COURT FILE NO.: CR-19-204 DATE: 20201218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen Peter Léger, for the Crown
- and -
L. H. Jill Gamble, for the Defence
HEARD: December 12, 2020
REASONS FOR JUDGMENT
These reasons are subject to a publication ban under s. 486.4 of the Criminal Code prohibiting the publication, broadcast or transmission, in any way, of any evidence that could identify the complainant.
Chown, J.
OVERVIEW
[1] L.H. is charged with repeated sexual assault of the complainant during their marriage. The complainant described four sexual assaults in her testimony. The accused denied they occurred. Both the complainant and the accused provided evidence that was generally credible and largely unshaken in cross examination. I do have some minor concerns with the complainant’s credibility, reliability and motivation. I also have some minor concerns about the accused’s reliability and credibility. Obviously, their competing testimony cannot both be true, but I am left in a position where I cannot tell which version is true, meaning I am left in a state of doubt. Therefore, there will be an acquittal.
[2] For both the complainant and the accused, I regret that I have not been able to come to a definitive answer as to whether the described events occurred. The task of determining the truth is very difficult when there are diametrically opposed narratives and not much other evidence to go on. The onus on the Crown – proof beyond a reasonable doubt – is hard to overcome in circumstances such as this case. Here, the Crown has not met this heavy onus.
The Indictment
[3] The indictment alleges that between August 17, 2013 and August 2, 2018 the accused repeatedly assaulted the complainant. The earlier date, August 17, 2013, is the date the complainant and the accused were married. The later date, August 2, 2018, is the date the complainant and the accused separated.
Background
[4] The complainant, age 57, and the accused, age 58, met in August 2012. The complainant works as a hairdresser from her home, which she bought in 2003. The accused moved into the home after the marriage.
[5] In her testimony the complainant described four sexual assaults. These occurred in 2014, 2015 and 2016. The incidents all occurred in the master bedroom of the house. The complainant has a son, but he had moved out before the first incident. No one other than the complainant and the accused was present in the house for any of the incidents.
[6] Not surprisingly, there were no notes or records created contemporaneously with these four incidents, and the complainant is not able to recall the dates they occurred. She knows the first incident occurred in 2014 and that it occurred between 5:30AM and 6:30AM on a Thursday. She can anchor this because she remembers that she was expecting a particular client, “Claire.” At that time, Claire came once a month on Thursdays at 7:00AM for her hair appointment.
[7] The second and third incidents occurred in 2015, sometime before the couple temporarily separated in September of 2015.
[8] The fourth incident occurred after the accused moved back into the matrimonial home in the summer of 2016.
[9] The complainant’s routine work hours were full time Monday through Friday and some Saturdays. She would generally go to bed around 10:00AM and would generally wake up around 5:30AM or 6:00AM. As stated, she worked from home.
[10] Starting approximately April of 2014, the accused worked an afternoon shift from 4:00PM to 12:00AM. He would get home at 12:15AM and would generally to go bed at 1:30 or 2:00AM. He would get up at 9:00 or 9:30AM.
[11] Throughout their marriage, the complainant and the accused slept together. The complainant would wear panties but nothing on top. The accused would wear underwear (briefs) and nothing on top. She would hang a T-shirt on the post of the bed which she would put on as she got out of bed.
First Incident
[12] The complainant described that in the first incident, she awoke and got up to prepare for the arrival Claire. She grabbed her T-shirt off the bed post. The accused grabbed her around the waist with his arms, in a “huggy” gesture, and pulled her back into the bed. She said, “I gotta go, gotta go to work, Claire’s coming.” He continued to hold her, really tight. She was trying to pull away. Then, somehow, she was on her back and he got on top of her, straddling her, sitting on her stomach with his legs to either side of her. She was struggling, saying, “Get off.” He took her wrists and held them down on the bed with his hands. She was getting out of breath. He did not say anything. They struggled and she said she couldn’t breathe. He then took his fist and pushed it on her neck. She described that his index finger and pinky finger were on each side of her neck and his knuckles were on her neck. He did not say anything. She said, “get off” and “stop” and “I can’t breathe.” She then remembers hearing her underwear rip on the left side. Based on the look on his face, he seemed to like the noise of her underwear ripping. He was then between her legs at this point and he grabbed his penis and put it in her vagina. She said, “no.” He proceeded to have intercourse with his chest on her and his weight holding her down. This went on for perhaps five minutes. He ejaculated and then rolled over to his side of the bed. She did not want this to happen. She did not consent to it. She was upset and went into the bathroom. He did not say anything. She got up and had the appointment with Claire.
Second Incident
[13] As indicated, the second and third incidents took place in 2015. They also both occurred in the morning as the complainant was getting up and out of bed.
[14] In the second incident, as she was getting up out of bed the accused did a “leg lock” on the complainant by wrapping his legs around her legs. She said, “I gotta get up.” He then held her and was grabbing at her including grabbing her breasts with his hands. She said, “Stop it,” and “Don’t.” He straddled her as he had done in the first incident. She was fighting and trying to push him off. He ended on top of her. She couldn't breathe as he was putting all his weight on her. She went limp and he preceded to have sex with her, putting his penis in her vagina until he ejaculated. She did not want this to happen. She did not consent to it.
Third Incident
[15] The third incident was similar to the second. He again grabbed her and brought her back into the bed. He laid on top of her again. She again had trouble breathing. She again told him to get off. She struggled and she screamed at him. After he ejaculated, he rolled off. Again, she did not want this to happen and she did not consent to it.
Fourth Incident
[16] The fourth incident occurred in 2016, after the temporary separation.
[17] Unlike the first three incidents, this incident did not occur in the morning when she was getting up, but rather occurred when the accused came to bed. The complainant does not remember the time of night that this occurred. She woke up and he was beside her leaning over her. He had his fingers in her vagina. She had her panties on, but he pulled them over. She asked him what he was doing. He did not respond. He had two fingers in her vagina. He did not say anything else. He started to grab her breasts and she told him to stop. Finally, he got frustrated and said, “Whatever, bitch.” This was not a two-second incident. He was groping her – her breasts, her bum. He wanted to have sex. She kept pushing his hands away.
The Accused’s Denials
[18] Regarding the first incident, the accused denied that anything such as described ever occurred. He knew Claire. There was never an incident that occurred when Claire was coming for an appointment. In respect of the complainant’s evidence that the accused pulled her back into bed – grabbing her or hugging her as she was trying to get up – he denied that anything like that occurred. With respect to the choke with his fist as described by the complainant, the accused denied that this ever occurred.
[19] With respect to the second incident, the accused was asked if he could pinpoint this incident in his mind based on what had been described. He said it never happened so he could not pinpoint it. He said it’s hard to address something that didn’t happen.
[20] Where the complainant described fighting him off while he was on top of her for incidents #2 and #3, or asking him to stop, or saying “no”, the accused denied that this ever occurred. With respect to her description that she was crying during this incident, the accused denied that she had ever cried during any type of intercourse that they were having – never.
[21] With respect to the fourth incident, he denied ever waking up the complainant by putting his fingers in her vagina when she was asleep.
The Dates of the Incidents
[22] During argument, defence counsel criticized the complainant's testimony as unreliable because she did not have a good memory of the dates of these incidents. Counsel did acknowledge that the court should not expect perfection in a witness’s memory. However, counsel argued that the complainant’s evidence was simply too vague both in terms of recalling the date of these incidents and their relationship in time to other events in the timeline. Defence counsel argued that this vagueness goes to the issue of reliability, and that the complainant should not be considered a reliable witness.
[23] The Crown submitted that the complainant gave very detailed evidence, and that she did a great job of pinpointing the dates by, for instance, being able to say that the first incident was on a Thursday, anchored by the fact that Claire was coming. The incident was in the winter, anchored by the fact that she recalls flannel sheets were on the bed and the window was closed. The complainant said the incident was in December 2014 or January 2015 based on these anchors. In cross examination, the complainant acknowledged that these events could just as easily be anchored to February or March of 2015.
[24] The fact that the complainant was very uncertain about the dates of the incidents would be a cause for frustration for the defence in that it adds to the difficulty in responding to the case against the accused. However, I am not surprised that the complainant cannot remember the dates. She did not venture testimony about which she was uncertain regarding the dates, and thus her credibility is not diminished by this failure. Her inability to better pinpoint the dates is, however, an indication of poor reliability. Also, the uncertainty surrounding the dates makes it more difficult to assess the credibility of the complainant’s evidence and more difficult for the defence to respond to her allegations. Certainly, the case against the accused is not made stronger by the vagueness of the evidence surrounding the dates of the incidents.
Two Minor Impeachments
[25] The defence argued that the complainant’s credibility was brought into question because her testimony at the preliminary inquiry differed from her testimony at trial.
[26] At trial, in examination in chief the complainant said she went to the police on August 4, 2018 because she was afraid of the accused. However, at the preliminary hearing she said she went to the police as a result of speaking with her family law lawyer on August 3, 2018, and she did not mention being afraid of the accused. Further, at the preliminary inquiry when asked whether she had any intention of reporting the incidents to the police prior to speaking to her matrimonial lawyer, she said she did not know, and then that she “had no intentions of anything.” It does appear that, at trial, the complainant embellished the detail of being afraid of the accused.
[27] Secondly, at trial the complainant said that the accused said “Whatever, bitch” during the fourth incident. At the preliminary inquiry she did not mention this when describing the incident. In fact, she was asked if the accused said anything while the incident was occurring, and she answered that no, he didn’t talk. Again, it appears that the complainant embellished this detail.
[28] Overall, these embellishments were relatively minor. They did not seriously impair the complainant’s credibility. They did, however, impact my assessment of her reliability.
The Break and Enter
[29] Both the complainant and the accused, in cross examination, testified to unsubstantiated theories about a break and enter which occurred at the matrimonial home. The complainant said that the only thing that was taken was the accused’s cell phone, so he probably set it up.
[30] The accused said something did not add up with the break in. Someone who knew the house well had broken in and taken his cell phone and $300 out of his wallet. He now thinks the complainant faked the break and enter.
[31] He said this was in 2015. She said it could have been in 2013, 2014, 2015 or 2016.
[32] My impression of the reliability and credibility of both witnesses was not improved by their willingness to accuse each other of faking the break and enter based on speculation.
[33] The complainant initially said, somewhat dramatically, that she was traumatized by this incident. She said she felt scared, but not because a stranger was in the house. She implied the accused had faked the break and enter and that she was scared of him, and then almost immediately she said she was not blaming him. Then she said it was not that traumatic for her. She’s had worse things happen.
[34] I did find this exchange during the complainant’s evidence troubling. That is, she seemed genuinely upset while recalling the break and enter, and she said it was traumatizing, but on cross examination when an effort was made to use the break and enter to help pinpoint the dates of the incidents, she said the break and enter was not that traumatizing.
[35] I also sensed a change in her demeanor at this point, from upset to alert, as the line of questioning changed from asking about the break and enter to asking whether the trauma of it would help pinpoint the date of any of the incidents. I do recognize that demeanor is a “notoriously unreliable predictor of the accuracy of evidence given by a witness” (Law Society of Upper Canada v Neinstein, 2010 ONCA 193 at para 66; see also Archibald, T.L. & Harris, P.A., Demeanor Evidence: Appearances are Often Deceiving, (2020) 51 Adv Q 1). In addition, this exchange was very brief, so I do not make too much of it. However, the change in demeanor was accompanied by a subtle change in evidence (traumatizing to not that traumatizing), and I found the exchange left a question in my mind about the complainant’s credibility.
The Accused’s Demeanor Generally
[36] Counsel for the accused argues that the accused’s demeanor was convincing. I agree that his demeanor was calm and composed and consistent despite close cross examination. However, except as mentioned above, the complainant’s demeanor was also generally convincing. She presented as reasonable and at appropriate times, tearful.
[37] As already discussed, demeanor is notoriously unreliable. This case exemplifies the problem in that both witnesses exhibited a convincing demeanor, despite providing polar-opposite evidence on the crucial points.
Always Asleep
[38] The Crown pointed out some credibility concerns in the accused’s testimony. He testified that he never woke up when the complainant woke up and got out of bed in the morning. This would, in theory, be exculpatory because he had to be awake to perpetrate the assaults alleged in incident 1, 2 and 3. However, it does not sound credible that someone would always sleep through their partner waking up and getting out of bed. The accused eventually admitted that he may have sometimes got up to go to the washroom, but only after persistently denying that he ever woke up.
[39] Similarly, in examination in chief the accused was asked if the complainant was ever awake when he got home from work. He said, “Sometimes she was, yes.” Consistent with this, in cross examination, he agreed that “generally she would be asleep.” Then he said, “Sometimes she would be up.” However, later in the cross examination, he contradicted this when he was asked again if she was always asleep when he got home from work. He said she was always asleep except for the one day when she confronted him about financial issues in the separation including his pension and the Corvette (discussed below). He said that was the only time she’s ever been up after 12 midnight. This exchange left a question in my mind about the accused’s credibility.
Accused’s Denial that He got Mad
[40] During cross examination of the accused, the Crown spent considerable time trying to get the accused to admit he was maddened by some of the things his wife did. The accused had testified that she was controlling and did not want him to pay child support or travel to get his children. She had said she was going to sell a Corvette registered in her name but which she knew the accused intended to give to his son. She had sold some of his tools on Kijiji after their final separation. She did not return some photo albums.
[41] I confess, I could not see the point of the cross at the time. These events that might have made him mad occurred well after the four incidents. There was no indication that accused was angry when the four incidents occurred. There was no indication of an anger management issue. It would not make it more likely that the incidents occurred if he was angered by the things she had done.
[42] However, the point of the cross examination was revealed during the Crown’s closing submissions, when the Crown argued it was not credible that the things the accused complained about did not make him angry. The Crown argued that it was not credible that the accused would face these issues without getting mad, yet he persistently denied getting mad. The Crown’s point is that this failure to admit being mad diminished the accused’s credibility. He denied being mad to paint himself in a better light.
[43] It is reasonable suggestion, but I am not persuaded by the argument.
[44] Here, apart from the incidents described, there was no evidence of violence on the part of the accused. There was no evidence that he was generally intimidating or that the complainant found him threatening during their relationship. She did say at several points that she was scared of him, but as already described, she was impeached on this point with respect to going to the police because she was scared. There was little in the evidence to indicate that she found him intimidating. There was little in the evidence to indicate he got angry. The complainant stated that the police were called to the house, apparently on August 2, 2018, regarding a disruption that the accused and his family were causing at the house when she was working. However, I did not hear any details about this. In contrast, the accused testified that he found the complainant to be controlling. His relationship with her interfered with his relationship with his children, and she did not want him to pay child support. Overall, the evidence left me with the impression that the complainant was not a timid person and the accused is an even-tempered person.
[45] I appreciate that this dynamic does not make it less likely that the incidents occurred as alleged. My point, however, is that I did not think the accused’s credibility was diminished by his testimony that he did not get mad at the complainant’s alleged incivilities towards him. I accepted his assertions that there was no point in getting mad.
The Diamond Ring and Other Loving Moments in the Relationship
[46] The complainant acknowledged that when they married in August of 2013 and for a time thereafter, she would frequently send loving messages to the accused through Facebook. She also acknowledged that the accused bought her an expensive and beautiful diamond ring in March of 2018.
[47] These facts have no significance in terms of assessing whether the incidents occurred as described by the plaintiff. The fact that there were loving moments in the relationship does not make the alleged assaults more or less likely to have occurred.
I.M.’s Evidence
[48] During cross examination of the complainant, it was suggested to her that she threatened her former husband I.M. with going to the police with a false charge of assault. It was further suggested to her that she told I.M. she would throw herself against a wall or put a mark on her own cheek before going to the police. The complainant denied this.
[49] The accused called I.M. to confirm his version of this. The Crown objected to I.M.’s evidence on the basis that it was an effort to prove a collateral fact. I used my discretion to allow the testimony. I.M.’s evidence was important to the defence theory that the allegations against the accused are fabricated. The defence was seeking to call I.M. on the very narrow issue that she had also threatened to fabricate allegations against I.M., so there was a pattern. It was stated by the defence that I.M.’s testimony was critical to the defence theory. It was apparent that I.M.’s evidence was going to be brief and would not derail the proceedings into a trial over whether I.M. was threatened with fabricated allegations. The complainant had testified that her relationship with I.M. was “wonderful,” and he was a “sweet man” although an alcoholic. Based on this it appeared I.M.’s evidence might provide valuable insight.
[50] I.M.’s testimony was far from compelling. After a long pause, he could only recall the date he was married to the complainant as “2006, approximately.” He could only describe the length of the relationship as approximately five years. Then he had trouble agreeing in cross examination that 2006 plus five years would put the end of the relationship as at 2011, and that therefore the events he was describing had occurred nine years ago.
[51] I.M.’s description of the complainant’s alleged threat to fabricate allegations against him was very weak. He said that the complainant threatened a criminal complaint “if he didn’t leave peacefully.” He testified that she said if he didn’t leave peacefully, she would “have the police phoned and possibly put a mark on her face and have me forcibly removed.” This threat was made in the front entrance of the house when he tried to enter to retrieve some of his belongings.
[52] I am not able to give any weight to this aspect of I.M.’s testimony. The way he described it – that she would “possibly” put a mark on her face – suggests he was not even confident of this memory.
[53] I.M. described the complainant as controlling. He said there were no matrimonial proceedings between him and the complainant. He said he “walked away because she was threatening to go after my pension.” I found this part of I.M.’s testimony to be quite possibly true. It coincided with the accused’s credible testimony to the effect that the complainant was controlling of him, and that financial issues between them featured prominently during their breakup.
Divorce Proceedings
[54] The complainant and the accused are involved in divorce proceedings. As indicated, the complainant testified that they separated on August 2, 2018 and she saw a matrimonial lawyer the next day. As a result of the meeting with the matrimonial lawyer, she went to the police to tell them of the incidents. She said she had no idea “this” would all happen, from which I inferred she did not appreciate the nature of the legal process that would be set in motion.
[55] It is an outdated notion that victims of sexual will complain immediately after the assault. I do not think the fact that the complainant waited until 2018 to report the incidents to the police makes it less likely that the incidents occurred. R. v A.R.D., 2017 ABCA 237 at para 39 to 48, aff’d 2018 SCC 6. It is not the least bit surprising that the incidents were not reported immediately. In fact, in the context of familial abuse such as a sexual assault in a marriage, it is perhaps probable that incidents such as those described by the complainant would not be immediately reported: R. v J.M., 2018 ONSC 344 at para 65.
[56] Similarly, it does not follow that just because the complaints were reported to police immediately after receiving advice from a matrimonial lawyer, they did not occur. Having said that, some concern does arise from the fact that the incidents were reported, and first articulated, at a time when financial and other family disputes between the couple had come into focus. That factor may increase the motivation to embellish and I do not think it can be ignored.
Conclusion
[57] The Crown and the defence agreed that this matter involved an application of R. v W.D., [1991] 1 SCR 742. As is apparent from the foregoing discussion, for both the complainant and the accused, I accepted parts of their testimony, and did not accept parts of their testimony. The third branch of the W.D. test is applicable because on the basis of the evidence which I accept, I am not convinced beyond a reasonable doubt by that evidence of the guilt of the accused. I am by no means “sure” that any of the four described incidents occurred. Given this, I must acquit.