R. v. Z.R.S., 2022 ONSC 1316

R. v. Z.R.S., 2022 ONSC 1316

COURT FILE NO.: CR-20-27

DATE: 2022-03-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Prosecutor

– and –

Z.R.S.
Accused

Andre Rajna, for the Crown

K. Heathcote, for the Accused

HEARD: February 22, 23 and 24, 2022 at Woodstock

HEENEY J.:

1The accused is facing an indictment consisting of four counts of sexual assault on the complainant P.Y.

2The central facts of the case are that the accused and the complainant began a relationship in high school and lived together for a few years thereafter, which resulted in the birth of their daughter C. in June 2017. They separated in March 2018.

3The complainant described four discrete incidents of sexual assault, one occurring before the separation, and the other three occurring after. She also described a series of other non-specific sexual assaults occurring during the period from March 2018 to March 2019. I will describe these in more detail below.

4The first discrete event is alleged to have occurred in August 2017, while they were living at the complainant’s parents’ residence. She says she was upstairs on their bed watching TV, and the child was on the bed with a cocoon of blankets around her so she wouldn’t roll off the bed. The accused came home from work and had a shower. When he came out of the shower, wearing only a towel, he asked her if she wanted to have sex. She said no, she was not in the mood because the child had been giving her a hard time all day. He said “too bad”, grabbed her calves and pulled her to the side of the bed, and had vaginal intercourse with her at the edge of the bed. She did not consent to this intercourse. Shortly after he ejaculated, she heard a thump and saw that the child had rolled off the bed onto the floor, apparently due to the motion of the mattress during sex.

5The second incident allegedly occurred at the end of March or early April 2018, a few weeks after the separation. She was in the area of the accused’s residence, where he was living with his aunt T.S., having dropped off a friend who lived nearby. They were in communication, and he said “if you are in the area, come pick me up and we can have sex”. She agreed and picked him up. They went to a nearby sideroad and parked. He proposed having anal sex. She said OK, but said if it hurts he had to stop. They got into the back of the SUV the complainant was driving, to the side of where C. was in her baby seat. They proceeded to engage in anal sex, but it was painful and she told the accused to stop. He said “no, this feels good”. She told him at least three more times to stop, and that “I am going to poop on you”. She said he did not stop, and shortly afterward he ejaculated.

6The third incident allegedly happened almost one year later, on Friday March 15, 2019. It took place in the basement of T.S.’s house, where the accused lived. The complainant was dropping the child off at his residence around 4 p.m. for a weekend access visit. She entered his area of the house by way of a staircase that went directly to the basement from the garage. She could have entered the basement through the main part of the house, but rarely did that.

7The complainant sat the child down with her toys to settle her in for the visit. She and the accused talked for about half an hour until she said she was going home. She said the accused looked at her and said “aren’t you forgetting something?” She said “no”. He said “you’re forgetting to suck my dick”. She said “no I’m not, I don’t want to do that, we are broken up”. She said he then pushed her backwards on the bed, straddled her with his knees on her elbows, pulled out his penis and began hitting it against her mouth, which is what she said he did when he wanted a blow job. He then plugged her nose to get her to open her mouth and put his penis in. He thrusted into her mouth for a short time, but was getting frustrated. He got off the bed and pulled her by the calves to the end of the bed. At that point she said “please, no butt, you are going to do what you want to do, but no butt”. He began vaginal intercourse. At this point C. grabbed the complainant’s leg and said “mommy”, and the accused told her that mommy was fine and to keep playing. The accused then pulled out some lube that was sitting on the bed, applied a large amount to the complainant’s anus and some onto himself and then had anal sex with her until he climaxed. She said she never said yes, and did not want to have sex with him. She said there was no point in fighting too hard because he was going to get what he wanted regardless, so it was just a matter of how hurt she would get fighting back.

8The fourth discrete event she described allegedly happened on March 29, 2019, two weeks after the incident just described. She arrived to drop off the child at 4 p.m., and again went to the basement. She remained for about half an hour to 45 minutes playing with the child on the floor. As she was about to leave the accused asked if she wanted to have sex. She said no. He then said “it’s because you have a boyfriend”. She said she doesn’t have a boyfriend, that she is her own person and can make her own decisions, and did not want to have sex. She was sitting on the floor at the time. She said he lifted her up from under her armpits and put her onto the couch. He pulled her pants and underwear down, taking one leg right off so that he could spread her legs, and tried to have vaginal sex with her. It did not work because of the angle, so he grabbed her calves and turned her sideways over the arm rest, so that her legs were dangling over, and her head and torso were leaning on an angle onto the seating portion of the couch. He then started to have anal sex with her, to the point of ejaculation. She said she never said yes and never wanted to participate in this.

9She described other non-specific events having occurred between the incident in the car in March 2018 and March 2019, where they had sexual relations that she did not consent to. She said it happened at least 10 times, but more likely upwards of 15 to 20 times. These took place during access drop-offs mostly, but occasionally during pick-ups, in the accused’s living quarters at T.S’s. Generally, they would all unfold along the same lines: she would bring the child in to him to get settled down; he wouldn’t let her leave without having some type of sex with him; typically it would be anally; typically she would have a pillow over her face or his hands around her neck; and typically she would start crying. She said she always made it very clear she didn’t want to have sex, although later in her testimony she said there were a handful of times where she did say yes, within the first one or two months of that period.

10The accused testified, and denied ever having had non-consensual sex with the complainant. As to the first incident which allegedly happened at the complainant’s parent’s house before the separation, he said that was “100% fabricated”. He said there was never a time when the baby fell of the bed while they were having intercourse. He did recall the child falling off the bed on one occasion, but it was because they were not paying attention.

11He confirmed that at the end of March or early April 2018 the complainant did pick him up in the car so that they could have consensual sexual intercourse. They agreed to engage in anal sex in the back of her vehicle. After the complainant said it hurt, he stopped. They moved her to the rear seat behind the driver’s seat, and he stood outside the door with the door open and had vaginal sex with her. He ejaculated on her stomach, and used his shirt to clean it up. The vaginal sex was consensual.

12As to the incident that allegedly occurred on March 15, 2019, where he forced her to perform fellatio, then penetrated her vaginally and anally, he said that did not occur. Similarly, he said that the alleged incident of March 29, 2019, where they had forcible sex on the couch, was fabricated as well.

13He did indicate that there was consensual sex during the period from March 2018 to March 2019. He estimated that they had sex maybe 12 times during that period, but was not sure. On cross-examination he agreed that since these sexual encounters happened when she dropped off or picked up the child on access weekends, which happened every other weekend or roughly twice a month, they might have had sex as much as 24 times during that period. He said that at times throughout the year the complainant sent him texts saying she was “missing his dick”, although those messages are on an old cell phone that he no longer has, so he could not produce copies of those messages. He also said that when they had sex during access exchanges there were times when the suggestion to have sex came from her not him.

14He strongly denied that he ever had sex with her without her consent. Despite aggressive cross-examination he was firm that if she said “no”, they didn’t have sex. He said he was taught that “no means no” from a very young age. If she said “no”, that was “the bottom line”.

15That completes my review of some of the most relevant portions of the evidence of the complainant and the accused. The only other witness to testify was T. S., the aunt of the accused. I will review portions of her evidence as necessary during my analysis.

16If the allegations of the complainant are accepted as being proven beyond a reasonable doubt, all of the essential elements of sexual assault will have been proven by the Crown on each count. Those elements are that there was the intentional application of force; that the force was sexual in nature, whereby the sexual integrity of the complainant would have been violated; that the complainant did not consent; and that the accused knew that the complainant did not consent, or was reckless or wilfully blind to the lack of consent.

17There was no corroboration of any kind to support the allegations of sexual assault. The Crown’s case stands or falls on the testimony of the complainant. This is a classic case of “her word against his”. Of course, corroboration is not required as a matter of law. I may convict on the uncorroborated testimony of the complainant herself, provided that I am satisfied beyond a reasonable doubt that it is true, and I am left with no reasonable doubt as to the guilt of the accused from the rest of the evidence including, in particular, the testimony of the accused.

18The testimony of the complainant and the accused is in complete conflict on whether these events occurred. However, it is not my task to simply choose one version of events over the other. Instead, I must examine the whole of the evidence to determine whether the Crown has proven its case beyond a reasonable doubt.

19The accused has given testimony denying any criminal wrongdoing. I instruct myself on the principles in R. v. W.D.: if I believe his evidence I must acquit him on all counts. Even if I don’t believe that evidence, if it leaves me with a reasonable doubt regarding an essential element of the Crown’s case, I must acquit. Even if I neither believe his evidence, nor does it leave me with a reasonable doubt as to his guilt, I may convict only if I am satisfied beyond a reasonable doubt on the rest of the evidence that he is guilty.

20This case, therefore, is entirely about the credibility and reliability of the evidence of the complainant and the accused.

21I will deal with the complainant first.

22She was, on the whole, a good witness. She gave her evidence in a straight-forward, intelligible manner. She was not argumentative with counsel, and made concessions when it was appropriate to do so. Her evidence was generally consistent with testimony she gave at the preliminary inquiry and in her statement to the investigating officer on June 24, 2019, but there were several contradictions identified in cross-examination, some more significant than others. For example, she testified that during the incident in the car, she took her own pants off. In her statement to the officer, she said that the accused took his own pants off, then took hers off. When confronted with the contradiction she disagreed with her statement.

23She testified that during the March 15, 2019 incident, when the accused was hitting his penis against her mouth, she did not say anything to him at the time, because if she opened her mouth he would have put his penis in. But at the preliminary inquiry she said “he was like kind of hitting it against my mouth, and I was like I’m not – I’m not going to suck your dick, like I’m not – this is not happening.” Her explanation for the contradiction was that she got the timing wrong. She did say those things but it was before he pulled his penis out.

24There was a related contradiction with respect to her statement to the investigating officer. In that statement she said nothing about the accused banging his penis against her mouth.

25Concerning the March 29, 2019 incident, she testified that she was seated on the floor, and that the accused put his arms under her armpits and lifted her onto the couch. In her statement to the officer, she said he “threw” her onto the couch. When asked for details she said “he would just like take my shoulders and push me”. This is a contradiction, since there is, in my view, a difference between lifting someone off the floor from under the armpits, and pushing someone on the shoulders.

26While these contradictions are, objectively speaking, relatively minor, what is more troubling is the theme that she kept returning to when explaining the contradictions. She said several times that the more she thinks about these events, the more specific details come back. So, when she was asked, on cross-examination, whether her memory of the details has gotten better she said “yes”, that the more she has to remember the details for court hearings the clearer they get.

27It goes without saying that memories generally fade with time rather than improve. The complainant agreed with this proposition when it was put to her during the preliminary inquiry. When new details emerge with each telling, the concern arises as to whether the complainant is remembering these events or instead reconstructing them.

28There is another concern, not with the substance of her testimony but with the circumstances in which these allegations arose. On June 23, 2019, the complainant texted T.S. at 6:12 p.m., complaining that the accused was 11 minutes past the time the court order required C. to be returned, and said she would be contacting a lawyer the next day. T.S. advised that he had left a few minutes earlier. When he arrived at the complainant’s residence, an argument ensued, during which she slapped the accused. He reported this to the police, and the complainant was arrested and charged with assaulting the accused and threatening his girlfriend Alyssa. During her interview with the investigating officer, she told him that she didn’t realize that you could get in trouble for slapping someone, and if she had known that she could have charged the accused multiple times. The officer discouraged her from pursuing that at that time, and she was told to contact the Ingersoll detachment. She did so the next day. While one would have expected, from what she had said, for her to then report instances of having been slapped by the accused on multiple occasions, she instead made the allegations of sexual assault that are now before the court.

29The obvious concern with this timing is that it raises the spectre of a motive to fabricate, where counter-allegations are made in an effort to gain leverage in defending the charges the complainant is facing. In other words, it amounts to fighting fire with fire.

30Another potential motive to fabricate emerges from the complainant’s testimony, during cross-examination, that anything she can use against the accused to protect her daughter she will do. When asked what she meant by that, she explained that C. is adamant that she doesn’t want to go on access visits, cries, and asks her to text daddy to say she is not coming. The complainant went on to say “if there is anything I can do to protect her or prevent her from going, I would do so”. It need hardly be said that a conviction for sexual assault, and the prison term that would inevitably follow, would put a total stop to access visits in the short term, and would have significant implications on access in the long term. In fairness to the complainant, though, the proposition that she fabricated these events for the purpose of terminating access was never squarely put to her during cross-examination, so she had no opportunity to provide a response. While the possibility of a motive to fabricate is still present and can be considered, it would have been preferable to have had the complainant’s response.

31A final area of concern raised by the defence relates to the many alleged non-specific instances of sexual assault, all occurring in the basement of T.S.’s house where the accused resided, when the complainant was in the process of either dropping C. off for an access visit, or picking her up at the end of a visit. Since the accused had access on alternate weekends, he would have had approximately 26 access visits between March 2018 and March 2019. The complainant testified to 2 discrete events of sexual assault at the accused’s residence during this period, coupled with up to 20 additional non-specific events of sexual assault. This means that she was, according to her evidence, sexually assaulted on almost every weekend that she attended at the accused’s residence for an access exchange.

32In her examination in chief, the Crown asked the complainant why she went to the accused’s residence to drop off C. for access visits. She explained that the accused didn’t like coming to her house to pick up the child, nor did her family like him coming there, because there were fights between the accused and her family. It was easier for her to drop C. off at his place, particularly because C. didn’t like going for access visits, and always cried and screamed. She found that if she brought C. inside and stayed with her for a while, C. would settle down.

33Defence counsel was alive to the danger in relying on stereotypes in analysing this evidence, and did not suggest that an adverse inference should be drawn against the complainant because she continued to conduct access exchanges in the privacy of the accused’s basement living quarters, where she was vulnerable to being sexually assaulted. However, counsel suggested that it was open to the court to analyse the reasons given by the complainant for continuing to do access exchanges in that manner, for the purpose of determining whether that explanation is credible.

34It is correct to say that the complainant could have had all of those same advantages by having access exchanges occur in the main part of the house, in the presence of aunt T.S., where the complainant could spend time settling the child down, while also having her own safety and security assured, rather than doing exchanges in the privacy of the accused’s quarters in the basement. Furthermore, doing so would have avoided having the child exposed to their sexual activity, as she sat on the floor playing while the alleged sexual assaults were taking place in the same room.

35T.S. testified that she got off work at 3:15 p.m., and usually went straight home, because she “had no life”. She was home by 4 p.m., except for the odd time when she might go to the gym after work. This was precisely the same time of day that the complainant and the accused had agreed to have access exchanges on Fridays, when most of the sexual assaults allegedly occurred.

36The evidence of both T.S. and the complainant is that they had an excellent relationship. The complainant said they were “very close”, and described her “like my second mom, like my own aunt”. She said T.S. had a good relationship with the child, and “loved her a lot”. T.S. confirmed in her evidence that her relationship with the complainant was “good” and that they were “close”. They communicated regularly on social media, and the complainant regularly sent her Snapchat photos of what C. was wearing or doing that day.

37In short, it appears that T.S. would have been an excellent and available candidate to supervise access exchanges. The problem with the accused’s submission that the complainant’s explanation lacks credibility, though, is that the proposition that T.S. could have supervised access exchanges was never put to the complainant, nor indeed was it suggested to T.S. either, to determine whether it was ever considered, or represented a workable option, or was something T.S. was willing to do. It is difficult to criticize the complainant’s explanation for not having taken advantage of this option when that option was never put to her in cross-examination. Accordingly, I give no weight to this submission.

38I now turn to the evidence of the accused. He was also a very good witness. He gave his evidence in a calm, straightforward and intelligible manner. He was not argumentative with counsel, and made concessions in his evidence when it was appropriate to do so. He was particularly convincing as he described how he had been taught that “no means no” from an early age, and abided by it. His evidence was entirely unshaken despite cross-examination that was, at times, vigorous.

39According to W.D., I must reject the accused’s exculpatory evidence completely in order to convict. I must neither believe it, nor must it give rise to any reasonable doubt as to his guilt. In closing submissions, I asked the Crown whether he was able to articulate any reason why I should completely reject the accused’s testimony.

40In response the Crown pointed to two aspects of the accused’s evidence where there was an alleged inconsistency. The first related to his assertion during cross-examination that if he is having sex with one person, he won’t have sex with another person at the same time. It is not who he is as a person, and is a “loyalty” thing.

41The Crown then pointed him to a passage in the accused’s statement to the police, where the following exchange took place:

Q. Were you having sex with other girls at the same time?

A. Yah.

42The Crown alleges that this is a contradiction with the evidence given at trial. The problem with that argument, as pointed out by defence counsel, is that the passage in question is completely lacking in context. We don’t know when the “same time” is.

43Furthermore, even if it were a contradiction, it is an exceedingly minor one, on a collateral matter and not on an important issue.

44The other alleged contradiction relates to the incident where the parties had anal sex in the complainant’s vehicle. In his testimony, the accused said that when the complainant complained that the anal sex was hurting her, he stopped. They changed positions and proceeded to have consensual vaginal intercourse. In cross-examination, the Crown put it to the accused that in his statement to the police, he never agreed with the police officer that the complainant told him to stop the anal sex. Defence counsel objected, and I agreed that this was an unfair question.

45The passage in question is as follows:

Q. … She’s saying she agreed to it but about mid-way through she asked you to stop, and you didn’t.

A. No.

Q. She said it started to hurt severely, and she told you to stop, and you said no, you’re almost finished.

A. No.

46I disagree with the Crown’s submission that this is a contradiction for the same reason I ruled that the question was unfair. The questions posed by the police officer contained two propositions of fact: first, that she asked him to stop; and second, that he then refused to stop. They were answered by one word: “no”. Did that express disagreement with both propositions of fact, or only the last one? It is certainly capable of meaning that he disagreed with the suggestion that he refused to stop after she asked him to, and indeed that is, in my view, the most likely interpretation. At worst, the exchange is ambiguous, and could never amount to a contradiction that would justify the rejection of the accused’s evidence.

47I find no reason to completely reject the exculpatory testimony of the accused. While I cannot say that I believe the accused, his credible denials do leave me with a reasonable doubt as to his guilt.

48It is open to the court to reject the exculpatory evidence of the accused even where no flaws are found in that evidence. In. R. v. D. (J.J.R.), 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), Doherty J.A., speaking for the court, said the following at para. 53:

The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

49While the complainant was, in general, a good witness, the presence of two motives to fabricate, and the contradictions in her evidence and the explanations given, weaken my confidence in the truth of the complainant’s evidence sufficiently to the point where I cannot justify an outright rejection of the accused’s evidence.

50Having considered all of the evidence, including the credible denials of the accused, I am left with a reasonable doubt as to his guilt.

51It may well be that these sexual assaults, or some of them, did occur. I simply say that the Crown has not proven beyond a reasonable doubt that they did.

52I find the accused not guilty on all counts.

T. A. Heeney J.