Court File and Parties
COURT FILE NO.: 19-DV5091 DATE: 2020/03/13 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: R. v. B.W.S
BEFORE: Mr. Justice C. MacLeod
COUNSEL: Matthew Geigen-Miller, for the Crown B.W.S., accused, in person
HEARD: January 27 – 31, February 3 – 6, 2020, Oral Judgment Given March 12, 2020
Notice This is the written version of reasons delivered orally. The decision has been edited and anonymized for publication. Pursuant to s. 486.4 of the Criminal Code of Canada, no information that might identify the victim or any of the witnesses in this proceeding may be published, broadcast or transmitted in any way and it is a criminal offence to do so.
Decision and Reasons
MACLEOD J: (orally)
[1] This is my decision in the matter of R. v. B.W.S. This trial took place before a judge without a jury between January 27th and February 6th, 2020. The accused was charged with 12 separate offences arising out of a series of events taking place between May 13th, 2019 and June 14th, 2019. The charges included sexual assault, assault, threatening, theft of a motor vehicle, and several counts of breach of probation.
[2] The accused chose to represent himself during the trial. He had been represented by counsel at one stage in the proceeding but had discharged his lawyer and elected to defend himself. He was provided with certain materials to assist him in his task by the court and by the Crown. He generally expressed and demonstrated awareness of court room procedure and of the Criminal Code and as the record will show, he understood how to bring Charter and other applications and knew how to request that a witness be subpoenaed.
[3] In addition, the accused had some limited assistance from Mr. Baum who had been appointed by the court as counsel pursuant to s. 486.3 of the Code. I say limited because the purpose of s. 486.3 is simply to provide a mechanism for cross-examination of certain witnesses in circumstances where the court has determined it would be inappropriate for the accused to carry out such a cross-examination in person. Mr. Baum was not counsel of record and was not amicus. He was not present during the entire trial but he does represent the accused in another criminal proceeding. The accused did have an opportunity to consult with Mr. Baum from time to time and advised the court he had obtained advice.
[4] I am satisfied that the accused understood his legal rights, understood the nature of the charges he was facing and the burden on the Crown. He consciously made tactical decisions such as calling witnesses, declining to call witnesses, conducting cross-examination and giving evidence himself. He delivered focused and concise opening and closing submissions.
[5] It is the position of the accused that the Crown has not met the onus of proof on any of the charges. He urges me to reject the evidence of the Crown’s witnesses who he says are untruthful and engaged in a joint attempt to convict him of crimes he did not commit. In the case of the motor vehicle theft, he raises a legal argument as well as the Crown’s lack of direct proof.
Introduction
[6] Before I begin my analysis of the evidence and pronounce my decision, I want to describe the context in which the accused comes before the court. This is a very young man facing very serious charges. The gravity of his situation is compounded by the fact that he has already spent most of his adult life in jail. I am not privy to all of the reasons for this history nor is it a factor in the determination of guilt or innocence. But it is remarkable. After his release from prison, in February of 2019, the accused enjoyed some four months of liberty before he was arrested in June of 2019. With the exception of a few days, when he was inadvertently released and rearrested; he has been in custody ever since. By any measure, for a 22 year old, this is a circumstance that is sad and disturbing.
[7] I also want to acknowledge the level of prejudicial media coverage the accused has attracted. Before and during the trial the accused was the subject of newspaper articles with his photograph and highly sensationalized headlines describing him as a “child predator”, “rapist” and “dangerous sex offender”. Some of that coverage was attracted by notoriety from the fact that the accused was briefly at liberty. But the sensationalizing continued throughout the trial. The accused raised concerns about this publicity in relation to his safety but also in relation to his right to a fair trial and to the presumption of innocence.
[8] It would be inappropriate for me to comment adversely on the conduct of the reporters or editors who are not before the court or to make findings on issues that are not before me. Because this was a judge alone trial, I did not accept the argument that the media coverage involved a Charter breach or could have triggered a venue change. The media coverage would have been of significant concern had there been a jury.
[9] To be clear, I reiterate that these circumstances cannot be a factor in my determination of guilt or innocence except to the limited extent that they may touch on credibility. Under Canadian law a finding of guilt depends on the answer to a singular question. Has the Crown proven each of the elements of each charge beyond a reasonable doubt on the basis of properly admissible evidence?
[10] In the words of the Charter the accused has the right not to be deprived of liberty “except in accordance with the principles of fundamental justice” and “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” [^1]. Sympathy does not enter into that calculation nor am I entitled to presume guilt on these charges due to previous convictions or because of other charges I know the accused is facing. My decision is based solely on the evidence received during the trial.
[11] Victims of an alleged crime are also entitled to the protection of the law. They are entitled to give evidence under the protection of the court, to have that evidence received and evaluated fairly and not to be revictimized by inappropriate attacks upon their character or by unfair scepticism based on stereotypes. This is particularly the case for complainants in sexual assault cases who are provided with specific safeguards under common law and under the Code.
[12] One such safeguard is the prohibition on questions or evidence about previous sexual history. Another such safeguard is the ability to testify from another room by CCTV which I permitted for the complainant and one of the witnesses. As noted above, there is also a publication ban prohibiting the publication of information that might identify the complainant or the witnesses. Because of the publication ban, I will not refer to the complainant or the witnesses by name and I will describe locations in general terms.
[13] No inference may be drawn from the use of these devices. They are employed to ensure the safety and comfort of potentially vulnerable witnesses. They must not be used in assessing credibility anymore than the fact that the accused remained in custody and had been denied bail.
Background and the incidents giving rise to the charges
[14] I propose to first outline the sequence of events and the issues arising from those events. Although there are 12 counts on the indictment, there are really three principle incidents and certain sequalae.
[15] As I mentioned earlier, the accused has already spent considerable time in jail. This is apparent from his evidence and from the two convictions resulting in the probation orders he is accused of breaching. In February of 2019 he was convicted in this court of one count of sexual assault and two weeks later he was convicted for an outstanding youth court matter. In both cases he was sentenced to time served. By that time, he had been in pre-sentence custody or “dead time” for 2.5 years.
[16] This is significant only because his release from prison took place in February of 2019 just four months before the events in question. In March of 2019, he began a relationship with the complainant in this matter. This was apparently the rekindling of a relationship that had occurred some years earlier.
[17] The complainant is a single mother with a preschool child. She lived in a subsidised housing development and she had custody of her child following some previous involvement with the Children’s Aid Society. All of the witnesses described the complainant as a good mother who cares deeply about her child.
[18] During the period in question, the accused had not yet established a permanent address. He was “couch surfing” with friends and while the complainant and he were not formally co-habiting, he was spending considerable time at her residence. Both the complainant and the accused agree that the relationship was tumultuous. They each described it as a “boyfriend / girlfriend” relationship but there were various breakups or threatened breakups and each of them may have had other romantic interests which are not relevant to this decision but which contributed to some jealousy and friction.
[19] The complainant has a network of friends, two of whom were witnesses at the trial. It is safe to say that these two friends did not approve of the relationship with the accused. They believed he was abusive and controlling and they believed he had a history of sexual impropriety. One of her friends sent the complainant a text in which she professed to believe that the accused might be a danger to the child. The friends at various times encouraged the complainant to break up with the accused, a fact he was aware of. The accused described their relationship on more than one occasion as like “Romeo and Juliet” because of this and because he said his friends did not like her either.
The First Incident
[20] The first incident occurred on May 13th, 2019. The day before, the accused and the complainant had argued. He spent the night elsewhere and returned in the early morning at the invitation of the complainant. There is a significant difference in the evidence about what happened next but there is no doubt there was a further argument and eventually the accused left the townhouse. He had an appointment with his probation officer in any event.
[21] The complainant alleges that after she told the accused, he could come back to the house, on the morning in question, he continued to be rude and disagreeable. The accused apparently ate and showered. Then the complainant says he came upstairs to the bedroom and told her they were going to have sex. According to the complainant, when she declined, the accused told her there was no one there and there was nothing she could do about it. In her version of events, the accused then pinned her with his legs while she was seated on the bed, touched her pubic area over her clothes and tried to reach under her clothes despite her protestations. The complainant testified that she eventually pushed the accused away and angry words were exchanged. According to the complainant the accused insulted her and called her names. This incident ultimately was the basis for count 1 – the charge of sexual assault contrary to s. 271 of the Code.
[22] According to the complainant, she then asked the accused to leave her residence and told the accused she was going to report the matter to the police. At that point the complainant states the accused became angry and violent, pushing her against a door and uttering threats. Allegedly, the accused told her not to forget that he knew where her daughter went to daycare and he would kill them both if he went to jail for this. This incident ultimately formed the basis for counts 2, 3 & 4 – that is a charge of assault contrary to s. 266, a charge of threatening death to the child contrary to s. 264.1 (2) and a charge of intimidating by threats contrary to s. 423 (1) (b) of the Code.
[23] Count 5 which is a breach of probation charge follows from these other charges because on May 13th, 2019 the accused was bound by a probation order requiring him to keep the peace and be of good behaviour. Consequently, commission of any of these offences would be a breach of probation contrary to s. 733.1 (1) of the Code.
[24] The accused testified that none of this occurred. He asserts that the complainant made up these allegations because she was going to break up with him and wanted to get rid of him. He denies that there was an assault, a sexual assault or any threats.
[25] On the morning of May 13th, the complainant called her brother B.L. at 9:53 a.m. when she apparently told B.L. she was going to break up with the accused. There was another call at 12:55 p.m. In that second call, the complainant told her brother she had been sexually assaulted and threatened. B.L. called the police. The police arrived at the complainant’s residence just before 2:00 p.m. at which time the complainant told the police the version of events set out above and gave a written statement. The accused was not present. No charges were laid at that time, but a file was opened and assigned to Detective Mallon.
[26] The following day, May 14th, 2019, the accused and the complainant reconciled. The complainant called Detective Mallon and advised her that she did not want to press charges, had forgiven the accused and they were going to try to make their relationship work. Although the accused describes this as “recanting”, it is the complainant’s evidence and that of Detective Mallon that the complainant told the police the events transpired as she had described in her statement but she told the detective she did not want to go to court.
[27] The complainant has never “recanted” in the sense of saying the events did not occur. She did tell the detective she did not want to proceed with charges. According to the complainant, the accused was with her when she made this call and when she had the discussion with Detective Mallon.
The Second Incident
[28] The second incident involves a fistfight that took place on June 9th, 2019 between the accused and another young man, B.G. On that date the complainant’s two girlfriends went to her residence to meet with her and to talk about the relationship between her and the accused. They also wanted to patch up some friction that had arisen between them over this issue. According to their evidence, they had not expected the accused to be present but he was.
[29] I will refer to the women, as witness #1 and witness #2. They were accompanied by witness #1’s boyfriend, B.G. B.G. did not know the accused and his only reason for being there was because he was with his girlfriend, witness # 1.
[30] When the friends arrived, the accused was in the living room with another young woman, J., who was a friend of the complainant and a friend of the accused. I pause to note that during the trial, the accused requested this person be subpoenaed but after she was located by telephone, he elected not to call her. In any event, the accused and his friend J. were downstairs in the living room and the complainant and her two friends went upstairs to her bedroom. B.G. was asked to wait outside the bedroom and was standing on the landing at the top of the stairs.
[31] There is considerable dispute about what happened next but there is no dispute that at some point the accused took off his glasses and came up the stairs shirtless. The witnesses allege the accused was carrying a hammer although the accused denies this. Both the accused and B.G. agree that the accused asked B.G. if they were going to have a problem and upon being told “no”, the accused then advanced towards the bedroom door which at this point had been opened.
[32] Both B.G. and the accused agree that the accused punched B.G. three or four times in the face causing his nose to bleed and swelling below his eye. The two men then got into a fight which ended when B.G. was able to get the accused in some kind of knee lock. The only question is whether there was some justification for the accused punching B.G. The accused testified that B.G. threw the first punch and argues that it was a consensual fight. I must also consider whether self defence would apply.
[33] It is B.G.’s evidence that he was intent on disarming the accused and not on warding off blows, that he managed to throw the hammer away and then wrestled the accused into submission. During these events, the accused was thrown onto the bed, the bed was broken and ultimately the accused was thrown onto the floor. It appears that B.G. ultimately managed to get the accused into a knee lock of some kind and at that point the fight ended.
[34] The accused testified that B.G. tried to punch him, that the accused was not carrying a hammer, that he never saw a hammer but he now believes B.G. may have been carrying a hammer. He acknowledges punching B.G. in the face and then fighting with him. He believes he was winning the fight and was beating B.G. but was distracted when witness #2 said she was calling the police.
[35] Eventually the police were called. Witness #2 ran outside and subsequently B.G. and witnesses # 1 went outside to wait for the police. They took the hammer with them and left it on the lawn. Subsequently the police arrived, took statements and then charged the accused with assault. The accused was ultimately released at the scene on a Promise to Appear and was allowed to return to the complainant’s residence. Despite this incident, the accused and the complainant remained in a relationship until the third incident.
[36] It is notable that at the time no one suggested to the police that the hammer had actually been used as a weapon. The police did not consider the hammer to be significant. They did not lay any weapons charges. The hammer loomed large at the trial but that is only because of the conflicting evidence. It is relevant to the assessment of credibility. The police did not seize the hammer as evidence or take it from the scene.
[37] The second incident resulted in count 6 which is a charge of assault on B.G. contrary to s. 266 of the Code. It also resulted in count 7 which is another charge of breaching probation contrary to s. 733.1 (1) of the Code.
The Third Incident
[38] Shortly after the second incident, on June 11th, 2019, the friends of the complainant took her to the mall. The complainant had apparently informed her friends that she was going to break up with the accused but was worried how he would react. While at the mall, with witnesses #1, #2 and #3, the complainant apparently texted the accused to tell him the relationship was over and he should collect his stuff from her residence. According to the evidence of the witnesses, the accused called the complainant and they were able to hear him because the complainant put him on the speaker phone. The witnesses say that the accused told the complainant he would kill her if she broke up with him. He also threatened her child. The accused denies that there were any such threats.
[39] It appears that after leaving the mall, a safety plan was made. The complainant’s daughter was sent to the complainant’s brother, B. L., who drove to her residence to pick up the child. The complainant and her friends went to her residence some by car and some by bus and then the child was put into the care of B.L. While at the residence, it is alleged by the complainant and the witnesses that the accused called and made additional threats. The police were called and took statements.
[40] This incident ultimately resulted in counts 8 and 9. Count 8 is another charge of threatening contrary to s. 264.1 (2) and count 9 is another breach of probation contrary to s. 733.1 of the Code.
The phone call, the arrest warrant and the flight to Huntsville
[41] On June 14th, 2019 Detective Mallon decided she had grounds to arrest the accused for incident number one and three and she was aware of the assault charge. The detective contacted the accused by telephone to suggest that he surrender voluntarily. In the alternative, she advised there would be a warrant for his arrest.
[42] In that telephone call, the accused protested that he should not be arrested and if he turned himself in, he knew they would put him in jail like the last time. The accused advised that he had no interest in going back to jail for something he had not done. He demanded that the police obtain an “extraction report” to show texts and calls between the complainant and his phone. Ultimately, he refused to turn himself in and responded with “this phones going to be broken and good luck finding me”. He advised the detective he was a “master AWOL-er”. He then destroyed his cell phone and attempted to vanish.
[43] The following day, June 15th, 2019 he was found in Huntsville behind the wheel of a stolen pickup truck. That truck had disappeared from a home in Ottawa overnight and had been reported stolen on the morning of June 15th. Unfortunately for the accused, the truck also had a tracking device and a tracking “app” so that the owner was able to track the truck on his cell phone and advise the police where the truck appeared to be.
[44] No one saw the accused take the vehicle but there is no explanation for how it came into his possession and he and the stolen truck were found together on the other side of the province the day after he told Detective Mallon she would not be able to find him. The Crown argues it is a reasonable inference that the accused stole the vehicle and fled Ottawa. This is the basis for count 10 which is a charge of theft of a motor vehicle contrary to s. 333.1 of the Code.
[45] A complicating factor is that upon his arrest in Huntsville, the accused was charged with possession of stolen property and breach of probation. He was represented by duty counsel. On June 19th, 2019 he pleaded guilty before Justice Wadilove in the Ontario Court of Justice and was sentenced to 23 days in jail.
[46] He served that sentence in the provincial correctional facility in Penetanguishene. Upon his release, he was arrested by Ottawa police and brought back to Ottawa to face the current charges.
The Letter to the Complainant
[47] While incarcerated on the possession charge, the accused wrote a letter to the complainant. Most of the letter contains his observations on their relationship and what went wrong and he speaks about how difficult it is to be in prison. The letter then discusses “recanting”. The accused tells the complainant that she can either tell the police she was lying about the incident or she can simply tell them she does not wish to proceed with charges. The advice in the letter about recanting is almost identical to the conversation the complaint had with Detective Mallon on May 14th, 2019.
[48] This letter gave rise to count 11 which is a charge of attempting to obstruct, pervert, or defeat the course of justice, contrary to Section 139 (2) of the Code.
[49] Count 12 is a further charge of breaching probation but this charge relates to breach of the youth probation order which has the same term as the adult probation order. That is to “keep the peace and be of good behaviour”. Evidently, if the accused committed any of the offences described above, while subject to two probation orders, he would be guilty of breach.
Analysis
[50] I propose now to deal with each of the substantive charges. I will leave the breach of probation charges until the end. All counts on the indictment were dealt with in a single trial and when it comes to assessing credibility, that assessment will be made based on all of the evidence. It is still necessary to deal with each charge separately. The accused is entitled to the benefit of the doubt on each charge. I must be open to the possibility that a witness is truthful about one set of circumstances and not about another or simply that there is sufficient evidence to sustain a conviction on one of the charges but not others.
[51] I will deal first with the theft and obstruction charges and then turn to the charges which turn largely on credibility.
Count 10 – Theft of a Motor Vehicle
[52] As a factual matter, there can be very little doubt that the accused is the person who stole the motor vehicle he was found in possession of in Huntsville. It is true there is no direct evidence of theft. No one saw the accused taking the vehicle but there is no other logical explanation and given the passage of time between the disappearance of the vehicle and its appearance in Huntsville the inference in not only permissible, it is overwhelming.
[53] I note that the accused asked the owner of the vehicle several questions about leaving the keys in the vehicle and leaving it unlocked. The owner did not believe he left the vehicle unlocked but admitted he kept a spare set of keys in the vehicle. Of course, this is irrelevant. Even if the owner had left the vehicle unlocked with the engine running, it would still be theft to take a vehicle that belongs to someone else without colour of right.
[54] The accused, however, raises his conviction in Huntsville as a defence. He argues that charging him with theft based on the same facts which formed the basis of his conviction and sentencing is a form of “double jeopardy” and should not be allowed. Double jeopardy is not the correct concept but I agree there is a fundamental unfairness to be charged twice on the same set of facts.
[55] The legal issue is whether or not it is appropriate to proceed with a charge of theft in Ottawa when the accused has already been sentenced for possession of stolen property and served a sentence. The Crown concedes that by application of the [Kienapple][^2] principle, the only appropriate disposition following a finding of guilt would be to stay this charge but asks that a conviction be recorded.
[56] In this case, I agree with the accused. Had he been charged with both theft and possession of stolen property on the same indictment, I would have had no hesitation in convicting him of theft on the basis of the overwhelming inference that being in possession of the vehicle on the day after it was stolen, he was the thief. As discussed in [Kienapple][^2], it would be inappropriate to convict of both theft and possession for the same act. This matter is also discussed in [R. v. Cook][^3]. In some cases where a thief has stolen a vehicle and then remains in possession for a considerable period of time or where there is a break in possession and the thief then retakes possession, conviction of both theft and possession is appropriate.
[57] That is not the case here. In Huntsville, he was put on trial for possession of the vehicle although it was stolen the day before that when the accused was still in Ottawa. Presumably choices were made, and discretion was exercised by the Crown. From the record, it appears it was decided to proceed by summary conviction and to charge the accused only with possession of stolen property. To permit the Crown in Ottawa to subsequently proceed with a charge of theft even if the Crown seeks no additional penalty, is fundamentally unfair and violates the principle of res judicata discussed by Laskin J. in [Kienapple][^2] at pp. 747 and 748.
[58] A distinction can be drawn between a case in which all of the facts are known and one in which the facts change or additional facts are discovered which justifies a more serious charge. In [Kienapple][^2], the example is given of an accused charged with assault in which the victim subsequently dies. The conviction for assault would not prevent a subsequent charge for manslaughter or murder because the fact of the death did not exist and could not be known at the time of the original proceeding. It is significantly different when all of the facts were available and nothing has changed.
[59] The principle of res judicata applies to prevent a matter that was litigated or could have been litigated from being litigated a second time. Having elected to proceed with a charge of possession of stolen property and the accused having been sentenced and having served that sentence, it is fundamentally unfair to later lay a second charge for a different crime based on the same facts.
[60] All of the facts that are now available were available or could have been available at the time of the first trial. The OPP in Bracebridge and the Crown in Huntsville were very well aware of who owned the truck and the fact that it had been stolen in Ottawa and tracked to Huntsville before the accused was arrested behind the wheel. In my view the Crown is estopped from proceeding with a different charge on the same facts. Accordingly, I am staying the charge of theft of a motor vehicle and I will not enter a conviction.
Count 11 – Perversion of the Course of Justice
[61] The question in relation to the letter is whether the Crown has proven the elements of this offence. It is an offence to willfully attempt to obstruct, pervert or defeat the course of justice in any manner. This includes, but is not limited to, dissuading or attempting to dissuade a witness from giving evidence by “threats, bribes, or other corrupt means”.
[62] The letter was clearly written at least in part in the hopes that the complainant would recant her testimony or at least tell the police she did not wish to proceed with charges. This is almost identical to the position taken by the complainant in May of 2019 when she phoned Detective Mallon and it is also consistent with her evidence that this is precisely what the accused had asked her to do in May when she made that phone call after they had made up.
[63] It is a manipulative letter filled with professions of love and describing how sad and desperate the accused was while in jail. It is notable that it does not contain any profession of innocence. There is no doubt the letter was written in hope that the complainant would either change her testimony or seek to withdraw the charges. The letter does not contain any threats or offers of bribes. While subsection 139 (3) of the Code which contains the words, “threats, bribes or other corrupt means” is not exhaustive, nevertheless it is clear that simply attempting by reasoned argument to persuade a witness to tell the truth is not an offence. See [R. v. Pare][^4].
[64] This is a mens rea offence in which the Crown must prove the intent to defeat the course of justice. I accept that encouraging a witness to lie even without threats, bribes or coercion can constitute intentionally attempting in any manner to pervert the course of justice within the wording of s. 139 (2) of the Code but here the letter suggests either recanting or simply telling the police the complainant did not wish to proceed. I have some doubt that on this wording, there is a clear intention to obstruct the course of justice and the letter itself is the only evidence of intent.
[65] There will be a finding of not guilty on count 11.
Incidents 1, 2 & 3 and the Credibility Assessment
[66] The charges arising from incidents 1, 2 & 3 turn almost entirely on credibility because for most of the charges, there is little to no forensic evidence. Numerous police officers testified but for the most part they were officers who attended at the scene and took statements. This is not a case involving fingerprints or DNA. The investigation of each event largely took the form of taking statements, checking for inconsistencies or signs of fabrication and deciding if there was sufficient evidence to lay charges.
[67] For the most part, the statements made to the police at the time of the incidents are of limited evidentiary weight. As hearsay, they cannot be used to prove what occurred but where the accused seeks to impeach the credibility of the witness, it is relevant if the statement given at the time is consistent or inconsistent with the evidence given at trial. See [R. v. Stirling][^5] and [R. v. Fair][^6]. Such evidence may also be admitted as part of the narrative. Statements given to the police may also be used to refresh memory but in that case they are not themselves evidence. [^7]
[68] It is worth noting that when people talk about credibility they are often conflating two different questions. The first of these is whether the witness is truthful. That is the witness is honestly answering the questions put to him or her and doing his or her best to be accurate.
[69] The second question is whether the evidence is accurate. Even an honest witness may be mistaken. Human memory suffers from many frailties and studies on eye witness testimony have convincingly demonstrated that repeatedly recounting an event or answering questions about it may in some cases alter memories. Add to that the difficulty of accurately observing events during times of stress or trauma or while involved in a quickly unfolding physical situation and it is apparent that subjective recollection may not always be precise or correct. For that reason, it is always helpful to have objective evidence or to be able to compare the evidence of more than one witness. Such evidence is not always available and it is open to the court to accept the evidence of one witness and reject the evidence of another despite the absence of clearly identifiable flaws in the evidence which is rejected.
[70] Because the accused testified, the applicable paradigm is that set out in the case of [R. v. W. (D.)][^8]. It is not necessary to parrot the W.D. formula. The point is that the burden of proof in criminal matters always remains on the Crown and a criminal trial is not just a contest between two versions of the truth. If the evidence of the accused – that he did not commit the crimes in question – is sufficiently credible that I am convinced he is telling the truth or at least sufficiently credible as to leave me with a reasonable doubt, he is to be acquitted. But even if his evidence is not believed, the court must still consider the evidence against him carefully and scrupulously. The Crown must prove each element of each charge and if the evidence against the accused is insufficient, he must be acquitted.
[71] This does not mean that evidence is evaluated like a scientific formula. Although a criminal trial is not a simple contest of credibility between a complainant and an accused, the court is permitted and even required to consider the evidence in context. Truth is not a binary choice because it is possible that neither description of events is accurate but it is certainly open to the court to accept one version of events over another when both cannot be true. [^9]
[72] I listened and observed the testimony carefully. I looked for indicia of credibility. I compared the version of events described by each witness and considered what little objective evidence there is. In general, I believe the evidence of the complainant and the other witnesses for the Crown and I do not believe the accused.
[73] The complainant has been consistent in her description of events throughout the proceeding. She gave an oral statement to the police and then a written statement. She has been interviewed. She testified at a preliminary inquiry and at trial. She has never wavered and she has never given anyone a reason to think that she is making up the events. She has never recanted or attempted to recant even when she decided she did not want to go to court and did not wish to press charges.
[74] In assessing the credibility of the accused, I had the benefit of his testimony at the trial but also of his conduct throughout the trial and his previous criminal record which I am entitled to consider. His history shows a consistent and disturbing disrespect for legal boundaries and norms. Throughout this trial he demonstrated that he can be intelligent, resourceful, articulate and respectful. Unfortunately, as the evidence demonstrated, and as he himself put it when questioning Detective Mallon, he can be a self described “smartass” and can also be evasive, cunning, defensive and aggressive. His comment to Detective Mallon that she would not be able to find him and his flight from the jurisdiction, while not probative, are as consistent with a consciousness of guilt as they are with a person fearful of being wrongfully convicted. [^10]
[75] I make these general remarks to avoid repeating them in relation to each of the remaining offences. My overall assessment of credibility informs the specific findings on each of the offences but as I discussed earlier, truthfulness does not always equate with accuracy. The Crown must prove its case.
The Second Incident – Assault
[76] I propose now to consider the second incident and the charge of assault. As noted above, there is no doubt that the accused punched B.G. and caused his nose to bleed. The evidence of both B.G. and the accused as well as the photographic evidence and the statements given to the police show that several blows were struck.
[77] B.G. described being struck three or four times in the face by the accused. There is no doubt that the accused removed his glasses and came up the stairs because he did not like what he was hearing. There is no doubt that he punched B.G. repeatedly in the face and drew blood. In fact, the accused on more than one occasion subsequently described this as him “beating up a military guy”. He agreed with the Crown that in his description of events, he was beating up B.G.
[78] Three of the witnesses said that the accused came up the stairs with a hammer in his hand. The presence or absence of the hammer is not material to the offence as charged because the accused was not charged with a weapons offence. It is however a marker for accuracy.
[79] At trial, at least two of the witnesses described the hammer as “the weapon”. This suggests at the very least they had discussed the matter with each other. At trial the complainant stated that the accused tried to hit witness # 1 with the hammer and advanced upon her before B.G. interposed himself. This is the first time anyone suggested that the accused actually attempted to hit anyone with the hammer. It concerns me that the role of the hammer in the narrative seems to have grown over time but I do not find that this undermines the evidence. There was no reason for the accused to have a hammer in his hand when he came up the stairs expecting a confrontation other than as a potential weapon.
[80] B.G. who was involved in the fight certainly viewed the hammer as a threat and as a potential weapon. He testified that given his military training, he viewed it as his first priority to disarm the accused rather than warding off blows to his face. He did not suggest that the accused actually raised the hammer or tried to strike a blow with it. I find B.G.’s evidence to be credible and making allowances for the different view points of the complainant and the other witnesses, their narratives are generally consistent. The inconsistencies between their descriptions of what took place are more suggestive of truth than of a conspiracy to fabricate evidence.
[81] A significant concern raised by Mr. Baum was what to make of a text message sent by B.G. to his girlfriend, witness #1 just before the fight began. At this point the three women were inside the bedroom and B.G. was outside on the landing. The accused was apparently becoming agitated because he could overhear some aspects of what was under discussion. The accused admits that he knew the two friends were trying to convince the complainant to end the relationship. B.G. testified that he could hear the accused speaking to his friend J. and becoming increasingly angry.
[82] At 11:41 pm B.G. texted his girlfriend saying, “let’s go”. When she responded, “what happened?” he answered with two texts as follows:
“He’s listening in and chatting it up with his lady friend downstairs and honestly I want to fuck this kid up if [the daughter] wasn’t here and if I didn’t feel like the guy would pull out a knife.” “I want to leave now out of respect before shit happens.”
[83] One interpretation of that message is that B.G. was spoiling for a fight. On the other hand, he turned the text over to the police when he gave his statement later that night. At trial, he explained the context and his increasing sense of unease at the mounting tension. In his version of events, his text was prophetic because almost immediately afterwards the accused came up the stairs shirtless and carrying a hammer. The accused also confirmed that he had removed his glasses before going upstairs. The accused was expecting a confrontation and this is consistent with the evidence of B.G. and the complainant that the accused knew what was being discussed and was becoming agitated.
[84] I find the evidence of B.G. and of witness #1 and the complainant to be generally credible and consistent. Witness #2 was not of much assistance because she could not see clearly and she hid in the closet. I find that the accused did have a hammer in his hand and did throw the first punch. He was not charged with using the hammer as a weapon and it may have been more of an intimidation tactic.
[85] I do not find the version of events provided by the accused to be accurate or credible. At trial he suggested that B.G. may have been brandishing a hammer. He admitted that he himself did not see a hammer at the time but he said that his friend J. (who was not called as a witness) and the complainant had told him that B.G. had been holding a hammer. Quite apart from the hearsay problem, which means that evidence of what someone else said cannot be used to prove the truth of what was allegedly said, there is no evidence to support that contention. No such statement was made to the police by anyone at the scene. It is completely contrary to the evidence of the complainant at the trial.
[86] I found B.G. to be a credible witness. He answered questions in a forthright manner and admitted when he might have made a mistake. He explained inconsistencies when brought to his attention. His evidence was generally consistent with the complainant’s evidence and with that of witnesses #1 and #2 on all of the material facts.
[87] I also accept the evidence of the complainant and the other witnesses which are generally consistent with each other. Witness #2 may have had a propensity to exaggerate or overreact. She suffers from anxiety. It was she who suggested to the complainant that the accused might sexually abuse the daughter and she believed the accused had seen the text. When the accused came up the stairs, witness # 2 said she was terrified and hid in the closet. As soon as she was able to, she ran out of the house. But her evidence did not have the hallmark of fabrication. She admitted she could not see who threw the first punch.
[88] Witness # 1 is also a believable witness. She may not have perfect recollection of what was certainly an alarming and dramatic incident. Finally, I found the complainant’s own description of events on that particular night to be convincing despite what may be a new embellishment about the hammer.
[89] By contrast, I found the evidence of the accused to be unconvincing. I agree with the Crown that he generally attempted to gratuitously slur the character of the other witnesses without a foundation for doing so. His suggestion that B.G. may have been holding the hammer is baseless. When the Crown challenged his description of the fight with B.G. as something from an action movie, the accused responded that if Mr. Geigen-Miller wanted to describe him as an action hero, that was alright with him. Throughout his testimony, the accused seemed intent on portraying himself as stronger, smarter and more knowledgeable than anyone else.
[90] Ultimately, I believe the complainant and the other witnesses and I do not believe the accused. There is no air of reality to a defence of a consensual fight or of self defence.
[91] There will be a finding of guilt on count 6.
First Incident and the charges of sexual assault, assault and threatening
[92] The critical question in relation to incident number one is whether these events occurred at all. The only two witnesses with direct knowledge of the events are the complainant and the accused. The accused testified that these events never happened, that there was no sexual assault, no assault and no threats. The complainant testified that they did and she described them in detail. There is no room in these circumstances for any misunderstanding or misinterpretation. No defence of belief in consent, for example. There is no forensic or DNA evidence.
[93] One of these witnesses is not telling the truth. If I cannot tell which, or I disbelieve both, then I must acquit the accused but if I believe the complainant and disbelieve the accused, a conviction is appropriate.
[94] There are a few inconsistencies in the evidence of the complainant and these were skilfully explored in cross-examination by Mr. Baum. For example, in her original statement to the police, the complainant stated that the accused was on top of her during the sexual assault. At trial her description was that she was sitting on the bed while the accused stood in front of her with his legs straddling one of hers and he was leaning over her pressing her down so that she was not able to stand up. The complainant denied that this was an inconsistency when challenged. She did not get flustered or upset. She simply indicated that she had not known precisely how to describe what occurred. I accept that evidence.
[95] The accused tried to cast doubt on what occurred because of the timing of the phone calls to her brother and whether or not the complainant was upset. We know that the complainant called her brother at 9:53 a.m. and told him she was breaking up with the accused. She did not mention a sexual assault. When she called at 12:55 p.m., it was the brother’s evidence that while she was not sobbing or hysterical, she did sound like she was hyperventilating and he knew she was upset. We know that she then told him about the sexual assault, the assault and the threats because this is what triggered the call to the police.
[96] As a matter of law, I can not reject the evidence of the complainant because she did not report the sexual assault immediately nor can I reject it because her demeanour does not match a stereotypical idea of how a victim of an incident such as this should act. [^11] This does not mean that these factors can carry no weight at all if, for example, they contradict evidence given by the complainant or are internally inconsistent. But they are not as important as the accused seemed to think they should be. The sequence of events or the manner in which the complainant evidenced distress do not damage her evidence or raise any doubt in my mind. For that matter, it is important to state that whether or not a victim of a crime is upset by it, is not a factor in determining whether the act was criminal.
[97] Sexual assault is a crime that covers a great range of activity including touching over the clothes as is alleged here but also including much more intrusive and violent conduct such as all out rape. The reason the traditional common law definitions of sexual offences were repealed was in recognition of the fact that the essence of the offence is violation of a person’s sexual integrity without their permission. If I find that the accused touched the complainant for a sexual purpose without her permission then the offence is made out. As the Supreme Court has repeatedly stated, the law is that sexual activity of any kind requires active and ongoing consent. No means no and only yes means yes. [^12]
[98] In this case I accept the plaintiff’s evidence that the accused told her he was going to have sex with her with or without her permission, that she told him she did not want to, that he touched her vagina and other parts of her body while preventing her from getting off the bed. He desisted when she pushed him away and resorted to calling her names. The assault may have been fleeting and the accused may have thought better of it, but it was sexual assault nonetheless.
[99] That might very well have been the end of it had the accused not compounded the gravity of the situation by assaulting the complainant and making death threats. On all of the evidence, both of those allegations have the ring of truth and the denial by the accused that anything like this occurred does not.
[100] The accused testified but on this point, he simply denied that the events occurred. He admitted that they quarreled and that words were exchanged. He suggested that the complainant hit him and pushed him and that he may have pushed her back.
[101] In cross-examining his probation officer, the accused attempted to get an admission that he must have left the complainant’s townhouse no later than 9:00 a.m. He was unable to get that admission and he himself did not give evidence about when he left. Even if he did leave at 9:00 a.m., however, it does not follow that a phone call from the complainant at 9:53 and another later in the morning is inconsistent with her evidence. Nothing about the timing of those calls demonstrates that the complainant could not be telling the truth. The events could well have taken place before the first phone call.
[102] On the evidence, I find that after he halted the sexual assault, the accused committed assault by pushing the complainant against the bathroom door. Then, in an attempt to intimidate her, he threatened harm to her and to her child. There will be a finding of guilt on counts 1, 2 and 3.
The Third Incident – the threats on June 11th
[103] In this case I had the evidence of the complainant, and witnesses 1, 2, and 3. I did not hear any evidence from J. who was also apparently present at the mall but was not called as a witness.
[104] There was some difference in the evidence given by each witness as to precisely what threats were made at the mall and what threats were made once the complainant had returned to her residence. One of the witnesses testified that she saw the accused in the house next door at the time that she heard the threats over the phone. I find that far fetched and fanciful but it is not an element of the offence as charged.
[105] The accused is guilty of the offence if I find that he phoned the complainant and made threats to harm her either when she was at the mall or when she was at home or both. I accept the evidence of the complainant. It is materially corroborated by the other witnesses. The threats made over the phone were similar or identical to the threats made during incident number 1.
[106] There is a ring of truth to this. The accused demonstrated a number of instances where he engaged in similar or identical behaviour on more than one occasion. He also demonstrated a propensity to use the same phrases or words which he recited like a formula.
[107] There will be a finding of guilt on count 8.
Breach of Probation
[108] It follows from these findings that at the time of all three incidents, the accused was also guilty of breaching the terms of his probation orders. It does not matter how many orders there were, there should not be multiple charges.
[109] There will be a finding of guilt on count 5, count 7, and count 9. There has already been a finding of breach in connection with the Huntsville charges. I will stay count no. 12.
Conclusion
[110] In conclusion, for the reasons given above, I find the accused guilty on counts 1, 2, 3, 4, 5, 6, 7, 8 and 9. Count 10 is stayed. There will be a finding of not guilty on count 11. Count 12 is stayed.
[111] It remains to determine whether there should be further conditional stays on any of these charges by application of the [Kienapple][^2] principle. For example, counts 3 and 4 arise from the same event and involve threats to harm the child. I will hear further submissions on this point.
Mr. Justice C. MacLeod Date: March 13, 2020