Court File and Parties

COURT FILE NO.: CR-21-10000157 DATE: 20230116 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – OLEKSANDER MARTIUK

Counsel: Onelia Delgado, for the Crown Margaret Bojanowska and Alannah Marrazza-Radeschi, for Oleksander Martiuk

HEARD: October 17-20 & 24, November 28-30, December 1, 2022

Reasons for judgment

P.J. Monahan J.

[1] Oleksander Martiuk is charged with sexual assault causing bodily harm, contrary to s. 272 (1) (c) of the Criminal Code[^1], and choking while committing a sexual assault, contrary to s. 272 (1) (c.1) of the Criminal Code. These offenses are alleged to have occurred on the evening of May 25, 2019.

[2] It is agreed that, on that evening, the complainant invited Mr. Martiuk over to her apartment for a small party. After spending some time in the living room with the other guests, Mr. Martiuk and the complainant went into her bedroom. It is agreed that they began kissing each other and proceeded to have consensual vaginal intercourse.

[3] The complainant and Mr. Martiuk have contradictory accounts of what occurred next.

[4] The complainant says that after about ten minutes, Mr. Martiuk began to violently grab, slap and bite her breasts, arm, and leg, while continuing to engage in aggressive sexual intercourse. At one point, he choked her, preventing her from breathing and causing her to almost lose consciousness. Although the complainant pushed Mr. Martiuk back and expressed that he was hurting her, he did not stop and continued to grab, slap and bite her. This activity continued for a total of between 60 and 90 minutes, until Mr. Martiuk rolled off of the complainant and fell asleep.

[5] In contrast, Mr. Martiuk says that he and the complainant had consensual sex for between 90 minutes and 2 hours. He says that he was sucking very intensely on the complainant’s breasts throughout much of this time, but he denies grabbing or biting the complainant’s breasts or body or choking her. Mr. Martiuk maintains that the complainant never indicated that she wasn’t consenting to what he was doing, as she was actively participating, both verbally and physically, throughout the incident.

[6] For the reasons that follow, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Martiuk sexually assaulted the complainant, or that he choked her. I therefore find him not guilty of both counts in the indictment.

Crown Case

[7] There were two witnesses for the Crown: (i) the complainant; and (ii) Dr. Ruth Goldman, the complainant’s family doctor who saw her six days after the incident in question.

a. Complainant’s Evidence-in-Chief

[8] The complainant met Mr. Martiuk through a dating app in November 2018, while they were both students at what was then Ryerson University. Although they dated initially, after a short time they agreed to just be friends.

[9] On May 25, 2019, the complainant invited Mr. Martiuk to a small party with about ten guests at the apartment where she lived with two female roommates. Mr. Martiuk arrived at the party at about 9 p.m. Initially, the complainant and Mr. Martiuk sat in the living room with the other guests. Mr. Martiuk had brought a bottle of tequila with him and was drinking it, but the complainant did not notice how many drinks he consumed.

[10] At about 10:30 p.m., the complainant noticed that Mr. Martiuk’s mood appeared to dip and he seemed upset. She asked him if he was all right. He did not say anything but took her by the hand and led her into her bedroom. She thought he wanted to talk to her privately.

[11] Once they were in her bedroom, Mr. Martiuk started to kiss her and began undressing her aggressively, removing her top and pants. He also removed his own clothing and they lay down on the bed with Mr. Martiuk on top.

[12] The complainant did not want Mr. Martiuk to think she had romantic feelings for him if they had sex and so she stopped him and asked him if he really wanted to do this. He said he did and continued to kiss her. They proceeded to have sexual intercourse, which was initially consensual.

[13] After a while, the complainant heard her roommates and their friends leaving the apartment. All of a sudden, Mr. Martiuk became extremely aggressive and began to grab, punch, slap, and bite her breasts. He also bit her arm and her leg. She was shocked and tried to stop him by pushing against his arms and saying, “ow that hurts”. He did not stop and loudly said, “we’re going to fuck all night”. She put her hand over his mouth because she was concerned that her roommates and the other guests who were still in the living room might hear them. He laughed and continued biting, punching, and slapping her, as well as throwing her around the bed like she was a ragdoll.

[14] The complainant said that Mr. Martiuk’s bites caused her excruciating pain. He was using as much force as he could as he bit her breasts, arm, and leg, and she could feel both his upper and lower teeth.

[15] At one point, Mr. Martiuk put one of his hands around her throat and choked her. He was pushing down on her neck with his entire body weight and she could hardly breathe. She began seeing white spots and her vision was getting fuzzy to the point where she was almost passing out.

[16] The complainant said she did not know what to do and just went limp in hopes that he would get bored and stop the assault. Eventually, he stopped, rolled off of her, and quickly fell asleep.

[17] The complainant says she was shocked and afraid of Mr. Martiuk and could not fall asleep. After a while, she got out of bed and went out to the kitchen to get a glass of water. She noticed that the boyfriend of one of her roommates had not left with the others earlier in the evening. She and the boyfriend sat on the couch in the living room and talked for about ten minutes, but she did not mention the assault by Mr. Martiuk. Although the complainant went back to bed with Mr. Martiuk, she had a lot of trouble falling asleep and slept for no more than an hour that night.

[18] The next morning, she was feeling very sore and, when she lifted up her shirt, she saw large bruises on her breasts. She later noticed bruises on her arm, leg, chest, and stomach, as well as on her neck where she had been choked. None of these bruises had been there prior to her interaction with Mr. Martiuk.

[19] When Mr. Martiuk woke up that morning, he seemed in a rush to leave and was out of her apartment within 10 to 15 minutes. They had very little conversation before he left. The complainant had no issue with him being in a rush to leave because she wanted him out of the apartment.

[20] The complainant indicated that she had very severe bruises and sharp pains in her breasts for the next three to four weeks. She saw her family doctor, Dr. Ruth Goldman, about five days after the incident, but her doctor was very judgmental and dismissive. Dr. Goldman did not do anything to make sure there was no internal damage and just told her that she was fine.

[21] The complainant decided to go to the police at the end of September 2019. She provided a written statement on September 30, 2019, followed by a videotaped sworn statement on October 10, 2019. The complainant explained that the reason she went to the police was because Mr. Martiuk had choked her and beaten her up. She said that she would not have made a complaint if they had simply had sexual intercourse, since that had been consensual.

[22] The complainant acknowledged that, in her initial statements to the police, she did not mention Mr. Martiuk having choked her. She says this was something that had come to her later. When she went to the police, she was more focused on the bruising of her breasts because that was what was most traumatizing for her and caused her the most pain.

[23] The complainant took a number of photographs of the bruises on her body in the days immediately following the incident. These photographs, which were entered as exhibits at trial, showed large, dark-coloured bruises on the complainant’s breasts, as well as a large bruise on one arm and on one of her lower legs. There were also smaller bruises visible on her upper chest and stomach.

[24] The complainant had provided police with a number of text messages that she and Mr. Martiuk exchanged in the days immediately following the incident. Mr. Martiuk supplemented those messages with additional messages which they had exchanged during this period of time. Both sets of messages were accepted as exhibits at trial.

[25] The messages are extensive, and I will not attempt to summarize them here. In general terms, Mr. Martiuk and the complainant discuss the injuries that she sustained to her breasts as a result of the incident on May 25, 2019. The complainant sent Mr. Martiuk photographs showing extreme bruising on her breasts, complained that she was extremely sore, and said that she was going to look like a “domestic abuse victim for a while”. Mr. Martiuk responded, “it’s what I do. I beat women up. Just not in the traditional way, uterus punches.”

[26] In her texts, the complainant also says she is never sleeping with Mr. Martiuk again, that she looks like she got hit by a “fucking truck”, and asked, “did you think my tits were punching bags or something”. She also commented at one point, “it’s ok, I know you weren’t sober at all LOL. But like also not okay cuz I look like I’m dead. Just be more gentle haha trust me, girls like rough sex but not that rough.”

[27] At another point in the text messages Mr. Martiuk acknowledged that her injuries look bad and that he needs “to get someone who enjoys the roughness”. The complainant responded that she “enjoys roughness but that’s a whole new level”. Mr. Martiuk says, “sorry #notsorry. But a bit sorry cus you look rough.” The complainant says, “you should be v sorry bish!!!...BITCH I’M GOING TO MURDER YOU.” She also says that she is “a little fucked up by what [he] did to [her] body”.

[28] On May 29, 2019, the complainant blocked Mr. Martiuk on social media and no further texts were exchanged between them.

b. Complainant’s Cross-Examination

[29] The complainant was cross-examined extensively on a variety of matters, involving what counsel for Mr. Martiuk claimed were inconsistencies between her trial evidence as compared to her evidence at the preliminary inquiry in February 2021 and/or her statements to the police in September and October 2019. A number of the concerns identified by defence counsel involved matters which, in my view, were relatively minor or peripheral, including: whether Mr. Martiuk took the complainant by the hand when they went into her bedroom, or whether he merely motioned for her to follow him; whether Mr. Martiuk removed her clothing aggressively or whether she herself removed some of her own clothing; and whether or not she wore a bra in the days following the incident.

[30] However, a number of issues explored in cross-examination involved concerns relating more directly to the complainant’s evidence regarding the actual assault, and thus merit a more detailed discussion.

[31] In particular, the complainant was asked why she had not mentioned, in either of her statements to the police in 2019, that Mr. Martiuk had choked her. The complainant replied as follows:

No, it did not occur to me. I did not realize that, that would be a second sexual assault charge. I was charging him for the bruises. I thought it would be important to mention the choking once it came to me. Again, I did not leave it out maliciously because I did not want to, it is just that I was focusing on the evidence that I had.

[32] The complainant was also asked about her evidence at the preliminary inquiry in which she had explained that she had not mentioned the choking in her statements to the police because she was focusing on the most severe injuries, which were the bruises on her breasts. The complainant explained that the choking had been less severe because after Mr. Martiuk stopped choking her, her neck was a little sore, but for the most part she was fine, apart from a small bruise. In contrast, with the more severe bruises on other parts of her body, she had extreme pain and was not able to move afterwards.

[33] The complainant was also asked why, in her evidence in chief, she had said that Mr. Martiuk had choked her with just one hand, whereas at the preliminary inquiry she had said that he had used two hands to choke her. Further, at the preliminary inquiry, she had actually demonstrated how the choking had occurred, with Mr. Martiuk’s two hands being wrapped around her neck just below the jaw. The complainant said that she was literally on the verge of passing out and was focusing on the abuse that was happening to her, not the details, such as whether he had used one hand or two.

[34] The complainant was also asked about the fact that, at the preliminary inquiry, she had said that the entire incident had lasted for about 20 minutes, whereas in one of her text messages to Mr. Martiuk she had said that he had lasted for “5000 hours”. She indicated that she had not been looking at the clock and recording the time because she was lying there hoping it would end. She said that they had gone into her bedroom at about 10:30 p.m. and that the assault continued until about midnight. Her best estimate was that the incident lasted between 60 to 90 minutes.

[35] The complainant was asked about the fact that she had told the police that she bruises easily in her October 2019 statement. The complainant stated that she had been mistaken when she spoke to police, and that, in fact, she bruises like a normal person. The reason she told the police in October 2019 that she bruised easily was because of some medication that she was taking at the time, which she believed made it easier for her to bruise. However, she had subsequently done research and learned that this medication only causes bruising in very rare cases. The complainant also said that, even if she did bruise easily, the bruises she sustained from the assault by Mr. Martiuk were so serious that they could not be attributed to her bruising easily.

c. Evidence of Dr. Ruth Goldman

[36] Dr. Ruth Goldman was the complainant’s family physician at the time of this incident. She saw the complainant on May 31, 2019, but was unable to recall how, why, or when the appointment was made.

[37] Dr. Goldman recalled that, during the examination, the complainant was mildly distressed and appeared uncomfortable. Dr. Goldman examined the complainant’s chest, back, arm, and legs. She observed multiple bruises on the complainant’s breasts as well as on her left arm and left leg. Dr. Goldman did not observe any hematomas, or collection of blood, below the skin on her breasts. She also observed that the bruises were beginning to fade slightly.

[38] Dr. Goldman was shown some of the photographs that the complainant had taken of the bruises on her breasts. Dr. Goldman said she did not recall seeing bruises that intense in May 2019, although she cannot recall the exact appearance of the bruises.

[39] She ordered some blood tests and scheduled a follow-up appointment for the end of June. She advised the complainant to call her if anything changed prior to the follow-up appointment. When Dr. Goldman saw the complainant at the end of June, the bruising had cleared up.

[40] In cross-examination, Dr. Goldman indicated that the appointment on May 31, 2019, had lasted for about 25 minutes. Dr. Goldman said that she conducted a thorough exam of the complainant’s injuries and was not dismissive or judgmental of the complainant’s concerns. She confirmed that she did not observe any internal damage and that the blood tests that were performed came back normal.

Defence Case

[41] There were two defence witnesses: (i) Mr. Martiuk; and (ii) Dr. Charis Kepron, a forensic pathologist who was accepted as an expert in the assessment and interpretation of injuries, including bruising and bite marks.

a. Mr. Martiuk’s Evidence in Chief

[42] Mr. Martiuk is currently 27 years old and was 24 at the time of the incident with the complainant. He has no criminal record.

[43] Mr. Martiuk said that he and the complainant met online in 2018 through a dating app. They went on a few dates, but he decided that he did not want to pursue a romantic relationship and told the complainant that he just wanted to be friends. The complainant was initially unhappy about that, but she accepted his decision and they subsequently became fairly good friends. They hung out on the Ryerson campus together and also interacted extensively on social media. They would often poke fun at each other and make mutually self-deprecating jokes, but this was all in a spirit of joking and was part of their relationship.

[44] On May 25, 2019, the complainant invited Mr. Martiuk to a small party at her apartment. When Mr. Martiuk arrived around 8:30 p.m., there were seven or eight people there. They sat around in the living room playing cards and socializing, although Mr. Martiuk said he was mainly engaging with the complainant. He was drinking vodka mixed with Coca-Cola and estimated that he had four or five drinks while in the living room.

[45] Mr. Martiuk said he did not know the other guests very well and seeing them engaging with each other made him feel somewhat sad and lonely. He got up and went into the complainant’s bedroom. When the complainant followed him into the bedroom, he kissed her. She kissed him back but then paused and asked him if this is what he really wanted. He said he did, and they proceeded to kiss each other and get undressed.

[46] Once they had their clothes off, they engaged in consensual sexual intercourse. He was lying on top of her, kissing her mouth and neck and sucking on her breasts. He was making loud noises and saying, “we are going to fuck all night”. She put her hand over his mouth in an attempt to tell him to quiet down, and he licked her hand.

[47] They continued having intercourse for between 90 minutes and 2 hours, with the complainant indicating her approval by her active participation throughout. For much of this time, he was sucking very intensely on her breasts. However, Mr. Martiuk denied ever becoming aggressive, nor did he punch, slap, or bite her. Though he did put his hands on her breasts and squeeze them somewhat, he did not treat her breasts like stress balls. Mr. Martiuk also denied ever putting his hands around the complainant’s neck or choking her.

[48] Mr. Martiuk said that the complainant never tried to push him off of her, nor did she object to anything he was doing. In fact, at one point they reversed positions and she got on top of him. At no point did the complainant indicate that she was in pain or ask him to stop.

[49] Mr. Martiuk estimated that they continued having sex for between an hour and a half and two hours. By this time, he was feeling the effects of the alcohol, which caused him to hit his head on the headboard and fall off the bed. They stopped having sex at this point. After the complainant went to the kitchen and got a drink of water, she came back to bed, and he fell asleep.

[50] Mr. Martiuk said that, when they woke up the next morning, they briefly discussed what had happened the previous evening. The complainant mentioned that she was feeling sore and she showed him some bruises on her breasts. Mr. Martiuk noticed some slight discolouration, but nothing to the extent of what he observed in the photos that the complainant subsequently took. Mr. Martiuk said he had no idea that anything he had done would cause this kind of serious bruising. He said that he had not intended to injure the complainant, since he still regarded her as his friend, and he apologized. She said that it was okay but that he should not do it next time. The complainant also made fun of the fact that he had said they were going to “fuck all night”. After about 15 or 20 minutes, he left and went back to his own apartment to have a shower before going to work later that morning.

[51] Mr. Martiuk described the text messages that he and the complainant exchanged over the next few days as reflective of their tendency to joke and poke fun at each other. He explained that his comment that he “beat women up just not in the traditional way, uterus punches” was a sarcastic reference to his penis being so large that it hit her uterus. His comment that he needed to get someone who “enjoys roughness” referred to the fact that he continued having sex for a long period of time, liked to move fast, and also changed positions. Mr. Martiuk believed that, although the complainant had suffered extreme bruising on her breasts and upper body, they continued to be friends. He was surprised when she blocked him on social media on May 29, 2019.

b. Mr. Martiuk’s Cross-Examination

[52] Mr. Martiuk was asked how much alcohol he had consumed on the evening in question. He reiterated that he had four or five drinks, but it was possible that some of the other guests could have also taken drinks from the bottle he had brought with him. Mr. Martiuk said that although he enjoys marijuana edibles, he did not consume any marijuana that evening.

[53] Mr. Martiuk denied that he was intoxicated when he and the complainant went into the bedroom. He said that although he was feeling the effects of alcohol, he was not slurring his words or losing his balance and was able to maintain a conversation. Mr. Martiuk acknowledged that he was more intoxicated by the end of having sex with the complainant, and that this caused him to hit his head on the headboard and fall onto the floor. However, Mr. Martiuk denies being so intoxicated that he could not remember what took place that evening.

[54] Mr. Martiuk acknowledged that he did not tell the complainant that he wanted to have sex. However, she understood his intentions when he kissed her, and this was why she asked him if this was what he really wanted. When he replied that he did, she proceeded to actively participate in the sexual interaction.

[55] Mr. Martiuk said that they never discussed him biting or punching her breasts or choking her because he never did any of those things. Mr. Martiuk said that he put his hands on her breasts to feel resistance, but he did not squeeze her breasts as if they were stress balls.

[56] Mr. Martiuk acknowledged that he likes “rough sex”, but to him, this involves going fast, deep, and hard, as well as switching positions. He is also attracted to women’s breasts and sucked on the complainant’s breasts intensely for substantial periods of time that evening. He said this is consistent with his reference in their text messages, where he said, “I just become a vacuum cus I like tiddies”, and her comment saying, “your mouth is strong as fuck”. However, Mr. Martiuk maintained that he never bit, punched, or slapped her breasts, nor did he ever put his hands around her neck and attempt to choke her. Mr. Martiuk also reiterated that the complainant never indicated that she was in pain or tried to push him off of her. In fact, her moaning indicated to him that she was enjoying the sexual interaction.

[57] Mr. Martiuk reiterated that the text messages which they exchanged over the next few days reflected their relationship, in which they tended to make fun of each other and call each other names. The fact that they were calling each other names like “bitch”, “purple tits”, and “MOFO”, was consistent with their prior interactions over social media.

[58] Mr. Martiuk acknowledged that he was shocked by the extent of the bruising evident on the photos that the complainant sent him, and that was why he apologized. He repeated that he had never intended to cause any such injuries. When the complainant advised him that she was going to see a doctor, he encouraged her to do so.

c. Expert Evidence of Dr. Charis Kepron

[59] Mr. Martiuk tendered Dr. Charis Kepron, a forensic pathologist, as an expert in the assessment and interpretation of injuries, including bruising and bite marks. A voir dire was conducted to determine whether Dr. Kepron’s evidence satisfied the four criteria for admissibility of expert opinion evidence set out in R. v. Mohan.[^2]

[60] Dr. Kepron indicated that, in preparing her evidence, she had reviewed the complainant’s statement to the police, a transcript of the complainant’s testimony at the preliminary hearing, selected digital photographs of the complainant, and screenshots of various electronic messages that were exchanged between the complainant and Mr. Martiuk.

[61] The Crown did not take any issue with the necessity or relevance of Dr. Kepron’s evidence, nor was it suggested that there was any exclusionary rule prohibiting her testimony. The only issue raised by the Crown was whether Dr. Kepron was sufficiently qualified to provide the court with expert opinion evidence on the assessment and interpretation of bruises and bite marks.

[62] Dr. Kepron is an exceedingly well-qualified forensic pathologist. She is currently the Director of the Eastern Ontario Regional Forensic Pathology Unit and is also the National Chair of the Royal College of Physicians and Surgeons of Canada Subspecialty Committee for Forensic Pathology. She has received extensive training in the assessment and documentation of injuries, including distinguishing injury types as well as the mechanism and timing of injuries. As Director of the Eastern Ontario Regional Forensic Pathology Unit, she oversees the work of four other forensic pathologists. She has performed over 2500 autopsies herself, in the course of which she is commonly required to assess and evaluate external injuries, including bruises and bite marks. She has been accepted as an expert witness in over 40 cases in both the Ontario Superior Court of Justice as well as the Ontario Court of Justice.

[63] Dr. Kepron was asked whether she could properly assess the cause of the complainant’s injuries by viewing the photographs that the complainant had taken. Dr. Kepron indicated that there would be some limitations on her assessment, due to the fact that the photographs did not include a scale which would have enabled her to determine the precise size of the injuries. Nevertheless, Dr. Kepron said that it is not uncommon to assess injuries based on photographs and that she was able to offer an opinion on the source of the injuries suffered by the complainant based on the photograph she had reviewed.

[64] The Crown questioned Dr. Kepron extensively about the fact that she is not a forensic odontologist, a subspecialty within forensic pathology, and raised concerns over whether she is sufficiently qualified to identify human bite marks. Dr. Kepron explained that, as a regular part of her work, she is called upon to identify human bite marks, as distinct from other forms of injuries. She further explained that forensic odontologists are typically consulted where the issue is determining the identity of the individual who caused particular bite marks. No such issue of identification arises in this case: the issue is simply whether the complainant was bitten by Mr. Martiuk in the course of the incident in question. Dr. Kepron testified that she could have consulted a forensic odontologist to assist her in determining whether the complainant in this instance was actually bitten, but she saw no need to do so.

[65] A properly qualified expert need not have the highest degree of specialization possible in a particular field. Provided that the proposed expert has “special knowledge and experience going beyond that of the trier of fact” in the matter testified to, they may be permitted to provide expert evidence to the court.[^3]

[66] At the conclusion of the voir dire, I found that Dr. Kepron easily satisfied this test. I accepted her evidence that, as a regular part of her professional practice, she is called upon to determine whether an injury was caused by a human bite as opposed to some other trauma. She is otherwise extremely well-qualified to offer opinion evidence on the assessment and interpretation of injuries, including bruising. I therefore accepted her as qualified to provide expert opinion evidence in the area proposed by Mr. Martiuk.

[67] In her evidence in chief, Dr. Kepron stated that female breasts are composed entirely of soft tissue, with an outer layer of skin covering a variable amount of fatty tissue, fibrous tissue, and mammary gland tissue. She further indicated that human bite marks are typically round to oval-shaped in contour, and any associated bruising may show an area of clearing in the center, giving them an annular or ring-shaped appearance. There may also be two separate but adjacent areas of bruising corresponding to the arches in the upper and lower jaws. In addition, there would be small abrasions or puncture marks in the skin at the edges of the bite mark that correspond to the location of the biter’s teeth.

[68] Dr. Kepron was asked whether she observed any bite marks on the complainant’s breasts consistent with the description of how the alleged biting occurred in this case. Dr. Kepron noted that there are multiple areas of bruising on the complainant’s chest, involving both breasts as well as the upper chest. At least one of these bruises is oval-shaped and, on the basis of shape alone, could represent a human bite mark. However, there are no abrasions or puncture wounds at the edge of the bruise that could correspond to teeth, and the areas of central pallor typical of bite marks is not seen. The remaining bruises on the chest are irregular in shape and none of them show teeth marks or central pallor. Dr. Kepron noted that the complainant had described Mr. Martiuk as using full force when he bit her on the left breast. She indicated that she would expect to see some marks from teeth with such a forceful bite, but no such marks are evident in the photographs she reviewed.

[69] In her opinion, the bruises on the complainant’s breasts do not show the typical features of human bite marks. Dr. Kepron further indicated that it is possible that the injuries on the complainant’s breasts could have been caused by someone putting their mouth on the complainant’s breast and sucking with sufficient force to damage the blood vessels within the breast. The bruises she observed could have also been caused by impact forces, such as punching, or by the breast tissue being squeezed, pinched, or twisted.

[70] Dr. Kepron is also of the opinion that the bruises observed on the complainant’s arm and leg do not have the characteristic appearance of a human bite mark. She further indicated that the bruise on the complainant’s arm does not represent a single bite mark, but could have been caused by someone applying their mouth to the complainant’s arm and sucking hard enough to cause bleeding under the skin.

[71] In cross-examination, Dr. Kepron was asked whether the injuries she observed on the complainant’s breasts could have been caused by sucking alone, or whether some other form of trauma would necessarily have to have been involved. Dr. Kepron indicated that if intense suction is applied for a significant amount of time, it could cause intense bleeding. Both the duration as well as the intensity of the suction will affect the resulting injuries. Dr. Kepron stated that the injuries on the complainant’s breasts were caused by the application of significant force, but she is unable to identify the precise cause. However, in Dr. Kepron’s opinion, the injuries she observed on the complainant’s breasts are not consistent with what she would expect to see if the complainant had been bitten.

[72] Dr. Kepron was asked whether the resulting bruising would be affected if there were multiple sources of injury, such as a combination of punching, grabbing, and biting. She indicated that, even if injuries are caused by multiple forms of trauma that included biting, the resulting bruising would not mask the abrasions or lacerations that would be caused by biting. Dr. Kepron also indicated that, if the complainant had been bitten multiple times, she would have expected to see some teeth marks, but no such marks are evident in the photographs she reviewed.

[73] Dr. Kepron also testified that the large dark bruise on the underside of one of the complainant’s breasts could have been caused by suction or by some other crushing force, including punching or twisting. However, Dr. Kepron maintained that, if the complainant had been bitten in that location on her breast, she would still have expected to have observed some teeth marks, which do not appear to have been present.

[74] Dr. Kepron was further asked whether the appearance of these injuries would have been affected by the fact that some of the photographs were taken days after the incident in question. Dr. Kepron indicated that even if bruising has started to heal, this would not mask the presence of lacerations or abrasions caused by teeth. In fact, abrasions caused by biting tend to scab or dry out as they heal, which tends to make them more, rather than less, apparent. In addition, the disruptions to skin caused by teeth marks tend to stand out as an area of irregularity even in a photograph.

[75] In re-examination, Dr. Kepron confirmed that the injuries she observed on the complainant’s breasts could have been caused by suction alone. She also indicated that if the person who sustained the injury bruised easily, that would reduce the amount of force necessary to cause the injuries.

Applicable Legal Principles

a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[76] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and, along with it, the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.

[77] Thus, Mr. Martiuk is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

[78] A reasonable doubt is not an imaginary 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, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that Mr. Martiuk is probably or likely guilty. In that circumstance, I am required to give him the benefit of the doubt and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

[79] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I must consider all of the evidence and be sure that Mr. Martiuk committed offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.

b. Determining Reasonable Doubt in Accordance with W.(D.)

[80] Since Mr. Martiuk testified and denied the Crown’s allegations, it is necessary to determine whether the Crown has proven his guilt beyond a reasonable doubt in accordance with the framework set out by the Supreme Court of Canada in R. v. W.(D.).[^4] This means that if I believe Mr. Martiuk’s evidence to the effect that he did not sexually assault or choke the complainant, I must find him not guilty. Second, even if I do not believe Mr. Martiuk’s evidence, but it leaves me with a reasonable doubt as to whether or not he committed these offences, I must find him not guilty. Third, even if Mr. Martiuk’s evidence does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me beyond a reasonable doubt that he sexually assaulted and/or choked the complainant.

[81] In making these findings, I am obliged to assess Mr. Martiuk’s evidence in the context of the evidence as a whole, as opposed to considering his evidence in isolation.[^5] For that reason, a trial judge is entitled to reject an accused’s evidence based on a reasoned and considered acceptance of the truth of conflicting evidence. Such a finding is as much of an explanation as when a trial judge identifies credibility concerns in an accused’s testimony itself. Provided that the principle of reasonable doubt remains central, there is no error in a trial judge articulating that they reject the evidence of the accused based on credible and reliable evidence to the contrary.[^6]

c. Assessing Credibility

[82] Since the evidence of Mr. Martiuk and the complainant is diametrically opposed, in order to reach verdicts in this case, I must assess their credibility.

[83] There is no singularly correct or scientific method for assessing credibility. However, it is important to avoid credibility assessments based on what Paciocco J.A. has described as “impressions [that are] the product of stereotype, emotional evaluation, or ill-founded confidence in what is no more than guesswork.”[^7] In particular, it is now increasingly recognized by both trial and appellate judges that a witness’s demeanour when testifying has limited value in assessing credibility.[^8]

[84] As Watt J.A. noted in R. v. M. (A.),[^9] one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions, whether or not they were said under oath. Inconsistencies may emerge not just from a witness’ testimony at trial, but also from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions. That said, inconsistencies vary in their nature and importance. Some inconsistencies may not, on closer examination, materially impair a witness’s credibility or reliability. In other cases, however, an inconsistency on a matter central to events or circumstances that form the basis of a charge may call into serious question the credibility or reliability of a witness’s testimony.[^10]

d. Avoiding Myths and Stereotypes in Sexual Assault Cases

[85] As the Supreme Court of Canada noted in R. v. J.J., the criminal trial process can be “invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system.”[^11] Both Parliament and the courts have come to recognize that, in the past, victims of sexual offenses have often been subjected to unjustifiable scrutiny of the minutiae of their lives, thereby undermining the “dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.”[^12]

[86] Thus, it is now established that it is an error of law to assess a sexual assault complainant’s credibility based on assumptions about how a victim of sexual assault is expected or supposed to react to the assault. This includes the now discredited doctrine of “recent complaint” (abolished by s. 275 of the Criminal Code) or the belief that it is unsafe to find an accused in a sexual assault case guilty based on uncorroborated evidence (abolished by s. 274 of the Criminal Code). As the Supreme Court noted in R. v. D.D.,[^13] those who are victims of a trauma like a sexual assault may delay in disclosing the abuse, while others may never disclose it. Reasons for delay are many, and include embarrassment, fear, or guilt. For this reason, “a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.”[^14] Nor is it appropriate to assume that a victim of sexual assault will subsequently avoid their abuser. The mere absence of avoidant behavior by a complainant cannot form the basis of a credibility assessment leading to reasonable doubt.[^15]

e. The Limitation on Consent in Cases Involving Bodily Harm Has no Application in This Case

[87] I note that even if one party consents to an assault by another, such consent is vitiated in cases where force is intentionally applied in a manner which causes serious hurt or nontrivial bodily harm.[^16] At the same time, serious bodily harm must be both intended and caused by the accused for consent to be vitiated.[^17]

[88] The Crown takes the position that the complainant did not consent to being punched, bitten, or choked by Mr. Martiuk, and not that the complainant’s consent was vitiated by Mr. Martiuk’s intention to cause and in fact causing bodily harm. Moreover, Mr. Martiuk maintains that he never intended to cause bodily harm to the complainant, and there is no evidence to the contrary. Therefore, the limitation on consent in cases involving bodily harm has no application in this matter and is noted here for completeness only.

Analysis

[89] Considering first the evidence of Mr. Martiuk, I find that he testified in a straightforward manner and his evidence was largely internally consistent. In essence, Mr. Martiuk maintained that although he and the complainant engaged in rough sex during the incident in question, including his sucking intensely and for prolonged periods of time on her breasts, he never bit, punched, or unduly squeezed her breasts, nor did he ever choke her. Mr. Martiuk also maintained that the complainant consented to everything he was doing, as evidenced by her active participation and her verbal expressions of pleasure. Mr. Martiuk said that he was shocked when he saw the photographs of the bruising on the complainant’s breasts, since he never intended to injure her or cause her pain. He supported the complainant’s decision to be examined by a physician to ensure that she had not suffered any internal or lasting injuries.

[90] The Crown argues that the text messages exchanged between Mr. Martiuk and the complainant contradict his account. In particular, the Crown points to messages from the complainant in which she says, “I look like I got hit by a fucking truck”, and asks, “did you think my tits were punching bags or something”.

[91] Mr. Martiuk acknowledges that, in his response to these messages, he says that he is “really amazed and shocked by [him]self”, and that he apologizes, “cus it looks bad”. However, Mr. Martiuk argues, in general terms, that the text message exchange between the parties that continued for a number of days is generally consistent with his account of what happened on the evening in question. In his evidence, he explained that his statements in texts that he “lays good pipe and sex is intense” or that he “beats women up, just not in the traditional way, uterus punches”, are joking references to the intensity of the sexual intercourse or to his penis having hit her uterus.

[92] Mr. Martiuk also argued that certain of the complainant’s own texts are consistent with his account of their interaction. In particular, he points out that at one point the complainant refers to him having hit his head “while [they] were having sex”. Mr. Martiuk argues that describing them as “having sex” is consistent with his evidence that they engaged in consensual sexual intercourse, and inconsistent with the complainant’s evidence that she was beaten and thrown around the bed for an hour or more. Mr. Martiuk also points to another text in which the complainant says, “I can’t believe I let you in my body”, as indicated that the complainant consented to their having sex.

[93] Mr. Martiuk further argued that the expert evidence of Dr. Kepron corroborates his account and contradicts that of the complainant. Dr. Kepron testified that the injuries she observed in the photographs of the complainant’s breasts could have been caused by intense sucking over a prolonged period of time, just as Mr. Martiuk claimed in his evidence. Moreover, Dr. Kepron said that although she could not identify the specific cause of the injuries to the complainant’s breasts, the bruising was inconsistent with the complainant having been bitten. I note that the Crown did not call any expert evidence, and thus Dr. Kepron’s evidence on these matters is uncontradicted.

[94] Mr. Martiuk also points to certain inconsistencies between the different accounts that the complainant has provided of the incident. For example, although the complainant met with police on two separate occasions in the fall of 2019, on neither occasion did she mention having been choked. Mr. Martiuk argued that the complainant’s explanation for this omission, namely, that it did not come to mind at the time, is implausible, given the fact that she maintains that she was so severely choked that she was unable to breathe and almost lost consciousness. Mr. Martiuk also points out that, in her statement to police, the complainant said the incident had continued for 20 minutes, whereas at trial she changed her position and said it had continued for 60 to 90 minutes. The complainant had also told police that she bruised easily, whereas at trial she denied that this was the case.

[95] As I noted earlier, the Crown’s burden to prove guilt beyond a reasonable doubt is a high one. It is not sufficient for the Crown to prove that it is likely or probable that Mr. Martiuk assaulted the complainant.

[96] When I consider the evidence in its totality, I find that the Crown has failed to satisfy that burden. The complainant testified in a straightforward manner, and the photographs she took of her breasts are stark evidence that she suffered significant bruising and pain that continued for weeks after the incident. Nevertheless, Mr. Martiuk also testified in a straightforward manner, and his evidence is corroborated by the uncontradicted expert evidence of Dr. Kepron. I also accept that the inconsistencies in the complainant’s evidence pointed out by Mr. Martiuk involve matters that are central to the circumstances that form the basis of these charges, and are therefore properly taken into account in assessing the complainant’s credibility.

[97] Ultimately, I am unable to decide whom I believe. It necessarily follows that the Crown has failed to prove beyond a reasonable doubt that the injuries the complainant suffered were caused by a sexual assault, that Mr. Martiuk bit or punched the complainant, or that Mr. Martiuk choked the complainant in the course of a sexual assault.

Disposition

[98] I find Mr. Martiuk not guilty of both counts in the indictment.

P. J. Monahan J.

Released: January 16, 2023

[^1]: RSC 1985, c. C-46 (the "Criminal Code"). [^2]: 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. [^3]: R v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at p. 415. See generally, David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at pp. 215-16. [^4]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. [^5]: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at para. 5. [^6]: R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), at para. 53, leave to appeal dismissed, [2007] S.C.C.A. No. 69; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 51, 56, and 66. [^7]: David M. Paciocco, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (2017) 22 Can Crim L Rev 31, at p. 57. [^8]: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 27-28; R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. G. (G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 7-10; R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.), at p. 250, leave to appeal refused [1994] S.C.C.A. No. 290; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 173-174; and R. v. C. C., 2018 ONSC 1262, [2018] O.J. No. 1030, at paras. 61-62. [^9]: 2014 ONCA 769, 123 O.R. (3d) 536 (“M. (A.)”). [^10]: M. (A.), at paras. 12-14. [^11]: R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577 ("J.J."), at para. 1. [^12]: J.J., at para. 1. [^13]: 2000 SCC 43, [2000] 2 S.C.R. 275 (“D.D.”), at para. 65. [^14]: D.D., at para. 65. [^15]: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 58, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. [^16]: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714. [^17]: R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339.