and the accused became aggressive. In cross-examination, the complainant described getting on the accused and almost killing him with a knife to his throat. She stopped because she did not want to go to jail. Although the complainant apparently had never told anyone before about this knife incident, it was confirmed by the accused.
[73] The complainant went on to testify that the day following this extraordinary event she called her mother from a payphone and told her that she wanted to come home. The complainant’s mother picked her up and put her on a bus to Thunder Bay where the complainant had relatives.
[74] The accused recalled an occasion of being on the ground while the complainant had a knife at his throat, threatening to kill him. According to the accused, although the complainant was screaming and yelling, he kept his voice low, and asked the complainant to get off him. He explained that after events such as this, they would usually just sit down and cool off. He described no other events such as this one.
[75] Concerning the end of the marriage, the accused testified that during his business trip in Toronto he called the complainant, who had complained about being stressed at work. The complainant was in tears, and the accused tried to console her. He returned home, and they talked. The complainant asked to go back to the conference with the accused, but he refused her. He returned to the conference and spoke with the complainant on the phone the following day; he would be home for dinner. When he returned home, her clothing was gone. He “did not know what to make of it.” In the accused’s account, the fact that the complainant had had him on the ground with a knife at his throat and uttering a threat to kill him is not attached to this business trip or to any time at all.
[76] In his account, when he found her gone, the accused called Bell and was told that the complainant was on stress leave. Three weeks later he heard from the complainant’s lawyer, telling him that the complainant wanted out of the relationship. The complainant obtained a divorce after a year of separation. M.P. explained that she assisted in getting a lawyer for the divorce. In the intervening year, the complainant stayed with an aunt and uncle in Thunder Bay, and then rented space with another relative there. She had left the marriage with nothing. The couple had no joint bank accounts, just joint debts, of which her mother paid off half. The complainant did not see the accused again until the preliminary hearing in this case.
[77] At the conclusion of his evidence in chief, the accused spoke about his conduct as a husband. He stated that he was “not a husband.” He described himself as selfish and acknowledged that he took the complainant for granted and put her into a depression. He was immature, and he regretted the emotional roller-coaster caused by the debt he incurred. Although I found this the most accurate aspect of the accused’s evidence, it was also terribly incomplete. On the totality of the evidence at this trial, he was also without a doubt manipulative and controlling of the complainant. Even in this indication of his failings as a husband he attempted to divert attention away from the complainant’s description of his assaults and towards the couple’s financial difficulties. I found credible the complainant’s view that the couple’s financial circumstances played only a small part in the dissolution of their marriage.
[78] The complainant went to university, graduated, and remarried. Until she spoke with the Greater Sudbury Police in March or April 2017, she did not tell anyone about what the accused had done to her, even her mother. She was embarrassed, humiliated, and did not think that anyone would believe her. Instead she worked at making a good life for herself and tried to forget about it. The complainant denied hating the accused, but did state that she feared him.
Law relating to the assault charges
[79] On the facts of this case, for the charges of assault, the Crown must prove, beyond a reasonable doubt, the intentional direct or indirect application of force by the accused to the complainant, in the absence of consent: Criminal Code, s. 265(1)(a). The charge alleging bodily harm requires proof that as a result of the assault the complainant suffered a hurt or injury that interfered with her health or comfort and that was more than merely transient or trifling in nature: Criminal Code, s. 2 “bodily harm”. The Crown must also prove that a reasonable person in the position of the accused would be aware that the assault would expose the complainant to the risk of suffering some type of bodily harm: R. v. Nurse, [1993] O.J. No. 336 (C.A.).
[80] Substantial evidence was led from the complainant concerning her relationship with the accused, without any objection from counsel for the accused. Much of it was confirmed by the accused himself. I found this evidence to be highly probative: of the accused’s “animus” towards the complainant and his efforts to control her; as a means of understanding the nature of the complainant’s response to the accused’s conduct in situations that form the charges on the indictment; in weighing the accused’s innocent explanations for the conduct charged; and in assessing the credibility of the complainant. However, this evidence cannot be used, and was not used, simply to show that the accused is the type of person to commit the offences, or to show that the accused is a bad person who therefore deserves to be convicted of the offences charged: R. v. D.S.F., [1999] O.J. No. 688 (C.A.), at paras. 13-35.
Hand incident on Regent Street (Count 4)
[81] An incident occurred in the summer of 1988 while the Olympic games were going on. The couple were financially strained, and they got into arguments over trivial things. The accused agreed that the financial pressures related to his losing a job in radio sales. He testified that he had to resort to selling vacuum cleaners, and the complainant directed vitriolic verbal abuse at him, leaving him feeling “deflated.”
[82] The complainant testified that during one argument in the apartment on Regent Street, the accused grabbed her with both hands by the shoulders and threw her down four steps to the landing next to the screen door of the apartment, which held a glass panel. The complainant described landing on her side, and that in bracing for impact her hand went through the glass in the door. She was badly cut, and pieces of glass remained in her hand. The complainant was bleeding badly, and wrapped her hand in a towel, but the accused would not drive her to the hospital.
[83] As told by the complainant, she began walking to the hospital. The accused came up in his car behind her, honking his horn. The complainant did not want to get in the car with the accused, because she was scared and angry. Eventually, driven by panic at the bleeding, the complainant got in the car, and the accused drove her to the hospital. He parked in a spot distant from the hospital, and made the complainant walk in. She passed out when she got inside.
[84] In his evidence the accused claimed that the injury to the complainant’s hand occurred not during an argument, but while the two were dancing together to jive music near the stairs. When the accused twirled the complainant, she lost her balance in the flip flops she was wearing and tripped down the stairs. As he describes it, the accused got a towel for the complainant, and washed her hand. His car had “issues” and had to warm up first, but he drove the complainant to the hospital, brought her into emergency, and parked in the first space he found. When he got back into the hospital, the complainant was on a gurney in the hall. He could not say what went on with the complainant while he was not with her.
[85] The complainant testified that she received a transfusion and had to have surgery to repair the tendon in her ring finger. The complainant remained in hospital a few days and transferred to a different hospital site for surgery. The complainant told the people at the hospital that she slipped or lost her balance and put her hand through a window. She did not tell her parents what had happened.
[86] The complainant denied the suggestion that she had not passed out, but hospital records that were filed as an exhibit describe the complainant as oriented and stable. However, the record appears to indicate a time of “2210” for that observation, though the complainant is indicated as having arrived at the hospital at “1917”. Her state of consciousness at three hours after arrival at the hospital cannot serve to contradict the complainant’s claim that she lost consciousness upon her initial attendance. Nor does anything in the hospital record suggest that the complainant exaggerated her wound; she suffered tendon damage to her hand, underwent surgery, and still has a three-inch scar on her palm.
[87] M.P. described being called from the hospital to let her know that the complainant was being transferred. She attended and saw her daughter’s bandaged hand. In his evidence, the accused said he left the complainant’s side only when her mother showed up, as they did not get along. At that point he stood at the door. The complainant said that she had fallen against the glass, but at that point in time the accused was standing nearby in the doorway.
Locked out naked (Count 3)
[88] The complainant described two incidents from her marriage in which the accused forced her out of the home naked and locked her out.
[89] The first took place when they were still on Regent Street when the complainant was 19 or 20 years old. She was uncertain whether it occurred before or after the hand incident.
[90] During a trivial argument in which the accused was screaming at the complainant (“I was always doing something wrong”), he told her to remove her clothes and forced her to do so when she initially refused. She does not recall a threat, but she recalls having been very scared. It was a cold winter night. Once she was naked, the accused pushed the complainant out the apartment door and down two steps into the snow beyond, while the complainant pleaded with the accused not to kick her out. The complainant estimated that the temperature outside was -15 degrees.
[91] The accused then closed and locked the door, leaving the complainant outside in the dark. As the complainant put it, “I was outside naked in a snowstorm.” She banged on the door to be let back inside. From inside, the accused turned the outside light on and off. The complainant felt frozen and embarrassed. The complainant’s feet were “turning colour,” and she huddled against the door. She did not run to any other doors, as there was snow all over the ground, and she did not want to run around naked. Eventually the accused opened the door and allowed her back in. The complainant apologized for whatever she had done, just wanting it to be over. The complainant did not think that anyone saw her outside, and she told no one about the incident. Her feet were sore, but they warmed up, so she did not go to the hospital.
[92] The second such incident took place on Brodie Street, when the couple were living in their second-floor apartment, a year or two after they left Regent Street. The complainant believes that it took place in 1990 or 1991 in the winter or early spring, as she recalls her bare feet getting wet from the water melting off people’s boots.
[93] Again during an inconsequential argument, the accused yelled at the complainant to take off her clothes. Although she initially said “no,” she was too scared just to walk away from the accused, so she complied. Once the complainant was naked, the accused pushed her outside into the hallway through the apartment door. The accused then started banging on the inside of the door, and would not let her back in.
[94] The complainant described going into the stairwell and hiding herself against the wall behind the solid open door that separated the hallway from the stairwell. Two groups of people came upstairs, some 5 or 6 people altogether, apparently unable to see the complainant behind the open door, so far as the complainant could tell. The complainant estimated that she was locked outside of the apartment naked for approximately an hour, while the accused occasionally banged on the door from the inside. Eventually, the accused opened the door and allowed the complainant back inside.
[95] The accused acknowledged that his arguments with the complainant over finances escalated when they lived on Brodie Street. The accused admitted that he did lock the complainant out of their apartment on more than one occasion. Sometimes he had to tell her to “go out and walk it off” if the complainant was upset. When she left, he locked the door, but he let her in when she came back and knocked. According to the accused’s evidence, at different times, each of them told the other to get out. He denied throwing the complainant out of the Regent Street apartment naked in the winter or locking the complainant out naked in the hallway at Brodie Street.
Analysis
[96] I accept the evidence of the complainant concerning Counts 3 and 4 on the indictment.
[97] I found the evidence of the complainant to be compelling, candid, and credible overall. Concerning the assault and assault causing bodily harm charges, her descriptions were straightforward, and there was sufficient detail for me to understand the circumstances surrounding the incidents. Her account of beginning the long walk to the hospital when the accused would not drive her, and then of his coming up behind her in the car honking his horn, paints a vivid picture of a man overborne by his anger to the point of leaving his injured wife to her own devices before relenting. Such details as the accused forcing the complainant to strip naked preliminary to being thrown outside, his flicking the lights on and off on Regent Street and banging on the inside of the door on Brodie Street allow glimpses of the animus behind the accused’s conduct and his desire to draw attention to the complainant and humiliate her. The complainant fairly did not seek to deny the suggestion put to her by counsel, that the couple’s financial circumstances played a part in her decision to leave the accused, though a lesser part.
[98] Certain aspects of the complainant’s account that might cause concern about recent invention are in fact corroborated by the accused’s own account. So, although the complainant did not tell police that, after she left her parents’ home, she lived at the accused’s home for three months, the accused himself confirmed that account. And although the complainant did not need to bring up the incident in which she held a knife to the accused’s throat, she did so, as she considered it important to her narrative, even if it portrayed her in a bad light. While it appears to have been only now revealed, it too is confirmed by the accused. The complainant’s apparently spontaneous admission of such an incident demonstrates her desire to be truthful and complete.
[99] Moreover, the testimony of the accused is corroborative of the complainant’s account in other significant ways:
a. There were financial issues in the marriage that caused the couple distress. Most of those problems were admitted by the accused to be his fault. He agreed that he directed the complainant to assist him in lying to credit companies to get credit.
b. The accused acknowledged his pattern of repeatedly calling the complainant when she was at her parents’ home and hanging up if someone else answered.
c. The accused acknowledged at least twice calling police against the complainant, his wife.
d. The accused agreed that he locked the complainant out of their apartment but asserted that she did the same to him. I do not accept that the complainant locked the accused out of their home at any time, and do not recall the complainant ever having been asked whether that was the case.
e. The accused acknowledged that he was with the complainant when her hand was injured; he simply denied that it came about as an assault. Rather, his claim was accident.
[100] The complainant’s account of the hand incident is corroborated by medical records that confirm the dating of the incident and the extent of the complainant’s injury, which easily qualifies as “bodily harm.” Interestingly, the records also note that the complainant attended the hospital with her “boyfriend,” rather than her “husband.” I find that this notation confirms the complainant’s assertion that the accused directed her to tell no one about their marriage, as opposed to the accused’s claim that it was the complainant who wanted to conceal her marriage from her mother. M.P. would not have had access to this record.
[101] I also note that M.P. offered very telling evidence of the complainant’s abject fear of the accused that caused her to bring a knife to her husband’s throat and call her mother to come collect her at the end of the relationship. According to M.P., the complainant was nervous and weeping and kept looking over her shoulder, and lay down in the back seat of the car on the way to the bus to Thunder Bay, evidently concerned that the accused might see her.
[102] Finally, although the complainant told people at the hospital that she had fallen and cut her hand, I accept her testimony that she was pushed by the accused and suffered bodily harm. It is significant that the accused was at the hospital with the complainant when she told hospital personnel that she was injured in a fall. In any event, by this point in their relationship the accused had the complainant under his control, and the complainant was feeling that there was nowhere for her to turn. A description by the complainant of the actual cause of her injury at the time, in the presence of the accused, would have been more surprising than her evasion: see, e.g., R. v. Lavallee, [1990] 1 S.C.R. 852, at para. 54.
[103] I reject the evidence of the accused that an accident while dancing was the cause of the injury to the complainant’s hand and his denials of having pushed the complainant outside naked into the snow on Regent Street and into the upstairs hallway on Brodie Street. I am not left in a reasonable doubt by the accused’s evidence alone or in combination with any other evidence in the case.
[104] The accused’s evidence was very problematic. I have already made comment about aspects of the accused’s evidence relating to Counts 1, 2, and 5. I find that the accused’s explanations for some of his most egregious conduct during his marriage to the complainant are implausible and incredible, and are intended to set himself in a more favourable light:
a. The accused admitted his pattern of calling the complainant and hanging up when she was at her parents’ home. I reject the accused’s claim that he did this at the complainant’s behest, so that she would have an excuse for leaving. There was no need for the complainant to escape her family’s home; she did not have to visit if she did not want to stay, but it is apparent that she enjoyed her time with her mother. I find that this explanation by the accused is an effort to manipulate the narrative of his relationship to downplay his controlling and demeaning conduct.
b. The accused acknowledged repeatedly calling police to report the complainant, his wife. I reject the accused’s explanations for this conduct as nonsensical: that he needed his athletic equipment and could not speak with the complainant’s mother; and that he was reporting criminal conduct. He called police to show the complainant that he was in charge, and to humiliate her. It was a tactic of control. Significantly, he did not apparently call police to report the complainant after she held a knife to his throat and verbally threatened his life.
[105] The incident with the knife shows the complete unreliability of the accused’s evidence. This episode was plausibly offered by the complainant as a watershed event at the end of her relationship with the accused. She related it to the accused’s business trip to Toronto. I accept that it must have occurred at that time. However, the accused attempted to use the incident to portray himself as a victim, but still calmly and rationally talking the complainant down. He offered no context for such a shocking episode. In his evidence, he was surprised to return from his conference to discover the complainant had left him, as he had been calmly chatting with her on the telephone shortly before about dinner. The accused’s account of the end of the relationship appears to be an attempt at image-building, without genuine substance. He tried to turn the complainant’s disclosure of the knife incident in her cross-examination to his advantage, but it does not fit into the description of his innocent surprise at finding that the complainant had gone.
[106] I find that the assaults described by the complainant are further confirmed by the nature of her relationship with the accused, and what it shows concerning the accused’s motivation or animus towards her. Throughout their marriage, the accused was motivated by a desire to control the complainant and compel her obedience. This motivation is demonstrated by such things as the accused’s admitted evidence of repeatedly calling the complainant’s mother’s home when the complainant would visit there, and by the evidence of the accused’s resort to unnecessary contact with police against the complainant. The conduct that constitutes the various assaults in this case was similarly motivated. Just so, during some arguments, the accused resorted to violence against the complainant to show his control over her and her duty of obedience.
[107] As to Count 4, I find beyond a reasonable doubt that during an argument on or about June 27, 1988, the accused intentionally pushed the complainant down some stairs in their apartment without her consent, causing her hand to go through glass in the apartment door as she fell, and thereby caused her bodily harm. The accused must have been aware that pushing his wife down stairs towards the door would expose the complainant to the risk of bodily harm.
[108] I also find beyond a reasonable doubt that, on two occasions during the period charged in Count 3, during arguments, the accused forced the complainant to strip and then intentionally pushed her naked outside the couple’s apartment without her consent. The first time he pushed her out into the snow of a wintry night in Sudbury, the second time into the hallway outside their second-floor apartment. In each case he locked her outside for some considerable time. He flicked the outside light on and off or banged on the door from the inside to inspire humiliation in the complainant at the thought that the attention of passersby would be drawn to her naked helplessness.
Conclusion
[109] For these reasons Counts 1 and 5 on the indictment are dismissed. Findings of guilt will be registered on Counts 2, 3, and 4.
Justice A.D. Kurke Released: March 13, 2020