R. v. Rose, 2012 NSSC 178

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Rose , 2012 NSSC 178 Date: 20120307 Docket: CRH 358560 Registry: Halifax Between: Her Majesty the Queen v. William Ernest Tiger Rose LIBRARY HEADING Restriction on Publication:

Section 486.4 C.C.C. (Sexual Assault) Judge : The Honourable Justice M. Heather Robertson Heard: February 14, 15 and 17, 2012, in Halifax, Nova Scotia Written Release of Decision: June 4, 2012 (Verdict - March 7, 2012) Subject: Sexual assault, sexual assault causing bodily harm and breaches of conditions.

Summary: Mr. Rose was charged with five offences of committing a sexual assault upon A.M. with the use of a weapon (the 1.5 litre port bottle), contrary to s. 272(1) (

a) of the Criminal Code , sexual assault causing bodily harm contrary to s. 272(1) (

c) being at large on his recognizance entered into on May 30, 2011, having been bound by the condition to keep the peace and be of good behaviour, failure to comply with the condition to have no direct or indirect contact or communication with A.M., and breach of his probation order issued on January 25, 2010 to keep the peace and be of good behaviour. Issue: Had the Crown proved its case for the sexual assault offences beyond a reasonable doubt. Result: Not guilty of the sexual offences, guilty of the breaches.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R. v. Rose , 2012 NSSC 178 Date: 20120307 Docket: CRH 358560 Registry: Halifax Between: Her Majesty the Queen v. William Ernest Tiger Rose Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication:

Section 486.4 C.C.C. (Sexual Assault) Judge: The Honourable Justice M. Heather Robertson Heard: February 14, 15 and 17, 2012, in Halifax, Nova Scotia Decision: March 7, 2012 (Verdict) Written Release of Decision: June 4, 2012 Counsel: Alicia Kennedy, for the Crown Luke Craggs, for the Accused

Robertson, J. : (Orally) [ 1 ] On the night of May 30, 2011, the complainant A.M. alleges that William Ernest Tiger Rose sexually assaulted her following a period of consensual sex, when he grabbed her by the hair and forced her to have oral sex with him and then continued the assault by forcing a 1.5 litre empty port bottle in both her vagina and her anus for period of time exceeding one hour. Ms. M. and Mr. Rose had only known one another for three weeks. [ 2 ] Mr. Rose did not testify at this trial. [ 3 ] The Crown has the burden to prove each of the elements of the offences with which Mr.

Rose is charged, beyond a reasonable doubt. This burden never shifts to the accused. He is to be presumed innocent throughout the trial, until the court having considered all the evidence, is satisfied that the Crown has proven each and every one of the elements of the offences beyond a reasonable doubt. [ 4 ] In this case, Mr. Rose is charged with five offences of committing a sexual assault of A.M. with the use of a weapon (the 1.5 litre port bottle), contrary to s. 272(1) (

a) of the Criminal Code , sexual assault causing bodily harm contrary to s. 272(1) (

c) being at large on his recognizance entered into on May 30, 2011, having been bound by the condition to keep the peace and be of good behaviour, failure to comply with the condition to have no direct or indirect contact or communication with A.M., and breach of his probation order issued on January 25, 2010 to keep the peace and be of good behaviour. [ 5 ] I accept the complainant ’ s evidence that on the evening of May 30, 2011, the accused called her and invited her to his apartment at 109 Albro Lake Road in Dartmouth. I accept that after her arrival at approximately 6:00 p.m. the complainant Ms. M. and Mr.

Rose began drinking. There was ample evidence of the large quantities of both beer and port that had been in the apartment when the police executed a search warrant on the premises on June 2, 2011 and seized evidence, in particular the 1.5 litre empty port bottle that later was proved to have Ms. M. ’ s DNA on it, from her blood, as well as some fecal-like material and a lubricant or gel-like substance. [ 6 ] It is also obvious from the evidence that Ms. M. and Mr. Rose engaged in consensual sex that evening.

To secure a conviction however the court must prove beyond a reasonable doubt that there at some point in time was a lack of consent by the complainant to part of the oral sex and what the complainant described as the “ bottle sex. ” [ 7 ] Like most sexual assault cases Mr. Rose and Ms. M. were alone when these events are alleged to have occurred. Ms. M. has been adamant in both her direct and cross-examination that she did not consent to his pulling her hair and forcing continued oral sex upon her or to his insertion of the bottle in her vagina and anus.

She testified that after more than an hour of this activity she was so tired and traumatized that she fell asleep beside Mr. Rose, between 9:00 and 10:00 p.m. She testified that he said he was sorry after it was over, just before she fell asleep. She awoke in the morning and simply left the apartment and returned home at approximately 9:00 a.m. [ 8 ] She testified that she had been wearing grey jogging pants and by the time she got home, they were full of blood. After showering and cleaning up she put on a pair of capri pants.

She testified that she slept most of the day and was in excruciating pain in the vagina and rectum area, that she could not walk well for two weeks and continued haemorrhaging blood for two weeks. She testified that she could not be treated because it was too painful and that she has pain in that area even at this time and was going to seek treatment again. Ms. M. ’ s clothing – the two pairs of bloody pants are in evidence. [ 9 ] It is also obvious from the evidence that Ms. M. and Mr. Rose had a stormy though short-lived relationship.

She testified to three events: that of May 27, 2011 when she testified “ he tried to choke me on the throat ” which resulted in the no-contact order against Mr. Rose on May 30, 2011; the sexual assault of May 30, the subject of these charges; and the breakup between them which occurred the day following these events on May 31, 2011. Ms. M. testified that she returned to 109 Albro Lake Road and wanted to breakup face-to- face. There were other people there and she testified he threatened her, bringing his fist within inches of her face and then followed her part way home.

She testified she called the police on June 1, 2011 after taking a little time to think. She then attended the QEII hospital at 11:15 p.m. on June 1 and was examined throughout the early morning hours of June 2 and next attended the police station to give her statement between 7:00 a.m. and 9:00 a.m. on June 2, before then returning to the women ’ s shelter. [ 10 ] Ms. M. admitted on cross-examination that she suffered from an alcohol and crack cocaine addiction and entered a

rehabilitation programme in June 2011, not long after these events. [ 11 ] On the one hand, there is evidence that supports Ms. M. ’ s testimony concerning the alleged assaults in the independent forensic evidence before the court. [ 12 ] Photograph #3 of exhibit 17 shows a red spot at the back of her head consistent with her hair being pulled forcibly. This exhibit also clearly shows bruising on her back, breasts, abdomen, thighs and legs. [ 13 ] The SANE nurse, Ms.

Wilson, testified as to the tenderness in cervical area and how she was unable to perform the internal examinations of the vagina and anus, because Ms. M. said she was in too much pain to allow it. While there was redness in this area there were no other visible injuries. [ 14 ] Constables Nielsen and Withrow who were present and observed Ms.

M. on June 1 and June 2 noted that she appeared is some discomfort while sitting or walking. [ 15 ] There was blood found on the bed sheet at 109 Albro Lake Road, not a great amount but some small amount. [ 16 ] The bloody grey jogging pants and blue capri pants are also exhibits. [ 17 ] The forensic evidence, exhibit 5 and exhibit 8 prove Ms. M. ’ s blood is on the pants and the bottle. [ 18 ] On the other hand, there are issues that arise from Ms.

M. ’ s own testimony on direct and cross-examination that worry me, as I consider my obligation to be assured beyond a reasonable doubt that these events unfolded as Ms. M. has testified. [ 19 ] The defence counsel on an aggressive cross-examination challenged Ms.

M., in part by the grammatical complexity of the questions advanced and in part by agitating her so that her replies were defensive and demonstrated some frustration, confusion and concern that she was not being believed. [ 20 ] The defence however has advanced 26 instances in which they say the complainant was lying. [ 21 ] Although I am not in agreement with all of their submissions, I believe the defence has successfully challenged the reliability of the complainant ’ s evidence on a few key points. [ 22 ] But first let me address Ms. M. ’ s general demeanour. [ 23 ] The complainant Ms. M. is different.

She is 38 years of age but seemingly younger and also childlike in manner, exhibiting some naiveté, some childlike stubbornness and childlike resistance, and is quick to outburst when challenged on cross-examination. Yet she is not a child. She finished grade 12 and completed a culinary arts course at the Nova Scotia Community College in Kentville, Nova Scotia. However, she does not work. She is well-spoken and seemingly intelligent.

However, she presents as more of a girl in her late teens than a 38-year-old woman. [ 24 ] I have no evidence before me of any disability or mental challenges she suffers, of either cognitive or emotional impairment. Clearly Ms. M. has had a troubled background. She is not quite right. She is both anxious and vulnerable. Childlike is the best description. [ 25 ] Although I believe her testimony to be largely truthful, I have concerns that her recollection of events in the period between

May 27 and June 2, and her testimony in court during this trial, may be to some degree confused or inaccurate. For example, some of the 26 areas of her testimony the defence argues are a problem. [ 26 ] Clearly Ms. M. has a problem with the time frames of the evening. She insisted that soon after her arrival Mr. Rose in a 40- minute period drank 22 beers and a full 1.5 litre bottle of port. She also insisted that her that her own alcohol consumption was a mere two beers and a half of a cooler.

Later in cross-examination she testified that she had showed the police officers on May 27, the two beers and part of a cooler. I have some doubt about Ms. M. ’ s actual liquor consumption on May 30 and her recollection of it, particularly in light of her entering a rehabilitation programme soon after. [ 27 ] She testified that “ he made me drink ” and said she “ liked to be aware when around him because if you knew what he could do to others when he was drinking. ” But then she testified, “ he was never that way with me per se but with others ” although she agreed she had only known him for three weeks.

She also testified that Mr. Rose would not permit her to use crack. [ 28 ] Ms. M., when challenged why she would agree to go to his apartment on May 30, after the choking incident of May 27, testified she was not afraid of Mr. Rose and was never told by the police that there was a no contact order. This evidence seems a little implausible to me. [ 29 ] There are inconsistencies between the statement she gave the police on June 2 and her testimony. For example: 1. She first told the police the sex had been consensual except for the bottle sex. 2.

She first told the police she had not seen the bottle then later on saw the bottle “ filled with blood. ” 3. She told the police “ he could have put it in my vagina ” as well as her anus, but in her testimony she was certain he had done both taking the bottle “ in and out of her vagina and anus many times. ” [ 30 ] Ms. M. ’ s testimony is that the only sexual assaults took place on May 30 , yet the SANE nurse Mr. Wilson testified that Ms. M. reported she had been sexually assaulted on May 27, 30 and 31 by her partner. Ms.

Wilson testified that there was therefore only a 72- hour window in which to effectively carry out a SANE examination. Ms. Wilson made a notation of the three sexual assaults “ because ” she testified, “ I would have that understanding from the patient. ” But then she was less certain saying Ms. M. had also reported a physical assault to the police and a sexual assault. [ 31 ] There is an issue with respect to Ms. M. ’ s testimony that she did not know what dilaudid was, yet according to Ms.

Wilson ’ s testimony she did accept dilaudid taken in two small doses and discussed dilaudid with her due to her admitted addictions. Oddly she also testified that a doctor “ wouldn ’ t give me an anaesthetic to heal my injury. ” [ 32 ] Ms. M. may be prone to some exaggeration, for example “ the bottle full of blood ” or when she testified that she had seen bloody swabs from the SANE examination but this in fact was not the SANE evidence. [ 33 ] Ms. M. said on direct that Mr.

Rose did not use any lubricant before inserting the bottle, yet two witnesses have testified there was a gel-like substance on the neck of the bottle. [ 34 ] In some of her evidence Ms. M. is adamant about details that seem otherwise implausible. For example, the amount of liquor Mr. Rose could consume in 40 minutes, her ability to see the grey clock on the desk during the assault, although she was lying face down on the bed and was 180 degrees from the location of the desk. [ 35 ] She was also adamant that she asked the police to let her rest and provide a statement later after leaving the hospital but the

police insisted she go to the HRM police headquarters. This was not confirmed by the police testimony. [ 36 ] The defence raises motive as an issue, that the complainant is untruthful because the break up was not mutual but a rejection by Mr. Rose, that Ms. M. wanted vengeance and wanted Mr.

Rose imprisoned “ for as much time as possible. ” [ 37 ] The defence points out that the blood, largely in her clothing could as easily be from her menstrual cycle and is not supported by evidence from the SANE nurses that they saw any bleeding from the anus or vagina. [ 38 ] Although I cannot necessarily ascribe ill motive arising out of the evidence of Ms. M., I do wish I had a better understanding of her various responses during trial. Nevertheless, it is my duty to be satisfied beyond a reasonable doubt that these events occurred as she has related in her evidence. I do not think Ms.

M. a liar, but I am concerned with the reliability of her evidence. [ 39 ] The Crown does not need to prove guilt to an absolute certainty. That would be an impossibly high standard, but the words “ near certainty ” are often used. I must be “ sure ” that these sexual acts complained of were without Ms. M. ’ s consent, or I must acquit. [ 40 ] I can say that from my examination of all the evidence before me, I believe it is both quite likely and probable that Mr.

Rose committed these sexual assaults, but I am unable to say with “ sureness ” or “ near certainty. ” In other words I am unable to say I am satisfied beyond a reasonable doubt that these events occurred as Ms. M. has testified. Therefore, I must acquit Mr. Rose on the two charges of sexual assault. [ 41 ] However, I am satisfied beyond a reasonable doubt that the Crown has established counts three, four and five on the Indictment, for which I find Mr. Rose guilty. Justice M. Heather Robertson