R v SM, 2022 MBPC 62

CITATION : R v SM , 2022 MBPC 62 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) D. Simard ) for the Crown – and – ) ) S. M. ) R. Wolson ) for the Accused ) ) ) Delivered: ) December 23, 2022 ALLEN, P.J. [ 1 ] S.M. is charged that he committed a sexual assault against R.K. on both September 12, 2020, and between September 13 and 20, 2020. These charges are laid under

section 271 of the Criminal Code of Canada . [ 2 ] The Crown’s evidence in this case relies on the testimony of R.K. Ms. K. told the Court that she came to Winnipeg on September 11, 2020 from her home country. She said that she came to Canada to take a post-graduate degree in engineering at the University of Manitoba (the “University”). Prior to coming, she had communicated with a student association at the University and had made arrangements with some of their members as to accommodations in Winnipeg and being met at the airport, etc. One of the people she corresponded with was the accused, S.M. Mr.

M. met her at the airport and after some difficulty locating suitable lodgings, drove her to the Hampton Inn where she spent her first night. [ 3 ] The accused and the complainant got together again the next day and eventually after arranging for an Airbnb (“BNB”) accommodation, they ended up at the accused’s residence. The complainant testified that the accused sexually assaulted her at that time, both by unwanted touching and sexual intercourse. [ 4 ] Ms.

K. told the Court that during her early dealings with the accused she was suffering from jet lag and felt entirely dependant on him as he was bringing her food prepared for her by other members of the student group. [ 5 ] The complainant said that the accused sexually assaulted her again a few days later after trying to force her legs open. She said that she ended up accommodating him with oral sex and that he ejaculated in her mouth. She testified that she did not want this to happen.

The complainant also testified that she and the accused had sexual intercourse on September 18, but that on that occasion she did not resist even though she did not want it to happen. [ 6 ] At some point later, Ms. K. filed a complaint with the University of Manitoba as to the alleged sexual assaults by the accused. As well, on September 28, 2020 she gave a police statement. [ 7 ] The accused testified that on September 12th, when he and the complainant were at his residence, the complainant drank two or three glasses of wine and a beer, and asked him to put music on so that she could dance.

He said that at some point they started kissing and that she did not object. He said that she removed her top and suggested that they go to the bedroom. He said that she told him she wanted to have sex, that they had kissed and touched, and he put a finger in her vagina. He said they did not have intercourse on that occasion. [ 8 ] The accused testified that Ms. K. spent the night at his place and that the next morning he drove her to her BNB. He said she called him later that day and said that she wanted to have sex with him and that he should come over and bring a condom.

He said that he did go to her place, she gave him oral sex, but again they did not have intercourse and nothing was done against her will. He also testified that she sent him an affectionate text message that evening which included heart emojis. [ 9 ] He also testified that on September 14 she sent him a text message saying, “You are a kind man and handsome.” Again, with heart emojis. [ 10 ] He also testified that she called him on September 15 and told him that she wanted to try have sex again.

He said that time they did have sexual intercourse and that it was consensual. [ 11 ] He said that she called him again on the 17th and asked that he pick her up. He did and they went to his place to celebrate her 32nd birthday. Again, they had sexual intercourse. [ 12 ] In this, as in all criminal prosecutions, the onus is on the Crown to prove the essential elements of the charges beyond a

reasonable doubt. As credibility is at issue in this case, I must direct myself to the Supreme Court case of R v W(D), (SCC), [1991] 1 SCR 742. That case sets out that the trier of fact must determine 1. If you believe the evidence of the Accused obviously you must acquit. 2. If you do not believe the testimony of the Accused but you are left in reasonable doubt by it, you must acquit. 3.

Even if you are not left in reasonable doubt by the evidence of the Accused you must ask yourself whether on the basis of the evidencewhich you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [13] Ultimately, the evidence of the accused must be looked at within the context of the other evidence admitted in the trial. [14] In this case, the complainant made a complaint to the University and gave an interview to the investigator hired by theUniversity.

She also gave a statement to the police and testified at this trial. [15] Defence argues that there are significant discrepancies and omissions in the three statements and in her testimony at trial. [16] As well, the defence argues that Ms. K. was not acting in good faith when she provided only partial components of the text andemail messages between herself and the accused to the University’s investigator. [17] Looking first at the evidence of the complainant, Ms. K. said that the accused had kissed her at the time of the first assault.

Oncross-examination, she acknowledged that they both kissed each other and that he touched her body. She acknowledged also, that in herstatement to police she said she was “okay with that”. [18] On cross-examination, she also testified that she didn’t remember if he took her clothes off, “but she was okay with that”. Oncross-examination she admitted saying to the police “he removed my top” and “I don’t remember if I took off my bra”. [19] She also admitted that she told police that she thought he removed her pants and underwear. She then said that she kissed himand he was touching her and she was okay with that.

He then put his finger in her anus, she told him to stop. He then went to thewashroom; he returned and they continued to kiss. [20] She also admitted on cross-examination that she told police that he suggested that they go to the bedroom, that at that point shewas only half dressed, and that she was okay with going to the bedroom.

In court, she said she was agreeable to going to the bedroombecause she was dizzy and wanted to lie down. [21] She also admitted that he took her pants off again in the bedroom and she “didn’t think much about it”. [22] She also acknowledged under cross-examination that the accused asked her if she knew what she was doing and if she wouldremember this. [23] The complainant also said in court that her memory about the events is “hazy, because it has been two years”. [24] It is always concerning from a question of assessing the reliability of evidence when a witness frequently says “I don’tremember” and says that their memory is “hazy”. [25] It would appear that the details provided by the complainant under cross-examination paint a somewhat different picture thanevidence in her complaint to the University. [26] It is also noteworthy that when asked by the University investigator to provide any relevant texts, etc, she did not include thetexts wherein she complimented or praised the accused and said things like, “I am grateful for all your help you are truly a kind man,also very warm and handsome” (from a text sent September 14, 2020).

As well, she did not include texts which included heart and kissemojis. [27] At trial, the complainant acknowledged that she had consensual sex with the accused at his residence on her birthdaySeptember 18. On cross-examination, she admitted that it was she who initiated the contact by calling him. About this night she said, “Ihad the best time.” She also acknowledged that she initiated the physical contact that evening by kissing. On direct-examination, she hadacknowledged that they had sex but she said she “allowed it but didn’t want it”. She also said that there “was no point in fighting it”.

Shealso acknowledged that she told police that she spent the night at Mr. M.’s residence but on cross-examination said she couldn’tremember if she did or did not spend the night. [28] On her cross-examination she acknowledged sending him a text message on September 18, 2020 saying, “I wanted to knowhow you are doing. I think about you.” [29] Again, this text was not provided to the University. [30] In this case, the Crown argued that the complainant’s circumstances had placed her in a vulnerable situation in that she knewvery few people, did not know Winnipeg and she was dependant on the accused for food.

The Crown pointed out that when thecomplainant arrived in Winnipeg she was required to quarantine for 14 days. The Crown argued that because the complainant hadreached out to a student organization and was relying on them for food, that the accused was in a position of trust vis-à-vis thecomplainant. [31] I agree that when the complainant arrived in Winnipeg she was jet lagged, exhausted and in completely unfamiliarsurroundings. I do not agree that her difficulties with securing accommodations on her first night can be considered to be Mr. M’s fault.

The complainant is an intelligent forceful 32-year-old with a professional degree from her home country. She had been in contact with several other people from the student association besides the accused and had in fact asked one of them to check out potential accommodation on her behalf. [ 32 ] The Crown argued that Mr. M. directed the complainant to the Marlborough Hotel in downtown Winnipeg because he knew she wouldn’t like it and would then stay with him as a fall back position. In my opinion, that is only speculation. There is no actual evidence that Mr.

M. even knew that the Marlborough Hotel would not be suitable or that they were not allowing people to quarantine there. [ 33 ] I do not find that there was a trust relationship in this situation. I do however agree that being so unfamiliar with a new location and culture, particularly during a pandemic, left her in a vulnerable position. Nevertheless, I see nothing from the evidence or from the way the complainant handled herself in court to indicate that she was not capable of looking after herself as required.

Her language in court was notable, such as, “I insisted he take me to the Hilton.” [ 34 ] As well, she spoke about having communicated with three other students from the student association, living in Winnipeg and all interested in helping her. [ 35 ] When Ms. K. testified in chief, she did not provide significant detail as to the sexual assaults. Several times she said that her memory was hazy or that she wasn’t sure or could not remember.

She blamed her lack of detail on the fact that she had been consuming alcohol (as to the first incident) and generally as to the passage of time. [ 36 ] As stated above in her complaint to the University investigator, she said she told Mr. M. to stop taking her clothes off. On cross-examination, she said she was okay with that. [ 37 ] As to why she gave only selected texts to the University, she said that she did that because she was asked to provide anything that supported her case. While it is possible that Ms.

K. may have misunderstood the instructions in this regard, I have to agree with the defence that it is highly unlikely she would have been so advised. Given Ms. K.’s clear level of sophistication and intelligence it is hard to imagine that she would think that the University would want the material provided to have been edited. I agree with the defence that this behaviour does to some extent reflect on the complainant’s credibility. [ 38 ] Ms. K. acknowledged on cross-examination that the accused asked her when they were kissing and touching if she was aware of what she was doing. Mr.

M. testified that he asked her this three times. That question does not sound like something that would be asked by someone who was disregarding the wishes of the other person. [ 39 ] The detail provided by the complainant about the allegations was much greater under cross-examination than that provided on direct-examination.

On direct, she often said, “I can’t remember.” On cross, statements she had made to the University investigator or to the police were put to her, which brought out fuller detail in response. [ 40 ] I agree with the defence that this discrepancy between “I can’t remember” on direct and the detail provided on cross- examination again reflects upon the credibility of the complainant. [ 41 ] An example of some of the evidence from the complainant’s cross examination at trial that acknowledged what was said in the interview with the University of Manitoba investigators Walsh and Wire includes; - She kissed him when they were dancing at his residence on the night of the first allegation; - He put his hand in my pants; - I think he removed my top; - I continued kissing him and that was okay; - He said let’s go to the bedroom and I was okay with that; - I didn’t think much about it.

I was half dressed. [ 42 ] To the University, she told them that she told him to stop. In her complaint, she says she was screaming. [ 43 ] In court, she said that the accused put his finger in her vagina “and there was blood”. This is consistent with the testimony of the accused. She also said she asked him to bring her a mirror to see the blood and again, this was consistent with the accused’s version. [ 44 ] I do not think that this behaviour on the part of the accused would normally be consistent with someone who is forcing himself on a victim.

Both the complainant and accused testified that after the blood and mirror they showered together. [ 45 ] It is also notable that within hours of this incident, the complainant was texting the accused and sending him hearts and kisses. I of course recognize this behaviour could also be in keeping with the behaviour of someone who had been abused. However, a s these demonstrations of affection or regard have been raised in this trial, I have noted them in this decision. Nevertheless, they have not played a

part in my adjudication, as the Court is fully aware that affection towards one’s abuser can be a feature of abusive situations. These communications must be looked at, as with all the other evidence heard in this trial, within the context of the entire trial. [ 46 ] As to the allegation as to sex on her birthday: the complainant said the following in her interview with the University’s investigators: Complainant (1:09:08): . . . afternoon he came and he brought a cake with him. He said it’s your birthday cake and he said that I’m going to get you out of here uh, for -- for your birthday. You do not, you should not be here for your birthday in this room, I am going to

get you out. And then, then I was -- at least I was happy too, for like being out for a second in the car and stuff like that, so I -- I went out with him and he brought me to his home again. Uh, it wasn’t really out much, like there wasn’t any place we could go, so he could mm he just, and I said just stop the car, I want to take a breath in air -- the fresh air and he said that uh -- oh no um, we cannot go like we can be arrested and we should go to my home.

So he brought me to his home and then he, he made some candles on the cake and -- like took some pictures of me blowing the candles and gave me a used bracelet. A used -- did you see that bracelet? Interviewer: Yes Complainant: Like, it was more degrading than birthday gift, so, I didn’t say anything, I just -- I just knew it, it didn’t matter to me at all. Interviewer: So, were you nervous about going into his apartment? Complainant: I don’t know. I know what, what was going to happen. But I already like, got along with it before so, I don’t know, I just was happy to, to go out into the fresh air.

Like I was more excited to go and, and I asked him a couple times to just stop the car in the -- in the highway so I can get -- breath some air and I pull the car’s windows down to, to be able to breath some air. No, it wasn’t like -- I know that he perhaps was going to rape me again, but at that point in time I just, I just thought I’d, I’d go along with it. So what he did was that -- again he, again he, at that day he penetrated me, and um, this time again I resisted with my legs, like putting my legs together very hard because I didn’t want that to happen.

And um, what happened was that, again I started bleeding, so he wounded me again and this time . . . [ 47 ] Of note, is that this exchange implies that it was the accused who initiated the contact that day. On cross-examination, she admitted that she contacted Mr. M. and told him she was “down” and wanted to get out. Also to the investigator she said, “I already like, got along with it before so, I don’t know. . . I just thought I’d, I’d go along with it . . again I resisted with my legs, like putting my legs together very hard … I told him to stop many times” (excerpts from 1:09:08-1:11:56 of interview tape #1,

part 2). [ 48 ] This is in contrast to her acknowledgement on cross-examination that in her police statement she told them that the sex on that day was consensual, she thinks she asked him to use a condom, and she did not tell him to stop even though it was painful. [ 49 ] Also on direct-examination she said, “He came and got me. We went to his place for a birthday cake. He had sex with me. . . I allowed it” and she said she stayed the night. [ 50 ] At court, in cross-examination, she said she wasn’t sure whether she spent that night at the accused’s residence.

However, she acknowledged that she told the police she did spend the night. [ 51 ] Also on cross-examination, she acknowledged that on September 18th she sent him a text saying, “I wanted to know how you are doing.

I think about you.” [ 52 ] Again, she acknowledged that this text was not sent to the University. [ 53 ] As to the second incident alleged to have taken place at her BNB, she said on direct-examination that he started touching her on the bed, she pushed his hand away, she tried to push his hand away, he tried to force her legs open, she tried to push him away, and that he eventually ejaculated in her mouth. She said she did not want to do this. [ 54 ] This testimony is in contrast to the excerpt from the investigator’s interview where she said (00:59:49-1:01:26, interview tape #1,

part 2): Complainant: Yeah, uh, as I said, I think the same day he brought me some food and stuff like that. And again, he -- he was back to the person, the nice person he was, you know -- bringing coffee, food, stuff like that -- and he was even nicer, like he, uh, yeah he, I think brought lots of food and shopping and things like that sodas and coffees and cookies, things like that. Um -- but after that, uh it happened again.

I don’t remember exactly how many days after that to tell you the truth because being in one room after a flight, after like confusing the days, days go -- become so routine that you – you just lose the track of them, you know? So what I noticed that it happened a few days after that. Maybe two or three days after that again. And what happened was that I was lying on the bed, sleeping in the middle of the day because I had jet lag so I still slept to the times in my country, like when it was midnight I suddenly became sleepy and slept.

Uh, so it was in the afternoon, when I was asleep and I darken the room like, close all the curtains and blinds and everything to sleep and I woke up with him opening the door with the key Interviewer: Sorry I didn’t hear you. You woke up – Complainant: I woke up with the sound of the key opening the door – Interviewer: Okay Complainant: Yeah, so but I was so, like a sleepy that I didn’t make a reaction, I just opened my eyes and see -- saw him -- that the room was dark and saw him enter the room and he said “ohhh lazy . . . . . .

Complainant: . . . time, this time I just allowed him to just um have sex with me without any – like I didn’t even feel like moving or anything, he just -- and he finished quickly and then he warmed up some food and brought uh, brought some food and I ate and I went back to sleep and he left. Interviewer: So you, you let him have sex with you?

Complainant: Yes. [ 55 ] This explanation is in stark contrast to the complainant’s testimony in both direct and cross-examination about this incident. [ 56 ] As to the birthday incident, she says S.M. kissed her. But on cross-examination she admits she kissed him back. At trial she said she had sex with him; That there was “no point in tiring herself,” so she didn’t resist. [ 57 ] She told police, “We had the best time. It was the only time we socialized.” She told police she had sex with him. On cross- examination: “I kissed him a lot. . .

I initiated it.” [ 58 ] She told the police the sex was consensual but fairly aggressive sex. This is different from what she said on examination on chief and what she said to the investigator wherein she says she resisted (at 1:10:26). [ 59 ] Also, she told the University that she told him to stop many times.

Basically, she has given multiple versions as to what happened during this incident and some of these versions are dramatically different from the others. [ 60 ] The complainant admitted on cross-examination that on September 23, with just one day left in her COVID isolation period, she called the accused and ended up going to his residence to spend the night. This is a surprising action in light of the complainant’s stated concern about following COVID protocols.

It was also argued by the defence that this behaviour was inconsistent with being upset by the contact that she had up to that point with the accused. [ 61 ] Ultimately, a case of this nature is about credibility and reliability. R v W(

D) requires that I begin analysis of this case using the formula set out in that case. [ 62 ] Mr. M. was not shaken in his evidence and there was very little about his testimony that could be categorized as contradictory or obviously internally inconsistent. [ 63 ] One could certainly argue that there is a fairness discrepancy in the criminal justice system when one party provides a description of the relevant events for three separate statements.

In this case, the complainant made a complaint to the University, made a statement to the University’s investigator, made a statement to Winnipeg police and finally, testified in court. In contrast, the accused only testified in court. [ 64 ] It is inevitable that any complainant having to recount incidents in so many forums will not do so identically in each re-telling. Our courts have the capacity to expect those inconsistencies and adjust accordingly. [ 65 ] There are other reasons why the version of events provided in court may differ from those provided in earlier statements.

The court experience is stressful, there can be, and there has been in this case, a significant passage of time. Nevertheless, the checks and balance system of our criminal trial process does require that allegations be proven beyond a reasonable doubt. [ 66 ] The criminal trial process is not about determining who is telling the truth or who is not. A decision by the trial adjudicator is not a verdict as to what actually happened.

What the judge is charged with determining is whether the essential elements of the charges have been proven beyond a reasonable doubt. [ 67 ] To do so in this case, the Crown would have to have established that the evidence before the Court was both credible and reliable. [ 68 ] As a result of all of the inconsistencies in these multiple statements, and the evidence heard in these proceedings, I am not satisfied as to the credibility or reliability of the evidence advanced in this prosecution. [ 69 ] In following the W(

D) formula, I have concluded that after hearing the evidence called by the accused and looking at that evidence in the context of the entirety of the evidence before the Court, I am left with a reasonable doubt as to the guilt of the accused. [ 70 ] Accordingly, the accused is acquitted of both charges. Original Signed by Judge Allen H. L. ALLEN, P.J.