Case Name:

R. v. [REDACTED]

Between

Her Majesty the Queen, and

[REDACTED]

[REDACTED]

Ontario Court of Justice

Toronto, Ontario

JUDGE: [REDACTED]

Heard: [REDACTED].

Oral judgment: [REDACTED].

(27 paras.)

Counsel:

[REDACTED]: Counsel for the Crown.

[REDACTED] [REDACTED]: Counsel for the Accused.

RULING ON COMMITTAL

1 JUDGE: [REDACTED] (orally):-- On [REDACTED], [REDACTED] was arraigned on charges of sexual assault, administering a stupefying drug and aggravated sexual assault, all alleged to have occurred on December 14, 2002 in relation to [REDACTED]. He elected judge and jury and a preliminary hearing was commenced.

2 [REDACTED] testified. She indicated that she decided to skip school for part of the day on [REDACTED] and walked with her friend [REDACTED] to [REDACTED]'s house. They planned to buy beer and then alcohol and then get someone to buy cigarettes.

3 Later that evening, they consumed pizza and beer. [REDACTED] stated she became drunk. She also stated that she was thirsty at one point in the evening for a soft drink, I think she referred to it as Sprite. She went to get the pop at a store with a male who had been in the house that evening, whom she identified as [REDACTED].

4 She stated that she laid down in the back seat of the vehicle because she felt nauseous. She stated that [REDACTED] came into the back seat of the car, removed her pants and shirt and sexually assaulted her. She stated that he bit her neck and breast area and had intercourse with her. She said, quote, "I didn't like it. I didn't want it to happen. I had never had sex before." She did not remember bleeding, but she did remember being sore. She did not remember any skin breaking.

5 [REDACTED] testified she was a certified sexual assault nurse examiner on December 14, 2002 at Sick Children's Hospital and Women's College Hospital. She had experience as a women's health care nurse and had extensive experience in examining thousands of women sexually active.

6 She conducted a forensic evidence examination on [REDACTED] and found her to be coherent, but upset. The examination revealed redness to her neck and the area between her breasts, as well as a laceration on her breast consistent with a bite. [REDACTED] acknowledged a hickey is the same thing. She also noted two notches or tears to the vaginal area. She concluded her physical evidence was consistent with penal penetration.

7 I also heard evidence from [REDACTED] and [REDACTED] relating the events of the evening as they saw it, and Constable [REDACTED] testified about speaking with [REDACTED] on December 14, 2002, when she told him about being penetrated by a male whom [REDACTED] had referred to in her testimony as [REDACTED], identified at this proceeding as the accused, [REDACTED]

8 Crown Counsel urges that there is not sufficient evidence to commit [REDACTED] on the charge of administering a stupefying drug. I agree. On that charge, he will be discharged.

9 Defence Counsel concedes that there is some evidence that meets the test in [REDACTED] to commit not on aggravated sexual assault set out in section 273 of the Criminal Code, but on the indictable offence in respect of the same transaction of sexual assault causing bodily harm, as set out in section 272.(1)(c) of the Criminal Code.

10 It is agreed by Counsel that I direct my mind to either aggravated sexual assault, or sexual assault causing bodily harm and, accordingly, on the first count of sexual assault, I am going to discharge [REDACTED], as that charge in subsumed in the charge that I am about to address.

11 Aggravated sexual assault is defined in section 273.(1) of the Criminal Code as follows:

"Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant."

12 Sexual assault causing bodily harm is defined in section 272.(1)(c) as follows:

"Every person commits an offence who, in committing a sexual assault, causes bodily harm to the complainant."

13 Bodily harm is defined in section 2 of the Criminal Code as follows

"Bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that in more than merely transient or trifling in nature."

14 There is no definition of wound or wounding in the Criminal Code.

15 I am satisfied that there in some evidence before me that would meet the test in [REDACTED] that a sexual assault occurred, having regard to the bite in the breast area and the sexual intercourse. I am satisfied there is some evidence before me that bodily harm, in accordance with the definition in section 2 of the Criminal Code, occurred, mindful of the evidence of [REDACTED] relating to the bite in the breast area and the tears in the vaginal area. The issue is whether these amount to wounding.

16 "Wounding" is referred to in Black's Law Dictionary as follows, and I quote:

"An aggravated species of assault and battery consisting in one person giving another some dangerous hurt."

17 The Concise Oxford Dictionary, 9th Edition, does not refer to wounding, but does refer to wound and it says.

"(1) an injury done to living tissue, a cut or blow, et cetera, especially beyond the cutting or piercing of the skin.

(2) an injury to a person's reputation or a pain inflicted on a person's feelings."

18 Taken then collectively, the dictionaries seem to suggest something which is aggravating, leading to a dangerous hurt or something beyond the piercing of the skin.

19 I was referred to Mr. Justice Blishen's recent decision in R. v. Palmer [2007] O.J. No. 1981, a decision of the Ontario Superior Court of Justice. That case refers to the decision in the Alberta Court of Queen's Bench in R. v. Hilderman, [2005] A.J. No. 243, where wounding was defined as,

"... requiring a cutting or breaking of the skin or tissue, more than a cuticle, from which bleeding results."

20 It is of interest to note that Mr. Justice Martin in that decision conceded that such a broad definition may include minor abrasions or cuts which are only trifling and transient and then goes on to day as follows:

"It would be illogical to call an abrasion or a minor cut which bleeds a wound when that injury is insufficient to amount to bodily harm. Therefore a wounding must contemplate and describe an injury which in more serious than minor bodily harm."

21 At paragraph 85 of Palmer, Mr. Justice Blishen states, and I quote:

"A wound is described as: a cut or breaking of the skin which bleeds, which is more than transient or trifling, and which will leave a scar if not surgically altered."

22 I reviewed my notes in their entirety and I am not aware of any evidence that relates to scarring. The bite was compared to a hickey. In the Hilderman case, the injury required a significant number of stitches to close the cut, which bled profusely. I have no evidence stitches were required.

23 In [REDACTED]. v. [REDACTED], [REDACTED], also referred to in [REDACTED], Judge [REDACTED] held that the aggravated assault section contemplated a more serious assault. In that case there were only two or three stitches. In Palmer, the laceration was about 10 to 11 centimetres long, bright red and left a scar of s vivid red colour. This was as a result of a razor being used in the assault.

24 Having considered the totality of the evidence before me, I am not satisfied there is some evidence before me that would satisfy the test in [REDACTED] in relation to an aggravated assault, but I am satisfied that there is some evidence that meets the test that there was a sexual assault causing bodily harm.

25 Accordingly, on that charge [REDACTED] will be committed for trial. [REDACTED], stand up, sir. You are ordered to stand trial to the next court of competent jurisdiction. The next assignment court date is Thursday, June 28, 2007, at the courthouse situate at 361 University Avenue, Toronto, at 9:30 a.m.

26 (REPORTER'S NOTE: At this point, discussion followed concerning the assignment court date.)

27 THE COURT: I will remand him then to the assignment court June 14, 2007 at 9:30 a.m.


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