) ) His Majesty The King, ) RICHARD LONSTRUP ) For the Crown v. ), 2022 MBKB 233

Date: 20221209 Docket: CR 20-02-02091 (Brandon Centre) Indexed as: R. v. P.A.B. Cited as: 2022 MBKB 233 COURT OF KING'S BENCH OF MANITOBA (GENERAL DIVISION) BETWEEN: ) ) His Majesty The King, ) RICHARD LONSTRUP ) For the Crown and ) ) P.A.B. ) ROBERT HARRISON Accused. ) For the Accused ) ) JUDGMENT DELIVERED: ) December 9, 2022 RESTRICTION ON PUBLICATION: Pursuant to s. 486.4(1) of the Criminal Code, any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. LEVEN, J.

SUMMARY [ 1 ] The accused was charged with assault, sexual assault and choking to overcome. The accused testified and flatly denied all charges. For reasons explained below, I find the accused guilty of all three offences. FACTS [ 2 ] This is not a comprehensive recitation of all evidence and argument; it is a concise

summary of certain important matters. [ 3 ] The trial took place on March 2, August 24 and November 1, 2022. [ 4 ] Jurisdiction was admitted. [ 5 ] The complainant and the accused were in a relationship from about January to April, 2019. The complainant testified that the accused would frequently lose his temper, and shove, slap, punch, kick and/or stomp her. On one occasion, he punched her in the chin, causing a gash on the inside of her lip, and causing her blood to flow onto the floor.

On another occasion, he choked her and she could not breathe. [ 6 ] The complainant went to the police on or about April 20, 2019. One police officer testified briefly that he saw the complainant on or about April 20, 2019, and that there were some visible bruises on her. Some photos taken that day were filed as exhibits.

The photos show bruises on the complainant’s arm, a partly-healed gash inside her lip, and some sort of marks on her neck. [ 7 ] The accused flatly denied that he ever assaulted or choked the complainant in any way. [ 8 ] The complainant alleged that, on multiple occasions, the accused would insert his fingers into the complainant’s vagina and then sniff his fingers. He said this was in order to determine whether the complainant recently had sex with someone other than the Accused. The complainant said she did not consent.

The accused flatly denied that he ever did anything of this nature. [ 9 ] It was an agreed fact that the Accused has a visible healed scar on his left wrist. The accused said that the complainant cut him by accident with a breadknife. The complainant denied cutting him at all. [ 10 ] The complainant testified about an incident during which the accused broke her cell phone. She admitted that she never showed the broken phone to the police. During direct-examination, the complainant testified about the broken phone: Question: Did he give you your phone back? Answer: He got mad and threw it. Question: He threw it?

All right, where – how did he throw your phone? Answer: He just dropped it on the floor. [ 11 ] During cross-examination, the complainant was asked about the phone. She was asked if she testified earlier that the accused threw the phone on the floor, and she agreed that she did say that. Then she was asked if she told the police that the accused threw the phone at her and she caught it.

The complainant replied: “Well if someone beat you up like that and stuff and you had to go in and talk to the police, would you be able to tell them everything?” [ 12 ] When the complainant testified about the time the accused punched her chin, causing a gash on her inner lip, she described how her teeth got stuck on her lip , causing the gash. On cross-examination, she was reminded that she told the police that her teeth got stuck on her gums . She was asked if it was her lip or her gums. She replied: “It was in my lip.

I had worded it wrong when I – when I did my statement with the police.” [ 13 ] When asked about how the gash caused her blood to spill onto the floor, she testified in direct-examination that she was “pretty sure” that both the complainant and the accused cleaned up the blood. In cross-examination, she was reminded that she told the police that only she cleaned up the blood. She replied: “Well I was yelled at for trying to clean up my blood off the floor.” She was asked if she had given two different answers, and she replied: “Like I said before, this was years ago.

But sure, yeah.” [ 14 ] In direct-examination, the complainant was asked about the events of February 15, 2019, when the accused repeatedly pushed her down. When she tried to get up, he pushed her down again. She testified that it happened “a lot of times”. She said: “I’m pretty sure it happened from – that was going on for most of the day and then he changed.” When asked again, she said: “An hour or so until he calmed down.” [ 15 ] In cross-examination, she was confronted by the apparent difference between “one hour” and “all day”.

She replied: “He acted like a piece of shit most of the day.” [ 16 ] The complainant testified that sometimes, when the accused pushed her, she pushed back. [ 17 ] The complainant freely admitted that she never sought medical attention after any of the assaults, but added that she probably should have.

[18] The accused testified and denied all allegations. At one point, he offered: “I grew up protecting women. I don’t believe in hittingwomen.” The Crown properly asked him in cross-examination if he had a prior conviction for assaulting a woman, and he admitted thathe did. Further, the Crown properly asked him if he had prior convictions for assault, assault cause bodily harm and uttering threats. Hereplied that the victims were not women.

He said, “this doesn’t have nothing to do with hitting women.” [19] The complainant was never asked if she ever sent any messages to the accused on Facebook Messenger or any social media. Indirect-examination, the accused spontaneously mentioned that the complainant contacted him on Facebook Messenger and tried toblackmail him. In cross-examination, the accused was asked if there is a record of the alleged blackmail messages.

He replied: “I don’thave the messages either because I have a new Facebook.” He then alleged that he lost the password to his old Facebook account. [20] When asked why he never told his own lawyer about the alleged Facebook message, he replied, “Well, she didn’t mention it inher statement, so I didn’t think it was something to bring up.” When asked why he did not ask his lawyer to try to retrieve the Facebookmessage, he replied “I always try to solve problems.

I don’t need someone else to solve my problems for me.” [21] When I asked the accused a follow-up question about his lost password, he said he did not know much about computers. [22] After the accused stepped down, defence counsel asked for an adjournment and implied that the time would be used to furtherinvestigate the Facebook Messenger issue. The Crown did not object to the adjournment, but did note that the defence would beresponsible for the delay.

The Crown further put the defence on notice that if, after the adjournment, the defence were to produce anyFacebook messages, the Crown would expect a high standard of authentication. [23] After the adjournment (which was over two months), there was no further evidence, and counsel proceeded to closing argument. ARGUMENT [24] Both counsel referred to R. v. W.(D.), (SCC), [1991] 1 SCR 742 [“W.(D.)”]. Defence [25] The defence argued that the accused should be believed when he denied all wrongdoing. The defence pointed to a number ofapparent contradictions in the complainant’s version of events.

Counsel argued that these contradictions undermined the complainant’scredibility. [26] Defence counsel pointed out that the complainant gave more than one version about how her cell phone was broken; whether her teeth caught on her gums or her lips; whether the accused helped her clean up her blood; and whether the February 15th assault went onfor an hour or all day. [27] Defence counsel argued that the complainant’s account of how the accused stuck his fingers into her vagina in order to learnwhether she had cheated on him was illogical.

Any odor that he might detect would provide no insight into whether the complainant hadsexual relations with another man, or not. [28] Defence counsel argued that the scar on the accused’s wrist was consistent with the accused’s testimony that the complainantaccidentally cut him with a breadknife. If he had wanted to lie, he might have said that she deliberately cut him, but he honestly said thatit was an accident. That speaks well of the accused’s credibility. [29] Defence counsel argued that, although the police photos show bruises on the complainant, they do not show the source of thebruises.

Crown [30] The Crown argued that the complainant was consistent in her testimony about crucial details. She was a credible witness whofreely made admissions against her interest (e.g. freely admitting that she did not remember exact dates; and freely admitting that shesometimes pushed back when the accused pushed her). [31] The fact that it would have been illogical for the accused to smell his fingers after inserting them into the complainant’s vagina,does not mean that it didn’t happen.

Offenders sometimes do illogical things. [32] The Crown argued that the complainant’s bruises visible on the police photos are consistent with her evidence, including herevidence about the choking incident. [33] The Crown argued that the accused lacked credibility. His assertion that he was a defender of women was obviously blatantlyinaccurate. [34] In respect of the accused’s story about Facebook Messenger, the Crown correctly pointed out that the evidence of the accused onthis issue violated the Rule in Browne v. Dunn, 1893 CanLII 65; (1894) 6 R. 67 (H.L.).

The defence never asked the complainant anyquestions at all about blackmail messages on Facebook Messenger or any social media. [35] The Crown argued that the accused’s story about Facebook Messenger obviously damaged the accused’s credibility. Thedefence was granted a substantial adjournment to further investigate this matter, and it had no further evidence after the adjournment. [36] In short, the Crown argued that the evidence proved the accused guilty beyond a reasonable doubt on all charges. CASE LAW [37] W.(D.) was a sexual assault trial in which the accused testified.

The court outlined a useful approach for analyzing the credibility

of an accused and the principle of reasonable doubt. At page 758, the majority set out the framework for instructing a jury: 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. [38] Later cases have elaborated upon W.(D.). R. v.

Menow, 2013 MBCA 72, was also a sexual assault case involving a W.(D.)analysis. At the appeal stage, the accused argued that the trial judge had erred by considering the evidence of the complainant and of awitness in concluding that the accused was not credible. At paragraph 23, the appeal court observed: To assess the evidence of the accused in a vacuum ignores the fact that the whole purpose of the trial is to determine whether or not heaccused is guilty…It is impossible for an accused’s evidence to be considered without a factual or contextual backdrop for the chargeitself. [39] In R. v.

Vuradin, 2013 SCC 38 , [2013] 2 SCR 639, the court considered the W.(D.) framework. At paragraph 21, thecourt pointed out: The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubtremains the central consideration. CRIMINAL CODE [40] Relevant provisions of the Criminal Code, RSC 1985, c. C-46 (the “Code”) include: Overcoming resistance to commission of offence 246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence, (

a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle,attempts to render another person insensible, unconscious or incapable of resistance, or (

b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause anyperson to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence and liable to imprisonment for life. Assault 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose; or

(

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Consent

(1.1) Consent must be present at the time the sexual activity in question takes place. DECISION [ 41 ] As noted, I find the accused guilty on all charges. To start with the first leg of W.(D.), I did not believe the accused. The accused is not a newcomer to the criminal justice system. Furthermore, I had the opportunity of seeing and hearing the accused, and I found him to be a very intelligent man. He did not use eloquent language, but he understood how criminal court works.

For example, he was eager to draw the court’s attention to the scar on his wrist, because he believed that the presence of the scar would help his case. [ 42 ] I found the accused’s story about Facebook Messenger to be preposterous. I accept the accused’s testimony that he is not a computer expert. However, if the complainant had really tried to blackmail him in writing on Facebook Messenger, he was intelligent enough to realize that any such blackmail message would be a smoking gun.

He would have mentioned it to his defence lawyer before the trial or, at the very least, he would have made some inquiries about what one can do if one loses one’s password. The accused did neither. In fact, he did nothing at all about the smoking gun. [ 43 ] The only reasonable conclusion is that there never was any smoking gun in the first place. [ 44 ] I will not speculate on what events occurred during the period of the adjournment.

I can simply emphasize the fact that the defence called no further evidence after the adjournment. [ 45 ] Incidentally, I agree with the Crown that the accused’s evidence about Facebook Messenger would have violated the Rule in Browne v Dunn . If defence counsel had actually come up with any evidence after the adjournment, the Crown might have been entitled to various remedies, including the right to recall the complainant and ask her about Facebook Messenger.

As the defence had no evidence at all after the adjournment, and in light of my conclusions expressed above, Brown v Dunn is largely academic. [ 46 ] The blatantly inaccurate assertion by the accused that he was a defender of women further damaged his credibility. [ 47 ] To continue with the second leg of W.(D.), the evidence of the accused did not raise a reasonable doubt about his guilt. As noted above, the credibility of the accused was low.

Furthermore, the accused did not raise anything in his testimony that might have cast any other evidence in a different light. [ 48 ] For example, the police photos and the brief testimony of one police officer make it clear that there were visible bruises on the complainant as of April 20, 2019. The complainant testified that the accused caused the bruises. There was nothing in the testimony of the accused that might have suggested any other explanation for the existence of the bruises. I am not suggesting that the existence of the bruises caused the ultimate onus to shift. The onus was on the Crown throughout.

I am merely noting that nothing in the evidence of the accused raised a reasonable doubt as to his guilt. [ 49 ] Looking at the third leg of W.(D.), there was nothing in the evidence as a whole that raised a reasonable doubt as to the guilt of the accused on all charges. [ 50 ] I found the complainant to be credible on all material points.

The inconsistencies in her testimony could best be described as minor or even trivial. [ 51 ] If the accused had been charged with mischief for deliberately damaging the complainant’s phone, the inconsistencies in the testimony about the phone might have raised a reasonable doubt about whether the accused was guilty of mischief.

[ 52 ] However, the complainant’s account of how her phone was damaged was not a crucial part of the narrative of assault, sexual assault and choking. At most, the fact that the accused might have thrown the phone or deliberately dropped it might have suggested that he had a temper. If the complainant got confused about exactly how the accused damaged her phone, her confusion is understandable. The events happened over three years ago, and the phone incident was of minor importance.

The complainant certainly did not go to the police because of her damaged phone. [ 53 ] The complainant did not always choose her words with precision. This was apparent in the course of her evidence about the events of February 15, 2019. She said that the accused kept pushing her down most of the day. Then she said that it lasted about an hour. When confronted with the apparent inconsistency, she explained: “He acted like a piece of shit most of the day.” [ 54 ] The complainant’s two observations are not mutually exclusive.

It is perfectly possible that the accused was physically abusive for about an hour and then verbally abusive for a longer period of time. In short, the “inconsistency” is no inconsistency at all; it is just a lack of eloquence. [ 55 ] Similarly, the defence pointed to the apparent inconsistency in the complainant’s account of how her mouth was injured when the Accused punched her chin. The police photo showed a partly-healed gash on the inside of her lower lip. [ 56 ] The complainant said that her teeth got stuck in her gums . Then she said that her teeth got stuck in her lip .

When confronted, she freely admitted that she used the wrong word when she said “gums”. It was her “lip”. [ 57 ] This is an obvious example of a witness accidentally using the wrong word. Clearly, a hard punch in the chin might force one’s upper teeth to contact one’s lower lip. The complainant freely explained how she used the wrong word, and this innocent error has no effect on her credibility in relation to the assault, the sexual assault and the choking. [ 58 ] I agree with the Crown’s argument in relation to the sexual assault.

The complainant testified credibly that the accused would sometimes stick his fingers into her vagina without her consent, and then smell his fingers. (Incidentally, defence counsel did not try to argue that this type of act would not constitute a sexual assault, nor did the accused allege consent. The accused simply denied ever doing this at all.) [ 59 ] I agree that inserting one’s fingers into the complainant’s vagina and then smelling the fingers is not a reliable method for determining who, if anyone, had sexual relations with the complainant. It would be an illogical sort of fidelity test.

It might be a good way to assert control and dominance, but it would not be a logical fidelity test. [ 60 ] However, the Crown does not have to prove that the sexual assault was logical; it just has to prove that the sexual assault happened. [ 61 ] In short, I accept the credible evidence of the complainant that the accused put his fingers into her vagina without her consent. This meets the definition of sexual assault in the Code . [ 62 ] As for the choking and the common assaults, the complainant was unshaken in her testimony about these events.

It is true that she did could not recall exactly how many assaults occurred, or the precise dates of each assault. However, more than three years after the events, she had a reasonably clear memory of what happened. [ 63 ] The complainant described being pushed down, slapped, punched, kicked and stomped on multiple occasions, during a time period of three or four months.

Even if I were to give the accused every benefit of every doubt, and were to conclude that he only pushed the complainant down once, punched her once, slapped her once, kicked her once, stomped on her once and choked her once (to the point that she couldn’t breathe), the accused would be guilty as charged. [ 64 ] In short, in respect of the third leg of W.(D.), I found nothing in the evidence as a whole that raised any reasonable doubt that the accused was guilty of sexual assault, assault, and choking. [ 65 ] I thank counsel for their cooperation and courtesy. ____________________________ J.