R. v. Woldemichael, 2011 ONCJ 895

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Citation: R. v. Woldemichael , 2011 ONCJ 895 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — YETEBAREK WOLDEMICHAEL Before Justice Sandra Bacchus Heard May 11, 2011 Reasons for Judgment released on May 31, 2011 O. Braithwaite ................................................................................................... for the Crown L. Riva .............................................................. for the accused, Yetebarek Woldemichael

Bacchus J.: INTRODUCTION [ 1 ] Yetebarek Woldemichael is charged with committing the following offences on October 24, 2010: 1. sexual assault 2. assault; and 3. failing to comply with probation. [ 2 ] The defendant pleaded not guilty to count one, but guilty to counts two and three. [ 3 ] In relation to the sexual assault charge, the sole issue for determination is whether the defendant’s conduct constituted a sexual assault. [ 4 ] The Crown’s case consisted of the following evidence: the videotaped statement of the complainant (exhibit 1); the videotaped statement of the defendant (exhibit 2); photos showing injury to the complainant sustained in the struggle with the defendant (exhibits 3a to f); and photos showing the injury to the defendant’s thumb which he says occurred when the complainant bit him during the struggle (exhibits 4a to c).

The video statements were filed on consent of both parties for the truth of their contents with no issue taken as to their voluntariness or accuracy. No viva voce evidence was called. [ 5 ] On October 24, 2010, the complainant, who is 16 years old, was in attendance at St. Aquinas Church for Sunday 12:30 p.m. mass. The complainant was suffering from a cold and made a trip to the bathroom located in the basement of the church. The complainant returned upstairs to mass but realizing that she needed to blow her nose, she went back downstairs a second time to the basement washroom.

As she was exiting the bathroom stall, she observed the defendant come through the washroom door. As she tried to leave the washroom, the defendant blocked her exit and the complainant began screaming. The defendant told the complainant to shut up, tried to quiet her by putting his hand over her mouth and subsequently punched the complainant repeatedly about the head.

The complainant described in the videotaped statement the defendant’s actions in trying to push her to the floor. [ 6 ] The defendant in his videotaped statement to the police stated that he came to the church to beg for money and was in the basement of the church for that purpose. However, the defendant stated that when he saw the complainant walk by him and enter the washroom, he was certain that she was luring him into the washroom, intent on leading him to make the mistake of committing a sexual assault upon her.

The defendant told the police that he followed the complainant into the washroom for the purpose of sexually assaulting her. He said that the complainant refused him and that he punched her in the head. He said that the complainant bit his thumb and he fled. He stated that when he saw the complainant bleeding he knew this was not right.

In addition, he stated that when the complainant appeared to say okay and stop fighting that he stopped this assault as he knew she was up to something. [ 7 ] The following matters are generally agreed upon and I find them as facts: 1. the complainant and the defendant were not known to each other; 2. while assaulting the complainant, the defendant did not use any sexually provocative language; 3. while assaulting the complainant the defendant did not touch the complainant’s private parts; 4. the complainant struggled violently and refused to comply or submit; 5. the complainant did not know or was not sure, why she was being attacked. [ 8 ] In this case, Yetebarek Woldemichael is presumed to be innocent, unless and until the Crown has proven each essential element of the offence beyond a reasonable doubt. [ 9 ] Reasonable doubt is based upon reason and common sense.

It is logically connected to the evidence or the lack of evidence. [ 10 ] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the S.C.C. in R. v. D.W .

First: if I believe the evidence of the accused, I must acquit; Second: if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit. Third: even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 11 ] In this case, applying the principles as set out in D.W., I am satisfied beyond a reasonable doubt that the accused sexually assaulted the complainant.

Analysis of the Evidence [ 12 ] In terms of the defendant’s statement to the police, Ms. Riva has asked me to give it no weight. Ms. Riva submits that the defendant’s statement is unreliable, confused and nonsensical, and that the defendant is essentially unconnected to reality. [ 13 ] It is clear from the defendant’s statement that two things overwhelmed his perception of what occurred. The first was his view, strongly held, that the complainant intentionally lured him to commit the crime or “the mistake” as he put it, of pursuing the complainant with the intention of sexually assaulting her.

The second was the defendant's view that the complainant bit him causing injury to his thumb because she was part of an organized plot. I am entitled of course to accept all part or none of any witness testimony. I have listened to the statement and made observations of the defendant as he spoke with the police.

The defendant repeatedly stated that he intended to sexually assault the complainant and he followed her into the bathroom for that purpose. [ 14 ] I find that the portions of the defendant’s statement wherein he expresses his intention to sexually assault the complainant are reliable and internally and externally consistent.

I find that the defendant's description of his actions, including the act of following the complainant into the washroom in a fairly secluded area of the church, blocking the complainant’s exit and then assaulting her by punching her repeatedly, covering her mouth and grabbing her, are actions consistent with his stated intention to sexually assault the complainant. In addition, the defendant’s description of his actions in following the victim into the bathroom and the ensuing assault upon the complainant are consistent with the complainant’s version of events.

I note that the defendant told the complainant to shut up while he tried to physically dominate and overwhelm her, also consistent with the complainant’s version.

The defendant made no demand for money nor did he try to search the complainant for money or property. [ 15 ] Although the defendant’s perception about who the complainant is, why she went to the church basement, and whether she was part of an organized plot is an outlandish explanation of the reasoning behind his actions, I am nonetheless left with no reasonable doubt that his actions were motivated by his intent to sexually assault the complainant. [ 16 ] I do not accept the defendant's statement that the complainant gave up fighting and said “okay”.

This aspect of the defendant’s version of events is not corroborated by the complainant's version, or by the physical evidence of the struggle as seen in the photographs (exhibits 3a to f and 4a to c). It does not accord with the other evidence available regarding the complainant’s panic stricken demeanour. I find that the defendant’s overall perception of the complainant and her actions is not reliable. [ 17 ] I was able to assess the complainant’s credibility and reliability from the video evidence taken shortly after the assaults occurred.

The complainant appears youthful, unsophisticated, and extremely frightened and overwhelmed by what occurred. I found in observing her statement to the police, that she described the events in a straight-forward, consistent manner, and that she had a vivid recall of details of the events that had transpired earlier that day. I find that the complainant was extremely careful in the way she described the incident unfolding. Her evidence was extremely credible and reliable and is corroborated by her injuries and by the statement of the defendant.

The complainant offered further details of the physical struggle which were lacking from the defendant’s evidence. For instance, she says at one point, that the defendant told her to go to the ground and to stop screaming. In addition, she described on a number of occasions in her statement to the police, the defendant grabbing her and trying to push her to the floor during the course of the attack. In describing the attack, the complainant on the video is seen to twist from side to side while explaining that the defendant could not get on top of her because she was moving the whole time.

At one point, she states: “He was almost on top of me so I was kicking him.” (Exhibit 1, p. 25) [ 18 ] This aspect of her testimony, namely the defendant’s efforts to force her to the floor, is confirmed by the marks to her back and upper arm (as seen in exhibits 3c, 3d and 3f). This was a violent struggle as evidenced by the injuries to the complainant.

It is also corroborated by the defendant, who stated that the complainant refused and was fighting him. (Exhibit 2, p. 25) I find as a fact that the defendant, during the course of this struggle, was trying to push the complainant onto the floor and get on top of her consistent with furthering a sexual act upon her. The Law [ 19 ] A sexual assault is an intentional application of force that occurs in circumstances of a sexual nature such that the sexual integrity of the complainant is violated. As per the decision in R. v.

Chase , [1987] 37 C.C.C. 3(d) 97 S.C.C., in determining whether there has been force intentionally applied in circumstances of a sexual nature, such that there has been a violation of the complainant’s sexual integrity, all of the circumstances surrounding the alleged act must be considered. It is an objective test: is the sexual or carnal context of the assault viewed in all of the circumstances, visible to a reasonable observer. The circumstances to consider include: the part of the body touched; the nature of the contact; the situation in which it occurred; the words and gestures accompanying the act.

The purpose of the application of force or touching may also be considered in determining whether it was of a sexual nature. [ 20 ] In this case considering the circumstances and issues raised by counsel I must consider: Is it necessary for the defendant to have touched or attempted to touch a private part of the complainant in order to violate her sexual integrity such that the act of sexual assault is made out? Is it necessary for sexual words to have accompanied the sexual assault in the case where no sexual touching occurred?

Is it necessary to the proof of the offence that the complainant appreciate that the defendant was attempting to sexual assault her in the circumstances? [ 21 ] In R. v. Higginbottom (2001), 56 C.C.C. (3d) 178 (Ont. C.A.), the defendant met the 12 year old complainant in a park. The appellant told the complainant that he would give him $10.00, if the complainant “sucked his dick”. The complainant refused and the appellant punched him in the jaw, knocking him off his bike. The appellant rode away and later exposed his penis and masturbated in front of one of the complainant’s friends.

On appeal, in considering whether the assault on the complainant was sexual in nature, the Court held that it was entirely open to the trial judge to conclude that the assault in question in this case was sexual in nature. The Court held that the words spoken by the appellant inviting the complainant to perform fellatio on him were clearly sexual in nature. These

words, coupled with the intentional application of force upon the complainant following the complainant's refusal to comply, constituteda sufficient basis for the trial judge’s finding that the assault was sexual in nature. The Court made this finding despite the fact that thecomplainant had not been touched in an overtly sexual manner. [22] In Higginbottom, the Court made reference to the decision in R. v. Acleus (2000), (QC CA), 151C.C.C. (3d) 91. In Acleus, the accused struck the complainant for refusing to perform fellatio on him.

The Quebec Court of Appealallowed an appeal by the crown and substituted a conviction for sexual assault finding that the striking of the complainant upon herrefusal to perform oral sex constituted a violation of her sexual integrity. The Court held that when a denial of sexual gratification ispunished by physical harm the sexual integrity of the victim is no less violated than when compliance is secured by force. [paragraph 13] [23] The decision in R. v. Alderton (1985), (ON CA), 17 C.C.C. (3d) 204 (Ont.

C.A.) is also instructive onthe issue of the nature of the touching required for proof of the actus reus of a sexual assault. In Alderton, the complainant was asleep inher bed when she was awoken by a man in the doorway of her room wearing a nylon stocking over his face and rubber gloves. The manjumped on the bed and forced the complainant back into the pillows; he held her down with one hand covering her mouth and nose. Thecomplainant hearing the sound of tape being pulled from a roll, panicked, struggled and was able to free herself and flee from theapartment.

The defendant gave a statement in which he indicated that he had had a previous sexual relationship. This was rejected bythe jury. The Court in upholding the defendant’s conviction for sexual assault found that there was ample evidence upon which the jurycould find that the appellant committed the assault for a sexual purpose.

The Court made this finding despite there being no evidence ofovert sexualized touching or language used during the course of the assault. [24] As such, I find that the absence of sexualized touching on the complainant or provocative language during the course ofthe assault in the case before me is not dispositive of the issue of whether a sexual assault occurred.

As guided by the Court in Chase, Imust consider all of the circumstances of the case in determining if the complainant’s sexual integrity was violated by the force applied. [25] Having found that the accused’s purpose in attacking the complainant was to sexually assault the complainant does itmatter in determining that the complainant’s sexual integrity had been violated, whether the complainant appreciated that this was theaccused's intention in attacking her? [26] In my view, the fact the complainant did not appreciate that a sexual assault was the motivation for the attack, is notdispositive in determining whether a sexual assault has been committed.

To find otherwise, would be contrary to the objective nature ofthe test as set out in Chase and other jurisprudence. Such a standard would require, for example, that young children appreciate thenature of inappropriate touching before a sexual assault could be proven. In this case, the complainant appeared unsophisticated andextremely frightened by what occurred. The fact that she did not appreciate that the defendant’s intention in struggling with her in thebathroom was to sexually assault her is consistent with her youthful unsophisticated presentation as well as the shock she was in aboutwhat occurred.

It is also consistent with the care she took in providing her statement to the police. In her statement to the police thecomplainant was not prone to embellishing, overstating or speculating; I find that she recounted what occurred to her in a careful manner. [27] As with any offense involving physical violence, the act itself can unfold in stages from one end of the spectrum,preparatory, to an extreme violation.

In this case, I find, in light of the overwhelming and compelling circumstantial evidence that bearson the issue of the sexual nature of the assault, the defendant’s actions in punching the complainant and covering her mouth in anattempt to force her compliance was consistent with a violation of her sexual integrity. [28] I further find as a fact, that the defendant was attempting to force the complainant to the ground and get on top of her,efforts which were thwarted by the complainant’s constant struggling throughout the assault.

In my view, even if I am incorrect about afinding of sexual assault grounded in the act of punching the complainant and covering her mouth, the defendant’s action of forcing orattempting to force the complainant to the ground is an intentional application of force which in the circumstances violated her sexualintegrity. [29] Those circumstances I find are as follows: - the defendant’s repeated statement to the police that he had intended to sexual assault her because in his mind she lured him tothe washroom; - that the defendant intentionally followed her into the bathroom located in a fairly private, quiet area of the basement of thechurch; - that the defendant blocked the complainant’s attempt to exit the washroom; - that as soon as the complainant started screaming the defendant tried to cover her mouth, told her to shut up and punched herin the head repeatedly to subdue her and force her compliance; - that in the course of the struggle the defendant was trying to push the complainant to the floor and get on top of her.

Rule against multiple convictions [30] Given the findings of fact I have made in relation to the sexual assault, it is my view, pursuant to the principle in R. v.Kienapple (1974), (SCC), 15 C.C.C. (2d) 524, that a conviction on the assault charge would offend the rule againstmultiple convictions and I therefore stay the charge of assault. Date: May 31, 2011 ________________________________ Signed: “Justice Sandra Bacchus”