R. v. M.D., 2015 ONCJ 749

Information No. 2811 998 14 14376 CITATION: R. v. M.D. , 2015 ONCJ 749 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. M. D. R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE M. FELIX on December 4, 2015 at OSHAWA, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO s. 486.4 BY ORDER OF JUSTICE D.J. HALIKOWSKI on January 15, 2015. ANY PUBLICATION CONTRARY TO s. 486.4 IS A CRIMINAL OFFENCE. APPEARANCES : G. Hendry Counsel for the Crown S. Herbert Counsel for M.D. FRIDAY, DECEMBER 4, 2015 R E A S O N S F O R J U D G M E N T FELIX , J. (Orally):

M.D. is charged that on or about the 29 th of September in 2014 he committed a sexual assault on A.B., contrary to s. 271 of the Criminal Code of Canada . Much of the narrative background is not in dispute and as such a brief outline will suffice. The backdrop to these events is that A.B. and the defendant were friends for several years during a time period when A.B. and her husband lived in the same apartment building as the defendant. A.B. would visit and socialize with the defendant during this time period. It appears that this may not have been with her husband’s approval.

On the day in question the defendant bumped into A.B. downtown by happenstance. This was approximately one year after A.B. and her husband had moved out of the apartment building. The defendant advised A.B. that there was important mail addressed to her. He had secured this mail for her because it had been left on top of the mailboxes in the apartment building and was accessible to other residents. It was evident to the defendant that the mail was brown government envelopes, it was agreed that A.B. would attend later on that day to obtain this mail.

A.B. attended the apartment building and encountered the defendant’s teenage son T.D. outside of the apartment building. He escorted her upstairs to his father’s apartment unit. When they arrived the defendant was there with another neighbour socializing. The complainant stayed in the apartment and socialized with the defendant. Everyone consumed alcohol. Ultimately, A.B. alleges that the defendant sexually assaulted her in his bedroom. The Allegation of Sexual Assault The complainant testified that while in the bedroom the defendant was in an intoxicated state. She was lying down on the bed as was the defendant.

They were socializing and watching television. Without warning he grabbed her, used his body weight to secure her in a bear hug position on the bed and he grabbed her breast and vagina area. His hand made contact with her breast underneath her bra. His hand made contact with her vagina under her undergarments. He said to her “I am not raping you - I am not raping you”. She described feeling helpless and violated by this action. She did not consent to this contact. She testified that she asked him politely to stop and that the sexual assault ended when he passed out and she was able to leave.

The defendant testified in this trial. In clear and absolute terms he indicated the sexual assault simply did not occur. This case was resolved based on the application of the criminal burden of proof and the principles in R. v. W.(D.). After consideration of those principles, I am left in a state of doubt. Consequently, the defendant is acquitted. These are my reasons for acquitting him. Analysis My evaluation of the evidence in this case rests on a number of issues culminating in the test outlined in R. v. W.(D.). 1 .

The Background of the Relationship between the Defendant and the Complainant In direct examination the complainant explained that she had a poor relationship with the defendant. There were also conflicts involving her husband. During cross-examination I find that the complainant acknowledged that during the many years she resided in the

apartment she had frequent contact with the defendant. She acknowledged that the relationship was a friendship. The defendant says that the complainant came over several times a week when she resided in the apartment. Because of problems in her relationship with her husband she leaned on him as a friend. They confided personal things to each other and were mutually supportive. He did favours for her. The one area of concern was that her husband did not approve and at times this would cause conflict. 2 .

Level of Intoxication on the Night in Question In my respectful view, the evidence is clear that the defendant was intoxicated by the consumption of alcohol, notwithstanding his assertion that he was fine. He consumed several beers and on a walk to the store to obtain cigarettes with the complainant he had to be supported and stumbled on a curb. I find as well that the complainant consumed some alcohol while socializing with the defendant in his apartment, but there is nothing to suggest that she was intoxicated. 3 .

The Presence of the Complainant in the Defendant’s Bedroom It is important to note that the complainant’s attendance in the defendant’s bedroom should not be perceived in any particular manner. The defendant’s television and stereo were located in his bedroom. It was his custom to entertain people in the bedroom. That the complainant was lying down on his bed, proximate or close to him should not be perceived in any particular way because of these circumstances. 4 . Accidental Touching of the Complainant’s Breast and Cigarette Burns Two curious and unusual events occurred that night.

The defendant touched the complainant’s breast. He also apparently burned her with a cigarette. The complainant testified that when she arrived upstairs, courtesy of the escort from T.D., there was another neighbour with the defendant. After the neighbour left, the complainant described the defendant trying to hug her which she resisted. She also described, albeit without much detail, that he touched her breast. She was of the view that this touching was accidental, she did not get upset. He apologized for touching her. She told him not to let it happen again.

The defendant testified that this was the only physical contact with the complainant. It occurred in the living room when they were sitting on the couch. He described her in conversation relating some personal challenges and he went to give her a friendly hug. His left hand grazed her right breast. It was an accident. He said they both acknowledged this fact and that was the end of it. The complainant testified that the defendant burned her twice with a cigarette, although she was of the view that this was incidental to his intoxication rather than intentional conduct.

The defendant denied burning the complainant with a cigarette. There was no objective evidence presented in support of the cigarette burns, for example, photographs. 5 . The Mail and the Walk to the Corner Store The complainant testified that her purpose in attending the apartment building and ultimately the apartment belonging to the defendant

was to secure important mail. A photocopy of the mail has been marked as an exhibit. Objectively speaking, I am satisfied that the mail existed and appeared to contain material from the government. The complainant’s position is that the defendant unjustly held on to her mail or would not provide the mail to her and this was part of the explanation for her remaining in the apartment for the time period that she did. The objective evidence does not reasonably support this position. There is no evidence of anyone requiring her to remain in the apartment.

The defendant testified that he gave her the mail shortly after she arrived and that she put the mail in her sweater pocket. T.D. testified that he offered to go upstairs and obtain the mail for the complainant when she interacted with him outside of the apartment building. She attended voluntarily with him to go upstairs and get the mail. According to T.D., the mail was given to her upon her arrival in the apartment or shortly thereafter. The complainant’s position is that the defendant held on to the mail and did not give it to her when she attended his apartment.

She described the mail as being on a table in his bedroom. At one point in her evidence she described being a virtual prisoner in the apartment and took the position that she could not leave without the mail. When I consider the evidence of the complainant on this point I must also recognize that she was not clear about when in fact she received the mail. For example, she did not deny that it was possible that she received the mail before going for a walk with the defendant to the corner store.

It is clear on the evidence that she and the defendant went for a walk to the corner store and then returned to the apartment. It was shortly after the walk to the corner store that the sexual assault occurred, on her evidence. The reliability of her recall is partly compromised because of this issue. This is important, because if she had the mail soon after her entry into the unit it impacts her testimony that she was essentially a prisoner in the apartment. 6 .

The Cessation of the Sexual Assault The complainant testified that the sexual assault ended with the defendant passing out or falling asleep on the bed in his room. She was then able to leave. The defendant testified that the complainant left without incident. She put on her sweater. She had her mail. He escorted her to the door. He says they exchanged pleasantries and the complainant said good bye to him, good bye to his son, T.D., and they mutually recognized that in the future she may return for a visit if she was in the area.

T.D. testified and said that the complainant and the defendant were in the living room for a period of time before the complainant left. The complainant said good bye to the defendant and said good bye to him, T.D. His father escorted her to the apartment door and the complainant indicated an intention to visit again. 7 . Credibility of the Defendant These events came to the attention of the defendant approximately one month after the visit by the complainant.

The defendant testified that he was surprised by the allegations and thought that the complaint regarding sexual assault related to the accidental touching of the complainant’s breast when they hugged. To be frank, I have disabused my mind of certain aspects of the demeanor of the defendant. At times he testified in an abrupt, argumentative and impatient manner. He did not come across well as a witness in these circumstances.

That being said, a criminal trial is not a credibility contest or a popularity contest. The defendant provided a detailed, specific account of his conduct that night. This is not a case where he simply provided a blanket denial of the event. The events recounted by the complainant and the defendant are similar, save for the allegation of sexual assault. The defendant is corroborated to some degree by the evidence of his son T.D.

While I cautiously approached his evidence, because he is an interested party in these proceedings, I did not find any basis to conclude that T.D.’s evidence was compromised to a great degree. He did not hear any signs of a conflict that night, he corroborates the defendant’s account regarding the provision of the mail, he corroborates the defendant’s account regarding the cessation of the sexual assault and defendant escorting the complainant to the door in the circumstances therein. 8 . Credibility of the Complainant The complainant testified in a clear, simple and straightforward manner.

There is no doubt that on her description of the events the defendant committed the offence of sexual assault. The complainant testified that she had suffered a brain injury in childhood earlier in her life and this caused her to have some difficulty with dates and times. She also disclosed some mental health issues. She was a pleasant, cooperative witness. She answered questions in a simple and direct manner. There were a few overarching influences from that night. Certainly, there is a tension between her association with the defendant for many years and the disapproval of her husband.

But I do not find that she fabricated the events because of the risk of disapproval from her husband or any subjective guilt she possessed or expressed for having attended and having remained in the apartment. I also find that her brain injury or medical situation did not impact her ability to tell the Court specifically what actions the defendant performed. There was an issue concerning her prior statement recorded on the 911 call to the police operator. The cross-examination sought to show that she reported bruising on her arm and that she did not provide specifics of the sexual assault.

I find that the 911 call was a charged atmosphere. The complainant’s husband can be heard in the background. The complainant did in fact say that the defendant bruised her arm and she adopted this in court. She also said though that he was touching her in places she did not like. There was no objective documentation of the bruising complained of and frankly, the complainant did not really recall the bruising at the time of trial. Conclusion Credibility cases present a challenge for any trial court.

I have carefully considered the evidence in this case and I accept the evidence of the complainant and I have found her to be a credible witness on the core allegation of the sexual assault. It is true that her reliability as a witness is somewhat impacted by her subjective characteristics and my assessment of other evidence. This is a case where I had to carefully instruct myself that acceptance of the evidence of a credible complainant does not mean that the onus shifts to the defendant or that a criminal conviction is inevitable.

That I prefer the evidence of the complainant cannot ground a criminal conviction on these facts. The Supreme Court of Canada in R. v. W.(D.) directed Trial Judges to consider the following: 1. First, if you believe the evidence of the accused, obviously you must acquit. I can say that the defendant provided a detailed and firm account of his actions that night. This was not a case where he simply denied the allegations and had no other detail or context or evidence to provide. There is no basis to categorically reject his evidence.

That being said, I tend not to believe everything that he said and I prefer the evidence of the complainant.

2. The second instruction in R. v. W.(D.) is, if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit. To a narrow degree, the detailed account provided by the defendant contributes to my overall reasonable doubt even thought I do not totally believe his recount of the events. 3. The third instruction in R. v. W.(D.) is, 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.

Frankly, my decision falls more to consideration of the second and third steps in the W.D. analysis. I accept the assertion by the complainant that the defendant sexually assaulted her that night. I accept as well the principle of law cited by the Crown Attorney that there are cases where the evidence of the complainant alone may ground a conviction. This is not one of those cases.

The doubt in my mind is based on a combination of the four elements I have outlined above: 1) the evidence of the defendant to the degree I accept it; 2) the evidence of his son, T.D., generally; 3) the “retention of mail” issue; and 4) the evidence concerning the cessation of the sexual assault. While I have a strong belief that the defendant committed the offence, the combination of all of these factors requires that I resolve any doubt in my mind in his favour. M.D. is consequently acquitted of the criminal allegations.