) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 3746

CITATION : R. v. K.D.B., 2017 ONSC 3746 COURT FILE NO.: 15-40 DATE: 20170623 INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486(3) OF THE CRIMINAL CODE OF CANADA ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – K.D.B Defendant ) ) ) ) ) ) ) ) Jason Pilon , counsel for the Crown William Wade , counsel for the Defendant ) ) HEARD: August 23,24,25/2016 and May 10,11/2017 REASONS FOR JUDGMENT Laliberté, J.

Introduction [ 1 ] The accused, K.D.B, is charged under a six count indictment. [ 2 ] Crown counsel indicated at the outset that he was not proceeding with counts 4 and 5 which relate to a firearm. [ 3 ] K.D.B plead guilty to failing to keep the peace and being of good behavior contrary to

section 145 of the Criminal Code . The only issue is whether this breach is based on the commission of a sexual assault and/or the administration of a stupefying drug to the complainant or having breached a

section 110 firearm prohibition. [ 4 ] He has also plead guilty to having breached a

section 110 firearm prohibition. [ 5 ] He has plead not guilty to

section 271 (sexual assault) and 246 (administration of a stupefying substance). [ 6 ] The essence of the allegations is that on or about October 5 th , 2015 the accused would have sexually assaulted the complainant M.L. after providing her with a drug, namely lorazepam. [ 7 ] M.L. was residing with him and his partner T.L. at that time in Cornwall. [ 8 ] The complainant has no recollection of the incident and states having awakened next to him with semen on her back. [ 9 ] The accused testified in his defence and denied the allegations. [ 10 ] Properly articulated, the issue for the Court is whether the Crown has established each of the essential elements of these offences beyond a reasonable doubt. [ 11 ] The Court`s judgment is structured as follows: 1.

A review of the relevant evidence.

2. The position of the parties. 3. The identification of the relevant legal principles. 4. A discussion of the Court`s findings. 5. The verdicts The evidence [ 12 ] Much to counsels’ credit, there were a number of admissions made under

section 655 of the Criminal Code . [ 13 ] They are as follows: 1. Identity of K.D.B. 2. Territorial jurisdiction… if this happened, it was in Cornwall. 3. Relevant dates are October 5 th and 6 th , 2015. 4. No issue of continuity with the Exhibits. 5. Photographs and copies are accurate depictions of what is shown. 6. The Court was advised that K.D.B. provided a statement to the police on October 8 th , 2015 which is admitted as having been voluntary. It is not part of the Crown`s case but may be used for cross-examination. 7. Vivienne Luk`s expertise as a forensic toxicologist/ pharmacologist is admitted. 8. Ms.

Luk`s report will be filed as an exhibit. It confirms the presence of lorazepam in a urine sample provided by the complainant. 9. The pellet handgun located at the accused`s residence is a firearm as defined under

section 2 of the Criminal Code . 10. K.D.B. was prohibited from possessing a firearm under

section 110 of the Criminal Code at the relevant time. 11. He was also bound by two distinct undertakings given to an officer in charge with one of the conditions being that he was to keep the peace and be of good behavior. 12. The accused had a prescription for lorazepam at the relevant time, and the bottles found at his home by the police were his. 13. The nurses who dealt with the complainant and the identification officers are not tendered as expert witnesses. 14. There are no

section 276 application (deals with complainant`s sexual conduct in other instances) and 278 (deals with access to complainant`s therapeutic records). 15. The complainant alleges that the accused made sexual comments and touched her inappropriately on occasions prior to the alleged sexual assault. While these are denied, defence agrees that there is no need for the Court to rule on whether this amounts to other discreditable conduct.

It is not to be considered as evidence of propensity but rather goes to the accused’s state of mind and motive to commit the alleged offences. [ 14 ] Again, much to counsels’ credit and ability to focus on the more significant issues, there were a number of Exhibits which were filed on consent. These will be referred to by the Court while reviewing the testimony of the witnesses. [ 15 ] It was also agreed that the lead investigating officer, Detective Constable Mathew Lemire would provide hearsay narrative type evidence.

The purpose is to explain the unfolding of the investigation. [ 16 ] The Court heard evidence from the following witnesses: Crown - Detective Constable Mathew Lemire - Loree Lalonde ( Nurse ) - Stacey Chisholm ( Nurse) - M.L. ( Complainant) - Vivienne Luk ( Toxicologist ) - J.W. Defense

- K.D.B. - S.S. - J.T - Detective Constable Mathew Lemire ( recalled on consent) Detective Constable Matthew Lemire [ 17 ] Detective Constable Mathew Lemire is a member of Cornwall Police Services. He has been assigned to the sexual assault and child abuse unit since October 2014. He is the lead investigator in this matter. [ 18 ] He indicated that Constable Kelly Zeran is the first Officer who dealt with the complainant, M.L. [ 19 ] M.L. had contacted the Cornwall Police on October 6 th , 2015.

Constable Zeran responded to the call and attended 214 York Street in Cornwall at 8:02 p.m. where she met her. [ 20 ] Constable Zeran spoke to the complainant and was advised that: - She had been sexually assaulted - The incident occurred at 494 5 th Street West in Cornwall - She provided 2 names for the suspect, namely K and D - It would have occurred on the evening of the 5 th of October leading to the 6 th . [ 21 ] The detective explained that there are 2 units at the address 494 fifth Street West, namely units A and B. [ 22 ] Unit B was occupied by the accused, his partner T.L. and the complainant. [ 23 ] Unit A was occupied by J.W. [ 24 ] Photographs 1-2, 1-3 and 1-4 are identified as showing the exterior of this residence. [ 25 ] The Court is advised that M.L. described the alleged actions of the accused.

That she was given medication and woke up close to him. [ 26 ] She was transported to the Cornwall Community Hospital by the police. She dealt with nurses from the Assault and Sexual Abuse Program (ASAP). [ 27 ] The Court understands this team to be made up of specially trained nurses who have dual responsibilities: 1. Provide care and treatment for victims of sexual and physical violence. 2.

Locate and preserve evidence of such violence through questions and examinations. [ 28 ] M.L. arrived at the hospital with the officer at 9:40 p.m. [ 29 ] She spoke to ASAP nurse Loree Lalonde who was assisted by Nurse Chantal Seguin. [ 30 ] The officer states that M.L. became impatient.

She was tired and was not cooperative. [ 31 ] She was brought to the Police Station where she provided a video statement to Constable Van Den Oetelaar. [ 32 ] Following this, she was driven back to 214 York Street, at her friend’s residence. - Constable Zeran seized some items from M.L., namely: - Pyjama pants - Tank top - Sports bra - Underwear These were taken by the officer on October 7 th , 2015 at 1:00 a.m. They are shown on page 3 of Exhibit # 7 which is a list of items seized by the police during this investigation.

[ 33 ] The officer confirms that the ASAP sexual assault examination process had not been completed during this first visit because the complainant became impatient. [ 34 ] Detective Lemire was assigned this investigation on October 7 th , 2015. [ 35 ] He received and reviewed information provided to him by other officers. He concluded that there were reasonable grounds to believe that offences had been committed by K.D.B at his residence, namely

section 271 and

section 246. [ 36 ] On October 8 th , 2015 he obtained a search warrant for the residence located at 494 (

B) Fifth Street West. [ 37 ] He attended this location with other officers on October 8 th , 2015 at 10:47 a.m. [ 38 ] They went to the side door and noted a sign stating: “If you’re here for a place to stay this isn’t a shelter! Fuck off get off my property” [ 39 ] This is shown on photograph Exhibit # 1-5. [ 40 ] The accused answered the door.

T.L. was also present in the home. [ 41 ] K.D.B. was arrested for a sexual assault, having administered a substance and breach of undertaking. [ 42 ] He was asked if he wanted to leave some items at home and he placed his wallet, a set of keys and a lighter on the kitchen table. [ 43 ] The officer explained that he had met the complainant prior to the search. Arrangements were made for her to return to the Hospital to complete the sexual assault kit examination.

She attended on October 8 th , 2015. [ 44 ] The officer goes through the areas which were searched at the home and the items which were found and seized. [ 45 ] These findings are shown on the photographs filed as Exhibits 1. [ 46 ] He was assisted by identification officer Constable Lalonde and Constable Frappier. [ 47 ] The findings can be summarized as follows: 1. The firearm was found in a dresser located in the living room; the officer can’t say if it was loaded; there were no pellets. 2.

A Tommy Hilfiger shoe box was located on a shelf in the kitchen which contained different types of medication as shown on photograph Exhibit # 1-12. There were different containers in the accused’s name. Pills were in different sizes and forms. One such bottle contained lorazepam pills which were different in form than the others, they are longer and oval. Two pills of each type were kept by the police for analysis and the rest provided to the accused who was in custody. 3.

An empty bottle of lorazepam made out to the accused was found in a small wooden desk in the master bedroom which was used by the accused and T.L. 4. The officer also testified in regards to a second bedroom which was used by the complainant and identified by her as the location where the alleged incident occurred. There is a bungee type chord which seems to keep the door closed; there is no handle. There were beer bottles in this room as shown in photograph Exhibit # 1-17. The Court is shown photographs of the bed in the second room where the incident is said to have taken place. 5.

A lock box was found in the master bedroom. It was closed and locked. The officer unlocked this lock box by using one of the keys left by the accused on the kitchen table. There was a clear unlabelled and empty pill bottle found in this box. There was also numerous individually bagged cocaine found, described as “small dime size bags”. 6. Also found in the master bedroom was a black box in which there was a pill bottle which did not match the description of the pill given by the complainant. The bottle was not in the accused’s name but in the name of Martine Berniquez-Poliquin. 7.

Sheets, duvet cover, blankets and comforter were also seized.

[ 48 ] All of the items are noted in Exhibit #7. [ 49 ] The search ended at 12:05 p.m. [ 50 ] T.L. was arrested in regards to the cocaine. She was still at the residence. This was at 12:08 p.m. [ 51 ] At 12:10p.m. , T.L. received a phone call on her cell phone from 613-361-1282 which was linked to a S.S. She is the accused’s ex-spouse. [ 52 ] T.L. stated the following while on the phone: - “ They found it” - “ they found your stuff” - “ I’m going down to the cop shop” [ 53 ] Her phone was seized. [ 54 ] She was brought to the police station where she was interviewed on video by the police.

She was released on a Promise to appear. [ 55 ] K.D.B. was interviewed from 4:41 p.m. to 4:59 p.m. He spoke to counsel during this period of time. [ 56 ] Detective Lemire was advised that the second ASAP examination of the complainant had been completed.

He attended hospital on October 14 th , 2015 where he retrieved medical records and reports filed as Exhibits # 9, #10 and #11. [ 57 ] He was also provided with samples of urine and blood taken by the ASAP nurses from the complainant. [ 58 ] These were turned over to identification officer Lalonde who in turn sent same to the Center of Forensic Sciences. [ 59 ] The firearm was also sent for examination. [ 60 ] The officer explained having received the following reports with the noted results: 1- Center of Forensic Sciences biologist Johanne Cox provided a report dated November 13 th , 2015 Report states that no male DNA was found on swabs taken from complainant by the ASAP nurses.

These were taken from her vaginal and anal areas. 2- CFS biologist Nicole Vachon reported on November 30 th , 2015 that complainant’s underwear revealed blood but no semen. There were 2 contributors to DNA one being the complainant the other was not suitable for comparison. No other substance was detected on complainant’s other clothing. 3- CFS biologist Margaret Henry reported on May 6 th , 2016 that no semen was located on the bed sheet and cover. There was some blood located on a sheet but she can’t say if it was human.

It wasn’t sufficient for DNA analysis. [ 61 ] Finally, the officer described his dealings with J.W. on August 22 nd , 2016, which was the first day set for this trial. [ 62 ] At 9:55 a.m., the officer was advised by a secretary from the Crown Attorney’s office that a male wanted to speak to him. [ 63 ] He met with J.W. who advised that he had heard of this trial and had information in regards to the accused, his partner T.L. and the complainant. [ 64 ] J.W. provided a statement to Constables Zeran and Frappier. [ 65 ] In cross- examination, the officer provides the following information: - There is a door which separates apartment A and B at 494 Fifth Street West but it cannot be locked. - His first physical contact with M.L. was at 2:30 p.m. on October 7 th , 2015.

He can’t describe her state on October 6 th , 2015 when she initially complained. - He doesn’t believe that the statement given by the complainant to Officer Van Den Oatelaar was sworn. - Reaffirms that the ASAP examination wasn’t completed when she first attended the Hospital and this was at her insistence. - Officer agrees that the firearm he seized can be bought at stores such as TSC; the firearm was empty

- The accused was cooperative when the warrant was executed; it was shown to him. - The 2 lorazepam pills were seized from a bottle found in the Tommy Hilfiger box on the kitchen shelf; it was 1mg and given to Constable Lalonde. - He can’t recall if there was a sleep apnea machine in the master bedroom on the night table. - He states there was a door knob for the master bedroom door. - He confirms that an officer attends at Hospital for an ASAP examination; the officer waits outside the room during the examination. [ 66 ] The officer is questioned in regards to J.W..

He is unaware of any connection between the complainant and this individual other then they resided at 494 Fifth Street West in different apartments. [ 67 ] In re-examination, he states that the Tommy Hilfiger box was over his eye sight some 6 feet from the floor. [ 68 ] He confirms that there is a velocity warning on the firearm. Loree Lalonde [ 69 ] Witness Loree Lalonde is a registered nurse assigned to the Assault and Sexual Abuse Program at the Cornwall Community Hospital (ASAP). As such, she has received special training.

ASAP’s role is to treat and collect evidence form alleged victims of physical and sexual violence. [ 70 ] She notes that she was the primary nurse who dealt with the complainant M.L. during her first visit at the hospital on October 6 th , 2015. The complainant attended in triage at 6:52 p.m. The witness first met her at 10:30 p.m. [ 71 ] She identifies Exhibit #9 as the nursing documentation prepared in the course of the complainant’s examination. Her observations were recorded on these forms [ 72 ] The complainant was not sure what medication she was given.

She stated that she had “woke up naked next to him” and was unsure of details of the assault but mentioned that she had body fluids on her back. [ 73 ] She explained that the complainant had refused the “sexual assault kit” which includes an examination of a patient’s genitals. She has no recollection why she declined. [ 74 ] The front and back of the complainant’s body was examined through a fluorescent light with a view of detecting body fluids such as sweat, saliva and semen. The witness states that she did not see anything.

The witness is unsure whether the complainant told her she had showered but if she did, body fluids would have been wiped off. [ 75 ] The witness was shown Exhibit # 10 which she identifies as a report showing results of a urine sample taken at 11:45 p.m. on October 6 th , 2015. This report confirms the presence of alcohol in the complainant’s system.

It also shows the presence of benzodiazepine which she notes is a prescribed drug for anti-anxiety and insomnia. [ 76 ] The complainant was discharged from the hospital at 11:30 p.m. [ 77 ] In cross-examination, the witness confirms having no recollection of the complainant’s demeanor when she attended the hospital and that the fluorescent light did not reveal the presence of body fluids. She thinks there could be fluids in minute amounts following a shower. [ 78 ] The witness does not recall seeing any injuries on the complainant.

Stacey Chisholm [ 79 ] Witness Stacey Chisholm is also a registered nurse assigned to ASAP at the Cornwall Community Hospital [ 80 ] The witness is shown and identifies Exhibit #11 as a form in which she recorded her observations, her actions and information received from the complainant. [ 81 ] She is the nurse who dealt with the complainant during her second visit at the hospital on October 7 th , 2015. [ 82 ] The complainant attended the hospital at 2:43 p.m. with Detective Lemire.

She had changed her mind and wished to proceed with the sexual assault kit examination she had declined with Nurse Loree Lalonde. [ 83 ] The witness explained that this portion of the examination is more invasive as it involves swabbing of body parts. [ 84 ] Specifically, the examination of the complainant consisted of the following: - Urine sample taken at 2:53 p.m.

- Sample of blood taken at 2:57 p.m. - External examination of her genitals - Vaginal and rectal swabs [ 85 ] The witness notes that the complainant chose not to show her body as a means of visual examination. [ 86 ] It was noted that the complainant’s anus, rectum, labia majora and minora were unremarkable. Her bleeding was consistent with her menstruating. [ 87 ] The sexual assault kit was then turned over to Detective Constable Lemire. M.L. [ 88 ] Complainant is 29 years old. She has been residing in the Kitchener area for the last 7 months.

She has 2 jobs. [ 89 ] Her youth and criminal record is filed as Exhibit #19. It is a lengthy record all of which is composed of breaches of Court orders and not attending Court save for one count of theft and one count of theft of credit card as a youth. [ 90 ] She has no outstanding criminal charges. [ 91 ] She states not being proud of her record. She believes that she has now become a better person. [ 92 ] M.L. speaks of her long standing substance abuse issue which involved alcohol and illicit drugs. Her addiction started at age 14. [ 93 ] She describes herself as recovering from these addictions.

She last consumed in October 2015 [ 94 ] The alleged incident in this trial has played a role in why she has stopped. Historically, she attended for counselling and rehab. She is still getting counselling. She has created a new life for herself and she is happy. [ 95 ] Her drug of choice was cocaine which she started to consume at age 15. [ 96 ] She confirms that in October 2015 she was deep into the use of cocaine and alcohol. [ 97 ] She describes K.D.B. as an acquaintance. She met him through her ex-boyfriend some 2 years ago during the summer of 2014.

She wouldn’t often see him. [ 98 ] M.L. identifies the accused`s residence through the photo Exhibits. [ 99 ] She describes same type of relationship with T.L. [ 100 ] She had never seen the sign shown on photo exhibit # 1-5 which states that this is not a shelter. [ 101 ] She started to live there in mid-July 2015. She had nowhere else to live. She was struggling with her addictions. She asked him if she could stay there as she needed a place to stay. Nobody wanted her around including her family with whom she has since reconnected. It was a low point for her.

She had lived at a variety of places. [ 102 ] She describes him as still being an acquaintance when she moved in. She didn’t know him that well and felt uncomfortable. [ 103 ] She couldn’t keep a job. She had worked at Tim Horton’s. Was in receipt of social assistance for a while.

Then worked at a restaurant at the Cornwall mall known as Cedar’s. [ 104 ] M.L. describes her condition during that time as follows: - Using cocaine and alcohol - Struggling with her addictions - Her mental health wasn’t’ very good… she felt depressed and anxious - Felt ok physically… she was 5’5” in height and 175 to 180 pounds - She wasn’t taking prescribed medication [ 105 ] Both the accused and T.L. were living there all the time. [ 106 ] She explained that J.W. and his sister lived in the other apartment. [ 107 ] She provides a description of the residence.

There were stairs leading to the upper floor where her room, the bedroom used by the accused and T.L. and a bathroom were located. [ 108 ] She paid $200 per month to live there. [ 109 ] There were no locks on bedroom doors nor the washroom. There were no handles.

[ 110 ] There was a bungee cord on her bedroom door. [ 111 ] She was familiar with K.D.B’s medication in the Tommy Hilfiger box located on the shelf in the kitchen. He had told her he was on medication but not the reason for same. [ 112 ] She had never seen the firearm. [ 113 ] She is shown photograph exhibits 1-16 and 1-19 which she identifies as showing her bedroom. Beer bottles which are shown were hers. [ 114 ] She doesn’t recognize the bathing suit shown on the bed.

It is not hers and doesn’t know who it belongs to. [ 115 ] M.L. is next questioned on what is described as inappropriate comments and actions by K.D.B. [ 116 ] She describes the following: - Unwanted comments in reference to her body which made her feel uncomfortable - T.L. was at times present when these comments were made; T.L. would laugh; her reaction was confusing for M.L. - These comments were not seen as compliments; she felt it was an invasion of her privacy - The comments were as follows: − That her breasts looked good − Her behind looked good in a pair of pants − He could see her bra through her shirt − Her breasts looked big that day - She would respond by telling him that he was a pig….

She tried to ignore his comments - She also reports that while she was taking showers K.D.B. would enter the bathroom, open the shower curtain and look at her… made comments about her shaving her privates… he thought this was funny but she didn’t. - This happened on several occasions - Finally, she states that he would slap her behind particularly when she was having a shower - There were no other unwanted physical contacts [ 117 ] M.L. then describes her version of the events of October 5 th and 6 th , 2015. [ 118 ] She wasn’t working that day. She started drinking beer at around 10:00 a.m.

She stopped drinking at 5:30-6:00 p.m. She can’t recall the amount but it was over 6 beers. [ 119 ] She also consumed ½ gram of cocaine during the same time frame. [ 120 ] She described the effects of alcohol and cocaine as 6 out 10. [ 121 ] She took no other drugs. [ 122 ] This is pretty well what she did that day. She was struggling with her addictions. She was bored.

That`s what she chose to do. [ 123 ] She describes herself as a seasoned drinker which would mitigate the effects of alcohol on her. [ 124 ] Both the accused and T.L. were in the house. [ 125 ] M.L. drank and snorted the cocaine in her bedroom and living room. The accused and T.L. would have seen her consume both the beer and cocaine. [ 126 ] The complainant reported that her feelings changed at one point. She started to feel anxious and unhappy. [ 127 ] She would have told K.D.B. how she felt as she needed to talk to someone. It was around 6 or 7 p.m. [ 128 ] He would have offered her a pill.

M.L. provided the following evidence in regards to this pill: - He offered her a pill and said that it would help with her anxiety - That the pill would really help her… would make her feel more relaxed - That there would be no side effects such as making her feel “ groggy”… she would have asked him if there would be any side

effects - He had told her in the past that he was taking medication for anxiety and his heart - She re-affirms that she knew where he kept his pills in the Hilfiger box on the kitchen shelf - As to why she asked about possible side effects, she responds that she didn’t want something bad to happen; it was something new - She accepted the pill that he had volunteered to give her - This discussion took place in the living room… T.L. wasn’t present - She reports that he took the pill out of the box and gave it to her; she took the pill with a sip of beer - She describes the pill and ultimately identifies the type of pill out of the 4 varieties which were filed as Exhibits in this trial… she pointed to Exhibit #13 by reason of the colour and shape; … 13 shows lorazepam; …she didn’t know the name of the pill [ 129 ] Next, she described the events after she had taken the pill. [ 130 ] She states having gone upstairs to relax and watch a movie she had purchased.

She laid on her bed and felt very tired. Her limbs felt very heavy. She uses the words “severe heaviness” to describe how she felt. She had never felt like this before through the use of cocaine and alcohol. She could not move. She had never experienced such a feeling. [ 131 ] Her evidence is that she was wearing a black and white checkered smurf pyjama bottom and a white tank top. She did not have a bra or panties. She was covered with a comforter having hockey symbols. There was a white bed sheet.

Her hair was in a ponytail and bound by an elastic band. [ 132 ] She does not recognize the garment shown on photograph 1-17 nor the items shown on photograph 1-19. She doesn’t know who these belong to and states that these were not present while she was there. [ 133 ] The complainant describes having a total loss of memory at one point. She doesn’t know how long this blank occurred after she took the pill. She has no concept of time. She only recalls drinking her last beer at 6:00 p.m. [ 134 ] Her next recollection is when she woke up with K.D.B. in bed next to her.

She has no concept of how much time had elapsed leading to this point.

She provides the following evidence of what transpired once she woke up: - The bed is tucked against a wall; she was lying on her side facing away from the wall; her body was straight - K.D.B. was behind her, next to the wall; he was lying on his back facing up; he was sleeping - The bedroom door was shut; the lights were off; the television was still on; she guesses it was early morning around 8:00 a.m. based on the light coming through the window curtain. - Her pyjama bottom was lowered to her ankles; her tank top was partially up so that her lower back and stomach were exposed; her breasts were covered; her hair was messy and the elastic band was not there anymore - She states that K.D.B. had no clothing covering his upper body and his shorts which she described as being green and black and similar to a bathing suit were down to his ankles - Both of their genitals were exposed with their clothing bundled up at their ankles - She felt something sticky on her back which she identifies as semen; she notes that it was sticky, warm, felt soft liquid; she touched this substance with her hand , looked at it; it was clear and whitish - The witness became emotional and requested a break when asked to describe how she felt; ultimately, she described feeling as follows: • Very scared • Very confused • Very violated • She concluded that some type of sexual activity had taken place without her consent - She explained having awakened K.D.B. and confronted him by stating “ … what the fuck are you doing in my room…” ; he would have responded having gotten in an argument with his girlfriend, being kicked out of his room and inviting himself in her room as he felt comfortable sleeping next to someone; he would have then stormed out of the room while pulling up his shorts; she is not sure what he did after - She testifies wanting to get in the shower as soon as possible so as to remove the substance off her back; she knew she had semen on her back and wanted to get it off as fast as possible.

- She did not have any physical sensations in or around her mouth or rectum; her genital region felt a little more moist than usual… not as clean - She describes taking a 10 minute shower during which she used body wash to wash all of her body parts; she applied soap and washed the area where the substance was located for 2 to 3 minutes; she felt confused, upset and ashamed; she then got dressed - She heard the accused and T.L. leaving; she could hear them going down the stairs; she heard T.L. screaming and being vulgar; T.L. stated “ Fuck her, it doesn’t matter … lets go” - Finally, she left the home at 8:53 a.m. and went to a friend on York Street [ 135 ] The complainant testified having contacted the police later on that day.

She explained that she didn’t know what to do and felt shame. She had doubt in her mind and wasn’t sure if she would be believed. She eventually got the courage to call the police. [ 136 ] She describes meeting constable Zeran and providing detective Van Den Oaterlaar with a video statement which she cut short as she didn’t feel the need to talk about it anymore. [ 137 ] She also attended the hospital on 2 separate occasions where she met with nurses. She felt very uncomfortable, really tense and scared. She provided blood and urine samples. She didn’t want parts of the examination done as she felt uncomfortable.

While she acknowledges having consumed alcohol while at her friend’s home prior to attending the hospital, she denies having consumed any drugs following the alleged incident and prior to her visits at the hospital. [ 138 ] The following points are raised during the complainant’s cross-examination: − Prior to residing with the accused, she had lived with her boyfriend, her sister and mother; she left because she had broken up with her boyfriend − She doesn’t agree with the suggestion that she moved in with K.D.B. in September; it was during the summer and she was there for three and half months; she was never asked to leave by either the accused or T.L. − She was not dating M.M. while residing there − She describes her lifestyle at the time as transient; she did not sleep at the accused’s residence every night; she was a fairly heavy drug consumer − She admits having consumed clonazepam prior to October 5 th ; it was never prescribed to her − She wouldn’t consume drugs other than cocaine − She knew K.D.B. had prescription medication in the box found by the police; she was not familiar with these pills; she denies having asked him for pills including OxyContin − She has always struggled with anxiety and had seen a doctor for this; while she was on prescribed anxiety medication a long time ago, she was not on such medication at the relevant time − She knew of K.D.B.’s legal problems and charges before she moved in − She stayed at the house all day on October 5 th ; the accused and T.L. were also present that day; she states that they were lounging − She is aware of Project Truth but is unaware if the victims received money − She doesn’t know a Justin Lacelle; she doesn’t know all of the accused’s and T.L.’s friends − When asked, she confirms having watched CSI on television and is aware of the significance for the police of gathering evidence; she would later explain why she had taken a shower; she didn’t feel comfortable with semen on her body − She maintains having paid the accused $200 per month from public assistance and her work at Cedar’s restaurant − She agrees that her criminal record discloses a pattern of non-conforming with Court orders; she doesn’t dispute the suggestion that this amounts to lies to Judges when she stated to them that she would comply − She states that she had a good tolerance for alcohol; her consumption of alcohol on October 5 th is consistent with how she would usually drink − She denies having taken any of the accused’s medication to supplement her alcohol consumption − It is not possible that the accused’s inappropriate comments were directed at T.L. − She testifies having gone to her room between 6:00 p.m. and 7:00 p.m. on October 5 th ; she then got into her bed clothes; she didn’t go out that evening − She knows K.D.B. has sleep apnea and his machine was not in her room at the time of the incident ; she maintains that he was

sleeping next to her − She provided the following information in regards to her meetings with the nurses: • She met nurses on 2 separate occasions • She didn’t tell the nurses that she had consumed cocaine since she felt embarrassed • There were a number of swabs taken including a rectal swab • She may have told the police that she had bruises on her buttocks and thighs and that the nurses would have been able to observe the presence of bruises since her pants were down • She doesn’t recall refusing the taking of photographs of her body by the nurses − The fact that she knows K.D.B. was facing charges of a sexual nature did not impact on her decision to move in his residence − She is aware that K.D.B. and T.L. had spent time at the bakery of S.S and C.S.; she doesn’t agree that they had spent “ a fair amount of time working at the bakery”; they were not there frequently − She admits having taken medication from someone else − She did not notice any scars on the accused while his pants were down − While she had boyfriends at the accused`s home, none of them ever moved in [ 139 ] In re-examination, she explains that she had taken clonazepam months before October 5 th . [ 140 ] She states that she knew K.D.B. kept cocaine in a safe in his room.

He had told her this. [ 141 ] OxyContin is not a drug she particularly consumed in the past. [ 142 ] She explained that she moved in with the accused as she had nowhere else to go. [ 143 ] She again denies having stolen the accused`s medication. Vivienne Luk [ 144 ] Witness Vivienne Luk is a forensic pharmacologist and toxicologist with the Centre of Forensic Sciences.

Her qualifications are set out in Exhibit #2-3. [ 145 ] Her ability to provide the Court with expert opinion was conceded by defence and confirmed through a brief voir dire. [ 146 ] She confirms having analyzed the urine and blood samples taken by the ASAP nurses from the complainant. Her findings are set out in her report dated December 22, 2015 and filed as Exhibit #2-2. [ 147 ] She notes that the complainant`s blood samples revealed the presence of 80mg of alcohol in 100 ml of blood.

No drugs were detected in the blood sample. [ 148 ] The urine sample disclosed 97mg of alcohol per 100ml of urine and the presence of lorazepam. No other drugs were detected in the complainant`s urine sample. [ 149 ] The expert explains that depending on when the lorazepam was ingested, it is possible that its presence was eliminated from the blood but not the urine. She explains that lorazepam is eliminated from blood within 2 to 3 days. However, it can be detected in urine for up to 7 days.

So that it is not surprizing that lorazepam consumed by the complainant at around 5-6 p.m. on October 5 th would be detected in the urine sample but not in the blood sample. [ 150 ] She also explains that it is unlikely that cocaine consumed on October 5 th would be detected in the urine and blood samples taken from the complainant in this manner. [ 151 ] The witness provides the following opinion in regards to the effects of the substances raised in this trial.

Alcohol − She wouldn`t expect outward signs of intoxication with an experienced drinker having 80 mg of alcohol in 100ml of blood − She wouldn`t expect loss of memory at such a level Lorazepam − this drug is usually prescribed for anxiety disorders such as panic attacks, phobias and fears

− the standard dose is .5mg and up to 6mg per day − it is a central nervous system depressant which will: • cause drowsiness/confusion • impair memory • cause loss of muscle control • cause loss of consciousness at high level • the effects are specific to the individual and one expects more effects on a first time user • cause muscle weakness, slow directed movements, unsteadiness, loss of balance • reduces information going to the brain; there is no communication between brain and muscles • affects perception • the effects would be more profound if coupled with alcohol • there is an increased risk of sedation and unconsciousness if combined with alcohol and cocaine [ 152 ] The expert provided the following evidence during cross-examination: − The period of time from collection and testing has no impact because the samples are preserved in the collection tubes − The effects of lorazepam are not offset by a stimulant such as coffee − Drugs other than alcohol are not given a numerical value; tests only reveal presence or absence of drugs − Clonazepam and lorazepam are from the benzodiazepine family; they have similar effect; it is possible to develop a “ cross tolerance” as between different types of benzodiazepines; − The effects of lorazepam will depend on the tolerance of the individual; it is possible that an infrequent user would become unconscious from the collection of alcohol, cocaine ( in the withdrawal stage ) and lorazepam in the system; gender does not impact on the effects; a very small person may have more effects than a very large person J.W. [ 153 ] On May 11 th , 2017, the Court ruled that J.W`s voir dire evidence was admissible as potential after- the- fact conduct of the accused person. [ 154 ] This witness explained that K.D.B. was his landlord while he resided at 494 Fifth Street West in Cornwall.

He was living there with his sister. The accused was living at the back with T.L. and a girl named M. He describes her as a chunky girl, dark hair and wearing glasses. She was around 20 years old. She lived there for 2-3 months. [ 155 ] He testified that on August 22 nd , 2016, being the first day of this trial, he attended the courthouse wanting to speak to the Crown attorney and provide a statement of what he had seen at the accused`s home.

He provided a statement to constable Zeran and was told that he would be contacted if needed. [ 156 ] He was subsequently served with a subpoena for this trial. [ 157 ] His evidence is that on August 25th, 2016, he was in his backyard with his dog in the early morning hours. He now resides at 496 Fifth Street West which is next to the accused`s home. He alleges that the accused slid opened a living room window, pointed his finger at him and stated that the was going to “blow his fucking brains out”. [ 158 ] He states not having said anything to the accused.

He went in his house and called the police who told him not to worry, they would get him in Court. An officer later came to his home. [ 159 ] He goes on to explain how the accused and T.L. would call the police on him all the time and try to get him charged with thefts. There was bad blood between these individuals. [ 160 ] The essence of the statement given by this witness to the police at the start of this trial on August 22th, 2016 is that he had attended the accused`s home one early morning for coffee as he usually did.

He sat at the kitchen table and saw M. laying on the couch in the living room on her belly with her clothes to her ankles. She was wearing dark stretchy pants which were down to her ankles. She had a blouse on. He thought she was drunk and right out of it. She was snoring. He is 100% sure it was M. [ 161 ] He states having asked the accused to put a blanket over her. His response was “… She is just a cumslut…”

[ 162 ] The witness states that he went to his place and locked the door. [ 163 ] He indicates not remembering when he saw this but it was the same day he saw M. go to the hospital and had K.D.B. charged with sexual assault. [ 164 ] In cross-examination, he denies having told the officer that he was at the Courthouse on the “Sage matter”. He states not knowing who Sage is. [ 165 ] He also denies having had any contacts with M.L. and having been told by her that the matter was set for trial.

He found out from the newspapers or his computer. [ 166 ] He agrees that he had not provided a statement to the police prior to August 22 nd , 2016. He explains that he didn’t know the Court date and a friend told him he could go see the Crown. [ 167 ] He states that M. was alone on the couch and he didn’t see the accused touch her. [ 168 ] He never got together and play cards with M.. In fact he didn’t like her that much. K.D.B. [ 169 ] The accused is 46 years of age. His criminal record was filed as Exhibit #22.

He notes having spent 8 months of pre-trial custody most of which was at the Ottawa Carleton Detention Center. He has also been subjected to house arrest. [ 170 ] He lives with T.L. with who he has been in a relationship for 5 to 6 years. [ 171 ] He has a 25 year old son named J. [ 172 ] K.D.B. explains that he has many medical concerns including 3 massive heart attacks. Exhibit #23 is a list of the medication taken by him. He also suffers from sleep apnea and must sleep with a machine. He states that he cannot sleep without this machine. He stops breathing without this machine.

He wakes up without same and would suffocate without it. [ 173 ] In October 2015, he was residing at the residence on Fifth Street in Cornwall with T.L. and the complainant M. He moved there 15 years ago. [ 174 ] He notes that J.W. was his neighbour. They were pretty close. [ 175 ] His evidence is that the complainant lived with them for 3 weeks. Her dad had asked him to let her live with them. She started living there on September 18 th and left on October 4 th or 5 th . [ 176 ] She was sleeping in his now deceased father’s bedroom. He had his own room with T.L.

M.L. would sleep there on and off. [ 177 ] On October 1 st , M.L. had brought a guy named M.M. to live with her. He told him he had to leave. [ 178 ] K.D.B. explains that he was home with T.L. the night of October 5 th . He states that he usually goes to bed between 8 p.m. and 10 p.m. he guesses. He has a sleep apnea machine in his bedroom next to his bed. He usually gets up at 4-5 o’clock in the morning.

T.L. goes to bed when he does and wakes up when he does. [ 179 ] His evidence is that M.L. left the home at 4:30 p.m. with 2 friends on October 5 th . [ 180 ] He had driven to Bonneville to pick up M.M. from work. He believes he came back at 5:30p.m. M.L. was not there when he came back. He states that she had stolen his cell and computer lap top. He had another cell. [ 181 ] He went to bed at around 10:00 p.m. M.M. was there drinking beer. He had a couple of beers with M.M.. M.M. was in the house when he went to bed.

They both went to bed at the same time since M.M. had to work the following morning. [ 182 ] M.L. never came back. [ 183 ] He found out about the allegations when arrested by the police he believes on October 7 th . He was with T.L. at home when the police came to arrest him. [ 184 ] He then explains that there are often visitors around his home. M.M. was also living there. He states that M.L. knew he was charged for sexual offences. She would have stated wanting to go and knock the alleged victim’s “fucking teeth out”.

Everybody knew he was charged as it was in the papers. [ 185 ] His evidence is that M.M. was sleeping in same room used by M.L. [ 186 ] He testifies not having seen M.L. the night of October 5 th . She had left at 4:30 p.m. He didn’t see her prior to going to bed. [ 187 ] M.M. was still there. He drove M.M. to work the following morning. He had to be there for 6:00 a.m. [ 188 ] For his part, he was working at his ex-wife’s store which was opening that day at 7:00 a.m. He was there at 7:00 a.m. T.L. was with him. His Ex-wife S.S. and his daughter-in-law were also there.

He states that there was a pretty good turnout. [ 189 ] He is then questioned in regards to the pellet gun found by the police in a drawer at his home. He states that it was bought by

his father at the TSC store. It was in a drawer with his deceased father’s belongings. His father had a firearm registration. [ 190 ] The accused testifies that the complainant was “pissed” because he told her and M.M. to find their own place since they were doing drugs and drinking like “fish” She left that night and he hasn’t seen her since except in Court.M.M. had to be escorted away by the police who had been called by T.L. as he wouldn’t leave.

This occurred 2 weeks after his arrest. [ 191 ] He denies having threatened his neighbour J.W as alleged because he had provided a statement to the police on August 22 nd , 2016 when this trial started. [ 192 ] As already noted, K.D.B. describes being close to J.W.. They went fishing together, drank beer and had barbecues. He would come over every morning for early morning coffee. He would stay until 9, 10 or 11 and sometimes spent the entire day. [ 193 ] He alleges that J.W. moved on November 1 st , 2015 because T.L. wouldn’t have sexual relations with him.

While he was in jail, J.W. would have stolen his truck and smashed it. This was reported to the police who wouldn’t do anything. He also alleges that J.W. stole tools from him. [ 194 ] He states not having had any contacts with J.W. since his release from jail on April 27th, 2016. [ 195 ] K.D.B. explains that he could not have opened a living room window since all of the windows on the first floor were locked with screws as protection because of crimes in the neighborhood.

Furthermore, it was impossible to get closer than 4 to 5 feet of the windows because of tiles and furniture in front of same. [ 196 ] He recalls an incident when the complainant was in the living room on the couch, half naked with Mike L. and another guy. There were blankets on the couch. [ 197 ] He goes on to explain that he and T.L. were always together. He would bring her at his work. They were always together “24/7”. They would shower together. They were together at the bakery the night before until his curfew. He believes the bakery was opening at around 9:00 a.m. It was the grand opening.

They were there as of 7:00 a.m. There were tons of sales. [ 198 ] He alleges that the complainant had asked him a few times if she could take his medication specifically lorazepam. He states never having given her any. [ 199 ] He denies having had sexual contacts with her and states that he “doesn’t work sexually”. This is a side effect of his medication. [ 200 ] He also denies having made sexual comments to her. [ 201 ] He again notes that by reason of his sleep apnea, he can’t sleep anywhere else in the house.

He needs his machine to sleep. [ 202 ] Finally, he mentions that he was sharing a cell with his 25 year old son J. while in custody at the Ottawa Carleton Detention Center. [ 203 ] In cross- examination, the accused acknowledges being bound by a firearm prohibition. He states that he believed the firearm found by the police in his home in a drawer was a BB gun. It belonged to his father who passed away 7 years ago.

He had no knowledge of this firearm as it was part of his father’s possessions. [ 204 ] He also admits being bound by an undertaking with a condition to keep the peace and be of good behaviour. [ 205 ] In relation to the cocaine seized by the police again in his home, he states having plead guilty. He doesn’t remember where it was kept in the house. It was his cocaine. The officer told him the cocaine was in a lock box. He had keys for this box. T.L. had access to the cocaine. [ 206 ] He explains that he has been taking lorazepam for 20 years and that it has no effect on him other than calm him down.

It never knocked him out. He knows lorazepam is not to be mixed with alcohol as it says so on the bottle. He also states knowing that its effect increases when coupled with alcohol and could bring unconsciousness. Which explains why he never mixed both. [ 207 ] K.D.B. confirms having put up the sign shown on photograph 1-5 stating that his home was not a shelter. He did so because people would crash in his house. These people would ask him to sleep over and they would drink. He would ask them to leave. He is not sure when he put up this sign. It may be the day after the complainant left.

It is possible it was placed before she moved in. It was put up for people who used drugs and crashed his home. [ 208 ] He testifies that it became obvious that the complainant was using drugs. He told her she had to leave. She didn’t leave after he told her. He doesn’t know if she took all of her stuff from the room. She left on that day at 4:30 p.m. in a SUV vehicle with 2 individuals. It was apparent that she was a drug addict soon after she moved in. She placed drugs on the table and sniffed it. He told her to leave 4-5 days later.

It was apparent to him that she had a drug and alcohol problem. [ 209 ] His assumption was that she would pay to reside in his home. She was working at Tim Horton’s and Cedar’s. Her father told him he wouldn’t pay for her. [ 210 ] He is then questioned as to why he would leave his drugs readily available to her knowing that she had such a drug problem. Reference is made to the fact that he left the keys to the lock box with cocaine readily accessible and his prescription medication in a shoe box in the kitchen.

His response was that there was understanding that she knew these were his drugs and she wouldn’t touch it. [ 211 ] He testifies not having seen the complainant at 4:30 p.m. when she left with 2 individuals in a SUV. He was called by J.W. and his sister T.W. and told him about this.

[ 212 ] He identifies the items in the room used by the complainant as belonging to M.M..

None of it belonged to the complainant. [ 213 ] K.D.B. provides the following evidence in regards to J.W.: − They were close at one time − J.W. wanted to act as his surety but then robbed him; he hasn’t spoken to him since he visited him while in custody at the Ottawa Carleton Detention Center − He admits that the incident described by J.W. did take place but there were 2 males with the complainant on the couch; Justin and Mike were there with her ; she was not naked from the waist down; her pants were down but she had shorts on; she was under a blanket with Mike; T.L. was with them in the kitchen; there were no comments made − He recalls seeing J.W. at the Courthouse on August 22 nd , 2016; he wasn’t surprised to see him since he had matters in Small Claims Court; he was aware on August 25th , 2016 that he had given a statement against him and was served with a subpoena; he denies trying to dissuade or intimidate him − He admits knowing that J.W. lived at 496 Fifth Street West; when asked why he attended 494 Fifth Street West the morning of August 25 th , knowing that J.W.would be close by, he explains that he needed to change clothing − He alleges that while he was in jail, J.W. had stolen his truck and smashed it, tried to have sex with his wife and stole his motor boat − He states that J.W. would sleep up to 10:00 a.m. in the morning; he is reminded of his earlier evidence about J.W. attending his home for coffee early every morning; his response was that he meant “sometimes, every time” [ 214 ] The accused testifies that while he plead guilty in regards to the cocaine, he did so because he was told by the police that T.L. would be charged if he didn’t take the blame.

He states that Constable Lemire told him while in the cell where there is no video camera that he had to admit possession of the cocaine and if not T.L. would be charged. In fact, he indicates that the cocaine belonged to the complainant and he had told her that he would not give her cocaine back until she returned his cell and computer. He later indicates that he never told the complainant where the cocaine was since she knew. It was her cocaine which she kept in a lock box in her room. [ 215 ] He states “the cocaine was mine because it belonged to M.L.”. She had placed her cocaine in his lock box.

He explains that she stole his cell and computer when she came to get her belongings. J.W. and his sister T.W. were there and called him. He wouldn’t give her the cocaine because she stole his cell and computer. His belief is that this is why “this is happening” meaning being charged with the present offences. [ 216 ] Reference is made to K.D.B.’s statement to the police on October 8 th , 2015. A video of this interview was filed as Exhibit #24.

He is specifically challenged on why he would have told the officer that he was “being” charged because someone had stolen his drugs “ in the context of not having been told that the complainant had ingested lorazepam and that the nature of the drug was identified some time later. He responds that he was charged with sexual assault and that the alleged victim had been given a drug. He reasoned that if he didn’t give her the drug then she stole it from him. [ 217 ] He goes on to explain that she hounded him for drugs all the time but he never gave her any.

His pills were counted. [ 218 ] The question of the non-disclosure of his alibi was also the subject of cross-examination. He maintains that he wasn’t present and never told the police. This was raised for the first time in this trial.

Nor did he provide the names of the 5 witnesses referred to in his October 8 th , 2015 statement. [ 219 ] His evidence as to his whereabouts on October 5 th , 2015 is as follows: − Between 5:00 p.m. to 6:00 p.m. he was at Woodland Tree Services in Bonville picking up M.M. form work − He returned home with M.M. and T.L. at around 10 to 6 p.m. and dropped off M.M. − The complainant was not home − He and T.L. left and went to S.S’s bakery where they stayed up to 10 p.m. or 11 p.m. − The complainant was not home when they returned − M.M. was still there; he states that maybe he had a beer with M.M. − He was never in the complainant’s bed nor had sexual contacts with her since he wasn’t there [ 220 ] He denies having said anything inappropriate to the complainant and having walked in the shower.

The only time she called him a pig is when was he was eating. [ 221 ] While he states that he is unable to maintain an erection, he explains that he can with difficulty. He agrees that he is able to ejaculate.

[ 222 ] The question of his whereabouts on October 5 th , 2015 is revisited by Crown Counsel. He provides the following details: − T.L. did not go with him to get M.M. that night; he was alone − He told her to stay there and make sure to get his cell and computer back from M. S.S. [ 223 ] S.S. is the accused`s ex-common law spouse. Her criminal record was filed as Exhibit #25. [ 224 ] She testified that she opened a bakery. She believes the opening was on October 5 th , 2015. The night prior to the opening, she together with her husband, K.D.B. and T.L. worked at the bakery shop preparing for the opening.

She described painting, electricity and shelves being built. [ 225 ] K.D.B. and T.L. stayed there up to around 10:30 p.m.-11:00 p.m. The next morning her husband arrived at 6:00 a.m. while K.D.B. and T.L. arrived at 6:45 a.m. [ 226 ] She notes that while living with K.D.B., he couldn’t sleep without his machine. [ 227 ] In cross-examination, she explains that in 1992, she had used another person’s mother’s allowance cheque and was accordingly convicted of fraud.

The most recent 2016 fraud conviction relate to her depositing a cheque in an ATM and that here were no funds for this cheque. [ 228 ] She indicates having found out that she would testify in this trial on the previous day of her testimony. She states having looked at her paperwork and documents to identify the date the bakery opened. She is certain because she looked at these documents. She identifies October 4 th as the night before. [ 229 ] She explained that here was lots of last minute preparation.

The accused and T.L. were there up to 10:30 p.m. on October 4 th and there as of 6:45 a.m. on the 5 th . [ 230 ] Finally, she states that the last time she had shared a bed with K.D.B. was near the end of 2011. She doesn’t know of his present sleeping habits but states knowing that he stops breathing without his machine. J.T. [ 231 ] J.T. is the accused’s son who was born on September 14 th , 1992. He testifies having been his father’s cell mate for a period of 6 months while detained at the Ottawa Carleton Detention Center.

His criminal record was filed as Exhibit #26. [ 232 ] He notes that his father would snore while in the cell. He did not have a machine. He slept but it was like he wasn’t sleeping. [ 233 ] In cross- examination, he is questioned on some of the entries on his criminal record. [ 234 ] His evidence is that he spent 6 months with his father in a cell and that his father did not sleep for the first 2-3 months. He then indicates that he slept some but not well. He agrees with the suggestion that his father had to be asleep at one point in order to wake up.

Detective Constable Matthew Lemire [ 235 ] The officer was recalled as a witness by defence on consent of the Crown. [ 236 ] He is questioned in regards to when J.W. attended Court and asked to speak to the officer. [ 237 ] J.W. told him that “ he was here for that Sage girl” [ 238 ] The officer explained that Sage was the name of the complainant in the other sexual assault charge against K.D.B. [ 239 ] Constable Lemire is then questioned by Crown counsel in regards to the October 8 th , 2015 video statement provided by the accused.

The officer provides the following information: − K.D.B. was in a cell at the police station prior to the interview; he escorted him to the interview room ; he had no conversation with him while in the cell; he never told him to plead guilty to something − K.D.B. told him during the video interview that he had 5 witnesses; the officer invited him to provide the names of these witnesses; the accused never provided these names nor was he provided with these names by anybody else. − He first heard the names of these individuals during the trial; he couldn’t investigate because he was never given the names − He would have investigated had he been given the names − He never told the accused that the complainant had been given one of his pills; never told him anything about the pill being a long white pill; he himself found out that the pill was lorazepam on October 14 th , 2015 when he received the medical notes from the nurses; it was then confirmed by CFS. − T.L. was charged in relation to the cocaine; the charges were ultimately withdrawn against her but this was not at his request; he had no say in the withdrawal of the charge against her.

Position of the parties Defence [ 240 ] Counsel for Mr.

K.D.B. argues that the Crown has not proven guilt beyond a reasonable doubt. [ 241 ] The submission is that the complainant is not a credible witness for the following reasons: - She had a serious habit of getting intoxicated - The fact she went to live at the accused’s residence knowing that he was charged with sexual offences against another complainant - Her intent was to set-up K.D.B. so that he would face more charges - She doesn’t acknowledge being in a relationship with M.M. - While knowing the significance of D.N.A evidence through television shows such as CSI, she chose to wash away the evidence; she took active steps to destroy evidence - There was no DNA evidence and substance found to support her allegations; the expectation is that same would have been found on items seized by the police such as bed sheets - Her version that K.D.B. was sleeping next to her is contradicted by the evidence that he requires a machine to sleep because of his sleep apnea; this is supported by the other defense witnesses - The suggestion that she had bruises is not supported by the evidence of the ASAP nurses - She had used lorazepam in the past so that she would have known its effect - There is no evidence to support her version [ 242 ] J.W. is also said not to be a credible witness.

The Court should reject the Crown’s suggestion that the accused threatened him as a means of dissuading him from testifying.

Defense counsel notes the following: − He is contradicted by Constable Lemire on whether he had referred to the complainant as Sage when he attended the Courthouse on the first day of trial − He had offered to act as a surety for K.D.B. − Since T.L. was residing with K.D.B. it is unlikely that the complainant would have been half naked on the couch as suggested by J.W. − His demeanor in the witness box is not consistent with his suggestion that he was intimidated by the accused [ 243 ] In regards to defence evidence, it is noted that K.D.B. testified that the complainant was not present in his home on the evening in question. [ 244 ] The point is made that the accused is not relying on an alibi defence.

The evidence of him being at the bakery at the relevant time serves to establish that he had other events occupying his life at the relevant time. [ 245 ] While it is acknowledged that the dates provided by defence witness S.S. and the accused do not match, this should not be seen as a concern because the defence is not an alibi. It simply shows that the witnesses are mistaking as to dates. Nothing should turn on this. [ 246 ] K.D.B. evidence that he cannot sleep without a machine is crucial in this case. He is supported by other defence witnesses.

This amounts to confirmatory evidence on a significant point. [ 247 ] As for the drawing of negative inferences, counsel submits that the complainant was asked whether she had left the residence that night. Furthermore, the circumstances are such that the Court should exercise its discretion and not draw inferences. In fact, even if the complainant had been asked the questions raised by the Crown, the reality is that she wouldn`t have changed her story. As such, the rule in Browne v. Dunn was never breached.

Crown [ 248 ] The Crown submits that based on a W.D. analysis, the evidence establishes the accused`s guilt beyond a reasonable doubt on both the sexual assault and the count relating to the stupefying drug provided to the complainant. [ 249 ] It is also argued that the facts for those 2 offences should form the factual basis for the breach of failing to keep the peace and being of good behaviour contrary to

section 145.

[ 250 ] Counsel’s submission is that K.D.B. is not a reliable and believable witness.

His evidence does not raise a reasonable doubt. [ 251 ] Specifically, the Court is asked to draw negative inferences against the accused and that such inferences should be drawn on 3 distinct basis: - Defence’s failure to call corroborating witnesses namely T.L., M.M. and J.W.; those witnesses were referred to by the accused as capable of supporting his evidence and yet they were not called; as such an adverse inference should be drawn against his credibility - The essence of his defence is an alibi which was never disclosed to the authorities prior to trial; his evidence is that he wasn`t present when this happened ; he presented his ex-wife S.S. as a witness in support of this defence; the lack of timely disclosure allows for the drawing of a negative inference - Defence has breached the rule in Browne v.

Dunn on a number of significant points including the following: • The suggestion that the complainant had stolen his cell phone and computer • His holding on to the complainant’s cocaine • The question of her involvement with M.M. at the relevant time [ 252 ] While the Court should be cautious in weighing J.W.`s evidence, consideration should be given to this after-the-fact conduct.

It is circumstantial evidence consistent with a consciousness of guilt. [ 253 ] K.D.B. is said to have provided inconsistent evidence such as : - Ownership of the cocaine seized by the police - Whether or not he can function sexually - The issue of his inability to sleep without a machine - The suggestion that he cannot use his hands - His suggestion on the first day of his testimony was that the complainant wasn’t present; on the second day his version was that he wasn`t present - J.W. having coffee with him every early morning later followed by a statement that this individual slept in late every morning [ 254 ] The suggestion is that K.D.B. `s actions are not consistent with his beliefs.

Examples include: - Placing a sign on his home stating that it wasn’t a shelter and yet allowing individuals such as the complainant to live there - Leaving his medication in plain view knowing that the complainant is a serious drug addict - Not wanting M.M. to continue residing with him yet he drives him to work back and forth [ 255 ] Crown Counsel submits that the complainant is a credible and reliable witness.

Reference is made to the following considerations: - The manner in which she testified - There are no major contradictions - She correctly identified the pill amongst others - The expert evidence is supportive of the way she describes feeling - The same type of pill was found in her system - She is corroborated in ways she couldn`t have known by the expert witness and presence of the medication in her system - Nothing should turn on the fact that no DNA was found on items such as the blankets - It is not unreasonable for her to have wanted to remove semen off her body; victims of sexual violence react differently - There is no reason why she would want to set up the accused as suggested by defence counsel - The fact that she went through an invasive sexual assault examination is recognized by the Ontario Court of Appeal as supporting credibility [ 256 ] The end result is that convictions should follow since the complainant is believable and reliable.

The presence of semen and the circumstances establishes sexual contact without her consent as she was unable to do so. The law

[257] In deciding this matter, the Court will be guided by the following relevant principles: Essential elements of offences [258] The essential elements of sexual assault and administration of a stupefying drug can be briefly summarized as follows: Sexual Assault 1. The accused intentionally applied force to the complainant. 2. The complainant did not or could not consent; consent means the voluntary agreement of the complainant to engage in the sexualactivity; there is no consent when the complainant expresses by words or conduct, a lack of agreement to engage in the activity. 3.

The accused person knew there was no consent or was reckless and/or willfully blind on whether there was consent. 4. A belief in consent is also vitiated if the accused person did not take reasonable steps, in the circumstances known at the time, toascertain that the complainant was consenting. 5. The contact took place in circumstances of a sexual nature. Administer a stupefying drug 1. The accused furnishes, gives or supplies the complainant with a stupefying drug. 2. Stupefying is understood to mean a state of little or no sensitivity to surroundings; confusion; inability to think clearly. 3.

The accused’s intent is for the drug to act as a means to commit a separate indictable offence. Fundamental principles of our Criminal Law 1. The presumption of innocence provides that K.D.B. is presumed innocent and so remains if and until the Crown proveshis guilt. 2. The burden of proving guilt rests solely on the prosecution. There is no burden of proof placed on an accused person.K.D.B. does not have to prove anything. 3. The Crown’s burden is to prove each of the essential elements of the offences already noted beyond a reasonable doubt. 4.

I have instructed myself in regards to the concept of reasonable doubt in accordance with the Supreme Court of Canada’sdecision in R. v. Lifchus (SCC), [1997] 3 S.C.R. 320, namely:

i) It is fundamental to the presumption of innocence; ii) It is not a doubt which is far-fetched or frivolous; iii) It is not based on sympathy or prejudice; it is based on reason and common sense; it is a doubt that logicallyarises from the evidence or the lack of evidence; iv) It is not enough for the Court to believe that an accused is likely or probably guilty;

v) However, the Crown is not required to prove guilt on the standard of absolute certainty; vi) The Courts’ task is to consider all of the evidence and decide whether it is sure that the accused committed theoffence; an acquittal must follow if at the end, based on all of the evidence, or the lack of evidence, it is not sure; vii) Where reliability and credibility are the ultimate issues, the Court is reminded that the rule of reasonable doubtapplies to the assessment of reliability and credibility; 5.

Since K.D.B. has testified in this trial and the outcome revolves around an assessment and appreciation of the credibilityand reliability of the witnesses, the proper analytical framework is found in R. V. W.D. (SCC), [1991] 1 S.C.R. 742: 1. Firstly, if the Court believes the accused, an acquittal must follow 2. Secondly, if the accused is not believed but his evidence raises a reasonable doubt, then he must be found not guilty 3.

Lastly, even if the Court is not left with a reasonable doubt with the accused’s evidence, the question forthe Court becomes whether based on the evidence that is accepted, it is convinced beyond a reasonable doubt by this evidence that theaccused is guilty Assessment of reliability and credibility [259] In assessing the evidence of the witnesses, the Court must carefully and with an open mind consider all of the evidence. It mustdecide how much or little to believe and rely upon the testimonies. [260] The Court may believe some, none or all of a witness’s evidence.

[261] This assessment is an exercise in common sense. There is no magic formula, no crystal ball, no scientific formula to assist theCourt. [262] The Court is alive to the important distinctions between the concepts of reliability and credibility. Credibility relates to awitness’ sincerity and belief that he or she is speaking the truth. Reliability relates to accuracy.

It is possible for a credible witness not tobe reliable. [263] In properly assessing the witnesses in this trial, the Court will consider all of the circumstances including the following: - The witness’s ability to observe - The ability to recall the relevant events - How the witness presents in the witness box; this measure does not mean whether the witness appears to tell the truth ; it is notbased on an “appearance of sincerity” as looks can be deceiving; what it does mean is that having regard to the particulars of the witnesssuch as age, sophistication and limits, it is proper to consider things such as: • Whether the witness was argumentative • Whether he or she was responsive to the question • Whether the witness was evasive • The presence of hesitation in answering • The showing of appropriate emotions - Whether the evidence finds support in extrinsic evidence such as other witnesses, physical evidence or the circumstances - Whether, to the contrary , the version is contradicted by such extrinsic evidence - The ability to provide a detailed account of the relevant event; details which are significant - The presence of an interest in the outcome, a motive, any bias or partiality; the Court is mindful that the question of motive is to beaddressed with caution; I am guided by the instructions of the Ontario Court of Appeal in R.v.

Batte (ON CA), [2000]O.J. no 2184: • There is no burden on an accused to demonstrate that a complainant has a motive to fabricate • The absence of a demonstrated motive to fabricate doesn’t necessarily mean that there is no motive • Nor does the absence of a demonstrated motive to fabricate establishes that the witness is telling the truth • The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility - Whether the witness’s version is internally consistent being mindful that some details may be more significant than others - Whether the witness’s version is plausible when looked at through the lens of common sense, life experience, logic and/or reason - Whether the version is unreasonable and/or improbable when considered against the backdrop of facts which are not in dispute. - Whether the witness has a criminal record for crimes involving dishonesty Distinct legal issues raised in this trial Alibi 1. “Alibi” means elsewhere.

It is an assertion that when the alleged unlawful conduct took place the person charged with itwas elsewhere, and thus it was impossible for him or her to have committed the offence − R.v. Rawn [2015] O.J. no 2875 2. The disclosure of an alibi defence must meet two requirements: • It should be given in sufficient time to permit the authorities to investigate • It should be given with sufficient particularity to enable the authorities to meaningfully investigate − R.v. Cleghorn (SCC), [1995] 3 S.C.R. 175 3.

The failure to provide proper disclosure does not vitiate the defence but it may result in a lessening of the weight that thetrier of fact will accord it. An adverse inference may be drawn in weighing the alibi evidence. − R. v. Cleghorn op. cit.

− R. v. Vickerson (ON CA), [2005] O.J. no 2798 Failure by Defence to call witnesses [264] The principles governing the failure by defence to call witnesses are articulated by the Ontario Court of Appeal in R. v. N.L.P.2013 ONCA 773 , [2013] O.J. no 5878 and can be summarized as follows: 1. The defence is ordinarily under no obligation to call a witness. 2. An important exception is where a defence is raised on which the burden of proof is on the defence such as in an alibi defence. 3.

It can also arise when an accused person raised the corroborative significance of a witness to the defence in his or her testimony. 4. The failure to call a witness by defence should only be used with great caution. Our system proceeds on the basis that counselconducts the case and is not called upon or permitted to explain the conduct of a case. There are many reasons why counsel may choosenot to call a witness. 5. Such failure cannot, in any event, be used as positive evidence of guilt. An adverse inference can be used to undermine thedefence evidence to which it relates.

The Court may infer that the missing evidence would be unfavorable to the defence. Rule in Browne v. Dunn [265] As explained by the Ontario Court of Appeal in R. v. Quansah 2015 ONCA 237 , [2015] O.J. no 1774, the rule inBrowne v.

Dunn is premised on the notion that fairness requires a party, intending to impeach a witness called by an opposite party togive this witness an opportunity while in the witness box, to provide any explanation the witness may have for the contradictoryevidence. [266] Failure to provide this opportunity tends to support an inference that the opposing party accepts the witness’s evidence in itsentirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later. [267] Being a rule based on fairness it is said not to be a “fixed rule”.

Its application lies within the discretion of the Court anddepends on the circumstances of each case. [268] The rule does not require that every scrap of evidence on which a party intends to contradict the witness be put in cross-examination.

As stated by the Court of Appeal at paragraph 81: “ … The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’scredibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whateverthat the witness’s story is not accepted” [269] The effect of the rule will vary in accordance with the subject matter not touched in cross-examination. A subject which is oflittle significance in the case and the resolution of critical issues will likely have little bearing on an accused’s credibility.

However, theabsence of cross-examination on a central feature is likely to “have a more telling effect on an accused’s credibility.” [270] Also, the rule is not violated where it is clear, in all the circumstance, “that the cross-examiner intends to impeach the witness’sstory. [271] Finally as explained by the Ontario Court of Appeal in R. v.

Quansah, at paragraph 121. the failure to comply with this rule: “… has relevance for the credibility of the witness who was not confronted with the contradictory evidence, as well as the credibility ofthe witness who gave the contradictory evidence.” After-the- fact conduct [272] The actions of an accused person following the commission of an offence can provide circumstantial evidence of culpability forsuch crime. [273] As explained by Justice Weiler in R. v.

Peavoy (ON CA), [1997] O.J. no 2788, at paragraph 26: “Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on humanexperience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.” [274] Evidence of interference with a witness may be considered by the Court circumstantial after-the-fact conduct consistent withguilt. − R. v. Tran 2001 NSCA 2 , [2001] N.S.J. no 2

[275] It may also be considered by the Court on the issue of an accused person’s credibility. − R.v. Bulatei [2012] N.W.T.J. no 29 Discussion [276] In accordance with the W.D. analytical framework, the first question for the Court is whether the accused is believed. If not,whether his evidence raises a reasonable doubt. [277] K.D.B’s evidence raises a number of significant concerns for the Court. The cumulative effect of these makes it such that he isfound not to be a credible and reliable witness. He is not believed.

Nor does his evidence raise a reasonable doubt in the Court’s mind. [278] Generally, his evidence is found to be unreasonable and improbable. There are significant internal and external inconsistencies.It is also marked by exaggerations on material points. [279] The Court will now speak to specifics in support of its findings in regards to the credibility and reliability of the accused’sevidence. [280] While the subject matter of the cocaine may appear somewhat collateral at first blush, it is ra

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