COURT FILE NO.: CR-19-0001-0000
DATE: 2021-04-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MILAN KOVACEVIC
COUNSEL:
Elise Quinn, for the Crown
Stephen Bernstein, for the Accused
HEARD: February 3, 4, 5, 6 and 12, 2020 and January 28, 2021
REASONS FOR JUDGMENT
D. fitzpatrick J.
[1] The trial proper for this matter spanned five court days. I reserved my decision at the conclusion of the trial evidence and following closing submissions from counsel. This matter was scheduled to return before me in March, 2020 for judgment. As we all know, the COVID pandemic intervened. Ultimately, this case returned before me by video on January 28, 2021 when I provided my oral decision with reasons to follow. These are my reasons.
[2] The accused, Milan Kovacevic was alleged to have committed the following offences:
That he, between the 1st day of September, 2017 and the 18th day of October, 2017, at the City of Hamilton and/or elsewhere in the Province of Ontario, did obtain for consideration the sexual services of Megan MacDonald contrary to section 286.1(1) of the Criminal Code of Canada.
That he, between the 1st day of September, 2017 and the 18th day of October, 2017, at the Town of Oakville and/or elsewhere in the Province of Ontario, did obtain for consideration the sexual services of Megan MacDonald contrary to section 286.1(1) of the Criminal Code of Canada.
That he, between the 1st day of September, 2017 and the 18th day of October, 2017, at the Town of Oakville and/or elsewhere in the Province of Ontario, did commit an assault on Megan MacDonald contrary to section 266 of the Criminal Code of Canada.
That he, between the 1st day of September, 2017 and the 18th day of October, 2017, at the Town of Oakville and/or elsewhere in the Province of Ontario, did commit a sexual assault on Megan MacDonald contrary to section 271 of the Criminal Code of Canada.
That he, between the 1st day of September, 2017 and the 18th day of October, 2017, at the City of Niagara Falls and/or elsewhere in the Province of Ontario, did commit a sexual assault on Megan MacDonald contrary to section 271 of the Criminal Code of Canada.
That he, between the 17th day of October, 2017 and the 18th day of October, 2017, at the City of Kitchener, did verbally utter a threat to Megan MacDonald to cause bodily harm to her contrary to section 264.1(1)(a) of the Criminal Code of Canada.
That he, between the 17th day of October, 2017 and the 18th day of October, 2017, at the City of Kitchener, did commit an assault on Megan MacDonald contrary to section 266 of the Criminal Code of Canada.
That he, between the 17th day of October, 2017 and the 18th day of October, 2017, at the City of Kitchener and/or elsewhere in the Province of Ontario, did commit a sexual assault on Megan MacDonald contrary to section 271 of the Criminal Code of Canada.
The Trial Evidence
[3] Both Ms. MacDonald and Mr. Kovacevic testified. There were no other witnesses called.
[4] Ms. MacDonald was at all material times a sex trade worker. She described herself as a “survival” sex trade worker meaning she had no other source of income.
[5] Mr. Kovacevic was a participant on a website (“SP411”) frequented by sex trade workers, including Ms. MacDonald.
[6] Mr. Kovacevic and Ms. MacDonald first connected with one another on the SP411 website. This communication expanded to include phone texts and, according to Mr. Kovacevic, phone calls for many months prior to their first face-to-face meeting in September, 2017.
[7] Ms. MacDonald testified that she had developed an “emotional connection” to Mr. Kovacevic prior to their first in-person meeting.
[8] Mr. Kovacevic testified that he “had feelings” for Ms. MacDonald and that they had commenced a relationship prior to their first meeting in September, 2017.
[9] Mr. Kovacevic and Ms. MacDonald commenced a brief, intimate relationship that ended on or about October 22, 2017.
[10] Ms. MacDonald attended with the police and provided a statement in this matter on November 5, 2017.
[11] While not intended to be an exhaustive review, I will summarize what I considered to be the main points of evidence for each allegation.
September 1 – October 18, 2017 Obtaining Sexual Services for Consideration (Hamilton)
[12] Ms. MacDonald testified that she met Mr. Kovacevic for the first time in September, 2017. They met for drinks at a Hamilton bar, the Honest Lawyer. Ms. MacDonald said they next went to the nearby Sheraton Hotel and rented a room. She testified to engaging in sex with the accused in that room in exchange for money. Ms. MacDonald could not initially recall what amount of money. However, she did agree that she then received $140 for a one-half hour session after being referred to her police statement.
[13] Mr. Kovacevic agreed that their first meeting was at the Honest Lawyer. He testified that they remained there drinking and eating for six hours before going to the hotel. Mr. Kovacevic said they went to a bar located within the Sheraton Hotel for another two hours of drinking prior to attending the hotel room. He said that they engaged in consensual sex once back to the room. He did not pay Ms. MacDonald for sex. He remained with her until about 10:00 a.m. the next day.
September 1 – October 18, 2017 Obtaining Sexual Services for Consideration and Assault (Oakville)
[14] Ms. MacDonald testified that she met Mr. Kovacevic for the second time in September, 2017. They met at the Sandman Hotel in Oakville. She testified that she “believed” she then received $140 for a one-half hour sex session.
[15] Ms. MacDonald testified that Mr. Kovacevic bit her thigh during this sex session and that he did so without her consent.
[16] Ms. MacDonald went on to state that she allowed the accused to “over stay” his time possibly by several hours to all night on this second meeting because she felt they had “connected”. Ms. MacDonald stated that she then realized that she had feelings for Mr. Kovacevic.
[17] Ms. MacDonald acknowledged that she posted a photograph on her Instagram account on September 17, 2017 showing a bite mark on her inner thigh with the comment “Lol you know its a good session when lmao”. She confirmed this photograph was of the mark caused by Mr. Kovacevic biting her thigh during this sex session.
[18] Mr. Kovacevic agreed that their second meeting was in September, 2017 at the Sandman Hotel located in Oakville.
[19] Mr. Kovacevic met Ms. MacDonald at the Moxy’s restaurant located in the hotel where they remained until about midnight. Mr. Kovacevic testified that he did not pay her for sex on this occasion. Mr. Kovacevic described how he was performing oral sex on Ms. MacDonald when she asked to be bit on her leg and he did so. She then said, “bite harder” and he complied. Mr. Kovacevic stated Ms. MacDonald did not complain. He said they stayed together overnight that evening. He testified to meeting with Ms. MacDonald again later that day and again staying together overnight at the Sandman Hotel.
September 1 – October 18, 2017 Sexual Assault (Oakville)
[20] Ms. MacDonald testified that she and Mr. Kovacevic commenced an intimate relationship following their second meeting spending regular time together. The accused then began to assist her to obtain hotel rooms to meet with clients because she lacked the identification documentation or credit card that hotels demanded to rent rooms. Mr. Kovacevic would charge the hotel rooms on his credit card with the understanding that Ms. MacDonald would repay him with her cash earnings.
[21] Ms. MacDonald testified that the first time she was sexually assaulted by the accused was at the Sandman Hotel in Oakville.
[22] She provided her recollection of the accused “pushing himself on me” and having her “doggie position” on the bed. Ms. MacDonald testified to her recollection that she did not then want sex.
[23] Mr. Kovacevic testified that he and Ms. MacDonald spent time together regularly following their second meeting, including most weekends.
[24] He agreed that he met Ms. MacDonald at the Sandman Hotel in October, 2017. Ms. MacDonald was already there working.
[25] Mr. Kovacevic admitted to engaging in sexual relations with Ms. MacDonald at the Sandman Hotel in October, 2017. He said the sex was consensual and that they only engaged in the “missionary” position.
September 1 – October 18, 2017 Sexual Assault (Niagara Falls)
[26] Ms. MacDonald testified that the second time she was sexually assaulted by the accused was at the Four Points Hotel in Niagara Falls.
[27] Ms. MacDonald was unable to provide any details of this assault until she had the opportunity to review a copy of the texts between her and the accused extracted from their phones, which were made an exhibit during the trial. She said that reading the references there to the strip club assisted her recollection of the subsequent events back at the hotel room.
[28] Ms. MacDonald stated that she and Mr. Kovacevic went to a “strip club”. She testified that she consumed “a lot at the strip club and blurred out at the time.” Her view was that they were both completely intoxicated while at the club. Despite this, Ms. MacDonald recalled returning to the hotel room where Mr. Kovacevic pushed himself on her onto the bed and sexually assaulted her. She did not specify any sexual position for the assault when providing her testimony in chief. In cross-examination, Ms. MacDonald initially stated that she could not recall any sexual position. Near the end of her cross-examination, she indicated that it was a “doggie style” assault. Ms. MacDonald had a “very vague” recollection of saying she did not then want to have sex.
[29] Mr. Kovacevic agreed that he met with Ms. MacDonald at the Four Points Hotel in Niagara Falls, Ontario on September 30th and October 1st, 2017. Ms. MacDonald was already there working.
[30] Mr. Kovacevic testified that he finished his workday and arrived at the hotel at approximately 11:00 p.m. on September 30th. Ms. MacDonald was already there in a hotel room. Mr. Kovacevic said that he saw an empty liquor bottle in the room when he arrived. Mr. Kovacevic stated that they left the hotel room to attend at the hotel casino and then to a “strip bar” where they remained for a few hours. Mr. Kovacevic testified to consuming 4-5 beers and that Ms. MacDonald had approximately 15 alcohol drinks. Mr. Kovacevic testified that there was no sexual intercourse that evening with Ms. MacDonald. He explained that he was tired having been up since 5:00 a.m. the previous morning for work and that Ms. MacDonald was intoxicated. Mr. Kovacevic says they “cuddled”, and both fell asleep.
[31] Mr. Kovacevic testified that Ms. MacDonald had urinated in the bed during the night and they had to switch hotel rooms the next morning as a result. Mr. Kovacevic said that he engaged in consensual, missionary position sex with Ms. MacDonald at about 6:00 p.m. on October 1st. They subsequently left the room to listen to a band playing in the hotel and afterwards returned to the room. Mr. Kovacevic stated he was tired from the work week and fell asleep. Ms. MacDonald stayed up consuming alcohol. According to Mr. Kovacevic, they left the hotel together the next day and he drove Ms. MacDonald to her residence.
October 17/18, 2017 Utter Threat, Assault and Sexual Assault (Kitchener)
[32] On or about October 17, 2017, the accused had booked Ms. MacDonald a room at the Radisson Hotel but she was evicted by management for operating as a sex worker there. She then contacted Mr. Kovacevic asking for assistance to locate another hotel. Ms. MacDonald testified that the accused was angry but did drive from his home in Hamilton to Kitchener and assisted in renting her another room at the Kitchener Inn and Suites.
[33] After securing the room, Ms. MacDonald and Mr. Kovacevic walked across the street to a bar for drinks. There, she alleged, the accused threatened that it was “easy for a girl like you to go missing because you are an escort”. Ms. MacDonald said that he also talked about a trip where his former girlfriend drowned and that he threatened to drown Ms. MacDonald. Further, Mr. Kovacevic threatened that he would “rape [her] in the ass”. Ms. MacDonald said that the threats were randomly brought up. She testified that the accused was laughing, saying it was a joke. Ms. MacDonald stated that the accused was not angry, and they were not arguing when he said these things but to her it was not a joke.
[34] Ms. MacDonald and Mr. Kovacevic walked back to the hotel room after the bar closed. There they argued. The accused was venting about how Ms. MacDonald had sex with others for money but would not have sex with him. The argument escalated at some point and the accused threw Ms. MacDonald’s belongings outside the hotel room. Ms. MacDonald testified that the accused also pushed her against the metal bed frame, and she fell to the floor sustaining injuries.
[35] Ms. MacDonald testified that the accused calmed but was still pacing the room and angry. Ms. MacDonald then started to record the exchange with her phone. She said she did this fearing a sexual assault. Mr. Kovacevic was unaware of the recording. During this exchange, Ms. MacDonald could be heard asking the accused to stop and get off of her. Mr. Kovacevic could be heard complaining that Ms. MacDonald has sex with others but not him and asking for a kiss. Ms. MacDonald could be heard asking to cuddle, which she said she did in the hope that would be pacifying.
[36] The recordings end prior to the alleged sexual assault. Ms. MacDonald testified that the accused, subsequent to the recordings, pushed himself on top of and then penetrated her. She then “disassociated” and “just let it happen”. They spent the night in the hotel room together.
[37] Mr. Kovacevic acknowledged that he was assisting Ms. MacDonald during this time with booking hotel rooms for her to use for escorting. He testified to paying for three nights at the Radisson Hotel for Ms. MacDonald’s use. Mr. Kovacevic said he received a text from Ms. MacDonald who advised that she had been discovered escorting and was evicted from the Radisson. Mr. Kovacevic returned to collect Ms. MacDonald given the room was in his name.
[38] Mr. Kovacevic testified that they drove around Kitchener until they found a vacancy at the Kitchener Inn and Suites at approximately 11:00 p.m. After securing the room, Mr. Kovacevic and Ms. MacDonald attended at a nearby restaurant, Moose Winooski’s for some food and alcohol. Mr. Kovacevic said he had a “couple beers”. Mr. Kovacevic testified to arguing with Ms. MacDonald at the restaurant and calling her names. He denied making any threat to drown her or to sexually assault her. After food and drinks, they returned to the room.
[39] The arguing continued back in the hotel room. Mr. Kovacevic stated that he was yelling and again calling Ms. MacDonald names. He threatened to remove Ms. MacDonald from the room and went so far as to place her bags outside. Mr. Kovacevic denied pushing Ms. MacDonald against the bed or any assault.
[40] He stated that they eventually calmed. Mr. Kovacevic testified that he wanted and was requesting a kiss from Ms. MacDonald, but she only wanted to cuddle. Mr. Kovacevic said they spent the night together in the same bed. He said they cuddled and nothing more. In the morning, Mr. Kovacevic ordered a pizza. He said that Ms. MacDonald ordered a bottle of liquor and started consuming it. Mr. Kovacevic then left the hotel room to return home. Ms. MacDonald remained to escort that day.
Analysis
[41] I remind myself that every person charged with an offence, in this case Mr. Kovacevic, is presumed to be innocent. Mr. Kovacevic is not required to prove anything. The burden remains at all times on the Crown to prove his guilt beyond a reasonable doubt for the essential elements of each charge. That standard of proof is well known. Absolute certainty is not required or possible. However, that standard of proof is much closer to certainty than it is to the balance of probabilities. A mere likelihood or probability that the accused committed the offences is not enough to convict (see: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144).
[42] Mr. Kovacevic chose to take the witness stand to provide evidence during this trial. This, of course, requires me to undertake the following analysis set forth in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“W.D.”) at page 758:
a) If the testimony of the accused is believed then he must be found not guilty.
b) If the testimony of the accused is not believed but reasonable doubt remains based on it then he must be found not guilty.
c) If the testimony of the accused is not believed and no reasonable doubt remains based on the other evidence that is accepted then he must be found guilty.
[43] In R. v. S.(W.D.) (1994), 93 C.C.C. 93d) 1 (S.C.C.), Justice Cory offered this this:
Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown’s evidence or that of the defence. To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other and yet on the whole of the evidence be left with a reasonable doubt…the recharge in this case suffers from the same flaw as the recharge in R. v. W.(D.), supra. It will be remembered that in that case the trial judge instructed the jury on the recharge that the issue that they had to decide was whether they believed the accused or the complainant. Directions such as that exclude what has sometimes been referred to as the “third alternative”; namely, that without believing the accused, the jury, upon considering the evidence of accused in the context of all of the evidence, may have a reasonable doubt as to his guilt. [Emphasis added].
[44] Justice Code in R. v. Edwards, 2012 ONSC 3373, [2012] O.J. No. 2596 (Ont. S.C.J.) noted that the W.D. analysis presents “three separate alternatives or choices for the trier of fact that will depend on the evidence.” The first and third branches are engaged where absolute findings of belief or disbelief, respectively, can be made. “The so-called ‘second branch’ of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an ‘alternative’ to complete belief or complete rejection and arises where a trier cannot ‘resolve the conflicting evidence’ and cannot find ‘exactly where the truth of the matter lay’”.
[45] Mr. Kovacevic testified. No other witnesses were called on his behalf. The Crown called one witness, Ms. MacDonald. I am called upon to assess the credibility and reliability of both witnesses. This determination is the central issue in this case and many sexual assault trials. Credibility and reliability are distinct. Credibility refers to the “veracity or truthfulness” of the witness. Reliability is concerned with a witness’s “ability to accurately observe, recall and recount” (see: R. v. Slater, 2019 ONCA 807 at paras. 60 and 117; R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45 at para. 41).
[46] My assessment of each witness’s testimony must be made with reference to the totality of the evidence accepted during this trial whether such evidence was tendered by Mr. Kovacevic or the Crown (see: R. v. M.(R.E.) (2008), 235 C.C.C. (3d)(S.C.C.). As noted above and simply stated, the fact-finding determination must not be reduced to choosing which of two narratives is more believable. Similarly, I must consider the whole of the evidence when determining whether the Crown has met its burden of establishing guilt beyond a reasonable doubt.
[47] I am also mindful to avoid any assumptions, stereotypes and “common sense” views as to how a victim of any crime, in particular a sexual assault, should act (see: R. v. A.R.J.D., 2018 SCC 6 and R. v. A.B.A., 2019 ONCA 124).
[48] Generally, the credibility of both witnesses was not impugned.
[49] It is the reliability of Ms. MacDonald’s testimony that troubles me flowing from her admitted alcohol abuse throughout the times material to all of the allegations against Mr. Kovacevic.
[50] Ms. MacDonald admitted that she was “drinking a lot” and that alcohol was a “huge problem” for her at the time of these allegations. Ms. MacDonald told us that she consumed a “fair amount of alcohol” when she was working and was otherwise drinking daily to function.
[51] Ms. Macdonald testified that events material to these allegations were “blurry” given her “heavy” consumption of alcohol, the number of times she met with Mr. Kovacevic and the fact she was “bouncing” from city to city and hotel to hotel for work.
[52] Ms. MacDonald’s testimony confirms what I would consider a matter of common sense and experience, namely that the excessive consumption of alcohol can interfere with a person’s memory.
[53] Ms. MacDonald’s abuse of alcohol was so complete during this time that she was admittedly intoxicated when she attended with the police to provide her statement in this matter.
[54] Mr. Kovacevic also admits to consuming alcohol at the times material to these allegations. However, his evidence was that he consumed beer not the liquor Ms. MacDonald preferred and that he did so in lesser amounts to Ms. MacDonald. Mr. Kovacevic noted that Ms. MacDonald was the heavier drinker suggesting she drank “enough for an elephant” and referring to her alcohol consumption as being akin to a “machine”.
[55] I will return to this reliability concern when reviewing the allegations.
September 1–October 18, 2017 Obtaining Sexual Services for Consideration (Hamilton)
[56] Ms. MacDonald could provide limited details for the events of this day and the allegation. She did not recall attending at the hotel bar with Mr. Kovacevic after leaving the Honest Lawyer and prior to attending at the hotel room. She had no initial recollection of what fee Mr. Kovacevic paid for her services that day. This limited recollection is not surprising given the specific and unchallenged evidence that she and Mr. Kovacevic were together drinking alcohol for hours prior, coupled with the above noted testimony from Ms. MacDonald about her daily, heavy alcohol use.
[57] Ms. MacDonald did agree that she was paid $140 for thirty minutes after she was referred to the statement she gave to the police. The difficulty here is obvious. Ms. MacDonald was intoxicated when she provided this statement. The reliability of her police statement was not satisfactorily vetted during this trial at all. I am not prepared to simply accept that Ms. MacDonald’s statement to the police while intoxicated provides a reliable foundation to refresh her otherwise absent recollection.
[58] Ms. MacDonald offered perplexing answers when asked in cross-examination about the payment received from Mr. Kovacevic. Initially, she stated that the funds were left on the hotel room nightstand. Subsequently, Ms. MacDonald said the funds were left on the dresser with the tv standing on top of it.
[59] Ms. MacDonald anchored her recollection of the funds being placed on the dresser on the basis of the events that day being traumatic. She was reminded that she had not previously testified to anything traumatic happening at that first meeting. She admitted to seeing many men daily for sex and confirmed it was not traumatizing for her to be hired for sexual services.
[60] Ms. MacDonald then offered that it was traumatizing being “raped”. Clearly, I take no issue with that comment generally. However, Ms. MacDonald did not allege that she was sexually assaulted at this first meeting so it leaves me lost to understand how this reference to the trauma of sexual assault assisted her recollection of where the payment she received was placed at this first meeting.
[61] Ms. MacDonald’s explanation was further complicated when she attempted to support her recollection of payment by offering the generality that “a whore knows when she has been paid”. This offers some generality at best and suggests no specific recollection.
[62] Despite also consuming alcohol over an extended period and as noted in my previous review of the evidence, Mr. Kovacevic was able to provide greater details of this day than Ms. MacDonald.
[63] The evidence before me establishes the following:
a) that these two individuals communicated for an extended period before meeting in person;
b) that by the time of the first meeting the parties had developed a personal, emotional connection with one another;
c) that Ms. MacDonald was abusing alcohol daily at this time;
d) that the first meeting began with the parties meeting for drinks and sharing some eight (8) hours together before retreating to a hotel room;
e) that the parties engaged in sexual relations in the hotel room; and,
f) that the parties stayed together until approximately 10 a.m. the next morning.
[64] The above narrative is simply inconsistent with a business arrangement whereby Ms. MacDonald agreed to have a thirty-minute sex session with Mr. Kovacevic in exchange for $140.
[65] The above narrative is consistent with two individuals who have communicated for months, deciding to meet in person, enjoying one another’s company for hours and making the decision to share the evening and overnight together, which included consensual, sexual relations. In other words, the above narrative is consistent with the parties having commenced a personal relationship as at and continuing into their first meeting.
[66] The evidence before me is consistent with Mr. Kovacevic’s testimony, which I accept. On that basis, I am left with reasonable doubt and dismiss this charge against him.
[67] Although unnecessary for the disposition of this charge, I do want to address Ms. MacDonald’s evidence. The limited details provided, inconsistencies, indecisive explanations and admitted, extensive alcohol use critically undermine the reliability of Ms. MacDonald’s recollection of these events occurring two years prior.
September 1–October 18, 2017 Obtaining Sexual Services for Consideration and Assault (Oakville)
[68] This second allegation features the same concerns and directs a similar analysis as the first.
[69] Again, it was Mr. Kovacevic who was able to provide greater details of this day than Ms. MacDonald. Again, the unchallenged evidence before me from Mr. Kovacevic was that the parties were consuming alcohol for an extended period prior to attending at the hotel room and engaging in sexual relations.
[70] Ms. MacDonald could provide limited details for the events of this day and the allegation. She gave no evidence about attending at the hotel bar with Mr. Kovacevic prior to attending at the hotel room. The best she could offer was that she “believed” Mr. Kovacevic paid her $140 for a thirty-minute session. I understood this statement of belief by Ms. MacDonald to indicate that she was not certain about this part of her evidence.
[71] Again, Ms. MacDonald testified that Mr. Kovacevic placed the payment on the hotel room dresser. Again, she offered a generality for this recollection stating it was “protocol” with escorts for payment to be left on the dresser or nightstand.
[72] Ms. MacDonald was asked about the photograph of the bite mark and accompanying caption “Lol you know it was a good session when lmao” posted to her Instagram account. She denied that the caption meant it was a good session. Ms. MacDonald testified to posting this as a way to “laugh off the abuse”. Subsequently, she explained the posting was made to be “sarcastic” and to “glamourize the industry”.
[73] The evidence before me establishes the following:
a) that by the time of the second meeting the parties had commenced a personal, intimate relationship with one another;
b) that Ms. MacDonald was abusing alcohol daily at this time;
c) that the second meeting began with the parties meeting for drinks and sharing extended time together before retreating to a hotel room;
d) that the parties engaged in sexual relations in the hotel room; and,
e) that the parties stayed together until the next morning and met again later that same day again remaining together overnight.
[74] Again, the above narrative is inconsistent with a business arrangement whereby Ms. MacDonald agreed to have a thirty-minute sex session with Mr. Kovacevic in exchange for $140.
[75] The above narrative is consistent with two individuals who have decided to meet in person, socially for a second time, enjoying one another’s company for hours and making the decision to share the evening and overnight together, which included consensual, sexual relations. In other words, the above narrative is consistent with Mr. Kovacevic’s testimony, which I accept. I am left with reasonable doubt and dismiss the obtain sexual services for consideration charge against him.
[76] Mr. Kovacevic’s evidence was that he bit Ms. MacDonald at her request while engaged in sexual relations. He was not meaningfully challenged on this evidence and I accept it. I am left with reasonable doubt and dismiss the assault charge against him.
[77] Again, I do want to address Ms. MacDonald’s evidence. Ms. MacDonald’s testimony regarding the assault is troubling. Ms. MacDonald agreed that she spent extended time, possibly overnight into the next morning, with Mr. Kovacevic after this alleged assault. Further, she explains her decision to permit Mr. Kovacevic to “overstay” his time on the basis that she then felt a “close connection” to him. I cannot reconcile on the one hand Ms. MacDonald alleging she was the victim of an assault by biting and on the other contemporaneous feelings of a close connection such that she wanted to spend additional hours, which I accept was overnight, with Mr. Kovacevic.
[78] Equally troubling was Ms. MacDonald’s various explanations for her Instagram posting of the bite mark photograph with caption. There is no consistency in suggesting the posting was done to laugh off or present a sarcastic response to the alleged abuse and her testimony that the posting was done to glamourize the escort industry. In addition, and regarding the latter, it was not explained, and I do not understand how posting about an alleged physical assault while providing escorting services was glamourizing that industry.
[79] The limited details provided, inconsistencies, perplexing explanations set out immediately above and admitted, extensive alcohol use critically undermine the reliability of Ms. MacDonald’s recollection of these events occurring two years prior.
September 1 – October 18, 2017 Sexual Assault (Oakville)
[80] Ms. MacDonald testified that she was consuming alcohol daily and in large amounts at this time. She specifically testified to working as an escort that day and that she had been drinking alcohol.
[81] Ms. MacDonald acknowledged that the events of the alleged sexual assault at the Sandman were “blurry” because she was drinking alcohol heavily during this period. She had difficulties during her evidence differentiating and recollecting between events in Hamilton and Oakville in particular stating that her memories blurred together.
[82] In cross-examination, Ms. MacDonald attempted to clarify her prior testimony noted above by saying that her recollection of everything prior to the sexual assault was blurry but not the sexual assault itself. There was no explanation offered in support of how or why her recollection unblurred for the assault.
[83] Mr. Kovacevic did offer some greater detail when he testified respecting this allegation. He admits to sexual relations with Ms. MacDonald at the Sandman Hotel in October, 2017. He says the sex was consensual and that they only engaged in the “missionary” position.
[84] Mr. Kovacevic’s testimony presented limited details but more than a simple denial. He admits to consensual sex. Mr. Kovacevic’s testimony was not meaningfully challenged and I accept it. I am left with reasonable doubt and dismiss this charge against him.
[85] Again, I do want to address Ms. MacDonald’s evidence. The limited details provided, admitted, extensive alcohol use and related blurry recollection critically undermine the reliability of Ms. MacDonald’s testimony of these events occurring two years prior.
September 1 – October 18, 2017 Sexual Assault (Niagara Falls)
[86] Ms. MacDonald had no independent recollection of any details whatsoever for this allegation.
[87] Ms. MacDonald did provide limited details of the sexual assault after she reviewed an exhibit copy of the text exchanges between her and Mr. Kovacevic from that evening. In particular, Ms. MacDonald explained that reading the text references to the strip club they attended that evening assisted her recollection of what occurred when they subsequently returned to the hotel room. This explanation does little to remedy the obvious reliability concerns with Ms. MacDonald’s recollection.
[88] Again, the evidence was that Ms. MacDonald was abusing alcohol daily and heavily at this time. More particularly, Ms. MacDonald described how she drank before going to the strip club and “a lot” at the strip club resulting in her becoming “blurred out at that time”. She described herself as being “extremely drunk” and perceiving herself to be more drunk than Mr. Kovacevic.
[89] How is it possible that reviewing text messages referencing the strip club she subsequently attended and where Ms. MacDonald “blurred out” facilitated a recollection of what happened back in the hotel room following this night of unbridled intoxication? This was never explained.
[90] In addition to the above, Ms. MacDonald could only offer her vague recollection of telling Mr. Kovacevic she did not want to have sexual relations with him that evening.
[91] Mr. Kovacevic had an independent recollection of these events and provided details of the evening, including the extensive alcohol consumption by Ms. MacDonald. He testified to returning to the hotel room and falling asleep given he had been up early the prior morning to attend work for the day. Mr. Kovacevic denied any sex occurring that evening. His testimony was not meaningfully challenged on these events and I accept it. I am left with reasonable doubt and dismiss this charge against him.
[92] Again, I do want to address Ms. MacDonald’s evidence. The initial lack of any recollection for this allegation, questionable and poorly explained recovery of memory, the limited details provided, including very weak testimony on the issue of consent, and her extensive alcohol use critically undermine the reliability of Ms. MacDonald’s testimony of these events occurring two years prior.
October 17/18, 2017 Utter Threat, Assault and Sexual Assault (Kitchener)
[93] Again, Ms. MacDonald testified that she was consuming alcohol daily and in large amounts at this time. Ms. MacDonald specifically admitted to drinking “a lot” on the date of these allegations. We have the parties attending at a restaurant to consume alcohol just prior to the alleged events.
[94] Starting with the threat allegations, Ms. MacDonald was clear in her testimony that:
a) They were not arguing at the time the threats were made;
b) That Mr. Kovacevic was not angry at the time the threats were made; and,
c) That Mr. Kovacevic was in fact laughing and specifically expressed that he was joking at the time the threats were made.
[95] Mr. Kovacevic’s testimony respecting the threat allegations presented roughly the same level of limited details to that of Ms. MacDonald. Essentially, he denies making any threat. His denial was consistent and not meaningfully challenged. I cannot reject his denial. That being said, a mere denial on its own in the context of the limited details Mr. Kovacevic provided with respect to this allegation is insufficient for me to say that I believe him. As such, I must consider the other evidence presented, namely that of Ms. MacDonald.
[96] Clearly, I have significant concerns respecting Ms. MacDonald’s ability to recall these events given her admitted, significant consumption of alcohol. Ignoring this concern and accepting Ms. MacDonald’s evidence about the words said there remains difficulty in proving Mr. Kovacevic’s requisite mental state sometimes referred to as the fault element. In other words, I am not satisfied that Ms. MacDonald’s evidence establishes that Mr. Kovacevic intended the words uttered to intimidate or be taken seriously.
[97] The fault element is measured subjectively. The question to be determined by the evidence, including all reasonable inferences, is what did Mr. Kovacevic actually intend when the words were spoken? To determine Mr. Kovacevic’s state of mind, consideration is given to the words used and context.
[98] On Ms. MacDonald’s testimony, I am left with the context of the parties being in a public restaurant and not arguing. The threats are made randomly. Mr. Kovacevic is not angry, is laughing and saying he is joking when these alleged threats are spoken. Based on Ms. MacDonald’s evidence alone, including her perception that he was not joking, I am left with reasonable doubt that Mr. Kovacevic meant to intimidate Ms. MacDonald or meant such threats to be taken seriously by her. In other words, I am left with a reasonable doubt whether Mr. Kovacevic knowingly made the alleged threats.
[99] Given the above, I dismiss the threaten charge against Mr. Kovacevic. I will next address the assault allegation.
[100] Mr. Kovacevic simply denies any assault. Again, his denial was consistent and not meaningfully challenged. I cannot reject his denial. Here again, a mere denial on its own in the context of the limited details Mr. Kovacevic provided on this allegation is insufficient for me to say that I believe him. As such, I must consider the other evidence presented, namely that of Ms. MacDonald.
[101] I have concerns with Ms. MacDonald’s evidence respecting the assault.
[102] Again, I have significant concerns respecting Ms. MacDonald’s ability to recall these events given her admitted, significant consumption of alcohol.
[103] In chief, she stated that she was walking towards Mr. Kovacevic to collect her belongings that had been put outside the hotel door. Ms. MacDonald was then “pushed” by Mr. Kovacevic onto the bed where she hit her back against the metal frame and fell to the floor. She subsequently described how she was “thrown” from the front door by Mr. Kovacevic hitting the metal bed frame. These two descriptions do not reconcile. A push and a throw are not the same thing to me. There was no clarification sought or otherwise provided.
[104] Ms. MacDonald did not describe any injuries arising from this assault in chief. In cross-examination, she testified that the next day she had bruising and difficulty walking as a result. No photo of these injuries was taken by her or anyone on her behalf. This is noteworthy given Ms. MacDonald did use her phone to take a photo of the bite mark left by Mr. Kovacevic at their second meeting and had her phone available in Kitchener to capture any injury she sustained from him there. Her evidence on this point is conflicting. During her cross-examination when asked why she posted the photo of the bite mark, Ms. MacDonald told us that she posts much of her life on social media. Later in cross-examination when asked why she did not take a photo of the injuries arising from the Kitchener assault, Ms. MacDonald testified that posting photos was not something that she usually did and described doing so with the bite mark as “unusual” for her.
[105] As noted above, Ms. MacDonald made two audio recordings of her interactions with Mr. Kovacevic very shortly after this alleged assault. There is no mention of this assaultive behaviour by Ms. MacDonald during either recording. This seems unusual given the proximity to the assault, the serious injuries she alleges were just inflicted from the assault (i.e. sufficient to cause bruising and walking difficulty the next day) and that the recorded dialogue was one where Ms. MacDonald is rebuffing Ms. Kovacevic’s request for a kiss.
[106] Considering all of the above, I unable to resolve the fundamental conflict between the evidence of Mr. Kovacevic and Ms. MacDonald respecting the assault allegation. I cannot determine where the truth lay. Based on the whole of the evidence before me, I am left in a state of reasonable doubt that the alleged assault occurred. Accordingly, I dismiss this charge against Mr. Kovacevic. I will next address the sexual assault allegation.
[107] Mr. Kovacevic’s testimony respecting the sexual assault allegations was not without concerns.
[108] Mr. Kovacevic denied that he sexually assaulted Ms. MacDonald. He denied having sexual relations with her that evening. Mr. Kovacevic said that they did end up cuddling and then fell asleep together.
[109] Mr. Kovacevic’s testimony provided comparable detail to that of Ms. MacDonald about the events back in the hotel room. He did acknowledge things that reflected poorly on him such as being angry, argumentative, disrespectful and verbally abusive towards Ms. MacDonald. However, he was less than forthright in other parts of his testimony about that night. For example, Mr. Kovacevic in cross-examination agreed that he complained to Ms. MacDonald about her having sex with others yet refused to admit that he wanted sexual relations with her that evening. This just defies belief and came across as evasive.
[110] I am unable to say that I believe Mr. Kovacevic. I am also not able to reject his testimony respecting the sexual assault. As such, I must consider the other evidence presented, including the testimony of Ms. MacDonald along with the audio recordings and text communications that were tendered as exhibits during this trial.
[111] Again, I have significant concerns respecting Ms. MacDonald’s ability to recall these events given her admitted, significant consumption of alcohol.
[112] Ms. MacDonald provided limited details respecting the sexual assault. For example, she does not give any evidence of the sexual position used for the alleged assault. She simply states that Mr. Kovacevic forced her down with his body weight and penetrated her. I point this out in particular given Ms. MacDonald specified “doggie style” position for each of the prior two sexual assault allegations and, by her evidence, her recollection for this third sexual assault was better than the prior two, which I address in more detail below. Further, Ms. MacDonald testified that following this sexual assault she tossed and turned all evening. Despite apparently being awake throughout the night, she could not recall whether she slept together in the same bed with Mr. Kovacevic following the sexual assault.
[113] As noted above, Ms. MacDonald’s evidence was that her memory of the events in Kitchener was the best of the three sexual assault allegations against Mr. Kovacevic. I have difficulty with this statement given my comments on her recollection noted above. In addition, I have concern with the basis Ms. MacDonald expressed for her enhanced recollection of the Kitchener allegations. Ms. MacDonald told us that the events at Kitchener “stick out because that was the night I was sexually assaulted” by the accused. I am at a loss to understand how such a reference point provides Ms. MacDonald with a better recollection for the Kitchener allegations versus her admittedly poorer memory of the events in Oakville and Niagara Falls, which are locations where she also alleged Mr. Kovacevic sexually assaulted her. Saying that being sexually assaulted enhanced her memory of Kitchener does not distinguish that location from the Oakville and Niagara Falls allegations whatsoever.
[114] What is unique to this allegation is that Ms. MacDonald made two cell phone audio recordings of the interactions when they returned to the hotel room following having drinks at the restaurant. Ms. MacDonald testified that she made these recordings fearing an imminent sexual assault. Inexplicably, these recordings end before the alleged sexual assault occurred.
[115] For the most part, the recordings evidence Mr. Kovacevic asking repeatedly for a kiss with Ms. MacDonald suggesting they “cuddle” instead. There is one point where Ms. MacDonald told Mr. Kovacevic to “stop…get off of” her. He responded “What? I didn’t touch you” and their dialogue continued. Consistent with this, Mr. Kovacevic denied then touching Ms. MacDonald during his trial testimony. In any event, these recordings did not corroborate the sexual assault allegation directly. There is no reasonable inference that I am prepared to make based on these recordings with respect to the sexual assault allegation.
[116] As noted previously, the cell phone data for each of Ms. MacDonald and Mr. Kovacevic over the period for these allegations was extracted. An extraction report for each phone was filed as exhibits at trial.
[117] The Crown spent considerable time with each of Ms. MacDonald and Mr. Kovacevic reviewing their numerous text exchanges. The fundamental difficulty with these texts are that they mostly present generalized information.
[118] Mostly, the voluminous text exchanges present broad allegations that are not specifically tied to any of the charges brought against Mr. Kovacevic.
[119] There are, however, two exchanges found in these extracts that are more focussed and potentially relevant to the Kitchener allegations.
[120] One exchange occurs later in the day following the events in Kitchener. Ms. MacDonald writes “Whatever makes you feel better after beating me, calling me whore, screaming and raping me and than [sic] leaving me with no where to go” (see: the Cell Phone Extraction for Megan MacDonald at page 7, line 457). Mr. Kovacevic’s next response starts “I didn’t want to hurt you it’s the last thing I ever wanted to do. Now I hurt you I hurt myself” (see: the Cell Phone Extraction for Megan MacDonald at page 7, line 456). He testified to sending this message before seeing the text from Ms. MacDonald alleging the beating and raping. Mr. Kovacevic’s evidence was that his response to those allegations came a few lines following where he wrote “Stop it. You make me sound like a monster. I am not that bad a person. I am not a bad person” (see: the Cell Phone Extraction for Megan MacDonald at page 7, lines 453-452). He was consistent in his evidence on this point.
[121] Another focussed text exchange occurred on October 29, 2017. On that date, Ms. MacDonald messaged “All you had to do was put a fucking room under your name to ‘help me out’ instead you decided to come over and scream at me, put your hands on me, force sex, try to make me feel bad for not wanting to have sex, flip out about working when I have no other options, call me a whore, threaten to drown me, and rape me. Shall I go on?”. Mr. Kovacevic replied “I’m done I’m not going back and forth anymore with you. You punched me in the face at least 40 times. You said bikers are going to come kill me. You said your [sic] going to smash a bottle across my face. I can go on as well” (see: the Cell Phone Extraction for Megan MacDonald at page 41, lines 16-15).
[122] Presuming that the above reference events in Kitchener, the allegations in the messages from Ms. MacDonald in and of themselves do not advance the sexual assault case against Mr. Kovacevic. Simply, there are no admissions made by him in these texts to any of these allegations.
[123] In one of these exchanges, Mr. Kovacevic did admit to verbal abuse, having “extreme anger” issues, being jealous and that he can become a “monster” when consuming alcohol. Mr. Kovacevic continued in this same communication “I just really/sincerely apologize for the things I said and did to you” (see: Cell Phone Extraction for Milan Kovacevic at page 10, line 587-586). In another communication referencing a weekend just spent with Ms. MacDonald, he commented “I came there to comfort you and ended up freaking out like 20 times on you. Its not cool. I can’t do that anymore. You’ve already been through abusive relationships. It starts off verbal and turns physical. I don’t want to be that guy. I’m not going to do that anymore” (see: the Cell Phone Extraction for Milan Kovacevic at page 12, line 583). Again, these are not admissions to any of the specific allegations against him.
[124] As noted, the text extracts are extensive. Despite the volume, Mr. Kovacevic did not make admissions to any allegation forming the basis of the sexual assault or any other charges against him in these texts. Despite the volume, these texts lack context and details sufficient for me to draw inferences applicable to the Kitchener sexual assault or any of the charges against him.
[125] Mr. Kovacevic did not offer any admissions to the sexual assault or other Kitchener allegations during his testimony despite vigorous and skilful cross-examination by the Crown regarding these texts and otherwise.
[126] I want to be clear that corroboration is not required for an offence to be proven beyond a reasonable doubt. I repeat that I must look to the whole of the evidence I do accept, regardless of corroboration, to determine whether I am left with reasonable doubt. I have done so with respect to the Kitchener allegations and each of the allegations before me in this case.
[127] In summary, I am unable to find the truth of what happened that evening. Based on the whole of the evidence before me, I am left in a state of reasonable doubt that the alleged sexual assault occurred. Accordingly, I dismiss this charge against Mr. Kovacevic.
Summary
[128] The Crown has failed to meet its burden of proving Mr. Kovacevic’s guilt beyond a reasonable doubt on the various charges brought against him. The whole of the evidence before me, including the concerns with Ms. MacDonald’s testimony detailed above, was simply insufficient to satisfy that burden. This should not be interpreted to mean that I have no concerns about Mr. Kovacevic’s conduct in relation to these allegations. I most certainly do have concerns. It is quite easy for me to say that Mr. Kovacevic acted shamefully at times in his dealings with Ms. MacDonald. However, Mr. Kovacevic is not before me facing judgment on whether he behaved respectfully. He is charged with various criminal offences that the Crown had the onus to prove beyond a reasonable doubt. The evidence before me did not meet that onus. Accordingly, I am dismissing all of the charges against this accused.
___(Original signed by)
D. Fitzpatrick J.
Released: April 9, 2021