R v Leblanc, 2021 ABQB 60

Court of Queen’s Bench of Alberta Citation: R v Leblanc, 2021 ABQB 60 Date: 20210125 Docket: 200327377Q2 Registry: Ft. McMurray Between: Her Majesty the Queen Crown - and - Leonard David Leblanc Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victim must not be published must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________

A. Introduction [ 1 ] Mr. Leblanc is accused of sexual assault causing bodily harm to the complainant, unlawfully confining her, and uttering threats to her in the course of their interactions on March 15 and 16, 2020 in Fort McMurray, Alberta. [ 2 ] This is a credibility-and-reliability case, with the complainant and accused giving starkly different testimony about the key events. The complainant testified to going to the accused’s apartment to use the bathroom and warm up after an evening spent downtown, largely outside.

After an initially friendly visit, the accused suddenly turned violent, beating her and subjecting her to an injury-causing sexual assault, restricting her movements, and threatening her life, until she was finally able to escape and obtain help from a neighbouring tenant, who called police. [ 3 ] The accused testified that his contact with the complainant began and ended on friendly terms, starting with a trip to a liquor store via cab with her, a return trip by him after their first purchases went astray, the complainant remaining at his apartment while he was away and welcoming him, naked in his bed, on his return, the consumption of crack cocaine by both of them, consensual sexual relations, him eventually passing out for the night and her (as he last saw her) restless but otherwise well, and him waking in the morning with police at his door. [ 4 ] I conclude that the complainant’s account of the critical events is credible and reliable, that the accused’s account of those events is not credible, that physical, neighbouring-tenant, and police evidence all shore up the complainant’s account, that nothing in the entire body of evidence gives rise to a reasonable doubt on any of the three charges, and that, in committing this savage attack on the complainant, the accused is guilty of all three charges.

B. Law [ 5 ] Both counsel invoked the well-known teaching of R v W(D) [1] , per Cory J. for the majority: Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury [or himself or herself] 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. [ 6 ] The defence also referred to our Court of Appeal’s reframing of the W(

D) framework in R v Ryon [2] , which the Crown agreed was useful: … the [jury] charge should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. … (ii) In that context, if the jury [or judicial trier of fact ] believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. … (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit . (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty . Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.

Finally, where there are included offences or multiple charges, the trial judge must ensure the jury understands that a reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges. [emphasis added] C. Crown’s evidence Complainant [ 7 ] The complainant testified that she first met the accused on the evening in question, via her cousin, outside Fort McMurray’s casino downtown, that sometime earlier that day (either 9:30 am or 9:30 pm) she had purchased a “two-six” to share with her sister and

other downtown friends, that she had had “a few sips” of it that evening, that around 10 pm she needed to go to the bathroom, that she started to “do the pee dance”, that the accused told her he lived nearby and could use the bathroom at his place, that she went to his place with him, that she used the bathroom and then, to warm up (having spent the evening largely outside), she accepted the accused’s offer of a beer, that the two of them “bull-shitted” for maybe 30 to 60 minutes, that she had to use the bathroom again, that she went into the bathroom, that while she was on the toilet, the accused opened the bathroom door and, grabbing her by the ankles, dragged her to his bedroom. [ 8 ] Her testimony continued: [The accused] started trying to rip off my sweater … he dislocated my arm … he then pulled my pants down further … I tried to fight back [but] he punched me out … he grabbed me [and] threw me on his lap like [I was] a little kid … I felt like a ragdoll.

He started fisting me and stuff like that. I would fight, but he would hit me. I remember him trying to grab some [kind of] object, and him trying to put that in me … [we were] fighting over that. I got it out of his hand. Then he started fisting my asshole … [I got away] and made it from outside his bedroom door and then he started hitting me again [and]. fisting me and stuff like that. He tried to grab a broom or something … tried to shove that in me … [we were] fighting over that … I stretched and got it away from him and threw it [into] the bathroom.

He started hitting me again and saying “I am going to tie you up and get your daughters and make you watch.” [It was] like a light switch [that came] on. I twisted his balls and would not let go of his balls.

I then bolted it out of there as fast as I could … I was sacred, like he was going to come back and kill me or something. [ 9 ] Asked in direct examination what the accused was wearing when he came into the bathroom, she answered: “I don’t know … blue jeans and black shirt … or something.” [ 10 ] Elaborating on the attack, and speaking first of when he started ripping off her clothes, she said: “I was trying to fight back … to stop him doing what he was doing … every time I yelled or tried to fight, he would hit me … in the head, and on my back … and my ribs … every time I would cover my face right away.” [ 11 ] Asked how the accused “put you over him”, she said “he grabbed ahold of me by my hair and one leg, pulling me on his lap.” [ 12 ] She said that, by that point, she was naked and face up on the accused’s lap and that he “started putting his hands in my vagina deeply … his whole hand.” Asked what sensation that caused, she said “he was hurting [me] … like giving birth, I swear to God.

I would scream, and he would punch me out … really hard … [he said] ‘stop screaming, [or] I will do it again’ … I screamed again … more hitting [by him] … he was [at one point] covering my mouth.” [ 13 ] Asked if the accused did anything else to her with other parts of his body, she said: “No … [only] punching with hands and shoving [his] hands inside me … I kind of blacked out a few times because of the pain [which was] so bad and severe … he fisted my bum-hole too, with his whole hand … yeah, his whole hand in [my] anus, and in my vagina … he was [also] trying to bite me … bite my nipples off … I kept covering them … he kept hitting me … every time I fought back, he punched me out … he bit my nipples.” [ 14 ] Asked if she had a sense for how long she was on the accused’s lap, she said: “I don’t know … felt like forever … like [it was] never going to stop … I wanted it to stop.” [ 15 ] Asked about the objects she first mentioned, she said: I made it [away from the accused] as far as outside the [bedroom] door … the bathroom was in between the bedroom and … the bedroom and the bathroom were close to each other … I made it outside the bedroom … there was a broom behind him … he grabbed a broom and tried to shove it inside me … in my vagina … I got it away from him … I grabbed the [broom] handle and threw it in the bathroom … [it] did not make contact with my vagina or anus … [after I tossed it] he started hitting me [again] …. [ 16 ] Asked if the accused tried to put anything else inside her, she replied: “Some kind of metal thing … looked like a crack pipe … he did not get it inside me … he was trying to put it inside me … he did not.” [ 17 ] Ask if the accused was speaking to her during some or all of these events, she said: When we were fighting over the broom handle, he said “I will tie you up and get your kids and make you watch. [Asked “watch what?”] I don’t know … what he would do to my kids? [That] was like a light switch went on.

I thought “I have to get the fuck out of here!” I almost ripped his balls off … I should have fucking ripped them off. [Asked how the accused’s testicles were exposed for her to grab] He was … he took off his clothes when he came into the bathroom to pull … when he pulled me off the toilet, he was naked. When we got there [presumably meaning to the accused’s apartment] that is what he was wearing [i.e. the jeans and shirt mentioned earlier] … in the bathroom, he was butt naked.

He was naked for all of this [presumably meaning the described assault]. [ 18 ] Asked if she remembered him saying anything else to her while this was happening, she said “He said he was going to shoot me … he was saying ‘shut the fuck up before I shoot you’ … I was screaming for help.” Asked how she felt when she heard that: “Scared.” [Asked why] “Because I thought he was going to shoot me and kill me.

Even when he was doing that, I thought he would snap my neck or something … I was so scared for my life … [I had not been] so scared my entire whole life … something that bad … I’m just trying to forget about this … and what happened to me … [witness crying now] [it is] like it happened just a few hours ago … I still feel the pain of what he did to me.” [ 19 ] Asked if anyone else was in the accused’s apartment, she said no.

Asked if she was alone with the accused, she said “yes … nobody else there … when I walked in [to the accused’s apartment] I could see the living room and kitchen and later the bathroom [i.e. she did not see anyone else anywhere in the apartment]. [ 20 ] Asked what happened after she grabbed the accused’s testicles, she said: He started yelling … then he let me go and started yelling ‘what [or why] did you do …?’ I got up and ran as fast as I could … to the

third floor … started banging on doors [in the apartment]. [Asked how many?] banging on lots [of doors] … on every door in that hallway … yelling for help … [a] woman opened her door for me … [I told her I] needed her to call the cops … ‘I have been raped and beaten’ … she gave me a blanket and called the cops … I stood outside that apartment, in the hallway until the cops arrived … I was just so scared … and I was begging her to let me into her apartment. [Asked where she ended up, when the police came] I was in the hallway outside her apartment. [ 21 ] Asked to describe the physical consequences of what she described the accused doing to her, she said: I had bruises … big bumps all over my head and my jaw, and my face was swollen, and I had starting … bruises on my arms and legs, and blood dripping down my legs from my vagina and my asshole from where he ripped me open … just bleeding down there … covered in blood down my legs. … I was so sore all over … my arm popped [or got popped] back into place … I could hardly move … had my head sore and jaw sore, and blood dripping. [ 22 ] Asked what happened after the police arrived and found her in the apartment hallway, she said: I was scared [the accused] was going to shoot me … when I got … walking to [an] ambulance … I was so scared … because he threatened to shoot me … I thought he would … I was hiding behind the cop walking to the ambulance, thinking [the accused] would shoot me.

Then I got into the ambulance [and we went] to the hospital. … [description of events at the hospital] [Asked how she felt after leaving the hospital] I felt dirty and gross … emotional [with] physical side effects … went into depression state … like [if] someone yelled around me, I would get scared … or if someone would grab me, I would get ‘oh God, don’t hurt me’ … thought everyone would hurt me after that hurt. … I could hardly walk for at least a week … not even touch or nothing like that … [it] just burned when I peed … covered in bruises.

A few days later, I could [still] see his finger marks on my legs and on my arm and [witness crying] bruises on [my] back and everything. [ 23 ] Asked to describe the accused from memory, she said: He had greyish hair … teeth missing … maybe 6’2” … skinny and tall … [asked about having earlier described him as “Dave”] … that is what everyone called him: “Camper Dave.” That was the first time I ever met the guy. [Asked if the person who “did that to you” was present] He is sitting there [gesturing to the accused in the prisoner’s box] [Asked again if the person who “did this to you” is present here] Yes … he is sitting over there [gesturing to the accused]. [I recognize him] … [the one] who brutally raped me. [ 24 ] On cross-examination , the complainant testified that she had been drinking “during the day of March 16”, then said she had “just started drinking … when I bought a two-six, around 9:30 pm”, that she had just had “a few sips” by the time she met the accused around 9:30 pm that evening and clarified that it was “a few sips, between me and my sister”, that they had jointly consumed about “maybe two inches” out of the bottle, that the bottle had also been shared with “whoever else was around”, that “when I take a drink, I give whoever else is around a drink … that is how it is on the streets … you share … you don’t be cheap … everybody takes care of everybody else out there”, that she had been drinking the two-six while waiting for a bus, that she would not have been able to take the two-six back to where she was staying [a shelter], that, if she had not been able to finish the bottle, she would have given it to somebody or stashed it outside somewhere in the snow. [ 25 ] Continuing on cross, she said that she met the accused shortly after 10 pm (noting that she and her sister had just missed their bus), that they went back to where they had been hanging around (outside the downtown casino), that she met the accused then , while he and “some other guy” were talking with her cousin T, that she had never met the accused before that evening , that she did not recall meeting him the night before (“No, I did not … I was not downtown the night before”), that she did not recall meeting him with a person named RB the night before the incident, that she was not part of any meeting of people at the Stonebridge Hotel the night before, and that she had not met the accused earlier in the day of the incident . [ 26 ] Still continuing on cross, she said that she had been at the same apartment block earlier that day (around 11 am … between 11 am and 1 pm), that she had seen RB that day but did not follow her to see whoever RB was going to see, that (again) she had not met the accused on her earlier visit to the apartment block that day, that she had gone there to look for a guy (

C) who owed her money and who lived in or around the apartment block, that C owed her $900 on account of “bouncing a cheque in my bank account”, that C had said he would pay her that day, that she was with RB and also her (the complainant’

s) sister, that she and the others found C, who did not pay her but who said he would pay her if given more time, and that she did not get into a fight with C that day (“I had high heels on … I could not get into [any] fight [and] he is a guy … why try to fight some guy?”). [ 27 ] She also said (on cross) that she went to the accused’s apartment to use the bathroom and that she was at his apartment “maybe ten minutes … because [I was] warming up as well … only there ten minutes … maybe less.” Asked if she was drinking while at the accused’s apartment, she said “I had a few sips of a mickey … he had a mickey [of] vodka.” Asked how much: “a few sips … maybe like a quarter of a shooter, because when I drink vodka I take a bit at a time … no big drinks or chugging.” [ 28 ] Defence then asked her to review her statement given to the RCMP on March 19, 2020, three days after the incident.

Asked if she recalled speaking to the RCMP that day, she said no.

Asked again if she recalled speaking to the RCMP, she said “vaguely … I just heard … was erratic … was erratic about what was happening to me … I remember speaking to them … I [do] know what happened to me … [again asked if she had a chance to review her statement] yes, but I did not need [the statement] because I know what happened to me … I did skim through it … I know what happened to me … I know what happened that day … I was not drunk.” [ 29 ] We then took a short break to allow the complainant another opportunity to review her statement, which she did.

Cross- examination then resumed, with defence quoting her from her statement: “He got frigging cocky … [I] went to get my shoes and he fucking came [in] front of me and he said ‘you ain’t fucking going nowhere’ … he just fucking headbutted me … [dragged] me right … like look at these bruises all over me.” Asked if she remembered making that statement to the RCMP, she said: “I do not remember … no … maybe, if I made this statement … maybe I blacked out … I just remember him pulling me off the toilet.” Defence said: “But in your statement to the RCMP, you said you were going to grab your shoes and that is when he assaulted you.” Complainant: “Yes … when I was trying to get away the first time, that is when this happened [with the shoes] … when I tried to get away the first time, I went for my shoes and he dragged me back to the bedroom … it was wintertime [presumably with reference to going for her shoes].”

[ 30 ] Directed to her evidence of being at the accused’s residence “for about ten minutes or less” and that that was not what she had told the RCMP, she said “I have no idea what I told the RCMP … it has been a year … I don’t remember what I told the RCMP … I just know what he did to me … I can close my eyes and play it all back … I can picture it … I remember all he did to me and said to me, even to this day … I am scared he will get someone after me so I cannot show up for court … I [am] petrified.” [ 31 ] Directed to a statement reference to meeting the accused through RB, she disagreed, saying she had met him through her cousin T.

She then said that, at the time of the police statement, she had been “high on medication … because of the stress I was under because of what happened to me … [I was] taking valiums and … all kinds of pills to block out the hurtness and, you know, I was thinking … ‘did I do this to myself?

Did I ask for it?’ [witness crying] … is it my fault it happened to me, you know’ … it drove me crazy … I was almost suicidal … so bad … depressed … kept taking pills to try to block it out.” Asked if she advised the RCMP she was on medication: “No, because the medication was not prescribed to me.” [ 32 ] She then said: “When something so brutal happens to you, you feel fucked up afterwards … [it] destroys you in some ways … still yet today … [I] try not to think about it … just [to] block it out of your memory … and now [to] have to come to court … comes over and playing over and over in my head … [it] really hurts.” [ 33 ] Directed to her statement reference that she had been at the accused’s apartment “maybe an hour, or maybe not even … maybe half an hour before going for her shoes “ and to the contrast between that and her “maybe ten minutes, or less” testimony in direct, she acknowledged the difference: “Fair to say”, then said “like here [in the statement] it is half an hour … maybe about there [i.e. that amount of time] … takes me half an hour to drink a beer.” Challenged again with her “ten minutes or less” testimony in direct and asked whether her stay could have been longer, she said yes, adding “I was trying to drink my beer fast because my sister was waiting for me.” [ 34 ] Asked how many beers she had while with the accused: “Just the one beer.” [ 35 ] Asked if she had any other substances that night (“take anything or smoke anything?”): “I smoked weed with the accused … yes.” Asked if this was earlier, outside the casino, she said yes. [ 36 ] Asked if she recalled going to a liquor store with the accused: “No, I didn’t go to a liquor store with him … I did not go to no liquor store.” Asked if she had gone to a liquor store at all, she said “yes, with my sister [earlier].” Referred to her statement evidence that she went with her friend T to a liquor store, she said she did not remember that.

Asked if the accused accompanied her and T to a liquor store, she said she could not remember.

Challenged with the suggestion that she and the accused went to a liquor store together, she said “I do not know”, followed shortly after by “we did not go to a liquor store [together].” [ 37 ] On the suggestion that she and the accused had bought liquor but could not then find it and that the accused left his apartment to look for the liquor or buy more, she said she could not recall that, and same for the suggestion she took a shower at his apartment while he was gone: “I went [to his apartment] to use the bathroom and warm up because my sister was waiting for me, and to drink a beer while warming up.” [ 38 ] She said she did not recall the accused coming back after an hour and, at that point, lying in his bed: “I was not lying on his bed.” [ 39 ] Asked “do you recall giving oral stimulation to him?” – “No.” [ 40 ] “You do not recall [giving] oral stimulation to him?” – No!” [ 41 ] “Recall him giving you digital stimulation?” – “No.” [ 42 ] Referred to her direct evidence that the accused had tried, unsuccessfully, to penetrate her with a broom handle and a roughly- five-inch-long metal object (“like a crack pipe”) and then to her police-statement evidence that “he was trying to stab me inside my vagina with some kind of yellow … silver … like an allen key or something like that”, she reiterated that the accused had been unsuccessful in penetrating her anywhere with either object: “Correct … we were struggling over [the key-like thing] … I grabbed it away from him … he started punching me more … I started yelling for help … he started punching me hard [and saying] ‘shut the fuck up’ … I thought he was going to choke me to death, to stop me from screaming.” [ 43 ] She then denied smoking crack cocaine that evening: “Just drinking my vodka and that was it” and (after being reminded) “smoking pot as well … yes.” [ 44 ] Asked if she recalled using the broom stick some time in the evening as a kind of karaoke microphone and singing a Madonna song, she said no: “The only time I touched it was when fighting over it to try to get it out of his hands.

I did that and tossed it away from us, so he could not use it on me. He was trying to penetrate me with that as well.” [ 45 ] Asked again about “the first time you say you got away from him”, she said “yes … I made it inside the bedroom door, and [then] he got me.” [ 46 ] Asked if the alleged attack had already commenced when she went to get her shoes to get away the first time, she said: “I tried to get away twice.

The first time, I tried to get my shoes and stuff, and that is when he caught me at the door [and said] ‘Where the fuck to you think you’re going … you’re going nowhere.’ I tried to open the door, but he head-butted me.

I made it to the apartment door or the main door … the first time.” [ 47 ] Referred to direct evidence that “I made it outside the bedroom door and we were fighting again, and he was fisting me”, she said “that was the second time … yes … when brutal stuff happens, you will try to get away as much as possible … I tried to get away as much as I could.” [ 48 ] Defence: “But you said that was the second time.” Complainant: “I just could not get away.”

[ 49 ] Defence: “In direct exam, you did not say this was the second time.” [ 50 ] Complainant: “I have never been here [in court] before … I am having a hard time following and keeping up being on a high dosage of medication [for] stage 4 cancer … I am on oxycontin now … a high dosage … am taking 30 mgs every four hours … I am sitting here in pain … I took a bit of an extra one, to make it through [today’s court] process … took an extra 5mgs today, just before I came in [to court] … I am good, does not affect my memory.” [ 51 ] Asked if her (cervical) cancer had been diagnosed at the time of the incident, she said: No.

I was starting to have problems … trying to go through ultrasounds and stuff like that … it might have come back, him ripping me open so badly … maybe why I got stage 4 so fast … it rapidly grew because now … my doctor said my whole vagina is riddled with cancer …. [ 52 ] Asked for her understanding of whether her illness might have caused the bleeding she experienced after the incident, she said that had not experienced any bleeding pre-incident: “Only time is when he ripped me open on the inside and put his whole hand inside me … I had not bled in ten years [owing to earlier cancer treatments].” [ 53 ] Asked if her current pain (“5” on a 1 (low) to 10 (high) scale) was causing any concentration or focus issues, she said no: “Right now I am good … I can concentrate and talk.” [ 54 ] On re-direct and referred to her testimony of having “had some beer, some weed, some vodka”, she said (re her level of intoxication): “I was not even high or [anything] … I was more stoned on the weed than the alcohol. [Asked how stoned]: pretty much like sober. [Asked what the effect of being stoned on weed would have on her] I just get like … my eyes [eyelids] go low. [Asked about any impact on her memory]: The weed?

No.” Crown’s civilian witness [ 55 ] Ms. Jill Illsen, who lived in the same apartment building as the accused, was the Good Samaritan who opened her door to find the complainant standing outside, naked, asking for help.

She testified that she woke up early that (March 16, 2020) morning, that “around 7:30 am, going on 8 am”, that she heard a knock on her door after hearing knocks on other doors on her floor of the building, that she opened her door partway and saw “a lady outside my door … she was hysterical, saying ‘help me, I have been raped … help me’ … she had no clothes on … nothing on .. [this] really startled me … I shut the door … I did not expect that … I was scared more or less … then I opened my door for her again and … I was really shaky myself … she just said ‘help me, help me, I have been raped, I have been raped’ … her hair was [down] over her face … she was bleeding down her legs, shaking hysterically”, that she said “okay, I will get your some help”, that she called 9-1-1, that the complainant wanted to come in to her apartment, that she was not sure about that, that she got the complainant a blanket to cover herself up “so she did not have to stand like that”, that the complainant was “shaking so bad and needed to be covered up”, that “blood was coming down her leg … blood [was] pouring down her legs”, and that she was hysterical and “all shook up” herself.

Police evidence [ 56 ] Fort McMurray-based RCMP Constables Polesino and Longmead, who were both involved in the investigation here, gave evidence. Cst.

Polesino said she was on duty at 6 am on March 16, 2020, that she received a dispatch call of a potential sexual assault and drove over to the apartment building, arriving between 7:20 and 7:30 am, that she saw the complainant on first entering the building, that the complainant was wrapped in a blanket (which was “very bloody”), that she was curled up in a corner of the stairwell, that the complainant told her she needed help, that she had “a lot of blood around her mouth ... dried-up [blood] … and blood running down her leg (visible with the blanket open around her groin area) .. she [also] had swelling to the left side of her face, and blood under her fingernails … she was fully naked … no shoes, no clothing, just the blanket.” [ 57 ] As for the complainant’s demeanour: “She was very afraid, very shaky … thinking … she feared for her life … [she] could hardly talk in full sentences because she was weeping and crying, saying ‘He was going to kill me, going to kill my family.’ She told me that her vagina and butt-hole were hurting and that [there] was a male in the building that sexually assaulted her.” [ 58 ] She said that “it took me a long time to convince her to leave that corner of the stairwell, because of how afraid [she was that the] individual that assaulted her would kill her … therefore, she did not want to walk in front of the building, where the unit [in question] was facing.

So, I tried to persuade her all would be okay … I pretty much protected her … the only way to take her [out of the building] was to pretty much protect her, console her, and block her view from that side of the building … I guided her towards the ambulance … took about five to six minutes to get her out of the stairwell.” [ 59 ] She then described accompanying the complainant to the hospital and, as reflected in pictures of the complainant taken by her during or around the time of that hospital visit, seeing “bruising on [the complainant’s] body … on her breasts … numerous [bruises] and [what] appeared to be bite marks on her breasts and nipples … the bruising appeared to be fresh (blue and purple), with dots, pointed dots, on her upper body and arm, and also bruising around both ears, and swelling to the left side of her face, plus bruising on her shoulders and back (including lower back too) and blood – dried blood at this point – in the buttocks area, and bruises in her groin area as well. [ 60 ] On cross, Cst Polesino said she observed no signs of intoxication in the complainant and that her opinion as to fresh bruising was based on her personal experiences with bruises i.e. not medical expertise. [ 61 ] Cst Longmead travelled separately to the apartment building that day, responding to a dispatch call received “just before 7:30 a.m.” He also testified to encountering the complainant in a blanket and that he could see blood on the blanket and on the complainant’s mouth, that she appeared to be shivering, in distress and distraught.

He said she told them of being raped in unit 10 of the apartment building, by “a male, in his 50s, with white hair, missing at least one tooth, Caucasian, who was possibly in the military at some point.”

She appeared to Cst. Longmead to be “extremely afraid” and “extremely unsafe, to the point she did not want to go outside the front door [of the apartment building].” [ 62 ] Cst. Longmead gave a detailed explanation of the layout of the apartment and confirmed, as far as he could tell, that unit 010 was indeed the unit from which the complainant had come.

He based this on determining that only two particular doors in the hallway in question offered a perspective from which an apartment dweller could see persons in front of the apartment building and, after eliminating one of the doors as “not an apartment … maybe a laundry or maintenance room”, was left with unit 010 as the only “possible door”, all this combined with the complainant’s fear of walking in the sightlines of that door. [ 63 ] He also testified that, assisted by some later arriving RCMP officers, the officers yelled at the door of unit 010 that the occupant was under arrest for sexual assault and that, after yelling again multiple times, they attempted to breach the door to that apartment, unsuccessfully.

They then heard noises from the apartment and a male yelling that he would could out “in a second” and that Mr.

LeBlanc opened the door shortly after that. [ 64 ] Asked by the Crown how the male compared to the description offered by the complainant’s description, he said “all the descriptors matched.” Asked next if the person he saw in unit 010 that day “is here today?”, he said, “yes, sitting right there” (indicating the accused). [ 65 ] Asked “how does his appearance today perhaps differ from at the time of arrest?”, he said: “[When he was] standing up, it was very similar … he [then] had white facial hair … goatee then … mostly white … [he has] put on a bit of weight since then, but everything [else] matches perfectly.” [ 66 ] He then gave evidence about arresting the accused and eventually taking a statement from him at the police station. [ 67 ] In cross, and asked if he noticed any “physical things” about the accused (“any bruise or scratch on him?”), he said “he did have some minor scratches on him … from what I can’t recall … I remember some minor scratches … superficial … nothing needing stitches.” [ 68 ] Asked for his perception of the complainant’s demeanour at the time of her statement, he said she did not appear to be “under the influence” or intoxicated.

He also said he watches for signs of such when taking a statement from a witness. [ 69 ] Asked the same question about her condition when first encountered at the apartment, he said “no signs of impairment … she appeared to be in shock.” [ 70 ] He also said that “later [the accused] told me he was in the military … that lined up too [with the complainant’s description of him].” He admitted not making a note of that comment but said he remembered this because “the accused said something like he had killed women and children before, in the military … this stood out in my mind.” Asked if he was possibly mixing up what the accused may have told him directly with what the complainant had told him about the accused, he said “I do not believe I am mixing it up.” D.

Defence evidence [ 71 ] The accused was the sole defence witness.

He testified that: • he first met the complainant “a couple of nights before the incident”, at the Stonebridge Hotel, in the company of RB, and that the complainant had asked him to “do something, for example, beat up” the man who owed her $900, and that he explained her was “not an enforcer” and could not help her that way; • he then pinned down the date of their first meeting: “March 14, 2020” i.e. two days before the incident; • asked about his activities on March 15, he said he was doing an errand in the city and bumped into the complainant, her sister, and RB around the casino and that they stopped him and asked if he had seen C (the apparent debtor).

He said he had not, and that this was between 1030 and 11 am. He said they went off in one direction and he in another. He said he eventually headed over to the casino, around 5 or 6 pm and that he usually “sees some friends or has a beer or plays machines” at the casino, that he was there “an hour” and went home again “because of the cold weather … I do not like to stand there [outside the casino] … [with] no more money, cannot do much, at the casino.” He then said he went back, maybe 9:30 or 9:45 pm, that he met “RB and all them”, that RB had a “bruise on her face, from a conflict with C”.

He said he also saw the complainant around the casino (outside), with her coming over about 15 minutes after he met RB there. He said he did not “observe anything” about her, just that she “had a bottle of vodka and gave me a drink.” He asked her if she wanted to “smoke weed”, she said yes, and they sat on a nearby bench.

He said he thought she was “interesting” and that they were “talking, having fun.” • he next said it started getting chilly and that the complainant “wanted to pee.” He suggested she use a washroom at the casino (“no, I’m barred there”) and same for a nearby pizza place, and also for the Stonebridge. He said he suggested that she “piss in the corner” and that she asked if she could go to his place: “I said ‘sure’.” Per him, this was around 10:30 or 10:45 pm, maybe 11:00 pm. “We hopped in a cab and went to a liquor store, then back to my place.

We walked in, and she asked if she could take a shower.” Asked for more details about the liquor-store trip, he said that it happened around 10:30 and 11 pm, that he went into the store and the complainant stayed in the cab, that they arrived at his place around 11 pm and that, as soon as they walked into his apartment, he asked her “Where is the bag with the liquor?” She said she did not have it or see it. He said that he said to her: “I just bought $60 in liquor! Where is it?” He said he went back to the casino to look for the cab they had taken, thinking their purchase might have been left behind in it.

After waiting 30 minutes for the cab to return to the casino area, he said he got into another cab, went back to the liquor store, bought more liquor, and returned to his apartment; • asked for an inventory of the on-hand liquor on his return, he said that “she still had her big bottle of vodka, I [had] bought a

mickey of vodka, and a six-pack of beer”; • he also said that, when he came back from the second trip, which he said took 35-45 minutes, “[the complainant] was naked in my bed.” I said “oh, right on”; I was “all excited type-of-idea”; • “I sat beside her, brought her a beer and [the] mickey … and she still had some [vodka] in her big bottle.

I asked her if she wanted some crack and she said “sure.” I had a bit of crack, and we smoked some … we did a couple of hoots … it makes you hyper … jittery … more sexual … that is what I like”; • he added: “I was tired … was up for eight days … I was falling asleep, laying beside her.” Asked why he had been up for eight days, he said “because I had a hard time sleeping … [that’s] the way I am … plus smoking crack keeps you up … “; • then: “she then … gave me oral sex, and I played with her.

She was naked in my bed.” Asked to elaborate on “playing with her”, he said: “finger sensation … she wanted that … was doing finger sensation … she liked it, and then I was dozing off and I passed out after a while … she kept on … she did [some] singing with the broom … [she was] pretty funny … after a bit she woke up me and asked ‘aren’t you going to party with me’ and I said “yeah, no problem.” Then she started saying ‘there are bugs all over me’ and she started scratching herself, and going in and out of the apartment saying ‘what is the matter … bugs all over me!’ and talking fast and faster.

After asking her what I could do, and her responding ‘nothing’ and her still talking about ‘bugs all over me’, I went and passed out and [next thing I remember] is cops at my door.” Asked if recalled what time he passed out, he said “probably between 11:30 pm and 12 [midnight]” and that he knew this “because of an alarm clock by my bed”; • asked where the complainant was before he passed out, he said “she was going up and down in the hallway of my apartment” and then “was going in and out of [my] apartment and opening and closing doors and windows … I left her alone”; • returning to discussions with RB earlier, the accused said that she appeared bruised to him that evening and that this was after an apparent (to the accused) confrontation RB had had with C earlier that day about money.

He said RB did not want to tell him about it, saying that she had “tripped.” He said he asked the complainant about the “C encounter” and that she told him it was “none of [his] business.” • he reiterated that, after he passed out, he had no idea where the complainant was or what she was doing – “I was passed out”; • he then added “she was going out in the apartment building too”; and • asked how long the complainant would have been at his apartment, he said “35-45 minutes” for the first segment (while he went on the second liquor-store trip) and then (until he passed out) “maybe half an hour, I would say … altogether probably two hours.” [ 72 ] On cross, he was first asked about his understanding from talking to RB at the casino on the evening of March 15 th that she had had a physical altercation with C.

He interrupted with “[with] all three of them.” Then reminded that they had essentially said “this [dealing with C] is none of your business” and asked why they would say that if he had indeed initially been asked (at the Stonebridge) to help with debt collection, he replied “That is a good question … I could not tell you … that is for them to answer that … I cannot tell you why … scared?

Too much violence?” [ 73 ] Challenged with “but you saw nothing [e.g. no bruising] on the complainant” and “you testified you saw no bruises on her”, he said “she had winter clothes on, and her hair … I was talking with RB.” Crown: “But you said earlier that you saw no bruises on [the complainant].” Accused: “Because I was not talking to her, only to RB … after that, I talked to [the complainant].” [ 74 ] Asked next about the two liquor-store trips and the amounts spent on liquor and cabs, the Crown asked: “Earlier you said you left the casino because you ran out of money, so [how] did you have all that money on you?” Accused: “I did not want to spend any more money [at the casino] … no more on the machines, but I did not run out [of money].

I “ran out”, as in “ran out of the casino … I was running.” [ 75 ] After being reminded that he “vividly” remembered “smoking crack and generally having fun” with the complainant, the Crown asked if he remembered how the complainant [ended up] bleeding all over the [apartment] floor.

Accused: “No, I passed out around 12 o’clock … around 11:30 … [I have] no idea how her blood got on the floor.” Asked about blood on his bed, he said: “I was dark … I could have been my finger nails … maybe I cut inside her … I could not tell you.” [ 76 ] Asked about his consumption that evening, he said “a couple sips of vodka, and a beer” and that he “smoked crack and weed.” [ 77 ] Asked about his police statement, in which he indicated not remembering anything, he said “that day I did not remember much … I had a headache … I just wanted to go back to sleep ... that is why I said that … I did not want to be bothered … that is the way I am … I wanted to wait until I got a lawyer.” [ 78 ] In answer to the Crown’s reported confusion arising from the contrast between the accused’s “don’t remember anything” statements during the police interview and his vivid at-trial testimony, the accused said “I have now had ten months to think about [all this] … memory came back [about] a lot of things.” Confronted with “what you remember now is just very different than what you told [the police] … don’t you agree?”, he said “I could not tell you … [shrugging shoulders] … probably.” [ 79 ] Presented with his per-statement account of saying “I met this girl at the casino” and being asked “then what?” and answering (in the statement) “[We] went to my place, I guess, place across the road” and his trial testimony adding the two liquor-store trips, which he apparently did not remember at the time of his statement, he said “I did not feel like explaining that to [the police officer] … it is an invasion of my privacy … that is all he needed to know … that is what I figured.” [ 80 ] On re-direct, the accused testified:

• [when reminded of the Crown asking him about whether he saw bruises on the complainant and his evidence that he did not see anything because of her wearing a lot of winter clothes, and asked if he could speak to whether “bruises or not”] “When she was naked in my bed, she had bruises … she said she got it [or them] from C in a fight”; • [asked if he could elaborate on why his police statement was different than his trial evidence] “That is a good question … I did not want to tell them much … it was the RCMP … I have had bad experiences [with them].

I was brought up in a bootlegger’s house … lots of violence … I had negative interactions with the RCMP … I do not trust them”; and • [asked to elaborate on his condition during the police interview] “I had a headache … asked for Tylenol … [did not get any] … was trying to be brief with them because I wanted to get back to sleep, after coming off a 9-day binge.” E. Analysis Complainant’s evidence General observations [ 81 ] The complainant was obviously under strain while testifying at the trial: changing her sitting position frequently, often rocking back and forth, moving with discomfort.

Even handling the transcript of her police interview and turning pages seemed difficult, with all her movements slow, measured, and seeming to cause discomfort. [ 82 ] She advised that she has stage 4 cervical cancer and that she is currently on oxycontin (30 mgs every four hours). At the close of her “cross” testimony, she testified that she was, and had been through the afternoon, experiencing pain.

On a “1 to 10” scale (1 as lowest; 10 as highest), she said that her pain level through the afternoon (or at least at that point) was a “5.” [ 83 ] She said that she took a “break-through” i.e. an additional 5 mgs (half a 10-mg pill) at a break during her testimony, which she said helped her make it through the afternoon. [ 84 ] Asked by defence if her current medications and, in particular, her dosage on her trial-testimony day affected her ability to concentrate or focus, she said no, that she was able to do both, and had done so throughout the afternoon’s testimony. (Her testimony started at approximately 1 pm and, with breaks for her to review her police-interview transcript (approximately 15-20 minutes) and for defence to consult with the accused before the conclusion of the cross-examination (approximately 5-10 minutes), her testimony concluded (after brief reply questions by the Crown) at about 4 pm.) [ 85 ] She was very emotional at points during her testimony, breaking into tears and sobbing at a few points, primarily when recalling the testified-to attacks she endured.

She said, in the midst of these high-emotion points, that testifying brought the events in question vividly back to mind and caused her to feel (as she said at one point) as if the attacks had just happened a few hours ago (versus ten months ago – March 2020). [ 86 ] She seemed to have to will herself to get through the testimony.

Invited a few times to take a break (e.g. to compose herself after crying or when she seemed particularly tired or sluggish), she said (effectively) that she “needed to get this done … “let’s get this done.” [ 87 ] The best word to describe her demeanour throughout most of her testimony is “laboured.” She seemed to be struggling to get into a position of relative ease or comfort; I am not sure that she did at any point, or at least for any lasting segment of the afternoon; [ 88 ] She acknowledged when she could not recall things e.g. what she and the accused talked about between her two bathroom visits (“just bullshitting … talking”).

She apparently did not feel a need to have “an answer for everything.” [ 89 ] Much of her testimony about physical events (e.g. when describing what the accused did to her at various points during the alleged attack) was accompanied by gestures e.g. pointing to body parts (head, arms, ribs) where she said he had hit her and covering her face to illustrate what she did at other points. [ 90 ] She gave vivid testimony of her reaction to the accused’s statement (per her) that “he was going to tie her up, go get her children, and make her watch”, which she understood to mean making her watch him subject them to similar treatment (i.e. akin to the violent encounter she described).

She said that this was like a “switch coming on” i.e. something so shocking and alarming that she was instantly energized to revive or expand her attempt to save herself.

In her words, “I grabbed his balls, and squeezed them [as hard as I could] … he started screaming ... that was when I was able to run out of his apartment [on the main floor of the building] and up to the third floor, where I started banging on doors randomly, trying to get someone to help me.” [ 91 ] Other aspects of her testimony featured very vivid, detailed descriptions of the evening’s events e.g. describing the excruciating pain caused by the accused “fisting” her vagina and “anus”, which she likened to the pain of giving birth . [ 92 ] Despite being laboured and under strain while testifying, she did not hesitate when giving her answers i.e. time to “compose” answers or to “weigh her evidence” (e.g. against other testimony) before speaking i.e. she spoke, given her adverse health, naturally and in a responsive fashion. [ 93 ] The complainant was not “over the top” or hysterical.

When denying that something was not so, she typically gave her denial without going “overboard” in trying to confirm or amplify the denial. Asserted inconsistencies with police statement

[ 94 ] The complainant reported having little recollection of her police interview (about three days after the alleged incident), saying that she was taking extensive non-prescription medications to deal with her pain caused by the attack (“taking Valiums and all kinds of pills to block out the hurtness”). [ 95 ] Many of her responses when asked to confirm a given excerpt from her police statement were “I do not remember” or “I cannot remember.” [ 96 ] Defence raised various contradictions between her police-statement account and her direct examination testimony, including: • whether she met the accused in the company of RB, which she reported in her statement, versus trial testimony that she was with her sister (and not RB) when she met the accused on the evening in question.

On cross, she specifically denied that RB was with her on the evening in question and also that she had met the accused before that evening; • in her police statement, she reported having gone to the liquor store with her friend T after the hanging-around-casino-area segment i.e. before going to the accused’s apartment. On cross, she said she did not remember that.

She denied having gone to the liquor store with the accused before they went to his apartment; • in her police statement, she reported smoking “weed” with the accused in front of, or across from, the casino, where she had spent a portion of the evening in question, walking with and “hanging out” with her sister and others that evening.

She did not mention that in direct examination; however, she acknowledged smoking “weed” in cross and on re-direct; • per her police statement, she was trying to “grab her shoes” (as part of getting ready to leave) when the accused first attacked her, versus her direct-exam account of having been in the bathroom and on the toilet when he first grabbed her.

She explained in cross that the “shoe grabbing” came part-way through the attack and that that was her first attempt to get away from the accused, with the accused foiling her attempt to get away and saying “you’re not fucking going anywhere”, followed by the accused “headbutting me” and the attack continuing; and • in her police statement, she referred to the accused having put “something metal” into her vagina.

On cross, she confirmed her “direct” evidence that she had actually fought off the accused’s attempt (as she perceived it) to penetrate her with that object (which she described as perhaps five inches long and about one-third of an inch in diameter and which she said may have been a “crack pipe”).

Asserted internal inconsistencies [ 97 ] Defence also questioned the complainant about discrepancies in her “direct” evidence, including between her initial testimony that the accused was clothed (“jeans, black shirt”) when he came into the bathroom and began pulling her by the ankles and her subsequent comment that he was naked at that point. On cross, she said that her initial answer was intended to describe his clothing earlier, including when they were both at the apartment in the initial “peaceful” state.

Differences between complainant’s and accused’s testimony [ 98 ] Defence also questioned the complainant about aspects later testified to by the accused: • one was whether she was involved in a fight with C earlier that day, at or close to the same apartment where the alleged incident happened. She admittedly going to that apartment building to see C earlier that day, to try to collect a debt of $900; however, she denied getting into a fight (i.e. specifically defined as a “physical alteration”) with him.

Per her, C apologized for not being able to pay her and asked for more time to pay, which she extended; • she denied having taken a shower at the accused’s apartment; • she denied that she spent “an hour” drinking (beer) with the accused at his apartment after her arrival (referring a couple of times to “my sister was waiting for me … I needed to get back to her”); however, she did acknowledge that, despite “direct” testimony of having spent “ten minutes” or “even less” between her arrival at the accused’s apartment and her second use of the bathroom at his place, she may have spent up to half an hour (“the time I take to drink a beer”) having “a” beer with him, which he had offered her; • she denied smoking crack cocaine at the accused’s apartment. (She did acknowledge the “weed” smoking in the casino area beforehand, some “sips” from the “two-six” she had purchased with her sister, “a beer” with the accused at his apartment, plus some vodka (“only small sips” – “do not chug or take big swallows” of vodka) with the accused at the apartment); and • she denied giving the accused oral sex and denied receiving “digital stimulation” from him while at the apartment.

Accused’s evidence General observations [ 99 ] The accused listened to questions fully before answering, was responsive, answered largely without hesitation, and did not attempt to “fence” with the Crown, and was even-tempered throughout. [ 100 ] His general demeanour while giving evidence was “matter of fact” i.e. he did not seem uncomfortable or under strain or stress while giving evidence.

[ 101 ] He seemed eager to provide his version of events. Credibility concerns raised by the Crown [ 102 ] The Crown argued that the accused’s testimony was not credible on the key events, pointing to concerns including: • attempt to explain away the complainant’s bruising : the accused offered the theory that the complainant was injured, suffering extensive bruising, in an altercation with C over money earlier on March 15.

However: o when he first raised this subject, he said that RB had told him , on March 15 (evening), about a “conflict with” C, presumably in the context of the intended conversation, earlier that day, about C’s debt to the complainant, and that he observed bruising on RB’s face. Period . He did not say that RB had elaborated on this “conflict” e.g. whether it was simply an argument over the apparent debt, whether it turned into a physical altercation, if so who was involved in it, or for those involved, what injuries they actually or possibly sustained, if any.

He did not even say that RB attributed the “bruise on her face” to the “conflict” or even that the bruise was new (i.e. since he had seen her the day before or even earlier in the day on the 16 th ). Most tellingly, nothing in RB’s apparent account or in his understanding of it reflect any involvement of the complainant in any kind of physical altercation with C (or anyone); o when asked about whether he observed anything about the complainant (who arrived at the outside-the-casino gathering about fifteen minutes later), he said he observed nothing , other than her bottle of vodka.

Later in direct, he said that, on his return from trip #2, “she was naked in my bed … she was in my bed.” He then added “covered with blankets”, but necessarily, at some point, he must have seen her uncovered i.e. so that he could see her “naked.” Tellingly, despite this admission of seeing her naked, he said nothing in that phase of his testimony about any bruising or other visible injuries on the complainant; o at no point in his account did he mention the complainant putting on any clothes.

Per his account, she apparently remained naked throughout the entire hour or so they were together in his apartment i.e. until his testified-to passing out. Yet he said nothing in his direct about bruises or any visible injuries on her. (Incidentally, her being naked throughout squares with her evidence, corroborated by Ms.

Illsen and the police, of her being naked on eventually emerging from the apartment); o nothing in any of the described-by-him activities with the complainant while at the apartment could account for her extensive bruising and other visible injuries (as reflected in the post-incident photographs and medical reports); o on cross, after being referred back to his “understanding from talking to RB that she had had a physical altercation with C”, the accused interrupted to say “ all three of them ” i.e. each of RB, the complainant and the complainant’s sister had (per the accused) had such an altercation.

But nothing in the evidence supports this leap by the accused. He did not say, for instance, that, on further reflection, he recalled that, in RB’s initial reference to a “conflict with C”, she had actually clarified that it was a physical altercation and that the complainant had been involved and that she (the complainant) had been struck consistent with all-over-the-body bruising.

Instead, he provided zero support for these implicit assertions; o it was only on re-direct , when his counsel returned to the subject of the complainant being bruised and asked “what can you speak to whether [she was] bruised or not?”, that he said “when [she was] naked in my bed, she had bruises on her body and said that she got it [or them] from C in a fight.” This is dubious, coming this late in his testimony.

In any case, he said nothing about what bruises he saw and where on the complainant’s body or anything else to support the complainant appearing to him, while “naked in [his] bed”, in the condition in which she was photographed after the incident i.e. with grievous bruising all over her breasts, shoulders, lower back and elsewhere; o further, even if there were a “conflict” that turned out to be a “physical altercation” between C and the three women (or at least RB and the complainant), or even a “fight” as apparently stated by the complainant, no details were provided by anyone that could support the complainant having sustained all of her eventually reported injuries, including genital and anal injuries , in that encounter; o plus, the accused’s account of the complainant telling him about such a fight is at odds with his own testimony of having “asked her a few questions about it” earlier that evening and her responding that it was “ none of [his] business ”; o no evidence was provided by C, RB, the complainant’s sister or anyone else about the actual occurrence of a “conflict” with C or, if one occurred, what it involved and who it involved (or even of attempts to obtain testimony from any of them); and o summarizing here: on the thin reed of RB apparently telling him about a “conflict” with C and him apparently seeing a bruise on

RB’s face , the accused tried, and (I find) failed, to construct an elaborate set piece featuring the complainant being severely beaten by C and appearing as such, in the accused’s bed, naked, without him apparently asking her, on seeing these injuries, what happened to her or mentioning anything in this trial about pre-existing bruising or other visible injuries on the complainant until reminded on re-direct about bruises; • inconsistent reasons for “no memory” account during police interview : the accused offered, per the Crown, three different reasons for his largely “cannot remember anything” stance during the police interview: o the police questions (or some of them) were an invasion of his privacy ; o he did not trust the RCMP in light of negative interactions with them earlier in his life; and o he did not in fact remember anything (or very much) at that time but, over the last ten months, his memory actually improved , yielding the vivid recollections now; • he actually provided four more reasons : o he was tired, having been up for eight or nine days straight, and just wanted to get back to sleep ; o he had a headache ; o he wanted to wait until he got a lawyer ; and o he did not want to be bothered ; • the fundamental problem here is not that he said he could not remember anything (or much) or that he gave multiple reasons for doing so.

It is the inconsistency between the memory actually improved (“I have now had ten months to think about [things] … my memory came back [on] a lot of things”) and the other reasons . As the Crown argued, his other reasons are not compatible with a “no memory” foundation.

On the other hand, if he had memory of the key events and decided not to describe them in his statement for one or more of the other reasons, his “no memory” account is exposed as false; • inconsistent evidence of not sleeping : the accused testified in direct that, as of the day of the incident, he “[had been] up for eight days .” Asked why, he said “because I have a hard time sleeping … it’s the way I am … plus smoking crack keeps you up ….” Yet, earlier in direct, while testifying as to an encounter with the complainant, her sister and RB in the late morning of March 15 th (“10:30 or 11:00 am”), he said (in response to a reported question from them (“Have you seen C?”)), he answered: “I said I did not see him … I just woke up .” In re-direct, he said he had been “ coming off a nine-day binge .” However, during cross, when asked how he had spent the day of March 15, he said (in part), about the afternoon: “Relaxed and watched a movie … and had a snooze .” In other words (and per his own words), he had in fact been sleeping (from some point) until late in the morning on March 15 th and had a nap (“snooze”) later that afternoon; and • unconvincing explanation of whether he had money on hand : in direct, the accused testified that, after an early-evening visit to the casino (“usually go see a couple of friends, have a beer or play machines … was there [for] an hour … ”), he went home again, explaining first that this was “because of the cold weather, I don’t like to stand there [outside the casino] too much …”, then adding “ when you have no more money, then you can’t do much [at the casino]. ” In cross, after being asked about later spending various amounts on cabs and liquor and challenged about his earlier “no more money” statement (which the Crown paraphrased as him having “ run out of money ”), he said that he actually had money on leaving the casino and effectively that, if there had been any kind of “running out”, it was him literally running out of the casino .

This explanation made no sense, with nothing explicit or implicit in his initial testimony about the speed of his movements, let alone anything about the manner of his exit from the casino. His initial reference was obviously about having no more money. (I note that the accused testified to going home again after that point i.e. before coming back again and eventually meeting the complainant around the casino i.e. he may have picked up more money at home. But he said nothing about that).

Credibility findings [ 103 ] I find that the complainant was telling the truth about the core aspects i.e. that she was uninjured before going to his apartment, that at some point during that visit the accused grabbed her and, despite her resistance and screaming, inserted his entire hand into her vagina and into her anus, that doing so resulted in cuts, tears, and bleeding, that he punched her repeatedly, that at points he prevented her from getting away from him, and that he threatened to shoot her and to kill her. [ 104 ] Here are my reasons: • the complainant’s testimony about the physical sensations experienced by her during the attacks was vivid, detailed, and

mimicking-gesture-accompanied e.g. “I felt like a ragdoll … every time he hit me I would cover my face … he was hurting me [by putting his entire hand in my vagina] -- it was like giving birth, I swear to God … I would scream, and he would punch me out … really hard … ‘stop screaming!’ … I screamed again … more hitting ...

I kind of blacked out a few times because of the pain – so bad and severe … he was trying to bite me … to bite my nipples off … I kept covering them … he kept hitting me … every time I fought back he punched me out.” She gave similarly vivid and gesture-accompanied testimony about her reaction to the accused’s statements that he was going to “tie [her] up, get her kids, and make her watch” i.e. “like a switch went off in my head … [I thought] ‘I have to get the fuck out of here’ … I almost ripped his balls off”, causing him to release her and allowing her to escape the apartment; Her distress when describing the actual attack was visible (crying, shaking, bent over) and congruent with her statements such as “it’s like it just happened a few hours ago … I can still feel the pain of what he did to me”; • her account of the accused’s conduct is borne out in her physical injuries and the resulting flow of blood down her legs witnessed by the neighbouring tenant and bruising and blood witnessed by the attending police officers and personnel at the hospital (the injuries as reflected in medical records that became an exhibit at the trial and in the Agreed Statement of Facts tendered at the start of the trial); • her account of the effect of the accused’s “I will shoot you” and “I will kill you” threats – extreme fear and trauma – is borne out in her emotional state as seen by the neighbouring tenant and by the police witnesses; • concerning the “seven-hour gap” asserted by the defence, I reject that reading of the evidence.

Even with differing accounts from the complainant about how long she was at the apartment before the testified-to attack began (“ten minutes or less” versus “an hour, or maybe only 30 minutes”), she testified in direct that the attack – in particular, the segment while the accused had put her on his lap – “felt like [it went on] forever … like it was never going to stop ….” She did not otherwise offer a “duration of attack” estimate in direct.

In cross, she was not asked about the duration of the attack , with all of the “time” attention being focused on how long the complainant was at the apartment before the attack began. I do not perceive an unexplained gap here , or at least one that raises any concerns about the core elements of the complainant’s version of events.

Whether the attack began within the opening hour of the visit and the continued through the night, or whether it commenced later into the night, or even close to the complainant’s early-morning exit from the suite does not, in the end, matter; • acknowledging that the complainant gave differing evidence on the sequencing of events (e.g. when she went for her shoes), I find that she provided adequate explanations for the apparent contradictions (“going for shoes” aspect was not at the very start --- “toilet aspect” was the actual start of the attack – “shoe aspect” happened mid-attack).

In any case, the precise sequencing does not matter here, given the accepted evidence of an attack containing the core elements described by the complainant, especially given its terrifying and obviously distressing nature. (Possible confusion over the precise sequencing of events is understandable); • concerning conflicting evidence from the complainant and the accused about when they first met, who else was present when they met, whether they travelled to a liquor store together before going to his apartment, whether they consumed crack cocaine together, and whether they had consensual sex as described by the accused, I find that I do not have to resolve these conflicts .

Some of these elements (at least the first four examples) are peripheral here: even if I found that the accused was actually right about them, that would not detract from the credibility of the complainant’s account of the core elements of the attack described by her. I note here the complainant’s evidence, repeated at least twice, that she “needed to get back to her sister”, who was apparently waiting for her outside, back at the casino.

If some or all of the pre-attack events described by the accused actually occurred (and again I am making no findings here), the complainant may understandably have been reticent to acknowledge that she had left her sister waiting for her, out in the cold, when they were supposed to travel together back to where they were staying. As for the accused’s account of consensual sex (if not a peripheral matter), any such interaction does not bear on the inherent credibility of the complainant’s account of the attack (borne out in her physical injuries).

Even if they had had consensual sex as described by the accused, it cannot explain the complainant’s injuries, including the genital and anal cuts and tears, accompanied by extensive bleeding, and the bruising. Here I note the accused’s evidence that his “fingernails” may have accidentally cut the complainant during the digital sex he described.

However, he gave no evidence of the state of his fingernails (long versus short; even versus jagged, etc.) or of the precise nature and extent of the “digital sex” or of noticing any blood during or after such sex, or otherwise provide evidence that might explain, or help explain, how the described sex caused or may have caused, accidentally, the genital and anal injuries here and the associated bleeding. Not to mention all-over-body bruising.

I also note his evidence that, after the sex as described by him, the complainant was (effectively) in a party mood (singing in pretend- karaoke-style, asking him if he was going to keep on “partying”) i.e. the complainant had apparently not been traumatized in any way or suffered any (or any material) injuries.

Further, any consent by the complainant to contact as described by the accused would not extend to the injury-causing contact described by the complainant. (The defence did not argue that such consent existed here or even that it could have existed, with its position here being that no attack as described by the complainant occurred at all.) Whether any or all of these “pre-events” occurred is ultimately irrelevant to resolving the issues here. • despite conflicting or uncertain evidence about what intoxicants the complainant may have consumed on the day in question, she was not shaken on her evidence that, when the key events occurred, she “was not even high or nothing … was more stoned on weed than the alcohol … I was pretty much like sober” and that “stoned on weed” would “make [her] eyes [eyelids] go low” but have no other impact (including on her memory); • nothing in the complainant’s testimony of the core events i.e. the attack as she described it was illogical, impossible, far-fetched, preposterous, or nonsensical; and • I reject the accused’s testimony of the key events, for these reasons: o his transparently feeble attempt to explain the complainant’s bruising as pre-existing (as examined above).

I find that no “fight with

C” happened or (if one did) the complainant was not involved in it or (if she were) she was not injured in it or (if she had been) those injuries are not the injuries perceived by the neighbouring tenant, the police witnesses or hospital personnel or (if they were part) they were not all of those injuries; o his inconsistent explanations for providing minimal information in his statement to police (as explained above) i.e. as a marker of general untrustworthiness; o same for his inconsistent explanations of whether he had slept or not in the lead-up to the incident and whether he had run out of money (also as explained above); and o the convenience of his “passed out around midnight, did not wake until police arrived” evidence.

I find that, whenever the attack started, it finished in the vicinity of 7 a.m. on March 16, 2020 i.e. with the complainant’s escape from the apartment and door-pounding i.e. I find that the accused was indeed awake shortly before the police arrived (if not earlier), perpetrating the described attack. His evidence was effectively a blanket denial of the incident (friendly visit from approximately 10:30 pm until 11:30 pm or 12 midnight, followed by him passing out until being woken up by police).

Effectively, the accused testifies that the complainant was in sound physical shape (even if restless – “bugs all over me”) when he fell asleep. (In answer to how the complainant’s blood came to be on the carpet in his apartment, he said he had “no idea”, then offered his “perhaps cuts via fingernails” theory. He said that the complainant was walking all around his apartment and even out of his unit, into the apartment at large.

I have explained above why I reject that theory as the cause of the complainant’s reported and observed-by-many injuries.) Via the “complainant effectively in good shape when I fell asleep” testimony, the accused effectively argues that someone else caused the complainant’s injuries. The evidence showed that no one else was at the accused’s apartment when the complainant and the accused arrived there that evening. No evidence showed that anyone joined them at any point before the complainant’s escape from the unit. No evidence reflected blood from the complainant anywhere outside the apartment unit.

Even if the complainant left the apartment during any “restless” state, no evidence contradicted her account of having been in the apartment unit for the attack and her escape from that unit. No evidence showed the involvement of any other person in the events in question, until the complainant came face-to-face with the neighbouring tenant after her escape. [ 105 ] I also reject the defence’s arguments on identification: the complainant’s description of her assailant matched the person who opened the door to unit 010 (according to Cst.

Longmead); the complainant had spent many hours in the company of the accused (from roughly 10 pm on March 15 th until roughly 7 am on March 16); she identified him in court, as did Cst. Longmead; Cst. Longmead satisfied me with his “apartment geography” testimony that unit 010 was where the complainant had come from; 010 was the accused’s apartment; and the complainant’s blood was found in that apartment. F. Conclusion [ 106 ] For the reasons outlined, I reject the accused’s testimony of the critical events. I accept the complainant’s testimony of those events.

Nothing in the accused’s evidence causes me to have any reasonable doubt about the complainant’s testimony of the critical events.

Considering all of the evidence in this case, I am satisfied beyond a reasonable doubt that the accused attacked the complainant as she described, all without her consent, and that he intended to so attack her and that he was aware that she was not consenting to the injury-causing treatment described by her and to repeated punching, that he restrained her from leaving his apartment, and that he threatened to shoot her and to kill her. [ 107 ] Accordingly, I find the accused guilty of sexual assault causing bodily harm, confining without lawful authority, and uttering a threat, all to the complainant, in Fort McMurray, Alberta on March 15 or 16 (or both), 2020.

Heard on the 11 th to the 13 th day of January, 2021. Dated at the City of Ft. McMurray, Alberta this 25 th day of January, 2021. (Synopsis of judgment delivered orally via WEBEX on the 20 th day of January, 2021.)

M. J. Lema J.C.Q.B.A. Appearances: Morgen Patterson Crown Prosecutors' Office for the Crown Brent Corbin Corbin Law for the Accused