R. v. Oghieakhe, 2019 MBPC 31

CITATION: R. v. Oghieakhe , 2019 MBPC 31 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) K. Sweet and V. Hebert, for the Crown - and - ) ) Emmanuel Oghieakhe ) ) S. Soldier, for the Accused ) ) Judgment delivered: ) May 27, 2019 CORRIN, P.J. OVERVIEW OF EVIDENCE RECEIVED AT TRIAL [ 1 ] The principal parties agree sexual intercourse occurred - they differ with respect to the issue of consent. [ 2 ] The complainant testified she’d known accused since November 2016.

The accused testified they had met in January 2017. [ 3 ] Both parties acknowledged that they had become friends and were engaging in fairly constant social media contact after meeting.

The accused testified that their relationship had become flirtatious - particularly in reference to wanting to be together emotionally and physically notwithstanding that the complainant knew he had a girlfriend. [ 4 ] Both parties agree that they had personally been together on only one other occasion, when the complainant had a job interview and asked the accused to drive her there in her vehicle. [ 5 ] The complainant testified that she had been communicating with the accused by Snapchat on the evening of the incident.

That she had been at a downtown bar with friends and they had parted company around 1:00 a.m. That she had phoned the accused while driving home to her St. Vital residence and he had invited her to come over to his apartment on Hargrave, in the downtown area. The complainant, although then near her residence, testified that she had turned and driven back downtown. The accused testified that the complainant had been texting him from the bar, complaining that her friends had left her alone at the bar and asked to come over.

That he had suggested she take a taxi to his apartment, because he was concerned about her driving in a possibly impaired state. [ 6 ] Both parties agreed that the complainant had used a bathroom subsequent to her arrival at the accused’s apartment. That afterwards they were together in his bedroom and that they had sat on his bed and chatted. The accused said that soon after this she put her head on his shoulder and after a while they looked into each other’s eyes and began to embrace and kiss. The complainant’s version was different.

She told court that after chatting for a while the accused had stood up and begun to kiss her and then proceeded to rip off her jeans and underpants, i.e. her lower body clothing. That he’d then undone the buttons or snaps on her body suit and proceeded to pour baby oil on her stomach and genital area and then proceeded to have forcible unprotected vaginal intercourse with her, disregarding her shouts to stop.

That he had subsequently ejaculated on her stomach and after doing so had given her toilet paper to wipe off his ejaculate. [ 7 ] The accused testified that he had tried to remove her bodysuit when they embraced and kissed, but had been unable to determine how to do so because it was a one piece garment without obvious buttons or snaps. According to the accused the complainant had assisted his purpose by standing up and removing both her top and her jeans. He testified that they had then both removed all their clothing, including undergarments, and continued with passionate foreplay.

The accused told court he had employed the baby oil only for such a purpose, not lubrication, that he had rubbed it only over her upper body and not in her vaginal area in order to further arouse her. The accused acknowledged that he had ejaculated on the complainant’s stomach and that afterwards he had cleaned his semen off with toilet paper. Their testimony differed slightly on this last part as they didn’t agree on who cleaned the mess. As previously mentioned, the complainant said she did this, not the accused. [ 8 ] The parties’ testimony also differed as to what happened next.

According to the accused there had been a bit of a contretemps after sexual intercourse because he had expressed remorse respecting infidelity in reference to his girlfriend and that this situation had caused him to ask the complainant if she wanted to leave - something she then confirmed. According to him, she had then dressed and asked him to accompany her to the elevator - something he related as having refused to do. [ 9 ] The complainant told court that after cleaning herself up she had immediately put her clothes back on and ran out of the apt. and driven home.

That the next day, after work, she had told her ex-boyfriend, who was still sharing an apt. with her, about the incident and they and several of his friends had driven over to the accused’s residence to peacefully confront the accused about the assault. According to the complainant she had texted the accused to come downstairs and outside after the group had arrived at the accused’s apartment. building. That her former boyfriend had then confronted the accused, but only verbally, not physically.

The former boyfriend told court that he hadn’t struck the accused and that their only physical contact had occurred when he grabbed the accused’s tee shirt.

That he’d privately planned to beat him up but desisted when the complainant urged him not to do so. According to the ex-boyfriend theaccused had voluntarily fallen to his knees in front of the complainant and himself and begged for forgiveness in reference to the sexualassault. The accused on the other hand described himself as the victim of a violent assault by the ex-boyfriend and his male friends,stating that he’d received a text from the complainant advising that she was going to call the police if he didn’t come downstairs to meetwith her.

That he’d complied and then been punched and kicked after being dragged out of the apt. building’s entrance by his shirt by theex-boyfriend. According to the accused the group had assaulted him for around five minutes while the complainant repeatedly shouted“You raped me - Say it!” The accused testified that he feared they would come back and beat him again if he didn’t comply, so he saidhe’d raped her in order to preserve himself from yet further beating.

That he had begged them for mercy. [10] The complainant also told court that she had sent and received a number of texts via Snapchat not long after the confrontation atthe accused’s apartment. building. The texts were filed by the Crown as an exhibit in the proceedings. Some of these texts were seemingadmissions of wrong doing by the accused. For instance, the complainant texts “Just admit it, you were wrong.

You did something that aguy should never do to a girl” and the accused responds “I’m so sorry and my whole entire life is in debt to you.” She then replies that heshould “admit what you did” and he responds “I agree.” She then asks “You agree what” and he replies “That it happened. But I promiseit wasn’t forced.” Later the accused texts “I’m sorry I hurt you” and also “I want to deeply and sincerely apologize for what you feelhappened between us.” [11] The accused afforded an explanation for his seemingly self-incriminating texts.

According to him he was apologizing for havinginsensitively expressed regret about his infidelity after their consensual intimacy - not for sexually assaulting the complainant. Whenasked questions respecting the seemingly implausible context of such explanation - i.e. because he’d also texted that he would doanything and was begging with his life, the accused said that he was in an intensely fearful and emotional state because of the previousday’s assault.

He also alleged that the Snapchat texts were not intact, that some of the exchanged messages had been deleted, negativelyaffecting the over-all context of the exchange between himself and the complainant. [12] The Crown also proffered expert evidence that clothes that had been worn by the complainant had presented fresh tears whenexamined by Christy Sanderson, a civilian member of the Vancouver based RCMP National Forensic Laboratory Services.

Ms.Sanderson, who the Court qualified as an expert in the field of textile damage assessment, found “fresh tears” in reference to what wasdescribed as a thong style underwear garment as well as a fresh seam separation in reference to same. She did not identify all the tears sheexamined with respect to such garment as being recent.

The underwear tears she identified as being fresh were a 7 cm tear on the frontpanel and a 3-4 cm tear on the back panel near the top right elasticized area. [13] She also identified a number of “fresh tears” in reference to a pair of jeans that had been worn by the complainant on the night ofthe incident. Again, she found other tears not to be fresh and testified that they were attributable to deliberate damage induced during themanufacturing process.

This certainly was consistent with the style of the jeans as their appearance suggested that the manufacturerdeliberately distressed the jeans as part of the design process. [14] The Crown also called the complainant’s former boyfriend, L. Kamara (L.K.). This witness confirmed that he had been livingwith the complainant on the date of the incident. He also described himself as being her boyfriend at such time; he went on to explainthat they had subsequently broken up, during the following month - April 2017. He blamed the complainant for their break-up. (See p.107 of the trial transcript).

L.K.’s evidence did not align with the complainant’s on this point. As previously mentioned, she had earlier told court that although L.K. lived with her on March 27th, the incident date, she was no longer in an intimate relationship with him atsuch time (see lines 1-37, page 37 of the trial transcript). LEGAL ANALYTICAL CONTEXT [15] The legal analysis to be conducted by the court in assessing the evidence in this trial is that prescribed by the Supreme Court ofCanada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. [16] The analytical framework set out in W.(D.) is as follows: Firstly, if the court believes the evidence of the accused, it must acquit; Secondly, even if the court does not believe the testimony of theaccused but is left in reasonable doubt by it, it must acquit; Thirdly, the last step - even if not left in doubt by the evidence of the accused,it still must ask itself whether it is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of theevidence which it does accept. [17] The Court observes that credibility and reliability involve different considerations.

That credibility relates to the veracity ortruthfulness of a witness whereas reliability concerns the accuracy of a witness’s testimony (see R. v. H.C., 2009 ONCA 41 ,2009 ONCA, para. 41 and R. v. Perrone, 2014 MBCA 74 at paras. 25-27 and R. v. Houle, 2019 MBCA 17 at para. 8. When assessingcredibility and reliability of testimony herein, I have similarly sought to take into account the strengths and weaknesses whichcharacterize the evidence offered in this case.

I also want to point out that in coming to my conclusions I was aware that as trier of fact Icould believe all of the evidence given by a witness, part of that evidence, or none of it. (see R. v. Sanderson, 2003 MBCA 109, 177Man.R. (2d) 260). The Court further observes that it is aware that it must deal with the W.(D.) analysis in the manner approved by ourCourt of Appeal in R. v. Menow, 2013 MBCA 72 and the Supreme Court in R. v. Dinardo,

(2008) SCC 24 (at para. 23). [18] I now turn to the first stage of the W.(D.) analysis. At the outset, the Court expressly agrees with Defence that its analysis mustnot shift the onus to an accused in reference to his failure to account for the complainant’s allegations. That an accused person does notbear the burden of proving a complainant has a motive to lie. [19] The Crown submits that the court should reject the accused’s account in its entirety for several reasons: [20] The first of same was in respect to the accused’s reputed evasiveness and reluctance to provide detail when cross examined.

TheCrown reminded the Court of the accused’s failure to answer seemingly straightforward questions, noting that he replied “what do youneed?” or “I don’t understand” when confronted with some easily understandable questions. The Court agrees with the Crown that a few

of these situations appeared to stem from a reluctance to provide information to the Court rather than a genuine difficulty comprehending the questions. The Court observes that the accused is a seemingly fully English-fluent and very well educated person with a post- secondary Canadian University degree and that very few of the Crown’s contested questions were presented in a non-user-friendly or convoluted manner i.e. in a manner that was difficult for a person of even average intelligence to understand.

The Court observes that the accused presented as a person who is probably of above average intelligence, also that the accused never once suggested that he was experiencing any trouble understanding questions due to a linguistic handicap.

For these reasons the Court agrees with the Crown that the accused did sometimes present as being evasive and/or generally reluctant to engage in cross-examination. [ 21 ] The Crown’s second concern was of much more significance to the Court as it related to inconsistencies that it perceived as between the accused’s direct and cross-examination testimony and also with respect to his police statement. Some examples follow: - The accused testified that he’d been punched by the boyfriend, Mr. Kamara, but did not mention this to police investigators during his interview.

The Crown also reminded the Court that the accused, when discussing this post-incident confrontation with police, had told them that his shirt had been ripped to pieces, a significantly different description than had been proffered to the court, as in court he described only a single tear to the shirt’s frontal area. - The Crown also reminded the Court that the accused had provided different versions of the sexual engagement between himself and the complainant.

That he hadn’t even mentioned an alleged request that he perform an oral sex act, presumably cunilingus, in his direct examination but had told police that the complainant had asked him to perform such

an act after they had finished intercourse. The court further observes that even though the complainant didn’t provide any evidence respecting such a request during her direct examination she was not questioned about same on cross-examination. [ 22 ] The court feels that the difference between the two incident descriptions i.e. the one given by the accused on direct examination and the one he provided on cross-examination suggest an internal inconsistency which is more likely related to a lack of credibility than a failure of memory.

Of particular significance in such respect is that the accused testified on direct examination that he had, almost immediately after intercourse, expressed remorse about being unfaithful to his girlfriend - making no reference to the complainant’s oral sex request which he claimed to have rejected. The Court is left to conjecture why the accused would fail to remember such a seemingly salient detail, one that certainly would be supportive of consensual, not forced sex, when he testified on direct.

The Court, facing such a circumstance, wonders aloud whether the reason relates to a credibility issue or simply a poor memory. Given the abundant detail provided to the court on direct respecting foreplay, the intercourse and the parties post-intercourse interaction, it seems more than passing strange that the accused would completely forget to mention the complainant’s alleged request for post-coital oral sex until confronted with his police statement on cross-examination.

The Court agrees with the Crown that this situation presents as an inconsistency of sorts, internal to the accused’s testimony. [ 23 ] In a similar vein the accused, on direct examination, related that he had soon after intercourse, expressed remorse about cheating on his girlfriend but hadn’t mentioned this when providing his version of events to police. Indeed, he admitted telling police that it was the complainant who had experienced a seeming change of heart, in the nature of a negative mood shift, after he refused to perform oral sex.

The Court perceives this inconsistency as significant as it makes no sense that the accused would not tell the police the same thing as he told the court. This is particularly so as the court version seems far more plausible and supportive of the accused’s innocence than the version provided to police not long after the complaint. [ 24 ] And after all, given the circumstances and the accused’s testimony respecting a mutual on-going prior flirtation, why would the complainant have had such a dramatic mood shift leading to her precipitous departure?

The Court agrees with the Crown that this unexplained inconsistency is troubling to say the least. That once again, it suggests that the accused prevaricated. If not to the court, then almost certainly to police investigators. [ 25 ] For the forgoing reasons the Court does not believe the evidence of the accused per se. As such the Court declines to acquit the accused at the initial W.(D.) stage.

I will now proceed to consider whether his evidence gives rise to a reasonable doubt at the secondary level of examination. [ 26 ] The most significant concern at this stage is the accused’s self-volunteered explanation for the complainant’s assault allegation basically, that she was devastated by his post-coital expression of continuing loyalty to his long-term girlfriend - the remorseful “Oh God, my girlfriend” remark.

The accused related that he discerned that she’d become angry after this remark, saying “I figured it was about my girlfriend.” The Court notes that neither the complainant or Inspector Blaine, the WPS investigator who took a video statement from the accused or the statement itself provided any evidence on this point. On cross-examination the accused related that he had mentioned the subject matter to Blaine, after his arrest but before the commencement of the warned statement. Notwithstanding this assertion, there was no cross-examination of Blaine respecting same.

Indeed, nor was there any cross-examination of the complainant in such respect. The Crown argued that the Court should give little weight to the accused’s testimony respecting this subject matter on the basis of Brown and Dunn. The Court agrees. The Court also observes that the accused’s reputed expression of remorse respecting his infidelity does not possess an air of reality in the context of the reputedly mutually consensual consummation of the parties long-term flirtation.

The Court is therefore of the opinion that the defence evidence does not raise a reasonable doubt. [ 27 ] Turning to the third stage of analysis, the Crown argued that the complainant’s evidence had essentially been consistent throughout and submitted that her testimony had not been successfully, or for that matter, even thoroughly challenged by cross- examination. In particular, the Crown referenced the text messages that were exchanged between the complainant and the accused a couple of days after the incident.

These messages which were quoted verbatim at the outset of my decision included the accused’s seemingly self-compromising description of himself as being “a disgusting human being.” Also, in the same vein, “I failed you… I don’t deserve a chance.” Words of apology were also uttered: “I’m so sorry” is his response to her rebuke “Just admit it, u were wrong… U did something that a guy should never do to a girl.” Later in the thread the accused states “I’m sorry I did this”, in a context that is seemingly suggesting that he is apologetic not simply sorry because he engaged in consensual sex.

He repeatedly begs for compassionate mercy on behalf of himself and for his mother. But strangely he never apologizes for mentioning his girlfriend after their sexual intimacy, a seemingly troubling and strange omission given the version of events he related to the Court.

[ 28 ] The accused testified that his tacit acknowledgment and admissions were motivated not by guilt but by fear. According to him he was in a state of shock and fear after being confronted and assaulted by the complainant’s posse the night before. The accused related that he had only apologized because he feared further violent reprisal by the angry ex-boyfriend. The accused further elaborated that he had begged for mercy because he was “devastated” and “confused” by the sexual assault allegation. That he’d been so because he had never been treated in such a manner before.

He told court that the rape allegation had unnerved him, resulting in consequent fear and confusion. The accused testified that he had sought to appease the complainant in the hope that she would relent. The accused further related that the complainant’s allegations had made no sense to him at all. [ 29 ] The Crown retorted that the accused’s admitted and unexplained failure to provide Detective Blaine with the exculpatory texts he referred to during his police interview, ones he described as referencing oral sex, should also give the Court reason to doubt the accused’s over-all credibility.

That the accused’s failure to divulge the reportedly exculpatory information made little sense in the presenting context, given that the text materials were represented to Blaine as refuting the complainant’s veracity in reference to her allegations. The Court concurs with the Crown’s submission on this point. [ 30 ] The veracity of the complainant’s evidence was attacked by the Defence on several points. Defence encouraged the Court to find the existence of a reasonable doubt on such basis. [ 31 ] In no particular order the defence suggested that the Court should give no weight to Ms.

Sanderson’s testimony about the freshly torn underpants because the complainant herself hadn’t specifically mentioned her underwear being ripped during her examinations by counsel about the details of the incident i.e. that she’d only stated that her clothes were ripped off without specifying that such clothes included her underwear (see page 35, lines 12-13). Of course, she also told court that her pants and lower body underwear had been removed (at page 43, lines 19-26). The Court does not share Defence’s

interpretation of the complainant’s testimony as such an

interpretation does not accord with common sense given the emergent nature of the complainant’s described and desperate situation. The Court is of the opinion that it would be totally unreasonable to expect her to be aware of all damage sustained to her clothing at the actual or proximate time of the alleged attack. [ 32 ] Defence also suggested that the Court should be concerned about the complainant’s credibility because there was no indication that her bodysuit had been forcefully removed, that no cuts, tears, rips or other damage were found to have occurred to the garment.

The Court, notes that the complainant never suggested that extreme force was employed to remove her bodysuit. Indeed, defence counsel asked very few questions respecting this subject during her cross-examination. As a consequence there are no internal inconsistencies with respect to this subject matter inherent in the complainant’s evidence.

For this reason I am disinclined to concur with defence’s submission in respect to this line of argument. [ 33 ] Defence also suggested that both the complainant and her ex-boyfriend should be disbelieved because they denied the accused’s version of the following evening’s confrontation at the accused’s apartment block. The Court again observes that it does not agree with defence’s submission on such point.

While I feel that it would be very unwise to accept any acknowledgments of guilt allegedly made by the accused at such time, because of the very threatening circumstances of the meeting, I have no way of determining whether the accused’s or the Crown’s witnesses’ version of this aftermath incident is credible. After all, the accused compromised his credibility on the subject matter by telling police investigators that his shirt was ripped to pieces while telling the Court it had received a single rip, the same evidence Mr. Kamara had provided.

The only difference between Kamara’s and the complainant’s testimony in this respect related only to the degree of damage as Mr. Kamara conceded that the shirt had ripped when he pulled it and the complainant also testified that the damage had occurred when he had pulled the shirt (see page 46, lines 5-6) albeit she denied seeing the ripping or punching (see page 73, lines 9 to 24). [ 34 ] The Court can see no reason to believe that Mr. Kamara and the complainant were colluding in this respect as was implied by Defence.

There is certainly no evidence of anything of that sort, no suggestion of an attempt to extort money or anything like that. [ 35 ] On a related subject, the Court notes that the evidence of the complainant and Kamara did differ in one respect, something that Defence did not cross-examine Mr. Kamara about. The complainant told court that her intimate relationship with Mr. Kamara had ended in October or November of 2016, several months before the trial related incident. Mr. Kamara provided evidence that such relationship was ongoing on March 27 th , 2017. That they had broken up the following month. If Mr.

Kamara’s recollection is to be believed, then both the accused and the complainant were engaged in extra-curricular socializing at the time of the alleged incident, a situation that could have buttressed the complainant’s motivation to make a false complaint to cover up a consensual but covert relationship. However, as mentioned, defence counsel did not cross-examine Mr. Kamara in reference to any alternate circumstances surrounding the complainant’s disclosure. The Court is of the view that the timing of the break up with Mr.

Kamara is not a significant issue as the motives of the complainant were not challenged in the course of Mr. Kamara’s or the complainant’s cross-examinations. [ 36 ] The accused also argued that Ms. Williams had been drinking earlier and was likely to have suffered memory and other perceptual deficits associated with that situation. That as such her reliability as a witness was compromised.

The Court observes that there was very little direct or cross-examination of the complainant respecting this subject, certainly no cross-examination respecting the degree of alcohol impairment or even the quantity of alcohol consumed earlier in the evening. As a consequence there is simply no basis upon which the Court could find memory or perceptual deficits that may have affected the reliability of the complainant’s evidence. [ 37 ] In accordance with W.(D.) the Court has considered all the evidence in this case.

The evidence that I have accepted as being both reliable and truthful, that of the complainant, does not leave me with a reasonable doubt as to the accused’s guilt. There were simply too many concerning discrepancies and inconsistencies in the accused’s testimony to leave me with a reasonable doubt. And most importantly, the complainant’s evidence was essentially corroborated by the other Crown evidence placed before the Court, particularly the text messages and damaged clothing. Accordingly, I convict the accused of the charge. “Original signed by:” CORRIN, P.J.