R. v. L.M., 2010 ONCJ 210

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

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

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

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

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

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

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

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

i) to (iii).

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

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

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

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

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

summary conviction. COURT FILE No.: Y100302 Citation: R. v. L.M. , 2010 ONCJ 210 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — L.M. Before Justice Peter T. Bishop Heard on March 19, 2010 Reasons for Judgment released on April 23, 2010 Carl O’Brien ........................................................................................................... for the Crown

Mark Van Walleghem ................................................................................. for the accused L.M. BISHOP J.: [ 1 ] L.M. stands charged that on or about the 18 th day of July, 2009 at the First Nation Territory of Mishkeegogamang in the said region did in committing a sexual assault on C.K. disfigure the said C.K. thereby committing an aggravated sexual assault contrary to Section 273(1) of the Criminal Code . EVIDENCE OF C.K.: [ 2 ] C.K. is 26 years of age and had been drinking on July 18, 2009.

She left one residence and went to see if her friend, A.M.1, who was at a different residence, was ready to leave and go to Osnaburgh. She began walking to Osnaburgh alone. [ 3 ] She was halfway to the highway when the accused came up to her and asked if she wanted to take a shortcut. [ 4 ] She didn’t want to go with the accused. He then asked if she wanted to have sex with him to which she replied “No, because we are supposed to be related”. [ 5 ] She tried to walk away and L.M. forced himself on her and hit her.

He just kept hitting her in the face. [ 6 ] She tried to fight back but was almost knocked out because she was so weak. [ 7 ] L.M. used his elbows to keep her down and tried pulling her pants down and kept hitting her as his elbows were on her neck. He was using his legs to pull her pants down. She tried without success to hold her pants up. His arms were on her neck and she was gasping for air and could taste blood coming out of her nose. [ 8 ] L.M. ripped her panties off.

She was shouting and tried to call for help by shouting “somebody help me”. [ 9 ] She felt his penis inside her vagina and this went on for not long when her friend A.M.1 came upon them and the accused took off. She couldn’t open her eyes because they were puffed up from the beating. She was crying. A.M.1 and T.H. arrived during the assault. [ 10 ] A.M.1 helped her put her pants on and she couldn’t find her underwear. [ 11 ] During the assault L.M. said “come on, just let me do it, it is going to feel good”.

She recognized the accused’s voice and saw his face when he told her to come towards the bush. [ 12 ] No one else was present when this happened. [ 13 ] Her friend, A.M.1, took her to R.S.2’s place where she borrowed some underwear and then they walked to the clinic. She was at the clinic for approximately one-half hour and then she went home. [ 14 ] When A.M.1 and T.H. showed up, the accused ran away.

CROSS-EXAMINATION: [ 15 ] She admitted drinking a 40 ounce, and a 26 ounce bottle of vodka and a bottle of Kelly’s wine, which she shared with six people. [ 16 ] She went back to R.S.2’s place a second time before walking down the road. It was still dark but starting to get light. [ 17 ] When she met up with L.M. he began forcing her towards the shortcut by pulling her and grabbed her by the shirt. L.M. did not let her walk away and that is when he started hitting her. She held her face where he hit her because it really hurt. She thinks he hit her with a rock or something because it almost knocked her out.

She fell on her behind. She described how she was assaulted with the accused putting his arm on her neck. His body was on top of her and he spread her apart and his legs were spread as he was sitting on her. He pulled her pants down with his other arm. She tried to hold her pants up. He swung his other leg around and he started using his legs then his foot to pull her pants down. She doesn’t know how he ripped her panties off but he did. [ 18 ] When she made her first statement to the police she was half cut.

At that time she told the police that he couldn’t get his penis in her. [ 19 ] She stated that she was hit from behind by L.M. and he was the only person around her who had the opportunity to hit her. EVIDENCE OF A.M.1: [ 20 ] A.M.1 is 25 years years of age and has two children. She was drinking with the complainant on July 18, 2009. She and the complainant left the house looking for more alcohol and went towards Osnaburgh to R.S.2’s house. They found T.H. there. She slept for awhile and got up at 6:45 a.m. and left for Osnaburgh. She found C.K. on the side of the road with L.M. on top of her. L.M. was raping

her. C.K. didn’t have any pants on. L.M. had his pants halfway down his legs. The accused took off in the bush. [ 21 ] When L.M. got off of her he pulled his pants up. She chased him a little ways but not too far as he took off and stopped and turned around when he put his belt on. That was when she saw his face. He was wearing a black ball cap. [ 22 ] When she found C.K. she was walking with T.H.. They both helped C.K. up and pulled up her pants and took her to the clinic. C.K. was crying. [ 23 ] The nurse, Daisy Sugarhead, called the cops.

C.K. had a lot of blood and bruises on her face and they then returned to R.S.2’s place. [ 24 ] On the morning that this happened, she was hung-over. When L.M. turned around she saw his face. He was approximately 20 feet away and his face was not concealed. CROSS-EXAMNINATION: [ 25 ] Before leaving Osnaburgh, she had slept for 4 hours and arose up at 6:45 a.m. as she looked at the clock. [ 26 ] As she approached C.K. and the accused, she couldn’t actually see C.K. because the accused was on top of her.

As they got closer, L.M. took off and that is when they saw C.K. on the ground. [ 27 ] When L.M. got off C.K. he was about 2 feet away from her. This happened after 6:45 a.m. EVIDENCE OF T.D.: [ 28 ] She left R.S.2’s house with A.M.1, [ 29 ] They came upon C.K. who was naked on one side of her leg. The accused was behind her. [ 30 ] She didn’t know L.M. by name as A.M.1 told her who it was. C.K. had a real big bruise on her face and couldn’t open her eye and also had a fat lip. RE-EXAMINATION: [ 31 ] When she saw C.K., the assailant had his hand over her mouth.

She confirmed that she couldn’t really identify the accused as the assailant. EVIDENCE OF L.M.: [ 32 ] He lives at Dog Hole with his father and sister. [ 33 ] On July 18, 2009 he went to bed and at 8:00 a.m. R.S.1 found him passed out in the closet. He did not see C.K. and he was with A.M.2 and other persons. He was drinking vodka and saw C.K. on the road and outside Rosella’s porch. He spent four to five hours at R.S.1’s place. He denies any physical contact with C.K. [ 34 ] At the relevant time he had consumed most of a 26 ounce bottle of vodka which he shared with M.M.. [ 35 ] He did not talk to C.K.

Q.L. is her boyfriend and he does not get along with Q.L.. [ 36 ] He was sleeping at 6:00 a.m. on July 18, 2009 and woke up at 11:00 a.m. and his father was there. His sister, K.M., saw him leave R.S.1’s house …. He stated he could have his nights mixed up. RE-EXAMINATION: [ 37 ] L.M. indicated he was arrested on the evening of the same day that he was sleeping in R.S.1’s closet. EVIDENCE OF K.M.: [ 38 ] K.M. is the accused’s sister. She is 16 years of age and was up late on July 18, 2009. She woke up at approximately 4:00 a.m.

She saw her brother, the accused, sleeping in R.S.1’s closet. [ 39 ] She observed her brother at approximately 11:00 a.m. at Q.L.’s trailer and also saw C.K. with a big lip at approximately 2:00

p.m. and she also saw swelling on the right side of her face. [ 40 ] C.K. told her that her brother inflicted her injuries and she observed the accused in the closet on July 18, 2009 between 5:00, 6:00 and 7:00 a.m. and he was sleeping. She did not wake him up. [ 41 ] K.M. was not drinking on July 18, 2009 due to her pregnancy and that was the first time that she ever saw her brother in the closet.

DECISION: [ 42 ] Having heard all of the evidence I am finding that the Crown has not proven beyond a reasonable doubt the charge of Aggravated Sexual Assault contrary to Section 273(1) of the Criminal Code but has proven beyond a reasonable doubt the charge of Sexual Assault Causing Bodily Harm contrary to Section 272(1) (

c) of the Criminal Code . [ 43 ] I have reviewed R v W (D), 1991 CanLII 93 (SCC) , [1991] 1SCR742, dealing with issues of credibility: (

i) If the Court believes the evidence of the accused the Court must acquit; (ii) If the Court does not believe the testimony of the accused but is left in a reasonable doubt, the Court must acquit; (iii) Even if the Court is not left in doubt by the evidence of the accused the Court must look at all of the evidence and that evidence which is accepted to ascertain whether the Court is convinced beyond a reasonable doubt of the evidence of the guilt of the accused. [ 44 ] I accept the evidence of C.K. that she saw the accused, heard his voice, and there was no one else in the vicinity to perpetrate this offence.

The complainant’s evidence and the photographs demonstrate beyond a reasonable doubt that assault bodily harm was committed during the sexual assault. The photographic evidence showed substantial bruising to the accused’s face (left eye, upper lip) to the point that one eye was closed. [ 45 ] The complainant thought that she must have been hit by a rock or some other object to almost knock her out and cause these severe injuries. [ 46 ] C.K. and her friends were drinking prior to this occurrence.

I am satisfied that enough time had passed and it was light enough for the complainant to identify the accused and for her to sufficiently have the cognitive ability to recognize the accused. I also take into account that she was, in her words, “half cut” when she was interviewed the first time by the police and did not disclose that the accused had penetrated her vaginally. I accept that explanation for the difference in her statement to the police and the sworn evidence at trial. [ 47 ] I further accept the evidence of A.M.1 who came upon the scene with her friend, T.H., when the assault was still in progress.

A.M.1 had nothing to gain or lose by giving her evidence and she was not shaken in her evidence on cross-examination that she saw the accused committing the sexual assault on C.K. She was very credable with respect to the time frame and what she saw.

As the accused got off the complainant he ran about twenty feet, turned, and she had a clear view of his face. [ 48 ] A.M.1 had been drinking the night before but she was sufficiently sober to identify the accused and her alcohol consumption does not create a reasonable doubt with respect to what she saw on July 18, 2009. [ 49 ] T.H. was in the company of A.M.1 on July 18, 2009. In examination in-chief, she clearly identified the accused as the perpetrator of this offence. In cross-examination she stated that she could not identify the assailant.

All of her other evidence is consistent with the complainant’s version of the events and that of A.M.1. There are some minor differences on positioning of the individuals, the colour of the clothes, and whether or not the assailant was wearing a hat. The weight of T.H.’s evidence is consistent with what happened as described by the complainant and T.H., including the visible injuries which she observed on the complainant. [ 50 ] With respect to the evidence of the accused, I accept that he had been drinking that night and he went to sleep at R.S.1’s place. He was sleeping in the closet.

When first asked, he indicated that he went to bed at 8:00 a.m., but further on in his testimony he stated that he was up at 5:00 or 6:00 a.m. because it was light already. He also indicated that he went to bed at 6:00 a.m., then woke up at 11:00. He stated that his sister came and woke him up. He had trouble remembering everything. He wasn’t sure about the date. [ 51 ] He didn’t tell the police about sleeping in the closet because he wasn’t sure whether he could remember that or not. [ 52 ] He stated that he saw the complainant walking along the road between 4:00 and 5:00 a.m. and it was still dark at that time.

In cross-examination he stated he knew what he was talking about but he couldn’t remember the night that it was or what day it was. [ 53 ] In re-examination he stated to his lawyer that he was arrested on the evening of the day that he woke up in the closet. [ 54 ] I find that the accused concocted his evidence during the trial to create a timeframe for his closet slumber to provide an alibi. [ 55 ] K.M. is the sister of the accused. She stated that she got up at 4:00 a.m. and later found her brother sleeping in the closet. She did not wake him up and just walked out.

This contradicts her brother’s evidence where he stated that she did wake him up. [ 56 ] She saw the complainant between 6:00, 7:00 or 8:00 a.m. and did not observe any injuries to her face. She later saw C.K. at around 2:00 p.m. and she had a really big lip and swelling on the side of her face. [ 57 ] In cross-examination she knew that this occurred on July 18, 2009 because she heard about it and stated that she saw her brother sleeping in the closet between 6:00 or 7:00 a.m or 5:00 a.m. [ 58 ] K.M. did not go to the police about seeing her brother in the closet but spoke to her brother.

She was told to talk to her

brother’s lawyer on the trial day. [ 59 ] I accept the accused’s evidence that on some day at some time he was sleeping in R.S.1’s closet. His evidence is unbelievable with respect to the day that that occurred, and on his sister’s evidence and his own evidence, he had the opportunity to commit this offence within the time frame revealed by the Crown witnesses.

There was no air of reality to the evidence of K.M. as she was tailoring her evidence to assist her brother with an alibi. [ 60 ] On all of the evidence, for the reasons stated, I am finding that the Crown has proven this charge beyond a reasonable doubt and a conviction will enter with respect to Sexual Assault Causing Bodily Harm. Released: 14 May 2010 Signed: “Justice Peter T. Bishop”