Supreme Court of Nova Scotia
Citation: R. v. C.B.K., 2014 NSSC 458
Date: 2014-10-31
Docket: Syd No. 426661
Registry: Sydney
Between:
Her Majesty the Queen
v.
C. B. K.
Restriction on Publication: 486.4 CCC
Editorial Notice: Identifying information has been removed from this electronic version of the judgment.
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Judge: |
The Honourable Justice Robin C. Gogan |
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Heard: |
October 21, 22, 23, 2014, in Sydney, Nova Scotia |
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Oral Decision: |
October 31, 2014 |
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Written Release of Oral Decision:
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March 5, 2015 |
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Counsel: |
Mark Gouthro, for the Crown Darlene MacRury, for the Defendant |
By the Court (Orally):
Introduction
[1] This decision will address whether the Crown has proved beyond a reasonable doubt that the accused, C. B. K., is guilty of the offences charged in an Indictment dated June 10, 2014. The accused stands charged that he:
[2] For the most part, the outcome of this matter depends upon my findings as to what happened in the bedroom of the complainant’s home between 9:30 pm on January 22, 2014 and approximately 6:30 am the following morning. There is no issue as to the identity of the accused or the jurisdiction of the Court. The sole question is whether the elements of the offences charged have been proven beyond a reasonable doubt.
[3] At the trial of this matter, I heard from both the complainant and the accused along with a number of other witnesses offered by both Crown and Defence. As directed by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 SCR 742 such cases are not credibility contests. I am not choosing whether I believe the Crown evidence or the defence evidence. Rather, I must examine the totality of the evidence and decide whether the Crown has discharged its burden or whether I am left with a reasonable doubt as to some or all elements of the offences charged.
[4] This matter was heard on October 21, 22 and 23, 2014. During the course of the Trial, the Crown confirmed that it would offer no evidence on Counts 7, 10 and 11. Not guilty verdicts were entered with respect to those counts. The Crown further advised at the commencement of Trial that it would be seeking to amend the Indictment on the remaining Counts pursuant to section 601 of the Criminal Code to conform with the anticipated evidence that the events as charged took place at or near Dominion, Nova Scotia. At the conclusion of the Crown evidence, it moved for the amendments earlier requested. The Defence consented and the Indictment was amended accordingly.
[5] After both Crown and Defence had closed cases, the Crown moved for a further amendment to the Indictment. This time, the Crown sought an amendment to Count 9 by changing the subsection referred to in the Count. In response to the defence closing submissions, the Crown further requested that reference to the words “by threatening” be removed from the Count. These amendments were opposed. More will be said about this motion below.
Issues
[6] There exists a preliminary issue as to whether Count 9 of the Indictment should be amended.
[7] However, the main issue before me is whether the Crown has proved the elements of the various offences beyond a reasonable doubt. The accused is not required to prove anything in relation to the offences before the court. He is entitled to the presumption of innocence. The presumption is only displaced when the Crown has proved its case to the required standard.
[8] In R. v. Lifchus (1997), 118 C.C.C.(3d) 1 (S.C.C.), Justice Cory articulated these important and fundamental principles as follows at para 39:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
What does the expression “beyond a reasonable doubt” mean?
The term “beyond a reasonable doubt” has been used for a very long time and is part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe that the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
[9] In R v. Starr, (2000), 147 C.C.C. (3d) 449, Justice Iacobucci provided additional instruction at para 242:
In my view, an effective way to define the reasonable doubt standard for the jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury as set out in Lifchus as to the meaning and the appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle, J.A. in the court below, when he said, at p. 177:
“If standards of proof were marked on a measure, proof “beyond a reasonable doubt” would lie much closer to absolute certainty than to a balance of probabilities. Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words that he or she uses to convey this idea are of no significance, but the idea itself must be conveyed.”
[10] I note at this juncture that the doctrine of reasonable doubt applies to the issue of credibility. In this respect, I am instructed by the decision of the Supreme Court of Canada in R. v. W.(D.), supra. In that seminal case, Justice Cory considered the appropriate instruction in the case where an accused testified and he said:
A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[11] Justice Cory’s words are instructive and I am directed by them in the present case. These words remind the Court that the presumption of innocence and the burden of proof applies to issues of credibility particularly where the case turns on this critical issue.
Position of the Parties
The Crown
[12] The Crown submits that it has proven beyond a reasonable doubt that the events, as alleged, took place. It is the submission of the Crown that the evidence offered by the complainant was open, honest and spontaneous. The Crown notes that the complainant freely admitted to not recalling certain things. In assessing her evidence, it was submitted that the Court must consider the quality of her recollection as being consistent with her involvement in a traumatic event.
The Defence
[13] The defence urges me to consider the totality of the circumstances. They argue that the defence evidence, including the defendant’s testimony, is the basis for reasonable doubt.
[14] The accused admitted to certain things. He admitted that he slapped the complainant with both hands and punched her once with a closed fist. He admits that his actions caused her injuries. He admits that he made threats to her property and other threats to her. He admits that they had sex during the time in question.
[15] The accused denied other things. He says that the complainant consented to sex. He denies that he forcibly confined the complainant. He contests the extent of the beating he gave the complainant. He denies that he took her money and says that she willingly gave it to him. He says that the complainant wanted him to arrange for a polygraph test to prove her loyalty to him while he was in jail. He denies the specific threats that the complainant said he made.
[16] The accused says that he is not guilty of sexual assault, forcible confinement and theft. He says that he assaulted the complainant but that he did not cause bodily harm. Although he assaulted the complainant before they had sex, enough time passed, and implicitly I would say, circumstances changed to the point, that there is no basis to say that the complainant’s consent was vitiated.
[17] Finally, the accused denies the use of threats to obstruct justice and says that it is too late now to amend the indictment to otherwise conform to the evidence.
Analysis
The Preliminary Issue
[18] I turn first to the preliminary issue. This relates to the outstanding motion of the Crown to amend Count 9 of the Indictment. This amendment was sought during the Crown’s closing submissions.
[19] In relation to this motion, the Crown urges consideration of a number of points. First, they argue that I continue to have jurisdiction to amend the Count even at this late stage in the proceedings. Second, they submit that it is appropriate to exercise this jurisdiction in order to ensure that the accused does not escape criminal liability based upon a “technicality”. They say this because the accused, in his evidence, admitted to facts which could support a finding that he obstructed justice. However, there was no basis in evidence for a finding that the obstruction occurred “by threatening” the complainant.
[20] The accused contests the amendment. He says it comes too late. It raises prejudice that cannot now be cured.
[21] The jurisdiction to amend the Indictment to conform to the evidence is found in s. 601 of the Criminal Code. The factors which the Court must consider are contained in s. 601(4). There was no preliminary inquiry in this case, but the remaining factors remain to be considered. Having reviewed these, I am of the view that this motion came too late. Given the timing, I am persuaded that the accused has been misled and prejudiced in his defence and that this cannot be cured at this stage in the proceeding. In my view, injustice would result by the amendment at this stage.
[22] Accordingly, I dismiss the motion. It is my further view that there is no evidence that the accused obstructed justice as charged in Count 9. The accused is therefore found not guilty in relation to this charge.
[23] What remains is a determination on Counts 1,2,3,4,5,6 and 8 of the Indictment. Before discussing the counts specifically, I will review the evidence presented at Trial.
Assessment of the Evidence
(a) The Assessment Criteria Generally
[24] Before turning to the evidence specifically, I note that outcome of this case is dependent upon my assessment of the evidence offered by the witnesses. As in most cases, this assessment requires an analysis of the credibility and reliability of the evidence. This scrutiny applies to all of the evidence offered.
[25] Credibility has to do with a witness’s veracity. Reliability deals with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, a credible witness can be honestly mistaken (Justice Michelle Fuerst, Mona Duckett, Q.C. and Judge Frank Hoskins, The Trial of Sexual Offence Cases (Toronto: Carswell, 2010) 58, R. v. C.(H.), [2009] O.J. No. 214(Ont. C.A.) and R. v. Morrissey (1995), 1995 CarswellOnt 18 (Ont. C.A.).
[26] Justice P. Rosinski in R. v. C.R.H., 2012 NSSC 101 commented on the relationship between credibility and reliability at para 35:
[35]…a witness’s credibility is a mixture of their reliability (are they now recalling matters they had a proper opportunity to observe and commit to memory in the past?) and impartiality or honesty (are they disinterested in the outcome of the case and do not favour any party over another?).
[27] At page 30-2 of the text McWilliams, Canadian Criminal Evidence (Toronto: Canada Law Book, 2013), the authors express the relationship this way:
What do we mean by credibility? In order to answer this question, it is necessary to separate the truthfulness of the witness….from the factual accuracy of his or her evidence. With respect to the credit prong of credibility, we ask whether the witness is worthy of belief? In other words, are we confident that the witness is trying to be truthful and not deceiving us. Having satisfied ourselves of this, we move on to the second inquiry. Is the factual content of the witness’s evidence trustworthy or reliable? For example, are we confident that the witness has accurately recalled or observed whatever he or she is testifying about. Once we are satisfied that the witness is trying to be truthful and that his or her account is reliable, we can safely conclude that the evidence is credible.
[28] While it is true that no formal rules for the assessment of credibility can be enunciated, a general framework often cited is found in the reasons of Justice Mossip in R. v. Filion [2003] O.J. No 3419 (S.C.J.) which provides the following questions:
1. Does the witness seem honest? Is there any particular reason why the witness should not be telling the truth or that his/her evidence would not be reliable?
2. Does the witness have any interest in the outcome of the case, or any reason to give evidence that is more favorable to one side than to the other?
3. Does the witness seem to have a good memory? Does any inability or difficulty that the witness has in remembering events seem genuine, or does it seem made up as an excuse to avoid answering questions?
4. Does the witness’s testimony seem reasonable and consistent as he/she gives it?...
5. Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because he or she failed to mention something? Is there any explanation for it? Does it make sense?
6. The manner in which a witness testifies may be a factor, and it may not, depending on other variables with respect to a particular witness.
[29] I have further reviewed and considered the credibility assessments of our court in R. v. C.R.H., 2012 NSSC 101, R. v. R.R.D.G., 2014 NSSC 78 as well as that of Judge Tufts in R. v. Keyes, 2013 NSPC 25. In the end, I refer to and adopt the reasoning of Saunders J.A. of our Court of Appeal in R. v. S. (D.D.) at para 77:
It would be wise to consider what has been said about the trier’s place and responsibility in the search for truth. Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together by seasoned judicial stirring will yield proof of veracity. Human nature, common sense and life’s experiences are indispensable when assessing creditworthiness, but they cannot be the only guide posts. Demeanor too can be a factor taken into account by the trier of fact when testing the evidence, but standing alone it is hardly determinative. Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof. …
[30] Not surprisingly, cases of this kind are difficult. The critical facts happened in the presence of the parties and no one else. And one can never lose sight of the burden of proof. As will be discussed below, some factual findings I make are in keeping with the admissions of the accused and some are not. Many findings turn on my assessment of the credibility of the witness on certain points and in other cases my assessment of reliability is more important.
[31] I note at this point that subject to my assessment, I can accept all of the complainant’s evidence, some of it or none of it.
[32] The accused and the complainant had known each other for somewhere between 5 and 6 years. They had initially been friends and for the 2 years preceding the events in question, they had been more than friends. They had an intimate relationship with an active sex life. There was no evidence to suggest a history of violence in the relationship. However there was evidence that the accused suspected that the complainant cheated on him while he was in jail. This was denied by the complainant. In the time leading up to the events now before the Court, the question of the complainant’s fidelity was the subject of some discord between the parties.
[33] The parties agreed that they had not lived together before the accused was released from custody on or about December 20, 2013. Upon his release, the accused began to live with the complainant in her trailer which was located at […], […], Nova Scotia. The accused had his own home located at […] in […], Nova Scotia. While the accused was in custody prior to December 20, 2013, he had given permission to the complainant to rent out his home, collect the rent and pay the bills.
[34] The parties continued to reside together for a period of weeks. At some point in the middle of January, 2014, the accused moved out of the home. The exact nature of this separation was the subject of some dispute. It was undisputed that following the separation the parties remained in contact and that they spent a night together at the place where the accused was then residing.
[35] On January 22, 2014, it was the accused’s testimony that he was told by a friend that the complainant had been cheating on him with her former boyfriend. He texted the complainant and said he wanted to come over. The complainant said he could come over and agreed to pay for a cab. There weather was stormy that day and the roads were covered in snow. The cab could not get any further than a local Tim Horton’s store. The accused was dropped there and walked the rest of the way to the complainant’s home.
[36] The parties agree that the accused arrived at the complainant’s home at about 9:30pm on the evening of January 22, 2014. The events following his arrival are not agreed.
[37] The complainant testified that the accused came in the door, grabbed her and put her in the bedroom of the trailer. He asked her to see her phone and began hitting her. She gave him her phone. She did not recall exactly how this happened. He looked at the phone, got angry and kept hitting her. It was her testimony that the hitting went on, in her words, “for hours”. She was scared that she would get a concussion and go into a coma and she asked him to stop hitting her on the head. The complainant testified that she tried to protect her head from him and covered her head with her arms. The accused then hit her in the ribs and arms. She called these “body shots”.
[38] In the midst of the assault, he asked her for the money for a lie detector test and she gave him $420.00. This was money that the accused knew that the complainant had received for Christmas. She said that she gave him the money because “she thought it would stop the beating”.
[39] The complainant testified that she tried to get the accused to calm down. She said that she told him that she loved him and that they lay on the bed and “cuddled” and, in the complainant’s words, “made out” in an effort to get him to calm down. This did work for some period of time and then he hit her again.
[40] At one point in this sequence of events, the complainant and accused were on the bed together. They were not talking. He struck her. He started to remove her pants and underwear. She testified that they had sex and that “it just happened”. He did not strike her during sex but struck her afterwards. She said that she slept for about an hour after having sex and woke up with him hitting her again. She could not say how many times she was hit that night. She testified that she let the sex happen because she thought he would stop hitting her.
[41] At some point during the night, the complainant says that the accused made a number of statements. The first was “you are lucky that I came to talk to you because my plan was just to go under the trailer and blow it up”. The second was “there are 2 kinds of people in the world, killers and fighters and I am not a fighter”. Finally, the complainant recounted that the accused said she “couldn’t leave until the black eyes were gone.” She recalled that he said this latter statement 2-3 times. She said that she was afraid for her life.
[42] The complainant woke up early in the morning of January 23, 2014. She thought that it was sometime between 5:30 and 6:30 in the morning. Around 7am, the accused got up from bed and went to the bathroom. The complainant said that she followed and asked to watch him. He slammed the door in her face and she ran outside. The exit from the trailer was adjacent to her bedroom and across from the door to the bathroom. She was in her pyjamas. She put on his shoes. She ran to a neighbor’s house. She did not take time to find her own shoes, to put on a jacket or find her telephone. She says that she was screaming as she ran toward her friend’s house down the street.
[43] J.M. was outside shovelling snow when the complainant came running over. He took the complainant inside his home. S.M. testified that her husband J. brought the complainant inside. She was distraught and gasping for air. She had 2 black eyes and a fat lip. She had no jacket or socks on and the shoes she had on were too big. S. M. described the complainant as “a mess”.
[44] The complainant explained to the M.’s that she had come from her home 2 trailers away. Despite being neighbors, the M. did not know the complainant and did not recognize her. She identified herself. They tried to calm her down. It was hard to understand her. They got her some clothes and some tea. The police and ambulance were called. They arrived shortly thereafter. The complainant left the M.’s home in the ambulance.
[45] The complainant was taken to the […] hospital. Exhibits 2 and 3 show photos of the complainant while in the hospital and during the day following. The pictures show 2 black eyes with the left eye noticeably swollen, facial bruising including bruising behind the left ear, bruising to left arm and back, a swollen and bruised lower lip with a cut on the inside and left of the lower lip.
[46] While at the […] hospital, the complainant gave a statement to the police. She denied a sexual assault. She said in her evidence that she did not think then that it was a sexual assault because she let it happen. She testified that she allowed it to happen because she thought the accused would stop hitting her.
[47] She was released from the hospital on January 23, 2014. She was given ice and some medication before being released. The bruising and cuts took over a month to heal. She had trouble with her jaw for a few weeks after the assault. She did not have any follow up treatment.
[48] The accused was arrested at […] on January 23, 2014. The initial Information laid against the accused is dated January 23, 2014. When the accused was arrested he was in possession of cash totalling $439.30. The police found the cash in his pocket. The complainant later found her phone when she returned to her residence.
[49] There was evidence that the accused posted pictures of herself on Facebook at some point following the events in questions. There was evidence that she was a frequent user of her phone and social media. She communicated with various people through social media. She told her social media friends how she was injured.
[50] About a month after the assault, the complainant received a series of letters in her mail box addressed to C.T. from J.D.. The letters were dated February 2, 4 and 6. The complainant received them all at once but could not say exactly when they were received. She thought the letters were from the accused. In the letters, the accused asks the complainant to clear his name and gives her instructions on how to change her story about the events in question. I note at this point that the accused admitting writing these letters to the complainant.
[51] After receiving these letters, the complainant contacted the police. She told the police, presumably among other things, that she had sex with the accused on the night of the assault. The Information laid in relation to the sexual assault is dated February 18, 2014.
[52] The complainant acknowledged when cross-examined that the beating she received did not go on continuously throughout the period in question. She said that they had sex, they “cuddled”, she told the accused that she loved him, and that she spent time sleeping next to him on her bed. She said that she stayed as close as possible to him on the bed to prevent him from hitting her. After acknowledging that she had said that she loved him, she said “I was doing whatever I could to make him stop hitting”. She acknowledged that when she asked the accused to stop the sex, he stopped. This was after the accused had already “finished”, to use his words.
[53] The complainant acknowledged that she had smoked marijuana before the accused arrived. She further acknowledged that she takes medication in relation to a diagnosis of bi-polar disorder. She testified that her doctor is aware that she smokes marijuana on a daily basis. Therefore, she assumed that it was ok to take her prescription medication and smoke marijuana.
[54] The complainant was asked whether she knew J.F.. She said that F. was an acquaintance. When cross-examined, the complainant said she did not remember having conversations with F.. She denied making statements to the effect that if the accused signed his house over, or gave her money, it would be to his benefit.
[55] I find the evidence of the complainant generally credible. Broadly speaking, she gave her initial evidence in a straightforward way and in a manner that seemed appropriate to the nature of her testimony. Her direct evidence seemed to me to be without elaboration and her answers on cross-examination were focused, consistent and spontaneous. I note here that although I found her demeanor generally consistent with the nature of the evidence being given, I am mindful that demeanour alone cannot be determinative of credibility. Further scrutiny of the evidence is required.
[56] I am of the view that the complainant’s evidence was materially consistent across her direct and cross-examination. She readily admitted that she could not remember some things. It was my impression that her lack of recall or inability to provide specifics or a detailed chronology was consistent with the fact that she had been through a traumatic assault. In that sense, the lack of detail in her evidence raise more issues of reliability than credibility.
[57] For example, the complainant was asked on direct examination about the assault. She consistently gave evidence that the accused kept hitting her throughout the night. She could not or did not say how she was hit, or how many times she was hit and although she acknowledged that she was not hit continuously through the night, she could not provide any better account of the night than saying that the “hitting went on for hours”. The accused admitted on cross-examination that at one point he punched the complainant with a closed fist to the back of the head. The complainant did not recount this during her evidence. One would think that she should remember this kind of trauma and if she did that she would readily testify to it. She obviously did not recall this blow in isolation. All of this I find consistent with the complainant’s evidence of a traumatic and unpredictable night.
[58] I further find the complainant’s evidence consistent with the objective evidence available. The evidence of S.M. was important. She was independent of the parties. She recounted a distraught complainant arriving at her home early in the morning on the 23rd of January. She described her as a “mess”, gasping for air and hard to understand. This evidence is consistent with the account of the complainant that she left as soon as she could and that she had been subject to an extended period of trauma.
[59] The Court was also provided with photos of the accused. These photos documented the injuries and were consistent with the complainant’s evidence that she suffered many blows to the head during the course of the night. The photos also documented bruising which was consistent with the fact that the complainant had used her arms to protect her head and that she had suffered some blows to her upper torso and arms as a result.
[60] The accused himself testified that he observed the complainant at various points throughout the night to be “a mess” and “in shock”.
[61] The accused made attempts to impeach the evidence of the complainant. She was asked why she did not initially report the sexual assault to the police. I find the explanation given by the complainant to be a sound one. She believed that she had consented because she did not object and just let it happen.
[62] In assessing the evidence on this point, I am instructed by the reasons of Justice Major in R. v. DD, 2000 SCC 43. At paragraph 58-59, he noted “….the timing of disclosure, standing alone, signifies nothing”. And later at para 65:
A trial judge should recognize… that there is no inviolable rule on how people who are the victims of trauma like 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 the delay are many and at least include embarrassment, fear, guilt, or lack of understanding and knowledge. In assessing the credibility of the 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.
[63] Justice Major’s reasons relied, in part, upon those of Justice McLaughlin, as she then was, in R. v. R.W., [1992] 2 SCR 122 at para 63:
The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons [particularly children] react to acts of sexual abuse…
[64] In keeping with the direction of the Supreme Court of Canada, I draw no adverse inference as to the credibility of the complainant from the delay alone. That however, is not the end of the scrutiny required.
[65] The accused called 2 witnesses for the purpose of impeaching the credibility of the complainant. The first witness was J.F.. Ms. F. said that she had known the complainant since January of 2014. She had initial contact with the complainant through social media. Ms. F. testified that an “in person” conversation took place during which the complainant said, in reference to the accused, that she “would take him for everything he had”.
[66] The complainant said that she could not recall if this conversation took place.
[67] The second witness on this point was T.L.M.. M. was a sister in law of the accused and had known him for about 10 years. She initiated contact with the complainant on social media through Facebook. She then called her several times. This contact took place in or about March of 2014 while the accused was remanded to the correctional center.
[68] M. testified that she made the first call to the complainant to discuss the “rape charges”. The complainant told her that if the accused “signed over the home, all the charges would be dropped”. Later, several further calls were made by M., ostensibly to see how the complainant was doing. It was her evidence that the complainant said that the rape charge was not true – that it was mutual.”
[69] The complainant was called on rebuttal to respond to the M. evidence. She said she did not remember the conversation. She added that she only recalled meeting M. once but that they did have contact through Facebook.
[70] This evidence does raise concerns about the complainant’s credibility. Her evidence when asked about conversations with F. and M. had a different quality. Her demeanor changed, especially during her rebuttal evidence. She seemed reluctant, overly curt and evasive in her answers. In the end, I find that conversations took place with both F. and M. that the complainant did not want to acknowledge. She likely concluded that the statements she made during those conversations would not show her in the best light. I do note that the complainant stopped short of denying the conversations, she simply said that she could not remember. I do not believe this evidence.
[71] With respect to the conversation with F., I find that the complainant made the purported statements or statements to that effect. However, I am unable to conclude that this evidence supports the theory that the complainant had a motive to lie or was generally not credible. It is equally likely that the complainant made these statements out of anger.
[72] The purported statements to M. are more complex. I believe that contact was initiated by M. and that she and the complainant spoke about the allegations made against the accused. I am satisfied that the complainant said something that she did not wish to acknowledge. However, I am not confident that the statements that M. testified to are accurate. M. had an agenda in making these calls. I find it very difficult to believe that M. obtained these statements from the complainant and that she did not do anything with them all the while knowing that the accused was in jail on a rape charge which she had information was false.
[73] In the end, although I did not believe the complainant’s evidence on these conversations, I do not agree that this generally impeached the complainant or supported that her allegation of sexual assault was a lie.
[74] What remains is an examination of the testimony of the accused. The purpose of this review is to determine whether his evidence raises a reasonable doubt as to the credibility of the complainant.
[75] The accused testified that he arrived at the complainant’s home around 9:30 and just walked in. The complainant was in her bedroom and he went into the bedroom. She gave him the money for the taxi fare. He observed her phone on the nightstand beside a plate of joints. They began to talk. He took the phone and looked through the text messages and the photos. He saw photos of the complainant and her former boyfriend. One of the photos showed them in bed with no shirts on. As the accused looked at the complainant’s phone, he was standing in the bedroom doorway. She was on the bed.
[76] The accused said that seeing the pictures made him “lose his mind”. He “snapped”. He may have thrown the phone. He started slapping the complainant with his hands. He thought that this continued for 5-10 minutes. He acknowledged that he “slapped her a lot”. He could not recall how many times. He described himself by saying that his mind was not connected to his body. He said that he felt as if his mind could not stop his body. He said that he was full of hurt and anger and that it was “coming out”.
[77] After a period of time, the accused was able to gain control of himself. He went to the bathroom and came back. The complainant was on her bed. He acknowledged that “she was scared to death…she wouldn’t look at me…there were marks on her face”. He sat down on the bed and hugged her. He described them as both being in shock.
[78] The accused testified that he then does not remember what happened for a bit. He next recalls promising that he would not hit her anymore. After some time, he thought about 45 minutes, the accused admitted that he began thinking of the photos again and became angry. He hit the complainant again. This time he said that he only hit her once. He said he was then disgusted with himself and apologized again.
[79] It was the accused’s recollection that he and the complainant then talked for a bit. They talked about her behaviour while he had been in jail. He told her that if she was not cheating then she should take a polygraph test. He said that she agreed. She wanted to prove that she was loyal while he was in jail. She got the money for the test and put it in his hand. He put the money in his pocket.
[80] The accused said that he and the complainant remained on the bed for a while. He had no idea of time. It was his evidence during this period that the complainant was “a mess…she was in shock and she was scared”. After a while, they laid on the bed. They were cuddling. After testifying to this, the accused remarked again that the complainant was a still “a mess”. It was his recollection that they started kissing after this and that they then had sex. When he was finished he wanted to keep going. He thought that she was into it. She asked him to stop and he did.
[81] The accused then testified that the accused moved to the other side of the bed and they both laid there. He does not think either of them slept much. He was disgusted with himself. He observed her with her eyes open staring at the ceiling. He again observed that she was “a mess”. In his view, she was very emotional.
[82] As he lay in bed and thought about things once again, he started to get angry once again. He testified to thinking that he was just “fucking mad”. He got up and went to the bathroom. The complainant followed. She asked to watch him in the bathroom. He tells her no, called her a “fucking whore”, and slammed the bathroom door closed. He then heard the exterior door close. He assumed that the complainant had gone to her friend’s house up the road.
[83] About a half hour later, he heard the phone ringing. He found the complainant’s phone on the floor adjacent to her side of the bed. He answered. It was the complainant’s father. He listened to what her father had to say. He then looked out the window and saw the police car outside.
[84] The accused acknowledged making some threats through the night. He said he did not remember the threats he made but denied using the words described by the complainant. He specifically denied saying that he would blow her house up. It was his recollection that he said that he would burn it down. When asked about his other statements, he said that it was his idea that he would take her to a friend’s house and take care of her until the bruises went away.
[85] At one point in his evidence, the accused stated, “She was probably right about how many times I hit her”. He denied striking her during sex or after. He was not sure how long it was between the last time he hit her and when they had sex but “it was a good while…”. He said that they smoked a few joints before having sex. It was his observation that she was scared, that she did not feel safe and from his perspective he was doing what he could to “take the scaredness away” and make things “normal”.
[86] During cross-examination, the accused admitted that he slapped the complainant with the front and back of both hands to the point of hurting his hands. He further admitted that he punched her with a closed fist striking her in the back of the head. At the time of this punch, the complainant was laying in the fetal position on the bed facing away from the accused. He described her fear and said that she cried and asked him to stop hitting her. Even when “cuddling” her, he knew that she was still scared. He admitted that he inflicted the injuries shown in the photo exhibits.
[87] The accused also clarified that he was given money by the complainant for the polygraph test after he had assaulted her.
[88] When challenged about having sex with the complainant, the accused held firm and stated that “it was just like having sex every other time”. He also said that she did not try to leave and he did not tell her not to leave. It did not occur to him to leave. He was focused on making her no longer scared. It was his plan to leave in the morning when the roads cleared.
[89] I accept some of the evidence of the accused. I certainly accept his evidence to the extent that he makes admissions that are against his interest. However, it is my view that the admissions of the accused were largely in keeping with what objective or independent evidence would otherwise establish. For example, he readily admitted the assault on the complainant. The extent of the assault was documented in photos. He admitted writing letters that were in evidence. He admitted taking money from the complainant when he was found to have the money in his possession when he was arrested. What first appeared to be almost a confession like series of admissions, upon closer examination turned into a coy attempt to bolster his credibility.
[90] Having heard the totality of his evidence on both direct and cross-examination, it was my impression that although he admitted certain facts, his overall evidence was less than fulsome and that he minimized his acts. There 2 particular aspects of his evidence that can be used as examples.
[91] First, on direct examination, the accused made an admission that he hit the complainant repeatedly with an open hand. It was only when pressed on cross-examination that the accused admitted to hitting the complainant with the front and back of an open hand and, more significantly, that he punched her with a closed fist in the back of the head.
[92] Second, the accused testified on direct examination that his assaults on the complainant were confined to 2 discreet periods; once just after he arrived which lasted about 5-10 minutes and then he said he hit her one more time about 45 minutes later. However, when cross-examined, the accused acknowledged that he likely hit the complainant as many times as she said he did.
[93] I further find some aspects of the accused testimony to be, at best, disingenuous. At times he seemed very focused on telling the Court how badly he felt and how disgusted he was with himself. There was little insight into the severity of the assault he admittedly committed on someone he said he loved. He admitted to threatening her when he was angry and hitting her. He testified to wanting her not to be afraid of him and not wanting to leave until she was not scared anymore. He just wanted things to go back to normal. He thought that part of normalizing the relationship after an assault was hugging her, cuddling with her and having sex with her. This was his course of action in spite of his own repeated observation throughout the series of events that the complainant was scared, in shock and a mess.
[94] In the end, it is my view that the accused’s evidence minimized his actions on the night in question. I do not believe that his assault on the complainant was subject to discreet periods of assault. What I do believe is that the complainant was subject to a violent and volatile environment throughout the night in question. The accused would get mad, lose his temper and hit her. He hit her many times. He inflicted multiple significant injuries. He threatened her when he was hitting her. He would calm down and feel remorse then lose his temper again. In this environment, he took her money and he had sex with her. And it was his evidence that she could have left if she wanted to go.
Assault Counts
Assault (Count 3) and Assault Causing Bodily Harm (Count 2)
[95] In order to find the accused guilty of assault, the Crown must establish that he intentionally applied force to the complainant, that she did not consent and that he knew she did not consent. Having reviewed the evidence, I am satisfied that the offence of assault has been proven to the required standard. The accused admitted to the intentional application of force. He said that he snapped and started hitting her. She resisted by covering her head. She was upset, crying and she asked him to stop hitting her. In my view, there is no question that an assault was committed.
[96] The real question is whether the evidence supports a finding of simple or common assault or whether the injuries suffered by the complainant constitute bodily harm.
[97] The term “bodily harm” is defined in s. 2 of the Criminal Code. Section 2 provides that “bodily harm” is:
Any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.
[98] The complainant gave evidence as to her injuries. As she did so, she referenced the photos contained in exhibits 2 and 3. She had 2 black eyes with her left eye noticeably swollen on January 23, 2014. She had bruising on her face, neck, arms and back. She had a cut and swollen lip. It was the complainant’s evidence that the bruises took over a month to heal and that she had lingering problems with her jaw. She acknowledged not obtaining any follow up treatment after her discharge from the hospital.
[99] The accused urges me to characterize these injuries as minor or trifling. It was argued that bruising does not usually constitute bodily harm. No authorities were offered in support of this assertion. Even if I were to otherwise accept this proposition, I consider this to be a case involving multiple injuries that involved something more than a trifling or transient recovery time. I also consider that the injuries inflicted came from numerous and repeated slaps and blows to the face and head as well as “body shots”.
[100] In R. v. MacNeil, 2012 NSPC 106, Derrick, JPC considered the meaning of “bodily harm” at para. 16:
Bodily Harm or Wounding?
[16] Bodily harm itself lies along a continuum: there will be bodily harm that falls at the lower end and bodily harm that is more significant. To illustrate my point with examples, one punch assaults charged as assault causing bodily harm have included such injuries as a black eye, bruised and swollen face, cut on the nose, and a bruised shoulder (R. v. Sandoval, [1995] A.J. No. 1013 (P.C.)) and, more significant injuries that led to unconsciousness and hospitalization (R. v. Bennett, [2006] A.J. No. 540 (P.C.), paragraphs 2 and 27).
[101] After considering the foregoing authorities, I find that the injuries inflicted by the accused constitute bodily harm. I therefore find the accused guilty of Count 2. I enter a stay in relation to Count 3.
Sexual Assault (Count 1)
[102] Essentially, a sexual assault is an assault committed in circumstances of a sexual nature. The parties agree that they had sex during the time period in question. Therefore, the intent and the nature of the act are not contested. The issue with respect to this count is consent.
[103] The accused testified that the sex act was preceded by a period of “cuddling” on the complainant’s bed. During this preceding period, it was his testimony that the complainant was in shock and a mess from the assault. He was trying to do whatever was necessary for things to be “normal” again. The cuddling led to the sex. He described the sex “like every other time in their relationship”. She did not say no, at least not at the beginning, and she did not resist. When she did ask to stop, the accused stopped. The complainant says that she did “let it happen” but only so he would stop hitting her. Both the accused and the complainant agreed in evidence that there was no violence during sex.
[104] I was referred in argument to a number of cases which illustrate the complexities of the consent issue. In R v. Hutchison, 2004 SCC 19, the Supreme Court of Canada, in a majority decision, directed the analysis of consent as follows:
1 Control over the sexual activity one engages in lies at the core of human dignity and autonomy (R. v. Ewanchuk, [1999] 1 S.C.R. 330 (S.C.C.), at para. 28). This principle underlies the offences of assault and sexual assault. Sexual activity without consent is a crime under the Criminal Code, R.S.C. 1985, c. C-46.
…
4 The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b))…
[105] In the present case, I am satisfied that the complainant consented to the sexual activity. She therefore consented for the purpose of s. 273.1 (1). However, I find that her consent was vitiated at stage 2 of the analysis in keeping with s. 265(3)(b). In my view, she consented under fear of the application of force. She made a choice that she would rather have sex with the accused than be subjected to continued beating.
[106] Such choices were discussed by the Supreme Court of Canada in R. v. Ewanchuk, [1999] 1 S.C.R. 330 at paras 38 – 39:
38 In these instances the law is interested in a complainant’s reasons for choosing to participate in, or ostensibly consent to, the touching in question. In practice, this translates into an examination of the choice the complainant believed she faced. The court’s concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s. 265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force.
39 The question is not whether the complainant would have preferred not to engage in sexual activity, but whether she believed herself to have only 2 choices: to comply or be harmed. If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reas of sexual assault is established. The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in 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. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective.
[107] As I have already noted above, I find that the evidence as a whole, discloses that the complainant was subjected to a violent and volatile person in the accused during the night in question. By his own admission, he snapped soon after arriving and became violent. He threatened the complainant throughout the course of the night and subjected her to an unpredictable situation where the accused would calm down, be contrite and apologetic punctuated by periods of increasing anger and violence once again.
[108] In this environment, she testified that she tried to find ways to calm the accused and prevent further violence. She chose to have sex with the accused when he initiated the act. In these circumstances, she did not consent in law. If the accused somehow believed that he had the complainant’s consent, I find that this was completely disingenuous in the circumstances.
[109] Therefore, I find the accused guilty of the count of sexual assault.
Threats to Person and Property (Counts 5 and 6)
[110] Counts 5 and 6 allege that the accused made threats to the complainant during the night in question. Such acts, if proven, are contrary to sections 264.1 (1) (a) and (b). In order to establish these offences, the Crown must prove that the accused knowingly made a threat to damage property or cause death of bodily harm to the complainant.
[111] I have already noted the complainant’s evidence as to the statements made by the accused. The accused readily acknowledged that he made threats that night. He admitted threats to her property but said that he threated to burn the house down not blow it up. He denied the other specific threats that the complainant recalled but he could not remember the particulars of the threats or his exact words.
[112] I believe the complainant’s evidence as to the specific threats made. It is clear to me on the evidence that the threats were made knowingly and were intended to intimidate the complainant. The Crown has proved these counts beyond a reasonable doubt.
[113] I therefore find the accused guilty of Counts 5 and 6 of the Indictment.
Forcible Confinement – Count 4
[114] This section of the Criminal Code makes it an offence for one person to confine another person without lawful authority. In order to establish the offence the Crown must prove that the accused intentionally confined the complainant without lawful authority. In the present case, there is no question that the accused did not have lawful authority. The question is about whether intentional confinement has been proved. In order to establish intentional confinement, the Crown must prove that the accused intended to restrict the freedom of the accused to move about.
[115] The complainant did not ask to leave. She did not make any attempt to leave before the accused went to the washroom at about 6:30 in the morning on January 23, 2014. She testified that the accused said that she could not leave until her black eyes were gone.
[116] The complainant did say that in the period immediately following her departure, she was thinking of ways to leave. When the accused went to the washroom and closed the door, she quickly left. She did not take the time to put on socks or a jacket and she put on the accused’s shoes. Other witnesses testified that she was a “mess” at this point and difficult to understand.
[117] I note the evidence as to the layout of the trailer. The exit door was right across from the door to the washroom and just outside the bedroom door. The complainant testified that she was simply concerned with trying to find ways to get him to stop hitting her. She was afraid for her life. When the accused entered her trailer, she was in her bedroom. She did not leave the bedroom of her trailer throughout the whole period in question until she ran out screaming for help the next morning. The evidence establishes that the reason that she remained in the bedroom the whole time was that the accused was there with her either standing in the doorway, standing over her on the bed, assaulting her, sitting on the bed beside her, cuddling on the bed or sleeping in close proximity. Throughout the entire period, the parties were in close proximity.
[118] The accused says that the complainant never asked to leave and he denies making her stay. Although he denied restraining her and he denied any statements that she could not leave, he did testify at one point that it was his intention to care for her until her black eyes healed.
[119] More significantly, the accused admits to periods of violence. It goes without saying that during those periods, the complainant was not free to leave. His evidence does not raise a reasonable doubt in my mind that he subjected the complainant to a period of confinement.
[120] As I have already noted, I find that the actions of the accused during the night in question created a violent and volatile environment. During the period, the complainant was at the mercy of the accused until she took her first reasonable opportunity to exit the trailer. She was restrained by the environment of fear that the accused created over and above from periods of actual violence when I find that the accused did not intend for the complainant to be able to leave.
[121] Accordingly, I find him guilty of unlawful confinement as set out in Count 4.
Theft – Count 8
[122] The remaining charge against the accused is one of theft. The Crown alleges that the accused took $420.00 from the complainant. There is no question that the complainant gave the money to the accused when he asked for it. The question is whether this was a voluntary act given the surrounding circumstances and whether, considering all of the evidence, the offence is proved beyond a reasonable doubt.
[123] In assessing this count, I note the evidence of the complainant that she gave the money to the accused because she thought it would get him to stop hitting her. The accused says that he asked for the money to pay for the lie detector test which the complainant agreed to take “to prove her loyalty to him while he was in jail”.
[124] I note that the evidence of both the complainant and the accused supports that the fact that at least some period of assault had occurred before the money was handed over.
[125] I find that the complainant handed the amount of $420.00 over to the accused because she was afraid and because she believed that the assault may stop if she gave him the money. She did not agree to give him the money. To the extent that the accused says that the money was paid pursuant to an agreement to pay, I do not believe him. If I am wrong and he did have such a belief, I find that such a believe was not reasonable given my findings as to the preceding circumstances.
[126] Therefore, I find the accused guilty on Count 8.
Conclusion
[127] In summary then, I have found the accused guilty on Counts 1, 2, 4, 5, 6 and 8. I enter a stay on Count 3. I find the accused not guilty of Count 9. Not guilty verdicts have already been entered respecting Counts 7, 10 and 11.
Gogan, J.