Her Majesty the Queen - v. -, 2018 SKPC 69

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 069 Date: November 8, 2018 Information: 991032813 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - John Viveiros Pontes Appearing: S. Fillo For the Crown P. Fagan For the Accused Note: Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way.

JUDGMENT M.M. BANIAK , J [ 1 ] The accused stands charged as follows: 1) between the 20 th day of April, 2017 and the 4 th day of June, 2017 at or near Saskatoon, Saskatchewan did commit a sexual assault on L. L., contrary to

section 271 of the Criminal Code ;

2) without reasonable justification or excuse and with intent to obtain sexual contact with L. L. did induce or attempt to induce L. L. by threats to have sexual contact with her, contrary to section 346(1.1) (

b) of the Criminal Code ; Facts [ 2 ] The Crown’s first witness was the complainant, L.L. She is thirty years of age. She met the accused when she stayed at the Northwoods Inn Motel. She testified that she started living at the motel in the middle of May, 2017. She testified that her rent was $1,100.00 per month. [ 3 ] On June 1, 2017 she did not have her rent. Later that day she received a cheque for $525.00 from her social worker. She gave that amount to the front office. She also believed that she may have deposited the sum of $200.00 with the front office a week earlier.

According to her, “I didn’t know how I was going to get the rest. Maybe I was just going to stay till the middle of the month”. [ 4 ] When she gave the rent cheque to the person at the front desk, she was told to go out and speak with the accused who apparently wanted to evict her. She found him having a cigarette and watching t.v. She explained to him that she had no place to go and begged him to be understanding. She testified that they spoke for about twenty minutes.

The accused asked personal questions, including how many guys she had sex with. [ 5 ] She went on to say that: . . . he took me to the back area, past the restaurant, past two wooden doors, near the fire escape door. Two wooden doors, old VLTs. We stood near the VLTs. He felt my boobs, tits. I had marijuana in my boobs. He went inside my bra - to see if I was wired . . . he didn’t say or ask if I was wired. He didn’t ask if he could do this. I grabbed the marijuana and put it back in my boobs. [ 6 ] After this episode, according to her, he told her to come to his room around 10:00 o’clock to fuck.

He also promised her a minimum wage job. I went back to my room and told my friend Alana what he said. I was going to go to his room and do it to stay here. I was a prostitute. Alana said he was a creep. I got a two-litre cooler and drank half of it. [ 7 ] Around, or shortly after, 10:30 that night the accused telephoned L.L. and told her to come to his room. She did not go right away. Before long, a motel security person came to her room and told her that she had to leave.

She approached the accused in the lobby and pleaded with him to allow her to stay. [ 8 ] According to her testimony, the accused then went to the deli, got some Budweiser beer and they went to his room. They sat on the couch, she had one beer, and they watched t.v. The accused went to the bathroom and came out in his underwear and shirt. He then led her to the bedroom, which had two beds. She testified that she took her clothes off, but then had a change of mind and decided “it wasn’t worth it to sleep with him to stay,” and decided to put her clothes back on.

Before she could get dressed; he grabbed her and pulled her towards him and proceeded to get on top of her. She was unable to resist as he was holding her shoulders down. [ 9 ] The intercourse itself, she testified, was unpleasant and painful. As she was not aroused her vagina was dry and the accused’s penis was large. He refused to use a condom. [ 10 ] It is unclear from her testimony if the sexual intercourse ended or if it was interrupted. She testified as follows: I told him to finish tomorrow. He said we’ll just taken an intermission. I grabbed my clothes and went to the living room. He was in the bathroom.

[ 11 ] While still in his living room, she proceeded to call her sister and her uncle using the accused’s phone. She said that she wrote the time and date under the table. She then took a white coffee mug (apparently for evidence) and then left the suite. She stated that a security guard saw her coming out of the accused’s suite. [ 12 ] Around 11:30 p.m., she went looking for her friends. She spent some three hours doing this. At around 2:30 a.m., she went to her friend, Leslie Badger’s place. Ms.

Badger was not too interested in what happened to the complainant as she was entertaining a gentleman friend. [ 13 ] The complainant then went to her suite, took a bath and went to sleep. [ 14 ] On the next morning (June 2, 2017) L.L. called Egadz, an organization which has been supportive and helpful to her since she was a teenager. Sue, a worker at Egadz, encouraged her to go to a hospital. She contacted someone at the Outreach centre and they took her to City Hospital where she was examined.

While there, a police officer came and took a statement from her. [ 15 ] About a week later, or perhaps in July or August, she was advised that she had gonorrhea and HIV. She believes she was infected by the accused. [ 16 ] During cross-examination, the complainant testified that she drinks everyday because she is an alcoholic. She drank daily before she moved to the Northwoods Inn.

At one point she said her daily consumption is a mickey; but she also testified that she drinks 750 ml a day, which is twice the volume of a mickey. [ 17 ] At any rate, she believes that the alcohol helps her deal with an anxiety disorder.

She stated that she was sober in court; she said her last drink, as well as some crystal meth, was consumed before 11:00 p.m. the previous evening. [ 18 ] Notwithstanding this testimony, the complainant testified that she was sober on the day she was sexually assaulted. [ 19 ] She acknowledged that on a couple of occasions, the accused had warned her that she would be evicted if she allowed too many visitors into her suite who were drug users and partiers. [ 20 ] She also agreed with defence counsel that she was angry when she was evicted, and that she told the accused that she would charge him, stating: “I said in front of Gary and all his employees that I was going to charge him.” (For clarification purposes, it should be noted that “Gary” was her previous landlord). [ 21 ] She acknowledged that she had a claim against the accused: “I filled out a form asking for rent and damage deposit”.

She also demanded that the accused pay her $3,000.00 for a tv and a surround sound audio system. [ 22 ] She maintained that the accused fondled her breasts in the back room where the VLTs were, and promised that he would provide her with accommodation and a job in return for sexual favours. [ 23 ] The Crown’s second witness was Constable Dylan Kemp, a two-year member of the Saskatoon Police Service.

At the time of the incident he was, in his words, literally hours out of training. [ 24 ] He testified that on June 2, 2017, he was dispatched to City Hospital to take a witness statement from a complainant regarding a sexual assault. When he arrived at the hospital around 12:45 a.m., he met Dr. Gabruch, who handed him the sexual assault kit. Constable Kemp’s partner on this occasion was Constable Justin Thorsteinson, a senior officer with twenty-two years of service.

[ 25 ] Constable Kemp took a verbal statement from the accused at first, and then a five page written statement in the complainant’s own handwriting. [ 26 ] When asked, during cross-examination, if he received other items from Dr. Gabruch, Constable Kemp answered: “. . . pants, nipple swab; blood swab; vaginal swab sample; vaginal washing sample from complainant”. [ 27 ] He took these items, placed them in the exhibit storage rooms at the Saskatoon Police Station and maintained continuity of those items.

He advised that he was not requested to bring any of those items to court. [ 28 ] When asked by defence counsel whether he stated in the Occurrence Report that the complainant was intoxicated, he answered that those were his partner’s observations. In his opinion the complainant was not intoxicated. [ 29 ] The accused testified. He was characterized by his counsel as a 75 year-old man who has a heart condition, is hard of hearing and suffers from bronchitis. [ 30 ] Mr. Pontes testified that he owns and manages the Northwoods Inn and Suites Motel located at 610 Idylwyld Drive North in Saskatoon.

He met the complainant while she was renting a suite from him at the motel. According to his records, she stayed at Northwoods from April 20, 2017 to June 5, 2017, at which time she was evicted. This reason for her eviction was stated by Mr. Pontes as follows: We had a lot of problem with her right from beginning. She had a lot of people coming, half who looking drunks, okay, dopies, drugged. So we told her to stop . . . the front desk to her to stop otherwise she had to go. Then she come crying to me. And I told her no, you have to stop.

Then she didn’t stop and a couple days again into the same things all the time. [ 31 ] She was given multiple warnings, but nothing changed. According to Mr. Pontes, the complainant was very upset and angry when she was locked out of her room. [ 32 ] Mr. Pontes was asked these questions and provided these answers with respect to the alleged assault: Transcript p 68, lines 23 - 41, p 69, lines 1 - 20 Q . . . Did you -- did you ever communicate with L.L. in a sexual manner? A No. Q Did you ever say anything to her of a sexual manner? A No.

Q Did -- did you ever suggest to her directly or indirectly that if she had sex with you, that she could stay at the Northwoods? A No. Q Did you ever engage in sex with L.L.? A No.

Q And by sex, I mean any form of sex. A No. Q Sexual intercourse, sexual touching. A No. Q Did -- did you ever 1 touch her breast? A No. Q Anything -- A No. Q -- sexual at all? A No. Q Are you now or have you ever been HIV positive? A No. Q Okay. Do you have or have you ever had gonorrhoea? A No. Q And how can you be so sure? A Well, sir, because of my age, from time to time we have blood tests and, you know, because I have lung sickness, I get all of my heart conditions and everything, and they keep checking me, and I ’ m sure that if it was anything like that, the blood would show. So I don ’ t have that.

I know that. [ 33 ] Mr. Pontes acknowledged that he is not sure if the complainant had ever been in his office or his personal suite, but agreed that it was possible as various people seek him out everywhere when they have a problem to deal with. [ 34 ] He also acknowledged that his suite was searched in July, 2017, pursuant to a search warrant. [ 35 ] Defence had this exhibit marked as Exhibit D-1. [ 36 ] During cross-examination, Mr.

Pontes reiterated that the complainant was warned on a number of occasions about entertaining unsavoury guests in her suite, and warned that a continuation of this practice would result in her eviction. [ 37 ] He agreed that he had a discussion with the complainant where she begged him to be given another chance. He also agreed that some of these discussions may have happened in his office or in his suite, but he had no clear recollection of them. He remembered speaking with her on a couple of occasions in the restaurant.

[ 38 ] He denied that he had any discussions where sex for rent was discussed; he denied inviting the complainant to his room; he denied having sexual intercourse with the complainant; he denied forcing himself on the complainant; he denied fondling her breasts. [ 39 ] He rejected the suggestion that he promised the complainant a job. He denied directing any threats or promises at or to the complainant. [ 40 ] When asked about the configuration and lay out of his entire suite, his answers compared for the most part with the description provided by the complainant.

He also stated that surveillance cameras are “all over the place”. Position of the Parties [ 41 ] Defence put forth an argument that this is a classic he said/she said case. Credibility will have to be assessed - R v W.(D.) [1] will come into play. [ 42 ] To assess that credibility, it will be necessary to consider the evidence heard and to a certain extent, not heard. The Court needs to be objective and dispassionate. The complainant has had a very difficult life.

She experienced tragedy in her family; she is unemployed; she was engaged in prostitution as a teen; she is an alcoholic and drug addict who uses everyday. She’s dealt with venereal disease and is HIV positive. [ 43 ] That being said it is still necessary to subject the evidence to critical analysis in order to determine whether the Crown has proven its case beyond a reasonable doubt. [ 44 ] To assist the Court in this determination, defence offers the following for consideration: - the accused gave his testimony in a straightforward, candid manner.

His testimony was not seriously challenged, and, more importantly, was not discredited. He should be believed; - the complainant, some fifteen hours before testifying in court, was drinking heavily and using drugs. By her testimony, she drank 750 millilitres of vodka. She uses drugs and alcohol on a daily basis; - there is complete absence of physical evidence. She testified that there was forced sexual intercourse. The accused outweighs her by over a hundred pounds. She testified that her vaginal dryness, coupled with the accused’s large penis, made the sexual intercourse very painful.

Yet, there was no evidence of tearing, bruising or tenderness in the genital area; - a sexual assault kit was administered and a medical examination conducted, but neither yielded any evidence to support the complainant’s allegations; - a search warrant was executed on July 11, 2017, wherein a search was conducted of the accused’s suite. The search did not yield any relevant or consequential evidence. [ 45 ] The Crown submits that the complainant is a credible witness who placed her trust in a man whom she did not know well.

Lacking resources, she had to beg the accused to let her stay in his motel and she did so on at least two occasions.

[ 46 ] On the first occasion, during the afternoon of June 1, 2017, the accused took the complainant into the back area, behind the VLTs and fondled her breasts. She was able to describe the surroundings accurately and in great detail. She was very graphic in describing the unwanted fondling down to the smallest detail, such as the baggie of marijuana falling out. Her description of the surroundings was corroborated by the accused. [ 47 ] After this episode, the complainant and the accused arranged to meet around 10:30 that night.

In exchange for sex he would allow her to stay in her suite. [ 48 ] When she went to the accused’s suite, she was initially agreeable to having sex with him, but then changed her mind. The accused would not take “no” for an answer and proceeded to rape her. [ 49 ] The Crown points out that the complainant was able to clearly and accurately describe the living area and the bedroom in the accused’s suite.

This description was very similar to the description provided by the accused. [ 50 ] Crown concluded its submission by emphasizing the fact that the complainant made her allegations before she was evicted and not after. This would negate the suggestion that the eviction motivated the complaint. [ 51 ] The Crown argued that this, coupled with her consistent testimony, makes her a compelling and credible witness. Analysis [ 52 ] Sexual assault is an assault within any of the

definitions of that concept in s. 265(1) of the Criminal Code , which is committed in circumstances of a sexual nature such that the sexual integrity of the complainant is compromised or violated. [ 53 ] It is well established in jurisprudence that the test to be applied in determining whether the alleged conduct is sexual in nature is an objective one. [ 54 ] Further, this being a criminal trial, the accused is presumed innocent, and the Crown must prove his guilt beyond a reasonable doubt. [ 55 ] The concept of proof beyond a reasonable doubt is difficult to define or understand.

Courts always state that the standard is more rigorous than the balance of probabilities standard applied in civil cases, which is generally a greed as being “more likely than not” or, in other words, 50% plus 1. [ 56 ] The Supreme Court of Canada in R v Lifchus [2] at para 39 defined the standard as follows: A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not

required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [57] Further, for a criminal offence to be committed, the Crown has to establish the presence of an actus reus (the physical act thatconstitutes the offence) and the mens rea (the intent required to commit the offence). [58] The Supreme Court of Canada in R v Ewanchuk[3] defined actus reus of sexual assault as: [25] The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and(iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary.

The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behaviour: see R v Litchfield, (SCC), [1993] 4 SCR 333, and R vChase, (SCC), [1987] 2 SCR 293. [26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred. [59] In this case, there is not an issue regarding consent or mistaken belief in consent. The complainant alleges that she wassexually assaulted.

The accused denies that any physical contact took place. [60] In a case where there are conflicting versions as to what happened, we are guided by the three step approach recommended bythe Supreme Court in W.(D.) at page 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [61] In this case, as in many cases of sexual assault, the only evidence implicating the accused is the testimony of thecomplainant.

Similarly, as in this case, there are no eye witnesses, and the physical or other corroborative evidence is scant or non-existent. [62] Therefore, much depends on the reliability and credibility of the complainant’s evidence. [63] There are two components to credibility: (

a) credibility as sincerity: on this narrow

interpretation, a witness is credible to the extent that he or she is sincerely trying to tell thetruth; (

b) credibility as accuracy: on this broader view, a witness is credible to the extent that he or she is likely to be actually speaking thetruth.

[ 64 ] A witness who is sincere may still provide evidence which is inaccurate or unreliable. [ 65 ] Molloy J of the Ontario Superior Court of Justice, addressed this duality recently in R v Nyznik [4] at para 15 : Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth.

A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable.

Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt. [ 66 ] Finally, I believe that it is necessary to acknowledge that reliability may be affected by other factors. Passage of time may make it more difficult to remember details. Similarly, a witness who is under the influence of mind-altering substances - whether alcohol or drugs, or a combination of both - is at a higher risk of providing unreliable evidence. The greater the impairment the less reliable is the evidence. [ 67 ] With this in mind, I will now turn to the evidence presented at this trial.

The evidence as presented by the complainant points to two separate assaults on the same day committed some six or seven hours apart. [ 68 ] The complainant testified that around 4:00 o’clock on the afternoon of June 1, 2017, the accused fondled her breasts in the back room behind the VLTs. The accused then invited her to come to his suite around 10:30 o’clock that night. Although she went to his room with the idea of having sex, she changed her mind and wanted to leave.

The accused prevented her from leaving and proceeded to have sexual intercourse with her against her will. [ 69 ] I will deal with these two alleged assault separately. The 4:00 p.m. incident The evidence as it relates to this incident is relatively brief and it is preferable, I believe, to reproduce it in its entirety: Transcript p 15, lines 11 - 41, p 16, lines 1 - 41, p 17, lines 1 - 41, p 18, lines 1 - 27 Q So can you tell me about any discussion or any contact you had with John Pontes, then, on June 1st -- A Yeah. Q -- about your living there and the rent? A Yes. I can tell you everything.

I remember everything. I got back at, like, 4 o'clock in the afternoon and I had my rent cheque. I went to my hotel room or whatever, motel room, and then I waited a while. Then I went to the lobby and I gave the rent cheque to the front desk. Then they wanted me to sign it and they wanted me to talk to John 'cause he wanted me to -- he wanted me out of there. So I went to the lobby -- there's a lobby when you walk in the Northwoods. Then you turn left and there's, like, a deli area where they -- and then there's, like, restaurant and a TV.

He was sitting in the middle of the restaurant watching TV and having a cigarette. And then I told him I had the rent cheque. And so I gave it to him and then we were just -- I had to talk to him and I was crying. I had nowhere to go. Like, I -- I don ’ t have family that much, so I was trying to make him understand that I really needed a place to stay. And then -- and then

we were talking for, like, 20 minutes at this table. And the workers were in the lobby. There was just this one guy I know, I remember, but I don ’ t know his name, but he was there. But John said -- he started talking about how many guys I had sex with or if I -- Q What -- what did he say or what did he ask? A How many guys do I have sex with or how many guys I had sex with. And then -- Q What did you say? A I don ’ t remember. Q How did you feel when he asked that question? A I felt uncomfortable. Like, really uncomfortable. And then he said, Come here. And then we stood up.

I thought he was going to take me to, like, his office and, like, let me, like, sign my cheque or something or something to do with my rent. But instead he took me to the back area and he -- Q Can you explain what the back area is? What do you mean by that? Where is that? A Past the restaurant. You go through these two wooden doors and that goes to the fire escape door. And then there's the swimming pool. We were right in front of the fire escape door and he's feeling – Q So is that outside or inside? A Inside. Inside. Q Inside, right in front of the fire escape door? A M-hm.

And then he felt my -- Q What else is there? A There's just those two wooden doors, like an old saloon or something. Q Okay. A Like, and then where old VLTs were. And then there's this one glass shaped – like, it has a bunch of squares that goes to the -- the swimming pool. And then -- Q A glass door that goes to the swimming pool. A Like, a glass window -- Q Okay. A -- like, with a bunch of squares and stuff. Like, you can't see through it, like, 'cause it's so thick like that. And then on the left is this door that goes to outside and it says exit.

And he just -- we just stood there where the VLT – VLTs were and he felt my boobs. And I think he's feeling to see if I was wired because -- and I wasn't expecting it because -- Q Okay. So did you know he was going to do that before he did that? A No.

Q When you say he felt my boobs, boobs means what? A He – Q What's the other word for boobs, please? A I don ’ t know, tits. Q So that we know what you're talking about. A Tits. I don ’ t know. These things. MR. FAGAN: I don ’ t mind my friend leading her in this area. Q MS. FILLO: You're pointing to the breast area. A Tits, boobs, breasts. I don ’ t know. Q Okay. We're just -- I just -- A And then I wasn't expecting it 'cause I had drugs in my boob. I had marijuana in there. And it fell out on the floor. So -- Q Okay. Tell me -- just tell me or show me with your hands what he did when you say he felt your boobs.

Is this outside your clothing, inside your clothing? Just give us some description, please. A Like, he went into my boobs and he felt both of inside my boobs. Like, my -- inside my bra -- Q What -- A -- to see if I was wired. Q So -- A 'Cause I -- Q -- you just demonstrated putting hands -- you said, felt inside your bra -- A Yes. Q -- on both sides. A Yeah. Q Did he say that or you were just thinking that he was checking for wires? A No, he didn ’ t say that. But I ’ m -- I -- I knew he was checking for wires 'cause -- I don ’ t know, lots -- lots -- Q So did he ask your permission if he could do that --

A No. Q -- before he did that? A No. Q Did you consent to that? A No. Q Okay. A I wasn't expecting it at all -- Q So -- A -- 'cause he seemed like a nice person. Q And so you said something fell out of your bra. A Marijuana. Q Okay. And then what happened next? A I grabbed it and then I put it back really fast. And then he said come to his room at 10:30 that night. Q For what reason? Did he say at that time what reason? A So that we could fuck. And then I would be able to get a minimum-wage job there and I'd be able to keep my room. 'Cause he was threatening to kick me out the same day that I paid my rent.

Q By fuck do you mean sexual intercourse? A Yes. [ 70 ] The accused, while testifying in-chief, and during cross-examination, denied that any touching of a sexual nature took place. [ 71 ] In assessing the complainant’s testimony with respect to her encounter with the accused on the afternoon of June 1, 2017, I am impressed with her recollection of what happened, both as to what was said and the detailed description of the motel’s layout leading from the front lobby to the restaurant and to the room at the back of the VLTs. She described two wooden, saloon style doors.

She recalled a window or wall construction made up of thick glass squares through which you could not see to the swimming pool. [ 72 ] She testified that she went to purchase alcohol after this episode. There is no indication that she was under the influence at this time. [ 73 ] She described in great detail how the accused touched or fondled her breasts. She indicated that during the course of this touching a baggie of marijuana which she had hidden inside her bra was dislodged and fell out. She believed that his touching of her breasts resembled a search for wires.

She appeared to be more surprised or startled than traumatized by this action.

[ 74 ] Her testimony with respect to the afternoon episode was not seriously challenged or materially discredited. I believe her. Her testimony was both credible and reliable. I find that the Crown has proven its case beyond a reasonable doubt with respect to this sexual assault. [ 75 ] I now turn my analysis to the alleged sexual assault during the night of June 1, 2017. [ 76 ] I believe that the complainant was in the accused’s suite. I also believe her testimony that she went there with the understanding that she and the accused would have sex.

She testified that she drank about one half of a two-litre alcoholic cooler prior to going to the accused’s suite. Once in the suite, she had one beer. During cross-examination she acknowledged that she took drugs regularly. [ 77 ] After getting undressed, the complainant changed her mind and decided that she did not want to engage in sexual intercourse with the accused. The accused, however, did not allow her to leave and raped her.

When the intercourse ended or was interrupted, she made her escape. [ 78 ] Unlike her testimony of what happened during the afternoon of June 1, 2017, her account of what happened on the night of the same day is less coherent. It is not as straightforward, and more difficult to follow. [ 79 ] She testified that when she tried to leave the accused grabbed her clothing, forced her on the bed, lifted her legs and held down her shoulders. Her resistance was futile. I had occasion to observe the accused in court over the course of two days.

He is seventy-five years old, significantly overweight, moves slowly and has some difficulty in walking.

He does not strike me as being particularly agile or athletic. [ 80 ] After the intercourse was completed, or perhaps interrupted, she testified that she got dressed, made a couple of phone calls, using the accused’s phone (one to her sister and one to her uncle, neither of whom were home, but who apparently remember that she called them), wrote under the table the time and date that she was there, took a white coffee mug (as evidence) and left. [ 81 ] From 11:30 p.m. to about 2:30 a.m. on June 2, 2017, she was looking for friends. There was no indication who these friends were and where she looked for them.

Around 2:30 a.m. she went to visit her friend L. B., but did not stay there very long. The next morning she attended City Hospital where she was examined by Dr. Gabruch. Constables Kemp and Thorsteinson also attended. [ 82 ] The complainant also testified that she believes the accused infected her with gonorrhea and HIV. [ 83 ] Having regard to all of the above, it is noteworthy, I believe, to comment on the evidence which was not presented at trial: - no medical reports or viva voce evidence from any medical personnel; - no “rape kit” results; - no clothing; - no DNA evidence;

- no incriminating evidence found by police upon execution of the warrant and search of the accused’s suite; and - no testimony from L.B. or any of the Egadz people. [84] For whatever reason, the Crown was unable or chose not to tender this evidence. I cannot speculate as to the nature of thisevidence. However, the Crown bears the burden of proving the offence alleged beyond a reasonable doubt - absence of evidence cangive rise to reasonable doubt. [85] Finally, the complainant alluded to the likelihood that she contracted the HIV and gonorrhea virus from the accused.

Theaccused testified that he does not suffer from these diseases now or ever. It is possible for a healthy person to have sex with an infectedperson and not become infected himself, but it is not possible for a healthy person, free of any viral infections, to infect another healthyperson. [86] After having considered all of the above, I am not convinced beyond a reasonable doubt as to the guilt of the accused of thesecond sexual assault and I find him not guilty in relation to that incident. [87] Next, I will deal with count #2 of the Indictment.

Section 346 of the Criminal Code deals with the offence of extortion. Forthis offence to be proven, it must be established that an accused, without any excuse or justification, and with intent to obtain or gainsomething, induced or attempt to induce another person by means of threats or violence to do anything or cause anything to be done. [88] The evidence presented at this trial falls short of establishing this offence.

Even if the accused suggested or proposed to thecomplainant that they have sex, but did not use any threats or violence to get her to agree to have sex, this offence is not made out. [89] The complainant testified that she at first agreed to have sex with the accused. This evidence negates any suggestion that theaccused threatened her before she agreed to have sex. [90] I find him not guilty of count #2 of the Information. ____________________ M.M.

Baniak, J [1] (SCC), [1991] 1 SCR 742; 63 CCC (3d) 397 [W.D.] [2] (SCC), [1997] 3 SCR 320, 118 CCC (3d) 1 [3] (SCC), [1999] 1 SCR 330, 131 CCC (3d) 481 [4] 2017 ONSC 4392, 350 CCC (3d) 335