Court File and Parties
COURT FILE NO.: 18-70000595 DATE: 20200513 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – J.F. Accused
Counsel: Monica Gharabaway, for the Crown Tobias Okada-Phillips, for the Accused
HEARD: December 2, December 5, December 6, December 9-11, December 13, December 16-17, December 19-20, 2019 and February 6-7, February 11-12, 2020
B.A. Allen J.
Publication Restriction Notice
An Order restricting publication in this proceeding was made pursuant to section 517(1) of the Criminal Code. These Reasons for Decision shall not therefore be published in any document or broadcast or transmitted in any way before either (i) the accused is discharged following a preliminary inquiry; or (ii) the end of the accused’s trial.
Reasons for Judgment
Admissibility Applications
[1] The accused, JF, was tried before me on charges arising from offences he committed against the complainant, AB on January 18, 2018. He stands charged on nine counts: count 1, sexual assault; count 2, unlawful confinement; count 3, choking; count 4, assault with weapon (bottle); count 5, assault causing bodily harm; count 6, assault with weapon (belt); count 7, assault; count 8, assault; and count 9, robbery.
[2] Three admissibility hearings were conducted during the course of the trial.
[3] The complainant never appeared at trial despite a subpoena and a material witness warrant being issued and the police’s efforts to locate AB for trial. The first admissibility hearing required a determination of whether AB’s testimony at the preliminary inquiry given on October 15 and 16, 2019 is admissible at trial. The Crown brought a Criminal Code, s. 715 Khelawon application requesting an order that AB’s preliminary inquiry testimony be admitted at trial as a prior sworn statement: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.).
[4] The defence took the position they did not have a full opportunity to cross-examine AB at the preliminary inquiry and challenged the testimony as impermissible, unreliable hearsay. I allowed the application in R. v. J.F., 2020 ONSC 927 (Ont. S.C.J.).
[5] The Crown called Michelle Bobala, the sexual assault nurse who examined AB at Sunnybrook Hospital in relation to AB’s allegations of assault and sexual assault. During her testimony she mentioned a physician, Dr. Lee, who had examined and interviewed AB in the emergency unit at Sunnybrook. The defence questioned whether the complete records of Dr. Lee and others had been disclosed. It appeared not. The Crown issued a subpoena for production of any further records that had not already been disclosed. Some new hospital records were subsequently disclosed.
[6] The defence then brought an application to renew their application under s. 715 of the Criminal Code to exclude AB’s preliminary inquiry testimony submitting that they did not have a full opportunity to cross-examine AB on the new evidence. I denied the application in [R. v. JF, 2020 ONSC 932 (Ont. S.C.J.)].
[7] A question emerged during JF’s trial evidence about AB’s relationship with AB and her knowledge about being pregnant. I conducted a hearing under s. 276 of the Criminal Code into whether evidence about the pregnancy should be excluded as being in breach of the prohibition against adducing evidence on a complainant’s prior sexual conduct: [R. v. J.F. 2020 ONSC 928]. I admitted the evidence as not being in violation of the “twin myths” doctrine: R. v. Barton, 2019 SCC 33 (S.C.C.).
The Trial
The Witnesses
[8] The crux of the Crown’s case lies in AB’s evidence in the transcripts of her testimony on October 15 and 16, 2019.
[9] The Crown relied on AB’s evidence from the preliminary inquiry and also called the sex assault nurse, a number of police officers involved in the investigation of AB’s allegations, a DNA expert and the superintendent of the apartment where the alleged attack occurred. A defence was called. The defence called JF, two police officers, JF’s mother, IH, and JF’s ex-spouse, TH.
[10] The defence filed strings of Facebook and Snapchat messages between AB and TH and TH and JF as evidence on the s. 276 application. The parties agreed that the messages could be admitted at trial for the purpose of questioning trial witnesses: [R. v. Sadikov, 2014 CarswellOnt 752, at para. 30, (Ont. C.A.)].
The Crown’s Case
AB’s Evidence
[11] The offences arose from an incident that occurred in apartment 40, 814 Broadview Avenue in Toronto (“the apartment”). AB alleged that she was alone at the apartment at around 5:30 – 6:00 a.m. when JF entered uninvited. She testified at the preliminary inquiry that she had been living at the apartment for about two weeks before January 18, 2018.
[12] According to AB’s preliminary inquiry testimony, JF accused her of stealing from him. When she attempted to answer the accusation, JF engaged in a barrage of physical attacks striking her in the mouth, biting her on the lip and beating her all over her body. She testified he hit her in the head with a bottle in the bedroom, breaking it, and also choked her with a belt and kicked her in the ribs.
[13] According to AB, the attacks took place over six to seven hours. She said she was bleeding from the attacks. JF also forced AB into the bathroom ordering her to take off her clothes she said to wash the blood from her body. She said he was on top of her and he proceeded to sexually assault her. She stated that she did not know whether he ejaculated or wore a condom and threatened to kill her. He took her cellphone and flushed her keys down the toilet. She also testified he pulled a clump of her hair from her head and struck her head on the side of the bathtub and the back of the toilet. AB also stated that JF told her she could not leave the apartment. She said she was afraid of JF.
[14] AB testified that the beatings and sexual assault ended when the building superintendent and two contractors knocked on the apartment door to inspect for a leak in the bathroom. AB alleges JF asked her to answer the door and pretend like nothing was wrong while he hid in a closet. After the men entered, JF jumped out of the closet and put AB in a bear hug. AB managed to escape JF’s hold.
[15] AB testified about the nature of her relationship with JF. Her evidence is that she knew JF for about three months, from about October 2017, before the incident. She said they had a “casual” relationship and dated him only three or four times. AB’s evidence is that she was living with her boyfriend JMcA in the apartment and that JF did not live at the apartment but came by now and then.
[16] AB was taken to Sunnybrook Hospital emergency unit where her injuries were treated and various evidence swabs from her body were taken and a Sexual Assault Evidence Kit (“a SAEK”) completed.
[17] AB has never provided a formal statement to the police. AB claimed because she fears JF she did not want to go to the police.
Evidence of Ranga Morlin, Apartment Superintendent
[18] Mr. Morlin attended the apartment on January 18, 2018 at about 1:30 p.m. to investigate a leak in the bathroom. He testified that the tenant of the apartment was a male named J whom he had never met. He testified that a week before the incident he saw a female at the apartment he thought was a guest of the tenant. On January 18th he did not hear anything but a rustling sound when he reached the apartment door. AB told him to wait and it was about two or three minutes before she opened the door.
[19] Mr. Morlin said he observed a goose egg on AB’s forehead and a bruised lip and called the police. He did not see those injuries when he saw her during the previous week. He said she seemed upset, sullen and timid and was whimpering. He did not interact with her. Mr. Morlin testified that while he was in the apartment a male ran out of the closet and gave AB a bear hug from behind. Mr. Morlin asked the male to let her go and when he did not do so, Mr. Morlin called 911.
[20] Mr. Morlin testified he did not see any blood in the bathroom, clumps of hair or any broken glass in the apartment. The male left the floor. Mr. Morlin then took AB to the property management office to wait for the police to arrive.
[21] The Crown reviewed with Mr. Morlin the video surveillance recording in the hall outside the apartment. He agreed it shows himself waiting outside the apartment door for two minutes. It shows AB rushing by him and the male running down the hall.
[22] On cross-examination, Mr. Morlin testified he reviewed the video surveillance recorded between 6:00 a.m. and 7:00 a.m. on January 18, 2018. He testified he did not see anyone enter the apartment between 5:00 a.m. to 6:00 a.m. But he said he observed shoes outside the apartment at 7:00 a.m. But he saw no one enter the unit between 5:00 a.m. and 7:00 a.m. He saw no one on the recording leave those shoes so he found that to be a mystery and perhaps a fault in the recording system.
The Police Officers’ Evidence
[23] Aspects of the basic allegations AB made at the hospital are found in the notes and observations of the officers called by both the Crown and the defence who attended the scene and the hospital.
[24] Officers James Katschilo, Katerzina Witt, James Fardel and Melinda Soper saw AB at varying times on January 18th after the incident. They each observed a large goose egg on AB’s forehead and a bloody lip. Some officers thought the blood was fresh and others thought it was dry. Officer Witt noted that AB was speaking quickly in bursts. The officers noted that AB told them that JF forced her to get into the bathtub, take off her clothes and take a shower. Each of the officers noted AB was upset and reluctant to talk when asked whether she was sexually assaulted. Officer Witt testified that because there were males around, she whispered to AB asking whether she had been sexually assaulted and the officer said AB nodded “no.”
[25] Officer Johnathon Blair arrived at the apartment on January 19th to take photos of the apartment. The photos of the bathroom show clothing and socks on the floor and in the bathtub. There were clothes strewn around the bedroom as well. Officer Penwell arrived at Sunnybrook on January 19th and obtained the SAEK kit prepared by Dr. Bobala. On April 20th, Officer Susan Bingham attended the detention centre where JF was in custody to collect a DNA specimen from him pursuant to a DNA warrant. The police requested AB give a police statement and have photos taken of her injuries. AB indicated she was too tired to do either. They asked her to attend the police station the next day. AB never did provide a statement or get photos taken.
Nurse Michelle Bobala’s Evidence
[26] Ms. Bobala arrived at Sunnybrook 10:45 p.m. on January 18th and departed at 4:10 a.m. She brought to trial the notes she made and the forensic file she completed during her examination of AB. She testified she had been told by the emergency physician, Dr. Lee, that AB had been physically assaulted. Ms. Bobala’s notes were compiled from what Dr. Lee and AB told her.
[27] The nurse indicated AB had received pain medication and that AB was in and out of consciousness during the examination. The examination procedure took several hours. Ms. Bobala indicated AB did not want to give a direct account of what had happened because she said she was very tired and in pain.
[28] Ms. Bobala testified that AB responded to all the questions on the Sexual Assault Documentation form in the SAEK kit and the Strangulation Assessment form.
[29] The nurse could not recall if Dr. Lee or AB told her AB was strangled. On the strangulation allegation Ms. Bobala noted that AB reported that JF strangled her with his two hands on her neck with a 10/10 grip strength. She reported that JF also put his knee on her chest and that he did this three or four times. There is no note that JF put a belt around AB’s neck and Ms. Bobala conceded that if AB had said that she would have noted it.
[30] A forensic physical examination involves taking swabs of forensic evidence from a patient’s body. Various forensic forms are completed as the examination is conducted. Ms. Bobala testified AB said she was too tired and in pain to go through the “head to toe” examination. The nurse did however observe a number of scrapes and bruises on AB’s legs, neck and arms. There was some swelling on her face and neck. AB reported that JF bit her on her ear. She testified AB declined to have an internal vaginal examination completed with a speculum. The nurse testified she would normally take photos of a patient’s injuries. Similar to the police evidence, she said AB declined photos because she was too tired.
[31] The nurse testified and noted that AB said JF forced her to take a shower. On an external examination, Ms. Bobala observed and noted a red abrasion on AB’s clitoris hood. External swab of the external vaginal area and a swab of the internal vaginal area were taken. Skin swabs were also done of AB’s lips, mouth, face, inner cheeks and breasts.
[32] Ms. Bobala testified that AB did not have recall of vaginal penetration because AB said she lost consciousness during JF’s attacks. On cross-examination, Ms. Bobala conceded AB likely said she did not know whether there was vaginal penetration.
[33] Ms. Bobala’s notes also indicate that AB learned she was pregnant in the emergency department that day. She did not recall whether AB, an emergency nurse or Dr. Lee told her that.
Crown DNA Expert Diane Polley’s Evidence
[34] The defence did not challenge Ms. Polley’s expertise in DNA forensic analysis. Ms. Polley prepared two reports, one dated April 13, 2018 and the other, May 13, 2018. In addition to the two reports, Ms. Polley had before her notes, case file documentation and DNA analysis notes. The materials from AB’s examination included an oral swab, a vaginal swab, a skin swab and an external genitalia swab. No bodily fluids from AB were collected. Testing was directed to determining the presence of male DNA and to doing a profile on any foreign DNA located.
[35] The April 13th report revealed that there was insufficient DNA to determine whether male DNA was present or not on some of the areas that were swabbed. Ms. Polley testified that foreign DNA that might have been present could have been lost depending on: (a) the time lapse between the deposit of the foreign cellular material and the time of the collection of the material; and (b) friction from clothing against the body or the washing of the skin. Ms. Polley also explained that material from a subject body can overshadow the foreign material.
[36] There was none or insufficient male DNA found on the swab of the external genitalia, on the swab of the vagina and some of the skin swabs. There was sufficient DNA on the skin swab of the face, left ear and the breasts. The male DNA was mixed with AB’s DNA.
[37] The May 13th report contained an analysis of a sample of JF’s DNA. Ms. Polley explained that JF could not be excluded as a donor of the male DNA on the face, left ear and breasts. She found it was more than one trillion times more likely to be AB’s and JF’s DNA than an unrelated person. Ms. Polley explained for a deposit of foreign DNA to remain on the subject body over an extended period such as six hours the DNA would not have been deposited by a mere touch. There would have been a greater level of activity or friction.
[38] In response to questions on cross-examination, Ms. Polley agreed that her testing could not determine how or when DNA was deposited. She could only say a deposit would have had to be deposited after an area was washed if it had been washed at all.
The Defence Case
Overview
[39] The defence raises three main areas of AB’s evidence, among others, that the defence submits raise a reasonable doubt as to JF’s guilt of the charges. The areas go to the credibility and reliability of AB’s evidence. The defence points to the following areas of AB’s preliminary inquiry testimony:
(a) AB’s testimony on the nature of her relationship with JF and their living arrangement; (b) the timing of AB’s knowledge about her pregnancy; and (c) the inconsistencies between AB’s allegations about the assaults and sexual assault and the forensic evidence.
Nature of Relationship, Pregnancy and Living Arrangements
The Officers’ Evidence
[40] AB’s evidence to the police was that she did not know JF well, that they had only dated three or four times. Officer Fardel attended AB’s room at the hospital at 9:30 p.m. on January 18th. In his memo book the officer noted a few details about the incident as referred to above.
[41] Officer Fardel noted that AB told him that when the incident occurred, she had been staying at her boyfriend’s apartment, who we learned through other witnesses, was JMcA. The officer noted that AB stated that JMcA left the apartment at 6:30 a.m. on January 18th and that she indicated she had lived with JMcA for a few months and that JF would stay there from time to time.
JF’s Evidence
[42] JF has a prior youth criminal record and an adult record for robbery and for a failure to comply related to a mischief charge.
[43] JF’s evidence painted an entirely different picture of his relationship with AB and their living arrangements.
[44] Contrary to what AB testified to at the preliminary inquiry about not knowing JF long and only having dated him three or four times, JF testified they had a romantic, intimate relationship for several months before January 18th. At the time he met AB, JF was in a six-year long relationship with his common law spouse, TH, and was living with her and their young daughter.
[45] JF’s evidence is that he met AB in mid-August 2017 at a mutual friend’s home where AB lived and began communicating with her through Snapchat. He began visiting AB there. TH discovered JF’s Snapchat communications with AB because she and JF had the same email account. Their relationship began to deteriorate as a result.
[46] JF said he tried to play the game of being with both women. JF’s evidence is that TH would not allow JF into her life if he was involved with another woman. JF admitted to lying to TH about his relationship with AB. JF testified that TH was forbidding him to see their daughter and he said he wanted to say certain things to TH so she would allow him to see his daughter.
[47] Regarding the question of AB’s pregnancy, the hospital records indicate that AB did not know she was pregnant until she learned of it at Sunnybrook on January 18th. JF’s evidence is that AB told him sometime after September 22, 2017 (his daughter’s birthday), maybe in October or November, that she was pregnant with his child. JF testified AB showed him the pregnancy testing stick. JF’s evidence was that in December 2017 AB told him she was three months pregnant and in January 2018 she said she was four months pregnant. AB never mentioned a pregnancy during the preliminary inquiry in October 2019 nor that she had borne a child. She described her relationship with JF as “casual”.
[48] The Crown questioned JF about a Facebook communication AB had with TH on November 7, 2017 where AB tells TH she had broken up with JF. AB said in the message that she left JF because “she couldn’t deal.” The Crown also pointed to a message on December 2 where AB tells TH. “He’s wilding. I don’t think this is going to work. All the best to you guys.” JF strenuously denied that AB broke up with him. He insisted he had no idea why AB would say that to TH. He suggested that AB may have said they were not together to help him to be able to see his daughter.
[49] Regarding their living arrangements, JF testified that he and AB decided to live together. They were planning to have the baby together as a family. JF stated that he started living in hotels around October 2017 where AB stayed with him. While they were staying at a Howard Johnson hotel on November 3, 2017, JF was arrested on a warrant and spent three weeks in custody. TH had called the police on JF on a domestic complaint because JF was removing things from the home and TH wanted that to stop.
[50] JF was released on bail to his father’s home on Rogers Rd. JF’s evidence was that AB stayed with him at his father’s home until his family did not want her to live there any longer. JF testified that after TH made him leave home, he was with AB everyday before January 18th except for the brief period after AB was asked to leave his father’s home.
[51] JF testified he wanted to be with AB and in violation of his bail conditions he got an apartment for AB in Ajax and shortly afterwards an apartment for both of them at 500 Dawes Rd. By around Christmas 2017, JF viewed himself and AB as a couple. The Dawes Rd. apartment was crime-ridden, and being on bail, JF decided he had to find another apartment.
[52] JF contends he contacted a friend, JMcA, the man AB said was her boyfriend and whom she said she was living with on January 2018. According to JF’s evidence, the real situation was that JMcA offered for JF and AB to rent an apartment from him where he was the registered tenant. JMcA was living with his mother on Dawes Rd. at the time. The apartment he rented to JF was Apt. 40 at 814 Broadview Ave., the apartment where the incident occurred. According to JF, he and AB moved into the apartment in December 2017, about a month before the incident. He testified Mr. McA was not living in the apartment at that time.
JF’s Mother’s Evidence
[53] There is other evidence that tends to confirm that JF and AB were together as a couple. JF’s mother, IH, communicated with AB while JF was in custody in November 2017. She testified her son asked her for money and asked her to meet with his girlfriend, AB, because he was sending AB to pick up the money from her. The mother met AB at the Sherbourne subway station and passed the money to AB.
[54] The mother also testified that before the Sherbourne subway meeting she had talked to AB about three times on the phone because AB said she needed someone to talk to. In the conversations, AB told the mother she was worried about her relationship with JF, about him running between her and his baby’s mother, TH. The mother learned of her son’s arrest through AB. The mother also learned around the time of JF’s arrest that AB was pregnant.
[55] The second face-to-face meeting the mother had with AB was when JF arranged for AB to pick his mother up and drive her to JF’s father’s home to see JF who had just been released on bail. The mother visited there for about 15 minutes.
[56] The third face-to-face meeting between AB and the mother was at the Broadview subway station just before Christmas of 2017 where she went to give her son money for a Christmas gift. JF and AB met her in the station. The mother testified JF told her he had a place on Broadview and invited her to see where he lives. She declined because she had to go back to work. The mother testified that before her son got arrested, AB told her she was living at the Broadview apartment with JF.
TH’s Evidence
[57] TH, JF’s common law spouse, also testified. Her evidence also confirmed the evidence about AB’s and JF’s relationship, living arrangements and pregnancy.
[58] TH’s evidence is that she found out about AB’s and JF’s relationship in early September 2017 when she saw flirtatious Snapchat messages from AB to JF which she viewed on her cellphone. This is when her relationship with JF began to unravel. TH estimated that JF moved out of their home at about the end of October 2017. She confirmed that she began communicating with AB by Snapchat and Facebook.
[59] TH and AB were fighting over JF in the beginning of their communications. TH testified she knew when he left their home that he was with AB. In a message to TH on November 7th where AB is telling TH to leave JF alone, AB signs off “Yours truly A_____ aka his wife.” TH testified she eventually resigned herself to the fact that JF wanted to be with AB and made amends with AB.
[60] TH was also aware of AB’s and JF’s living arrangements. TH testified that she was aware JF got an apartment on Dawes Rd. with AB and subsequently got an apartment with AB on Broadview. TH testified she understood JF and AB to be in a committed relationship, as boyfriend and girlfriend, and pointed to the fact that AB referred to herself as JF’s wife.
[61] TH was aware that AB was pregnant. She testified she learned from AB in about mid-September 2017 that she was pregnant with JF’s baby. Her evidence suggests however that there were two pregnancies. TH believed she aborted the first pregnancy. She explained that is why JF stated in the Facebook message on December 2, 2017 that he had been fooled about AB being pregnant, that he was confused. TH said then on November 7th AB announced she was pregnant again. TH said she learned that AB had a baby around July 2018.
[62] TH confirmed that in spite of living with AB, JF continued to try to reconcile with her while being with AB too. Apparently, according to JF, AB was not aware JF was trying to reconcile with TH.
January 17th, the Day before the Incident
[63] JF’s evidence, looked at in the context of the totality of the evidence about what happened on January 18th at the apartment, is entirely at odds with AB’s account. JF provided evidence as to what he says is the backdrop to things that occurred on January 17th. JF said they had lived at the apartment for three weeks by that time. JF denies physically and sexually assaulting AB.
[64] On January 17, 2018 at about 10:30 p.m., AB asked JF to get her some food at McDonald’s on the Danforth. JF left the apartment. When JF got to the bottom of the stairs that led outside he realized he did not have sufficient money and he returned to the apartment. He testified that he saw AB sitting at a table near the kitchen with a piece of tin foil in front of her on the table containing a black substance. JF testified he said nothing to her and proceeded to get some change from a kitchen drawer. He said he just left to get the food because he did not want to be confrontational.
[65] JF testified that when he returned around 11:30 p.m. with the food, AB was lying on the couch nodding off. JF admitted he was a cocaine drug dealer and a heroin user. He indicated that he stayed up that evening watching his cellphones for calls from clients.
[66] JF said AB eventually got up from the couch and JF then asked her what was on the tin foil on the table. According to JF, AB responded, “What do you care what I do?”. JF’s evidence is that he was not sure what was on the foil but he thought it could have been either hashish or the remnants of burnt heroin. He testified he said to AB, “We’re having a baby. What’s the matter with you?”. AB responded, “You don’t think I don’t know you are trying to get back with your baby mother. Why don’t you want to be with me?”
[67] AB told JF she had searched through his cell phone when he was sleeping and knew he loved TH. JF stated that he and AB went back and forth with that argument. He said the argument ended when the superintendent of the building and contractors knocked on the apartment door.
[68] JF explained why he was in the closet when the men entered the apartment. He explained there was a plan among himself and JMcA and AB that he would hide if the superintendent came to the apartment until the superintendent leaves because JF was not supposed to be living there. JMcA was the actual tenant, not him. The plan was for AB to answer the door and pretend to be JMcA’s girlfriend and tell the superintendent to hold on in order to give JF time to hide in the closet. JF admitted as well that what he was doing in the apartment was selling drugs and he did not want the superintendent to know him.
[69] JF said he came out of the closet when he saw AB was leaving the apartment. He said he had just caught her doing drugs and he wanted to know where she was going. He went into the hall and hugged her and told her he just wanted to keep talking out their problems. JF said he wanted her to return to the apartment so he could convince her that he did not want to get back with TH.
[70] JF testified that when the superintendent told him to leave her alone, he let her go. He said when the superintendent said he was calling the police he got dressed and fled. He explained that he fled because he was supposed to be on house arrest, and further, he was selling drugs from the apartment and did not want to encounter the police.
[71] One-by-one, when put to him, JF denied each allegation of assault and sexual abuse. Regarding the bump on AB’s forehead, JF testified that bump had been on her head from before and said when he inquired about it that AB had an attitude and told him “don’t worry about it.” JF testified that he did not see a bloody lip but explained that when a person smokes a lot of weed and does not drink water their lips can crack and bleed.
[72] JF testified he never returned to the apartment. He said that he and AB continued their relationship for a brief period after the incident. He said he saw AB after January 18th and stayed with her at an apartment at 251 Sherbourne on January 21, 2018. He said they communicated back and forth on Facebook and video chat when they were not together during that period. JF testified they then moved together to an apartment on Henry St. in Toronto where he said they lived from January 27th to mid-February. The last time he spoke to AB was in mid-February 2018 when she went to stay at her mother’s place. He said AB’s mother told him he was a worm and to leave her daughter alone.
The Court’s Conclusions
[73] I find the evidence has established beyond a reasonable doubt that JF did not commit the sexual and physical assaults and the confinement and robbery offences charged.
[74] This is a classic “he-say-she-say” case where the accused and the complainant are the sole witnesses to what occurred at the apartment on the morning of January 18th. Credibility is the central issue to decide. The Supreme Court of Canada in R. v. W(D) provides guidance on how to apply the beyond a reasonable doubt burden of proof to the issue of credibility: R. v. W(D), [1991] 1 S.C.R. 742 (S.C.C.). In the case before me there is some circumstantial evidence to consider that I find does not support the Crown’s position.
[75] The trier of fact must evaluate the evidence of a witness in relation to all the evidence presented at the trial as a whole. Witnesses are not to be assessed in a vacuum. The trier must not approach the evidence as a contest of credibility between witnesses. That is, the trier must avoid reversing the burden of proof onto the accused forcing the accused to disprove their guilt by the trier preferring one testimony to another.
[76] R. v. W(D) set the following well-known tests:
(a) First, if you believe the evidence of the accused, obviously you must acquit. (b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. (c) 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.
[77] I find the first test has been met. I believe JF’s evidence for the following reasons:
[78] The failure of AB’s credibility in certain critical areas of the evidence and the inconsistencies of her claims with the forensic evidence in the context of all the evidence I received gives me a reasonable doubt that JF committed the acts alleged by AB.
[79] I find the evidence is clear that AB attempted to mislead the court in the preliminary inquiry about the nature of her relationship with JF. Looking at her evidence in the totality of the evidence I do not accept that her relationship with JF was casual, that they had just dated three or four times as she testified at the preliminary inquiry.
[80] The evidence of JF’s mother and his ex-common law spouse, TH, support JF’s evidence that they had a more substantial and intimate relationship. JF’s mother, being his mother, might be prone to giving evidence to support her son. I considered that. As well, I believe it is clear from the evidence that TH still cared a great deal for JF. They have a child together and it is not beyond reason to expect her to not want the father of her child to go to jail if he is found guilty. I also considered that. But I accept the mother’s and TH’s evidence about the relationship. There is also other evidence in support.
[81] Pointing away from a casual relationship is the evidence about AB’s pregnancy and TH’s evidence about the birth of AB’s child in around July 2018. It appears from the Sunnybrook records and Ms. Bobala’s evidence that AB gave the impression she just learned she was pregnant at the hospital on January 18th. Further, she did not mention the pregnancy or the birth of the child during the preliminary inquiry in October 2019. I find the mother and TH testified credibly about knowing AB was pregnant in November 2017. This supports JF’s evidence. Moreover, the Facebook and Snapchat messages which TH and JF confirmed as being communications between TH and AB and between TH and JF in November and December 2017 discuss AB’s pregnancy.
[82] I accept that AB was pregnant with JF’s child and that realistically AB would have known this in January 2018. I also accept that she had given birth to the baby by the time of the preliminary inquiry in October 2019. This of course means the relationship was more than casual and that AB knew JF to a greater extent than she admitted at the preliminary inquiry. For the purpose of underplaying the relationship, AB was not honest with the hospital about the pregnancy and also not forthright when she did not mention the pregnancy at the preliminary inquiry. I believe there certainly were ups and downs in their relationship as reflected in the Facebook and Snapchat messages. But I believe on the whole of the evidence that they were in an intimate, domestic relationship.
[83] The evidence about the pregnancy and the nature of the relationship link directly to the evidence about AB’s and JF’s living arrangements. On the totality of the evidence I received, I believe, commensurate with the seriousness of AB and JF’s relationship and the pregnancy, that AB and JF were living together.
[84] I accept the mother’s, TH’s and JF’s evidence about JF’s and AB’s living arrangements. Both the mother and TH gave credible evidence about how they knew AB and JF were living together at the Broadview apartment in November and December 2017 and at other places earlier. JF said they had been living together at the Broadview apartment for about three weeks before January 2018. In the same way I find AB was dishonest about the pregnancy and the nature of the relationship, I also believe she was dishonest about not living with JF when the alleged incident occurred. AB’s evidence at the preliminary inquiry was that she was living with JMcA at the apartment and that JF would just drop in here and there. I do not believe that.
[85] I also do not believe that JF burst into the apartment uninvited between 6:00 and 6:30 a.m. on January 18th. The video surveillance of the hallway outside the apartment door does not show this. The mysterious shoes outside the door do not establish AB’s claim about JF’s arrival at the apartment.
[86] AB’s dishonesty on the nature of the relationship, the pregnancy and the living arrangements lead to questions about the credibility of her allegations of assault, sexual assault, confinement and robbery. The evidence in the areas of evidence at issue provide a larger context from which to consider the credibility and reliability of AB’s story about what happened at the Broadview apartment on January 18th.
[87] JF’s evidence about what happened on January 17th leading up to the superintendent of the apartment knocking on the door and afterwards I find stands to reason when looked at in the totality of the evidence. If one accepts that AB was pregnant, AB and JF had a domestic relationship and resided together, then JF’s evidence about what preceded him hugging AB in the hallway and fleeing the apartment makes sense. Add to that mix of facts the evidence about the rancour in his relationship with AB because of his admitted infidelity with his ex-spouse, then JF’s narrative stands to reason.
[88] That is, AB and JF are together in the apartment the previous evening. AB is pregnant. AB asks JF to go out and get her some food. JF goes out and returns for change and sees AB with tin foil on the table with a black substance thought to be hashish or heroin in front of her. AB gets angry when JF questions her about this and AB lashes out about why JF cares when he is trying to get back with TH. They have an argument before the knock on the door.
[89] The fact of JF going into the closet to hide without context does not make sense. But with JF’s explanation that he and AB were living at the apartment illegally with the permission of the true tenant, JMcA, it makes sense that JF would hide. JF leaving the closet and hugging AB in the hallway after he sees her leaving the apartment, likely angry, after she had done drugs while pregnant and when they had not finished the talk about his feelings about TH, also makes sense. JF letting go of AB and fleeing the apartment building when the superintendent says he is going to call the police also stands to reason given that JF was in violation of bail and selling drugs from the apartment.
[90] The forensic results are other circumstantial evidence that directly point away from the conduct AB alleges against JF. The nurse collected material from skin swabs and swabs of AB’s oral cavity, internal vagina and external genitalia. There was sufficient DNA on the skin swabs of the face, left ear and the breasts. JF could not be excluded as a donor of the male DNA on the face, left ear and breasts. The finding was that it was more than one trillion times more likely to be AB’s and JF’s DNA on those swabs than unrelated persons.
[91] This evidence of course directly links to the evidence about AB’s and JF’s relationship and living arrangements. The inevitability of a domestic intimate partner shedding their DNA on the other partner’s face, ears and breasts aligns with basic common sense. This obviously can occur outside the context of assault and sexual abuse. From the perspective of their relationship then it is not a mystery why AB and JF could not be excluded as the donors of DNA on those areas of AB’s body.
[92] No bodily fluids were collected from AB. There was none or insufficient male DNA found on the swab of the external genitalia and on the swab of the vagina. There is no evidence of sexual penetration. This seems to accord with the bottomline of AB’s evidence about whether JF forced intercourse on her.
[93] For instance, some police notes indicate AB did not want to talk about the sexual assault which in itself is understandable if dealing with a victim of sexual assault. The hospital records indicate that AB when asked did not want to talk about whether there was penetration. As was her right she declined a speculum examination. Officer Witt’s notes indicate AB whispered “no” to her question about penetration. This is not to suggest that forced sexual intercourse is the only form of sexual assault possible. It is just that this is the type of sexual assault AB suggested in her account. I do not find beyond a reasonable doubt that JF committed a sexual assault by forcing sexual intercourse on AB.
[94] Regarding the allegation of strangulation, AB testified at the preliminary inquiry that JF put a belt around her neck and choked her. The nurse reported something different. She noted that AB said JF put his knee on her chest three or four times and used both hands to choke her with great force. The nurse did not note the choking with a belt and conceded that if AB had said that she would have noted it. I cannot find beyond a reasonable doubt that AB was strangled with a belt.
[95] AB testified JF banged her head on the tub and toilet, pulled a clump of her hair out of her head and broke a bottle over her head. AB’s evidence is that she was bleeding from the attacks. The nurse noted a number of scrapes and bruises on AB’s legs, neck and arms and some swelling on her face and neck as well as a bump on her forehead and cut on her lip. There is no evidence that gives the court confidence on the timing of when those injuries were sustained, as to whether the injuries were recent or not. An inference that can be drawn is that there is a reasonable possibility that the injuries were sustained at another time, caused by another person, inflicted by a cause other than the alleged assaults by JF: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 (S.C.C.).
[96] There is no evidence from the investigating police that they found blood, a clump of hair or broken glass in the bathroom or elsewhere in the apartment. The superintendent who arrived immediately after the alleged incident testified that he saw no blood, clump of hair or broken glass in the apartment. I cannot find beyond a reasonable doubt that AB was assaulted with a bottle or otherwise by JF.
[97] On the question of unlawful confinement, in view of the credibility problems in other areas of her evidence, I cannot accept beyond a reasonable doubt that AB was unlawfully confined to the apartment against her will.
[98] On the question of robbery, AB testified at the preliminary inquiry that JF took her cellphone. There is nothing else that supports that claim such as evidence before the court of the police recovering AB’s cellphone from JF. I cannot find beyond a reasonable doubt that JF robbed AB.
[99] There is no evidence that raises a reasonable doubt in my mind that JF is not guilty of the offences charged.
[100] I arrive at that conclusion in full recognition that JF is not a virtuous person. As he stands today, he is probably not the man a woman might want to take home to meet her parents. But JF does not pretend to be that person. He admitted to many less than admirable activities and qualities. JF admitted to perpetually lying to his ex-common law spouse and mother of his child and AB to win each of their favour even while AB was pregnant with his child. He admitted to being a drug addict and a cocaine drug dealer. He has a criminal record.
[101] JF did not try to mislead the court as to who he is. He did not try to convince the court of an unblemished reputation. This actually bode in his favour in my mind. Under rather skilled and persistent cross-examination, his evidence, supported by other credible evidence, held up under the glaring light of reason.
[102] I find AB fabricated her allegations against JF. I cannot say with any certainty what her motive might have been. Nor am I required to. But on the facts before the court it is abundantly clear that JF and AB had an unstable relationship principally because of the sore spot caused by JF’s dishonesty about his feelings for TH. In fact, according to the evidence I accept from JF, that was the very subject matter of the argument they were embroiled in when the superintendent knocked on the door and AB ran into the hallway very upset. AB’s final exasperation with JF’s games might have provoked her to make her allegations. Only AB knows for sure.
[103] But what stands out when all is said and done is that there was an elephant conspicuously absent from the courtroom at trial. The complainant was not there. AB avoided the police and the court’s every effort to get her to trial for an opportunity to tell her story. Neither did her failure to appear bode well for the credibility of her allegations.
Verdict
[104] I find JF not guilty on count 1 (sexual assault); count 2 (unlawful confinement); count 3 (choking); count 4 (assault with weapon, a bottle); count 5 (assault causing bodily harm); count 6 (assault with weapon, a belt); count 7 (assault); count 8 (assault); and count 9 (robbery).
[105] Acquittals will be registered accordingly.
B.A. Allen J.