Her Majesty the Queen – v. –, 2018 ONSC 98

CITATION : R. v. Ishmael, 2018 ONSC 98 COURT FILE NO. 15-1561 DATE : 20170104 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen – and – Kevin Ishmael Frank Schwalm, for the Crown Adam Forbes, for the accused Heard: October 17, 18, 19 and 23, 2017 RESTRICTION ON PUBLICATION By court order made under s. 486.4(1) of the Criminal Code , any information that could identify the complainant, or a witness, shall not be published in any document, or broadcast or transmitted in any way.

Bale J.: Overview [ 1 ] The accused is charged with two counts each of assault and sexual assault ( ss. 266 and 271 of the Criminal Code ). The offences are alleged to have taken place during a week that the complainant and the accused spent together in July of 2015. [ 2 ] The Crown’s evidence was given by the complainant, her common law husband (WB), and a friend of the accused (RS) at whose home the complainant, and the accused, spent much of the week in question. The accused testified upon his own behalf.

Summary of evidence Evidence of the complainant [ 3 ] The complainant testified that she was sexually assaulted at the accused’s apartment. She denied ever having consensual sex with him. She said that the assaults had taken place on the Wednesday and Friday of the week that they spent together. Her evidence of these assaults was consistent throughout the trial.

However, her evidence of the surrounding events contained a number of inconsistencies. [ 4 ] During her examination-in-chief, and on cross-examination, she testified that on the Monday, she had texted the accused to let him know that one of his friends was in hospital, in a coma. The accused informed her that he was at RS’s apartment. The complainant then went to RS’s apartment where she spent the day smoking crack with RS. The accused was there selling drugs, but did not use drugs himself. At some point, WB called her phone, said that he wanted to pick her up, and then did so. She went home for the night.

On Tuesday morning, WB dropped her off at her methadone clinic, on his way to work. Following her appointment at the clinic, she returned to RS’s apartment where she and RS again smoked crack. Again, the accused was there selling crack, but did not use it himself. She had no recollection of where she stayed that night. [ 5 ] When on cross-examination, it was suggested to her that she had first gone to RS’s apartment the previous Friday, the complainant first said that she had no recollection of having done so.

However, after being referred to the statement that she gave to the police, she agreed that she had gone to RS’s apartment, and smoked crack, the previous Friday, after being informed by her lawyer that the CAS was proceeding with an adoption of her two daughters. She continued to maintain, however, that she had gone home on Monday night, and had been driven to the methadone clinic by WB the following morning.

The court then recessed for lunch. [ 6 ] When the cross-examination continued after the lunch break, the complainant testified that she had stayed at the accused’s apartment on the Monday night, and that the accused had paid for her to take a cab to her methadone clinic on Tuesday morning. When asked why she had changed her evidence, she said that she had reviewed the transcript of the preliminary hearing over the lunch break.

She emphatically denied going to a pawn shop with the accused. [ 7 ] The complainant testified that no sex occurred on the Monday or Tuesday nights, but that the accused sexually assaulted her on the Wednesday night. The assault included slapping her face, pulling her hair, and vaginal penetration. After the assault, she took a shower, and then fell asleep in the accused’s room. Although the accused had first taken a shower himself, she did not call for help from his roommates (one of whom was a prior acquaintance of hers), nor did she use her cell phone in an attempt to get help.

[ 8 ] The complainant testified that on the Thursday morning, she texted her sister, RV, and asked for a ride downtown. However, rather than RV, WB showed up in his pickup truck. He then proceeded to dump her belongings out on the front lawn, and threatened to call the police if she did not return his cell phone to her. She did not tell him that she had been assaulted the night before, nor suggest that calling the police would be a good idea. Her explanation for not telling him about the assault was that she was “embarrassed just to come out and say it”, and that she was afraid of the accused.

She also said that the accused had apologized, and promised that he would not do it again. [ 9 ] The complainant testified that after WB left, she and the accused took a bus downtown, and again spent the day at RS’s apartment. She did not tell RS about the assault, or ask to use RS’s phone in order to get help. She said that she cried, and that when asked, she told RS that nothing was wrong. She and the accused then returned to his apartment for the night. She says that no sex occurred that night. On Friday morning, she and the accused went back downtown.

They spent most of the day at RS’s apartment, and then returned to the accused’s apartment for the night where she says that she was sexually assaulted for the second time, in a similar manner. On Saturday morning, at some point when the accused was away from his apartment, she borrowed a phone from one of his roommates, and called WB who came and picked her up, and took her home. [ 10 ] At home on Saturday, WB accused the complainant of having sex with the accused, and called her a “dirty pig”. She did not respond to the insult, nor did she tell him that she had been sexually assaulted.

She told him that she had been using drugs. She agreed that things had been somewhat tense, and that she did not know whether she would be allowed to continue to live there. [ 11 ] On Sunday morning, she told WB that she had been sexually assaulted, and at his suggestion, she reported the assault to the police. Evidence of WB (common law husband of complainant) [ 12 ] WB testified that the complainant went to see RS on the first Friday, and that she called him to say that she would not be coming home that night.

He said that he remembers her coming home on the Sunday, and then going back to RS’s on Monday. [ 13 ] He said that he got in contact with RV on the Wednesday, knowing that she would be in touch with the complainant over the internet, for help in finding her. RV told him that she had seen the accused and the complainant the day before at a pawn shop.

RV then obtained the accused’s address from the complainant, and provided it to WB. [ 14 ] WB said that he then set the complainant up, by having RV tell her that she would pick the complainant and the accused up, and then showing up himself. [ 15 ] Outside the accused’s apartment, WB texted the complainant to inform her that he was there to pick up his laptop, internet stick, and cell phone. She came out of the house with the laptop and internet stick, but not the cell phone. She went back in and got the cell phone, after he threatened to call the police, if she did not.

He asked her to get into the truck and go home with him. She said that she could not. He asked why not. She said: “I just cannot, right now”. He told her that he would go and get her things and drop them off. She told him that she did not care what he did with them. The whole episode took approximately 15 to 20 minutes. [ 16 ] WB said that he went home, picked her things up, and dropped them off on the front lawn of the accused’s apartment. He thinks that was on “Thursday or Wednesday”. [ 17 ] The next WB heard from the complainant was on Saturday morning. She called and asked him to pick her up.

She sounded scared. She was crying and just wanted to go home. He did pick her up, and one of the accused’s roommates helped them load some of her things into his truck. Other things were left behind. [ 18 ] At home on Saturday, WB asked the complainant what had been going on for the past week, but was unable to get any information. At that point, although he allowed her to stay the night, he was “pretty much done” with the relationship.

He told her that he was “done”, and thought that he had made himself quite clear. [ 19 ] On Sunday morning, the complainant told him that she had been sexually assaulted, but they have never discussed the details. He convinced her to go to the police, and decided that she could move back in. Initially it was to “lick her wounds”, but they have remained together, and have a child. Evidence of RS (friend of accused) [ 20 ] At the time in question, RS had been friends with the accused for about two years. Their children played together on a weekly basis.

When WB came to the door looking for the complainant, the complainant told her to tell him that she was not there. The complainant said that she did not want to be with him, and that he was a stalker. While they were at her apartment, she never saw the complainant and the accused kiss, but she saw them hug each other, and saw the complainant sitting on the accused’s lap while they watched a movie. She denied any consumption or sale of drugs at her apartment. Since the accused was arrested, they have seen each other infrequently, because he moved away from Peterborough, as did his daughter and her mother.

Evidence of Kevin Ishmael [ 21 ] The accused testified that he had met the complainant on two prior occasions. He said that he was kind of interested in her, and that she showed interest in him, and complimented him on his appearance. [ 22 ] He testified that he had sexual intercourse with the complainant on two occasions during the week in question - on the Tuesday, at RS’s apartment, and on the Friday, in the shower at his apartment.

He said that the sex was consensual on both occasions. “[He] kind of asked the question, and she said she did not mind.” He denied the sexual assaults about which the complainant had given evidence. He also denied having sold any drugs.

[ 23 ] The accused testified that he spent time at RS’s apartment with the complainant on the first Friday, and then again on the following Monday. She went home with him on Monday evening. They watched a movie, and then both fell asleep. [ 24 ] On Tuesday morning, he gave the complainant money to take the bus to her methadone clinic. He met her at the bus station following her appointment. She was with her sister, RV. The complainant told him that she would like to smoke some crack. He did not have any money, but agreed to pawn some of his jewellery.

He had money coming to him the following week which would allow him to reclaim it. They went to a pawn shop. He went inside and pawned two gold chains that his mother had given to him. He asked the complainant and RV to wait outside on the sidewalk, because he did not want them to know how much money he was getting. He then gave the complainant something like a hundred dollars, and she purchased a couple of grams of crack. She asked him to hold onto the drugs for her, so that she would not do them all at once. He doled pieces out to her on request.

He said that he had never seen crack before. [ 25 ] At some point during the day on Tuesday, RS left her apartment, and he and the complainant had sexual intercourse on her bed. She had smoked some crack by that time. When RS returned, they had finished, and he was sitting at the kitchen table with the complainant on his lap. That evening, the complainant again stayed at his apartment. They fell asleep on his bed hugging each other, but no sex occurred. [ 26 ] On Wednesday, they spent the day again at RS’s apartment, and the night again at the accused’s apartment. No sex took place.

On Thursday morning, WB showed up at his apartment and took the complainant’s cell phone. After he left, they went back downtown to RS’s apartment. While there, he got a call from one of the other tenants at his apartment building saying that WB had dumped the complainant’s things on the driveway. He and the complainant then went back to his apartment, and put some of her things into the garage. They then had something to eat, watched a movie, and slept together on his bed. Again, no sex occurred. [ 27 ] On Friday, they again spent time at RS’s apartment, and then returned to the accused’s apartment.

He said that he asked her if she would like to have sex, and that she was “into it”. She joined him in the shower, and they had sex. She had not smoked crack that day – it had run out on Tuesday. Afterward, they both went to bed, and slept until Saturday morning. No further sex occurred. On Saturday morning, he went grocery shopping, and when he returned, she was gone.

Defence position [ 28 ] Defence counsel argued the following points: • that unlike the evidence of the complainant, the accused’s evidence remained consistent throughout the trial; • that the complainant’s evidence that she stayed with the accused because she had nowhere else to go should not be believed: although she said that she had a poor relationship with her sister RV, WB’s evidence was that they had been close at the time; • that on Thursday when WB went to the accused’s apartment to retrieve his laptop and cell phone, he and the complainant had a 15 to 20 minute conversation during which she did not tell him that she had been assaulted the night before; • that on Thursday when WB went to the accused’s apartment to retrieve his laptop and cell phone, the complainant had a clear avenue of escape, but refused to go home with him; • that both the complainant and the accused testified that it was on the Thursday that WB arrived at the accused’s apartment, but if it was the Wednesday as suggested by WB, then the complainant made up a lie when she testified as to the reasons why she did not tell him about the assault; • that the complainant had a motive to fabricate her allegations of sexual assault; • that the complainant failed to call for help from the accused’s roommates, one of whom was a previous acquaintance; • that the complainant’s evidence that she had not gone to the pawn shop was contradicted by the statement made to WB by her sister, and that her sister would have had no reason to tell WB that she had seen her at the pawn shop, unless she had; and • that the complainant’s evidence that she had bruises as a result of the assaults was not corroborated either by photographs or evidence from WB.

Position of Crown counsel [ 29 ] Crown counsel candidly and fairly acknowledged at the outset of argument that the evidence did tend somewhat to veer toward the “third prong” of W. (D.). However, he argued that I should believe WB’s evidence that he attended at the accused’s apartment on the Wednesday, and that if I did, the defence argument would be significantly weakened, because the first assault would not yet have taken place.

However, he acknowledged that if I were to find that the attendance had, in fact, been on Thursday, the complainant’s failure to mention the assault to WB “might turn my head in terms of significance.” [ 30 ] Crown counsel also takes the position that the evidence given by the accused of sexual intercourse at RS’s apartment was evidence of a sexual assault. He argues that as a result of the fact that the complainant had been smoking crack, she lacked the capacity to consent.

Discussion [ 31 ] In support of his argument with respect to the sex at RS’s apartment, Crown counsel says that the complainant had no recollection of what happened on the Tuesday, after she arrived at RS’s apartment, and that her lack of memory supports his argument that she lacked the capacity to consent. However, I do not believe that to have been her evidence. What she said was that after they got to

RS’s apartment, she and RS smoked crack that they got from the accused, and listened to music. She said that people were in and out of the apartment buying drugs from the accused. She said that she and the accused stayed at RS’s apartment for pretty much the whole day. What she did say that she could not remember was how much crack she had smoked that day, or what time she left the apartment. On her examination-in-chief, she went as far as to say that she might have woken up there.

However, on cross-examination, she was clear that RS had driven the accused, and her, to his apartment for the night. [ 32 ] I do not accept Crown counsel’s position that a sexual assault occurred at RS’s apartment. The accused testified that the sex was consensual. The complainant testified that it did not happen. There was no evidence of how much crack she smoked before they had sex, if they did, and no evidence of the effect that any particular amount of crack would have had on her capacity to consent.

The complainant’s evidence was that she remained in control when smoking crack, and was able to function normally. [ 33 ] While I cannot take an adverse inference from the complainant’s conduct following the assault that she said had occurred on the Wednesday, it is evidence that I may consider, and have considered, in assessing the overall credibility of her evidence.

I have also considered the reasons that she gave for not taking what defence counsel referred to as multiple avenues of escape. [ 34 ] Although there is no burden on an accused to prove a motive to fabricate, the presence or absence of a motive is a relevant factor to be considered in the assessment of credibility. [ 35 ] In this case, defence counsel argues that the complainant had a motive to fabricate. The motive was to re-establish a home with WB. On the Saturday, he had accused her of being unfaithful, and had made it clear to her that their relationship was over. She said that she had nowhere else to go.

By making up the story that she had been sexually assaulted, and did not have consensual sex with the accused, she might persuade WB to take her back. While it appeared that he initially did so on a provisional basis, they remain together to this date. I agree with defence counsel that this would be a plausible motive for her to fabricate her story.

Disposition [ 36 ] Having rejected Crown counsel’s argument that a sexual assault occurred at RS’s apartment on the Tuesday, I am left with the question of whether the assaults described by the complainant did, in fact, occur. [ 37 ] On this issue, and after careful consideration of all of the evidence, and the submissions of counsel, I am unable to decide whom to believe. I am therefore not satisfied beyond a reasonable doubt that Kevin Ishmael is guilty of assault, or sexual assault, and I find him to be not guilty on all counts. “Bale J.” Released: January 4, 2018 CITATION : R. v.

Ishmael, 2018 ONSC 98 COURT FILE NO. 15-1561 DATE : 20170104 ONTARIO SUPERIOR COURT OF JUSTICE Her Majesty the Queen – and – Kevin Ishmael REASONS FOR JUDGMENT Bale J. Released: January 4, 2018