R. v. Brayley, 2014 ONCJ 572

ONTARIO COURT OF JUSTICE CITATION: R. v. Brayley , 2014 ONCJ 572 DATE: 2014 10·29 COURT FILE No.: Regional Municipality of Durham 998 14 RD27045 BETWEEN: HER MAJESTY THE QUEEN — AND — Shawn Daniel Brayley Before Justice J.

De Filippis Heard on October 7, 8, & 9, 2014 Reasons for Judgment released on October 29, 2014 Ms Bronowicki ........................................................................................ counsel for the Crown Ms Robson ....................................................................................... counsel for the defendant De Filippis, J.: [ 1 ] The defendant met S.J. in early 2014. Both are alcoholics and have offspring from previous relationships. The complainant’s two children reside with different grandparents. The defendant has custody of his four children.

Two weeks after they met, the complainant began living with the defendant and his children at the home of the defendant’s brother. The complainant and defendant occupied a basement apartment. In the months that followed, the complainant visited a former boyfriend on at least one occasion and had his initials tattooed on her body. This was a cause of friction. During a short period of separation, the defendant began a relationship with his current partner. This was suspended and the complainant returned to live with the defendant.

On 17 May 2014, the complainant went to the police to report that the defendant had assaulted her the previous day. During that interview, she reported other incidents of abuse. The defendant was charged with a number of offences. [ 2 ] The Crown withdrew several charges at the commencement of trial and invited me to dismiss another one during the trial. Consequently, I am called upon to decide if the defendant is guilty of the following offences: 1. Assault - Between 15 February and 17 May, 2014 2. Sexual Assault - Between 15 February and 17 May, 2014 3.

Mischief (Damage to Cell Phone) - Between 15 February and 17 May, 2014 4. Forcible Confinement - 16 May 2014 5. Threaten Death - 16 May 2014 6. Threaten Death - Between 15 February and 17 May, 2014 7. Failure to Comply with Probation Order (Keep the Peace; made on 7 August 2012) - Between 15 February and 17 May, 2014 8. Failure to Comply with Probation Order (Keep the Peace; made on 20 July 2012) - Between 15 February and 17 May, 2014 [ 3 ] At the outset of the trial I granted the Crown’s request to allow the complainant to testify from a room adjacent to the courtroom, by

means of close circuit television. In addition to certain agreed facts, I heard from four witnesses; the complainant and her previous domestic partner, P.V.V. (also known as “PJ”), as well as the defendant and his current domestic partner, Tanya Wesse. At the conclusion of the prosecution case, I dismissed the Crown’s application to tender evidence of the defendant’s prior disreputable conduct. [ 4 ] I find the defendant not guilty of counts 2, 3, and 6 and guilty of the other charges. These are my reasons. [ 5 ] On 16 May 2014, at around 9 PM, the defendant and complainant returned home after visiting a friend.

Both had consumed beer and wine during the day. They began to argue. The complainant cannot recall what the argument was about but it included the fact that she had recently had the letters “PJ” tattooed on her neck. These initials represent her former partner. She had obtained the tattoo during an interval in her relationship with the defendant. [ 6 ] According to the complainant, the defendant became increasingly agitated and “physical” over the next several hours. He began by stating he wanted to cut the tattoo from her body. When she tried to leave, he grabbed her by the upper arms and told her she must stay.

The complainant could not calm him down and at one point the defendant punched her in the jaw. She “blacked out” for an unknown period of time and awoke to find the defendant apologetic but still agitated. Once again, he prevented her from leaving by “dragging” the complainant to the basement while shouting that she “could not go anywhere”. He struck her in the back of the head and she “blacked out a second time”. During this ordeal, the defendant said he would kill the complainant’s mother and daughter, by slitting their throats, if she left him.

At around 1:30 AM, the complainant was allowed to leave after threatening to go to the police if the defendant continued to forcibly confine her. The complainant testified that she suffered bruising to her arms, writs, jaw (“four inches”), and ribs (“four to six inches”). [ 7 ] After leaving the defendant’s home, the complainant went directly to see Mr. P.V.V.. She later reported the incident to the police. During this interview, she alleged prior physical and sexual abuse by the defendant.

On 21 May 2014, the complainant was examined by Judy Allen, a nurse with the Durham Region Domestic Violence/Sexual Assault Care Centre. She took photographs of the complainant’s injuries that show bruising to the jaw, torso, and upper arms. In addition, Ms Allen noted that the complainant had a “superficial abrasion on the left armpit….posterior neck pain with decreased range of motion…shooting pain in her neck when tilting her head to the right….3cm of swelling hear her right ear” and “swelling and pain when opening and closing the jaw.

On the same day, the police executed a search warrant at the home where the defendant resided. In a wall unit in the basement apartment, an officer found and seized a “large pink dildo” in a package labelled “Super Cock”. [ 8 ] The complainant testified that from early in their four month relationship the defendant was “very controlling”: She was not allowed “privacy with respect to phone calls” and “could not talk to PJ”. During the many arguments, the parties sometimes “became physical”.

On one such occasion, the complainant cannot say when, she tried to leave in a vehicle but was prevented from doing so by the defendant; “he jumped on the roof and pounded on it”. He had to be restrained by his brother and uncle. On another occasion, the defendant struck her on the back of the head with an object that looked like a gun. This assault took place in the context of an argument in which the defendant said he would “kill” the complainant if she left. He also said he would “shoot PJ” if she continued to communicate with him.

In this regard, he grabbed the complainant’s cell phone and smashed it on the ground. [ 9 ] The complainant testified that the defendant determined when they had sex, and if she did not agree he would say, “no means yes”. She said, “this happened a lot, all the time” and included the use of a large pink dildo that he had purchased at an “adult shop”. They had gone to that store together and when he selected it, she suggested “something different as it was too big”. The defendant bought it and explained he would be gentle.

The complainant testified that the first time it was used the defendant “aggressively” penetrated her vagina and said he wanted “to put his penis in with it” and proceeded to do so, over her objections. Afterward, she experienced soreness. Another time, he put the dildo in her anus while his finger was in her vagina. When the device was fully inserted the complainant “couldn’t breathe”. He ignored her pleas to stop, saying “you can take it” and seemed to be “turned on” by her objections.

Afterward, her anus was sore and bleeding. [ 10 ] The complainant insisted the abuse was constant and that she “left and went back to PJ a couple of times.” She could not explain why she stayed with the defendant during these months of abuse and why she returned to him, with the PJ tattoo on her neck, after the last separation. She conceded that she maintained a sexual relationship with Mr. P.V.V. during these episodes. The complainant also agreed that “a couple of times” she consented to being penetrated with the dildo. When asked if she ever stuck the defendant, she replied that she could not recall doing so.

She also said she could not remember speaking over the telephone with the defendant’s new partner, “Tania”, after the incident on 16 May, and denied yelling at her during any such conversation. [ 11 ] The defendant and complainant regularly consumed alcohol and “were often drunk”. Both attended a residential treatment program for a few days during their relationship but, upon leaving the facility, resumed drinking. In addition, the complainant consumed opiate based “pain killers” on a daily basis. These had been prescribed to her because of injuries sustained in a serious motor vehicle accident years earlier.

She acknowledged she has trafficked in these drugs in the past. The complainant also admitted to “occasional use” of marihuana and cocaine. [ 12 ] P.V.V. is also an alcoholic and has been on the methadone program for several years. He has a criminal record for the following offences: impaired care and control (2007), drive disqualified and failure to appear in court (2009), and impaired care and control (2012). He testified he has had “an on/off relationship” with the complainant in the past. They are no longer together. [ 13 ] Mr.

P.V.V. said that on 16 May 2014, the complainant came to his home in the early hours of the morning and was “all swollen up….with bruises all over her body…her face was really bad”. Mr. P.V.V. knew that in the months before this incident the complainant had been living with the defendant. He said that she had contacted him several times to say she was unhappy and wanted to return to him. Whenever she did, she had “marks on her”.

When asked if the defendant had sent text messages to him, he replied, “the normal shit…threatening and that….I mean it was his girlfriend [now]”…it made me feel a little edgy, unnerving…I didn’t know what was going to go down”. [ 14 ] The defendant is 31 years old and a roofer by trade. He has a criminal record with 19 convictions between 1999 and 2013. He met the complainant through their respective children and soon after she moved into his home. However, she would often “disappear

at night” and he would awake to find her gone. The defendant testified they “drank a lot…about 12 beers each, every day”. Heconfirmed that they entered a treatment program and resumed alcohol abuse as soon as they returned to the community. He added thatthey also “shared a joint every other day” and once used cocaine The defendant agreed that he sometimes took medication while abusingalcohol and that this once resulted in his confinement to hospital under the Mental Health Act. [15] The defendant denied all the allegations against him.

With respect to the mischief charge, he explained that the complainanthas never had a cell phone and always used his. He testified that he and the complainant “had sex almost every night” and that it wasalways consensual. This included the use of a dildo on 10 to 12 occasions; “she would ask for it and never said to stop”. This device, hesaid, was selected by her, along with a “penis ring”, when they went to an adult store.

He picked out “some DVDs” and paid for allitems. [16] The defendant resisted the suggestion that the size of the dildo was such that it would cause pain if not used gently andexplained that it was “not much bigger than me when I’m erect”. He scoffed at the testimony given by the complainant that the deviceand his penis could be inserted into her vagina at the same time. [17] According to the defendant, by 16 May 2014, he was “devastated” by the complainant’s repeated communication with “PJ”,her former partner. The complainant had recently returned to his home after an absence of one week.

She admitted having had sex withPJ and he saw those initials tattooed on her neck. He forgave her but became upset when he saw her use his phone to send a textmessage to Mr. P.V.V.. This was the cause of their argument that day. The defendant agreed that they had been drinking beer and wine,began to argue around 8 or 9 PM, and that she left the home. However, he insisted that the argument lasted 20 to 30 minutes, not severalhours, and that the complainant left unharmed. He said there was no physical confrontation or forcible confinement and that he kepttelling her to leave.

The defendant cannot say how the complainant suffered the injuries depicted in the photographs. [18] The defendant testified that several days later, he received a telephone call from the complainant, asking to meet, and thatshe abruptly ended the call when he said he was in the company Tania Wesse and told her their relationship over. He added that the nextday, he was contacted by police about the present charges.

The defendant testified that he and Ms Wesse “were dating during the on/offrelationship with [the complainant]…and she was off getting her tattoo” and that he resumed this dating after the complainant left on 16May 2014. [19] Tania Wesse is 33 years old and has custody of three children. She has a criminal record with convictions for assaulting apeace officer, domestic assault, and aiding and abetting a breach of probation by her ex-partner. Ms Wesse confirmed she was with thedefendant on 19 May 2014 when he received a telephone call from the complainant.

She said the defendant declined to meet her and thatshe could hear the complainant yelling. Ms Wesse testified the defendant “has low self esteem” and “insecurities about men”. Shenoted that he once became upset that her ex-partner had contacted her. [20] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v W.D. (1991) (SCC), 63 C.C.C. (3d) 397. A criminal trial is more than a credibility contest between different versions of events. Tosupport of finding of guilt, each element of the offence must be proven beyond a reasonable doubt.

In a case where the Defence adducesevidence, that standard is not met if the evidence (

i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or(iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant isguilty. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entirecase: F v R.D. [2004] O.J. 2086 (O.C.A). [21] Defence counsel submitted that defendant and complainant are substance abusers to such an extent that it may be that neitherparty properly recalls the events in question.

In any event, it is argued the complainant’s evidence cannot be accepted: Her continualreturn to the defendant during the period of abuse is inconsistent with the allegations. Her story about that a dildo and penis was insertedinto her vagina at same time is implausible. The reported injury to her anus, resulting in bleeding, is dubious given that she did not seekmedical attention. Her assertion that she was not upset at learning the defendant had resumed a relationship with Ms. Wesse isinconsistent with the latter’s testimony.

Moreover, it is submitted that the complainant’s credibility is undermined by the fact she hasbeen a drug trafficker. [22] The Crown pointed to several factors in support of her submission that I should reject the defendant’s evidence: He is achronic substance abuser. He has a criminal record, including obstructing a peace officer and break and enter. His testimony wasinconsistent about how often the complainant left him; he said it was “a lot” in chief and “twice” in cross.

His evidence about the use ofthe dildo is also conflicting; he said it was not much larger than his erect penis and, thus, should not have hurt as claimed by thecomplainant and he also testified that he had to insert the device slowly because of its size. Finally, the Crown argued that his evidenceabout the events on 16 May 2014 cannot be believed, when considered in the context of the photographs and testimony of Mr. P.V.V.. [23] The Crown noted that victims of domestic violence tend to be like the complainant; that is, they are vulnerable to this kind ofprolonged abuse.

The fact that she did not seek medical help is explained by being battered alcoholic women who is afraid the Children’sAid Society will intervene in the relationship with her children. It is also submitted that the dispute between the parties about whowanted to buy the dildo should be resolved in favour of the complainant because of the sheer size of it.

Counsel argued that this isconsistent with her testimony that she only agreed to its use because he promised to be gentle; when he later “rammed it up her anus”, hecommitted a sexual assault. [24] The Crown concedes that the evidence of both the defendant and complainant should be approached with caution. However,an important difference between the two is that the complainant’s testimony about the events of 16 May 2014 is substantially confirmedby other non-contentious or unchallenged evidence; namely, the photographs, Mr. P.V.V. and Nurse Allen.

On this basis, it is submittedthat I should be confident of the complainant’s account of the other allegations. [25] The complainant alleges a four month period of abuse, including sexual assault, assault, threats, and mischief. The sexualassault is said to involve the forcible penetration of the anus with a large object, causing bleeding and pain. The police were called afteran incident on 16 May 2014, when the defendant is accused of grabbing the complainant to prevent her departure and repeatedly

punching her in the head and face. I accept that the credibility and reliability of the complainant and defendant is compromised by their regular and excessive consumption of alcohol and occasional use of illicit drugs. In the case of the complainant, this substance abuse was accompanied by daily doses of prescribed opiates. For his part, the defendant was confined pursuant to the Mental Health Act because of the effects of ingesting alcohol and drugs.

This dysfunctional relationship means it is difficult to have confidence in the testimony of either party. [ 26 ] I adopt the Crown’s submissions with respect to the need to reject the defendant’s testimony. His blanket denial of the allegations is of little value. His account of the sexual assault and events on 16 May 2014 are inconsistent and implausible. With respect to the former, I am unimpressed by assertion that the complainant did not complain about the dildo because it is similar in size to his erect penis. This, in itself, does not signify consent or repudiate the claim it the device was forcibly used.

In any event, when asked why, therefore, it was necessary to be gentle in inserting the device, he responded that, unlike, his penis, the dildo required lubrication. This answer is evasive. As I will explain, with respect to the events on 16 May 2014, the defendant’s testimony flies in the face of evidence about which there is no doubt. [ 27 ] I agree with Defence counsel that the testimony of the complainant, in itself, does not constitute proof beyond a reasonable doubt. With respect to the sexual assault, it is clear that the sex toy in question was used consensually on one or more occasions.

Moreover, not only did the complainant fail to seek medical treatment when she was harmed by the device being forced upon her, she continued to live with the defendant and have sexual relations with him. In these circumstances, I could not be satisfied beyond a reasonable doubt that the allegations are proven. In this regard, I acknowledge that vulnerable victims sometimes return to their abuses and that this does not necessarily undermine credibility and reliability.

However, in this case, the complainant’s actions are inexplicable given the limited ties to the defendant; their relationship was recent and short lived and they did not have children in common. In these circumstances, I find it hard to believe that she endured the abuse described because of her fear of the Children’s Aid Society. [ 28 ] The May 16 th incident, however, is entirely different. Certain facts are not in dispute: The defendant and complainant had consumed alcohol all day and argued in the evening. This argument concerned her continued association with a former partner.

This greatly upset the defendant. It is also clear that the complainant was injured in a violent confrontation on this evening. The injuries are proven beyond doubt by the photographs and observations Nurse Allen. These injuries are not self-inflicted or accidental. Somebody beat her. The defendant does not say it was a consensual fight or self-defence. He does not know what happened to her after she left his home, apparently unharmed. Yet, she was harmed. Mr. P.V.V. saw her in the early hours of the morning.

It was not suggested and there is no basis to conclude that he or somebody else assaulted the complainant. [ 29 ] The complainant’s testimony about 16 May 2014 is also supported by that of Mr. P.V.V. and Ms Wesse. Neither witness was seriously or successfully challenged by the respective parties. I am confident in relying on them. Mr. P.V.V.’s account of the complainant’s injuries is consistent with the photographs. Moreover, there is no reason to doubt his testimony about the time the complainant arrived at his home.

This corroborates the complainant’s testimony that she was at the defendant’s home for several hours. Similarly, I accept Mr. P.V.V.’s assertion that before this date the defendant had been angry with him because he had dated the complainant. This also supports the complainant’s evidence about his jealousy and, in turn, is corroborated by that of Ms Wesse, who commented on the defendant’s low self-esteem and difficulties with men; indeed, the defendant was also jealous of her contact with her former partner.

I am mindful of Ms Wesse’s criminal record, but I also note that she appeared as a witness for the Defence. I am confident in relying upon her. [ 30 ] The Crown has discharged its burden of proof with respect to the charges pertaining to 16 May 2014. Taken together, the evidence of the complainant, Mr. P.V.V., Ms Wesse, Nurse Allen and the photographs persuades me that the defendant is guilty of assault (count 1), forcible confinement (count 4) and threatening death (count 5). I note that count 1 covers an extended period of time. In accordance with these reasons, my finding relates to one day only.

Since it is admitted that on the dates in question, the defendant was bound by two probation orders to keep the peace and be of good behaviour, it follows that he is also guilty of these charges (counts 7 and 8). [ 31 ] I dismiss all other charges because I cannot confidently rely on the complainant for those allegations. While I accept the testimony of Mr. P.V.V. that the defendant sent messages to him about “the normal shit…threatening and that” and that this made him nervous, the lack of details means a conviction is not appropriate. Released: October 29, 2014 Signed: “Justice J. De Filippis”