minicounsel

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Date: 2021 11 15 Court File No.: Halton 19-S0437

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Loic SIMEU

Before: Justice D.A. Harris

Heard on: August 3, 4, 5, 6, & 27, September 3 & 10 and October 18, 19 & 20, 2021. Reasons for Judgment released on: November 15, 2021

Counsel: Lorna Bolton ....................................................................................... counsel for the Crown Marco Forte................................................................ counsel for the accused Loic Simeu

Introduction

1Loic Simeu has been charged with:

(1) unlawful confinement;

(2) obtaining sexual services for consideration;

(3) assault police; and,

(4) uttering threats.

2Crown counsel elected to proceed by Indictment. Mr. Simeu elected trial in the Ontario Court of Justice.

3Mr. Simeu pled guilty to obtaining sexual services for consideration and pled not guilty with respect to the other charges. The trial began.

4The Crown called AP and MM and Police Officers EM, CB and JM as witnesses.

5I allowed an application to admit a 911 call.

6A number of other exhibits were entered including an extract from AP’s phone records, a copy of her Leo List ad from that day, diagrams of the layout of Mr. Simeu’s condominium and a copy of his criminal record.

7I was also shown two video-recordings of events at the police station.

8Mr. Simeu testified in his own defence.

9AP testified that Mr. Simeu threatened her and confined her in his residence.

10Crown counsel argued that Mr. Simeu confined AP by physically blocking her way and / or by his threats.

11Police Constable CB testified that Mr. Simeu kicked him while they were in the booking area at the police station.

12Mr. Simeu denied blocking AP’s way or threatening her or confining her in any manner.

13He also denied kicking Constable CB.

14Accordingly, the principles in R. v. W. (D.) are applicable.

15If I believe Mr. Simeu’s evidence, I must find him not guilty.

16Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.

17Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

18In determining this, I must keep in mind that Mr. Simeu, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities". R. v. Starr, 2000 SCC 40, at para. 242.

19This is a tough standard and it is so tough for very good reason. As Cory J said in R. v. Lifchus:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted. R. v. Lifchus, at para. 13

20After considering all of the evidence in this case I was not satisfied that the Crown had proven Mr. Simeu guilty of any of the alleged offences beyond a reasonable doubt.

21My reasons for this are as follows.

22The case against Mr. Simeu depended largely on my assessment of his evidence and that of the Crown witnesses.

Credibility and Reliability

23In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence (R. v. Morrissey per Doherty J.A. at para 33; R. v. H.C., 2009 ONCA 56 per Watt J.A. at para. 41; R. v. Slatter, 2019 ONCA 807 per Trotter J.A. at para. 60; Paciocco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at pp. 32 to 33). Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. (R. v. J.J.R.D. per Doherty J.A. at para 47; R. v. J.W., [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26).

24Finlayson J.A. stated in R. v. Stewart that:

I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record. R. v. Stewart, at para. 19.

25At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. (R. v. Norman per Finlayson J.A.; R. v. Stewart, at para. 19; R. v. G.G. per Finlayson J.A. at paras. 14 to 19; R. v. Gostick per Finlayson J.A. at paras. 15 to 17. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193 per Doherty J.A. at para 66).

26I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.

27With respect to reliability I note that both Mr. Simeu and MM stated early in their evidence that they did not recall everything that happened. AP told me that she suffered from narcolepsy which negatively affected her memory and that these events occurred a long time ago. She said remembering was difficult. She was trying her best, but her memory was not good.

28MM was often relying on things that AP said to her. Her evidence was often her interpretation of what was going on rather than her actual observations. I will say more about this later.

29I will also have some comments regarding the reliability of the police officers’ evidence later in these reasons.

30With respect to credibility, I have considered a number of factors. These include the following.

Inconsistencies

31Crown counsel pointed out alleged inconsistencies in Mr. Simeu’s evidence.

32Counsel for Mr. Simeu pointed out alleged inconsistencies in the evidence of the Crown witnesses.

33In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said and what other witnesses said. (R. v. Slatter, 2019 ONCA 807, at para 59). Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies. (R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.) per Rowles J.A. at para 29; R. v. M.G., at para. 24; R. v. Stewart, at para. 27; R. v. A.M., 2014 ONCA 769, at paras. 12 to 13).

34Crown counsel pretty much argued that any inconsistencies on the part of the Crown witnesses fell into the first category while the inconsistencies on the part of Mr. Simeu fell into the latter one. Counsel for Mr. Simeu argued the exact opposite. I was satisfied that many of the inconsistencies on the part of all of the witnesses fell into the first category. I will say more below about the inconsistencies that I found impacted on my assessment of their reliability and credibility.

Motive to Fabricate

35Crown counsel also argued that AP and MM had no motive to fabricate the allegations against Mr. Simeu.

36The presence or absence of a motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process. (R. v. Jackson, [1995] O.J. No. 2471 (Ont. C.A.) at para. 5; R. v. Bartholomew, 2019 ONCA 377, at paras. 20 & 21; R. v. Ignacio, [2021] O.J. No. 475 (Ont. C.A.) at para. 52). It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the witness’ evidence in the light of all of the other evidence (R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.) at para. 28; R. v. L.L., 2009 ONCA 413 per Simmons J.A. at para 44; R. v. O.M., 2014 ONCA 503 per Cronk J.A. at para 107; R. v. Bartholomew, 2019 ONCA 377, at para. 22; R. v. Dindyal, [2021] O.J. No. 1931 (Ont. C.A.) at paras. 22 & 23). Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate. (R. v. Czibulka per Rosenberg J.A. at para. 44; R. v. L.L., 2009 ONCA 413, at para 44; R. v. O.M., 2014 ONCA 503, at para 107; R. v. Bartholomew, 2019 ONCA 377, at para. 23).

37In this case I was not satisfied that either AP or MM had a motive to fabricate. On the other hand, I was far from satisfied that they did not.

38Crown counsel argued that I should treat the fact that MM was a reluctant witness as supporting the argument that she had no motive to fabricate here. I disagree with this submission because there might be other reasons why she was reluctant to be involved in this trial. The most extreme of these would be that she knew that Mr. Simeu had done nothing wrong and she preferred not to have to lie to the court in order to support her good friend AP. I am not saying that this is the explanation for her reluctance to testify here. I am simply stating that I cannot be sure of the reasons for her reluctance and I will not speculate either way on this.

39Crown counsel also argued that Mr. Simeu had a motive to fabricate in that he did not want to be convicted of these offences.

40The Ontario Court of Appeal has made it clear that an accused’s interest in being acquitted may be considered as one factor when weighing his testimony. However, it is impermissible to assume that he will lie to secure his acquittal. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. (R. v. B. (L.) at para. 7; R. v. Murray at para. 12; R. v. M.J. at para. 9; R. v. D.T.G., 2011 ONCA 40).

41Arbour J.A wrote:

The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused's interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur. R. v. B. (L.), at para. 7.

Collusion

42During his submissions, counsel for Mr. Simeu accused AP and MM of collusion.

43Crown counsel quite properly pointed out that counsel had not suggested this when cross-examining either witness.

44More importantly, I found there to be no evidence before me to establish collusion and I gave no weight to this submission in making my decision.

The Rule in Browne v. Dunn

45Crown counsel referred to this rule on a number of occasions and argued that counsel for Mr. Simeu had failed to suggest a number of things to the Crown witnesses, thereby breaching the rule.

46She specifically stated however that she was not seeking any formal relief under this heading.

47Accordingly, I am not going to say anything further about Browne v. Dunn here. (R. v. Ali, [2021] O.J. No. 3394 at paras. 128 to 149). I am fully aware of the rule.

48While I have noted several occasions where counsel for Mr. Simeu failed to suggest a number of things to the Crown witnesses, I agree that none of these had any meaningful impact on my decision in this case. Where I considered any breach of the rule to be at all noteworthy, I have said so.

49One example of this can be found in my comments in the section above on collusion.

Prior Criminal Record

50Crown counsel also stressed the fact that Mr. Simeu had a criminal record.

51Section 12 of the Canada Evidence Act permits cross-examination of an accused with respect to prior convictions. It has become a common practice for an accused to address this fact during examination in-chief and that occurred here.

52The Supreme Court of Canada in R. v. Corbett, stated that

What lies behind s. 12 is a legislative judgment that prior convictions do bear upon the credibility of a witness. In deciding whether or not to believe someone who takes the stand, the jury will quite naturally take a variety of factors into account. They will observe the demeanour of the witness as he or she testifies, the witness' appearance, tone of voice, and general manner. Similarly, the jury will take into account any information it has relating to the witness' habits or mode of life. There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility. R. v. Corbett, at para. 21.

53The Supreme Court quoted the reasons of Martin J.A. in R. v. Brown (1978) which read as follows:

The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness. Obviously, convictions for offences involving dishonesty or false statements have a greater bearing on the question whether a witness is or is not likely to be truthful, than convictions for offences such as dangerous driving or assault. The probative value of prior convictions with respect to the personal trustworthiness of the witness also varies according to the number of prior convictions and their proximity or remoteness to the time when the witness gives evidence. A jury might well be justified in concluding that a conviction, even for a serious offence committed many years before, was of little if any value in relation to the credibility of a witness if he had since that time lived an honest life. R. v. Corbett, at para. 113.

54Mr. Simeu has been convicted of a number of offences involving dishonesty. The most recent conviction occurred within the last year.

55No other witnesses have a criminal record.

56There is other evidence in this case.

Use of the 911 Call

57I ruled that the 911 call in this case could be admitted for the following non-hearsay uses:

(1) Evidence of the demeanour of AP and of MM: and

(2) As part of the narrative.

58Counsel for Mr. Simeu agreed that I should make that ruling.

59I also ruled, despite the vigorous and continued objection of counsel for Mr. Simeu, that the 911 call should be admitted as evidence under the res gestae exception to the hearsay rule.

60My reasons for doing this are as follows.

61Hearsay statements are generally inadmissible for the truth of their contents. Spontaneous declarations are an established exception to the hearsay rule and are presumptively admissible in evidence. Statements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested. (R. v. Nguyen, 2015 ONCA 278, at para. 145: R. v. Khan, at p. 540).

62Strict contemporaneity is not required and admission of the statements is to be assessed "not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time including those which tell against the possibility of concoction or distortion”. (R. v. Nguyen, 2015 ONCA 278, at para. 147 quoting R. v. Dakin, at para. 20).

63Each case must be assessed on its own unique circumstances to determine whether there are sufficient assurances of reliability. (R. v. Nguyen, 2015 ONCA 278, at para. 150).

64In this case, the statements of both AP and MM were clearly made under pressure or emotional intensity.

65The statements were made contemporaneously with the alleged offences.

66The 911 call was recorded and provides the best evidence of what each woman said.

67Finally, both AP and MM were available for cross-examination.

68I recognized that I had a residual discretion to exclude the evidence if the probative value of the evidence was outweighed by its prejudicial effect.

69I was satisfied that this was not the case here.

70For those reasons I admitted the 911 call as evidence under the res gestae exception to the hearsay rule.

Other Evidence

71Phone records for AP’s cell phone were also introduced into evidence.

72Finally, I was shown two video recordings of events in the booking area of the police station. One recording had an audio component while the other was video only.

73Both counsel argued that the videos were of Nikolovski quality and asked me to rely on what I saw in those videos.

Unlawful Confinement and Threatening Charges

74I will apply the above principles to the unlawful confinement and threatening charges first.

75AP is an important witness with respect to these charges.

76I found there to be significant reasons for me to question her credibility.

77The most significant reason is that she outright lied in her first statement to the police.

78She told the police that she and Mr. Simeu had met under circumstances that did not involve sex for pay.

79She explained that she said this because she believed that it was against the law for her to receive payment for sexual services and she did not want to get into trouble.

80That may have been her reason for lying but it leaves me with the fact that AP was prepared to lie to people in a position of authority if it served her purposes.

81In fact, she went further than that and deleted things from her phone so that the police would not see them. In short, she destroyed evidence that could have been relevant to this case.

82She later said in one of her statements that she kept her cell phone close to her at all times for a number of reasons including calling police if necessary.

83That is inconsistent with the fact that despite the degree of danger she claimed to have been in, she did not call the police here.

84She called two other people instead.

85The first was a male friend. He was the brother or stepbrother of a woman who had been a co-worker of hers when she was an exotic dancer. If she ever referred to him as the woman’s best friend, she may have been confused. Beyond that AP could not tell us much about him.

86She had only known him by his street name. She did not remember even that now. She did not remember anything about him or the co-worker that would have made it possible to identify him. His contact information was amongst the material that she deleted from her phone.

87She did not mention him in her initial statement to police. She testified that she simply did not think to do this. She did mention him in her KGB statement. She never identified him to the police.

88She claimed that she called him because he was in the area and might be able to help her out.

89The first question that immediately came to my mind from this was how did she know that he was in the area? According to her, she did not know where she was and she was also unable to tell us where this male was.

90The second question was how was he going to help her out? Was he going to defuse the situation “boy to boy” as she testified? If so, how was he going to do that? Alternatively, was he going to threaten Mr. Simeu? Mr. Simeu testified that this was what happened.

91I am unable to give credence to the suggestion that she called someone who she could not identify later to act as a mediator in order to extricate her from her perilous situation.

92It strikes me as more likely that this person was called to threaten Mr. Simeu and that is what he did.

93It also strikes me as more likely that she knew who this person was and that she conveniently forgot how to locate him after the fact because it served her purposes to not bring him into these proceedings. In making these observations I note that the unidentified male would not be in any trouble if events occurred as AP said they had. He might be in some trouble however if the events had occurred as Mr. Simeu said they did.

94When the male friend failed to accomplish what she wanted, AP still did not call the police.

95She called her “sister” MM. Counsel for Mr. Simeu made much of the fact that AP and MM were not biological sisters. I was satisfied however that the two women genuinely viewed each other as sisters.

96Why? Was MM supposed to convince Mr. Simeu with a well reasoned appeal? Or was she supposed to threaten him? If so, was she to threaten him with bikers or with police?

97Further, was MM supposed to convince Mr. Simeu to let AP go or was her intention to convince him to pay AP more money?

98These are questions that I am still unable to answer to my own satisfaction.

99In any event, it was MM who decided to call the police.

100Did she do so because Mr. Simeu had already been threatening AP or was it because she realized that he was reacting badly to being threatened himself?

101Whatever the reason for calling 911, neither AP nor MM told the police that this was a dispute between an escort and her dissatisfied client. Instead MM said, “She’s being held captive in a condo right now” and “I just got a telephone call from her telling me ‘Like listen, these guys are holding me captive. They won’t let me leave’.”

102The 911 call continued for 1 hour and 5 minutes, from 1:58 to 3:03 am. The transcript covered 47 pages.

103Throughout this 65 minute call, the 911 operator asked several times for any information that AP and MM had that might assist the police.

104AP knew his name. She did not provide this information to the 911 operator. She simply said that it was a French name.

105AP and MM both knew his cell phone number. Neither of them provided this to the police. MM testified that she never thought to do this and the 911 operator never asked for it.

106The operator asked for a street name. The answer given was that there were no street names. It was a new development. This was an incorrect statement. AP clearly knew the street name because she gave it to the 911 operator when asked if he had ever said the street name. But this was 20 pages into the transcript of the conversation and after the police had been trying a number of techniques to locate her.

107She never provided a street number. Mr. Simeu testified that he had given her his full address and that he saw AP entering something into her phone as he gave her that information. It certainly would have been a prudent safety precaution for her to have not only recorded the address she was going to but to have also sent that information by text or email to her “sister”

108AP testified that she did not send such information to MM and MM testified that she did not receive anything like that.

109AP eventually described his car as a black Hyundai crossover with Ontario plates. The police eventually found this black Hyundai crossover with Ontario plates. This shows that AP was not totally oblivious to her surroundings. She did however fail to share this information promptly with police despite the fact that it was information that would have permitted the police to locate her sooner.

110I find these cumulative failures to provide pertinent information to the police as being inconsistent with APs claims to needing police assistance.

111It was however consistent with her later actions when she outright lied to the police.

112There are other inconsistencies in what was said to the 911 operator and what was actually happening.

113At page 4 of the transcript MM states, “they’re standing in the bathroom with her, they won’t let her leave”.

114At page 5 she said, “They won’t, they won’t let her leave. Oh my god, oh my god. How do you get yourself in these messes bro?”

115That last comment was directed by her to AP. When asked what she meant by it, MM replied that she herself had been in the industry for years and never had such problems. AP had called her about things before but nothing like this where MM felt the need to call the police. It did not happen a lot but it had happened.

116This explanation failed to resolve the questions that her initial comment raised in my mind.

117At page 6 MM states, “They’re trying to get in the bathroom” and at page 7 “yeah they’re trying to get in the bathroom again.”

118What has happened here? Just two pages earlier they were in the bathroom with her. When did they leave? If they left, why are they now trying to get back in? Perhaps more importantly, if they had been in the bathroom and did nothing to AP then, why was it such a big deal if they got in again?

119The other possibility is that MM was not accurately assessing what was going on and that she was giving incorrect information to the 911 operator.

120There are certainly examples of that.

121At page 8 MM said, “She’s in the bathroom barricaded”.

122AP was never barricaded in the bathroom. At most she had the door closed and locked. The word “barricaded” is certainly more dramatic but it was not used accurately here.

123At page 11 MM said, “They’re speaking Haitian. Like they’re speaking Creole.”

124They were never speaking Haitian or Creole. They were speaking French.

125At page 25 MM said, “They are coming in the bathroom” and then “They are in the bathroom” but then she makes it apparent that they were not in the bathroom but “They are telling her get outta the bathroom”.

126At page 43 MM said, “They’re on the roof?”

127They were not on the roof. They were never on the roof.

128Such mistakes lead me to question MM’s reliability as an observer and reporter of the events that were actually taking place.

129AP also made a number of incorrect statements to the 911 operator, or else MM passed them on incorrectly.

130At page 21 they indicated that, “He parked the car in the garage.”

131The police found the car parked outside. It was not in the garage.

132On the same page they indicated that, “he has a thing in his house that detects if people are in his house and its beeping”.

133It would appear that he did not have such a security device. It certainly did not alert him to the presence of the police when they arrived.

134At page 39 they indicated, “There’s no unit numbers on the door”.

135The police saw the unit number on the door when they arrived.

136Again, all of these mistakes in what MM and AP reported to the 911 operator caused me to be concerns about the reliability of the allegations being made here.

137Other questions arising out of these allegations also concern me.

138Why did AP think that Mr. Simeu or his friend would physically hurt her?

139They were in the midst of having sexual intercourse when she told him that his time was up and that he had to stop. He was unhappy with this but he stopped.

140He had ample opportunity to get physical with her before she went into the bathroom but he did not do this.

141According to AP, both Mr. Simeu and his friend got into the bathroom with her at some point and neither of them laid a hand on her. In fact, the friend left the bathroom promptly when she told him to leave.

142Neither man tried to take the money from her at any time.

143I was left uncertain as to who was more concerned about the money, Mr. Simeu or AP?

144Crown counsel argued that it was important to Mr. Simeu who needed it to pay restitution in his upcoming court case. This is clearly incorrect. He was spending it on sex with AP. He did not have it earmarked for restitution.

145On the other hand, the money appears to have been more important to her. She did not even think of giving any of it back to Mr. Simeu in return for being allowed to leave the terrifying situation that she alleged that she was in. She was so scared but she did not give any money back.

146Her position on the money is also inconsistent with her ad on Leo List which read in large font bolded letters “Top quality services or money back 100 %”.

147When Mr. Simeu asked for money back claiming that she had not performed the services as promised, her response was to say, “That’s not how it works”.

148She testified that she did provide top quality services and that she did so in a professional manner.

149Yet she was having sexual intercourse with him when she checked her phone for the time. I can see how a client might think that such behaviour was not very professional.

150AP agreed that it would be unprofessional for her to phone someone else while on a “call” with a client and she was adamant in her evidence that she did not do that here.

151Her telephone records indicate otherwise.

152Entries which Mr. Simeu claimed represent an exchange of texts between him and AP provide a basis for determining the timing of the encounter between the two of them.

153Crown counsel argued that the exchange of texts shown on AP’s phone records were not texts between her and Mr. Simeu. She argued that the phone number which Mr. Simeu claimed as his was in fact not his number.

154I disagree with this argument for the following reasons.

155Both AP and Mr. Simeu testified that they texted each other that night.

156Both testified that she used her personal phone number. This was confirmed by her Leo List ad.

157The timing of these texts is such that they could be the ones between AP and Mr. Simeu. Further there are no other texts shown in those records which could reflect the exchange between them.

158There are some inconsistencies between these records and the evidence of Mr. Simeu and I will address those shortly. In the meantime, however, I am satisfied that these phone records provide evidence of the times when Mr. Simeu and AP were texting each other.

159Combining this evidence with the testimony of AP and Mr. Simeu, I am satisfied that the official start time of the outcall was 11:07 pm. AP agreed that this was the start time.

160AP and Mr. Simeu agreed that he paid for two hours of her time.

161Accordingly, Mr. Simeu had paid for AP’s services up until 1:06 am.

162AP testified that she did not call her male friend or anyone else before that time was up.

163Mr. Simeu testified that she called “time” well before two hours had expired.

164The phone records show an outgoing call from her phone at 12:32:35 am. This call lasted for 121 seconds. AP conceded that this appeared to be the call to her male friend.

165If so, it was made a full 30 minutes before Mr. Simeu’s time was actually expired.

166This is inconsistent with her evidence above and consistent with that of Mr. Simeu. This is clearly a material matter in this case and accordingly, the inconsistencies in her evidence could and did reasonably lead me to question both her credibility and reliability.

167There were other inconsistencies that were not as significant but I still considered them.

168She testified that they told her they were Haitian and from Quebec. She was correct in stating that they were from Quebec. She was wrong about them being Haitian. I am satisfied that it is more likely that she got this misinformation from MM who had simply assumed that French-speaking Black men from Montreal would be Haitian. MM’s attitude towards Black men in general was made evident when she testified that she subsequently told AP that she should not see “Black guys”.

169AP told the first police officer that someone barged into the bathroom and hit her leg with the door. She and Mr. Simeu both testified in court that the bathroom door opened out.

170Accordingly, it would have been impossible for someone to barge into the bathroom and hit her leg with the door.

171Ordinarily, I would have classified this as an inconsistency on a minor matter or a matter of detail that is normal and should not affect the credibility of a witness. In this case, though, when confronted with this during cross-examination, AP conceded that the two statements were inconsistent but still insisted that both were true. That caused me concern as to both her reliability and her credibility.

172Other inconsistencies, such as whether Mr. Simeu’s friend was harmless or not definitely fell into the category of not affecting her credibility.

173Before I look at the evidence of Mr. Simeu, I wish to comment on the fact that Crown counsel argued at one point that the fact that Mr. Simeu agreed with many things that AP said provided corroboration for her evidence. Counsel for Mr. Simeu made the same argument but in reverse. Her agreement with the things that he said provided some corroboration for him. Both of them are correct but I fail to see how this boosts the credibility of either of them to the exclusion of the other.

174There is one point I wish to address however.

175During cross-examination of Mr. Simeu, Crown counsel asked him if he recalled AP testifying that he had told her that he was African. He answered “yes” and Crown counsel then brought out the fact that Mr. Simeu was in fact from Africa and that this corroborated AP’s evidence to that extent.

176The problem with this is that AP did not testify to that. She was asked during cross-examination if she recalled saying that to the first police officer. She replied that she did not recall that. She never adopted the suggested statement as part of her evidence.

177Instead her only evidence as to Mr. Simeu’s origins was that he told her that he came from Haiti. I have already addressed this earlier.

178That is not to say that there were no problems with Mr. Simeu’s evidence.

179There were many.

180There were a number of inconsistencies in his evidence regarding the exchange of texts between AP and him.

181He testified that she responded to each text that he sent to her and that there were no substantial gaps between texts. The phone records showed that both of these statements were clearly incorrect.

182When confronted with this during cross-examination, Mr. Simeu recalled that he had likely stopped to purchase gasoline and “protection” (presumably meaning condoms) while en route to her hotel. This sudden recollection struck me as being contrived.

183Mr. Simeu also testified in chief that his last text to her said “I am here” and she responded by texting him her room number. The phone records contradict this in that she never responded to the last few texts at all.

184Mr. Simeu testified to the fact that AP knew he had been to jail before, explaining that he had said this to her and to her male friend and to MM in response to their threats to him. This was also put to both AP and MM during their cross-examination.

185He said nothing in-chief about how AP would have known that he had just got or got off a house arrest. When questioned about this during cross-examination, he suggested that it must have come up during one of the casual conversations they had before the disagreement arose between them.

186Quite frankly, this explanation strikes me as plausible but the fact that he did not mention it earlier and the fact that nothing was put to AP about it caused me concern.

187His evidence regarding money issues also caused me concern.

188In chief he indicated that they discussed rates right at the beginning of their initial exchange of texts.

189He also said they intended to have an incall at her hotel.

190But he suggested during cross that they had not finalized the length of the call or the exact cost.

191If so, how did he know how much money to take with him?

192He testified that he did not recall how much money he took with him.

193He was not concerned about having enough cash because he had a debit card and could have withdrawn money if he needed it.

194Nobody asked him the question that immediately came to my mind which was where was he going to withdraw this money? How could he be sure that there was an ATM anywhere near the hotel?

195My final unanswered question is, why did he take the full $450 from the safe in the condo if he was already carrying money that he had taken to the hotel and which was clearly earmarked for paying AP?

196The result of all of this was that I was left with the impression that Mr. Simeu was improvising as he responded to the questions that were being asked in this area.

197Mr. Simeu’s evidence was definitely inconsistent with that of AP and MM on many occasions.

198He said that AP’s male friend and MM both threatened him.

199AP and MM testified that they did not.

200Crown counsel argued that I should believe AP and MM because it would not make sense for the male friend and MM to threaten someone that they did not know when AP was alone with that person and in that person’s home. They did not know anything about Mr. Simeu and certainly could not know how Mr. Simeu would react to such threats.

201Crown counsel further argued that AP would not have had them do these things when they would put AP at risk, both that night “and later”.

202In response to this last submission, I note the following.

203AP knew his name and where he lived. She knew his telephone number. She could describe his car. She knew he had a criminal record. This information would have made it quite possible for police to identify him and to locate him.

204On the other hand, he did not know her real name. He knew her telephone number but she could easily change that – which she did. He knew where she was staying but she and MM were moving out the very next day. He knew what she looked like and that she advertised on Leo List.

205Realistically, she was more of a future threat to him than he was to her.

206Further, if AP was going to avoid doing anything that might antagonize this stranger then and there, why would she wait until they were in the midst of sexual intercourse to inform him that his time was up and he would have to pay more for them to continue.

207One obvious answer to all three rhetorical questions asked by Crown counsel and my question as well, is that people sometimes do foolish things. I cannot assume that someone would not have done something simply because it might have been a foolish thing to do.

208I have noted that the conversation between AP and her male friend lasted 121 seconds.

209I cannot be certain that two minutes would not be sufficient time for AP to explain her situation to her friend and then for the friend to threaten Mr. Simeu.

210I can however say that the call described by AP strikes me as being more consistent with the relatively short nature of the call.

211Mr. Simeu said that he had only one conversation with MM – when she called him on his phone. MM and AP said that he spoke with MM twice, once on his phone and once while on speaker on AP’s phone. There is no independent evidence to corroborate one side or the other on this.

212Mr. Simeu said that AP suggested that they change the incall to an outcall and that he agreed to this. AP said that he suggested the change and that she simply agreed to this.

213Crown counsel asked why would AP suggest an outcall? Outcalls are more dangerous than incalls. They involve travel time. However the same factors come into play in deciding why she would go on an outcall at all. AP did that here and had no qualms about it. She clearly charged Mr. Simeu accordingly. I was satisfied that none of this was a relevant factor in determining who suggested the change.

214Based on the evidence before me, I do not know who suggested that they change the incall into an outcall. Further I find that nothing really turns on this.

215AP testified that Mr. Simeu suggested that they have sex a second time. He said that she suggested it.

216Crown counsel also asked why would AP suggest a second round of sex? She was getting paid for her time whether they were having sex or playing Scrabble.

217I can think of a few possible reasons. Perhaps she was interested in getting a good “review” from him or a referral to one of his friends. Perhaps she thought it might encourage him to buy more time with her that night or later.

218I really do not know however whether any of these possibilities existed here.

219Counsel for Mr. Simeu suggested that she did it so that she could set him up.

220Crown counsel countered that counsel had never put that suggestion to AP.

221She was right about that, but in all fairness to counsel, the question only came up later when Crown counsel asked it of Mr. Simeu.

222Crown counsel also suggested that AP was less likely to suggest another round of sex because she identified as a lesbian.

223I will simply say that this was also a non-factor in my mind when assessing what she would or would not have done.

224I am mindful of the admonition from the Ontario Court of Appeal that I should “avoid speculative reasoning that invokes "common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice”. (R. v. J.C., 2021 ONCA 131, at para. 58).

225Based on the evidence before me, I do not know who suggested that they engage in a second round of sex. Further I find that nothing really turns on this.

226Mr. Simeu testified that MM threatened to send bikers after him. She testified that she did not do that. She threatened to send police. Mr. Simeu testified that she never said anything about calling police. Mr. Simeu also testified that he was unaware of the fact that AP and MM were speaking to the police.

227Based on the evidence of EM, I was satisfied that Mr. Simeu was genuinely surprised to learn that the police were at his door. That is more consistent with his version of events and inconsistent with that of MM.

228Crown counsel argued that I can consider Mr. Simeu’s behaviour while in police custody as being so similar to his behaviour while he was with AP that it serves to corroborate her version of events.

229She argued further that these events were in such close proximity to each other that a similar act application was not necessary.

230I have problems with both arguments.

231I think that a similar act application should have been brought before I can do what Crown counsel has asked me to do.

232The bigger problem for Crown counsel is that I am not satisfied that there is any probative value in considering Mr. Simeu’s behaviour at the police station in any event.

233First of all, Mr. Simeu agreed that he said and did many of the things that AP and MM alleged. He said however that these things were in response to him being provoked by the threats made by AP’s male friend and by MM.

234That of course is contrary to the Crown’s position that nobody threatened him at the condo.

235I am not satisfied that those aspects of Mr. Simeu’s behaviour at the police station is any more consistent with the Crown position than it is with that taken by Mr. Simeu.

236Crown counsel did particularize her argument to stress that AP described Mr. Simeu as getting ignorant and not listening which was similar to his behaviour with police.

237I note however the very different circumstances between what the Crown argues happened in the condo and what happened between Mr. Simeu and the police. I will say more about this in my analysis of the assault police charge later.

238I have taken into account the fact that Mr. Simeu has an extensive record for crimes of dishonesty and that the most recent conviction was within the past year.

239I have also taken into account the fact that he has a motive to lie to the court.

240These are both amongst the various factors I have considered in assessing his credibility.

241After considering all of the above, I find that I am not certain to the requisite degree as to what happened between Mr. Simeu and AP.

242I am far from convinced that events unfolded in the manner described by Mr. Simeu. However, I find that his version of events is plausible.

243I accept that it is possible that AP’s version of events might be true. I am however just as far from being convinced that events unfolded in the manner described by her.

244The onus is on the Crown to prove the essential elements of the offences beyond a reasonable doubt.

245I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Simeu threatened AP in any way.

246I am not satisfied that Crown has proven beyond a reasonable doubt that he blocked her way or otherwise confined her in his condo.

247The charges of threatening and unlawful confinement are dismissed.

Assault Police

248I make the following comments at the outset of my analysis of the evidence regarding Mr. Simeu’s interaction with the police that night.

249The police officers in this case clearly believed that they were dealing with two dangerous men who were holding a young woman captive. This just as clearly coloured their dealings with him and their perceptions of him.

250The police witnesses also fell into the bad habit of using police understatement to describe what was happening.

251EM testified that Mr. Simeu fell to the ground after EM pulled him out of the doorway to the condo unit.

252Mr. Simeu did not simply fall to the ground. By EM’s own account Mr. Simeu may have fallen as a result of EM’s actions. Further, given EM’s first words were “Police. Get down!”, it is clear to me that EM wanted Mr. Simeu to be on the ground.

253JM testified that Mr. Simeu was removed from the doorway and was grounded by the TRU officers

254CB said that “We (JM and CB) pulled him down to the ground”.

255I should make it clear that I am not commenting on the degree of force used here. I have no reason to conclude that it was not reasonable in the circumstances. I am commenting solely on EM’s attempts to downplay what he and the other police did.

256That becomes relevant when considering what EM did later and why he did it.

257EM testified that he did place his hand on Mr. Simeu’s face and push it to the side. He said he did so because Mr. Simeu looked like he might be thinking of spitting at one of the police officers. During cross-examination, it was suggested that Mr. Simeu was simply turning head to speak to an officer, Crown counsel objected saying “I’m not certain that this Officer can speculate as to what was in someone else’s mind or somebody else’s intention.”. That ignored the fact that EM had already testified in chief that he had acted on his speculation as to what was in Mr. Simeu’s mind.

258Mr. Simeu testified that a police officer pushed his face. He denied ever intending to spit at anyone.

259Everyone agreed that Mr. Simeu did not spit on anyone.

260JM and CB did not even see EM push Mr. Simeu’s face.

261This was consistent with the tendency of all of the police witnesses to not see anything that any other officers did to Mr. Simeu.

262It was also consistent with their perception that they were dealing with a dangerous man who had been holding a young woman captive in his condo unit.

263They did not see someone who had peaceably opened the door to his unit, been grabbed and taken to the ground by force and had his arms wrestled behind his back where handcuffs were attached before he was marched down the stairs to the exit and then across the winter ground in his stocking feet to the police car. Accordingly they appeared surprised that he might not feel inclined to cooperate with them.

264Again, I am not passing judgment on the degree of force used by the police officers.

265I am however looking at Mr. Simeu’s response from a more neutral perspective and can understand how he might feel that he had been treated rather roughly and that it should not be surprising that he was quite unhappy about this.

266Similarly, where the police officers saw a man who was resisting them while going down the stairs including dropping deadweight in their arms, I recognize that there might be something to Mr. Simeu’s explanation that he was unsure of his footing what with losing his glasses and being directed down the stairs by the police at a pace determined by them and that he simply slipped and fell.

267All three police officers agreed with Mr. Simeu that he lost his glasses at some point and that he made a fuss about this.

268Their evidence varied in the details.

269According to EM, they were down at the 1st level when Mr. Simeu began demanding his glasses. EM ran up to 3rd level, found glasses and brought them to Mr. Simeu. This appeared to calm him down

270JM said they were going downstairs when the glasses fell off. This made Mr. Simeu more agitated. They picked his glasses up and said they would replace them downstairs. He refused and sat down and they put his glasses on him

271Everyone agreed that he calmed down once he got his glasses on again.

272Mr. Simeu testified that he could not see without his glasses and that he was unsure of his footing on the stairs as a result.

273EM testified that Mr. Simeu did not have shoes on when he was beside the police car.

274CB did not recall if Mr. Simeu was wearing shoes.

275Mr. Simeu did not testify as to whether he was wearing shoes then or not.

276I am prepared to infer that it would not make Mr. Simeu feel any more cooperative with the police officers if they had marched him across the cold and muddy ground and made him stand there in his stocking feet while they searched him.

277Most of the above is irrelevant to my determination of this case. I have included it because of Crown counsel’s submission that Mr. Simeu’s attitude and behaviour at the police station is corroborative to some degree of AP’s evidence as to his attitude and behaviour in the condo. I have rejected that submission because of how different the circumstances were in those two places.

278With regard to Mr. Simeu’s actions in the booking room, Crown counsel noted that the Staff Sergeant was polite with Mr. Simeu, calling him “Sir” while Mr. Simeu was rude and ignorant in return. Counsel failed to note that Mr. Simeu initially responded with equally good manners, referring to the Staff Sergeant as “Ma’am”. I agree that he quickly degenerated into being rude and ignorant after this but overlooking contrary facts is not a good way for anyone to make their case.

279I note that Mr. Simeu also testified that he had become quite rude and ignorant while in the booking room.

280All of this occurred after he had been pulled from his condo unit and taken forcibly to the ground. His arms were pulled behind his back and he was handcuffed. He was pulled to his feet and marched down the hall and then down flights of stairs. A police officer pushed his face at one point. His glasses were knocked off at either that point or later on and he had trouble seeing as he was taken down the stairs. He was marched across muddy winter ground apparently in his stocking feet and held next to a police car while they searched him.

281These circumstances are vastly different from what AP and MM said was happening in the condo earlier.

282Things improved initially in the booking room but when Mr. Simeu did not do what he was told to do, force was again applied. At some point they tried to take his glasses. At another point an officer pushed him in the face and then punched him in the head. He was taunted with the fact that he needed to vacate the room so that his friend could be processed.

283Up until then Mr. Simeu did not even know that his friend had been arrested too and possibly subjected to similar treatment.

284I find these circumstances to be so different from those present earlier in the condo that I cannot accept the Crown submission that Mr. Simeu’s behaviour at the police station is in any way corroborative of AP’s version of events.

285With regard to the assault police charge, Mr. Simeu denied kicking CB.

286CB testified that Mr. Simeu did kick him.

287In his recounting of what happened in the booking room, CB fell back into police-speak saying that the police officers were trying to “help” Mr. Simeu to his cell. They were not trying to “help” him do anything. They were trying to physically force him, against his will, to do what they wanted him to do which was to go to a cell.

288After we watched the video recordings of what happened in the booking room, CB testified that he saw Mr. Simeu kick him. Try as I might, I did not see Mr. Simeu’s foot make contact with CB. I also did not see Mr. Simeu moving his leg in any way that might be described as an intentional act, let alone a kick.

289CB’s assessment of other aspects of the video make me further question his reliability as a witness.

290CB testified that he did not see Constable D place his hand on Mr. Simeu’s face. I saw this.

291CB testified that he did not see Constable D punch Mr. Simeu twice on his head. Again, I did see this.

292Again I stress that I am not determining whether this was a reasonable use of force. My concern is that this police witness was apparently unable to see what another police officer did to an accused person. CB was in my assessment an unreliable witness.

293Finally, Crown counsel argued that Mr. Simeu was moving his whole body including his arms and legs in an attempt to resist the police efforts.

294I did not see this either.

295I saw Mr. Simeu failing to cooperate with the police. He was making life very difficult for them. But any movement of his body that I saw at the relevant time was the result of the police moving him.

296I note that he was not charged with resisting police or obstructing police. He was charged with assaulting a police officer.

297The Crown has failed to prove that assault beyond a reasonable doubt.

298The charge of assaulting a police officer is also dismissed.

Released: November 15, 2021 Signed: Justice D.A. Harris