COURT FILE NO.: CR-18-1196-00 DATE: 2023 03 01
Ontario
Superior Court of Justice
B E T W E E N:
HIS MAJESTY THE KING Gursharn Gill for the Crown
- and –
A.G. Brian Eberdt for the Defendant
Heard: January 9-13, 2023
Reasons for Judgment
D.E Harris J.
Introduction
[1] It has often been observed that sexual crimes are particularly challenging to prosecute as by their very nature they take place in private with no one present except the complainant and the accused. It is difficult to attain the high level of certainty required by proof beyond a reasonable doubt when one witness testifies that they were assaulted and the accused person denies it and there is no other evidence upon which to rely: C. (R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (S.C.C.), at para. 81 [1]. Both witnesses begin on the same playing field. The complainant gains no extra credibility by coming forward and complaining: R. v. J.C., 2021 ONCA 131 at paras. 88-89. The accused does not lose testimonial credibility because he is the subject of a criminal accusation: R. v. Laboucan, 2010 SCC 12 at paras. 11-15.
[2] Many years ago, the mandatory requirement for corroboration in sexual cases, vestiges of a bygone era, was repealed. The provision was an artifact of the pernicious myth that women who allege sexual abuse are inherently unbelievable and untrustworthy: R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.), at pp. 347–48 and 352–54. In the modern day, by virtue of Section 274 of the Criminal Code, corroboration is not required and a trial judge is prohibited from instructing the jury that it is unsafe to find guilt in the absence of corroboration.
[3] This state of the law does not change the fact that to rise to the high level of certainty required for criminal proof, corroboration or confirmation of the allegations, if it exists, can be invaluable. It allows a verdict to rest on more than the unadorned credibility of the complainant, evidence often directly contradicted by the testimony of the accused. Independent evidence capable of strengthening the complainant’s evidence may often transform the nature of the decision making process.
[4] In light of the dilemma of proof in a “she said, he said” trial, if there is potential confirmation or support for the complainant’s evidence, the analysis ought to incorporate a close and rigorous examination of this potential confirmatory evidence. That is true here. Scrutiny of several pieces of evidence surrounding the allegations is critical in coming to a fair and just verdict. It is necessarily a key focus of these reasons. As is usually the case in sexual offence trials, at bottom, the decision in this trial involves credibility assessments but credibility assessments aided by potentially confirmatory evidence.
Summary of the Allegations
[5] The complainant DG, now 27 years old, and the accused AG, now 26, met in a Police Foundations course at Sheridan College and soon started dating. After a time, Mr. G. with the blessing of Ms. H.’s parents, began living in their home with them, Ms. H. and Ms. H’s younger sister.
[6] Ms. H. and Mr. G. had a short turbulent romance which, according to Ms. H., ended with Mr. G. raping her in her home. Ms. H. described Mr. G. as jealous and controlling. Ms. H. testified that she felt from the beginning of the relationship that she was always under a lot of pressure and was not to make mistakes. In his eyes, she could not do anything right. She was told who she could or could not hang out with and how to speak to people and act in public. There was an argument almost every day. Mr. G., who testified in his own defence, denied the allegations and, for his part, described Ms. H. as highly volatile, self-harming and often hysterical.
[7] The indictment contains five counts, counts one to four from the same date, September 23-24, 2017. The fifth count pre-dated these four and particularized August 17, 2017. Evidence outside the boundaries of the indictment was also adduced with the agreement of both parties under the aegis of R. v. D.S.F., [1999] O.J. No. 688 (C.A.).
[8] I will summarize the high points of the allegations chronologically beginning with the events not charged in the indictment. I will not summarize all of the evidence.
[9] To begin with, both graduated from the Police Foundations course on June 8, 2017 and went to a bar in Milton to celebrate. They returned late at night to her home. Both agreed that the arrangement was that he would sleep in the guest room when her parents were home but when they were not, he would sleep with her in her room. It was Ms. H’s evidence that because she had fallen asleep prematurely, Mr. G. became enraged, barged into her room, tore the covers off her, grabbed her phone and slapped her in the face with it, all the while asking her why she did not answer. The blows were not hard enough to leave a mark. Mr. G. promised not to do anything like it again. Ms. H. eventually forgave him.
[10] Mr. G.’s account was totally different. He testified that Ms. H. was annoyed with him for looking at girls at the bar. He did try to call her on her phone, but she did not answer. He went upstairs to her room and tried to touch her, and she slapped his hand away. They continued arguing downstairs. She accused him of cheating on her and claimed that he did not love her.
[11] There was another incident in which it was alleged that he prevented her from leaving the home in early morning to go to work. Lastly, there was an incident in September that both the complainant and accused referred to in their evidence. I will not summarize these.
[12] Mr. G. began living with the H family full-time sometime in early July. In August there was another incident in which he flipped her on to her back in bed, screamed at her and punched her thigh. Ms. H. told him to stop and get off of her. He eventually got off of her and paced for a while, threatening suicide. Like in the June incident, she was in shock. Mr. G. denied this incident.
Count 5 of the Indictment
[13] An allegation of assault causing bodily harm from the day after this incident, that is, August 17, 2017, formed the subject of count 5. Ms. H’s evidence was that she was still upset about what had happened the night before and was in the midst of breaking up with Mr. G. Begging her tearfully not to break up with him, he kneeled down, wrapped his arms around her legs and, turning his head to the side, out of the blue, bit her extremely hard on the inside of her left thigh. She screamed out and cried; it was the most pain she had ever felt. Ms. H’s evidence was that he explained that he had bit her out of passion. The wound was painful and took several weeks to heal.
[14] Ms. H. took pictures of the wound with her phone but according to her, they were deleted by Mr. G. He denied doing so in his evidence.
[15] Mr. G. testified that this was actually a sexual encounter. A case management judge ruled this evidence admissible under Section 276 of the Code. It was Mr. G’s evidence that Ms. H. wanted to have sex with him on that occasion. Her father was home. She wanted to leave her bedroom door open nonetheless so she could see herself having sex with Mr. G. in a mirror. Halfway through, he asked her to close the door but she left it open. He wanted him to perform oral sex on her and in the process he bit her thigh. He said it was their sexual practice to nibble on each other. She told him to bite harder, and then harder again, which he did each time. Eventually, she gasped. He raised his head to ask if she was okay. He saw some redness on the thigh but no bruising and nothing that would last more than a day.
The Text Message
[16] There is potentially confirmatory evidence with respect to count 5. There was a text conversation from Ms. H’s phone between the two after the alleged incident that day, August 17, 2017. The pertinent parts of the conversation are:
AG: “I am gunna treat you so good now baby I swear” DH: “hope so”
And then after some love you’s back and forth:
AG: “ok, im sorry about the bite I didn’t do it to hurt you”
[17] This was an apology. “Sorry for the bite” was an outright apology but so too was the “gunna treat you so good now” promise Mr. G. made. He was pledging to make it up to her for the bite. This was also the way it was taken by Ms. H. when she answered, “hope so.”
[18] There are two reasons which lead me to a factual finding that Ms. H’s evidence on this point is likely to be true while Mr. G’s is likely to be untrue. Internally, Mr. G’s evidence suffers from the flaw that biting hard someone’s inner thigh--a sensitive part of the body-- several times to the point where the recipient of the bite gasps, would not normally cause only a slight red mark that would go away in a day. That is implausible. Second and of more weight, there would be no need to fall over oneself apologizing for such a transient and trivial impression made in the throes of sexual passion.
[19] On the other hand, on Ms. H’s version recounting an extremely hard bite leaving a significant wound taking several weeks to heal, there would be every reason to apologize. The nature of the apology tends to bolster Ms. H’s evidence and credibility while detracting from Mr. G’s.
[20] This is as good a juncture as any to consider Mr. E’s argument that Ms. H. was “cavalier” in her evidence. By this he meant that in court she had insufficient appreciation of the gravity of the situation and that her evidence lacked precision and certainty. Reference was also made to her saying that she “guessed” that Mr. G. got off her after the incident the day before the biting allegation. Other instances of the use of this word were cited as well.
[21] I disagree. In my view, neither Ms. H’s demeanour nor the content of her answers was cavalier as that word is commonly understood. She was serious throughout her evidence, giving firm and clear responses. I saw no indication whatever of flippancy or casual indifference. It is true that at times she used the word “guess” and other qualifiers but it was appropriately used for situations in which her memory was not certain. That made sense with allegations that are now more than five years old. If anything, the use of conditional language showed that she was being careful to portray the true state of her memory and was not overstating it. Along with this, she was also willing to say she did not remember some details when that seemed completely reasonable and understandable in the circumstances. About the nucleus of the key allegations, she was largely consistent and unequivocal.
[22] It was my impression that Ms. H, having ample opportunity to do so, did not exaggerate her evidence. For example, when she testified about the defendant’s phone being used to strike her (not on September 24, 2017 but on the previous occasion), she said there was no lasting pain from it. She was perfectly willing to admit how intoxicated she was with respect to one of the allegations. Also, I did not detect a large pool of antagonism towards Mr. G in her evidence. Of course, those observations do not go very far. First, anger of this kind can easily be hidden. Second, in any case, neither the lack of exaggeration nor outright antagonism bolsters Ms. H’s testimonial factors but, instead, merely constitutes the absence of a detracting factor. It does not enhance her credibility: R. v. Alisaleh, 2020 ONCA 597 at paras. 16-18.
[23] There were, it is true, inconsistencies in Ms. H’s evidence. They were relatively minor in context and not matters of concern, in my opinion. For example, her evidence at the preliminary hearing and at trial were slightly different about how long the rape lasted. She said 3-5 minutes at the preliminary; 5-7 minutes at trial. Time is relative and in our minds may move at different speeds depending on one’s emotional state. In this case, Ms. H. testified that she was raped in her own home by her boyfriend during an extended period of criminal abuse. I view the discrepancy with respect to how long the rape lasted, particularly five years after the fact, as of no weight.
The Events of September 23-24, 2017; Counts 1-4 of the Indictment
Ms. H’s Evidence
[24] The indictment in counts 1 to 4 focuses on September 23 and 24, 2017. On the night of the 23rd, the two were in Guelph for Homecoming. Ms. H’s sister was going to university there. They went to two bars with friends and then returned home. Ms. H admitted she was quite intoxicated. She went upstairs to change. She heard a loud bang downstairs; she came down and saw that Mr. G. had broken a kitchen chair. She went back up to bed. Mr. G. entered her room, scratched her lower back as he had done before, lifted her bed onto its side, grabbed her face and head, and slammed her head into the wall. He headbutted her with his forehead and smacked her on the side of her head. She cowered in the corner. Out of rage, he kneed a hole in the wall of the bedroom. A photograph entered into evidence showed the hole. Ms. H’s mother testified for the Crown that she also saw the hole.
[25] Mr. G. then brought her into the guest room where he often slept, threw her on the bed and told her that she was a bad girlfriend. He then proceeded to drag her to the stairs, pulling her down the stairs. She missed the last six steps and fell down in a lot of pain. He carried her into the family room, tossed her onto a loveseat, squeezed her arms, and pulled her hair. He kicked her left ankle extremely hard.
[26] He then picked her up from the loveseat, dropped her on her back twice and then put her on the larger couch face first, putting his knee into her back with all his force, ripping her pajamas pants all the way up one side and her tank top as well. These are the assaults charged in count 1 of the indictment. The two of them ended up in her parents’ room where he “whipped” his phone at her as hard as he could, hitting her twice. This is the assault with a weapon allegation in count 2 of the indictment.
[27] Eventually he forced her to go for a car ride. He said that he wanted to show her videos of him being raped as a child, a topic he had mentioned before. As he was driving, he grabbed her left thigh and squeezed as hard as he could, saying that they were still together. She screamed at him and punched him in the face. Mr. G. veered off to an exit from the highway. People in a nearby car may have seen the commotion and followed them. Mr. G was able to lose them.
[28] Eventually he drove her home. They got out of the car and she tried to make a break for it to her neighbour’s house. He grabbed her and brought her back to her house. There is video footage from a nearby home showing this. In the home, under threat of violence with his phone, Mr. G. forced Ms. H to perform oral sex on him. She agreed because she did not want to get hurt. He then pushed her off her and took her to an ottoman. He pushed her into it face first, pulled down her pants and forcibly raped her from behind. She asked him to stop several times and tried to get away. He refused and continued for some considerable period of time.
[29] Afterwards, in shock, she pulled her pants up. He came over and said it was their last time. He said he was not going to finish in her; she was not sure what he meant. He allowed her to go up to her room; she had not slept in 24 hours.
[30] Ms. H.’s parents came home at about 1-1:30 p.m. on September 24, 2017 but left soon after for a social engagement. Mr. G. made excuses about why Ms. H. was still sleeping. According to Ms. H, Mr. G. closed the blinds, shut off both their phones, and then started talking about CSIS and how a sex trafficking ring had blown his cover. He said that people would come to inject her and take her to a safe house. He walked around speaking supposed code words into his cell phone and then put her in the closet, letting her out after a period of time. She believed him: she was sleep deprived and scared.
[31] Her parents came back home and the four of them ate dinner together. Ms. H. could not eat. Her mother sensed something was wrong and noticed that her left eyelid was swollen. Ms. H, falsely, told her mother that her eye was bothering her. The complainant and the accused went upstairs after dinner where they continued to argue and he continued to assault her. At one point, she freaked out and ran to the bathroom. He told her to shut up, her mother might hear. Her mother came upstairs while Mr. G. was packing his clothes. She asked what was going on and at that point, Ms. H. told her that Mr. G. had been assaulting her throughout their relationship.
Mr. G’s Evidence
[32] Mr. G’s evidence with respect to September 23-24, 2017, was that Ms. H. was belligerent and highly intoxicated at the two bars. The two were not getting along during the night. When they went back to her house, Ms. H. told him that he had been a “dick” to her throughout the month of August. Ms. H. then threw and broke the stool, not him. He laughed at her.
[33] She went upstairs and he heard loud banging. He saw her kicking and punching her vanity and head butting the wall. He touched her shoulder and she said, “fuck you” and started attacking him. She kicked him in the groin. He tried to defend himself but was unable to do so. It really hurt. He then grabbed her by the arms and squeezed hard. She said she would stop and so he released her. She then successfully kicked him in the groin for the second time. He was in great pain and this is when he kneed the wall putting a hole in the drywall. He then went downstairs and soon after he heard her fall down the stairs.
[34] They drove towards Burlington as Ms. H. testified but then returned. Mr. G. acknowledged that Ms. H. tried to run away once they arrived but he said that he corralled her in order to prevent her from harming herself. She was acting extremely erratically saying that if he did not love her, no one would. He cared about her and her safety.
[35] Mr. G. testified that there was sex but it was consensual with her initiating it. She was on top. In cross-examination, Mr. G. volunteered that she never said no, she never said that she did not want it. That seemed to be a pat response; he had already testified to the sexual activity being consensual. He told her afterwards that he did not “finish” inside of her because it was the last time they would have sex.
[36] This summary leads to the examination of three pieces of evidence which are capable of supporting or confirming Ms. H’s evidence: the hole in the wall, the video of Ms. H. running from her home and the bruises on her body a few days after the alleged offences.
The Hole in the Wall
[37] There is no dispute about there being a hole in the drywall in Ms. H’s bedroom or that Mr. G. caused it. Ms. H. and her mother testified to it, there was a photograph taken of it by Ms. H entered into evidence and Mr. G. testified to causing it in his evidence. Ms. H said that the hole was caused out of anger; Mr. G. said that it was a reaction to the pain of being kicked by Ms. H.. in the testicles.
[38] I found Mr. G’s evidence implausible in one fundamental respect. He said that Ms. H kicked him not once but twice in the testicles. She is 5’4” tall and about 115 pounds while he is about 6 feet tall and about 170 pounds. That a young man with his height and weight advantage could not protect himself in that very vulnerable area not once but twice is unlikely. The video of Ms. H. running from her home and then being corralled by Mr. G. graphically demonstrated his power and physical advantage over her.
[39] Second, it is unlikely that a man, having been kicked in that vulnerable area, would testify that it hurt a lot and, in reaction, he kicked the wall very hard, damaging it. As is well known, a blow to the testicles not only hurts, it is incapacitating. The usual consequence is writhing on the ground in pain. That Mr. G. had the wherewithal to do what he said he did is not credible, in my view.
The Video
[40] Both Ms. H. and Mr. G. testified, in essence, that the neighbour’s surveillance video accurately depicted what happened at about 9:13 a.m. on September 24, 2017 outside her house. She said that she was running to get away from him; he said that he captured her to prevent her from the self-harm she was threatening.
[41] I have studied the video carefully including running it in slow motion many times. Its resolution is quite poor. It is not possible to see where Ms. H. emerges from, whether a car or her home. But it is clear that she is running virtually full out. Mr. G. is right behind her from the start. He easily overtakes her within about three seconds and grabs her from one side. She appears to be resistant. When he catches her and puts her in a bear hug, she continues to make efforts to break away, kicking her legs futilely while being held off the ground. Nothing about his actions could be characterized as gentle or loving. One would expect him to be consoling but there was none of that. He appears very aggressive and antagonistic. He leads her back towards her house. Even in doing that, he keeps a close hold on her body throughout. This seems to be to ensure she does not attempt to run again.
[42] Ms. H. denied that she ran because she intended to commit self-harm as Mr. G. testified was the case. Mr. G.’s evidence about the self-harm was vague. Nothing was said about the means by which she was supposedly going to accomplish this. There was certainly no indication that she was going to run into traffic while going across the road, for example.
[43] In making my factual findings in this regard, I believe her and disbelieve him. The self-harm scenario is implausible and I do not believe it. Ms. H. could have more easily committed self-harm in her home than to run outside away from her home for that purpose.
[44] The video does not portray a man trying to prevent his girlfriend from hurting herself. He physically dominates her both in capturing her and then escorting her back to the home. While realizing that there are limitations in making those observations from the video, combining them with the basic implausibility of Mr. G’s story about the self-harm, the video stands as important confirmation for Ms. H.’s evidence.
The Bruises
[45] Ms. H. testified that after thinking it over for a few days and being encouraged by her parents, she came to the belief that Mr. G. should not get away with what he had done to her and that she wanted to seek justice. Soon after the incident, she had gone for a rape kit. On September 27, 2017, three days after the alleged offences, she went to the police. Photographs were taken of her and the photographs were put into evidence in the Crown’s case on this trial.
[46] The photos showing the bruising are supportive of Ms. G’s evidence that she was assaulted by Mr. G. There is a lot of bruising and some of it is quite severe. There are photos of a red bruise to her left eyelid which Ms. H. said was caused when she was poked in the eye by the accused. Ms. H’s left arm is quite badly bruised on the front of her shoulder and there is a separate bruise on the outside of the bicep. The back of this arm has bruises from as high as near the shoulder down most of the way to the elbow. Ms. H. said that there were fingerprint marks from his hands where he grabbed her and was pinching her at the same time. Ms. H. said that these bruises were from Mr. G. squeezing her. The bruises do appear to be in the form of fingers but it is not possible to be definitive. There is also a bruise in the corner just above the back of the arm pit and one further above it.
[47] On the back of the right arm, there is significant bruising from the elbow up to a few inches below the armpit. Again, Ms. H. said that these were from Mr. G. squeezing her arms. There was a mark on her lower back which Ms. H. said was the scratch made when Mr. G. ripped the covers off of her. The skin is broken slightly and there is some dried blood. There is some bruising on the right hip and on the lower ribs on the right side. There is also some bruising on the left hip.
[48] There is a bruise on the front of the left thigh and one on her lower buttock. There is a very large multi-coloured bruise on the left side of the leg just above the knee. Ms. H. testified that this was from Mr. G. “whipping” his phone at her. There is a bruise on her left ankle where Ms. H said that Mr. G. kicked her in the family room. There are other less significant bruises which will not be summarized here.
[49] Mr. G. in his evidence said he might well have caused some of the bruises--he could not be sure with each--but he said that what he had done was in self-defence. Specifically, he said that after Ms. H. broke the chair in the kitchen, she went upstairs and was kicking and punching in her bedroom and knocking her head against the wall. He came up and restrained her. This is the time as well in which she kicked him two successive times in the testicles. He testified that he squeezed her arms on the bed to restrain her. He grabbed her arms, below the shoulder, in the middle bicep and tricep area. There may have been other times he restrained her as well.
[50] I reject this evidence and find it completely implausible. The quantity, severity and location of the bruises over many areas of her body strongly favour Ms. H.’s version. A major obstacle underlying his evidence has already been touched upon. Mr. G. was much bigger and stronger than she. The surveillance video in which he chases her down and, with great ease, puts her in a bear hug, provides us with a concrete and virtually irrefutable real time demonstration of his vastly superior power. There was little effort needed to subdue her. She was no match for him. I do not believe for one moment that he needed to exert such force to restrain Ms. H. as to cause the extensive and widespread bruising on her body that is shown in the pictures.
The Missing Tank Top
[51] The defence put great emphasis on this evidence in arguing that Ms. H’s evidence and credibility were flawed. She testified that in the process of the rape itself, her pajama bottoms were ripped as was the tank top she was wearing. Ms. H. testified that Mr. G. likely took her pajama bottoms with him when he hastily packed his belongings and left her house on September 24, 2017. With respect to the tank top, in the rape kit form it is noted that she was in possession of clothing from the alleged assault. The box was ticked off on the form that the clothing was not damaged but in fact it was damaged. It was her evidence that she would have given the top to the officer-in-charge of the investigation when he came to her house. There was no evidence from the police one way or the other on this factual issue. The tank top was not put into evidence at trial.
[52] The defence argues that these circumstances with respect to the tank top should lead to a negative credibility finding against Ms. H. I disagree. It is impossible to tell whether the absence of the tank top was because of Ms. H. not turning it over or the police mishandling it. It was never shown that Ms. H’s evidence that she gave it to the officer was wrong or was contradicted by other evidence or inferences. This is not an instance in which an adverse inference against her credibility would be justified: R. c. Jolivet, 2000 SCC 29 at paras. 22-31.
[53] Even if we assume her evidence was wrong on this issue and she did not hand the tank top over to the police, this would be of limited value to demonstrate a lack of credibility. There is no reason to conclude that such a failure, if it occurred, was deliberate. Furthermore, of importance, the forensic value of the tank top was questionable. It had little independent value based on Ms. H’s or Mr. G’s evidence towards guilt or innocence. It can usefully be contrasted with the shirt in R. v. Kiss 2018 ONCA 184 at paras. 55-63, which the complainant said was ripped open by the accused at the outset of the sexual assault. Here, the tank top was ripped it but it was peripheral to the sexual assault allegations.
[54] Furthermore, the fact that the issue arose five years ago goes a long way to diminish any value attached to it and to the complainant’s alleged failure to turn it over to the police. Ms. H.’s memory was unlikely to be sharp on this issue after so much time.
[55] Applying the lost evidence and the failure to disclose authorities to this issue, the defence were not significantly prejudiced by the absence of the tank top: R. v. La, [1997] 2 S.C.R. 680; R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Bero, 12 M.V.R. (4th) 169, 151 C.C.C. (3d) 545 (Ont.C.A.). There was no detriment to the right to make full answer and defence nor was there any procedural unfairness in the tank top not being available at this trial. If the tank top had been handed over and was ripped-or was not ripped-either way it would not have been of significant consequence to the defence.
Conclusions
[56] Degrees of certainty are not measured in the fact-finding process. To require any standard of acceptance or belief for findings of fact would be to apply a two-stage application of the criminal burden. The law is clear that it would be an error to do so: R. v. Morin, [1988] 2 S.C.R. 345 at paras. 66-72 [2]. It is worth reiterating Sopinka J.’s holding that the fact-finding process ought not to grapple with standards of proof:
69 The concern which proponents of the two-stage process express is that facts which are doubtful will be used to establish guilt. The answer to this concern is that a chain is only as strong as its weakest link. If facts which are essential to a finding of guilt are still doubtful notwithstanding the support of other facts, this will produce a doubt in the mind of the jury that guilt has been proved beyond a reasonable doubt.
[57] In this case, it is only now after the fact-finding process is complete that it can be determined whether the Crown has achieved the high degree of certainty required to find guilt in a criminal case. The requirement of proof of the elements of the offence beyond a reasonable doubt must be superimposed on the findings of fact which have been made above.
[58] I have examined the evidence and submissions with respect to a potential motive to fabricate on Ms. H’s part. Of course, there is no obligation or burden on the defence to demonstrate that a complainant has a motive to fabricate. But if one is shown, it can diminish credibility. In this case, several motives were postulated. Ms. H. may have been embarrassed by her behaviour or she may have been pressured to go to the police by her parents. Also, with the relationship disintegrating, Ms. H. may have become vengeful and made false allegations against Mr. G.
[59] I do not put any significant weight on these possibilities. They were theoretical, existing only in the abstract. I saw nothing in the evidence that would support them. The confirmatory evidence independent of the parties excluded these possibilities.
[60] I return to where I began: the independent evidence potentially supporting the complainant’s evidence. There are four instances: the text apologizing for the bite, the hole in the wall in Ms. H’s bedroom, the video surveillance clip from September 24 and the bruises on Ms. H’s body after the alleged incident. The defendant Mr. G. has given testimonial explanations for each. Each of these explanations I have found implausible in their own right. I find that on balance each of the four areas of confirmation provides substantial support for Ms. H’s allegations as framed in the indictment. Taken together, Mr. G’s implausibilities assume substantial weight fortifying Ms. H’s evidence and, at the same time, diminishing Mr. G’s credibility and exculpatory evidence.
[61] Confirmatory evidence must be material and must be independent of the complainant: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 (S.C.C.), at paras. 37-40; R. v. Bradshaw 2017 SCC 35, [2017] 1 S.C.R. 865 at paras. 44-57; R. v. Chenier (2006), 205 C.C.C. (3d) 333 (Ont.C.A); R. v. Vetrovec, [1982] 1 S.C.R. 811 (S.C.C.), at p. 829; R. v. Kehler, 2004 SCC 11 at paras. 12-15; R. v. Zou, 2017 ONCA 90 at para. 40. Each of the four instances relied upon qualify. Confirmatory evidence lies on a continuum from peripheral confirmation right up to direct confirmation of the core allegations. In this case, the bruising and the video are the most powerful instances of confirmation and bolster the core of the allegations.
[62] The W.D. formulation is for the purpose of protecting against the alarmingly frequent judicial error of deciding a criminal case premised on whether the Crown or the defence position is preferred. The notorious proliferation of this error in judgments and jury charges both before and after the W.D. decision demonstrates how seductive this binary approach is even for those trained and experienced in the law. Preference is a standard that lowers the burden on the Crown, imposes a burden on the defence, and in effect transforms a criminal trial into a civil trial.
[63] The “third alternative” is the crucial one: being in a state of reasonable doubt: R. v. Nimchuk (1977), 33 C.C.C. (2d) 209; 1977 CarswellOnt 980 (Ont.C.A.) at para. 7 per Martin J.A. I do not intend to recite the W.D. mantra or to follow the order of its three steps. Appellate courts have emphasized over and over again that neither are necessary, as long as the principle underlying W.D. is respected.
[64] In that regard, taking Ms. H’s evidence together with the four supporting independent pieces of evidence, I believe her. I do not believe Mr. G. with respect to the five counts nor does his evidence, in the context of all of the evidence, leave me in reasonable doubt. I reject his evidence. I also reject the argument that the tank top evidence ought to play any significant part in evaluating the evidence in this case. It, like the potential motive to fabricate, is overborne by the force of the confirmatory evidence. Not only do I believe Ms. H. but her evidence, supported by the other evidence, convinces me to the high degree of certainty of beyond a reasonable doubt that Mr. G. is guilty of the charges against him. Based on Ms. H’s evidence bolstered by the confirmatory evidence, I am “sure” of his guilt: R. v. Lifchus, [1997] 3 S.C.R. 320.
[65] In conclusion, dealing with the counts on the indictment, on count 5 charged as assault causing bodily harm, the biting on the thigh August 17, 2017, I am convinced beyond a reasonable doubt that this happened as Ms. H. said it did. A bruise of this kind taking two to three weeks to heal and being sore the entire time constitutes bodily harm: R. v. Moquin, 2010 MBCA 22 at paras. 22-28.
[66] Counts 1 to 4 charge offences taking place on September 23 to September 24, 2017. Count 1 is assault, count 2 is assault with a weapon (the phone), count 3 is forcible confinement and count 4 is sexual assault. Based on Mr. G.’s evidence, the defence raised to the assaults is a combination of they did not happen and self-defence under Section 34 of the Criminal Code. As previously stated, I find beyond a reasonable doubt that they happened. I also reject self-defence as the Crown has negated beyond a reasonable doubt both under section 34(1)(a) of the Code that Mr. G. believed that force was being used or threatened against him and under 34(1)(b) that his use of force against Ms. H. was for the purpose of self-defence: R. v. Khill, 2021 SCC 37 at paras. 51-61. I am convinced beyond a reasonable doubt that the assaults in this case had nothing to do with self-defence.
[67] I find beyond a reasonable doubt that the assaults testified to by Ms. H. and the assault with the phone as a weapon occurred and without any justification or excuse. The sexual acts committed were without consent and therefore constitute sexual assault. Findings of guilt will therefore be entered on those counts, counts 1, 2 and 4.
[68] With respect to the forcible confinement in count 3, a finding of guilt will also be made. Ms. H., from the beginning of the assaults against her was on September 23-24, 2017 prevented from leaving for many hours. When she escaped after returning in Mr. G’s car, as shown in the video, she was captured by him and forcibly returned. The elements of forcible confinement have been proved to the criminal standard: R. v. Pritchard, 2008 SCC 59 at para. 24; R. v. Rocheleau, 2013 ONCA 679 at para. 29. There will be a finding of guilt on count 3.
[69] In conclusion, for these reasons, Mr. G. is found guilty of all five counts against him in the indictment.
D.E Harris J.
Released: March 1, 2023
Footnotes
[1] “Trial judges faced with allegations of sexual assault may find that they are required to make a decision on the basis of whether they believe the plaintiff or the defendant and as difficult as that may be, they are required to assess the evidence and make their determination without imposing a legal requirement for corroboration.” (Emphasis added)
[2] It has now been established beyond question that Paul Morin was wrongfully convicted of murder. There is no doubt whatsoever that he is an innocent man. Another man committed the murder. In the judgment referred to here, the Supreme Court confirmed the Court of Appeal’s order for a new trial. It was at this new trial that Mr. Morin was wrongfully convicted. Despite the grievous and tragic miscarriage of justice that occurred in the course of Mr. Morin’s case, Justice Sopinka’s reasoning on the burden of proof has stood the test of time and remains the leading authority with respect to the rejection of a two-stage fact-finding process.