Court File and Parties
COURT FILE NO.: CR 19-0218 DATE: January 6, 2022
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MITCHELL JONES Accused
Counsel: William Webber, for Her Majesty the Queen Jordan Tekenos-Levy, for the Accused
Reasons for Judgment
ABRAMS, J
Introduction
1The accused is charged with the following offences:
(a) Count #1 - Mischief under $5000 (damage to wall of the complainant’s residence) on or between September 1, 2017 and September 30, 2018.
(b) Count #2 - Mischief under $5000 (damage to the complainant’s vehicle) on or between May 1, 2018 and October 31, 2018.
(c) Count #3 - Forcible entry at 32 Spring St. Westport, Ontario on or between September 4, 2018 and September 8, 2018.
(d) Count #4 - Sexual assault (intercourse) on or about September 6, 2018.
(e) Count #5 - Voyeurism on or about November 18, 2018.
(f) Count #6 - Sexual assault (moving of shirt) on or about November 18, 2018.
(g) Count #7 - Sexual assault (intercourse) on or about November 23, 2018.
(h) Count #8 - Forcible entry at 17 John St. Newboro, Ontario on or about November 25, 2018.
2The trial was heard over three days: February 3, 2021; February 4, 2021; and June 23, 2021. Final submissions were made in September of 2021.
3At the outset of the trial, identity and jurisdiction were admitted.
4The dates in respect of the alleged offences were also admitted.
5On consent of the parties, four photographs showing damage to the complainant’s Hyundai Elantra were filed as Exhibit #1.
6Further on consent of the parties, an “Extraction Report” containing text messages between the complainant and the accused was filed as Exhibit #2.
7The complainant was the only witness called by the Crown to testify. The accused was the only witness called by the Defence to testify. The principles articulated in R. v. W. (D.) (1991) 63 C.C.C. (3rd) 397 (S.C.C.) (“R. v. W. (D.)”) apply.
Brief Background
8There is no quarrel that the parties were involved in what can aptly be described as an “on again off again” relationship for approximately one year. Neither is it contested that the relationship was toxic in nature, with frequent outbursts of immature and jealous behavior exhibited by both parties.
9On November 26, 2018, the complainant informed the police of the allegations giving rise to the charges, at the same time as she was charged with one count of assault and four counts of assault with a weapon against the accused.
Parties Positions
10The Crown contends that the accused was not a credible or a reliable witness, and his evidence ought to be rejected. Further, the Crown asserts that his evidence does not raise a reasonable doubt.
11The Crown argues that the complainant’s evidence was credible, reliable, straightforward, and consistent. In the Crown’s submission, her evidence ought to be accepted and relied upon in finding the accused guilty, beyond any reasonable doubt, of the offences charged, save for Count #3.
12The Crown concedes that it did not lead evidence with respect to Count #3 and thus invites the Court to acquit on this charge.
13The Defence concedes that Count #2, damage to the 2009 Hyundai Elantra, has been proven beyond a reasonable doubt and thus invites the Court to convict on this charge.
14With respect to the balance of the charges, the Defence contends that the Crown has not proven these allegations beyond a reasonable doubt. The Defence argues that the Court has an obligation to explain, on a crystal-clear basis, a route to conviction for each individual charge. The Defence submits that such a route to conviction cannot be articulated based on the evidence before the Court in accordance with an analysis pursuant to R. v. W. (D.). To that end, the Defence asserts that the Court should not reject the evidence of the accused, and at a minimum, there is reasonable doubt based on his evidence alone.
R. v. W.(D.) [1]
15The Supreme Court of Canada’s decision in R. v. W. (D.) is now thirty years old. In that time, it has probably spawned more appeals than any other decision of the Court. It is certainly referred to as much as any of the Court’s decisions.
16The Ontario Court of Appeal reviewed and re-stated the law in relation to R. v. W. (D.), in a very clear and helpful judgment written by R.A. Blair J.A: R. v. B.D., 2011 ONCA 51.
17To put it at its simplest, the principles emerging from Cory J.’s majority judgment in R. v. W. (D.) concern the application of the Crown’s burden of proving guilt beyond reasonable doubt to the issue of credibility. Cory J. stated (at p. 409 C.C.C.):
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. [Emphasis added.]
18Leaving aside the initial premise, namely, that we are dealing with a case where “credibility is important”, Cory J. went on to set out the required instruction as follows (at p. 409 C.C.C.):
The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.); approved in R. v. Morin, supra, at p. 207.
A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
19The Court of Appeal’s decision in B.D. has also clarified that “conflicting evidence”, and resulting issues of credibility, are not limited to cases where the accused testifies. As in the case before me, R. v. W. (D.) was a classic “credibility contest” where only two witnesses testified. As a result, Cory J.’s model charge refers only to “the evidence of the accused” and “the testimony of the accused” being considered at steps one and two. In R. v. Haroun (1997), 115 C.C.C. (3d) 261 at paras 14-15 (S.C.C.), Sopinka J. held that the R. v. W. (D.) instruction applied broadly to any “defence witnesses”. However, Sopinka J.’s judgment was a dissent and the majority did not address the point. The resulting case law was less than clear on this rather fundamental point.
20In the case of B.D., the accused did not testify. However, there was defence evidence called in relation to the essential elements of the offence and so the Haroun issue was squarely raised. Blair J.A. acknowledged that there was “some uncertainty in the jurisprudence”, as to whether R. v. W. (D.) applied in these circumstances, or whether it applied in a case where no defence evidence is called but where a conflicting exculpatory account emerges through the Crown’s witnesses. After an extensive review of the authorities, he held that the R. v. W. (D.) instruction applies, no matter what the source of the exculpatory conflicting account (B.D., supra at para. 114):
What I take from a review of all of these authorities is that the principles underlying W. (D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt…[Emphases added.]
21In a case like this, then, my assessments of the credibility and reliability of a witness’s evidence are particularly important.
22Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, a credible witness can be honestly mistaken: R. v. C. (H.), 2009 ONCA 56.
23It is important to note; however, that in deciding a case, a judge is not comparing each account and deciding what account to believe. It is also important to note that a judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all of the evidence.
24Further, even if a judge does not believe the evidence given by an accused person or is not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. A judge must always determine based on all the evidence called whether the Crown has proven each element of every offence charged beyond a reasonable doubt, because there is evidence that the judge accepts that supports each element the Crown is required to prove.
25Our law has developed in this way because of the jeopardy accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which he or she is charged. If the evidence is not strong enough to show with the aforementioned degree of certainty that the accused committed the offence, the accused must be acquitted.
Sexual Assault
26As McLachlin C.J. said for the Court in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440: “It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact. From this, it follows that sexual acts performed without consent and without an honest belief in consent constitute the crime of sexual assault.
27A conviction for sexual assault under s.271 of the Criminal Code of Canada requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he or she touches another person in a sexual way without consent. Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question: R. v. Ewanchuk, [1999] 1 S.C.R. 330.
28A person has the required mental state, or the mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question or was reckless or willfully blind to the absence of consent. The accused may raise the defence of honest but mistaken belief in consent if he or she believed that the complainant communicated consent to engage in the sexual activity. However, there are limited cases in which the accused may rely on this defence: J.A. supra at para 24 in reference to Ewanchuk at para 51.
Application of the Law to the Fact
Count #1 – Mischief (damage to the complainant’s wall)
29The accused testified that he hit the paneling on a door in the residence, but that in doing so, he did not cause any damage. He was clear that he did not punch holes in the wall at 32 Spring Street. Specifically, during his examination-in-chief, the accused testified: “I threw my fist to the side, like that, to say like “fuck”, you know what I mean, and do one of those. I didn’t… I didn’t square off to the wall and punch it. I threw my hand to the side, just mad. That’s all I did”.
30The complainant testified that on approximately six occasions, when she and the accused were arguing, the accused punched the wall in the stairwell, with his fist, leading from the first floor to the second floor of her Westport residence. The complainant further testified this caused cracks in the thin wood panelling and it had let go from the wall. However, she did not repair the damage as she wasn’t sure how to do so.
31In these circumstances, the Crown argues that the evidence makes out the offence of mischief contrary to section 430(4) of the Criminal Code, in that the accused wilfully damaged the wall of the complainant’s residence without legal justification or excuse. I do not agree.
32The accused testified that there was no damage caused because of him striking the wall. While I do not necessarily accept the accused’s version of events in respect of this count over the complainant’s, I am still left in reasonable doubt by the accused’s evidence and must therefore acquit.
33For these reasons, the accused is acquitted on this count.
Count #2 - Mischief (damage to the complainant’s vehicle)
34Based on the accused’s admission that he struck the complainants vehicle with his hand and the complainant’s evidence that this resulted in damage, the accused is convicted on this count.
Count #3 – Forcible entry at 32 Spring St. Westport, Ontario
35Based on the Crown’s concession that it led no evidence in respect of this charge, the accused is acquitted on this count.
Count #4 – Sexual Assault (intercourse)
36The accused testified that he attended at the complainant’s residence in Westport on September 6, 2018, where they engaged in consensual sexual intercourse. At one point during intercourse, the complainant began to cry, which is when the accused testified that he stopped. It was then that the complainant disclosed to him a previous negative [sexual] experience she’d had.
37The complainant testified that the accused attended at her Westport residence on the evening of September 6, 2018 and spent the night.
38The complainant testified that she did not invite the accused over that evening. She was already in bed upstairs when he arrived. He came upstairs and got in her bed. She told him that if he was there, she just wanted to be held and that she wasn’t having sex.
39The complainant further testified that the accused started touching her, specifically her breasts. She told him that she did not want him to. He responded by getting on top of her, pulling her hair and telling her that she loved him, and that they were going to make love.
40The accused removed the complainant’s pants. Things progressed to vaginal intercourse.
41At one point, the complainant began to cry because she did not want to have sex and the accused was being rough. In response, the accused asked her why she didn’t like it and why she didn’t love him. Despite her crying, the accused did not stop.
42After intercourse, the complainant told the accused that what he had done reminded her of a previous negative experience she’d had. The complainant testified that the accused was really apologetic.
43The complainant further testified that in texts 154 to 160 of the Extraction Report, the accused was apologizing to her on September 7, 2018 for what he had done [sexually assaulting her] the night before.
44The Crown contends that, based on the complainant’s evidence, as well as text messages 154 to 160 in the Extraction Report, the offence of sexual assault is proven beyond a reasonable doubt. Specifically, the Crown argues that the accused proceeded to have vaginal intercourse with the complainant despite her telling him that she was not consenting to it. Recognizing what he had done, the accused continued to apologize to her into the following day, describing what he had done as “unspeakable” and telling the complainant that he just wanted to make love to her. I do not see it that way.
45The text messages start on September 4, 2018 and continue to November 26, 2018, the morning of the complainant’s arrest for the crimes she was alleged to have committed against the accused.
46While not necessarily dispositive of the issues, I find that nowhere in these three months of text messages does the complainant ever allege that the accused forced his way into her home.
47Further, nowhere in these text messages does the complainant ever allege that she was sexually assaulted by the accused. Again, while alone not dispositive of the allegation, there is not a single mention of her being upset about forced sexual intercourse.
48Text message #154 is the first text after the allegation of sexual assault, which the complainant claims took place on September 6, 2018. The accused testified regarding his explanation for this passage of text messages, specifically:
Text #154 accused to complainant: “I’m so sorry babe. I hope you can forgive me, I’ll never stop loving you.”
Text #155 complainant to accused: “Forgive you for what?”
Text #156 complainant to accused: “not just holding me like I wanted or everything else”.
Text #157 accused to complainant: “Everything I hate myself, you’re the love of my life and I did something unspeakable in my eyes. You deserve better babe, I’m so sorry.
Text #158 complainant to accused: “You didn’t do anything but refuse to hold me when that’s all I wanted”.
49The Crown asserts that this exchange is conclusive proof of the accused apologizing to the complainant for sexually assaulting her the night prior. In my view, the exchange is equally consistent with the accused apologizing for being insensitive to the complainant’s need to be held: “You didn’t do anything wrong but refuse to hold me when that’s all that I wanted.”
50The accused was asked in Court about doing something “unspeakable”, taken from the above passage. He testified that when the complainant appeared visibly upset, he stopped the sex. He saw her crying and he stopped. He testified that he became upset because he was enjoying the sexual contact. He did not know about the complainant’s past negative experience, until she disclosed it to him. When she explained her past, he immediately began to apologize for being mad with her, which he continued to do the following day in their exchange of text messages.
51Text #159 accused to complainant: “I’m sorry I just wanted to make love to you. It’s not just sex for me, I’m sorry you don’t feel the same”. In my view, this message is consistent with the accused explaining why he “freaked out” on the complainant when she began crying.
52Text #160 complainant to accused: “sometimes it is but when someone just wants to be held then just fucking do it without freaking out”. In my view, this message is consistent with the accused’s reference to him “freaking out” as the “something unspeakable” referenced in Text #157. To that end, the accused testified that he cried with the complainant that night, after learning more about her past, which the complainant did not dispute.
53Text at #161 complainant to accused: “Anyways hope you and the hippo and the kids have a good weekend ttyl”. In this message the complainant is sarcastically extending her well wishes to the accused to have a good weekend with his former partner, who the complainant referred to as “the hippo”, the morning following the alleged sexual assault.
54When I consider all the evidence from the parties including, inter alia, the complainant’s contemporaneous statements to the accused: “Forgive you for what” …“Not just holding me like I wanted or everything else” and “You didn’t do anything but refuse to hold me when that’s all I really wanted”, I must conclude that there is reasonable doubt as to the allegation of sexual assault on September 6, 2018.
55To recall from B.D., supra: “Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.” In my view, the complainant’s contemporaneous statements to the accused “Forgive you for what” and “You didn’t do anything but refuse to hold me”, which I attribute greater weight to than her viva voce evidence at trial, must be resolved in favour of the accused in finding reasonable doubt.
56For these reasons, the accused is acquitted on this count.
Count #5 – Voyeurism
57On November 18, 2018, the accused is alleged to have committed Voyeurism under Section 162 of the Criminal Code, as well as sexual assault under Section 271 of the Criminal Code. The two offences arise out of the same fact situation.
58The accused testified that he had slept over the night before, the children were present but sleeping elsewhere in the home, and that he was only wearing pajama pants at the material place and time of the alleged offences.
59The accused testified that when he awoke, the complainant, who was lying next to him in bed, had her eyes closed and was apparently asleep, specifically: “Okay, so like usual, I wake up and I would admire her every morning. I would just lay there, and I would pet her face and stroke her. Like you know what I mean? No sexual intent at all, other than just in love with this woman. And that’s how this morning started, the same as always. I rolled over and I’m admiring her laying there, and her breast was already exposed. She had a light-blue muscle shirt on, and her breast was fully exposed, the armful (sic), I guess, you’d call it. And what I’m apologizing for and when I say “I did pull your shirt over”, I didn’t pull it over with any other reason than I was rubbing her face with my hand and then I’d rub her shoulder and her neck and just kind of like the upper part of her, not in a sexual way, just loving her. So when I say “I pulled it over”, I, in fact, kind of pushed it over while rubbing her neck and shoulder. I didn’t do it for any other reason. I didn’t do it for any reason. I was just rubbing her shoulder and neck”.
60Where the accused mentions apologizing, he is referencing Text #1609, wherein he said to the complainant: “I’m sorry babe plz don’t hate me cause I thought you were the sexiest woman ever. You don’t have to hate me. I did not take a pic of your tit babe that’s not fair. I did pull your shirt over and look at it. Your gorgeous!! I want you to be happy Jocelyn. In the past 2 months all I’ve said is that mullville guy was bothering me, and I shouldn’t have. I want you to be happy, plz don’t hate me babe. I love you”.
61The complainant testified that she woke up in her bed when the accused was downstairs with the kids. The accused had spent the night on November 17, 2018.
62The complainant testified that she continued lying in bed with her eyes closed. She was on her left side. She was wearing a spaghetti strap shirt, which was a little looser fitting. She then heard the accused come up the stairs, attend the side of her bed, when he pulled the front of her shirt down so that one of her breasts was out. She then heard the click of a cellphone camera close to her face, which led her to believe that he had taken a picture of her breast.
63The complainant testified that the accused went back downstairs and that she waited a few minutes before getting up and getting dressed. She testified she did not confront the accused about it (the picture taking) until later in the day when he had taken his children back to their mother and she had put her child to bed.
64During cross-examination, Defence counsel presented the complainant with the accused’s phone and made a clicking sound. The complainant confirmed the clicking sound as the sound she heard on November 18, 2018. Defence counsel then demonstrated that the sound was created by pressing the side button that shuts off the phone screen, as opposed to operating the camera. Moreover, the complainant testified that no photo of her breast was ever found, despite her having looked through the accused’s phone.
65The Crown says that the evidence establishes the complainant was in her bed and, from the perspective of the accused, she was sleeping. She was also wearing a loose-fitting spaghetti strap shirt. On that much the parties agree.
66The Crown argues that it need not prove that the accused did in fact take a picture of the complainant’s exposed breast with his cellphone camera, as voyeurism can also be made out where the accused “surreptitiously observes,” as is indicated in the Indictment. In this case, the Crown contends the accused did just that, because he believed the complainant to be sleeping and he moved her shirt to expose her breast and observe it. I do not agree.
67I find that the parties went to bed together on the evening of November 17th and were lying next to each other on the morning of November 18th.
68The accused awoke prior to the complainant.
69They agree that the complainant never opened her eyes during the entire event.
70They agree that the complainant was wearing a loose-fitting top, which the complainant described as a spaghetti strap top. The accused referred to it as a muscle shirt type top.
71The accused’s version is that one of the complainant’s breasts was exposed through the armhole and that he admittedly brushed the strap away while massaging her neck and shoulder, fully exposing her breast. He does not contest the fact that he looked at her exposed breast.
72The complainant’s version is that, with her eyes closed, but apparently conscious of what was transpiring, the accused came to her side of her bed and pulled the front of her shirt down so that one of her breasts was out. She then heard the click of a cellphone camera close to her face, which led her to believe that he had taken a picture of her breast.
73First, the complainant never saw the accused take a picture of her breast, or at all. Rather, she assumed that he had done so because she heard a “click”. In my view, given the complainant’s concession during cross-examination that the sound she heard was the same as that made by the phone being turned off, I cannot conclude beyond a reasonable doubt that the accused took a photograph of her exposed breast, or at all.
74Second, while I do not necessarily believe the accused’s description of the manner by which he brushed aside the complainant’s strap during his massage of her neck and shoulder, the complainant’s description of her loose-fitting shirt, which is consistent with the accused’s evidence, leaves me with reasonable doubt that the breast he observed was exposed because of some action taken by him. Accordingly, if the Crown is correct that, as a matter of law, the charge is made out by the accused moving the complainant’s shirt to expose her breast, so as to surreptitiously observe it, I am not persuaded beyond a reasonable doubt that the breast he observed was because of something he did. Further, I am not persuaded beyond a reasonable doubt that there was anything surreptitious about the observation. Put simply, the evidence is equally consistent with the breast being in plain view due to the nature of the complainant’s loose-fitting top.
75For these reasons, the accused is acquitted on this count.
Count #6 - Sexual assault (moving of shirt)
76Given that this count arises out of the same fact situation as count #5, I apply the same fact finding set out above.
77Against that backdrop, the accused testified that he did not intend anything sexual by the touching. Rather, he was simply admiring the complainant as he massaged her neck and shoulder. Further, he testified that he did not touch her breast; he touched the strap of her shirt as he was massaging her. Notably, the touching of the shirt is somewhat consistent with the complainant’s evidence: he pulled the front of her shirt down. She did not testify that he touched her breast.
78The Crown argues that this was a touching made in circumstances of a sexual nature where the complainant’s sexual integrity was violated. The complainant did not consent to the touching. There was no communication between the two at all in the bedroom. From the accused’s perspective, the complainant was asleep. To consent to sexual activity, a person must be conscious throughout the sexual activity. Therefore, a person cannot consent to sexual activity when they are asleep: R. v. J.A., 2011 SCC 28.
79Based on the evidence of the accused and the complainant, I cannot conclude beyond a reasonable doubt that the touching was of a sexual nature. First, the accused’s description of having only touched the strap of the shirt is consistent with the complainant’s evidence that he touched only her shirt. Second, the accused denied the touching was for a sexual nature. While I remain sceptical about his intentions in brushing aside the strap, even though I may not necessarily believe him, I am left in doubt by his evidence and therefore must acquit on the charge of sexual assault.
80The accused is, however, found guilty of the lesser and included offence of assault, for the following reasons. Assault is defined in section 265 of the Criminal Code. It states:
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
81Based on the accused’s evidence, I have no doubt that he applied force to the complainant directly by touching her face, neck, and shoulder. The complainant did not consent to this touching and could not have consented because she was asleep, or apparently asleep with her eyes closed, which the accused was aware of. In my view, the essential elements of the offence of assault simpliciter are thus proven beyond a reasonable doubt.
Count #7 - Sexual assault (intercourse)
82The accused testified that he attended at the complainant’s residence on the evening of November 23, 2018, where they had consensual intercourse. The accused testified that the nature of the parties’ exchange of text messages thereafter raises a reasonable doubt as to whether the allegation actually occurred as the complainant claims, specifically:
Text #1738 accused to complainant: “Be there in 25”.
Text #1739 accused to complainant, which is evidently the first text between the two, the next morning: “I have to work babe. Sorry I’m not there when you wake up. I’ll come home whenever you want. I know you were drinking last night, but I also know you love me and I’d do anything for you. I want you to be happy babe. You’re the love of my life”.
Text #1740 complainant to accused: “Working on a Saturday, you haven’t done that in the last three months. Have fun with her”.
Text #1750 complainant to accused: “I keep it going by crushing you? That’s your biggest problem you want to blame everything on everyone else, ‘you must do no wrong’ you freak, call me names, and break shit, all before I even loose (sic) it. My mental health issues start and end with you. If I don’t have you treating me like shit calling me names I’m good, so ya just stay gone then”.
Text #1752 complainant to accused: “you have a sex problem, you think it should be handed out on a silver platter for you every night and spazz when you don’t get it”
Text # 1768 accused to complainant at 8:59am on November 24th, the morning after the alleged forced intercourse: “it actually felt like you missed me and needed me last night. It was just cause you were drinking eh. I do want to come home and I do want things to change, I’ll never hold anyone like I hold you and I wouldn’t forgive myself if I gave up on that feeling. You say I won’t get help to try to change but I’ll do anything for you. It just feels like I’m not worth it to you”
Text #1769 complainant to accused at 8:59am: “Because I did miss you and need you, but no I’m not going back to the same shit you work on you first.”
83The Defence argues that, in the circumstances, Text #1769 is particularly telling against the complainant. First, the text message is contemporaneous, and thus allows the Court a unique and private perspective into understanding the truth of the matter. To that end, the complainant tells the accused that she missed and needed him the morning after she alleges, he sexually assaulted her. Second, the timely text messages from the morning after make no mention of sexual assault.
84The complainant testified that when she confronted the accused about the incident of November 18, 2018, she also told him that she was done with the relationship. In the days that followed, the accused moved his items out of her home.
85The complainant testified that the accused attended her residence on the evening of November 23, 2018, despite her not wanting him there. When he arrived, she was in bed. The accused entered the house and came into her bedroom.
86Despite the complainant questioning why he was there and telling him to get out, the accused did not leave. Instead, he crawled into bed with her.
87The complainant testified that the accused told her they were going to make love. Admittedly, she testified that she does not remember responding to this, but testified that she is sure she said no. She did not want to make love with the accused.
88The accused got on top of her and had vaginal intercourse with her. She remembers just lying there; she did not move. She did not say anything to him during the sexual contact. Whenever it was over, she rolled over and went to sleep.
89The complainant testified that she believes the accused spent the night at her residence, but he was gone when she left home in the morning.
90The complainant acknowledged that she had been drinking that evening, and as a result, she does not remember a lot of what was said.
91The complainant testified that she never confronted the accused about what happened the night before.
92In the Crown’s submission, the evidence of the complainant makes out the offence of sexual assault. The accused engaged in vaginal intercourse with the complainant despite the absence of any communicated consent by her. Further, the evidence demonstrates that the accused dictated that they were going to make love and that he proceeded to do so, despite the complainant not wanting to have sex and despite her simply lying there and saying nothing. I do not share the Crown’s view, for the following reasons.
93I remind myself that every complainant of a sexual assault will react and report differently. Some complainants take years to come forward, for legitimate reasons. The complainant in this case, however, came forward only after she herself was charged with crimes against the accused.
94Text #1921 accused to complainant at 2:47am, November 26, 2018: “Fuck babe they are going to charge you. I begged them not to but they have no choice. I’m sorry, I’ll do everything I can to get them dropped”.
95Text #1922 complainant to accused: “You’re fighting an army, we’ll see about that I’m definitely not worried”.
96The accused testified during his examination in chief testimony that: “She was making all kinds of allegations and threats, like basically saying she’s going to destroy my life. And a lot of it, she doesn’t say it, but it stems from jealousy from Crystal and the car. That was her whole problem that night was because of that Mustang being in ‘her fucking yard’, she said”.
97When asked why the accused called the police, he testified: “Well, because I was… I was scared, I didn’t know what to do. She was threatening to have me charged with sexual assault, after the so-called allegation of the picture of her breast and because of the crying night, which is out of context.”
98Text #133 complainant to accused: “You don’t even know me or what I’m capable of”.
99In considering all the evidence, the Court cannot ignore, in my view, the possibility of a motive to fabricate on the part of the complainant.
100Again, credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue.
101To that end, I do not find the complainant to be a particularly accurate historian regarding the events of November 23, 2018. First, she testified that she did not remember responding to the accused’s overture to “make love”, but then testified that she’s sure she said no.
102She acknowledged, however, that she had been drinking that evening and as a result does not remember a lot of what was said. In my view, text #1768 corroborates the accused’s evidence that the complainant wanted him to attend her residence, and that she had been drinking, where he said: “it actually felt like you missed me and needed me last night. It was just cause you were drinking eh”. In text #1769, the complainant confirms: “Because I did miss you and need you….”
103To recall, a judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all the evidence. A credible witness can be honestly mistaken: R. v. C. (H.), supra.
104I find that the complainant was doing her best to be truthful during her evidence at trial, yet her ability to recount the events in issue in relation to this count is suspect. Moreover, when compared with her contemporaneous statements made to the accused the day following the alleged forced sexual intercourse, when to me her primary concern was her belief that he was seeing his former partner, as opposed to working, I give greater weight to the accuracy of the text messages than her evidence at trial.
105When I consider all the evidence, I am left in reasonable doubt by the evidence of the accused, and the suspect nature of the complainant’s evidence related to her unreliability. Further, to compound matters, there is the possibility of a motive to fabricate, given the timing of her complaint relative to being charged with crimes committed against the accused.
106For these reasons, the accused is acquitted on this count.
Count #8 - Forcible entry at 17 John St. Newboro, Ontario
107The accused testified both in relation to this count and count #3, that he simply walked into the residences. Indeed, there is no evidence that he physically forced his way into the residence on this or the other occasion.
108The accused testified that he had completed renovations at 17 John St. in partial consideration for the couple moving into the residence. Further, he testified that he paid rent (intermittently), while he was in this “on-again off-again” relationship with the complainant.
109The Defence argues that at no point did the accused make a violent entry to 17 John Street. Neither did he threaten violence on his way into the home, which is supported by the evidence of both parties.
110Section 72(1) of the Criminal Code reads: “A person commits forcible entry when that person enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace”.
111R v Czegledi (1931) 55 CCC stands for the proposition that forcible entry requires some violence, or threatened violence, and the presence of someone who might resist.
112The complainant testified that when the accused arrived, she was on the phone with a friend. She was in the kitchen and her doors were unlocked.
113The complainant testified that the accused entered through the front door of her home, he did not ring the doorbell or knock on the door. He let himself in.
114The complainant testified that shortly after he walked in, she told him to get out.
115The parties engaged in an argument that led to the complainant getting physical with the accused, which resulted in her being charged by the police.
116After this incident, text messages were exchanged between the parties. The Crown contends that text messages 1915 and 1916 corroborate the complainant’s evidence that she did not want the accused in her home.
117The Crown asserts that the text messages exchanged between the parties on November 25, 2018, assist in establishing the circumstances in which the accused attended the complainant’s home later in the evening. Beginning with text message 1842, the Crown says it’s clear that in the morning, the parties discussed the removal of the accused’s items from the complainant’s home. Further, the Crown submits that the accused was clearly aware the complainant was done with the relationship and that she wanted him gone.
118Despite the number of times the complainant told him that she did not want him at her home, he continued to text her asking if he could come home and talk. At text message 1902, despite having received no responses from the complainant, the accused tells her to either tell him that she wants him gone or he is coming to hold her. He then tells her that he is coming.
119In the Crown’s submission, the evidence of the complainant, when coupled with the text messages from the Extraction Report, make out the offence of forcible entry contrary to section 72 of the Criminal Code.
120The Crown argues that forcible entry involves an interference with the peaceable possession of a person in actual possession of real property. The purpose of the provision in the Criminal Code is to prevent confrontation with a person who is in peaceable possession of property: R. v. Starr, 2019 NBCA 41 at paras 15-16. Further, the entry does not require force to be used.
121In my view, the particular circumstances of this case are critical to my analysis in respect of this count.
122To recall, it is uncontested that the parties were involved in what can aptly be described as an “on again off again” relationship for approximately one year, which I find included them residing together in some loose arrangement at 17 John St.
123To that end, I accept the accused’s evidence that he completed renovations to the residence as partial consideration for the parties moving in.
124Neither is it contested that the relationship was toxic in nature with frequent outbursts of immature and jealous behavior exhibited by both parties. To speak plainly, it was an unhealthy relationship.
125As a result, it was not unusual, in my view, for the accused to be in or out of the residence, so to speak, depending on the vacillating nature of the parties’ moods and their status as a couple.
126It is against this backdrop that the accused arrived at 17 John St. on the evening of November 25th to patch things up, which on all the evidence was not unusual. Further, he opened the door and walked into the residence as he would on any other occasion for the purpose of making amends with the complainant.
127I do not accept the Crown’s submission that the accused attended at the residence for the purpose of interfering with the complainant’s peaceful possession of the property. Rather, he went there to make up with the complainant in keeping with the toxic nature of their “on again off again” relationship. That said, the accused was imprudent in attending at the residence in circumstances of the complainant having consumed alcohol, which resulted in her assaulting him.
128In summary, in keeping with the R. v. W. (D.) analysis, I believe the evidence of the accused on this count and therefore must acquit.
The Honourable Mr. Justice B. W. Abrams Released: January 6, 2022
1Substantial credit for this section must be given to Code, J. in respect of a paper he prepared for the Ontario Superior Court Spring Conference in 2011.