ONTARIO
SUPERIOR COURT OF JUSTICE
BARRIE COURT FILE NO.: CR-20-00000079
DATE: 20211020
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRAEDON MATHERS
Defendant
M. Villamil-Pallister, for the Crown
A. Richter, for the Defendant
HEARD: July 12-15 and September 7, 2021
REASONS FOR DECISION
MCKELVEY J.:
Introduction
[1] The defendant, Braedon Mathers, met A.C. at a wedding on the night of July 28/29, 2018 at the Nottawasaga Inn. It is alleged that during the course of the reception which followed the wedding, Mr. Mathers sexually assaulted Ms. A.C. and at the same time committed assaults on her by slapping her in the face and later choking her.
[2] Mr. Mathers is charged with the following offences under the Criminal Code:
That between the 28th day of July in the year 2018 and the 29th day of July in the year 2018, both dates inclusive, at the Town of New Tecumseth in the said Region, with the intent to enable himself to commit the indictable offence of sexual assault, he did attempt to choke A.C., contrary to the Criminal Code of Canada.
That between the 28th day of July in the year 2018 and the 29th day of July in the year 2018, both dates inclusive, at the Town of New Tecumseth in the said Region, he did in committing an assault upon A.C. cause bodily harm to her, contrary to the Criminal Code of Canada.
That between the 28th day of July in the year 2018 and the 29th day of July in the year 2018, both dates inclusive, at the Town of New Tecumseth in the said Region, he did in committing a sexual assault on A.C. cause bodily harm to her, contrary to the Criminal Code of Canada.
[3] At trial, the Crown called the following witnesses:
A.C. – the complainant
B.S. – the individual who accompanied Ms. A.C. to the wedding and who was a personal friend
Dr. K.K., who is a medical doctor in the emergency department at Ross Memorial Hospital, who assessed Ms. A.C. on August 1, 2018
A.E.C., who was the overnight financial officer working at the Nottawasaga Inn on the evening of July 28/29, 2018
T.N., who was another attendee at the wedding
K.M., a work colleague of Ms. A.C. who drove her to Ross Memorial Hospital
Officer V.S. – the officer who handled the initial complaint from the complainant
[4] In addition to the above witnesses, the Crown filed on consent a biology report from the Centre of Forensic Sciences.
[5] The defence called the following witnesses at trial:
Braedon Mathers – the defendant
M.C.– Mr. Mathers’ aunt
K.C.– Mr. Mathers’ aunt
[6] It is clear from the evidence in this case that Mr. Mathers and the complainant engaged in sexual activity on the night of July 28/29, 2018. Their evidence differs as to what happened during the sexual activity. The sexual activity was not witnessed. As a result, the outcome depends largely on the credibility and reliability of the evidence given by the complainant and the defendant.
[7] The Crown, of course, has the obligation to establish guilt beyond a reasonable doubt. As the defence has called evidence in this case, the principles set out in R. v. W.(D.), (1991, 63 CCC) (3d) 397, apply. Thus, in considering the elements of the offence, I must take into account that if I accept the evidence of the accused and/or his witnesses with respect to the essential elements of the offence, I must acquit. Second, even if I do not accept the evidence of the accused and/or his witnesses on the essential elements, but am left in reasonable doubt, again I must acquit. Third, even if I am not left in doubt by the evidence of the accused and/or his witnesses, I must still ask myself whether on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
The Evidence of A.C.
[8] Ms. A.C. is 28 years old and at the relevant time lived in the City of Kawartha Lakes with a close friend, B.S. She testified that she did not know the bride and groom and accompanied Mr. B.S. to the wedding as his guest. Prior to the wedding she had a glass of red wine. The wedding was held on the Saturday afternoon and there was a dinner which followed at around 5:30 p.m. She was seated with Mr. B.S. as well as friends of the bride and groom.
[9] Following the dinner there was dancing. At one point she went outside the banquet hall to get some air (identified as point 1 on a diagram marked as Exhibit 1 at trial). This is where she met the defendant. She had not met him previously. By this time Ms. A.C. had consumed some red wine at dinner. She did not recall how many glasses she had consumed. She confirmed that she was intoxicated and probably could not have walked in a straight line.
[10] Having met and talked with Mr. Mathers, she then proceeded to walk down a path to another location beside the Inn (identified as point 2 on Exhibit 1 at the trial). The defendant and Ms. A.C. sat down at point 2 and started to kiss. At this point all activity was consensual.
[11] Ms. A.C. did not recall the defendant fondling her breasts or her fondling his penis at this location. Nevertheless, she acknowledged on cross-examination that she could not say that this activity did not occur.
[12] Having engaged in kissing at point 2, the defendant and Ms. A.C. moved to location point 3. Point 3 was not terribly far away, but was along an unlit path near a golf green. At point 3, the couple was initially standing and kissing. Mr. Mathers subsequently put his hand on her shoulders and pushed her down to her knees. She could not recall how much force he used and stated that the pushing was not hurtful. However, she scraped her knees on the ground. Mr. Mathers then inserted his penis into her mouth. She stated that the tip of his penis reached the back of her throat and he was aggressively pumping his penis in and out of her mouth. She did not say no to this activity, but noted that talking was difficult with his penis in her mouth. His penis was neither fully erect nor soft. In cross-examination, Ms. A.C. agreed that she did not resist to going down on her knees for purposes of oral sex. She further agreed that she may well have helped him take out his penis and that the act of oral sex was consensual.
[13] Ms. A.C. then described how Mr. Mathers started to hit her with the open palm of his left hand. His hand hit her face between the cheekbone and the temple on the right side of her face. She did not recall how many times he hit her, but stated that this occurred on several occasions. She did not consent to being hit and this action occurred as his penis was in her mouth.
[14] Ms. A.C. testified that her next recollection is that she was on the ground on her back and Mr. Mathers was above her. Her legs were spread and he was trying to put his penis into her vagina. However, his penis wasn’t erect and he was not able to penetrate her vagina. She stated she was confused from being hit across the face and temple. At the time that he was attempting to penetrate her vagina, Mr. Mathers had his hand on her throat and was choking her. She felt she was blanking in and out. She did not recall saying anything to him. Mr. Mathers was clearly upset and mad. He was making grunts and appeared to be upset he could not get his penis into her vagina. Ms. A.C. stated that she did not consent to Mr. Mathers’ attempt at vaginal intercourse.
[15] Mr. Mathers then got up, put his penis back into his pants, and walked away. As he was walking away Ms. A.C. recalled that he turned to look at her. He put one hand in his pocket and stroked the beard on his face. He then turned around and left.
[16] Ms. A.C.’s next recollection is sitting between two sisters who were guests at the wedding in the banquet hall. These were two women who had purple hair. She didn’t recall how she got there. The two sisters asked her if she was ok and she told them she was. She stated that because this was a wedding, she did not want to say anything that would mar the event. Shortly after Mr. B.S. came and collected her things and took her back to her room. Mr. B.S. then left to go back to the wedding. She was still upset and sat in a chair. She stated that both her face and neck were swollen and felt tender.
[17] On the following morning she had a migraine headache and her eyes were sore from the light. She also felt nauseous. She stated that there was swelling on the right side of her face.
[18] Later, Ms. A.C. did some research which led her to believe that she might have a concussion. She decided that if she did have a concussion, she intended to go to the police. She attended at Ross Memorial Hospital where she was seen and assessed by Dr. K.K. Dr. K.K. made a diagnosis of a concussion. Subsequently, Ms. A.C. reported the incident to police.
Evidence of Mr. Mathers
[19] Mr. Mathers is currently 22 years old. The events in question occurred just after he turned 19. Mr. Mathers lives with his mother, dad and sister. He is currently employed as a bartender at a steakhouse in Oshawa.
[20] Mr. Mathers testified that he attended the wedding with his sister, mother and father. They were all seated together.
[21] After the service he went to the dinner and sat at a table with his family, some cousins and two photographers. He testified that he initially saw Ms. A.C. during dinner. He stated that she was at the loudest table which was banging their glasses to get the newly married couple to kiss. He found her very attractive.
[22] Mr. Mathers had wine with dinner and had two drinks of vodka and water later.
[23] Shortly after the dancing started, Mr. Mathers and his sister went to play ping pong at an arcade located at the Nottawasaga Inn. He subsequently returned to the dance floor where he danced with a number of people including Ms. A.C. He did not speak to Ms. A.C. while they were dancing.
[24] Later, Mr. Mathers decided to go outside with his sister and aunt K.C. There was a group of men who were out on the patio smoking. Ms. A.C. was with them. The group was loud and the men were talking about coming into their wedding and getting drinks. They thought there was a free bar.
[25] Mr. Mathers and his aunt approached the group and pulled Ms. A.C. aside. They told her that they did not want any strangers coming into their party. K.C. then went back into the banquet hall and he was left alone with Ms. A.C. at point 1. Mr. Mathers asked Ms. A.C. if she wanted to go for a walk. Ms. A.C. agreed and the couple walked down the path to point 2. During the walk, Mr. Mathers stated that Ms. A.C. was getting kind of “flirty” and was leaning on him. At the end of the walk they sat together on the ledge and continued talking. She was asking him questions. She leaned in and he made an advance to kiss her. This led to the couple making out and using their hands to feel each others bodies. Neither party objected to this. Mr. Mathers felt Ms. A.C.’s breasts and he stated that Ms. A.C. placed her hand over his penis which was under his clothing.
[26] Mr. Mathers wanted to go to a more private place and he took Ms. A.C.’s hand and proceeded to point 3. He was hoping that the encounter would progress sexually. They continued to make out. He stated that he put his hands on her shoulders and she moved to her knees. Ms. A.C. did not offer any resistance. He stated that he took off his belt. She undid his pants and put his penis in her mouth.
[27] Mr. Mathers denied ever having hit Ms. A.C. during oral sex. He stated that his hands were holding Ms. A.C.’s hair back.
[28] Mr. Mathers stated that he was not fully erect during oral sex. He testified that he has a medical condition which required surgery in grade 8. As a result of the surgery he sometimes has problems maintaining a full erection and sometimes is not able to fully ejaculate.
[29] After oral sex, Mr. Mathers stated that he lowered Ms. A.C. down on her back. He started to massage and kiss her breasts. He threw her blouse on the pathway beside them. He was on top of her fondling her breasts. His left hand was on her breast and the right hand was used to prop himself up. Ms. A.C. did not offer any objection to this. He then started to kiss her and move down towards her inner thigh. He took her panties off and Mr. Mathers stated that Ms. A.C. facilitated this by lifting her buttocks up. He took off her panties and threw them onto the path together with the blouse. He then performed oral sex on Ms. A.C. and was using his fingers as well. He then used his right hand to try and insert his penis into her vagina. He was not able to do this as he was not fully erect.
[30] Mr. Mathers stated that Ms. A.C. was very loud and enthusiastic about having sex with him. She seemed to be “really into it”.
[31] There was no indication that she was too drunk to consent and in cross-examination, Mr. Mathers stated that she was quite loud when he was performing oral sex on her.
[32] Mr. Mathers specifically denied that he choked Ms. A.C. or that he got angry because he was unable to obtain a full erection. He stated that while he was somewhat embarrassed, he had suffered from this condition since an early age and that he did not get mad or angry as a result.
[33] Mr. Mathers stated that he started to become uncomfortable because he could hear his parents calling for him. Specifically he stated that he could hear his father’s voice. He didn’t think sexually it was going anywhere. As a result, he stood up, put his penis back in his pants and started to walk away. In cross-examination, he agreed that he left Ms. A.C. behind unclothed. He told her that he was going to leave. He agreed that he looked back at her as he was leaving and stroked his beard.
[34] After he got back to the banquet hall room, Mr. Mathers did not talk to Ms. A.C. again. He saw her come back to the banquet hall. He was sitting inside the banquet hall and could see her clearly.
[35] Mr. Mathers did not ask for Ms. A.C.’s telephone number or arrange any follow-up with her. He stated that he did not wish to “mix those two worlds”.
[36] Mr. Mathers stated that Ms. A.C. seemed very enthusiastic during the whole time they were together, although she seemed frustrated near the end.
[37] Mr. Mathers stated that he saw Ms. A.C. the next morning at breakfast. He stated that she looked cute, although he didn’t speak to her. He waved at her but he made no attempt to go over and say hello.
[38] Mr. Mathers in re-examination stated that being aggressive or beating a woman would not assist him in getting an erection as his difficulty is due to the surgery he had as a child.
Analysis
[39] The first issue to be addressed is whether the evidence of the defence is accepted. If so, the charges against Mr. Mathers must be dismissed. Even if I do not accept the evidence of Mr. Mathers, I must consider whether it raises a reasonable doubt.
[40] I have concluded that I do not accept the evidence of Mr. Mathers, nor does it raise a reasonable doubt.
[41] According to Mr. Mathers, Ms. A.C. was an enthusiastic participant in the sexual activity which took place. However, this evidence flies directly in the face of what was observed following her return to the banquet hall.
[42] According to the evidence of Mr. B.S., Ms. A.C. was identified as being missing for about an hour. After she returned to the banquet hall, he went to see her and she seemed to have “shut down” almost like she wasn’t there. Before she went missing she was bubbly and having a great time. He had never seen her in that state before. Because she wasn’t doing well he suggested that she should go back to the hotel room with him. I found Mr. B.S. to be an excellent witness. There were no major inconsistencies in his evidence. He reported what he saw and did not hesitate to tell the court if he did not recall something in response to a question posed to him. For example, he readily acknowledged he did not see any swelling on the right side of Ms. A.C.’s face but pointed out that he did not go looking for any injuries.
[43] Ms. T.N. is an early childhood educator and was one of the “two sisters” who sat with Ms. A.C. after she returned to the banquet hall. Earlier in the evening she described Ms. A.C. as having a good time. Later after she returned and sat down at her table she was shocked. Ms. A.C.’s clothes were dishevelled. Her shirt was lifted up and not tucked in. She walked into the banquet hall very slowly and seemed like she was “in shock”. She had a glazed face and she described having a feeling that something was “off”. She asked Ms. A.C. if she was hurt and was told that she was ok. She was very quiet and looked upset.
[44] A.E.C. was the overnight financial officer for the Nottawasaga Inn for the evening in question. She also has a nursing degree and did home care nursing. She was at the front desk that evening. She came on duty at around 9:00 p.m. She stated that shortly after she saw Ms. A.C. and her male friend. She complimented Ms. A.C. on her makeup. She seemed really excited.
[45] Several hours later Ms. A.C. was returning to her room with her friend, Mr. B.S. She described a completely different person and realized immediately that something was wrong. On her way back, Ms. A.C. was visibly upset. She held her hands covering her face. He mascara had run, suggesting to Ms. A.E.C. that she had been crying. She was totally dishevelled and was now kind of slumped, walking slowly. She could see that she was in serious distress.
[46] I was very impressed with the evidence of Ms. A.E.C. She had no interest in this litigation and gave her evidence in a straightforward manner.
[47] There was, however, one major inconsistency in her evidence. Her evidence that she came on duty at around 9:00 p.m. means that it is unlikely that she saw Ms. A.C. and Mr. B.S. initially just after she came on duty at around 9:00 p.m. By this time, dinner would have been finished and the dancing would have begun. It seems unlikely that Ms. A.C. and Mr. B.S. would have been coming from their room past reception shortly after 9:00 p.m. Her observations of Ms. A.C. subsequently, would, however, appear to be strongly supported by the evidence of Mr. B.S. who testified that as he returned with Ms. A.C., the woman at the front desk was concerned about her appearance and gave her number so that Ms. A.C. could call if she wished. I therefore conclude that while there may be some issue as to whether Ms. A.E.C. saw Ms. A.C. earlier in the evening, I accept her evidence about the observations she made of Ms. A.C. when she was returning to her room after the alleged assault with Mr. B.S. I further accept her evidence that she went so far as to give Mr. B.S. her personal cellphone number because she was sufficiently concerned about what she observed of Ms. A.C.’s condition.
[48] All of this evidence, which I accept, is totally at odds with the description given by Mr. Mathers of Ms. A.C. being an enthusiastic participant in sexual activity. It is apparent that she was extremely upset upon her return to the banquet room and this evidence is totally at odds with the description given by Mr. Mathers. Evidence of post-event demeanour of a sexual assault complainant can properly be used as circumstantial evidence to corroborate the complainant’s version of events. See R. v. Rose, 2021 ONCA 408, at para 22.
[49] In addition, there is reason to question the evidence of Mr. Mathers that his leaving Ms. A.C. coincided with him hearing his father calling out for him. K.C. gave evidence that although she is only 22 years old, she is Braedon’s aunt. Braedon’s father is her brother. She was a very impressive witness and candidly acknowledged she was concerned about Ms. A.C. when she was found to have been missing along with Braedon. She commented that she did not want to see anyone being taken advantage of and started to search for them together with Braedon’s sister and two nieces. She described how her brother B. was upset that Braedon was missing. She described how once Braedon was discovered missing, she walked around the property doing laps. However, on cross-examination she confirmed that she wasn’t calling out for him. She also confirmed that her brother (Mr. Mathers’ father) stayed at the venue and was not out looking for him. He was not informed that Braedon was missing until after the search for him had taken place shortly before Braedon and Ms. A.C. returned. Mr. Mathers’ evidence is that he heard his father calling him and this in large part is what triggered him to leave Ms. A.C. and return to the banquet venue. This is not consistent with Ms. K.C.’s evidence.
[50] I am also concerned about the evidence which is undisputed that after the sexual activity ended, Mr. Mathers simply got up and left Ms. A.C. undressed laying on the ground with her clothes off. Regardless of whether Mr. Mathers heard someone calling out for him, this conduct seems at odds with consensual sexual activity which was being enthusiastically embraced by both parties as described by Mr. Mathers in his evidence.
[51] Having found that I do not accept the evidence of Mr. Mathers, and that it does not raise a reasonable doubt, I must still be convinced beyond a reasonable doubt on the basis of evidence which I do accept before making any finding of guilt.
[52] There were frailties in Ms. A.C.’s evidence. There were many things which she could not recall. For example, she was not able to recall specifics of her discussion with Mr. Mathers as they were sitting outside the banquet hall, nor could she recall any of her discussions with him when they were at points 2 or 3. On numerous occasions she had to refresh her memory from her statements to police or her preliminary inquiry evidence. Having said that, she was quite firm in her recollection of Mr. Mathers striking her on the right side of her face on several occasions and choking her while she was on the ground.
[53] There were also a number of serious inconsistencies in Ms. A.C.’s evidence. Officer V.S. received a call for service on August 7, 2018. She followed up and contacted Ms. A.C. in order to get an initial report to see whether the matter should be referred to the crime unit. She did not take a formal statement, nor was there any audio record of her conversation with Ms. A.C. She did, however, make notes of her discussion with Ms. A.C. Ms. A.C. was cross-examined with respect to the statement recorded by Officer V.S. Her evidence was as follows:
Question: Okay. If this refreshes your memory, then please let us know. “He, the suspect, then grabbed her throat very hard. She stated that it wasn’t a “playful, sexual choke”, it was a very hard choke as she started to see stars. That’s when it got more aggressive, was not mutual by then. Suspect started hitting A.C. across the face, cheek and head. Was seeing stars. Suspect pushed her on her knees and aggressively shoved his penis down her throat. While doing this, suspect was still hitting her. Things started going black”. Do you recall telling Officer V.S. that?
Answer: I don’t. I am sorry.
Question: Okay, those details, in the order that I’ve read them, they’re not consistent with what you told us today, are they?
Answer: Yeah I was about to say, they don’t line up. There’s – there’s a mix up there.
[54] In her evidence, Office V.S. testified that she did not ask any probing questions. Her notes reflected her discussion with Ms. A.C. where she allowed her to tell her story. While I accept that Office V.S. did her best to take accurate notes, this does not necessarily mean that the complainant was relaying her story in chronological order. The fact that the interview was not recorded and that there were no probing questions by Office V.S. makes it very difficult to know whether there was a significant inconsistency in Ms. A.C.’s evidence.
[55] A more clear cut inconsistency in Ms. A.C.’s evidence relates to her performing oral sex on Mr. Mathers. In her evidence in chief she was asked whether she consented to having oral sex with him. In her evidence in chief she testified as follows:
Question: Did you consent to that?
Answer: I didn’t tell him no.
Question: Why not?
Answer: I don’t know. I – things were happening in my mouth, so speaking around that would have been a little difficult.
[56] The inference I took from this evidence is that Ms. A.C. did not consent to the oral sex although she did not expressly tell him no because Mr. Mathers’ penis was in her mouth.
[57] However, on cross-examination, Ms. A.C. testified as follows:
Question: All right. And in fact, the act of oral sex was actually consensual, correct?
Answer: I suppose. I’m – it was not something I’m interested in, but it was consensual. I did not say no.
[58] Later on Ms. A.C. testified that she might have in fact opened Mr. Mathers’ pants to expose his penis. Her evidence in this regard is as follows:
Question: And if I could get you to turn to page 26, please, of your preliminary hearing transcript.
Answer: Okay. You said 26?
Question: Yes, please.
Answer: Okay.
Question: At the top of the page, you’re asked a question by the Crown in-chief.
“Okay. And did you want to be pushed? Like was that consensual?”
Your answer “Yeah.”
Question: “Okay.”
You respond: “I mean, to each their own.”
Question: Okay. So he pushes you down, what type of force did he use to do that?
Answer: Enough to push me.
Question: Okay.
Answer: Yeah.
Question: And do you resist?
Answer: No.”
Does that assist you as to whether this was consensual, the act of performing oral sex on Mister – or at least the act of going down for the purposes of performing oral sex?
Answer: For the purposes, yes.
Question: All right. And it’s entirely possible that prior to you going down to perform oral sex, you may well have assisted Mr. Mathers, or done it yourself, in opening his pants, removing his belt, whatever, to expose his penis?
Answer: That could have occurred, but I don’t recall specifically.
[59] I found Ms. A.C.’s evidence on this issue in cross-examination to be significantly at variance with her evidence at chief.
[60] There is also a significant discrepancy between Ms. A.C.’s evidence about the injuries she suffered as a result of the hitting and choking alleged and the subsequent observations made by others. Ms. A.C. testified that the right side of her face on the following day was “really, really, really swollen and bruised”. She also described swelling on the right side of her face where she had been hit which also would have been noticeable the following day. There were, however, no observations by Mr. B.S. to support this evidence. According to Ms. A.C., the swelling in her neck area lasted for about a week.
[61] Ms. A.C. also testified that she told Mr. B.S. that she had been attacked and at breakfast the following morning she pointed out to him the person who had been hitting her. Mr. B.S. and Ms. A.C. returned to their home on the day after the wedding. Ms. A.C. drove the vehicle which meant that the right side of her face and neck would have been visible to Mr. B.S. throughout the drive. The drive home would have taken several hours because not only did Ms. A.C. and Mr. B.S. drive back to the City of Kawartha Lakes, they also stopped in Newmarket at a mall to go shopping. Mr. B.S.’s evidence is that he did not see any sign of injury to Ms. A.C. either on the night of the wedding or the following day. Mr. B.S. pointed out that he was not looking for anything either. Nevertheless I find it concerning that no sign of any injury to either the side of Ms. A.C.’s face or her neck was observed by him.
[62] I am also concerned by the fact that Ms. A.C. does not have any recollection of what happened after the alleged initial hitting and when she observed Mr. Mathers on top of her attempting to insert his penis into her vagina. The biology report which was introduced as Exhibit 6 identifies the presence of saliva in Ms. A.C.’s underwear. This would be consistent with Mr. Mathers’ evidence that after receiving oral sex he performed oral sex on Ms. A.C. Ms. A.C. had no recollection of oral sex being performed on her by Mr. Mathers. Similarly, she has no recollection of the events after seeing Mr. Mathers walk away until she was sitting with the two sisters at a table inside the wedding venue. I have considered whether it is possible that the blows to her head caused her to lose consciousness. However, this would not explain her failure to remember how she got back to the wedding venue because clearly she was conscious at this point in time.
[63] I wish to comment on the evidence of K.M., who is a co-worker of Ms. A.C. In his evidence he testified that when he came into work one day, Ms. A.C. was crouched down and was holding the back of her head. He asked her “what’s up?”. He also testified that the back of her neck by her left ear looked red, although he did not observe any marks on her face. Both Mr. K.M. and Ms. A.C. work as customer support representatives for a cable company. Having completed a couple of calls from customers, they both agreed that she should go to hospital. Mr. K.M. then drove Ms. A.C. to hospital. In cross-examination, Mr. K.M. testified that he was quite confident these events took place on the Sunday because the wedding took place on a Saturday. Mr. K.M. was quite firm in stating that the initial trip to the hospital took place when they were both initially at work.
[64] While there is no issue about the fact that Mr. K.M. drove the complainant to the hospital, it is very apparent that the initial trip did not take place on the Sunday of the weekend on which the wedding occurred. It is also equally clear that the initial attendance at the hospital did not take place at a point in time when Ms. A.C. was in the workplace. The hospital records document that the initial visit to the emergency department occurred on August 1, 2018, which was a Wednesday.
[65] When confronted with this discrepancy, Mr. K.M. became very argumentative with defence counsel. Given the significant inconsistencies in his evidence and his demeanor in giving evidence, I am not prepared to attach any weight to his evidence. In any event, Mr. K.M.’s evidence was that Ms. A.C.’s left ear was red which does not correspond to the location of the injuries Ms. A.C. said she suffered.
[66] There is, however, some support for Ms. A.C.’s allegations in the evidence of Dr. K.K. who was the emergency department physician at Ross Memorial Hospital who assessed Ms. A.C. on August 1, 2018. At that time he diagnosed that Ms. A.C. was suffering from headache and a concussion. Dr. K.K. was sufficiently concerned that he ordered a CT scan on an urgent basis to rule out an intracranial bleed. This CT scan turned out to be normal.
[67] At the time of his assessment, the patient’s chief complaint was a headache. She also complained of light sensitivity. She further reported to Dr. K.K. that she had got pushed and hit by an assailant.
[68] Dr. K.K. was not specifically advised about the alleged sexual assault. In the evidence of Ms. A.C., she stated that she had decided to wait to see if she had suffered a concussion before reporting the matter to police. It was following the diagnosis of a concussion that police were contacted by her.
[69] In cross-examination, Dr. K.K. agreed that there was no definitive test to determine if someone has a headache. It is a completely subjective symptom. Similarly, photophobia or light sensitivity is based on a patient’s self reporting. Similarly, the allegation that she was hit in the head is based on subjective reporting by the complainant.
[70] All of this leads to the conclusion that Dr. K.K.’s diagnosis of concussion rests largely on the credibility and reliability of the complainant in reporting her history and symptoms.
[71] Dr. K.K. was cross-examined as well on the fact that he found no tenderness or swelling of Ms. A.C.s neck. He stated that if one were choked one “might” find tenderness. He stated, however, that it was equally possible that if someone were choked one might not see any findings. In light of Ms. A.C.’s evidence that the swelling lasted for about a week, this lack of corroboration is concerning, especially in the context of a medical examination.
[72] Dr. K.K. was also questioned about the fact that Ms. A.C.’s complaints included a history of pressure at the back of her head. Dr. K.K. stated that this does not necessarily represent the point of impact for the injury. Dr. K.K. also testified that Ms. A.C. denied any loss of consciousness as a result of the hitting.
[73] Overall I was very impressed with Dr. K.K.’s evidence. He gave his evidence in a straightforward manner and had no hesitation in acknowledging that the basis for his opinion rested on the history and symptoms reported by the complainant which could not be independently verified.
[74] Overall, I found that Ms. A.C. was a credible witness. During her cross-examination she acknowledged a number of facts which she must have recognized went against her interest. For example, her acknowledgement that she may have consented to having oral sex initially with Mr. Mathers was a significant concession. I also acknowledge that if her allegations are accurate, this would have been a very traumatic experience for her. There was also some supportive evidence from Dr. K.K. who made a diagnosis of concussion after seeing her on August 1, 2018. Having said that, Dr. K.K.’s diagnosis was based almost exclusively on self reporting from Ms. A.C. As a result, her ability to accurately recall events and the reliability of her evidence is critical. In this regard, I find that the frailties in her evidence are serious. Also very significant in my consideration is the fact that there is no reliable evidence corroborating the injuries which she says she sustained by either Mr. B.S. or anyone else including Dr. K.K. who medically examined her only several days after the alleged assault.
[75] Based on Ms. A.C.’s reactions to the events which occurred, I am satisfied that something traumatic must have happened to her. Having said that, I am not satisfied that the Crown has established beyond a reasonable doubt the charges alleged against Mr. Mathers.
[76] With respect to Count 1, I am not satisfied beyond a reasonable doubt that Mr. Mathers attempted to choke A.C. with the intent to commit the indictable offence of sexual assault. I have both a reasonable doubt that the alleged choking occurred. I also have a reasonable doubt that Mr. Mathers was attempting to commit the indictable offence of sexual assault, given the lack of any evidence from the complainant concerning the circumstances surrounding the alleged sexual assault.
[77] With respect to Count 2, I have a reasonable doubt about whether Mr. Mathers committed an assault upon Ms. A.C. in relation to the alleged hitting which she says she suffered while performing oral sex on Mr. Mathers.
[78] With respect to Count 3, I have a reasonable doubt that Mr. Mathers committed a sexual assault on A.C. given her evidence that she consented to oral sex. I have a further reasonable doubt as to whether he caused bodily harm to her in connection with the alleged hitting by Mr. Mathers during the time she was performing oral sex on him.
[79] As a result, all charges against Mr. Mathers are dismissed and an acquittal will be entered.
Justice M. McKelvey
Released: October 20, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRAEDON MATHERS
Defendant
REASONS FOR DECISION
Justice M. McKelvey
Released: October 20, 2021