R. v. Diasso, 2011 ONCJ 175

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 486.5(1) or (2) of the Criminal Code . These subsections 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 486.5(1) or (2) , read as follows: 486.5 Order restricting publication — victims and witnesses. —

(1) Unless an order is made under

section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) Justice system participants. — On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice. . . . 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.: Sudbury 101357 DATE: 2011-01-25 Citation: R. v. Diasso , 2011 ONCJ 175 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — FALALOU DIASSO Before Justice André L. Guay Heard on November, 2010, January 24, 2011 Reasons for Judgment released on January 26, 2011

Karen Lische ............................................................................................................. for the Crown Michael J. N. Haraschuk ................................................................... for the accused Falalou Diasso GUAY J.: REASONS FOR JUDGMENT [1] Falalou Diasso is a 31 year old Canadian resident, originally from Togo. He is charged with sexually assaulting J. G.on April 19, 2010. He is also charged that on the same occasion he illegally confined her and that on that day and the following day,April 20, 2010, he harassed J. G. To these charges, sexual assault contrary to

section 271 of the Criminal Code, harassment contrary tosection 264(1) of the Criminal Code and confinement contrary to section 279(2) of the Criminal Code, he pleaded not guilty. [2] I have considered and weighed all of the evidence. In doing so, I have been guided by the principles set out by theSupreme Court of Canada in the well-known case of R. v. D.W. (1991), (SCC), 63 C.C.C. (3d) 397(S.C.C.) in whichCory J set out the principles to guide trial courts in cases where credibility is a major issue.

In applying the direction of the SupremeCourt in this matter, I have also borne in mind, as the law tells me I must, the principle that the burden of proving guilt in any criminalmatter rests solely on the Crown. The Crown must prove the guilt of an accused beyond a reasonable doubt. [3] I have also considered the case law cited by the accused and, in particular, the decisions of the Ontario Court of Appealin R. v. Riley (1979), O.J. No. 1007 (C.A.), R. v. W.S. (1994), (ON CA), 90 C.C.C. (3d) 242 (O.C.A.) and R. v. Gostick(1999), (ON CA), O.J. No. 2357 (C.A.).

I understand from this jurisprudence the clear principle that credibility is notto be determined on the basis of a witness’ sincerity but rather on the basis of the reliability of a witness’ testimony. When the evidenceof the accused and the complainant conflict, it is not a matter of deciding which one to believe but whether, on the basis of the evidenceas a whole, the crown has proven guilt beyond a reasonable doubt. [4] The accused took the stand in his own defence. He testified that he met the complainant, J.

G., on Cedar Street in theCity of Greater Sudbury sometime between 3:45 and 4:00 p.m. on April 19, 2010. He said that after his appointment with the CanadianImmigration authorities at a building on an adjoining street, he went to his car, got into it and lowered the driver and passenger sidewindows. He noticed the complainant looking at him and proceeded to pull out into the street. He testified that as he made a right handturn from Cedar Street onto nearby Lisgar Street, the complainant came towards him. He said he stopped shortly after turning the cornerof the intersection next to a hot dog vendor.

He stated that the complainant asked him for a lift, even though he was going in the oppositedirection uptown and she was going downtown only two blocks away in the opposite direction. [5] According to the accused, the complainant gave him her cell phone number. The accused refused to give her either hiscell phone number or his name. He reports to having had a conversation in his vehicle with the complainant indicating that it was a bigday for him since he had just been granted Canadian residency.

He said he told her he would like to have joined her in her plan to drinkand smoke weed if he did not have to return work. The accused then returned to work until 6:00 p.m. [6] After the accused finished work, he contacted J. G. She did not at first recognize who was calling her. He suggestedthat she come over to have dinner with him. She told him that she had purchased dinner and was on her way home to eat it. The partiesagreed that the accused would pick the complainant up at her place around 8:00 o’clock later that evening.

It is clear that at this point hedid not inform her that he had a later rendez-vous with another female person, whose name we would learn was Amanda. [7] When the accused did pick J. G. up, his evidence was that they first went to get marijuana at the home of thecomplainant’s drug dealer and then proceeded to a medical clinic to have his sore right ankle attended to. He had allegedly recently hurthis ankle playing soccer. He wanted to have it looked at and to get medication for the pain it was causing him.

It is clear that both heand the complainant went to the clinic (he had been there earlier) and subsequently to the adjoining pharmacy to obtain medication torelieve the pain and discomfort caused by his sprained ankle. The evidence makes it clear that while the accused did suffer a sprain tohis right ankle which hampered his soccer activities, he was still able to get around on the ankle without needing a crutch or othersupportive device. Clearly, however, he favoured his right ankle.

Despite this injury, he was able to walk around downtown Sudbury,his workplace, his apartment and apartment building. [8] The evidence establishes that the complainant and the accused arrived at the accused’s apartment on Prete Street in theCity of Greater Sudbury shortly before 9:00 o’clock p.m. The complainant’s intention in going to the accused’s residence was to hang outwith the accused and smoke weed with him. The accused, notwithstanding his protestations, understood that he and the complainantwould be consuming marijuana and alcohol.

I find as a fact that both the accused and the complainant smoked marijuana on the balconyof the accused’s apartment and that the complainant did not consume alcohol. The accused, in fact, acknowledged that the complainantdid not drink alcohol that evening. [9] The complainant testified that the accused consumed four or five drinks. I accept her evidence on this point. Theaccused brought out alcohol but served the complainant, at her request, water. It was clearly not her intention to consume alcohol.

While the complainant had as her purpose to socialize with the accused, I think the accused’s conduct suggests that his intentions weredefinitely more amorous in nature. The parties were clearly not in agreement on the purpose of the complainant’s visit. [10] All went well with the encounter between the parties until they finished consuming the joint of marijuana they weresharing on the balcony. While each tried to maintain that they had had just a puff or two, I find as a fact that they at least shared a joint.

I find that when they came back into the apartment, the accused gave the complainant a tour of his apartment. There is somedisagreement between the parties as to what happened when they got to the accused’s bedroom, but I think it is clear that the complainant

did not go into the bedroom, at least not then. By his own admission, the accused did go into the bedroom, passing under one of the complainant’s arms as she rested it on the door frame. The complainant was adamant that the accused told her that once he had lain on his bed, it was not his practice to leave it. The complainant did not waiver on this point in her examination in chief and cross- examination. I accept her testimony on this point. The accused admitted himself that he went into his bedroom to rest his sore ankle. This, I find, was not a credible explanation of his actions.

Had this been his real purpose, he could easily have returned to the living room couch to do so. That he did so was, I find, a suggestive act more consistent with his behaviour as described by the complainant. A bedroom is not an ordinary room in a residence, particularly when a male person and female person find themselves alone there. [ 11 ] After refusing to enter the bedroom, I accept that the complainant went back to the living room to sit down. It must be recalled that at this point the television was on and a program was showing called “Two and a Half Men”. This program had started at 9:00 o’clock p.m.

According to the accused’s evidence, he had come in from the balcony after smoking marijuana sometime in the middle of the program (i.e. 9:15 p.m.), turned on the television and briefly started watching the program. It was at this point, I find, that the tour of the apartment took place. [ 12 ] Upon returning to the living room, it seems clear from the evidence that the parties did not sit close together on the couch, although the accused wanted this to happen.

The complainant stated that the accused’s conduct up to this point, particularly with respect to the bedroom visit, had made her feel uneasy, as had the accused’s voice and demeanour. She found him uncomfortably pressing and assertive. [ 13 ] According to both parties, there was contact between them near the living room couch after the accused had left the bedroom and followed the complainant to the couch.

I accept the complainant’s evidence that at this point she put on her sweater (hoodie) as she felt somewhat exposed without it given the accused’s behaviour and advances toward her. [ 14 ] I find as a fact that the incident which prompted the charge of sexual assault took place at the end of the television program the parties were watching. I accept also that the accused more than once told the complainant that she was acting like a little girl. According to the complainant, she told the accused that she was 27 and was there to hang out, not fool around.

The accused’s “little girl” comments suggest that she was not behaving in the manner that he anticipated and wanted. What other credible reason could he have had to say she was acting like a little girl? Her behaviour with the accused seemed normal enough, even though her idea of hanging out may have been naive in the circumstances. It was the complainant’s evidence that when she was sitting on the couch at the end of program, she had placed both her hands in the pockets of her jeans. The accused himself admitted that he offered her a hug around this time, which she declined.

According to the complainant, the accused asked for a kiss as he was standing before her. She refused and, as the complainant said, he tried to lift her up. When he did so she turned her face away from him. That was when, she testified, he bit her. [ 15 ] While there is little, reliable forensic evidence that the accused’s mouth made contact with the left breast area of the complainant’s hoodie and while there does not seem to have been any bruising as a result of what the complainant referred to as a bite, in light of all of the evidence, I accept that the accused did bite her on her left breast.

I believe that his action may have been provoked by his frustration at being unable to lift her up as a result of the pain occasioned to his right ankle in carrying out this gesture. Clearly it was an angry act with sexual overtones. The accused seemed frustrated by how the evening had gone. [ 16 ] What followed next was that the complainant was filled with panic and took steps to leave the apartment. I accept as a fact that at some time before the bite incident occurred, the accused had gone into his kitchen to either get a mix or ice for his drinks.

The handle to his apartment door was not locked when the complainant put on her shoes and grabbed her purse to leave. She testified that she had unlocked it when the accused absented himself momentarily in the kitchen. [ 17 ] It is clear that when the complainant left the accused’s apartment, she did so in a panic. She left hurriedly, with the accused being unable to follow her at the pace she was moving.

I accept that he may have called after her, but that I do not accept that she turned and had a discussion with him about whether she was to stay with him and whether they were to remain longer together in the apartment as a condition of her turning back. Again, this would have been totally inconsistent with what had just happened in the apartment and with the accused’s behaviour leading up to that incident. Once outside, and to the two women to whom she immediately spoke upon exiting the building, the complainant was clear that she had been sexually assaulted and was very much afraid of the accused.

The accused’s attempt to suggest that the complainant’s behaviour was angry and the result of his sarcasm does not make any sense whatsoever. It does not have an air of reality to it, unless, of course, the complainant was irrational. This is not what one of the women, J. B., witnessed nor what the complainant’s roommate, C. G., observed.

They realized she was upset and clearly why she was so and did not treat her as a “crazy person” or a delirious one. [ 18 ] The accused testified that when he saw the complainant with two other women at a residence across the street from his apartment, he only stopped for five seconds on the street before deciding to go on to his next date with A. J. B.’s evidence was that the accused parked his car in front of her daughter’s driveway and that he stayed there for 20 to 30 seconds, until, it appears, J. B. tried to take a cell phone picture of his vehicle.

I reject the accused’s version of events about what happened when he emerged from his apartment building parking lot or garage and I accept the evidence of J. B. in this respect. [ 19 ] According to the accused, he stayed with Amanda for almost three hours at a local Tim Horton’s coffee shop. According to his evidence, they remained seated either in his vehicle or on the hard seats of that establishment throughout this time. He did not complain about his sore ankle and having to rest it on a bed or, as in the police cell the next day, elevate it with blankets. [ 20 ] J.

B., the lady to whom the complainant spoke once she fled the accused’s apartment building, noted that the complainant was crying, shaking and afraid when she talked to her. Indeed, according to J. B., fear seemed to be the predominant emotion exhibited by the complainant not irrationality. She noted the complainant’s reaction when the accused parked his car in front of her daughter’s residence where she had been visiting. J. B., I find, was unsure and probably mistaken as to what breast the complainant told her the accused allegedly bit.

The complainant was quite clear to the investigating officers who came over the next morning that she had been bitten on her left breast. Her evidence given at that time was certainly more accurate than anything she said subsequently or told anyone else.

[ 21 ] I note that the complainant did not act in anger but in fear when she called the Greater Sudbury Police Service to complain about the incident which had occurred on the evening of April 19, 2010. She had been advised to do so by J. B. as well as by C. G., her roommate and a male friend. It took, however, a text message from the accused the next morning to spur her into action and reignite the panic she experienced the night before. [ 22 ] The accused attempted to portray J. G. as a “crazy person”. He described her this way to the investigating officer, Ryan Johnson. According to the accused, J.

G. orchestrated the whole situation, she had a friend who was a drug dealer, she bought the marijuana for her own use and she was angry at being humiliated by him. He contended that she fabricated this whole episode out of some desire to get revenge on him. The accused’s explanation of his conduct does not fit the facts of this case. It really does not make much sense. According to his evidence, it was the complainant who singled him out and wanted to move into a quick relationship with him.

It should be noted that the manner in which he had met A., earlier that very day was very similar to the method by which he met the complainant. It is clear that he took the initiative to meet a woman in each of those cases. [ 23 ] While I am puzzled about the complainant’s allegation that the accused dragged or forced her into his bedroom and threw her on the bed, I do not think this detracts from her evidence that the accused’s conduct over the course of the time they were together in his apartment led her to become increasingly very uncomfortable about his behaviour.

Other than the complainant’s bare allegation that this occurred, there was little evidence to corroborate it. It or something like it may have occurred, but I do not place much weight on this part of the complainant’s testimony. I otherwise find the bulk of her evidence credible. Any allegation that the accused and the complainant had been intimate or wanted to be intimate came from the accused. The complainant denied this and I accept her evidence on this point. While intimacy may have been on his agenda, I do not believe it was on J. G.’s agenda.

While she was confused about a few of the details respecting what happened that evening, she was consistent on the important points. Anger at having been slighted and put off in favour of another woman or women, as alleged by the accused, does not seem to have been a motive for her making a complaint to the police. [ 24 ] I will now deal with the remaining charges of confinement and harassment. [ 25 ] As to the charge of confinement under section 279(2) of the Criminal Code , I do not find that there is sufficient evidence to make out this charge.

It may have been that the accused put his hand on the door jam or the door handle of his apartment as the complainant was in the process of leaving but, clearly, if this were the case, the complainant could not have exited the apartment. While the accused’s mobility was hampered by his sprained right ankle, I do not think he suffered any other physical limitations which would have prevented him from keeping J. G. confined had he wanted to do so. I think that he was somewhat shocked at her reaction to his bite but that was perhaps a response which flowed from his consumption of medication, alcohol and marijuana.

If he did touch her waist with the idea of calming her down, this was clearly not for the purpose of confining her. She wanted to leave, did so and was not prevented from doing so. [ 26 ] I have briefly looked at the law of confinement. I note that in R. v. Gratton (1985), 18 C.C.C. (3d) 462 (O.C.A.) confinement was held not to require that the person being confined be confined at all times he or she is with the person(

s) confining him or her.

The requirement is, as Cory J. noted, that the confinement occur “for any significant period of time” (page 475) against the wish of the person or persons being “restrained” so that they “could not move about from place to place.” In reviewing the facts of this case, I cannot see that the evidence is in any way close to meeting the definition of confinement. [ 27 ] With respect to the charge of harassment, I do not believe it was the intention of the accused to harass the complainant or that he was reckless in doing something which reasonably would be expected to do so when he sent her a text message the morning after the biting incident.

Indeed, the jurisprudence of this province indicates (see R. v. Ohenhen

(2005) Ontario Court of Appeal) that harassment involves conduct which occurs at least more than once. I do not think that anything which occurred on the evening of April 19, 2010 falls into this category. The claim, therefore, that the text message sent by the accused to the complainant at 7:30 a.m. on the morning of April 20, 2010 was harassment does not make sense and is not sustainable on the evidence. [ 28 ] I will therefore convict the accused of the charge of sexual assault but acquit him on the charges of confinement and harassment. Released: January 26, 2011 Signed: “Justice André L. Guay”