The complainant — and primary Crown witness — in a historical sexual assault trial being heard in front of a judge and jury at the Court of Queen’s Bench this week firmly denied having engaged in any consensual sexual activity with the man she is accusing of sexually assaulting her 46 years ago, court heard Tuesday morning.
The accuser returned to the witness stand for cross-examination from defence lawyer Garth Bendig Tuesday morning. She had testified Monday that the accused, the husband of someone close to her, had sexually assaulted her while she was living in a separate room in the home he and his wife shared in 1973. The accuser corrected the record Tuesday to confirm that the alleged attack occurred in 1974.
The Daily Herald is choosing not to name the accused nor reveal the nature of the relationship between his wife and the complainant to avoid identifying the woman who is alleging that she was sexually assaulted.
Bendig began his cross-examination of the complainant by going through her early family history and her medical history.
He also questioned her on her actions following the alleged assault.
She said she consciously avoided the accused. Once she moved out she didn’t return to his home but did continue to have a relationship with his wife. She said the two of them remained in continuous contact, but that the accused “was basically non-existent.”
“I didn’t want to be around him or have anything to do with him,” she said.
Still, as she continued to have a relationship with his wife, she also saw him, whether it was when they came to visit her during her time living in Innisfail, Alta, to help watch her daughter, or installing a skylight in her Dryden, Ont. home.
The complainant said the accused and his wife never stayed long, and never in her house.
The two women had a rift for a few years in the early 2000s. The complainant had grown distant from her son, but he remained in touch with the accused and his wife. As such, the complainant was not invited to her own son’s wedding, but the accused and his wife were.
The complainant, though, said that the relationship was mended a few years later.
Bendig then turned to the night of the alleged assault.
He asked if the sexual activity had been initiated outside of the bedroom, elsewhere in the house.
The complainant denied that had happened.
She was asked if there were ever sexual relations between the two of them in the kitchen or living room.
The complainant was succinct in her answer.
At that point, the questioning was halted by the judge, Justice Scherman.
Scherman spoke with the lawyers before returning to the jury to give them a mid-trial instruction.
He read from Section 276 of the Criminal Code, which was recently added by the Canadian government.
He told the jury that “evidence that the complainant has engaged in sexual activity, whether with the accused or any other persons is not admissible to support … (that) the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief.”
While that section of the Criminal Code was added well after the alleged assault occurred, it is a procedural element. Unlike with substantive elements, such as charges themselves, Scherman said, in procedural matters the current edition of the Criminal Code applies.
He cautioned the jury that other evidence of sexual activity “should never be used” to imply an alleged victim was more likely to consent or is less likely to be believed.
Scherman, though, let the questioning continue, as he told the jury he was assured that the question referred to the same incident and that Bendig was not alleging a separate incident of sexual activity between the complainant and accused. The allegations Bendig put to the complainant were reflected later that day in the testimony of the accused, who would take the stand in his own defence.
Bendig asked the complainant whether the incident that night began outside of the bedroom.
“Not at all,” the woman replied, insisting her first memory is the accused standing, in his underwear, at the foot of her bed.
She said she didn’t remember earlier that evening. She insisted, though, that it was a normal evening, that she went to bed around 10 p.m., her usual time, and that the man’s wife was at work late that night.
She repeated her earlier testimony, that she opened her eyes to see him standing there and asked him what was wrong. She didn’t know why he was there.
“I was trying to reason why he would be there,” she said, “unless something was wrong.”
The next thing she remembered was him pushing her over.
She said, other than “what’s going on?” and “What about (your wife),” she didn’t tell him to stop. She testified that she didn’t understand what was happening.
“I didn’t want to go to the worst place,” she said Tuesday. “I couldn’t fathom it.” She told the court that once she realized what was about to happen, she was in shock.
When she asked him what was going on, she said, he shushed her.
“He just said ‘shh.’ … There was no more conversation.”
She was asked if violence was used. She had told the police there was not. In court, she said there was.
After some back and forth, she acknowledged that there wasn’t violence, but that the act itself was violent.
“He didn’t beat me up or anything like that,” she said. “Forcing himself on me — the entire act to me was violent.”
Bendig turned to the immediate aftermath of the incident.
He asked her if she told a doctor she was pregnant at the time.
He asked her if she was concerned about health effects because of her pregnancy.
She said she didn’t tell the doctor, but was watching for any complications. None arose.
She said she didn’t want to “break (the accused’s wife’s) heart,” so she said nothing.
While she stayed at the house, she said she actively worked to avoid the accused, even walking blocks in the cold to get out of the house and avoid him.
Bendig asked about the alleged second incident — where the complainant alleges she threatened to tell the accused’s wife, and he left her alone.
The woman said it began just like last time, with the accused standing at the foot of her bed.
“It was like the Matrix,” she said. “I thought, ‘oh my god, he’s going to try it again.’”
When she told him not to touch her, she said, he respected that.
Crown calls second
Crown Attorney Kristen Hubbard called a second witness to the stand Tuesday.
That witness was also close to the accused and the complainant.
She also testified to the complainant having a breakdown in her relationship with the accused’s wife over her son’s wedding.
She also testified that the complainant first told her about the alleged attack in October of 2016, a few months after the death of the accused’s wife.
“All of us have always been very close,” she said.
The second witness testified that the complainant was “very upset,” and crying when she took her aside during the intermission of a hockey game to share her story.
The witness agreed to ensure that future gatherings would only include the complainant or the accused. Previous gatherings had included both.
When cross-examined, she confirmed that she, too, had lived with the complainant and his wife for a short period.
The accused never approached her in an improper way, she testified.
With the second witness’ testimony concluded, the Crown’s case was concluded.