COURT FILE NO.: CJ 101386
DATE: 2022-06-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.E.P.
Defendant
M. Ernewein, for Her Majesty The Queen
D. Woodbeck, for the Defendant
HEARD: April 4, 5, 6, 7, and 11, 2022
the honourable Mr. justice M.J. Valente
reasons for judgment
[1] The accused, D.E.P., is charged with three offences alleged to have been committed against the complainant, R.L., as follows:
Count 1, as amended: Between the 4^th^ day of October, and the 5^th^ day of October, in the year 2019, at the Township of Wilmot, in the said Region, did commit a sexual assault on R.L., contrary to Section 271 of the Criminal Code of Canada;
Count 2, as amended: Between the 4^th^ day of October, and the 5^th^ day of October, in the year 2019, at the Township of Wilmot, in the said Region, with intent to enable himself to commit the indictable offence of sexual assault did attempt to choke R.L., by physical force contrary to Section 246(a) of the Criminal Code of Canada, and
Count 3: On or about the 6^th^ day of October, in the year 2019, at the Township of Wilmot, in the said Region, did commit a sexual assault on R.L., contrary to Section 271 of the Criminal Code of Canada.
[2] The accused was tried on the three indictments without a jury on April 4, 5, 6, 7 and 11, 2022.
[3] Five people testified during the trial. The Crown called the complainant, R.L. (the “complainant”), Constable Reid Pridham, the complainant’s friend, J.B., and Constable Joseph Komadoski. The accused, D.E.P. (the “accused”), testified on his own behalf.
Summary of the Evidence
A. Evidence of the Complainant
The complainant testified to the following:
[4] She is 35 years old. She is studying dietetics at university. She believes she is in her third or fourth year of the program.
[5] She first met the accused when he rented a room in her grandmother’s house some six years prior to the alleged assaults in 2019. The accused subsequently rented a room in the home of her mother and stepfather. The accused had, however, moved from the complainant’s parents’ home at the time of the alleged assaults.
[6] She and the accused had been in an “on and off” relationship for one-and-a-half to two years prior to the alleged assaults.
[7] The complainant’s mother did not approve of her relationship with the accused to the point that any contact between the complainant and the accused was covert.
[8] On the morning of Friday, October 4, 2019, the complainant had consumed five alcoholic coolers. She, her mother, and stepfather had an altercation.
[9] The police were called. Constable Pridham encouraged the complainant to leave her parents’ home for a few days to permit tensions to cool. The complainant acceded to Constable Pridham’s advice, packed some clothes and went to the accused’s residence.
[10] She arrived at the accused’s home at approximately 11:00 a.m. with her clothes, her cell phone but not her laptop computer.
[11] Upon her arrival at the accused’s home, she immediately went to sleep in the accused’s rented upstairs bedroom until after the dinner hour at which time the accused brought her some pizza and alcoholic drinks.
[12] She described the drinks as tall cans of an alcoholic cooler drink known as “Margaritaville,” containing seven per cent alcohol. The complainant does not recall how many cans she drank but she recalls drinking “quite a few of them”, causing her language to be slurred and impacting her motor skills.
[13] After eating and drinking, she believes she fell back to sleep for a half an hour. Once awake, she went downstairs to find a group playing poker at which time the accused gave her one red pill and two white pills.
[14] Although she did not know what the pills were, the complainant assumed they were pain killers because she had previously told the accused that she had back pain. The pills caused the complainant to be “confused” and with “foggy thoughts”.
[15] Following the departure of the poker party guests, the accused joined the complainant in his bedroom to which she had already returned and was lying in bed dressed in the accused’s boxer shorts and t-shirt.
[16] They consensually kissed after which the complainant denies saying she was “horny” as alleged by the accused.
[17] Consensual kissing was followed by the accused performing oral sex on the complainant. The complainant consented to the oral sex.
[18] She testified that the accused suffers from erectile dysfunction, but she is able to cause the accused’s penis to become erect.
[19] After the accused performed consensual oral sex on her, the complainant performed oral sex on him to cause his penis to become erect. The accused applied force to the back of her head to force his penis in her mouth.
[20] Once erect, that accused engaged with the complainant in nonconsensual vaginal intercourse with the complainant on her back and the accused on top of her. The complainant testified that she told the accused to stop but “he kept going”, became angry and flipped her over from her back to her hands and knees at which time, the accused engaged in non-consensual anal sex.
[21] While performing anal sex and to assist penetration, the accused’s hands were both around the complainant’s neck at one point and on her writs at another point but mostly on her wrists. Photographs of bruising of the complainant’s wrists and forearms, taken at the Brantford Hospital on October 8, 2019, were offered into evidence. It is the evidence of the complainant that the bruising was the result of the accused’s forcible anal intercourse. The pain from the bruises lasted for approximately one week.
[22] The anal intercourse concluded with the accused ejaculating on the complainant’s back after which she went to sleep.
[23] The next morning, she woke up at approximately 11:00 a.m. She was hung over, her brain was “foggy”. She was naked in bed. Lying next to her, the accused had an erection. After the complainant greeted the accused and without further discussion, the accused again performed anal sex on the complainant without her consent.
[24] According to the complainant, the forced anal intercourse happened “extremely quickly.” It concluded with the accused ejaculating on the complainant as he had the night before.
[25] After the accused had left the bedroom, the complainant decided she needed to leave. She called a friend, J.B., whom she had previously met at a detox facility, to pick her up and take her to his home.
[26] She used her cell phone to make the call and “explained briefly to him what had happened”. She does not recall asking J.B. to pick her up the next day, on the Sunday.
[27] Until she was picked up by J.B. on Sunday, October 6, 2019, she stayed with the accused and drank “Margaritaville” coolers without any further incidents of sexual assault.
[28] J.B. arrived with his mother at dusk on October 6^th^, to collect the complainant. Before they left, the accused thanked both J.B. and his mother for picking up the complainant.
[29] She stayed with J.B. at his parents’ home for a few days during which time they drank “quite a bit”. The complainant admits she struggles with alcohol.
[30] After telling J.B. about the alleged sexual assaults, J.B.’s mother called the police. When the police arrived on October 8, 2019, she was intoxicated and lying under a tractor.
[31] The police had her transported by ambulance to hospital. At the second of two hospitals, the Brantford General Hospital, the complainant was interviewed by a nurse. She was intoxicated at the time she was transported to hospital but when she was later interviewed by the nurse, the complainant was sober with a hangover.
B. Evidence of Constable Reid Pridham
Constable Pridham was the second witness called by the Crown who testified to the following:
[32] He arrived at the complainant’s home at approximately 9:00 a.m. on Friday, October 4, 2019.
[33] He observed the complainant to have a slight slur in her speech and the odour of alcohol on her breath. The complainant advised him that she had consumed 5 alcoholic coolers that morning.
[34] The complainant had had a dispute with her mother and stepfather regarding her cell phone. The complainant’s mother would not return the complainant’s cell phone to her, resulting in a struggle.
[35] The complainant advised that her stepfather had pushed her causing her to hit her head and tailbone.
[36] The situation was mitigated by him encouraging the complainant to stay somewhere else for a few days.
[37] He and his partner drove the complainant to the home of the accused at approximately 10:30 a.m. While the complainant’s cell phone was returned to her in his presence, Constable Pridham does not know if the complainant left with it or her laptop.
C. Evidence of J.B.
J.B. testified to the following:
[38] J.B. met the complainant three years prior to the alleged sexual assaults at an alcohol treatment program.
[39] The complainant telephone J.B. at least twice on Saturday, October 5, 2019. On one such occasion she advised J.B. that she was in a “toxic environment” and in a subsequent call, she advised J.B. that she did not feel safe.
[40] J.B. offered the complainant to stay with him at his parents’ house. For reasons that the complainant did not explain, she advised J.B. that she could not immediately leave where she was but suggested that she be picked up the following day, on Sunday, October 6, 2019.
[41] When J.B. and his mother arrived at the accused’s home the next day around supper time, the complainant was “down and depressed”. She “had a few drinks but not wasted”.
[42] Prior to leaving the accused’s house with the complainant, the accused came out to the car to enquire where the complainant was going and to thank J.B. and his mother for coming to get her.
[43] J.B. and the complainant were “not good influences for each other” because they both consumed alcohol while the complainant stayed with him at his parents’ home.
[44] It was not until J.B. attended Norfolk General Hospital (the first of the two hospitals attended by the complainant on October 8, 2019,) that J.B. saw the bruises on the complaint’s arms. It was also at the Norfolk General Hospital that the complainant advised J.B. that “she was taken advantage of”.
D. Constable Joseph Komadoski
The fourth witness called by the Crown was Constable Joseph Komadoski who testified as follows:
[45] He attended the home of J.B. on Tuesday, October 8, 2019, at 6:18 p.m. in response to an unwanted person call. He spoke with J.B.’s mother, L.B., who advised him that she wished the complainant removed from her home.
[46] When he first observed the complainant, she was seated on the ground under farm equipment. It required both he and J.B. to remove the complainant from under the farm equipment.
[47] Constable Komadoski detected a strong odour of alcohol on the complainant and he observed she had slurred speech and difficulty walking. He also observed injuries on the complaint’s left and right wrists and large bruises on her inner legs.
[48] The complainant told Constable Komadoski that she was assaulted by her mother and had an image on her cell phone. She also advised Constable Komadoski that she was assaulted by her stepfather and, as a result of this assault, injured her tail bone and wanted her stepfather charged.
[49] He never saw the image on the complainant’s cell phone as described by the complainant.
[50] The complainant advised Constable Komadoski that she was sexually assaulted by the accused on Sunday, October 6, 2019, and at the time of the assault, she was wearing a pink and black dress and the accused used a condom.
[51] Based on this information, the complainant’s pink and black dress was seized for forensic examination.
[52] Initially the complainant did not want to pursue the matter of the sexual assault but ultimately agreed to go to the hospital to be check out.
[53] Constable Komadoski called an ambulance for the complainant and accompanied her to Norfolk General Hospital and ultimately to Brantford General Hospital.
E. Caitlin Christie
The final witness called by the prosecution was Caitlin Christie who testified to the following:
[54] She is a registered nurse and a sexual assault examiner at the Brantford General Hospital.
[55] She interviewed and assisted the complainant at approximately 11:45 p.m. on October 8, 2019.
[56] Along with emotional support, she provided options of care to the complainant. The complainant declined forensic testing and instead opted to have photographs taken of her injuries (which were entered as exhibits and previously described), the assault documented and a safety plan provided to her.
[57] In her opinion, the complainant was not under the influence of alcohol and she had no concerns that the complainant’s recollection was clouded.
[58] The complainant advised her that she was sexually assaulted on October 6, 2019, at 10:00 p.m.
[59] Caitlin Christie competed a standardized form questionnaire regarding the alleged sexual assault based on the responses provided by the complainant (the “Form”). The Form was completed and signed by the complainant at 3:26 a.m. on October 9, 2019.
[60] She did not take a full and complete statement from the complainant.
[61] Some of the complainant’s responses to the Form’s questions, as recorded by Caitlin Christie, included the following:
a) there was penetration by finger and penis but not a foreign object;
b) the complainant was strangled from the front by the accused using his right hand;
c) the complainant was smothered with the accused’s left hand;
d) the complainant was not experiencing a sore throat or neck pain and nor did she have difficulty breathing.
[62] In the opinion of Caitlin Christie, it is common for strangulation victims not to experience a sore throat, neck pain or have difficulty breathing.
[63] The complainant did not have an opportunity to review the completed Form before signing it.
F. Evidence of the Accused
The accused testified in his own defence and was the only witness called on behalf of the defence. The accused testified to the following:
[64] The accused is 49 years old. He met the complainant when he first rented a room in the complainant’s grandmother’s home. He subsequently rented a room from the complainant’s mother for some 8 years and ultimately moved out in August 2019.
[65] The accused and the complainant’s mother had a very strained relationship that resulted from the complainant’s mother discovering the accused in the complainant’s room while the accused was a tenant.
[66] Following this discovery, the complainant and the accused were not permitted to communicate and once the accused left the complainant’s mother’s home, he was not allowed back of the property.
[67] This prohibition was an obstacle to the “on and off” boyfriend and girlfriend relationship between the accused and the complainant that lasted for some two years prior to the alleged assaults. The prohibition required that the relationship be of a clandestine nature.
[68] On Thursday, October 3, 2019, the accused snuck into the complainant’s room to visit with her at approximately 8:00 p.m. and snuck out again at 4:00 a.m. the next morning.
[69] At approximately 8:30 a.m. that morning, the complainant telephoned the accused to advise him that she was being kicked out of her mother’s and stepfather’s home because of an assault and she needed a place to stay. The accused offered that the complainant to stay with him.
[70] The complainant arrived at the home where the accused rented a room at approximately 11:00 a.m. on Friday, October 4, 2019, with some clothes, her medication and her laptop. The complainant arrived in a pair of trackpants.
[71] After the accused introduced the complainant to his landlord and mother, the complainant pulled up her pant legs and shirt sleeves to show them bruises on her knees and arms.
[72] The complainant complained of back pain. In response, the landlord’s mother offered her two Tylenol tablets with codeine and the accused provided the complainant with one Ibuprofen. The complainant took all three pills and went to sleep in the accused’s room.
[73] When the complainant woke up at approximately 5:00 p.m., she and the accused listened to music on the complainant’s laptop and drank. The complainant drank “Margaritaville” coolers that the accused had purchased with her bank card.
[74] Between 7:30 p.m. and 7:45 p.m., the accused left the complainant to purchase pizzas and upon his return, he found the complainant observing his landlord’s routine Friday night poker game with friends.
[75] The couple returned to the accused’s room to eat and to continue drinking and to listen to music on the complainant’s laptop until between 11:30 p.m. and midnight at which time the poker game ended and the accused went downstairs to say goodnight to the players.
[76] At this time, the complainant had consumed eight “Margaritaville” coolers and the accused had drank the same number of beers.
[77] When the accused rejoined the complainant, they hugged and kissed. The complainant told the accused that she was “horny”.
[78] The accused understood the complaint’s comment to be an invitation for him to perform oral sex on her. The couple removed their clothes and the accused performed consensual oral sex on the complainant.
[79] After approximately one-half hour of the accused performing oral sex on the complainant, he inserted his flaccid penis in the complainant’s mouth for her to perform oral sex on him.
[80] He did not apply pressure to the back of the complainant’s head to force his penis into her mouth. The act was consensual.
[81] After five minutes, the accused stopped the complainant from engaging in fellatio because “she tried the impossible”. The accused suffers from erectile dysfunction. Although he had taken medication in the past to treat his erectile dysfunction, he had no such medication at the time.
[82] The accused dressed himself for bed, while the complainant remained naked, the couple listened to music, drank a bit and kissed before going to sleep.
[83] The accused denies wearing a condom, calling the complainant names, slapping, choking or restraining her. He also denies ever having vaginal or anal intercourse with the complainant on the dates at issue.
[84] After the consensual oral sex between the accused and the complainant, there was no other sexual encounter between the couple.
[85] When they awoke on Saturday morning, the complainant was tired and sore but not hung over. She asked the accused to purchase more alcohol for her which he readily did and returned with twelve cans of “Margaritaville” coolers.
[86] The accused recalled speaking to J.B. both on the day she arrived and the following day. On these occasions, the complainant used the accused’s landlord’s landline. The accused never saw the complainant’s cell phone.
[87] The complainant contacted the police Saturday afternoon at approximately 3:00 p.m. to retrieve her personal belongings and cell phone from her mother’s home and to press charges against both her mother and stepfather. When the complainant contacted the police, she was not intoxicated; just angry.
[88] The accused was not concerned that the complainant had contacted the police. On the contrary, he was happy. He wanted the complainant to charge both her mother and stepfather.
[89] The complainant spent the balance of Saturday and Saturday night with the accused and they drank alcohol.
[90] On the following Sunday morning the police arrived in response to the complainant’s request to retrieve her belongings and cell phone. Ultimately the complainant chose not to return home and the police left.
[91] On the accused’s trip to the Beer Store that Sunday afternoon to purchase more alcohol for the complainant, he met his landlord who advised the accused that the complainant could not stay any longer unless she contributed to the rent.
[92] The accused was concerned for the complainant because he loved her, and he had no plan as to where she might stay. The accused realized his house was not a good environment for the complainant because it was a place where alcohol was routinely consumed. He wanted the complainant to return to a detox facility.
[93] The accused recommended that the complainant call J.B. to assist because both the complainant and J.B. himself had advised the accused that he was willing to help.
[94] When J.B. and his mother arrived to pick up the complainant later that day, the accused greeted them to thank them for picking up the complainant and to discuss a plan to assist her. That plan was to include the complainant attending an alcohol rehabilitation centre.
[95] Prior to leaving with J.B. and his mother, the complainant packed alcohol in her bag with the accused’s knowledge who failed to disclose its existence to either J.B. or his mother.
Admitted Facts
[96] Counsel for the Crown and the defence admitted the following facts for purposes of this proceeding:
a) The facts recorded in Constable Pridham’s notes as read out by him.
b) On October 5, 2019, at approximately 3:10 p.m., the complainant called police dispatch from the accused’s residence seeking assistance in removing her belongings from her mother’s residence. The dispatcher noted she sounded intoxicated. On October 6, 2019, police arrived on scene at 9:44 a.m. The complainant refused to go get her belongings from her mother’s residence and the call was closed at 10:06 a.m.
c) Constable Fawbert of Norfolk OPP responded with Constable Komadoski on October 8, 2019. Constable Komadoski noted that various items were transported with the complainant including a suitcase and a laptop.
Legal Principles
A. The Presumption of Innocence
[97] The accused is presumed to be innocent of the charges unless or until the Crown has proven each of the essential elements of each count in the indictment beyond a reasonable doubt.
[98] The presumption of innocence and the standard of proof beyond a reasonable doubt are important safeguards to ensure that no innocent person is convicted of an offence and deprived of liberty. Without these protections, there would be serious risk of wrongful convictions.
[99] Reasonable doubt is not a far-fetched or frivolous doubt. It must not be based on sympathy or prejudice. It is doubt based on reason and common sense that logically arises from the evidence or lack of evidence. In order to convict the accused, it is not enough for the court to find that he probably or likely committed one or more of the offences with which he is changed. In that instance, the court must give the benefit of the doubt to the accused and acquit the accused because the Crown has failed to establish his guilt beyond a reasonable doubt (see R. v. Lifchus 1997 CanLII 319 (SCC), [1997] 3 SCR 320 at para. 39).
[100] The Crown is not, however, required to prove with absolute certainty that the accused committed the offences, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high (Lifchus at para 39).
[101] The existence or non-existence of reasonable doubt is based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.
B. Burden of Proof on the Crown
[102] The paramount question is whether on the whole of the evidence I am left with a reasonable doubt about the guilt of the accused in respect of the offences with which he is charged. That is the central issue to be determined by me. A verdict of guilt must not be based on a choice between the evidence favourable to the accused and that favourable to the Crown; such an approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt (see R. v. Vuradin, 2013 SCC 38 at para. 21).
[103] When credibility is a critical issue, as in this case, the court must exercise caution and guard against an assessment of the evidence based simply on the evidence of the complainant or the accused. The determination of guilt or innocence must not devolve into a credibility contest between two witnesses.
[104] In R. v. W.(D). 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.) the Supreme Court of Canada set out the following approach to which this court must adhere where credibility is the central issue:
a) if I believe from the evidence favourable to the accused that he did not commit the offences charged, I must find him not guilty;
b) even if I do not believe the evidence favourable to the accused, if it leaves me with a reasonable doubt about his guilt, or about an essential element of an offence with which he is charged, I must find him not guilty of that offence; and
c) even if the evidence favourable to the accused does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[105] The approach mandated by the Supreme Court in W.(D)., and specifically the question whether the trier of fact is left with reasonable doubt by the evidence of the accused, was never meant to apply to that evidence viewed in isolation from the rest of the evidence in the case.
[106] The determination of whether the accused’s evidence is believed, or raises a reasonable doubt, must only be made “after considering the accused’s evidence in the context of the evidence as a whole” (W.(D). at para. 757).
[107] The W.(D). analysis was summarized by Rosenberg J.A. in R. v. Minuskin, (2003) 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 at para 22:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to the formula… It should, however, be clear from an examination of the reasons at the end of the day the trial judge has had regard for the basic principles underlying the W.(D). instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with reasonable doubt. As it was put by Cory J in (W.(D). at p. 753 S.C.R. the trier of fact must acquit even if he or she does not believe the accused’s evidence because they have a reasonable doubt of the accused’s guilt “after considering the accused’s evidence in the context of the evidence as a whole”.
[108] Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence. Reliability has to do with the accuracy of a witness’s evidence, or in other words, whether they have a good memory; whether they are able to recount details of the event; and whether they are an accurate historian. Credibility, on the other hand, has to do with whether the witness is telling the truth. Any witness who in not telling the truth is, by definition not providing reliable evidence.
[109] The reverse is not, however, the case. It may be that an honest witness will be trying his or her best to tell the truth and will believe the truth of what they are relating, but nonetheless be mistaken in their recollection. Such witnesses will appear to be telling the truth and will be convinced they are right but may still be proven wrong by incontrovertible extrinsic evidence. At the end of the day, although honest, their evidence is not reliable.
[110] The trier of fact is not required to choose between wholesale acceptance or rejection of each witness’s testimony. Therefore, I may believe all, none, or some of a witness’s evidence (see R. v. Doell, 2016 ONCA 7, 2016 ONCA, at para 7).
[111] In addition to considering the usual indicia of a witness’ unreliability or incredibility such as evasiveness, internal contradictions in their testimony or prior inconsistent statements, the trier of fact should consider the inherent plausibility or implausibility of the witness’ evidence. In doing so, I remind myself that the court must be cautious not to rely on false or unfounded assumptions of behaviour.
[112] In its assessment of credibility and reliability, the court must be hyper-vigilant against the intrusion of unfounded assumptions, prevalent myths and stereotypes about sexual offences, sexual assailants and survivors of sexual assault (see R. v. D. (A.R.J.), 2018 SCC 6, [2018] 1 S.C.R. 218 at para. 2).
[113] I am mindful that reliance upon stereotypical views about how victims of sexual assault should behave is an error of law (see R. v. A.(A.B.), 2019 ONCA 124, 145 O.R. (3d) 634, at paras 5 – 10).
[114] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of the principle Crown witness, such evidence need not directly implicate the accused or confirm the complainant’s evidence in every respect – the evidence should, however, be capable of restoring the trier’s faith in the complainant’s account (see R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328 at paras 12 – 13).
Summary of Submissions
[115] Both the Crown and the Defence agree that the court’s assessment of the credibility and reliability of the witnesses are central to a determination as to whether the Crown has satisfied its burden of proof. For that reason, the submissions of both counsel focus on the credibility and reliability of the testimony of the two primary witnesses, the accused and complainant, who presented two versions of the events at issue.
The Defence
[116] The Defence submits that the accused testified in a straightforward and candid fashion For example, he described in a frank manner the amount of alcohol that he and the complainant drank while they spent the weekend together. The accused also accepted responsibility for encouraging the complainant’s drinking.
[117] The defence argues that the complaint’s lack of memory and inconsistent statements respecting the events of October 4^th^ to 8^th^, 2019, call into question both her credibility and reliability.
[118] The defence also submits that I should make a adverse finding respecting the complainant’s credibility based on her after-the-fact conduct, and in particular, her instruction to J.B. that she was not prepared to leave the company of the accused until the following day.
[119] The Defence further submits that while there is evidence of heavy drinking throughout the weekend by both the accused and the complainant, the complainant was not impaired to the extent that she was unable to appreciate the events as they unfolded. For that reason, her impairment cannot be the reason for her memory loss and inconsistent statements.
[120] The defence argues that there is reasonable doubt as to the source of the complainant’s bruising.
[121] The Defence also submits the accused’s response to the complainant contacting the police and J.B. is inconsistent with someone who has committed multiple offences.
[122] The Defence therefore submits the Crown has failed to prove its case beyond a reasonable doubt.
The Crown
[123] The Crown submits that the accused is careless with the truth, and therefore, this court should find him neither a credible or reliable witness.
[124] The Crown submits that the complainant’s lack of memory with respect to certain events should not cause this court to make an adverse finding regarding the complainant’s credibility and reliability. Not all of the details of the events are important, and additionally, she cannot be expected to recall all of the events of the weekend given the trauma she experienced and the amount of alcohol she consumed (see R. v. M.B., 2018 ONCA 218).
[125] The Crown argues that the complainant testified in a straightforward manner and did not embellish her evidence. She urges me to consider the complainant’s lack of recall in the context of all the evidence.
[126] The Crown also submits that not all inconsistencies are significant and should not form the basis of an adverse finding of the complainant’s credibility and reliability (see R. v. Dadson, 2018 ONSC 4823).
[127] The Crown urges me to view any inconsistent statements made by the complainant in the context that she did not want to tell anyone about the assaults.
[128] Apart from the complainant’s evidence that she does not recall advising J.B. that she did not want to be picked up by him immediately, it is a myth to suggest that her disputed conduct is inconsistent with the usual reaction of a victim of sexual assault. Likewise, it is a myth to find that the complainant did not act as one might expect when she failed to report the alleged assaults to the police on her first opportunity.
[129] The Crown argues that it has proven its case beyond a reasonable doubt and the accused should be convicted on all three counts before the court.
Analysis
A. Inconsistencies in the Testimony of the Accused
[130] The Crown asserts that there are a number of inconsistencies in the testimony of the accused that demonstrate his carelessness with the truth, and therefore, call into question his credibility and the reliability of his testimony.
[131] The Crown points to the accused’s testimony regarding his visit with the complainant on the evening of Oct 3, 2019. Originally, the accused testified that the complainant called him upset at the prospect that he and a female cab driver may have been in a romantic relationship, and for that reason, he had to go see her.
[132] This evidence was, however, later contradicted by the accused when he testified that at the time of the complainant’s call to him on October 3, 2019, he did not know she was upset. He also testified that had he known the complainant was angry, and the reason for her anger, he would not have visited her because he did not want to get into an argument.
[133] When asked to explain the contradiction in his testimony, the only explanation offered by the accused is that he “misspoke”. I find the accused’s explanation weak at best.
[134] Additionally, in cross examination, the accused testified that J.B. called the number of the home in which he rented a room on both Friday and Saturday October 4 and 5, 2019, while the complainant was lying down and again on Sunday, October 6, 2019, in the afternoon.
[135] While the accused admitted that there may have been “a few more calls” from J.B., he testified that J.B. did not call multiple times a day.
[136] The accused’s testimony stands in contrast to his statement to the investigating officer on December 3, 2019, when he advised that J.B. called “every day, three times a day”.
[137] Although the accused readily admitted his statement to the investigating officer was ”not accurate” and attempted to explain it away on the basis that he was in a panicked state, it is difficult for this court to ignore this inconsistency in the context of other inconsistent statements, or at a minimum, different versions of the same event in his testimony.
[138] In his examination in chief the accused testified that after he and the complainant engaged in oral sex, they listened to music on the complainant’s laptop and drank “a bit” before going to sleep.
[139] However, in cross examination, he testified that following oral sex, he and the complainant stayed up for ten minutes, were tired and went to bed.
[140] When confronted with the inconsistency in his testimony, the accused attempted to explain the two versions of the scenario by stating that he did not reference any alcohol consumption on cross examination because he and the complainant only had a few sips of opened cans of alcohol without opening fresh cans. In my opinion, the accused’s attempt to explain the inconsistency fails.
[141] Additionally, in his examination in chief the accused testified that on Friday, October 4, 2019, the complainant gave him her debit card with a request that he purchase alcohol for her which he agreed to do without incident.
[142] On cross examination, however, and in an apparent attempt to convince the court of his deep feelings for the complainant, and in recognition of her struggles with alcohol, the accused testified that he originally objected to the complainant’s request that he purchase alcohol on her behalf but ultimately acceded to it following an argument.
[143] The two different versions of the same event cause this court to question whether the accused is prepared to tailor his evidence to accommodate his purposes and to portray himself in the best light.
[144] The Crown also argues that certain of the accused’s testimony is not plausible. The Crown points to the accused’s testimony that he never noticed any adverse impact of alcohol and/or drugs on the complainant during the weekend at issue.
[145] Without making any findings with respect to the degree of the complainant’s intoxication, the accused’s testimony stands in marked contrast to the testimony of Constables Pridham and Komadoski who both observed that the complainant had slurred speech. Constable Komadoski also noted that the complainant had difficulty in walking.
[146] Additionally, the complainant herself admitted on the evening of Friday, October 4, 2019, she was “high”, her brain was “foggy”, her speech was slurred and her balance “was off” from the consumption of three pills and alcohol.
[147] It is my opinion that the accused’s testimony respecting the impact of alcohol and drugs on the complainant is an attempt to minimize the complainant’s level of impairment for his own purposes.
[148] Furthermore, on the one hand the accused testified that he cares very much for the complainant; he acknowledged that the complainant has a drinking problem; and he wanted to keep her safe. For these reasons, he enquired of J.B. with respect to any plan for the complainant’s future care.
[149] On the other hand, the accused testified that he had no choice but to make two trips to the liquor store and one trip to the Beer Store in a period of forty-eight hours to feed the complainant’s habit; otherwise, they would argue and she would purchase the alcohol herself.
[150] I find that the accused’s actions belie his stated desire to help and care for the complainant.
[151] Finally, I find it implausible to accept the accused’s evidence that while the complainant’s mother had visceral feelings of hatred for him, this same person cried at the prospect of the accused leaving her home as a tenant.
[152] I therefore find that the evidence of the accused contains several inconsistencies and that he is prepared to mislead the court. For these reasons and those already stated, I do not believe the evidence of the accused, nor does it leave me with a reasonable doubt.
[153] This conclusion, however, does not satisfy the Crown’s burden of proof. Although I am not left with a reasonable doubt by the evidence of the accused, I must still ask whether , after considering the accused’s evidence in the context of the evidence as a whole, I have reasonable doubt of the accused’s guilt.
B. After-the-Fact Conduct of the Complainant
[154] As the Defence has urged me, I now turn my mind to the after-the-fact conduct of the complainant, and specifically, the fact that the complainant did not report the alleged assaults at her first opportunity on Sunday, October 6, 2019, when the police arrived at the accused’s residence to respond to the complainant’s request to retrieve her belongings as well as J.B.’s evidence which I find as a fact that the complainant advised J.B., that although he was prepared to pick her up on Saturday, October 5, 2019, she was not prepared to leave the accused until the following day.
[155] I am not prepared to make any adverse findings respecting the complainant’s credibility on the basis of her after-the-fact conduct.
[156] It is my opinion that were I to do so, my conclusion would be based on a widely held but false belief and widely held but fixed and oversimplified image or idea of how a complainant should react to a sexual assault. Or, in other words, I would be relying on myths and stereotypes that have been clearly repudiated by Parliament and/or the courts.
[157] In sexual assault trials, inference-drawing based on generalizations about human behaviour is fraught with difficulty. This is because many “common sense” beliefs about sexual behaviour and the credibility of complainants have come to be recognized as misguided and discriminatory.
[158] Historically, the common law accepted the premises that sexual assault victims report the offence immediately and that delays in reporting suggest a false allegation. These premises grounded the doctrine of recent complaint. Parliament and the courts have, however, repudiated the premises underlying the doctrine of recent complaint, and it is now recognized as a myth that “genuine” victims always report at their first opportunity.
[159] The Supreme Court of Canada in R. v. D.D. held:
… there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
(2000 SCC 46 at para 65)
[160] Some might also argue that, on a “common sense” view, the complainant’s decision not to flee the company of the accused at her first opportunity suggests that the sexual assaults did not occur. However, as stated by the Supreme Court of Canada in R v D.D., “there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave” (at para 65).
[161] Canadian courts have rejected as a stereotype the notion that ‘real’ victims do not continue to associate with their perpetrators after the fact.
[162] In R. v. Caesar, the Northwest Territories Court of Appeal observed,
Assumptions about complainants and their behavior in particular circumstances have plagued the law of sexual assault for generations. The Criminal Code now negates the relevance of many of them. There was a time when it was often assumed that a complainant who had really been sexually assaulted, would report the assault immediately, and would thereafter not associate with the perpetrator (2015 NWTCA 4, at para 6)
[163] The defence submits that the complaint’s decision to remain in the company of the accused should nonetheless be considered by me in assessing her credibility because she could have left on Saturday, October 5, 2019, without disclosing the assault to J.B. or anyone. I find that this submission lacks merit.
[164] Just as this court found in R. v. Dadson, that the complainant’s decision not to flee the accused before any assault occurred,
must be assessed in light of the circumstances at the time, not in light of a microscopically detailed analysis undertaken with the benefit of three years of hindsight. (2018 ONSC 4823 at para 12)
so too, must this court assess the conduct of the complainant in this case based on the circumstances of the moment.
[165] Given the complainant’s recent altercation with her stepfather and mother and the amount of alcohol that she consumed in the preceding two days, it is “highly unlikely that a person in [her] position… would be engaging in a detailed, rational analysis in which she weighs all of the factors that might lead her to remain against all of the factors that might lead her to leave” (see Dadson at para. 12).
[166] Although I am not left in reasonable doubt by the after-the-fact conduct of the complainant, the reason for the complainant’s bruises does cause me concern.
[167] The complainant’s evidence is that her bruising was caused by the accused who violently retrained her with his hands on her wrist and neck during the first incident of anal sex.
[168] In contrast, the accused’s evidence is that upon the complainant’s arrival on the morning of Saturday, October 5, 2019, she rolled up the sleeves of her sweat shirt and pants to show him the bruises on her arms and knee and told him she was sore.
[169] The evidence of Constable Pridham is of little assistance in this respect. While he testified that he observed no bruising when he attended at the home of the complainant’s mother and stepfather on the morning of October 4, 2019, we do not know with certainty what the complainant was wearing: a pink and black dress as the complainant stated in her testimony or as the accused testified, track pants and a sweatshirt?
[170] However, it is an agreed fact, and a fact that the complainant conceded on cross examination, that she told Constable Pridham on the morning of Friday, October 4^th^, that prior to his arrival that there was a physical altercation between she and her parents which included her stepfather pushing her and she hitting her head and tailbone.
[171] The complainant also admitted on cross examination that not only does she have a significant tolerance for alcohol, and indeed problem with alcohol, because of her alcohol consumption she bruised easily in October 2019.
[172] Additionally, I note that although the complainant testified that the accused had his hands on her neck during anal intercourse to the point where her breathing was seriously impacted, there is no evidence of bruising on the complainant’s neck.
[173] In considering all of this evidence, I am left with reasonable doubt as to the source of the complainant’s bruising.
C. Alcohol Consumption of the Complainant
[174] Throughout the trial, the court heard much evidence about the amount of alcohol that was consumed by both the accused and the complainant. Based on the combined evidence of the complainant and the accused, I find that the complainant drank thirteen cans of alcoholic coolers throughout the day and evening of Friday, October 4, 2019, and immediately before the first incident. Given the amount of alcohol that was consumed by the complainant, I must ask myself did the complainant’s drinking, in combination with the three pills she took on October 4, 2019, affect her core memory?
[175] The complainant admitted in her testimony that she struggles with an alcohol addiction.
[176] After having consumed five alcoholic coolers on the morning of October 4, 2019, the complainant described the effect of the two Tylenol tablets with codeine and one Ibuprofen given to her by the accused. She described herself as “not with the program”, “confused” and as having “foggy thoughts”.
[177] Furthermore, that complainant testified she “was pretty buzzed” and as having slurred speech with “not the best motor skills” after drinking eight cans of “Margaritaville” coolers during the evening of Friday, October 4, 2019.
[178] When the complainant awoke the next morning, she was hung over and “not herself”.
[179] Lastly, when she first attended the hospital on October 8, 2019, the complainant testified she was “intoxicated” after a day of drinking with J.B.
[180] Leaving aside the accused’s testimony that at no time was the complainant impaired during the October weekend in question, the complainant herself also gave evidence that the three pills did not affect her memory and she appreciated “somewhat” what was going on and was able to respond.
[181] The complainant also testified that notwithstanding her consumption of alcohol and ingesting the three pills, she was aware of her surroundings and “knew the difference between right and wrong”.
[182] Finally, the complainant testified that when she completed the Form, she was not under the influence of alcohol or drugs. Caitlin Christie, the sexual assault examiner at the Brantford General hospital, was also of the opinion that the complainant was not intoxicated at the time she answered the questions put to her.
[183] Given all of the evidence, I find that the complainant’s alcohol consumption combined with her ingesting of the pills had no significant impact of her recollection of the events at issue.
D. Memory of the Complainant
[184] Notwithstanding this finding, there are a number of instances where the complainant has no recollection of the events as well as several instances of the complainant having made prior inconsistent out of court statements.
[185] Defence counsel submits that the complainant’s lack of memory and inconsistent statements detract from her credibility and must cause this court to reject the complainant’s testimony.
[186] Indeed, there are several instances where the complainant has no memory. For example, she does not recall:
a) the length of time the accused rented a room in the home of her stepfather and mother;
b) taking her laptop to the accused’s home;
c) the details of what she told Constable Pridham, and later, Constable Komadoski;
d) on which dates various events occurred;
e) how many times the accused’s hands were on her neck and wrists; and
f) when and from what phone she made calls to J.B. from the accused’s home.
[187] In my view, however, the complainant cannot be expected to remember all of the details of the events of some two-and-a-half years prior to her testimony particularly given the trauma of the events as recounted by her. That demand in the circumstances would be asking far too much of the complainant, and in any event, the examples quoted above do not cause me to question the complainant’s core memory of the events.
[188] On the other hand, there are instances where the complainant has no memory of far more significant events than those referenced above which cause me to question the reliability of the complainant’s testimony. These instances include:
a) the subject of the argument at her parent’s home on October 4, 2019, which resulted in her going to the accused’s home later that day;
b) although the complainant ultimately testified that the oral sex she performed on the accused was forced upon her, she initially testified that she could “not recall if [she] agreed to that or not”;
c) her equivocal recollection of whether the accused chocked her on the morning of October 5, 2019, prior to engaging in nonconsensual anal sex;
d) her failed recollection of advising Constables Pridham and Komadoski that there was a physical altercation with her stepfather over her cell phone which ended in him pushing the complainant causing her to hit her head and tailbone; and
e) her failed memory of advising Constable Komadoski that in the same altercation, her mother also assaulted her and she had an image on her cell phone to document the event.
[189] I have considered the Crown’s submission that I should not make any adverse findings with respect to the complainant’s credibility and reliability based on her incremental disclosure.
[190] While it can be argued that the complainant ultimately recalled that she did not consent to the oral sex she performed on the accused, the question must be posed why there was any doubt in her mind whether the act was consensual? The act of oral sex was a key event in the series of events that took place on the night of October 4, 2019. Likewise, it causes me concern that the complainant does not recall with certainty if the accused chocked her on the morning of October 5, 2019, when she described in some detail the choking of the previous night. Furthermore, in my view, the complainant’s failed recollection of the subject of the argument with her parents that spiraled into the events of the weekend coupled with her lack of any memory of speaking to persons of authority about the details of the altercation with her parents detract from the reliability of her testimony and causes me to pause and question its reliability.
E. Inconsistencies in the Testimony of the Complainant
[191] Defence counsel also raises a number of inconsistencies in the testimony of the complainant. I am mindful, however, that not all inconsistencies are of equal importance, and not all inconsistencies lead to the same conclusion.
[192] In particular, I ascribe little or no weight to many of the inconsistencies developed on cross-examination, including the following:
a) in response to defence counsel’s request for a detailed description of the second incident of anal intercourse, the complainant failed to describe the accused’s touching of her breasts as she had done in examination in chief;
b) whereas the complainant advised the investigating officer that she was not wearing underwear on the occasion of the first assault, she testified that she was wearing boxer shorts;
c) although she also advised the investigating officer that the accused used lubricant to facilitate anal intercourse, the complainant made no mention of this detail in her examination in chief and only on cross examination testified that he may have used saliva;
d) the complainant advised nurse, Caitlin Christie, that there was digital penetration but when asked in her testimony for a detailed description of the assaults, no mention was made of this act; on cross examination the complainant explained that there was digital penetration with respect to the oral sex the accused performed on her, and in her mind, oral sex on females always includes digital penetration;
e) the complainant admitted on cross examination that although she advised nurse Christie that the accused strangled her with his right hand only, this did not happen; and
f) the complainant testified that following the events, she had neck pain for several days; in contrast, she advised nurse Christie she had no neck pain.
[193] Having said that, there are many other instances of inconsistencies in the complainant’s evidence that undermine the reliability of her testimony and weaken the complainant’s version of the events. They include the following:
a) On October 8, 2019, the complainant advised Constable Komadoski that she was wearing a pink and black dress when the accused assaulted her, and for that reason, the dress was seized for examination. The complainant testified, however, that on the evening of October 4^th^ she was wearing boxer shorts at the time of the first assault. When pressed to explain the inconsistency, the complainant’s only explanation was to offer that she does not know why she told the police that she wore a pink and black dress without underwear other than she wore the dress to the accused’s home.
b) Whereas the complainant testified that the accused did not use a condom, she advised Constable Komadoski on October 8, 2019, that he did indeed use a condom. The complainant’s only explanation for the conflicting versions is that she was embarrassed that “I did not use a condom.” To my mind, however, the complainant’s explanation lacks logic; given that she was assaulted, the use of a condom was not within her control. When defence counsel put this proposition to the complainant, her only response was, “well it did not feel like that”.
c) Not only did the complainant tell Constable Komadoski that she was sexually assaulted on one occasion on October 6, 2019, but so too did she advise nurse Christie of this fact in response to the Form questions. In her testimony, however, the complainant was clear that there were two distinct assaults between the late hours of October 4, 2019, and the morning of October 5, 2019. While I view the date discrepancies as inconsequential, the varying versions of the number of sexual assaults causes me considerable concern particularly as the complainant had no explanation for the inconsistent statements other than she “was out of sorts”.
d) The complainant also advised nurse Christie that the accused pulled her hair and smothered her with his left hand during the assault. On cross examination, she agreed there was no hair pulling or smothering and otherwise could not explain why she provided these inaccurate details to the nurse.
e) Furthermore, whereas the complainant testified she was strangled by the accused from the back of her neck during anal intercourse with each of the accused’s hands separately as well as both hands “at least once”, she confirmed to Caitlin Christie that she was strangled by the accused with his right hand only from the front, and not, the back of the neck.
f) Finally, in response to certain questions posed by nurse Christie as contained in the Form, the complainant stated as a result of the assault, she had no difficulty breathing and no neck pain. In her testimony in chief, however, the complainant was emphatic that during the first incident of anal intercourse, she was short of breath and found it “hard to breath” because of the accused’s hands on her neck. In cross examination, the complainant went further and stated that she could not breath and was “concerned that I might die” because the accused “squeezed so hard”. The complainant testified that she had soreness in her neck for three to four days after the event. The complainant’s only explanation for the inconsistencies is that she “did not want to tell people about it”. I find this explanation to be entirely unsatisfactory: not only ought the complainant to have known the importance of a complete medical record but prior to her interview with nurse Christie, she told at least three people (J.B., Constable Komadoski and the investigating officer) about the events.
[194] I find the above inconsistencies to be both troubling and significant because they address some of the core events in the alleged sexual assaults. These inconsistencies, coupled with the complainant’s lack of memory of certain important events, and my reasonable doubt about the origin of the complainant’s bruises undermine the essence of the complainant’s testimony and weaken her version of the events to such a degree that while I find the complainant credible, I am forced to seriously question the reliability of her testimony.
Conclusion
[195] It is not the role of the court to resolve the factual question of what happened between the complainant and the accused. The court must determine whether the essential elements of the charges against the accused have been proven beyond a reasonable doubt.
[196] When I consider the evidence as a whole, doubt and questions emerge. For these reasons, I am not satisfied that the Crown has proven its case beyond a reasonable doubt. Accordingly, I must, and do, acquit the accused of all charges against him.
M.J. Valente, J.
Released: June 24, 2022
COURT FILE NO.: CJ 101386
DATE: 2022-06-24
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D.E.P.
REASONS FOR JUDGMENT
M.J. Valente, J.
Released: June 24, 2022