COURT FILE NO.: CR-19-00000128-0000(Kingston)
DATE: 2022 Dec 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CHARLES PERCY KENNEDY
Accused
G. Skerkowski, for the Crown
J. Doody and J. Legault, for the Accused
HEARD at Kingston: November 21, 22 and 23, 2022
TRANMER J. (ORALLY):
Reasons for JUDGMENT
Background
[1] Mr. Kennedy is charged with 4 offences arising from the night of September 29, 2015:
Attempted murder
Unlawful confinement
Choking with intent
Assault causing bodily harm
[2] He is further charged with a sexual assault alleged on October 1, 2015.
[3] The complainant was a girlfriend to some extent. They had not seen each other in a month before getting together on the evening of September 28, 2015.
[4] The offences are alleged to have occurred at his residence north of Kingston.
[5] This is a judge alone trial.
[6] Crown counsel called 3 witnesses and filed an Agreed Statement of Fact, with respect to a 4^th^ witness.
[7] The evidence was completed in 2 days.
The Complainant’s Evidence
[8] The complainant T.H. is 42 years of age. Prior to the incident, she had been addicted to morphine and crystal methamphetamine. At the time, she was on methadone. Her routine was to get her methadone treatment once a week at 1 PM. She had to go to pick it up at the Kingston clinic.
[9] She is still on methadone but has not used illegal drugs since 2016.
[10] She met the accused in the spring of 2015. They became romantically involved within a month. They never lived together. His home was on the Washburn Road. She had an apartment in Kingston. He would usually pick her up in Kingston and then they would hang out at his house. He drove a beige Chevy truck. She could not really describe much of what they did except to hang out and talk. She said they did not watch much TV.
[11] She said that they would get together every week or two, but at the time of the incident, she had not seen him for about a month because she could not get in touch with him.
[12] Exhibit 2 is five photos of his home. Exhibit 4 is a sketch that she made of the mudroom door, kitchen and living room area inside.
September 28, 2015
[13] She testified that she finally did get in touch with him on September 28. She was happy to be able to see him. He came to town to pick her up and they drove back out to his place.
[14] She described this night as being nice. It was a good night. They got caught up. There was no use of illegal drugs that night.
September 29, 2015
[15] She testified that they were supposed to go to town on this day so that she could get her methadone. However, his truck would not start. She testified that she spent the entire day with him at his house. She testified that they did not leave his house that day.
[16] Before lunch time, he got a text or telephone call informing him that his brother-in-law had been murdered. “That kind of put him on edge”. There were bad texts between his brother-in-law and him and he was concerned that the police would consider him a suspect. He was in the kitchen when he got this information. She was in the living room.
[17] She tried to reassure him by telling him that she was his alibi, that they had been together all of the previous night when the murder occurred. This did not calm him down.
[18] She said that she was sitting on the floor in the kitchen beside the refrigerator. He was talking about going to jail for the murder and how much he would miss his daughter. They got into an argument about who missed their children more. She told him that maybe he should go to jail.
[19] In a blink, “he freaked out”. He grabbed her by the hair and threw her across the kitchen into the cupboards. He kicked her in the stomach and her ribs and in the middle of her back. He punched her in her face, nose and head. She got a bloody nose. He did this over and over again.
[20] She said that after about five minutes, he turned the music up loud and shut the curtains in the kitchen and the living room.
[21] She said that she tried to get out of the house through the patio door, but there was a lock on it which she had forgotten about.
[22] He grabbed her and threw her across the floor again.
[23] He kicked and punched her some more. She was so afraid that she urinated herself.
[24] He picked her up with his two hands around her neck choking her to the point where she almost blacked out. It made her dizzy.
[25] She was crying and asked him to stop.
[26] He got madder and madder.
[27] He said that she could not stay alive because she would tell about what he had done to her.
[28] He choked her again using his two hands around her neck.
[29] He called her names, bad names, and a useless mother and said her kids did not need her.
[30] He told her that he was going to kill her to keep her quiet. He was going to do that in the barn so there would be no mess in his kitchen.
[31] She said it got worse and worse. He got angrier and angrier.
[32] She said she thought that she was going to die.
[33] She testified that he used his hands to put her face into the urine which was on the kitchen floor.
[34] It seemed like it went on for a while. It would start and stop.
[35] He would kick and punch her in her ribs in the front and back and slam the back of her head into the cupboards which he did a couple of times.
[36] She testified that he said 3 to 6 times that he was going to kill her.
[37] She testified that near the end, he “helped” her change her clothes because they were full of urine.
[38] She had a bloody nose. He told her he was taking her to the barn to kill her.
[39] After he changed her clothes which was done in the kitchen, he used an old rope to tie her hands behind the back of the kitchen chair. He put duct tape across her mouth.
[40] He was calling her names. He said he was going to take her to the barn.
[41] She was telling him to please stop and to not kill her. She was crying and begging.
[42] He did not seem like himself.
[43] She thought she was going to die that night.
[44] At that point, through a crack in the curtains, they saw the headlights of a car come into the driveway.
[45] He removed the rope and the duct tape from across her mouth and told her to be quiet. It was a female friend from work who had driven in.
[46] T.H. behaved like nothing had happened.
[47] She is not sure of the person’s name. It may have been Sandra. She came into the kitchen.
[48] It was Chuck’s idea that she go into the washroom to clean herself up.
[49] The woman believed her explanation about the urine, namely that she had dumped a bucket of urine.
[50] Chuck told her not to tell the woman what had happened, but he did not tell her what to say.
Injuries
[51] T.H. testified that she had visible injuries. A bloody nose and a swollen nose.
[52] She said that he hit her head so many times, but she did not black out. She was very sore. She said she could hardly move that night. She had a very bad headache. She said that her neck was a little red from him choking her.
[53] She testified that she had washed the blood off of her face with water in the bathroom, so the woman did not see the blood.
[54] She had bruising but only she could see them.
[55] She testified that she did not do much with Sandra. She and Chuck went in and out of the house, the barn and in the attic over the kitchen.
[56] She testified that the assault had occurred about 9:30 or 10 PM. Sandra showed up around 10:30 PM. She thought the assault had lasted about 20 minutes.
[57] She spent the night on the couch in the living room, but she could sleep because she was in pain and scared.
[58] Chuck and Sandra were up all night and she assumes they were doing drugs because that is what one does when one stays up all night. She did not see them doing any illegal drugs.
[59] She was asked whether she thought about trying to escape again or calling the police. She said that she wanted to leave, but she just lay there in pain and cried.
[60] She testified that she was not allowed to use his cell phone when she was there. She could not remember whether she had a cell phone or whether she had one, but it did not have minutes on it.
[61] She testified that she was punched 10 or more times and that he slammed her head into the cupboards two times. She was choked a couple of times. She was kicked a couple of times.
[62] She said that she cleaned the urine up herself because Sandra was there. She did this as soon as she came out of the bathroom.
September 30^th^, 2015
[63] She testified that in the morning, 3 detectives knocked on the door around 10 AM. Sgt. Watt testified that he attended on that date with just 1 other officer.
[64] She said that the police talked to Chuck outside while she was inside the house.
[65] She said that Sandra was still there inside the house. Her truck was parked behind Chuck’s. Sgt. Watt testified that he pulled his cruiser in behind Chuck’s truck and he did not recall another vehicle being in the driveway.
[66] Chuck told her that the police wanted to talk to her. She said she spoke to the police outside. Chuck was beside her. She said that the one officer took her about 6 feet away from Chuck to talk to her.
[67] She said that the police did not question Sandra, but that Sandra did come outside when they were all speaking together. Sgt. Watt did not recall a second female or third person being present.
[68] She did not disclose to the police that she had been assaulted. She does not know why she did not do so. She said she was in shock. Chuck was there. She was unsettled. She was not sure what would have happened if she had told the police.
[69] She testified that after the police left, Sandra boosted the truck so they could go into Kingston to the clinic. In cross-examination, she testified that she did not see Sandra boost the truck but assumed that she had because the truck started that morning.
[70] She testified that they left to go into Kingston around 1 PM. They went to the clinic where she got her methadone. They made a few stops, details of which she could not recall.
[71] She did recall that they stopped at Mr. Kennedy’s friends’ residence at the corner of Concession Street and Alfred Street. She did not know these people. The girl was in her early 30s or late 20s and the man was a bit older. She said that Chuck left the residence and was gone for 1 or 2 hours. She remained with the two people and talked to the girl.
[72] She did not tell the people about the assault. She said she did not know why she did not tell them and did not know why she did not leave the residence at that time. She said she felt numb. She could not believe it happened.
[73] Chuck returned with two other friends, a man and a woman. She and Chuck drove back together to his house and this couple drove separately in another vehicle. T.H. did not know these people either.
[74] T.H. could not remember the names of any of these 4 people.
[75] Back at Washburn Road, they visited and hung out. Chuck would hug her and apologize. She told him not to worry about it, that it stayed between them.
[76] When the guys went outside, she told the woman what had happened the night before. She asked the woman not to leave her alone with Chuck. She and the woman came up with a plan to help her escape. They were going to say that they were going to town to get their hair dyed.
[77] When he found out, the next morning, the woman’s boyfriend said that she could not go.
[78] T.H. testified that she, Chuck and the man did crystal meth that night. The girl did not. She did this because she was pretending to be okay, trying to be herself.
[79] She testified that she was not still high when she left the next day.
October 1, 2015
[80] She said that around 11 AM that morning, the guys came into the house.
[81] Then the guy and the girl went outside.
[82] Chuck wanted intercourse. She told him that she did not want to, that she was not feeling well. He told her to suck it up. He was sitting on the couch in the living room. She took her pants off and got on to him, onto his lap.
[83] They had intercourse, penetration, for about five minutes. It was not comfortable. She did not enjoy it. She was not okay with it. She felt that she was being taken advantage of because of what he had done to her. She did it to keep him happy. She did not feel like she had a choice. She was afraid that he would get angry again if she did not do it.
[84] She told him that it hurt. He got mad and threw her off of him, pushed her off of his lap.
[85] After this, the boyfriend told the girl she could not go to town with T.H.. T.H. grabbed a bag and her purse and walked down the street. After a couple of minutes, an unknown man stopped and asked to give her a ride and he drove her into Kingston.
[86] She said that she was upset and told the fellow that she had left Chuck’s house.
[87] She never saw Chuck again.
[88] She described being dropped off at the Tim Hortons on Montréal Street and going to the “Restart” office. She testified that she broke down there and told the woman what had happened and what her situation was. She said that at that point she had no place to live.
[89] She confirmed the evidence of Cathy Doyle that she met with her as a walk in on that day around 4 PM. She testified that she was not high at that time, confirming the observations of Ms. Doyle. She testified that she told Ms. Doyle what had happened and named her assailant. Cathy Doyle testified that she had not named an assailant.
[90] She testified that she has no answer as to why she did not call the police at that point.
[91] She testified that Errol Abrams was her driver in 2017. He would drive her to the clinic for her methadone every Friday over about two years. On one occasion, he mentioned that he had driven another person to court. The person had witnessed a guy assaulting a woman on Washburn Road. She told Errol that she was assaulted by Chuck. Errol said that the person had witnessed Chuck assaulting another woman. Errol encouraged her to go to the police. This is consistent with the evidence of Errol, Ex. 6.
[92] In chief, she testified that because his truck would not start on the 29^th^ morning, she did not get into town to pick up her methadone dose.
[93] She testified that she had two morphine pills. She took these to keep any withdrawal symptoms away. Her judgment was not clouded on the 29^th^. She was not experiencing withdrawal.
[94] Her evidence is that the next methadone that she got was on the 30^th^.
Cross-examination
[95] The cross-examination identified inconsistences between the complainant’s trial testimony and her police statement and preliminary inquiry testimony. These were in respect of some details about the assaultive behaviour, and in respect of other matters. The defence identified inconsistencies between the complainant’s evidence and the evidence of 2 independent witnesses, Sgt. Watt and Cathy Doyle. The cross-examination challenged the complainant’s memory about her other activity and people’s names. The defence challenged the complainant about why she did not disclose earlier or escape sooner. Cross-examination also pointed out the minimal injuries from what she described as a violent assault.
[96] She testified that she cannot recall whether she showered during the days that she was at Chuck’s. She cannot recall eating while she was there.
[97] She stated that when she left his house on October 1, she had her purse, make up and 1 bag. She could not recall what the bag was but thinks that it was a grocery bag. Cathy Doyle testified that she showed up that day with a yellow no-frills bag.
September 29, 2015
[98] She said that she probably woke up just before lunch.
[99] She said that between noon and 9 PM they had conversation and maybe arguments. She can only recall talking about the brother-in-law and that she was his alibi.
[100] She testified she could not recall the nine hours of conversations, but “who forgets being assaulted”.
[101] She does not remember whether they watched TV.
[102] She said she just remembers what he did to her and how it felt.
[103] Exhibit 4 is her sketch of the mudroom door into the kitchen, the adjoining living room, spare room and downstairs bathroom. The patio door from the kitchen led to the pony fenced in area. That was the door she tried to escape out of.
[104] There was a small table in the kitchen with 4 chairs, as she sketched on Exhibit 4.
[105] Her methadone treatment was daily at approximately the same time each day, 1 PM. However, she admitted that despite being on methadone, she had morphine and used crystal meth if she could not get her methadone.
[106] She agreed that she got her methadone on Monday the 28^th^ but not on Tuesday the 29^th^, the day of the assault.
[107] She believes that she took two morphine pills on the 29^th^ but she is not sure.
[108] On the 30^th^, she did get her methadone, but admits that she used crystal meth that night with Chuck and the other man. She could not recall initially how she took the crystal meth that night saying “probably” she injected it into her arm.
[109] She agreed that her memory of seven years ago would be clouded by time.
[110] She testified that they had slept in the living room on the couch overnight of the 28^th^.
[111] She confirmed that his behaviour changed when he received the phone call about his brother-in-law. She could not recall if she had seen him that morning before the call or not.
[112] She testified that missing her methadone treatment that day was a big deal for her.
Did They Leave the House on September 29?
[113] She testified that they did not leave the house on the 29^th^, because his truck would not start.
[114] In her police statement, she told the police that on the day he got the call about his brother-in-law they went into Kingston. She testified that what she stated in court was accurate, they did not go to town that day, the 29^th^.
[115] She also had told the police that “we went back to his house” before the assaultive behaviour. She repeated that what she testified to was accurate, the truth.
[116] She maintained that they did not go to town on the 29^th^.
[117] She could not explain why she told the police that they had gone into town on the 29^th^. She said she was nervous talking to the police.
[118] In re-examination, it was pointed out that in her police statement, she had told the police on 3 occasions that the truck would not start on the 29^th^ and that therefore, they had not gone anywhere on that day.
Start of the Assault
[119] She repeated her evidence in chief that they had been talking about missing their children. She has no memory as to why she was sitting on the floor when the assault began.
[120] It started when he threw her across the kitchen floor some 6 feet. He had grabbed her by the head and hair and her legs to do so.
The First Thing He Did
[121] He slammed her head against the cupboards 2 times. That was the first thing he did after throwing her across the room. He slammed her head against the cupboards repeatedly throughout the night. In chief, she had said that he slammed her head into the cupboards 2 times.
[122] She told the police that the first thing he did after throwing her across the room was to punch her and kick her ribs and then he picked her up by the head and started slamming her head against the cupboard.
[123] She testified that then he punched her twice and got up to shut the curtains and turned the music up. This was about 5 minutes into the assault.
[124] She testified that she tried to escape through the patio door, but he grabbed her again by the hair and threw her across the floor, back towards the fridge. He kicked her in the ribs again, twice. Then he punched her. This pattern was repeated 5 to 7 times. The assault lasted for about 20 minutes.
When She First Urinated
[125] In cross-examination, she testified that she started to urinate when he smashed her head into the cupboard. He had not yet choked her. She said that the choking began about 10 minutes into the assault.
[126] She repeated that the first time he choked her was after she had urinated.
[127] She told the police that the first time that she urinated was when he choked her.
[128] She had testified at the preliminary inquiry that the first time she started to urinate was after he had gotten up to turn up the music and close the curtains. And that she had tried to escape out of the patio door, but he grabbed her by the hair and threw her onto the floor up against the cupboards. It was then that she started to urinate.
[129] At trial, she testified that she started to urinate as soon as the beatings started.
[130] She testified that she has had nightmares and flashbacks. “Maybe things happened in a different order”.
[131] She had also testified at the preliminary inquiry that she started to urinate when she hit her head off the cupboard.
[132] Defence counsel pointed out that she has stated different scenarios, as to when she first began to urinate.
[133] She responded that she was not sure of the order of events.
[134] She responded that she was being beaten when she started to urinate. It was when he threw her from the patio door. She said the choking could have started earlier than 10 minutes into the event.
[135] She testified that her memory is cloudy, that she remembers most of it.
[136] She was asked whether he kicked her in the ribs after her nose started to bleed. She could not remember.
[137] She was asked whether it was then that he pushed her face into her urine. She said it sounds right but she was guessing.
Was he doing anything else while rubbing her face in urine?
[138] She testified that when he rubbed her face into her urine, he was not doing any other assaultive behaviour. However, she told the police that he was rubbing her face in the urine and kicking her at the same time. She responded that both versions were correct. She said that she didn’t think the statement was typed accurately. She testified that she could not remember whether he was kicking her or not when he pushed her face into the urine.
[139] She testified that he punched her in the face up to 18 or 20 times. He smashed her head into the cupboard 18 or 20 times. He kicked her 5 or 6 times overall, front and back.
[140] Then she testified that she did not remember the exact number of times that he kicked or punched her.
[141] She said he punched her in the mouth.
[142] She said he choked her twice. The first time was 10 minutes into the assault and the second time was about 5 minutes later. He stopped the choking on his own.
[143] There was no damage to the kitchen.
Minimal Injuries
[144] She had no cuts or scratches or bruises. She said that her nose was swollen such that she would notice it, but someone who did not know her would not. She said her nose still hurts.
[145] She does not remember when her nose started to bleed. The first time she noticed it was in the washroom in front of the mirror. Defence suggested therefore that it was not a great deal of blood. She said she did not think that Chuck would have had blood on his hands.
[146] No bruising developed on her face. He had punched her with his fist.
[147] There were red marks on her neck around her Adam’s apple.
[148] She said that there were no marks on her arms or wrists, contrary to the evidence of Cathy Doyle.
[149] She thinks that the pants she changed into were his, maybe hospital pants. She was 115 pounds at the time. The police officer did not testify as to her wearing pants that appeared to be too big for her.
[150] She confirmed that her ankles had not been tied, saying, “how would he have gotten me to the barn”.
[151] Her mouth had only been taped for a few seconds because they saw the headlights come in the driveway.
What was he saying while tying her hands?
[152] She had testified in chief that while he was tying her up, he was saying to her that he was going to take her to the barn to kill her because he did not want to make a mess in his kitchen. It was pointed out to her that at the preliminary inquiry p 71, she had testified that he did not say anything to her while he was tying her up. She responded that he did say that to her while he was tying her up. It was put to her that she had gained that memory and she responded that she guessed that she had. Because her testimony was true.
First Opportunity to Disclose or Leave
[153] She did not tell Sandra what had happened because Sandra was not her friend and because Chuck was there.
[154] She agreed that she had been left alone most of the night of the 29^th^ because Chuck and Sandra were visiting with each other, out in the barn and up in the attic.
[155] She agreed that she had the opportunity to leave at that point but did not do so because she was sore. She does not know why she did not leave.
[156] She has no memory of what occurred before the police arrived on the 30^th^, around 10 AM. She had slept on and off on the couch in the living room.
[157] She testified that when the police interviewed her outside of the house, Chuck was within 5 feet of her, contrary to Sgt. Watt.
[158] She testified that she does not know why she did not disclose to the police at that point except to say that Chuck was there.
[159] She also repeated that before the police left, Sandra was outside with all of them, contrary to Sgt. Watt. She explained that she was overtired shocked and confused when she had told the police in her statement that Chuck was right there holding her hand.
[160] She agreed that if she had told the officer Sgt. Watt, that she had only known Chuck for several weeks, that would be a mistake. She did not remember if she had lied to the officer. Sgt. Watt testified that she probably had not used the word “several”, but he understood her to have said that she had known Chuck for at least 3 weeks and certainly much less than 6 months.
[161] She confirmed her testimony that the only day she did not get the methadone was the 29^th^. However, Sgt. Watt testified that she had told him that she had not had methadone since Sunday and that she had been at the house since the 27^th^.
[162] She agreed that she could not account for what she and Chuck did in Kingston on the 30^th^ for about 8 ½ hours, other than to have gone to the clinic and to one friend’s house, and also maybe to Dave’s.
[163] She cannot remember the conversation that she had with the two people who lived at Concession and Alfred for the hour or two that Chuck was away. She did not tell them about the assault. She did not know them. She does not know why she did not leave at that point.
[164] Defence pointed out that rather than leave at that time, she returned in the truck with Chuck to his house, to be joined by his two friends. Defence also pointed out that when she did decide to leave, she simply gathered her belongings and walked out the door and down the road.
[165] In response to the defence question, she was unable to recall any details as to what she and the woman did overnight from the 30^th^ to the 1^st^, apart from cleaning and organizing.
[166] She could not recall when on the 30^th^ they did the crystal meth.
[167] It was pointed out to her that at the preliminary inquiry, she had testified that she had a morphine pill that night before doing the crystal meth. She agrees that her memory was better then then today. She does not remember that today.
Re-examination
[168] When asked why she did not leave on the occasions that it appeared she had the opportunity, she responded that she was not herself, she was not thinking straight.
Sgt. Watt
[169] He and one other officer attended at the residence of the accused on September 30 to investigate the murder of the brother-in-law. This was around 11:55 AM.
[170] First, he interviewed Chuck. In referring to Mr. Kennedy in this way in these reasons, I mean no disrespect to Mr. Kennedy, trial testimony referred to him in that way. The officer said he interviewed Mr. Kennedy some 20 to 30 feet from the mud room door, while T.H. remained in the house.
[171] He left his partner with Chuck, when he went to interview T.H.. He stood in the mud room door and she was 3 to 5 feet inside the residence. Chuck would not have been able to see or hear her, contrary to the testimony of T.H..
[172] His observations of her were that she was disheveled. Her hair was unkempt. What stood out was that her feet were black dirty. The floors were dirty. It appeared to him as if she had not worn shoes for days.
[173] He thought that she was under the influence of drugs or going through withdrawal. He based this on how she answered the questions. She bounced around from thought to thought. He would have to repeat a question. It was like she was not of sound mind. He testified that she did not appear to be sober. He accepted what she told him. He concluded his investigation of Mr. Kennedy.
[174] He observed no injuries, otherwise, he would have investigated them and questioned the accused, who he knew from a prior time. He observed no sign of bruising or scratches.
[175] His evidence was that there was no other vehicle present, such as Sandra’s, and he did not recall Sandra being present at any time while he was there.
[176] To him, there was no sign of a disturbance or blood inside the home.
[177] He testified that T.H. could have said something to him that Chuck would not have overheard.
Cathy Doyle
[178] Ms. Doyle was the complainant’s Ontario Works case manager in September 2015. She testified that she usually met with complainant at her Sharbot Lake office. She had responsibilities for both of the Kingston area and the rural area to the north.
[179] She testified that she recalled the meeting with the complainant on October 1, 2015. It was the first and only time that she met with the complainant in Kingston. To the contrary, the complainant testified that she usually met with Ms. Doyle in Kingston.
[180] Exhibit 1 is the Ontario Works intake form that documents this meeting which took place between 3:13 PM and 3:53 PM. It was a walk-in without a prior appointment. The complainant’s testimony confirms these two points. The form also indicates that the nature of this meeting was a “safety emergency”.
[181] Ms. Doyle described the complainant as being “beside herself”, scared, hyper. The complainant kept saying that “I got away” and gave her details of a violent incident having occurred.
[182] She testified that the complainant was usually very well-groomed, but on this occasion, she had no makeup and her hair was scraggly.
[183] She had never seen the complainant look like this. She was not acting as her usual self. The complainant talked quickly. She was terrified. She was excited or glad that she had gotten away.
[184] She observed that the complainant’s neck was very red as if she had a rug burn. She also observed that it looked like there were scrapes on the complainant’s forearms, as if she had been picking up sticks.
[185] The complainant did not seem intoxicated.
[186] She has dealt with people who were on methamphetamine. It did not appear to her that the complainant was under the influence of drugs. To her, this was not a drug issue. She agreed that she never had seen the complainant after she had used drugs.
[187] She recalled that the complainant was carrying a yellow No-Frills grocery bag.
[188] She tried to help the complainant find a place to live, but Interval House would not take her in.
[189] She told the complainant numerous times to call the police. The complainant said she could not do that. She was afraid that he would come after her.
[190] The complainant did not tell her who had assaulted her. The complainant testified that she thought that she had told Ms. Doyle.
Agreed Statement of Facts re: Errol Abrams
[191] Mr. Abrams is 82 years old.
[192] Mr. Abrams is a retired correctional officer who worked at Kingston Penitentiary (20 years) and the Prison for Women (5 years).
[193] In 2013, Mr. Abrams began working as a volunteer driver for the Sharbot Lake municipality methadone program.
[194] Mr. Abrams met T.H. in September of 2017 during the course of his employment as a volunteer driver.
[195] Mr. Abrams would drive T.H. from Sharbot Lake to Kingston and back so that T.H. could attend her methadone clinic in Kingston.
[196] During the drives, Mr. Abrams and T.H. would engage in conversation.
[197] During one of their drives, T.H. disclosed to Mr. Abrams that she had been the victim of a significant assault by the accused Charles Kennedy.
[198] Mr. Abrams encouraged T.H. to disclose these allegations to the police. Ultimately, T.H. agreed to contact police and provide a statement.
[199] Mr. Abrams was still driving T.H. to her methadone appointments at the time of the preliminary inquiry in October of 2019.
[200] Mr. Abrams is no longer acting as volunteer driver and no longer drives T.H. to her methadone appointments.
Position of the Crown
[201] The Crown submits that this case turns on the court’s assessment of the credibility and reliability of the complainant.
The Essential Elements of the Offences Charged
[202] The Crown cited R. v. Gordon, 2009 ONCA 170, 2009 94 OR (3d) 1 (CA), and R. v. Francis, 2017 ONSC 1505 for the relevant principles related to attempted murder. He submitted that the mens rea required to be proven is a full intent to kill. The Crown submits this is proven insofar as the accused told her a number of times that he was going to kill her and that it would be in the barn so there would be no mess in the kitchen. The accused had already viciously beaten the complainant.
[203] The Crown submits that it is the actus reus of attempted murder that is the real issue in this case. The Crown submits that the accused took more than preparatory steps, he assaulted her, he choked her 2 times to near unconsciousness, he closed the curtains and turned up the music, he tied her hands and taped her mouth, he prevented her escape, he had control over her, and had gone, in doing so, beyond mere preparation only to be interrupted by Sandra. The complainant believed she was going to die.
[204] The Crown submits that the unlawful confinement is proven in that he prevented the complainant from escape through the patio door by grabbing her and throwing her across the floor, and also by tying her hands while she was seated on the chair and duct taping her mouth.
[205] The Crown submits that the choking is proven on her evidence that he choked her twice to near unconsciousness. Cathy Doyle confirmed red marks on the neck of the complainant on October 1.
[206] The Crown submits that the assault bodily harm is made out by the evidence of the complainant that she was punched and kicked and thrown across the room and choked. The evidence that she gave about her injuries proves more than mere trifling or transitory injury.
[207] The Crown submits that this is a case in which the complainant did not consent to the sexual intercourse but felt that she had no choice in that any consent she may have appeared to have given was vitiated by her fear of harm. He cites s. 265(3)(b) the Criminal Code and R. v. Ewanchuk, 1999 CanLII 711 (SCC), 1999 1 SCR 330, paragraphs 36 to 39, 41 and 52. The Crown points out that the complainant alleges that she had been the victim of a violent assault on the evening of September 29, that she did not want to have sex but felt that she had no choice fearing further harm. He cites R. v. C.B.K., 2015 NSCA 111. The Crown concedes that it must prove that this is not a case of honest but mistaken belief in communicated consent beyond a reasonable doubt. He submits however that the accused made no reasonable inquiry, s. 273.2(b). He points out the evidence of the complainant is that when she told the accused that she did not want to have sex, he responded that it was not about her and that she should suck it up.
Credibility and Reliability of the Complainant
[208] The Crown points out that the complainant gave no evidence of any animus against the accused. She was happy to see him on the 28^th^ and they had a good night. The assault on the 29^th^ took her by surprise, “in a blink”, “he freaked out”. The Crown submits the complainant was unshaken with respect to the core details of the assaultive behaviour. The Crown submits that her frustration during cross-examination about the sequence of events is understandable and not fatal to her credibility or reliability. He points out that not all inconsistencies are created equal. She was consistent in her evidence as to the core details as to what he did to her. She gave much detail. Her drug use is not dispositive.
[209] The Crown submits that the court should accept her explanations as to why she did not escape or disclose earlier when there appears to have been opportunity on her evidence. He submits that her explanations are reasonable and logical. She was afraid of further harm by the accused. He points out that she did disclose to Cathy Doyle as soon as she escaped. On her evidence, she also disclosed to the people at “Restart”, and to Errol Abrams. The latter is confirmed by the evidence of Errol Abrams, Ex. 6.
[210] The Crown submits that in this case there is no evidence of motive to fabricate. He cites R. v. Ignacio, 2021 ONCA 69.
Confirmation by Other Witnesses
[211] The Crown points out that Cathy Doyle stated that the complainant was a walk-in, that she was upset, disheveled and not herself and that she made disclosures to her. Cathy Doyle observed red marks on the neck of the complainant. Cathy Doyle confirmed that the complainant was carrying a grocery bag. Cathy Doyle confirmed the time of day that she met with the complainant on October 1. Cathy Doyle confirmed that the complainant did not appear to be high on drugs. The Crown points out that in R. v. Woollam, 2012 ONSC 2188, the court indicated that the post offence demeanour of a victim can be relevant to assessing credibility.
[212] The Crown submits that the differences arising from the evidence of Cathy Doyle with respect to the scratches on the arm or whether she was told the name of the assailant are not fatal to the credibility or reliability of the complainant. Such differences are to be expected.
[213] The Crown submits that the evidence of Sgt. Watt confirms that the police did show up at the house as testified to by the complainant and that they were there to investigate the murder of the brother-in-law. The Crown submits that the differences in the evidence of Sgt. Watt including how many officers there were, where they were from, whether Sandra was there or her vehicle was there, the proximity to Chuck while being interviewed, where the complainant was interviewed, the complainant’s demeanour and no observable injuries or red marks, are minor differences to be expected and not of any consequence in the circumstances to the court’s assessment of the complainant’s credibility and reliability.
[214] The Crown points out that the evidence of Errol Abrams confirms the evidence of the complainant that she told him she was assaulted and by whom.
The Position of the Defence
The Essential Elements of the Offences Charged
[215] With respect to the attempt to murder, the defence points out that the evidence of the complainant is that during their argument concerning missing the children, the accused “freaked out”, “in a blink”. This indicates there was no plan. There is no evidence that he said how he was going to kill her. This indicates there was no plan to do so. The defence submits that to utter a threat to kill plus the commission of an assault does not amount to attempted murder.
[216] The defence submits that the Crown has not proven specific intent to kill beyond a reasonable doubt.
[217] The defence points out that despite the evidence of a vicious assault, the evidence is that the injuries inflicted were minimal. It is not evidence of intent to kill, and in fact, is evidence of an intent not to kill.
[218] The defence submits that the evidence that complainant’s hands were tied behind a chair and her mouth taped and closing the curtains and turning up the music is inconsistent with going to the barn. On the complainant’s evidence, she weighed only 115 pounds, and during the assault, the accused was able to pick her up and throw her across the room and choke her. The tying up cannot be a step toward going to the barn.
[219] The defence submits that in view of the cross-examination on the point, the court cannot find that it is proven beyond a reasonable doubt that the accused told the complainant he was going to kill her in the barn while he was tying her hands. The tying cannot be found to be a step toward killing. That he said that to her during other activity cannot be found to be a step in an intent to kill.
[220] Also indicative of no intent to kill is the evidence of minimal injury, that he did not choke her to unconsciousness although he apparently had the ability to do so on her evidence and significantly that he invited someone into the house reportedly during the execution of his plan of intending to kill her. Not only did he invite Sandra into the house on the evidence, but he showed her around and she stayed overnight well into the next day. There were no further steps taken after she left to continue with the plan to kill.
[221] The defence submits that, subject to my findings as to the facts proven, preventing the complainant from exiting through the patio door and tying her hands behind the chair, if proven, would prove the offence of unlawful confinement.
[222] The defence submits that given the wording of the indictment concerning the charge of choking, the evidence does not prove that the choking was done to permit the accused to assault the complainant. He was already halfway through the assault. On her evidence, she had not resisted, merely sobbed and asked him to stop. The nature of the assault did not change after either of the events of choking. The defence relies on R. v. Hill, 2010 ONSC 5150, para. 17, 35.
[223] With respect to assault causing bodily harm, the defence submits that the evidence of minimal injury and the evidence of the observations of Sgt. Watt, a mere 14 hours following what the complainant described as a vicious beating, must leave the court with a doubt about bodily harm. There is also the evidence of Cathy Doyle in that regard.
[224] With respect to the count of sexual assault, the defence submits that the court must be left with a reasonable doubt in view of the actions of the complaint on October 1 and what the accused would have been left to think given she had remained with him since the alleged assault despite having the opportunity to leave or disclose. The defence did not cross examine the complainant on the alleged sexual assault. The defence submits that on her evidence, she never said no to his request for sex. On her evidence when she communicated pain, he stopped.
[225] The defence points out that CBK is readily distinguishable on its facts.
[226] The defence submits that the court must be left with a reasonable doubt on the issue of honest but mistaken belief in communicated consent.
[227] The defence submits that there is no issue concerning motive to fabricate either way in this case. The court cannot speculate.
[228] With respect to the complainant’s demeanor, the court must consider the evidence of Sgt. Watt together with the complainant’s actions following the assault and up to October 1 and her inability to account for what she did during large periods of time.
Credibility and Reliability of the Complainant
Minimal Injury
[229] The defence strongly submits that given the viciousness of the assault as described by the complainant, including up to 20 punches in her face, nose and mouth area, and the evidence of minimal injury, in light particularly of the evidence of Sgt. Watt and Cathy Doyle, the court must find the complainant to be wholly incredible and unreliable or at least be left with a reasonable doubt. She cannot say when her nose was bloodied. Her evidence is that the blood was minimal, none on her clothes and none on Chuck’s hands.
Complainant’s Evidence Inconsistent with Sgt. Watt
[230] The defence submits that the court must be left with a reasonable doubt in view of the evidence of Sgt. Watt in that it significantly contradicts the complainant’s evidence including, whether Sandra or Sandra’s truck was there, where the officer interviewed the complainant, how close Chuck was while the officer interviewed the complainant, how many officers attended, and her apparent impairment by drugs according to the officer. The officer was there to investigate a serious charge and injuries would have been of note to him. One would expect any upset on her part would have been of note.
No Memory of Names
[231] The defence submits that the court should give serious consideration to the fact that the complainant was unsure that the woman’s name was Sandra, and that she did not know the names of the two people she spent time with without Chuck in their apartment, and that she did not know the names of the two people that returned to the residence with them, especially in view of the evidence of the complainant that she formed a plan to escape with the woman.
Complainant Evidence Inconsistent with Cathy Doyle
[232] The defence points out that Cathy Doyle saw no injury, except red marks and contradicts the complainant as to whether the name of the assailant was disclosed. It is important that Cathy Doyle said the complainant was wearing no makeup because any injuries to the face would be visible and not covered.
Large Gaps of Time – No Memory of What They Did
[233] The defence points out that the complainant cannot account for large gaps of time on the 29^th^ and the 30^th^ and overnight on the 30^th^. She agreed that her memory was cloudy, and she could not remember some things.
Scratches
[234] The defence points out that Cathy Doyle saw scratches on the arms of the complainant. The complainant denies any such scratches. The defence says the court must have a reasonable doubt as to what else may have occurred to the complainant during the time she cannot account for.
Opportunity to Disclose or Escape Earlier
[235] The defence submits the court must have a reasonable doubt about the allegations of the complainant because she did not disclose or escape when she had the opportunities to do so, for example, on the evening or overnight on the 29^th^ during the day of the 30^th^, or overnight on the 30^th^. There is no evidence that Chuck was standing guard over her.
Manner of Testifying
[236] The defence also points out the manner of testifying on the part of the complainant during the cross-examination on the sequence of events, her prior statement and preliminary inquiry testimony. She was combative, refused to continue and made comments under her breath.
Did They Leave the House on September 29?
[237] The defence points out that the complainant was inconsistent about whether or not they had left the house on the 29^th^.
The Assaultive Behaviour
[238] The defence points out that the complainant gave differing evidence as to when she first began to urinate. It is not a case that she testified that she did not know or remember.
[239] The defence points out that the complainant prefaced many other answers with “probably”, or “maybe”, which demonstrates no firm memory.
[240] The defence also points out that it is significant that the complainant was inconsistent about whether the accused was kicking her while he rubbed her face in her urine as she described.
[241] The defence pointed out that the complainant was inconsistent with respect to the first thing the accused did at the outset after throwing her across the floor.
[242] The defence also submits that the Court cannot find it proven that Chuck said to her he was going to kill her in the barn while he was tying her hands and taping her mouth, in view of her inconsistent trial testimony compared to her preliminary inquiry testimony.
Legal Principles
[243] Some of the legal principles that are particularly applicable to this case are as follows:
1. Presumption of Innocence
[244] Every person charged with an offence including Mr. Kennedy is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.
[245] The presumption of innocence means that Mr. Kennedy started his trial presumed to be innocent of the specific crime with which he is charged. This presumption of innocence stays with him throughout this trial. The presumption of innocence is only defeated if and when Crown counsel satisfies the Court of Mr. Kennedy’s guilt of the offences charged by proving every essential element of the offence beyond a reasonable doubt.
2. Burden of Proof
[246] The obligation to prove Mr. Kennedy’s guilt rests with Crown counsel. From start to finish, that obligation never shifts. Mr. Kennedy does not have to present evidence. Mr. Kennedy does not have to prove anything. To be more specific, Mr. Kennedy does not have to prove that he is not guilty of the offences charged.
[247] To prove Mr. Kennedy’s guilt of an offence, Crown counsel must prove each and every essential element of that offence (but only the essential elements), beyond a reasonable doubt.
[248] I must find Mr. Kennedy not guilty of the offences charged unless Crown counsel proves all the essential elements of that offence beyond a reasonable doubt.
3. Reasonable Doubt
[249] The phrase, “beyond a reasonable doubt”, is a very important part of our criminal justice system.
[250] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.
[251] It is not enough for me to believe that Mr. Kennedy is probably or likely guilty. In those circumstances, I must find him not guilty, because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
[252] I should also remember, however, that it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
[253] If, at the end of the case, after considering all the evidence, I am sure that Mr. Kennedy committed the offence, I should find Mr. Kennedy guilty of it, since I would have been satisfied of his guilt of that offence beyond a reasonable doubt.
[254] If, at the end of the case, based on all of the evidence or the absence of evidence, or the credibility of one or more of the witnesses or the reliability of the witnesses’ evidence, I am not sure that Mr. Kennedy committed the offence or offences, I should find him not guilty of it.
4. The W. (D.) Principles
[255] As I have identified, the defence asserts that there is evidence favourable to the accused before the court in this case. Such evidence includes what the defence submits are inconsistencies in the evidence of the complainant with respect to what happened to her in the course of the assault, the inconsistencies in her testimony about matters other than what occurred to her during the course of the assault, her manner of testifying, her inability to state the names of the five friends of Chuck’s that she met, including the woman she planned her escape with, and her inability to account for large periods of time on the 29^th^ and 30^th^ into the morning of October 1^st^. The defence also points out that the evidence of Sgt. Watt and Cathy Doyle contradicts the complainant, including the improbability of minimal injuries.
[256] Therefore, I apply the WD principles considering such evidence in the context of all of the evidence.
[257] If I believe the evidence of the accused, then I must find him not guilty.
[258] Even if I do not believe such evidence, if the evidence favourable to the accused leaves me with a reasonable doubt as to his guilt, I must find him not guilty.
[259] Even if I do not believe the evidence favourable to the defence and it does not leave me with a reasonable doubt, then if, on consideration of all of the evidence, I am left with a reasonable doubt, I must find the accused not guilty.
[260] The court is not to simply choose either the evidence favourable to the prosecution, or the evidence favourable to the defence. Rejecting one does not mean the court must accept the other.
[261] The stark alternative of believing one side’s evidence over that of the other side excludes the possibility of being unable to resolve conflicting evidence, and thus being left in a state of reasonable doubt on whether the Crown has proven its case.
[262] The issue is not which of two versions is true, but rather, on the whole of the evidence, whether the Crown has proven the guilt of Mr. Kennedy beyond a reasonable doubt.
[263] Justice Michael Code, in a paper entitled “Applying the W.D. Framework – What Has Changed”, in May 2011, states:
[18] … Accordingly, it should be made clear in your reasons, and in instructions to the jury, that steps 1 and 2 in the W. (D.) formula are only to be undertaken in the context of considering all the other conflicting evidence. … As Feldman J.A. explained in R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.), in relation to a trial judge who had elaborated on steps 1 and 2 in the manner suggested herein:
He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W. (D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. See: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para 5 (C.A.). …
5. Credibility and Reliability
[264] Both counsel submit, and I agree, that the decision in this case turns on the court’s assessment of the credibility and reliability of the testimony of the complainant.
[265] In R. v. Nyznik, 2017 ONSC 4392, Justice Anne Molloy has stated the principles as follows:
15 … Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her 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. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.
[266] In R. v. Slatter, 2019 ONCA 807, Trotter J.A. pointed out, at para. 60:
As this court has pointed out, credibility and reliability are not the same thing. "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 i. observe; ii. recall; and iii. recount events in issue". Thus "[c]redibility ... is not a proxy for reliability: a credible witness may give unreliable evidence." [Citations omitted]
[267] Justice Mossip in R. v. Lai, 2020 ONSC 231, at paras. 346 to 351, states the principles in similar fashion. Specifically, at para. 352, Justice Mossip states:
352 A trial judge must consider the following, among other questions when assessing a witnesses' testimony.
- Consistency of the witnesses' evidence:
• Internally;
• Between examination-in-chief and cross-examination;
• With other witnesses/documentary or physical evidence;
• Is there a prior inconsistent statement;
• Is there an explanation for any inconsistency?
Is the witnesses' evidence inherently plausible?
Did the witness answer the questions asked or was the witness evasive, unresponsive, or argumentative?
6. Assessing the Evidence of a Witness
[268] In R. v. M.G. 1994 CanLII 8733 (ON CA), [1994] 93 C.C.C. (3d) 347 (ONCA), the Court of Appeal held that the most valuable means of assessing the credibility of crucial witnesses is to examine the consistency of their evidence.
[269] Inconsistencies on minor matters or matters of detail are normal and are to be expected. Where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The court must then decide if it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.
[270] The totality of the inconsistencies is also an important consideration in order to assess whether a witness' evidence is reliable. What is important is the significance of the inconsistency.
[271] The court may accept all, part or none of the evidence of a witness. The trier of fact is entitled to accept part of the witness' evidence and reject other parts. Similarly, the trier of fact can afford different weight to different parts of the evidence that the trier has accepted (R. v. A.(F.), [2010] SCJ No. 44, at paragraph 65).
[272] The Court of Appeal has also stated the same principle in R. v. M. (A.), 2014 ONCA 769, 2014 CarswellOnt 15263, at paras. 12-13.
[273] At para. 43 of R. v. Sanichar, 2012 ONCA 117, Justice Blair lists four factors that ought to be present in a proper reliability analysis. These include:
The need to look for confirmatory evidence where it should have been available, particularly given inconsistencies and contradictions if they exist in a complainant’s testimony;
The concern that an abundance of detail in cases involving distant events may not necessarily imply an accurate memory;
The absence of evidence available to support the complainant’s testimony in key areas; and
The simple concern that the vicissitudes and influences of life over a long period can have an impact on such things as motive and the reliability of the witness’ testimony.
7. Inconsistencies about matters other than the core details of the alleged offence
[274] In R. v. Roth, 2020 BCCA 240, the Court stated:
125 The problematic parts of the complainant's evidence, highlighted here, did not involve her testimony on the primary fact in dispute, namely, her assertion that she did not subjectively consent to the sexual activity at the time it occurred. However, the inconsistencies were nonetheless material to assessing the complainant's overall credibility and the reliability of her testimony, including, indirectly, her testimony on the issue of consent. The inconsistencies were tethered to evidence relevant to the extent and mutuality of sexual interaction during the cab ride, the dynamics surrounding the appellant's entry into the complainant's home, the degree of control the appellant exerted over the complainant during the sexual interaction and while in her home, and the complainant's fear. If the judge found that the complainant lacked sincerity or honesty on the latter aspects of her evidence, although certainly not determinative, those findings could assist in evaluating and weighing the evidence specific to the principal issue at trial, namely, consent.
8. Disclosure and Reaction to Sexual Assault
[275] In this case, considerable evidence was adduced in regard to the various opportunities that the complainant had to disclose what had happened to her earlier and to escape earlier from the accused. The defence submits that the Court must therefore be highly suspicious of her credibility and reliability.
[276] Accordingly, it is important to bear in mind the principles set out in the case law that bear on such a submission.
[277] In R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275, at paragraph 65, the Supreme Court of Canada says:
65 A trial judge should recognize and so instruct a jury that 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. (italics added)
[278] The Court of Appeal, in R. v. Kiss, 2018 ONCA 184, goes on to explain, at paragraph 101, that:
The principle in D.D. is not confined to delays in reporting. It relates to any stereotypical assumption about how sexual assault victims are apt to behave, and it is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.
[279] Also relevant in this case is the concept of piecemeal disclosure as identified in R. v. D.P., 2017 ONCA 263.
9. Consistency on the Core Details of the Alleged Offences
[280] As I have indicated in my summary of the evidence, defence counsel cross-examined the complainant on her allegations concerning the assaultive behaviour.
[281] In R. v. R.A., 2017 ONCA 714, [2017] O.J. No. 4772, (Ont. C.A.) the Court stated:
46 Third, an appellate court should not interfere with a trial judge's findings of credibility if the core of the complainant's allegations against an appellant remain largely intact on a review of the entirety of the evidence:
53 This was a credibility case, and at the end of the day the core of the complainant's allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant's evidence, and ultimately decided to accept her evidence in its entirety.
Also relevant in this regard is the decision of the Court of Appeal in R. v. R.F., 2022 ONCA 77.
10. No Need for Corroboration
[282] In Nyznik, Justice Molloy said:
198 It is possible to make a finding of sexual assault based solely on the uncorroborated evidence of one witness, usually the complainant. Indeed, it is typically the case that there will be no other witnesses, and often the case that there will be no corroboration on the material points. However, where there are frailties in the complainant's evidence, as is the case here, it is useful to look for corroboration. …
Analysis
[283] A great deal of evidence was adduced to the effect that the complainant had opportunities to disclose earlier and to escape earlier than she did. With respect to the defence submissions that I must be left with a reasonable doubt about the credibility and reliability of the complainant as to the assaultive behaviour because she did not disclose earlier, and did not try to escape earlier, the principles in DD, Kiss and DP direct that such evidence must not give rise to an adverse inference against the credibility or reliability of the complainant. Furthermore, the complainant offered an explanation to the effect that she felt that she was in the presence of Mr. Kennedy. I must also consider the evidence that as soon as she was out of his presence, in her mind, she did disclose, as confirmed by Ms. Doyle. That the complainant did not disclose earlier or escape earlier despite apparent opportunities to do so plays no role in and does not influence my assessment of her credibility and reliability as a witness.
[284] The WD principle applies in view of the evidence that the defence submits is favourable to Mr. Kennedy as I have previously identified. In this case, I must consider whether in the context of the whole of the evidence such evidence leaves me with a reasonable doubt as to the guilt of the accused in accordance with Steps 1 and 2 of WD.
Inconsistencies other than as to the Assaultive Behaviour
[285] In this regard, I have considered the principle in Roth.
[286] I have considered the inconsistencies between the evidence of the complainant and that of Sgt. Watt and Cathy Doyle. Where there are differences, I accept the evidence of Sgt. Watt and Cathy Doyle. They are trained, objective observers in the circumstances. In my view, such matters are peripheral to the allegations that are at the core of the offences charged. These inconsistencies do not leave me with a reasonable doubt as to the guilt of the accused in regard to the matters charged.
[287] The evidence that the complainant cannot account for large periods of time, as to what she did or the conversation she had with people, and that she cannot remember the names of the five friends of Mr. Kennedy are also peripheral to the issues in this case. In the circumstances, an assault upon her would be of more significance to the complainant.
[288] The inconsistency as to whether they left the house on September 29 or not does not weigh negatively against the credibility and reliability of the complainant. As pointed out in the evidence, she made statements to the police consistent with her trial testimony.
[289] I have considered these various concerns cumulatively. In my view, they are matters peripheral to the assaultive behaviour and do not leave me with a reasonable doubt with respect to my assessment of the credibility and reliability of the testimony of the complainant as to the core details of what she alleges.
No Visible Injury
[290] The defence strongly submits that given the viciousness of the assaultive behaviour as described by the complainant, I should find her to be wholly incredible and unreliable, in view of the testimony of Sgt. Watt and Cathy Doyle that there were no visible injuries, other than as described by Ms. Doyle. The evidence of the complainant is that she did not suffer any facial injuries other than a bloody nose and some swelling at the bridge of her nose, and also pain to her torso. It would be speculation for this court to assume that any greater injury should have been visible. In this case, neither party adduced any evidence about how hard Mr. Kennedy punched the complainant in the face.
[291] The defence also points out that there is no evidence of damage to the kitchen, which he submits one would expect reasonably to have been present. However, there was no testimony by the complainant that there was any damage to the kitchen.
Inconsistencies with respect to the Assaultive Behaviour
[292] The defence cross-examined the complainant on the sequence of events or what occurred when. He identified an inconsistency as to what the first thing the accused did after he threw her across the floor initially. The defence identified that her testimony and her statements are inconsistent as to when in the assault she first began to urinate. The defence also identified an inconsistency in her testimony as to what else he was doing to her when he was pushing her face into the urine. The defence also identified an inconsistency in her testimony as to whether he was telling her that he was going to kill her in the barn at the same time as he was tying her hands and taping her mouth. She agreed with the suggestion that in respect to her trial testimony on this latter point, she had gained this memory over time.
[293] She also agreed in her testimony that her memory as to certain matters had not improved over time.
[294] With respect to all of these inconsistencies, the court must be mindful that the events alleged occurred 7 years prior to the testimony at trial. Her statement to police was made in 2017 and her preliminary inquiry testimony was in 2019.
[295] In my view, inconsistencies as to the sequence of the assaultive behaviour evidence is understandable given the unexpected sudden attack, “in a blink” during an argument concerning missing their children, which took place over a period of some 20 minutes, on the evidence of the complainant, and caused her to cry and fear for her life. Inconsistencies of that nature are reasonably expected and, in my view, do not negatively impact upon her credibility and reliability on the core details.
Manner of Testifying
[296] The defence submitted that I should be concerned that in cross-examination, in particular, concerning the sequence of events and prior statements, in that regard, the complainant was combative, frustrated, refused to continue and uttered words under her breath.
[297] In that connection, and as well, in connection with the inconsistencies identified, the court must be mindful, as we frequently tell juries, that giving evidence in a trial is not a common experience for most witnesses. People react and appear differently.
[298] The testimony of the complainant was otherwise straightforward and responsive and to the point. There is no evidence of ill will between the complainant and the accused. She wanted to get together with him, was happy that they did and testified that they had a good night on the 28^th^ . During her testimony at trial, there was no indication of vindictiveness, malice or animus towards Mr. Kennedy. She gave a detailed account of the assaultive behaviour. There was no apparent exaggeration or embellishment as to extent of her injuries. For example, she did not testify that there were forceful words or physical force used by the accused in connection with the sexual assault. Her testimony limited the duration of the assault to 20 minutes with no evidence to suggest that she had to identify such a timeframe. She did not claim to have suffered a fractured nose during the assault when offered the opportunity in cross-examination to do so. She did not assert that the accused himself maintained a control over her between the end of the assault and her leaving the residence on October 1 through words, physical force or otherwise.
[299] I accept her explanations, where she was able to provide them, and do not find it unreasonable in all of the circumstances when she states that she does not know why she did not do or say certain things.
[300] In considering all of the evidence which the defence submits favours Mr. Kennedy, I am not left with a reasonable doubt as to the guilt of the accused on the evidence.
[301] Turning to Step 3 of WD, I must consider whether on the whole of the evidence the Crown has proven the offences as charged beyond a reasonable doubt.
[302] I repeat that there is no burden whatsoever on Mr. Kennedy to prove or disprove anything.
[303] I find that on the whole of the evidence, the core of the complainant’s allegations was consistent throughout. Her description of the assaultive behaviour was compelling. She provided graphic details as to what the assault entailed. It was a traumatic event for her. This is a key finding on the authority of RA, and RF.
[304] I find that, although there is no need for corroboration, there is confirming evidence in the testimony of Cathy Doyle. She confirmed that the complainant was a walk-in on October 1, 2015, at approximately the same time of day as stated by the complainant. She confirmed that the complainant was upset, disheveled and not herself. Cathy Doyle observed red marks on the neck of the complainant. Cathy Doyle confirmed the testimony of the complainant that the complainant was carrying her purse and a grocery bag. On the authority of Woollam, the post event demeanour or emotional state of the complainant is admissible and may be used to support a complainant’s evidence of a sexual assault. In the present case, there is no other explanation in the evidence that would explain her demeanour and upset when she met with Cathy Doyle. I note that this was the first opportunity to be out of the presence of the accused, out of his household, and out of the presence of people known only to him.
[305] The testimony of Sgt. Watt confirms the testimony of the complainant to the limited extent that the police did attend on the morning of October 30 and that they were investigating the murder of the accused’s brother-in-law.
[306] The complainant impressed me as a witness who did her best to answer the questions asked of her at trial truthfully, and when confronted with why she didn’t do something or say something, she offered a reasonable explanation or admitted that she did not know why.
[307] It is significant that the evidence of the complainant with respect to the sexual assault allegation was unshaken.
[308] Only because counsel raised the legal issue, I would comment that I have instructed myself on the principles set out in R. v. Ignacio. I do not and have not placed any obligation on the accused to demonstrate why the complainant would fabricate her evidence or to prove that she did fabricate her evidence. I have put no weight, insofar as my findings on credibility and reliability are concerned, on this issue. That issue played no role in my decision.
[309] For these reasons, I believe the complainant’s testimony as to the core details of the assault that she suffered through on the evening of September 29, 2015.
[310] I am left with a reasonable doubt that the accused was telling her that he was going to kill her in the barn while he was tying her hands and taping her mouth, as to when she first urinated in the course of events, what else he was doing when he was pushing her face into her urine, and what the first thing was that he did after throwing her across the room initially. These are minor details as to the order of events of what the complainant described as a traumatizing event. They do not impair my acceptance of the core details of the assault as she described.
[311] I find that the Crown has proven beyond a reasonable doubt the core details of the assaultive behaviour.
The Offences charged arising from September 29, 2015
Attempted murder
[312] On this count, I am left with a reasonable doubt on both the mental element required and the actus reus. On the evidence of the complainant, they had a good night before, and the assault began unexpectedly, “in a blink”. There was certainly no prior plan.
[313] With respect to the evidence of the intervention of Sandra, I must be left with a reasonable doubt that she was present at the time Sgt. Watt was present on the property. However, that does not detract from the evidence of the complainant that Sandra arrived the night before, was invited into the house, spent the night with Mr. Kennedy and remained overnight. I also take into consideration that the evidence is that there was no furtherance of any such intention to kill following the arrival of Sandra or up to October 1 when the complainant left the residence.
[314] In any event, I cannot find that it has been proven beyond a reasonable doubt that Mr. Kennedy went beyond mere preparation within the meaning of the authorities.
[315] There is no evidence of a weapon, or if or how tying the complainant’s hands would further an intent to kill her. He took the opportunity to choke her twice, to near blackout, but he chose to stop. It is reasonable to infer that choking to death would not require the barn or leave a mess in the kitchen. As stated, I have a reasonable doubt that Mr. Kennedy was saying he was going to kill her while tying her hands. He demonstrated his ability to pickup and throw his 115 pounds victim across the kitchen floor without binding her. I cannot find on the evidence how any of what the accused did to the complainant went beyond some preparatory step toward an unidentifiable goal.
[316] There will be a finding of not guilty on this count.
Unlawful Confinement
[317] Given my findings of fact, and the concession by defence, I find that the Crown has proven this count beyond a reasonable doubt and there will be a finding of guilt.
Choking with Intent
[318] On the basis of this count as particularized in the indictment, I find the accused not guilty. The choking took place in the course of an assault and in my view, was an element of the assault.
Assault causing bodily harm
[319] Clearly on the facts as I have found them, the accused is guilty of assaulting the complainant by punching her, kicking her, slamming her head into the cupboards, throwing her across the floor and choking her.
[320] The evidence of the complainant that she still suffers from difficulty with her nose and that the injuries to her body were more than trifling and transient satisfy me that the Crown has proven that she suffered bodily harm beyond a reasonable doubt.
[321] Mr. Kennedy is found guilty of this count.
The Sexual Assault Allegation
[322] The complainant’s testimony concerning the sexual assault allegation was brief. I reproduce it in full.
Q. … I’m going to ask you about this sexual activity. When does that happen – what time of day?
A. Um…late morning, maybe…maybe 11:00.
Q. Can you take me through that – like, what occurs?
A. Yeah. Um, they came in…like, Chuck and the guy, and the guy wanted his girlfriend to go out with him, outside… I don’t know what they were going to do. So, Chuck came inside, and stayed with me. He, um….he wanted to have intercourse…sex, but I told him I didn’t want to, I wasn’t feeling well, and, um… And he told me that it’s not always about me – I could suck it up. So, um, I took my pants off, and…and got on top of him, on the couch… And it was not enjoyable at all. I felt like I was being taken advantage of…because of the…what happened. It was the hardest thing I ever had to do – was try and…try and be okay with it…but I wasn’t. So, I told him it hurt, because I didn’t feel well, and… He got mad, eventually, and literally threw me off him.
Q. Sorry, he… The last thing you said…? He did…what to you?
A. Because I was complaining, and I started to cry and said…you know, I wasn’t into it. It hurt. And he threw me off of him.
Q. I’m going to have to ask you a few more questions about this. Okay? Where in the house does this happen?
A. On the couch in the living room.
Q. And no one else observing this happen?
A. No.
Q. Where are the other two people?
A. Outside.
Q. And you’ve indicated that you… Is he sitting on the couch?
A. Yes.
Q. And you get on top of him?
A. Yes – sitting.
Q. Sitting on his lap, basically?
A. Right.
Q. Um, who takes off your pants?
A. I do.
Q. And is there actual—
A. Yeah.
Q. --penetration that occurs, here?
A. There is…not much…five minutes, that’s about it.
Q. Vaginal intercourse?
A. Right.
Q. And you say that you felt like you were being taken advantage of. Can you just explain why you felt that way?
A. ‘Cause, after what he did to me, the night before, I just… It was like I was having sex with a stranger, and… That’s why I told him I didn’t want to do it, but…I did, anyway, to try and make him happy. I just didn’t know, if I said the wrong thing, or did the wrong thing, if he would go off on me again.
Q. Did you feel like you had a choice?
A. No.
Q. Why not?
A. Because I didn’t want him to get angry again, and he wanted to have sex. So, I didn’t want to say “no”…even though I tried.
Q. During the…this sexual aspect of the incident, does he strike you in any way, or—
A. No.
Q. How does he throw you… You said he throws you—
A. He just kind of pushes me off his lap.
[323] The complainant was not cross-examined on this evidence.
[324] There was no other evidence concerning the allegation.
Legal Principles
[325] The legal principles concerning the actus reus and the mens rea are set out in R. v. Ewanchuk, 1999 CanLII 711 (SCC), 1999 1 SCR 330 and R. v. Barton, 2019 SCC 33.
[326] The relevant provisions of the Criminal Code are s. 265(3)(b) and 273.2(b).
[327] I have carefully instructed myself that myths and stereotypes about sexual assault victims have no place in a rational and just system of law. I have not approached the evidence of the complainant with any such unlawful assumptions based on myths or stereotypes. Such stereo typical assumptions have no place in Canadian law. Ewanchuk, para.82 and 103, R. v. Gordon, 2018 ONSC 2702, paras. 81 and 82, R. v. Lacombe, 2019 ONCA 938, para. 31 to 35, R. v. S.L., 2020 ONSC 4036, paras. 103 and 104.
[328] Relevant principles of law are set out by Justice Molloy in Nyznik, at paras. 12, 16 and 17.
[329] In brief, Justice Molloy states: “However, the focus of a criminal trial is not the vindication of the complainant.” She goes on to state: “Although the slogan "Believe the victim" has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.”
[330] I must make my decision based solely on the evidence and in accordance with the law.
Analysis
[331] For the reasons that I have given previously, I find that the complainant is a credible and reliable witness in respect of the core details of what she alleges the accused did to her. This includes her description of the sexual assault that she alleges.
The Actus Reus
[332] I accept the evidence of the complainant that she did not consent to the sexual activity on October 1. I find her to be a credible and reliable witness with respect to the evidence that she gave on that. She was not challenged on it. She testified that at the outset she told the accused that she did not want to have sex that she was not feeling well.
[333] On this basis, I find that the Crown has proven the actus reus of the offence beyond a reasonable doubt. Ewanchuk paras. 25, 26, 27, 29, 31. To the extent that the conduct of the complainant may tend to contradict her claim that she did not consent, Ewanchuk provides the following guidance, “If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven.” para. 31.
[334] If I am wrong on that finding, I further find that there was no consent as a matter of law because the complainant believed that she was choosing between permitting herself to be touched sexually or risk being subject to the application of force. She testified that she felt that she did not have a choice because of her fear of the accused getting angry and subjecting her to further force. Ewanchuk, para. 38. I find that the complainant did not want to be touched sexually and made her decision to participate in the sexual activity as a result of an honestly held fear. “The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated”. Ewanchuk, paras. 38, 39, 40. Barton, para. 87 to 90. In this case, I find that the complainant’s fear was reasonable as she described.
[335] I find that the Crown has proven beyond a reasonable doubt that there was no consent on the part of the complainant to the sexual activity.
[336] I find that the Crown has proven the actus reus of the sexual assault charge beyond a reasonable doubt.
The Mens Rea
[337] The evidence is undisputed that the complainant told the accused that she did not want to have sex at that time. His response was “it’s not always about me – I could suck it up.” He took no steps whatsoever to ascertain that the complainant was consenting, after he was told by her that she did not want to have sex with him.
[338] At para. 52 in Ewanchuk, the court states “Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she had truly changed her mind before proceeding with further intimacies. The accused cannot reply on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists…”.
[339] The mens rea of sexual assault contains two elements, the intention to touch, and knowing of, or being reckless of or wilfully blind to, the lack of consent on the part of the person touched. Ewanchuk, para. 42. It is not necessary for the accused to testify in order to raise the issue of honest but mistaken belief in communicated consent.
[340] There is no burden of proof on the accused. Support for the defence may stem from any of the evidence before the court including the Crown’s case in chief and the testimony of the complainant. The question is whether the accused believed that he had obtained consent. What matters is whether the accused believed the complainant effectively said ‘yes”, through her words and/or actions. In this context, consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity. Ewanchuk, paras. 44, 47, 49.
[341] The defence urges that the court should have a reasonable doubt about Mr. Kennedy’s honest but mistaken belief, based on the actions of the complainant in participating as she described in the sexual activity and also, based on the evidence that she said “she didn’t want to say no”, there was no force or threat, and he knew that she had not told the police about the assault, she had stayed with him and come back to his house after the assault, she did not flee when she had been left alone for 1 to 2 hours with his friends, and she had said words to the effect that, don’t worry this stays between us.
[342] Barton makes it clear that s. 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent – “no reasonable steps, no defence.” It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. Para. 104. “An accused cannot point to his reliance on the complainant’s silence, passivity or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law.” Para. 107. The more invasive the sexual activity in question, common sense suggests a reasonable person would take greater care in ascertaining consent. Para. 108.
[343] I find that the Crown has proven beyond a reasonable doubt that Mr. Kennedy, in the circumstances which he would have known at the time, did not take reasonable steps to ascertain that the complainant was consenting. His observations of her conduct to engage in a sexual activity, and his knowledge as to how she had acted subsequent to the assault do not amount to reasonable steps. She said she did not want to have sex. What he did after that, namely saying, it’s not always about you – suck it up, and making observations of what she then did does not, in my view, constitute reasonable steps. In my view, her actions, in the circumstances, were silence and ambiguous. As stated in Ewanchuk, he should have made certain that she had truly changed her mind before proceeding with further intimacies. He relied on silence and equivocal conduct to indicate that there had been a change of heart and that consent now existed.
[344] I find that the Crown has proven beyond a reasonable doubt the mens rea of the sexual assault charge.
[345] I find Mr. Kennedy guilty of sexual assault as charged.
Summary
[346] For the reasons that I have given, I find Mr. Kennedy not guilty of attempted murder, and of choking with intent.
[347] I find Mr. Kennedy guilty of unlawful confinement, assault bodily harm and sexual assault.
Tranmer J.
Handed down (orally): 7 December 2022
COURT FILE NO.: CR-19-00000128-0000(Kingston)
DATE: 2022 Dec 07
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
CHARLES PERCY KENNEDY
Accused
REASONS FOR JUDGMENT
Tranmer J.
Handed down (orally): 7 December 2022