COURT FILE NO.: CR-19-40000322
DATE: 20220609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RONALD TIBANDO
Defendant
Joaquin Canton, for the Crown
Tyler Smith, for the Defendant
HEARD: June 7, 2022
RULING ON MOTION FOR DIRECTED VERDICT
SCHABAS j.:
[1] The accused, Ronald Tibando, is on trial before me on an Indictment that contains six counts, summarized as:
Break and enter “and commit therein the indictable offence of sexual assault with a weapon”;
Sexual assault with a weapon;
Aggravated assault;
Assault with a weapon;
Unlawful confinement; and
Sexual assault.
[2] The Crown’s case is complete, and Mr. Tibando moves for a directed verdict dismissing Counts 1, 2 and 5.
[3] The gist of the evidence from the complainants, Evelina Shatilova and her son Timur Shatilov (“Timur”), is that in the early morning hours of August 30, 2018, at about 3AM, they woke up to find Mr. Tibando had entered their bedroom with a knife which he was pointing at Ms. Shatilova. Ms. Shatilova and her son shared a bedroom and anteroom in the basement of a rooming house. Mr. Tibando was known to them as he rented another room in the basement. They all shared a kitchen and bathroom in the basement.
[4] According to the complainants, Ms. Shatilova cried out and Mr. Tibando told her to be quiet. A brief fight ensued between Mr. Tibando and Timur in which Timur was injured by the knife. Mr. Tibando may also have pushed or grabbed Ms. Shatilova in the struggle as she was also fighting or scratching Mr. Tibando. The fight abruptly came to an end, and Mr. Tibando then directed them to go to his room where he apologized to Ms. Shatilova and her son. Mr. Tibando applied first aid to Timur from a first aid kit he had in his room. The evidence from the complainants is that Mr. Tibando put the knife down on a chest of drawers when they entered his room and he did not touch it or refer to it again. At some point, when Mr. Tibando went to speak to the other basement tenant, Ms. Shatilova hid the knife.
[5] It is also stated by the complainants that, while in Mr. Tibando’s room, Mr. Tibando sat next to Ms. Shatilova on his bed and placed his hand on her upper thigh and on her back and lower back and whispered to her, “I want to fuck you.” Ms. Shatilova testified that at a later point in time that night Mr. Tibando kissed her. All of this was without Ms. Shatilova’s consent.
[6] Over the next few hours the complainants and Mr. Tibando apparently had discussions about how to move on from this incident as neighbours. They cleaned up the blood, Timur had a shower and required new bandages, Ms. Shatilova gave Mr. Tibando some food to eat, and they drank tea. After promising not to report the incident to the police, about four hours after the incident began, at about 7AM, Ms. Shatilova and her son left the house. Later that day they sought medical treatment for Timur and reported the matter to the police, resulting in the charges listed above.
Test on a directed verdict motion
[7] The test on a motion for a directed verdict is well-settled. It is the same test applied at the conclusion of a preliminary inquiry. Since the decision of the Supreme Court in United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at pp. 1079-1080, a judge is to determine “whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” See also R. v. Mezzo, 1986 16 (SCC), [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at pp. 160-161.
[8] In R. v. Arcuri, 2001 SCC 54, the Supreme Court stated that where the Crown’s case is based entirely on direct evidence, there must be evidence on every element of charge. As the Court stated at para. 22, “if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.”
[9] Where there is not direct evidence supporting each element of the charge, the Supreme Court stated that the “question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence.” This requires the judge to engage in a “limited weighing of the evidence” to assess “whether it is reasonably capable of supporting the inferences that the Crown” asks to be drawn. The judge in this context does not draw factual inferences or assess credibility but simply asks “whether the evidence, if believed, could reasonably support an inference of guilt”: Arcuri, para. 23, emphasis in original.
[10] In USA v. Huynh, 2005 34563 (ON CA) at para. 7, the Court of Appeal observed that “[t]he process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess.”
Count #1
[11] The first Count in the Indictment states as follows:
RONALD PETER TIBANDO stands charged that he on or about the 30th day of August in the year 2018 at the City of Toronto in the Toronto Region did break and enter a dwelling house situated at 64 Green Bush Road, Toronto, and commit therein the indictable offence of sexual assault with a weapon, contrary to s. 348(1)(b) of the Criminal Code of Canada.
[12] In this case, based on the evidence of the complainants, there is no evidence that Mr. Tibando committed, or intended to commit, a sexual assault with a weapon in Ms. Shatilova’s bedroom. The evidence is that the complainants awoke to see him standing next to the bed, holding a knife. He said nothing except to “shut up.” He did not touch Ms. Shatilova in any sexual manner. At most, he pushed her away when he was fighting with Timur.
[13] The Crown accepts that this is the relevant direct evidence of the incident in Ms. Shatilova’s room, but argues that Mr. Tibando’s motivation, as seen in his subsequent behaviour, was to sexually assault Ms. Shatilova, and that the continued presence of the knife in his room when subsequent events occurred permits a jury to draw a reasonable inference that Mr. Tibando broke into Ms. Shatilova’s room to commit a sexual assault on her.
[14] In response to this, defence counsel observes that Mr. Tibando is also charged, in separate counts, with sexual assault with a weapon and sexual assault. Counsel submits that the implication of the Crown’s pleading is that Counts #1 and #2 relate to what occurred in Ms. Shatilova’s bedroom, while the subsequent events in Mr. Tibando’s room constituted the simple sexual assault alleged in Count #6 which, it is argued, was a separate and distinct event in the course of the evening. A potential problem with this argument is that the evidence of Ms. Shatilova is that two additional acts occurred that may be sexual assaults – the touching of Ms. Shatilova on the bed, and the kiss.
[15] Leaving aside the question of what Count #2 may specifically relate to, Count #1, which could have been drafted more clearly, alleges that Mr. Tibando intended to “commit therein” a sexual assault with a weapon. Count #1, therefore, clearly relates to the events in Ms. Shatilova’s bedroom.
[16] In my view, the evidence does not support the inference or conclusion that Mr. Tibando committed, or intended to commit, a sexual assault in Ms. Shatilova’s bedroom. The evidence is that Mr. Tibando appeared angry. He had been in disputes with Ms. Shatilova over the cleaning of the common areas of the basement. She wondered why he was there at all, and her son Timur testified he thought Mr. Tibando was there to rob them.
[17] Applying the criteria to be considered in determining whether an assault is of a sexual nature set out in R. v. Chase, 1987 23 (SCC) at paras. 9 - 11, Mr. Tibando did not touch Ms. Shatilova in any sexual way, nor did he violate her sexual integrity. He did not use any sexual language or make any physical gestures of a sexual nature, nor was there any evidence, in Ms. Shatilova’s bedroom, that Mr. Tibando was seeking any sexual gratification. Objectively viewed, and considering the surrounding circumstances, the incident in Ms. Shatilova’s bedroom did not have a sexual dimension at all.
[18] K.L. Campbell J. in R. v. Hodgson, 2016 ONSC 5149 at para. 22, stated that “while it is certainly conceivable that the assault was sexually motivated, other possible explanations are equally plausible.” That is this case. In my view, there is an evidentiary gap between the evidence of Mr. Tibando breaking into Ms. Shatilova’s bedroom brandishing a knife, and the inference that he did so intending to commit a sexual assault. As in Huynh, it is “speculation” or conjecture that Mr. Tibando entered Ms. Shatilova’s bedroom, which she shared with her teenage son, for that purpose, and it is not an inference that is supported in the evidence.
[19] Accordingly, I agree that there must be a directed verdict on Count #1 as framed. However, defence counsel agreed that although the evidence does not support the commission of, or intent to commit, a sexual assault with a weapon, the evidence does support a charge of break and enter with intent to commit an assault with a weapon. Pursuant to s. 601(2) of the Criminal Code, and having regard to the factors in s. 601(4), I direct that Count #1 shall, therefore, be amended to delete the word “sexual.”
Count #2
[20] The second Count in the Indictment states:
RONALD PETER TIBANDO stands further charged that he on or about the 30th day of August, 2018 at the City of Toronto, in the Toronto Region did, in committing a sexual assault on Evelina SHATILOVA, use a weapon, contrary to s. 272(2) of the Criminal Code of Canada.
[21] Section 272(a) of the Criminal Code provides that “[e]very person commits an offence who, in committing a sexual assault, (a) carries, uses or threatens to use a weapon or an imitation of a weapon.”
[22] Although there is evidence that Mr. Tibando was brandishing a weapon when he was in Ms. Shatilova’s bedroom, after returning to his own room with Ms. Shatilova and her son, he put the knife down on a piece of furniture and did not mention it, or use it, again. The circumstances changed when the three of them went to Mr. Tibando’s room where Timur was bandaged, and they began to discuss their differences and how to move on from this event. When Mr. Tibando allegedly touched Ms. Shatilova sitting next to her on the bed, and when he kissed her, he was not carrying, using or threatening to use the knife. It was never mentioned. Ms. Shatilova may well have feared that Mr. Tibando might use, or threaten to use, the knife “in committing as sexual assault”, but there is no evidence that he did so; the evidence is to the contrary.
[23] In these circumstances, and again having regard to ss. 601(2) and (4) of the Criminal Code, I conclude that Count #2, insofar as it alleges Mr. Tibando used a weapon in committing a sexual assault, should be amended to only plead that Mr. Tibando committed the included offence of sexual assault.
[24] In reaching this conclusion I have again considered defence counsel’s submission that Count #2 relates to what happened in Ms. Shatilova’s bedroom. However, Count #2 does not specify where the alleged sexual assault with a weapon took place, and it is at least arguable, based on the evidence, that two sexual assaults took place after the initial incident (the touching and the kiss) – an argument that should be left until the conclusion of the trial when I can receive submissions on that issue.
Count #5
[25] Count #5 states:
RONALD PETER TIBANDO stands further charged that he on or about the 30th day of August, 2018 at the City of Toronto, in the Toronto Region did, without lawful authority confine Evelina SHATILOVA and Timur SHATILOV, contrary to s. 279(2) of the Criminal Code of Canada.
[26] The Crown’s position on this Count is that Ms. Shatilova and her son were forcibly confined by Mr. Tibando who, while holding the knife, required them to go to his room where he closed the door before treating Timur’s wounds with his first aid kit following which he sexually assaulted Ms. Shatilova. There is evidence from both Ms. Shatilova and Timur suggesting that they felt obliged to go to Mr. Tibando’s room. While there, the evidence is that he required Ms. Shatilova to sit on his bed, and that Mr. Tibando told Timur not to look at them. According to Ms. Shatilova, Mr. Tibando also discussed taping Timur up “to buy some time” as Mr. Tibando was concerned that the incident would lead to his arrest and charges against him.
[27] On the other hand, Ms. Shatilova agreed that Mr. Tibando did not say they had to stay in Mr. Tibando’s room, or make any other threats towards them. After about 45 minutes, they moved back to Ms. Shatilova’s anteroom, also described as a kitchenette, where she had some food and which was where Timur was bandaged a second time after he took a shower.
[28] The offence of unlawful confinement was addressed by the Court of Appeal in R. v Parris at para. 46:
Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711, at p. 723. The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.
[29] Mr. Tibando’s counsel’s submission is that the evidence falls short as there is no evidence of coercion and, even if it can be inferred, the complainants’ lack of liberty to leave Mr. Tibando’s room was not “for any significant period of time.” Furthermore, Mr. Tibando must intend to confine them, and it is submitted that the evidence does not support such a finding which would, it is argued, require speculation.
[30] Unlike Count #1, however, in which I found that there was no evidence to support an intention to commit a sexual assault, there is evidence that Mr. Tibando directed the complainants into his room, and that he was holding a knife when he did so, which he continued to hold until they arrived in his room. Further, there is evidence that Mr. Tibando directed the complainants to do certain things in his room, and thereafter, which could support a finding that that he was acting in coercive way to control the complainants’ movement.
[31] The test on a directed verdict is a low one. That a jury “could” make a finding does not mean that it “would” do so, but that must be left to the trier of fact. In my view there is at least some evidence on which a jury could find that Mr. Tibando coercively restrained the complainants.
[32] Similarly, as the complainants testified they were in Mr. Tibando’s room for up to 45 minutes, it is for the trier of fact to determine whether that is a “significant period of time”, having regard to all the circumstances.
[33] Accordingly, the motion for a directed verdict on Count #5 is dismissed.
Paul B. Schabas J.
Released: June 9, 2022
COURT FILE NO.: CR-19-40000322
DATE: 20220609
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RONALD TIBANDO
RULING ON MOTION FOR DIRECTED VERDICT
Schabas J.
Released: June 9, 2022