R v Khaery, 2014 ABQB 676

Court of Queen ’ s Bench of Alberta Citation: R v Khaery, 2014 ABQB 676 Date: 20141107 Docket: 121306211Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Mohamed Khaery Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.G. Crighton

_______________________________________________________ I.

Introduction [ 1 ] The Accused is charged with committing the following offences that he, on or about Oct. 30, 2012 at or near Edmonton Alberta: a. committed a sexual assault on CS that caused bodily harm ( Criminal Code , RSC 1985, c C-46, s 272(1)(c)); b. unlawfully assaulted CS ( Criminal Code , s 266); c. did knowingly utter, convey or cause CS to receive a threat to cause death or bodily harm to CS ( Criminal Code , s 264.1(a)(A)) d. without lawful authority confined CS ( Criminal Code , s 279(2)); e. without lawful excuse breached a term of his recognizance that he keep the peace and be of good behaviour ( Criminal Code , s 145(3)); f. without lawful excuse breached a term of his recognizance to present himself at the door of his residence to his supervisor or to any peace officer who attends in order to verify compliance with this term ( Criminal Code , s 145(3)); and g. without lawful excuse breached a term of his recognizance that he refrain from the purchase, possession, or use or consumption of alcohol, other intoxicating substances, or any non-prescribed illegal drugs ( Criminal Code , s 145(3)).

II. Evidence [ 2 ] The Accused admits the continuity of the scene and of the exhibits. He further admits he was bound by the conditions of a recognizance that was in full force and effect at the time these charges arose. The Defence called no evidence in this trial. [ 3 ] The Complainant CS testified, as did an individual who was in the residence. In addition, the Crown called a number of witnesses who were involved in the Accused’s arrest and in the investigation that followed. A brief

summary of that evidence follows. A. The Complainant’s Evidence [ 4 ] Before summarizing the Complainant’s evidence, it is appropriate to make some observations about the difficulties that were encountered in completing her evidence and about her demeanor. [ 5 ] On the first day of the trial, the Complainant appeared fatigued and uncomfortable in the courtroom. She was at times very emotional; especially when she was asked to recount the sexual acts that she said occurred on October 30, 2012.

It was clear she did not want to talk about the incident at all, as she repeatedly expressed reservations about doing so. [ 6 ] The Accused required that an interpreter translate the evidence for him from English into Sudanese Arabic. That process exacerbated the Complainant’s anxiety as it required the Complainant to pause frequently as she gave her account of what happened. Her frustration with the necessary interruptions was palpable.

The Complainant finished giving her direct evidence near the end of the first day of trial and Defence counsel completed about 30 minutes of cross-examination before adjourning for the day. The Complainant did not return the next day and a warrant was issued. [ 7 ] CS returned on the third day of the trial to continue with her cross-examination. She expressed her frustration with Defence counsel requiring her to answer questions about things she had already testified about or did not recall.

She physically turned her body away from Defence counsel as she stood or sat in the witness stand. [ 8 ] The following day CS arrived late and was brought to court directly from the hospital. After some delay, she again took the stand. She was fatigued and highly emotional. After only two questions, she stated that she could not continue to answer questions because she was not mentally prepared and refused to continue. [ 9 ] After an adjournment to afford the Crown an opportunity to have the Complainant return to Court, the Complainant did return and she completed her cross-examination.

On her return, she appeared well rested and her affect was more animated. She abandoned her earlier comportment of turning her body away from Defence counsel during questioning and instead made eye contact with him. [ 10 ] She told Defence counsel she had not been high on drugs during her last appearance and she had not attended at the hospital as a result of an overdose. She acknowledged she had been drinking and that she had not had much rest. She further testified her mental state was not the best because of the situation with the Accused.

She had been at the hospital because she thought she was going to commit suicide.

[ 11 ] As her cross-examination continued for two more days, the Complainant once again began showing up for court late, appearing exhausted and occasionally unkempt when she arrived. Once again, she began turning away from Defence counsel as he was asking his questions and she exhibited increasing frustration over being asked the same questions more than once. At one point she referred to Defence counsel as stupid. [ 12 ] Further, the Complainant voiced her annoyance with Defence counsel when he repeatedly asked her about statements she had made to others after police arrived on October 30, 2012.

She consistently testified that she recalled the people, but not the detail about what was said except that she gave an audio video recorded statement at 6 pm that same day. In as much as these events happened nearly two years ago, her answer was believable and unsurprising. [ 13 ] Notwithstanding CS’s demonstrated reluctance to look at Defence counsel and to repeat her story for his benefit, I conclude the Complainant exhibited a genuine effort to tell Defence counsel what she recalled and what she did not recall.

In her cross- examination she readily admitted her relationship with the Accused had been tumultuous. She volunteered that many of her relationships had been like that back then. She acknowledged she broke the Accused’s laptop and his TV on an earlier occasion. She did not recall doing it, but testified that she had been shown what she had done in a blacked out drunken rage. She agreed she probably told the Accused she would not make any trouble if she was apologizing for breaking his things. I conclude from her evidence and from her demeanor that her inability to recall was genuine rather than contrived.

I further conclude that she in no way attempted to obfuscate or mislead by her inability to recall. [ 14 ] I turn now to the Complainant’s evidence about the evening of October 29, 2012 and the early morning of October 30, 2012. [ 15 ] The Complainant testified that she ran into the Accused earlier in the day on October 29, 2012. She agreed with Defence counsel that they were good friends, but she denied she had known him for any longer than nine months. CS testified she had not seen him for a while and they agreed to meet up after he finished work.

She gave him her telephone number and they met up close to his work place around 9:45 pm. [ 16 ] CS testified they took a cab to a liquor store where the Accused purchased a bottle of vodka. From there they went to his residence on the south side and he showed her around. She testified that nobody was home when they arrived although the Accused told her he had roommates. She thought they were from El Salvador.

The photographs taken by police of the residence later in the day on October 30, 2012 depict an El Salvador flag on the wall in the residence. [ 17 ] She testified that he went into the kitchen to cook something and she sat in the living room watching TV and talking and texting on her phone. She testified that they had discussed the option of her staying over and sleeping either in the bedroom or on the couch, wherever he was not intending to sleep, or he would give her money for a cab ride home. She further testified that at some point she had a shower and the Accused gave her some shorts and a T-shirt to wear.

He was going to wash her clothes so that she had clean clothes the next day. [ 18 ] CS testified that another man was sitting on the couch in the living room when she came out after having her shower. She had never met him before. The Court eventually learned that this man was one of the Accused’s roommates.

The Complainant testified that the man and the Accused were speaking in their language and she sat down on the loveseat where the Accused was sitting and started talking to the man about a show that was on TV. [ 19 ] The Complainant recalled that she and the Accused twice went outside to smoke a joint and that she and the Accused were drinking. She testified that at some point the Accused was grabbing her or hugging her. She did not feel unsafe at that point because he was that kind of person. Later he told her they were going to go to his room to sleep together, but not do anything.

CS testified that she became defensive. They had a brief argument in the living room. CS told Defence counsel that the Accused’s mood changed when she was speaking to his roommate and he appeared to become jealous. She testified that the Accused told her they were going to bed. She resisted. She testified that they were both intoxicated and while they were arguing he hit her with an open hand to the face. CS testified that shocked her because he had never hit her before.

She ran to the bathroom to get away from him. [ 20 ] The Complainant testified that she tried to close the bathroom door but the Accused pushed it open. She recalled she said something to the Accused that made him really mad and they scuffled in the bathroom. She testified that he was grabbing her and slapping her and that he physically threw her out of the bathroom, forced her to the floor and straddled her body. She testified that the roommate was still in the living room and that she asked the roommate to help her, but he did nothing.

The roommate then left the residence. [ 21 ] CS testified that she remained on the hallway floor for about 20 minutes after the roommate left. She testified that during that time, the Accused randomly slapped her with an open hand all over her face. He bit her in the area near her left elbow breaking the skin after she grabbed “his man parts” really hard. She testified that he was telling her she was always such a bitch to him and she had taken his cell phones and broke his laptop.

The Complainant acknowledged she had never told anyone before the first day of her trial that she had grabbed the Accused’s man parts really hard. [ 22 ] When CS was shown the photographs of her injuries the bite marks were on her right arm. The Complainant testified that it had been chaotic and the Accused may have bitten her on her right arm, but in any event, she recalled he bit her twice. [ 23 ] At some point CS recalled the roommate came back into the residence, but quickly left again without saying anything in either language.

She testified that while the Accused straddled her on the hallway floor, the Accused forced his penis into her mouth. She testified that he told her not to yell because nobody would hear her. He threatened to cut her body up in pieces and put her into bags like garbage. The Complainant testified that she was afraid because she knew the Accused was a butcher and because he would not care given that he had just physically assaulted her when he had never done so before.

She testified that she thought the Accused was going to kill her. [ 24 ] Defence counsel suggested to the Complainant that she was making up her evidence that the Accused had threatened her. CS denied doing so. She told counsel that she recalled vividly the things the Accused said to her and they stuck out in her mind.

[ 25 ] The Complainant testified that she eventually ended up in the bedroom after the Accused made her remove the clothing he had given her to wear. He directed her to crawl to the bedroom, which she did, leaving the clothing behind in the hallway. She told Defence counsel that she removed her clothes with her hands. She agreed the Accused was straddling her at the time and that her hands were down at her sides. [ 26 ] She testified there was no bed in the bedroom, only blankets on the floor.

She recalled there was a big mirror in the bedroom where she saw a picture of the Accused’s daughter and she tried to appeal to him to stop by talking about his daughter. She testified the Accused randomly hit her. She told him if he wanted sexual intercourse to just do it and she would not tell anyone because she wanted it to stop. She recalled he wanted oral sex again and testified that she believed if she got it out of the way it would stop. [ 27 ] The Complainant testified that he then wanted intercourse because she was not performing oral sex properly. She asked him to use a condom.

She said she knew he had one because she saw it beside the blankets on the floor. She testified, more than once, that she recalled the condom was green. She told Defence counsel she tried not to make the Accused angry and asked him if she could go. She testified he said “no, you can’t go” and she recalled the bedroom door was closed. He testified that they were in the bedroom for about 20 minutes during which the Accused forced his penis into her mouth and then forced his penis into her vagina. She told Defence counsel that the Accused never punched her, but rather he hit her with an open hand.

She acknowledged she may have told police he hit, punched and bit her when she was telling them what happened. [ 28 ] CS initially told Defence counsel she did not recall telling police or the sexual assault response team (SART) nurse that the Accused had attempted to penetrate her anus or that he penetrated her digitally. She later admitted she may have told the SART nurse the Accused penetrated her digitally, but denied he attempted to penetrate her anally or that she told anyone that he tried. She denied telling the SART nurse that some of her bruises were caused when she had another fight.

Defence counsel did not ask her about any conversations she may have had with Constable Sadoway regarding her injuries and their origin. [ 29 ] She also told Defence counsel she could not recall telling police that she had been able to escape the Accused’s grasp momentarily and run to the exit door before the Accused pulled her back and forced her once again to the hallway floor. [ 30 ] In her direct evidence the Complainant testified that the Accused had his penis in her vagina and was holding her arms over her head when she heard police yell into the home. [ 31 ] The Complainant denied having ever met the roommate before October 29, 2012 and she denied Defence counsel’s suggestion that she and the roommate orchestrated everything that happened because the roommate owed the Accused money and because she was mad at the Accused for refusing to give her money to buy drugs. [ 32 ] The Complainant also denied telling Constable McCarthy, at the Accused’s residence, that the Accused admitted he had, among other things, HIV and Hep C.

She told Defence counsel that an officer gave her that information and encouraged her to get tested. She testified that Detective McKean called later to tell her the Accused was not infected with those diseases. Defence counsel did not ask Constable McCarthy if the Complainant told her the Accused had admitted having those ailments. [ 33 ] Finally, the Complainant denied showing the Accused some bruises while they were in the cab and denied telling him they had been inflicted in a fight.

The Complainant was never asked if she had been in an earlier fight and it was never suggested to her that someone else had inflicted the bruises, the bites and the swelling to her face. B. The Roommate’s Evidence [ 34 ] The Accused’s roommate testified he moved into the residence just after the September 2012 long weekend. He had known the Accused before he moved in. They shared the residence with two other men.

He testified in his direct evidence that he was working in construction at the time and arrived home just before 3 am on October 30, 2012. [ 35 ] Defence counsel suggested to him that he was not working in construction at all and that in fact, he had a side business selling drugs. The roommate denied selling drugs, but acknowledged he had been laid off from his construction job. He indicated he had returned to construction work by the middle of November.

He explained that because he had not wanted to collect Employment Insurance, he was driving a truck to various locations inside and outside the Edmonton area, picking up charitable donations and dropping them off. He explained he did not work regular hours and, on that particular evening, he had visited with a friend before returning home. [ 36 ] In his direct evidence the roommate testified that the Accused was sitting with a girl when the roommate arrived home. The girl and the Accused were both drunk. Nobody else was home.

When Defence counsel suggested that he only saw the Accused drink something that appeared to be mixed with orange juice, the roommate said he saw both of them occasionally mix what they were drinking with something that looked like orange juice and occasionally drink right from the alcohol bottle. He testified there was a half empty bottle on the table when he came home and the Accused and the girl had spilled alcohol on the table. The roommate denied Defense counsel’s suggestion he had been drinking before or after he came home, and he denied he smoked any marijuana with the couple.

The roommate testified that he spoke to police that evening and they had directed him to go elsewhere that night. If he had been drinking he was confident the police would not have told him to drive. I note Defence counsel never asked any of the officers who spoke to the roommate that night any questions about his level of sobriety. [ 37 ] The roommate testified he had never met the girl before, but the Accused introduced them and they started talking.

He could not recall clearly what the girl was wearing, but he thought she had on a sweater, a T-shirt and dance pants. [ 38 ] He testified that the Accused asked him to go and buy him cigarettes and gave him money to buy them. When he returned with the cigarettes, the Accused and the girl went down to the Accused’s room and the girl came back out right away. [ 39 ] The roommate recalled everything started to happen around 4:00 a.m. He testified that the Accused was “serious to talk to her

in his room”, but she wanted to watch TV. He testified that the Accused was suddenly mad and he was yelling at her. He testified that the girl made excuses not to go with him to his room like using her phone and watching TV. She then said she was going to the bathroom and grabbed her cell phone at the same time and started using it as she went towards the bathroom. The Accused followed her and told her she was not going to close the door. The roommate testified that the girl tried to use her phone and close the door. The Accused forced the door open, took her phone and threw it on the ground.

He testified that the Accused removed the girl from the bathroom by force and at the same time became angrier and was yelling at her. [ 40 ] The roommate testified that the girl asked him to stop the Accused. The roommate said he tried to intervene before something happened. He tried talking to the Accused and he tried to cool him down. He testified that he told the Accused that he could go to jail for what he was doing and, as he grabbed one of the Accused’s hands in an effort to intervene, the Accused told the roommate that if he got involved he would beat him up.

The roommate explained that at that time the Accused was holding the girl up against the wall outside the bathroom. She was talking to the Accused and trying to get his hands away from her at the same time. The roommate told Defense counsel the Accused was scaring the girl. [ 41 ] He testified the Accused was yelling that they spent all night together and he bought her smokes and stuff and she cheated on him and then left at the end of the night. The girl was unable to get away.

The roommate testified that he did not want to fight and that the Accused was still busy with the girl and yelling at her, so he stepped outside of the residence for a minute because he could not make a quick decision to call police or stop the Accused. [ 42 ] He testified that as he was putting his shoes on, the Accused was forcing the girl to his room by grabbing onto her clothing and pushing her towards it. He told Defence counsel that he did not see the Accused hit the girl, throw her to the floor, straddle her or take out his penis. Neither did he see them take off their clothes.

When Defence counsel asked if he had seen the girl crawl to the bedroom, the roommate testified that he did not follow and see how she ended up in the bedroom. He told counsel that as he was leaving the residence, the Accused was holding the girl with both hands by her shoulders, she was making herself heavy, and he was forcing her in the direction of the bedroom.

He testified that as he left the residence, the girl asked him not to leave her and to either call police or stop the Accused. [ 43 ] The roommate testified that he returned to the residence two or three minutes later to see if he could do anything before calling police. He told Defence counsel he could not be certain about his time estimate, but he was certain it was not 25 minutes before he returned. [ 44 ] He testified that as he stood in the middle of the living room he could hear the girl yelling and begging the Accused to let her go.

He then walked part way down the hallway where he saw the door to the Accused’s bedroom was partially closed. He could not see inside. He told Defence counsel he felt something violent was going on and he went outside and called 911. It is admitted that the roommate made his 911 call at 4:47 a.m. The roommate testified the police arrived in minutes. [ 45 ] The roommate denied he owed the Accused money. He told Defence counsel that he and the Accused never discussed money.

He also denied that he and the girl had planned for her to have sex with the Accused so that she could cry rape after the roommate called police. C. Evidence of the First Responders [ 46 ] Officers Hapke, McCarthy, Armstrong and Reyes testified they were dispatched at 5:02 a.m. and all four arrived by 5:08 a.m.. Armstrong and Reyes arrived slightly behind Hapke and McCarthy. [ 47 ] The officers who attended agreed that Constable Hapke issued three police challenges in a loud voice that police were at the residence.

Constable Reyes testified he was not present when the doorbell was rung, but the others agreed the doorbell was rung and that Constable Hapke knocked twice before issuing police challenges. Their evidence is not consistent whether he paused between each ring or each knock or how long the pauses may have been, but all agree they heard a female voice scream loudly after the third police challenge.

Each of the officers variously described the female voice they heard as sounding distressed, hysterical or like a person who was desperately in need of help. [ 48 ] All of the officers who arrived on scene testified that the bedroom was at the far end of the house. The door to the bedroom was closed. Their evidence is not consistent regarding who entered the bedroom first and whether or not there was a bed in the bedroom. The scene photographs clearly indicate there was no bed. I do not consider who entered first to be significant, but I prefer the evidence of Constable Hapke on this issue.

He was the officer who rang, knocked and issued the challenges. He was the officer who radioed they were entering the home and he testified he was leading the way. He was also one of the officers who pulled the Accused off the complainant. Constable Reyes confirmed Constable Hapke was the officer who opened the door. [ 49 ] In any event, each of the officers testified that the Accused was naked, lying on top of the Complainant in the missionary position, thrusting his hips back and forth.

All of them testified that the Complainant was screaming hysterically and her arms were pinned, either overhead or to her sides. [ 50 ] Constable Reyes testified that it was evident the Complainant was struggling by the way she was moving. He testified she was crying, and moving her legs in an aggressive fashion, as if she were trying to get someone off her or to move her body away from someone. He also testified the Accused was not wearing a condom when the police removed the Accused from on top of the Complainant.

The Accused’s penis was partially erect and he appeared startled. [ 51 ] Constable Hapke testified that the Complainant’s legs were up in the air and both the Accused and the Complainant were struggling. He testified that it appeared to him as though the Complainant could move slightly side to side, but she was not able to get out from under him or break his grasp on her arms held over her head. Constable Hapke was the only one who described the Complainant’s face. He testified she appeared to have tears running down her face, her eyes were wide, her face was pale, and she appeared fearful and very scared.

He too observed the Accused as he and another officer pulled him off the Complainant. Constable Hapke testified the

Accused had a semi erect penis, he was not wearing a condom, and he appeared to have fresh scratch marks on his back.

The scratch marks were not mentioned by any other officer and nobody appears to have been directed to photograph those scratch marks. [ 52 ] Finally, Constable Hapke told Defence counsel that based on the Accused’s demeanor, he formed the opinion that the Accused did not appreciate the police had entered the bedroom or that the persons in the room with him were police. [ 53 ] Any of the officers who were asked agreed with Defence counsel they did not see the Accused attempting to cover the Complainant’s mouth at any time.

Further, while there were inconsistencies regarding what lights could be seen from outside the home and what lights were on when they entered, all agreed the light was poor until they opened the bedroom door. Constables McCarthy and Armstrong testified the light in the bedroom was on. Constable Hapke testified he could not recall what light was on, but said he could visualize the entire room so he knew it was lighted by more than a flashlight.

Constable Reyes told defence counsel he recalled what the lighting was like in the bedroom, but Defence counsel never asked him what it was. [ 54 ] Three out of the four officers testified they observed the Accused was completely naked and on top of the complainant. Constable McCarthy recalled the Accused had a blanket up to his waist covering his body.

I prefer the evidence of the other three officers that the Accused was not covered with a blanket in any way, but the inconsistency is insignificant given that all four officers testified the Accused was in the missionary position for sex and he was moving his hips back and forth at the time. [ 55 ] Constables Reyes and Armstrong testified they placed the Accused in the back of their cruiser at 5:40 a.m. and drove him to the southeast police station where they arrived at 5:42 a.m. Constable McCarthy had a brief conversation with the Complainant in the living room.

She testified that the Complainant was still being assessed by emergency medical personnel when she left the residence at 5:35 a.m. and returned to the southeast station. [ 56 ] Defence counsel asked Constable McCarthy about certain statements the Complainant may have made to her, and Constable McCarthy agreed that the Complainant made them. However, as I earlier noted, the Complainant did not deny having made those statements; she simply could not recall them. The following exchange serves to illustrate her inability to recall: Q (Mr.

Rauf:) My question is did you tell Constable McCarthy, whose first name is Amanda, that by 11 p.m., Mr. Mohamed, the other Mr. Mohamed, was already in the residence? A (CS) Like I said, I can’t recall the exact – like, the exact detail and –the conversation I had with her. I just –sorry. I arrived to the hospital dazed and whatnot. I – they let me sleep for a good six hours before I got interviewed by Roxanne. So if anything, I can’t recall the conversation too well. But I remember her – I remember a constable, and I don’t know her name, but talking to me about what happened here and --.

And I didn’t want to go to the hospital. And then she somewhat convinced me. [ 57 ] Constable McCarthy testified that the Complainant made these statements after she was removed from the bedroom. That would have been in the time between 5:08 a.m. when the police arrived at the home and 5:35 a.m. when Constable McCarthy left the residence. Constable McCarthy testified that she spoke to the Complainant for 15 or 20 minutes. Constable McCarthy described CS as in shock, emotional, very upset and crying.

She testified that the Complainant’s demeanor did not change much during that time, but once she was separated from the Accused and knew she was safe, she calmed down a bit. [ 58 ] The Complainant maintained throughout her testimony that she recalled there was a conversation with Constable McCarthy, but she could not recall anything about it. There is no doubt that many of the statements made by the Complainant to Constable McCarthy (regardless of whether or not the Complainant recalled at trial making them) are inconsistent with the Complainant’s trial evidence.

However, as I have already observed, it is not surprising that anyone would have difficulty remembering conversations that happened more than two years ago, but especially so when the statements were made immediately following the stressful and chaotic circumstances described by the Complainant and the roommate. The only thing that can be concluded from any contradictions or inconsistencies between the Complainant’s trial testimony and what she told police after the incident is that the Complainant’s recollections about what happened and in what sequence may not be entirely reliable. D.

Post-Arrest Evidence [ 59 ] The Crown called two witnesses who interacted with the Complainant after she left the Accused’s residence. Constable Jerebic, a police officer, was directed to wait with the Complainant at the hospital. The Complainant was also interviewed and examined by a member of the sexual assault response team [“SART”]. [ 60 ] Constable Jerebic testified she was directed to attend at the hospital and remain with the Complainant until the SART nurse arrived. She initially met with the Complainant at 7:20 a.m. but at that point the Complainant was asleep.

Constable Jerebic told the Crown that the SART nurse arrived at 1:53 p.m., but she agreed with Defence counsel that the first time the SART nurse arrived was at 8:06 a.m., and that Constable Jerebic returned to the station shortly after the nurse arrived. Constable Jerebic testified that she woke the Complainant at 12:56 p.m. At that time the complainant had not yet seen the SART nurse.

Constable Jerebic testified that she observed the Complainant was tired, hurt and upset. [ 61 ] She further noted an extremely visible set of teeth marks on her inside right arm by her bicep measuring 3 inches by 3 inches and another set of bite marks above her right elbow that had nearly broken through the skin. She testified that she observed additional injuries including swelling to her left side cheek. [ 62 ] Constable Jerebic agreed with Defence counsel that the Complainant told her that she and the Accused were the only two people in the residence at the time and that no one else was drinking with them.

She also agreed the Complainant told her the Accused punched her in the head three times with his left hand. Defence counsel did not put those exact statements to the Complainant and in any event, he suggested to the Complainant that she made the statement at the hospital to a male officer named Jerebic. Constable Jerebic is a

woman. [ 63 ] The SART nurse testified regarding her examination of the Complainant. She testified that she received a page at 1:00 p.m. that her services were required in the emergency department at the hospital. The nurse arrived at 1:50 p.m. She recalled speaking to Constable Jerebic and that she met with the Complainant at 2:00 p.m. The SART nurse told Defence counsel that she did not recall whether she was the SART nurse on duty at 8:05 a.m. on October 30, 2012, or that she saw the Complainant at 8:12 a.m., or that she attempted an assessment of the Complainant at 9:13 a.m.

There is no evidence that any exam was attempted earlier and I concluded from the evidence of Constable Jerebic and the SART nurse taken together that the SART nurse may have arrived earlier, but the Complainant was asleep until Constable Jerebic woke her up just before 1:00 p.m. [ 64 ] The SART nurse described her forensic exam, including the injuries she observed and the samples she collected. She testified that, among other injuries, she observed bruises, abrasions, lacerations and a bite mark with dark red areas.

In addition, the Complainant voiced tenderness and withdrew from light palpation to her external genitalia and vocalized pain during her examination of her internal genitalia requiring her to stop the procedure before completing that exam, but after obtaining 2 swabs. [ 65 ] The SART nurse acknowledged in cross-examination that she found a trace hair that did not appear to belong to the Complainant and that she swabbed the bite marks so that any biological evidence or saliva could be analyzed. She confirmed she documented that a condom had been used in one instance, but not in another.

She told Defence counsel it was the police who advised her that the Accused had admitted to them being HIV+. [ 66 ] Finally, the SART nurse confirmed the Complainant declined an anal exam, notwithstanding the Complainant told her there had been attempted anal penile penetration.

CS also declined a torso exam and an antibiotic injection against throat gonorrhea after being advised of the risks and benefits associated with it, preferring instead to attend an STD clinic in a week’s time. [ 67 ] Defence counsel did not ask her about any conversations she had with the Complainant about the origin of her bruises. [ 68 ] The Crown also called Constable Sadoway, a member of the police identification unit, who was tasked with taking photographs of the Complainant and of the residence. [ 69 ] Constable Sadoway testified that she arrived at the hospital at 4:35 p.m. and met with Detective McKean who gave her the samples that had been collected by the SART nurse during her forensic exam.

Constable Sadoway then met with the Complainant at 4:55 p.m. to take photographs of the Complainant’s injuries. She testified that the Complainant pointed out the injuries that were new and she photographed those. Constable Sadoway agreed with Defence counsel that the Complainant told her that the she had bruises on her body, arms and legs that were from another and earlier incident.

Counsel did not ask Constable Sadoway if the Complainant said anything about an earlier fight. [ 70 ] Constable Sadoway agreed with Defence counsel that her overall photographs would have depicted both old and new injuries, but the close up photos were only of the injuries the Complainant identified as new. Among the injuries photographed at a close distance were bite marks on the Complainant’s right arm and the bruising and swelling to her face.

My review of a photograph of one of the bite marks is consistent with Constable Sadoway’s evidence that the skin was broken and the photograph itself appears to depict the presence of fresh blood. [ 71 ] Constable Sadoway testified that after she completed her work at the hospital, she returned to the detachment and secured the exhibits in the fridge.

She then met Detective Laforce at the residence to execute a search warrant Detective Laforce had obtained: to photograph the scene and to seize any exhibits. [ 72 ] Constable Sadoway testified that she seized two condoms found on the bed and one of the many blankets on the floor. She testified that a hematest she performed on the blanket screened positive for blood on one side and negative on the other. She eventually took the seized items back to the station and secured them. At that time she also correlated the exhibits in the sexual assault kit with the paperwork prepared by the SART nurse.

On November 21, 2012 Constable Sadoway received authorization to send certain exhibits to the RCMP lab for analysis. She did so the following day. [ 73 ] In cross examination, Constable Sadoway confirmed that she did not seize a bra or a cellphone. If there had been clothing in the hallway, she would have photographed it if it had been disclosed to her as an area of interest.

She told Defence counsel she had been told that the major incident had occurred in the northeast bedroom of the home and that was the focus of her task. [ 74 ] Finally, Constable Sadoway confirmed that she was directed to send only one of the condoms for analysis along with the: 1. the Complainant’s blood sample, and 2. the oral swab and internal and external genital swabs obtained by the SART nurse. She was not directed to send the bite mark swabs and confirmed they were never analysed. [ 75 ] The Crown also called Staff Sergeant Devin Laforce who confirmed he obtained a warrant to search the residence.

He testified he met Constable Sadoway at the residence and they executed the search warrant between 7:49-8:50 p.m. He confirmed the focus of the search was the northeast bedroom and he gave the best description of the layout of the home, including the fact that the Accused’s bedroom was located at the farthest end of the hallway after a slight turn to the right. [ 76 ] He testified that within 15 minutes of Constable Sadoway’s departure from the residence, another constable located a cellphone in the closet just north of the bathroom.

Staff Sergeant Laforce used it to call his personal cell phone and confirmed the number that was displayed matched the number he had been advised belonged to the Complainant’s cell phone. He told Defence counsel that one week later he returned the phone to the Complainant as directed.

[ 77 ] Next, the Crown called Mr. McLaren who is employed by the RCMP forensic lab as a DNA biologist. The Court qualified Mr. McLaren as an expert qualified to give opinions regarding the identification of human body fluids and hair, and in the

interpretation and typing of DNA profiles including estimating the statistical percentage of random matching. Defence counsel did not challenge Mr. McLaren’s qualifications. [ 78 ] Mr. McLaren confirmed he received a condom, a blood sample belonging to the Complainant, an oral swab from the Complainant and swabs from the Complainant’s internal and external genitalia. In addition, he was provided with a sample of the Accused’s DNA. Detective McKean obtained this sample in August, 2014. [ 79 ] Mr.

McLaren testified that only the condom was sent for DNA analysis because no semen was found on the oral or labial swab and the presence of semen could not be confirmed on the internal swab notwithstanding it screened positive for semen. [ 80 ] Mr. McLaren testified that the outside and inside condom surfaces, delineated by the manner in which the condom is received, revealed a mixed profile consistent with more than 2 contributors. Mr. McLaren was able to isolate one from a female that he matched to the Complainant and one from a male with sufficient genetic material to allow further analysis.

He testified that the remainder of the mix was too weak to make any further genetic comparisons regarding the remaining contributors. He testified that based on his further investigations regarding the male profile that he was able to isolate; he concluded it did not match the Accused’s DNA. He was not able to state how long the semen had been on the condom he received. [ 81 ] Finally, the Crown called Detective McKean.

Detective McKean testified that she is a 22 year member of the city police force and was on duty on October 30, 2012 when her staff sergeant directed her to interview the Complainant and to collect and maintain continuity over the sexual assault exhibits. She testified she met with the SART nurse at approximately 4:25 p.m. that day and after designating each of the samples received with her initials, she passed the kit on to Constable Sadoway. Detective McKean confirmed she conducted an audio videotaped interview of the Complainant at 6:00 p.m. on October 30, 2012 at the police station.

Detective McKean also confirmed she obtained and executed a warrant to obtain a sample of the Accused’s DNA, which she passed on to the RCMP lab for analysis. [ 82 ] In cross-examination, it became clear that statements attributed to the Complainant in Detective McKean’s narrative report were not verbatim recordings of the statements the Complainant made in her recorded statement made under oath. Detective McKean testified she watched the recorded statement and later recorded in her narrative report, in a

summary way, some of what the Complainant said in her recorded interview. She told Defence counsel there was a lot missing. It is important to state here that there is no evidence before the court to prove what the Complainant actually said in her sworn, recorded statement to Detective McKean, which is the best evidence of her words. Defence counsel never put the actual statements to the Complainant or to Detective McKean. III. The Parties Positions A.

Crown Argument [ 83 ] The Crown argues that the evidence before the Court establishes beyond a reasonable doubt each element for each of the offences with which the Accused is charged. The Accused admits the recognizance and the specific conditions that were binding upon him on October 29-30, 2012. The Crown argues that the evidence before the court proves beyond a reasonable doubt the Accused breached those conditions. [ 84 ] Further, the Crown argues that the roommate and Constable Hapke were in the best position to testify about what they saw and their evidence should be preferred.

The Crown argues that notwithstanding the inconsistencies between the Complainant’s evidence and that of the roommate, the roommate and Constable Hapke together corroborate the core of the Complainant’s evidence. [ 85 ] Finally, the Crown discounts as irrelevant DNA evidence connected to the condom as well as any conspiracy theory, first because there is no evidence of such a conspiracy and second, because it was the Accused who was found by police on top of the Complainant having sexual intercourse with her in circumstances that remove any doubt about the Complainant’s lack of consent. [ 86 ] The Crown contends that even if the Court discounts the Complainant’s evidence entirely, it should still be satisfied that the Crown has met its burden of proof in relation to each of the charges against the Accused except for Count 3.

The Crown concedes that the only evidence relevant to the uttering of threats was from the Complainant. B.

Defence Argument [ 87 ] The Defence argues that the Complainant should not be believed because of the inconsistencies between her trial evidence and what she told the police and others happened to her, but especially because of the contradiction within her trial evidence about whether the Accused attempted to penetrate her anally. [ 88 ] Further, the Defence argues that because the roommate does not support the magnitude of what the Complainant testified happened to her in the hallway, the Court should not accept the evidence of either witness because it would be impossible to know for sure which one of them is telling the truth and which one of them lying. [85] Finally, he argues that the DNA on the condom suggests the involvement of an unknown male contributor other than the Accused.

That makes it dangerous to convict the Accused because of the possibility she had sex with someone other than the Accused. IV The Law Applicable to Each Count

[89] For the Accused to be found guilty of sexual assault causing bodily harm (Criminal Code, s 272(1)(c), the Crown must provebeyond a reasonable doubt that the Accused: 1. intentionally applied force to the Complainant, 2. in circumstances of a sexual nature, 3. such that it violated the Complainant’s sexual integrity and caused bodily harm to the Complainant.

If, on all of the evidence, the Court is satisfied that the Accused intended to inflict bodily harm on the Complainant, then her consent isirrelevant and the Accused must be found guilty of sexual assault causing bodily harm. [90] If the Court is not satisfied that the Accused intended to cause the Complainant bodily harm then the Court must be satisfiedbeyond a reasonable doubt that the Complainant did not consent to the intentional application of force.

If the Crown fails to meet theburden of proof to establish sexual assault causing bodily harm, the Accused can nevertheless be convicted of the included offence ofsexual assault simpliciter if the Court is satisfied beyond a reasonable doubt that the Accused intentionally applied force to theComplainant in circumstances that violated the Complainant’s sexual integrity to which the Complainant did not consent: R v Zhao,2013 ONCA 293, 305 OAC 290. [91] To prove sexual assault (Criminal Code, s 271), the Crown must prove beyond a reasonable doubt: 1. an objective sexual touching, 2. to which the Complainant, subjectively, did not consent, and 3. that the Accused intended to touch the Complainant, knowing of or recklessly or wilfully blind to the Complainant’s lack ofconsent to being touched. (R v Ewanchuk, (SCC), [1999] 1 SCR 330 at para 23, 169 DLR (4th) 193). [92] For the Accused to be found guilty of assault (Criminal Code, s 266), the Crown must prove beyond a reasonable doubt that: 1. the Accused applied force to the Complainant, either directly or indirectly, and 2. without her consent. [93] For the Criminal Code, s 264.1(a)(

A) count, the Crown must prove beyond a reasonable doubt that: 1. the accused uttered threats of death or serious bodily harm and 2. those threats were intended to intimidate or be taken seriously. [94] Before the Court can find the Accused guilty of unlawfully confining the Complainant (Criminal Code, s 279(2)), the Crownmust prove beyond a reasonable doubt that the Accused intended to prevent the Complainant’s freedom of movement by preventing herfrom leaving the residence. The Alberta Court of Appeal has stated the offence of unlawful confinement is a general intent offence.

TheCourt stated in R v SJB, 2002 ABCA 143 at para 33, 312 AR 313 that the intent to forcibly confine is connected with the actus reus andthat no additional, ulterior intent need be proven. [95] Finally, for the Crown to prove that the Accused breached his recognizance (Criminal Code, s 145(3)) in the manner charged,the Crown must prove beyond a reasonable doubt that: 1. the Accused was bound by a recognizance containing the specified conditions and 2. he acted contrary to those conditions. In this case the former component has been admitted. V.

Witness Credibility [96] I will make some general comments about the evidence in this case before going on to consider the specific charges beforethe Court. [97] The Defence urges this Court to reject the roommate’s evidence solely because it is inconsistent with the Complainant’sevidence.

On that basis, the Defence appears to argue that the Court should, for that reason alone, have a reasonable doubt because itcannot possibly know whether the roommate or the Complainant is the one telling the truth. [98] However, Courts instruct juries repeatedly and consistently that they can accept all, none or some of the evidence of anywitness. I instruct myself similarly here. [99] I accept the roommate’s evidence in its entirety. He answered the questions put to him by the Crown and the Defencecarefully and completely.

He made no effort to embellish what happened and he readily acknowledged to Defence counsel when he didnot see something. [100] I accept his evidence that he was sober in the early morning hours of October 30, 2012 and that the Complainant and the

Accused were drunk. The Complainant admitted she was drunk. The roommate testified he knew the Accused from before and had moved in with the Accused almost two months earlier.

Accordingly, it is reasonable to accept the roommate’s opinion that the Accused and the Complainant were drunk. [ 101 ] No other witnesses were specifically asked about the level of sobriety of either the Accused or the Complainant. [ 102 ] Finally, the roommate denied the conspiracy theory put to him by the Defence and there is no evidence before the Court to support a finding that the Complainant and the roommate colluded against the Accused.

This is a bald allegation, nothing more. [ 103 ] I also accept the evidence of Constable Hapke and agree with the Crown that he was a careful and thoughtful witness who gave detailed evidence about what he heard and observed. I accept his evidence that he led the others into the residence and he was the only witness to describe the Complainant as he entered the bedroom before the Accused was pulled from on top of her. [ 104 ] I accept the Defence argument that police witnesses are trained to observe and to make accurate recordings of what they see and hear.

On that basis, I accept Constable Hapke’s evidence that he observed what appeared to be fresh scratch marks on the Accused’s back, whether or not they were later photographed. I also accept Constable Hapke’s evidence that the Accused did not appear to appreciate that police were in the residence or that they were in fact police. I reject Defence counsel’s suggestion, as did Constable Hapke, that Constable Hapke’s observation was nothing more than a guess. I accept that his opinion in that regard was based on the observations he made of the Accused when he entered the bedroom. VI. Analysis A.

The Factual Foundation for Alleged Offences [ 105 ] The circumstances in this case are unusual. [ 106 ] The evidence of the roommate and of the Complainant is difficult to reconcile, but the roommate’s evidence corroborates the Complainant’s evidence in key respects. [ 107 ] First, the roommate’s evidence corroborates the Complainant’s evidence that the Accused physically removed her from the bathroom and that the Complainant could not remove the Accused’s grasp from her person.

The roommate also corroborates the Complainant’s evidence that the Accused wanted her to go to the bedroom with him and she did not want to do so. [ 108 ] The roommate corroborates the Complainant that she asked the roommate to help her twice before he left the residence the first time, and that he heard the Complainant yelling and begging the Accused to let her go when he returned to the residence before he left the second time. [ 109 ] The police then responded at 5:02 a.m. to the roommate’s 4:47 a.m. 911 call. At 5:08 a.m. they entered a bedroom where they found the Accused and the Complainant naked.

That timing is consistent with the Complainant’s evidence that she was in the bedroom with the Accused for 15 or 20 minutes before she heard police yelling into the residence. [ 110 ] The Complainant testified that she tried to fight the Accused off, but she gave up. She testified that she did not want to have sexual relations with the Accused. The roommate corroborates her evidence on that point. He testified that the Accused and the Complainant went down to the Accused’s bedroom and the Complainant returned a minute later.

He said the Accused wanted her to go to his bedroom and the Complainant was making every excuse not to do so. [ 111 ] There are substantial differences between the Complainant’s and roomate’s versions of events. The roommate did not see the Accused: 1. straddle the Complainant in the hallway, 2. hit her ever, or 3. take his penis out. Nevertheless, the roommate’s evidence corroborates those parts of Complainant’s evidence that relate to the essential elements of the charge of assault.

He corroborates the Complainant’s evidence that the Accused intentionally applied force to her in the hallway to which she did not consent. Accordingly, the Roommate’s evidence establishes beyond a reasonable doubt that the Accused assaulted the Complainant. [ 112 ] The evidence of the four responding officers, together with the roommate’s evidence about what preceded his decision to call 911, also corroborates the Complainant’s evidence that the Accused was preventing her from leaving the bedroom.

The roommate saw the Accused physically push or pull the Complainant toward the bedroom against her will before he left the residence. He heard the Complainant begging the Accused to let her go when he returned. The Complainant testified that when she was in the bedroom with the Accused she asked him if she could go. [ 113 ] When police arrived, the door to the bedroom was closed. When they entered the bedroom, the Accused was between the Complainant’s legs and thrusting his hips back and forth.

He was holding the Complainant’s arms above her head while she struggled from side to side beneath him, unable to escape his grasp. The Accused did not appear to appreciate that four police officers had entered his bedroom notwithstanding Constable Armstrong directed him to “get the fuck off her” and had to be forcibly removed. This provides the foundation for a sexual assault charge. The officers witnessed what was obviously sexual touching.

[ 114 ] There is both subjective and objective evidence that contact was not consensual. The Complainant testified she did not consent to oral sex or to sexual intercourse. The Complainant was calling for help. The Accused was pinning the Complainant to the ground by her arms to prevent her from getting out from under him. The Complainant was struggling, she was crying, her eyes were wide and her face was pale.

On that evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that the Accused was intentionally applying force to the Complainant in circumstances of a sexual nature such as to violate the Complainant’s sexual integrity. [ 115 ] I must comment on the following Defence arguments: a. that the Complainant’s account of sexual assault is a fabrication because she did not scream until after the third police challenge; b. that a reasonable doubt must arise because nobody would fail to get up and at least try to put on some clothes if they were committing a sexual assault and four police officers came into the home where the assault was occurring; c. that the Complainant’s testimony is unreliable because she reported seeing a green condom on the floor beside the blankets, but no condom of that colour was located by police; and d. that the DNA on the condom must raise a reasonable doubt the existence of an unknown male contributor suggests the possibility the Complainant had sex with someone other than the Accused. [ 116 ] First, I disagree with the Defence that the Complainant’s failure to scream until she heard the third police challenge suggests she is fabricating anything. [ 117 ] According to the evidence, the Complainant tried first to de-escalate the situation by trying to talk to the Accused about his daughter and appeal to his sympathies should someone do to his daughter what the Accused was doing to the Complainant.

She testified that she screamed and asked the roommate to help her. She testified that the Accused told the Complainant to stop yelling because nobody would hear her and that she was in the bedroom for about 20 minutes before she heard anyone in the residence after the roommate left. [ 118 ] There is no dispute the bedroom was at the opposite end of the house from the front entrance and slightly to the right.

According to the evidence, the bedroom door was closed and the Accused was in that bedroom, pinning the Complainant to the ground, though she was struggling to get out from under him. [ 119 ] Defence counsel never asked the Complainant if she heard anything before she heard the police yell. The Complainant testified that she screamed when she heard police. Absent evidence to the contrary, I infer she would have screamed earlier had she heard anything earlier.

Further, according to police, the Accused did not appear to appreciate that police officers had entered the residence, which suggests that either he had not heard police or he chose to ignore them. [ 120 ] Second, whether or not the Accused was engaged in a consensual sexual act, I agree with the Crown that if four police officers entered the bedroom and told someone to “get the fuck off her”, that anyone would comply.

I also agree with the Crown that the fact that the Accused continued his actions in the circumstance suggests the Accused was angry and intent on continuing to have sexual intercourse with the Complainant, whether or not she consented and whether or not anyone else tried to stop him. [ 121 ] Third, the missing green condom is readily explained when one notes that a condom located and photographed by police on the floor beside the blankets was in white packaging but with green printing. The Complainant in her testimony to both Crown and Defence counsel said more than once that she remembered a green condom.

She asked the Accused to wear it. The Complainant was not shown police photographs of the bedroom area so it is unknown if the white with green text condom is in fact the condom she saw, but it was the only condom on the floor beside the blankets. The other condoms were on or in the blankets and they were used.

In any case, this is at most a minor discrepancy in the Complainant’s recollection of the sexual assault, if it even is a discrepancy at all. [ 122 ] Finally, while the DNA evidence is indeed suggestive of an unknown male contributor, it is not relevant to the absence of the Complainant’s consent to being sexually touched by the Accused given the subjective and objective evidence of non-consensual sexual touching earlier referenced. [ 123 ] I turn now to consider whether the Crown has proved beyond a reasonable doubt that the assault was accompanied by bodily injury. [ 124 ] There can be no doubt based on the photographic record and on the evidence of both the SART nurse and Constable Sadoway that the Complainant had visible injuries on her face and body consisting of swelling, bruises, abrasions and identifiable bite marks.

The only evidence attributing those injuries to the Accused came from the Complainant herself. She testified that the Accused hit her repeatedly in the face and that he bit her twice. [ 125 ] The roommate was not asked by either the Crown or the Defence if the Complainant had any of the injuries later recorded.

However, the Crown asked the roommate to indicate what happened and what he saw when he arrived home in the early morning hours on October 30, 2012 and I infer from the lack of comment regarding particularly her facial injuries that they were not present when he first met the Complainant. [ 126 ] The Complainant denied Defence counsel’s suggestion that she told the Accused she had been in a fight and that she showed him her bruises. She was never asked if she had been in a fight and she was never challenged on her evidence that the Accused bit her.

Defence counsel suggested the Complainant’s answer that she might have been bitten on her right arm rather than her left arm was incredulous. I disagree. I accept as credible the Complainant’s evidence she recalled the Accused bit her twice on an arm, but because everything was so chaotic and due to the passage of time, she was not certain on which arm she was bitten. This is not a critical inconsistency. [ 127 ] The Complainant denied telling the SART nurse that some of her bruises were caused by another fight. The SART nurse was

not asked about those conversations. The SART nurse did confirm she took swabs of the bite marks so that the presence of biological evidence or saliva could possibly be investigated. [ 128 ] The Complainant was not asked about any conversations she had with Constable Sadoway about her bruises, but Constable Sadoway agreed with Defence counsel that the Complainant told her she had previous bruising on her arms, legs and body. However, Constable Sadoway added that the Complainant differentiated old injuries from new ones and Constable Sadoway only took close up photographs of the new injuries.

Those close up photographs included the swelling to her face and the bite marks to her arm. [ 129 ] Whether or not the roommate saw the Accused hit the Complainant, I am satisfied beyond a reasonable doubt that the Accused slapped her repeatedly in the face. CS never resiled from her direct evidence that the Accused never punched her, but only ever slapped her with an open hand. She readily admitted to Defence counsel that notwithstanding she did not remember the conversations she had with police, she probably told them that he “hit, punched and bit her” when she explained what had happened to her.

I accept as reliable that the Complainant would recall the Accused bit her twice, but not necessarily where he bit her two years later. [ 130 ] I agree with the Crown that the Complainant’s efforts to differentiate for Constable Sadoway the injuries she attributed to the Accused from injuries she had previously make her evidence more reliable that it was the Accused who caused the injuries that are depicted in the close up photographs taken by Constable Sadoway. [ 131 ] The photographs depict swelling, lacerations, bruises and abrasions that were visible many hours following the assault.

I agree with the Crown that the photograph of one of the bite marks is particularly disturbing in that the skin appears to be broken in an area depicting rear molars and it appears to show fresh blood in the area of the rear molars. Visually, this was not an old injury. [ 132 ] I agree with the Crown that it defies believability to suggest that the injuries in those close up photographs were caused by anyone other than the Accused and I conclude the Crown has proven that the Accused caused those injuries.

Given the degree of anger described by both the Complainant and the roommate, there can be no doubt that the Accused intended to inflict physical harm. [ 133 ] It is trite to conclude given the forensic and photographic record that the Complainant’s injuries in fact interfered with her comfort and that they were more than merely trifling or transient. [ 134 ] The Crown also argued that the Complainant suffered from psychological harm which is included in the definition of “bodily harm”.

While it is not necessary to decide whether the Crown has proven psychological harm in fact, there can be no doubt it is included in the definition. No expert evidence was called on this point, but I have no difficulty in concluding on the basis of the Complainant’s evidence alone that the Accused’s application of force in circumstances of a sexual nature caused the Complainant psychological harm. [ 135 ] The Complainant on different occasions testified that she had tried to put the Accused out of her mind and to move on with her life, but the trial was causing her to relive the event.

More importantly, when Defence counsel pressed the Complainant to admit she had been at hospital because she had overdosed on drugs, she told Defence counsel that she was there because she thought she might commit suicide and that her anxiety levels were not stable since the incident occurred. [ 136 ] On the charge of uttering threats, the only evidence of the Accused’s threat comes from the Complainant. She testified that the Accused threatened to cut her up and put her in bags like garbage. I find this aspect of the Complainant’s evidence plausible. She testified that she knew the Accused was a butcher.

The violence in their interaction was new: he had never previously hit her. She believed he was going to kill her. [ 137 ] When Defence counsel suggested she was only making that evidence up and that it was untrue, she denied the suggestion and told Defence counsel it was not untrue and the she vividly recalled the things the Accused said to her. She said they stuck in her mind. I find her evidence to be credible in the circumstances she described, especially given the roommate’s evidence that he was becoming angrier and threatened to beat him up if he intervened.

I also am struck by the very specific nature of the threat as described. This was not a general threat to kill but one that is specifically based on the Accused’s profession that was known to the Complainant. [ 138 ] I turn finally to the allegations that the Accused breached his recognizance in the manner charged. Given the admission regarding the recognizance that bound the Accused at the relevant time, I am satisfied beyond a reasonable doubt, on the evidence of the Complainant and the roommate, that the Accused was consuming alcohol on October 29 and 30, 2012, contrary to the conditions of his recognizance.

Given my findings regarding the other charges, I am also satisfied beyond a reasonable doubt that the Accused failed to keep the peace and be of good behaviour as he was bound to do by the provisions of his recognizance. [ 139 ] I am, however, not satisfied beyond a reasonable doubt that the Accused failed to present himself at the door of his residence to any peace officer who attends based on Constable Hapke’s evidence that the Accused did not appear to appreciate that police were actually in his residence. B.

Findings of Fact [ 140 ] From my analysis of the evidence before the court, I make the following findings of fact beyond a reasonable doubt: a.) the Accused and the Complainant were drunk when the roommate arrived at the residence just before 3:00 a.m. on October 30, 2012; b.) the Accused intentionally applied force to the Complainant without her consent when he physically removed her from the bathroom and held her against the wall by her arms and when he moved her toward the bedroom as she tried to make herself heavy to prevent him from doing so; c.) the Accused prevented the Complainant from leaving the bedroom without lawful authority for at least 20 minutes;

d.) the Accused intentionally applied force to the Complainant in circumstances of a sexual nature by pinning her to the ground by her arms and having sexual intercourse with her; e.) that intentional application of force caused bodily harm to the Complainant consisting of bruises, swelling, lacerations, and bite marks to her body which the Accused intended to inflict; f.) the Accused threatened the Complainant by telling her he would cut her body up into pieces and put her in bags like garbage; and g.) the Accused did not appreciate that police had entered his residence or his bedroom. C.

Conclusion [ 141 ] Based on all the foregoing, I conclude the following regarding each of the charges against the Accused: a.) On the charge that the Accused, in committing a sexual assault on the CS, caused the CS bodily harm, I find the Accused guilty. b.) On the charge that the Accused unlawfully assaulted CS, I find the Accused guilty. c.) On the charge that the Accused knowingly uttered, conveyed or caused CS to receive a threat to cause death or bodily harm to CS, I find the Accused guilty. d).

On the charge that the Accused unlawfully confined CS, I find the Accused guilty. e.) On the charge that the Accused, while at large on his recognizance, and bound by a condition requiring him to keep the peace and be of good behaviour, failed to do so, I find the Accused guilty. f.) On the charge that the Accused, being at large on his recognizance and bound to comply with a condition requiring him to present himself at the door of his residence to his supervisor or to any peace officer, I am not satisfied beyond a reasonable doubt that the Accused was aware that police were in his residence or in his bedroom even once they were in the bedroom.

Accordingly, I find the Accused not guilty. g.) Finally, on the charge that the Accused, being at large on his recognizance and bound to comply with a condition requiring him to refrain from the purchase, possession, use or consumption of alcohol, failed to comply with that condition, I find the Accused guilty. Heard on the 15 th day of September, 2014. Dated at the City of Edmonton, Alberta this 07 th day of November, 2014. M.G. Crighton J.C.Q.B.A. Appearances: Carole D. Godfrey Alberta Justice for the Crown M. Naeem Rauf for the Accused